IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130218

Docket: M103059

Registry:
Vancouver

Between:

Emilija
Bulatovic

Plaintiff

And

Ferdinand
Siebert

Defendant

Before:
The Honourable Mr. Justice Steeves

Reasons for Judgment

Introduction

[1]            
The plaintiff seeks damages for neck pain and headaches she claims as a
result of being hit by a vehicle driven by the defendant. The plaintiff was a
pedestrian in a crosswalk on November 23, 2009. She was hit by the defendant’s
car when, according to her, she had the right of way.

[2]            
There is no dispute that the defendant’s vehicle made contact with the
plaintiff in the crosswalk. However, according to the defendant, the plaintiff
failed to take reasonable care when she elected to cross the street against a “Don’t
Walk” pedestrian sign. The defendant submits that the plaintiff “collided” with
the defendant’s vehicle. In the alternative, if the defendant is liable, he
disputes the extent of the damages at issue.

[3]            
Therefore, both liability and quantum are in dispute.

Background

[4]            
The plaintiff is Emilija Bulatovic. She is currently 56 years old,
married, and she has two grown-up daughters. Her husband works as a station
attendant at the Vancouver Airport. The plaintiff and her husband came to
Canada in 1994 from Bosnia-Herzegovina. They live in Richmond, B.C.

[5]            
Prior to coming to Canada, the plaintiff had training and experience in
accounting. For the first couple of years in Canada, she worked in a factory
and, at the same time, she attempted to refresh her accounting skills. She was
able to obtain accounting work for a large retailer in Vancouver from 2000-2001.
She then had to work again in manufacturing and other work until, in 2005, she
obtained work at a casino in Richmond, B.C. The work at the casino was, and is,
as a pastry chef. She prepares and sets out various baked goods for events and
for buffets.

[6]            
The plaintiff testified that prior to the November 2009 accident, she
had an active and interesting life. She was healthy and injury-free. She and
her husband enjoyed walks, especially with their dog, sometimes three times per
day. Her husband bought her a bicycle and she would use it for day trips
sometimes. The family home is a townhouse but it allowed for a small garden. The
plaintiff did the gardening and the upkeep for the rest of the yard.

[7]            
The plaintiff testified that she did most of the chores in the home
before the accident, such as cooking, cleaning, and laundry. Sewing was her
“passion” and she made clothes for her children when they were young. She was
also handy with some home repairs.

The Accident

[8]            
On November 23, 2009, the plaintiff was walking by herself, south on the
east side of Cooney Road in Richmond, British Columbia. It was about 5:00 p.m.,
almost dark, and it was raining. She approached Granville Avenue, a cross
street with two lanes of traffic going east and two lanes going west and a
median between the two directions. Cooney Road turns into St. Albans on the opposite,
south side of Granville Avenue.

[9]            
The intersection at Cooney Road and Granville Avenue is regulated by
traffic and pedestrian signals and by crosswalks. Information from the City of
Richmond indicates that, for the crosswalk where the accident occurred, the “Walk”
signal is eight seconds, the flashing “Don’t Walk” signal is twenty seconds,
and the solid “Don’t Walk” signal is six seconds. The pedestrian signal is
operated by pedestrians pushing a button to activate the signal.

[10]        
The plaintiff testified that she had made this trip before. She stopped
at the curb on the northeast corner of Granville Avenue and she pushed the
button for the pedestrian signal. She waited for the pedestrian signal to
indicate “Walk”. Then, “as soon as I saw white … I started walking into the
crosswalk”. When she was “close to the middle”, she noticed the pedestrian
signal change to a flashing “Don’t Walk”. At this point she had crossed the two
lanes of westbound traffic, she had crossed the median and she had stepped into
the two lanes of eastbound traffic on Granville Avenue.

[11]        
As the plaintiff recounted it, she was then hit by a car coming from
behind her on her right. This was the defendant’s car and it was turning left
from Cooney Road onto Granville Avenue, behind and over the right shoulder of
the plaintiff. The plaintiff testified that the defendant’s car appeared with
“no warning.”

[12]        
The point of impact was, according to the plaintiff, the “second door”
on the left side of the defendant’s car. This was the door behind the driver’s
door. She fell to the ground on her right shoulder and she remembered her legs
leaving the ground but she did not think she hit her head. She also remembered,
while on the ground, thinking that the traffic light had changed and there was
traffic going from west to east. She was scared of being hit by this traffic
and she moved across the road to the other, south side, of Granville Avenue.

[13]        
She explained that, when she arrived at the sidewalk on Granville
Avenue, she leaned on a pole. The defendant had pulled over and stopped on Granville
Avenue at that point, he got out of his car and came to speak to her. The
plaintiff testified that he asked her if she was alright; there is a dispute
about how much time elapsed before this conversation took place. The plaintiff
testified that she tried to memorize the license plate number of the
defendant’s car but she could not concentrate. She was, in her words, “stressed
and confused”. She tried to put the license number in her cell phone but she
could not use the phone. According to the plaintiff, a woman who was also there
(the defendant’s wife) wrote down the information and gave it to the plaintiff.
She testified that another man was also there.

[14]        
In cross-examination, the plaintiff denied she was walking through the
crosswalk quickly. She said she was going at a “reasonable” pace and she did
not stop. She denied having her head down. She was focussed ahead and she did
not see any cars; the first time she was aware of the defendant’s vehicle was
when she was hit.

[15]        
The plaintiff agreed that after the accident she walked to the curb. Her
recollection of the conversation with the defendant was that he asked if she
was okay and she said she was not okay. The defendant testified that the
plaintiff said several times “I shouldn’t have done that”. She denied saying
that and she explained this by saying “it is not in my vocabulary”. The
plaintiff was asked specifically whether she said she “should not have done
that” because she was going against a “Don’t Walk” signal. She denied this. The
pedestrian sign was flashing, but “I had plenty of time to cross”; it was not
the first time she had crossed and she had no reason to rush.

[16]        
The defendant also testified about the accident.

[17]        
He had just picked up his wife, who was coming home from work, and they
were driving home. The defendant and his wife speak fluent English but their
first language is German. They drove south on Cooney Road and stopped at the
red light on Granville Avenue to make a left hand turn. When the light changed
to green, the defendant eased his vehicle into the intersection and then stopped
to wait for oncoming traffic to clear. The traffic light in front of the
defendant turned yellow and he made his left turn. Information from the City of
Richmond indicates that the yellow or amber light is timed for four seconds. As
will be seen, whether the light was yellow when the defendant made his turn is
contentious.

[18]        
In his evidence, the defendant said that as he turned and crossed the
intersection and entered the crosswalk, he noticed a person on his left
crossing Granville Avenue as a pedestrian. She was running, according to the
defendant. He swerved his vehicle to the left and, in the defendant’s words,
the plaintiff “bumped into” the defendant’s vehicle. About the same time, the
defendant heard his wife yell “pedestrian” in German. The point of contact was
on the left side of the vehicle behind the driver’s door. The defendant
“immediately” pulled over to the curb on Granville Avenue and parked. The defendant
got out of his car but he testified that he could not see the plaintiff. He
stood on the sidewalk for, in his estimation, about forty to fifty seconds and
then he noticed a woman walking north towards him on St. Albans (the
continuation of Cooney Road, north of Granville Avenue). On the defendant’s
description the plaintiff had apparently walked across Granville Avenue and
continued south down St. Albans Street. She then turned around and walked back
to the intersection where she talked to the defendant and his wife.

[19]        
In his evidence the defendant described the plaintiff coming close to
him and repeating, “I should not have done that”. The defendant asked the
plaintiff what she meant but he received no answer. He agreed that she seemed
to be in shock. He asked her if she was alright and he told her he was sorry;
in his evidence he said the words he used were, “I feel bad, I did not see you”.
He offered his insurance information to the plaintiff but she declined. She did
ask for his phone number and, according to the defendant, she entered it into
her cell phone. He also testified that “just before this” another person
arrived. This turned out to be Tony Sheppard, a witness.

[20]        
The defendant returned to his car with his wife and they drove away. He
then realized he did not have any information about the plaintiff. He returned
to the intersection but he could not see her anywhere.

[21]        
In cross-examination, the defendant agreed that he could see south from
the intersection into St. Albans Street without difficulty. He was looking for
a break in the traffic. He was “one hundred percent sure” there was no break
before the traffic light turned amber/yellow. When the plaintiff and the
defendant’s car made contact, the pedestrian light was flashing red “Don’t
Walk”, according to the defendant.

[22]        
At this point, the defendant did not look left again because he believed
it was clear. He agreed in cross-examination that he did not look to the left. He
confirmed in his evidence the statement to this effect in discovery. He stopped
his car after it made contact with the plaintiff and he knew she was injured. He
could not remember any conversation with his wife at the time or after he
parked at the curb, except for her saying “pedestrian” in German. He agreed he
saw the plaintiff too late and there was nothing preventing him from seeing her
earlier.

[23]        
The defendant testified that when the plaintiff walked towards him and
his wife, she was “a little confused”. He did not notice her strong accent when
she spoke. According to the defendant, Mr. Sheppard appeared about two to five
minutes after the impact. When the defendant was asked if his wife was angry,
he replied, “we were both in shock”. He agreed that his wife said to him in the
car, while they were driving away, that he should report the accident to the
Insurance Corporation of B.C. (ICBC). He replied “not yet”. In discovery, the
defendant said his wife “gave me shit” and she said “you should have paid more
attention”. He replied to her that he did not see the plaintiff. He confirmed
this account in his evidence at trial.

[24]        
Rita Siebert is the wife of the defendant and she also testified.

[25]        
She confirmed that the defendant picked her up and was driving her home
on November 23, 2009. They were driving south on Cooney Road and they stopped
for a red traffic light to turn left on Granville Avenue. When the light turned
green, the defendant drove the car into the intersection and stopped about
one-third into the intersection. The oncoming traffic cleared, the traffic
light turned yellow, and the car slowly turned left. Ms. Siebert described the
car almost through the crosswalk and straightening out when she noticed on the
left a “black flash”. She described it as a person running. She yelled
“pedestrian” in German, and at the same time she felt a bump at the left rear
door of the car. She saw the plaintiff through the rear side window, not the
windshield.

[26]        
The defendant parked the car by the curb on Granville Avenue; Ms. Siebert
got out with the defendant but they could not see anyone. Then Ms. Siebert
noticed the plaintiff walking towards them. The defendant said to the plaintiff
he was sorry, but he did not see her. Ms. Siebert testified that the plaintiff
said more than once, “I should not have done that” but there is no explanation
what that meant.

[27]        
In cross-examination, Ms. Siebert was asked if she was unhappy with the
defendant’s actions and she said she was “unhappy with the whole situation”. It
was upsetting and she had never experienced that sort of thing before. She
agreed she told the defendant he should have been more careful and she agreed
that she told him he should report the accident to ICBC. She works for ICBC. According
to Ms. Siebert, the defendant replied that the plaintiff said she was okay and
he had “examined all avenues”. Ms. Siebert said that she told the defendant
that he should still contact ICBC.

[28]        
There was a witness to the accident, Mr. Sheppard.

[29]        
He was driving east on Granville Avenue to go home from work. He stopped
at the intersection with Cooney Road as the first car in the curb lane. This
was at the southwest corner of the intersection and there was another car
beside him to his left. He saw the plaintiff in the crosswalk going south,
across the intersection, with the “Walk” signal. He also saw the defendant’s
vehicle coming from Cooney Road, going south to turn left onto Granville Avenue.
The defendant’s car drove forward after the traffic was clear in front of it. Mr.
Sheppard testified that when the plaintiff was “just past” the halfway part of
Granville Avenue, he saw her make contact with the defendant’s car. According
to Mr. Sheppard, she hit the right side of the car with “quite a thud”. At this
point, he said, the pedestrian signal was flashing “yellow” with “Don’t Walk”. (More
than one witness used yellow and amber to mean the same thing.) According to Mr.
Sheppard, the plaintiff fell to the ground, got up, and walked to the other
side of Granville Avenue. The light defendant pulled his car up and stopped at
the curb.

[30]        
At this point, Mr. Sheppard was still stopped waiting for his light to
change so he could proceed east on Granville Avenue. He testified that his
traffic light was still red after the impact. When he could proceed, he went
through the intersection and pulled over to park in front of the defendant’s
vehicle. The plaintiff was leaning against a pole “in a state of shock” and she
“was not making a lot of sense”, according to Mr. Sheppard. The defendant and a
woman were with her. Mr. Sheppard gave the plaintiff his phone number.

[31]        
In cross-examination, it was suggested to Mr. Sheppard that the
defendant’s car actually stopped in the intersection, rather than doing a
rolling stop. He replied that was not how he remembered it. He was focussing on
the car rather than on any of the lights but the plaintiff was “right under the
pedestrian light” and he could see it change from “Walk” to “Don’t Walk”. He
was asked if the impact was on the left side of the defendant’s car rather than
on the right side. He replied, “to the best of my recollection”, the plaintiff
was “bouncing along” the right side of the vehicle.

[32]        
Mr. Sheppard provided a witness statement to ICBC on July 14, 2010. It
was recorded by Susanna Ang, an adjuster with ICBC. The statement, in part, was
as follows,

…Spoke to witness Tony Sheppard.
He was on Granville heading east. It was dark and rainy that day. He noticed a
car coming south on Cooney and make a left turn to head east onto Granville. The
light was yellow already. There had been a pedestrian crossing the road at
that time. She was more than halfway already. He can’t recall what color she
had been wearing…[emphasis added]

[33]        
In cross-examination Mr. Sheppard denied that he meant that the traffic
light was yellow. He stated that he had “reflected on it” and it was the
pedestrian light that was yellow. He also said that his statement “may have
been interpreted” to mean that the traffic signal was yellow but he “intended
to say it was the pedestrian light.

[34]        
Ms. Ang testified. She said that part of her job as an adjuster is to
keep notes of interviews with witnesses such as Mr. Sheppard. She confirmed
that she took the notes and she reviewed them prior to giving evidence. She
stated that Mr. Sheppard said that the traffic light was yellow. She could not
remember if she asked or Mr. Sheppard referred to the pedestrian light. In
cross-examination Ms. Ang was asked whether her evidence was only based on her
notes. She replied that her notes “triggered” her memory. She agreed that Mr.
Sheppard had no idea what she wrote down. She also agreed that the notes do not
refer to the traffic light being yellow.

After the Accident

[35]        
The plaintiff was able to walk home from the accident with minimal
symptoms. Later in the evening, she noticed more pain in the right shoulder and
headaches. There were also bruises on her right hip and into the right leg. She
did not sleep well that night.

[36]        
The next morning she still had a headache but it was less severe, her
right shoulder was more painful. The right leg was painful but she could walk.
She decided to go to work. She was the only one working in her department that
day and she thought she could get through it. Her colleagues helped her with
some duties. However, about noon she decided she could not work, she told a
manager, and her husband came to pick her up. They went to a walk-in clinic and
the plaintiff was examined by Dr. Smeeta Desai-Ranchod, a family practitioner. Following
an examination in which head injury was ruled out, the plaintiff was advised to
go home and rest.

[37]        
The plaintiff testified that one week after the accident, she continued
to have headaches as well as pain in her right arm and shoulder. She had
difficulty lifting and carrying things.

[38]        
The headaches were described by the plaintiff as being at the back of
the head, over the top, and into the eyes. They were constant for the first two
weeks, mostly severe but sometimes less so. She was resting and using over the
counter medications. The shoulder and arm pain also continued, with the
shoulder pain reaching into the neck. Sleeping was a problem. Her initial pain
in the left leg and hip resolved.

[39]        
As above, the plaintiff worked on November 24, 2009, (for six hours) and
then did not work for the next four days. She worked the following two weeks
but was off work the week of December 15-19, 2009. Attempts at reduced work
hours and a graduated return took place into 2010, with a return to full time
hours in August 2010. She did not think she was ready to return to work full
time but her employer put pressure on her to return.

[40]        
She continues to work as a pastry chef but she described in her evidence
various problems with the work. For example, she has to take shortcuts moving
trays of baked goods by using a guest elevator rather than a staff elevator. The
latter requires her to push trays over a ridge and that is difficult for her
shoulder and neck. She is concerned about being found out about using the wrong
elevator. She testified that she does “what is asked” at work but she has to do
it the easiest way. Cutting frozen cakes with a large knife is a significant
part of her duties and this is difficult with her shoulder. She can decorate
cakes as long as the piping bag is full and soft.

[41]        
Overall, she is now considering retirement in order to make her life
more manageable, but she cannot afford to retire. She testified that she would
not be considering retirement but for the accident.

[42]        
The plaintiff has tried a number of treatments, including physiotherapy,
massage therapy, laser acupuncture, and injections. She was able to go on a
vacation to Cuba in 2010. The plaintiff testified that her injury has caused
significant negative impacts in her life. She is no longer able to bake or cook
for her family or to look after the house. Her husband and daughters help out
more now. She comes home from work “very tired” and she has to rest to “save
myself for tomorrow”. She cannot sew unless it is “necessary” and she cannot do
tasks like painting and small repairs. Her ability to spend time with her
grandchildren is now restricted.

[43]        
In her evidence at trial, the plaintiff described her current symptoms,
as of December 2012. The neck “still bothers” her but it depends on how much
she has to work. By the end of the work week, she is very painful and tired. The
shoulder is “the same as the neck” and the pain always goes between the neck and
shoulder. She still gets headaches, mostly at the end of her work week. They
can last one or two days. At least one or two nights per week it is hard to
either get to sleep or stay asleep. She has massage therapy every week and that
gives her some relief. Her family also gives her massages. She exercises every
morning before going to work. Current medication includes two or three Tylenol
per day.

[44]        
In cross-examination, the plaintiff was asked if she had improved. She had
said in discovery that her condition had “mostly” improved. She agreed she had
improved. She had also described a problem with her right hand, numbness and
sometimes pain into the shoulder and arm. She had headaches “like everybody
else” before the accident but afterwards they were different, in the back of
the head. The plaintiff had an injury to her left hand in October 2010 when she
tripped and caught her finger on the sidewalk. She denied any ongoing problems
from that incident.

Expert Evidence

[45]        
The plaintiff entered into evidence three expert reports from Dr. Desai-Ranchod,
Dr. Mark Adrian (a specialist in physical medicine and rehabilitation), and
from an occupational therapist, Ms. Katie Barr. The defendant did not submit any
expert evidence.

[46]        
I summarize the evidence of the three experts as follows.

(a)      Dr. Smeeta Desai-Ranchod (date of report: March 7, 2012)

[47]        
Dr. Desai-Ranchod was the physician that the plaintiff saw the day after
the accident on November 23, 2009. She continues to see the plaintiff and her
chart was reviewed in some detail in her examination-in-chief and in
cross-examination.

[48]        
In her report of March 7, 2012, Dr. Desai-Ranchod diagnosed soft tissue
injury to the neck, right hip, knee and leg, as well as headaches with
dizziness (post-concussion injury) arising out the November 2009 accident. In
cross-examination, she ruled out concussion. Treatment included massage
therapy, physiotherapy, trigger point injections, laser acupuncture therapy,
and a graduated return to work.

[49]        
With regards to prognosis, further treatment, and effect upon
employment, Dr. Desai-Ranchod stated in her report:

4.         Prognosis:

Patient has recovered 60-80% from injuries however muscular
spasms will recur with any strenuous activity, resulting in need for massage
therapy, physiotherapy, and laser acupuncture therapy. As client advances in
age, ability to continue same workload will be impacted as muscle spasms with
ongoing headaches will recur and limit her function.

5.         Further treatment:

She has been advised to have regular monthly massage therapy.
During acute exacerbations she has been advised to commence laser acupuncture
and trigger point injections.

6.         Opinion as to effect of injuries upon employment:

Ms. Bulatovic has no other skill
set and she is dependent on her present job. With her present soft tissue
injuries and good probability of recurring, it is unlikely she could train or
perform for any other job which would be less demanding.

[50]        
In cross-examination Dr. Desai-Ranchod’s chart was reviewed in some
detail. She agreed that the first record of dizziness after the November 2009
accident was in July 2010. Her chart recorded that on March 4, 2010 the
plaintiff described being much improved with a marked decrease in pain. No MRI
was ordered and there was only an x-ray done of the right knee and hip, not the
neck. Dr. Desai-Ranchod was concerned about the plaintiff getting back to work.
This was encouraged earlier on and it included one incident where Dr. Desai-Ranchod
“confronted” the plaintiff’s employer about her lifting too much weight (in Dr.
Desai-Ranchod’s words). A graduated return to work was put in place and by
October 2010 the plaintiff was cleared to work eight hour days.

(b)      Dr. Mark Adrian (report
dated: February 27, 2012, completed March 19, 2012)

[51]        
Dr. Adrian is a physical medicine and rehabilitation specialist and he
examined the plaintiff on February 27, 2012.

[52]        
On examination, the plaintiff was found to be pleasant and cooperative. She
had a normal appearing gait and a full and pain-free range of motion in her
lower back. Her neck extension and right rotation were seventy-five percent of
normal due to pain symptoms. Left rotation was full but that triggered neck
pain as well. Forward flexion was full, but also triggered neck pain. There was
tenderness present over the mid-cervical spine segments. A neurological
examination was negative. A musculoskeletal examination demonstrated pain
involving the right shoulder cap with flexion and adduction. Internal rotation
was full but produced discomfort with the right shoulder. Other upper body
tests revealed pain, discomfort, and tenderness on the right side.

[53]        
Dr. Adrian opined that the plaintiff suffers from chronic mechanical
neck pain. She has headaches that are triggered by the neck pain and related to
the neck. There was no information about problems with the plaintiff’s neck
prior to the November 2009 accident. Dr. Adrian concluded that the neck pain
symptoms were causally related to that accident. Right shoulder cap pain was
noted and this was triggered by activities that physically load the right
rotator cuff. Dr. Adrian opined that this was due to right rotator cuff
tendinopathy. Further, these symptoms were causally related to the 2009
accident.

[54]        
With regards to prognosis and functional capacity, Dr. Adrian stated as
follows:

Prognosis:

In general, individuals suffering from mechanical neck pain
or soft tissue pain (rotator cuff tendinopathy) following an accident can
experience improvement over time. Some individuals, however, experience
persistent pain despite the passage of time. In other words, not all
individuals recover from these types of injuries. In my experience, individuals
suffering from persistent mechanical spinal pain or soft tissue-related pain
beyond two years from the date of injury are unlikely to experience further
significant improvement.

In Ms. Bulatovic’s situation, over two years have elapsed
since the accident date. She experiences persistent pain symptoms involving her
neck and right shoulder that affect her activity levels. The prognosis for
further recovery of the injuries suffered in the accident over time is poor.

Functional Capacity:

Ms. Bulatovic will probably
continue to experience difficulty performing employment, recreational, or
household activities that involve prolonged static or awkward positioning
involving her neck; forceful pushing or pulling; prolonged or repetitive
reaching; or heavy or repetitive lifting. These physical limitations are
unlikely to improve with time. Ms. Bulatovic is probably permanently partially
disabled as a result of the injuries suffered in the accident.

[55]        
Dr. Adrian also made the following therapeutic recommendations:

Ms. Bulatovic may benefit with the involvement of a personal
trainer to instruct her in a therapeutic exercise program, working on
strengthening and stabilizing the neck and right shoulder blade region, and
progressive right rotator cuff strengthening. The goals of the exercise program
are to optimize Ms. Bulatovic’s fitness of her neck and shoulder. It is
unlikely, however, that exercise will "cure" her symptoms.

Ms. Bulatovic experiences difficulty performing certain work
activities that involve her neck and right shoulder. She may benefit with the
involvement of an occupational therapist to perform a worksite visit. It is
possible that with optimization of the ergonomic set-up of the worksite,
certain work activities may be less uncomfortable for Ms. Bulatovic.

Ms. Bulatovic may benefit with a
trial of a right subacromial steroid injection. This procedure involves placing
anti-inflammatory medication (steroid medication) adjacent to the rotator cuff.
It is possible that this procedure could assist with Ms. Bulatovic’s right
shoulder pain. The degree or duration of improvement with this type of
procedure is unpredictable.

[56]        
In cross-examination, Dr. Adrian acknowledged that there was no mention
in his report that the plaintiff had received injections and laser acupuncture
from Dr. Desai-Ranchod. He stated that the plaintiff might have mentioned it in
his interview with her. He denied that the plaintiff had mentioned any
headaches before the November 2009 accident. He also stated that the headaches were
a manifestation of the neck problems rather than arising from the brain itself.

[57]        
Dr. Adrian was also asked whether the plaintiff’s complaints were purely
subjective. He acknowledged some subjectivity with pain but he also stated that
some of the symptoms were reproducible by him on examination and, therefore,
they were objective. He agreed that most people with soft-tissue injuries
recover over time but about 10-15% do not recover. He opined that the
plaintiff’s symptoms were stable and they were not expected to get better or
worse.

(c)      Katie Barr, Registered
Physiotherapist (report dated: July 31, 2012)

[58]        
Ms. Barr is a registered physiotherapist and she conducted a physical
capacity evaluation of the plaintiff on July 17, 2012.

[59]        
With regards to effort testing, the plaintiff presented with “mixed
behavioural and effort profiles”. There were some behavioural findings that
“had a mild effect on the comprehensiveness of functional testing”. As well,
there were “indications of less than full effort on testing of grip strength
and on testing of strength capacity”. However overall, she was assessed as
having given sufficient effort during the physical capacity evaluation such
that test results can be relied upon to be reflective of her current physical
capacity, particularly as it relates to her physical limits in the presence of
pain.

[60]        
A musculoskeletal review demonstrated postural abnormalities “mild
wasting of the muscle belly” and other findings. Range of motion of all joints
was within normal limits with the exception of neck side flexion and rotation
and right shoulder for external rotation. These were limited to approximately
90% of normal. The plaintiff’s movement patterns at her right shoulder were
considered slow and guarded and she required extra effort to move her right hip
through a full range of extension. She reported pain with all right shoulder
and hip movements. Neurological testing was unremarkable.

[61]        
By way of a summary of the plaintiff’s primary restrictions, Ms. Barr
stated the following:

1. Body Position (Standing/Walking). Ms. Bulatovic
is not restricted from occupations that require standing or walking on a
frequent basis, but in my opinion she would perform best if static standing
tasks were limited to 10-minute intervals and walking tasks were limited to
5-minute intervals.

2. Body Dexterity tasks (Stooping/Crouching).
Ms. Bulatovic is restricted from performing stooping on a frequent or repetitive
basis or for greater than 2-minute intervals. She qualifies for occupations
that require occasional to frequent kneeling, but such tasks should not be
required repetitively and should be limited to 4-minute intervals. She did not
demonstrate the ability to perform intermittent or sustained crouching in a
functional manner, and as such, she has been assessed as restricted in this
regard.

3. Limb Coordination
(Climbing/Balancing/Reaching/Handling). Ms. Bulatovic is restricted to
infrequent and short-duration climbing of stairs (such as 1 flight) to enter or
exit a work place only. A handrail should be available for her use. Balancing
tasks are limited to changing body positions in a controlled manner and to
working on level surfaces. Reaching is permitted on both an occasional and
frequent basis, but Ms. Bulatovic has been assessed as being best suited to
jobs where she is able to alternate between reaching with her right (dominant)
and left (non-dominant) arm and where pace of work is not a critical factor. Also,
right-sided reaching requirements should be predominantly at below chest level
and intermittent in nature or, if sustained, should be limited to less than
1-minute intervals. Assuming a work-intensive posture should be limited to
10-minute intervals occasionally. Neck extension should also be minimized when
reaching to overhead. Of note, if significant use of awkward arm postures or
application of a force is also required, Ms. Bulatovic’s tolerance to reaching
may be further impacted, such that she may be only able to reach with the right
arm on an occasional basis. Handling is permitted on a frequent basis as long
as speed of work is not a critical factor and handling requirements are
consistent with her tolerance to other associated Physical Activity Factors.

4. Strength. Based on her demonstrated
performance, Ms. Bulatovic is restricted to lifting, pushing and pulling
within a limited strength category (i.e., up to 5 kilograms/ 11 pounds) and
carrying within a light strength category (i.e.. 9.1 kilograms/20 pounds).

5. Activity Tolerance.
Ms. Bulatovic is able to work on a full-time basis, but based on her
demonstrated performance, she would be best suited to jobs where speed of work
is not a critical factor and where breaks (such as 15 minutes for coffee twice
daily and at least 30 minutes for lunch) are offered on a consistent basis.

[62]        
With regards to the plaintiff’s employment, Ms. Barr noted that the
plaintiff qualified for the strength demands of a pastry cook helper as defined
in the National Occupational Classification, but for carrying tasks only. She
also demonstrated potential limitations and restrictions with respect to
reaching, handling, and static standing. As a summary of the plaintiff’s
employability, Ms. Barr stated as follows:

In summary, while Ms. Bulatovic
is currently able to perform her work, she requires duty modification (in the
form of altering her work station or relying on her left/non-dominant and
unaffected limb to perform work), assistance from co-workers and pain-relieving
medication in order to manage her symptoms and overcome her physical
limitations. As such, her ability to sustain her work over the long term is in
question particularly should her current pain experience persist. Job security
may also be an issue should she be found to no longer meet the expectations of
her employer. Also, in those areas where Ms. Bulatovic may be exceeding her
physical capacity in the performance of her work tasks, she may be at risk of
further aggravation or injury. She may also be at risk of a repetitive strain
injury with over-reliance on her left limb. Relying on the medical opinions
provided to date, her current functional limitations appear to be a direct
result of the injuries she sustained in the accident and her ongoing experience
of pain in this regard.

[63]        
Ms. Barr also recommended physiotherapy treatment, kinesiologist
monitoring and pain management education in order to increase her employability
and assist with pain management.

[64]        
In cross-examination, Ms. Barr agreed she was not retained to give an
opinion on physical exercises that would be appropriate for the plaintiff. During
her assessment with Ms. Barr, the plaintiff described right shoulder pain as
constant but varying in intensity. Ms. Barr was asked about subjective complaints
by the plaintiff and Ms. Barr denied that was all she considered. She matched
objective findings with subjective complaints to assess whether the latter were
valid. Ms. Barr agreed that most people with soft-tissue injuries recover
completely. However, pain that lasts for more than six months is considered
chronic pain and pain for more than two years suggests there will be little
improvement.

Analysis

[65]        
As above, liability and quantum are at issue.

Liability

[66]        
On November 23, 2009 there was an accident involving the plaintiff and
the defendant’s vehicle. It was early evening, it was dark and it was raining. The
accident took place at the intersection of Clooney Road and Granville Avenue. In
Richmond, B.C.

[67]        
Specifically, the accident occurred in a crosswalk on the south side of
the median on Granville Avenue as the plaintiff was walking south. The
defendant was driving his vehicle and turning left from Cooney Road onto
Granville Avenue, with his wife as a passenger. The intersection is regulated
by traffic and pedestrian signals. The plaintiff’s injuries resulted from
either the negligence of the plaintiff, or the defendant, or the negligence of both
of them. That much is not in dispute.

[68]        
Other facts are seriously contested. One of these is whether the
plaintiff entered the intersection on a “Walk” signal.

[69]        
The plaintiff testified that she waited on the northeast corner of the
intersection after she pushed the button for a “Walk” signal. When that signal
appeared she stepped into the crosswalk to walk across Granville Avenue. On the
other hand, the defendant submits that the plaintiff started to cross Granville
Avenue when the signal said start “Don’t Walk”.

[70]        
The starting point for the defendant’s submission is that his vehicle
turned left when the traffic light was yellow. The significance of the yellow
light, according to the defendant, relates to the timing sequence of the
traffic and pedestrian lights at the intersection. Relying on information
provided by the City of Richmond, it is submitted that it was not possible for
the plaintiff to step off the curb on a “Walk” pedestrian signal and for the
defendant to turn on a yellow light.

[71]        
A key part of the defendant’s submission is his evidence that he slowly
turned left on a yellow light. His wife, who was in the car with him, testified
in virtually the same terms about an event that occurred three years ago. A
related matter is that the defendant wrote his statement for ICBC with the
assistance of his family, including his wife who works for ICBC. The defendant
agreed in cross examination that he had actually memorized the statement by the
time he gave his evidence in this court. For these reasons, I find that there
is reason to question the reliability of the defendant’s evidence and that of
his wife.

[72]        
The defendant’s timing/sequencing argument is countered by one made on
behalf of the plaintiff, also based on timing and sequences. It challenges the
assertion by the defendant that he turned left on a yellow light.

[73]        
The plaintiff relies on the evidence of Mr. Sheppard that, when he witnessed
the accident, he was stopped in his car at a red light (facing east on
Granville Avenue). He testified that his light did not turn green for fifteen
to thirty seconds. He then crossed the intersection, parked in front of the defendant’s
vehicle and walked to the corner, where the plaintiff was talking to the
defendant and his wife. The defendant estimated in his evidence that Mr. Sheppard
arrived about two and one-half to three minutes after the accident. The defendant’s
wife, Ms. Siebert thought it was two to two and one-half minutes. The result,
according to the plaintiff and using the information on timing from the City of
Richmond, is that the defendant turned before the traffic light turned yellow,
when the light was green. Therefore, the plaintiff started across Granville
Avenue with a “Walk” signal.

[74]        
There are also issues of reliability with respect to the evidence of Mr.
Sheppard’s.

[75]        
First, there is the statement he gave to ICBC and that is recorded in
the notes of Ms. Ang. As above, Mr. Sheppard was recorded as saying “the light
was yellow already.” In his evidence he stated that he was referring to the
pedestrian signal, rather than the traffic light. As Ms. Ang confirmed in her
evidence, there is no reference in the notes to a specific light with regards
to the light being yellow. On the other hand, the reference to the yellow light
does follow a sentence referring to the movement of the defendant’s vehicle. At
best, this is confusing evidence.

[76]        
Mr. Sheppard also testified that the plaintiff and the defendant’s car
made contact on the right side of the vehicle. This is inconsistent with all
the other accounts of the accident, including the plaintiff’s. I find that the
point of contact between the plaintiff and the defendant’s vehicle was on the
left side of the vehicle, by the rear passenger door.

[77]        
Overall I find that Mr. Sheppard’s evidence as a whole is not reliable.

[78]        
I acknowledge the logic of the timing/sequences arguments of each party
but, of course, they both cannot be correct. As well, as above, there are
problems with the underlying facts of these arguments. I also note that the
plaintiff was not cross-examined about whether she left the curb on “Walk” or
“Don’t Walk” signals. Similarly, the defendant was not challenged about whether
he turned left on a yellow or green light. I conclude that the arguments based
on timing and sequencing are of a speculative nature.

[79]        
Section 132 of the Motor Vehicle Act , R.S.B.C. 1996, c.318, states
as follows,

Pedestrian controls

132 (1) When the word "walk" or an outline of a
walking person is exhibited at an intersection by a pedestrian traffic control
signal, a pedestrian may proceed across the roadway in the direction of the
signal in a marked or unmarked crosswalk and has the right of way over all
vehicles in the intersection or any adjacent crosswalk.

(2)        When the word "walk" or an outline of a
walking person is exhibited at a place other than an intersection by a
pedestrian traffic control signal, a pedestrian may proceed across the roadway
in the direction of the signal and has the right of way over all vehicles.

(3)        When the word "wait", the words
"don’t walk" or an outline of a raised hand are exhibited at an
intersection or at a place other than an intersection by a pedestrian traffic
control signal,

(a)        a pedestrian must not
enter the roadway, and

(b)        a pedestrian proceeding
across the roadway and facing the word "wait", the words "don’t
walk", or an outline of a raised hand exhibited after he or she entered
the roadway

(i) must proceed to
the sidewalk as quickly as possible, and

(ii) has the right of way for that purpose
over all vehicles.

[80]        
I note that the defendant characterizes the contact between the
plaintiff and the defendant’s vehicle as the former “colliding” with the latter.
On this view, the plaintiff somehow was responsible, in whole or in part, for
the accident. It is true that the point of impact was the rear passenger door
on the driver’s side, rather than the front of the vehicle. There is no
evidence of the speed of the vehicle. However, the plaintiff was entitled to
proceed through the crosswalk with the protection of the right of way. It is
possible she had her head down but that is speculation on the part of the
defendant.

[81]        
The accident happened very quickly and it was dark and rainy. I find
that neither the defendant nor his wife had time to see the plaintiff
beforehand. That is, they could not see her running. As they testified, they
did not know of the plaintiff until the accident. As well, if the plaintiff was
hurrying to cross Granville Avenue after the pedestrian signal turned to “Don’t
Walk” that is understandable and is consistent with section 132(3)(b) of the Motor
Vehicle Act. Finally, I note the defendant’s evidence in cross-examination
that he did not see the plaintiff until it was too late and that there was
nothing preventing him from seeing her earlier. I find that is an accurate
description of the accident and the November 2009 accident was entirely in the
control of the defendant.

[82]        
More generally, the reason for the legal protection of pedestrians in
crosswalks is the significant inequality in speed and force between a motor
vehicle and a pedestrian. A pedestrian is entitled to walk through a crosswalk,
taking reasonable precautions consistent with having the right of way, knowing
that she is safe. I find that the plaintiff took those precautions and she is
entitled to the legal protection of having the right of way under section
132(1) of the Motor Vehicle Act.

[83]        
I also adopt the comments of a previous judgement (Hooper v. Nair, 2009
BCSC 862 at para. 32),

I accept the plaintiff’s
submission that in order to prove that a plaintiff pedestrian was
contributorily negligent, the defendant driver bears the onus of establishing
not only inadequate attention on the part of the pedestrian but also must show
that by the time the pedestrian realized the driver was not going to yield the
right-of-way to the pedestrian, that it would at that point have been possible
for the pedestrian to avoid the driver’s car. As well, the driver must show
that a reasonable person in the circumstances of the pedestrian would have
taken and succeeded in actions which would have avoided impact with the
driver’s car:  Olesik v. Mackin (23 February 1987), Vancouver B860365 (S.C.);
Pinto v. Rana, [1993] B.C.J. No. 1312 (S.C.).

[84]        
I find that the plaintiff stepped into the crosswalk on Granville
Avenue, going south, when the pedestrian signal said “Walk”. I accept her
evidence that she pushed the button that controlled the pedestrian light and
she waited for it to turn to “Walk”. Again, her evidence on this point was not
directly challenged. The evidence and submissions that the plaintiff took
inadequate attention or could have somehow avoided the accident are not, in my
view, persuasive. More persuasive, is the defendant’s evidence that he could
have looked to his left in order to see the plaintiff.

[85]        
It follows from Section 132(1) and my findings above that the plaintiff
entered the crosswalk with a “Walk” signal, that she had the right of way over
all vehicles, including the defendant. It also follows that the defendant was
negligent in not looking for pedestrians in the crosswalk when he made his left
turn. To be clear, I do not find that the plaintiff was contributorily
negligent.

Quantum

[86]        
As a result of my conclusion above that the defendant was solely
responsible for the November 2009 accident, the plaintiff is entitled to
damages without any apportionment.

[87]        
I assess those damages under the following headings.

Past income loss

[88]        
It is agreed that the plaintiff is entitled to past income loss in the
amount of $7,100, net of taxes. I fix damages in that amount.

Special damages

[89]        
The plaintiff claims an amount of $2,377.50. This is made up of expenses
paid by the plaintiff for physiotherapy, chiropractic treatment, massage
therapy and laser acupuncture.

[90]        
The defendant acknowledges that special damages are usually not
contentious but the plaintiff provided documentation for her claim only “recently.”
The defendant’s concern relates to re-imbursement of expenses to the plaintiff
from benefit plans through her work.

[91]        
 I agree with the plaintiff that whether receipts are provided or not,
and whether the employer paid all or part of the benefits, is not determinative.
Any reimbursement from a benefit carrier is a collateral benefit and is not
deducted from special damages (Cunningham v. Wheeler, [1994] 1 S.C.R.
359).

[92]        
I fix special damages in the amount of $2,377.50.

Non-pecuniary damages

[93]        
A previous judgment has set out the legal approach to non-pecuniary
damages (Rhodes v. Biggar, 2010 BCSC 762):

[140] It is now well-accepted law that the statement of the
legal test for causation is that set out in the case of Resurfice Corp. v.
Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333 at paras. 21-23:

[21] First, the basic test for
determining causation remains the “but for” test. This applies to multi-cause
injuries. The plaintiff bears the burden of showing that “but for” the
negligent act or omission of each defendant, the injury would not have
occurred. Having done this, contributory negligence may be apportioned, as
permitted by statute.

[22] This fundamental rule has
never been displaced and remains the primary test for causation in negligence
actions. As stated in Athey v. Leonati, at para. 14 per Major,
J., “[t]he general, but not conclusive, test for causation is the “but for”
test, which requires the plaintiff to show that the injury would not have
occurred but for the negligence of the defendant”. Similarly as I noted in Blackwater
v. Plint, at para. 78, “[t]he rules of causation consider generally whether
‘but for’ the defendant’s acts, the plaintiff’s damages would have been
incurred on a balance of probabilities.”

[23] The “but for” test recognizes
that compensation for negligent conduct should only be made “where a
substantial connection between the injury and the defendant’s conduct” is
present. It ensures that a defendant will not be held liable for the
plaintiff’s injuries where they “may very well be due to factors unconnected to
the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327,
per Sopinka, J.

[141] The purpose of non-pecuniary damage awards is to
compensate the plaintiff for “pain, suffering, loss of enjoyment of life and
loss of amenities”: Jackson v. Lai, 2007 BCSC 1023 at para. 134; see
also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, 83
D.L.R. (3d) 452; and Kuskis v. Hon Tin, 2008 BCSC 862 [“Kuskis”].
While each award must be made with reference to the particular circumstances
and facts of the case, other cases may serve as a guide to assist the Court in
arriving at an award that is just and fair to both parties: Kuskis, at
para. 136.

…

[144] There are a number of factors that courts must take
into account when assessing this type of claim. Madam Justice Kirkpatrick,
writing for the majority, in Stapley v. Hejslet, 2006 BCCA 34, 263
D.L.R. (4th) 19, outlines the factors to consider, at para. 46:

[46] The inexhaustive list of
common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that
influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or
impairment of life;

I would add the following factors,
although they may arguably be subsumed in the above list:

(g) impairment of family, marital
and social relationships;

(h) impairment of physical and
mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang v.
Clayton, [2005] B.C.J. No. 163 (Q.L.), 2005 BCCA 54).

…

[146] The role that damages plays is to place the plaintiff,
as much as possible, in her original position. It is not the obligation of the
defendant to put the plaintiff in a better condition than she was in. As noted
in Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 35, 140 D.L.R. (4^th)
235, per Mr. Justice Major:

 …

[94]        
The plaintiff is 57 years old. She has no pre-existing conditions or
other injuries that are relevant. She had a fall while walking her dog in 2010
when she tripped on the sidewalk. Dr. Desai-Ranchod described this as a minor
contusion to the left hand and I find she is fully recovered from this
temporary and minor injury. The defendant explored the possibility of a carpal
tunnel syndrome but was not successful.

[95]        
The plaintiff’s symptoms include neck and shoulder pain and headaches. The
general physician, Dr. Desai-Ranchod, has diagnosed soft tissue injury to the
neck. Dr. Adrian, a physiatrist, found reduced neck rotation on the right and
extension. There was full left rotation and forward flexion but with pain. There
was also tenderness over the mid-cervical spine and pain involving the right
shoulder cap. Other upper body tests revealed pain, discomfort and tenderness. Dr.
Adrian diagnosed chronic mechanical neck pain and he thought the headaches were
triggered by the neck pain and related to the neck. She has been in pain for
more than two years and she is considered to be in the small category of
patients who will not experience significant recovery. The symptoms are stable
in the sense of not likely to get better or worse in the future. The prognosis
is poor.

[96]        
The plaintiff has improved since the November 2009 accident. Dr. Desai-Ranchod
opined that she has recovered sixty to seventy percent and Dr. Adrian also
agreed there had been improvement. This is to be expected. However, the
defendant emphasizes this aspect of the plaintiff’s progress as a way to
minimize her injuries. I acknowledge the improvement but there is no real doubt
that she continues with symptoms of pain in the neck and shoulder and with
headaches.

[97]        
The family life of the plaintiff has been negatively affected by her injuries.
She no longer is able to spend active time with her grandchildren nor can she
do minor physical activities with her husband such as bicycling. She relies on
her husband and daughters to take on many of the household chores because she
is no longer able to do them. She had a modest garden before the November 2009
accident but this is now left untended.

[98]        
These injuries are substantially connected to the negligence of the
defendant since the plaintiff would not have them but for the November 2009 accident.

[99]        
According to the plaintiff the range for non-pecuniary damages in this
case is $65,000 to $75,000. On the other hand, the defendant submits that the
range is $30,000 to $40,000.

[100]     Turning to
the authorities relied on by the defendant there is the case of Bartel v.
Milliken, 2012 BCSC 563. There the plaintiff was injured in a motor vehicle
accident and suffered injuries to her back and neck. About six months after the
accident, at the time of trial, the symptoms had mostly resolved although there
was intermittent lower back pain. Activities like gardening and walking were
restricted. As well, the plaintiff had shoulder problems before the accident
and the shoulder symptoms could not be attributed to the accident. Finally the
expert evidence was that it was likely there would be significant improvement,
if not complete resolution with treatment. Non-pecuniary damages were fixed at
$35,000.

[101]     In another
case relied on by the defendant, Cameron v. Hsu, 2012 BCSC 56, the
plaintiff was rear-ended in his vehicle by another vehicle. This caused
problems with his neck and shoulder. He also suffered headaches and problems
with his right hand and wrist as well as depression he claimed as a result of
the accident. At the time of trial the plaintiff suffered tightness in the
shoulder and neck and there was a pre-existing condition with the latter. There
was no lost time from work. The trial judge concluded that the depression was
not related to the accident and he found that the plaintiff had not followed
reasonable treatment suggestions. Non-pecuniary damages were assessed at
$40,000.

[102]     In my view
the above two cases are distinguishable from the facts in the instant case. The
symptoms of the plaintiff here are not mostly resolved and there is ongoing and
chronic pain. As well, there is lost time from work and the plaintiff has
followed all treatment suggestions. Finally, it is significant that the
plaintiff in this case did not have any pre-existing condition. For these
reasons I conclude that an amount of non-pecuniary damages in excess of $40,000
is warranted.

[103]     I next
note two of the cases relied on by the plaintiff.

[104]     In Schipilow
v. Minch et al, 2006 BCSC 1786 the plaintiff was hit by an articulated bus
as she was standing on the road beside a parked car. She was assessed as being
forty percent liable for the accident. She suffered abrasions and the right
wrist was severely fractured, requiring surgery. At trial, six years later, the
expert evidence was of restricted flexion, extension and rotation of the neck
as well as pain and tenderness in the right shoulder, wrist pain and pain in
the jaw. The plaintiff had also developed a chronic pain disorder including symptoms
of disturbed sleep and depressed mood. Some, but not all, of the dental
problems were accepted as a result of the accident.

[105]     The
conclusion of the trial judge in Schipilow was that the accident caused
significant changes in the plaintiff’s life including withdrawal from sports
and hobbies and restricted ability to do household chores. Ability to focus and
concentrate was diminished and overall there was a dramatic change in the
plaintiff’s life. Non-pecuniary damages were assessed at $75,000.

[106]     There are
some similarities between the situation of the plaintiff in the instant case
and the one in Schipilow. For example, daily activities such as hobbies
were restricted for both. However it is clear that the injuries to the
plaintiff in Schipilow and their aftermath were more serious. The wrist
required surgery and there was a chronic pain disorder that resulted in sleep
problems and an inability to concentrate. For this reason I conclude that
damages for the plaintiff in the instant case should be at an amount less than
the damages in Schipilow.

[107]     In Rhodes
v. Biggar, 2010 BCSC 762 the plaintiff was the same age at the date of the
accident as the plaintiff in this case. As a result of a motor vehicle accident
she suffered damage to her neck, back and shoulder. The expert evidence was
that the plaintiff would never be symptom free. There was a loss of activities
such as gardening and the plaintiff was working only two half days a week
rather than the two full days a week she worked before the accident. The trial
judge expressed concern about the plaintiff not being forthright with examining
doctors and concern about concealment of income by the plaintiff. This is set
out at the beginning of the judgment but there is no specific inclusion of this
issue in the assessment of damages. Non-pecuniary damages were set at $60,000,
with a discount of twenty-five percent for the pre-existing condition.

[108]     There are
strong similarities between the facts of Rhodes and the situation of the
plaintiff in this case. These include the age of the plaintiffs and the chronic
nature of neck and shoulder pain. There is no suggestion that the plaintiff in
this case has concealed her medical condition or that she has concealed income.
As well there is no pre-existing injury.

[109]     Bearing in
mind these cases and others presented by counsel, I conclude that non-pecuniary
damages in this case should be assessed at an amount of $65,000. That figure
recognizes the comparison with Rhodes and it recognizes the fact that
the plaintiff here did not conceal her medical condition or her income.

Loss of housekeeping capacity

[110]    
The plaintiff seeks damages under this head in the amount of $15,000. The
defendant says there should be no damages.

[111]    
Loss of housekeeping capacity has been described as follows,

. . . it is now well established that a plaintiff whose
ability to perform housekeeping services is diminished in part or in whole
ought to be compensated for that loss. It is equally well established that the
loss of housekeeping capacity is the plaintiff’s and not that of her family.
When family members have gratuitously done the work the plaintiff can no longer
do and the tasks they perform have a market value, that value provides a
tangible indication of the loss the plaintiff has suffered and enables the
court to assign a specific economic value in monetary terms to the loss. This
does not mean the loss is that of the family members or that they are to be
compensated. Their provision of services evidences the plaintiff’s loss of
capacity and provides a basis for valuing that loss. The loss remains the
plaintiff’s loss of economic capacity.

Paller v. Paller, 2004
BCSC 977 at para. 57, citing McTavish v. MacGillivray, [2000] B.C.J. No.
507 at para. 63 (C.A.).

[112]     Previous
decisions have also cautioned trial judges to use restraint in awarding these
types of damages so as to ensure they are commensurate with the loss (Kroeker
v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178, at para. 29).

[113]     The
plaintiff does have a reduced capacity to perform the household chores she did
prior to the November 2009 accident. She is unable to cook meals on a regular
basis for her family, she is unable to clean the house, she is unable to sew
clothes for her family or herself and she is unable to do house repairs as she
did prior to the accident. On the other hand, as noted by expert evidence, she
is not totally disabled. While the plaintiff provided evidence about
housekeeping activities related to, for example, sewing clothes for her two
daughters,  her daughters are now grown up and the opportunity for the
plaintiff to sew for her children has passed, although that opportunity might
have been available with respect to the grandchildren but for the November 2009
accident.

[114]     There is
no question that the plaintiff’s husband and daughters are now helping in the
family home. As above, this does not have to be a commercial relationship to
support damages for loss of housekeeping capacity. I conclude that a one-time
amount of $5,000 is appropriate.

Cost of future care

[115]     The plaintiff
seeks damages for future care to pay for massage, physiotherapy treatment and
for a kinesiologist. This would be intensive in the first year and then at a
reduced amount for the balance of ten years. The total claimed is approximately
$25,000.

[116]     The defendant
says the plaintiff has given inconsistent statements about the beneficial value
of treatment. As well, it is alleged that the plaintiff’s doctors have rubber
stamped what the plaintiff asked for. The result is that no damages for future
care should be paid, according to the defendant.

[117]     I
recognize the value of improving the conditioning and strength of the plaintiff
to assist her in dealing with her pain. And the plaintiff will need
physiotherapy or massage for flare ups from time to time. However, I do not
agree that the kind of regime proposed by the plaintiff is appropriate.

[118]     In my view
the following approach is appropriate,

Loss of future earning capacity

[119]    
The plaintiff seeks an amount of $75,000 as damages for loss of future
earning capacity. This is based, in part, on annual earnings of $35,000. The
defendant says no damages should be awarded under this head.

[120]    
The plaintiff is able to work but with restrictions. There was a
difficult and lengthy graduated return to work. She is now working full time
but symptoms continue. She has learned some short cuts to reduce the weight she
has to manage but she is legitimately concerned that these will be
countermanded by her employer. The first few days of the work week are
manageable but by the end of the week the plaintiff struggles to get to work
and she has to immediately rest when she comes home. Headaches are at their
worst at the end of the week and can carry over during the plaintiff’s days off.
She takes two to three Tylenol per day. The plaintiff is also legitimately
concerned about how long she will be able to keep working.

[121]    
The occupational therapist retained by the plaintiff concluded that the
plaintiff is restricted to infrequent climbing of stairs for short durations with
the use of a handrail. Her other restrictions include reaching and neck extension.
The plaintiff is capable of working full time with these restrictions and
others. She is capable of doing the work of a pastry chef with restrictions.

[122]    
I adopt the following description from a previous judgement about the
approach to future earning capacity (Tsalamandris v. McLeod, 2012 BCCA
239 at para. 31),

The appellants do contest how the trial judge then went about
assessing that loss [of future earning capacity]. The trial judge set out to
apply the principles canvassed in Rosvold v. Dunlop, 2001 BCCA 1, saying
at para. 259:

The principles that govern the
measurement of damages for loss of earning capacity were thoroughly discussed
in Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158. The principles
set out in that case can be summarized as follows:

1. the assessment of damages is not
a precise mathematical calculation but a matter of judgment;

2. a plaintiff is entitled to be
put in the position she would have been but for the accident;

3. an award for loss of earning
capacity recognizes that the ability to earn income is an asset and the
plaintiff deserves compensation if this asset has been taken away or impaired;

4. since these damages must often
be based on a hypothetical, the standard of proof of a hypothetical is “real
and substantial possibility” and not mere speculation;

5. the court must consider the real
and substantial possibilities, and give weight to them according to the
percentage chance they would have happened or will happen;

6. one starting approach to
valuation may be to compare the likely future of the plaintiff had the accident
not happened, and the likely future of the plaintiff after the accident has
happened, and to consider the present value of the difference between the
amounts earned under these two scenarios. (I note that in using the word
“likely”, the Court on this point was meaning what hypothetical was a real and
substantial possibility);

7. however, the overall fairness and reasonableness of the
award must be considered, taking into account all of the evidence.

[123]     The cases
suggest an alternate approach, the loss of earnings method, for the assessment
of future earning capacity. These involve the so-called “Brown factors” as
follows (Perren v. Lalari, 2010 BCCA 140 at para. 11),

… In Kwei [Kwei v. Boisclair (1991), 60
B.C.L.R. (2d) 393, 6 B.C.A.C. 314], where it was not possible to assess damages
in a pecuniary way as was done in Steenblok [(1990), 46 B.C.L.R. (2d)
133 (B.C.C.A.)], Taggart J.A., speaking for the Court, held that the correct
approach was to consider the factors described by Finch J., as he then was, in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353. Mr. Kwei had suffered a significant
head injury with significant permanent sequelae that impaired his intellectual
functioning. However, both before and after the accident, he worked at a
variety of low paying jobs, thus making it difficult for him to demonstrate a
pecuniary loss. Mr. Justice Taggart cited the Brown factors with approval:

[25]      The trial judge, as I
have said, referred to the judgment of Mr. Justice Finch in Brown v. Golaiy.
Future loss of earning capacity was at issue in that case. It stemmed from
quite a different type of injury than the injury sustained by the plaintiff in
the case at bar. But I think the considerations referred to by Mr. Justice
Finch at p. 4 of his reasons have application in cases where loss of future
earning capacity is in issue. I refer to this language at p. 4 of Mr. Justice
Finch’s judgment:

 The means by which the value of the lost, 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.

[124]    
There is some value in distinguishing between situations where there is
information available to calculate a loss of earnings (such as work at
different positions before and after the injury) and situations where that
information is not available. The instant case is an example of the latter. The
plaintiff had some difficulty returning to work after the November 2009
accident but, to her credit, she was able to do so. This fact, however, does
not necessarily mean that there is no loss of future earning capacity,

Even a plaintiff able to earn as much after his injury as
before his injury is entitled to compensation for the impairment, because some
occupations will be closed to him, “and it is impossible to say that over his
working life the impairment will not harm his income earning capacity.

Perren v. Lalari 2010 BCCA
140 at para. 15, citing Parypa v. Wickware, 1999 BCCA 88 at para. 63;
also para. 7, citing Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393.

[125]     In this
case, the plaintiff is clearly struggling with her current employment. There is
the work itself which she finds onerous and she attributes this to the effect
of the November 2009 accident. The evidence is that she could manage her work
and also maintain an active family life before the accident. Now, by the end of
the work week, her headaches are severe and she is exhausted. All she can do is
get home on the last work day of the week and get into bed. It is clear that
the plaintiff has limited marketability to work in other positions, given her
disabilities as well as her age. She has some background in accounting,
primarily in the former Yugoslavia, but this has not worked out as an alternate
career and it is unlikely she will now be able to obtain work in that field. The
plaintiff also testified that she now thinks seriously about retirement whereas
before the accident it was something in the distant future.

[126]     I conclude
that there is a real and substantial possibility that the plaintiff’s current
employment is at risk as a result of the November 2009 accident. Further, her
marketability for alternate positions is less than it would have been but for
the accident.

[127]     Quantifying
this loss obviously cannot be a precise exercise. I assess the loss at $35,000.
This is about one year’s earnings and it reflects the possibility that the
plaintiff will be able to work for some time as well as the possibility she
will have to leave her current employment earlier than she would have but for
the accident.

Summary of damages

[128]     By way of
summary, the plaintiff is entitled to the following damages,

Past income loss                                   $7,100.00

Special damages                                   $2,377.50

Non-pecuniary damages                        $65,000.00

Loss of housekeeping capacity               $5,000.00

Cost of future care                                $2,500.00

Loss of future earning capacity $35,000.00

Total                                                     $116,977.00

[129]     The
parties may make submissions on the implementation of this judgement, including
the application of an escalator amount to future costs. The issue of costs can
also be addressed by further submissions received within forty-five days of
this judgement (or appeal or review).

“Steeves,
J.”