IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160308

Docket: M130175

Registry:
Vancouver

Between:

Dawid
Swieczko

Plaintiff

And

Hanaa
Nehme

Defendant

Before:
The Honourable Madam Justice Koenigsberg

Reasons for Judgment

INTRODUCTION

[1]            
This is a claim for damages for personal injuries that the plaintiff
suffered in a "T-bone" motor vehicle accident that occurred at around
7:00 p.m. on October 29, 2011 (the "Accident").

[2]            
Liability is a major issue.  Ms. Nehme is suing Mr. Swieczko
for this same accident in a separate action, Vancouver Registry No. 136835
(the "Second Action"), which is set for trial in the fall of 2016.

[3]            
At the opening of trial, counsel for Ms. Nehme in the Second
Action, against Mr. Swieczko, and counsel for Mr. Swieczko as
defendant in the Second Action, sought to be heard on liability by written
submissions at the end of this trial.  It was agreed that barring extraordinary
circumstances, the finding of liability in this trial would be binding on all
parties.

[4]            
After a significant discussion, I agreed to some form of submissions –
oral or written – from counsel in the Second Action at the close of submissions
in this trial.  Ms. Nehme and Mr. Swieczko both, through counsel, and
in Ms. Nehme’s case, directly to the Court, agreed that they understood
that this Court’s finding on liability would be binding on them barring
extraordinary circumstances.  Extraordinary circumstances were agreed to be
defined as matters which must become apparent during this trial and if such
circumstances were apparent this Court would entertain an application for a
mistrial.

[5]            
This agreement was put on the record and, thus, I agreed that counsel in
the Second Action could remain during the trial and could, if they chose, make
submissions in some form at the end of the trial.  Counsel in the Second Action
did remain throughout the trial and Ms. Dhahan, on behalf of Ms. Nehme,
chose to make oral submissions on liability.  Mr. Urquhart did not.

LIABILITY

[6]            
The Accident occurred at the intersection of No. 4 Road and
Westminster Highway in Richmond, British Columbia.  At this intersection,
Westminster Highway has three lanes of traffic in either direction, with each
side having two through lanes and a left turn lane.

[7]            
There is no dispute that the defendant was travelling westbound in the
curb lane on Westminster Highway when her vehicle struck the passenger side of
the plaintiff’s vehicle, while the plaintiff was turning left from the
eastbound left turn lane on Westminster Highway to go north on No. 4 Road.

[8]            
The issue in dispute is the proportion of liability that should be borne
by the plaintiff and the defendant for the Accident.  Each of the parties claim
the other is 100% at fault.

Positions of the Parties

Plaintiff

[9]            
The plaintiff submits that he arrived at the intersection while the
lights on Westminster Highway were at a stale green.  He came to a stop at the
white stop line and then proceeded into the intersection while the light was
still at a stale green, and his left turn indicator was on at all times.

[10]        
The plaintiff waited in the intersection for oncoming traffic to pass so
that he could make his left turn.  The Westminster Highway light turned amber,
and westbound vehicles continued to pass on the early amber, preventing the
plaintiff from making his turn.  As the amber light became stale, two westbound
vehicles in the inside lane came to a stop and the plaintiff began his left
turn.  He likely did not see the defendant’s vehicle as he made his turn because
his view was blocked by the two stopped vehicles in the inside lane.

[11]        
The Westminster light turned red shortly after the plaintiff began
making his turn.  For a few critical seconds, the lights in all directions at
the intersection remained red (the "all-red").  Late in the all-red,
the plaintiff was finishing his left turn onto No. 4 Road.  At that
moment, the plaintiff’s wife, Ms. Kelsey Phillips, who was sitting in the
front passenger seat of the plaintiff’s vehicle, looked to her right and saw
the defendant’s minivan approaching the middle of the intersection at speed.  She
uttered a warning to the plaintiff, but it was too late for the plaintiff to
react or avoid the collision.

[12]        
The plaintiff says the defendant entered the intersection while her
light was red.  The front of her minivan struck the passenger side of the
plaintiff’s vehicle, with the force of the collision sending her minivan into a
vehicle driven by Mr. Alexander Albrich, who was stopped in the southbound
inside lane on No. 4 Road, waiting to go straight through.

Defendant

[13]        
The defendant submits that she was traveling at a safe speed of roughly
55 km/h when she entered the intersection.  The Accident happened after
she had entered the intersection, while the light was changing from green to amber.
She could not bring her vehicle to a safe stop when the light turned amber,
because she was already into the entrance to the intersection.  There, she was
the dominant driver and had the right of way.

Findings of Fact

[14]        
In making my findings of fact, I considered the evidence given by the
following witnesses, all of whom were present at the time of the Accident and
testified on matters relevant to the liability issues in this case:

a)             
the plaintiff, Mr. Dawid Swieczko, who was turning left from the
eastbound left turn lane on Westminster Highway to go north on No. 4 Road;

b)             
the plaintiff’s wife, Ms. Phillips, who was riding as a passenger
in the front seat of the plaintiff’s vehicle;

c)              
the defendant, Ms. Hanna Nehme, who was driving through the
intersection while westbound on Westminster Highway in the curb lane;

d)             
the defendant’s son, Mr. Humaam Hamado, who was sitting in the
front passenger seat of the defendant’s minivan;

e)             
Mr. Albrich, who was the driver of a vehicle that was stopped and
waiting to go straight through in the southbound inside lane of No. 4
Road; and

f)               
Ms. Diana Lee, who was the driver of a vehicle that was stopped and
waiting in the westbound left turn lane on Westminster Highway to turn left
onto No. 4 Road.

Colour of the Westminster Hwy. Light when the Accident Occurred

[15]        
I find that the evidence establishes on a balance of probabilities that
the Westminster Highway light was in the early red or all-red stage when the
Accident occurred.

[16]        
I note that the plaintiff testified that he did not see the light turn
red while he was making his turn.  However, his evidence that he began his turn
while his light was in the late amber stage was consistent and credible, and,
when combined with the fact that he would have had to cross two lanes of
traffic to have been in front of the westbound curb lane where the collision
occurred, strongly supports the inference that the light was in the all-red
stage at that time.

[17]        
This inference is buttressed by the evidence of Ms. Phillips, who
credibly testified that she saw the light turn red before the Accident
occurred.  In general, I give significant weight to the testimony of the
plaintiff and Ms. Phillips, whose accounts I find to be reliable, credible
and unshaken on cross-examination.

[18]        
My finding is also consistent with the testimony of the two independent
witnesses, Mr. Albrich and Ms. Lee.  Mr. Albrich initially
testified that, immediately prior to the Accident, he saw that the Westminster
Highway lights were green.  However, on cross-examination, he admitted he may
have been in error, and the green light that he saw may have in fact been a
south-facing light, meaning that it was a green light for the northbound
traffic on No. 4 Road.

[19]        
If Mr. Albrich’s evidence on this point is correct, it logically
follows that there was a red light for the traffic on Westminster Highway at
the time of the Accident.  Even if his observation in this regard is mistaken,
his testimony that he had been waiting for a while at the intersection before
the Accident occurred is consistent with my finding as to the colour of the
lights.

[20]        
Ms. Lee testified that she was waiting to turn left in the
westbound left turn lane on Westminster Highway when the Accident occurred.  She
said that her light had already turned red when she saw the defendant’s vehicle
approaching into the intersection at speed.  She said that she noticed that the
defendant was not slowing for the red light, and she knew a collision was
imminent.  Ms. Lee testified that the defendant entered the intersection
while the light was red.  In a prior statement, Ms. Lee indicated that the
plaintiff’s vehicle was traveling northbound on No. 4 Road at the time of
the Accident, but admitted that she was in error on this point and had
mistakenly presented an assumption as an observation.

[21]        
Ms. Lee testified that she saw the Accident and immediately called
911 while she was still stopped in the left turn lane on the westbound side of
Westminster Highway.  She then made her turn onto No. 4 Road and pulled
over onto the shoulder to await emergency services, which quickly arrived on
the scene.  She did not give a statement to the police at that time because it
appeared that they had everything under control, and she had spoken to the 911
operator.

[22]        
While I find Ms. Lee to be candid, forthright and fair as an
independent witness, I give less weight to her testimony than that of the other
witnesses because she did not provide a statement about her observations until
more than two years after the Accident occurred.  I do, however, accept that
she saw the Accident happen while she was stopped and waiting in the westbound
left turn lane on Westminster Highway, and I find that her account in this
regard was uncontradicted by the other witnesses.

[23]        
The fact that prior to the Accident Ms. Lee had come to a stop in
the left turn lane and had not proceeded into the intersection to make her
turn, supports the inference that the Westminster Highway light was in the late
amber, all-red, or early red stage at that time.  This inference provides
further reinforcement for my finding that the light was in the all-red or early
red stage at the time of the Accident, which would have occurred shortly after Ms. Lee
came to a stop in the left turn lane.

[24]        
I am unable to rely on the defendant’s testimony as to the colour of the
light when she entered the intersection.  Her account in this regard was
unreliable and inconsistent.  In a statement taken on November 2, 2011, just
four days after the accident, she said that the light was yellow as she entered
the intersection.  However, at trial, she testified that the light was green
when she entered the intersection.

[25]        
The defendant’s November 2, 2011 statement is problematic in other
respects.  She claims that as she approached the intersection, traveling at
50-60 km/h, she could see the plaintiff’s vehicle stopped at the white
line in the eastbound left turn lane.  She said that she entered the
intersection and suddenly the plaintiff began to make his left turn.  The
defendant then hit her brakes but was unable to avoid colliding with the
plaintiff’s vehicle.

[26]        
I find this account of the Accident to be unreliable.  As I mentioned
above, the defendant was traveling in the westbound curb lane, so the
plaintiff’s vehicle had to have crossed two lanes of traffic to have been
"T-boned" by the defendant’s minivan.  The evidence clearly
establishes that this was what occurred.  The idea that the plaintiff would
have been able to move into this position from a full stop in the same amount
of time that it took the defendant’s vehicle, moving at 50-60 km/h, to travel
the width of the pedestrian crosswalk and perhaps one lane of traffic is
unlikely and unsubstantiated by the weight of the evidence.

[27]        
Although he presented as a forthright witness and reasonable young man,
I am likewise unable to rely on the testimony of the plaintiff’s son, Mr. Hamado.
He testified that the Westminster Highway light changed from green to yellow
while the defendant’s minivan was entering the intersection, which is
inconsistent with the weight of the remainder of the evidence, as I have set
out above.  He was not an experienced driver at the time of the Accident and
had only recently obtained his learner’s permit.  His recollection of what had
happened just before the collision is no doubt coloured by the fact of the
collision and his mother’s statements.  However, I wish to be clear that his
evidence reflected his sincere beliefs about what occurred and his observations
may have been subject to misunderstandings about which lights he was seeing and
his ability to judge distances.

[28]        
I should not leave this assessment of conflicting evidence without
further comments.  The defendant, Ms. Nehme, gave her evidence through an
interpreter.  She does speak English; however, she apparently finds it difficult
to express herself fluently in that language.  There were many inconsistencies
in her evidence, both in relation to what she said at her examination for
discovery and also her statement closer to the time of the accident, in
relation to her evidence at trial.  More problematic, however, she appeared to
be quite unresponsive to clear questions while giving her testimony in court. 
This happened several times.  I am unable to determine whether she is simply an
unreliable and stubborn witness or if the problem is one of difficulty with the
English language or perhaps both.  In the result, her evidence of the colour of
light as she approached or just entered the intersection was worthy of little
weight.  The Court is left with trying to determine the colour of the light as
she approached and entered the intersection on the basis of other evidence and
logical deduction.

[29]        
In summary, I find that the probabilities of the evidence upon which I
can rely establish that the Westminster Highway light was in the all-red or
early red stage at the time of the Accident.  I also find that the light was in
the late amber stage as the plaintiff began his left turn.  I therefore find
that the light was in the late amber or early red stage as the defendant
entered the intersection.  Thus, the light had turned amber when the defendant
was well before the intersection and she should have had enough time to safely
stop.

Proportion of Liability

[30]        
The applicable sections of the Motor Vehicle Act, R.S.B.C. 1996,
c. 318, are:

Yellow light

128 (1) When a yellow
light alone is exhibited at an intersection by a traffic control signal,
following the exhibition of a green light,

(a)        the
driver of a vehicle approaching the intersection and facing the yellow light
must cause it to stop before entering the marked crosswalk on the near side of
the intersection, or if there is no marked crosswalk, before entering the
intersection, unless the stop cannot be made in safety,

Red light

129 (1)
Subject to subsection (2), when a red light alone is exhibited at an
intersection by a traffic control signal, the driver of a vehicle approaching
the intersection and facing the red light must cause it to stop before entering
the marked crosswalk on the near side of the intersection, or if there is no
marked crosswalk, before entering the intersection, and subject to the
provisions of subsection (3), must not cause the vehicle to proceed until a
traffic control signal instructs the driver that he or she is permitted to do
so.

Yielding right of way on left turn

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

[31]        
Madam Justice Warren succinctly sets out the law concerning liability
for a collision between a left-turning vehicle and a straight-through driver in
Lozinski v. Maple Ridge (District), 2015 BCSC 1277 at paras. 70-71:

However, in a case involving a left-turning driver and a
straight-through driver who collide in a traffic-light controlled intersection,
it is the colour of the lights that determines which of the drivers has the
right of way and, accordingly, which is dominant: Miller v. Dent, 2014
BCCA 234. Where the left-turning driver has entered the intersection without
breaching traffic signals and the straight-through driver enters the
intersection on a red light, the left-turning driver is dominant and the
straight-through driver is servient: Miller, at paras. 14 and 16;
and, Henry v. Bennett, 2011 BCSC 1254 at para. 73.

In such a case, the left-turning
driver is entitled to proceed on the assumption that oncoming traffic will act
in accordance with the law and, in particular, will stop for a red light,
absent any reasonable indication to the contrary and provided he or she acts
with reasonable care: Kokkinis v. Hall (1996), 19 B.C.L.R. (3d) 273
(C.A.). See also Uyeyama (Guardian ad litem of) v. Wittenberg, [1985]
B.C.J. No. 1883 (C.A.); Henry; and, Lee v. Tse, 2013 BCSC
1740 at para. 49. This does not mean that a left-turning driver is
entitled to treat a red light as a guarantee of safe passage. The left-turning
driver is entitled to assume that oncoming traffic will stop at a red light but
must also react reasonably to manifest hazards: Tejani v. Greenan, 2001
BCSC 803 at para. 29.

[32]        
My findings concerning the colour of the light at the time of the
Accident and at the time the plaintiff began his turn and the defendant entered
the intersection are set out above, and inform the analysis that follows.

[33]        
In my view, the plaintiff in this case acted with reasonable care in
making his left turn.  He entered the intersection on a green light and as the
light turned amber, he waited and watched for the westbound traffic to come to
a stop.  He did not make his turn until he saw that two vehicles had stopped in
the westbound inside lane, and from his view at that point, the curb lane was
clear.  He could not reasonably have been expected to remain stopped in the
intersection as the light continued to turn from late amber to all-red, and
then to early red.  He was therefore entitled to proceed on the assumption that
oncoming traffic would act in accordance with the law.

[34]        
The defendant, on the other hand, was required under the Motor
Vehicle Act to stop her vehicle before entering the intersection.  As I
have found above, the evidence establishes that she entered the intersection on
a late amber or all-red.  Had she been as responsive to the light as she was
obligated to be by ss. 128 and 129 of the Motor Vehicle Act, I find
that she would have had sufficient time to stop her vehicle safely before
entering the intersection.  This finding is supported by my findings as to the
late stage of the Westminster Highway light, and the fact that several vehicles
had already come to a stop in the other two westbound lanes before the
defendant entered the intersection.

[35]        
Citing Pacheco (Guardian ad litem of) v. Robinson (1993), 75
B.C.L.R. (2d) 273 (C.A.), and the cases that follow it, the defendant argues
that the plaintiff is responsible for the Accident because he failed in his
obligation not to make his left turn until it could be done safely.  Even if
the light had turned red, the defendant argues that the plaintiff did not make
his turn safely because the defendant’s vehicle was there to be seen and was so
close as to constitute an "immediate hazard".

[36]        
This argument is untenable.  Taken to its logical conclusion, it would
create a legal stranglehold that would make left-turning drivers always
completely at fault for red and yellow light collisions, which would be
directly contrary to the clear wording of s. 174 of the Motor Vehicle
Act.  I accept as credible the plaintiff’s account that the defendant’s
vehicle was not visible to him as an immediate hazard because his view was
obstructed by the stopped cars in the inside westbound lane.  As I have noted
above, he was entitled to assume that any traffic still present in the curb
lane would follow the rules of the road.  The difficulty faced by left-turning
vehicles in busy intersections is discussed in Henry v. Bennett, 2011
BCSC 1254 at para. 66:

The chief argument advanced by the defendant on appeal was
that the plaintiff’s entitlement to assume that other traffic (i.e. the
defendant) would obey the law did not relieve her of the obligation to act
reasonably and not proceed into the collision where it is apparent, or should
be, that the other driver is not going to yield the right-of-way. Newbury J.A.
confronted that difficult issue at para. 10 in the following terms:

I must say this argument has given me pause; but ultimately
I resolve it by asking whether in law [the plaintiff] should be faulted for
diverting her attention momentarily from oncoming traffic to check cross
traffic at the point in time in question, i.e., as she prepared to start her
turn – to see if any of those cars had jumped the light or were going to pose a
threat to her turn. Was this an unreasonable or careless thing to do?  I
think not, given both the realities of the situation (which of course occurred
over only a few seconds) and past decisions of this Court that have imposed on
left-turning drivers the duty to be aware not only of oncoming traffic, but
also of cross traffic, pedestrians, and whatever else may be present in the
intersection. To say that the plaintiff can be found at fault because she
relied on the assumption that [the defendant] would stop, and because she
checked cross-traffic, would in my view subvert the duty on [the defendant] to
bring his vehicle to a safe stop at the amber light as the other traffic did.
An amber light is not, as the current witticism suggests, a signal to
accelerate or to pass traffic that is slowing to a stop. Indeed, as Mr. Justice
Esson noted in Uyeyama, in a busy city like Vancouver and at a busy
intersection like 25^th and Granville, an amber is likely the only
time one can complete a left turn. Drivers approaching intersections must
expect that this will be occurring. Putting a burden on a left-turning driver
to wait until he or she sees that all approaching drivers have stopped would,
in my view, bring traffic to a standstill. We should not endorse such a result.

[37]        
The fact that a moment before the plaintiff first saw the defendant’s
vehicle, Ms. Phillips saw it as it was bearing down upon them does not
change my opinion in this regard.  By this point, the plaintiff had nearly
completed his turn and had appropriately turned his attention to No. 4
Road in front of him.  It was too late for the plaintiff to avoid the collision
even if he had seen the defendant’s vehicle at the same time as Ms. Phillips
did.  The plaintiff reacted reasonably to the hazards before him, as required
by the common law: Lozinski at para. 71.

[38]        
I therefore find, pursuant to the analysis set out in Lozinski
and Miller v. Dent, 2014 BCCA 234, that the plaintiff, as the
left-turning driver, was dominant, and the defendant, as the straight-through
driver, was servient.  The defendant was thus obliged under s. 174 of the Motor
Vehicle Act to yield the right of way to the plaintiff.  As a result of her
failure to do so, and to stop her vehicle safely before entering the
intersection, I find that the defendant should bear 100% of the liability for
the Accident.

DAMAGES

[39]        
It is not contested that Mr. Swieczko was significantly injured in this
severe collision.  His spouse was even more significantly injured which, in
relation to increasing Mr. Swieczko’s housekeeping and parenting tasks, is
a factor that is relevant to consider.

[40]        
Mr. Swieczko suffered significant soft tissue injuries as a result
of the accident.  The clear medical evidence from the plaintiff’s orthopedic
surgeon, Dr. G.M. McKensie, is that Mr. Swieczko’s soft tissue
injuries are now chronic and permanent, presenting as moderate to severe pain
in the neck, mid-back and lower back with persistent flare-ups as a result of
overtime work, attempts at physically interacting with his growing one-year-old
daughter and attempts to reintegrate previously enjoyed recreational
activities.  His prognosis is poor.  Dr. McKensie testified that while
there are some positive prognostic indicators, such as the likelihood that his
function will improve with an appropriate pain/activity program; these are
outweighed by the negative indicators, such as length of time Mr. Swieczko
has experienced pain and the fact that his body has become sensitized to it.

[41]        
Dr. Ashleigh Stelzer-Chilton, Mr. Swieczko’s general
practitioner, testified that Mr. Swieczko will never return to his
pre-accident baseline.  She believes he can improve his function and in that
sense she hopes for a decrease in his pain with some activities.

[42]        
Mr. Swieczko was 27 years old at the time of the Accident.  He is
now 31.  He has been engaged in the video game industry for close to nine
years.  He began as a "quality assurance" tester.  This is a sedentary
job, essentially playing games to ferret out problems before the games are
released to the public.  It requires concentration and repetitive tasks.  It
was described as being a form of detective work.  The work often requires
overtime as projects reach launching time; that is, 10-to 16-hour days.  This
career is generally somewhat insecure, as most of the employment is on
contract.  Mr. Swieczko has been laid off and re-hired several times.

[43]        
Mr. Swieczko’s ambition has been to be a game designer and
currently he has landed his dream job.  Mr. Swieczko is obviously a
talented, hard-working, ambitious young man.  He appears to have an above
average ability to get re-hired as needed at his places of employment and
lately has been promoted.  However, all of the medical evidence indicates that he
will have difficulty maintaining and progressing in his career to the extent
that it relies on individuals having the stamina to intermittently work long
days.  Mr. Swieczko has on occasion been unable to work the required overtime
and when he has done so, he can only do it for a day or so without resorting to
strong pain medication such as Tylenol 3s.  Further, Mr. Swieczko has been
at risk in the past of medicating himself with alcohol, although he appears at
this point to have that risk under control.

[44]        
Mr. Swieczko and his partner, Ms. Philips, have a child who is
just over one year old now.  While providing both of them a great deal of joy, this
has resulted in two complicating factors because each is suffering from chronic
pain from the Accident.  The first is that, given Mr. Swieczko’s demanding
career, which requires that he must utilize (at this point) all of his stamina
to maintain, he has become more limited in what time and activity he can devote
to his daughter.  However, the evidence is clear that Ms. Philips has been
and still is unable to do several necessary tasks associated with housekeeping
and child care – such as physically lifting and holding their child.  Thus, up
to now Mr. Swieczko has shouldered more of those tasks than he would have,
which apparently limits the downtime his neck and back need to recover from
strain.  This in turn has required more pain medication and led to frustration.

[45]        
It must be recognized that this state of affairs is costing Mr. Swieczko
psychologically.  He is far less able to socialize and enjoy family get-togethers
– or physical activity that he enjoyed before the Accident.  Thus, Mr. Swieczko
is struggling with frustration and emotional despondency from time to time as
he contemplates the immediate future, wherein he may not be able to be an
active participant in his daughter’s physical recreational life.  It was clear
from Mr. Swieczko’s evidence that he was taken aback by receiving his poor
prognosis in relation to living relatively pain-free and being able to do what
he did before.  In particular, he had ambitions of participating in such
physical activities as karate with his daughter as she matures.  He is now very
unlikely to be able to do this.

[46]        
Thus, Mr. Swieczko’s general enjoyment of life has been severely
impacted by the Accident.  He does appear to be a fairly resilient and
determined individual and is likely to engage in any program available to him
to increase his function and potentially reduce the pain he endures from
forcing himself to work long hours or look after his daughter through pain – but
it is likely going to take him several years to ameliorate his current
situation.

[47]        
Mr. Swieczko had no pre-existing symptomology, and no physical
restrictions on either his ability to work at either a medium to heavy laboring
job or a sedentary one, such as the job he held at the time of the Accident in
October 2011.

[48]        
The evidence is clear from the three expert reports filed by:  Dr. McKensie;
Dr. Stelzer-Chilton; and Jodi Fischer, a registered occupational therapist;
that Mr. Swieczko is no longer capable of engaging in the heavier-strength
work categories that he used to rely on when in his early 20s, and which tided
him over when he could not get or keep jobs closer to his dream job.

[49]        
Mr. Swieczko has worked almost continuously since the Accident,
except when laid off (a not infrequent occurrence) and when he took paternity
leave.

Non-Pecuniary Damages

[50]        
The plaintiff and defendant have provided several decisions to assist
the Court in the assessment of non-pecuniary damages.  The cases provided by
the defendant place Mr. Swieczko in the $40,000 to $50,000 range.  I find
that, compared to the present case, three specific cases relied on and outlined
by the defendant were significantly less serious in the impact the ongoing pain
and discomfort reported had and would have on the lives of the plaintiffs.

[51]        
The cases relied upon by the plaintiff seem closer to Mr. Swieczko’s
actual situation.  The plaintiff referred to several cases in which non-pecuniary
damages ranged around $90,000. Stapley v. Hejslet, 2006 BCCA 34, set
out a list of considerations in assessing general damages.  They are:

[46]

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering;

(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

The most significant factor in this case making the
assessment of general damages suggested by the plaintiff more appropriate than
that suggested by the defendant is the severity and chronicity of pain, which
combines with Mr. Swieczko’s increasing emotional struggle over the
impairments to his family, marital and social relationships.  Adding to this is
Mr. Swieczko’s stoicism, which, in this case, has meant he has and
continues to work longer and harder to achieve his career goals, but at a
significant cost in pain and resort to strong medications.

[52]        
I assess his non-pecuniary damages at $90,000.

Past Income Loss and Special Damages

[53]        
The parties agree to past income loss at $2,766.45 net.

[54]        
The parties agree to special damages in the amount of $2,709.47.

Future Care

[55]        
The parties are $4,000 apart on future care.  The defendant accepts some
of the recommendations of Ms. Fisher and agrees to sessions with a kinesiologist
at a cost of $1,000, but makes no submissions on the need for an Obusform back
support and significant medication costs.  In my view, the plaintiff’s submissions
on these costs are reasonable on the evidence; that is, replacing the Obusform
every four to five years to age 75 and medication costs over that period,
which, after considering a deduction for present day valuation, I award $5,000.

Loss of Housekeeping Capacity

[56]        
There is no doubt that since the Accident, Mr. Swieczko has had to
assume most of the housekeeping tasks involving lifting, bending, doing dishes,
or bathing the couple’s daughter because of Ms. Phillips’ injuries.  This
has caused him to feel more pain, take more medications, and feel more helpless
because he cannot always do what needs to be done.  Before the Accident, Mr. Swieczko
split housekeeping chores with Ms. Philips and was very helpful to his
mother with things like moving.  Now, the couple is unable to keep their home
as clean and tidy as it was before the Accident.  In addition, as in the case
of just before they brought home their baby daughter, Mr. Swieczko’s
mother came and cleaned the apartment.

[57]        
In my view, much of this issue should be dealt with in Ms. Philips
action for her loss of housekeeping capacity.  I have factored the problem of
the physical and emotional toll of the loss of housekeeping capacity on Mr. Swieczko
into the award for general damages.

[58]        
However, dealing with just the need for family help with heavier
parenting and housekeeping chores in the future, I award $6,000.

Future Loss of Earning Capacity

[59]        
The principles to be applied in assessing loss of earning capacity were
articulated by the British Columbia Court of Appeal in Perren v. Lalari,
2010 BCCA 140 at para. 32:

A plaintiff must always prove, as was
noted by Donald J.A. in Steward, by Bauman J. in Chang, and
by Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss. If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown. The former approach will be more useful when the loss is more
easily measurable, as it was in Steenblok. The latter approach will be
more useful when the loss is not as easily measurable, as in Pallos and
Romanchych. A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment. That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss.

[Emphasis by Garson J.A.]

[60]        
A very useful discussion of several of the cases most often cited in
relation to an analysis of loss of earning capacity once it is determined to be
substantially possible is also to be found in Perren at paras. 11
and 12:

Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393, 6 B.C.A.C.
314, was cited by Finch J.A. in Pallos. In Kwei, where it was not
possible to assess damages in a pecuniary way as was done in Steenblok,
Taggart J.A., speaking for the Court, held that the correct approach was to
consider the factors described by Finch J., as he then was, in Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353. Mr. Kwei had suffered a
significant head injury with significant permanent sequelae that impaired his
intellectual functioning. However, both before and after the accident, he
worked at a variety of low paying jobs, thus making it difficult for him to
demonstrate a pecuniary loss. Mr. Justice Taggart cited the Brown factors
with approval:

[25] The trial judge, as I have said,
referred to the judgment of Mr. Justice Finch in Brown v. Golaiy. Future
loss of earning capacity was at issue in that case. It stemmed from quite a
different type of injury than the injury sustained by the plaintiff in the case
at bar. But I think the considerations referred to by Mr. Justice Finch at
p. 4 of his reasons have application in cases where loss of future earning
capacity is in issue. I refer to this language at p. 4 of Mr. Justice
Finch’s judgment:

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

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

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

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

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

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

[61]        
I am satisfied that the evidence establishes a real and substantial
possibility that the plaintiff will suffer a future loss of income as follows:

a)             
The plaintiff has a significant level of chronic pain, which centers
around sitting and bending.

b)             
His current job and career path require a great deal of concentration
and significant overtime from time to time.  His job is essentially sedentary.

c)              
The plaintiff now takes significant amounts of pain medication,
including Tylenol 3, especially when needing to do prolonged overtime.  As a
matter of ordinary human experience and common sense, a person’s ability to
tolerate chronic pain diminishes with age.

d)             
There was medical evidence in this case that the effectiveness of small
doses of pain medication also diminishes overtime.  This accords with this
judge’s understanding gained from hearing such evidence in several similar
personal injury/chronic pain cases.

e)             
The plaintiff will not be able to work at the more physically demanding
jobs that he once did – to fill in when laid off from working in his current
industry.  His current industry is marked by low job security and high
turnover.

[62]        
All of these factors lead to a real and substantial possibility that the
plaintiff will not be able to sustain his current employment.  He may lose his
current job or have to quit because his chronic pain and increased pain
medication make him less able to be as successful as he has been.  He has been,
from time to time, unable to do as much overtime as required.

[63]        
In addition, he has other commitments that are of great importance to
him; for example, being a committed and present parent, which requires activities
that increase his pain and take a toll on his endurance.

[64]        
He is far less able than he would have been, had the Accident not
occurred, to balance his parental obligations and significant work obligations.
All of this is exacerbated by the fact that the plaintiff has had to assume
many housekeeping and parental duties that he would have been able to share
with his spouse, but she is significantly more injured than him.  Absent the
accident, he might have expected that from time to time when he needed to work
prolonged overtime his spouse and co-parent could pick up the slack.  That
option is now less available than it would have been.

[65]        
Overall, the plaintiff is far less able to weather the vicissitudes of
available employment opportunities with both different jobs and those in his
current career, than before the Accident.

[66]        
However, I consider that the plaintiff appears to be resourceful,
motivated and hard-working, such that he is unlikely to remain unemployed in
the near future and could also retrain should he need to.  He has shown an
ability and willingness to do this in the past, including after the Accident.

[67]        
With respect to assessment, the plaintiff submits that the appropriate
approach is the "loss of capital asset" approach rather than the
earnings approach.  I accept that the evidence puts the plaintiff in the
category of plaintiffs for whom the capital asset approach to measuring loss of
earning capacity is appropriate.  This is because the plaintiff’s future loss,
although proven, is not easily measurable: Perren at paras. 12 and
32.

[68]        
To determine a loss of future earnings using this approach, I must
consider the four factors from Brown v. Golaiy (1985), 26 B.C.L.R. (3d)
353 (S.C.):

1.         [Whether] the plaintiff has
been rendered less capable overall from earning income from all types of
employment;

2.         [Whether] the plaintiff is less
marketable or attractive as an employee to potential employers;

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

4.         [Whether] the plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market;

[69]        
The approach set out in Pallos v. Insurance Corporation of British
Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.), is appropriate in assessing
losses that are not otherwise easily measurable.  In the circumstances of a
young plaintiff who may be limited by chronic pain throughout his working
lifetime, the assessment of "something between one or two years’ annual
salary" is appropriate: Carlisle v. Vanthof, 2015 BCSC 2427 at para. 172.
In Davidge v. Fairholm, 2014 BCSC 1948, the Court assessed a plaintiff
in arguably similar circumstances with a loss of capacity award based on two
years’ income.

[70]        
The plaintiff submits that two years annual salary is an appropriate
measure of Mr. Swieczko’s loss.  In 2013, the plaintiff earned $44,569.  The
plaintiff submits, and I accept, that a loss of capacity claim in the amount of
$88,000 is fair and reasonable in light of Mr. Swieczko’s young age and
the severity and likely permanence of the chronic pain condition he has
suffered.

[71]        
In summary, I award the following:

[72]        
Costs follow the event.

KOENIGSBERG J.