Richter Trial Law, the goodfirm ICBC personal injury lawyers want to draw attention to a recent $4.8 million dollar award been handed down from the Supreme Court of British Columbia in Hans v. Volvo Trucks North America Inc., 2016 BCSC 1155 over a truck accident involving electrical failure on a long haul truck and serious psychological injuries.
Mr. and Mrs. H, a married couple, were originally from India but settled in BC to raise their daughter and son while working full time. Prior to arriving in Canada, Mr. H had been an exceptional college athlete and competed in track and field and field hockey.
While working in BC, Mr. and Mrs. H eventually passed their Class 1 licences and began to drive as long haul truck drivers.
Eventually they partnered with a trucking company and purchased a 2009 Volvo 780 long haul truck. However, the truck began to develop electrical problems after it was purchased and was repaired by Volvo.
During the collision, Mr. and Mrs. H were returning home from eastern Canada after a long haul truck run with a fully loaded trailer. They were just passed Winnipeg by nightfall and the roads were icy and slippery. Without warning all of the electrical systems on the truck failed and Mr. H was left with no ability to control the trailer, which began to jackknife on the road, and eventually swung around striking the cab of the truck near the fuel tank and knocking the truck into the ditch on the passenger side. Although no one was seriously injured, Mr. H went on to develop severe and debilitating post-traumatic stress disorder and psychological injuries.
At trial, Mr. and Mrs. H alleged negligence on the part of Volvo for the design, manufacturing and installation of the electrical connection of the truck and sought substantial damages for the losses as a result of Volvo’s negligence. Despite admitting that the collision was caused by a loose part on the battery terminal, Volvo denied negligence and claimed not only that Mr. H had exaggerated his claims but that his psychological injuries were too remote to entitle him to damages.
Mr. Justice Davies was tasked with determining whether Volvo was liable and if so, what the appropriate amount of compensation was appropriate. The court reviewed the medical evidence around Mr. H’s condition. Since the accident, Mr. H had suffered from feelings of isolation, very low energy levels, low mood, recurring nightmares about the collision, paranoid type delusions and was depressed about his inability to earn income for the family and the burden he had become upon his wife. Mr. H even attempted suicide and required constant supervision from his wife and family friends.
Mr. Justice Davies applied the well-established negligence principle that a duty of care is owed by an automobile manufacturer not only to purchasers but also to subsequent users of their products. However, the plaintiffs had produced no evidence before the court as to the standard of care required by Volvo as part of the negligence analysis. Despite this, Mr. Justice Davies adopted the Nova Scotia Court of Appeal’s reasoning in Johansson v. General Motors of Canada Ltd., 2012 NSCA 120 for the position that negligence can be inferred from the existence of a defect in a product and that where a product has been manufactured with a defect and the defect has resulted in the plaintiffs injuries, the inference of negligence from the defect is “practically irresistible”. While expert evidence of industry standards would be relevant for the proceedings, it is not legally mandatory.
The court found Volvo liable for the accident on the basis that they had negligently installed the hardware for the electrical system in the Volvo and that the loss of electrical power that caused the accident resulted from the negligent installation. Volvo was also found to be negligent in failing to classify the hardware and torque specifications as a critically important as to warrant extra vigilance in their installation. Mr. Justice Davies held that Volvo had a duty to notify owners of the Volvo of the risk in the electrical system and that they had failed in that duty.
Mr. Justice Davies then dealt with the issue of causation and applied the “but for” test. As a general rule, a plaintiff cannot succeed unless they show that they would not have suffered the loss but for the negligent acts of the defendant. Mr. Justice found that Volvo’s negligence was the cause of the plaintiff’s injuries.
Volvo argued that there was no link between Mr. Han’s PTSD and their negligence and that the injuries suffered by Mr. Han were too remote. Based on the fact that Mr. H was diagnosed with PTSD within 2 weeks of the accident and that his psychological symptoms were present immediately after the collision Mr. Justice Davies had no trouble concluding that his injuries were a direct result of the crash and that it was reasonably foreseeable that such a crash would cause a psychological injury.
In assessing the amount of damages, Ms. H was awarded a modest $15,000 as her injuries had largely resolved by the time of trial. However, given that Mr. H’s injuries were found to be life altering in every respect, Mr. Justice Davies awarded him $265,000 for pain and suffering and loss of enjoyment of life. He also awarded $165,000 for in-trust claims as compensation for his spouse and family members who provided care and other services to Mr. H.
In making an award for $1,781,000 for the future cost of Mr. H’s care, Mr. Justice Davies relied on the fact that Mr. H would require near constant supervision until age 75 based on his suicide attempt and ongoing psychological issues.
Mr. Justice Davies then assessed Mr. H’s loss of income earning capacity. The difficulty in assessing the loss of income earning capacity is dealing with contingencies such as whether their trucking business that they had intended to start would have been successful and how much income they would have made. Additionally, the court was also tasked with determining what income had been lost as a result of the accident and how that lost income should inform their future earnings.
Mr. Justice Davies reviewed the authorities in Reynolds v. M. Sanghera and Sons Trucking Ltd., 2015 BCCA 232, Rowe v. Bobell Express Ltd., 2005 BCCA 141, and Perren v. Lalari, 2010 BCCA 140 and concluded that when an assessment of past income loss requires consideration of events that did not occur, but could have occurred but for the negligence of the defendant, it is not necessary for the plaintiff to establish on a balance of probabilities that the event would have occurred. What they must establish is a “real and substantial possibility” that a hypothetical future event led to an income loss and if such possibility is established, the award of damages must also factor in how likely that event was to occur.
After reviewing the plaintiffs’ past work history and education and hearing testimony from past co-workers, Mr. Justice Davies concluded that there was a very real and substantial possibility that the plaintiffs would have started the trucking venture but for the accident and awarded Mr. H $1,231,250 for his loss of income capacity based on expert evidence to the effect that he would have made $49,250 per year until age 65. Mrs. H was also awarded $470,000 for her future loss of earning capacity.
In total the plaintiffs were awarded $4,867,694.75 in damages as a result of the accident. Hans v. Volvo Trucks North America Inc. is interesting in that although the Supreme Court of Canada in the Andrews Trilogy (Andrews v. Grand & Toy Alberta Ltd., Arnold v. Teno, and Thornton v. School Dist. No. 57 (Prince George)) imposed a cap of $100,000 on damages for pain and suffering ($327,265 due to inflation) as a public policy measure in order to avoid the soaring award of damages seen by the United States, there is no cap on awards under the head of future loss of income earning capacity and cost of future care. Although pecuniary damages in Canada may have been capped, there are increasing trend towards large awards under other heads of damage.