IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Karlsson v. Noormohamed, |
| 2015 BCSC 911 |
Date: 20150601
Docket: M130810
Registry:
Vancouver
Between:
Raija Anita
Karlsson
Plaintiff
And
Nargis A.
Noormohamed, Amirali Ahmed Remtulla Noormohamed
Defendants
Before:
The Honourable Mr. Justice Abrioux
Reasons for Judgment
Counsel for the Plaintiff: | P. Gordon S. Jaworski |
Counsel for the Defendants: | K. Armstrong A. Stewart |
Place and Date of Trial: | Vancouver, B.C. April 27, 29 – 30, and May 1, 2015 |
Place and Date of Judgment: | Vancouver, B.C. June 1, 2015 |
Table of Contents
III: THE MEDICAL AND EXPERT EVIDENCE
A: Findings of Fact/Conclusions on
the Evidence
C: Past Loss of Earning Capacity
D: Future Loss of Earning Capacity
I: INTRODUCTION
[1]
The plaintiff, Raija Karlsson, was injured in a motor vehicle accident
on September 23, 2011 (the Accident). The defendants have admitted liability;
only damages are in issue.
[2]
On the day of the Accident, Ms. Karlsson was walking from her home in
Burnaby to the Metrotown Skytrain station. She was on her way to work at the
Sears store which was then located on Robson Street in Vancouver. While walking
on a raised sidewalk through the parking lot at the Metropolis at Metrotown
shopping mall (the Mall), she was struck by a vehicle driven by the defendant,
Nargis Noormohamed, and owned by the defendant, Amirali Noormohamed.
[3]
The collision resulted in a fracture dislocation of Ms. Karlsson’s
dominant right shoulder, a fracture to her left ankle, a sprain to her right
ankle, and injuries to her knees and jaw. She also alleges that there have been
psychological consequences to these injuries. The right shoulder injury has led
to ongoing chronic pain and what Ms. Karlsson alleges is a significant
disability including the permanent inability to return to work.
[4]
The defendants led no evidence and agreed that the injuries have
resulted in a permanent inability to return to meaningful employment.
Mitigation of damages is also not in issue.
II: BACKGROUND/THE EVIDENCE
[5]
The factual background is not in dispute, nor is the plaintiffs
credibility. What is in issue are the consequences of the injuries on Ms.
Karlssons ability to function both prior to and after the trial and her plans
to work had the Accident not occurred.
[6]
Ms. Karlsson was born in Finland on December 5, 1948. She and her family
immigrated to Canada in 1965 when she was 16 years old. While in Finland, she
obtained the equivalent to a British Columbia high school matriculation.
[7]
Within days of arriving in Canada, Ms. Karlsson met her future husband.
They were married when she was 19 years old and the couple had two sons, Chris,
who is now 42 years old, and Cliff, now 39 years old.
[8]
The plaintiff operated a beauty salon in the family home for a number of
years. She also worked as a realtor with her husband for a period of time.
[9]
Ms. Karlsson joined Sears Canada in 2000. Initially, she worked in women’s
fashion including in a management role. In 2002, she commenced work in the cosmetics
department as an esthetician.
[10]
After a routine medical checkup, Mr. Karlsson was diagnosed with liver
disease. He was on dialysis for 14 years until his death in July 2009.
Mr. Karlsson gradually stopped working and Ms. Karlsson became the
breadwinner. She was also his caregiver and nurse. She took time off work in
2008 and 2009 to be with and care for him. The couple had been married 45 years
at the time of Mr. Karlssons death.
[11]
Ms. Karlssons was left with little money and had to return to work
despite her grief. In 2009 and 2010, she missed some days from work to deal
with her grief. While she had to work for financial reasons, Ms. Karlsson
testified that she loved her job, especially the socializing with customers and
co-workers.
[12]
In May 2011, Ms. Karlsson decided to reduce her hours at Sears to 80% of
full-time or four days per week. She testified she did this because she wanted
more time to be able to do other things. A work assessment performed at this
time refers to her reducing the work hours due to fatigue.
[13]
Sears has no mandatory retirement policy. In fact, Sears has had
employees work well past the age of 65. Ms. Karlsson continued to work at the Robson
Street Sears location until the time of the Accident. She has not worked since
then and was on long-term disability due to the injuries sustained in the
Accident when the store closed in October 2012. But for the Accident, Ms.
Karlsson would have had the opportunity to be transferred to another Sears store
including stores closer to her home. Due to her injuries, she accepted a buy
out which was offered to her and other employees when the Robson Street store
was closed.
[14]
The plaintiff stated she had no plans to retire prior to the Accident
and wanted to work for as long as she could. She stated she could not live on
CPP and Old Age Security benefits alone since they total approximately $1200 a
month.
[15]
Ms. Karlsson was in good health prior to the Accident. She enjoyed going
for long walks and planned to take up ballroom dancing. She loved to cook. She
lived alone in a 600 square foot apartment in Burnaby and did all her own cooking
and cleaning. Her sons testified that she was meticulous in the manner she kept
her home. Ms. Karlsson had her own car and drove regularly.
[16]
Ms. Karlsson’s extended family, which includes her mother and four
brothers, are still alive and live in British Columbia. Her mother and three of
her brothers live in Surrey, B.C.
A: The Accident
[17]
Ms. Karlsson was walking on a raised sidewalk through the Mall’s
parking lot. On one side was a low brick wall containing a planter and on the
other were parking spots where cars were to park perpendicular to the sidewalk.
As Ms. Karlsson was walking, the defendants vehicle accelerated up and onto
the sidewalk. It struck Ms. Karlsson and propelled her seven to ten feet through
the air. The vehicle hit her legs and she recalled being propelled over the
planter and thinking "this might be it".
[18]
The vehicle hit the brick wall causing extensive damage.
[19]
The police and ambulance attended the scene. Ms. Karlsson was transported
to Burnaby General Hospital. She was discharged approximately two weeks later on
November 6, 2011.
B: Ms. Karlsson Post-Accident
[20]
At the scene of the Accident, Ms. Karlsson felt numb and then
experienced pain throughout her body. At the hospital, she was diagnosed with a
fracture dislocation of her right shoulder which required surgery. An operating
room was not available and the surgery did not take place until September 25,
2011. She was also initially diagnosed with a left ankle fracture and a right
ankle sprain.
[21]
On September 25, 2011, Dr. Juan Kim, an orthopaedic surgeon, performed a
right cemented shoulder hemiarthroplasty and a closed reduction and short leg
casting of Ms. Karlsson’s left ankle.
[22]
While at Burnaby General Hospital, the plaintiff was treated with
inpatient physiotherapy and occupational therapy. She was in a great deal of
pain throughout her time in hospital which necessitated her being on morphine
and other pain medication.
[23]
Upon her discharge from hospital, Ms. Karlsson required certain medical equipment
at her home. She was in a wheelchair for several months and also used a cane
from time to time.
[24]
A home rehabilitation program was set up, which included occupational
therapy, housekeeping assistance, and home physiotherapy.
[25]
The at-home physiotherapy treatments continued until January 2012.
Ms. Karlsson then attended additional physiotherapy until the middle of
May 2012. She had occupational therapy assistance until May 2013 as well as
access to a kinesiologist. Housekeeping assistance was also provided until May
2013 when funding ceased. At that time, the plaintiff was receiving two hours
assistance bi-weekly.
[26]
In 2013, Ms. Karlsson went for nine sessions with Dr. Lai, a
psychologist. She stated that she discontinued the treatments since she was
uncomfortable with certain aspects of her interactions with Dr. Lai, and also
because she had concluded for herself that her fears were well-founded. She
also testified that, since her anxiety level has not decreased as she had hoped
when she is outside her home, she would be prepared to attempt further
treatment with a psychologist if she had the financial ability to do so.
[27]
At the time of trial, Ms. Karlssons symptoms included a very painful
right shoulder with severely restricted range of motion. She has developed a
driving phobia and has been limited in her ability to get around, requiring
taxis when she attended therapy sessions. She is afraid to use public transit
due to a fear of being jostled and being unsteady and unable to stabilize
herself with her right arm. She is bothered by the noise and traffic in the
Metrotown area where she lives and is contemplating moving to a quieter
location, probably White Rock. This has been the situation since her condition
essentially plateaued as of the spring of 2012.
[28]
She testified she has a great deal of fear and anxiety with respect to
her injuries. Her left ankle is rarely symptomatic and she has only occasional
pain in her knees. She stated her sleep is severely disrupted due to the
shoulder pain. She has difficulty performing certain household tasks. Her sons assist
in cleaning windows and glass doors. The injuries sustained in the Accident
essentially put her life on hold.
[29]
Insofar as the possibility of undergoing further surgery is concerned, Ms. Karlsson
stated that the prospect "scares me". She is very concerned about the
potential complications conveyed to her about surgery, specifically noting one
very concerning [complication] is to lose feeling in the right hand, the
lengthy recovery time, and the anticipated pain involved. She stated in direct
examination, I know the pain I went through and to relive it again isn’t for
me. In cross examination, she said her impression of the surgery as described
to her by Dr. Kim, her treating orthopaedic surgeon, was that it was worse than
the original surgery. She testified she understood there was a 35% risk of
complications arising.
[30]
Ms. Karlssons sons both testified. Chris Karlsson described his mother
as a bubbly and active person prior to the Accident. He said that she was
quieter and withdrawn after his fathers death but that she snapped herself
out of it over time. By the time of the Accident, he considered that his
mother had more or less returned to the way she was prior to Mr. Karlssons
death.
[31]
Chris Karlsson described his mother as being stoic after the Accident.
He testified that she now hides things. The gist of his evidence was that the
plaintiff puts on a brave face. He stated he has observed an emotional toll on
his mother. She is simply not capable of doing what she was capable of prior to
the Accident. He will wash the windows and doors of her apartment. The biggest
change he has noticed is that his mother is not as brave as she was prior to
the Accident and lacks spontaneity.
[32]
He stated that he purchased a car for his mother but she seldom drove
it. Accordingly, he uses the vehicle himself most of the time.
[33]
Cliff Karlsson confirmed much of his brothers observations. He noted
that his mothers right arm is basically dead weight, that she always supports
her right arm with the left, and never appears comfortable.
[34]
He stated his mother was meticulous when it came to taking care of her
home prior to the Accident.
[35]
The biggest change he noted in his mother is that her family had been trying
to get her to come out of her shell after his fathers death. We were almost
there and then the Accident occurred. The physical toll created a mental toll.
[36]
Ms. Deborah Gerber testified. She is the British Columbia Human
Resources Director for Sears Canada.
[37]
She stated that the regional offices were located at the Robson Street
store until it closed in October 2012. She saw Ms. Karlsson on virtually a
daily basis since she purchased her cosmetic products from her. Ms. Gerber
stated that the plaintiff appeared very happy in her work. She confirmed there
was no mandatory retirement age for Sears employees and that there was an
advantage to having older employees since there was a varied clientele. She
noted that, even after employees had retired, there were opportunities to work
on a seasonal basis, for example at Christmas.
[38]
Ms. Gerber also described the options available to the Robson Street
store employees when it closed in October 2012 and the status of other Sears
stores in the Lower Mainland to which I shall refer below.
III: THE MEDICAL AND EXPERT EVIDENCE
A: Dr. Winston
[39]
The injuries sustained by Ms. Karlsson were summarized this way by Dr. Paul
Winston, a physiatriast, in his report of January 24, 2014:
She sustained numerous injuries at the time of the accident including:
1. A fracture
dislocation of the right shoulder that was comminuted and required a
hemiarthroplasty to repair.
2. Partially
torn biceps tendon.
3. Distal left
fibular fracture and likely left tibial distal diametaphysis fracture.
4. Contusion
to the back of her head.
5. Right
ankle sprain.
6. Psychological
side effects of anxiety, depression and a driving phobia.
7.
Damage to her lower dental bridge.
[40]
Dr. Winston went on to opine:
FUNCTIONAL IMPACT
Ms. Karlsson was not able to return to her job of 11 years.
She had just begun working four days a week at nearly 8 hours a day. She had
cut back her hours to allow free time after caring for her husband for many
years. She has lost income from that time. She had planned to keep working. Her
current range of motion in her shoulder would make it extremely painful and
difficult for her to be a beauty consultant as she simply does not have the
range of motion to apply makeup and assist clients at this time.
I do not recommend at her age of 65 that she would be
qualified for many positions other than that were quite sedentary because of
her restricted range and pain in her right shoulder. It would have to be of
limited hours.
RECREATIONAL IMPACT
Ms. Karlsson had been restricted from pursuing recreational
activities as she was working full-time and was the full-time caregiver for her
very ill husband. She had been planning to start many sporting and athletic
activities in her retirement, as she was healthy without limitations. She can
no longer pursue these activities including wanting to swim, golf and play
tennis. She also feels limited in her tolerance to walk, though that is
increasing and improving all the time. Her retirement is far different than she
had planned for.
PROGNOSIS
Ms. Karlsson is improving well from her left ankle fracture.
Thankfully it did not extend into the ankle mortis and therefore traumatic
arthritis is a possibility but unlikely at this point due to her injuries. A
follow up x-ray might help to see if this has developed in the interim since
her accident.
Her right shoulder is permanently deformed. It is unlikely
that she will gain range of motion and further function in that arm. Her
surgeon had wished that she consider having a second surgery though he did not
feel she was emotionally ready. Further orthopedic surgeons had suggested that
conservative management was better as she did not have pain at rest, as there
was no guarantee that the surgery would help and there was a risk of neurologic
injury or worsening function. In my experience, the incidence of restricted
range of motion is extremely high after any complicated shoulder fracture. Even
if the arthroplasty were revised there is nothing to suggest that she would
suddenly gain greater range of motion, mobility, function and a decrease in
pain. I recommend that she not have surgery at this time, as she is simply not
ready for it. It would require extensive rehabilitation and going back to being
completely dependent on the left while she is recovering. She should only
resort to surgery if there is a failure of the fractures or the components. For
this reason I would recommend that she have an annual follow up with her
orthopedic surgeon.
Her shoulder may develop
worsening complications with time. This would include further breakdown of the
remaining articular cartilage, and arthritis. There could be loosening of the
prosthesis. This will need to be monitored, as it is already not articulating
correctly in the joint.
[41]
At the trial, Dr. Winston testified that the shoulder revision surgery
is not often performed as the anticipated favourable outcomes are limited. He
further stated the recovery time from this surgery is long and will not
increase range of motion in the shoulder. It also may not decrease the pain
and, in fact, leads to a risk of further fracture.
[42]
In light of the fact the plaintiff was functioning and living
independently, at the time of his assessment of her, Dr. Winston recommended
against Ms. Karlsson proceeding with the surgery. Dr. Winston noted Ms.
Karlsson had indicated to him that she was done with being sick, in part
because of her experience nursing her husband during his illness.
B: Dr. Regan
[43]
Dr. William Regan is an orthopedic specialist with a specific interest
in shoulders. He saw Ms. Karlsson three times from March 2012 to December 2014.
His evidence, both in his reports and at the trial, commented on the failure of
the initial surgery and the possibility and risks related to future surgery.
[44]
In his report, dated December 10, 2014, Dr. Regan stated:
Prognosis: It is clear that by the time I reviewed
her, March 18, 2012, she had plateaued following her fracture dislocation
managed by Dr. Juan Kim with a hemiarthroplasty seven months prior. It is
equally clear that through the passage of time Dr. Kim assessed her with a
range of motion that is more generous than that noted by Dr. [Winston] and the
occupational therapist, Tracy Berry, indicating that she has in fact lost
further function of her right dominant shoulder with more limited range of
motion. Her shoulder range is now even more compromised.
She continues to feel the need to live with this problem as
she is not yet prepared to undergo the rigors of a second procedure that has a
significant complication rate. Nevertheless she has a permanent partial disability
with respect to pain and limited right upper extremity function. As a result
she is not employable as an esthetician. This would also be in keeping with the
report of Ms. Tracy Barry, Occupational Therapist.
I believe this affected her emotionally as well as physically
as she essentially does not leave her apartment for socialization any longer as
her socialization appeared to be associated with her work.
She is able to cope with
household activities but does these more slowly than normal and since she lives
alone she will leave certain tasks to different days so she does not overload
her shoulder and in fact uses her left to do any sort of at and above shoulder
height lifting positional movements or repetitive movements. Her right shoulder
has become a helper at best. This a permanent sequelae.
[45]
In his final report, dated January 21, 2015, Dr. Regan stated:
A reverse total shoulder arthroplasty has been discussed with
her in the past. This would be the only logical solution to manage her
condition and this has been cited in both reports of March and September 2012.
In an individual who has her diagnosis, the only surgical
option remaining is a reverse total shoulder arthroplasty. I would say 50% at
least of patients would opt for this option if they had her pain and
disability, but at the present time, I also understand that she has to agree
with the risks and benefits of the surgical procedure, its proposed benefits as
well as the significant complication rate, which approaches 30% in many series.
The complication rate remains
this high due to possible risks of anesthetic neurologic injury affecting the
upper extremity, infection given the large dead space created with that
procedure, dislocation of the shoulder, which requires general anesthetic to
reduced, periprosthetic fracture. These would be the early complications. The
late complications would be loosening of the prosthesis, ongoing pain that
requires revision or excision of the prosthesis and ongoing deep infection.
[46]
Dr. Regan testified that the plaintiffs shoulder condition, from an
objective standpoint, is worsening. He also described the complications arising
from the surgery, which include infection in an open space in the shoulder
joint, perforation of the stem of the humerus bone while chipping the bone
cement from the previous surgery, nerve damage, specifically the risk of losing
feeling and movement in the right arm, dislocation of the shoulder,
peri-prosthetic fractures, and blood clots. He said the complication rate is
very high. He recommended the plaintiff not undergo the surgery if she is
concerned about the complications and generally advises patients against
surgery unless they have reached the end of the line.
[47]
He also agreed on cross examination that this surgery may not decrease the
level of the plaintiffs subjective pain.
C: Dr. Day
[48]
Dr. Brian Day, an orthopedic surgeon, examined Ms. Karlsson on
September 25, 2012 with respect to her knee injuries. In his report, dated the
same day, he stated:
Physical Examination: Examination reveals that she
does have a small effusion in both knees.
Stress tests of the anterior cruciate ligaments reveal laxity
bilaterally. She has a significantly positive Lachman test bilaterally.
Collateral ligaments were stable to examination.
Manipulation of both knees in flexion did not elicit positive
McMurray’s sign. She does have bilateral patella-femoral crepitus, indicating
some chondral injuries at the patella-femoral joint.
Summary and Recommendations:
I think Ms. Karlsson has injured both knees and has mechanical derangements as
outlined above.
D: Dr. Epstein
[49]
Dr. Joel Epstein, a dentist who is a certified specialist in oral medicine,
first saw Ms. Karlsson on March 19, 2012 as a result of jaw pain arising from
the Accident. He has continued to see her over the past three years. In his
report of November 18, 2013, he stated:
Ms. Karlsson presents with residual TMD [temporomandibular
disorder] with mild findings. Her primary complaints relate to the right neck,
shoulder and arm and she is right hand dominant. Her sleep pattern while
improved continues to be interrupted primarily due to right shoulder
complaints.
I have suggested return to active
rehabilitative physical therapy program due to the mild persisting TMD, neck
symptoms and specifically, shoulder symptoms. She was encouraged to continue
her current daily exercises and her walking. In addition, she should continue
with use of the oral appliance during the night and day. TMD has improved with
the use of the appliances. It is encouraging to see this improvement with the
physical therapy to date. The prognosis is therefore favourable.
E: Ms. Berry
[50]
Ms. Tracy Berry is an occupational therapist who assessed Ms. Karlsson on
February 20, 2014. In her report of March 25, 2014 under Opinion, she stated:
8. She demonstrated significant difficulty with
static balance which has reduced since tested by the Kinesiologist in the
January 2013 report. Ms., Karlsson presents as a fall risk due to poor balance,
poor core stability and primarily one arm use. She required furniture support
to transfer[] from floor to standing and experienced stiffness transferring
from sitting to standing.
It is recommended Ms. Karlsson continue to participate in a
regular aquatic or gym exercise program to maintain her current range of
motion, strength, endurance and balance. She would likely benefit from
re-initiating such program under the supervision of a Kinesiologist to ensure
proper technique and progression of exercises,
9. Based on a functional
assessment, Ms. Karlsson is modified independent with her self-care and the
majority of her homemaking tasks, cooking, cleaning and laundry. Based upon
observation, she performs the majority of her tasks with her non-dominant left
arm/hand and uses her right hand/arm as a helper close to her body. This
methodology takes a significantly longer amount of time and more energy to
complete her daily activities. Ms. Karlsson was observed to have difficulty
with tasks requiring bilateral arm use, e.g. vacuuming, cleaning windows, and
cleaning the bathtub, despite use of adaptive equipment. Due to residual right
arm impairment, she has difficulty with seasonal or less-routine tasks such as
moving furniture to clean underneath, removing glassware to dust open shelving,
dusting a bedroom ceiling fan, changing light bulbs, or hanging pictures. To
preserve function of her left arm, reduce pain exacerbations of the right
shoulder, and ensure her safety, Ms. Karlsson would benefit from assistance
with heavier and seasonal cleaning tasks that are outside of her current
functional capacity such as those listed above. Based on the size of her 650
square foot apartment with single occupancy, if she received regular assistance
with cleaning, she would likely require two hours of service per week. This
level of assistance assumes that she will continue to perform the majority of
the daily homemaking tasks, modified independently.
[51]
Ms. Berry made a series of future care recommendations including
psychological counselling, assistance should Ms. Karlsson decide to move
residence, and housekeeping services of two hours a week for heavier cleaning
tasks.
[52]
On cross examination, she stated that she was not aware when she
authored her report that Dr. Winston had recommended housekeeping on a monthly
basis but noted that she had observed Ms. Karlsson in her home environment
prior to making her recommendations.
[53]
Ms. Berry also commented on the plaintiffs use of her left arm to
assist the weak dominant right arm in performing tasks around her apartment.
She agreed that her recommendation relating to future physiotherapy treatments
was conditional on Ms. Karlsson deciding to undergo surgery.
F: Mr. Benning
[54]
Mr. Darren Benning is an economist who prepared a report, dated April
27, 2015, outlining the costs of Ms. Berrys future care recommendations.
[55]
On cross examination, Mr. Benning agreed unemployment contingencies for
wage loss claims would be about 5% to 6% with part time contingencies being
approximately 10% to 12%. Unemployment contingencies increase as employees
approach age 65.
[56]
Mr. Benning also stated that the average retirement age for women is
about 62 or 63 years of age and a woman still working at age 63 would likely
retire within three to four years, that is by the time she was 66 or 67 years
old. He said that individuals with high school education (which is the
plaintiffs situation) tend to retire earlier, as their work is harder.
IV: THE PARTIES POSITIONS
A: The Plaintiff
[57]
Ms. Karlssons position is that she sustained significant injuries in
the Accident that have had a profound effect on her life. She is in constant
pain with a seriously compromised right dominant arm. She is partially disabled
from her activities of daily living and is totally disabled from competitive
employment.
[58]
She claims the following damages:
Non-pecuniary damages: | $175,000.00 |
Past wage loss and loss of | $ |
Loss of future earning | $200,000.00 |
Cost of future care: | $ |
Special damages, as agreed: | $ 27,631.88 |
Total: | $538,474.07 |
B: The Defendants
[59]
The defendants acknowledge the seriousness of the plaintiffs injuries
including the fact that she is competitively unemployable. However, they submit
that the amount sought for general damages is well outside the reasonable range
and that, but for the Accident, Ms. Karlsson would have commenced her
retirement by the time of trial if not before. They also take issue with some,
but not all, of the claims for cost of future care.
[60]
They say that a reasonable range of damages is as follows:
Non-pecuniary | $80,000.00 |
Past | $40,000.00 |
Loss of | $0 |
Cost of future care: | $28,300.00 |
Special damages, as agreed: | |
Total: | $175,931.88 |
V: DISCUSSION
A: Findings of Fact/Conclusions on the Evidence
[61]
I make the following findings of fact and reach certain conclusions:
(a) at the time of the Accident,
Ms. Karlsson was fit and healthy. She was well on her way to recovering from
the grief resulting from her husbands death. There were no physical or mental
impediments to her continuing to work for as long as she considered it
appropriate to do so;
(b) the Accident caused significant
injuries including a comminuted fracture dislocation of the right shoulder that
required a hemiarthroplasty. The plaintiff also sustained other injuries
including damage to her jaw and to her lower extremities, although these had
largely resolved by the time of trial. She also experienced psychological side
effects of anxiety, depression, and a driving phobia;
(c) Ms. Karlsson is now in nearly
constant pain and has severely limited function in her dominant right arm. She
has difficulty performing most activities of daily living due to the pain and
reduced range of motion. The psychological effects of the Accident have been
significant. Ms. Karlsson rarely drives and is reluctant to venture out of her
home. She lives with a constant "fear factor";
(d) these injuries which affect her
ability to function have also greatly affected the way the plaintiff would have
lived day-to-day both personally and from a vocational perspective had the
Accident not occurred;
(e) the hemiarthroplasty has failed
and, from an objective standpoint as noted by Dr. Regan, the right shoulder
condition is worsening. Ms. Karlsson has no present intentions to have further
surgery. There is, however, a realistic and substantial possibility albeit slight greater than de minimis
that she will elect to have the procedure performed at some point in time in
the future;
(f) as a result of her injuries,
the plaintiff will likely move from her current residence;
(g) the plaintiff would have worked
at Sears Canada at an 80% position until at least April 2015. She would also
have continued to work into her 70s, although likely on a diminishing basis
over time; and
(h) as a result of her injuries, Ms.
Karlsson remains partially disabled from her activities of daily living and has
certain future care needs that I shall identify below.
B: General Damages
[62]
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life, and loss of amenities. The compensation
awarded should be fair to all parties and fairness is measured against awards
made in comparable cases. Such cases, though helpful, serve only as a rough
guide as each case depends on its own unique facts: Trites v. Penner,
2010 BCSC 882 at paras. 188-189.
[63]
The
framework for the assessment of non-pecuniary damages was outlined by the Court
of Appeal in Stapley v. Hejslet, 2006 BCCA 34, and includes the age of the plaintiff, the
nature of the injury, the severity and duration of pain, the extent of the
disability, the emotional suffering and the loss or impairment of life, impairment
of family and social relationships, impairment of physical and mental abilities,
and the loss of a lifestyle. A plaintiff is not to be penalized if he or she is
stoic in her response to the injury and pain.
[64]
The assessment of non-pecuniary damages is necessarily influenced by the
individual plaintiffs personal experiences in dealing with his or her injuries
and their consequences and the ability to articulate that experience: Dilello
v. Montgomery, 2005 BCCA 56 at para. 25.
[65]
I have reviewed the cases referred to me by counsel. Those relied on by
the plaintiff to substantiate an award of $175,000 under the head of non-pecuniary
damages include Bannerman v. Sturrock, 2013 BCSC 918, which raises the
issue that in some ways injuries which relate to an impairment of movement to
persons described as being in their advancing years may have a more profound
effect than on younger individuals.
[66]
The other authorities relied on by the plaintiff are Zawadzki v.
Calimoso, 2011 BCSC 45; Soligo v. Turner, 2002 BCCA 73; and Redmond
v. Krider, 2015 BCSC 178.
[67]
In support of their position that the appropriate range for general damages
in this case is between $80,000 and $100,000, the defendants rely on John v.
Landry, 2006 BCSC 1767; Bevacqua v. Yaworski, 2012 BCSC 880; Etson
v. Loblaw Companies Ltd., 2010 BCSC 1865; and Tchir v. South Coast
British Columbia Transport Authority, 2014 BCSC 1119.
[68]
In Etson, Madam Justice Fisher reviewed certain authorities
pertaining to plaintiffs in their 60s and 70s who sustained significant soft
tissue or orthopedic injuries. Ms. Etson was 76 years old at the time of trial
and Fisher J. concluded:
[70] In this case, the
injuries had a profound effect on Ms. Etsons life. Her active and independent
life style, which was important to her, was seriously compromised for over a
year and a half. During that time she experienced significant pain and had to
undergo three surgeries. She is now able to resume most of her former
activities but she still has some residual effects. Given my findings, I assess
non-pecuniary damages at $90,000.
[69]
In Tchir, Ms. Tchir was 60 years old at the time of her accident,
and 65 years old at the time of trial. She sustained several injuries including
a right shoulder rotator cuff tear which required surgery and a torn meniscus
to the right knee which also required surgery. She was unable to continue
working. In that case, Mr. Justice Davies described the effect of the injuries
this way:
[114]
The suffering Mrs. Tchir has endured because of the fall has now
lasted almost five years and she will likely continue to suffer from it into
the future with only limited reduction. That suffering has had a disastrous
impact on her personal life as she has moved from being a dynamic, highly
social individual who enjoyed outings with her daughter and husband to
existence in a life in which she is in constant pursuit of pain relief and
medical treatment.
[115] She is now more than 65 and
does not face the prospect of the healthy energetic and relatively prosperous
life she could have lived into and past retirement had it not been for the
defendants negligence.
[70]
General damages in Tchir were assessed at $110,000. The
defendants in this case submit that Ms. Karlssons injuries have had a lesser
impact on Ms. Karlssons daily functioning than was the case with Ms. Tchir
which is why they submit the top end of the range is $100,000.
[71]
In Tchir, Davies J. reviewed a number of authorities and noted:
[122] The cases cited by both
counsel which I do find useful in this case establish to my satisfaction that
for a serious shoulder injury requiring surgery of the type endured by Mrs.
Tchir with only limited success and a resulting permanent disability together
with long lasting pre-trial chronic pain and a very guarded prognosis for any
improvement, a non-pecuniary award in the broad range of from $70,000 to
$120,000 is warranted.
[72]
Without intending to minimize what occurred to Ms. Karlsson, the cases
relied on by the plaintiff, in my view, broadly involve situations where the
losses sustained by the plaintiff or the treatment endured, including
subsequent operations, were more significant than what occurred to the
plaintiff in this case. Ms. Soligo, for example was an elite curler who lost
the ability to compete internationally. Ms. Redmond had a significant
psychiatric injury in addition to the chronic pain which resulted from her
physical injuries.
[73]
On the other hand, I consider the totality of Ms. Karlssons injuries to
be more significant than those in Etson where the plaintiffs lifestyle
was seriously compromised for a year and a half or in Tchir where there
was some prospect of limited reduction in symptoms which is not the case here.
[74]
When I take into account :
· the
serious nature of the shoulder injury and the possibility of future surgery and
what that may entail;
· the
extent to which Ms. Karlssons personal life has been greatly affected by the
consequences of the shoulder injury;
· the
loss of enjoyment and social interaction which resulted from the loss of Ms. Karlssons
job at Sears;
· the
other physical injuries sustained, some of which continue to have a minor
influence on Ms. Karlssons daily wellbeing; and
·
the ongoing emotional difficulties;
I award $120,000 under this head of damages.
C: Past Loss of Earning Capacity
[75]
The approach to assessing a past loss of earnings or earning capacity
claim was summarized by Mr. Justice Verhoeven in Gillam v. Wiebe, 2013
BCSC 565 at paras. 90-95:
[90] In their submissions both parties used the term
past wage loss for this head of damage. The award relates to assessment of
the value of the work that the plaintiff would have performed but for her
accident injuries. The award is properly characterized as a loss of earning
capacity: Bradley v. Bath, 2010 BCCA 10 at paras. 31-32; Lines v. W
& D Logging Co. Ltd., 2009 BCCA 106 at para. 153; X. v. Y., 2011
BCSC 944 at para. 185.
[91] The plaintiff need not establish the actual loss of
earnings on a balance of probabilities. What would have happened prior to the
trial but for the accident injuries is hypothetical, just the same as what may
happen in the future, after the trial.
[92] In Smith v. Knudsen, 2004 BCCA 613, at para.
36, Rowles J.A. stated:
What would have happened in the
past but for the injury is no more "knowable" than what will happen
in the future and therefore it is appropriate to assess the likelihood of
hypothetical and future events rather than applying the balance of probabilities
test that is applied with respect to past actual events.
[93] However the plaintiff must establish on a balance
of probabilities that there is a causal connection between the accident
injuries and the pecuniary loss claimed; mere speculation is insufficient: Smith
v. Knudsen para. 36; Athey v. Leonati, [1996] 3 S.C.R. 458, para.
27; Perren v. Lalari, 2010 BCCA 140, para. 32; Falati v. Smith,
2010 BCSC 465 at para. 41, affd 2011 BCCA 45.
[94] Just as in the case of the assessment of future
loss of earning capacity, in the case of past loss of earning capacity, if the
plaintiff establishes a real and substantial likelihood of the pecuniary loss
asserted, the assessment of damages to be awarded as compensation depends upon
an assessment of the degree of likelihood of the particular loss, combined with
an assessment of the value of the loss.
[95] In cases where it is
appropriate to proceed with an assessment of the value of the loss, sec. 98 of
the Insurance (Vehicle) Act , R.S.B.C. 1996, c. 231 stipulates that a
person who suffers loss of income is only entitled to recover the net income
amount as damages: see X. v. Y., 2011 BCSC 944 at para. 187 and Gordon
v. Lines, 2009 BCCA 106 at paras. 152-186.
See also Rowe v. Bobell Express Ltd., 2005 BCCA
141 at para. 25; M. B. v. British Columbia, 2003 SCC 53 at para. 27.
[76]
The parties agree that, had Ms. Karlsson continued to work 80% of full-time
hours at Sears from the date of the Accident to trial, her net earnings would
have been $72,793.79. Once the severance pay she would not otherwise have
received is deducted, the net loss is $60,235.91.
[77]
The plaintiffs position is that this amount should not be reduced by
contingencies as there is no evidence that Ms. Karlsson would have missed work,
and lost income, but for the Accident. She had no plans to retire and would not
have stopped working when Sears on Robson Street closed. Rather, she would have
taken advantage of the opportunity to relocate to another store.
[78]
While the defendants agree the plaintiff is entitled to at least 12
months of wage loss to the date of the closure of the Sears on Robson Street ($20,545.86
net), they submit that Ms. Karlssons ongoing and continuous employment after
the closure of the Robson Street Sears, even without the Accident, would not
have been certain.
[79]
They argue that the remaining $39,690.05 claimed in wage loss from the
closure of the Sears on Robson Street to the date of trial should be reduced by
25% to 50% (i.e., by $10,000 to $20,000) for certain contingencies including an
expectation of normal retirement age of 65, that is by December 5, 2013, and
what is now known of the closure of the Sears on Robson Street in October 2012
and other locations, notably the Richmond store in 2014.
[80]
I do not accept the defendants submission on this point. At paragraph 61(g)
above, I found that Ms. Karlsson would have continued to work at 80% capacity
as had been the case since March 2011 until the trial had the Accident not
occurred. I reached this conclusion in that:
· the
plaintiff had reduced her hours to a new schedule which was designed to meet
her then anticipated needs and desires only a few months prior to the Accident;
· she
needed to continue to be employed since she required more than $1200 per month
for the standard of living she wished to enjoy at that time of her life;
· the
social interaction with her co-workers was an important part of her life and
routine at that time and there was no reason for this to change in the
foreseeable future; and
·
as Ms Gerber described in her evidence, there was employment
available to the plaintiff at other Sears stores, including Metrotown which is
very close to where Ms. Karlsson lives.
[81]
Accordingly, the plaintiff is awarded $60,235.91 under this head of
damages.
D: Future Loss of Earning Capacity
[82]
I summarized the applicable principles pertaining to future loss of
earning capacity in Karim v. Li, 2015 BCSC 498 at paras. 143-151, and
will not repeat them in these reasons for judgment. See also Schenker v. Scott,
2014 BCCA 203 at paras. 50-51.
[83]
The plaintiffs position is that the earnings approach is appropriate in
this case. She seeks an award based on her working at 80% full-time, at
approximately $26,000 per year, until age 75. Ms. Karlsson submits that there
should be no reduction for the contingency that she may have stopped work
before the age of 75 as it is just as likely that she would have, but for the
Accident, continued to work beyond age 75.
[84]
Using the discount rate of 1.5% on an annual income of $26,000 results
in a gross amount of $206,000. Ms. Karlsson seeks an award of $200,000.
[85]
Although her counsel recognized during argument that the negative
contingencies may outweigh the positive ones, Ms. Karlsson submits that there
should not be a substantial discount for negative contingencies in that there
is no evidence that she would have been unable or unwilling to work until age
75 or beyond.
[86]
The defendants position is that there should be no award for income
loss past the date of trial. That is because Ms. Karlsson is now almost 66
years old and, from a statistical perspective, likely to have retired by now.
In the alternative, if there is to be an award, the defendants submit it should
be no more than the equivalent of one year’s salary, or approximately $25,000.
[87]
The defendants point to the various factors they raised with respect to
the past loss of earning capacity claim and additional matters including:
·
although the plaintiff testified she wanted to work for as long
as she could, there was no additional evidence led that would lead to the court
being satisfied that there was a real and substantial possibility that Ms.
Karlsson would work until she was well into her 70s;
· Ms.
Karlsson had embarked on a course of voluntary semi-retirement in May 2011.
She had done this to get more free time and commence what she termed my senior
time happies;
· she
was still having difficulties coping with the death of her husband and had
missed some time from work earlier in 2011;
· from
a statistical perspective, women retire at age 62 or 63. Ms. Gerber, during a pre-trial
examination, had described the retirement age as being 65 years of age. Mr.
Benning testified that individuals with a high school education tend to retire
earlier since their work is harder from a physical perspective. In addition,
unemployment contingencies for income loss claims are at 5% to 6%, and 10% to 12%
for part time workers; and
·
Ms Gerber had also stated that 41%
of the employees at the Robson Street store chose to stay on and some of those
that did not still work on a seasonal basis. Employees at the recently closed
Richmond store were not offered the same severance package as those at the
Robson Street store. Of the 97 employees at the Richmond store, positions were
found for 12 of them and the rest were let go.
[88]
It is a difficult exercise at the best of times to gaze into the
crystal ball and assess future losses. That is particularly so in a case such
as this where the plaintiff is credible in her evidence that, but for the
Accident, she intended to work for as long as she could.
[89]
An assessment of Ms. Karlssons future intentions should reflect
contingencies both positive and negative. As Chief Justice Finch stated in Soligo
at para 34, [t]he contingency reduction is, however, largely a matter of
judgment dependent on the particular circumstances of each case.
[90]
I do not accept the defendants submission that, but for the Accident, Ms. Karlsson
would have retired by the time of trial or within a year or so from now. That is
contrary to the factors I listed in paragraph 80 above. I also note that,
notwithstanding Ms. Karlssons evidence as to her future work intentions, she
was not cross examined by defence counsel on this point.
[91]
But I do not accept that the loss of future earning capacity should be
based, as the plaintiff suggests, on essentially 80% of full-time employment to
the age of 75.
[92]
In my view, there are a number of factors which militate against that
conclusion including an absence of evidence as to the number of women in their
late 60s and 70s who in fact have full or part-time careers with Sears at their
Lower Mainland stores. Ms. Gerber may well have been the appropriate person to
give this evidence which would have assisted in assessing the degree to which
fulltime employment to the mid-70s was a substantial and realistic possibility
for Ms. Karlsson.
[93]
There is also the fact that working four days a week was relatively new
for Ms. Karlsson as at the time of the Accident. A factor which is certainly in
the plaintiffs favour is that the Sears Metrotown store is being rebuilt and
is located a short distance away from her residence. It may have been suitable for
Ms. Karlssons lifestyle needs to continue working four days a week for a period
of time but that is not to say this would have continued to age 75.
[94]
While I have accepted that the plaintiff would have continued to work in
some capacity into her 70s that may well have been four days a week for a
period of time, to then be reduced to a lesser number of days per week to then
be reduced further to seasonal work only as she aged. I also recognize that Ms.
Karlsson may have worked to some extent after she turned 75 years old.
[95]
When I apply the principles to which I referred in Karim to the
factors and circumstances I have mentioned, and exercising my judgment as best
I can, I award the plaintiff $110,000 under this head of damages.
E: Cost of Future Care
[96]
Ms. Karlsson claims costs of $75,607 which are based on Ms. Berrys
assessment and calculated as follows:
Homemaking support/loss of homemaking capacity (two hours | $ 0,000.00 |
Psychological | $ 2,607.00 |
Community | $ 8,000.00 |
Transportation, | $ 5,000.00 |
Assessment for costs related to future surgery and the
| $30,000.00 |
Total: | $75,607.00
|
[97]
The key issues in dispute under this head of damages are the extent of
housekeeping and the need for psychological services.
[98]
I summarized the applicable principles in Karim at paras. 161-165.
Ms. Karlsson is entitled to compensation for the cost of future care based
on what is reasonably necessary to the extent possible to restore her to her condition
prior to the Accident. The award is based on what is reasonably necessary based
on the medical evidence to preserve and promote the plaintiff’s mental and
physical health. The test for determining the appropriate award under this
heading is an objective one: Gignac v. Insurance Corporation of British
Columbia (sub nom Gignac v. Rozylo), 2012 BCCA 351 at paras. 29-30; Tsalamandris
v. McLeod (sub nom Tsalamandris v. MacDonald), 2012 BCCA 239 at paras.
62-63.
[99]
Because of her fear and anxiety, Ms. Karlsson wishes to move to a quieter
community. Her injuries and disability will increase the cost of this move and
she will need some modest adaptations to her new home. I find it is likely that
Ms. Karlsson will move. She is entitled to the extra preparation costs related
to that move which result from the injuries sustained in the Accident.
[100] Insofar as
homemaking assistance is concerned, Dr. Winston recommended two hours once a month
and Ms. Berry two hours once a week. Ms. Karlsson’s family physician, Dr. Jo
Ling Foo in her report, dated July 30, 2012, recommended three hours of
housekeeping assistance per week.
[101] Ms. Berry
did not have Dr. Winstons report when she made her recommendations for
housekeeping assistance. While it is true that she observed Ms. Karlsson in her
home and Dr. Winston did not, there was also the evidence of Ms. Karlssons
sons on this issue. When I consider their observations regarding their mothers
housekeeping requirements, I am of the view they are more in keeping with Dr.
Winstons recommendation than Ms. Berrys on this point.
[102] Accordingly
I award the plaintiff $7,500 for loss of housekeeping capacity.
[103] As I have
noted, although Ms. Karlsson has no present intention to undergo additional
surgery, it remains a real and substantial possibility. As Dr. Regan has stated,
the plaintiffs shoulder condition is deteriorating. While Ms. Karlsson may not
have specifically felt a deterioration over the last two years or so, that may
well change which may cause her to reconsider the issue of surgery.
[104] I remain
of the view, however, that although the likelihood of surgery is real, it is
slight. Accordingly, I assess her costs of future care in relation to future
surgery to be $5,000.
[105] Insofar as
psychological services are concerned, I accept Ms. Karlssons evidence that she
still remains anxious and has certain ongoing psychological issues. It is true
that she stopped psychological treatment but, if funding is provided, I am
satisfied she will make use of it and that it will be of assistance in
improving her mental health. I award her $2,500 in that regard.
[106]
Accordingly, I award $28,000.00 for cost of future care calculated as
follows:
Homemaking support/loss of homemaking capacity | $ 7,500.00 |
Psychological treatment: | $ 2,500.00 |
Community | $ 8,000.00 |
Transportation, | $ 5,000.00 |
Assessment | $ 5,000.00 |
Total: | $28,000.00
|
F: Special Damages
[107] These are
agreed to in the amount of $27,631.88.
VI: CONCLUSIONS
[108] I award
the plaintiff the following:
Non-Pecuniary | $120,000.00 |
Past Loss | $ 60,235.91 |
Loss of | $110,000.00 |
Cost of | $ 28,000.00 |
Special | $ 27,631.88 |
Total: | $345,867.79
|
[109]
Subject to any factors pertaining to costs, which either party has leave
to bring to my attention, the plaintiff is awarded her costs at Scale B.
Abrioux J.