IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130705

Docket: 41472

Registry:
Kamloops

Between:

Trissteen
Schoenhalz

Plaintiff

And

Chelsea Reeves,
Brenda Hammond, Steven Hammond
and Jean Schoenhalz

Defendants

And

Luke
Holman, Brenda Hammond, Steven Hammond
and Jean Schoenhalz

Third
Parties

Before:
The Honourable Madam Justice Hyslop

Reasons for Judgment

Introduction

[1]            
The plaintiff, Trissteen Schoenhalz, now Trissteen Long (“Trissteen”),
was injured in a motor vehicle accident on May 12, 2007. The accident happened
in the Tappen, British Columbia area, near the Dry Lake Campground. Dry Lake Campground
is approximately 45 minutes by car from Tappen.

[2]            
Trissteen was a passenger in a vehicle driven by the defendant, Chelsea
Reeves (“Chelsea”). The vehicle, a 1986 Camaro, was registered in the name of
the defendant and third party, Brenda Hammond.

[3]            
Trissteen alleges that the motor vehicle accident was as a result of the
negligence of not only the driver, Chelsea, but in the alternative, as a result
of the negligence of the defendants and third parties, Steven and Brenda
Hammond, and the third party, Luke Holman (“Luke”).

[4]            
The injuries suffered by Trissteen are traverse process fractures of the
T2-T3 vertebrae, facial injuries, injuries to her teeth, a pelvic fracture, and
third degree burns to her right leg, thigh and buttocks. In addition, she
alleges that she has emotional and psychological problems as a result of both
the accident itself and the long-term effects of the injuries suffered in the
accident. It is not disputed that Trissteen was injured in the accident.

[5]            
Luke did not appear at this trial. He was substitutionally served with
the writ and statement of claim. There was evidence before me that he was also
known as Luke Arnouse. The evidence before me was that considerable efforts
were made to locate him.

[6]            
Jean Schoenhalz appeared as a witness for her daughter, Trissteen. No
relief was sought against her.

ISSUES

[7]            
The issues that have been raised by the evidence and the pleadings are:

1)    Was the accident
caused solely by the negligence of Chelsea in the operation of the Camaro?

2)    Was Trissteen
contributorily negligent by getting into a vehicle driven by a 15-year-old
without a driver’s license?

3)    Did Trissteen
contribute negligently to her own injuries by failing to use a seatbelt, and,
if so, to what extent?

4)    Who was the owner
of the 1986 Camaro?

5)    Did Brenda
Hammond give her consent to Chelsea to drive the Camaro on May 12, 2007?

6)    Did Steven
Hammond give his consent to Chelsea to drive the Camaro on May 12, 2007?

7)    What are
Trissteen’s damages?

POSITIONS

The Plaintiff

[8]            
Trissteen’s position is that Chelsea was negligent when she drove the
Camaro on May 12, 2007. Further, Trissteen states that Chelsea has admitted her
negligence.

[9]            
Alternatively, Brenda and Steven Hammond, or each of them, were
negligent when they permitted Chelsea to drive the Camaro knowing that Chelsea
did not have a driver’s license and that she was an inexperienced driver.

[10]        
Trissteen argues that both Brenda and Steven Hammond are vicariously
liable for Chelsea’s negligence because Brenda Hammond consented to Chelsea driving
the Camaro on May 12, 2007.

[11]        
Trissteen seeks non-pecuniary damages in the amount of $200,000.00,
damages for loss of earning capacity between $250,000.00 and $400,000.00, and
agreed special damages of $3,741.02.

The Defendants – Brenda Hammond, Steven Hammond and
Chelsea Reeves – Liability

[12]        
The defendants argue that there is no cause of action when Trissteen
alleges that each, Brenda Hammond and Steven Hammond, negligently caused the
accident by permitting Chelsea to drive the Camaro when each of them knew or
ought to have known that Chelsea did not have a driver’s license.

[13]        
The defendants argue that the defence of volenti non fit injuria
ought to apply. They argue that Luke and Trissteen put together a scheme which placed
the 15-year-old without a driver’s license behind the wheel and intimidated her
into driving. As a result, Trissteen assumed the clear risk of injury and
waived any right of recourse.

[14]        
If volenti is not a successful defence, the defendants argue that
Luke, a third party, is at fault for sending Chelsea and Trissteen out in a
vehicle knowing that neither had a driver’s license or enough driving
experience with this vehicle. They say that he should be found “30% – 40% at
fault for the accident”.

[15]        
Lastly, the defendants argue that Trissteen is contributorily negligent
and:

.. should be found at fault in
the range of 30% – 40% at fault for failing to take care of her own safety by
getting into a vehicle with a 15 year old driver, failing to wear a seatbelt
which would have prevented her from being ejected from the car and eliminated
her burns and creating a danger by distracting the driver which she found 30% –
40% at fault.

Consent to Drive

[16]        
Brenda and Steven Hammond argue that neither of them gave Chelsea
consent, either express or implied, to drive the Camaro on May 12, 2007.

Damages

[17]        
The defendants argue that if they are liable to Trissteen, an
appropriate award for non-pecuniary damages is between $100,000.00 and
$125,000.00 and an appropriate award for loss of earning capacity is $25,000.00.
The defendants argue that these damages should be subject to a 30 percent
discount for Trissteen’s contributory negligence.

Findings of Fact

[18]        
I will refer to facts which are my findings. Should I find evidence in
conflict, I will refer to that conflicting evidence.

[19]        
I will refer to the witnesses, who were teenagers at the time of the
accident, by their first names. In giving their evidence, that is how they
referred to each other.

The Motor Vehicle Involved in the Accident

[20]        
The motor vehicle involved in the accident was a 1986 Chevrolet Camaro.
Its registered owner was Brenda Hammond, who is the mother of Steven Hammond.

[21]        
Mrs. Hammond and her son, Steven, moved to Enderby, B.C. from Manitoba
in October 2006. After they arrived, both of them obtained British Columbia
driver’s licenses.

[22]        
Steven purchased the Camaro a month before the accident for $500.00. He
was the one that made the deal to purchase the Camaro. He paid for it with some
of his money, but mostly his mother’s money. After its purchase, he took steps
to make sure it was roadworthy. He testified that it was registered in his
mother’s name for insurance purposes.

[23]        
Mrs. Hammond’s evidence confirmed that she paid most of the money to
purchase the car. She testified that she was the principal driver and that
Steven was the secondary driver.

[24]        
She testified that she drove the vehicle to and from Enderby, Vernon and
Salmon Arm, and that Steven drove it 90 percent of the time. She testified that
Steven did not ask her for permission to drive the car, although he always told
her when he was taking it and where he was going with the car.

[25]        
She viewed herself a partner in the purchase of the car with Steven. She
stated that when he turned 18, it was her intention to turn the car over to Steven.

[26]        
Steven paid for and did the repairs to the car. He and Luke installed
speakers in the car. The speakers belonged to Luke.

[27]        
Mrs. Hammond was aware that her son’s friend, Luke, had driven the car
on one occasion prior to the accident. On the day of the accident, she did not
know that Luke was driving the vehicle until after the accident. She had no
objections to Luke driving, as she was favourably impressed with him. She was also
of the view that if a person did not know the way to a destination, then
another person who was familiar with the route should drive.

[28]        
On the day of the accident, Steven and Luke had driven to work together.
Steven telephoned his mother after he finished work to tell her that he was
going camping. He told her he did not know whether he would be gone overnight.

[29]        
On the day of the accident and after work, Steven testified that he and
Luke were driving around in Salmon Arm with Luke driving the Camaro. They were stopped
by a policeman, as Luke was driving too fast. Luke provided his driver’s
license to the policeman. Steven testified that prior to this, he knew that
Luke had a driver’s license because he had seen it.

[30]        
Mrs. Hammond had met Chelsea briefly, but did not know her. Mrs. Hammond
did not know Trissteen.

[31]        
Steven testified that he did not give Trissteen or Chelsea permission to
drive the Camaro, nor did he give Luke permission to allow Trissteen and
Chelsea to drive the Camaro. He stated that he would not have given permission.

The Teenagers and Their Relationships with Each Other

[32]        
Steven and Luke were friends. They met each other about six months after
Steven’s arrival to British Columbia. Steven met Chelsea around the same time
through another friend.

[33]        
At the time of the accident, Steven was age 17. He did not attend school
in British Columbia. At the time of the accident, he worked at a saw mill and
was living with his mother in Enderby. Steven did not know Trissteen.

[34]        
Trissteen’s boyfriend, Brian Bell, was a friend of Luke. Trissteen
believed that Luke was older. She inferred this from the company that Luke
kept. Trissteen knew of Steven in that she believed he lived in Enderby where
his mother has an upholstery shop.

[35]        
At the time of the accident, Steven knew that Chelsea was age 15.
Chelsea was residing in the Tappen area with her great aunt, with whom she had
resided for three years. Chelsea and Luke were boyfriend and girlfriend, and
they had been in that relationship since she was age 14 and Luke almost age 19.

[36]        
For at least eight months to one year prior to the accident, Trissteen
and Chelsea had been close friends, if not best friends. They saw each other
every second day. They lived 10 to 15 minutes away from each other. They met
each other at the Storefront School in Salmon Arm. They were both supervised by
a social worker within the government ministry.

[37]        
Chelsea and Trissteen talked and shared their views about boys, clothes,
music and life generally. Chelsea testified that they were both going for their
driver’s license, which they talked about. Chelsea testified that Trissteen
knew that she was 15 years of age. Trissteen testified that she did not know
Chelsea’s age.

[38]        
I find that Trissteen and Chelsea talked about going for their driver’s
licenses and shared confidences with each other. They spent considerable time
with each other. I conclude that at the time of the accident Trissteen knew
that Chelsea was age 15 and did not have a driver’s license.

The Accident

[39]        
On May 12, 2007, Trissteen was living with her mother in Tappen, B.C., along
with Trissteen’s boyfriend, Brian Bell. On that date, she had a fight with Mr.
Bell, during which she told Mr. Bell that she did not want him to be with her
that day. Trissteen telephoned Chelsea and told her of their fight. Chelsea
said that she and Luke would pick up Trissteen. Trissteen does not recall
telephoning Chelsea.

[40]        
At about 3:00 or 3:30 p.m., with Luke behind the wheel, Luke and Steven
picked up Chelsea and Dave Cochrane in the Camaro. Trissteen’s evidence differs
from Chelsea’s evidence in that Trissteen’s evidence is that Dave Cochrane was at
the campsite at Dry Lake when she, Luke, Chelsea and Steven arrived there. Trissteen
testified that Dave Cochrane quickly disappeared, and that she, Luke, Chelsea
and Steven sat around the campsite planning what they would do next. She said
that Chelsea brought a bottle of wine from her aunt’s home and that she thought
there might have been a bit of pot available. The young men then built a
campfire, and Trissteen and Chelsea decided that they would go and get some
smokies. It was sometime late in the afternoon.

[41]        
Trissteen testified that Luke gave her the keys to the Camaro. She said
that Steven appeared uncomfortable with this and that he stated that he did not
think it was a good idea, although he did nothing about it.

[42]        
Trissteen, who had no driver’s license, then went to the vehicle with
Chelsea in the passenger seat and started the engine. However, she quickly
realized that the transmission was standard, which she did not know how to
operate. She changed positions with Chelsea, who took over the driving of the
Camaro. Trissteen was aware that Chelsea knew how to drive a vehicle with a
standard transmission. Further, she testified that she had seen Chelsea drive
Luke’s car on one or two occasions. On one particular occasion, Chelsea had
driven into the driveway of her mother’s home. Chelsea denied having ever
driven on a public road.

[43]        
Chelsea and Steven’s version of how the group travelled to Dry Lake and
how it came about that Chelsea was driving the Camaro contradicts Trissteen’s version.

[44]        
On their account, Trissteen had telephoned Chelsea to tell her about her
fight with Mr. Bell. Chelsea told Trissteen that she and Luke would pick her
up. Chelsea testified that Luke and Steven arrived at her home in the Camaro to
pick up her and Dave Cochrane. Luke was driving. They then travelled to
Trissteen’s home and picked her up. Chelsea was able to describe where each person
sat in the Camaro before and after picking up Trissteen. Steven confirmed that
Dave Cochrane was in the car. Chelsea testified, as did Steven, that shortly
after their arrival at the campsite, Luke directed Dave and Steven to go and
gather firewood, which they did. Chelsea testified that no firewood was
provided at the campsite.

[45]        
Chelsea testified that neither Dave nor Steven were present when the
keys to the Camaro were handed over to Trissteen and then to her. Chelsea and
Trissteen’s evidence was the same as to Trissteen’s attempt to drive the
Camaro. I accept Chelsea and Steven’s version over that of Trissteen.

[46]        
Chelsea stated that Luke ordered her to drive the Camaro and pick up the
smokies and that it was her habit not to disobey Luke. She testified that Luke
had threatened harm to her if she ever broke up with him. She testified that
after she and Luke broke up (after the accident), she had to obtain a
restraining order against him.

[47]        
Chelsea testified that she protested to Luke, saying that she did not
have a driver’s license, and exhibited a reluctance to drive the vehicle. I
find that Chelsea’s statements about being ordered by Luke to drive the car were
exaggerated to justify her driving the Camaro without a license. Trissteen
testified that Chelsea offered to drive after it became apparent that Trissteen
was unable to do so.

[48]        
I conclude that Chelsea, by her own free will, decided to drive the
Camaro.

[49]        
Chelsea thought that it was Steven’s vehicle or Steven’s vehicle to
drive. There was no discussion or concern at the campsite by either Trissteen
or Chelsea as to whether they had consent to drive the Camaro.

[50]        
Both Chelsea and Luke knew that Chelsea could drive a car and that she
could drive a car with a standard transmission. Luke had been teaching Chelsea
how to drive. Chelsea’s great aunt had obtained the permission of a local
farmer who had a gravel pit. Chelsea, under the supervision of Luke, would
drive Luke’s vehicle in the gravel pit. In addition, Chelsea’s great aunt was a
beekeeper, and Chelsea would drive, with Luke at her side, on the farm doing
chores for the beekeeping business.

[51]        
Chelsea and Trissteen’s version as to what occurred after they left the
campground is much the same, but Chelsea was able to provide more details.

[52]        
Trissteen and Chelsea were not wearing seatbelts when they left the
campground or at any time before the accident occurred.

[53]        
Trissteen testified that Chelsea was a good driver and that her driving,
prior to the accident, was appropriate as they drove down the road, although
she testified that she thought Chelsea was driving “a little fast”. However, there
was nothing in Trissteen’s evidence as to why she thought that Chelsea was
driving “a little fast”. Further, Trissteen made no comment to Chelsea about
this or the manner of her driving.

[54]        
Trissteen testified that the accident happened within ten minutes of
their leaving the campsite.

[55]        
Trissteen testified that the accident happened when she and Chelsea were
“fooling around with the CD player”. The two seats in the front of the vehicle
were separated by a console containing the gearshift. In front of the gearshift
was a CD/radio. In the photographs, all that was left of the CD/radio were
wires hanging out where it had been. It was ejected during the accident.

[56]        
Trissteen testified that when they were fooling around with the CD
player, Chelsea’s hand and her hand touched the CD player. The next event that
Trissteen recalls is the vehicle steering into the ditch. She recalls trying to
brace herself with one hand on the dashboard and the other hand pushed up
against the inside roof of the car. She then recalls seeing bush and hearing
Chelsea calling her name. She was aware that the car was on top of her.
Trissteen testified that Chelsea located her and that she told Chelsea to go
for help. Trissteen stated that help arrived within one hour. The vehicle was
taken off her and the paramedics took her to hospital in Salmon Arm.

[57]        
Trissteen was then driven to Kelowna, and from there flown to the
Vancouver General Hospital burn unit.

[58]        
Chelsea gives a more detailed description as to what happened after she
and Trissteen left the campsite in the Camaro. Chelsea took control of the
Camaro. She backed it up and, together with Trissteen in the passenger seat,
left the campground. Chelsea confirms that she was driving the Camaro and that
Trissteen was in the front passenger seat with neither of them wearing seatbelts.

[59]        
Chelsea testified that she had no difficulty driving and that she was
not speeding. She thought the way she was driving was just fine. Nothing else
occurred that gave either teenager any concern.

[60]        
The road they were travelling on was paved. Chelsea was of the opinion that
it was not well maintained. It had a gravel shoulder, and she thought there
were some potholes in the road. Despite this, the condition of the road did not
interfere with her ability to drive. About five miles down the road, the Camaro
lost control and went off the road and into a ditch.

[61]        
Chelsea testified that there was a CD player just beyond the console in
the Camaro. The CD player was connected to subwoofers (speakers) located in the
Camaro. Chelsea testified that Trissteen was turning on the CD player as the
Camaro proceeded down the road. When the radio came on, it was very loud and
scared them both.

[62]        
Chelsea stated that she took one hand off the wheel to deal with the CD
player. Chelsea testified that Trissteen was shouting and that her arm
accidentally bumped Chelsea’s arm.

[63]        
When Chelsea looked up, she saw a curve in the road. It was too late to
do anything. The Camaro was already on, or partly on, the gravel shoulder. The
vehicle left the road and went over the bank, travelling back end over and then
front end over. It rolled several times.

[64]        
Chelsea’s evidence of what happened in the accident was
straightforward and honest. She acknowledges that it was her poor judgment that
caused the accident. Specifically, she acknowledges that her poor judgment allowed
her attention to be diverted by Trissteen and the problem with the CD player.

[65]        
I find that Chelsea lost control of the Camaro and was negligent
when she took her eyes off the road.

Background of the Plaintiff

[66]        
Trissteen was born May 8, 1990. At the time of the accident, she had
just turned 17.

[67]        
Trissteen’s parents separated when she was about age 12 or 13. Her
father is a drug addict and has mental health problems. Trissteen’s mother
works in a nursery, where she has worked for 13 years. Her mother remained
living Tappen at the time of the separation, along with Trissteen’s two younger
sisters.

[68]        
Trissteen attended Carlin Elementary School from grades one to seven.
Trissteen testified that she was very athletic, participating on school teams
in track and field, basketball, volleyball, and soccer. She stated that she was
a B student.

[69]        
After elementary school, Trissteen attended J.L. Jackson Junior
Secondary School in Salmon Arm for part of her grade eight school year, though
she left midway through the school year. She testified that she never quit
school, but rather attended the Storefront School. It was during this year that
her parents separated and her father moved to Salmon Arm, and she lived at her
parents’ homes half-time. During this time, she did crack cocaine with her
father about twice a week. There were no drugs in her mother’s home, although
she reported to Dr. Kaushansky that her mother had difficulties in the past
with alcohol consumption. She also reported to Dr. Kaushansky that her younger
sister became involved with drugs in grade seven, causing her to drop out of
school, though she has since returned to school.

[70]        
Trissteen reported to Dr. Kaushansky that she started doing marihuana
when she was eight and crack between grades six and seven, and that she continued
to use substances until about five months before Dr. Kaushansky’s assessment.
According to Dr. Kaushansky’s report, Trissteen participated in a six-week
rehabilitation program and attended Alcohols Anonymous and Narcotics Anonymous.

[71]        
In 2010, for a period of two months, Trissteen lived in Red Deer,
Alberta, with a man who worked up north. She returned to live with her mother
initially, and then resided off and on between her parents’ homes. In 2010, she
married Darcy Long, with whom she has had two sons, Dominique, born November
26, 2010, and Tyson, born August 25, 2011. In April 2012, the children were
apprehended by the Ministry of Children and Family Development. Trissteen
visited her children once a week, but no longer does due to the disagreement of
the “Director” (which I take to mean the Director for the Ministry of Children
and Family Development).

[72]        
Trissteen has had run-ins with the law and was convicted of assaulting
her husband, her sister, and a policeman. Trissteen and her husband have been
separated from time to time, and Trissteen does not remember when and how many
times.

[73]        
She claims that she and her husband reconciled three weeks before the
start of this trial, although Trissteen still lives with her mother.

Trissteen’s Hospitalization

[74]        
Trissteen was in the Vancouver General Hospital burn unit from May 13,
2007 until July 6, 2007.

[75]        
The extent of her injuries and complaints are described by Dr. Paul
Winston, who, on August 22, 2012, did an independent medical examination (“IME”)
of Trissteen for the Hammond defendants. He sets out:

1.         Injuries and chief
complaints.

·       
Her Glasgow Coma Scale at the emergency assessment time was
13/15.

·       
She had right eye swelling and ecchymosis.

·       
There were facial abrasions.

·       
She had labia majora swelling and blistering.

·       
Her CT scan showed comminuted sacral superior and inferior pubic
rami on the right side with widening of the symphysis pubis which was a
suggestion of a left sacral ala fracture.

·       
A CT head showed no intracranial hemorrhage but a nasal bone
deformity.

·       
A CT of the thoracic spine showed T2 and T3 spinous process
fractures.

·       
A CT of the thorax also showed a left upper pole contusion.

·       
There was a dental incisor repair.

·       
She suffered from nightmares, noted in the psychiatric notes on
May 14 and other dates.

·       
She was treated for pneumonia.

·       
She had an admission to the Intensive Care Unit with sepsis and
treated.

·       
As a result of her surgeries and burns she was noted to have
stenosis of her rectum which required daily digital dilation due to the
stenosis and she reported pain to Dr. Ross Brown on July 17.

·       
Financial duress due to lack of employability.

·       
Self esteem and embarrassment regarding her scars, not allowing
her to wear shorts and decreased intimacy with her husband.

·       
Bowel dysfunction not assessed.

·       
Thoracic back pain with soft tissue component and previous
transverse processes fractures.

·       
Poor sleep due to back pain.

·       
Tingling and numbness in the right calf region.

[76]        
There are no medical reports from Trissteen’s treating physicians other
than that provided by Dr. Anthony Papp, a plastic surgeon, who provided care to
Trissteen from November 24, 2010 to May 7, 2012.

[77]        
The most serious and immediate injuries suffered by Trissteen were the
third degree burns to her right calf and shin, right thigh, and a large portion
of both sides of her buttocks. These burns occurred when she was exposed to the
hot exhaust pipe of the car as she lay pinned under the car.

[78]        
Trissteen also suffered abrasions to her face, mouth, neck, and damage
to her teeth. She was bedridden for her entire stay in hospital except for a
week before her discharge. During her stay in hospital, the pain from her burns
was excruciating and had to be managed by various drugs prescribed by her
treating physicians.

[79]        
Her mother, Jane Schoenhalz, gave evidence as to seeing Trissteen at the
accident scene, Trissteen’s stay in hospital, and her eventual return to
Tappen. I accept that Trissteen was unable to give much evidence regarding her
stay in hospital given the nature of her injuries.

[80]        
Ms. Schoenhalz took a leave of absence from her employment and remained
off work until the fall of 2007. Ms. Schoenhalz took photographs of Trissteen
while she was in hospital, and Trissteen was able to identify the approximate
time when the various photographs were taken. To illustrate the pain Trissteen
suffered, her mother testified that two weeks after the accident, when hospital
staff wanted to shower Trissteen, an anaesthetist sedated Trissteen.

[81]        
Trissteen went through a number of surgeries to her leg, thigh and
buttocks. In order to perform skin grafts to her right leg, thigh and buttocks,
skin was required to be taken from the left thigh.

[82]        
Hospital records and operative reports refer to the treatment that
Trissteen received.

[83]        
According to the hospital records dated May 13, 2012, Trissteen’s
injuries were reported as abrasions to her face, a swollen right eye, chipped
and loose teeth, a sore abdomen, tenderness to the bridge of her nose, an
undisplaced fracture of the T2-T3 verbrae, a fracture of the pelvis superior
ramus, and third degree burns to her right leg, thigh and buttocks, with second
degree burns to the labia majora described as “blistering” and some involvement
to the anus.

[84]        
While in hospital, Trissteen was seen by a dentist on two different
occasions and an ophthalmologist on one occasion. No further treatment occurred
as a result of her swollen eye when in the hospital, and there was no evidence
that there were any ongoing problems to Trissteen’s eye. As to her dental
problems, these seem to have resolved and were treated after her stay in
hospital. There were no complaints from Trissteen about her teeth, nor was
there any further evidence about her teeth other than Dr. Winston’s comments:

6.         She continues to have
difficulty with her teeth. She has had difficulty sustaining a regular dentist.
Her first dentist will not see her because of three missed appointments. She
found another dentist whose treatment she did not like and is now seeing a free
dental clinic through the church. This is beyond my scope of practice and area
of expertise.

[85]        
As to her fracture to the right side of her pelvis, I assume that it
resolved while Trissteen was in hospital. Dr. MacKean, who examined Trissteen
prior to Dr. Winston, makes no mention of this injury. Dr. Winston, in his
physical examination, stated “hip range of motion was not assessed due to her
sensitivity about her pelvic area”. Nothing further was said whether this
related to the injury or some other matter. There is no evidence before me that
this particular injury will cause Trissteen ongoing problems in the future.

[86]        
On May 17, 2007, Dr. Demianczuk operated on Trissteen intending to
perform skin grafts to the leg, thigh and left buttock. As stated above, he
harvested skin from Trissteen’s left thigh to graft to the burned areas. The
thigh and leg were grafted, but the surgeon postponed the grafting to the
buttocks as he detected infection in the wound. Dr. Demianczuk reports:

Due to the extensive nature of
her burn wound and the infection within the buttock burn wound, the patient
will clearly have to be taken back to the Operating Room for further operative
management. As well, there is a concern about an infection within the buttock
wound bed and stricture of her rectum. Because of this the rectal tube was left
sutured in place. The patient is already on antibiotics preoperatively and will
be continued on antibiotics postoperatively.

[87]        
On May 28, 2007, Trissteen was operated on by Dr. Boyle, who debrided
both buttocks, harvested skin from Trissteen’s left thigh and grafted it to the
right buttock.

[88]        
On June 4, 2007, Dr. Peter A. Gooderham diagnosed Trissteen with sepsis and
possible pneumonia, likely secondary to the burn wound infection. He found that
sepsis caused chest pains, and her haemoglobin was down requiring a blood
transfusion. He concluded that the burn wounds needed lots of debridement and
“ultimately grafting.” The functioning of her liver was affected by the sepsis.
He noted that the burn wounds to the perineum had “fecal soiling.”

[89]        
On June 7, 2007, Trissteen was taken to the operating room, where
debridement was performed on her right calf, thigh, and  buttocks. Dr. Boyle
reports:

…At the right medial calf, this
was debrided down to the level of the tibia unfortunately. There was minimal
soft coverage at this site.

[90]        
Trissteen was then returned to the intensive care unit at the hospital.

[91]        
Trissteen’s mother recalls this event as she was called by a person at
the hospital to come to the hospital right away. Ms. Schoenhalz went to the
hospital in the early hours of the morning only to find her daughter, as she
described it, “on life support in the Intensive Care Unit of the hospital.” She
stated that Trissteen remained in a coma for a period of five days. Ms. Schoenhalz
took a picture of Trissteen while she was in intensive care. It shows Trissteen
not awake and lying on her back, with numerous tubes attached to her and
numerous machines monitoring her.

[92]        
On June 21, 2007, Dr. Hill performed a debridement of a skin graft to
Trissteen’s left buttock and right thigh. He also did skin grafting to the
right buttock, a procedure described as “pedicled soleous flap”. The left thigh
provided the skin for the grafting.

[93]        
During her stay in hospital, Ms. Schoenhalz testified that she assisted
in the change of Trissteen’s bandages which were changed every second day by
hospital staff. This procedure took about forty-five minutes. She described the
procedure as stressful to her and painful for Trissteen.

[94]        
While in hospital, Ms. Schoenhalz stated that Trissteen was provided
with a morphine pump which she operated to ease her pain. This pump was
regulated as to the timing of the delivery of the morphine.

[95]        
Trissteen was discharged from the hospital on July 6, 2007, with three
prescriptions for drugs. Two were prescribed for a one-week period each and,
the third, a prescription for Tylenol No. 3, which she took at home. Upon her
discharge from hospital, Trissteen and her mother stayed with her mother’s
niece in Langley. Trissteen attended the burn clinic the following week. Home
nursing was provided daily for Trissteen while she was in Langley.

[96]        
When Trissteen was discharged from hospital she was unable to walk as
she had been bedridden during her stay in hospital. A week before leaving
hospital, hospital staff started to prepare her for walking. She was discharged
in a wheelchair which she used for a short period of time. At the Langley home
where she was staying, she used crutches. Ms. Schoenhalz testified that
Trissteen gained back her ability to walk quite quickly upon her return to
Tappen.

Trissteen’s Return Home

[97]        
Ms. Schoenhalz testified that Trissteen was anxious to leave the
hospital. Upon her return home to Tappen, Ms. Schoenhalz noticed that Trissteen
was edgy and agitated and wanted things done for her “right now”. Ms. Schoenhalz
described her as “mean”. These were not characteristics that she demonstrated
prior to the accident. Trissteen confided to her mother that she was worried
that nobody would love her because of her scars. Ms. Schoenhalz testified that
Trissteen was self-conscious about her scars, and it was a good year before she
would wear shorts. She describes her daughter as withdrawn from friends.

[98]        
Ms. Schoenhalz heats her home with wood. Prior to the accident,
Trissteen would bring in wood to burn. Ms. Schoenhalz testified that after the
accident, Trissteen was unable to do this or any other work for any length of
time.

[99]        
Trissteen complained to her mother of pain in her muscle in her right
calf and also a tingling sensation. She also complained to her mother of back
pain.

[100]     Trissteen
testified that she took pain medication for a period of two months after
returning home to Tappen. She stated that her mother looked after her
medication.

[101]     Trissteen
testified that she lived at her mother’s house and then went to live at her
father’s house because her doctor would not prescribe any further pain
medication for her. She testified that the drugs at her father’s home dealt
with her pain from the accident, but these drugs over time became “recreational”.
Trissteen stated that prior to the accident, she only used marihuana. After the
accident, however, she used cocaine and crack. This contradicts what she told
Dr. Kaushansky. Further, she reported to Dr. Winston that she experimented with
a lot of drugs, but that she did not have a “drug addiction past”.

[102]     Trissteen’s
mother was aware of Trissteen’s use of illegal drugs. She was of the view that
Trissteen was almost clean from drug use before the accident. She based this on
her observation that Trissteen’s behaviour had improved. She also testified
that she intuitively knew this because she knew her child. When confronted with
Dr. Kaushansky’s evidence as to what Trissteen told him, she was surprised.
Trissteen’s mother is of the view that Trissteen would be in better shape mentally
but for the accident.

[103]     Chelsea,
who visited Trissteen while she was in the hospital in Vancouver, stated that
her friendship ended with Trissteen when she received a message on Facebook
from Trissteen threatening to slit Chelsea’s throat.

Trissteen’s Evidence and Credibility

[104]     I must say
from the outset that Trissteen’s memory was faulty as to the time when events
occurred, and she had difficulty explaining sequences of events. Before she
could explain the nature of her injuries and how they affected her, Trissteen
needed prompting from reports from various professionals that assisted her put
to her by her counsel. She could not present a clear picture of what happened
before or after the accident. Her best recollection related to the activities
that she participated in at elementary school, which evidence was stated by
Trissteen with a sense of pride. She became animated when counsel for the
Hammonds put certain propositions to her which she considered untruthful. As
the trial progressed, no evidence was led as to those propositions.

[105]     On the
second day of trial, after the lunch break and when counsel for Chelsea asked
to be excused due to his illness, Trissteen said she was not feeling very good.
I asked whether she wished to stop her testimony, but she said that she did
not.

[106]    
Mr. James, counsel for Chelsea Reeves, in his written submissions, which
were for all defendants, said this about Trissteen:

5.         The Plaintiff is not a
reliable witness. She was present and satisfies the perception element. On the
other hand her memory is poor and she is weak in the recollection element. Her
narration of important events was poor and she is weak in the narration
element. Finally, the defendants submit the Plaintiff is very weak in the
sincerity element. At times she seemed to be fading away and said whatever came
to mind. … The defendants submit that the Plaintiff’s evidence should be
given little weight unless it is not controversial and where controversial only
where it is corroborated by other evidence.

[107]     On the
second day, Trissteen could barely keep her head up. After her testimony and
during the testimony of one of the defendants, she shouted a profanity and left
the courtroom. I agree with much of what Mr. James writes. However, I do not
think that Trissteen has been deliberately deceptive. Rather, her lifestyle and
her use of illicit drugs has left her in the condition in which she presented
herself to the court.

[108]     Trissteen
did not know how many surgeries she had. Nor could she remember anything of her
stay in the intensive care unit. This is understandable given the nature of her
burns. She was able to identify pictures of her and the people in those
pictures who came to visit her, who were her mother’s cousins. She was also
able to identify their relationship with each other.

[109]     Trissteen
testified that when she left Langley and returned home, initially her time was
spent resting, doing some exercises, and learning how to walk again.

[110]     Trissteen testified
at trial that she suffered from back pain and pain in her legs.

[111]     Trissteen
wore shorts in the afternoon of the second day of her testimony so that I could
look at the scars on her leg and thigh. The scars are very visible and large.
The pictures of the burns to her buttocks while in hospital depict a large part
of both sides of her buttocks being burned, with the burns on the right
appearing larger than those on the left.

[112]     Trissteen
is physically a slight, young woman. Trissteen testified that as a result of
her burns she wore baggy pants. She said that her buttocks had been reduced in
size, causing her to choose certain pants to wear so they increased the size of
her buttocks. She stated that before the accident she wore bikinis and swam.
She says that she no longer swims in public. She stated that she is concerned
for her future because of her injuries.

Psychological Evidence

[113]    
Trissteen suffered emotional difficulties as a result of the accident.
These are best described by Garth Mercer in his report dated April 12, 2009. He
provided seven sessions of counselling to Trissteen commencing February 27,
2008 and ending October 17, 2008. In his report under the heading “Initial Client
Complaints,” he stated:

·       
There was considerable emotional trauma associated with having
sustained multiple physical injuries (including serious burns) as a result of
being struck and pinned by the motor vehicle. Adding to the trauma had been her
experience of a painful recovery process, including what I have understood to
be life threatening complications during her hospitalization. In addressing the
emotional trauma that she has been struggling with, we have worked on cognitive
behavioural strategies for anxiety reduction as well as a psychotherapeutic
approach to diminishing the residual trauma symptoms.

·       
Ms. Schoenhalz also indicated that she was struggling with
intrusive, disturbing images associated with what she had experienced at the
time of the accident. Though these intrusive memories diminished over the
post-injury months, they remained a significant factor for her throughout the
time that I was clinically involved.

·       
There were considerable loss/adjustment issues in the foreground
related to the May 12^th, 2007 motor vehicle accident, and resulting
injuries. These included drastic lifestyle changes, disfigurement resulting
in self-esteem and intimacy concerns with significant others, a heightened
sense of vulnerability and considerable trepidation about her future.

[114]     Trissteen
confirmed that, although some of these complaints have diminished over a period
of time, she continues to have the problems underlined above.

[115]    
Mr. Mercer stated that he found Trissteen to be motivated and
enthusiastic during the counselling sessions. He was aware of her historical
drug abuse. Mr. Mercer stated that during the counselling, he and Trissteen
concentrated on the following:

·       
The post-injury trauma has been very debilitating for Ms. Schoenhalz.
During our first session on February 27^th, 2008 she talked about the
accident details including being pinned under the vehicle while her flesh was
being burnt and the prohibitive length of time it took for the rescue crews to
get to the accident scene to free her. She also indicated that post-injury she
developed panic attacks that could be precipitated by circumstances where she
felt confined. For instance, while a patient at the Vancouver General Hospital,
Burn Unit for approximately two months, she recollected feeling “caged up”,
immobile and dependent on others for her care and treatment. She also described
in detail the struggles she had with excruciating pain and the addictive aspect
of the medications that were given to her for pain management. She recalled
being on Oxycotin, Morphine, Tylenol 3’s and Percocet. There was also trauma
around hospital procedures such as being catheterized and waking up from a
coma:

“[with] a huge tube in my throat …then had a feeding tube
down my nose, I think about it all the time. I wake about once a week sweaty,
panicky and can’t get back to sleep. I often sit outside on a rock in the
middle of the night and think about what has happened to me.”

·       
There have been numerous loss/adjustment issues that Ms. Schoenhalz
has had difficulty coming to terms with. She described to me how her legs are
“horribly scarred” but she is most self-conscious about a scar that runs up to
her buttocks. “I have to get jeans with back pockets, when I walk it is obvious
that I have a piece of me missing”. In our April 10^th, 2008
counselling session, Ms. Schoenhalz discussed looking at her figure in the
mirror on a daily basis and feeling “sad, and vulnerable to the world”. She
also feels very insecure around friends:

“I just want to hide in the dark. It is a wall I keep up
like a barrier, I put certain restrictions on things to make myself more secure
by hiding it.”

Physical intimacy with boyfriends has been extremely
compromised with the restrictions that she alluded to involving not wanting to
expose her scars to a boyfriend, or to female friends and family members. Ms. Schoenhalz
discussed a pattern of incessantly crying about the scarring and also being so
discouraged about no further plastic surgery being scheduled until the healing
is complete. She also referred to an unfortunate physical complication that
involves having to watch her diet because any constipation would create severe
pain, again related to the scarring. She wrote some poetry for the April 10^th,
2008 session that clearly indicated her heightened sense of vulnerability
related to the aftermath of the May 12^th, 2007 motor vehicle
accident. In addition to journaling her feelings, I have employed various other
clinical strategies that have assisted Ms. Schoenhalz to an extent in
processing what she has experienced, and to move forward as best she can in her
life.

[116]    
Mr. Mercer recommends further counselling based on:

…the fact that she has suffered
from an array of serious emotional symptoms that have been alleviated to an
extent through the counselling process but still return to the foreground as I
have outlined above.

[117]     Trissteen
testified that as a result of her injuries and over a period of time, she had
to watch her diet, “but not so much anymore.”

Medical Evidence

[118]    
At the request of her counsel, Trissteen saw Dr. Kaushansky. In his
report dated July 8, 2009, Dr. Kaushansky set out the following questions that
he addresses in his assessment of Trissteen:

1)         Did
Ms. Schoenhalz [Trissteen] sustain a traumatic brain injury at the time of the
May 12/2007 accident? Do sequelae persist to the present? Should problems
persist, how are they impacting upon her daily life?

2)         Might
there also have been soft tissue and/or musculoskeletal injuries, the results
of which might be intruding into her cognitive functioning?

3)         What,
if any, are the psychosocial sequelae of the trauma and might such
post-traumatic factors be contributing to a diminished level of cognitive and
emotional functioning?

4)         Were
there any pre-existing conditions which might have increased Ms. Schoenhalz’s
[Trissteen] vulnerability to the effects of this trauma or have been
exacerbated by this trauma?

5)         What treatment recommendations
are warranted in Ms. Schoenhalz’s [Trissteen] case?

[119]    
Dr. Kaushansky provided a lengthy recitation of facts upon which he
based his opinion and the source of those facts. When Dr. Kaushansky saw
Trissteen she was accompanied by her youth worker.

[120]    
Trissteen told Dr. Kaushansky that she was not suffering from pain at the
time she saw him and that she had not taken any medication before coming to see
him. He found the following:

[Trissteen] did not evidence problems with expressive or
receptive language-fluency was normal. No articulation problems were noted and
word finding problems were not evidence. She spoke in a monotone. She did not
require repetition of instructions or stimuli.

…some problems with attention or remaining alert during the
testing – [Trissteen] evidenced a moderate degree of impatience and often gave
up on tasks rather than persevere. … Fatigue did appear to be a mild factor
during the testing – [Trissteen] reported that as per usual her quality of
sleep the night before the testing had been poor.

[Trissteen] described her mood in the days and weeks previous
to our meeting as generally poor given what has befallen her (her physical and
cognitive changes). Her presenting affect during the interview and testing
appeared “blunted” and she displayed little variability in expression.

…she was somewhat vague about dates. During the interview
there was appropriate thought content although she was very focused on her
young life and how this trauma has prevented the option of modeling as a
career.

…Based on the above information
the results of the testing provide, in my view, a reliable measure of
[Trissteen’s] present level of functioning; however, features of a
post-traumatic stress disorder, some depression, as well as the potential
residual effects of substances could have impacted upon her cognition.

[121]     Dr.
Kaushansky’s opinion can be found at pages 11 and 14 of his assessment. I will
summarize them as follows:

1)    Based on the
details of the accident, Trissteen may have suffered a mild traumatic brain
injury. This will need to be verified by an ambulance crew report and the
receipt of hospital records;

2)   
According to the neuropsychological record, Trissteen has an
intellectual ability of “low average” to “average” in most skills. He observes
that some low scores may relate “to her limited educational opportunities.” He
finds:

…no pattern of results suggestive of the persistent
sequelae of a brain injury.

3)  Dr.
Kaushansky concludes that her cognition may be affected as a result of substance
abuse. In addition, the terrifying nature of the accident which has resulted in
a moderate degree of depression and post-traumatic stress disorder, which
influence her cognition;

4)  Her physical scarring, he states is
the most serious feature of the accident. It has diminished her self-worth and
has adversely affected her confidence and her ability to maintain friendships,
particularly intimate relationships. Dr. Kaushansky refers to Trissteen being
self-conscious about wearing certain clothing because of the scars (shorts and
bathing suits), and also about being in public. He concludes that this could
lead to “social withdrawal, shyness, and reclusiveness.”

5)  Dr. Kaushansky states that in
reviewing her pre-accident history consisting of a disorganized and chaotic
home life and a subsequent risky lifestyle, which included longstanding
substance abuse, it is clear that:

…her personality structure (especially her ‘sense of
self’) would have been considered premorbidly as vulnerable and ‘at risk’. Her
physical injuries have exacerbated this already very ‘at risk’ status.

6)  Dr. Kaushansky concludes that Trissteen
can live independently, but that:

…psychosocial and emotional factors with a resultant
substance addiction (which predated the accident) in effect reduce her autonomy.

[122]     Dr.
Kaushansky noted that at the time of his assessment, Trissteen was receiving
government social assistance and support from the community.

[123]     Dr.
Kaushansky advises that Trissteen receive counselling, that she may need
medication (to be determined by her family doctor); that a vocational
assessment be done, and that a further review of her situation be performed,
depending on her remaining drug-free for a period of one year.

[124]     Since Dr.
Kaushansky’s assessment, Alison Henry, an occupational therapist, did a
physical capacity evaluation dated March 14, 2012. Dr. Gordon Wallace, a
registered psychologist, prepared a report dated August 15, 2012 to assess
Trissteen’s pre-injury and residual employability potential. I will refer to the
evidence contained in their reports later in these reasons.

[125]     Trissteen
did not continue counselling with Mr. Mercer. Nor has a further assessment been
done, as recommended by Dr. Kaushansky.

[126]      Dr.
Anthony Papp, a plastic surgeon, who treated Trissteen from November 24, 2010
to May 7, 2012, provided a report dated May 7, 2012. He stated that during
Trissteen’s consultation visit on November 24, 2010, she stated that:

…she has no actual functional
limitations from her injuries but has some tingling sensations on her right
proximal medial calf. She is mostly concerned about the esthetic appearance of
her skin grafts.

[127]     In his
report, he describes the size of the scars and any possible future treatment:

On that examination that day she was well. She has a 10x25cm
skin graft on her right medial calf, 15x30cm skin graft on her right medial
thigh and in her left buttock she has a wide scar with primary closure in the
central aspect of the buttock continuing medially with a 3-4x10cm tethered skin
graft.

We discussed different treatment options in detail. The
buttock scar can be excised and primarily closed by suturing. The thigh skin
graft and the shin skin graft can be serially excised. However, the skin over
the tibia is very thin and closure by suturing may be problematic.

In conclusion, Ms. Long has
scarring from deep burns resulting from a motor vehicle accident. These do not
cause any significant functional impairment or inability to work but do cause a
permanent esthetic problem. All scars are well matured and no spontaneous
changes in the appearance are expected. The appearance of these scars may be
improved with reconstructive surgery. Skin grafted sites are more prone to skin
breakdown than normal uninjured skin. This is specifically true in regards of
shear and friction. The location of the buttock scar makes the area prone to
breakdown problems with extensive and prolonged times of sitting.

[128]    
There was no evidence before me that Trissteen intends to pursue further
surgery as outlined by Dr. Papp, other than her comment to Dr. Winston, who
stated that “she does not feel emotionally ready to proceed with more
surgeries.”

[129]    
Dr. MacKean, a physical medicine and rehabilitation specialist, provided
an IME at the request of Trissteen’s counsel. Dr. MacKean examined Trissteen on
July 12, 2012, and provided a report of the same date. Trissteen told Dr.
MacKean that upon her release from hospital, she had persistent tenderness in
the areas of the scars. She told Dr. MacKean that they are still sensitive,
particularly the right leg scar. He reports:

She states her buttocks feel numb
and it is uncomfortable for her to sit for longer periods of time especially on
hard surfaces.

[130]    
She also told Dr. MacKean the following:

She describes ongoing problems with back pain in the upper
back and into the upper trapezius regions and also a sharp pain going down the
back on both sides, involving the thoracolumbar region which she states is
worse when she is lying down at night.

She states she always has trouble sleeping because of the
back pain. She states she has had no therapy or treatment for her back.

She does not describe a lot of problems with back pain during
the day but she states with lifting her children who are now two years old and
11 months, it will cause an increase in her back pain.

She states her health is otherwise good.

CURRENT MEDICATIONS: Sertaline 100 mg

No reported allergies.

She states she is a smoker.

She states she does not use recreational drugs or alcohol but
she did have a problem previously with substance abuse.

…

She states she was in high school in grade 8 at the time that
the accident occurred. She states she missed a lot of school afterwards but she
did manage to finish grade 8 but did not continue with her education after
that. She states she was not able to work after the accident as she could not
stand for too long without her right leg and back bothering her and she also
could not sit for long periods of time because of pain in her back and also in
her buttocks. She states she did work for a time at Dairy Queen but she found
it was too hard on her right leg and her back.

She has seen a counselor and she
works with a drug and alcohol counselor at home. She did see a psychologist,
Dr. Kaushansky for a neuropsychological assessment on July 8^th,
2009. His opinion was that she may have sustained a traumatic brain injury and
that she also might have lingering effects of substance abuse. He stated she
would need to be reviewed in about 12 months provided that she remain substance
free and continues to receive psychological support. I am not sure if she has
seen him for a follow up assessment.

[131]    
Dr. MacKean described Trissteen as a “very small, slim, young woman.”
Dr. MacKean found Trissteen had full range of motion of the hips, knee and
ankles, and no complaints of joint movement. She states that a neurological
screening assessment of the lower extremities was normal.

[132]    
Trissteen complained to Dr. MacKean of a pulling sensation in the right
hamstrings on a straight leg raise at 60 degrees; there was no tightness on a straight
leg raise of 70 degrees. She reports:

She demonstrated full range of
motion of the thoracolumbar spine and she complained of pulling felt down both
sides of the thoracolumbar spine with flexion. She described increased pain
with extension felt in the midline in the thoracolumbar spine.

[133]    
Dr. MacKean deferred to Dr. Papp relating to any opinion regarding
Trissteen’s burns. She said this under “IMPRESSION”:

2.         She
does have ongoing problems with mechanical spine pain involving the upper to
mid thoracic spine region as well as the thoracolumbar spine region. She has no
spinal deformity or significant limitation in movement but she describes
ongoing tenderness involving these areas.

It is my opinion that the ongoing
problems that she describes with persistent upper and mid and lower back pain
is due to injuries sustained in the motor vehicle accident that occurred on May
[12], 2007. She describes no previous history of spine related pain problems
prior to the motor vehicle accident occurring.

[134]    
Under the heading “RECOMMENDATIONS” Dr. MacKean states:

I would strongly recommend a physical rehabilitation program
to work on exercises for strengthening her back and also her core muscles and
to work on general conditioning. She can do this through a sports physiotherapy
clinic or an exercise rehabilitation clinic but I am not sure what is available
in the Salmon Arm area where she lives.

The important thing with that is that she works on the
exercises on a regular basis in order to build up her strength and endurance.
Swimming would also be a good activity for her but I am not sure how
comfortable she is in a bathing suit as a result of her burn scars.

With regards to her physical work capacity, I do not think
that would be decreased partly because of her small size but also because of
her injuries sustained in the motor vehicle accident. I do not think she would
be able to stand for long periods of time or sit for sustained periods of time
because of these injuries. I also think she would not be able to do medium to
heavy physical work on a sustained basis as a result of injuries sustained in
this motor vehicle accident.

There are other factors that are
influencing her ability to get into the work force including her low level of
education and her prior history of substance abuse.

[135]     At the
request of the Hammond defendants, Dr. Winston assessed Trissteen on August 22,
2012. His findings are in a report dated August 29, 2012. At the time of
Trissteen being examined by Dr. Winston, he noted a report from the emergency
room suggesting a Glasgow Coma Scale of 13/15, which he stated would put her in
a confused state. He further stated that a CT scan showed trauma to the face,
including ecchymosis, the swelling around her eye, and a possible nasal bone
fracture. This, he speculated, led the neuropsychologist to suggest the
probability of a mild traumatic brain injury. He noted that there are no
pre-existing medical conditions that account for her medical problems, other
than her low education, previous addiction history, and her home life
situation.

[136]     However,
Dr. Winston noted that Trissteen has had no rehabilitation for the areas for
which she has pain, and that her symptoms are subjective in nature and not
quantifiable. He states that without rehabilitation, “a full prognosis cannot
be given.”

[137]     Under
“PHYSICAL EXAMINATION”, Dr. Winston found that Trissteen had very rounded
shoulders with a “chin poke forward neck posture.” He stated that there was no
pain exhibited during his examination of her and that her gait was normal, she
was able to walk on her heels and toes, lumbar flexion was adequate, and
bending forward stopped 16 cm from the ground due to thoracic pain. He found
that she had full range of motion in the cervical spine and in her shoulders.
He stated that her hip range of motion was not assessed due to “her sensitivity
about her pelvic area.”

[138]     Dr.
Winston concluded that if she participated in a rehabilitation program, he
would expect significant improvement, although absence of pain was not assured.
As to her future ability to work, he agreed with the physical capacity
evaluation report that she does not meet the requirements for medium and heavy
strength work. He accepts that she cannot sit for extended periods of time due
to her burns and the buttock deformities, and that any work she does will be
“light physical duty position which involved frequent shifting from sit to
stand for her.”

[139]    
Trissteen expressed to Dr. Winston that she would like to do nails or
hair dressing. He opined that he could not see her doing this full time, but
perhaps part-time. Dr. Winston states under the heading, “Future ability to
work”:

She would need extensive
vocational help to complete any courses based on her distractible presentation
to myself today as well as during her neuropsychological assessment.

[140]     Finally,
he made recommendations regarding her physical appearance, such as getting
appropriate padded buttock hosiery. Dr. Winston predicts that should she
address the problems with her shoulders and her scapula, her difficulties
sleeping will likely be alleviated.

Evidence That is Lacking

[141]     Although
the court was not presented with a medical/legal report setting out Trissteen’s
condition at the time she arrived at the hospital, the treatment she received,
the results of the treatment and the prognosis for the future, or the expected
results of surgery using the hospital records, I have been able to describe her
injuries and, by elimination, determine which injuries cause the most concern.

[142]     There is
no evidence of the expected results should Trissteen undergo surgery to improve
the appearance of her scars, or of how long it will take Trissteen to
recuperate from such surgery.

[143]     There is
no medical evidence before me covering the period when Trissteen came home and her
ongoing recuperation. She was seeing a doctor, but that doctor ceased providing
her with medication. Given the seriousness of her injuries, I would expect that
a doctor would be monitoring her physical condition.

[144]     Trissteen’s
mother provides no further evidence about Trissteen after Trissteen left her
home. Nor did Trissteen provide testimony regarding the period after she left
her mother’s home beyond the dates that she lived in Alberta, her marriage, her
move to 100 Mile House, and the birth of her children.

ANALYSIS

[145]     A
defendant can be found liable only if it is established that:

1)    he or she owed a
duty of care to the plaintiff, and

2)    he or she was in
breach of that duty and failed to exercise the standard of care of a reasonable
person placed in the circumstances.

[146]     There was
no dispute that Chelsea owed Trissteen a duty of care. I have already found
that Chelsea knew how to drive a motor vehicle. The evidence of both Chelsea
and Trissteen is that Trissteen was doing well as they drove down the road
towards the accident scene.

[147]     The cause
of the accident was Chelsea’s attention being diverted, which resulted in her
taking her eyes off the road as she drove the Camaro onto the gravel shoulder
and when Chelsea looked up there was a curve in the road and it was too late
for her to correct the path the Camaro was taking, putting the Camaro into the
ditch causing it to roll several times. Taking her eyes off the road to respond
to the CD player is not unlike those drivers whose attention is taken away to
answer a cell phone or to react to actions of animals or children, just as a
few examples.

Volenti Non Fit Injuria

[148]    
The defendants acknowledge that the defence of volenti has had limited
success in modern tort law. The test in applying volenti is stated in Dube
v. Labar, [1986] 1 S.C.R. 649. The headnote from Dube reads:

The defence of volenti
requires not merely plaintiff’s knowledge of a risk but his express or
necessarily implied acceptance of the risk of harm without recourse to law,
along with an inference that defendant took no responsibility for plaintiff’s
safety. Volenti requires an awareness of circumstance and consequences
rarely present at the relevant time in drunken driver-willing passenger cases.

[149]     The
success of this defence is dependent upon accepting the theory that Luke and
Trissteen put together a scheme, over Chelsea’s protests, and intimidated
Chelsea into getting behind the wheel of the car and driving with Trissteen as
a passenger. The facts do not support this. At first, Trissteen was to drive
the Camaro, but she could not operate a vehicle equipped with a standard
transmission. Chelsea then decided and was willing to drive the car as she
could drive a car equipped with a standard transmission. Trissteen did not
accept a risk when she got into the Camaro. No risk had presented itself to
her.

[150]     I have
concluded that the cause of the accident was Chelsea’s negligence when she took
her eyes off the road and drove over a bank.

Contributory Negligence

[151]     The
defendants and third parties argue that Trissteen created the distraction when
she turned on the CD player. I do not consider that Trissteen was doing
something that required Chelsea’s attention. Trissteen’s evidence is that both
her and Chelsea’s hand touched the CD player. Chelsea claims that Trissteen
bumped her arm when they attempted to deal with the CD player, which Trissteen
denies. Nothing turns on this. Whether Trissteen bumped Chelsea’s arm or not, is
not the cause of the accident. Rather, again, the accident was caused by
Chelsea when took her eyes off the road and went onto the gravel.

[152]     The
defendants wish to place some blame for this accident on Luke. They claim that
he was the one directing the other teenagers when they reached the campsite.
Chelsea argues that she did what Luke told her to do, that she did not disobey
him, and that he was abusive towards her. Yet none of this evidence was put to
Trissteen or Steven. Further, there is no evidence to support Chelsea’s
statement that he allegedly abused her or that she needed a restraining order,
which she testified occurred six months after the accident when she and Luke
broke off their relationship.

[153]     Steven
testified that Luke had asked him and Dave to get wood for the fire. There was
no evidence from Steven that Luke had ordered him to do it, that he was pressed
to do it, or that he was reluctant to do it. Dave did not give evidence.

[154]    
Alternatively, the defendants argue that Luke should have been responsible
for the supervision of Chelsea and Trissteen’s wearing of seatbelts. In Galaske
v. O’Donnell, [1994] 1 S.C.R. 670, the court found that the driver of a
vehicle in which children are riding and who are under the age of 16, owes a
duty to the child to ensure his or her wearing a seatbelt. Mr. Justice La
Forest stated:

[28] In my view, quite
apart from any statutory provisions, drivers must accept the responsibility of
taking all reasonable steps to ensure that passengers under 16 years of age are
in fact wearing their seat belts. The general public knowledge of the vital
importance of seat belts as a safety factor requires a driver to ensure that
young people make use of them. I would observe that this same conclusion was
reached by Paris J. in Da Costa v. Da Costa, [1993] B.C.J. No. 1485
(S.C.). He too concluded that there is a duty owed by a driver to ensure that
children are wearing their seat belts.

[155]     At the
relevant time, Chelsea was the driver, not Luke. Following the logic of Galaske,
it was Trissteen’s responsibility to buckle up. Further, Chelsea is not the one
who was injured, but rather it was Trissteen.

Seatbelt

[156]     The
defendants seek to reduce the Chelsea’s liability as a result of Trissteen’s
failure to wear a seatbelt.

[157]     The
defendants bear the onus of proving on a balance of probabilities that at the
time of the accident, Trissteen failed to wear a seatbelt and a seatbelt was
available and in working order, and that the plaintiff’s injuries would have
been prevented or lessened had the person been wearing a seatbelt. It is not
disputed that Trissteen was not wearing a seatbelt.

[158]     Steven
testified that the Camaro was fitted with seatbelts and they were in working
order. Trissteen argued that it is not sufficient just to say that they were in
working order. She says that there must be more evidence other than this
statement. I disagree. The burden shifts to Trissteen to provide evidence to
the contrary. I conclude that the seatbelts in the Camaro were in working order
when the accident happened and that a seatbelt was available for Trissteen’s
use.

[159]     There must
be evidence that wearing a seatbelt would have prevented or lessened
Trissteen’s injuries. Once again, Trissteen’s major injuries were the burns she
suffered, and the emotional effects of the burns.

[160]     Evidence
may be expert medical or engineering evidence, or a combination of both. Even
if the defendants have expert evidence, it must not be of a general nature and
it must be proved that the specific injuries would have lessened as a result of
wearing a seatbelt. Common sense can also be used in determining whether
specific injuries would have been lessened as a result of wearing a seatbelt.

[161]    
In Fillion & LaPlante v. Balko & Balko, 2003 BCSC 419,
Mr. Justice Chamberlist wrote:

[45] Here, the plaintiff has acknowledged that she was
not wearing a seatbelt. There was, however, no expert evidence tendered to
establish that the absence of the seatbelt caused or contributed to the injury.
Although generally the court will rely on expert evidence, it is not entirely
necessary where common sense and the evidence clearly show that the use of a
seatbelt would have, to some extent, precluded the damages suffered.

[46] In Pharand (Next friend of) v. Banks,
[1983] B.C.J. No. 1048, Vancouver Registry No. B811017, McLachlin J. (as she
then was) had occasion to deal with the court’s ability to make its own
conclusions without expert evidence. At para. 19 of that decision, after
referring to the evidence of an expert in reconstruction and his opinion, said
this:

. . . I accept this conclusion as
justified on the physical evidence of the accident. It also seems to me a
matter of common sense to infer that the twisting or rotation which caused the
fracture sustained by Miss Pharand occurred in the course of her being thrown
from the passenger seat into the space between the two seats where she was
found after the accident. Accordingly, I find that in all probability Miss
Pharand would not have sustained the injury which she in fact sustained had she
been wearing a lap-belt. I further find that had she been wearing a lap-belt,
the injuries she sustained would in all probability have been insignificant.

[47] In this case the
evidence is clear from the admissions of the plaintiff regarding her body
movement at impact. I find that had she been wearing a properly adjusted
seatbelt neither her knees nor her body would have contacted the dashboard. I
reject the plaintiff’s argument that this was primarily a side-impact accident
where the seatbelts would have not been of any assistance or little assistance
in retarding the physical motions of the plaintiff.

[162]     In Fillion,
Mr. Justice Chamberlist found the plaintiff contributorily negligent and
responsible for her injuries to the extent of 20 percent for her failure to
wear a seatbelt.

[163]     Both
Chelsea and Trissteen gave evidence that Trissteen was ejected from the Camaro
and onto the ground. There is no dispute that upon the car leaving the road, it
travelled back-end over, then front-end over, and then rolled several times.
The Camaro landed on Trissteen. The burns were caused by the exhaust pipe
burning Trissteen as she lay trapped under the Camaro. In this case, I will use
my own common sense. Based on the evidence, I find that the seatbelts would
have prevented Trissteen from going through the windshield of the Camaro and
landing on the ground, where the Camaro toppled onto her.

[164]     Nevertheless,
I cannot say on a balance of probabilities that all her other injuries were
caused by being ejected from the vehicle. As a result, I find Trissteen
contributorily negligent and responsible for her injuries to the extent of 20
percent because of her failure to use the seatbelt available to her.

Liability of Brenda Hammond

[165]    
Brenda Hammond could be vicariously liable for this accident as a result
of being the owner of the Camaro. That liability arises from s. 86 of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318 [MVA]:

Responsibility of owner or lessee in certain cases

86 (1) In the case of a motor vehicle that is in the
possession of its owner, in an action to recover for loss or damage to persons
or property arising out of the use or operation of the motor vehicle on a
highway, a person driving or operating the motor vehicle who

(a) is living with, and as a member of the family of, the
owner, or

(b) acquired possession of the motor vehicle with the
consent, express or implied, of the owner,

is deemed to be the agent or
servant of, and employed as such by, that owner and to be driving or operating
the motor vehicle in the course of his or her employment with that owner.

[166]    
In Vancouver Motors U-Drive Ltd. v. Terry, [1942] S.C.R. 391, the
majority of the court, per Kerwin J., explained the purpose of s. 86 of the MVA
in the following manner:

deals with the civil
responsibility of an owner for "loss or damage sustained … by reason of
a motor-vehicle on any highway …" where the "person driving or
operating the motor-vehicle … acquired possession of it with the consent,
express or implied, of the owner …".

[167]     In her
submissions, Trissteen argued that Steven Hammond is also an owner of the
Camaro, and thus vicariously liable. The statement of claim alleges that Ms.
Hammond is the registered owner, not that Steven was the owner or that he was
the co-owner of the vehicle.

[168]     In
response to this allegation that Steven was an owner, he stated that the
vehicle was registered in his mother’s name for insurance purposes, and also
because she provided most of the money for its purchase.

[169]     This
vehicle was used by Steven and his mother to meet their needs for transportation.
I prefer the evidence of Ms. Hammond, who stated that she and her son were
partners in the vehicle, and that she intended that the vehicle would be turned
over to Steven when he turned 18. All of this makes sense. Pursuant to s. 7 of
the MVA, the only way that Steven could have had the car registered in
his name was with parental consent, as a motor vehicle cannot be registered in
the name of a person under the age of 18.

[170]    
Trissteen relies on Bua (Guardian Ad Litem of) v. Clegg, 2006
BCSC 259, in which Mr. Justice Bauman stated as follows:

[34] The section refers to
the "owner" of the vehicle, not to the "registered owner".
Indeed "owner" is only inclusively defined in s. 1 of the Act
as including "a person in possession of a motor vehicle under a contract
by which he or she may become an owner on full compliance with the
contract". This definition suggests that one can look to the reality of
ownership of the vehicle in question when one is looking at s. 86 of the Act.

[171]    
In Singh v. Brar (1998), 55 B.C.L.R. (3d) 82, Mr. Justice
Burnyeat stated:

[19] The primary indicia of
actual ownership at common law was who had “dominion and control”. This indicia
is now only one of many which are to be considered although it continues to be
a significant one. Other indicia include who was the registered owner, what was
the purpose of transferring the vehicle into the name of the registered owner,
who applied for registration and insurance, who kept the money from the
wreckage if the car was wrecked, how was the vehicle paid for, who had the
keys, who drove the car, and where could the car ordinarily be found.

[172]     I conclude
that Ms. Hammond was the owner of the Camaro under s. 86 of the MVA. She
had only owned it for a month. She and her son both contributed to its purchase
price. Steven lived in Ms. Hammond’s home. She had control in the sense that
she was the registered owner, and when Steven took it, although he did not ask
for permission each time, he always told her where he was going. The Camaro met
the transportation needs of both Ms. Hammond and Steven.

Did Chelsea have Consent from Ms. Hammond to Drive the 1986 Camaro?

[173]     Consent
may be implied or express.

Express Consent

[174]     Trissteen
relies on Barreiro v. Arana, 2003 BCCA 58 (the “appeal decision”).

[175]    
Express consent is given, within the meaning of the enactment (now s.
86) when possession was acquired as a result of the free exercise of the
owner’s will. Vancouver Motors U-Drive Ltd. and Morrison (Committee
of) v. Cormier Vegetation Control Ltd. (1997), 28 B.C.L.R. (3d) 280 are
both cases in which the vehicles were leased or test driven by customers in
commercial ventures. Restrictions placed on a driver by an employer is not a
defence to liability. In Morrison (Committee of), Mr. Justice Goldie
stated:

[28] The arrangements described
in detail by the trial judge alter the principle of the statute. Carter, by the
“free exercise of the owner’s will” enabled the Employee to acquire possession
of the white Alfa on 23 May 1993 and whether the use to which he put it
thereafter was one of which Carter would approve is immaterial if, in his
driving or operation of the vehicle, he was at fault.

[176]    
In Snow (Committee of) v. Friesen, 2010 BCCA 416, Madam
Justice Newbury stated:

[19] In my respectful view, however, this case is very
different from Vancouver Motors U-Drive, where the appellant’s employees
intended to lend the car to the person standing before them, and that person
in fact drove the car. In the case at bar, accepting the trial judge’s
findings of fact, the owner did not consent to Ms. Friesen’s driving his truck.
He was told that "Neal" wanted to borrow it. That is what Mr. Saul
expressly consented to. It defies common sense to say that he in fact consented
to Ms. Friesen’s driving it. Indeed, the trial judge accepted at para. 37 of
his reasons that Mr. Saul would not have lent his vehicle to Ms. Friesen, as
opposed to Neal Bourgeois.

[20] …The intention of the legislation is to place
liability on a person who permits his car to be used by another, where that
other negligently causes injury to a plaintiff. In this case, the person to
whom Mr. Saul gave his consent was Neal Bourgeois. It was not Mr. Bourgeois who
drove the truck negligently.

[Original emphasis]

[177]     Trissteen
relies on the following passage in McEvoy v. McEachnie, 2008 BCSC 1496
to support the proposition that Chelsea had the consent of Ms. Hammond to drive
the Camaro:

[32] Barreiro makes
it clear that the policy that drove the result in Morrison extends to
situations where the owner gives the keys to its agent and the agent passes the
keys on to a third party. Barreiro stands for the proposition that so
long as the transfer of car keys from owner to second party is done by an
exercise of free will, and the second party gives the keys to a third party by
free will, the owner will be deemed to have consented to the third party’s
possession of the car. That will be the result even though the owner and the
second party had an understanding that the third party was not to ever get
possession of those keys.

[178]     Trissteen
argues that Steven, as agent of Ms. Hammond, gave Luke express consent for Luke
to drive the car pursuant to s. 86 of the MVA. As such, she says that
Ms. Hammond implicitly consented to Luke having possession of the vehicle.

[179]     Steven
testified that Luke had the keys while they were at the campground. Steven did
not give his consent to Luke allowing anyone else to drive the Camaro.

[180]    
Furthermore, and in the alternative, the defendants argue that the
statement in McEvoy is not good law. In McEvoy v.
McEachnie, 2010 BCCA 67, Mr. Justice Tysoe for the Court of Appeal stated:

[2] The appellant first appeals from the judge’s
holding that the respondent, Robyn Carly McEachnie, was driving the Jeep with
his consent, which resulted in the appellant being vicariously liable for any
negligence of Ms. McEachnie pursuant to s. 86 of the Motor Vehicle Act,
R.S.B.C. 1996, c. 318. The second holding under appeal is that the appellant’s
daughter, who is the respondent, Stefany Leigh Forster, was driving or
operating the Jeep at the time, which resulted in the appellant being
vicariously liable for any negligence on her part pursuant to s. 86.

…

[9] Although the appellant is appealing from the
judge’s holding that he consented to Ms. McEachnie’s possession of the Jeep,
this holding was rendered academic by the judge’s subsequent finding that Ms.
McEachnie was not negligent. As this latter finding is not challenged on
appeal, it is my view that the issue is moot and need not be decided on this
appeal. The judge’s reasons on the point were obiter and are not
binding on judges hearing similar cases in the future.

[My emphasis]

[181]     I find
that Ms. Hammond did not give Chelsea express consent to drive the Camaro on
May 12, 2007, and further, that Steven was not an agent of Ms. Hammond.

Implied Consent

[182]     Did Ms.
Hammond give implied consent for Chelsea to drive the Camaro?

[183]    
Counsel for the defendants rely on Palsky v. Humphrey, [1964]
S.C.R. 580 and Godsman v. Peck (1997), 29 B.C.L.R. (3d) 37 (C.A.) for
defining the test for implied consent. In Palsky, the court adopted the
appeal court’s ruling of what is implied consent and what inferences could be
made. The court stated:

Upon this evidence, Porter J.A. concluded:

 It seems clear that the
sole purpose of Harvie’s trip to town that afternoon was to have these tires
repaired for Humphrey …

 It seems clear to me
that the course of conduct between these two men was such that there was an
implied consent by Humphrey to the use by Harvie of his car. This implied
consent, of course, could be terminated or denied in specific instances. The
appellant relies on the two instances as having revoked any consent express or
implied, namely, the mild reprimand for having taken the car on Friday night
without asking for it, and the evidence about Humphrey’s refusal to go with
Harvie to the dance in Lethbridge in Humphrey’s car. The latter incident cannot
be taken as having anything to do with consent or lack of consent to the use by
Harvie of Humphrey’s car because Harvie did not then ask for the car, nor,
indeed, did Humphrey refuse it to him. Harvie was not using the car on Saturday
to go to the dance in Lethbridge, some 80 miles in the opposite direction from
that in which he was travelling at the time of the accident. Was the reprimand
on the Friday night sufficient to terminate a consent which, in my judgment,
had prevailed to that time?

 Contemplate the scene at Humphrey’s place on
Saturday morning — flat tires, no pump, Humphrey’s feet preventing him from
walking any distance, Harvie’s car gone from the farm, Harvie under a duty to
return to work at Darragh’s. Looking at the state of Humphrey’s mind, the only
possible solution to his helpless isolation was to send Harvie to town to get the
tires fixed. It seems to me that consent can be implied because it is clear
that had it been sought it would have been granted as a matter of course. In my
opinion the facts and circumstances surrounding the use by Harvie of Humphrey’s
car on this and other occasions imply consent by Humphrey.

[My emphasis]

[184]     In Godsman,
Mr. Alexander decided to sell his motorcycle. Mr. Godsman expressed an interest
in purchasing the motorcycle. Mr. Alexander gave Mr. Godsman permission to test
drive the motorcycle over a long weekend. During the weekend, Mr. Godsman met
up with a long-time friend, Mr. Peck. Mr. Godsman permitted Mr. Peck to drive
the motorcycle, even though Mr. Peck was not licensed to drive the motorcycle.
Mr. Godsman was a passenger on the motorcycle that Mr. Peck was driving when an
accident occurred and the motorcycle left the highway, injuring Mr. Godsman.
The court found that Mr. Peck caused the accident, assessing 60 percent of the
fault to him and 40 percent to Mr. Godsman for permitting Mr. Peck, an
unlicensed and inexperienced driver, to drive the motorcycle.

[185]     One of the
issues was Mr. Alexander’s liability pursuant to then s. 79(1) (now s. 86 of
the MVA).

[186]     In its
discussion on implied consent, the Court of Appeal stated that when an owner
loans his motor vehicle to another party, the question must be asked, did the
owner expect a third party to drive the motor vehicle? The test for implied
consent is: had consent been sought, would it have been granted as a matter of
course?: Palsky.

[187]     Accordingly,
where an owner of a vehicle loans it to another person, the facts must
establish that, implicit in that arrangement, the owner expected that a third
party would drive the vehicle. Put another way, there must be evidence to show,
or to support the inference, that the owner “turned his mind to the likelihood
of that further transfer of possession”: Godsman at para. 28.

[188]     General
evidence showing either that the owner was willing to allow another person to
drive or that there is a mere possibility that consent would have been granted
is insufficient: Godsman at para. 29. Rather, it must be shown that the
owner both was willing to allow and indeed expected a third person to drive.
This willingness and expectation must be in the owner’s mind at the time when
the vehicle is transferred to the original borrower: Godsman at para.
29. Thus, the court must examine the specific circumstances in which the
vehicle was passed on to that particular third party, and relate those
circumstances back to the owner’s state of mind at the time he gave up
possession: Godsman at para. 30. Overall, the court must determine
whether the specific circumstances in which the vehicle was actually loaned to
the third party were included within the range of circumstances that were in
fact contemplated by the owner, and to which the owner’s expectation and
willingness applied at the time he initially gave possession of the vehicle to
the first taker: Godsman at para. 30.

[189]     In making
a determination, the court will consider: (i) the relationship between the
owner and the driver; (ii) the circumstances in which the owner had given or
refused consent in the past; (iii) any particular circumstances of the driver
or the owner; (iv) any relevant and particular characteristics of the vehicle;
and (v) the use to which the driver proposed to put the vehicle: Morrison
(Committee of) v. Cormier Vegetation Control Ltd. cited in Godsman
at para. 31.

[190]     The Court
of Appeal in Godsman provided a practical example of a case where a
father allows his daughter to take his car for the evening, but tells her to
have someone else drive her home if she drinks alcohol. In those circumstances,
the court said, one would be able to infer a willingness and an expectation
that a third person would drive. But two issues would still remain: firstly,
who would be within the father’s contemplation and secondly, under what
circumstances? As above, the court explained that the analysis would shift to
the specific circumstances under which the third party proposed to use the
vehicle, with a view to determining whether those circumstances would have been
expected by the father. Although this falls to the specific facts of the case,
the court wryly concluded that the father surely would not have expected “his
Porsche to be driven by a 15 year old unlicensed teenager and it could
therefore not be said that he consented to that as a matter of course”: Godsman
at para. 38.

[191]     Applying
this test and, based on the examples given in Godsman, would Mrs.
Hammond have given consent to Chelsea to drive the Camaro?

[192]     On the day
of the accident, Steven left his mother’s home driving the Camaro. Mrs. Hammond
knew her son was going camping with friends and she knew he might stay
overnight. Although she did not specifically know that Luke would drive the car
on the day of the accident, she gave implied consent to Luke to drive. He was a
friend of Steven’s, and she thought he was a good person. As a matter of
course, her son drove the Camaro and she expected Luke would drive it.
Furthermore, he had his license and had driven the vehicle on a previous
occasion.

[193]     Ms.
Hammond also thought that it would be reasonable, where her son did not know
the route to a place that he intended to travel, that the person who knew the
route would drive in the place of Steven. Prior to the accident, Steven had not
been to Dry Lake campsite.

[194]     The issue
remains, however, whether Ms. Hammond would have permitted Chelsea to drive the
Camaro. The question is, did Ms. Hammond expect Luke to loan the vehicle to
Chelsea, an unlicensed driver? The answer is no. Although she placed no
restrictions on her son and consented to Luke driving the vehicle, it cannot be
said that her consent was extended to Chelsea with or without a driver’s
license, a person who Ms. Hammond did not know. Ms. Hammond did not even know her
age. Although Ms. Hammond thought Luke, a friend of her son’s, was a good
person, this  does not lead to the conclusion that she would have consented to
Luke permitting Chelsea to drive the car.

[195]     There is
no evidence to show that Ms. Hammond permitted others, aside from Luke and Steven,
to drive the Camaro. Nor is there evidence establishing a willingness or
expectation that others would drive the Camaro. Trissteen has not proved that
Chelsea had Ms. Hammond’s implied consent to drive the Camaro on May 12, 2008.

[196]     If I am
wrong, and Steven and his mother are in fact owners of the Camaro as
contemplated under s. 86 of the MVA, then I conclude for the same
reasons that I found in Ms. Hammond’s case that Steven did not consent to
Chelsea driving the Camaro.

DAMAGES

[197]     There is
no dispute that Trissteen was injured in the accident. Her most serious
injuries were burns.

[198]     Trissteen
is seeking non-pecuniary damages, loss of future earning capacity, and special
costs. She has abandoned claims for past loss of income.

Non-Pecuniary Damages

[199]    
The Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34 set
out the list of non-exhaustive factors to consider when assessing non-pecuniary
damages, stating as follows:

[46] The inexhaustive list of common factors cited in Boyd
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, 2005 BCCA 54).

[200]     I have also
been asked to consider the following cases for the assessment of both
non-pecuniary damages and loss of future earning capacity:

[201]    
Trissteen relies on the statement made by Dr. Kaushansky to support her
allegation that she suffered a mild traumatic brain injury:

Based on the details of the
accident as provided by Ms. Schoenhalz it [is] probable that she did sustain a
mild traumatic brain injury (mTBI) at the time of the accident.

[202]     Dr.
Kaushansky gives this opinion tentatively. In the same paragraph, he states:

This will need to be verified
upon review of the ambulance crew records as well as the records of the
receiving hospitals. It is typical for patients with such an injury to have a
full recovery of neuropsychological functioning; however this will need to be determined
for Ms. Schoenhalz;

[203]     Further, this
tentative diagnosis by Dr. Kaushansky is not supported by any other medical
evidence.

[204]     As I have
already stated, Dr. Winston made reference to a mild traumatic brain injury,
but he made no diagnosis. Dr. Kaushansky’s opinion is subject to seeing
Trissteen within twelve months (with the proviso that she be free of the use of
drugs for that period). He did not conclude that Trissteen suffered a mild
traumatic brain injury.

[205]     Trissteen’s
injuries consist of emotional difficulties, both past and in the future,
abrasions to her face, broken and loose teeth, a fracture to her pelvis, a
fracture to the T2-T3 vertebrae, and the burns.

[206]     There is
no evidence that the abrasions to her face and the upper part of her body
caused any ongoing problems.

[207]     As to the
pelvic fracture, there was no evidence before me as to whether it healed, or
whether Trissteen suffered any ongoing problems. Nor is there any evidence of
whether the pelvic fracture is a permanent injury. I have already made reference
to Dr. Winston’s comments when he examined Trissteen relating to her hip range
of motion. Whether this relates to the fracture is not stated. Dr. MacKean, who
examined Trissteen five weeks before Dr. Winston’s examination, did not note
any sensitivity in the pelvis area. I conclude that the fracture of the pelvis
resolved itself.

[208]     As a
result of the accident, Trissteen had chipped and loose teeth. At the time Dr.
Evans examined Trissteen in the hospital, he found that her injured teeth had
minimal mobility. He states that Trissteen will need restorative dentistry at a
dental clinic when she is able to get about. There is no dental evidence
concerning Trissteen’s teeth. Other than Dr. Evans’ cryptic notes made while
Trissteen was in hospital, five days after the accident. The only other
reference made about Trissteen’s teeth is in Dr. Winston’s report, where he
states on page nine that she continues to have difficulties with her teeth. This
statement suggests that her difficulties relate to her inability to get to her
dentist appointments, or to get along with her dentist, not the inability to
fix her teeth. Finally, Trissteen gave no evidence concerning her dental
injuries.

[209]     Trissteen
suffered not only physical harm from her burns, but also serious emotional and
psychological ramifications from those burns.

[210]     Firstly,
with respect to her physical injuries, she had to learn to walk again. She
sometimes experiences itchiness in her scar with no relief, and touching the
scar can be painful. Moreover, she told Dr. MacKean that her buttocks feel numb
and that it is difficult for her to sit for long periods of time, particularly
on hard surfaces, and that she has numbness in her right leg. I accept this
evidence.

[211]     There is
no mention of her bowels, which, while in hospital, had to be dealt with
manually due to the burns nearer the anus. She was reluctant to discuss whether
she had any ongoing problems with Dr. Winston. I asked her about this, and she
stated that she had no further problems.

[212]     As for
Trissteen’s emotional and psychological problems, they were described by her to
Mr. Mercer and Dr. Kaushansky.

[213]     Trissteen
further testified that she could not make sense of what had happened to her. She
was anxious all the time and she cried incessantly. She stated that she became
claustrophobic. She had intrusive images, particularly at night, and she
relived the accident and her time in hospital a couple of times a month. She stated
that the intrusive images have diminished, but she is fearful about her future.
She states that she was prescribed a drug for her anxiety, but she remains
depressed and unhappy. She described her mood as “plain”.

[214]     Trissteen
testified that her scars made her feel vulnerable and that they can be used
against her. She stated that her scars have affected the intimacy with her
husband, as she does not like him to see her naked.

[215]     As a
result of the fracture to the T2-T3 vertebrae, Trissteen has back problems. Dr.
Winston finds that Trissteen’s complaints are subjective. Based on Trissteen’s
subjective complaints to Drs. Winston and MacKean, both were of the view that
in order to either eliminate or decrease her complaints relating to her back,
she needs to participate in therapy.

[216]     Trissteen
testified that her upper back pain lasts until she can relax. She stated that
it is hard to do her every day activities, such as looking after her children,
cleaning, and vacuuming. She said that she could do everything that she was
required to do, but that it took longer.

Non-Pecuniary Damages Authorities

[217]     In
considering these authorities, I am aware that they are only helpful
guidelines. In the end, I must consider the unique circumstances of Trissteen’s
injuries and the effect those injuries have upon her life.

[218]     In Bob,
Mr. Bob suffered injuries when his car was hijacked. He became caught up in the
wheel of his vehicle and he was dragged a city block. He nearly died from his injuries.
He was in a coma for two weeks. He suffered abrasions equivalent to third
degree burns over 16 percent of his body. After stabilization, he transferred
and was admitted to a hospital’s burn unit. He underwent skin grafts, but one
to his buttock was unsuccessful. Mr. Bob suffered a “complex chest injury,”
which resulted in ribs four through nine being fractured in multiple places.
These broken ribs punctured his lung, perforated his diaphragm, and tore his
liver. The shape of his chest was altered permanently, causing pain, and leaving
his chest caved in with a drooped shoulder. None of this would improve. The
grafted skin, amongst other sensitivies, was always itchy. The area where the
skin was harvested was scarred, as was the area where the grafting was done. He
suffered from post-traumatic stress disorder and depression. There was a 50
percent chance of needing corrective surgery.

[219]     A jury
awarded Mr. Bob $500,000.00 for non-pecuniary damages. Counsel agreed that the
award should be reduced by law to $281,000.00 to accord with the rough upper limits.
The Court of Appeal reduced it further to $200,000.00, after taking into
consideration cases with similar injuries.

[220]    
In Bob, the appellant referred to Sieppert and other cases
to support an award of $100,000.00. Madam Justice Huddart rejected an award in
this amount, stating:

[19] I do not agree. In
the first three of these cases, the victims suffered serious second and third
degree burns that required much of the same treatment and had many of the same
consequences as those facing Mr. Bob. In the last two cases, the plaintiff
suffered chest injuries that precluded their return to their previous
occupations. Mr. Ralph also suffered a burn to his abdomen. But none of them
suffered the combination of serious burns, complex chest injury, and emotional
disorder that plagued Mr. Bob. When I translate these awards into 2002 dollars
and take account of the functional effect on Mr. Bob of his combination of
injuries, they would support an award in the range of $150,000.00 to
$200,000.00.

[221]     Madam
Justice Huddart then analyzed further comparable cases and reduced Mr. Bob’s
award for non-pecuniary damages to $200,000.00.

[222]     In Cook,
Mr. Cook had multiple injuries: a skull fracture; perforation to the ear drum; cerebral
spinal fluid leakage from his ear; a “burst” fracture of the T-12 vertebra; a
severely displaced middle third fracture of his right clavicle; extensive soft
tissue damage; multiple lacerations and abrasions over most of his body; and
amnesia for a brief period of time relating to the accident. He wore a body
brace for a period of three months. Subsequent to the accident, he had chronic
neck, knee pain and vertigo which progressed to be 90 percent better. He also had
back pain and headaches, hearing loss in one ear, tinnitus in the right ear,
and sleep difficulties. He had memory problems, making it difficult to complete
simple tasks that he was able to do prior to the accident, and his work pace
was slow. He had post-traumatic stress disorder and, at times, problems with
depression. The court awarded Mr. Cook non-pecuniary damages in the amount of
$200,000.00.

[223]    
Trissteen relies on Gilbert. Ms. Gilbert was a back seat
passenger of a motor vehicle driven by Mr. Bottle, who was impaired by alcohol
when he approached a corner too quickly and lost control. Ms. Gilbert was
ejected through the back window of the car and was found unconscious on the
ground. Ms. Gilbert suffered a traumatic brain injury, laceration to the head,
fractured clavicle and soft tissue injuries. Ms. Gilbert was Aboriginal and
lived on a reserve. She was exposed to poverty, substance abuse, and other
adverse situations. Prior to the accident, Ms. Gilbert had drug and alcohol
addictions. In Gilbert, the court found the issues to be determined at
para. 56:

…The issue for determination is
the extent to which her ongoing physical, mental and emotional condition and
associated level of function are caused by the accident, given her pre-existing
condition. Put another way, the issue is whether there is a substantial
connection between the accident and Ms. Gilbert’s compromised physical, mental
and emotional state and associated loss.

[224]     Trissteen,
prior to the accident, was a teenager who had no physical disabilities, but she
had emotional difficulties due to her home life, lack of education, and
substance abuse.

[225]     I find
that Trissteen did not suffer a brain injury. As a result, I do not have to
consider the brain injury in Gilbert when considering non-pecuniary damages.

[226]     I consider
the factors set out in Stapley. At the time of the accident, Trissteen
was age 17. The most severe injuries she suffered were the burns which I have
described. The pain suffered by the burns that I have described is
excruciating. Her disabilities are not only scars. Those scars cause feelings
of itchines and numbness. They have driven her to isolate herself from previous
friendships and they have made intimacy with her husband difficult. The burns
prevent her from sitting for any period of time, and they dictate her clothing
and some of her day-to-day activities.

[227]     The injury
to her back, which is subjective, has caused her pain, has limited her
activities, and has increased her time in doing those activities. The
professionals who examined Trissteen recommended that she take therapy for her
back, as they were of the opinion that her back problems would improve
considerably with rehabilitation therapy.

[228]     Prior to
the accident, Trissteen used illicit drugs. Her mother testified that prior to
the accident, Trissteen’s behaviour was improving. Chelsea testified that
Trissteen had difficulties prior to the accident, but she was worse off after
the accident. After the accident, Trissteen participated in counselling.
Despite this, she continued to use drugs. Trissteen’s demeanour when she
testified displayed a person whose life is spiralling downhill. Since the
accident, I conclude that her drug abuse and her emotional problems have
increased substantially.

[229]     As to the
breakdown of her marriage and the loss of her children, I have no evidence
before me to show why her children were removed other than Trissteen testifying
that she assaulted her husband. Trissteen’s husband gave no evidence, although
he was in court for a period of time.

[230]     Trissteen
came before this court as a 24-year-old young woman who suffered serious burns,
whose marriage is in shambles, and who has temporarily lost her children and
continues to abuse illicit drugs. If not for this accident, she may have
changed her life around. This accident has made it more difficult for her to do
so. I award Trissteen Schoenhalz, now known as Trissteen Long, the sum of
$150,000.00 for non-pecuniary damages.

LOSS OF FUTURE EARNING CAPACITY

The Law

[231]    
There are two approaches for the assessment of future loss of earning
capacity. These were articulated by Madam Justice Garson in Perren v. Lalari,
2010 BCCA 140 as follows:

[12] These cases, Steenblok,
Brown, and Kwei, illustrate the two (both correct) approaches to the
assessment of future loss of earning capacity. One is what was later called by
Finch J.A. in Pallos the ‘real possibility’ approach. Such an approach
may be appropriate where a demonstrated pecuniary loss is quantifiable in a
measurable way; however, even where the loss is assessable in a measurable way
(as it was in Steenblok), it remains a loss of capacity that is being
compensated. The other approach is more appropriate where the loss, though
proven, is not measurable in a pecuniary way. An obvious example of the Brown
approach is a young person whose career path is uncertain. In my view, the
cases that follow do not alter these basic propositions I have mentioned. Nor
do I consider that these cases illustrate an inconsistency in the jurisprudence
on the question of proof of future loss of earning capacity.

[232]    
In Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), Mr.
Justice Finch set out some factors that should be considered in assessing loss
of earning capacity. He stated:

[8] The means by which the value of the lost, or
impaired, asset is to be assessed varies of course from case to case. Some of
the considerations to take into account in making that assessment include
whether:

1.         The
plaintiff has been rendered less capable overall from earning income from all
types of employment;

2.         The
plaintiff is less marketable or attractive as an employee to potential
employers;

3.         The
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and

4.         The plaintiff is less valuable
to himself as a person capable of earning income in a competitive labour
market.

[233]     It is the
obligation of Trissteen to prove that “there is a real and substantial possibly
of a future event leading to an income loss”: Perren.

[234]     It is not
the loss of earnings that is assessed, but rather the loss of earning capacity
or the loss of a capital asset.

[235]     In
considering the loss of earning capacity relating to Trissteen, I must gaze
into the crystal ball. In Trissteen’s situation, that crystal ball gazing is
into the future.

DISCUSSION

[236]     Prior to
the accident, Trissteen had no previous employment. Secondly, Trissteen, at the
time of the accident, was under-educated. She was not pursuing education or
employment. There was no corroborative evidence before the court as to the
grade level that Trissteen attained while attending the Storefront School. No
school records were introduced as evidence.

[237]     I cannot
help but compare her to Steven and Chelsea, who are young adults, having the
respective ages of 23 and 21. They are in a common-law relationship, living in
Alberta. Both have full-time employment. Chelsea, through the Storefront
School, has attained a grade 11 education. It is apparent when she gave her
evidence that she was proud of her employment. Chelsea stated that she was in
foster homes prior to the accident and, at the time of the accident, was living
with a relative. When making this comparison, I do not intend to embarrass
Trissteen, but rather to show what could have been.

[238]     Prior the
accident, Trissteen’s future employment was curtailed by her lack of education,
drug use, and chaotic home life. This was specifically described by Dr.
Kaushansky. Dr. Kaushansky, as a result of testing, estimated Trissteen’s level
of function as low-average to average, which he stated could be a result of her
lack of education and “the lingering effects of substance abuse.”

[239]     Mr.
Wallace, who is a registered psychologist, was asked by Trissteen’s counsel to
assess Trissteen’s “pre-injury and residual employability potential.” Mr.
Wallace set out his opinion in a report dated August 15, 2012.

[240]     Mr.
Wallace answered four questions:

1)    What
occupational options were open to Ms. Long at the time of the May 12, 2007
motor vehicle accident based on her vocational attributes, abilities, and
interests?

2)    With Ms. Long’s
ongoing functional limitations, which pre-injury occupation options would no
longer be within her capabilities? In addition, identify residual occupational
options that Ms. Long could still consider;

3)    In addition to
identifying occupational options that she could now consider, could you provide
an opinion regarding the likelihood of Ms. Long being able to obtain and
maintain competitive employment?

4)   
What treatment recommendations would you make to maximize Ms. Long’s
vocational potential?

[241]     In answer
to question number one, Mr. Wallace concluded that prior to the accident and,
despite Trissteen’s incomplete high school education, there were many direct-entry
employment opportunities available to her. These are listed at page three of
his report. He also set out apprenticeship programs and other occupations, all
which required some further education.

[242]     He concludes
that prior to the accident, as a result of her lifestyle and drug use, Trissteen
required a significant commitment to work and education before she would have
become employable. However, there was no evidence before me that Trissteen was
engaged in the pursuit of education or employment before the accident, except
the three short term jobs she had.

[243]     Mr.
Wallace responds to the second question by reviewing Trissteen’s injuries and
how they impact employment. He relies on some of Ms. Henry’s findings and some
of the medical doctors’ findings as to Trissteen’s limitations. He concludes
that Trissteen is limited in strength, that she in unable to sit for any
periods of time, and that she has difficulties stooping, crawling, kneeling and
bending.

[244]    
As a result, he concludes that there are a number of positions that
Trissteen is no longer able to consider:

It is my opinion that Ms. Long
would no longer be able to consider positions such as a Supermarket Clerk,
Retail Shelf Stocker, Janitor, Chambermaid, Waitress/Server, Fast Food
Preparer, Kitchen Helper, Laundromat Attendant, Campsite Labourer, Animal Care
Worker, Greenhouse Worker, Recreation Facilities Attendant, Babysitter, Mail
Clerk, File Clerk, etc. The physical demands of these occupations would be greater
than Ms. Long’s demonstrated strength and/or tolerance for sitting, standing,
as well as body dexterity.

[245]     He states:

Direct entry occupational options
which would be more compatible with Ms. Long’s residual physical capabilities
include Customer Service Clerk, Self-Serve Storage Facilities Attendant,
Self-Serve Gas Bar Attendant, and General “Office Clerk. Clerical oriented
positions such as a Data Input Operator, Call Centre Agent, and Telephone
Solicitor could pose difficulties for her with her reduced sitting tolerances.
This means that Ms. Long would need to have her work station ergonomically
assessed to ensure that all modifications are made to allow her to alternate
her work posture between standing and sitting.

[246]     He
concludes that Trissteen would be excluded from any apprenticeship training
programs due to the physical demands. He also concludes that due to her reduced
physical capabilities, she is excluded from positions such as personal care aid
and daycare worker. He concludes that alternate service clerical-oriented
positions which require college certificate programs would be within
Trissteen’s physical capabilities, with the need for modifications. He
concludes that as a result of his interview with Trissteen, together with his
assessment results:

…she is presently experiencing
significant psychological distress which interferes with her functioning
capabilities.

[247]    
He further concludes that although Trissteen’s lifestyle prior to the
accident:

…rendered her more vulnerable to
the effect of trauma, it is my opinion that the accident has increased her
dysfunction.

[248]     Mr.
Wallace concludes that Trissteen’s psychological dysfunction will have “a
significant negative impact on her ability to obtain and maintain ongoing
competitive employment.”

[249]     In
response to question number three, Mr. Wallace states that Trissteen’s drug and
alcohol use and the associated legal concerns would also “likely negatively
impact her attractiveness as a future employee.”

[250]     Mr.
Wallace outlines the three basic foundational skills that must be achieved for
anybody who is employed: (i) attend work; (ii) interact with coworkers,
supervisors and customers, and complete duties efficiently and effectively.
Mr.  Wallace states that people with mood dysfunction and psychological
concerns often cannot meet the three basic goals of employment. His opinion is
that in order for Trissteen to increase her chances to obtain competitive
employment, she will have to go through further psychological counselling.

[251]     Mr. Wallace,
in response to his fourth question, sets out the recommendations and treatments
and sets out their costs.

[252]     Trissteen,
both before and even more so after the accident, demonstrates that she cannot
sustain employment. There was nothing presented in the evidence at this trial
that would suggest that Mr. Wallace’s opinion relating to competitive
employment for Trissteen would change.

[253]     I conclude
that both before and after the accident, Trissteen could not sustain employment
due to her psychological difficulties and her drug abuse problems.

[254]     Trissteen,
after the accident, had three periods of part-time employment. Although there
were not any records submitted at this trial, it appears that her periods of
employment were for a few weeks. She testified that as a result of her back and
leg pain, she could not pursue employment. She also stated that she could not
pursue employment as she was trying to get her children back. There were no
employment records or testimony from coworkers relating to Trissteen’s periods
of short-term employment.

[255]     This does
not mean that this young woman will not attempt rehabilitation again. It is
well known that those with addictions often fail to beat their addictions the
first time. There are often relapses, despite rehabilitation, before success is
achieved.

[256]     Ms. Henry
conducted a physical capacity evaluation of Trissteen on March 1 and 2, 2012. She
reported her findings in a report addressed to Trissteen’s counsel dated March
14, 2012.

[257]    
In coming to her opinion, Ms. Henry put Trissteen through a battery of
tests that tested her range of motion, body position, limb coordination, and
strength. Ms. Henry concludes:

Based on assessment findings, Ms.
Long is best suited to work in occupations in the limited strength category
that involve a combination of sitting or standing, with the flexibility to
change between these postures as needed, and where most work is performed at
waist level or above.

[258]     Drs.
MacKean and Winston and Ms. Henry all recommend rehabilitation treatment for
her back. Trissteen has taken no therapy for her back, and there was no
evidence before the court regarding any plans to take such therapy.

[259]     Both Mr.
Wallace and Ms. Henry recommend counselling for Trissteen, and there was no
evidence before the court that she had any plans to take such counselling.

[260]     I conclude
that Trissteen’s substance abuse, chaotic lifestyle, and lack of education will
result in her remaining unemployable. At the same time, should she change these
aspects of her life, she will take up some employment, at which time she will
suffer a loss of earning capacity.

Quantum of Future Earning Capacity

[261]     In Cook,
Mr. Cook was awarded $250,000.00 for loss of future earning capacity. Mr. Cook,
prior to his accident, had significant academic difficulties. He had learning
disabilities. At the time of the accident, he was a young person who did not
complete his grade 12. He had a desire to work as a logging truck driver, an
occupation for which he was suitable. After the accident, it was found that he
was unsuitable for physically demanding work. He worked for his father in the
family business and at the time of trial was working for another family member.
Mr. Cook was found to be competitively employable, although he was precluded
from physically demanding jobs. The court awarded Mr. Cook damages for loss of future
earning capacity in the amount of $250,000.00.

[262]     In Gilbert,
Ms. Gilbert was emotionally vulnerable before her accident. She had similar
problems as Trissteen in that Ms. Gilbert had drug and alcohol abuse problems.
Despite them, and prior to the accident, Ms. Gilbert was able to work regularly
and on a part-time basis assisting her mother and other persons in a self-help
workshop for other members of Native communities. In addition to mental health
issues, Ms. Gilbert also struggled with physical health problems. The court
found that Ms. Gilbert, prior to the accident, had participated in six to seven
workshops a year for which she was paid $1,000.00 for each five-day workshop
and that she would have had more remunerative work. The court found that Ms.
Gilbert was permanently unemployable and awarded damages under this heading in
the amount of $400,000.00.

[263]    
In Morgan v. Galbraith, 2013 BCCA 305, a very recent case from
the Court of Appeal, Madam Justice Garson discussed how courts should assess
the quantum of damages for loss of earning capacity under the capital asset
approach:

[56]      If the assessment is
still to be based on the capital asset approach the judge must consider the
four questions in Brown in the context of the facts of this case and
make findings of fact as to the nature and extent of the plaintiff’s loss of
capacity and how that loss may impact the plaintiff’s ability to earn income.
Adopting the capital asset approach does not mean that the assessment is
entirely at large without the necessity to explain the factual basis of the
award: Morris v. Rose Estate (1996), 23 B.C.L.R. (3d) 256 at para. 24,
75 B.C.A.C. 263; Mulholland (Guardian ad litem of) v. Riley Estate
(1995), 12 B.C.L.R. (3d) 248 at para. 43, 63 B.C.A.C. 145.

[264]     In
considering the factors in Brown, I make these observations. In his
report, Mr. Wallace laid out all occupations and types of employment that,
given Trissteen’s interests and abilities, she was capable of performing,
without education and with some further education. In coming to his opinion,
Mr. Wallace relied on Ms. Henry’s report which commented on Trissteen’s
physical limitations.

[265]    
Mr. Wallace in his report is very clear as to the employment
opportunities that Trissteen was able to pursue before the accident. Mr.
Wallace also laid out the employment she could pursue after the accident. An
obvious negative factor is that both before and after the accident, Trissteen’s
lifestyle prevented her from pursuing employment. Without considering this
impediment to gaining employment, i.e. her lifestyle before the accident – Trissteen
had a number of occupations open to her, some without education and some with
further education and on-the-job training (including an apprenticeship or some
further education so as to obtain a college certificate). Mr. Wallace gave
examples of these occupations. Mr. Wallace was of the opinion that Trissteen, before
the accident and without further education, could have gained employment in
direct-entry occupations. However, her injuries from the accident foreclosed
her from pursuing these jobs. She was also completely foreclosed from all
apprenticeships that she would have been suited for because she could no longer
meet the physical demands. Mr. Wallace lists the direct-entry occupations for
which Trissteen would be suited after the accident:

…Customer Service Clerk,
Self-Serve Storage Facilities Attendant, Self-Serve Gas Bar Attendant, and
General Office Clerk.

[266]    
He observed:

Clerical oriented positions such
as a Data Input Operator, Call Centre Agent and Telephone Solicitor could pose
difficulties for her with her reduced sitting tolerances. This means that Ms.
Long would need to have her work station ergonomically assessed to ensure that
all modifications are made to allow her to alternate her work posture between
standing and sitting.

[267]     The
direct-entry occupations are likely to be at minimum wage, which is $10.25 per
hour. This is roughly a little over $20,000 per year. This does not mean that
such an individual will always earn minimum wage. For example, minimum wage
jobs may limit an individual’s earnings due to layoffs.

[268]     In
addition, in Trissteen’s case, at minimum wage, she may or may not find an
employer who is prepared to make modifications so that she can change
positions, alternating between sitting and standing. Trissteen would be
competing with other workers who do not need such accommodation.

[269]     Trissteen
is a young person who could be employed for 30 to 40 years in the future. She
may enter and leave the job market for family reasons. Finally, she may
rehabilitate herself at some point (or she may not). After all, Trissteen sought
rehabilitation in the past, although she failed in her efforts. Based on the
foregoing, Trissteen has met the onus to prove that there is a loss of earning
capacity.

[270]     In
considering an award for loss of earning capacity, I have considered the report
of economist Robert Carson dated July 31, 2012. This report gives examples of
present day values of $1,000.00 for periods of time relating to Trissteen when
she reaches ages 65 and 70.

[271]     In
assessing Trissteen’s capital asset, I have considered all the contingencies
that I have referred to arising both before and after the accident. At the time
of the trial, Trissteen was not ready to enter the workforce. Given her age, it
is not unrealistic to consider that Trissteen will turn her life around. As a
result, I assess Trissteen’s loss of earning capacity at $200,000.

Summary

1)    Chelsea’s
negligence caused the injuries to Trissteen;

2)    Trissteen was
contributorily negligent for failing to use a seatbelt, to the extent of 20
percent;

3)    Chelsea did not
have the consent of Brenda Hammond or Steven Hammond to drive the Camaro; and

4)    Damages.

COSTS

[272]     Trissteen
is awarded her costs in Appendix B of the Supreme Court Civil Rules on
Scale B.

“H.C.
Hyslop J.”

HYSLOP
J.