IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130923

Docket: M081571

Registry:
Vancouver

Between:

Barbara Louise
Lariviere

Plaintiff

And

Anna Maria Martins
also known as Anna Maria Lavoie

Defendant

Before:
The Honourable Mr. Justice Williams

Reasons for Judgment

[1]            
The plaintiff Barbara Louise Lariviere brings this action seeking to
recover damages which she says she incurred as a result of being struck by an
automobile.

[2]            
On April 30, 2006, shortly after midnight, the plaintiff was on foot,
crossing East Hastings Street at Jackson Avenue, when she was struck by a car
driven by the defendant Anna Maria Martins. She sustained physical injuries and
was transported by ambulance to hospital.

[3]            
The defendant’s liability for the event is at issue. So too is the
extent of the injuries and their effects upon the plaintiff and, accordingly,
the quantum of damages for those consequences.

Preliminary Observation

[4]            
The plaintiff was 60 years of age at time of trial. She was born June 2,
1952. It is not inaccurate to say that her life has, over the past many years,
turned out to be a sad and sorry thing.

[5]            
With respect to the trial, the plaintiff did not have legal counsel to
represent her. While she did have a lawyer earlier in the litigation process,
that relationship apparently ended and she appeared for trial without having
anyone to act for her. That and other complications necessitated previous adjournments
of the trial.

[6]            
The plaintiff was formerly married to Kenneth Lariviere. Although they
are no longer a couple, he obviously still takes an interest in her welfare and
agreed to act for her, notwithstanding that he is not legally trained. He
stepped in and did his best. At the same time, defence counsel conducted
himself with commendable professionalism and made his best efforts to
accommodate challenging circumstances. At one point, after the defendant had
called her evidence, it became apparent that fairness to the plaintiff
necessitated an adjournment in order to permit her to investigate the
availability of further evidence. Defence counsel made no objection to
proceeding in that fashion and so the trial was adjourned for that purpose. While
best efforts were made to accommodate the plaintiff, there were, nevertheless, some
deficiencies in the formulation and presentation of the plaintiff’s case. I
have tried to understand the issues the case presents and to deal with them.

Liability

[7]            
Shortly prior to the incident, the plaintiff was with two male friends
at the home the three of them shared on the west side of Vancouver. Those
persons were Sasha Coad, a friend and former boyfriend of the plaintiff, and
Kenneth Lariviere, the plaintiff’s former husband. The plaintiff, who was
dealing with substance abuse issues at the time, indicated she wished to travel
to the downtown eastside to visit a friend. In fact, in her testimony at trial,
she admits that the purpose for going there was to obtain some crack cocaine.

[8]            
In the result, the three of them went to that area. Mr. Coad, who
was driving the car, pulled over on Jackson Avenue, just south of East
Hastings.

[9]            
The plaintiff described getting out of the car and going to the corner
of East Hastings and Jackson, intending to cross from the south side to the
north side.

[10]        
At that point, there is a marked crosswalk at both the west and east
sides of the intersection. There is a traffic control device which enables a
pedestrian to activate the light phase which causes the traffic lights for
vehicles on Hastings to be stopped by a red light, and which will then cause a
walk signal to be displayed for pedestrian traffic crossing Hastings Street.
Otherwise, the overhead light for east-west traffic flashes green.

[11]        
Hasting Street at that point is six lanes in width: there is one curb or
parking lane on each side and there are two eastbound and two westbound lanes
of travel. In the description which follows, I will refer to the lanes by
number, with the curb lane being designated No. 1, the adjacent travel
lane as No. 2, and the travel lane nearest the centre line as No. 3.

[12]        
The testimony of the plaintiff is that as she walked up to the
intersection, the “light to me appeared to be green” and that she got a “go
ahead” sign. On that basis, she started to walk across Hastings Street. She
says that she was part way across when she observed the light begin to flash; by
this I understand her to refer to the illuminated orange sign which indicates
that a pedestrian is not to walk. At that point, by her explanation, she was
well into the intersection, at least halfway across.

[13]        
Ms. Lariviere says that the next thing she heard was a thump and she
was struck by an automobile.

[14]        
That version of events is disputed by the defendant. She testified that
she was alone in her vehicle, driving westbound on Hastings Street. She was on
her way to pick up her son and his friend who had been partying in the Gastown
district and who had called her, requesting a ride home.

[15]        
The defendant said that she was travelling between 40 and 50 km. per
hour and that she was paying attention to the traffic in the area. It was her
testimony that as she approached the intersection at Jackson, the traffic light
was green for her and remained so as she entered the intersection.

[16]        
Her evidence is that, as she proceeded through the intersection, a
pedestrian, dressed in dark clothing, appeared suddenly, moving from the
defendant’s right (that is, from the north side of Hastings Street) to her left
(that is, towards the south side). Ms. Martins testified that she did not
see this person before the point of collision and she was unable to take any
evasive action. She said a face appeared in front of her – it was the
plaintiff, whom she described as wearing dark clothing with a hood. She applied
her brakes immediately and tried to angle her car away. She described the
plaintiff, after being struck, hitting the windshield and then falling to the
ground.

[17]        
Obviously, there is a discrepancy between the two principals as to the
actual dynamic of the collision, with the plaintiff saying she was moving from
south to north and the defendant insisting that the plaintiff was actually
walking from the north to the south.

[18]        
Some aspects of the incident are clear: that the plaintiff was approximately
in the middle of the No. 2 westbound lane when the impact occurred, and
that, after being struck, the plaintiff came to rest on the roadway a short
distance to the west of the crosswalk.

[19]        
While it does not seem to me to be critical, I will examine the evidence
as to which way Ms. Lariviere was moving at the time the contact occurred.

[20]        
In support of the plaintiff’s position is her own testimony and that of Mr. Lariviere,
who said that he got out of the car almost immediately after she did and who
claims he was just a short distance behind her. While his evidence is less than
completely clear, he seems to say that the plaintiff was heading northbound,
and, if that is accepted, then her description would be supported. As well,
there is the fact that the principal contact injury that the plaintiff
sustained was to her right leg. That would seem to be consistent with her
having been walking with her right side to the vehicle which struck her. In the
particular facts of this case, that would logically involve her walking from the
south side to the north.

[21]        
The evidence which supports the alternative theory – that the plaintiff
was walking from north to south – is the testimony of the defendant as to what
she saw and also the testimony of another witness, Mr. Verney, who is an
independent observer, a cyclist who was stopped at the corner of Jackson and
Hasting. He was waiting for the light to change so that he could cross Hastings
Street, going northbound.

[22]        
Mr. Verney described traffic at the time as being fairly heavy. Although
he did not actually see the defendant’s car strike the plaintiff, he testified
that he heard a screech and a clunk. That was prior to the light changing. He
also said that the plaintiff was coming from the north side.

[23]        
Thus it can be seen that there is evidence to support both of the
competing theories.

[24]        
After considering all of the evidence, and bearing in mind that the
standard of proof is on a balance of probabilities, I conclude that it is more
likely that the plaintiff was walking from north to south when struck. My
conclusion is based on my view that the plaintiff, while undoubtedly sincere in
her recounting of the events, was less than clear in her description. In fact,
her ability as an historian is not good. As for Mr. Lariviere, when I examine
his testimony in conjunction with that of Mr. Coad, who was waiting in the
car, I am not persuaded that his description is accurate. Based upon what he
apparently did after the plaintiff had been struck, curiously, running back to
speak with Mr. Coad at the car without taking any steps to assist her, and
other ensuing confusion, I am simply not satisfied that his description can be
relied upon.

[25]        
In one sense, the evidence of the defendant on the issue is not without
problems. It seems to me that she really did not see Ms. Lariviere until
virtually the point where the car made contact. Accordingly, her testimony as
to where the plaintiff came from is necessarily open to question.

[26]        
There was however one particular aspect of the defendant’s description
of events that I found telling of the issue. She said that, after the
collision, the plaintiff was yelling loudly, and, among the things she said was,
“I want my rock; where is my rock?”

[27]        
There is no reason to doubt that this occurred. Accepting that to be so,
I consider this to be evidence that the plaintiff had already obtained her
crack cocaine when she was struck. Since it appears from the evidence that her
dealer, the source of the cocaine, was located somewhere north of Hastings
Street, the logical inference is that the plaintiff was returning to the car to
rejoin her friends, and was going from the north side of the intersection to
the south.

[28]        
In the result, and taking into account the evidence of Mr. Verney,
I am confident in concluding that the plaintiff was moving from north to south when
the collision occurred.

[29]        
A second matter that is probably more significant than the direction of
travel in terms of the issue of liability is where on the roadway the plaintiff
was when the contact occurred.

[30]        
The answer to that is quite apparent, both from the descriptions
provided by the witnesses and also from the evidence describing where the
plaintiff came to rest.

[31]        
I conclude that the plaintiff was approximately in the middle of
westbound lane No. 2 and either in or, if not in, very close to the
crosswalk. That conclusion follows almost inevitably from the fact that the
plaintiff came to rest only a short distance west of the crosswalk, and the
common sense fact that the force with which she was struck by a vehicle
travelling in a westerly direction would be expected to propel her that way, to
some extent at least.

[32]        
Also relevant to the liability issue is that, while the event occurred
late at night, the area is fairly well illuminated by street lighting and other
light sources from adjacent businesses and establishments. Furthermore,
although it was late at night, I conclude that there was a moderate level of
traffic activity, both vehicular and pedestrian, in the area at the time.

[33]        
The actual clothing worn by the plaintiff at the time was not
discernible from the evidence. The defendant said it was dark; Kenneth
Lariviere said it was light; Mr. Verney was not able to say. I am unable
to make any finding on that issue.

[34]        
In conclusion, I find that the defendant was travelling westbound on
East Hastings Street, sometime shortly after midnight on April 30, 2006.
As she approached the intersection of Jackson and East Hastings, the traffic
light for her was green. She was travelling at approximately 40 – 50 km. per hour.
As she neared the intersection, the plaintiff stepped off the sidewalk on the
north side of Hastings Street, with the intent of crossing to the south side.
She did so in the face of a “wait” signal. She crossed the No. 1 parking
lane and was in the No. 2 lane when struck. She was in or very nearly in
the marked crosswalk.

[35]        
While the plaintiff did not have the right of way in the circumstances,
it is also apparent that she was there to be seen by the defendant. Given the
layout of the intersection, there is no reason to believe this to be a
situation where the plaintiff darted out or emerged from behind a parked
vehicle. My view is buttressed by the fact that the plaintiff’s mobility at the
time was somewhat limited. There is nothing in the evidence to suggest that the
defendant’s view of the area from which the plaintiff left the sidewalk was
obstructed.

[36]        
Having reached those conclusions as to what occurred, it is necessary to
determine where responsibility for the event lies.

[37]        
The legal obligations that apply with respect to the interaction of a
motorist and a pedestrian arise from both statutory and common law sources.

[38]        
The relevant portions of the British Columbia Motor Vehicle Act,
R.S.B.C. 1996, c. 318, are as follows:

Obeying traffic controls

125 Unless otherwise directed by a peace officer or a
person authorized by a peace officer to direct traffic, every driver of a
vehicle and every pedestrian must obey the instructions of an applicable
traffic control device.

Flashing lights

131 (5) When rapid intermittent flashes of green light
are exhibited at an intersection or at a place other than an intersection by a
traffic control signal,

(a) the driver of a vehicle
approaching the intersection or signal and facing the signal must cause it to
approach the intersection or signal in such a manner that he or she is able to
cause the vehicle to stop before reaching the signal or any crosswalk in the
vicinity of the signal if a stop should become necessary, and must yield the
right of way to pedestrians lawfully in a crosswalk in the vicinity of the
signal or in the intersection, and

(b) a pedestrian may proceed across
the roadway with caution and at an intersection only in a marked or unmarked
crosswalk.

Pedestrian controls

132 (1) When the word "walk" or an outline
of a walking person is exhibited at an intersection by a pedestrian traffic
control signal, a pedestrian may proceed across the roadway in the direction of
the signal in a marked or unmarked crosswalk and has the right of way over all
vehicles in the intersection or any adjacent crosswalk.

(2) When the word "walk" or an outline of a walking
person is exhibited at a place other than an intersection by a pedestrian
traffic control signal, a pedestrian may proceed across the roadway in the
direction of the signal and has the right of way over all vehicles.

(3) When the word "wait", the words "don’t
walk" or an outline of a raised hand are exhibited at an intersection or
at a place other than an intersection by a pedestrian traffic control signal,

(a) a pedestrian must not enter the
roadway, and

(b) a pedestrian proceeding across
the roadway and facing the word "wait", the words "don’t
walk", or an outline of a raised hand exhibited after he or she entered
the roadway

(i) must proceed to the sidewalk as
quickly as possible, and

(ii) has the right of way for that
purpose over all vehicles.

Rights of way between vehicle and pedestrian

179 (1) Subject to section 180, the driver of a
vehicle must yield the right of way to a pedestrian where traffic control
signals are not in place or not in operation when the pedestrian is crossing
the highway in a crosswalk and the pedestrian is on the half of the highway on
which the vehicle is travelling, or is approaching so closely from the other
half of the highway that he or she is in danger.

(2) A pedestrian must not leave a curb or other place of
safety and walk or run into the path of a vehicle that is so close it is
impracticable for the driver to yield the right of way.

Crossing at other than crosswalk

180 When a pedestrian is crossing a highway at a point
not in a crosswalk, the pedestrian must yield the right of way to a vehicle.

Duty of driver

181 Despite sections 178, 179 and 180, a driver of a
vehicle must

(a) exercise due care to avoid
colliding with a pedestrian who is on the highway,

(b) give warning by sounding the
horn of the vehicle when necessary, and

(c) observe proper precaution on observing a child or
apparently confused or incapacitated person on the highway.

[39]        
There is as well a common law duty which is relevant to the analysis:
users of the highway, whether they are drivers or pedestrians, are required to
exercise due care with respect to all other users: Cook v. Teh, (1990),
45 B.C.L.R. (2d) 194 at 203, [1990] B.C.J. No. 776 (C.A.).

[40]        
These concepts are usefully discussed in the decision of Mr. Justice
Sewell in Wong-Lai v. Ong, 2011 BCSC 1260. In that case, two
pedestrians, not in a crosswalk, were crossing a street. The court found that
the driver of an oncoming vehicle had the right of way and that the pedestrians
were obliged to yield the right of way to that vehicle. Nevertheless, on the
facts of the case, the court found that both the pedestrian and the defendant
driver were partially liable on the basis of the common law duty of care owed
by all highway users to exercise due care, and particularly, the duty cast upon
the driver to exercise that care in the operation of his vehicle.

[41]        
With respect to the liability of the driver, Sewell J. said this:

[56]      I have concluded that Mr. Ong must bear some
of the legal responsibility for the accident. The law is well-settled that a
driver of a vehicle owes a duty to keep a proper lookout and to avoid
exercising his or her right of way in the face of danger of which he or she was
or ought to have been aware. In some cases the expression used is that that
person must avoid dangers of which he or she was aware or which were reasonably
apparent. I do not think that the defendant in this case can avoid
liability merely because he did not see Ms. Lai before impact. The
critical question is whether he ought to have seen her or, in other words,
whether her presence was reasonably apparent at a point when Mr. Ong could
have taken steps to avoid running her down.

[57]      Drivers of motor
vehicles are not to be held to a standard of perfection. However I do not think
that the possibility that persons may be crossing a highway at a point other
than a crosswalk or intersection is so remote that a driver has no duty to take
it into account in keeping a lookout. The evidence in this case persuades me
that Mr. Ong was not keeping a proper lookout immediately prior to the
accident. His own evidence is that he was not looking forward. While it is
perfectly permissible and prudent for a driver who is changing lanes to do a shoulder
check I think it is also incumbent on such a driver to take the steps necessary
to ensure that it is safe for him to do so.

[42]        
While there was a specific finding in the facts of that case that the
driver had momentarily diverted his attention from the roadway ahead in order
to shoulder check before changing lanes, I do not consider that factor to
render the analysis fundamentally inapplicable to the present matter.

[43]        
Having found both parties to be partially at fault, Sewell J. went on to
deal with the matter of apportionment of liability. In doing so, he applied the
principle that:

Where a plaintiff pedestrian and
defendant driver both fail to meet the requisite standard of care and an
accident ensues, the court may apportion liability between them. Before
liability will be apportioned, however, the defendant must establish that the
plaintiff’s fault was a proximate, or effective, cause of the loss: McLaughlin
v. Long, [1927] S.C.R. 303.

[44]        
In the facts of the matter at bar, I conclude that this collision would
not have occurred, but for the negligence of both the plaintiff and the
defendant.

[45]        
The plaintiff was negligent in stepping out to cross the street, against
the light, and without proper regard for the defendant’s car approaching from
the east. Her conduct in doing so was undoubtedly a cause of the accident.

[46]        
At the same time, I conclude that this collision would not have occurred
if the defendant had been keeping a proper lookout for hazards as she
approached and entered the intersection. It was reasonable for her to have
expected that there might be pedestrian traffic in that area at that time, and,
given the nature of that particular community, it was not beyond the realm of
reasonable possibility that those who were about at that time might be expected
to move around other than in strict compliance with the rules of the road and
the traffic control devices that were present. Accordingly, her negligence was
a contributing cause of the event.

[47]        
Apportionment of liability is determined on the basis of the degree to
which each party was at fault: s. 106, Negligence Act, R.S.B.C.
1996, c. 333.

[48]        
The apportionment of fault is based on the principle expressed in Cempel v. Harrison
Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) 219 (BCCA):

24        In the apportionment of
fault there must be an assessment of the degree of the risk created by each of
the parties, including a consideration of the effect and potential effect of
occurrences within the risk, and including any increment in the risk brought
about by their conduct after the initial risk was created. The fault should
then be apportioned on the basis of the nature and extent of the departure from
the respective standards of care of each of the parties.

[49]        
The range of blameworthiness was the subject of commentary by
Finch J.A. (as he then was) in Alberta Wheat Pool v. Northwest Pile
Driving Ltd., 2000 BCCA 505, at para. 46:

…Fault may vary from extremely
careless conduct, by which the party shows a reckless indifference or disregard
for the safety of person or property, whether his own or others, down to a
momentary or minor lapse of care in conduct which, nevertheless, carries with
it the risk of foreseeable harm.

[50]        
Applying that principle to the circumstances at hand, I am of the view
that the plaintiff’s actions were more blameworthy than those of the defendant.
As I have observed, it was reckless of her to set out to cross the street in
the circumstances that she did. She did not have the right of way.
Nevertheless, as I have also concluded, the defendant was guilty of a degree of
negligence in failing to keep a proper lookout. Had she done so, I expect she
would have seen the plaintiff set out from the sidewalk to cross the street.

[51]        
Obviously the attribution of specific proportions of liability is a
matter of some judgment and arbitrary determination. In this case, I find that
the plaintiff was 75% liable for the accident and so the defendant’s liability
is 25%. In the result, the plaintiff is entitled to recover 25% of the damages
she suffered as a result of the collision.

Damages

[52]        
Ms. Lariviere says that the accident has caused her considerable
pain, suffering and loss of enjoyment of life. The principal injury that she
points to is the fracture to her right leg. She seems to suggest that the state
of the injury is such that she may well require a further operation to deal
with an ongoing complication of the surgery. Additionally, she alleges that she
sustained significant dental injuries in the accident. Finally, her position is
that the global effects of the motor vehicle accident have seriously diminished
her opportunity to obtain and hold remunerative employment.

[53]        
There is no dispute that she sustained a broken leg in the collision.
There is, however, dispute with respect to the dental damage, and I will deal
with that later.

[54]        
For now, I propose to deal with the leg injury, its severity and its
effect upon the plaintiff. To do so, it is necessary to examine the evidence of
four witnesses: the plaintiff herself, Dr. Horlick, Dr. Lyons and Dr. O’Brien.

[55]        
To set the stage, the background circumstances of the plaintiff must be
understood. It is clear that for a period of time well prior to the subject
motor vehicle accident, she had been struggling with very substantial personal
problems including psychological issues and polysubstance abuse. As well, in
November of 2003, she was involved in an accident which resulted in a fracture
of her right leg, the same leg as was subsequently injured in the subject motor
vehicle accident.

[56]        
The 2003 injury, which I may describe from time to time in these reasons
as the balcony incident, occurred at the third floor apartment where the
plaintiff lived with Mr. Coad and Mr. Lariviere. The apartment was
rented by Mr. Coad. My understanding is that the three of them had been living
there for some time prior to the event.

[57]        
The relationship among these three persons was complicated. Mr. Lariviere
was the plaintiff’s former husband, from whom she had been divorced. She
described Mr. Coad as her former boyfriend. The dynamic among the three
was often stormy and dysfunctional and at least some of the time involved abusive
conduct directed toward Ms. Lariviere. I do not know all the particulars,
but I am satisfied that throughout this time, Ms. Lariviere was battling a
serious substance abuse problem together with psychological issues, and it
appears that those factors contributed to the turbulence of the relationships.
That was the situation in November of 2003 when she fell from the balcony of
the apartment to the ground below. There has been some suggestion in the
evidence that the fall was the result of violence toward her by someone else.
The evidence on that is not clear and there is no necessity for this Court to decide
that.

[58]        
The fall resulted in a serious injury to Ms. Lariviere, specifically
a fractured right leg. She was taken to Vancouver General Hospital where she
was operated upon by Dr. O’Brien, an orthopaedic surgeon. The procedure
involved the implantation of a surgical device called an intramedullary nail
(in fact a metal rod) which was inserted longitudinally into the bone of
the lower leg.

Dr. O’Brien

[59]        
The medical report prepared by Dr. O’Brien was tendered at trial.
As well, he was examined and cross-examined by way of a video deposition as he
was unable to attend at the trial. In his evidence, he detailed both the matter
of the original 2003 injury and the surgery that was performed as well as the
subsequent follow-up treatment. Additionally, he examined the plaintiff a
number of months after the motor vehicle accident in 2006, and so his
observations and opinion evidence relate to that injury and its effects, as
well as the relationship between the two events.

[60]        
The relevant portions of his evidence are as follows:

·                
The original 2003 leg fracture was serious; he described it as an
open fracture, meaning that the bone was protruding through the skin, and
opined that it was a “high energy injury”. It required significant surgical
intervention. A component of the original treatment response was the
insertion of the nail in the bone.

·                
There were complications in the healing. Specifically, there was
a non-union: the bone did not mend as it was hoped it would.

·                
As a result, on October 1, 2004, an exchange nailing was done;
that is, the nail within the bone was removed and another inserted.
Nevertheless the healing resistance persisted.

·                
In June 2005, there was a second exchange nailing; again, the
metal device was changed and as well, a bone graft was taken.

·                
Dr. O’Brien saw the plaintiff on September 27, 2005 and at
that time it appeared to him that her condition was improving.

·                
Dr. O’Brien next saw the plaintiff in August of 2006, a
number of months after the subject motor vehicle accident. At that time he
examined x-rays that had been taken following the accident and observed that
there was a new fracture of the proximal tibia which was apparently healing. He
described this as comminuted fracture and noted that there was some
displacement around the nail. He also examined x-rays taken at the time of the
visit; they showed new bone formation and he concluded that the fracture was
advanced in its healing. He noted that the end of the nail was quite prominent
at the knee joint.

·                
He examined further x-rays that were taken in October of 2006.
His opinion is that they disclosed that the proximal tibia fracture, that is,
the fracture from the motor vehicle accident, had healed. He was unable to
actually conduct an examination of the plaintiff on that occasion.

·                
In April of 2008, Dr. O’Brien examined the plaintiff. He
described there being a “major disability present” and that she complained of
bilateral lower extremity discomfort. He said that at that time she was using a
wheelchair and was only able to walk a few steps. On examination, he found that
the range of motion in her right knee was restricted but that the tibia
fracture was healed. He observed what he described as a “persistent prominence”
of the proximal end of the nail.

·                
Dr. O’Brien examined the plaintiff again on March 24, 2009.
At that point, he described there being a “major disability with respect to her
injuries”. He described that she was complaining of low back pain, abdominal
pain, pain in her right buttock and her lower right extremity. Significantly,
he says that the plaintiff reported she had no pain in her right knee. He
described the plaintiff as experiencing “chronic pain”, and noted her limited
ability to stand and walk. He examined her and determined that one of her legs
was shorter than the other. As regards the fracture which had been sustained in
the motor vehicle accident, he said that had healed and that there remained a
slight deformity including flexion at the site and the shortening.

[61]        
Summarizing his evidence as I understand it, he says that the first
injury, the balcony injury, was serious and there were problems with proper
healing but apparently that was eventually achieved. As regards the 2006
injury, he describes that as being a less complex and less severe injury. It
was treated by splinting and a recommendation that no weight be borne for a
period of time. Except for what he describes as an alignment issue, Dr. O’Brien
says that the second fracture healed well.

[62]        
Dr. O’Brien says that the only possible ongoing source of pain
would be the head of the nail protruding such that it was impinging upon the knee
movement and causing knee pain. If that occurs, he says the solution is that
the nail could and should be removed. In this case, his evidence is that he
does not believe that is necessary because, on examination, there was no
tenderness at the site and the fact that the plaintiff had said she had no pain
in the knee.

[63]        
Dr. O’Brien was cautious with respect to his evidence concerning
pain. He noted, fairly and correctly, that he is not a pain expert. He accepted
the plaintiff’s self-report of multiple pain symptoms and accepted that was
contributing to some disability. His evidence was that if there is chronic
pain, he is unable to say what its source or cause is.

Dr. Horlick

[64]        
Another witness called at trial was Dr. Horlick. His report was
made an exhibit and he testified as well. He was the orthopaedic surgeon who
attended on and treated the plaintiff following her admission to St. Paul’s
hospital following the accident. He described having met with her at
approximately 5:00 a.m. and at that point dealing with her leg injury.

[65]        
In his report, he adverts to his understanding of the background
circumstances. In my view, those aspects of his evidence, as they arise from
the plaintiff’s own description, are of no real effect.

[66]        
More specifically relevant is his opinion and conclusion regarding the
leg fracture which resulted from the motor vehicle collision. He observed the
existing intramedullary nail at the site of the previous fracture. That
fracture (the previous 2003 injury) appeared to him to be properly healed. He
noted the presence of a new fracture beginning at the medial side of the
proximal cross-locking screw (a part of the nail structure) and extending up
from there. He concluded that no surgical procedure was required. The treatment
he directed was the use of a splint and pain medications, together with a
recommendation for non-weight-bearing and then gradual mobilization.

[67]        
It was his conclusion that the fracture in the lower leg (resulting from
the motor vehicle accident) did not extend into the joint and that there was
only minor rotation caused by it. In his view, the presence of the
intramedullary nail actually limited the extent of the fracture which resulted
from the motor vehicle accident.

Dr. Lyons

[68]        
Throughout this entire period of time, that is, prior to the balcony
accident and until sometime after the 2006 motor vehicle accident, the
plaintiff’s regular family doctor was a general practitioner, Dr. Lyons.
She testified at trial and her records were received in evidence, although she
was not qualified to provide expert opinion evidence, and so she was limited to
recounting her observations. The relevant parts of her testimony which I have
noted are these:

·                
In 2003, Dr. Lyons took over a practice from Dr. Mary
Harrison, the plaintiff’s former physician. The physician-patient relationship
between Dr. Lyons and the plaintiff continued through 2008, at which time Dr. Lyons
moved to another area of practice.

·                
Dr. Lyons’ records verify the matter of the balcony fall of
2003, the resultant right leg fracture and injury to right foot, and the insertion
of the intramedullary nail.

·                
Her observations made in December 2004 indicate that the
plaintiff was walking on her injured leg.

·                
Her observation of January 2005 indicates that the plaintiff was
experiencing right flank pain. Dr. Lyons measured the plaintiff’s legs and
determined that the right leg was now shorter.

·                
On March 4, 2005, the record confirms that Dr. O’Brien was
planning a bone graft because of the non-union in the healing of the leg
injury.

·                
Dr. Lyons’ records are replete with entries which indicate
that the plaintiff was heavily using prescription pain-killing drugs and was
also abusing alcohol. The drugs included gabapentin, oxycontin and oxycodone. She
was also abusing street drugs. As well, the records reflect discussions in
which the plaintiff disclosed to Dr. Lyons serious dysfunction in her home
situation.

·                
In March of 2005, the plaintiff reported to Dr. Lyons that
she was experiencing chronic leg pain since her fall. There is also reference
to the plaintiff’s use of percocet and her continued drinking. I note that in
her own testimony, the plaintiff appeared to deny any use of percocet.

·                
In May of 2006, Dr. Lyons’ entry is that the plaintiff was
using crutches to ambulate.

·                
Dr. Lyons’ records and her observations indicate that the
plaintiff’s mental health diagnosis included agoraphobia and panic attacks.

[69]        
With respect to the plaintiff’s condition and mobility from the time of
the balcony fall up to the time of the motor vehicle accident, Dr. Lyons
testified that, following the balcony fall, the plaintiff slowly became more
mobile. Originally, she used a wheelchair and crutches, but by April 2006, at
an appointment some five days prior to the subject motor vehicle accident, Dr. Lyons
observed that the plaintiff was walking unassisted, albeit with a limp,
somewhat hunched over. She said the plaintiff was planting the ball of her foot
but not her whole foot.

[70]        
Following the April 2006 motor vehicle accident, Dr. Lyons
continued to see the plaintiff on a fairly frequent basis. Her records indicate
that at one point, the plaintiff was living in a facility and her medications
were being dispensed. She also noted that in October of 2006, the plaintiff had
had two sessions with a physiotherapist.

[71]        
Dr. Lyons was asked to comment as to when, based upon her
observations, the plaintiff appeared to have returned to her pre-motor vehicle
accident condition in terms of mobility. She said that by the time of an
appointment in February of 2007, the plaintiff had recovered her ability to
walk to the pre-accident state and had a walking tolerance of about 100 feet.

[72]        
A central theme of the history of the relationship between the plaintiff
and Dr. Lyons is the persistent use of medications such as oxycontin and
other essentially narcotic substances. It is clear, both from the records of Dr. Lyons
and from the evidence of the plaintiff herself, that, after the motor vehicle
accident, the plaintiff continued to use and abuse non-prescription substances
including alcohol, heroin and cocaine, as she had before. The observations and
records of Dr. Lyons, taken in conjunction with the plaintiff’s evidence,
satisfy me that the complainant has been dealing with significant psychological
problems for many, many years, in fact pre-dating the balcony incident.

[73]        
Dr. Lyons, responding to a question in cross-examination, expressed
her opinion that the plaintiff’s need for these many substances was in part
because of physical pain, but also because of the larger structural (emotional)
problems in her life.

The Plaintiff

[74]        
As indicated, the plaintiff testified at trial. Without wishing to
appear to be critical, her evidence was somewhat confusing. She is not a strong
historian, and it appeared that she was having difficulty concentrating and
staying on track.

[75]        
With regard to her background, particularly her professional or
vocational background, she testified that she attended university for a total
of 16 years. She claims to have earned three or four degrees and to be
qualified to teach at the university level. She also describes herself as a
painter and a writer. In terms of actual employment history, she testified that
she was a research assistant at UBC up until the balcony accident. No further
details were provided with respect to that employment. She also testified that,
prior to the balcony accident, she had been employed at Fitness World and had
managed a fitness studio. Again, there was no detail or confirmation provided
about that employment, such as earnings, etc. In the result, and considering
the evidence globally, I am less than certain as to what her employment
background really is.

[76]        
The issue of her actual state of health and her physical condition prior
to the accident at bar is not clear. There is confusion in the testimony she
provided with respect to her general outlook at the time. At times, she
described herself and her life as happy and good; she also described it as
being depressing and fraught with conflict and depression.

[77]        
With respect to her physical condition and her mobility, she testified
that prior to the subject motor vehicle accident, she was fully mobile and
ambulatory. At trial, she said that her current condition was such that she
walked strangely, hunched over, and that she experienced pain when she walked.
She said she was unable to stand to do chores and that the pain was getting
worse.

[78]        
Ms. Lariviere was, in my view, frank when she spoke of her personal
history, and particularly her history of substance abuse. She agrees that she
has been a long-time abuser of substances, both alcohol and drugs. She has
struggled over many years to overcome these issues.

[79]        
Although her testimony was that, at the time of trial, she was “not drinking
a lot”, my conclusion is that these same difficulties continued to dog her.

[80]        
In cross-examination, when it was suggested to her that she was using
drugs quite substantially immediately before the subject motor vehicle accident
because she was having significant pain in her right leg, she replied “I just
don’t remember” and “I needed something to cope”.

[81]        
In terms of the effect of the motor vehicle accident upon her, she
testified that her self-esteem has been damaged. She believes that her chances
of obtaining employment teaching at university have been “somewhat dashed” by
this accident, together with other reasons, including emotional instability and
“other things I’ve done in my life”. As regards her substance abuse struggles,
she testified that she believes the accident and its effect upon her have
reduced her chances of being able to overcome those problems.

[82]        
She stated that after her first accident, the balcony accident in 2003,
upon her release from hospital, as she continued to have pain in her leg, she
was taking pain medications including oxycodone, oxycontin and gabapentin.

[83]        
The defendant testified that after she was released from St. Paul’s
hospital following the motor vehicle accident, her housing situation was quite
chaotic. Initially it was intended that she would move to a shelter in White
Rock. She didn’t go there and instead went to the Lookout shelter in Vancouver,
lived for a while at the Ivanhoe Hotel and then another care centre in
Vancouver. Eventually she returned to her home which she owns. There were a
number of squatters there and at some point that situation deteriorated entirely.
It probably culminated when she was observed running on the street in
nightclothes and was apprehended under the Mental Health Act in January
of 2010.

[84]        
In summary, in addition to the claim for pain and suffering which she
makes with respect to the leg injury and her dental injury, the effect of her
evidence is that the accident at bar has impacted upon her capacity to earn
income, both prior to trial and into the future.

Discussion

[85]        
Taking all of the evidence into account, my conclusions are as follows:

a)    The plaintiff
has been struggling with, and significantly handicapped by, long-entrenched
substance abuse and addiction issues, as well as psychological difficulties,
for some lengthy period of time, I would estimate, at a minimum, pre-dating the
subject accident by ten years. Those have resulted in a chaotic lifestyle. I
conclude that condition is significantly related to the fact that she has
virtually no established employment record of any note.

b)    In 2003, the
plaintiff sustained a serious leg fracture which resulted in significant
surgical intervention. There were difficulties in achieving healing of that
injury. Eventually, by the time of the motor vehicle accident at issue, she had
made a fairly significant recovery, although I conclude she was experiencing
pain and was limited in her mobility.

c)     The
subject motor vehicle accident in April 2006 resulted in a fracture to that
same leg. It was treated in a conservative way. I conclude that the actual
fracture injury healed and at time of trial was fully healed. I accept that the
subject accident caused her to experience considerable pain, suffering and loss
of enjoyment of life for a time, I would estimate in the order of 18 months. As
for the time subsequent to that, while the plaintiff says she has continued to
suffer serious pain in a number of areas, including her right leg, based upon
the testimony of Dr. O’Brien, I find that her current complaints of
pain and mobility limitation are attributable to the motor vehicle accident in
a fairly minor way: they constitute an aggravation of her prior condition.

d)    The matter of
her allegation of dental injury is troublesome. I note that there is no mention
of any dental injury on the crew report of the ambulance attendants who
responded to the original accident and transported her to St. Paul’s hospital.
I also note that Dr. Horlick, the orthopaedic surgeon who attended upon
her following her admission to St. Paul’s hospital (albeit some four hours
after her admission and undoubtedly with the principal focus of dealing with
her leg injury) makes no mention of there being any dental injury. Dr. Lyons’
recollection is that approximately four months after the accident the plaintiff
made mention of a dental injury. No examination was conducted and there is no
note of any injury being observed. Dr. Lyons said she recommended that the
plaintiff make her own arrangements to have any dental issues dealt with. Thus
the proof that she sustained dental injury in the motor vehicle accident is her
testimony only. At trial, she tendered an estimate from her dentist indicating
that she requires something in the order of $60,000 of dental work, but the
document is not informative in terms of describing the exact damage that is
said to require such extensive repairs or in any way relating her dental needs
to the accident. In her cross-examination, the plaintiff appeared to concede
that the profound malaise she has been in because of her many injuries, both
prior to the motor vehicle accident and subsequent, have caused her to show
little interest in looking after herself, which she described as including
taking no care with her dental hygiene.

I recognize that the fact these
injuries are not documented by medical personnel who dealt with her does not
mean that they were not incurred. However, when all the evidence is considered
globally, including the collision itself and all that followed, I am unable to
conclude that it is more likely than not that the motor vehicle accident was
the cause of the dental injury the plaintiff claims. Accordingly, her claim for
damages in that regard is not proven and stands dismissed.

e)    The issue of
whether or not there is need for future treatment by way of removal of the
intramedullary nail as a result of her motor vehicle accident is problematic. I
will deal with that later in these reasons under the head of damages to
compensate the plaintiff for the cost of future care.

f)      The
claims for loss of capacity to earn income, after the accident and up to the
point of trial, and prospectively as well, are complicated matters and I will
discuss them shortly.

Non-pecuniary loss

[86]        
Accordingly, I must now quantify the damages to which the plaintiff is
properly entitled with respect to her pain, suffering and loss of enjoyment of
life for injuries resulting from the subject accident.

[87]        
The plaintiff sustained a leg fracture in the motor vehicle accident.
She was taken to hospital where the injury was treated. She remained there for
nine days and was then released. Because of mobility restrictions, she was
unable to return to her previous home, a third-floor apartment. That
necessitated finding alternate accommodation. In her case, that consisted of a
series of temporary arrangements at various locations including shelters and,
for a time, a low grade residential hotel in the downtown eastside. Eventually,
she moved to a home that she owned, but the presence of others, essentially
street people and squatters, made that problematic.

[88]        
The fact is, the plaintiff, by reason of other problems in her life,
experienced a greater level of loss of enjoyment of life than might be expected
for a person of more conventional background and circumstances. The effect on
her life was more damaging.

[89]        
I have concluded that it was approximately one year after the motor
vehicle accident that the plaintiff had returned to her pre-accident state of
mobility. The actual effect upon her general state of health, wellness and
ability to cope with the vagaries of life is difficult to assess, because it is
informed by her pre-existing conditions, including her substance abuse, her
mental health difficulties, and her physical limitations.

[90]        
In my view, it is reasonable to conclude that she continued to
experience adverse effects which fall under the broad heading “pain, suffering
and loss of enjoyment of life” for some considerable time after the actual
healing of the leg fracture. The matter is complicated because the plaintiff’s
pre-accident condition was compromised for reasons I have discussed earlier,
and that must be factored into the analysis. Of course, the defendant’s
responsibility extends only to the effects of her negligence.

[91]        
As for the extent of the compensable damages in the present case, I find
that the pain, suffering and loss of enjoyment of life sustained by the
plaintiff and for which the defendant’s negligent conduct is responsible is
comprised of two components:

a)    The immediate
and more acute phase, specifically the fractured leg and the impaired mobility,
together with the associated pain and discomfort, which I find was resolved
within one year.

b)    The more general
effect, although that was a minor component of the constellation of
difficulties experienced by the plaintiff. I find that continued up to trial
and accept that it will be of some continuing effect, albeit a minor part of
her overall complex of problems.

[92]        
With respect to a determination of the quantum of damages, most often a
court will look to other cases which have similarities, and consider how other
courts have dealt with those matters. In this case, there is not an abundance
of comparable decisions to assist in the assessment.

[93]        
I have examined a number of decisions dealing with pedestrians who have
sustained tibia fractures and knee injuries as a consequence of having been
struck by automobiles. Those cases are the following:

a)    Furness v.
Guest, 2010 BCSC 974;

b)    Dodsworth v.
Krenus, 2010 BCSC 267;

c)     Eblaghie
v. Lee, 2010 BCSC 703;

d)    Russell v. Parks,
2012 BCSC 1128;

e)    Gray v. Ellis,
2006 BCSC 1808;

f)      Bradshaw
v. Matwick, 2009 BCSC 564;

g)    Fortin v.
Cousins, 2009 BCSC 720;

h)    Cabrera v.
Sandhu, 2009 BCSC 1321; and

i)       Wilson
v. Ham, 2004 BCSC 842.

[94]        
There are, of course, variations in terms of the specifics of the
injuries and their effects. From this survey, however, I find that the quantum
of damages range from $40,000 to $75,000. Situating Ms. Lariviere’s claim
on that spectrum is necessarily something of an arbitrary exercise. Using my
best judgment, I conclude that an appropriate award for non-pecuniary damages
in this case is $65,000.

Loss of Capacity

[95]        
Although there was no clear and artfully articulated claim with respect
to past or future loss of income, it is apparent that the plaintiff seeks to
recover damages to compensate her for those concerns. Accordingly, I am obliged
to examine the evidence in order to determine whether she has established a
right to be compensated by the defendant.

[96]        
In Cruz v. Rashid, 2013 BCSC 1530, Madam Justice Dardi set out a
comprehensive and useful explanation of the principles that apply to the
analysis of claims of this nature. I will commence the discussion by
replicating that part of her decision:

1. Legal Framework

[98]      The legal principle
that governs the assessment for loss of earning capacity is that, insofar as is
possible, the plaintiff should be put in the position he or she would have been
in but for the injuries caused by the defendants’ negligence: Lines v. W
& D Logging Co. Ltd., 2009 BCCA 106 at para. 185. It is
well-settled that an award for future loss of earning capacity represents
compensation for a pecuniary loss: Gregory v. Insurance Corporation of
British Columbia, 2011 BCCA 144 at para. 32. Compensation must be made
for the loss of earning capacity and not for the loss of earnings: Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; X. v. Y, 2011
BCSC 944 at para. 188.

[99]      The recent jurisprudence of the Court of Appeal has
affirmed that the plaintiff must demonstrate both impairment to his or her
earning capacity and that there is a real and substantial possibility that the
diminishment in earning capacity will result in a pecuniary loss. If the
plaintiff discharges that requirement, he or she may prove the quantification
of that loss of earning capacity either on an earnings approach or a “capital
asset” approach as described in Brown v. Golaiy (1985), 26 B.C.L.R. (3d)
353 (S.C.); Perren v. Lalari, 2010 BCCA 140 at para. 32; Morgan
v. Galbraith, 2013 BCCA 305 at para. 53. Regardless of the approach,
the court must endeavour to quantify the financial harm accruing to the
plaintiff over the course of his or her working career: Pett v. Pett,
2009 BCCA 232 at para. 19; X. v. Y at para. 183. The
authorities establish that an inability to perform an occupation that is not a
realistic alternative occupation is not proof of an income loss.

[100]    As enumerated by the court in Falati v. Smith,
2010 BCSC 465 at para. 41, aff’d 2011 BCCA 45, the principles which inform
the assessment of loss of earning capacity include the following:

(i)         The
standard of proof in relation to hypothetical or future events is simple
probability, not the balance of probabilities: Reilly v. Lynn, 2003 BCCA
49 at para. 101. Hypothetical events are to be given weight according to
their relative likelihood: Athey at para. 27.

(ii)        The
court must make allowances for the possibility that the assumptions upon which
an award is based may prove to be wrong: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.).
Evidence which supports a contingency must show a “realistic as opposed to a
speculative possibility”: Graham v. Rourke (1990), 75 O.R. (2d) 622 at
636 (C.A.).

(iii)       The
court must assess damages for loss of earning capacity, rather than calculating
those damages with mathematical precision: Mulholland (Guardian ad litem of)
v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.) at para. 43. The
assessment is based on the evidence, taking into account all positive and
negative contingencies. The overall fairness and reasonableness of the award
must be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11.

[101]    Although a claim for “past loss of income” is often
characterized as a separate head of damages, it is properly characterized as a
component of loss of earning capacity: Falati at para. 39. It is
compensation for the impairment to the plaintiff’s past earning capacity that
was occasioned by his or her injuries: Rowe v. Bobell Express Ltd., 2005
BCCA 141 at para. 30; Bradley v. Bath, 2010 BCCA 10 at paras. 31-32;
X. v. Y at para. 185.

[102]    While the burden of proof relating to actual past
events is a balance of probabilities, a past hypothetical event will be
considered as long as it was a real and substantial possibility and not mere
speculation: Athey at para. 27.The Court in Falati at para. 40,
summarized the pertinent legal principles governing the assessment of
post-accident, pre-trial loss of earning capacity and concluded that:

[40] … the determination of a
plaintiff’s prospective post-accident, pre-trial losses can involve considering
many of the same contingencies as govern the assessment of a loss of future
earning capacity. … As stated by Rowles J.A. in Smith v. Knudsen, 2004
BCCA 613, at para. 29,

“What would have happened in the past but for the injury is
no more ‘knowable’ than what will happen in the future and therefore it is
appropriate to assess the likelihood of hypothetical and future events rather
than applying the balance of probabilities test that is applied with respect to
past actual events.”

[97]        
In the present matter, there is an unusual factor that meaningfully
informs the analysis: the plaintiff has adduced no evidence of value to show
that she had any remunerative employment in the time before the accident. By
that, I am not referring to the time immediately preceding the event. I am
speaking in terms of years. On the evidence, there is nothing to indicate that
she worked between the time of the balcony fall accident and the motor vehicle
accident at bar – that is two and half years. For the period of time prior to
the 2003 incident, she has made vague reference to having worked for Fitness
World and having been a research assistant at UBC. On the basis of her
testimony, it would seem those two jobs were being done concurrently. However,
there is the fact that she was obviously engaged in the very serious throes of
battling substance abuse issues, a chaotic home-life and mental health
difficulties. As well, there are, as I have explained, real problems with
respect to the reliability of her recounting of her personal history and
circumstances.

[98]        
This is important because, in making the determinations that the claim
requires, courts have to work from a baseline: a reasonable idea of what a
plaintiff’s situation would have been if the accident had not occurred. The
determination of the impairment to the plaintiff’s past earning capacity that
was occasioned by his or her injuries necessarily entails using the “before”
situation as a point from which to measure. The difference between the “before”
and the “after” substantially informs the determination.

[99]        
In this case, I am driven to conclude that, prior to the motor vehicle
accident, Ms. Lariviere was unemployed and functionally unable to hold any
meaningful remunerative employment. That was attributable to a number of
problems – primarily her substance abuse issues and her mental health
difficulties.

[100]     In the
result, the difference that was caused to her capacity to earn income by the
accident was essentially nothing. There was no meaningful effect. Although the
plaintiff is not obliged to prove the loss on a balance of probabilities, she
must satisfy the court that the loss is a real and substantial possibility.
That has not been done here and so, regrettably for Ms. Lariviere, I must
conclude that she is not entitled to recover under that head of damages.

[101]     There is
also the related matter of a claim for damages to compensate for the
plaintiff’s future loss of earning capacity.

[102]     The
plaintiff called one witness in this regard, a UBC professor. He had been her
MFA thesis supervisor but that was some 20 years prior to the subject accident.
He has been only minimally and sporadically in contact with her over the
time since then.

[103]     If it was
intended that the effect of his evidence provided support for the proposition
that she would realistically be a candidate for an instructional position at UBC
or some other similar institution, that has not been made out. Unfortunately,
if one were to take away from her situation the effects of the motor vehicle
accident of April 30, 2006, I cannot conclude on the totality of the
evidence that it would be even remotely likely that she would be able to secure
and function in such a job.

[104]     To my
mind, the analysis is similar to the capacity loss discussed above. While the
exercise is not a matter of calculating a specific value based on evidence of
what would have been earned but for the accident, the plaintiff must
demonstrate both impairment to her earning capacity and that there is a real
and substantial possibility that the diminishment in earning capacity will
result in a pecuniary loss. Even if I were to accept that the accident has
resulted in an impairment to her earning capacity (and I am not satisfied that
has been done here), the evidence must establish that there is a real and
substantial possibility that a pecuniary loss will result.

[105]     The
plaintiff is a person with many problems, and it seems unlikely that she
will be able to join the workforce and earn an income. However, I am unable to
conclude that is attributable to an impairment of her earning capacity caused
by the defendant’s negligence.

[106]     Consequently,
I find that Ms. Lariviere has not met the onus of proof necessary to
warrant an award of damages for future loss of earning capacity.

Cost of Future Care

[107]     The only
issue to consider under this head is the matter of the intramedullary nail
which is presently in her lower right leg. As will be recalled, that was implanted
as part of the surgical repair of her leg after the 2003 accident; it was part
of her anatomy when the 2006 accident occurred and thus falls under the rubric
of the defendant taking the plaintiff as she found her.

[108]     The
plaintiff’s position, as advanced by Mr. Lariviere, is that Dr. O’Brien
had stated in a consult report sent to Dr. Lyons that the intramedullary
nail would have to be removed. Following from that, the plaintiff contends that
there is no doubt about the proposition: it is a certainty and therefore no
contingency discount should be applied.

[109]     The
difficulty with that approach is that Dr. O’Brien, in both his report and
his viva voce testimony, does not hold to that view.

[110]     In his
report, he makes reference to “persistent prominence of the proximal end of the
nail” at the knee. He notes as well though that, on examination, the plaintiff
did not complain of pain at the knee; he says she specifically denied having
any pain in her knee. He also detected “no tenderness over the proximal tibial
fracture site or at the nail insertion site”.

[111]     In his viva
voce testimony, with respect to the presence of the nail and the issue of
knee pain, he stated that “the only thing I would be concerned about with her
was the prominence of the intramedullary nail after this fracture as the
potential site of pain”. He said as well that if it turned out to be a source
of pain, he would suggest it be removed.

[112]     From this,
I conclude that the nail is or may be impinging on the free motion of the
plaintiff’s knee. Although Dr. O’Brien seemed to think that it was not a
problem when he made his last examination, he appears to accept that there is a
real possibility that this situation may become a problem that will cause pain
for the plaintiff and interfere with the joint’s motion. If that were to be the
case, he stated that the appropriate treatment would be to surgically remove
the nail and he testified that such an operation is quite viable.

[113]     Whether
that will have to be done is not anything I can predict. Time will tell.

[114]     It is on
this basis that I conclude that there is a real possibility that the ongoing
complex of pain which the plaintiff experiences may at some point necessitate
the removal of the nail.

[115]     When
dealing with claims for compensation for such future events, where the necessity
is not assured, the approach to be taken is this: the court will assess whether
the event in question is a real and substantial possibility. If it is, then the
court will assess the likelihood of that event occurring and damages will be
awarded accordingly.

[116]     In this
case, I am forced to make my decision on what amounts to a quite limited
evidentiary record. That being said, I am satisfied that there is a real and
substantial possibility that there will be a need to remove the nail. It is
difficult to assign a percentage of likelihood, but, on what I know, I would
assess that at 40%. As for the costs that would attend such an event, again,
the court is required to make a decision without the benefit of useful evidence.
Thus this becomes an exercise in best-effort estimating.

[117]     In the
circumstances, I am required to assign a value to the cost of care that the
plaintiff would reasonably be expected to incur in the event such a surgery
were to be required. My estimate, which is necessarily arbitrary, is informed
by the fact that she does not have a strong and reliable personal support
network in her life, and that her own self-sufficiency resources are not
robust. Those factors would, in my view, result in there being a greater cost
incurred to provide the necessary care.

[118]     I find
that appropriate sum to award with respect to the cost of future care is $20,000.

[119]     Accordingly,
the plaintiff is entitled to recover the sum of $8,000, which represents 40% of
$20,000, and that is subject to apportionment.

  Special Damages

[120]     One of the
heads of damages contained in the original Statement of Claim was special
damages. No specifics of such a claim were advanced at trial, and there is nothing
in the evidentiary record to support an award under that head. Accordingly,
there is no award for special damages.

Conclusion

[121]     The
damages I have concluded properly and fairly provide compensation to the
plaintiff are as follows:

[122]    
Because of the liability apportionment finding reached, she is entitled
to recover 25% of that sum from the defendant – $18,250.

[123]    
With regard to costs, there have been no submissions made in that
regard. In the event the parties are unable to reach an agreement on that
issue, they will be at liberty to arrange to have the matter brought back
before me.

“The
Honourable Mr. Justice Williams”