2008 BCSC 1019 Wilby v. Hyatt

Before: The Honourable Mr. Justice Josephson

Reasons for Judgment

Counsel for Plaintiff	D. R. Greig
Counsel for Defendants	T. E. G. Murphy
Date and Place of Trial/Hearing:	June 2 – 6, 2008
	New Westminster, B.C.

[1] The 32-year-old plaintiff was driving on the Connector highway from Big White near Kelowna on March 17, 2006. She was returning home from an annual family ski and snowboarding trip. In slippery conditions, the defendant’s tractor trailer unit came into collision with the rear and side of the plaintiff’s vehicle. As a result of the collision, the plaintiff suffered soft tissue injuries, which still have some significant affect on her life over two years post-accident. Her brother and his fiancé were passengers in her vehicle. They suffered minor soft tissue injuries that healed relatively quickly.

[2] Liability and quantum of damages are in issue.

[3] In many respects this is an ideal plaintiff: she is fit, athletic, intelligent, successful, has positive life goals and is powerfully motivated to recover as much of her former active and healthy lifestyle as is possible. She has been determined to continue with her work and life while suffering pain and discomfort, when many would have yielded and retreated. Despite that strong determination and effort since the accident, she remains significantly short of her goal of enjoying her pre-accident quality of life.

Liability

[4] The evidence of the three occupants of the plaintiff’s vehicle is simple, straightforward and consistent. After travelling over a rise approaching the summit, they encountered a single line of stalled vehicles in slippery conditions. The plaintiff stopped at the rear of that line.

[5] Shortly thereafter, the plaintiff observed the defendant’s tractor trailer appear over that same incline and approach at a speed that caused her to exclaim in alarm. Her brother in the right rear passenger seat looked behind him in response and observed large wheels bearing down on them in an imminent collision. The trailer behind the tractor had jackknifed to its right, bringing it into a collision course with the plaintiff’s vehicle. He yelled “duck” and shortly afterwards there was a significant collision. Ms. Kirby, the passenger in the front right passenger seat, offered evidence consistent with that of the plaintiff and the plaintiff’s brother.

[6] The defendant described quite a different scenario. Like the occupants of the plaintiff’s vehicle, he too observed some stopped vehicles, a situation he had been expecting since receiving a radio call from fellow truckers shortly before. However, his evidence is that he decided that it was safe to pass on the open left passing lane. He described the plaintiff’s vehicle as moving forward in the slow right hand lane, but at a speed less than his. As he was about to pass, the plaintiff’s vehicle suddenly and without warning turned into his vehicle, colliding with his cab. It then slid along the side of the trailer, which had jackknifed slightly as a result of the collision.

[7] Mr. Sdoutz, an engineer, offered expert opinion evidence that the tractor trailer had been out of control, with the trailer rotating counter clockwise prior to the collision, consistent with the evidence of the plaintiff and her passengers.

[8] I find the accident occurred as a result of the negligence of the defendant in failing to keep his vehicle under control in slippery conditions for these reasons:

1. The evidence of the plaintiff and her two witnesses was believable, consistent with each other and consistent with the nature of the damage to her vehicle.

2. Their evidence was not shaken in a thorough testing cross-examination.

3. Their evidence is supported by expert opinion evidence of engineer Mr. Stoudtz. His evidence was logical and appealed to common sense. A proper cross-examination revealed no weaknesses of any significance. I accept his evidence.

4. The defence theory that the plaintiff suddenly turned into the defendant’s path without warning is contrary to logic and common sense.

5. The defendant as a witness was impatient, dogmatic and almost haughty. While he appears to believe his evidence, I find his recollection to be a reconstruction clouded by the belief that he could not have been at fault. I do not accept his recollection as reliable.

6. The defendant made statements shortly after the accident to the father of the plaintiff, who arrived at the scene shortly after the accident, more consistent with the plaintiff’s theory. The defendant stated words to the effect that: “I’m the one who hit your daughter and I’m very sorry about what happened”. The defendant also stated that it was “a good thing” that the contact was with the trailer” and he “was not able to stop in time and the trailer came around when he tried to get around her.” Certainly, he did not state, as one would have expected, words to the effect that there was nothing he could have done as the plaintiff suddenly turned into the path of his tractor.

[9] I find that the accident occurred as described by the plaintiff and her two passengers. The “contradictions” pointed to by the defence are trivial pre-accident inconsistencies that one would expect from honest witnesses attempting to recall events of no particular relevance. The plaintiff, I find, brought her vehicle to a complete stop behind a line of vehicles that were also stopped due to slippery road conditions. The defendant approached over the rise at a speed and in a manner in which he could not bring his vehicle under control before reaching the plaintiff’s vehicle. He chose to attempt a pass on the left in a manner that caused his trailer to jackknife to his right, striking the plaintiff’s vehicle.

[10] The plaintiff has proven that the accident occurred solely as the result of the negligence of the defendant.

Non-Pecuniary Damages

[11] This was a significant collision resulting in approximately $12,000 in damage to the plaintiff’s vehicle.

[12] Prior to the accident, the plaintiff lived a very active and positive lifestyle. She was exceptionally athletic, engaging in sports to a very high level, including competitive skiing, track, rugby, basketball, volleyball, snowboarding, kickboxing, “hot yoga” and other activities. Professional photographs were taken of her shortly before the accident intended to promote a yoga program. Those photographs reveal a remarkable range of motion in her entire body. She has what is known as hyper-mobility.

[13] As a result of the accident, her range of motion is significantly limited from pre-accident levels. As will be seen in the evidence of Dr. Shuckett, that hyper-mobility may well explain why she suffered more severe soft tissue injuries than those suffered by her two passengers.

[14] The plaintiff had been involved in two previous minor motor vehicle accidents. She had recovered completely from these minor accidents by the time of the accident in issue.

[15] The plaintiff’s evidence, which I accept, is that she was “out of it” for many days after the accident and didn’t work for about three weeks. Her symptoms included headaches, a stiff neck, stiff shoulders, insomnia, anxiety and pain in areas including her upper back, thoracic area, lower back, buttocks and hips. She also suffered some numbness and parasthesia in her arms and legs.

[16] She followed an aggressive course of treatment with a physiotherapist, massage therapist and chiropractor.

[17] The ongoing pain and discomfort limited her previously active lifestyle to the point that she understandably suffered from temporary depression, affecting her mood and her ability to focus and causing difficulties with sleep patterns.

[18] On one occasion, the plaintiff collapsed in her backyard and was unable to use her legs. Her fiancé found her and assisted her to a couch.

[19] Sitting or standing for any length of time results in pain and discomfort. She remains unable to engage in most pre-accident activities, but did attempt snowboarding more recently. Despite performing that particular activity at an unsatisfactory, non-aggressive level, she was left in pain.

[20] She remains unable to lift objects such as a desktop computer and unable to carry laundry from the basement. She returned to work earlier than most others would have in the circumstances because of her determination not to let the injuries impede her lifestyle any more than necessary. Yet she continues to suffer with sitting or standing for prolonged periods during presentations or with travel. She also requires assistance with moving and setting up presentation equipment.

The Medical Evidence

[21] Dr. Rhonda Shuckett was an impressive witness. She is a highly qualified rheumatologist, with a sub-specialty in internal medicine focusing on soft tissue injuries. Dr. Shuckett appears to have been the first to accurately diagnose the problem as being in the sacroiliac area.

[22] She expended considerable time interviewing and examining the plaintiff. She found the plaintiff well motivated, positive, fit and committed to recovery. She found no evidence of pain magnification or symptom exaggeration. All tests for non-organic responses were negative. She found the plaintiff to be hyper-mobile. While the plaintiff, for example, could still touch the floor while standing, before the accident she could place the palms of her hands on the floor. As well, she noted “very abnormal dynamics” in returning to a standing position, something not noted by Dr. Schweigel.

[23] She diagnosed the problem as being with the sacroiliac joint, a joint located between the tail bone and the hip. Ligaments cross over the sacroiliac and can be stretched in a motor vehicle accident, particularly if a foot is pressed on a brake pedal at the time, which can cause the symptoms of pain experienced by the plaintiff. While not certain, Dr. Shuckett was of the opinion that the plaintiff’s hyper-mobility may have exacerbated the injury. This type of injury is difficult to treat when, as in this case, recovery has not occurred. Medicines are not effective as the sacroiliac area does not have a rich blood supply.

[24] Because the plaintiff’s symptoms persisted as long as they did, Dr. Shuckett’s prognosis was “guarded”. However, she recommended a “positive proactive” approach through aggressive physiotherapy by one particular physiotherapist, an approach enthusiastically adopted by the plaintiff. The plaintiff’s considerable effort in this regard has resulted in some diminution in pain and some intermittent improvement, causing Dr. Shuckett to alter her diagnosis from “guarded” to “uncertain”. There appears to be little prospect of a complete recovery.

[25] I do not place great weight on the evidence of Dr. Schwiegel, a neurosurgeon retained by the defence for an independent medical examination. Dr. Schwiegel does not possess the same degree of expertise as does Dr. Shuckett in this type of injury. He did not diagnose the involvement of the sacroiliac joint in the symptoms, though now agrees that may be the case. Put simply, I prefer the expert opinion evidence of Dr. Shuckett where it conflicts with that of Dr. Schwiegel.

[26] In summary, as a result of these soft tissue injuries, the plaintiff has gone from a gifted and active athlete to a person unable to engage in sports and other activities that were a large and important part of her life. It has affected her personal relationships. For example, family and friends now see her retreat to the sofa in pain after a family dinner. Only her strong will and determination has led to some improvement in her symptoms with aggressive physiotherapy. Her future remains “uncertain”. After the expiration of this much time and effort with only modest improvement, it may well be that significant symptoms will continue in the foreseeable future.

[27] After a review of the authorities cited, I fix non-pecuniary damages at $48,500.

Past Loss of Income

[28] Put simply, the plaintiff is a successful and valued commissioned sales person in the field of software enabling businesses to track inventory. The work can involve considerable travel, which triggers an increase in symptoms.

[29] As difficult as it may be to measure this loss, it has been real. The plaintiff could not perform to her usual levels, was unable to perform some of the physical tasks demanded of her and was absent with great frequency for ongoing medical diagnosis and treatment. Only her personal commitment to this occupation saw her return to work within one month, though to a less effective level. Because of her lowered focus, she had her superior double check her work and errors were found.

[30] The plaintiff claims the loss to be $20,000 in this regard; the defendant claims it to be $7,500.

[31] Mr. Kevin Turnbull , a chartered accountant and economist, offered some useful opinion evidence regarding the calculation of her actual loss. Because of a change from straight commission for the first half of 2005 to salary plus a lower rate of commission thereafter, he made appropriate adjustments taking this factor into consideration. He calculated a loss of some $23,000, not including any loss in 2008 to the date of trial.

[32] Mr. Turnbull’s evidence is not contradicted and was not successfully challenged in proper and testing cross-examination.

[33] The plaintiff’s claim in this regard is reasonable. I award damages for past loss of income at $20,000.

Loss of Earning Capacity

[34] The plaintiff’s claim under this heading is advanced on the basis that her capacity to earn income has been diminished by the injuries received in the accident, consistent with the approach mandated by D’Amato v. Badger, [1996] 2 S.C.R. 1071 at ¶53.

[35] As was held in Parypa v. Wickware, 1999 BCCA 88, this is not a precise or mechanical exercise. At ¶63, Cummings J.A. stated:

This passage makes clear the principle that it is not the lost earnings themselves that must be compensated, but loss of earning capacity as a capital asset that requires compensation.

Cummings J.A. then quoted with approval the following passage from Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 at 59 (C.A.):

Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning capacity.

[36] Huddart J.A. expressed a similar sentiment in Rosvold v. Dunlop, 2001 BCCA 1 at ¶8:

Where a plaintiff's permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation. What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset.

[37] The factors to be considered in assessing this loss are set out by Taggart J.A. in Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.) as follows:

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.

Huddart J.A. accepted these factors as the appropriate ones to consider in Rosvold.

[38] In weighing these factors, the court must take into account all substantial possibilities and give them weight according to how likely they are to occur in light of all the evidence: Parypa.

[39] Where, as here, there is a partial disability, the analysis is that set out by Taylor J.A. in Ilic v. Fleetwood (1993), 87 B.C.L.R. (2d) 273 at ¶20-21 (C.A.):

[20] The assessment of loss of future earning capacity in a partially-disabled person who is still able to work presents the courts with much difficulty. It is by no means inappropriate to have regard in making such an assessment to the total present value of the victim's pre-accident earnings to the previously anticipated date of retirement. But when the injury is not such as to disable the victim from future employment a valuation which starts from the assumption that the victim will not work at all in future must be regarded as unreliable. This must particularly be so when alternatives which seem more probable are reflected as contingencies applied in reduction of that figure. Such an approach must, in my view, tend to an over-estimate of the loss.

[21] I would substitute for the trial judge's assessment of loss of future earning capacity a figure arrived at on a judgmental basis which takes into consideration, among other things, (i) the period which the respondent would require for recuperation, re-orientation and job-seeking, (ii) the possibility that she would, in any event even if the accident had not occurred, have ceased work before age 60, (iii) the fact that few jobs that she might find would pay significantly less than did her pre-accident employment, (iv) the likelihood that she will work even with some pain, for which the trial judge gave compensation as part of the non-pecuniary damage award, and (v) the fact that her accident injuries have limited her in the options that she would have when seeking employment in the future.

[40] In this case, the plaintiff’s ability to perform at the high level she would have been performing but for the accident will be compromised by her injuries to some degree, though that degree is difficult to measure. Her determination and outstanding personal qualities will diminish that loss. Regular weekly appointments and daily multiple sessions of recommended exercises diminish her ability to perform to the same high level that she would have been able to perform but for the accident.

[41] Her physical limitations, as well, render her less marketable to potential employers in future. Employment requiring even temporary physical stress will not be available to her.

[42] The period of time that the plaintiff will be so affected is also difficult to measure. The best medical evidence is that her future is “uncertain”. That there has been so little improvement over the long period of time since the accident leads to the conclusion that recovery will more likely be long term than short.

[43] The plaintiff seeks a not unreasonable $20,000 for loss of earning capacity. I award the plaintiff $18,000.

Special Damages

[44] The plaintiff seeks $10,000, including interest, as special damages, though the plaintiff maintains the actual loss was $11,500.

[45] In her desperation to improve her symptoms, the plaintiff received chiropractic, acupuncture and physiotherapy treatments. Her evidence is that these treatments lead to some improvement in pain symptoms, though temporary. The physiotherapy now holds the best hope to foster continued improvement.

[46] Her acceptance of those treatments allowed her to return to work earlier than would have otherwise been the case. Perfect hindsight might have reduced the number of some of those treatments, but I find that her decision to seek those treatments with that frequency was reasonable in all the circumstances.

[47] I award the plaintiff $10,000 as special damages.

Future Cost of Care

[48] Similar treatments will likely be required to foster further improvement or maintain the present modest level of improvement for some years, given her “uncertain” prognosis and slow improvement since the time of the accident.

[49] These treatments cost $350 per month. The plaintiff seeks $10,000, being the present value of the cost of two years of continuing treatment. This amount is both reasonable and appropriate given the evidence presented in this case. While there is a reasonable possibility that this cost will gradually diminish in the future, there is also a reasonable possibility that treatments will be required long past that two year period of time.

[50] I award the plaintiff $10,000 for cost of future care.

Costs

[51] The plaintiff will have her costs, with leave to apply.

Summary

[52] In summary, I find that the accident occurred as a result of the negligence of the defendant and I award the plaintiff damages as follows:

1. Non-pecuniary damages: $48,500.00

2. Past loss of income: $20,000.00

3. Loss of earning capacity: $18,000.00

4. Special damages: $10,000.00

5. Cost of future care: $10,000.00

6. Costs, with leave to apply.

TOTAL $106,500.00

“Truscott J.”

The Honourable Mr. Justice Josephson

Citation:	*Wilby v. Hyatt,*
	2008 BCSC 1019