IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150601

Docket: S071882

Registry:
Vancouver

Between:

Denis A.
Provencher

Plaintiff

And

St. Paul’s
Hospital, Paladin Security and Security guard

E.R. St. Paul’s
Emergency Room Paladin Security

and Paul M.
Eigeldinger

Defendants

Before:
The Honourable Madam Justice Dardi

Reasons for Judgment

introduction

[1]           
The plaintiff, Dennis Provencher, seeks damages in relation to an
incident that occurred in the early morning hours of March 17, 2006. The
plaintiff alleges that he was assaulted by the defendant, Paul Eigeldinger, in
the emergency room area at St. Paul’s Hospital (the “Incident”). Mr. Eigeldinger
is employed as a security guard by Paladin Security Group Ltd. (“Paladin”).

[2]           
The plaintiff alleges an assault and battery and claims general damages
for the injuries he sustained. He also claims damages for the loss of
housekeeping capacity, cost of future care, and special damages.

[3]           
The plaintiff asserts that the injuries he sustained include migraine
headaches, vertigo, tinnitus, hearing problems, short-term memory loss, and
post-traumatic stress disorder. In addition he claims that he suffered an
aggravation of his pre-existing musculoskeletal injuries to his neck and back.

[4]           
The plaintiff represented himself throughout this proceeding. The
defendants were represented by counsel.

[5]           
The case was complicated by the fact that witnesses were required to
recall material events after more than eight years after the Incident occurred.

[6]           
Prior to embarking on the analysis of the issues in this case, it is
necessary to review the evidence and my findings of fact.

The incident

[7]           
The plaintiff and the two security guards involved in the Incident, Paul
Eigeldinger and Michael Bain, gave starkly conflicting testimony on the material
events of March 17, 2006. Accordingly, the pivotal issue for determination
is the assessment of their conflicting testimony.

Evidence of the Plaintiff

[8]           
In the early morning hours of March 17, 2006, the plaintiff was
suffering from a headache and neck and chest pain radiating down into his
shoulder. The plaintiff had previously experienced similar symptoms, which had
required medical attention. The plaintiff decided to seek medical assistance,
and attended at the emergency ward of St. Paul’s Hospital (“St. Paul’s”).
At the material time, the plaintiff was wearing a baseball hat, a hoodie,
pants, a long coat, and boots.

[9]           
At the time of the Incident, the plaintiff was 58 years old. He has lived
in the same apartment in the west end of Vancouver since 2001. He related to
the court that he is an active member of that community. He was not working at
the material time as he has been on disability since approximately 2005. The
plaintiff has some physical limitations, and uses a cane. Based on my
observations, the plaintiff was smaller in stature than the two security
guards.

[10]       
As part of his medical treatment plan, the plaintiff has been prescribed
certain medications. At the time of the Incident, he had taken his regular
medication. However, he had not taken any Dilaudid. He does not take this
particular medication, which is an opioid, when he drinks alcohol. The
plaintiff admitted to drinking two beers before going to St. Paul’s.

[11]       
The plaintiff entered the St. Paul’s emergency room and sat down without
checking in, as he was tired and there were two people already in line to admit
themselves. Within five to seven minutes of sitting down the plaintiff’s pain
began to subside. The plaintiff had no intention of causing any disturbance. Mr. Eigeldinger
abruptly jumped in front of the plaintiff without identifying himself and asked
him what he was doing in the emergency ward. The plaintiff did not realize Mr. Eigeldinger
was a security guard. Therefore the plaintiff told him that he was there to
visit someone and gave him a false name in order to have Mr. Eigeldinger stop
bothering him. The plaintiff then observed Mr. Eigeldinger walk to a counter
near the nurses’ station. It was only then that the plaintiff realized that Mr. Eigeldinger
might have been a security guard.

[12]       
Within a few minutes, Mr. Eigeldinger turned around and walked back
towards the plaintiff.  Mr. Eigeldinger loudly exclaimed “You’re not
allowed in here!” and grabbed the plaintiff  in a bear hug, lifting him out of
his chair. Mr. Eigeldinger carried the plaintiff through the doors into
the parking lot and ejected him from St. Paul’s. As he was being ejected, the
plaintiff fell backwards onto the ground.

[13]       
According to the plaintiff “everything went black” and when he woke up
he was lying on the ground looking up at the sky. The plaintiff says he lost
consciousness for an unknown period of time. The plaintiff claims that he sustained
a laceration to the back of his head during the Incident. He woke up and felt
blood “pouring out of his head”. He felt he was “left for dead”. When he got himself
up he saw no one. The plaintiff describes feeling “dizzy and wobbly” upon
regaining consciousness.

[14]       
The plaintiff stood up and staggered towards the emergency room entrance.
As he did so, he observed Mr. Eigeldinger exit with another security guard,
Mr. Bain. According to the plaintiff, Mr. Bain was not involved in
the plaintiff’s actual ejection from the hospital. The plaintiff heard the
guards shout “get out of here, you’re barred”. The plaintiff then proceeded to
call the police from a payphone at the corner of Comox and Burrard Street.
After the plaintiff called the police, he headed back towards the entrance to
the emergency room and collapsed in the parking lot.

[15]       
When the police arrived, the plaintiff related his account of the events
to them. The plaintiff remained outside with one police officer, while another
police officer went inside St. Paul’s. The police officers called an ambulance
which transported the plaintiff to Vancouver General Hospital (“VGH”), where
his head wound was stapled. After he was discharged from VGH the plaintiff went
home. Later that day he became dizzy and nauseous. He called an ambulance and
was eventually taken to St. Paul’s, where he was seen as an outpatient for
his head injury. He stated that he was diagnosed with a concussion. After he
underwent a CT scan, he was sent home.

[16]       
A few days later, on March 20, 2006, the plaintiff saw his family
doctor, Dr. Baird.

Evidence of Mr. Eigeldinger

[17]       
Mr. Eigeldinger, who was 39 years old at trial, worked for Paladin
as a full-time security guard at St. Paul’s from 2003 to 2007. Mr. Eigeldinger
is six feet, four inches tall and weighs 270 pounds. He described his uniform
as being comprised of dark blue or black cargo pants, a duty belt with a
flashlight, gloves, a radio, and a white shirt with Paladin Security printed on
the front and Paladin emblems on each side.

[18]       
Mr. Eigeldinger received basic security training when he first
started working for Paladin. The security guards also receive crisis prevention
and intervention training which addresses the subject of how to restrain
individuals. Mr. Eigeldinger indicated that this training protocol
requires the guards to initiate engagement by asking an individual to leave the
hospital. Depending on the response received, the protocol may then require an
increase in the level of engagement. Mr. Eigeldinger stated that he
followed the pertinent protocol at all material times.

[19]       
On the night in question there were four security guards on shift,
including Mr. Eigeldinger and Mr. Bain. Mr. Eigeldinger, who was
in uniform, was working as shift supervisor. He observed the plaintiff enter
the emergency waiting room without checking in. Mr. Eigeldinger approached
the plaintiff and asked him what he was doing there and why he had not checked
in. The plaintiff told him he was there to visit a friend and gave him a name,
which Mr. Eigeldinger determined was false. Mr. Eigeldinger prepared
an incident report, in which he  described the plaintiff as “an unknown man,
vagrant looking”.

[20]       
According to Mr. Eigeldinger, he walked back over to the plaintiff and
asked him what his business was at the hospital, because there was no one in
the hospital with that name. The plaintiff replied “leave me alone”. Mr. Eigeldinger
answered that the plaintiff needed a reason to be in the hospital and if he did
not have a reason, he would have to leave. The plaintiff swore at him. At that
point, Mr. Eigeldinger repeated his request for the plaintiff to leave and
told him if he did not leave he would be charged with “assault by trespass”. At
that moment, he saw his colleague Mr. Bain walking towards them. Mr. Eigeldinger
again asked the plaintiff to leave and the plaintiff said “I’m not going
anywhere”. He touched the plaintiff’s shoulder and the plaintiff yanked his
shoulder away. At that point, Mr. Eigeldinger grabbed the plaintiff’s arm
in a restraining movement and raised him out of his chair. Mr. Bain who,
according to Mr. Eigeldinger, had arrived at the scene, assisted him by
grabbing the plaintiff’s other arm. The two men walked the plaintiff through
the main exit door of the emergency department. The plaintiff yelled “you can’t
do this to me” and displayed “pre-assaultive” behaviour.

[21]       
In the ambulance bay area the plaintiff continued to struggle and he was
verbally and physically combative. During the struggle, the plaintiff brought
his cane towards Mr. Eigeldinger’s face. At that point, Mr. Eigeldinger
grabbed the plaintiff’s shirt and performed a takedown restraint manoeuvre to
bring the plaintiff to the ground. Once the plaintiff was on the ground, Mr. Eigeldinger
told him that if he stopped fighting they would not press charges and would let
him go. The plaintiff loosened up, ceased fighting and stated “I’m done”. Mr. Eigeldinger
does not recall the plaintiff losing consciousness or sustaining any injuries.

[22]       
According to Mr. Eigeldinger the two guards walked the plaintiff across
the parking lot area to the property line at the Burrard Street sidewalk. At
that point, Mr. Eigeldinger told the plaintiff that he was not welcome
back to St. Paul’s. After a few minutes, Mr. Eigeldinger observed the
plaintiff walk away and use a payphone located across Burrard Street.

[23]       
In cross-examination Mr. Eigeldinger stated that it was only after
the plaintiff had left the hospital property that he had discovered that Mr. Bain
had injured his hand.

[24]       
The police attended at St. Paul’s and Mr. Eigeldinger gave
them a brief overview of what happened. After the police left, he prepared the incident
report which was marked as an exhibit at trial.

[25]       
With respect to the security camera footage, Mr. Eigeldinger recalls
a monitor at the security desk. However, he maintains he did not have the
ability to review or rewind the footage. He apparently made no inquiries
regarding retention of the pertinent video footage.

Evidence of Mr. Bain

[26]       
Mr. Bain, who is 31 years old, was employed by Paladin as a
security guard at St. Paul’s from 2003 to 2006. According to Mr. Bain,
there was a security camera system in place at the time the Incident occurred. However,
the security guards did not have access to the digital video recording system
which was secured in the basement of St. Paul’s. He made no request that
the pertinent video footage be retained.

[27]       
On the night of the Incident, Mr. Bain, who was also in uniform, recalls
walking toward the emergency room. He observed Mr. Eigeldinger and the
plaintiff standing and engaged in a struggle. In particular, while they were in
the emergency room Mr. Bain saw the plaintiff raise his cane in an attempt
to strike Mr. Eigeldinger. Mr. Bain went to assist Mr. Eigeldinger
in restraining and transferring the plaintiff from the emergency room into the
ambulance bay area.

[28]       
Once they were outside, the two guards brought the plaintiff to the
ground with his face down. At some point during the struggle, Mr. Bain hit
his hand on a brick pillar, causing a puncture wound on his left hand between
his thumb and forefinger. Once Mr. Eigeldinger had the plaintiff under
control, Mr. Bain went back inside the emergency ward to have his wound
treated. Mr. Bain did not walk the plaintiff to the edge of the hospital
property.

[29]       
Mr. Bain does not recall observing the plaintiff with any visible
injuries. Nor does he recall having any awareness that the plaintiff had been
injured. According to Mr. Bain, the plaintiff was coherent and verbal
throughout the Incident.

[30]       
Mr. Bain maintains that he has no recollection of the police
attendance at the hospital following the Incident.

Discussion

[31]       
The plaintiff strenuously asserts that his version of the material events
should be accepted and that the security guards have fabricated their testimony.
This assertion serves as the factual underpinning of his claim.

[32]       
Ultimately, the Court’s assessment of the credibility of a witness’
testimony turns on whether the evidence is in “harmony with the preponderance
of the probabilities which a practical and informed person would readily
recognize as reasonable in that place and in those conditions”: Faryna v.
Chorny, [1952] 2 D.L.R. 354 (C.A.) at 357; Bradshaw v. Stenner, 2010
BCSC 1398 at para. 186, aff’d 2012 BCCA 296.

[33]       
On the balance of probabilities, I prefer the plaintiff’s evidence
to that of Mr. Eigeldinger and Mr. Bain.

[34]       
Overall I found the plaintiff to be a forthright and credible witness
who did not embellish his testimony. He did not waiver in the face of a
thorough cross-examination. I accept that on March 17, 2006 the plaintiff
sustained a laceration on the back of his head, which required staples. This
was not seriously contested by the defence. The plaintiff produced at trial the
cap and hoodie he was wearing at the time which show blood stains consistent
with the head injury he described. Significantly the nature of the plaintiff’s head
injury corroborates his version of events. There were some frailties in his
evidence; for example, it appears that he was confused as to whether he returned
to St. Paul’s for treatment of his head injury at 6:00 a.m. or 6:00 p.m. on
March 17, 2006. However, I find this relatively minor discrepancy
does not affect his credibility and is reflective of the injury he sustained.

[35]       
The nature of the injury the plaintiff sustained is inconsistent with
the guards’ version of the events. It does not accord with their assertion that
they restrained the plaintiff in a face-down position as per their training
protocol. The defendants were unable to provide any explanation as to how the
plaintiff sustained a head injury. I appreciate that the Incident happened more
than eight years before the trial. Nonetheless, the discrepancies in the two
guards’ evidence, when considered cumulatively, caused me concern with respect
to their testimony. By way of example, Mr. Bain candidly acknowledged that
he had spoken to Mr. Eigeldinger a few days prior to his testimony,
whereas Mr. Eigeldinger maintained he had no recall of having had any
discussions with Mr. Bain since leaving his position at St. Paul’s
several years ago. I do not accept Mr. Bain’s testimony as to how he
injured his hand. I am not satisfied that on the evidence I am able to
determine the source of his hand injury.

[36]       
Andrew Pattison, who is currently the Director of Operations responsible
for healthcare clients at Paladin, testified regarding the security camera
system in place at St. Paul’s in 2006. There was a camera in the main
emergency room waiting room and on the exterior of the entrance to the ER
ambulance bay. These cameras were “pan-tilt-zoom” and were on “live feed” in
the area where the Incident occurred. The camera angle could be adjusted
manually by a joystick. There are two monitors in the hospital to view the
images from the security camera. One was at the security kiosk in the emergency
room. The other was attached to the DVR located in a secured room in the
basement of St. Paul’s. There was no playback feature. However, the
security tapes were retained in a central digital video recorder in the secured
room in the basement of St. Paul’s. Security personnel did not have access
to that room.

[37]       
According to Mr. Pattison, the usual practice was not to retain security
tapes for longer than one year, unless required by law enforcement or hospital
administration. He maintained that there was no protocol for retention of the
security tapes. In any case, no video footage of the Incident was proffered in
evidence, despite an incident report being filed by Mr. Eigeldinger, Mr. Bain
allegedly sustaining an injury, and both the police and an ambulance attending
the scene.

[38]       
In the final analysis, I accept the plaintiff’s version of the Incident.
In my view, the plaintiff’s evidence accords with the preponderance of
probabilities a reasonable person would recognize in the circumstances of this
case. In my assessment, I have relied on the totality of the evidence, taking
into account the inherent probabilities of the case.

Prior and Intervening Accidents

[39]       
The plaintiff’s prior history of injuries may be summarized as follows:

·               
In 1985, the plaintiff had an industrial accident while working
at a mill. This resulted in a C7 fracture and permanent damage to his vertebrae
at T3 and T4. Since that time, he has suffered from chronic neck and back pain,
neuralgia, and problems with his hips.

·               
In 1997, the plaintiff was assaulted by a passenger while driving
a taxi. He sustained a mild concussion, altered hearing in his left ear,
headaches, dizziness, jaw, neck, and back pain.

·               
In 2001, the plaintiff was a passenger on a bus which hit a moose.
This incident aggravated his pre-existing neck injury.

·               
In 2005, the plaintiff was struck by a car as he crossed the
street. This incident again aggravated his prior injuries. He stated it “whacked
[his] spine out of joint”.

·               
In 2005, in another incident, the plaintiff was a passenger on a
bus which braked suddenly causing him to lose his balance. This aggravated his
neck and back symptoms.

·               
In or around 2009, sometime after the Incident, the plaintiff had
a bicycle accident. He was thrown from his bike and struck his head on the grass.
Although he was wearing a helmet, he suffered an aggravation of his
pre-existing thoracic spine injuries. In addition, he injured his left shoulder
and left hip and his headache pattern was aggravated.

ISSUES

[40]       
In assessing the plaintiff’s claim I must determine the following:

(i)            
Was there an assault and battery? If so, can the defendants avail
themselves of any defences?

(ii)           
If there was an assault and battery, who is liable?

(iii)          
What injuries did the plaintiff sustain in the Incident?

(iv)         
If any of the defendants are liable, what are the plaintiff’s damages?

analysis

(i)            
Was there an assault and battery? If so, can the defendants avail themselves
of any defences?

[41]       
The authorities establish that the tort of assault is the intentional
creation of the apprehension of an imminent threat of harm. It is rooted in a wrongful
act which disturbs the victim’s sense of security. The tort of battery is the
intentional infliction of harmful or offensive conduct or unlawful force on
another person. The legal wrong is the act of violating the bodily integrity of
another: Lewis N. Klar, Tort Law, 5th ed. (Toronto: Carswell, 2012) at
43 and 46.

[42]       
On the evidence I prefer, the plaintiff has established the requisite
elements of assault and battery. Accordingly, the burden shifts to the
defendants to establish that their actions were justified.

[43]       
I am not persuaded that Mr. Eigeldinger was acting within his
rights in protecting St. Paul’s from the plaintiff’s trespass. The
protection of property defence is contingent on a finding that the plaintiff
was a trespasser. In Ball v. Mathorpe et. al., 15 D.L.R. (3d) 99 (Co.
Ct.) the court held, at para. 6, that a person constituted a trespasser upon
their refusal to leave the premises, after having been made aware of the fact
they were no longer welcome there. Critically, the person must be given a
reasonable opportunity to leave the premises. The defence argues that the plaintiff
was given a reasonable opportunity to do so and that he refused to cooperate.
In my view the evidence in this case does not support such a finding. In these
circumstances, I do not accept that Mr. Eigeldinger was permitted to use
reasonable force to remove the plaintiff from the hospital premises.

[44]       
In any event, even if I had concluded otherwise, I find that Mr. Eigeldinger
used excessive force in removing the plaintiff from the premises. The plaintiff
clearly sustained a significant laceration on the back of his head. If he had
been “brought to the ground”, in a manner consistent with Paladin’s training protocol,
it was unlikely that he would have sustained an injury on the back of his head.

[45]       
The defence also argues that Mr. Eigeldinger was acting in
self-defence. I am not persuaded by that submission. Self-defence flows from
and is limited by its necessity. If a defendant reasonably perceives an
imminent attack, they are entitled to use reasonable force to repel said
attack: Buchy v. Villars, 2008 BCSC 385 at para. 112. The defendants
assert that a certain point during the events leading to his ejection from St.
Paul’s, the plaintiff became aggressive and raised his cane at Mr. Eigeldinger.
As noted above, I do not accept Mr. Eigeldinger’s account of the Incident.
I find that there was no attack from which Mr. Eigeldinger would be
entitled to defend himself. For completeness, even if I were to accept that the
plaintiff provoked or attacked Mr. Eigeldinger, I find that Mr. Eigeldinger
used greater force than was reasonably necessary to assert physical control
over the plaintiff. In doing so, I have considered the relative ages and
physical stature of the two men.

[46]       
In short, I am not persuaded that the circumstances warranted defensive
action and, in any case, the force applied was excessive and exceeded what was
reasonably necessary in all the circumstances.

(ii)          
If there was an assault and battery, who is liable?

[47]       
The plaintiff has successfully established a claim for assault and
battery. I find that Paladin is the party liable for any damages that are
awarded. Paladin concedes that it is vicariously liable for the tortious
actions of its employees, where those actions were within the scope of their
employment.

[48]       
I accept the defendants’ submission that there is no legal basis
upon which St. Paul’s can be found liable for assault or battery in this
case. St. Paul’s Hospital is not a legal entity. Rather, it is a facility
owned and operated by Providence Health Care (“Providence”). At the time of the
Incident, Providence had a contract with Paladin to provide security services
to St. Paul’s. Paladin concedes it was an independent contractor of
Providence at the time of the Incident, and that Providence is not vicariously
liable for any tortious conduct of Paladin or its employees.

(iii)        
What injuries did the plaintiff sustain in the Incident?

[49]       
In view of the plaintiff having established the liability of Paladin, I turn
to the assessment of the plaintiff’s damages.

[50]       
The plaintiff has a significant and unfortunate medical history. The
constellation of his various medical afflictions compounded the complexity of
the assessment of damages in this case.

Symptoms Prior to the Incident

[51]       
The evidence overwhelmingly establishes that the plaintiff suffered from
chronic pain prior to the Incident. Dr. Lawson Baird has been the
plaintiff’s family physician since 2002. He provided a report and testified at
trial. Dr. Baird candidly acknowledged in cross-examination that, prior to the
Incident, the plaintiff suffered from a multitude of pre-existing medical
issues. These were significant, and affected almost all aspects of the
plaintiff’s daily living activities.

[52]       
Dr. Baird confirmed during cross-examination that the plaintiff had
attended his office on March 2, 2006, a few weeks before the Incident, and
reported “pain” which was “pretty bad”. Dr. Baird prescribed him Dilaudid,
which he confirmed is an opioid medication.

[53]       
The plaintiff confirmed the truth of the contents of his application for
disability benefits dated August 2004. The document sets out a variety of the
plaintiff’s medical issues at the time, including of degenerative spine,
osteoarthritis in hips, neuralgia causing headaches on the left side of his
head, contractures of the hand, macular degeneration primarily in the right eye,
lumps on feet, and diabetes. It also sets out the plaintiff’s psychological and
cognitive symptoms at the time. This included impaired memory and cognitive
function stemming from use of medication, depression, anxiety, withdrawal and
isolation.

[54]       
Notably Dr. Baird acknowledged that the plaintiff’s chronic pain
intensified subsequent to his cycling accident in 2009.

Dr. Baird

[55]       
Dr. Baird provided expert evidence in the field of the family
medicine. His report dated January 24, 2013, was tendered into evidence. In his
report, he provided the following summary of injuries the plaintiff sustained
in the Incident:

·               
Traumatic head and brain injury and concussion [not graded]. Dr. Baird
confirmed that the residual symptoms that could be compatible with brain damage
had “not been evaluated in detail by a neurologist” and he stated that there are
“multiple overlying factors and competing diagnoses”.

·               
Post-Traumatic Stress Disorder (“PTSD”).

·               
Significant aggravation of previous musculoskeletal injuries,
including the cervical spine, upper back, lower back and hip, and shoulders. Dr. Baird
noted that the aggravation of “cervical spine symptoms” remains “significantly
active” but notes the other areas eventually settled to baseline.

·               
Persistent and significantly aggravated headaches of a moderate
but quite frequent nature, plus less frequent but very severe periodic migraine
headaches associated with dizziness and nausea.

·               
Chronic tinnitus, most likely deriving from the trauma to his
head.

·               
Notably, Dr. Baird’s report does not provide any opinion
evidence that the plaintiff suffered from vertigo as a result of the Incident.

[56]       
Dr. Baird also states in his report that over the many years of
treating the plaintiff, he had not seen any evidence of any alcohol or
substance abuse problems.

Dr. Kemble

[57]       
Dr. Kemble, who has been practicing as a neurologist since 1971, was
called by the defence. Dr. Kemble’s opinion may be summarized as follows:

·               
It is unlikely that the plaintiff’s hearing impairment is related
to any injuries he sustained in the Incident. According to Dr. Kemble, if an
individual sustains nerve damage causing hearing loss, the nerve damage will
stay the same or improve. It will not worsen. The plaintiff’s hearing tests
showed a gradual loss of hearing over time. Thus, it was likely that the
plaintiff’s hearing loss had developed gradually over time and was not related
to the Incident.

·               
There did not appear to be any clear change in patterns of the
plaintiff’s headaches since the Incident.

·               
The Incident “probably accentuated his pre-existing tendency to
develop cervical pain”.

·               
The accentuation of the plaintiff’s lower back and hip pain has
reduced to its pre-Incident levels.

·               
The plaintiff had pre-existing left arm pain and numbness and
severe pain in his neck. Dr. Kemble concluded that it was “dubious that
there had been any significant accentuation of the symptoms in [the plaintiff’s]
left arm as a result of the [Incident]”.

·               
While it is possible the plaintiff sustained a minor closed brain
injury, it should have fully resolved within three to six months or at the most
two years after the Incident. Dr. Kemble observed that there was no
evidence the plaintiff experienced amnesia and acute cognitive impairment
immediately after the Incident. Dr. Kemble identified such symptoms as the
major indicators of a closed head injury. Significantly these were absent in
this case.  Moreover, according to Dr. Kemble, if an individual has sustained a
significant closed head injury, their symptoms would remain the same or
progressively improve. Dr. Kemble noted the plaintiff’s complaint of short term
memory and impaired cognition which seemed to have worsened in 2013.

·               
Dr. Kemble was unable to find any clear history of any
pre-existing tinnitus in the plaintiff’s medical records he reviewed. He stated
that it was possible but not probable that a minor closed head injury could
cause enough auditory nerve damage to provoke tinnitus. Dr. Kemble noted
that the plaintiff has a pre-Incident history of hearing difficulties, and that
often hearing difficulties are associated with tinnitus.

·               
With respect to the plaintiff’s reported vision difficulties in
his right eye, Dr. Kemble notes that the admitted previous difficulties
with vision were described by Dr. Helson Chew on May 16, 2001.

·               
With respect to psychological injury, Dr. Kemble opined as
follows:

Mr. Provencher has been more anxious and depressed
since the [Incident]. It was clear that he was anxious, when I interviewed and
examined him. He became quite tearful when relating the events leading to the [Incident],
which he alleged. It is probable that he has sustained acute difficulties with
anxiety since the [Incident]. I would recommend that he should see a
Psychologist for counseling in order to try and help with his anxiety. He might
benefit from taking medication to try and control the anxiety and the probable
associated depression. It may also be worthwhile for him to be seen by a
Psychiatrist for a formal assessment and advice about future management.

·               
Dr. Kemble concluded that the plaintiff’s “major current
disability seems to be his level of emotional stress”.

Causation

[58]       
A central issue in this case is whether the plaintiff’s ongoing physical
and psychological symptoms were caused by the Incident, or whether they are a
continuation of his pre-existing condition that pre-dated the Incident.

[59]       
The burden is on a plaintiff to establish causation on a balance of
probabilities. He or she must establish that a defendant’s wrongful act caused
both his injuries and the resulting losses. “The former is concerned with
establishing the existence of liability; the latter with the extent of that
liability”: Blackwater v. Plint, 2001 BCSC 997 at para. 363;
White v. Wang, 2014 BCSC 2416 at para. 69.

[60]       
A plaintiff need not establish that a defendant’s tortious conduct is
the sole cause of the injury. A defendant will be fully liable for the harm
suffered by a plaintiff, even if other causal factors for which he is not responsible
were at play in producing the harm, as long as the plaintiff establishes a
substantial connection between the injuries and the defendant’s wrongful act
beyond the “de minimus” range: Athey v. Leonati, [1996] 3
S.C.R. 458; Resurfice Corp v. Hanke, 2007 SCC 7; Farrant v. Laktin,
2011 BCCA 336 at paras. 9 and 11.

[61]       
The primary test to be applied in determining causation is commonly articulated
as the “but for” test. The plaintiff bears the burden of showing that “but for”
the wrongful act or omission of the defendant, the plaintiff’s injury would not
have occurred: Resurfice Corp. at paras. 21-22. The test for causation
is not to be applied too rigidly, and is to be contrasted with the more
exacting standard that approaches scientific certainty in the medical context: Athey
at paras. 13-17. It is essentially a practical question of fact which can
best be answered by ordinary common sense: Athey at para. 16;
Midgley v. Nguyen, 2013 BCSC 693 at para. 172.

[62]       
If causation for injuries is established, the defendants are liable to the
plaintiff for all of the losses flowing from his injuries. Such losses are
those which the plaintiff proves on a balance of probabilities would not have
occurred “but-for” the defendants’ wrongful act: Blackwater at para. 78;
Smith v. Knudsen, 2004 BCCA 613 at para. 26; White at para. 72.
The essential principle in the assessment of damages is that the plaintiff must
be placed in the position he or she would have been in, if not for the
defendant’s wrongful act. However, the defendant need not compensate the
plaintiff for injuries which were inherent in the plaintiff’s “original
position”: Athey at para. 35.

[63]       
In this case, because the plaintiff has pre-existing conditions, the
Court must consider how these conditions relate to his current complaints. This
is a crucial issue because the plaintiff was not a completely healthy person at
the time of the Incident. In Cornish v. Khunkhun, 2015 BCSC 52, Mr. Justice
Skolrood summarized the governing legal principles:

[138]    Where, as here, a
plaintiff has pre-existing conditions, the court must consider how those
conditions relate to the plaintiff’s current complaints. A defendant tortfeasor
is liable for all injuries caused by a tort even if those injuries are more
severe than might otherwise be the case due to the plaintiff’s pre-existing
condition (the “thin skull rule”). However, the defendant is liable only for
the injuries actually caused by the accident and not for any effects of the
pre-existing condition that the plaintiff would have experienced in any event
(the “crumbling skull rule”). Put another way, the defendant is liable for the
additional damage but not the pre-existing damage (Athey, at paras. 34-35).

[64]       
The principles which inform the analysis of causation of physical injury
apply to causation of psychological injury: Hunt v. Ugre, 2012 BCSC 1704
at para. 123.

[65]       
My findings on the injuries the plaintiff sustained in the Incident may
be summarized as follows:

·      
A head injury, more specifically a laceration to the back of his
head. I accept that for several weeks after the Incident, he experienced bouts
of dizziness. Dr. Baird’s description of “soft residual symptoms that
could be compatible with permanent persisting brain damage” is not sufficiently
specific to be diagnostic of a brain injury. I prefer Dr. Kemble’s opinion
that it is unlikely that the plaintiff sustained a significant closed brain injury.
In my view, the preponderance of the evidence falls short of establishing that
the plaintiff suffered a traumatic brain injury.

·      
I accept that the plaintiff experienced some aggravation of his
pre-existing cervical, back, and hip pain. The duration of that aggravation is
difficult to assess given the intervening cycling accident. On the totality of
the evidence, I find that for the most part any aggravation of the plaintiff’s
musculoskeletal injuries attributable to the Incident had resolved by the time
of the intervening cycling accident.

·      
The medical evidence clearly establishes that the plaintiff suffered
a psychological injury and continues to suffer to some degree from PTSD flowing
from the Incident. I accept Dr. Baird’s opinion in this regard. The
defence expert, Dr. Kemble, opined that it is probable that the plaintiff
has “sustained acute difficulties with anxiety” since the Incident. I accept
that the plaintiff accurately reported his symptoms in this regard to
Dr. Baird and Dr. Kemble. I recognize that the plaintiff
suffered from anxiety and depression associated with his chronic pain prior to
the Incident. However, on balance I find that, absent the Incident, the
plaintiff would not have developed his current constellation of psychological symptoms
associated with PTSD. These symptoms include acute emotional distress and the
recurrence of significant anxiety and panic response when recalling the
Incident. Further the plaintiff’ experiences a marked level of hypervigilance, fear
and feelings of vulnerability in public situations such as when he is using
public transportation.

·      
I accept Dr. Kemble’s opinion that it is unlikely that the
plaintiff’s hearing impairment is related to the Incident. I find that it is
probable that any impairment of hearing developed gradually over time and is
unrelated to the Incident.

·      
I am not persuaded that the plaintiff has established that the
pattern and frequency of his headaches changed as a result of the Incident. I accept
Dr. Kemble’s opinion in this regard.

·      
The evidence that I accept falls short of establishing on a
balance of probabilities that the injuries the plaintiff sustained in the
Incident caused his tinnitus. Dr. Kemble opined that it was possible, but
not probable that a minor closed head injury could cause nerve damage
sufficient to provoke tinnitus. Dr. Baird acknowledged on cross-examination
that tinnitus most commonly derives from chronic high-level noise exposure and
is seen less after injury. Notably the plaintiff worked in a mill from 1978 to
1985, in an environment which would have exposed him to consistently high level
noise. Dr. Kemble also noted that the plaintiff had a pre-Incident history
of hearing difficulties and that often tinnitus is associated with hearing
difficulties.

[66]       
In summary on this issue, based on the opinions of Dr. Baird and Dr. Kemble,
and in conjunction with the plaintiff’s evidence, I conclude that the plaintiff
has met the “but for” test mandated in the authorities. I am satisfied that it
is more likely than not that the plaintiff sustained a head injury, an
aggravation of his previous musculoskeletal injuries, and psychological injury
as a result of the Incident.

[67]       
I turn to address defence counsel’s submission that Dr. Baird’s
report tends “toward advocating”. I disagree. I found Dr. Baird to be a
careful and objective witness. It must be recognized that, although I did not
accept his report in its entirety, his evidence was vital to the court’s assessment
of the plaintiff’s damages in this case. The following observations of Madam
Justice Griffin in Deiter v. Boggs, 2009 BCSC 914, are apposite in this
case:

[31]      Thus, physicians who do
testify despite the inconvenience are performing a very important professional
and public duty. Coming to court to testify and to face cross-examination may
be the last thing a busy physician wants to do, faced with the burdens of
practice. Often a general physician is the one physician who knows the patient
best and who will have the longest history of treating the plaintiff before and
after the incident giving rise to the claim. This court is extremely
appreciative of the role physicians play in giving evidence.

(iv)        
What are the plaintiff’s damages?

[68]       
Next, I will address the plaintiff’s claim for damages under the
following headings:

(i)        
Non-pecuniary damages;

(ii)       Cost
of future care;

(iii)      Loss
of housekeeping capacity.

(i)       Non-pecuniary Damages

[69]       
The plaintiff seeks an award in the range of $150,000 for non-pecuniary
damages. The defence submits that non-pecuniary damages should be assessed in
the range of $10,000 to $20,000.

[70]       
Non-pecuniary damages are intended to compensate the plaintiff for pain,
suffering, and loss of enjoyment of life. While recognizing that the loss of
good health cannot be valued in monetary terms, the “functional approach”
attempts to assess the compensation required to provide the plaintiff with
reasonable solace for his injuries. The award should compensate the plaintiff
for the non-pecuniary loss he has suffered up to the date of the trial and for
that loss he will suffer in the future. An award for non-pecuniary damages must
be fair and reasonable to both parties: Lindal v. Lindal, [1981] 2
S.C.R. 629 at 637; Hmaied v. Wilkinson, 2010 BCSC 1074 at para. 55;
Farand v. Seidel, 2013 BCSC 323 at para. 69.

[71]       
Fairness is assessed by reference to awards made in comparable cases.
However, because of the requirement for an individualized assessment, it is
impossible to develop a “tariff”. Each case must be decided on its own unique
facts, because no two individual plaintiffs’ personal experiences in dealing
with their injuries and the adverse consequences of those injuries are
identical: Lindal at 637; Kuskis v. Hon Tin, 2008 BCSC 862 at
para. 136; Kapelus v. Hu, 2013 BCCA 86 at para. 15-16.

[72]       
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46,
Kirkpatrick J.A. enumerated the factors to be considered in awarding
non-pecuniary damages. The non-exhaustive list includes: the age of the
plaintiff; the nature of the injury; the severity and duration of pain; the
degree of disability; emotional suffering; the loss or impairment of life; the
impairment of family, marital, and social relationships; impairment of physical
and mental abilities; loss of lifestyle; and the plaintiff’s stoicism, which
should not penalize the plaintiff. I have taken these factors into
consideration.

[73]       
Although the plaintiff suffered from pre-existing conditions, I find
that the injuries he sustained in the Incident have caused him pain and
suffering and have deleteriously impacted his enjoyment of life. His
psychological injuries have persisted some eight years.

[74]       
I turn to address the plaintiff’s claim for aggravated damages.

[75]       
In Norberg v. Wynrib, [1992] 2 S.C.R. 226 at 263, La Forest J.
clarified that battery is actionable without proof of damage. He stated that
aggravated damages may be awarded if the battery has occurred in humiliating or
undignified circumstances, but they are not in addition to general damages. In
other words, general damages are to be assessed by “taking into account any
aggravating features of the case and to that extent increasing the amount
awarded”.

[76]       
In this case, the defendants’ conduct has caused the plaintiff to suffer
a psychological injury which I have taken into account in my assessment of
general damages. The defendants’ undignified and disrespectful treatment of the
plaintiff caused him great distress and exacerbated his anguish. He continues
to suffer psychologically as a consequence of the Incident.

[77]       
I have reviewed the authorities provided by the defence. Although the
cases are instructive, I do not propose to review them in detail, as they can
provide only general guidance. Considering the plaintiff’s unique
circumstances, I conclude a fair and reasonable award for general damages is $35,000,
which includes an element of aggravated damages.

[78]       
Finally, there is the issue of contributory negligence. The defence
asserts that the plaintiff contributed to his own injuries and that damages
should be reduced accordingly. I find this argument to be without merit.

(ii)      Loss of Housekeeping Capacity

[79]       
I next turn to address whether the plaintiff is entitled to compensation
for impaired housekeeping capacity.

[80]       
In Dykeman v. Porohowski, 2010 BCCA 36 at para. 28, Newbury J.A.
summarized the governing principles with respect to awarding damages of this
nature. She affirmed that damages for the loss of housekeeping capacity may be
awarded even though the plaintiff has not incurred any expense, because housekeeping
services were gratuitously replaced by a family member. Moreover, since the
award recognizes the impairment of housekeeping capacity, whether a plaintiff
is likely to hire such assistance in the future, does not inform the analysis; X. v. Y.,
2011 BCSC 944 at para. 256; O’Connell v. Yung, 2012 BCCA 57 at
para. 67. Recovery may be allowed for both the future loss of the ability
to perform household tasks as well as for the loss of such abilities prior to
trial. The amount of compensation awarded must be commensurate with the
plaintiff’s loss: Dykeman at para. 29; X. v. Y. at
para. 246.

[81]       
The evidence establishes that for some years prior to the Incident, and
by 2004, the plaintiff clearly required housekeeping services, because his
medical condition severely impacted his daily living activities. Moreover,
there was no evidence tendered as to the value of the household services that the
plaintiff can no longer perform. In all the circumstances, I have concluded
that the plaintiff’s loss in this regard does not justify a discrete award of
damages. His loss is more properly considered as a factor in the assessment of
his non-pecuniary damages. This is reflected in the non-pecuniary damages
I have awarded.

[82]       
In the result, I make no award for loss of housekeeping capacity.

(iii)     Cost of Future Care

[83]       
The plaintiff seeks compensation for the cost of psychological treatment
and counselling. The defence submits that the evidence does not support any
future care award.

[84]       
The purpose of an award for future care is to compensate a plaintiff for
costs which reasonably may be expected to be incurred to preserve and promote
the plaintiff’s mental and physical health: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.) at 78; Gigmac v. Insurance Corporation of British Columbia,
2012 BCCA 351 at para. 30. The items or services claimed must be
medically justified and reasonable: Milina at 84. In assessing what is
reasonably necessary to promote the plaintiff’s health, the court should also
consider whether the plaintiff is likely to use the items or services in the
future: Penner v. Insurance Corporation of British Columbia, 2011 BCCA
135 at paras. 12-14; Drodge v. Kozak, 2011 BCSC 1316 at
para. 194.

[85]       
The quantification of damages for the cost of future care is an
assessment, and not an exercise of precise accounting. As such, adjustments
must be made for “the contingency that the future may differ from what the
evidence at trial indicates”: Krangle (Guardian ad litem of) v.
Brisco, 2002 SCC 9 at para. 21.

[86]       
In order to address his PTSD, Dr. Baird referred the plaintiff to a
psychiatrist at VGH who in turn recommended that the plaintiff obtain the
appropriate psychological therapy. The cost was $260 per session and it was
recommended that the plaintiff attend a minimum of 20 sessions.

[87]       
The defence expert, Dr. Kemble, also recommended counselling or
psychotherapy to assist the plaintiff.

[88]       
On the medical evidence, I am satisfied that counselling is reasonably
necessary. Further, I am satisfied that, with the elimination of any obvious
financial impediment, the plaintiff would access such services.

[89]       
The evidence does not support a future care award for the other items
claimed by the plaintiff.

[90]       
On the totality of the evidence, and taking into account the relevant contingencies,
I assess an award in the amount of $4,000.

(iv)     Special Damages

[91]       
The plaintiff seeks special damages totalling $300. He produced receipts
for a sound machine in the amount of $225 and $75 for his attendance at the
tinnitus clinic at St. Paul’s.

[92]       
The plaintiff has not proven on balance of probabilities that his
tinnitus was caused by the Incident. In the result, the special damages he
claims are not recoverable.

[93]       
The plaintiff did not produce any receipt for the OBUS Forme back
support, and accordingly I am unable to award any special damages in that
regard.

SUMMARY OF DAMAGES

[94]       
In summary, I award the plaintiff the following:

Non-pecuniary
Damages:                      $35,000

Cost of
Future Care:       $4,000

TOTAL:                            $39,000

Costs

[95]       
In the usual course, the plaintiff would be entitled to his costs on
Scale B. If the parties are unable to agree on costs, they may set the
matter for hearing before me.

[96]       
Finally, I wish to thank counsel for the defendants who demonstrated
courtesy to the plaintiff at the hearing and comported themselves with the
utmost professionalism throughout.  The resulting efficiency in the trial
process benefitted all parties.

___________ “Dardi
J.”__________________
The Honourable Madam Justice Dardi