IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130328

Docket: M61290

Registry:
Nanaimo

Between:

Dylan
Gravelle, an infant,
by his Litigation Guardian, Sandi Gravelle

Plaintiff

And

Michael
Seargeant, John Beldham
and Amanda Green

Defendants

Before:
The Honourable Mr. Justice Kelleher

Reasons for Judgment

[1]            
Dylan Gravelle was injured in two motor vehicle accidents.  The first
occurred on April 25, 2008 and the second occurred on December 2, 2009.  The
accidents led to these proceedings.

[2]            
In the April 25, 2008, accident, the plaintiff was walking along the
gravel shoulder of Lantzville Road, in Lantzville, B.C.  The defendant, Michael
Seargeant was driving a Dodge Viper.  His vehicle struck Mr. Gravelle. 
The force of the impact threw the plaintiff between 15 and 30 feet.  Liability
is admitted.

[3]            
On December 2, 2009, Mr. Gravelle was driving a Jeep Cheroke.  He
was involved in a rear-end collision at the intersection of Ware Road and the
Island Highway in Nanaimo.  The vehicle that struck his vehicle was owned by
the defendant John Beldham and driven by the defendant Amanda Green.  These
defendants admit liability as well.

[4]            
In the first accident, the plaintiff sustained a fractured right femur. 
As well, he complains of injuries to his lower back, right groin and right
knee.

[5]            
The second accident resulted in upper back and neck pain.  These
symptoms resolved after three weeks to a month.  The injuries were
comparatively minor.

The Plaintiff

[6]            
Dylan Gravelle was 16 at the time of the first accident and is now 20. 
He is the youngest of four children.  His two brothers, Jesse and Austin, work
as drywallers and live in Whistler.  His sister Candy, the oldest child, is a
personal trainer and lives in Port Alberni.

[7]            
Dylan spent his early years in Ajax, Ontario.  In October 2004, the
family moved to Lantzville.  Dylan did Grade 7 in Lantzville and then attended
Dover Bay Secondary School for grades 8 – 12.  The plaintiff was in grade 10
when the accident occurred.

[8]            
The evidence establishes that before the accident, Dylan was not a
strong student.  Sandy Gravelle, his mother, testified that in his first
several years of school in Ajax, he had concentration problems.  She helped him
with school on a daily basis.  He had tutoring assistance for reading, math and
English.

[9]            
The difficulties persisted when the family moved to British Columbia. 
Dylan attended Kumon, an after-school tutoring program, for math and reading. 
He continued at Kumon when he began secondary school.

[10]        
Dylan’s evidence is that he did not enjoy school or homework.  Although
he rarely missed a class, he found the work difficult.

[11]        
Ms. Gravelle testified that he was an active and happy child but
quieter and less confident than his siblings.  He liked individual sports more
than team sports.

[12]        
Dylan enjoyed the outdoors.  As a child he went to summer camp and
enjoyed, swimming, wakeboarding, kayaking, canoeing and archery.  He is a
strong swimmer.

[13]        
He took up snowboarding at an early age and had a season’s pass at a ski
hill near his home in Ajax.

[14]        
When Dylan came to British Columbia, he was introduced to the ski hills
Whistler Blackcomb and Mt. Washington.  He became very proficient at
snowboarding.  He enjoyed snowboarding in powder, on groomed runs, in the trees
and in the terrain park.  He did jumps including 180 degree and 360 degree
turns..

[15]        
Dylan also enjoyed mountain biking.  The family lived close to biking
trails in Lantzville.  It was a frequent activity.  Dylan liked skateboarding
as well.  He played rugby in Grade 8 but gave it up in Grade 9 so he could get
a job and save money to buy a car.

[16]        
The plaintiff had part-time jobs before the accident.  He worked at
Superstore from April 2006 until March 2008.  He did various jobs including
price checking and serving as a courtesy clerk.

[17]        
In March 2008 he began working at the Bite Cafe.  This was a coffee shop
operated by his aunt and uncle.  He chose the job because he wanted to learn
cooking.  The job, however, was mostly dishwashing and busing.

The First Accident and its Aftermath

[18]        
Dylan testified that he was in severe pain in the moments following the
impact.  He did not lose consciousness.  In fact, he telephoned his mother from
where he was lying to tell her of the accident.

[19]        
An ambulance attended and transported him to Nanaimo Regional General
Hospital.  Surgery could not be performed that day, so his leg had to be
straightened to put it in a splint.  He testified this procedure was very
painful.

[20]        
The following day, Dr. Colbus Smith performed surgery on his right
femur.  Dr. Smith said he attempted the closed reduction method but that
was not possible.  The surgery resulted in the insertion of an intramedullary
nail and proximal locking screws.

[21]        
Dylan was in the hospital for eight days.  During that time, he was
medicated and slept a lot.  He was discharged with a wheelchair, crutches, and
a walker.

[22]        
When he was first discharged, a physiotherapist attended at his home every
day.  This evolved to attendances every two or three days.

[23]        
One month after the plaintiff’s discharge, he was referred to a
physiotherapist, Michael Wawrykow.  This involved both aquatic exercises and
work in the gym.

[24]        
Dylan did not return to school that term.  He was given some home
assignments but testified that he had difficulty concentrating.  The school
permitted him to progress to grade 11.

[25]        
In March 2009, Dr. Smith referred the plaintiff to the Long Lake
Physiotherapy Clinic for further treatment.  After the accident, he did not
work until September 1, 2009, when he began a part-time job at Moxie’s Grill. 
Again, he hoped to do some cooking.  He spent one year working there, until
September 1, 2010 (apart from three weeks he missed in December 2009 following
the second accident).  He worked 10 to 20 hours per week.  His job included
dishwashing.  He found that standing for more than 4 hours resulted in pain in
his groin and lower right side.

[26]        
Dylan completed Grades 11 and 12 as scheduled.  His courses were largely
non-academic including automotive mechanics.  He completed Grade 12 in June
2010.

[27]        
In September 2010, he returned to work at the Bite Cafe.  He stopped
working there in January 2011 when his family moved from Lantzville to Nanaimo.

[28]        
The plaintiff’s next job was at Byte Computer Camp.  He worked there
from March to June 2011.  This involved teaching elementary students to create
games with software.

[29]        
Mr. Gravelle decided to pursue a course in computer skills at
Vancouver Island University.  He applied in 2011 but learned that his mark in
English 12 was too low for admission to the program.  He redid English 12 and
achieved the necessary mark for admission.  Mr. Gravelle began the course
in September 2012.  The course includes some 12 hours of classes per week.  He
achieved a “B” mark in his mid-terms.

[30]        
Mr. Gravelle is also working part-time at Quality Foods.  This job
includes some baking.

[31]        
Mr. Gravelle has spent considerable time exercising at home and
attending at a gym.  This included one on one training at Core Essentials,
strengthening his right leg and his core.

[32]        
The plaintiff saw Dr. Smith again on January 5, 2012.  Dr. Smith
recorded these complaints:

1.              
snowboarding leads to groin pain by the end of the day;

2.              
bending down causes some pain in the lumbosacral junction on the right
side;

3.              
standing for periods of more than 4 hours results in groin pain;

4.              
walking for more than 1 kilometre causes similar pain.

The pain has remained the same since one year after the
injury.  It includes anterior groin pain and right posterior back pain.

[33]        
Dr. Smith expressed his prognosis in these terms:

In my opinion, Mr. Gravelle has not made a full recovery
from his collision related injuries.  His two medical problems (lower back pain
and right groin pain) will persist into the future.  There is a less than 50%
chance that removing either the proximal locking screws or the locking screws
and the intramedullary nail will alleviate his right groin pain.

His right lower lumbosacral back pain has persisted at the
same levels of intensity and frequency throughout the last three years and has
not improved despite adequate physiotherapy, rehabilitation and conditioning.

From assessing his functional capacity evaluation, it appears
that he remains chronically weak on his right side with inability to perform
activities to the same level as on his uninjured side.

After nearly four years of rehabilitation and reconditioning,
I have to accept that this will persist into the foreseeable future and has a
possibility of being aggravated by subsequent surgery like removing of the
intramedullary nail.

I, therefore, have to conclude
that both his injuries are permanent to such an extent that it can affect his
daily living, recreational and social activities, as well as his ability to
carry out housework and yard work.

[34]        
Dr. Smith is of the view that the femur fracture has healed well.

[35]        
The plaintiff’s description of his current symptoms is consistent with
what Dr. Smith’s recorded.  He said that standing for long periods of time
results in knee pain.  He experiences groin pain if he lifts his knee more than
90 degrees, climbing a ladder for example.  He says that swimming and treading
water leads to hip pain.

[36]        
Mr. Gravelle went snowboarding 2 weeks before the trial.  He said
he was less aggressive than before the accident and took more breaks.  All the
same, he said he felt pain during the day and was very stiff the following
day.

[37]        
The plaintiff has seen three orthopaedic surgeons: Dr. Smith, who
performed the surgery; Dr. Stanley Leete, who saw Mr. Gravelle at the
request of counsel for the plaintiff; and Dr. Alan Richardson, who
performed an independent medical examination at the defendant’s request.

[38]        
After consideration of the evidence of these physicians and the
plaintiff, I conclude that Mr. Gravelle suffered the following injuries in
the accident:

(a)      Right femur fracture

[39]        
There is no dispute that Mr. Gravelle suffered a comminuted
fracture (that is, broken in a number of pieces) in the accident.  The fracture
itself has healed well.

(b)      Soft tissue injury to the lower back

[40]        
Counsel for the plaintiff referred him to Dr. Leete. 
Dr. Leete concluded that the plaintiff had a leg length discrepancy and
this could lead to back pain.  He ultimately agreed in cross-examination that
the plaintiff had suffered no back injury in the accident.

[41]        
I do not accept that conclusion.  Dr. Leete saw him on one
occasion.  As Dr. Smith has noted, and as I observed, the plaintiff is not
always forthcoming regarding his symptoms.  This is an aspect of his stoicism.

[42]        
The plaintiff has testified that his back pain continues to be a
problem, especially after working a full shift at work.  Dr. Smith’s
opinion is that the accident caused a “lower back injury mostly to the
musculotendinous tissues of the right lumbar spine”.  Dr. Smith, after
all, saw the plaintiff on several occasions in the course of post-surgical
care.  He came to this conclusion:

Dylan’s lower back pain, although
not a “dangerous” type of condition, will persist into the indefinite future
with moderate disability associated, also influencing his recreational and
occupational endeavours to a moderate degree.

I accept and agree with this conclusion.

(c)      Knee pain

[43]        
Mr. Gravelle has intermittent knee pain.  He testified it bothers
him when running or biking on the stationary bike.

[44]        
Dr. Richardson concluded that the prognosis is “moderate to good”
as these symptoms are only intermittent.

[45]        
Paul Pakulak is an occupational therapist who performed a
functional capacity evaluation.  Mr. Pakulak stated that Mr. Gravelle
reported “occasional aching and burning pain in the right knee (a few times per
month) that usually comes on with more intense physical activity”.

(d)      Right groin injury

[46]        
Mr. Gravelle’s evidence is that the right groin pain is present all
the time and is aggravated by bending, standing, and walking when working at
the bakery in Quality Foods.  Dr. Smith in his January 17, 2012, report
states that the anterior groin pain persists.

[47]        
Mr. Gravelle said that he experiences more pain at the end of the
day he has had a long day of work, or participated in activity such as riding
the stationary bike, running, or snowboarding.

Non-Pecuniary Damages – First Accident

[48]        
The purpose of non-pecuniary damages is to ameliorate the condition of
the victim considering his particular situation.  It is essential to appreciate
the nature of the loss of the individual.  An award must meet the circumstances
of each case: Lindal v. Lindal [1981] 2 S.C.R. 629 at 637.

[49]        
In Stapley v. Hejslet, 2006 BCCA 34, the British Columbia Court
of Appeal reviewed the factors to be generally considered in awarding non-pecuniary
damages:

[46] The inexhaustive list of common factors cited in Boyd
v. Harris,[ 2004 BCCA 146] that influence an award of non-pecuniary
damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life.

I would add the following factors, although they may arguable
be subsumed in the above list:

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

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang v.
Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[50]        
The following is the application of these factors to the plaintiff:

(a)      Age
of the plaintiff:
Mr. Gravelle was 16 when the accident happened.  The evidence establishes
that he will likely suffer some measure of pain for the rest of his life.

(b)      Nature
of the injury:
Mr. Gravelle suffered a fractured right femur that required an open reduction
and insertion of an intramedullary nail and locking screws.  He also suffered
injuries to his low back, right groin and right knee, which remain a cause of
pain.

(c)      Severity
and duration of pain:
He was in severe pain for a short period of time.  He was required to take pain
medication for 4 – 6 months.  Four and a half years after the accident he
continues to suffer pain.

(d)      Disability:
The plaintiff was totally disabled for some six months, and continues to have
some measure of disability.

(e)      Emotional
suffering:
The plaintiff’s mother testified that the plaintiff was isolated and less
confident following the first collision.  He did not seek counselling for this.

(f)       Loss
and impairment of life:
Mr. Gravelle’s life was interrupted and altered by the first collision. 
He missed part of Grade 10.  His mobility was significantly restricted during
the summer.  He has permanent injuries and has some impairment of his ability
to perform physical labour and enjoy his former physical pursuits.

(g)      Impairment
of family, marital and social relationships:
Mr. Gravelle does not enjoy spending a lot of time with friends.  He was
somewhat like this before the accident as well.

(h)      Impairment
of physical and mental abilities:
He has a permanent impairment of his physical capabilities.  There is no
impairment of his mental abilities.

(i)       Loss
of Lifestyle:
Mr. Gravelle was unable to engage in snowboarding, an important part of
his life, for some time.  He has been able to return to it, but pain prevents
him from snowboarding in the same manner as before.

(j)       Stoicism:
Mr. Gravelle is somewhat stoic in his presentation.  The defendant agrees
that the plaintiff should not be penalized for this.

[51]        
I have reviewed several authorities, including those the parties
referred to in argument: Hildebrand v. Musseau, 2010 BCSC 1022; Meghji
v. Lee, 2011 BCSC 1108; Verse v. Chan, 2012 BCSC 876; Bouchard
v. Brown Bros. Motor Lease Canada Ltd.,  2012 BCCA 331; Hutchings v. Dow
et al, 2006 BCSC 629; Slocombe v. Wowchuk, 2009 BCSC 967; Cantin
v. Petersen; 2012 BCSC 549; Klassen v. AG Canada, 2004 BCSC 479; Taylor
v. Depew; 2012 BCSC 1403; and Nicoll v. The Owners of Strata Plan 1611;
2005 BCSC 770.

[52]        
Of course, each plaintiff’s circumstances are distinct.  Some of the
cases involve traumatic brain injuries.  Some involve depression.  Thankfully,
neither of those situations is present here.  Nonetheless, these cases read
together are instructive as to the range of damages awarded in analogous
cases.

[53]        
Having considered the plaintiff’s injuries and the factors listed above,
in light of the case law, I assess non-pecuniary damages at $85,000.

Non-Pecuniary Damages – Second Accident

[54]        
Mr. Gravelle’s evidence is that he experienced pain in his neck and
upper back for three to four weeks following the second accident.  He was off
work for three weeks.  He has no residual pain.

[55]        
These were minor soft tissue injuries divisible from those sustained in
the first accident.

[56]        
I assess non-pecuniary damages at $3,500.

Special Damages – First Accident

[57]        
The plaintiff and defendant are agreed that an award of $2,589.72 is
appropriate for special damages.  It is so awarded.

Past Wage Loss – First Accident

[58]        
The plaintiff claims a wage loss of $4,984.20.  This amount is based
upon his return to part-time employment on September 1, 2009.  The plaintiff
argues he should be awarded $2,527.20 for the period from the date of the
accident to December 31, 2008.  This is a period of just over six month (36
weeks x 7.5 hours/week x $9/hr x 1.04 for vacation pay).

[59]        
The claim for the period from January 1, 2009 until September 1, 2009 is
a further $2,457 (35 weeks with the same formula).

[60]        
The evidence does not establish that the plaintiff was disabled beyond
2008.  He was a full-time grade 11 student in the 2008-09 school year.  His
course work included Cooking 11 which required he work Monday to Friday in the
cafeteria.

[61]        
The plaintiff led no evidence, medical or otherwise, to substantiate
such an extended period of disability.

[62]        
I agree with defence submissions that an eight month disability period
is warranted.  I award wage loss of $2,527.20.

Past Wage Loss – Second Accident

[63]        
The parties agree that Mr. Gravelle lost three weeks of part-time
work, or 28.2 hours at $10 per hour.  There is no dispute that the plaintiff
was disabled from December 2 to December 23, 2009.  I award $282.

Diminished Earning Capacity – First Accident

[64]        
Mr. Justice Savage in Parker v. Lemmon, 2012 BCSC 27 at para. 42,
summarized Madam Justice Garson’s decision in Perren v. Lalari, 2010
BCCA 140, as follows:

(1)        A plaintiff must first prove there is a real and
substantial possibility of a future event leading to an income loss before the
Court will embark on an assessment of the loss;

(2)        A future or hypothetical possibility will be taken
into consideration as long as it is a real and substantial possibility and not
mere speculation;

(3)        A plaintiff may be able to prove that there is a
substantial possibility of a future income loss despite having returned to his
or her employment;

(4)        An inability to perform an occupation that is not
a realistic alternative occupation is not proof of a future loss;

(5)        It is not the loss of earnings but rather the loss
of earning capacity for which compensation must be made;

(6)        If the plaintiff discharges the burden of proof,
then there must be quantification of that loss;

(7)        Two available methods of quantifying the loss are
(a) an earnings approach or (b) a capital asset approach;

(8)        An earnings approach will be more useful when the
loss is more easily measurable;

(9)        The capital asset
approach will be more useful when the loss is not easily measurable.

[65]        
The evidence establishes the first hurdle in Perrin v. Lalari:
the plaintiff has established a real and substantial possibility of a future
event leading to an income loss.

[66]        
Dr. Richardson said this about future employment:

There is no absolute
contraindication for Mr. Gravelle to carry out whatever activities he desires,
as long as he can tolerate the symptoms of those activities.  However, Mr.
Gravelle most probably will want to restrict his activities to decrease his
symptomatology.  This would include most heavy, labour intensive work.  As
well, if impact activities increase symptomologies, he may want to avoid those.

[67]        
Paul Pakulak conducted a functional capacity evaluation in July 2011. 
His conclusions included these:

In my opinion, Mr. Gravelle demonstrated the physical capacity
to be employed on a full time basis at up to a modified medium level (with some
rare lifting at medium to modified heavy level provided it is not from the
floor) with limitations as noted above.  Below waist level work should be kept
to an occasional basis in order to limit right leg and back strain.

Thus it is also my opinion that
his overall capacity to compete for work in an open job market has been reduced
due to his ongoing limitations related to back and leg pain.  That is, the
overall number of jobs that he would be able to compete for is limited compared
to prior to his injuries.

[68]        
He also said:

In my opinion Mr. Gravelle
demonstrated the capacity for activity requiring modified medium level
strength.  He demonstrated the capacity for some aspects of full medium
strength activity but did not demonstrate this level of strength in all aspects
of lifting and carrying.  He demonstrated specific limitations related to
prolonged and repetitive below waist level work.  Given his response to testing
(significant increase in reported pain levels during the assessment and a
reduction in speed and capacity over the course of the assessment), I would
anticipate that prolonged activity above a modified medium level and/or without
provision for the above limitations will adversely impact his productivity and
safety.

[69]        
Mr. Pakulak said with respect to his employment at the Bite Cafe,
that it was significant that the plaintiff reported that the work there was not
as fast paced as it was at Moxie’s and there were more opportunities to sit
down over the course of the shifts.

[70]        
In assessing the future loss, it is important to note that
Mr. Gravelle is not academically inclined.

[71]        
Sandy Gravelle testified that tutoring was necessary for
Mr. Gravelle throughout his elementary and secondary school years.  John
Gravelle, Dylan’s father, testified that none of his children have gone to
university and it did not occur to him that Dylan would do so.

[72]        
Both before and after the accident, Mr. Gravelle has had little interest
in academic subjects.

[73]        
Derek Nordon performed a vocational evaluation, based on his interview
and testing of Mr. Gravelle and his review of Mr. Pakulak’s report.

[74]        
Mr. Nordon administered a number of tests measuring academic
achievement, aptitude, and vocational interests.  Mr. Nordon as well concluded
that Mr. Gravelle is not academically inclined and best suited to work for
positions where training occurs primarily on the job.  He felt Mr. Gravelle
would be able to cope with a short-term training program of one year’s
duration.

[75]        
Mr. Nordon concluded that a number of occupations were not available to
him: working in the pulp and paper or forest industry.

[76]        
Mr. Gravelle has expressed an interest in pursuing culinary studies. 
Mr. Nordon is concerned about the aggravation of symptoms with prolonged
standing.  This is a characteristic of culinary work.

[77]        
Mr. Nordon concluded that web design and animation for internet
applications was a worthwhile type of work to pursue.  That kind of work is not
unrelated to the studies in which Mr. Gravelle is currently enrolled.

[78]        
The difficulty with web design work is that much of it is part-time.

[79]        
It is particularly difficult to assess future loss of income in a case
like this.  Mr. Gravelle is a young man.  His interests could change. 
While cooking is seen by Mr. Nordon as unlikely because of the prolonged
standing required, there may be work options where breaks could be taken. 
Given Mr. Gravelle’s interest in cooking, one cannot rule out that type of work. 
It may well be, from Mr. Gravelle’s point of view, worth the trouble. 
Nonetheless, it is clear that higher paid labouring jobs are not likely
available to the plaintiff.  He has sustained a loss.

[80]        
Balancing all of the factors, it is reasonable to assess damages based
on a future loss of income to age 70.  Mr. Gravelle is certainly able to work
in a number of occupations.  Other occupations which are likely more lucrative
are foreclosed to him.

[81]        
My assessment of an appropriate award is $290,000.

Loss of Domestic Maintenance Capacity

[82]        
The plaintiff testified that several household chores which he performs
cause pain and therefore take longer to perform: cleaning the bathroom,
shovelling snow, mowing the lawn, gardening, vacuuming and doing dishes.

[83]        
While the plaintiff is presently living at home, that situation will not
be permanent.  When he lives on his own, he will have difficulty with heavier
aspects of yardwork and home maintenance.  Mr. Pakulak said in his
functional capacity evaluation that the amount of assistance would depend on
the size and layout of his home and yard.

[84]        
In the circumstances, a modest award is justified.  I award $10,000.

Cost of Future Care

[85]        
The plaintiff argues that an adult pass at the City of Nanaimo
Recreational Centre is necessary.  That pass will enable him to continue the
rehabilitation program designed for him by Mr. Goaks at Core Essentials.  I
assess the cost of future care at $10,000.

[86]        
To summarize, I award the following:

[87]        
Costs may be spoken to.

“S.F. Kelleher J.”
The Honourable Mr. Justice Kelleher