Date of Release: January 24, 1996 No. 1158/92 Victoria Registry IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ) ) NORA EFFORD ) )REASONS FOR JUDGMENT PLAINTIFF) )OF THE HONOURABLE AND: ) )MADAM JUSTICE QUIJANO SHARI-LYNN BONDY, carrying on ) business as Zodiac Whale ) Watching And INTER-ISLAND ) EXCURSIONS LIMITED ) ) DEFENDANTS) R. L. Richey Counsel for the plaintiff D. A. Cave Counsel for the defendants Dates and Place of Hearing October 23 - 25, 1995 Victoria, B. C. 1 On June 18, 1990, the plaintiff was injured while a passenger on a rigid hull inflatable whale watching boat operated by the defendant, Inter-Island Excursions Limited, out of Tofino, British Columbia. The plaintiff was injured when the bow of the boat, where the plaintiff was riding, came down hard while the boat was transiting the wake from a large fisheries vessel. The plaintiff says the defendant was negligent in the manner in which the boat was operated by the defendant's employee, Mr. Schulz, and in failing to adequately warn the plaintiff with respect to the risks associated with sitting in the bow of the boat. The defendant says that Mr. Schulz operated the boat according to the acceptable practice for similar vessels in the circumstances and that the plaintiff was adequately warned. 2 At the time of the incident giving rise to this claim the plaintiff was 43 years old and was employed as a registered nurse. She and her common-law spouse, Ed Croft, while in Tofino on a bicycle holiday of Vancouver Island, decided, having seen a sign inviting them to do so, that they would take a whale watching tour. They went to the offices of the defendant company and, while the plaintiff waited outside, Mr. Croft purchased tickets for the whale watching and hot springs tour scheduled to depart at around noon of that same day. Ms. Bondy who was, at all material times, the owner of the defendant company, said that at the relevant time there was a sign, about six inches by eight inches in size, taped to the front of the ticket desk which said, essentially, that if anyone had back problems or was pregnant to let the operator know. 3 After the tickets were purchased the plaintiff and Mr. Croft went into Tofino to pass the time until the tour was scheduled to start. At the appropriate time they returned to the tour office, picked up the wet water suits provided by the operator and put them on, then went down to the dock to board the tour boat. 4 The tour boat was a Zodiac Mark 5 rigid hull inflatable, approximately 19 feet in length. The boat was outfitted with bench-type seats, oriented from side to side, all facing forward. The seating capacity of the boat, as configured, was 12 passengers plus the operator. The seats had padded bottoms and unpadded backs. The bench seat in the bow had no forward handholds or other forms of support whereas the seats behind the bow seat had access to handholds along the top of the back of the seats immediately in front. 5 Mr. Schulz said that his standard statement to passengers before boarding included advice with respect to the fact that the bow seats were the roughest and bounciest and that persons with back problems or pregnant women ought to sit further back in the boat. The plaintiff acknowledged that before boarding she was advised that the seats in the bow were the bounciest and the roughest. While there is some dispute on the evidence as to whether Mr. Schulz advised persons with back problems to take seats further to the rear, I accept his evidence in that regard. 6 In spite of the warning the plaintiff chose to sit in the bow seat where she would be able to take photographs without having her view obstructed. She said that even if she had been told that persons with back problems should sit in the rear she would have chosen to sit in the bow because, although she had suffered a compound fracture of her T-7 and L-3 vertebrae in a tobogganing accident in 1970, she did not consider that she had any back problems as she had had no residual effects from that accident. However, on cross-examination the plaintiff acknowledged that after her original back injury she had been cautioned by her doctor not to work on adult floors where the requirement would be for heavier lifting because that would be asking for trouble. 7 The plaintiff said that the water was a bit choppy after the vessel left the dock in Tofino but that she had an enjoyable and comfortable ride out to the whale feeding area and, thereafter, on the trip to the hot springs. On the trip to the hot springs the plaintiff described the ride as a much longer ride than that to the feeding grounds and said she found the water quite choppy, enough so that water was splashing on her wet suit but, she said, it was still an enjoyable ride. 8 The trip to the hot springs required the passengers to disembark from the vessel, walk to the hot springs and back. This was done and on the return voyage the plaintiff again selected the bow seat. As the boat was heading back it was passed on its starboard side by a large fisheries vessel. The fisheries vessel created a wake which was markedly larger than the waves which the boat had been encountering. The height of the initial wake was estimated to be variously four feet to six feet. Mr. Schulz estimated that the height of the wave was about twice as high as the freeboard of the boat and said that as the freeboard of the boat was two feet he estimated the height of the wake at approximately four feet. Mr. Schulz also said that he had been a surfer for many years and had considerable experience in estimating heights of waves. The estimate of the height of six feet was given by Mr. Croft and was based on his own height and line of sight. I prefer the evidence of Mr. Schulz. 9 The evidence is in conflict with respect to the details of the way in which Mr. Schulz operated the vessel in approaching and transiting the fisheries vessel wake. The plaintiff and Mr. Croft both said that the boat did not slow at all in approaching the wave and that the operator speeded up when going up the face of the wave, that the bow of the boat became airborne at the crest and then dropped into the trough between the two wakes with tremendous force, resulting in the back injury suffered by the plaintiff. Mr. Schulz says that as the wake approached he slowed the vessel down to about two knots, just to maintain steerage, headed into the wake at about a 90o angle and as the vessel started up the face of the wave he increased the throttle by about one-half in order to maintain steerage up the face of the wave so that the wave could pass under the boat. Mr. Schulz said that the wake thrown off by the fisheries vessel consisted of steep, close-together waves, an observation supported by the evidence of the experts. Mr. Schulz said that the bow of the boat transited the top of first wave of the wake and then dropped down onto the top of the following wave. 10 The plaintiff bases her claim on her perception that Mr. Schulz increased the speed of the boat too much going up the face of the wake with the result that the bow became airborne and slapped down with considerable force into the trough behind the wave. She said she thought the operator was giving the passengers a thrill. Mr. Schulz says that he did not ascend the wave too fast, that he only gave the boat enough power to keep it going forward into the wave so that the wave could pass under it. 11 It is apparent from the evidence of all of the experts that a rigid hull inflatable vessel has three modes of operation: displacement mode, semi-displacement mode (transitional) and planing. The range of speeds of the vessel in each of the modes depends on the waterline length of the vessel and the load at any particular time. This is significant in relation to the conflicting evidence with respect to the estimated speed of the vessel in approaching and transiting the wake. At displacement speed the boat sits in the water and pushes the bow wake in front of it. At semi-displacement speed the speed of the boat has increased to the point where the bow lifts out of the water pushing the stern down into the water. This semi-displacement speed is the stage between displacement and planing and is not a speed at which one would operate the boat for prolonged periods. Planing is achieved once the speed of the boat has increased to the point where the bow begins to surf on the bow wake and pulls the stern of the boat upward so that the boat achieves a horizontal attitude. 12 All of the experts, Captain Toxopeus for the plaintiff, and Captain Young and Mr. Weisgerber for the defendant, said that in ascending a wake in a rigid hull inflatable it is appropriate to start from displacement speed at the bottom of the wake and increase the speed of the throttle enough to keep the boat going forward, maintaining steerage, to allow the wake to pass under the boat. They each said that no matter how judiciously the throttle was applied in maintaining forward speed over the wave, the bow of a rigid hull inflatable will come out of the top of the wave or wake into the air before the wave passes under the center of longitudinal gravity of the boat, at which point the bow will either fall downwards into the trough behind the wave or, if the waves are close enough together, will come down on the top of the next wave. All of the experts also said that the bow of the boat would drop into the following trough if the boat was going too slowly. 13 Nowhere in the evidence was it suggested that the boat was being operated in an attitude, or trim, which was consistent with either the semi-displacement (transitional) mode or planing during the relevant time. From the description by Ms. Efford, Mr. Croft and Mr. Schulz of the movement of the boat through the water it appears that it was being operated at displacement speed. THE ISSUES 14 There is no dispute that the plaintiff's injury resulted from the jarring effect on her of the impact of the bow of the boat in transiting the wake from the fisheries vessel. The questions raised on the evidence and in argument can be summarized as follows: 1. Is the standard of care expected of the operator, where passengers are taken for hire and there is an inherent risk in the enterprise, so high that as a result of the injury the onus shifts to the defendant to disprove negligence? 2. Did Mr. Schulz operate the boat in a negligent manner? 3. Was there a duty to warn? If so, 4. Was the warning sufficient? 15 The plaintiff says that the fact of her injury shifts the onus to the defendant to establish that it was not negligent. In Day v. Toronto Transportation Commission, [1940] S.C.R. 433 it was held that a public carrier owed a very high duty of care to its passengers and that the standard of care was so high that the fact that an injury occurred to a passenger while in the care of the public carrier shifted the onus to the public carrier to establish on a balance of probabilities that it was not negligent. Day v. Toronto Transportation Commission did not consider the standard of care to be applied to commercial enterprises where the primary purpose is not the safe carriage of passengers for hire especially where, as here, there is a recognized element of risk involved. In this case, the onus remains on the plaintiff to establish that the defendant was negligent in the operation of the vessel and that the plaintiff suffered injury as a result. 16 The experts all acknowledged that the sea is unpredictable and that it is up to the operator of the vessel to determine the appropriate response to the conditions as he or she encounters them using his or her skill and judgment at the time. On the whole of the evidence, Mr. Schulz operated and manoeuvred the boat in accordance with accepted safe boating practices for similar vessels in similar circumstances. The plaintiff has not established on a balance of probabilities that the defendant was negligent in the operation of the vessel. 17 A substantial portion of the trial was concerned with the configuration of the seating in the vessel. Much of the evidence given by Captain Toxopeus on behalf of the plaintiff in this regard suggested that the type of seating was not the safest type and that sit-astride seating was to be preferred. Captain Toxopeus was candid in his acknowledgement that his evidence with respect to the preferability of sit-astride seating was based on the Coast Guard experience in the use of similar vessels for search and rescue purposes and was, to a large extent, hindsight. It is clear from the evidence of all of the experts that in the whale watching industry, and in other commercial use of rigid hull inflatable boats for passenger purposes at the time of the accident, the defendant was a leader in establishing standards for the most appropriate form of seating for the particular enterprise. 18 The plaintiff also argued that the failure of the defendant to provide adequate hand supports to the bow seats contributed to the risk of injury to passengers sitting in the bow. Captain Toxopeus, on behalf of the plaintiff, gave evidence that an elevated rigid handhold forward of the bow seat would have provided some additional shock-absorbing ability to passengers in the bow but Captain Young and Mr. Weisgerber, the experts called on behalf of the defendant, both said that the installation of a rigid handhold forward of the bow seat would create an additional hazard. 19 It is clear that at the time of the accident there was no "standard configuration" in the whale watching industry and I accept Mr. Weisgerber's evidence that the configuration used by the defendant in the vessel at the time of the accident set the standard for the industry. While the fact of the defendant being a leader in the industry with respect to the configuration of the vessel is not determinative of the question of negligence, I am satisfied on all of the evidence that the plaintiff took all reasonable steps to provide safe and comfortable seating for the passengers given the knowledge in the industry at the time and therefore was not negligent in configuring the vessel as it did. 20 The question remains as to the duty to warn. I have accepted that the defendant's operator, Mr. Schulz, advised all of the passengers that the roughest and bounciest ride was in the bow and that persons with back problems or who were pregnant ought to sit further back in the boat. There was no evidence to suggest that the ride in the bow of a rigid hull inflatable is so inherently risky that passengers ought not to be allowed in the bow of the boat. It is implicit in the warning given that the defendant was aware that the roughness or bounciness of the ride might result in injury in some circumstances. I accept the plaintiff's uncontradicted evidence that she was not instructed as to what to hold on to or how to brace herself if she needed to. 21 The British Columbia Court of Appeal in Philippot v. Murphy [Q.L. 1987 B.C.J. No. 530] (B.C.C.A.), dealing with the question of the duty to warn as a basis for a finding of negligence, said: ... However, as a minimum I think it can be said that a defendant cannot be in breach of a duty to warn of a danger unless he knew or reasonably should have known of the danger and that he knew or should have known that the person whom he did not warn did not know of the danger. I do not say that it would be enough to show that the defendant "should have known". It might have known. But even that much is lacking here. The fundamental basis of liability for negligence continues to be the creation of a foreseeable risk of harm. That basic principle applies as much to failure to warn as to any other kind of negligence; and is of particular importance in relation to such cases because the danger of applying hindsight rather than foreseeability is particularly serious. 22 It is apparent from the fact that the defendant felt it prudent to warn passengers about the rough ride in the bow that it was aware that there was a risk of injury to passengers seated in the bow in certain circumstances. In that situation it was reasonably foreseeable that persons seated in the bow might encounter situations during the trip which would require them to brace themselves or otherwise find ways to stabilize themselves in order to reduce the risk of injury. It is also reasonably foreseeable that passengers in the bow would not know of the proper ways to brace themselves or otherwise stabilize themselves without some instruction. The defendant, as a part of its duty to warn, ought to have provided instruction to passengers in the bow with respect to the location of safe handholds and the way in which to brace themselves in the event of rough going. The failure of the defendant to provide such advice or instruction was negligent. 23 The defendant says that the plaintiff was contributorily negligent in choosing to sit in the bow seat of the boat when she knew or ought to have known from the warning given that there was a higher risk of injury for persons seated there, particularly if they had prior back problems. The plaintiff knew that she had had a back injury in the past and that she had been advised by her doctors to avoid heavy lifting but nevertheless ignored the warning and sat in the bow. By doing so she was contributorily negligent. I fix the extent of the plaintiff's responsibility for her injury at 75 per cent and that of the defendant at 25 per cent. DAMAGES 24 The plaintiff claims damages for pain and suffering, out-of- pocket expenses, loss of future income and loss of the capacity to do certain kinds of work as a result of the permanent disability caused by the injury. 25 As a result of the accident the plaintiff suffered a compression injury to the L2 and L3 vertebrae which continues to cause her pain and discomfort to the date of trial and which has resulted in what appears to be a permanent disability in relation to her ability to lift weight in excess of 25 pounds. It appears from the medical reports that the injury to the L3 vertebrae may have been an exacerbation of a previous injury to that vertebrae but it is not possible from the evidence to determine the extent to which, if any, the pre-existing condition is reflected in the plaintiff's present complaints. The plaintiff says that as a result of the L2-L3 injuries and the consequent inability to lift objects weighing more than 25 pounds, she suffered a loss of income prior to trial and will continue to suffer a loss of income after trial. 26 I have been referred to a number of cases by both the plaintiff and the defendant dealing with the appropriate quantum of damages for pain and suffering for injuries similar to those suffered by the plaintiff. The plaintiff's cases fall within the range of $50,000.00 to $60,000.00 for non-pecuniary damages while the defendant's cases suggest a range of $25,000.00 to $30,000.00. While the defendant's cases do relate to similar injuries they are from the last half of the 1980's. The plaintiff's cases are more recent but the plaintiff's injuries are less severe than are the injuries in the cases referred to by the plaintiff. Considering the extent of the plaintiff's injuries and the consequent pain and suffering I fix non-pecuniary damages at $40,000.00. 27 Past wage loss is agreed to have been in the amount of $8,139.60. 28 The plaintiff claims damages for loss of future income. It is apparent from the plaintiff's evidence that had she wished to continue her employment as a nurse she could have done so but she chose to change her career path for reasons unrelated to the injury. The plaintiff elected to give up the security of her long- time employment and go into business for herself. 29 The plaintiff presently operates a health care consulting business which requires her to, amongst other things, provide nursing or other health care services in remote areas. The plaintiff says her inability to lift in excess of 25 pounds has adversely affected her business income because she does not know what kind of circumstances she might encounter in remote areas and cannot, therefore, offer services to remote areas. The evidence before me does not establish that the plaintiff's ability to earn an income through her consulting business has been adversely affected by her injuries. I find that there has been no future loss of income proven to be attributable to the injuries suffered by the plaintiff in this action. 30 The plaintiff also claims damages for loss of capacity to earn income. In Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (B.C.C.A.), the British Columbia Court of Appeal described the loss of capacity to earn income as equivalent to the loss of a capital asset, distinct from the question of loss of future income as a head of damage. The issue of compensation for loss of future earning capacity raises questions different from those relevant to the issue of loss of future income because the compensation sought is for the impact of the injury on the ability of the plaintiff to earn income from all types of employment. The relevant question is has the injury rendered the plaintiff less marketable or attractive to potential employers and so caused the plaintiff to lose the ability to take advantage of all job opportunities which might otherwise have been open to her in a competitive labour market. 31 There is no question that the injuries suffered by the plaintiff have reduced the plaintiff's ability to take advantage of job opportunities which might otherwise have been available to her and has thereby reduced the value of her capacity to earn an income in a competitive labour market as contemplated by the Court of Appeal in Kwei v. Boisclair, supra. Compensation for such a loss is difficult to quantify but on the basis of all of the circumstances I find the appropriate compensation to the plaintiff for loss of capacity to be $40,000.00. 32 Special damages are admitted to be $7,533.13. SUMMARY 33 In accordance with the finding of contributory negligence, the damage awards are to be reduced by 75 per cent. Accordingly, the plaintiff shall recover 25 per cent of the following: 1. Non-pecuniary Damages $40,000.00 2. Special Damages 7,533.13 3. Past Wage Loss 8,139.60 4 Damages for Loss of Capacity 40,000.00 TOTAL $95,672.73 25% of $95,672.73 =$23,918.18 34 The amounts fixed as damages for pain and suffering and loss of capacity are based on the appropriate amount as of the date of this judgment and therefore court order interest will apply only from that date. On past wage loss and special damages court order interest will apply in accordance with the Court Order Interest Act. 35 As success was divided each party will bear their own costs unless either party wishes to speak to the matter of costs in which case an application can be set down for hearing before me. "Quijano J." January 23, 1996 Victoria, British Columbia