IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121214

Docket: 46421

Registry:
Kamloops

Between:

Geraldine
Marie Wayne

Plaintiff

And

Dario
Donisi, Ari Financial Services Inc.
and Cadbury Adams Canada Inc.

Defendants

Before:
The Honourable Madam Justice Hyslop

Reasons for Judgment

INTRODUCTION

[1]            
On March 17, 2011, at about 9:15 a.m., the plaintiff, Geraldine Marie
Wayne, was driving north on Highway No. 5 in Kamloops, British Columbia. She
came to a stop at Rogers Way. Her vehicle was struck by a vehicle driven by the
defendant, Dario Donisi, and owned by the corporate defendants, Ari Financial
Services Inc. and Cadbury Adams Canada Inc. (the “accident”).

[2]            
Mrs. Wayne testified that before her vehicle was hit she was looking
straight ahead, and when the Donisi vehicle hit her she felt a jolt and her
neck went back and forth.

[3]            
Mrs. Wayne and Mr. Donisi moved their vehicles to a parking lot where
they exchanged information. She testified that she felt shaky.

[4]            
Mrs. Wayne was on her way to the Tournament Capital Centre (“TCC”) where
she was to meet her daughter, Teresa Buchanan. They had arranged to walk on the
track at TCC, where they usually walk for two and a half hours. Ms. Buchanan
testified that when her mother arrived at TCC and started to walk, her speech
was “fuzzy” and she had difficulty turning her head. Mrs. Wayne and her
daughter started to walk. Within half an hour to an hour, she felt pain in the
left side of her neck and in her shoulder. Mrs. Wayne quit walking.

[5]            
Within approximately four hours after the accident, Mrs. Wayne had
constant headaches, pain and swelling in her left shoulder, and her range of
motion was impaired. That evening, Mrs. Wayne had difficulty sleeping and was
awake off and on during the night.

[6]            
The following day, she went to see her family doctor of over 20 years,
Dr. Ritenburg, who prescribed medications to relax Mrs. Wayne’s muscles and to
help her sleep.

BACKGROUND

[7]            
Mrs. Wayne, at the time of the trial, was 72 years old and a widow. Mrs.
Wayne lives alone in her single-family dwelling that she and her family had
lived in for over 32 years. She was the mother of four adult children, one of
whom died in 2010.

[8]            
Mrs. Wayne was a homemaker throughout her marriage. Both before and
after the death of her husband in 2002, Mrs. Wayne was responsible for the
maintenance inside and outside of her home. Her husband, who worked for the
railway, was home usually one day on the weekends.

[9]            
Mrs. Wayne’s home is located in the Aberdeen area of Kamloops. That area
has more snowfall than some of the other areas in Kamloops. Mrs. Wayne’s home
is a two-storey, three-bedroom home, and it has a basement. The bedrooms, the
family room, and one bathroom are located upstairs. Downstairs is the living
room, dining room, kitchen, and a bathroom.

[10]        
The floors in the downstairs area are tiled with the exception of the
living room area, which has a wood floor with an area rug.

[11]        
The upstairs rooms, except for the bathroom which is tiled and Mrs.
Wayne’s bedroom whose floor is wood, are carpeted.

[12]        
Mrs. Wayne parks her car next to her house on a driveway that stretches across
to her neighbour’s house. The driveway appears as one driveway, yet both Mrs.
Wayne and her neighbour can use the driveway without interfering with the
other. This driveway is wide with a short, sharp, slope. Mrs. Wayne shovelled
her driveway before the accident. It was not unusual for her neighbour to come
over and shovel it for her. This neighbour is now moving out of the country.

[13]        
The street on which Mrs. Wayne’s house is located does not have a
sidewalk. From the street side there are tall cedar shrubs that front her lot
and obscure a full vision of her house. The cedars require pruning, and Mrs.
Wayne hires someone about once a year to do that work. The front yard and the
cedars are about three feet above the street. The cedars are supported by a
rail retaining wall horizontally located on the front street side of the house
and parallel along part of the driveway.

[14]        
Entry into the front of Mrs. Wayne’s home is from the driveway, up three
steps, along a short sidewalk, and up two steps onto a deck to the front door.
Prior to the accident, she shovelled all of these areas. At the front of the
house there is an area of lawn between the deck and the cedar shrubs. At the
sides of and in the back and front of the house is lawn that butt up to narrow
areas along the house that are covered in bark mulch.

[15]        
Mrs. Wayne’s back yard is in grass, an area longer and wider than the front
yard, and it abuts a retaining wall of blocks about three feet in height. Above
the retaining wall are juniper shrubs which are not pruned at this time. The
rest of this area, behind the juniper shrubs, is a steep piece of land left in
its natural state with a few small trees and some grass.

[16]        
I have described Mrs. Wayne’s house and the area surrounding the house,
as Mrs. Wayne testified that before the accident she maintained all of this,
except the annual pruning of the cedar trees.

BEFORE THE ACCIDENT

[17]        
Prior to the accident, Mrs. Wayne planted flowers, both annuals and
perennials, in the mulched areas, and maintained and planted flowers in pots. Prior
to the accident, she would be outdoors for many hours filling her pots for
planting, carrying the pots and arranging them throughout her yard, and
trimming the juniper shrubs. She took pride in her garden. Ms. Buchanan
testified that her mother’s garden reflected her.

[18]        
She moved her hoses daily to water her lawns in the spring and summer
seasons. She was able to cut her lawn, care for and maintain the slope in the
back yard of her house, which required trimming her junipers and weed whacking
the grass on the hill.

[19]        
Before the accident, Mrs. Wayne washed both the inside and outside
windows of her home.

[20]        
Mrs. Wayne competes in walking marathons where she walks fast with her
arms pumping. She trains for these competitions. Prior to the accident, she
travelled to Las Vegas to compete. Two months after the accident, she travelled
to Seattle for a competition where she had competed in marathons previously.
She has entered other competitions. These competitions range from five to 17-kilometre
walks. When in training for these competitions, she walks 19 kilometres three
times a week. When not training for a competition, she walks three to six miles
a day, depending on weather conditions, either in her neighbourhood, other
neighbourhoods in the city, or on the indoor or outdoor track at TCC.

[21]        
In addition to walking daily, Mrs. Wayne participates in circuit classes
at TCC. Mrs. Wayne golfed with a ladies group and managed to have a
hole-in-one. She does not golf competitively. Her golfing partner died in 2011,
and she has not golfed since because of the accident.

[22]        
Mrs. Wayne has been physically active for most of her life. She has
always practiced good nutrition and, despite growing older, has maintained
complete independence and insists on it.

[23]        
Mrs. Wayne nursed both her late husband and her daughter in her home
until their deaths.

POSITIONS

The Plaintiff

[24]        
The Plaintiff is seeking $60,000.00 for non-pecuniary damages and
$13,900.00 for future housekeeping costs, $2,937.00 for special damages, and
costs.

The Defendants

[25]        
The defendants acknowledge that the plaintiff was injured in the
accident, and the neck, resulting headaches, and shoulder injury were caused by
the accident.

[26]        
The defendants argue that the award for Mrs. Wayne’s non-pecuniary
damages should be between $10,000.00 and $12,000.00. The non-pecuniary damages
should include any loss of housekeeping capacity “as not being significant enough
to justify a separate claim,” and the award for special damages is $2,349.00.

AFTER THE ACCIDENT

[27]        
Mrs. Wayne’s injuries are to the left side of her neck and shoulder. She
finds that by doing activities, in particular performing activities which
require her to move her head forward, back and up, trigger headaches. Pain can
trigger headaches. These headaches could last a day or as much as three days.
They were debilitating, causing her activities to cease, and confined her to her
couch until the headaches ended.

[28]        
As a result of the accident, Mrs. Wayne was unable to prune her juniper
shrubs and lessened her activities in her yard, and she was unable to move her
pots and often unable to fill the pots with soil.

[29]        
Mrs. Wayne testified that the things she did before the accident and
could no longer do after the accident upset her. Her concern is that the
accident has caused a loss of some of her independence.

[30]        
Washing outside and inside windows of her home caused her pain as the
cleaning of the windows required the overhead movement of her neck which
triggered headaches.

[31]        
Mrs. Wayne was unable to shovel her driveway due to her neck injury.

[32]        
As to Mrs. Wayne’s indoor homemaking activities, the accident has
prevented Mrs. Wayne from vacuuming, washing her tiled floor, washing her walls
and the inside of her windows of her home. She would spot wash her tiled floors
or use a dry mop instead of washing her floors.

[33]        
Mrs. Wayne is able to do her own shopping, prepare her meals, wash her
dishes, clean her bathrooms, do her laundry, and make her bed.

[34]        
On three occasions and after the accident, Ms. Buchanan came in and
washed her mother’s floors. Her grandson came over on a number of occasions and
worked outside doing the tasks that Mrs. Wayne was unable to do, such as putting
away her pots, covering her air conditioner, as well as putting away her hoses
for the winter. Her grandson spread bark mulch around the pots and took garden
refuge away from her property. These were all tasks that Mrs. Wayne had always
performed. On one occasion, for three hours work, Mrs. Wayne paid her grandson
$50.00; a decision she made. Her grandson did not request any payment.

MEDICAL EVIDENCE

[35]        
The medical evidence before the court is a report from Dr. Ritenburg dated
May 22, 2012. Two physiotherapists testified as to the treatment they provided
to Mrs. Wayne.

[36]        
When Dr. Ritenburg first saw Mrs. Wayne she complained of neck pain,
headaches, shoulder ache and muscle tenderness. Dr. Ritenburg prescribed
medication, suggested heat therapy, and referred her to physiotherapy. Dr. Ritenburg
found Mrs. Wayne to be “tender over the left paravertable muscles and left
trapezius.”

[37]        
At her next appointment on April 13, Mrs. Wayne complained to Dr. Ritenburg
of headaches “… going up the back of her neck and into her head along the
left occipital nerve.” Dr. Ritenburg prescribed additional medication to be
used “as needed,” as well as a cream.

[38]        
By May 9, 2011, Dr. Ritenburg reports that Mrs. Wayne had increased her
range of motion in her neck. Dr. Ritenburg noted that Mrs. Wayne still had
tenderness along the muscles described by Dr. Ritenburg in Mrs. Wayne’s first
visit to her. Mrs. Wayne reported to Dr. Ritenburg that “Bending up and down
seemed to worsen her pain.”

[39]        
During the visits to Dr. Ritenburg on June 16, August 10 and September
26, 2011, the muscle pain continued in the same places in the neck and
shoulder. Dr. Ritenburg stated on September 26, 2011 that despite the continued
pain in the neck and shoulder “she had good range of motion.” Mrs. Wayne
continued to complain of headaches at her visit to Dr. Ritenburg on November
28, 2011.

[40]        
At Mrs. Wayne’s visit with Dr. Ritenburg on November 28, 2011, she told
Dr. Ritenburg that she “felt she was slowly improving.” Up to this time, Mrs.
Wayne was doing light housework and things she described she could do and
continued with her walking. By this time, she had taken a pre-planned trip to
Great Britain, Scotland and Ireland with relatives. This trip occurred in May
of 2011.

[41]        
She participated in a walking marathon in Seattle. She felt her time was
not as good as it had been in the past.

[42]        
The defence pointed out to Mrs. Wayne that she used half of her
prescription Tramacet during her overseas trip and she still had half of the
remaining pills. This medication, prescribed for her by Dr. Ritenburg, was
prescribed on April 13, 2011 and to be used “as needed.”

[43]        
Mrs. Wayne testified that she did not like taking medication. I took
this to mean that she consumed medication as prescribed and, in this case, as
required. The medication was for the treatment of pain.

[44]        
Mrs. Wayne saw Dr. Ritenburg on March 1, 2012, at which time she
reported to Dr. Ritenburg that she “… still had episodic headaches but less
severe…” At that time, she reported to Dr. Ritenburg as having soreness in
the left upper arm.

[45]        
On March 26, 2012, Mrs. Wayne saw Dr. Ritenburg for swelling and redness
in her upper arm which Dr. Ritenburg concluded “…was probably due to
acupuncture or ice.” I have inferred that this was caused by her physiotherapy
treatment. A bone scan was done, the results of which were normal.

[46]        
On April 2, 2012, Mrs. Wayne saw Dr. Ritenburg complaining of a sore
left arm and neck pain. X-rays were taken. Dr. Ritenburg prescribed medication.
The results of the x-ray showed “some facet joint arthritic changes, but no
instability. Her left shoulder had no serious abnormalities found.”

[47]        
Dr. Ritenburg opines:

My opinion of the injuries that
Mrs. Wayne developed from her motor vehicle accident is that of soft tissue
injury causing myofascial pain. This was prolonged, more than likely because of
her preexisting degenerative changes in her neck as well as her age. Recovery
was somewhat slow. She had been in good physical health prior to the accident
and she made every effort to make herself as physically active as she could
subsequent to the accident. I anticipate that the patient will have a slow
and gradual recovery over this next year. She should still be cautious of doing
heavier housework and yard work as it would possibly re aggravate this neck and
shoulder problem again in the future. [My emphasis]

[48]        
Mrs. Wayne had physiotherapy recommended by her doctor. She had 22
treatments. The treatments consisted of manual therapy techniques, exercises,
acupuncture and intramuscular stimulation (“IMS”). Mrs. Wayne had some relief
from the IMS treatments. Eventually these treatments aggravated her injuries,
and she reported nausea and fatigue from the IMS treatments.

[49]        
Mrs. Wayne’s testimony corresponds with what she told Dr. Ritenburg. Dr.
Ritenburg’s advice to Mrs. Wayne is, and I repeat, “She should still be
cautious about doing heavier housework and yard work as it would possibly
re-aggravate this neck and shoulder problem again in the future.” I interpret
these words to mean that if she continued to do the work she had previously
done, such as lifting her potted plants, trimming her juniper shrubs, weed
whacking the slope in the back yard, snow shovelling, and doing her floors and
vacuuming as she had done in the past, that she would possibly re-aggravate her
neck and shoulder.

[50]        
I accept, as a result of not being able to do some of these activities
that Mrs. Wayne did before the accident, she lost some of her independence.

[51]        
By March of 2012, Mrs. Wayne said she had reached 85 percent recovery.
This is echoed by a remark that she made to Mr. John Howick, who provided
physiotherapy to her. Mrs. Wayne last received a physiotherapy treatment in
August of 2012. Dr. Ritenburg states that she expects Mrs. Wayne will gradually
and slowly recover this next year. This would be attained two years after the
accident.

CASE LAW OF THE PLAINTIFF AND THE DEFENDANTS

[52]        
The plaintiff has cited the following cases to support a damage claim
for non-pecuniary damages of $60,000.00.

[53]        
In Engqvist v. Doyle, 2011 BCSC 1585, the plaintiff was a 74 year
old female who suffered injuries in two motor vehicle accidents. The plaintiff
hit her head on the steering wheel. Despite a rotor cuff injury and a bout of
tendonitis in her left shoulder, she was physically active and fit. She
bicycled, ran, and walked to preserve her fitness. The plaintiff lived in her
own home, did all her own housework, did all her own gardening which consisted
of lawn care, planting of her perennials and annuals, and painted. The
plaintiff had pain in her neck, back, over her right scapular and discomfort
which radiated down and into her arm and hand. Mr. Justice Rogers found that
the disease in her neck “was entirely asymptomatic before the accident.”

[54]        
Some of the plaintiff’s teeth had been jarred loose in the accident and
required treatment. The plaintiff’s arm was painful when aggravated by
activities. The court found the pain disabling. The plaintiff was able to do
her housework, but it took her longer to do it. She was able to garden, but had
to scale it back. She could not push a lawn mower and could not do her usual
yard maintenance, such as hedge trimming. She took medication daily. Facet rhizotomy
and nerve blocks were prescribed. The nerve blocks were painful. As a result of
her injuries, the plaintiff was unable to ride her bike or play golf,
curtailing her lifestyle. The plaintiff was awarded $65,000.00 for
non-pecuniary damages.

[55]        
In Larlee v. Shier, 2008 BCSC 1610, the female plaintiff was 62
years old and age 59 at the time of the accident. She was employed. She
suffered neck, shoulder, and soft tissue injuries which caused headaches, as
well as an injury to her knee and elbow. The knee and elbow injuries resolved quickly.
The pain the plaintiff suffered interfered with her sleep. She was unable to do
her housework, nor tend to her garden for which she had a passion. Three years
after the accident, Madam Justice Morrison found:

[58] In my view, there has
been a significant loss of enjoyment of life for this plaintiff. She suffers
the pain and discomfort that she has described while working, and particularly
while sitting at a computer, which involves much of her day. She will continue
to work. Perhaps even more significantly, she has and will continue to suffer
the loss of enjoyment of life that has occurred in her life beyond work. There
has been a significant and negative change in the lifestyle of Mrs. Larlee,
ranging from her day-to-day household activities, her passion for gardening,
her lifelong involvement with the piano and the accordion, and an active
lifestyle which involved vacations and other activities. Her pain is chronic
and ongoing.

[56]        
The plaintiff was awarded $60,000.00 for non-pecuniary damages.

[57]        
Mrs. Wayne’s injuries do not have the significance of those of Engqvist
and Larlee, and the effect on her lifestyle as those plaintiffs.

[58]        
The defendants rely on Dolha v. Heft, 2011 BCSC 738 and Liu v.
Thaker, 2012 BCSC 612.

[59]        
In Dolha, damages for pain and suffering were awarded at
$10,000.00 for a soft tissue injury. The plaintiff’s initial complaints were
pain to the neck and upper back and low back pain associated with dizziness and
headaches. The dizziness and headaches lasted one week. The plaintiff’s
symptoms were intermittent headaches, sore neck and difficulty sleeping. The
headaches were severe for the first few months and resolved themselves within
six months of the collision. According to the testimony of the plaintiff, the
back and neck pain slowly improved, resolving itself 18 months after the
accident. The court found that there was no medical evidence to support the
lengthy recovery period. The court found that the accident had not affected the
plaintiff’s social life, work or recreational activities. The court found at
para. 18:

… For the most part the
plaintiff’s life was unaffected by the pain she experienced from the injuries
caused by the accident. The plaintiff’s affidavit also describes the pain she
experienced in very vague, generalized terms. She does not provide a
description of the nature or severity of the pain that would permit the court
to evaluate its impact on her mentally or physically

[60]        
In Liu, the plaintiff, a 28 year old man, was involved in two
accidents about a month apart. The plaintiff acknowledged that he could move
his neck right after the accident. The plaintiff testified within approximately
two months of the accident he had improved by 70 percent, and at the three month
period after the accident 90 percent. The court found that the plaintiff had a
minor soft tissue injury which largely resolved four months after the accident.
Mr. Liu was awarded $10,000.00 for pain and suffering, $900.00 for loss of
housekeeping and special damages.

[61]        
None of the cases cited by either the plaintiff or the defendants
capture the appropriate award for non-pecuniary damages for Mrs. Wayne. The plaintiffs
in both cases cited by the defendants were younger than Mrs. Wayne. Though
their injuries were similar, their recovery times were much shorter than Mrs.
Wayne’s. The effect on their lives was not as significant as Mrs. Wayne’s. In Liu,
there was a complete recovery in four months. In Dolha, there was no
evidence to support the lengthy recovery period.

ANALYSIS

[62]        
Mrs. Wayne was an honest witness who did not exaggerate the nature of
her injuries, nor the nature of the pain that she experienced. Her witnesses
were equally honest and helpful. Mrs. Wayne is a woman who values good health
and she does everything to sustain her good health. She prides herself in her
independence. At the time of accident, she had total independence in her life.
Her family came to her home for Christmas dinner that she prepared each year. Before
the accident she was able to remove the turkey from the oven without
assistance. Now she requires assistance. She did not have to call upon her
children to provide her with any services or help. After the accident, some of
her independence was lost and she had to call upon her daughter and grandson
for some assistance. In the future, she will be required to call upon workers
to perform the tasks that she did before the accident.

[63]        
Mrs. Wayne is stoic. She made every effort to recover from her
injuries.She continued her walking and her travelling and will do so in the
future. She is on a fixed income and has not been able to afford to hire people
to do the work both indoors and outdoors at her home that she could not do
after the accident. She has done the best she could with some help from her
daughter and grandson, and a neighbour who gratuitously did some snow
shovelling for Mrs. Wayne.

[64]        
The defendants argue that the plaintiff suffered three incidents after
the accident. From the defendants’ written submissions they are:

a.         Flare up of a previous injury to her lower
back in July 2011;

b.         Symptoms in her left upper arm from March to
about May 2012; and

c.         A fractured right
arm on September 26, 2012 when the plaintiff fell while at a wedding.

[65]        
The flare up in her lower back was insignificant and did not interfere
with her activities or independence. Her upper arm symptoms settled within two
and a half months and likely related to her physiotherapy treatments. They were
not debilitating.

[66]        
The plaintiff broke her arm at her son’s wedding on September 26, 2012.
The accident occurred when the plaintiff went to move a vase of flowers which
she thought would interfere with the wedding photographs being taken. She
unwittingly stepped on the bride’s train which caused her to slip and break her
arm. She remained at the wedding, sat on the couch with ice on her arm and had
a glass of champagne. Later, she was taken to the emergency department of the
hospital where her arm was treated. Although Mrs. Wayne is not yet driving her
car as a result of her broken arm, there was no medical evidence before me that
she will not have a full recovery.

[67]        
In their argument, the defendants suggest that Mrs. Wayne’s grandson and
daughter should meet Mrs. Wayne’s household, gardening and snow removal
obligations that she can no longer perform. That is not the law. The defendants
pointed to Mrs. Wayne not seeing her doctor after April 2012 and her physiotherapist
after August 2012. Mrs. Wayne is perfectly capable of determining when she
should consult her doctor and physiotherapist. Mrs. Wayne concluded that her
injuries had plateaued, and she is perfectly capable of coming to that
conclusion, which I accept.

[68]        
Further, Mrs. Wayne is capable of concluding and, I accept, that
pursuing her golfing is likely to cause pain to her shoulder.

[69]        
The defendants submit that Mrs. Wayne is able to afford to take trips,
but did not hire people to perform duties in and outside her home. As to how
Mrs. Wayne spends her money is for her to decide and not the defendants.

[70]        
Given the factors set out in Stapley v. Hejslet, 2006 BCCA 34, I
assess Mrs. Wayne’s non-pecuniary damages at $30,000.00.

FUTURE CARE

[71]        
The care sought by the plaintiff for some housekeeping, snow removal and
yard care is reasonable and modest. Mrs. Wayne seeks $13,900.00.

[72]        
The defendants object and say that this should be included in the
non-pecuniary damages that they state should be fixed at $12,000.00.

[73]        
The defendants did not dispute the manner in which the plaintiff calculated
her cost of future care. Her cost of future care is based on the cost of snow
removal during the winter, yard maintenance from May 1 to September 15, and
modest housekeeping costs. These costs all relate to items that Mrs. Wayne
cannot perform as a result of the accident. I award Mrs. Wayne $13,900.00 for
cost of future care.

SPECIAL DAMAGES

[74]        
The defendants dispute one physiotherapy treatment and the mileage to
attend the physiotherapy, and the spin tone and stretch classes at TCC.

[75]        
I will not allow the classes at TCC as Mrs. Wayne would have enrolled in
these classes, or some other classes, had the accident not occurred. She did
not pursue one set of classes due to her broken arm.

[76]        
As to the physiotherapy treatment, Mrs. Wayne was in her regular
physiotherapy treatment and it arose in that context.

[77]        
I will award Mrs. Wayne $2,755.00 in special damages.

COSTS

[78]        
Mrs. Wayne will have her costs and disbursements as fixed by Rule 15-1(15)
and (17) of the Supreme Court Civil Rules. This trial took two and a
half days.

SUMMARY

[79]        
Mrs. Wayne is awarded:

a)    non-pecuniary
damages in the amount of $30,000.00;

b)    cost of future
care in the amount of $13,900.00;

c)     special
damages in the amount of $2,755.00; and

d)   
costs pursuant to Rule 15-1(15) and (17) of the Supreme Court Civil
Rules.

“H.C.
Hyslop J.”

HYSLOP
J.