IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100721

Docket: 42517

Registry:
Vernon

Between:

Justin Tyler
Hildebrand

Plaintiff

And

Kevin George
Musseau

Defendant

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Madam Justice Hyslop

Reasons for Judgment

[1]            
On May 11, 2007, the plaintiff and the defendant collided. The defendant
was driving a 4 x 4 truck and had three passengers. On the day and time of the
accident, the plaintiff was riding his dirt bike with one Percy Gaven. The
plaintiff suffered multiple injuries for which he seeks damages.

[2]            
The defendant and the Insurance Corporation of British Columbia (“ICBC”)
deny liability for the accident and the amount of damages sought by the
plaintiff.

[3]            
The defendant acknowledges that the plaintiff suffered the following
injuries because of the accident:

·      
a fractured right ankle which required surgery;

·      
a fractured right wrist which required surgery; and

·      
a fractured left femur which required treatment with a splint.

[4]            
In addition to the fractures, the plaintiff states that because of the
accident he suffered:

·      
multiple abrasions and contusions to his body; and

·      
soft tissue injuries, in particular related to his left shoulder,
posterior rib, back and neck.

Plaintiff’s Claims

[5]            
The plaintiff is seeking non-pecuniary damages, past loss of income,
loss of future earning capacity, future loss of income, cost of future care,
special damages and costs.

[6]            
The plaintiff seeks the following for damages:

Plaintiff’s Background

[7]            
The plaintiff was born November 2, 1985. At the time of the accident he was
21 years old and was employed as an auto body repair technician. At the time of
trial, the defendant was a journeyman auto collision repair technician. The plaintiff
was certified as a journeyman auto collision repair technician on September 16,
2008.

[8]            
At the age of six, the plaintiff was welding in his dad’s garage and by
the age of ten, was hammering out dents, painting vehicles and other repair
work. His father, Bruce Hildebrand, and his brother, Jeromy Hildebrand, are
both journeyman auto collision repair technicians.

[9]            
Prior to graduating from high school in 2004, the plaintiff started his
apprenticeship as an auto body technician in July of 2003.

[10]        
The plaintiff started his apprenticeship in his father’s shop known as
Custom Auto Body (“Custom”) and continued as an apprentice in that shop until
the end of 2005. He completed his apprenticeship with Armstrong Collision Ltd.
(“Armstrong Collision”) on April 10, 2006. By December of 2006, he had
sufficient hours to apply for his journeyman apprenticeship certificate. He
wrote his examinations for his journeyman certification. He finished at the top
of his class. The plaintiff did not send in his hours to receive his journeyman
certification as he hoped to enter a competition scheduled for April 2007.

[11]        
At the time of the accident, the plaintiff was hard-working, enjoyed his
chosen occupation and was in good health.

[12]        
The plaintiff started riding dirt bikes at the age of six. He has owned
several dirt bikes; all were four-stroke engines. On the day of the accident he
was riding a 2004 CRF 450 Honda, which he had purchased from Mr. Gaven for
$5,400.00. The plaintiff had been riding this motorcycle every other day for
approximately a month prior to the accident. In 2007, he had been up Vernon
Mountain at least a half a dozen times. After purchasing the motorcycle the
plaintiff installed new handle grips, radiator guards, front brake parts and
had it tuned.

[13]        
On May 11, 2007, Mr. Gaven was driving a similar motorcycle.

[14]        
The plaintiff described a four-stroke motorcycle engine as sounding
something like a Harley Davidson and a lawnmower. Mr. Gaven described a
four-stroke engine dirt bike as a low rumble, as if a big bear was running
through the woods.

[15]        
Since age 13, the plaintiff has frequented Vernon Mountain (also known
as Becker Mountain) and the vicinity of John Park Way Road (“John Park”) at
least 100 times. The vicinity of John Park is a common play area. On almost every
occasion that the plaintiff has been on Vernon Mountain, he has seen either
dirt bikes, quad riders, four wheel drive trucks and an occasional logging
truck.

[16]        
Mr. Gaven has ridden dirt bikes a lot; at least about 100 times. He had
ridden with the plaintiff at least a dozen times in 2007 and ridden John Park
prior to May 11, 2007. He stated that the purpose of riding on the logging road
and in particular John Park, was primarily to access dirt bike trails. Mr. Gaven
stated that the widest part of his dirt bike was 33 inches and that the
plaintiff’s is the same.

The Defendant

[17]        
The defendant was 23 at the time of the accident and was driving a 1980
4 x 4 truck which was 80 inches wide, not including the mirrors which appear to
extend a small distance. The defendant, his girlfriend and two other passengers,
were all seated in the bench-style seat of the cab of the truck. The truck was
fitted with three seat belts.

[18]        
The defendant had been in the area at Vernon Mountain prior to the
accident 30 or 40 times. He had passed the particular corner where the accident
happened 15 to 20 times.

[19]        
The defendant, on May 11, 2007, was prohibited by law from driving, had
smoked a marijuana cigarette that morning and the motor vehicle license which
he held was an “N” license (“novice”), the designation of which he had held for
three or four years.

Events Leading Up to
the Accident and the Accident

[20]        
On May 11, 2007, the plaintiff and Percy Gaven, on their dirt bikes,
left Mr. Gaven’s uncle’s residence located on Blackrock Road in Vernon, B.C. The
plaintiff and Mr. Gaven travelled to the end of Blackrock Road. At the end of
Blackrock Road they rode on trails and travelled single file to the repeater station
on Vernon Mountain with Mr. Gaven leading the way and the plaintiff following
behind him. Mr. Gaven entered John Park first, followed by the plaintiff. The
plaintiff and Mr. Gaven travelled abreast on John Park on the right hand side
of the road and in a southerly direction towards the accident scene. Mr. Gaven
remained on the farthest side of the right hand side of John Park with the
plaintiff beside him up to the accident site. It was approximately 6:20 p.m.
when the plaintiff and Mr. Gaven entered John Park.

[21]        
John Park is a forestry road and its surface is composed of hard packed
dirt with some loose gravel on it. For the most part, John Park has shoulders
that are approximately one foot wide on both sides of the road. John Park has
numerous corners to be negotiated. There are a lot of trees and bush near the
road.

[22]        
On May 11, 2007, it was a bright sunny dry day and John Park was dusty.

[23]        
The plaintiff was dressed in a full faced motor-cross helmet, goggles, a
jersey with elbow pads, chest protector and shoulder pads, gloves, padded
motor-cross pants and motor-cross boots.

[24]        
The plaintiff and Mr. Gaven were travelling on John Park between 40 to
50 kilometres per hour, travelling abreast, and approximately two feet apart.

[25]        
They intended on travelling a short distance on John Park and then
turning left onto a dirt bike trail in the bush. The accident occurred prior to
their reaching their planned destination.

[26]        
The plaintiff stated that prior to he and Mr. Gaven entering John Park,
they signalled each other that they would ride abreast. When Mr. Gaven was
presented with this evidence, he looked surprised. Mr. Gaven stated that he was
the first to enter John Park and went to the right, and that “is just how it
happened”. I conclude they did not signal each other. Mr. Gaven stated that his
position on John Park was farthest to the right. He held this position right up
to and at the time of the collision.

[27]        
The plaintiff stated that he and Mr. Gaven travelled a distance of less
than one kilometre and for a period of 45 seconds to one minute when the
accident happened. Mr. Gaven stated that they had been on John Park for three
to five minutes when the accident happened. Although the difference in their
evidence may seem significant, I find it irrelevant.

[28]        
In the southerly direction of John Park and in the vicinity of the
accident, on the right hand side (the west side of the road), there is a drop
off which is heavily covered in vegetation. On the east side of the road and in
the area of the accident there exists a shallow ditch. There are no lines on
the road. In the vicinity of the accident and at the site of the accident, the
shoulders are composed of grass, gravel and weeds.

[29]        
Just before the accident site and in the direction that the plaintiff
and Mr. Gaven were travelling, John Park is 18 feet wide, excluding the
shoulders. At the accident site, the road is 15 feet wide. As the plaintiff and
Mr. Gaven approached the accident site, there was a slight decline in the road
and they entered a right hand curve. The vision on the right hand side of the
road, the side on which the plaintiff and Mr. Gaven were travelling, was
obscured by a tree and a bush.

[30]        
On May 11, 2007, the defendant, together with his passengers, left the
defendant’s residence in Vernon, intending to leave town to relax. They travelled
in the defendant’s truck, headed for the area where John Park is located.

[31]        
The defendant proceeded to the top of the power lines on Vernon Mountain.
The time was between 5:30 and 6:00 p.m. The defendant and his passengers got
out of the truck and spent about 15 to 20 minutes there. They went down the
same road leading to the power lines and eventually turned on to John Park. They
were travelling in a northerly direction.

[32]        
Just before the accident site and in the northerly direction that the
defendant was travelling, John Park is 20 feet wide.

[33]        
The defendant stated that as he was travelling downhill there was a
curve sloping to his left. Before proceeding downhill, the defendant stated
that he changed the manual gearshift in his truck from third gear down to
second gear. He stated that the passenger-side tires of his truck were
following the grass line (shoulder) on his right hand side of the road. He
stated that the window on the driver’s side of his truck was rolled down two
inches. The defendant said that he did not hear dirt bikes in the vicinity of
the accident. Counsel for the plaintiff put the following questions and answers
(lines 603 – 606) from his examination for discovery which was held January 13,
2010:

Q         Your windows were open in the truck?

A          Cracked.

Q         Cracked as in?

A          They were open enough that air was getting
into the vehicle.

Q         You have indicated with your hands a distance
that looked about three inches?

A          Yes, a couple of inches.

Q         A couple of inches. Tell me about the sound
that you heard?

A          It was two dirt
bikes that sounded like they were held wide open. You could probably – – if you
were a couple of kilometers away, you could hear it.

[34]        
The defendant stated that his vision was obscured by a tree and bush. He
described it as a “blind corner.”  He stated that when he could see past the
tree, two motorcycles appeared riding abreast, following grooves in the road. The
defendant stated that he held the steering wheel as hard to the right as he
could. The defendant stated that Mr. Gaven went to his left and the plaintiff
went to his right. Both the plaintiff and the defendant hit the shallow ditch
on the defendant’s right hand side of the road. At first the defendant did not
know where the plaintiff was. Both the plaintiff and the plaintiff’s dirt bike
were in the ditch. Before determining where the plaintiff was, the defendant
backed his truck out of the ditch some 15 feet and into the middle of John
Park.

[35]        
Mr. Gaven’s evidence is that when he first saw the truck he was before
the apex of the corner. Both he and the plaintiff were side-by-side with the
plaintiff slightly behind him, but still in Mr. Gaven’s peripheral vision. They
were travelling about one foot apart, handlebar to handlebar, and driving
between 40 and 50 kilometres per hour as they approached the apex of the corner.
Mr. Gaven stated that he was as far to his right as he could be going into the
corner. Mr. Gaven’s evidence is that he observed the truck’s wheels projecting
on the side of the dirt and grass; that is the road and shoulder on Mr. Gaven’s
side of the road. Mr. Gaven stated there was very little shoulder in the area
that he was driving. He said everything happened in a “split second”. The truck
was on his right hand side of the road and passed him by a few inches on the
driver’s side. Mr. Gaven then turned his bike on an angle. He then heard a
crash.

[36]        
The plaintiff stated that the road is lower than the corner which banks
to the right. He stated that it was a blind curve. The plaintiff stated that as
he came into the corner, Mr. Gaven was on the right most edge of the road and that
he and Mr. Gaven were side-by-side and he was slightly behind Mr. Gaven. The
plaintiff stated that as he reached the apex of the corner, he was a little less
than a foot from Mr. Gaven and that they were travelling at a speed of between
40 to 50 kilometres per hour.

[37]        
The plaintiff said that the truck was three seconds away when he first
saw the truck. The plaintiff states that when he first saw the defendant’s
truck it was in the middle of the road as it crested the hill, and that the
defendant was cutting the corner to the defendant’s left side. He stated that
Mr. Gaven was on the right hand side of John Park at this time riding an
imaginary line dividing the road and shoulder. The plaintiff stated that when
he came to the apex of the corner he saw a truck coming down the middle of John
Park and coming into Mr. Gaven’s side of the road. He stated that the defendant’s
truck was on the hard-packed dirt on an imaginary line between the road and the
shoulder.

[38]        
The plaintiff said that he concluded that he was going to be hit by the
defendant’s truck. He stated that he could not move over to the right as Mr. Gaven
was riding there, and to his right and off the shoulder was an incline of bush
and trees. The plaintiff said that he saw the shallow ditch on the other side
of the road and headed towards it, intending to go around the defendant’s truck.
He said he was headed towards the ditch at a 45 degree angle. He stated he was
about halfway across the road when the truck hit him. The plaintiff and the
dirt bike landed in the ditch.

[39]        
There were a number of photographs entered as exhibits taken two days
after the accident. The plaintiff, the defendant and ICBC adopted the
photographs as an accurate depiction of the scene of the accident. They also
adopted a sketch of the scene of the accident and the measurements of the road
at and near the accident site to which I have referred.

[40]        
The photographs depict the northerly direction of John Park approaching
the site of the accident, as well as the southerly direction of John Park. The
photographs picture the curve in the road and the tree and bush that obscured
the vision of the plaintiff, the defendant and Mr. Gaven. The angle at which
the photographs were taken do not depict what was seen by the plaintiff and Mr.
Gaven as they drove their dirt bikes, nor what the defendant observed as he
drove his truck. However, the photographs and the sketch were useful in that
they showed the terrain, the blind corner, the road condition and the
shoulders.

[41]        
On cross-examination of two previous written statements: one given by
the plaintiff to the RCMP and the other to the third party’s adjuster, the
plaintiff made no mention of the defendant cutting the corner. In his statement
to the adjuster and adopted at his examination for discovery, he stated that
when he first saw the defendant’s truck it was five to six car-lengths away. He
stated that he observed the truck’s tire on the edge of the driver’s left hand
side of the road. In his evidence at trial, the plaintiff drew a red mark, very
near some skid marks on a photograph (exhibit “A”, tab 2, page 9). Above the
red mark, the plaintiff placed further red marks as to where he first saw the
defendant’s truck located as it proceeded down the middle of the road.

Liability

Positions

[42]        
The plaintiff argues that the defendant is 100% responsible for the
accident. He argues that the defendant was travelling on the wrong side of the
road. When the plaintiff saw the defendant’s truck, the plaintiff had no choice
but to take evasive action and head towards the left hand side of the road,
attempting to go around the truck towards the shallow ditch. The plaintiff
argues that he can invoke the “agony of the moment” rule set out in Wormell
v. Hagen, 2009 BCSC 1166 at para. 36:

The standard of care applied to individuals in emergency
situations is not one of perfection. The law in such circumstances was
explained in Walls v. Mussens Ltd. et al (1969), 11 D.L.R. (3d) 245 at 247-48
(N.B.C.A.):

… I think the plaintiff is entitled to invoke the
"agony of the moment" rule as an answer to the allegation of
contributory negligence made against him. The rule is stated by Mr. Glanville
Williams in his work Joint Torts and Contributory Negligence at p.
360-1:

It is well settled that where a sudden emergency arises
through the fault of the defendant, the plaintiff who acts reasonably in an
attempt to extricate himself is not guilty of contributory negligence merely
because he unintentionally aggravates the situation. Also, where the plaintiff
is compelled to make a quick decision in the ‘agony of the moment’ he is not
expected to take into account all the considerations that a calmer appraisal of
the situation might present to the mind. Perfect foresight and presence of mind
are not required. This rule, sometimes called the ‘agony of the moment’ rule,
is merely a particular application of the rule that the standard of care
required of both plaintiff and defendant is that of a reasonable man.

The Law of Torts, 3rd ed., by J.G. Fleming contains
the following statement at p. 247:

On the other hand, a person’s conduct in the face of a
sudden emergency, cannot be judged from the standpoint of what would have been
reasonable behaviour in the light of hind-knowledge and in a calmer atmosphere
conducive to a nice evaluation of alternatives. A certain latitude is allowed
when in the agony of the moment he seeks to extricate himself from an emergency
not created by his own antecedent negligence. The degree of judgment and
presence of mind expected of the plaintiff is what would have been reasonable
conduct in such a situation, and he will not be adjudged guilty of contributory
negligence merely because, as it turns out, he unwittingly took the wrong course.

The rule although applied originally in Admiralty cases, now
has general application where danger to life and limb or to property is brought
about by the negligence of the defendant: see The "Bywell Castle"
(1879), L.R. 4 P.D. 219 per Brett, L.J., at p. 226, and Cotton,
L.J., at p. 228; Rowan v. Toronto Ry. Co. (1899) 29 S.C.R. 717,
and Tatisich v. Edwards, [1931] 2 D.L.R. 521, [1931] S.C.R. 167.

The test to be applied in circumstances such as those as in
the case at bar is, in my opinion, not whether the plaintiff exercised a
careful and prudent judgment in doing what he did, but whether what he did was
something an ordinarily prudent man might reasonably have done under the stress
of the emergency.

[43]        
The plaintiff argues that had the defendant been travelling on the
proper side of the road, there would have been almost two feet in which the
plaintiff and Mr. Gaven could pass the defendant.

[44]        
The defendant claims the plaintiff was on the wrong side of the road and
this caused the accident. He further stated that he adopted the arguments of ICBC.

[45]        
The defendant and ICBC claim that the collision between the plaintiff
and defendant occurred on the defendant’s right hand side of the road and off
the travelled section of the road. The defendant and ICBC rely not only on the
defendant’s evidence, but also where the debris from the motorcycle was located
in the ditch, as well as certain tire marks which the defendant’s truck made
when, after the collision, the defendant backed up his truck out of the ditch
and on to John Park.

[46]        
In the alternative, the defendant and ICBC argue that if the defendant
is to be found travelling on the wrong side of the road, the cause of the
accident was the plaintiff’s conscious decision to ride side-by-side with Mr. Gaven
when it was unsafe to do so given the nature of the road.

[47]        
The defendant argues that the plaintiff was contributorily negligent in
driving his motorcycle side-by-side with Mr. Gaven. The defendant argues that
contributory negligence should be assessed equally between the plaintiff and
defendant in accordance with the Negligence Act, R.S.B.C. 1996, c. 333:

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.

(2) Despite subsection (1), if, having regard to all the
circumstances of the case, it is not possible to establish different degrees of
fault, the liability must be apportioned equally.

(3) Nothing in this section
operates to make a person liable for damage or loss to which the person’s fault
has not contributed.

[48]        
The defendant and ICBC rely on some the following sections of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318 [MVA]:

Driver on right

150 (1) The driver of a vehicle must confine the course of
the vehicle to the right hand half of the roadway if the roadway is of
sufficient width and it is practicable to do so, except

(a)        when
overtaking and passing a vehicle proceeding in the same direction,

(b)        when
the right hand half of the roadway is closed to traffic while under
construction or repair,

(c)        on a
highway designated and marked by signs for one way traffic,

(d)        if
necessary when operating snow removing equipment, or

(e)        if

(i) the movement of a vehicle, or
combination of vehicles, is permitted by and is done in conformity with the
terms of the oversize permit issued under the Commercial Transport Act,
and

(ii) the width of a vehicle, or
combination of vehicles, or the width of a load on the vehicle makes the
operation of the vehicle or combination of vehicles on the right hand half of
the roadway unsafe.

(2) The driver of a vehicle proceeding at less than normal
speed of traffic at the time and place and under the conditions then existing
must drive the vehicle in the right hand lane then available for traffic, or as
closely as practicable to the right hand curb or edge of the roadway, except
when overtaking and passing a vehicle proceeding in the same direction, or when
preparing for a left hand turn at an intersection or into a private road or
driveway.

(3) The driver of a vehicle passing around a rotary traffic
island must drive the vehicle to the right of the island.

…

Passing when meeting
vehicle

154 (1) The driver of a vehicle must drive the vehicle
on the right hand side of the roadway when meeting another vehicle that is
moving.

(2) The driver of a vehicle on a highway that has a width for
only one line of traffic in each direction must, when meeting another vehicle
that is moving, drive the vehicle so that the other vehicle is able to travel
in at least 1/2 of the main travelled portion of the highway as nearly as
possible.

…

Motorcycles

194 (1) A person operating a motorcycle must ride only
astride the regular seat attached to it.

(2) A person, other than the operator, must not ride on a
motorcycle unless

(a) it is designed and equipped to
carry more than one person, and

(b) the other person rides

(i) astride the permanent and
regular seat if designed for 2 persons,

(ii) astride another seat firmly
attached to the motorcycle behind the seat occupied by the operator, or

(iii) on or in another seat firmly
attached to one side of the motorcycle.

(3) A person who is operating a motorcycle must not permit
another person to ride on it in contravention of subsection (2).

(4) Except when overtaking and
passing other motorcycles, more than 2 operators of motorcycles must not
operate their motorcycles side by side in the same direction in the same
traffic lane.

[49]        
As Mr. Justice Wood stated at para. 20 of Christie (Guardian ad litem
of) v. Insurance Corp. of British Columbia (1993), 79 B.C.L.R. (2d) 370, 28
B.C.A.C. 262, breach of a statute will not necessarily determine negligence:

From the balance of his reasons, I draw the conclusion the
trial judge equated breach of the statute with negligence, apparently because
s. 184(2) of the Motor Vehicle Act is cast in what he described as mandatory
terms. That, of course, was an error. In H.M.T.Q. v. Saskatchewan Wheat Pool,
[1983] 1 S.C.R. 205, Dickson, J. (as he then was) concludes at pp. 225-6 of the
report:

Breach of statute, where it has an effect upon civil
liability, should be considered in the context of the general law of negligence.
Negligence and its common law duty of care have become pervasive enough to
serve the purpose invoked for the existence of the action for statutory breach.

 It must not be forgotten that the other elements
of tortious responsibility equally apply to situations involving statutory
breach, i.e. principles of causation and damages. To be relevant at all, the
statutory breach must have caused the damage of which the plaintiff complains.
Should this be so, the violation of the statute should be evidence of
negligence on the part of the defendant.

[50]        
Justice Wood then made the following statement regarding contributory
negligence at para. 24:

But this does not end the matter. It is clear from the
authorities that a want of care in his own interest is a factor in determining
apportionment of fault. As was stated in Nance v. British Columbia Electric
Railway Company Ltd., [1951] A.C. 601 (P.C.) at p. 611-12:

 But when contributory negligence is set up as a
defence, its existence does not depend on any duty owed by the injured party to
the party sued, and all that is necessary to establish such a defence is to
prove to the satisfaction of the jury that the injured party did not in his own
interest take reasonable care of himself and contributed, by this want of care,
to his own injury.

Discussion

[51]        
The plaintiff and the defendant were familiar with the area and John
Park. The plaintiff had, for a number of years, ridden in the area of John Park
and had encountered trucks, quad riders, dirt bikes and the occasional logging
truck. The defendant had driven on John Park and through the area where the
accident occurred multiple times.

[52]        
The plaintiff stated that he and Mr. Gaven were riding abreast to avoid
having their vision blurred by dust and debris which would have flown at them had
they ridden single file. The plaintiff stated that he also wanted to travel side-by-side
with Mr. Gaven so that they would turn off John Park to the dirt bike trail at
the same time. The plaintiff deliberately made this decision. He knew the road
was narrow and that there was a blind corner in front of him.

[53]        
The plaintiff’s version of the events seems confusing and at times
contradictory. He attempts to describe the movements of the truck just prior to
the accident despite the fact that his view was obstructed. In his evidence and
statements, he gave different versions as to the distance the defendant was
away from him when he first saw the truck and where the defendant was located
on the road.

[54]        
The plaintiff could not move farther to the right as he would have hit
Mr. Gaven, or gone down the bushy embankment. The plaintiff’s only choice was
to go to the left and try to drive around the truck.

[55]        
I find that the defendant’s truck entered the ditch at an angle because
the defendant backed his truck out of the ditch 15 feet and on to John Park.
This is shown in pictures of the accident scene. Had he been on the right hand
side in his lane, he would have entered the shallow ditch straight ahead.

[56]        
The defendant was aware that there were dirt bikers in the area because
he could hear them. There was no evidence before me as to when the defendant
heard the dirt bikers or whether the motorcycles he heard were those of the
plaintiff and Mr. Gaven. The evidence of Mr. Gaven was uncontradicted as to the
location of the defendant’s truck when he saw it, and that the truck passed him
on the driver’s side within a few inches of where he was driving his dirt bike.

[57]        
I find that at the site of the accident, had the plaintiff been
travelling on the right hand side of John Park, close to the shoulder, there
would have been about two feet in which the plaintiff and the defendant could
have passed each other. Considering the circumstances this is a small distance.

[58]        
The defendant’s truck passed Mr. Gaven on the defendant’s driver’s side,
passing Mr. Gaven by a few inches. I find that the defendant hit the plaintiff
who was trying to avoid being hit by the truck.

[59]        
The plaintiff and Mr. Gaven were entitled to ride side-by-side under s.
194(4) of the MVA. This does not mean that the plaintiff should persist
on riding side-by-side when it was apparent he could not see oncoming traffic
and the road was narrow on a blind corner.

[60]        
At the most, driving side-by-side allowed only a maximum of two feet for
the dirt bike riders and the truck to pass. This required the truck to be
driving on the line between the road and the shoulder and the dirt bikers
travelling as close to the line between their side of the road and the
shoulder.

[61]        
The plaintiff chose to drive side-by-side so as to avoid encountering
debris and meet up with Mr. Gaven at the turn off to the dirt bike trail. He
deliberately made this decision. He knew there was a blind corner in front of
him. He knew the road was narrow and, as stated earlier, he knew that it is
reasonable to assume that he would encounter other vehicles.

[62]        
The fact that the defendant had a marihuana cigarette in the morning and
was prohibited from driving is a factor that I do not take into consideration. There
was no evidence before me that these factors related to the cause of the
accident.

[63]        
I do not accept the defendant’s version of the accident. Had he been on
his right hand side of the road, he probably would have avoided the accident. I
believe that he probably was trying to drive to his right hand side of the
road, but only after he saw the plaintiff and Mr. Gaven. I also find that
before the accident the defendant heard motorcycles. I cannot find that hearing
them would determine their location.

[64]        
The defendant stated that he saw the plaintiff and Mr. Gaven driving in grooves
in the road just before he hit the plaintiff. Neither the defendant nor ICBC asked
the plaintiff or Mr. Gaven if they were driving in grooves. The pictures, taken
two days after the accident, show no grooves.

[65]        
The plaintiff was hit approximately in the middle of John Park. When
facing the truck, the damage to the defendant’s truck’s hood on the top and the
left side of the bumper was also damaged, as was the light almost directly on
top of it. The damage to the grill was also on the left hand side.

[66]        
I prefer the evidence of Mr. Gaven over the plaintiff and the defendant
where there is contradiction. Mr. Gaven said that as he drove into the corner
where the accident took place he saw the truck approaching. He placed a green
“X” at the spot where he first saw the truck (exhibit “A”, tab 2, photograph
#8). This spot is located before what was described by the plaintiff as the
apex of the curve. At the “X”, that is the green “X,” Mr. Gaven saw the truck’s
wheels on the edge of the grass and dirt shoulder on Mr. Gaven’s right hand
side. The truck (the driver’s side) passed Mr. Gaven by a distance of a few
inches. Mr. Gaven stated it was all he could do to clear the truck and avoid colliding
with it.

[67]        
I accept Mr. Gaven’s evidence that everything happened in a “split
second”. The plaintiff and Mr. Gaven probably saw the defendant’s truck at
about the same time. Mr. Gaven’s evidence was that the truck missed hitting him
by a few inches which places the plaintiff on the right hand side of the road
being travelled by the plaintiff and Mr. Gaven, who just before the accident
were about a foot or less apart. Mr. Gaven, in giving his evidence, was direct
and did not speculate as to what did or did not happen.

[68]        
The plaintiff argues that I ought to draw an adverse interest against
the defendant for failure to call the passengers that were in his truck on May
7, 2007. It is open for the plaintiff to issue subpoenas for those witnesses. I
am not prepared to draw an adverse inference.

Decision – Liability

[69]        
The defendant owed the plaintiff a duty of care. The defendant was
negligent in that he drove on the wrong side of a narrow road coming into a
blind corner, where his vision was obstructed by a tree and a bush. The defendant
was familiar with this area and the site of the accident. At the time he was on
John Park he had heard motorcycles. The negligence of the defendant is
connected to the injuries suffered by the plaintiff in the accident.

[70]        
This deliberate act by the defendant created a risk to which the
plaintiff was required to respond.

[71]        
The defendant, by driving on the wrong side of the road, made a marked
departure from the rules of the road and in particular the MVA, and in
doing so breached the standard of care.

[72]        
The next question is: was the plaintiff contributorily negligent?

[73]        
Mr. Justice Groves in Aberdeen v. Langley (Township), 2007 BCSC
993 stated:

[58] The B.C. Court of Appeal established in Ottosen
v. Kasper (1986), 37 C.C.L.T. 270 (B.C.C.A.) that the apportionment of
fault under section 1 of the Negligence Act should be based on
the weight of fault that should be attributed to each of the parties, not on
the weight of causation. Lambert J.A. based this conclusion on the wording of
the Negligence Act, which speaks of "fault," and
equated fault with blameworthiness. This approach to apportionment was
subsequently confirmed in Cempel, supra, as follows at
paragraph 19:

… 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.

…

[60] Although assessing the relative blameworthiness
of the parties is the correct approach, there is some difficulty in quantifying
that concept. In this regard, the words of Lambert J.A. in Cempel,
supra, at paragraph 24 are instructive:

In the apportionment of fault there must be an assessment of
the degree of the risk created by each of the parties, including a
consideration of the effect and potential effect of occurrences within the
risk, and including any increment in the risk brought about by their conduct
after the initial risk was created. The fault should then be apportioned on the
basis of the nature and extent of the departure from the respective standards
of care of each of the parties.

[61] Finch J.A. (as he then was) expanded upon the
concept of relative fault in Alberta Wheat Pool v. Northwest Pile Driving
Ltd. (2000), 80 B.C.L.R. (3d) 153, 2000 BCCA 505 at paragraph 46 as
follows:

Fault or blameworthiness evaluates the parties’ conduct in
the circumstances, and the extent or degree to which it may be said to depart
from the standard of reasonable care. Fault may vary from extremely careless
conduct, by which the party shows a reckless indifference or disregard for the
safety of person or property, whether his own or others, down to a momentary or
minor lapse of care in conduct which, nevertheless, carries with it the risk of
foreseeable harm.

[62] Thus, fault is to be determined by assessing the
nature and extent of the departure from the standard of care of each of the
parties. Relevant factors that courts have considered in assessing relative
degrees of fault were summarized by the Alberta Court of Appeal in Heller
v. Martens, supra, at paragraph 34 as follows:

1.The nature of the duty owed by the tortfeasor to the
injured person …

2.The number of acts of fault or negligence committed by a
person at fault …

3.The timing of the various negligent acts. For example, the
party who first commits a negligent act will usually be more at fault than the
party whose negligence comes as a result of the initial fault …

4.The nature of the conduct held to amount to fault. For
example, indifference to the results of the conduct may be more blameworthy …
Similarly, a deliberate departure from safety rules may be more blameworthy
than an imperfect reaction to a crisis…

5.The extent to which the conduct breaches statutory
requirements. For example, in a motor vehicle collision, the driver of the
vehicle with the right of way may be less blameworthy …

[Authorities omitted.]

See also Vigoren v. Nystuen, supra, at
paragraph 90 (summarizing these same factors).

[63] Many of the above-noted factors are discussed in
Chiefetz, Apportionment of Fault in Tort, supra, at pp. 102-104.
Considering that, I conclude it would be appropriate to add the following as
relevant factors:

6.the gravity of the risk created;

7.the extent of the opportunity to avoid or prevent the
accident or the damage;

8.whether the conduct in question was deliberate, or unusual
or unexpected; and

9.the knowledge one person had or should have had of the
conduct of another person at fault.

[74]        
I reject the defendant’s argument that I should find that the plaintiff
and defendant were equally responsible for the accident as the impact occurred
in approximately the centre of John Park.

[75]        
Although the impact of the truck and motorcycle occurred approximately
in the middle of this narrow road, it is the actions of the defendant and the
plaintiff, before the actual collision occurred, that determine the
blameworthiness of each of them.

[76]        
The plaintiff purposely drove side-by-side with Mr. Gaven and at least
within one foot of him. He knew that the road was narrow and that the vision
beyond the corner was obstructed by a tree and bush.

[77]        
His reason for driving side-by-side with Mr. Gaven was a choice he made.
Prior to entering this corner, the plaintiff should have driven behind Mr. Gaven
and could have driven behind by such a distance to avoid dust and debris.

[78]        
The plaintiff argues that his movements in travelling across the road
were made in the “agony of the moment.”  Based on this, the plaintiff argues
that he should be relieved of any finding against him for contributory
negligence. Although it was the defendant’s negligent act in driving on the
wrong side of the road that caused the plaintiff to take the evasive action
that he took, it was his decision to ride side-by-side with Mr. Gaven that put
the plaintiff in the situation in which he found himself. The “agony of the
moment” rule is not open to the plaintiff as a defence to contributory
negligence.

[79]        
I have concluded that the defendant’s departure from the standard of
care was far greater than that of the plaintiff. The defendant, driving on the
wrong side of the road, created a far greater risk than the plaintiff riding
side-by-side to the right of the centre of John Park given the narrow road and
the plaintiff’s visual limitations.

[80]        
As a result, I have concluded that liability should be apportioned 90%
to the defendant and 10% to the plaintiff.

After the Collision

[81]        
The plaintiff recalls his body tumbling and landing in the ditch. Initially,
the plaintiff thought he would die. When he finally caught his breath, he
realized he was not going to die. He rolled his upper body to the left. His
neck and shoulder were sore. The plaintiff moved his right and left arm. He
picked up his left leg and concluded his knee was swollen. His right leg
flopped over. He stated that at the time he thought “he’d lucked out.”

[82]        
The plaintiff became aware that Mr. Gaven, as well as others, were
present. The plaintiff recalls Mr. Gaven taking off his helmet. The plaintiff
could not stand and,  after two attempts, with the help of Mr. Gaven, the
defendant and the defendant’s passengers, the plaintiff was loaded into the
front seat of the defendant’s truck. The plaintiff said he was in severe pain. The
defendant’s girlfriend was seated in the cab of the truck and helped support
the plaintiff’s leg. The plaintiff’s motorcycle was loaded on to the
defendant’s truck and the other two passengers rode in the truck’s box.

[83]        
The plaintiff, who had a cell phone around his neck, telephoned his
brother, Jeromy, and asked him to meet him at the hospital. This telephone call
was made at 6:34 p.m.

[84]        
On the trip to the hospital, the plaintiff described the defendant as
distraught and punching the steering wheel. During this time, the plaintiff
learned that the defendant was prohibited from driving. As they drove to the
hospital, the defendant was telephoning various people asking if they would say
that they were driving at the time of the accident. The defendant asked the
plaintiff if he could find someone to drive him to the hospital, suggesting to
the plaintiff that perhaps the plaintiff’s father would.

[85]        
The plaintiff was able to describe in detail the route taken by the
defendant to transport him to the hospital, which included leaving the two
passengers who were in the back of the truck at the defendant’s residence,
which was located just behind the courthouse in Vernon.

[86]        
During the drive to the hospital, the defendant stated the plaintiff was
moaning and groaning with pain.

[87]        
The plaintiff’s brother, Jeromy, and Jeromy’s wife, Leanne, met him at
the hospital. The plaintiff was placed in a wheelchair with his legs on the
ground. The plaintiff said it felt as if the bones in his right leg were moving
against each other

[88]        
Once in the hospital, the plaintiff said he became quite shaky and had
difficulty answering the doctor’s and nurses’ questions. As he was being placed
in a bed, he again felt the bones in his right leg moving against each other. The
plaintiff said he was hooked up to oxygen and recalls passing out. When he
awoke, his clothes were cut off him and he recalls being given drugs which
caused him to laugh and then pass out.

[89]        
The next event the plaintiff recalls is a nurse and doctor nudging him
on the x-ray table. He fell asleep and when he awoke in a waiting room, his
legs were on the pillows and his right arm was in a splint with a tensor
bandage.

[90]        
While lying on the bed, the plaintiff became aware that his neck was
stiff and his upper body sore when he repositioned his body. He said he
attempted to bend his leg, but this resulted in pain. He said his right wrist
was painful. He said he was hungry.

[91]        
The next morning he could not move because his neck, back, ribs, and
abdomen were bruised and sore. He said his tongue was swollen and that he
recalled, as he lay in the ditch at the place of the accident, that he spit out
chunks of teeth. He recalls receiving another shot of morphine and then passing
out.

[92]        
The following day, Dr. O’Brien, an orthopaedic surgeon operated on the
plaintiff. The defendant recalls speaking to Dr. O’Brien.

[93]        
The next thing the plaintiff recollects is waking up in a hospital room
with his right arm casted from its elbow to its fingers, his left leg in a
splint from his pelvis to his foot and his right leg in a splint or bandage. By
late Sunday or Monday, his left leg was in a Zimmer or straight-leg splint. This
apparatus had two metal rods to hold the leg with Velcro straps. His right leg
below the knee was a plaster splint with a tensor bandage.

[94]        
After surgery, the plaintiff had intravenous morphine for his pain which
he received on demand by pressing a button. He was also prescribed an
antibiotic. By Wednesday of that week, his pain medication was Oxycodin, by
Thursday or Friday Tylenol 3 was prescribed for the pain. These various pain
medications had some physically uncomfortable results for the plaintiff.

[95]        
While in hospital, he trained to move to a commode or a bed and operate
a one-armed wheelchair.

[96]        
On May 17, 2007, the plaintiff was discharged from hospital to his
parent’s home where he convalesced until June 21, when his parents left on a planned
European trip. The plaintiff’s sister then came from Edmonton, Alberta to
provide care for the plaintiff for a period of about one week.

[97]        
After the plaintiff’s sister left, the plaintiff returned to his own
home together with his brother and his brother’s wife, Leanne, who looked after
him until July 13, 2007, when the plaintiff’s cast came off. He was able to
remain in his home in the company of a male roommate.

[98]        
The plaintiff said that during his rehabilitation the muscles in his leg
were causing him pain for which he was prescribed muscle relaxants.

[99]        
After the cast came off, he found his balance was poor and his feet were
tender. He used the wheelchair his father put together for him, graduating to
crutches and then a cane. He stopped using a cane ten months after the
accident.

[100]    
The defendant had numerous appointments with his orthopaedic surgeon,
Dr. O’Brien. The plaintiff started physiotherapy with Paul Saunders in late
July of 2007. He had treatments from two different massage therapists.

[101]    
After his discharge from hospital, the plaintiff stated he had
difficulty with his memory and concentration, which became apparent when he was
reading a book. He also had difficulty with sleeping. He found that the cast on
his arm was itchy and that the pins in his wrist would catch on the cast making
the skin tear.

[102]    
On June 27, 2007, Dr. O’Brien pulled out the percutaneous pins from the
plaintiff’s right wrist.

[103]    
On July 11, 2007, x-rays revealed that the plaintiff’s fractures in his
wrist, left knee and right ankle were healed.

[104]    
The plaintiff resumed driving in September of 2007.

[105]    
On December 17, 2008, the plaintiff had further surgery. Dr. O’Brien removed
the hardware (plates and screws) from his right ankle. The surgery took place
at the Vernon Jubilee Hospital.

[106]    
The plaintiff returned to work on January 14, 2008; eight and a half
months after the accident. His employment insurance had run out. The plaintiff’s
return to work was gradual and within approximately six months he was working
full-time.

[107]    
Prior to the accident, the plaintiff weighed 210 lbs. Three months after
the accident, the plaintiff weighed 175 lbs. At one point in time, after the
accident, his weight was as high as 235 lbs., and at the time of trial the
plaintiff weighed approximately 225 lbs.

Activities of the Plaintiff – Before and After the Accident

[108]    
Before the accident, the plaintiff had two passions: dirt biking and
working out at the gym. His purpose in attending the gym was for fitness and
body building. Prior to the accident, the plaintiff attended the gym for about
13 to 14 months every day for two and a half hours, rarely missing a day.

[109]    
Before the accident, the plaintiff enjoyed snowmobiling, waterskiing,
wake boarding, mountain biking, swimming, basketball, beach volleyball and
hiking.

[110]    
The plaintiff referred to boating, waterskiing and wake boarding as occurring
a couple of times a year. He was an occasional swimmer. He hiked around Kal
Park. The plaintiff recalled a hike he took to Revelstoke in 2006. This required
him to hike from an elevation of 6,000 to an elevation of 9,000 feet.

[111]    
The plaintiff was examined by Dr. Richardson, whose opinions I will
refer to later in these reasons. Dr. Richardson is of the opinion that the
plaintiff ought:

…to avoid high impact pivot
turn type activities if possible and for fitness be engaged in non-impact-type
activities such as swimming, cycling and using the elliptical trainer etc. for
fitness.

[112]     Of the
activities that the plaintiff stated he participated in, there are a number he
may have to avoid. He said he tried snowmobiling in 2008, without success, and
he found the position he had to be in aggravated his knee and back. He tried
snowboarding in 2008 two or three times, but found his ankle sore from the
twisting motion of the snowboard. Jumping, as in beach volleyball and
basketball, as well as running or jogging, he stated aggravates his knee and
ankle.

[113]     He feels
that there is not enough strength in his ankle to participate in wakeboarding
or waterskiing.

[114]     He
describes mountain bike riding for pleasure aggravates his left knee after
riding for a distance.

[115]     The
defendant returned to the gym in August of 2009, and eventually increased his
attendance and time at the gym, so at the time of trial he was attending the
gym three to four times a week.

[116]     The
plaintiff stated that he no longer dirt bikes because he has difficulty with
his shoulder and back when bent over his dirt bike. He is now riding a street
bike to the gym.

The Plaintiff’s Employment Prior to the Accident

[117]     At the
time of the accident, the plaintiff was working for Armstrong Collision as a journeyman
collision technician. Upon completing his apprenticeship, the plaintiff started
working for Armstrong Collision in April of 2006, Monday to Friday, 8 a.m. to 5
p.m. His responsibilities were to repair damaged vehicles. Each job at Armstrong
Collision had an estimate as to how many hours it would take to complete it. As
an example, if a job had an estimate of four hours of work, but it took only
two hours for the worker to complete it, the worker was paid for the four
hours. It operated in the opposite fashion that if it took the worker six hours
to complete, the worker received only four hours. In the event the work had not
been completed properly and had to be brought back, the worker would suffer the
loss of hours to redo the work. This is the basis on which the plaintiff was
paid at Armstrong Collision.

[118]     The
plaintiff’s hourly rate with Armstrong Collision was $23.00 per hour, and later
$25.00 per hour in 2007. The plaintiff received a bonus of $1.50 per hour per
pay period for hours that he attained above 106 hours per two-week pay period. In
addition, the plaintiff received a tool allowance of 25¢ per hour to an annual
maximum of $500.00, payable at the end of the year. In addition, the plaintiff
received vacation pay and statutory holiday pay. The calculation of the number
of hours for which the plaintiff was paid at Armstrong Collision was not based
on the actual number of hours worked.

[119]     Christopher
Brian Gordie, the manager at Armstrong Collision, gave evidence. He confirmed
the manner in which the plaintiff was paid when he worked at Armstrong
Collision in 2007.

[120]     Mr. Gordie
confirmed that the plaintiff was paid in excess of 250 hours per month. He
stated that the plaintiff and some of the other auto collision repair
technicians at Armstrong Collision were part of a higher paid group.

[121]     Armstrong
Collision issued a T4 in the name of the plaintiff for the year 2007 in the
amount of $31,958.80, which were the plaintiff’s earnings up to the date of the
accident.

[122]     Mr. Gordie
stated that Armstrong Collision would re-hire the plaintiff. At the time when
the plaintiff was prepared to return to his employment after the accident,
there were no openings at Armstrong Collision.

Past Income Loss

[123]     The
defendant and third party concede a gross income loss of $58,280.00. The
plaintiff is seeking more.

[124]     The
plaintiff is seeking his loss of income for the period of eight and a half
months before he returned to work. He seeks a loss of income during his
graduated return to work which was for a period of six months, as well as
losses up to the date of trial.

[125]     In
addition, the plaintiff is seeking his reduced billable hours. The plaintiff calculates
his average monthly billings before the collision at Armstrong Collision was 259.4
hours per month in the year 2007. Based on that calculation, the plaintiff
concludes that his income up to the date of trial was reduced by 32.8%.

[126]     On January
14, 2008, the plaintiff went back to work as a journeyman auto collision
technician. Over the next six months the plaintiff worked for Custom, a business
owned by the plaintiff’s parents, Bruce and Tracy Hildebrand. During this six
months, Custom contracted with Monoshee Auto Body (1979) Ltd. (“Monoshee”). During
this six months, the plaintiff, the plaintiff’s father and the plaintiff’s
brother, Jeromy, worked at Monoshee as subcontractors employed by Custom. During
this period, the plaintiff stated he received $19,872.03 from Custom. He stated
that the hourly rate with Custom was $26.54 per hour.

[127]     Starting
in July of 2008, Jeromy and the plaintiff were directly employed by Monoshee. The
plaintiff’s father was not.

[128]     The
evidence before the court for this period of the plaintiff’s earnings is described
by the plaintiff as a spreadsheet. In fact it is a summary of the amounts the
plaintiff received from Custom in particular months. He obtained this
spreadsheet from his mother who at that time was the bookkeeper for Custom.

[129]     The
plaintiff produced Custom invoices (numbers deleted) showing the date, the
number of hours for which the plaintiff was paid, the amount paid and his name
“Justin”. On each invoice are a number of redactions. No explanation was given
for these redactions. The total of the invoices add up to $19,872.03. The
plaintiff in filing his income tax return took no deductions as a self-employed
person. While employed by Custom he was not paid vacation pay or statutory
holiday pay.

[130]      The
plaintiff’s evidence is that when he initially went back to work in the first
two to three weeks he worked two to four hours per day. Within a month from his
return to work, the plaintiff stated he worked 6 hours per day and by July of
2008 he worked 8 hours per day. After July of 2008, the plaintiff stated that
when he was aching or in pain from his injuries, he would take an hour or two
off in the afternoon.

[131]     The
plaintiff’s parents and the plaintiff’s brother, Jeromy, gave evidence for the
plaintiff at this trial. In their evidence, none of these witnesses explained
the relationship between Monoshee and Custom, the basis of the invoices and
what information Custom had from Monoshee in order to pay the plaintiff the
amounts the plaintiff received from Custom. Jeromy Hildebrand gave evidence
generally of the plaintiff’s return to work as to limited duties and his
observations of the plaintiff while working at Monoshee. No one was called from
Monoshee to explain the relationship between Monoshee and Custom, or explain
the terms of employment of the plaintiff with Monoshee after July of 2008, and
the time that the plaintiff was at work or not at work.

[132]     Based on a
calculated loss of 32.8%, the plaintiff’s claim a loss of income to date of
trial of $91,297.01. Of that amount the defendant and third party acknowledge
$58,280.00 for the wage loss in 2007 and 2008.

[133]     Monoshee’s
pay stubs are for a period of a month. The pay stub identifies the customer,
and for the most part, the vehicle is identified. The pay stubs set out the
hours for which the plaintiff is paid under each type of work.

[134]     At Monoshee,
the plaintiff was paid in the same manner as he was paid at Armstrong Collision
as it related to pay based on estimates. However, the hourly pay at Monoshee is
$26.54 per hour. At Monoshee, there were other jobs for which Monoshee paid the
plaintiff. They are detailed in the plaintiff’s pay stubs for the months
starting July 8, 2008 through to December of 2008 for each month. The
categories for which the plaintiff was paid by Monoshee are “repair”, “paint”,
“private” and “fixed rate” and under separate columns. Each job is indentified
in the plaintiff’s pay stubs. “The estimate” method of payment is under the “repair”
column of the plaintiff’s pay stubs. The other columns are indentified as to
the number of hours and are at the rate of $26.54 per hour, except paint, which
is paid at $29.00 per hour.

[135]      However,
there is no evidence on how the fixed rate of pay was calculated. The plaintiff
stated it was a percentage of an amount, but was unable to give any details. There
was no evidence as to how much time out of his day he spends on fixed rates or
how his employer divides up the fixed rate jobs, or for that matter how the
other jobs are assigned, such as “repair.”

[136]     During the
months of July and August of 2008 the plaintiff’s hours for repairs were close
to the level of his estimates (billable hours) when he worked for Armstrong
Collision. Thereafter they reduce significantly without explanation. In 2009,
there was one pay period – August 2009 – when the plaintiff’s pay period had
224.5 hours under “repair.”

[137]     As
compared to the billable hours at Armstrong Collision, the rest of the pay
periods for repairs (estimates) were significantly less.

[138]     The plaintiff
received from Monoshee a T4 for the year 2008 stating that his earnings were
$27,476.12 and an amended T4 for the same year in the amount of $34,706.16. The
defendant declared his income in his 2008 tax return for employment income as
$47,375.15. This figure is the total of his income from Custom and Monoshee for
the year 2008 using the original T4 issued by Monoshee. Based on the amended
T4, the plaintiff’s total income should be $54,578.19.

[139]     In
December of 2008, the plaintiff acknowledges that he was off work to remove the
pins and plates in his ankle. He acknowledged that Monoshee was, for a period
of time, closed in December for the holiday season. There is no evidence as to what
those dates were.

[140]     Up to and
including April of 2009, the format of the plaintiff’s pay stubs was the same
except that the paint rate paid to the plaintiff is $31.25 per hour.

[141]     In May of
2009, the format of the plaintiff’s pay stub changed as to the descriptions of the
columns or tasks for which the plaintiff was paid. “Repair” remained the same
as did “fixed rate”. Throughout the rest of the year, the other columns are “Mech”
and “Frame”, instead of “paint” and “private”. For Repair, the plaintiff is
paid $33.00 per hour, for Mech the plaintiff is paid $43.00 per hour and for
Frame $38.00 per hour.

[142]     For the
year 2009, the defendant received a T4 from Monoshee in the amount of
$75,047.72.

[143]     Mr. Gordie
was not asked whether the higher billers at Armstrong Collision, such as the
plaintiff, sustained billing hours like those of the plaintiff during the
balance of the year 2007, and in the year 2008 and 2009.

[144]     The
plaintiff did not call anyone from Monoshee to give evidence, who I would
expect could have stated when the plaintiff was working or when he was not due
to pain he experienced while working. Monoshee could have explained the decline
in estimate hours that the plaintiff encountered in 2008 and why he did not
attain similar billable hours in 2008 and 2009 as he had at Armstrong Collision.

[145]     Both the
plaintiff’s parents gave evidence as did the plaintiff’s brother. No questions
were asked as to whether they attained the estimate hours that the plaintiff
had attained at Armstrong Collision. Nor did the plaintiff’s parents explain
the basis of the hours paid to the plaintiff and how Custom divided up estimate
hours among the plaintiff, Jeromy and the plaintiff’s father while working for
Custom, and the kinds of tasks at Monoshee that the plaintiff performed while
working for Custom.

[146]      The plaintiff
has the burden of proof to prove on a balance of probabilities that he has
suffered a past wage lost. Mr. Carson, the economist who provided a report on
the plaintiff’s past wage lost, concluded that the plaintiff’s average monthly
paid hours at Armstrong Collision exceeded the average monthly paid hours in
2009 by 32.8%. Mr. Carson in his report stated the difference between the
amount paid in 2007 versus 2009 could be attributed to three factors:
seasonality in the auto body service, failure of the plaintiff to take a
vacation while he worked for Armstrong Collision and that the plaintiff had
changed his employer. Added to that list should be the information and evidence
from Monoshee.

[147]     I award to
the plaintiff for past wage loss the sum of $58,280.00. I will leave it to
counsel to agree to the reduction of this amount, but pursuant to s. 95 and 98
of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231.

MEDICAL EVIDENCE

Evidence of Physicians and other Health Care Professionals

Drs. O’Brien and Lepage

[148]     Dr. O’Brien,
an orthopaedic surgeon, treated the plaintiff for injuries suffered in the
accident. The plaintiff had numerous appointments with Dr. O’Brien after his
surgery. Dr. O’Brien did not provide a medical report nor did he give evidence
at this trial. It is agreed among the plaintiff, the defendant and the third
party that no adverse interest would be drawn for failing to call Dr. O’Brien. Similarly,
the plaintiff, the defendant and the third party agreed that no adverse
interest would be drawn for the failure to provide evidence from Dr. Lepage,
who the plaintiff saw after the accident three times.

Dr. Richardson

[149]     Dr.
Richardson is an orthopaedic surgeon. He is not a treating physician of the
plaintiff. Dr. Richardson examined the plaintiff on December 17, 2010 at the
request of plaintiff’s counsel. Dr. Richardson authored two reports – one dated
January 21, 2010 and the other dated February 16, 2010 – both of which were
placed in evidence.

[150]     ICBC
sought the attendance of Dr. Richardson for cross-examination. This request was
cancelled after the trial started and the day before the plaintiff was to call
Dr. Richardson.

[151]     In his
report, Dr. Richardson stated that at the time he examined the plaintiff, “the
plaintiff continues to complain of symptoms in the neck, shoulders, left knee
and right ankle”. Dr. Richardson noticed that at the time, the plaintiff
“currently has one centimetre of wasting in the right calf as compared to the
left”. Dr. Richardson stated that the first clinical record of the plaintiff
complaining of back pain is found in the physiotherapist’s notes of August 21,
2007 and Dr. Lepage’s clinical notes dated October 27, 2007; complaints of neck
and back pain are contained in a massage therapy form dated July 12, 2007.

[152]    
In his evidence, the plaintiff described feeling back and shoulder
discomfort in the emergency department of the hospital immediately after the
accident and before his first surgery. Dr. Richardson notes that there is no reference
made of these complaints by those persons treating the plaintiff when he was
first admitted to hospital. Dr. Richardson notes in his report “although there
was a report of abrasions and contusions to the trunk and specifically to the
right flank”. Dr. Richardson opines that the neck, shoulder and back pain could
have occurred as a result of the plaintiff spending considerable time
non-weight bearing; first in a wheelchair, then using crutches and finally
using a cane.

[153]    
In the written statement dated May 13, 2007, signed by the plaintiff and
given to the police, the plaintiff, at page 6 of his statement, refers to his
injuries and includes “whiplash” and “sore ribs.”

[154]    
In any event, this soft tissue injury is attributed by Dr. Richardson to
the accident.

[155]    
Dr. Richardson tested the plaintiff’s upper extremities, lower
extremities as well as his trunk. Most were within normal limits. Dr.
Richardson notes the following:

Gait pattern: Shortened stance phase right leg.

Of note, on testing the calf stretch, Mr. Hildebrand’s right
heel could not stay on the ground.

…

Palpation: Tight trapezius muscles bilaterally, but not
tender. Mild limitation of left lateral flexion.

Wrists:

…

Palpation: Nontender right and
left, however some soreness or pain in the right wrist with forced dorisflexion,
none on the left.

[156]     Dr.
Richardson concludes under “Summary of Clinical Findings”

1.         Tight musculature in the cervical spine.

2.         Mild bicipital tendinitis, left shoulder more than
right with decreased active range of motion in the left shoulder.

3.         Minimal loss of range of motion right wrist with
soreness on loading.

4.         Left knee patellofemoral joint, circumference of
left knee 1 cm larger than right.

5.         Atrophy right calf compared to left with
enlargement of right ankle compared to left.

6.         Decreased range of motion right ankle and
decreased range of motion right subtalar joint.

7.         Preexistent cavovarus
foot deformity, right equal to the left in the face of a fracture-dislocation
of the right ankle. The patient should have custom orthotics to help stabilize
and correct foot position on the right with a similar orthotic on the left.

[157]     Dr.
Richardson concludes that the plaintiff had a pre-existent bilateral foot
deformity that was asymptomatic. He also concludes that Osgood-Schlatter’s
disease from which the plaintiff suffered as a child is not a factor regarding
the injuries suffered in the motor vehicle accident. He also concluded that
prior to the accident the plaintiff was healthy and did not suffer from the
injuries of which the plaintiff complains.

[158]     Dr.
Richardson states that the plaintiff’s symptoms in his neck, upper back, left
knee, as well as right ankle are aggravated by his current form of employment.

[159]     As to the
future, Dr. Richardson does not anticipate any future surgeries for the
plaintiff’s right wrist.

[160]     Dr.
Richardson concludes that the plaintiff’s left knee is the most “problematic
area.” He concludes that if the plaintiff continues to have significant
symptoms that impair his ability to work, and that he may possibly be a
candidate for arthroscopic knee evaluation and/or surgery. He concludes that
the plaintiff’s knee symptoms are consistent with a direct blow of some kind to
the knee causing the fracture.

[161]     He does
not anticipate any surgery to the right ankle or foot in the near future, but
if the plaintiff were to develop a late post-traumatic osteoarthritis in the
left ankle “he may be a candidate for an ankle fusion in the distant future”. He
also concludes that should his ankle develop locking or buckling, that the
plaintiff would be a candidate “for a right ankle arthroscopy which is done as
a day surgery”.

[162]     Dr. Richardson
concludes that all of the surgeries he describes are a possibility and not a
probability.

[163]    
Dr. Richardson reviewed x-rays of the plaintiff’s right ankle in 2007,
2008 and 2009 and found a minor decrease in the joint space on the right ankle
on the last x-ray as compared to those of 2008 and 2009. A further x-ray of the
plaintiff’s ankle taken on January 18, 2010 did not change Dr. Richardson’s
opinion.  Dr. Richardson states:

Mr. Hildebrand still has some
degenerative changes in the right ankle post fracture. They have not increased
significantly in the last one to two years.

[164]    
Dr. Richardson concludes that the right ankle and left knee injuries would
affect the plaintiff in carrying out:

 …activities such as carrying
heavy loads, climbing stairs, ladders, squatting or kneeling for extended
periods of time, and lifting from the floor level to the table level.”

[165]     Dr.
Richardson’s prognosis is that the plaintiff’s right wrist is “good” with
minimal clinical findings, and that there is a “slight increased risk of
degenerative osteoarthritis in the right wrist in the long term as he had an
intra-articular fracture.”

[166]     Dr.
Richardson’s prognosis for the left knee is “guarded” and that the plaintiff
continues to be symptomatic and that the plaintiff should use
anti-inflammatories or substances such as glucosamine or chondroitin sulfate.

[167]     As to the
plaintiff’s right ankle, Dr. Richardson’s prognosis for the right ankle is
“guarded” as to the range of motion. He is of the opinion that the plaintiff
has suffered a permanent loss of range of motion to the right ankle as compared
to the left, and that this is unlikely to improve. The plaintiff is at a
“mildly increased risk of osteoarthritis in the right ankle as compared over
the next 15 to 20 years.”  In the long term, the likelihood of osteoarthritis
in the right ankle is moderate. Dr. Richardson quotes medical literature that
states that the incidence of osteoarthritis occurring after ankle fractures is
probably 20% to 40%.

[168]     Dr.
Richardson also concludes that it would affect his ability to run and participate
in impact and pivot turn-type activities and recommends that the plaintiff
engage in “non-impact type activities such as swimming, cycling and using
elliptical trainer, etc. for fitness.”

Mr. Paul Saunders

[169]     Mr.
Saunders is a physiotherapist who treated the plaintiff from July 26, 2007
until May 13, 2009 for the injuries he suffered in this accident. Mr. Saunders
attended the trial at the request of ICBC and was cross-examined.

[170]     The
plaintiff attended therapy in the first month, twice a week. By September 2007,
he was treated once per week and, by April of 2008, the plaintiff was seeing
Mr. Saunders every two weeks.

[171]     Mr.
Saunders stated that over the two years of therapy, the plaintiff’s right ankle
was the most problematic area. His knee would periodically be exacerbated.

[172]    
Mr. Saunders notes that on August 21, 2007, the plaintiff complained of
pain in the mid-thoracic spine area, which surfaced after a gym workout. The
pain was described as intermittent. Mr. Saunders noted that with the increase
of the plaintiff’s activities, he had more thoracic spine pain and stiffness. Mr.
Saunders states:

Treatment consisted of spinal
mobilizations, soft tissue massage and specific exercises/stretches for Justin
to perform at the gym. These treatments coupled with his gym program appeared
to alleviate his thoracic pain as he last reported it on April 3, 2008.

[173]     Mr.
Saunders, both in his report and in his evidence, observed objectively areas of
either pain or decrease of range of motion.

[174]     Mr.
Saunders reassessed the plaintiff on January 12, 2010. The plaintiff reported
to Mr. Saunders that he had occasional left knee pain and clicking with long
walks, right ankle stiffness and pain, as well as right wrist pain that
occurred last summer when performing some manual labour. He found that the
range of motion in the plaintiff’s right wrist was within normal limits. Mr.
Saunders’ conclusions are much the same as Dr. Richardson’s as they relate to
range of motion and the difficulties that the plaintiff has suffered from his
injuries.

Ms. Linda Phillips

[175]     Ms.
Phillips is an occupational therapist. She prepared a Functional Capacity
Evaluation of the plaintiff. The plaintiff was assessed by Ms. Phillips on
January 27 and 28, 2010.

[176]     Ms.
Phillips did not observe the plaintiff at his place of employment and relied on
information from the plaintiff as to his activities at work.

[177]    
The plaintiff was referred to Ms. Phillips by plaintiff’s counsel to
answer the questions about his current work and functional ability which
include:

1)     What are
Mr. Hildebrand’s current functional tolerances?

2)     What are
Mr. Hildebrand’s functional abilities and limitations with respect to
employment?

3)     Is he able
to fully meet the demands of his job?

4)     What are
Mr. Hildebrand’s functional abilities and limitations in regards to daily
activities?

5)    
How may Mr. Hildebrand’s function change in the future in regards to his
ability to perform work, homemaking, leisure and self-care activities?

[178]    
Ms. Phillips stated:

Mr. Hildebrand was found to have
a fairly accurate perception of his abilities and limitations. In some
respects, he over-estimated his abilities (for example, he continued with the
lifting test when advised to stop because he felt that he could manage more
weight).

[179]     Ms.
Phillips tested the plaintiff’s ability to lift at various levels, carry
weight, stand and sit for various periods of time, go up and down stairs, as
well as bending and stooping, reaching and above shoulder work. Ms. Phillips
assessed the plaintiff’s tolerance for each activity.

[180]     Ms.
Phillips concludes that despite the plaintiff’s pain symptoms and his reduced
functioning following his work activities, he is able to meet the demands of
his current job, but concludes that he does not meet the demands of his current
job as he needs to take time off work due to pain and that he leaves work two
to three hours early once every two weeks. These assumptions were not proven as
no witnesses were called to give evidence from Monoshee.

[181]     Ms.
Phillips makes a further assumption that his employer makes certain
accommodation for the plaintiff during his work day. This assumption suffers
from the same problem as the first assumption.

[182]     Based on
information provided to Ms. Phillips by the plaintiff, Ms. Phillips concludes
that the plaintiff’s pace of work has “substantially decreased” since the
accident. She reports that the defendant, prior to the accident, had an
equivalent of 250 to 260 billable hours per month and now is only able to bill
180 to 200 billable hours per month. She then assumes that the plaintiff’s pace
of work has decreased by 32%. These conclusions also suffer from the same
problem, which is that no one from Monoshee was called to give evidence to
confirm or deny some of these assumptions. Nor can she conclude the plaintiff’s
pace of work has decreased as the work performed by the plaintiff for Monoshee
is different from that of Armstrong Collision. All Armstrong Collision work was
estimate work; Monoshee’s was not.

[183]     Ms.
Phillips’ functional capacity evaluation indicates that the plaintiff’s current
job is not recommended as an appropriate job for him due to the items he
regularly lifts of more than 75 lbs., and that there are other activities of
his employment which cause him pain.

[184]     Ms.
Phillips reports that the plaintiff is capable of performing all regular and
seasonal homemaking activities. These activities are detailed in her report. The
plaintiff did not indicate that he had difficulties with these activities
except during the period of his convalescence. She concludes that the plaintiff
is capable of performing all yard work tasks subject to having proper equipment
and taking frequent breaks. The plaintiff did not give evidence as to the
activities that Ms. Phillips details.

[185]     In her
report, Ms. Phillips addresses the plaintiff’s future as it relates to his
ability to perform work, and participate in homemaking, leisure and self-care
activities. Ms. Phillips states that the plaintiff’s current work will disable
him in these activities. There is no evidence that the plaintiff intends to
change his employment.

[186]     The
plaintiff described his work. The plaintiff provided Ms. Phillips with many of
the tasks that he was required to perform at his employment. Ms. Phillips found
his tolerance was limited.

[187]     If the
plaintiff exceeded his tolerances, according to Ms. Phillips, his pain would
increase causing him functional limitations after work.

[188]     In January
of 2010, Mr. Saunders heard only one complaint from the plaintiff relating to
his wrist. That complaint related to the use of a hammer the previous summer.

[189]     Some of
these conclusions that Ms. Phillips comes to are based on reports from the
plaintiff and are not confirmed by the plaintiff’s employer.

[190]     The
plaintiff was able to lift weights which according to Ms. Phillips he should
not be able to lift. She makes no mention of the fact that the plaintiff was
attending the gym every day for two and a half hours prior to the accident for
a little over a year, and that the plaintiff’s focus was on physical fitness
and increasing his muscle mass and that he continues to attend the gym.

Dr. Boyce

[191]     The third
party had the plaintiff examined by Dr. Boyce on a date after November 26, 2009
and before December 14, 2009.

[192]     Dr. Boyce
attended court for cross-examination.

[193]     Dr. Boyce
found that the plaintiff had complaints relating to his joints in his wrist,
knee and ankle; the worst being his right ankle and his left knee, but his main
complaint was that of his ankle.

[194]     Dr. Boyce’s
examination of the plaintiff, including any tests he conducted, were not
detailed in his report. The tests conducted by Dr. Boyce were substantially
less than those of Dr. Richards.

[195]    
Dr. Boyce concludes that the plaintiff should “expect full functional
recovery.”  Later on his report, Dr. Boyce states:

Otherwise as mentioned the ankle
does have full functional range of motion and is stable.

[196]     This
statement is unclear as it may state that Dr. Boyce concedes that the plaintiff
has lost range of motion in his ankle, but that it is still functional.

[197]     At the
same time Dr. Boyce states that the plaintiff’s “right ankle may require
further attention, possibly with attempts to optimize his flexibility and
strengthen without full impact at this time”. He acknowledges in his
recommendations that the plaintiff should engage in low impact activities
concluding however that by engaging in those new low impact activities, he may
return to all the activities he participated in prior to his accident. This
appears contradictory.

[198]    
Dr. Boyce states (page 6 of his report – tab 1 ICBC expert reports):

…there is a psychological block
to the improvement possibly related to mild posttraumatic stress disorder as
well as possibly related to an ongoing third party factor.

[199]     This is
speculation; there is simply no evidence to support this opinion.

[200]     I do not find
Dr. Boyce’s opinion helpful.

Non-Pecuniary Damages

[201]     The
defendant does not dispute that the plaintiff suffered a fractured right ankle
and wrist and a fractured left femur in the accident.

[202]     I have
concluded, on a balance of probabilities, that the plaintiff suffered multiple
abrasions and contusions which were resolved without any long-term effect.

[203]    
I also find, on a balance of probabilities, that the plaintiff suffered
soft tissue injury to the neck, shoulder and around the rib and back. Although
there are no clinical records noting this particular complaint when the
plaintiff was admitted to hospital, these complaints arose during his
convalescence and were noted by both Dr. Richardson and Mr. Saunders regarding
pain of the plaintiff’s rib and back area. Mr. Saunders stated:

As Justin’s activity level
increased, he presented with more consistent thoracic spine pain and stiffness.

[204]     I find, on
a balance of probabilities, that the plaintiff did suffer this soft tissue
injury as a result of the accident. However, Dr. Richardson found no
objectively measured loss of range of motion other than a slight decrease in
the left lateral flexion of the cervical spine. As compared to his other
injuries, including complaints about his neck, these complaints seem minor.

[205]     Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of enjoyment
of life, and loss of amenities. The compensation awarded should be fair and
reasonable to both the plaintiff and the defendant.

[206]    
For purposes of assessing non-pecuniary damages, fairness is measured by
reference to awards made in other comparable cases. While these cases are
helpful, however, they are only a guide. Each case depends on its own unique
facts. In Stapley v. Hejslet, 2006 BCCA 34, the court stated that before
comparing cases similar to that of the plaintiff, it is important to consider first
the purpose of non-pecuniary damages. Madam Justice Kirkpatrick stated its
purpose:

[45] Before embarking on that task, I think it is
instructive to reiterate the underlying purpose of non-pecuniary damages. Much,
of course, has been said about this topic. However, given the not-infrequent
inclination by lawyers and judges to compare only injuries, the following
passage from Lindal v. Lindal, supra, at 637 is a helpful reminder:

Thus the amount of an award for non-pecuniary damage
should not depend alone upon the seriousness of the injury but upon its ability
to ameliorate the condition of the victim considering his or her particular
situation. It therefore will not follow that in considering what part of
the maximum should be awarded the gravity of the injury alone will be
determinative. An appreciation of the individual’s loss is the key and the
"need for solace will not necessarily correlate with the seriousness of
the injury" (Cooper-Stephenson and Saunders, Personal Injury Damages
in Canada (1981), at p. 373). In dealing with an award of this nature it will
be impossible to develop a "tariff". An award will vary in each
case "to meet the specific circumstances of the individual case"
(Thornton at p. 284 of S.C.R.).

[46] The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(g) impairment of family, marital and social relationships;

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton, [2005]
B.C.J. No. 163
(QL), 2005
BCCA 54).

[207]     The
plaintiff seeks an award of between $100,000.00 to $135,000.00 for
non-pecuniary damages. He relies on the following cases to support these
figures. The cases are, together with the amounts awarded for non-pecuniary
damages:

[208]    
The defendant and third party rely on Bearman v. Manchur, [1995]
B.C.J. No. 1641 in which the court awarded the plaintiff $45,000.00. The third
party, in its oral submissions, conceded that given the age of the case, the
equivalent amount might be approximately $90,000.00.

Barkman v. Roy, 2005 BCSC 837

[209]     Mr.
Barkman was 47 years old at the time of the accident and 53 at the time of
trial. Mr. Barkman was in a head-on collision while driving his vehicle. He
lost consciousness briefly. He had cuts to his scalp. He had a broken elbow in
two places which required screws and wire inserted in an operation. His knee
was broken in two places requiring screws to be inserted. He had headaches and
low back pain.

[210]     Mr.
Barkman was a teacher whose preferred area of teaching was physical education,
although he could teach other subjects. He not only enjoyed teaching and
demonstrating the sports that he taught, he also liked to participate in sports.
His arm was placed in a sling and his leg required a brace, and for a time he required
crutches. Mr. Barkman pursued therapy and eventually was able to jog and ride a
bicycle.

French v. Fort St. John (City), 2003 BCSC 932

[211]     Mr.
French, at the age of 15, slipped on some ice injuring his knee. At the time of
trial he was age 21. As a result of falling, Mr. French suffered a full
thickness articular fracture of the cartilage of the femur, a grade IV fracture
of the patella, a tibial fracture and crush fracture of the lateral meniscus. He
had two surgeries and was left with a progressive degenerative condition that
would require a knee replacement in the future. He was bedridden for two months
and on crutches for sometime after the accident with ongoing pain. Mr. French
suffered from self-esteem problems and difficulties maintaining his proper
weight.

Wozniak v. Alexander, 2008 ABQB 430, 450 A.R. 329

[212]     At the age
of 17, Ms. Wozniak’s foot was nearly severed in two by the propeller of an
outboard motor. After the accident, she immediately underwent surgery and was
found to have a compound fracture in the area of the heel bone. There was nerve
damage, laceration of tendons and other muscle and soft tissue damage. Damage
to the heel bone was irreversible, requiring an ankle fusion as well as screws
to hold the fractures in place. Ms. Wozniak suffered excruciating pain and
could not weight-bear until approximately three months after the accident. The
pins and screws were removed in the fall of 2004; some three or four months
after the accident. She does not walk normally, cannot walk for long periods of
time, or stand for long periods of time. Her gait is affected, particularly
when she tires, which she does easily. Many of her recreational activities have
been curtailed because she cannot go places where she cannot sit. She has
limited movement in her foot. She has a high risk for developing arthritis.

Cole v. Smith, 2002 BCSC 1235

[213]     Mrs. Cole
was 53 years of age at the time of the motor vehicle accident.

[214]     She
suffered a compound fracture dislocation of the left elbow with a comminuted
dislocated fracture and dislocation of adjacent bones in the arm. She also
suffered a severe comminuted fracture of the left kneecap and severe fractures
in the bones of her right heel and foot. She was hospitalized for almost a
month. She was in significant pain. She had two surgeries that corrected some
of her problems. She was unable to pursue employment with her husband as she
had done prior to the accident, or participate in social and family events as she
had in the past. She was, for a period of two years, disabled.

Bearman v. Manchur, [1995] B.C.J. No. 1641

[215]     At the
time of the accident, Mr. Bearman was a 58-year old who diagnosed and repaired
computer equipment. This required him to do some heavy lifting. Mr. Bearman’s
injuries consisted of an ankle injury with a serious open wound which required
two skin grafts, a broken bone in his foot and an injury to his little finger
which required a fusion and eventually amputation. He was unable to stand for
long periods of time due to the skin graft and had difficulty holding things in
his left hand due to the amputation. He returned to work within seven months of
the accident, working part-time and eventually working full-time; albeit
performing lighter duties as he was unable to perform all the duties he did
prior to the accident.

The Plaintiff

[216]     The
plaintiff is a young man who suffered three different broken bones in his body.
He lost eight and a half months of work convalescing. He had surgery to repair
his broken bones and eventually had further surgery in which to remove plates
and screws. He was initially confined to a wheelchair, then walked with
crutches and eventually a cane. Many of his recreational activities were
curtailed, some of which have been curtailed permanently, particularly if they
relate to high impact-type activities. He has lost some range of motion in his
right ankle which is unlikely to improve. The prognosis for osteoarthritis in
the right ankle in the long-term is moderate. His injuries have prevented him
in part from pursuing some renovations he wished to do in his home. The
plaintiff’s injuries, particularly his right ankle and right knee, affect his
ability to carry heavy loads, climb stairs and ladders, squat or kneel for
extended periods of time.

[217]     The
plaintiff, at the time of the accident, was aged 21 and had recently been
certified as a journeyman auto body repair technician, a trade to which he
appears to be well-suited.

[218]     He has a
permanent disability as it relates to his ankle which prevents him from
pursuing activities that he pursued prior to the accident and he may have wished
to pursue in the future.

[219]     I assess
non-pecuniary damages in the amount of $135,000.00.

[220]     Counsel
for the plaintiff asked that in my award for non-pecuniary damages I take into
consideration the care and services provided by the plaintiff’s family members.
This method of assessment was not disputed by the defendant and the third party.
The plaintiff’s mother remained at his bedside for three days at the hospital
assisting him. Upon his discharge from hospital, the plaintiff lived at his
parents’ home until July 21, 2008. To accommodate him, the plaintiff’s parents
moved their furniture around and removed doors. The plaintiff’s mother provided
sponge baths every morning and evening and provided massages from time to time,
and cared for the plaintiff’s personal hygiene. The plaintiff’s mother did all
the plaintiff’s laundry and provided meals and laid out his medication before
she went to work and had his prescriptions filled as required. The plaintiff’s
mother estimated she spent three hours a day caring for the plaintiff,
excluding the times when they left the home. The plaintiff’s parents took him
to his medical appointments when he was living with them.

[221]     The
plaintiff’s father purchased an inexpensive electric wheelchair and modified it
to accommodate the plaintiff’s injuries. The plaintiff’s father estimates he
spent about ten hours helping the plaintiff and getting his home ready to
accommodate the plaintiff’s injuries. The plaintiff’s father also did some
clean-up work at the plaintiff’s residence which required runs to the dump.

[222]     When the
plaintiff moved back to his home, his sister came from Edmonton, Alberta to
look after him for approximately one week. She performed some of the tasks that
the plaintiff’s mother usually provided.

[223]     Upon the
departure of the plaintiff’s sister, the plaintiff’s brother, Jeromy, and his
wife, Leanne, moved into the plaintiff’s residence to assist and provide him with
some of the assistance that his mother and sister had provided. In addition,
they cleaned his house from time-to-time. The plaintiff’s brother and his wife
took the plaintiff to minor social events. The plaintiff’s brother and his wife
left the plaintiff’s home on July 13, when the plaintiff’s cast came off.

[224]     Had I made
a separate award for the care and services family members provided to the
plaintiff, it would be $6,000.00.

Future Loss of Housekeeping

[225]     Ms.
Phillips concludes that the plaintiff is capable of performing all regular and
seasonal homemaking activities albeit with increased pain. Similarly, she
concludes that the plaintiff is capable of performing all yard work tasks,
including tree pruning, mowing the lawn, weed whacking and gardening. However,
as time passes and should he develop arthritis in the ankle, Ms. Phillips
concludes that he may need assistance.

[226]     Just prior
to the accident, the plaintiff purchased a home for himself. Prior to that, he
had resided with his parents. During his convalescence and with the assistance
of friends and family, he started some renovations to his home in which he
participated.

[227]     I heard
very little evidence from the plaintiff about his activities at home except
during his convalescence.

[228]     On a
balance of probabilities, the plaintiff has not proven this head of damage.

[229]    
Ms. Phillips’ report on this head of damages is speculative and its
considerations, such as the plaintiff continuing his present job. If he did
not, Ms. Phillips concludes:

…he will remain independent in
homemaking, leisure and self-care activities for the foreseeable future (even
with the demands of a family). The exception to this would be if he develops
arthritis in his left knee or in his right ankle.

Future Loss of Wages and Loss of Earning Capacity

[230]     The
plaintiff described his duties as a journeyman auto collision repair technician.
Once he receives a vehicle he tears it down and writes a supplement.

[231]     His repair
duties are to remove panels, straighten frames, requiring that the vehicles be
chained to the ground. In the course of his duties, he is required to
“manhandle” parts. He replaces panels and doors on vehicles and skins on the
roofs of the vehicles. During the course of some these repairs, he is required
to lift tool boxes out of trucks. He is aided by other workers for some of this
lifting.

[232]     He is
required to sand surfaces of vehicles and hammer out small dents, which he
states at times aggravates his wrist.

[233]     He is
required to walk on concrete which can aggravate his knee and ankle, particularly
if he steps on tools.

[234]     He is
required to work with his arms extended over his head which can sometimes
aggravate his shoulder, particularly when working on the upper half of a
vehicle which occurs when lifting roof skins and welding plug holes. He works
under vehicles with the assistance of a cart working with his hands above his
head.

[235]     An award
for loss of earning capacity is to address the loss of an asset: the plaintiff’s
ability to earn an income. See: Rosvold v. Dunlop, 2001 BCCA 1, 84
B.C.L.R. (3d) 158. The damage awards are made up in lump sums and in the form
of an assessment.

[236]    
The standard of proof in assessing loss of future earning capacity is stated
by Madam Justice Huddart in Rosvold:

[9] Because damage awards
are made as lump sums, an award for loss of future earning capacity must deal
to some extent with the unknowable. The standard of proof to be applied when
evaluating hypothetical events that may affect an award is simple probability,
not the balance of probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458.
Possibilities and probabilities, chances, opportunities, and risks must all be
considered, so long as they are a real and substantial possibility and not mere
speculation. These possibilities are to be given weight according to the
percentage chance they would have happened or will happen.

[237]    
The court is required to take into consideration all the factors that
arise from the evidence. In Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353,
35 A.C.W.S. (2d) 96 (S.C.), Mr. Justice Finch (as he then was) lists the
following considerations:

[8] The means by which the value of the lost, or
impaired, asset is to be assessed varies of course from case to case. Some of
the considerations to take into account in making that assessment include
whether:

1.The plaintiff has been rendered less capable overall from
earning income from all types of employment;

2.the plaintiff is less marketable or attractive as an
employee to potential employers;

3.the plaintiff has lost the ability to take advantage of
all job opportunities which might otherwise have been open to him, had he not
been injured; and

4.The plaintiff is less valuable to himself as a person
capable of earning income in a competitive labour market.

[238]     The
assessment of loss of earning capacity is not a mathematical formula. However,
evidence of pre-accident earnings and post-accident earnings and their present
value may be considered. Madam Justice Huddart sums up the exercise in Rosvold
at para. 18 in the following way: “The assessment of damages is a matter of
judgment, not calculation.”

[239]     The
plaintiff, after the accident, returned to employment of automotive collision
repair technician and would have returned to his former employer had the
position been available. The plaintiff obtained alternate employment as an
journeyman automotive collision repair technician for wages that were similar
to that which he earned at Armstrong Collision. This in itself is not
sufficient to deny the assessment of damages for loss of earning capacity: Pallos
v. Insurance Corp. of British Columbia, 100 B.C.L.R. (2d) 260, 53 B.C.A.C.
310.

[240]     What must
be considered is whether there is medical evidence of partial permanent
disability which “could have an effect on his capacity to work, and on his
employability” [Pallos, para. 41].

[241]     The
plaintiff did suffer partial permanent disability. This is supported by the
evidence of Dr. Richardson, the physiotherapist, Mr. Saunders and occupational
therapist, Ms. Phillips. Dr. Boyce does not share this opinion, however, as I
stated earlier, I found Dr. Boyce’s report contradictory and of little
assistance.

[242]     There was
no evidence before me that the plaintiff intended on taking up another
occupation as a result of the injuries that he suffered in the accident. The
evidence before me is that the plaintiff excels at his chosen trade. It is a
trade that the plaintiff appears to have been destined to participate in since
he was young boy. Both his father and brother work in the same trade as the
plaintiff.

[243]     The
plaintiff has approached his loss as a future loss of income calculated
mathematically. This approach is recognized in Pallos.

[244]     The
plaintiff calculates his future loss of income based on the proposition that
since returning to work after the accident, he bills 32.8% less in monthly
hours. This calculation is based on the plaintiff’s average hours while working
for Armstrong Collision from January 2007 to the date of the accident in May of
2007. The plaintiff’s average billings at Armstrong Collision is 259.4 hours
per month.

[245]     Mr.
Carson, in his past and future loss of income report, built into his report
negative contingencies for illness and disability. Mr. Carson acknowledged in
his report that the difference between the plaintiff’s billable hours at
Armstrong Collision may be due to seasonality, lack of vacation time taken and
a change in employer. The plaintiff used a mid-range for loss of billable
hours. Instead of basing his calculations on 259.4 billable hours per month,
the plaintiff chose 239.4 billable hours per month.

[246]    
Using the present value tables contained in Mr. Carson’s report and to
age 59, and assuming an average monthly billing of 239.4 hours per month, less
the plaintiff’s earnings, the plaintiff concludes that his loss to age 59 is
$332,380.00. In his report, Mr. Carson stated that based on an:

… analysis of income
information for males in British Columbia, with trade certificates in the auto
body work, few remain in full-time employment after age 59.

[247]     The
plaintiff does a further calculation based on the plaintiff continuing part-time
employment until age 65. The plaintiff calculates that this would attract a
further loss; a present loss of $11,906.00 for a total present value loss of
$344,286.00.

[248]    
The plaintiff seeks damages in the amount of $450,000.00 for future
earning capacity. The increase of $100,000.00 is based on the plaintiff’s
statement in his written submission:

113. If Mr. Hildebrand sought any form of post secondary
education he would lose at least 4 years of income to obtain a degree.

114. The appropriate amount we
submit for diminished future earning capacity is $450,000.00.

[249]     The
purpose of loss of earning capacity is to meet such a contingency such as a job
loss due to the injuries suffered in a motor vehicle accident.

[250]     The third
party challenged Mr. Carson’s report. Mr. Carson had only a summary of the
plaintiff’s pay stub in 2007 from Armstrong Collision. At trial the plaintiff’s
pay stubs were entered as an exhibit. In its argument, the third party did not
demonstrate the significance of not having those documents. The third party
argues that a sizeable portion of the plaintiff’s income came from fixed rate
tasks. The plaintiff was not paid on fixed rate at Armstrong Collision. For
approximately the first six months of 2008, the plaintiff worked at Monoshee as
a contractor for his parents’ business. There was no evidence led which
explained how the amounts paid to the plaintiff by Custom were determined.

[251]     There are
a lot of assumptions made by the straight mathematical approach that may not be
true over the next 41 years. For example, the auto repair business may change
considerably, making it possibly better or worse for the plaintiff. The
plaintiff may encounter ill health. The plaintiff may go into business for
reasons unrelated to the accident. All of this, of course, is speculative, but
that is the nature of this head of damage.

[252]     I conclude
that the plaintiff, who at trial was aged 24, has a permanent injury, suffers
pain which will limit him from performing certain activities and which impair
his earning capacity.

[253]     In making
an award for damages for loss of earning capacity for the plaintiff, it must
not only be fair and reasonable for the plaintiff, but also the defendant.

[254]     At the
time of trial, the plaintiff was earning a similar amount as to the amount he
earned at Armstrong Collision. He continues to work as a journeyman auto
collision technician. His former employer would re-employ him if there had been
an opening. It may be that the plaintiff will return to Armstrong Collision for
employment. This does not detract from the fact the plaintiff has a permanent
injury which impairs his earning capacity.

[255]     In considering
the factors suggested in Brown, I have come to the following conclusions:

1)    the plaintiff is
less capable from earning income from some types of employment. Prior to the
accident, the plaintiff was in good health and was fit. The deformity in his
foot referred to by Dr. Richardson was asymptomatic which may be symptomatic as
a result of the plaintiff’s ankle fracture;

2)    the plaintiff
may be less marketable or attractive as an employee to potential employers. As
an example, the plaintiff gave evidence that walking on cement caused
discomfort to his ankle and repetitive activities caused some pain in his wrist.
It is possible the plaintiff may require further medical attention which will
require him to be off work. As an example, it is possible that he may require
his ankle to be fused. In the future, he may be a candidate for arthroscopic
knee evaluation or surgery, the results of which may limit the plaintiff in his
employment or foreclose him from his employment;

3)    the plaintiff
has lost an advantage of some job opportunities which might be available to
him. He is only aged 24. Those jobs may be jobs requiring walking on cement,
some lifting as it relates to his knee and other types of manual labour in
which the plaintiff is now engaged. The plaintiff, by his choice of trade and
the pre-accident activities, demonstrate that he is inclined towards physical
employment;

4)    all of this
makes the plaintiff less valuable to himself in a competitive labour market.

[256]     In valuing
and assessing a loss of earning capacity, this amount takes into consideration
the loss of income that the plaintiff relies subject to its limitations: Rosvold.

[257]     I award
the plaintiff damages for loss of earning capacity of $250,000.00.

Special Costs

I am prepared to allow special costs sought by the plaintiff
as shown on exhibit A of the plaintiff’s solicitor’s written submissions, save
and except the cost of replacement of the motor-cross gear. The evidence of the
replacement of the motor-cross gear came from the plaintiff; they were guesses.
As a result, I allow the plaintiff’s special costs at $6,318.25.

Cost of Future Care

[258]     The cost
of future care is divided into three categories: medication, therapies and
homemaking.

[259]     Dr.
Richardson recommended the use of over-the-counter medication under the heading
“Therapies”. They are all recommended by Ms. Phillips and Dr. Richardson. I
find that these are reasonable given the injuries the plaintiff suffered.

[260]     Under the
heading “Homemaking”, I find the need for snowblowing and gardening tools and
the need for a handyman speculative.

[261]     Approximately
a month before the accident, the plaintiff moved from his parents’ home to a home
he had purchased. It is acknowledged that the plaintiff can perform his outdoor
gardening activities. There is little evidence before me as to what outdoor
activities the plaintiff performed. There was no evidence before me as to what
gardening tools the plaintiff owns and uses. Ms. Phillips, in her report,
assumes that the plaintiff will develop arthritis in his wrist and ankle. This
is not the opinion of Dr. Richardson. His opinion is that it is possible. I am
not prepared to consider the snowblower, yard maintenance, or handyman services
under the cost of future care. I assess damages for future care costs at
$23,902.00. This is the present value for those items and services listed in
Mr. Carson’s report under the headings “Medications and Therapies”.

SUMMARY

[262]     In
summary, I find that liability as between the plaintiff and the defendant is
90% to the defendant and 10% to the plaintiff and award the following:

COSTS

[263]    
The parties may address me on the matter of costs. If I am not advised
that the parties’ counsel wish to address me within 30 days of receipt of the
reasons, then I order costs to the plaintiff to the tariff of the Supreme
Court Rules, Scale B, and disbursements.

“H.C.
Hyslop J.”

HYSLOP J.