IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130527

Docket: M101322

Registry:
Vancouver

Between:

Louise Marie
Bannerman

Plaintiff

And

Barbara Sturrock
Ronald Sturrock

Defendants

Before:
The Honourable Mr. Justice Kelleher

Reasons for Judgment

[1]            
Louise Bannerman was injured in a motor vehicle accident which took
place on December 13, 2008.  Her car was struck when she was driving eastbound on
Highway 1, in Coquitlam, east of the Brunette Street exit.  Liability is
admitted.  Ms. Bannerman seeks damages.

The Plaintiff

[2]            
Ms. Bannerman was born and raised in Saskatchewan.  She is 76 years
old.  Her education includes teacher training at the University of Saskatchewan
and a number of courses toward her certified general accountancy.  She has
lived in a variety of places: Saskatoon, Uranium City, Williams Lake, Port
Simpson, Ucluelet, Port Alberni, Port McNeil, Inuvik, and the Vancouver area. 
Ms. Bannerman has done a variety of accounting and bookkeeping jobs for First
Nations bands and for aboriginal undertakings and more recently, for commercial
businesses in the Lower Mainland.  She is an enterprising woman with a positive
outlook.  Unlike many people her age she has, in her words, “no plans to slow
down”.

[3]            
Ms. Bannerman was married from 1956 until 1978.  She had three children. 
Her son is no longer living.  She has grandchildren here in British Columbia
and in California.

[4]            
Starting in 2000, Ms. Bannerman did bookkeeping services for a number of
construction companies.  Her tasks included preparation of spreadsheets, cost
accounting and preparation of reports such as HST and WCB returns.

[5]            
Much of her work has been for Neil Rogic and companies that are controlled
by him.  Mr. Rogic is a successful developer and builder.  She would
prepare work and deliver it from her home in Coquitlam to a job site in Surrey.

[6]            
In 2008, she designed a house on a lot that she purchased from Mr.
Rogic.  She obtained a mortgage with Mr. Rogic’s co-signature.  The home is
large: some 2,900 square feet on 59A Avenue in Surrey.  Ms. Bannerman designed
it having in mind that she would be aging while living in it.  The house has an
elevator and a suite at the lowest level, which she described as being planned as
a residence for a nurse who would care for her in her later years.

[7]            
Ms. Bannerman moved into the home in May 2008.  In August she was joined
by her good friend, Colleen Broughton.  She and Ms. Broughton had previously lived
in the same apartment building in Coquitlam.  They became acquainted as members
of the strata council and then became friends.  Ms. Broughton pays $1,400 in rent
to the plaintiff.

The Accident and its Aftermath

[8]            
The accident occurred at approximately 11:00 p.m. on December 13.  The
conditions were wet and snowy.  Ms. Bannerman was driving her Dodge SUV in the
middle lane.  On her left was the HOV lane and on her right was the curb lane. 
Ms. Bannerman and her dog were the only occupants of her vehicle.

[9]            
The plaintiff testified that she was struck from behind by the
defendants’ Jeep.  The Jeep then lost control, hit an abutment and struck the
Bannerman vehicle again.

[10]        
Ms. Bannerman called the police.  An ambulance attended.  The
paramedical attendant determined that Ms. Bannerman did not require transfer to
a hospital.  Ms. Bannerman testified the tow truck driver pried open her
door and subsequently drove her to an exit where she was able to get a cab.

[11]        
Ms. Bannerman suffered bruising and a lump on her left temple.  She felt
groin pain the following day.

[12]        
That day, December 14,  Ms. Bannerman saw her physician and complained
of pain in her groin and hip.  He advised her to return in a week.

[13]        
On December 24, she could not get out of bed.  The plaintiff called Ms. Broughton
to assist her.  Ms. Bannerman contacted her physician who sent her to Peace
Arch Hospital for x-rays.  When the doctor received the x-rays, he instructed
her to proceed immediately to Vancouver General Hospital.

[14]        
Ms. Bannerman had previously undergone hip replacement surgeries.  She
arrived at the hospital and had a series of x-rays.  She was told that her
surgeon, Dr. Greidanus, was away for a couple of weeks.  She was given a
choice of being admitted or returning home with prescription pain killers to
await Dr. Greidanus’ return.

[15]        
Ms. Bannerman chose to stay home from December 24 to January 8.  She
took morphine and Tylenol 3s and was confined to a chair in her home.

[16]        
Ms. Bannerman returned to the hospital on January 8.  Dr. Greidanus
operated on January 9.

[17]        
The plaintiff’s medical history is germane to an understanding of the
nature of the surgery.  Ms. Bannerman suffered a fractured right hip in 1989. 
She was treated with hemiarthroplasty, a replacement of half the hip joint. 
She underwent two further revisions, a full arthoplasty in 1997 and a further
revision in 1999.

[18]        
“Revisions”, or subsequent procedures, are not uncommon. 
Dr. Greidanus testified that of the 450 – 500 joint replacements he
performs a year, between one-third and one-half are revisions.

[19]        
In 2001, Dr. Greidanus saw Ms. Bannermann for the first time.  She was
experiencing increasing hip pain which was caused by loosening of her right hip
replacement.  Dr. Greidanus performed a revision in March 2001.  He inserted a
longer femoral stem of some 13 inches in length instead of 5 inches.

[20]        
There were subsequent episodes of dislocation.  On December 30, 2002,
Dr. Greidanus performed revision acetabular surgery.  There were no
problems with the femoral component.  However, he used a larger liner in the
acetabulium and a larger ball.  This resulted in more stability.  The procedure
was successful, according to Dr. Greidanus.  There were minor gait problems and
a leg length discrepancy.  Dr. Greidanus arranged for additional
rehabilitation and shoe adjustment.

[21]        
Ms. Bannerman’s condition was stable for six years, until the accident.

[22]        
The surgery which Dr. Greidanus performed on January 9, 2009, was
complicated and extensive.  It required a long incision from her pelvis nearly
to her knee.  The muscles and ligaments were disrupted.  The femoral stem that
was put in place in the 2001 surgery had broken.  It had to be cut.  The
ingrown bottom portion of the stem had to be drilled out.  A wider and longer
femoral stem was inserted in the femur.  The full length of the bone was then
put back together and wrapped with cables.

[23]        
Ms. Bannerman was transferred from Vancouver General Hospital to Holy
Family Hospital, a rehabilitation facility.  She spent some fifteen weeks at
Holy Family.  Ms. Bannerman said, and I accept, that she has a high pain
threshold.  Nevertheless, she said, she had terrible hip pain during this
period.

[24]        
In the latter part of her stay she was able to spend weekends at home. 
Her son-in-law, Kevin Crawford, took her home on Saturdays and drove her back
to Holy Family on Sunday night or Monday morning.

[25]        
After she was discharged, she continued with out-patient treatment twice
a week.  Ms. Broughton drove her back and forth for these appointments.

[26]        
In the summer of 2009, Ms. Bannerman experienced knee pain.  She
recalled that she hit her left leg on the inside of the automobile in the
accident.  She in fact testified that she had knee pain just after the
accident.  Ms. Bannerman is mistaken in this regard.  In her examination for
discovery, which was conducted at a time closer to the time of the accident,
her recollection was that the knee pain began in April or May of 2009.

[27]        
Dr. Greidanus did knee surgery on November 23, 2009.  Ms. Bannerman was
discharged on November 27.  In December she was back at Holy Family Hospital receiving
rehabilitation treatment for her right hip and her left knee.

[28]        
Ms. Bannerman continued with physiotherapy treatment until June 2010.

[29]        
Ms. Bannerman continues to experience pain but is active again.  She
went on an Alaska cruise in 2011.  She attends her grandsons’ hockey games. 
She attended her grandson’s wedding in California in 2011.

[30]        
Ms. Bannerman testified, and I accept that she experiences pain if she
sits for too long.  It subsides if she elevates her feet and takes a Tylenol
3.  She estimates that she take two to four Tylenol 3s on three to four days
per week.  She estimates a total of 100 pills per month.

[31]        
Ms. Bannerman is able to walk a maximum distance of approximately three blocks. 
She is now able to clean bathrooms and wash dishes.  She said she is leaving
floor mopping to Ms. Broughton.  She drives her daughter’s car to shop for
groceries.  She is able to vacuum and sweep.

[32]        
Ms. Bannerman said during her examination in chief on the first day of
the trial that she could do 75 to 80 percent of what she could do before the
accident.  She has difficulty with stairs.  She has difficulty bending to
access the bottom drawer of her filing cabinet.

[33]        
Attending the trial meant traveling each day from Surrey to downtown
Vancouver.  The week of the trial was the most activity she had experienced
since the accident.  She testified in cross-examination on the third day of the
trial that she had learned her limitations from the trial.  At that time she
was quite affected by the walking, standing and sitting of the past few days.

Causation

[34]        
The test for causation was put this way in Resurfice Corp. v. Hanke, 2007
SCC 7 at paras. 21-23:

21.       First, the basic test for determining causation
remains the “but for” test.  This applies to multi-cause injuries.  The
plaintiff bears the burden of showing that “but for” the negligent act or
omission of each defendant, the injury would not have occurred.  Having done
this, contributory negligence may be apportioned, as permitted by statute.

22.       This fundamental rule has never been displaced and
remains the primary test for causation in negligence actions.  As stated in Athey
v. Leonatti, at para. 14, per Major J.

[t]he general, but not conclusive
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.

Similarly, as I noted in Blackwater v. Plint, at para.
78:

[t]he rules of causation considered
generally “but for” the defendant’s acts, the plaintiff’s damages would have
been incurred on a balance of probabilities.

23.       The “but for” test
recognizes that compensation for negligent conduct should only be made “where a
substantial connection between the injury and the defendant’s conduct” is
present.  It ensures that a defendant will not be held liable for the plaintiff’s
injuries where they “may very well be due to factors unconnected to the
defendant and not the fault of everyone”: Snell v. Farrell, at p. 327
per Sopinka J.

[35]        
There is no dispute that the minor post-accident injuries and the hip
injury meet the “but for” test.  The defendants question the causal link
between the accident and the knee injury.  Ms. Bannerman encountered increased
pain in her knee in April or May, four or five months after the accident.  The
diagnosis was left knee osteoarthritis.

[36]        
Did the accident cause the need for knee surgery?  Dr. Greidanus is
of the opinion that it did.  He stated:

… Louise sustained a
significant force to the left knee in the MVA which has likely accelerated the
demise of the left knee.  We often see cases of blunt force or trauma to a knee
which is associated with cartilage injury or “cartilage bruising” which then
accelerates the degeneration of that joint.  A large force applied to the
articular cartilage can cause a number of the chondrocytes an earlier demise
which can accelerate the process of osteoarthritis.  Given the timing of the
MVA, the nature of the osteoarthritis, and the need for subsequent left knee
replacement it is highly probable that the MVA created a need for the left knee
to have a joint replacement prosthesis at a much earlier time in the life of
the patient.  In addition she still [sic] ongoing soft tissue pains in the
neck, spine, and soft tissues adjacent to the right hip and left knee.

[37]        
Dr. Trevor Stone is an orthopaedic surgeon specializing in orthopaedic
trauma and lower extremity reconstruction.  He conducted an independent medical
examination of Ms. Bannerman on November 2, 2012.

[38]        
He concluded that the left knee problem did not arise directly from the
accident but rather from a pre-existing condition that was brought to light
because of her period of immobility during recuperation from the hip surgery.

Regarding the issue of the
etiology of the left knee osteoarthritis I find somewhat more difficult.  While
I have not directly reviewed the radiographs of her left knee prior to her
total knee replacement the radiograph report from May of 2009 at Vancouver
General Hospital suggests tricompartmental degenerative changes, most marked in
the medial compartment, severe joint space narrowing, subchondral scelerosis
and marginal osteophyte formation.  The interval between injury and this
radiograph is approximately 5 months and I find it very unlikely that the
injury had significant etiology in this development.  It is possible and more
probable that there was pre-existent severe arthritis but the patient was
managing well and that the period of immobility while she was strict non-weight
bearing for 3 – 4 months at Holy Family Hospital, that the period of recumbency
lead to some generalized deconditioning and muscle atrophy and this brought to
light the previously asymptomatic knee osteoarthritis.

[39]        
Ms. Bannerman likely had osteoarthritis in her left knee before the
accident.  There were no specific complaints of knee pain after the accident. 
She first experienced symptoms in April or May of 2009.  Dr. Greidanus agreed
in cross-examination that a person with a degenerative condition may become
symptomatic without a trauma.  He was of the view that the accident likely
caused the injury.  But he also stated that weight bearing after surgery could
have this effect as well.  That is, he opined, that during recovery from hip
surgery, Ms. Bannerman relied on her left knee much more than before.

[40]        
Dr. Stone was of the view that the pre-existent severe arthritis
was asymptomatic but brought to light as a result of the period of immobility
at Holy Family.  Dr. Stone’s view is that her left knee became deconditioned
during the long period of recumbency following hip surgery.

[41]        
I conclude that the left knee became symptomatic and required surgery at
the time as a result of the accident.  The specific cause was her overreliance
on the left knee because of the right hip surgery, or deconditioning of her
left knee during the period of recumbency, or both.

[42]        
Ms. Bannerman testified that the injuries other than her knee and hip
cleared up relatively quickly.  She had bruises to her arm, leg and ankle. 
They cleared up after a few weeks.  Her neck pain persisted for a month to six
weeks.  She had some slight back pain.

Special Damages

[43]        
The plaintiff is entitled to be reimbursed for expenses that are shown
to be attributable to the injuries sustained by the plaintiff.

[44]        
Certain items are agreed: eye glasses $705, television at Vancouver
General Hospital $50.40, snow removal expenses $72, cleaning $696.  There are
several items which are in dispute:

1.              
$602 paid to Kevin Crawford for cleaning gutters and hanging Christmas
lights.  I accept that these expenses were incurred.  The evidence does not
establish, however, that the plaintiff would have performed this work in the
absence of the accident.

2.              
$108.37 is claimed for incontinence products.  The defendant argues
there is no medical evidence establishing that this was caused by the
accident.  Ms. Bannerman testified, and I accept that there were no
incontinence issues before the accident.  I am satisfied this is a proper
special damage claim.

3.              
$5,325 is claimed for personal home health care provided by Ms. Broughton. 
She provided assistance with personal hygiene, meal preparation, housekeeping
and laundry.  The claim covers two periods:

(a)           
15 weeks of three-day weekends when Ms. Bannerman came home from Holy
Family, at $25 per day: 45 days x 25 = $1,125.

(b)           
105 days after discharge from Holy Family at $25 per day = $2,625.

(c)           
63 days in December 2009 and January 2010 while recovering from knee
surgery at $25 per day = $1,575.

[45]        
The defendant argues that this should be treated as an in trust claim
and should fail because there is no evidence to permit the court to assess the
value of the services: see Etson v. Loblaw Companies Limited (Real Canadian
Superstore), 2010 BCSC 1865.

[46]        
I do not regard this as an in trust claim.  Ms. Broughton is not a family
member.  While she and Ms. Bannerman are close friends, their relationship is
partly commercial; for example Ms. Broughton pays rent of $1,400 per month. 
Additionally, the continuous driving certainly exceeded what would be expected
from a close friend.

[47]        
The evidence establishes that Ms. Bannerman required the services.  I
take judicial notice of the fact that the market cost of live in home services
far exceeds $25 per day.  The claim is proper and reasonable.

4.              
$408.75 was paid to Dana Boyd, Ms. Broughton’s granddaughter for outdoor
maintenance, housecleaning and dog care.  The total amount Ms. Bannerman paid
to Ms. Boyd was $817.50.  The defendant paid half or $408.75 for housekeeping
and dog care services while the plaintiff was recovering from hip surgery.

[48]        
I agree with the defendant’s argument that in the absence of the
accident, the plaintiff would not have performed this work.  This claim is
disallowed.

5.              
$200 is claimed for driving by Ms. Broughton.  The total cost of driving
is $800.  This includes 20 trips to Holy Family at $20 per trip; $200 for
transportation to doctors’ appointments and $200 for personal transportation to
financial institutions, pharmacies, hospital appointments and x-ray
appointments.

[49]        
The defendant has agreed to pay $600 as Part VII benefits under the Insurance
(Vehicle) Regulation, B.C. Reg. 447/83 Part VII of the Insurance Act.

[50]        
The defendant argues that Ms. Broughton has not been paid this amount. 
Ms. Broughton’s evidence is that she expects to be paid.  These are expenses
attributable to the plaintiff’s injuries.  The additional $200 is allowed.

6.              
$60 for transportation services provided by Kevin Crawford, Ms. Bannerman’s
son-in-law.  Mr. Crawford charged $35 per trip transporting Ms. Bannerman to
and from Holy Family, Vancouver General Hospital and UBC Hospital, a total of
$1,155 for 33 trips.  Ms. Bannerman is receiving $1,095 as Part VII thus
the claim is $60.  The evidence establishes all of these trips are attributable
to the accident.  The claim is reasonable.  It is well below the cost of a
taxi.  $60 is awarded.

7.              
$2,000 is claimed for lawn cutting and snow removal in 2010, 2011 and
2012.  I am not persuaded Ms. Bannerman would have removed the snow herself if accident
had not occurred.  The lawn cutting, on the other hand, was an activity Ms. Bannerman
carried out at her former residence in Crescent Beach.  The claim is reduced by
$325.  I award $1,675 under this heading.

[51]        
Overall, the total amount of special damages (excluding the Part VII
benefits mentioned in this section) is $8,891.77.  This amount includes the
agreed-upon items and the disputed items I have allowed above.

Loss of “Past Housekeeping Capacity”

[52]        
The plaintiff argues there should be an award for “loss of past
housekeeping capacity”.  This is based on the fact that the special damages are
at an inexpensive rate.  The plaintiff relies on Deo v. Deo, 2005 BCSC
1788, for the proposition that there can be a separate award for lack of
housekeeping capacity in the pretrial period.  I do not agree that lack of
capacity in the pretrial period formed the basis of an award in that case.

[53]        
In any event, I am no persuaded that the plaintiff should be compensated
for obtaining services at rates below the general cost of the services in the
marketplace.

Non-Pecuniary Damages

[54]        
The factors to be considered in awarding non-pecuniary damages are those
listed in Stapley v. Hejslet, 2006 BCCA 34 at para. 46: the plaintiff’s
age, the nature of her injury, the severity and duration of pain, the
disability, emotional suffering, loss or impairment of life, impairment of
family marital and social relationships, impairment of physical and mental
abilities, loss of lifestyle and stoicism as a factor that should not penalize
the plaintiff.

[55]        
Ms. Bannerman is a positive, energetic 76 year old who suffered a
serious injury to her hip as well as other injuries in the accident.  She had
to withstand complicated surgery and an unusually long period of inpatient
recovery both at Vancouver General Hospital and at Holy Family Hospital.  She
suffered considerable pain before and after the surgery.  I have described
above her ongoing disability resulting from the accident.

[56]        
She also suffered an injury to her knee; her degenerative knee condition
became symptomatic and arthoplasty was necessary.

[57]        
It is clear on the evidence that Ms. Bannerman would likely have
required revision hip surgery in the future even in the absence of the
accident.  Thus the claim for damages must be reduced: see T.W.N.A. v.
Canada (Ministry of Indian Affairs), 2003 BCCA 670 where the court said at
para. 48:

48        … whether manifest of
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.

See also Sanders v. Janze, 2009 BCSC 1059.

[58]        
A revision hip surgery at some time in the future was certainly a strong
possibility.  However, it would not have resulted in such complex surgery with
such a long and painful recovery time that Ms. Bannerman experienced because of
the accident.

[59]        
As well, although not a certainty, there is a distinct possibility that the
plaintiff would have required knee surgery in her lifetime even without the
accident.

[60]        
In these circumstances, there should be a 20 percent discount to all
heads of damages awarded to account for these contingencies.

[61]        
A number of decisions in this province cite with approval the English
Court of Appeal’s decision in Frank v. Cox (1967), 111 Sol. Jo. 670, where
the court observed that in some ways injuries to older people have a more
profound effect than injuries to younger people:

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 than 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, become all the more serious on that
account…

[62]        
A number of awards of this Court provide useful comparisons.

[63]        
In Broccoli v. Harris (September 25, 1991), Vancouver Registry
No. C890714 (B.C.S.C.) the plaintiff suffered a fractured hip and other less
serious injuries in a fall on a bus.  She underwent a partial hip replacement
and was hospitalized for three weeks.  She was 74 at the time.  Over the next
four years, her pain increased and a full hip replacement became necessary. 
The Court found she would likely continue to have balance problems for some two
more years.  Non-pecuniary damages of $40,000 were awarded.  Today’s equivalent
is $59,000.

[64]        
In Mills v. Moberg (1996), 27 B.C.L.R. (3d) 277 (S.C.), the
plaintiff sustained a broken hip and required extensive hospitalization.  She,
also 76, underwent revision total hip replacement.  She was hospitalized a
total of six months due to the hip injury and subsequently remained reliant on
a walker and was largely house bound.  Madam Justice Dillon awarded $38,000 in
non-pecuniary damages.  Adjusted for inflation this would be $53,000.

[65]        
The plaintiff referred me to Tompkins v. Bruce, 2012 BCSC 266. 
Mr. Tompkins sustained injuries in a head-on collision.  Resulting
treatment included a total hip replacement.  The trial judge found a left knee
and right knee replacements would be necessary in the future.  Non-pecuniary
damages of $200,000 were awarded.

[66]        
Mr. Tompkins circumstances were, however, far worse than Ms. Bannerman’s
situation.  He suffered a significant psychological mood change; he was a 50
year old tradesman whose life was “permanently and very significantly” altered
by the accident:

[48]      He has lost his ability
to work in his trade at employment he enjoyed.  He has lost a great deal of his
mobility and cannot enjoy activities such as skiing, hiking, snowmobiling, slow
pitch, tennis and similar activities as he once did.  He cannot stand or sit
for long periods of time.  His mood is depressed and his anger harms his
relationship with other people – particularly in the case of Nancy Larkin, his
romantic partner after the accident who left him largely because of his anger
and irritability.  In addition, Mr. Tompkins now faces the prospect of further
surgeries such as two knee surgeries, another hip replacement, the prospect
that the condition of his knees and hip may get worse – and that each surgery
comes with a risk of a loss of function, dangerous embolisms, scar tissue, long
recovery periods and possible poor results.

[67]        
In Etson v. Loblaw, a 76-year-old plaintiff fell and broke her
hip.  She underwent three surgeries including surgery to pin her hip.  Her
mobility deteriorated and she underwent a full hip replacement later.  She was
unable to resume her former lifestyle and was limited in what she could do. 
She remained able to drive and do things around the house.  Madam Justice
Fisher awarded her $90,000.

[68]        
Obviously, each case must be looked at individually.  No plaintiff’s
circumstances are the same as another plaintiff’s.  In all the circumstances,
an appropriate award of non-pecuniary damages is $90,000.

Loss of Income

[69]        
Ms. Bannerman testified she was unable to work in 2009 and most of
2010.  By late 2010 she wanted to get back working.  This is consistent with
Dr. Greidanus’ report.  He said that after revision surgery, it usually takes
18 to 24 months to achieve complete functional recovery.  I find she was
totally disabled for 20 months, until September 2010.

[70]        
However, at September 2010, the plaintiff lacked the capacity to work at
her previous level.  As well, her lack of availability for Neil Rogic, in
particular, has lead to losses that go beyond September 2010 and extend to the
present.

[71]        
The period of disability from the date of the accident until September
1, 2010,  will first be considered, the period from September 1, 2010, until
the date of the trial will then be considered.

[72]        
What was the plaintiff’s loss during the period of total disability? 
Cory Heming is a chartered accountant.  He provided an opinion concerning Ms.
Bannerman’s loss.  In the five years preceding the accident (2004 – 2008), her
average revenue was $31,520.  After expenses her average net income was
$19,411.24.  Taxes at the rate of 22 percent would be payable.

[73]        
I assess her loss until September 1, 2010 to be $35,000.

[74]        
In the period from September 2010 to the present, Ms. Bannerman has
earned $9,757.  During that time she has received almost no work from Mr.
Rogic.  He testified that after the accident, there was work for her to do but
she was not capable of it.

[75]        
Mr. Rogic had employed his daughter before Ms. Bannerman.  His daughter
moved to Calgary but returned to the Lower Mainland in 2009.  When Ms. Bannerman’s
accident happened, Mr. Rogic began employing his daughter again.  This arrangement
continues today.  No doubt part of this is family loyalty.  However, he also
took into account that Ms. Bannerman’s capacity had diminished.  When he
assigns work to her, he delivers the work and picks it up.  He no longer relies
on her to deliver or pick up things.

[76]        
For the period between June 2011 and August 2012 he paid her $800 a
month.  She previously received $1,800 a month from him.

[77]        
I conclude that the accident caused a loss of income to the time of
trial and beyond.  Mr. Rogic values her work.  If the accident had not
occurred, the evidence establishes that the plaintiff would be receiving more
work today.  While it is impossible to quantify with specificity, I assess the
loss for the period of September 1, 2010, to the date of trial at $20,000.

[78]        
I award compensation for lost income at $55,000.

Loss of Earning Capacity

[79]        
It is seldom that a 76-year-old plaintiff makes a claim for loss of
earning capacity.  But Ms. Bannerman is an unusual person.  She testified that
she wishes to work and indeed needs to work to meet her mortgage commitment.  I
accept her evidence that she is not retired.

[80]        
In Parker v. Lemmon, 2012 BCSC 27 at para. 42, Mr. Justice Savage
summarized the test for diminished earning capacity from Perren v. Lalari,
2010 BCCA 140:

(1) A plaintiff must first prove there is a real and
substantial possibility of a future event leading to an income loss before the
Court will embark on an assessment of the loss;

(2) A future or hypothetical possibility will be taken into
consideration as long as it is a real and substantial possibility and not mere
speculation;

(3) A plaintiff may be able to prove that there is a
substantial possibility of a future income loss despite having returned to his
or her employment;

(4) An inability to perform an occupation that is not a
realistic alternative occupation is not proof of a future loss;

(5) It is not the loss of earnings but rather the loss of
earning capacity for which compensation must be made;

(6) If the plaintiff discharges the burden of proof, then
there must be quantification of that loss;

(7) Two available methods of quantifying the loss are (a) an
earnings approach or (b) a capital asset approach;

(8) An earnings approach will be more useful when the loss is
more easily measurable;

(9) The capital asset approach
will be more useful when the loss is not easily measurable.

[81]        
Here the evidence establishes the first requirement in Perren v.
Lalari is met.  There is a real and substantial possibility of events
leading to an income loss.

[82]        
Ms. Bannerman has a reduced ability to work full time because of pain
and her worsened physical state.

[83]        
In these circumstances the impairment of earning capacity should be
assessed on a loss of capital asset basis.  I assess the loss of future earning
capacity at $20,000.

Mitigation

[84]        
Both the plaintiff and the defendant made submissions regarding
mitigation.  The plaintiff argued that I should consider that she
“over-mitigated” or “pre-mitigated” her loss.  The plaintiff gave several
examples.  Ms. Bannerman had built a house with an elevator, a walk-in shower
and other amenities which suit a person with mobility problems.  She was
thereby able to come home from the hospital without engaging in extensive
modifications to her home.  Second, she was able to pay Ms. Broughton $25
per day to care for her, far below market rates for home care.  Third, she went
out and sought work when others her age and in her circumstances would have
retired.  She exceeds what the occupational therapist, Sarah Ismael, thinks she
is capable of.

[85]        
I agree that Ms. Bannerman took steps when designing her home that are
helpful to her now.  The expense for Ms. Broughton’s care is below market
rates.  Ms. Bannerman has a spirited desire to continue working when many
at her age and in her circumstances would retire.

[86]        
But I do not accept that some principle of pre-mitigation or
over-mitigation comes into play.  This is analogous to the thin skull rule: a
tortfeasor takes the victim as he or she finds him or her.  The defendants were
in a collision with a woman who had undergone a hip replacement.  Her damage
claim exceeds that of a plaintiff who did not have this condition.  Similarly,
this plaintiff is resourceful and determined to make the best of her situation,
more so than an average plaintiff.

[87]        
The defendants argue that the plaintiff failed to mitigate her claim for
past and future income loss.  They point to the fact that Ms. Bannerman was
offered work for nine months, at $7,000 per month, on a First Nations reserve. 
The reserve is some 50 miles from Pemberton and is only accessible by logging
road.

[88]        
Ms. Bannerman testified that she turned down the offer because of the job’s
remote location, the length of the assignment, its interference with the
scheduled trial, and its interference with her personal life.

[89]        
A plaintiff has a positive duty to take reasonable steps to mitigate her
losses.  The defendant bears the onus of proving a failure to mitigate: Red
Deer College v. Michaels, [1976] 2 S.C.R. 324 at 331; Asamera Oil Corporation
Ltd. v. Sea Oil & General Corporation [1979] 1 S.C.R. 633.

[90]        
I am not persuaded that the plaintiff acted unreasonably in refusing
this job offer.  If it is 50 miles from Pemberton, that means it is 250 – 300
km from her home.  She testified that the road conditions past Pemberton were
poor.

[91]        
A plaintiff in Ms. Bannerman’s position, living in a home designed to
accommodate her disability, is not acting unreasonably when she decides not to
relocate for nine months to an isolated community far from home in order to
take employment.  She has not failed to mitigate her losses.

Cost of Future Care

[92]        
The approach of a trial judge to determining damages for future care was
described in Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.); aff’d
(1987), 49 B.C.L.R. (2d) 29 (CA):

The award for future care is
based on what is reasonably necessary on the medical evidence to promote the
mental and physical health of the plaintiff.

[93]        
Mr. Justice Masuhara in Izony v. Weidlich, 2006 BCSC 1315, explained
a sensible limitation on the principle.  He said at para. 74 that future care
costs must be reasonable in the sense that the plaintiff will be likely to
incur them:

I therefore do not think it
appropriate to make a provision for items or services that the plaintiff has
not used in the past (see Cordin at para. 35) … The evidence at trial
and the clinical records clearly indicated that Mr. Izony has expressed
resistance to using items or availing himself of services that were medically
recommended.

[94]        
Sarah Ismail is an occupational therapist who has received training in
preparing cost of future care reports.  Ms. Ismail reviewed the medical and
clinical documentation, interviewed the plaintiff, conducted a
physical/functional assessment of her within her home and made physical
observations of her house.  She concluded that the plaintiff had the following
limitations:

1.         Reduced
ability to participate in homemaking activities (including grocery shopping and
cleaning), related to decreased functional tolerances and pain.

2.         Reduced
ability to participate in yard maintenance/gardening tasks, related to
decreased functional tolerances and pain.

3.         Reduced
ability to participate in previously enjoyed leisure activities, related to
decreased functional tolerances and pain.

4.         Reduced
ability to participate in full-time work, related to decreased functional
tolerances and pain.

5.         Reduced
ability to care for her pet, related to decreased functional tolerances and
pain.

6.         Reduced ability to participate
in maintaining her home, related to functional tolerances and pain.

[95]        
It is difficult to ascertain future care costs in this case.  Ms.
Bannerman will require assistance with some house and garden items sooner than
she would have in the absence of the accident.  The defendant is only liable
for the increase in her needs that was caused by the accident.

[96]        
I am not including any allowance for physiotherapy expenses.  Ms. Bannerman
has not availed herself of physiotherapy in 2012 or 2013 and does not have any
appointments to do so in the future.  Similarly, I find it unlikely that she
would engage the assistance of a occupational therapist.

[97]        
The plaintiff will need assistance with pet care.  She has an increased
need for Tylenol 3 medication as a result of the accident.  She has an
increased need for assistance with household cleaning and yard maintenance.

[98]        
I assess the cost of future care at $20,000.

Summary

[99]        
In summary, I make the following award:

[100]    
The sum of these amounts is $193,891.77.  There is a deduction of 20
percent based on the contingency of surgery to her knee and/or hip in any
event.

[101]     I award
Ms. Bannerman $155,113.42.

______________________

Kelleher
J.