IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140619

Docket: M111532

Registry:
Vancouver

Between:

Marie Helene Tchir

Plaintiff

And

South Coast
British Columbia Transportation Authority,
Coast Mountain Bus Company Ltd., Andre Tougas, and
Insurance Corporation of British Columbia

Defendants

Before:
The Honourable Mr. Justice Davies

Reasons for Judgment

I.                
INTRODUCTION

[1]            
On April 6, 2009, the plaintiff, Helen Tchir, who was then 60 years old,
was a sideways sitting passenger on a transit bus (the “bus”) driven by the
defendant, Andre Tougas, on Lonsdale Avenue in North Vancouver. Mr. Tougas
operated the bus as an employee of the defendants Coast Mountain Bus Company
Ltd. and South Coast British Columbia Transportation Authority (collectively,
together with Mr. Tougas, now called the “Transit Defendants”).

[2]            
When an unidentified driver came to an abrupt stop in front of the bus
Mr. Tougas was forced to brake hard to avoid a collision with the
unidentified vehicle. After the near collision the unidentified vehicle sped
off.

[3]            
Mrs. Tchir was thrown from her seat and landed on the floor of the bus
because of the hard braking engaged in by Mr. Tougas to avoid the
collision. She suffered serious injuries from the fall for which she now seeks damages.

[4]            
The defendant, the Insurance Corporation of British Columbia (“ICBC”),
has admitted liability on behalf of the unidentified driver for Mrs. Tchir’s
injuries but contests both the extent of her injuries and the amount of
compensation which she seeks for them.

[5]            
The Transit Defendants not only do not admit liability but also contest
both the extent of the injuries caused to Mrs. Tchir by the collision and the
amount of compensation which she now seeks.

[6]            
Although ICBC contests the quantum of recovery sought by Mrs. Tchir,
at the start of this trial counsel for ICBC applied to withdraw from further
attendance, asserting that ICBC would rely upon counsel for the Transit Defendants
to represent ICBC’s interests.

[7]            
That occurred notwithstanding that ICBC had admitted liability while the
Transit Defendants had not.

[8]            
With some reluctance I allowed the application by counsel for ICBC to
withdraw but only did so on the basis that ICBC would be bound by any findings
and rulings made in the trial process and could not later assert that its
interests had not been appropriately represented.

[9]            
I also ruled that in the circumstances of the withdrawal of independent
representation by ICBC I would not be prepared to undertake any apportionment
of liability as amongst the defendants if I were to find the Transit Defendants
were also liable for Mrs. Tchir’s injuries.

II.              
ISSUES

[10]        
The following issues arise for determination:

1)    Are the Transit
Defendants liable for injuries suffered by Mrs. Tchir in the near
collision of the bus with the unidentified driver’s vehicle so that they are
jointly and severally liable with ICBC for the damages suffered by her?

2)    To what damages
is Mrs. Tchir entitled for her:

a)    Non-pecuniary
losses for pain and suffering;

b)    Past income
loss;

c)     Future
loss of earnings;

d)    Cost of future
care; and

e)    Special damages.

III.            
BACKGROUND

[11]        
Mrs. Tchir and her husband, Robert (Bob) Tchir, had a long and
productive working life in the fast food industry in Alberta and in the
interior of British Columbia before moving to Vancouver in semi-retirement in
1994.

[12]        
Mrs. Tchir’s work experience before that move included managing a health
food store, running a fast food outlet with her husband and working as a
counsellor at a diet center.

[13]        
From 1994 until 2006 Mr. and Mrs. Tchir tried to live off
investments and savings. However, their semi-retirement did not go well
financially and they had to look for a new source of income.

[14]        
Mrs. Tchir then began looking for opportunities for work for both herself
and her husband.

[15]        
In 2005 she settled on the idea of managing an apartment complex as live-in
caretakers which she believed they could do until past the usual retirement age
of 65. Because of their debt situation and depletion of their savings such long
term employment income was important to them.

[16]        
On August 16, 2006, Mr. and Mrs. Tchir obtained employment as caretakers
at The Grande, an upscale high-rise commercial and residential condominium
complex in North Vancouver on Lonsdale Avenue at 13th Street NW.

[17]        
I will discuss the specifics of their remuneration, employment duties,
work performance and future prospects later when discussing the issues raised
by Mrs. Tchir’s claims for damages.

IV.           
the near collision

[18]        
On April 6, 2009, Mrs. Tchir boarded the bus operated by the
Transit Defendants at 13th Street NW and Lonsdale Avenue. The bus was
travelling southbound on Lonsdale and was quite full with at least one person
standing. Mrs. Tchir sat in a sideways positioned seat on the left side of
the bus in the forward part of the cabin.

[19]        
Mrs. Tchir testified that while she was seated and without warning, the
bus came to an abrupt stop that was “like hitting a brick wall.” She was thrown
from her seat onto the floor of the bus and landed on her left side. She lost
her glasses in the fall but they were given back to her by a passenger. She
said she crawled back to her seat and sat down.

[20]        
After the abrupt stop Mr. Tougas asked if anyone was hurt and Mrs. Tchir
told him she had hurt her face.

[21]        
Mr. Tougas reported the occurrence by radio to a supervisor and
then drove directly to the intended termination of his southbound route at
Lonsdale Quay.

[22]        
On arrival he told all passengers who had been hurt to remain on the
bus.

[23]        
After discussions with attending transit officials Mr. Tougas drove
those passengers who had remained on the bus, including Mrs. Tchir, to the Lions
Gate Hospital. After leaving the injured passengers at the hospital he
continued with his planned route northbound on Lonsdale Avenue.

[24]        
Mr. Tougas, the only witness who testified at trial as to what occurred other
than Mrs. Tchir, testified that when the near collision took place the
road conditions were dry and the weather was warm.

[25]        
His evidence was that as he was driving the bus in the curb lane
southbound on Lonsdale Avenue somewhere near Keith Road North (about one block
south of 8th Street NW), a car started to drift into the curb lane until there were
only a few feet between the front of the bus and the back bumper of the car. Mr. Tougas
knew the situation was potentially dangerous and that he had to create space
because of the possibility the car might brake suddenly. If that happened he
would not be able to stop in time to avoid a collision.

[26]        
Mr. Tougas did not wait for the car to fully enter his lane of travel
before slowing down from the speed of 35 to 40 kilometers per hour at which he
was travelling. He began to apply the brakes on the bus as the car edged into
the curb lane and he was able to create a gap of about one and one-half bus
lengths by decreasing the speed of the bus by between five and 10 kilometers
per hour.

[27]        
On discovery Mr. Tougas said he did not believe the passengers were
aware of the existence of the car in the curb lane that required him to begin
to brake to slow the bus down.

[28]        
That same car then came to a full stop in the curb lane just before
Keith Road South. Mr. Tougas pressed very much harder on his brakes so
that he was able to come to a stop about five to 10 feet from the rear bumper
of the unidentified vehicle.

[29]        
That hard braking caused Mrs. Tchir’s fall onto the floor from her
seat.

[30]        
The driver of the offending vehicle continued to travel in the curb
lane, likely unaware of the near collision his driving had precipitated.

[31]        
There is no stop sign for southbound traffic on Lonsdale Avenue at Keith
Road South where the near collision occurred.

[32]        
There is, however, a stop sign on Keith Road South at Lonsdale Avenue
for vehicles intending to either enter or cross Lonsdale Avenue from the west.

[33]        
Because Keith Road South is a one way street on which traffic moves from
west to east (left to right) across Lonsdale Avenue, no right-hand turn onto
Keith Road South from the southbound curb lane on Lonsdale Avenue (in which
both the car and bus were travelling) is possible.

[34]        
Mr. Tougas was aware of that prohibition.

[35]        
The intersection at Lonsdale Avenue and Keith Road South is protected by
crosswalks at both the north and south ends, however, Mr. Tougas did not see
any pedestrians in the crosswalk which would have required him to stop at the crosswalk.

[36]        
Mr. Tougas would not have had to stop as he did if the unidentified
driver had not come to the sudden and complete stop that caused the hard
braking needed to avoid a collision.

[37]        
The distance from the center of a south crosswalk on Lonsdale Avenue at
Keith Road North (near where the unidentified driver first drifted into
Mr. Tougas’ lane of traffic) to the center of the north crosswalk at Keith
Road South (near where the unidentified driver came to an unanticipated
complete stop) is about 105 meters.

V.             
LIABILITY OF THE TRANSIT DEFENDANTS

[38]        
The standard of care owed by the Transit Defendants to Mrs. Tchir
as a passenger is a high one. Also, once it is proven that a passenger is injured
while riding on a public transit vehicle, a prima facie case of
negligence is made out and the onus then shifts to the carrier to establish
that the injuries suffered by the passenger occurred without fault on the
carrier’s part.

[39]        
Those principles were summarized by McLachlin J. (as she then was)
in Planidin v. Dykes, [1984] B.C.J. No. 907 (S.C.) [Planidin] at
pages 3 and 4 as follows:

There is little dispute as to the legal principles applicable
in this case. The standard of care imposed on a public character is a high one.
This standard has been established in the Supreme Court of Canada decision Day
v. Toronto Transportation Committee [1940] S.C.R. 433, 4 D.L.R. 485 . At page
439 of that report of that case Davis, J. said:

·       
" The duty of the respondent to the appellant, its
passenger, was to carry her safely as far as reasonable care and forethought
could attain that end."

·       
At page 441 Hudson, J. in an oft-quoted passage, stated:

·       
" Although the carrier of passenger is not an insurer, yet
if an accident occurs and the passenger is injured, there is a heavy burden on
the defendant carrier to establish that he had used all due, proper and
reasonable care and skill to avoid or prevent injury to the passenger. The care
required is of a very high degree."

These, and other cases, establish
that once an accident occurs and a passenger is injured, a prima facie case in
negligence is raised and the onus shifts to the public carrier to establish
that the passenger’s injuries were occasioned without negligence on the
company’s part. The question then is: What suffices to discharge this onus?

[40]        
Concerning the last question posed, McLachlin J. went on to say:

This has been considered in at least two British Columbian
cases and I refer to Lawrie v. B.C. Hydro and Power Authority (unreported, May
31st, 1876, B.C.S.C. Vancouver Registry No. 32708/74) and Fischer v. B.C. Hydro
and Power Authority (unreported, February 19th, 1980, B.C.S.C. B781446). In the
latter case, at page 8, Taylor, J., set out what the defendant must show to
discharge the onus upon it in the following terms:

·       
" Thus there is in this case an onus on the defendants to show
that the plaintiff came by her injury without negligence on their part or as a
result of some cause for which they are not responsible. That is to say they
must show that the vehicle was being driven carefully at the time of her fall,
or that her fall resulted from some cause other than the manner in which the
bus was being driven."

[41]        
Also instructive on the issue of the standard of care expected of the
Transit Defendants in this case is the decision of Dardi J. in Prempeh
v. Boisvert, 2012 BCSC 304 [Prempeh] at para. 15, in which she
wrote:

…The standard of care owed to a
plaintiff passenger by a defendant bus driver is the conduct or behaviour that
would be expected of a reasonably prudent bus driver in the circumstances. This
is an objective test that takes into consideration both the experience of the
average bus driver and anything the defendant driver knew or should have known:
Wang v. Horrod (1998), 48 B.C.L.R. (3d) 199 at para. 39 (C.A.); Patoma
v. Clarke, 2009 BCSC 1069 at para. 6.

[42]        
There is no question that Mrs. Tchir was injured as a consequence of the
unexpected rapid deceleration of the bus from a speed of between 25 and 30 kilometers
to a full stop sufficient to cause her to be thrown from her seat onto the
floor of the bus.

[43]        
The Transit Defendants must accordingly meet the burden of proving that
Mr. Tougas’ conduct in rapidly decelerating by braking hard as he did to
avoid colliding with the unidentified vehicle that stopped unexpectedly near
Keith Road South met the standard of care expected of a reasonably prudent bus
driver in all of the circumstances known to him at the time.

[44]        
Counsel for the Transit Defendants submitted that there is no direct
evidence of negligence on the part of Mr. Tougas and that the inference
that he was travelling too fast or following too closely behind the unidentified
vehicle when it came to the abrupt stop is only speculative.

[45]        
In making that submission Mr. Wong relied on Lalani v. Wilson,
[1988] B.C.J. No. 2408 (S.C.) [Lalani], in which at page 3 Lysyk J.
said:

The issue of liability resolves itself to this. There is no
direct evidence of negligence on the part of Mrs. Wilson. The plaintiff
suggests that an inference ought to be drawn that Mrs. Wilson applied the
brakes unnecessarily or applied them too vigorously or was obliged to apply
them in the manner she did because she must have been travelling faster than
traffic conditions permitted. In my view, the evidence falls considerably short
of providing the basis for any such inference. To draw such a conclusion would,
in fact, involve mere speculation. It hardly needs pointing out that it is
necessary from time to time for the operator of a bus to apply the brakes in a
somewhat more abrupt fashion than usual as a result of an emergency or a
near-emergency or some sort of hazard suddenly presenting itself. One could
equally well speculate that failure to apply the brakes on the occasion in
question would have been negligent by reason of breach of a duty owed to
another user of the highway.

Certainly, there is a heavy responsibility on the operator of
the bus to exercise due care, But the defendants are not insurers and whatever
the onus upon the defendant, the situation is not one of res ipsa loquitur. I
have not lost sight of the frequently quoted passages from the decision in Day
v. Toronto Transportation Committee (1940) S.C.R. 433, and other decisions in
this court and elsewhere referring to the judgments in Day, upon which Mr.
McTavish here relies in support of his submission to the effect that where the
defendant is a common carrier the plaintiff enjoys the benefit of a reverse
onus. But so me meaning must be attributed to the recognition in those
judgments that the carrier is not an insurer, Further, in circumstances such as
those here present, where the possibility of injury was not self-evident and no
attention was drawn to such possibility at the time, the difficulties involved
in imposing a legal obligation upon the carrier to disprove negligence are
obvious. While expressed in positive terms of proving due care, in effect the
carrier is being called upon after the event to prove a negative, that is, that
the driver was not driving at an excessive rate of speed or had not failed to
keep a proper look out or was not otherwise careless.

The authorities do establish that
there is a high duty of care upon a defendant carrier. Having said that, the
question which remains to be answered is whether the evidence has established
that the duty was breached. I conclude that that question must be answered in
the negative.

[46]        
The Transit Defendants further relied on Erickson v. Sibble, 2012
BCSC 1880 [Erickson], for the proposition that it is not, of itself, a
breach of the standard of care for a bus driver to stop abruptly.

[47]        
In Erickson at para. 57, Ballance J. wrote:

[57] Although each case turns on
its own peculiar facts, the authorities inform the general principles at play.
Taken together, the decisions indicate that it is not, of itself, a breach of
the standard of care for a bus driver to stop abruptly, even where there is an
indication that special precautions may be warranted with respect to an
elderly, frail or physically compromised passenger. The issue of liability will
depend not only on the manner of the stop, but the reason for its suddenness
and the assessment of whether, in all the circumstances, the impugned driving
conduct was substandard when measured against the standard expected of a
reasonably prudent driver.

[48]        
The Transit Defendants also relied on the unreported January 28, 1999
decision of the Provincial Court of British Columbia (Vancouver Registry
95-10573) Stoddart v. Sinclair and BC Transit [Stoddart], in
which Mondin PCJ held that the driver of a bus that hit the claimant’s
vehicle after it changed lanes into the lane of travel of the bus and came to
an abrupt halt was not the fault of the bus driver. The author of the collision
was the claimant driver who had created the hazard which the bus driver had no
opportunity to avoid.

[49]        
I do not doubt the correctness of the principles expressed in Lalani and
Erickson in cases involving the alleged negligence of transit operators in
cases where passengers are injured.

[50]        
I do, however, note that in Erickson, at para. 67, Ballance J.
held that the driver of the bus was 75% liable for the damages suffered by the
plaintiff due to the driver’s “sudden and vigorous braking” which “caused the
bus to come to an abnormally abrupt and jarring stop.”

[51]        
I also do not doubt that the result in Stoddart was a correct one
as between the two drivers, but it is of no assistance to the determination of
any potential liability of the bus driver in that case to any passenger who may
have been injured because of the collision.

[52]        
After considering the totality of the evidence and the submissions of
both counsel, I have concluded the Transit Defendants have not proven that Mr. Tougas’
conduct met the requisite standard of care required of him in the
circumstances.

[53]        
I say that because:

1)    It is well
established that drivers of all vehicles must allow a sufficient distance
between their vehicle and those in front to stop safely in the event of sudden
or unanticipated stops in their lane of travel. See: Rai v. Fowler, 2007
BCSC 1678; Pryndik v. Manju, 2001 BCSC 502 at para. 21; and
Stanowski v. Samant, [1993] B.C.J. No. 1455 (S.C.) at
para. 29.

2)    A higher
standard of care is required of drivers of transit vehicles carrying
passengers. See: Planidin; Prempeh and Erickson as
previously discussed.

3)    Mr. Kurt Ising,
a Professional Engineer with expertise in accident reconstruction, who was
called to testify by the Transit Defendants, opined that the most important
issue in determining whether Mr. Tougas’ conduct met the standard required
of him in relation to the duty owed to his passengers is whether, in the
circumstances existing when the near collision occurred, Mr. Tougas had
created sufficient headway (or gap) between the bus and the vehicle which had
abruptly changed into the curb lane of traffic about 105 meters before the
near collision. I agree with that sensible observation which I find is in keeping
with the authorities to which I have referred.

4)    Mr. Ising also
testified in cross-examination that he was hard-pressed, when determining
whether a driver is maintaining sufficient headway, to think of another vehicle
on the road in normal city traffic that carries as many concerns for safety as
that of a transit bus.

5)    Mr. Tougas himself
testified that safety is the number one priority of a bus driver and that passenger
comfort is a secondary concern. He also testified under cross-examination that
part of his job is to expect the unexpected and also acknowledged that his job
is to leave enough room (gap) so that if a car in front of him does something
unexpected there is enough room to stop.

6)    In assessing Mr.
Tougas’ conduct and the degree of care required of him in that situation I note
that at the time of the near collision he was driving a bus with standees,
seated passengers including some (like Mrs. Tchir) seated sideways without
support, and at least one passenger with a stroller.

7)    He was also
following a vehicle driven by an erratic driver who had caused a near collision
by changing lanes precipitously in front of the bus at Lonsdale and Keith Road
North in what Mr. Tougas considered to be a “ridiculous” move.

8)    Mr. Tougas
reacted to the situation by braking gently and decelerating to create more
headway but did not anticipate that the unidentified driver would create
another dangerous situation by stopping at an intersection where he could not
make a right-hand turn rather than continuing through the intersection.

9)    The actual
headway created by Mr. Tougas after the dangerous lane change by the
unidentified driver at Keith Street North before the near collision at Keith
Street South was only about one and one-half bus lengths and the fact of the
hard stop that was necessary to prevent the collision satisfies me that one and
one-half bus lengths was, in all of the circumstances, insufficient headway.

10) The fact that insufficient headway
was created by Mr. Tougas would not alone ground a finding of liability if
he had not had the opportunity to create more than he did. The evidence does,
however, establish that he could have made a gentle stop at the crosswalk on
Lonsdale at Keith Road South had he begun decelerating about 50 meters
from that crosswalk.

11) The evidence of the plaintiff’s
expert witness, Mr. Donald Rempel, also a Professional Engineer, confirms
that the distance between where the unidentified vehicle came into Mr. Tougas’
lane of travel and the location of the near collision was sufficient to allow
Mr. Tougas to stop without incident if he had commenced deceleration
earlier.

12) Although Mr. Tougas did not
anticipate that the unidentified driver would stop abruptly where he did, he
also testified that he was aware that cars were stopped at the stop sign on
Keith Road South at Lonsdale, and acknowledged that in his experience drivers will
at times risk “scooting” across Lonsdale at the intersection from west to east
when they consider it safe to do so. If so, that can necessitate sudden stops
by vehicles travelling on Lonsdale which had occurred at least once in the past
while he was driving a bus on that same route.

13) I find that Mr. Tougas did
not call out any warning to his passengers about the need to brake quickly. While
he testified that it was his normal practice to do so, his report to his
employer about the incident did not indicate that he had warned his passengers,
and I accept Mrs. Tchir’s testimony that she did not hear a warning.

14) Although I am satisfied that the
near collision was primarily caused by the conduct of the unidentified driver
on whose behalf ICBC has admitted negligence, I am also satisfied that in all
of the circumstances, the most important of those being the previous erratic
driving of that driver which Mr. Tougas had already experienced, Mr. Tougas
did not sufficiently anticipate further problems by creating sufficient headway
to protect his passengers from injury when he had the opportunity to do so.

[54]        
In result, I find that the Transit Defendants have not met the burden of
establishing that Mr. Tougas’ conduct was not negligent or that it did not
contribute to Mrs. Tchir’s injuries.

[55]        
As I said when counsel for ICBC (with the support of counsel for the
Transit Defendants) sought leave to withdraw from participation in the trial
after admitting liability, the fact that the Transit Defendants and ICBC were
then proceeding with the same counsel representing the interest of both, I am
not prepared to apportion liability between ICBC and the Transit Defendants. If
they do eventually seek such apportionment it will have to be done in
proceedings as between themselves that do not involve Mrs. Tchir.

[56]        
Since there is no suggestion or evidence that Mrs. Tchir was contributorily
negligent in relation to the injuries suffered by her in the near collision,
ICBC and the Transit Defendants are jointly and severally liable to compensate
her for the damages she has suffered as a consequence of the negligence of the
unidentified driver and that of the Transit Defendants.

VI.           
THE AFTERMATH OF THE NEAR COLLISION

[57]        
Mrs. Tchir’s family doctor, Dr. Kathryn Atkinson, delivered an opinion
dated November 21, 2012, based upon her observation and treatment of Mrs.
Tchir from April 16, 2009, until the date of that report.

[58]        
Dr. Atkinson’s clinical records were also in evidence both for the
period covered by her report and thereafter until February 14, 2014, 10 days
before this trial commenced.

[59]        
I am satisfied that I can safely rely on Dr. Atkinson’s expert report in
recording the progress of the injuries suffered by Mrs. Tchir on April 6,
2009, and the medical interventions required to treat those injuries. The
report is comprehensive and accurately reflects Mrs. Tchir’s own credible testimony
at trial about her condition from time to time.

[60]        
Concerning Mrs. Tchir’s fall and its immediate aftermath in the 10 days
between the fall and her first visit with her, Dr. Atkinson wrote:

Ms. Helen Tchir was involved in a motor vehicle accident on
April 6, 2009. The first time I assessed her after the accident was on April
16, 2009. She described that there had been a motor vehicle accident while she
was a passenger on a bus on April 6, 2009. She stated that she was knocked off
her seat and landed on the floor. She felt disoriented.

She thinks she had a brief loss
of consciousness and noted that her thinking had not been right since. She
noted injuries to her right cheek, chest, neck, arm and back. She was assessed
in Emergency at Lions Gate Hospital. She stated that she had a CT scan of her
cheek and that no fracture was seen. She had a cervical collar put on. She felt
“not with it”. She had bruising of her right breast. She went to a walk in
clinic the day after the accident on April 7, 2009 where she was examined but
not given any painkillers. She went again to a walk in clinic on April 8, 2009
and was given Tylenol #3 but she found that it bothered her stomach. She was
not sleeping well except in a recliner. If she lay on her back she had trouble
breathing. On April 15^th 2009 she had so much pain that she went
back to Emergency at Lions Gate Hospital. There she reported that she had a
chest X-ray and electrocardiogram which were normal. She was given morphine and
slept that night. She noted that she had not been working since the motor
vehicle accident. She and her husband were co-managers of an apartment
building. On examination on April 16, 2009 she had bruising and tenderness of
the right cheek at the infraorbital rim (bony rim below the eye – part of the
eye socket). There was no facial asymmetry. Extraocular movements were normal.
Neurological examination of the nerves of the head (cranial nerves) were
normal. There was tenderness of the anterior (front) of the chest on the right
but no bruising. There was no bruising of the right breast. On examination of
the right shoulder there was tenderness of the right clavicle (collar bone),
the right acromion (tip of the scapula at the front of the shoulder). There was
tenderness of the right trapezius muscle. There was no tenderness of the spinous
processes of the cervical spine (i.e. no tenderness of the back bones of the
neck). There was tenderness of the right paraspinous areas of the neck. Spinous
processes of the thoracic and lumbar spine (back) were not tender. There was
tenderness of the right upper thoracic paraspinous musculature. There was
tenderness of the right scapula (shoulder blade). Range of motion of the neck
was reduced in all directions. Range of motion of the right shoulder showed
reduced abduction to ninety degrees (normal is one hundred and eighty degrees)
and very limited internal and external rotation. Diagnoses were made of Soft
Tissue Injuries of the right cheek, chest, right shoulder, neck and upper back
as well as post concussion symptoms. A request was made for a CT scan of the
head. She was advised to attend physiotherapy and massage therapy. She was
given a prescription for Pariet 20 mg daily as needed for stomach symptoms. She
was to take Morphine as prescribed by the Emergency physician. She was not able
to work. She was to make a follow up appointment for two weeks.

[61]        
Dr. Atkinson saw Mrs. Tchir as a consequence of her injuries suffered in
the fall almost once every month thereafter and often many more times than once
per month until November 21, 2012 (when she wrote her formal report) and
also until the start of this trial.

[62]        
Mrs. Tchir also attended upon various other medical professionals from
the date of her fall until the trial for assessment and treatment. That
treatment included surgeries on her right shoulder and right knee.

[63]        
The most significant injuries alleged by Mrs. Tchir as having been
caused by the defendants’ negligence were:

1)    Physical
injuries to her right cheek, and to her chest, neck and back, as well as to her
right shoulder and knee;

2)    Psychological
conditions including anxiety, sleeplessness and depression also resulting in upper
abdominal reflux due to medication taken for chronic pain.

A.             
Physical injuries

[64]        
The most debilitating physical injuries Mrs. Tchir claims to have
suffered when she fell were:

1)  Injuries
to her right shoulder consisting of not only soft tissue injuries but a rotator
cuff tear of the supraspinatus tendon which required surgery;

2)  Injuries
to her right knee consisting of not only soft tissue injuries but also a torn
meniscus of the right knee which required surgery and led to development of
iliotibial band syndrome; and

3)  Myokymia
and facial pain around her right eye.

[65]        
The defendants do not suggest that the physical injuries complained of
by Mrs. Tchir related to her right shoulder and around her right eye were not
caused by the fall.

[66]        
They do, however, assert that she has not established that the
difficulties she has endured with her right knee were causally connected to the
defendants’ negligence.

Right
shoulder

[67]        
The evidence establishes that the injuries suffered by Mrs. Tchir to her
right shoulder were the most serious of the injuries caused by the defendants’
negligence.

[68]        
After her attendance on Dr. Atkinson on April 16, 2009, Mrs. Tchir
received physiotherapy for all of her injuries including those to her shoulder
so that by May 11, 2009, she was attending physiotherapy twice per week.
She was also not able to work.

[69]        
On May 11, 2009, in addition to the general soft tissues injury to her
right shoulder diagnosed by her on April 16, 2009, Dr. Atkinson determined
that Mrs. Tchir had suffered a possible tendon injury to the rotator cuff.
Mrs. Tchir was advised to continue physiotherapy treatments which she did
by continuing to attend twice per week.

[70]        
Pain in her shoulder continued, notwithstanding those physiotherapy
sessions, and at the recommendation of her physiotherapist she saw a chiropractor
in the summer. She discontinued that treatment, however, because of increased
pain. Physiotherapy was then continued.

[71]        
By September of 2009 there had been little, if any, improvement in Mrs. Tchir’s
right shoulder discomfort. She had, however, returned to work and was coping
with doing some of the cleaning work she previously did at The Grande by
working far longer hours to do the same work and with the assistance of her
husband in doing work she could not tolerate because of her shoulder pain.
Acupuncture treatments provided some relief but it was only temporary.

[72]        
Due to lack of progress with the injury, Dr. Atkinson eventually
sent Mrs. Tchir for ultrasound investigation of her right shoulder in
November of 2009.

[73]        
Concerning that investigation and the treatment that followed, Dr. Atkinson
wrote in her report of November 21, 2012, that:

Ms. Tchir was seen subsequently on December 18, 2009. The
results of her right shoulder ultrasound done on November 13, 2009 were now
available. There was a fairly large full thickness tear in the supraspinatus
tendon involving most of the tendon. The other tendons were intact. There was a
little fluid in the shoulder joint. Her shoulder was very sore. A referral was
made to an orthopedic surgeon. She was advised not to do any lifting but to continue
with range of motion exercises. She was advised to not participate in a
rehabilitation program until she was assessed by the orthopedic surgeon.

On December 29, 2009 she was
reassessed. She had more pain in the right shoulder. She had hardly worked since
the last appointment as all of her work involves the right arm. Since the motor
vehicle accident she had been doing light duties such as dusting, wiping and
these tasks were more painful now. I gave her a prescription for Celebrex 200
mg daily (non-steroidal anti-inflammatory medication, similar to Ibuprofen).
She was unable to work and was given a note. She was awaiting assessment by the
Orthopedic surgeon.

[74]        
Following Dr. Atkinson’s advice, Mrs. Tchir stopped doing the limited
work she had been trying to do and did not then work for the next seven weeks.

[75]        
Dr. Atkinson’s report of her attendance upon Mrs. Tchir on
February 16, 2010, states:

On February 16, 2010 she reported
that she had not been working for the past 7 weeks. She had constant pain in
her right shoulder that radiated to her upper arm. She was wearing the shoulder
sling for support and had pain in spite of this. She had pain especially in the
posterior aspect of the shoulder (back of the shoulder). She was unable to work
because of the shoulder pain. She found that the Lyrica was too sedating and
did not really help with the pain. On examination there was weakness of the
right supraspinatus and a positive impingement test of the right shoulder. Most
of her right upper arm muscle testing was limited by pain. We were still trying
to get her in to see an orthopedic surgeon.

[76]        
That report is consistent with Mrs. Tchir’s own evidence.

[77]        
On February 16, 2010, on the advice of Dr. Atkinson, Mrs. Tchir
again stopped working at The Grande. The limited work she had previously been
doing was then done by her husband to the extent possible.

[78]        
Dr. Atkinson, as well as Dr. Peter Zarkadas to whom Mrs. Tchir was
referred for her shoulder injuries, attempted to relieve her symptoms with pain
medication which increased her irritability and also by way of cortisone
injections which did not help the pain. Lack of response to those interventions
as well as MRI examination eventually led Dr. Zarkadas’ decision that
surgery was necessary to attempt to repair the damage to her right shoulder.

[79]        
On July 15, 2010, Mrs. Tchir underwent surgery to repair a tear to the right
supraspinatus tendon.

[80]        
Post-surgery recovery included the use of a sling and pain medication as
well as physiotherapy and a directed exercise regime at home, however, in
addition to the pain she continued to endure Mrs. Tchir did not sleep
well. Also, for the first seven weeks while she was using the sling her husband
had to do all of the chores around the home as well as whatever work at The
Grande he could find time to do.

[81]        
By September 15, 2010, when she saw Dr. Atkinson for the second
time post-surgery, Mrs. Tchir was taking less pain medication and was no
longer using the sling. She did, however, continue with physiotherapy for her
shoulder into March of 2011, but still had not returned to work and also still
required a significant amount of pain medication for her shoulder injuries and
for sleep as well as for pain in her right knee which had become progressively
worse after December of 2010.

[82]        
On April 11, 2011, when physiotherapy on her shoulder was discontinued, Mrs. Tchir
returned to work.

[83]        
Her ability to work was still compromised by her weakened shoulder but
over time difficulties with her right knee also became a serious impediment to full
time employment and, as I will next discuss, also eventually led to surgery.

[84]        
Concerning her right shoulder injuries, the cause of those injuries and
the likely effect on her future health and work, Dr. Zarkadas wrote in his
medical-legal opinion dated July 20, 2013:

With respect to her right
shoulder injury, as she fell to the floor of the bus she complained of
immediate right shoulder pain. This fact is well supported the medical
documentation in Appendix A as well as my own assessment. The diagnosis is
clear. The diagnosis of impingement and a full thickness tear of the
supraspinatus are supported by the results of the MRI and subsequent shoulder
surgical repair. More likely than not, the rotator cuff tear is directly
attributable to the fall on the bus. It is very unlikely that she had a
pre-existing full thickness tear of her supraspinatus tendon. Although she has
benefitted from the surgical repair and follow-up, she continues to have
symptoms of pain and weakness. This has prevented her from returning to her
occupation as a resident manager of an apartment building, where the majority
of the tasks involve some form of cleaning. I would suggest that her prognosis
is guarded, with respect to her right shoulder, that even despite three years
since this surgery and ongoing physiotherapy, she remains quite symptomatic. I
would suggest that if she feels that she is benefitting from physiotherapy that
she should continue. The likelihood that further surgery in her case will not
be of benefit to her.

Right
knee

[85]        
The defendants take issue with whether the injuries to Mrs. Tchir’s
right knee, which she attributes to her fall on the bus on April 6, 2009, were
caused by the fall.

[86]        
The position advanced by the defendants is that the right knee
difficulties she has suffered from and which did not become a focus of medical
attention until almost 18 months later after the fall arose spontaneously
and were not connected to the fall.

[87]        
Although the defendants do not challenge Mrs. Tchir’s credibility
generally, counsel for the Transit Defendants does submit that the reliability
of her evidence with respect to the onset of her right knee complaints must be
critically examined.

[88]        
Mr. Wong submits that most important to that examination is the lack of
continuity of Mrs. Tchir’s knee complaints from the time of the near
collision until after the surgery on her shoulder had been performed in July of
2010 and after she had returned to work in April of 2011 when she was on her
way to whatever recovery would be available from that surgery.

[89]        
I am troubled by the lack of consistency of Mrs. Tchir’s knee
complaints over the period between April 6, 2009 until December 9,
2010, when they started to become a focus of her medical concerns.

[90]        
I do not, however, conclude that that lack of consistency must lead to a
finding that the injuries to Mrs. Tchir’s right knee were not caused or
materially contributed to by the defendants’ negligence or that her testimony
at trial concerning her knee injuries and the effect of them on her over time should
not be believed.

[91]        
I say that because:

1)  When Mrs.
Tchir first attended upon Dr. Atkinson on April 16, 2009, she complained
of injuries to the right side of her body generally and was sent to
physiotherapy.

2)  At her
first intake appointment with her physiotherapist, Ms. Shauna Franke, Mrs. Tchir
reported constant leg and knee pain. Ms. Franke testified that Mrs. Tchir
reported pain in the front of both of her knees and pain on the back of her leg
all the way down to the back of her knee.

3)  Mrs.
Tchir’s evidence and that of Mr. Tchir, that I accept, was that after the
collision Mrs. Tchir’s ability to work was compromised not only by her
shoulder injuries but her inability to walk down stairs from the 17th floor of
The Grande to inspect the stairways and her inability to kneel to do work
requiring that positioning of her body. Examples given were the cleaning of
bathrooms and gymnasium equipment. Mrs. Tchir also reported that she had
to take frequent breaks to ice areas that were causing her pain, including her
right knee.

4)  On May
14, 2010, as well as on May 21, 2010, Mrs. Tchir reported an increase in
posterior knee discomfort to her physiotherapist. Also, on June 10, 2010,
a treatment provider at the Kinetic Rehabilitation Center noted that her “right
knee does not extend”.

5)  When
Mrs. Tchir reported her knee pain to Dr. Atkinson on December 9, 2010,
Dr. Atkinson’s diagnosis was that it had “flared up” due to a decrease in
the amount of Ibuprofen she was then taking after pain associated with her
shoulder injuries had subsided somewhat.

6)  There
is no evidence of any insult to Mrs. Tchir’s right knee at any time prior
to her reporting of a flare-up in her knee pain to Dr. Atkinson.

7)  In
November of 2012, Dr. Atkinson was of the opinion that:

With regard to her knee injuries, she has been diagnosed
with iliotibial Band Syndrome (connective tissue from the iliac crest (pelvis)
to the outside of the knee, flexion contracture of the knee and tears of the
cartilage (medial and lateral menisci). Ms. Tchir did not report her knee
symptoms to me for some time after the accident. She had a number of other
injuries that she was dealing with right after the accident and, in addition, had
a head injury with resulting lack of clarity in her thinking. She had a lot of
pain and reduced mobility and I think that at least some of her right knee
injuries resulted from the motor vehicle accident. It is difficult to say
whether the meniscal tears were a result of the accident. Her prognosis for
full recovery of her right knee function is somewhat unknown at present as she
is still recovering from surgery. The surgery, however, will not have had any
effect on the iliotibial band pain or the flexion contractures. She may have
persisting soft tissue pain in her right knee even when she has recovered from
the arthroscopic meniscal repairs.

8)  Dr. Zarkadas observed in his
report of July 13, 2013:

With respect to her right knee she did have pre-existing
mild tri-compartmental arthritis. This was noted on her X-ray report dated
December 30, 2010. She states that she had no symptoms of this arthritis prior
to the accident. She had no functional limitation prior to this fall, no
restricted range of motion that she reported or recalled. There is no doubt
that she sustained some trauma to her knee during the fall, as stated by Ms.
Tchir, also shown by the bruising and swelling noted of the anterior aspect of
her knee from a picture taken after the bus accident. [Emphasis added.]

9)  Dr. Zarkadas then reached the
conclusion that:

With respect to her right knee the story is a little less
clear, in terms of causation. Ms. Tchir does attribute the onset of all her
current knee pain and stiffness to the bus accident. The reason the issue of
causation is relevant, is that she did have asymptomatic knee arthritis at the
time of the bus injury, and took some time to formally report this complaint of
right knee pain and stiffness to her GP, Dr. Atkinson. Among the documents
provided was a picture of a bruise to her right thigh above the knee. Her knee
injury was also described in her statement of the injury on April 9, 2009. Dr. Atkinson,
in her report dated November 21, 2012, commented that the main reason for the
delay in reporting her right knee pain is that she had multiple injuries that
were of more immediate concern. She also likely sustained a head injury namely
a concussion during the fall. It was not until December 9, 2010, well over a
year from the accident did Ms. Tchir start complaining of worsening right knee
pain sufficient to warrant reporting to Dr. Atkinson. The X-ray and MRI of her
right knee following the accident, as well as the findings at the time of
arthroscopy, clearly demonstrate mild to moderate arthritis in the joint that
likely predated the accident.

It is my opinion, as her treating surgeon, that the onset
of the pain of her right knee did occur at the time of the bus accident on
April 6, 2009. She essentially had pre-existing asymptomatic arthritis that
became symptomatic as a direct result of the accident. In the absence of this
accident, would the right knee of become symptomatic on it’s own given the
pre-existing arthritis? The answer to this question is likely yes. Did the
accident accelerate the deterioration of her knee arthritis and development of
a knee contracture? The answer to this question again is likely yes. Are
the tears of her menisci attributable to the accident itself rather than the arthritis
alone? I would state that the meniscal tearing is most likely degenerative in
nature, but that any twisting of the right knee during the fall could have
easily worsened or propagated these tears that I observed at the time of
surgery. The delay in seeking treatment for the knee is reasonably
understood by the explanation provided by Dr. Atkinson. I think Ms. Tchir
had more pressing medical concerns with respect to her shoulder and the delay
in documentation was not because she was not symptomatic. I suspect her right
knee became symptomatic since the time of her accident and it likely worsened
over time. Overall I would characterize her prognosis as guarded. I would
encourage her to lose some weight and continue a gentle exercise program that
involves walking and aqua-therapy. In her lifetime, I would suspect [that] she
will eventually need a knee replacement.

[Emphasis added.]

10)   I
accept Dr. Atkinson’s explanation for the likely reasons for Mrs. Tchir’s
delays in reporting of her knee injuries until December of 2010. It is plainly obvious
that her shoulder issues were the primary source of her pain and disabilities
at work but that does not mean that she was not also suffering from some knee
pain. Dr. Atkinson testified that sometimes when patients have a lot of
pain they do not report all of their injuries to her. I also cannot overlook
the likely effect of the reduction of Mrs. Tchir’s knee pain because of
the heavy dosage of pain medication she was on for her shoulder injuries up
until the time of her shoulder surgery after which pain medication was reduced.
Hence, the phraseology of a “flare up” used by Dr. Atkinson in her
contemporaneous notes of her examination of Mrs. Tchir which I conclude
records an ongoing rather than a new or spontaneous medical condition.

11)   I
accept Dr. Zarkadas’ opinion and conclude that Mrs. Tchir’s fall on the
bus likely accelerated the deterioration of existing knee arthritis and the
development of the knee contracture. I also accept his opinion that the fall
could easily have “worsened” or propagated the meniscal tears he observed at
the time of surgery.

[92]        
I accordingly find that Mrs. Tchir’s right knee injuries requiring eventual
surgery which, together with her right shoulder injuries, required her to
stop work at The Grande altogether in 2012 were caused or materially
contributed to by the negligence of the defendants.

Myokymia
and facial pain around her right eye

[93]        
On April 16, 2009, Dr. Atkinson diagnosed Mrs. Tchir as suffering
from “bruising and tenderness of her right cheek at the infraorbital rim (bony
rim below the eye-part of the eye socket)” as a consequence of having fallen to
the floor of the bus.

[94]        
On February 2, 2011, she was assessed by a Dr. Chew as suffering
from myokymia, a benign condition of involuntary twitching optionally treatable
with Botox injections. On the advice of her usual ophthalmologist she did not
take those treatments and by September of 2011 her right cheek was symptom
free.

B.             
Psychological conditions

[95]        
The medical evidence establishes that it is possible that Mrs. Tchir
suffered a brief loss of consciousness when she struck her head when she fell
to the floor of the bus. She was disoriented and her thinking was unclear for
about a week. There is, however, little evidence of her having suffered long
term effects of a concussion.

[96]        
The totality of the evidence does, however, convince me that the after
effects of the fall upon Mrs. Tchir’s life were devastating and that the toll
that her physical injuries (primarily her shoulder and eventually her knee, and
the pain associated to them) took on her resulted in the anxiety,
sleeplessness, depression and other mood issues with which she has had to cope
since the fall.

[97]        
The pain emanating from her physical injuries also resulted in the
necessity to take many different kinds of pain, mood and sleep medications all
of which had a profound impact on her ability to function not only at work but
in her daily life outside of work.

[98]        
In addition, the many medications she was required to take resulted in
an increase in upper abdominal reflux symptoms which itself exacerbated her
depression.

C.             
Prognosis

[99]        
The impact of the injuries suffered by Mrs. Tchir in her fall culminated
in the loss of her ability to work after May 8, 2012. Although she had
tried to return to work after her shoulder surgery in April of 2011, she was
never able to return to her previous level of work and her husband did more and
more of the work for her as he had before her shoulder surgery.

[100]    
In her medical-legal report of November 21, 2012, Dr. Atkinson
wrote:

Ms. Tchir had an increase in upper abdominal symptom of
reflux as a result of the amount of Ibuprofen (Advil) that she was taking in
order to try and control her pain. She also has had a lot of difficulty
sleeping because of the pain and has had to sleep in a recliner because it is
has been too uncomfortable to lie down flat in bed. She has also had a
recurrence of depression as a result of her long term pain and disability. She
has also had anxiety regarding travelling on buses since the accident.

Ms. Tchir has had very significant disability as a result of
the motor vehicle accident. Ever since the accident she has been unable to
fully carry out her duties as resident manager of an apartment building. She
had a period of total disability after her shoulder surgery. She returned to
work in April 2011. As she increased her duties over the next year she
developed more right shoulder pain and had more side effects from the increased
amount of medication that she was taking. Thus, her disability progressed to
the extent that she became unable to work as a resident manager and she remains
totally disabled from this job. In addition, she has been and
remains unable to carry out many of her household chores and relies on her
husband to do so. As a result of Ms. Tchir being unable to continue to work,
her husband lost his job as a resident manager because they were hired as a
couple. Furthermore, once they no [longer] held the positions of resident
managers they had to move. Ms. Tchir is 64 years old with significant
restrictions in her physical abilities. It will be very difficult for her to
get another job. In my opinion it is likely that Ms. Tchir is permanently
disabled.

Ms. Tchir has also had disability with
respect to her leisure time activities.

Ms. Tchir
continues to require physiotherapy for her right shoulder and knee.
Kinesiologist supervision of a rehabilitation exercise program is also
recommended. She would also benefit from having cleaning help at home on a
regular basis. She may require a hospital type bed so that she can elevate the
head and foot of the bed as required.

[101]     In her
testimony at trial, Dr. Atkinson testified that all of those concerns continue
to exist and her opinion remains the same.

[102]     The
totality of the evidence at trial supports those opinions and conclusions.

VII.          
DAMAGES

[103]     As noted
above, Mrs. Tchir seeks compensation for the injuries she has suffered as a
consequence of the defendants’ negligence under the following heads of damages:

a)    Non-pecuniary
losses for pain and suffering;

b)    Past income
loss;

c)     Future
loss of earnings;

d)    Cost of future
care; and

e)    Special damages.

A.             
Non-pecuniary losses for pain and suffering

[104]     The
purpose of non-pecuniary damages in personal injury cases is to compensate the
injured party for their pain and suffering, loss of enjoyment of life and loss
of enjoyment of amenities caused by the fault of a tortfeasor.

[105]    
In Stapley v. Hejslet, 2006 BCCA 34 [Stapley] at para. 46,
Kirkpatrick J.A. set out a useful, non-exhaustive list of factors that offer
guidance as to what may influence an award of non-pecuniary damages. The list
included the:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

[106]    
Kirkpatrick J.A. went on to say:

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

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

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

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

[107]     With those
considerations in mind I will now assess the compensation to which I consider
Mrs. Tchir is entitled for her pain, suffering, and loss of enjoyment of
life for the injuries she suffered as a consequence of the defendants’
negligence.

[108]     The
injuries suffered by Mrs. Tchir in the near collision and her being thrown
to the floor of the bus range from relatively minor to devastating.

[109]     The
bruising of her chest and legs largely resolved within weeks but the soft
tissue injuries to her neck and back continued for at least two years when, in
September 2011, Dr. Weiss, whom Mrs. Tchir had seen, reported to Dr. Atkinson
that as of that date she still suffered from diffuse musculoskeletal
complaints.

[110]     By far the
most all-consuming injury from which Mrs. Tchir has suffered was, however,
the injury to her right shoulder, the progress of which I have detailed above.
It resulted in a decreased ability to work from April 6, 2009, until
February 11, 2010, after which she had to stop work completely for more
than a year until April 1, 2011. Her pain and loss of work led to
emotional distress and reliance on medications that negatively impacted her
life emotionally and physically.

[111]     The
flaring of her knee pain shortly after her shoulder surgery and return to work then
continued to exacerbate her pain and suffering, the need for medication and the
continued negative effect of medication, reflux difficulties, lack of sleep,
anxiety and depression.

[112]     After May
8, 2012, Mrs. Tchir was no longer able to work, resulting in the loss of
not only her job but also her husband’s income, as well as the loss of the
apartment they had, as managers, been entitled to occupy at The Grande.

[113]     Mrs. Tchir
underwent knee surgery on August 8, 2012, but recovery from that has been
long and arduous and her prognosis is still only “guarded”.

[114]     The
suffering Mrs. Tchir has endured because of the fall has now lasted almost five
years and she will likely continue to suffer from it into the future with only
limited reduction. That suffering has had a disastrous impact on her personal
life as she has moved from being a dynamic, highly social individual who
enjoyed outings with her daughter and husband to existence in a life in which
she is in constant pursuit of pain relief and medical treatment.

[115]     She is now
more than 65 and does not face the prospect of the healthy energetic and relatively
prosperous life she could have lived into and past retirement had it not been
for the defendants’ negligence.

[116]     Mr. Lee on
behalf of Mrs. Tchir asserted that an appropriate award of non-pecuniary
damages in this case would be from $100,000 to $120,000.

[117]     In support
of that submission he referred me to: Hanson v. Yun, 2013 BCSC 2313 [Hanson],
($120,000); and Latuszek v. Bel-Air Taxi (1992) Limited, 2009 BCSC 798 [Latuszek],
($100,000). He also submitted that any adjustment to the award because of any pre-existing
arthritis in her right knee should be minimal.

[118]     Mr. Wong
on behalf of the defendants suggested that an award in the range of $35,000 to
$80,000 would adequately compensate Mrs. Tchir for her injuries for which
the defendants should be held responsible and that she should receive no
compensation for the pain and suffering related to her right knee.

[119]     In making
that submission he referred me to: Battrum v. British Columbia, 2009
BCSC 716 [Battrum], ($35,000); Miller v. Fraumeni, 2005 BCSC 1232
[Miller], ($55,000); Antonishak v. Piebenga, 2012 BCSC 745,
($60,000); John v. Landry, 2006 BCSC 1767, ($70,000); Kralik v. Mt. Seymour
Resorts Ltd. et al, 2007 BCSC 258, 2008 BCCA 97, ($75,000); Kolberg
v. Gileff, 2007 BCSC 1662, ($75,000); and Burtwell v. McCaffrey,
2013 BCSC 886, ($80,000).

[120]     Other
cases are of some, but limited, assistance in determining an award for
non-pecuniary damages. Each person who endures a debilitating injury is unique
and the nature of the injuries suffered by plaintiffs and their life
circumstances will rarely be identical.

[121]     I must observe
at the outset that I consider the decisions in Battrum and Miller,
relied upon by the defendants, to be outside of the range of appropriate and
adequate compensation for the totality and severity of the injuries suffered by
Mrs. Tchir and the lasting and ongoing effect of them on her past and
future well-being.

[122]     The cases
cited by both counsel which I do find useful in this case establish to my
satisfaction that for a serious shoulder injury requiring surgery of the type
endured by Mrs. Tchir with only limited success and a resulting permanent
disability together with long lasting pre-trial chronic pain and a very guarded
prognosis for any improvement, a non-pecuniary award in the broad range of from
$70,000 to $120,000 is warranted.

[123]     After
considering these authorities in the context of the totality of the evidence in
this case, I would have considered an award of $85,000 for Mrs. Tchir’s
non-pecuniary losses for her shoulder injuries and all other injuries other
than her knee injuries alone.

[124]     In
deciding upon that appropriate award of $85,000 for Mrs. Tchir’s injuries other
than her knee injuries I have considered her age at the time of the collision
as requiring downward adjustment from the awards in Hanson ($100,000 at
age 43) and Latuszek ($120,000 at age 46) referred to by counsel for
Mrs. Tchir.

[125]     I am also,
however, satisfied that damages for the totality of Mrs. Tchir’s injuries
must be adjusted upwards to account for the added impact of the injury to her
right knee upon her past and future pain and suffering, as well as the chronic
pain she has suffered and the effect of medications upon her overall still diminished
physical and psychological functional capacity.

[126]     That
upward adjustment must, however, also be considered in light of Dr. Zarkadas’
opinion that Mrs. Tchir’s fall on the bus likely accelerated the
deterioration of existing knee arthritis and that the development of the knee
contracture and that the fall could easily have “worsened” or propagated the
meniscal tears he observed at the time of surgery.

[127]    
Dr. Zarkadas’ opinion makes it necessary to apply the principles
enunciated in Athey v. Leonati, [1996] 3 S.C.R. 458 [Athey] at
para. 32, in which Major J. (for the Court ) stated:

32 The
essential purpose and most basic principle of tort law is that the plaintiff
must be placed in the position he or she would have been in absent the
defendant’s negligence (the “original position”). However, the plaintiff is not
to be placed in a position better than his or her original one. It is
therefore necessary not only to determine the plaintiff’s position after the
tort but also to assess what the “original position” would have been. It is the
difference between these positions, the “original position” and the“injured
position”, which is the plaintiff’s loss. In the cases referred to above, the
intervening event was unrelated to the tort and therefore affected the
plaintiff’s “original position”. The net loss was therefore not as great as it
might have otherwise seemed, so damages were reduced to reflect this.

[128]    
The likely acceleration of Mrs. Tchir’s existing arthritis to the
development of the difficulties that eventually required surgery and caused
additional pain and suffering and that has continued to contribute to her post
fall condition also requires consideration of the so called “crumbling skull”
rule addressed by Major J. in Athey at para. 35, in which he
said:

35        The
so-called “crumbling skull” rule simply recognizes that the pre-existing condition
was inherent in the plaintiff’s “original position”. The defendant need not put
the plaintiff in a position better than his or her original position.
The defendant is liable for the injuries caused, even if they are extreme, but
need not compensate the plaintiff for any debilitating effects of the
pre-existing condition which the plaintiff would have experienced anyway. The
defendant is liable for the additional damage but not the pre-existing damage:
Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages
for Personal Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if
there is a measurable risk that the pre-existing condition would have
detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence, then this can be taken into account in reducing the
overall award: Graham v. Rourke, supra; Malecv. J. C. Hutton
Proprietary Ltd., supra; Cooper-Stephenson, supra, at pp.
851-852. This is consistent with the general rule that the plaintiff must be returned
to the position he would have been in, with all of its attendant risks and
shortcomings, and not a better position.

[129]     In Mrs.
Tchir’s case the evidence establishes that although there was a chance that
Mrs. Tchir would have eventually suffered the injuries to her right knee
that manifested in the aftermath of her fall, it also establishes to my
satisfaction that the defendants’ negligence exacerbated the weakened condition
of her knee and, as Dr. Zarkadas said, accelerated the deterioration.

[130]     Accordingly,
I find while her “original position” of a knee susceptible to eventual
deterioration must be considered in assessing damages, it is not a factor which
in totality should amount to a large reduction of an otherwise appropriate
award for all of her pain and suffering caused or materially contributed to by
the defendants’ negligence.

[131]     In all of
the circumstances I have assessed the injuries to Mrs. Tchir’s right knee
and their impact upon her overall condition as requiring compensation by an
award of $35,000 in addition to that required to compensate her for her other
injuries, including most significantly her right shoulder injuries. I have then
reduced that “independent” award for pain and suffering related to her right
knee injury by $10,000 to account for her “original position” in relation to
her knee to her now “injured” position.

[132]     While I
recognize that it is unusual to assess different aspects of a plaintiff’s
injuries in determining an appropriate award for non-pecuniary loss I have done
so in this case to address the issues raised by the defendants about a
pre-existing condition concerning a discrete injury and its impact upon
causation issues as previously discussed.

[133]     In total,
after considering her overall “injured” position as compared to her “original”
position, I am satisfied that an award of $110,000 will appropriately
compensate Mrs. Tchir for all of her non-pecuniary losses caused by the
defendants’ negligence.

[134]     In
reaching that conclusion, I have not increased the award because different injuries
were involved in determining quantum. The award is intended to compensate
Mrs. Tchir for the impact of the totality of her injuries upon her loss of
enjoyment of life for which the defendants are liable.

B.             
Past income loss

[135]     Mrs. Tchir
advances a claim of $88,499 net of income tax for her past loss of income to
the date of trial. That claim includes a claim for loss of income (from August 17,
2013, to the date of trial on March 7, 2014), a period which is beyond a
generally accepted retirement age of 65.

[136]     Her claim
also includes a claim for reduced rent while Mrs. Tchir was on medical
leave from January 2011 to March 31, 2011, due to issues concerning tax
treatment of a taxable benefit to Mr. Tchir greater than that to which he
may have been entitled when Mrs. Tchir was not working.

[137]     In part,
Mrs. Tchir’s claim for past income loss also concerns that period of time prior
to the cessation of both her employment and that of her husband at The Grande
in May of 2012. That claim is based on the principle, enunciated in Hall v.
Miller (1989), 41 B.C.L.R. (2d) 46 (C.A.), that notwithstanding her husband
did work that she was otherwise employed to do, she is still entitled to
damages for her inability to work. The defendants do not dispute the
applicability of that principle to the facts of this case.

[138]     The
defendants acknowledge that Mrs. Tchir is entitled to damages for her past
loss of income in the amount of $32,700 net of taxes for the period from
February 16, 2010 until April 1, 2011, when she returned to work after
shoulder surgery.

[139]     The
defendants also, however, assert that Mrs. Tchir is not entitled to any
past loss of income after April 1, 2011, when she returned to work after
recuperating from her shoulder surgery. That submission is based upon the
proposition that the loss of her employment from and after May 8, 2012,
when she again ceased working after having worked since April 11, 2011,
arose as a consequence of her problems with her right knee that the defendants
submitted were not caused by their negligence.

[140]     I cannot
accept that submission because as I have previously found that the knee
injuries suffered by Mrs. Tchir that required Mrs. Tchir to stop working
at The Grande on May of 2012 after diagnoses by Dr. Zarkadas and Dr. Atkinson
and required surgery in August of 2012 and from which she will likely never
fully recover (and which also added to her incapacity to work because of
unresolved shoulder injuries), were caused or materially contributed to by the
defendants’ negligence.

[141]     I have
thus concluded that while some reduction of Mrs. Tchir’s past wage losses
is necessary to account for the pre-existing weakness in her right knee
identified by Dr. Zarkadas, the extent of the required reduction is
minimal.

[142]     I reach
that conclusion because of Dr. Zarkadas’ opinion that the acceleration of
the onset of Mrs. Tchir’s asymptomatic arthritis caused by the fall likely
contributed to its manifestation five to 10 years earlier than might otherwise
have been the case.

[143]     Since the
period of past wage loss claimed by Mrs. Tchir occurred within five years
of her fall on the bus, I will only reduce her claim by $5,000 for the negative
contingency of an earlier onset of arthritic degeneration that might have
impacted her ability to work earlier than it did.

[144]     I also
note that the fact that even if an earlier onset of the debilitating effect of
the arthritis might have occurred, Mrs. Tchir was still substantially disabled
from employment by her right shoulder injury from which she never fully
recovered.

[145]     I must
also advert to the proposition advanced by the defendants in disputing Mrs. Tchir’s
claim for compensation for past income loss after May 8, 2012, that the
termination of Mrs. Tchir’s employment at The Grande resulted from work
performance causes unrelated to her injuries.

[146]     I find no
support for those allegations because:

1)    The totality of evidence
establishes that any performance problems that might have been attributed to
either Mr. or Mrs. Tchir by the chair of The Grande’s strata council did
not cause the termination of the employment of both as the managers of The
Grande.

2)    The offer of
continued employment to Mr. Tchir after May 8, 2012, at a reduced
rate because of Mrs. Tchir’s medical incapacity to fulfil one-half of the
expected functions of a management couple is, in my view, conclusive evidence
that the loss of Mrs. Tchir’s employment (and the consequential loss of
the value of the apartment in which she and Mr. Tchir resided while
employed at The Grande) was caused solely by Mrs. Tchir’s injury related inability
to perform her share of the work.

[147]     As I will
also later discuss when considering Mrs. Tchir’s claim for future loss of
earning capacity, I am not persuaded by the totality of the evidence that but
for the defendants’ negligence Mrs. Tchir would have stopped working at
The Grande on August 17, 2013, when she reached age 65.

[148]     I
accordingly do not reduce her past income loss award because of that
possibility.

[149]     I am,
however, not satisfied that Mrs. Tchir is entitled to damages in the
amount of $600 related to the claim for reduced rent while on medical leave.
There was a paucity of both evidence and analysis concerning why some diminution
of a taxable benefit arising from Mr. and Mrs. Tchir’s reduced
apartment rent available to them because of their employment should result in an
award of damages. I find that Mrs. Tchir has not proven her claim for that
alleged loss.

[150]     In result,
based on the evidence of past income adduced by Mrs. Tchir, the
documentary proof of the remuneration and benefits available to Mr. and
Mrs. Tchir under their employment contract with The Grande and the expert
reports of Mr. Gerry Taunton filed by Mrs. Tchir (and updated to the
date of trial), I find that Mrs. Tchir is entitled to an award for past
income loss of $83,499.

[151]     As noted,
that award is as calculated by Mr. Taunton, net of income tax as required
by Laxdal v. Robbins, 2009 BCSC 1074, and does not include any interest.
It also reflects the $5,000 reduction I have considered necessary to account
for negative contingencies arising from pre-existing conditions related to Mrs. Tchir’s
right knee.

C.             
Future Loss of Income Earning Capacity

[152]    
In Perren v. Lalari, 2010 BCCA 140, our Court of Appeal settled
the question of how claims for impaired earning capacity can be addressed.
After a long discussion and review of different approaches that had been
applied in past cases, Garson J.A. stated for the court at para. 32:

[32] A plaintiff
must always prove, as was noted by Donald J.A. in Steward, by
Bauman J. in Chang, and by Tysoe J.A. in Romanchych, that
there is a real and substantial possibility of a future event leading to an
income loss. If the plaintiff discharges that burden of proof, then depending
upon the facts of the case, the plaintiff may prove the quantification of that
loss of earning capacity, either on an earnings approach, as in Steenblok,
or a capital asset approach, as in Brown. The former approach will be
more useful when the loss is more easily measurable, as it was in Steenblok.
The latter approach will be more useful when the loss is not as easily
measurable, as in Pallos and Romanchych. A plaintiff may indeed
be able to prove that there is a substantial possibility of a future loss of
income despite having returned to his or her usual employment. That was the
case in both Pallos and Parypa. But, as Donald J.A. said in Steward,
an inability to perform an occupation that is not a realistic alternative occupation
is not proof of a future loss.

[153]     Counsel
for Mrs. Tchir submits that an award of from $156,000 to $295,000 is necessary
to compensate Mrs. Tchir for her impaired earning capacity.

[154]     His
submission is primarily based upon an earnings approach based on loss of income
for future employment at The Grande at the low end until at least age 70 or at the
high end to age 75.

[155]     Counsel
for the defendants submits that Mrs. Tchir has not proven that she is
entitled to any damages for her loss of future income earning capacity.

[156]     In the
alternative, the defendants submit that if any future loss of earning capacity
award is to be made, it should be reduced by 50% to 70% because of the
existence of Mrs. Tchir’s pre-existing knee conditions which they submit
is the primary cause of any loss of future income Mrs. Tchir might suffer.

[157]     The
defendants further submit that Mrs. Tchir is not totally disabled from work and
any award for impaired earning capacity should be reduced to account for her
residual capacity work.

[158]     I do not
accept that there is an evidentiary basis for a reduction of an otherwise
appropriate award for loss of earning capacity because Mrs. Tchir may not
be totally disabled from doing any kind of work.

[159]     The
lasting debilitation caused to her physical well-being caused by her injuries,
the chronic pain and related emotional difficulties from which she still
suffers, exacerbated by the side effects of her ongoing difficulties with pain
medicine and her present age preclude any reduction for residual earning
capacity.

[160]     I have also
previously rejected the defendants’ submission that the right knee injury was
not caused or materially contributed to by the defendants’ negligence and thus
find that the substantial deduction of 50% to 70% sought by the defendants
relating to an otherwise appropriate award for future loss of income earning
capacity is not warranted.

[161]     The
medical evidence that I have discussed in some detail in considering Mrs. Tchir’s
claims for non-pecuniary loss and past loss of income also convinces me that
the right shoulder injuries suffered by her in her fall were the primary cause
of her loss of income earning capacity and that her right knee injury only exacerbated
or added to a much diminished work capacity caused by her shoulder injury.

[162]     I do not,
however, agree that the totality of the evidence supports an award in the range
advanced by counsel for Mrs. Tchir.

[163]     While I am
satisfied that the loss of earnings approach outlined in Mr. Taunton’s
report is appropriate in this case to the extent that it is based on past
earnings and reasonable projections, I am also satisfied that the straight line
projection used by him and urged upon me by counsel for Mrs. Tchir does
not adequately reflect negative contingencies that must be accounted for in
assessing Mrs. Tchir’s loss of future earning capacity.

[164]     Her counsel’s
submissions on the appropriate quantum of loss also do not address any impact
Mrs. Tchir’s pre-existing right knee condition may have had on the loss of
her future employability.

[165]     As a
starting point in the analysis of the appropriate award for loss of future
income earning capacity, I find that the evidence establishes that it is more
than likely that Mrs. Tchir and Mr. Tchir would have continued to
work at The Grande as its managers past the age of 65.

[166]     The
economic reality of their life situation prior to Mrs. Tchir suffering her
injuries and their enjoyment of their work together with the benefits it gave
them all subjectively and objectively establish to my satisfaction that their
employment would likely have continued to age 70.

[167]     I do,
however, also consider it unlikely that she would have worked at The Grande to
age 75, given the physical demands of the job.

[168]     The
evidence of Mr. Chris McInnes, the Professional Manager of The Grande on
behalf of its strata council, establishes that there is no mandatory retirement
age for managers employed in situations like those in which Mr. and Mrs. Tchir
were employed at The Grande. He testified that he had seen managers like Mrs. Tchir
work “into their 70s,” but did not suggest how long into their 70s that might
be.

[169]     I have
concluded that a finding of likely retirement at age 70 will adequately address
both negative and positive contingencies unrelated to Mrs. Tchir’s
injuries concerning employment past that age.

[170]     Based
solely upon that analysis, arithmetic calculation of a future income stream
discounted for the present value of money would result in a loss of future
income award of $156,000.

[171]     I am,
however, also satisfied that an otherwise supportable award of $156,000 must be
reduced because of Mrs. Tchir’s pre-existing right knee condition and evidence
that the difficulties she faced with it at an earlier date because of the
defendants’ negligence would likely have manifested within five to 10 years of
her fall on the bus in any event.

[172]     While her
knee injury exacerbated the impact of her right shoulder injury on her ability
to do her work when it did, I am also satisfied that even if the shoulder
injury had not occurred her pre-existing knee condition could have had a
substantial impact upon her ability to work well after age 65.

[173]     In all of
the circumstances, in considering negative contingencies and her pre-existing
susceptibility to arthritis in her knee, I am satisfied that an award of $120,000
will fairly compensate Mrs. Tchir for her loss of future earning capacity
caused by the defendants’ negligence.

D.             
Costs of Future Care

[174]     Recently,
in Gignac v. Insurance Corporation of British Columbia, 2012 BCCA 351 [Gignac],
our Court of Appeal reviewed principles that govern the assessment of cost of
future care awards.

[175]    
In Gignac at paras. 28-30, Bennett J.A., for the Court,
stated:

[28] In Andrews v. Grand & Toy Alberta Ltd.
(1978), 83 D.L.R. (3d) 452 at 462, Dickson C.J.C. said:

In theory a claim for the cost of future care is a pecuniary
claim for the amount which may reasonably be expected to be expended in putting
the injured party in the position he would have been in if he had not sustained
the injury. Obviously, a plaintiff who has been gravely and permanently
impaired can never be put in the position he would have been in if the tort had
not been committed. To this extent, restitutio in integrum is not
possible. Money is a barren substitute for health and personal happiness, but
to the extent, within reason, that money can be used to sustain or improve the
mental or physical health of the injured person it may properly form part of a
claim.

[29] The purpose of the award for costs of future care is to
restore, as best as possible with a monetary award, the injured person to the
position he would have been in had the accident not occurred.

[30] The award is “based on what
is reasonably necessary on the medical evidence to promote the mental and
physical health of the plaintiff: (Milina v. Bartsch (1985), 49 B.C.L.R.
(2d) 33 (B.C.S.C.) and adopted in Aberdeen v. Zanatta, 2008 BCCA
420 at para. 41.

[176]    
Bennett J.A. also went on to state at para. 32:

[32] The failure of the trial
judge to perform an analysis of each item sought by the plaintiff with respect
to whether there was “some evidentiary link between the physician’s assessment
of pain, disability and recommended treatment and the care recommended by a
qualified health professional” was a legal error.

[177]     In this
case, Mrs. Tchir seeks the following amounts for the costs of her future
care which she says arise from the defendants’ negligence:

1)  Kinesiology
treatments based upon 42 sessions over one year, totalling $3,240;

2)  Physiotherapy
treatments over the next 10 years based upon 12 sessions per year at
$143 per session, totalling $17,160;

3)  Massage
therapy based upon 20 one-hour treatments, totalling $2,100;

4)  Household
cleaning services for 10 years based upon one hour per week at $25 per
hour, totalling $13,000;

5)  Cost of
medication based upon $50 per month for health store expenditures and an
additional $14 per month for prescribed pain medication.

[178]     The
evidence of Dr. Atkinson establishes the necessary link between her assessment
of Mrs. Tchir’s future needs related to her ongoing physical disabilities,
chronic pain and emotional suffering arising from the defendants’ negligence to
require compensation for Mrs. Tchir’s necessary future care costs related
to all of the interventions she has identified.

[179]     The
defendants acknowledge that some of the future care costs sought by Mrs. Tchir
should be allowed.

[180]     More
specifically, the defendants submit that: the cost of kinesiology treatment in
the total amount of $3,240; one half of the costs of the physiotherapy
treatment sought ($9,880); and, one half of the massage treatment sought ($1,050)
should be allowed.

[181]     The
defendants do not, however, accept that the totality of the physiotherapy and
massage therapy treatments sought should be awarded because of their reliance
on the submission that Mrs. Tchir’s knee injury was not caused by her
fall.

[182]     The
defendants also submit that the claim for housecleaning service should be
denied because notwithstanding Dr. Atkinson’s recommendation that it would
be of assistance in assisting Mrs. Tchir with her ongoing pain and
suffering, there is no evidence that she is in real need of the assistance
suggested both because she has not resorted to such assistance in the past and
because her husband has done that work which she has not been able to do.

[183]     They also
say that if any award for housecleaning assistance is to be made it should be
reduced by 50% due to the fact that any need is attributable to her right knee
injury for which the defendants disclaim responsibility.

[184]     The
defendants further submit that while some award for ongoing medication may be
warranted, the amount sought is not reasonable and should be discounted because
of the right knee injury for which they say they are not responsible.

[185]     After
considering the submissions of both counsel in light of the totality of the
evidence I have concluded that the following awards for the costs of Mrs. Tchir’s
required future care caused by the defendants’ negligence are reasonably
necessary to promote her physical and mental health:

1)  Kinesiology
treatments based upon 42 sessions over one year, totalling $3,240 as claimed
and as acknowledged by the defendants.

2)  Physiotherapy
treatments over the next 10 years based upon 12 sessions per year at
$143 per session, totalling $17,160 but reduced to $14,000 to account for Mrs. Tchir’s
pre-existing right knee weakness which according to Dr. Zarkadas was
likely to manifest in some right knee related disability within five to 10 years
of her fall on the bus and to account also for the incurring of costs over
time. I do not accept the 50% reduction asserted by the defendants both because
I have found that the defendants’ negligence materially contributed to the
early onset of her present right knee injuries requiring surgery and because of
the effects of her still ongoing shoulder injury and the very guarded prognosis
for full recovery from it.

3)  Massage
therapy based upon 20 one-hour treatments, totalling $2,100 but reduced to
$1,700 to account for Mrs. Tchir’s pre-existing right knee weakness to the
same extent and for the same reasons I reduced the award for physiotherapy and
to account also for the fact that the costs will be incurred over time.

4)  Household
cleaning services upon one hour per week at $25 per hour will be allowed at $5,000
(for five years) rather than $13,000 (for 10 years) as claimed. I reach
that conclusion because:

a)  Mrs. Tchir has not
previously employed any cleaning service although I also recognize that, at
least in part, that failure to do so was contributed to by the financial difficulty
in which she was placed because of her loss of employment in 2012 when
housekeeping assistance was first recommended;

b)  Mrs. Tchir’s husband has
provided unpaid assistance in the doing of heavier household tasks that she
could not do because of her injuries and I am satisfied that he will do so in
future;

c)  I am satisfied also that
the assistance given by Mr. Tchir to Mrs. Tchir is within the bounds of
what is to be expected of family members such that the evidence would not
support an “in-trust” award for the unpaid provision of such services;

d)  Mrs. Tchir testified that
she is now beginning to do more of the household tasks than she was previously
able to do which in my view, especially in light of her now somewhat improving post
surgery knee condition, makes a five year period of assistance reasonable and necessary
in the circumstances rather than the 10 year period of compensation sought;

e)  Compensation for a five
year period would result in an award of $6,500;

f)   As I have previously
found, with respect to her claims for massage and physiotherapy, some reduction
must be made for her pre-existing right knee injuries; and

g)  The $5,000 award also accounts
for the fact that the costs will be incurred over a five year period.

5)  I will
allow ongoing medication costs based upon an expenditure of $28 per month ($300
per year) for a further 15 years, for a total of $5,000. In reaching that
conclusion I have not allowed Mrs. Tchir’s claim for health store
expenditures in the amount of $50 per month as it lacks sufficient medical
support. I have increased the amount claimed for prescribed medication from $14
per month to $28 per month because of the ongoing adjustment of her medication
and her intolerance to many medications as well as the need for ongoing over
the counter (Advil) medication to control her pain and suffering as has been
necessary in the past. An award of $5,000 for ongoing medication is roughly
three times the amount spent by Mrs. Tchir for medications in the almost five
years between the time of her fall on the bus and the date of trial so that it
reflects the likely costs to be incurred in future over a 15 year period.
I make no deduction for the fact that the costs will be incurred over time or
because of her pre-existing condition because of my uncertainty as to the
adequacy of the award.

[186]     The total
award for Mrs. Tchir’s costs of future care will accordingly be $28,940,
comprised of awards for:

1)    Kinesiology:
$3,240;

2)    Physiotherapy:
$14,000;

3)    Massage therapy:
$1,700;

4)    Housecleaning
assistance: $5,000; and

5)    Costs of
medication: $5,000

E.             
Special Damages

[187]    
In Redl v. Sellin, 2013 BCSC 581 at para. 55, Saunders J.
wrote:

[55] Generally speaking, claims for special damages are
subject only to the standard of reasonableness. However, as with claims for the
cost of future care (see Juraski v. Beek, 2011 BCSC 982; Milina v.
Bartsch (1985), 49 BCLR (2d) 33 (BCSC)), when a claimed expense has been
incurred in relation to treatment aimed at promotion of a plaintiff’s physical
or mental well-being, evidence of the medical justification for the expense is
a factor in determining reasonableness. I accept the argument expressed through
Dr. Frobb, that a patient may be in the best position to assess her or his
subjective need for palliative therapy. I also accept the plaintiff’s counsel’s
argument that in the circumstances of any particular case, it may be possible
for a plaintiff to establish that reasonable care equates with a very high
standard of care. In the words of Prof. K. Cooper-Stephenson in Personal
Injury Damages in Canada, (2d ed., 1996) at p. 166:

Even prior to the Supreme Court’s endorsement of the
restitution principle [in Andrews v. Grand & Toy Alberta Ltd. and Arnold
v. Teno], in the area of special damages the courts had been prepared to
allow optimum care, and damages were awarded for expenses of a character that
stretched far beyond the resources of even an affluent Canadian.

That being said, and while Dr.
Frobb’s paradigm of the patient becoming their own physician may have at least
a superficial appeal, plaintiffs are not given carte blanche to
undertake any and all therapies which they believe will make them feel good.

[188]    
Mrs. Tchir seeks reimbursement of out-of-pocket expenses she says were
incurred by her as a consequence of the defendants’ negligence as follows:

[189]     These
amounts were modified in final argument from previous amounts claimed to
reflect Mrs. Tchir’s counsel’s acknowledgment of claims which were not
supported by the evidence or were otherwise not properly compensable.

[190]     The
defendants do not dispute Mrs. Tchir’s claims for: medication;
acupuncture; MRI examination; transportation relating to bus costs and parking
and gym memberships, totalling $3,943.60.

[191]     They also
acknowledge responsibility for $3,374.79 of the $3,484 claim for moving
expenses, arising from the need for Mr. and Mrs. Tchir to relocate
after the loss of their apartment at The Grande arising from Mrs. Tchir’s
inability to do the work required of her because of her injuries. They dispute
the balance of that claim as well as the claim for $495 for mileage claimed as
part of the transportation claim as not being their responsibility because some
of the mileage had to do with trips to visit lawyers and for visits to family
members before the move was completed.

[192]     The
defendants also assert that they should be required to compensate Mrs. Tchir
for only $1,425 of the physiotherapy costs she incurred because $890 of the amounts
paid were for right knee related physiotherapy. They make the same submission
for a $40 expense for supplies related to her knee surgery that formed part of
the $111.31 miscellaneous expense claim.

[193]     I do not
accept that any deduction should be made from the physiotherapy and knee
surgery supplies claims advanced by Mrs. Tchir. I have previously found
that the defendants’ negligence materially contributed to her knee injuries and
I am not satisfied that the evidence establishes that any deduction should be
made for the exacerbation of any pre-existing knee weakness when the costs
incurred to attempt to overcome the effects of that exacerbation occurred
within a period when onset of a knee injury was not likely to have occurred.

[194]     I also do
not accept that the amounts for mileage contested by the defendants should be
removed from the award for special damages in this case. During argument
counsel removed many of the claims made by Mrs. Tchir related to the move
as well as mileage costs related to attendances upon lawyers. I find that the
revised amounts sought by her for moving expenses and for transportation for
medically related matters were all reasonably and appropriately incurred and supported
by the evidence.

[195]     I
accordingly allow Mrs. Tchir’s claims for special damages as claimed in
final argument in the amount of $10,348.91.

VIII.        
SUMMARY

[196]     I find
that the defendants are jointly and severally liable to Mrs. Tchir for the
following damages caused by their negligence:

1)    Non-pecuniary
damages: $110,000

2)    Damages for past
loss of income: $83,499

3)    Damages for
future loss of income earning capacity: $120,000

4)    Damages for cost
of future care: $28,940

5)    Special damages:
$10,348.91

Total award: $352,787.91

IX.           
costs

[197]     Unless
there are matters of which I am unaware, Mrs. Tchir shall have her costs
against the defendants on Scale B.

“Davies
J.”