IN THE SUPREME COURT OF BRITISH COLUMBIA

Date:
20130930

Docket: M128813

Registry:
New Westminster

Between:

Van Tan Tran also
known as Tan Van Tran

Plaintiff

And

William Arthur
Edbrooke

Defendant

Before:
The Honourable Mr. Justice Williams

Reasons for Judgment

[1]            
The plaintiff, Van Tan Tran, brings this action to recover damages that
he says he sustained as a consequence of a motor vehicle accident which
occurred on December 13, 2008.

[2]            
Sometime after 11:00 p.m. on that date, Mr. Tran was driving his
car southbound on Nanaimo Street in Vancouver. He was accompanied by his wife
who was in the passenger seat. The weather conditions at the time were unusual;
it was snowing hard.

[3]            
As the plaintiff passed through the intersection of Nanaimo and East 29^th
Avenue, his vehicle was struck from the east (that is, his left) by a car
driven by the defendant, Mr. Edbrooke.

[4]            
Mr. Edbrooke had been travelling westbound on East 29^th,
approaching Nanaimo. Although there is a stop sign at that intersection requiring
vehicles on East 29^th to stop before entering Nanaimo, because
of the slippery road conditions, the defendant was unable to bring his vehicle
to a stop. As a result, he slid into the intersection, crossed the lanes
of travel for northbound traffic, and collided with the left front corner of
the Tran vehicle.

[5]            
The force of the collision was apparently significant. The airbags in
the Tran vehicle deployed and damage to that car was not insubstantial.

[6]            
Mr. Tran alleges that he was injured in the collision and that the
injuries have had significant effect upon his life such that he is entitled to
recover damages from the defendant, including damages for pain, suffering and
loss of enjoyment of life, as well as damages relating to past and present loss
of capacity to earn income, the cost of future care and special damages.

[7]            
The defendant takes the position that, in all the circumstances, he is
not liable for any losses the plaintiff may have incurred. However, in the
event this Court concludes that Mr. Edbrooke’s negligence was the cause of
the collision, he says that the damages sought by the plaintiff are excessive
and not warranted.

[8]            
I propose to deal first with the issue of whether the evidence supports
the conclusion that the defendant is liable for the event. If that is proven, I
will then examine the damages claim.

Liability

[9]            
On the evening in question, the defendant had been out with his wife and
friends at a bowling alley. The bowling finished up around 11:00 p.m. When he
got in his car to leave, it was snowing quite heavily. Snow had begun to
accumulate on the roadway and he testified that once he was driving, he applied
his brakes to assess the state of slipperiness of the road surface and the
traction his vehicle was having. He said that he didn’t detect any problems at
that time.

[10]        
Mr. Edbrooke first drove a friend home; she lived in the vicinity
of East 22^nd Avenue and Atlin. After dropping her near her place, he
then continued on his way home. The route he chose was Nanaimo Street, and he
had to go westbound on East 29^th Avenue to get there.

[11]        
In that area, the topography is not entirely flat. There are some rises
and grades. Mr. Edbrooke said as he made his way along, he encountered two
small rises and dips; his testimony was that the vehicle seemed to be gripping
the road surface in an acceptable way and so he continued to drive toward
Nanaimo. At one point, East 29^th Avenue slopes downward to Nanaimo.
As he approached that section, he saw that the road ahead was untracked and
covered in snow. He was concerned as to whether he would be able to stop or
manoeuvre.

[12]        
As his vehicle began to move down the grade toward Nanaimo Street, he quickly
realized that he was not able to properly control the car and that he was
unable to bring it to a stop. In the circumstances, he continued down to the
intersection and then on to Nanaimo Street, passing through the stop sign. My
understanding is that he was flashing his lights and may have sounded his horn
to warn others of the situation. Fortunately, he did not come into contact with
any traffic in the first lanes he crossed, that is, the northbound lanes. He
was less fortunate with respect to southbound traffic. As his vehicle kept
moving across Nanaimo Street, he collided with the plaintiff’s car, and the two
vehicles then came to a stop.

Discussion

[13]        
Mr. Edbrooke disputes liability on the basis that what occurred
here falls within the ambit of a legal principle known as the defence of
inevitable accident. A useful explanation of the concept is found in the
Ontario High Court decision Morton (Next friend of) v. Sykes, [1951]
O.J. No. 250.

The defendant pleads inevitable
accident. Inevitable accident may be described as an accident ‘not avoidable by
any such precautions as a reasonable man, doing such an act then and there,
could be expected to take’, in other words that which the party charged with
the offence could not possibly prevent by the exercise of ordinary care,
caution and skill: see Winfield Text-book of the Law of Tort, 5th Ed. 1950, pp
42-3, quoting Pollock on Torts, p. 107; also The Owners of the Ship
‘Marpesia’ and the owners of the Barque or Vessel America and her Cargo (1872),
L.R. 4 P.C. 212 at 220. To put it in other words it means an accident which
could not have been avoided by a reasonable man at the moment at which it
occurred, and it is common knowledge that a reasonable man is not credited by
the law with perfection of judgment. People must guard against reasonable
probabilities, but they are not bound to guard against fantastic possibilities.
To sum up the above, an accident is inevitable if it is not avoidable by any
such precautions as a reasonable man could be expected to take.

[14]        
The defendant says that he has provided an explanation for the collision
which is as consistent with no negligence as it is with negligence.
Specifically, he says that he was driving cautiously and exercising the
standard of care of a reasonable driver in the circumstances and nothing more
can be required of him.

[15]        
Mr. Edbrooke relies upon two decisions of this Court. The first is McIntosh v. Insurance
Corp. of British Columbia, 2003 BCSC 775, a decision of Mr. Justice Halfyard.
The defendant there was driving on a highway and encountered a wolf on the
road; as she took measures to avoid hitting the animal, she became aware that
there was black ice on the road. She subsequently lost control of her
automobile. The Court found that prior to this the defendant had not seen or
felt any slippery sections on the road and had not seen an animal of any
kind on or near the road for a distance of approximately 170 kilometres. In
those circumstances, Halfyard J. concluded that the defendant “was exercising a
degree of care that was commensurate with the risk that would have been apparent
to an objectively reasonable driver.” He found that the facts of the case
established an explanation for the accident which was as consistent with
negligence as it was with no negligence. Accordingly, the defence of inevitable
accident succeeded.

[16]        
The other authority cited by the defendant is Nason v. Nunes,
2007 BCSC 266. In that case, the defendant driver was driving his
truck along a road, approaching a bridge. He was aware that there was a risk of
icy conditions. As he approached the bridge, he had markedly slowed his
speed; he had encountered no traction problems to that point. As the truck came
onto the bridge, the rear tires hit a bump between the pavement and the bridge
deck. The truck began to fishtail and the defendant took measures to bring the
vehicle under control. Those were unsuccessful and the truck went off the road.

[17]        
In finding the defence of inevitable accident made out, the trial judge
noted that the defendant was aware of the risk that the road might be slippery
and found that he had taken reasonable steps to avoid that risk. There was no
evidence that greater precautions such as snow tires or driving more slowly
would have prevented the motor vehicle accident.

[18]        
The plaintiff relies upon three authorities: Basra v. Gill, [1994]
B.C.J. No. 2196; Durant v. Lennard, 2001 BCCA 449, and Cranfield
v. McKay, 2004 BCSC 291.

[19]        
In Basra, Cumming J.A. articulated the elements of the defence of
inevitable accident as two:

(a) that the defendant had no prior warning or indication of
the hazard; and that

(b) once the hazard had become
apparent, there were no reasonable steps the defendant could have taken to
avoid the accident.

[20]        
The plaintiff cites Durant v. Lennard for the proposition that
the test to be applied is not a subjective one. Rather the proper standard is
objective: whether a reasonable person would expect icy conditions would have
been present.

[21]        
In Cranfield v. McKay, the defendant driver, after encountering
ice, lost control of her vehicle. In finding for the plaintiff, Sigurdson J.
said this:

[42]      I think that given the
particular circumstances, the time of year, the early hour in the morning and
the apparent freezing or near-freezing conditions revealed by frost and by salt
and sand on a main road and parking lot, that a reasonably prudent driver would
have foreseen a significant possibility of ice on the road and driven more
slowly. In the circumstances, she ought to have been aware of a heightened
risk.

[22]        
In my view, the essential principles are best understood from the excerpt
taken from Basra v. Gill, as set out above, from the excerpt from Morton,
and by the judgment of Davey C.J.B.C. in Hackman v. Vecchio, [1969]
B.C.J. No. 415. The issue there was the correctness of a jury
instruction in a trial where a driver had skidded on an icy road and come
into collision with a truck. It was held that the proper direction to the
jury would have been:

…that the collision of
respondent’s car with the truck on the wrong side of the road as a result of
the skid was evidence that the respondent was careless, unless he could explain
the skid reasonably by showing how it may have happened without negligence on
his part; that in order to do that respondent would be obliged to show that he
did not expect ice at that point, and that he had no reason to expect it, for
if he ought to have foreseen it, he was bound to drive slowly enough to avoid
skidding upon it.

[23]        
From these authorities, as I understand them, the essential principles
then distill to this:

a)    In a situation
which is prima facie attributable to the defendant’s negligence, for the
defendant to be able to successfully invoke the defence of inevitable accident,
the onus is upon the defendant to show, on a balance of probabilities, that he
was not negligent because he had no prior warning of the hazard encountered;
and

b)    To show that once
the hazard became apparent, there were no reasonable steps the defendant could
have taken to avoid the collision.

[24]        
In conducting the necessary analysis, there are four points or
principles to be borne in mind as important and relevant:

a)    Not all
accidents will necessarily be attributable to negligence: Phillips v. Lyle,
[1990] B.C.J. No. 212;

b)    The law does not
require a standard of perfection from drivers who must react to a situation
that presents itself: Couturier v. Rud, (B.C.C.A.) [1990] B.C.J. No. 150.

c)     Where a
defendant takes all reasonable precautions in the circumstances, he will not be
held liable in negligence: McIntosh v. I.C.B.C., supra.

d)    The proper
standard by which to examine the matter is an objective test. That is, whether
a reasonable person would expect the hazard to be present.

[25]        
Dealing specifically with the cases cited, it seems to me that McIntosh
makes perfect sense: the defendant had no prior warning of the hazard and was
taking reasonable care in the circumstances as known to her. In Nason
the trial judge found the defendant was aware of slippery conditions and was
taking all precautions to deal with the hazards as he understood them. The
effect of the bump and the ice at the approach to the bridge was not a hazard
that was reasonably foreseeable.

[26]        
On the other hand, in both Cranfield and Hackman, the
courts found the defendants were aware of slippery conditions and that a
reasonably prudent driver would have foreseen the hazard. There was no surprise
element. In such circumstances, the standard of a reasonable driver required
taking the measures necessary to avoid the accident or the collision. Each of
the defendants fell short, and so negligence was found. The defence of
inevitable accident was not made out.

[27]        
In the present case, it seems to me that the analysis requires a proper
appreciation of the nuances of the matter.

[28]        
Viewed from a more general perspective, it is clear that the defendant
was aware that the road conditions were hazardous by reason of the snowfall and
the accumulation of ice and snow on the road surface. Photos in evidence, taken
following the collision, show heavy snow falling and a significant accumulation.
The defendant was driving cautiously to ensure that he would be able to
maintain control of his vehicle. It is also relevant that the defendant had
travelled this road before and was aware that there was a downgrade approaching
Nanaimo.

[29]        
The point in time to be specifically considered is when he was on East 29^th Avenue,
east of Nanaimo and just before he started down the incline to Nanaimo. At that
point, he was quite cognizant that the conditions were extremely slippery. He knew
that his chosen path required driving down a downhill grade. He could see that
the road was untracked and therefore there was no reason to believe that it had
been sanded or ploughed or salted. He must be taken to have realized Nanaimo
was a busy north-south arterial street, and that to safely take that course
would necessitate stopping his car at the bottom of the hill, at the
intersection of East 29^th and Nanaimo. Meanwhile, the heavy
snowfall continued, unabated.

[30]        
That was the scenario facing him and in which the hazard had to be
considered.

[31]        
In my view, for him to have continued on a route that would entail that
downhill travel in those conditions, knowing that he would have to be able to
stop, fell below the standard of care expected of a reasonable driver.

[32]        
It is true that once he was embarked upon his drive down the hill, there
were likely no reasonable steps he could have taken that would have enabled him
to stop before entering Nanaimo. However, it is my conclusion that the point at
which the issue of negligence has to be considered is prior to when he began
the descent.

[33]        
In the course of the examination and cross-examination of the defendant,
some time was spent dealing with possible strategies that might have been
employed, such as shifting out of gear and into neutral, steering in a certain
way or applying the brakes in a certain way and so on.

[34]        
To my mind, none of those points would really have much bearing upon the
matter.

[35]        
The road surface was extremely slippery. It is a notorious fact that
when Vancouver streets are covered in fresh snow, whether it is because of the
moisture present or the fact that the ambient temperature is often quite close
to the freezing point and not much colder, or for some other reason, they can
be expected to be very slippery and car crashes occur with regrettable
frequency.

[36]        
In the result, the level of hazard was significant. The downhill slope
to be negotiated aggravated that situation.

[37]        
Drivers must conduct themselves with appropriate caution. That didn’t
happen here.

[38]        
Put another way, is it reasonable to find that the defendant was met
with a hazard of which he had no prior warning or indication? The answer to
that is no. He, as a reasonable driver, must be taken to have known that
the road surface was slippery. What surprised him was the extent of the
slipperiness, and that being able to safely control his vehicle as it
approached Nanaimo Street would be essentially impossible.

[39]        
With great respect for Mr. Edbrooke, who impressed me as a careful
and conscientious person, this is not a matter of inevitable accident. It was
unfortunately a moment of judgment that, in these particular circumstances,
fell short of an acceptable standard of care.

[40]        
I find that liability has been made out. The collision was caused by the
defendant’s negligence and he is therefore liable to the plaintiff in damages.

Damages

[41]        
Mr. Tran says that he sustained significant injuries as a
consequence of the collision. In his submission, those injuries have caused
ongoing health difficulties which have in turn adversely impacted his enjoyment
of life and his ability to do the things he previously could, including earn a
livelihood. He says those effects are continuing in nature and so give rise to
a right to recover damages under a number of heads:

a)    non-pecuniary
damages – pain, suffering and loss of enjoyment of life;

b)    past
income loss;

c)     prospective
income loss – capacity to earn future income;

d)    the
cost of future care; and

e)    special
damages.

Discussion

[42]        
Mr. Tran is 55 years of age. He was born in Vietnam on December 1,
1958. He immigrated to Canada in 1980 and initially settled in Manitoba. He
subsequently moved to British Columbia.

[43]        
Mr. Tran is the father of four adult children, all daughters. The youngest
daughter, Sarah, was 25 years old when she testified at trial. As I understand,
she has had a variety of jobs, most recently having worked at a bakery. She has
also been quite generous in making herself available to assist her father on
his fishing trips, both before and after the occurrence of the subject motor
vehicle accident. She has done so since she was a child.

[44]        
Another of the plaintiff’s daughters testified in these proceedings as
well. Her name is Jennifer; she is employed with a major utility company
and has two children of her own. She sometimes assists her father with ordinary
household chores and such matters. She does not work on the fish boat, although
her former long-term boyfriend served as a crew member during one season. I
will make further reference to that later in these reasons.

[45]        
The final witness called by the plaintiff was his doctor, Dr. J. Ferguson.
Her medical report was filed as an exhibit.

The plaintiff’s injuries

[46]        
The plaintiff says that he was driving slowly and carefully because of
the snowfall. Both Mr. Tran and his wife, the only occupants in the
vehicle, were wearing seatbelts. Their vehicle was struck by the defendant’s
car without any prior warning or notice to them. The damage was sustained in
the left front area, particularly around the left front wheel assembly. As a
consequence, the car was propelled sideways and came to rest partially on the
sidewalk. The airbags in the plaintiff’s car deployed.

[47]        
The plaintiff says that he wasn’t immediately aware of having sustained
injuries. An ambulance and other emergency vehicles attended the scene and Mr. Tran’s
wife was taken away by ambulance; he was not. He subsequently called one of his
daughters who came to pick him up. The daughter then took him to the hospital
where his wife had been taken. Evidently his wife was released shortly thereafter
and the two of them went home.

[48]        
Mr. Tran says that he felt pain develop within a couple of days. He
described aching all over, having a headache, and a stiff neck, shoulder and
back. He went to see his physician, Dr. Ferguson, some five days after the
event. He presented with a series of physical complaints; she conducted an
examination and found some restricted range of motion. Her clinical diagnosis
was whiplash associated disorder of the cervical spine and seatbelt injury. She
also arranged for an x-ray of his spine.

[49]        
Twelve days later, the plaintiff returned to her office, complaining of
shortness of breath and right-sided chest pain. He also reported ongoing
headaches and left neck soreness. Dr. Ferguson was concerned about an
apparent decreased air entry to the right lobe of his lung; a chest x-ray
showed a moderate-sized pleural effusion (fluid on the lung) and possibly the
same condition on the left side.

[50]        
Dr. Ferguson had Mr. Tran return two weeks later. He continued
to complain of neck pain, headaches, poor sleep and shortness of breath. She
found a decreased range of motion in his neck but most troubling was a
continuing condition of decreased air entry to the right chest. She made an
urgent referral to a respirologist who saw the plaintiff the following day. A
thoracentesis was performed and that confirmed the presence of bleeding around
the lung. Mr. Tran was then referred to a thoracic surgeon for further
follow-up.

[51]        
Dr. Ferguson continued to follow the plaintiff. In addition to the
chest pain, he continued to report neck pain and he also complained of
abdominal pain.

[52]        
On March 17, 2009, the plaintiff was admitted to Vancouver General
Hospital where he had a thoracoscopic decortication and a mini thoracotomy.
While in hospital, a complication arose with internal lung bleeding, a
condition that is treated with intubation and steroids. In all, he was in
hospital for nine days.

[53]        
In layman’s terms, he had chest surgery to deal with the bleeding in his
pleural cavity, and then there was post-operative bleeding.

[54]        
Following his release from hospital, the plaintiff continued to see Dr. Ferguson.
He presented with complaints of ongoing chest pain, abdominal pain, and the
physical pain in his neck and shoulders as well as headache.

[55]        
He attended upon Dr. Ferguson intermittently through 2009 and into
2010. He continued to complain of the headache, together with neck pain
and pain in his right leg. He also reported the same chest pain which was
aggravated by walking or moving. In July of 2009, he complained of parathesia –
a numbness in his arms and hands – and also pain in his low back, knees and
legs.

[56]        
In early 2010, the plaintiff commenced a fairly intensive program of
physical rehabilitation with Karp Rehabilitation – 40 sessions in all. That was
completed by the end of March and he was assessed by the clinicians at Karp as
being ready to return to work in April.

[57]        
The plaintiff’s testimony as to the improvement to his physical ailments
(apart from the chest problem) is consistent with the doctor’s observations and
the reports he gave her. The rehabilitation program was of great benefit to him
and substantially restored his strength and significantly alleviated most of
his physical discomforts, apart from the chest. Unfortunately, he did not
continue on an effective regime of fitness, and his condition seems to have
regressed.

[58]        
The matter of his lung injury is more problematic. While the acute phase
has been dealt with, he has been left with pleural scarring. This results in a
restricted chest movement when breathing, shortness of breath and some chest
pain.

[59]        
With respect to prognosis, Dr. Ferguson doubts that Mr. Tran
will have any significant improvement in his chest pain as the scarring is
permanent. She says that he will always feel subjectively restricted in terms
of his breathing although she does not feel that is especially limiting in
terms of light activity or his capacity to work at sedentary employment. She does
believe that this condition is limiting for any heavy work. The second aspect
of his future health is with respect to the other physical pains or complaints
of pain. It is clear that the rehabilitation program that he engaged in very
significantly relieved the physical aches and pains. By time of trial, those
were essentially resolved, although he claims to experience the odd low back
pain.

Non-pecuniary damages

[60]        
I find that the pain and soreness of the neck, shoulder and cervical back,
as well as the headache experienced by Mr. Tran, was as a consequence of
the motor vehicle accident, as was the chest and lung injury. I am not able to
conclude that his complaints of low back pain, parathesia in his hands and arms,
and his knee and leg pain were caused by the accident. I note that there was no
mention of those matters until more than six months after the collision. I do
not understand the evidence of Dr. Ferguson to support a finding that they
resulted from the accident.

[61]        
The evidence satisfies me that those physical pains (apart from the
chest and lung injury) had significantly resolved by 2011 and were
substantially resolved by time of trial. What residual discomfort remains will,
I expect, based upon past events, effectively find full resolution. It is apparent
that ongoing efforts of physical fitness will necessarily be a factor in that
coming about.

[62]        
The plaintiff’s chest condition is a matter that will continue to be a
problem for him. There is some residual discomfort now and the totality of the
evidence satisfies me that it will not fully resolve. While the condition will
slow him somewhat, its effect will in fact not be especially profound. It
forces him to adopt a slower pace in doing activities, and his strength will
not be what it once was, but that is probably the extent of the effect on him.

[63]        
While these injuries, taken overall, certainly impacted meaningfully for
a time on his ability to perform everyday tasks and chores and be comfortable
in his life, I am not satisfied that he is now actually limited in a
substantial way, other than the effect that the lung condition has had, as I
have explained it.

[64]        
As for the matter of the impact of the injury upon him psychologically,
there is no question that, since the accident, he has shown himself to be less
patient and more grumpy from time to time. With regard to the separation from
his spouse, I am unable to conclude that that was caused by the motor vehicle
accident. The evidence indicates that the marital relationship had been
essentially moribund for some time, and that was notwithstanding the effects of
the motor vehicle accident. I note that he filed his taxes indicating his
status as separated well prior to the happening of the event at bar.

[65]        
In short, I am unable to accept that the motor vehicle accident and its
consequences have resulted in anything that could fairly be described as a mood
disorder or a depressive condition. There is no evidence to establish that.

[66]        
As for the plaintiff’s complaint of stomach discomfort, there is no
basis in the evidence to find that to be a consequence of the motor vehicle
accident.

[67]        
The plaintiff is not a person who has a great many interests or hobbies
other than his work. It is clear that the vocation of fishing is an important
part of his world, and I accept that the aftermath of the accident has
adversely impacted upon his ability to do that and to do many of the small and
incidental things that are related to the life of a fisherman, such as the
tasks of maintaining his gear and equipment.

[68]        
The plaintiff relies upon two authorities in support of his claim for
non-pecuniary damages. One of the cases is Markut v. Fisher, [1996]
B.C.J. No. 12: there, a plaintiff who had suffered a series of very significant
injuries, including contusions of the lung, was awarded the sum of $125,000.

[69]        
The plaintiff also relies on Oates v. Morgan, 2005 Carswell Nfld
350. In that case, a plaintiff sustained a number of injuries, several of which
were described as life-threatening, including lung injuries similar to the
matter at bar. She was awarded the sum of $75,000.

[70]        
The defendant makes reference to four cases.

[71]        
In Sandhu (Guardian of) v. Chong, 2002 BCSC 1753, the plaintiff
suffered an eye injury, rib fracture, soft tissue injury and a lung injury
similar to that of Mr. Tran. The chest pain was continuing. The plaintiff
was awarded $40,000 in general damages.

[72]        
In Turlock v. Easy, 1992 Carswell BC 2273, the plaintiff incurred
soft tissue injuries to neck and shoulders, fractured ribs, a lung injury and a
fractured heel bone. She was hospitalized for 13 days and confined to a
wheelchair for six months. She was awarded $50,000 in non-pecuniary damages.

[73]        
In Karmali v. Dunn, [1991] B.C.J. No. 270, the plaintiff
suffered a fractured rib, chest injury, a fractured neck, fingers, fibula and
soft tissue injuries. The effects were ongoing. She was awarded $65,000 for
non-pecuniary damages.

[74]        
Finally, in Watson v. Kang, [1993] B.C.J. No. 1697, the
plaintiff suffered a lung injury, broken ribs, post-concussion syndrome and
soft tissue injuries. She was left with chronic pain and unable to work for
four years and then returned to only part-time work. She was awarded non-pecuniary
damages of $80,000.

[75]        
I note that in many cases where a lung injury similar to Mr. Tran’s
is incurred, there are often also other more serious injuries. Fortunately for Mr. Tran,
that is not the case here.

[76]        
Obviously none of the authorities to which I have been referred are
specifically like the plaintiff’s situation. As well, a number of these
decisions are quite dated, and that impacts upon the quantum of the damages
denominated in present-day dollars.

[77]        
Taking all of that – the cases and the other factors – into
consideration, it is my conclusion that the plaintiff in the matter at bar is
properly entitled to an award of non-pecuniary damages to compensate for pain,
suffering and loss of enjoyment of life in the amount of $85,000.

Past income loss

[78]        
The matter of arriving at a fair and proper determination of the
financial loss that the plaintiff has sustained and will sustain because of the
effects of the motor vehicle accident is difficult.

[79]        
It is difficult because of the nature of his work. He is a commercial
fisherman; he owns and operates his own boat. His earnings are dependent upon
two variables: when the Department of Fisheries and Oceans permits commercial
fishermen to operate – the so-called openings – and the age-old issue of
whether and how many fish will be caught.

[80]        
The former, while largely unpredictable, can be known and made part of
the analysis with respect to past fishing seasons. For the future, there is a
substantial element of unpredictability.

[81]        
The second variable is essentially an unknown, and that makes the present
exercise a challenging one.

[82]        
Additionally, there are other factors that impact his income, such as
the market price for the fish he catches and the various costs entailed in the operation
of his boat.

[83]        
As for losses in the time period between the motor vehicle accident and
the time of trial, the plaintiff’s actual fishing income is known for the years
2009, 2010 and 2011. It is set out in a table, which I will replicate here. I
note that this table actually extends back to the taxation year 2003. That
additional data is helpful for making the necessary determinations.

[84]        
I should also note that, in addition to his fishing income, the
plaintiff ordinarily receives employment insurance benefits in those years in
which he has earned some minimal level of fishing income. However, to be clear,
I am concerned only with the loss of income earned by fishing.

[85]        
Before the motor vehicle accident, it was the plaintiff’s practice to
operate his boat without hired crew. His daughter Sarah has, for several years,
accompanied him to help out. Historically, and particularly when she was
younger, she helped with provisions and food preparation and some incidental assistance
in the actual fishing processes. That has changed since the motor vehicle
accident. She testified that she worked out doing physical exercise in order to
become stronger and because more was expected of her. She has taken on an
active and functional role, although she says that her skills and abilities are
not first rate, and there are times when she feels that she is not able to do
all that is needed. Matters are made more difficult because she says that when
things are busy and much is happening, her father sometimes becomes frustrated
and short-tempered with her.

[86]        
It is to be noted that in 2009 there were no commercial fishing openings
available to the plaintiff and thus there was no opportunity to earn income
that year.

[87]        
In 2010, the plaintiff used Sarah’s assistance, but also arranged to
have another able-bodied crew member, Mr. Vo, work with him. He was the
boyfriend of the plaintiff’s daughter Jennifer. Evidently he was not highly
skilled or experienced as a fisher, but the three of them (the plaintiff, Sarah
and Mr. Vo) did their best to work together. According to both the
plaintiff and Sarah, they were able to function at a reasonable level of
competence but no more. There were some difficulties and some inefficiencies.
That was a particularly good year for fishing on the Fraser. I note that a
total value of the plaintiff’s catch that season was in excess of $40,000. The plaintiff
testified that he believes that, if he had not been hampered by the effects of
the injury and thus able to operate in a usual way, he would have been able to
catch more fish. He also says that he was required to pay Mr. Vo a crew
share for his labour, some $20,000, and that had a very significant effect in
reducing his net income for the year.

[88]        
After that, he has elected to conduct his fishing activities with only
himself and Sarah. I gather that has been somewhat more effective, presumably
because he has continued to recover and because he has a better sense of his
own limitations and also because Sarah has become a more skilled and
experienced worker.

[89]        
In 2012, fishing had not fully concluded by the time of trial, and so no
final outcome was known. The essence of Mr. Tran’s position is that he has
gone out when there are openings, but his injuries and their effects have made
him less able, less confident and less productive.

[90]        
The assessment of loss is also complicated because there are times when
the plaintiff elects not to sell his catch to the usual commercial packers, but
rather chooses to save fish for himself, his family and his friends.

[91]        
With that background, it is necessary to determine, to the best extent
the available information will permit, the financial loss the plaintiff has
sustained from the time of the motor vehicle accident up to the date of trial.

[92]        
The plaintiff submits that an award of $30,000 is warranted. The
defendant contends that the plaintiff has simply failed to prove a claim for
this alleged loss, and so there should be no damages awarded.

[93]        
I am satisfied that the effects of the motor vehicle accident did
adversely affect the plaintiff’s ability to fish as he usually did. The matter
of quantifying that loss is difficult and necessarily entails an element of
estimation or informed guesswork. For example, attempting to quantify what the
outcome of the 2010 fish year would have been if the plaintiff had been without
the assistance of Mr. Vo is impossible to know. Is there some causal
connection between the use of Mr. Vo on the crew and the greater catch? I
cannot say what the answer is.

[94]        
It must of course be recognized that the onus lies upon the plaintiff to
prove his losses.

[95]        
In the final analysis, I conclude that an appropriate award of damages
to compensate Mr. Vo for the income lost between the date of the accident
and the date of trial is $20,000.

Loss of capacity to earn income in the future

[96]        
All of the background that I set out with respect to the past income
loss claim applies to this head of damages as well. In fact, the exercise is
more challenging because there are more unknown factors: the matter of
openings, the size of the runs and other factors that could impact upon Mr. Tran’s
ability to earn income from fishing, including how long he continues to fish
commercially.

[97]        
I am satisfied that the effects of the motor vehicle accident have
adversely affected to some degree the plaintiff’s capacity to earn an income in
his vocation. Those effects have made him less capable to do that. That has
impacted upon his fishing activities in the past. Going forward, I accept that
the lung and chest condition which he has sustained from the accident will have
some effect in the future, namely a degree of diminished strength, agility and
endurance.

[98]        
It is relevant to take into account that he appears to have abandoned
the approach of employing a full share crew member and has returned to his
pre-accident format of fishing by himself with Sarah’s help.

[99]        
I consider that the proper approach is to treat that diminishment of his
capacity as a loss of a capital asset, to which I attribute a value of $25,000.

Cost of future care

[100]     The
plaintiff advances a claim under this head that is comprised of a number of
elements. Those are set out in a report authored by Gary Worthington-Wright, an
occupational therapist who conducted an assessment of the plaintiff’s
functional abilities and limitations and his future care needs and costs.

[101]     A summary
of his recommendations for the plaintiff includes the following:

·                
fitness pass;

·                
kinesiologist/trainer;

·                
symptoms management;

·                
psychological intervention;

·                
vocational testing;

·                
home maintenance;

·                
seasonal yard maintenance;

·                
equipment and supplies such as a stoop stool to relieve pressure
on his thoracic cavity.

[102]     The
plaintiff says that these various items will help him maintain or strengthen
his conditioning so he can continue to at least partially overcome the
limitation of what is likely a lifelong injury. The estimated present value of
this list of items has been calculated and determined to be between $55,402 and
$57,288. The defendant contests this claim as excessive, extravagant and
unwarranted.

[103]     I have
examined the evidence of Mr. Worthington-Wright with great care.
With respect, when I view this list through the prism of what is
reasonable in terms of what I actually believe is medically justifiable
and what the plaintiff will probably incur, I have considerable difficulty in
accepting that the claim as it is advanced is realistic.

[104]     Undoubtedly
defendants must expect that they will have to pay damages to compensate
plaintiffs for reasonable measures that are required as a consequence of their
negligent actions. A defendant should expect to be required to reasonably ameliorate
the injuries that a plaintiff has sustained. In deciding what damages are
appropriate, the court will examine what the evidence establishes to be medically
justified in the circumstances. At the same time, practical common sense will
play a role in the determination.

[105]     In Penner
v. Insurance Corporation of British Columbia, 2011 BCCA 135, the Court of
Appeal referred with approval to a statement made by Mr. Justice Johnston
of this Court in Travis v. Kwon, 2009 BCSC 63. There, Johnston J.
observed that claims for damages for cost of future care have grown
exponentially following the so‑called trilogy of tort cases in 1978. He
observed that while such claims are no longer confined to catastrophic injury
cases, it is useful from time to time to remember that damages for future care
originated with catastrophic injury cases and were intended to ensure that a
catastrophically injured plaintiff could live as complete and independent a
life as was reasonably attainable through an award of damages. Johnston J.
observed that the passage of time had seen more extensive and elaborate claims
in cases where the injuries are nowhere near catastrophic in nature, and that claims
seeking quite extensive lists of items have become commonplace.

[106]    
Referring to that observation, Newbury J.A. said this:

This is a reminder that a little
common sense should inform claims under this head, however much they may be
recommended by experts in the field.

[107]     To my
mind, that comment is apt in the context of the present matter.

[108]     It is
glaringly apparent from the evidence that a very important component of the
plaintiff’s maximal recovery and ability to live in relative comfort is
achieving a proper measure of physical conditioning. The Karp program he
attended proved that proposition: after 40 sessions he was fit and able to return
to work. Unfortunately, following that, for a series of reasons, he
discontinued those activities. His conditioning then deteriorated quite
markedly.

[109]     I accept wholeheartedly
that an award of damages for the cost of future care should enable him to
pursue a proper course of exercise, together with some training and coaching.
As well, he may require some occasional symptom management measures that may
have some cost to him. He may have need from time to time for certain specific
items such as the stoop stool recommended by Mr. Worthington-Wright.

[110]     However, I
am unable to accept the extensive list that has been put forward as being
justified and as being measures that this plaintiff is at all likely to pursue.
For example, the plaintiff made clear that he wishes to remain a fisherman.
Accordingly, vocational testing is of no practical value. Included in the claim
are amounts for home maintenance and yard maintenance. The reality is that this
man lives on a boat and has no yard. As far as housing is concerned, he aspires
to move into some sort of a cooperative-condominium situation. I simply don’t
see that these costs are at all likely to be incurred. Under the heading of
“Symptoms Management”, the report apparently contemplates chiropractic and
physiotherapy treatment. The fact is, he has shown no inclination to avail
himself of those modalities to date. There is no support for these
measures in the evidence of Dr. Ferguson.

[111]     In all the
circumstances, I am simply unable to accept the claim as it has been advanced,
and find that there is no proper basis to award damages to provide compensation
for most of the elements sought.

[112]     In the
result, I have elected to deal with the matter in a global way and conclude
that an award of $6,000 will properly satisfy this claim.

Special damages

[113]     The
parties have agreed that the special damages in the amount of $678.05 should be
compensated, representing the cost of treatment and care for physical symptoms.

Conclusion

[114]     In the
result, I find that the defendant was responsible for the motor vehicle
accident of December 13, 2008 and that the plaintiff, Mr. Tran, sustained
injuries in that accident for which he is entitled to be compensated. The
awards of damages are as follows:

[115]    
In the absence of there being considerations of which I am unaware, the
plaintiff shall recover his costs of this action. If necessary, arrangements
may be made through New Westminster Supreme Court Scheduling to provide further
submissions on that issue.

“The
Honourable Mr. Justice Williams”