IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120924

Docket: M033167

Registry:
Vancouver

Between:

Sean David Taylor

Plaintiff

And

Matthew John Depew

Defendant

Before:
The Honourable Madam Justice Fenlon

Reasons for Judgment

INTRODUCTION

[1]            
Eleven years ago the plaintiff’s motorbike collided head-on with the
defendant’s dune buggy on a narrow dirt road as each rounded a corner. The
force of the collision fractured the plaintiff’s thigh bone just above the knee.
Liability for the accident, causation of the injuries sustained, and the amount
of damages are all in issue.

ANALYSIS

1.              
How did the accident happen?

[2]            
The analysis on liability begins, as it must, with a detailed
description of the accident. The collision occurred while the plaintiff, Sean
Taylor, the defendant Matthew Depew, and a group of friends were on a camping
trip at a forest service recreation site east of Campbell River on Vancouver
Island. The only way in and out of the camping site was a single lane dirt road
which wound through a forest and connected with the main campground.

[3]            
Just before the collision occurred, the defendant was driving the dune
buggy away from the group’s campsite accompanied by R.B. Baird, who was sitting
in the passenger seat. The defendant rounded a 90-degree corner and had just
entered a straight stretch. The plaintiff was riding towards the campsite and
had just rounded a 60-degree bend before entering the straight stretch. The two
vehicles collided in the length of road between the two corners.

[4]            
The road was between 6 ½ to 7 feet wide (78-84 inches) in the stretch
where the collision took place. The defendant’s dune buggy was 6 feet 2 inches
wide (74 inches) and the handlebars on the plaintiff’s motorbike were about 2
feet wide (24 inches), so the two vehicles could not have passed each other
without one or both moving into the foliage off the road.

[5]            
The defendant says he rounded the corner and saw Mr. Taylor coming
towards him on the motorbike; he was waiting for Mr. Taylor to make eye
contact, but the plaintiff was looking down. When the defendant realized that Mr. Taylor
did not see him, he braked hard and steered the dune buggy to the right. He saw
Mr. Taylor skid and lay his bike down on its right side so that the front
tire of the motorbike came into contact with the right front tire of the dune
buggy and became lodged under it. According to Mr. Depew, the collision
occurred just as he emerged from the corner.

[6]            
Mr. Taylor said that as he came around the 60-degree bend he was
navigating a slight dip in the road that drew his attention, then he “saw a
flash of yellow” and the two vehicles collided. He was thrown over the
handlebars of the motorbike and landed behind the back end of the dune buggy at
the edge of the road on his side of the road and in a semi-reclined sitting
position facing the way he had come. His left leg was in an unnatural position,
resting across his chest towards his right shoulder.

[7]            
Having considered all of the evidence, and for the reasons that follow,
I find it far more probable that the collision occurred close to the mid-point
of the straight stretch and in the manner the plaintiff described.

[8]            
First, the evidence of R.B. Baird, who was riding in the dune buggy at
the time of the collision, is consistent with the evidence of the plaintiff. Although
Mr. Baird was and remains a friend of the plaintiff, I found him to be a
credible and careful witness who reported what he remembered and no more,
without concern for whether his testimony helped or hindered the plaintiff’s
case.

[9]            
Mr. Baird owned the motorbike and had brought it on the camping
weekend for everyone to use. The defendant argues that Mr. Baird’s
evidence should not be trusted because he was trying to protect his father, who,
as the registered owner of the motorbike, would be liable for injuries due to the
poor condition of the motorbike, including bald tires and no brakes. I will
address the allegations of the poor condition of the bike later in these
reasons, but note at this point that Mr. Baird could not be concerned
about his father’s liability — the limitation period had long expired and
neither the plaintiff nor the defendant had commenced proceedings against Mr. Baird
senior.

[10]        
Mr. Baird described the defendant accelerating out of the blind
corner at between 15-25 kilometres an hour. As they came around the corner,
they “saw Sean coming around the other corner, there was a split second and a
crash”. He recalls the defendant slamming on the brakes “for a second or so”
and veering right; he thought the plaintiff was going about the same speed they
were. The plaintiff pulled to his right as well and the two vehicles almost
cleared but the plaintiff’s bike hit the driver’s side tire of the dune buggy. Mr. Baird
is certain that the plaintiff’s bike was upright and was not on its side
sliding towards the dune buggy when the collision occurred. He saw Mr. Taylor
thrown over his bike and behind the dune buggy. The point of impact, according
to Mr. Baird, was on the plaintiff’s side of the road, about two feet from
the edge of the road on the straight stretch closer to the defendant’s corner.

[11]        
Second, photographs of the motorbike were put into evidence. While the
handlebars were bent, no damage was visible on the right side of the bike as
would be expected if Mr. Taylor had laid the bike down and slid across the
dirt and gravel road. More importantly, Mr. Taylor, who was wearing shorts
and rafting sandals, did not have any abrasions along the right side of his leg.

[12]        
Third, the parties entered an agreed statement of evidence of the
campground supervisor, Margaret Fix, who arrived on the scene on the day of the
accident. Ms. Fix assisted in getting Mr. Taylor to an ambulance out
on the highway. She took measurements of the accident site. The straight
stretch between the two corners is 31 feet long. Ms. Fix said Mr. Taylor
was lying three feet from the defendant’s corner. Mr. Taylor is six feet
tall, so his feet would be roughly nine feet from Mr. Depew’s corner. It
is also apparent that he was thrown some distance from the point of contact and
landed behind the dune buggy which was 140 inches, or just short of 12 feet
long. Based on these measurements, the point of impact must have been 12-15
feet from the defendant’s corner. Given that the straight stretch is 31 feet
long, that is about the midpoint.

[13]        
Fourth, the parties agreed there was a 52-foot sighting distance from
the corner Mr. Taylor came around. Using basic speed and distance
calculations, the halfway point is 26 feet. At 15 kilometres per hour, it would
take 1.9 seconds to reach the mid-point after rounding the corner; at 25
kilometres per hour it would take 1.14 seconds to reach that point. The
plaintiff’s description of rounding the corner, seeing a flash and then colliding
with the dune buggy is consistent with those time and distance calculations.

2.              
Who is liable for the accident?

[14]        
I turn now to the question of liability for the accident. Each party
argues that the other should be held to a greater degree of liability. If it is
not possible to establish different degrees of fault, liability must be
apportioned equally: Negligence Act, R.S.B.C. 1996, c. 333,
s. 1.

[15]        
If this case involved nothing more than two vehicles travelling at the
same speed, rounding corners and colliding, I would find both parties equally
liable, since both parties had an obligation to drive with due care and
attention and at a speed that was not excessive relative to the road
conditions, traffic, and visibility. Both the plaintiff and defendant had travelled
along this stretch of road a number of times before the accident. They knew
that the road was not wide enough for two vehicles to pass. Visibility was
restricted. Both should have been proceeding slowly enough to either pull off
the road or stop if faced with another vehicle coming from the other direction.

[16]        
The plaintiff admits some liability for the accident, acknowledging that
he should have been going slowly enough to be able to avoid a collision on the
narrow trail. But the plaintiff’s position on liability is that the defendant
should bear a greater share of responsibility for the accident.

[17]        
The defendant argues that the plaintiff is entirely at fault, or at the
very least primarily at fault for a number of reasons. First, because the
accident occurred just as the defendant emerged from his corner, closer to the
defendant’s end of the straight stretch, which means that the plaintiff had
more time to see the defendant and should have taken action to avoid a
collision. For the reasons earlier given, I do not accept the factual
assumption that the accident occurred closer to Mr. Depew’s corner. But even
if the accident occurred somewhat closer to the corner out of which the
defendant emerged, there is no basis for concluding that the plaintiff therefore
had an opportunity to observe the defendant longer and to take steps to avoid
colliding with him — that would depend entirely on where Mr. Taylor was
on the straight stretch when Mr. Depew rounded the corner.

[18]        
Second, the defendant argues that the plaintiff was impaired at the time
of the accident because he had consumed magic mushroom tea and beer before he
rode out on the motorbike. Mr. Taylor admits to having a beer or a beer
and a half with lunch before his ride. While he acknowledges that he brought
magic mushrooms on the camping trip for the group to enjoy that evening, he
denies he consumed any of those mushrooms before his ride.

[19]        
A witness called by the defendant, Todd Peacey, who was on the camping
trip that weekend and who at that time was a close friend of the plaintiff,
testified that he saw Mr. Taylor making mushroom tea. However, I find this
evidence to be entirely speculative. Mr. Peacey was 20 feet away from Mr. Taylor
when he observed him during lunch. He concluded Mr. Taylor was making magic
mushroom tea because he saw him with a Ziploc bag in his hand and observed him putting
“something” into a pot of boiling water.

[20]        
Having considered the evidence, I find that the plaintiff was not
impaired by alcohol or magic mushrooms at the time of the accident.

[21]        
Third, the defendant says that Mr. Taylor, Mr. Baird, “along
with everyone else on the camping trip” knew that the motorbike had no brakes. The
defendant argues therefore that the plaintiff was riding the motorbike at an
excessive speed given the condition of the bike.

[22]        
The defendant’s evidence that the brakes were in poor condition was
supported by Todd Peacey. However, both the defendant and Mr. Peacey also
testified that the tires on the motorbike were bald, until they were confronted
with pictures of the bike which clearly showed tread on the tires. In addition,
Sarah Zimmer, Todd Peacey’s girlfriend at the time, rode the motorbike during
the camping trip and confirmed at trial that the brakes were fine. In the
result, I do not find either that the brakes were faulty, or that Mr. Taylor
was driving at an excessive speed given the condition of the motorbike.

[23]        
Fourth, the defendant argues that quite apart from who caused the
accident, greater liability should be apportioned to Mr. Taylor for
failing to wear proper safety gear and footwear while riding the motorbike. There
is, however, no evidence before me that the wearing of proper gear would have
decreased the likelihood of Mr. Taylor suffering a broken femur and his
related injuries.

[24]        
Having considered the defendant’s arguments, I find none to be
persuasive. To the contrary, I conclude that the defendant should bear greater
responsibility for the accident for the following reasons.

[25]        
First, I find that Mr. Depew and Mr. Taylor had discussed the
danger of both the motorbike and the dune buggy being out on the trails at the
same time, and had talked about it being better to have only one of the
vehicles out of the campsite at a time. This conversation occurred after an
earlier near miss in which Mr. Depew was driving the dune buggy and Mr. Taylor
was a passenger. Mr. Baird was using the motorbike, saw the dune buggy
approaching, and pulled off into the bush to permit them to pass. Mr. Taylor
was surprised that Mr. Depew had not seen Mr. Baird on the motorbike
at all as they drove past him.

[26]        
Mr. Depew acknowledges that on the day of the collision he knew Mr. Taylor
had taken the motorbike for a ride 10-20 minutes before Mr. Depew decided
to go out on the dune buggy.

[27]        
Second, Mr. Depew was warned twice immediately before the accident
to be careful because Mr. Taylor was out on the road on the motorbike. Mr. Depew
admitted that just before the blind corner, Mr. Baird said to him “don’t
forget about Sean, he’s out here somewhere”, and Mr. Depew said in
response “Yah yah, I know.” Sarah Zimmer said that before Mr. Depew left
the campsite, she told Mr. Depew to “watch out for Sean” because the road
was narrow; there was only one way in and out and they had talked earlier of a
near collision.

[28]        
Finally, on the defendant’s own evidence, he did not brake immediately
upon seeing the plaintiff. Mr. Depew testified that as he came around the
corner he saw the plaintiff and could tell that the plaintiff was not looking
at him but looking down at the road. This accords with the plaintiff’s evidence
that he was looking down to navigate a dip in the road caused by a dried up
waterway just before the collision occurred. The defendant said he did not
brake until he made eye contact with the plaintiff and noticed the panicked
look in Mr. Taylor’s eyes. It follows that Mr. Depew had an
opportunity to brake upon seeing the plaintiff and before the plaintiff saw
him, but failed to do so or to steer to the right at the earliest opportunity.

[29]        
The plaintiff relies on a number of cases in support of his submission
that fault for the collision should be apportioned to the defendant in the
range of 75-90%. In Koopman v. Fehr (1993), 81 B.C.L.R. (2d) 145 (C.A.),
an accident occurred on a curve on a dirt and gravel logging road which had one
lane with turnouts where two vehicles could pass. The trial judge apportioned
liability equally between the parties and the Court of Appeal substituted an
apportionment of 75-25% in favour of the plaintiff on the basis that the
defendant knew the practice in the area was for vehicles to announce their
position on the road to other vehicles by radio and he was driving without one.

[30]        
In Hildebrand v. Musseau, 2010 BCSC 1022, the accident occurred
on a dirt and gravel forestry road. The plaintiff and a friend were driving in
one direction on dirt bikes and the defendant was going in the opposite
direction in a truck. The defendant cut a corner and drove into the path of the
plaintiff and his friend who were riding side by side about a foot apart on
their side of the road. Upon seeing the truck, the plaintiff had unsuccessfully
tried to avoid a collision by crossing the road. The Court apportioned
liability 90% to the defendant and 10% to the plaintiff.

[31]        
In Hurdle v. Clarkston, [1990] B.C.J. No. 2355 (S.C.), the
plaintiff and a friend were going one way on motorcycles on a gravel road and
collided with a truck coming from the opposite direction. The plaintiff and his
friend were each travelling in tracks on either side of the centre of the road
and as they approached a gentle hill with a curve to their left at the top, the
plaintiff eased his bike to the right, standing on his foot pegs to improve his
vision as the defendant’s truck came into view. The impact occurred in the
centre portion of the road and liability was apportioned equally between the
parties.

[32]        
In Bearman v. Manchur, [1995] B.C.J. No. 1641 (S.C.), the
plaintiff and her friend were riding motorcycles on a dirt road about three
miles from their campsite at a B.C. forest service campground when they
collided with a pickup truck. The motorcyclists were travelling side by side in
the ruts on either side of the centre of the road and as they came to a
left-hand curve, the plaintiff slowed down and moved to the right to fall in
behind his friend. The defendant came around the corner at 50‑53 km/h and
upon seeing the motorcyclists, slammed on his brakes, causing him to lose
directional control so that he could not steer away from the motorcycles. The
collision occurred at the centre of or slightly to the plaintiff’s side of the
road. The parties were held equally at fault for the accident.

[33]        
Ultimately, apportionment of liability turns on the particular facts of
each case. In the circumstances of the case before me, I conclude that
liability should be apportioned 70% to the defendant and 30% to the plaintiff.

3.              
What injuries were caused by the accident?

[34]        
The plaintiff admits that he suffered from three conditions unrelated to
the accident and that he is not entitled to be compensated for pain and
disability associated with those unrelated medical conditions. As the Supreme
Court of Canada noted in Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 32:

The essential purpose and most
basic principle of tort law is that the plaintiff must be placed in the
position he or she would have been in absent the defendant’s negligence (the
“original position”). However, the plaintiff is not to be placed in a position better
than his or her original one. It is therefore necessary not only to determine
the plaintiff’s position after the tort but also to assess what the “original
position” would have been. It is the difference between these positions, the
“original position” and the “injured position”, which is the plaintiff’s loss. [Emphasis
in original.]

[35]        
First, Mr. Taylor experienced ongoing left elbow pain before the
accident. The elbow pain resulted from a workplace fall in August 2000, about a
year before the collision. Mr. Taylor was knocked from a foundation by a
hose delivering wet cement to a job site, and landed on rock six feet below. He
was compensated for this injury under a Worker’s Compensation Board claim. Mr. Taylor
returned to work a few weeks after that incident but continues to suffer from
chronic pain in his elbow.

[36]        
The second pre-existing condition was testicular pain severe enough to
interfere with Mr. Taylor’s ability to work and to do recreational activities
for about two years before the accident. The pain was episodic; Mr. Taylor
was able to do lighter work, and engaged in most of his recreational activities
in the intervals between flare-ups. He underwent surgery for this condition in
the spring of 2001, just before the collision. Both Dr. Bogue and Mr. Taylor
testified that the testicular pain appeared to resolve about one year after the
surgical intervention. While the plaintiff experienced minor pain referred into
his lower back from the testicular problem, it was not in itself disabling and
was of a quality and duration far different from the lower back pain
experienced following the collision.

[37]        
The third unrelated condition was episodic bouts of hemorrhoids that
were painful enough to prevent Mr. Taylor from working for a short period
of time in 2002. These flare-ups occurred once or twice a year until the
hemorrhoids were surgically removed.

[38]        
I turn now to the injuries caused by the collision. The defendant admits
the plaintiff suffered abrasions and a broken femur in the accident but argues
that those injuries healed within months. The defendant attributes the
plaintiff’s ongoing problems to his pre-existing conditions and earlier
injuries, although the defendant led no medical evidence in support of this position.

[39]        
I find that the plaintiff has proved that the collision caused
significant injuries that continue to cause pain and impair functioning 11
years after the accident. Dr. Brian Bogue, the plaintiff’s family doctor, and
Dr. Rubin Feldman, a physical medicine and rehabilitation specialist who
examined Mr. Taylor in the year preceding trial, provided consistent
evidence in support of the plaintiff’s claims.

[40]        
Dr. Bogue said that the femur is the largest bone in the body and
that significant force is required to break it. He described a femur fracture
as a severe injury, “one of the worst”. Dr. Bogue said that soft tissues
are also damaged when a femur breaks and most people experience a lot of
problems even after the femur heals. Dr. Bogue described the injuries the
plaintiff sustained as “severe” and noted that in addition to the fracture to
the shaft of the femur he sustained an injury to the posterior cruciate
ligament of the left knee.

[41]        
In addition, Dr. Bogue noted that Mr. Taylor’s left leg remains
scarred and disfigured and his left knee is unstable due to ligament laxity. He
said that Mr. Taylor developed lower back pain and right sciatic pain and
headache due to his injuries. Dr. Bogue was of the view that Mr. Taylor’s
main problem is chronic pain, the severity and chronicity of which has caused
significant depression and interfered with all aspects of his life, despite the
use of pain killers and therapy.

[42]        
Dr. Feldman summarized his findings as follows:

This man has had difficulty with a chronic pain syndrome ever
since he was involved in a motor vehicle accident in July of 2001. He
demonstrates the presence of post-trauma permanent dysfunction of the left knee
and of the soft tissues of the left femur together with chronic neuropathic
(burning sensation) pain worse in the left thigh but also present to a lesser
degree in the right thigh. He also notes a significant decrease in ability to
perform heavy physical activity resulting in limitations as have been documented.

A myofascial pain syndrome
causing pain in the left low back with the presence of tender nodules in the
area were also seen on physical examination.

[43]        
Dr. Feldman testified that myofascial pain syndrome is soft tissue
injury resulting from trauma to the body. At and near the site of the trauma,
nodules of fibrous material are created. Dr. Feldman noted that the onset
of Mr. Taylor’s low back pain was some time after the collision but stated
that it was not surprising that he experienced such an injury given the way he
landed in the collision and the injury to the femur, an area of the body that
can directly affect the low back.

[44]        
Dr. Feldman concluded that the prognosis for recovery is “very guarded
now given that it is now 10 years since he has had his initial injury”,
although he made a number of recommendations which may help to reduce Mr. Taylor’s
level of pain to the point where he could do more of the recreational
activities he enjoyed prior to the accident. Dr. Feldman concluded:

Accordingly, this man is still
disabled and it would be my opinion, given the length of time of his
symptomatology and its intensity, that this man will undoubtedly end up having
a permanent partial disability which will likely continue to give him
discomfort for the remainder of his existence. The only hope would be that with
the proper management I have suggested, a reduction in his pain might be
achieved.

[45]        
Both Dr. Bogue and Dr. Feldman hold the view that Mr. Taylor
suffers from chronic pain and depression which Dr. Feldman described as
“significant”. Mr. Taylor received disability status twice for his chronic
pain syndrome and depression following the accident, once in July and again in
December 2002. Dr. Bogue noted that it was unusual to see a man in his
early 30s develop chronic pain.

[46]        
I will at this point address the defendant’s submission that the
plaintiff’s physical and psychological problems are due to his pre-existing
conditions.

[47]        
First, the defendant points to a number of inconsistencies in medical
reports filled out by Dr. Bogue and by the plaintiff relating to his
W.C.B. claim which stress the problems experienced by Mr. Taylor from the
workplace accident and seem to minimize the injuries sustained in the motor
vehicle collision. However, I find that those reports were focussed on the
state of the plaintiff’s elbow, and are not a reason to disbelieve the
plaintiff or the other medical evidence supporting the severity of the injuries
sustained in the accident.

[48]        
Second, the defendant argues that the plaintiff suffered from depression
before the collision, and accordingly his current emotional state should not be
attributed to the accident. The medical records confirm that Mr. Taylor
became despondent as a result of not being able to work and engage in other
activities because of his testicular condition, but there is no diagnosis of depression
prior to the July 2001 accident.

[49]        
Third, the defendant submits that Mr. Taylor’s back pain is not the
result of the accident because it is caused by two herniated discs that did not
manifest until November 2003, more than two years after the accident. The
defendant also argues that it is more likely that the herniated discs were
caused by the plaintiff’s pre-accident fall on the worksite, although there is
no medical evidence to support that submission.

[50]        
I find that the plaintiff has proved that the accident caused the disc
herniations in the lumbar spine at L5-S1. The medical evidence led by the
plaintiff established that the force required to break a femur would likely
also injure the lower back. Further, Dr. Bogue noted that the plaintiff
had begun complaining about his lower back three to four months after the
accident. He said that given the location of the injury, problems with the
lower back are expected since the lower back “to work properly needs two normal
legs under it”. Dr. Bogue also noted that it was uncommon to see lower
back problems of this type at Mr. Taylor’s age.

[51]        
Fourth, the defendant submits that some of the plaintiff’s ongoing pain
is due not to the collision, but to an incident that occurred in early 2002
when the plaintiff helped Mr. Peacey push his car out of the mud after it
became stuck. I do not accept this submission.

[52]        
The medical evidence establishes that the plaintiff’s injury made him
more vulnerable to re-injury. I find that Mr. Taylor aggravated his
injuries by pushing on the car. That aggravation would not have occurred if Mr. Taylor
had been healthy at the time of the incident.

[53]        
Nor do I find that Mr. Taylor’s decision to assist in getting the
car out of the mud amounts to contributory negligence on his part. Mr. Taylor
was faced with a pressing situation. He and Mr. Peacey had been driving in
a remote area. It was a cold winter night and dark had fallen. The two men had
been stuck for a long time, and it was late in the evening. I do not accept the
defendant’s submission that Mr. Taylor, about six months after the
accident, should have chosen to walk 30 to 45 minutes into town rather than
trying to get the car out of the mud.

[54]        
The collision need not be the only cause of the plaintiff’s injuries as
long as the injuries would not have occurred but for the accident. In summary on
this issue, I find that the plaintiff has established that the injuries and
limitations identified in the reports of Dr. Bogue and Dr. Feldman
are due to the accident.

4.              
What damages should be awarded?

(a)           
Non-pecuniary Damages

[55]        
Prior to the accident Mr. Taylor was an avid outdoorsman. He was a
highly accomplished mountain biker, described by witnesses as a “technical
rider” who had extraordinary skill and endurance, tackling long and difficult
trails and steep drops with ease.

[56]        
Mr. Taylor also hiked, did trail building, and camped extensively. He
continued to engage in those activities despite his elbow injury in pain from
the fall in 2000 and the testicular problem which had plagued him for a few
years prior to the accident. Other than a period of despondency about his
inability to work due to the testicular condition, he was an easy-going,
self-sufficient and relatively happy individual.

[57]        
After the accident, Mr. Taylor’s life changed dramatically. In the
days immediately following the accident, he underwent surgery to install a rod
and pins to stabilize his femur; he remained in hospital for one week. Two
further surgeries on his left leg were required: in October 2001 to remove the
proximal locking screw; and in March 2003 to remove the remaining hardware in his
leg. The recovery from all three surgeries was long and painful, lasting a
number of weeks.

[58]        
 Mr. Taylor required assistance with day-to-day tasks such as
cooking, cleaning and bathing during these recovery periods. After the first
surgery he had the help of a homecare nurse, and then his friends Sarah Zimmer
and Jamie Gonzalez assisted him. The two women helped him again after the
second and third surgeries. The surgeries have left Mr. Taylor with marked
permanent scarring on his left hip and knee.

[59]        
Before the accident, Mr. Taylor had enrolled in an environmental
engineering degree program to commence in September 2001. He tried to carry on
with his plan to return to school but the pain killers he was taking made it
difficult for him to concentrate and his general physical condition and
inability to drive made it hard to attend classes. Depression set in and
ultimately Mr. Taylor abandoned the environmental engineering program.

[60]        
Mr. Taylor has had difficulty dealing with the changes to his life
caused by the accident. For a few months he turned to street drugs and alcohol.
He became depressed and uses anti-depressants like Effexor to help relieve the
symptoms of depression.

[61]        
Although Mr. Taylor has seen some improvement in the state of his
injuries over time, he still experiences pain on a daily basis. When he sits,
stands, or walks for long periods he suffers from pain and numbness in his left
leg.

[62]        
Mr. Taylor’s injuries have affected his relationship with his
common law wife; chronic pain has affected his ability to engage in sexual
intimacy.

[63]        
I find that Mr. Taylor, by 2004, had returned to mountain biking
but did so in spite of his limitations. In the words of R.B. Baird, Mr. Taylor
“was in a lot of pain, but he loved to ride so he put up with it” and “was
never 100% after the accident”.

[64]        
The defendant made much of a report the plaintiff made to his family
doctor one month after the accident that he had been out riding his bike. I
accept the plaintiff’s evidence that he had ridden a few blocks on the road
near his home and was exhilarated by that small achievement. Dr. Bogue
said that given the extent of the plaintiff’s injuries, it was impossible for him
to have resumed trail riding on the date in question.

[65]        
Nonetheless, I accept that the plaintiff exaggerated the effect of his
injuries on his ability to mountain bike. Facebook communications he shared
with Todd Peacey contradict Mr. Taylor’s evidence at trial. Mr. Peacey
and the plaintiff were once close friends. Their friendship ended shortly
before trial over Mr. Peacey sharing private Facebook communications with
the defendant, communications in which Mr. Taylor described some of his
riding exploits. Mr. Peacey says he felt compelled to tell his friend Mr. Depew
about the plaintiff’s apparent inconsistent statements about his abilities. The
plaintiff said the falling-out occurred over Mr. Peacey’s disclosure of
information Mr. Taylor communicated to him about his relationship with his
wife, a breach of confidence that Mr. Peacey conceded occurred.

[66]        
Regardless of the reason for their falling-out, I find that the Facebook
postings by Mr. Taylor, as well as the evidence of R.B. Baird about his
rides with Mr. Taylor, confirm that Mr. Taylor returned to some level
of mountain biking by 2004, although he continues to experience pain when
riding and restricts the frequency and duration of those rides. I also find
that he is much more limited in his ability to hike and rarely camps since the
accident.

[67]        
Mr. Taylor has difficulty with house and yard work, relying on his
wife to do 85% of it.

[68]        
In short, the injuries Mr. Taylor sustained in the accident have had
a significant impact on all aspects of his life.

[69]        
An award of non-pecuniary damages compensates a plaintiff for loss of
amenities, pain, suffering, and loss of enjoyment of life. In Stapley v.
Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19 at para. 46, the Court of
Appeal outlined the factors a trial judge should consider when assessing such
damages:

The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary
damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of
pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of
life;

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

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

(h)        impairment of physical
and mental abilities;

(i)         loss of lifestyle; and

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

[70]        
Based on some months of discomfort during the healing of the original
fracture and surgeries, the defendant submits that $45,000 is an appropriate
award. The defendant relies on Krawchuk v. Smith, [1995] B.C.J. No. 594
(S.C.), a case in which a 69-year-old plaintiff fractured her femur.

[71]        
The plaintiff submits that an award in the range of $115,000-$164,000 is
appropriate, and seeks damages of $120,000 to reflect the pre-existing medical
issues. The plaintiff relies on: Legault v. Brock Shopping Centre Ltd.,
2010 BCSC 687; Dufault v. Kathed Holdings Ltd., 2007 BCSC 186; McKelvie
v. Ng, 2002 BCCA 657; Rizzolo v. Brett, 2010 BCCA 398; Funk v.
Carter, 2004 BCSC 866.

[72]        
Awards of damages in other cases provide a guideline only. I must apply
the factors listed in Stapley to Mr. Taylor’s particular case. I
conclude that an award of $115,000 is an appropriate sum for non-pecuniary
damages. This reflects a discount of approximately $25,000 to reflect the one
year of testicular pain which continued post-accident, intermittent hemorrhoid
pain, and the chronic elbow pain which persists to this day.

(b)           
Special Damages

[73]        
The defence did not challenge Mr. Taylor’s evidence relating to
out-of-pocket expenses. I award the damages sought except $138 for the
recreation centre swim pass and $1,200 for the Sealy Posturepedic bed on the
basis that these are expenses Mr. Taylor likely would have incurred even
if the accident had not happened. Mr. Taylor was unable to drive for
significant periods of time due to his injuries and surgeries, so I would not
allow the entire mileage claim of $1,357.05. The expenses allowed are as
follows:

(c)           
Cost of Future Care

[74]        
In order to recover damages under this head, the plaintiff must prove
that there is a real and substantial possibility that he will incur future
care costs as a result of the injuries sustained in the accident. Those future
expenses do not have to be a medical necessity, but they must be medically
justified and reasonable: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33
(S.C.) at 78.

[75]        
Based on Dr. Feldman’s evidence I find that a TENS machine is
medically justifiable and reasonable. A TENS machine is not a cure for chronic
pain, but can reduce pain if properly used. It interferes with and distorts the
stimulation coming from the thalamus to the area of injury which encourages changes
in the way a person perceives pain and results in a reduction in the intensity
of the pain. I therefore award the plaintiff $180 to purchase this machine. Dr. Feldman
also recommended time with a physiotherapist for instruction on a TENS machine,
and I award $100 in relation to that expense.

[76]        
Dr. Feldman further recommended antidepressants and group
counselling for depression. Although Mr. Taylor could not recall how much
he pays for antidepressants, I find it reasonable to provide a sum of $300 in
this regard. Group therapy costs approximately $360 according to Mr. Taylor,
and I award that sum.

[77]        
Dr. Bogue has prescribed massage therapy, acupuncture, pain
killers, and chiropractic treatment in an effort to find something that would
assist Mr. Taylor. In his view, any of these physical therapies that
provide relief are of benefit to Mr. Taylor. Mr. Taylor says that
chiropractic treatments two to three times per week have been assisting with
his chronic pain. He pays $40 per session. Taking into account the fact that
the TENS machine may assist significantly, I would award a further twenty
sessions of chiropractic treatments for flare-ups of chronic pain at a total
cost of $800.

[78]        
In summary I award $1,740 for cost of future care.

(d)           
Loss of Housekeeping Capacity

[79]        
Mr. Taylor is unable to perform heavier aspects of housekeeping
such as vacuuming, tasks now performed almost entirely by his spouse. In Kroeker
v. Jansen (1995), 4 B.C.L.R. (3d) 178 (C.A.), the British Columbia Court of
Appeal recognized at para. 9 “that housekeeping and other spousal services
have economic value for which a claim by an injured party will lie even where
those services are replaced gratuitously from within the family.”

[80]        
Before the accident, Mr. Taylor shared equally in the household
duties with his roommate at the time. He could vacuum and mow the lawn without
difficulty. He claims two hours of housekeeping services per week at a cost of
$30 per hour for a total yearly expense of $3,120 and advances a total claim of
$30,000.

[81]        
Mr. Taylor has always done half of the housekeeping, not all of it,
and on that basis I would award $15,000 under this head to replace the actual
value of what he has lost.

(e)           
Past Wage Loss

[82]        
The defendant submits that an award for past or future wage loss
capacity is not appropriate in light of the plaintiff’s history of low earnings
and failure to stay with any particular occupation for long. In addition the
defendant submits that the plaintiff was unable to work prior to the accident
due to his testicular condition, the injuries from his fall from the foundation,
and his hemorrhoids.

[83]        
The plaintiff left high school after  Grade 11 although he took further
courses as an adult. He had worked in a number of physical jobs, including as a
tree spacer in 1999 using a chainsaw to cut down trees. In the year or two
before the accident Mr. Taylor worked as a salmon enhancement technician
for about a year. In the summer of 2000 he helped construct a shop. He had not
worked in the year prior to the accident due to his elbow and testicular
problems.

[84]        
The income tax returns for the five years leading up to the collision
showed an average annual income of $13,000. In contrast, in the seven years
immediately following the accident Mr. Taylor did not work at all.

[85]        
I find that Mr. Taylor would not have worked in the first year
after the accident in any event due to the testicular problems. In the
remaining six years in which he did not work at all after the accident, I find
that he lost income of about $13,000 a year, totalling $78,000, which I would
reduce to $70,000 to reflect the likelihood that he would have been off for
some of that time due to other health issues such as the severe hemorrhoids.

(f)            
Loss of Future Earning Capacity

[86]        
With respect to loss of future earning capacity, I find that the
plaintiff’s earning capacity has been permanently impaired by the injuries sustained
in the accident, and that he will suffer pecuniary loss as a result of that
impairment.

[87]        
Prior to the accident Mr. Taylor generally performed physical work which
he is now precluded from doing.   He attempted a number of labour intensive
jobs following the accident, including shipping and receiving at KalTire and working
for a company that rented large pieces of equipment. Mr. Taylor testified that
he had to leave both of these jobs because they required lifting, which he was
unable to do, and other tasks which were made difficult  by his physical
condition and chronic pain.

[88]        
Mr. Taylor in the past year has started a tourism business in the
Yukon where he now resides. It is his hope to grow this business. He can take
breaks when he needs to and controls his work hours. In the first year of
operations he earned approximately $5,000.

[89]        
At the time of the collision, the plaintiff had been pursuing an
education in environmental engineering. I find in light of his previous
academic history, and his difficulty in staying with one occupation for any
length of time, that there is a low probability that he would have completed
that education.

[90]        
The plaintiff advances a claim of $150,000 to compensate him for loss of
capacity to earn income using a capital asset approach to quantify loss.

[91]        
Quantifying loss of earning capacity using a capital asset approach is one
of the two approaches that may be used. Garson J.A. observed in Perren v. Lalari,
2010 BCCA 140 at para. 32:

[T]he
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown. 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, as in Pallos
and Romanchych.

[92]        
In my view, the loss of earnings approach is an appropriate way to
quantify damages in this case, recognizing that the calculation of damages
under this head is an approximation rather than a precise mathematical
exercise. Based on Mr. Taylor’s evidence, I find it probable that his
fledgling tourism business will grow by 50%, providing income of $7,500 per
year.. Mr. Taylor will therefore experience a loss of about $5,500 per
year based on his pre-accident average income of $13,300. Mr. Taylor is
now 42. Assuming that he would work to age 65, and based on the income
multipliers provided by John Struthers, I would award the sum of $16,371/1,000
x 5,500 =$90,040.50.

[93]        
Although the multipliers take into account the contingency of survival
only, I would not further discount or alter this sum. Although there are
negative contingencies that could affect Mr. Taylor’s future earning
capacity, including the residual effect of his elbow injury, there are also
positive contingencies. In my view in this case the two offset each other. Positive
contingencies include the possibility that but for his injuries Mr. Taylor
might have finished his environmental engineering degree or returned to the job
at the fish hatchery which paid significantly more than $13,000 per year.

CONCLUSION

[94]        
In summary, the total damages are as follows:

[95]        
The plaintiff is entitled to damages of $206,333.05. This represents 70%
of the total and reflects the defendant’s liability for the accident.

COSTS

[96]        
In the ordinary course, the plaintiff would be entitled to costs at
Scale B. If the parties are unable to agree on costs, they may speak to the issue
by setting a date for a hearing to take place within six months of the date of
these reasons for judgment.

The
Honourable Madam Justice L.A. Fenlon