IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100723

Docket: S052951

Registry:
Vancouver

Between:

Shannon Hunter

Plaintiff

And

Flora Anderson

Defendant

Before:
The Honourable Mr. Justice Cullen

Reasons for Judgment

INTRODUCTION

[1]            
In this action, the plaintiff, Shannon Hunter, claims damages for
injuries said to have resulted from slipping and falling on the front stairs to
her rental accommodation at 3131 Raleigh Street, in Port Coquitlam on January
7, 2004.  The defendant, Flora Anderson, was the plaintiff’s landlady at the
material time.  The plaintiff alleges that the accident was caused by the
negligence of the defendant occupier contrary to the terms of the Occupier’s
Liability Act, R.S.B.C. 1996, c. 337.

[2]            
The plaintiff’s alternative claim is that “the accident was caused by
the breach of a residential tenancy agreement executed by the parties in which
the defendant … is the landlord and the plaintiff … is the tenant” and that
“in breach of the tenancy agreement, the landlord failed to provide premises
that complied with the Coquitlam building bylaw and the B.C. Building Code.”

[3]            
The plaintiff claims injuries to her elbow and to her left shoulder were
caused by the slip and fall.

[4]            
The defendant denies liability, asserting in her pleadings that “at all
material times, the plaintiff was the occupier of the premises pursuant to the Occupier’s
Liability Act”, and she denies any breach or non-compliance with the
residential tenancy agreement, the Coquitlam building bylaws or the British
Columbia building code.

[5]            
The defendant, while admitting the slip and fall occurred, denies any
negligence on her part, denies that the plaintiff suffered any injury, and
pleads in the alternative that if the plaintiff did suffer injuries, they “were
in whole or in part caused by her own negligence.”

THE PLAINTIFF’S CASE

[6]            
The plaintiff’s case consisted of her evidence; the evidence of her son
Chris Hunter; her friends, Darla Nordin and Giselle Hedrick; Carlene Lucke, a
former tenant at 3131 Raleigh Street; the medical report and cross-examination
of her general practitioner, Dr. Jennifer Fyfe; the reports and
cross-examination of an orthopaedic surgeon who treated her, Dr. Farhad Moola;
the reports and cross-examination of Natalie Allende, an occupational therapist
who assessed the plaintiff and calculated her cost of future care; the report
and cross-examination of William Stanus, a vocational consultant who assessed
the plaintiff and who provided the court with an opinion as to the impact of
the slip and fall on her future earning capacity; and the reports of Granville
Airton, P. Eng, a “Forensic Engineer” who assessed the stairs on which the slip
and fall occurred.

[7]            
In addition, various clinical records, consultation reports and
miscellaneous records were admitted including the clinical records of Dr.
Fyfe’s predecessor, Dr. Horvat; clinical records of Dr. Fyfe; clinical
records of Eagle Ridge Hospital dated January 7, 2004 to June 22, 2007;
clinical records and a consultation report from Dr. Bertrand Perey; clinical
records and consultation reports of Dr. Moola; a consultation report from Dr.
Andrew Hepburn dated November 30, 2004; clinical records of Royal Columbian
from April 5, 2002 – April 13, 2007; and various income tax, WorkSafe BC,
employment, MSP and PharmaNet records.

  The Plaintiff’s Evidence in Chief

[8]            
The plaintiff is 41 years old.  She has two sons, Chris who is now 18
and Tyler who is now 13.  She works at three jobs: for School District 43
(Coquitlam) as a Special Education Assistant, teaching living skills to
developmentally disabled people through Simon Fraser Community Living Society,
and teaching living skills to an autistic person who lives in a basement suite
in the house which she presently rents.

[9]            
She met the defendant in February of 2003 when she agreed to rent the
premises from her at 3131 Raleigh Street.  The rental premises consist of the
upper floor of the house on Raleigh, which includes three bedrooms.  At the
relevant time, the defendant lived in a basement suite in the same house.  The
parties entered into a tenancy agreement dated February 26, 2003.  Under the
agreement, the plaintiff paid $1,000 a month rent and a proportion of the
utilities.  She testified that she negotiated a reduction in the rent from
$1,100 per month to $1,000 by agreeing to look after the front yard – mowing
the lawn.  Her access to and from the premises was only through the front door
of the house which involved use of the front stairs, which is where the slip
and fall occurred.

[10]        
According to the plaintiff, the day before the incident, on January 6,
2004 it had been snowing and the defendant asked her son Chris if he would
shovel the walks and the stairs.  The defendant was off work because of a bad
knee and she gave Chris $5.00 and a shovel to do the job with.

[11]        
The plaintiff had not gone to work on January 6, 2004 and she called
into work on the morning of January 7, 2004 to indicate that she would not be
into work that day either because of a cold she was suffering from.  She
testified that she took the dog out the front door and when she stepped down
onto the first step, she slipped and fell, striking her left elbow.  She
testified she was in “excruciating pain” and called for her sons to get the
defendant to help her because she felt she was going to pass out.

[12]        
She said that in taking the dog out, she didn’t use her own shoes, but
used her son Chris’ running shoes.  She said they fit her; the shoes were Nike
running shoes and they were made an exhibit at the trial, having been produced
by the plaintiff.

[13]        
After she called her sons, they came to the front door and then went
downstairs to get the defendant from her suite to help.  According to the
plaintiff, she pulled herself to the middle stair and then woke up to find the
defendant patting her and telling her to wake up.  She said the defendant told
Chris to get some salt and put it on the stairs and then assisted her to her
feet so that she could go into the house.  The plaintiff asked the defendant if
she would drive the boys to school and then come back, pick her up and take her
to the hospital.

[14]        
The plaintiff testified she did not know if there was ice on the stair
or not when she slipped and fell.  She testified that she told people at the
hospital that she had slipped and fell and was suffering pain from her left
elbow and her shoulder which had seized up.  She said she got morphine for the
pain and was x-rayed to determine the nature and extent of the injury to her
elbow.  She testified that when she returned home from the hospital, the
defendant helped her in and then made dinner for the boys when they got home.

[15]        
Her family doctor at the time was Dr. Horvat.  He subsequently closed
his practice and moved to another community and she then became a patient of
Dr. Fyfe’s, starting in September 2004.  The plaintiff went to see Dr.
Horvat the next day and was sent to Dr. Perey’s clinic where she had a cast put
on her left arm.  She testified her arm was in a cast for about a week and the
cast was then removed, but her arm was in a sling.  She explained that Dr.
Perey tried to examine her arm but she was still having quite a bit of pain and
it was tender to the touch, so he gave her mobility exercises “to loosen up”.

[16]        
She testified that the next event concerning her injury took place on
March 12, 2004 when Dr. Perey, who is an orthopaedic surgeon “repaired the ulnar
nerve” in her left elbow.  She was placed under a general anaesthetic for that
operation.  According to the plaintiff, Dr. Perey told her that it appeared her
shoulder was frozen and he did a manipulation.  After her surgery, she had a
bandage and her arm was in a sling for about a week.  She then went into Dr.
Perey’s office, had the staples removed and underwent what she described as
intensive physiotherapy to try and get the mobility of her arm back.

[17]        
On May 10, 2004 she was “given the ok” to return to work.

[18]        
In January, before the slip and fall, the defendant had given notice to
the plaintiff to end the tenancy.  According to the plaintiff, it was because
the defendant wanted the upper floor available for her daughter to live in. 
She testified the notice came in the form of a letter on January 1, 2004 and it
asked her to vacate by March 31, 2004.  In the result, she left and rented a
basement suite at 1910 Homer Street.  She denied receiving notice to vacate by
reason of failing to pay her rent on time and being in arrears for utilities,
although she agreed that she had been late in paying her February rent.

[19]        
The plaintiff testified that she had been referred to an orthopaedic
surgeon, Dr. Andrew Hepburn in November 2004 concerning her shoulder
injury.  She testified Dr. Hepburn referred her back to Dr. Perey, who
then referred her to Dr. Moola who diagnosed her with a frozen shoulder
and prescribed both physiotherapy and a cortisone shot.  She testified that the
shot gave her short-term relief.

[20]        
She was asked in chief about any previous injuries she suffered and she
testified to “catching” her elbow on a box while helping her girlfriend move in
October of 2003 but she said that injury did not impair her ability to work or
enjoy any activities.  She testified that on an earlier occasion in 2001, she
was kicked in the neck area by one of her students.

[21]        
In 2003 she suffered the effects of a fall down some stairs while
helping her brother’s girlfriend who had had too much to drink.  She testified
she hit her lower back on the stairs and was injured at that time.

[22]        
As to the slip and fall, she testified it had been raining on January 7^th
and the lower stairs and lower landing were slush, but the top two stairs and
upper landing were dry.  She agreed she signed a type-written statement dated
January 22, 2004 which had been prepared by the defendant’s daughter,
Georgina.  The statement read as follows:

On Wednesday, January 7/04,
around 8:00 a.m. I Shannon Hunter went to walk my dog.  It was raining at the
time.  I put on my son’s skateboard shoes.  On the first step I slipped and my
right leg went out from under me.  I was holding an umbrella in my left hand
and the dogs leash in my right hand.  I caught myself with my left elbow and
sustained injury to my left elbow (Medical details can be provided).  I slid
down to the landing and called my sons to call Flora who lives downstairs.  I
used my legs to leverage myself up to the middle step.  I told my son Chris to
get Flora because I knew that I was going to pass out.  I have no recollection
past that point until Flora arrived.  Flora picked me up and helped me inside. 
My son Chris salted the stairs then walked the dog.  I asked Flora to drive my
boys to school.  She did, and then drove me to Eagle Ridge Hospital.  My son
Chris and I had shoveled [sic] the steps and landing the day before.  I did not
know that there was black ice under a layer of snow that morning.

I declare that the above
statement is true to the best of my knowledge.

[23]        
She denied knowing what the purpose of the statement was but said it
described what had happened to the best of her knowledge.  She said she was
told there was black ice under the snow on the stairs when she was travelling
to the hospital with the defendant.

[24]        
She testified that although she returned to work on May 10, 2004 and stayed
to the end of the school year in June 2004, she did not return to work in
September 2004 and remained off work until October 2005.  She attributed her
absence from work to “having issues” with her shoulder.

[25]        
After returning to work in October 2005 she worked until April 2007.  On
April 3^rd she described a student coming to the special education
assistance room and banging on the door.  She reached for the door and at the
same time, the student swung it open, which caused her to extend her arm and
cause pain.  She didn’t take any time off work as a result of that, but two
days later, on April 5, 2007 she fell while stepping over a log at the edge of
the school parking lot.  She fell on her left arm.  As a result of that fall,
she was taken to Royal Columbian Hospital, where she remained for thirteen
days.  She had an MRI and a CT scan of her neck and Dr. Moola prescribed two
more cortisone shots for her shoulder.  She testified she was off on WCB
benefits until July 1, 2007, when WCB ended those benefits.

[26]        
On July 18^th, 2007 she underwent a capsular release of her
shoulder and also did two months of physiotherapy.  She returned to work in
September 2007 and has worked consistently ever since.

[27]        
She testified the capsular release conducted on July 18, 2007 solved the
majority of her shoulder problems, but she still experiences stiffness and pain
in her shoulder and elbow and can’t fully extend her arm.  She testified she
doesn’t work with the same children as she did before and she does not play the
same sports including volleyball, basketball, tennis or skiing and she does not
ride a bike or water ski as she did prior to the slip and fall.

[28]        
She testified that she does not dance to the same extent she did before
and is limited in the home repairs that she can do.  She testified she is
unable to reach to her full ability and finds it harder to clean or do any
heavy lifting.  She does cook and teaches others life skills, but she testified
her boys do quite a bit of the cooking for the family.  She said that certain
tasks, such as vacuuming, take more time than they did before the accident.

[29]        
Ms. Hunter presented evidence of her pecuniary damages including her
past wage loss.

[30]        
She sought special damages of $329.98 representing the cost of
prescription drugs including Tylenol #3, Naproxen, Triamcinalone and oxycocet
which were used to alleviate her symptoms from the injury from January 7, 2004
to April 23, 2009, a clavicle strap purchased on August 25, 2004 and the cost
of physiotherapy treatments received on October 25, 2005.

[31]        
She testified she had other physiotherapy expenses but had lost the
receipts and so therefore wasn’t claiming for them.

[32]        
Ms. Hunter also made an “in trust” claim on behalf of her brother,
Trevor Hunter, who, she testified, purchased groceries, phone cards and
prescriptions for her between September 2004 and October 2005, totalling
$460.97.

[33]        
She also made an “in trust” claim for her friend, Darla Nordin in the
amount of $2,729.88 for payment of food ($1,842.57), clothing ($823.11),
prescriptions ($39.20) and a phone card ($25) which, she testified, were
incurred in 2004 and 2005.

[34]        
Ms. Hunter also claimed a past wage loss of $28,500 as a result of being
off work from January 7, 2004 to May 10, 2004 and again between September 2004
to October 2005.

  Cross-Examination

[35]        
In cross-examination, the plaintiff’s credibility and the reliability of
her evidence were challenged, both in relation to the issue of liability and as
to the nature and extent of the injuries she asserted were caused by the slip
and fall.

[36]        
She acknowledged the stairs were used by her and her sons and not by
Ms. Anderson and she acknowledged that Ms. Anderson had knee problems.

[37]        
She has a Grade 12 education; she receives $1,210 a month in support for
her two sons and for the past year, has worked about 60 hours a week at her
three jobs.

[38]        
The plaintiff agreed she has been diagnosed with Attention Deficit
Hyperactivity Disorder (ADHD) and was prescribed medications for that condition
at the time of the accident.  She also suffered from depression which arose out
of her breakup with a boyfriend in the fall of 2003 and she was charged
criminally as a result of a confrontation with her boyfriend and his new
partner.  She testified she was ultimately ordered subject to a peace bond as a
result of the incident.  She agreed she was on medication for depression at the
time of the incident.  It was pointed out to her that the occupational therapist
who assessed her, noted in a report dated December 11, 2009:

Ms. Hunter indicated that she had
suffered from depression during the year following her accident since
she was off work and had significant financial difficulties.  She reported that
she attended a few counselling sessions in 2005.  She indicated she no longer
feels depressed. (emphasis added)

[39]        
Ms. Hunter was asked if she told Ms. Allende of her earlier distress and
depression before the accident and she responded that she “knew” because she
had been on efflexor at the time.

[40]        
Ms. Hunter was questioned as to her medical history.  She was shown a
School District Employee Incident Report and a Workers’ Compensation Board
claim which she made in 2000 claiming a fracture to her left wrist when it was
caught in a car door.  She testified that she had injured her left hand two
years prior to that incident when she fell while running to catch a bus.  She
testified she was not off work as a result of either of those injuries.

[41]        
She agreed she was off work for six months between September 24, 2001
and March 5, 2002 following an incident when she was kicked in her
shoulder/neck/face area by a student.  She agreed the injury included her left
shoulder.

[42]        
She testified that when she returned to work from that incident it was on
the condition that she would not work with children exhibiting extreme
behaviour.

[43]        
Two months later, in May 2002 she made another Workers’ Compensation
Board claim resulting from an injury when she was in the school gym and
reaching above her head.  She “felt a pop between [her] shoulder blades”.  Her
claim was denied.

[44]        
She subsequently made another Workers’ Compensation Board claim a day or
two later, complaining of headaches and soreness from hanging balloons for a
birthday party.  That claim was denied as well.  Ms. Hunter was off work for
June 2002 and collected Employment Insurance during that month.

[45]        
In the summer of 2002 she testified her activities included casual
pick-up baseball with her sons, basketball with her children, but no wakeboarding
or waterskiing.  She testified she bicycled with her children and could dance
“somewhat”.  She agreed when shown a document that she applied for benefits
from the School District #43 (Coquitlam) and CUPE Local 561 Joint Sick Leave
Benefit Plan on June 21, 2002 but had “no idea” what she was applying for.

[46]        
She returned to work in September 2002, but on October 16, 2002 she
signed a form applying for a disability pension.  She testified she did not
remember why she applied for that disability pension and she did not remember
if she had a doctor assisting her in that application.

[47]        
Ms. Hunter agreed that she met the defendant in early 2003 through her
friend, Darla Nordin.  The defendant and Ms. Nordin worked together at a home
for disabled people where the plaintiff had worked for a period as well.  Carlene
Lucke, who was called as a witness for the plaintiff and who had previously
rented the premises at 3131 Raleigh, also worked at the home, but the plaintiff
asserted she had not met her while working there.

[48]        
She testified that she was seeing Dr. Horvat in January 2003 and was on
several medications at that time.  She testified it was in that period that she
was in the midst of her break-up, and suffering from depression.

[49]        
When she rented the premises from the defendant, she expressed no
concerns about the property and she agreed that the lease she signed contained
a provision that read as follows:

COMMON AREAS.  The tenants are
responsible to properly cut and water the lawns, and for weeding the flower beds. 
All balconies/patios must be kept clean and tidy.  The tenant shall not misuse
areas of the residential property, but shall use them prudently, safely and
equitably.  All such use shall be at the risk of the tenant, and the tenant’s
guest.

[50]        
She agreed that she told the defendant she was handy and would do work
around the house for a reduction in her rent.  She testified however that that
was limited to cutting the lawn, which she estimated would take about one-half
hour per week.

[51]        
She moved into the property at the end of March 2003.  She agreed that
she earned $21,000 from employment in 2003, but she did not work in the summer
time.

[52]        
She denied the suggestion that she told the defendant or any of her
friends that she believed she had won the Reader’s Digest Sweepstakes in 2003. 
She could not recall whether she purchased a new vehicle, but agreed that she
bought a Ford Explorer at some point.  She couldn’t recall how expensive it
was, or what the payments were that she made for it.  She testified that she
traded in the Explorer for a car that was two years older because she couldn’t
afford the Explorer and did not have it for long.  She agreed that she signed
up for a course in traffic control, which turned out to be a “scam” and she
agreed that in 2003 she asked the defendant and her daughter, Georgina, to help
her create a new resume.  She testified however it was to get a second job, not
a replacement job.

[53]        
She agreed that she fell down some stairs and injured her lower back for
which she took Tylenol, but she did not recall requiring physiotherapy for that
injury.

[54]        
The plaintiff agreed she returned to work in September 2003 and
testified that she was struggling financially and was unable to pay for her
efflexor medication, so she got free samples from her doctor.

[55]        
She denied the suggestion that she had a conversation with the defendant
in late 2003 about solving her financial struggles by making a claim for an
injury or that she talked about severing a finger or falling at work.

[56]        
She agreed that she got notice from the defendant on January 1, 2004 but
denied that she was behind in her rent at that point.  She testified she was
upset at getting the notice, but she understood the defendant wanted her
daughter to move in.  She agreed that she did not return to work after the
Christmas holidays ended in 2003/04 because she had a cold.

[57]        
She agreed that in her examination for discovery she testified that the
defendant had previously cleared snow off the stairs, but she agreed with the
suggestion put to her in cross-examination at the trial that it had not
previously snowed while she had been at the Raleigh Street premises.  She did
not believe it snowed again before she left the premises.

[58]        
She also agreed that at her examination for discovery she testified she
could not recall if there was snow on the stairs.

[59]        
She agreed that when she went out onJanuary 7^th to take the
dog out, she had a leash in one hand and an umbrella in the other and her son’s
“skate shoes” on.  She testified the top landing was dry, the top step was wet,
the bottom and middle step were slushy.  She “couldn’t recall ice”.  She
testified her foot slipped on the first step down and she could not say why. 
She did not know if there was ice on the stairs or not.  She testified she
couldn’t recall telling the hospital staff on January 7, 2004 that she fell on
“icy stairs” or that she told that to Dr. Perey or Dr. Hepburn or Dr. Moola,
although each of them reported that that is what she told them.

[60]        
The plaintiff repeated that she and her son had completely shovelled the
snow off the stairs the night before.

[61]        
The plaintiff denied the suggestion that she had her sons get the
defendant to witness her lying on the stairs to advance her claim, saying that
she asked them to get the defendant because she “knew [she] was going to pass
out”.  She testified she did pass out from the pain in her arm and was awakened
by the defendant, telling her to wake up and tapping her on the face.

[62]        
She agreed that she did not call or have anyone call 911 for assistance
and she agreed that she asked the defendant to take the boys to school before
she herself was given a ride to the hospital, despite being in “excruciating
pain”.  She testified that was “just the way it happened”.

[63]        
She agreed that according to the hospital records, she was diagnosed
with a soft tissue injury and an x-ray of her elbow showed no break.  She
testified that the following day she got an appointment through her doctor at
the casting clinic and got a cast put on her arm.  The cast was only on for
about five days.

[64]        
She agreed she saw Dr. Horvat again on January 15, 2004 and that in his
clinical notes, she was reported as having told him that she had passed out
when she tried to stand up.  She testified that what happened was that when she
was pulling herself upstairs, she felt as though she was going to pass out. 
She did not recall telling Dr. Horvat she had passed out when she tried to
stand up.

[65]        
She agreed she took Tylenol #3’s for five to six days following the slip
and fall.

[66]        
She agreed that in the January 22, 2004 statement which she had signed,
it said she did not realize there was black ice under the snow.  She also
agreed that she made no mention of her shoulder being injured at the time of
the January 22^nd statement.

[67]        
She agreed she did not have physiotherapy after the accident, but when
she saw Dr. Perey on January 19^th, 2004, he gave her a rotation
exercise to do and then she had surgery scheduled for March 12, 2004.  She
agreed she told Dr. Perey about an injury to her elbow in October 2003 and that
from that injury she “had low grade numbness to her left ring and little
finger” and was unable to completely extend her elbow.  She agreed that she did
not allow Dr. Perey to touch her elbow during his examination of her.  She
agreed she saw Dr. Perey again on February 5, 2004 and still did not complain
of her shoulder.  She agreed that Dr. Perey reported that a nerve conduction
study performed on her elbow showed “very mild slowing about ulnar nerve.”

[68]        
After the March 12^th surgery, she returned to work on May 10,
2004, but the next day on May 11, 2004 she went back to Dr. Perey, who reported
that she made “multiple complaints about her left upper extremity with pain and
stiffness to her left shoulder along with sensitivity to the medial aspect of
her left shoulder.”

[69]        
Dr. Perey further reported as follows in connection with the Ulnar
Transposition he performed on March 12, 2004:

Examination under anesthesia revealed a very stiff left
shoulder and I suspect she has a significant frozen shoulder.  Her whole upper
extremity problem is more in keeping with an autonomic dysfunction such as
complex regional pain syndrome.  I think she is slowly improving and I have
asked that she undergo formal physiotherapy for aggressive range of motion and
strengthening exercises to her shoulder.  The sensitivity over her incisional
site will continue to improve with time.  I expect her prognosis to be
favorable.

I will reassess her in two
months.  My best regards.

[70]        
The plaintiff testified she could not remember the May 11^th,
2004 visit to Dr. Perey or making the complaints that he reported.  She
testified she finished off the school year, but had one incident at school when
she injured her elbow by hitting it on a bookcase.  She testified she saw Dr.
Perey the same day, but she took no time off work.  She did not remember having
any therapy over the course of the summer of 2004.

[71]        
Ms. Hunter first saw Dr. Fyfe, her new family doctor on September 4,
2004.  That was the Saturday before school started and before she was to return
to work.  According to Dr. Fyfe’s clinical notes, the plaintiff told her she
“broke her arm” and “dislocated her shoulder” and had surgery in March.  She
also reported there was a law suit arising from the slip and fall.  The
plaintiff was asked whether she told Dr. Fyfe about breaking her arm and
dislocating her shoulder and she testified she did not know whether she told
her that or not.  She could not remember.  She agreed that no doctor had ever
diagnosed her with a dislocated shoulder.

[72]        
She agreed that at that visit she told Dr. Fyfe she “had had difficulty
since returning to work”, but clarified in her evidence that she was referring
to her return to work in the past May and June, not September as she had not
yet commenced working for the school year.  She did not return to work as she
was scheduled to do on September 7, 2004.

[73]        
She testified she again applied for CPP benefits and benefits from the
Health Care Trust, but her claims were denied.

[74]        
She acknowledged that in her application to the Joint Sick Leave Trust
Benefit Plan, which was dated October 28, 2004, she wrote:

Last January 7^th/04
fell and broke elbow.  In March had surgery to fix it.  At that time, the
doctor realized that shoulder was dislocated (due) to fall and went unnoticed
for three months and now waiting to have more surgery.

[75]        
She also wrote in her application as follows:

Fell on front steps due to
unknown black ice.  Broke left elbow.  At time when treated at RCH x-rays were
only done for elbow.  In August went to doctor the pain in shoulder continued
to be increasing and extremely more painful.

[76]        
She said the medications she was on at the time – dexedrine and efflexor
– caused her to believe “weird things”, like there was black ice.

[77]        
She agreed she did not return to work until October 2005, over a year
later.  She also agreed she was going through significant
emotional/psychological difficulties throughout that period.  Dr. Fyfe noted in
her clinical records on September 23, 2004 that the plaintiff was “histrionic
and scattered” and there was “more to this history”.

  The Evidence of Dr. Fyfe

[78]        
Dr. Fyfe noted in her medical legal report dated October 17, 2005 that
“Ms. Hunter returned on September 23, 2004, complaining of a rash on her
finger and requesting refills on medication she had not previously disclosed to
me.”

[79]        
Dr. Fyfe had an x-ray done of Ms. Hunter’s shoulder following her
appointment on September 4, 2004.  The x-ray report concluded as follows:

LEFT SHOULDER:

There is a suggestion of some
mild narrowing of the shoulder joint, and some minimal osteophyte formation at
the inferior aspect of the glenoid acetabulum, suggestive of, but not
diagnostic of, early degenerative change.  No other significant bony or joint
abnormality is demonstrated.  The acromio-clavicular joint has not been well
visualized.

There is no evidence of
dislocation at the present time.

[80]        
Dr. Fyfe referred the plaintiff to Dr. Andrew Hepburn, an orthopaedic
surgeon who saw her on November 30, 2004.  In his consultation report, Dr.
Hepburn noted that the plaintiff said “she dislocated her shoulder when she
fell down some icy steps in January 2004”.  He noted that it was impossible to
examine her “as she felt any movement of any kind in her shoulder was too
painful to tolerate.”

[81]        
He wrote:

It is astonishing to me that
Shannon’s shoulder was dislocated for three months.  I am not sure what
happened at the time of surgery when Dr. Perey reduced it, nor am I certain as
to why Shannon was not followed up by Dr. Perey.

[82]        
Dr. Hepburn concluded a referral back to Dr. Perey was in order.

[83]        
Dr. Fyfe in her evidence agreed that the plaintiff’s presentation was
“unusual”.  She agreed that the existence of a law suit is something to be
aware of in light of the presentation of the plaintiff and that there can be
other issues of “secondary gain” which inspire complaints such as care,
attention and sympathy from family and friends as well as medical attention. 
She agreed “work avoidance” can sometimes be a motivation in a patient’s
presentation, or the seeking of some accommodation, disability payments,
reduced expectations for under performance, and as well, if there is a
psychological problem which is difficult to talk about, a person may feel it is
easier to “sell” a physical problem rather than a psychiatric one.

[84]        
Dr. Fyfe described that latter factor as “a very common presentation in
practice”.

[85]        
She also agreed the prospect of financial compensation through
litigation could be a motivator for injury/pain complaints.

[86]        
Dr. Fyfe noted in her clinical notes of September 23, 2004 that the
plaintiff was “histrionic and scattered” and she expressed concern that she did
not have the complete story.  She agreed that the plaintiff was on Efflexor, an
antidepressant drug and Dexedrine, for ADHD, and that she advised the plaintiff
to stop the Dexedrine as she was not sure whether it was a cause of her
emotional upset.

[87]        
She noted by the end of October that the plaintiff was getting worse
emotionally and by mid November, she was having some psychotic episodes, to the
point where a friend of hers called, concerned about her psychological state. 
She agreed that throughout this period all of the plaintiff’s complaints
related to her psychological issues and she did not bring forward any muscular
skeletal complaints between September 2004 and June 2005.  She reported that
her emotional difficulties stemmed from a break-up with her partner.

[88]        
Dr. Fyfe agreed that the plaintiff was not capable of working for much
of that timeframe due to her emotional and psychological state.  She believed
she filled out a CPP disability form for the plaintiff relating to her mental
health in June 2005.

[89]        
As far as her muscular skeletal complaints were concerned, an MRI
conducted in September 2005 disclosed “no significant abnormalities”.  The last
reference to her psychological issues in Dr. Fyfe’s clinical notes was on
September 15, 2005 when the plaintiff reported she “was obsessed with bugs last
weekend”.

[90]        
In September 2005 the plaintiff also showed a good range of movement in
her left arm.  Dr. Fyfe last saw the plaintiff in 2005 on November 14^th
and did not see her again until January 2006.

[91]        
When she next saw her in January 2006, it was on January 9^th,
the day the plaintiff received a cortisone injection from Dr. Moola.  The
plaintiff reported increased pain and some numbness in her left arm.  She saw her
several more times in 2006, but the plaintiff did not make any muscular
skeletal complaints.  She did not see her at all in 2007, saw her several times
in 2008, but had no discussions with her concerning any muscular skeletal
issues.  In 2009 there were no muscular skeletal complaints from the
plaintiff.  In August and September 2009 on examination, the plaintiff had full
range of movement of her left arm and shoulder, reporting a little bit of
tenderness at that time.

[92]        
Dr. Fyfe testified in cross-examination that it was very rare for a
person to pass out solely from “excruciating pain”.

  The Plaintiff’s Friends and Family

[93]        
The plaintiff called several witnesses in support of her version of how
the slip and fall took place and its consequences to her.  Her now 18 year old
son Chris Hunter testified that he recalled the incident where she fell on the
front stairs.  He heard his mother call, and went outside to find her lying on
the stairs. She then asked him to go and get the defendant, Ms. Anderson. 
Later, after the defendant assisted his mother to get up and go in the house,
she told him to get some salt to spread on the stairs, so he got some table
salt and threw it on the stairway.  He said at the time he recalled it raining
and he saw no snow on the stairs and testified that he had shovelled the snow
off of the stairs at the defendant’s request the previous day for $5.

[94]        
He denied owning any skateboard shoes and testified his mother was
wearing his Nike running shoes.  After she was injured, he helped her take the
shoes off so he could wear them to school and he helped her put her shoes on.

[95]        
He testified that she was on the couch when he returned from school that
afternoon and had problems with her left arm.  He recalled that she was in a
cast and then had her arm in a sling.  He testified he did some of the
household chores after the accident, such as preparing food, doing the laundry
and cleaning the house.  He also testified that after the accident, his mother
did not play baseball or basketball with him and his younger brother or do bike
riding.

[96]        
In cross-examination, he agreed that his mother had read to him from
some statements concerning the slip and fall, but he couldn’t remember if what
she read to him was from her statement or not.

[97]        
He agreed he didn’t hear his mother screaming, he just heard her call
his name and that her eyes were open when he saw her.  He was uncertain as to
why she was wearing his shoes.

[98]        
He testified he didn’t have much recollection of shovelling snow off of
the stairs, but recalled there was snow on all the stairs all the way down.

[99]        
When he first saw his mother she was laying on the landing with “her
legs over the stairs”.

[100]     He
testified his mother was “passed out” when he returned to the scene with the
defendant and it was while the defendant was assisting his mother to go inside
that he put salt on the stairs.

[101]     Carlene
Lucke testified that she was a previous tenant at 3131 Raleigh from April 2001
to February of 2002 in the premises subsequently occupied by the plaintiff. 
She testified that while she lived there, her relationship with
Ms. Anderson became complicated, because Ms. Anderson accused her of abuse
and neglect of her foster children and threatened to call the Ministry.  She
testified that there was no neglect or abuse, but the accusations were the main
reason she left the house in February 2002.

[102]     She
testified to difficulties with the front stairs of the premises, if they were
wet or if there was snow or ice on them.  She said the stairs became slippery
and caused her daughter to slip and fall the day they moved in and caused
others to fall over the course of her tenancy.  She testified she suggested to
the defendant that she paint the stairs or put rubber adhesives on to avoid the
slipperiness.

[103]     In
cross-examination she agreed that she knew the plaintiff’s friend Darla Nordin,
having previously worked with her, but had not spoken to her since 2003 or 2004
and had not spoken to her about the incident.  She agreed that despite the fact
that people fell on the stairs, she herself took no steps to render them safer. 
She just told her children to be careful.

[104]     Darla
Nordin testified that she and the plaintiff had been friends since 1994.  She
heard about the slip and fall about a day later, when the plaintiff telephoned
her.  She testified the plaintiff could not do a lot for herself, so Ms. Nordin
helped her by buying clothing for the boys and helping with her monthly bills
and groceries.

[105]     She
testified that in previous years, the plaintiff had visited with her and her
husband at their cabin and had gone wakeboarding and tubing behind their boat. 
She testified that although the plaintiff visited their cabin in the summer of
2004, she “couldn’t do that stuff”.  According to Ms. Nordin, the plaintiff has
continued to complain of pain in her left arm, but it has “probably [become]
better over time”.

[106]     She
testified that in November of 2004 she took the plaintiff to the hospital after
receiving a telephone call from the plaintiff’s then landlord, who reported she
was “acting weird”.  She went over to the plaintiff’s and discovered she was
complaining of seeing “bugs” and did not “seem healthy”, so she took her to the
hospital.  She testified that that condition continued for a period, but has
since settled and she has seen no further signs of it.

[107]     She
testified the plaintiff has not yet repaid her the sum she spent to help her
out after the accident.  She was aware the plaintiff had psychological problems
arising from a breakdown of her relationship in 2003.  She believed that Ms.
Hunter’s psychological problems which arose in November 2004 lasted about a
year, but since then she has “picked herself up” and has been doing well,
particularly since 2006.

[108]     The
plaintiff’s friend, Giselle Hedrick also testified.  She picked her up from the
hospital emergency ward on January 7, 2004 after her slip and fall and took her
home.  She saw her from time to time after the accident and noted that she
couldn’t use her arm to do the things she previously was able to do.

[109]     She did
not remember any earlier occasion when the plaintiff was off work due to an
injury.  She testified she helped the plaintiff out for about two months after
the injury.  She did not spend much time with her beyond the fall of 2004
because of the plaintiff’s psychological problems.  She re-kindled the relationship
a few years later.

  The Engineering Evidence

[110]     The
plaintiff tendered two reports from Granville Airton, P. Eng. of Consulco
Engineering Inc., addressing the issue of the role, if any, which the stairs to
the complainant’s suite played in the accident at issue.  The reports are dated
October 11, 2006, and February 2, 2007, respectively.

[111]     Mr. Airton
visited the scene of the slip and fall initially in 2005 and later, on December
31, 2006.  On his first visit, he was denied access to the stairs to measure the
rises and runs to determine if they were reasonably similar in size and to test
the treads and the stoop with his slip resistance tester, to see if they were
“reasonably slip resistant”.  In the result, he was unable to conduct his test. 
He noted the surface of the stoop and stair treads consisted of red ceramic
tile.  He noted that at the time of his second attendance, the stairs and mid
landing had wooden guardrails around them and two of the treads had what
appeared “to be cementitious material on them”, all of which was installed
after his initial visit.

[112]    
He noted that when built, the stairs would have been subject to the
National Building Code, which provided: “Treads and risers shall have uniform
rise and run in any one flight.”

[113]    
His opinion was that a variation in rise and run of 5 mm or 3/16 of an
inch is a reasonable tolerance for a difference in size, as absolute uniformity
is an unachievable standard.  He hypothesized that the cementitious material
was added to the first and third treads of the stair, either because the stairs
were perceived to be slippery, or that there was “a substantial difference in
height between the associated risers and the ones adjacent.”

[114]    
As to the hand rail, he noted the relevant National Building Code
provided:

… a hand rail shall be provided
on at least one side of stairs less than 44 inches in width; and on two sides
of stairs 44 inches in width or greater.

[115]     In his
second report, Mr. Airton noted that when he re-attended the scene of the slip
and fall on December 31, 2006 and was permitted access to the stairs, he
attempted to measure the rises and runs of the stairs.  He did not conduct any
tests to measure the slip resistance of the red ceramic tile surface of the
stairs not covered by the cementitious material.  He noted that because of the
application of the layer of cementitious material, it was “impossible to
measure the original rises and runs on the stair” using the tools he had.  What
he did instead was to measure “the rise height adjacent to the riser itself”
and the thickness of the cementitious material (which varied along the length
of the treads) at the left side.  He suggested based on his various
measurements “a variance between the top and second riser … was about 1 ¼
inches, between the second and third from the top, 1 3/8 inches and between the
bottom and second from bottom, also about 1 3/8 inches.”  He stressed the
measurements were only approximate and recommended a removal of the layers of
cementitious material to enable an accurate measurement.

[116]    
He concluded:

The variation between some of the
risers on the stair was in the range of 1 ¼” which is very substantial and
makes the stairs unsafe.  However I stress this is based on only approximate
measurements.  As a result I very strongly recommend that in order for me to be
able to do an accurate check of the uniformity of the risers and runs prior to
the installation of the layers of cementitious material, the layers be removed,
if this is possible.

  The Evidence of Dr. Moola

[117]     Dr. Farhad
O. Moola is an orthopaedic surgeon with a specialty in shoulder and upper
extremity surgery, who began his clinical practice in September 2005 and first
saw the plaintiff on October 5, 2005.  He continued treating her in relation to
her left shoulder complaints until the end of July 2007.  He prepared a medical
legal report dated May 20, 2007 and subsequently re-examined and re-evaluated
the plaintiff on December 18, 2009 for the purpose of a second updated medical
legal report, prepared the same day.

[118]     In his
first report, Dr. Moola noted that the plaintiff was referred to him by
Dr. Bertrand Perey, who performed surgery on her elbow on March 12, 2004,
following which she complained of left shoulder pain.  Dr. Moola noted that the
plaintiff had “pre-existing medial sided left elbow pain” which was exacerbated
“when she fell down some icy steps”.

[119]    
Dr. Moola’s initial examination showed a limited range of motion of the
left shoulder “with acute tenderness both anteriorly and posteriorly within the
shoulder to light touch.”  He diagnosed “a primary frozen shoulder secondary to
the trauma sustained on January 7, 2004” and prescribed cortisone shots and
physiotherapy.  An initial cortisone shot was administered on February 7,
2007.  Dr. Moola reviewed its effects on April 3, 2007 with the plaintiff, who
told him the injection provided no relief.  Two days later, Ms. Hunter was
admitted to Royal Columbian Hospital, complaining of severe shoulder pain.  Dr.
Moola reported:

While at work, a child with
special needs swung a door open, which she was holding with the handle.  Her
left shoulder was thus forcefully abducted and externally rotated, causing
severe debilitating pain.  Ms. Hunter reports passing out due to the severity
of her symptoms.

[120]     According
to Dr. Moola, he visited the plaintiff in hospital and ordered a repeat left
shoulder distention arthrogram, which was performed resulting in a considerable
improvement in her symptoms.  She carried on with physiotherapy until June 7,
2007, “making excellent gains” until her improvement plateaued.  On July 18,
2007 Dr. Moola performed “a diagnostic arthroscopy of the shoulder with
manipulation and capsular release.”  She was referred back to physiotherapy,
“to maintain range of motion improvements realized during the surgical
procedure.”  Dr. Moola predicted significant improvement following the surgical
intervention noting “no further pathology was found … to suggest a further
source of continued pain.”

[121]     In his
second report dated December 18, 2009, Dr. Moola noted that the plaintiff was
admitted to Royal Columbian Hospital on April 5, 2007 after she fell in the
school parking lot when she tripped over a log, two days after the incident
when the child swung the door open which she had her hand on.  He noted that
Ms. Hunter was able to return to work after her July surgery in September
2007, but that from April 5, 2007 to July 1, 2007 she was covered by WorkSafe
BC, when it was judged she had returned to her pre (parking lot) injury level
of function.

[122]     Dr. Moola
noted the plaintiff reported issues of “cold weather intolerance” problems with
repetitive motions such as sweeping, vacuuming, lifting over her head and fully
extending her arm.  She reported that her range of motion “has been plateaued
for two years”, but the surgery improved it and lessened her pain “quite
considerably”.

[123]     He noted
she reported that she has occasional bouts of numbness and tingling in her hand
and increased pain if she bumps her elbow.  She reported taking Advil nine
times daily and the occasional Tylenol #3.

[124]     Dr. Moola
noted that the plaintiff was initially diagnosed “with ulnar neuritus and
underwent a submuscular transposition of the ulnar nerve.”  In the result, her
elbow had “a residual function loss of motion” with “no weakness in the hand”. 
He concluded she “developed a secondary frozen shoulder which responded
temporarily to … distention arthograms and ultimately required surgical
release of the capsular adhesion.  This has resulted in approximately 90 to 95%
recovery in shoulder range of motion and she has considerably less pain in the
shoulder than she did two years previously.”  He recommended further
physiotherapy but no further surgical intervention regarding her shoulder or
elbow.  He did not foresee the development or arthritis or a future inability
to earn an income “as long as she can continue to work at this job and they
continue to accommodate for her disability.”

[125]     He agreed with
counsel for the defendant that ulnar neuritis is a condition involving
irritation or inflammation, not necessarily damage.  He agreed there was never
an indication that the plaintiff had broken her arm.  He agreed a dislocated
shoulder is usually associated with considerable pain and would present
immediately.  He noted that in his report of September 13, 2005, Dr. Perey
noted the plaintiff “appears to have abnormally increased pain behaviour with
motion about her elbow”.  He agreed that patients will show pain behaviour for
a variety of non-medical reasons, one of which is the presence of litigation. 
He concluded that,  notwithstanding her report to Dr. Hepburn in November 2004,
the plaintiff did not have a dislocated shoulder.  He agreed the MRI of her
shoulder was normal.  In his consultation report dated April 3, 2007, Dr. Moola
agreed he added an addendum when he learned of the plaintiff’s admission to
Royal Columbian Hospital on April 5, 2007, reporting that the emergency
physician who admitted her, opined that the pain she reported “was out of
proportion to what one might expect”.  Dr. Moola agreed the plaintiff’s
admission to Royal Columbian Hospital for 15 days was a long stay, given the
nature of her complaints, but the purpose was to investigate the cause of her
pain, or try to find a way to control it.  He agreed the reason for her
admission was “an inability to cope with the pain”.  He also agreed she got
relief from the cortisone injection he gave her on April 17, 2007 and was
discharged on the following day.  He saw her again on April 24^th and
was “trying to put together her complaints” as “there was no structural
abnormality to explain them.”

[126]     Ultimately,
on July 18, 2007, Dr. Moola performed the surgical procedure which gained her
some twenty percent of forward movement in her shoulder.  He agreed there was a
tear caused by the manipulation under anaesthetic which was a necessary effect
of improving her range of motion.  He saw her again on August 28, 2007 when she
reported she was back to work and the pain “was manageable”.  He saw her again
on January 24, 2008 and she appeared to be doing extremely well.  He testified
she perhaps had some residual problems but was primarily seeking reassurance. 
He did not see her again until December 18, 2009 to evaluate her in support of
a medical legal report.

[127]     At the
time he wrote the December 18, 2009 medical legal report, he had read Dr.
Fyfe’s report of October 17, 2005 and was aware of the plaintiff’s
psychological difficulties and knew that she had incorrectly reported to
Dr. Fyfe that she had broken her arm and dislocated her shoulder.  He
agreed she displayed no motor strength loss to her left hand and would not, as
reported by Ms. Allende, as a result of her testing, be in the first percentile
for hand strength.

  The Evidence of Natalie Allende

[128]     Natalie
Allende is an occupational therapist who conducted a physical capacity
evaluation on Ms. Hunter to determine her physical strengths and limitations
regarding employability.  She submitted a report on her findings dated December
11, 2009.

[129]     Ms.
Allende also conducted a cost of future care assessment and submitted a second
report reflecting her conclusions dated January 13, 2010.

[130]     In
conducting her evaluations of Ms. Hunter, Ms. Allende relied in part on the
information contained in the medical reports of Dr. Moola and Dr. Fyfe and the
history provided to her by Ms. Hunter.  She assumed the information from those
sources was accurate.

[131]     Ms.
Allende’s evaluations of Ms. Hunter were based partly on her complaints of pain
and reports of what she could and could not do and partly on what she observed
in the two sessions, the first of which was on November 30, 2009 for the
physical capacity evaluation.  That session was for a period of 6 hours and 40
minutes.  The second session relating to the cost of future care assessment
took place on December 2, 2009 for 3 hours and 15 minutes.

[132]     Ms.
Allende noted that the plaintiff reported pain increases in her wrist (right
more than left), neck, left shoulder, both elbows, mid back, low back, knees,
ankles and feet, while performing reaching tasks at all levels.  She noted the
plaintiff reported lower extremity pain associated with crouching and fatigue
in her right shoulder with overhead reaching.

[133]     With “desk
top reaching” she reported pain in her left shoulder and elbow, and pain in her
neck while looking down at her work station.

[134]     Ms.
Allende noted that the plaintiff demonstrated poor grip strength with both
hands, with scores placing her in the 15^th percentile in the right
hand, and below the 1^st percentile in the left hand.

[135]     Testing of
her lifting capacity “was limited due to reports of left elbow locking,
increased pain and reaching self-perceived maximum limits.”

[136]     Ms.
Allende noted that the plaintiff told her that she “suffered from depression
during the year following her accident since she was off work and had
significant financial difficulties”.  She was not aware of any issues of
depression suffered by the plaintiff before January of 2004 or of any
psychological reports.

[137]    
Ms. Allende concluded Ms. Hunter was “employable” as opposed to
“competitive”.  She defined those terms as follows:

Competitive:  There are no
physical activity factor limitations which restrict the individual’s ability to
access job titles.  They would therefore be expected to work in any occupation
for which they are qualified within their strength category.

Employable:  The individual meets
most of the requirements of work within given strength categories, but has
limitations which restrict access to the full range of occupations for which
they are otherwise qualified.  They may require a sympathetic employer,
modified work hours or environmental/ergonomic intervention.

[138]    
She found a number of restrictions which placed Ms. Hunter in the
employable category, which she set forth as follows:

1.         Bending.  Ms Hunter is
restricted to performing repetitive bending on an occasional basis.

2.         Crouching.  Ms. Hunter
is restricted to performing repetitive and prolonged crouching on an occasional
basis.

3.         Ladder climbing.  Ms.
Hunter is restricted from ladder climbing on any basis.  She is also restricted
from performing activities that require higher level balance skills.

4.         Reaching.  Ms. Hunter
is restricted to performing reaching on an occasional basis.

5.         Handling.  Ms. Hunter
is restricted to performing handling on an occasional basis.

6.         Strength.  Ms. Hunter
is restricted from handling weights heavier than the Limited NOC, i.e. 0-5 kg.

[139]    
She concluded:

Ms. Hunter does not meet the
requirements for strength or upper limb coordination that is required for the Teacher’s
Aide position.  She does, however, meet the standard for sitting, standing and
walking.

[140]    
She concluded as follows:

Ms. Hunter is currently working
30 hours per week in this position and has done so since September 2007.  It is
the evaluator’s opinion that Ms. Hunter is able to work in this position
because the student that she works with does not require physical assistance
and she consumes significant amounts of pain medication on a daily basis, i.e.,
9 Advil per day.  Ms. Hunter would be unable to work with a child who requires
physical assistance such as transferring in and out of a wheelchair.  In
addition, she would be unable to work with a child who may need to be
restrained because of her difficulties with forceful use of her left arm and hand. 
The evaluator also notes that she has poor dynamic balance and this could
interfere with her ability to safely restrain someone.

With respect to Ms. Hunter’s
part-time employment at the group home as well as within her own home as part
of the “Home Share” program, the position is classified in the National
Occupational Classification Systems as a Community and Social Service Worker,
#4212 which is considered within the limited strength category and primarily
requires sitting and negligible amounts of limb coordination.  Ms. Hunter meets
the physical job demands of this job.  Based on this evaluator’s experience,
workers in this type of job are sometimes required to assist clients with their
transfers as well as push and pull manual wheelchairs.  Based on Ms. Hunters
left shoulder and elbow limitations, she would be unable to safely assist with
transfers or perform heavy pushing and pulling of wheelchairs.  This is
consistent with the type of work that Ms. Hunter is performing at the group
home and as part of the “Home Share” program.

A detailed analysis of the job
titles for which Ms. Hunter would qualify, within her physical abilities and
restrictions, and with consideration to other factors such as her interests,
education and aptitudes, can be provided by a Vocational Consultant.

Ms. Hunter’s feasibility for
competitive employability as outlined is based on her present physical
capacity.  her prognosis is documented in the report of Dr. Moola (August 20,
2007) wherein he states that his expectation “… is for significant
improvements following the surgical intervention [diagnostic arthroscopy of the
shoulder with manipulation an capsular release] …”.

[141]     Ms.
Allende’s cost of future care report was based on an interview with
Ms. Hunter on December 2^nd, 2009 at her home “to assess her
activities of daily living and review her abilities in the context of her
home”.  The evaluation took place over 3 hours and 15 minutes.

[142]     She based
her evaluation on what Ms. Hunter reported to her and the medical information
she had from Dr. Fyfe’s 2005 report and Dr. Moola’s two reports. She was aware
Ms. Hunter was working approximately 60 hours per week at the time of her
assessment.  She agreed that Ms. Hunter’s restrictions and what she could and
could not do, might alter with time.

[143]     She agreed
that the recommendation she made for Ms. Hunter’s future care were partly based
on what Ms. Hunter told her, but also on her assessment of her while in the
house.

[144]     Ms.
Allende’s recommendations were extensive and partly based on a “pain disability
index” which in turn was based on a questionnaire outlining seven activities
and seeking Ms. Hunter’s evaluation of the extent to which she was disabled
from those activities.  She also relied on a role checklist in which Ms. Hunter
identified the roles which were most valuable to her.

[145]    
In connection with those aspects of her report, Ms. Allende recorded as
follows:

ROLE CHECKLIST

Ms. Hunter was given a
questionnaire outlining 13 roles.  She was asked to identify the major roles in
her life, her perceived ability to participate in those roles presently and her
plan to participate in these roles in the future.  She identified her present
roles as worker, volunteer, care giver, family member, friend, housekeeping,
and hobbyist/amateur.  She identified that, in the future, she would like to
participate in the roles of volunteer, care giver, partner/spouse, family
member, friend, housekeeper, home maintainer, and hobbyist/amateur.

She identified the roles of
volunteer, care giver, family member, and hobbyist/amateur as being very
valuable to her at the present time.

PAIN DISABILITY INDEX

A questionnaire outlining 7
activities was presented to Ms. Hunter.  She was asked to rate her ability to
complete these activities on a 10-point scale, with no disability being
identified as 0 and total disability being identified as 10.  Ms. Hunter
described that she was:

a.         40-percent disabled in
self-care activities;

b.         40-percent disabled in
life-support activities, which includes sleeping, eating and breathing;

c.         50-percent disabled in
social activities and sexual behavior;

d.         60-percent disabled in
family/home responsibilities.  This category includes all activities related to
home or family;

e.         70-percent disabled in
recreational activities.  This category includes hobbies, sports and other
similar leisure interests;

f.          70-percent disabled
in occupational responsibilities.  This category includes all activities
related to one’s job.

[146]     Ms.
Allende also relied on the plaintiff’s self-report on tasks associated with personal
care, home management, leisure activities and performing various functions. 
Ms. Hunter also completed a report on her pain scale reflecting her pain levels
before and after activities.

[147]     Ms.
Allende also made observations of Ms. Hunter performing functional activities
including transfers, bed mobility, personal care and house cleaning activities.

[148]    
In the result she made her extensive recommendations for services
including

EQUIPMENT:

Personal Care

1.         Long
handled body brush.  This evaluator recommends that Ms. Hunter continue to
utilize a long handled body brush in order to compensate for her decreased left
shoulder and left elbow range of motion and difficulties with reaching.  This
item can be purchased at London Drugs (www.londondrugs.ca,
November 2009) at a cost of $4.99 – $6.99 plus G.S.T. and P.S.T.  Replacement
time is estimated to be 5 years.

2.         Easy
grip nail clippers.  This evaluator recommends that Ms. Hunter purchase nail
clippers with a built up handle to facilitate her ability to cut her toe
nails.  Her grip strength is limited and a built up handle would reduce the
amount of force that she would have to exert in order to cut her nails.  This
item can be purchased at Sammons Preston Canada (www. sammonspreston.ca,
December 2009) at a cost of $31.05 plus G.S.T. and P.S.T.  Replacement time is
estimated to be 10 years.

Mobility

3.         Grab
bars.  Ms. Hunter would benefit from the installation of two grabs in her
shower to improve her safety with transferring and while bathing.  These could
be purchased and installed through The Rehab Shop (604-434-8300) at a cost of
$28.00 to $47.00 plus $40.00 installation cost per bar (November 2009).  The
total cost for this would therefore be $118.00 to $134.00.  These bars would
need to be replaced in the event that Ms. Hunter was to move residences.

Home
Management

4.         Shopping
cart.  This evaluator recommends that Ms. Hunter utilize a personal shopping
cart with climber wheels that she could use to move groceries and other items
from her car to her house.  The wheels would be beneficial because of the
flight of stairs she would climb from the ground level to the kitchen.  This
item can be purchased from Canadian Tire (www.canadiantire.ca,
November 2009) at a cost of $44.99 plus G.S.T. and P.S.T.  Replacement time is
estimated to be 8 years.

5.         Food
processor.  This evaluator recommends that Ms. Hunter utilize a food processor
to facilitate chopping of food.  A mid-range food processor ranges in cost from
$49.99 – $99.99 plus G.S.T. and P.S.T. (www.canadiantire.ca,
November 2009) at a cost of $19.99 plus G.S.T. and P.S.T.  Replacement time is
estimated to be 10 years.

6.         Jar
opener.  This evaluator recommends that Ms. Hunter utilize an automatic jar
opener in consideration of her decreased left wrist strength and poor grip
strength.  This item can be purchased from Canadian Tire (www.canadiantire.ca, December 2009) at a
cost of $19.99 plus G.S.T. and P.S.T.  Replacement time is estimated to be 8
years.

Leisure

7.         Gym
pass.  Ms. Hunter would benefit from participating in an independent
cardiovascular and strengthening exercise program on an ongoing basis.  A gym
pass would also allow her to have access to a hot tub which she has reported
helps her to manage her pain.

 Community-based
fitness centres such as the local recreation centres, the YMCA, Fitness World
et cetera range in price from $350.00 – $600.00, including G.S.T.

Pain
Management

8.         Hot/Cold
Pack.  Ms. Hunter reported decreased pain with the use of a heating pad and
cold pack.  It is reasonable to assume that she will continue to use this as a
pain management strategy.  A hot/cold pad can be purchased from London Drugs
(as per web site, November 2009).  The cost for this item is $25.99 plus G.S.T.
and P.S.T.  Replacement time is estimated to be 2 to 3 years.

9.         Water
pillow.  Ms. Hunter reported that she began sleeping with a water pillow in
2005 as recommended by her physiotherapist.  This evaluator recommends that she
continue to utilize this pillow for comfortable sleep positioning and
management of her symptoms.

 A
water pillow can be purchased from Regency Medical Supplies (www.regencymed.com, January 2010) for a
cost of $69.99 plus G.S.T. and P.S.T.  Replacement time is estimated to be 2 to
3 years for hygiene considerations.

10.       Memory
foam.  Ms. Hunter reported that she purchased a memory foam overlay for her
mattress in 2007 and has found this item to be helpful for positioning and
support during sleep.  This evaluator recommends that she continue to utilize a
memory foam overlay for comfortable sleep positioning and management of her
symptoms.

 A 2”
inch memory foam overlay can be purchased from The Foam Shop (604-464-7411,
January 12, 2010 for a cost of $349.00 plus G.S.T.  Replacement time is
estimated at 8 – 10 years.

SUPPLIES:

1.         Non-prescription
Medication.  Based on Ms. Hunter’s present use of non-prescription medication,
consisting of nine Advil (200 mg) per day and one Melatonin (90 mg) tablet per
night, and using costs provided by London Drugs (ww.londondrugs.ca, January
2010), it is calculated that the yearly cost for Ms. Hunter at this time is
$364.83 plus G.S.T.

 It is
not possible for me to predict Ms. Hunter’s future needs for non-prescription
medication.  I recommend that a physician be consulted.

2.         Prescription
Medications.  Based on Ms. Hunter’s present use of prescription medication,
consisting of Tylenol 3, and using costs provided by Shopper’s Drug Mart
(604-468-8814), the yearly cost for Ms. Hunter at this time is calculated as
ranging from $18.74 – $37.48.

 NOTE: 
This is without any Pharmacare subsidy.  In order to calculate the cost with
Pharmacare subsidy, Ms. Hunter’s annual net family income needs to be taken
into consideration, and reference made to the tables below.  The actual cost to
Ms. Hunter cannot be calculated without knowing her actual anticipated future yearly
income, as would be recorded on an Income Tax Return (Net Income, as recorded
on line 236).  This calculation could be completed by an Economist, once Ms.
Hunter’s anticipated future yearly income is known.

 I am
not qualified to predict Ms. Hunter’s future needs for prescription
medication.  I recommend that a physician be consulted.

 Pharmacare policy is as
follows (and a more specific calculator can be found at the BC Government web
site) http://www.health.gov.bc.ca/pharmacare/plani/calculator/calculator.html.

[149]     She
attached a price summary as Appendix B to her report, which summarized the cost
of the services and equipment that she identified Ms. Hunter would require as a
result of her physical disabilities.

  The Evidence of William Stanus

[150]     William Stanus
has a degree in psychology and is pursuing his M.A. in that field.  He
performed a vocational assessment of Ms. Hunter by interviewing her and having
her complete a vocational test battery on January 4, 2010.  He also read the
report of Dr. Fyfe dated October 17, 2005 and Dr. Moola, dated October 20, 2007,
and he read and relied on the physical capacity evaluation done by
Ms. Allende on December 11, 2009.

[151]     He agreed
in cross-examination that he did not question the plaintiff about her report to
Dr. Fyfe that she had broken her arm and dislocated her shoulder and he did not
question her reliability based on that apparent misreport.  He assumed that she
was off work in 2004 and 2005 because of her elbow and shoulder injuries and
had no indication it was for any other reason.  He noted that Ms. Hunter
reported ongoing pain in her left shoulder and arm which was aggravated when
she engaged in repetitive activities.

[152]     According
to Mr. Stanus’ report, the plaintiff was administered an IQ test and her
results put her in the low/average range.  Mr. Stanus reported “the scores
suggest the plaintiff will likely experience difficulty with post-secondary
training which is consistent with her diagnosis of dyslexia.”

[153]     Mr. Stanus
concluded on the basis of his assessment that the plaintiff’s “employability
has been compromised by the sequelae of the 2004 accident”.

[154]     He agreed
he took into account Ms. Allende’s report and that that report referred to
limitations on Ms. Hunter which were apparently unrelated to the accident.

[155]     He noted
that Ms. Hunter told him that she could not work with children with high
physical needs or students with behavioural difficulties.  He testified he
thought that limitation began in September 2007 after the surgery on her
shoulder.  He agreed that in January 2010 when he interviewed Ms. Hunter she
was working about 62 hours a week, which was about twice as many hours as she
had been working when the accident occurred.

[156]     In his
report, Mr. Stanus made no recommendations for retraining in light of Ms. Hunter’s
plans to remain in her present jobs and her expressed lack of intent to pursue
further training.

THE DEFENDANT’S CASE

[157]     The
defendant testified on her own behalf.  She is 61 years old and has been on
disability insurance since 2003 as a result of health issues.  She previously
worked with mentally and physically challenged adults through an agency called
“Young and Husband”.  She bought 3131 Raleigh Street in 1999 and initially
lived there with her daughter, Georgina.

[158]     Since
owning the house, she neither experienced nor heard of any problems relating to
the stairs to the main entry.  She denied that they were slippery and was not
aware of any problem with the rise and/or the run.

[159]     She knew
Carlene Lucke from work and rented the upper floor of the premises to her, but
according to the defendant, Ms. Lucke fell into arrears and moved out without
notice and without paying her arrears in 2002.  She denied expressing concern
about Ms. Lucke’s daughter or foster children or reporting her to Social
Services.  She denied ever having any conversation with Ms. Lucke concerning
the stairs being slippery or requiring a non-slip surface to be applied.  She
testified she was not adverse to fixing problems with the house and would have
fixed the stairs, had any defects been brought to her attention.

[160]     She first
met the plaintiff shortly before she signed the lease on February 26, 2003.

[161]     When the
plaintiff rented the premises, the defendant was suffering from a torn meniscus
in her right knee, and also did not have full use of her right arm.  As a
result, she agreed to discount the rent to Ms. Hunter by $100 per month when
Ms. Hunter told her she was handy and agreed to do chores around the
property.  She testified the stairs at issue were exclusively used by the plaintiff
and her boys.  The defendant had a separate entrance on the side of the house
to the suite she occupied in the basement.

[162]     In the
summer of 2003 the defendant and her daughter helped the plaintiff draft her
resume.  It was her understanding the plaintiff was looking for an office type
job at that time.  She had recently broken up with her boyfriend and was upset
and distraught about that.  That was why she moved into the premises at 3131
Raleigh Street.

[163]     At some
point, the plaintiff told the defendant that she had won the Reader’s Digest
Sweepstakes and she traded in her vehicle for a brand new truck, which the plaintiff
said cost over $40,000.

[164]     Later, it
appeared that the plaintiff was struggling to make ends meet and she talked
about hurting herself to make a claim for insurance.  She apparently talked
about severing her finger.

[165]     The
defendant testified that she told the plaintiff she “didn’t want to do that”,
but the plaintiff said she was desperate.

[166]     She agreed
that she gave notice to the plaintiff on January 1, 2004 ostensibly because
Georgina was moving in, but that that was not true.  The next tenant was in
fact a young woman who was related to the defendant and whose marriage had
broken up.  She did not move in until July 2004.

[167]     She said
she gave notice to the plaintiff because there was always concern about rent
and she was concerned that the plaintiff was not taking care of the premises. 
She testified that when the plaintiff got the notice, she was upset and told
the defendant she “wasn’t going to be nice any more”.

[168]     The
defendant agreed that it snowed the evening of January 6, 2004, but she denied
that she asked the plaintiff or her son to clean off the stairs, or that she
gave Chris $5 to do so.  She testified she did not even think about the stairs
and testified that during the ten months she had lived there, the plaintiff
never suggested that the stairs were slippery.

[169]     On the
morning of January 7, 2004 the defendant heard someone banging on the door to
her suite, at the bottom of the stairway from the main entrance to the front
door.  Chris asked her to go upstairs because his mother was “lying down on the
stairs”.  It took her about three to five minutes to get there.  When she got
there, the boys were upstairs, but they had not helped their mother up.  She
was lying on the landing.  The landing was wet and there was ice and snow on
the stairs.

[170]     She
testified the plaintiff’s eyes were closed and she did not respond to the
defendant calling her name, so the defendant gave her a firm pat on the cheek. 
She testified the plaintiff responded immediately and said she had slipped on
the stairs.  The defendant testified that the plaintiff did not seem confused
or disoriented.

[171]     She
testified that she helped the plaintiff up by lifting her under her arms.  The
plaintiff did not complain of pain.  She went into the house and sat on the
stairs leading up to the main floor.  She was wearing skater shoes with the
heels flattened down.  They had no tread.  They were not the Nike running shoes
which were produced by the plaintiff and made an exhibit at the trial.  She
testified that Chris did not take the shoes off of her and put them on
himself.  She testified the plaintiff asked her to drive the boys to school,
but she did not ask her to call 911 or to drive her to the hospital enroute to
the school.  She said at the time she left with the boys to drive them to
school, the plaintiff was in her pyjamas and housecoat.  When the defendant
returned, the plaintiff was dressed and ready to go in a jacket with a
different pair of shoes on.

[172]     The
defendant commented to the plaintiff that she was handling it well and she said
“oh, I must be in shock”.

[173]     The
plaintiff did not ask her for assistance in the next few weeks.  On January 22,
2004 the defendant obtained the statement from the plaintiff because she was
concerned about the details of what the plaintiff was saying had occurred and
wanted to get it written down.  The plaintiff dictated and the defendant’s
daughter Georgina typed and printed out the statement and the plaintiff signed
it after reading it over.

[174]     The
defendant testified the plaintiff told her everything was fine, now she would
not have to move out, and all the defendant had to do was to support her in her
lawsuit.  The defendant told her it did not work that way.  She said a person
named Dave Cardwell was there at the time.

[175]     She
testified she notified her insurance company and they got her to do some things
to the stairs, including putting in a railing and making the rise and run equal
for each step.  The repairs were done before her next tenant moved in.

[176]     In
cross-examination, Ms. Anderson was asked about her relationship with Ms. Lucke
and testified it was good until Ms. Lucke moved out without paying her arrears
of rent.  She agreed that after the accident her insurer required her to bring
the stairs into compliance with the building code by adding about half an inch
to the rise of the stairs and building railings.  She said she achieved “over
compliance” with the code.

[177]     She agreed
that in addition to the January 1, 2004 eviction notice, she also gave the
plaintiff another notice, based on her failure to pay rent.  Although it was
dated January 3, 2004, she agreed that she gave the plaintiff a receipt for her
January rent on January 1, 2004.  She thought she must have given the plaintiff
the second notice based on her failure to pay rent in February 2004, not
January.

[178]     The
plaintiff agreed she would move out at the end of February.  The defendant did
not have much contact with the plaintiff after January 7, 2004 and did not see Darla
Nordin or her brother coming over to assist the plaintiff.

[179]     Ms.
Anderson was cross-examined about her suspicions of the plaintiff’s claim, but
she agreed she did not report her suspicions to the insurer and “would have
told them” that Ms. Hunter had hurt her arm.

[180]     She agreed
she helped the plaintiff by taking the boys to school and then returned home
and drove the plaintiff to hospital and stayed with her for 20 – 30 minutes,
until she went into the Emergency Department.  She agreed she had a friend of her
daughter’s take photographs of the shoes the plaintiff was wearing when she
fell, because she “was concerned that things weren’t as they should be” but she
threw away the photographs.

[181]     She said
the ice on the stairs was not her responsibility and denied asking or paying
Chris to clean them off.  She denied seeing the plaintiff or Chris the night
before at all.  She testified she was sick in bed and was too ill to do
anything about the stairs in any event.

[182]     The
defendant agreed that when Ms. Hunter gave her version of the events, which was
reduced to writing on January 22, 2004, she was present and heard her say that
she and her son shovelled the stairs the night before and that after the fall,
her son Chris salted the stairs.  She agreed that she did not challenge the
plaintiff’s version of the events because that was what she said had happened. 
She signed the statement as a witness, not to attest to its veracity.  She did
not see the plaintiff the night before or see what occurred.

[183]     She was
cross-examined about prior evidence given in her examination for discovery to
the effect that she gave the plaintiff notice on January 3, 2004 because of a
failure to pay rent, but testified the date she put on the notice and her recollection
must have been wrong because it was February when the plaintiff failed to pay
her rent on time.

DISCUSSION AND CONCLUSIONS ON LIABILITY

[184]    
In the present case, the plaintiff asserts that the defendant’s
liability rests on two alternate foundations.  The first is that the defendant
was negligent in her failure to comply with the provisions of the Occupiers
Liability Act, particularized in her further amended statement of claim as
follows in para. 4:

4.         The accident was caused by the negligence of the
Defendant occupier contrary to the terms of the Occupier’s Liability Act,
R.S.B.C. 1996, c. 337, particulars of which are as follows:

(i)         in
leaving a hazard or failing to maintain the stairway in such a condition as it
may be safely used by users including the Plaintiff;

(ii)        in
failing to ensure the stairs were constructed or maintained in compliance with
the building code;

(iii)       in
failing to ensure there was a hand rail in place;

(iv)       in
failing to ensure the stairs were in good repair;

(v)        in
failing to warn the Plaintiff of any hazards;

(vi)       in
failing to ensure that snow and ice did not create a hazard by which the
Plaintiff could be injured;

(vii)      in
failing to repair the stairs at 3131 Raleigh Street when she knew or had cause
to know they were dangerous;

(viii)     in failing to provide a safe
alternative means of access/egress to the Plaintiff.

[185]     The
plaintiff asserts the second basis for the defendant’s liability and damages is
for breach of the tenancy agreement, arising from a failure to comply with the
Coquitlam Building Bylaw and the BC Building Code by failing to include
handrails, by having stairs built in an irregular fashion which were
non-compliant as to tread surface, height of riser, depth of tread, and constituted
an unsafe walking surface.

[186]    
The terms of the Occupiers Liability Act relied on by the
plaintiff so far as applicable, read as follows:

1.         In this Act:

“occupier” means a person who

(a)        is in physical
possession of premises, or

(b)        has
responsibility for, and control over, the condition of premises, the activities
conducted on those premises and the persons allowed to enter those premises,

and, for this Act, there may be
more than one occupier of the same premises;

…

2.         Subject
to section 3(4), and sections 4 and 9, this Act determines the care that an
occupier is required to show …

3.         (1)        An
occupier of premises owes a duty to take that care that in all the
circumstances of the case is reasonable to see that a person, and the person’s
property, on the premises, and property on the premises of a person, whether or
not that person personally enters on the premises, will be reasonably safe in
using the premises.

(2)        The duty of care
referred to in subsection (1) applies in relation to the

(a)        condition of the
premises,

(b)        activities on the
premises, or

(c)        conduct of third parties
on the premises.

(3)        Despite subsection (1),
an occupier has no duty of care to a person in respect of risks willingly
assumed by that person other than a duty not to

(a)        create
a danger with intent to do harm to the person or damage to the person’s
property, or

(b)        act
with reckless disregard to the safety of the person or the integrity of the
person’s property.

…

6.         (1)        If premises are
occupied or used under a tenancy under which a landlord is responsible for the
maintenance or repair of the premises, it is the duty of the landlord to show
toward any person who, or whose property, may be on the premises the same care
in respect of risks arising from failure on the landlord’s part in carrying out
the landlord’s responsibility, as is required by this Act to be shown by an
occupier of premises toward persons entering on or using the premises.

[187]    
In the present case, as earlier noted, the tenancy agreement imposes a
contractual duty on the landlord in paragraph 12(a):

12.       REPAIRS.

(a)        Landlord Duties:  The
landlord must provide and maintain the residential premises and residential
property in a reasonable state of decoration and repair, making the residential
premises …suitable for occupation by a reasonable tenant.  The landlord must
comply with health, safety and housing standards required by law.

[188]    
That contractual duty comports with the statutory duties set forth in s.
32(1)(a) and (b) of the Residential Tenancy Act, S.B.C. 2002 c. 78,
which read as follows:

32(1)    A landlord must provide and maintain residential
property in a state of decoration and repair that

(a)        complies with the
health, safety and housing standards required by law, and

(b)        having regard to the age, character and location
of the rental unit, makes it suitable for occupation by a tenant.

[189]    
Section 32(5) provides:

32(5)    A landlord’s obligations
under subsection (1)(a) apply whether or not a tenant knew of a breach by the
landlord of that subsection at the time of entering into the tenancy agreement.

[190]    
The tenancy agreement also provided as follows in para. 12(b) and 25:

12(b)    Tenant’s Duties:  The
tenant must maintain ordinary health, cleanliness and sanitary standards
throughout the residential premises and residential property.

The tenant must take the
necessary steps to repair damage to the residential premises and residential
property caused by a wilful or negligent act or omission of the tenant or
invited guests of the tenant.  The tenant is not responsible for reasonable
wear and tear to the residential premises.  If the tenant does not comply with
the above duties the landlord may discuss the matter with the tenant and may
seek a monetary order through arbitration under the Residential Tenancy Act for
the cost of repairs, serve a Notice to End a Residential Tenancy, or both.

…

25.       COMMON AREAS.  The
tenants are responsible to properly cut and water the lawns, and for weeding
the flower beds.  All balconies/patios must be kept clean and tidy.  The tenant
shall not misuse areas of the residential property, but shall use them
prudently, safely and equitably.  All such use shall be at the risk of the
tenant, and the tenant’s guest.

[191]     In the
present case, the plaintiff has, in effect, advanced several possible causes
for her slip and fall and consequent injury or injuries.  Although unable to
describe why she fell, she contends either that the stair treads were
inherently slippery, or that the lack of conformity in their rise, or run, or
that the presence of ice on them were, individually, or in combination, causative
factors in her fall, and that the absence of a railing prevented her from
avoiding the fall altogether or in stopping it.

[192]     The
defendant, on the other hand, contends that there is no objective evidence that
the stairs were inherently slippery as the plaintiff’s expert declined to test
them; that the lack of uniformity of the rise of the stairs could have no
effect on the plaintiff as she fell on the first step down and was not
therefore subjected to the irregularity asserted in the rise of the stairs;
that there was no evidence of an irregular or non-compliant run; that if the
cause of the fall was the ice on the stairs, that was entirely the plaintiff’s
doing as she [and her son] by their own evidence, assumed responsibility for
clearing the stairs of snow the night before; and, given that the plaintiff had
her dog’s leash in one hand and an umbrella in the other, it is unlikely, at
best, that she would have, or could have used a railing if one existed to
prevent her slip or stop herself from falling.

[193]     The defendant
submits, given the state of the evidence, the cause of the plaintiff’s fall is
entirely speculative and is just as likely a result of her wearing
inappropriate footwear and losing her balance, or otherwise being the cause of her
own collapse on the stairs.

[194]     Although
the plaintiff in this case advances several possible causes of her slip and
fall, the only specific cause which she identified in her January 22, 2004
statement, in ongoing communication with her medical care givers, and in subsequently
applying for disability benefits, was that she slipped on black ice.

[195]     While
there are variations in the evidence of the plaintiff and her son Chris on the
one hand, and the defendant on the other, all agree that it snowed the night
before the fall and the defendant does not dispute the plaintiff’s and Chris’
evidence that they shovelled snow off of the stairs the previous evening or
that Chris put salt on the stairs after the fall.  The difference in the
evidence is whether the defendant paid $5 to Chris to clean the stairs and
whether the plaintiff was wearing her son’s Nike running shoes or skateboard
type shoes with the heels flattened down at the time of the fall.

[196]     On
balance, I accept the defendant’s versions of the event over that of the
plaintiff and her son.

[197]     I find the
plaintiff’s evidence generally to be problematic as concerns both the causes
and the effects of her slip and fall.  Her present uncertainty about the
condition of the stairs and the cause of her fall is in contrast to her various
contemporaneous and ongoing assertions to medical caregivers in her
applications for disability payments and in her written statement of January
22, 2004 that she slipped on ice.  In addition, her tendency to exaggerate or
embellish the nature and effects of her injuries by mis-describing them as a
broken arm and a dislocated shoulder, her apparently anomalous reaction to
them, including passing out from the pain, and her exaggerated reactions to
asserted exacerbations reduced her reliability as a witness.

[198]     While the
way the plaintiff presented herself may have been influenced by the difficult
and unfortunate emotional and psychological stresses she was experiencing at
the time, that does not ameliorate the problematic nature of her evidence.

[199]     The
defendant, on the other hand, was relatively straight forward in her evidence
and although there were some inconsistencies concerning when and why she gave
the plaintiff notice to quit the premises and some issues as to when she first
raised her suspicions about the legitimacy of the plaintiff’s claim to her
insurer and why she raised that issue, her evidence on the condition of the
stairs and her interaction with the plaintiff was not compromised by
inconsistency.

[200]     Insofar as
Chris is concerned, it seems likely that while he may well be describing what
he honestly believes to have happened, he was influenced by the fact that his
mother at some point read to him from statements made by either herself or
other witnesses in connection with what happened on January 7, 2004, six years
before he testified at the trial.

[201]     In
addition, the steps at issue were exclusively used by the plaintiff and her
sons and their guests.  They did not lead to a common entrance to the premises
used by the defendant or her guests.  The defendant had and used an entirely
different entrance.  That the plaintiff would assume responsibility for
cleaning the snow off of her own steps accords with logic and common sense,
particularly in light of the defendant’s knee injury and the fact that the
plaintiff received a discount in her rent for agreeing to take on some of the
chores associated with the premises.

[202]     For
similar reasons I have difficulty accepting the plaintiff’s and Chris’s evidence
over that of the defendant as to the shoes she was wearing at the time of the
slip and fall.  While I accept that the shoes she produced at trial likely
belonged to her son at the material time, they do not appear consistent with
the plaintiff’s description of them in her January 22, 2004 statement as
“skateboard shoes”.  The defendant’s description of what she saw on the
plaintiff’s feet at the time on the other hand does appear more consistent with
a description of skateboard shoes.  I thus accept that the likely primary cause
of the plaintiff’s fall was the residual ice and snow on the stairs, a cause which
may have been contributed to by the plaintiff’s footwear and her manner of
wearing them.  I am not able to conclude the inherent slipperiness of the stair
treads or an irregular rise or run were causative factors in the slip and fall
at issue in this case.

[203]     In
contending that the defendant has liability for the plaintiff’s slip and fall
as a result of the residual ice and snow on the stairs, the plaintiff relies on
the judgment of Voith J. in O’Leary v. Rupert, 2010 BCSC 240.  In that
case, Justice Voith found liability against a landlord where the plaintiff
slipped and fell after getting out of her vehicle on the icy driveway to her
home.  She lived in a basement suite of premises in which the defendant landlord
occupied the main floor.  Voith J. considered the issue of the defendant
landlord’s liability in light of the Occupiers Liability Act, the Residential
Tenancy Act, and a standard form tenancy agreement with terms identical to
those in paras. 12(a) and 12(b) of the tenancy agreement at bar.

[204]     In the
course of his reasons, Justice Voith noted that neither the Occupiers
Liability Act nor the Residential Tenancy Act imposed a higher
standard of care than the law of negligence, citing Jakobsons v. Wall
Financial Corp., [1998] B.C.J. No. 1641 (S.C.) at para. 18, and Tolea
v. Ialungo, 2008 BCSC 395, 69 R.P.R. (4^th) 142 at para. 26.  He
further noted that a breach of the Residential Tenancy Act does not in
and of itself give rise to an action in tort or create a claim for breach of
statutory duty, citing Tolea at para. 43 and MacLeod v. Yong, [1997]
B.C.J. No. 2108 (S.C.), aff’d 1999 BCCA 249, 66 B.C.L.R. (3d) 355.

[205]    
He went on to say as follows in para. 33 and 34 of his reasons:

33.       The interplay of these various statutory provisions
has been considered and addressed on several occasions.  In Zavaglia v. Maq
Holdings Ltd. (1983), 50 B.C.L.R. 204 (Co. Ct.), the court said at p. 215:

In summary then, s. 30(1) of the Landlord
and Tenant Act [now s. 32 of the RTA] imposes a duty on the landlord
to make repairs to ensure that the demised premises meet safety standards
required by law.  This duty is not subject to the tenant notifying the landlord
of the defect.  Section 6(3)(c) of the Occupiers Liability Act incorporates
this statutory duty into the tenancy agreement.  Thus, the landlord, with
respect to residential property, has the responsibility to make repairs
relating to safety.  This is a duty he owes the occupier of the premises.  The
defendant in this instance failed in his duty to repair the property, that is,
to install the railing.  This default in duty gives rise to an action in tort
by the visitor of the tenant against the landlord, pursuant to s. 6(1) of the Occupiers
Liability Act, which gives a visitor the same right of action as the
occupier.

Having concluded that the landlord
owes a duty of care to the plaintiff, the next question is whether he has
failed to meet the standard of care imposed on him

The standard of care owed by the
landlord pursuant to s. 6(1) of the Occupiers Liability Act is set out
in s. 3(1) which provides:

3.(1) An occupier of premises owes
a duty to take that care that in all the circumstances of the case is
reasonable to see that a person, and his property, on the premises, and
property on the premises of a person, whether or not that person himself enters
on the premises, will be reasonably safe in using the premises.

The test is an objective test,
namely, that of a reasonable man.  The learned author, Mr. Di Castri, at p. 217
of his book outlined several factors that courts have considered in applying
this test; they are:

(1)        Whether
the plaintiff, in the light of his own knowledge, exercised reasonable care for
his own safety;

(2)        Whether
the occupier’s conduct accorded with an accepted standard of practice;

(3)        Whether
the occupier’s system of inspection or supervision was commensurate with the
risk, the length of time the danger was allowed to exist being highly relevant;

(4)        The
steps necessary to remove the danger and the consequent burden on the occupier;
and

(5)        Whether
or not the danger was foreseeable in accordance with the principle enunciated
in Donoghue v. Stevenson, [1932] A.C. 562 (H.L.).

34.       More recently in Tolea, and in referring to Zavaglia,
Mr. Justice Silverman said, at para. 61:

1.         A
landlord’s obligation is to not only provide but to maintain buildings in a
state of repair that complies with the housing standards required by law.

2.         Section
6 of the OLA imposes an occupiers duty of care on a landlord where there
is “a tenancy under which a landlord is responsible for the maintenance or
repair of the premises”.

3.         A
landlord’s duty to repair is as set out in both the tenancy agreement and the RTA.

4.         A landlord’s
duty to inspect is part of the duty to provide and maintain residential
premises in a reasonably suitable state under the RTA, as well as part
of a landlord’s duty to take reasonable care in carrying out the responsibility
for repair of the premises under s. 6 of the OLA.

5.         A
landlord with a duty to repair under the RTA has a duty to make
reasonable inspections of the premises for defects, regardless of whether he or
she has notice or actual knowledge of defects.

6.         The OLA
imposes a duty of reasonable inspection on both the landlord and tenant. 
The standard of reasonableness for each party must be determined according to
their respective positions and responsibilities.  The standard of reasonable
inspection imposed on a landlord will likely be elevated above that imposed on
a tenant where the following factors occur:

(a)        the
landlord has observed the evolution of a residence through multiple tenancies
and repairs and alterations;

(b)        the
landlord has the legal responsibility for maintaining and repairing the
premises;

(c)        where
the area of concern relates to a structural defect that existed prior to the
current tenancy.

7.         The tenant’s duty will likely
be limited to the reporting of defects or damages discoverable by reasonable
inspection in the circumstances, not apparent upon ordinary visual observation:
Klajch (Guardian ad litem of) v. Jongeneel, 2002 BCCA 14, 174 B.C.A.C.
184 [Klajch]; Zavaglia.

[206]     Justice
Voith rejected the defendant’s contention in the case before him that because
the tenancy agreement expressly provided for parking for the plaintiff, the
obligation to clear and maintain the area fell to her.

[207]    
He reasoned thus, in paras. 36 – 39 of his judgment:

[36]      First, s. 10 of the Tenancy Agreement under the
heading “Repairs” states:

1) Landlord’s obligations:

a) The landlord must provide and maintain the residential
property in a reasonable state of decoration and repair, suitable for
occupation by a tenant. The landlord must comply with health, safety and
housing standards required by law.

[37]      The RTA, in s. 1, defines “residential
property” as follows:

“residential property” means

(a)        a
building, a part of a building or a related group of buildings, in which one or
more rental units or common areas are located,

(b)        the
parcel or parcels on which the building, related group of buildings or common
areas are located,

(c)        the rental unit and
common areas, and

(d)        any other structure
located on the parcel or parcels;

[38]      The obligation of the Ruperts under the Tenancy
Agreement was to “maintain the residential property in a reasonable state of
…. decoration and repair.” Conversely, the obligation of Ms. O’Leary under s.
10 of the Tenancy Agreement was to “maintain reasonable health, cleanliness and
sanitary standards.” In saying this, I recognize that as a matter of practice
Mrs. O’Leary swept and shovelled the stairs and pathway leading to her
suite.

[39]      Second, as I have said,
it is common ground that the Ruperts maintained and shovelled the whole of
their driveway without ever suggesting to Mrs. O’Leary that this obligation
properly fell to her. Liability may be imposed on a party who has voluntarily
undertaken to do something they were not otherwise obligated to do: see Goodwin
v. Goodwin, 2007 BCCA 81, 64 B.C.L.R. (4th) 280, at para. 26. Where that
voluntary task is performed negligently and causes foreseeable harm to a
plaintiff, liability may arise. Once the Ruperts undertook to maintain and
shovel the whole of their driveway, regardless of whether they were under a
legal obligation to do so, they had a duty not to perform this task negligently

[208]     In the
present case, of course, I have found that the plaintiff and not the defendant undertook
to shovel the stairs.  The issue that presents itself in this case, unlike O’Leary,
supra, is whether in doing so, the plaintiff obviated the defendant’s
potential liability either under the tenancy agreement or under the Occupiers
Liability Act.  To put it in the context of the O’Leary case,
would the defendant there have been liable if Ms. O’Leary had slipped and
fallen on the stairs and pathway leading to her suite, which she “as a matter
of practice” swept and shovelled?

[209]     I was not
referred to, nor was I able to find, any direct authority on the issue of
whether a tenant, by voluntarily assuming an obligation of the landlord imposed
either under the Occupiers Liability Act, the Residential Tenancy Act
or a tenancy agreement negates the landlord’s liability for any injuries
sustained as a result of the inadequate performance of that obligation.

[210]     It seems
likely that such conduct by a tenant seeking redress against a landlord would
found a claim of contributory negligence, and that it would implicate the
tenant in a claim by a third party.  The question for determination here
however is whether as between the landlord and the tenant only, the tenant’s
assumption of the obligation vitiates the potential liability of the landlord
to her.

[211]     The
plaintiff acknowledged that she received a reduction of her rent of $100 per
month to undertake some of the additional work around the premises.  Although
she testified that that only involved mowing the lawn, that seems to me unlikely
as that task was one of her obligations under s. 25 of the standard form
tenancy agreement governing the parties in any event.  Thus, this is a case
where the tenant not only voluntarily assumed some of the defendant landlady’s
obligations, but she also did so for remuneration – a reduction in her rent.

[212]     For the
plaintiff to succeed in her claim under the Occupiers Liability Act, she
must prove on the balance of probabilities that the defendant was an occupier
of the premises where and when the accident occurred, that the defendant
breached a duty of care owed to the plaintiff, that the defendant’s breach
caused the plaintiff’s injury, and that the plaintiff suffered damage.  See Hare
v. Onofrychuk, 1999 ABPC 93, 252 A.R. 279 at para. 44; Eric Wagner,
Annotated British Columbia Occupiers Liability Act 2010, at p. B-4.  In
this case the defendant concedes that she owed a duty of care to the plaintiff
under the combined effect of the Occupiers Liability Act and the Residential
Tenancy Act.

[213]    
In Waldick v. Malcolm, [1991] 2 S.C.R. 456, the Supreme Court of
Canada considered the nature of the duty imposed by the Occupiers Liability
Act, R.S.O. 1980, c. 322.  Mr. Justice Iacobucci held as follows at p. 472:

After all, the statutory duty on
occupiers is framed quite generally as indeed it must be.  That duty is to take
reasonable care in the circumstances to make the premises safe.  That duty does
not change but the factors which are relevant to an assessment of what
constitutes reasonable care will necessarily be very specific to each fact
situation – thus the proviso “such care as in all the circumstances of the case
is reasonable”.

[214]    
Where, as here, the plaintiff has by implicit agreement with the
defendant undertaken the acts underlying the duty “to take that care that …
is reasonable to see that a person … on the premises … will be reasonably
safe in using the premises” by shovelling snow off the stairs, is there
justification for the view that the defendant has discharged her duty in all
the circumstances of the case?

[215]    
In R. v. Creighton, [1993] 3 S.C.R. 3, McLachlin J. (as she then
was) held as follows at paras. 138 – 139:

138      This is not to say that the question of guilt is
determined in a factual vacuum.  While the legal duty of the accused is not
particularized by his or her personal characteristics short of incapacity, it
is particularized in application by the nature of the activity and the
circumstances surrounding the accused’s failure to take the requisite care.  As
McIntyre J. pointed out in R. v. Tutton, [1989] 1 S.C.R. 1392, the
answer to the question of whether the accused took reasonable care must be
founded on a consideration of all the circumstances of the case.  The question
is what the reasonably prudent person would have done in all the circumstances
…

139      The matter may be looked at in this way.  The legal
standard of care is always the same – what a reasonable person would have done
in all the circumstances.  The de facto or implied standard of care,
however, may vary with the activity in question and the circumstances in the
particular case.  The law of civil negligence is helpful in understanding this
distinction.  In Salmond and Heuston on the Law of Torts (20^th
ed 1992), at pp. 227-28, the authors explain that the standard of care:

will be different in different cases,
for a reasonable person will not show the same anxious care when handling an
umbrella as when handling a loaded gun. [Beckett v. Newalls Insulation Co.
Ltd., [1953] 1 W.L.R. 8, at p. 17] … But this is a different thing
from recognising different legal standards of care; the test of negligence is
the same in all cases. So a learner driver must comply with the same
objective and impersonal standard as any other driver. [Nettleship v.
Weston, [1971] 2 Q.B. 691] So also must a driver who is old or infirm, as
distinct from totally unconscious.  [Roberts v. Ramsbottom, [1980] 1
W.L.R. 823].

[underlining added by McLachlin J.]

[216]    
In an Australian case, Imbree v. McNeilly, [2008] HCA 40, 236
C.L.R. 510, the appellant plaintiff had allowed the defendant respondent to
drive his vehicle knowing that the respondent had little driving experience,
was unlicensed, and held no learner’s permit.  The respondent lost control of
the vehicle which overturned, and the appellant/plaintiff was seriously
injured.

[217]    
The issue on appeal was whether the standard of care owed by a novice
driver vis a vis a supervising passenger is “that which is reasonably to
be expected of an unqualified and inexperienced driver in the circumstances in
which the pupil is placed”.  In Cook v. Cook (1986), 162 C.L.R. 376
(Aust. H.C.), the court had held as follows:

While the personal skill or
characteristics of the individual driver are not directly relevant to a
determination of the content or standard of the duty of care owed to a
passenger, special and exceptional facts may so transform the relationship
between driver and passenger that it would be unreal to regard the relevant
relationship as being simply the ordinary one of driver and passenger and
unreasonable to measure the standard of skill and care required of the driver
by reference to the skill and care that are reasonably to be expected of an
experienced and competent driver of that kind of vehicle.

[218]    
The court in Imbree overruled Cook, holding as follows in
paras. 69 – 72:

69        The common law recognizes many circumstances in
which the standard of care expected of a person takes account of some matter
that warrants identifying a class of persons or activities as required to
exercise a standard of care different from, or more particular than, that of
some wholly general and “objective community ideal”.  Chief among those
circumstances is the profession of particular skill.  A higher standard of care
is applied in those cases.  That standard may be described by reference to
those who pursue a certain kind of occupation, like that of medical
practitioner, or it may be stated, as a higher level of skill, by reference to
a more specific class of occupation such as that of the specialist medical
practitioner.  At the other end of the spectrum, the standard of care expected
of children is attenuated.

70        But what distinguishes the principle established in
Cook v. Cook from cases of the kind just mentioned is that Cook v.
Cook requires the application of a different standard of care to the one
defendant in respect of the one incident yielding the same kind of damage to
two different persons, according to whether the plaintiff was supervising the
defendant’s driving or not.  In all other cases in which a different level of
care is demanded, the relevant standard of care is applied uniformly.  No
distinction is drawn according to whether the plaintiff was in a position to
supervise, even instruct, the defendant although, of course, if the plaintiff
was in that position, a failure to supervise or instruct may be of great
importance in deciding whether the plaintiff was contributorily negligent.

71        There is no warrant for the distinction that was
drawn in Cook v. Cook.  Cook v. Cook should no longer be followed in
this respect.

72        The principle adopted
in Cook v. Cook departed from fundamental principle and achieved no
useful result …

[219]    
An application of that reasoning to the present case yields a conclusion
that the duty of care owed by the defendant to the plaintiff through the
provisions of the Occupiers Liability Act is no different than the duty
owed by the defendant to a third party on the premises such as a person
delivering mail or attending at the house for some other reason.  In those
circumstances, I find the defendant’s failure to inspect the premises to ensure
that there was no residual ice or snow engages her liability under the Occupiers
Liability Act and the Residential Tenancy Act, both of which and in
combination, place an obligation on her to ensure that the premises are
reasonably safe.  That liability is of course subject to a determination of the
plaintiff’s contributory negligence in failing to adequately remove the snow
and/or ice and in wearing inappropriate footwear.

[220]    
Insofar as the plaintiff’s claim against the defendant for breach of the
tenancy agreement for failing to comply with the Coquitlam building bylaw and
the B.C. Building Code is concerned, I have already concluded that neither the
inherent slipperiness of the stair treads nor an irregular rise or run were
causative factors in the slip and fall at issue in this case.

[221]     As to the
absence of a railing as required by the applicable Bylaw, I am not satisfied that
is a causative factor in connection with the slip and fall.  The plaintiff’s
evidence is that she was descending the stairs with an umbrella in one hand and
her dog’s leash in the other and that she slipped on the first step.  In those
circumstances, it is speculation at best to assert the plaintiff would not have
slipped or fallen had there been a handrail installed.  While the defendant may
have indeed been in breach of her contractual or statutory duty to the
plaintiff by not installing a railing, I am simply not satisfied on the balance
of probabilities that that was in any way causative of the fall and whatever
ensuing injury or damage was suffered by the plaintiff.

[222]    
The issue of causation in the context of claims under the Occupiers
Liability Act, a tenancy agreement and in negligence was canvassed by Bouck
J. in Ellington v. Rodgers [1986] B.C.J. No. 2020 (S.C.).  The circumstances
at issue in that case were set forth at pp. 1-2 of Bouck J.’s judgment as
follows:

Mr. Ellington and his wife got up early on the morning of 2
March, 1983 to go to Bellingham, U.S.A.  He had been off work for some time and
intended to resume employment at a fish packing plant.  He holds joint Canadian
and American citizenship.  As he was coming down the stairs to go outside, he
slipped and fell from the top of the landing to the bottom of the staircase. 
There were four stairs leading down from this particular landing to the other
level.  At the top of the landing, his crepe soled shoe on his right foot
became stuck to the shag rug which covered the stairs.  Because he could not
move it immediately, he started to fall.  As he fell, his foot was in a twisted
position.  Somehow or other he fractured his right ankle.  It is not altogether
clear whether the ankle broke during the course of the fall or when he
collapsed at the foot of the staircase.

The particular set of stairs was installed by the defendants
in 1977 when they were in the process of renovating the house.  At that time
they did not bother to get a building permit from the municipal authorities
although one was required.  The building code in force in 1977 and in 1983
required the set of stairs in question to have a railing down one side for
safety purposes.  Apparently, the defendants were not aware of the requirement
and no railing was in fact installed.

It is now the contention of the
plaintiff that if the railing had been placed on the on the stairs as the law
provided, he would have been able to stop his fall and the injury to his ankle
would not have occurred.

[223]    
In the result, Bouck J. found no evidence of causation, concluding that:

The causal relation between the
failure to install the handrail and the injury was not made out but was left to
conjecture.

[224]    
In my view, the same reasoning prevails in the present case.  It follows
that the defendant’s liability rests only on her failure to ensure that the
stairs were competently cleared of ice and snow, which in the circumstances
engages consideration of the plaintiff’s contributory negligence.

DAMAGES

[225]     It is the
plaintiff’s contention that she suffered significant and ongoing injuries to
her right elbow and left shoulder as a result of the slip and fall, which
resulted in two operations, several medical procedures and some exacerbations
through mishaps connected to her employment.

[226]     The
plaintiff submits she has a permanent deformity and restriction of movement in
her elbow, and continues to have pain and restriction of movement in her left
shoulder, despite the improvement resulting from the capsular release performed
by Dr. Moola in July 2007.  The plaintiff submits her condition is likely
permanent and limits her ability to access all forms of employment for which
she is qualified.  The plaintiff further contends that her injuries engage a
consideration not only of non-pecuniary damages for pain and suffering which
she submits falls in the range of $75,000, but also special damages for
medications amounting to $329.98, damages for past wage loss from January 7,
2004 to May 10, 2004 and from September 2004 to October 2005 amounting to
$29,500, damages for loss of earning capacity, and damages reflecting cost of
future care as set forth in Natalie Allende’s January 13, 2010 report.  The
plaintiff also makes an “in trust” claim for her brother and Darla Nordin who
made payments on her behalf while she was absent from work in 2004 and 2005.

[227]    
The defendant submits that the plaintiff’s damages are minimal.  The
defendant says this is a case, in light of the plaintiff’s evidence, that
invokes the caution in Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.),
where Chief Justice McEachern observed as follows:

I am not stating any new principle when I say that the court
should be exceedingly careful when there is little or no objective evidence of
continuing injury and when complaints of pain persist for long periods
extending beyond the normal or usual recovery.

An injured person is entitled to
be fully and properly compensated for any injury or disability caused by a
wrongdoer.  But no one can expect his fellow citizen or citizens to compensate
him in the absence of convincing evidence – which could just be his own
evidence if the surrounding circumstances are consistent – that his complaints
of pain are true reflections of a continuing injury.

[228]     Although
conceding in her pleadings that the slip and fall occurred, the defendant
submits the court should scrutinize the plaintiff’s evidence of the nature and
effects of the slip and fall carefully in light of the evidence of her
ruminations about injuring herself to obtain a financial settlement prior to
the slip and fall.  The defendant submits the only injury arising from the slip
and fall is the injury to the plaintiff’s elbow, that “the causation of her
shoulder problems remains a mystery”, and that any residual complaints she has
do not relate to the slip and fall.  The defendant says based on the nature and
duration of the injury an award for non-pecuniary damages should be nominal and
subject to a finding of contributory negligence.

[229]     So far as
the past wage loss is concerned, the defendant submits that the plaintiff is
not entitled to any wage loss for the period she was off work due to her
unrelated psychological problems between September 2004 and October 2005, but
that if she is entitled to damages for past wage loss it should be limited to
the period between January 7, 2004 and May 10, 2004 when she was cleared to
return to work.  The defendant submits this award should be based on the
plaintiff’s earnings of $657.59 weekly and would amount to $11,179.03.

[230]     The
defendant submits that the plaintiff’s loss of earning capacity claim should be
dismissed as the evidence falls short of proving a real and substantial
possibility of a future income loss.  The defendant submits there is no
evidence the effects of the slip and fall deprived the plaintiff of her ability
to work with aggressive children and that the accommodation for her was not
made until 2009, some five years post accident, not in 2007 as Mr. Stanus
believed.  The defendant notes that the plaintiff is presently working double
the hours she was before the accident and she has essentially worked steadily
since 2005 except for the period of her WCB claim in the spring of 2007.

[231]     So far as
the cost of future care is concerned, the defendant submits that claim should
be dismissed as there is a lack of evidence that they are expenses the plaintiff
will be likely to incur.

[232]     The
defendant submits the plaintiff’s “in trust” claims are not reasonable and do
not relate to the plaintiff’s injuries suffered from the slip and fall, but
rather relate to her psychological problems which overtook her in the fall of
2004.

[233]     As I have
previously indicated, I found the plaintiff’s evidence as to the nature and
effects of her slip and fall to be problematic and beset by exaggeration and
embellishment.  In particular, the evidence that she passed out from
excruciating pain after summoning her son to call the defendant is unlikely,
given the evidence of Dr. Fyfe and Dr. Moola.  Similarly, her unwillingness to
let Dr. Perey even touch her elbow when he examined her on January 19, 2004 and
her anomalous “pain behaviour” when she was admitted to Royal Columbian
Hospital on April 5, 2007 after falling over the log at the school parking lot,
is in my view, of a piece with her mischaracterization of her injuries to
various people as a broken arm and a dislocated shoulder that went untreated
for three months.  In my view, the plaintiff has demonstrated a tendency to
exaggerate the nature and extent of her injuries to a significant degree.  A
relatively recent example of that exaggeration can be found in the evidence of
Ms. Allende, contrasted with that of Dr. Moola.  Ms. Allende noted the
plaintiff demonstrated “poor grip strength” with scores placing her in the
fifteenth percentile in her right hand and “below the first percentile in the
left hand” in her assessment which was conducted in December 2009.  On the
other hand, Dr. Moola noted in his December 18, 2009 examination and report
that Ms. Hunter showed “no motor weakness” in her left hand.  The contrast is
stark.

[234]     As well,
Ms. Allende reported that the plaintiff attributed the depression she suffered
from in 2004/2005 to the accident, when there was evidence that it was a
pre-existing condition and arose from her break-up with her common-law spouse
in 2003.

[235]     As far as
the plaintiff’s left shoulder is concerned, while I accept Dr. Moola’s
diagnosis of it as a primary frozen shoulder secondary to the trauma sustained
on January 7, 2004, the plaintiff displayed few symptoms and made no complaints
about it until May 11, 2004, after it was diagnosed by Dr. Perey during the
ulnar nerve transposition on March 12, 2004, and after she was cleared to
return to work.  Before that, the plaintiff’s only reference to her shoulder
was on January 7, 2004, when she reported to the Emergency Department at Eagle
Ridge Hospital that it was “tightening up”.  Later, on April 7, 2004, after the
operation performed by Dr. Perey on her elbow, and after she had been diagnosed
with a frozen shoulder, she told her general practitioner, Dr. Horvat that
her shoulder was “one hundred percent better”.  In those circumstances, while I
accept the slip and fall had some consequences to Ms. Hunter’s left
shoulder, I am not satisfied that her subsequent complaints of shoulder pain
following the incidents on April 3 and April 5, 2007 are reliable, or relate to
the January 7, 2004 incident.  I find in her subjective complaints of shoulder
pain and in her extreme reactions to the events of April 3^rd and
April 5^th the same level of exaggeration that coloured her evidence
of the effects of the slip and fall generally.

[236]     As earlier
noted, I accept the likelihood that the plaintiff’s perception and presentation
of her injuries may have been influenced by the difficult and unfortunate
psychological stresses she was undergoing in the period leading up to and
following the slip and fall.  As noted, however, that does not overcome the
problematic nature of her evidence and I conclude that the effects of the slip
and fall, although involving her elbow and left shoulder, are neither as
extensive nor as disabling as she has presented them.

[237]     In
particular, I am not satisfied that the effects of the slip and fall engage any
past wage loss beyond May 10, 2004, nor do I accept that they justify a finding
that the costs of future care as identified by Ms. Allende are reasonably
necessary on the medical evidence, in light of the findings I have made: Aberdeen
v. Zanatta, 2008 BCCA 420, 84 B.C.L.R. (4^th) 220.  I accept that
Ms. Hunter experienced pain and discomfort to her elbow and some stiffness to
her left shoulder.  I accept that the elbow injury necessitated an operation
and that she was compelled to be off work until May 10, 2004.  I accept Dr.
Moola’s opinion that in relation to her elbow, there is a permanent restriction
in the elbow flexion/extension arc, but that “her resulting disability is
currently manageable although the deformity is obvious”.  I note
Dr. Moola’s opinion that he does “not anticipate that she would suffer
from a future inability to earn income as long as she can continue to work at
this job and they continue to accommodate her disability”.

[238]     I conclude
on the whole of the evidence that an appropriate award of damages for pain and
suffering as a result of Ms. Hunter’s elbow injury and shoulder condition is
$25,000.  I accept the consequent necessity of her missing work between January
7, 2004 and May 10, 2004 and I would award her past wage loss of $11,179.03.  I
am not satisfied that her absence from work between September 2004 and October
2005 was caused by the effects of her slip and fall and I would not award her any
past wage loss for that period, as I consider it a result of the psychological
difficulties she was experiencing.  This loss is not causally related to the
effects of the slip and fall.

[239]     I
similarly find that the plaintiff’s in trust claims on behalf of her brother
and Darla Nordin are not causally related to the slip and fall, but arose from
the psychological and emotional difficulties she was experiencing in 2004 an
2005.  I therefore dismiss that aspect of the plaintiff’s claim.

[240]    
In dealing with the plaintiff’s claim for a loss of earning capacity, I
have regard to the decision of Finch J. (as he then was) in Brown v. Golaiy (1985),
26 B.C.L.R. (3d) 353.  In that case, Finch J. held as follows:

The means by which the value of the last or impaired asset is
to be assessed varies of course from case to case.  Some of the considerations
to take into account in making that assessment include whether:

1.         the plaintiff has been rendered less capable
overall from earning income from all types of employment;

2.         the plaintiff is less marketable or attractive as
an employee to potential employers;

3.         the plaintiff has lost the ability to take
advantage of all job opportunities which might otherwise have been open to him
had he not been injured; and

4.         the plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.

[241]    
Both Ms. Allende and Mr. Stanus note there are a number of
factors at play in connection with the plaintiff and which are unrelated with
the slip and fall of January 7, 2004 that may have an impact on her future
earning capacity.  In the present case, the plaintiff argues, in effect, that
her loss of earning capacity arises from the fact that she needs to be
accommodated to some extent in her present chosen profession and that that
accommodation may not always be available to her.  My task in assessing this
aspect of the plaintiff’s claim is set out succinctly by Donald J.A. for the
court in Steward v. Berezan, 2007 BCCA 150, 64 B.C.L.R. (4^th)
152 at para. 17:

… The claimant bears the onus
to prove at trial a substantial possibility of a future event leading to an
income loss, and the court must then award compensation on an estimation of the
chance that the event will occur:  Parypa ¶ 65.

[242]     In this
case I have evidence that notwithstanding her asserted disability, the
plaintiff has made significant achievements in increasing her working capacity
to double what it was prior to the slip and fall on January 7, 2004.  While I
accept the logic of the plaintiff’s contention that a need to be accommodated
may render an employee less marketable or attractive to potential employers, I
do not find, in the circumstances of this case, a real and substantial
possibility that her income will be reduced as a result of the effects of the
slip and fall.  On the evidence before me, I regard it as more of a speculative
possibility than a substantial one.  In the result, I would not award the
plaintiff any damages for loss of earning capacity.

[243]     The
plaintiff is entitled to $329.98 as special damages for her medications.

[244]     This is a
case which requires consideration of the plaintiff’s contributory negligence. 
I have found that the primary cause of the slip and fall was the residual ice
and snow left on the stairs after the plaintiff and her son cleared them the
previous evening.  I have also found that the footwear worn by the plaintiff
and the way she wore them likely was a contributing cause.  In the result,
although because of the defendant’s status as an occupier and as a landlady on
whom an obligation rests to ensure the premises were reasonably safe for
persons using them, I have found her liable, the circumstances of this case
compel a finding of contributory negligence.  Weighing the parties’ respective
fault in accordance with Cempel v. Harrison Hot Springs Hotel Ltd. (1997),
43 B.C.L.R. (3d) 219, and the factors summarized by Groves J. in Aberdeen v.
Langley (Township), 2007 BCSC 993 at paras. 62 – 63, rev’d on other
grounds, 2008 BCCA 420, in all the circumstances, I conclude there should be a
finding that the plaintiff is 75% liable for the accident and the defendant is
25% liable.

[245]     In the
result, the plaintiff is entitled to an award of $9,127.25 representing 25% of
general damages of $25,000, past wage loss of $11,179.03 and special damages of
$329.98.  She is entitled to interest on that proportion of the award relating
to her past wage loss and special damages.  The plaintiff is awarded costs and
disbursements unless there is some matter of which I am unaware and in which
case the parties have liberty to apply.

“A.F.
Cullen J.”

The
Honourable Mr. Justice A.F. Cullen