Andrusko v. Alexander, 2013 BCSC 985

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Andrusko v. Alexander, 2013 BCSC 985 Date: 20130604 Docket: 09-5631 Registry: Victoria Between: Christopher Andrusko Plaintiff And Alison Ellen Alexander and Lee Renforth Hickman Defendants Before: The Honourable Madam Justice Fitzpatrick Reasons for Judgment Counsel for the Plaintiff: B.J. Flewelling Counsel for the Defendants: S.P. Casey Places and Dates of Trial/Hearing: Fort St. John, B.C. December 11-14, 2012 Vancouver, B.C. February 28, 2013 Place and Date of Judgment: Victoria, B.C.

June 4, 2013 Introduction [ 1 ] The plaintiff, Christopher Andrusko, was involved in a motor vehicle accident on January 3, 2008 in Fort St. John. His vehicle collided with the vehicle driven by the defendant, Alison Alexander, and owned by her husband, the defendant Lee Hickman. Both were driving on a wintry afternoon and approaching each other from opposite directions on the same street. Mr. Andrusko hit Ms. Alexander’s car while she was trying to make a left-hand turn. [ 2 ] Both parties blame the accident on the other, so liability or degrees of liability are in issue. [ 3 ] Mr.

Andrusko claims injuries arising from the accident relating to his neck, left shoulder, leg and low back. The low back pain is said now to be chronic. He claims non-pecuniary losses, loss of earning capacity, cost of future care, and special damages. [ 4 ] Therefore, the issues for determination are: 1. Who is liable for the accident? 2. If liability on the part of the defendants is established, what are the proper damages to be assessed? The Facts Prior to the Accident [ 5 ] Mr. Andrusko is currently 26 years old.

He has limited education, having only completed Grade 10. [ 6 ] Since he left school at the age of 16 years, he has had a number of jobs, mostly involving physical labour. He started as a fry cook at Kentucky Fried Chicken. From 2002 to 2004, he was employed in Edmonton, Alberta as a labourer doing basic carpentry work. From 2004 to 2006, he was employed in Gibsons, B.C. as a car detailer, which job involved cleaning and washing cars.

[ 7 ] He returned to Fort St. John in 2006 and obtained employment at Joy Propane earning $16 per hour. Joy Propane does some bulk sales of propane, but it is largely a retail supplier of fuel. It conducts its business in two areas. Firstly, it operates a commercial side where commercial vehicles will pull up and load the propane. In addition, customers will come and fill up the normal type of cylinders that you see on barbecues. Secondly, there is a vehicle division where a fuel attendant will fill up a vehicle just as you would normally do at a gas station. [ 8 ] Mr. Andrusko was a fuel attendant and labourer.

He worked on both sides of the business. As part of the commercial side, he was involved in pumping fuel and dealing with all types and sizes of propane tanks, from small 20 pound ones for the barbecue going up to 100 pound tanks for commercial purposes. When full, these tanks would be almost double the weight as when empty. Thus, dealing with these tanks required physical effort. There was less physical effort required while working on the vehicle side of the business. [ 9 ] Mr. Andrusko was employed by Joy Propane at the time of the accident. His boss, Steven Stanway, described Mr.

Andrusko as a reliable and hard worker. He also described an incident involving Mr. Andrusko that caused him to conclude that Mr. Andrusko was honest and forthright. Mr. Stanway indicates that prior to the accident, Mr. Andrusko had no difficulty in completing his duties. [ 10 ] Mr. Andrusko has been in a long-term relationship with Jody Stroud for about eight years. She is also 26 years old and employed as a receptionist. They met in 2004 and began living together shortly thereafter. They currently live in Fort St.

John, and at the time of the trial, they were engaged to be married in the spring of 2013. [ 11 ] Mr. Andrusko described himself as having no difficulty in completing his physically demanding jobs prior to the accident. In particular, he says that he had no neck, shoulder or low back pain. This evidence is confirmed by Ms. Stroud, who also said that Mr. Andrusko was in good health. She did not observe any neck, left shoulder or low back pain, or any numbness in his left leg before the accident. [ 12 ] Although Mr.

Andrusko was involved in a motor vehicle accident in 2003, there were no injuries to his neck and back in that accident. The Accident [ 13 ] 100 th Street in Fort St. John is a major thoroughfare. It has two lanes of travel in both the north and southbound directions. It also has parking lanes on each side. The cross streets are Avenues similarly numbered such that the numbers increase as you move northbound. There is no traffic light at the intersection of 100 th Street and 102 nd Avenue where the accident occurred. [ 14 ] The accident occurred a little after 4 p.m. on January 3, 2008.

Dusk was approaching and it was a snowy day in Fort St. John. The roads were slippery and covered in compact snow. [ 15 ] Mr. Andrusko was 21 years old at the time of the accident. He had borrowed Ms. Stroud’s 1990 Chevrolet Cavalier to go to work. He had left his job at Joy Propane around 4 p.m. and was driving to the Tim Horton’s to get Ms. Stroud a coffee. He was wearing his seatbelt. He denies that he was tired after a day at work or that he was in a hurry to get to Tim Horton’s.

He turned onto 100 th Street around 93 rd Avenue and was proceeding northbound on 100 th Street in the lane nearest to the centre line. At the stop light at 101 st Avenue, Mr. Andrusko stopped at a red light and was first in line with no cars ahead of him. Accordingly, he had a clear unobstructed view along 100 th Street. He then proceeded on the next green light, approaching the intersection at 102 nd Avenue. He was familiar with the intersection, having driven it many times. [ 16 ] At the same time, Ms. Alexander was driving southbound on 100 th Street in a 1995 Dodge Neon owned by her spouse, Mr. Hickman.

She was approaching the intersection at 102 nd Avenue, where she intended to make a left turn. She was also in the lane of travel nearest to the centre line. [ 17 ] From this time forward, the evidence from Mr. Andrusko and Ms. Alexander widely differs. [ 18 ] What is uncontroversial, however, is that Mr. Andrusko’s vehicle struck the right back passenger side of Ms. Alexander’s vehicle with the front right passenger side of his vehicle as Ms. Alexander attempted her left hand turn in front of Mr. Andrusko. Ms.

Alexander’s vehicle spun and ended up facing west on 102 nd Avenue, the opposite direction from her path of travel. Mr. Andrusko also veered off and spun around, coming to a stop in the lane of oncoming southbound traffic about three to four car lengths beyond the intersection. He managed to pull the vehicle back into the northbound lane and then parked further up on 100 th Street. [ 19 ] Mr. Andrusko described the impact as “pretty severe”. Both of the airbags in Mr. Andrusko’s vehicle deployed.

His vehicle sustained damage at the front passenger side estimated at a value of $4,227.93, causing ICBC to write it off. After the Accident [ 20 ] Immediately after the accident, Mr. Andrusko was attended to by paramedics, but he declined to receive medical treatment at the time. The paramedics did notice a seatbelt line on Mr. Andrusko, presumably from the impact, and they suggested that he would probably be sore. A paramedic recommended that he visit the emergency room at the hospital. Mr.

Andrusko did not do so, although he says that his neck, left shoulder and back started to bother him. [ 21 ] The RCMP also attended the scene, and Mr. Andrusko gave the police a statement. No traffic infractions were ticketed as a result of the accident. [ 22 ] After giving his statement, Mr. Andrusko found a camera in his car and went about taking various pictures of the vehicles. He

also cleaned out his car while waiting for his friend, Josh Woods, to pick him up. Immediately afterwards, Mr. Andrusko and Mr. Woods went to Wal-Mart to get the photographs developed. He then went home. [ 23 ] Over the next few days, Mr. Andrusko had a sore and stiff neck and left shoulder. After a day or two, he started to feel lower back pain. Again, this evidence was confirmed by Ms. Stroud, who observed him experiencing pain in his neck, shoulder, low back and left leg. Ms.

Stroud also observed that the neck and left shoulder pain would come at the same time, as would the low back pain and left leg numbness. [ 24 ] Mr. Andrusko went to a walk-in clinic in the first few days after the accident and saw Dr. Brussow. Later, he would see his family doctor, Dr. Van Zyl. Dr. Van Zyl prescribed various medications, including sleeping pills, muscle relaxants and anti- inflammatory drugs. He began taking this prescription medication in January 2008 and continues to take this medication as needed to this day. [ 25 ] Mr.

Andrusko has tried certain treatments over the years to address his injuries. Shortly after the accident, beginning on January 11, 2008, he started to see a chiropractor at North Peace Chiropractic. He regularly saw a chiropractor during 2008 and into early 2009. He obtained some relief but found that the pain returned about a week later. [ 26 ] After being disappointed with the results from the chiropractor, Mr. Andrusko was referred by Dr. Van Zyl to a physiotherapist for treatment. He began treatment at Fort St.

John Physio Clinic on January 30, 2009 and regularly saw a physiotherapist during 2009 (eleven visits), 2010 (three visits), 2011 (four visits), and 2012 (three visits). He was continuing to see a physiotherapist at the time of trial. [ 27 ] Mr. Andrusko also tried massage therapy one time in August 2008 but decided that it did not assist him. [ 28 ] Fortunately, Mr. Andrusko only missed one day off work. He returned to his job at Joy Propane, although he was put on lighter duties on the vehicle side.

He did, from time to time, lift 20 or 30 pound tanks after that time, but he was no longer involved in lifting the larger 100 pound (when empty) tanks as he had previously done. His new duties involved filling propane tanks in vehicles, which required some bending and turning for smaller cars. Generally, these lighter duties did not stress his lower back. Nevertheless, he still indicated that his back was irritated and would bother him from time to time as a result of his job at Joy Propane. [ 29 ] In March 2009, Mr. Andrusko was let go from Joy Propane for fighting with a customer.

He then obtained a temporary job as a labourer for about a month. [ 30 ] Later, in 2009, he obtained a job at H2Oasis as a delivery driver and bottle washer. He indicates that his job involved twisting, turning and bending, so his back was irritated again. As part of his job, he was required to work with five gallon tanks of water. He left his job at H2Oasis after a change in management and after an issue developed with his employer about a repair bill. [ 31 ] In the summer of 2010, Mr. Andrusko obtained a labourer position at DGS Astro Paving (“DGS”).

His friend, Jeffrey Higgins, who was working as a foreman there, got him the job. DGS is involved in the construction of roads, parking lots and driveways. This is a seasonal job which requires a rigorous

schedule from the spring (April/May) to the time the snow flies (usually November). Mr. Andrusko was required to work 12 to 16 hour days about six to seven days a week. Many of his initial duties included very physical work, including working with heavy materials and manual shovelling. In addition, he operated various pieces of equipment. [ 32 ] Mr. Higgins was aware of Mr. Andrusko’s low back problems when he was hired at DGS. He gave Mr. Andrusko certain lighter duties as a worker in his crew, but he did not play favourites. Mr. Higgins confirmed that Mr.

Andrusko would complain about his back from time to time, although he did not consider Mr. Andrusko to be a complainer. [ 33 ] Mr. Andrusko was later promoted to the position of lead hand at DGS in early 2011, which resulted in him doing less labour work and more supervisory work. [ 34 ] Mr. Andrusko says that often his neck, shoulder and low back will bother him after work at DGS such that he has to medicate with muscle relaxants when he gets home. He often experiences pain when running equipment that requires him to look behind. When this happens, his shoulder and neck stiffen up and he gets intermittent pain.

This happens more frequently by the end of the working season, but it improves over the winter months when he collects employment insurance. [ 35 ] Mr. Andrusko continued with his seasonal job at DGS for the 2011 and 2012 seasons. In November 2012, at the end of this season, he obtained a temporary job for about two weeks at Haycove Contracting, where he did snow removal using a bobcat. He indicates that his back bothered him while operating the bobcat. [ 36 ] At the time of the trial, Mr. Andrusko had applied for employment insurance and was waiting to hear back from the government. In the meantime, Mr.

Andrusko was also studying to get his Class 3 driver’s license. [ 37 ] Mr. Andrusko’s evidence is that he has continued with his employment duties since the accident, but that he has had pain and numbness since that time. His evidence is corroborated by that of Ms. Stroud, who observed him coming home from work at Joy Propane, H2Oasis and DGS in pain from completing his duties. Ms. Stroud also confirmed that his pain was more severe at the end of the season with DGS. She said that the pain was severe at least once a week.

She also confirmed that while his injuries have improved since the accident, the level of those injuries has stayed the same for the last two years. [ 38 ] Mr. Andrusko’s injuries have affected his day-to-day activities. He appears to have help doing the more physical chores at their home, including snow shovelling and lawn mowing. On long drives, he experiences pain and has to stop and stretch to alleviate the pain. He cannot sit long to play video games or work in his music studio. He also has trouble starting the lawnmower. Finally, he is more irritable and cranky in his relationship with Ms.

Stroud. [ 39 ] In terms of the duration of his injuries, Mr. Andrusko indicates that his neck and shoulder bother him at least twice a week. He

indicates that his neck and shoulder are staying the same at this point in time. [40] Mr. Andrusko’s complaints about his lower back are more serious. He says that he has low back pain or soreness just below hisbeltline every day. Some days are worse than others when he experiences sharp pain. He has also had some numbness in his left legsince the accident, which is present all the time. Twisting and bending aggravates the pain. He indicates that on a bad day, about once ortwice per week, the pain is 10 out of 10. On average, he rates his pain as 6/7 out of 10.

He tries to use sleeping pills, muscle relaxants andanti-inflammatories when the pain is too bad, but he finds that they can make him very drowsy. He says that he cannot function at workwhen he is drowsy, and given his line of work, he understandably has safety concerns if he is less than alert. [41] Mr. Andrusko does not use any aid for his injuries. He did buy a back belt, but he was advised some years ago not to use it.Although he is not an avid exerciser, he regularly completes exercises for his core and his left leg about three times a week in his home. [42] Mr. Andrusko is also an avid music lover.

In 2009, he started a small business named “Too Die for Recordz”, in which heoperates as a mobile disc jockey for small events. He also constructed his own music studio, where he likes to make, mix, record andproduce music. He has invested quite a sum of money purchasing equipment for this venture, although his gross profit from this venturehas been nominal: 2009 - $4,242; 2010 - $1,085; and 2011 - $1,008. He describes this more as a hobby, which is evident when hecalculates his net income losses for these years. [43] Mr.

Andrusko spends considerable time working on his music business, particularly during the off-season from his job at DGS.He can work for eight to ten hours a day up to seven days a week. While he was questioned regarding his ability to sit for so long, heindicated that he was able to get up and move around to alleviate the pain caused by sitting for prolonged periods of time. [44] Mr. Andrusko is very interested in developing his music business to the point of making more money. He has not taken anymusic engineering courses, nor does he have any plans to do so. He describes himself as more self-taught. [45] Mr.

Andrusko is fairly uncertain about his future. He currently plans to continue to live in Fort St. John and stay in the employof DGS where he makes what he calls “good money” (about $52,000 per year). He may apply to be a foreman at DGS in the future. Hewants to try to get his Class 3 driver’s license, which would allow him to operate larger trucks. [46] He is not sure how he could continue with either his present position or as a truck driver if his low back condition worsened,given the physical requirements of both jobs. He does not see a sedentary office job in his future given his educational limitations.

Inaddition, given his somewhat prickly personality, he quite candidly admits that he would prefer not working in a job where he wouldhave to deal with the public. Credibility and Reliability of Evidence [47] Credibility arose on two points: firstly, the evidence of Mr. Andrusko and Ms. Alexander in respect of liability; and secondly,Mr. Andrusko’s evidence on the damage issues. [48] The factors to be considered when assessing credibility were summarized by Dillon J. in Bradshaw v.

Stenner, 2010 BCSC1398: [186] Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witnessand the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), (SCC), 59 S.C.R.452, 50 D.L.R. 560 (S.C.C.)).

The art of assessment involves examination of various factors such as the ability and opportunity toobserve events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct andcross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie,and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont. H.C.); Faryna v.

Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) [Faryna]; R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)).Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a wholeand shown to be in existence at the time (Faryna at para. 356). [49] If the plaintiff’s account of his or her change in physical, mental, or emotional state as a result of the accident is not convincing,then the hypothesis upon which any expert opinions rest will be undermined: Samuel v.

Chrysler Credit Canada Ltd., 2007 BCCA 431 atparas. 15, 49-50. [50] I will address the credibility issues below. Liability The Parties’ Positions [51] As stated above, Mr. Andrusko was driving along 100th Street after the light had turned green at the intersection of 101st Avenue. Mr. Andrusko estimated his speed at 35-40 km/hour although he was not particularly sure of his speed. He indicated in hisevidence that he was driving at an appropriate speed and definitely below the speed limit of 50 km/hour. [52] As he was proceeding toward 102nd Avenue, he noticed Ms.

Alexander coming into the intersection and that her car started toslide. He could not say for sure whether he saw a turn signal on her car, but he said that this left turn by Ms. Alexander was unexpectedand that it occurred just before the crosswalk as he was entering the intersection. He estimated that he was only a car or one-and-a-half

car lengths away when she started to turn into the intersection. Mr. Andrusko said that he applied the brakes, but they locked up and hehit her vehicle on the back of the passenger side. [53] There is a significant divergence in the parties’ evidence about how the accident happened, and in particular, what othervehicles or pedestrians were involved. [54] Ms. Alexander is 55 years old and lives in Fort St. John with Mr. Hickman. She has lived there for 23 years and she is veryfamiliar with the intersection. She says that she was returning home from the bank. She confirmed Mr.

Andrusko’s evidence about theweather, in that it was overcast and the roads were snow-covered and icy underneath. [55] Ms. Alexander’s evidence is that she turned right onto 100th Street at 106th Avenue, pulling into the right lane (beside the curb) and proceeding south down the street. At about ¾ of a block before 102nd Avenue, she moved into the left lane so that she could turn left onto 102nd Avenue. At about the same time, she put her left turn signal on. She says that she was travelling behind an SUV, whicheventually slowed and stopped just into the intersection. She stopped behind the SUV.

From there she says that she observed a vehiclestopped in the northbound curb lane. She also says that she saw a woman stopped and standing on the far corner near to where the northbound vehicle was stopped. She waited to turn onto 102nd Avenue. She says that she looked around the SUV and did not seeanything coming. In her words, she said that she had room to move around the SUV, so she proceeded to turn left. As she pulled out, shesaw Mr. Andrusko’s vehicle coming toward the intersection. She tried to get out of his way; as she put it, she “stepped on” the gas toaccelerate her vehicle out of the way.

She estimates that she was in the middle of the intersection when the collision occurred. [56] Mr. Andrusko says that there was no SUV in the southbound lane, as Ms. Alexander suggests, or any pedestrian standing on thestreet corner. Further, he does not recall any vehicle alongside his vehicle going northbound. [57] After the collision, Mr. Andrusko got out of his vehicle and ran over to see if Ms. Alexander was all right. He said that she wasgetting hysterical and that she insinuated that he was speeding and to blame for the accident. Mr.

Andrusko said that he replied that shehad made an illegal turn in front of him. Ms. Alexander says that Mr. Andrusko said that he was sorry and that he was going too fast,which he denies. She denies that she said anything to him. [58] Ms. Alexander also says that right after the accident, a woman came up to her and said something to the effect, “if you need awitness, you can call me”. She says that this woman gave her a business card. On cross-examination, Ms. Alexander said that thiswoman was the driver of the vehicle stopped just before the intersection in the northbound lane of travel.

She put the card in her pocket.Ms. Alexander does not recall or did not relate the specifics of this conversation later in her conversation with Constable Grainger of theRCMP, but she does say that she gave him the business card and that he later returned it to her. She then put it back in her coat pocket.She has no idea what happened to that business card. She never looked at it, so she has no idea what it said. [59] Ms. Alexander’s husband picked her up, as her car was not driveable.

She was stiff and sore the next day with some bruising,although she did not seek any medical treatment. [60] Constable Grainger attended at the scene shortly after the accident. He interviewed both Mr. Andrusko and Ms. Alexander. It isnotable that the Constable’s records, including the near contemporaneous notes taken just after the accident and the interviews, confirm what Ms. Alexander told him about the accident. He says that Ms. Alexander informed him that she was making a left turn onto 102nd Avenue when she was struck by Mr. Andrusko’s vehicle. She made no mention of Mr.

Andrusko allegedly speeding into theintersection. Nor did she mention anything about a pedestrian stopped on the corner or any other vehicles stopped at the intersection atthe time. Finally, the Constable had no recollection or note of Ms. Alexander having given him a business card of a witness. HisOccurrence Report, which was provided to the parties, indicates that no witnesses were “carded”.

He indicates that if he had been soinformed, that person or witness would have been contacted. [61] Constable Grainger filled in his report while in his police cruiser immediately after he had interviewed the parties and clearedthe scene. While he indicated during cross-examination that it is possible that he misplaced this business card, I believe it is unlikely.The Constable was the most objective and calm person on the scene and clearly would have recognized the need to identify a witness tothe accident as an important detail of his investigation, particularly if Ms.

Alexander had made a point of giving this card to him.Ms. Alexander was in shock and by her own admission, not thinking straight. [62] I find that Ms. Alexander’s evidence concerning this card is confusing and suspect. I find as a fact that even if Ms. Alexanderhad received a card from someone at the scene, she did not give it to Constable Grainger. [63] Constable Grainger indicated that if he can form an opinion of fault arising from his investigation at the accident, he would doso. His report indicates that “Alexander failed to yield the right of way to Andrusko in this collision”.

The Law [64] The Motor Vehicle Act, R.S.B.C. 1996, c. 318 addresses the rules of the road while making left hand turns: Yielding right of way on left turn 174 When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approachingfrom the opposite direction that is in the intersection or so close as to constitute an immediate hazard, but having yielded and given asignal as required by sections 171 and 172, the driver may turn the vehicle to the left, and traffic approaching the intersection from theopposite direction must yield the right of way to the vehicle making the left turn. [65] The leading decision on assigning liability arising from a collision where a vehicle is exercising a right of way and the othervehicle does not yield is found in Walker v.

Brownlee, (SCC), [1952] 2 D.L.R. 450 at 461 (S.C.C.). There, Cartwright J.

stated: While the decision of every motor vehicle collision case must depend on its particular facts, I am of opinion that when A, the driver inthe servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way and acollision results, if he seeks to cast any portion of the blame upon B, the driver having the right-of-way, A must establish that after Bbecame aware, or by the exercise of reasonable care should have become aware, of A’s disregard of the law B had in fact a sufficientopportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and I do not think that insuch circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali. [66] The test from Walker was followed in Pacheco (Guardian ad litem of) v.

Robinson (1993), (BC CA), 75B.C.L.R. (2d) 273 (C.A.). In that case, a plaintiff cyclist had entered the intersection and then the defendant commenced a left-hand turnwith her vehicle. The trial judge found that the defendant had failed to yield the right of way and that the plaintiff cyclist was “obviouslyand clearly so close so as to constitute an immediate hazard”. The Court of Appeal overturned the trial judge’s finding that the cyclistwas contributorily negligent.

The Court, adopting the comments in Walker above, stated: [10] ...A defendant who wishes to make a left hand turn in an intersection has an obligation to yield to oncoming traffic which is inthe intersection under the provision of s. 176 of the Motor Vehicle Act. [11] The plaintiff was not bound to guard against every conceivable eventuality but only against such eventualities as a reasonableperson ought to have foreseen as being within the ordinary range of human experience.

The plaintiff was entitled to proceed on theassumption that all other vehicles will do what it is their duty to do, namely observe the rules regulating traffic.... [15] In my opinion, a driver who wishes to make a left hand turn at an intersection has an obligation not to proceed unless it can bedone safely. Where each party’s vision of the other is blocked by traffic, the dominant driver who is proceeding through the intersectionis generally entitled to continue and the servient left-turning driver must yield the right of way.

The existence of a left-turning vehicledoes not raise a presumption that something unexpected might happen and cast a duty on the dominant driver to take extra care.

Wherethe defendant, as here, has totally failed to determine whether a turn can be made safely, the defendant should be held 100 percent atfault for a collision which occurs. ... [18] In my opinion, when a driver in a servient position disregards his statutory duty to yield the right of way and a collision results,then to fix any blame on the dominant driver, the servient driver must establish that after the dominant driver became aware, or by theexercise of reasonable care should have become aware, of the servient driver’s own disregard of the law, the dominant driver had asufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself.

In suchcircumstance any doubt should be resolved in favour of the dominant driver. … [67] The principles from the above cases were recently affirmed in Nerval v. Kehra, 2012 BCCA 436.

Harris J.A. found that theanalysis begins with determining whether the left-turning driver has satisfied the onus of proving that the oncoming vehicle was not an“immediate hazard”: [33] The principles laid down in Pacheco lead to the conclusion that the starting point of the analysis is that when a left turning driveris assessing making a left turn in an intersection he or she must yield the right of way to oncoming traffic unless it is not an immediatehazard.

Describing a driver as dominant means no more than that driver has the right of way, whereas the servient driver has theobligation to yield the right of way. The obligation imposed by s. 174 on the left turning vehicle is that it “must yield the right of way totraffic approaching from the opposite direction that is in the intersection or so close as to constitute an immediate hazard”. A left turnmust not be commenced unless it is clearly safe to do so.

If there are no vehicles in the intersection or sufficiently close to be animminent hazard, the driver may turn left and approaching traffic must yield the right of way. In other words, if a left turning drivercomplies with his or her obligation only to start the left turn when no other vehicles are in the intersection or constitute an immediatehazard, then the left turning driver assumes the relationship of being the dominant vehicle and approaching vehicles become servient andmust yield the right of way. [34] As observed in Salaam v.

Abramovic, 2010 BCCA 212 at para. 33, the words “immediate hazard” are “used to determine when avehicle may lawfully enter an intersection. They determine who is the dominant driver, but do not, by themselves, define the standard ofcare in a negligence action.” [35] The effect of s. 174 is to cast the burden of proving the absence of an immediate hazard at the moment the left turn begins ontothe left turning driver. This result flows inevitably from the wording of the

section itself, given the nature of the absolute obligation thesection creates. If a left turning driver, in the face of this statutory obligation, asserts that he or she started to turn left when it was safe todo so, then the burden of proving that fact rests with them. [Emphasis added.] [68] The evidence clearly indicates that Mr. Andrusko’s vehicle was an immediate hazard when Ms. Alexander began her left-handturn. As the court notes in Nerval at para. 43, this determination is largely a function of speed and distance from the intersection.Mr. Andrusko’s evidence was that Ms.

Alexander turned unexpectedly in front of him and that she was only a short distance away whenshe began her turn. [69] Ms. Alexander does not seriously suggest otherwise and concedes, at least in part, that she was to blame for the accident. Shedid not see Mr. Andrusko’s car until she began her turn and it was too late by that time to stop and avoid the collision. On cross-examination, Ms. Alexander said that she was stopped behind the SUV and had room to move around it and attempt the left turn. Onlywhen she was in the intersection making the turn did she first observe Mr. Andrusko.

She said, “I was turning and there he was”. Sheacknowledged that if she had seen Mr. Andrusko, she would not have turned at all.

[ 70 ] I find as a fact that Ms. Alexander did not have a clear view of Mr. Andrusko’s oncoming vehicle before she began to make the left-hand turn. I further find that while commencing her turn, Mr. Andrusko’s vehicle constituted an “immediate hazard” in that Ms. Alexander could not complete that left-hand turn without risking a collision. As such, Ms. Alexander has not met the onus of showing that it was safe to complete the left-hand turn in these circumstances. Contributory Negligence [ 71 ] Despite conceding some fault for the accident, Ms. Alexander asserts that Mr.

Andrusko was also to blame for the collision and was therefore contributorily negligent. [ 72 ] As discussed in Nerval , this type of analysis follows after application of the “immediate hazard” test as the second aspect of determining fault for the collision: [37] The second aspect of the burden relates to proving that despite being the dominant driver, Ms. Khehra nonetheless was negligent and at fault for causing or contributing to the accident. Here, although Ms. Khehra had the right of way, she could exercise that right only in a safe manner.

The trial judge correctly relied on the statement of principle from para. 18 of Pacheco, quoted above, in assessing the evidence and reaching his conclusions. [38] Whether a through driver is dominant turns on whether the driver’s vehicle is an immediate hazard at the material time, not why it is an immediate hazard. Dominance identifies who must yield the right of way. One consequence of this analysis is that negligence on the part of a through driver does not disqualify that driver as the dominant driver. The through driver remains dominant, even though their conduct may be negligent.

Indeed, the through driver’s fault may be greater than the servient driver’s fault. In other words, a through driver may be an immediate hazard even though that driver is speeding and given her speed would have to take sudden action to avoid the threat of a collision if the left turning driver did not yield the right of way.

The correct analysis is to recognize that the through driver is breaching his or her common law and perhaps statutory obligations and to address the issue as one of apportioning fault, not to reclassify the through driver as servient based on the degree to which the through driver is in breach of her obligations . [Emphasis added.] [ 73 ] In accordance with s. 4 of the Negligence Act , R.S.B.C. 1996, c. 333, when a plaintiff contributes negligently to causing his or her own injury, the court must determine relative degrees of fault.

The correct inquiry is whether the plaintiff failed to take reasonable care for his or her own safety, and whether that failure was one of the causes of the accident: Bradley v. Bath , 2010 BCCA 10 at para. 27 . [ 74 ] Fault or blameworthiness evaluates the parties’ conduct in the circumstances, and the extent or degree to which it may be said to depart from the standard of reasonable care: Alberta Wheat Pool v. Northwest Pile , 2000 BCCA 505 at paras. 45-46 . [ 75 ] Ms. Alexander asserts that Mr.

Andrusko failed in respect of various statutory duties such that he contributed to the accident. [ 76 ] Firstly, it is alleged that Mr. Andrusko breached s. 144 of the Motor Vehicle Act by speeding and driving without due care and attention: Careless driving prohibited 144

(1) A person must not drive a motor vehicle on a highway (

a) without due care and attention, (

b) without reasonable consideration for other persons using the highway, or (

c) at a speed that is excessive relative to the road, traffic, visibility or weather conditions. [ 77 ] Specifically, it is alleged that Mr. Andrusko was going too fast for the winter road conditions he faced. However, I accept the evidence of Mr. Andrusko and find as a fact that he was not speeding. He was starting from a dead stop at the previous intersection. There was also no evidentiary basis upon which to assert that Mr. Andrusko was driving without due care and attention. I find that he was aware that Ms.

Alexander’s vehicle was in the oncoming lane, but he was surprised when she turned in front of him unexpectedly. [ 78 ] It is also alleged that Mr. Andrusko acted negligently in not stopping or slowing at the intersection given that other vehicles and pedestrians were in and around the intersection at the time. Ms. Alexander contends that Mr. Andrusko breached his statutory obligations arising under ss. 159 and 179 of the Motor Vehicle Act : Passing on left 159 A driver of a vehicle must not drive to the left side of the roadway in overtaking and passing another vehicle unless the driver can do so in safety. ...

Rights of way between vehicle and pedestrian 179

(1) Subject to

section 180, the driver of a vehicle must yield the right of way to a pedestrian where traffic control signals are not in place or not in operation when the pedestrian is crossing the highway in a crosswalk and the pedestrian is on the half of the highway on which the vehicle is travelling, or is approaching so closely from the other half of the highway that he or she is in danger.

...

(3) If a vehicle is slowing down or stopped at a crosswalk or at an intersection to permit a pedestrian to cross the highway, the driver of a vehicle approaching from the rear must not overtake and pass the vehicle that is slowing down or stopped. [ 79 ] This argument is largely based on Ms. Alexander’s evidence, as above, that during her left-hand turn, there were two other vehicles ‒ the SUV in front of her and a northbound vehicle stopped at the corner. In addition, she says that she saw a pedestrian standing on the corner of the intersection near to the stopped northbound vehicle. [ 80 ] Mr.

Andrusko had an entirely different recollection as to what was occurring in the intersection. He does not recall seeing any other vehicles, including both the SUV and the vehicle that Ms. Alexander says was stopped at the northbound corner in the right lane. Finally, he does not recall seeing any pedestrian on the corner. [ 81 ] Overall, in my view, Mr. Andrusko’s evidence on these issues is more consistent with the probabilities affecting this case. Mr. Andrusko gave his evidence in a fair and straightforward manner and I consider that he was a credible witness.

He appropriately conceded where his recollection was not clear. Overall, however, his evidence was consistent and clear. Accordingly, I found Mr. Andrusko to be a reliable witness of the events leading up to the accident. [ 82 ] In contrast, Ms. Alexander’s evidence presented some difficulties relating to both before and after the accident. While I appreciate that she was doing her best to recall accurately, I consider that she failed in many material respects. [ 83 ] Ms. Alexander was clearly in some distress after the accident, indicating that she was numb and shaky.

She further acknowledged that she was in shock after the accident and not thinking straight. She was very unclear on many details about the accident, including the order in which the events occurred. For example, she stated many times that she “believed” certain events had occurred. When asked about her conversations with the paramedics and police, she said it was “hard to remember”. [ 84 ] Consistent with my conclusions on the reliability of Mr. Andrusko’s evidence, I find that he did not admit to Ms. Alexander that he was speeding.

While he says that he may have apologized for the accident in a general sense, I find that he did not acknowledge fault for the accident. [ 85 ] Ms. Alexander’s story about the pedestrian and the driver of the stopped northbound car is also suspect. In her direct examination, she only said that some woman came up to her and gave her a business card. Only during cross-examination did the further detail emerge that this “witness” was, in fact, the driver of the stopped car. She then described this woman as 45 years old with short sandy hair. Given that Ms.

Alexander had little, if any, recollection of speaking to Constable Grainger, however, I consider that her recollection of these further details is not accurate. [ 86 ] Given Ms. Alexander’s apparent views about who was at fault for the accident at the time, obtaining a contact number for a witness would have been an important matter for her. Despite that, no business card, if one was obtained by her, materialized at the time. Even if there was a business card from a witness, I accept Constable Grainger’s evidence that she did not give any business card to him. While one might excuse Ms.

Alexander, since she was in shock at the time, she did not produce it even at a later time. [ 87 ] Ms. Alexander also suggested in argument that Mr. Andrusko should have stopped for the pedestrian standing on the street corner waiting to cross 100 th Street. During her direct testimony, however, this did not emerge as part of her explanation for turning left or even for her thought process in thinking that she could turn safely because Mr. Andrusko would stop for that pedestrian. As stated above, she did not even see Mr.

Andrusko until she had commenced her turn. [ 88 ] This story about the pedestrian being ready to cross the street only came out in cross-examination and only when Ms. Alexander was asked questions about what she had told her husband in the car on the way home after the accident. [ 89 ] These various other factors ‒ such as the SUV, the stopped northbound vehicle and the pedestrian ‒ now raised by Ms. Alexander are also noticeably missing from any later reporting on the accident and the cause of the accident by Ms.

Alexander. [ 90 ] As noted above, Constable Grainger had no note of being told about any of these matters by Ms. Alexander. Further, in the ICBC claim report filed by Ms. Alexander on January 3, 2008, the same day as the accident, the adjuster noted Ms. Alexander’s description of the accident. There is no mention of any other cars, including the SUV and the stopped northbound vehicle, or of a pedestrian. Nor is there any recorded note that, as she now claims, she had assumed that Mr. Andrusko would stop to allow the pedestrian to cross the street.

Lastly, she did not mention to ICBC the business card of the witness that she says she obtained. While I accept that these ICBC notes are not necessarily accurate in terms of what Ms. Alexander actually reported, Ms. Alexander has little recollection of what she did say. She does acknowledge, however, that she did not relay these further facts to the ICBC adjuster. Her explanation that she was unaware that she had to tell them everything is difficult to understand since she would have known that ICBC would attempt to determine fault for the accident. [ 91 ] Lastly, the evidence does not support Ms.

Alexander’s description of the crosswalk and the pedestrian waiting to cross. There was no evidence at the trial about there being a crosswalk traversing 100 th Street at the intersection in question. Further, even accepting that there was a pedestrian on the corner, there is no evidence that this pedestrian was trying to cross 100 th Street at a crosswalk or otherwise. Ms. Alexander says that the person was just standing on the corner and had not made any movement to step into the street. This person might have been waiting to cross 102 nd Avenue.

Or, assuming that the stopped northbound vehicle was there, the pedestrian might have been talking to the driver of that vehicle. Lastly, if this person really was waiting to cross 100 th Street, with the inside northbound vehicle already stopped, it is reasonable to assume that this pedestrian would have at least begun to venture into the street. Even on Ms. Alexander’s evidence, this person did not do so. [ 92 ] I conclude that Ms. Alexander’s evidence on these other matters at the intersection is not reliable. I find as a fact that, contrary to Ms.

Alexander’s evidence, there was no stopped northbound car in the right lane. Nor was there any pedestrian stopped on the corner

waiting to cross 100th Street, whether in a crosswalk or otherwise. [93] I accept Ms. Alexander’s evidence concerning the SUV proceeding in front of her southbound on 100th Street, but I find that the SUV was not stopped in the intersection. I consider it more likely that, at some point while she was proceeding down 100th Street, theSUV would have impeded her view of the oncoming vehicles, including that of Mr. Andrusko. However, I find that as or just after shewas commencing her left turn, the SUV was not blocking her view and she turned or continued to turn anyway.

In any event, thepresence of the SUV proceeding southbound through the intersection just before Ms. Alexander turned was not a matter that would haveput Mr. Andrusko on notice of anything untoward at the intersection that should have caused him to slow down or stop. His continuingthrough the intersection in these circumstances did not violate any statutory requirement under the Motor Vehicle Act. [94] In light of these findings, Ms. Alexander has failed to satisfy the onus upon her to establish contributory negligence onMr.

Andrusko’s part, since there is no evidentiary basis for any arguments under ss. 144, 159 and 179 of the Motor Vehicle Act inrelation to Mr. Andrusko’s actions. In short, he did not act carelessly, there was no vehicle to pass on the left and there was no pedestrian attempting to cross 100th Street, whether in a crosswalk or otherwise. In addition, the SUV did not pose any issue. As such,Mr. Andrusko was entitled to proceed on the assumption that Ms. Alexander would obey the rules of the road: Pacheco at paras. 11, 15;Nerval at para. 29. She did not do so. Accordingly, I find Ms.

Alexander solely responsible for the collision. Causation [95] The plaintiff must establish on a balance of probabilities that the defendant’s negligence caused or materially contributed to aninjury. The defendant’s negligence need not be the sole cause of the injury so long as it is part of the cause beyond the de minimisrange. Causation need not be determined by scientific precision: Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458 atparas. 13-17. [96] The primary test for causation asks: but for the defendant’s negligence, would the plaintiff have suffered the injury?

The “butfor” test recognizes that an award of compensation for negligent conduct should be made only where a substantial connection betweenthe injury and the defendant’s conduct is present: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-23. Causation must be establishedon a balance of probabilities before damages are assessed. As McLachlin C.J.C. stated in Blackwater v. Plint, 2005 SCC 58 at para. 78: [78] It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort.

The rules ofcausation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance ofprobabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of theplaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of theplaintiff would have been.

The governing principle is that the defendant need not put the plaintiff in a better position than his originalposition and should not compensate the plaintiff for any damages he would have suffered anyway: Athey. Mr. Barney’s submissions thatinjury from traumas other than the sexual assault should not be excluded amount to the contention that once a tortious act has been foundto be a material cause of injury, the defendant becomes liable for all damages complained of after, whether or not the defendant wasresponsible for those damages. [97] Mr. Andrusko called Dr.

James Filbey, who was qualified as a medical doctor with a speciality in physical medicine andrehabilitation and electrodiagnostic medicine. His speciality is more commonly referred to as “physiatry”. Dr. Filbey examinedMr. Andrusko and prepared a report on March 9, 2011. He also prepared supplemental reports dated May 13 and November 23, 2011. [98] As will be discussed in more detail below, Dr. Filbey concluded that Mr. Andrusko had a pre-existing pars interarticularisdefect, which is a situation where a bony ring in the vertebrae fails to turn into bone and remains a fibrous tissue.

This was asymptomaticbefore the accident. Dr. Filbey concluded that Mr. Andrusko suffered soft tissue injuries which resulted in neck, shoulder and low backpain and that the low back injuries caused the pars defect to become symptomatic and contribute to the pain. Dr. Filbey concluded that itwas his opinion that “Mr. Andrusko’s current and ongoing symptoms are a direct result of the MVA”. [99] At the request of the defence, Mr. Andrusko was seen by Dr. Paul Bishop for an independent medical examination in November2011. Dr. Bishop is a medical doctor.

Although he does not have any recognized speciality from the Royal College of Physicians andSurgeons, as Dr. Filbey has in physiatry, Dr. Bishop has extensive experience in his clinical practice relating to the spine and is involvedin teaching and research relating to the spine. He was qualified at the trial as having an expertise in non-operative pathology and diseasesof the spine. He provided his report dated November 8, 2011 and supplemental report dated May 23, 2012. [100] Dr. Bishop similarly diagnosed Mr. Andrusko as having mechanical lower back and neck pain.

On cross-examination, heacknowledged that these injuries were caused by the accident. [101] On the basis of the medical opinions above, which I accept, particularly that of Dr. Filbey, I conclude that Mr. Andrusko hasestablished on a balance of probabilities that his injuries, as will be described below, were caused by the accident. Damages [102] Mr. Andrusko’s position at trial was that he sustained injuries to his neck, shoulder and low back, and that he has continuousnumbness radiating in his left leg.

He said that the neck and left shoulder pain improved over the first year or so, but that this pain is nowintermittent and occurs about twice per week. Mr. Andrusko’s major complaint is that since the accident, he has suffered a continuouslow back injury, which is now chronic. This low back injury is to be considered in conjunction with the previously asymptomatic parsinterarticularis defect at L5 (which is also called spondylolysis). [103] Ms. Alexander’s position is that the neck and shoulder injuries were resolved in one year. Further, Ms. Alexander takes the

position that Mr. Andrusko’s low back pain arose from mild to moderate soft tissue injuries that were resolved by late 2011.

Summary of Lay Witness Evidence [ 104 ] The medical clinical records confirm complaints of pain and numbness in the left leg arising immediately following the accident and complaints of ongoing pain in the lower back continuing to at least October 2009, over a year and a half after the accident: January 4, 2008 - Dr. Brussow … has muscle pains - Meds given; O/e stiff neck ... muscular. … January 17, 2008 - Dr. Brussow - Pt was in MVC and has back pain .. lumber [ sic ] area and sciatica into his [left] leg … Meds did help but he went to chiropractor and that helped somewhat. … … March 26, 2008 - Dr.

Van Zyl - still with some pain in neck and lower back after recent accident ... O: … some tenderness over trapezius; A: myalgia (post traumatic); P: ... meds April 23, 2008 - Dr. Van Zyl - still seeing chiropractor, reports pain in lower back, seems like the muscle relaxants worked for the neck spasms at least; O: multiple triggerpoints in lower back; A: post traumatic backpain; P: reassured. advice given on stretches, sleep habits etc. June 12, 2008 - Dr.

Van Zyl - still co lower back pain, says that chiropractor visits not helping, is there an alternative? suggests massage therapy; A: post MVA, mechanical backpain. October 20, 2008 - Dr. Van Zyl - still with pain after accident requests nalgesia; succeeded in all conservative measures; A: myalgia; P: reassured, see meds. … October 19, 2009 - Dr. Van Zyl - doing well, still with ongoing backpain after accident last year. no other problems; A: ongoing mechanical backpain; P: refill of meds [ 105 ] Dr.

Van Zyl moved back to South Africa about two years ago and did not testify as to his records. [ 106 ] I have already indicated that Mr. Andrusko undertook treatments with a chiropractor for about one year after the accident. He then began visits with a physiotherapist in January 2009, a treatment which he found was more helpful. As to the ongoing nature of his symptoms at that time, the physiotherapy records disclose a note on January 30, 2009 that his neck and shoulders were stiff. Mr.

Andrusko says that this is consistent with the neck and shoulder pain which was continuing, albeit on an intermittent basis, at that time. [ 107 ] During cross-examination, Mr. Andrusko did say that by April 2008, his neck, shoulder and back were not affecting him as much. Mr. Andrusko also agreed during cross-examination that by January 2010, he was only experiencing lower back problems, although he contended that there continued to be intermittent neck and shoulder problems. [ 108 ] Mr. Andrusko gave evidence as to the history of his medical complaints arising from the accident in a straightforward manner.

I have related some of that history above. Importantly, however, he relates that his improvement has plateaued. He says that at this time, his low back pain and leg numbness remain a fairly constant companion and the neck and shoulder pain arise intermittently. Further, at times, his low back pain is severe depending on his activities at work. He has attempted to address his pain and numbness through exercise and, most recently, physiotherapy. [ 109 ] His complaints are corroborated by the evidence of his fiancé, Ms. Stroud. Moreover, somewhat more independent evidence was given by Mr.

Higgins, his friend and former co-worker at DGS, concerning ongoing back pain. Mr. Higgins was aware of Mr. Andrusko’s low back problems. At times, Mr. Andrusko would mention having problems and that he was taking a break. Mr. Higgins also confirmed that Mr. Andrusko had complaints only a month before Mr. Higgins gave testimony. Mr. Higgins did not consider that Mr. Andrusko was a “complainer”. Finally, the most independent evidence came from Mr. Stanway, his boss at Joy Propane, who also confirmed that Mr. Andrusko was put on lighter duties after the accident. While Mr.

Andrusko did not call his current supervisor to give evidence at trial, this is understandable since he does not want to advertise his low back difficulties to his current employer. [ 110 ] The defence’s submissions as to the extent of Mr. Andrusko’s injuries are principally directed toward the limited health care that Mr.

Andrusko obtained after the accident and the fact that he continued to work the same type of job after the accident. [ 111 ] The defence points to the fact that he did not obtain medical treatment at the scene, but that can be balanced against the fact that he sought medical treatment the day after the accident. The defence also points to the 15 chiropractic treatments in 2008, followed by the 11 physiotherapy sessions in 2009. It is true that treatments continued to taper off after that time, with 10 physiotherapy sessions from the beginning of 2010 until November 2012. However, Mr.

Andrusko provided evidence that he had difficulty taking time off while working at DGS beginning in early 2010. That would explain the fewer attendances. In addition, during the off-season from working at DGS, there would obviously be less physical strain on his body that would typically give rise to the need for such treatments. Consistent with the DGS working season, he had two attendances at the Fort St. John Medical Clinic relating to the accident injuries in each of 2010 and 2011, early and late in the calendar year.

His only attendance in 2012 was also in May. [ 112 ] The fact that he takes little medication also does not indicate a lack of ongoing injury. He takes medication only occasionally

because he is concerned about being less than alert at work. [113] The defence also suggests that the medical records do not support Mr. Andrusko’s ongoing complaints of pain. Yet a review ofthe records shows ongoing complaints of back pain into 2012. This is less so in relation to the intermittent neck and shoulder pain. Thisargument raises the same issues as were addressed in Edmondson v.

Payer, 2011 BCSC 118 at paras. 30-39, aff’d with caveat 2012BCCA 114 at paras. 29-30, concerning whether medical records really do constitute a true record of what a patient might beexperiencing ‒ or not experiencing ‒ at the time. Mr. Andrusko specifically stated that while the records may indicate only back pain, hedid not tell the doctor about all of his complaints of pain at every visit. Rather, he likely mentioned only what was bothering him themost. In that regard, the back pain was always his major complaint. I accept his evidence of the extent of his injuries, as I considerMr.

Andrusko to be a stoic individual. As confirmed by Ms. Stroud and Mr. Higgins, he is not, to put it less elegantly, a complainer. Hecandidly said that he just pushed through the pain for the most part. [114] Mr. Andrusko also has a particularly brusque manner of speaking. In my view, this negatively affects how he relates hissymptoms. This may have contributed to what Mr.

Andrusko communicated, or did not communicate, to his health care providers.Accordingly, I do not accept that these clinical records confirm that the soft tissue injuries relating to his neck and shoulder wereresolved quickly over some four months, as contended by Ms. Alexander. Nor do I consider that they support the argument that his lowback pain and numbness has resolved. [115] Finally, the defence argues that Mr. Andrusko’s work record indicates that he has recovered. It points to the fact thatMr.

Andrusko finally returned to normal duties at Joy Propane and later obtained very physical jobs at H2Oasis and DGS. [116] Mr. Andrusko is a poor communicator. I have taken that into account in considering his evidence. Whether that comes from hislimited education is unclear and likely irrelevant. Derek Nordin, the vocational evaluator who gave evidence at trial, stated that, in hisview, Mr. Andrusko was a poor historian and had difficulty relating his history to him. Like Mr. Nordin, however, I consider that he wasdoing his best in terms of giving an honest account of his injuries since the accident. Again, Mr.

Andrusko is a stoic person. Hecontinued working with pain because he simply had no choice. That he continued working does not mean that he was free of pain indoing so. Expert Testimony [117] Dr. Filbey’s report of March 9, 2011 outlined Mr. Andrusko’s complaints as outlined above, namely that his neck pain isintermittent and that when he does get a stiff neck it is a sharp and instantaneous pain when he turns right or left. His report records thatthis occurs once or twice every few months.

There was also a report of shoulder pain which was said to happen more frequently than theneck pain and which results in a dull burning pain. This was located in the trapezius and back shoulder region. Mr. Andrusko reportedthat this was occurring once per week and would occur with long stationary postures. With respect to the low back, Mr. Andruskoreported that this dull pain is present all the time and that he also gets sharp pains that he describes as “unbearable”. These sharp painsare followed by numbness in his left leg. [118] As stated above, Dr. Filbey gave his opinion that Mr.

Andrusko has low back pain and cervicothoracic pain and that heunfortunately is in the small category of people who have chronic pain. [119] The defence raised the argument that Dr. Filbey’s reports were inconsistent with respect to the pars defect that was found on theright side. In his first report, he indicated that the pain was bilateral, meaning that it is on both sides. In his later report, he indicated thatthe pain was localized to the right side as a result of biomechanical alterations arising from the pars defect. Ms. Alexander argues thatDr.

Filbey was backtracking in terms of his explanation for the pain. I do not agree. I take from Dr. Filbey’s report that the pain wasfound in a general area. The fact that it was found more on the right does not change the overall finding. I note that Dr. Bishop founddiscomfort on the left side. It seems clear that locating and noting pain is not an exact science. [120] The contrary opinion of Dr. Bishop principally centered on his proposition that he could detect no objective findings ofabnormality that would explain the ongoing symptoms alleged by Mr. Andrusko.

Nor did he find any evidence that the pars defect wasplaying any role in Mr. Andrusko’s low back pain. On that basis, he concluded that it would be reasonable for Mr. Andrusko to suffer anacute phase after the accident of 12 to 16 weeks. Dr. Bishop acknowledged that during this period of recovery Mr. Andrusko was likelyto experience an increase in the intensity of his pain symptoms, but that was normal. After that time, he was unable to relate any ofMr. Andrusko’s ongoing spine-related symptoms directly to the trauma arising from the accident. At the time of his report in November2011, Dr.

Bishop considered that Mr. Andrusko’s prognosis for a full recovery to his pre-accident level was “good”. [121] Nevertheless, on cross-examination, Dr. Bishop agreed that pain is often unable to be related to any other objective criteria. Heagreed that many patients have pain and doctors cannot determine what is wrong with them. He agreed that pain can be very disabling.In his practice, if the disability, as self-reported by the patient, exceeds the impairment and is ruled out on a purely objective basis, hewould normally look for other factors that might be contributing to the ongoing pain. He indicated that Mr.

Andrusko had one of these,but he did not identify that risk factor. In any event, he indicated that further testing should be done on Mr. Andrusko to determinewhether there is anything else contributing to the matter. [122] Dr. Bishop confirmed that in a small proportion of people who experience pain, 5% of them will continue to suffer with chronicpain. In that situation, the medical profession typically turns to consider pain management techniques. [123] There is obviously a need in this case to carefully consider Mr.

Andrusko’s subjective evidence as to the extent of his injuries.That and the conflict in the medical evidence concerning objective evidence of impairment invites a consideration of the oft-quotedcomments of the court regarding subjective reports of pain. The correct and cautious approach to assessing injuries which depend onsubjective reports of pain was discussed in Price v. Kostryba (1982), (BC SC), 70 B.C.L.R. 397 at 399 (S.C.) byMcEachern C.J. In referring to an earlier decision, he said: In Butler v. Blaylock, decided 7th October 1981, Vancouver No.

B781505 (unreported), I referred to counsel’s argument that a defendant

is often at the mercy of a plaintiff in actions for damages for personal injuries because complaints of pain cannot easily be disproved. I then said: I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery. An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer.

But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence - which could be just his own evidence if the surrounding circumstances are consistent - that his complaints of pain are true reflections of a continuing injury.

Summary of the Injuries Caused by the Accident [ 124 ] As I have indicated above, I consider Mr. Andrusko to have been a credible witness. I found that he attempted to give his evidence in terms of his injuries in an honest and forthright manner. As stated above, Mr. Andrusko is not a very good communicator and I have taken that into account in considering his evidence. I also consider that he is a stoic individual who does not want others to think of him as a “complainer”. [ 125 ] The extent of his injuries was confirmed by the evidence of Ms.

Stroud, who I also found to be a credible witness. [ 126 ] Moreover, Mr. Andrusko’s evidence is supported by the clinical records of the Fort St. John Medical Clinic. While I appreciate that the clinical notes do not record every single complaint made by Mr. Andrusko on a particular day, they generally reflect his ongoing complaints and the treatment of those complaints over the period of time of those records. The physiotherapy and chiropractic reports also provide independent confirmation of Mr. Andrusko’s complaints over this period of time. [ 127 ] The independent evidence of Mr. Stanway and Mr.

Higgins further confirms Mr. Andrusko’s complaints about his low back, shoulder and neck pain in the workplace. [ 128 ] Finally, I have considered Dr. Bishop’s concerns about the lack of objective evidence of Mr. Andrusko’s pain. For the most part, Dr. Bishop’s rejection of physical examination techniques was based on research examining the reliability of various procedures to determine tenderness, such as palpation. In light of this, I have approached that matter with some caution. [ 129 ] I am particularly persuaded by Dr.

Filbey’s evidence concerning the difficulty that he himself acknowledged was present when confirming pain in similar situations. Dr. Filbey said that with respect to musculoskeletal injuries such as that suffered by Mr. Andrusko, the fact that a diagnosis is largely based on a patient’s subjective complaints of pain is hardly unusual. Nevertheless, Dr. Filbey indicated that he takes steps to test the complaints of pain in an organized fashion that allows him to form some view as to whether the subjective complaints are justified. In this case, he expressed no hesitation in confirming his opinion that Mr.

Andrusko’s complaints are real. In addition, Dr. Filbey indicated that he relied not only on Mr. Andrusko’s complaints of pain but also on his own physical examination and review of all of the relevant records and medical tests. [ 130 ] Overall, I consider Dr. Filbey’s reports to be a more comprehensive consideration of the circumstances relating to Mr. Andrusko. To a large extent, Dr. Bishop seems to have relied upon various research results which addressed certain issues within a large population base. As Dr.

Filbey said, research is fine, but it must be balanced against the actual individual that is before you with a particular problem. In addition, I consider that Dr. Filbey was better qualified from a medical perspective to opine on Mr. Andrusko’s issues in this particular situation. Overall, I found Dr. Filbey’s reports to be consistent in terms of his findings of pain. Accordingly, where there is a difference of opinion as between the two doctors, I prefer and accept the evidence and opinion of Dr. Filbey. [ 131 ] On the basis of the lay witness evidence and the expert evidence of Dr.

Filbey, I find the following facts in relation to the determination of Mr. Andrusko’s injuries:

a) Mr. Andrusko suffered injuries to his neck and shoulder, which were largely resolved within one year. Pain from those areas continues to flare up from time to time, about once per week, at which time the pain is severe; and

b) Mr. Andrusko suffered injuries to his low back such that he has constant pain in that area, which is at times severe. In conjunction with this low back pain, Mr. Andrusko suffers from persistent numbness in his left leg on a regular basis. [ 132 ] I also find that further improvement of these injuries is unlikely. To use the medical term, Mr. Andrusko’s condition is now “chronic”. Quantum of Damages Non-Pecuniary Damages [ 133 ] Non-pecuniary damages are awarded to compensate the plaintiff for pain, suffering, loss of enjoyment of life, and loss of amenities.

The compensation awarded should be fair to all parties. Fairness is measured against awards made in comparable cases. However, such cases, though helpful, serve only as a rough guide. Each case depends on its own unique facts: Trites v. Penner , 2010 BCSC 882 at paras. 188-189 . [ 134 ] In Stapley v. Hejslet , 2006 BCCA 34 , the Court of Appeal outlined the factors to be considered when assessing non-pecuniary damages: [46] The inexhaustive list of common factors cited in Boyd [ v. Harris , 2004 BCCA 146 ] that influence an award of non-pecuniary

damages includes: (

a) age of the plaintiff; (

b) nature of the injury; (

c) severity and duration of pain; (

d) disability; (

e) emotional suffering; and (

f) loss or impairment of life; I would add the following factors, although they may arguably be subsumed in the above list: (

g) impairment of family, marital and social relationships; (

h) impairment of physical and mental abilities; (

i) loss of lifestyle; and (

j) the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163(QL), 2005 BCCA 54). [135] The assessment of non-pecuniary damages is necessarily influenced by the individual plaintiff’s personal experiences in dealingwith his injuries and their consequences, and the plaintiff’s ability to articulate that experience: Dilello v. Montgomery, 2005 BCCA 56 atpara. 25. [136] Mr. Andrusko cites Pett v. Pett, 2009 BCCA 232 and Miller v. Lawlor, 2012 BCSC 387 in support of an award of $85,000.

InPett, a young man who was a construction worker was injured and had suffered neck and shoulder injuries which resolved fairly quickly.His chronic lower back pain persisted and affected both his work and recreational activities. Non-pecuniary damages in the amount of$85,000 were awarded. In Miller, a young man suffered injuries giving rise to chronic pain, which affected his physical work andrecreational activities. The award was $65,000. [137] Counsel for Ms. Alexander agreed that if I rejected her submissions on the extent of Mr. Andrusko’s injuries, which I have, therange suggested by Mr.

Andrusko for non-pecuniary damages was appropriate. [138] I consider that the circumstances in Pett are the closest to those of Mr. Andrusko. Both cases involve young men who areinvolved in very physical jobs. Both are considered stoic in that they work through the pain. Like Mr. Pett, some of Mr. Andrusko’sinjuries have abated, but they remain intermittent to this time. They also generally return when Mr. Andrusko’s job activities exacerbatethat pain, something that happens fairly frequently. The low back pain and leg numbness is persistent and will be a condition thatMr.

Andrusko lives with for the rest of his life. [139] While most of the impact of Mr. Andrusko’s injuries is being experienced in his working life, it has also impacted his personallife, particularly his relationship with Ms. Stroud. Also, his ability to work at his DJ business has been affected in the sense that it isuncomfortable to sit for long periods of time without pain. [140] In addition, Dr. Filbey indicated in his report that Mr. Andrusko could continue to do his housekeeping and yard work on hisown, although in less than 20 years he would more than likely require assistance for heavy seasonal tasks.

These circumstances arefactors that may be considered in the assessment of non-pecuniary damages: McTavish v. MacGillivray, 2000 BCCA 164 at para. 73. [141] In Pett, the plaintiff’s injuries had a significant impact on his recreational activities. I do not consider that Mr. Andrusko’s non-work activities have been as negatively affected. [142] Taking all the circumstances into account, I award the sum of $80,000. Loss of Future Earning Capacity [143] One of the most controversial issues at the trial concerned Mr.

Andrusko’s prognosis and ability to earn income in the future. [144] A claim for loss of future earning capacity raises two key questions: 1) has the plaintiff’s earning capacity been impaired by hisor her injuries; and 2) if so, what compensation should be awarded for the resulting financial harm that will accrue over time? Theappropriate means of assessment will vary from case to case: Brown v. Golaiy (1985), (BC SC), 26 B.C.L.R. (3d) 353(S.C.); Pallos v.

Insurance Corporation of British Columbia (1995), (BC CA), 100 B.C.L.R. (2d) 260 (C.A.); Pett. [145] Insofar as it is possible, the plaintiff should be put in the position he or she would have been in but for the injuries caused by thedefendant’s negligence: Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185. The essential task of the court is to compare thelikely future of the plaintiff’s working life if the accident had not happened with the plaintiff’s likely future working life after theaccident: Gregory v.

Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 32. [146] The plaintiff must always prove that there is a real and substantial possibility of a future event leading to an income loss: Perrenv. Lalari, 2010 BCCA 140 at para. 32. If that burden is met, then there are two possible approaches to assessing the loss of futureearning capacity: the “earnings approach” from Pallos; and the “capital asset approach” in Brown. Both approaches are correct and will

be more or less appropriate depending on whether the loss in question can be quantified in a measureable way: Perren at para. 32. [147] The earnings approach involves a form of math-oriented methodology such as (

i) postulating a minimum annual income loss forthe plaintiff’s remaining years of work, multiplying the annual projected loss by the number of remaining years and calculating a presentvalue, or (ii) awarding the plaintiff’s entire annual income for a year or two: Pallos; Gilbert v. Bottle, 2011 BCSC 1389 at para. 233. [148] The capital asset approach involves considering factors such as whether the plaintiff: (

i) has been rendered less capable overallof earning income from all types of employment; (ii) is less marketable or attractive as a potential employee; (iii) has lost the ability totake advantage of all job opportunities that might otherwise have been open; and (iv) is less valuable to herself as a person capable ofearning income in a competitive labour market: Brown; Gilbert at para. 233. [149] The principles that apply in assessing loss of future earning capacity were summarized by Low J.A. in Reilly v. Lynn, 2003BCCA 49 at para. 101: [101] The relevant principles may be briefly summarized.

The standard of proof in relation to future events is simple probability, notthe balance of probabilities, and hypothetical events are to be given weight according to their relative likelihood: Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled to compensation for real and substantial possibilities of loss,which are to be quantified by estimating the chance of the loss occurring: Athey v. Leonati, supra, at para. 27, Steenblok v. Funk (1990),46 B.C.L.R. (2d) 133 at 135 (C.A.).

The valuation of the loss of earning capacity may involve a comparison of what the plaintiff wouldprobably have earned but for the accident with what he will probably earn in his injured condition: Milina v. Bartsch (1985), (BC SC), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the end of the inquiry; the overall fairness andreasonableness of the award must be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644(C.A.) (Q.L.). Moreover, the task of the Court is to assess the losses, not to calculate them mathematically: Mulholland (Guardian adlitem of) v.

Riley Estate (1995), (BC CA), 12 B.C.L.R. (3d) 248 (C.A.). Finally, since the course of future events isunknown, allowance must be made for the contingency that the assumptions upon which the award is based may prove to be wrong:Milina v. Bartsch, supra, at 79. … [150] Dr. Filbey, consistent with the evidence of both Mr. Andrusko and Ms. Stroud, found that it was more likely than not that he hadreached a point of maximum medical improvement. He concluded that Mr. Andrusko was more likely than not to remain symptomatic athis current level, assuming that he continues to exercise and obtains therapy as needed. Dr.

Filbey concluded that the pars defect wasassociated with biomechanical alterations in his back area following the symptom development, which predisposed Mr. Andrusko to bemore recalcitrant to treatment and recovery in the low back. Dr. Filbey stated that there was a “real” possibility that Mr. Andrusko wouldhave increased lower back symptoms in the future: It is possible that 10-15 years down the road he will have some increased low back pain related to the symptomatic pars defect. Suchaggravation would likely increase his symptoms burden in the lumbar spine.

The cervicothoracic and costovertebral symptoms are likelyto remain stable without significant change based upon the current pattern. [151] Dr. Filbey also addressed Mr. Andrusko’s prognosis given his chosen line of work in manual labor: Occupationally, Mr. Andrusko is a manual worker. He has limited educational background to grade 10 and does not plan on furtherformal education. He enjoys manual labour and is able to tolerate such work but it is evident from his reports that he has symptomaggravation with such tasks.

It is reasonable to assume that he will be able to continue with such employment as tolerated but hisdurability over the long-term with such works may be less. It is my opinion that over by 10-15 years from now, his low back symptomsare likely to be increased with manual labour and will limit his employment opportunity and durability. He would be best suited for work that sedentary or light. Moderate tasks may be tolerable to him so long as he can vary his tasks andactivities during the day. Heavy regular labour is not recommended for him based upon his symptom pro

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