IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151022

Docket: 13-3052

Registry:
Victoria

Between:

Jo-Ann
Lynn Hubley

Plaintiff

And:

Dawn
Alison Nicolson

Defendant

Before:
The Honourable Mr. Justice Bracken

Reasons for Judgment

[1]            
The plaintiff claims damages for injuries she received in a motor
vehicle accident that occurred in Fort St. John, British Columbia on September
6, 2011.

[2]            
The plaintiff had entered the intersection of 100th Avenue and Highway
97 in Fort St. John when she was struck broadside by a vehicle driven by the
defendant.  The collision was a high impact collision and both vehicles were
written off.  The plaintiff was taken to hospital by ambulance. She was treated
there and released a few hours later.

[3]            
The plaintiff suffered soft tissue injuries to her back and extensive
bruising to her torso and hips as a result of seatbelt injuries.  She also
suffered an injury to her left knee.  The bruising resolved after a few weeks and
the soft tissue injuries to her back resolved within about six months.  Her
left knee has not fully recovered and she requires arthroscopic surgery to
repair her left knee as well as some damage to her right knee that was the
result of pre-existing osteoarthritis.  The medical evidence is that the
plaintiff suffered damage to both knees as a result of pre-existing
osteoarthritis; however, neither knee had become symptomatic prior to the
accident.  Post-accident the plaintiff experienced pain in her left knee and it
is suspected that by favouring her left knee she aggravated the problems in her
right knee.

[4]            
The plaintiff’s left knee causes her pain and limits her ability to work
and engage in household tasks and recreational activities at the same level as
she has previously done.

[5]            
The plaintiff is 61 years old and has spent her life in the Fort St.
John area of British Columbia.  She was married; however, her husband died in a
motor vehicle collision in January 2008.  She has two adult children, both of
whom live in the Fort St. John area.  Her son resides with her at times although
he works in areas away from Fort St. John at other times.

[6]            
At the time of the collision, the plaintiff worked at the mill near Fort
St. John.  She was employed as a paper wrapper.  The job required her to secure
plastic wrapping material to large bundles of wood.  The bundles are processed
on a line and each bundle is machine-wrapped as it reaches the end of the
process and the wrapping must be quickly secured to the bundle within a short
period of time before the next bundle of wood arrives.  The work requires
stepping up and down from pallets, bending and agility.

[7]            
The plaintiff was also active outside of work.  Before her husband died,
they operated a hobby farm near Taylor, B.C., just south of Fort St. John.  The
plaintiff was responsible for horses, poultry and domestic animals.  She also
liked to walk and to hike.  After her husband’s death, she was less active for
a time and as a result gained some weight.  In 2010, she took part in a program
called “Village on a Diet” which required regular participation in vigorous
exercise and she became more active again and continued to exercise regularly.

[8]            
Following the collision, the plaintiff was off work for a few weeks and
returned to a light work schedule in October of 2011.  By the end of January
2012, she had returned to her regular job at the mill as a paper wrapper.  It
is agreed between the parties that the plaintiff was off work from September 7,
2011 to October 14, 2011 and that she lost $5,800 in wages.

[9]            
The plaintiff returned to full-time work on October 17, 2011, but on
light duties.  She was able to work regular hours, mostly instructing other
employees, and she was also able to work 4 1/2 hours of overtime on her first
day back and an additional 58 1/2 hours of overtime during the remainder of
2011.

[10]        
In January 2012, the plaintiff returned to her former position as a
paper wrapper and continued to perform that work until April 22, 2013 when she
switched jobs and took on the position as janitor at the mill.  Thus, the
plaintiff was able to perform her regular strenuous job for 15 months after
returning to work full-time.

[11]        
In 2012, while she was working as a paper wrapper, she worked regular
hours associated with that position, as well as an additional 154 3/4 hours of
overtime, including several long days where the overtime was in addition to her
regular workday.

[12]        
In 2013, the plaintiff logged more than 420 hours of overtime, and at
least some of that must have been prior to beginning her new job as janitor in
April of 2013.  The defendant noted that between September 9th and 30th, the
plaintiff worked straight through without a day off and did the same between
October 1 and 12, 2013.  In 2014, the plaintiff worked approximately 790 hours
of overtime, considerably more than she worked in 2011.

[13]        
The plaintiff’s income increased over the years following the collision.
She earned $56,725 in 2011, $73,101 in 2012, $90,885 in 2013, and $106,001 in
2014.

[14]        
The plaintiff said that the overtime she worked was often relatively
light work such as “spark watch” duties that required her to simply observe
welders to ensure that no fires were started.  Another area of overtime related
to her work on the mill safety committee which required her to attend safety
meetings on overtime, sometimes away from Fort St. John.  A significant portion
of her overtime involved using a vacuum or air hose to clean sawdust from the
mill.  There was a lot of emphasis on that job following an explosion and fire
at another mill.  The plaintiff said that very little of the overtime was as
strenuous as her regular work as a paper wrapper or janitor.  Nevertheless, it
is plain from these facts that the plaintiff was able to manage a significant
number of long hours of work, a large part of which required her to be on her
feet.

The Plaintiff’s Injuries

[15]        
The plaintiff says that the injury to her left knee is the most serious.
She said that the bruising and soft tissue injuries, while initially painful,
resolved relatively quickly.  Her knee continues to cause difficulty.

[16]        
In October 2011, the plaintiff began a program of physiotherapy and she
continued to do so regularly until November of 2012.  In June 2012, the
plaintiff received a cortisone shot in her left knee on the recommendation of
her family doctor, Dr. Brussow.  The shot was painful to receive and the
plaintiff said it was not particularly helpful.

[17]        
Upon her return to work, she noticed increased pain in her right knee,
likely as a result of her efforts to protect her left knee.  She also found it
difficult and painful to enjoy her usual outdoor activities of hiking and
walking.  She also found housework and gardening difficult.  The water from the
well on her property is not good for drinking and she purchases water in large
containers that are heavy and difficult to move from the lower area of her
residence where they are delivered to the kitchen level where they are used.  Her
son helps her sometimes, but not always.  As a result, she purchased a new
fridge with a water filter.  She claims the cost of the fridge as part of her
damages.

[18]        
The plaintiff’s property is about two acres and has a large area of
grass that needs cutting.  She said she used to enjoy using the push type of
power mower to cut the grass, but her knee injury now prevents her from doing
so.  She had the assistance of a neighbour, who owned a riding mower to help
out by cutting the grass on a few occasions, but she decided to get her own
riding mower and she claims the cost of that mower as part of her damages.

[19]        
There are reports of two orthopaedic specialists in evidence and both
gave evidence at the trial.  Dr. Chin noted that the plaintiff had pre-existent
osteoarthritis in both knees that were asymptomatic before the accident.  He
said that an MRI of the plaintiff’s knee showed a tear of the medial meniscus.  Dr.
Chin found that the “… accident aggravated a pre-existing but asymptomatic
degenerative condition …” in the plaintiff’s left knee.  Dr. Chin also found
that because of overcompensating for the pain in her left knee, the plaintiff’s
right knee is now more painful due to the pre-existing osteoarthritis.  He is
of the opinion that the accident caused or worsened the medial meniscus tear.  In
a subsequent report, Dr. Chin said that at some point, the plaintiff would
likely have had pain symptoms in her left knee as a result of degenerative
arthritis, but he could not say how long it would have been before those
symptoms emerged.

[20]        
Dr. Chin said that arthroscopic surgery is an acceptable option for the
plaintiff; however, he would have preferred x-rays of the plaintiff’s knees
while bearing weight to determine the full extent of the osteoarthritis.  If
the osteoarthritis is severe enough, he is not as optimistic that arthroscopic
surgery will solve her problems.  He said a knee brace to redistribute weight
on her knee away from the injured area might help and that knee replacement
surgery might possibly be necessary.  Nevertheless, he supported the option of
arthroscopic surgery so long as the plaintiff was aware that if the condition
of her knees was worse than initially thought, the arthroscopic surgery may not
solve the problem completely.

[21]        
The plaintiff was referred to Dr. Boyle for an independent medical examination. 
Dr. Boyle is of the opinion that the plaintiff had an extensive tear of the
medial meniscus as a result of the accident.  He recommended an arthroscopic debridement
of the medial compartment of the left knee.  He said that the success rate for
such surgery is very high and that the plaintiff will benefit by reduction of
symptoms and improved knee function.  He also felt that the surgery might possibly
slow the arthritic degeneration that she has experienced.  He felt that both
the left and the right knees could be surgically treated at the same time,
although he noted that the recovery time would be longer.

[22]        
The plaintiff also presented an extensive Occupational Therapy Report
prepared by Ms. Sandra Impey.  Ms. Impey saw the plaintiff at her home on
August 26, 2014 and later at Ms. Impey’s office, where a functional
capacity assessment was conducted on November 14, 2014.  Ms. Impey also went to
the mill where the plaintiff works to observe her as she performed her duties
as janitor.

[23]        
Ms. Impey said that the plaintiff was willing to participate in all
aspects of the examination and showed no sign of embellishment.  In fact, Ms. Impey
said the plaintiff perceived herself as more able to perform physically than
she really was.  She felt that the plaintiff might attempt to work beyond her
safe limits.  Ms. Impey reviewed and relied upon the medical opinions of Drs.
Chin and Boyle as well as her observations of the plaintiff.  She also relied
on the information that she received from the plaintiff during the assessment.  It
was her view that the information provided by the plaintiff was reliable.

[24]        
Ms. Impey conducted a series of tests designed to assess the plaintiff’s
physical strength and dexterity as well as her endurance.  She found the
plaintiff to have problems with her knees that restricts her movement and
endurance.  The plaintiff demonstrated limited ability to stand for long
periods of time, to walk on inclines and an inability to squat.  She said the
plaintiff is limited to carrying no more than 40 pounds with both hands or 20
pounds with one hand.  She said the plaintiff is restricted to work in the
light physical demands category and that she is not capable of returning to her
position as a paper wrapper at the mill.

[25]        
In her current job as janitor, the plaintiff spends most of her shift on
her feet and has to negotiate several sets of stairs during the course of her
work.  Ms. Impey noted that the plaintiff has some inefficiencies and that she
sometimes has to make more than one trip for supplies because of her reduced
ability to carry heavy weights.  However, the plaintiff was described as a hard
worker who did not give in easily to pain and that the plaintiff is a “stoic”
person who has learned to live with pain.

[26]        
Ms. Impey felt that the plaintiff will not be able to sustain work as a
janitor for many more years.  She is of the opinion that the plaintiff is only
marginally capable of completing the tasks involved in her work as a janitor.  She
said that there appears to be no other job in the mill that is physically less
demanding than the job of a janitor.  She also noted that the plaintiff showed
some signs of neglect in her housework when she visited the plaintiff’s home.

[27]        
As the defendant points out, the plaintiff did not make Ms. Impey aware
of the extensive number of overtime hours that she had worked since the
accident or that her income had significantly increased as a result.  Counsel
for the defendant in his cross-examination of Ms. Impey put to her the steadily
increasing income of the plaintiff since the accident and the number of hours
that she had worked since the accident.  However, Ms. Impey said that neither
of those factors changed her opinion.

[28]        
The plaintiff called several witnesses who gave evidence about the
plaintiff’s physical ability both before and after the accident.  Mr. Kelcy
German worked with the plaintiff at the mill in Taylor and later at the mill in
Fort St. John.  He described the plaintiff as a fast and efficient worker
before the accident, but that she slowed down after she returned to work as a
paper wrapper.  Mr. German described the job of paper wrapper and said that
each employee has to be able to wrap a bundle in less than two minutes.  He
said that the plaintiff was not able to do so after her injuries, but that she
was faster than most employees prior to the accident.  Mr. German had not
worked with the plaintiff for at least two years and he is not able to comment
on her physical ability to perform work at the time of the trial.

[29]        
Ms. Lovanna Mohart is a personal friend of the plaintiff and has known
her for several years.  She said that she has not been in as frequent contact
in recent years, but she described the plaintiff as someone who prior to the
accident was physically fit and active.  Ms. Roseanne Hope was a fitness
instructor to the plaintiff at one point and they became friends and frequently
walked and hiked together.  She described the plaintiff as a very strong and
fit person who she had difficulty keeping up with when they were out hiking.  She
said that the plaintiff is now much slower on the hills and is less able to
negotiate stairs.  She said that at times the plaintiff negotiates stairs by
sidestepping upwards rather than by approaching them face on and climbing in a
normal fashion.  She said that even on their walks over flat terrain, she
notices that the plaintiff is less physically able to perform as she did prior
to the accident.

[30]        
The plaintiff’s daughter, Harmony Hubley, also testified to the physical
limitations that she has observed in her mother since the accident.  Ms. Hubley
lives in Fort St. John and works as a teacher.  As a result, she sees the
plaintiff frequently.  She has noted that the standard of housekeeping at the
plaintiff’s home has deteriorated and that the plaintiff is less able to carry
out her normal day-to-day physical activities.  Ms. Hubley was present with her
mother immediately following the accident as she went to the hospital to pick
her up and take her back to her home.

[31]        
She said that before the accident the plaintiff maintained her home to a
high standard and that she performed various chores required on the small farm
that the family kept at Taylor.  She said that the plaintiff enjoyed outdoor
activities including hiking and hunting and she was able to take care of the
various domestic animals around their farm in Taylor.  Since the accident, she
said that the plaintiff’s tolerance for hiking and outdoor recreational
activities has been diminished.  She said the plaintiff tends to work more
slowly and seems to have less energy.  She said that her mother took care of
all lawn mowing activities prior to the accident.  She described her mother as
a hard worker and a person who works through pain and is not inclined to
complain.  She said that in general the plaintiff is now less capable
physically than she was before the accident.

[32]        
Dr. Brussow is a general practitioner and he testified that he had not
treated the plaintiff prior to the accident as she was not his patient.  He saw
her shortly after the accident and he continues to see her up to the present
time.  He described the medications he prescribed for her and described the
complaints that she made about her injuries.  He administered a cortisone shot
to her left knee on one occasion in an effort to relieve pain.  Dr. Brussow was
not qualified as an expert witness; thus, he was only able to give evidence of
what he saw and did.

[33]        
I find that the plaintiff’s soft tissue injuries, while initially
painful with considerable bruising to her front torso and hips, resolved within
a few months of the accident.  The plaintiff was able to return to work on
light duties in just over a month and was back to her full-time position as a
paper wrapper by the end of January 2012.  I find that she suffered mild to
moderate soft tissue injuries to her back that resolved relatively quickly with
little or no long-term effect.

[34]        
The injury to her knee is more serious and has caused long-term problems
for the plaintiff.  The injury clearly aggravated the pre-existing
osteoarthritis in the medial compartment of her left knee that had not been
symptomatic prior to the accident.  It is not clear on the medical evidence whether
the meniscus tear was caused by the accident or if it was pre-existent to some
degree and aggravated by the accident, however, given the force of the accident
and the fact that the left knee became symptomatic soon after the accident, I
find that it is more probable than not that the tear to the meniscus was a
direct result of the accident.  I also find that while the plaintiff has been
able to work full-time from January 2012, she is now restricted to less
physically demanding jobs.  In addition, the plaintiff’s tendency to favour her
left knee due to the pain has caused some aggravation of the deteriorating
condition of her right knee.

[35]        
The plaintiff will require arthroscopic surgery to repair the torn
meniscus in her left knee and to repair pre-existing problems in the right
knee.  While it is reasonably possible she may require knee replacement surgery,
that possibility cannot be attributed to the accident.

Non-Pecuniary Damages

[36]        
The plaintiff seeks non-pecuniary damages of $100,000.  The defendant
submits that damages on this aspect of her claim should be $55,000.

[37]        
The plaintiff argues that the accident has altered the plaintiff’s
previous good health.  She says that she followed medical advice and tried to
remain active and maintain employment following the accident.  She continues to
experience pain on a daily basis and she has diminished physical capacity for
work and recreation.  The defendant submits that the plaintiff’s claim is
undermined by the fact that she was back at work full-time within two months of
the accident and returned to her physically demanding job within five or six
months.  She has earned more income post-accident, largely by volunteering for
extensive hours of overtime including many long days and working several days
without a day off.

[38]        
The plaintiff referred to several cases where general damages were
awarded in the $100,000 range.  In Tchir v. South Coast British Columbia
Transportation Authority, 2014 BCSC 1119, the court awarded $110,000 for a
knee and shoulder injury.  The plaintiff in that case was of a similar age to
the plaintiff here and required surgery.  However, the surgery that the
plaintiff required was both to a shoulder and to a knee, and the plaintiff was
still unable to work five years post-accident.  The prognosis of the plaintiff
in that case was significantly guarded.  Further, the plaintiff in that case
suffered a serious shoulder injury that was described as a permanent
disability.

[39]        
Other cases referred to include Majchrzak v. Avery, 2013 BCSC
1626, where the plaintiff was awarded $95,000 and was still experiencing pain
six years post‑accident, and Thomasson v. Moeller, 2014 BCSC 2465,
where the plaintiff was also awarded $95,000 for non-pecuniary damages although
she lost considerable amount of time from work and was found to be unable to
return to full-time employment.  Both those cases resulted in more serious
disabilities.  The plaintiff also referred to Zhang v. Graham, 2014 BCSC
1578; Reddy v. Staples, 2015 BCSC 87; and Kathuria v. Wildgrove, 2014
BCSC 1274.  In each of those cases, the injuries and effects of the injuries to
the plaintiffs were more severe than the injuries to the plaintiff in this
case.

[40]        
In this case the plaintiff experienced a relatively short period of pain
respecting her soft tissue injuries and bruising.  She experienced immediate
pain and bruising to her left knee, but even so, she was able to return to work
less than two months later and was able to perform light duties that were not
as demanding as her regular job as a paper wrapper.

[41]        
 By January 2012, less than six months post-accident, she was able to
return to her position as a paper wrapper and not only continued to perform her
job for the next 15 months, but was able to work a considerable number of hours
extra hours of overtime.

[42]        
While I accept that the plaintiff experienced pain during that time and
that her performance was less efficient than it had been previously, the pain
did not prevent her from performing her job at least to an adequate level.  She
changed jobs to a less physically demanding position in April 2013 and has
continued to do that job since then.  Her position as janitor is less demanding
physically, but it is not a sedentary job.  She is required to be on her feet
throughout her shift, to climb stairs and to carry moderately heavy items.  I
accept that she has experienced some pain in performing that job, but she was
still able to perform more than 400 hours of overtime through the full year of
2013.  In addition, there is no indication that the plaintiff is in any danger of
losing her job due to poor performance.

[43]        
In all the circumstances of this case, I award the plaintiff $65,000 on
account non-pecuniary damages.

Loss of Future Earning Capacity

[44]        
The plaintiff also claims damages for the loss of future earning
capacity.  The plaintiff submits she should be awarded $50,000 under this head
of damage.  She asked that damages be assessed on a “capital asset” analysis in
accordance with the principles set out in Brown v. Golaiy, [1985] B.C.J.
No. 31.

[45]        
The defendant argues that there should be no damages awarded under this
head other than the sum of $11,250 for the anticipated loss of income following
the plaintiff’s knee surgery.

[46]        
The plaintiff says she will be off work for approximately three months
following her knee surgery and that as a result of her injury to her knees, she
will be less capable of earning income and will be less marketable in the
labour market.  She argues that she will not be able to take advantage of all
potential employment opportunities that might be open to her and will therefore
be less valuable to herself as a person capable of earning income in a
competitive labour market (see Brown v. Golaiy at para. 8).

[47]        
At issue here is the plaintiff’s age.  She was 57 at the time of the
accident and 61 as at the time of trial.  She was able to continue her regular
work for about 15 months after about three months of light duties.  Since then
she has continued to work full-time in a less demanding position.  I accept that
she is less physically capable of working in a physically demanding job.  Nevertheless,
the plaintiff has a limited number of years of normal work life and she is, of
course, subject to potential contingencies that may arise through non-accident
related health issues.

[48]        
The question is whether the plaintiff would have lost capacity to earn
income even if she had not been injured in the accident.

[49]        
The evidence of Dr. Chin is that the plaintiff likely would have developed
symptoms in her knees at some point because of the pre-existing osteoarthritis.
Dr. Boyle agreed with that opinion and said that there would likely have
been some worsening symptoms within about 10 or 15 years.  The plaintiff said
that she planned to continue working until she was at least 67, but more likely
as long as she could.  She has no plans to quit working at the current time.

[50]        
There is a possibility that the plaintiff will have a less than
satisfactory recovery from her surgery, although both Dr. Chin and Dr. Boyle
said that type of surgery has a high success rate.  Barring any serious
problems encountered from the pre-existing osteoarthritis, it is expected that
the plaintiff will make a full recovery.

[51]        
I am satisfied that the plaintiff will continue to work until she is no
longer physically able to do so or no job opportunities exist for her.  While
she is able to do her job at this time, Ms. Impey expressed the opinion that
the plaintiff was not performing as well as expected by the employer, although
there is no evidence from her employer to support that impression.  Ms. Impey
also believes that the plaintiff will not be able to continue full-time work
until retirement age.  The plaintiff will not likely be able to maintain the
level of overtime work as she had up to the commencement of the trial.  If she
finds that as a result of increased pain in her knees, she is unable to
continue to perform her current job as a janitor she will no doubt have
difficulty finding another job within her skill set or at her current pay
level.  While the analysis in this aspect of the plaintiff’s claim is
uncertain, her claim is supported by Ms. Impey’s assessment.  I therefore find
that the plaintiff has been rendered less capable of earning income in the
future and I award the sum of $50,000 under this head of damages.  The award
under this category includes her anticipated loss of income related to knee
surgery.

Cost of Future Care

[52]        
The plaintiff relies on Ms. Impey’s report for most of her claim in this
category.  Ms. Impey recommended extensive future care allowances.  The
defendant submits that most of the claimed items are without factual foundation
and are unnecessary in any event.  The total amount claimed under this head of
damage by the plaintiff is $122,293.

[53]        
Some of the claimed items are recommended by Dr. Chin.  Specifically,
Dr. Chin recommended activities such as stationary bike exercise, aquafit
pool exercises and a knee brace.

[54]        
Some of the largest items relate to the cost of housekeeping assistance ($61,146),
seasonal assistance for yard work ($16,055) and assistance for seasonal
housecleaning ($16,055).  As to those items, the defendant argues that the
plaintiff has provided no evidence that she has needed significant assistance
for housekeeping or housecleaning on a seasonal basis.  While she enjoyed the
assistance of her neighbour to cut her lawn with his riding mower, she did not
pay him to do so.  The plaintiff did have the assistance of a commercial
housecleaner for a few months immediately post-accident, but has not incurred
any expense since 2011.  The plaintiff also claims the cost of future
counselling, but the defendant submits that there is no evidence that the
plaintiff will need, or indeed would take, any such counselling.

[55]        
The principles governing this area of damages are summarized in Langille
v. Nguyen, 2013 BCSC 1460, at paras. 231 to 233:

[231]    The plaintiff is entitled to compensation for the
cost of future care based on what is reasonably necessary to restore her to her
pre-accident condition, insofar as that is possible.  When full restoration
cannot be achieved, the court must strive to assure full compensation through
the provision of adequate future care.  The award is to be based on what is
reasonably necessary on the medical evidence to preserve and promote the
plaintiff’s mental and physical health: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.); Williams v. Low, 2000 BCSC 345; Spehar et
al. v. Beazley et al., 2002 BCSC 1104.

[232]    The test for determining the appropriate award under
the heading of cost of future care is an objective one based on medical
evidence.  For an award of future care:  (1) there must be a medical
justification for claims for cost of future care; and (2) the claims must be
reasonable: Milina v. Bartsch at 84.

[233]    Future care costs must
be justified both because they are medically necessary and are likely to be
incurred by the plaintiff.  The award of damages is thus a matter of prediction
as to what will happen in future.  If a plaintiff has not used a particular
item or service in the past, it may be inappropriate to include its cost in a
future care award: Izony v. Weidlich, 2006 BCSC 1315 at para. 74.

[56]        
The plaintiff says that there will be a cost associated with her
arthroscopic surgery of $200, together with the cost of travel to Dawson Creek.
That claim is reasonable and is allowed at $200 for surgery and $200 for
travel.  It is anticipated that she will require someone to travel with her to
assist her in returning home after the surgery.

[57]        
The plaintiff also claims physiotherapy at the rate of $95 per session
for a total of $380 per year.  The plaintiff says that she should receive such
treatment for 21 years, the expected remainder of her life.  I agree she will
need some physio following her knee surgery and likely from time to time while she
is working at the mill.  I allow the sum of $2,000 on account of physiotherapy
costs.

[58]        
Ms. Impey also recommended occupational therapy for the plaintiff.  The
stated purpose of such therapy is to assist her from moving from her current
employment to unemployment.  The basis for the claim is the plaintiff’s
statement that she does not know what she would do if she could not work.  There
are two problems with this claim.  First, the plaintiff was 57 at the time of
the accident, about 8 to 10 years from the age of expected retirement and will
be faced with a transition from the workforce at that time.  There is no
evidence to suggest that she will be forced to retire any earlier than age 65
to 67 as a result of the accident.  Second, the plaintiff does not believe she
will need such counselling.  I am not prepared to make an award for this aspect
of the plaintiff’s claim.

[59]        
The medical evidence supports the need for exercises such as aquafit
training in a swimming pool and riding a stationary bike.  The plaintiff claims
the costs of aquafit ($3,469), restorative yoga ($7,070), and the purchase of a
stationary bike ($1,600).  The defendant argues that such claims are both
unnecessary and excessive.  The defendant says a one-year membership in a
fitness club such as exists at the Pomeroy recreation centre in Fort St. John
would allow the plaintiff to do all of the exercises suggested and provides all
of the necessary equipment including a swimming pool for that purpose.  The
defendant argues there is no need for the plaintiff to purchase her own
stationary bike.

[60]        
I agree with the defendant on this point.  It is unnecessary and unreasonable
in my view for the plaintiff to purchase a stationary bike of her own.  The
defendant also submits that such activities fall more into the category of
personal recreation and fitness as opposed to medically-necessary therapy.  I
allow $1,000 as the sum that should cover needed therapy resulting from the
accident, as opposed to ongoing personal fitness or recreation.

[61]        
The plaintiff claims a knee brace to be replaced every five years.  This
claim is supported by Dr. Chin, who was of the opinion that it would be of
assistance to the plaintiff.  Given the plaintiff’s work ethic and active
lifestyle, I agree that this is a reasonable claim.  I allow a total of $3,950
as claimed by the plaintiff.  The plaintiff is also awarded $400 for cold packs
and heat pads as claimed.  I also allowed the sum of $240 for trekking poles
recommended by Dr. Chin, which I find will be of assistance for her.

[62]        
I am not prepared to allow the significant claim of $61,146 for
housekeeping.  The evidence does not support the need for an award of that
significance; however, I accept that there will be times when the plaintiff
will need some assistance to maintain her home and property.  I allow the sum
of $7,500 as an all-inclusive sum on that claim.

[63]        
I include in that award the claim for seasonal cleaning and seasonal yard
work.  Both these claims as presented are in my view excessive and while I accept
that the plaintiff may need some assistance, the evidence does not support an
award at the levels claimed.  It is to be remembered that the plaintiff has not
only worked at her former position of paper wrapper for 15 months post-accident,
but she has been working full-time as a janitor since then.  She has also
worked many hours of overtime and many long days.  Her claim in these
categories is inconsistent with what she has demonstrated that she is able to
do.

[64]        
While the plaintiff is entitled to compensation for housekeeping and
home maintenance assistance where needed, there must be evidence that such
assistance is required.  See McTavish v. MacGillivray, 2000 BCCA 164.  In
this case, there is insufficient evidence to support such a claim.  The
plaintiff is therefore awarded the sum of $15,490 for the cost of future care.

Special Damages

[65]        
The plaintiff submits that special damages should be awarded in the
amount of $10,834.21.  Of that amount $5,540.90 are out-of-pocket expenses for
physiotherapy, counselling, housecleaning expenses from September to November
2011, prescriptions and meal expenses while attending for medical appointments
in Grand Prairie, Alberta.  Those expenses, while not accepted in entirety by
the defendant, appear reasonable and necessary and I award that amount.

[66]        
The plaintiff also claims an additional $2,101.37 for a new fridge and
$3,191.94 for a new riding mower for her large property.  The defendant objects
to both.

[67]        
The plaintiff said in her evidence that as she lives on a relatively
large semi‑rural property and she has a very large area of lawn.  Before
the accident, she cut the grass with a power mower that she pushed.  This was
both a chore and a recreational activity for her.  After the accident, she said
she could not push the mower any longer and required a riding mower.  She
claims the cost of the mower and future maintenance costs.

[68]        
The plaintiff submits that the new fridge was necessary because the
water from the well on her property is not suitable for drinking and she must
buy bottled water.  As already noted, the water is delivered to a lower level
of her house and is needed in the upper level.  As a result, the heavy water
bottles must be carried from the lower level up a flight of stairs to the upper
level.  She purchased the fridge with a built-in water filter to avoid the need
to carry the water bottles.  The defendant argues that both these expenses are
excessive luxuries that should not be allowed.  I agree.  In each case the
claim ignores the ability of the plaintiff to work her regular hours as a
janitor as well as a significant number of overtime hours.  The evidence of her
work history since the accident contradicts the need for these items.  As a
result, I allow the sum of $5,540.90 on account of special damages.

[69]        
In summary, I award the plaintiff $5,800 for past wage loss; $65,000 for
non-pecuniary damages; $50,000 for loss of future earning capacity; $15,490 for
cost of future care; and $5,540.90 for special damages; for a total of $141,830.90.

[70]        
The plaintiff is also awarded court order interest in accordance with
the Court Order Interest Act.  Barring any application to the contrary,
the plaintiff is entitled to her costs.

               “J.
K. Bracken, J.”                

The
Honourable Mr. Justice Bracken