IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Isbister v. Delong, |
| 2014 BCSC 1395 |
Date: 20140724
Docket: 12-1056
Registry:
Victoria
Between:
Kimberly Isbister
Plaintiff
And
Paige Delong
Defendant
Before:
The Honourable Mr. Justice Bowden
Reasons for Judgment
Counsel for the Plaintiff: | A. Berns |
Counsel for the Defendant: | G.L. Shumka |
Place and Date of Trial/Hearing: | Victoria, B.C. February 25-28; March |
Place and Date of Judgment: | Victoria, B.C. July 24, 2014 |
Table of Contents
A. Plaintiffs
Pre-Accident Background
B. Injuries
Sustained by Plaintiff
1. The
First Two to Three Weeks at Home
17. Plaintiffs
Current Condition
E. Plaintiffs
Functional Capacity
C. Loss
of Future Income Earning Capacity
I.
introduction
[1]
The plaintiff, Kimberly Isbister, seeks damages for injuries that she
suffered in a motor vehicle accident.
[2]
On June 29, 2010, the plaintiff was travelling northbound on her motor
scooter at the intersection of Jenkins Road and Jacklin Road in Victoria,
British Columbia when the defendants vehicle collided with her motor scooter. The
plaintiff was thrown over the hood and roof of the defendants vehicle and
landed on the roadway, sustaining serious injuries. The defendant has admitted
liability.
II.
Evidence
A.
Plaintiffs Pre-Accident Background
[3]
Ms. Isbister is 38 years of age and has lived at 3061 Glen Lake
Road in Victoria, B.C., for the past 17 years. It is a rented
three-bedroom residence. She resides with her partner, Joseph Fowler. They met
in 1996 when he was a chef and she was a server at the Tudor House Pub. She has
a daughter, Stephanie, who is 21 years of age.
[4]
Ms. Isbister completed high school in Victoria by correspondence. She
then completed a legal secretary program at CompuCollege and an accounting
course at Sprott Shaw. She worked briefly as a legal assistant but did not
enjoy the job. She then started working as a server and worked at various
restaurants and pubs culminating in her employment as a server at the Checkered
Flag restaurant and the Waterwheel Pub. For about two years she worked at the
Checkered Flag in the morning and the Waterwheel Pub in the evenings every
Friday, Saturday, Sunday and Monday. On Tuesdays she worked only at the
Checkered Flag and Thursdays only at the Waterwheel. During that period her day
off was Wednesday each week. She stopped working at the Checkered Flag around
the middle of 2006 but continued to work at the Waterwheel Pub. She did not
return to work at the Waterwheel Pub after the accident. The Waterwheel closed
permanently in July 2011.
[5]
Ms. Isbisters social life involved mainly friends from her
workplace. She and Mr. Fowler entertained friends about once a week. She
led an active life, including attending a gym three times a week, as well as
jogging each week. She and Mr. Fowler would attend concerts and Canucks
hockey games in Vancouver about four times a year. They would vacation each
year to Las Vegas or the Calgary Stampede. They would also stay at a resort in
Tofino. They enjoyed fishing together on Vancouver Island. They used to own a
29-foot motorhome and would use it for camping each year.
[6]
They own two large dogs that they take walking three times a day. They
used to take the dogs hiking.
[7]
Before the accident Ms. Isbister did the majority of the housework
and cleaned their house about three times a week. She also did the grocery
shopping each day because Mr. Fowler liked to cook with fresh ingredients.
Ms. Isbister looked after the gardening except for mowing the lawn. That
was done by Mr. Fowler. Ms. Isbister has carried out various
renovations to their house with the help of Mr. Fowler and their friends.
[8]
Ms. Isbister describes her health before the accident as excellent.
She had not sustained any serious injuries at work except once when some hot
water was spilled on her. She missed two days of work and made a Workers Compensation
claim. She does smoke one-half to one package of cigarettes each day and drinks
liquor socially.
[9]
Ms. Isbister testified that when she worked at the Waterwheel she
had 40 or 50 regular customers. She mainly served beer and says that her
customers would drink between four and eight beer each evening.
[10]
She said that before the accident she would work at least 40 hours
each week. At her examination for discovery she said that she worked 80 to 85
hours each week. She testified during the trial that at the discovery she was
mistaken about those hours and was not intending to exaggerate.
[11]
At the Waterwheel, she earned $10.50 per hour as a salary and testified
that she consistently received $1,000 each week in tips. She shared her tips
with the cook and bartender and would keep the equivalent of about 10% to 15%
of her sales. She received her share in cash at the end of her shift. At first
she said that 60% of the customers paid with a credit card and 40% with cash. Later
in the proceedings she said that about 70% paid with a credit card. She said that
she also served at two annual Christmas parties at the Waterwheel and received
an additional $1,200 in tips.
[12]
A former supervisor at the Waterwheel, Michelle Zaharia, testified that
on busy nights servers could have sales of $1,100 to $1,800 a night. She said
the plaintiff was at the higher end of that range with sales of $1,800 to
$2,000 on busy nights. If tips ranged from 10% to 15% of sales, then her
evidence suggests that the plaintiff could have received tips in the range of
$180 to $300 on busy nights.
[13]
Ms. Isbister said that when she was working at the Waterwheel she
moved around quickly and always wore running shoes. She said it was about
25 steps from the kitchen to her favourite serving section.
[14]
Ms. Isbister testified that she also did some gold trading from a
computer in her residence. She used her tip money to buy gold and then sold it
on an internet site. She carried on gold trading for about two and a half years
but discontinued that activity after the accident. This required her to be at
her computer for about 10 hours each week. She described this as sedentary
work. She said that she was not able to continue this business after the
accident because she did not have the funds to purchase gold and she was not
able to sit at the computer long enough to do it.
[15]
Ms. Isbister was audited by the Canada Revenue Agency in 2007 and
was assessed tax on her tips that she had not reported. She told the Court that
she did not then know that tips had to be included in income. She then hired a
tax preparer to assist her. She first learned from her co-workers in 2005 that
tips should be reported as income; however, in 2006 she did not include any of
her tips in her income. She says that she thinks that she forgot to include
them. She said she used a tax preparer, Donna Cowen, to prepare her tax returns
from 2007 to 2012. She said she earned about $52,000 in tips in 2007 but did
not declare any tips in her income. She offered no explanation for that. In
2008, only $2,112 was reported as her income from tips. This was based on 10%
of her salary income. Similarly, in 2009, she reported $2,659 as tips. In 2010,
when she worked for about one half the year before the accident she says that
she received about $26,000 in tips but did not report any of those for tax
purposes. Of the hundreds of thousands of dollars she says that she received in
tips up to the time of the accident she only reported about $6,000 for tax
purposes. She testified that she had told Donna Cowen that her income from tips
was $1,000 each week but her tax preparer did not prepare her tax returns
properly and still under-reported her income. Ms. Cowen denies being told
that by Ms. Isbister. Ms. Isbister said that she first learned that
Donna Cowen had under-reported her income late in 2010 after the accident. Even
with the awareness that Donna Cowen was under-reporting her income, the
plaintiff did not change accountants or take other steps to ensure that the
correct amount was reported. She denied that she was simply not prepared to
report tips that she did not receive. She considered disclosing her actual tip
income to the CRA but was advised that it would not look good for the purposes
of these proceedings.
[16]
In 2008 Ms. Isbister reported net income from gold trading of
$7,241. In 2009 she reported net income from gold trading of $5,566 and in
2010, for the one-half year before the accident, she reported $1,520 of net
income from gold trading. The income from gold trading in 2010 arose from one
sale. She has not carried on any gold trading since the accident.
[17]
Donna Cowen testified. She is employed by a business referred to as
Liberty Tax Service. There was no evidence of her education or professional
qualifications. She has prepared tax returns for many servers. She testified
that her clients tell her what amount to include as income from tips but Ms. Isbister
did not tell her that she earned $1,000 a week in tips. She said that Mr. Fowler
gave her the plaintiffs tax return for 2010 and they did not discuss tips. She
said that it was an oversight not to include any income from tips in the
plaintiffs tax return for 2010.
[18]
Ms. Isbister made much of her spending habits prior to the accident.
She said that she would spend money frivolously and without much thought while
living what she described as a lavish lifestyle. She testified that from the
tips that she received each week she would spend $700 and deposit about $300 in
the bank.
[19]
At her examination for discovery, Ms. Isbister said something quite
different. She said that of the $1,000 that she received each week she would
spend about $300 and put the balance of about $700 in her bank account at
Scotiabank. The bank records do not confirm that. She said she had been
mistaken at her examination for discovery.
[20]
Her partner, Mr. Fowler, said that he was somewhat aware of what Ms. Isbister
received in tips. His evidence varied from hers. He said that on Thursdays and
Fridays she would earn about $300 in tips and on other days she received about
$100.
[21]
Ms. Isbister testified that she kept envelopes at her home where she
would deposit cash for different purposes like a planned trip. She paid for
most purchases with cash. On their vacations, such as in Las Vegas or Tofino, Ms. Isbister
said that they spent mostly cash. She testified that they bought their motor
home with $15,000 in cash.
[22]
There is no evidence to corroborate her spending habits. Banking records
indicate that numerous purchases were made with her Visa card. Those records
also disclose a number of cheques written by her that were not honoured due to
insufficient funds. She says that she was prepared to accept repeated charges
for n.s.f. cheques rather than depositing her tips in the bank.
[23]
Ms. Isbister faced a $12,000 debt to the Canada Revenue Agency but
negotiated a payment of $500 per month as the amount that she could afford. She
said that she gave postdated cheques to the CRA for 2010 and then paid directly
at the bank. Her bank records do not indicate that cheques were paid to the CRA
in 2010.
B.
Injuries Sustained by Plaintiff
[24]
Ms. Isbister described the accident and how it left her in the
hospital for nine days. She underwent surgery by Dr. Torstensen the day after
the accident to repair a compound fracture of her femur and tibula in her left
leg. A metal rod and plate were inserted.
[25]
She received a number of scrapes and abrasions, most of which resolved
in the normal course of a few months.
[26]
She experienced some necrosis of the skin near her left knee. It healed
by December of 2010.
[27]
She suffered injuries to her shoulder and neck which are considered by
the experts to be soft tissue injuries.
[28]
She suffered an injury to her low back and left hip but no broken
vertebrae or damage to her hip resulted. These injuries are described by the
experts as soft tissue in nature. Dr. Conway considered these to be permanent, but
deferred to the experts.
[29]
The fracture of the plaintiffs left tibial plateau will result in her
knee remaining stiff and uncomfortable to some degree and she is likely to
experience progressive degenerative changes to the knee.
[30]
She described having a bladder issue in the hospital that necessitated a
catheter but only while she was in the hospital. She also experienced some
necrosis on her leg about six weeks after the accident. As late as the fall of
2011 she was still experiencing pain in her left leg. Parts of her left leg
continue to be numb.
[31]
The plaintiff asserts that she suffered from broken teeth from the
accident. She did not see a dentist until 19 months after the accident and
that was for a routine examination and not because she was having a problem
with her teeth. I have concluded that the teeth difficulties experienced by the
plaintiff were not as a result of the accident.
C.
Expert Opinions
1.
Dr. B.P. Conway
[32]
Dr. Conway gave evidence as the plaintiffs general physician for over 30 years.
[33]
He saw Ms. Isbister after the accident on July 6, 2010, when
she had been discharged from the hospital and he reported on the nature of her
injuries.
[34]
The plaintiff attended Dr. Conways office on July 23, 2010, in a
wheelchair and complained of pain. Dr. Conway prescribed Oxycodone and Lyrica
for her pain. He said that by this time the scab had gone from her shin and the
area of the prior injury had not enlarged.
[35]
When he saw the plaintiff on August 30, 2010, she was still in a
wheelchair and complained of pain in her right shoulder which prevented her
from using crutches. The wound on her left shin was smaller. She was then
taking OxyContin for her pain.
[36]
By September 27, 2010, Dr. Conway said that the plaintiff was able to
weight-bear but continued to use OxyContin and Oxycodone for episodes of pain.
[37]
Dr. Conway ordered an ultrasound of her bladder because she complained
of problems urinating. The ultrasound did not show any abnormalities.
[38]
On October 15, 2010, the plaintiff complained of hip problems. No
abnormalities were found when Dr. Conway had tests done.
[39]
On November 22, 2010, the plaintiff reported to Dr. Conway that, since the
debridement of her knee by Dr. Torstensen, the range of motion of her left leg
had decreased and she could no longer bear weight on it.
[40]
By December 6, 2010, the lesion on the plaintiffs left leg had healed
and she was attending physiotherapy four times each week. At her visit on December 20,
2010, the plaintiff informed Dr. Conway that she had been placed on
antibiotics because her left leg had become infected.
[41]
By January 3, 2011, Dr. Conway said that Ms. Isbister could now
flex her knee to 90 degrees. Testing determined that she no longer had an
infection in her leg. On January 17, 2011, the plaintiff complained to Dr.
Conway that she was experiencing pain in her left leg. She had been encouraged
to start walking by Dr. Torstensen, and Dr. Conway reinforced that advice.
She continued on Oxycodone and Lyrica for pain relief.
[42]
On April 26, 2011, the plaintiff informed Dr. Conway that she was having
withdrawal problems from discontinuing OxyContin. That medication was restarted
so that she could begin tapering off of it more slowly.
[43]
On June 6, 2011, Dr. Conway reported that the plaintiff was walking
without a cane but limping and still taking Oxycodone.
[44]
At subsequent visits the primary complaint of Ms. Isbister was the
pain she experienced. By February 12, 2012, she reported that her pain
level was down to 5/10 and she was content with this degree of pain resolution.
Dr. Conway began minimizing the dose of pain killers, however, she began seeing
a pain specialist, Dr. Vincent.
[45]
On December 18, 2012, Dr. Conway concluded that Ms. Isbister had
contracted shingles on her left flank and treated it.
[46]
On August 18, 2013, Ms. Isbister complained to Dr. Conway of
increased pain in her left leg and that it was causing her difficulties in
trying to sleep.
[47]
Dr. Conway concluded that Ms. Isbister had ongoing musculoskeletal
problems resulting from the accident. His view was that her knee pain was
secondary to the accident and resulting fracture. In spite of the serious
fracture he said that she was able to walk without a cane and without narcotics
for pain relief but still required analgesics. He stated his belief that
because her bladder dysfunction was not present prior to the accident, it
therefore was due to the accident. He also concluded that her back, hip and
shoulder injuries resulted from the accident and were soft tissue in nature. He
deferred to the experts but opined that there was no cure for these ongoing
issues.
[48]
As far as employment in the future is concerned, Dr. Conway opined that Ms. Isbister
would be unable to work other than at a sedentary job. He also said there would
be restrictions on her full time employment due to the continuing pain, use of
medication and attendances for treatment.
[49]
On cross-examination, Dr. Conway agreed that he was not aware of any
abdominal or pelvic injury caused by the accident. He also agreed that the use
of OxyContin and Oxycodone can affect the functioning of the bladder, although
he said a urologist is better qualified to speak about her urinary issues.
2.
Dr. Eric Torstensen
[50]
Dr. Torstensen, an orthopaedic surgeon, attended the plaintiff at the
Victoria General Hospital on the day of the accident. On June 30, 2010, he
performed surgery on her left leg, including nailing the left femur, irrigating,
debriding and reducing the left tibial plateau fracture. Following surgery she
was placed into a knee immobilizer and her leg rendered non-weight bearing. She
was discharged when she was comfortable and safe. She was seen two weeks later
for wound care and remained non-weight bearing with an immobilizer. Five weeks
later she began some gentle range of motion exercises for her left knee. Six
weeks post-op her knee immobilizer was removed. He said that the fractures were
healing well. Three months post-operation she continued to have stiffness in
her left knee and could not fully flex. She was referred for physiotherapy for
aggressive range of motion exercises.
[51]
On October 21, 2010, the plaintiff was scheduled for manipulation of her
left knee under anaesthetic to correct the stiffness. This was done and her
range of motion increased. Two months following manipulation her range of
motion was improved to 0-90 degrees and her tibial plateau fracture was well healed.
[52]
Nine months post-operatively on March 16, 2011, she was seen again at
the orthopaedic clinic. Against medical advice she had continued to use
crutches. Dr. Torstensen said that he had previously recommended that she
weight bear without any support. Her range of motion continued to improve and
there was no tenderness at the fracture site. She was instructed to discontinue
the use of her crutches.
[53]
About a year after the accident she was found by Dr. Torstensen to have
some ongoing swelling in her left knee with manageable pain. The incisions and
area of abrasions had healed nicely.
[54]
Fifteen months after surgery Dr. Torstensen reported that Ms. Isbister
was walking and had minimal pain but some discomfort related to the hardware in
her left leg. The hardware was removed from the left tibia on January 12,
2012, without difficulty.
[55]
At a follow-up visit on May 11, 2012, Ms. Isbister was reported by
Dr. Torstensen as doing well and walking without significant pain.
[56]
Ms. Isbister was not seen again by Dr. Torstensen until a visit was
requested by Dr. Conway. That occurred on June 10, 2013, and she reported some
pain in her left knee and hip. She reported having difficulty extending her
left knee fully when she was going up stairs but had no difficulty in level walking.
His examination showed that her surgical incisions were healthy, her knee range
of motion was good and she walked very well. X-rays showed that all fractures
had healed nicely. She was advised that she would always have some discomfort
to the knee as a result of the tibial plateau fracture.
[57]
Following the examination on June 10, 2013, Ms. Isbister was
discharged from the care of Dr. Torstensen.
[58]
Dr. Torstensen opined that the femoral fracture would not result in long
term difficulty for Ms. Isbister. The tibial plateau fracture, that I
understand to be below the knee joint, he described as a life altering injury.
He said it will eventually result in osteoarthritis at some unknown future time
and he said that degenerative changes may very well require a knee replacement
if the osteoarthritis progresses to the point of causing her unremitting pain. He
said that her knee will always be stiff and uncomfortable and will have to be
managed with activity modification and analgestics as required.
[59]
As to suitable work, Dr. Torstensen opined that occupations where she is
standing or walking would be less than ideal. He said that a sedentary
occupation would be of benefit. His opinion was that a sitting job should be
fine for her.
[60]
As of November 23, 2013, Dr. Torstensen considered that Ms. Isbister
had recovered to the maximum degree from her injuries. He also said that it was
very difficult to quantify the degree of disability that she will have for
vocational and avocational pursuits. He said it is unpredictable but would
expect her to have ongoing discomfort and decreasing walking tolerance and some
ongoing pain management requirements.
3.
Dr. M. Gilbart
[61]
Dr. Gilbart, an orthopaedic surgeon, provided a written report assessing
Ms. Isbisters condition on June 23, 2011. I did not find that his
report added appreciably to the findings and opinions of Dr. Torstensen.
4.
Dr. Chasta Bacsu
[62]
Dr. Bacsu testified as an expert in the field of urology. Her
sub-specialty was in the area of female pelvic neurology. She provided an
opinion regarding the effects of the plaintiffs accident on her urological
function. Since early in 2011, the plaintiff complained of feeling urinary
urgency and an inability to empty her bladder. Dr. Bacsu saw Ms. Isbister
on October 22, 2013, and her opinion appears to be largely based on the
earlier findings of other experts together with reports by Ms. Isbister of
her condition.
[63]
At the outset Dr. Bacsu said that there was limited information in her
medical records pertaining to Ms. Isbisters urological function following
the accident. There was no evidence of trauma to her pelvis, lower abdomen or
spine. A renal bladder ultrasound was performed on October 8, 2010, and it
showed a normal bladder and normal kidneys. A cystoscopy and pelvic examination
on July 4, 2011, showed a normal bladder and urethra with no evidence of
infection. Dr. McCracken started the plaintiff on self-catheterization at
that time which was just over a year after the accident.
[64]
A renal and bladder ultrasound on May 2, 2012, did not identify any
abnormalities.
[65]
Dr. Bacsu concluded that because Ms. Isbister did not have any
urinary problems prior to the accident it was probable that her voiding
dysfunction is related to the accident. She opined that her urinary problems
were consistent with a neurogenic bladder which results from damage to the
nerves controlling the bladder function. She also said that the use of
OxyContin and Oxycodone may have contributed to bladder emptying problems.
[66]
Although she said it was likely that Ms. Isbister would have to
continue self-catheterization for her life, Dr. Bacsu opined that it
should have a limited impact on Ms. Isbisters ability to engage in
domestic or recreational activities or employment opportunities.
5.
Dr. Daniel Rapoport
[67]
Dr. Rapoport, also a urologist, was accepted as an expert in that field.
I considered his report in light of my ruling regarding its weight. Dr. Rapoport
was asked for his opinion regarding Ms. Isbisters urological difficulties
and whether they were causally related to the accident.
[68]
Dr. Rapoport did not see Ms. Isbister but assumed the facts set
forth in Dr. Bacsus report of November 28, 2013. His opinion is that
if Ms. Isbisters urological problems resulted from trauma and
neurological injury he would have expected the onset of symptoms and evidence
of voiding problems to immediately follow the traumatic event. He also opined
that there were no findings of neurological impairment or radiographic findings
that would indicate that the problems were secondary to pelvic trauma or
neurological injury. His view was that the problem may be caused by a
combination of factors including chronic pain, medication side effects and
there may be a psychogenic component.
[69]
Dr. Rapoports opinion is that Ms. Isbisters urological problems
are not directly as a result of the trauma of the accident. He said they may be
secondarily a result of chronic pain and medication.
6.
Dr. Daniel D. Vincent
[70]
Dr. Vincent, an interventional anaesthesiologist, testified as an expert
in that field. He prepared the first of two written reports on July 28,
2013. Ms. Isbister was referred to Dr. Vincent on January 24, 2012,
because of her complaint of persistent post-traumatic pain following the
accident. On a scale of 10, she rated her pain 9/10 at its worst and 5/10 at
its best. Dr. Vincent decided to give her a trial nerve block injection at the
lower lumbar spine. At a follow up visit on March 9, 2012, Ms. Isbister
reported that the nerve block treatment had been helpful.
[71]
Dr. Vincent gave Ms. Isbister another nerve block injection on May 14,
2012. On July 26, 2012, she reported a significant positive result for a
four week period. A further injection was given to her by Dr. Vincent on
November 7, 2012, and again on February 6, 2013, when she complained that her
symptoms had returned. She received a further injection on May 8, 2013.
[72]
At the visit on May 8, 2013, Dr. Vincent recommended that she try some
part-time work as a secretary and look for an employer who would understand her
situation. There is no evidence that she followed that advice.
[73]
Among the salient findings in his first report, Dr. Vincent opined that Ms. Isbister
possibly had complex regional pain syndrome. His treatment involved nerve block
injections which he said would enable her to better participate in
physiotherapy, exercise and future employment.
[74]
In his second report dated February 5, 2014, Dr. Vincent confirmed that Ms. Isbisters
diagnosis was compatible with complex regional pain syndrome of the left lower
limb under the Budapest and American Medical Association criteria. He did not
explain why his opinion changed from that of the syndrome being only a
possibility to that of it being consistent with those criteria. He was not able
to say how long the condition might continue. He said it was incorrect to refer
to this as a chronic condition because it can be acute or sub-acute. I take
that to mean that it may resolve over some unknown period of time but Dr.
Vincent could not say when.
[75]
With regard to her suitability for employment, Dr. Vincent suggested
that she consider vocational counselling. There is no evidence that she
attended vocational counselling.
[76]
Dr. Vincent deferred to Dr. Torstensen as to Ms. Isbisters
prognosis. He said that the pain in her right neck and shoulder area should
eventually settle in two or three years depending upon the vocation she chooses.
He suggested that she would do best in a sedentary job with the ability to
alter her posture frequently.
7.
Dr. Alexander Moll
[77]
Dr. Moll is a neurologist and testified as an expert in that field. He
provided a written report on July 19, 2013, and a further report on
January 2, 2014.
[78]
Dr. Molls examination of Ms. Isbister resulted in no findings
indicating injuries to the nervous system at any level in relation to her complaints
of pain in her lower back and left leg. He opined that she did not sustain
injury to her nervous system in association with the pain she experienced at
the time of the accident or currently. He commented that her initial belief
that her leg might have to be amputated was mistaken and suggested that she has
an exaggerated understanding of the nature and extent of the injuries that she
sustained in the accident.
[79]
It is Dr. Molls opinion that Ms. Isbisters description of the
immediate relief from pain following an injection by Dr. Vincent is not
consistent with the pain relief resulting from that type of treatment. He said
that suggests that there may be a psychogenic component to the pain she
describes in her left leg and lower back. He did agree that if a local
anaesthetic was introduced at the time of the injection, the relief could occur
within seconds.
[80]
Dr. Moll also reported that he found no signs of any neurologic
impairment in association with Ms. Isbisters complaint of an intermittent
right shoulder problem.
[81]
Dr. Moll opined that he found no evidence of any neurologic or
neuromuscular impairment or injury that might be associated with impaired
bladder control or function. In his view, Ms. Isbister did not sustain any
injury to the nerve supply of her bladder at any level that might affect
bladder control.
[82]
In his second report on January 2, 2014, Dr. Moll offered comments on
the findings of some other experts.
[83]
With regard to Dr. Vincents findings, Dr. Moll said that he did not see
any signs of neurologic impairment that might be associated with a diagnosis of
chronic regional pain syndrome. This was an incorrect reference to complex
regional pain syndrome which was found by Dr. Vincent. It seems that Dr. Moll
did not find any neurologic basis for Dr. Vincents diagnosis.
[84]
Dr. Moll stated that Dr. Boissevains comment that Ms. Isbisters
pain symptoms might at least partially be affected by stress supported Dr.
Molls conclusion that psychogenic factors likely contribute to the pain in her
left leg. I note however that Dr. Boissevain attributed her psychological
issues to the underlying pain that she experiences. Dr. Moll appears to
emphasize the psychogenic factors contributing to Ms. Isbisters pain
symptoms while Dr. Boissevain emphasizes the significance of Ms. Isbisters
underlying medical issues as being a source of her pain and her psychological
issues.
8.
Dr. Michael Boissevain
[85]
Dr. Boissevain, a clinical psychologist, testified as an expert in
chronic pain. He prepared a written report on October 17, 2013, after meeting
with and testing Ms. Isbister. Many of his views are based on Ms. Isbisters
reporting to him of her condition. He opined that it was her persisting pain
symptoms that interfered with her ability to function but such functional limitations
should be addressed by medical experts.
[86]
Dr. Boissevain expressed the view that the plaintiffs condition would
likely interfere with her ability to maintain normal concentration and
persistence. He said that she would likely have difficulty interacting
effectively with customers in a service or retail setting. He also said that
her driving anxiety would likely preclude her from any job that required
extensive driving.
[87]
Dr. Boissevains latter opinions are belied by Ms. Isbisters
apparent ability to sit through 14 days of trial including two days on the
witness stand without exhibiting any difficulty concentrating or interacting
with counsel and the Court. My behavioural observations were consistent with
Dr. Boissevains as set out in Appendix A to his opinion where he noted
that during his assessment she manifested no pain behaviours and refused a
break that was offered after 90 minutes of interview time. He also
testified that she completed one test that took her one hour and 40 minutes
without a break. I also note that in the video surveillance of Ms. Isbister
there was no indication of her having difficulty with driving, parking, or exiting
and entering her vehicle.
[88]
With regard to her income, at page 18 of Dr. Boissevains report he
says that Ms. Isbister reported her income to be $5,500 per month and she
told him that she declared all of her income including her tips on her income
tax return.
[89]
Although Dr. Boissevain concludes that her symptoms are medically based
and beyond his area of expertise such that if those are treated her
psychological issues would not persist, he nevertheless recommends that she
attend up to six sessions of psychological treatment a year for her lifetime. I
assume he makes that recommendation on the basis that her symptoms will persist
for her lifetime.
9.
Mr. Justesen
[90]
Mr. Justesen, a physiotherapist, testified as to the treatments he has
been providing to Ms. Isbister. Based on recommendations from Dr. Conway
on July 23, 2012, and Dr. Graboski on November 2, 2011, as well as his own
subjective analysis of her needs, he provided manual therapy for her neck and
mid-back thoracic area, left knee and hip, and right shoulder. ICBC paid the
costs of physiotherapy until the Part 7 benefits were exhausted.
Ms. Isbister now owes his clinic about $62,000. The amount owing has been
adjusted each year to include an interest factor on the unpaid amount.
10.
Dr. N.K. Reebye
[91]
Dr. Reebye, a medical doctor and specialist in physical medicine and
rehabilitation or physiatry, testified as an expert in that field. He examined
the plaintiff on April 23, 2013.
[92]
Dr. Reebye refers to the injuries to the plaintiff, including the
fractures of the left leg and soft tissue injuries to her neck, back and left
shoulder.
[93]
With reference to the soft tissue injuries, Dr. Reebye said that no
specific treatment is required but she will benefit from active exercise
including stretching and strengthening activities. He says that it is likely
that her pain in these areas will gradually improve over time as she adjusts to
her condition and continues with active exercise. I accept this evidence as
qualifying Dr. Conways opinion that the plaintiffs soft tissue injuries
were permanent in nature.
[94]
He expressed the view that Ms. Isbisters main barrier to returning
to work is her left knee in which she has lost some range of motion. However,
Dr. Reebye opined that it would be advantageous for Ms. Isbister to
return to some work activity which should be considered as part of her
rehabilitation. While recognizing that Ms. Isbister will not be able to
return to full time work as a waitress, he recommended that she start exploring
other work options and that she need not wait for her symptoms to settle down
before doing so.
[95]
Dr. Reebyes opinion was that Ms. Isbister need not continue with
physiotherapy treatments and she should be encouraged to exercise on her own at
home to obtain the same results. He also said that she does not require
treatments like manipulations to her ribs or other parts of her body and
recommended stretching and strengthening exercises including swimming. He does
acknowledge that she could attend a physiotherapist and massage therapist from
time to time as needed if she experiences pain.
D.
Post-Accident Chronology
[96]
I will summarize chronologically the plaintiffs condition from the time
she returned home after the accident until the date this trial commenced.
1.
The First Two to Three Weeks at Home
[97]
After returning to her home on or about July 8, 2010, various pieces of
equipment were obtained to assist her with everyday living. These included a
hospital bed, a walker, a wheelchair and a bathing bench. Each day for the
first two weeks a nurse would attend her home to change her bandages.
[98]
Mr. Fowler testified that he stopped working as a chef at a
seniors home so that he could care for Ms. Isbister and look after their
house. He would attend to her meals, assist her with laundry, help her transfer
to and from her bed to the wheelchair and give her injections from time to
time.
[99]
During her recovery at home she was prescribed pain medication including
OxyContin and Oxycodone.
[100] Around the
third week of July 2010 a physiotherapist started visiting the plaintiff at her
home. She assisted Ms. Isbister with the movement of her injured leg and
with exercise.
2.
The Summer of 2010
[101] The
medications Ms. Isbister was taking caused a number of side effects. She
suffered from constipation and had to take a laxative. One of the medications
caused her to gain weight about 40 pounds in the eight months following
the accident. The weight gain made it more difficult for her to do
rehabilitation exercises.
[102] Her
functional status was reported by Jennifer Babcock, an occupational therapist
retained by ICBC, on July 21, 2010, and updated on October 12, 2010,
December 23, 2010, March 29, 2011, July 4, 2011, September 27,
2011, December 19, 2011, April 3, 2012 and August 23, 2012. I
will comment further on her functional capacity later in these reasons.
3.
The Fall of 2010
[103] By the
fall of 2010, although Ms. Isbister used a walker in her home, she could go
out in a wheelchair to visit a physiotherapist and her doctor. She would be
transported by Pacific Companion, and Mr. Fowler would assist by
transferring her wheelchair to the lift into their van. She said that she
relied on Pacific Companion for her transportation until the summer of 2011.
[104] There is
some inconsistency in her evidence regarding her condition at this time. She
testified that she and Mr. Fowler rented an SUV and went to Tofino in
September 2010 where he went charter fishing. She also said that she was able
to walk on the beach while they were there. She testified that they went to a
Canucks game in Vancouver where she sat in the wheelchair section. She said
that they travelled there in their car.
[105] She
suffered from poor sleep and nightmares and was treated by Dr. Corney, a
psychologist, until December 2011.
4.
November 2010
[106] Ms. Isbister
required a second surgery involving the debridement of the area on her left leg
that had been injured and suffered necrosis. Following this surgery her leg
became swollen and she developed a fever. She had to attend an infectious
disease clinic daily for a period of 10 days.
5.
January 2011
[107] The
hardware was removed from her leg; however, Ms. Isbister continued to
receive antibiotic therapy for an infection in her leg that she had started in
December 2010. She continued to use a wheelchair and was going to a
physiotherapist three times a week as well as a massage therapist. She also
began seeing an occupational therapist once a month. She remained on medication
including OxyContin and Oxycodone.
[108] A nurse
was still seeing her once a day at home and a homemaker visited three times a
week. The homemaker cleaned dishes, vacuumed the house and did the laundry.
[109] Mr. Fowler
testified that he looked after the laundry and cleaning the house during this
time but it is not clear whether this was necessary after Ms. Isbister
hired a homemaker. He also said that he helped her to the toilet.
[110] Ms. Isbister
first began experiencing urinary problems at this time and found that she had
to urinate frequently.
6.
February 2011
[111] Ms. Isbister
could still not bear weight on her left leg but started to transition from the
walker and wheelchair to crutches.
7.
Spring of 2011
[112] The
plaintiffs left leg was still swollen and she continued to experience some
back pain. She continued to experience issues with her bladder. She remained on
the same prescription medications, had physiotherapy three times a week and
massage therapy twice a week.
[113] She worked
with a kinesiologist three times a week and began riding a stationary bicycle.
[114] By the end
of March 2011 Ms. Isbister continued to use the services of a homemaker
three times a week and Pacific Companion for transport to and from appointments.
She continued her transition from using a walker to crutches. Dr. Torstensen
recommended that she do more walking at this time.
[115] By the end
of April 2011, or 10 months after the accident, Mr. Fowler testified
that he no longer had to care for Ms. Isbister. He was not able to say how
many hours he worked to help Ms. Isbister. Stephany Isbister also assisted
her mother during the 10-month period that she required a wheelchair. She
testified that she was at the residence most days because she worked night
shifts. She would help her mother with baths, housework, cooking and with her
catheters.
8.
Summer of 2011
[116] By this
time the plaintiff was able to bear weight on her left leg. She was seen by a
urologist and was started on self-catheterization and medication for her
bladder. She used reusable catheters which had to be sterilized each time
before they were used. Mr. Fowler did the required sterilization. As a
result of using the catheters she experienced a temporary yeast infection.
[117] Ms. Isbister
was now using a cane and did not require a wheelchair. Dr. Torstensen
advised her to walk without using any aids. Mr. Fowler drove her to and
from her appointments for physiotherapy and massage. She no longer required
transferring. She could look after her own hygiene. She no longer required a
nurse at her house. A homemaker still continued to work at her home three times
a week.
[118] She
testified that she still found it difficult to go from a sitting to a standing
position.
[119] She also testified
that by this time she still was not having much of a social life because she was
not comfortable around people.
9.
Fall of 2011
[120] By this
time Ms. Isbister said that she was able to do errands such as banking and
grocery shopping but needed to use a cane. She continued to use physio and
massage therapy. She continued her use of catheters but switched from reusable
to disposable ones. She said that she continued to experience pain in her leg
and lower back and some headaches. The headaches resolved when it was
determined that they were related to an eyesight issue.
10.
November 2011
[121] Ms. Isbister
began supervised exercise and said that improved her walking.
[122] She started
reducing her reliance on OxyContin and started using Lucinta for pain control.
She continued attending physio and massage therapy.
11.
Winter of 2011/2012
[123] Ms. Isbister
reported to Dr. Torstensen that she was bothered by the hardware that had been
inserted in the proximal tibial area. She elected to have the hardware removed
and that was done on January 12, 2012. Dr. Torstensen reported that
all hardware was removed without difficulty. Two weeks later, Dr. Torstensen
reported that her wounds were healthy. By February 23, 2012, Dr. Torstensen
said that a small area of superficial wound necrosis continued to heal and
settle nicely and gradually resolved.
[124] Ms. Isbister
attended a pain specialist, Dr. Vincent, because she was still experiencing
pain in her leg. He started giving her a nerve block injection and she
continues to have an injection once every three months. The last injection was
in October 2013. She testified that the injections reduced her pain and
symptoms for about six weeks. At eight weeks she said the level of pain would
return to a level of eight on a scale of one to 10. After 12 weeks she
described her pain as excruciating until the next injection.
[125] She was
able to travel to a Canucks game in Vancouver and sit without a wheelchair but
she says that she has difficulty with all of the stairs.
12.
Spring of 2012
[126] She
attended the Royal Jubilee pain clinic three times a week as well as physio and
message therapy and began adapting to the pain in her leg although she continued
to receive nerve block injections.
[127] Dr.
Torstensen reported that by May 11, 2012, Ms. Isbister was doing well
and walking without significant pain. He said her wounds were healthy and she
no longer had significant discomfort to the tibia.
[128] Her
hospital bed was replaced by a larger lift bed and she used a lift system on
the stairs in her house. She also used a lift chair in the living room to
assist her in going from a sitting to a standing position.
[129] She
testified that her sleeping arrangements had negatively affected her sex life
but that was improving.
[130] She was
now able to drive their automobile and no longer needed a wheelchair. She no
longer experienced anxiety in relation to the scene of the accident. Mr. Fowlers
evidence was somewhat inconsistent as he testified that he continues to this
day to drive her to her physiotherapy appointments.
[131] By May
2012, Ms. Isbister had used the maximum amount available of $150,000 for
Part 7 benefits.
[132] She
explained that Mr. Fowler did not go back to the workforce because he
could not make a lot of money. Instead, he began trading in coins and turned
that into a small business.
13.
Summer of 2012
[133] Although Ms. Isbister
testified that she still experienced pain in her leg she did not need
assistance walking. She said that she walked with a serious limp. She was able
to do such things as shopping, food preparation and could load the dishwasher. Nevertheless,
she continued using the homemaker and attended physio and massage therapy each
week.
[134] She
continued to use a catheter and received nerve block injections.
14.
Fall of 2012
[135] By the
fall of 2012, Ms. Isbister was no longer attending a kinesiologist. She
said that she still limped badly. She could go up and down stairs but had to
pull her left leg up or down each stair as needed. She was able to attend a
Canucks hockey game although she was slow on the stairs in the Arena. She
continued to use medication for her symptoms.
15.
Winter of 2013
[136] By this
time Ms. Isbister was doing strengthening and stretching exercises every
day. She continued to attend for physio and massage treatments each week. She
still used the stair lift in the house but did not need the other lift
assisting equipment. She still found stairs in public to be difficult.
16.
Summer of 2013
[137] Ms. Isbister
reduced her rehabilitation program to one physiotherapy session and one massage
every two weeks but ended up increasing this after about six weeks. She
continued self-catheterization and remained on some medications. She was able
to assist with cleaning the dishes, food preparation and the laundry. A
homemaker continued to attend her home twice a week. Ms. Isbister found some
housekeeping chores too difficult and painful. She returned to have physio and
massage treatments twice a week and did exercises every day at home. She walked
their two dogs but only for about 15 minutes a day.
[138] In July
2013, Ms. Isbister travelled to Las Vegas with her daughter and Mr. Fowler
to celebrate her daughters 21st birthday. She said that she limited her
activity while there. She said that the trip cost about $2,000.
17.
Plaintiffs Current Condition
[139] Ms. Isbister
testified that she is currently not able to run, go hiking, or take long walks.
She said she cannot go a gym because she cannot use any of the equipment. She
says she cannot go to concerts because she cannot stand or sit for long periods
of time. She does not go to a Canucks game because of the stairs in the arena.
[140] She
testified that she can no longer enjoy camping because she cannot get up off
the ground by herself. I note that at her examination for discovery on December 20,
2013, Ms. Isbister said that she could get up from the ground if she fell.
She explained her answer by saying that she was not asked if she needed
assistance to get up from the ground. She also explained that she needs to a
use a catheter in a sterile environment and camping would be unsuitable for
that. She continues to use a catheter and chooses the disposable catheters
because they are less likely to cause infection than the reusable variety.
[141] Stephany
testified that her mother can load the dishwasher and the clothes washer and
dryer, bath and dress herself, do her hair and put on make-up. She and her
mother go shopping together in Bellingham as they used to do before the
accident.
[142] Ms.
Isbister has an electric scooter but says that there are no sidewalks in her
neighbourhood where it can be used safely. It is not apparent from the evidence
that she currently requires the scooter for transportation.
[143] Her
partner testified that their relationship is not as intimate as it was before
the accident and they often sleep in separate beds. I note, however, that Ms. Isbister
reported to Dr. Bacsu on October 22, 2013, that she is sexually active
without any difficulty.
[144] She now
has physiotherapy and a massage once each week. She has an outstanding bill
from Parkway Physiotherapy for $62,279 for physio, massage and kinesiology
services that were not covered by Part 7.
[145] The
plaintiff last had a nerve block injection in October 2013. The first day of
this trial was February 25, 2014. My observation of her in the courtroom
was that she did not appear to have any difficulty sitting in the witness box
or in the gallery throughout the 14 days of the trial. She did not exhibit
any external signs of pain or discomfort nor did her counsel indicate to the
Court that she was in any pain or discomfort during the trial.
[146] As to her
future employment, Ms. Isbister said she has considered that if she cannot
be a server again she might be employable in management. She has not sought any
type of employment since the accident. She says that Drs. Vincent and Conway
have told her that she will not be able to return to her servers job. She has
not considered going back to school for job training because she says she
cannot sit for long periods of time. She considers that she would be unreliable
because some days she has difficulty moving and continues to be in pain. She
says that Mr. Fowler works at home trading coins and paper money earning
about $10,000 per year.
[147] As to
doing computer work out of her home, Ms. Isbister said that she cannot sit
at a computer for long periods of time. She also says that she does not have
the money to use and risk in gold trading.
[148] Video
surveillance was used to photograph Ms. Isbisters activities over a
period of four days including January 24, 25, 27 and 28, 2014. She is
shown shopping in a drug store, filling her vehicle with fuel, shopping inside
a grocery store, opening and closing the rear hatch of her vehicle without
difficulty, and walking her dogs. While she says she walked with a limp, she does
not appear to be limping in much of the video although in some she appeared to
have a subtle limp. She appeared to get in and out of her vehicle without
difficulty and put her weight on her left leg as she got out of her vehicle. In
the video of her shopping at a mall on January 28, she agrees that she was
walking without a limp. I also noted that she did not exhibit any signs of
being in pain notwithstanding the passage of about 12 weeks since her last
nerve block injection.
[149] To assist
her with living expenses since the accident, Ms. Isbister has received
loans totalling about $170,000, with annual interest of 15%, from her counsel,
a company of his or from his law firm.
E.
Plaintiffs Functional Capacity
[150] Ms. Mair
Edwards, an occupational therapist and rehabilitation consultant, testified as
to the functional capacity of Ms. Isbister. She also addressed the future
care needs of the plaintiff.
[151] Ms.
Edwards reviewed the various medical reports regarding the plaintiff and
carried out an assessment of Ms. Isbister at her home on October 30,
2013.
[152] By way of
examples of the assessment done by Ms. Edwards, she observed Ms. Isbister
to walk with an uneven gait, bearing most of her weight on her right leg. She
assessed the range of motion of the plaintiffs extremities and found the knee
to be limited to 90 degrees of flexion and only five degrees of extension.
As a result, she said that Ms. Isbister could not put her full weight on
her left leg. This is at variance with Dr. Torstensens findings when he saw Ms. Isbister
on June 10, 2013. At that time he said the range of motion of Ms. Isbisters
knee was good at 0‑115 degrees, and in level walking he said that
she had no difficulty and observed her to walk very well. Dr. Torstensens
opinion is supported by the plaintiffs action during the surveillance video.
[153] Ms.
Edwards also estimated the cost of care that was provided by Mr. Fowler,
on the basis of its cost if it had been provided by a trained care giver. This
assessment was based on what Mr. Fowler told her that he had done for Ms. Isbister.
[154] Ms. Edwards
detailed recommendations are found in her report at Tab 9 of Exhibit 1A.
[155] I note
that Ms. Edwards did not do a vocational assessment or functional capacity
evaluation of Ms. Isbister.
[156] Jennifer
Babcock, an occupational therapist, testified as to her observations of the
plaintiff, and was not tendered as an expert. She observed Ms. Isbister at
her home on two occasions in July 2010, shortly after the accident.
[157] Ms.
Babcock interviewed the plaintiff on July 7 and 13 in 2010 and provided
her views to ICBC on July 21, 2010. Her report is consistent with the
plaintiffs description of her condition at that time. She reported on the
progress of the plaintiff at various stages culminating in a report on
August 23, 2012. Ms. Babcocks reports were generally consistent with
my description of the plaintiffs condition chronologically after the accident.
In her final report, Ms. Babcock said that the plaintiff was still unable
to return to her pre-accident employment and may require vocation counselling
and retraining. She did not suggest any particular type of employment as being
suitable for the plaintiff.
III.
Analysis
A.
Non-Pecuniary Damages
[158]
The purpose of non-pecuniary damages was described in Smusz v. Wolfe
Chevrolet Ltd., 2010 BCSC 82, by Russell J:
[85] The purpose of non-pecuniary damage awards is to
compensate the plaintiff for pain, suffering, loss of enjoyment of life and
loss of amenities: Jackson v. Lai, 2007 BCSC 1023 at para. 134; see
also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, 83
D.L.R. (3d) 452; and Kuskis v. Tin, 2008 BCSC 862 [Kuskis]. While
each award must be made with reference to the particular circumstances and
facts of the case, other cases may serve as a guide to assist the court in
arriving at an award that is just and fair to both parties: Kuskis, at
para. 136.
[86] There are a number of factors that courts must take into
account when assessing this type of claim. Madam Justice Kirkpatrick, writing
for the majority, in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th)
19, outlines the factors to consider, at para. 46:
[46] The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary
damages includes:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering; and
(f) loss or impairment of life;
I would add the following factors, although they may
arguably be subsumed in the above list:
(g) impairment of family, marital and social relationships;
(h) impairment of physical and mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton, Liang and
Zheng, 2005 BCCA 54).
[159] There is
no question that the plaintiff suffered significant injuries to her left leg in
the accident. She also suffered some soft tissue injuries to her right neck and
shoulder, as well as other areas of her body as described above.
[160] With
regard to the injuries to her left leg, Dr. Torstensen said that on June 10,
2013, his examination showed that her surgical incisions were healthy, her knee
range of motion was good and she walked very well. X-rays showed that all
fractures had healed nicely. He did advise that she would always have some
discomfort in the knee as a result of the tibial plateau fracture.
[161] According
to Dr. Vincent, as of July 29, 2013, Ms. Isbisters shoulder symptoms
should settle in two or three years.
[162] There is
some uncertainty regarding the plaintiffs claim that she experiences complex
regional pain syndrome. Dr. Vincent is of the view that the plaintiff suffers
from complex regional pain syndrome in her left leg. Dr. Torstensen did
not express that opinion. Dr. Molls opinion was that there was no evidence of
neurological injury to support a diagnosis of complex regional pain syndrome. Dr.
Vincent does not say that this condition is permanent. He said that the
injection therapy that the plaintiff is undergoing has been successful in
shortening the recovery period of other patients. I have concluded that this
condition will resolve in time.
[163] With
regard to Ms. Isbisters urological issues, which require her to use
catheters, Dr. Bacsu reported that there was no evidence of trauma to her
pelvis, lower abdomen or spine. A renal bladder ultrasound was performed on
October 8, 2010, and it showed a normal bladder and normal kidneys. A
cystoscopy and pelvic examination on July 4, 2011, showed a normal bladder and
urethra with no evidence of infection. Dr. McCracken started the plaintiff on
self-catheterization at that time which was just over a year after the
accident.
[164] Dr. Bacsu
opined that the plaintiffs urinary problems were consistent with a neurogenic
bladder which results from damage to the nerves controlling the bladder
function. However, Dr. Bacsu agreed that an individual can develop bladder
problems for reasons that are not connected to trauma or for unknown reasons.
[165] Dr. Moll
reported that he found no evidence of any neurologic or neuromuscular
impairment or injury that might be associated with impaired bladder control or
function. In his opinion, Ms. Isbister did not sustain any injury to the
nerve supply of her bladder at any level that might affect bladder control.
[166] Dr.
Rapoport said that there were no findings of neurological impairment or
radiographic findings that would indicate that the problems were secondary to
pelvic trauma or neurological injury.
[167] Based on
the conclusions of the experts and the long period of time that passed after
the accident before Ms. Isbister was required to use catheters, it is my
view that the plaintiff has not established on a balance of probabilities that
her urinary difficulties are causally related to the accident. Applying the
but for test it is my view that a substantial connection between the injuries
to the plaintiff and her urinary issues has not been established. Her urinary
issues may very well be due to factors unconnected to the defendant and not
the fault of anyone. (Resurfice Corp. v. Hanke, 2007 SCC 7, referring
to Snell v. Farrell at p. 327).
[168] At the
present time it seems that the plaintiffs complaints of ongoing pain and
disability are largely subjective. While there is no doubt that she experienced
severe pain for a period of time following the accident, there is some evidence
indicating that currently she does not experience as much pain as she has
described. She testified that the injections she received from Dr. Vincent four
times a year were helpful in reducing her pain. She said that the benefits
would last about six weeks and then started to decline. After eight weeks she
described her pain as level 8 out of 10, and after 12 weeks she said the
pain was excruciating. Her last injection before the trial was in October 2013.
Even if she received that injection on October 31st, more than 12 weeks
had expired before the start of the trial, and she showed no signs of
discomfort or pain throughout the trial and particularly during the first four
days that she spent in the witness stand. At the time of the surveillance videos
almost 12 weeks had passed since her last injection and there was no
indication that she was experiencing any pain. If she was, it did not appear to
affect her while walking, driving and shopping for groceries.
[169] Dr.
Boissevain interviewed the plaintiff on October 1, 2013, during which the
plaintiff sat for two hours and 50 minutes and declined to take a break
after 90 minutes. After a 30 minute lunch break she sat for 1½ hours
completing a form. He did not observe any pain behaviours by her. It may be presumed
that this occurred near the end of the three month period after her prior
injection by Dr. Vincent.
[170] While since
the accident the plaintiff has suffered from episodes of depressed mood,
experienced nightmares and some anxiety, I accept Dr. Boissevains opinion that
her psychological symptoms do not constitute a source of functional
interference. As her physical injuries resolve and her pain symptoms lessen I
accept that there will be further improvement in her mood, general outlook and
level of functioning.
[171] I have
considered the authorities referred to by both parties regarding the quantum of
non-pecuniary damages. The cases relied upon by the plaintiff generally involve
more serious injuries than those sustained by her or the amount was agreed upon
by the parties.
[172] In Ashe
v. Werstiuk, 2003 BCSC 184, the nature of the injuries and effect on the
plaintiffs life was quite similar to those in the case at bar. Allowing for
inflation the award for non-pecuniary damages in that case today would have
been about $100,000.
[173] I have
concluded that non-pecuniary damages should be set at $100,000.
B.
Loss of Past Income
[174] The plaintiff seeks damages of $228,500 for her past income loss.
[175] As stated succinctly in Pilfold v. Jawal, 2014 BCSC 719 at para. 27:
[27] A plaintiff is entitled to
be compensated for the loss of the value of the work he would have performed
but for the injuries sustained in the accident. In Rowe v. Bobell Express
Ltd., 2005 BCCA 141, the Court describes this as a claim for loss of
earning capacity. A trial court should apply contingencies that affect the
loss: Hussack v. Chilliwack School District No. 33, 2011 BCCA 258, at
para. 92; Riding-Brown v. Jenkins, 2014 BCSC 382, at para. 38.
[176] I accept
that the plaintiff has been unable to return to her employment as a server
since the accident.
[177] Ms. Isbister
estimates that her earnings as a server in a pub for each of the three years
prior to the accident were $21,434 in salary and $52,000 in tips. She also
estimates that her annual income from gold trading was $9,532. On this basis,
the plaintiff seeks damages for lost past income of $228,500.
[178] In my view,
three aspects of the evidence have a particular bearing on this part of the
plaintiffs claim.
[179] Firstly,
the Waterwheel Pub, where the plaintiff was employed, closed in July 2011. That
event would have left the plaintiff unemployed. The plaintiff says that she
never had difficulty finding employment, however, she was unemployed in 2004
for about a month after leaving her employment at a golf club during which time
she received EI benefits of $547. In 2005 she received EI benefits of $3,345, so
it appears that she was unemployed for about five months. In my view, the
plaintiffs claim should be discounted by one month after which time I accept
that she would have found similar employment.
[180] Secondly,
although the plaintiff was earning $10.50 an hour at the Waterwheel Pub, there
is no evidence to establish what her earnings would have been at a new job.
Nevertheless, in respect of her claim for lost past income, I am prepared to
accept that the plaintiff would have found employment that would have paid her
the same base salary as she earned at the Waterwheel Pub.
[181] Thirdly,
the evidence in respect of the plaintiffs income from tips puts her estimate
of $1,000 per week in doubt.
[182] Of her
claimed income from tips, in her income tax returns the plaintiff only declared
$1,800 in 2005, $2,100 in 2008 and $2,650 in 2009. While the failure to report
income for tax purposes does not preclude an award based on actual income, the
plaintiff has the burden of leading evidence to establish her income loss. In Iannone
v. Hoogenraad, [1992] B.C.J.No. 682, the Court of Appeal said that [t]his
will be a difficult burden to discharge where there is no corroborating
evidence, such as income tax returns, but it is not an impossible burden to
discharge.
[183] In my view,
much of the plaintiffs evidence regarding her tip income was exaggerated. I
also have some doubts about the plaintiffs credibility. I will give some
examples.
[184] During her
examination for discovery the plaintiff claimed to have worked 80 to 85 hours
each week while working at both the Checkered Flag restaurant and the
Waterwheel Pub. At trial she testified that for two years, while working at
both jobs, she worked 50 hours a week.
[185] At her
discovery, the plaintiff claimed to be working 45 to 50 hours a week at
the Waterwheel. At trial she said that she was working there 37 to 42 hours
each week. It appears that she changed her evidence at trial because she knew
that her T4 earnings did not support her evidence at discovery. Nevertheless
she stayed with her position that she earned $1,000 a week in tips.
[186] At her
discovery, the plaintiff said that it was her practice to keep about $300 a
week from her tips and deposit about $700 a week in her joint bank account with
her husband. At trial she said the opposite. While she said she was mistaken at
her discovery, it appears more likely that she changed her evidence because the
bank records, which were not produced until after the discovery, showed that
she did not deposit $700 each week.
[187] I cannot
accept her evidence that from 1993 until 2004 she did not know that her
earnings from tips were reportable for income tax purposes. As a result of
publicity by the Canada Revenue Authority and a number of prosecutions that
have been publicized by the press, it has been well known since before 1993, at
least in the restaurant community, that tips are reportable income. The
plaintiff has taken a legal secretarial course and an accounting program. She
also prepared her own tax returns for a number of years. In my view, her
failure to report her tip income over more than 10 years was simply to
enhance the income that she could use to benefit her and her family and not due
to ignorance of the law. Even after she says that she knew tips were reportable
as income she admitted to participating with other employees in reporting only
a small portion of their tips. In 2006 when she was working at both the
Checkered Flag and the Waterwheel she prepared her own tax return. She has
asserted that that year she earned $1,250 each week in tips. Nevertheless, for
2006 she reported no income from tips.
[188] After
hiring Donna Cowen to prepare her tax return in 2007, the plaintiff said that
she told Ms. Cowen that she earned $1,000 per week that year, as well as 2008
and 2009. Ms. Cowen denied that the plaintiff gave her that information. I
accept the evidence of Ms. Cowen and find that the plaintiff was attempting to
explain the non-reporting of her tips by passing the blame on to Ms. Cowen.
[189] Ms. Isbister
has been audited for her failure to report her tip income prior to 2007. She
testified that she was paying $500 a month towards her tax arrears of $12,000. Her
banking records do not show any cheque payments of $500 in 2010, so it appears
she was not making any such payments that year.
[190] It is also
apparent from Dr. Boissevains report that she told him on October 1, 2013,
that she had reported all of her income, including tips, in her tax returns.
[191] At her
examination for discovery the plaintiff said that she earned $1,000 per week in
tips. In the trial she testified that she earned $1,250 per week from both jobs
while working 52 weeks each year.
[192] More
significantly, her employers records do not support Ms. Isbisters
testimony that her tip income in 2007, 2008, 2009 and one half of 2010 was
$1,000 a week or $52,000 per year.
[193] Ms. Isbisters
tips were received either from cash, debit, or credit transactions.
[194] Exhibit 10
is a summary of the sales in cash as a percentage of all sales at the
Waterwheel. Average cash sales amounted to 50% of all sales.
[195] Exhibit 9
is a summary of debit and credit card sales of Ms. Isbister at the Waterwheel
from 2007 to 2010. On average no tips were recorded on about $120 per day of
sales. I accept that, for various reasons, some customers simply do not leave a
tip.
[196] Ms. Zaharia
testified that servers were tipped about 10% on average but a good server might
receive 15% to 20%. Unlike the plaintiff, she did not testify that customers
would leave a larger tip on cash sales. I do not accept that tips would be greater
on cash sales. I do accept that an average rate of tips on both should be about
15%. The defendant uses that rate in calculating the plaintiffs income loss.
[197] There
should be some discount on the basis that the plaintiff would not keep all of
her tips. Her tips would be shared with other staff. I accept that a 2%
reduction would be reasonable, leaving the plaintiff with tips of 13%.
[198] It is
difficult to ascertain from the records how many days each month the plaintiff
worked. Some of the records in Exhibit 9 appear to be incomplete, but I
accept the defendants calculation that these records support the conclusion
that the plaintiff worked an average of 18 days each month before the
accident.
[199] This is
difficult to reconcile with the plaintiffs evidence. Based on the records
there are only four months where she worked 22 days which is consistent
with working five days a week for 52 weeks a year. At the same time, Mr. Fowler
testified that he and the plaintiff took eight to 10 trips each year, lasting
from a few days up to three weeks. Thus, the plaintiff would have missed some
days of work during eight to 10 weeks of each year. Although the plaintiff
said she made up shifts for her time off, which would have meant working more
than 22 days in some months, that is not evident from the records.
[200] I have
concluded that a reasonable average working month for the plaintiff would be 18 days
or 216 days a year.
[201] Using the
records and the assumptions made above, I find the plaintiffs average daily
tip income prior to the accident was $100 per day. On the basis that she worked
216 days a year, her annual gross income from tips would have been $21,384,
which I would round up to $21,400.
[202] The
plaintiff and her husband gave extensive evidence about how much they spent in
cash before the accident. The inference I am asked to draw is that she must have
received the tip earnings that she alleges to allow for that kind of spending. Evidence
of their cash expenditures alone does not satisfy me that her estimate of tip
earnings was accurate or even truthful. It appears that their cash expenditures
would have been possible based on the net income of both of them before the
accident. Her unreported tip income in the range of $19,000 to $21,400 was, of
course tax-free to the plaintiff. While it is possible to determine an
individuals income from a net worth and expenditure standpoint, that would
require a detailed analysis by a qualified accountant before it could be
considered reliable. Such an analysis was not provided to the Court.
[203] The
plaintiff testified that before the accident occurred she had planned to change
her shifts so that she would have more time with her husband who worked from
Monday to Friday. She said she was going to stop working on weekends. As a
result her earnings would have declined. I accept the defendants estimate that
a 10% decline in her tip earnings would have occurred from June 29,
2010 until June 30, 2011, resulting in tip earnings of $19,260 and total
earnings of $40,694 in this period.
[204] For the
period July 1, 2011 to February 24, 2014, I would allow for some contingencies
in relation to the plaintiffs ability to earn income.
[205] I accept
the defendants argument that Ms. Isbister would have been unemployed for
some period of time after the closure of the Waterwheel and there would have
been a period of reduced earnings after she started new employment. I find the
15% contingency estimated by the defendant to be reasonable. This would result
in gross income for this period of $96,376. As indicated by the defendant this
recognizes a reduction of about 4.75 months of income as a result of a
layoff in July 2011 and reduced earnings while rebuilding her hours and
relationships with customers with a new employer.
[206] The
plaintiffs claim for lost past income from gold trading of $9,532 annually is
questionable. A chartered account, Ms. Patti Daum, reported that in the
first six months of 2010 the plaintiff had only one sale of gold and made no
purchases. The only explanation offered for the lack of activity in that
business was because the price of gold was very high. In cross-examination the
plaintiff acknowledged that because of the high price of gold she would not
have been able to invest in gold after the accident. I have concluded that the
plaintiff did not return to gold trading (which involved sedentary work at her
computer) because of the price of gold, and not because of the injuries that
she suffered in the accident. I make no award in respect of lost income from
gold trading.
[207] Accordingly,
I find the plaintiffs past lost income, before allowing for income tax, to be
$134,074,
C.
Loss of Future Income Earning Capacity
[208] The
plaintiff claims $1,461,260 as damages for her loss of future income earning
capacity. Her position is that she is unemployable for the rest of her working
life.
[209]
The basic principles to be applied in assessing
damages for the loss of future earning capacity were summarized by the Court of
Appeal in Rosvold v. Dunlop, 2001 BCCA 1:
[9] Because damage awards are made as lump sums, an award for
loss of future earning capacity must deal to some extent with the unknowable.
The standard of proof to be applied when evaluating hypothetical events that
may affect an award is simple probability, not the balance of probabilities: Athey
v. Leonati, [1996] 3 S.C.R. 458. Possibilities and probabilities,
chances, opportunities, and risks must all be considered, so long as they are a
real and substantial possibility and not mere speculation. These possibilities
are to be given weight according to the percentage chance they would have
happened or will happen.
[11] The task of the court is to
assess damages, not to calculate them according to some mathematical formula: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248
(C.A.). Once impairment of a plaintiff’s earning capacity as a capital asset
has been established, that impairment must be valued. The valuation may involve
a comparison of the likely future of the plaintiff if the accident had not
happened with the plaintiff’s likely future after the accident has happened. As
a starting point, a trial judge may determine the present value of the
difference between the amounts earned under those two scenarios. But if this is
done, it is not to be the end of the inquiry: Ryder (Guardian ad litem
of) v. Jubbal, [1995] B.C.J. No. 644 (C.A.) (Q.L.); Parypa v.
Wickware, supra. The overall fairness and reasonableness of the
award must be considered taking into account all the evidence.
[210]
In Perren v. Lalari, 2010 BCCA 140,
Garson J.A. for the court, wrote 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.
[211] In my
view, in this case it is appropriate to use the capital asset approach because
the plaintiffs loss is not easily measurable. The plaintiff has not returned
to any employment since the accident although the evidence satisfies me that
she could undertake work of a sedentary nature with an employer who is somewhat
flexible. It is clear that she cannot undertake work that is physically
demanding but she has not had a vocational assessment as recommended by Drs.
Torstensen and Boissevain, so there are no reports to assist the Court in
determining what employment options are available to her. Dr. Reebyes opinion
is that she could return to work as part of her rehabilitation and need not
wait until all her symptoms settle down. The plaintiff has not made any
inquiries about employment that might be suitable for her nor has she taken any
courses that might have assisted her in finding suitable employment.
[212] I accept
that the plaintiffs earning capacity, as a capital asset, has been impaired by
her injuries and that impairment will lead to a real possibility of pecuniary
loss. It is then necessary to value that impairment.
[213] The medical
experts for the plaintiff are all of the view that she has residual capacity to
work. They are of the view that she could work at a sedentary job.
[214] If the
accident had not happened it is reasonable to expect that the plaintiff would
have been employed as a server in a restaurant or pub for 40 hours a week.
Consistent with my findings regarding her estimated tip income, I accept that
she would have continued to earn income as a server of $42,834 annually.
[215] Although
the economic consultant, Douglas Hildebrand, expresses the view that the
average retirement age of a woman is 62 years of age, I am prepared to
accept that the plaintiff could have continued working until age 65. However, I
do prefer Mr. Hildebrands multipliers over those suggested by Dr. Geoffrey
Young. I accept Mr. Hildebrands opinion that Dr. Young ignored the possibility
of part-time work by Ms. Isbister or voluntary non-employment prior to
retirement. I also accept that in assuming that the plaintiff would retire at
age 67, his conclusion exceeded the average retirement age of Canadian females,
which is 62.3.
[216] Using the
multipliers in Mr. Hildebrands report, the present value of Ms. Isbisters
earning capacity as a server from the date of trial until age 65 is
$555,985. I note, as indicated by the defendant, that figure does not take into
account all of the contingencies regarding the plaintiffs ability to earn
income in the future.
[217] While
there is an element of speculation involved in predicting the likely future of
the plaintiff, I would expect her to find a sedentary job that might include an
office job, telephone communications, computer work, restaurant or hotel work
in the management area. The plaintiff appeared, both in the video surveillance
and in the courtroom, to be more functional than she would have the Court
believe. Without more evidence, I am prepared to accept that she would find
employment at least for the same salary that she was earning at the Waterwheel
Pub, $10.50 an hour, or $21,434 per year.
[218] Using the
multipliers of Mr. Hildebrand and assuming she will continue to work until age 65,
the present value of her future capacity to earn income is $276,670.
[219] The
present value of the difference between her likely future income if the
accident had not happened and her likely future income after the accident is
$279,315. As the cases note, this determination is not based on a mathematical
calculation and involves an assessment. Taking into account the overall
fairness and reasonableness of the award I have determined that damages of $300,000
are appropriate for the plaintiffs loss of capacity to earn income in the
future, using the capital asset approach.
D.
Cost of Future Care
[220]
The plaintiff seeks damages of $1,138,458 for
the cost of her future care.
[221]
The principles regarding damages for the cost of future care were
reviewed by the Court of Appeal in OConnell v. Yung, 2012
BCCA 57:
[55] The law is settled as to the appropriate approach to be
taken in assessing future care costs. In Krangle (Guardian ad litem of) v.
Brisco, 2002 SCC 9 at paras. 2122, [2002] 1 S.C.R. 205, referred to by the
trial judge, the Court articulated the test:
21 Damages for cost of future care are a matter of
prediction. No one knows the future. Yet the rule that damages must be assessed
once and for all at the time of trial (subject to modification on appeal)
requires courts to peer into the future and fix the damages for future care as
best they can. In doing so, courts rely on the evidence as to what care is
likely to be in the injured persons best interest. Then they calculate the
present cost of providing that care and may make an adjustment for the
contingency that the future may differ from what the evidence at trial
indicates.
22 The resulting award may be said to reflect the
reasonable or normal expectations of what the injured person will require. Jane
Stapleton, The Normal Expectancies Measure in Tort Damages (1997), 113 L.Q.R.
257, thus suggests, at pp. 257-58, that the tort measure of compensatory damages
may be described as the normal expectancies measure, a term which more
clearly describes the aim of awards of compensatory damages in tort: namely, to
re-position the plaintiff to the destination he would normally have reached …
had it not been for the tort. The measure is objective, based on the
evidence. This method produces a result fair to both the claimant and the
defendant. The claimant receives damages for future losses, as best they can be
ascertained. The defendant is required to compensate for those losses. To award
less than what may reasonably be expected to be required is to give the
plaintiff too little and unfairly advantage the defendant. To award more is to
give the plaintiff a windfall and require the defendant to pay more than is
fair.
[Emphasis added.]
[56] Further, as Athey v.
Leonati, [1996] 3 S.C.R. 458 at para. 27, makes clear, [a] future or
hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation.
[222]
Referring to OConnell, N. Smith J.
elaborated on these principles in Scoates v. Dermott, 2012 BCSC 485 at
para. 207:
[207] The court in OConnell stressed that an award
for cost of future care must be distinguished from an award for loss of
capacity in that it is an award for costs that may reasonably be expected to be
required. For example, the fact that a particular care item is needed will not
support an award where it is clear the plaintiff will not actually incur the
expense or accept the service.
[208] An award for the cost of future care must be justified
on the medical evidence, but that does not necessarily mean that each item must
be specifically endorsed by a physician. In Gregory v. ICBC, 2011 BCCA
144, the court of appeal noted that evidence can be accepted from a variety of
health care professionals and said, at para. 39:
I do not consider it necessary, in order for a plaintiff to
successfully advance a future cost of care claim, that a physician testify to
the medical necessity of each and every item of care that is claimed. But there
must be some evidentiary link drawn between the physicians assessment of pain,
disability, and recommended treatment and the care recommended by a qualified
health care professional: Aberdeen [v. Zanatta, 2008 BCCA 420] at
paras. 43, 63.
[209] In Penner v. ICBC, 2011 BCCA 135, the Court of
Appeal noted that this head of damage grew out of claims for catastrophic
injuries, in which they are intended to ensure that the injured plaintiff could
live as complete and independent a life as was reasonably attainable through an
award of damages. While future care awards are not confined to catastrophic
injuries, the court said that a little common sense should inform claims under
this head, however much they may be recommended by experts in the field.
[210] Like the award for loss of
earning capacity, the quantification of damages for cost of future is an
assessment, not a precise accounting exercise, and must include adjustments for
contingencies: Drodge v. Kozak, 2011 BCSC 1316.
[223] The
plaintiff relies on the evidence of Mair Edwards, an occupational therapist, in
claiming $1,138,458 for her future cost of care. Her claim should be reduced
where the necessary evidentiary link has not been made between an item of
proposed cost and the assessments of medical experts. I agree with the
defendant that Ms. Edwards assessment appears to assume that the plaintiffs
condition will deteriorate over time and not improve. This is not consistent
with the evidence of the medical experts which suggests Ms. Isbisters
condition will improve over time, accepting that she will likely require a knee
operation at some time in the future.
[224] There is
no medical evidence to support Ms. Edwards opinion that the plaintiff will
require massage and physiotherapy for her lifetime. Nor is there medical
evidence to support her recommendation for acupuncture.
[225] There is
no medical evidence to support Ms. Edwards recommendation of $6,454 in eye
ware costs or $1,224 in future tinnitus maskers.
[226] Based on
my findings, future dental costs should not be awarded.
[227] There is
no medical support for Ms. Edwards view that the plaintiff will be required to
take analgesic medications for her lifetime. Rather, it appears she may need
them from time to time as her condition improves. Similarly, there is no link
to a medical opinion that indicates Ms. Isbister requires topical
medications for her injuries.
[228] As I do
not accept that the plaintiffs urological problems are causally related to the
accident, the future care costs associated with these problems are not
available to the plaintiff.
[229] Ms.
Edwards recommends a variety of equipment be purchased to assist Ms. Isbister
in maintaining her mobility and independence such as a four wheeled electric
scooter, a stair lift, a passive lower extremity device and a wheelchair. Some
of these devices have already been purchased by the plaintiff at a combined
cost of $15,190.
[230] Ms.
Edwards also recommends the replacement of the stair lift and the building of a
new ramp, on the basis that the plaintiff will be moving to a new one storey
home. The economist, Dr. Geoffrey Young, calculates the future costs as if all
of the associated costs will be incurred, not one or the other.
[231] Ms. Edwards
recommends that Ms. Isbister use a cane for walking. She was not aware
that Dr. Torstensen recommended walking without assistance to strengthen the
plaintiffs muscles. Ms. Edwards recommends a replacement wheelchair on the
basis that she will eventually need one because her shoulder injury is
permanent. However, she does not seem to take into account that Dr. Vincent
considers that the neck and shoulder injuries will resolve in the near future.
[232] The
defendants expert Ms. Earle and Ms. Edwards agree on a number of items of
future care. However, Ms. Earle deleted a number of items from Ms. Edwards
recommendations that appear to be unsupported or unnecessary.
[233] There are
a number of speculative items included in Dr. Geoffrey Youngs calculation of
future care costs including the cost of home support and meal service when her
husband dies or if they divorce; an amount of $64,027 for the effects of aging;
and $289,902 for assisted living.
[234] Considering
the various components of the plaintiffs claim and the expert evidence of Ms.
Edwards and Ms. Earle, I have concluded that a reasonable award for future care
costs is $200,000.
E.
Special Damages
[235] The
plaintiff seeks special damages in the amount of $73,589.35. Of this amount, a
significant portion is related to the costs of physiotherapy and massage
therapy.
[236] ICBC accepted
the cost of physiotherapy up to the end of September 2012, at which point they
amounted to $24,538.45.
[237] The
defendant says that the frequency of physiotherapy treatments has been
excessive. The evidence does not satisfy me that physiotherapy has been used
excessively. In light of the nature of the plaintiffs injuries, particularly
to her left leg, I accept that she has benefited from physiotherapy, if for no
other reason than it has maintained any gains in her well-being that she has
achieved so far. However, the premium charges of $11 per visit are excessive in
that they are added to cover the interest cost of the outstanding account. I
also consider that charges for multiple areas treated, whether or not more than
one area is treated, to be excessive. Those excessive charges should be deleted
from the amount claimed.
[238] In my view
the medical evidence does not support the extent of massage therapy used by the
plaintiff. I am not satisfied that any amount should be awarded to the
plaintiff for massage therapy.
[239] Mileage
costs do not seem appropriate as the plaintiff has saved transportation costs
by not having to travel to and from a place of employment. That saving would
appear to offset her costs of travelling to and from her medical appointments.
[240] Costs related
to the treatment of the plaintiffs urological problems are not recoverable
because I have found that those problems are not causally related to the
accident. Similarly her dental costs are not awarded because of my finding that
they were not made necessary because of injuries from the accident.
[241] Of the
claim relating to the loss of benefits because Mr. Fowler left his
employment at Rose Manor to assist Ms. Isbister, the amount of $992.74 is
allowed.
[242] In light
of these reasons counsel should agree on the actual amount payable for special damages.
F.
In-Trust Claim
[243] The
plaintiff claims $161,842.41, which she says represents the value of the
services of Mr. Fowler in caring for her, and providing housekeeping after
the accident.
[244] Case
authorities indicate that a trial judge should be cautious in making this type
of award and consider whether the services were simply those expected from a
family member and were necessitated by the nature of the injuries or would have
been provided in any event.
[245]
In Bystedt v. Hay, 2001 BCSC 1735,affd 2004 BCCA 124, D. Smith J.
(as she then was) said at para. 180:
(a) the services provided must replace services necessary
for the care of the plaintiff as a result of a plaintiff’s injuries;
(b) if the services are rendered by a family member, they
must be over and above what would be expected from the family relationship
(here, the normal care of an uninjured child);
(c) the maximum value of such services is the cost of
obtaining the services outside the family;
(d) where the opportunity cost to the care-giving family
member is lower than the cost of obtaining the services independently, the
court will award the lower amount;
(e) quantification should reflect the true and reasonable
value of the services performed taking into account the time, quality and
nature of those services. In this regard, the damages should reflect the wage
of a substitute caregiver. There should not be a discounting or undervaluation
of such services because of the nature of the relationship; and,
(f) the family members providing the services need not
forego other income and there need not be payment for the services rendered.
[246] Needless
to say, Mr. Fowler provided some services to Ms. Isbister that would
have been expected from a loving partner. However, for a period of time after
her accident, Mr. Fowler provided some essential services to the plaintiff
that would have necessitated the hiring of a trained care giver.
[247] Ms. Mair
Edwards, an occupational therapist, reported that Mr. Fowler provided the following
services for the specified times from July 2010 until May 2011:
1. Administering
medication – 30 minutes each day;
2. Medical
supervision – one hour every three months;
3. Personal
care – three hours each day;
4. Transportation
– three hours each week;
5. Cleaning,
cooking, shopping, laundry and meal preparation – two hours each day; and
6. General
supervision – four hours each day.
[248] This
amounts to a total of 10 hours per day.
[249] By the end
of March 2011, I am satisfied that Ms. Isbister no longer required the
amount of care that had been provided by Mr. Fowler before that time. It
appears that she only required some set-up assistance with grooming, bathing
and dressing. Housekeeping assistance with cleaning and laundry was being
provided by a third party at the same time.
[250] Based on
her discussions with Mr. Fowler , Ms. Edwards reported that between June
2011 and October 2013 Mr. Fowler assisted Ms. Isbister with washing,
grooming, showering, toileting, and transfers, spending about one hour each
day; transportation about two hours each month; cleaning, cooking, shopping,
laundry and meal preparation for one hour a day. The evidence does not satisfy
me that Ms. Isbister needed this assistance. She had become quite
independent and, for example, had started driving and was transferring
independently. Some of these activities such as cooking, Mr. Fowler had
done before the accident. The assistance provided by Mr. Fowler during
this period was not beyond what would have been expected from a caring partner
in a family situation.
[251] In my
view, by the end of March 2011, Mr. Fowler did not need to be at home and
caring for Ms. Isbister on a full-time basis. The assistance that was
required such as some shopping, cooking or cleaning could have been done during
non-working hours just as it had been before the accident.
[252] In
determining the value of Mr. Fowlers services, Ms. Edwards used an hourly
rate generally in excess of $30. At his employment before the accident, he was
earning $18.78 per hour. In my view the appropriate hourly rate should be Mr. Fowlers
lost opportunity cost of $18.78 per hour.
[253] In
relation to the period when Mr. Fowlers services were necessary, that is
after the accident and until the end of March 2011, based on Ms. Edwards assessment
of the services taking 10 hours per day, the total time would have been
about 2,700 hours. At the rate of $18.75 per hour, Mr. Fowlers lost
opportunity was $50,625. Considering that some of the services provided by him
during that period were those that would have been expected in light of his
relationship with Ms. Isbister, and some (such as cooking and meal
preparation) he would have done before the accident, I consider a reasonable
amount of compensation to be $40,000.
IV.
Summary
[254] The
plaintiff is entitled to the following damages:
| Non-Pecuniary Damages | $100,000 |
* | Past Income Loss | $134,074 |
* | Loss of Earning Capacity | $300,000 |
| Cost of Future Care | $200,000 |
| Special Damages | (to |
| In-Trust Claim | $40,000 |
* The parties shall provide written submissions on the income |
| |
V.
further submissions
[255]
The parties shall provide further written submissions regarding a
management fee, interest on the loans to the plaintiff, the tax gross-up and
costs. Such submissions shall be filed no later than August 31, 2014.
Bowden
J.