1993 S.H. No. 93-6240 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: LLOYD GIBBS, Plaintiff ‑and- CHERYL ARCHIBALD, Defendant DECISION HEARD: at Halifax, Nova Scotia before The Honourable Justice Walter E. Goodfellow on January 9, 10 and 11, 1995 Final medical report tendered by consent February 11, 1995 DECISION: February 22, 1995 COUNSEL: Ronald B. Mitton, Solicitor for the Plaintiff R. Malcolm MacLeod, Solicitor for the Defendant and Alain Begin, Articled Clerk GOODFELLOW. BACKGROUND Lloyd Gibbs, on Saturday, May 30, 1992 operated his motor vehicle west on Greenfield Road and stopped at the then stop line at 'T' intersection with Lower Harmony Road. His evidence is that he looked both ways and then entered Lower Harmony Road travelling south and saw motor vehicle, operated by Cheryl Archibald, travelling north on Old Harmony Road as she crested hill and came into view at point which measures approximately 125 meters from Greenfield Road. His first recollection of observing her was when he says he was completely established on the right side of the road in his own lane. Cheryl Archibald left her home shortly before the time of the accident. She was travelling north on Lower Harmony Road when she crested the hill at the approximately 125 meter mark from the Greenfield Road. She was travelling to pick up bridesmaid in preparation for attendance at wedding at p.m. Her evidence is that immediately after she crested the hill, she found the Gibs van facing her. She was not sure where it had come from, but that it was in her lane, and she thought it must be pulling off to driveway across her path and it still had its left signal light flashing. Ms. Archibald states that she took evasive action to try and go around the Gibs vehicle to her left when she says the Gibs vehicle moved into its lane. She slammed her brakes and tried to move back into her own lane, and the side, front driver's side of the Gibs motor vehicle and her front driver's side came into contact so that she was thrown sideways and the van ended up tipped over. Both motor vehicle operators were alone and wearing seat belts. Ms. Archibald suffered broken ankle necessitating surgery and the insertion of pins, and she has separate action outstanding in relation to her injuries. Mr. Gibbs was taken by ambulance to hospital, and medical evidence indicates he suffered a concussion, hearing loss in his left ear, neck injury, injury to his lower back and injury to his knee which hit the dashboard. There is agreement that it was beautiful day and the accident occurred at approximately a.m. with no interference in visibility, clear, bright, sunny day with no precipitation. 2. MOTOR VEHICLE ACT s. 100(1): "Duty to drive carefully 100 (1) Every person driving or operating motor vehicle on highway or any place ordinarily accessible to the public shall drive or operate the same in careful and prudent manner having regard to all the circumstances." s.101: "Careful and prudent speed 101 person operating or driving vehicle on highway shall operate or drive the same at careful and prudent rate of speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of all other conditions at the time existing, and person shall not operate or drive vehicle upon highway at such speed or in such manner as to endanger the life, limb or property of any person." s. 106(1): "General maximum speed 106 (1) Notwithstanding any other provision of this Act, but subject to subsection (2) and Section 109, no person shall drive motor vehicle at speed in excess of eighty kilometres per hour on any highway at any time." s. 110(1): "Duty to drive on right 110 (1) Upon all highways of sufficient width, except upon one‑way streets, the operator or driver of vehicle shall operate or drive the same upon the right half of the highway and shall drive slow‑moving vehicle as closely as possible to the right‑hand edge or curb of such highway, unless it is impracticable to travel on such side of the highway except when overtaking and passing another vehicle subject to the rules applicable in overtaking and passing set forth in Section 115." s. 118(1)(b): "Rules respecting intersection 118 (1) Wherever practicable the driver of vehicle intending to turn at an intersection shall do so as follows: (b) approach for left turn shall be made in the lane for traffic to the right of and nearest to the centre line of the highway and the left turn shall be made by passing to the right of the centre line where it enters the intersection, and upon leaving the intersection by passing to the right of the centre line of the highway then entered and when practicable by making the left turn in the portion of the intersection to the left of the centre of the intersection;" (1) Evidence Findings (a) Lloyd Gibbs Mr. Gibbs is a 46 year old married man. He and his wife have one child, 16 year old daughter who is mentally challenged and presently resides at the Nova Scotia Youth Training Centre. Mr. Gibbs is university graduate with some leadership ability who now occupies the position of Manager Petroleum Gas Fuel Licences for the Province of Nova Scotia in the Department of the Environment. He has, since the accident successfully been elected member of his local school board, and has made considerable public commitment in leadership position struggling to retain the Nova Scotia Youth Training Centre. Overall he impressed me as steady, conscientious person of integrity whose evidence found credible. Mr. Gibbs relates coming to stop at the Greenfield Road and then in the normal way proceeding to turn left. He became completely established on the right side of the Lower Harmony Road travelling south when he saw car crest the top of the hill, after which he noticed it begin to come left of centre to his side of the road and that this happened rather quickly. The Archibald vehicle came completely over into his side of the road, and he says they were facing directly head on. At the last second he whipped the wheel of his van to the right to try and avoid her, but was unable to do so, resulting in an impact head on and more to the left front of his van. He was apparently rendered unconscious and suffered injuries which will review in detail when address the matter of damages. (b) Cheryl Archibald Cheryl Archibald is an intelligent person with responsible position as credit advisor with the Farmer's Credit Corporation, and while do not question her integrity, her credibility in terms of accurate recall of her speed, attentions, distance and response, is questionable. In her evidence she stated that immediately as she crested the hill, she saw the van facing her, and she was not sure at that point where it came from. She assumed it must be pulling off to driveway, and she immediately decided to go around it. It is at this point she says the Gibbs van started to go across into its correct lane, and she slammed on her brakes and tried to move back into her own lane but skidded and came in collision with the Gibbs van. An important finding for the court to make is the point of impact between the two vehicles and Ms. Archibald says it occurred "side, front driver's side front and my front driver's side". She stated her speed was in the mid 70's, 75 to 80 and she gave somewhat of shrug when giving this evidence. Clearly she is guessing. She resorts to the almost time honoured exercise of indicating that she always travelled that stretch of road within the speed limit of 80 km/h and draws the conclusion that she was probably travelling within the speed limit on this occasion. She is very familiar with the area of the accident, and travelled it with frequency when she went to the Agricultural College in Truro, and in the past three years prior to the accident when she was in Prince Edward Island, she was home every second weekend and travelled the road with continual frequency. She was going to pick up friend to attend her best friend's wedding. She acknowledged that she did not see the Gibbs motor vehicle coming out of the intersection so that when she crested the hill, she is acknowledging that the Gibbs motor vehicle had already completed its turn into Lower Harmony Road and was proceeding southward, although with its left signal light still functioning. The distance from when she first observed the Gibbs van is 125 to 128 meters. She explains that there was some confusion in her mind as to what the Gibbs van was doing, and she thought it might be turning into laneway on her right hand side. This confusion arose at the instance of observation, and if she was going at the reduced speed she indicates, below the speed limit, reduced by her removal of her foot from the gas peddle, then it's extremely difficult to understand why she did not brake to control her vehicle unless, of course, she did not keep proper lookout and only observed the Gibbs motor vehicle at the last moment or more likely did not have anywhere near the amount of time that she says existed due to much higher rate of speed than she realized. Ms. Archibald gave statements, and her explanation as to the difference in her earlier statements with respect to speed is that they were given when she was on medication, however, the accident was May 30, 1992 and her statements were given June 10th and 11th, 1992. The surgery on her ankle was performed on May 30th or June 1st and she was released from hospital at that time. The statement in her own writing, June 11, 1992 says: was travelling at about 70 km/hr. along straight stretch and then began to slow down before the crest. always do this because know the area, and just beyond the crest you have the Greenfield Road on the right. When crested the hill, would say had slowed down to about 60 km/h. At that instant saw van facing me on my side of the road. assumed he had come from the Greenfield Road, and his left blinker was on. hit the brake, didn't know what he was planning on doing, so began to veer to the left." She went on to relate, in that statement, that the collision was left front to left front. In the statement given the 10th of June, 1992 she said: went about or miles and you are on straight stretch and then you crest small hill. Roughly 300 feet from the top of the hill is the Greenfield Road. This is intersection with the road was on. was travelling roughly 60 or 70 km per hour on the top of the hill because had slowed because know this is bad intersection. had been doing roughly 70 to 80km/h before the top of the hill. When came over the hill remember seeing the front of the van and his blinker on. He was on my side of the road. thought he might be pulling into the side of the road on my side. really wasn't sure what he was doing so went left. also hit my brakes." (c) Alan C. Golding Mr. Golding is the Director of Traffic Engineering for the Department of Transportation, and his letter of June 15, 1993 was entered by consent. The Department of Transportation conducted an investigation in late May, 1993 and made certain recommendations and conclusions, including: "3) Crossing sight distance measurements indicate that approximately seconds is required for vehicle to move from the stop location on the Greenfield Road approach to position fully occupying the correct (right hand) lane on the Lower Harmony leg of the intersection. Based on the prevailing speed limit of 80 km/h, an approaching vehicle would have approximately 5.6 seconds to react to vehicle entering the road; in effect, the crossing sight distance is more than adequate for the left turn manoeuvre from the Greenfield Road to the Lower Harmony leg of the intersection ..." (d) Avard Palmer Mr. Palmer is an experienced auto body repair person, and he purchased the Gibbs van for $2,300 in August, 1992. He noted the damage to the vehicle as shown in photographs taken at the salvage yard, and indicated the left hand skirt was damaged and shoved into the right and that it appeared to him the force was through the wheel. He described what was necessary to replace and repair the motor vehicle for its subsequent sale by him or weeks later. He acknowledged there was damage to the left front assembly light of the Gibbs van and to the hood. (e) Sgt. Geoffrey M. Tucker, R.C.M.P. Each side called an expert, both of whom possessed their own particular strengths. Mr. Gibbs called Sgt. Geoffrey Tucker of the R.C.M.P. who was qualified as an accident reconstructionist. He has taken the highest level courses available to R.C.M.P. officers in this field, and is member of the National Association to which accident reconstructionists belong. He has extremely wide experience with respect to the practical side of accidents in his many years of police service, predominantly in the highway traffic field. Overall, his approach to the reconstruction was done conservatively. His analysis based upon reviewing all of the police file, photographs, attending at the scene with the investigative Cst. and Mr. Gibbs, etc. included some experimentation on site particularly in relation to the angle at which the Gibbs van might be at the point of impact. He reviewed in detail, and his report is part of the record, various factors that are examined in accident reconstruction including the accident location, impact point, extent of damage to both vehicles, location of damage, final resting place of the vehicle, topography, particularly the unobstructed view, measurement and location of the skid marks and the direction, etc. f) Professor J. David Innis was impressed with the qualifications and professionalism of Professor Innis, who is also member of the National Association. He had certain material, including the discovery transcripts, not resorted to by Sgt. Tucker. On the other hand, he did not conduct any on‑site simulations or experiments. accept Professor Innis' advice that the drag slide to stop test conducted by Sgt. Tucker would not give you an accurate estimate as to the speed at the time of impact by taking straight mathematical deduction from the estimated speed. Sgt Tucker used the drag sled test to determine, in Sgt. Tucker's view, that if Ms. Archibald was going at the speed she indicated, he concluded the speed at impact would not cause anywhere near the extent of damage, and in his calculations Sgt. Tucker, as Professor Innis pointed out, used drag sled to stop test. You cannot use this test and simply deduct the speed at impact from the estimated speed as calculated by Sgt. Tucker. Professor Innis indicates substantial angle must have existed at the point of impact based upon his examination and interpretation of the material made available, including the photographs, and he concludes that the point of impact was on the left front wheel of the van consistent with substantial angle. In simple terms he draws the conclusion that at that angle, Mr. Gibbs must have been coming from Ms. Archibald's side of the road at the point of impact. He says this confirmed by the van's final location. He also draws conclusions that support the speed estimate advanced by Ms. Archibald, and he draws strength from Mr. Gibbs' statement that he had travelled up the hill and observed, for the first time, the Archibald vehicle at point which would not be consistent with theft combined speeds. Quite possibly Mr. Gibbs is out slightly in his conclusion as to when he first observed the Archibald motor vehicle, and it probably was at point closer to the completion of his turn. Nevertheless conclude that Gibbs, at the time of impact and immediately prior was travelling entirely within the south lane of the Lower Harmony Road, and just prior to impact sharply turned his wheel to the right in forlorn attempt to avoid the oncoming Archibald vehicle. Professor Innis noted the "Lower Harmony Road at the intersection is quite curved. In fact, the radius of the horizontal curve is in the order of 200 meters." The diagram provided shows that from the crest of the hill Ms. Archibald would be entering curve which is more pronounced at the intersection, but nevertheless she would likely have followed the natural tendency of going into the curve close to the centre line. The evidence of the parties is significant in respect to their view as to the point of impact, and it is much more of head‑on feature than is accounted for by Professor Innis and my conclusion on the physical evidence. Discovery evidence of Ms. Archibald tendered shows that when asked, "what part of the van did you hit?" she responded, "A. Driver's side front corner." "Q. Would you describe this as head‑on collision or how would you describe it? A. My, not direct, umm ... it depends on how you describe head‑on. A. Like full full force, no, it was my corn ... front driver corner and his .... Q. Yeh, your your your front driver's corner .... A. Yes. Q. And his front driver's corner. Q. So short of a, umm ... half half way over sort of thing. Yes." This is consistent with her evidence before me, and accept and prefer the evidence of Sgt. Tucker with respect to the interpretation to be placed upon the physical damage to the vehicles. Professor Innis put his weight substantially on photographs of the vehicles at the salvage yard, and there has been some appreciable change in the Archibald vehicle, particularly in the location of the front bumper which, quite probably incurred through its being towed to the salvage yard. In any event Sgt. Tucker pointed out that the left front tire of the van appears to be undamaged other than what appears to be one or two scrapes which may or may not have occurred in the accident, and there is almost no perceptible or identifiable damage to the rim or chrome hub cap. Sgt. Tucker was able to advise that on previous occasion. he accidentally dropped chrome hub cap similar to the one on the Archibald vehicle from waist‑high position and it shattered. It is inconceivable that the chrome hub cap would not have shown some signs of damage if the point of impact had been as suggested by Professor Innis. Nevertheless, all the photographs consistently show no damage to the chrome hub cap or wheel. Professor Innis' explanation that circular damage on the Archibald vehicle is where the Gibbs' van left front wheel stuck is not accepted. prefer the evidence of Sgt. Tucker, and my own assessment is that when the Archibald vehicle had its brakes locked and came into impact, it would have had the weight bringing the front end of the Archibald vehicle down, making it far less likely that the damage could be anywhere near as high as the impact point suggested by Professor Innis. With respect to the effect upon the van, there would have been, as Sgt. Tucker indicated, lifting force particularly given the higher relative speed of the Archibald vehicle. conclude that the point of impact was far more probable at the front of both vehicles. Such conclusion changes the angle upon which much of Professor Innis' conclusions are based. In addition the lifting effect gives some explanation to the final resting position of the van on its side, and my conclusion is reinforced by the practical simulations of Sgt. Tucker. Sgt. Tucker acknowledges that if Professor Innis' angle conclusion was accurate, it would have meant that Mr. Gibbs would have started his turn shortly before impact out of Ms. Archibald's lane, however, am satisfied from the evidence of Mr. Gibbs that he in fact was entirely within his own lane at the time of impact, and had been there from shortly after cutting, to at least the normal extent, the corner from the Greenfield Road into the southbound lane of the Lower Harmony Road. There is complete agreement that the point of impact between the vehicles is well within the southbound lane. consider that Sgt. Tucker, with his vast experience of attending at actual accident scenes, has given much preferred and more probable conclusion of the impact point on the vehicles from the inspection of the actual damage, and that his conclusion is consistent with the evidence of parties. On the balance of probabilities find that the impact occurred not only in Mr. Gibbs' southbound lane, but left front to left front, and that given the time available to her, Ms. Archibald was not driving at prudent rate of speed nor maintaining prudent lookout so that after cresting the hill, she ought to, in these circumstances, have been able to control her vehicle by driving at more prudent rate of speed and slowing down on visually sighting the Gibbs motor vehicle. Ms. Archibald was not justified entering the opposing lane of traffic solely because the Gibbs motor vehicle's left‑hand turn signal was still flashing when she first observed it in close proximity to the intersection. Ms. Archibald, on cresting the hill, had between 125 and 128 meters to the extension of the Greenfield Road at the intersection, and approximately 103 to 106 meters to the point of collision. Professor Innis indicated that the present design standard for sight distance to an intersection is 140 meters. Ms. Archibald was familiar with the limitations of sight caused by the hill, which are dramatically shown in the photographs, and there is further acknowledgment of the limitation of sight distance approaching the crest of the hill and she said "I was travelling at about 70 km/hr along the straight stretch, and then began to slow down before the crest. always do so because know the area and just beyond the crest you have the Greenfield Road on the right". Any driver approaching blind crest, such as this, must exercise reasonable, prudent level of care, and while Ms. Archibald may well have exercised such on past occasions, conclude that she failed to do so on May 30, 1992. Had she driven in prudent manner, she could have carried on at reduced speed in her own lane without coming in contact with the Gibbs motor vehicle. Conclusion: The onus is upon Mr. Gibbs to establish negligence on the part of Ms. Archibald and on the balance of probabilities he has fully met that onus. I conclude that Ms. Archibald's inattention, coupled with a probable higher rate of speed than she estimates, renders her solely responsible for this accident, and she was not justified in entering the lane of opposing traffic. am unable to conclude any contributory negligence on the part of Mr. Gibbs. DAMAGES Pre‑Accident Health Lloyd Gibbs born March 26, 1948 was 44 at the time of this accident and he is now 46. His family physician, Dr. Roger H. Cook, reported November 11, 1993: "Mr. Gibbs back problems did not begin with the motor vehicle accident. Prior to the accident he had history of episodes of low back pain about once per year. They typically lasted three or four days with each flare‑up and were not associated with feeling of spasm. There was never any radiation of pain with these episodes." Mr. Gibbs had no neck or left knee complaints prior to this accident. In 1988 Dr. Cook referred Mr. Gibbs to Dr. Keith Walling, an ear specialist, who reported March 11, 1988: "Many thanks for referring this gentleman who was found to have some abnormality in his left ear. As far as his ears are concerned, he is asymptomatic." Dr. Walling's examination in 1988 made reference to mild tonsillitis, but there was nothing of significance found with respect to his ears. Post this accident Mr. Gibbs has had problems with his neck, left knee and exacerbation of his lumbar pain and hearing loss in his left ear. His recovery has been interfered with and delayed due to his undergoing coronary by‑pass surgery in April, 1993, however, Dr. R.W. Landymore reported October 1, 1993: "Although it is possible that the trauma resulting from this accident may have aggravated his coronary symptoms and/or precipitated the heart attack, the underlying coronary artery disease was, undoubtedly, present for some years preceding the motor vehicle accident." Medical Evidence Dr. Roger H. Cook, Family Physician 1. Report dated June 29, 1992 Mr. Gibbs' complaints on June 1, 1992 were of dizziness and stiff sore neck. Neck x‑rays disclose no abnormalities. Dr. Cook next saw Mr. Gibbs June 5th and his complaints were dizziness, headaches and sore neck. Dr. Cook reported: 'There was no tenderness on examination of his neck but he did have moderately limited range of motion particularly on moving his head to the right." His neck remained quite painful particularly this time on lateral flexion to the left. He was having difficulty sleeping due to the pain in spite of the use of soft collar. He was started on medication, Imipramine, to try to relieve the pain and improve his sleep. As of the 17th of June there was no change in his neck pain." "At this point my working diagnosis with Mr. Gibbs is of concussion and muscular and/or ligamentous neck injury." "I would anticipate that his problems will resolve completely, probably within the next few months but obviously such an estimate is very rough." 2. Report October 26, 1992 Dr. Cook commented: "I saw him on the 23rd of September 1992 at which time he complained of pain and grinding in his left knee." "He had an x‑ray of his left knee which was reported as normal. When saw him next on the 29th of December he described somewhat different sensation, more of burning numbness over the knee and he felt that there was point in which he could press which would exacerbate this discomfort. Neither he nor were able to demonstrate the trigger point in the office. At the moment am suspicious that he had minor nerve injury perhaps resulting in neuroma which is benign growth at the end of the severed nerve and which is responsible for the pain." 3. Report of November 11, 1993 Dr. Cook commented: "Mr. Gibbs most recent visits with me were October 20, 1993 and November 2, 1993." “1) Neck Mr. Gibbs continues to have pain in his neck severe enough that it sometimes wakes him through the night." "On examination he has normal range of flexion with mild discomfort. He has about 80% of normal extension during which he complains of grinding and pain in the center of his neck. Rotation to either side is about 75% normal range again with grinding and pain? "An x‑ray of the cervical spine in May of 1992 was reported as showing significant disc space narrowing at the C5‑6 level and osteoarthritis at that same level." “2) Left Knee ... Sitting and walking are not uncomfortable except for the continued numbness. On examination there was an inconsistent decrease in pinprick sensation over small area around the lower outer edge of the kneecap. He has normal strength in the knee and about 95% of normal flexion of the knee with puffing and burning sensation described by the patient with attempt at full flexion. There are no palpable nodules and was not able to identify any trigger point. An x‑ray of the left knee September 25, 1992 is reported as showing no bony or soft tissue abnormality other than slight deformity of the proximal left fibula suggesting an old fracture." “3) Low back ... Since the motor vehicle accident he has had three episodes of severe back pain, the first lasted two weeks, the second two or three weeks, and the third now about weeks duration and continues. There is no radiation of his pain. The flare‑ups of pain since the motor vehicle accident have been more severe than those prior to the accident. At present he has pain with sitting for more than about 15 minutes. He has to shift position in order to relieve the pain. On examination there was tenderness over the high left lumbar paraspinal muscles. He had normal range of flexion in that he was able to reach his toes. Extension of his low back was limited to about 1/2 of normal range due to pain at the upper lumbar level. There was no radiation of this pain. He has normal lateral flexion but with pain and normal rotation with mild discomfort. His reflexes in lower limbs are normal. Straight leg raising on each side is to 90 degrees with no pain. An x‑ray of his lumbosacral spine is reported as showing narrowing of the L4‑5 and L5‑S1 disc spaces consistent with degenerative disc disease and osteophytic spurring particularly at the L5 and Sl levels indicative of osteoarthritis." "In summary, believe that Mr. Gibbs has experienced significant exacerbation of pre‑existing problem with osteoarthritis and degenerative disc disease at the lumbar and cervical level as result of his motor vehicle accident. The problem with his knee also appears to be directly the result of the accident. suspect that the cause here is neuroma as described in my previous letter to you." Dr. Keith Walling, Ear Specialist 1. Report July 6, 1992 Dr. Walling reports: "he has been extremely dizzy although recently this has settled down much more. His wife has, since the motor vehicle accident, been complaining that he has the TV up rather loudly. He does not suffer any tinnitus. He does not have any history of hunting or other noise damage in the past." "Neurologically, could not find any abnormality and audiologically he has moderate to severe high frequency sensorineural loss in the left ear," This gentleman is suffering from post concusional vertigo. He seems to be making very rapid recovery. It would seem that concurrent with this, he has suffered some damage to his hearing." 2. Report of August 26, 1992 Dr. Walling reports: saw him initially in 1988, at which time his ears were normal apart from slight degree of retraction on the left side." Following this injury, he was extremely dizzy but, when saw him week after the accident, he was already beginning to get over the dizziness but it was noted by his wife and by himself, that he had some hearing loss. did an audiogram on him on July 6th, copy attached. As you can see from this, he has high frequency left sided sensorineural loss. He did not give any history in either examination of noise exposure and, in 1988, he did not have any subjective hearing loss symptoms. As this gentleman experienced hearing loss following the injury and suffered from vertigo and the hearing loss was also noted by his wife following the injury, should be as certain as can be that he suffered from post concussional vertigo, along with concussion to his inner ear and would say that his hearing loss is likely to be permanent in the left ear." 3. Report of November 2, 1992 Dr. Walling reported: "Repeat audiometric studies show his hearing loss to be exactly what it was when saw him in July and would think therefore that the level of hearing that he has at the moment, is going to be permanent." 4. Report of December 12, 1994 Dr. Walling reported: "... am not aware of any other possible cause for this gentleman's high frequency predominantly left sided sensory neural hearing loss other than his MVA and head injury after which all of his current symptoms arose." Dr. Michael Gross, Orthopaedic Surgeon 1. Report September 18, 1992 Dr. Gross reported that Mr. Gibbs was aware he had pain in his left knee from hitting the dashboard, and he went on to report: "SYMPTOMS ARISING FROM THE ACCIDENT: Neck Pain: The neck pain started on the day of the accident. It became worse over the next two to three days. He was treated with collar which he wore for three weeks. He now finds that the neck pain is episodic. It never actually goes away, but varies in severity. The neck pain makes his head feel very heavy. He cannot stay in one position for long and supports his head while watching T.V. He has dull heavy pain when he sits in one spot for prolonged periods of time. The patient has received physiotherapy for this complaint, which has resulted in the relief of pain for two to three days. Vertigo: The patient has been subject to attacks of severe dizziness. He has fallen down couple of times as result of this and noticed that the vertigo is associated with nausea. These attacks lasted for one and half months. They slowly improved after that and they have now disappeared. He was seen and assessed by Dr. Walling for these complaints. Hearing: The patient notes that he uses his left hand to his ear to enhance his hearing ability. His T.V. is turned up in volume to the point where his wife objects. He has found it difficult in general to hear as well since his accident." Dr. Gross also reports: "The patient admits to having had back pain in the past. It has been localized over his lower lumbar spine. He, in the past has been immobilized with the pain and has been taken by ambulance to hospital. The lower back pain is still bit of problem and depends on whether he strains, has big meals or is under lot of stress." Dr. Gross noted Mr. Gibbs' concerns with respect to difficulties with sleeping for which he takes medication and that he is unable to cut wood or landscape and found it difficult to clear snow. Dr. Gross' examination indicated reduced rotation of his cervical spine, pain in the right shoulder, decreased sensation on the back of his right hand, however his lumbar spine exhibited full range of motion. It was noted that his left knee demonstrated decreased sensation. Dr. Gross reviewed x‑rays and the CT scan noted cervical spine revealed degenerative disk disease at C5‑6, and Dr. Gross concluded Mr. Gibbs suffered severe injury to the soft tissues of the cervical spine with pre‑existing degenerative disease being exacerbated. Fortunately, the vertigo had abated. Dr. Gross' prognosis was that it would likely take one to two years before Mr. Gibbs' neck complaints settled down. That he will likely have residue neck stiffness, neck pain which will be exacerbated by any form of heavy activity or exertional activity and this exacerbation may come about by weather changes or with prolonged sitting in one position. 2. Report January 30, 1995 Dr. Gross reported: 'There is no sign of specific nerve root irritation in either his cervical spine or his lumbar spine, and this would seem to indicate that his back pain has been caused by post traumatic exacerbation of his disc degeneration but hasn't progressed to irritate nerve at the present time. The natural history of such back and neck pain is for symptoms to decrease in severity with the passage of time; that time being 2‑5 years on average. Surgical intervention in these cases has not met with the resounding success, and therefore is unlikely to be recommended for this individual. There is no sign of serious instability in the lumbar spine that would be one of the major indications for surgery when there is no evidence of nerve root involvement. The patient will likely therefore to (sic) continue to suffer episodes of back pain, but as he accepts and adapts to his back pain he find (sic) that with the passage of time he is able to do little more in the way of exercise which would be walking or swimming. He is unlikely to get back into full exercise regime such as chopping and splitting wood, looking after dogs, etc; activities which he previously enjoyed. The patient's knee injury has left him with some confusion or bruising of the nerve but not complete section of the nerve. This (sic) symptoms may improve with time, as the nerve regenerates, but do not think that this is major disability and has not resulted in any major arthritic degeneration in the knee. He is able to compensate for these symptoms to limited degree by using kneeling pad, but direct irritation of the area continues to upset him and give him pain. Again think these knee symptoms will slowly resolve with the passage of time, but over the next 2‑5 years he is not going to be able to return to his previous level of physical activity. Mr. Gibs complaints and prognosis with respect to his hearing loss has been extremely well covered by Dr. Walling." 5. HEARING ASSESSMENT Mr. Gibbs indicated and accept he had no hearing limitations prior to this accident. Dr. Walling's evidence clearly establishes Mr. Gibbs suffered high frequency left sided sensorineural loss which is likely to be permanent. The degree of impairment is described by Dr. Walling as "the degree of loss that he has will give him moderate degree of permanent deafness particularly in situations with background noise or in group conversation". The opinion of Dr. Walling is consistent with Mr. Gibbs' evidence that it is not total loss of hearing but partial which Mr. Gibbs went on to describe as "more aggravation as hear dull sounds, irritable". The first complaint was by his wife that he had the T.V. on too loud and Mr. Gibbs had trouble with background noise such as dishes in the kitchen, or at meeting. He might face some strain and some "pardon me's". There is no indication that he has lost total hearing or that the hearing impairment interferes with his substantial distance driving of motor vehicle et cetera. The loss he has is permanent and the major difficulty have in assessing damages at an appropriate level is that do not have any evidence of the degree of impairment or yard stick which would make comparison principally with other cases somewhat more reliable. In this case initially Dr. Walling mentioned he did not suffer tinnitis (Report August 26/92) but subsequently complained of it on October 21st, 1992 (Walling Report, November 2/92). Although Dr. Walling noted "this apparently is not too bad but he did not notice this before". Mr. Gibbs did mention some difficulties with balance. Dr. Walling did not mention tinnitis in his final report (December 12/94) nor did Mr. Gibbs in his evidence. Care must always be exercised in utilizing awards in other cases as obviously no two injury situations nor the impact of similar injuries are likely to be identical. The cases referred to are of little comparison as they indicate global awards or specific factual loss i.e. 60% of hearing in one ear et cetera. Tims‑Loveless v. Novotony (1991), 1991 CanLII 4318 (NS SC), 110 N.S.R. 2d 85 cited by Mr. Gibbs' counsel is of very minimal assistance. Mrs. Tims had pre‑existing hearing problem and consented to surgery with the unfortunate result she suffered total hearing loss in her left ear. The decision does not mention her age or overall degree of impairment prior to surgery, although it does indicate her hearing was deteriorating and at sometime in the future she would likely reach very severe hearing disability in any event. Justice Richard assessed damages at $15,000.00 however it was global assessment covering loss of amenities, inconvenience, pain and suffering, and loss of sick leave. The loss itself was incurred by her in 1984. I conclude in this case a reasonable award for the permanent hearing impairment suffered by Mr. Gibbs which will continue to be a source of concern, irritation and aggravation but where there is no evidence that it will lead to a total loss of hearing in his left ear or any acceleration of further loss of hearing in the left ear is the amount of $8,500.00. LEFT KNEE Mr. Gibbs indicated that his knee impacted the dash resulting in small cut and he experienced searing pain as if he had been cut with knife. He experienced some grinding and said that he had learned to live with the knee and expected he might have to have surgical removal of some scar tissue. Mr. Gibbs had no problem with his knee prior to the accident and it has neither improved or deteriorated. Mr. Gibbs was telling it the way it is and was not exaggerating and he should be compensated for the past, present and future pain and aggravation he will sporadically incur. It is to be noted however that Dr. Cook in his final report indicated Mr. Gibbs has normal strength in the knee and about 95% of normal flexion. Dr. Gross felt the symptoms may improve with time as the nerve regenerates and he did not classify this as major disability nor has it resulted in any major arthritic degeneration in the knee. Dr. Gross felt the knee symptoms will slowly resolve over the next two to five years. He was not going to be able to return to his previous level of physical activity. For past, present, and future limited pain suffering inconvenience interference with the amenities previously enjoyed by Mr. Gibbs I assess damages at $2,500.00. 7. NECK LOWER BACK Dr. Cook in his final report of April 11/93 found normal range of flexion with mild discomfort and about 80% of normal extension with rotation to either side at about 75% of normal range but with grinding and pain. It is clear therefore that Mr. Gibbs has only limited restriction of neck movement. Such movement brings forth pain. Dr. Cook put the pre‑existing back problem in proper perspective when he considered the accident to be significant exacerbation of pre‑existing problem with osteoarthritis and degenerative disk disease at the lumbar and cervical level. Dr. Gross the orthopaedic surgeon found no sign of specific nerve root irritation in either his cervical spine or his lumbar spine and he expressed the views that the natural history of such back and neck pain is for symptoms to decrease in severity with the passage of time. Dr. Gross in his final report indicated that overall Mr. Gibbs' complaints had not improved and would likely continue. However, he felt that there was less than 10% chance of surgical intervention being required for his neck and back complaints. Dr. Gross also noted that the accident interfered with Mr. Gibbs having proper exercise regime following his cardiac surgery. Mr. Gibbs pointed out that he does lot of driving and while it has been reduced somewhat it is clear that he is coping as he drives considerable distance on an annual basis in his employment. He wore cervical collar initially for about three weeks, and overall he expressed the view that he cannot honestly say that his neck has gotten any better. He also notices frequent flare ups with respect to his back whereas they were sporadic before the accident. He missed some time from employment but there is no loss of income claim advanced. His day to day routine prior to the accident was one of fairly active outdoor individual. He often split his own wood, looked after his lawn, snow removal, wallpapering, painting, whipper snipping, and many of these activities are limited or beyond his present capacity. He and his wife used to have Irish Setters and have had as many as thirteen dogs which required great deal of work in cleaning, grooming, exercising, travel et cetera, and he has had to give up this great pleasure, and he and his wife are now down to one dog. He had been dog breeder since 1970 and was member of the Cobequid Dog Club. It was major hobby and love of his. He used to go fishing half dozen to ten times year and this is no longer possible. He indicated he did lot of swimming and other activities with his mentally challenged daughter and said that this was pretty well curtailed, however, it is pleasing to note Dr. Gross' final report indicates that with the passage of time he will be able to do little more in the way of exercise which would be walking or swimming, and post this accident he has put swimming pool in his backyard. am optimistic that he will be able to do some of the things he did prior to the accident but not those involving any heavy lifting, such as snow shovelling, most activities relating to dog raising et cetera. have already commented that on discovery he indicated travel in the range of 60,000 to 70,000 kilometres per year which at trial he thought might be little on the high side and it might be as low as 40,000 to 50,000 kilometres which nevertheless shows considerable capacity on the part of Mr. Gibbs to live with his difficulties. He utilizes no seat or cushion for driving purposes. He had quadruple heart by‑pass but experiences no difficulties or problems now. However, it is noted he carries an excessive amount of weight. He put in wooden deck around the pool after the accident but the work was done predominantly by his father. He goes to dog shows now, but more in the nature of social outing. To his credit Mr. Gibbs has been involved publically in leadership capacity with respect to the possible retention of the Nova Scotia Youth Training Centre and he is also post the accident been elected to the local School Board. Overall was impressed with Mr. Gibbs as one who will make every effort to overcome and compensate for the continuing significant difficulties he suffers as result of this accident. We have therefore, situation where Mr. Gibbs has suffered cervical injury which has not been labelled mild, moderate, severe, or one, two or three. However, the pain and suffering that he has endured to date, and will sporadically continue to endure, coupled with the interference with his lifestyle and loss of amenities brings this whiplash injury close to severe designation when it comes to the range of damages referred to by our Court of Appeal: "In Smith Stubbert (1992), 1992 CanLII 2554 (NS CA), 117 N.S.R. (2d) 118 considerable guidance was given to the trial justices by Chipman, J.A. at page 127: "I have considered number of recent cases involving damage awards for injuries not unlike those sustained by the respondent. Most are cases dealing with that small percentage of people who do not recover from soft tissue injuries of the neck but suffer long‑term discomfort which almost invariably brings on emotional problems. Some of the cases dealt with other injuries in addition, and others dealt with injuries of different nature but having the common feature of long‑term chronic pain. No two cases are alike and even similar injuries will impact differently on different people. In the cases reviewed, the symptoms persisted and usually many doctors were involved in the treatment and/or assessment of the injuries. Each case was decided by different court at different time and precise range of awards cannot, with precision, be laid down. In broad terms the range for nonpecuniary damage awards for such persistently troubling but not totally disabling injury is from $18,000 to $40,000." "Chipman, J.A. also added: In dealing with nonpecuniary awards it is useful to keep in mind what Dickson, J. speaking for the Supreme Court of Canada said in Andrews v. Grand and Toy (Alberta) Ltd., 1978 CanLII (SCC), [1978] S.C.R. 229; 19 N.R. 50; A.R. 182; 83 D.L.R. (3d) 452; [1978] W.W.R. 577; C.C.L.T. 225, at p. 261: 'There is no medium of exchange for happiness. There is no market for expectation of life. The monetary value of nonpecuniary loss is philosophical and policy exercise more than legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional...' Here, there is the added dimension of the exacerbation of pre‑existing lower back problem. find it impossible to separate consequences of the whiplash injury generally and the exacerbation of suffering attributable to his low back. will assess damages covering both aspects as did in King versus Leahey (1992), 109 N.S.R. (2d) 163. The interference with Mr. Gibbs' quality of life is more severe in this case than it was in King versus Leahey supra. I conclude for nonpecuniary damages under this heading for his past, present and future pain and suffering, loss of amenities, interference with his active lifestyle et cetera a reasonable award of general damages is $31,500.00. 8. PREJUDGMENT INTEREST The awards of general damages of $8,500.00, $2,500.00 and $31,500.00 will bear prejudgment interest at 2.5% from the date of the accident May 30, 1992, to date. 9. LOSS OF FUTURE EARNING CAPACITY conclude the evidence does not support an award of damages for diminution of earning capacity in the future, the setting of damages for this was recognized by the late Morrison, J., in Poirier Malcolm (1981), 47 N.S.R. (2d) 616 where at pp. 627‑628 Morrison, J., stated: 'This being case of diminution of earning capacity which is incapable of precise calculation rather than complete loss of earning capacity feel that the question of damages for future pecuniary loss of earnings should be included as an item under general damages." The evidence in this case is unlike the evidence in such cases as: "King v. Leahey (1992), 109 N.S.R. (2d) 163 ($20,000), Nicholson v. Attorney General et at. (1992), 1991 CanLII 4275 (NS SC), 110 N.S.R. (2d) 181, confirmed on appeal (1993), 1992 CanLII 2527 (NS CA), 117 N.S.R. (2d) 46 ($21,000.00), Smith Gardiner (1992), 112 N.S.R. (2d) 64 ($42,000) and Newman and Fraser LaMarche (1994), 1994 CanLII 4343 (NS SC), 131 N.S.R. (2d) 165, confirmed on appeal ($26,000)." In this case Mr. Gibbs is continuing in his employment, in his chosen field, with very high probability of continuation of his employment in the nature and area of employment of his choice. Such circumstances do not warrant any conclusion of any possible limitation or diminution of his employment horizon that would warrant compensation. COSTS Counsel are entitled to be heard on costs and disbursements, and if they are unable to agree am prepared to tax the same. would ask that they file and exchange any representations by March 13th, 1995.
The 46-year-old male plaintiff suffered damage to his knee, left ear and exacerbation of a back problem when his vehicle was struck by the defendant's vehicle. Finding the defendant solely at fault, that evidence from the accident reconstruction as to the angle of impact supported a conclusion the defendant was travelling faster than she realized and was inattentive. Damages were set as follows: impairment to hearing in left ear assessed at $8500, damage to left knee assessed at $2500. Exacerbation of a pre-existing back condition which produced consequences in the severe range was assessed at $31,500.