IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120810

Docket: S088420

Registry:
Vancouver

Between:

John Witt

Plaintiff

And

Vancouver
International Airport Authority,
SNC-Lavalin Inc., Canada Line Rapid Transit Inc.,
Intransit BC Limited Partnership,
Intransit British Columbia GP Ltd.,
Tyam Construction Ltd.

Defendants

Before:
The Honourable Mr. Justice Burnyeat

Reasons for Judgment
(from Trial)

[1]          
Mr. Witt is a fire truck salesman.  He claims damages for losses he
suffered as a result of an incident (“Fall”) at the Vancouver International
Airport (“Airport”) on December 8, 2006.  Mr. Witt states that he stepped
through a gap between two metal plates on the roadway as he was walking towards
a shuttle bus that would take him to his vehicle which was parked in a
long-term parking lot.  The metal plates were in place on a temporary basis as
construction proceeded on the Canada Line construction at the Airport.  The
work at this particular area involved the relocation of underground utilities
with the metal plates covering the gravel that had been placed over the
excavated area to create a temporary roadway to cover the work being undertaken.

[2]          
SNC-Lavalin Inc. (“Lavalin”) was the prime contractor on the job
responsible to design, build and construct the Canada Line.  Tyam Construction
Ltd. (“Tyam”) was a subcontractor responsible for the relocation of the
underground utilities.

[3]          
As a result of the alleged negligence of the Defendants, Mr. Witt
claims damages for injuries suffered to his hips, legs and knees and claims
that the injuries have and will continue to cause him suffering.  As well,
Mr. Witt claims that he will be more susceptible to future injury and
degenerative changes because of the injuries.

[4]          
In their Statement of Defence, the Defendants deny that they owed
Mr. Witt a duty of care, that the area was “reasonably safe for the use of
persons” and did not constitute a “trap, dangerous condition, concealed danger
or unusual danger”, and that they acted in accordance with the standard
practice of reasonably prudent contractors, employees, bus companies and/or
transportation centres prevailing at the time and in all of the circumstances. 
The Defendants also state that the injury and loss claimed by Mr. Witt was
caused by or contributed to by his own negligence and, in any event, Mr. Witt
has failed to mitigate his damages.

THE INCIDENT

[5]          
At his Examination for Discovery, Mr. Witt described what occurred
as follows:

We were in a pedestrian walkway, but weren’t in the
crosswalk, the roadway, you know, like because remember the traffic used to go
– like the taxis would go here, and then there was more of a pathway to the
other road that the commercial vehicles could use, so it was not a crosswalk,
but it was a pedestrian thoroughfare.

We were walking across the
sidewalk – or across the crosswalk towards the bus.  The bus had pulled in, and
all of a sudden my right leg went through the – the plates had moved, and I
heard, when the bus come in, there was a “Thump, thump, thump, thump.”  You
know what these big steel plates look like, you’ve got pictures in your stuff,
these big steel plates cover excavation work on roadways, and they’re normally
secured down so that traffic can drive over them to support the weight.  I
heard the “Thump, thump, thump, thump” and there were steel plates, and then
all of a sudden this leg went through the hole between the two plates.

[6]          
I record Mr. Witt as stating at Trial:  “were talking and walking
across sidewalk.”  “Heard the bang, bang of the steel plates.”  “I stepped
back.  My right leg went into the steel plates.”  “Right leg in the hole.” 
“Fell to my left.”  “Left knee hit the plate.”  “Pulled my leg up through the
hole.”  When asked how far his leg went into the hole, he stated:  “Almost a
foot it seemed.”  “Don’t know if I touched bottom.”  “Landed on knee falling to
my left.”  On his cross-examination at Trial, Mr. Witt stated that the
area was “not well lit”.  He confirmed that he was speaking with one of his
companions at the time and that he was “walking at a brisk pace”.  As to
whether or not he was walking in a straight line, he stated at Trial:  “Could
have been walking in a straight line back to the end of the bus.”

[7]          
There is a discrepancy between what Mr. Witt stated at his Discovery and
some of what he stated at Trial.  At his Discovery, Mr. Witt stated that he was
walking towards the back of the bus whereas, at Trial, he stated that he was
walking to the back of the bus and then took a step backwards.  It was put to
him in cross-examination that he was only changing his testimony because he was
aware that the bus driver would be testifying that he was stepping backwards. 
When it was put to him that the bus driver would state that he took several
steps back and that his foot was on the edge of the plate when he lost balance,
Mr. Witt stated:  “That may be possible.”

[8]          
Mr. Witt confirmed at Trial that he knew that the plates were on
the road, that the road surface was not flat, and that the thickness of the
plates was above the ground.  “It was dark – knew the plate was there but not
the gap.”  “I didn’t look at the ground – didn’t think I had to.” 
Mr. Witt was asked whether he saw the gap prior to the Fall and he
responded:  “Not at all.  And there are no markings, you know, like saying ‘go
this way’ or ‘be careful’.”

[9]          
As a result of the Fall, Mr. Witt described what happened to the
telescoping handle on his luggage as follows “pushed it down and bent it”.  He
described his right leg as scraped, “lower leg hurt at first”, “lower back,
left knee from hitting knee”.

[10]       
Geoff Robey was the park and fly bus driver that night.  Mr. Robey
stated that it was not difficult to see the plates, that they were approximately
a half inch thick and that they were 6 to 8 feet square.  He stated
that the lighting was fluorescent lights and that you could “see the ground”.

[11]       
Mr. Robey stated that Mr. Witt was waiting as the bus pulled
up.  Mr. Robey opened the side door and asked those waiting to go to the
back of the bus so that he could load their bags.  Mr. Robey exited the bus,
went to the back of the bus, and asked Mr. Witt to hand him his bag.  I
record Mr. Robey as stating:  “He came onto the roadway to do so, he handed me
his bag, he took several steps backward, his shoe went between two plates, went
in three-quarters of the way, he caught himself from losing his footing, he
straightened up, I asked if he was okay.”  “He walked over the sidewalk and got
onto the bus.”  He stated that Mr. Witt did not fall and that his leg did
not disappear into the gap between the plates.  Mr. Robey was asked how
far Mr. Witt’s foot went down into the gap and he indicated that he
couldn’t estimate that.  He was asked whether he could see the gap clearly, and
he responded “yes”.  He could not remember whether Mr. Witt was limping
when he got onto the bus.

[12]       
Mr. Robey filed a “vehicle accident report” indicating that the
time of the accident was 21:15, that the conditions were “dry”, and that the
“Type of Road Surface” was “metal”.  He described the two metal plates as being
approximately 10 inches apart.  His description of the accident included
the following:

I asked about 5 passengers
to take their bags to the rear door of the bus so I could load them into the
back.  Mr. Witt carried his bags onto the road and stepped between two of
the metal plates.  One leg went between the metal plates (approx. 1 foot
in length) and his left leg took his weight.  Mr. Witt could walk but had
pain in his foot and lower back.

[13]       
Charles Salmon was the safety advisor for Lavalin assigned to the Canada
Line Project.  Mr. Salmon went to the location of the Fall the morning
after it had been reported to him.  At Trial, Mr. Salmon was asked whether
he had taken photographs of the scene, and he stated, “I’m not sure”.  At his Examination
for Discovery, Mr. Salmon was asked whether the scene “had changed”, and
he stated:  “I think my understanding is that they put cones in the area as a
temporary measure.”

[14]       
Mr. Salmon described the metal plates as being 4 feet by 8 feet wide,
“of extremely thick steel”.  He indicated that the plates covered what had been
an excavation that had been backfilled.  At his Discovery, Mr. Salmon
stated that the plates were performing the following function:  “For
smoothness, shall we say, so that the vehicles didn’t have to drive – they will
create potholes in the gravel, so we put the plates in over the gravel
component to transition the vehicles over the excavation component until we can
get the blacktop in.”  At his Discovery, Mr. Salmon was also asked the
following questions and gave the following answers:

Q         When you looked at the area that next morning,
did you see any gaps between any metal plates?

A          Yes, I did.

Q         A number or just one?

A          Just one, as far as I can remember, yes, just
one.

Q         Were you able to determine approximately the
length or the width of the gap between the two metal plates?

A          About eight
inches, six to eight inches.

[15]       
After the incident, Mr. Salmon prepared a “Corrective &
Preventive Action Request”, noting that a photograph had been taken and noting
the following under the heading “What is the Problem?”:  “Statement of
Non-Conformance/Observation:  Separation of road plates, causing a Fall
hazard”  “Attribute:  Secure protection of public in construction zones”, as
well as the following under the heading “What caused the Problem?”:  “Root
cause:  Plates not secured”.  “Contributing factors:  Overlapping of plates and
voids below plates allowing plates to shift.”  The photograph referred to by
Mr. Salmon was not in evidence.

[16]       
Mr. Salmon stated that the plates would be secured as follows: 
“Pinning, long stakes that are driven through them with a cap on the top, like
a nail”.  Regarding the shifting of the plates, Mr. Salmon stated that it
was caused as follows:  “Basically, the volume of traffic and the weight of
them caused the plates to shift or move around.”  Mr. Salmon confirmed
that it was his recommendations relating to the short term corrective action
and the long term corrective action which were set out in the “Request”.  Mr. Salmon
was not aware whether any previous complaints about the metal plates had been
received.

[17]       
Regarding the monitoring and inspection procedure that was put in place
by the Airport, Mr. Salmon was asked the following questions and gave the
following answers at his Discovery:

Q         Do you know what kind of monitoring YVR [the
Airport Authority] did of the work that was done on the roadway?

A          Very frequent. They had all – they were
24-hour operation, and they had all kinds of bodies that continuously monitored
the access/egress for the customers of YVR.

Q         So they monitored how the construction was
impacting on the access and egress of the customers using YVR?

A          Not just monitored. They were actively
involved in co-ordinating that.

Q         So if YVR had a concern about Tyam’s
operations in the utility-relocation project, would they approach Tyam directly
or would they go through you?

A          No.  The
reporting relationship was to come to us.  …

[18]       
Regarding what occurred after the incident involving Mr. Witt, Mr.
Salmon was asked the following question and gave the following answer at his
Discovery:

Q         After this incident occurred, were bus stops
moved as a result of work that would take place on the L1 roadway?

A          After this
incident I am aware that the bus stop was relocated, the reasoning I am not
aware of.

THE AFTERMATH AND TREATMENT SOUGHT

[19]       
Mr. Witt was driven to the long term parking area, helped to his
vehicle by a colleague and driven to his home.  Mr. Witt stated that he
was helped to the door and went to bed as “I was hurting”.  He stated that he
did not sleep very well as he was “hurting from the waist down”.

[20]       
He stated at Trial that he could “hardly stand” the next morning.  Mr. Witt
went to a chiropractor at about 11:00 a.m.  In the office of the
chiropractor, Mr. Witt stated that he was walking towards the counter and
that he just collapsed.

[21]       
Over the course of the past four years, Mr. Witt did not pursue any form
of treatment other than to go to his chiropractor in the year following the
Fall and three visits to his chiropractor in January and February of 2009. 
Regarding the visits to his chiropractor, Mr. Witt stated at Trial that he saw
him:  “a couple of times when my back was hurting” “now my back – was lower
that was hurting”.  Mr. Witt did not see his chiropractor in 2011.

[22]       
Mr. Witt attended for a general health assessment at the Copeman
Healthcare Centre in July, 2010 but has not sought any form of treatment since
being assessed there.  Mr. Witt stated that the last time he saw his family
doctor was in December, 2007.

[23]       
On February 25, 2008, Mr. Witt was seen by Dr. Robert McCormack, an
orthopedic specialist.  Dr. McCormack arranged for Mr. Witt to have knee
surgery in a private clinic.  The surgery did not proceed at the private clinic
as Mr. Witt suffers from sleep apnea which can present complications not easily
dealt with at a private clinic.  Despite knowing that he could have the
procedure in a hospital and having had four telephone messages left for him by
the office of Dr. McCormack attempting to reschedule the recommended surgery,
Mr. Witt has not attempted to schedule the surgery.

EFFECTS OF THE FALL

[24]       
At trial, Ms. Witt described Mr. Witt as being on medication all of the
time, as losing his train of thought when he is speaking, as often falling asleep
at the dinner table, and as not sleeping well at night because “he moans a lot
– almost crying” as he is trying to find a position where he can be comfortable
in bed.  Ms. Witt testified that her husband was very active before the Fall
and healthy enough to keep up with her in golfing, hiking, and tennis despite
being overweight.  She indicated that she was always aware that she would be
number 2 behind his interest in his business.  Ms. Witt stated that
she has now told him that he is a nice man sometimes and mean most of the time whereas
previously he was a mean man sometimes and nice most of the time.  She
indicated that they now have independent lives and that they were “strangers in
our own relationship”, “since he is in pain all the time.”

[25]       
At his Discovery, Mr. Witt was asked how the Fall had impacted his
life and he answered:

It’s made my life hell.  I used
to be head of the pack.  If we were travelling somewhere, I would be a block
ahead of my wife and everybody else because I had no impairment, no problems
walking, and now I’m the tail end.  I walk with a gait quite often, almost all
the time, some more severe than others.  It’s affected now my hips, pain going
up stairs, down stairs, the fear of, you know, falling because it’s present.

[26]       
At Trial, Mr. Witt described himself as previously having “no health
problems”.  “I could out-walk everyone.”  He described his energy level as: 
“Fine – I was go, go, go.”  Mr. Witt stated that he previously enjoyed
golf, walking the dogs and going to the Caribbean in the winter but that he is now
“not happy to be in a crowd”, “just want to sit”, “not make love in four years
since the accident”, “his wife will plan smaller trips so not with as many
people” and “with the dogs, I only take a short walk, about a half block
only”.  He stated that he should lose weight but cannot as “you can’t exercise
when you hurt all over, 24/7”.  He also stated: “Sometimes needs help to get up”. 
In his job, he stated, “used to be fun – not fun anymore”.

[27]       
At Trial, Mr. Witt stated that he has had several falls at home as
he “lost strength and collapsed”.  He also indicates that he had a fall at the
airport as he was entering a washroom.  He indicated that he broke his left
humerus bone.  He was taken to Richmond General Hospital where they put his
right arm in a sling.  He had his arm in a sling for about a month or two.  He
indicated that there is no residual problem with his right arm after about two
months.

[28]       
Mr. Witt also stated at Trial:  “Couldn’t sit in one position without
being uncomfortable.”  “Constant pain.”  Mr. Witt stated that there was
improvement by May 2007, “not really constantly hurting”.  However, he
indicated, “In pain, not reply to telephone or emails within an hour like I
used to.”  In 2008, he described himself as “in constant pain, 24/7”.  “Even
just sitting – hurt all of the time.”  Mr. Witt described his health in
2009 as follows:  “I still hurt all of the time.”  “Not walking comfortably at
any time.”  “Good days – with difficulty.”  “Bad days – can hardly walk.”  “I
couldn’t remember deals or promises made on specifications – I’d almost sit and
cry.”  At Trial under cross-examination, Mr. Witt was asked whether the
accident affected his quality of life and he answered:  “Yes, sometimes.”

[29]       
Regarding what has been recommended by various medical specialists, Mr.
Witt confirmed that none of the recommended courses of actions has been
undertaken by him.  Regarding the use of pain killers, he described that Percocet
“put me in a fog” so that it was difficult for him to concentrate on numbers in
his business so he discontinued using it.

TESTIMONY OF THE MEDICAL EXPERTS

[30]       
Dr. William Craig was qualified as an expert to give an opinion in
physical medicine and rehabilitation.  Mr. Witt was assessed on
July 23, 2010 and Dr. Craig provided a July 29, 2010 report describing
the “current symptoms” of Mr. Witt as follows:

Back: His back pain has mostly settled. He has the occasional
low back pain when his leg pain has flared.

Right Hip: He describes pain in the groin. If he is sitting
there is minimal discomfort. Symptoms are provoked with weightbearing, walking
and stairs. This pain can be severe at times. He notes that he tends to stand
now with the right hip flexed.

Right Knee: He has episodic activity-related pain. This is
centered in the kneecap. It is aggravated by weightbearing. There is no
swelling, popping, grinding or locking. At times it feels unstable.

Legs: His legs will give out on
him particularly when walking on grades or up or down stairs. He has had a number
of falls as a result. Leg pain is worse in the anterior shins but he has pain
elsewhere. Symptoms are provoked by prolonged sitting and activity. There is
occasional numbness around his ankles and tingling in this distribution. There
is occasional pain in the back of his heels.

[31]       
Dr. Craig was of the opinion that Mr. Witt had an “acute low
back injury” as a result of the Fall.  Regarding the complaints relating to the
back, right hip, right knee, and leg pain, Dr. Craig expressed the
following opinion:

Back: It is my opinion that Mr. Witt had an acute low
back injury as a result of his Fall on December 8, 2006 accident. With the
sudden acute onset of pain that rapidly progressed over 24 hours, a lumbosacral
disc injury is on the differential. Given his congenital stenosis, he would
have been at increased risk of developing symptomatic stenosis from a disc
herniation.

He likely also had some pre-existing facet joint
osteoarthritis based on facet changes that were already noted by
February 13, 2007 in the MRI. Again this would have made him more
susceptible to developing symptomatic spinal stenosis from a disc injury. He
was reporting left leg symptoms by the day after the December 8, 2006 Fall.

Right Hip: Mr. Witt denies right groin or hip pain prior
to the December 8, 2006 Fall. First imaging of the hips did not occur
until approximately 15 months after the December 8, 2006 Fall. Given his
habitus he would have been at risk for osteoarthritis of the hip joints. The
x-rays were also suggestive of femoroacetabular impingement which would have
put him at increased risk of osteoarthritis even without a hip injury. My
impression is that he more likely than not had asymptomatic hip osteoarthritis
prior to the December 8, 2006 Fall and that this Fall resulted in this
osteoarthritis becoming symptomatic due to altered gait rather than an acute
joint injury. His groin pain developed over time.

Right Knee: Mr. Witt had osteoarthritis noted in the
x-rays on December 3, 2007. From review of the imaging reports this appeared
to have progressed by March 14, 2008. I would defer comment as to whether
it had advanced to a radiologist. I have not had the opportunity to review
these images. He had a probable mechanism for a meniscal injury with putting
his leg through a gap in the plates on December 8, 2006. He commented on
knee pain in initial chiropractic assessment the day after this Fall. In the
first Primary Care Note dated January 24, 2007 there appears to be a
comment about the right knee. It is my opinion that Mr. Witt had an acute
right knee injury as a result of the December 8,2006 Fall.

Leg Pain: It is my opinion that
Mr. Witt has ongoing leg symptoms due to a low back injury from the
December 8, 2006 Fall.

[32]       
Dr. Craig gave the following “prognosis” for Mr. Witt:

Mr. Witt is three and a half years out from the
December 8, 2006 Fall and continues to be symptomatic.    He has ongoing
symptomatic arthritis in the right hip and knee and symptomatic lumbar spinal
stenosis.   There are good treatment options outlined in the Assessment section
of the report so I would expect that he should be capable of achieving  some
symptomatic improvement but prognosis for return to his pre-December 8,
2006 level of function is guarded. He will likely have ongoing symptoms in the
right hip, knee and legs due to the December 8, 2006 Fall.

Given his habitus he was likely at a higher risk of requiring
knee or hip surgery even without the December 8, 2006 Fall. This risk was
increased by injuries from the December 8, 2006 Fall.

Given his congenital spinal stenosis and likely pre-existing
arthritis in the posterior spinal joints (facet joints), he was likely at
heightened risk of developing spinal stenosis disease requiring decompressive
surgery in the future. This risk was increased due to his acute low back injury
from the December 8, 2006 Fall.

I see no contraindications to him increasing his level of
physical activity. I would encourage him to do so. He will likely have some
initial flare in his symptoms as he increases his activity. He would be limited
in performing impact type activities.

I see no limitations in his
ability to perform his activities of daily living.

[33]       
Dr. John Watterson was admitted as an expert to provide an opinion
on rheumatology.  He examined Mr. Witt on January 4, 2011 to deal
with the right hip, right knee, shoulder and back pain experienced by
Mr. Witt.  The observations of Dr. Watterson included the following:

(a)        The
MRI investigations do show meniscal and cartilage pathologies which in my
opinion are most probably secondary to the degenerative natural history of
osteoarthritis;

(b)        Mr. Witt
has severe near end-stage degenerative arthritis of the right hip.  There is
further evidence that he likely has congenital femoral acetabular impingement. 
This mechanical abnormality of his hip coupled with general obesity, in my
opinion, has resulted in development of advanced degenerative arthritis;

(c)        Mr. Witt
has clinical and radiographic severe osteoarthritis of the right hip.  He has
an antalgic gait pattern and functional limitations secondary to pain;

(d)        Mr. Witt has clinical
evidence of severe osteoarthritis of the right knee.

[34]       
Dr. Watterson gave the following “prognosis”: 
(a) Mr. Witt will require surgical intervention for degenerative
arthritis of his right hip and right knee; (b) Mr. Witt may have
ongoing and or intermittent problems with his lower back.  He has evidence of
both neuro foraminal encroachment secondary to degenerative arthritis of the
facet joints as well as a degree of both acquired and congenital spinal
stenosis.  Over time he may require surgical decompression for this problem. 
In my opinion, this is currently not symptomatic whereby he does not describe
symptoms of neurogenic caldication.

[35]       
At the request of counsel for the Defendants, Mr. Witt was seen by
Dr. Michael S. Piper who was qualified at Trial as an expert to provide an
opinion as an orthopaedic surgeon.  Dr. Piper noted that, by October of
2009, Mr. Witt was no longer taking medications to control his
discomfort.  Dr. Piper provided the following observations:  (a) “Examination
of the cervical spine showed an essentially normal painless range of motion”;
(b) “Examination of the shoulder showed no obvious muscle wasting”;
(c) “He had a mildly limited range of motion in his right shoulder, being
able to abduct to 160 degrees, compared to 180 degrees on the left.  He has
slightly diminished elevation.  External rotation was equal bilaterally. 
Internal rotation was slightly limited on the right side.”; (d) “With him
standing he was seen to have a significant bilateral venous trophic changes in
both lower legs, extending from mid-calf to his ankles.  He walked with an
antalgic gait, favouring the right side.  He walked with his right leg somewhat
externally rotated.  He was seen to have a slight fixed flexation deformity of
the right leg.”; (e) “Examination of his right hip revealed a very
significantly limited range of motion.  He had a 10 degree fixed flexation
deformity and flexed only to 90 degrees.  He had a 25 degree external rotatory
contractur with only about 10 degrees combined internal and external rotation
from this point.  He had 10-15 degree abduction contractur.”; and (f) “Examination
of the right knee revealed a 10 degree fixed flexation deformity with only 100
degrees of flexation.  He had marked crepitus in the patellofemoral and medial
joint compartment on passing the knee through a passive range of motion.”

[36]       
In his opinion, Dr. Piper concluded as follows:

I don’t think there is any doubt that Mr. Witt suffered
from a fairly significant degree of degenerative spondylosis and arthritis
involving in particular his low back and right hip and right knee, prior to the
subject accident. The Fall which occurred on the 8th of December 2006 may very
well have aggravated these conditions. He has at the present time evidence of
really very severe degenerative arthritis involving his right knee and right
hip. He has symptoms suggestive of spinal stenosis, which has been confirmed
both on MRI and CT scan.

I believe this gentleman would be greatly benefited by
surgery directed toward in particular his right hip and subsequently his right
knee. He may in the future require spinal decompression, should he continue to
have symptoms of spinal stenosis. I do believe that the bulk of his
degenerative change pre-existed the subject accident, although this may have
been rendered more symptomatic as a result of the Fall.

He did suffer a fracture of his
right shoulder as a result of the Fall in January of 2007. This fracture
clinically has healed. Mr. Witt’s range of motion should improve and he
should have no permanent disability as a result of this injury.

[37]       
At Trial, Dr. Piper was asked how long knee surgery or knee
replacement would take, and the problems associated with it.  Dr. Piper
stated that he would not let his patients fly for about two months, but that
they would be independently mobile after about six weeks.  He stated that
patients would often take 3-4 months to recover.

[38]       
Dr. Robert McCormack, orthopaedic surgeon, recommended the following for
Mr. Witt:

1.     Weight loss

2.     Exercise:
Aerobic fitness – low impact or non-weight bearing

Recreational activities

Strength training

Stretching

3.     Drug
therapy:      Acetaminophen (Tylenol) 2000 mg up to 4 times a day Non-steroidal
anti-inflammatory drugs: oral or topical

4.     Supplements:      Glucosamine
Sulfate 1500 mg/Chondroitin 1200 mg daily

5.     Homeopathic:      SierraSil,
Traumeel Cream, Capisiacin, Lakota, Celadrin cream

6.     Injections:            Viscosupplements – Synvisc,
Durolane Steroid

7.     Therapy:              Physiotherapy

Heat and/or ice

TENS home unit

Acupuncture

8.     Bracing:
Custom or off-the-shelf, unloader brace

Off-loading orthotics

Neoprene sleeve

9.         Surgery:          Arthroscopy

Osteotomy

Knee Replacement – Partial; Total

DID THE DEFENDANTS TAKE REASONABLE CARE?

[39]       
Section 3 of the Occupiers Liability Act, R.S.B.C. 1996,
c. 337, s. 3(1) defines an occupier’s duty as follows:

An occupier of premises owes a
duty to take that care that in all the circumstances of the case is reasonable
to see that a person, and the person’s property, on the premises, and property
on the premises of a person, whether or not that person personally enters on
the premises, will be reasonably safe in using the premises.

[40]       
To prove his claim, Mr. Witt must show that the Defendants breached
their duty to see that the area where the Fall occurred was reasonably safe and
that the breach caused the Fall.  In Mainardi v. Shannon, [2005] B.C.J.
No. 1033 (S.C.), Preston J. summarized the general principles
applicable in an occupiers liability claim as follows:  (a) the plaintiff
bears the onus of proving on a balance of probabilities that the occupier
breached his or her duty of care; (b) a presumption of negligence is not
created by the fact that a plaintiff was injured – a plaintiff must establish
that some act or failure to act on the part of the occupier resulted in his or
her injury; (c) the duty of care imposed by the Act does not require the
occupier to remove every possibility of danger – the test is one of
reasonableness, not perfection. (d) the Court is not entitled to resort to
speculation when determining the cause of a plaintiff’s fall and subsequent
injury – the plaintiff must prove the nexus between his or her fall and the
occupier’s failure to discharge his or her duty of care; (e) the care that
an occupier must take differs according to the nature and use of the premises;
(f) the occupier need not, in all cases, show that he or she had a
specific policy in place to deal with the maintenance of the portion of the
premises where a fall occurred – the nature of the premises will determine
whether or not a maintenance scheme will be required (at para. 21).

[41]       
A plaintiff must also exercise a modicum of awareness and must exercise
reasonable care for his or her own safety at all times: Jolley v. Pacific
National Exhibition, [1986] B.C.J. No. 2284 (S.C.).

[42]       
The sidewalks and roads at the Airport are high traffic areas for both
vehicles and passengers.  I accept the testimony of Mr. Salmon that the metal
plates were not secured by the long stakes that should have been used to secure
the plates and that there were voids below the plates which allowed the plates
to shift as vehicle traffic went over them.  By failing to secure the plates, I
find that it was inevitable that gaps would develop between the plates.  I
adopt the assessment made by Mr. Salmon in his “Corrective & Preventive
Action Request” that the plates were not “secured” and that the separation of
the plates was “causing a fall hazard”.  In this regard, it is instructive that
traffic cones were put up the next day to warn passengers and that the bus stop
was later relocated.

[43]       
Mr. Robey reported the next day that the plates were about 10 inches
apart and this was confirmed by Mr. Salmon who stated that they were 6 to 8
inches apart.  The Fall took place where there was significant foot traffic as
individuals arriving on flights boarded buses so that they could be transported
to the long-term parking lot to retrieve their vehicles. I find that the metal
plates were unanchored and that there were voids under the plates.  The
inevitable result was that the metal plates moved and a gap between the metal
plates developed.

[44]       
I find that Mr. Witt has proven on a balance of probabilities that the
Defendants breached the duty of care owed to him.  I find that the failure to
anchor the metal plates caused the injuries that were suffered by Mr. Witt.  In
a high passenger area at an airport, passengers can expect that they will not
be required to deal with six to ten inch gaps in the surfaces over which they are
walking.  In a high passenger area at an airport, passengers can expect that
they will not be directed by someone like Mr. Robey to walk over a surface
where there are six to ten inch gaps.

[45]       
I find that the gap between the metal plates caused the Fall.  The
danger constituted by the gap between the metal plates was not a danger that
would have been obvious to Mr. Witt and others.  By placing unsecured metal
plates on the road in a way that allowed them to shift and create a gap, the
Defendants created a trap.  These plates were placed directly in front of a
designated shuttle bus stop.  The last thing that a passenger would expect was
a hole in the area where the shuttle bus drivers directed people to walk to
bring their luggage to the bus.  The area was not reasonably safe for the use
of persons such as Mr. Witt and the area constituted a trap, a dangerous
condition, and an unusual danger so that it cannot be said that the duty of
care that was owed to Mr. Witt and others was met.  The Defendants owed Mr Witt
a duty of care and, as a result of the breach of the duty of care, Mr. Witt was
injured.

[46]       
I come to this conclusion despite the fact that I find that the
Defendants had a reasonable system of inspection in place.  However, despite
the system of inspection, the correction of an unsafe situation did not occur. 
I find that, on the day of the accident, Mr. Robey noticed that the metal
plates on the road moved when vehicles drove over them and that Mr. Robey told
his supervisor that the plates were moving and that someone was going to get
hurt.  In the circumstances, the reasonable and comprehensive system of
inspection that was in place failed because the Defendants did not take steps
to correct the danger that had been created and which was observed and reported
by Mr. Robey.

WAS THERE CONTRIBUTORY NEGLIGENCE?

[47]       
The Defendants submit that Mr. Witt must bear significant responsibility
because his lack of awareness and failure to exercise reasonable care caused or
materially contributed to causing the Fall.  They submit that, if Mr. Witt
had exercised a modicum of awareness and had not stepped backwards, the Fall
would most likely have been avoided.  The Defendants submit that Mr. Witt
should be held 50% contributorily negligent for the Fall.

[48]       
I find that nothing that Mr. Witt did, or did not do, contributed to
causing the Fall.  In this regard, I do not accept the evidence of Mr. Robey at
Trial that Mr. Witt walked over the metal plates, handed his luggage to him,
and then walked backwards without looking at where he was stepping.  I prefer
the contemporaneous report of Mr. Robey over his evidence at Trial.  I also prefer
what Mr. Witt stated at his Discovery rather than the uncertainty he created by
his testimony at the Trial.

[49]       
The contemporaneous report of Mr. Robey was that: “Mr. Witt carried his
bags onto the road and stepped between two of the metal plates”.  The testimony
of Mr. Witt at his Discovery and in this direct testimony was to the same
effect: “we were walking across the sidewalk – or across the cross-walk towards
the bus”.

[50]       
I find that Mr. Witt was walking to the back of the bus.  In this
regard, I accept the evidence of Mr. Witt that the “telescoping handle” on his
bag was pushed down and bent as a result of the Fall.  If Mr. Witt had already
handed his luggage to Mr. Robey and was stepping away from the back of the bus,
it would not have been possible for the bag of Mr. Witt to be damaged.  There
would have been no reason for Mr. Witt to leave the back of the bus until he
had handed his bag to Mr. Robey so that his bag could be loaded on to the bus. 
As well, it is more than likely that the telescoping handle on the bag would
have already been pushed down by either Mr. Witt or Mr. Robey if the bag had
already been handed to Mr. Robey for storage on the bus.

[51]       
Mr. Robey invited Mr. Witt and other passengers to walk onto the roadway
and over the metal plates to get to the back of the bus.  While I accept the
evidence of Mr. Robey that the lighting was adequate so that Mr. Witt could
observe the surface in front of him, I am also satisfied that Mr. Witt did not
have to keep his eyes glued to the ground.  It was early in December at
approximately 8:30 p.m.  From that, I can conclude that the lighting while
adequate was not ideal.  In the absence of a warning or of the traffic cones
which were placed in the area the next day, it would not be reasonable to
require Mr. Witt to watch every step he was taking.

[52]       
Mr. Witt had only a duty to be aware of his surroundings and exercise
reasonable care for his own safety.  While Mr. Witt testified that he was aware
of the sound being made as vehicles drove over the metal plates, I find that
there would be no reason for Mr. Witt to assume that there would be a gap
between the metal plates and, as the Fall occurred while he was walking over
the surface for the first time, there would be no awareness of the gap.  I find
that the sound that was made as vehicles drove over the metal plates would not
lead Mr. Witt or others to conclude that the metal plates were shifting because
they were not anchored.  Mr Witt had no reason to expect a gap.  Because of
this, Mr. Witt was not on the lookout for one.

[53]       
I find that Mr. Witt was exercising reasonable care for his own safety
as he walked towards the back of the bus.  I find that the negligence of the
Defendants was the only cause of the Fall.

NON PECUNIARY DAMAGES

[54]       
Mr. Witt claims that the injuries that he suffered have caused him pain
and suffering, loss of enjoyment of life, permanent physical disability, loss
of earning capacity (past and future), and loss of housekeeping capacity (past
and future).

[55]       
A number of witnesses who are familiar with the work that Mr. Witt
undertakes testified at Trial about their observations of Mr. Witt before and
after the Fall.  Mr. Lepard of the Vancouver Fire Department stated that
he saw no restriction on the movements of Mr. Witt prior to the Fall but
that, on a later trip with Mr. Witt, he described Mr. Witt as
“hurting pretty good”.  “Everywhere we went, he was struggling.”  “Walks all
the time with a limp.”  However, Mr. Lepard noted no change in the “focus”
or “mental sharpness” of Mr. Witt.

[56]       
Donald Armstrong is the regional manager for Sparton who builds the
chassis for the fire trucks marketed by Mr. Witt.  Mr. Armstrong stated that he
saw Mr. Witt about two weeks after the Fall, observed that his leg was
pretty red and bruised, and that he was limping and hobbling. 
Mr. Armstrong has since observed that Mr. Witt is sitting down more, that
he uses handicapped spots in restaurants even though he does not have the
decal, and that he had to lean on a railing when going up and down stairs.  He
notices that Mr. Witt does not laugh as much, has a grimace on his face,
has difficulty sitting, standing, and walking, and is limping:  “He would immediately
sit down in order to take the load off”.  At a trade show, he noted that
Mr. Witt had to take a taxi in order to handle a 3-4 block walk.

[57]       
Brian Evans is an equipment supplier.  He indicated that they holidayed
together.  He described Mr. Witt as formerly being “extremely light-footed
for a big guy”.  “Hard to keep up with him” whereas he was now sitting down and
“not in the face of customers as much anymore” at trade shows.

[58]       
Gordon Wilson is the chief mechanic of the Surrey Fire Department.  Mr.
Wilson described Mr. Witt as “hard to keep up with him – climbing up and down
trucks”.  After the Fall, he saw him limping and sitting down at trade shows:
“not in the face of customers as much anymore”.  After the Fall, he was
“hobbling” and has a limp – “A lot harder for him to get around.”  “Going
upstairs is the biggest challenge.”  “He sighs and grunts.”  “He hobbles around
in the airport.”

[59]       
Based on the conclusions reached by the medical experts, on the
testimony of Mr. Witt and Ms. Witt, and on the testimony of those who knew him
well, I conclude that Mr. Witt has considerable and continuing pain as a result
of the Fall and that the pain that he has suffered has made his life less
enjoyable.  I find that his inability to walk long distances, his inability to
enjoy golfing, hiking and tennis, and his reduced sleep and energy levels have
come as a result of the Fall.  I am satisfied that Mr. Witt should be
compensated for that pain and suffering.

[60]       
Regarding the particular complaints of Mr. Witt, I make the following
findings.  I find that Mr. Witt now suffers from chronic pain as a result of
the Fall.  I also find that, as a result of the chronic pain, there have been
negative changes to his disposition, a considerable reduction in his physical
activity and capacity, and a significant negative effect on his marriage.

[61]       
Regarding the back pain experienced by Mr. Witt, I find that some but
not all of the back pain experienced by Mr. Witt as a result of the Fall
settled by the summer of 2010.  However, I also find that he is now more
susceptible to develop spinal stenosis as a result of the Fall.

[62]       
Regarding the right hip of Mr. Witt, I find that he continues to have severe
pain from time to time and discomfort when sitting.  As a result of the Fall, I
find that osteoarthritis has become systematic and that this has become the
case earlier than what would have occurred but for the Fall.  While I find that
there was a degree of degenerative spondylosis and arthritis prior to the Fall,
I find that the Fall produced severe pain in the right hip that would not have
been experienced by Mr. Witt but for the Fall and which has produced early
onset of degenerative spondylosis and arthritis.

[63]       
As a result of the Fall, I find that the pain and weakness being
experienced by Mr. Witt in his right knee has accelerated the existing degenerative
arthritis so that Mr. Witt now requires surgery.  I find that the presence of degenerative
arthritis in the right knee of Mr. Witt was accelerated by the Fall.

[64]       
Mr. Witt seeks non-pecuniary damages of $100,000.00 to $115,000.00
and relies on the following decisions to support that submission:  (a) Grigor
v. Johal, [2008] B.C.J. No. 2651 (S.C.), where $90,000 was awarded to a
50-year-old plaintiff who suffered a contusion to his left shoulder, soft
tissue injury to his neck and right shoulder, and an injury to his lower back
where the plaintiff had pre-existing degenerative disease in his lower back,
and where the Court found that the plaintiff had chronic pain of varying
degrees which limited his capacity to perform various physical activities and
had caused “profound changes” to his disposition; (b) Notenbomer v.
Andjelic, [2008] B.C.J. No. 721 (S.C.), where a 45-year-old plaintiff was
awarded $100,000 when the Court found that the plaintiff had suffered an injury
to her back as well as depression and fatigue, that there was pre-existing back
condition that pre-dated the accident by about a year, where the plaintiff
experienced a different kind of back pain as well as left sciatic pain, and
where the plaintiff suffered from chronic back pain which was more or less
constant after the accident and which reduced the amount of time the plaintiff
was able to work and her productivity when she was able to work; and (c) Larwill
v. Lanham, [2001] B.C.J. No. 2615 (S.C.), [2003] B.C.J. No. 2627 (C.A.),
leave to appeal denied [2004] S.C.C.A. No. 23, where a 47-year-old plaintiff
was awarded $115,000 for non-pecuniary damages, where the plaintiff had a
previous asymptomatic degenerative spine condition, where the accident caused
neck and back pain, numbness and tingling in the left leg and arm, as well as
dizziness and headaches, where the injuries were found to have a significant
impact on the plaintiff’s quality of life, and where the accident made the
spine condition symptomatic.  The submission made on behalf of Mr. Witt is
that his injuries are more significant than the plaintiff in Grigor, supra
and that the impact on his life is more consistent with what occurred to
the plaintiff in Larwill, supra.

[65]       
The Defendants submit that an appropriate award for non-pecuniary
damages taking into the account the “original position” of Mr. Witt is $45,000.
In this regard, the Defendants rely on the following decisions: Ible v.
Chirag, [2006] B.C.J. No. 2859; and Weinmuller v. Tait, [2006]
B.C.J. No. 553.  In Ible, the plaintiff suffered minor injuries to his
left shoulder, chest, right hip, left leg and testicle, most of which had
cleared up by the time he left the hospital four days later.  In the weeks
following the accident, the main areas of complaint were his lower back and
knees.  The lower back pain had substantially subsided by six months and the
defendants had submitted that the plaintiff had a pre-existing degenerative
condition that would have caused him chronic back pain in any event.  In this
regard, Satanove J., stated:

There is also overwhelming
evidence to establish that the plaintiff suffered from a pre-existing condition
of osteoarthritis in both knees before the accident. However, the plaintiff did
not experience any problems with his knees until after the accident (at para.
6).

[66]       
In Weinmuller, Rice J. found that the plaintiff started
displaying symptoms of degenerative discs in her back.  There was a finding
that the plaintiff suffered soft tissue injuries in the accident and that her
hip injury and the back injury had not resolved.  The evidence indicated that
the plaintiff would have started to suffer symptoms of degeneration at age 75
and the award for non-pecuniary damages was reduced by consideration that
symptoms of degenerative disease would have become manifest at some point in
the future of the plaintiff in any event.

[67]       
I am satisfied that the decisions relied upon by Mr. Witt reflect a more
accurate assessment of the injuries suffered, the duration of the injuries, and
the effects that the injuries have had on the life of Mr. Witt.  In Ible, supra,
the duration of the pain and suffering was six months, whereas Mr. Witt
continues to suffer as a result of the injuries that he sustained almost six
years ago.

[68]       
Taking into account the injuries caused by the negligence of the
Defendants, the duration of the pain and suffering produced by the negligence, the
likely future pain and suffering caused by the Fall, and by the early onset of
arthritic problems caused by the Fall, I set the non-pecuniary damages
available to Mr. Witt at $100,000.00.

HAS MR. WITT FAILED TO MITIGATE HIS DAMAGES?

[69]       
Mr. Witt has a duty to mitigate his damages, including an
obligation to take reasonable steps to recover from his injuries or to reduce
the impact of his injuries.  However, the onus is on the Defendants to prove
that Mr. Witt could have avoided all or a portion of his loss: Chiu v. Chiu
(2003), 8 B.C.L.R. (4th) 227 (C.A.) at para. 57.  In Gregory v.
Insurance Corp. of British Columbia (2011), 17 B.C.L.R. (5th) 101 (C.A.),
Garson J.A. on behalf of the Court described the mitigation test as a
subjective/objective test as follows:

…[t]he reasonable patient, having all the information at hand
that the plaintiff possessed, ought reasonably to have undergone the
recommended treatment. The second aspect of the test is “the extent, if any to
which the plaintiff’s damages would have been reduced” by that
treatment. [Emphasis in original].

(at para. 56)

[70]       
In order to conclude that Mr. Witt has failed to mitigate his
damages, the Defendants must prove on a balance of probabilities: (a) that
the recommended treatment would have reduced the effects of the injuries;
(b) that a reasonable plaintiff in Mr. Witt’s circumstances would
have pursued such treatment; (c) that Mr. Witt unreasonably failed to
seek treatment or follow the options available to him; and (d) the extent
to which Mr. Witt’s damages would have been reduced if he had followed the
recommended program: Antoniali v. Massey, [2008] B.C.J. No. 1526
(S.C.), at para. 31

[71]       
Dr. William Craig is a specialist in rehabilitation.  Dr. Craig was
called to testify on behalf of Mr. Witt.  In his July 23, 2010 report and in
his testimony at Trial, Dr. Craig was of the opinion that there were a number
of treatment options available to Mr. Witt including:  (a) a course of
physical therapy; (b) work with a kinesiologist; (c) localized
treatment options including injection of the right hip joint under x-ray
guidance with the corticosteroid; (d) if the corticosteroid injection
wasn’t effective or only provided temporary benefit, Mr. Witt could
consider injections of a viscosupplement which could be repeated up to four
times a year; (e) consideration of a referral to an orthopaedic surgeon
specialist to discuss possible hip joint replacement; (f) cortisone
injections into the right knee as an office procedure; (g) use of an off-loader
brace; (h) a referral for a steroid injection for his spinal stenosis;
(i) a referral to a surgeon for possible decompressive surgery; and
(j) medical options including the use of tricyclic antidepressant,
tramadol or pregabalin.  Mr. Witt has failed to pursue any of those
recommended treatment options and has no answer as to why he did not pursue
what was the recommended.

[72]       
Dr. Craig stated unequivocally that, had Mr. Witt followed his
advice which was virtually identical to that of Dr. McCormack, he would
have and will still have symptomatic recovery in the form of decreased pain and
increased mobility.  As Dr. Piper pointed out, it is possible to achieve
significant improvement in respect of mobility and reduction in pain through
the surgical procedures alluded to by all three of the medical experts who
testified at Trial.  The Defendants submit that any award of damages ought to
be reduced by at least 30% to take in account the failure of Mr. Witt to
mitigate his damages.

[73]       
I find that the Defendants have proven on a balance of probabilities
that Mr. Witt ought reasonably to have undergone the treatment recommended by
Dr. Craig and by Dr. McCormack.  I have also concluded that the Defendants have
shown on a balance of probabilities the extent to which the non-pecuniary damages
of Mr. Witt would have been reduced if the treatment recommended had been
followed.

[74]       
Although Dr. Craig indicated that Mr. Witt “should be capable of
achieving some symptomatic improvement”, his prognosis was that a return to the
pre Fall level of function was “guarded”.  Dr. Piper was of the opinion that
Mr. Witt could be “greatly benefited by surgery” but was of the view that “the
bulk of his degenerative change pre-existed the subject accident”.  Taking into
account the opinions received, I am satisfied that the $100,000 ordered for
non-pecuniary damages should be reduced by 20% so that I order $80,000 as the
quantum of the non-pecuniary damages available to Mr. Witt.  As outlined below,
I am satisfied that Mr. Witt has mitigated the other damages alleged to have
been caused by the Fall.

PAST LOSS OF EARNINGS

[75]       
Mr. Witt seeks damages for past wage loss based on the combination
of decreased sales, reduced income, and increased overhead caused by his
injuries.  As Mr. Witt described it:  “doing less with more”.  It is the
submission of Mr. Witt that the basis for the past loss of capacity claim is
“simple”: either he would have kept increasing his sales from the base in 2006 and
increased his overhead as his sales grew or he would have maintained his sales
or even shrunk a little and remained a one man band with minimal help.

[76]       
The onus on Mr. Witt to prove this past loss was set out in Zen v.
Readhead, [2011] B.C.J. No. 245, (S.C.) where Fenlon J. stated:

The first question to be addressed is whether the plaintiff’s
earning capacity has been impaired to any degree by the injuries caused by the
accident. The plaintiff must prove on a balance of probabilities the causal
connection between the accident-related injuries and impairment of his ability
to work: Smith v. Knudsen, 2004 BCCA 613 at para. 36.

(at para. 76)

[77]       
Mr. Witt submits that there was a substantial drop in the income
available to the Witt Family in 2007 as a result of the Fall.  I cannot reach
that conclusion.  What is in evidence indicates that the income available to
the Witt Family increased after the Fall:

[78]       
Additionally, the financial statements for his company, Safetek Emergency
Vehicles Ltd. (“Safetek”) for the years 2006 through 2009 indicate increasing
total revenue, net revenue, total assets, and shareholders’ equity:

[79]       
2006 was an extraordinary year for Mr. Witt and his company.  He sold 68
vehicles having a total value of $34,440,261 or $499,134.22 on average.  The
sale of 68 vehicles produced by Smeal Fire Apparatus Co. (“Smeal”) represented
a significant departure from the average number of units sold in the previous
four years (38 units) as well as a significant increase over the units sold in
the subsequent four years (28.5).

[80]       
Mr. Witt points to the decreased number of units sold in 2007 as
evidence of the restrictions in his business and profitability as a result of
the Fall.  It is the submission of Mr. Witt that he was less able to travel to
visit existing and potential customers, that he was less able to attend various
tradeshows to market the vehicles produced by Smeal and that he was less able
to bid on new contracts.  I cannot reach those conclusions.

(a)       Reduced Travel

[81]       
As a result of the Fall, Mr. Witt states that he is less able to travel
to visit existing and potential customers.  At his Discovery, Mr. Witt was
asked the following questions and gave the following answers in this regard:

Q         So since the fall can you describe for me how
you have reduced your travel?

A          I won’t go on a business trip unless I
absolutely have to because it’s just inconvenient and painful.  It hurts to go,
so I try not to go on trips unless I have to where before I’d go at the drop of
a hat.  Now I try to schedule my trips to the customers or now I have people
who now can go call on the customers.

Q         So how many business trips a year do you go on
less than before the fall?

A          Half the trips.

[82]       
At Trial, Mr. Witt indicated that previously he would often go
weekly to speak to customers in the Lower Mainland but that, because he was in
pain, he could not do what he had done before.  He did indicate that he did
make telephone calls but not “face to face”.  Regarding his Alberta travel, he
indicated that his days were “not as full”.  “Not there as often as I should
be.”  Regarding his Toronto travel, he indicated that he did less “face to
face” and that he could “not do the rounds I once did”.

[83]       
When pressed about his travel schedule and the fact that it appeared
that it had not been reduced, Mr. Witt was prepared to admit that it did
not appear that Ontario travel had been reduced, that his U.S. travel was
virtually identical, and that the frequency of travel had not changed:  “But
some I stayed home because I did not feel well.”

[84]       
The travel records of Mr. Witt were in evidence.  The following
chart sets out the number of departures and the number of days when
Mr. Witt was travelling.

(Departure Date / Minimum Days)

[85]       
The number of departures, the number of days travelling, and the average
number of departures per month increased after 2006 rather than decreased.  After
reviewing the evidence, I cannot come to the conclusion that the travel of
Mr. Witt diminished after the Fall, or that the injuries caused by the
negligence of the Defendants caused a reduction in the travel of Mr. Witt, or
that less travel meant fewer sales.

(b)       Reduced Travel to Trade Shows

[86]       
At the Trial, Mr. Witt stated that he was less active at tradeshows, at
truck demonstrations and at other visits to clients, and that he was less able
to assist clients as his mobility in and around fire trucks was diminished. 
Mr. Witt stated that he did not go to some of the smaller trade shows as a
result of the Fall.

[87]       
Paul Sparks was hired as a contract salesman by Mr. Witt.  When asked to
confirm whether Mr. Sparks was doing what Mr. Witt could no longer do, Mr. Witt
stated at his Discovery:

A          He is calling on the small departments.  It’s not
a matter of what I can’t do.  I asked him to do the small departments that I
never called on nor could because of what I was doing and where I was.  So it’s
just a growth of the business for him to do.

Q         Okay.  So the growth of the business with respect
to this smaller market that Paul Sparks is dealing with, that has nothing to do
with you needing him to do that because of your accident injuries, correct?

A          That’s correct.

[88]       
I cannot conclude that Mr. Witt has proven on a balance of probabilities
that he could not go to trade shows as a result of the Fall.  While I can
conclude that the effectiveness of Mr Witt at the tradeshows was diminished as
a result of the injuries suffered as a result of the Fall, I cannot conclude
that he attended fewer tradeshows as a result of the Fall.

(c)       Bidding on Fewer Contracts

[89]       
Mr. Witt was of the opinion that he submitted fewer bids because of the
injuries caused by the Fall.  At his Discovery, Mr. Witt was asked a number of
questions in this regard but, in due course, failed to produce any
documentation which would support the position he was taking.  At his
Discovery, Mr. Witt was asked the following questions and gave the following
answers:

A          There were bids we didn’t go after because I
wasn’t capable of doing the bids because I was hurting.  You know, where you
get a document and you have to have it in by a time deadline.  There were
numerous bids we missed out bidding on.

Q         Can you give me examples of the bids that you
–

A          Off the top of my head, no.  I could go back
and try and find you the name of the town that we would have bid on, but I just
wasn’t in the frame of mind or the spirit to try and do them.

Q         Did you make any records or notations of the
bids that you did not go on?

A          We might have them, yeah.  To be honest with
you, I was worried – I was hurting so much I didn’t care.  I couldn’t do those
things.  You are talking about in Ontario, down there, I’ve got one guy there
that was kind of taking after me, and I couldn’t go after all the bids that
were potential that we could have got.  We kept our regular clients with duress
because I couldn’t take care for them the way I had been before the accident. 
Could we find them?  I’m sure we could go back and look up the ones that we
didn’t get, that we didn’t even bid on, if you want that.  But I don’t know. 
You know, it would take awhile to go through our logs and find them.

Q         Sir, you’ve produced a great deal of
documentation since the last discovery in terms of the financial documentation
and all of this bid-related documentation.  Given the efforts you’ve made in
reviewing your records have you actually identified any specific tender that
you did not bid upon because of your injuries?

A          There were a number of them but off the top
of my head I couldn’t give you them all.  I would have to go back and look. 
But there were a number of cities back to the initial accident in early ’07 and
mid-’07 that before I got more people I couldn’t even go anywhere.  I couldn’t
submit a tender.  I couldn’t remember the bid, et cetera.  But to give you the
names right now, no, I couldn’t.

Q         Well, sir, so sitting here today you haven’t
seen a document or found a document that represents a tender you did not bid on
because of the accident.  That’s all I’m asking.

A          No.

[90]       
At the Trial, it was put to Mr. Witt under cross-examination that he
could not point to a specific contract he lost because of the Fall.  Mr. Witt
stated that there was a potential contract relating to equipment needed by
Kingston, Ontario and that he did not bid on the contract in 2007:  “saw the
specifications, not have the energy or the support because of the injury so I
didn’t bid” “only one I could remember”.  There was no other evidence relating
to this potential contract, the previous dealings that Safetek had with the
City of Kingston, or the profitability of the winning bid.  Under
cross-examination, Mr Witt confirmed that he “did not create a loss list” “and
“I have nothing to give you to keep a tally.  On the basis of the evidence
presented by Mr. Witt, I cannot conclude that Mr. Witt failed to submit bids
that were available to him or that the Fall produced any inability to bid on
potential contracts.

STATUS OF THE OPERATIONS OF SAFETEK PRIOR TO THE FALL

[91]       
Under cross-examination at the Trial, Mr. Witt was asked if he agreed
that he was spread too thin before and after the Fall and he stated: “yes, I
would agree”.  In this regard, I find that the business of Mr. Witt was already
under stress.

(a)       Problems with Servicing Existing Customers

[92]       
At his Discovery, Mr. Witt was asked the following questions and gave
the following answers:

Q         But you were getting a number of complaints
from your customers regarding the level of service?

A          Not a number of complaints.  A couple of
specific complaints of being spread too thin, being me, to follow up.

Q         Who was making those complaints?

A          A couple of fire departments.  I couldn’t
remember their names now.  They had talked to Jeff saying, “We can’t get a hold
of John.  He’s too busy.”  And I had Brian in Ontario following up.  But I was
known as the one man band.

Q         So there were then lower level activities in
the form of at least paperwork that were distracting to you or took away from
your time to do higher level activities?

A          Yes.

Q         And that was before the accident?

A          Yes.

Q         Sir, before the accident did you find being
pulled in too many different directions was also causing you to make some
mistakes on bids?

A          Sometimes I made
mistakes, yes.  Everybody makes mistakes.

[93]       
At Trial, Mr. Witt confirmed that there were delays in getting paperwork
because he was “a one man person selling trucks”, that the issue of paperwork
was a serious issue to Smeal, and that he shared the view of Jeffrey Hunke, the
Corporate Vice-President and Sales Manager of Smeal that increased sales could
not be maintained without the necessary infrastructure.  I find that both Mr
Witt and Smeal were of the view that changes would have to be made so that
Safetek and Mr. Witt could continue to be successful.

(b)       The Role of Chris Wilson

[94]       
In the Fall of 2006, Chris Wilson began to prepare a report for Mr.
Witt.  In a September 19, 2006, email to Mr. Witt, Mr. Wilson stated in part:

To begin, I would like to spell out my short term goals.  I
am at a bit of a disadvantage because I haven’t had a chance to observe or
analyze the operations of your company but I believe that I could immediately
add value by:

1)         helping
execute or develop the company’s marketing plan,

2)         helping
complete any financial reporting/tax work that needs to be done,

3)         coordinating
an update to the website,

4)         spending
time working on whatever is necessary for me to learn every aspect of the
business from top to bottom.

5)         assisting
you directly in the sales process, allowing you to focus as much of your time
and energy to growing your business.  This could mean, for example, helping you
deal with all the paperwork and administrative aspects of your day to day
duties.

On a longer term basis, I would like to take a more active
role in the sales process by having regular client and supplier contract.  This
could mean being the lead on some smaller deals and/or supporting you more
actively on larger ones.  I also can envision taking over responsibility for a
geographic area such as Safetek’s US territories to replace the person you are
in the process of terminating.  All of these steps depend on you feeling I am ready
for the task at hand.

On a more general note, I am
confident that I could add a lot of value on an ongoing basis helping analyze
the industry and how to grow your business while helping to streamline any
inefficiencies that may bog down your time.  I also believe that I can add
value by analyzing and helping manage the financial risks inherent in your
business such as currency exposure.  This, for example, looks to be an
increasingly important risk for Safetek to manage in light of your desire to
grow the business especially if you continue to look to sell outside of North
America.

[95]       
In a November 4, 2006 email to Mr. Witt, Mr. Wilson
repeated what he had set out earlier and added the following:

On a longer term basis, I would like to learn every aspect of
the business from top to bottom so that I can ultimately become your right hand
man.  I would envision this including taking a more active role in the
sale process by having regular client and supplier contact.  This could mean
being the lead on some smaller deals and/or supporting you more actively on
larger ones.  I also can envision taking over responsibility for a geographic
area such as Safetek’s US territories to replace the person you are in the
process of terminating.  All of these steps depend on you feeling I am ready
for the task at hand.

On a more general note, I am
confident that I could add a lot of value on an ongoing basis helping analyze
the industry and how to grow your business while helping to streamline any
inefficiencies that may bog down your time. I also believe that I can add
value by analyzing and helping manage the financial risks inherent in your
business such as currency exposure.  This, for example, looks to be an
increasingly important risk for Safetek to manage in light of your desire to
grow the business especially if you continue to look to sell outside of North
America.

[96]       
In a December 8, 2006 follow-up email to Mr. Witt,
Mr. Wilson stated in part:

I was wondering what you were
thinking in terms of possible timing for me to take a look at the company’s
operations (I’m back in Vancouver on Dec 18th)?  I was also hoping to
spend some time talking about this due diligence so that I can be crystal clear
about what your expectations are and formalize a plan/process to make sure those
expectations are met. I’m not sure if you’ve had a chance to discuss things
with your accountant yet but I also would like to get a sense of what
you’re thoughts are at this point.  Regarding the financials, it would be very
helpful if I could get a copy of the them before we talk next so that I can be
as prepared as possible.  If it would be helpful I would be more than happy to
Contact your accountant directly to arrange for him to get a copy to me.

(c)       January 2007 Report of Mr. Wilson (“Wilson Report”)

[97]       
In the Wilson Report, the “Purpose of this Document” was described by
Mr. Wilson as follows:

1.         To
identify and outline the key problems that Safetek must immediately stabilize
before it can look to the future;

2.         To
provide a short-term action plan that allows Safetek to begin to deal with
these key problems;

3.         To
provide a short-term action plan that is the first of what is likely a
three-stage complete company business plan development process (short-term
stabilization, medium-term consolidation and long-term growth);

4.         To provide a short-term action
plan that is consistent with the Safetek’s long-term goals of successfully and
profitably growing sales and placing the company in a position where it could
be sold in the future should current ownership so choose.

[98]       
The “Initial Research and Analysis Indicates that Safetek” section of
the report included the following:  “Is not consistently providing customers
with an adequate level of service”; “Has to be more effective and efficient
with the execution of its non-sales related activities”; “Will likely have to
take a ‘breath’ and consolidate around its core business activities before it
is ready for another period of prolonged growth”.  Under the heading “Current
Operating Environment” is the following:

1.         The
“Issue Map” on the following slide provides a visual representation of the
issues that are currently effecting Safetek’s operations.

2.         It is
cluttered and complicated because there are many outstanding issues that need
to be addressed, some of immediate concern and others more medium-term in
nature, with many being intertwined and having multiple causes and effects.

3.         Not all of these issues are
necessarily problems individually but combined they have created a problematic
operational environment for Safetek.

[99]       
The following matters were designated in the Wilson Report as being the
“focus of immediate action”:

a.         These
are two staffing issues that essentially require key hires to be added to
support current Safetek staff in key areas.

b.         They are the root causes of
many, if not all, the problems that are currently effecting Safetek’s
operational activities and action must be taken quickly for the company to be
able to effectively and efficiently move forward with stabilization and growth
activities.

[100]    
The “Action Plan Highlights” set out the following:

Hire someone who can help John [Witt] with Safetek’s
managerial duties.

2.         Acquire short-term office space.

3.         Hire a contract administrator.

4.         Hire an Administrative assistant.

5.         Focus on a number of key
operational initiatives to quickly improve service levels.

[101]    
In an April 16, 2007 email to Mr. Witt, Mr. Wilson stated
in part:

Develop a comprehensive list of short-term (Stage 1)
issues that must be addressed:

•I have
developed and initial list which may not be comprehensive:

º     Smeal’s
perception of Safetek’s operating environment.

º     JW
being overwhelmed with work.

º     JW
being out of touch for periods of time.

º     Late
payments (accounts receivable).

º     Service
(BC & Ontario).

º     Office space

[102]    
In a May 16, 2007 email to a number of Fire Chiefs, Mr. Witt
stated:

Dear Chief’s:

Safetek due to its increasing growth has engaged
Mr. Chris Wilson as a Management Consultant to assist in developing and
implementing a business plan to identify and address the current shortfalls/problems
in its valued relationship with both its valued customers and partners as to
responding and meeting its customers’ needs and so I have provided Chris with
your emails and phone numbers to contact you personally to get your feedback
and comments and I take all criticism constructively and not personally so
please don’t hesitate in letting him know your feelings and suggestions.

It is Safetek’s goal to be the
best Fire Apparatus & Emergency Vehicle Dealer in providing not only the
finest quality products at a competitive pricing but responding to any and all
concerns and issues in a timely manner.

CONCERNS EXPRESSED BY SMEAL REGARDING THE OPERATIONS OF SAFETEK

[103]    
The matters raised by Mr. Wilson in the fall of 2006 and in the Wilson
Report had also been raised with Mr. Witt by Jeffrey Hunke of Smeal both before
and after the Fall.  In a March 20, 2007 letter addressed to Safetek,
Smeal expressed a number of concerns about the operations of Safetek.  Those
concerns were as follows:

With all due respect to the sales accomplishments shown by
SEV [Safetek], there remain issues with respect to both SEV and SFA [Smeal]
that must be addressed.  It is the sole purpose of this document, as well as
the respective meeting between SFA and SEV principals to not only discuss
various issues but also devise a plan and formulate solutions designed to
enhance not only our business relationship but also the profitability of both
companies.

Issues of concern:

1.         The current
infrastructure of SEV

2.         Long term stability of
SEV

3.         Customer Service issues
in Ontario

4.         Business plan of
possible purchase of Pro-Fire

5.         Late paperwork/payments

6.         Setting of company goals
and timelines

1.         The Current
Infrastructure of SEV

Sales figures for the past 5 years are as follows:

Year 2003 contains a growth spike
that reflects the Riverside County pumper order.  With that said the numbers
above clearly show a strong sales growth pattern – A growth pattern that
realistically cannot be sustained over the long term.  And yet a growth pattern
than can still continue to grow – but at the reduced pace of that of recent
years.  Slow steady growth is a realistic goal.

The current infrastructure of SEV is insufficient to handle
the current type of sales load and company size with respect to incoming
revenue.  Both SEV and SFA are experiencing low profit margins because of this
current situation.  SEV must form an office environment designed and structured
to efficiently manage, not only the requirements of being a Smeal dealership
but also the demands of such a large customer base on a day to day basis.  SEV
must create an actual office setting that contains the proper amount of
personnel that can handle a company with sales figures of SEV and the
associated requirements of meeting the demands of such sales figures. 
Positions to which normal business requirements and duties such as
receptionist, travel arranger customer service, warranty, loose-equipment, bid
coordinator etc. is required.  An inside sales team is required to handle the
sales duties of SEV.  The office must be set up as to allow both SEV and SFA to
go forward, with minimal disruption, should one individual be absent or unavailable
for a period of time – this is specifically true in the case of John Witt.

2.         Long term
stability of SEV

The current situation, with respect to the long term
stability of SEV is not very promising.  This statement is based on the fact
that the current market value of the company currently sits entirely on the
shoulders of John Witt.  The value of SEV, while important to SFA, should be
and is more of a concern of JW and family than that of SFA.  However, the
affects on SFA, should something happen to JW are a major concern of SFA and
remains an issue that must be addressed.  Much of what is stated in item 1
above is relevant to this issue as well.  A well structured sales force would
not only add to the stability and therefore the value of SEV but also ease the
concerns of SFA o moving forward should something happen to JW.

3.         Customer Service issues in Ontario

The current situation, with respect to the British Columbia
market, between SFA, SEV and Pro-Fire, while not perfect, allows both SEV and
SFA a warranty/customer service repair facility for trucks sold in this area. 
Ontario has no such facility.  WE need to discuss future plans to address this
shortcoming.  The utilization of a FD repair facility is less than adequate for
a territory as important as Ontario (specifically the Toronto metropolitan
area).

4.         Business plan of possible purchase of Pro-Fire

I have read the business plan you forwarded me.  We will
discuss various points and concerns of the document as needed.

5.         Late paperwork/payments

This issue has been ongoing since the creation of SEV.  SFA
has a seemingly endless amount of facts and figures that show lower profit
margins for SEV orders when compared to comparable apparatus sold by other
dealerships.  The primary reason for this is late arriving paperwork and the
large number of change orders after order acceptance.  This situation, while
not easily correctable, remains correctable…  A thorough and complete
preconstruction meeting, covering all aspects in the design of the truck, plus
the proper educating of the customer in advance so as to prepared the customer
of the entire process would greatly diminish a great deal of current problems. 
Both SEV and SFA must strive for nothing less than required improvement in this
area.  The affect of having to kick a truck out of our production schedule, due
to lack of required information is extreme.  This is especially true with large
unit orders such as Vancouver, Toronto, etc.  SFA slots trucks into production
based on an estimated-hour basis.  We must do so in an effort to balance
workload on a monthly basis in order to meet deliveries.  Having to kick out a
truck affects nearly the entire production schedule and therefore cuts down on
efficiency and therefore lowers profits.

Late arriving payment for delivered apparatus is also a
problem that must be addressed.  In Jan. of ’07, SFA had an accounts receivable
of over $10M.  This figure is out of line for a company with sales figures such
as ours.  SEV was responsible for well over 1/3 of this $10M. AS of March 20,
overdue account was in excess of $6.4 million.  With $1.9 attributed to the
RCFD units.  One of which was invoiced back in November and payment is still
not received.

It is understood that Canadian customers have more stringent requirements
for accepting trucks.  However, SEV is not educating the customer properly
about payment terms and certainly is not staying on top of the customers about
issuing payments within the proper timelines.  Immediate improvement is
required in this area.  A simple solution is to do the following:

·        
Have a scheduled date for pick up of the truck.  Let the
customers know of this date and the subsequent arrival to the desire location
in Canada – whether it be direct to the department, Pro-fire, or Vaughan FD.

·        
Make sure the repair facility is prepared for the truck arrival
and ready to begin PDI immediately upon arrival.

·        
Have a scheduled date of truck arrival at the final destination.

·        
Have the department contact city accounting to issue the cheque
in advance and have the main department contact hold the check until the truck
clears the required testing and then immediately mail the payment.

Summary – The percentage of sales generated by SEV is
substantial – approximately 33% of total sales of 21006.  As stated, these
figures are outstanding.  But yet, there is serous cause for concern.  The
large percentage of sales, and therefore the affects these sales can have on
SFA are of great concern.  The long-term stability of SEV is in question should
the health of JW deteriorate.  Therefore steps must be taken in order to
diminish the affects should something happen to JW.  The choices are:

1)         A substantial increase in company investment by
SEV

2)         a reduction of
territory assigned to SEV.

[104]     At Trial,
Mr. Hunke confirmed that he had pressured Mr. Witt to hire help with the
paperwork.  “We make suggestions – urged him to build up his infrastructure.” 
Mr. Hunke also confirmed that a number of the matters that were set out in
the March 20, 2007 letter had been raised by him prior to the Fall. 
Mr. Hunke indicated that the 68 units sold in 2006 caused concern: 
“Sales rising so rapidly could not be sustained – wanted to sustain and then
level off.”  Mr. Hunke suggested to Mr. Witt to build up a larger sales force,
specifically in Ontario.  “Told him not my place to run his business – our
relationship with our customers were suffering – way too much for him to
handle.”  “We using Vaughan repair facility for our warranty facility – clear
it needed to change.”  “We had a better situation if we had a repair facility
there.”  He agreed with the statement that growth was not sustainable past
2006.

[105]     Mr. Hunke
indicated that change orders relating to orders placed by Safetek were coming
late and that this was a problem as late paperwork created greater cost to
Smeal and created timing difficulties in the Smeal plant as well as possible delivery
delays.  Mr. Hunke confirmed a number of matters that were raised in his
letter continue to be of concern to Smeal.

[106]     At Trial,
Mr. Witt described some of the concerns of Smeal as having been raised
before the Fall.  He said that he stated to Mr. Hunke “I am profitable and
I told him that.”  “Not need an office.”  “An empire/bureaucracy does not sell
any trucks.”  He stated that Mr. Hunke expressed a concern about his
health.  He stated that most of the concerns raised by Mr. Hunke had not
been previously raised by him.  However, he did agree that the growth pattern
could not be sustained, although he felt he could sell 70 or 80 units a year.

OTHER CHANGES SAID TO HAVE BEEN REQUIRED AS A RESULT OF THE FALL

[107]     Mr. Witt
submits that the decreased activity and energy levels produced by the pain and
suffering caused by the Fall required Safetek to hire new employees, open an
Ontario office to service existing Ontario customers and open a new British
Columbia office.

(a)       New Employees

[108]     At Trial, Mr.
Witt stated that new employees would not have been hired but for the Fall and
that the profitability of Safetek was diminished as a result of the expenses
associated with these new employees.  It is clear that a number of employees
were hired by Safetek.  This included Chris Wilson.  As a result, “Salaries and
Benefits” increased from $543,737 in 2007 to $1,376,840 in 2008.

[109]    
Mike Greene was hired as a part-time employee dealing with “loose
equipment sales”.  Mr. Witt described that it was necessary for him to get
prices on loose equipment as part of the bid for the total price of trucks.  At
Trial, Mr. stated that, after the Fall, he “didn’t have the time to do it”.  At
his Discovery, Mr. Witt was asked whether Mr. Greene was hired as a time
saving measure for him:

A          I hired him to do it because with the fall
and also what I was going through, to keep track of that stuff, I didn’t have
the capacity to keep track of figuring out the equipment plus keeping the
business going and being in pain at the time of the fall.

Q         So today why is it that you can’t price out
equipment?

A          Because I’m busy being President.

Q         Okay.  So what I’m saying is it’s fair to say
that Mike Greene was really, quite frankly, a time-saving measure for you
because you are busy doing other things?

A          You could call it
that, I guess, yes, okay.

[110]    
Tom Moran is the “warranty administrator” for Safetek.  Mr. Witt
indicated that Mr. Moran does the “paperwork on any warranty claim” and submits
warranty claims to the manufacturer to get reimbursement or approval and then
reimbursement.  Mr. Witt indicated that he formerly did that himself but
that it is now a matter of “it’s not having the time”.  At his Discovery, Mr.
Witt was asked the following question and gave the following answer in this
regard:

Q         So it’s not because of your accident-related
injuries that you cannot do the tasks –

A          That’s correct,
no.

[111]     Mr. Witt
confirmed that he makes the decisions on which municipalities or districts to
pursue, but that the day-to-day activities are managed by others under Chris
Wilson, the “General Manager”.  It appears that only one additional employee
was hired in 2007, that Mr. Montague and Mr. Wilson were hired in 2008, that
they and Mr. Shaddock and Ms. Mastronardi were employed in 2009 and that all
four of them plus Mr. Harris, Mr. Sparks and Ms. Hawkins were added to Safetek
in 2010.  Under cross-examination at Trial, Mr. Witt confirmed that Mr. Sparks,
Ms. Mastronardi and three other employees were not hired as a result of the
Fall.

[112]     In her testimony,
Ms. Witt stated that Chris Wilson was brought on board as “Safetek needed
someone to do that part of the work that Mr. Witt was not good at – the
paperwork”, “John is not a businessman”.

[113]     The weight
of evidence suggests that the rational for additional employees arose prior to the
Fall and did not come as a result of the Fall.  The evidence of Mr. Hunke,
Mr. Wilson and Ms. Witt, along with the documentary evidence (the
March 20, 2007 letter from Mr. Hunke and the business plan of Chris
Wilson) suggest that the overwhelming work load of Mr. Witt was what
necessitated the increase in the number of employees. The increase in the
number of employees also came as a result of the natural and inevitable
evolution of the business of Safetek.

[114]     I find
that the increased investment of resources in Safetek came as a result of the
“ultimatum” of Mr. Hunke of Smeal to invest or risk losing sales
territories.  In these regards, it should be noted that neither Mr. Hunke’s
letter nor Mr. Wilson’s business plan mention the injuries of
Mr. Witt or suggest that the concerns for proposed solutions were in any
way connected to his injuries suffered as a result of the Fall.  I find that
the additional employees were not added as a result of the injuries of Mr. Witt
after the Fall.

(b)       Opening of a New Office

[115]    
Safetek decided that a new office to accommodate the British Columbia
operations of Safetek was required.  Mr. Witt testified that about $50,000 was
spent on the tenant improvements for that office.  At his Discovery, Mr. Witt
made this statement regarding the new office:

I wanted everyone in one place,
but the problem was the facility was pretty antiquated, out-of-date, so we went
and spent money to fix it up to accommodate everybody.  It had no offices, air
conditioning to fix it up to integrate the companies.

[116]     I cannot
conclude that the new British Columbia office came as a result of the Fall. 
Rather, I conclude that the new office was required in order to accommodate the
expanded operations of Safetek.

(c)       Opening an Ontario Office

[117]    
Initially, the new employee in Ontario, Brian Dunn worked from his home. 
At his Discovery, Mr. Witt was asked whether the growth of the business
created the need to move the business out of the home of Mr. Dunn into a
“full-on, independent office” and he answered:

No.  Because I was not able to be
there front and centre in front of the customers as much, we needed to
establish a presence that was physical because I wasn’t there as much, and even
before I was there all the time.

[118]     Mr. Witt
indicated that, before the Fall, he was in Ontario two or three times a month.  Mr. Witt
stated:  “I needed a presence there – competitors going after the sales.”  “We
could do our own pre-delivery inspections instead of at Vaughn now that we have
a facility.”  He indicated that the facility was not making money as yet, and
that it was “a loss leader”.

[119]     I cannot
conclude that the introduction of new employees, the creation of a permanent
location in Ontario, or the creation of a new British Columbia office came as a
result of the Fall.  Rather, I find that those changes came as a result of the
concerns expressed by Smeal and the Wilson Report relating to problems with the
operations of Safetek caused by Mr. Witt attempting to do too much without the
necessary support.

ACQUISITION OF PROFIRE EMERGENCY EQUIPMENT INC. (“Profire”)

[120]     Profire
was purchased in 2008 so that Safetek would have the necessary “infrastructure”
to service the warranties on the trucks it sold.  The former owner of Profire
was hired as the manager once the company was purchased.  At Trial, Mr. Witt
confirmed that the former owner was not hired as a result of the Fall and that
Profire was not purchased as a result of the Fall.

[121]     The 2009
Profile Financial Statements for Profire were in evidence showing assets of
$869,228, total liabilities of $407,416 including $157,422 “Due to Parent
Company”, and Shareholder Equity of $461,812.  Sales and service revenue are
shown at $1,267,864, costs of sale shown as $807,091, other expenses as
$297,063 and net income of $123,209.

[122]     The
significant retained earnings in Profire complicate the past income loss
submissions made by Mr. Witt.  There were sufficient funds available in
2009 to repay the $157,422 owed by Profire to Safetek that would then have been
available to be disbursed by Safetek.  As well, the significant Retained
Earnings in Profire could have allowed dividends to be paid to the sole
shareholder, Safetek, to then also be available for distribution.

[123]     I find
that the addition of Profire and the expansion of the operation of the same did
not come as result of the Fall.  I also find that the profitability of Profire
did or could have increased the income that was available to the Witt Family
and that this income or potential income should be taken into account when
dealing with the question of whether there has been past wage loss as result of
the Fall.

CONCLUSION REGARDING THE CLAIM FOR PAST WAGE LOSS

[124]     I find that
Mr. Witt has not met the burden of showing that there was past wage loss caused
by the negligence of the Defendants.  I find that Mr. Witt has mitigated his
damages by increasing the income that was made available to him or could have
been made available to him.  Regarding the past wage loss alleged, I note the
following.  First, the income available to Mr. Witt and Ms. Witt in 2007
actually increased $79,000 or 17% above what was available to them in 2006.  Second,
the total income available to the Witt Family in 2008 and 2009 increased
substantially.  Third, the Financial Statements for Safetek show that Net
Revenue increased each year after 2006 – by 7% in 2007, by 325% in 2008 and by
108% in 2009.  Fourth, the net income of Safetek increased from $198,392 to
$237,826 (2007) and to $3,449,652 (2008).  Fifth, the Retained Earnings of
Safetek increased from $450,130 in 2006 to $687,956 in 2007 and to $3,042,608
in 2008.  Finally, there was sufficient additional income available in Profire
to repay all or substantially all of the inter-corporate loans owing to Safetek
in order to permit further funds to be available to the Witt Family.

[125]     I am
satisfied that it would be inappropriate for a claim for past wage loss to be
allowed when, at the same time, there were sufficient retained earnings in the
company controlled by Mr. Witt which could have allowed substantial payments to
be made to Mr. Witt and the Witt Family.  Although the number of units that had
been sold by Safetek in 2006 diminished after the Fall, the income paid to Mr. Witt
and the Witt Family actually increased as did the income which was potentially
available but not paid to Mr. Witt and the Witt Family.

[126]     At Trial,
Mr. Witt was asked whether there had been an increase in the number of
customers every year and whether gross sales had increased every year.  Mr.
Witt responded “yes” and that “We’ve grown our customer base”.

[127]     I cannot
conclude that there is less income available to Mr. Witt.  Although the number
of units sold may well have decreased, the net profit and the retained earnings
have increased.  Mr. Witt has not proven on a balance of probabilities that any
disabilities caused by the Fall have resulted in a loss of income to him.  At
Trial, Mr Witt was asked to confirm that he has continued with a sixty to
seventy hour work week since the Fall.  He answered: “Right to this day.  I
sometimes work weekends as well.  It’s the nature of the business.”  Based on
the testimony of Mr. Witt and the financial statements that are in evidence, I
conclude that Mr. Witt has not proven on a balance of probabilities that he has
lost income as a result of the injuries caused by the negligence of the
Defendants.

FUTURE LOSS OF EARNING CAPACITY

[128]    
In Perren v. Lalari, (2010) 3 B.C.L.R. (5^th) 303
(C.A.), the Court confirmed that a plaintiff must prove that there is a real
and substantial possibility of a future event leading to income loss.  On
behalf of the Court, Garson J.A. adopted the following basic principles as articulated
in Athey v. Leonati, [1996] 3 S.C.R. 458 and Andrews v. Grand &
Toy Alberta Ltd., [1978] 2 S.C.R. 229: (a) a future or hypothetical
possibility will be taken into consideration as long as it is a real and
substantial possibility and not mere speculation; and (b) it is not loss of
earnings, but, rather, a loss of earning capacity for which compensation must
be made. In this regard, Garson J.A. stated:

A plaintiff must always
prove … that there is a real and substantial possibility that future event
leading to an income loss. If the plaintiff discharges that burden of proof,
then depending upon the facts of the case, the plaintiff may prove the
quantification of that loss of earning capacity, either on an earnings
approach, as in Steenblok [Steenblok v. Funk, (1990), 46 B.C.L.R.
(2d) 133 (C.A.)] or a capital asset approach, as in Brown [Brown v.
Golaiy, (1985), 26 B.C.L.R. (3d) 353 (S.C.)]. The former approach will be
more useful when the loss is more easily measurable, as it was in Steenblok
the latter approach will be more useful when the loss is not as easily
measurable … A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment … but, as Donald J.A. said in Steward, an
inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss (at para. 32).

[129]     At Trial,
Mr. Witt confirmed that no one has advised him that it will be necessary for
him to retire earlier than he may have contemplated:  “there is nothing
definitive when I have to retire.”  In this regard, Mr. Witt confirmed that he
had not asked any of his medical advisors the question but he also confirmed
that no one “medically … has told you because of your injuries you are going
to have to retire earlier than you would have otherwise have to retire.”  I do
not find the responses of Mr. Witt particularly surprising.  Mr. Witt is
someone who does not seek out medical advice and regularly ignores the advice
that he receives.  It is not surprising that Mr. Witt has given no thought to
and has not sought advice regarding whether he will have to retire earlier than
what he previously anticipated.

[130]     In dealing
with the loss of earning capacity, I am satisfied that it is more appropriate
to review the medical evidence in order to come to a conclusion about whether
there is a real and substantial possibility that there has been a loss of
earning capacity for which compensation should be awarded.

[131]     The future
loss of capacity claim of Mr. Witt is that, because of the diminished capacity
of Mr. Witt to work and earn for the rest of his working life, there is a real
and substantial possibility that he will earn less.  I find that Mr. Witt has
shown that there has been a real and substantial possibility that the injuries
that he suffered as a result of the Fall have diminished his earning capacity. 
His mobility is reduced, he cannot stand to give all sales presentations, and
he struggles with stairs and with carrying the binders that contain the
information regarding the vehicles that he is attempting to sell.  His job is
to travel, to meet people face to face, and to sell.  He remains the face of
his company and the one who can get “the big deals”.  His ability to rely on
the personal contact which is so important in selling vehicles is diminished.

[132]     Minimally,
Mr. Witt will be somewhat immobile if he carries through with the
recommendations that surgery for joint replacement be undertaken.  The recovery
time and the ability to be “face to face” with potential customers and past
customers during that period will result in diminished earning capacity.  It is
Mr. Witt who has developed the personal relationships and the personal service
record which allows potential purchasers to have confidence in Safetek.  While
those who have been hired by Mr. Witt may eventually garner the same
confidence, that is not assured.

[133]     As a
result of the Fall, I find that there has been an acceleration of the arthritis
and an acceleration of the need for restorative joint replacement surgery.  I
find that it is inevitable that his future earning capacity will be diminished
because of the acceleration of the arthritis caused by the Fall.  I find that
there is more than a real and substantial possibility that the acceleration of
the arthritis will lead to income loss.  It is not mere speculation that Mr.
Witt has suffered a loss of earning capacity for which compensation must be
made: Athey, supra; Andrews, supra, and Perren,
supra.

[134]     If Mr.
Witt is required to call upon shareholders’ equity to subsidize the income that
would ordinarily available to him, the resulting balance sheet of Safetek will
make it less attractive to a potential purchaser when Mr. Witt finds it
necessary to retire from the business of selling emergency equipment.  I find
that there is a very real and substantial possibility that the availability of
a maximized sale price will be diminished as a result of his diminished earning
capacity.  While Mr. Witt has no present intention of retiring and while no
medical advisor has suggested that early retirement is an outcome of the
injuries he suffered, I nevertheless find that there is a real and substantial
possibility that it will be necessary for Mr. Witt to either retire earlier
than he previously intended or greatly decrease his participation in Safetek
and Profire.  In this regard, I take into account the onset of arthritis which
would not have been accelerated but for the Fall.

[135]     I find
that Mr. Witt has discharged the burden of proof that there has been a loss of
earning capacity.

[136]     Once that
burden of proof has been discharged, Mr. Witt can prove the quantum of the loss
through either the earnings approach or the capital asset approach: Perren,
supra; and Steward v. Berezan, (2007) 64 B.C.L.R. (4^th)
152 (C.A.).

[137]    
Because it is not possible to assess the damages available to Mr. Witt
in a pecuniary way as was done in Steenblok v. Funk, (1990), 46 B.C.L.R.
(2d) 133 (C.A.) and other decisions, I am satisfied that it is more appropriate
to consider the factors that were described by Finch J., as he then was, in Brown
v. Golaiy, (1985), 26 B.C.L.R. (3d) 353 (S.C.):  (a) is Mr. Witt rendered
less capable overall from earning income from all types of employment?; (b) is
Mr. Witt less able to take advantage of all potential sales that might
otherwise have been open to him and Safetek but for the injuries caused by the
Fall; and (c) is Mr. Witt less valuable to himself and his company as a person
capable of earning income in a competitive market relating to the sale of fire
trucks and other safety equipment?  In this regard, Southin J.A. in Palmer
v. Goodall, (1991), 53 B.C.L.R. (2d) 44 (C.A.), stated:

… even a plaintiff who is
apparently going to be able to earn as much as he could have earned if not
injured or who, with retraining, on the balance of probabilities will be able
to do so, is entitled to some compensation for the impairment. He is entitled
to it because for the rest of his life some occupations will be closed to him
and it is impossible to say that over his working life the impairment will not harm
his income earning ability (at p. 59).

[138]     I conclude
that the earning capacity of Mr. Witt has been reduced even though his income
is greater than what it was before the Fall.  Given the uncontradicted medical
evidence, I think the only reasonable conclusion is that Mr. Witt was rendered
less capable from earning income from all types of employment, unable to take
advantage of all potential sales previously open to his company, less valuable
to himself and to his company, and less capable of earning income in a
competitive market.  I do not find that there are strong negative contingencies
to be taken into account although I do take into account the state of the
economy in North America and the increasingly competitive nature of the
business of Safetek.

[139]     Between
2004 and 2010, Mr Witt earned on average of approximately $740,000.00 per
year.  Between 2006 and 2009, the capital Net Income of Safetek averaged
approximately $1,245,000.  I find that there is a real and substantial
possibility not based on mere speculation that Mr. Witt will find it necessary
to retire at least two years prior to when he would have ordinarily retired. 
On a loss of capital asset approach, an award of $600,000 is appropriate.

SUMMARY

[140]    
Mr. Witt will be entitled to non-pecuniary damages of $80,000.00 and an
award of $600,000 for loss of capacity.  The parties will be in a position to
speak to the question of costs.

“Burnyeat J.”