IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130604

Docket: 09-5631

Registry:
Victoria

Between:

Christopher
Andrusko

Plaintiff

And

Alison Ellen
Alexander and

Lee Renforth
Hickman

Defendants

Before: The Honourable Madam
Justice Fitzpatrick

Reasons for Judgment

Introduction

[1]            
The plaintiff, Christopher Andrusko, was involved in a motor vehicle
accident on January 3, 2008 in Fort St. John. His vehicle collided with the
vehicle driven by the defendant, Alison Alexander, and owned by her husband,
the defendant Lee Hickman. Both were driving on a wintry afternoon and
approaching each other from opposite directions on the same street. Mr. Andrusko
hit Ms. Alexander’s car while she was trying to make a left-hand turn.

[2]            
Both parties blame the accident on the other, so liability or degrees of
liability are in issue.

[3]            
Mr. Andrusko claims injuries arising from the accident relating to
his neck, left shoulder, leg and low back. The low back pain is said now to be
chronic. He claims non-pecuniary losses, loss of earning capacity, cost of future
care, and special damages.

[4]            
Therefore, the issues for determination are:

 1.       Who is liable
for the accident?

 2.       If
liability on the part of the defendants is established, what are the proper
damages to be assessed?

The Facts

Prior to the Accident

[5]            
Mr. Andrusko is currently 26 years old. He has limited education,
having only completed Grade 10.

[6]            
Since he left school at the age of 16 years, he has had a number of
jobs, mostly involving physical labour. He started as a fry cook at Kentucky
Fried Chicken. From 2002 to 2004, he was employed in Edmonton, Alberta as a
labourer doing basic carpentry work. From 2004 to 2006, he was employed in
Gibsons, B.C. as a car detailer, which job involved cleaning and washing cars.

[7]            
He returned to Fort St. John in 2006 and obtained employment at Joy
Propane earning $16 per hour. Joy Propane does some bulk sales of propane, but
it is largely a retail supplier of fuel. It conducts its business in two areas.
Firstly, it operates a commercial side where commercial vehicles will pull up
and load the propane. In addition, customers will come and fill up the normal
type of cylinders that you see on barbecues. Secondly, there is a vehicle
division where a fuel attendant will fill up a vehicle just as you would
normally do at a gas station.

[8]            
Mr. Andrusko was a fuel attendant and labourer. He worked on both
sides of the business. As part of the commercial side, he was involved in
pumping fuel and dealing with all types and sizes of propane tanks, from small
20 pound ones for the barbecue going up to 100 pound tanks for commercial
purposes. When full, these tanks would be almost double the weight as when
empty. Thus, dealing with these tanks required physical effort. There was less
physical effort required while working on the vehicle side of the business.

[9]            
Mr. Andrusko was employed by Joy Propane at the time of the
accident. His boss, Steven Stanway, described Mr. Andrusko as a reliable
and hard worker. He also described an incident involving Mr. Andrusko that
caused him to conclude that Mr. Andrusko was honest and forthright. Mr. Stanway
indicates that prior to the accident, Mr. Andrusko had no difficulty in
completing his duties.

[10]        
Mr. Andrusko has been in a long-term relationship with Jody Stroud
for about eight years. She is also 26 years old and employed as a receptionist.
They met in 2004 and began living together shortly thereafter. They currently
live in Fort St. John, and at the time of the trial, they were engaged to be
married in the spring of 2013.

[11]        
Mr. Andrusko described himself as having no difficulty in
completing his physically demanding jobs prior to the accident. In particular,
he says that he had no neck, shoulder or low back pain. This evidence is
confirmed by Ms. Stroud, who also said that Mr. Andrusko was in good
health. She did not observe any neck, left shoulder or low back pain, or any
numbness in his left leg before the accident.

[12]        
Although Mr. Andrusko was involved in a motor vehicle accident in
2003, there were no injuries to his neck and back in that accident.

The Accident

[13]        
100^th Street in Fort St. John is a major thoroughfare. It has
two lanes of travel in both the north and southbound directions. It also has
parking lanes on each side. The cross streets are Avenues similarly numbered
such that the numbers increase as you move northbound. There is no traffic
light at the intersection of 100^th Street and 102^nd
Avenue where the accident occurred.

[14]        
The accident occurred a little after 4 p.m. on January 3, 2008. Dusk was
approaching and it was a snowy day in Fort St. John. The roads were slippery
and covered in compact snow.

[15]        
Mr. Andrusko was 21 years old at the time of the accident. He had
borrowed Ms. Stroud’s 1990 Chevrolet Cavalier to go to work. He had left
his job at Joy Propane around 4 p.m. and was driving to the Tim Horton’s to get
Ms. Stroud a coffee. He was wearing his seatbelt. He denies that he was
tired after a day at work or that he was in a hurry to get to Tim Horton’s. He
turned onto 100^th Street around 93^rd Avenue and was
proceeding northbound on 100^th Street in the lane nearest to the
centre line. At the stop light at 101^st Avenue, Mr. Andrusko
stopped at a red light and was first in line with no cars ahead of him.
Accordingly, he had a clear unobstructed view along 100^th Street. He
then proceeded on the next green light, approaching the intersection at 102^nd
Avenue. He was familiar with the intersection, having driven it many times.

[16]        
At the same time, Ms. Alexander was driving southbound on 100^th
Street in a 1995 Dodge Neon owned by her spouse, Mr. Hickman. She was
approaching the intersection at 102^nd Avenue, where she intended to
make a left turn. She was also in the lane of travel nearest to the centre
line.

[17]        
From this time forward, the evidence from Mr. Andrusko and Ms. Alexander
widely differs.

[18]        
What is uncontroversial, however, is that Mr. Andrusko’s vehicle
struck the right back passenger side of Ms. Alexander’s vehicle with the
front right passenger side of his vehicle as Ms. Alexander attempted her
left hand turn in front of Mr. Andrusko. Ms. Alexander’s vehicle spun
and ended up facing west on 102^nd Avenue, the opposite direction
from her path of travel. Mr. Andrusko also veered off and spun around,
coming to a stop in the lane of oncoming southbound traffic about three to four
car lengths beyond the intersection. He managed to pull the vehicle back into
the northbound lane and then parked further up on 100^th Street.

[19]        
Mr. Andrusko described the impact as “pretty severe”. Both of the
airbags in Mr. Andrusko’s vehicle deployed. His vehicle sustained damage
at the front passenger side estimated at a value of $4,227.93, causing ICBC to
write it off.

After the Accident

[20]        
Immediately after the accident, Mr. Andrusko was attended to by
paramedics, but he declined to receive medical treatment at the time. The
paramedics did notice a seatbelt line on Mr. Andrusko, presumably from the
impact, and they suggested that he would probably be sore. A paramedic recommended
that he visit the emergency room at the hospital. Mr. Andrusko did not do
so, although he says that his neck, left shoulder and back started to bother
him.

[21]        
The RCMP also attended the scene, and Mr. Andrusko gave the police
a statement. No traffic infractions were ticketed as a result of the accident.

[22]        
After giving his statement, Mr. Andrusko found a camera in his car
and went about taking various pictures of the vehicles. He also cleaned out his
car while waiting for his friend, Josh Woods, to pick him up. Immediately
afterwards, Mr. Andrusko and Mr. Woods went to Wal-Mart to get the
photographs developed. He then went home.

[23]        
Over the next few days, Mr. Andrusko had a sore and stiff neck and
left shoulder. After a day or two, he started to feel lower back pain. Again,
this evidence was confirmed by Ms. Stroud, who observed him experiencing
pain in his neck, shoulder, low back and left leg. Ms. Stroud also
observed that the neck and left shoulder pain would come at the same time, as
would the low back pain and left leg numbness.

[24]        
Mr. Andrusko went to a walk-in clinic in the first few days after
the accident and saw Dr. Brussow. Later, he would see his family doctor, Dr. Van
Zyl. Dr. Van Zyl prescribed various medications, including sleeping pills,
muscle relaxants and anti-inflammatory drugs. He began taking this prescription
medication in January 2008 and continues to take this medication as needed to
this day.

[25]        
Mr. Andrusko has tried certain treatments over the years to address
his injuries. Shortly after the accident, beginning on January 11, 2008, he
started to see a chiropractor at North Peace Chiropractic. He regularly saw a
chiropractor during 2008 and into early 2009. He obtained some relief but found
that the pain returned about a week later.

[26]        
After being disappointed with the results from the chiropractor, Mr. Andrusko
was referred by Dr. Van Zyl to a physiotherapist for treatment. He began
treatment at Fort St. John Physio Clinic on January 30, 2009 and regularly saw
a physiotherapist during 2009 (eleven visits), 2010 (three visits), 2011 (four
visits), and 2012 (three visits). He was continuing to see a physiotherapist at
the time of trial.

[27]        
Mr. Andrusko also tried massage therapy one time in August 2008 but
decided that it did not assist him.

[28]        
Fortunately, Mr. Andrusko only missed one day off work. He returned
to his job at Joy Propane, although he was put on lighter duties on the vehicle
side. He did, from time to time, lift 20 or 30 pound tanks after that time, but
he was no longer involved in lifting the larger 100 pound (when empty) tanks as
he had previously done. His new duties involved filling propane tanks in
vehicles, which required some bending and turning for smaller cars. Generally,
these lighter duties did not stress his lower back. Nevertheless, he still
indicated that his back was irritated and would bother him from time to time as
a result of his job at Joy Propane.

[29]        
In March 2009, Mr. Andrusko was let go from Joy Propane for
fighting with a customer. He then obtained a temporary job as a labourer for
about a month.

[30]        
Later, in 2009, he obtained a job at H2Oasis as a delivery driver and
bottle washer. He indicates that his job involved twisting, turning and
bending, so his back was irritated again. As part of his job, he was required
to work with five gallon tanks of water. He left his job at H2Oasis after a
change in management and after an issue developed with his employer about a
repair bill.

[31]        
In the summer of 2010, Mr. Andrusko obtained a labourer position at
DGS Astro Paving (“DGS”). His friend, Jeffrey Higgins, who was working as a
foreman there, got him the job. DGS is involved in the construction of roads,
parking lots and driveways. This is a seasonal job which requires a rigorous
schedule from the spring (April/May) to the time the snow flies (usually
November). Mr. Andrusko was required to work 12 to 16 hour days about six
to seven days a week. Many of his initial duties included very physical work,
including working with heavy materials and manual shovelling. In addition, he
operated various pieces of equipment.

[32]        
Mr. Higgins was aware of Mr. Andrusko’s low back problems when
he was hired at DGS. He gave Mr. Andrusko certain lighter duties as a
worker in his crew, but he did not play favourites. Mr. Higgins confirmed
that Mr. Andrusko would complain about his back from time to time,
although he did not consider Mr. Andrusko to be a complainer.

[33]        
Mr. Andrusko was later promoted to the position of lead hand at DGS
in early 2011, which resulted in him doing less labour work and more
supervisory work.

[34]        
Mr. Andrusko says that often his neck, shoulder and low back will
bother him after work at DGS such that he has to medicate with muscle relaxants
when he gets home. He often experiences pain when running equipment that
requires him to look behind. When this happens, his shoulder and neck stiffen
up and he gets intermittent pain. This happens more frequently by the end of
the working season, but it improves over the winter months when he collects
employment insurance.

[35]        
Mr. Andrusko continued with his seasonal job at DGS for the 2011
and 2012 seasons. In November 2012, at the end of this season, he obtained a
temporary job for about two weeks at Haycove Contracting, where he did snow
removal using a bobcat. He indicates that his back bothered him while operating
the bobcat.

[36]        
At the time of the trial, Mr. Andrusko had applied for employment
insurance and was waiting to hear back from the government. In the meantime, Mr. Andrusko
was also studying to get his Class 3 driver’s license.

[37]        
Mr. Andrusko’s evidence is that he has continued with his
employment duties since the accident, but that he has had pain and numbness
since that time. His evidence is corroborated by that of Ms. Stroud, who
observed him coming home from work at Joy Propane, H2Oasis and DGS in pain from
completing his duties. Ms. Stroud also confirmed that his pain was more
severe at the end of the season with DGS. She said that the pain was severe at
least once a week. She also confirmed that while his injuries have improved
since the accident, the level of those injuries has stayed the same for the
last two years.

[38]        
Mr. Andrusko’s injuries have affected his day-to-day activities. He
appears to have help doing the more physical chores at their home, including
snow shovelling and lawn mowing. On long drives, he experiences pain and has to
stop and stretch to alleviate the pain. He cannot sit long to play video games
or work in his music studio. He also has trouble starting the lawnmower.
Finally, he is more irritable and cranky in his relationship with Ms. Stroud.

[39]        
In terms of the duration of his injuries, Mr. Andrusko indicates
that his neck and shoulder bother him at least twice a week. He indicates that
his neck and shoulder are staying the same at this point in time.

[40]        
Mr. Andrusko’s complaints about his lower back are more serious. He
says that he has low back pain or soreness just below his beltline every day.
Some days are worse than others when he experiences sharp pain. He has also had
some numbness in his left leg since the accident, which is present all the
time. Twisting and bending aggravates the pain. He indicates that on a bad day,
about once or twice per week, the pain is 10 out of 10. On average, he rates
his pain as 6/7 out of 10. He tries to use sleeping pills, muscle relaxants and
anti-inflammatories when the pain is too bad, but he finds that they can make
him very drowsy. He says that he cannot function at work when he is drowsy, and
given his line of work, he understandably has safety concerns if he is less
than alert.

[41]        
 Mr. Andrusko does not use any aid for his injuries. He did buy a
back belt, but he was advised some years ago not to use it. Although he is not
an avid exerciser, he regularly completes exercises for his core and his left
leg about three times a week in his home.

[42]        
Mr. Andrusko is also an avid music lover. In 2009, he started a
small business named “Too Die for Recordz”, in which he operates as a mobile
disc jockey for small events. He also constructed his own music studio, where
he likes to make, mix, record and produce music. He has invested quite a sum of
money purchasing equipment for this venture, although his gross profit from
this venture has been nominal: 2009 – $4,242; 2010 – $1,085; and 2011 – $1,008.
He describes this more as a hobby, which is evident when he calculates his net
income losses for these years.

[43]        
Mr. Andrusko spends considerable time working on his music
business, particularly during the off-season from his job at DGS. He can work
for eight to ten hours a day up to seven days a week. While he was questioned
regarding his ability to sit for so long, he indicated that he was able to get
up and move around to alleviate the pain caused by sitting for prolonged
periods of time.

[44]        
Mr. Andrusko is very interested in developing his music business to
the point of making more money. He has not taken any music engineering courses,
nor does he have any plans to do so. He describes himself as more self-taught.

[45]        
Mr. Andrusko is fairly uncertain about his future. He currently
plans to continue to live in Fort St. John and stay in the employ of DGS where
he makes what he calls “good money” (about $52,000 per year). He may apply to
be a foreman at DGS in the future. He wants to try to get his Class 3 driver’s
license, which would allow him to operate larger trucks.

[46]        
He is not sure how he could continue with either his present position or
as a truck driver if his low back condition worsened, given the physical
requirements of both jobs. He does not see a sedentary office job in his future
given his educational limitations. In addition, given his somewhat prickly
personality, he quite candidly admits that he would prefer not working in a job
where he would have to deal with the public.

Credibility and Reliability of Evidence

[47]        
Credibility arose on two points: firstly, the evidence of Mr. Andrusko
and Ms. Alexander in respect of liability; and secondly, Mr. Andrusko’s
evidence on the damage issues.

[48]        
The factors to be considered when assessing credibility were summarized
by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398:

[186]    Credibility involves an
assessment of the trustworthiness of a witness’ testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness’ evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness’ testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to lie,
and the demeanour of a witness generally (Wallace v. Davis, [1926] 31
O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.)
[Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128
(S.C.C.)). Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole and
shown to be in existence at the time (Faryna at para. 356).

[49]        
If the plaintiff’s account of his or her change in physical, mental, or
emotional state as a result of the accident is not convincing, then the
hypothesis upon which any expert opinions rest will be undermined: Samuel v.
Chrysler Credit Canada Ltd., 2007 BCCA 431 at paras. 15, 49-50.

[50]        
I will address the credibility issues below.

Liability

The Parties’ Positions

[51]        
As stated above, Mr. Andrusko was driving along 100^th
Street after the light had turned green at the intersection of 101^st
Avenue. Mr. Andrusko estimated his speed at 35-40 km/hour although he was
not particularly sure of his speed. He indicated in his evidence that he was
driving at an appropriate speed and definitely below the speed limit of 50
km/hour.

[52]        
As he was proceeding toward 102^nd Avenue, he noticed Ms. Alexander
coming into the intersection and that her car started to slide. He could not
say for sure whether he saw a turn signal on her car, but he said that this
left turn by Ms. Alexander was unexpected and that it occurred just before
the crosswalk as he was entering the intersection. He estimated that he was
only a car or one-and-a-half car lengths away when she started to turn into the
intersection. Mr. Andrusko said that he applied the brakes, but they
locked up and he hit her vehicle on the back of the passenger side.

[53]        
There is a significant divergence in the parties’ evidence about how the
accident happened, and in particular, what other vehicles or pedestrians were
involved.

[54]        
Ms. Alexander is 55 years old and lives in Fort St. John with Mr. Hickman.
She has lived there for 23 years and she is very familiar with the
intersection. She says that she was returning home from the bank. She confirmed
Mr. Andrusko’s evidence about the weather, in that it was overcast and the
roads were snow-covered and icy underneath.

[55]        
Ms. Alexander’s evidence is that she turned right onto 100^th
Street at 106^th Avenue, pulling into the right lane (beside the
curb) and proceeding south down the street. At about ¾ of a block before 102^nd
Avenue, she moved into the left lane so that she could turn left onto 102^nd
Avenue. At about the same time, she put her left turn signal on. She says that
she was travelling behind an SUV, which eventually slowed and stopped just into
the intersection. She stopped behind the SUV. From there she says that she
observed a vehicle stopped in the northbound curb lane. She also says that she
saw a woman stopped and standing on the far corner near to where the northbound
vehicle was stopped. She waited to turn onto 102^nd Avenue. She says
that she looked around the SUV and did not see anything coming. In her words,
she said that she had room to move around the SUV, so she proceeded to turn
left. As she pulled out, she saw Mr. Andrusko’s vehicle coming toward the
intersection. She tried to get out of his way; as she put it, she “stepped on”
the gas to accelerate her vehicle out of the way. She estimates that she was in
the middle of the intersection when the collision occurred.

[56]        
Mr. Andrusko says that there was no SUV in the southbound lane, as Ms. Alexander
suggests, or any pedestrian standing on the street corner. Further, he does not
recall any vehicle alongside his vehicle going northbound.

[57]        
After the collision, Mr. Andrusko got out of his vehicle and ran
over to see if Ms. Alexander was all right. He said that she was getting
hysterical and that she insinuated that he was speeding and to blame for the
accident. Mr. Andrusko said that he replied that she had made an illegal
turn in front of him. Ms. Alexander says that Mr. Andrusko said that
he was sorry and that he was going too fast, which he denies. She denies that
she said anything to him.

[58]        
Ms. Alexander also says that right after the accident, a woman came
up to her and said something to the effect, “if you need a witness, you can
call me”. She says that this woman gave her a business card. On
cross-examination, Ms. Alexander said that this woman was the driver of
the vehicle stopped just before the intersection in the northbound lane of
travel. She put the card in her pocket. Ms. Alexander does not recall or
did not relate the specifics of this conversation later in her conversation
with Constable Grainger of the RCMP, but she does say that she gave him the
business card and that he later returned it to her. She then put it back in her
coat pocket. She has no idea what happened to that business card. She never
looked at it, so she has no idea what it said.

[59]        
Ms. Alexander’s husband picked her up, as her car was not
driveable. She was stiff and sore the next day with some bruising, although she
did not seek any medical treatment.

[60]        
Constable Grainger attended at the scene shortly after the accident. He
interviewed both Mr. Andrusko and Ms. Alexander. It is notable that
the Constable’s records, including the near contemporaneous notes taken just
after the accident and the interviews, confirm what Ms. Alexander told him
about the accident. He says that Ms. Alexander informed him that she was
making a left turn onto 102^nd Avenue when she was struck by Mr. Andrusko’s
vehicle. She made no mention of Mr. Andrusko allegedly speeding into the
intersection. Nor did she mention anything about a pedestrian stopped on the
corner or any other vehicles stopped at the intersection at the time. Finally,
the Constable had no recollection or note of Ms. Alexander having given
him a business card of a witness. His Occurrence Report, which was provided to
the parties, indicates that no witnesses were “carded”. He indicates that if he
had been so informed, that person or witness would have been contacted.

[61]        
Constable Grainger filled in his report while in his police cruiser
immediately after he had interviewed the parties and cleared the scene. While
he indicated during cross-examination that it is possible that he misplaced
this business card, I believe it is unlikely. The Constable was the most
objective and calm person on the scene and clearly would have recognized the
need to identify a witness to the accident as an important detail of his
investigation, particularly if Ms. Alexander had made a point of giving
this card to him. Ms. Alexander was in shock and by her own admission, not
thinking straight.

[62]        
I find that Ms. Alexander’s evidence concerning this card is
confusing and suspect. I find as a fact that even if Ms. Alexander had
received a card from someone at the scene, she did not give it to Constable
Grainger.

[63]        
Constable Grainger indicated that if he can form an opinion of fault
arising from his investigation at the accident, he would do so. His report
indicates that “Alexander failed to yield the right of way to Andrusko in this
collision”.

The Law

[64]        
The Motor Vehicle Act, R.S.B.C. 1996, c. 318 addresses the
rules of the road while making left hand turns:

Yielding right of way on left turn

174 When a vehicle is in
an intersection and its driver intends to turn left, the driver must yield the
right of way to traffic approaching from the opposite direction that is in the
intersection or so close as to constitute an immediate hazard, but having
yielded and given a signal as required by sections 171 and 172, the driver may turn
the vehicle to the left, and traffic approaching the intersection from the
opposite direction must yield the right of way to the vehicle making the left
turn.

[65]        
The leading decision on assigning liability arising from a collision
where a vehicle is exercising a right of way and the other vehicle does not
yield is found in Walker v. Brownlee, [1952] 2 D.L.R. 450 at 461
(S.C.C.). There, Cartwright J. stated:

While the decision
of every motor vehicle collision case must depend on its particular facts, I am
of opinion that when A, the driver in the servient position, proceeds through
an intersection in complete disregard of his statutory duty to yield the
right-of-way and a collision results, if he seeks to cast any portion of the
blame upon B, the driver having the right-of-way, A must establish that after B
became aware, or by the exercise of reasonable care should have become aware,
of A’s disregard of the law B had in fact a sufficient opportunity to avoid the
accident of which a reasonably careful and skilful driver would have availed
himself; and I do not think that in such circumstances any doubts should be
resolved in favour of A, whose unlawful conduct was fons et origo mali.

[66]        
The test from Walker was followed in Pacheco
(Guardian ad litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.). In
that case, a plaintiff cyclist had entered the intersection and then the
defendant commenced a left-hand turn with her vehicle. The trial judge found
that the defendant had failed to yield the right of way and that the plaintiff
cyclist was “obviously and clearly so close so as to constitute an immediate
hazard”. The Court of Appeal overturned the trial judge’s finding that the
cyclist was contributorily negligent. The Court, adopting the comments in Walker
above, stated:

[10]      …A defendant who wishes to make a
left hand turn in an intersection has an obligation to yield to oncoming
traffic which is in the intersection under the provision of s. 176 of the Motor
Vehicle Act.

[11]      The plaintiff was not bound to guard
against every conceivable eventuality but only against such eventualities as a
reasonable person ought to have foreseen as being within the ordinary range of
human experience. The plaintiff was entitled to proceed on the assumption that
all other vehicles will do what it is their duty to do, namely observe the
rules regulating traffic.
…

[15]      In my opinion, a driver who wishes to
make a left hand turn at an intersection has an obligation not to proceed
unless it can be done safely. Where each party’s vision of the other is blocked
by traffic, the dominant driver who is proceeding through the intersection is
generally entitled to continue and the servient left-turning driver must yield
the right of way. The existence of a left-turning vehicle does not raise a
presumption that something unexpected might happen and cast a duty on the
dominant driver to take extra care. Where the defendant, as here, has
totally failed to determine whether a turn can be made safely, the defendant
should be held 100 percent at fault for a collision which occurs.

…

[18]      In my
opinion, when a driver in a servient position disregards his statutory duty to
yield the right of way and a collision results, then to fix any blame on the
dominant driver, the servient driver must establish that after the dominant
driver became aware, or by the exercise of reasonable care should have become
aware, of the servient driver’s own disregard of the law, the dominant driver
had a sufficient opportunity to avoid the accident of which a reasonably careful
and skilful driver would have availed himself. In such circumstance any
doubt should be resolved in favour of the dominant driver. …

[67]        
The principles from the above cases were recently affirmed in Nerval
v. Kehra, 2012 BCCA 436. Harris J.A. found that the analysis begins with
determining whether the left-turning driver has satisfied the onus of proving
that the oncoming vehicle was not an “immediate hazard”:

[33] The principles laid down in Pacheco lead
to the conclusion that the starting point of the analysis is that when a left
turning driver is assessing making a left turn in an intersection he or she
must yield the right of way to oncoming traffic unless it is not an immediate
hazard. Describing a driver as dominant means no more than that driver has
the right of way, whereas the servient driver has the obligation to yield the
right of way. The obligation imposed by s. 174 on the left turning
vehicle is that it “must yield the right of way to traffic approaching from the
opposite direction that is in the intersection or so close as to constitute an
immediate hazard”. A left turn must not be commenced unless it is clearly safe
to do so. If there are no vehicles in the intersection or sufficiently close
to be an imminent hazard, the driver may turn left and approaching traffic must
yield the right of way. In other words, if a left turning driver complies with
his or her obligation only to start the left turn when no other vehicles are in
the intersection or constitute an immediate hazard, then the left turning
driver assumes the relationship of being the dominant vehicle and approaching
vehicles become servient and must yield the right of way.

[34]      As observed in Salaam v. Abramovic, 2010
BCCA 212 at para. 33, the words “immediate hazard” are “used to determine
when a vehicle may lawfully enter an intersection. They determine who is the
dominant driver, but do not, by themselves, define the standard of care in a
negligence action.”

[35]      The effect of s. 174 is to cast the burden of
proving the absence of an immediate hazard at the moment the left turn begins
onto the left turning driver. This result flows inevitably from the wording of
the section itself, given the nature of the absolute obligation the section
creates. If a left turning driver, in the face of this statutory obligation,
asserts that he or she started to turn left when it was safe to do so, then the
burden of proving that fact rests with them.

[Emphasis added.]

[68]        
The evidence clearly indicates that Mr. Andrusko’s vehicle was an
immediate hazard when Ms. Alexander began her left-hand turn. As the court
notes in Nerval at para. 43, this determination is largely a
function of speed and distance from the intersection. Mr. Andrusko’s
evidence was that Ms. Alexander turned unexpectedly in front of him and
that she was only a short distance away when she began her turn.

[69]        
Ms. Alexander does not seriously suggest otherwise and concedes, at
least in part, that she was to blame for the accident. She did not see Mr. Andrusko’s
car until she began her turn and it was too late by that time to stop and avoid
the collision. On cross-examination, Ms. Alexander said that she was
stopped behind the SUV and had room to move around it and attempt the left
turn. Only when she was in the intersection making the turn did she first
observe Mr. Andrusko. She said, “I was turning and there he was”. She
acknowledged that if she had seen Mr. Andrusko, she would not have turned
at all.

[70]        
I find as a fact that Ms. Alexander did not have a clear view of Mr. Andrusko’s
oncoming vehicle before she began to make the left-hand turn. I further find
that while commencing her turn, Mr. Andrusko’s vehicle constituted an
“immediate hazard” in that Ms. Alexander could not complete that left-hand
turn without risking a collision. As such, Ms. Alexander has not met the
onus of showing that it was safe to complete the left-hand turn in these
circumstances.

Contributory Negligence

[71]        
Despite conceding some fault for the accident, Ms. Alexander asserts
that Mr. Andrusko was also to blame for the collision and was therefore
contributorily negligent.

[72]        
As discussed in Nerval, this type of analysis follows
after application of the “immediate hazard” test as the second aspect of
determining fault for the collision:

[37]      The second aspect of the burden relates to proving
that despite being the dominant driver, Ms. Khehra nonetheless was
negligent and at fault for causing or contributing to the accident. Here,
although Ms. Khehra had the right of way, she could exercise that right
only in a safe manner. The trial judge correctly relied on the statement of
principle from para. 18 of Pacheco, quoted above, in
assessing the evidence and reaching his conclusions.

[38]      Whether a through driver is dominant turns on
whether the driver’s vehicle is an immediate hazard at the material time, not
why it is an immediate hazard. Dominance identifies who must yield the right of
way. One consequence of this analysis is that negligence on the part of a
through driver does not disqualify that driver as the dominant driver. The
through driver remains dominant, even though their conduct may be negligent.
Indeed, the through driver’s fault may be greater than the servient driver’s
fault. In other words, a through driver may be an immediate hazard even though
that driver is speeding and given her speed would have to take sudden action to
avoid the threat of a collision if the left turning driver did not yield the
right of way. The correct analysis is to recognize that the through driver
is breaching his or her common law and perhaps statutory obligations and to
address the issue as one of apportioning fault, not to reclassify the through
driver as servient based on the degree to which the through driver is in breach
of her obligations.

[Emphasis added.]

[73]        
In accordance with s. 4 of the Negligence Act, R.S.B.C.
1996, c. 333, when a plaintiff contributes negligently to causing his or
her own injury, the court must determine relative degrees of fault. The correct
inquiry is whether the plaintiff failed to take reasonable care for his or her
own safety, and whether that failure was one of the causes of the accident: Bradley
v. Bath, 2010 BCCA 10 at para. 27.

[74]        
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: Alberta Wheat Pool v. Northwest Pile,
2000 BCCA 505 at paras. 45-46.

[75]        
Ms. Alexander asserts that Mr. Andrusko failed in respect of various
statutory duties such that he contributed to the accident.

[76]        
Firstly, it is alleged that Mr. Andrusko breached s. 144 of
the Motor Vehicle Act by speeding and driving without due care and
attention:

Careless driving prohibited

144 (1) A person must not drive a motor
vehicle on a highway

(a) without due care and
attention,

(b) without reasonable
consideration for other persons using the highway, or

(c) at a speed that is excessive relative to the road,
traffic, visibility or weather conditions.

[77]        
Specifically, it is alleged that Mr. Andrusko was going too fast
for the winter road conditions he faced. However, I accept the evidence of Mr. Andrusko
and find as a fact that he was not speeding. He was starting from a dead stop
at the previous intersection. There was also no evidentiary basis upon which to
assert that Mr. Andrusko was driving without due care and attention. I
find that he was aware that Ms. Alexander’s vehicle was in the oncoming
lane, but he was surprised when she turned in front of him unexpectedly.

[78]        
It is also alleged that Mr. Andrusko acted negligently in not
stopping or slowing at the intersection given that other vehicles and
pedestrians were in and around the intersection at the time. Ms. Alexander
contends that Mr. Andrusko breached his statutory obligations arising
under ss. 159 and 179 of the Motor Vehicle Act:

Passing on left

159 A driver of a vehicle must not drive to the
left side of the roadway in overtaking and passing another vehicle unless the
driver can do so in safety.

…

Rights of way between vehicle and pedestrian

179 (1) Subject to section 180, the driver
of a vehicle must yield the right of way to a pedestrian where traffic control
signals are not in place or not in operation when the pedestrian is crossing
the highway in a crosswalk and the pedestrian is on the half of the highway on
which the vehicle is travelling, or is approaching so closely from the other
half of the highway that he or she is in danger.

…

(3) If a vehicle is slowing
down or stopped at a crosswalk or at an intersection to permit a pedestrian to
cross the highway, the driver of a vehicle approaching from the rear must not
overtake and pass the vehicle that is slowing down or stopped.

[79]        
This argument is largely based on Ms. Alexander’s evidence, as above,
that during her left-hand turn, there were two other vehicles ‒ the SUV in front of her
and a northbound vehicle stopped at the corner. In addition, she says that she
saw a pedestrian standing on the corner of the intersection near to the stopped
northbound vehicle.

[80]        
Mr. Andrusko had an entirely different recollection as to what was
occurring in the intersection. He does not recall seeing any other vehicles,
including both the SUV and the vehicle that Ms. Alexander says was stopped
at the northbound corner in the right lane. Finally, he does not recall seeing
any pedestrian on the corner.

[81]        
Overall, in my view, Mr. Andrusko’s evidence on these issues is
more consistent with the probabilities affecting this case. Mr. Andrusko
gave his evidence in a fair and straightforward manner and I consider that he
was a credible witness. He appropriately conceded where his recollection was
not clear. Overall, however, his evidence was consistent and clear.
Accordingly, I found Mr. Andrusko to be a reliable witness of the events
leading up to the accident.

[82]        
In contrast, Ms. Alexander’s evidence presented some difficulties
relating to both before and after the accident. While I appreciate that she was
doing her best to recall accurately, I consider that she failed in many material
respects.

[83]        
Ms. Alexander was clearly in some distress after the accident,
indicating that she was numb and shaky. She further acknowledged that she was
in shock after the accident and not thinking straight. She was very unclear on
many details about the accident, including the order in which the events
occurred. For example, she stated many times that she “believed” certain events
had occurred. When asked about her conversations with the paramedics and
police, she said it was “hard to remember”.

[84]        
Consistent with my conclusions on the reliability of Mr. Andrusko’s
evidence, I find that he did not admit to Ms. Alexander that he was
speeding. While he says that he may have apologized for the accident in a
general sense, I find that he did not acknowledge fault for the accident.

[85]        
Ms. Alexander’s story about the pedestrian and the driver of the
stopped northbound car is also suspect. In her direct examination, she only
said that some woman came up to her and gave her a business card. Only during
cross-examination did the further detail emerge that this “witness” was, in
fact, the driver of the stopped car. She then described this woman as 45 years
old with short sandy hair. Given that Ms. Alexander had little, if any,
recollection of speaking to Constable Grainger, however, I consider that her
recollection of these further details is not accurate.

[86]        
Given Ms. Alexander’s apparent views about who was at fault for the
accident at the time, obtaining a contact number for a witness would have been
an important matter for her. Despite that, no business card, if one was
obtained by her, materialized at the time. Even if there was a business card
from a witness, I accept Constable Grainger’s evidence that she did not give
any business card to him. While one might excuse Ms. Alexander, since she
was in shock at the time, she did not produce it even at a later time.

[87]        
Ms. Alexander also suggested in argument that Mr. Andrusko
should have stopped for the pedestrian standing on the street corner waiting to
cross 100^th Street. During her direct testimony, however, this did
not emerge as part of her explanation for turning left or even for her thought
process in thinking that she could turn safely because Mr. Andrusko would
stop for that pedestrian. As stated above, she did not even see Mr. Andrusko
until she had commenced her turn.

[88]        
This story about the pedestrian being ready to cross the street only
came out in cross-examination and only when Ms. Alexander was asked
questions about what she had told her husband in the car on the way home after
the accident.

[89]        
These various other factors ‒
such as the SUV, the stopped northbound vehicle and the pedestrian ‒ now raised by Ms. Alexander
are also noticeably missing from any later reporting on the accident and the
cause of the accident by Ms. Alexander.

[90]        
As noted above, Constable Grainger had no note of being told about any
of these matters by Ms. Alexander. Further, in the ICBC claim report filed
by Ms. Alexander on January 3, 2008, the same day as the accident, the
adjuster noted Ms. Alexander’s description of the accident. There is no
mention of any other cars, including the SUV and the stopped northbound
vehicle, or of a pedestrian. Nor is there any recorded note that, as she now
claims, she had assumed that Mr. Andrusko would stop to allow the
pedestrian to cross the street. Lastly, she did not mention to ICBC the
business card of the witness that she says she obtained. While I accept that
these ICBC notes are not necessarily accurate in terms of what Ms. Alexander
actually reported, Ms. Alexander has little recollection of what she did
say. She does acknowledge, however, that she did not relay these further facts
to the ICBC adjuster. Her explanation that she was unaware that she had to tell
them everything is difficult to understand since she would have known that ICBC
would attempt to determine fault for the accident.

[91]        
Lastly, the evidence does not support Ms. Alexander’s description
of the crosswalk and the pedestrian waiting to cross. There was no evidence at
the trial about there being a crosswalk traversing 100^th Street at
the intersection in question. Further, even accepting that there was a
pedestrian on the corner, there is no evidence that this pedestrian was trying
to cross 100^th Street at a crosswalk or otherwise. Ms. Alexander
says that the person was just standing on the corner and had not made any
movement to step into the street. This person might have been waiting to cross
102^nd Avenue. Or, assuming that the stopped northbound vehicle was
there, the pedestrian might have been talking to the driver of that vehicle.
Lastly, if this person really was waiting to cross 100^th Street,
with the inside northbound vehicle already stopped, it is reasonable to assume
that this pedestrian would have at least begun to venture into the street. Even
on Ms. Alexander’s evidence, this person did not do so.

[92]        
I conclude that Ms. Alexander’s evidence on these other matters at
the intersection is not reliable. I find as a fact that, contrary to Ms. Alexander’s
evidence, there was no stopped northbound car in the right lane. Nor was there
any pedestrian stopped on the corner waiting to cross 100^th Street,
whether in a crosswalk or otherwise.

[93]        
I accept Ms. Alexander’s evidence concerning the SUV proceeding in
front of her southbound on 100^th Street, but I find that the SUV was
not stopped in the intersection. I consider it more likely that, at some point
while she was proceeding down 100^th Street, the SUV would have
impeded her view of the oncoming vehicles, including that of Mr. Andrusko.
However, I find that as or just after she was commencing her left turn, the SUV
was not blocking her view and she turned or continued to turn anyway. In any
event, the presence of the SUV proceeding southbound through the intersection
just before Ms. Alexander turned was not a matter that would have put Mr. Andrusko
on notice of anything untoward at the intersection that should have caused him
to slow down or stop. His continuing through the intersection in these
circumstances did not violate any statutory requirement under the Motor
Vehicle Act.

[94]        
In light of these findings, Ms. Alexander has failed to satisfy the
onus upon her to establish contributory negligence on Mr. Andrusko’s part,
since there is no evidentiary basis for any arguments under ss. 144, 159
and 179 of the Motor Vehicle Act in relation to Mr. Andrusko’s
actions. In short, he did not act carelessly, there was no vehicle to pass on
the left and there was no pedestrian attempting to cross 100^th
Street, whether in a crosswalk or otherwise. In addition, the SUV did not pose
any issue. As such, Mr. Andrusko was entitled to proceed on
the assumption that Ms. Alexander would obey the rules of the road: Pacheco
at paras. 11, 15; Nerval at para. 29. She did not do
so. Accordingly, I find Ms. Alexander solely responsible for the
collision.

Causation

[95]        
The plaintiff must establish on a balance of probabilities that the
defendant’s negligence caused or materially contributed to an injury. The
defendant’s negligence need not be the sole cause of the injury so long as it
is part of the cause beyond the de minimis range. Causation need
not be determined by scientific precision: Athey v. Leonati, [1996] 3
S.C.R. 458 at paras. 13-17.

[96]        
The primary test for causation asks: but for the defendant’s negligence,
would the plaintiff have suffered the injury? The “but for” test recognizes
that an award of compensation for negligent conduct should be made only where a
substantial connection between the injury and the defendant’s conduct is
present: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-23. Causation
must be established on a balance of probabilities before damages are assessed.
As McLachlin C.J.C. stated in Blackwater v. Plint, 2005 SCC 58 at para. 78:

[78]      It is important to
distinguish between causation as the source of the loss and the rules of damage
assessment in tort. The rules of causation consider generally whether “but
for” the defendant’s acts, the plaintiff’s damages would have been incurred on
a balance of probabilities. Even though there may be several tortious and
non-tortious causes of injury, so long as the defendant’s act is a cause of the
plaintiff’s damage, the defendant is fully liable for that damage. The rules of
damages then consider what the original position of the plaintiff would have
been. The governing principle is that the defendant need not put the
plaintiff in a better position than his original position and should not
compensate the plaintiff for any damages he would have suffered anyway: Athey. Mr. Barney’s
submissions that injury from traumas other than the sexual assault should not
be excluded amount to the contention that once a tortious act has been found to
be a material cause of injury, the defendant becomes liable for all damages
complained of after, whether or not the defendant was responsible for those
damages.

[97]        
Mr. Andrusko called Dr. James Filbey, who was qualified as a
medical doctor with a speciality in physical medicine and rehabilitation and
electrodiagnostic medicine. His speciality is more commonly referred to as “physiatry”.
Dr. Filbey examined Mr. Andrusko and prepared a report on March 9,
2011. He also prepared supplemental reports dated May 13 and November 23, 2011.

[98]        
As will be discussed in more detail below, Dr. Filbey concluded
that Mr. Andrusko had a pre-existing pars interarticularis defect, which
is a situation where a bony ring in the vertebrae fails to turn into bone and
remains a fibrous tissue. This was asymptomatic before the accident. Dr. Filbey
concluded that Mr. Andrusko suffered soft tissue injuries which resulted
in neck, shoulder and low back pain and that the low back injuries caused the
pars defect to become symptomatic and contribute to the pain. Dr. Filbey
concluded that it was his opinion that “Mr. Andrusko’s current and ongoing
symptoms are a direct result of the MVA”.

[99]        
At the request of the defence, Mr. Andrusko was seen by Dr. Paul
Bishop for an independent medical examination in November 2011. Dr. Bishop
is a medical doctor. Although he does not have any recognized speciality from
the Royal College of Physicians and Surgeons, as Dr. Filbey has in
physiatry, Dr. Bishop has extensive experience in his clinical practice
relating to the spine and is involved in teaching and research relating to the
spine. He was qualified at the trial as having an expertise in non-operative
pathology and diseases of the spine. He provided his report dated November 8,
2011 and supplemental report dated May 23, 2012.

[100]      Dr. Bishop
similarly diagnosed Mr. Andrusko as having mechanical lower back and neck
pain. On cross-examination, he acknowledged that these injuries were caused by
the accident.

[101]     On the
basis of the medical opinions above, which I accept, particularly that of Dr. Filbey,
I conclude that Mr. Andrusko has established on a balance of probabilities
that his injuries, as will be described below, were caused by the accident.

Damages

[102]     Mr. Andrusko’s
position at trial was that he sustained injuries to his neck, shoulder and low
back, and that he has continuous numbness radiating in his left leg. He said
that the neck and left shoulder pain improved over the first year or so, but
that this pain is now intermittent and occurs about twice per week. Mr. Andrusko’s
major complaint is that since the accident, he has suffered a continuous low
back injury, which is now chronic. This low back injury is to be considered in
conjunction with the previously asymptomatic pars interarticularis defect at L5
(which is also called spondylolysis).

[103]     Ms. Alexander’s
position is that the neck and shoulder injuries were resolved in one year.
Further, Ms. Alexander takes the position that Mr. Andrusko’s low
back pain arose from mild to moderate soft tissue injuries that were resolved
by late 2011.

Summary of Lay Witness Evidence

[104]    
The medical clinical records confirm complaints of pain and numbness in
the left leg arising immediately following the accident and complaints of
ongoing pain in the lower back continuing to at least October 2009, over a year
and a half after the accident:

January 4, 2008 – Dr. Brussow … has muscle pains – Meds
given; O/e stiff neck … muscular.

January 17, 2008 – Dr. Brussow – Pt was in MVC and has
back pain .. lumber [sic] area and sciatica into his [left] leg … Meds
did help but he went to chiropractor and that helped somewhat.

March 26, 2008 – Dr. Van Zyl – still with some pain in
neck and lower back after recent accident … O: … some tenderness over
trapezius; A: myalgia (post traumatic); P: … meds

April 23, 2008 – Dr. Van Zyl – still seeing
chiropractor, reports pain in lower back, seems like the muscle relaxants
worked for the neck spasms at least; O: multiple triggerpoints in lower back;
A: post traumatic backpain; P: reassured. advice given on stretches, sleep
habits etc.

June 12, 2008 – Dr. Van Zyl – still co lower back pain,
says that chiropractor visits not helping, is there an alternative? suggests
massage therapy; A: post MVA, mechanical backpain.

October 20, 2008 – Dr. Van Zyl – still with pain after
accident requests nalgesia; succeeded in all conservative measures; A: myalgia;
P: reassured, see meds.

October 19, 2009 – Dr. Van
Zyl – doing well, still with ongoing backpain after accident last year. no
other problems; A: ongoing mechanical backpain; P: refill of meds

[105]     Dr. Van
Zyl moved back to South Africa about two years ago and did not testify as to
his records.

[106]     I have
already indicated that Mr. Andrusko undertook treatments with a
chiropractor for about one year after the accident. He then began visits with a
physiotherapist in January 2009, a treatment which he found was more helpful.
As to the ongoing nature of his symptoms at that time, the physiotherapy
records disclose a note on January 30, 2009 that his neck and shoulders were
stiff. Mr. Andrusko says that this is consistent with the neck and
shoulder pain which was continuing, albeit on an intermittent basis, at that
time.

[107]     During
cross-examination, Mr. Andrusko did say that by April 2008, his neck,
shoulder and back were not affecting him as much. Mr. Andrusko also agreed
during cross-examination that by January 2010, he was only experiencing lower
back problems, although he contended that there continued to be intermittent
neck and shoulder problems.

[108]     Mr. Andrusko
gave evidence as to the history of his medical complaints arising from the
accident in a straightforward manner. I have related some of that history
above. Importantly, however, he relates that his improvement has plateaued. He
says that at this time, his low back pain and leg numbness remain a fairly
constant companion and the neck and shoulder pain arise intermittently. Further,
at times, his low back pain is severe depending on his activities at work. He
has attempted to address his pain and numbness through exercise and, most
recently, physiotherapy.

[109]     His
complaints are corroborated by the evidence of his fiancé, Ms. Stroud. Moreover,
somewhat more independent evidence was given by Mr. Higgins, his friend
and former co-worker at DGS, concerning ongoing back pain. Mr. Higgins was
aware of Mr. Andrusko’s low back problems. At times, Mr. Andrusko
would mention having problems and that he was taking a break. Mr. Higgins
also confirmed that Mr. Andrusko had complaints only a month before Mr. Higgins
gave testimony. Mr. Higgins did not consider that Mr. Andrusko was a
“complainer”. Finally, the most independent evidence came from Mr. Stanway,
his boss at Joy Propane, who also confirmed that Mr. Andrusko was put on
lighter duties after the accident. While Mr. Andrusko did not call his
current supervisor to give evidence at trial, this is understandable since he
does not want to advertise his low back difficulties to his current employer.

[110]     The
defence’s submissions as to the extent of Mr. Andrusko’s injuries are
principally directed toward the limited health care that Mr. Andrusko
obtained after the accident and the fact that he continued to work the same
type of job after the accident.

[111]     The
defence points to the fact that he did not obtain medical treatment at the
scene, but that can be balanced against the fact that he sought medical
treatment the day after the accident. The defence also points to the 15
chiropractic treatments in 2008, followed by the 11 physiotherapy sessions in
2009. It is true that treatments continued to taper off after that time, with
10 physiotherapy sessions from the beginning of 2010 until November 2012.
However, Mr. Andrusko provided evidence that he had difficulty taking time
off while working at DGS beginning in early 2010. That would explain the fewer
attendances. In addition, during the off-season from working at DGS, there
would obviously be less physical strain on his body that would typically give
rise to the need for such treatments. Consistent with the DGS working season,
he had two attendances at the Fort St. John Medical Clinic relating to the
accident injuries in each of 2010 and 2011, early and late in the calendar
year. His only attendance in 2012 was also in May.

[112]     The fact
that he takes little medication also does not indicate a lack of ongoing
injury. He takes medication only occasionally because he is concerned about
being less than alert at work.

[113]     The defence
also suggests that the medical records do not support Mr. Andrusko’s
ongoing complaints of pain. Yet a review of the records shows ongoing
complaints of back pain into 2012. This is less so in relation to the
intermittent neck and shoulder pain. This argument raises the same issues as
were addressed in Edmondson v. Payer, 2011 BCSC 118 at paras. 30-39,
aff’d with caveat 2012 BCCA 114 at paras. 29-30, concerning whether
medical records really do constitute a true record of what a patient might be
experiencing ‒ or
not experiencing ‒
at the time. Mr. Andrusko specifically stated that while the records may
indicate only back pain, he did not tell the doctor about all of his complaints
of pain at every visit. Rather, he likely mentioned only what was bothering him
the most. In that regard, the back pain was always his major complaint. I
accept his evidence of the extent of his injuries, as I consider Mr. Andrusko
to be a stoic individual. As confirmed by Ms. Stroud and Mr. Higgins,
he is not, to put it less elegantly, a complainer. He candidly said that he
just pushed through the pain for the most part.

[114]     Mr. Andrusko
also has a particularly brusque manner of speaking. In my view, this negatively
affects how he relates his symptoms. This may have contributed to what Mr. Andrusko
communicated, or did not communicate, to his health care providers.
Accordingly, I do not accept that these clinical records confirm that the soft
tissue injuries relating to his neck and shoulder were resolved quickly over
some four months, as contended by Ms. Alexander. Nor do I consider that
they support the argument that his low back pain and numbness has resolved.

[115]     Finally,
the defence argues that Mr. Andrusko’s work record indicates that he has
recovered. It points to the fact that Mr. Andrusko finally returned to
normal duties at Joy Propane and later obtained very physical jobs at H2Oasis
and DGS.

[116]     Mr. Andrusko
is a poor communicator. I have taken that into account in considering his
evidence. Whether that comes from his limited education is unclear and likely
irrelevant. Derek Nordin, the vocational evaluator who gave evidence at trial,
stated that, in his view, Mr. Andrusko was a poor historian and had
difficulty relating his history to him. Like Mr. Nordin, however, I
consider that he was doing his best in terms of giving an honest account of his
injuries since the accident. Again, Mr. Andrusko is a stoic person. He
continued working with pain because he simply had no choice. That he continued
working does not mean that he was free of pain in doing so.

Expert Testimony

[117]     Dr. Filbey’s
report of March 9, 2011 outlined Mr. Andrusko’s complaints as outlined
above, namely that his neck pain is intermittent and that when he does get a
stiff neck it is a sharp and instantaneous pain when he turns right or left.
His report records that this occurs once or twice every few months. There was
also a report of shoulder pain which was said to happen more frequently than
the neck pain and which results in a dull burning pain. This was located in the
trapezius and back shoulder region. Mr. Andrusko reported that this was
occurring once per week and would occur with long stationary postures. With
respect to the low back, Mr. Andrusko reported that this dull pain is
present all the time and that he also gets sharp pains that he describes as
“unbearable”. These sharp pains are followed by numbness in his left leg.

[118]     As stated
above, Dr. Filbey gave his opinion that Mr. Andrusko has low back
pain and cervicothoracic pain and that he unfortunately is in the small
category of people who have chronic pain.

[119]     The
defence raised the argument that Dr. Filbey’s reports were inconsistent
with respect to the pars defect that was found on the right side. In his first
report, he indicated that the pain was bilateral, meaning that it is on both
sides. In his later report, he indicated that the pain was localized to the
right side as a result of biomechanical alterations arising from the pars
defect. Ms. Alexander argues that Dr. Filbey was backtracking in
terms of his explanation for the pain. I do not agree. I take from Dr. Filbey’s
report that the pain was found in a general area. The fact that it was found
more on the right does not change the overall finding. I note that Dr. Bishop
found discomfort on the left side. It seems clear that locating and noting pain
is not an exact science.

[120]     The
contrary opinion of Dr. Bishop principally centered on his proposition
that he could detect no objective findings of abnormality that would explain
the ongoing symptoms alleged by Mr. Andrusko. Nor did he find any evidence
that the pars defect was playing any role in Mr. Andrusko’s low back pain.
On that basis, he concluded that it would be reasonable for Mr. Andrusko
to suffer an acute phase after the accident of 12 to 16 weeks. Dr. Bishop
acknowledged that during this period of recovery Mr. Andrusko was likely
to experience an increase in the intensity of his pain symptoms, but that was
normal. After that time, he was unable to relate any of Mr. Andrusko’s
ongoing spine-related symptoms directly to the trauma arising from the
accident. At the time of his report in November 2011, Dr. Bishop
considered that Mr. Andrusko’s prognosis for a full recovery to his
pre-accident level was “good”.

[121]     Nevertheless,
on cross-examination, Dr. Bishop agreed that pain is often unable to be
related to any other objective criteria. He agreed that many patients have pain
and doctors cannot determine what is wrong with them. He agreed that pain can
be very disabling. In his practice, if the disability, as self-reported by the
patient, exceeds the impairment and is ruled out on a purely objective basis,
he would normally look for other factors that might be contributing to the
ongoing pain. He indicated that Mr. Andrusko had one of these, but he did
not identify that risk factor. In any event, he indicated that further testing
should be done on Mr. Andrusko to determine whether there is anything else
contributing to the matter.

[122]     Dr. Bishop
confirmed that in a small proportion of people who experience pain, 5% of them
will continue to suffer with chronic pain. In that situation, the medical
profession typically turns to consider pain management techniques.

[123]    
 There is obviously a need in this case to carefully consider Mr. Andrusko’s
subjective evidence as to the extent of his injuries. That and the conflict in
the medical evidence concerning objective evidence of impairment invites a
consideration of the oft-quoted comments of the court regarding subjective
reports of pain. The correct and cautious approach to assessing injuries which
depend on subjective reports of pain was discussed in Price v. Kostryba
(1982), 70 B.C.L.R. 397 at 399 (S.C.) by McEachern C.J. In referring to an
earlier decision, he said:

In Butler v. Blaylock, decided 7th October 1981,
Vancouver No. B781505 (unreported), I referred to counsel’s argument that
a defendant is often at the mercy of a plaintiff in actions for damages for
personal injuries because complaints of pain cannot easily be disproved. I then
said:

I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer. But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence – which could be just his own evidence if the surrounding
circumstances are consistent – that his complaints of pain are true reflections
of a continuing injury.

Summary of the Injuries Caused by the Accident

[124]     As I have
indicated above, I consider Mr. Andrusko to have been a credible witness.
I found that he attempted to give his evidence in terms of his injuries in an
honest and forthright manner. As stated above, Mr. Andrusko is not a very
good communicator and I have taken that into account in considering his
evidence. I also consider that he is a stoic individual who does not want
others to think of him as a “complainer”.

[125]     The extent
of his injuries was confirmed by the evidence of Ms. Stroud, who I also
found to be a credible witness.

[126]     Moreover, Mr. Andrusko’s
evidence is supported by the clinical records of the Fort St. John Medical
Clinic. While I appreciate that the clinical notes do not record every single
complaint made by Mr. Andrusko on a particular day, they generally reflect
his ongoing complaints and the treatment of those complaints over the period of
time of those records. The physiotherapy and chiropractic reports also provide
independent confirmation of Mr. Andrusko’s complaints over this period of
time.

[127]     The
independent evidence of Mr. Stanway and Mr. Higgins further confirms Mr. Andrusko’s
complaints about his low back, shoulder and neck pain in the workplace.

[128]     Finally, I
have considered Dr. Bishop’s concerns about the lack of objective evidence
of Mr. Andrusko’s pain. For the most part, Dr. Bishop’s rejection of
physical examination techniques was based on research examining the reliability
of various procedures to determine tenderness, such as palpation. In light of
this, I have approached that matter with some caution.

[129]     I am
particularly persuaded by Dr. Filbey’s evidence concerning the difficulty
that he himself acknowledged was present when confirming pain in similar
situations. Dr. Filbey said that with respect to musculoskeletal injuries
such as that suffered by Mr. Andrusko, the fact that a diagnosis is
largely based on a patient’s subjective complaints of pain is hardly unusual.
Nevertheless, Dr. Filbey indicated that he takes steps to test the
complaints of pain in an organized fashion that allows him to form some view as
to whether the subjective complaints are justified. In this case, he expressed
no hesitation in confirming his opinion that Mr. Andrusko’s complaints are
real. In addition, Dr. Filbey indicated that he relied not only on Mr. Andrusko’s
complaints of pain but also on his own physical examination and review of all
of the relevant records and medical tests.

[130]     Overall, I
consider Dr. Filbey’s reports to be a more comprehensive consideration of
the circumstances relating to Mr. Andrusko. To a large extent, Dr. Bishop
seems to have relied upon various research results which addressed certain
issues within a large population base. As Dr. Filbey said, research is
fine, but it must be balanced against the actual individual that is before you
with a particular problem. In addition, I consider that Dr. Filbey was
better qualified from a medical perspective to opine on Mr. Andrusko’s
issues in this particular situation. Overall, I found Dr. Filbey’s reports
to be consistent in terms of his findings of pain. Accordingly, where there is
a difference of opinion as between the two doctors, I prefer and accept the
evidence and opinion of Dr. Filbey.

[131]     On the
basis of the lay witness evidence and the expert evidence of Dr. Filbey, I
find the following facts in relation to the determination of Mr. Andrusko’s
injuries:

a)    Mr. Andrusko
suffered injuries to his neck and shoulder, which were largely resolved within
one year. Pain from those areas continues to flare up from time to time, about
once per week, at which time the pain is severe; and

b)    Mr. Andrusko
suffered injuries to his low back such that he has constant pain in that area,
which is at times severe. In conjunction with this low back pain, Mr. Andrusko
suffers from persistent numbness in his left leg on a regular basis.

[132]     I also
find that further improvement of these injuries is unlikely. To use the medical
term, Mr. Andrusko’s condition is now “chronic”.

Quantum of Damages

Non-Pecuniary Damages

[133]     Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of
enjoyment of life, and loss of amenities. The compensation awarded should be
fair to all parties. Fairness is measured against awards made in comparable
cases. However, such cases, though helpful, serve only as a
rough guide. Each case depends on its own unique facts: Trites v.
Penner, 2010 BCSC 882 at paras. 188-189.

[134]    
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined
the factors to be considered when assessing non-pecuniary damages:

[46]      The inexhaustive list of common factors cited in 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).

[135]     The
assessment of non-pecuniary damages is necessarily influenced by the individual
plaintiff’s personal experiences in dealing with his injuries and their
consequences, and the plaintiff’s ability to articulate that experience: Dilello
v. Montgomery, 2005 BCCA 56 at para. 25.

[136]     Mr. Andrusko
cites Pett v. Pett, 2009 BCCA 232 and Miller v. Lawlor, 2012 BCSC
387 in support of an award of $85,000. In Pett, a young man who was a
construction worker was injured and had suffered neck and shoulder injuries
which resolved fairly quickly. His chronic lower back pain persisted and
affected both his work and recreational activities. Non-pecuniary damages in
the amount of $85,000 were awarded. In Miller, a young man suffered
injuries giving rise to chronic pain, which affected his physical work and
recreational activities. The award was $65,000.

[137]     Counsel
for Ms. Alexander agreed that if I rejected her submissions on the extent
of Mr. Andrusko’s injuries, which I have, the range suggested by Mr. Andrusko
for non-pecuniary damages was appropriate.

[138]      I
consider that the circumstances in Pett are the closest to those of Mr. Andrusko.
Both cases involve young men who are involved in very physical jobs. Both are
considered stoic in that they work through the pain. Like Mr. Pett, some
of Mr. Andrusko’s injuries have abated, but they remain intermittent to
this time. They also generally return when Mr. Andrusko’s job activities
exacerbate that pain, something that happens fairly frequently. The low back
pain and leg numbness is persistent and will be a condition that Mr. Andrusko
lives with for the rest of his life.

[139]     While most
of the impact of Mr. Andrusko’s injuries is being experienced in his
working life, it has also impacted his personal life, particularly his
relationship with Ms. Stroud. Also, his ability to work at his DJ business
has been affected in the sense that it is uncomfortable to sit for long periods
of time without pain.

[140]     In
addition, Dr. Filbey indicated in his report that Mr. Andrusko could
continue to do his housekeeping and yard work on his own, although in less than
20 years he would more than likely require assistance for heavy seasonal tasks.
These circumstances are factors that may be considered in the assessment of
non-pecuniary damages: McTavish v. MacGillivray, 2000 BCCA 164 at para. 73.

[141]     In Pett,
the plaintiff’s injuries had a significant impact on his recreational
activities. I do not consider that Mr. Andrusko’s non-work activities have
been as negatively affected.

[142]     Taking all
the circumstances into account, I award the sum of $80,000.

Loss of Future Earning Capacity

[143]     One of the
most controversial issues at the trial concerned Mr. Andrusko’s prognosis
and ability to earn income in the future.

[144]     A claim
for loss of future earning capacity raises two key questions: 1) has the plaintiff’s
earning capacity been impaired by his or her injuries; and 2) if so, what
compensation should be awarded for the resulting financial harm that will
accrue over time? The appropriate means of assessment will vary from case to
case: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Pallos
v. Insurance Corporation of British Columbia (1995), 100 B.C.L.R. (2d) 260
(C.A.); Pett.

[145]     Insofar as
it is possible, the plaintiff should be put in the position he or she would
have been in but for the injuries caused by the defendant’s negligence: Lines v.
W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185. The essential
task of the court is to compare the likely future of the plaintiff’s working
life if the accident had not happened with the plaintiff’s likely future
working life after the accident: Gregory v. Insurance Corporation of British
Columbia, 2011 BCCA 144 at para. 32.

[146]     The
plaintiff must always prove that there is a real and substantial possibility of
a future event leading to an income loss: Perren v. Lalari, 2010 BCCA
140 at para. 32. If that burden is met, then there are two possible
approaches to assessing the loss of future earning capacity: the “earnings
approach” from Pallos; and the “capital asset approach” in Brown.
Both approaches are correct and will be more or less appropriate depending on
whether the loss in question can be quantified in a measureable way: Perren at
para. 32.

[147]     The
earnings approach involves a form of math-oriented methodology such as (i)
postulating a minimum annual income loss for the plaintiff’s remaining years of
work, multiplying the annual projected loss by the number of remaining years
and calculating a present value, or (ii) awarding the plaintiff’s entire annual
income for a year or two: Pallos; Gilbert v. Bottle, 2011 BCSC
1389 at para. 233.

[148]     The
capital asset approach involves considering factors such as whether the
plaintiff: (i) has been rendered less capable overall of earning income from
all types of employment; (ii) is less marketable or attractive as a potential
employee; (iii) has lost the ability to take advantage of all job opportunities
that might otherwise have been open; and (iv) is less valuable to herself as a
person capable of earning income in a competitive labour market: Brown; Gilbert
at para. 233.

[149]    
The principles that apply in assessing loss of future earning capacity
were summarized by Low J.A. in Reilly v. Lynn, 2003 BCCA 49 at para. 101:

[101]    The relevant principles
may be briefly summarized. The standard of proof in relation to future events
is simple probability, not the balance of probabilities, and hypothetical
events are to be given weight according to their relative likelihood: Athey
v. Leonati, [1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled
to compensation for real and substantial possibilities of loss, which are to be
quantified by estimating the chance of the loss occurring: Athey v. Leonati,
supra, at para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d)
133 at 135 (C.A.). The valuation of the loss of earning capacity may involve a
comparison of what the plaintiff would probably have earned but for the
accident with what he will probably earn in his injured condition: Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the
end of the inquiry; the overall fairness and reasonableness of the award must
be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11; Ryder
v. Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task
of the Court is to assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).
Finally, since the course of future events is unknown, allowance must be made
for the contingency that the assumptions upon which the award is based may
prove to be wrong: Milina v. Bartsch, supra, at 79.

[150]    
Dr. Filbey, consistent with the evidence of both Mr. Andrusko
and Ms. Stroud, found that it was more likely than not that he had reached
a point of maximum medical improvement. He concluded that Mr. Andrusko was
more likely than not to remain symptomatic at his current level, assuming that
he continues to exercise and obtains therapy as needed. Dr. Filbey
concluded that the pars defect was associated with biomechanical alterations in
his back area following the symptom development, which predisposed Mr. Andrusko
to be more recalcitrant to treatment and recovery in the low back. Dr. Filbey
stated that there was a “real” possibility that Mr. Andrusko would have
increased lower back symptoms in the future:

It is possible that 10-15 years
down the road he will have some increased low back pain related to the
symptomatic pars defect. Such aggravation would likely increase his symptoms
burden in the lumbar spine. The cervicothoracic and costovertebral symptoms are
likely to remain stable without significant change based upon the current
pattern.

[151]    
Dr. Filbey also addressed Mr. Andrusko’s prognosis given his
chosen line of work in manual labor:

Occupationally, Mr. Andrusko is a manual worker. He has
limited educational background to grade 10 and does not plan on further formal
education. He enjoys manual labour and is able to tolerate such work but it is
evident from his reports that he has symptom aggravation with such tasks. It is
reasonable to assume that he will be able to continue with such employment as
tolerated but his durability over the long-term with such works may be less. It
is my opinion that over by 10-15 years from now, his low back symptoms are
likely to be increased with manual labour and will limit his employment
opportunity and durability.

He would be best suited for work
that sedentary or light. Moderate tasks may be tolerable to him so long as he
can vary his tasks and activities during the day. Heavy regular labour is not
recommended for him based upon his symptom profile. If Mr. Andrusko avoids
symptom aggravation with manual work at this time, his prognosis in the future
may be improved from a symptomatic perspective.

[152]     As stated
above, Mr. Andrusko called Mr. Nordin of The Vocational Consulting
Group. He was qualified as an expert vocational assessor and counsellor. Mr. Nordin
prepared a report dated January 19, 2012 and a supplemental report dated August
20, 2012. Mr. Andrusko was interviewed in Vancouver on November 9, 2011
and given a variety of aptitude and other tests. Mr. Nordin relies on the
results of the testing, certain self-reporting by Mr. Andrusko of his
symptoms, and the reports of Dr. Filbey.

[153]     Of
particular importance to Mr. Nordin was Dr. Filbey’s diagnosis of
neck, shoulder and low back pain and that his low back symptoms would, within
10 to 15 years, likely increase with manual labour, limiting his employment
opportunity and durability. Mr. Nordin was asked to assume that Mr. Andrusko
would work at his job for the next 15 to 20 years and then stop, and to provide
his opinion of what would be the consequences to Mr. Andrusko
vocationally. In addition, Mr. Nordin was asked to comment on options
available to Mr. Andrusko if he followed Dr. Filbey’s advice to
change his occupation to one that requires lighter strength.

[154]    
The results of the testing indicated that Mr. Andrusko scored well
below average in reading, spelling and math. In fact, in most of those
subjects, he was even well below the grade 10 level that he had achieved in
high school. Mr. Nordin concluded that Mr. Andrusko was not a strong
candidate for further schooling. He further concluded that Mr. Andrusko
should stay employed as at present and that his prospects were not good if his
low back pain prevented him from continuing in the future. Essentially, Mr. Andrusko
would be limited to lighter strength work and a corresponding loss of income:

In my opinion, Mr. Andrusko is not likely going to be
able to complete any program of a post-secondary academic nature, including
most high end trades training (i.e. plumbing, electrical, mechanical, etc.).

I believe Mr. Andrusko is an individual who does have
some potential to acquire skills but this will be through on the job
training/experience (much as he has done to date).

…

In my opinion, he is an unsuitable candidate for retraining
based on his current education level, his unsuccessful attempts to complete
further grade levels, his poor grades, his expressed disinterest in returning
to school, his academic achievement as measured by [the testing], as well as
his weak scores on most subscales of the GATB aptitude assessment,
particularly General Learning Ability.

From these work experiences, he has demonstrated potential to
acquire skills through on the job training/experience. Since he is likely not
able to complete any program of a post-secondary academic nature, including
most high end trades training, he is essentially relegated to unskilled or
semi-skilled work.

Occupations suitable for Mr. Andrusko, therefore, would
include other entry level occupations dependent on what he can physically
manage.

If in the future he is unable to engage in work of heavy or
medium strength nature, then he will most likely be left with lighter strength
occupations and potentially lower residual earning capacity.

At the present time, his best
vocational option is to stay where he is currently working.

[155]     In Mr. Nordin’s
supplemental report, he was asked to comment on the suitability of certain
occupations for Mr. Andrusko given his limitations. He considered examples
such as truck drivers and landscape and grounds maintenance workers, all
considered to be medium strength jobs. Assuming that his low back pain
conditions continued into the future, Mr. Nordin was of the view that Mr. Andrusko
was not suited for work as a long-distance truck driver. He could possibly be
considered for local truck driving positions, where he would have the
opportunity of getting out of the truck during the course of a workday. It was Mr. Nordin’s
experience, however, that individuals who have low back pain are generally
ill-suited for any kind of truck driving position, given that truck drivers are
often required to do manual work, such as chaining tires. Mr. Nordin was
also of the view that Mr. Andrusko was not suitable for work as a
landscape and grounds maintenance worker given the significant amount of
bending and lifting involved in those activities.

[156]     Mr. Nordin
was also asked what options Mr. Andrusko would be left with if he was no
longer able to continue working at DGS or if he lost his job. Mr. Nordin
considered that working as a fry cook may be possible, although some bending
and lifting would be involved in that that job.

[157]    
Finally, Mr. Nordin was asked whether Mr. Andrusko would be at
a disadvantage competing for work with others who did not have low back pain or
that type of limitation. Mr. Nordin stated categorically that Mr. Andrusko
likely would be at a disadvantage. Specifically, Mr. Nordin stated that “Mr. Andrusko
has very limited education and his primary asset was his ability to engage in
physical demanding work”. Mr. Nordin also examined the types of employment
that are generally available in the Fort St. John area. With the exception of
retail and hospitality (where he might work as a cashier at substantially lower
pay), the remaining sectors of oil and gas, services, forestry, construction
and agriculture all tend to be physically demanding. Consequently, Mr. Nordin
concluded:

…if he is not able to engage in technical or trade work
and/or heavy labouring work, the remaining opportunities for him are
significantly reduced (particularly in light of his limited education).

…if Mr. Andrusko is not able
to continue in labouring work, his residual vocational options are going to be
quite limited (as will be his residual earning potential).

[158]     Mr. Stanway,
his boss at Joy Propane, is now employed at CalGas in Fort St. John, which is
involved in the bulk delivery of propane. As at Joy Propane, Mr. Stanway
is in charge of hiring and firing employees. He gave evidence that if a worker
applied for a job and it was disclosed that he or she had a back problem, he
probably would not hire that person. His concern would be that bulk truck
drivers sometimes have to do heavy physical work, such as putting chains on
vehicles. In addition, Mr. Stanway was concerned about possible WorksafeBC
claims increasing if claims for further injury were made. Mr. Nordin
expressed the same concerns as Mr. Stanway in his supplemental report
about Mr. Andrusko having to reveal his ongoing symptoms, either to his
current or any future employer.

[159]     Ms. Alexander
advanced a number of challenges to the conclusions reached in Mr. Nordin’s
report. Ms. Alexander contended that Mr. Nordin did not test Mr. Andrusko
for tolerance for sitting, reaching and bending. He is said to have just
accepted the self-reporting by Mr. Andrusko, who said that he experienced
increased pain with prolonged sitting. I accept Mr. Nordin’s evidence that
it is hard to ask someone to quantify tolerance because it is more a
qualitative experience. In any event, I have accepted Mr. Andrusko’s evidence
on his pain tolerance.

[160]     Ms. Alexander’s
principal challenge to Mr. Nordin’s report was the suggestion that Mr. Andrusko
should go back to school to upgrade his skills and education. However, Mr. Nordin
says that this option is not feasible. Mr. Andrusko did not do well at
school and is not interested in further schooling. Mr. Nordin considered
that any such effort would likely be met with failure. I agree with his
assessment. Mr. Andrusko is quite aware that formal education is not his
strong suit. He does not have the intellectual capacity or inclination to
benefit from further schooling.

[161]     The
difficulty with Ms. Alexander’s arguments is that they do not recognize
the reality of Mr. Andrusko’s life and prospects. He is not intellectually
inclined or able to pursue many kinds of jobs. His major asset in terms of
making a living is his physical strength and his ability to perform manual
types of jobs. To that extent, having a healthy neck, shoulders and lower back
quite simply becomes a critical requirement in performing those jobs. Mr. Andrusko
is quite aware of his limitations in that respect and has quite properly
concentrated his efforts on securing manual labour jobs. Perhaps he may have
the opportunity at DGS to move to a foreman position, but paperwork is required
and he has trouble reading and writing. In addition, a foreman has to deal with
customers and, as stated above, Mr. Andrusko is not very well suited to
address that aspect of the job given his personality.

[162]     This not a
situation where, for example, a highly educated surgeon injures his hands and
has the opportunity to be retrained in another line of medical work. Mr. Andrusko
has no other skills upon which to draw. His options are limited. Here, the
accident has damaged his major asset: his ability to perform very physical
work.

[163]    
The classic statement is that a defendant takes her victim as she finds
him. In Pett, the court rejected the trial judge’s comments that a
negative contingency arose from the limited education of the plaintiff:

[16]      I am not sure that I would have considered the
education level of the appellant to be what the trial judge described as a
negative contingency. In my view, this was simply a factual circumstance
concerning this particular plaintiff that engages the principle that a
tortfeasor must take the victim as he or she is. I would prefer to
characterize this as a negative circumstance concerning this appellant because
his modest educational level circumscribes the range of possible avenues of
employment open to him. He, like several others of the family connection,
had made a decision to not pursue higher education because of a history of
available employment in occupational activity with a heavy physical
component. That choice may not have been an unreasonable one when made,
but, in the altered circumstances now facing this appellant, he is perhaps
more affected than would be the case of someone who possesses enhanced
educational credentials. I do not concur with the language of the
judge in para. 77 when he speaks about the “education level for which the
defendant is not responsible”. While, of course, the defendant has nothing
to do with the earlier choice the appellant made about his education, the
defendant is responsible for the impact the accident has had, and will have, on
this young appellant of limited educational attainment. He must take the
appellant as he finds him. In my respectful view, the judge’s
treatment of this issue is problematic for the reasons I have discussed.

[Emphasis added.]

[164]     The other
limitation faced by Mr. Andrusko is that given his temperament, he neither
likes to deal with nor is he good in dealing with the public. He does not have
a personality that is conducive to dealing with the public. Again, this is a
reality that he must face in terms of considering his options going forward. It
is also a circumstance that must be factored into an assessment of how his
employment options have been narrowed.

[165]     In short, Mr. Andrusko
is extremely limited in his career options going forward. He has a very limited
education. His reading and writing skills are minimal at best. He must rely on
his physical strength and prowess to make a living. To the extent that his
physical abilities have been compromised, however, there remains an issue as to
whether he will be able to work at these labour-intensive jobs into the future.
Dr. Filbey is of the opinion that Mr. Andrusko’s lower back symptoms
will likely increase in 10 to 15 years. If that occurs, Mr. Andrusko’s
ability to continue in this type of intensely physical job will be put in
doubt. Further, given his limited education, it is not a realistic option for Mr. Andrusko
to be retrained in another type of occupation that would be less physically
demanding and would provide the same level of income he currently enjoys. His
personality also limits the certain types of jobs he may seek. In the Fort St.
John area, where he lives, most jobs at the higher income scales involve some
physicality.

[166]     Ms. Alexander
says that Dr. Filbey’s conclusions are only speculation and that there is
only a mere possibility, not a substantial possibility, that Mr. Andrusko’s
injuries will limit his employment opportunities. She points to his continuing
employment over the last five years in his physical jobs.

[167]     In support
of her position, she cites Samson v. Aubin, 2012 BCSC 1320 and Fifi v. Robinson, 2012 BCSC 1378,
although the facts in those cases are distinguishable. In Samson, the
plaintiff’s injuries were known and accommodated: paras. 57-64. In this
case, Mr. Andrusko has not disclosed his injuries, and for good reason. Mr. Stanway’s
evidence supports the position that disclosure of his injuries may give rise to
workplace issues which may negatively affect Mr. Andrusko’s employability.
Furthermore, in Samson, the medical evidence from the plaintiff’s own
doctor did not support his argument: para. 61. This is in contrast to support
from Dr. Filbey’s medical opinion and from Mr. Nordin’s report. In Fifi,
the court found that improvement of the injuries was likely and that such
arguments for this type of award were speculative. The plaintiff’s unreliable
evidence was not corroborated by her employer, nor was it supported by medical
evidence: paras. 132-138.

[168]     Mr. Andrusko
suggests that based on the four factors noted by Finch J. (as he then was) in Brown,
he has established a real and substantial possibility of a loss of future
earning capacity. I agree. Mr. Andrusko has
established a real and substantial possibility of a future event leading to an income
loss based on his evidence and the evidence of Mr. Stanway and Mr. Higgins,
and based on the reports of Dr. Filbey and Mr. Nordin, all of which I
accept.

[169]     Mr. Andrusko has been rendered less capable of earning income
from labour jobs, and his injuries will affect his marketability in terms of
continuing at or securing these types of jobs in the future. His injuries will
also affect his ability to take advantage of opportunities in the future. Lastly,
I consider that Mr. Andrusko is less valuable to himself as a person
capable of earning income. He is a young man who has worked from a young age to
support himself and who recognizes the need to continue his employment. He must
rely on his own resources, such as they are now, to make his way in the world. Those
resources include his physical body. This is not the same situation considered
in Pett and Miller where the plaintiffs worked in family
businesses and could expect some accommodation in the workplace. The medical
evidence supports the conclusion that in 10 to 15 years, his symptoms will
likely increase to the point of compromising his ability to continue in this
type of employment. Mr. Andrusko is concerned about his ability to
continue with his only realistic type of employment, particularly where his
other options are otherwise limited. These other options also do not provide
the same level of income as he currently enjoys.

[170]     With
respect to quantifying damages, given Mr. Andrusko’s young age, his
present employment, and the uncertainties arising from his future career path,
I consider that the capital asset approach is appropriate: Perren; Miller
at para. 129.

[171]      Mr. Andrusko
submits that an appropriate award is $300,000, based on the following: he is
currently 26 years old, he has limited education, and he has challenges in
dealing with the public and in performing many types of jobs in the Fort St.
John area. Ms. Alexander did not make any submissions on the assessment of
this award in the event that I found in favour of Mr. Andrusko on the
threshold question.

[172]     It must be
emphasized again that the determination of the damages for loss of earning
capacity is not a mathematical calculation. Rather, it is an assessment or
estimate of the loss after considering the evidence: Morris v. Rose Estate
(1996), 23 B.C.L.R. (3d) 256 (C.A.) at para. 28; Miller at paras. 132-33.
Nevertheless, the courts have consistently used mathematical calculations as
“guideposts” to provide some parameters towards arriving at that estimate: Morris
at paras. 20-24. With a young person at the start of their working life,
the court’s task of peering into the future is undeniably made more difficult: Morris
at para. 21; Pett at para. 21.

[173]     In Morris
v. Rose Estate, [1993] B.C.J. No. 2679 (S.C.) at paras. 57-64,
the trial judge used a mathematical calculation for loss of earning capacity of
a young 23-year-old plaintiff, together with an amount for general impairment,
to arrive at a figure of $140,000. The Court of Appeal considered this
inadequate and increased the total award to $250,000: Morris at para. 27.

[174]     Mr. Andrusko
provided a mathematical calculation for consideration by the court. In 2012, Mr. Andrusko earned $52,000 at DGS plus $9,600 for employment
insurance, for a total of approximately $62,000. Mr. Nordin identified
that a lighter type of occupation available to Mr. Andrusko may be working
as a cashier, whose average earnings are $30,000. If that comparison was used
from age 40, there would be an annual loss of about $30,000 over a period of 25
years (assuming a retirement age of 65). After applying a discount rate, the
total present value is $552,732. This figure does not include any adjustment
for contingencies, both positive and negative. Those unknowns of course include
when he may have to cease doing labour jobs, what employment he is able to get
in the off-season and at what wage, or what his “replacement” job might be if
he quits physical labour jobs and what wage he might earn.

[175]     In Pett
v. Pett, 2008 BCSC 602, the trial judge accepted a loss of earning capacity
based on the medical evidence that the 23-year-old plaintiff suffered from a
disabling back condition that would limit his available employment in the
future. He awarded $120,000: para. 79.

[176]     The Court
of Appeal in Pett increased the award to $225,000. The court considered
the actuarial evidence and a mathematical calculation similar to the one above.
After applying appropriate discounts and general contingencies, it arrived at a
“useful starting point for an analysis” of $300,000. The court rejected the
substantial discount applied by the trial judge in light of the plaintiff’s
positive work ethic and the opportunities for employment through the
plaintiff’s family connections: paras. 23-25. As above, the court also
rejected what seemed to be the application of a negative contingency given the
lack of education achieved by the plaintiff: paras. 16, 24.

[177]     Mr. Andrusko
also has a positive work ethic, but he unfortunately does not have the added
benefit of expecting that his employment will be secured through such family
connections.

[178]     In Miller,
the young 24-year-old pipefitter was being accommodated in the employ of his
father’s business. His injuries prevented him from completing certain jobs,
although he pushed through the pain given his strong work ethic, similar to
what Mr. Andrusko does at his job. The court noted that using the
mathematical or projected earnings approach outlined above may be more
appropriate where the plaintiff has evidence of income before the accident as
compared to a different job after the accident: para. 126. The court
awarded the sum of $210,000, which equated to three years of annual income: paras. 139-140.

[179]     There was
no expert evidence, including actuarial evidence, adduced here, as there was in
Pett, about what contingencies might generally be applied to the
mathematical calculations set out above. Nevertheless, those general
contingencies not specific to the facts of the case resulted in a reduction of
37%. In this case, such a general negative contingency reduces the amount to
$352,000. From that starting point, and keeping in mind the conservative
approach adopted in Pett at para. 24, further contingencies must be
applied. Again, as in Pett, Mr. Andrusko has a good work ethic,
which would suggest a lower negative contingency to be applied, but he does not
have the same security of employment that arose in that case.

[180]     As with
any situation involving a young plaintiff whose career paths are somewhat
uncertain, I must now embark upon gazing into the “crystal ball”.

[181]     I am
persuaded that Mr. Andrusko’s injuries will likely affect his ability to
work and thus will impact his future employment. His employment options have
been narrowed in the labour market, and it is a likely possibility that his
earnings will be affected in the future. There are positive factors, such as Mr. Andrusko’s
work ethic, which I believe supports the view that he will continue to work and
push through the pain to the extent that he is able. Negative factors arise
because of the reality that employers look for healthy employees who can
perform the required functions and who will need not resort to insurance claims
such as through WorksafeBC. Mr. Andrusko is competing in an increasingly
competitive work environment and will be required to compete with healthy men
for these jobs.

[182]     Given all
the foregoing, I award the sum of $250,000 under this head of damages.

Costs of Future Care

[183]     The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore him to his pre-accident condition insofar as
that is possible. When full restoration cannot be achieved, the court must
strive to assure full compensation through the provision of adequate future
care. The award is to be based on what is reasonably necessary on the medical
evidence to preserve and promote the plaintiff’s mental and physical health: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.C.); Williams v. Low, 2000
BCSC 345; Spehar et al. v. Beazley et al., 2002 BCSC 1104.

[184]     The test
for determining the appropriate award under the heading of cost of future care
is an objective one based on medical evidence. For an award of future care: (i) there must be a medical justification for claims for cost of
future care; and (ii) the claims must be reasonable: Milina at 84.

[185]     The award
of damages is thus a matter of prediction of what will happen in the future. If
a plaintiff has not used a particular item or service in the past, it may be
inappropriate to include its cost in a future care award: Izony v. Weidlich,
2006 BCSC 1315 at para. 74.

[186]     The extent
to which a future care costs award should be adjusted for contingencies, if
any, depends on the specific care needs of the plaintiff. In some cases,
negative contingencies are offset by positive contingencies and a contingency
adjustment is not required. In other cases, however, the award is reduced based
on the prospect of improvement in the plaintiff’s condition or increased based
on the prospect that additional care will be required. Each case falls to be
determined on its particular facts: Gilbert at para. 253.

[187]     An
assessment of damages for cost of future care is not a precise accounting
exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21.

[188]     Dr. Filbey
recommended that Mr. Andrusko consider further treatments, being a
six-month course with a kinesiologist to develop a core fitness routine and
program and up to 12 sessions of physiotherapy in a year for acute or chronic
symptom aggravation. He also recommended analgesic and anti-inflammatory
medications as needed, although Dr. Filbey thought this would likely
gradually increase over time. Since Mr. Andrusko is engaged in his own
exercise program now, no award is sought for the expense of a kinesiologist.

[189]     Mr. Andrusko
seeks an award for future physiotherapy sessions, which at 12 sessions have an
annual cost of $660. Taking this amount to age 65 and applying a discount
factor of 3.5% and a present value factor, the total is $13,927. He seeks
$10,000 to account for contingencies. Ms. Alexander says that this amount
is excessive since he has only had three or four sessions per year for 2011 and
2012. I would note, however, that the low number of sessions is largely driven
by his work schedule at DGS, which does not accommodate time off to obtain
treatment. That may change over time if he switches to another job or another
type of job in the future.

[190]     He also
seeks an award of $2,250 for medications, which reflects the nominal amount
presently spent per year ($30) to age 41 and an estimated doubling of that cost
for another 30 years to age 70.

[191]     Again, Dr. Bishop
took a very theoretical approach to the issue as to what benefits Mr. Andrusko
might enjoy by further treatments as recommended by Dr. Filbey. He did not
state this as an opinion. Rather, he referred to “recently published clinical
practice guidelines" that he says recommend against the use of passive
based treatments, such as physiotherapy and massage therapy, and the prolonged
use of any medications. He indicated that he did not know of any studies that
validate the use of chiropractic spinal manipulation therapy. He noted that
such therapies may promote the wrong behavior in the sense that the patient
becomes erroneously dependent upon these therapies when in fact they are
improving regardless of those therapies. Accordingly, he recommends that Mr. Andrusko
avoid all of these forms of treatment.

[192]     Dr. Filbey
addressed his recommendation for further physiotherapy treatments in the
context of Dr. Bishop’s opinion. Dr. Filbey also referred to the
research identified by Dr. Bishop and spoke about the limitations of that
research in the context of an individual assessment. In his extensive practice,
he recommends these types of treatments. If the patient responds, he promotes
those treatments. Dr. Filbey’s explanation was, in my view, reasonable and
informed by much common sense. In addition, Dr. Filbey does not recommend
that there be extensive physiotherapy sessions for the rest of Mr. Andrusko’s
life (which is reasonable given his past need for such therapy). Rather, he is
recommending physiotherapy on an intermittent basis if such is needed for the
purpose of getting Mr. Andrusko back to his activities.

[193]     In my
view, Dr. Filbey’s recommendations regarding continuing physiotherapy
reflects a reasonable approach, both in terms of the benefits that Mr. Andrusko
has received to date and his likely need for continuing treatment given his
condition. However, I consider that 12 sessions per year is excessive,
particularly since Mr. Andrusko only works part of the year, when the
aggravation of his symptoms would occur.

[194]     I also
agree with the recommendations concerning medication. While Mr. Andrusko’s
use of pain medication is now somewhat minimal, that is likely to change and
increase as he ages. The defence took no issue on the estimated amounts.

[195]     With the
exception of the number of physiotherapy sessions, the calculations provided by
Mr. Andrusko, including the appropriate discount and contingency factors
and present value calculations, are reasonable. I would reduce the claimed
amount for physiotherapy to $7,750. Accordingly, the amount of $10,000 is
awarded for future care.

Special Damages

[196]     It is well
established that an injured person is entitled to recover the reasonable
out-of-pocket expenses they incurred as a result of an accident. This is
grounded in the fundamental governing principle that an injured person is to be
restored to the position he or she would have been in had the accident not
occurred: X. v. Y., 2011 BCSC 944 at para. 281; Milina at 78.

[197]     Mr. Andrusko
claims various expenses, as follows: chiropractic bills – $575; physiotherapy
bills – $725; medication – $341.91; and miscellaneous expenses (back belt,
massage therapy and exercise ball) – $79.52.

[198]     I am
satisfied that all of these expenses were incurred as a result of the accident
and were reasonably incurred in aid of Mr. Andrusko’s attempts to address
his injuries. The amount of $1,721.43 is awarded.

Summary

[199]     In
summary, damages are awarded as follows:

(a)      Non-pecuniary damages:  $80,000;

(b)      Diminishment of earning
capacity:  $250,000;

(c)      Cost of future care: 
$10,000;

(d)      Special damages:  $1,721.43.

Costs

[200]    
Mr. Andrusko is entitled to pre-judgment interest on the special
damages awarded. Mr. Andrusko is also entitled to his costs, unless the
parties seek to make further submissions in that respect. If further
submissions are to be made, they must be filed within 30 days of the delivery
of this judgment.

“Fitzpatrick
J.”