IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110616

Docket: S104023

Registry:
Vancouver

Between:

Laura
Battagliola

Plaintiff

And:

Wal-Mart
Canada Corp.

Defendant

Before: The Honourable Mr. Justice
D.M. Masuhara

Reasons for Judgment

Introduction

[1]            
This action relates to a knee injury suffered by Ms. Battagliola on
February 15, 2005, at the New Westminster store of Wal-Mart Canada Corp.
(“Wal-Mart”).  This proceeding is brought under old Rule 66 now Rule 15-1.
The plaintiff says that an uninstalled metal shelf that had been left sitting
horizontally on the floor was kicked over and struck her right knee.  This, she
says, has resulted in her suffering chronic pain in and around her right knee.

[2]            
Wal-Mart admits liability but contests the extent of the plaintiff’s
injuries and damages.  The defendant also submits that Ms. Battagliola
failed to mitigate her damages.

[3]            
Ms. Battagliola’s claim for damages does not include loss of future
income.

[4]            
The witnesses called in the plaintiff’s case were Ms. Battagliola; Mr. Foden,
the plaintiff’s spouse; Ms. Gibbs, a friend of the plaintiff; Dr. Pisesky,
an orthopaedic surgeon; and Mr. Waryk, a friend of the plaintiff with whom
she danced with on occasion.  In rebuttal, the plaintiff called Ms. Nijjer
who was, at the time of the incident, assistant manager at the New Westminster
Wal-Mart and now store manager.

[5]            
The defence’s sole witness was Ms. Hyde, the department manager who
was working nearby at the time of the incident

Background

[6]            
The plaintiff is presently fifty-three years old.  She came to Canada in
1972 from Argentina.  She has a Grade 11 education with some college
training in Business Administration.  Since arriving, she has largely worked in
“inside” sales and customer service.  In 2005, she was living in the Lower
Mainland and working as a customer service representative at a printing
company.

[7]            
On February 15, 2005, Ms. Battagliola and a co-worker “Kenny” went
to Wal-Mart in New Westminster to purchase paper plates for a luncheon that had
been scheduled for another co-worker who was leaving.

[8]            
In the Wal-Mart, the paper plates sat on shelves that sloped downwards
toward customers.  When Ms. Battagliola and Kenny approached the aisle with the
paper plates, there was a clerk’s utility cart in the way.  The cart was placed
right in front of the shelf with the paper plates.  Ms. Battagliola pushed the
cart to the right to get to the paper plates.  Upon moving the cart, she
noticed two 4-foot tall metal shelves on the floor that were free-standing,
side by side, in front of the installed shelves with the paper plates.  When Kenny
removed a package of plates off the shelf, all of the packages behind it began
to slide forward off the shelf and fall down.  Ms. Hyde, who was installing
shelves in the same area, noticed the problem and came to assist.  In the
course of trying to hold back the plates, either Kenny or Ms. Hyde kicked one
of the free-standing metal shelves.  This caused the shelf to rock back and hit
Ms. Battagliola’s right knee.  She says she was standing back less than two
feet from that shelf.  This caused her immediate pain to her right knee.  Ms. Hyde
heard the plaintiff cry out, “oww” and bend down.  The plaintiff did not suffer
any cuts, bruising or swelling to the impact area.  She left limping out of the
store.

[9]            
The plaintiff says that following the accident, her knee was very sore
and felt like it had “pins and needles”.  It had a burning sensation.

[10]        
The plaintiff contacted the Wal-Mart store manager four days later to report
the incident.  She was given the contact information for a firm in Toronto,
Cunningham Lindsey, which deals with claims of this nature for Wal-Mart.  She
contacted this company over the next couple of years but no resolution was
reached.

[11]        
For the first few months after the accident, Ms. Battagliola thought
that her injury would recover on its own.  She self-treated with reflexology
and a heating pad to her injured area.  Ms. Battagliola holds a certificate
as a reflexotherapist, which she obtained in 2000 through a self-study course. 
Ms. Battagliola testified that she is mistrustful of allopathic medicine
(modern medicine).  She attended one acupuncture treatment in March 2005
but did not return because it was too painful.  However, on April 15, 2005,
she went to a walk-in clinic in Surrey to see a doctor as her knee had not
improved.  She did not have a family doctor at this time.  She was referred to
physiotherapy and attended two sessions at Peace Arch Professional
Physiotherapy Clinic in May 2005.  She did not find these sessions to be
helpful.  Around this time, the plaintiff lost her job and health insurance.  She
states that she could not afford to take more physiotherapy.

[12]        
In cross-examination, it became apparent that Ms. Battagliola had
attended the walk-in clinic four times between March 8, 2005 and the
middle of May 2005, but only complained of knee pain on one occasion.

[13]        
In April 2005 Ms. Battagliola married an American.  She moved
to California in June 2005.  The marriage did not last long.  Ms. Battagliola
chose to remain in California although she did not have a work authorization
and lived in marginal circumstances.  She was supported through the kindness of
friends.  Needless to say, she had no means of obtaining treatment for her knee
injury.  She continued to use a heating pad and reflexology.  However, she
states her knee did not improve.

[14]        
In May 2008 Ms. Battagliola, through the kindness of a former
employer, was sent funds to move back and reside in Kelowna, B.C.  There, she
went to see Dr. White in October 2008 for her knee pain.  She was
referred to Dr. Bridge, an orthopaedic surgeon, who assumed care of her
knee.  He recommended physiotherapy treatments in the spring of 2010.  Ms. Battagliola
then began physiotherapy treatments at Rutland Physical Therapy, which were
funded by her legal counsel.  She was provided instruction on exercises by her
physiotherapist.  She continues to perform those exercises and to self-treat
her knee with reflexology, topical oil, massage and heat.  She says that she
exercises in her home three to four times a week.  While in Kelowna,
Ms. Battagliola sought out and found work as a server at a restaurant and
then as an “inside” sales clerk.

[15]        
Ms. Battagliola has since remarried.  She recently moved to Grand
Cache, Alberta, where her husband drives trucks for a mining company.  Ms. Battagliola
has commenced taking courses to obtain her Emergency Medical Responder (EMR)
rating.  Her goal is to work as a first-aid attendant.

[16]        
Ms. Battagliola says her knee pain continues to this day.  Ms. Battagliola
describes it as shooting pains up and down her right leg and the feeling of
pins and needles in her leg.  The pain has reduced her mobility.  She says that
she was once an avid outdoor person and enjoyed hiking and power-walking but
since her knee injury she can only walk without resting about four to six
blocks, which for her is about a half hour.  She says that she was an avid
Salsa and Tango dancer prior to the incident but can no longer do so as a
result of the pain.  The pain has had some negative impact in enjoying
intimacies with her husband.  It also causes her to awaken from sleep when she
moves.  Her knee problems also limit her ability to do household chores.  She says
that she is unable to clean her bath tub or vacuum and requires help from her
husband to mop the floors.

Medical Evidence

[17]        
Medical reports were tendered by the plaintiff.  The first was written
by Dr. White dated February 23, 2009 and the second by Dr. Pisesky
dated January 24, 2011 with a supplementary report dated February 2,
2011.  The defendant did not tender any medical reports.

[18]        
Dr. Pisesky attended at the request of the defendant for
cross-examination.

[19]        
Dr. Pisesky opined in his report that Ms. Battagliola suffers
from patellofemoral syndrome of the right knee and that the pain associated was
brought about directly by the contusion to her right knee on February 15,
2005.

[20]        
From his clinical examination, Dr. Pisesky found that:

she walks well without a limp

both knees had mild swelling on the medial aspect or inner
aspect of the knee distal to the knee joint…

The right knee does not have any swelling or effusion present. 
The right knee has mild retropatellar tenderness, both medially and in the
superior pole.

Both knees have a full and normal range of movement.

Her ligaments are stable in both knees to AP varus and valgus
stresses, both in flexion and extension.  She however, has a mildly positive
patellofemroal grind test and a mildly positive patellofemoral apprehension
test of her right knee.  Her left knee is normal.

She does have visible wasting and measurable weakness in her
right knee.

she also has 1 cm of calf wasting
on the right compared to the left…

[21]        
In his summarizing paragraphs, he states that:

There is no definite diagnosis of chondromalacia or
osteoarthritis in any of the imaging.  In addition to that, she does have flat footedness,
genu valgum and genu ricurvatum which indicates she has what’s called a miserable
mal-alignment syndrome which will aggravate the knee pain from the
patellofemoral joint.  This is her anatomical variation the way she is built. 
In addition, she has bilateral pes anerinus bursitis with the right greater
than the left, again aggravated by these same factors.  This itself is unlikely
to have been caused by the injury in question but may have been aggravated by
the injury in question.

There is no evidence of any anatomical structural derangement
in her right knee based on both clinical examination and MRI findings in my
opinion.

…

It is my opinion that this
particular injury has a low probability of development of any osteoarthritis
changes in her right knee directly as result of the injury.

[22]        
He opined that Ms. Battagliola “will likely have some degree of
discomfort in [her right] leg and findings associated with this of patellofemoral
irritation indefinitely.”  He also states that:

she should be able to control the
symptoms to some degree with the treatment program…with a combination of
orthotics, modification of activity, exercise, physiotherapy, analgesics and
anti-inflammatories, and ice.

[23]        
Dr. Pisesky recommended the following for Ms. Battagliola:

(a)           
an eight-week program, one session per week, with a physiotherapist
where she would be instructed on an physiotherapy/exercise program to
strengthen her quads in a way that does not aggravate the knee; and

(b)           
custom orthotics or insoles to help correct foot misalignment to take
some pressure off her knees.  The use is for full-time and probably lifelong. 
The devices would need to be changed, on average, every five years.

[24]        
In cross-examination, Dr. Pisesky was shown by defence counsel an
actual metal shelf that purported to be similar to the shelf that fell and
struck the plaintiff’s knee.  Counsel asked Dr. Pisesky if the shelf could
have caused the injury alleged by the plaintiff.  Dr. Pisesky stated yes.

[25]        
The report of Dr. White concluded that upon his examination, Ms. Battagliola
“probably had a blow and bruise to the right patella area in the indeterminate
past.”  Based on the information he had as of the date of his report, he stated
that Ms. Battagliola’s knee injury “should slowly resolve over time but
may take a while yet.”

Discussion

[26]        
I am satisfied that the medical evidence supports Ms. Battagliola’s
evidence that her right knee was injured by the metal shelf hitting her knee
and that as a result she suffers from ongoing pain.  In this regard, Dr. Pisesky
was specifically asked under cross-examination if the shelf presented to him in
the courtroom and identified by defence counsel as being similar to the shelf
that struck Ms. Battagliola’s knee could have caused her injury.  Dr. Pisesky
answered in the affirmative.  He was not challenged on this answer.

[27]        
However, I am of the view that the negative impacts are not quite as
debilitating as asserted.  The medical evidence, as pointed out by defence
counsel, uses descriptors such as “mild”, “mildly”, and “moderately”.  I also
note that with respect to the visible observations of wasting, Dr. Pisesky
agreed that the report of Dr. Werry, who saw the plaintiff in June 2007
and whose report Dr. Pisesky reviewed in preparing his report, stated that
the plaintiff’s two thigh circumferences were normal on June 7, 2010 and
that the plaintiff had maintained a sufficient level of activity to avoid thigh
atrophy.  Dr. Pisesky agreed that it was possible that something could
have happened after June 7, 2010.

[28]        
I also note that while Ms. Battagliola testified that she has
significant difficulties with bending her knees, she had the confidence to enrol
in a program to become a first-aid attendant.  The training and actual work
requires considerable physical ability, including bending, as people in need of
aid are often prone on the ground.  While she says that she experienced
difficulty with the cardiopulmonary resuscitation training because of the need
for her to kneel and do compressions, she passed the test and testified that
she has a desire to continue on with further training and to find full-time employment
as a first-aid attendant.  Ms. Battagliola is to be commended for her
initiative, however this indicates that her current limitations are not as
severe as her personal account suggests.

[29]        
I also found the absence of witnesses who have had frequent contact with
Ms. Battagliola both before and after the incident problematic in terms of
gauging the degree of difficulty experienced by the plaintiff; for example her
children.  The evidence of Mr. Waryk was somewhat helpful.  He stated
that, prior to the accident, she displayed no physical limitations and was able
to “keep up” with him in dancing.  His evidence of her ability to dance after
the accident related to only one observation after the accident.  He provided
no real explanation for why Ms. Battagliola did not dance much that
evening.  He states that she complained that she was tired.  There was
certainly no reference to her knee.  The same goes for Ms. Gibbs, whose
observations were of limited usefulness because they were only after the plaintiff’s
accident.  I also have taken into consideration that the plaintiff sought out
and worked as a server for a period of time in Kelowna, which requires a fair
amount of standing, bending and walking.

[30]        
The plaintiff submits that the non-pecuniary damages fall in the range
of $40,000 to $80,000.  The following cases were submitted in support of this
position: Poulton v. Inderbosch, 2010 BCSC 711; Penner v. Silk,
2009 BCSC 1682; Mori v. Weeks, 2001 BCSC 1094; and Foley v.
Imperial Oil Ltd., 2010 BCSC 797, aff’d 2011 BCCA 262.

[31]        
The defendant submits that non-pecuniary damages fall in the range of $15,000
to $20,000.  The following cases were submitted to provide guidance in support
of this position: Hickey (Guardian of) v. Canada Safeway Limited, 1998
CanLII 4874 (B.C.S.C.); Litwinski v. Zaurrini, 2000 BCSC 409; and Fillion
v. Balko, 2003 BCSC 419.

[32]        
It is agreed that a list of non-exhaustive factors to take into account
have been identified in Stapley v. Hejslet, 2006 BCCA 34 at para. 46.

[33]        
In considering the circumstances of this case, the age of Ms. Battagliola;
the period of time over which her condition has continued; the medical evidence
of Dr. Pisesky that symptoms will continue on indefinitely but that they
can be controlled to a certain extent by his recommendations and that there
should be a noticeable benefit with orthotics; and my finding that her pain is
not as debilitating as indicated in the plaintiff’s case, I assess
non-pecuniary damages as $28,000.

[34]        
In terms of special damages, the plaintiff submits that the following expenses
should be allowed:

(a)           
Acupuncture                                    $32.10

(b)           
Physiotherapy (Peace Arch)           $120.00

(c)           
Physiotherapy (Rutland)                 $180.00

(d)           
Dr. White visits $ 80.00

 TOTAL: $412.10

[35]        
The defence did not object to these damages, only expressing some
reservations over the physiotherapy sessions in 2010.  However, given my
findings, I am of the view that these are expenses that should be reimbursed. 
As a result, the plaintiff is awarded $412.10 as special damages.

[36]        
In terms of future care costs, the plaintiff submits that the
recommended physiotherapy sessions are in the order of $60.00 per session.  At
eight sessions, this is $480.00.  In regards to orthotics, the evidence
provided is that the initial set would cost $450.00.  The plaintiff submits
that it is reasonable to allow the full cost of the initial orthotics and half
the cost of each subsequent replacement set.  The plaintiff says that assuming
a lifespan of eighty years, Ms. Battagliola will require a further five to
seven pairs of orthotics and that by using the mid-point of six at $225 for
each set, the total lifetime costs for the replacement sets would be $1,350. 
The total future care costs equal $2,280.

[37]        
The defendant questioned whether the orthotics were related to the
injury but did not take serious objection to these costs.

[38]        
I am satisfied that these items are medically justified, reasonable and
will be used.  I award damages for future care costs of $2,280.

[39]        
The defendant submits that the plaintiff failed to take reasonable steps
to mitigate her damages.  The argument appears to be focused on Ms. Battagliola’s
reliance on non-modern medical solutions in treating herself shortly after the incident
and her lack of action when she returned to Canada when it is submitted that
she had the means to obtain treatment.  I am not persuaded that
Ms. Battagliola failed to mitigate.  In this case, Ms. Battagliola
hoped that she would recover within a few months of the incident.  This was
reasonable.  Her efforts at self-treatment were to address her pain.  When
things did not progress, she went to a physician and followed the
recommendations by attending physiotherapy.  Things then seemed to be overtaken
by her marriage and move to California where she lived in marginal
circumstances.  Upon her return, she had little in terms of means and was
attempting to reset her life.  She paid out-of-pocket for her appointments to Dr. White
while she awaited BC health coverage.  The defendant has not met the evidential
burden in regard to the failure to mitigate.

Conclusion

[40]        
The plaintiff is awarded the following:

(a)           
non-pecuniary damages:    $28,000.00

(b)           
special damages:                   $412.10

(c)           
future cost of care: $  2,280.00

 TOTAL: $30,692.10

[41]        
If the parties have submissions on costs, they should do so by
scheduling an appearance through trial scheduling.  Otherwise the plaintiff will
be awarded costs as set out under Rule 15-1(15).

“The
Honourable Mr. Justice Masuhara”