2008 BCSC 795 Frankson v. Myre

Before: The Honourable Mr. Justice Savage

Reasons for Judgment

Counsel for the Plaintiff:	A.K. Khanna
Counsel for the Defendants:	G. Murphy
Date and Place of Trial:	June 3-5 2008
	Vancouver, B.C.

Introduction:

[1] This is a personal injury action for damages arising out of a motor vehicle collision which occurred on March 13, 2005 at the intersection of Fraser Highway and Highway No. 10 in Langley, British Columbia.

[2] The plaintiff, Shaun Frankson, was driving his 1989 Fort Mustang, travelling south-eastbound on Fraser Highway intending to make a left turn onto Highway No. 10. As he made his turn, he was in a collision with the defendant, Jean R. Myre, who was travelling in a 1999 Ford F250 pick-up, travelling north-westbound on Fraser Highway.

[3] Liability and damages are in issue.

[4] Damages are claimed by the plaintiff under the headings of non-pecuniary damages, future cost of care, delay in education and entering into the work force, loss of capacity, past loss of income, an in trust claim, and special damages.

[5] Special damages are agreed at the sum of $1,624.38. Past income loss is agreed at $6,353.75. All other matters are in issue.

The Plaintiff:

[6] The plaintiff is currently 24 years of age. He was 21 at the time of the accident, single, and enrolled in Douglas College. The plaintiff was enrolled in four courses in pursuit of his business degree. As a result of the injuries suffered in the accident, all of these courses had to be dropped.

[7] Before the accident, the plaintiff was involved in a variety of recreational activities. He played basketball, baseball, football and was a snowboarder. He was also active as a musician in a small band.

The Accident:

[8] The accident occurred between 8:00 pm-8:30 pm on the evening of March 13, 2005. The conditions were dry and visibility was good, as the intersection was well lit.

[9] The plaintiff was driving his 1989 Ford Mustang south-eastbound on Fraser Highway. He intended to make a left turn to proceed north-eastbound on Highway No. 10.

[10] The defendant was driving his employer’s 1999 Ford pickup truck, travelling north-westbound on Fraser Highway. He was intending to proceed through the intersection on Fraser Highway.

[11] The intersection of Fraser Highway and Highway No. 10 was described by several witnesses at trial. It is best depicted in the photograph in Exhibit 1 at Tab 5. The intersection is a large one and well travelled. There are two through lanes in both the north-west and south-east direction on the Fraser Highway along with dedicated left turning lanes and right merge lanes.

[12] On Highway No. 10, at the intersection, there are similarly two through lanes north-eastbound and south-westbound, dedicated left turn lanes and right merge lanes.

[13] The plaintiff’s evidence was that he had stopped at the intersection while the light in his direction of travel was red. He was the first vehicle in the left turn lane. The light turned green and he pulled forward into the intersection. He waited in the intersection for oncoming traffic. The lights went through their cycle and turned to amber. He saw one oncoming vehicle in the middle through lane; that vehicle came to a stop and the light turned red.

[14] The plaintiff testified that he saw no other traffic approaching and proceeded with his left turn. He was completing his turn when struck by the defendant’s vehicle, which had come through a red light. The impact was primarily to the front right of the plaintiff’s vehicle. The vehicle damage was severe and the vehicle was a total loss.

[15] The plaintiff’s evidence was that he saw the defendant’s vehicle shortly before impact but had no chance to take evasive action.

[16] The driver of the vehicle that stopped at the intersection was driven by Jody Segran who was with her husband, Chad Segran, a passenger. They witnessed the accident and gave evidence at trial.

[17] Ms. Segran was driving a Pontiac Sunfire. Ms. Segran’s evidence was that as she approached the intersection the light changed to amber, she slowed and came to a complete stop. There were no cars in her lane in front of her or in the lane to her right.

[18] Ms. Segran’s evidence was that the plaintiff’s vehicle stopped in the intersection signalling a left turn. After she stopped, the plaintiff proceeded with his left turn. As his vehicle crossed the lane of traffic in front of her, Ms. Segran noted that the light had turned red. At that time another vehicle came from the lane to her right. It was travelling at a fast rate of speed and struck the plaintiff’s vehicle.

[19] Ms. Segran’s evidence was that she was travelling at a speed of approximately 50 kmph while approaching the intersection. She was able to come to a normal stop after the light turned amber at the intersection.

[20] The defendant stated that when he saw the light turn amber he was in the position of the fourth vehicle in the right hand lane proceeding north-west on Fraser Highway, as noted in Exhibit 1, Tab 5. The defendant testified that he could have stopped before the intersection. He noted that the light turned amber but did not slow down. His explanation for not stopping or slowing was because of his concern for vehicles behind him. There were none.

[21] Although the defendant had a concern for vehicles behind him, he did not check his rear view mirror or look to the rear to determine if there were any vehicles behind him.

[22] The defendant states that he did not see the plaintiff’s vehicle until just before impact. He explained that his vision was blocked by the vehicle in the lane to his left that had stopped for the amber light.

[23] Carol Ciccone gave evidence as an independent witness to the accident. Mrs. Ciccone turned right off Highway No. 10 and was proceeding to merge with traffic on the Fraser Highway.

[24] Mrs. Ciccone testified that she looked behind her and observed the defendant’s vehicle when the light was green. She did not see the traffic light turn amber and believed that the light was green when the defendant proceeded through the intersection. Her evidence is at odds with the other witnesses’ evidence, including the defendant’s evidence that the light had turned amber well before he approached the intersection.

[25] In my view, given her position near the intersection and her ability to observe the scene, Mrs. Ciccone had the least favourable vantage point from which to observe the events. In the circumstances, I give little weight to Mrs. Ciccone’s evidence.

[26] The defendant adduced evidence that there was an advance green turn signal at the intersection. The plaintiff gave evidence that he did not see an advance green allowing for a left hand turn. Ms. Segran, who is familiar with the intersection, gave evidence that the advance green will not trigger if only one vehicle is sitting at the intersection. The advance green at that intersection requires three vehicles.

[27] Ms. Segran has traveled the route many times over the past four years as she picks up her husband every day from work at approximately the same time, between 8:00 pm-8:30 pm. I was impressed with Ms. Segran as a witness and accept her evidence that an advance green light was not triggered if only one vehicle was present at the intersection. I accept her evidence that the light had turned red before the defendant entered the intersection.

Liability:

[28] It is the plaintiff’s submission that the defendant was 100 percent responsible for the subject accident. The plaintiff argues that he was entitled to proceed on the assumption that all other vehicles will do what their duty is, namely observe the rules regulating traffic.

[29] The plaintiff relies on a decision of the British Columbia Court of Appeal in Kokkinis v. Hall (1996), 19 B.C.L.R. (3d) 273 (C.A.). Kokkinis is a case with similar circumstances to this one. The accident in Kokkinis occurred at Granville and King Edward Street in Vancouver, a similarly busy and large intersection, when the plaintiff was turning left and was struck by the defendant who proceeded through the intersection when he should have stopped.

[30] The Court in Kokkinis noted:

9 This discussion, however, detracts from the more important question of law, which is whether Mrs. Kokkinis was on one hand entitled reasonably to assume that Mr. Hall would stop before entering the intersection or on the other hand, whether she can be faulted for failing to see his van “until it was on top of her”, i.e. constituted an immediate hazard. In this regard, Mr. Johnson cites Feng v. Graham [1988] 5 W.W.R. 137 (B.C.C.A.), (not a left turn case), for the principle that the plaintiff’s entitlement to assume that other traffic will obey the law, is “subject to the proviso” (in counsel’s phrase) that where it is apparent or should be apparent that an oncoming driver is not going to yield the right-of-way, then at that point the other driver must act reasonably and cannot simply proceed into the collision, as it were. At the least, Mr. Johnson says, it was open to the trial judge to find that in the circumstances, Ms. Kokkinis failed to exercise reasonable care for her own safety and the safety of others, and that she must therefore bear some responsibility for the accident.

10 I must say this argument has given me pause; but ultimately I resolve it by asking whether in law Mrs. Kokkinis 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 Mr. Hall would stop, and because she checked cross-traffic, would in my view subvert the duty on Mr. Hall 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 25th 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.

11 Accordingly, notwithstanding the principle (which I do not doubt) that questions of apportionment are generally questions of fact with which we should interfere only in exceptional cases, I would conclude that the issues I have referred to are ones of law and that the learned trial judge erred in law in placing too high a standard on the plaintiff and in failing to consider the assumptions she was entitled to make. I would not apportion any of the fault to her and would apportion 100 percent to Mr. Hall.

[31] The defendant raises s. 174 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. The defendant says that under the Motor Vehicle Act, the left turn driver is in a servient position and must yield to the straight through driver where the straight through driver is so close that he constitutes an immediate hazard.

[32] The Court of Appeal in Kokkinis comments on s. 176 of the Motor Vehicle Act (now. s. 174) as follows:

7. A more recent case from this Court along similar lines is Brucks v. Caslavsky, (19 April 1994) Vancouver Registry CA016390 [reported 4 M.V.R. (3d) 278], which apparently was not cited to the trial judge. There, this Court rejected the argument that the onus placed by s. 176 of the Act is “absolute” and that in deciding whether an oncoming car constitutes an “immediate hazard”, a left- turning driver must consider the possibility that any oncoming motorist may intend to speed through an intersection and disobey the traffic signal. Taylor, J.A. for the Court quoted the well-known statement of principle of Lord Atkinson in Toronto Railway v. King, [1908] A.C. 260, at 269:

…traffic in the streets would be impossible if the driver of each vehicle did not proceed more or less on the assumption that the drivers of all other vehicles will do what it is their duty to do, namely, observe the rules regulating the traffic of the streets.

[33] The defendant cites the decision of the Court of Appeal in Pacheco (Guardian ad litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.). In my view this decision is distinguishable as by the exercise of reasonable care; the defendant could have brought his vehicle to a stop as did Ms. Segran instead of passing her stopped vehicle and proceeding into the intersection against a red light.

[34] The defendant testified that he was approximately 30 feet away from the intersection when he saw the amber light. This estimate of distance, however, is inconsistent with where he places his vehicle in the photograph in Exhibit 1, Tab 5. In that photograph, he indicated his vehicle being about the same distance from the intersection as the fourth vehicle in the right hand lane proceeding north-west on Fraser Highway.

Damages:

[35] There is no real disagreement between the parties concerning the extent of injuries suffered by the plaintiff.

[36] The injuries suffered were general body trauma, bruising and soreness, and soft tissue injuries of the neck, chest, wrist and knee. The most significant ongoing injury is that to his back.

[37] At the accident scene, the plaintiff was immediately in pain and had difficulty breathing. He had pains in the front of his chest, left knee, and right wrist. He had trauma to his head.

[38] Following the accident, he was transported by ambulance to Langley Memorial Hospital. The hospital was busy and the plaintiff was held in a holding area of the emergency ward as no separate beds or rooms were available. The next day he was released into the care of his parents; the plaintiff’s mother is a registered nurse.

[39] For the first two weeks following the accident, the plaintiff was substantially bedridden. He was in pain and was on two painkillers, Tylenol 3 and Advil, as well as a muscle relaxant, Flexeril.

[40] During the first three days, Mrs. Frankson, the plaintiff’s mother, essentially provided him nursing care. This entailed checking his pupils to see if they were dilated, checking his abdomen to see if there was any unusual swelling, assisting him with medication use, and feeding him.

[41] Over the ensuing month, the plaintiff was largely sedentary, staying most of the time in the house and unable to move freely because of soreness. By mid April the injuries slowly began to resolve such that the plaintiff was able to commence a course of physiotherapy treatment. The treatment initially consisted of passive treatment and thereafter turned to a more active rehabilitation program.

[42] Ten months after the accident, there were ongoing problems to the neck, back and left knee and the other injuries were resolved. The back injury was and continues to be the most significant injury.

[43] Three years post-accident, the plaintiff continues to have significant pain from his back. Any prolonged activity, such as sitting in a lecture hall or traveling in a sitting position over 45 minutes causes soreness and pain. The plaintiff is not recommended to pursue recreational activities of a physical nature such as football, which he had formerly done.

Non-pecuniary Damages:

[44] The plaintiff seeks an award for non-pecuniary damages of $55,000 relying on the decisions in Peterson v. Ram, 2008 BCSC 252, and Kahle v. Ritter, 2002 BCSC 199. The defendant suggests an appropriate range of damages of $30,000-$35,000 relying on Weinmuller v. Tait, 2006 BCSC 416, Bains v. Prasad, 2005 BCSC 1694, and Amberiadis v. Groves, 2005 BCSC 1270.

[45] After reviewing the authorities cited by the plaintiff and the defendant, in my opinion an appropriate award for non-pecuniary damages is $45,000.

Future Cost of Care

[46] The plaintiff, as part of his rehabilitation, undertook a fitness regime to strengthen his back. I would allow his claim for $2000 as an allowance for the future cost of care.

Past Income Loss:

[47] The parties agreed that the past income loss is $6,353.75.

Delayed Entry into Workforce:

[48] The plaintiff contends that this accident forced his withdrawal from four courses at Douglas College and he lost a semester. The defendant does not dispute that. The plaintiff further alleges that because he was forced to withdraw from those courses, he was delayed a year in entering the career path that he had chosen. The defendant disagrees. In assessing his claim, I am mindful of the decision of the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458. Major J. said as follows:

27. Hypothetical events (such as how the plaintiff’s life would have proceeded without the tortious injury) or future events need not be proven on a balance of probabilities. Instead, they are simply given weight according to their relative likelihood: Mallett v. McMonagle, [1970] A.C. 166 (H.L.); Malec v. J. C. Hutton Proprietary Ltd. (1990), 169 C.L.R. 638 (Aust. H.C.); Janiak v. Ippolito, [1985] 1 S.C.R. 146. For example, if there is a 30 percent chance that the plaintiff’s injuries will worsen, then the damage award may be increased by 30 percent of the anticipated extra damages to reflect that risk. A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Schrump v. Koot (1977), 18 O.R. (2d) 337 (C.A.); Graham v. Rourke (1990), 74 D.L.R. (4th) 1 (Ont. C.A.).

[49] In my view while the plaintiff had determined to set upon a course of action that would lead to his admission to Royal Roads University there are a number of contingencies with respect to the time that it would take including his probable courseload, the history with which he pursued his academic studies up to that point, and his involvement with other activities. There are also contingencies regarding what he might have earned following graduation. Considering all of these factors, in my view, an award of $20,000 is reasonable.

“In Trust” Claim:

[50] The law of “in trust” claims is governed by the principles set out by the British Columbia Supreme Court in Bystedt (Guardian ad litem of) v. Bagdan 2001 BCSC 1735 at para. 180, aff’d 2004 BCCA 124.

[51] The six relevant factors are:

(a) the services provided must replace services necessary for the care of the plaintiff as a result of a plaintiff’s injuries;

(b) if the services are rendered by a family member, they must be over and above what would be expected from the family relationship;

(d) where the opportunity cost to the care-giving family member is lower than the cost of obtaining the services independently, the court will award the lower amount;

(e) quantification should reflect the true and reasonable value of the services performed taking into account the time, quality and nature of those services;

(f) the family members providing the services need not forego other income and there need not be payment for the services rendered.

[52] An example of the application of the factors in Bystedt occurs in Dufault v. Kathed Holdings Ltd., 2007 BCSC 186. In Dufault, the services provided by the plaintiff involved toileting, bathing, transfer from wheelchair to shower and toilet, laundry, cooking, feeding, and taking the plaintiff to visit health care providers.

[53] In his analysis, Cohen J. sets out the factors. He reviews the various “in-trust” decisions at paragraphs 175 and 176, and concludes that the services provided to the plaintiff did not go above and beyond what would be expected to be performed out of a sense of love, friendship or family duty. In the result, the “in trust” claim in Dufault was dismissed.

[54] The “in trust” claim in the case at bar arises from the care provided by the plaintiff’s mother, Mrs. Frankson, to the plaintiff during the time period following the accident.

[55] In the circumstances here, even if services went beyond that which might be performed out of a sense of love, friendship or family duty, which in my opinion they did not, the plaintiff’s mother suffered no opportunity loss, that is, she did not suffer any economic loss as a result of caring for the plaintiff since she was off work on medical leave and under full salary.

[56] This is not to belittle the services performed by Mrs. Frankson or to suggest that they were not important or necessary to the plaintiff’s recovery. Since the services do not exceed what was expected from a family relationship, and there was no opportunity loss, no award can be made under this head.

Special Damages:

[57] The parties agreed to special damages at the sum of $1,624.38.

Loss of Opportunity/Capacity:

[58] The plaintiff argues that as a result of his injuries certain occupations are no longer available to him. It is argued that he could not resume heavy labour. The plaintiff is young. He has embarked on a program leading to a B.Com. degree and is achieving excellent results.

[59] I was very impressed with the plaintiff’s manner and consider it unlikely that a physical labouring occupation will ever represent the apex of his earning capacity.

[60] I have considered the decisions in Rosvold v. Dunlop, 2001 BCCA 1, Tabrizi v. Whallon Machine Inc. (1996), 29 C.C.L.T. (2d) 176 (B.C.S.C.), and the decisions referred to therein. In my view his income-earning capacity has not been impaired and there is no “real possibility” of future income loss.

Summary:

[61] The damages awarded are as follows:

Non-Pecuniary Damages	$45,000.00
Future Cost of Care	$ 2,000.00
Past Income Loss	$ 6,353.75
Delayed Entry into Workforce	$20,000.00
Special Damages	$ 1,624.38
TOTAL:	$74,978.13

Costs:

[62] Costs would normally follow the event at Scale B. If there is any issue as to costs the parties may seek to address the court.

“The Honourable Mr. Justice Savage”

Citation:	*Frankson v. Myre,*
	2008 BCSC 795