IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Hodgson v. Saeed, |
| 2015 BCSC 147 |
Date: 20150203
Docket: M125047
Registry:
Vancouver
Between:
Bryan Hodgson
Plaintiff
And
Muhammad Saeed
Defendant
Before:
The Honourable Madam Justice Maisonville
Reasons for Judgment
Counsel for Plaintiff: | J.F. Chouinard |
Counsel for Defendant: | R.G. Dempsey |
Place and Date of Trial: | Vancouver, B.C. December 15-19, |
Place and Date of Judgment: | Vancouver, B.C. February 3, 2015 |
I.
Background
[1]
The plaintiff Bryan Hodgson was in a motor vehicle accident on September 23,
2010. The plaintiff was 23 years of age at the time of the accident. The plaintiff
is a heavy equipment operator and has worked at a number of different jobs over
the past several years.
[2]
He has lived with his girlfriend, Ashley McKenzie, on and off, for the
past three years and they have a son together.
[3]
The weather on the day of the accident was rainy and the roads were wet.
Visibility however was fine. The accident occurred in the middle of the day.
[4]
The plaintiff was travelling southbound on 160th Street in
Surrey, British Columbia. At the intersection of 160th Street at
Croydon Drive, there are two southbound lanes. The plaintiff was in the lane
closest to the center of the road. He had just passed through the intersection
at 24th Avenue. He believes he was travelling at 60 kilometres per hour in a
50 kilometre per hour speed zone. There is a stop sign on Croydon Drive
where vehicles are to stop before entering onto 160th Street. The plaintiff
was driving southbound but a vehicle driven by the defendant Muhammad Saeed
came out suddenly from the stop sign. The plaintiff could not stop, inevitably
and immediately colliding with the front part of the defendants vehicle with
such force that the airbags deployed. The whole front end of the defendants
car hope was caved in.
[5]
Immediately after the accident, the plaintiff noticed a burning
sensation on the top of his head where he had sustained an abrasion. This is
believed to have occurred from the striking airbag raising him so that his head
came into contact with the roof. He also felt pain from where the airbag had
hit him. Shane Hakeem, one of the individuals who witnessed the accident, approached
the plaintiff and provided him with his contact information. As well, the
defendant testified to the accident.
II.
The Issues
[6]
The issues before the Court for determination are:
(1) liability for the accident;
(2) non-pecuniary damages;
(3) damages for loss of income,
both past and future; and
(4) causation
for the plaintiffs injuries and loss of income.
III.
Facts
A.
Prior to the Accident
[7]
At the time of trial, Mr. Hodgson was 27-years of age.
[8]
A number of individuals testified as to what the plaintiff was like
prior to the accident.
[9]
The plaintiff had always been independent. His mother testified this
was due to him coping with the loss of his father at a young age. He spent
part of his high school in Alberta, but afterward returned to British Columbia.
[10]
Ms. Hodgson testified that prior to the accident, her son was a
jokester, a prankster, the life of the party, happy, motivated and active.
Physically he enjoyed snowboarding, sea-dooing in the summer, and that he
enjoyed learning how to do mixed martial arts fighting, particularly with his
brother. She said that he enjoyed doing anything physical. He was in good
shape and he was healthy.
[11]
After the accident, she testified that her sons sense of humour was
lessened. She did not want to say that he was depressed, but she believed he
could have been. His sense of motivation was not the same and he had to lie
around quite a bit.
[12]
At the time of the accident, Mr. Hodgson was 24 years of age. He
had been living with his mother and his stepfather, and was working for his
stepfathers contracting company, E.J. Jones Contracting. The company was in a
difficult financial situation at the time, but Mr. Hodgson worked for
months without pay out of loyalty to his stepfather. It turned out to be a good
opportunity for Mr. Hodgson in that he learned how to use heavy equipment and
today he is employed doing what he learned at that time.
[13]
Ms. Hodgson was aware of the difficulties of her husbands company
and despite the fact that many people had told the couple they should have
declared bankruptcy, they have not done so, and are slowly paying back the
monies owing by the company. Her son would run the digging machines,
excavators and Bobcats. He was also working as a labourer.
[14]
The plaintiffs next work was when he started working for Integrated
Contractors Limited, a subsidiary of IDL Projects Inc. (IDL), in Fort Nelson
as a labourer. In May 2011, he started driving a rock truck. This is a
very difficult job, as the terrain is rough, and it would increase and worsen
his pain. He continued with that company through to August 2011 at which
time he asked to be laid off because he found it too difficult to work in the
rock truck as it was too aggravating to his pain.
[15]
His supervisor in Fort Nelson was Keith Evans, who was the father of his
friend Kaitlin, who also testified at the trial.
[16]
Following his work in Fort Nelson moved to Cold Lake, Alberta, where he
once again worked for IDL. He worked from May 2011 to December 2012 when
he was laid off. This is typical for the industry as winter conditions make it
impossible to work. The plaintiff started again in January 30, 2013,
working through to July 26, 2013. In September 2013, he moved to
Terrace and in October and November, he worked on the Spirit Pipeline Ltd.
There he drove the excavator, the rock truck and a skid-steer loader, which is
a small rigid frame, engine-powered machine with lift arms used to attach a
wide variety of labour-saving tools or attachments.
[17]
In 2014, commencing in February, he was working for IDL at Cold Lake.
In July 2014, he started work at Fort St. John for Tracker
Contracting Ltd. to early September 2014; then he briefly worked for Jacob
Brothers Construction in Saskatchewan. His earnings were as follows:
2006: $3,561;
2007: $13,540;
2008: $33,420;
2009: $24,784;
2010: EI benefits
$12,963;
2011: $25,874;
2012: $72,458;
2013: $96,501.31
[18]
At IDL, his rate of paid was $33.09/hr and for overtime it was $49.63.
For Spirit Pipelines, his rate was $34/hr and overtime was $52/hr. Travel
would be $34/hr. For Tracker Contracting, his rate was $32/hr and overtime was
$48/hr and double time was $64/hr.
[19]
At present, he operates an excavator, digging canals for pipelines. Recently
he has been working in Saskatchewan for $34 an hour plus his truck expenses and
his live-out allowance of $150. He works 12-hour days and often a 34-hour week
plus overtime after eight hours a day. After 40 straight-time hours, he earns time-and-a-half.
[20]
Mr. Hodgson frequently works one month straight or sometimes two
weeks in a row straight without taking a break. His mail is received at the
nearest centre, which is Etonia, Saskatchewan.
B.
The Accident
[21]
Mr. Hodgson testified that he was driving prudently at the time of
the accident.
[22]
At the accident, he could not stop his vehicle so he t-boned the
defendants car. The whole front of the defendants car caved in. As noted,
the plaintiff ended up with a burn on the top of his head and he had facial
pain for about ten days due to the air bags deployment.
C.
Following the Accident
1.
Testimony of Mr. Hodgson
[23]
Immediately following the accident, Mr. Hodgson suffered headaches
and neck aches. His ankle was sore. He had chest pain. The burn on his head
and face and his lower back and neck hurt.
[24]
The day following the accident, the plaintiff attended at Peace Arch
Community Medical Clinic and was seen by a physician, Dr. Dalton Chen,
whose records were reviewed by some of the experts that submitted reports to
the Court.
[25]
At the time of his testimony, he still felt stiff and sore from the
accident. He experiences pain between his shoulder blades to the middle of his
neck, and he feels soreness. He can be sore all day, depending on what he has
been doing, and which equipment, in particular, he has been operating.
However, he endeavours to live as healthy a life as possible and that includes
avoiding taking medication whenever possible. Accordingly he only takes
Tylenol, Aleve and Robaxacet.
[26]
Before the accident he would attend the gym six days a week. Now he is
only able to go three days a week and he misses his training in mixed martial
arts.
[27]
He testified that he still suffers from pain to his neck and shoulder.
His ankle injury and the abrasion to his head and the face pain from the
accident, as well as the lower back pain and the chest pain have resolved. He
still suffers from headaches and dizziness and these are aggravated by the type
of work that he does. He is conscious that his body has changed. He has gone
from 185-190 pounds to 165-170 pounds due to being unable to maintain his
muscle mass.
2.
Testimony of the Plaintiffs Mother
[28]
The plaintiffs mother, Wendy Hodgson, testified that after the
accident, the plaintiff was in pain, lying around the house, with a sore neck
and headaches. He would ask his mother to help him by giving him massages.
She saw him taking Advil. She was aware that he tried to go snowboarding after
the accident, but compared to going for day after day as he had before, he was
unable to much more than a day or half a day.
[29]
His work involves driving his equipment over rough terrain to create the
channels for the pipelines. There are no paved roads; he has to drive over
terrain, and he has to endure heavy jerking movements in the truck as it
traverses the land. This causes headaches and leads to a migraine which starts
as a dark line in front of his eyes, continues to a pounding feeling, and testifies,
it doesnt go away until he goes to sleep. He has to keep his job, however,
so he keeps going.
[30]
Since the accident, Mr. Hodgson has been having difficulty with his
hands. After 18 months, he began to get a tingling feeling in his pinky
fingers, like both of his hands were falling asleep. He also suffers from
anxiety while driving. If someone is at an intersection, stopped but signaling
they are turning, and he is going straight, he fears that the person is going
to come out into the intersection. He fears that person, who does not have the
right of way, will collide with him.
[31]
His mother has noticed his anxiety driving. She recounted one incident
in particular when they were driving along Highway 7. A car came out of a
Superstore parking lot and her son just about slammed on the brakes. She cried
out and he responded, Okay, okay it just didnt look like it was going to
stop. It scared me. She had never witnessed this sort of behaviour from him
before, and she realized that it was a consequence of his experience in the
accident.
[32]
Ms. Hodgson has noted that the birth of his child has shown her son
to be a wonderful father. She became emotional in describing the fallout from
his own fathers death and her sons manner of coping by becoming independent
and growing apart from her as a way of avoiding seeing her in pain.
3.
Testimony of Kaitlin Evans
[33]
Mr. Hodgsons friend, Kaitlin Evans, gave evidence. She has known Mr. Hodgson
for eight years, from high school. She considers him a good friend. He dated
her sister, Tess, and worked for her father, Keith, who also testified at the
trial. She and her boyfriend have vacationed with him and his partner.
[34]
Ms. Evans studies social work at University of Fraser Valley, and
she is a server at target at a restaurant in Abbotsford. She indicated that
the time she saw him in Terrace was in late 2013 when she saw him approximately
three times.
[35]
After the accident, she noticed that he was often in physical pain. He
would lie down after work. This occurred when they were living in Terrace, B.C.
She has also seen him working out and commented that he is not physically able
to do the same amount, and cant take part in his training. He has lost weight
and she knew him to be bigger and more muscular. She estimates that he has
lost 15-20 pounds in muscle from his upper body and his arms.
[36]
Respecting his driving, she notes that he asked Ashley, his partner, to
drive when his son was in the car. She felt he was also battling a bit with
depression.
4.
Testimony of Michael Heldt
[37]
The Court heard from Mike Heldt, who has known Mr. Hodgson for six
years. Mr. Heldt was in a relationship with the plaintiffs sister. They
worked together in 2014 but not before that. They had labourers together in
Cold Lake at J.B. Drivers and were roommates there, so he was able to
observe Mr. Hodgson well. The two worked together at Cold Lake. Mr. Heldt
would mostly see Mr. Hodgson after work and he would notice that he was in
pain. He knew that the plaintiff was labouring and also operating the skid-steer.
[38]
He recalled doing some snowboarding with Mr. Hodgson after the
accident, but says he could only do one to two runs and that would be it.
Before the accident, the plaintiff would be fine all day, snowboarding until
closing time. They would also fish together in places where they would hike
in. Now Mr. Hodgson does not want to go as he is in pain. Mr. Heldt
has noticed a decrease in the plaintiffs weight.
[39]
He also remarked Mr. Hodgson is no longer as outgoing as he was and
suffers from a change in energy.
5.
Keith Evans
[40]
The Court also heard from Keith Evans, who had been the plaintiffs
employer at IDL in Fort Nelson and was his former girlfriends father. Mr. Evans
invited the plaintiff to work because he felt he was a responsible individual
who would work well. Mr. Evans was immediately happy with his work. He felt
he was enthusiastic and intelligent. He could look after himself and overall
he worked very well. He worked the big machines including the rock truck and
did a good job.
[41]
Mr. Evans explained the different rates in pay and how it was
regular rate of pay until time-and-a-half after eight hours or after 40 hours in
a week pursuant to Operating Engineers Union Agreement. Saturday would be
eight hours at time-and-a-half and if it went 12 hours the last four hours
would be double time.
[42]
The plaintiff did complain that to Mr. Evans, however, of the beating
he took car driving the rock truck and that he would do have a sore neck and a
sore back afterwards. He recalled when there needed to be layoffs that Mr. Hodgson
was on a protected list, and was not one of the first that would have been laid
off given the amount of time that he had put in; however he indicated to Mr. Evans
that he preferred to be laid off because of the neck and back difficulties he
was sustaining driving the rock truck. Had he continued working, that would
have likely been to November or early December. He would have earned what he
was earning: $364.58 a day, including holiday pay at 10%. Mr. Evans
testified that the contract with IDL at Fort Nelson indeed continues to this
day.
6.
Ashley Rose McKenzie
[43]
Ms. McKenzie testified in the plaintiffs case. She has been with Mr. Hodgson
for three years now and is the mother of his child. She has only known him
since the accident but she has been with him in a number of remote locations
where he works, including Fort St. John, Cold Lake and Terrace. She
testified to the lengthy hours, from 12 to 13 hours a day, that he works each
day. She testified he was a very good provider, a hard worker and a proud
father.
[44]
She testified that he has a hard time physically going to the gym and said
that physically he cannot play with their son as he finds it too difficult.
[45]
The medications that she sees him taking are Tylenol, Aleve and Robaxacet.
He also takes melatonin to help him sleep. She notes in connection with his
sleeping that he has to move around and has difficulty getting comfortable.
[46]
She spoke about the anxiety that he has in a vehicle, particularly when
he is driving and his son is in the vehicle. If he is feeling anxious, which
is often, he will ask her to drive.
[47]
Ms. McKenzie also explained why Mr. Hodgson has not been to
see more doctors. In the remote locations they live, there is inadequate medical
coverage for all of the residents. Even when she was pregnant, she said she
found it difficult getting a physician and there definitely were no physicians
for anyone who did not have extenuating circumstances such as pregnancy.
[48]
Mr. Hodgson had headaches, usually after work, and would take some
kind of pain reliever for it, she told the Court.
D.
Credibility and Reliability of Evidence
[49]
In Bradshaw v. Stenner, 2010 BCSC 1398, affd 2012 BCCA 296, Dillon J.
stated:
[186] Credibility involves an
assessment of the trustworthiness of a witness testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to lie,
and the demeanour of a witness generally (Wallace v. Davis (1926), 31
O.W.N. 202 (Ont.H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.)
[Farnya]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para. 128
(S.C.C.)). Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole and
shown to be in existence at the time (Farnya at para. 356).
[50]
I find that at the plaintiffs witnesses were credible and to be
believed. I do not find that there was any exaggeration or reason to
disbelieve their evidence they were endeavouring to help the Court with
candid descriptions of the plaintiff and his activities, both before and after
the accident. I accept their evidence in its entirety.
[51]
His mother, Wendy Hodgson, testified and I accept her evidence. I
find she was a straightforward, honest witness, who was endeavouring to give
the Court the most accurate picture of her son especially as he was prior to
the accident and in the immediate aftermath.
[52]
In respect of the plaintiff, I accept his evidence. He was candid and
thoughtful. I also accept he was not exaggerating and indeed find he was a stoic
working through his pain to provide for his family.
E.
Liability
1.
The Plaintiffs Position
[53]
The plaintiffs position is that he had the right-of-way and the
defendant turned into his lane instead of waiting for another vehicle to have
carried on past. This vehicle obstructed his view of the roadway and the
plaintiff was right behind the other vehicle.
[54]
The plaintiff submits the applicable legislation are sections 176 and
186 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, provide as
follows:
176 (1) The driver of a vehicle in a business or residence
district and emerging from an alley, driveway, building or private road must
stop the vehicle immediately before driving onto the sidewalk or the sidewalk
area extending across an alleyway or private driveway, and must yield the right
of way to a pedestrian on the sidewalk or sidewalk area.
(2) The driver of a vehicle about to enter or cross a highway
from an alley, lane, driveway, building or private road must yield the right of
way to traffic approaching on the highway so closely that it constitutes an
immediate hazard.
186 Except when a peace officer directs otherwise, if there
is a stop sign at an intersection, a driver of a vehicle must stop
(a) at the marked stop line, if
any,
(b) before entering the marked
crosswalk on the near side of the intersection, or
(c) when there is neither a marked crosswalk nor a stop
line, before entering the intersection, at the point nearest the intersecting
highway from which the driver has a view of approaching traffic on the
intersecting highway.
[55]
In the alternative it is argued, the defendant, Mr. Saeed, ought to
have proceeded slowly into the intersection until he had an unobstructed view
of the roadway before making his turn. The plaintiffs position is, had the
defendant taken either of those precautions the collision would have been
avoided.
2.
Defence Position
[56]
The defence position, in contrast, was that the plaintiff should have
taken care to realize that at each stop sign there is the possibility of such a
collision occurring and that he should have slowed accordingly.
3.
Case Law
[57]
In Glavica v. Lott, 2014 BCSC 2238, Watchuk J. held that the
onus was on the defendant left turning vehicle, exiting from a parking lot.
The driver had to take care to ensure that no collision occurred. She stated:
[35] The
defendants actions on his evidence that he turned into the left lane when the
plaintiff was in the right lane at that location are not indicative of careful
driving but of haste. There were no other vehicles on the road at the time. If
his intention was as stated to make a safe left turn into the left lane, there
was no need for haste when seconds later the plaintiffs vehicle would have
passed by and the road would be clear. This was not a situation where a driver
was attempting to fit into a line of traffic.
…
[40] Section 144(1)(a) and (b) of the MVA
prohibit driving a motor vehicle on a highway without due care and attention,
or without reasonable consideration for other persons using the highway.
[41] Section 186 of the MVA requires a driver of
a vehicle to stop at a stop sign at an intersection. In this case, there was a
stop sign at the exit of the parking lot. Since there was no marked stop line
or marked crosswalk, the defendant was required to stop, pursuant to s. 186(c),
before entering the intersection, at the point nearest the intersecting highway
from which he had a view of approaching traffic on the intersecting highway.
[42] Once the defendant
stopped pursuant to s. 186 to wait to enter the highway, s. 176 of
the MVA was engaged and required him to yield the right of way to
traffic on the highway which was approaching so closely that it constituted an
immediate hazard. The plaintiffs vehicle constituted an immediate hazard when
the defendant turned onto Zorkin Road. Hers was the dominant vehicle.
[58]
Justice Watchuk held that the plaintiff was entitled to assume that the
defendant would not leave the parking lot exit until she had passed and the
turn could be made in safety. The plaintiff vehicle, accordingly, was an
immediate hazard and the defendant was required to yield:
[51] The plaintiff, like
the defendant in [Niloufari v. Movahedi, 2014 BCSC 680], was entitled to
assume that Mr. Lott would not leave the parking lot exit until she had
passed by him and his turn could be made in safety. The plaintiffs vehicle
was clearly an immediate hazard and Mr. Lott was required to yield to her.
[59]
Consequently the defendant was 100% liable for the accident.
[60]
In Kerr v. Hall, 2013 BCSC 2347, Melnick J. reviewed a case
in which the plaintiff was attempting to turn right onto a highway from a
parking lot. The plaintiffs vehicle was then struck by the defendants
vehicle who was already proceeding along the highway. The Court held:
[15] Thus, Ms. Kerr must
establish that when she entered Highway 3B from the Gerick Cycle parking
lot it was safe for her to do so in that Mr. Halls vehicle was not
approaching so closely that it constituted an immediate hazard.
[61]
A person must not drive without due care and attention on a highway.
Justice Melnick helpfully quoted Justice Armstrong in Currie v. Taylor, 2012
BCSC 1553, to note that the dominant driver does not have the burden of proving
the servient vehicle was not an immediate hazard unless there was some fault
with the defendant driving. He adopted the immediate hazard definition stated
by Justice Davey in Keen v. Stene (1964), 44 D.L.R. (2d) 350 (B.C.C.A.),
being an approaching car is an immediate hazard if the circumstances are such
as to require the driver of that car to take some sudden or violent action to
avoid threat of a collision if the servient driver fails to yield the
right-of-way.
[62]
At para. 20, Melnick J. noted:
[20]
In Currie v. Taylor, 2012 BCSC 1553, Mr.
Justice Armstrong, in a case involving an accident in an intersection where s.
175 of the MVA was engaged, helpfully summarized the law as follows at
paras. 65 to 68:
[65] The leading authorities that inform the Court on
liability assessment in these kinds of collisions are: Keen v. Stene (1964),
44 D.L.R. (2d) 350 (B.C.C.A.); Raie v. Thorpe (1963), 43 W.W.R. 405
(B.C.C.A.); and, Walker v. Brownlee and Harmon, [1952] 2 D.L.R. 450
(S.C.C.). The principles include the following:
a) a vehicle is an immediate hazard in circumstances where
the oncoming driver is required to take a sudden or violent action to avoid
threat of the collision if the servient driver fails to yield the right-of-way:
Raie at 406.
b) it is the movement of the servient vehicle into the
through street in the absence of an immediate hazard that gives it the
right-of-way, rather than its mere presence at the stop sign; Keen at
360.
c) consideration is given to the interval of time elapsing
to allow a careful oncoming driver to realize that the servient driver is
making an entry resulting in the danger of collision; Keen at 360.
d) the hazard is immediate if a reasonable danger of such
future collision may be apprehended at the time of the proposed entry by the
servient driver; Keen at 364 and Raie at 405.
e) if the dominant driver has become aware, or should become
aware that the servient driver has entered the intersection in disregard of the
law, then a duty arises to take sufficient steps to avoid the accident was; Keen
at 367.
[66] In Keen, Mr. Justice Davey adopted the following
definition of immediate hazard at 359:
[A]n approaching car is an immediate hazard if the
circumstances are such as to require the driver of that car to take some sudden
or violent action to avoid threat of a collision if the servient driver fails
to yield the right-of-way. …
[67] Mr. Justice Harris (as he then was ) in Knight v. Li,
2011 BCSC 184 said:
[12] Note that it is the action required of the servient
driver to avoid the threat of collision and not to avoid the collision itself
which is relevant to assessing whether the dominant driver constituted an
immediate hazard.
[68] The observations of Davey J.A. at 359 are pertinent to
the facts of this claim:
…"Speed and distance generally determine what
constitutes an immediate hazard", or as it was put by Cannon J., in Swartz
Bros. Ltd. v. Wills, [1935] 3 D.L.R. 277 at 279, [1935] S.C.R. 628 at p.
632: "…distances must be translated into time in order to determine what
are the rights of the parties."
But having said that, I must add that in most automobile
collision cases estimates of time, speed and distance do not lend themselves to
exact mathematical analysis, because the estimates are by their very nature
uncertain[…]
In my opinion s. 165 [now s. 175], dealing with
rights-of-way of drivers proceeding along through streets, and stopped at stop
signs on intersecting streets, is to be applied broadly from the point of view
of the motorist sitting in the driver’s seat, and not meticulously by a Judge
with the benefit of afterthought. The situation confronting a motorist, even
one waiting at a stop sign, is not a static, but a fluid one, calling for quick
appreciation and judgment. A driver waiting at a stop sign ought not to enter a
through street unless it is clear that oncoming traffic does not constitute an
immediate hazard. Excessive refinement of what traffic is an immediate hazard
will defeat the purpose of the right-of-way regulations contained in s. 165
[now s. 175], and make them an inadequate and confusing method of regulating
traffic at intersections on through streets.
[63]
Similarly in Walker v. Leung, 2014 BCSC 1623, Hinkson C.J. was
considering a case in which the plaintiff was in the curb lane approaching an
intersection when she struck a left-turning vehicle which crossed into her oncoming
path. The Chief Justice adopted the earlier reasoning of Legg J. in Pacheco
(Guardian ad litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273:
[45] Support for the plaintiffs position can be found
in the decision of our Court of Appeal in Pacheco (Guardian ad litem of) v.
Robinson (1993), 75 B.C.L.R. (2d) 273, 22 B.C.A.C. 185. In that case, at
paras. 15 and 18, Mr. Justice Legg, writing for the Court, held:
[15] In my opinion, a driver who wishes to make a left
hand turn at an intersection has an obligation not to proceed unless it can be
done safely. Where each partys vision of the other is blocked by traffic, the
dominant driver who is proceeding through the intersection is generally
entitled to continue and the servient left-turning driver must yield the right
of way. The existence of a left-turning vehicle does not raise a presumption
that something unexpected might happen and cast a duty on the dominant driver
to take extra care. Where the defendant, as here, has totally failed to
determine whether a turn can be made safely, the defendant should be held 100
percent at fault for a collision which occurs.
…
[18] In my opinion, when a driver in a servient
position disregards his statutory duty to yield the right of way and a
collision results, then to fix any blame on the dominant driver, the servient
driver must establish that after the dominant driver became aware, or by the
exercise of reasonable care should have become aware, of the servient drivers
own disregard of the law, the dominant driver had a sufficient opportunity to
avoid the accident of which a reasonably careful and skilful driver would have
availed himself. In such circumstance any doubt should be resolved in favour
of the dominant driver. As stated by Cartwright J. in Walker v.
Brownlee, [1952] 2 D.L.R. 450 (S.C.C.), at 461:
While the decision of every motor vehicle collision case
must depend on its particular facts, I am of opinion that when A, the
driver in the servient position, proceeds through an intersection in complete
disregard of his statutory duty to yield the right-of-way and a collision
results, if he seeks to cast any portion of the blame upon B, the driver having
the right-of-way, A must establish that after B became aware, or by the
exercise of reasonable care should have become aware, of As disregard of the
law B had in fact a sufficient opportunity to avoid the accident of which a
reasonably careful and skilful driver would have availed himself; and I do
not think that in such circumstances any doubts should be resolved in favour of
A, whose unlawful conduct was fons et origo mali.
[64]
Consequently the Chief Justice found that the defendant was completely at
fault for the accident.
[65]
The defendants position in this case is that the plaintiff should have exercised
caution going past intersections and access roads where there were stop signs.
I do not agree. The dominant vehicle is entitled to assume that the servient
vehicle will not create a hazard. Were vehicles to have to slow at every
intersection to check to see if the servient vehicle was to drive out, this
would create a hazard in and of itself.
[66]
In this case, the plaintiff testified to the fact that the defendant
vehicle pulled out so close in front of him that he could not react and he
consequently struck the front end of the defendants vehicle. However, the
plaintiff was traveling 60 km in a 50-km zone.
[67]
The defendant, Mr. Muhammad Saeed, testified and candidly admitted
that he pulled out into the intersection. I found him to be straightforward,
candid, and truthful witness. He testified he had some communication with the
driver on the other side of the road. A woman had gestured to him to come
forward and make his left turn. In reliance on that, the defendant moved
forward and his view was at that time obstructed by the Hakeem vehicle and he
consequently was struck by the plaintiffs vehicle as it came through. The
defendant clearly was facing a stop sign on Croydon and I accept his
evidence that he pulled through without having clear view as to the traffic
that was coming down 160th Street.
[68]
The Court heard as well from Mr. Shane Hakeem who was travelling
southbound on 160th Street. He testified that the accident occurred
in the early afternoon. He testified that he was paying attention to his
surroundings. There were no vehicles that in front of him. He saw the
defendant vehicle and he is not sure if he came to a full stop or more of
rolling stop. He could not give an estimate of the speeds; however, he saw the
accident which he described as more than a fender bender, and that it was a
significant accident. He gave his information to the gentleman in the black
car, being the plaintiff. Mr. Hakeem importantly stated that the
gentleman in the black car had no chance to stop. He couldnt stop.
[69]
Mr. Hodgson had testified that the accident had taken place in the
early morning; however he could not recall exactly when it was. He candidly
admitted he was going approximately 60 km/hour. I find that there was no
evidence to suggest that it would have made a significant difference if he had
been going 50 km/hour and stopped this accident from happening. I am
mindful of the case law notably Justice Daveys comments above that speed and
distance are to be taken into account in deciding an immediate hazard, however
that in these cases time and distance are more often than not estimates and cannot
translate into mathematical certainty such that it is a certainty the speed
cause the accident. Here I am also mindful of the evidence that there was no
time for the plaintiff to stop and that had more time elapsed it is possible
that the impact would have been to the cab of the defendant vehicle severely
injuring him rather than destroying the front end of his vehicle. In all of the
circumstances, I find that the defendant is 100% liable for the damages to
the plaintiff.
IV.
Contributory Negligence
[70]
The defence seeks that the plaintiff be held to be partially at fault
having contributed negligently to the cause of his own injury. Section 4
of Negligence Act, R.S.B.C. 1996, c. 333, provides:
4 (1) If damage or loss has been caused by the fault of 2 or
more persons, the court must determine the degree to which each person was at
fault.
(2) Except as provided in section 5 if 2 or more persons are
found at fault
(a) they are jointly and severally
liable to the person suffering the damage or loss, and
(b) as between themselves, in the absence of a contract
express or implied, they are liable to contribute to and indemnify each other
in the degree to which they are respectively found to have been at fault.
[71]
The inquiry for the Court is whether the plaintiff failed to take
reasonable care for his own safety and as well whether that failure is one of
the causes of the accident: see Bradley v. Bath, 2010 BCCA 10, where
Tysoe J.A. states on behalf of the Court:
[27] In my respectful view,
the trial judge did not ask the correct question. The proper question was not
whether a jogger, rollerblader or pedestrian could have been hit by the
defendants vehicle. The correct inquiry was to determine whether the
plaintiff failed to take reasonable care for his own safety and whether his
failure to do so was one of the causes of the accident. While the judge
acknowledged that the plaintiff was under a heightened duty of care because he
was in breach of the law by riding his bicycle on the sidewalk, she failed to
give effect to the heightened duty because she did not consider what care had
been taken by the plaintiff when he saw the defendants vehicle moving towards
the exit from the gas station.
[72]
The Court must consider the respective blameworthiness of each party.
This requires an evaluation of the partys conduct in the circumstances and the
extent to which it departed from the standard of reasonable care: see Alberta
Wheat Pool v. Northwest Pile Driving Ltd., 2000 BCCA 505, where Finch J.A.,
as he then was, writing for the Court, stated:
[45] In my view, the test to be applied here is that
expressed by Lambert, J.A. in [Cempel v. Harrison Hot Springs Hotel
Ltd. (1997), 43 B.C.L.R. (3d) 219 (C.A.)] and the courts task is to
assess the respective blameworthiness of the parties, rather than the extent to
which the loss may be said to have been caused by the conduct of each.
[46] Fault or
blameworthiness evaluates the parties conduct in the circumstances, and the
extent or degree to which it may be said to depart from the standard of
reasonable care. Fault may vary from extremely careless conduct, by which the
party shows a reckless indifference or disregard for the safety of person or
property, whether his own or others, down to a momentary or minor lapse of care
in conduct which, nevertheless, carries with it the risk of foreseeable harm.
Further, in Bradley, supra,
Tysoe J.A. stated:
[24] At common law, contributory negligence on the part
of a plaintiff was a complete defence to his or her claim. This was considered
to be unjust, and legislatures in many common law jurisdictions passed
contributory negligence statutes (also referred to as apportionment
legislation). The statute in this province is currently called the Negligence
Act, R.S.B.C. 1996, c. 333, s. 1(1) of which reads as follows:
If by the fault of 2 or more persons damage or loss is
caused to one or more of them, the liability to make good the damage or loss is
in proportion to the degree to which each person was at fault.
If damage or loss has been
caused by the fault of two or more persons, s. 4 of the Act
requires the court to determine the degree to which each person was at fault.
While the prerequisite to apportionment is that the damage or loss has been
caused by the fault of two or more persons, the apportionment must be done on
the basis of the degree to which each person was at fault, not on the basis to
which each person’s fault caused the damage: Cempel [supra].
[73]
As set out above, I find the defendant here is 100% at fault for
the accident, there being no evidence that driving 10 km/hour above the
speed indicated caused the accident given that the defendant candidly admitted
that he pulled onto the roadway to commence his left turn without ascertaining
that it was clear to do so. In part this was due to the gesture that had
occurred from the driver on the other side of the roadway, indicating to him to
drive forward. He resulting action in driving forward without a clear view
based on the gesture of the other motorist was negligent and underscores that
such gestures from other motorists should be ignored. The focus of the driver
should be on ones own safety and the safety of others. A driver should never rely
upon anothers gesture to presume it is safe to leave a stop sign and place of
safety.
V.
Causation
[74]
The plaintiff must establish, on the balance of probabilities, that the
defendants negligence caused or materially contributed to an injury. The
defendants negligence need not be the sole cause as long as it is part of the
cause beyond the range of de minimis.
[75]
Causation does not have to be determined by scientific precision: see Athey
v. Leonati (1996), 3 SCR 458, at paras. 13‑17, and Farrant
v. Laktin, 2011 BCCA 336, at para. 9. The question is, but for the
defence negligence would the plaintiff has suffered injury: see Resurfice
Corp. v. Hanke, 2007 SCC 7, at paras. 21-23.
[76]
Causation must be established on a balance of probabilities before
damages are assessed: see the comments of McLachlin C.J. in Blackwater
v. Plint, 2005 SCC 58, at para. 78. The purpose is to put the
plaintiff into the position they would have been in but for the defendants
negligence.
VI.
Medical Evidence
A.
Dr. John Le Nobel
[77]
Dr. Le Nobel, who is a specialist in physical medicine and
rehabilitation, provided a report that was put into evidence. He wrote in his
report: Bryan Hodgson has missed time from work. He is less capable with his
non-work recreational pastimes. In these respects, he is disabled. He also
noted that Mr. Hodgson is deconditioned based on his reduced capacity of
strength training over the past three years.
[78]
He noted Mr. Hodgsons abnormal pins and needles symptoms in his
right and left small fingers, which Dr. Le Nobel felt was consistent
with irritation of the nerves supplying the fingers. At the time of writing
the report, however, the nerve irritation had not been confirmed.
[79]
Given that it has been three years and ten months since the motor
vehicle accident, Dr. Le Nobel felt that Mr. Hodgson was
suffering from chronic pain. He defined chronic pain to be a pain which
continues for longer than tissue healing is felt to progress. Tissue healing
is generally felt to subside within 10 to 12 months of injury. He went on to
state:
I diagnose his neck and upper
body pain as due to injury to this often connected myofascial tissues in or
near the symptomatic areas in his cervical spine, paraspinal areas and shoulder
girdles. Injury to these tissues is at times deep to the body surface and not
fully evaluated with techniques such as inspection and palpation. Myofascial
injuries are felt to be a cause of chronic pain. Greater understanding of his
myofascial pain may be achieved through magnetic resonance scanning.
[80]
Dr. Le Nobel recommended that helpful measures for
Mr. Hodgson would be multidisciplinary rehabilitation to try to reduce his
deconditioning and that he work with a kinesiology and exercise-based
physiotherapist to develop a program which would include stretching and low
impact cardiovascular training and strength training. He felt he should have
time with a kinesiologist over a period of 8 to 10 months with an
understanding that the time allotment may change in the future.
[81]
He was of the opinion that Mr. Hodgson would be subject to pain
increase when increasing his activity level. Even with that treatment, however,
in respect of prognosis, he wrote:
Some benefit may be achieved
through these steps. There is no other treatment which will predictably
produce a superior result. A return to all of his prior capabilities in a symptom-free
state is not likely. In that respect, his prognosis is guarded.
[82]
Dr. Le Nobel noted that Mr. Hodgson had no difficulties,
nor any neck pain or numbness in his hands, before the motor vehicle collision.
At the time of his writing the report in August 2014, he noted that Mr. Hodgson
now has neck pain present most or all of the time, radiating on occasion to the
back of his head and to the top of his head and the back of his eyes. This
occurs, he noted, at the end of the work day. Mr. Hodgson also has
difficulties tilting his head up or to the right or the left. He noted that Mr. Hodgson
takes micro-breaks at work in order to cope.
B.
Dr. Mark Boyle
[83]
The defence called Dr. Boyle, an orthopedic surgeon, who indicated
that the medical management of the plaintiff would be in the form of stretching
and strengthening exercises and the use of over-the-counter anti-inflammatory medication.
He was cross-examined on this and it was noted that this would not be a cure. He
testified, however, that there were positive prognostic factors including his
gender, age and absence of prior history, as well as an absence of degenerative
changes and of neural upper extremity complaints.
[84]
In his report he wrote that no loss of function as expected over time.
Dr. Le Nobel had been critical of this finding as time has passed indeed
and yet there has been no return of complete function that the plaintiff
enjoyed before the accident.
[85]
Dr. Boyle noted that the plaintiff stated that his neck pain was
almost constant, being worse in the winter, as he had similarly stated to Dr. Le Nobel.
He also indicated to him that the heavy equipment can be difficult as it is
bumpy and not on level which will cause him irritation. He will have soreness
and be stiff after busy days and there is occasional grinding. Dr. Boyle also
noted the occasional sleep interruption.
[86]
In cross-examination, Dr. Boyle agreed that the grinding sound is
not good and it suggests degenerative changes. However, he was not of the
opinion that it starts small then progresses. He agreed that he presented with
symptoms but overall he felt there were no negative prognostic factors.
C.
Dr. Morgan Campbell
[87]
Dr. Morgan Campbell also testified in respect of the plaintiffs
injuries. He was qualified as an expert witness in the area of general
medicine and he gave the following statement:
Mr. Hodgson will suffer
ongoing, evolving cervical spine degeneration over many years as a result of
high-energy extension forward flexion motor vehicle accident related cervical
spine soft tissue injury, as well as episodic ongoing cervical spine pain and
periodic disability. He will require time off work and physical therapy during
these exacerbations.
[88]
Dr. Campbell noted that Mr. Hodgson has a stoic-type
personality and he opined it was important to consider the accident. This was
a high-energy posterior followed by anterior flexion whiplash injury to the
plaintiffs cervical spine and a similar injury to his lumbar region.
[89]
Dr. Campbell commented that Mr. Hodgson continued to work
because of his stoic nature at his physically demanding work. Accordingly, the
fact that this is noted in Dr. Boyles opinion is not to be counted
against him. He had to provide for his family and consequently was unable to
continue pursuing ongoing physical therapy, as well as his own inability to
afford the cost of the therapy
[90]
Dr. Campbell, based his opinion in large part on his experience and
on his practice of medicine for 30 years. He believed that Mr. Hodgson will
have difficulty getting back to normal given the amount of time that has passed
and the degenerative changes that were likely in existence in this case. He
noted that this is particularly evident from the grinding which was testified
to and noted by both Dr. Boyle and Dr. Le Nobel. He testified
that Mr. Hodgson will inevitably have degeneration not of the bones and
disc but of the soft tissue. He is using his neck heavily and ultimately, he
is going to have issues with his neck and, in fact, already is.
[91]
Time off work and physiotherapy, Dr. Campbell noted, can alleviate
the pain for a time but it will not be a cure. He testified how the grinding
is one of the first signs of ongoing degenerative changes in the vertebrate, as
scar tissue is formed which makes a grinding noise. To Dr. Campbell it
was an indication of how much damage has been done.
[92]
He also noted the discomfort the plaintiff feels and the pain radiating
to his back and the left side of his neck. Dr. Campbell felt that the
plaintiffs pain had plateaued. It was a chronic pain-type syndrome resulting
in sleep interruption. From the chronic pain he will experience a loss of
function; hopefully, the doctor testified, the plaintiff can work around it, as
that is how he has performed to date. He did not agree with Dr. Le Nobels
opinion that there is no long-term loss of function, given the fact that that
the plaintiff is still having symptoms which is evidence of damage. In his
view, the pain in effect leads to a functional disability.
[93]
Dr. Campbell did not agree, in cross-examination, that physiotherapy
and, in particular, early physiotherapy would have cured the plaintiff. Instead,
he indicated that it would offer relief but would not be a cure. As well, he
noted the plaintiff had an x-ray and the radiologist noted that the plaintiff
had torticollis. His alignment is normal but he had a curve. While Dr. Boyle
had discounted this, Dr. Campbell deferred to the radiologist and felt
there should be further exploration by way of magnetic resonance imaging. He did
not believe, however, that Mr. Hodgson had nerve root injury, and he agreed
that there is no evidence he would require surgery. Dr. Campbell opined however
that there is a permanent functional impairment and he felt that the best
hard sign of that was the grinding.
[94]
He would not agree on cross-examination that the plaintiff would not
have cervical spine degeneration in the future. On re-examination he was asked
why. He indicated that over his 30 years of practice, he had seen the type of
injury sustained by the plaintiff many times before. The mechanics of the
accident are important to him.
VII.
discussion
[95]
I accept the evidence of Dr. Campbell and Dr. Le Nobel of
the plaintiffs ongoing pain and its chronic nature and that he is a stoic individual
who is working at best to cope with his pain. Dr. Boyle testified that
physiotherapy would not cure the plaintiff. He noted the grinding. While he
was hopeful for the plaintiff, indicating positive prognostic factors, I find
these to be only general, hopeful observations. I prefer the evidence of Drs. Campbell
and Le Nobel.
[96]
I find that the accident caused the plaintiffs injuries.
[97]
I find that the plaintiffs injuries here were caused by the
defendants negligence.
VIII.
Damages
[98]
The plaintiff has a duty to mitigate and in this case there was some
issue as to whether the plaintiff should have been seeking more frequent
medical attention. I find however that given the remote locations and the
scarcity of doctors at the remote locations where the plaintiff was working,
there is no fault on the plaintiff for not seeing a physician more regularly:
see Chiu v. Chiu, 2002 BCCA 618:
[57] The onus is on the
defendant to prove that the plaintiff could have avoided all or a portion of
his loss. In a personal injury case in which the plaintiff has not pursued a
course of medical treatment recommended to him by doctors, the defendant must
prove two things: (1) that the plaintiff acted unreasonably in eschewing
the recommended treatment, and (2) the extent, if any, to which the
plaintiff’s damages would have been reduced had he acted reasonably. These
principles are found in Janiak v. Ippolito, [1985] 1 S.C.R. 146.
See also Wahl v. Sidhu, 2012 BCCA 111, at
para. 32, and Morgan v. Galbraith, 2013 BCCA 305, at para. 78.
A.
Non-Pecuniary Damages
[99]
Non-pecuniary damages are awarded to compensate the plaintiff for pain
and suffering, loss of enjoyment of life and loss of amenities. This award should
be fair to all parties and fairness is measured against awards made in comparable
cases.
[100]
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined
factors to be considered when assessing damages:
[46] The inexhaustive list of common factors cited in [Boyd
v. Harris (2004), 237 D.L.R. (4th) 193] that influence an award of
non-pecuniary damages includes:
(a) age of
the plaintiff;
(b) nature
of the injury;
(c) severity
and duration of pain;
(d) disability;
(e) emotional
suffering; and
(f) loss
or impairment of life;
I would add the following factors, although they may arguably
be subsumed in the above list:
(g) impairment
of family, marital and social relationships;
(h) impairment
of physical and mental abilities;
(i) loss of
lifestyle; and
(j) the plaintiff’s stoicism (as
a factor that should not, generally speaking, penalize the plaintiff: Giang
v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54).
[101] A plaintiff
should not be punished for stoicism. It is important to bear in mind that the
assessment non-pecuniary damages is influenced by the plaintiffs personal
experiences in dealing with his injuries and their consequences: see Dilello
v. Montgomery, 2005 BCCA 56 at para. 25.
1.
Plaintiff position on non-pecuniary damages
[102] The
plaintiff cited the Walker decision, supra, at para. 101, in
which Hinkson C.J. reviewed Guthrie v. Narayan, 2012 BCSC 734. In
this case, a 26-year old woman had been injured in a motor vehicle accident and
at the date of trial she was experiencing pain that varied in intensity and was
concentrated on right side of her neck and shoulders. She experienced that
pain on a daily basis and, while she had been able to resume full-time
employment, this is only after accommodations were made to assist her work. She
could no longer perform certain household tasks. Her injuries affected her
relationship with her boyfriend. Sitting for extended periods was
uncomfortable. In Guthrie, the plaintiff was awarded $65,000 in non-pecuniary
damages by Goepel J. (as he then was).
[103] In the
case of Azuma-Dao v. MKA Leasing Ltd., 2012 BCSC 10, a 28-year-old woman
was injured in a motor vehicle accident and suffered from chronic pain as a
result. Prior to the accident, she was a fit and active person and the accident
caused her to be withdrawn and moody. As well she became deconditioned. She
was awarded $65,000 in non-pecuniary damages.
[104] In Raun
v. Suran, 2010 BCSC 793, a 17-year-old male suffered injury to his right
shoulder, left knee, neck and his middle and upper back as a result of a motor
vehicle accident. The prognosis for his right shoulder was good; however the
prognosis for his neck and low back pain was guarded, and it was found that the
continuing pain had significantly affected him. The Court awarded $75,000 for non-pecuniary
damages.
[105] In
Bergman v. Standen, 2010 BCSC 1692, a 32-year-old woman suffered whiplash
injuries which caused mechanical injury to her lower back, causing her
significant pain and discomfort for 4-1/2 years from the date of the accident,
and it was believed that she would be symptomatic indefinitely. She was
awarded $77,500 for non-pecuniary damages.
[106] In Clark
v. Kouba, 2012 BCSC 1607, a 49-year-old woman sustained soft tissue
injuries to her neck, shoulders and mid and upper back in a motor vehicle
accident, resulting in chronic pain, headaches, emotional and cognitive
distress and sleep disorder. Her prognosis for the future was guarded. The
court awarded her $85,000 for non-pecuniary damages.
2.
Defence position on non-pecuniary damages
[107] The
defendant submitted that an award in the range of $3,500 to $15,000 was
appropriate, citing Clark v. Lumgair, [1999] B.C.J. No. 2571, in
which $9,000 was awarded; however I note in that case that Edwards J.
stated at para. 16 of that decision that the plaintiffs injuries did not
prevent him from carrying on recreational and other activities including
extensive renovation work on a house, he did not have constant pain with certain
activities, extended periods of sitting or awkward neck postures, when biking
or golfing exacerbated symptoms. He concluded at para. 19 that the
plaintiff did not have ongoing pain and had sustained only a mild to moderate
soft tissue injury.
[108] Best v.
Hoyle [1999] B.C.J. No. 2457 was also cited for the proposition that damages
in the amount of $15,000 were appropriate. In that case, again a decision of
Edwards J., he noted at para. 8 that the plaintiffs symptoms had
significantly abated within three months of the accident. He also noted that
the symptoms were not disabling although they impacted on the plaintiffs
enjoyment of life.
[109] I do
not find that the cases submitted by the defendant are similar to the situation
before the Court faced by the plaintiff who suffers from chronic pain. I find
that this case is more akin that of Clark v. Kouba.
[110] I find the
plaintiff has suffered a significant change in his abilities since the accident
affecting his family, work and personal life. He is no longer able to take joy
in all activities including his hobbies and caring for his young son. In all the
circumstances, I make an award of $80,000 for non-pecuniary damages.
B.
Past Loss of Capacity
[111] I accept
the evidence of Keith Evans, Wendy Hodgson, Michael Heldt and the plaintiff
that, as a consequence of his injuries, he was unable to continue with his
employment at Fort Nelson working for ICL, the division of IDL where he was
making $27.28/hour. He had asked to be laid off due to his pain and as a
consequence he sustained a loss of income. Had Mr. Hodgson continued to November 1,
which was the usual time that the work was able to become conducted up to
according to Mr. Evanss evidence which I accept, the law and past
loss of earning capacity, compensation for past loss of earning capacity is to
be based on what plaintiff would have, not could have, earned but for the
injury that will sustained: see Rowe v. Bobell Express Ltd., 2005 BCCA
141 at para. 30, and M.B. v. British Columbia, 2003 SCC 53, at
para. 49.
[112] The
plaintiff is only entitled to recover damages on his net income loss: see
s. 98 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996,
c. 231. The Court must consequently deduct the amount of income tax
payable from lost gross earnings: see Hudniak v. Warkentin, 2003 BCSC
62.
[113] The burden
of proof on income loss is on a balance of probabilities.
[114] I accept
that this loss is been incurred by Mr. Hodgson and, given that taxes, Employment
Insurance and CPP must be deducted, I award Mr. Hodgson $22,968.54.
C.
Future Loss of Capacity
[115] The
plaintiff has a young family and intends to work to provide for them. I accept
his evidence in that regard. By Dr. Campbell and Dr. Le Nobels
evidence, the plaintiff is now disabled from doing all the things he would
normally have been able to do. He is going to become less and less able,
according to Dr. Campbell, to earn income in labouring and the
construction industry as a consequence of his injuries. He is consequently
less valuable to a potential employer.
[116] A claim
for loss of earning capacity must consider whether the plaintiffs earning
capacity is been impaired by his or her injuries and, if so, what compensation
should be awarded for the resulting financial harm that will accrue. This
assessment is not based on an application of a purely mathematical calculation
and instead will vary from case to case: see Brown v. Golaiy (1985), 26
B.C.L.R (3d) 353 (S.C.); (1995), Pallos v. I.C.B.C., 100 B.C.L.R. (2d)
260 (C.A.); and Pett v. Pett, 2009 BCCA 232.
[117] The
damages assessment in this regard is a matter of judgment and not calculation:
see Rosvold v. Dunlop, 2001 BCCA 1, at para. 18. There are two possible
approaches, being at the Pallos approach and the earnings approach, and
the approach in Brown. The earnings approach will be more useful if the
loss is easy measurable: see Perren v. Lalari, 2010 BCCA 140 at
para. 32; however where it is not, the capital asset approach advocated in
Brown is more appropriate. This approach involves considering factors such
as:
·
whether the plaintiff is rendered less capable overall of earning
income from all types of employments;
·
whether the plaintiff is less marketable or attractive as a
potential employee;
·
whether the plaintiff has lost the ability to take advantage of
all job opportunities that might otherwise have been open to him; and
·
whether the plaintiff is less valuable to himself as a person
capable of earning income.
[118] In the
circumstances, I accept that the plaintiff at present is suffering pain
daily after working, and that he must that take analgesics and is endeavouring
to take only Aleve or Robaxacet and Tylenol to help with the pain; however it
is clear that the plaintiff suffers from ongoing difficulties and, according to
Dr. Campbell, he will in the future.
[119] In all of
the circumstances, considering all of the factors and the fact that Mr. Hodgson
is 40 years away from retirement, I award $75,000 for this loss.
D.
Cost of Future Care
[120] The
plaintiff is entitled to be compensated for the cost of future care based on
what is reasonably necessary to restore him or her to the pre-accident condition
in so far as that is possible: see Milina v. Bartsch (1985), 49 B.C.L.R.
(2d) 33, and Spehar (Guardian ad litem of) v. Beazley, 2002 BCSC
1104.
[121] The future
care that is foreseen as a consequence of these injuries is that Mr. Hodgson
will continue to have to pay for pain relieving medications. I am
satisfied that the medications are justified as both medically necessary and
likely to be incurred by the plaintiff. An assessment of damages for the cost of
future care is not to be a precise accounting exercise: see Krangle
(Guardian ad litem of) v. Brisco, 2002 SCC 9, at para. 21.
[122] I accept
that Mr. Hodgson has a daily need for pain medication.
[123] In all the
circumstances, I award Mr. Hodgson $15,000 in cost of future care for
medications which he will incur in the future.
E.
Special Damages
[124] In evidence
before the Court were special damages being pain medication from November 20,
2012 to May 8, 2013 in the amount of $65.40, on November 28, 2013,
acetaminophen and Aleve in the amount of $23.94; from October 8 to October 18,
2010, three physiotherapy treatments at $60 apiece, and from August 5 to August 6,
2014, various receipts totalling $109.45.
[125] It is
well-established that an injured person is entitled to recover reasonable
out-of-pocket expenses incurred. Given that this is governed by the principle
that a person is to be restored to the position they would have been the
accident not taken place: see X. v. Y., 2011 BCSC 944, at para. 281,
Milina at para. 78. Accordingly, the plaintiff is entitled to $1,009.45.
F.
Summary of Damages
[126]
In summary, damages are awarded as follows:
· | $80,000 |
· | $22,968.54 |
· | $75,000 |
· | $15,000 |
· | $1,009.45 |
TOTAL: | $193,977.99 |
IX.
cOSTS
[127]
In the event that counsel is unable to reach an agreement respecting
costs, counsel may, within 60 days of the release of this judgment, arrange to
address costs by contacting the Registry.
Maisonville J.
Maisonville
J.