IN
THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Ward v. Klaus, |
| 2010 BCSC 1211 |
Date: 20100827
Docket: M034910
Registry:
Vancouver
Between:
Jodie Irene Ward
Plaintiff
And
Adolf Klaus
Defendant
Before:
The Honourable Mr. Justice Rice
Reasons for Judgment
Counsel for the Plaintiff: | Valmon |
Counsel for the Defendant: | W. |
Place and Date of Trial: | Vancouver, |
Place and Date of Judgment: | Vancouver, |
The plaintiffs pain and suffering. 3
Dr. Gouws, specialist in occupational
medicine. 12
LOSS OF FUTURE EARNING CAPACITY. 18
EVIDENCE
Introduction
[1]
The plaintiff was injured in a motor vehicle accident on February 4,
2002, at the parking lot of Evans Elementary School in Chilliwack, British
Columbia. The plaintiff was driving a 1991 Pontiac Sunbird when it was hit
from behind by a 1999 Buick Park Avenue driven by the defendant. The defendant
admits liability and claims no contributory negligence against the plaintiff.
[2]
The plaintiff alleges several injuries to herself as a result of the
collision, almost all of which have long since healed. She continues to suffer
pain in her neck and headache pain, along with a continual low-grade depression.
Worst of all she suffers excruciating migraine-type headaches coming on two or
three times per week and lasting about four hours, during which the pain
completely overcomes her physical capacity to do any kind of work or to enjoy
her life.
[3]
The plaintiff has been examined by her family doctor, and by neurologists,
Dr. Tanha and Dr. Robinson, along with a host of others. She has been treated,
but not with positive results. The consensus amongst her physicians is that her
condition is unlikely to improve much. Where there seems to be some
disagreement, is with respect to mitigation. On one hand, it is not challenged
that her periodic migraine-type headaches leave her practically helpless. That
is not quite so with respect to the daily low-grade pain and depression that
she feels, and she has proven in the past that she is able to work at certain
jobs with lighter, physical demands.
The plaintiffs pain and suffering
[4]
She has taken to the use of a neurostimulator, a device similar to a
pace maker, which is surgically implanted with electrodes to stimulate the
nerves. The device has reduced her pain by about 20%; not what her physicians were
hoping for (over 30%) but enough for the plaintiff to say that it takes the
edge off.
[5]
The plaintiff was employed at the time of the accident as a part-time
cashier at Safeway. She then served as a waitress at the Pantry Restaurant in
Chilliwack. Finally, she returned to Safeway to work as a bakers assistant.
In 2005, she began to collect a disability pension of $950 per month. She has
not worked outside of the home since that time.
[6]
The plaintiff testified that fairly soon after the accident she began to
feel headaches and neck pain. Consulting her family physician, Dr. Harder, she
was referred for physiotherapy in Sardis, B.C. Not satisfied with the progress
of the physiotherapy, she discontinued not long after, and in May 2002 she
switched general practitioners, hiring Dr. Welsh. He has served as her general
practitioner ever since, and has been thoroughly briefed by her on the progress
and challenges of this lengthy scourge of pain. Dr. Welsh referred her to a
neurologist, Dr. Tanha, in August 2002. She saw him about five times between
then and in January 2004. In November 2003, she was referred to Dr. Burnell,
an anaesthetist, who assessed her. He considered doing trigger point
injections, but ultimately thought there was no need for them. In February
2004, he referred the plaintiff to Dr. Robinson, another neurologist, who
advocated a multi-disciplinary treatment approach. The program ran for five
days but discontinued because the plaintiff had trouble regularly making the
1-1/2 hour drive from where she lived in Chilliwack.
[7]
The plaintiff said that by mid-2004, she was in despair over the fact
that so much had been tried without success. The physicians began to recommend
the use of narcotics which she welcomed because in her words again, it took
the edge off. It was not long before she became addicted.
[8]
The plaintiff saw a massage therapist on three occasions in December
2004 and January 2005. She says she quit that treatment because of the pain of
the massage. In April 2005, she saw a physiotherapist, Dr. Chu, on four
occasions. Dr. Chu recommended a hysterectomy in 2005 due to abnormal cell
growth observed in monitoring her condition. After the operation, the plaintiff
began to feel very severe head pain and discomfort from the surgery. Her
intake of morphine rose by three or four times.
[9]
In 2006, the plaintiff was assessed by a neurologist, chosen on behalf
of the defendant. Dr. Edneads, attributed part of her pain to her medications,
which to him seemed to be working counterproductively. He suggested attributed
some of her pain to the medication, suggesting that if she were to come off
some of them, her symptoms would improve.
[10]
In March and April 2006, at Dr. Welshs recommendation, she saw another
massage therapist for deep muscle massage, but she did not find that effective
either.
[11]
She fell back into narcotics again for a while, but managed again to quit.
[12]
The plaintiff underwent occupational therapy again beginning in February
2007. Her attending therapist, Ms. Mayfield, who testified, offered a variety
of suggestions to help Ms. Ward find a better quality of life and to orient
herself to that pursuit. For example, she found that her work effort was made
less difficult by keeping to a housekeeping schedule, by pacing her work around
the house with childcare; and by being more consistent and regular in her
exercise. She went to a kinesiologist for advice, and she learned relaxation
and deep breathing techniques. Other helpful suggestions included setting
aside times for leisure activities such as drawing, reading and crocheting;
experimenting with alternative pain management techniques such as taking hot
baths; hiring a housekeeper to do the heavy work; planning meal preparations;
and practising energy conservation and work management techniques. Ms.
Mayfield testified that her goals were to make Ms. Ward more independent in
home management, able to do basic yard work activities, and to feel comfortable
driving her children here and there.
[13]
In about April 2007, Dr. Bannerman and Ms. Mayfield advised the
plaintiff that a regime of exercise, medications and other measures were not
working as well as they had hoped. Dr. Bannerman told her that she was pain
focused. Ms. Mayfield also provided recommendations for Ms. Ward to engage in
walking, pool-based activities, and other activities to get her more developed
and to build up a routine to distract herself from her symptoms.
[14]
In January 2008, Dr. Welsh referred the plaintiff to see Dr. Gogal, an
ophthalmologist, to advise on pain in her eyes that had not resolved. The
plaintiff saw another ophthalmologist, Dr. Nesbitt, in July 2008, because of
trouble she claimed to have with double vision. There appears to be no report
from him or anyone else on any eye problems that she complained about. The
evidence does not clearly show these were the result of the accident, or the
headaches after the accident, and their severity in any event seems hardly more
than minor. I am not denying this claim, but the compensation due to the
plaintiff, based on the evidence, cannot be more than a very small portion of
the non-pecuniary damages.
[15]
In early February 2008, Ms. Ward saw another psychologist, Dr. Bubber,
who employed a cognitive behavioural approach to pain management. Ms. Wards
evidence is that she did not get a lot out of her subsequent visits to Dr.
Bubber. Dr. Bubber, like Ms. Mayfield, seemed to sense a less than full effort
at the exercises recommended, which had been expanded to include yoga and
pilates DVDs for home use, as recommended by another kinesiologist, Dr. Carne.
[16]
In May 2008, the plaintiff consulted Dr. Kumar, a neurosurgeon in
Regina, for an assessment on the suitability for neurostimulator implants. She
qualified and in September, at Regina Saskatchewan, a neurotransmitter was
implanted in the back of her neck. It had two leads and an external remote
that connected the wires under her skin. From September to mid-October 2008,
she had two more operations in Regina and two more temporary implants were
imbedded. In December 2008, two permanent implants were installed in the back
of her head in the same area as before. To deal with the pain of the
operation, she took more medication.
[17]
In January 2009, the plaintiff had permanent leads installed at the
front of her head.
[18]
The implant battery has to be recharged, usually once a week. She keeps
it on at all times other than when she is driving. She has a device that plugs
into an electrical outlet. It tells her if the battery needs to be recharged.
Sometimes it has to charge for up to four hours, but usually it takes an hour
or an hour and a half. When pain flares, she can increase the strength of the
current from the stimulator. Again, she does not see it as the answer. It
simply takes the edge off.
[19]
Ms. Ward says that it is hard for her to do too much exercise. She is
aware that exercise is always beneficial, and that it will help her keep her
weight down, and distract her from her pain. She says that she takes her dog
for walks, although not as often as she would like. She used to be an avid
runner before the accident, and says she is open to any kind of exercise. Her
favourite exercise now is water-running at a pool, although she has not done it
since December 2009 because her head hurts so much afterwards.
[20]
Ms. Wards weight currently is about 180 pounds. It has been much
higher, but as she now stands (at about 57) she could use further weight
reduction to enhance her health and self-confidence.
[21]
In her husbands view, the plaintiff is a much different person since
the accident. He testified that she is in bed much of the day and sometimes
spends entire weekends in the house, not doing much of anything. When she
takes drugs or the neurostimulator is up, she can do things such as make dinner
or play cards. If they visit friends, she will leave early, insisting that he
should stay. They do not play sports together like they used to or work in the
garden like they used to, or go camping with their family. She is forgetful
and easily distracted. Some of the things that she does, such as grocery
shopping, take a much longer time to complete than before. She has taken to
writing out lists to help her get things done.
[22]
Mr. Ward, the plaintiffs husband, was emotional in giving his
testimony, obviously in despair after so many failed attempts to cure or
alleviate his wifes pain.
[23]
Ms. Ward testified that she was unable to do a number of tasks that
ordinarily she would have done but for the pain. She hired her husbands
sister certain times at $12.00 per hour to assist in caring for the children.
She must take medication every day, setting her timer to ensure that she takes
her dosage at the right times. They represent a combination of painkillers,
sleeping pills, muscle relaxants and sedatives.
[24]
The plaintiff is able to prepare breakfast for her husband and sons as
well as pack lunches for them. She tends to the usual household chores of
cleaning, tidying up the various rooms, running the dishwasher, walking the dog,
etc. Dinner times and other matters tend to revolve around hockey when hockey
is in season. She seems to enjoy helping the boys get ready for games and
practices, and she attends their games as much as she can.
[25]
The plaintiff and her husband bought their current house in November
2002. They have improved it substantially by landscaping in the back yard and
building a playhouse for the boys. Mr. Ward did most of the work in the
evenings and on weekends. He had friends work for him in return for his services
to them. Ms. Ward has not been able to help him with any of this work. If she
had not been injured, according to her husband, she would have been right
there with him, and for the landscaping particularly. In that regard, there
are a number of jobs that Ms. Ward once did but cannot do any longer, she says,
because of the pain that it causes to her head. Examples include scrubbing the
tub and shower, changing bed sheets, mopping floors and vacuuming. Once she
did much gardening and planting of flowers, but she does no longer. Mr. Ward
assists her with her housework such as laundry, cooking and folding clothes.
He also does much of the shopping.
[26]
A videotape was tendered by the defendants as evidence to show the
plaintiff easily entering and exiting a car in early 2008. I am afraid I did
not gather very much from that video beyond what was disclosed otherwise in testimony.
The impression was that she appeared quite normal in her movements. There did
not seem to be any of the characteristics that we sometimes associate with
people suffering from headaches ─ stiffness and slowness of movement
─ but I give little weight to that evidence one way or the other.
Education and Employment
[27]
Ms. Ward moved to Abbotsford in 1991 when she was in Grade 12. She
dropped out of a number of her subjects there that year. While in high school
she worked as an attendant at a gym and also part-time on weekends refuelling
planes at Pitt Meadows Airport. She graduated finally in 1991 and for the next
two years she worked as a service station attendant at Super Save Gas. She
began training to become a pilot in 1992, but ceased that effort because of the
cost, she says. She says that she looked into joining the military and was
accepted for training. However, whether because of the cost or otherwise, it
is clear that long before the accident, Ms. Ward gave up this ambition, neither
pursuing it nor saying very much about it. There is no reliable evidence to
substantiate any claim for loss of opportunity to become a pilot.
[28]
When she had her children, the plaintiff took maternity leave for six
months and three months respectively, and after that worked part-time, perhaps
20 hours per week, she says.
[29]
In August 2001 she left White Spot and in November 2001, she was hired
as a part-time cashier at Safeway. She was working at Safeway at the time of
the accident and continued to work there until January 2003.
[30]
In September 2003, the plaintiff left Safeway and went to work at the
Pantry Restaurant in Chilliwack as a part-time waitress. She says she was
hoping to make more money there but did not want more shifts at the risk of
aggravating her injury, from which she was recovering.
[31]
The plaintiff recalled that she had to take time off because of her
headaches during this period, and recalled that she was taking too much medication
to properly attend to her work duties.
[32]
As a result of some incident at work involving an alleged failure to
wear a bow-tie, the plaintiff says she was dismissed from the Pantry. She says
that she did not immediately look for work. She elected to stay off because
she was in too much pain, particularly from headaches.
[33]
In September 2004, she went back to work part-time at the Safeway bakery
in Sardis, B.C. Work there was light duty, such as slicing bread, rolling buns
and assisting bakers. She liked the job, but the pain was too much, and she
left that job in December 2004. She has not worked outside of the home since then.
[34]
The following is a review of the plaintiffs employment earnings from 1991
through 2005:
YEAR | EMPLOYMENT | EI |
1991 | $25,076 | Nil |
1992 | $7,164 | $968 |
1993 | $4,523 | $197 |
1994 | $8,051 | Nil |
1995 | $7,454 | Nil |
1996 | $2,005 | $1,957 |
1997 | $3,317 | Nil |
1998 | $2,111 | Nil |
1999 | $4,862 | Nil |
2000 | $6,084 | Nil |
2001 | $4,090 | Nil |
2002 | $5,807 | Nil |
2003 | $6,234 | Nil |
2004 | $2,113 | $1,845 |
2005 | $84 |
|
[35]
The plaintiff has also been receiving Canada Pension Plan monthly
disability payments since 2006. Currently the amount is around $950 per
month. Her evidence is that those payments will continue indefinitely as long
as she cannot work. The availability of this pension could pose as a
disincentive.
EXPERT
EVIDENCE
[36]
None of the physicians disagree that consistent with the manner of the
collision the plaintiff has been suffering continual headaches that cause her
enormous pain. There are shades of difference in diagnosis as to the precise
forms of headache that afflict her, but none challenging the fact that she has
suffered this pain for so long.
[37]
Dr. Welsh aptly explained the plaintiff suffered strain to her cervical
and thoracic spine, resulting in significant on-going neck pain and headaches,
which have a migraneous component. It also exacerbated a pre-existing
depression, according to one physician, a psychiatrist, Dr. Smith.
[38]
Out of all of this, Dr. Welsh decided that the plaintiff suffers from chronic
pain. He said that it is therefore reasonable to conclude that her chronic
daily pain will continue and she will continue to experience significant
limitations in her day-to-day activities and quality of life.
[39]
Dr. Robinson stated clearly that after three years from the date of the
accident, she will continue to have headaches and neck pain for many years to
come. He doubted that she would become pain free and stated the possibility
that her current disability would remain indefinitely.
[40]
The plaintiffs resort to use of narcotics was futile and a harmful
measure, but not negligent. It was a reasonable decision on advice of her physicians
given her terrible state when nothing else would work. I do not attribute to
the plaintiff any negligence in these circumstances.
[41]
Dr. Smith, a defence neurological expert, suggested that tension type
headaches are without any known cause, and he suspected an underlying
psychiatric disorder. Dr. Edneads, a neurologist, took the view that the
plaintiff was suffering from medication induced headaches. Dr. Robinson did
not agree with that. His evidence was that the headaches were post-traumatic
headaches.
[42]
Dr. Robinson pointed out that there are no specific characteristics for
post-traumatic headaches. In his opinion, the plaintiff does not have migraine
headaches; however, she may develop migraines as her headaches worsen.
[43]
Dr. Robinsons opinion is that the neurostimulator has not been a
success. He characterises the improvement at 20%. Usually one expects to
reach a 30% improvement before saying that the use of the device is worthwhile.
Dr. Gouws, specialist in occupational medicine
[44]
Dr. Gouws tested the plaintiff and stated in his opinion that she made a
reliable effort during the assessment. He found that she was capable of only
light work demands and that she could not perform as a pilot; that she has lost
the capacity for many recreational activities; that she has lost the capacity
to do housekeeping functions at the level she was used to before the accident; that
she is totally disabled as a part-time cashier or bakers helper at Safeway; that
she is not capable of working competitively in any occupation for which she is
suited by training and experience; and even if she follows her treatment
recommendations, the level of recovery would be less than 50%.
Crystal Mayfield, OT
[45]
Ms. Mayfield stated that originally the goal was to have the plaintiff
return to work, although never to full-time work. Ms. Mayfields initial
impression was that the plaintiff was motivated to increase her activity and get
over her difficulty, although, the plaintiff did tend to use her subjective
pain as a guide to control or limit her activities. She described the
plaintiff as being passive and not very energetic or bubbly when she was on the
narcotic medications. She stated that as of April 2010, three hours per day
seemed to be her daily tolerance for activity. She stated her opinion that Ms.
Ward needed to be encouraged to use strategies to maximize her daily activities
in the best way possible.
Shawna Rutherford, OT
[46]
Ms. Rutherfords observations were similar to Ms. Mayfields.
[47]
Ms. Rutherford made a number of recommendations with respect to future
care, which are discussed below.
Dr. Smith,
Psychiatrist
[48]
Dr. Smith, a psychiatrist for the defence, assessed the plaintiff in
February 2010. He noted, It is in my opinion tragic that she was encouraged
to take time off work, as this appears to have a triggered a cycle of
unemployment. In his view, the plaintiff should have been encouraged to get
on with things in spite of the pain; not a pleasant alternative, but better than
one that seemed to be turning her into an invalid. He recommended that she
gradually reduce her anti-depressant medication under the supervision of a
psychiatrist and he had no doubt that returning to active employment would be a
benefit to the plaintiff.
Dr. Bubber, OT
[49]
Dr. Bubber, an occupational therapist, is of the view that Ms. Ward
seemed to be stuck on the focus of her own pain, and that she needed to move
beyond that focus.
Joseph Hohmann
[50]
Ms. Ward was assessed by Mr. Hohmann, a vocational consultant in October
2007. Mr. Hohmann said that according to Appendix D of his manual, the
plaintiff had been employed at skill levels in the range of C and D of his
Manual of Canadian Salary Levels, with a potential salary level of about $30,000
to $35,000 and that she might have had potential to advance to skill level B.
NON-PECUNIARY DAMAGES
[51]
The factors to be considered in assessing non-pecuniary damages are
stated in Stapley v. Hejslet, 2006 BCCA 34, at para. 46: the plaintiffs
age; the nature of the injury; the severity and duration of pain; the resulting
disability; the emotional suffering; impairment of family, marital and social
relationships; impairment of physical and mental abilities; loss of lifestyle;
and, finally, the plaintiffs stoicism. The amount should not depend only on
the seriousness of the injury, but on the ability to ameliorate the victims
condition.
[52]
In this case, counsel on both sides agree that this was a soft-tissue
injury to the neck resulting in continuing neck pain, and continuing generalized
moderate headaches with severe migraine headaches, occurring two or three times
per week. The pain during such migraine headaches is excruciating, and her
pain and suffering as a whole have affected very negatively almost every aspect
of her life. According to doctors recommendations, she has taken medications
that only partially help, and at one point led her to addiction to narcotics. She
has undergone surgeries to implant a neurostimulator which has only been
moderately successful at best as a means of alleviating the pain. The
consensus of the medical experts has been that the plaintiff has reached the
point of maximum medical improvement, and that the headaches and pain will
continue indefinitely.
[53]
At the same time, observing her demeanour as she gave evidence, as well
as seeing the videotape evidence shown in court, and considering her inability
to answer many questions on the basis that she could not remember, I am afraid
there is room for mild caution in accepting her testimony unreservedly. Her
frequent inability to recall answers to questions leads me to doubt the
reliability of her memory when giving testimony. By this, I do not mean to
resile from the impression that she was generally honest and truthful in
explaining the excruciating pain she had suffered. It is only in respect of a
few details, particularly her work capacity and motivation, that her evidence
was not completely satisfactory.
[54]
Plaintiffs counsel recommends an award for non-pecuniary loss at
between $160,000 – $190,000, referring to the following cases in support:
Delli Santi v. Pacific National Exhibition, 2000 BCSC
716;
Adamson v. Charity, 2007 BCSC 671;
Marois v. Pelech, 2007 BCSC 1969, affd 2009 BCCA 286;
and
Williamson v. Suna, 2009
BCSC 576.
[55]
The defendant recommends an award between $95,000 and $120,000, citing
the following cases:
·
Pham-Fraser v.
Smith, 2010 BCSC 322,
[2010] B.C.J. No. 438;
·
Gosselin v. Neal, 2010 BCSC 456, [2010] B.C.J. No. 610;
·
Prince-Wright v.
Copeman, 2005 BCSC 1306,
[2005] B.C.J. No. 1997;
·
Edwards v. Marsden, 2004 BCSC 590, [2004] B.C.J.
No. 870;
·
Knauf v. Chao, 2009 BCCA 605, [2009] B.C.J. No. 2612;
·
Adkens v. Hunter, 2003 BCSC 97, [2003] B.C.J. No. 462;
·
Gowryluk v. Unicity
Taxi Ltd., 2006 MBQB 211,
[2006] M.J. No. 353;
·
Prasad v. Sedivy, 2008 BCSC 443, [2008] B.C.J. No. 636; and
·
Holmes v. Hanna, 2001 BCSC 759, [2001] B.C.J. No. 1256.
[56]
The purpose of non-pecuniary damage awards is to compensate the
plaintiff for pain, suffering, loss of enjoyment of life and loss of
amenities: Jackson v. Lai, 2007 BCSC 1023 at para. 134. While each
award must be made with reference to the particular circumstances and facts of
the case, other cases may serve as a guide to assist the court in arriving at
an award that is just and fair to both parties: Kuskis v. Tin, 2008 BCSC
862 at para. 136.
[57]
Taking all of the foregoing into account, my view is that the
appropriate award for non-pecuniary loss is $150,000. In this amount I take
account of all aspects of general pain and suffering, including a reasonable
portion attributable to the effect of diminished capacity in her homemaking
role.
SPECIAL DAMAGES
[58]
The plaintiff claims $6,731.63 in special damages incurred as a result
of the accident. This amount includes medical professional services such
physiotherapist, psychologist, and massage, as well as prescription medication
costs. I find that these expenses were reasonably incurred in the course of
treating the plaintiffs injuries and I grant the claim accordingly.
PAST LOSS OF INCOME
[59]
The plaintiff is described by all who know her as once an active,
energetic wife and mother who worked part-time as a waitress and a cashier. I
have little doubt of that, but I do not, in view of the evidence before me,
accept that her motivation at any time was strongly aimed toward full-time
employment out of the home. She had never worked full-time before the
accident, or after the accident.
[60]
I do not accept the supposition that the plaintiff would have taken nine
months for retraining in any of the occupations suggested by Mr. Hohmann and
then gone on to earn much more than before.
[61]
The plaintiff had taken flying lessons years before the accident and at
one time had an ambition to become an airline pilot. However, I do not accept
that there were any active plans in existence at the time of the accident. She
had long since given up that ambition. Whatever she may have said about it
afterwards carried with it too little evidence of actual intention.
[62]
The plaintiff worked after the accident for more than two years on a
part-time basis without clear evidence that increasing pain afterwards made it
impossible. In my view, her decision not to continue to work or do anything to
increase her earning potential, was mainly the product of a lifestyle choice.
In other words, I do not accept the supposition that the plaintiff would have
become a full-time employee, or anything more than a part-time employee, but
for the accident. I do not accept that she would have pursued the upgrading
and skills that the expert economist, Mr. Carson, indicated to be available,
and which might have increased her income to between $30,000 and $35,000 per
year (a figure which her counsel argued to be valued at between $150,000 and
$175,000 in todays currency). Based on all of that, he suggested a pre-trial
loss of income at between $152,000 to $177,000. I cannot accept that at all.
[63]
The plaintiff is entitled to be compensated for her proven past wage
loss as supported by the evidence. At the time of the accident she was working
and historically had always worked in low-skilled part-time positions. Her
preferred interest was her devotion as a wife and mother. Part-time work
accommodated that value. At the time of the accident she was working at
Safeway averaging 12 to 16 hours of work per week at $8.60 per hour. In 2003
she obtained work at the Pantry Restaurant in Chilliwack as a waitress and
worked about three shifts per week for almost a year.
[64]
The plaintiff made family life her priority. She even put her job on
the line at certain times, such as when she was asked to work weekends and
evenings at the Pantry. She testified that she was dismissed for resisting
pressure to work at times when her husband would be home and she wanted to be
there with him.
[65]
The plaintiffs last day of work at the Pantry, November 29, 2003, was
followed by a period of no outside work until September 23, 2004.
[66]
The defendant points to the fact that the plaintiffs monthly income was
augmented by $950 per month as a Federal disability payment, which is
significantly greater than any wage she received while working, even if one
counts the tips that she has not reported. The defendant recommends a nominal
settlement at $5,000.00.
[67]
I agree with the defendant with respect to the plaintiffs record of
employment, that she only ever worked part-time, and that particularly with the
pension that she was receiving, there was no actual loss during that time. Disregarding
the pension, to which counsel for the defendant does not object, I find that
$6,000 per year for six years is the appropriate award for past wage loss in
this case for a total of $36,000. That sum is to be adjusted to reflect new
dollar value, and I leave that to counsel.
LOSS OF FUTURE EARNING CAPACITY
[68]
Brown and Golaiy (1985), 26
B.C.L.R. (3d) 353 (S.C.) is a precedent considered in assessing future loss. The
test is fourfold:
1. Has the
plaintiff been rendered less capable overall from earning income from all types
of employment?
2. Is the
plaintiff less marketable or attractive as an employee or potential employer?
3. Has the
plaintiff lost ability to take advantage of all job opportunities which might
otherwise have been open to him or her had he or she not been injured?
4.
Is the plaintiff less valuable to herself or herself as a person capable
of earning income in a competitive labour market?
[69]
The same caution that applies to past wage loss applies to future loss
of earning capacity. In my view, the capacity cannot simply be taken from
statistics on earning power of people having generally the same abilities as
the plaintiff without taking into account the peculiarities of the plaintiff.
The plaintiff in this case may possibly have had the ability to become a pilot
or some other worker much more highly paid than she was paid ever before in her
life; but the plaintiff cannot claim recompense for money that she never earned
or was not likely to earn. She never worked full-time out of the home in her
life. In my opinion, this must be taken into account also.
[70]
In Perren v. Lalari, 2010 BCCA 140, Garson J.A. held at ¶ 32:
A plaintiff must always prove
that there is a real and substantial possibility of a future event leading to
an income loss. If the plaintiff discharges the 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.
[Emphasis in original.]
[71]
In Perren, Garson J. also held at ¶ 30:
Having reviewed all of these cases, I
conclude that none of them are inconsistent with the basic principles
articulated in Athey v. Leonati, [1996] 3 S.C.R. 458, and Andrews v.
Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229. These principles
are:
1.
A future or hypothetical possibility will be taken into consideration as long
as it is a real and substantial possibility and not mere speculation [Athey
at para. 27], and
2. It is not
loss of earnings but, rather, loss of earning capacity for which compensation
must be made [Andrews at 251].
[72]
The defendant further submits that the plaintiff has failed to
prove as a substantial possibility that she intended to pursue any vocational
career, other than at the level of waitressing or working as a cashier at the
supermarket, and for more than half-time in any event. The
defendant relies on the following cases in support:
1. Morrow v. Outerbridge, 2009
BCSC 433, [2009] B.C.J. No. 640 (Morrow’");
2. Mori v. Weeks, 2001 BCSC 1094, [2001] B.C.J. No. 1688; and
3. Henderson v. Lodge. [1994]
B.C.J. No. 126 (S.C): affd [1996] B.C.J. No. 573 (C.A.).
[73]
I agree that the plaintiff has failed to prove as a substantial possibility
that she intended ever to pursue any career other than part-time waitressing or
working as a cashier at Safeway. I find further that the plaintiff was
unlikely to work past age 65 and unlikely to earn any remuneration more than the
average part-time that she did before. That being so, the calculation is as
follows:
28 years x $6,000 = $168,000
[74]
I leave it to counsel to calculate the appropriate adjustment for
present dollar value.
COST OF FUTURE CARE
[75]
The plaintiff seeks an award for loss of homemaking capacity to reflect
her reduced capacity to do her household tasks for past and future. In support
of that claim she submits the following cases:
Fobel v. Dean (1991), 83 D.L.R. (4th) 385
(Sask. C.A.), [199] S.J. 374;
McTavish v. MacGillvrary (2000), 74 B.C.L.R. (3d) 281
(C.A., 2000 BCCA 164;
Brisco v. Brisco (February 22, 2002), 38712 Kelowna
Registry (B.C.S.C.), 2002 BCSC 293; and
McIntyre v. Docherty
(2009), 308 D.L.R. (4th) 213, (Ont. C.A.), 2009 ONCA 448.
[76]
The plaintiff did not employ a replacement housekeeper before the
accident when she was working out of the home. Before the accident, Ms. Ward
did all the indoor household chores and some outdoor chores. Since February
2002 she has not been able to do the heavier chores and she is slower and less
efficient than before. She currently receives 3 hours a week paid assistance
for the heavier cleaning tasks. If Ms. Rutherfords recommendations are
accepted this will be cut to 2 hours a week by July 2010. Ms. Rutherford also
recommends assistance in the future with yard and home maintenance projects.
[77]
The plaintiff seeks compensation for the cost of paid help in respect of
certain tasks that she can no longer perform efficiently.
[78]
The defendant has reviewed the plaintiffs list of
future care costs and accepts the claim insofar as the following are concerned:
a)
Risers for washer and dryer;
b)
Personal trainer;
c)
Functional capacity evaluation;
d)
Psychiatric treatment; and
e) Nutritional consultation.
However, the defendant questions the plaintiffs claim for
housekeeping and yard services. The defendant submits that many of the
housekeeping services provided after the plaintiffs injuries were part of the
usual give and take between family members and that to make a separate award for
them would be excessive.
[79]
The defendant submits that the plaintiffs injuries are not of a
sufficient severity to warrant an award of future costs along the lines of the
functional capacity reports of Shawna Rutherford. The authorities establish
that there must be medical justification for cost of future care and the claims
must be reasonable:
Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33; affd (1987), 49 B.C.L.R. (2d) 99 (C.A.)
[80]
The defendant says also that it is important to distinguish the facts in
this case from the quadriplegia cases. In those cases the plaintiffs claims
were subject to the ceiling of non pecuniary damage awards from the 1978
Trilogy of Supreme Court of Canada cases: Andrews v. Grand
& Toy Alberta Ltd., [1978] 2 S.C.R. 229 (Andrews")
(also a quadriplegia case), Arnold v. Teno, [1978] 2 S.C.R. 287 ("Arnold")
(also a quadriplegia case), and Thornton v. Prince George School
District No. 57, [1978] 2 S.C.R. 267 ("Thornton") (collectively
the "Trilogy"). Milina also establishes that the facts of each
case must be considered.
[81]
The law is now settled that loss of homemaking capacity is compensable.
Huddart J.A. summarized it as follows in McTavish v. MacGillivray, 2000
BCCA 164, 74 B.C.L.R. (3d) 281 at para. 63:
As we have seen, it is now well
established that a plaintiff whose ability to perform housekeeping services is
diminished in part or in whole ought to be compensated for that loss. It is
equally well established that the loss of housekeeping capacity is the
plaintiff’s and not that of her family. When family members have gratuitously
done the work the plaintiff can no longer do and the tasks they perform have a
market value, that value provides a tangible indication of the loss the
plaintiff has suffered and enables the court to assign a specific economic
value in monetary terms to the loss. This does not mean the loss is that of the
family members or that they are to be compensated. Their provision of services
evidences the plaintiff’s loss of capacity and provides a basis for valuing
that loss. The loss remains the plaintiff’s loss of economic capacity.
[82]
In Kroeker v. Jansen (1995), 4 B.C.L.R. (3d) 178, 123 D.L.R.
(4th) 652 (C.A.), the majority held that loss of housekeeping capacity was
compensable as damages distinct from non-pecuniary damages, and that where
appropriate, such an award should be made regardless of whether help was
acquired. As Gibbs J.A. put it at p. 183, … 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.
[83]
Housekeeping assistance has been calculated by Ms. Rutherford at $1,200
to July 2010 and $2,400 to $2,800 annually thereafter. Ms. Gibson suggested
the following amounts for housekeeping assistance: $1,095 to $1,277.50 annually
to age 55; $2,190 to $2,155 annually at age 56 to 65; and $1,095 to $1,277.50
annually from the age 66 to 75.
[84]
Taking into account the experts evidence and the plaintiffs history, I
would allow a large portion of the amounts claimed for housekeeping, yard and
home maintenance assistance at $1,200 to July 10, 2010 ; $1,100 to age 55; and $2,200
from age 55 to 65.
[85]
I agree with the defendant that the cost of a vacuum robot is excessive,
and a replacement vacuum is something that is a cost to people regardless of
the persons state of health. I would allow a contribution of $600 towards the
cost of a robot cleaner.
[86]
The defendant relies on the following cases:
McTavish v. MacGillivrary, 2000 BCCA 164, 74 B.C.L.R.
(3d) 281;
Poirier v. Aubrey, 2010 BCCA 266, [2010] B.C.J. No.
900;
Smusz v. Wolfe Chevrolet Ltd. 2010 BCSC 82, [2010]
B.C.J. No. 114; and
Dykeman v. Porohowski, 2010
BCCA 36,, [2010] B.C.J. No. 113.
[87]
As for medication, Ms. Rutherford initially calculated medication cost
of $9,554.37 including dispensing fees. Ms. Gibson was critical of the
calculations and submits a revised calculation including gabapentin at
$3,749.55 plus dispensing fees of $451.20 for a total of $4200.75.
[88]
The plaintiff submits that the annualized cost of medication is subject
to negative contingencies including the expectation that the plaintiff may not
require all of the medications currently listed. Besides that, the evidence
indicates that the plaintiff may well require anti-depressants in the future.
As well, the plaintiff agrees that she will be eligible for the PharmaCare
government subsidy for prescription drugs, such that a reasonable estimation of
annual medication costs would be $2,000.00. I accept that as a reasonable
approximation of what is sufficient.
[89]
Ms. Rutherford recommends the neurostimulator hardware, but the
defendant says this is based on limited information. It is based
fundamentally, on an article written by Dr. Kumar, the surgeon who performed
the plaintiffs neurostimulator implant surgery. The costs anticipated are
based on her report which is, in turn, predicated on the plaintiff always
having to attend at Regina, Saskatchewan for the surgical replacement or
revision. The defendant submits that it is not evident that neurostimulators
will be found to be effective generally. The one now used is only 20%
effective, which is substantially less than the medical observers wished for.
I accept the defendants submission that an appropriate amount for the future
neurostimulator costs is $45,000.00.
[90]
The request for a pool pass is an expense that the plaintiff likely
would have incurred in part in any event, to keep up a healthy lifestyle; that
or some other facility like a gymnasium ought to be considered and also the
obligation of the plaintiff to do her best to get in shape ought to be
considered. I favour the method adopted by the defendants in this regard, that
there should be some contribution, but limited to two years. I would award,
therefore, $150 for an annual pool pass for 2 years to allow the plaintiff to
improve her fitness.
SUMMARY
[91]
In summary, I make the following awards to the plaintiff:
Non-Pecuniary | $150,000 |
Special | $6,731.63 |
Past Loss | $36,000 |
Loss of | $168,000 |
Cost of | |
Housekeeping | $1,200 to $1,100/year $2,200/year |
Robot | $600 |
Medication | $2,000/year to age 75 |
Neurostimulator | $45,000 |
Pool Pass | $300 |
____________________________
The Honourable Mr. Justice Rice