IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131113

Docket: M135850

Registry:
New Westminster

Between:

Kim Margaret
Savoie

Plaintiff

And:

Sean Douglas
Williams, John Doe and
Insurance Corporation of British Columbia

Defendants

And:

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Johnston

Reasons for Judgment

[1]            
The plaintiff claims damages arising out of a motor vehicle accident on
September 28, 2009. The accident occurred when the defendant, Sean Douglas
Williams, entered an intersection at 88th Avenue and 192nd Street in Surrey,
without stopping at a stop sign, and while the plaintiff had the right-of-way.
While counsel for the third party was unable to admit liability on the part of
Mr. Williams, he led no evidence to contest the plaintiff’s evidence, nor
did he advance any argument that contradicted the plaintiff’s argument that the
defendant Williams was 100 percent responsible for the accident. I find the
defendant Williams 100 percent responsible for the accident.

[2]            
The plaintiff was 49 years old at the time of the accident, 53 at the
time of trial. She is married to Patric Savoie and they have three children.
Throughout her marriage the plaintiff has worked, except for some periods
following the birth of each of her children when she was a stay-at-home mother.
In the years prior to the accident, the plaintiff had worked as a housekeeper,
then as a receptionist at a place called Newton Ridges where she also did
payroll. In 2007 she began employment with Cummins Western Canada Industries,
initially as a receptionist and later in the parts department.

[3]            
The plaintiff’s workday at Cummins starts at 6:30 a.m. and she
ordinarily gets up at about 4:45 a.m. because she likes to arrive early. She
works five days a week, Monday to Friday.

[4]            
At the end of the plaintiff’s workday she goes home and exercises. Prior
to the accident she would exercise for about an hour, then make dinner for the
family and do other household tasks.

[5]            
The plaintiff describes herself before the accident as “a bit of a neat
freak” and that description is amply supported by the evidence of her son, Brad;
her daughter-in-law, Amanda Smith; her husband, Patric; and her daughter, Shaunee.

[6]            
The plaintiff testified that prior to the accident her exercise regime
included doing 600 crunches five days a week, four or five walks with her
neighbour per week, plus the physical activity required to doing all of the
housework (including baking, scrubbing floors, scrubbing bathrooms and the like).

[7]            
By the time of the accident, the plaintiff’s children had grown and
either left home or were in the process of leaving home, and she and her
husband had both time and freedom to enjoy themselves. About 10 months before
the accident, Mr. Savoie bought a motorcycle and during the four or five
months leading up to the accident, the plaintiff and her husband developed a
passion for motorcycling.

[8]            
The plaintiff was physically and emotionally affected by the accident.
She testified that she thought she was going to die when she caught a glimpse
of the defendant’s vehicle bearing down on her from her left. Her car was
written off in the accident, although her immediate injuries appeared to be no
more than cuts and bruises to her legs. The plaintiff says all she wanted to do
was to go home and so she refused the ambulance attendants’ offer to take her
to hospital and instead telephoned her husband to come and get her.

[9]            
The plaintiff’s husband picked her up from the scene of the accident and
first took her home, then to a nearby walk-in clinic.

[10]        
The plaintiff had no family physician at the time, and had been
utilizing walk-in clinics very infrequently prior to the accident.

[11]        
She saw Dr. Bawa at the walk-in clinic who gave her a Tetanus shot.

[12]        
Four days later she went to a walk-in clinic and inquired whether any
female doctors were taking patients. She then saw Dr. Pabani for some
time, although Dr. Pabani was not taking new patients.

[13]        
The plaintiff’s complaints, as they developed in the 24 hours after the accident,
included bruising and pain to her knees, some cuts to her legs and neck, shoulder
and back pain.

[14]        
She was off work as a result of her injuries until early November when
she started a graduated return to work program over two weeks. In the time she
was off work, the plaintiff had physiotherapy, kinesiology and massage, all in
accordance with Dr. Pabani’s recommendation. She was back to work
full-time by the end of November 2009. She also had massage in mid-December
2009.

[15]        
When she returned to work, the plaintiff had pain throughout the day.

[16]        
The plaintiff finally found a full-time family physician in Dr. Ghohari
in August 2010. Dr. Ghohari sent the plaintiff for more physical therapy.

[17]        
The plaintiff described anxiety or panic attacks, worse shortly after
the accident, and particularly acute when driving past the scene of the
accident. She is startled by unexpected movement and describes excessive
reaction to leaf fluttering.

[18]        
The plaintiff complains of susceptibility to cold drafts and says that
she had her employer block off the outlet to an air conditioner over her work
station because the cold air caused discomfort in her neck, shoulders and back.
The plaintiff wears scarves at work, and refuses to go motorcycling with her
husband unless it is warm enough for her.

[19]        
Perhaps as an indication of her emotional reaction to the accident and
her injuries, the plaintiff said more than once in her evidence that her
injuries had “devastated” her home life. She had prided herself on her mastery
of her home and reacted badly when she was unable to work around the home to
the same extent as before the accident.

[20]        
The plaintiff’s housework was not confined to inside the house, as the
evidence of her family is consistent that the plaintiff also did yard work,
including mowing the lawn and washing the vehicles, except for Mr. Savoie’s
dump truck.

[21]        
The plaintiff’s symptoms have slowly improved since the accident, but have
not nearly resolved. She now does her house work gradually to accommodate her
reduced physical capacity. Her husband now helps with vacuuming and making
beds, something that did not occur before the accident. If she walks more than
half an hour, she limps and she has given up the long walks with her neighbour.
She says that she can no longer do her crunches.

[22]        
Her inability to exercise has led to a 15 pound weight increase. The
plaintiff has three grandchildren and she is distressed that she is unable to
lift them as she would like.

[23]        
Her son, Brad, owns a motor boat and the plaintiff used to enjoy riding
in it but now even a gentle pounding in the boat causes too much discomfort. She
has stopped going for rides with him.

[24]        
The plaintiff no longer shops with her daughter the way she used to
because her tolerance for long periods on her feet is significantly reduced.
Also, according to her daughter, the plaintiff is reluctant to shop for
clothing for herself because the plaintiff is embarrassed by her weight gain.

[25]        
The plaintiff had no relevant previous injuries. The defence points to
early signs of menopause, about two years prior to the accident, and that
appears to explain why the plaintiff was seeking a female doctor shortly after the
accident. The third party attempted to establish some relationship between the
plaintiff’s complaints and common symptoms of menopause through
cross-examination of Dr. Ghohari, and Dr. Caillier – a specialist in
physical medicine and rehabilitation who saw the plaintiff at the request of
counsel on August 31, 2012.

[26]        
I am satisfied, having reviewed all of the evidence, that any relationship
between a pre-menopausal condition and the plaintiff’s complaints after the
accident is at best incidental, and that most, if not all, of the plaintiff’s
complaints are solely attributable to the motor vehicle accident.

[27]        
The third party asks that adverse inferences be drawn from the
plaintiff’s failure to lead evidence from her current supervisor at Cummins
Western Canada. The plaintiff has changed jobs at Cummins since the accident
because she received a promotion, and her current supervisor did not know her
or have an opportunity to observe her work capabilities prior to the accident.
The plaintiff did call Mr. Hensen, who was the plaintiff’s supervisor in
2008 and 2009 and who described her as not the same person after the accident
as she had been before. He elaborated on that by saying that the plaintiff
seemed a lot more timid after the accident.

[28]        
The absence of the plaintiff’s next door neighbour, the woman with whom
the plaintiff went on long walks before the accident, was explained by the
neighbour’s husband, who did testify and who said that his wife had health
problems that made the stress of testifying inadvisable.

[29]        
Other witnesses such as Ms. Ulrich, a former co-worker, support the
plaintiff’s assertions of injury and the effects of injury on her.

[30]        
Perhaps more significantly, the third party seeks an adverse inference
from the failure to produce a report or to lead evidence from Dr. Bawa,
the first doctor consulted by the plaintiff after the accident, or Dr. Pabani.
The third party seeks an inference that the plaintiff was not injured as badly
as she claims, or that the injuries have lasted as long as the plaintiff
claims.

[31]        
I decline to draw the inferences requested, in part because the clinical
records of Dr. Bawa and Dr. Pabani have been produced and are
available and have been available to the third party. Indeed, the plaintiff
tendered those clinical records as exhibits and I rejected them as
inadmissible, based in part on the reasoning of the Court of Appeal in Samuel
v. Chrysler Credit Canada, 2007 BCCA 431, and the reasoning in Edmondson
v. Payer, 2011 BCSC 118. I also advert to the comments of the Court of
Appeal in Buksh v. Miles, 2008 BCCA 318, at paras. 33 and 34.

[32]        
The single largest dispute in this action concerns the reason the plaintiff
continues to have the symptoms in her neck, shoulders and upper back.

[33]        
The plaintiff was examined by Dr. Maloon, an orthopaedic surgeon
retained by counsel for the third party, on October 11, 2012. Dr. Maloon,
in addition to examining the plaintiff, reviewed the report from X-rays of the
plaintiff’s neck and upper back taken in August 2011. That report informed Dr. Maloon
that the plaintiff had degenerative changes in the mid-cervical and upper
lumbar regions of her spine. Dr. Maloon’s opinion was that the continuing
symptoms from the plaintiff’s neck and upper back were largely the result of
the degenerative changes shown on the films, which Dr. Maloon described as
“wear and tear”. This opinion was largely derived from his discussions with Ms. Savoie,
but confirmed by his physical examination of her and a review of the radiograph
report.

[34]        
Dr. Maloon agreed that there was no indication that the plaintiff
had any complaints arising from these areas of her body prior to the accident,
and described as a “million dollar question” the reason some people with
similar wear and tear will have pain or other symptoms from the wear and tear,
whereas others will not.

[35]        
Dr. Maloon also said that once there are wear and tear changes to
the neck, nothing can be done to change the natural course of that condition;
it is a mechanical problem and treatment is largely symptomatic.

[36]        
At page 6 of his written opinion Dr. Maloon says:

It is possible that the soft
tissue strain that she sustained initiated the symptoms of degenerative changes
that have persisted to date.

[37]        
I conclude that Ms. Savoie’s initial soft tissue injuries, which I
consider moderate to severe, have plagued her from the time of the accident until
the date of trial. I also find that these injuries precipitated symptoms from the
pre-existing (but asymptomatic) degenerative state of her neck and upper back,
that the combination of the injury and the degeneration has created more discomfort
than either would alone, and that to the extent that the continuing symptoms come
from the degenerative neck condition, it is unlikely they will ever completely
go away.

[38]        
I have reviewed the authorities tendered by each counsel and consider
that the facts of this case more nearly approximate the facts in Ortega v.
Pena, 2012 BCSC 1884, and Thomas v. Wormsley, 2009 BCSC 919.

[39]        
In personal injury litigation there never are identical plaintiffs,
circumstances or injuries and consequently authorities are, at the best,
guidance on the question of damages.

[40]        
On the evidence before me, I assess Ms. Savoie’s non-pecuniary
damages at $75,000.

[41]        
The parties have agreed on past income loss, after recognition of the
tax implications of $3,200, and that is awarded.

[42]        
The parties have agreed on special damages of $1,005.73, and that is
awarded.

[43]        
The plaintiff seeks damages for lost future earning capacity. An award
under that head of damages can be made upon a finding of a real and substantial
possibility of a future event leading to income loss: see Perren v. Lalari,
2010 BCCA 140 at para. 32. In this case, the plaintiff testified that she
fears that she will not be able to work another 14 years, which would take her
to retirement, because she is afraid she will not be able to sit at a desk that
long. She had a secondary fear that she may be required to drive to her
employer’s repair facility in Tumbler Ride to deal with service technicians. This
latter fear is highly unlikely to come true in my view, and indicates that the
plaintiff is somewhat emotionally fragile and, as Mr. Hansen described, more
fearful or more timid. This provides context in which to evaluate her former
fear and (despite the reasonable assumption that her fear is a result of the
psychological blow caused by the accident) leads me to the conclusion that the possibility
that she might not be able to work for another 14 years should not be elevated to
the level of a substantial possibility.

[44]        
The plaintiff testified, and I accept, that she loves her job. The
plaintiff’s symptoms are improving, albeit slowly. The plaintiff has not
established a substantial possibility of a future event leading to an income
loss in this case and I make no award for that.

[45]        
The plaintiff has claimed for costs of future care. Such claims must be
shown to be “medically justified”: see Milina v. Bartsch (1985),
B.C.L.R. (2d) 33 at para. 211.

[46]        
There was some evidence that the plaintiff could benefit from a
sit/stand desk at work, sessions with a kinesiologist, an exercise program,
physiotherapy, etc. These recommendations largely came from Dr. Caillier.
Dr. Caillier did not impress me as a completely neutral witness as some
parts of her reported recommendations lapsed into advocacy, particularly
suggestions that the plaintiff investigate different motorcycle clothing, or
her discussion of Ms. Savoie’s headaches, which was not borne out in
Ms. Savoie’s evidence at trial.

[47]        
There was no attempt by the plaintiff to quantify the cost of any of the
future care items sought and I have no evidence upon which I can determine that
the amounts claimed are reasonable: the second requirement set out in Milina.
I make no award for cost of future care.

[48]        
As I considered this matter, I became concerned that the evidence might
warrant consideration of an award for loss of housekeeping capacity. This had
not been argued by the parties and the pleading was barely capable of
supporting such an award as it only sought an in-trust award for the
plaintiff’s family for rendering “cleaning … and so on … assistance and
services.”

[49]        
I therefore invited further submissions in writing, which have been
received.

[50]        
The Third Party points to the opinion of Dr. Caillier, who said
that in spite of the chronic nature of her symptoms, Ms. Savoie is likely
capable of performing her household activities, although she might have to pace
herself or establish priorities. The Third Party argues that this establishes
that there is no medical evidence that Ms. Savoie is unable to perform her
housekeeping activities, and thus no award of damages is warranted.

[51]        
It seems to me that this argument misses the point: as unusual as it may
seem to many, before the accident Ms. Savoie was someone who could
properly be described as “house-proud”, in the sense that term was employed in Prednichuk
v. Spencer, 2009 BCSC 1396 at para. 113 (perhaps without the elements
of construction encompassed in that case). In this case, Ms. Savoie
expended considerable energy, and took great pride, in maintaining her home and
yard, in cooking, and in keeping vehicles clean (with the exception of her
husband’s dump truck).

[52]        
I agree with the Third Party that Ms. Savoie can do some, perhaps a
great deal, of what she could do before the accident. The fact remains that she
is impaired in her ability to do those things she did previously without
restriction. I find that as a result of the injuries she suffered in the
accident that she is no longer the person described by her son as “super mom”.

[53]        
The economic value of household activities was recognized in Kroeker
v. Jansen (1995), 4 B.C.L.R. (3rd) 178 (B.C.C.A.). How to quantify losses
involving unpaid work of economic value is a problem discussed in McTavish
v. MacGillivray, 2000 BCCA 164. In the latter case the court dealt with
claims for past loss of the ability to perform household tasks, and in doing
so, referred to the potential for unfairness that can arise if “hoovering” were
to be treated as a hobby or pastime, leading to awards for non-pecuniary
damages for loss of “hoovering” as an amenity. The court said at paras. 67-69:

[67]      This characterization undervalues or devalues
housework, and comes into direct conflict with the well-established recognition
of the economic value of housework at common law. Hoovering in Canada has never
been seen as a hobby. It is work of economic value, although the person who
"hoovers" may not be remunerated directly in money for what he or,
more frequently she, does. It is well to keep the distinction between unpaid
work of economic value and hobby in mind. The loss of a hobby requires compensation
by an award for a functional replacement. The loss of the ability to perform
household tasks requires compensation by an award measured by the value of
replacement services where evidence of that value is available.

[68]      In my view, when housekeeping capacity is lost, it
is to be remunerated. When family members by their gratuitous labour replace
costs that would otherwise be incurred or themselves incur costs, their work
can be valued by a replacement cost or opportunity cost approach as the case
may be. That value provides a measure of the plaintiff’s loss. Like the trial
judge I would prefer to characterize such compensation as general damages
assessed in pecuniary terms, reserving special damages for those circumstances
where the plaintiff actually spent money or incurred a monetary liability,
although I do not wish to state a settled view on that question in the absence
of full submissions as to the consequences of the distinction, if any.

[69]      A plaintiff who
performed the tasks with difficulty or functioned with the tasks undone and
never to be done will be compensated for that loss under the head of pain and
suffering and loss of amenity, just as she would if she were to go to work
every day, earning her regular wages, but suffer in the course of mitigating
her loss.

[54]        
The plea claiming an in-trust award was not supported at trial by
evidence, and there has been no argument supporting such a claim.

[55]        
The plaintiff here led no evidence by which any of the household
services can be valued, on either the replacement cost or opportunity cost
approach. I note that the court in McTavish expressed a preference for
the replacement cost approach over opportunity cost, at paras. 48-49. The
plaintiff has not hired anyone to perform household tasks that she would have
performed if not injured.

[56]        
I note that in Rezaei v. Piedade, 2012 BCSC 1782, the court
accepted $15 per hour as a value of lost housekeeping capacity, partly because
it had been used as a measure in earlier decisions, but also because it
accorded with evidence in that case of what a witness paid for similar
services. In Smusz v. Wolfe Chevrolet Ltd., 2010 BCSC 82, the court had
some evidence based on the plaintiff’s previous work as a housekeeper on which
to value housekeeping or cleaning services. I do not have such evidence in this
case.

[57]        
I find that Ms. Savoie was initially unable to perform some
household tasks. I find that she has recovered some of her ability to do
household tasks but with some difficulty and some adjustments to accommodate
her changed physical abilities.

[58]        
I do not read either Kroeker or McTavish as preventing me
from assessing damages for this aspect of Ms. Savoie’s loss as though it
were a loss of amenity. Indeed, I interpret para. 69 of McTavish,
quoted above, as inviting that approach.

[59]        
I do not accept the Third Party’s invitation to incorporate an award for
loss under this head into non-pecuniary damages. Such an approach would leave
the parties with no understanding of the reasoning or result of my findings.

[60]        
Largely because Ms. Savoie’s pre-accident approach to housekeeping
was such that it was more a pleasure than a task to her, and her loss in this
regard is more acute than many others might have experienced, I award $20,000
for loss of housekeeping capacity.

[61]        
In summary, I award Ms. Savoie:

[62]        
Unless there are submissions to the contrary, the plaintiff shall have
her costs of the action.

           “R.
T. Johnston J.”                   

The
Honourable Mr. Justice Johnston