Kremer v. Walker, 2010 NSSC 443

SUPREME COURT OF NOVA SCOTIA Citation: Kremer v. Walker, 2010 NSSC 443 Date: 20101130 Docket: Hfx.No. 298906 Registry: Halifax Between: Daniel Kremer Plaintiff v.

Tara Walker & Sharon Walker Defendants __________________________________________________________________ DECISION __________________________________________________________________ Judge: The Honourable Justice Kevin Coady Heard: November 1 - 4, 2010, in Halifax, Nova Scotia Decision: November 30 , 2010 Counsel: Peter Rumscheidt, for the plaintiff James Chipman, QC, for the defendants By the Court : Background: [ 1 ] Daniel Kremer is a fifty-one-year old plaintiff who was involved in a motor vehicle accident on July 21, 2007.

Sharon Walker was the owner of the second vehicle and Tara Walker was the operator of that vehicle at the time of the accident. [ 2 ] Mr. Kremer has a grade four education and no occupational training. He was raised in a troubled family and spent several years in a reform school. At the age of sixteen years he left home in Ontario and started driving tractor trailers in the United States. He continued driving trucks until he was twenty-five years old. Mr. Kremer then relocated to Holland where he obtained employment

fuelling aircraft at Amsterdam’s Schiphol Airport. At age thirty Mr. Kremer returned to Ontario and truck driving. [ 3 ] In March 1990 Mr. Kremer was sleeping in the bunk of his truck while a second operator drove. The vehicle struck a low bridge and as a result Mr. Kremer was thrown to the ground. He suffered injuries including a disc injury to his back. Mr. Kremer was covered by Workers Compensation who determined he was 45% disabled for life. The Ontario Workplace Safety and Insurance Board continues to pay Mr.

Kremer $1,091.52 per month for “future economical loss.” That benefit will continue until age sixty-five. [ 4 ] In 1994 Mr. Kremer and his then spouse started a small “Star Trek” merchandising business. He marketed his products in Ontario, Alberta and Holland. This was not a very profitable business and it ended in 1996. He then moved permanently to Alberta and opened a talent agency which lasted until 2000. In 2000 he moved to Grand Cache where he supported himself on social assistance until 2003. [ 5 ] In 2003 Mr. Kremer moved to Winnipeg with a view to starting a new life.

He obtained employment at a used furniture store earning $10.00 per hour in cash. In addition he worked as a pizza delivery man earning $10.00 per hour in cash. [ 6 ] Mr. Kremer moved to Dartmouth in 2007 also with the view of starting over. He rented a house and commenced work as a pizza delivery man. He testified that at the time of the July 21, 2007 accident he had worked between three and five weeks part-time and three to five weeks full time. He reported that he earned $10.00 per hour in cash, 50¢ per delivery and between $60.00 and $80.00 in daily tips.

The evidence is unclear as to the number of pizza delivered daily. [ 7 ] Mr. Kremer has not worked since the 2007 accident. He receives $140.00 per week in

Section B benefits. Since the accident his

Section B insurer has provided him with physiotherapy, aquatherapy, occupational assessments, functional ability assessments and the services of a nutritionist. [ 8 ] Mr. Kremer acknowledged to this court that he has not declared any employment income since 2000. His income tax documents indicate that his only declared income has been his workers’ compensation and social assistance benefits. Mr. Kremer realizes that his reporting of income has been fraudulent. The only explanation he offered to this court was “it spent so easily.” [ 9 ] Daniel Kremer has struggled with his weight all his life.

At the time of this trial he weighed approximately 450-500 pounds. He reported that when he moved to Grand Cache in 2000 he weighed 550 pounds and when he moved to Winnipeg in 2003 he had lost 260 pounds. He testified that at the time of this accident he weighed 280 pounds. During cross-examination he admitted that when his wife left him he weighed 612 pounds (early 2000'

s) and in the “mid nineties” he weighed 760 pounds. Obesity has been a serious health problem throughout Mr. Kremer’s life. [ 10 ] Mr. Kremer has lived with significant pain since the 1990 accident. The evidence suggests that the professionals involved in his pain management have relied on various narcotic medications. The unfortunate reality is that for many years he has been dependant on Percocet, Oxycocet and Oxycontin. The exhibits are replete with mention and concern about this dependancy. Mr.

Kremer also reports heavy usage saying the pills are required “to do work and to function around the house.” Obtaining these medications has required nothing more than a trip to his doctors. It appears that once a pattern of use was established, the provision of these narcotics was routine. Mr. Kremer reported that these medications contributed to a sedentary lifestyle and excessive appetite. [ 11 ] Mr. Kremer has suffered poor health most of his life. He weighed 220 pounds when he was 15 years old and that seems to have been his only health issue prior to the 1990 accident.

Low back pain has been a constant since that accident. When living in Winnipeg he reported pain in his knees, legs and back. He suffers from asthma as well as various skin ailments. He has experienced depression at times. Urinary tract infections and osteoarthritis have plagued him since 2006. It is a tribute to Mr. Kremer that he has been capable of maintaining a work history.

[ 12 ] On arriving in Dartmouth Mr. Kremer became the patient of Dr. Djemso Saric. He is the only physician who filed a medical report for the period Mr. Kremer lived in Nova Scotia. The report dated January 18, 2008 canvasses medical appointments both before and after the July 21, 2007 accident. At the first appointment on April 11, 2007 Mr. Kremer complained of “obesity and chronic back pain.” On May 9, 2007 “there was a follow up for knee and back pain” and “he also complained of foot pain and knee tendon pain.” On July 6, 2007 “he complained of skin lesions on the front part of the lower leg.” Dr.

Saric was not called as a witness in this trial. [ 13 ] Mr. Kremer attended Dr. Saric’ office four days after the accident complaining about “neck pain.” Subsequent appointments were related to neck pain and the filling of Oxycocet prescriptions. On October 17, 2007 he “complained of back pain and was referred to physiotherapy.” On November 9, 2007 he “complained of tenderness of the back area.” On December 7, 2007 and January 8, 2008 there were follow ups for back pain. Dr. Saric’s involvement with Mr. Kremer ended on the latter date. The only testimony about Mr.

Kremer’s injuries post the last appointment comes from Mr. Kremer. [ 14 ] Mr. Kremer’s case was further complicated by another motor vehicle accident on September 9, 2007. He ran a red light and collided with another vehicle. This accident was more serious than the 2007 accident in that the vehicles suffered substantial damage and required a tow truck to remove them. Mr. Kremer felt that this accident did not involve a “jarring” effect and that his health and injuries were “not any worse” as a result of the second accident. There was no medical evidence before this court to support Mr. Kremer’s position.

LIABILITY: [ 15 ] Mr. Kremer takes the position that the defendant driver caused the accident by pulling an illegal U-turn and, as such, is one 100 percent liable. The defendants do not accept any liability and argue that the accident occurred solely as a result of the dangerous and careless manner in which the plaintiff attempted to overtake the defendant vehicle. [ 16 ] Mr. Kremer testified that on July 21, 2007 at around 7:30pm he was driving his minivan north on Windmill Road in Dartmouth. He was alone in his vehicle and was wearing a 3-point seat belt.

It was rainy, dark and cloudy and he was driving within the speed limit. Windmill Road is a four-lane street divided by a grass median. There are no lines between the lanes and no parking at the side of the street. [ 17 ] Mr. Kremer stated that just prior to the accident he was following a grey Cavalier. He testified that the grey car pulled to its right as if it were pulling over to park. He stated that when the Cavalier came to a halt at the side of the street he started to pass it to the left. Mr.

Kremer testified that just as he started that manoeuver the defendant sped up and started to do a U-turn through the break in the median. He testified “she just popped right out in front of me” and “she took me by surprise.” The defendant vehicle hit the plaintiff vehicle on the right front corner with her left rear door. Damage to the vehicles was minimal and neither the police nor the ambulance was called. Both drivers appeared unhurt and, in time, drove their vehicles away from the scene. [ 18 ] The defendant Tara Walker was 20 years old at the time of this accident.

She and two friends drove to Halifax from Cape Breton to attend a concert. On the night of the concert the three left their friend’s Halifax home at 7:00pm and headed to Dartmouth. They were unfamiliar with the area and took their directions from google. Ms. Walker testified that she took a bridge to Dartmouth but shortly after she realized that she was travelling away from the concert site. She testified it was “dark grey out” and traffic was light. Ms. Walker testified she was in the north bound right lane travelling at 50 kilometers when she and her passengers realized they had missed the concert site.

She decided to “cut through the break in the median to go into the other side.” She stated that she then put on her left blinker, checked her rear view mirror and moved into the lane to her left. Shortly after starting that move she heard a bump. [ 19 ] On examination by the Court Ms. Walker stated that she felt U-turns were allowed in some circumstances and acknowledged that her manoeuver was a U-turn. [ 20 ] The position of the defendant relies on the Motor Vehicle Act and cases involving safe passing Joorisity v. McPherson (1992), 106 Sask. R.82; Smith v. Gosse (1970), 1 NFLD & P.E.I.R. 24 (C.A.).

I have reviewed these authorities and find they generally

apply to conventional passing situations. This is not a passing case. It is about an attempt to avoid a vehicle that pulls an unsafe manoeuver in front of a following vehicle. R. v. Lawless , 2001 NBPC 21; Hough v. Wyatt , 2010 BCSC 1375 . [ 21 ] After consideration of all the evidence and submissions, I make the following findings of fact. Mr. Kremer was operating his vehicle in a prudent and safe fashion. Ms. Walker was a relatively inexperienced driver and was unfamiliar with the area. She suddenly realized that she missed the concert site. It was a dark and rainy evening. Ms.

Walker pulled over to her right to give herself sufficient room to pull a U-turn through the break in the median. She did not adequately check to determine if other vehicles were in the area. Mr. Kremer assumed she was about to park and decided to pass her on the left. Ms. Walker, assuming no one was behind her, pulled in front of Mr. Kremer’s vehicle causing the collision. I find on these facts that Ms. Walker is 100% liable for this motor vehicle accident. CAUSATION: [ 22 ] The issue of causation in this action is complicated by a number of factors.

Those factors include (1) various ongoing health problems, (2) pre-existing injuries from the 1990 truck accident, (3) the effects of long term obesity on Mr. Kremer’s body, (4) the second motor vehicle accident in 2007 and (5) the lack of professional medical evidence and

(6) Mr. Kremer’s credibility. [ 23 ] It is well established that a plaintiff bears the burden of establishing causation. In this case Mr. Kremer must satisfy the court that the July 21, 2007-accident caused injury. He must do so on a balance of probabilities. [ 24 ] In Resurfice Corp. V. Hanke , 2007 SCC 7 the Supreme Court of Canada ruled that the “but for” test is the appropriate test for causation. McLaughlin, J. stated at paragraphs 20 through 25: 20 Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence.

It is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases. 21 First, the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred.

Having done this, contributory negligence may be apportioned, as permitted by statute. 22 This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati , at para.14, per Major J., “[t]he general, but not conclusive, test for causation is the ‘but for’ test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant.” Similarly, as I noted in Blackwater v.

Plint , at para.78, “[t]he rules of causation consider generally whether ‘but for’ the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities.” 23 The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v.

Farrell , at p.327, per Sopinka J. 24 However, in special circumstances, the law has recognized exceptions to the basic “but for” test, and applied a “material contribution” test. Broadly speaking, the cases in which the “material contribution” test is properly applied involve two requirements. 25 First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test. The impossibility must be due to factors that are outside of the plaintiff’s control; for example, current limits of scientific knowledge.

Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the “but for” test is not satisfied, because it would offend basic notions of fairness and justice to deny

liability by applying a “but for” approach. [ 25 ] The Supreme Court commented on this decision in Fullowka v. Pinkerton’s of Canada Ltd. , 2010 SCC 5 at paragraph 93 : I agree with the Court of Appeal that the trial judge applied the wrong legal test for causation. When he wrote his reasons in 2004, the trial judge did not have the advantage of this court’s judgment in Resurfice Corp. v. Hanke , 2007 SCC 7 .

That decision clarified the law of causation, holding that absent special circumstances, the plaintiff must establish on the balance of probabilities that the injury would not have occurred but for the negligence of the defendant: Hanke , at paras. 21-22 ; Athey v.

Leonati , 1996 CanLII 183 (SCC) , [1996] 3 S.C.R. 458 at para.14. [ 26 ] The “exceptional circumstances” approach was commented on at paragraph 95 of the Fullowka decision: The appellants submit in the alternative that this case falls into the class of exceptional situations discussed in Hanke in which the test for causation should be relaxed to the “material contribution” standard. I cannot accept this submission. As Hanke made clear, the sorts of special situations for which the material contribution test is reserved generally have two characteristics.

First, it is impossible for the plaintiff to prove that the defendant’s negligence caused the injury under the “but for” test, and second, it is clear that the defendant breached a duty of care owed to the plaintiff and thereby exposed the plaintiff to an unreasonable risk of injury of the type which the plaintiff ultimately suffered: Hanke , at para. 25 . [ 27 ] For these reasons this plaintiff must discharge his onus using the “but for” test. This case does not attract either exception. [ 28 ] The starting point for this analysis is the 1990 accident which resulted in a 45% lifetime disability.

Correspondence from the Ontario Workplace Safety and Insurance Board dated October 26, 2010 (Exhibit #2) indicates “the area of entitlement in your case is a low back strain.” Mr. Kremer testified that he was not able to work from 1990 to 1993. He acknowledged that he was quite obese during this period and required Oxycocet to control his back pain. Mr. Kremer testified that when he first lived in Holland he continued to experience low back pain. He stated that even after losing substantial weight in the late 1990's, he experienced good and bad days and required Oxycontin to control the pain. When Mr.

Kremer moved to Winnipeg in 2003, he continued to suffer “knees, legs and back” pain and continued using narcotic medications. When asked about his health when he moved to Dartmouth in 2007 he replied “good” but also acknowledged that he complained to his doctor about back and leg pain. On his first appointment with Dr. Saric on April 11, 2007 he was prescribed Percocet for back and leg pain. [ 29 ] The second point in this analysis is Mr. Kremer’s obesity. It is not possible to ignore the impact of his obesity on his overall health.

The evidence establishes that he has suffered with this condition since his teenage years. The evidence establishes that he has rarely succeeded in combatting his weight and in the mid 1990's weighed as much as 760 pounds. Obesity has always been a common theme throughout his medical history. It has stood in the way of treatment for other conditions. It continues as a major health issue to this day. [ 30 ] The third factor is the motor vehicle accident. The damage to the vehicles was minimal and the two drivers did not experience any immediate trauma.

Tara Walker described the accident as a “bump.” Her passenger Tiffany Johnston testified she “felt a little nudge” when the vehicles came into contact. In advancing these comments I recognize the case law that cautions judges against assuming minor accidents cause only minor injuries. However, on reviewing all the accident evidence, I find it difficult to conclude that this accident produced the kind of injury Mr. Kremer reports. [ 31 ] The fourth factor affecting causation relates to Mr. Kremer’s situation in the days and weeks following this accident. He did not require immediate medical attention.

He testified that over the next few days he experienced headaches and soreness. In relation to his back he stated that he “had not had that kind of severe pain since a while.” He first contacted his family doctor three days post accident when he complained about back pain. Mr. Kremer was referred to physiotherapy but was not committed to that treatment. He increased his intake of narcotic medication substantially. He gained 120 pounds in the six months following the accident. There is some evidence of occasional pizza deliveries after the accident which Mr. Kremer has described as heavy physical labour.

He admitted that at his last physiotherapy appointment, before the second accident, he was intending to return to work. [ 32 ] I am very well aware that the absence of major trauma in the days and weeks after an accident is not always determinative of long term injury. However, in Mr. Kremer’s case, I did not sense any significant change in his pre and post accident condition. Mr.

Kremer suggested in his evidence that he suffered a kind of neck and back injury that he had not experienced before the accident. [ 33 ] The fifth factor affecting causation is the second motor vehicle accident on September 9, 2007, some seven weeks after the first accident. Mr. Kremer was approaching a lighted intersection at 45-50 kilometres per hour when he ran a red light. Mr Kremer testified that this was not a jarring collision and, as such, his existing injuries were not aggravated. There was no real medical evidence relating to this accident.

Yet he reported attending at physiotherapy three times a week after September 9, 2007. One of his physicians recommended he use a cane. The physiotherapy notes of September 12, 2007 indicates that Mr. Kremer complained of lower back pain from this accident. It was also noted that he suffered an “aggravation of lower back pain from a motor vehicle accident dated September 8, 2007.” [ 34 ] The sixth factor affecting causation is Mr. Kremer’s credibility. While, I have a great deal of empathy for Mr. Kremer in his past and present life, I find that he suffered on the issue of credibility.

Obviously this observation started with Mr. Kremer’s intentional filing of inaccurate income tax returns for many years. I am well aware of the principles set forth in Bush v. Air Canada , 1992 CanLII 2566 (NS CA) , [1992] N.S.J. No. 17 and I can state that Mr. Kremer’s actions were much more fraudulent than those of Hazel Bush. It is my view that poverty drove Mr. Kremer to not declare his income and that is understood. Yet it speaks of an element of dishonesty. [ 35 ] I also found that Mr. Kremer was prone to answer questions with a view as to what would be the right answer for his case.

I am not suggesting that he actually lied, but I am satisfied that he formed his own view of his life story. It was obvious to me that Mr. Kremer has been his only real advocate in his lifetime of struggles and he was very much in that mode when he gave evidence. [ 36 ] Mr. Kremer’s credibility was also compromised when he was asked to explain why so many healthcare providers deserted him early in the programs. The aquasize trainer stopped seeing him after 2/3 months because of his lack of commitment and effort. Mr.

Kremer reported it was because “the lady was difficult” and there was a “clash of personalities.” The relationship with the dietician ended quickly because Mr. Kremer refused to compromise his eating regimen. He explained by stating “she said she could not work with me and that was the end of it.” Dr. Younger gave up on Mr. Kremer because of his lack of effort. He sees this as a misunderstanding leading to a desertion by this physician. [ 37 ] The seventh factor affecting causation is the lack of medical evidence that attributes an injury to the July 21, 2007-accident. The only physician to testify was Dr.

Colin Davey who was retained by Mr. Kremer’s

Section “B” insurer. There was no definitive evidence that this accident caused injury to Mr. Kremer. I would describe the medical evidence as similar to the following physiotherapy note found in the family doctor’s file: Your patient, Daniel Kremer began treatment here on July 31, 2007. . . . following initial examination, Dan presented with signs and symptoms consistent with soft tissue injuries to the neck, right upper shoulder and left shoulder.

As Dan reported no prior history of neck or shoulder problems prior to the accident it is conceivable that the symptoms he is reporting is due to the motor vehicle accident July 21, 2007. [ 38 ] The report from Dr. Saric, the family physician, does not specifically attribute injury to the July 21, 2007 accident. His notation’s post accident are really no different from the pre accident notations. [ 39 ] Dr. Younger provided a report dated April 23, 2008 which offered the following conclusions: Therefore, based on careful review of the notes available to me I reach these conclusions: 1) Mr.

Daniel Kremer was on Percocet and complaining of back pain prior to the accident of July 21 st , 2007. While the chart notes suggest he has complained of neck pain since the accident, there is insufficient evidence to convince me that symptoms of back pain worsened after the accident. 2) Mr. Kremer continues to be treated with Percocet for pain, but an ongoing issue at present is his obesity which, itself, will cause

back and neck pains. I feel that his symptoms could resolve, however, only if he loses significant weight. Furthermore, I feel that his obesity precludes him from any significant employment at the current time but that this is not related to his accident. [ 40 ] After Dr. Younger was provided with more history. He filed another report stating: “Based on re-examining the clinic notes and physiotherapy notes it seems possible that Mr. Kremer’s neck and arm pain may have occurred since his accident of July 21 st as there is no mention of neck or arm pain in the clinic notes that I have preceding July 21 st .

Please keep in mind, however, that my notes only extend back to 2007.” [ 41 ] The medical evidence, as a whole, does not establish that any of Mr. Kremer’s conditions came about as a result of the July 21, 2007 accident. When reviewed with the other six factors, I conclude that Mr. Kremer has not discharged the onus of proving causation on a balance of probabilities. THE CLAIM: [ 42 ] At the start of this trial the parties agreed that any personal injury suffered as a result of the July 21, 2007 accident fell within the legislative cap. The Plaintiff takes the position that Mr. Kremer should receive $2,500.00.

The Defendant takes the position that if there were any injuries caused by the accident, they fall below $2,500.00. In light of this court’s ruling on causation, Mr. Kremer is not entitled to general damages and I dismiss that aspect of his action. [ 43 ] The only other claim advanced by Mr. Kremer is for lost past earnings for the period July 21, 2007 and May 3, 2010. The end date reflects the date of Dr. Davey’s last report in which he determined that Mr. Kremer could return to work that is light and sedentary. [ 44 ] The following represents Mr. Kremer’s computation of past lost wages.

The period between the two dates is 145 weeks. In relation to tips he testified he would do thirty deliveries per shift and would receive $70.00 per shift ($70.00 x 6 x 145) for a total loss of $60,900. In relation to wages ($10.00 per hour) he testified that he worked six hours a day, six days a week for a total loss of $87,000 ($10.00 x 10hrs x 6 days x 145 weeks). He advances an additional claim for the 50¢ per delivery that he received from his employer which totals $13,050. After reducing the amount by 20% for taxes, deducting the

section “B” income, and reducing the claim by a further 20% for variations in business, Mr. Kremer seeks a payment of $86,768. In light of this court’s ruling on causation Mr. Kremer is not entitled to damages for lost past earnings. [ 45 ] I also find that if I am wrong on causation, Mr. Kremer has failed to establish this loss. He worked for cash only and no financial records were produced. He suffers from credibility problems as well. There is no corroborating evidence as to the number of deliveries each day, the amount received in tips or the payment of the 50¢ incentive.

There is no corroborating evidence as to the number of hours or days worked each week. Much of what Mr. Kremer claimed is based on previous employment for which he produces no records. [ 46 ] Mr. Kremers action is dismissed in its entirety. [ 47 ] I will hear the parties on costs should they not be able to agree. J.