IN THE SUPREME COURT OF BRITISH COLUMBIA
Santiago v. James,
2008 BCSC 1669
Lyle Raymond James
Before: The Honourable Mr. Justice Burnyeat
Reasons for Judgment
Counsel for Plaintiff
Counsel for Defendant
Date and Place of Trial:
October 27, 28 and 29, 2008
 On August 13, 2002, Ms. Santiago was riding as a passenger on the motorcycle of Mr. James, was thrown off as a result of what she says was the negligence of Mr. James, and suffered injuries including loss of skin to various parts of her body, soft tissue injuries, various extension and strain injuries, a lingering loss of sensation in her fingertips, and a reoccurrence of previously suffered depression.
 Ms. Santiago had arrived from her home in Ontario that day and she and Mr. James drove on his motorcycle from Dewdney to Harrison Mills in order to have lunch. During that time, Ms. Santiago was wearing a tee-shirt, a leather jacket, leather but not motorcycle pants, and street boots. Ms. Santiago was also wearing a helmet supplied by Mr. James. Ms. Santiago was not wearing gloves. The motorcycle of Mr. James was a 1996 Harley-Davidson which did not have a “backboard” behind where Ms. Santiago was sitting as a passenger.
 After having lunch which did not include alcohol and after speaking with friends of Ms. Santiago, the parties left the Sasquatch Inn in Harrison Mills to return to Dewdney. Ms. Santiago testified that it was hot that day so that both she and Mr. James decided that they would not wear their heavy leather jackets. As a result, the jackets were put into the saddlebag of the motorcycle. After putting on their helmets, the parties got onto the motorcycle. Ms. Santiago testified that she then undertook her usual practice when she was a passenger on Mr. James’ motorcycle which was to lock her thumbs into the belt loops of the pants of Mr. James so that she could hang on to him. The testimony of Ms. Santiago regarding her thumbs being through the belt loops on his pants was not disputed by Mr. James.
 Ms. Santiago testified that Mr. James stopped the motorcycle at the exit to the parking lot, turned onto Lougheed Highway, and that they had travelled about 100 yards when she was thrown backwards off the motorcycle when Mr. James shifted the gears of the motorcycle between first and second “faster than normal”, “much greater”, “very fast acceleration”. Ms. Santiago testified that she had never experienced that kind of acceleration in the past when driving between 50 to 100 times with Mr. James and that Mr. James did not warn her that he was going to accelerate in that manner.
 In a July 22, 2008 Affidavit filed in these proceedings in support of an application pursuant to Rule 18A of the Rules of Court, Ms. Santiago stated: “Once onto the Lougheed Highway, the Defendant bolted forward and slammed his motorcycle into another gear. As he did this I was subjected to the powers of torque that tore my hands off his belt loops, throwing me backwards off the Defendant’s motorcycle.”
 After falling off, Ms. Santiago testified that she “spun around watching my fingers burn off”, that she felt “immediate pain” as she put her hands down to stop spinning before she used her feet to bring herself to a stop. She testified that Mr. James came back, helped her onto the motorcycle, and then drove her back to the Sasquatch Inn. At the Sasquatch Inn, she cleaned herself up in the washroom and she was given a tee-shirt to wear as the tee-shirt she had been wearing was virtually shredded.
 Ms. Santiago testified that her brother was called and that, when he arrived in about 15 minutes, he asked her whether she wanted to go to the hospital, she said that she wanted to go to a walk-in clinic, and that her brother then drove her to a walk-in clinic in Agassiz.
 Ms. Santiago described her condition immediately after the accident as being “lots of blood” on her hands and face, with her chin, leg, fingertips and hands bleeding, and both shoulders sore. Ms. Santiago was treated at the walk-in clinic before returning to her brother’s home.
 Ms. Santiago rested at her brother’s home for several weeks before being in a position to return to Ontario. Ms. Santiago testified that she spent about two and one-half weeks in bed, that the painkillers that she was given did not take away the burning sensation completely, and that “I couldn’t move”.
 Ms. Delauriers is a family friend. At trial, Ms. Delauriers testified that she observed the fingers of Ms. Santiago immediately after August 13, 2002 and took two photographs of the arms of Ms. Santiago. Those photographs were in evidence. They indicate extensive abrasions resembling burns on the arms of Ms. Santiago. While there are no photographs in evidence showing the hands of Ms. Santiago, I accept the evidence of Ms. Santiago and Ms. Delauriers that Ms. Santiago also experienced extensive abrasions resembling burns on her hands.
 Ms. Delauriers testified that she observed that Ms. Santiago could not put on her clothing or attend to the usual day to day matters because her fingers, hands, arms, back and left leg were so badly “burnt” and Ms. Santiago “couldn’t touch anything with her fingers because they were burnt”. Ms. Delauriers worked at an extended care hospital as a care aide and, accordingly, she was tremendously helpful in the initial recovery. In addition to helping Ms. Santiago dress and care for herself, Ms. Delauriers changed the dressing on the wounds and applied the prescription drugs to the wounds.
 Ms. Santiago testified that it was necessary for her to arrange for her children who had accompanied her on the trip to return to Ontario by plane and to pay for the airline tickets of her daughter and son-in-law to come to British Columbia so that they could drive Ms. Santiago’s car and Ms. Santiago back to Ontario after she had recovered sufficiently to be in a position to undertake that journey.
 Ms. Santiago left British Columbia on September 28, 2002. When she arrived in Ontario, she testified that “my whole body ached”, “everything caused me discomfort”, her children had to do the housework that she previously did but that her soft tissue injury and discomfort ended in December and early January, 2003.
 Ms. Santiago had been working as a “support service provider”. She was scheduled to return to work immediately after her return from her holiday in British Columbia. Because her return to Ontario was delayed, the family she was working for had to make other arrangements so that there was no employment with that family when Ms. Santiago returned.
 I find that, as a result of Ms. Santiago not having the employment that she had previously undertaken, Ms. Santiago became depressed. Previously, Ms. Santiago had been taking anti-depressants. She testified that she had stopped taking anti-depressants in May, 2002. When she learned that she no longer was employed, Ms. Santiago testified that she was “devastated – felt secure I would have a job for many years” and that she found it necessary to return to taking anti-depressants. I find that the reoccurrence of her depression is a direct result of the accident. I also find that Ms. Santiago is still taking anti-depressants.
INJURIES AS A RESULT OF THE ACCIDENT
 I make the following findings regarding the injuries of Ms. Santiago and the duration of her suffering relating to those injuries all as a result of the accident:
(a) soft-tissue injury and discomfort ending by December, 2002 or early January, 2003;
(b) numerous skin abrasion which well healed by the end of September, 2002 and which have left Ms. Santiago with no permanent scarring;
(c) a reoccurrence of depression by virtue of the loss of her employment and, although Ms. Santiago remains on anti-depressants, I find that her testimony at her March 12, 2007 Examination for Discovery accurately represents the result of the accident, being that , by December, 2002, her “depression aggravation had settled down to the way” it was before the accident. However, I also find that there was a reoccurrence of her depression in the spring of 2003 and that this depression was temporarily greater than the depression immediately before the accident;
(d) a permanent condition which Ms. Santiago describes as “pins and needles in her fingertips as soon as the winter gets cold”. As a result, I find that her ability to undertake winter sports such as curling, ice skating, and cross-country skiing has been curtailed as I find that, even when she is wearing gloves, Ms. Santiago suffers from pain in her hands if she is outdoors for more than one hour.
 In this latter regard, Dr. Andrew R. Woolfenden was admitted as an expert to testify to the nature and consequences of burns or abrasions. His January 5, 2008 expert report was in evidence. In his “Opinion”, Dr. Woolfenden states in part:
Sensory symptoms can occur after injury to the skin by way of secondary injury to sensory receptors in the skin (Reference 1). The mechanism by which various sensory complaints develop following skin injury (such as burn or abrasion) is poorly understood. Skin receptors are part of a sensory afferent pathway known as the “General Somatic Afferent” (GSA) system.
There are three main categories of receptors in the GSA pathway, which include mechanoreceptors (respond to mechanical deformation of tissue such as stretch, vibration, pressure and touch), thermoreceptors (receptors responsive to hot and cold) and nociceptors (receptors that respond to noxious or painful stimulation). While a majority of the sensory receptors are in the basal epidermis (i.e. deepest portion of superficial skin layer) and dermis (i.e. deepest skin layer), some types of sensory receptors do not have a specific receptor, and are “naked nerve endings” which infiltrate the skin to the level of the superficial epidermis (i.e. are near the surface of the skin). Thermoreceptors are “naked nerve endings”. While most abrasions do not affect sensory receptors because of their superficial nature, a deep abrasion (or a burn, such as a third degree which affects the dermis) may potentially affect sensation. Injury to peripheral sensory receptors can result in dysfunction of sensory perception and/or cause pain in the area of injury on a continuous or intermittent basis.
The term “allodynia“ is used when a stimulus that is not normally painful causes pain, and is a problem potentially seen in any type of sensory nervous system injury. Injury to sensory receptors in the skin can result in allodynia. An example of allodynia is when brief exposure to a cold environment that would normally cause the feeling of being cold instead results in discomfort that would not normally be experienced. It is my opinion that Ms. Santiago’s ongoing symptoms in her hands are therefore consistent with a allodynia secondary to denuding skin injury to the fingertips of both hands due to the motorcycle accident.
Ms. Santiago’s allodynia and altered sensation results in mild discomfort when she is in cold environments. However, a majority of the time, she is asymptomatic. As a result of her symptoms, Ms. Santiago has reduced her activities in the cold including the avoidance of shoveling snow and cross-country skiing, and has reduced walking in the cold. The most likely explanation of such symptoms is that some of the peripheral sensory receptors involved with perception of temperature have been affected by the skin injury to both hands. Since Ms. Santiago’s symptoms have been present for five years following the motorcycle accident, it is unlikely that there will be any further improvement in the symptoms.
The management of Ms. Santiago’s allodynia is quite straightforward. If she avoids cold stimulation of her fingertips, her symptoms do not occur. Therefore, either avoidance of cold stimulation, or protection of her fingertips by simple gloving should generally suffice. Since Ms. Santiago’s symptoms only occur when exposed to cold, pain modifying medication is not indicated. It is my opinion that it is unlikely Ms. Santiago will have significant discomfort in her fingertips with the use of proper insulated gloves of high quality, unless exposure to the cold is for prolonged periods of time. Specific glove choice is outside my area of expertise.
There is no other potential neurologic explanation for Ms. Santiago’s symptoms. Her sensory complaints are not indicative of an injury to a peripheral nerve, the brachial plexus, cervical nerve root(s), or the spinal cord. The symptoms are not suggestive of complex regional pain syndrome.
Ms. Santiago does not require any neurologic investigations. Standard nerve conduction studies are not helpful in establishing the diagnosis of peripheral sensory receptor injury, since nerve conduction studies are normal in such instances. Quantitative sensory testing, a method of testing temperature sensation, is subjective and therefore normal studies do not rule out a peripheral temperature receptor abnormality.
There was no way to prevent the development of Ms. Santiago’s symptoms with any form of treatment immediately after the accident. Ms. Santiago should be informed to wear well insulated gloves, preferably mitts, when she goes out in the cold. Ms. Santiago’s sensory symptoms in her fingertips should not affect employment except jobs in a cold environment (i.e. an outdoor job in the cold)
 At trial, Dr. Woolfenden stated that what was being suffered by Ms. Santiago was “relatively common” and that the condition was a “permanent problem”. He testified that burns or abrasions did not produce a different mechanism for causing such injuries. He also indicated the fact that there was denuding on only four fingers could still have resulted in pain outside “the area of injury” as this was “not well understood”. He did indicate that, in the absence of denuding, it would not have been possible to have long-term pain.
WAS MR. JAMES NEGLIGENT?
 Mr. James did not testify at the Trial. However, he was extensively examined at a March 12, 2007 Examination for Discovery. Mr. James stated that he had a motorcycle licence since 1966 but that, when he obtained that licence, there was never any “formal training” with respect to the operation of a motorcycle. He described the motorcycle as being a 1996 Harley Davidson with an 80 cubic inch engine and two cylinders. He indicated that there was a “hand strap” between the two seats but that there was no “backboard” on the motorcycle. He confirmed that a “backboard” was something that was “… positioned on the fender of a motorcycle to provide support to a passenger”.
 Mr. James estimated that Ms. Santiago had been a passenger on his motorcycle about 100 times. He indicated that he was comfortable with her. As to what instructions he had given to her on earlier occasions, he testified: “I just asked her if she was all set up and ready to hold on” and nothing else. He confirmed that he did not show Ms. Santiago where the hand strap was and stated: “no, I – no one’s ever used it”, “they usually just hold onto me”. He indicated that he initially gave Ms. Santiago the instructions to hold onto him and he confirmed that he did not instruct her how she should hold onto him. In the past, he indicated that she held onto “the side of my clothes or my back”. Mr. James was asked whether he gave instructions to his passengers and whether he told her to “wrap her hands around your waist” and he answered “no”, “I usually let them decide their own way of holding on”.
 Mr. James confirmed that he stopped before going onto Lougheed Highway, that he moved forward onto the highway and that he then accelerated the motorcycle. Mr. James was asked the following questions and gave the following answers:
Q And it’s when you accelerate the bike that she was thrown off?
Q When you’re changing gears and you’re ready to accelerate, did you warn Ms. Santiago that you were about to accelerate?
Q It’s when you drop it into second that you get a burst of acceleration?
Q It’s when that burst of acceleration occurred she was thrown off the back of the bike, correct?
 Mr. James could not remember where her hand was gripping when they started to move onto Lougheed Highway: “That was a long time ago. I can’t remember.” Mr. James confirmed that, when there was a passenger on the back of the bike, “one does not accelerate rapidly when they have a passenger”. Mr. James confirmed that he was “gaining speed” when coming out of first gear and going into second and that, when the gears were shifted into second, he would accelerate again.
 I find that Mr. James was an experienced motorcyclist. I also find that Ms. Santiago was an experienced passenger on a motorcycle and that she had considerable experience as a passenger on a motorcycle driven by Mr. James. As an experienced passenger, Ms. Santiago would have been very much aware of what occurs when the driver of a motorcycle shifts gears. I find that nothing on August 13, 2002 would have diverted Ms. Santiago’s attention away from what she could expect would be how Mr. James would operate his motorcycle. I find that she would have no expectation of sudden acceleration and that her previous experience including the trip that day from Dewdney to Harrison Mills would not have led her to believe that the motorcycle would be driven by Mr. James in a way that sudden acceleration would occur.
 I find that Mr. James did operate the motorcycle negligently that day. I find that he accelerated between first and second gear and beyond in an unsafe manner and at a rate which was far in excess of what a passenger like Ms. Santiago would expect and was entitled to expect. I find that the excessive acceleration was undertaken without warning Ms. Santiago that it was about to occur.
 The question which is raised on behalf of Mr. James is whether Ms. Santiago in any way exacerbated the injuries that were suffered as a result of something that she did or did not do. At her March 12, 2007 Examination for Discovery, Ms. Santiago agreed that wearing a leather jacket was “for safety” and that it was for the purpose of protecting her in the event that something happened that would cause her to come off the motorcycle. She confirmed that she took off the leather jacket because “it was hot”. She also confirmed that she was prepared to “sacrifice safety for the sake of comfort”. Ms. Santiago also confirmed gloves were available from her brother but that she was not wearing them as they were “too big for me”.
 On the question of whether the failure to wear what might be described by some as “appropriate” outerwear, I am satisfied that the following statement of Melvin L.J.S.C., as he then was, in Hagenbuch v. Fisher,  B.C.J. (Q.L.) No. 2883, is applicable so that I cannot conclude that any “contributory negligence” should reduce the compensation available to Ms. Santiago:
Yet the mere fact that you operate a motorcycle which exposes you to greater risk does not in itself cause a reduction in quantum on the basis of contributory negligence. I don't think clothing or the type of clothing or a policy decision relating to the type of clothing that individuals should wear when operating motorcycles or operating a motor vehicle should be the subject matter of a contributory negligence reduction in the compensation a plaintiff would otherwise receive, absent clear, compelling evidence that the lack of such clothing was a direct cause of the extent of the injury. In that respect, it would have to be, in my view, expert evidence.
I think as a matter of policy the court's should be very, very loathe to start on a course which would, in effect, create a policy decision as to the nature and type and design of clothing that individuals would wear when they are involved in the operation of motor vehicles or motorcycles; absent, of course, of legislation in that respect.
Consequently with reference to the contributory negligence claim, in my view, there should be no deduction in the reward I will make in favour of the plaintiff as a result of any contributory negligence on the part of the plaintiff. (at p. 4)
 Even if I am found to be incorrect in arriving to the conclusion that there would be no contributory negligence as a result of what Ms. Santiago was not wearing that day, I am satisfied that there was no expert or any evidence which would allow me to conclude that the lack of protective clothing was a direct cause of the extent of the injury.
NON-PECUNIARY DAMAGES THAT SHOULD BE AVAILABLE TO MS. SANTIAGO
 In submitting that the non-pecuniary damages of Ms. Santiago should total $45,000.00, counsel submits that the following decisions most closely approximate the injuries and the duration of the suffering from the injuries suffered by the Plaintiff: Laberge v. Wagner,  B.C.J. (Q.L.) No. 1302 (B.C.S.C.) ($17,500.00 where the tip of the index finger of the plaintiff was hanging by a thread of flesh after the accident and the rest of her hand was crushed and lacerated with a subsequent permanent weakening of the left hand); Farrant v. Laktin,  B.C.J. (Q.L.) No. 320 (B.C.S.C.) ($20,000.00 where pre-existing degenerative disc disease was brought on earlier than what might have been expected as a result of an accident where soft tissue injuries were experienced); Rubino v. Lerfold,  B.C.J. (Q.L.) No. 386 (B.C.S.C.) ($17,000.00 where there was a finding that there was a low moderate whiplash injury with pain and discomfort for six months in the neck and for in excess of a year in the back); McDonald v. Pearce,  B.C.J. (Q.L.) No. 1702 (B.C.S.C.) ($17,500.00 where there was a feeling of nausea for two weeks, intense pain in the neck, upper back and right shoulder, sleeping problems for a period of four months, and a minor cut to the face, with pain in the neck, right shoulder, upper and lower back, right hip and knee of the plaintiff); Callan v. Unger,  B.C.J. (Q.L.) No. 387 (B.C.S.C.) ($15,000.00 where the accident made the plaintiff “functionally disabled” from lifting anything heavier than 20 pounds and $5,000.00 for “loss of handyman capacity”. In awarding $5,000.00 in this latter regard, Kirkpatrick J., as she then was, stated that there was an inability to “… perform chores around the home such as painting, pruning, yard maintenance, etc.” although the plaintiff had conceded that he could do most of those chores albeit with some discomfort. Kirkpatrick J. concluded: “I think that the plaintiff will require some assistance in these services beyond that which he would have required had the accident not occurred.” (at p. 23)).
 Relying on the following decisions, counsel for Mr. James submits that the non-pecuniary damages available to Ms. Santiago should be in the range of $10,000.00 to $20,000.00: Hagenbuch v. Fisher,  B.C.J. (Q.L.) No. 2883 (B.C.S.C.) ($12,000.00 where the plaintiff suffered a “scrape type injury to the right elbow area”, a “rather serious looking injury to the lower part of the right leg and to the top of the right foot”, the requirement that 40 to 50 stitches were used to close the wound, a large disfiguring scar, and a diminished ability to play sports; Bob (Guardian Ad Litem for) v. Bob,  B.C.J. (Q.L.) No. 424 (B.C.S.C.) ($7,500.00 where there was a finding that the plaintiff suffered a six to seven centimetre “ragged, dirty and full-thickness flap laceration of the occipital scalp and abrasions on the back and buttock that had fully healed within two months”); Kovacevic v. Leischner,  B.C.J. (Q.L.) No. 2039 (B.C.S.C.) ($12,000.00 where an accident resulted in glass being imbedded in the face and scalp of the plaintiff, bruising on her nose, the left side of her cheek, the top of her head, both forearms, and her left knee, with some inattention caused by the pain which resulted, and by mild depression, with bruising and abrasions healed within approximately two weeks but with ongoing headaches which affected the concentration and the ability to sleep of the plaintiff); and Hildebrand v. Flint,  B.C.J. (Q.L.) No. 2823 (B.C.S.C.) ($20,000.00 where the plaintiff suffered abrasions to the right and left forearm, left wrist, left upper leg, left forehead, left cheek and left jaw, with soft tissue injuries to his neck and his right shoulder, with pain, discomfort and interruption of normal leisure activities lasting for 18 months).
 Taking into account the injuries suffered by Ms. Santiago and the duration of those injuries, the reoccurrence of depression which I find to have resulted from the negligence of Mr. James, the loss of capacity associated with her injuries, and the long-term sensory complaints which I find can only be partially alleviated by protective gloves, I assess the non-pecuniary damages of Ms. Santiago at $40,000.00.
 Regarding past wage loss, Ms. Santiago was working as a “support service provider”. She started in that capacity in September of 2001. She provided support services for two adult males with developmental problems whose effective age was six or seven. She was paid $12.00 per hour for 35 hours even though she sometimes worked in excess of 35 hours a week. Ms. Santiago stated at her Examination for Discovery that she was working 35 to 40 hours a week, that she was not paid overtime, that E.I. premiums and income tax were deducted from the $12.00 per hour that she was receiving. Ms. Santiago testified that when she resumed employment in July, 2003, she was initially working at $10.00 an hour and after six months at $12.00 an hour. The income tax returns for Ms. Santiago indicated the following. 2002: $17,999.00 (T4 income) and $4,466.00 (“Employment Insurance benefits”); and 2003: $11,430.00 (T4 income) and $10,230.00 (“Employment Insurance benefits”).
 I assess the past wage loss of Ms. Santiago for the 47 weeks between September, 2002 and July 23, 2006 at $19,740.00 but subtract from that figure the $14,696.00 accumulated Employment Insurance benefits received by Ms. Santiago.
 Regarding the claimed special expenses of Ms. Santiago, a number of paid bills indicating expenses for bandages, bandage pads, and flammazine were in evidence. They were for $10.33, $72.55, $11.27, $10.32, $18.16, $12.82, and $42.47. Additionally, Ms. Santiago claims for the cost of snow removal averaging $400.00 per year as a result of her inability to clean her 110 foot sidewalk. Ms. Santiago also claims for the cost of five airfares relating to having her three children return to Ontario in order that they could attend school while Ms. Santiago was recuperating in British Columbia and the two airfares for two adults to come out to British Columbia so that the vehicle of Ms. Santiago could be returned to Ontario with them rather than her driving.
 Unfortunately, there are no receipts for the airline tickets or for the cost of snow removal. Counsel for Mr. James also raises the question of why it was necessary for two adults to come out to British Columbia in order that the vehicle of Ms. Santiago could be returned to Ontario when it would have been possible for the car to be shipped to Ontario while Ms. Santiago returned there by air. I am satisfied that it was not unreasonable for Ms. Santiago to act as she did and, in any event, there was nothing in evidence which would allow me to conclude that the airfare for Ms. Santiago plus the cost of shipping the vehicle would have been less than the airfare for the two adults who came out to British Columbia.
 Counsel for Mr. James does not question the disbursements alleged by Ms. Santiago. Rather, counsel takes issue with the fact that no receipts have been produced.
 I accept the evidence of Ms. Santiago that the cost of snow removal has amounted to approximately $400.00 to $450.00 a year and that the airline tickets were approximately $3,000.00. In the circumstances, I allow the total special expenses of Ms. Santiago at $4,000.00.
 Unless the provisions of Rule 37B of the Rules of Court apply, Ms. Santiago will be entitled to her Scale B costs throughout.
“The Honourable Mr. Justice Burnyeat”