IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130322

Docket: 45459

Registry:
Vernon

Between:

Monika
Ruchelski

Plaintiff

And

Ricki
Lee Moore and Cheryl E. Gareb

Defendants

Before:
The Honourable Mr Justice Abrioux

Reasons for Judgment

I         INTRODUCTION

[1]            
Monika Ruchelski seeks damages for the injuries she sustained in a motor
vehicle accident which took place on December 23, 2007 (the “Accident”).

[2]            
The Accident occurred on L & A Road close to the intersection with Silver
Star Road in Vernon, BC. The plaintiff had lost control of her vehicle in
extremely icy conditions and had subsequently come to a stop. The defendant
Ricki Moore, who was operating a motor vehicle owned by the defendant Gareb, while
approaching Ms. Ruchelski’s vehicle from the rear, lost control while trying to
go around it. A collision resulted. The plaintiff sustained various injuries
including bruising and sprains of the left hand and arm, a soft tissue injury
to the neck, coccygodynia together with chronic left gluteal, and leg pain.

[3]            
Liability for the Accident is in issue. The plaintiff seeks damages for
pain and suffering, past and future loss of earning capacity, special damages
and cost of future care.

II        BACKGROUND

[4]            
Ms. Ruchelski is 71 years old. She was born in Germany and moved to
Winnipeg in 1965. She has two children, a son in Winnipeg and a daughter,
Birgit Babott, who lives in Vernon. The plaintiff lives in a suite in her
daughter’s home.

[5]            
The plaintiff has the equivalent of a grade 10 Canadian education. In
1979, she divorced her husband. She was then in a lengthy common-law
relationship with George Hahlberg. The plaintiff and Mr. Hahlberg lived in
Winnipeg for several years. In 2000 they moved to Gimli, Manitoba. Mr. Hahlberg
passed away in 2007.

[6]            
The plaintiff has had a variety of occupations over the years. These
included working in a restaurant and a store that sold windows. In 2001, she
commenced cleaning houses in Gimli. She received referrals from a seniors’
centre. She had clients for whom she would work for year-round. She would also
do spring and fall cleaning for cottages located in the Gimli area. She charged
$12 – $15 an hour, depending on the type of work.

[7]            
The plaintiff continued cleaning houses until Mr. Hahlberg became ill in
2005. This was a very difficult time for her. She suffered from depression and
was on medication. She was taking medication upon Mr. Hahlberg’s passing.

[8]            
The plaintiff and Mr. Hahlberg had a very active lifestyle when they
lived in Gimli. Mr. Hahlberg had children and grandchildren who resided in
Winnipeg. The couple would visit them regularly. Ms. Ruchelski’s grandchildren
would come from British Columbia and stay with them in Gimli during the summer.
She also travelled to Vernon to see her daughter and grandchildren.

[9]            
The plaintiff enjoyed swimming, line dancing and biking. She also
participated in a seniors’ exercise program once a week. She walked her dog
regularly. She was a good swimmer. In addition, she would spend much of her
time outdoors, walking, attending to her garden, etc.

[10]        
It was the plaintiff’s evidence that she never had to take time off from
these activities due to health reasons prior to the Accident.

[11]        
Following Mr. Hahlberg’s passing, the plaintiff decided to move to
Vernon to be with her daughter, son-in-law and grandchildren. Mr. Hahlberg’s
children had advised her that although she could stay in the house in Gimli,
she would have to vacate it during the summer so that they could have access to
it. She decided it would be in her best long-term interests to leave Gimli and
move to Vernon.

[12]        
Prior to moving to British Columbia, the plaintiff discussed work
opportunities with her daughter. Ms. Babott had been involved in a business
making frozen dinners. She discussed using those contacts to develop a
housekeeping business with her mother.

[13]        
The plaintiff and Ms. Babott decided they would do the bigger cleaning
jobs together, each hoping to develop their own bank of smaller jobs. It was
the plaintiff’s goal to make approximately $500 per month doing this, which would
provide extra funds to allow her to travel to Europe. At a wage of $15, she
hoped to work approximately six hours per week.

[14]        
In May 2007, Ms. Babott and her husband came to Gimli in order to assist
the plaintiff with her move. Around this time, Ms. Babott developed health
problems, including depression, which required treatment for several months.

[15]        
The plaintiff arrived in Vernon in May 2007. Until September of that
year when her daughter’s condition improved, the plaintiff would do the
cooking, laundry and gardening for her daughter’s family.

[16]        
During this timeframe, the plaintiff also started to get involved in fitness
and community activities. She went line dancing twice a week at the seniors’
centre. In addition, she would bicycle for approximately one hour a day when
the weather permitted. She brought her dog with her from Manitoba and would go
for lengthy walks on a daily basis. She also swam at the recreational centre.
She joined a church and went to Bible study once a week.

[17]        
Due to Ms. Babott’s health problems, the house cleaning business did not
commence prior to the Accident. Ms. Babott’s condition, however, had improved
to the point that she started cleaning houses in the early part of 2008. Due to
the injuries sustained in the Accident, the plaintiff was unable to work in the
business. It was Ms. Babott’s evidence there was sufficient additional work for
her mother to do had she been physically able.

[18]        
The plaintiff did have some health issues prior to the Accident. She had
a history of low back pain, although it was her evidence this did not cause any
difficulty after 2004. Specifically, she was able to work as a house cleaner
until Mr. Hahlberg got sick. She also used an inhaler for bronchitis and had been
receiving prescriptions for a thyroid problem since 1984. She testified that this
did not affect her ability to work prior to the Accident.

III        THE ACCIDENT

[19]        
The plaintiff testified that the Accident occurred when she was on her
way into Vernon to meet a friend for lunch. There is one lane of traffic in
each direction on L & A Road. She had walked her dog earlier that day and
believed the road conditions were safe for her to drive. She had not previously
experienced difficulty with ice on this area of the road.

[20]        
Approximately 60 to 70 feet from the stop sign at L & A Road and Silver
Star Road, there is a crest of a hill. It was Ms. Ruchelski’s evidence that when
she went over this crest, she was travelling at approximately 25 km/h. She was
not paying particular attention to her speed but was focusing on the condition
of the road. Shortly after she crested the hill, she came across a patch of
ice. Her vehicle started sliding to the right. She applied the brakes but could
not bring her vehicle to a stop. It ultimately came to rest partly in the ditch,
with her vehicle blocking a portion of the lane she had been traveling in.

[21]        
The plaintiff stated that she tried to back up for approximately five
minutes before she got out of her car. She did not turn on the emergency
lights. When she did get out she realized the road surface was very slippery.
She was standing next to her car in the middle of the lane she had been
traveling in. She had good grips on her shoes.

[22]        
Since her vehicle was stuck on the side of the road, the plaintiff
decided to get out and cross the road to make a phone call. She checked for
traffic prior to doing so. In particular, she looked behind her. She saw it was
clear and safe to get out. She noticed there was a vehicle proceeding in the
opposite direction. She waited for it to pass. While she was standing by her
vehicle, she heard a “bang”. This noise was caused by the defendant’s vehicle
contacting the rear of the plaintiff’s car, which then struck the plaintiff in
the left buttock area. According to Ms. Ruchelski, she was projected
approximately two metres and landed on her left buttock.

[23]        
It was the plaintiff’s evidence that Ms. Moore helped her stand up. The
defendant’s cell phone was used to call Ms. Babott so that she could come to
the scene of the Accident.

[24]        
It was Ms. Moore’s evidence the plaintiff fell when they were in the
vicinity of the defendant’s car at approximately the time a phone call was
being made to the plaintiff’s daughter.

[25]        
In cross examination, the plaintiff initially indicated she did recall
falling when the defendant offered her the use of her cell phone. Later,
however, she testified she could not recall if she fell on two occasions. She
was clear, however, she initially fell when the defendant’s car hit her
vehicle. She was also clear that she was on the ground when the defendant
initially approached her and then helped her up. She denied that the fall in
which she was hurt occurred close to the defendant’s vehicle at about the time
the phone call to her daughter was being made.

[26]        
It was also the plaintiff’s evidence that the Accident scene was
extremely slippery. Ambulance attendants, police officers and other individuals
at the scene lost their footing and fell down.

[27]        
The defendant Moore lives close to the Accident scene. At the time of
the Accident she was 30 years old and was a full-time student. She would travel
L & A Road 10 to 12 times a week. She estimated the distance from the crest
of the last hill to Silver Star Road was approximately 60 to 70 feet.

[28]        
It was the defendant’s evidence that after she drove over the crest, she
saw the plaintiff’s motor vehicle ahead of her. Its front passenger wheel was
in the ditch. The rest of the vehicle was at a 45 degree angle encroaching into
her lane. In fact, it was the defendant’s evidence that almost the entire lane
was blocked by the plaintiff’s vehicle. When she first saw the plaintiff’s
vehicle, it was approximately 50 feet away. She had been traveling at approximately
50 km/h.

[29]        
Ms. Moore then slowed down and made the decision to go to the left
around the vehicle, which appeared to be abandoned. She did not see anyone
standing by the vehicle. She commenced her maneuver but saw another vehicle
coming towards her. She attempted to go back into her lane but “hit an icy
patch”. In direct evidence, she said she had not been aware of the ice before.
She applied her brakes and then slid into the back of the plaintiff’s vehicle.
The first contact was with the rear bumper on the passenger side. The
defendant’s vehicle proceeded to slide along the passenger side of the
plaintiff’s vehicle.

[30]        
The defendant testified that when her vehicle came to a rest, she got
out. That was when she first saw the plaintiff, who appeared by the driver’s
side door of the plaintiff’s vehicle. Ms. Moore denies helping the plaintiff
get up. According to the defendant, the plaintiff was standing by the time she
exited the driver’s door. She appeared to be fine. Ms. Moore apologized and
indicated she had not seen the plaintiff. According to Ms. Moore, the plaintiff
indicated she had been bending over to put on spikes so that she could cross
the road.

[31]        
Ms. Moore testified that she and the plaintiff started to walk to the
defendant’s car to get the defendant’s cell phone. On the defendant’s evidence,
while in the process of handing the phone to the plaintiff, the defendant
started to slip. This caused her to contact the plaintiff who then slipped into
the defendant’s car and then onto the ice. It was at this time that the
defendant assisted the plaintiff to get up. She asked her if she was fine, and
was told that she was.

[32]        
According to the defendant, she dialed the phone number given to her by
the plaintiff. She contacted her daughter. The defendant called 911 and in
response to an inquiry as to whether anyone had been injured, she asked the
plaintiff again if she sustained an injury and was told she had not. Ms. Moore
then called her father who later arrived at the scene.

[33]        
While the plaintiff and defendant were talking at the Accident scene, a
truck arrived. The plaintiff appeared to know the driver. He got out of the
truck and slipped and fell on the ice. When the defendant’s father arrived, he
also fell on the same icy patch.

[34]        
The defendant testified that when the plaintiff’s daughter arrived she
had a brief discussion with her. She believed the daughter made a comment about
her mother having a bad back and she wanted to make sure it had not been
aggravated in the incident. Ultimately, the plaintiff was taken away by
ambulance. This surprised the defendant based on the plaintiff’s comments that
she had not been hurt. Both vehicles were towed away from the Accident scene.

[35]        
On cross examination, the defendant agreed that the road leading from her
house to the Accident scene had “never been that slippery”. She also agreed
that under those conditions she ought to proceed with caution and drive at a
speed slower than the posted limit. She stated that when she first saw the
plaintiff’s vehicle, it looked as if it had slid off the road. She also stated
the vehicle appeared to have been abandoned. She did not attempt to stop at
this point. Rather, she attempted to maneuver around the vehicle that was
blocking her path.

IV       LIABILITY FOR THE ACCIDENT

[36]        
It is the plaintiff’s position that the defendant Moore was entirely
responsible for the Accident in that:

·      
she had an obligation to be able to bring her vehicle to a stop if
faced with an obstruction on the road in front of her;

·      
she also had an obligation not to cross over the centerline
unless it could be done safely. This is particularly the case near an
intersection: Johel v. Insurance Corporation of British Columbia, 2012
BCSC 166 at paragraph 37;

·      
in the case of a rear-end collision there is an onus on the following
driver to show he was not at fault: Baker v. Cade, [1999] B.C.J. No.
239 at para. 115 (S.C.);

·      
the defendant agreed that the road leading from her house to the
Accident scene had “never been that slippery” and, due to the road conditions,
ought to have proceeded with caution and at a speed slower than the posted
limit;

·      
the defendant could and should have stopped when she saw the
plaintiff’s vehicle, which was encroaching into her lane. The fact she was able
to slow to a “crawl” from 50 km/h indicates that stopping was an option.

[37]        
Reduced to its essentials, the plaintiff’s submission is that she has established
a prima facie case of negligence by the defendant, Moore. That being the
case, it is for the defendants to present evidence negating the evidence led by
the plaintiff. They have not done so.

[38]        
While the plaintiff did not specifically address the principles set
forth in Fontaine v. British Columbia (Official Administrator), [1998] 1
S.C.R. 424, these did appear to be the legal basis upon which her submissions
with respect to liability were founded.

[39]        
Counsel for the defendants did specifically address Fontaine. He
agreed the principles in Fontaine applied. He submitted that the
conclusion to be drawn from the evidence was that neither the plaintiff nor the
defendant were negligent. Specifically:

·      
even if the defendant ought to have attempted to bring her
vehicle to a stop rather than maneuver around the plaintiff’s vehicle, the
evidence was to the effect she could not have done so even had she tried;

·      
there were a number of people who fell at the scene. This is
evidence of the extremely icy conditions;

·      
the defendant took all reasonable precautions in the
circumstances. There was no evidence that greater precautions would have
avoided the Accident.

[40]        
Nason v. Nunes et al., 2007 BCSC 266, is one of many examples of
the principles in Fontaine being applied in somewhat similar
circumstances. It should be noted, however, that these types of cases are
largely fact driven.

[41]        
In Nason, Russell J. stated:

[53]      It follows that the real force of the plaintiff’s
argument in favour of negligence comes from authorities that assert that a
presumption of negligence arises if a driver’s car leaves the roadway. I agree
with the defendant that the appropriate treatment of this presumption is as
stated by the Supreme Court of Canada in Fontaine v. British Columbia
(Official Administrator), [1998] 1 S.C.R. 424, 46 B.C.L.R. (3d) 1. In that
case, which involved a motor vehicle accident, the Court clarified that the
maxim of res ipsa loquitur should be treated as expired (at ¶ 26-27). Rather,
the trier of fact should weigh the circumstantial evidence with the direct
evidence to determine whether the plaintiff has established on a balance of
probabilities a prima facie case of negligence. If the plaintiff does so, then
the defendant must present evidence negating that of the plaintiff, or the
plaintiff must necessarily succeed (at ¶ 27). The Court clarified that whether
an inference of negligence can be drawn from circumstantial evidence is highly
dependent on the facts of each case (at ¶ 20, 35), and that the strength of the
explanation the defendant must provide will vary in accordance with the
strength of the inference sought to be drawn by the plaintiff (at ¶ 24).

. . .

[55]      In the case at bar, I have concluded that the
plaintiffs have failed to prove that Nunes was negligent. The plaintiffs cannot
rely on the presumption of negligence to shift the onus of disproving
negligence onto Nunes. In any case, I am satisfied that Nunes has
demonstrated that he drove with all reasonable care, and that any presumption
of negligence is rebutted by the fact that the loss of control was initiated by
the rear wheels of the truck hitting the bump between the road surface and the
bridge. As stated by Boyle L.J.S.C. referring to black ice in Loy v.
Deacon, 1985 Carswell BC 1412 at ¶ 18 (S.C.) (eC), “[v]arious normal,
non-negligent factors – braking, accelerating, turning – can cause skidding in
these conditions.” I am satisfied that striking a bump which caused the rear
wheels to lose traction is a sufficient non-negligent explanation for why the
truck began to fishtail.

[56]      Not all accidents will necessarily arise because of
negligence: see Phillips v. Lyle, [1990] B.C.J. No. 212 at ¶ 5 (C.A.)
(QL); Durant v. Lennard, supra, at ¶ 15, per Southin J.A.,
dissenting in the result. Further, where defendants take all reasonable
precautions in the circumstances, they will not be held liable in negligence:
see e.g. McIntosh v. I.C.B.C. (2003), 38 M.V.R. (4th) 80, 2003
BCSC 775 (where the defendant was aware of the risk of encountering
slippery sections or animals on the highway, but, not having encountered either
for 170 kilometres, had taken all reasonable precautions in the circumstances);
Loy v. Deacon, supra (driver not negligent in skidding on black
ice, and mistaken reaction by turning wheels in wrong direction of car not
negligent); Breen v. McKenzie, [1992] B.C.J. No. 1686 (S.C.) (QL)
(plaintiff not noticing anything wrong with defendant’s driving, vehicle
mechanically sound and having all season tires and winter radials on the rear
tires, driver not found negligent); and Goodwin v. Goodwin, 2006 BCSC
218 (a case very similar to the one at bar where the defendant driver was not
found negligent when his car went off the road after unexpectedly encountering
a patch of ice; the driver had slowed to 30 km/h and had not experienced any
slippage until reaching the point where he lost control of the vehicle).

[57]      Here, the evidence suggests that the defendant took
all reasonable precautions to avoid losing traction: he was using all season
tires, he had weight over the rear wheels of the pickup, he had slowed his
speed coming down the hill, and the plaintiffs themselves had no concerns with
the way he was driving. There is no evidence that greater precautions, such as
using snow tires or driving even more slowly, would have been advisable when
the air temperature in Osoyoos was above freezing. Further, there is no
evidence that such further precautions would have prevented the MVA. Therefore,
I find that the plaintiffs have not proven that Nunes failed to meet the
required standard of care in all of the circumstances.

[Emphasis added]

[42]        
In my view, the plaintiff has established a prima facie case of
negligence. As was stated by Finch J.A. (as he then was) in Savinkoff v.
Seggewiss (1996), 25 B.C.L.R. (3d) 1:

 In my view, sliding out of control into the
plaintiff and the stopped vehicle gives rise to an inference of negligence on
the [the defendant’s] part, in that he was either not sufficiently attentive to
the road conditions, or he was driving too fast, or both. It was for him to
explain how this accident could have occurred without negligence on his part,
and on the evidence there is no satisfactory explanation. I would allow the
appeal on the first issue and hold the defendant was negligent.

(at paragraph 28)

[43]        
I have also concluded the defendants have not provided a satisfactory
explanation that the Accident could have occurred without negligence on the
part of the defendant Moore. In fact, the evidence, for the following reasons,
establishes the defendant Moore was negligent in that she was not driving with
reasonable care both prior to and after she saw the plaintiff’s vehicle:

·      
the defendant’s evidence that when she first saw the plaintiff’s
vehicle, she was traveling at or about the posted speed limit of 50 km/h; this
was not appropriate under the circumstances;

·      
the road leading from her house to the scene had “never been 
that slippery”, given her winter driving experiences and having used the road
on a regular basis for many years;

·      
it appeared to her that the plaintiff’s vehicle had slid off the
road;

·      
she did not attempt to stop. Instead, on a downward slope, she
applied her brakes thereby reducing her speed and attempted to maneuver around
the plaintiff’s vehicle, which was blocking most of her lane of travel. She was
then faced with oncoming traffic and had to attempt to return into her lane.
This is when she lost control.

[44]        
I am unable to accept the defendants’ submission that the fact there were
several individuals who fell on the slippery surface at the Accident scene is
indicative of no negligence on Ms. Moore’s behalf.

[45]        
In light of the prima facie case of negligence established by the
plaintiff, it was for the defendants to lead evidence, if it existed, that the
drivers of other vehicles who attended the Accident scene were unable to bring
their vehicles to a stop in a safe manner due to the road conditions. There was
evidence the ambulance attendants, police officers and other individuals
slipped after they exited their vehicles due to the icy surface of the road.
But that is a different issue from leading evidence from which I could conclude
these individuals were unable to bring their vehicles to a safe stop when put
in approximately the same situation as the defendant Moore. Specifically, there
was no evidence led by the defendants that any of the other vehicles which arrived
at the scene after the Accident had difficulty stopping.

[46]        
Accordingly, I find the defendant Moore 100% responsible for the
Accident. I also agree with the defendants’ submission that the plaintiff was
not negligent.

[47]        
I also accept the plaintiff’s evidence that the injuries she sustained
occurred when she was standing beside her vehicle when it was struck by the
defendant’s vehicle. Ms. Moore’s evidence was to the effect that when she first
approached the plaintiff after the impact, she apologized and stated she had
not seen her. Although it was Ms. Moore’s evidence that the plaintiff was
already on her feet when she first approached her, she did not dispute the
plaintiff’s account that the impact between the two vehicles caused the
plaintiff to fall.

[48]        
Accordingly, if there was in fact a second fall as indicated by Ms.
Moore, which the plaintiff could not recall, it would not appear on the
evidence as a whole that it caused the plaintiff’s injuries.

V        DAMAGES

A: The Nature and Extent of the Injuries Sustained by the Plaintiff

[49]        
The medical evidence consisted of a report of the plaintiff’s family
physician, Dr. Barnard, together with reports authored by the physiatrists, Dr.
Adrian and Dr. Laidlow. The plaintiff was also assessed by an occupational
therapist, Ms. Arlana Taylor, for the purposes of preparing a
functional capacity and cost of future care evaluation.

[50]        
The plaintiff testified that after the Accident, the whole left side of
her body was bruised all the way down to her hips. She also had pain in her
left arm and upper body. In the timeframe following the Accident, muscle
relaxants and analgesics were prescribed. The Accident occurred two days before
Christmas 2007. She required a cane to walk since she was unable to put weight
on her left foot.

[51]        
The plaintiff received housekeeping assistance for approximately two
months after the Accident. She found it very difficult to stand. Ms. Babott did
most of the cooking and grocery shopping and also walked the plaintiff’s dog.
Ms. Babott would also assist the plaintiff with vacuuming and heavier household
duties.

[52]        
The plaintiff commenced a course of physiotherapy in late January 2008.
This continued throughout 2008. By the fall of that year, she obtained a second
cane. It was her evidence she required the cane in order to keep her balance
when walking her dog.

[53]        
Ms. Ruchelski also underwent massage therapy treatments.

[54]        
In September 2009, the plaintiff had what she described as a “stumble”. It
occurred when she was walking her dog and her foot gave way. She sustained an
injury to her lower back which required injections. She had difficulties
sitting and lying down.

[55]        
Dr. Adrian assessed the plaintiff in February 2012. He diagnosed her as
having chronic soft-tissue pain in her left buttock and neurological symptoms
to the left leg. In light of the passage of time since the Accident, he viewed the
prognosis for further recovery as poor. He recommended an MRI of the lumbar
spine and pelvis. He noted it was possible these investigations could lead to
potential treatment options.

[56]        
Dr. Adrian was of the view the plaintiff should continue with her home
exercise program in order to maintain her level of fitness. Any improvement
with massage therapy treatments was temporary. He also noted the plaintiff
might benefit from the use of an ankle stirrup brace.

[57]        
Dr. Laidlow who assessed the plaintiff on October 31, 2011, essentially
reached the same conclusions as Dr. Adrian. He was of the view, however, that a
rehabilitation program would assist in the plaintiff increasing her confidence
when walking and also likely lessen the discomfort she felt in the buttock
area. Notwithstanding this view, he was of the opinion it was likely the
plaintiff would continue to have ongoing discomfort in the buttock area in the
future. She would also have numbness in the left foot and lateral leg on a permanent
basis. Dr. Laidlow believed the plaintiff was fully capable of doing all
of her activities around the house and required no assistance. She also did not
require further physiotherapy, chiropractic or massage therapy treatments.

[58]        
For her part, the plaintiff testified that there had been, over time,
significant improvement from the injuries she sustained in the Accident.
Notwithstanding this, her daily functioning continued to be impaired. Prior to
the Accident she was extremely active. She testified how satisfying it was for
her to prepare for the Christmas celebration of Advent.

[59]        
It was the plaintiff’s evidence that although she can prepare her own
meals, she needs the assistance of a stool. The length of time she is on her
feet will increase her symptoms. She also believes she is incapable of walking
safely without a cane.

[60]        
Ms. Ruchelski continues to have numbness in her left foot. This will
cause her foot to give way on occasion. Her counsel submits that the “stumble”
in September 2009 is attributable to her left foot numbness.

[61]        
The plaintiff also underwent pain-blocking injections due to the
aggravation of her back condition.

[62]        
It was Ms. Ruchelski’s evidence that as at the time of trial, she was
unable to participate in many of the activities which formed part of her daily
life prior to the Accident. This included line dancing, bicycling, walking or
driving for any protracted period of time.

[63]        
Ms. Babott testified as to the observations she had made of her mother.
In her view, the plaintiff’s condition is worsening over time in that her
movements were getting progressively slower. She has observed the plaintiff
crying. The plaintiff often appears to be in pain.

[64]        
Ms. Taylor’s opinion is that the plaintiff’s ongoing difficulties
prevent her from working as a housekeeper.

B: Findings of Fact and Conclusions on the Evidence

[65]        
I make the following findings of fact based on my consideration of the
evidence, both lay and expert, as a whole:

(i)       the plaintiff’s original
position immediately prior to the Accident included the following:

·       a
low back condition which had been largely asymptomatic for several years;

·       minor
degeneration to the right knee;

·       occasional
pain in the neck that radiated to the right arm, which was associated with paresethesia
in the little finger of the right hand.

(ii)      prior to the Accident the
plaintiff led an active and fulfilling life. She was looking forward to living
in Vernon with her daughter and family;

(iii)      although the plaintiff
has made a significant recovery from the injuries she sustained in the Accident,
she is left with a quality of life that has been compromised to some degree.
Her ongoing difficulties to her buttock and left leg and foot will result in
her having to lead a more sedentary lifestyle than if the Accident had not
occurred;

(iv)     but for the Accident,
there was a real and substantial possibility the plaintiff would have earned a
modest income cleaning houses. This would likely have diminished as she aged.
The injuries sustained in the Accident have significantly compromised if not
eliminated this financial opportunity.

C: Discussion and Analysis

[66]        
In Dhaliwal v. Loong, 2010 BCSC 612, Russell J. stated:

[148] The role that damages plays is to place the plaintiff,
as much as possible, in his original position. It is not the obligation of the
defendant to put the plaintiff in a better condition than he was in. As noted
in Athey v. Leonati, [1996] 3 S.C.R. 458 at 473-474, 140 D.L.R. (4th)
235, per Mr. Justice Major:

The defendant is liable for the
injuries caused, even if they are extreme, but need not compensate the
plaintiff for any debilitating effects of the pre-existing condition which the
plaintiff would have experienced anyway. The defendant is liable for the
additional damage but not for the pre-existing damage. … Likewise, if there
is a measurable risk that the pre-existing condition would have detrimentally
affected the plaintiff in the future, regardless of the defendant’s negligence,
then this can be taken into account in reducing the overall award. … This is
consistent with the general rule that the plaintiff must be returned to the
position he would have been in, with all of its attendant risks and
shortcomings, and not a better position.

[149] Also, as noted by the British Columbia Court of Appeal
in T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670 at
para. 28, 22 B.C.L.R. (4th) 1:

[28] …. a pre-existing condition,
whether it is quiescent or active, is part of the plaintiff’s original
position.

The Court goes on, at
para. 48, to say:

[48] …. Whether manifest or not, a weakness inherent in a
plaintiff that might realistically cause or contribute to the loss claimed
regardless of the tort is relevant to the assessment of damages. It is a
contingency that should be accounted for in the award. Moreover, such a
contingency does not have to be proven to a certainty. Rather, it should be
given weight according to its relative likelihood.

[67]        
It is within the context of these legal principles and the findings of
fact I have made that the plaintiff’s damages should be assessed.

Non-pecuniary Damages

[68]        
In Jackson v. Jeffries, 2012 BCSC 814, Greyell J. summarized the
law with respect to non-pecuniary damages:

[77]      In Trites, Madam Justice Ker outlined the
purpose and principles of non-pecuniary damages at paras. 188-189.

Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of
enjoyment of life and loss of amenities. The compensation awarded should be
fair and reasonable to both parties …

For the purposes
of assessing non-pecuniary damages, fairness is measured against awards made in
comparable cases. Such cases, though helpful, serve only as a rough guide. Each
case depends on its own unique facts …

[Citations
omitted.]

[78]      In Stapley
v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined the factors to be
considered when assessing non-pecuniary damages at para. 46:

  The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris,       2004 BCCA 146] that influence an award of
non-pecuniary damages       includes:

  (a)
age of the plaintiff;

  (b)
nature of the injury;

 (c) severity and
duration of pain;

 (d) disability;

 (e) emotional
suffering; and

 (f) loss or impairment of life;

 I would add the following
factors, although they may arguably be       subsumed in the above list:

 (g)
impairment of family, marital and social relationships;

 (h)
impairment of physical and mental abilities;

 (i)
loss of lifestyle; and

 (j)
the plaintiff’s stoicism (as a factor that should not, generally speaking,
penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163
(QL), 2005 BCCA 54).

[79] The assessment of
non-pecuniary damages is necessarily "influenced by the individual
plaintiff’s personal experiences in dealing with his or her injuries and their
consequences, and the plaintiff’s ability to articulate that experience": Dilello
v. Montgomery, 2005 BCCA 56 at para. 25.

[69]        
The plaintiff submits that the award for general damages for pain and
suffering should be in the range of $75,000-$85,000. She relies on Love v.
Lowden, 2007 BCSC 1007, and Zubek v. Clarkson, 2000 BCSC 148, as
establishing both the lower and upper end of the appropriate range.

[70]        
The defendants submit that $45,000 would represent an appropriate award.
They rely on Williamson v. Nicholson, 2005 BCSC 922, Crump v. Bonin,
2006 BCSC 1797, and Engqvist v. Doyle, 2011 BCSC 1585.

[71]        
In my view, the injuries sustained by the plaintiff and the effect which
they have had on her functioning, both in the past and in the future, are
generally comparable but somewhat less serious than those sustained in Ms.
Engqvist’s first accident where $65,000 was awarded (Engqvist v. Doyle
at para. 30). I award the plaintiff $60,000 under this head of damages.

Past Loss of Earning Capacity

[72]        
Claims for damages for past and future loss of earning capacity are
based on the recognition that a plaintiff’s capacity to earn money is an asset
that has been taken away: Rowe v. Bobell Express Ltd.,
2005 BCCA 141 at paras. 23-24.

[73]        
The plaintiff submits that but for the Accident, she would have commenced
work cleaning houses with her daughter in January 2008. She testified her plan
was to earn approximately $500 a month. She points to a higher hourly rate for
house cleaners in British Columbia than was the case in Manitoba. Assuming 50
weeks of the year had been worked, she submits she has established an annual
loss of $6,000-$8,000 per year.

[74]        
Accordingly, it is her position that an award for past loss of earning
capacity to the date of trial ranges between $27,600 and $36,800. This amount would
not take into account additional hours that may have been worked on special
cleaning projects in the spring and in the fall.

[75]        
The defendants’ position is that no terms of employment had been settled
between the plaintiff and her daughter prior to the Accident. While the
plaintiff hoped to be paid $15 per hour for a six-hour-work week, Ms. Babott’s
evidence was that her mother would receive $20 per hour for a seven to nine
hour work week.

[76]        
The defendants also say that there was no evidence led by the plaintiff
as to the timeframe when she was prepared to work as a house cleaner. According
to the defendants, the September 2009 “stumble” in which she injured her back
and underwent injections was unrelated to the Accident. Therefore, they submit it
is “doubtful” that any gainful employment would have occurred after this
intervening event. The defendants’ position is that, at most, a nominal amount
of $2,500 should be awarded.

[77]        
I accept the defendant’s submission that the plaintiff has not
established that the incident in September 2009 was attributable to the
injuries she sustained in the Accident. Even if I am wrong in reaching this
conclusion, the incident in question caused an injury to the low back that
affected the plaintiff for several months. According to the medical evidence it
is the ongoing difficulties with the left leg and foot, not the low back, which
impact the plaintiff’s current ability to function.

[78]        
An award for loss of earning capacity, whether it be to the date of
trial or in the future, is an assessment, not a mathematical calculation. When
I take into account:

·      
the fact the plaintiff had not worked as a house cleaner for more
than two years prior to the Accident;

·      
the business was not yet in existence at the time of the Accident;

·      
the plaintiff’s age and occasional difficulties with her lower
back prior to moving to Vernon in 2007;

·      
the likelihood that the plaintiff would have been unable to work
as a house cleaner for an unspecified period of time following the September
2009 incident;

·      
the plaintiff’s evidence that income earned from cleaning houses
would be used to travel is inconsistent with her submission she would have
worked 50 weeks a year.

I award the plaintiff $15,000 for past loss of earning
capacity.

Future loss of earning capacity

[79]        
The law with respect to this head of damages was summarized by Greyell J.
in Simmavong v. Haddock, 2012 BCSC 473:

[95] A claim for loss of future earning capacity raises two
key questions:

(1) has the plaintiff’s earning capacity been impaired by
his or her injuries; and, if so,

(2) what compensation should be awarded for the resulting
financial harm that will accrue over time?

[96] The assessment of loss must be based on the evidence and
is a matter of judgment. It is not an application of a purely mathematical
calculation. The appropriate means of assessment will vary from case to case: Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Pallos v. Insurance Corp.
of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.); Pett v. Pett,
2009 BCCA 232; Rosvold v. Dunlop, 2001 BCCA 1.

[97] The essential task of the court is to compare the
"likely future of the plaintiff if the accident had not happened and the
plaintiff’s likely future after the accident has happened": Gregory v.
Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 32. I
also note that "insofar as is possible, the plaintiff should be put in the
position he or she would have been in if not for the injuries caused by the
defendant’s negligence": Lines v. W & D Logging Co. Ltd., 2009
BCCA 106 at para. 185.

[98] The principles that apply in assessing loss of future
earning capacity were summarized by Low J.A. in Reilly v. Lynn, 2003
BCCA 49 at para. 101:

 The
relevant principles may be briefly summarized. The standard of proof in
relation to future events is simple probability, not the balance of
probabilities, and hypothetical events are to be given weight according to
their relative likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at
para. 27. A plaintiff is entitled to compensation for real and substantial
possibilities of loss, which are to be quantified by estimating the chance of
the loss occurring: Athey v. Leonati, supra, at para. 27, Steenblok
v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). The valuation of the
loss of earning capacity may involve a comparison of what the plaintiff would
probably have earned but for the accident with what he will probably earn in
his injured condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at
93 (S.C.). However, that is not the end of the inquiry; the overall fairness
and reasonableness of the award must be considered: Rosvold v. Dunlop,
… 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644
(C.A.). Moreover, the task of the Court is to assess the losses, not to
calculate them mathematically: Mulholland (Guardian ad litem of) v. Riley
Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Finally, since the course of
future events is unknown, allowance must be made for the contingency that the
assumptions upon which the award is based may prove to be wrong: Milina v.
Bartsch, supra, at 79. …

[99] The test is set out in Perren v. Lalari, 2010
BCCA 140, at para. 32:

 A
plaintiff must always prove, as was noted by Donald J.A. in Steward,
[2007] B.C.J. No. 499, by Bauman J. in Chang, [2008] B.C.J. No. 48, and
by Tysoe J.A. in Romanchych, [2010] B.C.J. No. 168, that there is a real
and substantial possibility of a future event leading to an income loss. If the
plaintiff discharges that burden of proof, then depending upon the facts of the
case, the plaintiff may prove the quantification of that loss of earning
capacity, either on an earnings approach, as in Steenblok, or a capital
asset approach, as in Brown. The former approach will be more useful
when the loss is more easily measurable, as it was in Steenblok. The
latter approach will be more useful when the loss is not as easily measurable,
as in Pallos and Romanchych. A plaintiff may indeed be able to
prove that there is a substantial possibility of a future loss of income
despite having returned to his or her usual employment. That was the case in
both Pallos and Parypa, [1999] B.C.J. No. 270. But, as Donald
J.A. said in Steward, an inability to perform an occupation that is not
a realistic alternative occupation is not proof of a future loss. [Emphasis in
original.]

[100] There are two possible
approaches to assessment of loss of future earning capacity: the "earnings
approach" discussed in Steenblok v. Funk (1990), 46 B.C.L.R. (2d)
133 (C.A.); and the "capital asset approach" discussed in Brown.
As noted in the above quote from Perren, both approaches are correct and
will be more or less appropriate depending on whether the loss in question can
be quantified in a measureable way: at para. 32.

[80]        
The plaintiff’s position is that using the income loss multiplier of the
economist Mark Gosling, an estimated present value of income loss of $6,000-$8,000
per year to age 80 ranges between approximately $45,000 and $60,000. Using the
same multiplier to age 85 provides a range of approximately $60,000-$81,500.
Accordingly, the plaintiff submits an appropriate award is $55,000.

[81]        
The defendants’ position is that there is no realistic possibility the
plaintiff has missed an earning opportunity as a result of the Accident.
Accordingly, there should be no award.

[82]        
The principal factors under this head of damages are the plaintiff’s
age, the degenerative condition of her low back and the fact her desire to work
as a cleaner was to generate some additional income in order to travel.

[83]        
For the reasons I have outlined, I cannot accept there is a real and
substantial possibility of the plaintiff working as a house cleaner until either
age 80 or 85. She is now 72 years old. I conclude an award under this
heading that is fair in all the circumstances is $15,000.

Cost of Future Care

[84]        
In Erickson v. Sibble, 2012 BCSC 1880, Madam Justice Ballance summarized
the principles that apply to a claim for damages for cost of future care:

[316]     The purpose of awarding damages
for the cost of future care is to compensate for a financial loss reasonably
incurred to sustain or promote the mental and/or physical health of an injured
plaintiff. The cost must be justified as reasonable in the sense of being
medically required or justified, and in the sense that the plaintiff will be
likely to incur them based on the evidence. In Kuskis v. Tin, 2008 BCSC
862, the Court summarized the relevant principles in relation to a claim for
cost of future care at paras. 163-164:

An award for the cost of future
care is notional and imprecise in nature: Strachan (Guardian ad Litem of) v.
Reynolds, 2006 BCSC 362. The court must consider evidence regarding what
care is likely in the injured person’s best interest and calculate its present
cost, with appropriate adjustment for contingencies in all of the circumstances
of the case: Courdin v. Meyers, 2005 BCCA 91.

In making an award for future care
costs the court must take into account both what is medically required and what
expenses the plaintiff will likely incur. Items and services that the plaintiff
is unlikely to use in the future cannot be justified as reasonably necessary
aspects of the cost of future care:  Izony v. Weidlich, 2006 BCSC
1315.

(See also, Krangle (Guardian ad litem of) v. Brisco,
2002 SCC 9.)

[317]     Recommendations made by a
medical doctor or made by various other health care professionals are relevant
in determining whether an item or service is medically justified:  Gregory
at para. 38.

[318]    
Dr. Bradford obliquely recommended some sort of rehabilitation to help
improve Ms. Erickson’s back pain and soft tissue injuries. She qualified
her advice by saying that such rehabilitation would have to wait until
Ms. Erickson’s hip and wrist problems had been resolved. Dr. Bradford’s
recommendation and the evidence at large falls short of demonstrating that an
unspecified rehabilitation program relative to Ms. Erickson’s low back is
reasonably necessary to preserve her health within the meaning of the
authorities:  see, for example, Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.); Penner v.
Insurance Corporation of British Columbia, 2011 BCCA 135; Gregory.

[85]        
In Simmavong v. Haddock, Greyell J. also summarized the
applicable principles including the issue of contingencies:

[125] In his text The Law of Damages, loose-leaf ed.
(Toronto: Canada Law Book, updated November 2011, release 20), Professor
Waddams states, at 3-63:

. . . the tenor of Dickson J.’s
judgment in Andrews v. Grand & Toy, [1978] 2 S.C.R. 229, makes it
clear that the court will lean in favour of the plaintiff in judging the
reasonableness of his claim. The court made it plain that the restraint imposed
on damages for non-pecuniary losses was an added reason for insuring the
adequacy of pecuniary compensation.

[126] The test for determining the appropriate award under
the heading of cost of future care is an objective one based on medical
evidence. For an award of future care: (1) there must be a medical
justification; and (2) the claims must be reasonable: Milina, at 84.
Furthermore, future care costs must be likely to be incurred by the plaintiff.
The award of damages is thus a matter of prediction as to what will happen in
future. If a plaintiff has not used a particular item or service in the past it
may be inappropriate to include its cost in a future care award: Izony v.
Weidlich, 2006 BCSC 1315 at para. 74.

[127] Contingencies must also be considered when assessing
cost of future care. In Gilbert, the court discussed adjusting for
contingencies at para. 253:

The extent, if any, to which a
future care costs award should be adjusted for contingencies depends on the
specific care needs of the plaintiff. In some cases negative contingencies are
offset by positive contingencies and, therefore, a contingency adjustment is
not required: see Spehar (Guardian ad litem of). In other cases,
however, the award is reduced based on the prospect of improvement in the
plaintiff’s condition or increased based on the prospect that additional care
will be required: see Morrison (Committee of). Each case falls to be
determined on its particular facts.

[128] An assessment of damages
for cost of future care is not a precise accounting exercise: Krangle
(Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21.

[86]        
The plaintiff’s position is that damages should be awarded in accordance
with the recommendations of Ms. Taylor as set out in her cost of future care
analysis. The “Table of Costs” includes recommendations for medications,
therapies, equipment and services, the latter relating to seasonal homemaking
and snow removal.

[87]        
The plaintiff seeks an award based on annual costs of approximately $4,600
including an annual amount of up to approximately $2,500 for medications.
Applying the cost of care multiplier calculated by the economist Mr. Gosling,
an amount of approximately $34,500 is sought including one-time costs for
certain equipment and physiotherapy and kinesiology treatments.

[88]        
The defendants’ position is that Ms. Taylor has prepared a report that
does not accord with the plaintiff’s actual needs. Examples include an
assumption that the plaintiff is responsible for cutting the back lawn and for
sweeping snow off her stairs in the winter, neither of which is substantiated
by the evidence.

[89]        
It is defendants’ position that the future care claims is “completely
hypothetical and is theoretical guesswork”. They submit an arbitrary award of
$5,000 might be considered.

[90]        
I was generally not assisted by Ms. Taylor’s evidence. I found her to be
overly sympathetic to the plaintiff to the point that she made assumptions as
to Ms. Ruchelski’s future needs without, in some instances, confirming
with the plaintiff the need for what was being recommended and whether it
related to her ability to function. Examples include the recommendations for
yard assistance and snow removal.

[91]        
The medical evidence, including that of the family physician Dr. Barnard
and the two physiatrists, Dr. Adrian and Dr. Laidlow do, however, provide a
basis for an award taking into account the principles above.

[92]        
Dr. Barnard stated in her report that the plaintiff would need to
continue taking analgesia and “pain modulating medication”, although the
duration was not specified.

[93]        
Dr. Barnard also recommended ongoing physiotherapy, massage therapy and
aquatic therapy, together with an exercise program.

[94]        
Dr. Adrian noted that the plaintiff experienced temporary pain relief
from massage treatments but stated it was unlikely those treatments would
provide her with long-term improvement of her symptoms or function. He was also
of the view that the plaintiff may benefit from the use of an ankle brace.
There was no evidence led, however, as to the cost of this particular piece of
equipment.

[95]        
Dr. Laidlow was of the opinion that Ms. Ruchelski was fully capable of
doing all of her activities around the house and home and required no
assistance. He was also of the view that the plaintiff did not require further
physiotherapy, chiropractic or massage therapy treatments. At page 11 of his report,
he referred to community-based exercise including a personal trainer for a
limited duration as being of benefit to the plaintiff.

[96]        
Neither Dr. Adrian nor Dr. Laidlow commented on the need for ongoing
pain medication.

[97]        
Insofar as medications including non-prescription medicine are concerned,
the basis for a very modest award has been established. I do not accept,
however, that the amount for which the defendants are responsible should be the
yearly cost set out by Ms. Taylor. There was no medical evidence to the effect
these medications would be required on a lifetime basis. A significant contingency
should also be applied in relation to PharmaCare. I note that although the
plaintiff seeks $2,250 per year for prescription medications, the total amount
of special damages claimed since the Accident, a period of more than 4 l/2
years, is approximately $2,000.

[98]        
I have also considered the plaintiff’s pre-Accident medical history of
occasional back pain and sciatica. The plaintiff’s pre-Accident health may have
resulted in some pain medication being required in the future even if the
Accident had not occurred.

[99]        
Insofar as the need for ongoing physiotherapy and massage therapy are
concerned, I prefer the opinion of the specialists over that of Dr. Barnard.
Placed in its most favorable light from the plaintiff’s perspective, their
evidence indicates that some of these therapies may provide short-term relief.

[100]     There is
authority to the effect that damages can be awarded for treatment such as
massage therapy or physiotherapy even if the effects are temporary. See Kardum
v. Asadi-Moghadam, 2011 BCSC 1566 at paras. 176 and 177 and Runghen v.
Elkhalil, 2009 BCSC 467 at paras. 60 and 61.

[101]     In my
view, the plaintiff has established the basis for an award for these types of
therapies. But, she has not established they will be required on a permanent
basis. See Williams v. Nekrasoff, 2008 BCSC 1520 at paras. 37 and 38.

[102]     I award
the plaintiff $5,000 for these treatments.

[103]     I also
award the plaintiff $1,500 for a rehabilitation program as recommended by Dr.
Laidlow.

[104]     The claim
for a pool pass must fail because the plaintiff participated in this form of
exercise prior to the Accident.

[105]     The basis
for an award for seasonal homemaking and snow removal has also not been
established. First of all, the evidence did not indicate the plaintiff was
expected to perform snow removal activities. Although Dr. Adrian did refer to
some permanent difficulties that he expected the plaintiff would have with
respect to prolonged sitting, standing or lifting, he did not indicate
assistance would be required based on the plaintiff’s anticipated living
arrangements. Dr. Laidlow, for his part, was of the opinion no assistance would
be required.

[106]     In
addition to what I have awarded for physiotherapy and massage treatment and a
rehabilitation program, the plaintiff has only established the basis for an
award for pain medication subject to the contingencies I have identified above,
together with a modest amount to fund the replacement of some long-handled
cleaning items, which had been purchased and used following the Accident. I
assess these at $7,500.

[107]     Accordingly,
I award the plaintiff $14,000 in total under this head of damages.

Special Damages

[108]     Special
damages are agreed to at $1,982.

VI       CONCLUSION

[109]     The
plaintiff is awarded the following:

[110]     Subject to
any factors pertaining to costs, which either party has leave to bring to my
attention, the plaintiff is awarded her costs at Scale B.

“Abrioux
J.”