IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Lane v. Wahl, |
| 2015 BCSC 1779 |
Date: 20151001
Docket: M101225
Registry:
Vancouver
Between:
Gerald Lane
Plaintiff
And
Alan Reidar Wahl
and Daniel S. Weightman
Defendants
–
And –
Docket: M104264
Registry:
Vancouver
Between:
Gerald Lane
Plaintiff
And
Robert Paul Pierce
Defendant
–
And –
Docket: M134517
Registry:
Vancouver
Between:
Gerald Lane
Plaintiff
And
BMW Canada Inc.
Vishal Raj Naiker
Defendants
Before:
The Honourable Mr. Justice Sewell
Reasons for Judgment
Counsel for the Plaintiff: | E.J. McNeney, Q.C. R.B. McNeney |
Counsel for the Defendants: | H. Grewal L. Karr |
Place and Date of Trial: | Vancouver, B.C. February 16-20, 23, |
Place and Date of Judgment: | Vancouver, B.C. October 1, 2015 |
Table of Contents
Loss of Past Income Earning Capacity
Injuries Suffered in the Second
Accident
Medical Evidence with Respect to the
Third Accident
Loss of Future Income Earning
Capacity
Special Damages and Cost of Future
Care
[1]
Gerald Lane was born on January 30, 1953. He is a qualified carpenter
who worked at that occupation until he was injured in a motor vehicle accident
on July 7, 2008. Since that time, he has been unable to work at that occupation
as a result of injuries suffered in three successive motor vehicle accidents.
[2]
The accidents occurred on July 7, 2008, March 13, 2010 and March 9,
2012. Mr. Lane suffered some injuries in all three accidents. He has brought
separate actions seeking damages for personal injuries arising from each of the
three accidents. The three actions were tried together before me. It is agreed
that Mr. Lane suffered his most serious physical injuries in the second
accident.
[3]
The defendants in the first and third accidents have admitted liability
to Mr. Lane. However the defendant in the second accident has denied
liability and submits that Mr. Lane is solely responsible for that accident. Mr.
Lane continues to suffer symptoms from the second and third accidents. It is
therefore necessary for me to determine liability in the second accident and to
determine which of his injuries are attributable to which accident. In
addition, there is an issue about whether Mr. Lanes continuing back pain is
caused by a pre-existing natural condition.
[4]
In these reasons, I will first address the question of who is at fault
in the second accident. I will then address the quantum and allocation of
damages.
The Second Accident
[5]
Mr. Lane is a motorcyclist. On March 13, 2010, he suffered serious
injuries when the motorcycle he was operating collided with a Ford F450 flat
deck truck owned and driven by the defendant, Robert Pierce, on 203rd
Street in Maple Ridge.
[6]
Mr. Lane testified that in the mid-morning on March 13, 2010, he turned
on to 203rd Street in Langley and proceeded in a southbound
direction. Mr. Lane needed a pair of dress shoes that he had left in a storage
locker at the end of 203rd Street and was on his way to retrieve
them. After turning onto 203rd Street, Mr. Lane caught up to a Ford
F450 flat deck truck. He followed that truck for some distance. The road was
straight and visibility was good. Mr. Lane said there was a light rain falling
and the roadway was wet but not flooded. He estimated his speed and the speed
of the truck at about 50 kph or less.
[7]
Mr. Lane stated that just after the truck crossed the intersection of
203rd Street and 125th Avenue it moved completely into
the left oncoming lane of traffic but continued on at the same speed. He
testified that he did not see any active turn signal go on the truck, although
he was looking for a turn signal. When the truck moved into the left lane, Mr. Lane
did not know what it was going to do but he says he prepared to slow down by
placing his right hand on the front brake lever on the motorcycle and his right
foot on the foot brake for the rear wheel. However, he did not apply the brakes
at that time.
[8]
Mr. Lane said that after the truck was entirely in the left lane it
started to slow down and it scare[d] him a little bit because there was no
previous indication that it would slow down; he had seen neither any brake
light nor signal. He said that at that point he was hard on the brakes and
pulled over to the right of the southbound lane.
[9]
I must confess that I found Mr. Lanes evidence as to what occurred next
to be somewhat confusing. His evidence was that he was looking for a route to follow
if the truck turned back into the right lane. He stated that there was a
possibility that he had a route to the right of the paved roadway and that he
might squeak through between a ditch and some shrubs. However, he did not
explain how it was that he had come to be in a place of danger at that time.
[10]
In any event, Mr. Lane said that by the time he was looking for a route
to avoid the danger, he was applying maximum braking. He testified that he
was skidding his front and rear tires but still keeping control. At that point
he noticed the front wheel of the truck turn towards him. He leaned down as
hard as he could and tried to go into the driveway to the right of the truck
but was struck by a part of the deck. He testified that he was afraid that he
might break his neck in a collision with the back of the truck because the
height of the deck was approximately level with his head. In an attempt to
avoid life-threatening injury, he manoeuvered himself so that he collided with
the middle of the truck, at a point where two tool boxes hung down from the
deck. He believes that the tool boxes were his point of impact with the truck.
[11]
Mr. Pierce has a markedly different recollection of the circumstances of
the accident. Mr. Pierce is now retired but in 2010 was self-employed as a
truck driver who hauled salvage vehicles. On the morning of March 13, 2010, he
was returning to his home on 203rd Street after having dropped off a
car at a yard.
[12]
Mr. Pierce testified that he always checked the brake lights and turn
signal lights on his truck before he left home in the morning. He said he did
so for a number of reasons, including a concern that the police might notice a
faulty light.
[13]
Mr. Pierce said that he was proceeding southbound on 203rd
Street when he noticed a motorcycle in his rear view mirror. He stated that he
was initially driving at about 50 kph but began to slow down as he approached
the intersection of 125th Avenue and 203rd Street. Mr.
Pierces house was located one house to the south of the intersection and had a
large driveway and parking area in front of it to the right of cars travelling
in the southbound lane. It was his practice to park his truck on the driveway
at a right angle to 203rd Street.
[14]
Mr. Pierce said that he turned on his right turn signal when he reached
a point on 203rd Street immediately adjacent to a power pole
approximately two metres south of the stop sign on 125th Avenue. He
testified that he did not engage the signal sooner because he did not want to give
other drivers the impression that he was turning right on to 125th
Avenue. He stated that he took his foot off the accelerator as he crossed 125th
Avenue to slow his truck in preparation for the turn into his driveway but did
not say that he engaged the brakes.
[15]
At some point between the power pole and his driveway, Mr. Pierce said
that he pulled somewhat into the northbound lane to make a wide turn into his
driveway. He was firm in his evidence that he had his right turn signal on
throughout this maneuver. His evidence was that no more than one-half of the
width of his truck was in the northbound lane as he made his turn. He also
stated that by the time he made the turn he was driving dead slow. Mr. Pierce
says that he first became aware that the motorcycle might be in a position of
danger when he saw it to the right of his truck in his side view mirror as he
made his turn. At the time he saw Mr. Lanes motorcycle it was upright with Mr.
Lane on it.
[16]
Mr. Pierce said he did not hear any horn before noticing the motorcycle
and was not sure he had collided with it until he stopped and got out of his
truck and noticed Mr. Lane lying on the ground.
The Position of the Parties
[17]
Mr. Lane submits that Mr. Pierce is solely responsible, or at least
partially responsible, for the accident. He relies on s. 167 of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318, which states:
167 A driver of a vehicle must not turn the vehicle to
the right from a highway at a place other than an intersection unless
(a) the driver causes the vehicle
to approach the place as closely as practicable to the right hand curb or edge
of the roadway, and
(b) the vehicle is in the position on the highway required
by paragraph (a).
[18]
Mr. Lane says that Mr. Pierces truck was entirely in the left lane of
traffic when, suddenly and without warning, it made a sharp right turn into the
right lane and drove Mr. Lanes motorcycle off the road and into the driveway
of Mr. Pierces home, where the two vehicles collided.
[19]
While Mr. Lane never expressly said so, I must conclude that he was
intending to pass Mr. Pierces truck by continuing to proceed in the southbound
right lane while Mr. Pierces truck remained in the left lane of the road. I
reach this conclusion because I cannot conceive of any other way in which Mr.
Lane could have found himself in the position of danger he was in immediately
before the accident. On his own evidence, he must have been alongside of the
truck when it commenced its right hand turn.
[20]
Mr. Pierce submits that Mr. Lane is entirely responsible for the
accident because he attempted to pass Mr. Pierces truck to the right in the
same traffic lane occupied by the truck when it was unsafe to do so. Mr. Pierce
relies on s. 158 of the Motor Vehicle Act, which he submits Mr. Lane
breached:
158 (1) The driver of a vehicle must not cause or
permit the vehicle to overtake and pass on the right of another vehicle, except
(a) when the vehicle overtaken is
making a left turn or its driver has signalled his or her intention to make a
left turn,
(b) when on a laned roadway there
is one or more than one unobstructed lane on the side of the roadway on which
the driver is permitted to drive, or
(c) on a one way street or a
highway on which traffic is restricted to one direction of movement, where the
roadway is free from obstructions and is of sufficient width for 2 or more
lanes of moving vehicles.
(2) Despite subsection (1), a
driver of a vehicle must not cause the vehicle to overtake and pass another
vehicle on the right
(a) when the movement cannot be
made safely, or
(b) by driving the vehicle off the roadway.
Conclusion as to Liability
[21]
There were no independent witnesses to the accident. I have two quite
different versions of the accident from the parties. After having heard both
parties testify, and considering the reasonable probabilities of the situation,
I conclude that I must prefer Mr. Pierces evidence to that of Mr. Lane.
[22]
I found that Mr. Pierce gave his evidence in a straightforward manner.
He gave a reasonable and credible explanation for his belief that he had
engaged his turn signal and that his brake lights were functioning properly at
the time of the accident. I also take into account the fact that he was an
experienced truck driver who was well familiar with the area of the accident
and would have been unlikely to make any sudden turns in the manner of those
suggested by Mr. Lane in his evidence.
[23]
As I have already indicated, I had difficulty in understanding how Mr.
Lane found himself in a position of danger prior to the accident. His evidence
about what the truck did does not seem to be consistent with the reasonable
probabilities of the surrounding circumstances: Gichuru v. Smith, 2013
BCSC 895; Faryna v.Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.). In particular,
I do not find it credible that Mr. Lane was preparing to brake as Mr. Pierces
truck moved over into the northbound lane and then somehow found himself beside
Mr. Pierces truck in a position of danger.
[24]
I therefore find that Mr. Pierce did not move his truck completely out
of the right lane of traffic but did move somewhat into that lane in the
process of making his right hand turn. I find that Mr. Pierce did activate his
turn signal to indicate his intention to turn right as he cleared the
intersection of 203rd Street and 125th Avenue. I am also
satisfied on the balance of probabilities that his brake lights were working on
the day in question and that they were on when he commence to brake his truck.
[25]
Counsel for Mr. Pierce relies on Fabellorin v. Peterson , 93
B.C.L.R. (2d) 105 (C.A.), [1994] B.C.J. No. 628, for the proposition that there
is a heavy onus on a driver who passes another vehicle on the right:
13 Section 160
[now, section 158] imposes a heavy onus on the driver of a vehicle attempting
to pass other vehicles on the right. More especially is this so when the
vehicles ahead have stopped or slowed on the roadway other than at an
intersection or a crosswalk when there is no apparent reason for their doing
so. The very fact that they have done so should alert the driver of the
overtaking vehicle, intending to pass, that there must be some reason for the
drivers ahead of him to have acted as they did and this should have alerted the
overtaking driver to exercise extra caution to ensure that he or she can pass
on the right safely.
[26]
More recently, in Ormiston v. Insurance Corporation of British
Columbia, 2014 BCCA 276, the Court of Appeal has again emphasized
the heavy burden on a driver who passes another vehicle on the right in a
travelled lane of traffic. In Ormiston, the Court found a cyclist who
had passed a stopped vehicle on the right to be 100% liable for the accident.
[27]
I conclude that Mr. Lane was in violation of s. 158 of the Motor
Vehicle Act when he proceeded to pass Mr. Pierces truck on the right in
the same lane of traffic that Mr. Pierces truck was partially occupying. I
accept Mr. Pierces evidence that no more than one-half of the width of his
truck was in the oncoming lane when he made his right turn into his driveway.
[28]
On the facts that I have found, I am unable to find that Mr. Pierce was
acting in contravention of s. 167 of the Motor Vehicle Act. I find that
Mr. Pierce was operating his truck as closely as practicable to the right side
of the southbound lane to permit him to successfully turn into his driveway. I
am also satisfied that his truck continued to occupy a portion of the
southbound lane throughout his turning maneuver. Given that Mr. Pierces truck
continued to occupy a significant portion of the southbound lane, that he
engaged his turn signals before he began his turn and that he engaged his
brakes before the turn, I do not think he was negligent in failing to notice
that Mr. Lane was attempting to pass him on the right.
[29]
I conclude that the best that can be said for Mr. Lane is that he
believed that Mr. Pierce intended to turn his truck to the left but failed to
keep a proper lookout to notice the turn signals on Mr. Pierces truck engage
to signal a right hand turn. Mr. Lane acknowledges that he was following Mr.
Pierces truck. The implication of his evidence is that he was following at a
safe distance for much of the way down 203rd Street. I find that if
he had been keeping a proper lookout he would have observed Mr. Pierces turn
signals engage in ample time for him to stop his motorcycle and avoid the
collision in which he was so seriously injured.
[30]
Based on my findings of fact, I conclude that Mr. Lane is solely
responsible for the March 2010 accident and his claim against Mr. Pierce must
be dismissed.
Damages
[31]
Mr. Lane suffered injuries in all three accidents in which he was
involved. He is entitled to damages for the injuries he suffered in the two
accidents for which liability is admitted.
[32]
To assess the damages that Mr. Lane is entitled to recover, I must first
assess his damages from the first accident. Next, I must consider the effect
the second accident had on Mr. Lanes damages in regards to future loss
stemming from the first accident. Finally, I must determine what injuries Mr.
Lane suffered in the second accident in order to determine his pre-accident
condition to assess the damages he suffered in the third accident.
The First Accident
[33]
The first accident occurred on July 7, 2008. Mr. Lane was operating his
motorcycle southbound on 203rd Street and Lougheed Hwy in Maple
Ridge when another motorcycle pulled out from a gas station so close in front
of him that it was impossible for him to take any evasive action. There was
some confusion about which motorcycle hit which, but in any event, there was a
collision between the two and Mr. Lanes motorcycle was knocked to the ground.
[34]
Mr. Lane was injured in the accident and felt immediate pain in his
right, non-dominant, shoulder. He also experienced pain in his right wrist and
left hip.
[35]
The injuries to the wrist and hip healed uneventfully after a few months
but the right shoulder injury did not. Mr. Lane continued to suffer from
discomfort and a significantly limited range of motion in that shoulder.
Despite kinesiology, his shoulder had not improved by September.
[36]
In September, an MRI did not show any significant findings to explain
his continuing symptoms. However, in December an enhanced MRI procedure
disclosed a partial rotator cuff tear with labral pathology and loss of the
axillary pouch of the glenohumeral joint indicating adhesive capsulitis.
[37]
In April 2009, he was seen by Dr. Regan, an orthopedic surgeon, who
diagnosed the following conditions:
1.
Post traumatic adhesive capsulitis of the right shoulder;
2.
Long head of biceps dislocation or rupture;
3.
Impingement syndrome right shoulder; and
4. Labral
tear of right shoulder.
[38]
Dr. Regan recommended surgery that would have required a five month
period of rehabilitation to allow Mr. Lane to regain range of motion and
strength in the right shoulder. However, after seeing Dr. Regan, Mr. Lane
consulted with another physician, Dr. Shearer, who advised Mr. Lane with
respect to an exercise program that alleviated his symptoms significantly. In
August 2009, Mr. Lane was again examined by Dr. Regan, who described him as
vastly improved and concluded that surgery was no longer necessary. At that
time, Mr. Lanes range of motion had improved to 160 degrees of forward
elevation and full abduction and external rotation and Dr. Regan cleared him
for return to work.
[39]
Mr. Lane did attempt to return to work as a framing carpenter in the
summer of 2009 but concluded that he required further conditioning to be able
to meet the physical demands of that occupation. I am satisfied that he
continued to work diligently to regain his strength and to achieve complete
range of motion in his shoulder. I find that by the time of the second accident
he was almost ready to return to work. There was some suggestion in the medical
evidence that Mr. Lane might have required further rehabilitation beyond March
2010. However, given my findings with respect to liability in the second
accident it is unnecessary to make any finding in that regard.
[40]
It is not disputed that as a result of the serious injuries Mr. Lane
suffered in the second accident he was incapacitated for a period beyond the
expected date of recovery from the first accident.
[41]
Mr. Lane is entitled to non-pecuniary damages for his injuries suffered
in the first accident and compensation for loss of income earning capacity for
the period from July 7, 2008 to March 13, 2010. I accept the submission of
counsel for the defendants that any damages for loss of earning capacity
suffered in the first accident must terminate as of the date of the second
accident.
[42]
This principle is stated in a number of cases cited by the
defendants, including Athey v. Leonati, [1996] 3 S.C.R. 458 and Wood
v. Boutilier, [1998] N.S.J. No. 417, 171 N.S.R. (2d) 18, which states:
45 In Athey v. Leonati (1996) 203
N.R. 36 (SCC) the Supreme Court of Canada addressed the issue of
novus actus interveniens. The Court clearly indicated that the basic principal
of tort law is that a plaintiff is to be placed back in the position they were
in prior to the tortious act of the defendant. The plaintiff should be
compensated for his losses resulting from the actions of the defendant but
should not be put in a position which is better than he or she would have been
in prior to the accident.
46 In the present case the
injuries sustained by the plaintiff in the accident of October 12th, 1997,
clearly superseded the injuries of the August, 1993 accident. In saying this I
note that I am referring only to the loss of income claim and the claim for
future care costs as advanced by the plaintiff. There is no evidence before the
Court which would indicate that the plaintiff does not continue to suffer from
the excruciating pain which he had experienced prior to the accident. The only
apparent difference now is that the plaintiff perhaps has no way of expressing
the continuing pain. In this case the plaintiff was rendered totally disabled
from obtaining employment as the result of the first accident. He would also
have been totally disabled as a result of the second accident.
[43]
Mr. Lane has not presented any claim for special damages relating to the
first accident nor has he advanced a cost of care claim in relation to that
accident. Accordingly, the only damages recoverable by him for the first
accident are non-pecuniary damages and damages for loss of past earning
capacity.
Non-Pecuniary Damages
[44]
Mr. Lane suffered serious but not catastrophic injuries in the first
accident. He suffered a serious shoulder injury that incapacitated him for the
period between the first and second accident, required him to engage in
extended rehabilitation, and prevented him from working throughout that period.
[45]
I was somewhat handicapped in assessing damages for the first accident
because counsel for the plaintiff based his submissions on damages on the
assumption that Mr. Pierce would be found liable for the second accident. His
position was that Mr. Lanes injuries were indivisible and ought to be assessed
on that basis.
[46]
However, counsel for the defendants did provide me with some authorities
dealing with injuries similar to those suffered by Mr. Lane in the first
accident. In Grant v. Diels, [1996] B.C.J. No. 1765 (S.C.), the
court awarded non-pecuniary damages of $50,000, the equivalent of approximately
$76,500 in 2015, for similar injuries. In that case, the plaintiff underwent
two surgical procedures for a somewhat more severe shoulder injury. In Gregory
v. Insurance Corporation of British Columbia, 2010 BCSC 352, the
court awarded damages of $60,000 for a shoulder injury that required one
surgical procedure. In Antonishak v. Piebenga, 2012 BCSC 745, the court
also awarded non-pecuniary damages of $60,000.
[47]
Taking all of the circumstances into account and having regard to the
other decisions of this court dealing with somewhat similar injuries, I award non-pecuniary
damages with respect to the first accident in the amount of $70,000.
Loss of Past Income Earning Capacity
[48]
It is not disputed that Mr. Lane was unable to work as a result of his
injuries in the period between the first and second accident. It is also not
disputed that Mr. Lanes injuries from the second accident prevented him
from working for a longer period than he would otherwise have been incapacitated
following the first accident. Given my findings on liability in the second
accident, the damages for loss of income to which he is entitled are limited to
the time from the first accident to the second.
[49]
Mr. Lane is a qualified journeyman carpenter who was employed, either as
an independent contractor or employee, as a framing carpenter for a number of
years before the first accident. There is some dispute in the evidence with
respect to his pre-accident earnings. I am satisfied that at the time of the first
accident, Mr. Lane was capable of working as a carpenter and that he intended
to do so. I am also satisfied that in that period there was sufficient work
available to permit Mr. Lane to find full-time employment. I find that Mr. Lane
would have received a gross salary of $25 per hour had he been able to work in
that period.
[50]
An award for loss of past income is an award for loss of capacity (Rowe
v. Bobell Express Ltd., 2005 BCCA 141 at para. 30). Such a loss can often
be quantified by reference to the pre-accident employment of a plaintiff. Even
if so quantified, however, the loss remains one of loss of capacity. In this
case, Mr. Lanes pre-accident income was negatively affected by some
unsuccessful business ventures in which he engaged. These business ventures tended
to lower his income for periods prior to the accident.
[51]
Based on Mr. Lanes circumstances at the time of the first accident, his
age and his capabilities, I find that it is likely that he would have pursued
and obtained full-time employment from July 7, 2008 to March 13, 2010 had he
not been injured. However, I also am of the view that there was a substantial
possibility that he may have faced some brief periods in that time when there
would have been no work available. That being said, I am satisfied that there
would have been some overtime available to him.
[52]
Taking all these considerations into account, I assess Mr. Lanes
damages for loss of income earning capacity in that period at $80,000. This amount
must be adjusted to take income tax into account. If the parties are unable to
agree on the appropriate tax adjustment they may make further submissions to
me.
Injuries Suffered in the Second Accident
[53]
While I have found that Mr. Lane is solely at fault for the second
accident, and it is therefore unnecessary to assess damages for the injuries he
suffered, I must still review his injuries from that accident to determine his
condition prior to the third accident.
[54]
In addition, I have concluded that one of the injuries he suffered in
the second accident is indivisible from the injuries he suffered in the third
accident.
[55]
It is not disputed that Mr. Lane suffered very serious injuries in the
second accident. His physical injuries are accurately summarized in the
plaintiffs submissions:
·
Severely comminuted fracture of the left distal tibial diaphysis.
The distal shaft was displaced 2 cm anterolaterally with numerous butterfly
fragments.
·
Comminuted fracture of the distal fibular shaft at the junction
of the middle and distal thirds, with 6 mm lateral and 4 mm anterior
displacement of the distal shaft relative to the proximal, plus apex lateral
angulation of 12 degrees.
·
Transaction extensor tendons, left ankle and foot
·
Small left knee effusion
·
Aggravation of his shoulder injury from the first motor vehicle
accident
[56]
Mr. Lane required eight significant surgical procedures, culminating in
an operation to remove a small section of his tibia that resulted in a
shortening of the affected left leg by approximately 2.5 centimetres. The
discrepancy in the length of Mr. Lanes legs resulted in difficulties in
balance and caused pain and discomfort in his pelvic region due to the
disruption of his gait.
[57]
In addition to these physical injuries, I find that Mr. Lane suffered a
major depressive disorder triggered by the second accident. In this regard, I
accept the evidence of Dr. Miki that the onset of the major depressive disorder
was precipitated by the injury to Mr. Lanes leg and the long and difficult
course of treatment he underwent to address that injury.
The Third Accident
[58]
The third accident occurred on March 9, 2012, just a few days short of the
second anniversary of the second accident. Mr. Lane was driving a friends
pickup truck on Marine Way approaching the intersection of Marine Way and Boundary
Road in Burnaby. As he approached Boundary Road, he observed that the traffic
light was red and began braking to stop his truck. Shortly after he commenced
braking he noticed that his truck was not coming to a stop. He had been unaware
of any collision up to that point and at first thought his brakes had failed.
Before coming to a stop, Mr. Lane looked in his rear view mirror and saw some
debris in the air and realized at that point his truck had been rear-ended.
[59]
Mr. Lane did not notice any movement of his body relative to the truck
until the truck came to a stop. He testified that at that point he felt a
short, quick spike of pain in his lower back and it felt like one of his
vertebrae was going out of line.
[60]
After the accident, Mr. Lane noticed that the right rear fender of his
truck had been pushed into the wheel. He was able to pull the fender out enough
to stop it from rubbing the wheel. He then proceeded to drive to the airport to
pick up a friend and drop her off at her home.
[61]
In the period immediately before the third accident, Mr. Lane said that
he was feeling better and was taking steps to prepare to return to work. He
said he was physically stronger. For example, he testified that he was able to
lift 235 lbs on the weight machine in the gym and was able to walk four kilometres
and do wind sprints. He acknowledged in his evidence that he was not capable of
returning to his former occupation as a framing carpenter because of problems
with his balance but said he was taking steps to find work as a carpenter in a
shop setting. One area he was exploring was the possibility of working in the
film industry building sets.
[62]
Mr. Lane testified that he was pretty sore when he woke up the morning
after the accident. He was surprised because he did not think he had been hurt
in the accident. He said that he felt pain in his lower back, shoulders and
neck. Mr. Lane did not seek medical attention at that time. However, the pain
continued to worsen and his lower back pain became very intense over time.
[63]
By that time, Mr. Lane was staying with his sister who helped him into
the car and took him to Ridge Meadows Hospital. When they arrived at the
emergency ward his sister helped him into a wheel chair to go into the
hospital. At the hospital he was given an X-ray and had some morphine
administered to him. When he was released he was provided with ibuprofen and
told to see his family doctor, Dr. Lytle, if he did not improve.
[64]
Shortly afterwards, Mr. Lane went to his family doctor. He does not
recall if he saw his regular doctor or a locum. The doctor prescribed Tylenol
3s but these eventually upset his stomach and caused constipation and he was
placed on tramadol, which was less upsetting for him.
[65]
Mr. Lane testified that after the third accident he continued to
experience lower back pain that did not improve. This pain prevented him from
continuing with any exercises in the gym requiring the use of his legs. However,
for a time he did continue with workouts involving his upper body. He testified
that from a few weeks after the third accident up to the time of trial he continued
to suffer from pain in his lower back.
[66]
At trial, Mr. Lane gave specific evidence that the pain was between the
L4 and L5 vertebrae. When asked where that was he said it was around his belt
line. Mr. Lane distinguished this pain from the pain he had experienced before,
which he described as centered in the pelvic region, and related to the
difficulties he experienced from having his leg shortened after the second
accident.
[67]
Mr. Lane said that he was initially advised that the pain in the middle
of his lower back was the result of soft tissue injury that should improve with
rest and the use of anti-inflammatory pain medication. However he testified
that the pain did not improve and this made it harder and harder to exercise.
Eventually he stopped exercising altogether and his body condition deteriorated.
He gained a great deal of weight and became deconditioned. He stated that there
are times when his back is in such pain, he is immobilized and has to stay in
bed. At one point he described having to use a wheelchair to go to the pool to
exercise.
[68]
Mr. Lane did get some very temporary relief from localized injections of
anaesthetic but this relief lasted only a few hours. He has considered but not
pursued, corrective surgery as well as a procedure called radiofrequency
ablation. The latter treatment, Mr. Lane believes, may hold out some hope for
improvement in his pain. As of the date of trial he has not had any such
treatment. As Mr. Lanes physical conditioning and ability to exercise has
diminished, his mood has also deteriorated.
[69]
As I will expand on later in these reasons, I also find that Mr. Lane
suffers from a major depression disorder attributable to the second and third
accidents.
Medical Evidence with Respect to the Third Accident
[70]
Apart from the issue of liability for the second accident, the most
contentious issue in this case is the cause of Mr. Lanes low back pain that
manifested itself after the third accident and continues to cause him
debilitating pain. There is a disagreement in the medical evidence as to the
cause of this pain.
[71]
Dr. Lytle is of the view that the pain is a direct result of the third
accident. Dr. Lytle does agree that the pain is associated with
degenerative changes to Mr. Lane lumbar spine and, in particular, with a
degenerative osteoarthritic L4-5 facet joint. However, he points out that Mr.
Lane did not experience pain in this region before the third accident. He
states in his report that one might say that the Motor Vehicle Accident
aggravated a silent pre-existing condition. Dr. Lytle goes on to conclude that
but for the third accident, Mr. Lane would not have his current pain and
disability.
[72]
Dr. McGraw conducted two examinations of Mr. Lane; one on October 25,
2012 and one on November 13, 2014. In his report following the October 25, 2012
examination, Dr. McGraw was of the opinion that any back pain being experienced
by Mr. Lane originated in his pelvic area and was the direct cause of the
surgical shortening of his left leg as a result of the serious injury and
subsequent infection of that leg caused by the second accident. Dr. McGraw stated
that Mr. Lane made no mention of the third accident at the first examination.
[73]
Dr. McGraw is now of the opinion that Mr. Lanes current low back
symptoms are caused by lumbar spine arthritis without any significant
contribution from the third accident. Dr. McGraw is also of the opinion that
the pain is aggravated by marked weight gain, poor posture, inactivity and
deconditioning.
[74]
There is reason to have some reservations about both opinions as to the
cause of Mr. Lanes current low back pain. Dr. Lytle has obvious sympathy for
Mr. Lane, who has been his long-term patient. In addition he does not explain
how the third accident could have aggravated what he concedes to be the
underlying cause of Mr. Lanes back pain. On the other hand Dr. McGraw does
demonstrate some frustration with Mr. Lane for not disclosing the third
accident at his first medical examination and this may be colouring his
attitude towards Mr. Lane. I do not suggest that either doctor is attempting to
mislead me, only that these are considerations I must take into account in
assessing their evidence.
[75]
I find that Mr. Lane suffered a mild soft tissue injury in the third
accident. On balance, I am forced to conclude that this soft tissue injury is
not the predominant physical cause of Mr. Lanes ongoing back pain. I conclude
that the preponderance of evidence shows that the primary physical cause of the
back pain Mr. Lane is suffering is that identified by Dr. McGraw, that is,
degenerative arthritis aggravated by the factors set out at paragraph 73.
[76]
I find that the third accident has contributed to Mr. Lanes
depressive symptoms and that those depressive symptoms are attributable to the
second and third accidents.
[77]
I accept Dr. Mikis opinion that Mr. Lane suffers from a major
depressive disorder. The evidence does not disclose any major depressive
episodes resulting from the first accident and I find that this accident did
not make any material contribution to this complaint. It is, however, quite
clear that Mr. Lane was severely depressed after the second accident. The
evidence also shows that he was making some significant improvement both in his
physical and emotional health before the third accident. Both Dr. Miki and Dr.
McGraw commented on Mr. Lanes marked deterioration in November 2014, after the
third accident.
[78]
Based on the pattern of Mr. Lanes symptoms, and in particular the
marked deterioration in his mood after the third accident, I conclude that his
depressive disorder is caused or contributed to by both the second and third
accidents. Mr. Lanes depression has affected his physical conditioning and
functioning. In turn, Mr. Lanes back pain is aggravated by his deconditioning
and inactivity, including his marked weight gain and poor posture. I accept
that Mr. Lanes ongoing depression is substantially connected to the back pain
he continues to experience.
[79]
Based on this conclusion, I must address the extent to which the third accident
is a cause of Mr. Lanes back pain. The principle is explained by Neilson J.A.
in Ferrant v. Latkin, 2011 BCCA 336:
49 Turning to the judge’s analysis, I am satisfied
that two uncontentious facts demonstrate that, in finding the plaintiff had
failed to establish the disabling pain would not have occurred "but
for" the defendant’s conduct, the trial judge considered only whether the
accident was the sole cause of the disabling pain, and failed to turn his mind
to whether there was a substantial connection between that pain and the
accident.
50 The first was the consensus of the medical
witnesses that the plaintiff’s spinal degeneration made him more vulnerable to
the injuries he sustained in the accident. This demonstrated some
inter-relationship between the two potential causes of the disabling pain, and
should have led the judge to consider whether the accident was a trigger that
accelerated and aggravated the spinal degeneration, causing the disabling pain
to develop earlier than it would have without the accident. In short, were the
whiplash and spinal degeneration both a necessary cause of a single and
indivisible disability?
51 The second was the
trial judge’s finding that the plaintiff’s condition after the accident never
resolved to its pre-accident state. This established that the injury from the
accident continued to contribute to the plaintiff’s back pain to some degree at
the time of trial. The trial judge was therefore obliged to assess the extent
of its contribution, and determine if it was substantially connected to the
disabling pain beyond the de minimus range. If so, the crumbling skull
doctrine would come into play, requiring an assessment of what the plaintiff’s
condition would have been had the accident not occurred.
[80]
I am satisfied that Mr. Lanes disorder and complaints are genuine and
that his present psychological distress is directly attributable to the
combined effects of the second and third accident. I find that the major
depressive disorder has made a substantial contribution to the debilitating
back pain suffered by Mr. Lane after the third accident.
[81]
I am not convinced that Mr. Lanes underlying degenerative changes to
his spine would have become symptomatic even if he had not been involved in the
third accident. There is no indication that he was troubled by his arthritic
condition prior to the third accident. Dr. McGraw attributed the low back pain
he reported in his initial examination to complications from the shortening of
his leg and not to any pre-existing condition. Dr. Lytle does not report
any significant issues with the back prior to the third accident. Most people
of Mr. Lanes age have some degree of degenerative change in their spines but
many do not develop symptoms. On balance, I therefore conclude that prior to
the third accident there was a low likelihood of the degenerative changes
becoming symptomatic.
[82]
These findings raise the issues of how the damages from the major
depressive disorder should be assessed and allocated. I am satisfied that the
major depressive disorder suffered by Mr. Lane is an indivisible injury arising
from the cumulative effects of the second and third accidents. Mr. Lanes
depressive disorder was triggered initially by the second accident, for which
he is entirely at fault. However, I am satisfied that he was recovering from
the effects of the disorder at the time of the third accident, which caused a
recurrence of severe symptoms. In my view the major depressive disorder that
Mr. Lane now suffers was caused by both accidents and is an indivisible injury.
[83]
In the absence of any fault on the part of Mr. Lane, the other drivers
involved in the second and third accidents would be jointly and severally
liable for the damages arising from the major depressive disorder. However, Mr.
Pierce was not at fault for the second accident. On these facts, I adopt the
analysis of Harvey J. in Bilanik v. Ferman, 2014 BCSC 732, and
find that the defendants in the third accident are only liable for the damages for
which they are at fault. This requires me to apportion the damages attributable
to the indivisible injury between the second and third accidents.
[84]
The law is clear that apportionment of liability under the Negligence
Act, R.S.B.C. 1996, c. 333, should be based on the relative fault of the
persons responsible for the damage as opposed to the degree to which they are
found to be responsible for the injuries as stated in Alberta Wheat Pool v.
Northwest Pile, 2000 BCCA 505:
[40] Both parties referred us to Cempel v. Harrison Hot
Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) 219 (C.A.) as to the correct
interpretation of "fault" in the Negligence Act, R.S.B.C.
1996, c. 333, and the distinction to be drawn between
"blameworthiness" and "causation".
[41] This case is governed by s. 1(1) of the Negligence
Act which provides:
Apportionment of liability for damages
1 (1) 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.
[42] In Cempel, supra, this Court held that the
learned trial judge had erred in applying s. 1 based on an assessment of the
extent to which the parties could be said to have caused the loss or
injury suffered by the plaintiff. In rejecting that approach, Mr. Justice
Lambert for the majority said:
[19] I think that such an approach
to apportionment is wrong in law. The Negligence Act requires that the
apportionment must be made on the basis of "the degree to which
each person was at fault". It does not say that the apportionment
should be on the basis of the degree to which each person’s fault caused
the damage. So we are not assessing degrees of causation, we are assessing
degrees of fault. In this context, "fault" means blameworthiness. So
it is a gauge of the amount by which each proximate and effective causative
agent fell short of the standard of care that was required of that person in
all the circumstances.
. . .
[85]
In this case I am unable to find that either Mr. Lane or the defendants
in the third accident are more at fault for the injury he suffered in the
second and third accidents. It seems to me that in both cases, the parties
responsible for the accidents had a momentary lapse of attention that led to
the accidents in question. I do not find that Mr. Lane knowingly acted
recklessly in the second accident by attempting to pass a vehicle on the right
when he knew the vehicle was about to make a right hand turn. Rather, I think
it more likely that he was preoccupied with getting to the storage locker to
retrieve appropriate attire for the funeral he planned to attend later that day
and simply failed to see the turn signal on Mr. Pierces vehicle. I do not
consider his fault to be any greater than Mr. Naikers in the third
accident. In both cases, the party responsible failed to keep a proper lookout
to avoid a collision with a vehicle that they were approaching from behind. In
these circumstances, I assess equal fault for the indivisible injury of the
depression suffered by Mr. Lane following the second and third accidents.
Accordingly, Mr. Lane is entitled to recover one-half of the damages
attributable to the major depressive disorder from the defendants in the third
accident.
Non-Pecuniary Damages
[86]
The particular circumstances of this case require me to assess non-pecuniary
damages in an unusual way. I conclude that Mr. Lane suffered two injuries in
the third accident. The first was a relatively minor soft tissue injury to his
lower back. The second was a recurrence of the major depressive disorder he
first suffered after the second accident and which manifested in ongoing back
pain following the third accident. I am satisfied that it is the latter injury
that is the principal cause of the symptoms and disability from which Mr. Lane
is currently suffering. In this regard, I accept Dr. McGraws evidence that Mr.
Lanes back pain is aggravated by marked weight gain, poor posture, inactivity
and deconditioning. However, I also find that these factors are the direct
result of Mr. Lanes major depressive disorder. I am satisfied that it is that
disorder that prevents Mr. Lane from taking the steps necessary to address
these aggravating factors.
[87]
Turning first to the physical injuries to the lumbar region of the
spine, I am satisfied that in the absence of the major depressive disorder, Mr.
Lane would have recovered from any effects attributable to the third accident
within a short period of time. I assess Mr. Lanes damages for that injury at
$25,000.
[88]
Mr. Lane has suffered greatly from the effects of the major depressive
disorder. Based on Dr. Mikis report, the prognosis for this disorder is not
promising. It has now been some three years since the third accident and Mr.
Lane continues to suffer serious consequences from that condition. However,
based on my observations of Mr. Lane, and in particular the obvious extent to
which this litigation has become a central focus of his life, I conclude that
once this case is behind him it is reasonable to expect that he will experience
some improvement in his mood and ability to address the aggravating factors
identified by Dr. McGraw.
[89]
I am somewhat hampered in assessing damages for this injury because
neither counsel made submissions with respect to assessing damages for the specific
injury, namely depression, that I have found to be attributable to the third
accident. The plaintiffs submissions assumed that there would be a finding of
liability for the second accident. The defendants submissions did not include
reference to any cases dealing with prolonged ongoing depressive symptoms. For
the defendants, Mr. Grewal referred me to Hubbard v. Saunders, 2008
BCSC 486. In that case Humphries J. awarded non-pecuniary damages of $45,000
for all injuries, including significantly less severe psychological symptoms.
[90]
In Thompson
v. Choi, 2015 BCSC 1283, the court awarded a 44-year-old journeyman sheet-metal
worker $90,000 for his injuries, which included soft tissue injuries and
depression. The court noted that as a result of the accident, the plaintiff
became distraught, depressed and sought counselling for his anger and
frustration (at para. 138). Mr. Lanes soft tissue injuries are not as
significant as those in Thompson but Mr. Lanes depression is greater.
[91]
In MacLean v. Budget-Rent-A-Car of Edmonton Ltd. et al, 2006 BCSC
1344, a 49-year old plaintiff was awarded $80,000 in non-pecuniary damages for
injuries including chronic back pain, shoulder and knee problems and
depression. The plaintiff had been injured in two motor vehicle accidents and confirmed that his
depression commenced after Accident #1, then improved, but worsened again after
Accident #2 (at para. 23). His depression interfered with his ability to work.
This court accepted that successful treatment of the plaintiffs depression
would have a positive effect on his long-term prognosis.
[92]
In Jopling v. Brodowich, 2009 BCSC 653, a 63-year-old plaintiff
was rear-ended and suffered headaches, shoulder, neck and back pain. She also
suffered depression following the accident. The court found that [h]eadaches, lack of sleep
and depression do not seem to have bothered the plaintiff much, if at all,
before the accident (at para. 37). She was awarded $75,000 in non-pecuniary
damages.
[93]
Taking into account the severity of Mr. Lanes present symptoms, their
duration and the guarded prognosis of Dr. Miki, I award non-pecuniary damages
for the major depressive disorder of $80,000. In accordance with my above
reasons, Mr. Lane is entitled to recover $40,000 with respect to this injury
from the defendants in the action relating to the third accident.
Loss of Future Income Earning Capacity
[94]
I agree with counsel for the defendants that Mr. Lane likely would have
curtailed his employment to a large extent as a result of the second accident.
Nevertheless, I am satisfied that the third accident did reduce his future
income earning capacity. As against this conclusion, I also am of the view that
there are a large number of contingencies that should substantially reduce any
award in this regard.
[95]
Taking these contingencies into account, I award Mr. Lane $10,000 for
loss of future income earning capacity. As I am of the view that the loss of
future income earning capacity is attributable to the indivisible injury, the
major depressive disorder, this award will be reduced to $5000 to take into
account the degree to which I have found Mr. Lane to be at fault for that
injury.
Special Damages and Cost of Future Care
[96]
In his written submissions, counsel for the defendants stated that the
only claims for special damages and cost of future care arise out of the
injuries suffered in the second accident. Counsel for Mr. Lane did not appear
to dispute that submission.
[97]
Based on the forgoing paragraph, I make no award under either of these
heads of damage. However, I grant leave to the plaintiff to make further
submissions on these heads given my finding that there is an indivisible injury
with respect to the second and third accident.
Summary of Relief
[98]
Damages for the first accident are awarded as follows:
1. | non-pecuniary damages: | $70,000 |
2. | loss of past income earning capacity: | $80,000 (less deduction for income tax) |
[99]
Damages for the third accident are awarded as follows:
1. | non-pecuniary damages for soft tissue injury | $25,000 |
2. | non-pecuniary damages for indivisible injury | $40,000 |
3. | loss of future earning capacity | $5,000 |
[100] The
parties will be at liberty to make further submissions as to costs.
The Honourable Mr. Justice Sewell