IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120418

Docket: 32591

Registry:
Penticton

Between:

Frederick
Kingsfield

Plaintiff

And

William James
Powers

Defendant

Before:
The Honourable Mr. Justice Barrow

Reasons for Judgment

[1]            
The plaintiff, Frederick Kingsfield, was injured in a motor vehicle
accident that happened shortly after 1 p.m. on Friday, November 16, 2007. By
this action he seeks to recover damages. The defendant, William Powers, denies
liability.

The Accident

[2]            
The accident happened on Highway 97 in Oliver. The plaintiff, who works
for FortisBC, was northbound on the highway en route to a service call. He was
driving a one-ton service truck and working with a colleague, Richard Royer. Mr. Royer
was also operating a FortisBC truck but his vehicle was larger and slower than Mr. Kingsfield’s.
The two men were en route to a vacant fruit stand on Highway 97 where they
planned to disconnect the hydro service. Mr. Kingsfield arrived at the
fruit stand first. Because Mr. Royer did not know the precise location of
the fruit stand, the two men agreed that Mr. Kingsfield would pull off the
highway adjacent to the stand and wait for Mr. Royer to arrive. Once Mr. Royer
was in sight, and once Mr. Kingsfield was sure Mr. Royer could see
him, he, that is Mr. Kingsfield, planned to pull into the fruit stand
ahead of Mr. Royer.

[3]            
The fruit stand is on the west side of the highway. Mr. Kingsfield
pulled off on the northbound shoulder to wait for Mr. Royer. When he saw Mr. Royer
approaching he turned across the highway intending to enter the fruit stand’s
parking apron. As he was pulling across the highway he struck the defendant who
was also proceeding northbound on the highway.

[4]            
Highway 97 consists of two paved lanes which are divided by double solid
yellow lines at the location of the accident. It has broad paved shoulders
which are separated from the travelled portion of the highway by white fog
lines. The posted speed at the scene of the collision is 50 kilometers per
hour. The speed limit for northbound traffic decreases as one approaches the
municipality of Oliver. Some distance south of the accident scene the speed
limit decreases from 80 kilometers per hour to 70, and about 400 feet south of
the accident it drops again to 50. For some distance both north and south of
the accident scene the highway is straight and reasonably level. On the day of
the accident the weather was good and the road was bare and dry.

[5]            
According to Mr. Kingsfield, it was just after 1 p.m. when he
stopped across from the fruit stand to await Mr. Royer. He turned on his
emergency flashers and activated a rotating amber light mounted on a pole that
reached above the level of the cab of his truck. He said that he could not see
out of the rear window of his truck because of the equipment he carries on the
truck deck so he was watching for Mr. Royer’s approach using his driver’s
side rear view mirror. When he saw Mr. Royer approaching he began to pull
onto and then across the highway. Just as he was crossing into the southbound
lane, his vehicle was struck by the defendant. Mr. Kingsfield did not see
the defendant prior to the collision. He testified that south of the point
where he was stopped there is a depression or dip in the highway. He theorized
that he could see Mr. Royer because Mr. Royer had not yet reached the
depression, and he did not see Mr. Powers because Mr. Powers was in
the midst of the depression and not visible to him when he last looked.

[6]            
Mr. Powers died prior to the trial. His examination for discovery
evidence given in May 2011 was tendered under the principled exception to the
hearsay rule without objection by counsel for the plaintiff. Mr. Powers
said that he was driving a red 1992 Buick Skylark sedan on the day in question.
He was travelling from his home, just south of the accident, to Oliver where he
was going to do some shopping. He saw a FortisBC truck beside the road and as
he approached he saw it pull out in front of him. In order to avoid “rear
ending him”, and thinking that Mr. Kingsfield was going to continue
northbound, Mr. Powers pulled into the oncoming or southbound lane,
crossing the double solid line to do so, intending to go around him. It was as
he was abreast of him that Mr. Kingsfield’s truck crossed into the southbound
lane and struck Mr. Powers’ vehicle.

[7]            
The impact occurred in the southbound lane when the left front corner of
the truck Mr. Kingsfield was driving struck the right front quarter panel
of Mr. Powers’ car. There was just under $5,000 damage to the FortisBC
vehicle and while there is no evidence of the value of the damage to Mr. Powers’
car, judging by the photographs the damage was extensive.

[8]            
Two witnesses saw the accident. Joanne McIldoon was southbound on the
highway that day. She did not testify, but what she saw is the subject of a
formal admission. She passed the FortisBC truck that Mr. Kingsfield was
driving. It was parked beside the highway and she noted that its flashing roof
light was activated. Shortly after that she saw the defendant’s vehicle
proceeding northbound. It was “travelling significantly faster than she would
have expected in the area”. She could not estimate its speed other than to say
that it was travelling above the posted speed limit. She looked in her side-mounted
rear view mirror after the defendant passed her and saw him pull into the
southbound lane where he was struck by the plaintiff’s vehicle.

[9]            
The other witness to the accident was Mr. Royer, the plaintiff’s
colleague. He was driving a four-ton FortisBC truck equipped with a lift
bucket. Mr. Royer confirmed the plan he and the plaintiff had to ensure
that he would be able to find the fruit stand. As a result, as he was
proceeding north on the highway he was watching for Mr. Kingsfield. As he
approached Mr. Kingsfield’s location he saw him stopped beside the road
and noticed his flashing overhead light was activated. He did not pay much if
any attention to the defendant’s vehicle until just before the collision.

[10]        
There is no suggestion that either the defendant or the plaintiff was in
any way impaired by alcohol, drug or lack of sleep.

Analysis

a) Liability

[11]        
The plaintiff argues the collision was due entirely to the defendant’s
negligence; negligence said to consist of driving too fast, passing against a
double solid line and failing to sound his horn or otherwise warn the plaintiff
of his presence. The plaintiff says all of this was done in the face of a
situation which served to elevate the need for care given that the plaintiff’s
vehicle was stopped by the side of the road with its four-way flashers and
overhead amber light activated.

[12]        
The defendant argues that his speed had little if anything to do with
the accident, in part because the plaintiff did not see him at all. He argues
that crossing into the southbound lane was not negligent in these circumstances;
in fact, it was a prudent thing to do given the emergency situation that he
faced as a result of the plaintiff unexpectedly pulling onto the highway in
front of him and then turning left, all without signaling.

[13]        
There is a dispute on the evidence about the circumstances of the
collision. The defendant argues that the plaintiff’s evidence is not worthy of
belief in certain significant aspects. In particular the defendant argues the
plaintiff did not signal his intention to enter the northbound lane, and that
he made his turn into the fruit stand from the shoulder as opposed to from the
northbound lane. Further he argues that there was no reason for the plaintiff
to not see him as he approached. To the extent the plaintiff’s evidence as
given at the trial conflicts with these propositions, the defendant argues his
evidence should not be accorded much weight.

[14]        
I will address the credibility issue first.

[15]        
At trial the plaintiff testified that he pulled off the highway across
from the fruit stand and activated his rotating overhead light and his four-way
flashers. He said he was parked on the shoulder for about 20 or 25 seconds
before he saw Mr. Royer’s truck approaching. Once he saw Mr. Royer
and once he was sure that Mr. Royer saw him, he said he turned off his
four-way flashers, turned on his left turn signal, checked his side mounted
rear view mirror and pulled into the northbound lane. After travelling a very
short distance he began to turn left from the northbound lane. As his vehicle
entered the southbound lane the collision happened. The plaintiff was sure that
he did not make his turn from the northbound shoulder.

[16]        
On cross-examination the plaintiff reiterated that he turned his hazard
lights off and turned his left turn signal on before merging onto the highway.
His examination for discovery evidence was put to him. On discovery he said
that he did not turn his hazard lights off. He was asked if he turned his
signal light on and he said “I don’t think so. I would have had the hazard
lights on”. Mr. Kingsfield agreed that the turn signals and the hazard
lights on the truck he was operating use the same lights, such that if the
hazard lights are on other drivers would not be aware that the turn signal was
activated.

[17]        
 There are two other discrepancies between the plaintiff’s trial
evidence and his examination for discovery evidence that are significant. The
first relates to the amount of gardening and yard work he has been able to do
since the accident. At trial he said that he does not garden any more. In fact
he does not even water the lawn regularly because it causes pain in his back.
He said that his wife does most of the yard work now. On examination for
discovery he was asked about yard work and he said that he did “90 per cent” of
it as of the date of the discovery. His discovery was in May 2011, some 3 and
one-half years after the accident. The second discrepancy relates to housework
and specifically vacuuming. At trial he said that his wife has done most of the
vacuuming since the accident whereas prior to the accident he did about 70 per
cent of it. On examination for discovery he said that since the accident he has
done most of the vacuuming.

[18]        
There are other discrepancies to which the defendant points but I do not
find them significant. For example, the plaintiff gave different estimates, but
not markedly different estimates, of how long he waited on the shoulder prior
to Mr. Royer’s arrival, and gave different estimates of the distance
between where he stopped on the shoulder and a dip or depression in the road to
the south. These are the sorts of things that honest and careful witnesses may
recall differently on different occasions. That is so in part because they are
at best broad estimates about matters that likely were not particularly
significant at the time.

[19]        
Mr. Kingsfield sought to account for some of the frank conflicts between
his trial evidence and his examination for discovery testimony on the basis
that he was not prepared for the discovery. He said he thought it was going to
be a casual conversation about the accident and his condition in its aftermath.
I do not accept that explanation. The examination for discovery took place in
Penticton. Mr. Kingsfield travelled there from Oliver. His lawyer attended
from Vancouver. He knew that he was being questioned by the defendant’s lawyer.
I do not accept that he could have been under any illusion about the
significance of the proceeding. Further, even if he was, it does not account
for the frank contradictions, in some cases twice repeated.

[20]        
I am not able to accept Mr. Kingsfield’s account of the accident as
it relates to whether he signalled his intention to turn left. In reaching this
conclusion I am not to be taken as concluding that Mr. Kingsfield was
lying when he gave his evidence. I suspect that he now genuinely believes the
accident occurred that way. I am not however satisfied that it did.

[21]        
The other evidence important to the circumstances of the collision is
that of Mr. Powers. As noted his evidence is taken from his examination
for discovery. There he described the accident as follows:

I was coming in towards town and
I saw a Fortis truck pull out and going northbound on 97, the same way I was
going, and I felt that he’d pulled out prematurely and that I had to take
evasive manoeuvres in order to avoid rear ending him. And I went around him on
the left, ‘cause I didn’t see — when he pulled out, he stopped, and I thought that
he was going to accelerate to traffic speed. And if he had seen me, he would
have waited until I went by before he pulled out. And I didn’t see a turn
signal or anything, so I passed him to the left, ‘cause I was afraid that he
might pull over onto the shoulder or something, seeing that I was so close. And
when I got, oh, about two-thirds of the way past him, all of a sudden I see out
of my right eye, I see the truck coming, and it hits the front passenger tire
and fender of my car …

[22]        
He initially said that as he approached the plaintiff’s vehicle he was
travelling about 60 kilometers per hour. He said that he accelerated once he
decided that he would pass the plaintiff on the left. He said that if he had
seen a turn signal he would have moved to the right and passed the plaintiff on
the shoulder.

[23]        
I will deal first with what the plaintiff did and failed to do. I find
that when he pulled off the highway to await Mr. Royer he activated his
emergency four-way flashers and the overhead rotating amber light. As to the
latter, Mr. Royer said he saw it as he approached from the south as did Ms. McIloon
who passed in the opposite direction. As to the former, I accept that it was Mr. Kingsfield’s
habit to turn the four-way flashers on when parked beside the road in a company
truck. Mr. Royer confirmed that FortisBC employees do that as a matter of
habit. I find that he did not turn those lights off when he pulled into the
northbound lane. Whether he turned his left turn signal on or not is of no
moment because it would not have been visible to other drivers given that the
four-way flashers were activated. I am satisfied he left his overhead amber
light turned on.

[24]        
As to the manner in which Mr. Kingsfield executed his turn, he was
asked whether he did so from the northbound shoulder. He testified that he did
not do that; rather, he said he merged into the northbound lane, but only
briefly, and then began to turn left. On examination for discovery he testified
that he could not really remember if he had turned from the shoulder or from
the northbound lane. He was asked if he had turned left from the shoulder and
he said “I would probably — would have started from there, yes, once the
traffic was clear”. The other evidence that touches on this issue is that of Mr. Royer.
From his perspective some distance away, he thought that Mr. Kingsfield
had pulled “pretty well straight across the road” from the shoulder. It was
not, in his words, a “gradual turn”. The defendant points to this evidence as a
further example of Mr. Kingsfield’s differing recollections. I do not find
this change, if it is a change, to be significant. I am satisfied that Mr. Kingsfield
pulled first into the northbound lane and then almost immediately began to turn
left across the southbound lane and into the fruit stand. This is consistent
with Mr. Powers’ account and Mr. Kingsfield’s own present
recollection.

[25]        
The next issue is the defendant’s speed. The evidence of Mr. Powers’
speed comes from three sources: Mr. Powers himself, Ms. McIloon, and
the distance it took Mr. Powers to stop following the collision. As to the
latter matter, it is apparent from the photographs that Mr. Powers
travelled some distance down the road after colliding with Mr. Kingsfield.
Precisely how far is impossible to say based on the pictures. There is no
expert evidence interpreting or calculating speed based on the distance it took
the defendant to stop. There is a mark on the road surface that was obviously
created by one of Mr. Powers’ wheels. Mr. Kingsfield believes that it
is a skid mark, and a long skid mark, which suggests Mr. Powers was
travelling very quickly. I am unable to draw any inferences of speed based on
the post-collision movement of Mr. Powers’ vehicle. First, I accept that Mr. Powers
accelerated in the moments before the collision when he realized that Mr. Kingsfield
was going to travel into his lane. Second, Mr. Powers’ right front tire
was deflated in the collision and the mark on the road may be due to that as
opposed to a skidding inflated tire. Finally, absent expert evidence any
conclusion I might draw as to speed based on the length of the marks on the
road would be no more than a guess and an uninformed one at that.

[26]        
That leaves for consideration the evidence of Mr. Powers and Ms. McIloon.
Mr. Powers initially said he thought he was travelling at about 60
kilometers per hour as he approached the plaintiff. He said that when the speed
limit changed from 70 to 50 kilometers per hour he did not brake but he did
take his foot off the accelerator. He later said he was probably travelling
about 70 kilometers per hour as he approached. Ms. McIloon was unable to
give an estimate of speed other than to say that she thought Mr. Powers
was going faster than the speed limit and faster than traffic should have been
travelling on that section of road. Based on this evidence I am satisfied that Mr. Powers
was likely travelling between 65 and 70 kilometers per hour as he approached Mr. Kingsfield’s
vehicle.

[27]        
A further issue is why the plaintiff did not see the defendant
approaching. There is no question that Mr. Kingsfield did not see Mr. Powers
approaching before he pulled into his path of travel. Mr. Kingsfield said
that this failure was not due to any lack of attention on his part but rather
was due to the speed that Mr. Powers was travelling and the configuration
of the road just to the south of Mr. Kingsfield’s position. As to the
configuration of the road, Mr. Kingsfield testified that there is a dip or
depression in the road about 400 feet south of where he stopped. He theorized that
he did not see the defendant’s vehicle because it was in the depression of the
road when he looked, and once it emerged from that blind spot it was travelling
so quickly that it reached his position before he knew it. I have already dealt
with Mr. Powers’ speed. There are two problems with the evidence about the
configuration of the road. The first is that Mr. Royer testified that he
did not think there was a dip or depression in the road at all, but even if
there was it was not deep enough to obscure a vehicle. The second is that on
the plaintiff’s own evidence the dip ended some 400 feet south of his location.
A vehicle would have been visible even farther back than that as it climbed out
of whatever depression there might be. Thus even on the plaintiff’s account, Mr. Powers
would have been visible to him for quite some time as he approached.

[28]        
In these circumstances I am satisfied that both the defendant and the
plaintiff were negligent. The plaintiff was negligent in two respects. First,
he did not signal his intention to enter the northbound lane of travel or his
intention to turn left into the fruit stand in a manner that would have alerted
other drivers of his intentions. Second, he failed to see the defendant, who
was there to be seen and whose presence posed a hazard to his planned
manoeuvre.

[29]        
The defendant was also negligent in two ways. First, he was travelling
too fast for the circumstances. It does not necessarily follow that, simply
because he was exceeding the speed limit, that he was negligent. What matters
is whether his speed amounted to a breach of the standard of care and, if so, whether
it was, in any legally significant way, causative of the collision.

[30]        
There are two matters which are important to the assessment of speed in
relation to this accident. First, Mr. Kingsfield had both his four-way
flashers and his amber overhead light activated. Mr. Royer, who was much
farther away than Mr. Powers, saw the overhead light from his vantage
point. Mr. Powers saw neither. In fact he thought Mr. Kingsfield was
stopped at a cross street perpendicular to the highway. He was wrong about
that, and, I am satisfied, he simply failed to notice the lights that were
activated on the plaintiff’s vehicle. The presence of a vehicle with both an
activated overhead amber light and its four-way flashers on, stopped by the
side of the road, would alert a reasonable driver to the possibility that
something unexpected may happen. A reasonable driver would, I am satisfied,
moderate his or her speed so as to be ready for that possibility. In this sense
Mr. Powers showed a want of care not just by exceeding the speed limit but
by doing so when approaching a vehicle stopped beside the highway with its
emergency lights activated.

[31]        
The other way that Mr. Powers’ speed was significant is that when
the plaintiff pulled out into the northbound lane in front of him he was, by
his own estimate, still three or four seconds away from the plaintiff. It was
not a situation in which the defendant had no chance to react. He had a chance
to react and he would have had a much greater chance had he been travelling
more slowly.

[32]        
The second manner in which the defendant was negligent was in failing to
sound his horn. It ought to have been apparent to Mr. Powers that the
plaintiff had not seen him approaching or at least that was a reasonable
assumption on which to proceed. He had time to sound his horn, in fact he
eventually did but only when he was abreast of Mr. Kingsfield’s vehicle
and by then it was too late.

[33]        
Counsel for the defendant argued that the circumstances in this case are
similar to those in Hough v. Wyatt, 2010 BCSC 1375; Mudry v. Minhas,
2010 BCSC 637; and Gosal v. Singh, 2009 BCSC 1471. He also argued that
the defendant was the dominant driver, as that notion was explained in Walker
v. Brownlee and Harmon, [1952] 2 D.L.R. 450 (S.C.C.).

[34]        
In Walker at 461 Cartwright J. commented on the analysis to be
applied in relation to accidents in which a dominant driver seeks to cast blame
on a serviant driver. To paraphrase the analysis, when a servient driver (in
this case Mr. Kingsfield) proceeds in disregard of his statutory duty to
yield the right-of-way to the dominant driver (Mr. Powers) and a collision
results, if the servient driver seeks to blame the dominant driver, the
servient driver must establish that, 1) after the dominant driver became aware,
or should have become aware, of the servient driver’s disregard for the law,
the dominant driver had an opportunity to avoid the accident and, 2) that a
reasonably careful and skillful driver would have taken that opportunity. The
serviant driver has the onus of proving both matters. For the reasons just
given I am satisfied that the plaintiff has established both of these
propositions.

[35]        
In Hough the defendant was southbound on 168th Street in Surrey.
He pulled off on the right shoulder and stopped. He planned to make a u-turn.
The plaintiff was also southbound on 168th Street. The defendant did not see
the plaintiff approaching and abruptly turned in front of him. He did so with
such acceleration that he left skid marks on the road. It is unclear whether
the defendant had his signal light activated but it did not particularly matter
because Dillon J. found that the defendant’s manoeuvre was such that the
plaintiff had no opportunity to avoid the collision. There, as here, the
argument was advanced that the dominant driver was speeding. Dillon J. found
that the plaintiff’s speed was not excessive and did not cause or contribute to
the collision. She found the left turning driver entirely at fault. In Mudry
the plaintiff was behind the defendant as both drivers were proceeding
westbound along a street in Nanaimo. The defendant pulled off onto the right
shoulder and then, without signalling, pulled back into the westbound lane, in
front of the plaintiff, and attempted to complete a u-turn. The plaintiff
braked and geared down but struck the defendant. There was no suggestion that
the plaintiff was speeding. The defendant was found to be entirely at fault for
the collision.

[36]        
There are two significant distinctions between the circumstances in Hough
and Mudry and the case at bar. First, although the plaintiff did not
signal his intention to return to the northbound lane from the shoulder, he did
have various emergency lights activated. Second, the defendant was speeding and
his speed was causally related to the accident in the manner I discussed above.

[37]        
The plaintiff on the other hand likens this situation to that in Smith
v. Bileck, 2006 BCSC 989; Pipe v. Dusome, 2007 BCSC 1066; and Eccleston v. Dresen, 2009 BCSC 332. I
considered Bileck and Pipe in Eccleston . As to Bileck,
I wrote at para. 32 of Eccleston that:

 [i]n
Bileck, the driver intending to turn left was struck by the
defendant who was attempting to pass. The accident happened on a paved
two-lane stretch of rural road. The left-turning driver had noticed the
defendant some distance behind him when he last checked for following traffic.
He did not check again for some time before activating his turn signal which he
did shortly before initiating a left turn into a driveway. The overtaking
vehicle was speeding. On his own evidence, the driver of the overtaking vehicle
did not know what the other vehicle was going to do when he began to pass,
although it was apparent to him that the vehicle was going to do something. To
pass in those circumstances, especially when speeding, was negligent. The
driver of the left-turning vehicle was also negligent for not checking for
following traffic before turning and for not activating his turn signal in a
timely manner. Williamson J. apportioned liability 75 percent to the overtaking
vehicle and 25 percent to the left-turning vehicle.

As to Pipe, I noted the
following at para. 29 of Eccleston:

 The
plaintiff in Pipe was riding a motorcycle on a city street
following the defendant who was driving a pick-up truck. As the defendant
approached the driveway into which he was intending to turn left, he slowed
rather abruptly and checked his rearview mirror and saw the plaintiff behind
him. He then activated his left turn signal, but unknown to him, it was not
working. He did not check his side mirror before initiating his turn. The
plaintiff noted the defendant slowing down and pulling slightly to the right.
He saw the right, but not the left, brake light illuminate and assumed the
defendant was going to turn right. The plaintiff then pulled out to pass. In
these circumstances, Dillon J. apportioned liability 80 percent to the
left-turning vehicle and 20 percent to the overtaking plaintiff. The overtaking
driver’s negligence lay in not ensuring the pass could be made in safety,
contrary to s. 159 of the Motor Vehicle Act. He was
uncertain as to what the vehicle he was overtaking was going to do when he
decided to pass. He also failed to sound his horn. The left-turning
driver’s liability rested on his failure to ensure that he could make his turn
safely. He did not signal (or signal effectively), did not move his vehicle to
the left of his lane, and did not check his side rearview mirror before
turning.

[38]        
In Eccleston the plaintiff was turning left and the defendant was
following behind her. The circumstances and result are set out at para. 46
of the decision:

 I
find that the negligence of both drivers was significant. I am of the view that
the plaintiff’s negligence was greater than that of the defendant in that
failing to signal in a timely way, and failing to keep a proper look out when
turning left off of a highway at a point where passing is permitted, is
significantly negligent. The defendant’s negligence, while not insignificant,
was not as serious as that of the plaintiff. She was obliged to ascertain with
reasonable certainty what the plaintiff was going to do; that, too, was all the
more important when events were unfolding while she was driving at highway
speed. Her failure to sound the horn, while a breach of the standard of care in
the circumstances, was a breach that occurred in seconds and was, in part, made
necessary by the plaintiff’s conduct. In the result, I apportion liability
60 percent to the plaintiff and 40 percent to the defendant.

[39]        
In the case at hand, the plaintiff’s negligence was more significant
than that of the defendant. He failed to see the defendant at all and he failed
to signal his intention to return to the northbound lane. The defendant was
negligent in driving at the speed he was when he was approaching a vehicle that
had its emergency lights activated. He was also negligent in failing to sound
his horn to warn the plaintiff of his presence when it ought to have been
obvious to him that the plaintiff did not see him. I recognize that the
defendant also crossed a double solid line in passing the plaintiff. I do not
find that circumstance to be of significance to the analysis. Because of the
speed he was travelling and the unsafe manner in which the plaintiff returned
to the northbound lane, the defendant was faced with an emergency. His options
were limited and he selected one which was at least as reasonable as the others
open to him. In short, by the point that the defendant needed to take evasive
action, the dye had been cast.

[40]        
The plaintiff’s responsibility in this case is greater than that of the
plaintiff in Eccleston, in part because the plaintiff in Eccleston
was on the travelled portion of the road when she failed to signal her turn and
failed to see the defendant behind her. She had been visible to the defendant
for a considerable time prior to the collision. On the other hand his
negligence was not as great as that of the left turning driver in Pipe.
That driver had created the false impression that he was going to turn right
and then abruptly turned left while the plaintiff was in the process of
passing. I apportion liability for this accident 75 percent to the plaintiff
and 25 percent to the defendant.

b) Damages

[41]        
There are two main issues in relation to damages. The first is whether
the plaintiff’s ongoing low back complaints are causally related to the
accident or whether they are due to some non-tortious cause. The second issue
relates to mitigation.

[42]        
The plaintiff is 55 years old. He was 51 at the time of the accident. He
is employed by FortisBC as a power line technician or lineman. He has worked as
a lineman since he was 17. He is married and has three adult daughters. His job
is physically demanding. In November 2007 he was a “lead hand”, and while the
tasks he was asked to perform varied, they often involved climbing power poles while
carrying a tool belt and doing the lifting associated with the repair or installation
of those poles. In mid-2009 Mr. Kingsfield became a crew lead and his
duties changed. He is now more involved in organizing the work that his crew is
required to complete and, as a result, he does more office work and less physical
labour. In addition, he has more ability to assign tasks within the crew and
thus can take some of the less physically demanding jobs himself. Even with
those changes the job remains physically demanding.

[43]        
Although the plaintiff now believes he may have briefly lost
consciousness in the accident, he did not initially think so and in fact on
examination for discovery said that he did not. I am satisfied he did not
lose consciousness. He did suffer a bruise to his chest from the seatbelt
and he experienced some shortness of breath while that healed. His abdomen was
also sore. His chest healed within a week or so and his abdominal pain resolved
a few weeks after that. He had pain in his neck which persisted for several
months, likely until June of 2008. He went to physiotherapy some 13 times
between the date of the accident and perhaps mid-February 2008. He also had
headaches following the accident. They persisted until his physiotherapist administered
an acupuncture treatment. Mr. Kingsfield is skeptical of acupuncture but
in this instance, somewhat to his surprise, it seemed to work. For some time
following the physiotherapy treatments Mr. Kingsfield went to massage
therapy. These sessions were paid for by his employer. When FortisBC said it
would not pay for any further treatments, and when Mr. Kingsfield lost his
appeal of that decision, he stopped going.

[44]        
His on-going complaint is pain in his low back. The issue is whether
that pain is the result of the accident.

[45]        
The plaintiff’s general practitioner referred him to Dr. Shawn
McCann, a physical medicine and rehabilitation specialist. Dr. McCann
prepared a report setting out his opinion regarding the likely cause of the
plaintiff’s low back pain. He saw Mr. Kingsfield on January 5, July 11 and
November 15, 2011. He examined the various X-rays that had been taken at the
hospital on the day of the accident and others that were taken on November 20,
2007. Dr. McCann sent Mr. Kingsfield for a CT scan which was
performed on February 24, 2011. That scan revealed:

…degenerative changes
consistent with mild disc degeneration at a number of levels as well as a small
disc bulge at L5-S1 which is central and seems to be slightly impinging on the
S1 nerve roots. There is also some mild facet degeneration at the L5-S1 level.

[46]        
Dr. McCann concluded that the plaintiff was suffering from
mechanical low back pain. In his report of November 15, 2011, he wrote that the
plaintiff had suffered a type II whiplash associated disorder (using the Quebec
Task Force classification of such injuries). His opinion was based on three
things: the fact that Mr. Kingsfield presented with consistent symptoms suggestive
of the diagnosis; the assumption that there were significant forces involved in
the accident, and the assumption that Mr. Kingsfield’s low back pain began
immediately following the accident. He based this latter assumption on the
plaintiff’s self report. Dr. Francis is the plaintiff’s family doctor. Dr. McCann
did not have Dr. Francis’s clinical records nor did he have the emergency
room chart when he prepared his report and formed his opinions.

[47]        
Dr. McCann was cross-examined in a video deposition just prior to
the trial. He was asked about the typical course of a soft tissue injury like
the one he diagnosed in the plaintiff. He said that ordinarily a patient will
complain of pain within hours, but perhaps as long as 12 to 24 hours, after the
trauma. A smaller portion of patients will experience some discomfort initially
but not experience a significant worsening for four or five days. Dr. McCann
put the outer limit of the onset of significant pain at one week. He said it
would be unusual for someone to start complaining of significant pain two or
three weeks after the event. That would not, in his experience and in his
opinion, be normal. He said that many individuals may have a normal range of
motion in the injured area during the first 12 hours following the trauma but
then they will stiffen and have a reduced range of motion thereafter.

[48]        
The plaintiff went to the hospital following the accident and was seen
by an emergency room physician. He went home for the weekend during which he
felt generally unwell. He saw Dr. Francis on Monday, November 19, 2007. The
emergency room records relating to the plaintiff’s attendance following the
accident contain no reference to low back pain nor do Dr. Francis’s
clinical records for the plaintiff’s November 19, 2007 visit. Dr. Francis
ordered X-rays as a result of that examination but only of the plaintiff’s
thoracic spine. He saw the plaintiff on December 19, 2007, at which point he
pronounced Mr. Kingsfield fit to return to work. In the course of that
examination the doctor noted that Mr. Kingsfield’s range of motion in his
upper, mid and lower back was normal. These records were put to Dr. McCann
on cross-examination. He said that he would have expected some decrease in Mr. Kingsfield’s
range of motion on the December 19 examination. It was not normal, in Dr. McCann’s
experience and opinion, for a patient to have full range of motion a month
after experiencing a trauma and then to have restrictions and pain six months
later.

[49]        
According to Dr. McCann, the images taken of the plaintiff’s low
back show moderate degenerative disc disease at the L5-S1 level as well as a
mild disc bulge at that level. Further, they show mild degenerative facet
changes at that level. The plaintiff’s protrusions at the L5-S1 level are
circumferential in shape. Dr. McCann said protrusions of that shape are more
suggestive of degenerative change than they are of traumatic injury. Initially Dr. McCann
thought the plaintiff’s pain was primarily from the facet degeneration. He
ordered injection nerve blocks to attempt to relieve it. Mr. Kingsfield
had two such injections and neither gave significant relief. Because of that Dr. McCann
concluded that the source of the plaintiff’s pain was either from the disc
bulge or that it is from the muscles, tendons and ligaments in the lumbar
spine.

[50]        
Ultimately Dr. McCann said that:

I think what is fair to say is
that I was under the impression that he had significant complaints of pain
immediately following the motor vehicle accident which on review of Dr. Francis’s
notes it just doesn’t appear to be true…so my whole conclusion on causation
would definitely change now that I’ve had access to these notes. So…backing
away from my original assumptions which may not be true…you have a gentleman
with some mild degenerative changes that probably [preceded] the accident…

[51]        
The plaintiff was seen by another physical medicine and rehabilitation
specialist, Dr. John Coghlan. He shared Dr. McCann’s opinion that the
plaintiff’s disc bulge was circumferential in shape and that because of that it
was likely due to degenerative changes. He said that if the plaintiff’s low
back pain was due to trauma sustained in the accident, he would have expected
pain and associated symptoms within the first few days, if not almost
immediately. Finally, Dr. Coghlan is of the opinion that whatever the
pathological origin of Mr. Kingsfield’s pain, it did not justify the
degree of dysfunction he was reporting.

[52]        
The issue is whether the plaintiff has established that it is more
likely than not that the low back pain he continues to experience is due to
trauma from the accident. I am not satisfied that the plaintiff has established
this proposition. I reach this conclusion for three reasons.

[53]        
First, the plaintiff’s low back pain did not manifest itself
within the time frame expected had it been caused by the accident. I recognize
that the time frames that both Dr. McCann and Dr. Coghlan described are
not hard and fast rules, but rather represent the general diagnostic guidelines
of the expected course or evolution of an injury. That said, however, the
greater the time between the trauma and the outer limit of the expected
development of pain, the less likely it is that the source of the pain is the
trauma. Aside from Mr. Kingsfield’s memory of his back pain, the evidence
of its course is in the clinical records of Dr. Francis. Those show that on
November 19, 2007, three days after the motor vehicle accident, Mr. Kingsfield
complained of pain in his neck and thoracic spine, which Dr. Francis
localized to the T5-T7 area but made no mention of low back concerns. Given
this history Dr. Francis measured Mr. Kingsfield’s range of motion in
his cervical spine, and found it to be normal on active testing but restricted
on passive testing. He ordered an X-ray of the thoracic spine but none of the
lumbar spine. The next visit Mr. Kingsfield made to Dr. Francis was
on November 26, 2007. The chart record for that visit is not in evidence but it
is referred to by Dr. Coghlan in his report. He wrote that on that day the
plaintiff

…was complaining of pain in his upper and lower back, his
posterior neck and pain in both shoulders. He was experiencing daily headaches.
His testing revealed restriction of mobility in all areas of the spine. …

Taking November 26, 2007 as the date onset of the low back
pain it is only just beyond the outer limit of what the medical evidence suggests
is the norm. Standing alone this might not be determinative.

[54]        
The second matter is relates to the range of motion that Mr. Kingsfield
had on December 19, 2007 and the range of motion he had some six months later
in June 2008. On December 19, 2007 Dr. Francis examined Mr. Kingsfield’s
neck, chest and back. He found the range of motion of all areas of the spine,
including the lumbar spine, to be normal. On June 5, 2008 when Dr. Francis
next measured Mr. Kingsfield’s range of motion in his lower back he found
it to be about half of normal. This according to Dr. McCann is not the
usual course of such injuries.

[55]        
The third matter is the physical appearance of the disc bulges at the
area of the spine which is causing Mr. Kingsfield’s pain. They are consistent
with degenerative changes as opposed to trauma. Degenerative changes in people
of Mr. Kingsfield’s age are common; moreover as Barry Radies, a long-time
FortisBC employee, put it, back problems are an occupational hazard in the
industry.

[56]        
For the reasons I noted in dealing with the issue of liability, I find
the inconsistencies in the plaintiff’s evidence at trial and his evidence on
examination for discovery to be troubling. In the result, I am unable to place
much weight on Mr. Kingsfield’s evidence at trial that he felt pain in his
low back almost continuously since shortly after the accident.

[57]        
It follows from the foregoing that I am not satisfied that the on-going
low back problems that Mr. Kingsfield is experiencing are causally related
to the injuries he sustained in the motor vehicle accident.

[58]        
The next issue is an assessment of Mr. Kingsfield’s other injuries.
They gave rise to fairly significant pain and discomfort for the first month
after the accident. He was unable to do his job during that time, and when he did
return to work it was to light duties for about six weeks. He continued to
experience headaches until approximately mid-March and his neck was painful
beyond that, perhaps until June 2008, some seven months after the accident.
During this time his injuries did affect his life. He had difficulty sleeping,
did not continue with his recreational activities, curling in particular, and
generally felt poorly.

[59]        
The cases of Dolha v. Heft, 2011 BCSC 738; Morales v. Neilson,
2009 BCSC 1890; and De Leon v. Harold, 2010 BCSC 1802, are instructive
in terms of quantum. All involved soft tissue injuries that resolved within a
year. In Dolha the plaintiff’s significant injury was to her back and
neck. Those injuries resolved within six to nine months following the accident.
She was awarded $10,000 in non-pecuniary damages. In Morales the
plaintiff suffered soft tissue injuries to his shoulder, neck and back. While
those injuries limited his activities somewhat he was able to work seven days a
week in a physically demanding job since the accident. His injuries were all
resolved by a year post-accident. He was awarded $11,000 in non-pecuniary
damages. In De Leon, the stoic plaintiff suffered soft tissue injuries
which, due to her active participation, resolved substantially within two
months of the accident and almost entirely within six months. She was awarded
non-pecuniary damages of $12,000.

[60]        
I am of the view that an appropriate award of non-pecuniary damages in
this case is $12,000. Mr. Kingsfield’s injuries significantly affected his
life, including how he performed at work. Although he is entitled to
compensation for past wage loss, I accept that the plaintiff takes pride in
being able to do his job and his inability to do it was a source of significant
anxiety while he awaited the resolution of his injuries.

[61]        
The parties have agreed that the plaintiff is entitled to special
damages of $1,008.26 and past wage loss of $2,679.23.

[62]        
I turn now to the question of mitigation. The defendant argues that the
plaintiff failed to mitigate his damages by not losing weight as his medical
advisors repeatedly suggested he do, by not exercising at the frequency and to
the extent those same advisors have suggested, and by not continuing with
massage therapy in the spring of 2008 notwithstanding that his employer had
declined further coverage. Had I found that the plaintiff’s low back problems
were casually related to the accident I would have found some merit in the
first two bases on which this contention rests. Neither of them however would
have had any impact on the plaintiff’s recovery during the limited time he was
disabled. I am not therefore satisfied that the defendant has proven a failure
to mitigate.

Conclusion

[63]        
In the result the plaintiff is entitled to judgment in the following
amounts:

a)    non-pecuniary
damages – $3,000 (25 percent of $12,000);

b)    past wage loss –
$669.80 (25 percent of $2,679.23); and

c)     special
damages – $252 (25 percent of $1,008.26).

[64]        
The parties are at liberty to apply in relation to the question of
costs.

“G.M.
Barrow J.”
The Honourable Mr. Justice Barrow