Nicole Sandra Furlong Plaintiff And: Sexton Trucking Limited First Defendant And: Darrell Payne Second Defendant, 2019 NLSC 202

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Furlong v. Sexton Trucking Limited , 2019 NLSC 202 Date : November 12, 2019 Docket : 201206G0075 Between: Nicole Sandra Furlong Plaintiff And: Sexton Trucking Limited First Defendant And: Darrell Payne Second Defendant Before: Justice Daniel M. Boone Place of Hearing: Clarenville and St. John’s, Newfoundland and Labrador Dates of Hearing: February 4 – 6; 11 – 14; 19 – 21; 26 – 28; March 1; May 13 – 15; June 3 – 5, 2019

Summary: In an action for personal injury caused by a highway accident, the Defendants were found liable, but the Plaintiff’s damages were reduced because of her contributory negligence. The accident caused the Plaintiff soft-tissue injuries and chronic pain that will continue. She was found to have residual earning capacity. Damages for past earning capacity were reduced for failure to mitigate. Appearances: Stacy G. MacDonald Appearing on behalf of the Plaintiff

Philip J. Buckingham and Adam Ronan Appearing on behalf of the Defendants Authorities Cited: CASES CONSIDERED: Tucker (Public Trustee of) v. Asleson (1993), (BC CA), 24 B.C.A.C. 253; MacEachern(Committee of) v. Rennie, 2009 BCSC 585; Millott Estate v. Reinhard, 2002 ABQB 761; Fuller v. Schaff, 2009 YKSC 10; Ryall v.Coombs (1995), (NL SC), 131 Nfld. & P.E.I.R. 299, 408 A.P.R. 299 (Nfld. S.C.(T.D.)); Iannarella v. Corbett, 2015ONCA 110; McLouglin (Guardian ad litem of v. Ray Luff Ltd., 2003 NLCA 3; Morgan Estate v. Newfoundland, 2007 NLCA 39; Gossev. CBS Taxi Ltd., 2000 NFCA 16; Gordon v.

Sexton, 2013 NLTD(G) 127; Ryan v. Curlew, 2018 NLSC 72; Fost v. Badcock, 2005 NLTD213; Tibbetts v. Murphy, 2017 NSCA 35 STATUTES CONSIDERED: Contributory Negligence Act, R.S.N.L. 1990, c. C-33; Automobile Insurance Act, R.S.N.L. 1990, c. A-22; Judgment Interest Act, R.S.N.L. 1990, c. J-2 RULES CONSIDERED: The Rules of the Supreme Court, 1986, S.N.L., 1986, c. 42, Sched. D REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] This action arises out of a motor vehicle accident, which occurred on December 15, 2010.

The Plaintiff is claiming damagesfor personal injuries she alleges she suffered due to the accident. [2] The Defendants deny negligence on the part of the Second Defendant and liability for the accident, which they assert wasentirely the result of the Plaintiff’s own negligence. In the alternative, the Defendants take the position that if the First Defendant wasnegligent, then so was the Plaintiff and her damages ought to be reduced accordingly as provided for in the Contributory Negligence Act,R.S.N.L. 1990, c. C-33.

The Defendants also dispute the extent of the Plaintiff’s injuries and the quantum of damages that she claims. Issues 1. Was the Second Defendant negligent in the operation of the Defendants’ lumber truck? 2. Was the Plaintiff negligent in the operation of her vehicle? 3. If either or both of those questions is answered in the affirmative, then was such negligence a cause of the accident? 4. If both Second Defendant and Plaintiff were negligent and their negligence causative of the accident, then how should liability beapportioned between the parties? 5.

To what damages is the Plaintiff entitled in compensation for the injuries she suffered in the accident? The Accident [3] The accident happened on a clear, December day on Route 230, a provincially maintained highway that runs betweenBonavista and Clarenville. Neither weather, visibility, nor road conditions was a factor in the accident. Both drivers were headed southtoward Clarenville on the stretch of Route 230 between the community of Morley’s Siding to the north and the Clarenville Airport to thesouth. There is some dispute as to the precise site of the accident.

However, the entire stretch is a two-lane, asphalt road with relativelynarrow gravel shoulders on each side. There are no dedicated passing lanes on this stretch but passing is permitted in intermittentlocations marked by dotted yellow lines. The posted speed limit headed south through Morley’s Siding is 50 km/h, and then it increases,initially to 80 and then 90 km/h, which was the speed limit at the location of the accident scene. [4] The Plaintiff was driving a 2007 Chevrolet Impala.

Her only passenger was her friend’s five-year-old daughter, BrooklynKeough, who was in a booster seat in the rear middle position. They were headed to Clarenville after a short side-trip up Route 233 for abrief stop in Bloomfield. On the route back to Route 230 from Bloomfield, Route 233 passes by the Sexton Lumber Yard. [5] Second Defendant Darrell Payne was driving a Sexton’s Lumber truck, which was a 22-wheel transport truck equipped withair brakes and a Jake brake that uses the horsepower of the vehicle to slow it once the operator lets off the accelerator.

Payne left theSexton Lumber Yard with a load of wood chips. As he was headed toward Clarenville, he drove Route 233 to its intersection with Route230.

[ 6 ] On Route 233, between the Sexton Lumber Yard and the intersection, the Plaintiff came up behind the Sexton Truck in her Impala. Both drivers turned right off Route 233 and proceeded south on Route 230. [ 7 ] As the Plaintiff and Payne both drove south, another Impala being driven by Peggy Russell came up behind the Plaintiff’s car. After the three vehicles had driven through Morley’s Siding, and reached the area where the posted speed limit was 90 km/h, the Plaintiff pulled out on a dotted line and passed the Sexton truck.

The Russell Impala passed the Sexton truck soon after the Plaintiff did, and pulled back in between the Sexton truck and the Plaintiff. Shortly after both Impalas had passed the truck, the Plaintiff slowed her vehicle and pulled toward the right of the highway. She brought her vehicle to a stop partially on the gravel shoulder and partially on the paved highway.

The extent to which the vehicle was off the paved portion of the highway is in dispute. [ 8 ] In the moments after the Plaintiff stopped her car, the Sexton truck struck the Russell vehicle, then collided with the rear of the Plaintiff’s vehicle. [ 9 ] Royal Canadian Mounted Police (RCMP) Constable David Burden testified at trial. He was one of several RCMP members called to the accident scene and was primarily responsible for the RCMP investigation.

That investigation involved taking photos at the scene and taking statements from the three drivers involved, as well as from Pauline Holloway who was a passenger in a vehicle travelling in the opposite direction to the involved vehicles on Route 230. The RCMP investigation file and photographs were introduced into evidence. The restricted scope of the investigation limited the assistance it provided in determining how the accident occurred. The photographs were helpful in understanding the scene. Two accident reconstruction experts who testified utilized the photographs in their respective investigations.

No charges were laid as a result of the RCMP investigation Evidence of the Drivers i. The Plaintiff [ 10 ] The Plaintiff testified that as she proceeded down Route 230 she was looking for an opportunity to pass the Sexton truck because wood chips were flying off the back of it. After the vehicles had passed through Morley’s Siding and reached the 90 km/h zone, she saw opportunity and passed. She had been driving at 90 km/h immediately before she passed, so she accelerated to a little above the speed limit to pass. She completed the pass by pulling back into the south lane and then slowed back to the speed limit.

She noticed that another Impala, the Russell vehicle, passed the truck right after she did. [ 11 ] According to the Plaintiff, soon after she had completed her passing maneuver, her young passenger, Brittany Keough, began to vomit. The Plaintiff decided to pull off the road. She knew the road’s shoulder was narrow, and that she would be unable to get her vehicle completely off the roadway, but there was no other place to pull off for some distance.

Brittany was crying and screaming, and the Plaintiff was concerned that she might aspirate and choke, so she activated her turn indicator, braked and pulled off abruptly. She did not look in her rearview or give any thought to the vehicles behind her. [ 12 ] The Plaintiff brought her vehicle to a stop and then turned to Brittany. She had not yet unlocked her seatbelt when her car was struck violently from behind by the Sexton truck. ii. Peggy Russell [ 13 ] Peggy Russell’s testimony at trial was based on memory of the accident events that was not clear.

Her memory was often refreshed by reference to statements that she had made earlier, and the transcript of her discovery. [ 14 ] .She was able to recall that she was travelling at 90 km/h when she pulled out to pass the Sexton truck right after Furlong had done the same. She observed oncoming traffic as she completed the pass. She pulled in about four car lengths behind Furlong, a couple of car lengths ahead the Sexton truck. The Furlong vehicle signaled and then pulled off “kind of fast.” The Furlong vehicle did not pull fully off the road.

Russell slowed her vehicle to about 20 km/h and passed the slowing Furlong vehicle. She believes she could have come to a complete stop without colliding with the Furlong vehicle but there was no need to do so, as she was able to pass by without encroaching significantly on the opposite lane. As she was passing Furlong, the Sexton truck collided with her vehicle and then the Furlong car. iii. Darrell Payne [ 15 ] The essence of Mr. Payne’s testimony begins with his description of the three vehicles having just passed through the community of Morley’s Siding.

The roadway past Morley’s Siding goes around a bend and then up a small incline. Payne testified that as he was rounding the bend, and still accelerating, travelling at about 80 km/h, he noticed the Furlong Impala pulling out to pass his truck. As Furlong was completing her pass, the Russell Impala also pulled out to pass his truck. Payne was still accelerating while Russell was completing her passing maneuver. His truck reached the bottom of the small incline at the speed of 90 km/h as Russell pulled her vehicle in front of his truck and behind the Furlong Impala.

As soon as Russell completed her pass, Payne recognized that his safety zone had been compromised. He therefore took his foot from the accelerator, which engaged the Jake Brake. He then put his foot on the brake. Immediately after that, he observed traffic approaching in the opposite direction, so he braked harder. Then he saw the brake lights of the Russell Impala come on and he braked even harder. He then observed the Furlong Impala pulling off to the side of the road, and the Russell vehicle passing it but encroaching into the opposite lane to do so. Payne then increased his braking even harder.

He recognized, however, that he likely could not stop in time to avoid the Russell vehicle, and that moving into the opposite lane would endanger those in the oncoming traffic. He chose to pull his vehicle to the right shoulder and continue to apply his brakes. He was unable to avoid collision and his vehicle first struck the passenger side of the Russell vehicle and then the rear of the Furlong car. Expert Witnesses i. Dr. Stuart Smith [ 16 ] Dr. Stuart D. Smith, a forensic engineer and accident reconstructionist, was retained and called by the Plaintiff. He was

qualified as an expert in forensic engineering and accident reconstruction, to give opinion as to reconstruction of the accident, includingopinion as to the relevant factors of time, distance, and reaction time. His report on his findings was entered into evidence. [17] Dr. Smith attended at the accident scene some years following the accident. Utilizing RCMP photos and a landmark, he wasable to locate the point at which the Plaintiff’s Impala came to rest on the shoulder of Route 230 after the accident.

Using photos of thePlaintiff’s Impala and techniques involving known specifications of the vehicle and a photo of an exemplar, undamaged Impala, hedetermined that the accident resulted in 585 millimeters of crush to the rear of the Impala. Based on data from standard crush tests onsimilar vehicles, he determined that the speed at which the Sexton tractor trailer was travelling at the point of impact with the Impala was67 kilometres per hour. He opined that the Furlong vehicle came to rest between 29 to 47 metres from the point of impact.

The range ofpost-impact travel resulted from uncertainty as to the coefficient of friction of the gravel shoulder. Dr. Smith conceded that the range ofstopping distance could have been greater as he had presumed in his calculations that all four wheels of the Impala were on gravel, whenin fact the two driver’s-side wheels were on the asphalt surface. [18] Dr. Smith also took measurements of the scene, including the distance between each of the determined points of rest and ofimpact, and the end of the southbound passing lane.

The most important point was the location of the end of the passing lane and itsdistance from the point of impact. Ms. Russell testified that she completed her pass of the Sexton vehicle just past the end of the dottedline, which means that the Sexton vehicle was approximately at the end of the dotted line at that time. At this point, therefore, bothImpalas were in front of the Sexton vehicle. The end of the passing lane is 431 metres from the point of rest of the Plaintiff vehicle andtherefore between 384 metres and 402 metres from the point of impact.

A vehicle travelling at the speed limit of 90 kilometres per hourwould travel 402 metres in 16.08 seconds, 384 metres in 15.36 second, and because of the uncertainty of the coefficient of friction,perhaps as little as 15 seconds. [19] According to Dr. Smith, the distance required to stop a heavy vehicle, such as the Sexton truck and trailer, on a level road wouldbe 47 to 57 metres assuming full braking. He also testified that the perception reaction time for a driver presented with a sudden obstacleor hazard is 1.5 seconds.

He noted that there is a lag time of 0.5 seconds between application and engagement of air brakes, andtherefore the time between perception and full braking of a transport truck is 2 seconds, over which time the truck would travel a distanceof 50 metres. The distances required for a truck driver to perceive a hazard, apply full braking and bring the vehicle to a complete stopwould be between 97 and 107 metres. ii. Raymond Skinner [20] Raymond Skinner, a commercial driving instructor with the College of the North Atlantic, testified as a witness for the Plaintiff.

The Court does not need expert evidence to determine the standard of care required of drivers of ordinary passenger vehicles. However,I was satisfied by the evidence of Mr. Skinner that the technical aspects of the operation of a commercial vehicle are sufficiently distinctfrom that of the operation of ordinary passenger vehicles that expert evidence is necessary for the Court to understand the requisitestandard of care. Other Canadian courts have reached similar conclusions (see Tucker (Public Trustee of) v. Asleson (1993), (BC CA), 24 B.C.A.C. 253; MacEachern (Committee of) v.

Rennie, 2009 BCSC 585; Millott Estate v. Reinhard, 2002ABQB 761; and Fuller v. Schaff, 2009 YKSC 10). [21] I accepted Mr. Skinner as an expert in the driving and operation of an 18 or 22-wheel transport truck equipped with air brakes. He was qualified specifically to testify as to stopping distances and appropriate driving procedures where different for Class 1 driversoperating vehicles such as the one Mr. Payne was operating. [22] Mr.

Skinner testified that a vehicle of the length of the Sexton tractor trailer travelling in excess of 60 but less than 100 km/hrequires a time of about eight seconds to stop with full braking. He did not testify as to the distance that the slowing truck will travel inthat time. He testified that the reaction time required between the driver’s observation of a hazard and application of the brake is threeseconds, and that there is a .75-second lag time between application and engagement of an air brake. Given the time to bring the vehicleto stop from perception of a hazard, Mr.

Skinner teaches his students that when travelling at highway speeds they should establish andmaintain a safety zone of 150 metres between a tractor trailer and vehicles ahead. [23] Mr. Skinner teaches his students to assume that a vehicle passing a tractor trailer presents an immediate threat to the safety zone,based on the assumption that the vehicle passing will pull back into the travel lane at a distance of less than 150 metres from the front ofthe truck.

Therefore, a tractor trailer driver whose vehicle is being passed should take defensive action to protect the integrity of thesafety zone by anticipating its impending infringement and reducing the speed of the tractor trailer to reduce the time required toreestablish the safety zone once the other driver completes the passing maneuver.

He testified that simply taking the foot off the gas isan insufficient step, as this will not slow the tractor trailer enough, and that some application of the brakes (albeit not full braking) isrequired to protect the integrity of the safety zone from the anticipated breach by the other vehicle pulling back into the lane. iii. Patrick Ryan [24] Patrick Ryan was called by the Defendants, and was qualified as an expert in forensic engineering and accident reconstruction. He attended at the scene of the accident in 2016.

He based his opinion on his observations and measurements taken during thatattendance, as well as photographs taken by the RCMP and by the owner of the First Defendant, and on review of discovery transcriptsand witness statements. [25] Mr. Ryan utilized scene photos taken immediately following the accident to locate the point of collision relative to the shoulderand paved road.

A photo of the tractor trailer unit taken after the accident showed tire tracks in the gravel shoulder extending behind thetrailer in a straight line, from which he extrapolated to form the opinion that the tractor trailer was oriented straight along the line of theroadway, but partially driving on the shoulder at the time of collision between the vehicles.

Based on the damage to each of the vehicles(which he discerned from photos), he further concluded that the point of collision was between the extreme right of the rear bumper ofthe Plaintiff’s vehicle and the area along the front bumper of the tractor just below its right headlight. He then determined from thelength of each vehicle and the photographic evidence of tire marks from the trailer, that the Plaintiff’s vehicle at the time of collisionextended approximately 1.3 metres onto the travel portion of the northbound lane.

[26] Based on that estimate, Mr. Ryan drew three further conclusions. First, there was insufficient room left in the southbound lanefor the tractor trailer to have passed the Plaintiff’s vehicle without entering the northbound lane. Second, there was sufficient space onthe gravel shoulder for the Plaintiff’s vehicle to have pulled a further 0.9 metres safely to the right.

Third, if the Plaintiff had done that,the tractor trailer could have passed the Plaintiff vehicle without intruding into the northbound lane. [27] There was oncoming northbound traffic but the question whether the tractor-trailer could have passed the Plaintiff vehicle withor without entering the northbound lane is irrelevant. The Russell vehicle occupied most of the rest of the southbound lane, and Russellhad slowed to 20 km/h.

Unless Payne slowed the tractor trailer to 20 km/h or less, then he could not have passed the Plaintiff vehiclewithout colliding with Russell. [28] Based on data from standard crush tests on similar vehicles, Mr. Ryan determined that the speed at which the Sexton tractortrailer was travelling at the point of impact with the Impala was no more than 61 kilometres per hour, and perhaps as little as 50kilometres per hour. Liability analysis Payne was negligent and his negligence a cause of the accident [29] The legal burden to prove negligence usually lies with the party asserting it.

In this case, each of the parties bears the legalburden of demonstrating that the other was negligent. The Plaintiff in this case is assisted by a clear line of precedent holding that proofthat the Defendant’s vehicle collided with the rear of the Plaintiff’s vehicle is sufficient to establish negligence on the part of theDefendant. The evidentiary burden then shifts to the Defendant to demonstrate that the accident happened without negligence on theDefendant’s part: See, for a decision in this Court, Ryall v. Coombs (1995), (NL SC), 131 Nfld. & P.E.I.R. 299, 408A.P.R. 299 (Nfld.

S.C.(T.D.)), at paragraphs 8 and 9; and a recent decision from a provincial appellate court, Iannarella v. Corbett, 2015ONCA 110, at paragraphs 7 to 13. [30] The Defendants say that Payne has provided an explanation as required of him. They say that the evidence demonstrates thathe was driving at the speed limit, with no vehicles in front of him in his safety zone. Once the Plaintiff and Russell passed, their vehiclesinfringed his safety zone.

When Russell completed her passing maneuver by pulling back into his lane, then Payne let off the acceleratorand started to brake in order to re-establish a safe distance between his vehicle and hers. However, before he could re-establish thesafety zone, the Plaintiff abruptly pulled to the right and stopped her vehicle, and Russell slowed to avoid her. Their vehicles obstructedPayne’s path through the southbound driving lane. At that point, he was unable to stop in order to avoid collision.

He consideredpulling into the northbound lane to pass but he did not believe that he could complete this maneuver quickly enough to avoid oncomingnorthbound traffic. He maintains that the collision with the Russell and Payne vehicles was unavoidable because there was nothing hecould have done to avoid the collision. [31] The Defendants’ position is valid as far as it goes. The cases often ground liability of the driver who collides with the rear ofanother on either following too closely or driving at a speed excessive for conditions. In this case, Payne was driving at the speed limitand the road was dry.

Although he was following too closely, the immediate cause of that situation was the Russell and Plaintiff vehiclescompleting their respective passing maneuvers by pulling back into the lane ahead of his vehicle. Before they did that, there were novehicles travelling in front of Payne. [32] However, the Defendants’ explanation loses its persuasiveness as an exculpatory explanation when we back our attention up tothe point when each of the Plaintiff and Russell vehicles passed the Sexton truck.

Raymond Skinner testified that a commercial truckdriver ought to recognize that when another driver pulls out to pass a truck, then on completion of that maneuver the other vehicle willprobably pull back into the lane leaving a distance less than safety requires. The standard of care required of a commercial truck drivertherefore includes that the driver take action to protect the integrity of the safety zone while the other vehicle is passing, and not after thepass is completed.

At highway speed, merely removing the foot from the accelerator (which engages the Jake Brake) is insufficient tomaintain the integrity of the safety zone. Braking, even hard braking, is required. The process of removing the foot from the acceleratorand braking ought to start once the truck driver recognizes that another vehicle is passing. [33] The time required to stop a fully loaded 70-foot tractor trailer unit at a speed of between 60 to 100 km/h is eight seconds. At aspeed of 90 km/h, the tractor trailer will travel 150 metres in that time.

Even allowing for a lesser distance to stop, given that the unitwill be decelerating and not going abruptly from 90 to zero km/h, the distance that should be maintained is still more significant than thatat which most drivers will pull back into the lane ahead of the passed truck. Mr. Skinner testified that the standard of care requiresleaving a safety zone of distance over which the truck will travel in eight seconds. I find that the standard of care, as described by Mr.Skinner, is the appropriate standard of care to apply to this situation.

The only way a truck driver can maintain the safety zone whenbeing passed is to slow down by removing the foot from the accelerator and applying the brakes as soon as the driver recognizes thatanother driver is pulling out to pass him. [34] Mr. Payne did not do this. He took no action to maintain or re-establish his safety zone until Ms. Russell completed her pass. Indeed, Mr. Payne testified that he not only failed to slow down but continued to accelerate as both the Impalas were passing him. [35] I find the failure of Mr.

Payne to have slowed his vehicle by applying his brake, and his continuing to accelerate, as he wasbeing passed by first the Plaintiff and then Ms. Russell constitutes a breach of the standard of care. Each failure to respond as thestandard of care required constitutes negligence on his part. [36] I do not find that Mr. Payne was negligent in his choice to pull to the side of the road rather than into oncoming traffic. Oncehis lane of travel was blocked and he could not stop then he could not avoid a collision.

However, as it was his own actions in failing toslow his truck as the standard of care required that put him in this position, the dilemma presented to him does not provide him with adefence based on agony of collision. [37] Mr. Payne’s breach of the standard of care was a cause of the accident. Dr. Smith calculated the speed at impact of the tractortrailer at 67 km/h; Mr. Ryan calculated the impact speed at a minimum of 50 km/h but perhaps as much as 61 km/h. Ms. Russell moved

back into the lane ahead of Payne at the point where the passing lane ended, approximately 384 to 402 metres from the point of impact. At that point, a vehicle travelling at 90 km/h would take about 16 seconds to travel to the point of impact. The vehicle could be broughtto a full stop within eight seconds from the point of perceiving a hazard. Therefore, if Payne had started to apply the brakes as he wasbeing passed by each of Russell and Plaintiff, he could have stopped his vehicle within sufficient time and distance to have avoidedcollision.

This would be especially so as his vehicle would have been slowed from 90 km/h as he was being passed by the Plaintiff andslowed even more as he was being passed by Russell. Instead, Payne continued to accelerate, and then drive his fully loaded 70-foot-long trailer ahead at 90 km/h until Russell completed her pass. The Plaintiff was negligent and her negligence a cause of the accident [38] The Plaintiff was also negligent.

I accept that she perceived that she faced an urgent situation when young Brooklyn Keough inthe back seat began to vomit, and I accept that the Plaintiff was concerned in that instant that the child might gag or choke. I also acceptthat the road’s narrow shoulder continued through the whole stretch of road and that there was nowhere for her to safely pull the vehicleentirely onto the shoulder.

I am also not persuaded that she should have pulled her vehicle further off the road because from her vantagepoint she could not see the available shoulder. [39] However, the Plaintiff had just passed the Sexton truck and she was aware that the Russell vehicle had as well. Yet, she took noaccount of the presence of these two vehicles close behind her when she slowed abruptly and then came to a complete stop. She did noteven look in her rearview mirrors as she slowed and stopped. She did not consider the distance at which Russell and Payne were behindher or whether they would have time to stop to avoid her car.

She knew that the paved driving lane was narrow, that one of the vehiclesbehind her was a tractor-trailer, that the vehicles behind her were moving at highway speed, that her vehicle would not be completely offthe paved surface when she stopped, and that there was oncoming traffic in the northbound lane. There is no basis to find that the dangerto Brooklyn Keough was so immediate as to justify putting others (as well as herself and her passenger) at risk. A glance in the rearviewto determine the proximity of the following vehicles would have taken no significant time. Ms.

Russell testified on cross-examinationthat the Plaintiff’s stopping was not slow or gradual, but rather abrupt, “kind of fast.” The Plaintiff could have slowed her vehicle moregradually, having due regard to the speed and proximity of the vehicles behind her and the evidence does not support a finding that doingso would have caused danger to the child. The Plaintiff did not meet the standard of care required of an ordinary car driver on ahighway. She was negligent. [40] The Plaintiff’s negligence contributed to the cause of the accident.

Her abrupt maneuver caused Russell to slow abruptly andthe two cars effectively then blocked the passage of the Sexton truck. Mr. Payne was then required to either pull to the side or cross intooncoming traffic. If the Plaintiff had glanced in her rearview mirror and observed the close proximity of the following vehicles, shecould have pulled to the side more gradually allowing the following vehicles time to respond without a collision resulting.

The evidencepresented regarding the stopping distance required for the Sexton vehicle also demonstrates that the Plaintiff would only have had toextend her maneuver over a few seconds in order for a collision to have been avoided. There was no direct evidence on this particularpoint, but scientific precision is not required for an inference of causation to be drawn. The question of Russell’s conduct [41] Neither party sued Russell. It is perhaps open to me under the Contributory Negligence Act to determine that she was negligent. I questioned both counsel on this point during final submissions.

Only the Defendants’ counsel invited me to make a finding thatRussell was negligent. However, I decline to do so. Russell testified, but she never had opportunity to defend her actions against a claimin negligence. In the circumstances, it would be unfair to attribute liability to Russell. Apportionment [42] The conclusion that each of Plaintiff and Second Defendant was negligent raises the question of apportionment of fault betweenthem.

Apportionment must be determined based on assessment of the parties’ relative degree of departure from the applicable standardof care, and not on consideration of relative degrees of causal contribution to the accident. McLouglin (Guardian ad litem of v. Ray LuffLtd., 2003 NLCA 3, at paragraph 48 states: The determination of fault of each party, and the consequent apportionment of liability, requires an assessment of the extent to whicheach party failed to meet the standard of care applicable in the circumstances (Cempel v. Harrison Hot Springs Hotel Ltd., supra, atparagraphs 19 to 24; Clyke v.

Blenkhorn (1958), (NS CA), 13 D.L.R. (2d) 293 (N.S. S.C.), at page 304). [43] The negligence of the Plaintiff was twofold. First, she pulled her vehicle to the side of the road, but not off the travelled portion,abruptly, notwithstanding that she was aware there were two vehicles, one of which was a loaded transport truck, travelling very closebehind her at highway speeds. Second, she failed to look in her rearview mirror to determine how close these vehicles were or, viewedanother way, whether she could complete her abrupt maneuver safely.

I have already determined that the Plaintiff’s perception of apossible emergency arising from the fear that her child passenger could be choking did not relieve her of her duty to take care for otherdrivers on the road. However, that consideration is relevant in determining her degree of departure from the requisite standard of care. She did not decide to pull abruptly to the side of the road for a frivolous or trivial reason.

Nevertheless, she fell below the standard ofcare to a degree that cannot be characterized as minimal. [44] In considering the degree of departure from his requisite standard of care, I note that Payne continued to accelerate as he wasbeing passed by both Impalas. He did not take any steps to slow his vehicle until after Russell’s vehicle had completed the passingmaneuver and pulled back into the lane, at which time Payne, at first, took only the minimal step of removing his foot from theaccelerator.

The evidence demonstrated that the standard of care required that he start to slow by active braking as soon as the Plaintiffvehicle pulled out to pass, and that he ought to have continued to have done so again when the Russell vehicle started to pass. Theevidence of Mr. Skinner demonstrated the considerable importance of a commercial driver maintaining a safety zone at all times whileoperating on a highway. Mr. Payne agreed with the crucial nature of the safety zone. There are potentially significant risks for injuryand property damage in any collision involving a commercial vehicle travelling at highway speeds.

Mr. Payne’s departure from thestandard of care was, therefore, considerable.

[ 45 ] I find that fault for this collision ought to be apportioned two-thirds to the Defendants and one third to the Plaintiff. Damages Plaintiff’s Injury [ 46 ] The Defendants concede that the Plaintiff was injured because of the accident. The parties disagree as to the extent of that injury and as to the damages that she has suffered.

The Court heard testimony relating to injuries and damages from the Plaintiff; her husband and daughter; physicians; ancillary health professionals who either treated or assessed the Plaintiff; an economist retained by the Plaintiff; and from a vocational consultant retained by the Defendants. Plaintiff Evidence Plaintiff before the Accident [ 47 ] The Plaintiff was born on September 23, 1972. She lives in Stock Cove, a small town of about 20 people on the Bonavista Peninsula, with her husband Calvin to whom she has been married for 25 years.

The couple has two children, ages 25 and 20, neither of whom presently live with them. [ 48 ] The Plaintiff graduated high school in 1990 and then in 1996 completed a two-year Office Administration course at the College of the North Atlantic. However, she testified that she never worked in that field as there was no work available in her area. There was no evidence that she ever sought such work. [ 49 ] The Plaintiff fished with her husband from at least 1997, only taking six months off following the birth of her daughter in 1998. She holds a Level I Fish Harvester’s Certification.

Her husband owns and operates a 34’11” vessel, along with smaller boats, and holds licenses to fish groundfish, crab, lobster, capelin, herring, squid, and mackerel. With overlapping seasons, the enterprise operated from spring to late fall each year, and continues to do so. The Plaintiff and her husband gave similar testimony regarding her duties. These duties changed somewhat depending on the fishery prosecuted. During the lobster fishery, she was responsible for cleaning and rebaiting pots.

When engaged in crab fishing, she was responsible for pulling the pots in over the side, shaking the crab free into the hold, rebaiting, and resetting the pots. When the boat was seining for mackerel, herring, or capelin she acted as deck foreperson, relaying instructions from skipper to crew, and sometimes would take over the handling of the vessel. With squid, she participated with the other crew members in jigging, sometimes over the full day. Further, she maintained the boat inside and was responsible for all housekeeping and cooking onboard.

There was no evidence offered to the contrary, and I find that the Plaintiff was engaged actively in the fishery as a full crewmember from spring to late fall each year. She did not work during the rest of the year and received Employment Insurance (EI) benefits. Her husband conceded that in recent years, the nature of equipment utilized on his vessel was not such as to require much maintenance or preparation for the next year’s fishery, and there was no evidence that the Plaintiff participated in any such activity.

Her income from a combination of fishing earnings (which were based on a crew share of landings) and EI benefits over the period 2006 to 2010 ranged from $30,000 to a high of $49,284 in 2010. [ 50 ] The Plaintiff and her husband testified to a fairly active lifestyle prior to 2010. Both testified that they were very engaged with their children. The couple, sometimes with their children, walked, hiked, biked, snowmobiled, and went for ATV rides.

They had a cabin located on an island just offshore where they would spend weekends with their children and other couples, and while there they engaged in recreational fishing. The couple hunted together, and the Plaintiff often had a moose license. The Plaintiff engaged in various crafts including ceramics. She was involved in volunteer work, mainly related to her children’s education and extracurricular activities.

Again, there was no evidence offered to suggest that the Plaintiff was other than very active prior to the accident. [ 51 ] Both Plaintiff and her husband testified that the Plaintiff was primarily responsible for housework, including cooking and cleaning, prior to the accident. [ 52 ] The Plaintiff’s daughter, Nichelle Furlong, is now 20 years old. She testified that family life before the accident was marked by high energy and exciting activity, including swimming, snowmobiling, biking, and fishing. Nichelle was 12 years old at the time of the accident.

Plaintiff after the Accident [ 53 ] The Plaintiff testified that in the immediate aftermath of the accident, she directed her attention toward assisting Brooklyn Keough from the vehicle and into the care of bystanders. The Plaintiff phoned her husband and he arrived at the scene within a very short time. The Plaintiff testified that she has no memory of events following her husband’s arrival at the scene. Her husband testified that soon after his arrival, his wife stated that she was feeling dizzy and nauseous, and he had to assist her to lay on the ground.

An ambulance arrived, and transported the Plaintiff to hospital. She was assessed and released with a soft collar and medication. Emergency Room records from that day demonstrate that she was diagnosed with soft tissue injuries. [ 54 ] The Plaintiff’s testimony as to the course of her injuries was rather cursory and lacking in detail. I find that this was due primarily to her view that little has changed in regard to the effect of her injuries on her life since the initial period following the accident.

She testified that from the day after the accident until the day of her testimony, she has felt constant pain in her neck and shoulder. She has inflammation in those areas. She has frequent headaches. She has significant difficulty sleeping. She has to be extremely careful in activities in order to avoid flare-ups. She was adamant that she has not become depressed as result of her injuries or the effect on her function. She does experience anxiety, for which she is prescribed and takes medication. She believes that she has suffered cognitive effects from her injury, especially memory deficits.

She takes a considerable amount of medication, including muscle relaxants, pain killers and anti-anxiety medications. [ 55 ] According to Nichelle Furlong, family life changed considerably following the accident. Her mother was no longer active, and required constant attention for her pain and other symptoms. Their relationship as mother and daughter was significantly diminished because her mother could not participate in Nichelle’s life and, instead, was focused on her pain and related symptoms. The family went

on one vacation to Disney since the accident, but her mother spent three days of that vacation in her hotel room recovering from the long flight. Following the accident, her father worked three jobs to replace her mother’s income and was often away from home. [ 56 ] Calvin Furlong also testified to the effects of his wife’s injuries on her, on him, and on their family life. He said that since his wife was injured, he has become the primary housekeeper. He does all of the heavy housekeeping, and all of the cooking. As his wife did not have an income, he has had to take on substantial extra work.

He has continued to operate his fishing enterprise, but has also worked at iron, steel and concrete work at industrial sites in Quebec, Labrador, and Newfoundland during the offseason. These jobs required commuting from home. Except when away for work, he has accompanied his wife to all of her medical and therapy appointments in Clarenville, Bonavista, and St. John’s. [ 57 ] Calvin Furlong’s work in the fishery changed for reasons other than his wife’s injuries.

He testified that before 2010 he would spend the offseason time in fall and winter getting ready for the next fishing year: mending and preparing gear and related activities. He now has so much gear that he does not need to spend much time in the fall and winter getting ready. As well, he testified that, since 2010, the fishery has been so bad that he has moved away from the kind of gear that needs mending and into the use of steel crab and lobster pots.

Although he did not elaborate on this, I take it that when he said the fishery had become bad, he was referring to groundfish harvesting. [ 58 ] As in most cases of this nature, the Defendants had little evidence to offer related to the impact of the injuries on the Plaintiff and her family. Absent surveillance or social media access, Defendants in these kind of cases have very little opportunity short of happenstance to gather evidence as to a plaintiff’s activities.

In this case, the Defendants, during cross-examination of the Plaintiff, adduced media reports and social media demonstrating that the Plaintiff was much more active in school council activities and pet rescue groups than she had asserted in her direct evidence. She initially testified that she had been president of the school council at the school attended by her children until 2010, and that after that time although she retained the title of President others did all of the work.

It is noteworthy that at around 2015-16, the school board had plans to reduce the teacher complement at this school and the school council engaged in a concerted campaign to change these plans. The defence introduced news articles that recounted these protests and identified the Plaintiff not only as President of the council but as playing a prominent role as organizer and spokesperson.

She was even invited to sit as a parent representative on a panel at a public meeting organized by the teachers’ union in Clarenville to discuss teacher cutbacks generally. [ 59 ] I find that this participation in volunteer activities was not so significant as to be regarded as an equivalent of work, or even an indicator of fitness to pursue regular employment. However, this evidence did somewhat undermine my confidence in the evidence from the Plaintiffs’ witnesses. The Plaintiff’s efforts during cross-examination to downplay the importance of each news

article until presented with the next caused me concern in assessing the credibility of her testimony regarding her unobserved activities. The Plaintiff’s medical and allied health professional evidence [ 60 ] Dr. Janet Chaytor has been the Plaintiff’s family doctor since 1999. She testified that the Plaintiff had no prior medical conditions that impacted her ability to work. She did have an episode of soft tissue back pain that appeared to be the result of repetitive strain but this had resolved before the accident. Dr. Chaytor diagnosed the Plaintiff with soft tissue injuries to her neck and shoulder area.

The Plaintiff also complained to Dr. Chaytor of memory issues, but not until some years following the accident. Dr. Chaytor has observed some signs of injury, notably spasm and reduced range of motion, over the years, but has relied mainly on the history from the Plaintiff. Based on that history, she stated her opinion that the Plaintiff continues to be symptomatic from her injuries, with pain and restricted range of motion in her neck and shoulders and headaches. These symptoms continue to restrict the Plaintiff’s activities of daily living. Her symptoms become worse during occasional flare-ups. Dr.

Chaytor treats the Plaintiff with medications including analgesics, anti-inflammatory, and anti-anxiety drugs. She referred the Plaintiff to Dr. Mark Brannan, a pain management specialist. She noted that the Plaintiff has been through extensive physiotherapy and other forms of treatment. She opined that given the length of time since the accident and the extensive therapy, the Plaintiff has likely reached a point where her symptoms will no longer improve. Dr.

Chaytor wrote a letter to Service Canada supporting Plaintiff’s application for Canada Pension Plan (CPP) disability benefits, in which she stated her opinion that the Plaintiff is disabled from any occupation. [ 61 ] Occupational Therapist Edgar Balsom was retained by the Plaintiff’s

Section B insurer to assess her and then to oversee a work- hardening program. On his initial testing in February 2012, he found that the Plaintiff had functional limitations in respect of many types of movement important to engaging in work and other activities of daily living. He recommended a gym-based work-hardening program and he oversaw the Plaintiff’s participation in such a program during the spring of 2012. At the conclusion of the program, Mr. Balsom noted improvement in almost all functional areas.

Notably, he also observed over that time that the Plaintiff experienced significant improvement in her psychological profile resulting from her injury, including reduction in her fear of re-injury, her perception of pain and her perceived disability. However, she was still not able to return to her previous occupation of fisherperson. Mr. Balsom recommended further clinic-based programs with a view to return to work, but the Plaintiff was not referred back to him for that purpose. He did assess her again in October 2012 at which time he noted she had experienced regression in respect of her functional ability.

He again recommended further clinic-based programming and he opined that it would be unsafe for her to return to her previous occupation at that time. He did not see her again. [ 62 ] The Plaintiff testified that she did experience considerable improvement and felt much better following work hardening with Mr. Balsom. However, she still did not believe that she was able to work at that point. [ 63 ] Occupational therapist Jane Simmons was retained by Plaintiff’s counsel to conduct a functional capacity evaluation. Ms.

Simmons found the Plaintiff was restricted in her upper extremity range of motion and in most functional movement. She concluded that the Plaintiff could not return to her previous occupation, and that she was capable only of sedentary to light-level work. However, in Ms. Simmons’ opinion, the Plaintiff could not work even a part time job. The Plaintiff can engage in some productive tasks, but she cannot sustain these tasks to the point that she would be competitively employable. Ms.

Simmons did note that the Plaintiff was more disabled than would be expected given her diagnosis and that in the past clinical intervention by Mr. Balsom, results indicated improvement to Ms. Furlong’s psychosocial risk factors, including fear of re-injury and catastrophic thinking. She felt that there was, therefore, room for improvement in functional activity with further clinical intervention, especially in a multidisciplinary program. Completion of such a

program could result in the Plaintiff improving to the point where she could re-enter the work force in a part time capacity in a sedentary to light occupation. In that regard, however, Ms. Simmons noted that limited opportunities for work existed in the Plaintiff’s community, and the requirement to drive long distances for work would reduce her effective workday tolerance. [ 64 ] Dr. Barbara Ross also examined the Plaintiff at the request of her counsel. She was qualified as an expert in psychiatry, with an expertise in chronic pain conditions, including central sensitization pain and post-concussion syndrome.

She testified that the Plaintiff suffers from central sensitization pain. This diagnosis was offered to provide an explanation as to why the Plaintiff continues to feel pain. Dr. Ross testified that central sensitization pain is a psychological phenomenon involving an abnormal and intense enhancement of pain in the central nervous system. Central sensitization, according to Dr. Ross, can cause the central nervous system to change, distort, or amplify pain and increase the degree, duration, and spatial extent of pain beyond what could otherwise be expected physiologically. [ 65 ] Dr.

Ross also testified that the Plaintiff suffered from mild Traumatic Brain Injury (a DSM-V diagnosis that replaced the DSM- IV diagnostic classification of post-concussion syndrome). According to Dr. Ross, the immediate post-motor vehicle accident medical history supported this diagnosis, as the Plaintiff experienced headaches and an altered state of consciousness reflected in some memory issues in describing the events of the accident. I note, as will be discussed below, that the ambulance records from the time do not reflect a reduced level of consciousness. Dr.

Ross said that the Plaintiff’s husband reported that the Plaintiff appeared “dazed” following the accident, but she conceded on cross-examination that such a feeling can occur following a dramatic event in the absence of concussion. Dr. Ross also supported her diagnosis on a partial Mini mental status exam, and the Plaintiff’s self-reports. Dr. Ross did not perform any other tests for cognitive functioning. [ 66 ] Dr. Mark Brannan is an anesthesiologist who also practices in the area of pain management. He has treated the Plaintiff since 2017, mainly through biweekly injections of xylocaine, an anesthetic drug.

He diagnosed the Plaintiff with chronic neck pain secondary to a whiplash injury suffered in the motor vehicle accident. Dr. Brannan said this injury resulted in reduction of neck range of motion and bilateral muscle spasm. The treatments that he administered had benefits for the Plaintiff. She reported reduction in pain and increase in range of motion with treatment and, objectively, Dr. Brannan noted that the treatments resulted in reduced muscle spasm. He recommended continued xylocaine injections and acupuncture. He does not expect any significant improvement in the Plaintiff’s condition.

Defence Evidence [ 67 ] The Defendants presented evidence regarding the Plaintiff’s injuries from a neuropsychiatrist, an occupational therapist, and two physiatrists. The Defendants also called an occupational consultant. [ 68 ] Dr. John Heitzner, a physiatrist, examined the Plaintiff on two occasions, January 20, 2012, and January 18, 2013, at the request of the Defendants. The Plaintiff went through the work hardening conducted under Edgar Balsom during the period between these assessments by Dr. Heitzner. Dr.

Heitzner concluded that the Plaintiff had suffered soft tissue injuries to her neck, shoulders, and lower back. Her complaints of pain and restriction were not in keeping with his first assessment. But by the time of the second assessment she had, in Dr. Heitzner’s opinion, experienced a dramatic improvement in her symptomology, which he attributed to the work hardening program. Dr. Heitzner opined that by the time of his second assessment, the Plaintiff had reached maximum medical improvement. She was still left with pain in her neck and lower back which was consistent with his findings on examination. Dr.

Heitzner concluded that the Plaintiff was able to participate in the activities of daily living. However, she was left with a residual disability from employment. She was unable to return to her pre-injury employment as a fisher, and she likely never would be able to do so. But, Dr. Heitzner also was of the opinion that the Plaintiff was able to engage in less strenuous employment in any job with lighter physical demands for which she was suited. [ 69 ] Dr. Heitzner also expressed the view that that there was no evidence that the Plaintiff had suffered a brain injury in the accident.

He based that conclusion on the fact that the Plaintiff did not experience a loss of consciousness at the time and that when he saw her several years later she was able to recount details of events, including during the ambulance ride and initial attendance at the hospital, immediately post-accident. [ 70 ] Dr. Heitzner was asked on cross-examination whether he was of the opinion that the Plaintiff showed signs consistent with central sensitization pain, but he said that he saw no features of that kind of complex regional pain syndrome. [ 71 ] Dr.

Max Kleinman is also a physiatrist who examined the Plaintiff at the request of the Defendants. His examination took place on October 31, 2016. He concluded that the Plaintiff suffered soft tissue injuries in the accident that had resolved by the time of his assessment. However, she continued to have complaints of pain that Dr. Kleinman related to chronic pain disorder and resulting emotional overlay. This chronic pain manifested in perceptions of headache as well as musculoskeletal pain. According to Dr. Kleinman, the Plaintiff showed no evidence of ongoing impairment.

However, her reports of headache and sleep disorder rendered it unsafe for the Plaintiff to work as a fisher on an oceangoing vessel. Dr. Kleinman opined that the Plaintiff could return to work in a job with sedentary to light demands. [ 72 ] Danielle Hogan is an occupational therapist. She was retained by the

Section B insurer to perform two separate functions. First, in August 2011, she conducted a home and job site assessment. The job site assessment was of the Plaintiff’s job as fisher on her husband’s vessel. She concluded from that assessment that the job as fisher involved heavy tasks in an unpredictable environment, and that the Plaintiff could not safely return to that position due to her physical restrictions. [ 73 ] Second, Ms. Hogan performed a Functional Capacity Evaluation (FCE) on June 9, 2012. This was just following the completion of the Plaintiff’s work hardening program with Mr. Balsom.

Based on that FCE, Ms. Hogan determined that the Plaintiff was unable to return to the fishery, but she was capable of functioning in a sedentary to light occupation over a part-time workday. [ 74 ] Dr. Tanya Lentz is a psychologist with training in both neuropsychology and clinical psychology and she was qualified to give expert evidence as a neuropsychologist. She was retained by the Defendants to conduct a neuropsychological assessment of the Plaintiff in order to determine if she had suffered either a traumatic brain injury or diminishment of cognitive function as a result of the motor vehicle accident. Dr.

Lentz reviewed the Plaintiff’s medical records and all reports previously referred to in this decision. She assessed

the Plaintiff over two separate days. Her assessment consisted of an extensive interview and the administration of a series of tests of cognitive function. [ 75 ] Dr. Lentz found that the Plaintiff did not put forth maximum effort in her cognitive testing, which meant that the test results likely underestimated her true cognitive abilities. [ 76 ] Dr. Lentz stated that the accident was of such a nature that it would have been sufficient to have caused a mild traumatic brain injury. Most people who suffer such injuries recover within three months. In this case, Dr.

Lentz noted that the Plaintiff did not report any loss of consciousness at the scene and her Glasgow Coma Scales measured during her ambulance trip were not consistent with loss of consciousness. Although the Plaintiff did report some minimal post-accident amnesia, her later clear recollection in her statements and discovery were inconsistent with significant amnesia. The Plaintiff did not report the onset of any cognitive difficulties until several years after the accident, which is also inconsistent with traumatic brain injury. Dr.

Lentz therefore concluded that the Plaintiff did not show signs of persistent traumatic brain injury. [ 77 ] Dr. Lentz did find that the Plaintiff may be suffering from some impaired cognitive function. The uncertainty in her conclusion resulted from the Plaintiff having put forth less than maximum effort during testing. If the Plaintiff is suffering from any true cognitive deficit, then Dr.

Lentz is of the opinion that this is the consequence of chronic pain, pain medications, reduced sleep, depressed mood, and potential secondary gains (such as litigation gains and attention from others), rather than brain injury. The significance of this is that these other causes can be amenable to treatment. [ 78 ] Finally, the Defendants called psychologist and rehabilitation specialist Wade Prior who was retained by the

Section B insurer in August 2012 to carry out a Transferable Skills Analysis. Mr. Prior interviewed the Plaintiff and reviewed the medical and other records to provide an occupational profile of Ms. Furlong and an opinion as to whether she was competitively employable. [ 79 ] Based on the Plaintiff’s educational history and good interpersonal skills, Mr. Prior was of the opinion that the Plaintiff could work as a customer service representative or service clerk on a part time basis. Mr.

Prior utilized federal and provincial government data to determine that, as of the date of his report, there were jobs available in the Bonavista Bay-Notre Dame Bay region in these classifications, and that these jobs paid from $11,500 to $12,500 on a part-time basis. Analysis and Assessment of Damages [ 80 ] I conclude from the evidence that the accident caused the Plaintiff soft tissue injuries affecting her neck, shoulders, and lower back, and that she experiences headaches on a regular basis.

These injuries may or may not have resolved, but regardless, the Plaintiff continues to suffer continuing perceptions of pain that are disabling to her. The Plaintiff’s perceptions of pain are perhaps out of keeping with the physical findings and normal course of such injuries, but her perception is nonetheless real and results from the complex relationship between emotional overlay and physical cause of pain that is commonly described as the recognized condition of chronic pain syndrome. [ 81 ] I cannot find on the evidence that the Plaintiff suffers from central sensitization pain as articulated by Dr. Ross.

According to Dr. Ross, the science of understanding pain from soft tissue injuries continues to move forward, having moved through explanations designated as somatoform disorder, chronic pain syndrome and fibromyalgia. I note that this history is mirrored in the evolution of the case law assessing damages in this area. These diagnoses provide an explanation as to why a person might continue to feel pain. Therefore, an opinion such as that of Dr. Ross has logical relevance to the material issue as to whether this plaintiff continues to feel pain.

But, none of the designations or diagnoses of pain syndromes are based on a measurable technique or method to establish that a particular person is in fact continuing to feel pain. Pain cannot be measured and neither can a particular person’s susceptibility to perception of pain. In a trial of an action for personal injury, the determination that a person is affected by pain still depends on assessment of credibility.

Explanations for pain continuing beyond the time that would be expected must therefore be treated carefully, so as to not misuse evidence demonstrating plausibility to extrapolate to a finding of honesty or reliability. [ 82 ] In the absence of evidence of consensus, peer-reviewed measurable and reproducible diagnostic criteria for determining whether a person has this condition of central sensitization pain, the most that can be said about this diagnosis is that the Plaintiff’s complaints of continuing pain are plausible.

It is not evidence tending to show that the Plaintiff is in fact continuing to experience pain. I do not find it helpful, therefore, to classify what this plaintiff is experiencing as central sensitization pain. [ 83 ] It is enough that all experts who testified agreed that people experience and perceive pain differently and some people will continue to feel pain beyond what the mechanics of injury, the observable physical changes, or the usual experiences of others would predict.

The question as to whether this particular plaintiff is such a person is still one entirely based on credibility and scientifically demonstrated and validated techniques demonstrating measurable limitations. [ 84 ] I do find that the Plaintiff suffers from chronic pain that affects every aspect of her daily life.

The extent of this impact, which is the primary determinant of the damages to which she is entitled, depends on the Plaintiff’s own evidence and on the objective findings of professionals. [ 85 ] I find that the Plaintiff did not establish that she suffered a traumatic brain injury with residual cognitive deficit in the accident. She does not suffer from post-concussion syndrome as that condition has been described in the DSM-IV and in previous cases of this nature. The only professional who testified to the contrary was Dr. Ross. The opinion of Dr.

Ross was based only on limited objective testing, a partial mini mental status exam, which according to Dr. Ross and Dr. Lentz is ordinarily not utilized to determine traumatic brain injury in cases of this nature. This contrasts with the more comprehensive, validated cognitive testing performed by Dr. Lentz, whose opinion was that the Plaintiff did not suffer from traumatic brain injury or post-concussion syndrome. Further, I find that the evidence does not support a loss of consciousness in the immediate post-accident period. Although the Plaintiff reported to Dr.

Ross that she had some memory deficit in the period immediately following the accident, she was able to recount events immediately before and after the accident to other professionals. She has also been able to recount these events consistently over the years in statements, on discovery, and at trial. Her husband’s report that the Plaintiff appeared dazed following the accident cannot overcome the contrary evidence that the Glasgow Coma Scale test administered several times in the ambulance on the way to hospital had results inconsistent

with any loss of consciousness, and that Emergency Room records did not record loss of consciousness. The first record of any report by the Plaintiff of cognitive difficulties was made to Dr. Chaytor but that was in 2017. I accept the opinions of Dr. Lentz and of Dr.

Heitzner that that the absence of evidence of head injury and immediate post-accident loss of consciousness together with the results of cognitive testing and the Plaintiff’s minimal difficulty with recounting accident events demonstrate that the Plaintiff did not suffer traumatic brain injury. [ 86 ] I generally accept the Plaintiff’s description of the impact of pain on her activities. Her evidence was supported by the testimony of her husband and daughter. I do note that the Plaintiff’s participation in volunteer activities during 2015-16 is somewhat out of keeping with her own more catastrophic description.

I have taken this into account in the assessment of her damages, as it is indicative of the Plaintiff doing more than she described to the Court. As I earlier found, these volunteer activities were not so extensive as to equate to the ability to engage in competitive employment. But, I considered the fact that the Plaintiff was able to participate in these activities when assessing her claims against the damages awarded in otherwise similar cases. [ 87 ] The Plaintiff has a deficit in earning capacity directly because of the accident.

She no longer has the capacity to work in her pre-injury employment as a fisher on an oceangoing vessel. The experts who testified were unanimous in their opinions that she could not ever return to that occupation. The more difficult question is whether she has any residual earning capacity at all. [ 88 ] Dr. Chaytor testified that the Plaintiff is not competitively employable in any occupation and this is consistent with her support for the Plaintiff’s application for CPP disability benefits. However, Dr. Chaytor admitted to limitations in her ability to assess occupational suitability.

She also based her opinion on the significant passage of time since the Plaintiff has worked. [ 89 ] Ms. Simmons stated her opinion that the Plaintiff is not suitable for any occupation at present. However, the FCE conducted by Ms. Simmons also showed invalidity indicative of the Plaintiff failing to put forth maximum effort. Ms. Simmons’ opinion was also, like that of Dr. Chaytor, based somewhat on the length of time over which the Plaintiff has been away from the work force.

She also was of the opinion that completion of a work hardening program could result in the Plaintiff improving to the point where she could re-enter the work force. Ms. Simmons testified that limited opportunities for work existed in the Plaintiff’s community, and the requirement to drive long distances for work would reduce her effective workday tolerance. This latter limitation was based only on the Plaintiff advising Ms. Simmons that there were no jobs in or near her community within the fields open to her, and not on any independent work on Ms.

Simmons’ part to establish this as fact. [ 90 ] The evidence of Mr. Balsom and Ms. Hogan demonstrated that in 2012-13, within a couple of years of the accident, the Plaintiff had the capacity to work a partial workday in a sedentary to light occupation. There was no evidence to the contrary. [ 91 ] I find, therefore, that the Plaintiff had no residual earning capacity from the time of the accident until the spring of 2012. At that time, after completion of work hardening, the Plaintiff had achieved a residual earning capacity to work part-time in a sedentary to light capacity. She could have returned to work. Dr.

Heitzner and Dr. Kleinman opined that she still had residual earning capacity at the time of their respective assessments. Ms. Simmons stated the Plaintiff was not able to work at the time of her assessment, but if she completed a work hardening program, then she could possibly re-enter the work force at a job with sedentary to light demands. [ 92 ] However, the Plaintiff did not seek work in 2012-13, and in fact has not sought any work since the accident. She felt that she could not work, but the objective evidence is that she could do so.

Now, after the passage of time, I find that she is not competitively employable and would only be so after a program of work hardening. I find that if she had returned to some kind of work, then this work would have served the same purpose as work hardening and such a program would not now be needed. [ 93 ] The Plaintiff’s failure to seek work constituted a failure to mitigate on her behalf. [ 94 ] In Morgan Estate v.

Newfoundland , 2007 NLCA 39 , the Court of Appeal described the application of principles of mitigation in a personal injury case as follows: [46] A plaintiff has what is commonly, though perhaps inaccurately, referred to as a “duty to mitigate.” Underlying that “duty” is the principle that a plaintiff cannot recover damages which could have been avoided by taking reasonable steps. It is, of course, for a plaintiff to prove his or her damages. However, if a defendant alleges that a plaintiff could have mitigated his or her loss, the burden of proof, on a balance of probabilities, is on that defendant ( Janiak ).

Whether a failure to take a particular course of action is unreasonable (and therefore a failure to mitigate) is a question of fact. [47] If there is a failure to mitigate, a plaintiff is not deprived of all damages. Rather, damages are assessed taking into account the possibility that the loss would not have been avoided or reduced, even if the reasonable steps had been taken. In this case, for example, if it were determined that Mrs.

Driscoll failed to mitigate by failing to return to work, damages would not be based on her having returned to work but they would be discounted to reflect the chance that she could have returned to work. In Janiak , where there was a 70% chance of a success if the plaintiff would undergo an operation which, if successful would result in 100% recovery for the plaintiff, he was entitled to 30% of his damages when he unreasonably refused to undergo the surgery. [ 95 ] The fairest manner in which to deal with this issue is as follows.

I have considered the earnings which may have been available to the Plaintiff had she pursued part-time work. However, I have reduced her claim for past lost earning capacity not by a resulting dollar-for-dollar reduction but by a global percentage to account for her failure to have even tried to work, and the possibility that she could have done so successfully.

I have assessed her future earning capacity by accounting for the earning capacity that she should now have if she had returned to work. [ 96 ] Whether there were, and are, jobs of a nature suitable for the Plaintiff available in the geographic area where she lives is a question material to the value of the Plaintiff’s residual earning capacity, and not probative of whether she did or did not have such capacity. In respect of the value of residual earning capacity, I prefer the evidence of the vocational consultant, Mr.

Prior, based as it was on independent data, over the anecdotal evidence of the Plaintiff that there are no jobs available in her area, especially as the

Plaintiff has, by her own admission, not looked for work. The opinion of Ms. Simmons that the effect of having to drive long distances for work diminishes the Plaintiff’s residual earning capacity was similarly based on anecdotal evidence, which I reject in favour of the approach taken by Mr. Prior. [ 97 ] Finally, in respect of the effect of the Plaintiff’s injuries, I find that she has lost housekeeping capacity because of her injuries. In particular, she has lost the capacity to perform heavier housekeeping tasks. She can do day-to-day light housework.

She has not paid anyone to replace her participation in the household, but has relied on family members, and most especially her husband, to replace her lost capacity. I find that the Plaintiff should be awarded compensation for this loss by a global assessment rather than on an actuarial approach. In assessing the amount due to Plaintiff, I will have regard to the fact that she and her husband are now alone in their house as their adult children have moved away from home.

This reduces the extent of housekeeping tasks that must be performed in her household. [ 98 ] The Plaintiff’s medical advisors supported several modalities of ongoing treatment. First, they all supported her attendance as soon as possible at a comprehensive pain management or work hardening program. Second, the evidence supports ongoing xylocaine injections, but these costs are currently covered by the Province’s Medical Care Plan (MCP). Third, there is evidence supporting occasional future physiotherapy intervention to assist with flare-ups.

The evidence from the professionals regarding future massage therapy is divided. On one hand, Drs. Heitzner and Kleinman are of the opinion that passive therapy such as massage, while perhaps making the Plaintiff feel better, will not be therapeutic in the sense of facilitating further recovery. On the other, Dr. Chaytor supports such therapy if it makes the patient feel better. I preferred the evidence of Drs. Heitzner and Kleinman. Massage therapy may be beneficial to the Plaintiff’s well-being but it is not medically necessary and was not demonstrated to likely result in further functional improvement. Dr.

Chaytor and Dr. Brannan also supported acupuncture as a modality that can help with function. [ 99 ] With the background of those findings, I move now to assessment of damages. General Damages for Pain and Suffering [ 100 ] An award of general damages for pain and suffering is intended to provide solace to a Plaintiff by providing opportunity to replace aspects of life lost to injury that are otherwise uncompensated.

General damages in particular cases should be based on the facts of those cases, but comparison to cases determined to be similar in terms of the injuries suffered in the accident and the impact of those injuries on the injured Plaintiff, is helpful. In Gosse v. CBS Taxi Ltd. , 2000 NFCA 16 , the Court of Appeal noted with approval that the range of non-pecuniary damages in chronic pain cases in this jurisdiction was between $20,000 and $80,000.

Allowing for the passage of time since that decision and giving some consideration to the erosion of value of money over that time, later cases in this Court have generally accorded with that expression of appropriate range. [ 101 ] In comparative terms, I have found two recent decisions of this Court of most assistance in setting compensation for this Plaintiff. [ 102 ] Gordon v. Sexton , 2013 NLTD(G) 127, is a case which provides a good comparator to this case in respect of the effect of the Plaintiff’s injuries.

In that case, Justice Handrigan, although he rejected the Plaintiff’s evidence in respect of some aspects of his claim, made the following findings regarding the impact of the injuries on the Plaintiff’s life: 101 Mr. Gordon suffered a lot in the decade since the accident. He had just turned 42 when the accident happened and he is now 53 years old. He is left with chronic myofascial pain; occipital neuralgia; a grade II whiplash associated disorder; and lingering symptoms of depression that Dr. Maritz says met the criteria for a major depressive disorder. Mr.

Gordon resorted to a host of therapies to deal with the pain, including medication, both over-the-counter and prescribed; physiotherapy; chiropractic; acupuncture; massage; TENS; and the nerve block injections that Dr. Flynn administers periodically at his Pain Management Clinic. 102 I discussed how his injuries affect all aspects of Mr. Gordon's life when I set out the background to his claim earlier in these reasons and will not repeat it here. Suffice it to say, as his counsel did in his Final Argument Brief, that "[t]his injury has wrought a profound change in every aspect of Mr.

Gordon's life, from interpersonal relationships with his family, friends and partner to his ability to love, work, play, exercise, relax, sleep, and...move forward in his life" . Mr. Gordon is entitled to compensation for what he has lost. [ 103 ] Justice Handrigan awarded Mr. Gordon the amount of $75,000 as general, non-pecuniary damages for pain and suffering. The accident in that case occurred prior to the statutory deductible applicable to non-pecuniary damages adopted in amendments to the Automobile Insurance Act , R.S.N.L. 1990, c.

A-22 and, therefore, the deductible did not apply. [ 104 ] In another recent case decided by Justice Handrigan, Ryan v. Curlew , 2018 NLSC 72 , he awarded the amount of $90,000 to a plaintiff who, although her injuries were found not nearly as debilitating as the plaintiff claimed, to include Post-Traumatic Stress Disorder (PTSD), generalized anxiety, depression and chronic pain. The award of $90,000 included reduction of 10% for failure to mitigate, as Justice Handrigan found that the plaintiff would have felt better and reduced the impact of her injuries overall if she had taken steps advised to her.

The injuries suffered by the plaintiff in that case, even after allowing for the plaintiff’s skewed perceptions of impact, were more significant than those suffered by the Plaintiff in this case. Further, the plaintiff in Ryan was only 27 years old at the time of trial and therefore her general damages compensated her for a longer period of suffering than the Plaintiff in this case will experience. [ 105 ] I assess the Plaintiff’s non-pecuniary damages claim at $72,500, net of statutory deductible.

Cost of Future Care [ 106 ] The principles applicable to assessment of damages for cost of future care were summarized by the Court of Appeal in Morgan Estate , at paragraphs 56 and 57 : 1) General Principles

Damages for cost of future care are a matter of prediction. No one knows the future. Yet the rule that damages must be assessed once and for all at the time of trial (subject to modification on appeal) requires courts to peer into the future and fix the damages for future care as best they can. In doing so, courts rely on the evidence as to what care is likely to be in the injured person's best interest. Then they calculate the present cost of providing that care and may make an adjustment for the contingency that the future may differ from what the evidence at trial indicates. Krangle (Guardian ad litem of) v.

Brisco , 2002 SCC 9 , [2002] 1 S.C.R. 205 (S.C.C.) , para. 21 . There must be medical justification for claims for cost of future care and claims must be reasonable ( Milina v. Bartsch ). An award for future care must be moderate and fair to both parties ( Andrews v. Grand & Toy Alberta Ltd. ). Fairness to the defendant is achieved by assuring that the claims raised against him are legitimate and justifiable ( Andrews v. Grand & Toy Alberta Ltd. ). [ 107 ] The Plaintiff presented evidence from Jessie Shaw Gmeiner, an actuary, to quantify her pecuniary losses. Ms.

Gmeiner was not asked to calculate past care costs. In respect of the cost of future care, Ms. Gmeiner’s opinion was that the present value of the Plaintiff’s future care costs is approximately $135, 763, including a gross up for income tax. The Plaintiff claimed this amount. Ms. Gmeiner noted that she had not been provided with a future care plan but her opinion was based on two presumed types of care: massage therapy and prescription medication. As to the first, I find that the cost of massage therapy has not been demonstrated to be medically necessary. Regarding the cost of medications, although Ms.

Gmeiner’s report was written in 2018, she based her estimate of prescription medication costs on the amount spent by the Plaintiff from January, 2013 to May, 2014, from which Ms. Gmeiner calculated an annualized cost of $3279. The only pharmacy receipts introduced into evidence related to prescription medications paid for by the Plaintiff between December 2010 and May 2014, a period of about 3.5 years. The Plaintiff paid approximately $7000 for prescription medications during that period, which works out to an annual cost of about $2000.

There appears from the pharmacy receipts to have been insurance coverage for some of the medication costs, although the Plaintiff says she had no insurance. There is no way to determine if these medications were all related to treatment of injuries suffered in the accident, although it does appear as

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