IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111216

Docket: 19501

Registry:
Cranbrook

Between:

Rolf Reiner Kumant

Plaintiff

And

John Pommier,
Anton Wolfgang and
Canadian Sun & Mountains Travel Corporation

Defendants

Before:
The Honourable Mr. Justice Melnick

Reasons for Judgment

[1]            
Rolf Reiner Kumant (“Mr. Kumant”) was injured in a motor vehicle
accident. Liability is admitted. This is an assessment of his damages.

I.        BACKGROUND

[2]            
Mr. Kumant is presently 71 years of age. He resides near
Skookumchuk in the East Kootenay region of British Columbia on a 20 acre parcel
of forested land. He lives a Spartan lifestyle in a mobile home without
electricity. He retired on very modest pensions in 1993 at age 54 following a
career principally as a carpenter. His pensions include one from the Workers’
Compensation Board for a total body disability of 2-1/2% for a work-related
injury to his right knee in 1990. He also has a documented history of
degenerative disc disease in the lumbar spine and osteoarthritic change going
back to at least 1996. He experiences back pain from time to time as a result
of his injured right knee giving out.

[3]            
Mr. Kumant was injured in a motor vehicle accident on July 11,
2007. He was driving to Skookumchuk from Cranbrook in a borrowed Mazda pick-up
truck. He had stopped in an area of dusty road construction, and had just
commenced to move forward again when his vehicle was struck from the rear at
about 80 km/h by one of the defendants’ vehicles and then subsequently at about
100 km/h by the other defendant’s vehicle. He was able to drive the Mazda home
but it was later written off.

[4]            
The next day, Mr. Kumant attended the emergency department at the
East Kootenay Regional Hospital. An x-ray taken there apparently did not
disclose any recent fracture. He was prescribed a pain reliever. He then saw
his family doctor, Dr. VanRietschoten, for an unrelated medical matter in
August 2007. On September 12, 2007, he first complained to Dr. VanRietschoten
of neck discomfort as well as ongoing headaches, both of which Mr. Kumant
related to the accident. He was referred to physiotherapy and prescribed pain
relievers. Two weeks later, he reported increased discomfort which he related
to massage therapy. Dr. VanRietschoten explained then to him that for him
massage therapy would not be of lasting benefit.

[5]            
At this time, Mr. Kumant complained of loose teeth. Dr. VanRietschoten
diagnosed this as being due to the effect of severe chronic gingivitis. Mr. Kumant,
however, says the loose teeth were a result of the accident.

[6]            
In November 2007, Dr. VanRietschoten was concerned that Mr. Kumant’s
headaches were possibly drug induced due to the caffeine in the Tylenol 3 he
was taking (Mr. Kumant also reported to a medical specialist that he
usually drank 12 cups of coffee a day). However, Dr. VanRietschoten later
concluded that these headaches were more probably secondary to Mr. Kumant’s
cervical spine degenerative changes.

[7]            
In early January 2008, while Mr. Kumant was dismounting from a
tractor he had been using to plow snow, his right knee collapsed and he fell to
the ground. Mr. Kumant experienced low back (lumbar spine) pain after the
fall which he related to the motor vehicle accident but which Dr. VanRietschoten’s
report of June 23, 2011, suggests was in a different area of his back than the
pain which he had earlier complained of as resulting from the motor vehicle
accident (his cervical spine). Mr. Kumant had experienced pain in the
lumbar area of his back long before the motor vehicle accident. That said, Dr. VanRietschoten
did observe that it was reasonable to assume that there had been some
aggravation of the lumbar spine related to the motor vehicle accident, but it
was difficult to say how much. Significantly, though, in his report he stated:

Soft tissue injuries in the
cervical spine and lumbar spine areas are consistent with the mechanism of the
motor vehicle accident. Unfortunately, imaging studies before and after the
motor vehicle accident do not show any acute changes at the time of the
accident or acceleration of deterioration long after the accident. This makes
it very difficult to link anything other than soft tissue injury to the
mechanism of the accident as reported. Recovery from this would be expected to
occur over a period of six weeks to nine months. According to his own reports
(May 25, 2011) his cervical spine is now much more comfortable and his symptoms
are predominantly related to his lumbar spine…

[8]            
In early 2008, an MRI scan of Mr. Kumant’s back was done. It
revealed a compression fracture in the T-12 area. Apparently no surgery was
recommended as a result. Mr. Kumant indicated to Dr. J. David
McDougall, a doctor who examined him in April 2011 on behalf of the defence,
that he believed this fracture to have been from an old construction project
injury.

[9]            
Mr. Kumant placed into evidence clerical notes from the Cranbrook
Physiotherapy Clinic detailing treatment he had received there for his back
over an approximately two year period following the accident. These treatments
necessitated his driving to Cranbrook. He also attended specialists in Calgary,
at the requests of the defence and of his former counsel. The trips out of town
required him to have someone care for his home due to a history of it being
broken into frequently, he said.

[10]        
For a period of months following the motor vehicle accident, Mr. Kumant
was unable to do his household chores, cook or care for certain trees that
required watering by either a gravity fed watering system or one operated with
a gasoline powered pump (I am not sure which, although I accept that for a
period of months after the accident, Mr. Kumant would not have been
physically capable of operating either one). As a result, he had to replace a
number of trees. Friends assisted him with many of the household chores he
could not do himself. They were not paid for their services but, undoubtedly, Mr. Kumant
required their help. While he could not afford to pay them at the time, he
wishes to recover damages sufficient to enable him to do so now. Two of the
friends, at his request, have submitted a joint account for their services.
There is no pleading in the nature of an “in trust” claim and one friend, who
has not submitted an account, appears to have been “paid” by Mr. Kumant
having allowed this friend to harvest firewood from his property. Patricia
Roberts (“Ms. Roberts”) and James Thomason (“Mr. Thomason”), the two
friends who submitted the account, gave evidence. They gave me the clear
impression that they just wanted to help Mr. Kumant as friends do – but up
to a point. As they did a lot for him they reached a point where they expected
to be compensated, when Mr. Kumant could do so.

[11]        
Mr. Kumant says that he had plans to improve his mobile home
residence by constructing an addition onto it – something he says he can no
longer expect to do as a consequence of his injuries. It is worth noting that,
at the time of the accident, he had been retired for about 14 years without
having commenced this project. He put in evidence a quote for the removal of
his mobile home and the construction in its place of a 1200 square foot house
and separate carport with a storage locker. He provided no evidence to
demonstrate that there was even a remote possibility he would ever have built
such structures.

[12]        
He also gave evidence that, as a result of the injuries he suffered in
the accident, he was unable to undertake certain construction work for others.
Thus, he claims, he has lost opportunities to earn income in the past and in
the future.

[13]        
Mr. Kumant placed into evidence a quotation for the removal of a
considerable number of trees that are stated on the quote to be dangerous. As
well, he submitted quotes for the supply and planting of over 100 trees of
various species and for the installation of 600 feet of water line. As well, he
purchased 1000 feet of one inch pond tubing which I understand was, in whole or
in part, used to supply water to certain trees and plantings.

II.       ANALYSIS

[14]        
A claimant must satisfy the court on a balance of probabilities that he
or she has suffered a particular injury as a consequence of an accident for
which a defendant is liable. He or she must also establish, to the same
standard, that he or she has incurred damages as a result of that injury. The
damages must be related to a consequence of the injury and not to some other
cause of a difficulty or problem in the life of the claimant except to the
extent that that other difficulty or problem was made more difficult by the injury.

[15]        
In this case, I have concluded on the basis of the medical evidence
before me, particularly that of Dr. VanRietschoten, that the ongoing disabilities
Mr. Kumant ascribes to this motor vehicle accident are more probably
related to injuries that pre-existed the accident. As Dr. VanRietschoten
observed, Mr. Kumant suffered soft tissue injuries in the accident which
he would have expected to resolve in a period of between six weeks and nine
months. The effect of these soft tissue injuries were probably exacerbated
somewhat by the fact that they aggravated (to an unquantifiable extent, says Dr. VanRietschoten)
the pre-existing degenerative back disease. But the force of the medical
evidence before me is that Mr. Kumant’s pre-accident physical condition,
including the state of his knee, his back and his neck, were not made worse in
any way that would result in other than a temporary exacerbation of them. I am
satisfied that Mr. Kumant was recovered from the effects of the soft
tissue injuries he suffered in the accident after one year. That he continues
to suffer disabling physical difficulties I do not doubt. But these are the
result of his pre-existing injuries and disabilities, not the result of the
injuries from the accident. For example, his fall as he dismounted a tractor in
January 2008 no doubt substantially contributed to his ongoing problems. That
did not happen because of any injury from the motor vehicle accident but was
directly and solely the result of the knee injury he had suffered many years
before.

III.       DAMAGES

1.       Non-Pecuniary

[16]        
Mr. Kumant acted as his own lawyer in these proceedings. Although
he did not supply me with any case authorities to suggest a range of
non-pecuniary damages that he felt was appropriate, he did submit that an award
of $115,000 for non-pecuniary damages was what he was seeking. However, I
stated to him and to defence counsel at the end of the trial that I would
review any decisions on quantum listed in the trial brief filed by his
prior counsel. Some of them detail awards given for injuries much more serious
than I have found were suffered by Mr. Kumant. Those that may be said to
be at all relevant range from a low of $40,000 in Kassian v. Roy, 2008
ABQB 80, to a high of $65,000 in Kuskis v. Tin, 2008 BCSC 862. The
defence suggested a range of $15,000 to $25,000 based on a number of cases from
a low of $6,000 in Kain v. Kirkman, 2006 BCSC 1770, to a high of $25,000
in Smith v. Towns, 2005 BCSC 79.

[17]        
I have determined that an award of $30,000 is a fair assessment of Mr. Kumant’s
non-pecuniary damages for the soft tissue injuries he suffered to his neck and
cervical spine and for the extent to which his pre-existing injuries were
exacerbated for much of the 12 month period of his recovery.

2.       Past Loss of
Income

[18]        
The evidence put before me does not support a claim for past loss of
income during the period I have found it would have taken Mr. Kumant to
recover from the injuries suffered in the accident. That he may have had an
opportunity to do work such as constructing a building for a friend is too
vague to be reliable. Nor did I have any evidence from the individual involved.
I would not make any award under this heading.

3.       Loss of Income – Earning
Capacity

[19]        
There is no evidence to support a claim in loss of income earning
capacity in the future as a consequence of the soft tissue injuries suffered in
the accident. That Mr. Kumant may be restricted from earning income or
performing tasks in the upkeep of his own property in the future is a real
possibility – but not because of what happened to him in the motor vehicle
accident. It will be because of a combination of the aging process against a
background of his physical condition because of the injuries he suffered prior
to the motor vehicle accident (or afterwards, such as the fall when dismounting
the tractor).

4.       Special Damages

A.       Housekeeping, et
al.

[20]        
I accept that Mr. Kumant required help with housekeeping and
property maintenance for many months following the motor vehicle accident. Ms. Roberts
and Mr. Thomason provided most of that. Mr. Gary Seitz (“Mr. Seitz”)
helped get in firewood but took wood in exchange. Besides, he has not submitted
any account for the services he provided. I would not make any award for the
work done by Mr. Seitz.

[21]        
However, it is appropriate to compensate Mr. Kumant for the
reasonable cost of housekeeping, property maintenance, cutting and chopping
firewood, and so on. By “reasonable” I mean both in terms of an hourly rate
appropriate to the nature of the services and the number of hours of service
provided. Undoubtedly, Ms. Roberts and Mr. Thomason, as good friends
of Mr. Kumant, did not both work every hour they recorded as being on his
property. On the other hand, he lives in an out-of-the-way location and he was
fortunate to have had them be prepared to travel to his property to help him.

[22]        
In my assessment, given the nature of the services provided, it is
reasonable to compensate them at the rate of $15 an hour, not the $20 an hour
submitted on their account. If Mr. Kumant wants to pay the full $20 an
hour that is up to him. So, too, with the number of hours of work claimed and
the period over which the work was performed. Mr. Kumant has provided an
account indicating that they did work for him through to November 4, 2011. I do
not doubt that they did so. But, after June 2008, any need he had for such
assistance was not as a consequence of any injury received in the motor vehicle
accident. The number of hours of work billed to the end of June 2008 is 433. Of
that amount I would allow 400 hours as a reasonable amount of time working. At
$15 an hour, that totals $6,000. I would award that amount to Mr. Kumant
to pay for these services. In response to the defence position that this is
essentially an in trust claim that was not pleaded, I find that with respect to
the services of Ms. Roberts and Mr. Thomason at least, this is not so
and the evidence satisfies me that he made a bona fide arrangement with
them to provide services for compensation. As noted, however, the defendants
should not have to shoulder the cost of the full extent of the services
provided nor the full rates charged.

B.       Mileage

[23]        
I accept that Mr. Kumant had physiotherapy and massage treatments
that were made necessary as a consequence of the injuries he suffered in the
motor vehicle accident but also, as cautioned by Dr. VanRietschoten at the
beginning, that the extensive passive treatments were not necessary or even beneficial.
Mr. Kumant had to drive from his home near Skookumchuk to Cranbrook for
treatments. A round trip is 122 km. He says he made 74 trips to Cranbrook to
see a doctor or (for the most part) have a physiotherapy treatment. Given the
comment of his own doctor, I conclude that the soft tissue injuries he
sustained in the accident probably did not warrant such extensive attendance at
a physiotherapist. In my view, it is reasonable to compensate Mr. Kumant
for mileage to attend half of those treatments. As there were some trips only
for the purpose of seeing a doctor or to have x-rays, I would compensate him
for 40 of the trips to Cranbrook.

[24]        
Mr. Kumant has claimed mileage at 58 cents a kilometer. I conclude
that a more appropriate rate is 40 cents a kilometer. Thus I would award him
.40 x 122 x 40 = $1,952 for mileage for trips to Cranbrook. In addition, he
travelled 680 km to have an MRI. One half of that related to the motor vehicle
accident injury I have found. I would award him one half of .40 x 680 = $136
for that trip. The total award for mileage is thus $2,088.

C.       Medications

[25]        
Mr. Kumant has submitted a number of receipts for medications. He
should be compensated for the expense he incurred for them up to the end of
June 2008. As best I can determine from a review of the receipts, that amounts
to $239.23.  With a $15 user fee for physiotherapy, the total is $254.23.

D.       Miscellaneous
Special Damages Claimed

[26]        
Mr. Kumant put into evidence receipts from Dr.Spowart, a dentist,
for an examination (of his loose teeth I understand from Mr. Kumant);
Cranbrook Vision Care for an eye examination; Top Crop Garden, Farm & Pet
for the cost of preparing a quote on the supply and installation of the over
100 trees as well as the quote itself for $9,948.50; a receipt for the supply
of 1000 feet of one inch tubing in the amount of $2,990.40; housekeeping
expenses of $1,526 while Mr. Kumant went to Vancouver and Calgary for
litigation-related medical examinations; a quote of $2,835 for the installation
of a water line; a quote for $296,800 for the construction of a residence; a
quote for supply and installation of concrete (for the residence); and an
invoice for 2 MRI procedures, one for his cervical spine and another for his
lumbar spine at $775 each for a total of $1,550.

[27]        
Of these various claims, I would allow the claim for an MRI of his
cervical spine at $775. Mr. Kumant claimed that he suffered frequent
break-ins. I am satisfied that the defendants should be responsible for bearing
the cost of this claim even though the reason for the claim (the history of
break-ins) is arguably somewhat remote. I would not put the assessment of this
claim over to taxation as suggested by counsel for the defence. Mr. Thomason
spent 80 hours housekeeping on the two occasions. The claim of $1,120 for this
is reasonable. The claim for $406 for mileage is not – it is not substantiated
in the evidence.

[28]        
None of the other claims noted above are justified on the evidence.

[29]        
There is one other claim: Mr. Kumant gave oral evidence that
because he could not water his garden or certain trees, they died. Mr. Thomason
gave evidence of installing a watering line and watering certain replacement
trees. Ms. Roberts indicated in her evidence that the replacement trees
did well; Mr. Thomason said that they died. In any event, Mr. Kumant
has not convinced me that he could not have made arrangements sooner for the
watering to be done, particularly given that Ms. Roberts and Mr. Thomason
were frequently on his property assisting him with other chores as noted above.
I would not allow this claim which is, in any event, unsubstantiated with any
receipt or other proof of purchase.

[30]        
Thus, the total I would allow for the miscellaneous claims is $1,895.

IV.      SUMMARY

[31]        
In summary, I award the following damages to Mr. Kumant.

[32]        
Unless there is a reason to provide me with submissions as to costs, I
award Mr. Kumant his costs on Scale B. Mr. Kumant will have to make
enquiries as to the procedure he has to follow to assess and recover those
costs.

“Melnick
J.”