IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100712

Docket: 54415

Registry:
Nanaimo

Between:

Michael Furness

Plaintiff

And

Richard Guest and
TTL Enterprises Ltd.

Defendants

Before:
The Honourable Mr. Justice Halfyard

Reasons for Judgment

Introduction

[1]            
This has been the trial of an action brought by Michael Furness for
damages for personal injuries. The plaintiff alleges that he was injured on
February 13, 2007, when he was struck by a large tractor truck which
was being driven by the defendant Richard Guest and which was owned by the
defendant TTL Enterprises Ltd. The plaintiff alleges that the accident was
caused by the negligence of Mr. Guest.

[2]            
The plaintiff alleges that as the result of the accident, he sustained
fractures to the bones in his right knee, soft tissue injuries in his right
knee and other less serious injuries. He claims damages for pain and suffering
and loss of enjoyment of life in the range of $60,000 to $80,000. He claims
special damages in the amount of $1,020.77.

[3]            
The defendants admit that the plaintiff was hit by the truck, but they deny
that Mr. Guest drove the truck in a negligent manner. They say that the
accident was caused solely by the negligence of the plaintiff. It was implicit
in the position of the defendants that, if there was any liability on the part
of Mr. Guest, then his percentage of fault would be very small in
proportion to the fault that must be borne by the plaintiff. It is admitted
that at the time of the accident, Mr. Guest was working in the course of
his employment with the corporate defendant.

[4]            
As to damages, the defendants submit that the upper end of the
applicable range of damages would not exceed $40,000. The defendants allege
that the plaintiff has failed to mitigate his damages by failing to follow
recommended treatment, and that any damages that may be awarded should be
reduced on that ground. No specific objection was made to either of the two
amounts ultimately claimed as special damages.

Liability

The Accident

[5]            
A number of the facts relating to the accident are not in dispute, and I
find them to be as follows. The accident occurred in downtown Nanaimo at around
11:30 a.m. on February 13, 2007, at the intersection of Highway 1
(also called Nicol Street) and Esplanade Street. Nicol Street runs roughly
north and south, and Esplanade Street runs roughly east and west, at the
intersection in question. For vehicular traffic travelling south on Nicol
Street, there are two lanes of travel for vehicles travelling across Esplanade
Street through the intersection. There is also a lane for southbound vehicles
intending to turn left (east) off Nicol Street onto Esplanade Street. This
left-turn lane is adjacent to and on the east side of the two lanes for southbound
traffic.

[6]            
Vehicle movement at the intersection in question is controlled by
traffic signal lights. The actions of pedestrians who intend to cross Nicol
Street (from east to west or from west to east) are controlled by separate
signal lights for pedestrians only. There is a marked cross walk for each of
the four possible portions of roadway that a pedestrian might be walking
across, at the intersection (See the aerial photograph at Tab 2 of Exhibit 4).

[7]            
Just before the truck driven by Mr. Guest hit the plaintiff, he had
been driving south on Nicol Street and had stopped in the left-turn lane,
intending to turn left onto Esplanade. He stopped, because there was a red
light for all traffic heading south on Nicol Street. The front of the bumper of
his truck was at least a few feet away from the nearest line of the pedestrian
cross walk.

[8]            
Just before the truck hit him, the plaintiff was walking across Nicol
Street from west to east. When he left the curb and began crossing, the
plaintiff was within the lines of the cross walk. His friend, Glen George, had
walked across the road, ahead of him. Mr. Guest saw Mr. George’s head
as he walked past the front of his truck.

[9]            
The eastbound pedestrian light signal sequence was:

a)    “Walk” signal –
7 seconds;

b)    Flashing “Don’t walk”
signal – 13 seconds;

c)     Solid
“Don’t Walk” signal.

[10]        
By the time the plaintiff had walked from the curb to the front corner
of the passenger side of the truck, the “walk” signal had expired, and a green
arrow became illuminated which permitted Mr. Guest to turn left through
the intersection onto Esplanade. The left-turn arrow would remain green for 7
seconds, and would then be yellow for 3.9 seconds. Mr. Guest drove the
truck slowly forward to commence his left-hand turn. At some point during this
movement, the front bumper of the truck hit the plaintiff and knocked him down
causing significant injury to his right knee.

[11]        
Mr. Guest did not see the plaintiff before the truck ran into him,
and did not know that his truck had collided with a pedestrian. He stopped his
truck, because he saw a person waving at him to do so. Mr. Guest had not
seen the plaintiff step off the curb to cross Nicol Street, and did not know
that the plaintiff was in the cross walk when he began to drive his truck
forward.

[12]        
The “don’t walk” signal for pedestrians was flashing when the plaintiff
stepped off the curb and began crossing Nicol Street. The plaintiff was not
aware of the flashing “don’t walk” signal, at the time he stepped off the curb.
The plaintiff saw the tractor truck in the left-turn lane as he walked toward
it, but he did not know that the truck might move forward before he passed in
front of it. The plaintiff did not know that the truck driver had not seen him
walking across the street.

The Positions of the Parties

[13]        
The plaintiff concedes that he failed to take reasonable care for his
own safety, by leaving the curb when the “don’t walk” signal had begun flashing.
But he says that the traffic signal light for vehicles travelling from west to
east on Esplanade was still green and that he was walking in a marked crosswalk.
The plaintiff alleges that Mr. Guest was negligent in failing to see him
walking in the cross walk before driving forward, when the plaintiff was there
to be seen. It is alleged that this negligent omission on the part of Mr. Guest
was also a violation of s. 181(a) of the Motor Vehicle Act, which
states:

181.     Despite sections 178,
179 and 180, a driver of a vehicle must

a)     exercise
due care to avoid colliding with a pedestrian who is on the highway

. . .

[14]        
The defendants deny that Mr. Guest was negligent and they allege
that he was keeping a proper lookout at all times, for pedestrians. The
defendants allege that the negligence of the plaintiff was the sole cause of
the accident. It is said that he could have reasonably avoided the accident in
two ways. First, the plaintiff should have obeyed the pedestrian traffic
control signal, and remained on the curb until a new sequence of walk signals
could be initiated. Second, the defendants say that the plaintiff could have
avoided being hit by the truck, by simply stepping backwards out of the way,
when it began moving forward. It is alleged that the plaintiff carelessly tried
to run around the front of the truck, after it began moving.

Was Mr. Guest negligent?

[15]        
The evidence establishes a number of other facts which are not in
dispute. It was day light. The sky was overcast, but it was not raining. The
roads were bare and dry. Mr. Guest was driving a 1997 Peterbuilt tractor
truck. The tractor truck is large, and is designed to tow transport trailers on
the highway. It has a double-berth sleeper compartment behind the driver’s seat
and passenger seat.

[16]        
The hood covering the truck engine extended a considerable distance out
in front of the windshield (truck drivers call this model of truck a “long nose
Pete”). There were conventional windows on the driver’s side door and on the
passenger’s side door. A rear-view mirror was mounted near the outer edge of
each side of the windshield at about the level of the door windows. There are
“blind spots” for a driver of this type of truck which can prevent the driver
from seeing objects which are close to the front bumper, and objects which are
close to the passenger side of the truck.

[17]        
No measurements were taken of the length of the cross walk, or the
distance from the curb on the northwest corner to the left-turn lane in which Mr. Guest’s
truck was stopped. Judging from the photographs and diagram in evidence, I
would estimate the distance from that curb to the front passenger side corner
of the truck bumper, to be about 18 to 20 feet.

The Issue

[18]        
Mr. Guest admits that he did not see the plaintiff until after the
collision. The issue is whether he ought to have seen the plaintiff, before he
drove his truck forward. The plaintiff bears the burden of proving that a
reasonably skilled driver, exercising a reasonable degree of care for
pedestrians in the same circumstances that faced Mr. Guest, would have
seen the plaintiff before the collision.

The Evidence

[19]        
Glen George, Michael Furness, Alan Wright and Richard Guest gave
evidence relevant to this issue.

[20]        
Glen George is now 43 years of age. He is a friend of the plaintiff,
having met him in 2005. He and Mr. Furness have lived together in Nanaimo,
Sooke and Esquimalt, off and on, for about three and one-half years. At the
time of the accident, they were living in a basement suite in the Harewood area
of Nanaimo. They had walked from their residence to downtown Nanaimo, and were
intending to cross Nicol Street from the west side to the east side, at the
Esplanade intersection, after coming from a nearby convenience store. Mr. George
walks much faster than Mr. Furness, due to a spinal problem which Mr. Furness
has (Ankylosing spondylosis).

[21]        
Mr. George says that he and Mr. Furness were at the curb
together, but that he (Mr. George) stepped off the curb into the crosswalk
first. He said that the walk signal for pedestrians may have been flashing when
he set out, but the traffic light for vehicles travelling on Esplanade was
still green. Mr. George stated that he walked very quickly across Nicol
Street in front of the tractor truck. He said that the traffic light had turned
from green to yellow by the time he got to the other side of Nicol Street.
Mr. George testified that he turned to see where Mr. Furness was, saw
the truck had moved forward, heard Mr. Furness scream but could not see
him. The truck stopped. He went back and saw Mr. Furness lying on the
road, and obviously injured. He stayed with his friend until the ambulance
came.

[22]        
Michael Furness is now 43 years of age. He began living in Nanaimo in
1999. He and Glen George began rooming together after he broke up with his wife
and their three children remained living with their mother. He and Mr. George
walked downtown on the morning of the accident. He said he was wearing jeans
and a bright red parka. He said that they had been to the Co-op convenience
store to buy a package of cigarettes, and were intending to cross Nicol Street,
and walk down to the Port Place Mall. He said he does not recall much about the
details relating to the accident. He was quite familiar with the intersection,
having walked across it quite a few times before this. He thought the “walk”
sign was on, when he stepped off the curb into the crosswalk to begin crossing.
He thought that the walk signal changed to a flashing amber light soon after he
began walking across. He said he could not walk fast due to his painful back
condition and to a shoulder injury he sustained in 1985.

[23]        
Mr. Furness testified that he saw the tractor truck stopped at the
crosswalk line, in the lane for left-turning traffic. He said that as he began
walking in front of the truck, it moved forward and hit him. He cannot recall
seeing the truck begin to move, before it hit him. He believed the truck tire
ran over his right foot, then his right knee and hip.

[24]        
Mr. Furness said that, at this time, he was regularly taking
prescribed medication for pain management and depression and that these drugs
included methadone. He denied being a drug user and said that the methadone was
for pain control and not to combat any drug addiction.

[25]        
In cross examination, it was suggested to Mr. Furness that he had
told Dr. Gutmanis at the Nanaimo Hospital shortly after the accident that
he was “crossing the street purportedly not at a crosswalk [when] he was struck
by a slow-rolling semi trailer and was thrown about 20 feet.”  Mr. Furness
said he could not recall making that statement to Dr. Gutmanis, but
acknowledged that he may have said it. The question was framed from Dr. Gutmanis’
consult notes of February 13, 2007. Mr. Furness testified, in
effect, that “basically, he hit me and run me over, but 20 feet seems an awful
long way.”

[26]        
Mr. Furness identified his signature on a handwritten statement
dated February 27, 2007. He conceded that he probably gave this
statement to ICBC but said that he didn’t write it or put the date on it, and
he does not recall making the statement. He said he had no reason to dispute it.
This statement was entered into evidence at the instance of the defendants, and
in its entirety reads as follows:

On February 13, I was
crossing Nicol Street at Esplanade and was in the crosswalk proceeding on a
walk sign. As I crossed in front of a large truck in the east-bound turning lane
I was struck by the truck which had moved forward into the crosswalk. My most
significant injury was to my right leg.

[27]        
In further cross examination, Mr. Furness stated that he had taken
some chlomazepam at the drugstore on Victoria Road about 10 minutes before the
accident, but stated that it had no adverse effect on his judgment or other
faculties. He said that he had also taken methadone as a pain killer, but
denied that it made him groggy. He said it takes a minimum of one and one-half
hours to have any such effect on him.

[28]        
Mr. Furness was unable to say how he got to the point where he was
lying on the road some distance outside the crosswalk after the collision. But
he said that he thought he had crawled at least some part of that distance.

[29]        
Mr. Furness testified further in cross examination that he was not
sure who got to the curb first (him, or Glen George),or who set out first to
cross the road. He said that when he first looked at the walk signal sign, he
saw that it was flashing. He stated that he was hit by the passenger side of
the truck. Mr. Furness denied that the traffic light for southbound
vehicles turned green, shortly after he stepped into the crosswalk. He denied
that the truck was moving before he walked in front of it. He insisted that he
was in the crosswalk when the truck hit him. Mr. Furness testified that,
when the truck was stopped as he was crossing, the front bumper was at or just
over the painted “stop” line for left-turning vehicles, and was very close to
the edge of the crosswalk.

[30]        
The first witness called by the defendants was Alan Wright. He is 47
years of age and is a long-time sheet-metal worker. At the time of the
accident, he was working on the roof of the Salvation Army building which is
located at the southeast corner of the intersection in question (and which is shown
in photograph No. 4 of Exhibit 4). The roof on which Mr. Wright was
working was about 40 feet above ground level, and he was working near the front
face of the building. Mr. Wright had himself driven large trucks for
several years in the past, and was keeping a lookout for transport trucks while
he was working, to see if he knew who the drivers were.

[31]        
Mr. Wright testified that he saw the truck that was driven by Mr. Guest,
when it was stopped at the north end of the intersection in the left-turn lane.
He said that the front bumper of the truck was “even with the ‘stop’ line,” and
was not protruding into the crosswalk. He said that there was one car stopped
in each of the southbound traffic lanes on Nicol Street. He could not see the
face of the person who was driving the truck. He could not see the traffic
lights for vehicles or for pedestrians.

[32]        
Mr. Wright testified that he believed the traffic light for
southbound traffic on Nicol Street had turned to green, because the car in the
far curb lane began moving ahead before the tractor truck did. He said that the
car in the next lane (the middle lane) could not move forward, because a person
was walking in front of it. Mr. Wright said that the next thing he remembers
seeing was that the tractor had started moving and a person “jogged and tried
to get around the front of the tractor.”  He said the person ran outside of the
crosswalk, about three to five feet outside. Mr. Wright said that the
truck bumper hit that person, the person went down and was run over by the
wheels of the truck and was flipped out between the top of the wheels and fell
onto the road.

[33]        
Mr. Wright testified that he had driven a similar tractor truck for
about two and one-half years. He stated that the pedestrian’s location would be
in a blind spot area for the driver of such a truck in the front and below the
passenger side door. But he said that the driver of the truck would be able to
see a pedestrian stepping off the curb and walking toward the truck in the
cross walk.

[34]        
In cross examination, Mr. Wright confirmed that he could not see
the signal lights for pedestrians. He testified that he was familiar with this
intersection and he knew that a lot of trucks made left turns onto Esplanade
from Nicol Street in the same way that Mr. Guest was turning. Mr. Wright
testified that this was a dangerous area and that the driver of any motor
vehicle has to keep looking around to be aware of any changing circumstances,
at all times.

[35]        
The defendant Richard Guest testified. He lives in Nanaimo, and is
presently 60 years of age. He had been driving truck for a number of years
since 1986, and had been working for the defendant company for approximately
six months before the date of the accident. He always drove the same truck,
which was the one that he was driving at the time of the accident. That
morning, he was on his way to the Seaspan wharf or warehouse, intending to pick
up a trailer and drive to Port McNeill to take on a load of fish. He was quite familiar
with the intersection at Nicol Street and Esplanade. He was travelling south on
Nicol Street and he stopped at the intersection of Esplanade, in the left-turn
lane, in obedience to a red traffic light. There was other traffic travelling
south on Nicol Street, which was stopped to his right. There was cross traffic
on Esplanade. He looked to his left and to his right, and checked all his
mirrors. The signal arrow for left-turning traffic turned green, and he started
to ease forward. Then he saw something bobbing in front of the truck, over top
of the hood. He stopped. A person ran across the street in front of his truck
to the east side of Nicol Street, and started going north on the sidewalk down
toward the mall.

[36]        
Mr. Guest stated that he then made all of his checks again, to be
sure it was safe to move. He did not see any person and slowly moved his truck
forward, and began making his left-hand turn. Then he saw a man on the curb
waving his arms at him, to stop. He did stop and said he was then at about the
middle of the intersection. He looked in his passenger side rear-view mirror,
and saw a person lying in the road. Mr. Guest stated that he was
travelling at about two kilometres per hour before he stopped. He said he got
out of his truck, took a blanket with him and put it on the man who was lying
in the street. He testified that he talked to the police and ambulance driver. He
said that he was not charged as a result of the accident.

[37]        
In cross examination, Mr. Guest stated that he had about 18 – 19
years of truck-driving experience. He said that the engine hood projected about
six and one-half feet out from the windshield and perhaps nine feet out from
the driver’s position. He said the top of the hood was about six feet above the
ground level.

[38]        
Mr. Guest acknowledged that there are blind spots for the driver of
this type of truck. The blind spot in front of the truck can hide a small car
or a person from view. There is another blind spot around the passenger side of
the truck. Mr. Guest acknowledged that a driver must constantly be on the
lookout so as to be aware of what objects may be in the blind spots. He stated
that a truck driver needs to be aware that it is safe to proceed, before moving
his truck forward.

[39]        
Mr. Guest said that he could see the sidewalk curb and the
crosswalk, to his right side. He acknowledged that his rear-view mirror
obscured his vision to some extent, but said that he could look around it.
Mr. Guest insisted that he looked all around, but agreed that he did not
see the plaintiff and did not know that there was a pedestrian in the blind
spot area. He agreed that it was not unusual to see a pedestrian crossing the
street late in the “walk” signal sequence, but stated that he believed in this
case that the plaintiff was crossing on a red light.

[40]        
Mr. Guest said that he had been alarmed by the first pedestrian
(when he saw the head bobbing in front of the hood as the person ran in front
of the truck). He did not sound his horn. He was not in a hurry after allowing
that pedestrian to pass by, because he still had a steady green arrow in his
favour. He testified that he checked again, looking for any other person or
vehicle that might be in his path, before he moved the truck forward.

Argument

[41]        
Counsel for the plaintiff argued that Mr. Guest was not keeping a
proper lookout for pedestrians crossing Nicol Street from west to east, because
he did not see Glen George until he was in front of his truck, and did not see
the plaintiff at all. Counsel submitted that Mr. Guest assumed that there
would be no more pedestrians crossing, because the left-turn signal arrow
turned green right after the pedestrian (Glen George) passed in front of his
truck.

[42]        
Counsel for the defendants argued that, although Mr. Guest failed
to see the plaintiff before the collision, he testified that he made all
reasonable checks before slowly moving forward in accordance with the green
left-turn arrow signal. It was contended that the plaintiff had failed to
establish that Mr. Guest had breached the standard of care of the reasonable
driver in similar circumstances.

Findings of Fact

[43]        
I find that the “don’t walk” signal was flashing when the plaintiff stepped
into the crosswalk. I am unable to say whether the left-turn signal arrow had
turned green before Glen George passed across in front of the truck. Mr. Guest
believes that it did, but Mr. George did not mention any movement on the
part of the truck until after he had almost reached the other curb. But I am
satisfied that the left-turn signal turned green before Mr. George made it
across the road and before the plaintiff reached the front corner of the truck
on the passenger side, and walked in front of it.

[44]        
Mr. Guest was an experienced and skilled truck driver. He knew that
there were blind spots in his field of vision. He also knew that one pedestrian
(Glen George) had just gotten in front of his truck without his knowledge. In
my opinion, his look out for the presence of any other pedestrian should have
been intensified at that point. In my view, he should have sounded his horn and
taken another very careful look before moving forward. I find it of
significance that Mr. Guest did not see Glen George step into the
crosswalk, or walk toward his truck. He did not see Mr. George until he
was passing in front of the truck.

[45]        
Both Mr. George and Mr. Furness were there to be seen and yet Mr. Guest
did not see either one of them standing at the curb, stepping into the
crosswalk or walking in the crosswalk toward the front of his truck.

Conclusion

[46]        
I conclude that a truck driver who possessed reasonable skill and who
was exercising a reasonable degree of care for pedestrians, in the
circumstances that existed in this case, would have seen the plaintiff before
the collision. The plaintiff was there to be seen, and Mr. Guest’s failure
to see him was, I find, due to his failure to keep a proper look out. In my
opinion, his omission was negligent and was a cause of the accident. It was
also a breach of s. 181(a).

What was the extent of the plaintiff’s contributory negligence?

[47]        
Counsel for the plaintiff conceded that the plaintiff was contributorily
negligent. But he submitted that his fault for the accident should not be
assessed at more than 10 or 20%.

[48]        
Counsel for the defendants relied on ss. 132(3) and 179(2) of the Motor
Vehicle Act.

[49]        
It is clear that the plaintiff stepped into the crosswalk and began
crossing the road, against the walk signal. That was a violation of s. 132(3)(a)
of the Motor Vehicle Act. The relevant part of that section reads as
follows:

(3)        When the word “wait,” the words “don’t walk” or an
outline of a raised hand are exhibited at an intersection . . . by a pedestrian
traffic control signal,

(a)        a pedestrian must not enter the road way, . . .

[50]        
I find that the plaintiff’s conduct amounted to a failure to take
reasonable care for his own safety. The defendant alleges that the plaintiff
was also in breach of s. 179(2) of the Motor Vehicle Act, which
states:

(2)        A pedestrian must not
leave a curb or other place of safety and walk or run into the path of a
vehicle that is so close it is impracticable for the driver to yield the right
of way.

[51]        
The defendants rely on the testimony of Alan Wright who testified that the
person who was hit by the truck (and who could only be the plaintiff ) tried to
get around the front of the truck after it had started moving (and ran outside
of the crosswalk about three to five feet, in doing so).

[52]        
The plaintiff testified that he was unable to recall whether he saw the
truck move forward, before it hit him. He could not explain how he got to the
location outside of the crosswalk where he was lying after the collision,
except to say that he believed he had crawled or dragged himself out of the way
after being hit. The plaintiff testified that he was hit by the passenger side
of the truck. He said the truck was not moving before he walked in front of it
and that he believed he stayed in the crosswalk as he was walking. He denied
that he was running to catch up with Glen George, and implied that it was
almost impossible for him to run.

[53]        
Mr. Wright was an independent witness and there was no challenge to
his honesty. However, there were two things about his evidence that had the
potential to affect the reliability of his version of events. First, at no time
did he see Glen George, who had walked all the way across the street. Secondly,
Mr. Wright’s testimony that the plaintiff was run over by the wheels of
the tractor truck is inconsistent with the opinion of Dr. John Oliver,
orthopaedic surgeon (see page 3 of his report dated July 10, 2009). The
reliability of the plaintiff’s evidence is diminished by his admitted lack of
detailed memory of the events, and the inconsistency with Glen George’s
testimony as to the state of the walk signal. The medical evidence would appear
to confirm the plaintiff’s evidence of his inability to run.

[54]        
I accept Mr. Guest’s evidence that his truck was moving quite
slowly, only a few kilometres per hour at the time it struck the plaintiff. I
find it of significance that Mr. Guest saw Glen George’s head as he walked
across in front of the truck, but he did not see any part of the plaintiff when
he was in front of the truck. It seems improbable, that if the plaintiff was
trying to run around the front of the moving truck (as Mr. Wright
testified) Mr. Guest would not have seen at least his head in front of the
truck. In other words, if the plaintiff had made the manoeuvres described by Mr. Wright,
Mr. Guest would probably have seen some part of him, before the collision.

[55]        
I accept Mr. Wright’s testimony to the extent that I find the plaintiff
did take some evasive action to try and avoid being hit by the truck. It is
possible that he went outside the crosswalk. But I am far from being satisfied
that the truck began moving forward before the plaintiff was even in front of
it, and he then ran out and around the front bumper, in an attempt to get
across in front of it. I do not accept that the plaintiff could have simply
stopped, or taken a step backward, and thereby avoid being hit (which was
suggested by Mr. Wright).

[56]        
In the result, I find that the plaintiff failed to keep a proper look
out for the pedestrian traffic control signal, which caused him to enter the
roadway in disobedience to that signal. That was a violation of s. 132(3)(a)
of the Motor Vehicle Act, and this conduct constituted a failure to take
reasonable care for his own safety. That negligent act was a contributing cause
of the accident. I am not satisfied that the plaintiff was in violation of
s. 179(2). I am not satisfied that he had any opportunity to yield the
right-of-way to the truck being driven by Mr. Guest, because I am not
persuaded that the truck was moving forward before the plaintiff stepped in
front of it.

[57]        
I infer from the plaintiff’s testimony that he believed that the driver
of the truck had seen him, before he stepped in front of the truck. That was a
dangerous and unwarranted assumption. In my opinion, the plaintiff should have
taken steps to ascertain that the truck driver had seen him, before ever
stepping in front of the truck. He could easily have tried to make eye contact
with the driver, or wave his arms to get his attention, before proceeding
forward. This was all the more urgent, because the left-turn arrow had turned
green (which the plaintiff ought to have known, but did not). In my view, the
plaintiff’s failure to make sure that he had been seen by the truck driver,
increased his degree of fault.

How should liability be apportioned?

[58]        
I find that the plaintiff’s degree of fault for the accident is
considerably greater than the degree of fault of Mr. Guest. There is no
legal formula for determining how fault for an accident should be divided. Counsel
for the plaintiff referred me to a number of authorities in support of his
submission that Mr. Guest should bear the far greater fault for the
accident. Of course, the evidence and the findings of fact are different in all
cases. As a consequence, previously-decided cases are of limited assistance at
best. I found the cases of Funk v. Carter 2004 BCSC 866 (Williamson J.)
and Morrison v. Pankratz 1991 CarswellBC 1765 (Shaw J.) to be of some
assistance, particularly in the discussions of the general principles.

[59]        
In my opinion, liability should be apportioned as to 25% against Mr. Guest,
and 75% as against Mr. Furness, and I so order.

Damages

What was the nature and extent of the injuries sustained by the plaintiff?

[60]        
Most of the injuries sustained by the plaintiff are not in dispute and I
find them to be the following:

a)    undisplaced
fracture of the posterior aspect of the medial femoral condyle of the right knee;

b)    tiny fracture of
the very lateral aspect of the lateral tibial plateau, which was undisplaced;

c)     injury to
the soft tissues in and around the right knee joint including a tear of the
posterior horn of the medial meniscus;

d)    other minor
contusions and abrasions.

[61]        
The plaintiff complained of ongoing pain in his right ankle, which he
attributes to the accident of February 13, 2007. The doctors who
attended on the plaintiff did not identify such an injury. The plaintiff
repeated this complaint to Dr. Oliver on July 10, 2009, but Dr. Oliver
“could not find any mechanical reason” for this complaint. The plaintiff also
complained of ongoing pain in his right hip. Dr. Oliver attributed the hip
complaint to factors other than the accident, namely, Ankylosing spondylosis or
possibly arthritis. In my opinion, the evidence fails to establish that the
plaintiff suffered an injury to his ankle or to his hip that was of any
significance, in the accident.

[62]        
The injuries to the plaintiff’s right knee caused excessive swelling and
considerable pain. He spent several days in hospital. His leg was immobilised
in a splint. He was almost totally disabled for a period of time which is
unclear from the evidence but which may have lasted for up to two months. He
was under the care of Dr. Peter Gutmanis, orthopaedic surgeon.

[63]        
An MRI test was conducted on the plaintiff’s right knee on
February 14, 2007, which revealed a complex tear in the posterior
horn and body of the medial meniscus. Dr. Gutmanis recommended
arthroscopic surgery to repair this tear but the surgery could not be done
until the swelling was down and the knee was mobilised. At the end of
March 2007, Dr. Gutmanis recommended physiotherapy, and physiotherapy
sessions were commenced on April 20, 2007. The plaintiff had 11 physiotherapy
sessions up to June 1, 2007. Dr. Gutmanis performed the
arthroscopic surgery on his right knee, on June 4, 2007.

[64]        
The plaintiff recommenced physiotherapy treatments on
June 8, 2007. From then until September 28, 2007, he had 33
further physiotherapy treatments. At that time, his physiotherapist suggested
that the plaintiff could do most of his exercises on his own at home, but
recommended that he continue with one physiotherapy session a week together
with a gym pass so that he could ride a stationary exercise bike. It is unclear
to me whether ICBC approved further physiotherapy treatment. The plaintiff
testified that ICBC had refused to pay for further physiotherapy sessions or a
gym pass, and that evidence was not contradicted.

[65]        
The plaintiff testified that he did his best to do all of the home
exercises that had been demonstrated and recommended by his physiotherapist. He
said that he was given the use of an exercise bike by his landlord and
testified that he used this bike regularly for many months. The plaintiff
described in some detail the exercises that he performed.

[66]        
The plaintiff’s recovery was complicated by the fact that he had a
serious pre-existing condition of Ankylosing spondylosis and a permanent
partial disability in one of his shoulders from a previous injury.

[67]        
It appears that Dr. Gutmanis last examined the plaintiff on
August 9, 2007. I repeat Dr. Gutmanis’ report to Dr. Roe
dated August 9, 2007, in full:

 Mr. Furness is improving but very slowly. He
still walked in with a cane and has some measurable right thigh circumference
atrophy. He insists that he is doing all of his exercises but does admit that
because he is a poor sleeper, he doesn’t get up in time for some of his physiotherapy
and pool classes.

 I think that there is
nothing more that I can offer apart from encouraging him to continue with his
present protocol until he does recover full bulk, strength, and endurance of
his right quadriceps musculature. I can see him in another six weeks if he is
not walking comfortably without a cane.

[68]        
The plaintiff testified about the adverse effects of his injury on his
ability to engage in his former activities. As mentioned, his pre-existing
spinal condition was painful, and had already impaired his ability to walk to
some extent. But the injury to his right knee further impaired his ability to
walk. For a considerable period of time, he had to use a cane to assist him in
walking. From time to time, he still requires the use of a cane, although there
is a dispute as to whether the knee injury of February 13, 2007, is
the cause of this ongoing problem. He says he cannot walk as far now as he
could before the accident, and there is more pain associated with walking now
than there was before.

[69]        
The plaintiff does not own a car and apparently has no one to drive him
from place to place. The restriction on his ability to walk has consequently
limited his ability to maintain his family and social relationships as often as
he would like to.

[70]        
The pain in his knee has frequently caused interruptions to the
plaintiff’s sleeping at night. This in turn has affected his ability to get
proper rest and maintain a regular schedule.

[71]        
Understandably, the plaintiff’s recreational activities were quite
limited before the accident. However, he did engage in some water sports and
winter sports, which he can no longer do (except for some swimming).

[72]        
The plaintiff has had nightmares of and relating to his accident
experience of being hit by a truck. The accident has made him fearful of
walking across streets. These things have caused him considerable emotional
upset. He has also experienced panic attacks which he attributes to the
accident, but which have been diminishing considerably. The plaintiff had been
taking medication for anxiety and depression before the accident, but he says
this condition worsened thereafter.

[73]        
The effects of the knee injury on the plaintiff’s life, as he described
them, were confirmed by the testimony of Glen George.

Has the plaintiff recovered from the injuries he sustained in the accident,
and their effects on him?

[74]        
The plaintiff continues to complain of pain in his right knee and says
that this pain still limits his physical activities to some extent. He also states
that he still has nightmares and panic attacks from time to time, and that he
is fearful of crossing streets.

[75]        
With respect to the assertions of ongoing knee pain and limits to the
plaintiff’s physical activities, there is an issue as to causation. The
defendants allege that the plaintiff’s pre-existing conditions of Ankylosing
spondylosis and serious shoulder injury are the causes of most (and perhaps
all) of the plaintiff’s ongoing pain and disability. In addition, the defendants
allege that the plaintiff has injured his right knee on two occasions, in 2008
and 2009.

[76]        
The plaintiff admitted that his pre-existing (and continuing) back pain
and shoulder pain are contributing factors to the restriction on his walking
ability. But he testified that the ongoing pain in his right knee is the major
cause of this impairment. In cross-examination, the plaintiff admitted that he
had fallen on a ramp and hurt his knee. The medical records show that he saw Dr. Roe
on September 15, 2008 after this fall and told Dr. Roe that he was back to
using a cane. Dr. Roe noted that he advised the plaintiff to “get rid of
it in a week.”  There is no further reference to this incident in the medical
records, and I infer that the injury was not serious.

[77]        
The plaintiff also admitted that he was assaulted and robbed on Douglas
Street in Victoria and sustained several injuries as a result, including an
injury to his right knee. The medical records show that the plaintiff visited Dr. Jeff
Pocock in  Sooke on August 12, 2009, and told Dr. Pocock that he had been
assaulted the previous night at about 10 p.m. Dr. Pocock’s note of August
26, 2009 indicates that the swelling was “down” in the plaintiff’s right knee
but stated that he was arranging for an MRI. No further reference appears in
the medical records in relation to this injury, so far as I can tell. Dr. Pocock’s
note of September 21, 2009 states: “doing well except for morning pain
(stiffness etc from Ankylosing spondylosis) usually takes two – three hours to
work this off.”  Dr. Pocock referred the plaintiff to Dr. Jerry Tenenbaum
for potential management of his Ankylosing spondylosis. There is some reference
to X-Rays having been taken on September 14, 2009 and October 20, 2009,
but these appear to be limited to the plaintiff’s right shoulder, lumbar spine
and sacroiliac joints. This injury to the plaintiff’s right knee seems to have
healed within a month or so.

[78]        
The plaintiff was questioned by defence counsel about Dr. Pocock’s
clinical note of December 29, 2009. The plaintiff admitted that on December 22,
2009 he was a passenger in a motor vehicle which hit a rock face. But there is
no complaint by the plaintiff that he was injured, and no note of any findings
of injury with respect to that accident.

[79]        
In his report of July 10, 2009 the opinions expressed by Dr. Oliver
include the following:

a)    It is unlikely
that the plaintiff will require any further surgery to his right knee.

b)    There is only a
slightly increased risk that the plaintiff will develop arthritis in his right
knee.

c)     The plaintiff
could benefit from following an exercise program to regain further strength in
the muscles of his right leg, which he could do on his own (and no further
physical therapy or other treatment is recommended).

d)    The injuries
received by the plaintiff in the accident of February 13, 2007 did not affect
his pre-existing condition of Ankylosing spondylosis.

e)    The plaintiff
“was temporarily disabled due to the nature of the injuries and the treatment
for a period of six-nine months.”

f)      The
plaintiff’s period of disability “may have been extended due to the fact that
he did not follow an exercise program to restore the muscles at the right leg.”

[80]        
In his trial testimony, given by way of video deposition, Dr. Oliver
explained the condition of Ankylosing spondylosis. He described this condition
as being painful and physically disabling. Dr. Oliver expressed the
opinion that the plaintiff was already significantly disabled by Ankylosing
spondylosis, at the time of the accident on February 13, 2007.

Conclusion

[81]        
I find that, by the time of trial, the plaintiff had substantially
recovered from the injuries he sustained in the accident of February 13, 2007. There
is no medical opinion evidence which causally connects the plaintiff’s present
complaints to his injuries of February 13, 2007. Nor is there any evidence of
objective medical findings that confirm the plaintiff’s ongoing complaints of
pain in his knee. In these circumstances, I am not satisfied that the necessary
causal connection between the accident and the plaintiff’s present complaints
of physical pain has been proved. However, I do accept that the plaintiff is
still experiencing some intermittent psychological effects from the accident,
in the form of nightmares and fear of crossing the street. I find that these psychological
effects are diminishing, and should not persist for much longer. The evidence
does not establish a real and substantial possibility that these psychological
symptoms will persist well into the future.

What amount of damages should be awarded to the plaintiff for non-pecuniary
loss?

[82]        
The purpose of awarding damages for non-pecuniary loss is to compensate
the plaintiff for his pain and suffering, and loss of enjoyment of life. Counsel
have referred me to numerous cases in support of their respective positions as
to the proper range of damages within which the award in this case should fall.
I do not intend to identify or review these cases, because in my opinion there
are not sufficient similarities between those cases and the present case, to
provide substantial guidance. Moreover, I have not fully accepted the factual
theories advanced by either party. Counsel for the plaintiff argued that the
effects of the plaintiff’s injuries would continue to plague him “for years to
come.”  Counsel for the defendants submits that the plaintiff ought to have
fully recovered from his injuries within about a year after the accident and
argued that he had recovered by the end of September, 2009.

[83]        
An unusual feature of this case is that the plaintiff was suffering from
Ankylosing spondylosis long before the time of the accident, which was painful
and disabling for him. He also had a painful and debilitating shoulder injury. These
conditions were not aggravated by the accident but I find that they did
contribute significantly to difficulties in the plaintiff making a full
recovery from his serious knee injury. It is well settled that a defendant who
causes personal injury to a plaintiff must take the plaintiff as he finds him. The
plaintiff cannot be faulted for having pre-existing conditions which complicate
his recovery and extend the time required for recovery.

[84]        
I should say that I do not accept the defence submission that Dr. Oliver
had expressed the opinion “that the plaintiff should have recovered in 9 to 12
months.”  The opinion expressed by Dr. Oliver was that the plaintiff “was
temporarily disabled . . . for a period of 6-9 months.”  Dr. Oliver did
not say that the plaintiff should have recovered from the effects of his
injury, within that time period.

[85]        
Counsel for the plaintiff cited Stapley v. Hejslet 2006 BCCA 34. At
paragraph 46 of that judgment, the Court of Appeal sets out ten factors that
have a bearing on the amount of damages to be awarded for non-pecuniary loss. Having
regard to those factors (and the cases cited) in the light of the facts which I
have found, it is my opinion that the range of damages that applies to this
case is $30,000 to $50,000. As I see it, the award that would be just for this
injury, suffered by this plaintiff for the pain and suffering and loss of
enjoyment of life that he has experienced (and may continue to experience) the
proper award is $40,000.

The defence of failure to mitigate

[86]        
The defendants allege that the plaintiff failed to mitigate his damages
by failing to follow recommended treatment, namely, that he should do home
exercises to build up the quadriceps muscle in his right leg. The plaintiff
acknowledged that he was advised to continue with home exercises by his
physiotherapist. In his consult report of August 9, 2007, Dr. Gutmanis
states that he had encouraged the plaintiff “to continue with his present
protocol until he does recover full bulk, strength and endurance of his right
quadriceps musculature.”  The “protocol” at that time was physiotherapy and
pool sessions, as well as home exercises.

[87]        
The plaintiff testified that he attended for numerous physiotherapy
treatments between April 17, 2007, and September 28, 2007,
and that he worked hard and regularly to do the home exercises recommended by
the physiotherapist. The plaintiff described in some detail the kinds of
exercises he performed and the equipment that he used to do them. He said that
he continued to do these home exercises about three times a week, after the
physiotherapy sessions were ended. He said he wanted to continue with
physiotherapy once per week as recommended by the physiotherapist but that ICBC
refused to pay for these sessions and he could not afford them himself. He said
he could not afford to buy a gym membership either. The plaintiff said that,
after September 28, 2007, when the physiotherapy ended, he carried on
with his home exercises for another six or seven months. He testified that he
was able to use his landlord’s exercise bicycle for six months or more, after
the physiotherapy sessions ended. In cross examination, it was suggested to the
plaintiff that he had stopped exercising his right leg. The plaintiff denied
this, and said that he is still doing resistance exercises for his leg  with
the elastic bands.

[88]        
The defendants rely on the findings of Dr. Oliver that, on
July 10, 2009, the plaintiff’s right quadriceps measured 46
centimetres at mid-thigh compared to 48 centimetres mid-thigh in his left leg
together with this statement by Dr. Oliver near the end of his report:

 I believe his
disability may have been extended due to the fact that he did not follow an
exercise program to restore the muscles at the right leg.

[89]        
The defendants submit that the award for non-pecuniary damages should be
reduced significantly, by reason of the plaintiff’s failure to mitigate the
effects of his injuries.

[90]        
The plaintiff’s evidence that he did his home exercises regularly for
many months after the injury is confirmed by the evidence of Glen George. I
accept the plaintiff’s evidence on this point.

[91]        
The onus is on the defendants to prove the essential elements of the
defence of failure to mitigate. Each element must be proved on the balance of
probabilities, and the essential elements of this defence are:

a)    that a qualified
medical expert recommended that the plaintiff undergo a particular form of
treatment;

b)    that the
plaintiff failed or refused to take the recommended treatment although it was
available to him or her; and

c)     that the
plaintiff’s refusal or failure was unreasonable, in that if the plaintiff had
taken the recommended treatment, there is some likelihood that he or she would
have received substantial benefit from it; and the treatment would not expose
the plaintiff to significant risk.

See Janiak v. Ipolito [1985] 2 S.C.R. 146; Chiu
(guardian ad litem of) v. Chiu 2002 BCCA 618 at paragraph 57.

[92]        
I am not satisfied that the plaintiff failed or refused to continue with
the home exercise program recommended by Dr. Gutmanis and his
physiotherapist. I accept that the plaintiff made reasonable efforts to do his
home exercises as recommended. It must be remembered that the plaintiff was
suffering from debilitating pre-existing conditions which made it far more
difficult than it would have been, for a person in normal health. Secondly,
further weekly visits of physiotherapy after September 28, 2007, were
recommended by the plaintiff’s physiotherapist but not approved by ICBC. I am
satisfied that the plaintiff could not afford to pay for the full cost of
physiotherapy treatments on his own.

[93]        
I accept that the plaintiff has continued to do some, but certainly not
all, of the home exercises that were recommended for him. There is obviously a
possibility that, had he continued to do all of his home exercises, he may have
achieved a greater measure of recovery in a shorter time. But there is no
expert medical opinion to the effect that recovery would probably have occurred
if the plaintiff had continued to do all of his home exercises. There is only
the finding by Dr. Oliver that the plaintiff’s right quadriceps is smaller
than the left, and his opinion that the plaintiff’s period of disability “may
have been extended” by the plaintiff’s failure to follow a recommended exercise
program.

[94]        
In these circumstances, it is my opinion that the defendants have failed
to establish all essential elements of the defence of failure to mitigate. There
will be no reduction in the award of damages on this ground.

Special Damages

[95]        
The plaintiff claimed special damages of $140.70 for his travel expenses
to attend upon Dr. Oliver on July 10, 2009, for the independent
medical examination, and $880 for user fees for 44 physiotherapy sessions. The
plaintiff testified that he incurred and paid these expenses. No reason was
advanced on behalf of the defendants as to why these expenses should not be recovered.
Accordingly, I assess special damages in the amount of $1,020.70.

Summary

[96]        
I have assessed the plaintiff’s damages as being $40,000 for pain and
suffering and loss of enjoyment of life, and $1,020.70 for special damages
making a total of $41,020.70. Because of the apportionment of liability, I
order that the plaintiff shall recover 25% of those damages, namely,
$10,255.18.

Costs

[97]        
It seems to me that the plaintiff should recover 25% of his costs and
disbursements. It would appear that the plaintiff had sufficient reason for
bringing his action in the Supreme Court. The tariff items of costs is set as a
maximum of $6,600 by Rule 66(29) and I assume that counsel will be able to
settle costs without further intervention by the court. If that is not the case,
a date may be arranged with the trial scheduling manager, to speak to costs.

_____________________________

The Honourable Mr. Justice
Halfyard