IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Hans v. Volvo Trucks North America Inc.,  
2016 BCSC 1155  
Date: 20160623  
Docket: S099074  
Registry: Vancouver  
Between:  
And  
Amandeep Hans and Pavandeep Hans  
Volvo Trucks North America Inc.,  
Plaintiffs  
National Truck Centre Inc. dba Pacific Coast Heavy Truck Group,  
VFS Canada Inc. dba Volvo Financial Services  
and N. Yanke Transfer Ltd.  
Defendants  
- and-  
Docket: S151942  
Registry: Vancouver  
Between:  
Her Majesty The Queen In Right Of The Province Of British Columbia  
Plaintiffs  
And  
Volvo Trucks North America Inc.,  
National Truck Centre Inc. dba Pacific Coast Heavy Truck Group,  
VFS Canada Inc. dba Volvo Financial Services  
and N. Yanke Transfer Ltd.  
Defendants  
Corrected Judgment: The text of the judgment was corrected at paragraph 547 on  
July 20, 2016  
Before: The Honourable Mr. Justice Davies  
Reasons for Judgment  
Hans v. Volvo Trucks North America Inc.  
Page 2  
Counsel for the Plaintiffs:  
L.J. Mackoff  
I. Teicher  
A. Bell  
Counsel for the Defendants Volvo Trucks  
North America Inc. and National Truck  
Centre Inc. dba Pacific Coast Heavy Truck  
Group:  
M.P. Katzalay  
G. Fraser  
Place and Date of Trial:  
Vancouver, B.C.  
January 11-15, 18-22, 25-29 and  
February 1-5, 9, 11-12, 15-19, 2016  
Place and Date of Judgment:  
Vancouver, B.C.  
June 23, 2016  
Hans v. Volvo Trucks North America Inc.  
Page 3  
Table of Contents  
I. INTRODUCTION................................................................................................. 6  
II. THE PARTICULARS OF THE COLLISION........................................................ 6  
III. ISSUES............................................................................................................... 8  
IV. BACKGROUND................................................................................................ 10  
A. Personal Circumstances before Marriage ..................................................... 10  
B. Lives and Work between April 2000 and July 2007....................................... 11  
C. Incorporation of Sai Transport Inc. and Acquisition of the Volvo 780............ 15  
D. Electrical Problems before the Collison......................................................... 16  
E. The Investigation of the Collison ................................................................... 17  
F. Termination of Employment (February 2009)................................................ 19  
G. Early Medical Assessments Post Collison..................................................... 20  
H. Failure to Provide Report of Investigation; Repair of the Truck; Demand for  
Payments Under Lease; and, Sale of the Truck after Seizure (February 2009  
to November 2009) ....................................................................................... 22  
I. Attempts to Drive Commercially (Fall of 2009 to September 2011)............... 26  
J. Cessation of Driving and Suicide Attempts (September of 2011 to September  
2012)............................................................................................................. 28  
K. Life since Last Suicide Attempt ..................................................................... 33  
V. CREDIBILITY.................................................................................................... 38  
A. Mr. Hans’ Condition at the Time of the Meetings with Yanke in Saskatoon .. 39  
B. The Plaintiffs’ Sale of their Home after the Collision ..................................... 43  
C. The Sincerity of Mr. Hans’ Suicide Attempts ................................................. 49  
D. The Extent to which Mr. Hans has been Supervised..................................... 52  
1) Supervision of Mr. Hans in Canada........................................................... 52  
2) Mr. Hans’ trips to India in 2013 and 2014 .................................................. 55  
E. Video Surveillance of Mr. Hans’ Activities in May and June of 2015............. 57  
VI. LIABILITY......................................................................................................... 64  
A. Shutdown Caused by a Loose Nut on the Cab Positive Terminal................. 64  
B. Proof of the Duty of Care............................................................................... 68  
C. Proof of the Standard of Care ....................................................................... 69  
D. Principles to be Applied in Determining Liability for Alleged Negligent  
Manufacture or Design.................................................................................. 74  
E. Evidence Concerning the Design and Installation of the Hardware on the Cab  
Positive Terminal of the Truck....................................................................... 77  
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F. Errors made by Mr. Hewitt concerning the Configuration of the Hardware on  
the Cab Positive Terminal ............................................................................. 86  
G. Conclusions on Liability................................................................................. 91  
1) Negligent Manufacture............................................................................... 91  
2) Negligent Design ....................................................................................... 95  
3) Breach of Duty to Warn ............................................................................. 96  
VII. CAUSATION..................................................................................................... 97  
A. Causation and the ‘But for Test.................................................................... 98  
B. Impact of Yanke’s Actions on Volvo’s Liability............................................... 99  
VIII.REMOTENESS............................................................................................... 102  
IX. DAMAGES...................................................................................................... 108  
A. Non-Pecuniary Damages for Pain and Suffering and Loss of Enjoyment of  
Life .............................................................................................................. 112  
1) Mrs. Hans ................................................................................................ 113  
2) Mr. Hans.................................................................................................. 114  
B. The “In-Trust” Claim.................................................................................... 122  
C. Cost of Care (Past) ..................................................................................... 127  
D. Cost of Care (Future) .................................................................................. 128  
1) Medications ............................................................................................. 130  
2) Rehabilitation Therapies.......................................................................... 130  
3) Constant (24 hour) Supervision............................................................... 133  
4) Home Care Costs.................................................................................... 139  
E. Loss of Income Earning Capacity................................................................ 140  
1) Principles Applicable to Assessment of Damages for Loss of Earnings .. 142  
2) Application of the “Team” Approach to Assessment of Damages............ 148  
3) Yearly Income Earned by the Plaintiffs before the Collision .................... 152  
4) The Sai Trucking Venture........................................................................ 155  
a) Is there a real and substantial possibility that the Sai Trucking Venture  
would have been implemented but for the collision?................................... 157  
b) The likelihood of success of the Sai Trucking Venture............................ 161  
F. Past Loss of Earning Capacity .................................................................... 166  
1) Assessment of Loss of Past Income Earning Capacity related to the  
“Trucking Division” of the Sai Trucking Venture.............................................. 167  
2) Assessment of Loss of Past Income Earning Capacity related to the  
“Dispatch Division” of the Sai Trucking Venture.............................................. 168  
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3) Assessment of Total Past Earning Capacity Loss from January 31, 2009 to  
Date of Trial .................................................................................................... 170  
4) Deductions from Assessment of Total Past Earning Capacity Loss because  
of Income Earned ........................................................................................... 171  
5) Summary of Deductions .......................................................................... 174  
6) Did the Plaintiffs Fail to Mitigate their Past Earning Capacity Losses?.... 175  
a) “Abandonment” of the Truck or failure to trade it in................................. 176  
b) Failure to hire a driver to replace Mr. Hans’ income................................ 178  
c) Failure of Mrs. Hans to work as a dispatcher from her home.................. 178  
G. Future Loss of Earning Capacity................................................................. 180  
1) Loss of Future Income Earning Capacity from the “Trucking Division” of the  
Sai Trucking Venture ...................................................................................... 182  
2) Loss of Future Income Earning Capacity from the “Dispatch Division” of the  
Sai Trucking Venture ...................................................................................... 183  
3) Total Loss of Future Income Earning Capacity........................................ 184  
4) Allocation of Loss of Future Income Earning Capacity ............................ 184  
X. SUMMARY OF DAMAGES AWARDS ........................................................... 187  
XI. ISSUES REMAINING TO BE DETERMINED................................................. 188  
Hans v. Volvo Trucks North America Inc.  
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I.  
INTRODUCTION  
On a dark, cold, snowy winter night a long haul trucker was driving his fully  
[1]  
loaded tractor-trailer on the Trans-Canada Highway in Manitoba. Without warning all  
electrical power was lost. All lights were extinguished. Darkness enveloped the  
truck. The driver lost all control of the steering and the trailer. Sparks began to fly  
amid the sound of screaming tires as the landing gear of the trailer scraped along  
the highway. The trailer jack-knifed and came towards the driver’s side of the truck’s  
cab. The driver and his wife, who had been resting in a bunk to the rear of the cab,  
both feared they would die.  
II.  
THE PARTICULARS OF THE COLLISION  
[2]  
On January 31, 2009 the plaintiffs, a husband and wife, long haul driving  
team, Amandeep and Pavandeep Hans, then working for N. Yanke Transfer Ltd.  
(Yanke), were returning to their home in Surrey, British Columbia after a long trip  
that had taken them into the United States and Eastern Canada.  
[3]  
They were driving a tractor trailer truck (the “Truck”) manufactured by the  
defendant Volvo Trucks North America Inc. acquired by them from the defendant  
National Truck Centre Inc. dba Pacific Coast Heavy Truck Group (NTC). I will refer  
to those two defendants collectively as “Volvo”.  
[4]  
[5]  
The return route was by way of the Trans-Canada Highway.  
Shortly after leaving Ontario, Amandeep Hans was driving while his wife,  
Pavandeep Hans, was resting in the sleeper berth.  
[6] It was a dark, cloudy night with light snow. The road conditions on the two  
lane highway were somewhat icy and slippery but not unusually or dangerously so  
for a driver of Mr. Hans’ experience and capabilities. He was proceeding at about 65  
to 70 km/h with a fully loaded trailer being towed by the Truck and traffic was light.  
[7]  
Without any warning, at about 10:00 p.m. near Falcon Lake, Manitoba about  
100 km east of Winnipeg, all electrical power in the Truck was lost.  
   
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[8] There were no headlights or fog lights to illuminate the road in front of the  
Truck. The interior lights were also out. Power steering was lost as was the ability to  
control the sway of the loaded trailer behind the Truck.  
[9]  
Mr. Hans screamed “what happened… what happened?” and then “we are  
going to die… we are going to die”.  
[10] He saw the trailer beginning to jack-knife toward the driver’s side of the Truck.  
He heard the sound of tires squealing but could not control the sway. In the side  
mirror he saw sparks flying from the landing gear of the trailer hitting the pavement.  
[11] The cab of the Truck sits above the fuel tanks on the driver’s side.  
[12] In total darkness the trailer came fully around to strike the cab of the Truck  
just behind the driver’s door.  
[13] The impact forced the Truck off the road and into the ditch on the passenger  
side. When it came to rest the driver’s side of the cab was elevated above the  
roadway. Mr. Hans remained motionless, as if paralyzed, and did not try to extricate  
himself from the cab.  
[14] Mr. Hans did nothing until Mrs. Hans, who had hit her head on the buckle of a  
seat belt when the Truck was swaying from loss of control, reached him and  
released his seatbelt. She then compelled Mr. Hans by words and action to get out  
of the cab of the Truck because of her own fear that fire would engulf the Truck.  
[15] Eventually, due largely to Mrs. Hans’ efforts, both were able to remove  
themselves from the cab and onto the roadway into the freezing night. Mrs. Hans  
was shaking with fear. She had believed she was going to die.  
[16] Although Mr. Hans had stopped screaming to Mrs. Hans he still seemed “out  
of it”.  
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[17] Fortunately, a Manitoba Hydro vehicle came by very shortly after the collision  
and afforded the plaintiffs a warm place to sit out of the elements. Mrs. Hans called  
9-1-1.  
[18] She also called Yanke’s dispatch office seeking assistance on a 24 hour line.  
She eventually connected with Ms. Shelly Grigorovich, Yanke’s Director of Human  
Resources and Risk Management.  
[19] Mrs. Hans testified that Mr. Hans was unresponsive to questioning by the  
Manitoba Hydro personnel who were assisting them.  
[20]  
Neither Mr. nor Mrs. Hans suffered serious physical injuries but their lives  
have changed dramatically in the almost 7 years since the collision.  
[21] The totality of the evidence establishes that Mr. Hans is now a shadow of his  
former self physically, emotionally and socially who is now incapable of enjoying life  
as he formerly did. He is also now incapable of maintaining gainful employment  
either as a long haul truck driver or by alternative means.  
[22] The plaintiffsmedical experts attribute Mr. Hans’ ongoing debilitating  
symptomology to Post-Traumatic Stress Disorder (PTSD) caused by the collision  
and his reaction to it.  
III.  
ISSUES  
[23] The plaintiffs allege that Volvo was negligent in designing, manufacturing and  
installing a critical cab positive terminal electrical connection in the Truck the failure  
of which caused the shutdown of the electrical system and caused the collision.  
[24] The plaintiffs seek substantial damages for the losses they claim they have  
suffered as a consequence of that negligence.  
[25] In response Volvo admits that the collision was caused by a loose nut on the  
cab positive terminal but denies that the plaintiffs have established that Volvo was  
 
Hans v. Volvo Trucks North America Inc.  
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negligent in the design, manufacture or installation of the cab positive connection, or  
is in any other way liable to the plaintiffs for their alleged losses.  
[26] Volvo further alleges that Mr. and Mrs. Hans have greatly exaggerated their  
claimed losses, including the extent of the psychological injuries suffered by  
Mr. Hans.  
[27] Specifically, concerning Mr. Hans’ psychological injuries, Volvo also submits  
those injuries are too remote to entitle him to any compensation from Volvo. Volvo  
also pleads that the plaintiffs have failed to mitigate or have inadequately mitigated  
any losses they may have suffered as a consequence of the collision.  
[28] Shortly before this trial commenced the plaintiffs discontinued claims they had  
formerly advanced against Yanke. That discontinuance is subject to a “B.C. Ferries”  
settlement agreement, the effect of which on the attribution of the respective  
responsibility, if any, as between Yanke and Volvo, for damages allegedly suffered  
by the plaintiffs must be considered and determined.  
[29] In addition, shortly before the trial of this action commenced, the Province of  
British Columbia commenced a separate action against Volvo pursuant to the  
provisions of the Health Care Costs Recovery Act, S.B.C. 2008, c. 27 (the “HCCRA”)  
seeking compensation for medical services and prescription medicines provided by  
the Province to Mr. Hans since the collision and in respect of his claimed future  
medical expenses. The two actions were tried together.  
[30] During this trial the quantum of past medical claims made by the Province  
under the HCCRA was resolved by agreement between the Province and Volvo in  
the amount of $198,868.75 with the attribution of any responsibility of Volvo for  
payment of that amount being left to the determination of the other liability issues in  
this action.  
[31] The following issues require determination:  
1) Is Volvo liable for any damages suffered by the plaintiffs?  
Hans v. Volvo Trucks North America Inc.  
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2) If so, in what amount must Volvo compensate the plaintiffs for:  
a) Mr. and Mrs. Hans’ respective non-pecuniary losses;  
b) an “in-trust” claim to compensate Mrs. Hans for her care and  
supervision of Mr. Hans between January 31, 2009 and this trial;  
c) the cost of Mr. Hans’ future care; and  
d) Mr. and Mrs. Hans’ past and future losses of earning capacity?  
3) Has Volvo established that the plaintiffs failed to mitigate their damages?  
4) To what extent, if at all, is Volvo liable to compensate the Province of British  
Columbia with respect to the agreed amount of $198,868.75 pursuant to the  
HCCRA?  
5) If Volvo is liable for some or all of the damages claimed by the plaintiffs, what  
is the impact, if any, of the plaintiffs’ B.C. Ferries settlement with Yanke?  
IV.  
BACKGROUND  
A.  
Personal Circumstances before Marriage  
[32] Mr. and Mrs. Hans were born in India in 1975 and 1976 respectively.  
[33] Mrs. Hans suffered from polio at 6 months of age and had four surgeries on  
her right leg and foot before she was four. She still walks with a slight limp but has  
otherwise fully recovered.  
[34] When Mrs. Hans was eleven years old she moved to Canada to live with an  
aunt. She learned to speak English quickly and is now fluent in both Punjabi and  
English. She graduated from high school in North Delta.  
[35] Members of Mrs. Hans’ immediate family also eventually immigrated to  
Canada and established themselves both in the Lower Mainland of British Columbia  
and in Oliver in the Okanagan Valley where her parents became farmers.  
   
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[36] After finishing high school Mrs. Hans moved to Surrey to live with her brother.  
She took courses in accounting at Kwantlen College for two years. She did not,  
however, complete all of the courses necessary to become an accountant because  
after two years she moved with her brother to Oliver where he became a fruit farmer.  
[37] Mrs. Hans lived in the Okanagan and worked there from 1996 to 1999 for  
Sage Greenhouses as a bookkeeper with quality control responsibilities.  
[38] On December 26, 1999, Mrs. Hans left Oliver to go back to Surrey in  
preparation for her arranged marriage to Mr. Hans in India.  
[39] Mr. Hans was an exceptional athlete in India before marrying Mrs. Hans in  
late 1999. His athletic endeavours included award winning performances in track  
and field as well as in field hockey at high levels of competition in college where he  
excelled. He eventually became a professional cyclist with the Punjabi Police Team.  
B.  
Lives and Work between April 2000 and July 2007  
[40] After the marriage Mrs. Hans returned to Canada in April of 2000 while  
Mr. Hans remained in India awaiting completion of the necessary processes to allow  
his immigration to Canada.  
[41] In early November of 2000 Mr. Hans joined Mrs. Hans in Canada and within 2  
weeks their daughter, Ashleen was born.  
[42] The new family settled into married life in Surrey. Mr. Hans’ mother also  
eventually moved to Canada and resided with them.  
[43] In February of 2002, the plaintiffs’ son, Deepkaran was born.  
[44] In the early years of their life together in Canada Mr. Hans began almost  
immediately working for A1 Building Supplies in its warehouse. He also made  
deliveries to construction sites. It was hard, physical labour which paid well and he  
enjoyed it immensely. He made good friends and enjoyed life and work in his new  
home.  
 
Hans v. Volvo Trucks North America Inc.  
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[45] After the birth of their second child Mr. Hans’ mother was able to provide child  
care assistance. Mrs. Hans was then able to return to the workforce as a  
bookkeeper for a trucking company.  
[46] In November of 2002 Mr. and Mrs. Hans and their two children took an  
extended seven month vacation to India where they visited religious and cultural  
sites and spent time with family and friends in Hans Village in the Punjab where  
Mr. Hans had been born and raised.  
[47] Mrs. Hans returned to Canada a few weeks earlier than did Mr. Hans so that  
he could continue playing in field hockey tournaments in India.  
[48] After Mr. Hans returned to Canada he went to work for Coast Building  
Supplies doing the same work as he had done at A1 with many of the same friends  
who had also by then left A1 to work for Coast.  
[49] In addition to his manual and forklift work in the Coast warehouse and in  
delivering supplies Mr. Hans undertook the training necessary to obtain a Class 1  
Drivers’ License with air brake certification. He began driving local delivery trucks for  
Coast but still enjoyed the hard physical labour associated with the warehouse and  
delivery work and continued to lead his delivery crews not only by driving but also by  
fully participating in the loading and unloading of heavy building supplies.  
[50] Although Mr. Hans’ income had increased with his qualifications, Mrs. Hans  
also re-entered the workforce after returning from India. Initially she went to work at  
McDonald’s for minimum wage in the evening for 25 to 30 hours per week but  
eventually decided to obtain a driving instructor’s license, to earn more.  
[51] She did so and then opened Hans’ Driving school in 2004. She taught mostly  
in the evenings so that she could care for her children during the day but also took  
her daughter with her in a car seat for one to two hours during some teaching  
sessions.  
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[52] Mrs. Hans enjoyed driving and was able to develop somewhat of a niche in  
teaching driving to learner’s with driving disabilities because of her own inability (due  
to her childhood polio) to use her right foot while driving.  
[53] After Mr. Hans obtained his Class 1 Driver’s License with air brake  
certification Mrs. Hans also began to explore the possibility of obtaining such a  
license with intent that she and Mr. Hans could begin to work as a team in the long  
haul trucking business.  
[54] Mrs. Hans saw that as a way by which they could travel and explore North  
America together while earning incomes superior to those they were then both  
earning.  
[55] Although she had no difficulty with any aspect of the work leading to obtaining  
a Class 1 License, her physical disability, that prevents her from using her right foot  
while driving, was a serious impediment.  
[56] Driving a tractor truck required that she drive a specially equipped truck  
modified to allow driving with a left foot gas pedal. It also required a truck with an  
automatic transmission.  
[57] After convincing the provincial licensing authorities to allow her to be licensed  
if she could pass the required testing she sought training instruction. However, no  
driver’s school offered the vehicle that she needed.  
[58] Undeterred, she and Mr. Hans decided to purchase a tractor-truck with a fully  
automatic transmission and have it equipped with a left foot gas pedal extension to  
accommodate her disability. Through NTC they acquired a Volvo 670 tractor-truck  
with an automatic transmission for about $140,000 and had the necessary gas pedal  
extension installed.  
[59] Mrs. Hans then took lessons using that truck and passed the Class 1 driving  
test as well as air brake certification.  
Hans v. Volvo Trucks North America Inc.  
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[60] In June of 2005 Mr. and Mrs. Hans began driving as a long-haul team for  
Right Choice Transport Ltd. out of Surrey driving flat-bed trailers primarily into the  
lower 48 states of the United States of America. Their first major contact in the long-  
haul trucking business was Mr. Ron Collick one of the principals of Right Choice who  
became somewhat of a mentor to the team and more particularly to Mrs. Hans with  
whose drive and business acumen he was greatly impressed.  
[61] Over the next few years, until April of 2008, Mr. and Mrs. Hans worked for a  
number of small sized long haul flat-bed trucking companies, often with Mr. Collick,  
as he himself pursued various opportunities that became available to him.  
[62] As driving partners the plaintiffs shared the work with Mr. Hans doing all of  
the heavy work including pre-load inspection, cargo tie down and cargo covering  
involving the use of heavy tarps and chains to make loads safe.  
[63] Mrs. Hans did all of the necessary paperwork and licencing to allow travel and  
transport into and out of the United States and did route tracking during their delivery  
trips to maximize income by balancing payload potential against cost of  
transportation. The intent was to keep the flat-bed as loaded as possible at all times  
both to and from Surrey for the most profit possible because payment for owner-  
operators was based on a per mile/per load basis.  
[64] Mrs. Hans also undertook customer relations activities on their journeys,  
gathering information from and fostering contacts with suppliers with the intent to  
provide better service and also with the hope of obtaining repeat business directly  
with suppliers rather than brokers where possible.  
[65] Mr. and Mrs. Hans shared the driving with each being limited by regulation as  
to the number of hours they could drive. As a team they could double the potential  
income for the use of their vehicle. At the same time they were able to enjoy their  
travel to new places which they had never seen and enjoy time together pursuing  
what they loved to do.  
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[66] From time to time they were also able to take one or both of their children with  
them on their travels.  
C.  
Incorporation of Sai Transport Inc. and Acquisition of the Volvo  
780  
[67] On July 4, 2007 Mr. and Mrs. Hans incorporated Sai Transport Inc.  
Mrs. Hans testified that the name was derived from “Sai Baba”, a Sikh divinity  
symbolizing their joint belief in hard work and the obligation to share with the less  
fortunate.  
[68] Mrs. Hans testified that the purpose of incorporating Sai Transport Inc. was to  
eventually run a long-haul transport business using the experience she and  
Mr. Hans were gaining in the trucking business. Their goal was to centre the  
business on one truck owned and driven by Mr. Hans and adding owner-operators  
while Mrs. Hans undertook business development and operational logistics by  
acquiring work from her contacts and the use of a computerized load sharing  
program with which she was familiar as well as undertaking all other business  
aspects of the operation.  
[69] The plan was to grow the business slowly possibly by purchasing a second  
truck with a hired driver and also by adding one owner-operator truck per year to a  
total of five to assist Mr. Hans in completing long-haul trucking opportunities they  
believed would be available to them through their hard work and management.  
[70] On December 18, 2007 Mr. and Mrs. Hans traded in their 2005 Volvo 670  
with 633,000 km on it for a new 2009 Volvo 780 (the “Truck”). They acquired their  
second Volvo because of the fully automatic transmission required by Mrs. Hans and  
because the sleeping/living compartment of the Truck was larger and more  
accommodating than that of the old unit.  
[71] The cost of the Truck was $144,750 with about $97,500 remaining payable  
after application of a trade-in allowance of approximately $52,000 for their old  
vehicle. The balance of the acquisition price was financed by way of an open-end  
 
Hans v. Volvo Trucks North America Inc.  
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lease from the former defendant Volvo Financial Services for 48 months requiring  
payments of $2,624.51 per month.  
[72] Mr. and Mrs. Hans continued to work in the flat-bed long haul business in  
early 2008 with a company called Misty Blue Transport. However, they did not  
particularly enjoy the work because of the business practises of the management of  
the operations which did not include Mr. Collick.  
[73] In April of 2008 Mr. and Mrs. Hans joined Yanke as owner-operators with the  
Truck becoming part of Yanke’s fleet.  
[74] Mrs. Hans testified that they made the move to Yanke to work with a larger  
trucking company than they had worked for previously and that had a good  
reputation.  
[75] Mrs. Hans also testified that it gave her and Mr. Hans an opportunity to gain  
experience in “dry-haul” container trucking as opposed to only flat-bed trucking as  
well as the chance to work more Canadian routes as opposed to American ones,  
with intent to gain more knowledge and experience for their future plans with Sai  
Transport Inc.  
[76] Dry-haul trucking for Yanke also paid well and involved less physical work  
than that engaged in the loading, securing, covering and unloading of flat-bed  
trailers.  
D.  
Electrical Problems before the Collison  
[77] The Truck began developing electrical problems relatively shortly after  
Mr. and Mrs. Hans acquired it in late 2007.  
[78] The documentary evidence establishes that: on March 7, 2008, circuit  
breakers were replaced during a safety recall warranty claim; on May 17, 2008,  
batteries were slightly corroded; and on June 17, 2008, electrical difficulties were  
experienced with a harness connector and with corroded batteries that required  
terminal replacement under floor mats.  
 
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[79] Also, on July 4, 2008, while Mr. and Mrs. Hans were travelling through Regina  
at a low speed in daylight hours, all electrical power in the Truck was lost so that the  
vehicle shut down.  
[80] Mr. Hans was able to re-start the engine by “wiggling” the battery cables  
located near the batteries. He then drove the Truck to Sterling Truck and Trailer  
Sales, a Volvo service centre in Regina where it was inspected and where the  
service technicians diagnosed a “blown main fuse”.  
[81] On July 5, 2008, after returning from Regina Mr. Hans took the Truck to  
NTC’s service centre in Surrey. NTC’s warranty repair invoice for its work done on  
July 8, 2008 records that:  
Customer was driving along, lost all power, truck shut down. elec all  
dead…service call from Regina and they found ECM fuse blew, they replaced  
it but did not check for possible cause of fuse blowing. Check over- customer  
concerned that it may recur if there is a wire rubbed etc  
[82] Six months later, on January 20, 2009, NTC tested the batteries in the Truck.  
One failed and it was replaced.  
E.  
The Investigation of the Collison  
[83] Concerning those electrical issues and specifically the events of July 4, 2008  
in Regina, Mr. Chris Hewitt, an Electrical Engineer who was commissioned by Yanke  
to inspect the Truck after the collision, and who testified as an expert witness, stated  
in a report of his investigation:  
The works described on the invoices listed above all relate to electrical  
issues, and seem to relate to one another. It is also interesting that on July 4,  
2008, the main fuse was reported to have blown, but the truck was not towed  
to Sterling Trucks. Without the main fuse, presumably the truck would not  
have functioned. On July 8, the owner asked Pacific Coast Heavy Truck  
Group to try and diagnose the problems reported to Sterling on July 4. Pacific  
Coast were unable to diagnose any issues. It would therefore seem that this  
vehicle has suffered from sporadic electrical issues which appear similar and  
therefore potentially related to the failure on January 31, 2009.  
[84] Not commented upon by Mr. Hewitt in that report, and likely unknown to him  
at the time of his inspection and investigations, is the fact that the day before the  
 
Hans v. Volvo Trucks North America Inc.  
Page 18  
collision the Truck was taken off the road for one day on the return trip from Montreal  
to Surrey because of electrical problems incurred in or near North Bay, Ontario.  
Those problems required that all three batteries be replaced before Mr. and  
Mrs. Hans were able to recommence travel.  
[85] After the total failure of the Truck’s electrical systems on January 31, 2009,  
and the collision caused by that failure the Truck was towed to Yanke’s yard in  
Winnipeg. It was inspected there between February 7 and 10, 2009 by Mr. Hewitt  
before being eventually repaired at Beaver Trucks, the Volvo repair and service  
centre in Winnipeg.  
[86] Inspection of the Truck by Mr. Hewitt was also attended by two other  
engineers, neither of whom testified at trial. Also present were Mr. Todd Davies,  
Volvo’s District Sales Manager and a Beaver Trucks’ Mechanic and Service  
Manager, none of whom testified at trial.  
[87] In the report of his investigation filed at trial but provided much earlier (on  
March 9, 2009) to Yanke, Mr. Hewitt wrote, among other things, that:  
it is my opinion that the following occurred:  
1. The cab positive terminal nut somehow became loose, resulting in  
a poor connection and subsequent resistance heating, which further  
compounded the poor connection, resulting in failure of several key  
vehicle systems. The resistance heating is confirmed by the melted  
insulation and the positive bushing. The size of cable indicates that a  
substantial current may have been flowing through these tables,  
certainly sufficient to cause the melting observed.  
2. Due to failure of cab power, the following critical safety systems  
failed  
a. Headlights (including fog lights),  
b. Engine  
c. Dash lights  
d. Anti-lock brakes  
e. Electronic stability control  
f. Windshield wipers  
g. Automatic transmission  
Hans v. Volvo Trucks North America Inc.  
Page 19  
3. Due to the engine failure, the power steering would also have  
failed.  
At issue is how the cab positive terminal nut became loose. There are a  
number of potential causes:  
1. The nut was not sufficiently tightened by Volvo during initial  
assembly.  
2. The nut was not sufficiently tightened during maintenance.  
3. The nut became loose during operation.  
4. Mega Truck Repair loosened the nut while trying to install the fog-  
lights.  
The cab terminal nut in question is not an item routinely maintained.  
Discussions with the mechanic at Beaver Trucks concluded that if electrical  
faults had been reported to an operator, the cab terminal nut would not be the  
obvious place to trouble-shoot. It is therefore less likely that the nut was  
loosened as part of maintenance and not re-tightened.  
Of concern is the issues the operator reported in May, June and July 2008.  
The fact that the vehicle had suffered from engine failures at this time  
indicates that the nut could have been loose from assembly given that the  
truck is relatively new. It is also possible that the nut loosened due to  
vibration during use. It is noted that the nut is not a locking variety and no  
thread leaking compound was visible. It is therefore possible that the nut  
naturally loosened during use.  
Invoice 14739 proves that the after market fog lights were installed in October  
2008 (after the onset of electrical problems in May, June and July 2008). It  
can therefore be confirmed that while the wiring of the fog lights is  
questionable, it did not contribute to the accident.  
It is not possible to determine how the nut became loose. However, it is  
concerning that essential vehicle operation can be catastrophically affected  
by a simple terminal failure such as that exhibited here. As a minimum, I  
would expect that two nuts are applied to each terminal in a lock nut  
arrangement. Alternatively, a nylon lock nut should be used. Additionally, it is  
strongly recommended that the terminal nuts on all Volvo semi tractors are  
checked as part of routine maintenance by Yanke and all other operators, to  
ensure that they are adequately tight. This issue should be raised with  
Transport Canada who may elect to issue a recall or a notice bulletin.  
[88] I will discuss Mr. Hewitt’s report in more detail together with Mr. Hewitt’s viva  
voce evidence when considering the liability issues in this case.  
F.  
Termination of Employment (February 2009)  
[89] Neither Mr. nor Mrs. Hans sought medical assistance after the Truck was  
taken to Yanke’s yard in Winnipeg for investigation but did spend two days in  
 
Hans v. Volvo Trucks North America Inc.  
Page 20  
Winnipeg before taking a plane to Saskatoon to meet with Yanke’s officials to  
provide a report of the collision.  
[90] The evidence as to what transpired in Saskatoon that day is in conflict, as I  
will discuss in more detail later when considering Volvo’s submissions relating to  
Mr. and Mrs. Hans’ credibility, which he failed.  
[91] For the purposes of this narrative it is, however, sufficient to record that on  
February 4, 2009, Mr. and Mrs. Hans provided a written statement concerning the  
collision. Also, Mr. Hans was required to take a Dangerous Goods Examination to  
allow his continued employment with Yanke.  
[92] Either then or within a few days of failing that test Mr. Hans was advised his  
employment would be terminated by Yanke. That termination was confirmed in  
writing on February 17, 2009.  
[93] After returning to Surrey from Saskatoon Mrs. Hans continued to suffer from  
shoulder and neck pain as well as the effects of a minor concussion for 3 or 4  
months. She testified that those problems were fully resolved within about a year.  
[94] Yanke had not also terminated Mrs. Hans’ employment and, notwithstanding  
her physical complaints arising from the collision, Mrs. Hans attempted to find work  
with Yanke in early March of 2009.  
[95] However, when Mrs. Hans advised Yanke that she could not work as a single  
long haul driver without Mr. Hans, Yanke determined to de-register the Truck from its  
fleet. Yanke also advised Mrs. Hans that it had no work for her for local pick-up and  
delivery as a single driver.  
G.  
Early Medical Assessments Post Collison  
[96] The effect of the collision upon Mr. Hans’ health and life were dramatically  
more serious than those experienced by Mrs. Hans. Although, as I have noted  
above, he did not suffer physical injuries, his treating physicians, psychologists and  
psychiatrists as well as other psychiatrists and psychologists whom he has  
 
Hans v. Volvo Trucks North America Inc.  
Page 21  
consulted and whose expert evidence was adduced all agree that Mr. Hans has  
suffered highly debilitating emotional, mental and social effects of PTSD caused by  
the collision.  
[97] After the collision Mr. Hansfirst visit to his family physician, Dr. Baldev  
Dhillon, was on February 17, 2009.  
[98] Dr. Dhillon’s report and his clinical notes are consistent with Mr. and  
Mrs. Hans’ evidence concerning Mr. Hans’ medical and emotional condition from the  
time of the collision until early April of 2009.  
[99] In his expert report dated August 20, 2015, Dr. Dhillon wrote:  
Mr. Hans was seen on February 17, 2009. At which time an initial  
consultation into the motor vehicle accident was conducted. He stated that  
since the accident he felt numbness to his head with decreased memory. He  
also felt "numb". He felt scared from time to time and he felt as if he had to  
check to see if he was alive. He did not have any suicidal ideation or attempt.  
He did not have any homicidal ideation or attempt. He was given a  
preliminary diagnosis of posttraumatic stress disorder. He was also started on  
Paxil 10 mg at bedtime and he was advised to followup [sic.] in a couple of  
weeks to see how the medication was working out for him.  
Mr. Hans was seen on March 4, 2009. He had complaints of feeling tension  
and tightness in his chest. He had felt that for few minutes the previous night  
as well. His examination was essentially normal. Paxil was increased to 20  
mg at bedtime. He was also sent for electrocardiogram.  
Mr. Hans was seen on March 6, 2009. He still has chest pain on an  
intermittent basis. He stated that he felt anxious. He was provided  
reassurance and advised to continue with Paxil 20 mg at bedtime. [H]e was  
also given a prescription for Ativan sublingual as needed for anxiety-type  
symptoms.  
Mr. Hans was seen on April 4, 2009. He had complaints of numbness to his  
scalp and having trouble with his memory. He states that all of this had  
started after the motor vehicle accident. He states that he has recurrent  
flashbacks from the motor vehicle accident. He has a hard time falling asleep  
as well. He did not have any suicidal ideation or any attempts. He did not  
have homicidal ideation or any attempts. Paxil was increased to 30 mg at  
bedtime. Counseling was provided.  
[100] Dr. Dhillon’s reference to his “preliminary diagnosis of post-traumatic stress  
disorder” made on February 17, 2009 must be read with the understanding, arising  
from clarification of his report in his testimony at trial, that for a confirmed diagnosis  
Hans v. Volvo Trucks North America Inc.  
Page 22  
of PTSD the symptomology associated with the disorder must have been present for  
at least 30 days following the traumatic triggering event.  
[101] Since Dr. Dhillon’s diagnosis was made less than two weeks after the  
collision that pre-condition to a confirmed diagnosis was not yet present. However,  
sufficient other symptoms to meet the criteria for a confirmed PTSD diagnosis under  
the then operative Diagnostic and Statistical Manual of Mental Disorders, 4th Edition  
(DSM IV) were met.  
H.  
Failure to Provide Report of Investigation; Repair of the Truck;  
Demand for Payments Under Lease; and, Sale of the Truck after  
Seizure (February 2009 to November 2009)  
[102] As I have noted above, at about the same time that Mr. and Mrs. Hans  
returned to Surrey after their meetings in Saskatoon with Yanke on February 4,  
2009, Yanke engaged Mr. Hewitt to investigate the cause of the electrical failure that  
led to the collision on January 31, 2009.  
[103] Inexplicably, neither Yanke nor Volvo invited Mr. or Mrs. Hans to participate  
notwithstanding the loss suffered was to the Truck which they had acquired from  
NTC and which was financed by Volvo Financial Services.  
[104] Also inexplicably, neither Yanke nor Volvo released Mr. Hewitt’s report to the  
plaintiffs notwithstanding Mrs. Hans’ repeated requests for information about the  
cause of the collision.  
[105] Those requests were made by Mrs. Hans to Ms. Grigorovich of Yanke as well  
as to Volvo Financial Services which referred her to a 1-800 number for Volvo  
Trucks which did not return her calls.  
[106] Notwithstanding these unanswered requests for information from February to  
April 2009, Volvo Financial Services wrote to Mr. Hans on April 3, 2009, demanding  
payment of the past due lease payments for the Truck in the amount of $4,219.44.  
The demand required payment of that amount within 7 days failing which Volvo  
 
Hans v. Volvo Trucks North America Inc.  
Page 23  
Financial Services demanded claim of $102,785.21 as payment in full under the  
lease purchase agreement.  
[107] Mr. and Mrs. Hans did not make the overdue payments. They were not  
working but were also not prepared to pay further any amounts under the lease until  
they were satisfied that the Truck was safe to operate.  
[108] Finally, on April 20, 2009, after many requests for information by Mrs. Hans,  
Ms. Grigorovich wrote a letter to Mrs. Hans in which she stated:  
This letter follows our previous telephone discussion of April 17, 2009.  
Following your accident of January 31, 2009, the Yanke Group of Companies  
retained the services of an engineering firm to assist us in determining the  
cause of the catastrophic electrical failure, which ultimately led to the above  
noted accident. This analysis was crucial, given the previous history of  
electrical problems with your truck, dating back to May, June and July, 2008.  
The analysis was undertaken in Winnipeg, MB in the presence of Volvo’s  
District Services Manager and our Director of Fleet Assets/Maintenance.  
Following the engineer’s undertaking and analysis, it would appear that the  
cab positive terminal nut somehow became loose, resulting in a poor  
connection and subsequent resistance heating, which, further compounded  
the poor connection. The resistance heating was confirmed by the melted,  
insulation and the positive bushing, which is believed to have ultimately led to  
the failure of several key vehicle systems, including the following:  
a) Headlights (including fog lights)  
b) Engine, with the potential for subsequent loss of power steering  
c) Dash lights  
d) Anti-lock brakes  
e) Electronic stability control  
f) Windshield wipers  
g) Automatic transmission  
The critical question is how the cab positive terminal nut became loose and  
this particular aspect can not be conclusively determined. Given that the  
essential vehicle operation can be catastrophically affected by a simple  
terminal failure, we are currently in discussions and working with Volvo  
Corporate to attempt a resolution. We will continue to keep you informed of  
developments and trust the foregoing will be found to your satisfaction.  
Hans v. Volvo Trucks North America Inc.  
Page 24  
[109] Unsatisfied with that response Mr. and Mrs. Hans retained counsel,  
Mr. Robbie Fleming, who also unsuccessfully sought delivery of Mr. Hewitt’s full  
report.  
[110] Mr. Fleming also sought information concerning Yanke’s discussion with  
Volvo concerning a possible resolution of the issues related to the collision. In doing  
so he sought information as to how any resolution could occur without Mr. and  
Mrs. Hans’ involvement.  
[111] However, as noted, and notwithstanding these many inquiries, Mr. Hewitt’s  
report was not delivered to them until Mr. and Mrs. Hans had commenced this  
litigation.  
[112] In addition, Yanke and Volvo continued to deal directly with one another  
without any participation by Mr. and Mrs. Hans or their lawyer.  
[113] Eventually, without any input from the plaintiffs, repairs to the Truck which  
included work done at Beaver Trucks, were undertaken and completed by May 7,  
2009.  
[114] In that repair process all evidence related to the cause of the electrical failure,  
other than Mr. Hewitt’s report and photographs taken during his investigation, was  
destroyed.  
[115] When Yanke advised Mr. and Mrs. Hans that the Truck was ready to be  
picked up at Yanke’s maintenance facility in Winnipeg on May 7, 2009, answers to  
their continuing inquiries concerning the cause of the electrical failure or the  
negotiations with Volvo had still not been provided.  
[116] Due to those unanswered questions and their ongoing concerns with the  
Truck’s roadworthiness and safety, the plaintiffs decided not to re-take possession of  
it. They believed that the information that had been provided to them, that the cause  
of the failure was a “loose nut”, was incomplete and did not inform them of the risks  
associated with re-taking possession of the Truck.  
Hans v. Volvo Trucks North America Inc.  
Page 25  
[117] Without success, Mr. Fleming continued to make inquiries on their behalf after  
May 7, 2009.  
[118] Notwithstanding Mr. Fleming’s unanswered requests for information coupled  
with his assertions that Yanke did not have authority to affect the plaintiffs’ interests  
in the Truck, Yanke wrote a letter to Volvo on July 3, 2009, stating:  
As you are already aware, we had an incident with a 2008 Volvo VNL-780  
serial # 4V4NC9EJ28N498773.  
The incident, which resulted in a single vehicle accident due to a total loss of  
electrical power caused us to make repairs to both the tractor and trailer. The  
costs associated with the repairs are on the attached form and total  
$44,054.27.  
As per your commitment to cover these expenses, please accept this letter as  
our formal request for payment for the $44,054.27.  
[119] The amount claimed by Yanke included the cost of Mr. Hewitt’s investigation  
and report. Volvo eventually paid the amount claimed by Yanke in return for a  
release from Yanke.  
[120] When Mr. and Mrs. Hans continued to refuse to pick up the Truck, Volvo  
Financial Services sold it.  
[121] Mr. and Mrs. Hans were notified of that sale on November 11, 2009 by a letter  
of that date. It stated:  
You failed to cure the default. As a result, a sale of the property securing the  
debt was held. The property sold for $77,000.00, thereby leaving a deficiency  
balance of $7,443.08, as at the date of sale (being February 3, 2006 [sic]).  
The total amount owing, which is detailed in the attached schedule “A”, as of  
the date of this letter is $7,443.08 plus interest at the rate of 18% per annum  
hereafter.  
[122] Mr. Hans’ anger at Yanke and Volvo, because of their treatment of him in  
“ruining my life” because of what he came to call the “death truck”, deepened over  
time and as his emotional and mental state continued to deteriorate, his ability to  
earn income became more and more compromised.  
Hans v. Volvo Trucks North America Inc.  
Page 26  
[123] Mr. Hans continued to be unable to put the thoughts of the collision behind  
him. Re-occurring thoughts of the collision and its negative effects upon him and his  
life and inability to provide for his family became pervasive and dominated all of his  
familial and social relationships.  
I.  
Attempts to Drive Commercially (Fall of 2009 to September 2011)  
[124] Mrs. Hans testified that during the summer of 2009 Mr. Hansemotional and  
mental state remained severely compromised by the effect of the collision. She  
testified that if he had been able to work they would have returned to work and that  
there would have been “lots of work” available to them.  
[125] Concerning his behaviour Mrs. Hans testified that Mr. Hans was totally  
different than before the collision. He was no longer an active participant in his  
children’s lives; looked lost and scared; was sad and withdrawn from her and his  
friends and was not sleeping. He was also constantly re-living the collision in his  
dreams and in his communication with her, his family and friends.  
[126] By the fall of 2009 Mrs. Hans became frustrated and began remonstrating  
with Mr. Hans to “pull out of his funk”. She said things like “I was there too and I am  
feeling better”… “We are alive”… “Shake it off” – all without success.  
[127] Mr. Hans continued to be withdrawn socially and uninvolved in family life. He  
stopped sharing child care, yard work, cleaning, cooking, shopping and driving the  
children to school. Mrs. Hans had to do it all.  
[128] Because the family had not had any income since the collision and needed  
money to “put food on the table” as well as in an attempt to get Mr. Hans back on  
track, Mrs. Hans decided they must return to driving without their own Truck. It had  
not yet been sold by Volvo Financial Services, but they still considered it unsafe.  
[129] Mrs. Hans arranged with Mr. Hans’ brother for them to do some part time  
relatively short haul driving with a truck he owned. She testified that, although in the  
beginning she was fearful of driving even with that different truck, after a few weeks  
 
Hans v. Volvo Trucks North America Inc.  
Page 27  
she lost that fear. She hoped that the same would occur with Mr. Hans, but it never  
did.  
[130] Mr. and Mrs. Hans drove commercially primarily on routes to Washington and  
California for about two years between the fall of 2009 and the fall of 2011. They  
were, however, able to do so only because Mrs. Hans forced the issue in her  
attempts to have Mr. Hans “get out of his funk”, and because she took on a greater  
portion of the workload.  
[131] Mrs. Hans testified that while driving through mountains or even on flat  
stretches Mr. Hans would often brake suddenly for no reason. When she asked why  
he had done that, he said things like “I thought the engine stopped” or “What if it shut  
down?” The sudden stops, especially in the mountains, were so dangerous that  
Mrs. Hans began doing that driving. She also began to do all of the night driving  
rather than the daylight driving that she had done before the collision.  
[132] In order to continue to be able to work and keep earning money as a team,  
Mrs. Hans also began to do more than 50 percent of the driving. She did so by not  
complying with regulations concerning how many hours she could drive in any day  
and by not getting the mandatory amount of rest.  
[133] To avoid detection she altered the log books and went from driving 50 to 60  
and then to 70 percent of the time over that period of about two years with hopes  
that Mr. Hans would recover.  
[134] Instead, Mr. Hans became increasingly withdrawn, angry and obsessed with  
Volvo, Yanke and the “death truck” that had ruined his life.  
[135] In January of 2011, Mr. Hans’ father died and Mr. and Mrs. Hans returned to  
India for his funeral.  
[136] Mrs. Hans testified that even in India with his old friends and in his home  
village, when his focus ought to have been on his father’s life and death, Mr. Hans’  
constant topic of discussion was the collision and the impact of it upon their lives.  
Hans v. Volvo Trucks North America Inc.  
Page 28  
[137] Mr. and Mrs. Hans’ very good friend, Mr. Parmjit Hans (who is not a relative)  
who had once been Mr. Hans’ roommate in college, testified that during that visit to  
India in January of 2011, Mr. Hans was wholly unlike his former self. He appeared  
unkempt and lost and did not react to his father’s death in the way he would have  
expected. He said Mr. Hans talked constantly about the accident, how he had hardly  
survived it and that “something had happened to his head”.  
[138] In May of 2011, Parmjit Hans also immigrated to Canada. He testified that  
after he arrived Mr. Hans did not visit him often, and when he did, he did not talk  
much.  
J.  
Cessation of Driving and Suicide Attempts (September of 2011 to  
September 2012)  
[139] In September of 2011 Mr. Hans stopped driving.  
[140] Dr. Dhillon’s expert report of August 20, 2015 is instructive as to Mr. Hans’  
condition at that time and is consistent with Mrs. Hans’ evidence.  
[141] Concerning Mr. Hans’ attendances upon him on September 21, 2011 and  
October 4, 2011, Dr. Dhillon wrote:  
Mr. Hans was seen on September 21, 2011. He stated that he had a lot of  
anxiety type symptoms and had trouble with sleep. He was only sleeping  
about three hours, even when taking the Amitriptyline. He had no auditory or  
visual hallucinations. He had repetitive thoughts about his accident with his  
truck. He kept thinking about how it happened and that there had not been  
any closure as of yet in regards to it. He had some delusional thoughts as  
well at this time and was incoherent in his speech as per his wife. On  
examination, he had no suicidal ideation or attempt and no homicidal ideation  
or attempt. He was advised to start Seroquel, discontinue the use of  
Amitriptyline and to return to the clinic in one week. He was also advised not  
to drive until his follow up with myself.  
Mr. Hans was seen on October 4, 2011. He stated that he had been sleeping  
for about four hours per night since starting the Seroquel. He had still been  
rambling on about various different aspects of the accident. He had a lot of  
financial issues since the accident occurred. He stated that he felt like sitting  
in a quiet place all of the time. On examination, he had no suicidal ideation or  
attempt and no homicidal ideation or attempt. He was advised to start  
Cipralex and to continue the use of Seroquel.  
 
Hans v. Volvo Trucks North America Inc.  
Page 29  
[142] Unfortunately, Dr. Dhillon’s assessments that Mr. Hans was not suffering  
suicidal ideation on October 4, 2011 proved to be incorrect.  
[143] On October 5, 2011, Mr. Hans rose from his sleep, went to a downstairs  
bedroom, tied one end of a scarf around his neck and the other to a ceiling fan.  
Fortunately, Mrs. Hans awoke, followed him and interrupted him. He jumped off the  
bed on which he was standing but the scarf proved to be too long for a successful  
suicide.  
[144] Mr. Hans was then immediately admitted to Surrey Memorial Hospital where  
he remained for 6 weeks before being discharged on November 21, 2011.  
[145] During that time Mrs. Hans continued to drive commercially but to a limited  
extent.  
[146] Mrs. Hans testified that when Mr. Hans was discharged from hospital he was  
very quiet and sad and stayed in bed a lot but did not appear suicidal to her.  
[147] Concerning an attendance by Mr. Hans on November 24, 2011, Dr. Dhillon  
wrote:  
Mr. Hans was seen on November 24, 2011. He had just been discharged  
from the Surrey Memorial Hospital Psychiatry Unit for major depression with  
suicidal ideation. He had been given Celexa, Divalproex, Seroquel, Effexor  
and Zopiclone. He had no suicidal ideation or attempts since his discharge.  
He was still thinking about the accident daily and had issues with his memory.  
On examination, he had no suicidal ideation or attempt and no homicidal  
ideation or attempt. He was advised to continue with current management,  
was provided with the number for and was referred to Surrey Mental Health.  
In December Mrs. Hans again tried to have Mr. Hans drive with her. He then  
told her he did not want to drive again.  
[148] On December 12, 2011, Mr. Hans again saw Dr. Dhillon. Of that visit  
Dr. Dhillon wrote:  
Mr. Hans was seen on December 12, 2011. His wife had taken him to a trip  
on their long haul truck. He had increased dreams about the accident and this  
would wake him from his sleep. He had increased suicidal thought and had  
even mentioned to his wife that maybe he, his wife and kids should have got  
into a car a [sic] driven themselves into the river. He had not acted on any of  
these thoughts. He felt anxious at times as well and was not sleeping well at  
Hans v. Volvo Trucks North America Inc.  
Page 30  
all. His medication regime at that time was not working out for him. On  
examination, he had suicidal and homicidal ideation but no attempts. He was  
advised to increase the dose of Effexor, and to go to the emergency  
department if he had increased suicidal thoughts and if there were safety  
issues at home.  
[149] Dr. Dhillons notes are again consistent with Mrs. Hansevidence.  
[150] After his attendance on Dr. Dhillon on December 12, 2011, Mr. Hans was  
again admitted to Surrey Memorial Hospital’s Psychiatric Assessment Unit. His  
existing medications were stopped and a new regime was put in place.  
[151] According to the records of the Surrey Memorial Hospital of December 15,  
2011, Mr. Hans:  
snuck out of PAU and went to the open ward and tried to hang himself in  
the same fashion as his previous admission. He tried to hang himself from  
the curtain rod of the divider between patient beds. That rod and that curtain  
are absolutely unable to sustain the weight of an individual like Amandeep.  
He was seen by staff and brought back to PAU.  
[152] Mr. Hans remained in hospital on that second admission until January 9,  
2012.  
[153] After being discharged on that date Mr. Hans was seen often by Dr. Dhillon  
until September of 2012, with little or no improvement in his psychological status.  
[154] Also, from March of 2012 until August of 2012, Mr. Hans was seen regularly  
by Dr. J.S. Sandhu, a psychiatrist, to whom he was referred by Dr. Dhillon. Medical  
records in evidence establish that in that six-month period Mr. Hans attended upon  
Dr. Sandhu’s office for psychiatric services on 20 occasions.  
[155] Dr. Dhillon’s report and his clinical records for the period from January 9,  
2012 to August of 2012 indicate that after being discharged from Surrey Memorial  
Hospital’s Psychiatric Unit for the second time, although suicidal ideation was at  
times present Mr. Hans had not acted upon it. They also, however, indicate that  
Mr. Hans continued to suffer from the same medical difficulties he had experienced  
Hans v. Volvo Trucks North America Inc.  
Page 31  
since the collision notwithstanding significant psychiatric consultation and  
pharmaceutical intervention by Dr. Sandhu.  
[156] More specifically, Dr. Dhillon reported that during that period at various times  
and often frequently, Mr. Hans suffered from feelings of isolation; did not want to  
speak to anyone; felt low and had very low energy levels; was withdrawn with low  
mood; had recurrent nightmares about the collision which made him wake-up with  
difficulty in getting back to sleep; at one time in late April suffered from some  
paranoid type delusions; felt anxious and depressed throughout the day and spent  
most of his time in a dark room; and, was depressed about his inability to earn  
income for the family and the burden he had become upon his wife.  
[157] In the summer of 2012, Parmjit Hans, Mr. Hans’ friend and college roommate  
separated from his wife. After that separation, he became Mr. Hans’ almost constant  
companion when he was not himself at work as a truck driver.  
[158] For a time Parmjit Hans moved in with the Hans family and was paid $1,000  
per month by Mrs. Hans and provided with room and board to help to supervise  
Mr. Hans while she was working or otherwise unable to be at home, usually because  
of the children’s needs. She made those arrangements with Parmjit Hans because  
of her continuing fear that Mr. Hans would again try to harm himself.  
[159] After Parmjit Hans undertook those supervising tasks in the summer of 2012,  
he provided companionship and supervision of Mr. Hans for between 20 and 25  
hours a week when he had time or when he was called to do so.  
[160] Although Parmjt Hans was initially paid for that supervision assistance as  
well as for driving the children when necessary, he continued to provide similar  
dedicated assistance without any compensation after he moved out of the Hans’  
home and into his own accommodation. The new accommodation was sufficiently  
nearby that he could still assist.  
[161] Notwithstanding the intensive medical intervention by Dr. Sandhu and  
Dr. Dhillon in 2012 and the help provided by Parmjit Hans in conjunction with  
Hans v. Volvo Trucks North America Inc.  
Page 32  
Mrs. Hansown efforts, Mr. Hans was again hospitalized in late August of 2012 after  
expressing suicidal intent and exhibiting bizarre behaviour.  
[162] On the day that resulted in that return to the hospital, Parmjit Hans was with  
Mr. Hans who seemed very uneasy. Parmjit Hans decided to take Mr. Hans to the  
Nanaksar Gurdwara Sikh Temple in Richmond hoping to provide his “mind with  
some relief.”  
[163] Parmjit Hans testified that on the way back from the Temple when driving  
over the Alex Fraser Bridge Mr. Hans asked him to stop and drop him off on the  
bridge.  
[164] When Parmjit Hans did not stop but asked Mr. Hans what he wanted to do he  
testified that Mr. Hans said “I consider myself a burden on my family…I am not able  
to do anything for my children and won’t be able to…I want to kill myself.”  
[165] Parmjit Hans then drove Mr. Hans home where they sat and Parmjit Hans told  
him not to worry before excusing himself to go to the washroom. When he did so,  
Mr. Hans left the home. When Parmjit Hans learned from Mrs. Hans that Mr. Hans  
had left, he quickly went out to follow him, all the while keeping in telephone contact  
with Mrs. Hans.  
[166] Mr. Hans walked away from Parmjit Hans and then abruptly turned onto some  
railway tracks walking at a pace that Parmjit Hans could not match. When he told  
Mrs. Hans what was happening he learned from her that she had called 9-1-1 and  
was herself coming by car.  
[167] Before Mrs. Hans arrived the police apprehended Mr. Hans and took him to  
the Surrey Memorial Hospital. Mrs. Hans also went to the hospital while Parmjit  
Hans returned to the Hanshome to look after the children.  
Hans v. Volvo Trucks North America Inc.  
Page 33  
[168] Mr. Hans remained in the hospital that time for three weeks. After being  
discharged he saw Dr. Dhillon on September 20, 2012. Concerning that visit  
Dr. Dhillon wrote:  
He had been admitted to the psychiatric ward for the past three weeks. This  
was for active suicidal ideation with attempt. He was very isolative and very  
quiet. He felt like his energy levels were very low. On examination, he had  
suicidal ideation with no attempt; he had no homicidal ideation or attempt. He  
had a flat affect and was very non-verbal. He was advised to follow up with  
Dr. Sandhu and to continue the use of his current medications.  
K.  
Life since Last Suicide Attempt  
[169] After that visit Dr. Dhillon together with Dr. Sandhu referred Mr. Hans to  
another psychiatrist, Dr. Jogi Harrad, who saw Mr. Hans for the first time on  
October 4, 2012. Dr. Harrad has been Mr. Hanstreating psychiatrist since that visit.  
He has seen and counselled Mr. Hans almost weekly since then and continues to do  
so.  
[170] Dr. Harrad wrote a medical legal report dated April 24, 2013. He also testified  
at trial about that report and, as his treating psychiatrist, provided updated  
information about Mr. Hans’ condition to the date of trial.  
[171] In his report Dr. Harrad wrote:  
Recently he was hospitalized in August 2012 for three to four weeks  
because of suicidal thoughts with plan of jumping from Pattullo [sic] Bridge.  
Mr. Hans was discharged on Clonazepam 2mg and 0.5mg hs [anti-anxiety  
and sedation medication], Remeron 45mg hs [anti-depression; anti-anxiety  
and sedation medication], Risperdal 1mg am and 2 mg hs [anti-psychotic  
medication for extreme anxiety and agitation, and hearing of voices], Effexor  
XR 150mg bid [for anxiety and depression], Imovane 15mg hs [for sleep].  
Mr. Hans does not have any problems with drinking or drugs. he does not  
have any symptoms of high mood symptoms or mania. Not having any  
delusional thinking but he always hear noises of tires of his truck. Almost  
every day he thinks about his accident. He spends a lot of time thinking about  
his life. Mr. Hans is socially isolated and is not going to anybody’s house. He  
is not inviting anybody to his home. He is getting angry and frustrated. He is  
very sensitive to noise. Mr. Hans categorized himself as being a religious  
person and goes to Sikh temple on a daily basis. He is also doing prayers.  
 
Hans v. Volvo Trucks North America Inc.  
Page 34  
[172] Dr. Harrad testified that in his opinion a gradual worsening of psychiatric  
symptoms is common with those who suffer from PTSD. He explained that he  
believes Mr. Hans was initially in some denial concerning the symptoms he suffered  
after the collision and that his limited success and capacity in trying to work, together  
with the ongoing PTSD symptoms he was experiencing, increased the level of his  
distress and led to acute relapse, suicidal ideation and eventually to his active  
attempts to commit suicide.  
[173] Dr. Harrad further testified that the prescribed combinations of medication  
was necessary for the control of Mr. Hans’ severe psychiatric symptoms and to  
attempt to prevent him from actively acting upon his pervasive suicidal thoughts.  
[174] Dr. Harrad also testified that the combination of medications has changed  
over the years before trial and that Mr. Hans now takes the following regimen of  
medications:  
1) Trazadone 150 mg taken at bedtime for sleep control;  
2) Serequel 200 mg (anti-psychotic intended to address hearing noises and for  
some sleep assistance) taken at bedtime;  
3) Clonazepam .5 mg taken at bedtime for anxiety and sleep;  
4) Effexor R 75mg taken twice per day for anxiety, depression and PTSD;  
5) Epival 250 mg taken twice per day for control of anger;  
6) Ativan 1mg taken sublingually as needed for immediate control of agitation  
and panic.  
[175] Dr. Harrad testified that while some treatment success could be measured by  
the fact that Mr. Hans had not again attempted suicide since the summer of 2012,  
his underlying psychiatric symptoms continue to persist. He testified that significant  
intervention with medication must be continued because Mr. Hans still suffers from  
Hans v. Volvo Trucks North America Inc.  
Page 35  
moderate to severe symptoms of depression and PTSD which remain very difficult to  
treat.  
[176] As a Punjabi speaking psychiatrist of South Asian descent, Dr. Harrad also  
offered insight into how cultural concerns can negatively impact attitudes towards  
mental illness to the detriment of treatment.  
[177] Dr. Harrad testified that it is not uncommon in Mr. Hans’ cultural community  
for a person who is exhibiting symptoms of mental illness, such as not being able to  
converse normally, to be treated poorly by others and for that person to try to hide  
his or her symptoms and also not seek help because of the stigma attached to  
mental illness.  
[178] In that regard, Mrs. Hans also testified that she did not appreciate the depth  
of Mr. Hanssuffering when she prodded him into going back to driving in the hope  
that doing so would help him “get out of his funk”. With the experience she has  
gained, she now regrets her actions.  
[179] Under the heading “Prognosis” it was Dr. Harrad’s opinion in April of 2013  
that:  
Due to the nature and severity of Mr. Hans’ psychiatric illness, he is not  
stable to be employed at any job. He is not a suitable candidate at this time to  
be considered participating in vocational rehabilitation program. His progress  
is very, very slow. He needs 24 hour supervision by family members to  
protect him from suicide attempts. It will take a few years to stabilize and  
bring Mr. Hans' psychiatric disorder in remission. Even if Mr. Hans is  
stabilized, it will be risky and impossible for him to be employed as a truck  
driver. His prognosis is poor. Mr. Hans will remain at high risk of attempting  
suicide mainly due to his psychiatric illness and ongoing litigation against  
Volvo and Yanke Group of Companies. Mr. Hans will have to live with this  
lifelong psychiatric illness and to be maintained on medication for the rest of  
his life.  
[180] Since that opinion was given in April of 2013, Dr. Harrad has continued as  
Mr. Hanstreating psychiatrist and, except for intervals in the summer of 2013 (June  
to early September) and spring of 2014 (April to June) during which Mr. Hans  
travelled to India, he has seen Mr. Hans weekly and will continue to see him weekly  
for the foreseeable future.  
Hans v. Volvo Trucks North America Inc.  
Page 36  
[181] Dr. Harrad testified that Mr. Hans’ prognosis remains poor. He testified also  
that his hopes that remission would occur within a few years have not been realized  
and that Mr. Hans continues to need 24 hour supervision by a family member or  
others because of his past suicide attempts and continuing symptoms.  
[182] Dr. Harrad further testified that the present medication regime he has  
prescribed will continue into the future with such modification as may be necessary  
to address Mr. Hans’ psychiatric symptoms. He is also considering referring  
Mr. Hans to a pharmacology expert for assistance in his future medicinal treatment  
of Mr. Hans.  
[183] Since Mr. Hans’ last suicide attempt in August 2012 he has not only been  
under Dr. Harrad’s weekly care but has also been closely supervised, primarily by  
Mrs. Hans and Parmjit Hans.  
[184] Mr. and Mrs. Hans’ downstairs neighbour, Ms. Sarjit Kaur Bilan, also looks in  
on Mr. Hans as necessary when Mrs. Hans or Parmjit Hans are not available  
because of work or other commitments. Mrs. Hans is also in constant telephone  
communication with Mr. Hans and has tried to find work which allows her flexible  
hours so that her time away from him is as limited as possible. She continues to  
perform virtually all household and childcare responsibilities, including the driving of  
the children to school and outside activities.  
[185] Deepkaran Hans is now playing hockey at a relatively high level for his age  
with some success. Ashleen Hans is involved in competitive Bhangra team dancing.  
Those activities and especially Deepkaran’s hockey practises and games require a  
significant amount of driving. When she cannot do that driving Mrs. Hans engages  
the assistance of other parents or that of Parmjit Hans so that the children do not  
miss out on their activities.  
[186] Mr. Hans has had very little interest in his children’s activities since the  
collision. He has not seen Ashleen dance and only lately, with the coaxing of Parmjit  
Hans, has begun attending some of his son’s hockey games.  
Hans v. Volvo Trucks North America Inc.  
Page 37  
[187] Since Mr. Hans’ first suicide attempt in October of 2011 he has not worked.  
Mrs. Hans, however, undertaken various work to “to put food on the table”. She has  
attempted to obtain flexible working hours and conditions to allow her to be able to  
attend upon Mr. Hans because of his needs.  
[188] More specifically, Mrs. Hans has been employed:  
1) As a commercial truck driver from when Mr. Hans was hospitalized, when  
he was supervised in hospital, until early January of 2012.  
2) In the summer of 2012, as a part time driver of labourers for a blueberry  
farm working approximately one and one-half hours each morning and  
evening near her home.  
3) In September of 2012, as a school bus driver for the Khalsa School for  
about one month also for about one and one-half hours twice per day.  
That employment ended when she injured her left knee. After that injury  
she received benefits from the WorkersCompensation Board (WCB  
benefits) both before and after surgery to her knee.  
4) From January to April of 2014, while still disabled with her knee injury, by  
the Canada Revenue Agency (CRA) at a call centre at $20 per hour.  
During that time her WCB benefits were suspended and when the CRA  
job ended she received a partial disability settlement from WCB for her  
injuries.  
5) After ceasing work with the CRA by re-starting her driving school business  
which allowed flexible hours. She also took an interpreter course and  
worked as an interpreter at rehabilitation clinics and doctor’s offices for the  
remainder of 2014; and  
6) From January of 2015 until June of 2015, full time as a dispatcher for  
Habib Trucking, a transport company with 14 to 15 trucks, at $25 per hour.  
That work allowed flexibility to the extent of easy telephone contact with  
Hans v. Volvo Trucks North America Inc.  
Page 38  
Mr. Hans and the ability to leave work and attend upon him if necessary. It  
ended in June of 2015 when she was pregnant with the Hans’ third child  
and developed medical complications.  
[189] After their daughter was born in August of 2015, Mrs. Hans went on maternity  
leave and was still on maternity leave during the trial of this action.  
[190] Mr. Hans remains unable to work and does not drive even a passenger  
vehicle. He remains dependent upon Mrs. Hans or Parmjit Hans for transportation  
and remains socially isolated from his former good friends and is now also estranged  
from his mother and brother.  
[191] In addition to Drs. Dhillon and Harrad, since his last suicide attempt Mr. Hans  
has also seen a number of other health professionals, both for therapeutic  
assistance and for medical-legal reasons.  
[192] I will discuss the evidence of those medical professionals in detail when  
considering Mr. Hans’ claims for damages for his non-pecuniary loss, cost of future  
care and lost earning capacity.  
V.  
CREDIBILITY  
[193] Volvo generally accepts that Mr. Hans is now disabled from work and is also  
now a much changed person from that which he was before the collision. Volvo also,  
however, submits that the plaintiffs have greatly exaggerated the nature of the  
injuries suffered by Mr. Hans and their effect upon his life in an attempt to obtain  
excessive compensation.  
[194] Volvo’s submissions concerning the alleged deliberate exaggeration of the  
nature and extent of Mr. Hans’ injuries and their effect upon the lives of both Mr. and  
Mrs. Hans are all based upon an attack levelled against the plaintiffs’ credibility.  
[195] That attack focuses primarily upon Mr. and Mrs. Hans’ evidence in respect of  
five specific areas in respect of which Volvo alleged either exaggeration or deliberate  
untruthfulness.  
 
Hans v. Volvo Trucks North America Inc.  
Page 39  
[196] Those five areas relate to:  
1) Conflicts in the evidence between Mr. and Mrs. Hans and that of  
Mr. William Kalbhenn, then Yanke’s Director of Fleet Planning and  
Recruiting concerning Mr. Hans’ condition at the time of their meetings in  
Saskatoon on February 4, 2009 after the collision.  
2) The evidence of Mrs. Hans and, to a lesser extent, that of Mr. Hans that  
they had to sell their home because of the collision and the termination of  
Mr. Hans’ employment.  
3) The sincerity of Mr. Hans’ suicide attempts.  
4) The extent to which Mr. Hans has been supervised by Mrs. Hans and  
others since his first suicide attempt, including with regards to his trips to  
India in 2013 and 2014.  
5) Surveillance video of Mr. Hans’ activities in the community recorded on  
four days in May and June of 2015.  
[197] I will next discuss each of those areas and how they impact my consideration  
of credibility of Mr. and Mrs. Hans both specifically and generally.  
A.  
Mr. Hans’ Condition at the Time of the Meetings with Yanke in  
Saskatoon  
[198] On February 4, 2009, three days after the collision, Mr. Hans provided a  
statement concerning the collision.  
[199] Mrs. Hans testified that when Mr. Hans gave the statement in Saskatoon, he  
was assisted by her by interpreting as well as by participating. She also testified that  
they were told that Mr. Hans would be required to take and pass a Dangerous  
Goods Examination before he could continue to be employed by Yanke.  
[200] Mr. and Mrs. Hans both testified that Mr. Hans told the Yanke representatives  
that day that his head felt numb and that he did not think he could pass the exam but  
 
Hans v. Volvo Trucks North America Inc.  
Page 40  
that Yanke insisted that he take it. They further testified that Mr. Hans then took the  
exam, was told he had failed and that his employment was terminated because of  
that failure.  
[201] Volvo adduced the evidence of Mr. Kalbhenn, then Yanke’s Director of Fleet  
Planning and Recruiting as well as the evidence of Ms. Grigorovich, Yanke’s  
Director of Human Resources and Risk Management whom Mrs. Hans had  
contacted from the scene of the collision.  
[202] Neither is still employed by Yanke or its successor.  
[203] Ms. Grigorovich did not offer any evidence concerning Mr. or Mrs. Hans’  
attendance in Saskatoon after the collision or with respect to Mr. Hans’ condition or  
appearance.  
[204] Mr. Kalbhenn did. He testified that he met with Mr. and Mrs. Hans three times  
that day. He said the first meeting was in the morning when he explained that there  
would be a formal interview later that day concerning the collision; the second was  
during that interview; and the third concerned the need for Mr. Hans to take the  
Dangerous Goods Examination.  
[205] Mr. Kalbhenn testified that during the first encounter he asked Mr. and  
Mrs. Hans if they were okay and was told they were and that he believed neither had  
sought medical attention nor been hospitalized. He said that he talked directly to  
Mr. Hans who seemed tired but was smiling. He also testified that he had difficulty  
understanding Mr. Hans due to language difficulties and was concerned about  
whether his proficiency in English had improved to the extent necessary for him to  
continue being employed by Yanke.  
[206] Mr. Kalbhenn testified that he conducted the formal interview and typed the  
statement which Mr. Hans eventually signed. He said that the answers were given  
primarily by Mr. Hans with some clarification by Mrs. Hans due to language issues.  
Mr. Kalbhenn was also specifically directed by counsel for Volvo to the question of  
Hans v. Volvo Trucks North America Inc.  
Page 41  
Mr. Hans: “Did you have injuries?” and the response “Nothing major, Pavandeep has  
a sore neck”.  
[207] Mr. Kalbhenn testified that after the interview and the signing of the statement  
his concerns about Mr. Hans’ ability to meet Yanke’s English language requirements  
led to discussions with Yanke’s trainers and examiners about Mr. Hansemployment  
with Yanke.  
[208] He testified that he learned that Mr. Hans had passed a Dangerous Goods  
Examination in June of 2008 but that Mrs. Hans had been in the room and had  
helped him. He testified that he concluded that the examination was invalid and had  
to be re-taken.  
[209] Mr. Kalbhenn testified that he then told Mr. and Mrs. Hans what he had  
learned, that Mrs. Hans told him she had assisted Mr. Hans with the test and that he  
then said it would have to be re-taken. He also testified that Mr. Hans then refused  
to take the test and denied that Mr. Hans had told him his head felt numb.  
[210] None of the conversations that Mr. and Mrs. Hans were said to have had with  
Mr. Kalbhenn about her having helped Mr. Hans to pass the Dangerous Goods  
Examination were put to either Mr. or Mrs. Hans by counsel for Volvo in his cross-  
examination of them.  
[211] In a letter dated February 18, 2009, by which he formally terminated  
Mr. Hans’ employment with Yanke, Mr. Kalbhenn wrote:  
This letter serves as confirmation of our telephone conversation yesterday in  
regards to Amandeep's inability to meet the training requirements, pass his  
dangerous goods test and obtain a minimal language requirement to  
communicate effectively with the company representatives.  
During his initial orientation it was discovered that he could not pass the test  
and during the test he received unauthorized answers from you, Pavandeep.  
Furthermore, he had difficulties in all of his tests and communicating without  
assistance. This test must be completed without any support other than the  
training provided and the dangerous goods reference material. After the  
orientation it was agreed that you, Pavandeep, would assist him to bring up  
his language skills and attempt to rewrite the test. If successful, he could then  
remain on the fleet. He rewrote the initial test on April 8, 2008, and again on  
Hans v. Volvo Trucks North America Inc.  
Page 42  
June 14, 2008 and again attempted on February 4, 2009. He was  
unsuccessful on all attempts to pass.  
During the recent investigation of the electrical malfunction on your unit 2877,  
Amandeep could not converse sufficiently to provide any form of statement of  
events. Pavandeep was requested to assist in meeting this requirement or  
the information would not have been received.  
Due to the above reasons, Amandeep is no longer eligible to run on the  
Yanke Fleet as an Operator. We have no concerns with Pavandeep  
remaining as a PTO. If Amandeep’s English language capabilities make a  
successful improvement and he can pass the required testing then he will be  
considered, eligible for reassignment.  
[212] The contents of that correspondence are not only at odds with Mr. Hans  
having been provided with a Dangerous Goods Certificate by Yanke in 2008 that  
was valid until June of 2011 when he was required to re-write the test on February 4,  
2009, but also directly contrary to Mr. Kalbhenn’s sworn testimony that Mr. Hans had  
refused to take the test on February 4, 2009.  
[213] When confronted with that contradiction in cross-examination Mr. Kalbhenn  
insisted that his present memory of the events at trial was clearer than what he had  
written 14 days after the events and re-iterated and insisted that Mr. Hans had  
refused to take the examination on February 4, 2009.  
[214] Volvo’s failure to confront Mr. or Mrs. Hans in cross-examination with  
Mr. Kalbhenn’s version of events on an important issue of credibility, the inherent  
hearsay issues related to the issues engaged concerning other Yanke employees  
who did not testify, and the contradictory contemporaneous evidence in  
Mr. Kalbhenn’s letter of February 18, 2009, lead me to conclude that I cannot safely  
rely upon Mr. Kalbhenn’s testimony concerning Mr. Hans’ emotional state or his  
denials of Mr. and Mrs. Hansexpressions of concern about Mr. Hansability to write  
the Dangerous Goods Exam on February 4, 2009.  
[215] I have concluded that in February of 2009 Mr. Kalbhenn was far more  
concerned with any physical injuries Mr. or Mrs. Hans may have suffered while in  
Yanke’s employ and with Mr. Hans’ English proficiency than with Mr. Hans’  
emotional or mental condition.  
Hans v. Volvo Trucks North America Inc.  
Page 43  
[216] Mr. Kalbhenn was primarily responsible for the dismissal of Mr. Hans as a  
Yanke owner-operator and I am satisfied that, whether deliberately or not, his  
testimony was tailored to exonerate both himself and his former employer for that  
dismissal which was the subject of claims against Yanke for almost seven years.  
[217] It follows that I am not prepared to make any adverse credibility findings  
against Mr. or Mrs. Hans arising from Mr. Kalbhenn’s testimony.  
[218] I accept Mr. and Mrs. Hans’ evidence that they each told the Yanke  
representatives, including Mr. Kalbhenn, that Mr. Hans’ head felt numb and that he  
did not think he could pass the exam, that Yanke insisted that he take it, that he took  
it that day and was told that he had failed.  
B.  
The Plaintiffs’ Sale of their Home after the Collision  
[219] Three weeks after the collision the plaintiffs sold their family home in Surrey  
which Mrs. Hans owned jointly with her sister.  
[220] The plaintiffs’ original statement of claim filed on December 9, 2009 included  
assertions at paras. 45 and 46 that:  
Without access to their Truck or their income that it generated for their family,  
and as a result of the trauma they suffered, the Plaintiffs were unable to earn  
any income until about August 2009, when they obtained part-time work, and  
were not able to contribute to the mortgage on the home that they owned  
together with their extended family.  
As result, the Plaintiffs were obliged to sell their family home for less than its  
assessed value, and fell into arrears on the Financing Contract. Volvo  
Finance seized the Truck and sold it on dates which are unknown to the  
Plaintiff, without returning any equity to the Plaintiffs.  
[221] Those assertions remained part of the plaintiffs’ claims until June of 2015, but  
were withdrawn before trial.  
 
Hans v. Volvo Trucks North America Inc.  
Page 44  
[222] In relation to that claim, counsel for Volvo confronted Mrs. Hans with the  
following:  
1) An affidavit sworn on September 26, 2011 in support of one of the many  
interlocutory proceedings in this case. In that affidavit Mrs. Hans deposed:  
After the accident we sold our home in Surrey below the assessed  
value and are now dependent on our extended family to survive.  
2) The plaintiffs’ written submissions on a summary trial application on  
September 16, 2013 in which their then counsel wrote:  
In addition to losing their Truck, the plaintiffs were also forced to sell  
their home at a loss.  
3) An affidavit sworn on January 15, 2014, on another interlocutory  
application, in which Mrs. Hans deposed:  
In the eight months immediately following the accident, we had no  
income, and we had to sell the house (which I owned jointly with my  
sister) because we could not afford to keep it. That house is now  
worth about $200,000 more on the market than what we sold it for in  
2009.  
4) A valuation report dated June 26, 2015, with respect to the comparative  
values of the Hans’ family home as at the date of its sale in March of 2009  
as compared to June 17, 2015, obtained for the purposes of trial before  
the plaintiffs’ claim associated with loss of value was abandoned.  
5) Mrs. Hans’ testimony on examination for discovery on September 15,  
2015 in which the following exchange occurred:  
Q
Okay. All right. I want to ask you some questions about the --  
what we referred to earlier as the 81st Avenue property --  
A
Okay.  
Q
-- in Surrey, the one that you and your sister owned and sold.  
Right?  
A
Q
A
Okay.  
Okay. 12363 81st Avenue.  
Okay.  
Hans v. Volvo Trucks North America Inc.  
Page 45  
Q
Correct? Now, I understand your position to be that you had to  
sell that house because you could no longer afford it after you  
lost the income stream from your - - as a result of the trucking  
accident. I got that right?  
A
Right.  
6) Two MLS Listings indicating that the home was listed for sale on June 5,  
2008 for $599,000; re-listed on November 1, 2008 for $539,000 and sold  
on February 21, 2009 for $523,500.  
7) A medical legal report obtained at the instance of Yanke but not tendered  
at trial in which the physician recorded that Mr. Hans had told him that  
they had lost their home because of the collision.  
[223] After confronting Mrs. Hans with that evidence and the objective evidence  
that the home had been sold only three weeks after the collision counsel for Volvo  
asked her to admit that her evidence in the referenced affidavits and on discovery  
was false and that the claim with respect to the sale of the home because of the  
collision and being unable to pay the mortgage was concocted to enhance their  
claims in this litigation.  
[224] Mrs. Hans admitted that it was unlikely that more than one mortgage payment  
was missed but denied that the plaintiffs had concocted the claim.  
[225] I am, of course, troubled by the evidence concerning the timing of the actual  
sale of the home within three weeks of the collision and its apparent inconsistency  
with the plaintiffs’ attribution of the loss of its value to the collision when the home  
had been listed for sale before the collision.  
[226] I am also, of course, concerned with the specific plea first advanced in the  
plaintiffs’ original statement of claim filed December 9, 2009 that because of the  
collision they were unable to contribute to the mortgage on the home given  
Mrs. Hans’ admission that it was unlikely that more than one mortgage payment had  
been missed especially given her evidence that before the collision the plaintiffs  
were doing well financially.  
Hans v. Volvo Trucks North America Inc.  
Page 46  
[227] Mrs. Hans’ explanation for those apparent inconsistencies and the facts  
regarding when the home was sold was that, given their risky financial situation  
immediately after the collision and the trauma associated with it and its aftermath,  
they accepted the first offer received for the home rather than attempt to obtain a  
better price.  
[228] Although the various statements made by Mrs. Hans in her affidavits and in  
her examination for discovery do not refer to the prior listing of the home or the  
significant reduction of the asking price for it between June 25, 2008 and  
November 1, 2008 and the subsequent acceptance of an offer almost $20,000 below  
that final list price, the fact that the much lower offer was accepted almost  
immediately after the collision tends to support the explanation given by her.  
[229] I also note that the allegation of being unable to contribute to the mortgage  
payments on the home arose from a pleading advanced many months after the sale  
of the home and was never the subject of sworn testimony before trial.  
[230] In that regard I note also that all of the affidavit evidence relied upon by Volvo  
was sworn many years after the sale when the plaintiffs were still living in very  
strained financial circumstances in rental accommodations. As such, attribution of  
the loss of the home by them to the collision and the conduct of Yanke and Volvo is  
not surprising.  
[231] After considering the totality of the evidence relied upon by Volvo on this  
issue I have concluded that while Mrs. Hans’ evidence suffers to some extent from  
reconstruction, it does not support Volvo’s suggestion that the claim was a deliberate  
concoction by Mr. and Mrs. Hans advanced to exaggerate the plaintiffs’ claims.  
[232] I must also observe that over all or parts of six days in which she testified in  
this trial I found Mrs. Hans to be a reliable historian and a straightforward witness  
who answered questions, both in examination in chief and in cross-examination,  
directly. She was not evasive, her evidence was internally consistent and was also  
generally consistent with the evidence of the other witnesses (with the exception of  
Hans v. Volvo Trucks North America Inc.  
Page 47  
that of Mr. Kalbhenn whose evidence I consider unreliable for the reasons stated  
above) including the plaintiffs’ medical experts.  
[233] I accordingly find that while Mrs. Hansevidence with respect to sale of the  
family home suffers from reconstruction, that frailty in her evidence on that single  
issue does not cause me to consider her to be a generally untruthful witness upon  
whose evidence I cannot safely rely.  
[234] Counsel for Volvo also confronted Mr. Hans with statements recorded by  
Dr. Harrad, Dr. Sandhu and others that he had told them that he and Mrs. Hans had  
to sell the home because of the collision.  
[235] Mr. Hans did not deny those statements. He testified that after the collision  
and after the house was sold he told many doctors that it had been sold and that if  
the collision had not happened the house would not have been sold. He also said  
that if not for the collision they were in excellent financial condition and that now “I  
am the living dead”.  
[236] Assessment of Mr. Hans’ credibility on this issue as well as others I will  
discuss is made difficult by reason of his present psychological state.  
[237] The evidence of his many friends and co-workers who testified and which was  
not challenged by Volvo is that before the collision Mr. Hans was a jovial,  
gregarious, hard-working, highly competitive and physically imposing man who was  
also a social extrovert. In the words of many, Mr. Hans was the “life of the party” who  
was always at the centre of any activity.  
[238] His daughter, Ashleen also testified that her father was a “fun guy” who  
played sports and games with his children and other children and would often leave  
adult companionship when children were around to join in their fun.  
[239] Those same collateral witnesses all testified that Mr. Hans is now socially  
reclusive, withdrawn in the few social activities he attends, uninterested in sports or  
competition, sullen, impatient with or uninterested in children including his own,  
Hans v. Volvo Trucks North America Inc.  
Page 48  
fixated upon and obsessive about the collision and the “death truck”, generally  
emotionally flat but also subject to angry outbursts about Volvo and Yanke and how  
they have “ruined his life”.  
[240] Many of those aspects of Mr. Hans’ present psychological state were also  
evident when testifying at trial. Consistent with much of the medical evidence he also  
demonstrated and acknowledged a poor memory for past events and the timing of  
them.  
[241] While Mr. Hans appeared to have a fairly good recall of his general  
circumstances before the collision, and even smiled at photographs of his many  
athletic achievements in India, he had difficulty remembering the circumstances of  
family events and, at one time, even had some difficulty recognizing his son in a  
photograph of an early birthday celebration.  
[242] Although, bearing in mind his memory difficulties, Mr. Hans was generally  
responsive to questioning by his own counsel, his evidence was not spontaneous  
and at times his responses were difficult to follow. He did, however, also at times  
demonstrate serious distress to the point of tears when recounting the  
circumstances of the collision, his overwhelming fear of death during the loss of  
electrical power, his inability to control the jack-knifing of the trailer, the sparks in the  
rear view mirror from the landing gear hitting the pavement and his fear of fire, as  
well as the noise that emanated from the landing gear and the squealing of tires.  
[243] Under cross-examination Mr. Hans often became agitated and at times  
explosive when answering questions and often referred to the ruination of his life by  
Yanke and Volvo. He also at times became impatient with persistent questioning.  
[244] After considering the totality of Mr. Hans’ evidence and with the benefit of my  
own observations, the evidence of his friends and co-workers and the medical  
evidence that I accept I have concluded that Mr. Hans was an honest but fragile  
witness who did his best to communicate with counsel and the Court.  
Hans v. Volvo Trucks North America Inc.  
Page 49  
[245] Having said that, I have also concluded that because of the psychological and  
memory issues from which he so obviously suffers as well as his palpable anger at  
Volvo and Yanke I must approach the reliability of his evidence with care and where  
possible look for corroboration.  
[246] At times, such corroboration may only be available from the evidence of  
Mrs. Hans. If so, for the reasons I have articulated above concerning my  
assessment of her honesty and the overall reliability of her evidence, I am satisfied  
that, notwithstanding the identity of their interests in this litigation, I can safely rely  
upon corroboration by her.  
[247] In summary, I find that when considered in the context of the overwhelming  
evidence of Mr. Hans’ psychological difficulties and their manifestation upon his life  
and that of his family over the almost seven years since the collision, I do not accept  
Volvo’s submission that Mr. and Mrs. Hans concocted their “story” about the sale of  
their home at a loss to exaggerate their claims for damages.  
C.  
The Sincerity of Mr. Hans’ Suicide Attempts  
[248] In cross-examining Mrs. Hans about Mr. Hansfirst suicide attempt in October  
of 2011 when she found him in a downstairs bedroom at night with a scarf around  
his throat, counsel for Volvo elicited evidence that the scarf was too long to have  
allowed Mr. Hans to succeed in taking his life.  
[249] In relation to the second attempt while Mr. Hans was hospitalized for the  
second time for worsening depression in December of 2011, counsel for Volvo  
focussed on the statement in the hospital discharge records recorded at para. 151  
above concerning the inability of the curtain rod to sustain Mr. Hans’ weight.  
[250] In that regard, in cross-examination of psychiatric experts who testified,  
counsel for Volvo also relied on a statement in that same hospital record attributed  
to a staff psychologist that:  
…the self-harming behaviours may have been motivated by secondary gain.  
namely supporting his request for compensation…  
 
Hans v. Volvo Trucks North America Inc.  
Page 50  
[251] Specifically:  
1) That statement was referred to Dr. Harrad, with the suggestion that  
Mr. Hans’ failed suicide attempts by hanging and his third unsuccessful  
attempt on the railroad tracks were not genuine or serious; and  
2) That statement, as well as an article entitled The Assessment of  
Malingering in Traumatic Stress Claimants (which had been referred to  
counsel for Volvo by their psychiatric expert Dr. Kevin Solomons), was  
referred to the plaintiffs’ psychiatric expert Dr. Greg Passey with the  
suggestion that Mr. Hans may be exaggerating his symptoms for  
secondary gain.  
[252] Concerning Mr. Hans’ third hospitalization after the railroad tracks incident,  
counsel for Volvo also cross-examined both Mrs. Hans and Parmjit Hans on whether  
there had been a train on the tracks, with the obvious inference being that this was  
either another insincere attempt or an exaggeration by Mr. Hans of his psychological  
condition.  
[253] Although all of those indirect or direct suggestions that Mr. Hans’ suicide  
attempts were not serious or genuine were put to Mrs. Hans, Parmjit Hans,  
Dr. Harrad and Dr. Passey, no such proposition was ever put to Mr. Hans.  
[254] After considering the totality of the evidence on this trial, and most specifically  
that of the psychiatrists who testified, I find that the suggestions that Mr. Hans was,  
by means of his failed suicide attempts, exaggerating his psychological trauma for  
monetary gain are without substance.  
[255] I say that because:  
1) Dr. Passey acknowledged in cross-examination that malingering is always  
of concern in psychological diagnoses but also testified that he saw no  
evidence of malingering in the case of Mr. Hans.  
Hans v. Volvo Trucks North America Inc.  
Page 51  
2) Dr. Harrad testified that he believed all the recorded suicide attempts to be  
genuine and serious ones. He also said that he did not consider the  
attempts to be cries for help as suggested by counsel for Volvo because  
he has treated Mr. Hans for a number of years and “knows the patient”.  
3) Dr. Sundeep Thinda, a psychologist who saw Mr. Hans in May of 2012,  
testified in direct examination that an individual acting upon suicidal  
ideation is not likely to look at the physics of the methodology employed.  
4) The sole entry in the Surrey Memorial Hospital records attributed to a staff  
psychologist who did not testify is the only reference to possible motivation  
for secondary gain notwithstanding Mr. Hans’ admission to the hospital on  
three occasions for stays of many weeks each time before he was  
determined by hospital doctors to be sufficiently stable to be released.  
5) Although Dr. Solomons referred the article on malingering to Volvo’s  
counsel, in his first report dated July 28, 2014, in which he included the  
Surrey Memorial Hospital records and the possible motivation for  
secondary gain as part of the documentation reviewed by him, but made  
no specific reference to it, he wrote:  
As I encountered him at this assessment, it is my opinion that his  
severe agitated treatment-resistant major depression makes him a  
significant risk to himself and to others, and I think he ought to be  
detained in a psychiatric hospital under the Mental Health Act for  
treatment as well as for his safety and the safety of others.  
[My emphasis.]  
[256] It is also important to note that while refuting the suggestion that Mr. Hans’  
failed suicide attempts were not genuine or motivated by secondary gain both Drs.  
Passey and Harrad as well as Dr. Dhillon offered the opinion that while it is a  
positive sign that Mr. Hans has made no further attempts at suicide since August of  
2012, what remains of concern is the continued existence of passive suicidal  
ideation which has in the past become active culminating in the three known  
attempts.  
Hans v. Volvo Trucks North America Inc.  
D. The Extent to which Mr. Hans has been Supervised  
Page 52  
[257] Volvo also challenged the veracity of Mrs. Hans’ evidence concerning the  
extent to which Mr. Hans has both needed supervision and the extent to which he  
has actually been supervised since being released from hospital after his first suicide  
attempt in the fall of 2011.  
[258] As with the issues raised concerning the sale of the house and the failed  
suicide attempts, the focus of that challenge to Mr. and Mrs. Hanscredibility  
centered on the suggestion that the close supervision of Mr. Hans that Mrs. Hans  
says is necessary, and the extent to which that is accepted by the medical experts,  
is either untrue or exaggerated to inflate the plaintiffs’ claims for damages.  
[259] One aspect of Volvos attack on Mr. and Mrs. Hanscredibility on the issue of  
the need for and extent of supervision focussed upon the number of hours  
Mrs. Hans has been away from Mr. Hans because of her work commitments or  
because of the need to drive to and attend the children’s out of school activities.  
[260] A second aspect focussed upon Mr. Hanstravel to India for lengthy periods  
of time in 2013 and 2014 while Mrs. Hans remained in Canada.  
1) Supervision of Mr. Hans in Canada  
[261] In recording the background circumstances in these reasons I have set forth  
in chronological sequence the events following Mr. Hans’ discharge from the Surrey  
Memorial Hospital in November of 2011 after his first suicide attempt on October 5,  
2011. In doing so I have also included reference to the medical intervention and  
treatment he has received.  
[262] That medical intervention included: frequent attendances upon his family  
physician Dr. Dhillon; a second admission to Surrey Memorial Hospital in December  
of 2011; 20 attendances upon Dr. Sandhu’s office for psychiatric services with  
accompanying pharmaceutical intervention; the third admission to the psychiatric  
behavioural unit at Surrey Memorial in August of 2012 until September 20, 2012;  
followed by weekly attendances (with exception of the two visits to India from June  
   
Hans v. Volvo Trucks North America Inc.  
Page 53  
to early September 2013 and from April to June 2014) upon Dr. Harrad from  
October 4, 2012 until trial (accompanied by pharmaceutical intervention as detailed  
in paragraph 174 of these reasons) to attempt to control Mr. Hans’ still present  
psychiatric symptoms and to attempt to prevent him from actively acting upon his  
pervasive suicidal thoughts.  
[263] Since his last suicide attempt Mr. Hans has also seen a number of other  
health professionals in addition to Drs. Dhillon and Harrad both for therapeutic  
assistance and for medical-legal issues.  
[264] Those other professionals include Dr. Passey and Dr. Kasusar Suhail, a  
clinical psychologist who saw Mr. Hans for four sessions of psychological treatment  
in November and December of 2014, in which, without success, she attempted to  
treat him using cognitive behaviour and cognitive processing therapies. She  
eventually put all treatment by her on hold because of Mr. Hans’ agitation and  
inability to engage in those “talking” therapies.  
[265] In addition, I have noted the ongoing supervision of Mr. Hans at home and in  
the community since his discharge in November of 2011 after his first suicide  
attempt (at those times when he was not again hospitalized or for those periods in  
which he was in India) which has fallen primarily upon Mrs. Hans with assistance  
from Parmjit Hans.  
[266] Volvo did not challenge Parmjit Hans’ evidence that after he separated from  
his wife, he first started supervising Mr. Hans for 20 to 25 hours per week for $1,000  
per month (and board and room), and continued as Mr. Hans’ almost constant  
companion for no remuneration when he was not himself at work as a truck driver.  
[267] Even those extensive supervisory efforts were, however, insufficient to  
prevent Mr. Hans’ third suicide attempt in August of 2012, when Mr. Hans left his  
home while Parmjit Hans was in the washroom.  
[268] Also, since Mr. Hans’ last suicide attempt in 2012 when Mrs. Hans or Parmjit  
Hans have been unavailable, Mr. Hans has been regularly looked in on when  
Hans v. Volvo Trucks North America Inc.  
Page 54  
necessary by Sarjit Kaur Bilan who lives downstairs in the same house in which the  
Hans family resides.  
[269] In addition, Ms. Bilan at times prepares food for Mr. Hans and looks after the  
Hans’ children when needed from time to time and also drives Ashleen to school  
near her own daughter’s school.  
[270] Mrs. Hans also testified that she is in constant telephone communication with  
Mr. Hans when she is away from the home and has tried to find work which allows  
her flexible hours so that her time away from him is as limited as possible.  
[271] Those efforts at supervision have been undertaken by Mrs. Hans, Parmjit  
Hans, Ms. Bilan and also at times by Ashleen Hans, so that Mr. Hans is not left  
alone or is at least in telephone contact with Mrs. Hans because of Mrs. Hans’ fear  
that he will again try to commit suicide.  
[272] Cross-examination of Mrs. Hans and of Parmjit Hans as well as that of  
Ms. Bilan was directed primarily at their work schedules or other commitments to  
establish that the totality of those commitments would at any given time, and  
especially in daylight hours, still leave Mr. Hans alone at times without direct  
supervision.  
[273] Mrs. Hans did not disagree with that proposition.  
[274] She testified that she does the best she can with the help available to her but  
acknowledged there are times, and even extended periods, when no one is with  
Mr. Hans. She says she has no option but to work when she can to “put food on the  
table”.  
[275] She testified that she has to take some risks, but remains fearful and vigilant  
which is why she maintains such close telephone contact and tries to minimize the  
time when someone is not with Mr. Hans, and which is why she engages the help of  
others as much as possible to drive the children to their activities and also tries to  
persuade Mr. Hans to come with her or go with Parmjit Hans to those activities.  
Hans v. Volvo Trucks North America Inc.  
Page 55  
[276] Mrs. Hans also testified that she has been more successful recently in doing  
so since their son has become more involved in hockey tournaments. To that extent  
she has been able to have Mr. Hans travel by car as far as Nanaimo and Terrace for  
tournaments although the trips were difficult for him.  
[277] I am satisfied by the totality of the evidence that Mrs. Hans did not exaggerate  
the extent to which she has devoted herself and others to the supervision of  
Mr. Hans since his suicide attempts.  
[278] I accept Mrs. Hansevidence that the times when Mr. Hans is left  
unsupervised arise because of financial need and other familial responsibilities that  
require some reluctant risk taking by Mrs. Hans and that in all of the circumstances  
she is not able to avoid taking some risks.  
[279] Mr. and Mrs. Hans are fortunate to have had the devoted, selfless and largely  
unpaid assistance of Parmjit Hans and Ms. Bilan in minimizing the risks inherent to  
leaving Mr. Hans alone.  
[280] The medical evidence as well as the evidence of Parmjit Hans and Ms. Bilan  
corroborates not only the extent of Mrs. Hans’ efforts but also the genuineness of  
her fear of leaving Mr. Hans alone.  
2) Mr. Hans’ trips to India in 2013 and 2014  
[281] The extent to which Mr. Hanstwo trips to India may have been  
“unsupervised” is not easily assessed.  
[282] As I have previously noted Mr. Hans was an honest but fragile witness who  
did his best to communicate with counsel and the Court but because of the memory  
issues from which he so obviously suffers, as well as his palpable anger towards  
Volvo and Yanke, I must approach the reliability of his evidence with care.  
[283] Although Volvo pointed to some potential conflicts in Mr. Hans’ evidence on  
discovery and at trial concerning his living arrangements in his ancestral home while  
he was in Hans Village during the two visits to India as well as the extent to which  
 
Hans v. Volvo Trucks North America Inc.  
Page 56  
his paternal uncle either actually resided with him or was in a home nearby to be  
called upon as needed, I am not satisfied that any such conflicting evidence is  
sufficient for me to conclude that Mr. Hans was deliberately untruthful in his  
evidence at trial or that he was attempting to exaggerate his symptomology.  
[284] I have concluded that while Mr. Hans was at times confused as to what  
occurred during each of the separate visits, he likely conflates the two. I find that  
while it is likely that at times Mr. Hans lived alone in the village with his uncle being  
nearby rather than in full time residence with him, I am also satisfied that Mr. Hans  
was not as fully functional or independent in India as suggested by Volvo.  
[285] I say that because:  
1) Although he travelled by plane to India, the arrangements were made by  
Mrs. Hans and on at least one of the trips he was accompanied for all or part  
of that trip by Parmjit Hans.  
2) Mrs. Hans was in continual telephone communication with Mr. Hans to ensure  
that he was compliant with the taking of his medication.  
3) There is no evidence that the full medicinal regime prescribed by Dr. Harrad  
was not fully complied with.  
4) Dr. Harrad’s evidence concerning the two trips to India is important because  
both trips were made only after consultation with him. He fully supported the  
trips because he was of the view that the religious aspects of the trips could  
be beneficial to Mr. Hans.  
5) Dr. Harrad also testified that after the first trip although Mr. Hans appeared to  
have been happy to have gone to India, he saw no improvement in his  
underlying psychological problems.  
6) Dr. Harrad remains of the opinion that Mr. Hans continues to need 24 hour  
supervision by family member or others because of his past suicide attempts  
and continuing symptoms.  
Hans v. Volvo Trucks North America Inc.  
Page 57  
[286] I am accordingly satisfied that the totality of the evidence concerning  
Mr. Hans’ two extended trips to India in 2013 and 2014 does not support Volvo’s  
contention that Mrs. Hans has been untruthful about the need to supervise Mr. Hans  
or that she or Mr. Hans have exaggerated his symptoms to increase their claims for  
compensation for his injuries.  
E.  
Video Surveillance of Mr. Hans’ Activities in May and June of 2015  
[287] In challenging the veracity of Mr. and Mrs. Hans’ evidence, and to a lesser  
extent that of Parmjit Hans, about Mr. Hans’ ongoing psychiatric symptomology and  
the submission that his condition has been deliberately exaggerated for financial  
gain, Volvo relied extensively upon video surveillance evidence of Mr. Hans that was  
recorded on:  
1) May 29, 2015 for a total of approximately forty five minutes;  
2) May 30, 2015 for a total of approximately one hour and forty five minutes;  
3) June 7, 2015 for a total of less than twenty minutes; and  
4) June 9, 2015 for a total of approximately two hours and fifteen minutes.  
[288] During almost all of that surveillance evidence Mr. Hans was in the presence  
of Parmjit Hans.  
[289] In brief summary as to the contents of that surveillance:  
1) The events recorded on May 29 comprise: a 6 minute segment showing  
Mr. Hans and Parmjit Hans seated in the lounge area of an arena  
watching Mr. Hans’ son play hockey; a 7 minute segment recording the  
stalling of the Hans’ family vehicle driven by Parmjit Hans due to a dead  
battery and the restarting of it with jumper cables; a segment of 28  
minutes recording a second breakdown of that vehicle and a second re-  
start with jumper cables during which Mr. Hans telephoned Mrs. Hans who  
comes to the scene to pick up their son and his hockey gear leaving  
 
Hans v. Volvo Trucks North America Inc.  
Page 58  
Mr. Hans and Parmjit Hans with the car; and, a two minute scene in which  
the vehicle stalls for the third time, is pushed to the side of the road and is  
again re-started with jumper cables.  
2) The events recorded on May 30 comprise: a forty-two minute segment  
again showing Mr. Hans and Parmjit Hans seated in the lounge area of an  
arena watching Mr. Hans’ son play hockey; a very short segment showing  
Mr. Hans and Parmjit Hans returning to the arena almost four hours later  
followed by a 54 minute segment in which Mr. Hans and Parmjit Hans are  
seated in the same lounge area again observing Mr. Hans’ son playing  
hockey; a two minute segment in which Mr. Hans and Parmjit Hans leave  
the arena and get into the Hans’ family car; and, a 10 minute segment  
showing Mr. Hans and Parmjit Hans walking and talking in front of the  
Hans’ family home.  
3) The events recorded on June 7 comprise: a very brief segment showing  
Mr. Hans walking in his neighbourhood; another very short segment  
showing Mr. Hans walking out of a parking garage with Parmjit Hans; and,  
a five minute segment in which Mr. Hans is walking in a garden outside  
the garage while talking on a cellular phone before getting into the Hans  
family car when it pulls up.  
4) The events recorded on June 9 comprise: a very short segment in which  
the Hans’ family car stops in front of an area and pulls away; a one hour  
and fifty-two minute segment in which Mr. Hans is walking with Parmjit  
Hans along an overpass as well as in Burnaby Lake Park; and, a twenty-  
four minute segment in which Mr. Hans and Parmjit Hans are parked in  
the Hans’ family car outside of an arena before Mr. Hansson comes out  
and puts hockey gear into the car after which Mr. Hans and Parmjit Hans  
drive to another building, get out of the car and go into that building for  
about 5 minutes before coming back to the car and leaving the scene.  
Hans v. Volvo Trucks North America Inc.  
Page 59  
[290] Counsel for Volvo relied specifically upon the video surveillance concerning  
the three breakdowns of the Hans’ family car on a busy street in Surrey as being  
demonstrative of Mr. Hans acting without apparent distress when confronted with the  
electrical failure of a vehicle in potentially dangerous circumstances.  
[291] The suggestion made to Mr. Hans and also many of the medical practitioners  
who testified was that Mr. Hans’ reaction in the video was not consistent with the  
fear he says he experienced when the electrical system of the Truck failed.  
[292] Counsel for Volvo also relied upon what he characterized as Mr. Hans’  
apparent enjoyment of his son’s hockey games and protracted seated attendance in  
the lounge area of the arena on at least one occasion as being inconsistent with  
Mrs. Hans’ evidence that Mr. Hans had no real interest in his children’s activities,  
was usually in a state of agitation when he did watch and would not sit with other  
parents.  
[293] In addition, Volvo adduced the evidence of Dr. Solomons who wrote in his  
report of September 24, 2015 that:  
My opinion is rendered prior to my review of the surveillance video material.  
Mr. Hans’ presentation in this surveillance material portrays an entirely  
different picture of him from that seen in the examination room and an entirely  
different picture from that described in his clinical records and reports.  
I am unable to reconcile the disparity between his clinical presentation at this  
and at other assessments and his presentation in the video material. His  
presentation in the video material is inconsistent with the diagnosis of a  
severe agitated treatment-resistant depression.  
[294] That observation also led to Dr. Solomons providing counsel for Volvo with  
the article on the assessment of malingering in cases of post-traumatic stress  
disorders to which I earlier referred.  
[295] Dr. Solomons did not, however, provide any specific opinion in his report of  
September 24, 2015, other than the one I have referenced concerning what aspects  
of the video evidence had led him to conclude that Mr. Hanspresentation was  
“inconsistent with the diagnosis of a severe agitated treatment resistant depression”,  
Hans v. Volvo Trucks North America Inc.  
Page 60  
which had been reached by Dr. Solomons after lengthy meetings with Mr. Hans on  
two occasions before viewing the videos.  
[296] I make the following observations and findings concerning the video  
surveillance evidence in the context of the allegations of exaggeration and  
malingering suggested by Volvo.  
1) The circumstances of the electrical breakdowns of the Hans’ family vehicle  
were entirely unlike those experienced during the total failure of the  
electrical system of the Truck that caused the collision on the Trans-  
Canada Highway on January 31, 2009. The video depicts a bright sunny  
day and a vehicle stopped or barely moving when easily corrected battery  
failures occurred. There was no danger remotely akin to an out of control  
truck with a fully loaded jack-knifing trailer, without lights in totally dark icy  
road conditions while traveling at 65 to 70 km per hour. Significantly also,  
at the times of the electrical failures recorded in the video and in all of the  
other video evidence involving driving, Parmjit Hans was the driver of the  
Hans’ family vehicle. He was also in control of the re-starting of the  
vehicle. I also accept Parmjit Hans’ evidence that Mr. Hans was confused  
about where to return the borrowed jumper cables that were used to start  
the car when the battery first failed.  
2) The relatively lengthy segments of the video on June 9, 2015, in which  
Mr. Hans is seen, usually with Parmjit Hans, walking in Burnaby, is  
consistent with the evidence that Parmjit Hans encourages Mr. Hans to  
walk to get him out of the home. The pace and apparent aimlessness of  
the walking is not what one would expect of someone who was as  
athletically gifted and competitive as Mr. Hans once was.  
3) The segments showing Mr. Hans with Parmjit Hans in the arena lounge  
are inconsistent with Mrs. Hansevidence to the extent that they show  
Mr. Hans involved in watching his son play hockey rather than being  
disinterested. The segments are, however, consistent with her evidence  
Hans v. Volvo Trucks North America Inc.  
Page 61  
that he does not sit with other parents and is restless, as demonstrated by  
some agitation while sitting. The timing of the video evidence is also  
consistent with the evidence of Parmjit Hans that he has had more  
success lately in getting Mr. Hans to be more engaged in his son’s  
activities and also that of Mrs. Hans that she has recently been able to  
convince him to go with the family to tournaments out of Vancouver even  
though that has involved him sitting in a vehicle for extended periods of  
time and with the necessity for frequent stops. Significant also, in my view  
is Parmjit Hans’ unchallenged evidence that during the hockey game  
depicted in the video Mr. Hans’ son scored more than one goal. Mr. Hans  
did not react with any noticeable emotion to any such success which is, in  
my opinion, consistent with the totality of the evidence that Mr. Hans  
remains relatively uninvolved and disinterested in the activities of his  
children.  
4) Concerning Dr. Solomonscommentary about the difference between  
Mr. Hans’ presentation in the videos as compared to in his examinations, I  
observe that the videos depict everyday life events primarily out of doors  
in the presence of Mr. Hans’ good friend Parmjit Hans. It is not surprising  
that during examination by Dr. Solomons, known by Mr. Hans to be  
chosen by Volvo as a psychiatric expert for the purposes of this litigation,  
his demeanour would be very different. The latter was an obviously more  
stressful situation directed to re-living the collision and its effect upon  
Mr. Hans’ life. My own observations of Mr. Hans in the similarly stressful  
situation of being a witness in this case were that when questioned by his  
own counsel his demeanor was mostly calm except when testifying about  
the collision itself at which time he became very emotionally distraught.  
Under cross-examination, with counsel for Volvo seeking to minimize the  
nature of the collision as well as the effects of it upon him, and when his  
honesty was challenged, his demeanour changed dramatically. He  
became more and more agitated and at times explosive in his  
denunciation of the Truck that had “ruined his life” and the unfair actions of  
Hans v. Volvo Trucks North America Inc.  
Page 62  
Volvo and of Yanke towards him and his family subsequent to the  
collision.  
[297] While Mr. Hans’ reactions in court were extreme and also unlike his  
appearance in the videos, I am not prepared to accept that in its totality the video  
surveillance evidence without any audio voice recording is capable of establishing  
that Mr. or Mrs. Hans have exaggerated Mr. Hans’ ongoing psychiatric  
symptomology for financial gain.  
[298] In that regard, I find the evidence of Dr. Passey, a psychiatrist with extensive  
experience in the diagnosis and treatment of PTSD, to be illuminating.  
[299] In his report of October 15, 2015 delivered in response to Dr. Solomons’  
report concerning Dr. Solomons’ review of the video surveillance evidence  
Dr. Passey wrote:  
Reference 2 (surveillance videos and word document) provide less than two  
hours of very limited videotaped evidence of Mr. Hans’ behaviour while in  
public in May and June 2015. It is quite clear in these videos that he does not  
go to public events such as his son’s hockey game by himself. While  
attending the hockey arena he always arrives and departs as a passenger in  
a car and has a male friend escorting him. In fact, most of the video evidence  
shows him with a male friend.  
Individuals with PTSD often feel less anxious at public events if they have  
someone they know and trust attend the event or activity with them. Utilizing  
a friend as an escort (this can significantly reduce their anxiety and other  
PTSD symptoms) is often part of the PTSD treatment regime in order to get a  
PTSD patient to go to public events when otherwise, if by themselves, they  
would avoid such activity because of their PTSD symptoms. This is quite  
commonly used with any anxiety disorder diagnosis that limits a person’s  
ability to be at public events alone.  
It appears on the videos that the only time Mr. Hans is alone is when he is  
walking in his neighborhood or apparently on occasion at the hockey arena  
when he has to leave the arena despite his son’s game still being played  
(Reference 2 word document). The vast majority of healthy fathers would not  
be typically going for a walk outside the arena for an extended period of time  
when their son’s game is still being played. In a PTSD patient this type of  
behavior is common (because of PTSD symptoms of anxiety or anger that  
cause them to leave) and may even be taught in therapy as a “timeout” or a  
coping technique when PTSD symptoms (e.g. anxiety etc.) become too  
intense while attending an event. The timeout allows the intensity of the  
anxiety etc. to diminish when [the] patient gets away from too many people  
(even 4 or 5 people can constitute too many). This would then allow a PTSD  
Hans v. Volvo Trucks North America Inc.  
Page 63  
patient to potentially return to the event for another period of time once their  
symptoms have diminished with the timeout.  
The video evidence clearly shows that Mr. Hans is only in a car as a  
passenger and not as a driver. This is despite the fact that he was a  
professional driver prior to the January 31, 2009 MVA. This evidence  
supports the history that he and his wife provided that he is uncomfortable as  
a driver now and attempts to avoid driving. This was noted in my report  
(reference 5) and is evidence of PTSD criteria C2 and probably criteria B4 &  
B5 (the latter two being the reason to avoid driving because it causes an  
increase in his PTSD psychological and physiological symptoms).  
Having a diagnosis of PTSD and Major Depression does not mean that a  
person is not able to ever go into public or interact with people. Rather they  
are usually restricted in their abilities to function in public or outside of their  
house. They usually are also not able to enjoy things as much as prior to the  
PTSD onset. It is interesting to note in the videos that Mr. Hans only smiles  
once in all of the taping that was done.  
PTSD symptoms can wax and wane depending on stress levels (e.g.  
insomnia, poor diet, finances, relationship issues, etc.) and exposure to  
triggers that remind a person of their trauma etc. What a person is able to do  
one day may not be possible the next day because of the effects of stressors  
or triggers. There is nothing in the video that does not support a diagnosis of  
PTSD.  
In Reference 1 Dr. Solomon wrote: “Mr. Hans’ presentation in the surveillance  
material portrays an entirely different picture of him from that seen in the  
examination room and an entirely: different picture from that described in his  
clinical records and reports. I am unable to reconcile the disparity between  
his clinical presentation at this and at other assessments and his presentation  
in the video material. His presentation in the video material is inconsistent  
with the diagnosis of a severe agitated treatment-resistant depression.”  
I agree only with Dr. Solomon’s very last sentence. However, Mr. Hans’  
presentation is consistent with someone with severe PTSD and depression.  
Dr. Solomon has simply not arrived at the correct diagnosis and that is why  
he is not able to reconcile the behaviour in the videos with his diagnosis. ...  
All levels of experienced trauma mental health clinicians are aware that a  
PTSD patient’s presentation in an assessment interview may be worse than  
their day-to-day function. They may seem to be more emotionally shut down,  
more depressed, more anxious, less able to focus, more symptomatic, etc.  
because the interview process will trigger and worsen their PTSD symptoms  
during the interview, as they are required to relate their trauma history. ...  
This phenomena is simply further evidence of the effect that criteria B4 & B5  
can have on a person with PTSD.  
[300] I have concluded that the opinion evidence of the medical experts adduced by  
the plaintiffs based upon their assessments of Mr. Hans after their own interviews of  
Hans v. Volvo Trucks North America Inc.  
Page 64  
and interaction with him is not in any way undermined by the video surveillance  
evidence relied upon by Volvo.  
VI.  
LIABILITY  
[301] The plaintiffs allege that Volvo was negligent in designing, manufacturing and  
installing the critical cab positive terminal connection in the Truck which caused the  
shutdown of the electrical system that caused the collision on January 31, 2009.  
A.  
Shutdown Caused by a Loose Nut on the Cab Positive Terminal  
[302] Volvo admits that the collision was caused by a loose nut on the cab positive  
terminal but denies that the plaintiffs have established that Volvo was negligent in  
the design, manufacture or installation of the cab positive connection, or is in any  
other way liable to the plaintiffs for their alleged losses.  
[303] As I have noted in recording the background circumstances, the plaintiffs had  
experienced a number of electrical issues with the Truck prior to the complete failure  
of the electrical system that caused the collision on January 31, 2009. The details of  
those electrical issues are recorded in Mr. Hewitt’s expert report of May 1, 2012 and  
are summarized at paras. 83 and 87 of this judgment.  
[304] As I have also noted, of particular importance are the events of July 4, 2008  
in Regina in respect of which the evidence establishes that while Mr. and Mrs. Hans  
were travelling through Regina at a very low speed in daylight hours all electrical  
power in the Truck was lost and the vehicle shut down on the roadway.  
[305] When that occurred Mr. Hans was able to re-start the engine by “wiggling” the  
battery cables located near the batteries and then drove the Truck to a Volvo service  
centre in Regina where it was inspected and where the service technicians  
diagnosed the cause of failure as a “blown main fuse”.  
[306] Concerning that blown fuse Mr. Hewitt stated:  
Without the main fuse, presumably the truck would not have functioned. …  
It would therefore seem that this vehicle has suffered from sporadic electrical  
   
Hans v. Volvo Trucks North America Inc.  
Page 65  
issues which appear similar and therefore potentially related to the failure on  
January 31, 2009.  
[My emphasis.]  
[307] As I have also recorded above, after the total failure of the Truck’s electrical  
systems on January 31, 2009 it was towed to Yanke’s yard in Winnipeg where it was  
inspected between February 7 and 10, 2009 by Mr. Hewitt and others before being  
eventually repaired at Beaver Trucks, the Volvo repair and service centre in  
Winnipeg.  
[308] In his report of May 1, 2012 (the original of which was provided to Yanke and  
Volvo in March of 2009), Mr. Hewitt wrote:  
On arrival at Yanke, one of their mechanics had already removed part of the  
plastic dash molding, to the left of the steering wheel, exposing wires, some  
of which passed through the fire wall. The main 12V power feeds from the  
battery, are terminated on positive (red) and negative (black) terminal posts  
which pass through the fire wall. A nut holds each cable in place on the  
terminal posts inside the cab and in the engine compartment. Many control  
wires were observed (coloured orange and yellow) running from transducers  
in the air line manifold adjacent to the positive and negative wires. Refer to  
Photo 2.  
On observation, it was immediately noted that the cab positive termination  
showed signs of heat damage. The cable insulation had melted. Additionally,  
the plastic bushing through which the cab positive terminal post passes had  
partially melted. Two orange/white wires had also melted to the cab positive  
terminal post. The insulation showed signs of carbon char. Carbon char can  
conduct electricity. This can also be seen in Photo 1. The wires were  
estimated to be #16 or #18 AWG. The charred wires ran from a transducer  
labeled APP-G on the fire wall air manifold. One of the charred wires had a  
tape with the acronym AP-TD printed on it.  
Further observation of the cab positive terminal was carried out as it  
obviously showed signs of heat damage, potentially caused by resistance  
heating. On closer inspection, it was noted that the terminal nut appeared to  
be loose. This was particularly evident when the space between the rear of  
the nut and the washer appeared greater on the cab positive terminal than  
the negative terminal.  
At this point, the ignition was turned to the on position (engine was not  
started). The interior cab lights, dash lights, radio and windshield wipers  
operated. The cab positive terminal was very lightly manipulated by hand,  
and it was noted that the interior lights (cab and dash) and wipers turned off.  
As soon as the manipulation ceased, operation resumed. The vehicle’s  
Hans v. Volvo Trucks North America Inc.  
Page 66  
engine was started, and the process of manipulation of the terminal repeated.  
No audible change to the engine sound was noted.  
The headlights were turned on, and again the cab positive terminal was  
manipulated. During manipulation, the headlights flickered off and on. As  
soon as the manipulation ceased, the headlights remained on and  
operational.  
Our attention then focused on the potentially loose cab positive terminal.  
Using an inch-pound torque wrench, the cab positive terminal nut was backed  
off. It was determined it was tightened to 25inch-lb (2ft-lb). The cab negative  
terminal was substantially tighter than this. Unfortunately, it was not possible  
to measure its torque value as we loosened the negative nut with a foot-lb  
torque wrench (prior to loosening the positive nut), which was not sensitive  
enough to record the value. All present agreed it was substantially tighter  
than 25inch-lb. The nuts on the engine compartment side of the terminal  
posts were tight.  
Closer inspection of the wiring and the fire wall air manifold revealed that the  
vehicle is fitted with after market fog lights, installed in the bull bars. The  
wiring passes through a hole in the air manifold, and is routed to the fuse box,  
where it terminates in a fuse carrier. The circuit is unfused. With the  
exception of a small cut in the insulation, which had been covered with black  
insulation tape, nothing remarkable was noted about the condition of the  
wiring, and aside from being unfused, it appeared to be correctly wired, and  
appeared not to have contributed directly to the vehicle accident. Yanke have  
provided an invoice indicating that these fog lights were installed on October  
11, 2008, by Moga Truck Repair (see Invoice #14739).  
[My emphasis.]  
[309] Specifically germane to the liability issues now requiring resolution, Mr. Hewitt  
also wrote:  
At issue is how the cab positive terminal nut became loose. There are a  
number of potential causes:  
1. The nut was not sufficiently tightened by Volvo during initial  
assembly.  
2. The nut was not sufficiently tightened during maintenance.  
3. The nut became loose during operation.  
4. Mega Truck Repair loosened the nut while trying to install the fog-  
lights.  
The cab terminal nut in question is not an item routinely maintained.  
Discussions with the mechanic at Beaver Trucks concluded that if electrical  
faults had been reported to an operator, the cab terminal nut would not be the  
obvious place to trouble-shoot. It is therefore less likely that the nut was  
loosened as part of maintenance and not re-tightened.  
Of concern is the issues the operator reported in May, June and July 2008.  
The fact that the vehicle had suffered from engine failures at this time  
Hans v. Volvo Trucks North America Inc.  
Page 67  
indicates that the nut could have been loose from assembly given that the  
truck is relatively new. It is also possible that the nut loosened due to  
vibration during use. It is noted that the nut is not a locking variety and no  
thread leaking compound was visible. It is therefore possible that the nut  
naturally loosened during use.  
Invoice 14739 proves that the after market fog lights were installed in October  
2008 (after the onset of electrical problems in May, June and July 2008). It  
can therefore be confirmed that while the wiring of the fog lights is  
questionable, it did not contribute to the accident.  
It is not possible to determine how the nut became loose. However, it is  
concerning that essential vehicle operation can be catastrophically affected  
by a simple terminal failure such as that exhibited here. As a minimum, I  
would expect that two nuts are applied to each terminal in a lock nut  
arrangement. Alternatively, a nylon lock nut should be used. Additionally, it is  
strongly recommended that the terminal nuts on all Volvo semi tractors are  
checked as part of routine maintenance by Yanke and all other operators, to  
ensure that they are adequately tight. This issue should be raised with  
Transport Canada who may elect to issue a recall or a notice bulletin.  
[My emphasis.]  
[310] The plaintiffs submit that the admission that the electrical failure that resulted  
in the collision was caused by a loose cab positive terminal nut and the exclusion of  
installation of the fog lights as a possible cause of the loosening of that nut must  
lead to the conclusion that the nut was either negligently installed or that the design  
of the cab positive terminal and nut arrangement was negligent.  
[311] Volvo submits that Mr. Hewitt’s evidence is both unreliable and is discredited  
because of errors he later made concerning his recall of the configuration of the nut  
and washer assembly on the cab positive terminal at the time of his inspection.  
[312] Volvo further submits that the evidence does not establish either that the  
design of the nut and washer configuration was negligent or that the nut was  
negligently installed during manufacture.  
[313] In response, the plaintiffs submit that the submissions of Volvo that the  
loosening of the nut on the cab positive terminal was the consequence of other than  
Volvo’s negligent installation or design, is speculative.  
Hans v. Volvo Trucks North America Inc.  
Page 68  
[314] I will discuss issues concerning the reliability of Mr. Hewitt’s evidence as well  
as the evidence concerning negligent manufacture and design later in these reasons  
but must first discuss the contentious issues raised in argument concerning burden  
of proving the standard of care and an alleged breach of that standard that apply in  
cases alleging manufacturer’s liability in the sale of defective products.  
B.  
Proof of the Duty of Care  
[315] Proof of the duty of care owed by Volvo to the plaintiffs is established by the  
existence of proximity between Volvo as the manufacturer and seller of the Truck  
that suffered the massive electrical failure that caused the collision on January 31,  
2009 when being utilized for its intended use.  
[316] In Bergen v. Guliker, 2015 BCCA 283 at paras. 59 to 61 the Court stated:  
[59]  
The existence of a duty of care is generally resolved by applying the  
two-stage inquiry developed in Anns v. Merton London Borough Council,  
[1978] A.C. 728 (H.L.) as adopted and refined in Cooper v. Hobart, 2001 SCC  
79 (collectively referred to as the “Anns/Cooper” test), and applied in Hill.  
However, before undertaking the two-stage inquiry, one must ask whether the  
category of relationship in which the duty of care is alleged to exist has  
previously been recognized in the jurisprudence.  
[60]  
An example of this approach is found in Childs v. Desormeaux,  
2006 SCC 18. There, the Court observed that as the case law evolves,  
categories of relationships giving rise to a duty of care may be recognized,  
making it redundant to undergo another Anns/Cooper analysis with respect to  
that already recognized category of relationship:  
[15]  
A preliminary point arises from a nuance on the Anns test  
developed in Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79.  
The Court in Cooper introduced the idea that as the case law  
develops, categories of relationships giving rise to a duty of care may  
be recognized, making it unnecessary to go through the Anns  
analysis. The reference to categories simply captures the basic notion  
of precedent: where a case is like another case where a duty has  
been recognized, one may usually infer that sufficient proximity is  
present and that if the risk of injury was foreseeable, a prima facie  
duty of care will arise. On the other hand, if a case does not clearly fall  
within a relationship previously recognized as giving rise to a duty of  
care, it is necessary to carefully consider whether proximity is  
established. Following Cooper, the first issue raised in this case is  
whether claims against private hosts for alcohol-related injuries  
caused by a guest constitute a new category of claim. Like the courts  
below, I conclude that it does [Emphasis added.]  
 
Hans v. Volvo Trucks North America Inc.  
Page 69  
See also Design Services Ltd. v. Canada, 2008 SCC 22 at para. 27;  
Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para. 5. For a  
discussion of the established categories, see Cooper at para. 36.  
[61]  
If the claim does not fall within a category in which a duty of care  
has previously been recognized, a fresh duty of care analysis must be  
undertaken to determine whether a “new” or “novel” duty of care should be  
recognized in the circumstances (Cooper at para. 39).  
[317] It is well established that a duty of care is owed by an automobile  
manufacturer not only to purchasers but subsequent users of their products.  
[318] The issue in this case is not whether a duty of care was owed by Volvo with  
respect to the manufacture and design of the cab positive terminal nut and washer  
configuration on the plaintiffs’ Truck. It is whether Volvo breached the standard of  
care it owed to the plaintiffs.  
C.  
Proof of the Standard of Care  
[319] Volvo submits that the plaintiffs’ burden of proving a breach of the requisite  
standard of care in the design and manufacture of the cab positive terminal and its  
washer and nut configuration could only be established by expert evidence. It  
submits that because no such evidence was adduced by the plaintiffs their claim  
must fail.  
[320] In making that submission and its submissions generally concerning proof of  
the requisite standard of care and a breach of it, Volvo relied upon Laidar Holdings  
Ltd. v. Lindt & Sprungli (Canada) Inc., 2015 BCSC 845; Roy v. British Columbia  
(Attorney General), 2005 BCCA 88; Latkin v. Vancouver (City), 2013 BCSC 2270;  
Pinarreta v. Abreu Refrigeration Ltd., [2009] O.J. No. 4728 (Ont. Sup. Ct. J.); and  
Haag v. Marshall (1989), 39 B.C.L.R. (2d) 205 (C.A.).  
[321] Volvo’s submissions related to proof of the standard or care and the need for  
expert evidence are, for the most part, based upon authorities related to the  
standards of care applicable to professionals including lawyers, real estate agents  
and police officers.  
 
Hans v. Volvo Trucks North America Inc.  
Page 70  
[322] Those authorities are of little, if any, assistance to the resolution of the issues  
in this case which concerns allegations of Volvo’s negligent design and manufacture  
of the Truck.  
[323] Issues concerning the proof of the standard of care as well as the purported  
need for expert evidence to establish that standard of care and an alleged breach of  
it in a manufacturer’s liability case were comprehensively addressed by the Nova  
Scotia Court of Appeal in Johansson v. General Motors of Canada Ltd., 2012 NSCA  
120 [Johansson].  
[324] In Johansson, when Mrs. Johansson’s Chevrolet Lumina veered off the road  
she suffered a serious brain injury. A few years later General Motors issued a recall  
notice citing a “steering defect” in those vehicles and Mrs. Johansson sued the  
manufacturer.  
[325] After Mrs. Johansson closed her case in the ensuing jury trial the trial judge  
granted General Motor’s non-suit motion and dismissed her action.  
[326] In doing so the trial judge said that he was “satisfied that a prima facie case  
has been established that the plaintiff’s Lumina was defective” and “that the defect  
caused the accident. He then, however, ruled that there was no evidence to  
establish General Motor’s standard of care or breach of that standard.  
[327] Concerning the underlying basis for that ruling and the issues raised on  
appeal, the Nova Scotia Court of Appeal wrote at paras. 2 and 3:  
[2]  
The judge viewed the Supreme Court of Canada’s treatment of res  
ipsa loquitur in Fontaine v. British Columbia (Official Administrator), [1998] 1  
S.C.R. 424 as making it “substantially more difficult” for a plaintiff to resist a  
non-suit motion. According to the judge, allowing a jury to decide whether or  
not negligence may be inferred from evidence related to the “defect” is  
“reasoning [that] falls precisely within the definition of strict liability”. He said  
either evidence of a “regulatory benchmark” or expert evidence was essential  
for a prima facie case. These views informed the judge’s non-suit of  
Mrs. Johansson’s claim.  
[3]  
The issue is whether the ruling contains an appealable error in the  
application of the non-suit test to a negligence action.  
Hans v. Volvo Trucks North America Inc.  
Page 71  
[328] In allowing the appeal and ordering a new trial the Nova Scotia Court of  
Appeal explicitly rejected the trial judge’s conclusion that allowing the jury to infer  
negligence from evidence related to the “defect” is reasoning that falls within the  
definition of strict liability. At paras. 80 and 81 the Court wrote:  
[80]  
I don’t behold any hovering spectre of strict liability. The judge and  
GMC confuse liability without negligence with the jury’s function of deciding  
whether or not to reasonably infer negligence.  
[81]  
Drawing inferences is standard fare for juries. An inference is a  
finding deduced or induced from a premise without direct evidence of the  
inferred fact. It is a factual jump on the reasoning path. The judge ensures  
that the span is not so broad or irrational that a reasonable jury would  
stumble. Otherwise the system trusts the jury’s common sense and agility to  
mind the gap and land softly. To resolve the non-suit motion simply because  
there is no direct evidence of GMC’s standard of care for rack and pinion  
steering assemblies, is to emasculate the jury’s function of assessing whether  
or not to reasonably infer the standard’s particulars from appropriate  
evidence. In Grant v. Australian Knitting Mills Limited, [1936] A.C. 85 (H.L.),  
pp. 96 and 101, Lord Wright, in well known extracts, discussed the process of  
inference from circumstantial evidence in a products liability case:  
... [The defendant’s counsel] contended that the appellant’s case  
involved arguing in a circle; his argument, he said, was that the  
garments must have caused the dermatitis because they contained  
excess sulphites, and must have contained excess sulphites because  
they caused the disease: but nought, he said, added to nought still is  
no more than nought. This, however, does not do justice either to the  
process of reasoning by way of probable inference which has to do so  
much in human affairs, or to the nature of circumstantial evidence in  
law courts. Mathematical, or strict logical, demonstration is generally  
impossible: juries are in practice told that they must act on such  
reasonable balance of probabilities as would suffice to determine a  
reasonable man to take a decision in the grave affairs of life. Pieces  
of evidence, each by itself insufficient, may together constitute a  
significant whole, and justify by their combined effect a conclusion.  
...  
But when the position of the manufacturers is considered, different  
questions arise: there is no privity of contract between the appellant  
and the manufacturers: between them the liability, if any, must be in  
tort, and the gist of the cause of action is negligence. The facts set  
out in the foregoing show, in their Lordships’ judgment, negligence in  
manufacture. According to the evidence, the method of manufacture  
was correct: the danger of excess sulphites being left was  
recognized and was guarded against: the process was intended to  
be fool proof. If excess sulphites were left in the garment, that could  
only be because some one was at fault. The appellant is not required  
to lay his finger on the exact person in all the chain who was  
responsible, or to specify what he did wrong. Negligence is found as  
Hans v. Volvo Trucks North America Inc.  
a matter of inference from the existence of the defects taken in  
Page 72  
connection with all the known circumstances: even if the  
manufacturers could by apt evidence have rebutted that inference  
they have not done so.  
[Emphasis added in Johansson]  
[329] After then discussing the available evidence from which inferences of  
negligence could be drawn the Court said at paras. 83 to 85:  
[83]  
Each case turns on its own evidence. Nonetheless, it is instructive  
to overlay Mrs. Johansson’s circumstances onto the background of other  
cases and textual authorities that discuss whether inferences reasonably may  
be drawn from an equivalent evidentiary premise.  
[84]  
Farro, Marchuk and Newfoundland Light and Power are examples  
where three appellate courts acknowledged that similar inferences were  
available to establish the standard of care and its breach. To this list may be  
added Chief Justice MacKeigan’s comments in Smith v. Inglis Limited (1978),  
25 N.S.R. (2d) 38 (S.C.A.D.), para 8, that were adopted by the Ontario Court  
of Appeal in Farro, para 19 (quoted above, para 52). Chief Justice  
MacKeigan (para 9) noted that he was not invoking res ipsa loquitur, then  
(paras 9 ff) elaborated on the inference of negligence from evidence  
surrounding a defect that existed in the product when it left the manufacturer.  
[85]  
Klar, Tort Law (5th ed. 2012), p. 382, states:  
As stated by Waddams, and agreed to by the courts, where a product  
has been manufactured with a defect, and this defect has resulted in  
the plaintiff’s injuries, “the inference of negligence is practically  
irresistible”. This inference is predicated upon proof that the defect  
was in the product when it left the manufacturer.  
To the same effect: S. M. Waddams, Products Liability, 5th ed. (Toronto:  
Thomson Reuters Canada Limited, 2011) at pp. 69-70; Linden and  
Feldthusen, Canadian Tort Law, (9th ed. 2011), pp. 632-33; Cassels and  
Jones, The Law of Large-Scale Claims, (2005), p. 34; Dean F. Edgell,  
Product Liability Law in Canada (Markham, Ont.: Butterworths, 2000) at pp  
25-26; Lewis W. Klar, Allen M. Linden et al., Remedies in Tort, vol. 3,  
(Carswell, 2011), para 45, pp. 20-37 and 20-38; and the case authorities cited  
in these passages. These texts post-date Fontaine.  
[330] I adopt that reasoning.  
[331] The Nova Scotia Court of Appeal also rejected the trial judge’s conclusions  
that evidence of a “regulatory benchmark” or “industry practices” (not at issue in this  
case) or expert evidence is required to establish the requisite standard of care in a  
case of product liability.  
Hans v. Volvo Trucks North America Inc.  
Page 73  
[332] On the issue of the need for expert evidence, the Court of Appeal stated at  
paras. 112 to 116:  
[112] The judge, in Mrs. Johansson’s case, referred to Crits, supra, and  
Krawchuk v. Scherbak, 2011 ONCA 352 as authority that expert evidence is  
required to establish the standard of care. Crits and Krawchuk discussed  
professional negligence claims. Neither involved a non-suit. The judge (see  
above, paras 91-2) moved seamlessly from professional negligence to  
products liability, and ruled that, absent evidence from Mrs. Johansson on  
industry practice respecting rack and pinion steering, a non-suit was in order.  
[113] The leading authority on the need for expert evidence in professional  
negligence cases is ter Neuzen v. Korn, [1995] 3 S.C.R. 674, a negligence  
claim against an obstetrician and gynaecologist. The plaintiff contracted HIV  
from the defendant’s procedure for artificial insemination. The procedure  
occurred in the early 1980s, before the first published case of HIV  
transmission from artificial insemination. There was expert evidence that the  
defendant’s approach complied with gynaecological practices in Canada at  
the time. The jury nonetheless found the defendant negligent. There was no  
non-suit. The Court of Appeal overturned the verdict and ordered a new  
trial. The Supreme Court of Canada dismissed the appeal. The case turned  
on what knowledge of HIV risk was available in the profession at the time of  
the procedure. Justice Sopinka said:  
44 As was observed in Lapointe, courts should not involve  
themselves in resolving scientific disputes which require the expertise  
of the profession. Courts and juries do not have the necessary  
expertise to assess technical matters relating to the diagnosis or  
treatment of patients. Where a common and accepted course of  
conduct is adopted based on the specialized and technical expertise  
of professionals, it is unsatisfactory for a finder of fact to conclude that  
such a standard was inherently negligent. On the other hand, matters  
falling within the ordinary common sense of juries can be judged to be  
negligent. For example, where there are obvious existing alternatives  
which any reasonable person would utilize in order to avoid a risk, one  
could conclude that the failure to adopt such measures is negligent  
notwithstanding that it is the prevailing practice among practitioners in  
the area.  
[114] I disagree with the judge that the principles respecting expert  
evidence in professional negligence cases support a non-suit of  
Mrs. Johansson’s claim.  
[115] The standard of care for each professional is defined with reference  
to his or her profession. Linden and Feldthusen, Canadian Tort Law, (9th ed.  
2011), p 165, under the heading “Professional Negligence”, states:  
In all these cases, the courts are balancing the interests of the clients  
or patients in receiving skilled service as well as the interests of  
professional people in a certain degree of autonomy in their dealings  
with the community. As always, an uneasy compromise has been  
reached.  
Hans v. Volvo Trucks North America Inc.  
Page 74  
Every recognized professional group has its own individual standard -  
a standard to which all the members of the profession must  
conform. Chief Justice McLachlin, for example, has asserted that, in  
conducting an investigation, the standard of care required of the  
police is that of a “reasonable police officer in all the circumstances”.  
Surveyors, for an example, must “exercise a reasonable amount of  
care and a reasonably competent degree of skill and knowledge”. A  
chiropractor’s diagnosis, for another example, must be “sufficient by  
chiropractic standards”. A similar obligation, which is said by some to  
be based on contract, rests on engineers, architects, accountants and  
others.  
It follows that evidence related to the standards of the defendant’s particular  
profession is in order. In ter Neuzen v. Korn, for example, the case pivoted  
on the awareness, in the gynaecological profession, of HIV risk in the early  
1980s, a topic tailored for expert evidence.  
[116] The same cannot be said in this case. GMC’s standard is to use  
reasonable care in the circumstances. From Justice Major’s comments in  
Ryan, those circumstances may, but do not necessarily, include industry  
standards. Expert evidence of industry standards would be relevant, but is  
not legally mandatory for a claim such as Mrs. Johansson’s.  
[My emphasis.]  
[333] I also adopt that reasoning.  
D.  
Principles to be Applied in Determining Liability for Alleged  
Negligent Manufacture or Design  
[334] After reviewing all of the authorities provided by counsel, many of which were  
considered in Johansson, and the submissions of counsel I have concluded that the  
following principles must be applied in determining whether the plaintiffs have  
proven that Volvo was negligent in the manufacture or design of the configuration of  
the nut and washer assembly on the cab positive terminal which resulted in the  
loose nut on that terminal that caused the collision, or in failing to warn the plaintiffs  
that unspecified hardware was used in the manufacture of the Truck.  
1) The plaintiffs have the burden of proving on a balance of probabilities that  
Volvo was negligent in either the manufacture or design of the cab positive  
terminal or failed in fulfilling a duty to warn.  
2) To prove negligent manufacture the plaintiffs must prove that the cab positive  
terminal assembly was defective when it left the manufacturer’s plant. See:  
 
Hans v. Volvo Trucks North America Inc.  
Page 75  
Lewis N. Klar, Tort Law, 4th ed. (Toronto: Thomson Carswell, 2008) [Klar];  
Daishowa-Marubeni International Ltd. v. Toshiba International Corp, 2010  
ABQB 627 at para. 58; Meisel v. Tolko Industries Ltd., 1991 120  
(B.C.S.C.) [Meisel], and Johansson at para. 85.  
3) If that is proven the inference of negligence is “practically irresistible”: See:  
Klar; Meisel and Johansson (at para. 85). That is so because:  
“the argument is that either the manufacturer’s system was at fault, or if  
the system was sound then an individual employee must have been  
negligent. In either case the manufacturer is liable and the plaintiff need  
not prove exactly how the defect arose.”  
4) The plaintiffs’ burden of proving that Volvo was responsible for the defective  
cab positive terminal assembly that caused the collision damages may be  
discharged by circumstantial evidence that the defect was there when the  
assembly left the manufacturer’s plant. That can be done by “excluding the  
possibility that some other person created the hazard after the product left the  
factory”: See: Smith v. Inglis Ltd. (1978), 25 N.S.R. (2d) 38 (C.A.) at para. 8;  
Johansson at para. 85; and Farro v. Nutone Electrical Ltd. (1990), 72 O.R.  
(2d) 637 (C.A.) [Farro] at para. 52.  
5) A manufacturer is responsible for a component manufactured elsewhere and  
installed in the manufacturer’s product. See: Farro at paras. 11 and 12; and,  
Pennock v. Aerostar International, Inc., 2012 BCSC 1422 at paras. 51 and 52.  
6) To succeed on their allegations of negligent design the plaintiffs must identify  
the design defect in the cab positive terminal nut and washer assembly;  
establish that the design defect created a substantial likelihood of harm; and,  
also establish the existence of an alternative design that is safer and  
economically feasible to manufacture. See: Rentway Canada Ltd. v. Laidlaw  
Transport Ltd. (1989), 49 C.C.L.T. 150 (Ont. H.C.) at page 10, aff’d [1994]  
O.J. No. 50 (C.A.); and Kreutner v. Waterloo Oxford Co-operative Inc. (2000),  
50 O.R. (3d) 140 (C.A.) at para. 11.  
Hans v. Volvo Trucks North America Inc.  
Page 76  
7) Evidence of remedial measures taken by a defendant after a loss is not an  
admission of negligence. See: Anderson v. Maple Ridge (1992), 71 B.C.L.R.  
(2d) 68 (C.A.) at page 76; and Beazley v. Suzuki Motor Corp., 2008 BCSC  
850 at para. 39.  
8) However, if remedial measures are such that they demonstrate that a safer  
product could be made relatively easily and cheaply, post-accident remedial  
conduct is admissible for proof of that fact. See: Sandhu (Litigation Guardian)  
v. Wellington Place Apartments, 2008 ONCA 215 at paras. 51 to 57 in which  
the Court wrote:  
[56]  
The impugned evidence in this case provides an example of  
such a situation. Apart from any inference of an admission of liability,  
the fact that repairs to the screens were made quickly and  
inexpensively after the accident was relevant in other ways. It was  
evidence from which the jury could infer that the appellants had failed  
to meet a reasonable standard in keeping the building in good  
repair. The evidence of repairs could also be evidence of a failure to  
take reasonable care because it was capable of showing that the  
appellants’ inspection of the building before the accident failed to  
meet a reasonable standard.  
[57]  
Similarly, the evidence concerning the safety locks was also  
relevant to the issue of reasonable care. Evidence was led showing  
that the standard of care required installation of child safety locks. In  
determining whether the defendants acted reasonably in not installing  
those locks, the cost and ease with which such locks could be  
installed was relevant. A comparable conclusion was reached in  
James v. River East School Division No. 9 (1975), 64 D.L.R. (3d) 338  
(Man. C.A.), where that court reviewed a number of the authorities  
and found that evidence of subsequent remedial measures was  
relevant to the question of negligence.  
9) A manufacturer has an ongoing duty to warn users of a defect in the design or  
manufacture of a product when it becomes aware of such a defect. The  
nature and scope of the manufacturer’s duty to warn varies with the level of  
danger entailed by the ordinary use of the product. See: Hollis v. Dow  
Corning Corp., [1995] 4 S.C.R. 634 at paras. 20 to 22.  
Hans v. Volvo Trucks North America Inc.  
Page 77  
E.  
Evidence Concerning the Design and Installation of the Hardware  
on the Cab Positive Terminal of the Truck  
[335] Assessment of whether the plaintiffs have proven that Volvo failed to meet the  
requisite standard of care as to the configuration and assembly of the hardware on  
the cab positive terminal of the Truck requires consideration of not only the design  
specifications in place at the time of the production of the Truck but also the  
procedures in effect for the installation of the component parts during assembly.  
[336] A complex pass through plate is installed in all Volvo trucks to allow  
transference of required electrical and other operational services from the batteries  
on the driver’s (cab) side of the vehicle to the engine compartment.  
[337] The cab positive and negative terminals (respectively threaded power and  
ground studs on the cab side) comprise part of that pass through plate.  
[338] Electrical wiring is connected to the two terminals by means of ring terminals  
(spade connectors) bolted in place on the terminals by a nut and washer and  
torqued to the specifications required by Volvo’s design engineers.  
[339] The design specifications of the nut and washer, the sequencing of them on  
the cab side positive terminal of the Truck as well as the extent to which the nut was  
“torqued” at the factory during installation are all at issue in this case.  
[340] At all material times the pass through plates as well as the washers and nuts  
on the cab positive studs that were installed in all Volvo 780 trucks were supplied to  
Volvo by a sub-contractor identified as “Norgren”.  
[341] Comparison of Volvo’s design requirements and communications between  
Volvo and Norgren both before and after the collision establishes that when the  
Truck was assembled Norgren was not supplying the type of nuts specified by Volvo  
for the cab positive terminals.  
 
Hans v. Volvo Trucks North America Inc.  
Page 78  
[342] The evidence also establishes that after the collision changes were made to  
Volvo’s specifications by adding high level criticality ratings to its installation  
instructions with respect to the installation of wiring on the cab positive terminal.  
[343] The evidence on this issue is necessarily complex and was thoroughly  
addressed by the plaintiffs’ expert witness Dr. Srikantha Phani both in his  
comprehensive report dated August 21, 2015 and in his evidence at trial.  
[344] No evidence contrary to that of Dr. Phani was adduced by Volvo.  
[345] I am satisfied that Dr. Phani was not only well qualified to assist the Court in  
his interpretation of Volvo’s drawings and specifications but also to assess the  
importance of the assignment of criticality factors to design and installation issues  
not only generally but also specifically with respect to the issues requiring  
determination in this case.  
[346] After considering Dr. Phani’s report, the drawings, specifications and  
communications which he reviewed which were appended to his report as well as  
his examination in chief and in cross-examination and the evidence of Mr. Hewitt to  
which I will later refer in more detail I have concluded that:  
1)  
In 2007, when the Truck was manufactured, Volvo specified that a SEMS  
type nut with a captive washer was to be used to join the necessary two  
electrical rings or spade connectors to the cab positive terminal of Volvo  
780 trucks. However, when the Truck was assembled because that  
specified hardware was not supplied by Norgren it was not used.  
2) That failure to follow specifications is evidenced by the following  
correspondence between and amongst employees of Volvo and Norgren:  
a) In an email dated October 9, 2008, more than 3 months before the  
collision of January 31, 2009, Mr. Chad Olmstead, a Senior Design  
Engineer, wrote to a Volvo purchasing employee stating:  
Hans v. Volvo Trucks North America Inc.  
Page 79  
I'm investigating an issue with the power/ground posts on the pass  
through plate. I asked you about the torque values and got that  
info from Stephen Dilts like you suggested. Theres another part to  
this that Im having a hard time pin pointing and that is whether or  
not those pass through plates are coming from the supplier with a  
Spring washer in the stud stack up or if the production line is  
adding them to the stack up when they install the terminals.  
b) Volvo learned that day that Norgren was the supplier and was  
supplying the “wrong hardware”.  
c) After follow-up communications, a Norgren employee advised Volvo  
that:  
This arrangement was redesigned as part of a cost reduction a  
few years ago. As you can see both versions should have a spring  
washer between the stud shoulder and the nut.  
d) On November 13, 2008, Volvo again communicated with Norgren  
saying:  
Jeff, here is a copy of the past drawing. As you can see there is  
no spring washer called out and the drawing calls out for a captive  
washer nut.  
Did anyone at Volvo approve this cost reduction? If so could you  
please send me the dev. number approving this.  
[My emphasis.]  
e) In further correspondence dated November 19, 2008, Volvo advised  
Norgren’s employee:  
Hey Jeff, I'm looking at this as a part not supplied according to  
print as the Volvo drawing is the master document which you  
should be building the parts too. The sems nut was spec’d when  
we changed to the single power studs to prevent this sort of  
problem in manufacturing and the field. The sems nut requirement  
is not going to change.  
I guess the next question is, when did you make this change?  
[My emphasis.]  
f) Norgren responded that day stating:  
All I can confirm is that Norgren made a change to machine the  
nut in-house and to add a separate washer. This was to replace  
Hans v. Volvo Trucks North America Inc.  
Page 80  
the old assembly - nut with retained washer. I believe that we  
provided a sample for Volvo to review but I cannot locate any  
supporting documentation (neither an engineering change request  
or approval). The engineer that made the change is no longer with  
Norgren so it is difficult to track all the records. I'm still trying and  
may find something soon.  
Meanwhile, we have differing designs on our respective drawings.  
From the email string I believe that the major issue is that the  
installation is either without a washer all together (either lost by  
the installer or not on the manifold assembly when received) or  
gets installed in the wrong order. Both of these problems may be  
related to the fact that the Volvo drawing does not show the  
separate washer so the installer does not know the correct  
installation procedure. Would you consider changing the Volvo  
drawing to reflect the separate washer so that the correct  
installation process could be incorporated into the Volvo work  
instruction? Otherwise we would have to revert back to the old  
style, which would require a revision to all the manifolds and re-  
submission of all related documentation.  
[My emphasis.]  
3) That correspondence underscores the validity of Dr. Phani’s opinion that the  
lack of captive washer capability can potentially lead to incorrect assembly  
such as by placing the washer under the ring terminal or missing the washer  
completely in the installation process.  
4) Because the physical evidence of what washers were actually used in  
joining the electrical wiring to the cab positive terminal in the Truck was lost  
after the inspection and cannot be assessed by examination of the available  
photographic evidence, there is no definitive evidence as to whether a wave  
(or spring washer) and nut or a flat washer and nut were being supplied by  
Norgren in place of the specified SEMS nut with a captive washer. However,  
since the previous specification called for an ordinary nut with a wave (or  
spring) washer, it is likely that Norgren was continuing to supply that  
hardware.  
5) Dr. Phani testified that if a spring washer and a plain nut is used to counter  
vibration during use that combination will be roughly 5 times as effective as  
a plain nut without a “tooth-type lock washer”. He also, however, testified  
Hans v. Volvo Trucks North America Inc.  
Page 81  
that the combination of a spring or wave washer with a plain nut is roughly  
equivalent to the specified SEMS nut with a captive washer as a means of  
countering loosening caused by vibration.  
6) I find that with respect to the issues of alleged negligence in this case the  
most important difference related to the intended use of the SEMS nut,  
rather than the plain nut with spring washer called for in the previous design,  
is that with the captive washer the potential for improper sequencing of the  
installation of nuts and washers or failure to install a washer at all is  
eliminated.  
7) However, (as I will later discuss when considering the totality of evidence of  
Mr. Hewitt and specifically in respect of findings made at paras. 380, 381,  
387 and 390(2) of these reasons), since there is no evidence capable of  
establishing that any washer that was supplied by Norgren was incorrectly  
installed, the remaining question is whether Volvo was negligent in failing to  
ensure that the nut and washer assembly that was installed on the cab  
positive terminal of the Truck was tightened to the requisite design  
specification during assembly.  
8) No action was taken by Volvo at any time to remedy the Norgren’s failure to  
supply the specified SEMS nut with respect to those vehicles, including the  
Truck, that were in operation and had been manufactured with the non-  
compliant hardware and possible incorrect configuration of the nut and  
washer on the cab positive terminal. Also, no warnings of associated  
possible risks were given to the owners of those trucks when Volvo became  
aware of the Norgren’s failure to follow Volvo’s design specifications.  
9) After the collision, however, and the investigation of it conducted by  
Mr. Timothy Lafon, Volvo’s Manager of Public Safety for North America, and  
Mr. Lafon’s own discovery of the supply of non-compliant hardware by  
Norgren, Volvo took steps in April or May of 2009 to ensure use of the  
Hans v. Volvo Trucks North America Inc.  
Page 82  
specified SEMS nuts on trucks that had been manufactured but not yet  
delivered to dealers for sale.  
10) After the collision Volvo also made alterations to its design specifications  
with respect to the installation of the hardware on the cab positive terminal  
of its Volvo 780 trucks as I will next discuss.  
11) When the Truck was assembled no criticality designation had been  
assigned by Volvo to the torque values required for the installation of the  
hardware (including nuts and washers) on cab positive terminals.  
12) At that time, Volvo’s design drawings specified that two ring terminals were  
to be attached to the cab positive terminal and that next in sequence on the  
stud were to be a washer followed by a nut. The torque values were  
specified as “10 +/- 2 Nm”.  
13) As noted above, specifically concerning torque values measured during the  
inspection of the Truck after the collision Mr. Hewitt wrote in his investigative  
report:  
Using an inch-pound torque wrench, the cab positive terminal nut  
was backed off. It was determined it was tightened to 25inch-lb (2ft-  
lb). The cab negative terminal was substantially tighter than this.  
Unfortunately, it was not possible to measure its torque value as we  
loosened the negative nut with a foot-lb torque wrench (prior to  
loosening the positive nut), which was not sensitive enough to record  
the value. All present agreed it was substantially tighter than 25inch-  
lb. The nuts on the engine compartment side of the terminal posts  
were tight.  
[My emphasis.]  
14) After the collision Volvo assigned criticality 1 alerts to those same torque  
values.  
15) I accept Dr. Phani’s opinion that criticality 1 is assigned to critical joints, the  
failure of which, will result in a critical loss of functionality which may affect  
not only functionality but the safety of users.  
Hans v. Volvo Trucks North America Inc.  
Page 83  
16) In Volvo’s internal standards criticality 1 is to be assigned where failure of a  
joint is liable to cause an accident affecting the safety of groups which  
includes vehicle users, road users, and passers-by.  
17) Assignment of criticality 1 to a joint assembly greatly reduces tolerance for  
any deviation from design specifications and requires maximum care in  
installation and testing to ensure adherence to the specified tolerances.  
18) I accept Dr. Phani’s opinions that:  
1. A loose nut on the positive terminal of the cab lead to multiple  
failures arising from resistance heating on the Volvo truck in question.  
2. Volvo engineers have identified melting in power studs as a  
problem as of October 2008. This problem seems to arise from an  
incorrect placement of a wave washer.  
3. Safe design of any fastener, including a bolted joint, requires the  
correct identification and designation of criticality characteristics. This  
would ensure the quality of supply chain management, as well as  
testing and assembly. In this instance, the positive terminal joint  
should have been classified as criticality 1, since this is a critical joint.  
4. Criticality 1 has been specified through the design change notice in  
the document 12 (design change D-14030-40), only after the accident.  
5. A rigorous failure analysis and safety consequences, conducted a  
priori, would have revealed that the correct criticality designation  
should have been 1. Had this been implemented, every component  
and assembly procedure would have met the drawing specification.  
6. To quote Volvo standard 105-001, “The identification and grading  
of critical characteristics are a means for the design department to  
inform subsequent stages about the consequences of non-compliance  
with a specified requirement. This will make it possible to steer the  
manufacturing and inspection resources to those requirements that  
are most important from a functional point of view.”  
7. Lack of such specification carries the risk of incorrect hardware,  
presumably of questionable ‘equivalence’ in performance, to be  
entertained as acceptable. This appears to be case in replacing  
SEMS nut with a separate nut and washer.  
[347] Concerning the application of Dr. Phani’s opinions to the design and  
manufacturing processes engaged in this case I find the evidence of Mr. Tom Martin  
as well as that of Mr. Lafon to be significant.  
Hans v. Volvo Trucks North America Inc.  
Page 84  
[348] Mr. Martin was a cab line repairman at the Volvo plant at which the wiring to  
the cab positive terminal was installed in the Truck before it was released for sale.  
Mr. Martin testified that as a cab line repairman in 2007 his job was to assist when  
difficulties arose in an assembly situation if his assistance was sought by an  
assembly line worker.  
[349] He testified that the process engaged was that pass through plates, which he  
called hot plates, were delivered to the factory in cardboard boxes. The nuts and  
washers were removed from each plate and laid on the floor. On the assembly line,  
once the two wires on the positive stud were attached and the nut and washers were  
placed on the stud, everything was tightened up and “torqued” to specification using  
an impact wrench. Thereafter, the vehicle was subjected to diagnostic testing and  
various other testing mechanisms before being approved for release from the Volvo  
plant.  
[350] Mr. Martin testified that he had never come across a situation where a washer  
was placed below the ring terminal on a cab positive stud or one in which two nuts  
were placed on a cab positive terminal.  
[351] Under cross-examination Mr. Martin acknowledged he was one of eight cab  
line repairmen at the Volvo plant in 2007 on any given shift and that two shifts were  
running for five days per week. He only worked the day shift.  
[352] Mr. Martin also testified that the processes involving the installation of the hot  
plate, placing of the wires on the studs, affixing the wires and tightening of the nuts  
and washers and placing the dash involved different workers. He said the bolting of  
the wires and placing of the dash would take about five minutes. No inspectors  
directly oversaw those processes. Also, once the hot plate is assembled and  
installed and the wires are attached to the cab negative and cab positive terminals, a  
cover is fitted onto the area and fastened with six screws.  
Hans v. Volvo Trucks North America Inc.  
Page 85  
[353] Mr. Martin testified that he had no knowledge of the investigation carried out  
by Mr. Lafon in 2009 or concerning problems with the wrong hardware being  
installed on cab positive terminals.  
[354] Concerning the issue of criticality and the transmission of those concepts to  
the assembly line Mr. Martin testified:  
Q
A
-- do you know what criticality 1 means?  
No, sir.  
Q
No one at Volvo ever explained to you that with respect to parts that  
could cause system-wide failure there had to be a particular care  
taken to assemble that part properly and to have the right part in the  
first place?  
A
Q
A
We -- we've got what's called a critical -- a critical 1, a critical 2, it's --  
it's things that could actually -- anything that would stop the truck or  
whatever or safety item was like a critical 1 joint.  
So how do you -- how do you identify on the line whether something is  
a critical 1 joint, how is that line of communication passed down to the  
person on the floor?  
That's the -- the Quality Department. The Quality Department takes  
that information to the floor and usually if it's a critical joint, like that,  
then they would be real particular in checking it to make sure  
everything is correct.  
[My emphasis.]  
[355] Mr. Martin also testified that:  
Q
Now, I take it from your previous answers you don't recall anyone  
from on high, I'll call it, because I don't know who it is Mr. -- do you  
know who Mr. Olmstead [phonetic] is, senior --  
A
No, sir.  
Q
Okay. But nobody in management or in Quality Control Engineering or  
that sort in -- in 2009 came down to the floor or communicated to the  
floor that there were some change -- criticality changes that had to be  
made to the pass-through plate?  
A
I think -- I never heard nothing about it.  
Q
And of course, being a line repairman, you would expect that that is  
something that you would hear about?  
A
Yes, sir.  
Hans v. Volvo Trucks North America Inc.  
Page 86  
[356] Concerning specifically the drawings in evidence before the collision and the  
subsequent designation of the cab positive and negative terminal torque  
specifications as critical 1 Mr. Martin testified:  
Q
… on the top there’s -- there are cross-sectional views of two things  
entitled power stud and ground stud. Do you recognize those?  
A
Q
A
Q
A
Q
Yes, sir.  
All right. And so there is a torque setting there, right?  
Yes, sir.  
But there is no criticality rating, do you agree?  
Agree.  
Okay. And so the information in -- when this drawing was operative  
would -- there would be no -- nothing conveyed down to the factory  
floor that this is a critical part, true?  
A
That's correct.  
[357] Mr. Martin also testified that he would have expected Volvo’s quality control  
department to advise line personnel of a problem with the wrong hardware being  
supplied or washers put in the wrong sequence but had no recall of being told that.  
He testified that if he had been advised of either situation it would have stood out in  
his mind.  
[358] Mr. Lafon’s evidence with respect to his investigation is also significant in that  
while he concluded from his review of warranty claims and service system reports  
that there was no systemic problem with loose nuts prior to the collision he also  
testified that: “We found some instances of nuts being loose from the factory”.  
F.  
Errors made by Mr. Hewitt concerning the Configuration of the  
Hardware on the Cab Positive Terminal  
[359] Before reaching a final conclusion on the issues of whether the plaintiffs have  
established that Volvo was negligent in the manufacture or design of the Truck it is  
necessary to address issues that arose during the trial concerning the evidence of  
Mr. Hewitt.  
[360] Those issues resulted in my ruling that the plaintiffs be allowed to recall  
Mr. Hewitt to testify about factual errors he had apparently made concerning his  
 
Hans v. Volvo Trucks North America Inc.  
Page 87  
testimony as to the hardware he said he had observed on the cab positive terminal  
of the Truck during his inspections of it in February of 2009.  
[361] As I have previously noted, Mr. Hewitt was commissioned by Yanke to  
inspect the Truck after the collision on January 31, 2009 and eventually testified as  
an expert witness in this trial. By reason of a ruling made in the pre-trial process  
Mr. Hewitt was declared to be a joint expert of the plaintiffs and Yanke.  
[362] That ruling did not, however, also make Mr. Hewitt a joint expert vis a vis  
Volvo.  
[363] After that ruling and also after Mr. Mackoff replaced Mr. Fleming as counsel  
for the plaintiffs, Mr. Mackoff wrote to Mr. Hewitt seeking further information about  
his investigation of the Truck.  
[364] In a letter dated February 3, 2015 Mr. Hewitt responded to Mr. Mackoff’s  
inquiry concerning the configuration of the hardware on the cab positive terminal as  
follows:  
Looking from the end of the stud and working backwards towards the fire  
wall of the truck, there was a nut (normal, not locking nut), a washer (normal,  
not locking type), spade connector to the main power conductor, another nut  
and then the bushing through which the stud passed.  
[My emphasis.]  
[365] That letter was also provided to counsel for both Yanke and Volvo when  
Mr. Hewitt sent it to Mr. Mackoff.  
[366] In his initial testimony Mr. Hewitt testified that his response to Mr. Mackoff  
was correct.  
[367] Evidence adduced later in the trial (including that of Mr. Martin) called into  
question Mr. Hewitt’s testimony concerning the number of electrical spade  
connectors attached to the cab positive terminal as well as the make-up and  
sequencing of the hardware.  
Hans v. Volvo Trucks North America Inc.  
Page 88  
[368] Mr. Hewitt’s evidence that there was one spade connector was not only  
entirely inconsistent with all of the drawings in evidence, but also obviously  
erroneous. That is so because if there had only been one spade connector attached  
to the cab positive terminal, according to the testimony of Mr. Martin which I accept,  
the Truck would not have been capable of being started or operated.  
[369] Of more substantive concern, however, was Mr. Hewitt’s evidence that at the  
time of his inspection there were two nuts on the cab positive terminal, one of which  
was behind the spade connector.  
[370] That evidence was used by Volvo as a foundation for their assertion that the  
loose nut on the cab positive terminal had resulted from the actions of some party  
other than Volvo after the Truck left the factory because the evidence of Mr. Martin  
and Mr. Lafon as well as the documentary evidence were consistent with Norgren  
supplying and Volvo installing a combination of a single nut and washer.  
[371] When those apparent inconsistencies between Mr. Hewitt’s evidence and the  
later contradictory evidence adduced during the trial came to light, counsel for the  
plaintiffs made further enquiries of Mr. Hewitt concerning his recall of the hardware  
and the sequencing of it on the cab positive terminal as reported by him in his letter  
of February 3, 2015.  
[372] On the plaintiffs’ application to have Mr. Hewitt recalled as a witness  
concerning that issue evidence was adduced that when Mr. Hewitt had provided the  
answers to Mr. Mackoff on February 3, 2015, he had done so from his review of the  
photographs in his report.  
[373] The evidence on that application also established that after further  
investigation of available data concerning the pass through plate manufactured by  
Norgren and after obtaining of photographs of the cab positive terminal taken by  
another of the engineers, who was present at the inspection in 2009, Mr. Hewitt  
realized that he had misinterpreted his own less clear photographs in answering  
Mr. Mackoff’s letter and had perpetuated that error in his original testimony.  
Hans v. Volvo Trucks North America Inc.  
Page 89  
[374] Over Volvo’s objections I allowed Mr. Hewitt to be recalled.  
[375] I did so because I was satisfied that the case should not be decided on the  
potentially erroneous interpretation of photographic evidence by a witness who had  
been declared a joint expert and who initially had made his report not only to Yanke  
but also Volvo and in circumstances in which the plaintiffs had no opportunity to  
examine the cab positive terminal and where all physical evidence had been  
destroyed.  
[376] I also made that ruling because Volvo had been represented at the inspection  
and was thus also in a position, if it chose to do so, to call evidence about the  
hardware and its configuration on the cab positive terminal at the time of the  
inspection.  
[377] When he was recalled Mr. Hewitt testified that his previous testimony about  
the existence of only one spade connector was wrong. In doing so he pointed to new  
photographs, which he had obtained from the other engineer who had attended the  
inspection, which showed two spade connectors attached to the cab positive  
terminal. That new photographic evidence was entered as an exhibit and  
corroborates the existence of the two terminals.  
[378] Mr. Hewitt also testified that his examination of the new photographs taken by  
the other engineer convinced him that he was wrong in his assertion that there were  
two nuts on the cab positive terminal with one nut being behind the spade connector.  
[379] Mr. Hewitt testified that he reached that conclusion both by visual examination  
of the new photographs and by counting the threads on the positive terminal as well  
as the width of the one nut depicted to conclusively prove to himself that there was  
insufficient room for there to have been two nuts on the terminal at the time of his  
inspection.  
[380] In addition, Mr. Hewitt clarified his evidence about some metalbehind the  
spade connector which he had erroneously thought to be a second nut. He testified  
that he could not with certainty say what the source of that metal behind the spade  
Hans v. Volvo Trucks North America Inc.  
Page 90  
connector that appeared to have been melted by heat was. He did, however, confirm  
that it was this melted metal material which he had misidentified as a second nut.  
[381] After considering the totality of the evidence I have concluded that Mr. Hewitt  
was wrong in his original testimony about the hardware on the cab positive terminal  
as well as its sequencing.  
[382] Mr. Hewitt’s errors arose because of his attempt to reconstruct his  
observations from less than satisfactory photographs taken by him at the time of the  
inspection that he had reviewed many years later.  
[383] It is fortunate that the additional photographs were still available so that his  
errors could be identified and corrected.  
[384] I have also concluded that Mr. Hewitt’s errors were wholly innocent. I find that  
he was an honest witness who fulfilled his role as an expert with integrity and with  
intent only to assist the Court. He was not an advocate and when wrong or unsure  
was frank to so admit. He took full responsibility for his errors and I reject any  
suggestion that his evidence was tailored to assist the plaintiffs.  
[385] While Mr. Hewitt’s erroneous interpretation of the photographs was  
unfortunate and caused some confusion and also required some time to analyse and  
resolve, I am satisfied that I can without hesitation accept his testimony when he  
was recalled because it was based on photographs now in evidence and easily  
substantiated by verifiable thread count calculations.  
[386] I accordingly find that the plaintiffs have proven on a balance of probabilities  
that one non-locking nut was used to secure two spade connectors to the cab  
positive terminal and that that single nut was loose when examined by Mr. Hewitt  
and others after the collision.  
[387] I also find that the evidence is not capable of establishing the existence of a  
washer behind the last spade connector.  
Hans v. Volvo Trucks North America Inc.  
G. Conclusions on Liability  
Page 91  
[388] With those findings in mind, I will next discuss the conclusions I have reached  
concerning Volvo’s alleged negligent manufacture and design of the Truck as well as  
its alleged breach of duty to warn the plaintiffs of the dangers inherent in the  
installation of non-compliant hardware on the cab positive terminal.  
1) Negligent Manufacture  
[389] After considering the totality of the evidence, the submissions of counsel and  
the authorities to which I was referred I have concluded that although Volvo's failure  
to use the specified SEMS nut in joining the electrical wires to the cab positive  
terminal was negligent, the plaintiffs have not proven that Volvo’s failure to do so  
caused the loosening of the nut during operation.  
[390] I reach that conclusion because:  
1) The evidence of Dr. Phani satisfies me that the effectiveness of the specified  
SEMS nut to counter vibration is no greater than that of the spring washer  
and regular nut that was likely supplied by Norgren in the place and used by  
Volvo in installation; and  
2) The evidence of Mr. Hewitt is not capable of establishing on a balance of  
probabilities that a washer was installed below the ring terminal contrary to  
specification.  
[391] I have, on the other hand, concluded that the plaintiffs have proven that Volvo  
was negligent in the installation of the hardware that was supplied by Norgren on the  
cab positive terminal of the Truck, and that the total loss of electrical power resulted  
from that negligent installation.  
[392] More specifically, I find that it is more likely than not that the loose nut on the  
cab positive terminal that caused the loss of electrical power was not tightened to  
the requisite torque value when the Truck left the factory. I reach that conclusion  
because:  
   
Hans v. Volvo Trucks North America Inc.  
Page 92  
1) It is admitted by Volvo that the collision was caused by a loose nut on the  
cab positive terminal.  
2) The totality of the evidence establishes that when the Truck was examined  
by Mr. Hewitt the nut on the cab positive terminal was loose when compared  
to that on the cab negative terminal.  
3) Mr. Hewitt posited the following four possible reasons for the loose nut:  
1. The nut was not sufficiently tightened by Volvo during initial  
assembly.  
2. The nut was not sufficiently tightened during maintenance.  
3. The nut became loose during operation.  
4. Mega Truck Repair loosened the nut while trying to install the fog-  
lights.  
4) I agree that those four possibilities accurately summarize the potential  
causes for the existence of the loose nut at the time of the collision.  
5) Volvo advanced the position in argument that it is more likely than not that  
some unknown third party – “probably one or more of the various  
technicians who serviced the vehicle after it left the factory” – is responsible  
for the loose nut.  
6) In part, that submission was based on Mr. Hewitt’s mistaken evidence about  
the configuration of the hardware on the cab positive terminal which was  
corrected when he was recalled, and in part it was based on the evidence of  
Mr. Martin concerning the use of a pre-set torque wrench when installing the  
nuts and washers supplied by Norgren.  
7) While I acknowledge the confusion caused by Mr. Hewitt’s earlier mistaken  
evidence, I am, as discussed above, satisfied that the totality of the  
evidence, and most specifically the new photographic evidence made  
available to him and entered into evidence at trial, does not support Volvo’s  
assertions of third party interference with the cab positive hardware.  
Hans v. Volvo Trucks North America Inc.  
Page 93  
8) Mr. Martin also testified that after the pass-through plates were installed and  
all electrical wiring was attached the assembly was covered with a cover  
plate installed with six screws.  
9) In that regard, the evidence of Mr. Hewitt is again important. As I have  
previously noted, in his expert report he wrote:  
The cab terminal nut in question is not an item routinely maintained.  
Discussions with the mechanic at Beaver Trucks concluded that if  
electrical faults had been reported to an operator, the cab terminal nut  
would not be the obvious place to trouble-shoot. It is therefore less  
likely that the nut was loosened as part of maintenance and not re-  
tightened.  
10) There is no evidence that any servicing of the Truck (other than the  
installation of the after-market fog lights as I will later discuss) was  
performed other than at a Volvo approved service centre. In that regard, I  
specifically note the service invoices and warranty claims generated by the  
defendant NTC as well as one performed at Sterling Trucks in Regina in  
July of 2008 before the electrical problem serviced there was referred for  
further action by NTC.  
11) The electrical problems with the Truck that pre-dated the collision and most  
specifically those experienced by the plaintiffs in Regina on July 4, 2008,  
when total power was also lost, support Mr. Hewitt’s opinion that:  
Invoice 14739 proves that the after market fog lights were installed in  
October 2008 (after the onset of electrical problems in May, June and  
July 2008). It can therefore be confirmed that while the wiring of the  
fog lights is questionable, it did not contribute to the accident.  
12) The electrical problems experienced in July of 2008 are of specific  
importance because of Mr. Hewitt’s unchallenged evidence in his report  
referred to in para. 83 that:  
The works described on the invoices listed above all relate to  
electrical issues, and seem to relate to one another. It is also  
interesting that on July 4, 2008, the main fuse was reported to have  
blown, but the truck was not towed to Sterling Trucks. Without the  
main fuse, presumably the truck would not have functioned. On July  
8, the owner asked Pacific Coast Heavy Truck Group to try and  
Hans v. Volvo Trucks North America Inc.  
diagnose the problems reported to Sterling on July 4. Pacific Coast  
Page 94  
were unable to diagnose any issues. It would therefore seem that this  
vehicle has suffered from sporadic electrical issues which appear  
similar and therefore potentially related to the failure on January 31,  
2009.  
13) If the main fuse had in fact been blown on July 4, 2008, Mr. Hans would not  
have been able to re-start the Truck by jiggling the wires at the battery  
terminal. He would have been unable to do so and then drive it to Sterling  
Trucks.  
14) That evidence supports Mr. Hewitt’s opinion that:  
The fact that the vehicle had suffered from engine failures at this time  
[July 9, 2008] indicates that the nut could have been loose from  
assembly given that the truck is relatively new.  
15) For all of the foregoing reasons I find that Volvo’s submission that a third  
party technician loosened the nut on the cab positive terminal is not  
supported by the evidence.  
16) That leads to the conclusion that the nut was either insufficiently tightened  
during installation or came loose during operation.  
17) While Mr. Martin’s evidence that a pre-set torque wrench was used to  
tighten the nuts on both the cab positive and cab negative terminals tends to  
support the proposition that the nut was correctly installed at the factory, the  
fact that the nut on the cab negative terminal remained tight during the  
same operational experience as that to which the cab positive terminal was  
exposed leads me to conclude that it is more likely than not that insufficient  
tightening of the nut on the cab positive terminal occurred during installation  
before the Truck left the Volvo assembly.  
18) The likelihood that that is what occurred is underscored by Mr. Lafon’s  
admission that he learned during his post-accident investigation that: “We  
found some instances of nuts being loose from the factory”.  
19) I do not accept Volvo’s assertion that Mr. Lafon’s evidence on this point is  
inadmissible hearsay. It is evidence that was led by Volvo as part of  
Hans v. Volvo Trucks North America Inc.  
Page 95  
Mr. Lafon’s testimony that he believed that the problem with loose nuts was  
not a systemic one. The fact that it was led for that purpose does not  
detract from its admissibility as an admission against Volvo’s interest on the  
issue of negligent manufacture.  
[393] It does not, in any event, matter whether the loose nut that caused the  
collision was loose when it left Volvo’s assembly plant or became loose during  
operation. I find that in either case the loose nut arose from a failure to tighten the  
nut to the specified torque values during installation so that it could become loose  
during operation when the cab negative terminal nut did not do so.  
[394] I find the totality of the evidence leads to the irresistible inference that the nut  
on the cab positive terminal of the Truck was negligently installed by Volvo.  
2) Negligent Design  
[395] I also find that Volvo was negligent in failing to assign criticality 1 rating to the  
hardware and torque specifications for the installation of the electrical wiring to the  
cab positive terminal.  
[396] I further find, as made clear by the evidence of Mr. Martin as to the special  
care that would be taken with an assembly with a criticality 1 rating, that Volvo’s  
failure to do so created a substantial likelihood of harm by increasing the likelihood  
of both improper installation of the washers and insufficient torque being applied to  
the nut during assembly.  
[397] Although the evidence is not capable of establishing on a balance of  
probabilities that the risk of an improperly placed washer materialized with respect to  
the Truck, communications between Volvo employees in October of 2008, to which I  
have referred, do establish that improper placement of washers had occurred with  
other trucks.  
[398] In the case of the Truck, an increase to the substantial risk of harm was  
created by not assigning the correct criticality 1 rating to the hardware and  
 
Hans v. Volvo Trucks North America Inc.  
Page 96  
installation procedure. That resulted in the Truck leaving the factory with loose nuts  
on the cab positive terminal.  
[399] I also find that since the addition of the correct criticality rating would have  
required installation of the specified hardware as well as more care in the tightening  
of the total assembly, the application of the correct criticality would have been both  
safer than the failure to do so as well as economically feasible.  
[400] I do not, however, find that the evidence is capable of establishing that Volvo  
was negligent in failing to specify the use of a locking nut rather than a SEMS nut on  
the cab positive terminal as Mr. Hewitt suggested. While such a design specification  
would have increased the ability of the assembly to withstand loosening during  
vibration, the totality of the evidence does not convince me that Volvo’s choice of  
hardware was the cause of the nut being loose. The design failure was in the failure  
to assign the correct criticality rating to the assembly process to ensure that the  
specified torque values were met.  
3) Breach of Duty to Warn  
[401] I have also concluded that the plaintiffs have established that Volvo breached  
its duty to warn them of the potential of a catastrophic electrical failure arising from  
Norgren’s supply and Volvo’s installation of hardware that was not specified by  
Volvo in respect of a critical joint.  
[402] Although Volvo had not yet assigned a criticality 1 rating to the cab positive  
terminal assembly, Volvo’s own criticality standards and application of them to the  
risk to users created by Norgren’s non-compliance with Volvo’s specifications gave  
rise to a situation where, no later than October of 2008, Volvo knew or ought to have  
known of the inherent danger created by that non-compliance.  
[403] I find that Volvo had a duty to notify owners of those Volvo 780 vehicles,  
including the Truck, that were not manufactured in accordance with Volvo’s  
specifications of that non-compliance and associated potential risk.  
 
Hans v. Volvo Trucks North America Inc.  
Page 97  
[404] As evidenced by Mr. Martin’s testimony and the evidence of the remedial  
measures that were taken after the collision with those trucks that had not yet been  
delivered for sale, the cost to take corrective remedial action for non-compliant  
trucks that were already in operation was minimal in comparison to the risk  
associated with non-compliance.  
[405] Remedial action would have required only the replacement of the non-  
compliant hardware but doing so would also, of necessity, have entailed re-  
tightening of the specified SEMS nut on the cab positive and negative terminals to  
the specified torque values.  
[406] I also find that if Volvo had warned the plaintiffs in October or November of  
2008 of the risk associated with the supply and installation of hardware in the Truck  
that did not comply with Volvo’s specifications, when it became aware of the  
problem, the plaintiffs would have delivered the Truck for remedial action. The  
totality of the evidence establishes that Mr. and Mrs. Hans regularly and diligently  
attended at Volvo’s service centers when problems with the Truck, including  
electrical problems arose.  
[407] I am satisfied that they would also have done so with respect to the cab  
positive terminal non-compliance had they been given notice of it.  
VII. CAUSATION  
[408] Volvo’s submissions as well as the plaintiffs’ now discontinued claims against  
Yanke make it necessary to consider issues of causation before considering the  
extent to which Volvo may be liable to the plaintiffs for the damages they have  
suffered.  
[409] Two issues of causation arise.  
[410] The first is whether the plaintiffs have proven causation to the requisite  
standard of proof. The second is whether, and if so, to what extent, the actions of  
 
Hans v. Volvo Trucks North America Inc.  
Page 98  
Yanke impact Volvo’s liability to compensate the plaintiffs for their losses arising  
from the collision.  
A.  
Causation and the ‘But for Test’  
[411] In Clements v. Clements, 2012 SCC 32 [Clements], the Supreme Court of  
Canada settled the test to be applied in Canada for proof of causation in cases of  
negligence.  
[412] In Clements, at issue was the use of the “material contribution to the risk” test  
as a substitute for the “but for” test of causation.  
[413] After reviewing existing jurisprudence, McLachlin C.J.C. for the majority  
stated (at para. 46):  
[46]  
The foregoing discussion leads me to the following conclusions as to  
the present state of the law in Canada:  
(1)  
As a general rule, a plaintiff cannot succeed unless she shows as  
a matter of fact that she would not have suffered the loss “but for” the  
negligent act or acts of the defendant. A trial judge is to take a robust and  
pragmatic approach to determining if a plaintiff has established that the  
defendant’s negligence caused her loss. Scientific proof of causation is  
not required.  
(2)  
Exceptionally, a plaintiff may succeed by showing that the  
defendant’s conduct materially contributed to risk of the plaintiff’s injury,  
where (a) the plaintiff has established that her loss would not have  
occurred “but for” the negligence of two or more tortfeasors, each  
possibly in fact responsible for the loss; and (b) the plaintiff, through no  
fault of her own, is unable to show that any one of the possible tortfeasors  
in fact was the necessary or “but for” cause of her injury, because each  
can point to one another as the possible “but for” cause of the injury,  
defeating a finding of causation on a balance of probabilities against  
anyone.  
[414] I am satisfied that in this case the “but for” test applies.  
[415] In discussing application of the “but for” test of causation in Clements, the  
Chief Justice stated at paras. 8 to 10:  
[8]  
… The plaintiff must show on a balance of probabilities that “but for”  
the defendant’s negligent act, the injury would not have occurred. Inherent in  
the phrase “but for” is the requirement that the defendant’s negligence was  
necessary to bring about the injury ― in other words that the injury would not  
 
Hans v. Volvo Trucks North America Inc.  
Page 99  
have occurred without the defendant’s negligence. This is a factual  
inquiry. If the plaintiff does not establish this on a balance of probabilities,  
having regard to all the evidence, her action against the defendant fails.  
[9]  
The “but for” causation test must be applied in a robust common  
sense fashion. There is no need for scientific evidence of the precise  
contribution the defendant’s negligence made to the injury. See Wilsher v.  
Essex Area Health Authority, [1988] A.C. 1074 (H.L.), at p. 1090, per Lord  
Bridge; Snell v. Farrell, [1990] 2 S.C.R. 311.  
[10]  
A common sense inference of “but for” causation from proof of  
negligence usually flows without difficulty. Evidence connecting the breach of  
duty to the injury suffered may permit the judge, depending on the  
circumstances, to infer that the defendant’s negligence probably caused the  
loss. See Snell and Athey v. Leonati, [1996] 3 S.C.R. 458. See also the  
discussion on this issue by the Australian courts: Betts v. Whittingslowe  
(1945), 71 C.L.R. 637 (H.C.), at p. 649; Bennett v. Minister of Community  
Welfare (1992), 176 C.L.R. 408 (H.C.), at pp. 415-16; Flounders v. Millar,  
[2007] NSWCA 238, 49 M.V.R. 53; Roads and Traffic Authority v. Royal,  
[2008] HCA 19, 245 A.L.R. 653, at paras. 137-44.  
[416] I have found that the loose nut on the cab positive terminal was caused by the  
negligent failure of Volvo to adhere to its own design specifications with respect to  
the tightening of that nut during its installation on the Truck in breach of the duty of  
care owed by Volvo to the plaintiffs.  
[417] Volvo has admitted that a loose nut caused the collision.  
[418] I find that causation has been established by the plaintiffs on a balance of  
probabilities.  
B.  
Impact of Yanke’s Actions on Volvo’s Liability  
[419] At para. 30(a) of its Response to the plaintiffs’ further amended notice of civil  
claim Volvo pleaded:  
30. In answer to paragraphs 85 to 88 of the FANOCC, the Volvo Defendants  
say that if the Plaintiffs suffered the injury, loss and damages alleged, which  
is not admitted but denied, such injury, loss and damages was not caused by  
the Accident or the acts or omissions of the Volvo Defendants, but rather  
were causes by other factors, including but not limited to:  
a. the treatment of the Plaintiffs by the Defendant Yanke;  
 
Hans v. Volvo Trucks North America Inc.  
Page 100  
[420] The plaintiffs’ claims against Yanke, as pleaded from time to time, all arose as  
a consequence of Mr. and Mrs. Hans’ employment by Yanke and Yanke’s  
termination of Mr. Hans’ employment immediately after the collision.  
[421] More specifically, Yanke’s actions which at one time or another formed the  
basis of claims by the plaintiffs included: the wrongful termination of Mr. Hans’  
employment; the manner of that termination; the involvement of Yanke in failing to  
fully share the results of Mr. Hewitt’s investigation into the cause of the collision;  
and, settlement of the repair costs to the Truck with Volvo without the plaintiffs’ input.  
[422] Although from time to time framed as a breach of fiduciary duty or as a  
breach of authority, in substance all of the plaintiffs’ claims against Yanke were  
either directly or indirectly founded in contract.  
[423] No evidence was adduced by either the plaintiffs or Volvo that was capable of  
establishing that any action taken by Yanke of which the plaintiffs complained was  
actionable in tort.  
[424] Although the evidence is clear that Mr. Hans and, to a lesser extent,  
Mrs. Hans blamed Yanke for some of the consequences of the collision, and  
particularly the failure to fully inform them of the results of the inspection before  
litigation was commenced, there is little, if any, evidence that but for the collision  
Yanke would have terminated Mr. Hans’ employment as and when it did.  
[425] Also, but for the collision there would have been no issue about the disclosure  
of an investigation that would never have occurred, no settlement with Volvo and no  
loss of the Truck through repossession and sale by Volvo Financial Services.  
[426] The totality of the evidence satisfies me that although Yanke’s actions after  
the collision were high handed and had some factual impact upon the plaintiffs’  
financial and emotional well-being, potentially compensable in damages for breach  
of contract, that impact did not arise as a consequence of any actions by Yanke as a  
joint tortfeasor with Volvo.  
Hans v. Volvo Trucks North America Inc.  
Page 101  
[427] In those circumstances, while the plaintiffs’ settlement with Yanke is relevant  
to the determination of the quantum of the final award to which the plaintiffs are  
entitled after the necessary B.C. Ferries analysis, the actions of Yanke do not impact  
the attribution of liability as between the plaintiffs and Volvo.  
[428] That is so because as noted in Clements at para. 12:  
[12]  
In some cases, an injury the loss for which the plaintiff claims  
compensation may flow from a number of different negligent acts  
committed by different actors, each of which is a necessary or “but for” cause  
of the injury. In such cases, the defendants are said to be jointly and  
severally liable. The judge or jury then apportions liability according to the  
degree of fault of each defendant pursuant to contributory negligence  
legislation.  
[429] In order for any issue of apportionment to arise, it is, however, necessary that  
there be at least two tortfeasors whose tortious acts each caused a plaintiff  
damages. In this case, only Volvo’s negligence is actionable in tort. Any claims by  
the plaintiffs against Yanke were only actionable in contract.  
[430] As stated by Major J. for the Supreme Court of Canada in Athey v. Leonati,  
[1996] 3 S.C.R. 458 at para. 12:  
12  
The respondents’ position is that where a loss is created by tortious  
and non-tortious causes, it is possible to apportion the loss according to the  
degree of causation. This is contrary to well-established principles. It has  
long been established that a defendant is liable for any injuries caused or  
contributed to by his or her negligence. If the defendant’s conduct is found to  
be a cause of the injury, the presence of other non-tortious contributing  
causes does not reduce the extent of the defendant’s liability.  
[My emphasis.]  
[431] If I am wrong in that analysis and some action of Yanke was in fact actionable  
in tort, I am satisfied that any apportionment of responsibility for the payment of  
damages suffered by the plaintiffs because of any such conduct is limited to minimal  
contribution and for only some short term financial losses suffered by the plaintiffs.  
[432] I say that because no actions of Yanke were causally connected to the PTSD  
suffered by Mr. Hans in the collision. Those injuries and the consequences of them  
Hans v. Volvo Trucks North America Inc.  
Page 102  
were caused solely by Volvo’s negligence and all damages suffered by Mr. Hans as  
a consequence of PTSD are solely the responsibility of Volvo.  
[433] To the extent that Mr. Hans blames Yanke for his losses, that blame is at  
least in part a manifestation of the effects of PTSD. While Yanke’s treatment of him  
may have exacerbated his anger, Yanke’s treatment of him is not actionable as an  
independent cause of action against Yanke.  
[434] In those circumstances and having regard to the totality of the evidence, if I  
am wrong in my analysis that Yanke is not liable as a joint tortfeasor with Volvo for  
the damages suffered by Mr. and Mrs. Hans, I find that Yanke is responsible for 10%  
of Mr. and Mrs. Hans’ net past loss of income.  
[435] I reach that assessment based upon the delay of the plaintiffsre-entry into  
the trucking industry and the realization of their intention to commence their own  
small flat-bed trucking business to which Yanke’s actions contributed in the year  
following the collision.  
VIII. REMOTENESS  
[436] Volvo has submitted that even if it was at fault for the loose nut on the cab  
positive terminal which caused the collision, the psychiatric injuries from which  
Mr. Hans suffers for which he seeks compensation were not a foreseeable  
consequence of any negligent act by Volvo.  
[437] In his written argument counsel for Volvo submitted “there is no causal link in  
law between Mr. Hans’ PTSD and the alleged negligence of Volvo”.  
[438] In making that submission Volvo relied primarily upon Mustapha v. Culligan of  
Canada Ltd., 2008 SCC 27 [Mustapha], the leading case in Canada on the law of  
remoteness and the foreseeability of damages.  
[439] Volvo’s submissions on remoteness require an analysis of not only the  
principles enunciated by the Supreme Court of Canada in Mustapha and other cases  
 
Hans v. Volvo Trucks North America Inc.  
Page 103  
relied upon by Volvo but also the factual circumstances in which the issues of  
remoteness and the foreseeability arose in those cases.  
[440] In Mustapha, the Court was concerned with the foreseeability of psychiatric  
injuries suffered by the plaintiff as a consequence of the defendants breach of its  
duty of care. In the course of replacing an empty bottle of drinking water with a full  
one the plaintiff saw a dead fly in the unopened replacement bottle. The plaintiff  
became obsessed with the event and developed a major depressive disorder,  
phobia and anxiety.  
[441] Although Mr. Mustapha successfully sued the defendant, the Ontario Court of  
Appeal overturned the trial court judgment on the basis that the injuries were not  
reasonably foreseeable and thus did not give rise to a cause of action.  
[442] Not surprisingly the Supreme Court of Canada upheld the decision of the  
Ontario Court of Appeal.  
[443] In doing so, Chief Justice McLachlin writing for the Court deferred to the  
findings of the trial judge that Mr. Mustapha had indeed suffered a major depressive  
disorder with associated phobia and anxiety with debilitating effects upon his life.  
[444] After reviewing principles applicable to the inquiry of “whether the harm [is]  
too unrelated to the wrongful conduct to hold the defendant fairly liable” and how  
probable or likely a harm needs to be reasonably foreseeable McLachlin C.J.C.  
wrote at para. 14:  
[14] The remoteness inquiry depends not only upon the degree of probability  
required to meet the reasonable foreseeability requirement, but also upon  
whether or not the plaintiff is considered objectively or subjectively. One of  
the questions that arose in this case was whether, in judging whether the  
personal injury was foreseeable, one looks at a person of “ordinary fortitude”  
or at a particular plaintiff with his or her particular vulnerabilities. This  
question may be acute in claims for mental injury, since there is a wide  
variation in how particular people respond to particular stressors. The law  
has consistently held albeit within the duty of care analysis that the  
question is what a person of ordinary fortitude would suffer: see White v.  
Chief Constable of South Yorkshire Police, [1998] 3 W.L.R. 1509 (H.L.); Devji  
v. Burnaby (District) (1999), 180 D.L.R. (4th) 205, 1999 BCCA 599;  
Vanek. As stated in White, at p. 1512: “The law expects reasonable fortitude  
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Page 104  
and robustness of its citizens and will not impose liability for the exceptional  
frailty of certain individuals.”  
[445] Applying those principles to the facts presented in Mustapha the Chief Justice  
held at para. 18:  
[18] It follows that in order to show that the damage suffered is not too  
remote to be viewed as legally caused by Culligan’s negligence,  
Mr. Mustapha must show that it was foreseeable that a person of ordinary  
fortitude would suffer serious injury from seeing the flies in the bottle of water  
he was about to install. This he failed to do. The only evidence was about  
his own reactions, which were described by the medical experts as “highly  
unusual” and “very individual” (C.A. judgment, at para. 52). There is no  
evidence that a person of ordinary fortitude would have suffered injury from  
seeing the flies in the bottle; indeed the expert witnesses were not asked this  
question. Instead of asking whether it was foreseeable that the defendant’s  
conduct would have injured a person of ordinary fortitude, the trial judge  
applied a subjective standard, taking into account Mr. Mustapha’s “previous  
history” and “particular circumstances” (para. 227), including a number of  
“cultural factors” such as his unusual concern over cleanliness, and the  
health and well-being of his family. This was an error. Mr. Mustapha having  
failed to establish that it was reasonably foreseeable that a person of ordinary  
fortitude would have suffered personal injury, it follows that his claim must  
fail.  
[446] Relying on that conclusion Volvo submits that Mr. Hans’ failure to adduce  
evidence that a person of ordinary fortitude would have suffered PTSD in the  
collision is fatal to his claims against Volvo notwithstanding Volvo’s breach of the  
duty of care it owed him in its negligent manufacture of the Truck.  
[447] After considering the principles of remoteness and reasonable foreseeability  
of damages enunciated in Mustapha and other cases relied upon by Volvo in the  
context of the facts of this case I do not accept Volvo’s argument that Mr. Hans’  
psychological injuries are too remote to require compensation by Volvo.  
[448] I say that because:  
1) Mustapha and most other cases relied upon by Volvo (Deros v. McCauley,  
2011 BCSC 195 which applied Mustapha, and Devji v. District of Burnaby,  
1999 BCCA 599, which pre-dated Mustapha) were all cases of nervous  
shock.  
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2) Although, as noted by Voith J. at para. 106 in Zawadzki v. Calimoso, 2011  
BCSC 45, in some cases the principles enunciated in Mustapha have been  
applied in broader contexts than that of nervous shock, he also noted that key  
factors in the Court’s denial of recovery to Mr. Mustapha (at para. 18 quoted  
above) was that his response to the fly in the bottle was “extraordinary” and  
that his own experts described his reaction as “highly unusual” and “very  
individual”.  
3) In my view, the Court’s commentary upon the lack of evidence that a person  
of “ordinary fortitude” would have suffered injury from seeing flies in the bottle  
must be read in that context.  
4) It does not, as Volvo asserts, apply in a case such as this where the plaintiff  
suffered psychological trauma as a direct result of being involved in a  
terrifying collision. That is especially so when Volvo’s negligence could have  
resulted in serious physical harm or even death as reasonably perceived by  
both Mr. and Mrs. Hans when total electrical failure plunged the Truck into  
darkness and caused a total loss of control.  
5) To read into a case of psychological injury in all but extraordinary  
circumstances, such as those in Mustapha, where the reaction to the  
wrongdoing is wholly out of proportion to the risk of harm to the plaintiff, a  
requirement that a plaintiff must also establish that a person of “ordinary  
fortitude” would also have suffered the injury would conflict with the principle,  
recently re-affirmed by the Court in Clements, that a robust and pragmatic  
approach must be taken to determining whether a defendant’s negligence has  
caused the plaintiff’s loss and that scientific proof of causation is not required.  
6) Common sense also must not be abandoned whether the issue is one of  
causation or remoteness. Observing a fly in a water bottle cannot be equated  
with experiencing a total loss of control of a loaded semi-trailer plunged into  
total darkness.  
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Page 106  
7) While the medical experts called by the plaintiffs did not directly opine that a  
person of ordinary fortitude would have suffered the same or similar  
psychological injuries to those suffered by Mr. Hans, the evidence of all of  
those experts does not establish that his psychological reaction to the  
collision was idiosyncratic or unusual. The plaintiffs’ medical experts were  
cross-examined at length by counsel for Volvo with the proposition that the  
circumstances of the collision were objectively insufficiently severe or  
traumatic to meet the criteria necessary as a pre-condition for a diagnosis of  
PTSD. All disagreed.  
8) That same defence theory was also at the heart of Dr. Solomons’ opinions  
which were diametrically opposed to those of the plaintiffs’ medical experts. In  
short, Dr. Solomons opined that because Mr. Hans knew shortly after the  
collision that he had not been seriously injured or killed the necessary criteria  
for a diagnosis of PTSD had not been established. As I will later discuss in  
more detail, I do not accept Dr. Solomons’ opinion, and to the extent that  
Volvo relies upon it on the remoteness issue, I find that it is of no assistance.  
[449] Those cases relied upon by Volvo which did not involve nervous shock  
(Warren v. Morgan, 2013 BCSC 708 [Warren], and Kristiansen v. Grewal, 2014  
BCSC 623 [Kristiansen]) also do not assist.  
[450] In Warren, Russell J. found that the plaintiff was vague about the nature and  
progression of her injuries and attempted to explain away issues with tangential  
answers. She also failed to adduce evidence that she suffered from a psychological  
disorder. Although Russell J. did refer to Mustapha (at para. 516), her decision did  
not rest on any consideration of remoteness or foreseeability.  
[451] In Kristiansen, Romilly J. accepted that the plaintiff had suffered PTSD in an  
accident for which the defendant accepted liability that occurred in December of  
2009, but also considered Mustapha in determining that the accident was not the  
cause of psychological complaints or cognitive deficits which presented for the first  
time in September of 2011.  
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Page 107  
[452] In doing so he held at paras. 115 to 117:  
[115] The plaintiff has to show, on a balance of probabilities, that her  
psychological difficulties were a reasonably foreseeable consequence of the  
defendants’ negligent actions.  
[116] In my view, the plaintiff’s psychological injuries were simply not  
reasonably foreseeable. That is, it was not reasonably foreseeable by the  
defendants, at the time of the tort, that the plaintiff would suffer the mental  
injuries she now attributes to the Accident.  
[117] I agree with the defendants’ submission that damages for the  
plaintiff’s psychological complaints or cognitive deficits which presented for  
the first time on September 5, 2011, are too remote in law to be recoverable  
in any event.  
[453] In contrast, Mr. Hans’ psychological symptoms manifested immediately after  
the collision and a preliminary diagnosis of PTSD was made by Dr. Dhillon within 2  
weeks. Unlike in Kristiansen no new psychiatric disorders arose months after the  
collision.  
[454] Although Volvo asserts that there was a 30 month period where the  
symptoms did not continue, that submission is not supported by the evidence of the  
many lay witnesses who testified and whose evidence I accept.  
[455] I also do not accept Volvo’s submission that Mr. Hans’ suffered a  
“psychological crash” in the fall of 2011 when he first attempted suicide for reasons  
other than his continuing but worsening symptoms of PTSD suffered by him as a  
consequence of the collision and Volvo’s negligence.  
[456] Volvo’s submission that Mr. Hans’ psychological injuries at the time of his first  
suicide attempt were “more likely a combination of factors [that] include the fact  
Mr. Hans had been fired, the plaintiff’s poor decision to abandon their truck (their  
only source of livelihood) and the stress and cost of litigation” is not supported by the  
evidence as a whole or the expert opinions of those medical witnesses whose  
evidence I do accept.  
[457] For all of the foregoing reasons I have concluded that Mr. Hans’ psychological  
injuries were a direct cause of the collision and Volvo’s negligence. I find that his  
Hans v. Volvo Trucks North America Inc.  
Page 108  
psychological injuries were reasonably foreseeable and are not too remote in law to  
preclude compensation for them by Volvo.  
IX.  
DAMAGES  
[458] Central to the issue of the quantum of damages to which the plaintiffs are  
entitled is resolution of the question of whether the plaintiffs have proven that Volvo’s  
negligence caused Mr. Hans to suffer PTSD.  
[459] For the reasons that follow, to which I have also alluded earlier in these  
reasons, I am satisfied that the totality of the evidence, including the medical  
evidence which I accept, confirms that Mr. Hans did suffer PTSD as a consequence  
of the collision and that the damages which he has suffered and which he will  
continue to suffer arise as a consequence of PTSD.  
[460] As I have previously noted, Volvo’s argument that Mr. Hans did not suffer  
PTSD as a consequence of the collision was based in large part upon the  
proposition that Mr. and Mrs. Hans’ evidence generally and specifically concerning  
Mr. Hans’ psychological difficulties since the collision was exaggerated for financial  
gain. I have rejected that argument.  
[461] In arguing that the psychiatric difficulties from which Mr. Hans suffers were  
not caused by the collision Volvo also submitted that the circumstances of the  
collision and the fact that neither Mr. nor Mrs. Hans were seriously physically injured  
in it preclude a diagnosis of PTSD.  
[462] In my discussion of the issues of remoteness raised by Volvo, I rejected  
Dr. Solomons’ opinion that Mr. Hans did not suffer PTSD as a consequence of the  
collision.  
[463] I did so because:  
1) Dr. Solomons’ opinion (as expressed in his first medical-legal report dated  
March 13, 2014) that Mr. Hans did not suffer PTSD was that:  
 
Hans v. Volvo Trucks North America Inc.  
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Based on his presentation at this assessment and reinforced by the  
medical records, it is my opinion that Mr. Hans developed a severe  
agitated depression that has proven to be resistant to treatment. This  
depression appears to have come on some [32] months after the accident  
and seems to have arisen in the context of his anger and resentment  
towards Yanke Transfer Ltd. and Volvo Trucks North America, as well as  
from the financial stresses that followed his unemployment. The litigations  
since the accident probably contribute further to his depression.  
While the accident itself is not a direct cause of this depression, it is  
indirectly a factor in that it set in motion the train of events that lead to his  
profound sense of resentment and unfair treatment that seems to have  
brought on and maintains his depression.  
2) Dr. Solomons re-iterated that opinion in his second medical legal report of  
September 24, 2015 in which he wrote:  
While the Diagnostic and Statistical Manual of Mental Disorders, Fifth  
Edition (DSM-5) does not specifically state that the trauma which leads to  
posttraumatic stress disorder is unusually severely life- or limb-  
threatening, the examples of the trauma it provides, i.e. exposure to wars,  
combatant or civilian, threatened or actual physical assault or physical  
attack, robbery, mugging, childhood physical abuse, threatened or actual  
sexual violence, forced sexual penetration, alcohol/drug facilitated sexual  
penetration, abusive sexual contact, non-contact sexual abuse, sexual  
trafficking, being kidnapped, being taken hostage, terrorist attack, torture,  
incarceration of prisoner of war, natural or human-made disasters and  
severe motor vehicle accidents, indicates that the nature of the trauma  
required to produce the disorder is necessarily unusually severe and  
profoundly threatening,  
My opinion remains that, while the accident was frightening, it was not  
sufficiently severe to meet the diagnostic pre-condition for posttraumatic  
stress disorder, and therefore despite his report of recurrent, persistent  
intrusive recall of the accident with accompanying distress, a typical  
posttraumatic stress disorder symptom, this symptom is better explained  
on the basis of morbid fixations accompanying his severe major  
depressive disorder rather than the discrete and separate psychiatric  
disorder of posttraumatic stress disorder.  
3) All other medical experts with experience in the diagnosis and treatment of  
PTSD who authored reports and testified in this trial concluded that Mr. Hans  
suffers from PTSD caused by the collision. Those experts include Dr. Harrad,  
Mr. Hans’ treating psychiatrist for many years, Dr. Suhail who unsuccessfully  
attempted to treat Mr. Hans using cognitive behavior and cognitive processing  
Hans v. Volvo Trucks North America Inc.  
Page 110  
therapies, and Dr. Passey, a psychiatrist with extensive experience in both  
the diagnosis and treatment of PTSD.  
4) Significantly also, Dr. Baldev Dhillon, Mr. Hans’ family physician reached a  
preliminary diagnosis of PTSD within two weeks of the collision and testified  
that the reason that the diagnosis was only preliminary because the  
necessary 30 day period for a formal diagnosis had not yet passed.  
5) Specifically concerning Dr. Solomonsopinion that Mr. Hans did not suffer  
PTSD, Dr. Passey wrote:  
Dr. Solomon’s quoted the Oxford text as having written “PTSD occurs  
only after exceptionally stressful events, but not every response to such  
events is PTSD,...the necessary cause for PTSD is an exceptionally  
stressful event.” An “exceptionally stressful event” is not defined by  
Dr. Solomon or by the textbook. It should be noted that “exceptionally  
stressful event” is not a qualifier or part of the criteria A for PTSD in  
Reference 4, which is considered to be the definitive textbook in  
diagnosing PTSD and other mental health disorders in North America. As  
such this term should not be used to exclude a diagnosis of PTSD.  
Dr. Solomon is clinically wrong to do so.  
However, if one pursues this issue further then Reference 6 is helpful. In  
Reference 6 on page 148 notes: "...there is no bright line separating  
trauma that produces PTSD from trauma that does not.” On page 149 it  
notes: “PTSD does not develop unless the individual is exposed to events  
that are “intensely stressful,” constituting “watershed events” in the life of  
the patient.” The vast majority of experienced trauma therapists interpret  
the person’s perception of the event as forming part of that definition and  
the actual possible events (although it is not an exhaustive list) are listed  
in references 3 & 4.  
6) Dr. Passey also wrote:  
… there is a clear statement in DSM V that “threated death” or  
“threatened serious injury” is part of the trauma incident criteria. By any  
definition, losing control of a truck and trailer at highway speeds  
constitutes a situation wherein a person’s life is certainly threatened and  
certainly it could result in serious bodily injury depending on the impact  
and outcome of the accident …It was very fortunate that Mr. Hans was  
not killed or seriously physically injured but he was very afraid during the  
MVA (as evidenced by his screaming and by his provided history) that he  
would be killed or injured. DSM V makes it clear that it does not matter  
how the traumatic event actually turned out, what is important is only that  
there is a real and possible threat of death or serious injury as perceived  
by the exposed person.  
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Page 111  
Mr. Hans definitely perceived that he could die or be badly injured in this  
accident as the event was unfolding. It was also obviously a “watershed  
event” in his life that ultimately changed his brain function, his health, his  
will to live (including suicide attempts), and his ability to function normally.  
His life has not been healthy since this MVA. As such, the January 31,  
2009 MVA clearly fulfills criteria A1. Dr. Solomon is simply clinically wrong  
in his opinion and has no clinical research/literature to support his opinion  
that this MVA did not fulfill criteria A1.  
7) Dr. Solomons acknowledged in cross-examination that his theory that  
criteria A of the DSM V is based only on an objective analysis is not one for  
which he has any academic support. It is in essence his theory alone.  
[464] The fact that Dr. Solomons was prepared to advance an unrecognized theory,  
entirely at odds with the evidence of other well-qualified experts, along with my  
concerns with respect to Dr. Solomonslack of impartiality as an expert witness,  
convinces me that I should give no weight to his opinions.  
[465] I find that the plaintiffs have proven that the collision caused Mr. Hans’ PTSD  
from which he has suffered since the collision, from which he still suffers, and will  
likely suffer for the rest of his life.  
[466] In that regard, I accept Dr. Passey’s opinion which is consistent with those of  
the other experts whose evidence I find reliable that:  
110. Mr. Hans’ prognosis is very poor for a full recovery or even significant  
improvement from his PTSD and MDD. At the time of my interview he has  
undergone fairly aggressive pharmacotherapy since his initial hospitalization  
in 2011with little improvement. He continues to have PTSD and MDD  
symptoms and he continues to have suicidal ideation. He remains a chronic  
risk for death by suicide. He has not had any real focused therapy for his  
PTSD to date other than some attempted cognitive behavioural therapy by a  
psychologist (neither he or his wife could remember her name) earlier this  
year. This was unsuccessful because of the severity of his cognitive decline  
due to the PTSD and MDD since the 31 January 2009 MVA.  
111. It is most likely that Mr. Hans will continue to have significant PTSD and  
MDD symptoms for the rest of his life because of the duration of his  
symptoms, their severity, and his lack of response to his treatment to date.  
Even if he did have some level of significant improvement it is most likely that  
he will remain susceptible to further exacerbations of his psychiatric  
symptoms for the rest of his life. This is based on the research evidence (as  
presented above) and my clinical experience (treatment that can last for  
years especially for the PTSD) when symptoms have lasted this long.  
Hans v. Volvo Trucks North America Inc.  
Page 112  
112. Mr. Hans’ current severe level of dysfunction will probably continue to be  
present and vary somewhat according to his overall stress level e.g. finances,  
relationships, physical health, etc., exposure to major triggers (reminders of  
the MVA), outcome of the lawsuit, access to appropriate therapy, and ability  
to cognitively engage in psychotherapy. Even with further treatment it is more  
likely than not that he will have a significant degree of a restricted lifestyle,  
diminished ability to enjoy life, and an inability for any type of competitive  
employability or vocational upgrading for the foreseeable future due to his  
cognitive dysfunction due to the psychiatric diagnoses.  
113. Even if there is some level of improvement with PTSD specific  
treatment, Mr. Hans will still remain at risk to have a full exacerbation of his  
psychiatric diagnoses because of symptoms worsening from stress or  
triggers. Even if he did get significant improvement of symptoms from  
treatment, any attempt to be employed, upgrading of education, or vocational  
training could potentially be disrupted or even fail due to exacerbation of his  
symptoms.  
114. Given his PTSD diagnosis, Mr. Hans will also have an increased risk of  
developing another psychiatric diagnosis (Reference 5) such as other anxiety  
disorders, or substance abuse etc. in the future, which would also have a  
negative impact on his personal and professional life. The severity of his  
PTSD and MDD symptoms will cause him to be at significant risk of suicide in  
the future.  
[467] I find that Mr. Hans’ psychiatric suffering has had profoundly debilitating  
effects on all aspects of his life for the last seven years and severely impacts the  
assessment of the damages and losses for which he is entitled to compensation for  
both past and future.  
[468] My discussion of the appropriate award under each head of damages follows.  
A.  
Non-Pecuniary Damages for Pain and Suffering and Loss of  
Enjoyment of Life  
[469] Non-pecuniary damages are intended to, insofar as any monetary award can,  
compensate an injured person for their pain and suffering and loss of enjoyment of  
life caused by the fault of a tortfeasor.  
[470] In Stapley v. Hejslet, 2006 BCCA 34 [Stapley] at para. 46, Kirkpatrick J.A. set  
out a useful, non-exhaustive list of factors that offer guidance as to what may  
influence an award of non-pecuniary damages. The list includes the:  
(a) age of the plaintiff;  
 
Hans v. Volvo Trucks North America Inc.  
Page 113  
(b) nature of the injury;  
(c) severity and duration of pain;  
(d) disability;  
(e) emotional suffering; and  
(f) loss or impairment of life.  
[471] Kirkpatrick J.A. went on to say:  
I would add the following factors, although they may arguably 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).  
[472] With those considerations in mind I will now assess the compensation to  
which I consider Mr. and Mrs. Hans are entitled for their pain, suffering, and loss of  
enjoyment of life, for the injuries they suffered as a consequence of Volvo’s  
negligence.  
1) Mrs. Hans  
[473] The compensation to which Mrs. Hans is entitled under this head of damages  
is modest. The physical injuries she suffered were fairly minor and there is no  
medical evidence that they have had any seriously debilitating effect on her life. I do,  
however, also note that Mrs. Hans is not one to complain.  
[474] I accept Mrs. Hans’ evidence that she continued to suffer from shoulder and  
neck pain as well as the effects of a minor concussion for 3 or 4 months after the  
collision. She also testified that all of her injuries were fully resolved within about a  
year. I also accept that she was afraid of driving for a short while, but in that regard  
note that notwithstanding her physical complaints and some fear of driving she did  
unsuccessfully attempt to find work with Yanke in early March of 2009.  
 
Hans v. Volvo Trucks North America Inc.  
Page 114  
[475] I am also satisfied that had work been available to Mrs. Hans she would have  
worked through her physical complaints and overcome her transitory fear of driving.  
She would have done so because that is how she approaches all difficulties she  
faces with perseverance, determination and little regard for self.  
[476] In that regard I further note that in the fall of 2009 Mrs. Hans did begin to drive  
commercially for Mr. Hans’ brother and did so not only because of financial need but  
as part of her attempt to “get Mr. Hans out of his funk”.  
[477] Care must, however, be taken not to compensate Mrs. Hans under this head  
of damages for her efforts relating to Mr. Hans’ injuries or her difficulties with Yanke  
and Volvo Financial Services over the repair and disposition of the Truck.  
[478] In the circumstances I am satisfied that an award of $15,000 will appropriately  
compensate Mrs. Hans for her non-pecuniary losses caused by Volvo’s negligence.  
2) Mr. Hans  
[479] Mr. Hans’ injuries were life altering in every respect.  
[480] The evidence of not only Mrs. Hans but also that of Mr. Hans’ daughter and  
his many friends who testified establishes that before the collision Mr. Hans was a  
gregarious, fun-loving, competitive, hard-working, ambitious and financially driven  
young man with boundless energy.  
[481] Although he had gained weight as a truck driver he was still a man with great  
strength and athletic ability resulting in a prodigious capacity for hard labour which  
he immensely enjoyed. His one-time employer Ron Collick described Mr. Hans as “a  
jolly giant”.  
[482] Mr. Hans lived a socially and emotionally rewarding life often centered on  
work but also often involving his family, his friends of many years and his love of  
travel which he shared with Mrs. Hans and their children both in North America and  
in India.  
 
Hans v. Volvo Trucks North America Inc.  
Page 115  
[483] Mr. Hans shared a loving partnership with his wife as her husband, business  
partner, and as a father to their children. He was a full participant with Mrs. Hans in  
all aspects of their children’s lives and in household responsibilities.  
[484] Mr. Hans was a proud man with a taste for good clothing who cared for his  
appearance. Socially he was often the center of attention while dancing or even  
while playing with children.  
[485] Over the seven years since the collision all of that has changed drastically  
because of PTSD accompanied by Mr. Hans’ suffering from a Major Depressive  
Disorder that arose as a consequence of PTSD.  
[486] Mr. Hans is now emotionally and socially a shell of his former self.  
[487] His gregariousness has been replaced by isolation and withdrawal from  
contact with friends and family.  
[488] His love of fun has been replaced by depression, agitation and volatile bursts  
of anger.  
[489] Competitiveness has been replaced by lethargy.  
[490] Ambition has turned to resentment and the blaming of those he believes have  
ruined his life.  
[491] Where he once ran and played sports he now walks aimlessly. Dr. Thinda  
reported that Mr. Hans has a slow gait due to psychomotor retardation or the effects  
of the medication he is prescribed for his psychiatric symptoms.  
[492] Mr. Hans’ capacity for and love of hard work have been replaced by indolence  
and despair.  
[493] He neglects his personal hygiene and cares little for his appearance. He is  
irritable and has significant problems with concentration and memory. He suffers  
from nightmares, sleeplessness and bad eating habits.  
Hans v. Volvo Trucks North America Inc.  
Page 116  
[494] He has little interest in his children and must be coaxed to attend their  
activities. When he does, he is often uncomfortable, disinterested or both.  
[495] Mr. Hans is no longer active in the partnership that he and Mrs. Hans forged  
during the years of their marriage before the collision. He does not share in  
responsibility or workload but rather requires supervision and care.  
[496] He has attempted suicide three times each of which has seen him  
hospitalized for extended periods.  
[497] His life is now ruled by pharmaceutical intervention to attempt to overcome  
the symptoms of PTSD and Major Depression which dominate his existence.  
Without that medication his existence is further threatened.  
[498] Mr. Hans faces a future of continued pharmaceutical and psychiatric  
intervention as well as close supervision as his treating medical professionals, family  
and friends attempt to preclude the active manifestation of his suicidal ideation.  
[499] While it is a positive sign that Mr. Hans has not attempted suicide for more  
than 5 years since his last attempt, that must be measured against the medical  
intervention and supervision that has been necessary to attain that modest success.  
[500] Mr. Hans’ self-loathing and despair were starkly evidenced by his testimony at  
trial as well as by his anger and resentment at those whom he holds responsible for  
the loss of his capacity to care and provide for his family and enjoy life as he once  
did.  
[501] The totality of the medical evidence establishes that there is little prospect  
that Mr. Hans will ever recover socially, emotionally or mentally from the effects of  
the collision.  
[502] The prognosis for real progress after almost seven years of the debilitating  
effects of PTSD and Major Depressive Disorder from which Mr. Hans suffers is  
guarded at best and bleak at worst.  
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Page 117  
[503] On his behalf, Mr. Hans’ counsel has submitted that he should be  
compensated for his non-pecuniary losses based upon a finding that his injuries are  
“catastrophic or near catastrophic in nature”  
[504] Based upon that analysis and authorities that I will later discuss Mr. Mackoff  
submitted that an appropriate award for Mr. Hans’ pain and suffering and loss of  
enjoyment of life would be in the range of $300,000.  
[505] On the other hand, counsel for Volvo submitted that: the video surveillance  
evidence “which shows Mr. Hans functioning in a normal manner”; Mr. Hans’ ability  
to provide medical professionals with “an extremely detailed account” of his personal  
history; and, his testimony in court which “although distraught and angry at times  
was remarkably clear headed” do not support the propositions advanced on behalf  
of Mr. Hans.  
[506] Volvo did, however, also submit that “if the Court is satisfied that Mr. Hans’  
injuries resulted from the Accident the appropriate award [for non-pecuniary  
damages] is in the range of $130,000 (the high end for damages in regard to  
PTSD)”.  
[507] In making that submission counsel for Volvo referred me to the decisions of  
this court in Morena v. Dhillon, 2014 BCSC 141 [Morena], and Kim v. Khaw, 2014  
BCSC 2221 [Kim].  
[508] In Morena, a 47-year-old married woman with two children was injured in a  
motor vehicle collision when she was 43 years old. She suffered from pain which  
was severe at times and required medication, depression which was severe and  
seemed to be “entrenched” as well as PTSD, sleep disruption and potentially also  
from heart palpitations. She sought non-pecuniary damages from $130,000 to  
$150,000 and was awarded $130,000 by Arnold-Bailey J.  
[509] In Kim, a 54-year-old man suffered physical and psychological injuries in a  
motor vehicle collision when he was 49 years old. His physical injuries were not  
severe. His psychological injuries included PTSD that disabled him from work for  
Hans v. Volvo Trucks North America Inc.  
Page 118  
one year and had “a profoundly negative impact on his family life”. He also continued  
to suffer emotionally. Sharma J. awarded Mr. Kim non-pecuniary damages of  
$130,000 together with $50,000 for his past income loss. She made no award for  
future loss of income earning capacity.  
[510] I do not accept Volvo’s submission that Mr. Hans’ injuries and their disastrous  
effect on his life are similar to those suffered by Mr. Kim which, although serious,  
were not as totally debilitating and long-lasting as the psychological injuries endured  
by Mr. Hans. Also, while the effect of the injuries on Mr. Kim’s emotional state had a  
negative impact on his family life, his suffering did not trigger suicide attempts and  
extensive periods of hospitalization and did not prevent him from becoming  
employable.  
[511] Also, while Mrs. Morena’s psychological suffering was more debilitating than  
that of Mr. Kim she was not rendered as completely disabled either emotionally or  
psychologically as Mr. Hans has been by the PTSD from which he suffers and will  
likely suffer for the rest of his life.  
[512] I also do not agree with Volvo’s characterization of the awards in Morena and  
Kim as representing the “high end of damages for PTSD.  
[513] In Felix v. Hearne, 2011 BCSC 1236 [Felix], Grist J. awarded a 44-year-old  
mother of two non-pecuniary damages of $200,000. She suffered a concussion and  
other physical injuries in a roll-over collision which caused severe headaches and  
loss of balance. She was diagnosed as suffering from PTSD and was no longer able  
to lead an active sporting life as a soccer player. Ms. Felix became reliant on her  
daughters to assist in keeping her home and was treated with anti-depressant  
medication as well as medication for sleeplessness. She had become reclusive and  
short-tempered and had withdrawn from contact with family and friends. Grist J.  
found that after six years there was only a modest hope for improvement in her  
condition.  
Hans v. Volvo Trucks North America Inc.  
Page 119  
[514] While the award in Felix involved consideration of significant physical pain  
and suffering in combination with PTSD the decision is of assistance in this case to  
the extent that the plaintiff was seriously disabled by her injuries from returning to  
the active vocational, social, family and emotional life she had enjoyed before the  
collision.  
[515] In this case, Mr. Hans was only 33 years old when he began to suffer the  
debilitating all-consuming psychological injuries caused by the collission that have  
now endured for almost seven years and which at their worst have manifested in  
three failed suicide attempts. There is little chance that Mr. Hans will ever recover  
socially, emotionally or mentally from the effects of the collision.  
[516] I agree with Mr. Mackoff’s characterization of Mr. Hans’ injuries as being near  
catastrophic when viewed from the perspective of what his life was before the  
collision, has been since then, and will be in the future.  
[517] The characterization of the nature of Mr. Hans’ psychological injuries as  
similar to that of someone who suffers a serious brain injury is also supported by the  
evidence of Dr. Passey who described PTSD as a brain disorder based on medical  
research that has identified areas of the brain implicated in the disorder.  
[518] In that regard, Dr. Passey wrote at paras. 89 to 91 of his report dated  
August 17, 2015:  
89. … The diagnosis of PTSD is not a nebulous hypothetical idea of brain  
dysfunction. There is now ample research evidence (such as references 6-  
11) that establishes changes in the brain associated with exposure to  
traumatic stressors that result in the observed symptoms with PTSD.  
90. Although there is not a simple biochemical test or imaging test that can  
confirm a diagnosis of PTSD, there are changes that correspond to observed  
or reported symptoms and as such separates PTSD from any other anxiety  
disorder or psychiatric diagnosis. For instance, research (such as references  
6 & 10) often reports a decrease in hippocampal volume, which is where  
some types of memory, are stored. This corresponds with difficulty in  
establishing new short-term memory. There is a decrease in compounds  
such as cortisol (helps turn off the stress response) and brain derived  
neurotrophic factor (helps form new brain pathways and is involved with  
learning) while noradrenalin level (helps to implement fight or flight reflex,  
Hans v. Volvo Trucks North America Inc.  
Page 120  
stress reaction, and involved in establishing vivid traumatic memories) is  
increased (reference 10).  
91. Imaging studies of the brain (references 6, 7, 8, 9, & 10) show that  
Broca’s area (the brain speech centre) and the left prefrontal cortex  
(executive brain function, turns off fight or flight reflex, makes characteristic  
decisions, focus attention, etc.) have diminished metabolism when a person  
with PTSD is triggered. This corresponds to clinical observations that, when  
triggered, PTSD patients may have difficulty talking about what is happening  
and/or may have difficulty making characteristic and well informed decisions  
or being able to concentrate. Simultaneously the amygdala has increased  
metabolism indicating a heightened fight or flight reflex and thus increased  
irritability etc.  
[519] In my opinion to differentiate an all-consuming debilitating psychological injury  
such as that suffered by Mr. Hans from the psychologically devastating injuries  
suffered by those diagnosed with a traumatic brain injury would be artificial.  
[520] As observed by Walker J. in Sangra (Guardian ad litem of) v. Lima, 2015  
BCSC 2350 at para. 94, and also applicable to the injuries suffered by Mr. Hans:  
I agree with the defence submission that Mr. Sangra's injuries are not  
"catastrophic" but only in the limited sense that he is not a quadriplegic or  
paraplegic, in a vegetative state, or requires around the clock care.  
Otherwise, his injuries are, on the whole, close to catastrophic.  
[521] In concluding that Mr. Sangra, the 85-year-old plaintiff was entitled to an  
award of $315,000 for non-pecuniary damages Walker J. also made the following  
findings which, to some extent, resemble the effects of Mr. Hans’ injuries on his  
inability to enjoy life as he once did. At para. 93 Walker J. wrote:  
The defence submission that Mr. Sangra is able to interact socially with his  
family and friends is, with respect, overly-simplistic and ignores the evidence  
that his interaction is significantly limited both in quality and duration, and that  
it bears no resemblance to his pre-collision activities and function. In terms of  
his social interaction, Mr. Sangra is withdrawn in groups of more than one,  
and in one-on-one conversations, his participation is limited, the discussions  
are quite basic, and he is unable to last more than 20 minutes before he  
becomes frustrated and often suffers a headache. …  
[522] Counsel for Mr. Hans also referred me to the decisions of this court in  
O’Connell (Litigation Guardian of) v. Yung, 2010 BCSC 1764 [O’Connell] and Reilly  
Hans v. Volvo Trucks North America Inc.  
Page 121  
v. Lynn, 2000 BCSC 360 [Reilly] for consideration in assessing the award for  
Mr. Hans’ non-pecuniary damages.  
[523] In O’Connell, Fisher J. awarded the 58-year-old plaintiff $275,000 (which  
adjusted for inflation in 2016 would be approximately $300,000) who had suffered  
multiple fractures and a severe brain injury. She was hospitalized for five months but  
had made a good recovery from her physical injuries with some limitations and the  
possibility of further degenerative changes. Her brain injury left her cognitively  
impaired and her personality had changed profoundly. She required considerable  
personal attention from her husband that went beyond the supervision and guidance  
expected in a normal marital relationship. She did not fully appreciate the nature of  
her condition and could not live independently. On appeal (2012 BCCA 57),  
Fisher J.’s award for non-pecuniary damages was upheld but, as I will alter discuss,  
award made for the costs of Ms. O’Connell’s supervisory future care was reduced.  
[524] In Reilly, Coultas J. awarded the plaintiff, a 29-year-old newly-called lawyer  
who had suffered a mild traumatic brain injury, $150,000 (adjusted for inflation to  
$210,000 in 2016). Mr. Reilly had been able to return to work for a short time but  
lacked analytical ability. He eventually ended up sorting mail but was generally self-  
sufficient in daily living and was able to continue learning. On appeal (2003 BCCA  
49) that award for non-pecuniary damages was allowed but the award for future loss  
of income earning capacity was reduced.  
[525] Although other cases are of some assistance in assessing an award of non-  
pecuniary damage it is an off-cited principle that no two cases are the same. Each  
person who endures a debilitating injury is unique and the nature of the injuries  
suffered by plaintiffs and their life circumstances will rarely be identical. See:  
Schubert v. Knorr, 2008 BCSC 939 as quoted in Morena at para. 127.  
[526] In this case, Mr. Hans has not suffered serious physical injury and to that  
extent the effect of his injuries on his physical enjoyment of life is less than that of  
the plaintiffs in Morena, Felix, Sangra and O’Connell. On the other hand, however,  
the effect of his psychological injuries on his enjoyment of life has been profound. In  
Hans v. Volvo Trucks North America Inc.  
Page 122  
my view, it is greater than that suffered by Mr. Reilly and Ms. Felix and somewhat  
less than that suffered by Mr. Sangra and Ms. O’Connell.  
[527] Given the relative ages of Mr. Sangra and Ms. O’Connell (85 and 58 years of  
age respectively) and similarly pessimistic prognoses for improvement, the fact that  
the loss suffered by Mr. Hans occurred when he was only 33 must be given  
substantial weight in assessing the appropriate award for his non-pecuniary  
damages.  
[528] Considering that factor together with all of the other factors enumerated in  
Stapley to which I have alluded I have concluded that the appropriate award for  
Mr. Hans’ past and future pain and suffering and loss of enjoyment of life is  
$265,000.  
B.  
The “In-Trust” Claim  
[529] Spouses or other family members who provide care or other services to an  
injured plaintiff are entitled to compensation for those services rendered over and  
above those what would be expected from the family relationship.  
[530] In Dykeman v. Porohowski, 2010 BCCA 36, Newbury J.A. wrote at para. 28:  
[28]  
Since Kroeker, it has been settled law in this province that  
“housekeeping and other spousal services have economic value for which a  
claim by an injured party will lie even where those services are replaced  
gratuitously from within the family.” In Kroeker, such recovery was allowed  
under the heading of ‘loss of future ability to perform household tasks’, but  
obviously, damages for loss of such ability prior to trial may also be properly  
claimed and recovered: see, e.g., McTavish v. MacGillivray, 2000 BCCA 164  
at paras, 43, 51-7, per Huddart J.A.; West v. Cotton (1995) 10 B.C.L.R. (3d)  
73 (C.A.) at para. 25; and Campbell v. Banman 2009 BCCA 484. The  
reasoning in Kroeker has been extended beyond “spousal” services to  
services rendered by other members of a family: see Boren v. Vancouver  
Resource Society, Dufault, McTavish v. MacGillivray; Bystedt v. Hay, all  
supra. Such awards are colloquially referred to as “in trust” even though it is  
the plaintiff who recovers them, and British Columbia courts do not generally  
impose trust terms in their orders, regarding the loss as that of the plaintiff:  
see Feng v. Graham (1988) 25 B.C.L.R. (2d) 116 (C.A.) at 9-10; McTavish,  
supra.  
[Emphasis added in Dykeman.]  
 
Hans v. Volvo Trucks North America Inc.  
Page 123  
[531] In Bystedt (Guardian ad Litem of) v. Hay, 2001 BCSC 1735 (at para. 180)  
D. Smith J, as she then was, reviewed existing authorities governing the factors to  
be considered in the making of “in-trust” awards. She then offered the following  
summary of those factors:  
(a) the services provided must replace services necessary for the care of the  
plaintiff as a result of a plaintiff's injuries;  
(b) if the services are rendered by a family member, they must be over and  
above what would be expected from the family relationship (here, the normal  
care of an uninjured child);  
(c) the maximum value of such services is the cost of obtaining the services  
outside the family;  
(d) where the opportunity cost to the care-giving family member is lower than  
the cost of obtaining the services independently, the court will award the  
lower amount;  
(e) quantification should reflect the true and reasonable value of the services  
performed taking into account the time, quality and nature of those services.  
In this regard, the damages should reflect the wage of a substitute caregiver.  
There should not be a discounting or undervaluation of such services  
because of the nature of the relationship; and,  
(f) the family members providing the services need not forego other income  
and there need not be payment for the services rendered.  
[532] The evidence establishes that Mrs. Hans has since the collision and far more  
so after Mr. Hans’ first suicide attempt in October of 2011, undertaken virtually all of  
the household work and parental responsibilities that Mr. Hans used to share with  
her.  
[533] After Mr. Hans’ release from hospital after his first suicide attempt, in addition  
to those household and parental tasks Mrs. Hans undertook the monitoring of  
Mr. Hans’ taking of medications, more intense supervision of his personal hygiene  
as well as supervision of all other aspects of his daily existence in an attempt to  
prevent further suicidal behaviour and otherwise see to his well-being.  
[534] The medical evidence I will consider in more detail when discussing Mr. Hans’  
future care needs includes the opinions of Drs. Dhillon, Thinda, Harrad and Passey  
that Mr. Hans needs “constant care”.  
Hans v. Volvo Trucks North America Inc.  
Page 124  
[535] Since his first suicide attempt Mr. Hanssupervision has been undertaken by  
Mrs. Hans with such considerable assistance from Parmjit Hans that it could in  
substance also have been the subject of separate in-trust claim.  
[536] When the family’s financial situation mandated that Mrs. Hans had to work so  
that they could eat she took jobs that allowed her to maximize her time at home with  
Mr. Hans or to be in constant telephone communication with him. She also arranged  
with Ms. Bilan, her downstairs neighbour, to assist with ensuring that Mr. Hans was  
not left totally alone for protracted periods of time if Mrs. Hans, their children, Parmjit  
Hans or other friends were not able to be with him.  
[537] I accept Mrs. Hans’ evidence that she is able to sleep only about 4 and one  
half to five hours per night so that she can do all that she now does to ensure that  
tasks that otherwise would be shared with Mr. Hans are done, provide the care and  
supervision Mr. Hans needs and work to the extent she is able.  
[538] There is no question that the care and service Mrs. Hans has provided to  
Mr. Hans since the collision were made necessary by the injuries suffered by him in  
the collision and that both have been far beyond what would be expected from the  
marital relationship.  
[539] Quantification of the appropriate compensation for Mrs. Hans’ care of  
Mr. Hans and services rendered by her must attempt to measure the reasonable  
value of those services based on the time involved in performing them as well as the  
costs that would have been incurred had a third party caregiver or worker been paid  
to provide them.  
[540] In a case like this, where there is also a claim for past wage loss for both  
plaintiffs, care must, however, also be taken not to make an in-trust award that  
would provide double compensation for Mrs. Hans’ efforts.  
[541] Counsel for the plaintiffs submitted that an appropriate in-trust award would  
be $285,000.  
Hans v. Volvo Trucks North America Inc.  
Page 125  
[542] Counsel for Volvo made no submission as to quantum other than to suggest  
that if I concluded that any award should be made it should be modest and also  
reflect those times when Mr. Hans was hospitalized or in India for extended visits  
when care was not provided by Mrs. Hans.  
[543] In determining the appropriate in-trust award in this case I have erred on the  
side of caution bearing in mind that, generally speaking, in-trust awards should be  
modest but must also reflect the totality of the circumstances in which they arise.  
[544] I have also considered the fact that plaintiffs were unable to provide detailed  
evidence about the precise number of hours Mrs. Hans has devoted to those  
household and child caring tasks which would otherwise have been undertaken by  
Mr. Hans but for the collision.  
[545] That is the case also concerning the hours spent in Mrs. Hanscare and  
virtually constant supervision of Mr. Hans made necessary by his psychological  
injuries and recommended by his treating physicians.  
[546] It is, however, not surprising that over a period of almost seven years since  
the collision and the extent to which Mr. Hans’ injuries have dominated and  
dramatically changed not only his life but also those of Mrs. Hans and their children  
that time records detailing Mrs. Hans’ efforts in taking over both parental roles and  
also becoming a caregiver to a disabled adult have not been kept. It would have  
been an impossible task to do so and wholly out of keeping with the selflessness  
with which Mrs. Hans has approached the situation forced upon her.  
[547] In those circumstances the best the Court can do is assess the quantum of  
the appropriate in-trust claims that are grounded in the evidence by being as fair as  
possible not only to the plaintiffs but also to Volvo which caused the harm which  
required the providing of the services rendered.  
[548] With those concerns in mind I have concluded that Mrs. Hans should be  
compensated for the care of and services she provided to Mr. Hans beyond that  
what normally would be expected of a spouse assessed as:  
Hans v. Volvo Trucks North America Inc.  
Page 126  
1) 30 hours per month (approximately 1 hour per day) from January 31, 2009 to  
September 30, 2011 (32 months x 30 = 960 hours); and  
2) 120 hours per month (approximately 4 hours per day) from October 2011 to  
the date of this judgment (57 months x 120 = 6,840 hours).  
[549] From that total amount of 7,800 hours must be deducted approximately 10  
months (1,200 hours) for the time Mr. Hans was hospitalized (approximately 3.3  
months) and while he was in India in 2013 and 2014 (roughly 6 to 7 months).  
[550] In total, therefore, she should be compensated based on a total of 6,600  
hours.  
[551] In reaching that total I have not included any compensation for gratuitous  
services provided by Parmjit Hans and Ms. Bilan.  
[552] I have also concluded that Mrs. Hans should be compensated for the hours I  
have assessed based on a rate of $25 per hour.  
[553] I have determined that compensation at a rate of $25 per hour is appropriate  
because:  
1) The evidence establishes that when working as a dispatcher since the  
collision when able to do so, because of Parmjit Hansassistance and the  
accommodations of her employer, Mrs. Hans has been paid approximately  
$25 per hour; and  
2) The evidence of the plaintiffs’ cost of future care expert, Ms. Sholeh Salehi,  
which I will later discuss in more detail, establishes that the hourly rate for the  
hiring of a caregiver is in the range of $25 to $28 per hour.  
[554] Applying a rate of $25 per hour to the time I have assessed as being the  
basis for a reasonable award I find that the appropriate in-trust award in this case for  
Mrs. Hans’ compensable efforts on behalf of Mr. Hans is $165,000.  
Hans v. Volvo Trucks North America Inc.  
Page 127  
[555] While that amount is relatively high for an in-trust claim, it is similar in amount  
to the $150,000 award made by Fisher J. in O’Connell (upheld by the Court of  
Appeal) for the plaintiff husband’s dedicated care of his injured spouse in  
circumstances very much like those in this case. There, like in this case, it was  
dangerous for the plaintiff to be left alone for extended periods of time. That in-trust  
award was also for a period of three years rather than the approximately 4.5 years of  
the extraordinary efforts of Mrs. Hans since Mr. Hans’ first suicide attempt.  
C.  
Cost of Care (Past)  
[556] As I have previously noted, during the trial of this action and the related action  
of the Province against Volvo under the HCCRA, by an agreement made between  
Volvo and the Province, the cost of Mr. Hans’ past care was resolved in the amount  
of $198,868.75 with attribution of any responsibility of Volvo for that amount being  
left to the determination of the liability issues in this action.  
[557] By reason of my conclusions on liability, I accordingly find that Volvo is  
responsible to pay the Province $198,868.75 in compensation for Mr. Hans’ care  
costs incurred prior to the date of trial.  
[558] Before addressing Mr. Hans’ cost of future care claims I must first address the  
submission advanced by Volvo that the settlement of Mr. Hans’ past care claims with  
the Province bars Mr. Hans from recovering the costs of his future care.  
[559] Counsel for Volvo provided no authority for that proposition and I am satisfied  
that it is misconceived.  
[560] The Province chose to settle a HCCRA subrogated claim that was, at least in  
part, disputed by Volvo by reason of alleged limitation period issues that, if  
successful, could have prevented any recovery by the Province.  
[561] It is also noteworthy that the past cost of care settlement included  
approximately $153,500 in hospitalization costs for which Mr. Hans makes no such  
future claim and also included no past claim for the cost of supervisory care.  
 
Hans v. Volvo Trucks North America Inc.  
Page 128  
[562] In settling the past HCCRA claims the Province has precluded itself from also  
seeking recovery from Volvo for any of the future care costs that will be incurred by  
Mr. Hans for which the Province would otherwise have had a subrogated claim.  
[563] That settlement does not compromise Mr. Hans’ future care claims.  
D.  
Cost of Care (Future)  
[564] The cost of future care claim advanced by the plaintiffs is in some respects  
based on Mr. Hans’ costs of health care incurred before the trial (primarily  
pharmacological costs and psychiatric costs) which are anticipated to continue  
largely unabated by improvement in Mr. Hans’ psychological injuries.  
[565] There are, however, additional future care claims that must be also  
addressed, including, but not limited to claims that are in many respects reflective of  
the care and supervision of Mr. Hans performed by Mrs. Hans prior to trial.  
[566] In O’Connell our Court of Appeal stated at paras. 55 and 56:  
[55]  
The law is settled as to the appropriate approach to be taken in  
assessing future care costs. In Krangle (Guardian ad litem of) v. Brisco, 2002  
SCC 9 at paras. 2122, [2002] 1 S.C.R. 205, referred to by the trial judge, the  
Court articulated the test:  
21  
Damages for cost of future care are a matter of prediction. No  
one knows the future. Yet the rule that damages must be assessed  
once and for all at the time of trial (subject to modification on appeal)  
requires courts to peer into the future and fix the damages for future  
care as best they can. In doing so, courts rely on the evidence as to  
what care is likely to be in the injured person’s best interest. Then  
they calculate the present cost of providing that care and may make  
an adjustment for the contingency that the future may differ from what  
the evidence at trial indicates.  
22  
The resulting award may be said to reflect the reasonable or  
normal expectations of what the injured person will require. Jane  
Stapleton, “The Normal Expectancies Measure in Tort Damages”  
(1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58, that the tort  
measure of compensatory damages may be described as the “‘normal  
expectancies’ measure”, a term which “more clearly describes the aim  
of awards of compensatory damages in tort: namely, to re-position the  
plaintiff to the destination he would normally have reached ... had it  
not been for the tort”. The measure is objective, based on the  
evidence. This method produces a result fair to both the claimant and  
the defendant. The claimant receives damages for future losses, as  
 
Hans v. Volvo Trucks North America Inc.  
Page 129  
best they can be ascertained. The defendant is required to  
compensate for those losses. To award less than what may  
reasonably be expected to be required is to give the plaintiff too little  
and unfairly advantage the defendant. To award more is to give the  
plaintiff a windfall and require the defendant to pay more than is fair.  
[Emphasis added in O’Connell.]  
[56]  
Further, as Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27, makes  
clear, “[a] future or hypothetical possibility will be taken into consideration as  
long as it is a real and substantial possibility and not mere speculation”.  
[567] In Zawadzki, Voith J. further summarized the approach to be taken in  
assessing cost of future care claims as follows at paras. 209 to 210:  
[209] A future care claim should be assessed by asking what expenses  
would be incurred by a reasonable person to obtain medically recommended  
treatment. In Bystedt v. Hay, 2001 BCSC 1735, Madam Justice D. Smith  
observed:  
[163] Thus, the claim must be supported by evidence that establishes  
the proposed care is what a reasonable person of ample means  
would provide in order to meet what the plaintiff “reasonably needs to  
expend for the purpose of making good the loss”... It must also be  
based on an objective test of what is moderate and fair to both  
parties...  
[210] Full compensation as explained in Andrews v. Grand & Toy Alberta  
Ltd., [1978] 2 S.C.R. 229 at 240-242 and Milina v. Bartsch (1985), 49  
B.C.L.R. (2d) 33 at paras. 180 and 199 (S.C.) requires that there should be  
medical justification for a cost of future care expense and that the expense  
must be reasonable.  
[568] The plaintiffs have submitted that the assessment of Mr. Hans’ cost of future  
care should be based upon the recommendations of Ms. Sholeh Salehi, who was  
qualified as an expert in Occupational Therapy. Those recommendations are found  
in her supplemental report dated August 21, 2015.  
[569] The plaintiffs also rely on the expert evidence of an economist, Mr. Robert  
Carson, who has extrapolated the costs of the various aspects of the recommended  
care for those periods of time over which Ms. Salehi has opined that the provision of  
such care is necessary.  
Hans v. Volvo Trucks North America Inc.  
Page 130  
[570] I will assess each of Ms. Salehi’s recommendations having regard to the  
medical evidence and bearing in mind those assessment principles addressed in  
O’Connell and Zawadzki to which I have referred.  
1) Medications  
[571] Ms. Salehi recommended continuation of Mr. Hans’ present medications, as  
prescribed by Dr. Harrad and detailed earlier in these reasons, at a total cost of  
$2,733.12 per year.  
[572] The medical evidence supports that recommendation and establishes that  
such extensive pharmacological intervention has in the past been necessary to  
attempt to ameliorate to the extent possible the effects of Mr. Hans’ psychological  
injuries caused by the collision.  
[573] Dr. Harrad testified that similar costs will continue and also testified that he is  
considering referring Mr. Hans to a specialist for further pharmaceutical assistance  
in an attempt to improve Mr. Hans’ functioning. He did not, however, provide  
specifics of the costs that might be involved.  
[574] I find that there is no foreseeable likelihood that the present medicinal regime  
or one akin to it will not be necessary for the balance of Mr. Hans’ life. The net  
present value of that yearly cost of $2,733.12 as calculated by Mr. Carson is  
$75,632.  
[575] I will reduce that award to $75,000 to account for the slight variation in  
Mr. Carson’s calculations arising from the date for which he performed them  
(November of 2015) and the date of trial.  
2) Rehabilitation Therapies  
[576] Ms. Salehi recommended that Mr. Hans’ future care include psychological  
services, occupational therapy intervention and consultation, a structured exercise  
program with a kinesiologist and the use of a rehabilitation assistant.  
   
Hans v. Volvo Trucks North America Inc.  
Page 131  
[577] Other than the necessity for Mr. Hans to continue to receive extensive  
psychological services, I am not satisfied that the evidence establishes that  
Ms. Salehi’s recommended rehabilitation therapies are medically necessary or that  
in the circumstances the costs associated with them are reasonable.  
[578] The evidence establishes that Mr. Hans is a reluctant participant in activities  
outside of the home without coaxing.  
[579] While I recognize that Dr. Thinda has suggested that Mr. Hans should  
improve his overall physical condition, the observation that he should do so was  
made in 2012 and has not been acted upon by Mr. Hans other than with respect to  
long walks (as recommended by Dr. Harrad) which he now takes, usually with the  
coaxing of Parmjit Hans.  
[580] Although Mr. Hansfailure to accept a more structured exercise program or  
become involved in the type of occupational therapy suggested by Ms. Salehi may in  
part have been due to financial constraints, I am not satisfied that the kinds of  
structured programs now suggested by her are reasonably necessary or would be  
acted upon.  
[581] In my opinion, Mr. Hans will continue to be best assisted by a care worker  
who, as I will later discuss, can help him perform many functions that are necessary  
for his future well-being without those functions being compartmentalized into  
special services to limited advantage.  
[582] The medical evidence does, however, overwhelmingly support the need for  
Mr. Hans to continue to receive a high level of psychological intervention to attempt  
to ameliorate or control the effects of his all-pervasive psychological injuries.  
[583] Except for the two trips to India taken in 2013 and 2014, with Dr. Harrad’s  
approval, Mr. Hans has attended upon Dr. Harrad weekly for individual psychiatric  
counselling since his last suicide attempt in August 2012. Although that counselling  
together with the significant medication regime upon which Dr. Harrad has placed  
Mr. Hans has played a part in preventing any further known suicide attempts,  
Hans v. Volvo Trucks North America Inc.  
Page 132  
Dr. Harrad testified that Mr. Hans’ suicidal ideation remains much as it was. It also  
remains Dr. Harrad’s opinion that Mr. Hans will have to deal with his psychiatric  
illness for the rest of his life.  
[584] Dr. Passey offered the opinion in 2015 that Mr. Hans would benefit from  
further psychological counselling for at least one more year and that more would  
likely be needed. Given Dr. Harrad’s involvement to date with such limited success I  
am of the view that Dr. Passey’s assessment of the need for a further 48 sessions,  
with likely more being required the next year, is very conservative. It is also based  
upon the potential success of other psychological therapies that have not yet been  
successfully implemented.  
[585] Ms. Salehi has recommended that Mr. Hans continue to receive psychiatric  
counselling based upon 48 sessions in year 1, followed by 24 in year 2, and 12  
sessions in the third year. I generally agree with that recommendation but find that it  
also may be medically insufficient because of my concern about alternative  
therapies being of assistance in the future when they have failed in the past.  
[586] To the number of sessions suggested by Ms. Salehi I will accordingly add  
another 36 sessions in total from year 4 onward for use as necessary which, in my  
view, accords more appropriately with Dr. Harrad’s past intervention which I believe  
is still the best indicator of Mr. Hans’ future needs.  
[587] I will accordingly make allowance for 120 sessions. In arriving at that total I  
have specifically made allowance for some future trips to India to the extent that they  
would otherwise reduce the number of sessions that might be required.  
[588] Based upon the established rate of $190 per hour, the net present value of  
that award is approximately $22,800 which I will round down to $22,000 because the  
last 36 sessions may be used over many years rather than in any specific year.  
[589] I do not find sufficient evidentiary support to allow compensation for other  
possible psychiatric interventions that may be able to assist Mr. Hans but which  
have to date proven to be unsuccessful.  
Hans v. Volvo Trucks North America Inc.  
Page 133  
3) Constant (24 hour) Supervision  
[590] In his report dated April 24, 2013 (as quoted above at para. 179), Dr. Harrad  
wrote:  
Due to the nature and severity of Mr. Hans’ psychiatric illness, he is not  
stable to be employed at any job. He is not a suitable candidate at this time to  
be considered participating in vocational rehabilitation program. His progress  
is very, very slow. He needs 24 hour supervision by family members to  
protect him from suicide attempts. It will take a few years to stabilize and  
bring Mr. Hans' psychiatric disorder in remission. Even if Mr. Hans is  
stabilized, it will be risky and impossible for him to be employed as a truck  
driver. His prognosis is poor. Mr. Hans will remain at high risk of attempting  
suicide mainly due to his psychiatric illness and ongoing litigation against  
Volvo and Yanke Group of Companies. Mr. Hans will have to live with this  
lifelong psychiatric illness and to be maintained on medication for the rest of  
his life.  
[My emphasis.]  
[591] At trial, Dr. Harrad testified that after more than three years of almost weekly  
psychiatric intervention Mr. Hans had made little progress. His psychiatric illnesses  
are not in remission. Mr. Hans remains at a high risk for attempting suicide and  
constant supervision remains necessary.  
[592] Dr. Passey testified that unless psychiatric intervention can effectively treat  
Mr. Hanspsychological injuries to the extent that he can participate in and receive  
the benefit of what he called “talking therapies”, his prognosis for improvement is  
very poor. In discussing the types of interventions that could be of potential  
assistance Dr. Passey suggested that specialized pharmacological intervention  
might assist Mr. Hans to achieve a level of cognition which could allow him to benefit  
from therapies such as cognitive behavioural therapy. He also testified that as a last  
resort ECT or electro-shock therapy could be employed to attempt to improve  
Mr. Hans’ cognition so that he might be able to engage in “talking therapy”.  
[593] Dr. Passey also testified, however, that unless such interventions were  
successful the only real means of protecting Mr. Hans from committing suicide  
because of his psychological injuries would be supervision on an almost 24 hour  
basis. He also testified that ideally such supervision would engage a care  
 
Hans v. Volvo Trucks North America Inc.  
Page 134  
component that would require a Punjabi speaking caregiver under the direction of a  
psychologist with experience in treating PTSD to enable Mr. Hans to gain the most  
possible benefit.  
[594] Under cross-examination by counsel for Volvo Dr. Passey agreed that the fact  
that Mr. Hans had not attempted suicide since September of 2012 was a positive  
sign, but also testified that it was not the best predictor of the likelihood of Mr. Hans  
not again attempting suicide due to his continuing suicidal ideation and its potential  
activation by stressors.  
[595] In her cost of future care report Ms. Salehi wrote:  
Due to Mr. Hans’ suicidal ideation and suicide attempts, both Dr. Passey and  
Dr. Harrad have recommended that he have 24-hour supervision. To date,  
this support has been provided by friends and family members. For a period  
of time during 2012, Mrs. Hans hired a family friend to stay with them and  
help her out with the care of Mr. Hans as she was experiencing burnout.  
However, this arrangement lasted for a few months and due to personality  
and financial issues, she had to discontinue this arrangement. Since then she  
has continued to seek help from friends and family with this task. Due to  
ongoing suicidal ideation and in order for Mr. Hans to continue living in his  
own home (which is culturally appropriate) without having the burden of care  
on Mrs. Hans, Mr. Hans' needs would be best served by hiring workers  
through a health care agency, that are more familiar with psychological  
issues, and which has nursing services and supervision programs in place for  
their care aides. The cost of 24-hour care is $230- $250 per day plus GST.  
Statutory holidays would be charged at 1.5 times the per diem rate. As  
quoted by Bayshore Home Health and WeCare. It is recommended that he  
receive this service to age 75, as he can move into assisted care at that point  
if he continues to need 24-hour supervision.  
[596] According to Ms. Salehi’s report, the yearly cost for the provision of that level  
of constant supervision and care would be from $81,420 to 88,520 plus GST. The  
net present value of those costs to age 75 would be from $2,017,573 to $2,193,014  
plus GST.  
[597] Under cross-examination Ms. Salehi also, somewhat surprisingly, disclosed  
that while the cost of providing 24 hour care on which her recommendations are  
based would be from $230 to $250 per day the cost of providing such services for  
only 8 to 10 hours per day would be still higher at $250 to $280 per day.  
Hans v. Volvo Trucks North America Inc.  
Page 135  
[598] Volvo submitted that “there is simply no basis for making any award for the  
cost of monitoring Mr. Hans”.  
[599] In making that submission Volvo relied upon the video surveillance evidence  
and the evidence of Dr. Solomons which I have discussed in detail above.  
[600] Volvo also relied on the fact that Mr. Hans had been able to travel to India  
twice for extended periods without constant supervision and the fact that he has not  
attempted to commit suicide since the fall of 2012.  
[601] Volvo submits that those trips to India as well as the four year absence of  
suicide attempts undermine the medical opinions of Drs. Harrad and Passey to such  
an extent that no award for future supervision is necessary.  
[602] I have previously rejected Volvo’s submissions concerning the video  
surveillance and Dr. Solomons’ opinions, and find that neither support the  
submission that no future supervision of Mr. Hans is necessary.  
[603] I have also previously discussed in some detail the extent to which the trips to  
India, while not directly supervised by Mrs. Hans, were indirectly supervised by her  
together with Mr. Hansability able to call upon the assistance of his relatives in the  
village if needed.  
[604] I also once again note the therapeutic value attached to those trips as  
testified by Dr. Harrad, who approved of the trips but also testified that he still  
considers future close supervision of Mr. Hans to be necessary.  
[605] Concerning Volvo’s submission that the absence of suicide attempts since the  
fall of 2012 should result in the conclusion that constant supervision is no longer  
necessary, I accept Dr. Passey’s opinion that while the lack of active attempts is a  
positive sign, it is not the best predictor of future likelihood because of Mr. Hans’  
continuing suicidal ideation and its potential activation by stressors.  
[606] It must, of course, also be noted that although supervision of Mr. Hans since  
September of 2012 has not been as constant as now recommended by Ms. Salehi, it  
Hans v. Volvo Trucks North America Inc.  
Page 136  
has been nearly so by reason of the dedication of Mrs. Hans and Parmjit Hans as  
well as the efforts of others, including Ashleen Hans, other family friends and  
Ms. Bilan.  
[607] If it were possible to require Mrs. Hans, Parmjit Hans and others to continue  
that so far successful level of care and supervision, I would agree that the risks  
requiring constant supervision identified by Drs. Harrad and Passey could be  
significantly reduced.  
[608] Also, if I were confident that possible psychiatric intervention identified by  
Dr. Passey might improve Mr. Hans’ cognitive functioning to a level where he could  
benefit significantly from behavioural therapy, I would be more inclined to accept a  
level of care less than that recommended by Dr. Passey and Dr. Harrad.  
[609] I cannot, however, require Mrs. Hans to continue to do what she has done so  
selflessly for almost seven years. While I have no doubt that she will continue to do  
as much as can be reasonably required of her, there is no certainty that the marriage  
will endure forever. Also, Mrs. Hans is required to remain in the workforce on a full  
time basis which will make her less available or able to carry on as she has done in  
the past. Her failure to do so would constitute a lack of mitigation.  
[610] Similarly, while Parmjit Hans’ devotion to the assistance of Mr. Hans has  
been selfless and remarkable he cannot be compelled to continue doing all that he  
has done. Parmjit Hans also is employed and while his efforts have been untiring  
they have been almost entirely gratuitously given.  
[611] I also do not have confidence that any as yet unsuccessful or untried  
psychological intervention will so improve Mr. Hans’ mental functioning that almost  
constant supervision will not be necessary. While I am hopeful that it could do so,  
the failure of the past many years of psychiatric and pharmacological intervention to  
improve his condition and the total inability of Mr. Hans to participate in cognitive  
behaviour therapy with Dr. Suhail lead me to conclude that the prospect of  
significant improvement is unlikely.  
Hans v. Volvo Trucks North America Inc.  
Page 137  
[612] If the cost of supervisory care recommended by Ms. Salehi was less costly, if  
provided on an 8 to 10 hour per day basis rather than for 24 hours, I would have  
considered the potential cost savings for a less constant supervisory regime.  
[613] Also, if there was evidence that Parmjit Hans would undertake to do what he  
has done in the past for a level compensation that would replace his income from  
employment, I would have considered such an arrangement to be a reasonable  
alternative notwithstanding it would not offer the professional assistance comprised  
in the supervision regimes suggested by Dr. Passey or Ms. Salehi.  
[614] I do not, as suggested by Volvo, accept that if supervision is necessary, it can  
be made compensated for on a basis similar to that in which Parmjit Hans was paid  
$1,000 per month as well as room and board. That was a one-time, short-term  
arrangement with a close dedicated friend. It does not serve as a basis for a cost of  
future care award.  
[615] If, faced with Drs. Harrad and Passey’s opinions concerning the medical need  
for almost constant supervision and Ms. Salehi’s costing of that service in expert  
opinions delivered well before trial, Volvo was of the opinion that a less costly and  
still appropriate basis of compensation for Mr. Hans’ proven medical needs was  
available, such evidence ought to have been adduced.  
[616] I am satisfied that although other less expensive and perhaps appropriate  
means of providing Mr. Hans with the care and supervision he needs may be  
available, it would be at best speculative for me to make any award that is not  
grounded in the evidence.  
[617] The Supreme Court of Canada’s articulation of the approach to be taken in  
assessing future care cost stated in Krangle (Guardian ad litem of) v. Brisco, 2002  
SCC 9 at paras. 21 and 22 quoted above in the Court of Appeal’s decision in  
O’Connell emphasises that:  
1) Damages must be assessed once and for all at the time of trial;  
Hans v. Volvo Trucks North America Inc.  
Page 138  
2) In assessing damages for future care costs the court must rely on the  
evidence as to what care is likely to be in the injured person’s best interests;  
3) The measure of damages is objective based on the evidence;  
4) Adjustments can be made for the contingency that the future may differ from  
what the evidence at trial indicates.  
5) To award less than what may reasonably be expected to be required is to  
give the plaintiff too little and unfairly advantage the defendant.  
[618] In the absence of cogent evidence that there is a viable alternative means of  
reasonably meeting Mr. Hans’ proven future reasonable medical needs, I have  
decided that I should accept the cost of future supervisory care recommended by  
Ms. Salehi.  
[619] I have, however, concluded that although Dr. Passey’s evidence that as yet  
untried psychological intervention may improve Mr. Hans’ condition does not give  
me confidence that his level of need for constant supervision will be reduced, it is a  
potentially possible contingent factor that should be considered.  
[620] I have, additionally concluded that some reduction in the costs of Mr. Hans  
future care should be made for the contingent possibility that he will in future attend  
in India for approximately two to three months in some years where he will not likely  
require such extensive paid supervision.  
[621] I have concluded that an approximately 20% reduction to account for both  
contingencies should be made to the mid-point (approximately $2,105,000) of  
Ms. Salehi’s recommended cost of Mr. Hans’ future care and supervision to age 75.  
[622] In result, I find that Mr. Hans is entitled to an award of $1,684,000 for the cost  
of his future care and supervision.  
Hans v. Volvo Trucks North America Inc.  
Page 139  
4) Home Care Costs  
[623] Ms. Salehi has recommended that Mr. Hans be awarded costs of future care  
for lawn and yard maintenance as well as home maintenance.  
[624] The costs associated to those recommendations are from approximately  
$4,800 to $6,000 per year for yard and lawn maintenance and between  
approximately $2,100 and $2,900 for home maintenance.  
[625] Other than Ms. Salehi’s suggestions that those costs arise from Mr. Hans’  
lack of motivation and depression there is little evidence of medical support or  
necessity for such services.  
[626] I do not doubt that Mr. Hans’ psychological injuries have resulted in his failing  
to perform the yard and household tasks that he once did.  
[627] I also, however, note Dr. Thinda’s opinion that Mr. Hans should become more  
physically active and the evidence of Mrs. Hans and Parmjit Hans that Mr. Hans has,  
recently with coaxing, begun to walk more regularly.  
[628] In those circumstances, I find that the awards for further psychiatric  
counselling I have made, as well as those for his ongoing care and supervision  
should help to improve upon Mr. Hans’ lack of motivation.  
[629] Supervisory care of the type and substance recommended by Ms. Salehi and  
awarded by me should also improve Mr. Hans’ willingness to undertake household  
tasks as well as his overall physical capabilities and level of fitness.  
[630] In all of those circumstances I am satisfied that no awards for future care for  
lawn and yard maintenance or home maintenance are medically necessary.  
[631] In summary, I make the following awards for the cost of Mr. Hans’ future care:  
1) Medications: $75,000  
2) Psychological services: $22,000  
 
Hans v. Volvo Trucks North America Inc.  
Page 140  
3) Care and supervision: $1,684,000.  
TOTAL: $1,781,000  
E.  
Loss of Income Earning Capacity  
[632] The plaintiffs’ claims for both their past and future income losses arising as a  
consequence of Volvo’s negligence are both legally and factually complex.  
[633] That complexity arises because Mr. and Mrs. Hans worked as a team in the  
nature of a true equal partnership in their income earning endeavours as self-  
employed long haul truck drivers. That team and its ability to earn income as a team  
has been irreparably damaged by the consequences of the collision and the  
psychological injuries to Mr. Hans caused by it.  
[634] The plaintiffs’ claims are further complicated by the existence of Mr. and  
Mrs. Hansplans to expand their business interests by operating, through Sai  
Transport Inc., a small flat-bed long haul trucking company of their own by adding  
five additional owner-operated trucks over a period of five years to work for them.  
[635] In that plan, Mr. Hans would have continued to operate the Hans’ vehicle, as  
a part of the fleet as its own profit centre, and would have performed the physical  
work needed to accommodate the use of the other owner-operators. Mrs. Hans  
would have undertaken primary responsibility for securing loads for operators,  
making routing arrangements to maximize revenues, dispatching and providing  
office support to drivers, arranging permits and insurance coverage, and  
bookkeeping.  
[636] I will in these reasons refer to that business expansion plan as the “Sai  
Trucking Venture”.  
[637] The complicating factors I have identified arise both in relation to the plaintiffs’  
claims for past loss of income earning capacity and future loss of income earning  
capacity because of the plaintiffs’ evidence that they intended to commence the Sai  
 
Hans v. Volvo Trucks North America Inc.  
Page 141  
Trucking Venture about one year after the collision and intended to add one driver  
per year until the total of at least five was reached in year five.  
[638] The plaintiffs adduced the expert evidence of a Chartered Accountant,  
Mr. Perry Munton, in support of their business projections from which they  
extrapolate substantial past and future losses of earning capacity.  
[639] Counsel for the plaintiffs has submitted that a net past loss of earning  
capacity of $690,000 is supportable by the totality of the evidence. He has also  
submitted that the evidence supports a future loss of income earning capacity of  
$3,833,000.  
[640] Volvo suggests that far lower awards are appropriate.  
[641] Counsel for Volvo has submitted that if Mr. Hans is entitled to any loss of  
earnings the award should (subject to issues of mitigation which I will later address)  
be assessed based upon past earnings losses of between approximately $30,000  
and $35,000 per year (totaling $210,000 to $245,000) less appropriate income tax  
deductions and that any future income loss should also be based on similar yearly  
earnings.  
[642] Based upon the yearly amounts suggested by Volvo, if Mr. Hans worked to  
age 65, he would suffer future income losses assessed on an income stream basis  
of approximately $750,000 to $875,000 with those amounts being reduced to reflect  
the net present value of such an award.  
[643] In making those submissions, Volvo:  
1) accepts the proposition that Mr. Hans’ losses should be based upon one-half  
of the income that the “team” comprised of Mr. and Mrs. Hans earned in the  
years prior to the collision calculated by reference to the income tax returns  
filed by Mr. Hans (adjusted to the extent Volvo says is necessary to reflect  
actual earned income earned by the plaintiffs in their trucking business); but  
Hans v. Volvo Trucks North America Inc.  
Page 142  
2) denies that either Mr. or Mrs. Hans should be awarded any loss of past or  
future income earning capacity related to the proposed Sai Trucking Venture,  
because it is speculative.  
[644] I will discuss my assessment of the plaintiffsdamages for loss of past and  
future income earning capacity by considering:  
1) the principles to be applied in assessing losses of earning capacity;  
2) the application of the “team” approach to assessment of damages in this  
case;  
3) the amount of past yearly income earned by the plaintiffs before the collision,  
which should be used in assessing their past and future losses of income  
earning capacity; and  
4) the extent to which, if at all, the plaintiffs have established that the Sai  
Trucking Venture should be considered in assessing either their past or future  
losses of income earning capacity, or both.  
[645] I will then determine the awards to be made to each of the plaintiffs for their:  
5) past loss of income earning capacity after deduction of any amounts earned  
from the date of the collision until the date of trial;  
6) future losses of income earning capacity;  
[646] As part of these assessments I will also consider issues of mitigation raised  
by Volvo and the extent to which any proven lack of mitigation must reduce any  
otherwise appropriate awards.  
1) Principles Applicable to Assessment of Damages for Loss of  
Earnings  
[647] In Perren v. Lalari, 2010 BCCA 140, [Perren], our Court of Appeal settled the  
question of how claims for impaired earning capacity can be addressed. After a long  
 
Hans v. Volvo Trucks North America Inc.  
Page 143  
discussion and review of different approaches that had been applied in past cases,  
Garson J.A. stated for the Court at para. 32:  
[32] A plaintiff must always prove, as was noted by Donald J.A. in Steward,  
by Bauman J. in Chang, and by Tysoe J.A. in Romanchych, that there is a  
real and substantial possibility of a future event leading to an income loss. If  
the plaintiff discharges that burden of proof, then depending upon the facts of  
the case, the plaintiff may prove the quantification of that loss of earning  
capacity, either on an earnings approach, as in Steenblok, or a capital asset  
approach, as in Brown. The former approach will be more useful when the  
loss is more easily measurable, as it was in Steenblok. The latter approach  
will be more useful when the loss is not as easily measurable, as in Pallos  
and Romanchych. A plaintiff may indeed be able to prove that there is a  
substantial possibility of a future loss of income despite having returned to his  
or her usual employment. That was the case in both Pallos and Parypa. But,  
as Donald J.A. said in Steward, an inability to perform an occupation that is  
not a realistic alternative occupation is not proof of a future loss.  
[Emphasis in the original.]  
[648] An issue has arisen in this case concerning whether that “real and substantial  
possibility” burden, addressed in Perren, applies only with respect to future loss of  
earning capacity claims.  
[649] That issue arises because in Reynolds v. M. Sanghera and Sons Trucking  
Ltd., 2015 BCCA 232 [Reynolds], the Court of Appeal stated at para. 15:  
[15]  
The burden of proof for past loss of earning capacity is proof on a  
balance of probabilities. It is a different burden of proof than that required to  
show future loss of earning capacity.  
[My emphasis.]  
[650] My review of the authorities leads me to conclude that the referenced  
quotation from Reynolds is an overly broad statement when what is at issue is  
“future events leading to a loss of income” that could have occurred between the  
date an injury was suffered and the date of trial.  
[651] I reach those conclusions for the following reasons:  
Hans v. Volvo Trucks North America Inc.  
Page 144  
1) In Rowe v. Bobell Express Ltd., 2005 BCCA 141 [Rowe], K. Smith J.A. (for  
the Court) after considering the judgment of the Supreme Court of Canada in  
M.B. v. British Columbia, 2003 SCC 53 [M.B.], wrote at paras. 27 to 31:  
[27]  
The Chief Justice said [in M.B.],  
47 There is considerable case law establishing that an award for  
loss of earning capacity is intended to compensate for the loss of an  
asset, the capacity to earn. In Andrews v. Grand & Toy Alberta Ltd.,  
[1978] 2 S.C.R. 229, at p. 251, Dickson J. (as he then was), following  
Jennings v. Cronsberry, [1966] S.C.R. 532, stated that:  
It is not loss of earnings but, rather, loss of earning capacity for  
which compensation must be made: The Queen v. Jennings,  
supra. A capital asset has been lost: what was its value?  
Subsequent decisions have followed this approach: see Earnshaw v.  
Despins (1990), 45 B.C.L.R. (2d) 380 (C.A.), at p. 399; Palmer v.  
Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.), at p. 59; Pallos v.  
Insurance Corp. of British Columbia, (1995), 100 B.C.L.R. (2d) 260  
(C.A.), at para. 27. As Finch J.A. noted in Pallos, these cases "all treat  
a person's capacity to earn income as a capital asset, whose value  
may be lost or impaired by injury".  
[Emphasis in M.B.]  
[28]  
On the question of the appropriate valuation of the lost asset,  
the Chief Justice turned to academic commentary:  
49 As Cooper-Stephenson notes, supra, [Kenneth D. Cooper-  
Stephenson, Personal Injury Damages in Canada, 2nd ed.  
(Scarborough, Ont.: Carswell, 1996)] at p. 138, damages under this  
head are universally quantified on the basis of what the plaintiff would  
have earned, had the injury not occurred.  
As far as concerns lost income, the courts fluctuate between  
the notion of "loss of earnings" and "loss of earning capacity",  
not for the most part intending any aspect of the substance of  
an assessment to depend on the particular wording, since  
damages are universally quantified on the basis of what the  
plaintiff would have, not what he or she could have, earned  
absent the injury.  
[Emphasis in M.B.]  
[29]  
She concluded,  
50 These damages are not, then, based on a fixed value that has  
been assigned to an abstract capacity to earn. Rather, the value of a  
particular plaintiff's capacity to earn is equivalent to the value of the  
earnings that she or he would have received over time, had the tort  
not been committed. It follows that the loss of this value - the loss that  
the plaintiff has sustained, and that the damage award is intended to  
compensate for - should be treated as a loss sustained over time,  
Hans v. Volvo Trucks North America Inc.  
Page 145  
rather than as a loss incurred entirely at the time that the tort was  
committed.  
[Emphasis in Rowe.]  
Thus, in my view, a claim for what is often described as “past  
[30]  
loss of income” is actually a claim for loss of earning capacity; that is, a  
claim for the loss of the value of the work that the injured plaintiff would  
have performed but was unable to perform because of the injury.  
[31]  
Evidence of this value may take many forms. As was said by  
Kenneth D. Cooper-Stephenson in Personal Injury Damages in Canada,  
2nd ed. (Scarborough, Ont.: Carswell, 1996) at 205-06,  
… The essence of the task under this head of damages is to award  
compensation for any pecuniary loss which will result from an inability  
to work. “Loss of the value of work” is the substance of the claim –  
loss of the value of any work the plaintiff would have done but for the  
accident but now will be unable to do. The loss framed in this way  
may be measured in different ways. Sometimes it will be measured  
by reference to the actual earnings the plaintiff would have received;  
sometimes by a replacement cost evaluation of tasks which the  
plaintiff will now be unable to perform; sometimes by an assessment  
of reduced company profits; and sometimes by the amount of  
secondary income lost, such as shared family income.  
[Underscoring emphasis in Rowe.]  
2) In Perren, no distinction was drawn between the principles to be applied in  
assessing past loss of earning capacity and future loss of earning capacity;  
3) Similarly, in the appeal in Reilly (2003 BCCA 49), without differentiating  
between assessment of past and future income loss, the majority of the Court  
of Appeal wrote at paras. 100 to 101:  
[100] An award for loss of earning capacity presents particular  
difficulties. As Dickson J. (as he then was) said, in Andrews v. Grand &  
Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 251:  
We must now gaze more deeply into the crystal ball. What sort of  
a career would the accident victim have had? What were his  
prospects and potential prior to the accident? It is not loss of  
earnings but, rather, loss of earning capacity for which  
compensation must be made: The Queen v. Jennings, supra. A  
capital asset has been lost: what was its value?  
[101] The relevant principles may be briefly summarized. The standard  
of proof in relation to future events is simple probability, not the balance of  
probabilities, and hypothetical events are to be given weight according to  
their relative likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at para.  
27. A plaintiff is entitled to compensation for real and substantial  
Hans v. Volvo Trucks North America Inc.  
Page 146  
possibilities of loss, which are to be quantified by estimating the chance of  
the loss occurring: Athey v. Leonati, supra, at para. 27, Steenblok v. Funk  
(1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). The valuation of the loss of  
earning capacity may involve a comparison of what the plaintiff would  
probably have earned but for the accident with what he will probably earn  
in his injured condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93  
(S.C.). However, that is not the end of the inquiry; the overall fairness and  
reasonableness of the award must be considered: Rosvold v. Dunlop  
(2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at para. 11; Ryder v.  
Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task of the  
Court is to assess the losses, not to calculate them mathematically:  
Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d)  
248 (C.A.). Finally, since the course of future events is unknown,  
allowance must be made for the contingency that the assumptions upon  
which the award is based may prove to be wrong: Milina v. Bartsch,  
supra, at 79. In adjusting for contingencies, the remarks of Dickson J. in  
Andrews v. Grand & Toy Alberta Ltd., supra, at 253, are a useful guide:  
First, in many respects, these contingencies implicitly are already  
contained in an assessment of the projected average level of  
earnings of the injured person, for one must assume that this  
figure is a projection with respect to the real world of work,  
vicissitudes and all. Second, not all contingencies are adverse ...  
Finally, in modern society there are many public and private  
schemes which cushion the individual against adverse  
contingencies. Clearly, the percentage deduction which is proper  
will depend on the facts of the individual case, particularly the  
nature of the plaintiff's occupation, but generally it will be small ...  
[emphasis added in Reilly]  
4) In Lines v. W & D Logging Co., Ltd., 2009 BCCA 106 [Lines], the Court of  
Appeal also considered the submission that the trial judge had erred in  
assessing damages for loss income. At paras. 44 to 45 Tysoe J.A. (for the  
Court) wrote:  
[44]  
As to past wage loss in particular, Mr. Lines observes the trial  
judge first globally assessed his loss by reference to the amounts he  
accepted as the lower end of achievable earnings for a heavy duty  
mechanic, and then discounted it by nearly 20 percent.  
[45]  
Did the judge err in the award for past wage loss as contended  
by the appellants? In Smith v. Knudsen Madam Justice Rowles  
discussed at length the correct approach that should be brought to a  
hypothetical past wage loss claim. She said, noting the distinction  
between proof of actual events and proof of hypothetical events, and  
having referred to the significant cases of the Supreme Court of Canada  
and this Court on the subject at para. 29:  
Hans v. Volvo Trucks North America Inc.  
Page 147  
… What would have happened in the past but for the injury is not  
more “knowable” than what will happen in the future and therefore  
it is appropriate to assess the likelihood of hypothetical and future  
events rather than applying the balance of probabilities test that is  
applied with respect to past actual events.  
[My emphasis.]  
5) Tysoe J.A. then considered the Courts’ earlier decision in Reilly and stated at  
para 49:  
[49]  
given the stated conclusions of the trial judge in para. 219  
Mr. Lines “would have become a heavy duty mechanic or working  
towards obtaining the first class papers of a marine engineer” and at  
para. 223 he “would have become a marine engineer”, the reasons for  
judgment do not demonstrate the hypothetical nature of the attainment of  
a trades qualification. In other words, it appears to me the trial judge  
wrongly treated the ultimate attainment of a trades qualification as a  
certainty and failed to take account of the possibility Mr. Lines would not  
attain this goal at all. This failure is significant to the award for past wage  
loss as failure to embark upon the training, or to progress along the  
qualification path, would have a substantial impact upon the earnings  
Mr. Lines could have earned in the interval between the accident and the  
trial.  
6) After determining that there was sufficient evidence for the Court of Appeal to  
determine the appropriate quantum of damages without remitting the matter  
to this court Tysoe J.A. concluded, with respect to past income loss, at  
para. 53 that:  
[53]  
Given the trial judge’s stated view of Mr. Lines’ past  
achievements and potential for remunerative employment absent injury, I  
consider we must take the view there was a relatively high likelihood that,  
but for the injuries, Mr. Lines would have achieved his goal. I would put  
that degree of likelihood at 85 percent, and discount the award for past  
loss of earnings to reflect that potential. In other words, I would adjust the  
past wage award to $340,000.  
[My emphasis.]  
7) Although in Reynolds the Court of Appeal referred to Lines on the issue of the  
scope of appellate review of damage assessment, it did not advert to the “real  
and substantial possibilities” principle, applied by Tysoe J.A. in Lines, in  
assessing both past and future income loss claims which both required  
consideration of hypothetical or future events.  
Hans v. Volvo Trucks North America Inc.  
Page 148  
[652] For all of those reasons, I do not accept that, without specific discussion of  
the principles engaged, the Court of Appeal in Reynolds purported to over-rule its  
previous decisions in Rowe, Reilly and Lines and the consideration of the Supreme  
Court of Canada’s decisions upon which they were based.  
[653] I am accordingly satisfied that Reynolds should be read as requiring proof of  
past income loss on a balance of probabilities only with respect to actual or past  
events, not hypothetical ones.  
[654] I accordingly conclude 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 tortfeasor, it is not necessary for the plaintiff to establish on a  
balance of probabilities that the event would have occurred.  
[655] What a plaintiff must establish is a real and substantial possibility that a  
hypothetical event led to an income loss. If that real and substantial possibility is  
established, determination of the measure of damages must then include an  
assessment of the likelihood of the event occurring.  
[656] The burden of establishing a “real and substantial possibility” that a  
hypothetical future event may lead to a loss of both past and future earning capacity  
is important in this case due to the Sai Trucking Venture claim, which forms part of  
both the past and future income earning capacity claims advanced by the plaintiffs.  
[657] Because the plaintiffs’ evidence was that they planned to implement the Sai  
Trucking Venture in stages commencing the year after the collision it was an  
anticipated, but still hypothetical, future event impacting their earning capacity as a  
team for five years before the trial as well as into the future.  
2) Application of the “Team” Approach to Assessment of Damages  
[658] Although Volvo accepts that Mr. Hans’ past and future loss of income earning  
capacity claims should be assessed on the basis that he should be awarded one-  
half of any proven income losses suffered by the plaintiffs as a team, that  
 
Hans v. Volvo Trucks North America Inc.  
Page 149  
acknowledgment does not fully address the extent to which a team approach may  
impact the totality of the damages suffered by the plaintiffs.  
[659] In part, that is so because Volvo does not accept that any losses can be  
attributed to the plaintiffs, either individually or collectively, because of what Volvo  
asserts is the speculative nature of the losses attributed to the plaintiffs’ inability to  
implement the Sai Trucking Venture.  
[660] In part also, a team approach to assessment of damages in this case gives  
rise to issues concerning the extent to which income losses suffered by both Mr. and  
Mrs. Hans, as a consequence of injuries suffered only by Mr. Hans, may also be  
recovered by Mrs. Hans who, while herself relatively uninjured, has suffered the loss  
of a partner which has precluded her form earning income.  
[661] It is, therefore, necessary to consider the extent to which a team approach to  
damages is appropriate in this case as well as the extent to which proven losses  
suffered by the plaintiffs are individually or collectively recoverable.  
[662] In Everett v. King (1981), 34 B.C.L.R. 27 (S.C.) [Everett], McKay J. assessed  
the loss of the injured male plaintiff who, together with his uninjured wife, operated a  
retail store through a corporation of which he and his wife were equal shareholders.  
In determining that the plaintiff was entitled to compensation for losses suffered by  
the company as his alter ego, McKay J. stated at para. 10 that:  
10  
The problem before me is somewhat different in that the shares in the  
company are held equally by Mr. and Mrs. Everett. Does that mean  
that Mr. Everett's recovery must be limited to 50% of the lost income?  
I think not. I am not dealing with the respective share holdings of  
strangers at law but rather with a small husband-wife company. It  
matters not whether he has ninety-nine shares and she has one or  
whether he has five hundred shares and she has five hundred shares.  
They operate a small family business in which everything goes into  
the family "pot". I hold that in the circumstances of this case the loss  
sustained by the company was a loss sustained by Mr. Everett. To  
hold otherwise would, in my view, be contrary to the realities of the  
situation.  
[663] The defendant’s appeal of that decision was dismissed.  
Hans v. Volvo Trucks North America Inc.  
Page 150  
[664] In Meyer v. Wadsworth, [1995] B.C.J. 1558 (S.C.) [Meyer], Drake J. was  
required to assess the past income loss of the plaintiff who had worked in  
partnership with her uninjured husband to earn income.  
[665] In assessing the plaintiff’s loss Drake J. wrote, at paras. 11 to 16:  
11 Mr. and Mrs. Meyer were for many years full time "parents" in a group  
home for mentally handicapped persons. They found great satisfaction in this  
work, and lived by the Pauline definition of caritas. They worked together as a  
team, which indeed is the only way they could in such an endeavour, and  
when one is damaged, so is the other. Their situation is analogous to that of  
partners carrying on a trade or business: see Everett v. King (1981), 34  
B.C.L.R. 27, McKay J.  
12 Mr. G. W. Moulds, the executive director of the Delta Career and  
Community Living Society, by which Mr. and Mrs. Meyer were employed,  
gave evidence that they were held in high regard by the Society, were  
regarded as "mentors" and examples to all in the conduct of the various  
group homes which it operated. He also said that they worked as a team,  
which I have already found to be, to all intents and purposes, self-evident.  
13 Mr. Moulds went on to say that Mr. and Mrs. Meyer would have been  
welcome to work for the Society for as long as they wished to do so. And that  
is what, given the physical capacity to do so, they themselves had in mind.  
14 I turn now to the assessment of their past wage loss, that is the total or  
global loss which they have incurred as a team or partnership.  
15 In mid-September of 1991, Mr. and Mrs. Meyer, in view of the  
disabilities suffered by Mrs. Meyer, decided to cut their work month in half,  
and work two weeks on and two weeks off: and this schedule was further  
reduced to weekends only. To these changes, their employer agreed. Their  
income tax returns for the years 1991 to 1994 show a general reduction in  
income from employment to reflect this, and the difference between what they  
earned before the accidents and what they actually earned provides some  
measure of damages. There are, of course, contingencies to be considered:  
on the positive side, they might have had raises in pay, and on the negative,  
their ages and general health might have reduced their working days in any  
event.  
16 I assess their income loss, to the date of trial, globally at $40,000.00  
which sum includes the recovery of some "banked" sick leave time for  
Mrs. Meyer.  
[My emphasis.]  
[666] The evidence establishes that at all material times after they leased their first  
truck from Volvo up to and including the time of the collision Mr. and Mrs. Hans  
operated their trucking business as a team. They shared responsibility for driving  
Hans v. Volvo Trucks North America Inc.  
Page 151  
and each undertook those other aspects of the work involved in the business which  
their personal attributes and abilities best suited.  
[667] NTC leased both the first truck as well as the Truck that is the subject of this  
action to Mr. Hans. NTC and thus Volvo knew, because of early discussions about  
the need for a fully automatic transmission to accommodate Mrs. Hans’ physical  
disability, that both trucks would be operated by the plaintiffs as a team.  
[668] The evidence also establishes that although for tax purposes the plaintiffs’  
trucking business was treated as a sole proprietorship operated by Mr. Hans with  
some splitting of income to Mrs. Hans, in reality the business was operated as an  
equal partnership with all income earned after expenses going into the family  
coffers. The same would have occurred with respect to the Sai Trucking Venture had  
it been implemented.  
[669] I find that as in Meyer when one member of the team was injured, so was the  
other, and that it is appropriate to consider the loss of the partnership globally in  
determining both past and future loss of income earning capacity.  
[670] That is particularly so in this case where Mr. Hans’ physical attributes were so  
important to the success of the team because of Mrs. Hansown physical disability  
as well as her relative lack of the necessary strength to perform some tasks,  
specifically related to flat-bed trucking which was intended to be the core business of  
the Sai Trucking Venture. While as a team member her ability to do other work offset  
those physical aspects of the job for the benefit of the team as a whole, without that  
symbiotic relationship her earning capacity was reduced by the absence of her  
partner.  
[671] Having said that, I am also satisfied that, as appropriately acknowledged by  
counsel on their behalf, notwithstanding that the team losses should be assessed  
globally, Mrs. Hans’ proven ability to earn income in the past, as well as what she  
may be anticipated to earn in the future without the benefit of her partnership with  
Hans v. Volvo Trucks North America Inc.  
Page 152  
Mr. Hans, must be considered and accounted for in assessing both her past and  
future losses of income earning capacity.  
[672] That issue does not arise with Mr. Hans’ losses of either past and future  
earning capacity except to the extent that income earned by him between late 2009  
(when he and Mrs. Hans began driving for his brother) and October of 2011, before  
his first suicide attempt, must be deducted from any otherwise appropriate award for  
his past loss of earning capacity.  
3) Yearly Income Earned by the Plaintiffs before the Collision  
[673] The plaintiffs adduced the expert evidence of Mr. Perry Munton to provide an  
analysis of their profits from their business operations during the years 2007 and  
2008. That report was dated September 6, 2012.  
[674] Mr. Munton also prepared a second report dated August 18, 2015 related to  
financial projections for the Sai Trucking Venture that I will discuss when considering  
that aspect of the plaintiffs’ loss of earning capacity claims.  
[675] In his first report Mr. Munton wrote that:  
You have asked me the following two questions:  
1.  
What was Amandeep Hans’ profit from trucking during the years 2007  
and 2008?  
2.  
If this amount is different from the taxable income reported on  
Mr. Hans’ income tax returns, please comment on the differences?  
Mrs. Pavandeep Hans does the bookkeeping for her husband’s trucking  
business. She has provided me with all the income and expense records she  
has available for the years 2007 and 2008. She advised me these are the  
same records that she received back from their accountant after preparation  
of the annual income tax returns. Attached to this letter are my calculations  
based upon the income and expense documents and personal income tax  
returns provided to me.  
I have chosen to calculate the business profit as Mr. Hans’ earnings before  
interest, taxes, depreciation and amortization (“EBITDA”). This method is  
often used to analyze and compare profitability because it eliminates the  
effects of financing and accounting decisions. The EBITDA for Mr. Hans’  
trucking business is calculated to be as follows:  
2007  
2008  
$120,105  
$114,703  
 
Hans v. Volvo Trucks North America Inc.  
Page 153  
I have commented on the differences between my calculations and the tax  
returns in the notes to my schedules.  
[676] In response to that report, Volvo also relied on the expert evidence of a  
Chartered Accountant. In a report dated September 25, 2014, Mr. Jeffrey Salton  
took issue with Mr. Munton’s approach to the determination of profit based upon an  
EBITDA analysis.  
[677] I need not, however, record in any detail the bases of Mr. Salton’s objections  
to Mr. Munton’s analysis. I say that because:  
1) Unlike Mr. Munton, Mr. Salton did not himself analyse the source documents  
upon which Mr. Munton made his calculations. Those include documents that  
show the revenue was under-reported in 2007 by $14,087 and by $62,087 in  
2008.  
2) While Mr. Salton took exception to the inclusion of those amounts by  
Mr. Munton as revenue in reaching his assessment of income earned, I am  
satisfied that Mr. Munton’s analysis of the source documents should be  
preferred over Mr. Salton’s objections, especially when Volvo did not  
undermine Mr. Munton’s conclusions about the inclusion of those amounts  
either through cross-examination or by its own inspection of the documents.  
3) It is also noteworthy that while Mr. Munton included additional revenues in his  
calculations based on the documents provided, he also increased expenses  
related to “fuel and IFTA” by approximately $10,000 in 2007 and $24,000 in  
2008 so that income in each year was reduced by those amounts.  
4) In relation to one of Mr. Salton’s most monetarily significant criticisms of  
Mr. Munton’s analysis – the removal of a depreciation deduction of more than  
$50,000 each year Mr. Salton failed to appreciate that the Hans’ first truck  
(acquired before December of 2007) and the Truck which is the subject of this  
action (acquired in December of 2007), for which depreciation was deducted  
for tax purposes, were both purchased and financed through Volvo Financial  
Hans v. Volvo Trucks North America Inc.  
Page 154  
Services on an “Open End Lease” which allowed the plaintiffs to purchase the  
vehicles for $1.00 at the end of the lease to acquire the significant residual  
value of each vehicle.  
5) Mr. Salton’s analysis that “a reasonable estimate for the profit for the trucking  
business” in 2007 (inclusive of net nominal wage of $25,000 to Mrs. Hans) as  
being $30,186 and in 2008 (inclusive of a nominal wage of $20,000 to  
Mrs. Hans) as being $35,085, of which amount Mr. and Mrs. Hans would  
each have received one half (approximately $15,000 to $17,500 per year), is  
not supported either by common sense or comparative evidence.  
6) Comparative evidence includes the fact that Mrs. Hans can earn  
approximately $48,000 per year in wages as a dispatcher for a trucking  
company and that Parmjit Hans earns at least $45,000 per year as a truck  
driver, working for wages.  
7) I also note that in Mr. Munton’s second report, which I will later discuss in  
detail, he reported that his review of compensation rates for an employed  
truck driver in a small business in the Vancouver area in August of 2015 was  
$50,000 per year. That evidence was not challenged.  
[678] I accordingly find that, with some adjustment, I can more safely rely on  
Mr. Munton’s analysis than that of Mr. Salton.  
[679] The adjustment I consider to be necessary to Mr. Munton’s analysis and  
calculations relates to his deduction of depreciation expenses for the two different  
trucks used in the business in 2007 and 2008.  
[680] While the depreciation deduction is allowable for tax purposes and has the  
effect of decreasing profits for that purpose, to determine loss of earning capacity in  
this case that allowable tax deduction should have been offset to some extent by the  
actual cost of lease payments in each year ($31,488) to reflect the income earned in  
each of those years.  
Hans v. Volvo Trucks North America Inc.  
Page 155  
[681] In 2007 Mr. Munton deducted $55,000 for depreciation, and in 2008 he  
deducted $51,592. I am satisfied that to reflect actual earnings in those years the  
lease expense of $31,488 should have been deducted as an expense. The net result  
is that in 2007 the net income of the business before taxes would be $88,617  
($120,105 - $31,488) and in 2008 would be $83,215. To those amounts, however,  
the residual value of the leases accrued over the term of the lease must be added as  
deferred income in each year to reflect the before tax profits from the business.  
[682] The evidence establishes that the residual value of the original truck at the  
end of its lease was $49,000 which was applied as a trade-in to acquire the Truck in  
December of 2007. The term of the lease purchase of the Truck was 4 years.  
[683] Assuming that, but for the collision, the residual value of the Truck would  
have also been approximately $50,000, a yearly deferred income of $12,500 should  
be added to Mr. Munton’s adjusted calculations.  
[684] In result, I find that the pre-tax income earned by the plaintiffs from their  
trucking business in 2007 was $101,117 and in 2008 it was $95,715.  
[685] I have concluded that the average of those yearly amounts (being  
approximately $98,500) establishes a reasonable base line upon which to assess  
the plaintiffs’ past and future loss of income earning capacity from their trucking  
business as it existed on January 31, 2009.  
[686] To the extent that it may be necessary to assess the plaintiffs’ losses  
individually, rather than collectively, the yearly base line amounts I will use for each  
is $49,250.  
4) The Sai Trucking Venture  
[687] The plaintiffs seek damages for their alleged loss of past and future income  
capacity based not only upon their pre-collision income, but also for their loss of  
opportunity to pursue their plans to expand their business interests by operating a  
small flat-bed long haul trucking company.  
 
Hans v. Volvo Trucks North America Inc.  
Page 156  
[688] In implementing that Sai Trucking Venture Mr. Hans was to have continued to  
operate the Hans’ own vehicle, as a part of the expanded fleet. He would also have  
performed the physical work needed to accommodate the use of owner-operators  
whose vehicles would comprise the rest of the fleet. Mrs. Hans was to have  
undertaken primary responsibility for securing loads for the operators, making  
routing arrangements to maximize revenues, dispatching and providing office  
support to the drivers, arranging for permits and insurance coverage and providing  
necessary bookkeeping services.  
[689] The plaintiffs’ evidence is that they intended to commence the Sai Trucking  
Venture about one year after the collision and intended to add one driver per year  
until a total of at least five owner-operated vehicles was reached in year five. There  
is also some evidence that they intended to acquire a second truck which they would  
have had operated by an employed driver whom they would hire.  
[690] In his second expert report dated August 18, 2015, Mr. Munton provided a  
report of financial projections for the company Sai Transport Inc. based upon the  
plaintiffs’ plans and income projections from which the plaintiffs have extrapolated  
past and future income loss claims. In doing so, Mr. Munton did not include  
projections based upon the purchase of a second truck to be owned by the plaintiffs  
and driven by a hired driver because “more information would be necessary to make  
that assumption”.  
[691] I accordingly also do not consider the potential impact of the acquisition of a  
second truck on the plaintiffs’ loss of earnings claims.  
[692] In considering the plaintiffs’ claims based on the Sai Trucking Venture  
projections, I will proceed as follows:  
1) I will first determine whether the plaintiffs have established a real and  
substantial possibility that the Sai Trucking Venture would have been  
implemented but for the collision and the injuries suffered by Mr. Hans.  
Hans v. Volvo Trucks North America Inc.  
Page 157  
2) If a real and substantial possibility has been established, I will next assess the  
likelihood that the venture would have been successful, including whether the  
projections of income projected by Mr. Munton could have been met and also  
the extent to which contingencies, other than those related to revenue  
projections, should impact the quantum of any award based upon the  
proposed venture.  
3) Finally, I will discuss the extent to which the plaintiffs should be capable of  
mitigating both individually and collectively any future loss of capacity that  
would otherwise be suffered by them as a consequence of Volvo’s  
negligence.  
[693] After completing that process I will then determine the extent to which, if at all,  
the Sai Trucking Venture should impact the plaintiffs’ claims for both past and future  
loss of earning capacity.  
a) Is there a real and substantial possibility that the Sai Trucking  
Venture would have been implemented but for the collision?  
[694] The primary argument advanced by Volvo in respect of the Sai Trucking  
Venture as a basis for any award of loss of earning capacity is that “this claim is  
entirely speculative and should be given no credence”.  
[695] In support of that position Volvo cited the lack of any expert evidence to  
support the expanded business claim and “in particular the failure to provide any  
expert evidence on the success/failure rate of small trucking businesses”.  
[696] In opposing the plaintiffsassertions of likely success and profitability, Volvo  
referred also to the spotty success of Mr. Collick, whose evidence the plaintiff relied  
upon, as well as the plaintiffs’ own numerous changes of employers in the flat-bed  
industry before they ultimately left to join Yanke.  
[697] Volvo further relied upon Mr. Hans’ lack of business experience, other than as  
an owner-operator, and Mrs. Hans’ lack of managerial experience. Volvo submitted  
that the plaintiffs’ collective lack of business and managerial experience, including  
 
Hans v. Volvo Trucks North America Inc.  
Page 158  
the lack of any experience in the hiring and firing of drivers or in retaining owner-  
operators in a competitive industry, make it highly unlikely that the Sai Trucking  
Venture would have succeeded.  
[698] Although Volvo’s arguments relating to the lack of likely success of the Sai  
Trucking Venture raise many valid issues for consideration, I am satisfied that the  
arguments and issues raised are more applicable to the second stage of the inquiry  
to be undertaken in assessing loss of earning capacity based upon hypothetical  
future events than to the first stage.  
[699] The first stage of the future events inquiry is into whether there is a real and  
substantial possibility that but for the collision the Sai Trucking Venture would have  
been undertaken by the plaintiffs as planned. If a real and substantial possibility is  
established, the second stage of the inquiry requires assessment of the likelihood of  
the potential success of the venture. See: Perren at para. 32; Reynolds at para. 16;  
and Lines at para. 57.  
[700] Concerning the first stage of the analysis, I find that the evidence as a whole  
establishes a very real and substantial possibility that the plaintiffs would have  
implemented the Sai Trucking Venture in the year after the collision if the collision  
had not rendered the venture virtually impossible to pursue because of Mr. Hans’  
injuries.  
[701] I reach that conclusion because:  
1) The evidence establishes that the plaintiffs had the ambition and plan to  
eventually operate their own flat-bed trucking business.  
2) The evidence also establishes that before the collision Mr. and Mrs. Hans  
were both driven to succeed financially. Mr. Hans’ friends and co-workers  
testified as to his ambition and desire to own his own business.  
3) Mrs. Hansdrive and ability to overcome obstacles to success are evidenced  
not only by her words, but also by her past entrepreneurial history. She did  
Hans v. Volvo Trucks North America Inc.  
Page 159  
not let her physical limitation caused by childhood polio stand in the way of  
any of her goals. She took driving instructor training and started her own  
driving school to double her income earning ability over that which she could  
earn while working at McDonald’s at night when Mr. Hans was home with the  
children.  
4) Most impressively, Mrs. Hans obtained a Class 1 driver’s license with air  
brake endorsement as the first person in British Columbia with polio to do so.  
That required not only the ability to obtain that licensing, but also the  
determination to approach the regulating authority and obtain permission  
which had never been previously granted.  
5) The plaintiffs’ joint goal of becoming team long haul drivers was realized as a  
consequence not only of Mrs. Hansdetermination, but also because of their  
shrewd decision to acquire their first Volvo truck which could be specially  
equipped not only for team driving to accommodate Mrs. Hans’ physical  
disability, but also to allow Mrs. Hans to pass the Class 1 licensing testing on  
that vehicle.  
6) The evidence further establishes that Mrs. Hans’ resolve and ability were  
complemented and enabled by Mr. Hans’ own experiences and abilities as a  
truck driver and especially as a flat-bed driver that allowed him to do those  
aspects of the operations that Mrs. Hans could not physically handle. Not the  
least of those abilities were his stamina, agility and physical strength, all of  
which were essential to the work he performed for the team.  
7) The evidence also establishes that flat-bed long haul trucking industry is a  
male dominated one in which Mr. Hans’ physical prowess and experience as  
a successful owner-operator together with his team building abilities, testified  
to by his friends and former co-workers, which he had gained in the material  
supply industry would likely have served the new venture well.  
Hans v. Volvo Trucks North America Inc.  
Page 160  
8) Implementation of the Sai Trucking Venture was in the planning stages  
before collision as evidenced by the incorporation of Sai Trucking Inc. in  
2007 (although it was struck in 2010 after the collision for failing to file  
necessary reports).  
9) Mr. Collick testified that he also was aware that the plaintiffs had plans to  
build their own business and that he believed they were capable of doing so.  
10) Mr. Collick also testified that Mrs. Hans was one of the sharpest drivers he  
had encountered in his years in the long haul trucking business and was  
constantly asking questions to improve her knowledge of the industry. She  
understood routing to maximize profits and regularly used that knowledge to  
do so as an owner-operator. She also understood dispatch, one of the tasks  
she would undertake in an expanded operation. Mrs. Hans work as a  
dispatcher after the collision confirms that capability.  
11) The evidence also establishes that while Mrs. Hans was working on long  
haul assignments with Mr. Hans during their employment as an owner-  
operator team with various flat-bed trucking companies, she made contacts  
with not only brokers but also directly with potential customers with a view to  
eventually using those contacts to obtain future business for their own  
business.  
[702] In Johal v. Meyde, 2014 BCCA 509, the Court of Appeal held that it is not  
speculative to consider that a career path may lead to promotions for a person of  
ability.  
[703] I find that Mr. and Mrs. Hans were on a career path as long haul truck drivers  
that was intended to culminate in their owning and operating a small flat-bed trucking  
business. I also find that they had taken the necessary steps to implement that plan  
in the near future through their work experience, planning and shared ambition.  
Hans v. Volvo Trucks North America Inc.  
b) The likelihood of success of the Sai Trucking Venture  
Page 161  
[704] My finding that the plaintiffs have established a real and substantial possibility  
that they would have implemented the Sai Trucking Venture in the year after the  
collision requires that I embark upon second stage analysis of assessing the  
likelihood of success of the venture.  
[705] The second expert report prepared by Mr. Munton in which he provides his  
opinion on the financial projections of Sai Transport Inc. is premised upon the  
validity of a number of assumptions.  
[706] Important to my assessment of the extent to which Mr. Munton’s opinion is  
sufficiently supported by the evidence for me to consider his projections to be  
reliable in assessing the plaintiffs’ past and future loss of capacity claims related to  
the Sai Trucking Venture are the following directions given and assumptions which  
the plaintiffs’ counsel asked him to make.  
[707] When engaging Mr. Munton to make his second report, counsel for the  
plaintiffs wrote:  
Mrs. Hans will testify that there is a standard method of carrying on business  
as a trucking company using owner operators. Applying her knowledge, the  
following is the framework for the business:  
1. Amandeep Hans would continue to drive a company owned truck;  
however, Pavandeep Hans would no longer drive. Her role in the new  
business was intended to be that of office manager,  
bookkeeper/accountant and dispatcher. Initially, there would be no  
requirement to have infrastructure such as a secured yard or indeed a  
separate office space. The intention was that Mr. and Mrs. Hans would  
work out of their home and eventually after purchasing a home of their  
own would convert a basement or another part of the home to an office  
and dispatch centre;  
2. Owner/operators are charged a flat 15% of gross revenues plus GST.  
Owner/operators pay at their own expense all charges related to the  
operation of their truck. These include the following:  
a. cargo insurance;  
b. Fuel tax;  
c. Fuel;  
d. Work Safe;  
e. Office expenses;  
 
Hans v. Volvo Trucks North America Inc.  
Page 162  
f. log book audit fees;  
g. Repairs;  
h. Parking;  
i. Drug tests;  
j. Signage; and  
k. Vehicle insurance.  
Owner/operators would be expected to gross about $25,000 - $30,000 per  
month. In view of the fact that the Hans were somewhere in between, I will  
request that you use the more conservative figure of $25,000 per month.  
Accordingly for each owner operator truck Sai Transport Inc. would earn  
$3,750 per month.  
In addition to owner/operator trucks, Mr. and Mrs. Hans felt it was prudent to  
actually own two vehicles within the corporation and would accordingly have  
lease payments for a second truck. The intention of Mr. Hans continuing to  
drive was that his revenues would pay expenses related to the company and  
would provide the beginning of a decent bottom line for Sai Transport Inc.  
Accordingly, would you please take the revenues reported by Mr. and  
Mrs. Hans found in your earlier report and use that as one of the revenues  
streams for the new company. With respect to the second company owned  
truck would you please book $25,000 as income against that vehicle. That  
figure is intended to be net of driver wages that would be paid to an employee  
driver.  
Costs  
The following would be anticipated costs for running Sai Transport Inc.:  
1. Office rent and supplies $600 per month;  
2. Accounting $2,500 per year;  
3. Load Link subscription $500 per month. Load Link is the electronic  
bulletin board brokerage system for load pickups that is utilized by all  
trucking companies;  
4. Work Safe Assessments, I am not sure how much that would be. I  
would ask that you insert the appropriate amount;  
5. Cargo and general liability insurance $2,000 per year;  
6. Miscellaneous $150 per month.  
And if there is anything that you believe as an accountant ought to be  
included recurring expenses please note those.  
In terms of start-up expenses, permits are a one-time expense of $5,000,  
office equipment, cell phones and other related items total $2,000.  
Mrs. Hans is of the view that given her contacts in the industry and her  
understanding of Load Link she would have been able to employ both  
company owned trucks and to have four owner/operators working full time for  
the company by the end of 2012. The plan going forward would be to add  
trucks as needed. Using Load link alone, Mr. and Mrs. Hans were of the view  
Hans v. Volvo Trucks North America Inc.  
Page 163  
that they could have added another one or two trucks per year to the owner  
operator fleet thereby increasing revenues which would largely translate  
directly to the bottom line.  
Please apply all applicable prudent accounting principles in creating this pro  
forma. Would you also please analyze the point at which the owner/operator  
trucks would be able to service the monthly expenses of Sai Transport Inc.  
This will enable the court to examine any scenario that it feels is most likely in  
terms of the number of trucks entering into and remaining with Sai Transport  
Inc.  
[708] As I noted above, in his projections Mr. Munton did not accept the assumption  
that Sai Transport Inc. would purchase a second truck and hire a driver to operate it  
due to lack of sufficient information.  
[709] Mr. Munton accepted all other assumptions he was asked to make and in his  
report made the following additional ones:  
a)  
b)  
Owner operators would work 12 months during the year;  
Revenue from operating the Company owned truck will be $300,000  
per year, based on a review of Mr. Hans actual operating results in  
2007 and 2008 (Schedule 4);  
c)  
d)  
Variable costs associated with operating a Company owned truck  
would amount to 53.4% of trucking revenue, based on a review of  
Mr. Hans actual operating results in 2007 and 2008 (Schedule 4);  
The fixed costs associated with operating a Company owned truck  
would include annual insurance and depreciation expense of $6,000  
and $18,000, respectively (Schedule 4);  
e)  
f)  
Office equipment would depreciate at the rate of 25% per year;  
General trucking rates and associated direct costs will rise by 3% per  
year;  
g)  
h)  
i)  
Operating overhead expenses will increase at the rate of 2% per year;  
SAI would be subject to corporate income tax at the rate of 15%;  
A reasonable interest rate on financing provided to the Company  
would be 5%; and  
j)  
Mr. Hans would have transferred his truck to the Company at a  
market value of $127,000 on or about the beginning of 2009.  
[710] In preparing his opinion Mr. Munton postulated two separate divisions in Sai  
Transport Inc. (the dispatch division and the trucking division) from which net income  
would be derived.  
Hans v. Volvo Trucks North America Inc.  
Page 164  
[711] In summary, the “trucking division” would earn income from Mr. Hans’  
operation of the company owned truck and the “dispatch division” would earn  
income from the owner-operated trucks organized, dispatched and overseen  
primarily by Mrs. Hans with assistance from Mr. Hans as needed.  
[712] Based on the assumptions made by him, as outlined above, Mr. Munton  
projected the following income (net of corporate taxes) available for distribution to  
Mr. and Mrs. Hans as the two shareholders:  
Dispatch  
Projected Net Income Division  
Trucking  
Division  
Sai Transport Inc.  
Total  
91,758 $  
Year 1  
Year 2  
Year 3  
Year 4  
Year 5  
$
$
$
$
$
12,453 $  
104,210  
149,862  
194,160  
241,201  
290,763  
54,748 $  
95,572 $  
139,060 $  
184,913 $  
95,114 $  
98,588 $  
102,141 $  
105,850 $  
[713] Since based on those projections year 5 would have occurred in 2015,  
immediately before the commencement of this trial, Mr. Munton’s forward looking  
projections would be based upon a net income of $290,763 per year until the  
company ceased operations. Based upon the present value of money, that yearly  
income would extrapolate arithmetically to a future loss of approximately $5,800,000  
if the company were to operate for 25 years from the date of trial until Mr. Hans had  
reached age 65.  
[714] The validity and reliability of any expert opinion is dependent upon the  
reliability of the evidence adduced in support of the opinion as well as the extent to  
which assumptions relied upon have been proven.  
[715] For the most part, the assumptions relied upon by Mr. Munton have been  
proven to be valid.  
[716] There is, for example, abundant evidence to confirm that owner-operator’s  
revenue based on 15% of gross revenues plus GST is an attainable industry norm  
Hans v. Volvo Trucks North America Inc.  
Page 165  
and that the listed expenses chargeable to owner-operators are those generally  
borne by the owner operator.  
[717] There is also no evidence to contradict the assumptions that the “anticipated  
costs for running Sai Transport Inc.” or the anticipated one time “start-up expenses”  
are unreasonable.  
[718] What is problematic, however, are the assumptions based upon the length of  
time it would be necessary to grow the Sai Trucking Venture to a total of 6 trucks,  
the rate of that anticipated growth and the ability of the plaintiffs to garner enough  
work for the company truck and the five owner-operators to meet the revenue  
projections Mr. Munton assumes were achievable and maintainable.  
[719] Of specific concern are Mr. Munton’s assumptions that:  
1) the owner-operators would work 12 months per year each at gross revenue  
roughly equivalent to the $300,000 obtained by Mr. and Mrs. Hans in 2007  
and 2008; and  
2) the “variable costs associated with operating a Company owned truck would  
amount to 53.4% of trucking revenue based on Mr. Hans’ actual operating  
results in 2007 and 2008”.  
[720] As I discussed when assessing Mr. and Mrs. Hans income for the years 2007  
and 2008, although the revenue earned in each year did approximate $300,000 per  
year, I find that the adjusted net income earned by Mr. and Mrs. Hans was in the  
range of $100,000 each year. Expenses were therefore roughly equivalent to 66%  
rather than 53.4% of the trucking revenue.  
[721] Also, to obtain that net income of $100,000 in each of those years, it was  
necessary for Mr. and Mrs. Hans to work full time as team drivers to maximize  
revenue. In the Sai Trucking Venture the work done by Mrs. Hans as a driver would  
have to be replaced by a hired driver at a cost of approximately $50,000 per year,  
thus increasing the expenses to approximately 75% of revenue.  
Hans v. Volvo Trucks North America Inc.  
Page 166  
[722] The evidence of Mr. Collick also establishes that many owner-operators do  
not wish to work in the winter months, preferring to take extended holidays in  
warmer climates. They also tend to prefer to do the relatively “short haul” routes  
between Canada and California where competition for loads is strong and revenue is  
less than in the less sought after but more remunerative long distance hauls that  
Mr. and Mrs. Hans had undertaken to their financial advantage.  
[723] I must also advert to the apparent lack of success in the flat-bed trucking  
industry experienced by Mr. Collick himself when he attempted to start-up and run  
his own small company after years of experience with other operators both as an  
employee and as a manager/partner.  
[724] I accept that in many ways Mr. and Mrs. Hans were better positioned to be  
more successful than Mr. Collick because of their abilities as a highly capable team  
and more specifically as a Punjabi speaking team in an industry in which many of  
the drivers speak Punjabi more fluently than they do English. Mr. Collick’s potential  
for success was seriously limited because he did not have those advantages. I  
cannot, however, assume that although their mentor failed Mr. and Mrs. Hans would  
succeed to the extent projected by Mr. Munton.  
[725] While I do not agree with Volvo’s submission that it was a pre-condition to  
establishing any entitlement to damages for loss of income earning capacity to  
support the Sai Trucking Venture claim, the lack of such evidence, including expert  
evidence as to the success or failure rate of small trucking businesses, does require  
that I exercise considerable caution when assessing projections that are very much  
based upon the plaintiffs’ self-evaluation of their potential success.  
F.  
Past Loss of Earning Capacity  
[726] After considering the totality of the evidence that I consider reliable I agree  
that Mr. Munton’s approach to the issue of the potential financial viability of Sai  
Transport Inc. by looking separately at the potential income from the two divisions he  
has identified is a reasonable one because it captures the potential for ongoing  
 
Hans v. Volvo Trucks North America Inc.  
Page 167  
income from the established trucking business and projects potential income from  
the dispatch business that had no proven track record.  
[727] I will accordingly consider the income potential from each division separately  
rather than collectively in assessing the plaintiffs’ past and future loss of earning  
capacity.  
[728] In doing so I will further assess the likelihood of the success of the Sai  
Trucking Venture.  
1) Assessment of Loss of Past Income Earning Capacity related to  
the “Trucking Division” of the Sai Trucking Venture  
[729] I have previously found that the pre-tax income earned by the plaintiffs from  
their trucking business in 2007 was $101,117 and in 2008 was $95,715 and that an  
average of those yearly amounts (approximately $98,500) establishes a reasonable  
base line upon which to assess the plaintiffs’ past and future loss of income earning  
capacity from their trucking business as it existed on January 31, 2009.  
[730] Mr. Munton’s income projections for the trucking division of Sai Transport Inc.,  
which would effectively be derived only from the efforts of Mr. Hans, rather than from  
the efforts of both plaintiffs, are roughly the same as that which I found was  
attributable by the plaintiffs working as a team.  
[731] His net income projections for the trucking division only of the Sai Trucking  
Venture utilizing only Mr. Hans as a driver approximate $490,000 over the five years  
(beginning in January of 2010 and ending in December 2014). To that amount  
would have to be added a further approximately $210,000 for the two years between  
the collision and the date of trial that are not covered by his projections.  
[732] I cannot accept those projections as a basis for determining the plaintiffs’  
individual or collective loss of income earning capacity for that period because they  
fail to reflect the loss of Mrs. Hans as a team driver.  
 
Hans v. Volvo Trucks North America Inc.  
Page 168  
[733] I find that after the collision and prior to this trial the plaintiffs as a team  
collectively lost income from their established team trucking business of  
approximately $690,000 over the seven years subsequent to the collision and the  
start of trial. That amount is based upon a total loss of $98,500 per year.  
[734] Due to the plaintiffs’ team approach to their established trucking business that  
loss would be equally apportioned.  
[735] That apportionment would result in an award to each plaintiff individually of  
$345,000 for past loss of earning capacity subject to deduction for income earned by  
each of the plaintiffs during the last several years as well as any necessary  
deductions for any failure of the plaintiffs to mitigate their losses as asserted by  
Volvo that I will later discuss.  
2) Assessment of Loss of Past Income Earning Capacity related to  
the “Dispatch Division” of the Sai Trucking Venture  
[736] Mr. Munton’s projections for the loss of income attributable to the “dispatch  
divisionof the Sai Trucking Venture in the five years from January 2010 to  
December 2014 total approximately $487,000. To that amount would have to be  
added an additional approximately $185,000 for the year 2015, to account for the six  
years prior to trial after the plaintiffs’ intended start-up date for the venture.  
[737] If accepted, those projections would add a total of more than $670,000 to the  
plaintiffs’ loss of $690,000 in past earning capacity attributable to their inability to  
continue the operations of the trucking division due to the collision, so that the total  
loss would be $1,360,000.  
[738] Although I have concluded that the plaintiffs have established a real and  
substantial possibility that but for the collision they would have undertaken the Sai  
Trucking Venture, assessment of the likelihood of its success must include whether  
the income projected by Mr. Munton would likely have been met, as well as the  
extent to which contingencies, other than those related to revenue projections,  
 
Hans v. Volvo Trucks North America Inc.  
Page 169  
should impact the quantum of any loss of income earning capacity based upon the  
dispatch division of the venture.  
[739] My consideration of the totality of the evidence and especially that of  
Mr. Collick leads me to conclude that both the length of time required to meet the  
income projections in Mr. Munton’s report as well as the extent to which they could  
eventually be met must be subject to downward adjustment.  
[740] Although Mrs. Hans was confident of both the plaintiffs’ ability to add five  
owner-operators in five years commencing in 2010 and that each could earn  
revenue similar to that earned by Mr. and Mrs. Hans as team drivers, I have  
concluded that she was likely over-confident in respect of both issues.  
[741] While there is no direct evidence that establishes that the goal of five  
additional owner-operators in five years could not be met, I am satisfied that  
notwithstanding the plaintiffsown abilities as owner-operators, their inexperience in  
the management and direction of a small trucking company coupled with the need to  
garner business for their fleet in a competitive environment require application of a  
negative contingency.  
[742] Rather than assessing that negative contingency in percentage terms, I have  
concluded that it is better addressed by a longer start-up period rather than 5 years  
of constant expansion.  
[743] In doing so I consider that a start-up period from 6 to 8 years would more  
likely be necessary before a fleet of 5 owner-operators would be in place.  
[744] The evidence as a whole also convinces me that Mr. Munton’s revenue  
projections for the owner-operators are overly optimistic due primarily to his  
assumptions that each would work 12 months per year producing roughly the same  
revenue as that produced by Mr. and Mrs. Hans in the past.  
[745] Mr. Collick’s evidence that many owner operators prefer to take lengthy  
holidays and prefer to work the less remunerative, more competitive shorter routes  
Hans v. Volvo Trucks North America Inc.  
Page 170  
between Canada and California leads me to conclude that projected gross revenue  
of approximately $300,000 per year per owner-operator escalating by approximately  
10% over five years would not likely be attained.  
[746] I am satisfied that in combination those two factors require a reduction of  
Mr. Munton’s projected pre-trial income from the dispatch division ($670,000) by  
35% (approximately $234,000) to $436,000 to reflect a more likely level of success  
of the dispatch division for the six years from January 2010 to the beginning of this  
trial.  
[747] I am also satisfied that the foregoing arithmetic assessment of the pre-trial  
success of the venture based on likely attainable projected revenue must be subject  
to further reduction arising from the possibility that the Sai Trucking Venture could  
fail or be abandoned in whole or in part because of lack of revenue or the ability to  
attract sufficient owner-operators in favour of a return by Mrs. Hans to team driving  
with its proven track record of success of approximately $100,000 per year rather  
than the roughly $50,000 per year that Mr. Hans would be able to earn as a single  
driver in the Sai Trucking Venture.  
[748] I assess the likelihood of those negative contingencies at 20% of $436,000.  
[749] I accordingly find that the loss of past earning capacity arising from the  
inability to pursue the implementation of the dispatch division of the Sai Trucking  
Venture before trial is approximately $348,000.  
3) Assessment of Total Past Earning Capacity Loss from January 31,  
2009 to Date of Trial  
[750] I have concluded that the plaintiffs have collectively suffered a past loss of  
income earning capacity relating solely to the inability to continue their team driving  
business of $690,000 from January 31, 2009 to the commencement of this trial as a  
consequence of Volvo’s negligence in causing the collision.  
[751] I have also concluded that the plaintiffs have collectively suffered an  
additional loss of income earning capacity of $348,000 in the period from January  
 
Hans v. Volvo Trucks North America Inc.  
Page 171  
2010 to the date of trial as a consequence of their inability to implement the dispatch  
division of the Sai Trucking Venture. The total collective loss of past earning capacity  
is accordingly $1,038,000.  
[752] From that total amount, however, six years of past income loss at $49,250  
($295,500), otherwise attributable to Mrs. Hansshare of income as a team driver  
must be deducted to preclude double recovery because under the Sai Trucking  
Venture she would be working as a manager/dispatcher rather than as a driver.  
[753] In result, I find that, subject to deduction of income earned by them during the  
period from the date of the collision to the date of trial or deduction arising from a  
proven failure to mitigate their losses, the plaintiffs have suffered a collective loss of  
past earning capacity of $742,500.  
4) Deductions from Assessment of Total Past Earning Capacity Loss  
because of Income Earned  
[754] The evidence establishes that Mr. and Mrs. Hans worked by driving Mr. Hans’  
brother’s truck primarily on relatively short haul routes to Washington and California  
for about two years between the fall of 2009 and October 4, 2011, before Mr. Hans  
made his first suicide attempt. Mr. Hans has not worked since then but has received  
CPP disability benefits.  
[755] Pay statements provided by Yanke satisfy me that in 2009 before the collision  
Mr. and Mrs. Hans earned gross revenue of approximately $10,000.  
[756] Mr. Hans’ income tax return for 2009 records gross “business income” in that  
calendar year of $18,300 and net income of $10,208. Mrs. Hans’ tax return for 2009  
records income from employment of $3,384 and net business income of $5,000.  
[757] Neither of the plaintiffs was cross-examined concerning the extent to which  
the 2009 income was earned from Yanke or from their work for Mr. Hans’ brother.  
Doing the best I can from the financial documents in evidence and knowing that  
expenses incurred by the plaintiffs in 2009 would be largely attributable to work done  
while driving their own truck for Yanke, I find that $15,000 should be deducted from  
 
Hans v. Volvo Trucks North America Inc.  
Page 172  
the plaintiffs past loss of earning capacity award for the year 2009 with one-half of  
that amount attributed to each plaintiff.  
[758] The 2010 income tax return filed by Mr. Hans records gross business income  
of $30,000 and net business income of $21,394. The 2010 return filed by Mrs. Hans  
records gross business income of $25,000 and net business income of $19,262.50.  
[759] In both cases deductions from gross business income were for meals and  
entertainment of the plaintiffs as long haul truck drivers. Again, neither plaintiff was  
cross-examined on those returns or the recorded expenses. Based on the  
documents in evidence, I find that $42,000 should be deducted from the plaintiffs  
past loss of earning capacity award for the year 2010 with $21,000 attributed to each  
plaintiff.  
[760] The 2011 income tax returns filed by Mr. and Mrs. Hans record gross  
business income of $107,225 and net business income of $36,873 with 60% of that  
reported by Mr. Hans and 40% by Mrs. Hans. The expenses deducted from that  
gross business income include approximately $13,000 in accounting fees, $3,500 for  
rent, $3,964 for advertising and $6,570 for bad debts. Notwithstanding there was no  
cross-examination of either plaintiff on those deductions, I am satisfied that in the  
circumstances of the work they were doing without their own vehicle, I do not  
consider it appropriate to deduct those amounts from the plaintiffs’ income in 2011  
and will therefore add them back to the income earned by the plaintiffs in 2011.  
[761] In result, I have determined that $64,000 should be deducted from the  
plaintiff’s past loss of earning capacity award for the year 2011.  
[762] Since Mr. Hans was not employed after October 5, 2011, I attribute $24,000  
of those earnings (based upon 50% of 9 months pro-rated earnings) to Mr. Hans and  
the balance of $40,000 to Mrs. Hans.  
[763] As recorded earlier in this judgment, after ceasing work as a commercial truck  
driver in January of 2012, when Mr. Hans was released from hospital, Mrs. Hans  
earned income from numerous sources detailed in para. 188 of these reasons.  
Hans v. Volvo Trucks North America Inc.  
Page 173  
[764] Mrs. Hansincome tax returns for 2012, 2013 and 2014 respectively report  
total income of $12,312 ($3,964 from WCB); $22,366 (all from WCB) and $47,996  
($37,699 from WCB), totaling income of $82,674.  
[765] Although the plaintiffs did not adduce documentary evidence concerning  
income received by Mrs. Hans in 2015, her evidence that she earned $25 per hour  
for a 40 hour week from January 15, 2015 until June of that year allows me to  
assume that for 21 weeks until the end of May she would have earned $21,000 that  
should be deducted from her past loss of earnings capacity award.  
[766] Counsel for the plaintiffs agrees that all of those amounts (including all of the  
WCB payments) should be deducted from Mrs. Hanspast loss of earnings capacity  
award.  
[767] I was not, however, provided with details of the extent of any benefits  
received by Mrs. Hans arising from her pregnancy nor any argument related to the  
deductibility of any such compensation or concerning any attribution of income for  
purposes of deductibility.  
[768] If counsel are unable to agree upon the amounts of income associated with  
Mrs. Hansmaternity leave and what, if any, amount should be deducted from her  
past loss of earning capacity award, they have liberty to both supply the necessary  
information and make submissions with respect to deductibility.  
[769] Mr. Hans’ income tax returns for 2012, 2013 and 2014 respectively report  
total income of $8,738, $8,738 and $9,610, with all income attributable to CPP  
Disability Benefit payments.  
[770] Although counsel made no submission on the issue of the deductibility of  
those payments from Mr. Hans’ past loss of income earning capacity award, I am  
satisfied that they are not deductible. See: Sarvanis v. Canada, 2002 SCC 28 at  
para. 33; Maillet v. Rosenau, 2006 BCSC 10 at paras. 85-93; and Kean v. Porter,  
2008 BCSC 1594 at paras. 102-111.  
Hans v. Volvo Trucks North America Inc.  
Page 174  
5) Summary of Deductions  
[771] Subject to any further adjustments that may be necessary with respect to any  
compensation arising from Mrs. Hans’ pregnancy or from Volvo’s mitigation  
submissions, I find that after application of the deductions necessary to account for  
compensation received by the plaintiffs since the date of the collision the plaintiffs  
are collectively entitled to an award of $517,826 due to their past loss of earning  
capacity caused by Volvo’s negligence.  
[772] That amount is calculated as follows:  
Total collective loss of past income earning capacity:  
Less:  
$742,500  
(1) compensation received by Mr. Hans from  
2009 to 2011  
$52,500  
(2) compensation received by Mrs. Hans from  
2009 to 2015  
$172,174*  
* subject to possible maternity leave deductions  
Total: $517,826  
[773] Individual attribution of that loss between the plaintiffs, made necessary for  
income tax deduction purposes (at rates and in amounts to be later determined), is  
$318,750 (one half of $742,500 less $52,500) to Mr. Hans and $199,076 (one half of  
$742,500 less $172,174) to Mrs. Hans.  
[774] If, contrary to the assessments I have made with respect to the likelihood of  
success of the Sai Trucking Venture, no past loss of earning capacity was attributed  
to the inability to implement that venture, the plaintiffs’ collective past loss of earning  
capacity would be $690,000 (based upon $345,000 each as team drivers), less the  
income earned by each of them prior to trial. In those circumstances, the past loss of  
income earning capacity award to Mr. Hans would be $292,500 and to Mrs. Hans it  
would be $172,826.  
 
Hans v. Volvo Trucks North America Inc.  
Page 175  
6) Did the Plaintiffs Fail to Mitigate their Past Earning Capacity  
Losses?  
[775] Volvo submits that the plaintiffs failed to mitigate their losses of income  
earning capacity by failing to take reasonable steps that were open to them to earn  
income.  
[776] Volvo submits that even if Mr. Hans was disabled from driving:  
1) the plaintiffs ought to have either accepted their Truck after it had been  
repaired or should have traded it in on another vehicle, and, in either case,  
ought to have hired a driver to operate the vehicle; and  
2) Mrs. Hans ought to have commenced work as a dispatcher out of the  
plaintiffs’ home and implemented the Sai Trucking Venture using owner-  
operated trucks.  
[777] In making those submissions Volvo asserted that the failure to take either or  
both of those steps should be taken as proof that the plaintiffs either never had any  
intention to implement the Sai Trucking Venture or entirely failed in their duty to  
mitigate their damages.  
[778] Volvo further asserted that abandoning the Truck after it was repaired, rather  
than continuing to operate it or trading it in for a different vehicle, was not only  
unreasonable, but led to financial difficulties which together with other factors  
unrelated to the Accident resulted in Mr. Hans developing the severe major  
depressive disorder discussed in the medical legal report of Dr. Solomons.  
[779] I have previously discussed Volvo’s submission that Mr. Hans’ psychiatric  
injuries were not caused by the collision. I have rejected those submissions,  
including Dr. Solomonsopinions that are inconsistent with those of the psychiatrists  
whose opinions I have accepted.  
[780] That leaves for consideration whether Volvo has established that the  
abandonment of the Truck after it was repaired, the failure to trade it in on another  
 
Hans v. Volvo Trucks North America Inc.  
Page 176  
vehicle to be operated by a hired driver, and/or the failure of Mrs. Hans to implement  
the Sai Trucking Venture herself in the wake of the collision, were unreasonable to  
the extent that individually or collectively they constitute a failure to mitigate the  
losses caused by Volvo’s negligence.  
[781] The burden of proving an alleged failure to mitigate is on the defendant. See:  
Red Deer College v. Michaels, [1976] 2 S.C.R. 324.  
[782] That burden applies also to proof of whether it was unreasonable for an  
injured plaintiff to not take the steps that the defendant asserts ought to have been  
taken in mitigation of the loss suffered. See: Janiak v. Ippolito, [1985] 1 S.C.R. 146  
at paras. 32 to 35.  
a) Abandonment” of the Truck or failure to trade it in  
[783] Volvo submits that the plaintiffs have failed to provide an adequate  
explanation as to why they did either not re-take possession of the Truck after it was  
repaired and available for pick up in Manitoba in May of 2009 or trade it in on  
another vehicle.  
[784] The plaintiffs testified that when they learned that repairs had been completed  
they remained concerned about the cause of the collision and did not trust that a  
similar event would not occur again. For the same reason they were not, in good  
conscience, prepared to sell the Truck to a third party or trade it in when they did not  
know what had caused the collision.  
[785] While those reasons may, at first blush, seem somewhat unreasonable, when  
looked at through the lens of what had transpired between February and May of  
2009, the plaintiffs concerns were, in my opinion, reasonable.  
[786] The collision had been a terrifying one from which Mr. Hans was suffering  
acutely from the effects of PTSD.  
 
Hans v. Volvo Trucks North America Inc.  
Page 177  
[787] Mr. Hans’ employment had been terminated by Yanke and the plaintiffs had  
been entirely excluded by Yanke and Volvo from participation in the investigation of  
the cause of the collision.  
[788] All physical evidence related to the cause of the electrical failure had been  
destroyed by Yanke and Volvo.  
[789] They had been denied access to the whole of Mr. Hewitt’s report.  
[790] Neither Volvo nor Volvo Financial Services had answered Mrs. Hans’ phone  
calls.  
[791] They fairly believed that the only information which had been provided to  
them, that being that the cause of the failure was a “loose nut” was an incomplete  
explanation, which did not inform them of the risks associated with re-taking  
possession of the Truck. They had legitimate ongoing safety concerns  
[792] When Yanke advised Mr. and Mrs. Hans that the Truck was ready to be  
picked up they still had no complete answers to their inquiries concerning the cause  
of the electrical failure or concerning Yanke’s negotiations with Volvo.  
[793] At the heart of Volvo’s submission that the plaintiffs ought to have re-taken  
possession of the Truck or traded it in is the premise that the plaintiffs ought to have  
trusted Yanke and Volvo that whatever undisclosed repairs undertaken, they had  
been effective to remove all of the plaintiffs’ causes for concern.  
[794] Volvo did not adduce any evidence that any such assurances were ever  
given.  
[795] In all of the circumstances, I find that Volvo has not proven that it was  
unreasonable for the plaintiffs to not re-take possession of the Truck, nor, given their  
unaddressed concerns, was it unreasonable for them not to trade the Truck in on  
another vehicle.  
Hans v. Volvo Trucks North America Inc.  
b) Failure to hire a driver to replace Mr. Hans’ income  
Page 178  
[796] In part, the answer to Volvo’s submission that the plaintiffs ought to have  
hired a driver to replace Mr. Hans to mitigate their losses is dependent on the  
assertion that the plaintiffs ought to have re-taken possession of the Truck.  
[797] To the extent, however, that Volvo submits that the plaintiffs were obliged to  
hire a new driver to replace Mr. Hans’ inability to continue driving, that submission  
ignores that it is Mr. Hans’ loss of capacity that was caused by Volvo’s negligence.  
Replacement of Mr. Hans’ ability to earn income by using another driver would not  
eliminate Mr. Hans’ loss, it would only quantify a replacement cost that would be  
incurred by the plaintiffs as a team.  
[798] In that regard, I have found that evidence establishes that the average annual  
income earned by each of Mr. and Mrs. Hans from their trucking business in 2007  
and 2008 was $49,250. The evidence further establishes that Parmjit Hans earns  
$45,000 as an employed truck driver and that in his second report Mr. Munton cited  
industry sources as stating that a truck driver would usually be paid in the range of  
$50,000 per year.  
[799] For all of those reasons I do not accede to Volvo’s submission that the  
plaintiffs failed to reasonably mitigate their damages by hiring a substitute driver to  
replace Mr. Hansloss of earning capacity.  
c) Failure of Mrs. Hans to work as a dispatcher from her home  
[800] I also do not accept Volvo’s submission that Mrs. Hans’ failure to work as a  
dispatcher from her home to implement the plaintiffs’ Sai Trucking Venture  
constituted an unreasonable failure to mitigate the plaintiffs’ losses of earning  
capacity.  
   
Hans v. Volvo Trucks North America Inc.  
Page 179  
[801] I say that because:  
1) Mrs. Hans attempted to have both plaintiffs mitigate their losses by pressuring  
Mr. Hans to “get out of his funk” by starting to drive commercially again in the  
fall of 2009 notwithstanding the effects of his PTSD symptoms.  
2) For almost two years Mr. and Mrs. Hans did, at their own personal risk,  
mitigate their losses by driving commercially until Mr. Hans’ first suicide  
attempt.  
3) During that period and even with Mr. Hans’ worsening psychiatric condition,  
Mrs. Hans undertook more of the driving than she ought to have.  
4) After Mr. Hans’ first suicide attempt in October of 2011, Mrs. Hans continued  
to drive commercially to earn income while Mr. Hans was hospitalized.  
5) When Mr. Hans could no longer drive at all and required virtually constant  
supervision by Mrs. Hans or those whom she could enlist, Mrs. Hans again  
went to work as a driving instructor. She then took an interpreters course and  
worked as an interpreter. She drove a bus part time for a blueberry farm and  
for a school. She also worked for the CRA, notwithstanding she was receiving  
WCB compensation for a work related accident. When Mrs. Hans recovered  
from her WCB claim, she went to work full time as a dispatcher for a flat-bed  
trucking firm.  
[802] All of those efforts establish that Mrs. Hans has been a devoted wife and  
mother, who has done what she could to ameliorate the damages caused by Volvo’s  
negligence and the harm done not only to Mr. Hanswell-being, but also their co-  
dependent economic interests. Her efforts at mitigation have not only been  
reasonable but in many ways remarkable.  
[803] I also find that the suggestion that the plaintiffs had no intention to start the  
Sai Trucking Venture because Mrs. Hans did not start dispatching from her own  
home with other owner-operators, is without substance. I say that because:  
Hans v. Volvo Trucks North America Inc.  
Page 180  
1) The submission fails to recognize Mrs. Hans’ many selfless efforts to mitigate  
the plaintiffs’ losses including undertaking work as a dispatcher when able to  
do so.  
2) More directly to the point, the submission wholly ignores the importance of the  
unique talents to be brought to the Sai trucking Venture by each of the  
plaintiffs as equal members of a team.  
[804] I accordingly find that Volvo has not proven that the plaintiffs failed to mitigate  
their past losses of earning capacity suffered by them as a consequence of the  
collision.  
G.  
Future Loss of Earning Capacity  
[805] In addressing issues of past loss of earning capacity I have discussed in  
detail the evidence concerning the plaintiffs’ average income in the years before the  
collision. I have found that in the years 2007 and 2008 the evidence establishes that  
the plaintiffs’ trucking operations earned them an average of $98,500 per year as a  
team which equates to $49,250 per year of income for each of the plaintiffs.  
[806] I further found that income of $49,250 per year would be an appropriate  
amount upon which to base Mr. Hans’ personal earning potential from the date of  
the collision until trial either as a part of an ongoing team driver operation with  
Mrs. Hans or as income from his sole participation as a driver in the “trucking  
division” of the contemplated Sai Trucking Venture.  
[807] I also discussed in detail the prospects for the success of the Sai Trucking  
Venture. In doing so I concluded that there was a real and substantial possibility that  
the Sai Trucking Venture would have been implemented within one year of the  
collision as planned. I also, however, found that the plaintiffsgoals of operating one  
“company” truck (operated by Mr. Hans) and five owner-operated trucks with  
Mrs. Hans as the manager/dispatcher of the fleet would more likely be achieved in  
six to eight years, rather than five.  
 
Hans v. Volvo Trucks North America Inc.  
Page 181  
[808] The evidence as a whole has also convinced me that the revenue projections  
made by Mr. Munton for the “dispatch division” of the Sai Trucking Venture were  
overly optimistic.  
[809] I concluded that gross revenue of approximately $300,000 per year per  
owner-operator escalating by approximately 10% over five years from start-up would  
not likely be attained and was satisfied that a reduction of that projected income by  
35% would reflect a more likely level of success for the dispatch division of the Sai  
Trucking Venture in the six years from January 2010 to the beginning of this trial.  
[810] I further concluded that assessment of the pre-trial likelihood of success  
based on likely attainable projected revenue had to be subjected to further reduction  
arising from the possibility that the Sai Trucking Venture could fail or be abandoned  
in whole or in part because of lack of revenue or ability to attract sufficient owner-  
operators in favour of a return by Mrs. Hans to team driving.  
[811] I assessed the likelihood of those negative contingencies at 20% of my  
assessment of likely attainable projected revenue from the ‘dispatch division’ of the  
Sai Trucking Venture.  
[812] Those findings and my assessment of the likelihood of success of the Sai  
Trucking Venture with respect to the plaintiffs’ past loss of earning capacity are also  
applicable to my assessment of the plaintiffs’ future loss of income earning capacity.  
[813] In assessing the plaintiffsfuture loss of earning capacity arising from Volvo’s  
negligence I will again first assess the future loss of earning capacity from the  
“trucking division” of the Sai Trucking Venture. I will next assess the loss of earning  
capacity from the plaintiffs’ inability to implement a business based upon the  
expanded fleet of owner-operators from which to earn income as part of its “dispatch  
division”. I will then assess the total loss of earning capacity from both divisions and  
also consider deductions which must be made to those losses because of  
Mrs. Hans’ ability to mitigate those losses.  
Hans v. Volvo Trucks North America Inc.  
Page 182  
1) Loss of Future Income Earning Capacity from the “Trucking  
Division” of the Sai Trucking Venture  
[814] The evidence I have reviewed in detail concerning Mr. and Mrs. Hansincome  
from their team driving efforts in 2007 and 2008 convinces me that in assessing the  
future loss of income that Mr. Hans will suffer because of his inability to drive  
commercially that loss should be based upon an earning capacity of $49,250 per  
year.  
[815] Based upon that yearly income loss from the date of this trial until his 65th  
birthday, Mr. Hans’ future loss of income earning capacity is $1,231,250.  
[816] The net present value of the loss of that income stream is approximately  
$985,000.  
[817] I see no justifiable reason to discount that award for negative contingencies. I  
say that because in assessing that amount I have not provided for any increases in  
Mr. Hans’ income earning capacity likely to be gained over 25 years of experience  
and effort. I have also projected his income only to age 65 when there is evidence  
before me that long haul truck drivers (the witness Gurnam Singh Hans is still  
working as such a driver at age 67) can and do work past age 65. Any negative  
contingencies would accordingly, in my view, be set off by positive ones.  
[818] I must also note that my assessment of Mr. Hans’ loss of future earning  
capacity from the Sai Trucking Venture would be the same if that venture was never  
implemented and Mr. Hans had instead continued to work as a team driver with  
Mrs. Hans.  
[819] In such circumstances each would have suffered a loss of future income  
earning capacity of $985,000 subject, however, to Mrs. Hansability to mitigate that  
loss from alternate income sources as I will later discuss.  
 
Hans v. Volvo Trucks North America Inc.  
Page 183  
2) Loss of Future Income Earning Capacity from the “Dispatch  
Division” of the Sai Trucking Venture  
[820] In his second report, as recorded in para. 712, Mr. Munton projected income  
for the “dispatch division” of the Sai Trucking Venture of: $139,060 in year 4 and  
$184,913 in year 5 of its operations.  
[821] In assessing the plaintiffs’ past loss of earning capacity due to their inability to  
pursue the Sai Trucking Venture prior to trial, I did not include the projected income  
of $184,913 in year 5 of operations due to my assessment as a negative  
contingency that it would take six to eight years to reach that income projected for in  
year 5.  
[822] Based on my assessment of that contingency, the income projections for year  
5 would more likely have been reached in 2018. For that reason, the income  
projections that should be used for the assessment of the plaintiffs’ future loss of  
earning capacity for 2016 and 2017 are approximately $139,000 per year and for the  
23 years from 2018, until Mr. Hans reaches the age of 65, approximately $185,000  
per year.  
[823] Arithmetically those projections would result in lost income from the “dispatch  
division” of the Sai Trucking Venture of $4,533,000 from the date of trial until  
Mr. Hans reaches age 65 without there being any increases in income in the years  
after 2018.  
[824] Applying the same negative contingency of 35% to those projections, due to  
my assessment of a more likely level of the future revenue success of the dispatch  
division of the Sai Trucking Venture that I used in assessing the plaintiffs past loss of  
earning capacity, Mr. Munton’s projections for future loss of earning capacity  
(without any earnings increases) would be reduced by $1,586,550 to $2,946,450.  
[825] Applying a further negative contingency of 20% to those revised projections,  
as I did with respect to my assessment of past earning capacity to account for the  
possibility that the Sai Trucking Venture could fail or be abandoned in whole or in  
 
Hans v. Volvo Trucks North America Inc.  
Page 184  
part for the reasons previously addressed which are also applicable to the post-trial  
prospects for the success of the Sai Trucking Venture, results in a further reduction  
of projected future earnings from the “dispatch division” of $2,946,450 by $589,290  
to $2,357,160.  
[826] The net present value of that amount is approximately $1,900,000 collectively  
lost by Mr. and Mrs. Hans as future income capacity from the “dispatch division” of  
the Sai Trucking Venture.  
3) Total Loss of Future Income Earning Capacity  
[827] I find that the total collective loss of income earning capacity suffered by  
Mr. and Mrs. Hans as a consequence of the collision and their inability to implement  
and operate the Sai Trucking Venture as planned is $985,000 from the “trucking  
division” plus $1,900,000 from its “dispatch division” resulting in a total collective loss  
of future earning capacity of $2,885,000.  
4) Allocation of Loss of Future Income Earning Capacity  
[828] Because the plaintiffs adopted a team based approach to the assessment of  
their loss of earning capacity and because that approach is supported by the  
evidence and the authorities, to which I have referred, I have applied that approach  
in determining their collective losses.  
[829] Having said that I am, however, also satisfied that the circumstances of this  
case require that the award for loss of future income earning capacity also be  
allocated as between the plaintiffs.  
[830] I say that because of the disparate abilities of Mr. and Mrs. Hans to mitigate  
the losses they have suffered. I also believe that it is necessary and appropriate to  
do so in the event that I may be determined to have erred in applying the collective  
approach adopted in Everett and Meyer.  
[831] As I have previously stated, the evidence establishes that Mr. Hans would  
have suffered the same personal loss of future income earning capacity that I have  
   
Hans v. Volvo Trucks North America Inc.  
Page 185  
assessed ($985,000) as a wholly disabled truck driver whether or not the  
implementation and operation of the Sai Trucking Venture was a real and substantial  
possibility.  
[832] Mrs. Hans would also have suffered an equal loss of $985,000 without the Sai  
Trucking Venture because she would likely have continued to drive with Mr. Hans  
until age 65 as a team driver with him.  
[833] Mrs. Hans’ loss would, however, have been subject to reduction because of  
her continued ability to earn income from other sources as she has during the years  
since the collision before trial. Indeed, given the award I have made for Mr. Hans’  
future care and supervision, Mrs. Hans’ earning ability would not be as constrained  
as it has been by her past need to adapt her work schedules to accommodate  
Mr. Hans’ needs.  
[834] The work for which Mrs. Hans is most obviously suited is that of a dispatcher  
for a flat-bed trucking company, the role she anticipated undertaking with the Sai  
Trucking Venture as an entrepreneur, rather than as an employee.  
[835] The evidence establishes that Mrs. Hans is capable of earning $25 per hour  
for a 40 hour week doing dispatch work. Based upon a 48 week work year (allowing  
reasonable time off for vacations and statutory holidays) she is capable of earning  
$48,000 per year.  
[836] Mrs. Hans’ present earning capacity over 25 years is therefore approximately  
$1,200,000 with a net present value of approximately $960,000.  
[837] If that ongoing income capability were to be deducted from a loss of future  
income capacity award of $985,000, as a part of a driving team with Mr. Hans, the  
award for Mrs. Hans loss of future earning capacity would be in the range of  
$25,000.  
[838] In the circumstances of this case, however, I find that the $960,000 present  
value of Mrs. Hans’ future income earning capacity working as an employed  
Hans v. Volvo Trucks North America Inc.  
Page 186  
dispatcher should be deducted from the future income earning capacity award  
($1,900,000) attributable to the “dispatch division” of the Sai Trucking Venture.  
[839] That deduction of Mrs. Hans’ present income earning capacity of $960,000  
results in a collective net loss of future earning capacity from the “dispatch division”  
of the Sai Trucking Venture of approximately $940,000 shared equally ($470,000) by  
the plaintiffs to reflect the losses suffered by both.  
[840] In result, I find that the plaintiffs are collectively entitled to a loss of future  
earning capacity award of $1,925,000 (calculated as $2,885,000 from both divisions  
less $960,000 for Mrs. Hans’s proven income earning capacity).  
[841] To the extent it may be necessary to do so I allocate $1,455,000 of that award  
to Mr. Hans comprised of:  
1) $985,000 for his loss of earning capacity as a wholly disabled driver whether  
as a part of the Sai Trucking Venture or not; and  
2) $470,000 for his loss of one-half of the loss of earning capacity attributable to  
the inability to pursue the Sai trucking Venture.  
[842] I allocate $470,000 of the collective award of $1,925,000 for loss of earning  
capacity to Mrs. Hans attributable to her inability to pursue the Sai Trucking Venture.  
[843] If, contrary to the assessments I have made with respect to the likelihood of  
success of the Sai Trucking Venture, no future income earning capacity was  
attributed to the inability to implement that venture, the plaintiffs’ collective loss of  
future earning capacity would be $1,970,000 (based upon $985,000 lost by each as  
a team driver) less $960,000 attributable to Mrs. Hanspresent income earning  
capacity. Their loss of future earning capacity in those circumstances would be  
attributed $985,000 to Mr. Hans and $25,000 to Mrs. Hans.  
Hans v. Volvo Trucks North America Inc.  
X. SUMMARY OF DAMAGES AWARDS  
Page 187  
[844] In summary, I have found that the plaintiffs are entitled to the following  
damages suffered as a consequence of Volvo’s negligence in causing the collision  
on January 31, 2009:  
1.  
Non-pecuniary damages:  
a) Mrs. Hans  
$15,000  
b) Mr. Hans  
$265,000  
2.  
3.  
“In-trust” award for Mrs. Hans  
$165,000  
Cost of Mr. HansPast Care (payable to the  
Province under the Health Care Costs  
Recovery Act)  
$198,868.75  
4.  
5.  
6.  
Cost of Mr. Hans’ Future Care:  
a) Medications  
$75,000  
b) Rehabilitation Therapies  
c) Care and Supervision  
$22,000  
$1,684,000  
Past loss of Income Earning Capacity:  
a) Mr. Hans  
$318,750  
$199,076*  
b) Mrs. Hans  
*subject to possible maternity leave deductions  
Future Loss of Earning Capacity:  
a) Mr. Hans  
$1,455,000  
$470,000  
b) Mrs. Hans  
TOTAL $4,867,694.75  
 
Hans v. Volvo Trucks North America Inc.  
XI. ISSUES REMAINING TO BE DETERMINED  
Page 188  
[845] Issues remain to be determined in this case that cannot be decided without  
further submissions by the parties.  
[846] Those issues include but may not be limited to:  
1) Should benefits received by Mrs. Hans while on maternity leave be deducted  
from her award for past loss of earning capacity?  
2) Should any income that would likely have been earned by Mrs. Hans as a  
dispatcher while on maternity leave be deducted from her award for past loss  
of earning capacity?  
3) What taxes are to be deducted from the awards for past loss of earning  
capacity?  
4) Are there any other tax considerations that should be addressed?  
5) What impact does the plaintiffs’ “BC Ferries Settlementwith Yanke have on  
the damages awarded against Volvo?  
6) Should Mr. Hans be awarded a management fee?  
7) What award of costs should be made?  
[847] If the parties are unable to reach agreement on any of these issues they may  
make arrangements through the registry for further submissions.  
Mr. Justice Davies”  
 


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