2008 BCSC 1304 Reichennek v. Archibald

Before: The Honourable Mr. Justice Williams

Reasons for Judgment

Counsel for the Plaintiff:	F.R. Scordo
Counsel for the Defendant:	J. Horne, Q.C.
Date and Place of Trial/Hearing:	June 26-27, 2008
	Kamloops, B.C.

INTRODUCTION

[1] This is an action brought by the plaintiff to recover damages she sustained in a motor vehicle accident which she alleges was caused by the defendants’ negligence.

[2] There are two defendants named in the proceedings. Mr. Archibald was the driver of the automobile involved; he leases that vehicle from the corporate defendant, Canadian Road Leasing Company. The action was defended by Mr. Archibald; when reference is made in these reasons to the defendant, that is Mr. Archibald.

BACKGROUND OF THE ACTION

[3] Shortly before 3:00 p.m. on December 24, 2005, the plaintiff was driving her late model Hyundai sedan in North Kamloops. She was enroute to work, with the intention of first stopping at the residence of a co-worker to give him a ride. At the time, the weather conditions were sunny and clear and the roads were dry. It is not disputed that she was wearing the appropriate seat-belting with which her vehicle was equipped.

[4] The plaintiff drove eastbound on Lethbridge Avenue, approaching its intersection with 8th Street. At that point, there are two lanes for both northbound and southbound traffic on 8th Street. The plaintiff stopped at the stop sign, and waited until the two southbound lanes were clear and she was able to safely cross and turn northbound. She did so and then made her way into the right-hand or curb lane. The next cross street was York Avenue, where she intended to turn right. That intersection is controlled by a traffic light.

[5] As she approached the intersection of 8th Street and York and slowed to make the turn, her car was struck from the rear by a Ford truck driven by the defendant.

[6] The force of the collision was significant. The plaintiff’s car sustained quite extensive damage to its rear area. The cost of the repair was very nearly $6,000. There was minimal damage to the front of the defendant’s truck. The plaintiff was taken by ambulance to hospital where she was examined, x-rayed and released. She experienced soreness and headache which she says was acute for a period of time following, and which has significantly abated and resolved over time. However, she said she still had some lingering symptoms at the time of trial.

[7] The plaintiff missed nearly three weeks of work as a consequence of her injuries.

POSITION OF THE PLAINTIFF

[8] Ms. Reichennek says that the accident is attributable to the negligence of the defendant, and that she is not at fault. She says that the injuries she sustained have caused her pain, suffering and loss of enjoyment of life, for which she seeks an award of damages. She has advanced a claim for loss of wages for the time she was unable to work following the accident. In fact, the parties are agreed as to the amount of this loss: $2,164.21. Similarly, there is a claim for special damages which the parties agree to be $351.00. Finally, Ms. Reichennek says she should be awarded damages to compensate her for loss of future earning capacity resulting from the accident injuries.

[9] She also claims costs in the action.

POSITION OF THE DEFENDANT

[10] Mr. Archibald takes the position that the blame for the collision is not entirely his. He says the manner in which the plaintiff drove her vehicle contributed to the causation of the incident, and that liability should be apportioned between the two parties.

[11] With respect to the plaintiff’s claim for general damages, the defendant contends that her injuries and their aftermath are not as serious as she claims. He argues that her entitlement to non-pecuniary damages is modest. Finally, he disputes that there is any entitlement to an award of damages for loss of earning capacity.

[12] As noted, the defendant does not dispute the amounts claimed under the heads of wage loss and special damages.

ISSUES

[13] The following determinations must be made:

(a) liability for the collision;

(b) quantum of non-pecuniary damages; and

ANALYSIS AND DISCUSSION

Liability

[14] There is considerable dispute between the parties as to precisely how each was driving leading up to the collision.

[15] The plaintiff says that she approached the intersection at 8th Street and Lethbridge; when it was safe to cross to the northbound lanes, she did so. She was initially in the left-hand lane on 8th Street. She then shifted to the curb lane and subsequently slowed to a low speed or near stop at the intersection of 8th and York, intending to turn right. She testified that she signalled her lane change and intention to turn at the corner. It was at that point that she was struck from behind by the defendant’s vehicle.

[16] More specifically, Ms. Reichennek’s evidence is that when she first turned onto 8th Street, she travelled for a distance in the left-hand lane. Some cars passed her on the right; she then concluded it was safe to change to the right-hand lane. She accelerated and did so. Once in the right-hand lane, she saw the defendant’s truck behind her, moving fast. It caught up to her and was following her closely. Her testimony is that she “flipped him (the driver) the bird”. He got closer and she gave the finger motion again. It was as she signalled and slowed to turn that the truck collided with the rear of her car.

[17] Mr. Archibald’s description of events is different than that of the plaintiff. He says that he was in the right-hand lane at all times while travelling on 8th Street, and that he was travelling at a speed of approximately 60 – 65 kms. per hour. He was in or near the intersection at Lethbridge when he saw the plaintiff’s vehicle enter the left lane. He continued in his same lane, at the same speed. He testified that he saw the plaintiff then speed up to pass him on the left, that she gave him the finger and without signalling, cut in front of him into the right-hand lane. He took his foot off the accelerator as he approached York. The light turned yellow and the plaintiff braked. At that point, the defendant swung to the left to avoid striking her car, but in fact there was contact.

[18] The photographic evidence depicts the imprint of the defendant’s (centre mounted) licence plate on the left portion of the plaintiff’s rear bumper, confirming that this was a somewhat offset contact, and, to that limited extent, verifying the manner of the collision as he describes it.

[19] Ordinarily, in the case of a rear end collision, responsibility will lie with the following vehicle unless that driver is able to show that he was not at fault, that is, that the driver of the front vehicle caused or contributed to the event.

[20] In this case, the defendant says that the accident was caused by the actions of the plaintiff when she accelerated in front of him, cut him off and then braked quite dramatically at the corner of 8th Street and York.

[21] Initially, Mr. Archibald appeared to say that Ms. Reichennek cut in front of him at a point he believed to be about 20 or 25 feet from the corner. That is strikingly close and would tend to support his description of the event. However, on further questioning, he said that when she moved in front of him, he was at or near the area of a bus pull-out on 8th Street. On clarification, it seems that the defendant’s reference to the distance of 20 to 25 feet was with respect to the distance between the point of impact and the York Street intersection.

[22] In cross-examination, Mr. Archibald was asked about a statement provided to an insurance adjuster five days after the accident. He agreed that, in that statement, he said that the plaintiff’s lane change was between Lethbridge and York, “maybe halfway”, and, at trial, he adopted that as true. He also said in this statement that the plaintiff had been in the right-hand lane for about 20 seconds before contact, although at trial he said that he had been in error in this assertion, and it was only a couple of seconds.

[23] A scale drawing of the scene is in evidence. It shows that the distance from the Lethbridge intersection to the York intersection is 228.2 metres. It also depicts the bus pull-out, which appears to be about halfway along the distance from Lethbridge to York. When this was put to Mr. Archibald in cross-examination, he agreed that the plaintiff’s lane change therefore must have taken place approximately 114 meters from York. He also agreed that the plaintiff travelled about 100 meters in the right-hand lane (in front of him) before the contact between the vehicles.

[24] There is a fair amount of discrepancy between the parties with respect to how exactly each moved before the collision, their speed and their interaction after the collision.

[25] In my view, it is not necessary to sort through all of these details in order to make the necessary determination. I conclude that the defendant was aware of the plaintiff when she pulled into the right lane, and that the two vehicles travelled in that lane, one following the other, for some distance, probably no less than 80 to 90 metres, before the plaintiff slowed at the intersection and the defendant struck her from behind. Accordingly, it follows that she was established in that lane for a sufficient time such that the defendant must be taken to have been well-aware she was there. He should therefore have spaced himself appropriately and driven his vehicle safely so that there would be no contact with her car. That is an obligation that the law places upon the driver of a following vehicle. On the evidence that is before the Court, he did not meet that obligation.

[26] This is not a case where the evidence supports a conclusion that the plaintiff’s vehicle cut in front of the defendant in such a way as to alleviate his responsibility.

[27] Accordingly, I find the defendant liable for causation of the collision.

The Plaintiff’s Injuries and the Effect on Her

[28] The force of the impact was substantial. The defendant estimates his speed at the point of collision to be approximately 45 kms per hour. As noted, damage to the plaintiff’s vehicle was significant.

[29] The plaintiff says that the force of the impact initially threw her backwards, with her head striking the head-rest; she was then thrown forward. She experienced dizziness and pain in her neck and back. She was transported to Royal Inland Hospital where she was examined. X-rays were taken with negative results. She was then released and went home.

[30] Initially, for the first few days after the accident, the pain in her neck and back was considerable and she had a painful headache. She found walking difficult.

[31] The plaintiff saw her own doctor, Dr. Ritenburg, on December 28. He told her to rest, take Advil and apply heat.

[32] At the time, Ms. Reichennek was holding down two jobs. As a consequence of the pain she was experiencing, she missed work until sometime toward the middle of January.

[33] She attended for a series of physiotherapy treatments between January 10 and May 17. The treatment included heat, ultra-sound and stretching. She testified that this was helpful.

[34] In the months following the accident, the plaintiff found it difficult to sit for any length of time, and experienced stiffness and soreness in her neck and back. Work was quite uncomfortable when she had to stand or sit for any length of time.

[35] In September 2006, the plaintiff enrolled in a B.A. program at the university in Kamloops. She took four courses in the fall term, in addition to holding down her job at a casino.

[36] The plaintiff found the school routine challenging because of her injuries. She experienced headaches and found sitting difficult. It was painful to carry books. She had pain, stiffness in her neck and back and some difficulty sleeping.

[37] At the end of 2006, she quit her job for reasons unrelated to the accident. She continued with her university studies in the new year term.

[38] In June 2007, following the school term, the plaintiff took a first-aid course. At that point she was hoping to secure a job working on oil rigs. Although she obtained the first aid certification, she did not take such a job. She testified that she believed that particular task to be quite physically demanding and did not feel that she would have been able to do it. Instead, she took a job through the summer and into the fall with a construction firm, as both a first-aid attendant and physical labourer. She was able to keep up with the job but had stiffness and soreness in her neck, back and hips. She had fewer headaches but still experienced some difficulty sleeping.

[39] In the fall of 2007, the plaintiff relocated to Vancouver and worked at a call centre. At that time, she enrolled in and completed a physical rehabilitation program on the advice of her doctor. She states that she felt some discomfort in the program, but it provided real improvement for her.

[40] In March 2008, the call centre job ended and she subsequently obtained work as a marketer.

[41] At the time of trial, thirty months after the accident, the plaintiff’s headaches had resolved. She testified that she still continues to experience some soreness and stiffness in her neck, back and hips.

[42] With respect to the impact this accident has had upon her life, the plaintiff says that prior to the accident she was a moderately active person. She participated in dancing, some recreational tennis and golf and walked her dog. These activities were quite markedly limited by the discomfort that has resulted from the accident. As for housework and ordinary chores around the home, she says that she has to be much more careful in how she does those tasks, and that she sometimes feels soreness as a consequence of having done them. Her sleeping pattern has been disturbed by the injuries she sustained.

[43] The plaintiff called her former boyfriend as a witness. He testified as to his observations of her condition in the period following the motor vehicle accident. I find his evidence to be confirmatory of hers.

Medical Evidence

[44] Three medical reports were tendered in evidence at trial.

[45] Dr. Ritenburg prepared a report dated January 4, 2007. He is the plaintiff’s family doctor. He concludes that she suffered acute musculoskeletal injuries to her cervical, thoracic and lumbar spine. He states that, as of the date of that writing (some 12 months after the accident), most of those symptoms had resolved and he considers her prognosis for a full recovery to be good.

[46] A report prepared by Dr. Laidlow dated May 17, 2007 was filed. He examined the plaintiff on May 9, 2007 at the request of her counsel. He opines as follows:

In my opinion she has sustained a musculoligamentous strain of the neck and thoracic spine. As a result of those injuries, she did development (sic) significant tenderness and tightness in the musculature of those areas which persist. She has ongoing mechanical pain from these zones. It is likely, in my opinion, that the degree of tightness that was present in the neck was responsible for the numbness she experienced in her arms earlier on, as typically the nerves get irritated mildly as they pass through the tightened musculature on the way through into the arms. Now that she has restored some movement to the area her symptoms has (sic) settled and they are unlikely to come back. This is not the type of thing that would cause any significant nerve injury.

[47] He recommended an ongoing exercise program.

[48] A report prepared by Dr. Reedye dated March 31, 2008 was also filed. Dr. Reedye examined the plaintiff on March 6, 2008 at the request of the defendant.

[49] He concludes that the plaintiff sustained mild to moderate soft tissue injuries as a result of the motor vehicle accident. He found no evidence of severe injuries, such as torn muscles or damage to ligaments, intervertebral discs, nerves or nerve roots. He accepts that at the time of the examination she was still experiencing some aches and pains, but he expects complete resolution in time.

[50] I conclude that Ms. Reichennek sustained a moderate soft tissue whiplash injury in December 2005 which caused pain and discomfort to her neck and back and resulted in her experiencing headaches. These symptoms were initially acute, causing her to miss approximately three weeks of work and necessitating that she take pain medication and treatment, most notably physiotherapy. The pain and discomfort at times extended to her hip area. It gradually subsided with the passage of time. It was significantly resolved within three to four months of the accident, but she continued to experience some discomfort and limitation of her activities, albeit on a gradually improving basis, over time, up to the point of trial. At trial, all of the complaint of headache had resolved but there was some lingering discomfort and stiffness in her neck and back. That discomfort is essentially resolved at this time, and there is every reason to conclude that she has not sustained any permanent damage. With proper exercise and self-care, there will be a complete resolution.

[51] The plaintiff had no symptoms prior to the accident.

Non-pecuniary Damages

[52] With respect to the quantum of damages for pain, suffering and loss of enjoyment of life, plaintiff’s counsel has submitted that an appropriate range is $35,000 - $45,000. He makes reference to the following case authorities: Ghazgbi v. Hibberd, 2004 BCSC 1821, [2004] B.C.J. No. 3035 ($30,000); Cryderman v. Giesbrecht; 2006 BCSC 798, [2006] B.C.J. No. 1148 ($35,000); Mittleton v. Morcke, 2007 BCSC 804, [2007] B.C.J. No. 1237 (two accidents: $60,000); and Sudbury v. Kohlen, 2007 BCSC 1369, [2007] B.C.J. 2008 ($45,000).

[53] The defendant takes a different view of the matter. He submits that the plaintiff’s injuries were minor and that only a minimal amount of time was missed at work. He says there is no evidence of inability on the part of the plaintiff to work and pursue her career, and he contends that an appropriate award is in the order of $10,000. The defendant relies on the following authorities: Boag v. Berna, 2003 BCSC 779, [2003] B.C.J. No. 1160 (14,000); Clark v. Stock, 2002 BCSC 759, [2002] B.C.J. No. 1065 ($10,000); Levasseur v. Fraser, 2003 BCSC 946, [2003] B.C.J. No. 1471 ($14,500); Nichollson v. Armstrong, 2002 BCPC 3065, [2002] B.C.J. No. 3065 ($6,500); and Sallis v. Moore, 2007 BCPC 2457, [2007] B.C.J. No. 2457 (two accidents: $20,000).

[54] It is trite but true that each case presents its own particular facts. Each plaintiff is an individual; the injuries and their consequences are never precisely the same.

[55] The process of comparing cases is not a straightforward exercise, but can be of assistance in that it provides guidance for the assessment by demonstrating what other judges have determined to be reasonable. In this case, I find that the circumstances giving rise to the awards cited by the plaintiff are more serious than those at bar. I find, as well, that the injuries described in the cases relied on by the defendant are less serious than those of Ms. Reichennek.

[56] Considering all of the evidence in this case, I find the appropriate award for non-pecuniary damages to be $22,000.

Loss of Capacity

[57] The plaintiff claims that she is entitled to an award of damages for loss of earning capacity and that an appropriate amount is in the range of $10,000 to $20,000.

[58] The defendant contests this claim.

[59] In order to succeed, the plaintiff must prove a real possibility of a future income loss. If that onus is met, the court will then award compensation on an estimation of the chance that event will occur: Steward v. Berezan, 2007 BCCA 150, [2007] B.C.J. No. 499. Where there is no evidence that the plaintiff’s capacity to earn income in the future is impaired, then the claim will not be successful.

[60] As a practical matter, it seems to me that the assessment of such a claim must be informed by the actual vocational or professional history, training and aspirations of the plaintiff.

[61] In the present case, I have concluded that the plaintiff’s injuries from the accident have effectively resolved. Furthermore, there is no evidence that the plaintiff aspires to any line of occupation in which her prospects will be impacted by the injuries she sustained in this accident. I find that the circumstances of the plaintiff do not give rise to an entitlement to an award for loss of earning capacity.

[62] The evidence is that Ms. Reichennek aspires to a career as a college instructor, and that she is in pursuit of this. Given my findings with respect to her injuries, and given the principle which will justify an award of damages for loss of capacity, the facts of this case do not warrant the granting of such a claim, and it stands dismissed.

[63] I wish to offer an observation about the plaintiff. She is a bright, strong-minded, focussed and impressive person. She does not appear to be one who wallows in her problems but, rather, applies herself to achieve her goals. On all of the evidence, she is a good worker, academically able and has a demonstrated ability to know what she wants and to work towards that end. She has indicated that she aspires to become a university instructor, and there is no reason to doubt that she will attain that goal.

Wage Loss

[64] The parties have agreed that the plaintiff sustained a wage loss as a consequence of the accident and her injuries. The agreed amount of that loss is $2,164.21.

Special Damages

[65] The parties have also agreed that the plaintiff incurred out-of-pocket expenses which she is entitled to recover as special damages in the amount of $351.00.

SUMMARY AND CONCLUSION

[66] The accident of December 24, 2005 was caused by the negligence of the defendant.

[67] In that accident, the plaintiff sustained injuries which entitle her to recover damages as follows:

1.	Non-pecuniary damages	$22,000.00
2.	Lost wages	$2,164.21
3.	Special damages	$351.00
	Total:	$24,515.21

[68] The plaintiff is entitled to recover pre-judgment interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79, in respect of the lost wages and special damages.

[69] In the absence of there being considerations of which I am unaware, the plaintiff shall recover her costs of this action. As the matter proceeded under the provisions of Rule 66, the cost regime provided there applies.

“The Honourable Mr. Justice Williams”

Citation:	*Reichennek v. Archibald,*
	2008 BCSC 1304