Before: The Honourable Madam Justice Russell

Reasons for Judgment

Counsel for the Plaintiff	D.B. Hanna
Counsel for the Defendants	C. Thiessen
Date and Place of Trial:	June 9 – 13, 16 and 19, 2008
	Vancouver, B.C.

[1] On the morning of December 3, 2003, the plaintiff Ryan Bradley was cycling to his first day at a new job and the defendant Dilbahaar Bath was leaving a gas station after filling up his Mercedes. Unfortunately, a collision between the two ensued. In this personal injury action brought by Mr. Bradley, Mr. Bath disputes both his liability for the accident and the quantum of damages claimed by the plaintiff. The corporate defendant Daimler Chrysler Services Canada Inc. is the legal owner of the vehicle which was leased to Mr. Bath.

Background

[2] Mr. Bradley was born and raised in Milton, Ontario where his father is a teacher and clock maker, and his mother is a radiologist. He graduated from high school in 1998. From May 2000 until March 2003, he worked with his father making clocks. In March 2003, he moved to Vancouver with his long-time girlfriend. Two weeks after the move, he found a job as a carpenter at West Isle Design, where he earned $16 per hour. He was 23 years old at that time.

[3] Mr. Bradley was active and fit, and participated in a variety of sports. He played basketball, rode his bicycle over long distances, and was an avid skier. Together with his girlfriend, he often enjoyed long hikes in the forests and walks around the city.

[4] On Wednesday, December 3, 2003, Mr. Bradley was set to begin a new job at Skookum Space Rentals. Compared to his previous job at West Isle Design, the new job offered a significant earnings advancement at $22 per hour, and, as he hoped, new career opportunities.

[5] On the morning of December 3, 2003, Mr. Bradley was riding his mountain bike to his first day at the new job. He was cycling in the easterly direction, towards Cambie St., on the northern sidewalk of SW Marine Drive. He was not wearing a helmet. As he was crossing the exit (western) driveway of the Petro Canada gas station located on the north-west corner of the intersection of SW Marine Dr. and Cambie St., he was struck on the left leg by the front of Mr. Bath’s Mercedes as it was exiting from the gas station onto SW Marine Drive. He was knocked off his bicycle and was thrown approximately 15 feet into the centre lane of SW Marine Drive. The force of the impact was such that Mr. Bradley’s shin tore the licence plate off Mr. Bath’s Mercedes. He landed on his right hip and struck his head against the pavement. He did not lose consciousness.

[6] Although Mr. Bradley suffered significant visually apparent injuries, neither the police nor an ambulance was called. Mr. Bradley staggered to his feet and returned the licence plate to Mr. Bath. After talking to Mr. Bath and receiving his offer of first aid, Mr. Bradley walked away from the accident. His bicycle was not rideable. After several unsuccessful attempts to find a working payphone, Mr. Bradley borrowed a cell phone from a patron at a nearby fast food restaurant and called his boss, who came and picked him up in a truck. At the worksite, an ambulance was called and Mr. Bradley was taken to the Emergency Room at the Richmond General Hospital, where he was tended to. He received sutures in his head and shin. An X-ray of his left tibia was taken, but did not reveal any significant bony injuries. The ER report noted that there was soft tissue injury over the anterior leg and ankle.

[7] Mr. Bradley attended Dr. Tung on December 8, 2003. He had a scalp wound which was “healing nicely”, but his left shin appeared macerated and swollen, and had sutures. He was given a note for two weeks off work and advised to use Tylenol for pain.

[8] When Mr. Bradley returned on December 15, 2003, for suture removal, he was examined by Dr. Kelly at the same clinic. He had stopped using crutches two days prior, but complained of pain in the left ankle. The examination revealed some tenderness, although the lacerations appeared to be healing well. He was diagnosed with ankle sprain and advised to stretch, apply heat, use over-the-counter anti-inflammatory pills, and consider attending physiotherapy.

[9] On January 28, 2004, Mr. Bradley saw Dr. Lipkowitz at the same clinic. He complained of pain and stiffness in the left ankle. Examination again showed tenderness and he was advised to attend physiotherapy and come back for a follow-up.

[10] On February 27, 2004, Mr. Bradley attended Dr. Davidson at the same clinic. The other physicians that he had previously seen were Dr. Davidson’s locums. He still had tenderness of his left shin and ankle. He has not come back to work because of pain in the leg and ankle. In the report to ICBC that Dr. Davidson completed at that time, she noted that Mr. Bradley was unable to work as a carpenter due to the ongoing ankle pain. However, she felt that if there were no stairs or heavy lifting, he could work. Dr. Davidson ordered X-rays, which were taken on March 31, 2004, and did not show any problems with the ankle.

[11] From April 2 to June 24, 2004, Mr. Bradley attended eight physiotherapy sessions. He returned to Dr. Davidson on June 8, 2004, complaining of left leg pain. He reported that he attempted to go for a hike, but was unable to do so due to extreme left leg pain. He also reported cramping in his left leg with driving, which he said did not occur prior to the accident. Examination revealed tenderness along his tibia and he was referred to UBC Sports Medicine Clinic and a bone scan was ordered to look for a fracture. The bone scan was done on June 22, 2004 and diagnosed a possible healing fracture in the distal end of the left tibia.

[12] Mr. Bradley returned to Dr. Davidson on July 16, 2004, again complaining of leg pain. She informed him that he might have a small fracture and advised him to follow up with the sports medicine physician who he was scheduled to see in a few days.

[13] At that point, Mr. Bradley had not been able to return to his job as a carpenter because of leg pain. However, from July 10 to August 25, 2004, he worked as a security guard at the Sylvia Hotel, patrolling the parking lot. He worked a total of 210 hours at $10 per hour. He earned $2,289.15 net of taxes.

[14] On July 19, 2004, Mr. Bradley was examined at the UBC Sports Medicine Clinic by Dr. Mackenzie, who noted tenderness and mild swelling of the left ankle, and a leg length discrepancy. A CT scan was ordered and performed on July 31, 2004. The scan revealed that a small flake of bone had pulled away from the tibia, but was healing. Mr. Bradley was instructed to perform a series of strengthening exercises and a follow-up appointment was scheduled for October 2004.

[15] On August 17, 2004, Mr. Bradley returned to Dr. Davidson for a follow up. He still felt pain in the left leg and examination again revealed tenderness of the ankle. Dr. Davidson recommended a walking splint and referred him to an orthopaedic surgeon. He reported that he was having troubles in his security guard job because he found it very painful to stand and walk. Dr. Davidson agreed that it would be best if he quit the security job, but advised him that it would be fine to do a non-weight bearing job until his ankle healed. On this recommendation, Mr. Bradley resigned from the security guard job on August 25, 2004.

[16] Mr. Bradley returned to Dr. Davidson on September 21, 2004, still complaining of leg pain and soreness along the shin and ankle. Dr. Davidson diagnosed traumatic periostitis, a condition of inflammation of the covering of the bone along the shin. He was advised to follow up with Dr. MacKenzie, along with rest, stretching, and anti-inflammatory pills.

[17] On October 5, 2004, Mr. Bradley returned complaining of upset stomach from the anti-inflammatory pills and was advised to supplement them with a stomach-protecting prescription medication.

[18] On October 21, 2004, Mr. Bradley came back for a follow-up appointment with Dr. Mackenzie. He was using an ankle brace. An MRI scan was arranged for November 2. The scan showed a possible partial tear of the anterior tibiofibular ligament in the ankle. This ligament is one of the lateral structures of the ankle responsible for stability. A possible inflammation of the bursa (a sack of fluid that cushions the ankle joint) was also diagnosed.

[19] Mr. Bradley also saw Dr. Mackenzie on November 2, 2004. He was still using the brace and reported that he was continuing with the stretching and strengthening program. He was encouraged to continue with this rehabilitative program at home and was given a prescription for a topical anti-inflammatory cream.

[20] From November 2004 to April 2005, Mr. Bradley worked for Snowbus, a 54-seater bus that travels between Vancouver and Whistler. He was the on-board host and also did some marketing. Mr. Bradley testified that his earnings from this job were negligible.

[21] On January 28, 2005, Mr. Bradley returned to Dr. Davidson complaining of the same pain, which he reported was worsened by walking, standing, and generally weight bearing. The anterior side of his ankle and the ankle joint were tender. There was also some tenderness in the foot.

[22] On March 3, 2005, Mr. Bradley had another appointment with Dr. Mackenzie. Mr. Bradley continued to report daily stiffness in his foot and ankle. Although he cycled to and from work, he reported discomfort even during this ten minute journey. At that time, Mr. Bradley estimated that he could only do 25-30% of his pre-accident physical activity.

[23] From mid-May to mid-November 2005, Mr. Bradley worked at his old job at West Isle Design. He worked as a carpenter doing stair and railing production part-time and quit when the company wanted him to work full time. He found that he could not work full time because of pain in his leg and foot. Mr. Bradley’s uncontradicted evidence was that he earned approximately $4,500 gross.

[24] On June 9, 2005, Dr. Davidson completed another report to ICBC on Mr. Bradley’s injuries. She summarized the previous CT and MRI scan results and diagnoses and noted that Mr. Bradley continued to experience stiffness and pain while walking and was not able to work as a carpenter. Her “objective findings” were that Mr. Bradley had tenderness in his ankle, Achilles and leg tendons, and the anterior tibia. She indicated that Mr. Bradley had difficulty with prolonged walking or climbing stairs, and could not ski, run, rock climb, or hike.

[25] From July to the end of September 2005, Mr. Bradley also worked three days per week as a lift tower painter in Whistler. He lived in Whistler on those three days and in Vancouver for the remainder of the week. Mr. Bradley’s uncontradicted evidence was that he earned approximately $2,700 gross.

[26] Mr. Bradley returned to Dr. Davidson on September 19, 2005. In addition to complaints of pain in the left leg and ankle, he also reported that the right knee pain that he was experiencing immediately after the accident had come back approximately six months ago. He walked with a limp. On examination, the right knee was not tender, but the leg and ankle were tender and muscles in the left calf atrophied. Mr. Bradley reported that he found it difficult to play sports.

[27] The next visit was on January 16, 2006, at which point Dr. Davidson noted that Mr. Bradley was still symptomatic, but she could find nothing for which surgery would assist. She noted that he was working as a carpenter two days per week because more than that hurt his legs/feet. She referred Mr. Bradley to Dr. Unger, another family doctor.

[28] Dr. Unger saw Mr. Bradley on January 19, 2006. He found tenderness in the shin, decreased range of motion at the left ankle, and some calf muscle atrophy. His diagnosis was periostitis, a chronic condition caused by inflammation of the layer of connective tissue that surrounds bone. Dr. Unger recommended physiotherapy to “evaluate his whole lower chain as he now has R[ight] compensatory pain in his knee”. He also noted that Mr. Bradley “really needs some reassurance that he can increase his activity and that he may always have this pain to some degree but that it won’t impact his life significantly”. Dr. Unger ordered additional x-rays and a bone scan, which were done on January 31 and came back negative.

[29] Mr. Bradley came back to Dr. Unger on February 9, 2006. The focus of that visit was Mr. Bradley’s mental health. Dr. Unger diagnosed Mr. Bradley with chronic depression and made the following notes:

- we had a very long talk today about his mental health— he has recognized destructive patterns in his life that have prohibited him from really progressing and self actualizing— he has missed business opportunities etc—

- his mood is often down and often he is sad -- not always eating well and often not sleeping well

- he has not had any formal counselling or any meds etc in the past but did ask tonight about some psychological intervention

- I also tried to draw the parallel b/t his leg and his behavior surrounding that and his mentall [sic] health issues in general— he seems open to this kind of talk

[30] Dr. Unger provided Mr. Bradley with a list of resources for mental health help and Mr. Bradley indicated that he would pursue counselling.

[31] Mr. Bradley returned to physiotherapy on March 21, 2006, and attended 30 sessions until January 22, 2007.

[32] In April 2006, Mr. Bradley obtained a job as a high-rise window cleaner and worked in this capacity until September 2006. His uncontradicted evidence is that he earned $7,123.00 net of taxes. He then became a contractor for the same company until December 2006, and his uncontradicted evidence is that he earned $3,000 net of taxes and operating expenses.

[33] Dr. Unger saw Mr. Bradley again on April 6, 2006. Mr. Bradley reported that he was getting physiotherapy and exercising and his condition was improving. Mr. Bradley reported that he tried to go back to manual labour but felt too tired after a couple of weeks and thought that he had to give up this kind of work. He also indicated that he tried to get an appointment for some counselling and would continue to do so. Dr. Unger reported that Mr. Bradley had a very positive outlook at that time. However, Dr. Unger’s diagnosis was still of chronic pain.

[34] Dr. Manchanda, a specialist in musculoskeletal pain, examined Mr. Bradley on May 6, 2006, for the purpose of preparing a medicolegal opinion. The contents of that report are discussed below.

[35] Mr. Bradley returned to see Dr. Unger on June 15, 2006, still complaining of pain in his left shin and ankle, and his right knee. Dr. Unger provided a note for more physiotherapy and again discussed chronic pain and disability management with Mr. Bradley.

[36] Dr. Kiraly, a psychiatrist, saw Mr. Bradley on June 16, 2006, for a “mental status examination” requested by Mr. Bradley’s counsel. The contents of his report are discussed below. Three days after he prepared his medicolegal report, on July 13, 2006, Dr. Kiraly sent a note to Dr. Davidson in which he indicated that Mr. Bradley had been “psychologically devastated by the resultant [from the accident] lifestyle changes” and opined that Mr. Bradley was:

… suffering from a post concussion syndrome, which appears to be persistent. He still has headaches, sleep disorder, nightmares and depression,

Judging from collateral informants and Mr. Bradley himself, it appears that there have been some residual cognitive effects.

[37] Dr. Kiraly felt that Mr. Bradley “should have a more detailed assessment and treatment of his neuropsychiatric symptoms.”

[38] On June 29, 2006, Mr. Bradley was examined by Dr. McGraw, an orthopaedic specialist engaged by Mr. Bath’s counsel. The contents of Dr. McGraw’s report are discussed below.

[39] In February and March 2007, Mr. Bradley worked about 10 hours per week doing building maintenance work at the apartment building where his girlfriend was the assistant manager. He was paid $12.50 per hour and earned $775.00 gross.

[40] Since November 2007, Mr. Bradley and his girlfriend have together worked as residential building managers/caretakers in a residential building in East Vancouver. His duties include ensuring the upkeep of the building, looking after the tenants’ concerns, helping with minor electrical, plumbing, and carpentry jobs and other tasks around the building. He earns $14,023 per year net of taxes. This means that to the date of the trial in June 2008, he has earned approximately $8,180 net of taxes at this job. His girlfriend testified that she does approximately 75% of their work.

[41] Dr. Manchanda, examined Mr. Bradley once again on April 2, 2008, for the limited purpose of preparing a medicolegal opinion. The contents of that report are discussed below.

Expert Reports

Dr. Davidson

[42] Dr. Davidson has been Mr. Bradley’s family doctor since the accident. However, her medicolegal report is quite dated as it was prepared on January 25, 2005. She reported Mr. Bradley’s post-accident history in some detail and summarized that he sustained the following injuries:

… fracture of the distal tibia, laceration of his scalp, laceration of his left shin, post-traumatic periostitis of the left shin, a partial tear of his anterior tibiofubular ligament (an ankle ligament) and retrocalcaneal bursitis (a bursa in the ankle/heel area).

[43] She concluded that Mr. Bradley’s injuries did not require surgical intervention and would improve with time.

[44] She reported Mr. Bradley’s personal and vocational status as follows:

Prior to the accident, he was an avid cyclist and skier, on a high level of skill. Dave worked as a carpenter and built/designed his own furniture. This accident has completely changed his social and occupational life. He earned approximately $16/hour with high expectations to make much more with his in the next few years. Now he is struggling to find employment for minimum age, as he is unable to work in his field, as a carpenter.

…

He has had significant impact on his ability to work as a carpenter. He might never continue to perform strenuous weight bearing activities, such as hiking, skiing, or working as a carpenter.

[45] Given that he had been in pain for over a year, she gave a guarded prognosis and suggested that in the future he might develop post-traumatic arthritis of the ankle.

Dr. Mackenzie

[46] Dr. Mackenzie practices sports and musculoskeletal injury medicine at the UBC Sports Medicine Clinic. Dr. Mackenzie saw Mr. Bradley in July, October and November 2004, and in March 2005. His report was prepared on May 4, 2005. He concluded that Mr. Bradley “had reached a plateau with no change in his symptoms for the last five months.” He noted that this was a “significant limitation both on his lifestyle as well as his work”.

[47] He provided the following opinion on Mr. Bradley’s injuries and prognosis:

It is my professional opinion that his injuries are a direct result of the trauma sustained in this motor vehicle accident. Certainly this incident has had an impact on his ability to work and he has had to change his profession. His symptoms have plateaued for the last five to six months in spite of his ongoing attempts at rehabilitation. There is the possibility that he will require further physiotherapy in the future to help him with his rehabilitation. I understand that he is still on a waiting list to see an orthopaedic specialist, although I doubt whether this ankle injury would be something that would require surgery in the future. He has been at this level of discomfort for six months and I suspect that this will continue for an indeterminate length of time. As there has not been any damage to the ankle joint itself, I don’t believe that he will suffer from degenerative arthritis in the future. Certainly the injuries that he has sustained have had a significant impact on his recreational activities, and this is a significant limitation in an active twenty-four year old male. He also, as I have noted, has limitations and discomfort related to activities of daily living. His ankle is painful by the end of the day and this limits him somewhat in his ability to do activities such as grocery shopping and general household activities.

Dr. Manchanda

[48] Dr. Manchanda’s practice is focused on patients with chronic musculoskeletal pain. He examined Mr. Bradley on May 6, 2006 for the purpose of preparing a medicolegal opinion. He was not Mr. Bradley’s treating physician. He noted the symptoms reported by Mr. Bradley, including:

Mr. Bradley says the most painful area is his left lower leg/ankle. … He says this left lower leg/ankle pain is not constant, but is certainly felt on a daily basis. This pain is worse with activity and improved with rest. He feels this pain after about 10 minutes of walking. Walking on uneven surfaces brings it on earlier. On days when he is on his feet for several hours, his left ankle/lower leg pain can reach 5 out of 10…. On days when he is resting and not doing much, he says this pain is about 3 out of 10. His left ankle/lower leg does not swell. There is no tingling or paresthesia.

…

He describes his right knee pain as “achy stiffness”. He has this pain daily, but not constantly. He says his right knee pain is brought on with activity such as walking greater than 30 minutes.

…

Mr. Bradley describes his sleep, memory, concentration, appetite, and interests as normal. He has a good relationship with his girlfriend.

Mr. Bradley says that since the MVA his ambition and drive to succeed have reduced; he attributes this to financial hardship that he has suffered since the MVA. As a result, Mr Bradley says he could not pursue some business and work opportunities that were available to him.

[49] Dr. Manchanda did not observe any exaggerated pain behaviour. Physical examination revealed the following:

· loss of muscle bulk in the left calf and lower leg;

· both knees looked normal and range of motion was full and pain free;

· possible patellofemoral syndrome, although internal structures of the right knee, including the meniscus and ligaments were stable; and

· range of motion of the left ankle was full and essentially pain free, although there was “tenderness over the left anterior ankle joint line, particularly medially around the medial malleolus”, as well as tenderness at the ligament.

[50] Dr. Manchanda summarized the injuries that Mr. Bradley sustained in the accident, including:

5. Post traumatic patellar-femoral irritation of the right knee, detected on physical exam. This problem has not resolved yet, in my opinion.

6. Musculo-ligamentous injuries in the lower left leg/left ankle region that, in my opinion, are ongoing and have not resolved. These cause pain with activity.

7. Mr. Bradley has also mild right hip area and very mild low back soft tissue injuries that, in my opinion, are yet unresolved and ongoing. These cause a lesser degree of symptoms compared to the left ankle.

8. Mr. Bradley has developed atrophy (muscle wasting) of his left calf and left lower leg. I am concerned about his muscle wasting. I recommend nerve conduction studies/electromyography (NCSIEMG) to rule out a radiculopathy (spinal nerve root damage) or peripheral nerve damage.

[51] Dr. Manchanda did not find Mr. Bradley clinically depressed or unhappy.

[52] With respect to the degree of Mr. Bradley’s symptoms, he concluded the following:

Although Mr Bradley has improved significantly from the MVA, he continues to experience ongoing symptoms (pain), particularly with activity such as walking greater than 10 minutes. Currently, these symptoms, when present, do not prevent him from completing his duties and daily living activities.

[53] Dr. Manchanda opined that “Mr. Bradley will likely continue to have some degree of ongoing pain and symptoms into the foreseeable future” and “will likely never fully heal from his MVA injuries at the right knee and left lower extremity.” However, on the subject of Mr. Bradley’s vocation, he opined that:

Mr. Bradley is able to work as a carpenter. Such work generally requires upper extremity/upper body strength and dexterity. Mr. Bradley has not voiced any significant pain or disability in his upper limbs, nor have I found any obvious pathology here. He is currently working full time as a high rise building window cleaner, with no difficulties.

[54] In regards to other occupations, Dr. Manchanda opined that:

Mr. Bradley will likely not be able to participate in work that requires him to be on his feet for several hours (e.g. security guard) or jobs that need left leg strength (e.g. pushing a shovel with his left foot, using vibration tools that need left leg support, etc).

[55] Dr. Manchanda recommended that Mr. Bradley continue with his "usual activities”, including sports and full time work.

[56] Dr. Manchanda assessed Mr. Bradley for the second time on April 2, 2008. On the same date he prepared his second medicolegal report.

[57] Mr. Bradley again denied feeling depressed and reported his mood as normal. He did report that he was low or depressed in 2004 and 2005, but not currently. Dr. Manchanda did not detect any signs of depression.

[58] However, Mr. Bradley reported the left ankle and lower leg pain as “fatigue or dull ache” after activity or walking longer than 45 minutes. He also reported right lateral knee pain after prolonged walking or activities, and right shoulder stiffness, which started in 2005 from the carpentry work.

[59] Dr. Manchanda’s examination showed no ligament damage or tenderness in the right knee; mild tenderness over the right distil, lateral quadriceps; and significant tenderness over the left distil, medial lower leg. There was only slight atrophy of the left leg as compared to the right.

[60] Dr. Manchanda made the following diagnoses:

The power in his lower limbs remains normal (5 out of 5). Neurological exam of his lower limbs is normal. He continues to have significant tenderness over the distal and medial aspect of his left tibia (lower leg). He sustained a fracture in the region of his left ankle during the MVA of December 03, 2003 as seen on CT scan and bone scan. Given his current pain and tenderness, there is probably an unresolved soft tissue injury in the distal left lower leg and left ankle region. In my opinion, this residual soft tissue injury at the left ankle/lower leg has not healed since the MVA, and at the current time, I would classify this as a mild-to-low moderate soft tissue injury.

Furthermore, in my opinion, he probably has some very mild residual soft tissue injury around the right lateral knee/distal quadriceps.

[61] On Mr. Bradley’s vocational capacity, Dr. Manchanda revised his earlier opinion:

With respect to his functional capacity, in my opinion, Mr. Bradley is fully capable of completing activities of daily living (i.e. dressing, cooking, cleaning, routine household chores, carrying groceries, vacuuming, etc.). In my opinion, Mr. Bradley is able to work full time at his current job (building manager or caretaker) or a job of similar physical demands. Mr. Bradley says that the job of a carpenter often requires carrying heavy loads and holding heavy loads in steady positions for several minutes. If this is the case, then given his residual left lower leg/ankle soft tissue injury, he will probably not be able to sustain such heavy physical work (i.e. carpentry work) at a full time level but may be able to sustain such work at a recreational (or part time) level.

…

Again, in my opinion, Mr. Bradley is able to complete his household chores and is able to work full time at his current job or job of similar physical demands. Because of his left lower leg injuries, Mr. Bradley will likely not be able to work full time as a carpenter given his description of heavier duties involved in carpentry.

[Emphasis added]

[62] Dr. Manchanda further opined that Mr. Bradley’s symptoms would likely remain the same and he may be subject to additional risks:

I do not expect Mr. Bradley to deteriorate from his current condition. In my opinion, at this stage over 4 years post-MVA, his soft tissue injuries will likely not heal significantly more, and therefore he will continue to have some degree of ongoing symptoms (pain, dull ache, easy fatigue, etc) in the region of his left lower leg/ankle, and possibly also right lateral knee area. Given that there was a fracture in the left ankle area and there are ongoing symptoms, he may be at risk for post traumatic arthritis. This remains to be determined. Repeat X-rays and CT scan of the distal left tibio-fibular joint and left ankle may reveal post-traumatic arthritic changes now or in the future. In any case, I do not think his left lower leg pain is going to improve significantly or return to its pre-MVA health.

Dr. Kiraly

[63] Dr. Kiraly is a psychiatrist. He examined Mr. Bradley on June 16, 2006, for the purpose of preparing a medicolegal opinion. His report was prepared on July 10, 2006. In addition to a personal interview and assessment of Mr. Bradley, in the preparation of his report, Dr. Kiraly inter alia relied on telephone interviews with Mr. Bradley’s father, on June 28, 2006, and girlfriend, on June 26, 2006. In describing the assumptions and evidence underlying his report, Dr. Kiraly noted that Dr. Unger had recommended Cognitive Behaviour Therapy at a Post Traumatic Stress Disorder (PTSD) clinic.

[64] I note that Dr. Kiraly stated that “[t]here is documentation of the present head injury”. No such documentation appears to exist.

[65] From the interview with Mr. Bradley’s father, Dr. Kiraly reported that Mr. Bradley was “diagnosed” as a gifted child and was full of intelligent ideas and ambitions. He read books and wrote, and even won an essay competition. His hobbies always involved creativity and he built clocks with his father, as well as designed and built furniture. He was an excellent athlete - skier, hiker, biker, and skateboarder. Apparently, the accident brought about “horrendous changes”. It was as if Mr. Bradley had “fallen asleep”, become dull, neglectful, absent-minded, and emotionally withdrawn:

After the accident, during the summer of 2004 [July] his father visited him. “I could not get his imagination to spark”, said his father. “Prior to this he could have run a business. I even offered to help him set up a business but he just had no interest”.

[66] Similar facts were also reported by Mr. Bradley’s girlfriend. She reported that since the accident Mr. Bradley had become depressed and stopped sports and almost all physical activities. She reported that they cannot even go camping because Mr. Bradley is unable to hike on uneven surfaces. Their intimacy has also suffered:

Since the accident she has noted that his ability to enjoy sexual activity has been impaired. She felt that a major factor in her own inability to enjoy their sexual life stemmed from the fact that she could no longer “snuggle up to him” because of his physical pains and discomforts and she always had to be careful. This detracted a great deal from being able to enjoy spontaneous affectionate behavior. The couple always enjoyed physical activity together. They would walk for long periods every day. Now Leah has to do this alone.

[67] She also reported that Mr. Bradley had developed a sleep disorder and headaches. He became disorganized, “scattered” and less sociable, reads less, “lost ambition and tends to just talk about various ideas”.

[68] Dr. Kiraly’s personal conclusion was that prior to the accident, Mr. Bradley was:

… generally successful at everything he tried. He had no difficulty landing a job and his performance was always excellent. He comes from a family of high achievers.

…

Overall, he was happy, without feelings of depression or hopelessness and he had confidence in himself.

[69] Based on the evidence before him, Dr. Kiraly assessed Mr. Bradley’s mental state immediately following the accident as follows:

Severe symptoms: headache, subjective sensation of “pressure in the head”, difficulty with balance and dizziness, subjective sensation of “not feeling right”, feeling of being “dinged” or “dazed”, feeling of being slowed down, feeling of being “in a fog”, fatigue and low energy and difficulty concentrating.

Moderate symptoms: neck pain, nausea or vomiting, hearing problems, auditory disturbances, visual disturbances, irritability, confusion, drowsiness, fatigue and low energy and difficulty remembering.

[70] At the time of the assessment, Mr. Bradley’s mental state was as follows:

Severe symptoms: trouble falling asleep, sleep disorder.

Moderate symptoms: sadness, nervousness and anxiety, and sleeping more than usual.

Absent Symptoms: sensitivity to light and sensitivity to noise.

[71] Noting that Mr. Bradley was diagnosed with a head injury at the time of the accident, Dr. Kiraly’s assessment of Mr. Bradley’s current condition included the following points:

… he now feels that he cannot concentrate well on whatever he was doing. He has sleep problems because of worry. He seldom feels that he is playing an important part in things and he has difficulty making decisions.

…

Overall, he is unhappy and feels depression or hopelessness much of the time. He has no confidence in himself.

…

The above findings show a definite and severe shift away from a previously healthy state towards illness.

[72] Mr. Bradley’s mental status examination showed some impact on his mental state:

… THOUGHT PROCESS: fluid, no dyscontrol. Mostly logical, able to make plans but gets derailed. Some tangentiality. Some intrusions of images. Some obsessional repetitions. THOUGHT CONTENT: mostly of distress about already mentioned complaints. Symptoms. Autochtonous events: sad feelings images come over him without control. He has awareness of this and finds it distressing. No suicidal intent or plans. No hallucinations. MOOD: irritable, pessimistic, negative, sad (tearful), angry, … ATTENTION & CONCENTRATION: mildly impaired judging from flow of thought and discourse. MEMORY: Working memory (STM) not impaired.

…

… depressed mood … at least in the “moderately severe” range. Anxiety, tension, hostility and blunted affect were in the “mild” range. Other aspects were essentially negative confirming that there was no underlying psychotic process.

…

Hamilton Anxiety Rating Scale score was 28 (cutoff for moderate anxiety is 18; for severe anxiety cutoff is 28). Anxiety symptoms most heavily endorsed included insomnia cognitive difficulties and signs of strain/distress.

…

Fatigue Impact Scale: 104/160 … This score means that fatigue is a very significant problem impacting on daily living and ability to tolerate effort. Impact is mostly on Mr. Bradley’s ability to meet vocational family and social expectations, exercise and carry an appropriate occupation and earn income.

…

Although he has never been naturally lazy, he now seems that way and he procrastinates. He has always been warm, friendly and good-natured and very patient towards others and now he is more irritable and aloof.

[73] Dr. Kiraly concluded that Mr. Bradley suffered a mild traumatic brain injury (MTBI), which is the same as a complex concussion, and a Post Concussion Syndrome. He also diagnosed Mr. Bradley as suffering from PTSD symptoms such as a sleep disorder and thought intrusions about the accident. While noting improvement since the accident, Dr. Kiraly concluded that Mr. Bradley is “moderately ill”.

[74] Dr. Kiraly provided the following extensive summary of Mr. Bradley’s deficits, residual symptoms, and problems:

The following residual deficits appear to be a direct result of the injuries acquired. These deficits are consistent with what one would expect after a G-force impact (as he experienced after the MVA) being thrown from the bicycle, traveling through the air and hitting the head on hard pavement resulting in the above diagnoses:

1) Chronic anxiety and PTSD symptoms: Mr. Bradley has severe anxiety.

2) Physical limitations: Cannot walk on uneven ground. Cannot sustain walking or related activities such as carrying heavy objects. Since the accident he cannot exercise adequately.

3) He has low stress tolerance. He has become avoidant and negligent with friends and loved ones.

4) Sleep disorder: Insomnia and nightmares. Chronic sleep disorder with loss of normal sleep architecture is dangerous on the long-run. With loss of Stage IV (slow wave) deep sleep immune system becomes depressed. This increases the risks for cancer and other illnesses. Lack of Stage II, REM (rapid eye movement) sleep is associated with cognitive problems. Mr. Bradley exhibits cognitive dysfunction typical of the sleep deprived: he has poor recall for events on the day before but has better recall for recent events. His sleep debt is associated with poor concentration and memory and unstable emotional functioning and daytime sleepiness.

5) He has lost appetite and weight.

6) Personality changes: as noted above.

7) Cognitive impairment: Problems with attention, concentration and recall. He has lost confidence in reliable intellectual performance.

8) Depression and concomitant psychological changes: Relationships with family and friends have deteriorated and he feels guilt around this issue. He is self-defeating because he has a very naïve and negative attitude about psychiatric illness and, for personal and cultural biases, he has remained stoic and avoidant. Also, he was hopeful that he would improve dramatically.

9) Social dysfunction: lost interest in socializing and is generally less ambitious. Family and his partner have considered this peculiar.

10) Musculoskeletal pain: He continues to have physical pain (foot, shin, headache).

11) Chronic medication use: this remains problematic. Although he needs analgesics he has poor tolerance for drugs.

12) Increased risk of repeat head injury.

13) Accumulation of risk factors: Concussion itself increases the risk for presenile dementia like Alzheimer’s disease. One traumatic brain injury (TBI) increases the risk of having another one. Chronic stress of pain, sleep disorder, lack of exercise and the stress associated with difficulties with optimal interpersonal functioning will increase risk of developing diabetes, obesity and a number of other conditions which are known to be independent risk factors for dementia.

14) Inability to enjoy exercise and inability to maintain healthy exercise levels. Lost former recreation activities.

15) Sexual dysfunction: loss of libido.

16) Lack of neuropsychiatric diagnosis and treatment.

[75] In the short form of his opinion about Mr. Bradley’s future, he thought that Mr. Bradley “will have suffered serious limitations in physical activity, working capacity, mobility and stress tolerance.”

[76] The prognosis provided by Dr. Kiraly was generally not favourable:

… it is not likely that— complete recovery will take place but hopefully with treatment of depressive and anxiety symptoms and ongoing supportive therapy, physical and psychiatric therapies, the risk of neurodegenerative changes can be slowed.

[77] Dr. Kiraly opined that Mr. Bradley’s disabilities may be permanent, including:

His ankle and bony injuries will likely develop painful arthritic changes.

…

In many lines of work it would be impossible to function adequately with such [cognitive] symptoms.

…

Regulation of stress, which means time off work, is to be an integral part of his treatment; therefore, being off may have to be a medical decision — at least from time-to-time.

…

Impairment of physical mobility (walking, running, carrying loads) will severely limit choice of occupations and vocational pursuits.

…

Life expectancy will be shortened – 65 more years.

[78] Dr. Kiraly recommended:

In short, Mr. M. Bradley will require a full neuropsychiatry workup because, in addition to his headaches and foot problems, he has complex issues consisting of anxiety, PTSD, depression and sleep disorder and some cognitive impairment. It is impossible to assess at this time how complex this process may become because these problems are all inter-related.

[79] He recommended a thorough neuropsychological and neuropsychiatric assessment and regular follow-up appointments, as well as “counselling/psychotherapy to help him to understand and follow through with treatments and preventive practices.”

Dr. McGraw

[80] Dr. McGraw is an orthopaedic surgeon. He examined Mr. Bradley on June 29, 2006, at the request of Mr. Bath’s counsel, and prepared his report on August 17, 2006.

[81] Mr. Bradley complained of aching pain in the right knee, which improved with physiotherapy; discomfort from the left knee down to the ankle; and tender and hypersensitive left shin. He also had low back pain which has resolved. Mr. Bradley reported that since the accident his leisure activities have been severely limited, and he is no longer skiing, playing baseball or basketball, or cycling. Dr. McGraw noted that Mr. Bradley “did not exhibit any non-organic activity or pain magnification behaviour.”

[82] With respect to Mr. Bradley’s left shin, Dr. McGraw opined that there will be no long term consequences, particularly no future development of post-traumatic degenerative arthritis even though “[t] he activity-related symptoms may be due to a small muscle herniation in the anterior compartment” of the shin.

[83] With respect to the left ankle, Dr. McGraw opined that the “soft tissue injuries [in the ankle] will probably have no long-term consequences.”

[84] Both of the above opinions seem to have been focused on whether there was a need for future surgical intervention.

[85] Dr. McGraw recommended a “supervised exercise program preferably conducted by a personal trainer or a kinesiologist familiar with post injury recovery.” He (somewhat cynically) agreed with Mr. Bradley that an earlier and a more aggressive physiotherapy program might have helped.

[86] Dr. McGraw also provided a follow-up opinion on May 15, 2008. In this opinion, he took into account the June 6, 2006 and April 2, 2008 reports of Dr. Manchanda (discussed above) and the January 18, 2008 reports of Lila Quastel (discussed below).

[87] He agreed with Dr. Manchanda’s initial comment that Mr. Bradley was able to work as a carpenter. He disagreed with Dr. Manchanda’s subsequent conclusion that Mr. Bradley will be unable to work in this occupation as unsupported:

In the writer’s view, this change of opinion is not based on any new assumption or fact. In the writer’s view, Dr. Manchanda’s physical examination on April 2, 2008 does not reveal any physical abnormality which would cause an orthopaedic surgeon to conclude that Mr. David Bradley was not fit to work as a carpenter.

[88] Otherwise, he noted that Dr. Manchanda’s findings “closely parallel” his own.

Vocational / Rehabilitation Report by Lila Quastel

[89] Ms. Quastel is an occupational therapist. She is not a medical doctor. She conducted an evaluation “to assess Mr. Bradley’s functional capacities, acquired work limitations and vocational potential” on November 16 and 17, 2007. At the outset, I note that in her report and her evidence at the trial, Ms. Quastel occasionally strayed beyond her expertise as an occupational therapist and provided opinions on medical matters such as Mr. Bradley’s injuries and recommended medical treatment. I have not given any weight to those opinions, and, furthermore, they have also affected the overall weight that I gave to her evidence.

[90] To Ms. Quastel, Mr. Bradley reported that he has been helping his girlfriend manage a residential building and he would like to become a building inspector in the future. He also reported that his leisure activities remain limited as he is unable to ski (which he tried in 2005), has not tried basketball, and although he cycles, it causes him a lot of pain. Mr. Bradley reported problems with his daily activities, such as problems with falling and staying asleep; difficulty cleaning the house; and difficulty using a computer because of discomfort caused by prolonged sitting. Mr. Bradley complained of pain in his ankle and heel, as well as his shin. Ms. Quastel reported that he was sensitive to the touch at those areas. She did not find any indication that Mr. Bradley was trying to exaggerate his pain or disability.

[91] Ms. Quastel found Mr. Bradley to be at an “above average level of aerobic fitness.” However, after a battery of physical tolerance tests, she opined that Mr. Bradley is not able to work as a carpenter:

The work and physical tolerance test results indicate that Mr. Bradley is physically capable of working at occupations in the limited and light strength categories, with limitations for sustained sitting and standing, working in body dextrous positions and sustained reaching above shoulder and head level with the right hand. Carpenters are listed in the NOC #7271, and described as having medium (3) strength demands with requirements for working in all body positions (4). Cabinet Makers are listed in the NOC # 7272, and also described as having medium (3) strength demands with requirements for working in all body positions (4). Test results indicate that Mr. Bradley does not meet the physical demands related to carpentry or to cabinet making. He has been doing odd jobs, often on a part-time basis.

[92] She did extensive testing on Mr. Bradley’s vocational capacity, and concluded that Mr. Bradley is quite bright and capable, and is well disposed towards creative work:

His reading rate is at the 99th percentile compared to 1st year college students. On the vocabulary part of the test his score places him at grade 16.1. On the comprehension part of the test he scored at the equivalent of grade 16.6. He reads at a level well beyond his educational development.

…

Mr. Bradley’s test results indicate above average general learning and high average verbal and numerical ability. He has high above average form and clerical perception and superior spatial perception. His motor coordination and manual dexterity are in the superior range, and his finger dexterity is solidly average.

Mr. Bradley has an above average aptitude profile. He would do well in any occupation that allows him to make use of his excellent perceptual and psychomotor skills. His scores on intellectual functioning predict success at a 2 year college program and possible success at a 4 year college or university program, provided he works hard and there are no additional stressors in his life.

…

Mr. Bradley’s profile on the Canadian Occupational Interest Inventory (COIl) indicates that he has a strong preference for creative activities which involve the artistic manipulation of objects and/or ideas, and a strong preference for working alone as opposed to working with others. He has a very mild preference for activities which would permit gaining the esteem of others and/or a leadership position. He has a mild preference for scientific/technical activities as opposed to activities in the business world. His interest profile indicates that carpentry was a good occupational choice for him.

…

Mr. Bradley was found on testing to be capable of working at occupations in the limited and light categories, with further limitations as described above. He is limited for sustained sitting, sustained standing and distance walking. Depending on the occupation that he chooses, it is possible that he will only be able to work half time. He reads at a university level, he has an above average aptitude profile, and fairly wide ranging vocational interests. If he does improve with further treatment, then his potential for vocational rehabilitation should be fairly good.

[93] She reported that Mr. Bradley’s self-reported cognitive difficulties were “not demonstrated during the two days of assessment”, but qualified that opinion with the observation that the testing was in “a highly structured and controlled environment”.

[94] With respect to the building inspector occupation suggested by Mr. Bradley, Ms. Quastel reported that the cost of obtaining this certification is $6,000 over two years, and average earnings are $45,000 per year. She was not sure that this was the best occupation for Mr. Bradley.

[95] Ms. Quastel also identified two occupations that she felt would be a good match for Mr. Bradley:

1) Drafting Technologist, requiring $20-24,000 for training over two years, with average earnings of $20-35,000 per year.

2) Graphic Designer/Illustrating Artist, a “particularly good match”, requiring $20,000 for training over two years, with average earnings of $22,000 per year.

[96] Ms. Quastel opined that if Mr. Bradley’s emotional problems do not improve, he may be left with near-minimum wage jobs that require no college or university training:

If Mr. Bradley’s cognitive/emotional problems do not improve with treatment, he may not be able to retrain for an occupation requiring 2 years of study. He may be left with direct entry jobs or those with on-the-job training. Such jobs in the limited and light categories usually pay minimum wage or a little better, with small pay raises over time. He could expect to earn $8.00 to $10.00 per hour. Examples of such jobs include the type of apartment building management Mr. Bradley is currently working at, parking lot attendant, theatre ticket seller and ticket-taker, counter person, cashier, etc. The job he had as host on the Snowbus and working in the Snowbus company office is an example of a direct entry job.

[97] I note that her conclusions with respect to Mr. Bradley’s emotional problems were based on Dr. Kiraly’s report, and were not necessarily confirmed by other physicians, to whom Mr. Bradley reported that he was not depressed.

[98] I note the following portions of her conclusions:

It is now 4 years since Mr. Bradley was injured. His residual physical problems include constant left ankle pain with occasional sharp pain, sensitivity over the left shin, right knee ache, and right iliotibial band tightness. He landed on the road on his right shoulder at the time of the accident and that shoulder remains stiff and achy. He continues to report memory and concentration problems, reduced initiative and motivation, reduced libido, and he feels less sociable and less family oriented than he was pre-accident. His injuries have interfered with his sleep, his sexual functioning, and his home care and maintenance tasks. He has not been able to enjoy the active sports he participated in pre-accident. His injuries have particularly interfered with his work.

…

Because of his injuries Mr. Bradley has suffered the loss of an occupation he loved. He has suffered a significant loss of employment opportunities along with a loss of income. I make the assumption that pre-accident he was capable of working at all occupations, for which he suitably qualified, in the medium strength category and possibly some in the heavy strength range. He has suffered a loss of occupational choice as well as employment opportunity. It is highly likely that his future earnings will be less than had the December 2003 accident not occurred. He has experienced a significant alteration in his lifestyle with a diminished quality of life. Mr. Bradley has present and future care needs which will be presented in a separate report.

Causation and Liability

Scene of the Accident

[99] To place the assessment of liability in the proper context, I will describe the scene of the accident based on the provided photographic and topographic evidence. The Petro Canada gas station is located on the north-west corner of the intersection of SW Marine Dr. and Cambie Street. The SW Marine Dr. roadway adjacent to the gas station runs from north-east to south-west. The next street in the westerly direction, which also intersects with SW Marine Drive, is Lord St, separated from Cambie St. by approximately 268 feet of sidewalk.

[100] The Petro Canada gas station takes up slightly more than half of the block between Cambie St. and Lord Street. The remainder is taken up by a low-rise commercial building which exits on SW Marine Drive as well as onto Lord Street. The two properties (gas station and the commercial building) are separated by a 5.5 foot-tall wooden fence. It extends almost to the paved sidewalk, ending approximately 10 feet from the curb of SW Marine Drive. There is approximately 1.25 feet between the inner edge of the sidewalk and the wooden fence.

[101] The gas station has two driveways exiting onto SW Marine Drive. The eastern driveway is indicated as the entrance by a large red sign with a white arrow pointing towards from the roadway to the gas station. However, I note that the photographs were taken relatively recently and I do not know if the sign was also there at the time of the accident five years ago. In any case, nothing turns on this. The two driveways are separated by a bus stop. The western driveway, where the accident occurred, “points” outwards from the gas station as its eastern edge tapers in the south-westerly direction towards SW Marine Drive to accommodate the bus stop. As it crosses the sidewalk, the width of the driveway is approximately 41.5 feet at the gas station side and 36 feet at the curb. Between the western edge of the driveway and the fence, there is an approximately 5.5 foot-wide strip of grass, which includes a phone booth somewhat recessed from the sidewalk, and a narrow flagpole. The fence obstructs the south-westerly view from the driveway onto the sidewalk. Naturally, the line of the sight and the area of visible sidewalk is controlled by the location of the observer on the driveway, namely, the distance from the sidewalk and from the fence.

Parties’ Positions

[102] Mr. Bradley claims that he saw Mr. Bath’s vehicle 2 – 2.5 car lengths in front of him before he entered the driveway to cross it. He saw Mr. Bath waiting to turn right onto SW Marine Drive and for that purpose moving slowly through the driveway. Mr. Bradley says that he thought it was safe to proceed because Mr. Bath’s vehicle was moving slowly and there was a significant distance between himself and Mr. Bath’s vehicle. He did not expect Mr. Bath to suddenly accelerate without looking. As he was approximately in the middle of the driveway, he was suddenly hit by the front of Mr. Bath’s Mercedes.

[103] The plaintiff relies on the testimony of an eyewitness, Ms. Point, to support his position. Ms. Point testified that her Ford Explorer SUV was stopped facing westbound in the curb lane of SW Marine Drive at the intersection with Cambie Street. Because her vehicle is fairly high, she could see the Petro Canada gas station clearly over the vehicle in front of her. She testified that she saw Mr. Bath’s vehicle moving fast to exit the gas station and saw a bicyclist moving slowly across the driveway. She saw Mr. Bath’s vehicle drive through the bicyclist as he was in the middle of the driveway. She did not see Mr. Bath’s vehicle stop before the collision, which threw the bicyclist into the middle lane of the westbound lanes of SW Marine Drive. When Mr. Bath’s vehicle stopped after the collision, its front end was in the curb lane.

[104] Mr. Bradley argues that Mr. Bath has not established any causal connection between Mr. Bradley’s riding on the sidewalk in breach of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, and the collision. Thus, he argues that Mr. Bath is 100% liable for the accident.

[105] Mr. Bath says that he wanted to exit the gas station and was stopped approximately seven feet from the edge of the driveway waiting to make a right turn, with his vehicle facing south. He says that looked to his right, did not see anyone on the sidewalk, then looked to his left “for at least five seconds”, and then proceeded to exit onto SW Marine Drive. The next thing he knew, “couple of seconds later”, the plaintiff was walking to his car after the impact. Mr. Bath says that Mr. Bradley is the author of his own misfortune as he was illegally riding his bicycle on the sidewalk in contravention of s. 183(2)(a) of the Act, which reads:

(2) A person operating a cycle

(a) must not ride on a sidewalk unless authorized by a bylaw made under section 124 or unless otherwise directed by a sign,

[106] There is no dispute that Mr. Bradley was not authorized to ride on the sidewalk by a bylaw or a sign.

[107] Mr. Bath relies on several cases which discuss the heightened duty of care on a person violating a traffic law: Ivanoff v. Besnmiller, 2002 BCCA 173; Hadden v. Lynch, 2008 BCSC 295; and Kerr v. Creighton, 2008 BCCA 275. Mr. Bath ultimately argues that Mr. Bradley has failed to prove that he “could have taken some action to prevent the accident”

Liability and Contributory Negligence

[108] From the evidence of Mr. Bradley and Mr. Bath, as well as of Ms. Point, there are two ways in which the collision could have occurred.

[109] The first scenario is as told by Mr. Bradley and Ms. Point. In accordance with their evidence, Mr. Bradley was hit by Mr. Bath’s vehicle as he was slowly (5.3 mph) riding his bicycle across the driveway. At the time of the collision, Mr. Bradley was approximately in the middle of the 36 foot driveway. Mr. Bath’s vehicle was first moving slowly, but then suddenly accelerated and did not come to a stop until after the collision. Judging from the fact that the force of the impact threw Mr. Bradley 15 feet into the middle lane of SW Marine Drive, Mr. Bath’s car must have been moving quite quickly.

[110] Section 176(1) of the Motor Vehicle Act provides that a motorist emerging from a driveway must stop before driving onto a sidewalk:

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.

[Emphasis added]

[111] If the accident happened as Mr. Bradley and Ms. Point described, then Mr. Bath clearly breached s. 176(1) of the Act. Moreover, there is a clear causal link between the breach and the accident. Had Mr. Bath stopped before driving onto the sidewalk, he would have seen Mr. Bradley riding his bicycle, and would have waited until Mr. Bradley had cleared the driveway before proceeding. While Mr. Bradley was also in breach of the Act by riding on the sidewalk, there is no causal link between his breach and the accident. Mr. Bradley could have just as easily been a jogger (moving at approximately the same speed as Mr. Bradley was travelling at the time), a rollerblader, or a regular pedestrian. Mr. Bath failed to see Mr. Bradley not because he was riding a bicycle on the sidewalk, but because he failed to stop his vehicle before crossing the sidewalk to take account of people who may be travelling on the sidewalk. Thus, Mr. Bath’s actions fell below the standard of an ordinarily prudent person: Hadden, at para. 69.

[112] The second scenario is as described by Mr. Bath. According to him, he stopped his vehicle before he crossed the sidewalk, looked to his right and did not see anyone on the sidewalk, then looked to his left for at least five seconds until the traffic coming from the east cleared, and only then proceeded across the sidewalk, at which point “Mr. Bradley collided with the front of my vehicle”. Given that Mr. Bradley was thrown into the middle lane of SW Marine Drive, the more accurate description would be that the front of Mr. Bath’s car collided with Mr. Bradley, rather than the other way around, denoting the fact that it was really Mr. Bath who hit Mr. Bradley, and not the other way around.

[113] The problem with Mr. Bath’s scenario is that many things could have happened on the sidewalk to his right in the “at least five seconds” that he was only looking to the left before proceeding. A pedestrian could have come down the sidewalk from the westerly direction, walking from Lord St. or perhaps entering the sidewalk to the commercial building immediately next to the gas station. At an average walking speed of 3.125 mph (5 km/h), a pedestrian would have walked approximately 23 feet during that time. A jogger, moving at an average jogging speed of 5.3 mph (8 km/h), could also have come down the sidewalk, and would have travelled at least 36 feet during that time. A rollerblader would have travelled an even greater distance. Any of those people could have travelled on the sidewalk to end up just in front or to the right of Mr. Bath’s vehicle as he started to move after looking to the left for at least five seconds. The inescapable conclusion is that Mr. Bath would not have been aware of any of these things that could have occurred during the time he looked only to the left because he did not look to the right before he started moving. Mr. Bath, as the driver, did not act in a manner in which an ordinarily prudent person would act.

[114] I note that if Mr. Bath’s story is true, and he did stop, look to the right and to the left, and then proceeded forward, then what he saw on the right hand side would have been limited by the fence and depended on where exactly he stopped. Assuming a scenario most favourable to Mr. Bath, that he stopped in accordance with s. 176 of the Act before his vehicle drove onto the sidewalk, then his line of sight would start at approximately 13 feet away from the curb of SW Marine Drive. In accordance with the photographic evidence, the plan of the area, and some very basic geometry, of which I can surely take judicial notice, Mr. Bath’s line of sight would extend approximately 73 feet from the edge of the fence. This is the approximate distance to the driveway of the next business. If Mr. Bath stopped with his vehicle on the sidewalk rather than before it, his line of sight would have been much greater, and, in accordance with the photographic evidence, he would be able to see the sidewalk west of Lord St.

[115] However, if either one of these scenarios is true, then it is a mystery how Mr. Bath did not see Mr. Bradley riding on the sidewalk. The point 73 feet away from the edge of the fence is approximately 95 feet away from the centre of the driveway where the collision occurred. Thus, for Mr. Bath’s best case scenario to work, that “Mr. Bradley was in fact five seconds away from Mr. Bath’s vehicle at the time he first saw it”, Mr. Bradley would have had to travel these 95 feet at the speed of 13 mph (20.9 km/h). This is significantly different from the 5.3 mph (8 km/h) that Mr. Bradley testified he was traveling; an assertion which was supported by Ms. Point’s evidence that the cyclist she saw was moving slowly, and was not contradicted by Mr. Bath. Moreover, the closer to the sidewalk (or on the sidewalk) Mr. Bath stopped his vehicle, the greater would be his line of sight and thus the faster Mr. Bradley would have had to have been traveling in order to cross that distance in the five seconds that Mr. Bath was looking away. Of course, another conclusion that could be drawn from this is that Mr. Bath did in fact see Mr. Bradley when he first looked to the right, but either forgot about him or hoped that he had not traveled the distance to the driveway in the five seconds that Mr. Bath did not look in his direction. I do not see how this would be any less negligent than failing to look to the right at all.

[116] If Mr. Bath was stopped very close to the fence such that it was obstructing his view, then he had an even higher onus to proceed with caution in the light of his limited view to the right.

[117] Either scenario leads to the conclusion that Mr. Bath bears full liability for this accident. While Mr. Bradley was under a duty to take greater care because he was in breach of the law by riding on the sidewalk, I cannot find that his breach was causally related to the accident. As I indicated above, the accident was not caused by Mr. Bradley riding his bicycle on the sidewalk: a pedestrian, jogger or a rollerblader could have been in his place. Rather, the accident was caused by Mr. Bath either failing to stop his vehicle before driving across the sidewalk in accordance with s. 176(1) of the Act, or by failing to look to his right before starting motion after looking away for a period of time during which a person could have appeared to the right of his vehicle. Thus, I cannot find that Mr. Bradley was contributorily negligent in this accident.

[118] In summary, I find Mr. Bath fully liable for the accident.

Assessment of Damages

[119] First, I must say several words about credibility. Generally, I found the plaintiff to be a credible witness. He has not shown a tendency to exaggerate his symptoms, although, understandably, he is feeling somewhat sorry for himself. I also found his girlfriend to be a candid and honest witness. Neither was discredited in cross-examination. I have no reason to distrust their testimony.

[120] I was somewhat concerned about the evidence of Ms. Quastel, who appeared partisan towards Mr. Bradley; the evidence of Dr. McGraw who seemed to be partisan to the defence, particularly in minimizing Mr. Bradley’s symptoms; and the evidence of Dr. Kiraly, who appears to have relied on some erroneous or unproven facts.

[121] The second item of importance is the fact that Mr. Bradley was not wearing a helmet at the time of the collision, another breach of the Motor Vehicle Act. Intuitively, I believe that this fact may have exacerbated Mr. Bradley’s head trauma. However, Mr. Bath adduced no evidence on this issue. Accordingly, in the evidentiary vacuum, and given that the most painful and life-affecting injuries have been to Mr. Bradley’s leg and ankle, there will be no discount for Mr. Bradley’s failure to wear a helmet.

Cost of Future Care

[122] Ms. Quastel has provided her opinion on the cost of future care. She assessed this based on two scenarios: positive outcome – where Mr. Bradley is able to retrain into a new profession; and poor outcome – where Mr. Bradley is limited to direct entry jobs.

[123] These scenarios are summarized in the following two tables.

[124] Good outcome:

INITIAL OR ONE-TIME COSTS
Lumbosacral Spine MRI	875.00
Neuropsychological Assessment	5,000.00
Family Counselling	4,800.00
Vocational Counselling (10 Sessions)	1,450.00
TOTAL ONE-TIME COSTS	$12,125.00
ANNUAL COSTS
Medication	$1,000.00
Psychological Counselling for Mr. Bradley, year 1	8,320.00
Psychological Counselling for Mr. Bradley, year 2	4,160.00
Psychological Counselling for Mr. Bradley, year 3 onward	1,920.00
Occupational Therapist, year 1	7,040.00
Physiotherapy, year 1	2,340.00
Physiotherapy, year 2 onward	810.00
Case Manager, years 1& 2	2,640.00
Fitness/Aquatic Centre Membership	500.00
Kinesiologist or Fitness Trainer, year 1	1,560.00
Kinesiologist or Fitness Trainer, year 2 onward	240.00
Janitorial Assistance	3,120.00
Home Maintenance Service, year 4 onward	2,190.00
Heavy Gardening Assistance, year 4 onward	750.00
Vocational Rehabilitation Personnel, year 2	4,500.00
Vocational Rehabilitation Personnel, year 3 onward	1,875.00
Supportive and Well-Padded Shoes	200.00
Memory Aids, year 1	200.00
Memory Aids Replacement, year 2 onward	100.00
Total Annual Costs, Year One	$26,920.00
TOTAL ANNUAL COSTS, YEAR 2	$17,270.00
TOTAL ANNUAL COSTS, YEAR 3	$12,405.00
TOTAL ANNUAL COSTS, YEAR 4 ONWARD	$15,345.00
Provisional Additional Annual Cost
Libido Enhancing Medication	$1,560.00

[125] Poor outcome:

INITIAL OR ONE-TIME COSTS
Lumbosacral Spine MRI	875.00
Neuropsychological Assessment	5,000.00
Family Counselling	4,800.00
Vocational Counselling (10 Sessions)	1,450.00
Vocational Retraining, Two Year College Program or Building Inspector Certification Program	20 - 22,000.00 or 6,000.00
TOTAL ONE-TIME COSTS	$32 - $34,125.00, or $18,125.00
ANNUAL COSTS
Medication	$1,000.00
Psychological Counselling for Mr. Bradley, year 1	8,320.00
Psychological Counselling for Mr. Bradley, year 2	4,160.00
Psychological Counselling for Mr. Bradley, year 3 onward	1,920.00
Occupational Therapist, year 1	7,040.00
Physiotherapy, year 1	2,340.00
Physiotherapy, year 2 onward	810.00
Case Manager, years 1& 2	2,640.00
Fitness/Aquatic Centre Membership	500.00
Kinesiologist or Fitness Trainer, year 1	1,560.00
Kinesiologist or Fitness Trainer, year 2 onward	240.00
Janitorial Assistance	3,120.00
Home Maintenance Service, year 4 onward	2,190.00
Heavy Gardening Assistance, year 4 onward	750.00
Supportive and Well-Padded Shoes	200.00
Memory Aids, year 1	200.00
Memory Aids Replacement, year 2 onward	100.00
Total Annual Costs, Year One	$26,920.00
TOTAL ANNUAL COSTS, YEAR 2	$12,770.00
TOTAL ANNUAL COSTS, YEAR 3	$7,890.00
TOTAL ANNUAL COSTS, YEAR 4 ONWARD	$10,830.00
Provisional Additional Annual Cost
Libido Enhancing Medication	$1,560.00

[126] I note that the primary difference between the two scenarios is the cost of retraining. On the evidence before me, I find that the positive outcome scenario is much more likely than the poor outcome scenario. Specifically, I see no reason why Mr. Bradley will not be able to retrain into a new position. The evidence shows that he is a bright and capable young man, with an above average vocational capacity, and I believe that he will be successful in a job that will not tax his physical limitations.

[127] There are a number of items in the “positive outcome” list which I find to be unnecessary, redundant, or excessive.

[128] First, as I mentioned previously, Ms. Quastel is not a physician, and does not have the expertise to recommend medical treatment. Thus, I cannot give much weight to her recommendation for a “neuropsychological assessment”, medications, or psychological counselling. However, I do note that a neuropsychological assessment was recommended by Dr. Kiraly in his July 10, 2006 report, and counselling was recommended by both Dr. Unger and Dr. Kiraly. Both of these recommendations were made some time ago. Mr. Bradley has not provided any recent evidence regarding these recommendations, and has not indicated that the neuropsychological assessment is not covered by the provincial Medical Services Plan (“MSP”). However, based on all of the evidence, and particularly the reports of Dr. Kiraly and Dr. Unger, and the evidence of the plaintiff, I believe that Mr. Bradley will benefit from psychological counselling. The sum of $5,000 should be sufficient for this purpose.

[129] The cost of a neuropsychological assessment, and medications will not be included in the award for costs of future care. The costs of the assessment would be covered by MSP if recommended by a psychiatrist should Mr. Bradley’s family doctor decide it is necessary to refer him. I am not satisfied there is medical evidence supporting Mr. Bradley’s need to have libido enhancing medication or medical evidence to support that it would assist in addressing the issues in his intimate relationship with his partner.

[130] An MRI examination is generally covered by MSP, and an MRI examination has previously been performed on Mr. Bradley’s ankle. If another MRI is required, it will also be paid for by MSP. I see no reason why an MRI examination at a private clinic is necessary.

[131] Given the changes that Mr. Bradley has experienced, and the difficulties in his relationship with his girlfriend, it is reasonable for Mr. Bradley and his girlfriend to receive family counselling. His parents are not parties to this action, and Mr. Bradley has not made an in-trust claim on their behalf. Thus, I find no reason why family counselling for his parents should be included in an award for cost of future care in this action. However, I recognize the difficulties that the accident may have caused in Mr. Bradley’s relationship with his parents and find that he should have some family counselling to deal with this subject. I find that a total of 20 sessions at $160 per session (down from 30 sessions suggested by Ms. Quastel) is appropriate.

[132] I also reject Ms. Quastel’s recommendation that Mr. Bradley will need vocational counselling at a sum of $1,450. However, I recognize that Mr. Bradley does need to retrain and enter a new career, something which he would not have had to do but for the accident. I believe that an amount of $500 is reasonable to cover vocational counselling and/or résumé writing assistance. Similarly, I see no need for future vocational rehabilitation. Despite his injuries, Mr. Bradley has been able to find a number of jobs since the accident. I believe that once he successfully retrains for a new career, this pattern will continue.

[133] The evidence has not shown that Mr. Bradley is in need of extensive in-home occupational therapy recommended by Ms. Quastel. While Mr. Bradley has become somewhat scattered and less attentive, his cognitive deficits appear to be quite minimal. An amount of $500 for occupational therapy is reasonable.

[134] Mr. Bradley is not disabled and will only require a limited amount of future care. Thus, he will not need a case manager.

[135] The evidence has shown that physiotherapy has greatly helped Mr. Bradley manage the pain in his leg and ankle and that further physiotherapy will assist him. One session per week for the first year and 18 sessions per year for the subsequent years is reasonable. This amounts to $2,340 for the first year and a present value of $18,206 for subsequent years, to a total of $20,546.

[136] Given that Mr. Bradley’s outdoor fitness activities have been restricted by the injuries he has suffered in the accident, he will need to maintain his fitness in a gym setting. The amount of $500 per year for a fitness / aquatic centre membership is reasonable, with a present value of $11,730 according to the economic report.

[137] Mr. Bradley will also need to develop a fitness routine that will recognize his injuries and will safeguard against further injury. He will need the assistance of a professional, such as a kinesiologist, to develop and maintain such a programme. The cost of this professional assistance amounts to $1,560 for the first year and a present value of $5,394 for subsequent years, to a total of $6,954.

[138] Mr. Bradley is a young man in a generally good state of fitness. While he is not able to be employed full time in a manual labour job such as carpentry, he has been able to work in this occupation part time despite his injuries. Thus, I see no need for janitorial or home maintenance assistance for Mr. Bradley.

[139] Both well-padded shoes and some memory aids are reasonable on the evidence. The amounts suggested by Ms. Quastel are reasonable: $200 for shoes, $200 initially for memory aids (e.g. electronic organizer), and $2,248 as present value for future replacement costs, to a total of $2,648.

[140] In summary, I make the following award for the costs of future care:

Psychological Counselling	$5,000.00
Family Counselling	3,200.00
Vocational Counselling	500.00
Vocational Retraining – Two Year College Program	22,000.00
Occupational Therapy	500.00
Physiotherapy	20,546.00
Fitness / aquatic centre membership	11,730.00
Kinesiologist	6,954.00
Special Shoes, memory aids	2,648.00
TOTAL	$73,078.00

[141] I note that in determining the award for the cost of future care, the courts have found such an award to be notional and imprecise in nature. I have considered what care is likely in Mr. Bradley’s best interests and have relied on expert evidence in calculating its present cost. I have also determined that the items I have awarded are medically required, and would represent expenses the plaintiff would likely incur. Those items that I have not considered necessary or justifiable or would not likely be used by the plaintiff, I have not allowed. In basing my decision on these determinations, I have relied on Strachan (Guardian ad Litem of) v. Reynolds, 2006 BCSC 362, and Courdin v. Meyers, 2005 BCCA 91.

Past Income Loss

[142] I find that on December 3, 2003, Mr. Bradley was going to start a full-time job at Skookum Space Rentals at a salary of $22 per hour, which is equivalent to $45,914 gross, or $37,512 net of taxes, annually plus bonuses and overtime. I agree with the plaintiff’s submissions that while this salary may seem high for someone of Mr. Bradley’s age at the time of the accident, he has been doing carpentry and similar work since he was a child and did have much more carpentry experience than an average 23 year old. The plaintiff submits that Mr. Bradley would have earned $168,804.00 in net wages at this job to the date of the trial. I add to that amount 10% for bonuses and overtime, to a total of $185,684.40.

[143] After the accident, Mr. Bradley worked at a number of positions:

· July 10 to August 25, 2004: security guard at the Sylvia Hotel, $2,289.15 net.

· November 2004 to April 2005: host for Snowbus, no evidence of earnings.

· Mid-May to mid-November 2005: part-time carpenter at West Isle Design, $4,500 gross.

· July to the end of September 2005: ski-lift painter, $2,700 gross.

· April 2006 – December 2006: window-cleaner, $10,123 net.

· February - March 2007: odd jobs for a residential building, $775.00 gross.

· November 2007 – present: manager/caretaker, $8,180 net.

[144] It is difficult to calculate the total amount Mr. Bradley earned because he has not provided sufficient evidence of how much he earned at some jobs, and has only indicated the gross or the net amount for others. However, for loss of past wages, I award Mr. Bradley’s $185,684.40 less the amount that he actually earned from December 3, 2003 to the trial. Counsel will no doubt be able to reach agreement as to the correct number to be deducted as well as the tax consequences of this award. If they are unable to agree, they are at liberty to apply.

Loss of Future Wages

[145] I found that as a result of the accident Mr. Bradley will have to retrain for a new career. This will be a full time pursuit. However, but for the accident, Mr. Bradley would not have needed retraining and thus would not need to take two years off work. As found above, he would have continued working, earning at least $41,263.20 per year net of taxes ($37,512 net plus 10% for bonuses and overtime). Thus, over the two years of schooling, he will have lost $82,526.40. I must deduct from that amount a reasonable amount for such contingencies as the shutdown of a business, layoffs, a decision to move back to Ontario. I therefore deduct the amount of $10,000.00.

[146] I award Mr. Bradley $72,526.40 for future lost wages.

Loss of Future Earning Capacity

[147] I find that there are two fundamental and interrelated problems with estimating Mr. Bradley’s loss of earning capacity. First, the economic reports provided by the plaintiff focus on the amounts Mr. Bradley would have earned solely based on his age. As I have found, he was earning higher wages because of his experience and capacity. This is supported by the fact that sometime in 2005/2006, Mr. Bradley successfully attended Langara College in Vancouver for a course in small business entrepreneurship and also successfully challenged a “joinery” examination. This militates towards a higher award as Mr. Bradley would have likely earned more than projected but for the accident. Second, Mr. Bradley is an industrious and bright young man. He has held many jobs and I have confidence will succeed in a new career that he chooses, with proper retraining and counselling. Thus, he will likely earn more than the average in his chosen field. This militates towards a lower award as his future earnings will also likely be higher than projected.

[148] On the subject of assessment of loss of future earning capacity, I adopt the concise words of Madam Justice Dickson in Kuskis v. Hon Tin, 2008 BCSC 862 at 151-155:

[151] A claim for loss of future earning capacity raises two issues: (1) has the plaintiff’s earning capacity been impaired to any degree by her injuries and, if so, (2) what amount should be awarded: Fox at ¶ 91.

[152] To determine the question of impaired capacity the court considers factors such as whether the plaintiff has been rendered less capable overall of earning income from all types of employment; is less marketable or attractive as a potential employee; has lost the ability to take advantage of all job opportunities that might otherwise have been open; and is less valuable to herself as a person capable of earning income in a competitive labour market: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353.

[153] To quantify a loss of earning capacity the court conducts an assessment, based on the evidence, rather than applying a purely mathematical calculation: Rosvold v. Dunlop, (2002) 84 B.C.L.R. (3d) 158; Durand v. Bolt, 2007 BCSC 480. For assessment purposes, income earning capacity is viewed as a capital asset and all relevant positive and negative contingencies must be considered: Fox at ¶ 92 and 102-103; Parypa v. Wickware, 1999 B.C.J. No. 270.

[154] One method of assessing loss of future earning capacity is to compare the likely future income of the plaintiff if the accident had not occurred with the likely future income of the plaintiff now that it has occurred. In addition, the overall fairness and reasonableness of the award must be taken into account: Rosvold at ¶ 11.

[155] Relevant contingencies for consideration may be general or specific in nature. Such contingencies include, for example, the potential for improvement in health, opportunities for advancement, and the usual chances and hazards of life: Djukic at ¶ 105.

[149] It is clear that no mathematical formula is appropriate in making this determination and I must make an assessment based on the evidence. I note that even if Mr. Bradley succeeds in completing his diploma in building inspection, he may suffer some income limitation from not being able to work long hours due to his leg/ankle pain and may find it problematic to climb ladders to perform inspections. As well, because of his physical limitations, he may well be viewed as a less attractive employee than one who is fully able to perform without difficulty all the physical tasks of an occupation such as a building inspector.

[150] Given that Mr. Bradley will be compensated for the amount of wages lost during retraining by an award for future lost wages, and taking into account Mr. Bradley’s vocational capacity, I award him $80,000.00 for loss of earning capacity.

Non-Pecuniary Damages

[151] Mr. Bradley submits that an award of $120,000 for non-pecuniary damages is appropriate. He focuses on his reduced potential which is a “shadow of what it was” and permanent injuries which have “adversely impacted all aspects of his life from his personal relationships to his vocational potential”. Although in his submissions Mr. Bradley extensively quotes from the report of Dr. Kiraly and refers to the evidence of his father and girlfriend, he does not cite any authorities to support his position.

[152] Mr. Bath cites several cases: Sandhu v. Hamade, [1997] B.C.J. No. 1017 (S.C.); Biggar v. Felker, 2002 BCSC 998; Dias v. Hardcastle, 2003 BCSC 1834; and Chang v. Feng, 2008 BCSC 49. In his submission, Mr. Bradley’s non-pecuniary losses are not worth more than $35-45,000.

[153] However, the cases cited by the defendant are distinguishable. The evidence in this case has shown a number of serious non-monetary losses suffered by Mr. Bradley, such as the loss of an occupation he loved, changes to his personality with a resulting loss of friendships, greatly reduced level of physical activity and enjoyment of sports, a reduced ability to enjoy intimacy with his girlfriend, and of course, the continuing pain from his ankle/leg injuries which he must learn to live with. These losses, in the context of the authorities, establish a range of approximately $50-100,000. However, also on the evidence, I believe that with proper care Mr. Bradley’s circumstances will greatly improve in the next several years. He will retrain for a new profession and will receive physiotherapy for his ankle/leg pain, and counselling for his personal problems. Accordingly, I award Mr. Bradley $75,000 for non-pecuniary losses.

Special Damages

[154] Mr. Bradley has provided an itemized list for his claim for special damages. The total amount claimed is $2,922.50, comprising:

Bus fares to/from medical appointments and physiotherapy	$293.50
Taxi from Richmond Hospital after the accident	$27.50
Physiotherapy (paid and owed)	$2,578.50

[155] I accept Mr. Bath’s submission that evidence has shown that Mr. Bradley has not always taken the bus to his appointments, but has sometimes walked or even run. For that reason, I reduce the claim for bus fares by 30%, to a total of $205.45.

[156] I award Mr. Bradley $2,811.45 as special damages.

In Trust Claim

[157] Mr. Bradley submits that an in-trust award for the work done by his girlfriend is appropriate. He calculates it at two hours per week at $30 per hour, for a total of $14,040.00 to the date of trial. I find that amount reasonable on the evidence. The defendant did not attempt to rebut this evidence.

Summary

[158] I found Mr. Bath to be 100% liable for the accident. I find no contributory negligence on the part of Mr. Bradley as Mr. Bath has not demonstrated a causal link between Mr. Bradley’s breach of the Motor Vehicle Act by riding his bicycle on the sidewalk and the accident.

[159] I award Mr. Bradley the following damages:

a. Cost of future care: $73,078.00

b. Lost wages: $185,684.40 less the amount actually earned by the Plaintiff from December 3, 2003 to the date of trial;

c. Loss of future wages: $72,526.40.

d. Loss of earning capacity: $80,000.00

e. Non-pecuniary damages: $75,000.00

f. Special damages: $2,811.45.

g. In-trust claim: $14,040.00

[160] Mr. Bradley will have his costs of the action at Scale B. If counsel wish to speak to costs, they may contact the Registry.

“RUSSELL J.”

Citation:	*Bradley v. Bath,*
	2008 BCSC 1056