White v. Hansen and ICBC Date:, 2012 BCPC 550

Citation: White v. Hansen and ICBC Date: 20120512 2012 BCPC 0550 File No: M1686 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: GARY JOHN WHITE CLAIMANT AND: MARVEL HANSEN DEFENDANT AND: INSURANCE CORPORATION OF BRITISH COLUMBIA THIRD PARTY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.E. ROUNTHWAITE Counsel for the Claimant: I. Fleming Counsel for the Defendant: M. Burger Place of Hearing: Powell River , B.C. Date of Hearing: May 15, 2012

Date of Judgment: May 17, 2012 [ 1 ] Gary John White is suing Marvel Hansen for damages for injuries he suffered in a motor vehicle accident that occurred when Mr. Hansen drove Mr. White’s pickup truck negligently in Nanaimo on November 7, 2008, and for loss of the truck. Mr. Hansen was served substitutionally with the Notice of Claim but did not file a Reply. Under s. 77(3) of the Insurance (Vehicle) Act, RSBC, 1996, c. 231 his insurer, the Insurance Corporation of British Columbia (“ICBC”), filed a Third Party Notice and has defended the lawsuit as if it were a defendant. [ 2 ] The parties agree that Mr.

Hansen was negligent and that $3500 is appropriate compensation for the loss of the truck. However, ICBC says that both Mr. White and Mr. Hansen were intoxicated and Mr. Watson contributed to his own injury by letting an intoxicated person drive his truck and by riding in the truck with an impaired driver. To establish contributory negligence, ICBC must prove on the balance of probabilities that Mr. White did not take reasonable care of himself in his own interest and that by this lack of care he contributed to his own injury. [ 3 ] The issues in this trial are as follows: 1.

What is an appropriate sum to compensate Mr. White for his pain and suffering? 2. Has ICBC established contributory negligence on Mr. White’s part? 3. If so, how should fault be apportioned between Mr. White and Mr. Hansen? 1. Damages for pain and suffering [ 4 ] Mr. White testified that after the collision he had a lot of pain in his left ribs, trouble breathing, his ankles were weak, and his feet were scratched. He was x-rayed in the emergency ward and released. When he saw Dr. Stephen Burns in Powell River six days later, Dr.

Burns saw bruising on his left upper abdomen, small abrasions on the sides of both ankles, generalized tenderness over his paracervical muscles and restricted cervical spine range of motion. The doctor prescribed anti-inflammatory medication and told Mr. White to continue his usual activities as pain permitted. On November 18, Mr. White saw a locum physician who prescribed sleeping pills for insomnia that Mr. White attributed to the accident. When Mr. White saw Dr. Burns on November 24, there was some tenderness over his ribs. He did not consult the doctor again about these injuries. [ 5 ] Dr.

Burns reported that Mr. White sustained significant anterior chest wall contusion, anterior abdominal wall contusion, abrasions over his ankles bilaterally and soft tissue strain injury to his cervical spine. He anticipated moderate symptoms of neck pain and discomfort limiting heavy physical work for three to six months with gradual improvement over the following three months. Mr. White testified that the doctor’s predictions were accurate.

He did not engage in his usual exercise of a little jogging, windsurfing, walking, and biking for six months but was “fairly much recovered by nine months.” [ 6 ] The evidence establishes that Mr. White suffered contusions, abrasions, and a moderate soft tissue injury as a result of the collision, with symptoms resolved within nine months. His lawyer argues that he should receive $12,000 for his injuries, like the plaintiff in De Leon v. Harold, 2010 BCSC 1802 . However, Ms.

De Leon was unable to work for four days after her accident and attended both a massage therapist and a chiropractor, each for eight to nine visits over a six-week period, to relieve her pain. Her pain appears to have been more severe than Mr. White’s. [ 7 ] ICBC’s lawyer argues that $8500 is an adequate sum to compensate Mr. White for his injuries, citing Heimdallson v. Heimdallson, 2008 BCSC 1436 I ($8500); Gradek v. Daimler Chrysler Financial Services Canada Inc. and Fletcher, 2009 BCSC 1572 ( $8000); Morrison v. Peng, 2010 BCSC 562 ($9000 for Morrison); Dolha v. Heft, 2011 BCSC 738 ($10,000); and Mohamadi v.

Tremblay, 2009 BCSC 898 ($10,000). In Heimdallson the plaintiff’s claims were found to be exaggerated and the only injury proven was exacerbation of a pre-existing back injury that restricted exercise for a month or two and was sporadically painful thereafter. The injury was treated with continuing chiropractic and exercise, and was resolved within a year. [ 8 ] While other cases provide guidance, each case must be decided on its own facts. After considering all these cases and the evidence about Mr. White’s injuries I find that $9000 is fair compensation for his pain and suffering. 2.

Contributory negligence [ 9 ] If Mr. White contributed to his own injuries his compensation will be reduced in proportion to his contribution. ICBC says Mr. White contributed to his injuries by letting an intoxicated man drive his truck and riding with him as a passenger. Mr. White testified he and Mr. Hansen were on a four or five day road trip and heading towards Courtenay from Victoria on the day of the collision. He maintains that neither he nor Mr. Hansen drank any alcohol that day, so Mr.

Hansen was sober. [ 10 ] A judge can never know all the facts but must decide cases on the basis of the admissible evidence presented in the courtroom during a trial. In order to determine what facts are proven by the evidence in this trial, I must assess all the evidence. I will begin by

explaining my assessment of Mr. White’s testimony, and then consider the testimony of the other witnesses. [ 11 ] Mr. White appeared honest in not exaggerating his injuries. For example, he didn’t try to claim that a back injury for which he visited a chiropractor in 2010 was related to the 2008 accident. However, I do not find his testimony about alcohol to be reliable or truthful for the following reasons. [ 12 ] First, Mr. White’s testimony changed from direct to cross-examination on several matters including when he and Mr.

Hansen left Victoria, whether they stopped on the way to Nanaimo, and how long he stayed in the hospital after the accident. [ 13 ] Second, Mr. White has only a sketchy recall of the events of November 7, 2008. His testimony was confused and contradictory about how he and Mr. Hansen spent the day. Although he first said they left Victoria in the late afternoon and stopped to change drivers when it was dark, in cross-examination Mr. White said they left in the morning, stopped while it was still light so Mr. Hansen could take the wheel, and didn’t stop after that.

Moreover, his evidence about location and timing does not make sense. There was evidence that the drive from Victoria to Nanaimo takes about 1½ hours and the collision occurred about 9:00 p.m. Although he said they got lost in Nanaimo, Mr. White conceded that they weren’t lost for the four hours there would have been between sunset and the collision if they’d changed drivers while it was light. When asked to explain the discrepancies in timing, Mr. White said they might have stopped for meals. Eating dinner wouldn’t occupy four hours, but drinking could. [ 14 ] Third, Mr.

White’s testimony that he didn’t drink any alcohol is contradicted by other independent evidence such as the following:

a) The evidence of Anne-Claire Fleming, then an emergency nurse in the Nanaimo hospital, that she noted in hospital records that Mr. White told her that he had consumed alcohol, and that she notes what people tell her. Ms. Fleming also noted that Mr. White was intoxicated, but I give less weight to this evidence because she can only describe her usual criteria for reaching that conclusion: smell of alcohol, staggering gait and slurred speech, and can’t recall her observations of Mr. White.

b) The evidence of Gregory Stortz, a witness to the collision, that Mr. White appeared intoxicated at the scene because he slurred his words, his speech was unfocused, his body seemed to move faster than his legs, his behavior was exaggerated and incoherent, he was unusually demanding of Mr. Stortz and ambulance attendants, and he stumbled or poured himself out of the truck and was very unsteady, although people in the cars that collided didn’t stumble out or act like that. He contrasted Mr. White’s behavior with that of the driver of the car struck by the truck, who he thought was in shock because she had a glazed look and “a stillness” about her.

c) The evidence of Darcy Nolan, a second witness to the collision, that Mr. White stumbled while getting out of the truck, and that his speech was slurred, a little sluggish, and stammering. [ 15 ] Fourth, Mr. White testified that Mr. Hansen didn’t drink any alcohol, unless it was while Mr. White was dozing or behind his back. He added that the latter is unlikely because he was watching Mr. Hansen. This testimony is contradicted by the following evidence:

a) The testimony of Cst. Kuehne, the police officer who investigated the collision, that Mr. Hansen exhibited the following symptoms of impairment by alcohol: slow speech, unsteady stance, stumbling while walking and a moderate odor of liquor on his breath; and that Mr. Hansen fell asleep in the back of the police car.

b) Mr. Hansen’s guilty plea to the criminal offence of failing to comply with a breath demand made pursuant to s. 254(3) of the Criminal Code . The court Record of Proceedings shows that Mr. Hansen was represented by a lawyer when he entered his plea. To make a breathalyzer demand under s. 254(3) an officer must have reasonable grounds to believe the person has committed the offence of impaired driving. A guilty plea is an admission of the essential elements of the charge, including that the demand was made pursuant to s. 254(3) .

I accept that people may plead guilty for various reasons, but in law the plea is an admission by Mr. Hansen that Cst. Kuehne’s breathalyzer demand was based on reasonable grounds to believe he had driven while impaired by alcohol, and this admission supports the officer’s testimony.

c) The evidence of Mr. Stortz that like Mr. White, Mr. Hansen was very unsteady and stumbled or poured himself out of the truck after the collision.

d) The evidence of Mr. Stortz that although the truck was travelling normally before the intersection except for being in the wrong lane, Mr. Hansen had a few seconds to observe the location of lights and realize his error while stopped at the red light, but failed to do so. When the light turned green Mr. Hansen did not move into the space Mr. Stortz left for him in the correct lane but drove towards the car facing him, only braking after the car braked.

e) The evidence of Darcy Nolan that the driver stumbled while getting out of the truck, and that while driving on the wrong side of theroad could be accidental, she’d have expected the driver to correct his error at the traffic lights when Mr. Stortz left room for the truck toenter the correct lane. Even if a sober person might have driven in the wrong lane, the failure to notice the error and correct it isindicative of impaired driving ability. [16] I have given no weight to the photograph of Mr. White’s truck, apparently taken on December 8, 2008, showing beer cans inthe truck box.

There is no evidence that beer cans were in the vehicle on November 7 and no evidence that they could not have been putin the truck box after the collision. [17] For all these reasons I am not able to accept Mr. White’s testimony that neither he nor Mr. Hansen drank alcohol, and that hedidn’t tell Ms. Fleming that he had. [18] Does other evidence prove ICBC’s allegation that both men were intoxicated to some degree before the collision? I find there issufficient evidence to prove on the balance of probabilities that Mr. Hansen’s ability to drive was impaired by alcohol. Cst.

Kuehne’sevidence was straightforward, and his testimony that Mr. Hansen’s breath smelled of alcohol, he had slurred speech, was unsteady, andstaggered was not shaken. Although Mr. Stortz and Ms. Nolan differed on some of the details of where vehicles were located, and Mr.Stortz had told an adjuster that he had driven beside the truck for 30 to 40 seconds but testified that it was only 7 seconds, they bothobserved symptoms of intoxication in Mr. Hansen. Moreover, Mr.

Hansen drove on the wrong side of the highway into on-coming trafficafter a stop at traffic lights where the presence of headlights and the absence of tail lights ahead of him should have made him realize hiserror. While it is possible that someone could drive in the wrong lane without being impaired and that the impact of a collision couldaffect speech and balance, the combination of Mr. Hansen’s driving with the symptoms observed by Cst Kuehne, Mr.

Stortz, and Ms.Nolan are sufficient to establish impairment of his ability to drive on the balance of probabilities. [19] There is also sufficient evidence to prove on the balance of probabilities that Mr. White was intoxicated to some degree. Iaccept that he told Nurse Fleming he had consumed alcohol. Mr. Stortz noticed that Mr. White stumbled out of the truck, slurred hiswords, had unfocused speech, unsteadiness, and exaggerated, incoherent, demanding behavior. He gave cogent reasons why he attributedMr. White’s symptoms to intoxication rather than to the effects of the collision. Ms. Nolan also said Mr.

White stumbled and had slurredspeech. She too explained clearly and rationally why she thought his symptoms indicated intoxication rather than being dazed by thecollision. [20] I therefore find the evidence in the trial proves that Mr. Hansen was intoxicated at around 9:00 p.m. and drove Mr. White’struck on the wrong side of the road when his ability to drive was impaired by alcohol. It also proves that Mr. White was intoxicated tosome degree at around 9:00 p.m. Are these facts sufficient to establish contributory negligence on Mr. White’s part? He testified that heand Mr. Hansen spent the day together.

Both men were intoxicated around 9:00 p.m. The only reasonable inference from these facts isthat they were drinking alcohol in each other’s company before 9:00, so Mr. White must have known Mr. Hansen was drinking alcohol. [21] At around 9:00 p.m. Mr. Hansen was displaying observable physical signs of impairment that would or should have led areasonable person to conclude that he would be at risk in riding as his passenger.

There is no evidence of when the men consumedalcohol, but shortly before the accident, in the Husky gas station parking lot for example, those signs would have been sufficient to alert areasonable person to the risk. [22] Mr. White knew Mr. Hansen had been drinking. He ought to have been aware of Mr. Hansen’s intoxication because of thesymptoms he exhibited. He ought to have concluded that he would be at risk in letting Mr. Hansen continue to drive the truck and incontinuing as his passenger. The evidence proves Mr.

White was intoxicated, but it doesn’t establish that he was so intoxicated he wasincapable of judging the situation and taking reasonable care for his own safety. By permitting Mr. Hansen to drive or continue to driveMr. White did not take reasonable care of himself. He contributed to his own injuries by this lack of care. [23] Applying the law set out in Shaw v. Storey, (BCCA), overruling Ondrik v. Goodwin (1986), 21 C.C.L.I. 47(B.C.C.A.), leave to appeal refused (24 November 1986), 20091 (S.C.C.) and Nance v. British Columbia Electric Railway Company Ltd., (UK JCPC), [1951] A.C. 601, and Nielson v.

Insurance Corporation of British Columbia, (BCCA), Iconclude that the evidence is sufficient to establish contributory negligence on Mr. White’s part. 3. Apportionment of fault [24] A passenger who rides with an impaired driver is commonly found to bear from 25% to 40% of the fault. I accept ICBC’ssubmission that Mr. White’s contributory negligence should be increased because he not only rode with an impaired driver, but hesupplied the vehicle. I therefore find him to be 35% responsible for his injuries, and his award will be reduced by that percentage. Conclusion [25] I assess Mr.

White’s general damages for pain and suffering at $9000, and award him the agreed sums of $3500 for his 1983Chev S 10 pickup truck, and $1456 for disbursements and tax, with the total award reduced by 35% for Mr. White’s contributorynegligence. A.E. Rounthwaite Provincial Court Judge