IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121031

Docket: M127478

Registry:
New Westminster

Between:

Leo George
Callahan

Plaintiff

And:

Taeju Kim

Defendant

Before: The Honourable Madam
Justice Fenlon

Reasons for Judgment

Introduction:

[1]            
The 63-year-old plaintiff, Leo Callahan, was riding his bicycle in a
pedestrian crosswalk when he was struck by a car driven by the defendant, Taeju
Kim. Liability for the accident, causation of the injuries, and the amount of
damages are all in issue.

Analysis:

A.             
Liability for the Accident

1.              
How did the Accident Happen?

[2]            
The parties agree on the following facts. On June 30, 2008, at
about 6:30 in the morning, Mr. Callahan was cycling to his job as a
labourer on a construction site in Port Coquitlam. He rode south along the
sidewalk on the east side of Coast Meridian Road facing oncoming traffic. When
he reached the intersection of Coast Meridian Road and Riverwood Gate, the
light was green for him, and red for traffic on Riverwood Gate. Mr. Kim
was driving along Riverwood Gate towards the intersection in a small SUV from
the east. He and his wife were on their way to the local community centre for a
swim, something they did most mornings. Mr. Kim was looking to his left as
Mr. Callahan rode his bicycle into the crosswalk. As Mr. Kim moved
forward, his vehicle struck Mr. Callahan’s bicycle when he was close to
the centreline of Riverwood Gate. The collision occurred between the front
driver’s side bumper of Mr. Kim’s vehicle and the rear wheel of Mr. Callahan’s
bicycle.

[3]            
Coast Meridian has four lanes and is the dominant road. The traffic
light is green for traffic travelling north and south on Coast Meridian unless
a red light is triggered by either vehicle traffic on Riverwood Gate or the pedestrian
controlled walk signals. Riverwood Gate is a residential street with one lane
of traffic in each direction.

[4]            
The parties do not agree on the specifics of the accident. Mr. Callahan
says that when he arrived at Riverwood Gate, he stopped, put his foot down, and
pressed the pedestrian control button for the walk signal. Once the walk signal
appeared, Mr. Callahan checked to his left and saw Mr. Kim’s vehicle
approaching about 50 feet from the intersection. He estimated that Mr. Kim
was slowing from a speed of about 50 kph. He thought Mr. Kim was
going to make a left turn.

[5]            
Mr. Callahan testified that as he rode across the intersection, he
could not make eye contact with Mr. Kim, although he tried to do so
because Mr. Kim was looking left. He said Mr. Kim did not stop at the
stop line, but only slowed down before increasing his speed just as Mr. Callahan
was passing in front of the vehicle. Mr. Callahan tried to speed up to get
past Mr. Kim’s car, but the vehicle struck his rear bicycle wheel,
spinning him around 180 degrees so that his right knee came into contact with
the front driver’s side bumper near the small running lights.

[6]            
According to Mr. Callahan, he fell to the ground and was pushed out
onto the northbound lane of Coast Meridian Road. He said he felt immediate pain
in his right leg, but got up quickly and spoke to Mr. Kim who was still
seated in his car.

[7]            
Mr. Kim’s version of events follows. He said he was driving his
regular route from his home to the community centre. He stopped at the stop
line and activated his right turn signal to turn north in the direction of the
community centre. The light was red but he could make a right turn if he
proceeded with caution, so he looked to his right and did not see anything
approaching. He looked left for a few seconds because it was traffic from that direction
with which he was most concerned. He then turned back to look ahead and slowly
proceeded forward. Almost instantly the collision occurred. Mr. Kim said
he was travelling at a very low speed and the impact was light. He said he
stopped immediately when he saw the plaintiff fall to the ground.

[8]            
After considering all of the evidence, and a number of inconsistencies
in the description of the accident provided by Mr. Callahan, I find the
accident happened in the following way. When Mr. Callahan arrived at the
intersection, he stopped to press the pedestrian control button and waited for
the walk signal. He saw a car travelling along Riverwood Gate slowing down. He
assumed that it would stop so he rode his bicycle out into the crosswalk. He
tried to make eye contact with the driver, but could not because the driver was
looking away from him to the left. Mr. Callahan continued across the
intersection anyway. When he realized that Mr. Kim was starting to move
into the intersection, Mr. Callahan pedalled harder but could not clear
the vehicle and the collision occurred.

[9]            
I do not accept Mr. Callahan’s evidence that the impact spun his
bicycle around, causing his right knee to come into contact with the vehicle. That
is, to say the least, a highly improbable outcome of a low impact collision. I
find rather that Mr. Callahan’s bicycle was knocked over and that Mr. Callahan
fell on his right side, striking his right knee on the ground. I also find that
he came to rest within the crosswalk and was not pushed out onto the northbound
lane of Coast Meridian. However, it is not surprising that Mr. Callahan
recalled these events in a more dramatic fashion, given the startling nature of
the collision and his fear that he could be struck by other vehicles on the
roadway.

[10]        
As for Mr. Kim’s vehicle, I find that he stopped at the stop line
on Riverwood Gate, intending to make a right turn north onto Coast Meridian. He
looked quickly to his right and failed to notice the plaintiff who at that time
was either at the pedestrian control button or approaching it. Thereafter, as Mr. Kim
admitted, he was looking to his left and then ahead and did not check right
again before moving into the crosswalk and colliding with Mr. Callahan.

[11]        
I turn now to apportionment of liability.

2.              
How Should Liability be Apportioned?

[12]        
The plaintiff asserts that the defendant is fully responsible for the
accident. The defendant acknowledges some degree of responsibility for the
accident, but submits that the plaintiff was contributorily negligent and
should be held to be 50% at fault.

(a)           
Legal Framework

[13]        
The parties agree that each of them had a duty to proceed with due care
and attention for his own safety and the safety of other users of the roadway. They
also agree that a person who violates a traffic law assumes a heightened duty
of care: Hadden v. Lynch, 2008 BCSC 295 at para. 59.

[14]        
A breach of a provision of the Motor Vehicle Act, R.S.B.C. 1996,
c. 318, is not on its own enough to establish negligence: Dickie
Estate v. Dickie (1991), 11 W.A.C. 37 (B.C.C.A.). The party claiming negligence
must still prove that the other party breached the standard of care required in
the circumstances and that the failure to meet the standard of care was one of
the causes of the accident.

(b)           
Was the Defendant Negligent?

[15]        
Hadden also involved a collision between a cyclist and a vehicle.
In that case, the Court described the duty of a driver as follows:

[69]      It is important to remember in cases like the one
at bar that the standard of care of a driver is not one of perfection, but
whether the driver acted in a manner in which an ordinarily prudent person
would act, see Orr v. Faucher, 2005 BCSC 1343; Addison v. Nelles,
2003 BCSC 1860, aff’d 2004 BCCA 623; Russell v. Wang, 2000 BCSC 534.

[70]      It seems clear that for
the court to impose liability on the defendant, the plaintiff must prove either
that the defendant did in fact see him or that the defendant ought to have seen
him. If the defendant did not, or should not have, seen the plaintiff, then the
defendant could not have been expected to do anything except proceed through
the intersection as he did.

[16]        
In the case at bar, I find that while Mr. Kim stopped at the crosswalk
and glanced to his right, he did not see the plaintiff who was there to be seen.
I note in this regard that Mrs. Kim was in the front passenger seat,
closer to the direction from which Mr. Callahan entered the crosswalk. The
defendant did not call Mrs. Kim to testify. There were no other witnesses
to the accident. It is likely that Mrs. Kim, who had no reason to be
looking left to check for traffic, had an opportunity to observe the plaintiff
as he proceeded toward the Kim’s vehicle. In these circumstances, I draw an
adverse inference from the defendant’s failure to call his wife as a witness. I
infer that Mrs. Kim would have confirmed that Mr. Callahan was about
to enter the crosswalk or was already in it when Mr. Kim looked to his
right and failed to see him.

[17]        
On Mr. Kim’s own evidence, he was concentrating on looking to his
left for a few seconds when approaching traffic because that was his main
concern at the time; he then turned to look straight ahead and began moving
slowly into the crosswalk without checking again to his right.

[18]        
In assessing whether Mr. Kim failed to meet his duty of care, a
number of considerations come into play. First, Mr. Kim was proceeding
against a red light. Second, Mr. Callahan was in a marked crosswalk with
both a green light and a pedestrian walk sign in his favour. I find that, even
though Mr. Kim acted within the law in making a right turn on a red light,
he had a clear duty to give way to a user of the crosswalk. While Mr. Callahan
contravened s. 183(2)(b) by not dismounting and walking his bicycle across
the street as required by the Motor Vehicle Act, and therefore did not
have the statutory right-of-way, he was nonetheless a user of the crosswalk. A
crosswalk is precisely where other users of the roadway are expected to be,
especially when the traffic signals are in their favour.

[19]        
I conclude that Mr. Kim departed from the standard of care he owed
in these circumstances when he failed to check again to his right before
setting his vehicle in motion to start his right turn. Mr. Kim’s failure
to do so was a direct cause of the accident.

[20]        
I turn now to the question of the plaintiff’s liability.

(c)           
Was the Plaintiff Contributorily Negligent?

[21]        
In Bradley v. Bath, 2010 BCCA 10 at para. 25, 1
B.C.L.R. (5th) 228, Tysoe J., writing for the Court, adopted the following
description of contributory negligence from John G. Fleming, The Law of
Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 302:

 Contributory
negligence is a plaintiff’s failure to meet the standard of care to which he is
required to conform for his own protection and which is a legally contributing
cause, together with the defendant’s default, in bringing about his injury. The
term “contributory negligence” is unfortunately not altogether free from
ambiguity. In the first place, “negligence” is here used in a sense different
from that which it bears in relation to a defendant’s conduct. It does not
necessarily connote conduct fraught with undue risk to others, but
rather failure on the part of the person injured to take reasonable care of
himself in his own interest. … Secondly, the term “contributory” might
misleadingly suggest that the plaintiff’s negligence, concurring with the defendant’s,
must have contributed to the accident in the sense of being instrumental
in bringing it about. Actually, it means nothing more than his failure to avoid
getting hurt … [Emphasis in original; footnotes omitted.]

[22]        
The question to be answered is whether Mr. Callahan took reasonable
care for his own safety, and if he did not, whether that failure was one of the
causes of the accident: Bradley at para. 27.

[23]        
It is common ground between the parties that Mr. Callahan was
riding his bicycle in a crosswalk against the flow of traffic in contravention
of s. 183 of the Motor Vehicle Act. He therefore had a heightened
duty to ensure his own safety, and in particular to ensure that he was seen by
drivers: Hadden at para. 61; Dobre v. Langley, 2011
BCSC 1315 at para. 39.

[24]        
As in Dobre, Mr. Callahan exercised a considerable degree of
care for his own safety. Despite having a green light, he stopped at the
intersection, pressed the pedestrian walk button and waited for the walk signal
before peddling into the crosswalk at a low speed. Mr. Callahan also
looked to his left for traffic and observed Mr. Kim’s car slowing down.

[25]        
I conclude nonetheless that Mr. Callahan failed to take reasonable
care for his own safety. Given the heightened duty of care required by his
breach of the Motor Vehicle Act, Mr. Callahan should have made eye
contact with the driver to ensure that the driver saw him. That failure
contributed to the accident occurring.

[26]        
At this point, I will address the defendant’s argument that Mr. Callahan’s
violation of s. 183(2)(c) of the Motor Vehicle Act, which requires
a cyclist to "ride as near as practicable to the right side of the highway",
justifies attributing to Mr. Callahan a greater portion of the blame for
the collision.

[27]        
The defendant argues that had Mr. Callahan been operating his
bicycle as far to the right as possible, he would have been on the other side
of Coast Meridian entirely and the collision would have not occurred at all. That
argument rests on the flawed assumption that Mr. Callahan would not have
been in the crosswalk if he had complied with the Motor Vehicle Act. The
assumption is flawed because it was possible for Mr. Callahan to have come
to the point at which he entered the crosswalk without breaching the Act: 
he could have ridden his bicycle on the far right hand side of the road, then
walked it across Coast Meridian to the point at which he pressed the pedestrian
walk sign to cross Riverside Gate.

[28]        
Nor do I accept that Mr. Callahan’s conduct in riding along the
sidewalk on the "wrong side of the street" is a factor to be
considered in the apportionment of blame in the circumstances of this case. That
is so because Mr. Callahan had stopped his bicycle before entering the
crosswalk — he did not shoot off the sidewalk riding at speed. In my view, the
sequence of events that informs the allocation of blame for this accident logically
begins from the point at which Mr. Callahan came to a stop before entering
the crosswalk. His conduct in riding on the sidewalk before that may have been
blameworthy in the sense that it violated the Motor Vehicle Act, but
that conduct did not contribute to the accident occurring.

[29]        
Where both parties contribute to an accident, liability must be apportioned
in accordance with the Negligence Act, R.S.B.C. 1996, c. 333. As
set out in Hynna v. Peck, 2009 BCSC 1057, 99 B.C.L.R. (4th) 357,
the approach to be taken is as follows:

[88] In assessing apportionment, the Court examines the
extent of blameworthiness, that is, the degree to which each party is at fault,
and not the degree to which each party’s fault has caused the loss. Stated
another way, the Court does not assess degrees of causation, it assesses
degrees of fault: Cempel v. Harrison Hot Springs Hotel Ltd., [1997] 43
B.C.L.R. (3d) 219, 100 B.C.A.C. 212; Aberdeen v. Langley (Township),
2007 BCSC 993 [Aberdeen]; reversed in part, Aberdeen v. Zanatta,
2008 BCCA 420.

[89] In Alberta Wheat Pool
v. Northwest Pile Driving Ltd., 2000 BCCA 505, [2000] 80 B.C.L.R. (3d)
153, Finch, J.A. (now the Chief Justice), for the majority of the Court of
Appeal, explained this important principle at paras. 45-47:

In my view, the test to be applied here is that expressed by
Lambert, J.A. in Cempel, supra, and the Court’s task is to assess
the respective blameworthiness of the parties, rather than the extent to which
the loss may be said to have been caused by the conduct of each.

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

[30]        
The defendants argue that liability should be apportioned equally as it
was in Bradley and Hadden. The facts of those cases are, however,
significantly different from the facts in the case before me.

[31]        
In Bradley, the plaintiff was riding his bicycle on the sidewalk
facing traffic as he approached a gas station. The defendant drove out of the
gas station and across the sidewalk without stopping as he was required to do,
colliding with the plaintiff’s bicycle as it crossed immediately in front of
him. The plaintiff had seen the defendant’s vehicle moving toward the exit, but
rather than making eye contact with the defendant or stopping his bicycle and
letting the defendant’s vehicle exit the gas station, the plaintiff assumed
that the defendant saw him and would not accelerate his vehicle. In the
circumstances, the Court of Appeal found the plaintiff to be at fault and apportioned
liability equally between the plaintiff and the defendant.

[32]        
In Hadden, the plaintiff was found entirely at fault for a
collision that occurred when he rode his bicycle into a crosswalk with a green
light at a speed of about 32 kph without stopping, right into the side of
a truck that was already in the crosswalk and making a right turn.

[33]        
In my view, the case before me is far more like Dobre. In that
case, the plaintiff cyclist approached the intersection by riding on the wrong
side of the street but stopped before entering the marked crosswalk, looked
left and right and pushed the button to activate the pedestrian warning light. He
was pedalling slowly across the intersection and was close to the centre of the
road when the defendant’s car struck the rear wheel of his bicycle. As in the
case at bar, the plaintiff in Dobre checked to his left and observed a
car approaching but assumed it posed no hazard to him. In that case, N. Brown J.
apportioned liability 85% to the driver and 15% to the cyclist.

[34]        
I find Mr. Kim’s conduct in failing to observe the plaintiff in the
crosswalk and in starting a turn without looking to his right to be far more
blameworthy than Mr. Callahan’s failure to make eye contact. Taking into
account all of the circumstances in the case before me, I conclude that
liability should be apportioned 85% to Mr. Kim and 15% to Mr. Callahan.

B.             
What Injuries were Caused by the Accident?

[35]        
There is no real dispute between the parties that Mr. Callahan injured
his left shoulder, left elbow, lower back, right knee and left ankle in the
collision. I find that the left elbow pain resolved within weeks of the
accident, and the low back complaints and left shoulder resolved within 6-8
months. The plaintiff’s main complaints relate to ongoing problems with his
right knee and left ankle. The parties disagree on the seriousness of the
injuries, and in particular the degree to which they continue to affect Mr. Callahan.

[36]        
The plaintiff marshalled considerable medical evidence at trial but I
agree with defendant’s counsel that "ultimately that evidence proved to be
a recitation of the steps taken toward discreet, definitive diagnoses",
making it unnecessary to review the medical testimony in great detail. In
addition, defendant’s counsel in this case took a refreshingly realistic
approach to the issue of causation, acknowledging at the end of the trial, in
light of the overwhelming preponderance of evidence, that Mr. Callahan
suffered a permanent injury to both his left ankle and right knee as a result
of the accident. In a similar vein, defendant’s counsel did not argue that that
Mr. Callahan’s entirely asymptomatic pre-existing conditions warranted a
reduction in the award of damages.

[37]        
I will deal first with the nature of the left ankle injury. Dr. Ebrahim,
who was Mr. Callahan’s family doctor, explained the development of the
left ankle problem as follows:

[Mr. Callahan] indicated a
past history of a left ankle fracture. It is very likely that he has been
putting significantly more weight on his left leg for at least one year since
the accident because of right knee pain. In this way, pre-existing left ankle
pathologies were likely aggravated to the point of causing pain.

[38]        
Dr. Wiebe, another family physician, described Mr. Callahan
experiencing symptoms of "locking" which includes a catching feeling
where movement of the ankle is suddenly restricted, a symptom Dr. Wiebe
attributed to the internal derangement of cartilage structures such as a loose
body or to a severe degenerative abnormality such as osteoarthritis.

[39]        
I accept the following opinion of Dr. Nacht, an orthopedic surgeon
specializing in foot and ankle reconstruction:

[M]y diagnosis continues to be
that of mild osteoarthritis of the left ankle, and intermittent instability due
to the presence of loose bodies or post-traumatic scarring inside the left
ankle joint. Both the osteoarthritis and the instability are directly related
to the motor vehicle versus [cyclist] accident.

[40]        
I turn next to Mr. Callahan’s right knee injury. I accept the
diagnosis of Dr. Viskontas, an orthopedic surgeon, that due to the
accident the plaintiff suffered a medial collateral ligament sprain that
resolved by February 2010, (about 18 months after the accident), as well
as right knee degenerative osteoarthritis. I also find that the left ankle
injury causes occasional swelling of the left knee.

[41]        
Mr. Callahan’s right knee symptoms began immediately following the
accident and have persisted since. At the time of the original injuries he used
crutches for about four months and then began using a cane which he continues
to use outside the house.

[42]        
I find that both the ankle and knee injuries continue to cause Mr. Callahan
intermittent pain on exertion and that both conditions are permanent.

[43]        
The real issue in this case is the extent to which these injuries
interfere with Mr. Callahan’s ability to function socially, recreationally
and at work, factors which affect the quantum of damages to be awarded.

C.             
What Damages Should be Awarded?

1.              
Non-Pecuniary Damages

[44]        
Non-pecuniary damages are awarded to compensate a plaintiff for pain,
suffering and loss of enjoyment of life. The factors to be considered in making
an award of this kind are set out in Stapley v. Hejslet, 2006 BCCA 34
at para. 46, 263 D.L.R. (4th) 19, and include:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering;

(f)         loss or impairment of life;

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

(h)        impairment of physical and mental abilities; and

(i)         loss of lifestyle.

The plaintiff’s stoicism should not, generally speaking,
penalize the plaintiff.

[45]        
The plaintiff seeks damages in the range of $75,000-$125,000, relying on
Rizzolo v. Brett, 2010 BCCA 398, 322 D.L.R. (4th) 633; Michal v.
Begg, 2010 BCSC 138; and McAllister v. Sotelo, [1999] B.C.J. No. 2132
(S.C.).

[46]        
The defendant submits that an award in the range of $45,000-$75,000
would be appropriate: Laroye v. Chung, 2007 BCSC 1478; Emerson v.
Insurance Corporation of British Columbia, 2003 BCSC 1086; Eblaghie v.
Lee, 2010 BCSC 703, 9 B.C.L.R. (5th) 363; Keshavji v. Jabri, [1995]
B.C.J. No. 1866 (S.C.); Meise v. Whiting, 2002 BCSC 352; and Dulay
v. Lachance, 2012 BCSC 258.

[47]        
I find that the defendant’s cases are more analogous to the case at bar;
the cases cited by the plaintiff involve younger plaintiffs who experienced
moderate to severe chronic pain. In contrast, I do not find that Mr. Callahan
suffers from chronic pain. As plaintiff’s counsel acknowledges, Mr. Callahan’s
daily life has been affected by his injuries because he focuses on
"avoiding pain" by curtailing his activities, resting frequently, and
elevating his legs.

[48]        
Mr. Callahan was 59 years old at the time of the accident and is
now 63. He did not have an easy start in life, born in Newfoundland into a
family of 16 children. He had a cleft palate and, in the years before public
health care, his parents could not afford corrective surgery until Mr. Callahan
was 12. Even after the surgery, Mr. Callahan had difficulty speaking
clearly and continued to be the object of much childhood ridicule. He also had
poor vision, which made it impossible for him to see the board in class. Again,
his family could not afford to purchase glasses for him.

[49]        
Not surprisingly, Mr. Callahan did not do well in school. He did
not complete high school and joined the work force early, doing whatever physical
jobs he could find. Because work was scarce in Newfoundland, Mr. Callahan
often set out for Ontario and British Columbia where there was work to be
found, returning to Newfoundland and to his wife and daughter “whenever he got
too homesick to stay away”. Mrs. Callahan had a secure job in Newfoundland
as a nurse at the local hospital in Cornerbrook and has resided there since
their marriage, although she plans to move to British Columbia to rejoin her
husband on a permanent basis when her mother no longer needs her assistance.

[50]        
Although there was some suggestion that Mr. Callahan was not a hard
worker, leaving Newfoundland only long enough to qualify for what was then
known as Unemployment Insurance, I accept Mrs. Callahan’s evidence that
her husband did "what he could, when he could and couldn’t have done"
any more.

[51]        
Mr. Callahan temporarily lost his licence to drive following an
impaired driving charge in Newfoundland in 1996 and never renewed it,
preferring to use public transit and his bicycle.

[52]        
By all accounts, Mr. Callahan is a talented musician. He taught
himself guitar and writes music. He had been taking audio engineering courses
at a local college before the accident and hopes to get his certificate to
qualify for work in this area.

[53]        
The plaintiff was overweight before the accident and did not engage in
structured physical fitness or recreational activities. He is, it is fair to
say, a simple man of few words whose life revolves around his family, music and
work. He resides on his own in a basement apartment in Port Coquitlam; his wife
visits as often as she can. Mr. Callahan’s social life consists of visits
with his daughter and her family who also live in Port Coquitlam, as well as occasional
evenings with his siblings who live in the area.

[54]        
As I have noted, following the accident Mr. Callahan used crutches
for 3-4 months. He had pain in his left knee, which gradually improved over
time and responded to cortisone injections and strengthening exercises,
although it continues to be a significant disability. Within a year of the
accident, his left ankle began troubling him. That injury too has responded
favourably to cortisone injections, which ease the pain in the ankle joint,
although it continues to “catch” when Mr. Callahan walks.

[55]        
Mr. Callahan can no longer cut the lawn “in one go”, so he either
does half of it one day and the other half the next day, or he takes a break
for a few hours and gets it done in one day. While he used to walk to the mall
(a distance of about two miles) without a problem, he now experiences pain and
stiffness and uses a cane. Mr. Callahan still makes the trip on foot,
although less frequently now than before the accident.

[56]        
The decrease in his activity level generally and the need to rest and
elevate his legs has caused him to gain considerable weight around his middle. His
daughter, wife, and siblings describe Mr. Callahan as more irritable and
less inclined to laughter and to the expression of his strong sense of humour. They
say he is stressed, anxious, less engaging and more sombre at family gatherings.
I accept this evidence. I also note that Mr. Callahan can still engage in
his favourite pastime of playing and writing music, and intends to resume
riding his bicycle if awarded the money to purchase one.

[57]        
Having considered all of the evidence, I find that an award of $55,000
is appropriate.

2.              
Past Income Loss

[58]        
Mr. Callahan has not worked since the accident on June 8, 2008.
Prior to his injuries, he worked steadily with only short breaks between jobs
after moving to British Columbia in October 2005. In the twelve months
before the accident Mr. Callahan worked almost continuously, and for the six
months immediately before the accident he worked for Quolas Construction Services
Limited on various job sites doing construction cleanup. Chris Munro, the
plaintiff’s foreman, described Mr. Callahan as a good and reliable
employee; he estimated that there was a further two years work on that
particular project, but the company had other projects in the Tri-Cities area.
Mr. Munro said that following the economic downturn in 2008, some
employees have been laid off and the number of labourers employed by Quolas has
dropped.

[59]        
The plaintiff’s position on past wage loss is that Mr. Callahan
should be compensated on the basis that he would have continued to be employed
by Quolas. His position doing construction site cleanup paid $31,000 a year,
based on a pay scale of $14 per hour. That job now pays $36,000 a year due to
an increase in the hourly wage to $15 an hour. Based on a work week with no
overtime at $14 an hour, the plaintiff claims $15,630 for the second half of
2008, $31,000 per year thereafter and $18,000 up to the date of trial in 2012,
for a total of $126,630 in past wage loss.

[60]        
In addition to the past wage loss claim, the plaintiff seeks
compensation for loss of additional income he could have earned as an audio
engineer. The plaintiff submits that, but for the accident, he would have
completed his coursework, become certified two years ago, and earned a further
$10,000-$15,000 over the past two years.

[61]        
The defendant argues that the plaintiff’s calculations would put Mr. Callahan
in a better position than he would have been in but for the accident. Counsel
for Mr. Kim submits that it cannot be assumed that Mr. Callahan would
have worked full-time between the date of the accident and trial given the
evidence of Mr. Williamson, president of Quolas Construction, that his
labour force declined tremendously in 2008 and continued to go down by 60% in
mid-2011, with a recovery of 75% of the 2008 complement of workers by the trial
date.

[62]        
Further, the defendant argues that Mr. Callahan failed to mitigate
his wage loss by making use of his residual employability to earn other income.
On that basis, the defendant argues that the past wage loss is closer to $61,500.

[63]        
The first question to be addressed in assessing Mr. Callahan’s
claim for past wage loss is whether the plaintiff’s earning capacity has been
impaired by the injuries caused in the accident: Smith v. Knudsen, 2004
BCCA 613 at para. 36, 247 D.L.R. (4th) 256. In this case, the parties
agree that due to his injuries Mr. Callahan is no longer capable of doing
the job he held at the time of the accident.

[64]        
The next question to be addressed is whether, but for the accident, Mr. Callahan
would have been employed full-time until trial. The standard of proof of this past
hypothetical event is “a real and substantial possibility”: Athey v.
Leonati, [1996] 3 S.C.R. 458 at para. 27, 140 D.L.R. (4th) 235.

[65]        
Taking into account Mr. Callahan’s tendency to move from job to
job, the downturn in the economy in 2008, and the reduction in the workforce at
Quolas Construction Services Limited in the relevant period, I find that the plaintiff
has established a 70% chance that he would have remained employed on a
full-time basis. Using that figure and the full-time wages of $126,630, I find
a past loss of income of $88,641.

[66]        
I find that the plaintiff has not proved a real and substantial
possibility that he would have earned additional income as an audio engineer. The
evidence of employers in this field was that, due to an oversupply of qualified
engineers, people starting out in the industry generally do volunteer work for
a few years to get their feet in the door.

[67]        
With respect to the defendant’s argument that Mr. Callahan failed
to mitigate his damages by obtaining at least part-time employment and should
therefore have the sum he could reasonably have earned deducted from his past
loss of wage claim, I would not give effect to this argument for two reasons.

[68]        
First, the defendant has the burden of proving both that the plaintiff
did not take reasonable steps to obtain employment and that, if he had, he
would have found a job and his losses would have been reduced. While there is
evidence from the occupational therapist, Mr. Pakulak, and from Dr. Wiebe,
Mr. Callahan’s family doctor, that a sedentary occupation would be
possible for Mr. Callahan, I find it highly improbable that Mr. Callahan
would have found employment even if he had searched more diligently.

[69]        
Mr. Callahan is a man who has spent his entire life doing
relatively menial physical labour. His speech is still somewhat difficult to
understand; he is not articulate or particularly presentable. After observing Mr. Callahan
in the courtroom, I find that with these detriments and at the age of 63, it
would be unlikely for him to find employment at a sedentary job, such as
working as a cashier at a store. He simply does not have the skills or
demeanour that an employer would generally be looking for.

[70]        
Second, it took some time for physicians to assess and determine the
best course of action for dealing with Mr. Callahan’s right knee problem. For
a time it appeared that he would require surgery. That possibility was ruled
out only in February 2010. At that time Mr. Callahan started to think
about what else he could do to earn money. He decided to focus on something he
knew about, music, and to try to complete courses in audio engineering. He also
looked for a job in local papers and in the phone book. Mr. Callahan’s
evidence, which I accept, was that he did not know what else to do in the
situation. He did not have enough money to pay for the audio engineering
courses, and in July 2011 was advised that someone would be contacting him
at his home to provide him with assistance in finding a job. That did not
happen.

[71]        
While it could not be said that Mr. Callahan’s strategy for trying
to find a job was an effective one, I am satisfied that he made reasonable
efforts given his limited capacity and experience.

[72]        
In summary on this issue, I award the plaintiff $88,641 for past income
loss. The parties agree that this sum will have to be adjusted to reflect the
usual deductions. If they cannot agree on that sum, they have leave to speak to
the issue.

3.              
Loss of Future Earning Capacity

[73]        
To prove a claim for damages for loss of future earning capacity, Mr. Callahan
must prove a real and substantial possibility of income loss as a result of the
injuries sustained in the accident. If he discharges that burden of proof, then
he may prove the quantification of that loss of earning capacity either on an
earnings approach or a capital asset approach: Perren v. Lalari, 2010
BCCA 140 at para. 32, 317 D.L.R. (4th) 729.

[74]        
The defendant accepts that construction labour jobs are no longer open
to the plaintiff. The defendant also accepts that it is probable that the
plaintiff would have worked beyond age 65 given his late start in the full-time
labour force.

[75]        
The plaintiff seeks damages under this head of $150,000-$233,000,
representing the present value of an annual income of $31,000 per year based on
his earnings before the accident. The plaintiff assumes employment to
age 68 or 70.

[76]        
The defendant suggests a capital asset approach quantification of
damages for loss of future earning capacity, using an earnings stream analysis
as a reference point. The defendant suggests a sum of $55,000 to age 65 reduced
by 30% to take into account the plaintiff’s advancing years and the possibility
of layoff for a total of $39,000 to age 65. Beyond age 65, the defendant
submits that it will be too speculative to use an earnings stream approach in
construction labour as a reference point and argues that the global sum of $45,000
to age 68 is a reasonable estimate of loss of future earnings capacity. From
the total of $84,000, the defendant argues that residual earnings capacity
should be assessed at 50% of his former earnings and therefore damages at
$42,000 are appropriate under this category.

[77]        
In my view, the earnings approach is an appropriate starting point for
calculating Mr. Callahan’s loss. He has always worked in physical jobs and
primarily in construction clean-up in recent years. Both parties agree that this
work is no longer open to Mr. Callahan and I find that, at age 63, he has
no skills that would make him suitable for sedentary employment other than his
audio engineering skills. With respect to the latter, based on the evidence of Mr. Lindsey
and Ms. Biggen, who operate recording studios, as well as the earnings
analysis done by Mr. Carson, I find that Mr. Callahan is unlikely to
earn significant income from employment as an audio engineer. Even if the
accident had not occurred and Mr. Callahan had proceeded with his
training, eventually obtaining his certificate, most audio engineers work for
several years as a volunteer in the industry in order to gain sufficient
experience to be competitive in the job market. Further, it is an industry
dominated by the young, and there are far more applicants than positions. Accordingly,
even though Mr. Callahan has considerable talent in this area, as attested
to by Mr. Lindsey, I find that as a recording engineer he will likely earn
about $15,000 until retirement at age 68.

[78]        
In summary on the issue of residual earning capacity, while I find that Mr. Callahan
has some residual earning capacity in the sense that he is physically capable
of doing sedentary work, I find there is no real possibility, given his age, demeanour
and poor communication skills, that he will find employment of this kind.

[79]        
It follows that the loss of physical strength and ability to perform the
work he did prior to the accident will cause Mr. Callahan real out-of-pocket
loss. Using a full-time earnings approach assuming a salary of $31,000 per year
to age 68 and present value tables supplied by Mr. Carson, I estimate that
loss to be $156,333. However, taking into account the cyclical nature of the
construction industry, the potential for layoff, the chance that Mr. Callahan
as he ages could have succumbed to illness or other injury on the jobsite
unrelated to the accident in issue, as well as the positive contingencies of
raises or availability of over-time, I find that there is only a 70% chance
that Mr. Callahan would be continuously employed and earning an annual
salary of $31,000 to age 68. Reducing the damages to reflect that chance of
this loss occurring, I set damages for loss of future earning capacity at $110,000.
From that sum should be deducted the earnings I find he is likely to make as an
audio engineer, some $15,000, for the remaining award of $95,000.

[80]        
I have used a rough earnings approach: this number is not intended to reflect
a precise mathematical calculation.

4.              
In Trust Claim

[81]        
The plaintiff seeks an in trust award for Mr. Callahan’s daughter,
Lee Ann Callahan. Ms. Callahan helped her father immediately following the
accident and beyond by doing housekeeping and errands. She says that she helped
about twice a week in the two months after the accident and about once a week
thereafter.

[82]        
 The defendant accepts that an in trust award is appropriate but
disputes the amount sought of $3,000-$5,000 on the basis that no evidence was
led to support the time involved in rendering such services or the appropriate
rate of compensation for those services.

[83]        
Despite the paucity of evidence, I must quantify this claim: Dhanoa
v. Hui, 2008 BCSC 907 at 24; Bains v. Lavoie, [1987] B.C.J. No. 228
(S.C.). I award $2,500 as a reasonable estimate in this case.

5.              
Cost of Future Care

[84]        
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
at 78 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.).

[85]        
Based on Dr. Nacht’s opinion that Mr. Callahan can no longer
cycle long distances without risking exacerbation of his right ankle symptoms,
I find that Mr. Callahan will incur the cost of additional bus transportation
which would not have been the case but for the accident. In my view it is
appropriate to award the sum of $200 per year for five years on the basis that
at some point Mr. Callahan would have had to abandon his bicycle and use
public transportation as he aged. That amounts to a total of $1,000.

[86]        
Both Dr. Wiebe and Dr. Viskontas recommended physiotherapy. Mr. Callahan’s
physiotherapist, Mr. Tsui, recommended 5 to 10 sessions a year. I award
six session of physiotherapy per year for the next six years at a cost of $50
per session, which amounts to an award of $1,800.

[87]        
There is some evidence that Mr. Callahan uses Tylenol to relieve
pain in his ankle and knee. Mr. Pakulak estimated that 30 tablets of Tylenol
per year would cost $17 dollars per year. I award that sum over ten years for a
total of $170.

[88]        
There is substantial evidence that cortisone injections have greatly assisted
in controlling Mr. Callahan’s pain and symptoms. He requires two
injections per year in each of the ankle and knee at a cost $160 per year. Assuming
that these injections will be necessary until age 80, I award $2,500 for
this future care.

[89]        
The plaintiff also seeks $1,237.50 for a kinesiologist to develop an
exercise program for Mr. Callahan and to teach him at a pool or gym. The
plaintiff also claims the cost of a fitness centre pass of $275 per year. In
this regard, I agree with the submission of the defendant that the plaintiff’s
evidence did not establish a willingness to engage in a structured fitness
program. In my view the plaintiff has not proved that there is a real and
substantial likelihood that these costs will be incurred and I would therefore not
award these sums.

[90]        
In summary, I award $5,470 for cost of future care.

6.              
Special Damages

[91]        
The plaintiff claims $2,586.38 for special damages, including
prescriptions, user fees, transportation costs, a replacement bicycle, cane,
and similar items. The defendant take issue with only one item claimed under
this head of damages:  $913.34 claimed for Mrs. Callahan’s airfare to
travel from Newfoundland to Vancouver in July 2009.

[92]        
Mr. Callahan claims this sum on the basis that he expected to
undergo surgery on his knee and his wife travelled to the Lower Mainland in
anticipation of having to nurse him after the surgery.

[93]        
I conclude that the cost of Mrs. Callahan’s airfare should not be
borne by the defendant as it was not incurred because of the injuries Mr. Callahan
sustained. Although surgery had been mentioned to Mr. Callahan as an
option, it had not been confirmed or scheduled. He erroneously jumped to the
conclusion that surgery would be proceeding, and asked his wife to come to stay
with him. That was not a reasonable assumption to make on his part and the
defendant should not be required to pay for Mr. Callahan’s mistake.

[94]        
In summary on this issue, I award special damages in the amount of
$2,586.38 less $913.34 (airfare) for a total of $1,673.00.

Conclusion:

[95]        
The total damages are as follows:

[96]        
The plaintiff is entitled to damages of $211,041 which represents
85% of the total and reflects the defendant’s liability for the accident.

Costs

[97]        
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