IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150813

Docket: S114911

Registry:
Vancouver

Between:

Sandra Starrett

Plaintiff

And

Kenneth Darcy
Campbell doing business as

Back in the Saddle
Again Horse Guiding,

and Cynthia Doe

Defendants

Before:
The Honourable Madam Justice S. Griffin

Reasons for Judgment

Introduction

[1]            
The plaintiff Sandra Starrett is suing the defendant Ken Darcy Campbell
for negligence. Mr. Campbell operates a horse-riding business, offering guided
trail rides to customers.

[2]            
On October 12, 2009, Ms. Starrett fell off a horse that
Mr. Campbell had rented to her. Ms. Starrett was on a trail ride led
by one of Mr. Campbell’s guides, Cynthia, whose last name is unknown.
There were two other guests on the ride that day and no other guides.

[3]            
Before the ride began, Ms. Starrett met with Mr. Campbell who
offered her one of any number of horses. She chose a horse named “Douggy”.
She asked for assistance mounting the horse and Mr. Campbell rendered that
assistance, providing counter-balance by holding the right stirrup while she
got up from the left.

[4]            
The ride was meant to take approximately two hours. At another guest’s
request, the group stopped for a break after close to an hour and dismounted.
In the course of Ms. Starrett trying to mount her horse before they re-started
the trail ride, she fell.

[5]            
How the accident happened, and whether the defendant is responsible in
some way, is a central issue in the case.

[6]            
The damages claim is also a significant issue in the case. The plaintiff
says that she suffered lasting injuries. She is in the fitness industry and she
claims she suffered a past loss of income, future loss of earning capacity,
future costs of care and special damages, as well as non-pecuniary losses. She
claims over $250,000 in damages.

[7]            
Ms. Starrett’s medical evidence is slim and her income has
increased since the accident.

Credibility

[8]            
I must pause before addressing the issues to comment briefly on
credibility and reliability.

[9]            
Ms. Starrett represented herself in the lawsuit. She was very
organised and seemed well aware of the requirements to prove her claim. She
appeared very smart and well-spoken. The plaintiff had a strong influence
over the content of the evidence she called, especially from family,
friends and co-workers.

[10]        
Unfortunately one of the problems
when a litigant represents herself is a lack of objectivity. I found that the
plaintiff’s presentation of her case was shaped very much by her perspective
that she should overstate facts that help her claim and downplay or ignore facts
that do not assist her claim.

[11]        
I did not find the plaintiff to be
a reliable witness. At times I also did not find her credible. I found her
perspective was quite skewed. Confronted by evidence which contradicted her own
version of events, she used the phrase “this is my truth” in closing
submissions, which I felt an accurate way of describing her view that reality
does not matter so much as her perception.

[12]        
I also observe that if evidence
necessary to prove the plaintiff’s claim was missing, I of course cannot simply
infer the evidence out of thin air. I am especially reluctant to infer that
missing evidence was a mere oversight as opposed to a calculated choice given
the problems with reliability that I have noted above.

[13]        
Mr. Campbell also represented
himself in the lawsuit.

[14]        
As for Mr. Campbell’s
credibility, his demeanour in the courtroom was slightly reticent. I did not
find him to overstate or exaggerate. He did not take issue with minor matters.
I found him to be a reliable and credible witness.

Negligence

[15]        
I will first deal with the
question of whether the defendant was negligent.

[16]        
There is no question that the
defendant owed the plaintiff a duty of care, as he was renting horses and
providing guided trail rides to members of the public and there are foreseeable
risks in such activity: Dwyer v. Douglas Lake Cattle Company, 2003 BCSC
1413 at paras. 22-23; Saari v. Sunshine Riding Academy Ltd. (1967),
[1968] 65 D.L.R. (2d) 92 at 97-98 (Man. Q.B.). There is also no question that
Cynthia was working for him and presented to guests as his employee, and thus
he is responsible for her actions if she was negligent as well: Bazley v.
Curry, [1999] 2 S.C.R. 534 at para. 10; K.L.B. v. British
Columbia, 2003 SCC 51 at para. 19.

[17]        
While there is a dispute on the
evidence as to what Mr. Campbell and Ms. Starrett said to each other
about Ms. Starrett’s abilities and the suitability of the horse before the
ride began, there was no evidence that the guide Cynthia was part of this
discussion. Mr. Campbell did not accompany the guests on the trail ride
that day; the only guide was Cynthia.

[18]        
Cynthia’s experience and training
as a guide is unknown. She had rented horses from Mr. Campbell before, and
had asked to exchange her services as a guide in exchange for being allowed to
ride.

[19]        
Ms. Starrett explained at
trial that she had considerable experience riding horses when she was in the
age range of her teens until she was 20. After this, she rode on occasion.
Her last time riding before the accident in 2009 was on a family vacation to
the Sundance Ranch in BC in 2006. There she was considered to have enough
skill to be allowed to canter the horse.

[20]        
Mr. Campbell says that
Ms. Starrett explained this riding experience to him. He thinks she said
her last experience riding was two years before, at Sundance Ranch, but he
could not be sure of the timing. In any event, the evidence makes it clear that
he knew that she was not a recent regular rider but had past experience.

[21]        
Ms. Starrett admits that when
asked what horse she wanted, she chose the one she ended up on, called Douggy.

[22]        
Mr. Campbell and
Ms. Starrett disagree as to what was said before Ms. Starrett chose
Douggy to ride.

[23]        
Mr. Campbell says that he told
Ms. Starrett that Douggy was well-trained, very sensitive with leg cues,
very athletic, that he does nothing bad but he is quick. He said he told her
the horse was fine for anyone, but the rider has to never relax on him. He
says that Ms. Starrett said she always wanted to ride a horse like that.

[24]        
Mr. Campbell says she told
him that she was a fitness trainer. He saw her interact with the horse, petting
it, and from her description of past riding experience and fitness, he
concluded that she would be fit enough to ride the horse.

[25]        
Ms. Starrett downplays her
role in choosing the horse and says she chose him because he appeared to her to
be the largest horse. I prefer Mr. Campbell’s version of their discussion.

[26]        
Ms. Starrett admits that
Mr. Campbell told her it was a cutting horse. I am satisfied that she was
told and understood that this meant that the horse was a sensitive horse
requiring a higher skill level than a mere beginner rider, and that she felt
confident enough with her abilities to think this was an appropriate horse for
her to ride.

[27]        
Ms. Starrett presents herself
as a very confident, capable person with a quick mind and a sharp eye for
detail and with a forceful personality. Mr. Campbell, on the other hand,
presents as a laid-back man who does not readily take issue. I have
little doubt that Ms. Starrett expressed a strong preference for
Douggy based on Mr. Campbell’s description of the horse, and
Mr. Campbell sought to please her by allowing her to ride the horse.

[28]        
What is more relevant than what
was said at the time Ms. Starrett chose the horse is what happened when
Ms. Starrett went to mount the horse. Whatever was said between
Mr. Campbell and Ms. Starrett before she chose the horse,
Mr. Campbell saw that she was not capable of getting on the horse by
herself and needed assistance.

[29]        
Mr. Campbell testified that
he held the reins and right stirrup of the saddle to counterbalance when
Ms. Starrett went to mount the horse. He testified that he was really
surprised at how sloppy she was, that it took her two or three attempts,
bouncing, to get on while her full weight was hanging in the left stirrup.
Mr. Campbell said that the horse had to side step a little and brace a bit
to catch his balance.

[30]        
Mr. Campbell conceded that
Ms. Starrett looked nervous once she was mounted on the horse and she
asked if the horse was okay. He told her that the horse was fine if she knew
how to ride. After that the group led by Cynthia left on the trail ride
and Mr. Campbell stayed behind.

[31]        
Mr. Campbell testified that
the trail is a low flat easy trail. The group went out on the ride and
during the ride Ms. Starrett was confident enough to canter the horse,
which was a more advanced pace than the other two guests felt comfortable
trying. Mr. Campbell’s assessment that she could ride the horse was
correct.

[32]        
However, it was not the trail-riding
that caused Ms. Starrett difficulty; it was getting on the horse.

[33]        
Mr. Campbell conceded in
cross-examination that sometimes groups will dismount during a ride, although
this is not a regular thing.

[34]        
I find that it was reasonably
foreseeable to Mr. Campbell that the group might stop during the ride and
dismount, and that Ms. Starrett could have difficulty again in getting on
the horse. Given that the horse moved a little the first time she got on the
horse, even with someone holding the horse and providing counter-balance, it
was foreseeable that this could happen again.

[35]        
Mr. Campbell’s position seems
to suggest that Ms. Starrett was responsible for getting off the horse
mid-ride, thus putting herself in a position where she would need to mount the
horse again. However, there is no evidence that anyone cautioned
Ms. Starrett to stay on the horse, warned her that there were greater
risks if she dismounted and tried to mount it again, or told the guide
Cynthia that Ms. Starrett might have an awkward time re-mounting.

[36]        
Ms. Starrett was simply
following what others on the ride were doing, in taking a break from the ride.
Ms. Starrett had required assistance in getting on the horse before the
ride began, and this was provided by Mr. Campbell. It was reasonable for
her to think that Cynthia could provide her with similar assistance, and she
had no reason to expect that she was in danger by simply mounting the horse
with assistance.

[37]        
The evidence of the plaintiff is
that she asked Cynthia to assist her in mounting the horse after they had taken
a break from riding, and then after providing counter-balance by holding onto
the right stirrup, Cynthia inexplicably let go, and the horse took off before
Ms. Starrett had completed the mount.

[38]        
The guide Cynthia was not called
by either party as a witness. Mr. Campbell said that she no longer
provides trail guide services for him and he does not have an active phone
number for her, that he understands she has moved and he has not been able to
locate her.

[39]        
Ms. Starrett provides other
details, suggesting that when the guide let go of the right stirrup it banged
the horse and caused it to run. Ms. Starrett does not claim to have seen
this happen, but says she felt the vibration in the saddle. I find this
evidence difficult to believe. Ms. Starrett was hauling herself up on to
the horse and from her physical illustrations during her evidence, she was
mid-way up when this happened. She would have been concentrating on completing
the mount. I have a hard time accepting that a stirrup hitting the horse
would create a vibration she could detect and remember in the split second
before she says the horse took off.

[40]        
Ms. Starrett testified that when
she was mid-mount, with her left foot in the left stirrup, the horse bolted
forward at a gallop; she balanced on her left leg in the stirrup (she
demonstrated this in court) but her right leg carried her too far to the right
and she fell off the horse on the right, landing on her right side.

[41]        
Rose Balderson, another guest on
the trail ride that day, was called as a witness by Mr. Campbell.

[42]        
Ms. Balderson testified that
after the group finished their mid-trail ride break, she was remounted and
sitting on her horse, looking straight at the left side of Ms. Starrett’s
horse, when Ms. Starrett was trying to re-mount her own horse. She saw the
guide holding the reins of Ms. Starrett’s horse, tight and close to the
head of the horse with both hands. Ms. Starrett had one hand on the
saddle horn and was jumping a little bit and was having trouble getting her
foot in the left stirrup. The guide reached out with one hand to try to
help her with the left stirrup. She had the impression that Ms. Starrett
must have poked the horse with her foot because the horse jumped, and then her
other foot slipped out from under her and she fell, on the left side of
the horse, the same side from where she was trying to mount. This startled
the horse even more and it started to move and back away with Ms. Starrett’s
foot in the stirrup, before it stopped.

[43]        
Mr. Campbell argues that
Ms. Starrett’s evidence at trial that she fell on the right side of
the horse makes no sense, if one reconstructs the accident as described by
Ms. Starrett. He argues that it seems more likely that with
Ms. Starrett anchored on the left of the horse and the horse moving
forward, that these motions would cause her to fall back on the left side of
the horse. Further, according to her the guide was on the right of the horse
and so, if she fell on the right, she would have fallen on the guide.

[44]        
Mr. Campbell has a point.
Ms. Starrett’s story does seem embellished to me, describing herself as
standing on her left leg only while the horse was galloping, but still being
able to swing her right leg over and then falling to the right. This suggests a
physical prowess that is belied by the difficulty she was having in mounting
the horse.

[45]        
Ms. Starrett says that
Ms. Balderson’s evidence should be rejected.

[46]        
There are some problems with
Ms. Balderson’s evidence. Her recollection of whether she saw
Ms. Starrett’s foot poke the horse seems to me to be somewhat fuzzy and I
was left wondering whether she was extrapolating from the fact that the horse
jumped as opposed to actually seeing the poke. Also, when she was asked to give
time estimates, she suggested that Ms. Starrett’s foot could have been in
the stirrup after the fall for a minute; and that the whole thing from the
start to end could have taken two minutes. It is unlikely the events took that
long to unfold.

[47]        
But many witnesses are not good
estimators of short periods of time and Ms. Balderson did express
uncertainty on the timing.

[48]        
Ms. Balderson was not
distracted by anything else and had a clear line of sight of
Ms. Starrett. The event was quite unusual and so likely to stay in her
memory. She has no motive to tell anything but the truth.

[49]        
With the exception of her evidence
as to the foot poke and timing, I prefer Ms. Balderson’s evidence as to
how the fall happened and as to what the guide was doing at the time as
compared to Ms. Starrett’s evidence.

[50]        
I find that the fall occurred
while the plaintiff was trying to mount the horse and the horse moved and the
plaintiff fell on the ground, on the left side of the horse. The guide
Cynthia was unable to assist Ms. Starrett in completing a safe mount.

[51]        
The plaintiff called as an expert
witness Susan Thompson, who is a very experienced riding instructor, riding
coach, and evaluator with Equine Canada and a member of the Horse Council of
BC. Her evidence went to the issue of the standard of care.

[52]        
Ms. Thompson was an
objective, credible witness whose evidence I accept.

[53]        
Ms. Thompson explained that trail-riding
guests should not be allowed to choose a horse. Many trail-riding guests
overstate their experience. The horse operator should be able to observe the
guest and assign a suitable horse for the guest.

[54]        
Ms. Thompson gave the opinion
that a horse used for public trail rides should not spook easily. A horse
used for the trail-riding public should not be “flighty”. She would define as
flighty a horse that takes off during mounting, unless there is something
unusual like a sudden loud noise. She explained that a cutting horse is
generally sensitive and may not be suitable for the public to trail-ride.

[55]        
This evidence is very general and
Ms. Thompson has never seen the horse Douggy, so does not know if he is
too sensitive to be loaned to trail-riding guests. Mr. Campbell called as
a witness Ricky Cox, who has ridden Douggy hundreds of times. Mr. Cox said
that Douggy is a good horse, very well-trained and responsive, and he has
purchased him from Mr. Campbell. Mr. Cox allows his 12-year-old daughter
to ride Douggy, although her level of horse-riding experience was not
explained.

[56]        
Mr. Campbell’s theory of what
happened is that Ms. Starrett slipped and poked the horse with her
toe when getting on, and that is what startled it. Mr. Campbell’s view of
it is that horses are trained to move when kicked, and so Ms. Starrett
is at fault for the horse moving.

[57]        
Regardless, Ms. Thompson’s
evidence was that it is not uncommon for riders to poke horses with their feet
when mounting, and that horses of a calm nature are quite used to that
happening.

[58]        
Ms. Thompson explained that
mounting a horse is one of the riskiest parts of riding.

[59]        
This is consistent with the
evidence of Mr. Cox who sometimes takes Mr. Campbell’s customers out
on trail rides. He said in evidence that he does not want people to get on and
off mid-trail ride, because if they are inexperienced it can cause problems.

[60]        
As I see it, Mr. Campbell was
aware that the plaintiff was not capable of mounting the horse without
assistance; he was also aware that the horse was sensitive, so ought to have
foreseen that a struggling attempt to mount the horse could cause it to startle
or move. There is no evidence that he did anything to inform the guide of these
facts, to caution Ms. Starrett that she should not dismount during the
trail ride, or to ensure for himself that the guide was capable of providing
assistance to Ms. Starrett if she had to mount the horse again during the
outing.

[61]        
The guide Cynthia either knew or
ought to have been informed about the nature of the horse Douggy, as a
sensitive horse.

[62]        
It is reasonably foreseeable that
a guest of a trail-riding outfit, who might need assistance in mounting a
horse, could fall off the horse if the horse starts to move quickly mid-mount.
It seems fairly basic that the operator of the trail-riding outfit would need
to train staff to be able to provide for a safe mount.

[63]        
As a matter of common sense, once
the guest asked for help mounting the horse, and knowing nothing about her
abilities, the guide Cynthia ought to have known that the horse could be at
risk of moving when being mounted. Cynthia ought to have known that there is a
risk of a guest falling when mounting if the horse moves, and been capable of
holding the horse or ought to have declined to assist the guest and called back
to Mr. Campbell by her cell phone to ask him to come and give
additional assistance. She did neither. I find that she provided inadequate
assistance, putting Ms. Starrett at risk of falling when mounting the
horse.

[64]        
I have concluded that
Mr. Campbell was negligent and breached a duty of care he owed to
Ms. Starrett in:

1. assigning
or allowing Ms. Starrett to rent a horse that was too sensitive and unsafe
for her to mount, given her demonstrated need for assistance mounting the horse
and the possibility that she might need to mount the horse again;

2. not
warning the guide Cynthia or Ms. Starrett that it would be best to avoid
Ms. Starrett dismounting during the ride;

3. failing to
ensure that his guide Cynthia knew how to provide safe assistance to
Ms. Starrett if she needed to mount the horse during the trail ride; and

4. failing to
provide the necessary assistance (through Cynthia) to allow Ms. Starrett
to re-mount the horse safely once on the trail ride.

[65]        
The plaintiff has therefore
established that Mr. Campbell is liable for damages caused by his
negligence.

Injuries

[66]        
The next issue is what injuries
were caused by the accident.

[67]        
The plaintiff must show that but
for the accident, she would not have suffered the injuries she claims. This
causation test is set out in Clements v. Clements, 2012 SCC 32 at
para. 8:

[8] The test for showing
causation is the “but for” test. The plaintiff must show on a balance of
probabilities that “but for” the defendant’s negligent act, the injury would
not have occurred. Inherent in the phrase “but for” is the requirement that the
defendant’s negligence was necessary to bring about the injury ―
in other words that the injury would not have occurred without the defendant’s
negligence. This is a factual inquiry. If the plaintiff does not establish this
on a balance of probabilities, having regard to all the evidence, her action
against the defendant fails.

[68]        
To support her claim that she
suffered injuries from her fall, the plaintiff called evidence from the
following sources:

a)    herself, fitness colleagues and her son;

b)    the written medical opinions of a family doctor,
Dr. Bryan Norton; and

c)     the written opinion of a functional capacity
evaluator, Bruce Hunt, and his oral testimony.

[69]        
While the plaintiff filed some
clinical records and the defendant did not oppose her doing so, the opinions in
these records were not admissible for the truth of them. The plaintiff
knew this before trial because she signed a document agreement to this effect.
She also demonstrated her knowledge of the rules regarding expert opinion
evidence during trial.

[70]        
I will address the plaintiff’s
sources of evidence in turn.

Non-Medical
Evidence of Injuries

[71]        
At trial, the plaintiff provided
very little detail in her testimony as to the precise nature of her injuries.
Her main complaints seemed to be:

a)    she was in immediate pain after the accident, in her
right hip and sacroiliac joint area, so much so that she needed to get crutches
to help her move around for two weeks;

b)    she has instability in her right hip and so cannot
jump or stand on one leg as well as she used to pre-accident;

c)     if she pursues too many fitness activities, her
unspecified injuries flare up and so she has had to participate in less fitness
activities than she otherwise would do; and

d)    she cannot ski.

[72]        
There is also the evidence of the
nature of the fall itself. Ms. Starrett testified that she weighed
approximately 210 pounds at the time. The evidence is clear that she did fall
trying to mount the horse. This would be expected to have some impact on the
body.

[73]        
Despite having some misgivings
about Ms. Starrett’s evidence regarding the precise mechanics of the fall,
I do accept her evidence that for a period afterwards she felt quite sore and had
pain on her right side around her right hip and sacroiliac joint.

[74]        
Much of the evidence called by the
plaintiff as to her pre-accident and post-accident fitness was very vague and
general. I gained the impression this was deliberate.

[75]        
Ms. Starrett claimed that her
injuries meant that she had to pass up on teaching as many fitness classes as
she otherwise would have done. However, she admitted that she continued
other fitness activities, including teaching fitness instructors how to
instruct.

[76]        
The plaintiff called as a witness
Carol McLean. Ms. McLean was the fitness and aquatics coordinator at
Hollyburn Country Club in the years 1998 to 2011. She was familiar with
Ms. Starrett working as a substitute fitness teacher, teaching aquafit
classes there perhaps once or twice per month over the years. She testified
that Ms. Starrett was offered a contract with Hollyburn starting in the
fall of 2010 (one year after the horse-riding incident) to teach three aquatics
fitness classes a week for three 12-week sessions and that Ms. Starrett
started the contract but ended up quitting.

[77]        
Ms. McLean’s evidence was
that on some occasion or occasions after the accident she saw in passing
Ms. Starrett teach an aquatics class and felt she was not getting in and
out of the pool with the same ease as she had prior to the accident. No date
was put on this but she might have been referring to the fall of 2010 given the
evidence that Ms. Starrett started a contract then and the fact that
Ms. McClean stopped working at Hollyburn sometime in 2011.

[78]        
Also, no specifics were given as
to whether the problem which seemed to cause the plaintiff less ease
getting out of the pool was with arm or shoulder strength, leg or knee strength,
or something else.

[79]        
It is impossible to conclude that
this “less ease” in getting in and out of the pool was caused by the horse-riding
accident or that it is anything material.

[80]        
Daniel Godfrey was another witness
called by the plaintiff.

[81]        
In October 2009, he worked with
the District of West Vancouver, Aquatic Centre (“WVAC”), responsible for
scheduling aquatic fitness classes at the pool. He had been employed there
since 2005 and was familiar with the plaintiff working there as a fitness
instructor who taught fitness classes, and as a fitness leader who taught other
fitness instructors how to teach.

[82]        
Prior to the fall of 2009, the plaintiff
was only a substitute fitness teacher at the WVAC. Mr. Godfrey did not see
her teach an entire class, but did walk by on occasion and testified that she
was a standard aquafitness instructor. He said that he saw that
Ms. Starrett demonstrated the fitness moves on the pool deck, rather than
teaching from the water, although some instructors do both. This evidence
supports the conclusion that it is not necessary for an aquafit instructor to
demonstrate in the water and get in and out of the pool.

[83]        
In the fall of 2009, Ms. Starrett
became a more regularly-scheduled teacher, teaching four classes per week, each
one hour long, namely two Parent and Tot Aquatic Fitness classes and two Boot
Camp Aquatic Fitness classes. These were new courses being offered by the WVAC.

[84]        
Mr. Godfrey’s evidence was
that Ms. Starrett missed eight weeks of classes she was scheduled to
teach between October and December 2009, totaling 32 classes.

[85]        
Ms. Starrett was very leading
in her questions to Mr. Godfrey. She told Mr. Godfrey that she tried
to return to teaching in 2010 but could not maintain it and “had to give
[it] up”. He did not elaborate on this in his oral evidence nor would he have
first-hand knowledge as to the reasons she might turn down an opportunity to
teach a fitness class. (Below I will touch on the fact that Ms. Starrett
avoided addressing in evidence references in the medical records to her having
an appendectomy, which was likely in 2010.)

[86]        
Ms. Starrett asked
Mr. Godfrey if he has seen her teaching from 2010 to present, and if
so, to recount any differences that he has noticed. He said the biggest
difference was that she does not demonstrate rebound moves anymore, meaning
jumping. Instead, she always has one foot on the ground. However, importantly,
he said she is still able to demonstrate the move in this manner.

[87]        
The time-frame of
Mr. Godfrey’s observation, as recent as the present, could suggest
other causes for Ms. Starrett’s decision not to do rebound moves. Further,
his evidence supports a conclusion that from his observations,
Ms. Starrett found ways of compensating for any deficiency in her jumping ability
that did not affect her teaching.

[88]        
Mr. Godfrey was asked in
cross-examination why Ms. Starrett was not on contract now, as opposed to
just doing substitute fitness teaching. He explained that they closed the
previous programs they had her teaching and so those options are not available
for her to teach.

[89]        
The plaintiff called another
colleague as a witness, Michael Atkinson. He described the fact that he has
known the plaintiff as a fitness instructor since 1991. They have attended
conferences together, and he has assisted her in facilitating courses. He
agreed that Ms. Starrett was a mentor to him in helping him be a presenter
at conferences in his early years as an instructor which seemed to be in the
early or mid-90s. He clearly had great affection for her and as such I cannot
consider his evidence to be entirely objective although I have no question that
he was sincere.

[90]        
The plaintiff asked
Mr. Atkinson to describe her fitness level over the 18 years he knew her
from 1991 to 2009. He described her as completely mobile, fit, healthy, active
and stable.

[91]        
This evidence was very general
covering a large time period. I did not know from the evidence whether
Mr. Atkinson saw much of Ms. Starrett after she married and had
children, or was relating what he knew of her when they were much younger. In
cross-examination he agreed that he was not aware of the plaintiff teaching
fitness in the six months prior to the 2009 accident. This calls into question
the time-frame of when he last saw her teaching fitness before the accident.

[92]        
The plaintiff then asked
Mr. Atkinson to describe her ability since 2009. Mr. Atkinson said
that he does not see her participating as much in active sessions, that she has
less mobility, less stability, and she needs to show lower impact moves and he
will show the higher impact or higher intensity moves when they co-present. He
also said that he has witnessed her having some degree of pain or discomfort at
the end of a session.

[93]        
There was no precise time-frame
put on this. I did not know whether Mr. Atkinson was describing recent
years or just after the accident. I did not know what part of the body appears
to be favoured by Ms. Starrett or appears to cause her pain.

[94]        
Mr. Atkinson admitted in
cross-examination that Ms. Starrett appears about 30 pounds heavier now
than she was prior to the accident. I note that this seems consistent with the
fact that the plaintiff estimated her weight to be 210 pounds at the time of
the accident, and her expert Bruce Hunt reported her weight at the time of his
assessment on September 2, 2014, to be 240 pounds.

[95]        
Mr. Atkinson agreed that one
can teach aquatic fitness by just demonstrating low impact movements, but he
said that because there is a mix of clients, most of the time you will need to
mix anchored moves with rebound and bounce. He commented that Ms. Starrett
always ensures she has proper footwear and mats on the pool deck. He
admitted knowing that she tore her ACL and agreed that it is a serious
injury. He was aware that she was in a car accident.

[96]        
Mr. Atkinson explained that
teaching fitness puts a lot of strain on the body, especially if doing two
classes or more. He said it requires a lot of repetition, although the instructor
does not demonstrate every single repetition.

[97]        
The other former colleague that
Ms. Starrett called as a witness was Brenlee Rempel. Ms. Rempel
also described Ms. Starrett as a mentor, and it was clear from her
demeanour (including an emotional episode where she choked up) that she admires
and feels very indebted to Ms. Starrett. Again, I do not doubt the
sincerity of the evidence but I do consider that it is not entirely objective.

[98]        
Ms. Rempel is a fitness
instructor who has known the plaintiff since 1993. She has received
training to be an aquatic fitness instructor from the plaintiff.

[99]        
The plaintiff asked
Ms. Rempel to describe the plaintiff’s activity level from 1993 to 2009.
Ms. Rempel described her as high energy through an hour or an hour and a half
class.

[100]     Unfortunately, like the evidence of Mr. Atkinson,
these questions and answers were very general. Ms. Starrett did not
establish that these witnesses had seen her perform repeated fitness classes in
the time period just before the accident. On the plaintiff’s own evidence, she
was not doing a lot of fitness-instructing before the accident because her
children were young.

[101]     Ms. Rempel agreed in cross-examination that a fit
person should be able to step up two or three feet. The defendant suggests this
raises the obvious question, why did the plaintiff have so much trouble
mounting the horse if she was as fit at the time of the accident as she claims
to have been?

[102]     In cross-examination Ms. Rempel admitted that she
did not know if the plaintiff took time off from teaching fitness when she had
her ACL injury. On the plaintiff’s evidence, she did take time off in 2008 and
2009. This brings into question how much Ms. Rempel really knew about the
plaintiff’s level of fitness right before the horse-riding accident.

[103]     Ms. Rempel was asked to describe what it was like
to work with the plaintiff since the horse-riding accident in October 2009. She
said that she works with the plaintiff at fitness conferences that the
plaintiff puts on and co-teaches with her, and that the plaintiff’s
fitness has changed. She said that because the plaintiff cannot do proper
range of motion or movements, Ms. Rempel, “being able-bodied”, will
demonstrate these.

[104]     Describing herself as “able-bodied” in contrast to
Ms. Starrett is meant logically to suggest that Ms. Starrett is not
able-bodied. This is quite an overstatement and shows in my view
Ms. Rempel’s lack of objectivity. It is admirable that Ms. Starrett
has such a loyal following but it was not compelling evidence.

[105]     Ms. Rempel did not explain what part of the
plaintiff’s body she has witnessed having limited range of motion. I do not
know from this evidence whether, for example, it is the plaintiff’s shoulder or
neck or right leg (where the ACL injury was) and not her right hip.

[106]     Ms. Rempel agreed in cross-examination that the
movements on the pool deck are stressful, whether or not the instructor is
injured. She volunteered that these movements can put one’s neck out.

[107]     The physiotherapy medical records which were
introduced in evidence, many of which are illegible, suggest that
Ms. Starrett has recurrent problems with her neck. Ms. Starrett did
not seem to claim in her testimony that the accident caused her neck problems.
If she did have neck problems the causes are unknown.

[108]     Ms. Rempel did confirm that a good aquatic
fitness instructor, demonstrating to a class on the pool deck, will be required
to use rebound movements and balance on one leg. The instructor will need to
move slowly through demonstrations and will need to be strong.

[109]     Ms. Rempel knew that the plaintiff had a car
accident but understandably declined to give evidence on how whiplash injuries
might affect one’s ability to perform deck moves as an aquafit instructor.

[110]     In addition to calling evidence regarding an alleged
diminished capacity to teach aquatic fitness classes, Ms. Starrett
testified that she had to reduce her activities with her family due to her
injuries from the horse-riding accident. She was once again very conclusory
and general in this evidence.

[111]     Ms. Starrett also relied on the evidence of her
19-year-old son, known as Skylar. It was obvious that Skylar admires and loves
his mother and cannot be considered a truly independent and objective witness.
Indeed, it seemed to me that the opposite was true, and that out of his
fidelity to her he was trying a little too hard to help his mother prove that
the accident caused her significant injuries.

[112]     As one example, Ms. Starrett and her son each
testified that because of her injuries, she has been unable to watch her
son compete in snowboarding competitions. The reason for this is because the
events are held mid-mountain and it would require the plaintiff to
ski from the top of the lift to watch the event.

[113]     The plaintiff admitted in cross-examination that
post-accident, she hikes the “Grouse Grind” and for an undefined period of time
was hiking it once per week until she got too busy with work activities. When
the defendant asked Skylar which was more difficult, hiking the Grouse Grind or
skiing from a lift to watch a snowboard race, Skylar was adamant that skiing
was much more rigorous. He then went on at length about how difficult and
exhausting skiing is and how much he is exhausted after skiing from the peak of
Whistler-Blackcomb to the valley, so much so that he has to stop to take a
break.

[114]     With respect, Skylar is on the provincial snowboarding
team. I very much doubt that if he was to snowboard or ski an intermediate run
from the top of a lift to the middle of a slope where a snowboard event was
being held, that this would be “exhausting”.

[115]     There was no medical evidence to suggest that the
plaintiff could not ski or, if this was so, it was due to the horse-riding
accident as opposed to another cause, such as the right ACL injury.
Ms. Starrett’s and her son’s insistence that the injuries left her so that
she cannot participate in skiing even so much as to watch her son’s events struck
me as gross exaggeration.

[116]     Perhaps I might find it a little easier to accept had Ms. Starrett
testified that she was an expert skier once, and does not get the same
enjoyment from skiing a full day as she once did because it exacerbates her hip
pain, and so is more likely to miss out on watching her son’s events since she
is not going to buy a ski pass just to watch a snowboard event. As the evidence
was given, however, I did not accept that the injuries caused by the
accident physically prevent her from skiing from a lift on a ski hill to
the location of her son’s snowboarding events.

[117]     I also note that this was an example of the inexact
evidence called by the plaintiff. How many snowboarding events has she missed? How
many were missed because she was working? How many were missed because the
events are out of town? The lack of supporting detail of what appears to be an
exaggerated assertion troubles me and was a problem with much of the
plaintiff’s presentation of evidence.

[118]     I return to the plaintiff’s evidence as to the effect
of her injuries. She claims she was in a lot of pain and used crutches to
assist her walking for about two weeks before she was mobile. She says she
could not do housework or make meals during that time.

[119]     Ms. Starrett says that she did not go back to
teaching fitness for three months, took Tylenol and had difficulty sleeping
during this time. She found that she had limited and painful range of motion
and she was getting a lot of physiotherapy and massage therapy. She states that
she became stressed about not being able to work at full capacity and needed
money for her therapies because otherwise she could not afford them.

[120]     Ms. Starrett says that she returned to teaching
fitness but hired subcontractors to help teach.

[121]     Ms. Starrett explained that prior to the
accident, she was very involved in exercising with her family, whether it be
skiing or hiking. After the accident, she found that she could not participate
as fully as she used to, because the demands of her work took too much out
of her.

[122]     Ms. Starrett says that if she does more than two
fitness training sessions a week, it is hard to do all the activities she likes
to do in her personal life, like playing volleyball once a week (although
records she introduced suggest she has returned to playing volleyball once per
week).

[123]     I also cannot help but question the plaintiff’s broad
general complaint that she is missing out on family time with her sons and
husband, because she cannot participate to the same extent she used to do, due
to her injuries. Common experience raises the equally plausible inference that
because her sons are now no longer children they have surpassed their mom’s athletic
abilities and have their own interests.

[124]     The plaintiff also complains that she has gained
weight since the accident, however, no medical evidence has attributed the
weight gain to the accident.

[125]     The implication that somehow the accident has led the
plaintiff to engage in less exercise activity is hard to accept.

[126]     She was 43 years old at the time of the accident and
is now 49 years old.

[127]     In the plaintiff’s evidence as to her state of mind
when she asked for assistance in mounting the horse on the day of the accident,
she used the phrase “not being as young as I used to be, I prefer to be safe”.
Exactly: the plaintiff is not as young as she used to be. Furthermore, she has
increased the amount of time she does fitness-related teaching compared to
before the accident. Without more detailed evidence, it is difficult to
conclude that the accident is to blame for some changes in her fitness activity
levels which could equally be a natural consequence of aging, working more
hours, weight gain, or her other injuries.

[128]     I turn next to the medical evidence.

Evidence of
Dr. Bryan Norton

[129]     The only admissible medical opinion evidence was that
of the plaintiff’s family doctor, Dr. Bryan Norton. His opinions were
tendered by way of reports dated August 8, 2011, November 5, 2013, and
September 5, 2014.

[130]     The defendant did not challenge the opinion or
qualifications of Dr. Norton or call any contrary medical evidence.
Nevertheless, the plaintiff has the burden of proof.

[131]     Dr. Norton’s August 8, 2011 report states that
the injuries occurred when the plaintiff fell from a horse and landed on her
right hip, right knee and forearms. Leaving aside the fact that this is not
exactly how the plaintiff described her fall (she said she was in a fetal
position, falling on her right side), he states that the plaintiff suffered the
following injuries caused by the horse-riding accident:

a)    bruising left forearm, right elbow and both knees;

b)    strained muscles right neck and lower back;

c)     strained right sacroiliac joint;

d)    strained right hip joint;

e)    contusion right posterior ribs;

f)     
strained right ankle; and

g)    pain in her left heel following the accident as a
result of taking more weight on that side.

[132]     In his November 5, 2013 report, Dr. Norton notes
that there were no fractures and no signs of neurological injury. He states
that the main injury has been a strain of her right sacroiliac joint and
partial tearing of the right gluteus medius muscle. He notes that in
November 2009 she reported being back to jogging and gardening but that she
claimed these activities aggravated her lower back. He states that by February
2010 she had resumed teaching fitness classes but “only” two classes per week;
and was playing volleyball which aggravated her pain. He states she had
unrelated surgery in March 2010 that increased her pain. He states that she now
(November 2013) reports a definite increase in her capacity to do “more intense
exercise” and she now hikes the Grouse Grind and plays volleyball once a week
each.

[133]     The plaintiff neither confirmed nor denied the
activities reported in Dr. Norton’s letter.

[134]     As for prognosis, Dr. Norton mentions in his
report of November 5, 2013 that there have been some improvements after
treatments, and he feels she can make a full recovery. He refers to various
therapies she has taken and states that she needs to continue with
physiotherapy to maintain the gains she has made. However, he defers to the
physiotherapist as to how long this might be needed.

[135]     Dr. Norton’s opinion reports do not clearly say
what information or testing he is relying on to reach the opinions he
does. I do not know if he is relying on other medical experts, whose
qualifications supersede his own and who did not provide expert opinion
reports, and whether or not these other physicians hold the opinions that the
accident caused the plaintiff’s injuries, or that she has recovered from these
injuries or that the injuries are very minor. I do not know to what extent he
has relied on the plaintiff’s self-reporting, rather than conducting specific
tests of his own.

[136]     While an expert may reference hearsay evidence in an
expert report, it is important to know the source of that evidence in order to
properly weigh the expert’s opinion. In Mazur v. Lucas, 2010 BCCA 473,
the Court of Appeal held at para. 40:

[40] From these authorities, I
would summarize the law on this question as to the admissibility of expert
reports containing hearsay evidence as follows:

·       
An expert witness may rely on a
variety of sources and resources in opining on the question posed to him. These
may include his own intellectual resources, observations or tests, as well as
his review of other experts’ observations and opinions, research and treatises,
information from others – this list is not exhaustive. (See Bryant, The Law
of Evidence in Canada, at 834-835)

·       
An expert may rely on hearsay. One
common example in a personal injury context would be the observations of a
radiologist contained in an x-ray report. Another physician may consider it
unnecessary to view the actual x-ray himself, preferring to rely on the radiologist’s
report.

·       
The weight the trier of fact
ultimately places on the opinion of the expert may depend on the degree to
which the underlying assumptions have been proven by other admissible evidence.
The weight of the expert opinion may also depend on the reliability of the
hearsay, where that hearsay is not proven by other admissible evidence. Where
the hearsay evidence (such as the opinion of other physicians) is an accepted
means of decision making within that expert’s expertise, the hearsay may have greater
reliability.

·       
The correct judicial response to
the question of the admissibility of hearsay evidence in an expert opinion is
not to withdraw the evidence from the trier of fact unless, of course, there
are some other factors at play such that it will be prejudicial to one party,
but rather to address the weight of the opinion and the reliability of the
hearsay in an appropriate self-instruction or instruction to a jury.

[137]     Dr. Norton’s report of September 5, 2014 mentions
that the plaintiff was involved in a motor vehicle accident which aggravated
her previous injuries and caused neck strain. The date of the motor vehicle
accident is not mentioned. He states that her condition has not changed
significantly and in this regard he appears to rely on the plaintiff’s
reporting to him that activities involving high stepping are painful and her
exercise tolerance has not returned to normal, which I take to mean her
pre-accident levels. He mentions another expert’s consultation report, that of
Dr. Bovard, but does not state whether he agrees with it or not.

[138]     Dr. Bovard’s medical opinions were not served as
expert reports and so cannot be relied upon for the truth of the opinions,
pursuant to the document agreement the plaintiff entered into evidence.

[139]     Dr. Norton’s evidence as to prognosis in the
September 5, 2014 report is equivocal. What is meant by suggesting that the
plaintiff’s condition has not changed significantly, does this include his
earlier prognosis that she can make a full recovery, and is still able to teach
fitness twice per week and do the Grouse Grind and play volleyball once per
week? Why is it that his report only mentions what the plaintiff has told him
and Dr. Bovard’s opinions, instead of referring to any examination or
testing done by Dr. Norton? Again, it is difficult to give much weight to
this opinion without knowing the reliability of the underlying assumptions.

[140]     In terms of prognosis, Dr. Norton’s report of
September 5, 2014 is not sufficient to persuade me on a balance of
probabilities that any injuries caused by the fall from the horse have left the
plaintiff with permanent injuries that will have a meaningful impact on her
life.

[141]     If the main basis for Dr. Norton’s opinion is the
plaintiff’s self-reporting, then of course the Court’s assessment of the
reliability of her self-reporting must prevail. As mentioned, I do not find her
self-reporting reliable.

[142]     Dr. Norton does say in his November 5, 2013
report that any prior musculoskeletal injuries did not involve the areas injured
in this accident; and that her general health has been “good”. He does not
describe the prior musculoskeletal injuries.

[143]     Dr. Norton did not say whether he was the
plaintiff’s family doctor before the accident and when he first examined her
after the accident or subsequently. The plaintiff also did not give this
evidence. This is a major gap in the evidence and further undermines the weight
to give his opinions.

[144]     In her closing submission, the plaintiff pointed to
this statement in Dr. Norton’s report that prior musculoskeletal injuries
were unrelated to the accident and she asserted this referred to the fact that
she tore her ACL in 2008.

[145]     The fact that the plaintiff had torn her ACL came out
in answer to my questions to her as to why her income in 2008, the year prior
to the accident, was lower than the year before, 2007. She said it was because
in August 2008 she tore her ACL in her right knee and it took about six or
seven months to heal. No other prior injuries were mentioned in the plaintiff’s
evidence.

[146]     When the plaintiff submitted that Dr. Norton’s
reference to prior injuries was a reference to her ACL injury, I pointed out to
the plaintiff that the statement she was referring to in Dr. Norton’s
report referred to plural injuries. The plaintiff then submitted she had also
had two motor vehicle accidents prior to the horse-riding accident, and
shoulder calcification in the supraspinatus tendon in her right shoulder, a
rotator cuff injury. This was not sworn evidence because it arose in final
submissions for the first time and so it is difficult to know how to treat it.
At a minimum it as an admission that there were multiple prior injuries.

[147]     I note that Dr. Norton’s August 8, 2011 report
also refers to the fact that the plaintiff had been hospitalized for an
appendectomy, and the context suggests that this was after the horse-riding
accident. This might be the “unrelated surgery” he mentions in his November 5,
2013 report, as occurring in March 2010. The plaintiff said nothing about this
in her evidence or submissions. She did not try to explain how these events
affected her fitness and income despite her broad claim that the horse-riding
incident caused her a loss of income including in 2010.

[148]     It is remarkable that the plaintiff did not say in her
evidence that she had suffered any other injuries pre-accident and in her
submissions first attempted to mislead the Court into thinking the reference in
Dr. Norton’s report to past injuries was to her right knee ACL injury
only. It is also remarkable that she made no attempt to explain the impact on
her income and functioning caused by her appendectomy or a subsequent motor
vehicle accident which occurred after the horse-riding accident. She did admit
in cross-examination that she is making a separate claim in relation to her
subsequent motor vehicle accident.

Brian Hunt

[149]     The plaintiff also retained a work capacity functional
evaluator, Bruce Hunt, who provided an expert opinion at her request.

[150]     The plaintiff’s instructions to Mr. Hunt were for
him to test her functional capacity but in a very narrow scope, only with
respect to the area she claims was injured by the horse-riding accident: around
her right hip, buttock and sacroiliac joint; and only with respect to her
ability to teach fitness classes and participate in physically demanding
sports.

[151]     By such narrow instructions the plaintiff thereby
avoided any evidence that she has other body limitations related to other past
injuries that could likewise limit vigorous and repeated physical activity.

[152]     Mr. Hunt was not asked to nor did he give evidence
on whether the plaintiff had other physical limitations or on her ability to
work more generally or participate in somewhat less “physically demanding”
recreational activities.

[153]     I found Mr. Hunt to stray beyond his
qualifications somewhat in his evidence. He only examined the plaintiff in 2014
but wanted to state his opinion that the accident caused any issues she is
having with her right hip. He is not qualified to provide this medical opinion.

[154]     Regardless, most telling was Mr. Hunt’s admission
in cross-examination, that it would not surprise him if the plaintiff was able
to climb the Grouse Grind because she is functioning (i.e. fully functional),
and any deficiencies he found would not stop her from doing things, she just
might compensate for it and might have some pain. For example, she might favour
her left leg to take a higher step than her right leg.

[155]     Mr. Hunt’s report states at page 20 that pain did
not prevent her from engaging in all tests during the functional assessment.

[156]     There appear to be only three “clinical outcomes” or
limits identified by Mr. Hunt in his limited physical capacity testing of
Ms. Starrett. These amount to a decreased ability to lunge laterally when
comparing right to left, measured as 5 cm laterally and 8.9 cm lunge depth; and
while she achieves an “excellent” amount of power when she performs a vertical
jump, she achieves somewhat less power on a second jump and decreased height by
3.8 cm. This is apparently after five hours of testing.

[157]     Mr. Hunt also pointed to a decreased speed of
stair-climbing over time.

[158]     Mr. Hunt’s report notes that Ms. Starrett
has a below average aerobic rating when compared to age and gender norms. He
wishes to attribute this to the accident but my impression was he was relying
on the plaintiff’s reporting to him that the accident caused her to decrease
her quantity of physical activities. I am not satisfied that he is qualified to
determine causation of her below average aerobic rating. I am not satisfied
that when he tested her in 2014, the accident was causing the plaintiff to be
less aerobically fit.

[159]     Regardless, the limitations described by Mr. Hunt
appear very minor, even if they could be causally linked to the accident.

[160]     Ms. Starrett reported to him that she had “mild
right side sacral iliac joint tension, rated at 2.5/10, during the intake
interview, described as a little achiness attributed to hiking 45 minutes on
the Northshore the day before testing and to have not stretched after the
hike.” This was in 2014, when the plaintiff was 48 years old.

Conclusion Re
Injuries

[161]     The physical nature of the fall while trying to mount
the horse would corroborate the notion that Ms. Starrett suffered some
immediate bruising and pain and that she would continue to be sore for a while
after falling.

[162]     The plaintiff’s main complaint is that the injuries
caused by the accident have prevented her from being as physically vigorous as
she used to be, causing her a loss of income as a fitness instructor and a loss
of enjoyment of life.

[163]     The general point of the evidence called by the
plaintiff from her lay witnesses, people who have known her for several years,
appeared to be that they believe she was more active and more fit before the
accident than now.

[164]     I found the plaintiff’s own evidence and that of her
lay witnesses to be too general as to the effect of the accident on her
fitness. This evidence, like the very limited expert evidence, was too
carefully crafted to avoid addressing other health issues that might affect
her. The reality is that these witnesses convinced me that the plaintiff can
now perform as an aquatic fitness instructor and has been doing so in the years
since the accident.

[165]     The plaintiff presented her case as though she could
isolate the injuries she claimed were caused by the accident and blame loss of
function and income on these injuries, without telling the Court how the rest
of her body was functioning and the impact on her body of several other mishaps
and of the natural consequences of aging and weight gain.

[166]     The plaintiff has failed to persuade me that but for
the injuries she sustained in the horse-riding accident, she would have been
able to participate in a higher level of fitness activities than she otherwise
did. However, I accept that she suffered some pain and soreness for a short
period, as much as two months, after the accident, and that this is why she did
not return to teaching four classes per week of aquatic fitness at the WVAC for
the rest of 2009.

[167]     I will now turn to assess the plaintiff’s damages.

Damages

A.    Loss of
Income and Loss of Earning Capacity

[168]     When the plaintiff testified about the loss of income
she claims was caused by the injuries she sustained from the accident, she was
very general and conclusory about her claimed lost work opportunities.

[169]     The plaintiff’s explanation of her loss of income
claim was illogical and when she was questioned about it she was evasive.

[170]     When I pointed out that generally the court is given
more details in a claim for loss of income, I was taken to documents which,
when I had time to review, revealed that the plaintiff earned more after the
accident than before the accident.

[171]     I asked the plaintiff about this, trying to understand
her claim, and she explained that she could not work teaching as many fitness
classes before the accident because it was not “legal” to leave her children
unattended because the youngest had not yet attained the age of 11. She also
suggested that she and her husband could not afford childcare. She explained
that her children had only just reached the age where she decided she was able
to work more hours doing fitness training (because they would not need childcare
was the inference), but the accident intervened and that is what interrupted
her ability to do more work.

[172]     The plaintiff’s youngest son had turned 11 in December
2008 as he was born in December 1997. Her oldest son was 12 in 2008 and 13 in
2009.

[173]     As mentioned, it also came out that the plaintiff had
torn her ACL in her right leg in 2008 and had required some six to seven
months to recover.

[174]     The plaintiff’s tax returns indicate her husband was
making over $237,000 in 2008, the year before the accident. Stating that
she and her husband could not afford daycare prior to when her youngest son turned
11 would seem an attempt to engender sympathy for her financial need. A
more objective perspective would describe this as a choice they made: not to
incur a childcare expense and to prefer the plaintiff to forgo income to be
able to have more time with the children. Perhaps daycare costs also exceeded
the potential income the plaintiff might earn based on her history.

[175]     The choice of a parent not to work full-time when her
children were young, so that the parent could have more time with her
children and not require external childcare providers, is of course a
legitimate choice. The problem is that rather than just saying this, and
instead, by describing her choice the way she did – first as a legal
requirement, and then because this was all she and her husband could afford –
the plaintiff made me wary of her characterization of events.

[176]     To support her loss of income claim, Ms. Starrett
filed as agreed document exhibits letters of support from former colleagues
which clearly were influenced by her directions that her injuries caused her a
loss of income. These witnesses were not capable of giving that evidence as it
was not information in their direct knowledge. Of course the Court is able to
recognize that some mistakes can be made by non-lawyers in trying to tender
evidence. But the point here is that Ms. Starrett was very leading in the
information she put before the Court and given my concerns already stated that
she was not objective, the evidence she called was not at all persuasive.

[177]     Ms. Starrett claims a loss of income for the full
contract at Hollyburn that she was offered starting in October 2010, teaching
aquafit classes for three terms. I note that the evidence was that she started
that contract and then quit. There was no explanation as to why she claims the
full amount of the contract if she did “start” it. But in any event, the
evidence did not persuade me that the minor injuries caused by the accident one
year earlier are what led her to quit that contract.

[178]     Prior to the accident, the plaintiff for the most part
had only been substitute-teaching on occasion, and had only just started
teaching new classes at the WVAC, four times per week.

[179]     I accept that in the immediate aftermath of the horse-riding
accident, she may have felt too sore to continue with the WVAC program that she
was registered to teach. The evidence is that she missed teaching eight weeks
of that program, some 32 classes. Her rate of pay was $35 per hour plus 6%
which I calculate to be $1,120 plus $67 for a total loss of $1,187 during that
period. I accept that forgoing teaching these classes was because of the
injuries in the accident.

[180]     However, after this date the evidence does not support
a conclusion that injuries caused by the horse-riding accident caused any
ongoing loss of income or have negatively impacted the plaintiff’s earning
capacity.

[181]     Ms. Starrett has historically earned income from
more than one source. Not only did she teach fitness classes, she taught
fitness instructors, and she wrote training manuals.

[182]     The documentary evidence of her income in the years
post-accident suggests that she was generating more and more revenue. In 2007,
her total gross income was $22,424.46; in 2008 it was $23,603.80 (the year of
the ACL injury); in 2009 it was $36,331.92; in 2010 it was $24,668.91 (likely
the year of the appendectomy); in 2011 it was $46,521.67; in 2012 it was
$80,987.42; and in 2013 it was $74,091.29.

[183]     I will not address the irony that Ms. Starrett
claims so many expenses against her revenues that she often claims a net income
loss when filing her personal income tax returns. The fact that one claims with
the government to have a business that does not make money, but nevertheless
claims in a personal injury lawsuit that she would have earned even more money
in her business but for her injuries, seems to be a blatant contradiction but
sadly one that Ms. Starrett is not alone in making.

[184]     When Mr. Hunt wrote his report in 2014, he wrote
that Ms. Starrett was currently teaching fitness classes but had shifted
her business more to instructor training; she has acquired various “Trainer of
Fitness Leader” designations, including weight training and personal training
(and there is no suggestion she has any limitations in these activities). He
also noted that she was capable of teaching yoga. He noted that she has her own
studio, as well as training and contracts with UBC, Vancouver, Burnaby and
North Vancouver. This summary was much more detailed than Ms. Starrett’s
oral evidence.

[185]     No one testified as to what is an expected number of
fitness classes an aquafit instructor should be able to teach in one week if
the instructor has an average level of fitness and stamina. The plaintiff did
not explain how many years she worked part-time and what her hours were before
and after the accident.

[186]     I do not think it an oversight that Ms. Starrett
chose not to describe the total hours she worked on a monthly basis prior to
the accident, and the total hours she worked monthly after the accident.

[187]     Leaving aside the problem that I am not persuaded that
any soreness caused by the horse-riding accident caused Ms. Starrett to be
less capable of teaching aquafit classes, other than in the first two months,
the other key problem with the plaintiff’s claim based on loss of income and
loss of future earning capacity is that she has not explained how it is that
teaching fewer fitness classes impacted her overall ability to earn income in
other ways, given that she earns income in other ways and is still very
physically able.

[188]     I have concluded that the plaintiff has found other
ways to earn income by decreasing the amount of time she might spend
leading fitness classes and spending more time on teaching fitness instructors.
This is a logical choice as the plaintiff gets older and taking into account
the common sense likelihood that the body will wear down and need to compensate
for a variety of injuries along the way. The plaintiff earns more income per
hour by teaching instructors than by teaching fitness classes. While the
plaintiff argues that she has to be able to teach fitness classes in order to
teach fitness instructors, the evidence is that she is able to do both but does
more of the latter.

[189]     The plaintiff filed the report of Mark Gosling, an
economist, to support a claim for income loss and loss of earning capacity.
That report did not take into account the findings of fact I have made, set out
above. I find that the assumptions on which that report were based were not
proven in the evidence.

[190]     I find that the plaintiff has proven a past income
loss of $1,187 only, and no loss of earning capacity.

Costs of Future
Care

[191]     The only medical opinion is that of Dr. Norton.
Dr. Norton’s opinions have the weaknesses I have already set out. He seems
to sanction physiotherapy but gives no details of how frequent or why he thinks
such treatment relates to the horse-riding accident as opposed to all of the
plaintiff’s other activities or other causes.

[192]     Ms. Starrett relies on recommendations made by
Mr. Hunt for a variety of treatments. Mr. Hunt is not a medical
doctor. His report was prepared almost five years after the accident.

[193]     I am not persuaded that the recommendations by
Mr. Hunt are sufficiently supported by a medical opinion or that the
reason for these recommended treatments relate to injuries caused by the horse-riding
accident as opposed to other reasons such as over-activity by the plaintiff or
intervening causes. As an example of the former, Mr. Hunt’s report
identifies the plaintiff’s recurrent stretching as possibly contributing to her
reported ongoing joint pain and sacroiliac joint instability.

[194]     The fact is that the plaintiff has not sought out
clinical Pilates, a lumbar belt, or a localized injection, three of
Mr. Hunt’s recommendations. This is despite the fact that she has
apparently sought out a large number of other treatments as can be seen by her
special damages claim. I am not persuaded that these recommended treatments are
justified due to injuries caused by the accident, nor am I convinced that
Ms. Starrett will seek out these treatments.

[195]     I have concluded that the injuries caused by the
accident were of a minor nature. The plaintiff has failed to prove that her
injuries will result in future care costs.

[196]     I therefore do not allow any claim for damages for
cost of future care.

Special Damages

[197]     The plaintiff claims she incurred costs of $20,411.86
as special damages.

[198]     This includes years of physiotherapy treatments,
massage treatments, chiropractic treatments, stretch therapy, and some yoga in
2010.

[199]     Dr. Norton’s reports refer to the plaintiff taking
some treatments, but he does not provide any evidence as to when and how
much was recommended by a medical doctor and related solely to the accident.
Given the problems I have with the plaintiff’s reliability, I am not willing to
assume that just because she took treatments they were necessarily caused by the
horse-riding accident.

[200]     I have looked at the physiotherapy records tendered by
the plaintiff. Under the parties’ document agreement, these are admitted as
documents kept in the ordinary course of business, and as prima facie
proof of the facts observed and recorded.

[201]     The physiotherapy records do support a conclusion that
there was a defined period of treatment following the accident which can be
linked to the accident. Following the accident the plaintiff attended physiotherapy
from October 14, 2009 to January 15, 2010. During this period she attended
the same physiotherapist 17 times for a total cost of $855 ($55 for the
first visit and $50 for subsequent visits). Over this time period the number of
visits declined, so there were eight visits in October 2009 and only two by
January 2010.

[202]     I conclude based on my earlier findings that there was
some initial soreness and stiffness after the accident, that the above period
of physiotherapy visits were justified by the injuries sustained in the
accident.

[203]     After the January 2010 visits, the plaintiff
discontinued her physiotherapy treatments until March 26, 2010. Prior to the
March 26 visit, the physiotherapist referenced a phone call, dated March 3,
2010, noting the plaintiff had had appendicitis and surgery two weeks before. I
find that the plaintiff has not proven that the physiotherapy treatments from
March 2010 forward were a result of the accident. The evidence is also
insufficient to satisfy me that other claimed treatments were a result of the
accident.

[204]     I conclude that the plaintiff is entitled to recover
$855 in special damages.

Non-pecuniary
Damages

[205]     The plaintiff did suffer some pain and discomfort
after the accident. I accept that she was initially very uncomfortable in the
first two weeks after the accident, impeding her home life, and that while she
improved she remained sore and painful for the remaining two months of 2009,
with some lesser discomfort going into mid-January, 2010. It may also be that
emotionally the accident negatively impacted the plaintiff’s perception of
herself as a strong athlete, for a while.

[206]     I am not persuaded that after mid-January 2010 the
injuries had a meaningful impact on the quality and enjoyment of the
plaintiff’s life.

[207]     This Court hears personal injury claims ranging from
catastrophic to minor. Given that there is a common law cap on damages that can
be awarded for pain and suffering, the Court’s approach to these cases is
necessarily comparative.

[208]     The plaintiff referred to several case precedents that
she suggests are comparative. Many of these involved plaintiffs suffering from
severe chronic pain affecting all aspects of their lives, and involved much
more extensive medical evidence. Ms. Starrett’s experience and evidence
does not come close to the cases she relies on.

[209]     The pain and suffering in this case is on the most
minor end of the scale.

[210]     In Nowicki v. Moslehi, 2003 BCSC 425 [Nowicki],
the 44-year-old plaintiff suffered injuries to her chest, neck, back and hips
when her car was rear-ended. She worked in a physically demanding job as a
healthcare worker. The court found that the injuries to the plaintiff’s back
and hips had resolved within six to 12 weeks and found that this was “a
relatively short-lived claim and a rather minor or modest injury.” The
plaintiff was awarded $5,000 in non-pecuniary damages.

[211]     Based on the facts of the present case, with lesser
injuries than in Nowicki, but also given the passage of time since the
2003 decision I have just referred to, I find that an appropriate award of
non-pecuniary damages is $6,000.

Conclusion

[212]     I have concluded that the defendant was liable for the
accident that occurred when the plaintiff fell while trying to mount a horse on
one of his trail rides.

[213]     The plaintiff has not proven that her injuries were
anything but very minor or that they have impacted her life in a material way.

[214]     I find that she is entitled to the following damages:

[215]    
As for costs, the award in this
case is below the $25,000 threshold and within the jurisdiction of the
provincial court under the Small Claims Act, R.S.B.C. 1996, c. 430.
This means the applicability of R. 14-1(10) of the Supreme Court Civil
Rules, B.C. Reg. 168/2009 should be considered. Rule 14-1(10) states the
following:

(10) A plaintiff who recovers
a sum within the jurisdiction of the Provincial Court under the Small Claims
Act is not entitled to costs, other than disbursements, unless the court
finds that there was sufficient reason for bringing the proceeding in the
Supreme Court and so orders.

[216]     In Khan v. All-Can Express Ltd., 2014 BCSC
2066, leave to appeal refused 2015 BCCA 234, Williams J. summarized the
principles arising out of the leading BC Court of Appeal decisions in Gehlen
v. Rana, 2011 BCCA 219 and Gradek v. DaimlerChrysler Financial Services
Canada Inc. and Fletcher, 2011 BCCA 136 on R. 14-1(10) as follows at para. 28:

[28] Based upon these
authorities, I conclude that the principles to be applied in the matter at bar
are these:

a)     where a plaintiff in an action brought in the Supreme
Court recovers a sum within the jurisdiction of the Provincial Court under the Small
Claims Act, R.S.B.C. 1996, c. 430 (that is $25,000 or less), that
party is not entitled to costs, other than disbursements, unless the trial
court makes a positive finding that there was sufficient reason for bringing
the proceeding in the Supreme Court;

b)     the point in time for a consideration of whether a
plaintiff had sufficient reason for bringing a proceeding in the Supreme Court
is at the time the action is initiated;

c)     the meaning to be given to “sufficient reason” is not
limited to the likely quantum of the damages sought; while that is an important
factor, other relevant considerations may be taken into account;

d)     the burden on the plaintiff to establish sufficient
reason requires proof of eligible circumstances that are persuasive and
compelling: Gehlen, at para. 37; and

e)     the determination of whether sufficient reason has
been made out is assessed on an objective basis.

[217]     Thus, the ordinary rule is that the plaintiff will not
be entitled to her costs other than disbursements unless the above test is met.
If the plaintiff seeks costs, she must give notice of her intention to do so
within 45 days of the date of this judgment, and seek a further hearing before
me.

[218]     Likewise, the ordinary rule is that the defendant will
not be entitled to costs. However if there are facts of which I am unaware that
the defendant seeks to rely on to claim costs, the defendant may seek costs by
giving notice of his intention to do so within 45 days of this judgment, and
seek a further hearing before me.

“The Honourable Madam Justice S. Griffin”