IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150723

Docket: M104849

Registry:
Vancouver

Between:

Joel Robert
Michael Ackley

Plaintiff

And

Marc Daniel
Audette

Defendant

Before:
The Honourable Mr. Justice Skolrood

Reasons for Judgment

Introduction

[1]            
Late in the evening on June 8, 2010, the defendant, Marc Audette, after
finishing work, drove to a Subway restaurant located in a shopping plaza in
Coquitlam, B.C. to buy a sandwich. As he got out of his car and walked towards
the entrance to the restaurant, he was accosted by the plaintiff, Joel Ackley,
who was hanging around outside with some friends.

[2]            
By his own admission, Mr. Ackley had been drinking and he made some
derogatory comments about Mr. Audette’s appearance. Words were exchanged between
the two men both inside and outside of the restaurant. The incident culminated
with Mr. Audette’s vehicle striking Mr. Ackley, knocking him down and
running over him (the “Incident”).

[3]            
Mr. Ackley suffered a fractured pelvis, significant abrasions and
related soft tissue injuries as a result of the Incident. He alleges that Mr. Audette
intentionally struck him with his vehicle or, alternatively, that Mr. Audette
was negligent. He claims non-pecuniary damages, past wage loss, loss of future
earning capacity, costs of future care and special damages. He also claims
punitive damages.

[4]            
Mr. Audette has denied liability. While acknowledging that his
vehicle struck Mr. Ackley, he denies that he acted intentionally or
recklessly. He says that it was Mr. Ackley who initiated the altercation
and who created the circumstances leading to Mr. Ackley’s injuries.
Mr. Audette submits further that the injuries sustained by Mr. Ackley
have largely resolved.

Summary of the Evidence

The Plaintiff

[5]            
Mr. Ackley is currently 24 years old. He was 19 at the time of the
Incident.

[6]            
He was born in Ontario and lived there until he moved with his family to
Vancouver when he was 16 and entering grade 10. Mr. Ackley described an
active youth in which he played numerous sports, including rep level hockey.

[7]            
According to Mr. Ackley, he found the move to Vancouver difficult
as he had trouble settling in and making friends. He experienced anxiety and
panic attacks for which he received treatment in the form of counselling and
medication.

[8]            
He attended Charles Best School in grade 10 and then CABE Secondary, an
alternative school for another year. Thereafter he attended “A Chance to
Choose,” a 15 week program designed to provide young people with employment
skills and experience. He did not complete high school.

[9]            
Mr. Ackley started working when he was 18. He started part time
with DNA Electric Ltd. (“DNA”), a commercial electric company for which his
father works as a foreman. He also worked as a part time delivery man for
Lordco, an automobile parts company.

[10]        
Mr. Ackley worked at DNA on a part time basis in 2007 and 2008. It
is apparent from employment records submitted into evidence that he only had
one shift at DNA in 2009 and then did not work there again until September of
2010, after the Incident. He was not employed at the time of the Incident.
Mr. Ackley did not provide a clear explanation as to why he was not
working at that time.

[11]        
Mr. Ackley’s mother, father and younger brother also testified. His
mother, Heather Ackley, described her son as a very active teenager who
participated in many sports and who enjoyed socializing with his friends.

[12]        
She said that when the family moved to B.C. in 2006, Mr. Ackley
found the transition difficult. She said that it took him approximately six
months to settle in. She confirmed that Mr. Ackley experienced anxiety
following the move and that they arranged anxiety-related treatment with Mr. Dr. James.

[13]        
Mrs. Ackley agreed that prior to the Incident, Mr. Ackley, in
her words, “drank and experimented with alcohol”.

[14]        
Jordan Ackley is Mr. Ackley’s younger brother. He is currently 19
years old and employed as an apprentice electrician with DNA.

[15]        
Jordan Ackley testified that Mr. Ackley was very active and
outgoing as a teenager. They both played a lot of sports and he said that Mr. Ackley
was always very fit. He described his brother as the sort of person who “always
put a smile on everyone’s face”.

[16]        
Jeff Ackley is Mr. Ackley’s father. He confirmed much of what Mrs. Ackley
and Jordan Ackley said about Mr. Ackley’s active lifestyle before the Incident.

[17]        
Jeff Ackley is a foreman employed by DNA. He testified about the physical
requirements of being a commercial electrician.

The Defendant

[18]        
Mr. Audette is currently 25 years old. He was 20 at the time of the
Incident.

[19]        
Mr. Audette has lived in Coquitlam, B.C. for most of his life. He
currently lives there with his parents. He graduated high school in 2007.

[20]        
Following high school, he did one year of engineering at Simon Fraser
University. He then took a year off before returning to school at Douglas
College in the teacher training program. He is in his fourth year of that
program and his current intention is to become a physical education teacher.

[21]        
Mr. Audette also works for the City of Coquitlam as a life guard
and swim teacher, which he has done for about 10 years.

The Incident

[22]        
Mr. Ackley testified that on June 8, 2010, he met some friends at a
park in Coquitlam and had some beers. While he was uncertain about how much he
had to drink, he agreed that during his examination for discovery he said that
he had eight beers and two shots during the evening.

[23]        
At about 7:30 or 8:00 pm, the group left the park to meet up with some
other friends in front of a grocery store located in the same shopping plaza as
the Subway restaurant. The whole group then walked across the plaza to the Subway
where the Incident occurred.

[24]        
Mr. Ackley agreed in cross-examination that he was somewhat
intoxicated, although he said that he was “coming down” as he had stopped
drinking and had gotten something to eat at the Subway.

[25]        
According to Mr. Ackley, Mr. Audette drove up in his car and
as he was walking towards the Subway, Mr. Ackley commented on the fact that
Mr. Audette had dreadlocks. Mr. Ackley said he called Mr. Audette
a “wannabe Ziggy Marley”. He said he was showing off for his friends and trying
to be funny.

[26]        
According to Mr. Ackley, Mr. Audette mumbled something in
response that he did not hear. Mr. Ackley then followed Mr. Audette
into the restaurant because he wanted to know what Mr. Audette had said.
Mr. Ackley said Mr. Audette then told him to get away or he would get
hurt. Further words were exchanged and then Mr. Ackley left the restaurant.
As he was leaving, he told Mr. Audette that he should leave through the
back door rather than come out the front where Mr. Ackley and his friends
were. Mr. Ackley denies that he threatened Mr. Audette or that he was
looking for a fight.

[27]        
Mr. Audette then exited the restaurant through the same door as Mr. Ackley.
Mr. Ackley said Mr. Audette was talking at him and called him a
“bitch”. He said that Mr. Audette walked back to his car, arriving at the
passenger side and then walking around the back to get to the driver side door.
Mr. Ackley met him at the driver side door just as Mr. Audette got in.
Mr. Ackley said he initially grabbed the door to stop Mr. Audette
from closing it. However, he saw Mr. Audette reach down to the passenger
side and was concerned he was going to pick something up so Mr. Ackley
slammed the car door shut, banged on the hood and walked away.

[28]        
He said that as he did, he heard a screech and his friends yelled at him
to turn around. As he did, he saw the lights of Mr. Audette’s car and he
was struck. He said he blacked out and when he came to he was lying under the
car which then ran over him as it moved to leave.

[29]        
Just in front of the spot where Mr. Audette’s car was parked and
where Mr. Ackley was struck is a slightly raised concrete plant bed
containing some shrubbery. According to Mr. Ackley, when he was struck by
the car, it carried him across the planter and he came to rest on the other
side.

[30]        
In cross-examination, Mr. Ackley was taken to his evidence given on
examination for discovery in which he described the Incident differently. There,
he said that he was waiting in line at the Subway when Mr. Audette came
into the restaurant and that Mr. Audette was behind him in line. Mr. Ackley
said he does not remember giving those answers but says that the version of
events he gave at trial is the proper one.

[31]        
Mr. Audette also testified about the Incident. He said that on June
8, 2010 he worked until about 10:15 pm. When his shift ended, he was hungry so
he drove to the Subway restaurant which he knew would be open. He estimates that
he arrived at about 10:25 pm.

[32]        
Mr. Audette said that when he got out of his car and walked toward
the door of the restaurant, there were a number of people loitering in front of
the restaurant. Mr. Audette did not know any of the people. Mr. Ackley
was one of the people in the group.

[33]        
As Mr. Audette approached the restaurant, Mr. Ackley started
to say rude things to him about his hair. Mr. Audette said that he had
recently put his hair into dreadlocks that were still quite short and sticking
out.

[34]        
Mr. Audette said that he told the people with Mr. Ackley that
they should take care of their friend and it was apparent to Mr. Audette
that Mr. Ackley was drunk. It was Mr. Audette’s impression that Mr. Ackley
was trying to pick a fight with him.

[35]        
Mr. Audette entered the Subway and ordered a sandwich. He said that
Mr. Ackley followed him into the restaurant and continued to say rude
things to him. He said that Mr. Ackley asked him why he had his hair like
that and if he knew that his girlfriend was sleeping with a short-haired guy.

[36]        
According to Mr. Audette, he swore at Mr. Ackley and told him
to leave him alone.

[37]        
Mr. Ackley was the first to leave the restaurant. Mr. Audette
said that as Mr. Ackley left, he told Mr. Audette that he should
leave through the rear door. Mr. Audette interpreted this as a threat. He
again thought that Mr. Ackley wanted to fight him.

[38]        
Mr. Audette paid for his sandwich and then left the restaurant
through the same door that he had entered. When asked why he did not leave
through the other door, he said that he did not want to give Mr. Ackley
the satisfaction of knowing that he was scared.

[39]        
Mr. Audette was also asked why he did not fight Mr. Ackley if
that is what Mr. Ackley wanted. Mr. Audette said that he is not much
of a fighter and that he was also worried that Mr. Ackley had friends
there who might join in. As he said, “no good would have come of it”.

[40]        
When he left the restaurant, Mr. Audette walked to his car. He said
that Mr. Ackley followed him and was pushing him in the back and still
yelling and swearing at him. Mr. Ackley had also removed his shirt which
reinforced in Mr. Audette’s mind that Mr. Ackley wanted to fight.

[41]        
When Mr. Audette got to his car, he said that Mr. Ackley first
tried to prevent him from opening the door. Mr. Audette was however able
to open the door and get in. As he did, he said that Mr. Ackley told him
he was going to “fuck up your car”.

[42]        
Mr. Audette then pulled the door shut. He said that Mr. Ackley
“went berserk” and was hitting his car on the driver’s side window and on the
front hood. Mr. Audette said that he was concerned that Mr. Ackley
was going to break the window. Mr. Ackley was wearing a ring and
photographs entered into evidence show visible marks from the ring on the
window of Mr. Audette’s car.

[43]        
Mr. Audette said that throughout the time from when he was
confronted by Mr. Ackley in front of the restaurant, followed into the
restaurant and then followed to his car, he was terrified. He said he felt
panic, anxiety and fear and he could not understand why this was happening. He
denied however that he was angry at Mr. Ackley.

[44]        
Mr. Audette testified that once he shut the car door, he put the
car into reverse and backed up about ten feet. He then turned the steering
wheel to the left, intending to turn through the stall where he had been parked
and exit the parking lot. He said that while he was backing up, Mr. Ackley
was still beside his car on the driver’s side. He said that as he accelerated
forward, Mr. Ackley turned to run back towards where his friends were in
front of the restaurant. In doing so, he moved directly in front of Mr. Audette’s
car. Mr. Audette said that he swerved to the right to try to miss Mr. Ackley
which is what caused him to go through the planter. Mr. Audette said that
he gave his car more gas than he intended and as such he accelerated quite
quickly.

[45]        
Mr. Audette said that he could not avoid Mr. Ackley who was
initially pushed by the front of the car then he fell under it as the car went
over the bushes in the planter.

[46]        
Mr. Audette said that he did not stop the car, but rather drove
away. He said he was panicked by what had happened and did not know if he had
killed Mr. Ackley.

[47]        
As he was driving away, Mr. Audette called his friend Brian Redwood
and told him what had happened. Mr. Redwood told him he needed to return
to the scene and give his version of what had happened. He then drove to the
house of another friend. In relatively short order, Mr. Audette met up with
Mr. Redwood and they returned to the scene, arriving back at about 11:00
pm. Mr. Audette was then interviewed by the police back at the RCMP
station.

[48]        
Mr. Audette denied that he intentionally ran over Mr. Ackley. He
said that his intention when he arrived at the Subway restaurant was simply to
buy a sandwich and go home.

[49]        
It was put to Mr. Audette in cross-examination that his evidence at
trial differed in some respects from what he told the RCMP on the night of the Incident.
At several points during the interview, he said that he did not know exactly
what had happened, for example he did not know how Mr. Ackley ended up in
front of his car or why he drove through the bushes.

[50]        
Mr. Audette acknowledged that his evidence given at trial was
clearer and more detailed than what he told the RCMP but said that during the
interview he was very frazzled and still quite upset. He denied the suggestion
put to him that the version given to the police lacked details because he had
not yet invented his story.

[51]        
He also acknowledged that he told the police that he is a pretty big
guy, that he takes kick-boxing and that he could have “beat the crap” out of Mr. Ackley
in the restaurant. Nonetheless, he said that he was intimidated and scared by Mr. Ackley’s
actions. He maintained however that he never lost his temper.

[52]        
Two other witnesses who were present at the time of the Incident also
testified.

[53]        
Nicole Huddleston was one of the people that met Mr. Ackley in Glenfield
Park in Coquitlam. She said that she was not drinking but agreed that Mr. Ackley
was and that he was the most intoxicated one in the group.

[54]        
She said that the group left the park and went to the Subway in
Coquitlam, arriving around 9:00-9:30 pm. While they were hanging around in
front of the Subway, Mr. Audette drove up in his car. Ms. Huddleston
said that as he went to enter the restaurant, Mr. Ackley directed a
comment towards him, calling him Ziggy Marley. She said that Mr. Ackley
was the only person in their group who said anything to Mr. Audette and
that she does not recall Mr. Audette saying anything in response.

[55]        
Mr. Ackley followed Mr. Audette into the Subway. A young man
named Jeremy, who was in their group, also went into the restaurant. Ms. Huddleston
stayed outside.

[56]        
She said that Mr. Ackley was inside the restaurant for about five
minutes and was the first one to come back outside. When Mr. Audette came
outside, Mr. Ackley followed him to his car. Ms. Huddleston said she
followed Mr. Ackley. When asked why she did so, she said that she went to
get Mr. Ackley so there would be no issue. She denied that Mr. Ackley
was trying to fight Mr. Audette, but agreed that she was concerned that a
fight might develop.

[57]        
Ms. Huddleston said she saw Mr. Audette get into his car then
saw Mr. Ackley strike the driver’s side door. Mr. Ackley also struck
the hood of Mr. Audette’s car. When this was occurring, Ms. Huddleston
was approximately three to four feet away, standing adjacent to the planter box.

[58]        
According to Ms. Huddleston, Mr. Audette backed his car up
briefly, then moved it forward and struck Mr. Ackley. Mr. Ackley had
turned away and was looking back towards the Subway. She said that the car
carried Mr. Ackley on the hood through the planter box and that he then
fell under the car on the other side.

[59]        
Marissa Boyer also testified. She is a former girlfriend of Mr. Ackley although
they had broken up prior to the date of the Incident.

[60]        
Ms. Boyer testified that she was at Glenfield Park on June 8, 2010
with a group of people, including Mr. Ackley. Many in the group were
drinking. Ms. Boyer said that she had two drinks of vodka mixed with pop. She
agreed that Mr. Ackley was drinking and that he was intoxicated.

[61]        
At some point the group left the park and went to the Subway restaurant.
While they were hanging around out front, Mr. Audette drove up in his car.
As he got out and went to enter the restaurant, Mr. Ackley said something
to him about his hair and called him Ziggy Marley.

[62]        
Ms. Boyer said that Mr. Audette was angry, told Mr. Ackley
to shut up and called him a name. She said that Mr. Ackley followed Mr. Audette
into the restaurant and that she went in too. More words were exchanged and
then Mr. Ackley and Ms. Boyer left after about two minutes. Mr. Audette
came out after about five minutes.

[63]        
According to Ms. Boyer, when Mr. Audette came out, he spoke to
Mr. Ackley and told him to follow him to his car. She said that Mr. Ackley
and Mr. Audette then walked together towards Mr. Audette’s car and
that Mr. Ackley was laughing. While they were at the car, Ms. Boyer
said that she did not see Mr. Ackley hit the car door but she agreed that
he did strike the hood.

[64]        
She said that Mr. Audette then got into his car, shut the door,
rolled up his window, put the car in drive and accelerated forward. She said
that Mr. Ackley had walked away and was on the other side of the planter
with his back turned to the car. She said that the car came through the planter
and struck Mr. Ackley. She said it looked like he was initially bent
backwards by the impact and then was sucked under the car.

[65]        
Brian Redwood also testified. Mr. Redwood was not present when the Incident
occurred but he confirmed that Mr. Audette telephoned him shortly
afterwards and that he returned with Mr. Audette to the scene. He said
that when he met up with Mr. Audette, he appeared distraught and shaken
up.

The Plaintiff’s Injuries and Post-Incident Activities

[66]        
The most serious injuries suffered by Mr. Ackley were fractures to
his pelvis. He also suffered significant abrasions and bruising to his pelvic
and hip areas.

[67]        
Mr. Ackley remained in the hospital for four days. When he was
released, he was confined to a wheelchair and was initially bedridden. At the
family home, his bedroom was located upstairs in a loft and Mr. Ackley was
unable to climb the stairs so he was carried up and down by his father and
brother. For the first while, he also needed help getting dressed and going to
the bathroom.

[68]        
Mrs. Ackley testified that for the first week after Mr. Ackley
returned home, she, her husband and her mother had to regularly change the
bandages on Mr. Ackley’s abrasions. She described it as a very traumatic
process for all of them. After the first week, they got some in-house nursing
assistance.

[69]        
Mr. Ackley said that he used the wheelchair virtually all of the
time for the first month after the Incident. Then, as he got more mobile, he
would use a crutch or cane for support.

[70]        
Mr. Ackley attended physiotherapy for six sessions commencing about
three months after the Incident.

[71]        
Mr. Ackley said that he tried to return to playing hockey in
September of 2010. He signed up for the same recreational men’s team that he
had played with in the past. He said that he played until the pain stopped him.
The evidence in fact established that Mr. Ackley also registered to play
hockey in 2011 and 2012, which was confirmed by the team manager. Statistics
maintained by the league and posted online indicate the he played 62 games in
the 2010-2012 period. Mr. Ackley tried to downplay how much he played,
suggesting that other players often wore his jersey.

[72]        
Mr. Ackley returned to work at DNA in September 2010. He said that
he did very light duties and often had assistance. His father was a foreman at
DNA and arranged for the light duties. Mr. Ackley said that he could perform
light duties like sweeping, but that still caused him pain. He had difficulty
bending over or pulling. He said he would often leave work early due to the
pain.

[73]        
Mr. Ackley worked at DNA from September 2010 to May 2011 when he
said he stopped due to the pain and to a work slowdown. According to his
employment records, he worked a total of 436.90 hours from September to December
2010 and a further 535.90 hours from January to May 2011. He then resumed work
at DNA in February 2012 and continued through until July 2014. He worked
1505.40 hours in 2012, 1440.80 hours in 2013 and 610.60 hours in 2014.

[74]        
Mr. Ackley said that he stopped work in July 2014 because he could
no longer do the work due to his pain.

[75]        
In January of 2014 he was accepted in to the BCIT electrical
apprenticeship program and he expected to attend classes at BCIT from October
to December 2014 for the theoretical component of the apprenticeship. However
he did not attend the classes as he was not working and he said that he could
not afford it. He has since been accepted again for classes beginning August of
2015.

[76]        
Mr. Ackley said that he wants to take the classes to complete what
he started in terms of his apprenticeship, even though he does not believe that
physically he is able to work as an electrician.

[77]        
Mr. Ackley says that he continues to experience pain in his hips
and back, as well as related emotional issues. He testified that the injuries
sustained in the Incident changed his life dramatically. He used to be very
active and play a lot of sports, but is no longer able to do so. He says that
he cannot do any heavy lifting and he worries about his future and his ability
to obtain employment. He says his confidence has been diminished.

The Medical Evidence

Dr. Michael Gilbart

[78]        
Dr. Michael Gilbart is an orthopaedic surgeon who examined Mr. Ackley
at the request of his counsel. Dr. Gilbart has subspecialty training in
disorders of the shoulders, hips and knees and is a leading practitioner in the
field of hip arthroscopic surgery.

[79]        
Dr. Gilbart examined Mr. Ackley on September 8, 2011 and the
results of his examination are set out in a report of the same date.

[80]        
On the date of his examination, Dr. Gilbart diagnosed Mr. Ackley
as having the following conditions:

a)    Musculoligamentous
lumbar strain;

b)    Lateral
compression pelvis fracture with bilateral superior and inferior pubic ramus
fractures, anterior cortex sacral fracture (now healed);

c)     Residual
chest, pelvis and bilateral soft tissue pain; and

d)    Bilateral
CAM-type femoral acetabular impingement.

[81]        
With respect to the pelvic fractures, Dr. Gilbart described Mr. Ackley
as having suffered a “significant crush injury”. He noted that while the
fractures have healed, Mr. Ackley continues to experience pain in his hip
and groin, particularly on the left side.

[82]        
The CAM-type femoral acetabular impingement identified by Dr. Gilbart
refers to the presence of a bony prominence or bump in the hip joint, something
that he says is relatively common in the general population and was likely
present prior to the Incident. Such a condition is often asymptomatic, but it
can also be associated with tears in the labrum, which is the cartilage rim
attaching to the hip socket, which Dr. Gilbart said can be caused by
trauma.

[83]        
Dr. Gilbart opined that because Mr. Ackley did not have any
pelvis or hip pain prior to the Incident, it is likely that his ongoing pain
was caused by the Incident.

[84]        
It is Dr. Gilbart’s view that Mr. Ackley would not likely
benefit from surgical intervention, specifically a hip arthroscopy, even if it
were established that he had a labral tear. According to Dr. Gilbart, this
is because Mr. Ackley also reports pain in his pelvis and low back thus
hip surgery is unlikely to relieve all of his symptoms. That said, Dr. Gilbart
says that Mr. Ackley would benefit from an MRI arthrogram of the left hip,
which would include an injection of a local anesthetic which would assist in
determining how much of Mr. Ackley’s pain is emanating from the hip and
how much from his pelvis.

[85]        
Dr. Gilbart described Mr. Ackley’s prognosis as guarded.

Dr. Ralph Belle

[86]        
Dr. Ralph Belle is an orthopaedic surgeon who also examined Mr. Ackley
at the request of his counsel. That examination took place on June 20, 2014 and
the results are set out in a report of the same date.

[87]        
In general, Dr. Belle reports similar findings to Dr. Gilbart.
The central point of departure between the two doctors is that Dr. Belle
is of the opinion that Mr. Ackley’s main complaints of pain and stiffness
are emanating from his hip joints and that surgical intervention in the form of
a hip arthroscopy would likely have positive results.

[88]        
Similar to Dr. Gilbart, Dr. Belle recommends further
investigation in the form of an MRI and the injection of an anesthetic. Again,
the purpose of the anesthetic would be to temporarily eliminate the hip pain in
order to determine how much if any pain was emanating from the pelvis and/or
low back.

[89]        
Dr. Belle also comments on Mr. Ackley’s ongoing mechanical low
back pain and suggests that he would benefit from a formal aggressive
strengthening program.

Dr. Richard Kendall

[90]        
Dr. Richard Kendall is an orthopaedic surgeon who examined Mr. Ackley
on January 15, 2014 at the request of the defendant. The results of his
examination are set out in a report of the same date.

[91]        
Dr. Kendall’s description of Mr. Ackley’s injuries is similar
to that of Dr. Gilbart and Dr. Belle. He noted that Mr. Ackley’s
pelvic fractures have healed, but that he continues to experience significant
stiffness of the hips. However, in Dr. Kendall’s view, there is nothing to
suggest that Mr. Ackley sustained an injury to the hip joints and he is
unlikely to experience arthritic changes within the hip joints in the future.
Dr. Kendall described Mr. Ackley’s ongoing residual pain as being of
uncertain origin. Unlike, Dr. Gilbart and Dr. Belle, Dr. Kendall
suggests that it is unlikely that further investigation will shed any light on
the sources of his pain.

[92]        
Dr. Kendall also suggests that Mr. Ackley is deconditioned and
that a more aggressive program of exercise and rehabilitation would likely
improve his symptoms.

[93]        
Dr. Kendall authored a second report dated November 27, 2014 based
on a review of additional medical records. In this report, Dr. Kendall
notes Mr. Ackley reported a deterioration of his condition for unexplained
reasons. Having reviewed Dr. Belle’s report, Dr. Kendall changed his
view and agrees with Dr. Belle’s recommendation about further investigation of Mr. Ackley’s
hip using the injection of an anesthetic.

[94]        
Dr. Kendall subsequently provided a third report dated March 6,
2015 to comment on Dr. Gilbart’s report. In this report, Dr. Kendall
notes that none of the investigations recommended by Dr. Gilbart have been
pursued but he agrees with Dr. Gilbart there is little evidence that the
hip pathology is the cause of Mr. Ackley’s pain. According to Dr. Kendall,
Mr. Ackley’s widespread pain is likely soft tissue in nature.

Dr. Ramak Shadmani

[95]        
Dr. Ramak Shadmani is Mr. Ackley’s family doctor. She saw him
for the first time after the Incident on June 16, 2010. She noted that he was
unable to walk due to pain and instability in his pelvis. He also presented
with bruising and abrasions over the left side of his scalp, both arms, his
pelvis, hips and upper thighs.

[96]        
Much of Dr. Shadmani’s report consists of rather cryptic entries
relating to various office visits made by Mr. Ackley which are of minimal
assistance. She does provide a diagnosis, as of August 10, 2014, the date of
her report, that Mr. Ackley suffered soft tissue injuries to his chest,
upper arms, lower back and hips as well as several fractures of his pelvis bone.
She indicated that he was still suffering from chronic low back and hip pain. She
expressed the view that the prognosis for a full recovery is poor.

Dr. Anthony Oshun

[97]        
Dr. Anthony Oshun is a psychiatrist who practices at Eagle Ridge
Hospital. He saw Mr. Ackley in the hospital on May 7, 2014. Mr. Ackley
had been brought to the hospital the previous day by his parents who were
concerned that he was hallucinating and being aggressive. Dr. Oshun said
that Mr. Ackley told him during his interview that he had lost his
driver’s licence a few days previously and then had lost his job the following
day.

Dr. Owen James

[98]        
Dr. Owen James is a clinical psychologist. Dr. James confirmed
that he saw Mr. Ackley for a number of sessions beginning in January of
2009 to deal with anxiety issues. Dr. James has not seen Mr. Ackley
since May of 2010.

Additional Expert Evidence

Shannon Smith

[99]        
Shannon Smith is an occupational therapist who conducted two work
capacity evaluations of Mr. Ackley at the request of his counsel, one on
June 26, 2013 and a subsequent one on September 20, 2014. Her findings are set
out in reports dated July 31, 2013 and September 30, 2014.

[100]    
Ms. Smith’s opinion is based on an interview with Mr. Ackley
as well as the results of various functional capacity tests that he undertook
on June 26, 2013. She then considered the occupational requirements of an
electrician as set out in the National Occupational Classification (NOC) and
said as follows in her first report:

The results of this assessment show Mr. Ackley is not
ideally suited to the full physical demands of this work, however he is
currently incorporating a number of work style modifications and experiencing
some degree of symptom aggravation in order to remain in the work place. Specifically,
Mr. Ackley does not meet the demands for kneeling or crouching and he
compensates for this limitation by stooping to perform low level work and
taking breaks from sustained stooping as necessary.

It is my impression from Mr. Ackley
that he is afforded some level of informal accommodation on behalf of the
employer (I note his father is the Major Foreman and Mr. Ackley has worked
for the company since the age of 16). As indicated above, this includes taking
breaks as needed and leaving early during periods of symptom aggravation. His
ability to continue to perform this work on a full time basis is dependent on
him being able to effectively manage and tolerate his symptoms on an ongoing
basis and being able to continue to implement work style
modifications/adaptations that reduce his exposure to aggravating postures.

[101]     Ms. Smith
went on to note that Mr. Ackley has apparently not had any guidance from a
rehabilitation professional with respect to an appropriate exercise regime and
she recommended consultation with a physiotherapist to determine if
improvements could be achieved through an active exercise program.

[102]     Ms. Smith
assessed Mr. Ackley again on September 24, 2014. On the basis of that
assessment, she was of the opinion, as stated in her second report, that “Mr. Ackley’s
ability to meet the physical demands of [his] work has become further
compromised. In her view, as of the date of that assessment, Mr. Ackley
does not meet the physical demands of work as an apprentice electrician. According
to Ms. Smith, Mr. Ackley would benefit from participation in an
active exercise program supervised by a kinesiologist.

[103]     In her
evidence at trial, Ms. Smith noted that Mr. Ackley had very poor core
strength and flexibility and that these could be improved through active
exercise. She cautioned however that it was difficult to predict how much
improvement in Mr. Ackley’s condition would result from such a program.

Derek Nordin

[104]     Derek
Nordin is a vocational evaluator who prepared a vocational assessment report
dated August 18, 2014. The assessment was based on an interview with Mr. Ackley
as well as the results of various tests administered by Mr. Nordin. Both
the interview and the testing took place on August 21, 2014.

[105]     In his
report, Mr. Nordin referred to Ms. Smith’s opinion that Mr. Ackley
is not ideally suited to the full physical demands of the work of an apprentice
electrician. He noted as well, however, a concern that even without the
Incident and Mr. Ackley’s resulting injuries, it was questionable whether Mr. Ackley
would have been able to function as an electrician and to complete the
theoretical portion of his apprenticeship due to very weak math skills.

[106]     Mr. Nordin
provided a comparison of estimated annual earnings for electricians as well as
for other similar trades which according to Mr. Nordin would not require
the same strong academic abilities as an electrician. He also provided
estimates of earnings for truck drivers and delivery and courier drivers based,
as I understand it, on Mr. Ackley’s statement to him that he was hoping to
obtain employment as a scrap metal truck driver through a friend. I note that Mr. Ackley
did not testify in court about any such position.

Robert Carson

[107]     Robert
Carson is an economist. He prepared two reports at the request of counsel for Mr. Ackley.
The first, dated November 10, 2014, provides projections of past and future
earnings, and the second, dated February 27, 2015, provides a methodology for
calculating projected future care costs. I will return to Mr. Carson’s
evidence when addressing the relevant heads of damage.

Wayne Jeffrey

[108]     Wayne
Jeffrey is a forensic toxicologist. Based on a blood sample obtained from Mr. Ackley
at Royal Columbian Hospital at 23:09 on June 8, 2010, Mr. Jeffries
estimated that Mr. Ackley’s blood alcohol level would have been between
185 to 194 milligrams of alcohol in 100 millilitres of blood at the time of the
Incident. He testified about typical effects of such a concentration including
slurred speech, stumbling gait, an inability to choose between alternatives
presented to him, loss of judgment, loss of reaction time, loss of fine motor
control and loss of coordination. He also opined that a person with that
alcohol level might have a distorted or compromised memory of events when in a
sober state.

Analysis

Credibility

[109]     As can be
seen from the above, while the essential facts surrounding what occurred on
June 8, 2010 are largely uncontradicted, Mr. Ackley and Mr. Audette
do differ somewhat in their versions of the exact details of the Incident.

[110]     Madam
Justice Dillon provided very helpful guidance for assessing credibility when
faced with conflicting stories in Bradshaw v. Stenner, 2010 BCSC 1398,
aff’d 2012 BCCA 296:

[186] Credibility involves an assessment of the
trustworthiness of a witness’ testimony based upon the veracity or sincerity of
a witness and the accuracy of the evidence that the witness provides (Raymond
v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The
art of assessment involves examination of various factors such as the ability
and opportunity to observe events, the firmness of his memory, the ability to
resist the influence of interest to modify his recollection, whether the
witness’ evidence harmonizes with independent evidence that has been accepted,
whether the witness changes his testimony during direct and cross-examination,
whether the witness’ testimony seems unreasonable, impossible, or unlikely,
whether a witness has a motive to lie, and the demeanour of a witness generally
(Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont.H.C.); Farnya v. Chorny,
[1952] 2 D.L.R. 152 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), [1997] 3
S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence
depends on whether the evidence is consistent with the probabilities affecting
the case as a whole and shown to be in existence at the time (Farnya at para. 356).

[187] It has been suggested that
a methodology to adopt is to first consider the testimony of a witness on a
‘stand alone’ basis, followed by an analysis of whether the witness’ story is
inherently believable. Then, if the witness testimony has survived relatively
intact, the testimony should be evaluated based upon the consistency with other
witnesses and with documentary evidence. The testimony of non-party,
disinterested witnesses may provide a reliable yardstick for comparison. Finally,
the court should determine which version of events is the most consistent with
the “preponderance of probabilities which a practical and informed person would
readily recognize as reasonable in that place and in those conditions” (Overseas
Investments (1986) Ltd. v. Cornwall Developments Ltd. (1993), 12 Alta. L.R.
(3d) 298 at para. 13 (Alta. Q.B.)). I have found this approach useful.

[111]     Mr. Ackley’s
presentation at trial was different from the image of him on the night of the
Incident created by the evidence. At trial, Mr. Ackley was polite,
measured and appeared to be making best efforts to accurately and truthfully
give his evidence.

[112]     That said,
there are aspects of Mr. Ackley’s evidence that simply are not credible. For
example, he repeatedly denied that he was trying to incite a fight with Mr. Audette
or that he was bullying or intimidating him. He said that he followed Mr. Audette
into the Subway simply to hear what Mr. Audette had said to him. Similarly,
he said that when he and Mr. Audette arrived back at Mr. Audette’s car, he
initially stopped Mr. Audette from closing the door so that he could
continue to talk to him. He characterized his striking the window and hood of Mr. Audette’s
car as more playful than intimidating.

[113]     This
evidence is not believable and reflects a tendency on Mr. Ackley’s part to
downplay his actions on the night of the Incident. It is clear on all of the
evidence that Mr. Ackley was the instigator of the Incident and the
aggressor throughout. For example, Ms. Huddleston said she followed Mr. Ackley
to the car because she was worried that a fight would occur. It is also clear
that Mr. Ackley removed his shirt while waiting for Mr. Audette to
emerge from the Subway. That is behaviour more consistent with someone looking
to fight than simply carry on a conversation.

[114]     Mr. Audette
also presented as a polite and thoughtful young man who gave his evidence in a
straight forward manner. However, there were aspects of his evidence that were
also problematic, most notably, his denial that he was ever angry at Mr. Ackley.
I accept that Mr. Audette was intimidated and likely frightened by Mr. Ackley
but it is difficult to accept that there was not an element of anger present as
well.

[115]     That said,
where Mr. Ackley and Mr. Audette differ in their versions of what
occurred, I prefer the evidence of Mr. Audette. His description of the
Incident, and in particular of Mr. Ackley’s conduct, has a greater air of
reality about it and is more consistent with the preponderance of probabilities
than that given by Mr. Ackley.

Liability

[116]     As noted
above, there is no issue that Mr. Audette’s vehicle struck and injured Mr. Ackley.

[117]     Mr. Ackley
alleges that Mr. Audette acted intentionally. He submits that Mr. Audette
was clearly angry and that it was this anger that caused him to accelerate his
vehicle directly at Mr. Ackley. He says the fact that Mr. Audette
left the scene and contemplated fleeing to Mexico is consistent with Mr. Audette
having acted intentionally. If it was truly an accident, Mr. Ackley
submits that Mr. Audette would have called the police himself and would
have remained at the scene.

[118]     I do not
accept that Mr. Audette intentionally ran over Mr. Ackley. While I
have rejected Mr. Audette’s evidence that he was not angry, the fact that
he was angry with Mr. Ackley does not lead to a finding that he intentionally
ran him over. I accept Mr. Audette’s evidence that his intention was to
get away from Mr. Ackley and that, in order to do so, he backed up his car
and then put it in to drive in order to manoeuver around Mr. Ackley.

[119]     Ms. Huddleston’s
evidence supports this finding in that she testified that Mr. Audette
backed up before moving forward and striking Mr. Ackley. Ms. Boyer
did not testify that Mr. Audette backed up first but her evidence is
inconsistent with the balance of the evidence on a number of points and is of
minimal assistance.

[120]     While he
may not have acted intentionally in striking Mr. Ackley, I nonetheless
find that Mr. Audette was negligent in the operation of his vehicle. He
knew that Mr. Ackley was in the vicinity of the vehicle and he conceded that
moving back into the parking space that he had just vacated was an
unpredictable move. He also acknowledged stepping on the accelerator with more
force than he intended.

[121]     In the
circumstances, Mr. Audette was negligent and his negligence caused Mr. Ackley’s
injuries.

[122]     Mr. Audette
however raises a number of defences that he submits absolve him of liability,
even in the face of a finding of negligence. I will address these defences in
turn.

Volenti Non fit Injuria

[123]     Mr. Audette
seeks to invoke the doctrine of volenti non fit injuria and submits that
Mr. Ackley, through his conduct, voluntarily accepted the risk that he
would be injured. Mr. Audette in fact goes further and submits that Mr. Ackely
created the risk by engaging in threatening behaviour, impeding Mr. Audette
from entering his vehicle, pounding on the vehicle and then crossing in front
of the vehicle when it moved forward.

[124]     Mr. Ackley
cites Kreutziger v. Kreutziger (1991), 58 B.C.L.R. (2d) 184 (S.C.) and Brietzke
v. Lazariuk, 1988 CarswellBC 3499 (S.C.) as examples of where the courts
have found the actions of pedestrians in relation to a vehicle to fall within
the doctrine.

[125]     The
doctrine of volenti non fit injuria, otherwise known as voluntary
assumption of risk, is premised on the “moral supposition that no wrong is done
to one who consents” and, because it is a complete bar to recovery, courts have
found it “only applies in situations where the plaintiff has assumed both the
physical and legal risk involved in the activity” (Crocker v. Sundance Northwest
Resorts Ltd., [1988] 1 S.C.R. 1186 at 1201-1202).

[126]    
To establish volenti, it must be “clear that the plaintiff,
knowing of the virtually certain risk of harm, in essence bargained away his
right to sue for injuries incurred as a result of any negligence on the
defendant’s part” (Dube v. Labar, [1986] 1 S.C.R. 649 at 658). The test
was further explained by the Court in Dube as follows (658-659):

The acceptance of risk may be express or may arise by
necessary implication from the conduct of the parties, but it will arise, in
cases such as the present, only where there can truly be said to be an
understanding on the part of both parties that the defendant assumed no
responsibility to take due care for the safety of the plaintiff, and that the
plaintiff did not expect him to.

…To permit the defence to
succeed on facts showing merely that the plaintiff knew of the risk and yet
chose to undergo it is inconsistent with the decisions of this Court, supra,
which require not merely knowledge, but express or necessarily implied
acceptance of the risk of harm without recourse to law by the plaintiff, along
with an inference that the defendant, for his part, took no responsibility for
the plaintiff’s safety.

[127]     Here, it
is clear that Mr. Ackley was the aggressor and, it can be said,
voluntarily engaged in a confrontation with Mr. Audette. However, the
evidence does not go so far as to support a finding, or even an inference, that
Mr. Ackley knowingly accepted the risk that Mr. Audette would run him
over with his car or that Mr. Ackley was waiving any recourse to the law
in the event of injury.

[128]     The volenti
doctrine does not assist Mr. Audette.

Ex Turpi Causa

[129]     Mr. Audette
also seeks to invoke the doctrine of ex turpi causa. He submits that Mr. Ackley
should not be permitted to benefit, by way of an award of damages, for his own
immoral or illegal conduct.

[130]    
In Hall v. Hebert, [1993] 2 S.C.R. 159, the Supreme Court
addressed the policy underpinnings of the ex turpi causa doctrine
in these terms (179-180):

I conclude that there is a need
in the law of tort for a principle which permits judges to deny recovery to a
plaintiff on the ground that to do so would undermine the integrity of the
justice system. The power is a limited one. Its use is justified where allowing
the plaintiff’s claim would introduce inconsistency into the fabric of the law,
either by permitting the plaintiff to profit from an illegal or wrongful act,
or to evade a penalty prescribed by criminal law. Its use is not justified
where the plaintiff’s claim is merely for compensation for personal injuries
sustained as a consequence of the negligence of the defendant.

[131]     As
reflected in this passage, McLachlin J. (as she then was), speaking for the majority,
drew a distinction between compensatory damages recoverable by a plaintiff for
personal injuries suffered as a consequence of tortious conduct, and a profit
or gain obtained from illegal conduct.

[132]     While I do
not read Hall as foreclosing entirely the possibility that ex turpi causa
can ever be invoked in a personal injury claim, it is clear that the doctrine
has limited application and is restricted to those cases in which the damages
claimed can clearly be characterized as profits for the plaintiff’s illegal
conduct.

[133]     This limitation
applies to the facts of this case. While I have found that Mr. Ackley was
the aggressor in the Incident, his claim for damages arises not as a direct
result of his own illegal or immoral conduct, but by reason of the negligence
of Mr. Audette. As such, the doctrine of ex turpi causa has
no application.

Agony of the Moment

[134]    
Mr. Audette cites a number of cases in which drivers faced with
emergency situations were found not liable when their evasive actions resulted
in an accident: Gill Estate v. Canadian Pacific Ltd., [1973] S.C.R. 654,
Robbins v. Webb, 2011 BCSC 1073, aff’d 2012 BCCA 233 and Brook v. Tod
Estate, 2012 BCSC 1947. The rationale for these decisions is the so-called
“agony of the collision”, as summarized in Carswell’s Manual of Motor
Vehicle Law, Volume III, 3rd edition at page 22:

…a driver acting in an emergency
created by another vehicle or by some extraneous fact cannot be expected to
exercise nice judgment and prompt decision, and mere errors of judgment in such
circumstances may often be excusable

[135]     In my
view, these cases are distinguishable. In the present case, while Mr. Audette
was no doubt frightened and intimidated by Mr. Ackley, by the time Mr. Audette
was in his car with the door closed, any imminent threat had subsided. Moreover,
while I accept his evidence that he was intending to leave the scene and escape
Mr. Ackley, the evidence did not establish that proceeding as he did was
the only course of action open to him. Mr. Audette did testify that the
exit from the parking lot was in the direction that he intended to drive, but
there was no evidence establishing that there was no other available route to
that exit. For example, there was no evidence that Mr. Audette was blocked
from backing up his vehicle further and thus avoiding the need to drive through
the parking stall and around Mr. Ackley in order to exit. Based on the
evidence, there was no emergency compelling him to act quickly or drive towards
that exit.

[136]     In the
circumstances, this is not a case in which Mr. Audette’s actions were the
result of an “agony of the moment” decision.

Contributory Negligence

[137]     Mr. Audette
submits that if none of the above defences operate to absolve him completely of
liability then, at a minimum, Mr. Ackley must be found contributorily
negligent.

[138]    
In Bradley v. Bath, 2010 BCCA 10 at para. 25, Mr. Justice
Tysoe adopted the description of contributory negligence set out in John G.
Fleming, The Law of Torts, 9^th ed. (Sydney: LBC Information
Services, 1998) at 302 as follows:

Contributory negligence is a plaintiff’s failure to meet the
standard of care to which he is required to conform for his own protection and
which is a legally contributing cause, together with the defendant’s default,
in bringing about his injury. The term “contributory negligence” is
unfortunately not altogether free from ambiguity. In the first place,
“negligence” is here used in a sense different from that which it bears in
relation to a defendant’s conduct. It does not necessarily connote conduct fraught
with undue risk to others, but rather failure on the part of the person
injured to take reasonable care of himself in his own interest. …
Secondly, the term “contributory” might misleadingly suggest that the
plaintiff’s negligence, concurring with the defendant’s, must have contributed
to the accident in the sense of being instrumental in bringing it about.
Actually, it means nothing more than his failure to avoid getting hurt…

[Emphasis in original; Footnotes
omitted.]

[139]    
Where it is shown that a plaintiff was contributorily negligent, then
the court must also consider the proper apportionment of liability as between
the parties. In this regard, s. 1(1) of the Negligence Act, R.S.B.C.
1996, c. 333, provides:

If by the fault of 2 or more
persons damage or loss is caused to one or more of them, the liability to make
good the damage or loss is in proportion to the degree to which each person was
at fault.

[140]    
In Karran v. Anderson, 2009 BCSC 1105, Mr. Justice Cohen
described the approach to apportionment in these terms:

[106]
The Negligence Act, R.S.B.C. 1996, c. 333, s. 1(1),
requires that apportionment of liability must be made on the basis of “the
degree to which each person was at fault”. As stated in Cempel v. Harrison
Hot Springs, [1998] 6 W.W.R. 233, 43 B.C.L.R. (3d) 219 at para. 19
(C.A.), the assessment to be made is of degrees of fault, not degrees of
causation, with “fault” meaning blameworthiness. Courts must gauge the amount
by which each proximate and effective causative agent fell short of the standard
of care that was required of that person in all of the circumstances.

[107]
In assessing the respective fault and blameworthiness of the parties as
contemplated in Cempel, courts are to evaluate the extent or degree to
which each party departed from the standard of care each party owed under the
circumstances: Alberta Wheat Pool v. Northwest Pile Driving Ltd., 2000
BCCA 505 at para. 46. Finch J.A. (as he then was) described the range of
blameworthiness, as follows:

Fault may vary from extremely careless conduct, by which the
party shows a reckless indifference or disregard for the safety of person or
property, whether his own or others, down to a momentary or minor lapse of care
in conduct which, nevertheless, carries with it the risk of foreseeable harm.

[141]     Mr. Audette
cites a number of cases in which the courts have apportioned liability between
the driver of a vehicle and a pedestrian based on the conduct of the pedestrian.
Perhaps the closest on the facts to this case is Mori v. Weeks, 2001
BCSC 1094 where the defendant’s vehicle struck the plaintiff while the
defendant was trying to get away from the plaintiff. The plaintiff had picked
up the defendant without her permission during a water fight which upset the defendant.
When the defendant subsequently went to leave in her car, the plaintiff tried
to open the door and he banged on her window. As the defendant backed up to
leave, the bumper of her car struck the plaintiff’s knee.

[142]    
Mr. Justice Wilkinson  apportioned liability 40% to the plaintiff and
60% to the defendant driver, stating:

[28] As to the plaintiff, his misconduct must not only be
considered at the boulevard at the time the defendant began backing up to leave
the party. The whole series of events leading up to that moment, and the part played
by the plaintiff, has to be looked at.

[38] In any event, it is obvious
that in the circumstances he did not take sufficient care to remove himself
from the area and to avoid the car. That might be so for any pedestrian in a
similar situation. Here, where he had put the defendant in her state of
emotional upset and concern for herself, and where he knew her emotional state,
he has to accept considerably more responsibility for what happened than an
unknowing pedestrian would.

[143]     These
comments are particularly apt in the circumstances of this case. I find that Mr. Ackley’s
conduct viewed in its entirety evidences a failure on his part to take
reasonable care for his own safety. His actions created the circumstances that
led directly to his injuries. Whether at the time of impact he moved directly
in front of Mr. Audette’s car, as Mr. Audette says, or he had turned
and was walking away, as he alleges, in either case he failed to exercise
reasonable care in light of the circumstances that he again created.

[144]     That said,
Mr. Ackley was a pedestrian and Mr. Audette was in his car, leaving
Mr. Ackley in the more vulnerable position. Although Mr. Ackley may
have instigated and controlled the situation until Mr. Audette entered his
car, once Mr. Audette began operating his vehicle he posed a potential
risk to any bystanders and was required to exercise reasonable caution and
restraint. Moreover, as I have found, Mr. Audette’s action in moving back
into the parking space that he had just vacated was unpredictable and the
evidence did not establish that there was no other route by which he could have
exited the scene. Finally, Mr. Audette’s testimony indicates that he
suspected that Mr.Ackley was intoxicated and at the very least appreciated that
he was acting erratically. Given this understanding of the situation, a
reasonable driver would not have rapidly accelerated his vehicle as
Mr. Audette did.

[145]     In the
circumstances, Mr. Audette must bear a greater share of the liability for
the Incident. Accordingly, I apportion liability 60% to Mr. Audette and
40% to Mr. Ackley.

Damages

Findings of Fact as to Mr. Ackley’s Condition

[146]     There is
no question that Mr. Ackley suffered significant injuries as a result of
the Incident. While the most serious of those injuries, the pelvic fractures,
healed over the course of the following months, the evidence uniformly
established that Mr. Ackley continues to experience pain in his hips,
pelvis and low back some five years after the Incident. It is also apparent
that he continues to experience some emotional and psychological difficulties. I
am satisfied on the evidence that these ongoing issues were caused by the
Incident.

[147]     I accept
that the Incident has had a significant impact on Mr. Ackley’s enjoyment
of life as well as on his future employment opportunities. However, I do not
find that the impacts are as extensive as he claims. For example, it is clear
that he returned to playing hockey relatively soon after the Incident and his
attempt to explain away the apparent number of games played was unconvincing. Similarly,
his evidence about his work history after the accident was vague and he has
offered no explanation as to why he has not sought alternate employment since
leaving DNA in May of 2014.

Non-Pecuniary Damages

[148]     Mr. Ackley
submits that an award of non-pecuniary damages in the amount of $135,000 is
appropriate given the nature of his injuries and their lasting impact.
Mr. Ackley cites Tarasevich v. Samsan, 2013 BCSC 1914 and Slocombe
v. Wowchuk, 2009 BCSC 967 in support of his position.

[149]     Mr. Audette
submits that a more reasonable award for non-pecuniary damages is in the range
of $50,000-70,000, citing Anderson v. Kozniuk, 2014 BCSC 1206, Araujo
v. Vincent, 2012 BCSC 1836 and Biggar v. Felker, 2002 BCSC 998.

[150]     I do not
propose to review the facts of the cases relied on by the parties but I have
read and considered them, along with the general principles governing awards of
non-pecuniary damages established by the authorities: see Stapley v.
Hejslet, 2006 BCCA 34 at paras. 45-46.

[151]     Applying
those principles to my findings as set out in paras. 146 and 147, I
conclude that an appropriate award on non-pecuniary damages is $100,000.

Past Wage Loss

[152]     Mr. Ackley
claims for past income loss based on the premise that but for the injuries
sustained in the Incident, he would have completed an electrical apprenticeship
and worked as an electrician. This premise also forms the basis for his claim
of lost future earning capacity, which I will address below.

[153]     Mr. Ackley
relies on the report of Mr. Carson who opines that the gross income for an
apprentice electrician from the date of the Incident, June 8, 2010, to trial
would have been $166,332. Mr. Ackley acknowledges however that some
deduction must be made to that amount to reflect the fact that Mr. Ackley
was not employed at the date of the Incident. Mr. Ackley submits that a
reasonable figure for past income loss is $100,000, which includes the above
deduction as well as notional income tax. From that amount, he subtracts his
actual net earnings of $58,195 resulting in a claim for $41,805.

[154]     Mr. Audette
acknowledges that Mr. Ackley was unable to work for a period following the
Incident but notes that he returned to work at DNA in September of 2010. He
worked at DNA until May 2011 when he said he stopped due to pain and a work slowdown.
He resumed work at DNA in February 2012 and continued until July 2014.

[155]     As can be
seen, there are significant gaps in Mr. Ackley’s pre-trial employment
history, which have not been adequately explained. For example, it is not
entirely clear why he left work at DNA in May 2011 given that he has referred
to both pain and a work slowdown. In particular, it is unclear whether he left
work voluntarily or was laid off. To the extent that he says pain was an issue,
there is nothing in the medical evidence to establish a change or worsening of
his condition at that time.

[156]     Mr. Ackley
does not explain how it came about that he returned to work in February 2012
nor does he explain what he did in the interim period to attempt to find
employment other than at DNA.

[157]     Mr. Ackley’s
evidence is also vague about why he left DNA in July of 2014. While he
attributes this to an increase in pain, there is no clear explanation of how or
if his condition changed at that time so as to prevent him from doing work that
he had performed over the previous two plus years since resuming employment
with DNA in February 2012.

[158]     Mr. Audette
also points to the fact that Mr. Ackley lost his driver’s licence in May
of 2014 and that he told Dr. Oshun that he lost his job after losing his
licence. Dr. Shadmani also records Mr. Ackley telling her on July 16,
2014 that he had lost his job.

[159]     Lastly, Mr. Ackley
gave no evidence of attempts to find work since leaving DNA in July of 2014. He
did register for the theoretical component of the electrical apprenticeship,
with classes scheduled for the fall of 2014 but he did not attend as he said he
could not afford it. He has since re-registered and says that he intends to
take the classes beginning in August of 2015.

[160]     Given Mr. Ackley’s
uneven work history and the absence of a clear explanation for why he was not
working at the time of the Incident and why he left DNA in May of 2011 and
again in July of 2014, it is unrealistic to assume that but for the Incident,
he would have completed his electrical apprenticeship and worked as an
electrician. To proceed on such an assumption overstates what his likely income
would have been from the date of the Incident to trial, even with the
deductions proposed by his counsel.

[161]     Having
said that, the assessment of damages for past wage loss is not focussed solely
on the question of what a plaintiff would have earned during the period in
question given that claims for income loss, both past and future, are in fact
claims for loss of earning capacity (Rowe v. Bobell Express Ltd., 2005
BCCA 141 at para. 30; Ibbitson v. Cooper, 2012 BCCA 249 at para. 19).

[162]    
Where the alleged loss of earning capacity is premised on a hypothetical
event, which in this case is Mr. Ackley’s stated objective of becoming an
electrician, the court must assess the likelihood of that event occurring. This
point is made clear by the Court of Appeal in Smith v. Knudsen, 2004
BCCA 613 where Madam Justice Rowles held that a party need not prove a past
hypothetical event on a balance of probabilities. At para. 31, Madam
Justice Rowles cited the following passage from that Court’s previous decision
in Gill v. Probert, 2001 BCCA 331 at para. 9:

Athey v. Leonitte [1996] 3 S.C.R. 458, relied on by the
plaintiff, held that past events such as negligence and causation between fault
and injury must be proved on a balance of probabilities and thereafter treated
as certainties. However, Mr. Justice Major stated (at para. 27)
that hypothetical events need not be proved on a balance of probabilities, and
they are simply to be given weight according to their relative likelihood. In
assessing hypothetical events there is no reason to distinguish between those
before trial and those after trial. In making an allowance for
contingencies the trial judge was assessing the hypothetical events that could
have [a]ffected the plaintiff’s employment earnings, according to the assessment
to their relative likelihood.

[emphasis in Smith.]

[163]     As Madam
Justice Rowles held at paras. 36-37, the court must first be satisfied on
a balance of probabilities that the negligence of the defendant caused the
plaintiff’s loss. Once that threshold test is met, the court must then assess
the likelihood that the event said to give rise to the loss would in fact have
occurred.

[164]     Here, I
have no difficulty finding on a balance of probabilities that the injuries
sustained in the Incident due to Mr. Audette’s negligence impaired Mr. Ackley’s
capacity to earn income. I also accept Ms. Smith’s evidence that given his
condition, Mr. Ackley is unable to function as an electrician. However, as
stated, it is unrealistic to assume that but for the Incident Mr. Ackley would
have become an electrician. Based on his work history, his failure to complete
grade 12 and his weak academic skills, as tested by Mr. Nordin, I think it
is more reasonable to assume that there was at best a 50% likelihood of Mr. Ackley
successfully qualifying as an electrician.

[165]     Applying
this likelihood to Mr. Ackley’s claim for past income loss leads to the
following analysis. Mr. Carson’s figure of $166,332, being the amount that
Mr. Ackley could have earned as an electrician from the date of the
Incident to trial, is reduced to $83,166 to reflect the 50% likelihood of that
occurring. That figure is then reduced for income tax, and I accept Mr. Ackley’s
figure of 20% for this purpose. This takes the figure to $66,532.80. From that
mount is subtracted Mr. Ackley’s actual net earnings of $58,195, leaving a
balance of $8,337.80.

[166]     This
amount however likely undervalues Mr. Ackley’s impaired earning capacity. Had
he not realized his objective of becoming an electrician, it is likely that he
would have pursued other remunerative employment and his ability to do so was
impaired by the Incident. He is entitled to be compensated for that impairment.

[167]     Recognizing
that an award of damages for income loss involves an assessment rather than a
precise calculation, I think a reasonable award for past income loss in the
circumstances of this case is $15,000.

Loss of Future Earning Capacity

[168]    
The principles governing an award of damages for loss of future earning
capacity are well known and have been articulated by the Court of Appeal in
numerous decisions. In Morgan v. Galbraith, 2013 BCCA 305, the Court,
citing its earlier decision in Perren v. Lalari, 2010 BCCA 140 [Perren],
described the approach to be taken by the trial judge as follows at para. 53:

…in Perren, this Court held that a trial judge must first
address the question of whether the plaintiff had proven a real and
substantial possibility that his earning capacity had been impaired. If the
plaintiff discharges that burden of proof, then the judge must turn to the
assessment of damages. The assessment may be based on an earnings approach…or
the capital asset approach

[Emphasis
in original.]

[169]     The
earnings approach is generally appropriate where the plaintiff has some
earnings history and where the court can reasonably estimate what his/her
likely future earning capacity will be. This approach typically involves an
assessment of the plaintiff’s estimated annual income loss multiplied by the
remaining years of work and then discounted to reflect current value, or
alternatively, awarding the plaintiff’s entire annual income for a year or two:
Pallos v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d)
260, 53 B.C.A.C. 310 at para. 43; Gilbert v. Bottle, 2011 BCSC 1389
at para. 233 [Gilbert]. While there is a more mathematical
component to this approach, the assessment of damages is still a matter of
judgment not mere calculation.

[170]     The
capital asset approach, which is typically used in cases in which the plaintiff
has no clear earnings history, involves consideration of a number of factors
such as whether the plaintiff:

i)      
has been rendered less capable overall of earning income from all types
of employment;

ii)    
is less marketable or attractive as a potential employee;

iii)   
has lost the ability to take advantage of all job opportunities that
might otherwise have been open; and

iv)   is less valuable to
herself as a person capable of earning income in a competitive labour market: Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353, 35 A.C.W.S. (2d) 96 at para. 8 (S.C.)
Gilbert at para. 233.

[171]     Mr. Ackley
submits that he has an established earnings history that can be used to assess
his future income loss using the earnings approach. Again, he bases his claim
on the premise that but for the injuries sustained in the Incident, he would
have completed his apprenticeship as an electrician and would have pursued a
career in that field. He points to the fact that both his father and his
brother are electricians, suggesting that it is the “family business”.

[172]     Mr. Ackley
again relies on the report of Mr. Carson who has provided a present value
calculation of the future income of males employed as electricians as well as
present value calculations of future incomes for other occupations such as
truck drivers, delivery drivers, and various unskilled and semi-skilled
occupations. Mr. Carson’s figure for career earnings as an electrician,
net of all labour market contingencies, is $1,900,323. His comparative
calculations indicate, for example, that if Mr. Ackley was re-employed as
a delivery driver, he would earn $825,891 less over his working life than he
would earn as an electrician, in present day dollars. The difference would be
$1,048,523 if Mr. Ackley can only engage in unskilled occupations with
medium or light strength requirements. As a further alternative scenario, if Mr. Ackley
loses $30,000 per year in income due to his injuries, Mr. Carson
calculates his loss to be $899,130 to $966,000 depending on his age of
retirement (65, 67 or 70).

[173]     Mr. Ackley
submits that the evidence establishes that he is incapable of working in his
chosen occupation as an electrician and that based on the vocational testing
and physical capacity testing, the range of alternate occupations open to him
is limited. He seeks damages in the amount of $875,000.

[174]     Mr. Audette
submits that Mr. Ackley has failed to prove that there is a real and
substantial possibility of a future income loss. He submits that the evidence
does not establish that Mr. Ackley is incapable of working and points to
the fact that Mr. Ackley did work for significant periods of time
following the Incident. Mr. Audette submits further that it is very
unlikely that Mr. Ackley would have qualified as an electrician given his
poor math skills. Lastly, Mr. Audette submits that, in any event, Mr. Ackley
is capable of functioning in occupations other than as an electrician, for
example as a truck driver, where the wages are comparable to those earned by
electricians.

[175]     I find
that, on the evidence, Mr. Ackley has established a real and substantial
possibility that his earning capacity has been impaired as a result of the
injuries suffered in the Incident. The issue then is how to quantify his loss.

[176]     Once
again, Mr. Ackley’s claim for loss of future earning capacity is based on
the hypothetical proposition that but for the Incident, he would have become an
electrician. I accept that Mr. Ackley is not able to function as an
electrician due to his injuries but, as stated above, I have found that the
likelihood of that hypothetical event occurring is at best 50%.

[177]     The
evidence is unclear as to what other occupations are open to Mr. Ackley and
he gave no evidence about alternative careers that interest him or that he
thinks he can function in. However, taking account of Ms. Smith’s opinion
of his physical capacity and Mr. Nordin’s opinion of his vocational
aptitudes, it is reasonable to assume that Mr. Ackley is capable of some
employment falling within the category of “unskilled occupations with medium or
light strength requirements” identified in Mr. Carson’s report. According
to Mr. Carson, career earnings in this category would be $851,800.

[178]     Using the
50% likelihood that Mr. Ackley would have become an electrician and
applying that to Mr. Carson’s career electrician earnings of $1,900,323
results in a figure of $950,161.50. Assuming that Mr. Ackley is capable of
earning income of $851,800 in an unskilled position, the difference is
$98,361.50.

[179]     I would
round this figure up to $100,000 and award Mr. Ackley damages in this
amount which, in my view, is fair and reasonable to both parties (Miller v.
Lawlor, 2012 BCSC 387 at para. 109).

Cost of Future Care

[180]    
In Tsalamandris v. McLeod, 2012 BCCA 239 at paras. 62-63,
the Court of Appeal confirmed the well-established test for future care damages
emanating from Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33:

[62] The test for assessing future care costs is
well-settled: the test is whether the costs are reasonable and whether the
items are medically necessary: Milina v. Bartsch (1985), 49 B.C.L.R.
(2d) 33 at page 78; affirmed (1987), 49 B.C.L.R. (2d) 99 (C.A.):

3.
The primary emphasis in assessing damages for a serious injury is provision of
adequate future care. The award for future care is based on what is reasonably
necessary to promote the mental and physical health of the plaintiff.

[63]
McLachlin J., as she then was, then went on to state what has become the
frequently cited formulation of the “test” for future care awards at page 84:

The test for determining the
appropriate award under the heading of cost of future care, it may be inferred,
is an objective one based on medical evidence.

These
authorities establish (1) that there must be a medical justification for claims
for cost of future care; and (2) that the claims must be reasonable.

[181]     Mr. Ackley
relies on the recommendations of Dr. Gilbart, Dr. Belle and Dr. Kendall,
as well as his family doctor Dr. Shadmani, who all say that Mr. Ackley
would benefit from a dedicated and focussed program of physiotherapy and
exercise.

[182]     Mr. Ackley
submits that an annual cost of $1,000, which he characterizes as a rough
estimate of occasional physiotherapy, an annual gym membership and the cost of
periodic medications, is reasonable. Projected over the balance of Mr. Ackley’s
lifetime results in a claim for $33,542 using Mr. Carson’s present day
value multiplier.

[183]     Mr. Audette
submits that given Mr. Ackley’s history, it is unlikely that he would
pursue or utilize any of the treatment options proposed by the doctors and that
the court should therefore decline to make any award under this head.

[184]     I accept Mr. Ackley’s
evidence that his failure to engage in a regular exercise program in the past
was due in part to a lack of resources to pay for such a program. I also accept
that he is sincere in wanting to do what is necessary to improve his overall
condition.

[185]     I also
accept that, on the evidence, some form of active rehabilitation program is
warranted. I note in particular Ms. Smith’s recommendation in her second
report that Mr. Ackley “would benefit from participation in an active
exercise program supervised by a kinesiologist.”

[186]     While
there is no evidence quantifying the cost of such a program, I think that Mr. Ackley’s
“rough estimate” of $1,000 per year is reasonable. However, there is no basis
in the evidence for awarding that amount over the course of Mr. Ackley’s
entire life. A more likely course of treatment is a number of supervised
sessions followed by a self-directed program as recommended by Dr. Kendall.

[187]     Using Mr. Carson’s
multiplier, $1,000 per year over five years amounts to $4751. In the
circumstances, I find $5,000 to be a reasonable award for future care costs.

Special Damages

[188]     Mr. Ackley
has submitted a claim for special damages in the amount of $1,949.55. Mr. Audette
agrees with the list of special damages presented with the exception of one
item, labelled Xbox Live, and certain prescriptions for Ativan. Mr. Audette
says that Mr. Ackley’s use of Ativan, which is an anti-anxiety medication,
pre-dates the Incident.

[189]     Mr. Ackley
agrees that the Xbox item was included by mistake but submits that the Ativan
prescriptions, issued after the Incident, relate to anxiety caused by the
Incident.

[190]     I agree
with Mr. Ackley and award special damages in the amount of $1,882.36.

Mitigation

[191]    
Mr. Audette submits that Mr. Ackley has failed to mitigate his
damages by not following treatment recommendations made by various doctors. He
cites the following well-known passage from Chiu v. Chiu, 2002 BCCA 618:

[57] The onus is on the defendant to prove that the plaintiff could have
avoided all or a portion of his loss. In a personal injury case in which the
plaintiff has not pursued a course of medical treatment recommended to him by
doctors, the defendant must prove two things: (1) that the plaintiff acted
unreasonably in eschewing the recommended treatment, and (2) the extent, if
any, to which the plaintiff’s damages would have been reduced had he acted
reasonably. These principles are found in Janiak v. Ippolito,
[1985] 1 S.C.R. 146.

[192]     Mr. Audette
notes that both Dr. Gilbart and Dr. Belle recommended the diagnostic
procedure of injecting an anesthetic into Mr. Ackley’s hip in order to
better determine the source of his pain. That has not been done and Mr. Ackley
offered no explanation for why not.

[193]     Mr. Audette
points as well to the recommendations of Dr. Belle, Dr. Shadmani and Ms. Smith
about the need for Mr. Ackley to pursue a more aggressive exercise and
strengthening program.

[194]     Mr. Ackley
again testified that he has not engaged in a more directed exercise program due
to a lack of funds. I accept that this is partially true but it does not fully
explain Mr. Ackley’s failure to take steps to improve his condition.

[195]     However,
the programs suggested by the various doctors were very general in nature and
it is not apparent that the recommendations of Dr. Belle and Dr. Gilbart
were ever passed on to Mr. Ackley given that they were made in
medical-legal reports submitted to his counsel.

[196]     In the circumstances,
Mr. Audette has not established that Mr. Ackley failed to follow
specific treatment recommendations made to him or that, had he done so, his
damages would have been reduced.

[197]     I
therefore decline to make any reduction to Mr. Ackley’s damages for a
failure to mitigate.

Punitive Damages

[198]     Mr. Ackley
advances a claim for punitive damages. He cites Whiten v. Pilot Insurance
Co., 2002 SCC 18 where the Supreme Court endorsed the use of punitive
damages in exceptional cases in which compensatory damages would not adequately
deter and punish outrageous conduct.

[199]    
Mr. Ackley summarizes his position in his written submissions as
follows:

…an award of compensatory damages
in this matter is insufficient to achieve individual deterrence and punishment
or to signal public deterrence. The defendant’s conduct in this case was by any
standard outrageous. It is the plaintiff’s position that this court ought to
deter and punish this conduct and that the absence of criminal charges, the
primary vehicle of punishment, necessitates an award of punitive damages to
address the defendant’s vindictive, malicious and violent act of road rage.

[200]     Mr. Ackley’s
position is premised in large measure on his belief that Mr. Audette ran
him over on purpose. I have found that not to be the case. It is true that Mr. Audette
fled the scene, which showed poor judgment on his part, but he did return soon
after and dealt with the authorities.

[201]     In my
view, Mr. Audette’s negligent conduct in striking Mr. Ackley with his
car does not warrant an award of punitive damages, particularly in light of the
fact that Mr. Ackley created the circumstances that led to the Incident.

Conclusion

[202]     In
summary, Mr. Ackley has proven the following damages:

[203]     Mr. Ackley
is entitled to recover 60% of this amount, or $133,129.42, from Mr. Audette
in accordance with the apportionment of liability as set out in these reasons.

[204]    
Subject to any submissions that the parties wish to make, Mr. Ackley
is entitled to 60% of his costs at scale B pursuant to s. 3(1) of the Negligence
Act.

“Skolrood
J.”