IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140109

Docket: M89340

Registry:
New Westminster

Between:

Laureen Sikora

Plaintiff

And

Anthony Gordon
Brown

Defendant

–
and –

Docket: M045156

Registry:
Vancouver

Between:

Anthony Gordon
Brown

Plaintiff

And

Laureen Sikora,
Mann Motors Ltd.

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Verhoeven

Reasons for Judgment

I.                
Introduction

[1]            
The parties make claims against each other for personal injury damages
arising out of a motor vehicle accident that occurred in the early morning
hours of Saturday, December 14, 2002.

[2]            
On that occasion Ms. Sikora was the driver of a 1989 Ford Escort
she leased from the vehicle’s owner, the defendant Mann Motors Ltd.  Mr. Brown
was her passenger.  They were travelling westbound on Fraser Highway in Langley,
B.C., at about 2:25 a.m.  Just after they went through the intersection of
Fraser Highway and 64^th Avenue, the vehicle went off the road and
crashed into a ditch.  Both parties sustained injuries.  Each blames the other
for causing the accident.

[3]            
Ms. Sikora says that Mr. Brown caused the accident by grabbing
hold of the steering wheel, thereby interfering with her control of the vehicle
and causing it to veer off the road to the right, into the ditch.  Mr. Brown
says that Ms. Sikora invited him to feel the steering wheel, which was
shaking, but that his action in so doing did not cause the accident, and that Ms. Sikora
is solely at fault for causing the accident.

II.              
Background Facts

[4]            
At the time of the accident, Ms. Sikora was 43 years of age.  She
worked as a store clerk for the B.C. Liquor Distribution Branch (“LDB”),
working at various government liquor stores.  She resided in Surrey B.C. with
her teenage son and daughter.  An older son was independent.

[5]            
Mr. Brown was 37 years of age.  He worked as an excavator operator
for Bray Enterprises Ltd.  He resided in Surrey with his wife and three
children.

[6]            
Ms. Sikora and Mr. Brown first met in July 2002 when they went
with Mr. Brown’s sister to the Merritt Mountain Music Festival.  She was
divorced. He was married.  An intimate relationship began in the late summer or
early fall.  The relationship was not revealed to Mr. Brown’s wife.  Over
the next several weeks they spent time together in activities such as meals,
walks, movies, concerts, and visits at Ms. Sikora’s home.

[7]            
On the evening of Friday, December 13, 2002, they met at Gabby’s Cabaret
in central Langley.  Mr. Brown had played hockey that evening at a rink in
Langley. He called Ms. Sikora at her home and invited her to meet him at
the nightclub.  She agreed.  He drove from the rink to the nightclub in his
truck.  Ms. Sikora drove to the nightclub in her Ford Escort. She had
leased the car for about a year and a half prior to then.

[8]            
Mr. Brown telephoned Ms. Sikora at about 11:00 p.m.  He
arrived at the nightclub before she did.  They socialized at the nightclub
together, drinking Long Island Iced Teas, which are alcoholic mixed drinks.  Ms. Sikora
says that she drank only one drink. Mr. Brown says they each had “a
couple”.  Mr. Brown also had one or two pints of beer after his hockey
game.  The nightclub closed at 2:00 a.m.  They left prior to closing, at about
1:30 or 1:45 a.m.  As noted the accident happened at about 2:25 a.m.

[9]            
Their versions of events begin to diverge with their departure from the
nightclub.  She says they had no plans to leave together, and that she said
good-bye to him in the nightclub.  She says she walked to her car in the
parking lot alone, but encountered a friend in the parking lot, who she spoke
with for several minutes before entering her vehicle.  She says she was
surprised to find Mr. Brown in the car.  She says that although she was
surprised she did not object to his presence, and that she proceeded to drive
to her home in Surrey with Mr. Brown in the passenger seat.

[10]        
Mr. Brown says that they walked out of the nightclub together.  He was
planning to leave his truck near the nightclub. It was parked on the road
nearby.  He agrees with her that she met a friend in the parking lot, who she
conversed with for a few minutes.  He says he waited nearby while this
occurred.  They then got in her car.  He denies surprising her by getting into
the vehicle surreptitiously.  He says he suggested they go to the Knight and
Day restaurant in Surrey.  He says they were on the way to the restaurant when
the accident occurred a few minutes later.

[11]        
Whether they were headed to the restaurant or to Ms. Sikora’s home,
their route took them westbound on Fraser Highway, and through the major
intersection with 64^th Avenue, in the vicinity of the place of the
accident.

[12]        
Both were very familiar with the intersection.  Ms. Sikora had
travelled through the intersection many times prior to the accident.  There was
an LDB liquor store in Langley and when she worked at that store she drove
through the intersection twice each day.  She testified that the intersection
was uneven, in that there were what she described as “troughs” or “divots” in
the intersection.  She says the troughs caused her vehicle to shake as it went
over them.  She says that as she drove she was telling Mr. Brown about her
new car that she had ordered that day.  She says she commented that, “I
couldn’t understand why they never fixed them [i.e. the troughs in the road]” and
“[t]hese Fords all have this weak [or “sloppy”] steering.”  The road made the
steering wheel and the car shake.  She says she may have said to him, “[l]ook
at the wheel, how it’s shaking.”  She says that after successfully proceeding
through the intersection, Mr. Brown suddenly grabbed the steering wheel.
He held onto it while she struggled to retain control.  He pulled down on the
wheel causing the vehicle to veer to the right.  She says he only let go of the
wheel when it was too late; she could not bring the vehicle back to the left,
as they were already headed for the ditch, where they ended up.

[13]        
She testified that it was her habit to always slow down for this
intersection due to its condition, but she did not specifically testify to
slowing down on this occasion.  She gave no evidence that she applied the
brakes at any time.

[14]        
Mr. Brown confirmed that at the time of the accident the pavement in
the intersection was “kind of dished” due to the passage of heavy trucks.  From
past experience he was familiar with the sensations of shaking and vibration as
he drove through the intersection.

[15]        
Mr. Brown says that he had never been a passenger in Ms. Sikora’s
Ford Escort before.  As they went through the intersection with 64^th
Avenue her steering wheel was shaking.  She said, “[o]h no, there goes my
steering again, it’s shaking”.  She asked him to feel the wheel. He placed his
left open hand on the wheel, then removed it.  He denies that he “grabbed” the
wheel.  He denies that there was a struggle for control.  He says several
seconds after he removed his hand from the wheel, the car went somewhat to the
left, and then “the car just took off” to the right, into the ditch.

III.            
Analysis of Liability

[16]        
Determining the facts of the accident is very difficult.  The accident
occurred almost 11 years prior to the trial.  There is no independent
corroborative evidence of any kind with respect to the accident itself. There
is no scene diagram or photograph, analyst’s opinion, or independent witness.  The
intersection in question has been reconfigured since the accident.  There is no
independent evidence about the vehicle, other than several post-accident
photographs taken by ICBC showing severe damage to the vehicle.  Thus the
events relating to the accident must be determined based solely on the parties’
testimony.  However I do not find either party’s version of what occurred in
the accident to be very credible.

[17]        
The difficulties I have with Ms. Sikora’s testimony begin with her
version of the events upon her departure from the nightclub, which I reject.  In
chief she testified that she and Mr. Brown had no further plans to be together
for the evening.  She did not invite Mr. Brown to accompany her when she
left the nightclub.  After saying good-bye to Mr. Brown in the nightclub,
she proceeded to walk to her car in the parking lot, where she encountered an
old friend who she chatted with for five minutes.  She then walked to her car,
got in, and noticed that Mr. Brown was in her car.  Although I would
expect that in the circumstances this would be very surprising and would have
resulted in some comment from her, she testified that she “really didn’t say
anything to him”.  She did not say, “what are you doing here?” or something
along those lines.  She testified that she just “got in my car and started to
drive” home.  On its face this version of events is quite peculiar.

[18]        
On cross-examination she was asked how Mr. Brown could have managed
to mysteriously enter her vehicle.  She acknowledged that she would have locked
the vehicle when it was parked, and that Mr. Brown had no key.  The car
was an older model with manual locks.  In other words the doors could not be
unlocked remotely using a signal from a key fob, so she could not unlock the
vehicle from a distance.  She tried to explain by saying that she unlocked the
driver’s door while she was talking to her friend.  She then turned around to
talk to her friend, with her back to the car.  Both of them were standing
within a foot or two of the vehicle.  This was inconsistent with her evidence-in-chief,
where she had said that after the conversation, she walked to the car.  She
surmised that Mr. Brown may have slipped in behind her during the
conversation, entering the vehicle through the driver’s door, without her
noticing.  It seems highly unlikely that Mr. Brown, who is a large man,
could accomplish this in the circumstances.  He would also have to escape
notice or at least comment by Ms. Sikora’s friend, who was also standing
very nearby the vehicle, and presumably facing her and the vehicle.  It would
require him to climb from the driver’s seat over to the passenger seat.  Given
the nature of their relationship, there is no reason for Mr. Brown to act
in such a strange manner.  It seemed obvious to me that Ms. Sikora was fabricating
her evidence on cross-examination in this respect in order to make sense of her
testimony in chief.  Although the episode is itself collateral, Ms. Sikora’s
testimony about it puts the entirety of her testimony about the accident into
question.

[19]        
I had difficulty making sense of her testimony concerning the accident
itself. She testified in chief that as the wheel began to shake, caused by the
troughs in the intersection, she commented about the car’s steering and may
have invited Mr. Brown to look at the shaking of the wheel.  I have
difficulty comprehending how the conversation Ms. Sikora testified about
could have occurred in the short amount of time it would take to cross the
intersection.

[20]        
In chief and in cross-examination she testified that the steering wheel
was shaking as she drove through the intersection, and that Mr. Brown
grabbed the wheel after they were through the intersection.  It does not make
sense to me that Mr. Brown would grab the steering wheel after the car had
already gone through the intersection.  Ms. Sikora did not testify that
the troughs led to any sustained reaction in the steering.

[21]        
The sense of her testimony was that the struggle for control was
somewhat prolonged.  She said he “finally” let go, but by then it was “too
late, we were already on our way in.”  She estimated that four or five seconds
elapsed from when he grabbed the wheel and when the car came to rest in the
ditch.  She says that she was travelling at a speed of about 50 km/h.  In
cross-examination she said that “some seconds” passed after Mr. Brown let
go of the wheel and the car hit the ditch.  These time estimates are difficult
to reconcile.  In general I am not able to develop a coherent understanding of
the sequence of events relating to the accident from Ms. Sikora’s
testimony.

[22]        
It does not make sense to me that Mr. Brown would actually pull the
wheel downwards with his hand, thus causing the vehicle to leave the roadway,
as Ms. Sikora describes.  I considered it likely that this evidence was an
embellishment on her part.

[23]        
Her behaviour after the accident is difficult to reconcile with her
current testimony.  There is no evidence that in the immediate aftermath of the
accident Ms. Sikora held Mr. Brown responsible for causing it.  She
was taken by ambulance to Langley Hospital.  Mr. Brown went with her.  She
told the attending physician that she was the driver and that she “lost
control” of the vehicle.  She did not mention a struggle with the passenger.

[24]        
The police took her from the hospital to the police station.  Later that
morning she allowed Mr. Brown to drive her home from the police station
and help carry her inside.  He remained at her home for some time.  Her eldest
son, her mother and her brother arrived.  When her son asked her how the
accident happened, she said that the car may have had a mechanical problem.  At
trial she explained this falsehood by saying that she was attempting to protect
Mr. Brown because she was afraid of the consequences if her son were to
know the truth.  I do not find this explanation convincing.  The suggestion
that Mr. Brown might be physically harmed is without foundation.  As for
his reputation in the eyes of her family, she did not seem concerned about that
when she later brought legal proceedings against Mr. Brown in late 2004, well
before their relationship ended in early 2006.  Her statement is more
consistent with a sense of embarrassment on her part, perhaps because the
accident was the result of joint foolishness on the part of both parties, which
is my conclusion, as I will explain.

[25]        
A few days after the accident she told her family doctor, Dr. Arnold,
that the car’s steering was “loose” and the “car lost control.”  This is
supported by his clinical records.  At trial she denied saying this to Dr. Arnold
although it is similar to what she agrees she said to the doctor at the
hospital.  Dr. Arnold testified. Based on his testimony and clinical
notes, I find that his notes are an accurate reflection of what she said.  However
a year later in the context of her ICBC claim she told Dr. Arnold that her
passenger had caused the accident by grabbing the steering wheel.  The
statements she made to her doctor are inconsistent.  The change in her
statements to her doctor supports a conclusion that she began blaming Mr. Brown
after she decided to make a claim and she had a financial incentive.

[26]        
In the days and weeks following the accident Ms. Sikora allowed Mr. Brown
to drive her to medical and other appointments.  They went to ICBC together on
January 6, 2003, about three weeks post-accident.  There, in her presence, Mr. Brown
signed a statement stating that he “reached over and grabbed the steering wheel”
to stop it from shaking.  At some later point in 2003 ICBC told her that Mr. Brown’s
claim against her could exceed her policy limits.  When interviewed by ICBC
later in 2003, she said that Mr. Brown caused the accident by grabbing the
steering wheel.  By this point she had very strong financial reasons to blame Mr. Brown
exclusively.

[27]        
On another collateral matter going to her credibility, I do not accept Ms. Sikora’s
evidence as to what she was told by the doctor at Langley Hospital on the night
of the accident.  She says that when the doctor discharged her from the
hospital she was continuing to complain about her injuries, and he said, “[s]top
being such a baby, there is nothing wrong with you.”  The emergency department
records show that she was diagnosed with a fractured right ankle, facial
laceration and chest wall contusion.  It may be that Ms. Sikora felt that
the doctor’s bedside manner left something to be desired, but in my view it is
highly unlikely that any emergency department physician would use such language,
particularly where significant injuries have been diagnosed.

[28]        
However, I also have difficulty accepting Mr. Brown’s version of
events relating to the accident. In general I did not find Mr. Brown to be
a reliable witness.

[29]        
I accept that Ms. Sikora and Mr. Brown left the nightclub
together as he states, and that they were headed to her house or perhaps at his
suggestion, they would go to her house after first going to a restaurant.

[30]        
At trial, in his evidence-in-chief, Mr. Brown testified that he
only placed his open hand on the steering wheel. He denied that he “grabbed” the
steering wheel in the sense of wrapping his fingers around it and holding it.  At
trial he denied the truth of his examination for discovery evidence where he
said that he “squeezed his hand over [it] to feel it and then I let go of it
again.”  In his examination for discovery he denied holding the wheel in order
to stabilize it.  His evidence at trial was markedly inconsistent with his ICBC
statement.  At trial he reluctantly admitted the truth of his January 6, 2003 statement
to ICBC in which he states that he grabbed the steering wheel, that he tried to
stop it from shaking, and that he held it for a few seconds before letting go.

[31]        
He confirmed at trial his examination for discovery evidence that Ms. Sikora
was driving at about 60 km/h.  In my view her estimate of 50 km/h is likely an
underestimate.  The higher speed is supported by Mr. Brown’s evidence, the
fact of the accident, and the severe damage to the vehicle.

[32]        
In his ICBC statement, Mr. Brown said that “Laureen did not tell me
to let go of the steering wheel.”  He confirmed this evidence at trial.

[33]        
Apart from his evidence concerning the accident, there are other
difficulties with Mr. Brown’s credibility as a witness.  I will refer to
some of these concerns below, in relation to his credibility regarding his
accident injuries and their consequences.

[34]        
When Mr. Brown returned home on the morning of Saturday, December
14, 2002, he told Mrs. Brown that he had been injured when he intervened in
a fight at the nightclub.  She initially accepted this, but it appears that Mrs. Brown
did not inquire too deeply as to his story.  In the days following the accident
she repeatedly had to help remove bits of automotive windshield glass embedded
in his face.  Mrs. Brown did not learn the truth about Mr. Brown’s relationship
with Ms. Sikora and about the accident until late in 2004, when Mrs. Brown
read the endorsed Writ of Summons served by Ms. Sikora at that time, which
referred to the accident.  Mrs. Brown demanded that Mr. Brown tell
her the truth.  He says he did so then.  Standing alone Mr. Brown’s lies
to his wife are not very material to his credibility as a witness.  However of
real significance is that on examination for discovery in January 2006 Mr. Brown
lied under oath about the nature of his relationship with Ms. Sikora prior
to the accident.  According to his evidence at trial he had by then already
revealed the truth to his wife, and therefore had no purpose in lying about it
on the examination.

[35]        
An important question is whether Ms. Sikora invited Mr. Brown
to feel the steering wheel, as he claims, but she denies.  On balance, I think
it likely that she did so.  She initiated the topic of the condition of the
road and its particular effects on her vehicle’s steering.  She acknowledges
that she may have invited Mr. Brown to observe the wheel.  It seems more
logical that she would invite him to feel it for himself, and that he would do
so in response to an invitation.  I accept Mr. Brown’s evidence that she
did not tell him to let go of the steering wheel.  Ms. Sikora was sitting
next to Mr. Brown when he made this statement to ICBC. There is no
evidence that she protested his involvement with the vehicle steering at the
time.  If he suddenly grabbed the wheel against her wishes I would expect her
to protest.  Her statements and behaviour following the accident are more
consistent with joint responsibility in causing the accident.

[36]        
Ms. Sikora and her mother testified to a conversation with Mr. Brown
that took place at Ms. Sikora’s kitchen table in which he supposedly
admitted to causing the accident.  Ms. Sikora says that the admission was
made sometime in the spring of 2003, and that Mr. Brown said that if “[I]
would not have grabbed the wheel, this accident would never have happened.” 
Her mother testified to the same conversation in almost precisely the same
terms.  She said that Mr. Brown said, “One thing I know for sure, if I had
not pulled that wheel, this accident would not have happened.”  She repeated
this statement verbatim several times.  She had essentially no recollection of
any details of the circumstances other than this admission, which of course is
strikingly similar to her daughter’s testimony.  The evidence is notably convenient
for Ms. Sikora.  I place no weight on this evidence whatsoever.

[37]        
In these difficult circumstances, where neither version of events is
reliable and where there is essentially no independent corroborative evidence
one way or another, I find as follows.  Ms. Sikora had been drinking some
alcohol at the nightclub but was not seriously intoxicated.  Mr. Brown had
been drinking as well, somewhat more than she had, but was a large man and was
also not seriously intoxicated.  They left the nightclub together intending to
go to Ms. Sikora’s home. Along the way they discussed going to a
restaurant.  Whether they actually agreed to go to the restaurant is
immaterial.  Ms. Sikora was driving at about 60 km/h as they drove through
the intersection.  She was aware that the intersection caused her vehicle to
shake, and that the steering of her vehicle was notably “loose” and prone to
shaking.  Either before entering the intersection or in its midst, in the
context of telling Mr. Brown about the new car she had ordered that very
day, she commented about the condition of the intersection, complained that it
should be repaired, and complained about the poor condition of her vehicle’s
steering in common with Fords generally.  She did not slow down before entering
the intersection.  She invited Mr. Brown to observe the shaking of the
steering wheel, and to feel the steering wheel of the car for himself.  He held
it for a few seconds then let go.  The combined effects of Mr. Brown’s
holding of wheel, the condition of the road and vehicle, and Ms. Sikora’s manner
of driving the vehicle caused her to lose control of the vehicle some seconds
after Mr. Brown let go of the wheel.  The precise mechanics of this are
impossible to sort out. She did not brake at any time.  The vehicle likely swerved
left before veering to the right, and then left the roadway to the right side,
before eventually coming to rest in the ditch upon impact.

[38]        
I find that both parties were negligent and that they both contributed
to causing the accident in equal measure.  Ms. Sikora was negligent in not
slowing down before entering the intersection or when proceeding through it,
when she was very familiar with the defects in the road and the particularly
significant consequences to her vehicle of the defects.  In somewhat precarious
circumstances, she invited Mr. Brown to feel the steering wheel, when she
ought to have known that his doing so could have unpredictable consequences,
and could affect her ability to properly control the vehicle.  She did not slow
down when he held the steering wheel for several seconds.  She lost control of
the vehicle after he let go of the wheel.

[39]        
Mr. Brown was also negligent, in holding the steering wheel for a
few seconds, when he knew or ought to have known in all the circumstances,
including the defective condition of the road and Ms. Sikora’s comments
about the problems with her vehicle’s steering, that his actions could affect Ms. Sikora’s
ability to control the vehicle.  I find that his actions materially contributed
to her loss of control of the vehicle, and that the accident would not have
occurred otherwise.  I do not accept his evidence that he merely touched the
wheel with his open hand to feel it shaking.  He negligently grasped the wheel
and held it in such a manner that it interfered with her ability to control the
vehicle.

[40]        
Ms. Sikora argues that she was not negligent and that the accident was
caused solely by the negligence of Mr. Brown in grabbing the steering
wheel.  She relies on Lavigne v. Buller, 1990 CarswellBC 1791 (S.C.),
aff’d 1993 CarswellBC 823 (B.C.C.A.) [Lavigne] and McEvoy v.
McEachnie, 2008 BCSC 1496, aff’d 2010 BCCA 67 [McEvoy].

[41]        
In Lavigne, the plaintiff Gordon Lavigne was a passenger seated
behind the driver, Kimberly Buller.  There were two other passengers in the
car.  All of the passengers were intoxicated and unruly over the course of a
long drive.  The driver was sober and driving carefully and prudently.  Lavigne
reached forward from the back seat in an effort to grab the steering wheel. 
The driver was momentarily distracted by this.  She lost control of the
vehicle, which left the highway resulting in injury to all four occupants.  The
court held that Lavigne recklessly interfered with the driver by attempting to
grab the steering wheel for no reason whatsoever and that the accident would
not have occurred otherwise.  He was held to be wholly at fault.

[42]        
Similarly in McEvoy, the court held that the front seat
passenger, Ms. Forster, while intoxicated negligently grabbed the steering
wheel for no valid reason, causing the vehicle to veer off the road.  The driver
was held not to be negligent.

[43]        
However in Lavigne and McEvoy the driver did nothing to
precipitate the passenger’s interference with the driver’s control of the
vehicle.  By contrast, in this case I find that Ms. Sikora invited Mr. Brown
to feel the steering wheel in circumstances where she knew or ought to have known
this could be dangerous, due to the condition of the road and her vehicle’s
steering, and the inherently unpredictable nature of the consequences of Mr. Brown’s
holding of the steering wheel.

[44]        
Other authorities support the obvious proposition that a passenger who
grabs the steering wheel causing the driver to lose control is responsible for
the consequences: Paulus v. Robinson (1991), 60 B.C.L.R. (2d) 116 (B.C.C.A.)
(quoting in full the oral decision at trial of Oppal J.); Chellew v.
Melanson, [1994] B.C.J. No. 2257.

[45]        
I find that Ms. Sikora and Mr. Brown are equally at fault for
causing the accident.  As a result it is not strictly necessary to apply
s. 1 of the Negligence Act, R.S.B.C. 1996, c. 333, which
provides that where the fault of two or more persons causes damage or loss to
one or more of them, liability must be apportioned equally if having regard to
all the circumstances of the case it is not possible to establish different
degrees of fault.

IV.           
Assessment of Damages: Ms. Sikora’s Claims

A.             
Background

[46]        
Ms. Sikora claims general damages for non-pecuniary loss, past loss
of income, and some minor special damages.

[47]        
As noted, at the time of the accident Ms. Sikora was 43 years of
age, and working as a store clerk for the B.C. Liquor Distribution Branch.  She
was healthy.  She had been a patient of Dr. Arnold since 1990.

[48]        
When she first saw Dr. Arnold a few days post-accident, on December
18, she complained of neck pain extending into both shoulders, constant
headaches, sore ribs, right hip pain extending to her groin and thigh, and
right ankle soreness.

[49]        
Examination and other diagnostic tests were conducted over the next few
weeks. Dr. Arnold diagnosed:

1.     facial
bruising;

2.     soft
tissue injuries to her neck, upper back, and lower back, which resolved fairly
early on during the period of follow up;

3.     a fracture
of the acetabulum of the right hip;

4.     a fracture
of the talus bone of the right ankle; and

5.     a fracture
of the navicular bone of the right foot.

[50]        
Dr. Arnold noted that she had no prior musculoskeletal concerns of
significance.

[51]        
Ms. Sikora also testified to facial lacerations.

[52]        
By January 15, 2003, about a month post-accident, she was using a
walking boot, but could not weight bear on her right leg. By April 24 she was
able to weight bear on her right foot, with pain.  She felt that in overall
terms she was about 50 percent.  By November 20, 2003 (approximately one year
post accident), she was swimming once weekly, and walking up to 45 minutes
daily.  Discomfort continued in her right hip and right foot.  She rated her
overall improvement at 75 to 80 percent. She was referred to a work
conditioning program.  She completed the work conditioning program March 11,
2004 and commenced work April 4, 2004, about 16.5 months after the accident.
For one or two months she worked limited hours.

[53]        
 She then worked full time for the LDB until she left that employment in
mid-2010. Dr. Arnold described her work as a liquor store clerk as “fairly
physically demanding”.  In 2005 she was promoted within the LDB and became a
regional trainer, with the result that her work became less physical in nature.

[54]        
Since 2010 she has resided in Cancun, Mexico, where she works full-time at
a resort selling time share vacation residences.

[55]        
She still suffers from occasional neck and back pain which she
attributes to the accident injuries.  She gave very limited evidence as to the practical
consequences of her injuries.  She testified that her injuries interfered with
activities such as skiing, golf, swimming, jogging, tennis, and skating.  She
fears re-injuring herself.

B.             
Medical Reports and Evidence

[56]        
Dr. Arnold last reviewed the status of her injuries in March 2005,
at which time she had residual injuries to her neck, right hip, and right
ankle, but she was, overall, ninety-five percent recovered, by her estimation,
and was involved in all activities of daily living.

[57]        
In his July 12, 2009 report, Dr. Arnold relates concerns that she
is at risk for development of arthritis in the right hip, and also possibly the
right ankle.  Such consequences might not manifest for a further five or ten
years, or longer.  Severe hip arthritis could lead to hip replacement surgery,
which would not typically be undertaken until the patient is over 60 years of
age. There is no joint replacement option for ankle arthritis.

[58]        
On April 13, 2013, Ms. Sikora saw a rheumatologist, Dr. John
P. Wade, at the request of her counsel, for medical-legal purposes.  He noted
that the bone injuries she sustained were significant.  The fractures were
undisplaced (that is, the bones were not out of position) and were treated
non-operatively.  She reported ongoing complaints of variable mid back pain,
right ankle pain and variable right knee pain.  She self-assessed her overall
level of improvement at 90 percent.  Her main complaints were of right knee
pain, and mid back pain.

[59]        
In Dr. Wade’s opinion, she is at low risk of requiring surgery to
her right ankle and low risk of developing post traumatic degenerative
arthritis in her hip.  He suggests possible limitations from high impact activities
such as tennis or running, but no restrictions for ordinary daily activities or
walking.

[60]        
She saw an orthopaedic surgeon, Dr. Alastair Younger, on April 20,
2013, for purposes of a medical-legal report, at the request of her counsel.  Dr. Younger
specializes in foot and ankle injuries.

[61]        
Ms. Sikora complained of ongoing discomfort in her right hip and
groin, and right foot.  She complained of pain in her heel area and that her
ankle was always swollen.  She reported that her walking or standing tolerance
was 30 minutes, and some unspecified interference with her recreational and
employment activities.  He described her current level of disability as
minimal.  She would be able to work at the LDB job but in a limited capacity.

[62]        
Dr. Younger states that she may require hip replacement in future
as a result of degenerative changes to her hip.  No degree of likelihood or
time frame is mentioned.  Possible fusion of her ankle is also mentioned, with
a lower likelihood than that of hip surgery.  MRI examination showed “some”
early arthritic change in her hip, and some tendinopathy of her gluteus medius
minimus, and a tendon tear in her right ankle.  Dr. Younger states that
her hip pain may gradually worsen.  She could possibly become a candidate for
surgical exploration and repair of her ankle tendons.

[63]        
In summary, Ms. Sikora suffered from hip and ankle fractures which
were undisplaced and were treated non-operatively.  She had facial lacerations
and bruising which healed uneventfully.  Her bony injuries were significant. 
She was not able to weight bear on her right leg for a prolonged period of
time.  She suffered from soft tissue injuries to her neck and back, which
continue to cause some ongoing discomfort at trial, 11 years after the
accident.  She has some soft tissue injuries to her hip and ankle.  She has
knee pain.  She has developed early degenerative changes to her hip.  Her hip
may gradually worsen.  Although she is at risk for requiring hip or ankle
surgery, the likelihood is low, especially with respect to her ankle.

[64]        
She gradually recovered from her injuries such that she was able to
return part time to her previous work as a liquor store clerk 16.5 months post-accident,
and returned to full-time work one or two months later.  Currently her ongoing
level of disability is minimal.  She considers herself 90 or 95 percent
recovered from her injuries.

[65]        
I considered her evidence as to her injuries to be fair and not
exaggerated.

C.             
Assessment of Non-Pecuniary Damages

[66]        
Ms. Sikora claims non-pecuniary general damages of $90,000 to
$100,000.

[67]        
Mr. Brown contends that Ms. Sikora did not sustain a fracture
of the acetabulum in the accident.  The evidence that she did is overwhelming. 
Mr. Brown submits that injuries were completely resolved within a few
months of the accident, and on that basis submits that non-pecuniary loss of
about $22,000 based upon an ankle injury would be appropriate.

[68]        
I recently discussed the principles of assessing a claim for general
damages for non-pecuniary loss in Gillam v. Wiebe, 2013 BCSC 565 at paras. 68-71,
87.  I adopt those remarks here.

[69]        
For guidance, Ms. Sikora relies upon: Holder v. Maclean et
al, 2001 BCSC 1474 ($75,000; $90,443 in present dollars); Bedwell v.
McGill and Currie, 2006 BCSC 369 ($85,000; $93,787 in present
dollars); and Bjornson v. Shaw, 2009 BCSC 758 ($65,000; $67,947 in
present dollars).

[70]        
In Holder, the 61-year-old plaintiff suffered injuries to his
neck, shoulders, left knee and left ankle.  The left ankle injury remained on-going
four years post-accident.  The ankle could continue to deteriorate, which might
require surgery in the future.  If surgery were required, the plaintiff would
be immobilized for eight to twelve weeks and permanently lose mobility in the ankle.
The plaintiff also suffered from on-going headaches and other pain which led
to weight gain and affected his mood and ability to concentrate.  In Bjornson,
the plaintiff suffered from soft tissue injuries to her hip, back, left leg and
neck, as well as pain from her hip, knee and ankle, five years post-accident,
with no further improvement likely.

[71]        
I have also considered: Westfrield v. Lindstrom, 2013 BCSC 360; Savoie
v. Williams, [2013] B.C.J. No. 2496; Gormick v. Amenta, 2013
BCSC 1128; Majchrzak v. Avery, 2013 BCSC 1626.

[72]        
Upon review of the authorities and considering the relevant factors and
considerations, in my view the appropriate amount of damages for non-pecuniary
loss in this case is $80,000.

D.             
Past Wage Loss

[73]        
As a result of her injuries, Ms. Sikora lost gross income of $48,042
and $1,537.51 in vacation credits.  Net of source deductions her loss is
$39,397.  There is no dispute by Mr. Brown as to the calculation of these
amounts.  Counsel made no specific submission as to whether Mr. Brown
would be entitled to a reduction for source deductions, as ICBC has refused
coverage to him.  I see no reason why s. 98 of the Insurance (Vehicle)
Act, R.S.B.C. 1996, c. 231, would not be applicable to limit her
claims to her net income loss.  Therefore the award for past income loss is $39,397.

E.             
Special Damages

[74]        
Ms. Sikora claims out of pocket expense of $221.55.  In my view, these
claims are proven.

F.             
Summary and Conclusion: Ms. Sikora’s Damages

[75]        
Damages are assessed as follows:

1.     non-pecuniary
damages: $80,000;

2.     past net
wage loss: $39,397; and

3.     special
damages: $221.55.

[76]        
Given my findings on liability, Ms. Sikora is of course entitled to
recover from Mr. Brown 50 percent of the amounts I have awarded.

V.             
Assessment of Damages: Mr. Brown’s Claims

[77]        
Mr. Brown claims damages for non-pecuniary loss, past loss of
income, and special damages.  He argues that he was unable to work due to his
accident injuries from the accident date of December 14, 2002 until mid-August,
2003, with the exception of two partial days of work in December 2002,
immediately following the accident, and two complete weeks plus a few other
days in March 2003.  Although Mr. Brown contends that his injuries cause
some degree of pain and loss of function affecting his work, no wage loss is
claimed following his return to work in August, 2003.

[78]        
Mr. Brown adduced no medical evidence regarding his injuries. 
Other than portions of some clinical records from his family doctor or medical
clinics that were put to him in cross-examination, there is no medical evidence
of any kind relating to his injuries in evidence.  Thus, I do not have the
benefit of any professional diagnosis or prognosis, and very little in the way
of medical records to assist me with assessing the damages arising from his
injuries.

[79]        
His claims therefore rest very largely on his own credibility and to a
lesser extent that of the collateral witnesses who testified on his behalf.

[80]        
Mr. Brown testified that his immediate injuries were a head injury,
cuts and bruises to his face and neck (caused presumably by his face and head
striking the glass windshield), and bruises and pain to his right shoulder,
left elbow, and right leg.  His right knee bothered him for “a couple of
years”.  The major continuing injuries Mr. Brown complains of are to his
right shoulder, left elbow, and his back.

[81]        
He argues that damages should be assessed as follows:

1.     non-pecuniary
damages of $130,000;

2.     wage loss
of $32,201.59 (gross, before deductions for Employment Insurance benefits and
ICBC TTD payments); and

3.     special
damages of $804.

[82]        
On behalf of Ms. Sikora the defence contends that Mr. Brown’s
complaints of injury are not credible.  The defence concedes that Mr. Brown
suffered some soft tissue injuries to his neck, back and right shoulder.  The
defence did not deny that he suffered some short term facial injuries.  The
defence submits that an appropriate award of non-pecuniary loss would be in the
range of $22,000 to $35,000.  The defence contests any claim for wage loss, or
for most of the special damages claimed.

A.             
Background

[83]        
As noted, at the time of the accident Mr. Brown was 37 years of age.
He left school after completing Grade 11.  He resided in Surrey with his wife
and three children.  In 2006 a fourth child was born.  He has worked as a truck
driver or heavy equipment operator since he was a youth.  He began working as
an excavator operator for Bray Enterprises Ltd. in or about 1985, at the age of
20.  He continued to work as a heavy equipment operator for the same employer post-accident,
although at some point since the accident he became a foreman.  When this
change occurred and how it affected his work was largely unexplained in the
evidence.  In his work he operates an excavator or other equipment such as a
backhoe, roller or bulldozer.

[84]        
At the time of the accident Mr. Brown was on a lay-off from his
work at Bray Enterprises.  He had been laid off since October 25, 2002, about
seven weeks pre-accident.  His work is somewhat seasonal, and as a result
seasonal lay-offs and claims of employment insurance are common.  He worked for
two partial days in December shortly after the accident, but then did not work
again until early March 2003, about 2.5 months post-accident.  He worked for
slightly more than one half of full time hours for one month, then was off work
again from late-March 2003 to mid-August 2003, when he returned to work full
time.  No further work was lost due to injuries following August 2003.  Thus,
he claims his work was interrupted for a total of about eight months.

[85]        
In February or March 2003 Mr. and Mrs. Brown took possession
of a nine to ten acre property on 50^th Avenue and 232^nd
Street, Surrey.  Mr. Brown moved a house onto the property in or about
April 2003.  Extensive work was required to prepare the site and make the house
usable as the family residence, including clearing a portion of the land, installation
of utilities, building foundations, fencing and landscaping.  Mr. Brown
acted as his own general contractor for the project.  For a few months
beginning in June 2003 the family lived in a trailer on the property until the
house was ready for occupation in late 2003.  By the time he returned to work
in August 2003, the project was approximately 50 percent completed.

[86]        
Mr. Brown was playing hockey on a regular basis at the time of the
accident. He had played minor hockey to the Juvenile “A” level in Cloverdale,
then played adult men’s hockey after that.  Following the accident he was
unable to play hockey for about three months, but was able to resume playing in
March or April 2003, just before the end of the season.  He played the full
next season, beginning in September 2003 and carrying on until March or April
2004.  He played the same amount as he had prior to the accident.  He claims
that his accident injuries have reduced the competitive level of hockey is able
to play.

[87]        
ICBC obtained extensive surveillance video evidence of Mr. Brown installing
fencing on his property on July 29, 2003, and playing two hockey games with his
men’s league team on March 16 and March 18, 2005.  The video evidence was shown
in court in its entirety, except for a minor segment that was lost.

B.             
Assessment of Non-Pecuniary Damages

[88]        
In general Mr. Brown was not a reliable or credible witness with
respect to his injuries and their consequences.  His memory was often vague, or
entirely lacking, or incorrect.  He repeatedly had to be reminded of his
evidence given on examination for discovery in January 2006, some three years
post-accident and almost eight years before trial in November and December
2013.  His evidence at trial was repeatedly contradicted by his evidence at
examination for discovery.  It is understandable that almost 11 years post-accident
his memory would be poor in some respects at least, but I formed the view that
many of his memory lapses and errors could not be attributed only to that.  I
formed the view that his evidence on his examination for discovery was more
accurate than his evidence at trial, both because it was much more current or
contemporaneous, and because in addition his evidence at trial was affected by
considerations relating to his pecuniary interests.

[89]        
The evidence of Mr. Brown’s collateral witnesses (his wife, his
daughter, and a friend), was to the effect that Mr. Brown is a
non-complainer, or in other words he is stoical.  In my view this tendency is
reflected somewhat in his evidence on examination for discovery, but not in his
evidence at trial.

[90]        
There was a great deal of vague and unreliable evidence at trial
concerning the work involved with the property in 2003 and the extent to which Mr. Brown
was or was not able to perform the work himself.  In consideration of all of
the evidence, in my view Mr. Brown tended to minimize the amount of work
he was able to do on the property in 2003.

[91]        
On his examination for discovery he was asked about how the accident
affected his ability to play hockey.  In responding he referred only to his
right shoulder injury affecting the speed and accuracy of his shot.  He did not
mention his left elbow or back injuries or a general reduction in competitive
ability which was a feature of his evidence at trial.

[92]        
The video evidence of Mr. Brown working on his property was
obtained July 29, 2003, at a time when Mr. Brown states that he was
incapable of working due to his accident injuries.  The video surveillance
lasts about two hours. Mr. Brown is seen constructing a fence made of
wooden posts and wire mesh with the assistance of his father in law.  He is
depicted engaging in a variety of moderately strenuous physical activities such
as lifting and installing the posts, unrolling the wire, hammering nails,
trimming the posts with a power saw, pushing a wheelbarrow, lifting a portable
generator, and driving an excavator.  There is no obvious sign of any
significant limitation or restriction on his activities.

[93]        
A great deal of work was required to make the house and property ready
for habitation, and Mr. Brown was under time pressure as the family was
living in the trailer, and Mr. Brown had to complete the work before the winter. 
He acted as his own general contractor, hiring a few workers or subcontractors
as needed.  In his second statement to ICBC made July 9, 2003, he indicates
that he was off work due to his shoulder injury (right shoulder, I infer) from
approximately late-March 2003, but has been able to work about two hours a day
or 15 hours per week on his property.

[94]        
The hockey game videos taken March 16 and 18, 2005, show Mr. Brown
playing a complete game on both occasions.  Mr. Brown’s intensity level is
low, but the pace of the game is quite modest and Mr. Brown’s competitive
level and skill level is in keeping with the other players.  There is no
apparent sign of distress or limitation of function.  My impression is that the
video shows Mr. Brown skating, puckhandling, checking and shooting more or
less normally.  Mr. Brown is shown taking a full slap shot in the second
game.  He is right handed and shoots right, so the slap shot involves a full
rapid and strenuous use of his right shoulder.

[95]        
On his examination for discovery Mr. Brown acknowledged that the
range of motion of his right shoulder was full, and that he was playing as much
hockey as he had pre-accident.

[96]        
As noted, at trial Mr. Brown contends that following the accident
he could no longer play the calibre of men’s recreational hockey that he had previously
and that the decline in his performance was caused by the accident injuries,
primarily his right shoulder, left elbow and back injuries.  I was not
persuaded on the whole of the evidence that the accident injuries had this
consequence.  I do not accept that his ability to play hockey was much affected
by his injuries after he returned to regular play a few months after the
accident.  Mr. Brown’s evidence concerning his hockey playing history was
vague.  Corroborative evidence regarding the reduction in his skill level given
by a close friend, Mr. Tracey Smith, was not reliable or persuasive, nor
was the evidence on this topic from Mr. Brown’s wife.

[97]        
Mr. Smith testified that he assisted Mr. Brown with the work
involved in moving the house, which he testified occurred two or three months
prior to the accident.  He gave quite extensive evidence concerning the
physical work that he saw Mr. Brown do on the property prior to the
accident, and testified that he was doing less work on the property after the
accident. In giving this evidence Mr. Smith was mistaken as to when Mr. Brown
acquired the property and started working on it, which was in fact two or three
months post-accident.  Thus his evidence concerning what Mr. Brown was
able or unable to do on the property relative to the accident date was most
unhelpful to Mr. Brown’s case and unreliable.  Mr. Smith also testified
that Mr. Brown is no longer the hockey player he was in the past.  However,
Mr. Smith testified that Mr. Brown did not play hockey for several
years post-accident, but this was contradicted by Mr. Brown, who testified
that he returned to play at the end of the season, and played every season
since.  Mr. Smith testified that due to knee surgery he could not play for
two years but he played together with Mr. Brown in the 2007 season.  In my
view Mr. Smith’s evidence was consistent with an impression on his part
that Mr. Brown’s hockey playing ability in recent years is much lower than
it was in the distant past, but the evidence does not support the contention
that Mr. Brown’s reduction in ability coincided with the accident injuries
or was caused by them.

[98]        
As noted, Mr. Brown was 37 year of age when the accident occurred.  He
would have been 40 when the hockey videos were obtained.  He is a large man who
smokes.  In my view the limited evidence available supports the view that Mr. Brown’s
decline in skill and ability is very largely attributable to typical effects of
aging and general physical decline including loss of conditioning, and has
little to do with the accident injuries except to a limited degree in respect
of his right shoulder.

[99]        
In relation to his hockey ability, I accept only that Mr. Brown
still suffers from some lingering effects of a right shoulder injury, which has
a slight effect on his hockey playing ability.  That is, as he said on
examination for discovery, the injury affects the speed and accuracy of his
shot, and he shoots less frequently.

[100]     On his
examination for discovery Mr. Brown testified that his injuries were
starting to settle down roughly one year post-accident.

[101]     At trial Mr. Brown
testified that he undertook physiotherapy treatments for eight or nine months
post-accident.  However on his examination for discovery he testified that it
was five or six months, not eight or nine.  I accept that Mr. Brown had
physiotherapy for his shoulder for several months but that he exaggerated this
somewhat at trial.

[102]     On
examination for discovery he testified that his back injury was 70 to 80
percent better by about one year post-accident.  He had chiropractic treatment post-accident
for about two months, a total of 10 or 11 treatments.  However Mr. Brown
had some prior back troubles, as he had been seeing a chiropractor regularly
prior to the accident, for many years.  At trial Mr. Brown testified that
his back still bothers him episodically and he occasionally obtains
chiropractic treatment for it when it bothers him.  He attributed his ongoing
back troubles partly to the continuing effects of the accident, and partly to
unrelated factors.  I am not persuaded that Mr. Brown suffered significantly
from back pain caused by the accident beyond about one year post-accident.

[103]     Eleven
years have passed since the accident.  Unsurprisingly Mr. Brown has
sustained several subsequent injuries.  Some have occurred in hockey, others in
and around the home or at work.  He suffered a laceration to his left knee in
March 2003 as a result of an accident with a chainsaw.  In March 2005 during a
hockey game he hit his head on the boards causing neck and head pain.  Also in
2005 he fell through an open trap door in the house, falling into the crawl
space, and fracturing his ribs.  In January 2007 he injured his right knee in
hockey.  In November 2009, he injured one of his shoulders in hockey.  Most
likely he injured his left shoulder although the evidence is conflicting.  He
twisted his left knee at work in October 2010.  He testified that all of these
injuries were temporary only.

[104]     At trial Mr. Brown
testified that he has neck pain occasionally.  He was unable to state whether
this would be related to the accident or not.  There is of course no medical
evidence.  I find that it is unrelated.

[105]     Mr. Brown
testified that his left elbow is occasionally bothersome.  He massages it.  It
does not affect his ordinary daily activities.  On his examination for
discovery he testified that his left arm was swollen and bruised for about two
weeks, but he had no problems with his left arm after that.  I find that Mr. Brown’s
left elbow injury was resolved within a few weeks or months of the accident and
that any problems that Mr. Brown had after that or is still having with
his left elbow are unrelated to the accident.

[106]     At trial Mr. Brown
complained of occasional dizziness.  On his behalf Mrs. Brown testified
that he has become forgetful, and has headaches, and that his mood is affected.
On examination for discovery he admitted through counsel that there was no
“head injury claim” which I interpret to mean a claim for ongoing injury to the
head of some sort, as distinct from the evidence of cuts, lacerations and
contusions.  I find that there is no evidence of any ongoing head injury past
the first few weeks post-accident.  I am not persuaded that there are any proven
psychological consequences.

[107]     On
examination for discovery Mr. Brown testified that his knees were “banged
pretty good” in the accident but the only effect was bruising, which resolved
within a few months.  I accept this evidence.

[108]     Mr. Brown’s
daughter testified that although she was only seven when the accident occurred,
Mr. Brown can no longer throw a ball very well and he appears to be in
pain when he does so.  She testified to certain other limitations of function,
such as with lifting and carrying abilities, and a reduction in some of his
recreational activities with the family such as on camping trips. I accept that
Mr. Brown’s ability to throw a ball has been affected by his shoulder
injury.  In my view the other current limitations of function not related to
the use of his right shoulder are unrelated to the accident.

[109]     I did not
consider Mrs. Brown’s testimony about Mr. Brown’s hockey to be
reliable.  She testified that he did not play at all in the season following
the accident (2003 to 2004) but I find that he played that whole season, as he
testified on examination for discovery and confirmed at trial.  She testified
that the work he did on the property was very limited.  She testified that in a
number of respects Mr. Brown is less physically strong and capable than he
was prior to the accident.

[110]     Given the
extraordinary passage of time involved, I think it is very difficult for Mrs. Brown
to fairly and accurately compare Mr. Brown’s pre- and post-accident
physical abilities.  She was unaware that any accident had occurred until about
two years post-accident when she read the Writ of Summons and extracted some
information from Mr. Brown.  I formed the view that she was likely
comparing Mr. Brown’s current abilities and condition with those of long
ago.  I also formed the view that her evidence was quite tightly scripted in an
effort to overcome its significant inherent limitations.  In the circumstances,
where Mr. Brown is facing personal liability and his claims have a
defensive aspect, her pecuniary interest in the outcome is high.  In all of the
circumstances I am not able to place much weight on her testimony.

[111]     I find
that Mr. Brown suffered from the following injuries in the accident:

1.     cuts,
lacerations and bruises to his face and neck, which resolved normally within a
few weeks;

2.     soft
tissue type injuries to his knees, shoulders, left elbow, and back, which all
resolved within about one year of the accident; and

3.     injury to
his right shoulder, which continues to cause regular pain and discomfort, and
some modest limitation of function.

[112]     The
excavator is controlled by means of a joystick requiring minimal physical
effort. Mr. Brown testified he has no trouble operating the heavy
equipment, although he feels pain at the end of the day.  I find that Mr. Brown’s
injuries affected his ability to work as an excavator operator to some extent until
he returned to work in mid-August, 2003.  Following that there was no loss of
income.  There is no claim for loss of earning capacity, past or future, other
than the claim for actual wage loss prior to mid-August 2003.

[113]     I heard
evidence from Mr. Brown and the collateral witnesses on his behalf about
the extent to which Mr. Brown’s domestic and recreational activities were
affected by his accident injuries.  The evidence related to matter such as yard
work, household chores, playing with his younger children, and recreational
activities while camping or on vacation.  Mr. Brown’s own evidence about
these activities was that his restrictions were minimal.  Once again, the long
passage of time puts into question whether observed changes are accident
related or not.  On all of the evidence, I find that Mr. Brown’s injuries
affected his ordinary activities and enjoyment of life to a significant degree
for a maximum of about one year post-accident.  Following that, his shoulder
injury has caused minimal loss of function and interference with enjoyment of
life.

C.             
Case Authorities: Non-Pecuniary Damages

[114]     Once
again, I refer to the general principles underlying an award of non-pecuniary
damages which I recently summarized in Gillam v. Wiebe, 2013 BCSC 565 at
paras. 68-71, 87.

[115]     As noted,
although Mr. Brown may be somewhat stoical by nature, this characteristic
was not reflected in his evidence at trial.

[116]     Mr. Brown
submits that an award of $130,000 for non-pecuniary loss would be appropriate.
As support for that submission his counsel cites Baker v. Clark, 2013
BCSC 2044 ($30,000), Graydon v. Harris, 2013 BCSC 182 ($80,000 before
reductions), Courtenay v. Hutchinson, 2012 BCSC 188 ($70,000), and Miller
v. Lawlor, 2012 BCSC 387 ($65,000), and submits that Mr. Brown’s
injuries have lasted much longer than in these cases.  In all of these cases,
the plaintiffs’ daily and leisure activities were impaired by, among other
things, permanent soft tissue injuries that resulted in on-going neck pain,
back pain and headaches.  In the latter three cases, the pain suffered by the
plaintiff was more severe than that suffered by Mr. Brown.  Therefore the
cases cited by the plaintiff are not particularly helpful in determining non-pecuniary
damages in this case.

[117]     The
authorities submitted by the defence are a more useful guide.  In Chan v.
Kao, 2009 BCSC 626, the plaintiff was awarded $22,000 in
non-pecuniary damages for on-going shoulder injuries as a result of a motor vehicle
accident.  A higher award is appropriate here to account for the additional
injuries Mr. Brown sustained. In Lo v. Chow, 2009 BCSC 817, the
plaintiff’s injuries had largely healed within a short period after the
accident but the plaintiff experienced on-going but relatively minor and
intermittent soft tissue pain.  The plaintiff was awarded $35,000 in
non-pecuniary damages. In McClaren v. Kucharek, 2008 BCSC 673, the
plaintiff recovered from most of his injuries within a year and a half of the
accident, but suffered on-going, permanent shoulder pain that was triggered by certain
types of exercise.  $35,000 (approximately $38,000 in present dollars) was
awarded for non-pecuniary damages.

[118]     I conclude
that an award of $38,000 for non-pecuniary damages is appropriate in this case.

D.             
Past Wage Loss

[119]     Mr. Brown
claims wage loss of $32,201.59 for the period December 16, 2002 to August 14,
2003, based upon lost pay at $26.33 per hour, including vacation pay of 12
percent, and net of actual earnings in December 2002 (two partial days) and
March 2003 (two full weeks and three other days).  The defence contends that
the claim should be denied entirely due to the lack of medical corroboration,
or corroboration from his employer or a co-worker, lack of credibility generally,
and the defence contention that Mr. Brown was capable of working but chose
to take time to work on his property.

[120]     As noted, Mr. Brown
admitted in his second ICBC statement made July 9, 2003 that he was capable of
working on his property for about 15 hours per week.  He acknowledges having
worked on the property while off work.  The video shows him engaging in
somewhat strenuous work for a fairly prolonged period of time.  His own work in
operating equipment is not very strenuous physically.

[121]     He was
laid off at the time of the accident, but led no evidence as to when the layoff
would have ended.  This puts into question the claimed wage loss for December
2002, and January and February of 2003.  The amount of hourly loss put forward
includes vacation pay, but this would normally be taken as vacation, not as
pay, and is therefore likely to be somewhat inflated.  A better measure is proportion
of annualized earnings.

[122]     I accept
that the nature of Mr. Brown’s soft tissue injuries and his right shoulder
injury would have necessitated some time off work.

[123]     Doing the
best I can with unsatisfactory evidence, in my view a fair and reasonable award
for wage loss would reflect loss for four months, in total.  Based upon pay of
$23.51 per hour and 40 hour weeks, a year’s pay would be $48,900, or $4075 per
month.  Thus, I assess past gross loss of wages at $16,300.  Mr. Brown
acknowledges that the award must be reduced to reflect EI medical benefits and
ICBC TTD benefits received.  Counsel suggested that these calculations could be
worked out by counsel following the judgment, thus I will allow the parties to
determine the appropriate set-offs against this amount, with liberty to apply
if necessary.

E.             
Special Damages

[124]     Mrs. Brown
testified that expenses have been incurred over the years for epsom bath salts
and pain medications such as Advil and Tylenol 3.  No receipts were kept.  She
estimated these expenses at about $804 over the course of 11 years.  $759 of
this was for bath salts and Advil.  I accept that some over the counter pain
medication expense was necessarily and reasonably incurred as a result of the
accident injuries.  Some of the expenses would be incurred in relation to other
injuries.  It is difficult to properly evaluate the claim without receipts.  $250
is a fair and reasonable assessment of the proven expense.

F.             
Summary and Conclusions: Mr. Brown’s Damages

[125]     Damages
are assessed as follows:

1.     non-pecuniary
damages: $38,000;

2.     past gross
wage loss, subject to EI and TTD deductions: $16,300; and

3.     special
damages: $250.

[126]     In accordance
with my findings on liability Mr. Brown is entitled to recover 50 percent of
the amounts awarded from Ms. Sikora.

VI.           
Costs

[127]    
Success has been divided. Unless there are matters of which I am
unaware, neither party is entitled to costs.  The parties have liberty to apply
with respect to costs within 60 days of the date of these reasons.

“Verhoeven J.”