Hobbs v. Rozon

2022 BCSC 2178 Hobbs v. Rozon

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Hobbs v. Rozon, 2022 BCSC 2178 Date: 20221213 Docket: M-201265 Registry: Victoria Between: Tiara Nur Hobbs Plaintiff And Ronald Rozon, Penske Truck Leasing Canada Inc. / Location de Camions Penske Canada Inc. and Premium Brands Operating GP Inc. doing business as Premium Brands Operating LP Defendants Before: The Honourable Mr. Justice Edelmann Reasons for Judgment Counsel for the Plaintiff: D. D. McKnight B. Armbrust, Articled Student Counsel for the Defendants: D. Ryneveld, K.C. R. Fraser Place and Dates of Trial: Victoria, B.C. September 20-23, 2022 Place and Date of Judgment: Vancouver, B.C. December 13, 2022 Table of Contents I. Introduction.. 3 II. Injuries and Causation.. 3 A. Initial injuries. 4 1. Current situation and Prognosis. 6 III. Damages.. 7 A. Loss of Income Earning Capacity. 7 B. Non-Pecuniary Damages. 10 C. Failure to Mitigate. 11 D. Costs of Future Care. 12 E. Special Damages. 13 F. Summary. 13 IV. Costs.. 13 I. Introduction [1] This action arises out of a motor vehicle accident that occurred in Victoria, BC on April 5, 2018 (the "MVA"). The plaintiff Tiara Hobbs was driving a Toyota Echo when she was struck from behind by a delivery van driven by the defendant Ronald Rozon. The defendants accept that Mr. Rozon's negligence was the cause of the MVA and that Ms. Hobbs was injured as a result. The only issues

to be decided are the extent of the injuries caused by the MVA and the damages resulting from those injuries. II. Injuries and Causation [2] Ms. Hobbs has been an avid and accomplished athlete her entire life. Her father is a professional tennis coach and she was immersed in the sport as soon as she was able to walk and hold a tennis racquet. She played competitively throughout her youth, becoming a certified tennis coach herself in 2015. At the time of the MVA, Ms. Hobbs remained a very physically active 27 year old. In addition to tennis, her athletic interests included golf, volleyball, disc golf, pickleball, pool, and skiing. [3] In addition to Ms. Hobbs, I heard testimony from one of Ms. Hobbs' friends, one of her tennis students and her mother. They all described significant changes in Ms. Hobbs' behaviour, demeanour and physical capabilities following the MVA. [4] The parties presented expert evidence from three medical professionals: two physiatrists (Dr. Gillian Simonett and Dr. Paul Chapman) and a neurologist (Dr. Frank Kemble). Drs. Simonett and Chapman both testified at trial, but neither party sought to examine Dr. Kemble on his report. [5] Dr. Chapman's initial conclusions were substantially different from those of the other two medical experts. It became evident, however, that he erroneously understood that most of Ms. Hobbs' injuries were pre-existing

conditions. The error was based on his reading of an ICBC form which indicates that Ms. Hobbs had previously been treated for injuries very similar to those she suffered in the MVA. It is clear from the other evidence before me that the author of the form was listing the injuries and treatment following the MVA and there is no evidence of such injuries or treatment prior to the MVA. [6] Upon being presented with the proposition that his assumption about the pre‑existing conditions was in error, I find Dr. Chapman's response undermined any credibility he might have had as an expert. While he conceded the assumption would affect his conclusions on causation, his attempts to salvage the rest of his opinion made it evident he was advocating a particular conclusion rather than acting as a neutral party to assist the Court. I found his willingness to reconstruct the reasoning for his conclusions particularly troubling in the context of his later admission that he had not reviewed his notes or file in preparation for his testimony. It is beyond my understanding how an expert could purport to reconstruct an opinion once a key set of assumptions were removed from the equation without at least reviewing the file. I am not prepared to give any weight to the opinion of Dr. Chapman in the circumstances. [7] I found Dr. Simonett to be a straightforward and helpful witness who did not seek to

overstate her conclusions. On the most pertinent issues, her findings do not differ substantially from those of Dr. Kemble. I will address their conclusions as they relate to the relevant injuries below. A. Initial injuries [8] Various parts of Ms. Hobbs' body were injured in the MVA, the most persistent injuries of which have been an injury to her neck and related headaches. Prior to the MVA, Ms. Hobbs had no chronic musculoskeletal issues. The only headaches that she could recall suffering were during a brief period about three years prior to the MVA when she was working in a position that required her to look at a screen for many hours per day. The headaches had not recurred. [9] In addition to the neck injury, Ms. Hobbs suffered a right shoulder injury which resolved within a week or so after the MVA. Following the MVA, numbness in her right ring and pinkie fingers caused Ms. Hobbs to have a hard time gripping a tennis racquet. She was examined by a neurologist in July 2018, by which point the symptoms in her hand had become less severe. The issue ultimately resolved without the need for treatment. [10] Ms. Hobbs began to feel pain in her neck shortly after the MVA and it has persisted in some form since that time. Over time, the severity and frequency of the neck pain diminished, although it is aggravated by certain sporting activities. At the time of her meeting with Dr.

Kemble in March 2022, Ms. Hobbs described the neck as occurring intermittently at a severity of 2-3/10. [11] The more significant impact of the neck pain is that it triggers headaches. Both Drs. Kemble and Simonett found the symptoms described by Ms. Hobbs to be consistent with their experience of cervicogenic (neck-caused) headaches and Dr. Simonett found the symptoms consistent with cervical facet joint syndrome. I find, based on their evidence, that both the neck injury and the resulting headaches were likely caused by the MVA. [12] In addition to the cervicogenic headaches which were more frequent, Ms. Hobbs also began to suffer from quite severe migraines after the MVA. Although they now only occur once every couple of months, in 2019 one migraine was severe enough for Ms. Hobbs to attend the emergency department at the local hospital. When having a migraine, Ms. Hobbs also suffers from sensitivity to light and sound as well as changes to her vision. [13] Both Drs. Kemble and Simonett conclude that Ms. Hobbs likely suffered a mild traumatic brain injury. I accept their assessment on the evidence before me, which is consistent with the findings of both doctors. Although she does not appear to have struck her head in the MVA, Ms. Hobbs described being in shock after the collision. The friend who picked her up at the scene says Ms. Hobbs appeared "dazed" and was repeating

herself. Ms. Hobbs struggled considerably in the first year following the subject accident, with what she described as "fogginess" and difficulty concentrating, particularly in an active environment. She had difficulty with word-finding, including trying to say the word "string" when she pointed to one on her tennis racquet. When she returned to the tennis court, she had difficulty tracking tennis balls while playing and instructing. Her eyes got tired, especially with faster paced hitting. Following the MVA, she also suffered from dizziness and nausea at times, in particular when suffering from a migraine. Her memory was also affected. Ms. Hobbs told Dr. Kemble that the initial cognitive impairment subsided over the course of the two years following the MVA and that she now feels cognitively "normal". [14] Following the MVA, Ms. Hobbs reports initial changes to her emotions including easily crying. Dr. Simonett notes that increased emotions can be associated with concussion, although she defers to a mental health expert for formal assessment. Prior to the MVA, Ms. Hobbs was attending counselling for ongoing anxiety and depression related to a recent breakup. Following the MVA, Ms. Hobbs says the nature of her depression and anxiety changed as a result of her injuries. She stopped attending counselling in May 2019, and the issues around depression and anxiety appear to have

largely resolved. [15] In the months following the MVA, Ms. Hobbs found her sleep patterns significantly changed. Whereas she previously suffered from insomnia and needed 1.5‑2 hours to fall asleep, after the MVA she would fall asleep almost immediately and would sometimes sleep all day. This lasted for a period after the MVA, but by August, 2018, her sleep had returned to normal. [16] Ms. Hobbs was prescribed glasses by an optometrist following the MVA because she was having issues with her eyes when she suffered headaches. She continues to wear glasses when she has headaches or while driving at night.

1. Current situation and Prognosis [17] At the time of trial, Ms. Hobbs continued to suffer from intermittent neck pain and cervicogenic headaches as well as occasional migraines and changes to her vision. Dr. Simonett does not directly offer a prognosis, but notes that poor prognosis factors include the duration of the pain, evidence of cervical facet joint syndrome and the risk of ongoing aggravation due to the nature of Ms. Hobbs' work and recreational activities. [18] Dr. Kemble is more optimistic, noting that there are a number of outstanding treatment options for the more severe headaches. He suggests a trial of one or more of the different triptan medications or alternatively a course of Botox injections. Dr. Simonett made similar recommendations but noted it is too early to determine if Ms. Hobbs will positively respond and, if so, how long the effects will last. III. Damages [19] The plaintiff seeks damages under a number of headings, including past loss of income, loss of income earning capacity, non-pecuniary damages and special damages. I will address each of the heads of damages in the following sections. A. Loss of Income Earning Capacity [20] The principles applicable to a claim of past lost earning capacity are the same as the principles applicable to a claim of future lost earning capacity: Grewal v. Naumann, 2017 BCCA 158 [Grewal] at para. 46, citing Smith v. Knudsen, 2004 BCCA 613 at para.

29. The plaintiff must establish (i) impairment of earning capacity, and (ii) a real and substantial possibility of an event resulting in a loss: Grewal at para. 48. [21] While in many cases the actual lost income will be the most reliable measure of the loss, it is not the actual lost income but the lost capacity which is compensable (see Ibbitson v. Cooper, 2012 BCCA 249 at para. 19). That being said, compensation for past loss of earning capacity is to be based on what the plaintiff would have, not could have, earned but for the injury that was sustained: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; M.B. v. British Columbia, 2003 SCC 53 at para. 49. [22] The burden of proof of actual past events is a balance of probabilities. An assessment of loss of both past and future earning capacity involves consideration of hypothetical events. The plaintiff is not required to prove these hypothetical events on a balance of probabilities. The future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27; Morlan v. Barrett, 2012 BCCA 66 at para.

38. The Court of Appeal recently set out a three-part step process to assess damages for future loss of earning capacity (Rab v. Prescott, 2021 BCCA 345): (1) Does the evidence disclose a potential future event that could give rise to a loss of capacity? (2) Is there a real and substantial possibility that the future event will cause a pecuniary loss to the plaintiff? and (3) What is the value of that possible future loss, given the relative likelihood of it occurring? [23] After graduating from high school, Ms. Hobbs obtained a Diploma in Business Management and was one of the top students in the Professional Golf Management Program at Camosun College. In 2015, she became a certified tennis instructor and was more recently certified at the Club Pro 1 level through Tennis Canada. [24] At the time of the MVA, Ms. Hobbs was a self-employed tennis instructor who gave lessons at the Oak Bay Recreation Centre and Brentwood College. She worked at those venues for an average of 20 hours and 10 hours per week, respectively, and was paid $20 per hour for group lessons and $30 per hour for private lessons at the Oak Bay. For her services at Brentwood, she received an annual salary of $7,500, an amount that increased in the years that followed, reaching its current level of $35,000 this past summer. [25] Ms. Hobbs seeks almost $48,000 in past loss of income, largely relying on a series of

timesheets from Oak Bay to show that her income was reduced as a result of the MVA. However, as pointed out by the defendants, there are a number of other explanations for the various changes in the hours Ms. Hobbs worked at Oak Bay. In particular, over the course of the relevant years, Ms. Hobbs was taking on greater responsibility at Brentwood, ultimately taking on a full time position as the head tennis coach. I find that many of the other variations in the Oak Bay timesheets are explained by other factors, such as travel and the Covid pandemic. Overall, Ms. Hobbs' income increased each year and more than doubled between 2016 and 2021. [26] Ms. Hobbs argues that but for the injuries from the MVA she would be working 50 or even 55 hours per week and her income would be even higher. The problem with this submission is that she does not appear to have been working 50, much less 55 hours per week in the years prior to the MVA, nor does it appear that she aspired to that level of work. To the contrary, it appears to be a priority for Ms. Hobbs to have time and energy for her athletic pursuits. For example, in her testimony she described not pushing herself too hard physically during tennis lessons because she was saving herself for volleyball. This is in no way meant to be a criticism of Ms. Hobbs who is by all measures an accomplished athlete and has found herself more

physically limited following the MVA. [27] While I do not accept the scope of the losses put forward by Ms. Hobbs, I do accept that her injuries have made her less capable of taking on the number of private lessons or other paying engagements she otherwise would have. This was evident, for example, in her attempt to cover lessons for her parents (who are both tennis coaches) when they went travelling. Lessons that would have been easy for her cover prior to the MVA quickly rendered her physically exhausted. [28] The defendants agree that there was a direct loss of $4,063.95 at Oak Bay during the month or so Ms. Hobbs was off work immediately following the MVA. I find that but for her injuries she would have taken on at least some additional private lessons or other remunerative activities in the subsequent months and years. I find that an additional $15,000 provides an adequate approximation of the loss of income during the period leading up to trial. Over the course of four years, this represents an average of two or three private lessons a week. I am satisfied on the evidence before me that, but for her injuries, Ms. Hobbs would have given the equivalent of two or three additional lessons per week on average in the years following the MVA. I therefore award $19,063.95 in damages for past loss of income. Should the parties be unable to agree on the application of s. 98 of the

Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 they are at liberty to make further submissions on that issue. [29] Similar reasoning applies to Ms. Hobbs' losses for the future. In my view, there is a real and substantial possibility that Ms. Hobbs' limitations will continue into the foreseeable future. In my view, one year of her current income would provide an adequate approximation of the loss of future capacity to earn income as a result of the injuries. I agree with the defendants that the amount should be reduced by 50% given the relatively positive prognosis for her ultimate recovery. I therefore award $25,000 for loss of future earning capacity. B. Non-Pecuniary Damages [30] Non-pecuniary damages are awarded to compensate the plaintiff for pain, suffering, loss of enjoyment of life, and loss of amenities. The compensation awarded should be fair to all parties, and fairness is measured against awards made in comparable cases. Such cases, though helpful, serve only as a rough guide. Each case depends on its own unique facts: Trites v. Penner, 2010 BCSC 882 at paras. 188-189. Factors to be considered include the age of the plaintiff; nature of the injury; severity and duration of pain; impairment of physical, mental abilities as well as the impact on lifestyle and personal relationships (Stapley v. Hejslet, 2006 BCCA 34). [31] The plaintiff submits that the appropriate

range of non-pecuniary damages is $200,000 ‑ $270,000. Counsel pointed to a large number of cases, focussing in submissions on Dubitz v. Knoebel, 2019 BCSC 1706 [Dubitz] ($185,000); Dinnissen v. Lee, 2019 BCSC 1729 ($180,000); Dornan v. Stephens, 2019 BCSC 701 [Dornan] ($140,000); Mickelson v. Sodomsky, 2019 BCSC 806 ($200,000); and Sirna v. Smolinski, 2007 BCSC 967 ($200,000). I would reiterate the comments of other judges of this Court that presenting over a dozen comparator cases is generally not helpful in focussing the Court's attention, in particular when many of the cases presented have very limited similarity to the case before me. I do not find the cases presented by the plaintiff to reflect the nature of the injuries suffered by Ms. Hobbs. While I accept that there has been a significant impact in her life as a result of the MVA, I do not find that Ms. Hobbs is "completely different person" or a "broken person" as described in Dornan, nor is she the "shell of her former self" described by Marchand J. in Dubitz. [32] The defendants submit that $110,000 to $130,000 is an appropriate award under this head of damage, relying on the following authorities: D'Arcy v. Salimi, 2021 BCSC 551 [D'Arcy] ($125,000); Vespaziani v. Lau, 2021 BCSC 1361 [Vespaziani] ($135,000); Carson v. Ehman, 2019 BCSC 2120 ($85,000); and Lally v. He, 2016 BCSC 2187 ($67,500). [33] While no two cases

are identical, I find that the cases of D'Arcy and Vespaziani more closely approximate the situation before me. In both cases, active and relatively young plaintiffs suffered injuries similar to those of Ms. Hobbs. While the impact of the injuries in D'Arcy and Vespaziani were in some ways more severe, I also note that neither of plaintiffs in those cases were athletes at the level of Ms. Hobbs and the impact on her is therefore of a similar magnitude. I therefore find that an award of $130,000 for non-pecuniary damages is warranted in the circumstances. C. Failure to Mitigate [34] The defendants submit that the award for non-pecuniary damages should be reduced for failure to mitigate.The defendant must prove that the plaintiff acted unreasonably, and that reasonable conduct would have reduced or eliminated the loss. Whether the plaintiff acted reasonably is a factual question and it involves a consideration of all of the circumstances: Gilbert v. Bottle, 2011 BCSC 1389, at para. 202. [35] In August 2019, Ms. Hobbs was referred to a Dr. Bowler, who it would appear is a headache and pain management specialist for possible injection therapy. Ms. Hobbs testified that she believed a referral was made on her behalf but that she never heard anything further. I accept that she thought she would be contacted by Dr. Bowler's office once there was availability. It is clear that Ms. Hobbs

did pursue a number of treatment options, including physiotherapy, chiropractic treatments and various assessments. The defendants do not allege she was non‑compliant with recommendations made by the various treating professionals. While it might have been in Ms. Hobbs' interest to follow up on this referral, I do not find her expectation that she would be contacted to be unreasonable in the circumstances. I do not find the defendants have established a failure to mitigate. D. Costs of Future Care [36] The test for an award of future care is whether a reasonably-minded person of sufficient means would be ready to incur the expense (see Bystedt v. Hay, 2001 BCSC 1735, aff'd 2004 BCCA 124). The services and items must be justified as reasonable in the sense of being medically required or justified, and in the sense that the plaintiff will be likely to incur them based on the evidence. (Fontaine v. Van Kampen, 2013 BCSC 1702, paras. 155, 157; Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144, paras. 38 ‑ 39). [37] In addition to consulting a general medical practitioner soon after the MVA, Ms. Hobbs has worked on her rehabilitation with a variety of specialists, including in physiotherapy, kinesiology, massage therapy, occupational therapy, chiropractic medicine and clinical counselling. However, in recent years her engagement with treatment providers has been

significantly reduced, consisting largely of physiotherapy and chiropractic care. [38] The plaintiff seeks some $50,000 in costs of future care, based largely on the expenditures in past years and the therapies suggested by Drs. Kemble and Simonett. However, there are two problems with the plaintiff's submissions on this issue. First, it is clear that Ms. Hobbs no longer requires the level of treatment she required in the year or two following the MVA, so past expenditures do not provide a helpful measure of future care requirements. Secondly, in relation to the cost of the suggested therapies, it is not clear to me which of those therapies Ms. Hobbs intends to pursue, nor do I have any evidence of the cost of the therapies in question or whether they are covered by the provincial health plan. Ultimately, the onus is on the plaintiff to establish the cost of future care. I find that $5,000 is a reasonable approximation of the costs of future care that have been established on the evidence before me. In addition to chiropractic care and physiotherapy, this would include the ongoing cost of vision care and pain medication. E. Special Damages [39] The parties have agreed the total of special damages is $6,878.53. F. Summary [40] Damages are awarded as follows: · Past income loss (subject to deductions): $19,063.95; · Loss of future earning capacity: $25,000; · Future cost of care: $5,000 · Non-pecuniary damages: $130,000; and, · Special damages: $6,878.53. IV. Costs [41] If the parties are unable to agree on costs, they may arrange to make submissions on the matter within 30 days of the issuance of these reasons. "Edelmann, J."