IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101230

Docket: 45185

Registry:
Vernon

Between:

Juanita Etson

Plaintiff

And

Loblaw Companies
Limited doing business as

Real Canadian
Superstore

Defendant

Before:
The Honourable Madam Justice Fisher

Reasons for Judgment

[1]          
On November 28, 2008, the plaintiff, then 76 years old, tripped over the
corner of a wooden pallet in the defendant’s Superstore, fell down, and broke
her hip.  She had surgery to pin her hip together but within nine months the
hardware failed and she had to have two further operations: one to remove the
hardware and another to replace her entire hip.  Fortunately, the last surgery was
successful and the plaintiff is finally on the road to recovery.

[2]          
The plaintiff brings this action under the Occupiers Liability Act,
R.S.B.C. 1996, c. 337, and in negligence.  She says that the defendant
created a hazard by placing a defective pallet containing misplaced store stock
in the middle of a shopping aisle and thus failed to take reasonable
precautions to protect her against the risk of harm.  The defendant admits that
it was at all times an occupier of the premises but disputes liability.  Damages
are also in issue.

Liability

Legal principles

[3]          
The Occupiers Liability Act, in s. 3, provides that an
occupier owes a duty to take reasonable care to see that a person on the
premises will be reasonably safe in using the premises.  This duty applies in
relation to the condition of the premises, activities on the premises, or
conduct of third parties on the premises.

[4]          
A commercial occupier is required to protect its customers from
reasonably foreseeable hazards.  The standard of care is one of reasonableness,
not perfection.  An occupier is not an insurer against every eventuality that
may occur on the premises and the duty of care does not extend so far as to
require a defendant to remove every possibility of danger: see Foley v.
Imperial Oil Ltd., 2010 BCSC 797 at paras. 54-55; Lavalee v.
Bristol Management, 2005 BCSC 1666 at paras. 28-29; Grochowich v.
Okanagan University College, 2004 BCCA 325 at paras 18-19.

[5]          
The plaintiff’s claim is also based in negligence.  This was succinctly
defined in this passage from Ryan v. Victoria (City), [1999] 1 S.C.R.
201 at para. 28:

Conduct is negligent if it
creates an objectively unreasonable risk of harm. To avoid liability, a person
must exercise the standard of care that would be expected of an ordinary,
reasonable and prudent person in the same circumstances. The measure of what is
reasonable depends on the facts of each case, including the likelihood of a
known or foreseeable harm, the gravity of that harm, and the burden or cost
which would be incurred to prevent the injury. In addition, one may look to
external indicators of reasonable conduct, such as custom, industry practice,
and statutory or regulatory standards.

[6]          
In determining what is a reasonable or unreasonable risk of harm, it is
important to consider that the care required is commensurate with the degree of
risk. The greater the risk of harm, the greater will be the care required to
protect against that risk; on the other hand, where the risk is very small it
may be acceptable: Lawrence v.
Prince Rupert (City) and B.C. Hydro & Power Authority, 2005 BCCA 567 at
paras. 21-22.

[7]          
The fact of injury does not create a presumption of negligence. The
burden is on the plaintiff to establish on a balance of probabilities that the
injury resulted from a breach of the defendant’s duty of care: see Lavalee
at para. 30 and Mainardi v. Shannon, 2005 BCSC 644 at para. 21.

[8]          
In addition, the plaintiff has a duty to take reasonable care by keeping
a reasonable lookout for her own safety.  A failure to observe something that
is there to be seen may amount to contributory negligence, although a plaintiff
is not required to keep her eyes focussed on the ground: see Wittal v.
Mandarin Investments Ltd., [1991] B.C.J. No. 2466 (S.C.), and Tabinski
v. Kelowna (City), [1992] B.C.J. No. 2508 (S.C.).

Issues

[9]          
It is not is dispute that the defendant owed a duty of care to Ms. Etson
or that her injuries were caused by tripping on the pallet in the defendant’s Superstore. 
Precisely how Ms. Etson tripped is in dispute.  Ms. Etson says that
she tripped over a split board at the corner of the pallet.  The defendant
challenges this, saying that the evidence does not establish that the split
board caused or contributed to her fall.

[10]       
On behalf of the defendant, Mr. Hallam characterized the threshold
question as whether it is a breach of the duty of care for the defendant to
have used a pallet with a split board.  I consider this approach too narrow. 
Although Ms. Etson firmly believed that she caught her foot on the split
board, this court is not fettered by the plaintiff’s theory of the case.  In my
view, the main issue is whether the defendant breached its duty of care by
creating a hazard when it placed this pallet at this location in the store in a
manner and condition that was not reasonably safe.

[11]       
If the defendant breached its duty, there is an issue as to whether the
breach of duty was the cause of the plaintiff’s fall.

[12]       
The parties referred me to many cases involving occupier’s liability,
some with facts somewhat analogous to this case. I have found many of these
cases to be helpful but of course each case turns on the application of these
principles to its own facts.  I will refer to some of these cases in my
analysis of the evidence and the application of the principles.

The evidence

[13]       
On November 28, 2008, Juanita Etson was shopping with her daughter June
in the defendant’s Abbotsford Real Canadian Superstore.  Ms. Etson did not
know her way around the Superstore, so she was following her daughter.  She was
walking down what is called a “flex-aisle”, where there was a deli display on
one side and several pallets of product stacked in the middle.  The flex-aisle
was 10.5 feet wide and the pallets, placed in about the centre of it, were four
feet square.  The flex-aisle in which Ms. Etson was walking was a little
less than 3.5 feet wide between the deli display and the pallets.

[14]       
June turned left beside a pallet stacked with buckets of dishwasher
detergent.  Another shopper pushing a cart was coming from the direction June
had gone, toward Ms. Etson, who was still in the flex-aisle.  Ms. Etson
stopped to let the shopper go by and then proceeded to turn left by the corner
of the pallet.  As she did so, her left foot caught on something, causing her
to spin around counter-clockwise and fall on her right side.  As she lay on the
floor she saw that there was a split board that had pulled away from the bottom
of the pallet.  She believed that this split board caught the front inside edge
of her left shoe and this is what caused her to fall.

[15]       
Ms. Etson was in considerable pain.  A number of individuals came
to help, including her daughter, another customer, several Superstore employees
and the store manager.  Ms. Etson told the manager that she tripped on the
split board and she saw him pull it from the pallet.  Someone assisted her into
a wheelchair and she was eventually taken by ambulance to the hospital.

[16]       
There were no witnesses to the incident.  There are a number of
photographs of the area where Ms. Etson fell and the pallet over which she
tripped.  The photographs depict the pallet with large buckets of dishwasher
detergent stacked in three layers, still covered with plastic wrap.  The pallet
is supported by what appear to be two-by-four boards, and along the flex-aisle
there are two spaces between the bottom of the pallet and the floor near each
corner. The bottom edge along the flex-aisle is painted orange.  The buckets
are not neatly placed on the pallet.  They sit several inches away from the
edge, particularly at the corner where Ms. Etson was passing.  This
contrasts with the product on the pallet that sits immediately adjacent to it,
where what appear to be yellow plastic boxes are neatly stacked along and close
to the edge.

[17]       
There are two photographs that show the bottom corner of the pallet
before the split board was removed.  While these photographs are far from
ideal, they do depict a board, perhaps several feet long, projecting up to an
inch beyond the outside edge of the pallet along the side perpendicular to the
flex-aisle.

[18]       
Ms. Etson was challenged on her belief that her left foot caught on
the split board.  She agreed that she saw the pallet and that she was able to
see over the display of detergent buckets.  She agreed that the split in the
board did not cause it to project into the flex-aisle.  She could not explain
how the left inside front of her shoe came into contact with the split board or
how she became turned around.  She disagreed that her foot got caught in one of
the spaces underneath the pallet along the flex-aisle and she stayed firm in
her belief that she caught her left foot on the split board.

[19]       
The defendant did not call any evidence.  Plaintiff’s counsel read in
admissions from the examination for discovery of a district manager for the
defendant.  Pallets with product are placed in flex-aisles for the purpose of
offering the products for sale to customers shopping in the store. The
defendant does not have a written policy regarding the placement or inspection
of pallets.  District managers provide some direction as to the number of
pallets to be placed for merchandizing purposes but the actual placement of pallets
is up to the individual store.  The condition and displays of pallets may be
checked visually only but there is no evidence that any checks were made in
respect of the pallet in issue.

The positions of the parties

[20]       
On behalf of the plaintiff, Mr. Cotter submitted that the court
should accept Ms. Etson’s evidence that she fell when her left foot caught
the split board at the corner of the pallet, but in any event, the pallet was a
tripping hazard due to its defective condition and the manner in which it was
stocked with product.  He says that the defendant breached its duty of care to Ms. Etson
by failing to keep its aisles free from an unusual danger.  This failure
resulted from a culmination of acts and omissions which include (a) reducing
visual cues by allowing the pallet to be stocked with product that was not
flush to the edge, (b) placing a pallet in the flex-aisle that it knew or ought
to have known was damaged, and (c) failing to have a reasonable system of
inspection and maintenance of pallets to be used to display product.

[21]       
Mr. Hallam submitted that the defendant did not breach its duty of
care because the pallet was not a foreseeable danger, and in any event, the
plaintiff’s claim fails on a causation analysis.  He says that the evidence
does not support Ms. Etson’s assertion that the split board caused her
fall; rather she simply failed to take enough care to negotiate her way around
a large and easily visible sales display.  In the alternative, Mr. Hallam
submitted that Ms. Etson was contributorily negligent in failing to keep a
reasonable lookout for her own safety and that she bears most of the fault for
her injuries.

Findings of fact and analysis

[22]       
I found Ms. Etson to be a truthful witness.  She may have been
somewhat prone to reconstructing events in her efforts to remember details but
overall I found her evidence to be credible and reliable. It was also
consistent with the photographs of the pallet and the area where she fell.

[23]       
The presence of the pallet was obvious but the location and condition of
the bottom corner was not.  The way the dishwasher detergent buckets were
placed on the pallet gave a somewhat misleading impression, when compared to
the pallet beside it, that the bottom edge was farther away from the aisle than
it actually was. While the bottom edge was painted orange, this would only be
seen by a person standing beside it if that person was focussed on the floor. There
was a fairly long board that had splintered away from the pallet base and was
protruding into the aisle perpendicular to the flex-aisle.  This was difficult
to see because the split board and the pallet bottom were the same colour.  Unless
a person was looking closely at the floor, it would be difficult to appreciate
that the bottom corner of pallet protruded several inches further out from
where the detergent buckets were stacked.

[24]       
Ms. Etson was sure that she caught her left foot on the split
board.  She was not sure how this occurred or how she got turned around.  She
thought the board caught the front inside sole of her left shoe. She was
wearing athletic shoes which, she said, “might not be sensitive to everything
they touch” and admitted that she would not necessarily have felt her shoe
touch the edge.  She was cross-examined at some length about how she fell but
she steadfastly maintained her position.

[25]       
Given how quickly the incident occurred, it is not surprising that Ms. Etson
could not remember details about the manner of her fall.  It is not possible to
determine precisely what part of her shoe made contact with the pallet. 
However, in my view, it is not necessary to make a finding of such precision in
order to determine if the pallet constituted an unreasonable risk of harm in
the circumstances.

[26]       
I do not disagree with Mr. Hallam that Ms. Etson’s evidence
makes little sense if she caught the inside of her left foot before she began
her left turn, since the split board was not projected into the flex-aisle. 
However, Ms. Etson testified that she had begun to make her left turn when
something caught her foot.  In my view, it is entirely likely, and I so find,
that Ms. Etson’s left foot caught the corner edge of the pallet at the
point where the split board was protruding while she was turning the corner
from the flex-aisle.

1.         Duty of care

[27]       
As I have found, while the presence of the pallet was obvious, the outer
edge of the bottom corner was not obvious to a customer who was passing beside it. 
This was a consequence of two factors.  The first was the split, protruding
board that was not easily visible, and the second was the manner in which the
detergent buckets were stacked on the pallet.  In these circumstances, it would
be difficult to appreciate that the bottom corner of the pallet protruded several
inches further out from where the detergent buckets were stacked.  Given this,
it was reasonably foreseeable that a customer might anticipate that there was
more room to turn the corner than there actually was.

[28]       
This case is somewhat similar to Castillo v. Westfair Foods Ltd.
(1999), 88 A.C.W.S. (3d) 1176 (B.C.S.C.). There, the plaintiff tripped over a
display platform that was stocked with product only at either end.  The space
between the products displayed on the platform gave the impression that there
was a passageway when there was not.  Although it had a stainless steel edge
with yellow price tags that delineated it from the floor, the platform was the
same colour as the floor.  The plaintiff was not looking where she was going
because her attention had been diverted to another product that was on display
in the next aisle.

[29]       
The issue in Castillo was whether the defendant created a danger
by locating this type of platform in a place where it encouraged customers to
look up at other product displays.  The court held that it had:

[44]      Westfair’s display platform
was not reasonably safe given the nature of its business. It was reasonably
foreseeable that customers might anticipate a passageway existed between two
aisles in the place where the platform was left empty, given the platform was
the same colour and configuration as the floor. It was also reasonably
foreseeable that customers would be looking up at the products displayed to
catch their attention. Depending on a customer’s distance from the platform and
whether her attention was diverted to the products on the shelves, a customer
might not see the metal edging with the yellow price tags around the platform. In
these circumstances, it would be reasonably foreseeable that the platform would
present a danger to a customer.

[30]       
Ms. Etson testified that she was doing what she normally does at a
grocery store: looking around at products and looking at the floor maybe three
feet ahead.  While Ms. Etson was not distracted by a particular display,
as in Castillo, the evidence is clear that the defendant places products
for display on pallets so that customers will see the products and consider
buying them.  In my view, it was reasonably foreseeable that Ms. Etson
would be looking at products displayed to catch her attention and not looking
down at her feet.

[31]       
In these circumstances, given the nature of the defendant’s business, it
is my view that the pallet was not reasonably safe and it was reasonably
foreseeable that its condition with the protruding board and the manner in
which it was stocked would present a danger to a customer.

[32]       
The circumstances here are distinguishable from those in Young v.
Westfair Foods Ltd., 2001 BCPC 28, where the plaintiff fell onto a cart
that was clearly visible in the middle of an aisle; from Lawrence, where
the plaintiff tripped over a power pole that was clearly visible on a sidewalk;
and from Hunning v. Huang, [1984] B.C.J. No. 2087 (S.C.), where the
plaintiff fell into a well-lit stairwell.  In all of these cases there was
nothing in the placement or condition of the objects that was not obvious to
any person watching where he or she was going.

[33]       
This case can also be distinguished from Mynott v. F. W. Woolworth,
[1992] B.C.J. No. 405 (S.C.).  There, the plaintiff testified that she
tripped over a display platform that projected about four feet into an aisle. 
However, the judge did not accept her evidence and found that the platform did
not project into the aisle but rather formed part of the intersection between
two aisles, was part of the defendant’s display, and was not unusual.  Most
importantly, the judge did not find anything in the nature of a trap which
would serve to mislead the plaintiff in any way and he concluded that the
accident could have been avoided “by a modicum of awareness on the part of the
plaintiff”.

[34]       
In this case, Ms. Etson’s accident could have been avoided if the
defendant had removed the split board and stacked the detergent buckets in a
more uniform fashion along the edge and corner of the pallet.

[35]       
Moreover, the damaged condition of the pallet and the rather haphazard
display of product could easily have been prevented had there been a simple
visual inspection when the pallet was installed.  There is no evidence that
there was any visual inspection of this pallet by any of the defendant’s
staff.  In my view, had someone looked at this pallet, it would have been
fairly obvious, and thus reasonably foreseeable, that a pallet in the condition
of this one could have constituted a tripping hazard to customers.  The ease or
difficulty and the expense with which an unusual danger could have been
remedied is a factor to consider in assessing whether a defendant has fulfilled
its duty of care under s. 3 of the Occupier’s Liability Act: see MacLeod
v. Young, [1997] B.C.J. No. 2108 at para. 8 (S.C.).

[36]       
In all of these circumstances, I have concluded that the defendant
breached its duty under s. 3 of the Occupiers Liability Act to take
reasonable care to see that the plaintiff would be reasonably safe in using its
premises on November 28, 2008.

2.         Causation

[37]       
Causation is established where the plaintiff proves on a balance of
probabilities that the defendant caused or contributed to the injury.  The
general test for causation is the “but for” test, which requires the plaintiff
to show that the injury would not have occurred but for the negligence of the
defendant: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-14;
see also Resurfice Corp. v. Hanke, 2007 SCC 7.

[38]       
It is important to note that it is not necessary for the plaintiff to
establish that the defendant’s negligence was the sole cause of the injury. 
Provided a defendant is part of the cause of an injury, the defendant is
liable, even though his act alone was not enough to create the injury: Athey
at para. 17.

[39]       
Mr. Hallam argued that Ms. Etson could not establish that but
for the split board she would not have tripped.  In her examination for
discovery, Ms. Etson was asked if the fall would not have occurred if the
board had not been loose.  While she conceded that she still might have tripped
on the corner of the pallet, she also said that it was almost impossible to
answer such a question and she really did not know.

[40]       
In my view, this question asked for Ms. Etson to speculate, and she
quite rightly, and honestly, said that it was impossible to answer. This
evidence does not detract from Ms. Etson’s evidence about how she fell and
it does not detract from the evidence that the defendant’s breach of duty
caused or contributed to her injury.

[41]       
This case is substantially different from Lansdowne v. United Church
of Canada et al., 2000 BCSC 1604.  There, the plaintiff attributed her fall
on some stairs to loose threads on the carpet of the bottom step.  However, she
did not know on which step she tripped or where on the stairs she started to
fall. The court found that she was able only to advance a theory of how she
fell and it would have to speculate in order to find that the fall was caused
by the loose threads on the bottom step or some other defect in the carpet.  It
is also different from Van Slee v. Canada Safeway Limited, 2008 BCSC
107, where the plaintiff also advanced only a theory that she “must have”
slipped on water that had accumulated on the floor of the defendant’s store but
was unable to say that there was in fact any water or other hazard present when
she slipped.

[42]       
Here, the plaintiff knew that she tripped at the corner of the pallet.  More importantly, given my finding that Ms. Etson’s
left foot caught the corner edge of the pallet at the point where the split
board was protruding, I conclude that she has met the burden of proving that
the defendant’s breach of its duty of care caused her injuries.

3.         Contributory negligence

[43]       
In addition to the defendant’s failure to remove the loose board and
stack the detergent buckets in a more uniform fashion, this accident could have
been avoided if Ms. Etson had paid more attention to where she was
walking.  Although she is not required to focus her attention at all times to
the floor, she is required to be aware of her surroundings: see Mynott at
para. 14 and Castillo at paras. 47, 50.  Ms. Etson said
that she was looking at the floor about three feet ahead.  Had she looked down
at her feet, even momentarily, before she began to turn the corner, she would
have seen that she was too close to the corner of the pallet.  Accordingly, I
find that she did not take reasonable care for her own safety.

[44]       
The Negligence Act, R.S.B.C. 1996, c. 333, requires me to
apportion the degree to which each party was at fault.  In the circumstances of
this case, I find the degree of fault to be equal and I apportion liability
50/50 between the plaintiff and the defendant.

Damages

[45]       
Ms. Etson’s primary claim is for non-pecuniary damages.  She also claims
special damages, some of which are not in issue, cost of future care and an in
trust claim for assistance provided to her by her sister and a friend.

Non-pecuniary damages

[46]       
The essential principle in assessing non-pecuniary damages is to restore
the plaintiff, as far as money can do so, to the position she would have been
in before the accident.  These damages are specific to the circumstances of
each case and each plaintiff.

[47]       
There are a number of factors that courts consider in assessing
non-pecuniary damages.  These include the age of the plaintiff, the nature of
the injury, the severity and duration of pain, disability, emotional suffering,
impairment of family or social relationships, impairment of physical abilities,
and the loss of a lifestyle.  A plaintiff is not to be penalized if he or she
is stoic in her response to the injury and the pain: Stapley v. Hejslet,
2006 BCCA 34 at para. 46.

The evidence

[48]       
Ms. Etson is a widow who lives alone in Sicamous, B.C.  She is now
78 years old and retired.  She had three children.  Her daughter, June,
unfortunately passed away after this incident, in April 2009.  She has one
sister, Virginia Rogers, who also lives in Sicamous, with her husband.

[49]       
Ms. Etson testified that before her fall, she was in good health
and lived an active, independent lifestyle.  She was able to do everything
around her home, including gardening and shovelling snow.  She worked until
several years ago, doing drafting for a company that sells mobile homes. She
did a lot of work finishing her own mobile home.  She is also an artist and was
very involved in art, painting groups and community activities.  She had an
active social life.

[50]       
In September 2008, Ms. Etson had knee replacement surgery.  She said
that she recovered well within eight weeks.  While she favoured her knee to
some extent, by late November, she was able to walk without assistance.

[51]       
Ms. Etson was in Abbotsford visiting her daughter, June, in November
2008.  June had been in hospital and not expected to live.  Miraculously, June recovered
temporarily and was able to be released from hospital on November 26.  On the
day of the fall, Ms. Etson and June were shopping for something special
for dinner.

[52]       
The fall was very painful.  Ms. Etson was taken by ambulance and admitted
to hospital immediately.  According to Dr. Paul Moreau, an orthopaedic
surgeon, she was diagnosed with a right subcapital hip fracture.  On November
30, 2008, she underwent closed reduction internal fixation surgery, where
screws were inserted to repair the fracture. She stayed in hospital for five
days after that.  She was discharged with instructions to “protective weight
bear 50 per cent maximum on the right side”.  Ms. Etson said that the trip
home to Sicamous was not easy for her.  She had to arrange to obtain a walker
because it was too difficult to use crutches right away.

[53]       
Ms. Etson testified about how she coped at home.  She had
difficulty getting up from the sofa and she had to use a walker to get around
her house.  She could not get into her bathtub for about a month.  She was very
limited in what she could do.  Friends and family prepared meals for her. She
had her groceries delivered. Her sister took her to her doctor’s appointments
in Vernon.  She was not able to drive until March.  She needed to use crutches
to get to and from her car. She took some physiotherapy and slowly improved.

[54]       
In August 2009, Ms. Etson began experiencing more pain, which kept
increasing.  According to Dr. Moreau, it was suspected that there may have
been some collapse of the femoral head.  By November her pain had increased
significantly and it was felt that she was developing avascular necrosis and
collapse of the femoral head.  She had to use a wheelchair to get around.  In
January 2010 she underwent surgery to remove the plate and screws. 
Unfortunately, her pain did not subside.  Her mobility deteriorated.  She had
difficulty sleeping.  In April 2010, she underwent a right total hip
replacement.  She described her sense of relief when, after this operation, she
realized that she could finally move without pain.

[55]       
Since then, Ms. Etson has recovered reasonably well.  She said that
it took her about two months to be able to walk without assistance.  She uses a
cane if she walks more than two to three blocks and she has a bit of a limp.
She is still limited in what she can do but she is able to drive and do most
things around her home.  She hopes to be able to do some gardening and yard
work in the spring but does not feel she is able to do this now.  She has not,
however, resumed her former lifestyle.  She has not returned to her painting or
community and social activities. She testified that she has not had the
enthusiasm or inspiration.  She said that she was feeling very “down” and felt
that the accident took away two years of her life.

[56]       
Dr. Moreau examined Ms. Etson on September 27, 2010.  He
described her symptoms at that time as follows:

Overall, she is doing well 6
months post total hip replacement.  She still feels generally weak, but her
energy is slowly improving.  She gets occasional electric type of shocks along
the incision area.  She is now able to lie on the affected side. She can climb
up and down stairs without great difficulty. She takes 2 extra strength
Tylenols at night and this helps her sleep. She also takes Celebrex on a
regular basis, this is also for her other generalized joint discomfort.  She
has no significant pain with walking.

[57]       
Dr. Moreau also stated that Ms. Etson would have some residual
symptoms from the hip replacement for about three months.  He did not feel that
she will require any further treatment or specific rehabilitation.  In his
opinion, it is very unlikely that she will have any further problems or
disabilities because of the hip injury.  He stated:

The 20 year survival for total
hip replacements is now over 90 percent.  Rare complications such as
peri-prosthetic fracture or dislocation would be related to a new injury. 
Secondary infections of a total joint replacement are possible, but the
incidence is less than 1 percent.

The positions of the parties

[58]       
Mr. Cotter submitted that $60,000 to $100,000 is an appropriate
range of non-pecuniary damages and suggested that an award of $90,000 would be
fair in this case.  Mr. Hallam submitted that the appropriate range is
$65,000 to $70,000.

[59]       
Determining non-pecuniary damages involves an assessment of the
plaintiff’s original position, which includes pre-existing conditions: see Athey. 
The defendant did not take the position, nor is there evidence, that Ms. Etson’s
prior knee replacement should taken into account in assessing her damages.

Findings of fact and analysis

[60]       
Ms. Etson’s testimony about her previous level of activity and her
condition after the accident was entirely credible.  It was consistent with the
evidence of her sister, Virginia Rogers, and her friend, Esther Erikson, and it
was also consistent with the medical report of Dr. Moreau.

[61]       
Ms. Etson was quite reserved in her descriptions of the pain she
experienced as a result of her injuries but there is no question that she suffered
a tremendous amount of pain.  The initial injury was obviously very painful and
it took Ms. Etson about four months to begin to resume her mobility sufficiently
to be able to drive and do things for herself.  She suffered a debilitating
set-back in August 2009 when the hardware failed and the femoral head in her
hip collapsed.  Her mobility deteriorated and she was again unable to do things
for herself.  She suffered tremendous and increasing physical pain for about
eight months.  She underwent two additional surgeries.  The first, in January
2010, did not alleviate her pain or improve her mobility.  She did not
experience any relief from the pain until April 2010 when she had the total hip
replacement surgery.

[62]       
Ms. Etson had been a very independent and active woman.  She was
involved in painting and the arts and was very active in a local painting club
and other community events.  After the accident, she was unable to continue any
of this involvement and she had considerable difficulty maintaining her
independence.  She had to rely on her sister and Ms. Erikson to help her
with meals and other things.  She developed ways to get around her house and
she managed as best as she could.  However, it is apparent that the severe
limitations on her ability to participate in activities outside her home for
close to a year and a half left her feeling very isolated.  Moreover, the
accident occurred at a very difficult time in Ms. Etson’s life, when her
daughter was in the later stages of a terminal illness.  While she said
little about this, it was clear to me that her injuries made it practically
impossible for her to visit her daughter before her death in April 2009.  Since
the hip replacement surgery in April 2010, Ms. Etson’s condition has
improved significantly but she has not yet found the spirit to return to her
pre-accident activities and she is still not socially active.  I am satisfied
that the injury is a factor here, but I also find that some of this lack of
spirit is attributed to other factors, such as the death of her daughter.

[63]       
Clearly, Ms. Etson’s injuries have had a profound effect of her
life.  She has recovered reasonably well since April 2010 but she still has
residual problems.  She is limited in how far she can walk, she still uses a
cane when walking for more than two or three blocks and she has a bit of a
limp. She is able to live independently now but she is still not able to do
heavier physical activities such as gardening or snow removal. I do not accept Dr. Moreau’s
comment that “there would have been some residual symptoms during her recovery
from the hip replacement of about 3 months”.  This statement is not consistent
with his own observations of her condition on September 27, 2010, and is not
consistent with Ms. Etson’s evidence, which I do accept.  Her residual
symptoms have lasted longer than that and while her prognosis is not entirely
clear, it is likely that she will be able to resume most, if not all, of her
pre-accident activities by the spring.

[64]       
I do accept Dr. Moreau’s opinion that Ms. Etson will not require
any further treatment or specific rehabilitation and that it is very unlikely
that she will have any further problems or disabilities because of the hip
injury.

[65]       
With respect to the quantum of non-pecuniary damages, I have reviewed
these cases cited by counsel:

Fost v.
Badcock et al., 2005 NLTD 213

Simon v. The
Owners, Strata Plan KAS2093 and others, 2007 BCSC 1592

Irvine v.
Cara Operations Limited Enterprises, 2002 BCSC 1581

Campbell
v. Little, [1993] B.C.J. No. 282 (S.C.)

Anderson
v. Hicks Enterprises Ltd., [1991] B.C.J. No. 3059 (S.C.)

Broccoli v. Harris, [1991] B.C.J.
No. 2725 (S.C.)

[66]       
Many of these cases were helpful but of course each is specific to the
effect of the injuries on the particular plaintiff.  Several of them involved
plaintiffs over 70 years old.  Mr. Hallam did not, however, take the
position that Ms. Etson would not have enjoyed her pre-accident activity
level for a long future period of time given her age. This factor served to
reduce an award for non-pecuniary damages in Irvine, where the plaintiff
was 86 years old.  There is no evidence in this case that Ms. Etson would
not have continued to enjoy her active and independent life style for many
years to come. In my view, this is a case where Ms. Etson’s injuries could
be viewed as more profound due to her age. In Pingitore v. Luk, [1994]
B.C.J. No. 1866 (S.C.), the court noted (at para. 36) that “[i]njury
to older people is, from at least one vantage, more profound than injury to the
younger” and referred to these comments in a decision of the Court of Appeal of
England, in Frank v. Cox (1967), 111 S.J. 670:

I take the view myself that when
one has a person in advancing years, in some respects an impairment of movement
may perhaps be more serious that it is with a younger person. It is true, as Mr. Chedlow
has stressed, that he has not got as many years before him through which he has
to live with this discomfort, pain and impairment of movement. But it is
important to bear in mind that as one advances in life one’s pleasures and
activities particularly do become more limited, and any substantial impairment
in the limited amount of activity and movement which a person can undertake, in
my view, becomes all the more serious on that account.

[67]       
I found the decision in Simon quite helpful, although the effects
of the injuries were more significant than in this case. There, the plaintiff
was 66 years old when she fractured her left hip and heel from a fall down some
stairs and was 74 at the time of trial.  Her hip was surgically repaired but
she was left with a permanently shorter left leg, resulting in a gait imbalance
and permanent instability.  The gait imbalance contributed to osteoarthritis in
her lower back, progressive partial impairment in mobility and chronic
insomnia.  The court found that the injuries were devastating to the plaintiff,
who had previously lived an active and independent life, and awarded her
$100,000 for non-pecuniary damages.  I am advised that the present value of
this award is $105,000.

[68]       
Irvine was also a helpful comparison, although the plaintiff was
older.  The court awarded $60,000 for non-pecuniary damages for injuries that
included a fractured right hip, wrist and shoulder.  The plaintiff underwent
three surgeries for the fractures and was bedridden for about 10 days.  She
recovered from the hip injury but continued to have limitations from the wrist
and shoulder injuries.  I consider this award (with a present value of $73,000)
to be on the low end given the court’s conclusion that the plaintiff, at her
age, would not have enjoyed her pre-accident activity level for a long term
future period.

[69]       
I also consider the awards given in Anderson and Broccoli,
$30,000 and $40,000 respectively, to be low.  Both involved plaintiffs in their
70’s with fractured hips.  They are dated (1991) and while the present value of
these awards increases the amounts to $48,000 and $64,000, it appears that each
judge considered the advanced age of the plaintiff to be an important factor. 
In Anderson, the court’s award of $30,000 was based on the same amount
awarded in a 1983 case, taking into account “the more advanced age of the present
plaintiff against the amount by which the dollar has been devalued by inflation”. 
In Broccoli, where the injuries were more comparable to this case, the
court relied only on “cases dealing with elderly people who suffered hip
injuries” without providing any analysis of those cases.

[70]       
In this case, the injuries had a profound effect on Ms. Etson’s
life.  Her active and independent life style, which was important to her, was
seriously compromised for over a year and a half.  During that time she experienced
significant pain and had to undergo three surgeries.  She is now able to resume
most of her former activities but she still has some residual effects.  Given
my findings, I assess non-pecuniary damages at $90,000.

Future care costs

[71]       
Ms. Etson makes a modest claim in the amount of $15,000 for a
future loss of housekeeping capacity.  She says that her ability to look after
her household has been affected by her injury and will likely continue to do so
in the future.

[72]       
While the legal basis for such a claim is well known (see McTavish v.
MacGillivray, 2000 BCCA 164), there is little, if any, medical evidence to
support this claim.  As indicated above, Dr. Moreau saw Ms. Etson on
September 27, 2010, four months after the surgery.  He reported that she was
doing well overall at that time but noted that she was still feeling generally
weak and needed to take extra strength Tylenols at night to help her sleep.
More importantly, Dr. Moreau was of the opinion, which I have accepted, that
Ms. Etson will unlikely have any further problems or disabilities due to
her hip injury and that complications or
secondary infections are possible but rare.

[73]       
 Mr. Hallam submitted that there is no basis for the court to make
any award for this future loss in light of Dr. Moreau’s evidence.

[74]       
I note here that the plaintiff is not required to prove a future or hypothetical
event on a balance of probabilities.  Rather, she must prove that future event
is a real and substantial possibility and not mere speculation: see Athey at
para. 27.

[75]       
Dr. Moreau did not specifically address how long it would take Ms. Etson
to be back to her normal household activities.  As explained above, I have not
accepted his evidence that “there would have been some residual symptoms during
her recovery from the hip replacement of about 3 months” and I have accepted Ms. Etson’s
evidence that she is still limited in her ability to do things like yard work
and snow removal.  She is, however, able to do things around her house and she no
longer has joint pain. She is able to drive and do grocery shopping with a cart.

[76]       
I am not satisfied that Ms. Etson has established the basis for a
claim for future loss of housekeeping capacity.  While she continues to have some
residual symptoms, the limitations on her ability to do housework are no longer
significant and there is no evidence to establish a substantial possibility
that her residual symptoms will continue indefinitely into the future.

[77]       
Moreover, there is no evidence from which a monetary award can be based.
Ms. Etson did not adduce any evidence about the cost of the housekeeping
services claimed.

[78]       
Mr. Cotter relied on a similar award given in Paller v. Paller,
2004 BCSC 977, where the court was satisfied that the plaintiff had a reduced
capacity to provide housekeeping services as a result of chronic back pain, but
was not satisfied that the loss was to the extent claimed.  I did not find that
case particularly helpful.  There the amount claimed, $120,000, was based on
the equivalent of 12 hours a week to a stated age.  The court reduced this to
$30,000.  Clearly, there was evidence before the court that established the
basis for the initial claim, including rates for housekeeping services.

[79]       
In the absence of any evidence about the cost of housekeeping services, Ms. Etson
is essentially asking the court to award her a nominal amount to compensate her
for unspecified housekeeping assistance for an unspecified period of time in the
future.  In these circumstances, there is no basis to make such an award.

In trust claim

[80]       
The plaintiff also makes an in trust claim for the care that was
provided to her by her sister and a friend.  Mr. Cotter submitted that an
award of $10,000 would be appropriate.

[81]       
The purpose of an in-trust award is to compensate a plaintiff for a
diminished ability to carry out household tasks, even where such tasks have
been performed gratuitously by one or more family members: see Kroeker v.
Jansen (1995), 4 B.C.L.R. (3d) 178 (C.A.); Bradley v. Bath, 2010
BCCA 10.

[82]       
Mr. Hallam opposes this claim on the basis that there is no
evidence on which to quantify such a claim.  While there is ample evidence that
Ms. Etson’s ability to perform household tasks was severely diminished
after her fall and continued to be diminished as she suffered complications
from the initial surgery, I agree that this is a deficiency in the plaintiff’s
evidence.

[83]       
The factors to be considered in the assessment of in trust claims were
summarized in Bystedt v. Hay, 2001 BCSC 1735 at para. 180:

(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
;

(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.

[84]       
The evidence establishes that Ms. Etson received some services from
her sister, Virginia Rogers, and her friend, Esther Erikson, which were
necessary for her care as a result of her injuries.  Ms. Rogers testified
that she helped Ms. Etson with driving, grocery shopping and providing
meals.  Ms. Erikson testified that she stayed with Ms. Etson for about
three days when she first came home after the accident and then checked on her
daily for a week or two following.  She helped her to get up, made her
breakfast and often brought meals. She also took Ms. Etson to hospital and
doctor appointments on occasion.  She said that Ms. Etson paid her once or
twice, either by taking her for lunch or paying for gas.

[85]       
The evidence also establishes that the services provided by Ms. Erikson
and at least some of the services provided by Ms. Rogers were over and
above what could be expected from Ms. Etson’s relationships with these
women.  The case law does not expressly address in trust claims for services
rendered by non-family members, although Bystedt certainly implies that
a claim may be made for services provided by a friend as opposed to a family
member.

[86]       
However, the evidence does not establish the cost of obtaining any of
these services and there is no basis for this court to assess the “true and
reasonable value of the services performed taking into account the time,
quality and nature of those services” in order to make a damage award that reflects
the wage of a substitute caregiver.  Although the plaintiff’s claim here is a
modest one, in the absence of evidence to properly quantify such a claim, it
must be dismissed.

[87]       
While not raised by the defendant, I note as well that this claim
was not specifically pleaded.  This issue was discussed by Mackenzie J.A. in
Star v. Ellis, 2008 BCCA 164 at para. 21:

One aspect of this claim that is
not directly in issue on this appeal, but is of some significance, is the
question of the extent to which a claim for past in-trust services ought to be
pleaded. The claim is addressed under the heading of special damages which
normally requires that the claim be specifically pleaded as is the case with
out-of-pocket expenses. The trial judge relied on Frers v. De Moulin
[2002 BCSC 408] for the proposition that an in-trust claim does not have to be
specifically pleaded and Frers was not challenged by the appellant in
this case. Nonetheless, it appears to me that a claim of this nature ought to
be pleaded to provide a degree of specificity to the claim. As I have
indicated, the pleading point is not specifically put in issue on this appeal,
but in my view, good practice suggests that in future cases it ought properly
to be pleaded.

[88]       
In Bradley, the Court of Appeal did not resolve this issue
because it found that the evidence did not provide a foundation to conclude
that the plaintiff’s ability to perform household tasks had been diminished.  That,
of course, is not the case here.  While such claims should be specifically
pleaded, in the absence of prejudice I would not be inclined to deny Ms. Etson’s
claim only on this basis.

Special damages

[89]       
The parties agreed to an amount of $1,623.80 for special damages.  The
plaintiff claims a further sum of $5,404 to compensate her for the cost of
purchasing a recliner chair and the cost of replacing her bathtub with a
walk-in tub and shower unit.

[90]       
The defendant opposes these further claims on the basis that they were not
medically justified, as they were made long after the accident.

[91]       
Ms. Etson testified that she purchased a rocker recliner chair
because she was unable to sleep on her back for about a month.  She had trouble
with the chair she originally purchased.  In May 2010, she returned it and
purchased a lift chair, which allowed her to rest in a comfortable reclining
position. She claims $448, which is the difference in price between the
recliner chair and the lift chair.  She also claims $4,956 for the cost of a
new bath and shower unit, which she had installed in March 2010, before her
last surgery. She said that this unit allowed her to get inside with her
walker.

[92]       
In my opinion, these expenses were medically justified.  While she ought
to have purchased these items sooner, I do not think Ms. Etson should be
faulted for her delay in doing so.  She clearly had a need for them for some
time.

[93]       
Accordingly, special damages are awarded for a total of $7,027.80, which
includes the agreed amount of $1,623.80 and $5,404 for the chair and shower
unit.

Health Care Costs Recovery Act

[94]       
The Health Care Costs Recovery Act, S.B.C. 2008, c. 27, came
into force April 1, 2009.  A person who commences a legal proceeding against a
wrongdoer for damages for personal injury is now obligated to include a health
care services claim in that proceeding.  The plaintiff in this case did not do
so.  Mr. Cotter did, however, discuss the matter with counsel for the
Ministry of Health Services.  I was advised that the Ministry intends to pursue
recovery of health care costs by way of a separate action if the claim is not
resolved in this proceeding.

[95]       
I considered whether to permit the plaintiff to amend her statement of
claim to include a health care costs recovery claim.  Mr. Hallam submitted
that to do so at this stage could be prejudicial to the defendant because it
did not agree with the amount of the Ministry’s claim and it was doubtful that
these parties were ready to deal with this issue at this trial.  Under s. 16,
the Minister may issue a certificate setting out the health care services
received and the costs of those services.  It has been held that s. 16(1)
creates a rebuttable presumption: MacEachern v. Rennie, 2009 BCSC 652 at
para. 27.

[96]       
The Health Care Costs Recovery Act gives the Ministry several
ways to recover the costs of health care services.  One way is where a
plaintiff includes such a claim.  Another is by way of a separate action. Under
s. 8, the government has the right to commence a legal proceeding in its
own name for the recovery of past and future costs of health care services.

[97]       
If a claim has not been included in a proceeding, the court must, under
s. 3(3), permit an amendment of the originating documents up to six months
after they were filed in the court.  In this case, the statement of claim was
filed November 2, 2009, and the application to amend was made over a year
later, at the start of trial.  In such circumstances, I have the discretion to permit
or refuse an amendment.

[98]       
It was my view that permitting an amendment at this late stage would be
prejudicial to the defendant’s ability to challenge the amount of the claim and
would result in delays, as the trial would likely require more time to
complete.  Since the Ministry had another option that it intended to pursue if
necessary, I denied the application to amend.

Conclusion

[99]       
The defendant is liable to the plaintiff for breaching its duty of care
under s. 3 of the Occupiers Liability Act. The plaintiff was
contributorily negligent by failing to take reasonable care for her own
safety.  Fault is assessed equally between the parties.

[100]     Non-pecuniary
damages are assessed at $90,000 and special damages at $7,027.80.

[101]     The
plaintiff’s claim for future housekeeping services and the in trust claim are
dismissed.

[102]     There will
be judgment for the plaintiff in the amount of $48,513.90, which is 50% of the
damages awarded.

[103]     The
parties will have leave to make submissions on costs if they are unable to
agree.

“Fisher
J.”