IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | McLeod v. Goodman, |
| 2014 BCSC 839 |
Date: 20140513
Docket: 43618
Registry:
Kamloops
Between:
Sheila
Anne McLeod
Plaintiff
And
Thomas
Smith Goodman, Howard Thomas Goodman
and Lissa Goodman
Defendants
Before:
The Honourable Madam Justice Donegan
Reasons for Judgment
Counsel for the Plaintiff: | M.L. Sadden |
Counsel for the Defendants: | J.A. Horne, Q.C. |
Place and Date of Trial/Hearing: | Kamloops, B.C. February 27 – March |
Place and Date of Judgment: | Kamloops, B.C. May 13, 2014 |
Contents
LOSS OF FUTURE EARNING CAPACITY
3. Physical
Conditioning Program
5. Loss
of Housekeeping Services
INTRODUCTION
[1]
Sheila McLeod was injured in a motor vehicle accident on August 14,
2008. Liability is admitted on behalf of the defendants and, therefore, the
issues before this court relate to an assessment of damages claimed for her
injuries. Mrs. McLeod seeks damages for pain, suffering and loss of enjoyment
of life, loss of past earning capacity, loss of future earning capacity, cost
of future care, and special damages.
[2]
The defendants agree the plaintiff is entitled to reasonable
compensation for losses suffered as a result of her injuries, but submit that
her claims are in excess of what is reasonable in light of the evidence and the
law.
[3]
The large body of evidence in this trial comes almost entirely from the
plaintiffs case. The defendants tendered two expert medical reports, but did
not call any viva voce evidence.
THE ACCIDENT
[4]
The accident occurred at approximately 2 p.m. on August 14, 2008. Mrs.
McLeod was driving her vehicle eastbound on Valleyview Drive in Kamloops,
British Columbia, when the vehicle in front of her stopped to turn left at an
intersection. While she was at a full stop behind this vehicle waiting for it
to turn, her vehicle was struck from behind. The defendant driver was
travelling approximately 50 kilometres per hour (kph) before he quickly hit
the brakes and struck Mrs. McLeods vehicle. The impact was significant. Mrs.
McLeods vehicle was declared a total loss. She was taken to hospital by
ambulance.
THE PLAINTIFF – PRE-ACCIDENT
[5]
Several witnesses testified about Mrs. McLeods personal, work, family and
recreational life prior to the accident. None of these witnesses, including
Mrs. McLeod, were challenged in cross-examination. I found all of these witnesses
to be credible and reliable historians who, together, provided a very thorough
picture of her pre and post-accident life.
[6]
Mrs. McLeod has had her fair share of challenges. She has consistently shown
resiliency, courage and strength in the face of adversity.
[7]
Mrs. McLeod was raised by adoptive parents in the Lower Mainland. She
found school difficult, failing grade 1 and ultimately leaving school in grade
9. She left home at this time as well.
[8]
Mrs. McLeod met her first husband, John Vaters, when she was 18 years
old. They had two children: Robert was born in 1985 and Bradley in 1987. The
couple married in 1987.
[9]
In 1985, while pregnant with Robert, Mrs. McLeod was involved in a motor
vehicle accident. Her vehicle was struck by a drunk driver. As a result of this
collision, she suffered some muscle stiffness in her shoulder blade areas. This
pain resolved with chiropractic treatment in approximately three or four
months.
[10]
In 1988, while managing the majority of the household and childcare
responsibilities, Mrs. McLeod chose to upgrade her education in order to pursue
a career. After obtaining her high school equivalency, she completed a care
aide program through Cariboo College in Kamloops. She enjoyed the program and
decided to pursue a career in that field.
[11]
In 1989, Mrs. McLeod obtained employment as a care aide at Overlander Residential
Care Facility (Overlander) in Kamloops. At approximately the same time, Mrs.
McLeod brought her marriage to Mr. Vaters to an end. Mr. Vaters suffered from
alcoholism and was abusive to her.
[12]
After she and Mr. Vaters separated, Mrs. McLeod continued to raise her
two young boys on her own. She continued working at Overlander in order to
support them. Mr. Vaters ongoing contribution to the support of his children
was minimal, if at all.
[13]
In 1991, Mrs. McLeod began a very positive relationship with Carey
Hampton. At approximately this same time, she was diagnosed with fibromyalgia. A
rheumatologist recommended exercise, which prompted Mrs. McLeod to cycle. This
activity assisted with resolution of her symptoms. During the time she was
symptomatic, this condition did not impact her functioning at work or at home.
[14]
Mrs. McLeod and Mr. Hampton enjoyed a true partnership. They both worked
outside of the home and shared household and childcare responsibilities. Mr.
Hampton was employed with Canadian National Railway (CNR) and Mrs. McLeod
continued her employment at Overlander. By all accounts, Mr. Hampton was a
positive addition to her family, a loving husband and step-father.
[15]
Unfortunately, Mr. Hampton developed pancreatic cancer and passed away
in late 1999. His illness left him unable to work the last year of his life. During
those difficult months, Mrs. McLeod demonstrated her resiliency and strength.
She continued to work at Overlander, maintained the household, cared for the
children, and provided in-home care to Mr. Hampton. She was eventually forced
to take some time away from work while caring for Mr. Hampton, but returned to
her employment only one week following his death. Mrs. McLeod recognized that,
despite the familys incredible loss, she was the sole provider for her boys
and had to earn an income. Mrs. McLeod described 1999 as a very difficult year,
but also a very rewarding one in that she was able to care for her husband
before he died.
[16]
During August of 1999, while caring for her terminally ill husband,
raising two children and working at Overlander, Mrs. McLeod was the victim of
another car accident. She again suffered an injury to her shoulder blade areas.
The Insurance Corporation of British Columbia (ICBC) recommended a six-week
rehabilitation program, which she undertook. Mrs. McLeod enjoyed recovery with
this program, but was forced to end it early because of her husbands
deteriorating condition. Following his death, Mrs. McLeod had no lingering
symptoms from the injuries she suffered in the accident. She returned to full
time work and, in 2000, enjoyed the most hours she had ever worked.
[17]
Following Mr. Hamptons death, Mrs. McLeod was again on her own, working
and looking after her two boys. She met her third husband, Brian MacDonnell, in
2000/2001. Unfortunately, this relationship was a very negative one.
[18]
Difficulties arose quickly following their union. Mr. MacDonnell was a
very controlling man. After only four months of living together, he forced
Bradley, who was in his mid-teens, out of the family home. Bradley went to live
with his father. He quickly fell into drug addiction and an anti-social
lifestyle.
[19]
Consistent with his controlling personality, Mr. MacDonnell wanted his
wife to dedicate more time to him and their home. Mrs. McLeod reduced her work
hours to accommodate her husband.
[20]
In 2002, Mrs. McLeod suffered a workplace injury. While re-positioning a
patient in a chair, she hurt her lower back. As a result, she missed a short
time of work, attended physiotherapy for approximately three weeks, and then
returned. She had no physical limitations following her return and was fully
recovered within a very short time frame.
[21]
That same year, she and Mr. MacDonnell won $675,000.00 in a lottery.
Unfortunately, they differed in their approach to the use of this windfall.
Mrs. McLeod wanted to save the money and Mr. MacDonnell wanted to spend it.
This conflict was a factor in the demise of their relationship. Before their
marriage ended, the couple took two trips that saw Mrs. McLeod take some
extended time from work.
[22]
2002 was a year that also saw Mrs. McLeod diagnosed with generalized
anxiety disorder. This condition did not impact her ability to work or maintain
her home, but the symptoms did require treatment. The symptoms included low
mood, nervousness, increased blood pressure and heart palpitations. She was
prescribed medication for this condition, which she took as directed. The
medication successfully treated these symptoms and she continues to take this
medication today.
[23]
Mrs. McLeod and Mr. MacDonnell separated in the fall of 2004. By this
point, Bradley had been living away from Mrs. McLeod for two to three years. Her
motivation in asking her husband to leave was to mainly assist her son. She
felt she had not lived up to her obligations as a mother and was disappointed
in herself. As soon as Mr. MacDonnell left the home, she invited Bradley back
and, given his situation, chose to dedicate herself completely to her sons
recovery. In doing so, she left her employment at Overlander, after 15 years of
continuous employment in a field she enjoyed.
[24]
At the time Mrs. McLeod left Overlander, she held a permanent part-time
position, working five hours a day, five days a week, with some overtime
availability. A fellow co-worker and her supervisor both described her as
dedicated, able and caring. The duties of a care aide are physically and
emotionally demanding. Physically, it includes dressing, feeding, moving and in
other ways caring for elderly and infirm patients. Emotionally, it requires
compassion, kindness and attention. By all accounts, Mrs. McLeod excelled at
her job and was passionate about it. She planned to return to this line of work
following her time at home helping her son recover.
[25]
From 2004 until early 2007, Mrs. McLeod focussed on her son. A single
mother again, she supported her family through a small CNR pension that she received
from Mr. Hamptons estate and by cashing in approximately $50,000.00 held in a
registered retirement savings plan (RRSPs). The RRSPs were all that remained
from her lottery win. She enrolled Bradley in counselling and dedicated herself
to his recovery. His recovery process was a long one, but ultimately
successful.
[26]
Bradley testified. He struck me as a sincere and grateful young man. Mrs.
McLeods decision to focus on his recovery was clearly the right one.
[27]
Mrs. McLeod met her current husband, Brian McLeod, in 2005. Mr. McLeod
is a positive addition to the family. At the time they met, he worked at the
School District in Kamloops. The couple did not live together until 2009, but
while they first dated, they engaged in many healthy activities in and outside
of the home.
[28]
In January of 2007, Mrs. McLeod experienced a minor fall when she slid
down the stairs at her sisters home. She did not suffer any injuries.
[29]
In February of 2007, Mrs. McLeod re-entered the workforce. Bradleys
life had stabilized to the point she felt she could work outside of the home
again. Financially, she needed to return to work as she had drawn down all of
her RRSPs to support herself and her children.
[30]
Mrs. McLeod accepted a position as an in-home care aide for a woman
whose disabilities mandated full-time care. She worked for her for
approximately one year. She worked five or six days a week, four to six hours per
day. The job was a physically demanding one. She was able to perform all aspects
of it. While this employment paid less than she had previously earned at
Overlander, she was pleased to be again working in her field.
[31]
While working for this private client, Mrs. McLeod met and hired Tracey
Burge as a care aide. Ms. Burge quickly moved on from this employment to form
her own caregiving business – Golden Care Services.
[32]
While 2007 was a positive year in that Mrs. McLeod returned to the
workforce, it saw some significant challenges for her as well.
[33]
In August of 2007, her son was seriously injured as a result of a
stabbing incident. She was forced to miss four days of work to travel to
Kelowna and stay by his side in hospital. As one might expect, Mrs. McLeod
experienced significant stress and worsening anxiety as a result of this event.
Her symptoms were treated with medication.
[34]
On October 8, 2007, still coping with this stress, Mrs. McLeod, a
non-drinker, chose to consume alcohol. She then chose to drive her vehicle. Predictably
and regrettably, she drove her vehicle into a light pole. Fortunately, the
injuries she sustained were minor, involving only soreness to her nose and
chest. These injuries resolved in a very short time.
[35]
Mrs. McLeod stopped working for her private client in February of 2008.
Shortly thereafter, she accepted an offer of short-term employment from Tracey
Burge at Golden Care Services. This job required her to care for a 60-year-old
woman with moderate dementia. The duration of the contract was only five days
in the early summer, but it was physically demanding. Mrs. McLeod had no
physical or emotional difficulties with the job. Following this short-term
contract, Ms. Burge offered Mrs. McLeod employment with Golden Care Services.
Mrs. McLeod did not want to start work before August of 2008 because she was in
the process of selling her home at the time.
[36]
Mrs. McLeod sold her home in May/June of 2008. She and Bradley moved
into a condominium elsewhere in Kamloops. Mrs. McLeod was involved in all
aspects of the move, including removing items from the crawl space, packing and
carrying boxes. She had no physical difficulties or limitations. This is
consistent with Mrs. McLeods history of work in and around her home. Over the
years, she had no physical limitations with respect to any household chores,
gardening, landscaping, or repairs. For example, Mrs. McLeod fully participated
in digging up a cobblestone patio, doing electrical work, repairing drywall,
painting, building a stairwell and hauling lumber and other heavy items around
the home over the years.
[37]
Mrs. McLeods plan, following the sale of her home, was to begin work
with Golden Care Services on a part-time basis in mid-August 2008. She expected
the position to move quickly into full time and perhaps later evolve into a
managerial position. She was excited about the opportunity to work in her field
and very interested in full time work. Her pay was to be approximately $17.00 to
$18.00 per hour to start.
[38]
John McLeod and Mrs. McLeod dated for two or three years. They spent
approximately a year apart (2008) while Mr. McLeod determined the direction his
life was to take. In that time, he retired from the School District and decided
to move to Vernon in order to care for his ailing father. Mrs. McLeod remained
in Kamloops and they remained friends during this time apart. The couple
reconciled in January of 2009, several months after the accident.
[39]
The evidence clearly establishes that prior to the accident, Mrs. McLeod
led a very active life. She maintained a clean home. She enjoyed gardening and repair
work in her yard. She was actively involved in her sons lives. Socially, Mrs.
McLeod spent time with friends. She was active outdoors through hiking,
fishing, slow pitch and golf. At work, she was passionate about pursuing her
career and was fully able to perform all of the physical tasks required of her.
She was looking forward to a new position with Golden Care Services. Her
positive, active and full life all came to a crashing halt on August 14, 2008. She
was 43 years old.
THE PLAINTIFF – POST-ACCIDENT
[40]
Mrs. McLeod was taken to hospital from the scene of the accident by
ambulance. She immediately felt pain and stiffness in her neck, mid-back, low
back and hip. She was released from hospital later that day.
[41]
The next day, Mrs. McLeod felt pain throughout her body, specifically in
her shoulders, mid-back and lower back. The pain worsened and expanded to other
areas over the next few days, so she sought further medical help. The
additional areas of pain included radiating pain from her lower back down her
right leg and into her groin area. She had difficulty walking. Mrs. McLeod was
prescribed pain medication, told to start massage therapy, and advised to
follow up with her family doctor. The pain continued and progressively
worsened. She was unable to perform the physical tasks necessary at home or at
work. She did not start her new employment at Golden Care Services.
[42]
From the beginning, Mrs. McLeod pursued many forms of treatment in an
effort to relieve her pain and regain her former active, energetic and full
life.
[43]
In addition to seeing her family doctor and attending for various diagnostic
tests, Mrs. McLeod began attending physiotherapy in September of 2008. She attended
at Kamloops Sport and Orthopedic Massage Therapy Clinic (Kamloops Sport
Clinic) regularly until her move to Vernon in the spring of 2009.
[44]
At her own expense, Mrs. McLeod attended an active rehabilitation
program through Kamloops Sport Clinic from October of 2008 until her move to
Vernon. This program involved many hours of supervised exercise and
strengthening.
[45]
Mrs. McLeod and Bradley moved to Vernon in March of 2009 to be with Mr.
McLeod. Unfortunately, Mrs. McLeods symptoms and pain had not improved. They
had worsened. Unlike the move immediately preceding the accident, Mrs. McLeod
was physically unable to help with any parts of this move.
[46]
Once in Vernon, Mrs. McLeod immediately set up a rehabilitation program.
She kept her family doctor in Kamloops, but sought out other healthcare
providers on her own initiative.
[47]
Mrs. McLeod received treatment from a chiropractor, Dr. Keivit, on 17
occasions between July 2009 and April 2010. Through the Whitehouse Wellness
Centre in Vernon, she saw a massage therapist on 40 occasions between May 2009
and April 2010. She also saw a kinesiologist who established a rehabilitation
program similar to what she had set up in Kamloops. Unfortunately, this program
was not in place long before Mrs. McLeod learned that she required surgery.
[48]
In April of 2009, Mrs. McLeod was sent for a CT scan of her lower back
due to ongoing pain radiating down her right leg. Surgery was recommended as a
result of a herniated disc and was soon performed on July 9, 2009 at Vernon Jubilee
Hospital. Mr. and Mrs. McLeod had married five days earlier.
[49]
The surgery was intended to improve her lower back and right side
sciatic pain. Unfortunately, it only did so only partially and temporarily.
Following the surgery, Mrs. McLeod continued to have debilitating pain in her
lower back. She continued to take medication and attend upon various treatments
to improve her condition. She continued to attempt various household tasks,
with little success.
[50]
The day following her surgery, Mrs. McLeod noticed changes to her
bladder function. Never having experienced problems with her bladder before,
she was understandably concerned when within a few days of the surgery, she
experienced a loss of the sensation alerting her that her bladder was full. She
continues to experience occasional incontinence and has been forced to make
alterations to her lifestyle.
[51]
In November of 2009, Mrs. McLeod commenced a self-funded rehabilitation
program through Meridian Rehabilitation and Consulting. She regularly attended
this exercise and treatment program from November of 2009 until April of 2010.
[52]
In May of 2010, Mr. and Mrs. McLeod, along with Bradley, moved to
Ontario to be close to Mrs. McLeods birth parents, with whom she had a desire
to connect. Her pain and other symptoms persisted and continue to worsen.
Again, Mrs. McLeod was unable to assist with the physical aspects of the move
across the country. She was unable to endure such a road trip with her family
and was forced to fly. The long flight was very difficult for her.
[53]
Mr. McLeod secured employment fairly quickly in Ontario. Fortunately,
his company has an extended health plan that assists Mrs. McLeod with her
treatment costs and prescription expenses. As she did in British Columbia, Mrs.
McLeod continued her diligent efforts to improve her medical condition immediately
upon her relocation. Her efforts have been hampered somewhat by finances, but
she has clearly done all she can within her means.
[54]
Mrs. McLeod secured a family doctor, Dr. Fikry, in the fall of 2010. He
referred Mrs. McLeod to a number of specialists, including an orthopaedic
surgeon, an urologist, and a neurologist. Mrs. McLeod also found a
chiropractor, Dr. Mason, who treated her regularly from November 2010 until
August 2012.
[55]
In December of 2010, Mrs. McLeod hurt herself when she slipped on the
stairs at home. As a result of weakness in her right leg, she slipped and was
forced to grab onto the railing to prevent a fall. In doing so, she
hyper-extended her left arm and injured her already injured shoulder. She lost
some functioning, but through physiotherapy has regained an estimated 85
percent of its post-accident functionality now.
[56]
Dr. Stewart, the neurologist, began to provide regular Botox injections
to her lower back, neck and shoulders to assist with pain management. These
injections are administered every three months. Although they are uncomfortable
to receive, Mrs. McLeod does experience some temporary pain relief from them.
[57]
In the summer of 2012, Dr. Stewart referred Mrs. McLeod to Dr. Billing,
an anesthesiologist specializing in pain management. Since that time, Mrs.
McLeod has seen Dr. Billing every three to four weeks for treatment. His
treatment consists of painful, multiple epidural blocks, epidural steroid and
nerve block injections administered to her lower back, mid back, shoulders,
neck and head. She endures them, and will continue to endure them, because they
provide some temporary relief from her pain.
[58]
The evidence is overwhelming that Mrs. McLeods pain and other physical
symptoms have worsened over time. She has developed chronic pain syndrome. She
has constant pain in her neck, shoulders, face and jaw. She experiences sciatic
pain in her right leg, which impacts its functionality. She has minimal
sensation in order to void her bladder. She experiences headaches periodically
and feels her memory has been negatively affected. The worst pain she
experiences is her lower back. It is constant. It descends toward her tailbone,
spans her back and extends into her groin area. She describes her right buttock
and hip as numb, yet the area will also burn with sharp pain.
[59]
The only pain relief Mrs. McLeod enjoys is the very temporary relief she
receives from Dr. Stewarts and Dr. Billings injections. Dr. Billings
injections provide the greatest relief. She is unable to maintain her home, to
conduct repairs to it, or to garden. She is unable to work outside of the home.
She takes multiple medications that cause fatigue. Her relationship with her
husband is negatively affected. She has no friends or social circle. She is
unable to exercise or engage in any of the outdoor activities that used to
bring her joy. She feels useless.
[60]
I agree with her counsels description of her current condition when he
wrote at page 1 of his closing written submissions:
the injuries Mrs. McLeod sustained in the August 2008 motor
vehicle accident have had devastating consequence upon her quality of life.
Mrs. McLeods life has been forever changed. She has been left in a state of
constant chronic pain. Her prognosis is for no improvement. The expectation is
that her condition will worsen as she ages. She has been rendered permanently
unemployable. She will require ongoing care to help her manage her pain.
She has been transformed from a
previous energetic, upbeat, productive member of our society to a person that
merely exists. She cannot work. She cannot recreate.
[61]
In terms of specific ongoing complaints, Mrs. McLeod suffers from the
following:
a) Neck
[62]
Mrs. McLeod describes decreased range of motion, especially when she
turns onto her left side. She has constant aching and burning pain, which is
only relieved temporarily following injection treatments.
b) Shoulders
[63]
Mrs. McLeod describes continuing pain in both of her shoulders, which is
again only relieved temporarily by injection treatments.
c) Jaw
[64]
Mrs. McLeod describes pain in her jaw which is particularly aggravated
when she eats. She experiences temporary relief following the injection
treatments.
d) Bladder
[65]
Mrs. McLeod continues to experience loss of sensation in her bladder.
This causes occasional incontinence. She has developed behaviours to assist
with managing this condition, but is not always successful.
e) Headaches
[66]
Mrs. McLeod describes almost daily headaches which are only temporarily relieved
by the injection treatments.
f) Memory
[67]
Mrs. McLeod describes a decrease in her ability to recall recent events.
g) Low Back
[68]
This injury is her most debilitating. Mrs. McLeod experiences severe
pain across her lower back and into her hips, buttocks and groin. The pain
causes severe functional limitations, making it difficult to sit or stand for
too long. Bending and lifting are very painful. This pain has progressively worsened.
As with her other areas of pain, she experiences some temporary relief from the
injection treatments.
f) Right Leg
[69]
Mrs. McLeod describes pain and reduced sensation in her right calf. Her
right leg weakens when she is tired. She describes that, on occasion, it does
not feel like it is her own. As a result, everyday tasks such as getting into
and out of a car can be problematic. The injection treatments she receives from
Dr. Billing do not assist with relieving these symptoms.
h) Overall
[70]
As a result of her constant pain involving these various parts of her
body, her life is severely, negatively impacted. She has developed chronic pain
syndrome. As indicated, she is unable to perform tasks at home and in her yard.
She is unable to work outside the home. She is unable to participate in
activities with her husband, affecting their intimacy. She has no energy. She
is isolated. Her inactivity, loss of energy and isolation has led to
substantial weight gain. Her sleep has been affected. She is often tearful and
sad.
[71]
Despite all of this, Mrs. McLeod, in particularly moving testimony,
described that she has not given up hope of improvement. She described herself
as not a quitter and still seeks to do whatever is necessary to improve her
quality of life. I believe her.
[72]
Mr. and Mrs. McLeod want to move back to British Columbia to be near
both of their families as soon as they can afford to do so. This, I accept,
will occur once Mrs. McLeod receives the judgment of this court.
THE EXPERT EVIDENCE
1. Dr. de Wet
[73]
Dr. de Wet is a general practitioner. She was Mrs. McLeods family
doctor from 2004 until Mrs. McLeod left the province in April of 2010. Dr. de
Wets report and supplemental reports are before the court.
[74]
In her July 3, 2013 report, Dr. de Wet opined that Mrs. McLeod sustained
the following injuries in the accident:
– Cervical Sprain
– Lumbal Spine: Lower back pain with pain radiating to the
right leg and toes.
– X-ray showed mild L3 – L4 and S1 Spondylosis
– Impression: Cervical and lumbal
Myofascial Sprain and Lumbal radiculopathy
[75]
She further wrote that Mrs. McLeod also suffered from:
chronic daily headaches secondary to neck sprain. Due to
ongoing pain orthopedic surgeon was consulted, Dr. Jan B. Splawinski. This was
for her ongoing chronic right leg radiculopathy.
She had a decompressive laminotomy and foraminotomy L4 – L5 for
localized spinal stenosis as mentioned before.
After her surgery she continued
to have chronic myofascial pain. Mechanical back pain but symptoms of her
radiculopathy resolved.
[76]
In terms of a diagnosis, she wrote:
– Soft tissue cervical sprain neck with chronic Headaches
(Grade 2)
– Resolved L5 Radiculopathy of
spinal stenosis with ongoing myofascial pain lumbal spine mechanical back pain.
[77]
Dr. de Wet described Mrs. McLeods level of disability in these words:
During the time period August
2008 to her departure from the office she was unable to return to work due to
her physical limitations from the injuries sustained from her MVA.
[78]
In a supplemental report dated September 10, 2013, Dr. de Wet opined
that following a file review, she concluded that Mrs. McLeods current symptoms
and pain are not in any way related to pre-existing factors or injuries.
[79]
Dr. de Wet was not cross-examined on her opinions.
2. Dr. Fikry
[80]
Dr. Fikry is Mrs. McLeods current family doctor. His report of May 9,
2013 is before the court.
[81]
Dr. Fikry began treating Mrs. McLeod in the fall of 2010. Up to the date
of his report, he saw Mrs. McLeod on 34 occasions. His report is extensive. In
it, he outlines his treatment of Mrs. McLeod, his diagnosis, his opinion of her
physical limitations and her prognosis.
[82]
With respect to her injuries, Dr. Fikry wrote:
During the course of treatment I
have provided Ms McLeod with treatment for her neck (cervical spine sprain),
back (lumbar spine sprain) as well as shoulder pain (supraspinatus tendinosis),
in addition to her chronic fibromyalgia pains. To note, the shoulder injury was
sustained in [2012] and was not related to the car accident (page 4).
[83]
With respect to his diagnosis of her current condition and limitations,
he opined:
·
Lumbar spine Degenerative Disc Disease/ Soft tissue sprain/strain
to the lumbar spine with no focal neurological signs or radiculopathy- Limitations:
tender lower thoracic as well as all lumbar spine, right paravertebral
spasm, decreased range of movement mainly extension, painful extension of back.
This is translated into limitations in ability to sit. stand or walk for a
relevant amount of time, in addition to limitation of lifting relevant weights
as well as bending her back. Hence limitations in activities of daily living as
for example; housekeeping tasks, cleaning, dusting, laundry, snow removal, yard
work, in addition to some limitations in grocery shopping,
·
Cervical spine Degenerative Disc Disease/ Soft tissue
sprain/strain to the cervical spine without focal neurological signs,
consistent with WAD-II injury – Limitations: tender lower cervical
spine, right paravertebral spasm, but has normal range of movement, although
painful extension of neck.
·
Bilateral supraspinatus tendinosis (not related to the accident)
·
Generalized Anxiety Disorder
·
Depression/ Post Traumatic Stress Disorder
·
Fibromyalgia
·
Chronic Headaches (page 5).
[84]
In terms of prognosis, Dr. Fikry opined:
Having the pain symptoms for more
than 4 years now, by definition, Ms. McLeod has chronic pain disorder. Although
a percentage of such cases might improve over several years, while the majority
would continue with chronic pain, having fibromyalgia (chronic generalized
muscular pain condition), I do believe that she would have chronic pain for
life. The degenerative disc disease (affecting her neck and her back) is a
chronic slowly progressive condition, so her pain will probably slowly get
worse over time, she might get some exacerbations from time to time, especially
with cold weather (pages 5 and 6).
[85]
Regarding physical limitations as a result of her injuries, he wrote:
I believe that Ms. McLeod would have limitations in ability
to sit. stand or walk for a relevant amount of time, in addition to limitation
of lifting relevant weights as well as bending her back. Hence limitations in
activities of daily living as for example; housekeeping tasks, cleaning,
dusting, laundry, snow removal, yard work, in addition to some limitations in
grocery shopping,….
Having chronic pain syndrome for
more than 4 years, not only the pain would be a challenge to return back, but
also the ability to concentrate would be another major challenge. Also given
her other co-morbidities; Fibromyalgia, Generalized Anxiety Disorder,
Depression, I dont believe that she would be able to return to the workforce
in some capacity in the future. Its the opinion of the writer of that report
that Ms McLeod would be disabled for long term. Indeed she would need help for
the housekeeping tasks as cleaning, laundry, etc., as well as loan care and
snow removal (if she was responsible for those tasks prior to the car
accident).
[86]
With respect to risk of further degenerative changes as a result of her
injuries, Dr. Fikry wrote:
As stated
above, the degenerative disc disease (affecting her neck and her back) is a
chronic slowly progressive condition, so her pain will probably slowly get
worse over time, she might get some exacerbations from time to time, especially
with cold weather. Its my professional opinion that the car accident trauma
would accelerate those degenerative changes in her cervical as well as lumbar
spine and hence her pain.
[87]
Dr. Fikry was not cross-examined on his
opinions.
3. Dr. Billing
[88]
Dr. Billing is a medical doctor who specializes
in anesthesiology and pain and critical care management. His December 20, 2012
report is before the court. He also testified.
[89]
Dr. Billing began treating Mrs. McLeod for pain
management in the summer of 2012. He noted widespread reports of pain,
including to her neck, shoulders, low back, right leg, left side of her face, jaw
and head. He outlined his impression and diagnosis at page 3:
Failed back
syndrome, lumbar disc disease, right sciatica, cervical disc disease,
osteoarthritis of the lumbar and cervical spine, possible capsulitis in the
left shoulder, myofascial pain in both shoulders, atypical facial pain and TMJ
disorder on the left side, cerviogenic headache, chronic pain syndrome,
whiplash type of injury grade II.
[90]
Dr. Billing went on to opine that Mrs. McLeod is
a classic case of chronic pain syndrome.
[91]
He explained that the vast majority of people
who suffer whiplash-type of injuries improve with various interventions, such
as physiotherapy and chiropractic treatments, but between five and ten percent
do not improve. With respect to these patients, he wrote:
when they have
an accident, initially injury is bleeding into the facet joints either cervical
spine, thoracic spine and lumbar spine where ever the impact injury is. These
5-10% of patients heal by fibrous tissue formation and the fibrous tissue can
entrap the nerves and that can perpetuate the pain.
[92]
Dr. Billings unchallenged opinion is that Mrs.
McLeod falls into this unfortunate five to ten percent of patients. As he does
with other chronic pain patients, Dr. Billing provides nerve block, epidural
block, epidural steroid injection and facet joint blocks that tend to improve her
quality of life for a short time (days up to a few weeks) before the pain returns.
He refers to this treatment as a temporary bandage solution.
[93]
In Dr. Billings opinion, Mrs. McLeod will
continue to suffer severe pain. His clear and unchallenged opinion is that Mrs.
McLeods current complaints and symptoms are not in any way related to any
pre-existing factors or injuries. In his view, Mrs. McLeod is totally disabled
and remains unemployable in any field.
4. Dr. Laidlow
[94]
Dr. Laidlow is a medical doctor with a specialty
in physical medicine and rehabilitation. At the request of the defendants, he
assessed Mrs. McLeod on March 25, 2011, nearly three years post-accident.
[95]
Mrs. McLeod reported the following problems to
Dr. Laidlow: low back pain spreading into the right leg, mid-back pain, neck
pain, headaches, decreased sensation in her right leg, reduced bladder function
and social isolation.
[96]
After interviewing and examining her and
reviewing all of her medical records, Dr. Laidlow was of the view that further
investigation was required regarding her lower back, leg pain and altered bladder
sensation problems. Absent further investigations, he opined:
Knowing what we
know as of now, I do feel that she sustained a musculoligamentous strain to the
lumbar area (Whiplash Associated Disorder Type II) which was likely superimposed
on degenerative changes already present in the lumbar spine.
[97]
He further wrote at page 14:
It would appear
to me that the musculoligamentous strain aggravated her pre-existing condition
to the point that it became symptomatic. This may have occurred by some change
in the bulging of the disc, but it is hard to be absolutely sure of that. Given
that the disc bulging was not severe enough to prompt Dr. Splawinski to
consider carrying out surgery, when he was looking at it, it would appear that
this was a minor bulge. Given the fact that the majority of the narrowing
seemed to be due to ligamentum flavum thickening and degenerative changes in
the facet joint, it is quite possible that she would have become symptomatic in
the lower back and legs even if the accident were not to have occurred. It is
very difficult, if not impossible, to know when that would have happened. I
think, on review of the available information, the accident certainly
accelerated the situation to the point that surgery was carried out.
[98]
With respect to Mrs. McLeods mid back and neck
problems, Dr. Laidlow wrote at page 15:
she does have
some mild residual tightness in the posterior neck musculature and likely did
sustain a musculoligamentous strain to the cervical spine and thoracic spine as
a result of the accident. This has left her with some mild muscular tightness
in the area, which does provide some symptoms. This does not seem to be the
major limiting factor for her. Indeed it is much less troublesome than the
lower back.
[99]
With respect to the changes in sensation in her
right leg and her bladder, Dr. Laidlow did not provide an opinion, indicating
that he felt further investigation would be required. He felt she was depressed
and recommended a psychiatric evaluation.
[100]
In terms of prognosis, he wrote:
Without the
further investigations it is difficult to make long term prognoses on her
situation and it is also difficult to outline what would be considered to be
the optimum form of treatment at this time. At the present time she would not
seem to be capable of working as a nurses aide based on my assessment of her
(page 15).
[101] Dr. Laidlow was not cross-examined on his opinions.
5. Dr. Solomons
[102] Dr. Solomons is a psychiatrist who saw Mrs. McLeod on January 17,
2013, at the request of the defendants. In his opinion, Mrs. McLeods anxiety
and depressive disorder preceded the motor vehicle accident and were not caused
by it.
[103]
With respect to Mrs. McLeods past, present and
future ability to work as a result of psychological or psychiatric conditions,
Dr. Solomons wrote:
Her history and
the available clinical records indicate that her previous psychiatric condition
did not impair her ability to work or attend school. There is no indication
that her psychiatric condition following this accident negatively affected her
function or impaired her ability to work or attend school. There is no
psychiatric reason to expect that her psychiatric condition will impair her
ability to work or attend school in the future (page 6).
6. Alison McLean
[104] Occupational therapist, Alison McLean, conducted a Physical Capacity
Evaluation of Mrs. McLeod on May 28, 2013. In addition to her comprehensive
report of July 4, 2013, the court had the benefit of viva voce evidence.
[105] I found Ms. McLeans evaluation of Mrs. McLeod to be thorough and
unbiased. Her opinion was unchallenged that Mrs. McLeod has significant
physical limitations that render her unable to meet the basic requirements of
employment. These limitations are associated with sitting, standing, walking,
bending, crouching, kneeling, balance, climbing, reaching and lifting. Her
opinion is that not only is Mrs. McLeod unable to meet any of the physical
demands of her pre-accident occupation as a care aide, but that she is unemployable
in general.
[106] I accept Ms. McLeans opinions. They are consistent with the
evidence of the civilian witnesses, other experts and with my own observations
of the plaintiffs physical limitations in the courtroom.
7. Derek Nordin
[107] Mr. Nordin is a psychologist and vocational evaluator. He conducted
a vocational assessment of Mrs. McLeod on May 29, 2013. His opinions are set
out in his report of July 23, 2013. He was not requested for cross-examination.
[108]
Based upon Mrs. McLeods presentation, the medical
evidence and Ms. McLeans assessment, Mr. Nordin agreed that Mrs. McLeod cannot
now be considered a candidate for competitive employment. Specifically, he
wrote at pages 14 and 15 of his report:
I do not expect her to be capable of
regularly attending a worksite, nor of consistently producing work of a quality
and/or quantity, and in a safe manner, as to allow her to have any likelihood
of maintaining employment (even in the unlikely event she somehow managed to
successfully market herself to an employer).
Further, based
on available medical information which indicates Mrs. McLeods circumstances
are expected to worsen with time, I expect her inability to participate in the
workforce to continue over the long term as well.
[109] I accept Mr. Nordins opinions. What emerges from the body of
evidence before this court is a clear and consistent picture that Mrs. McLeods
pain and symptoms will only worsen with time. She is currently unemployable as
a result of her physical limitations and, unfortunately, this is not expected
to change.
CAUSATION
[110] The plaintiff submits that the defendants negligence caused or
materially contributed to all of her injuries and current symptoms.
[111] The plaintiff must prove, on a balance of probabilities, that the
defendants negligence caused or materially contributed to an injury. The
defendants negligence need not be the sole cause of the injury, but must be
part of the cause beyond the de minimus range. Causation need not be
determined by scientific precision: Athey v. Leonati, [1996] 3 S.C.R.
458 at paras. 13-17.
[112] The plaintiff must be placed in the position she would have been if
not for the defendants negligence. The defendants must take their victim as
they find her, even if her injuries are more severe than they would be for a normal
person (the thin skull rule). However, the defendants need not compensate her
for any debilitating effects of a pre-existing condition which she would have
experienced anyway (the crumbling skull rule): Athey at paras. 32-35.
[113] The defendants submit that Mrs. McLeod is entitled to be compensated
as she is to be found, but urges the court to scrutinize the evidence
carefully to determine what injuries were actually caused or exacerbated by the
accident. Specifically, the defendants submit that the plaintiffs current
situation has been amplified or negatively impacted by her generalized
anxiety disorder and her depressive disorder. They say that Mrs. McLeod
suffered from chronic anxiety disorder prior to the accident such that any
claim for anxiety and/or depression cannot be said to be compensable. The
defendants also submit that the plaintiff has failed to establish that the July
2009 lower back surgery, its related symptomology, and her reduced bladder
function were caused by the accident.
[114] I am satisfied the defendants tortious act caused all of Mrs.
McLeods injuries. In other words, but for the defendants negligence, Mrs.
McLeod would not have suffered the injuries. Leaving aside her bladder
condition for the moment, she suffered injuries to her neck, mid-back,
shoulders, low back, and right leg. The pain from these injuries has cumulatively
led to chronic pain syndrome in many parts of her body, which has impacted her
emotionally as well. Understandably, her pain and limitations have produced low
mood and feelings of low self-worth.
[115] Mrs. McLeod had pre-existing injuries to her back and shoulders, but
those injuries had long resolved when the accident occurred. Mrs. McLeods
post-accident injury to one of her shoulders healed following physiotherapy.
[116] Mrs. McLeod also experienced symptoms associated with generalized
anxiety disorder in the past. These symptoms were, however, fully managed with
medication at the time of the accident. She also experienced symptoms related
to fibromyalgia in the past, but she had been asymptomatic for many years when
the accident occurred.
[117] With respect to her most significant injury, her lower back, the
defendants argue that the plaintiff has failed to prove that the requirement
for surgery was as a result of injuries sustained in the accident. They submit
that pre-existing degenerative changes to her lumbar spine may have led to
surgery and her current issues in any event.
[118] While Mrs. McLeod did have pre-existing degenerative changes to her
lumbar spine (and other areas of her spine), they were asymptomatic prior to
the accident. Dr. Laidlow opined that the accident accelerated the situation to
the point surgery was carried out. Dr. de Wets opinion supports this as well.
[119] Dr. Laidlow suggested only the possibility those degenerative
changes could have become symptomatic without the accident. He candidly
acknowledged that it is impossible to know when that might have occurred. I am
satisfied, on the whole of the evidence, that there is no measurable risk that
Mrs. McLeods pre-existing degenerative changes in her lumbar or other parts of
her spine would have ever become symptomatic. I am satisfied that the
requirement for surgery was a direct consequence of the injuries she suffered
in the accident.
[120] I am also satisfied that there is no measurable risk that Mrs.
McLeods underlying condition of fibromyalgia would have ever become
symptomatic again. She had been free of any symptoms for many years prior to
the accident.
[121] Unfortunately, Mrs. McLeods injuries are more severe than they
would be for a person without her underlying conditions. In my view, this is a
classic thin skull case and the defendants must take Mrs. McLeod as she is to
be found.
[122] Turning now to Mrs. McLeods ongoing bladder condition, can this be
said to have been caused by injuries suffered in the accident?
[123] Mrs. McLeods bladder problems started the day after her lower back
surgery. No expert evidence has been tendered to explain this condition. Mrs. McLeod
submits that the surgery must have been the cause as there is no other
plausible explanation.
[124]
In Midgley v. Nguyen, 2013 BCSC 693,
Dardi J. wrote at paras. 169-171:
[169] The "but for" test need not be determined
with scientific precision. Rather, causation is a practical question of fact
which can be best answered by ordinary common sense: Snell v. Farrell,
[1990] 2 S.C.R. 311 at 328.
[170] A plaintiff need not establish that a defendant’s
tortious conduct is the sole cause of the injury. A defendant will be fully
liable for the harm suffered by a plaintiff, even if other causal factors for
which he is not responsible were at play in producing the harm, as long as the
plaintiff establishes a substantial connection between the injuries and the
defendant’s negligence beyond the "de minimus" range: Farrant
v. Laktin, 2011 BCCA 336 at paras. 9 and 11; Athey v. Leonati,
[1996] 3 S.C.R. 458; Resurfice Corp v. Hanke, 2007 SCC 7; Clements v.
Clements, 2012 SCC 32; Hunt v. Ugre, 2012 BCSC 1704 at para. 120.
[171] The court must be
cautious when inferring causation from a temporal sequence; that is, from a
consideration of pre-accident versus post-accident condition. In cases where
causation is asserted primarily on a temporal relationship between the negligent
conduct and injury in question, the authorities mandate that a "close
scrutiny of the evidence is required because the inference from a temporal
sequence to a causal connection is not always reliable": Hardychuk
at para. 130. See also: Madill v. Sithivong, 2012 BCCA 62 at para. 20; White
v. Stonestreet, 2006 BCSC 801 at paras. 74-75. However, the authorities
recognise that temporal reasoning is not an illegitimate analysis if invoked in
the appropriate circumstances: Erickson v. Sibble, 2012 BCSC 1880 at
para. 223.
[125] In this
case, temporal reasoning is very compelling. I have found Mrs. McLeods lower
back injury required surgery as a direct result of injuries she suffered in the
accident. She had normal bladder sensation and function before the surgery and
a loss of it nearly immediately thereafter. With no prior problems in this
area, as a matter of common sense, I conclude that the low back surgery is more
likely than not to have caused the bladder problems. As the surgery would not
have been required if not for the defendants tortious act, the plaintiff has
established a substantial connection between her bladder condition and the
negligence beyond the de minimus range.
[126] In
summary, I am satisfied Mrs. McLeod has established that the following injuries
were caused by the defendants negligence:
1) Musculoligamentous
strain to the cervical spine;
2) Chronic headaches;
3) Shoulder pain;
4) Musculoligamentous
strain to the lumbar spine and lumbar radiculopathy causing pain to her lower
back, hips, groin and right leg, resulting in surgical intervention;
5) Partial loss of
bladder sensation and functionality;
6) Widespread chronic
pain syndrome; and
7)
Emotional pain in the form of low mood and feelings of low self-worth.
[127] These
injuries are permanent in nature and expected to worsen over time, although
there is some hope treatment may reduce pain or increase her ability to cope
with it.
NON-PECUNIARY DAMAGES
[128] The plaintiff seeks an award in the range of $140,000.00 to $160,000.00
for non-pecuniary damages. In support of such a range, she provides four cases:
Fox v. Danis, 2005 BCSC 102; Maillet v. Rosenau, 2006 BCSC 10; Carr
v. Simpson, 2010 BCSC 1511 and Eccleston v. Dresen, 2009 BCSC 332.
[129] The defendants submit that an award of $80,000.00 to $90,000.00 is
appropriate and points to the following cases in support of that position: Loveys
v. Fleetham, 2012 BCSC 358; Carson v. Henyecz, 2012 BCSC 1815 and Neyman
v. Wouterse, 2013 BCSC 741.
[130]
Non-pecuniary damages are awarded to compensate a
plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities.
In Stapley v. Hejslet, 2006 BCCA 34, the British Columbia Court of
Appeal outlined factors to be considered when assessing non-pecuniary damages
at para. 46:
[46] The inexhaustive list of common factors cited in
Boyd 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, 2005 BCCA 54).
[131] Awards
made in comparable cases can be helpful to measure such an award, but as each
case depends on its own unique facts, caselaw can serve only as a rough guide: Trites
v. Penner, 2010 BCSC 882 at paras. 118-119.
[132] In Fox,
the plaintiff was 28 years old at the time of the accident. She was a very
active person. As a result of the accident, she suffered a moderately severe
soft tissue injury to her cervical and lumbar spine, a prolapsed disc in her lumbar
spine and compression of one of the nerves in her lumbar spine. The injuries,
permanent in nature, caused her periodic pain in her neck and right shoulder and
chronic pain in her lumbar spine, left buttock and left leg. As a result of her
chronic pain, she was found to be at increased risk for depression. She could
no longer work full time or do any of her former activities. She was awarded
$100,000.00 for non-pecuniary damages.
[133] In Maillet,
the plaintiff was 38 years old at the time of the accident. She had no
significant, relevant pre-existing medical conditions. As a result of injuries
suffered in the accident, she experienced chronic pain syndrome relating to her
head, neck and shoulder areas. She had problems with her right shoulder and
arm, depression, and suffered a mild traumatic brain injury. She was awarded
$110,000.00.
[134] In Carr,
the plaintiff was in her late 30s at the time of the accident. She sustained
multiple injuries in a high impact collision which included neck, upper back
and trapezius pain, tingling down her arms, thoracic outlet syndrome,
headaches, dizziness, injury to her right hand and wrist that required surgery,
meniscus tear to her left knee that required surgery, low back and right hip
pain, and depression as a reaction to chronic pain. This plaintiff was awarded
$100,000.00 for non-pecuniary damages.
[135] In Eccleston,
the plaintiff was 43 years old at the time of the accident. She suffered a
moderate soft tissue injury to her upper back and neck. She developed chronic
pain as a result of those injuries, leading to depression. Her conditions were
likely to be permanent, although there existed some hope that, with treatment,
she might experience reduced pain or increased ability to cope with it. She was
awarded $120,000.00 for non-pecuniary damages, less a ten percent reduction to
reflect the measurable risk of her pre-disposition to depression and related
pain conditions.
[136] Plaintiffs
counsel further submits that none of the above cases reflect a bladder injury
similar to that suffered by Mrs. McLeod and asks the court to add $25,000.00 to
$40,000.00 to any award for non-pecuniary damages.
[137] Although
providing three cases in this area, which I have considered, the defendants
rely primarily on Loveys. In this case, the plaintiff was 44 years old
at the time of the motor vehicle accident. As a result of the accident, this
plaintiff suffered soft tissue injuries to her neck, back and shoulder which
evolved into a chronic pain disorder. Her depression and anxiety were found to
be triggered by non-accident related events, but those psychiatric conditions
may have had an impact on perpetuation of her chronic pain symptoms. The
plaintiff was awarded $65,000.00 for non-pecuniary damages in that case.
[138] Prior to
the accident, Mrs. McLeod was an energetic, hardworking, 43-year-old, single
mother of two. She could handle any challenge life presented her. She had no
physical or emotional limitations preventing her from working in her chosen
field, from maintaining a nice home and yard, from supporting and spending time
with family and friends and engaging in a variety of recreational pursuits.
[139] The
accident has taken much from Mrs. McLeod. As a result of her injuries and their
aftermath, she can, I think, be best described as a shell of her former self.
She suffers severe, daily pain throughout her body for which she is only
granted temporary reprieve when she endures painful injections. She requires
constant pain medication. Mrs. McLeod must adjust her life to deal with this
pain, frequent headaches, fatigue, occasional incontinence and weakness in her
leg. Her emotional suffering is due to her inability to no longer contribute to
her family, to the workforce and to society. Her relationships with her family
are negatively affected. Her social and recreational life is non-existent. In
short, her enjoyment of all aspects of her life has been significantly reduced.
[140] Considering
all of the case authorities provided, I find the Fox decision the most
useful, although I do find Mrs. McLeods losses to be more significant than the
plaintiffs in that case. Ms. Fox did not require surgery and was able to work
at least part-time.
[141] I find the
appropriate award for non-pecuniary damages in this case is $130,000.00.
LOSS OF PAST EARNING CAPACITY
[142] Mrs.
McLeod seeks an award of $170,000.00 for her loss of earnings from the time of
the accident until the time of trial, some five and a half years.
[143] The
defendants submit that $50,000.00 is more appropriate, indicating that
quantification of this loss must be pure guess work. They stress that Mrs.
McLeod has never earned a significant annual income throughout her working
life. Personal and family matters have often interfered.
[144] Mrs.
McLeods chosen occupation was that of a care aide worker. From 1988 until
2003, she worked continually at Overlander. She was very good at her job and
enjoyed it very much.
[145] Mrs.
McLeod left the workforce entirely from 2004 until early 2007. She did so in
order to care for her son, with full intentions of returning to her field
following his recovery. She returned to the workforce in early 2007, securing
employment as a care aide for a private client for the next year. She then secured
a short-term contract with Golden Care Services in the early summer of 2008.
Ms. Burge offered her regular employment after this. I accept Mrs. McLeods
evidence that she intended to accept Ms. Burges offer of employment that
summer, following the sale of her home.
[146] In cross-examination,
Ms. Burge suggested that Mrs. McLeod may have indicated to her in the spring of
2008 that she would be moving away from Kamloops. From this, the defendants ask
me to conclude that Mrs. McLeod would not, therefore, have accepted this offer
of employment. I cannot reach this conclusion for three reasons. First, Ms.
Burge clarified in re-examination that she was unsure about Mrs. McLeods
plans. Second, Mrs. McLeod is a credible and reliable witness. I believe her
evidence. Finally, Mrs. McLeods actions following the sale of her home
demonstrate her intention to remain in Kamloops. She and Bradley moved to a new
home in Kamloops. This clearly supports her evidence that, prior to the
accident, she intended to stay in Kamloops and begin work for Ms. Burge in
mid-August of 2008.
[147] Had the
accident not occurred, she was to start with part-time work, earning $18.00 per
hour. Full time work would have been available a short time later. I accept
that Mrs. McLeod intended to pursue that full-time work, with potential for
over-time and a possible managerial position. Golden Care Services has grown
since that offer of employment was made. The growth of the business, along with
Mrs. McLeods historical work ethic and availability due to Bradleys recovery,
satisfy me that Mrs. McLeod would have obtained full-time employment with Ms. Burge
had she not been injured.
[148] Mrs.
McLeod may have stayed working for Ms. Burge full time or she may have found
other work as a care aide. The evidence demonstrates that full-time care aides
are in demand. They earn approximately $40,000.00 per year.
[149] Robert
Carson, an economist, produced a report dated November 23, 2013 quantifying,
among other things, Mrs. McLeods claim for past loss of income. In his
calculations, he broke the claim down into two parts:
1. August 18,
2008 to April 30, 2010, representing Mrs. McLeods time living in British
Columbia following the accident;
2.
May 1, 2010 to February 24, 2014, representing her time in Ontario
following the accident and prior to trial.
[150] Regarding
her time in British Columbia, Mr. Carson assumed a 40 hour work week at $18.00
per hour. In 2008, he calculated her net income at $11,578.00. In 2009, he
calculated her net income at $31,308.00. In 2010, he calculated her income at
$12,340.00.
[151] With
respect to her time in Ontario, Mr. Carson again assumed full-time earnings,
using $32,908.00 as an average annual income. For 2010 through to February
2014, he calculated her net income at $128,510.00.
[152] Overall,
from the date of the accident to the time of trial, Mr. Carson calculates Mrs.
McLeods total past loss of income at $183,736.00. This is net of any taxes and
employment insurance premiums.
[153] An injured
plaintiff is entitled to compensation for loss of her earning capacity, not
just her lost wages: Ibbitson v. Cooper, 2012 BCCA 249 at para. 19.
[154]
As noted by Madam Justice Arnold-Bailey in Morena v. Dhillon,
2014 BCSC 141, at para. 136, Ibbitson re-affirmed an earlier Court of
Appeal decision where it found that the loss of income a plaintiff would have
earned, but for the injury, is only one measure of a persons earning capacity.
At para. 19, the court wrote:
… The measure may vary where the circumstances require;
evidence of the value of the loss many take many forms (see Rowe). As
was held in Rosvold v. Dunlop, 2001 BCCA 1 at para. 11, 84 B.C.L.R. (3d)
158, the overall fairness and reasonableness of the award must be considered
taking into account all the evidence. An award for loss of earning capacity
requires the assessment of damages, not calculation according to some
mathematical formula.
[155] In this
case, I am satisfied Mrs. McLeod would have earned income, but for the
accident. She had the capacity, the motivation and the need to do so. The
evidence establishes that throughout her work history, Mrs. McLeod worked
largely full-time, or near full-time hours, with some periods of reduced hours,
but she would also accept overtime opportunities. Her only period of
unemployment in 20 years was from 2004 to early 2007 for a family crisis that required
Mrs. McLeods full time attention. Her greatest annual earnings were in the
year following Mr. Hamptons death where she earned approximately $32,000.00.
[156] In
assessing the plaintiffs loss here, there are both negative and positive
contingencies to consider.
[157] On the
negative side, it is quite possible that Mrs. McLeod would not have worked
full-time on a consistent basis. As well, it is quite possible she may have had
periods of unemployment when she relocated to Vernon and then later Ontario.
[158] On the
positive side, Mrs. McLeod may have experienced an increase in her hourly rate
of pay beyond her initial starting salary of $18.00 per hour. She had no
retirement savings. She needed to work. She may have also secured overtime
hours. As well, in light of her reputation as a high quality, capable and
compassionate care aide, Mrs. McLeod may have also enjoyed an income in excess
of the statistical average relied upon by Mr. Carson.
[159] In my
view, the negative and positive contingencies roughly balance one another. I find
this because, on the one hand, Mrs. McLeod has historically demonstrated that
she puts her family first. Had her family demands, including her desire to
build a life with Mr. McLeod, required it, she may well have taken less than
full time hours or experienced short periods of unemployment as a result of
moves to Vernon and then Ontario. On the other hand, Mrs. McLeod was always a
hard worker and very good at her job. Increased pay and overtime hours are both
factors that may have played a role in increasing her capacity to earn income
above the statistical average.
[160] In the
end, I agree with the plaintiff that an award of $170,000.00 for loss of past
earning capacity is a fair and reasonable award in this case.
LOSS OF FUTURE EARNING CAPACITY
[161]
Mrs. McLeod seeks an award for future loss of earning capacity in the
range of $500,000.00 to $600,000.00. The defendants submit a more modest sum of
$100,000.00 is fair and reasonable.
[162]
In Reilly v. Lynn, 2003 BCCA 49, the Court of Appeal summarized
the principles that apply in assessing a loss of future earning capacity at
para. 101:
[101].
The standard of proof in relation to
future events is simple probability, not the balance of probabilities, and
hypothetical events are to be given weight according to their relative
likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27. A plaintiff is
entitled to compensation for real and substantial possibilities of loss, which
are to be quantified by estimating the chance of the loss occurring: Athey v.
Leonati, supra, at para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at
135 (C.A.). The valuation of the loss of earning capacity may involve a
comparison of what the plaintiff would probably have earned but for the
accident with what he will probably earn in his injured condition: Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the end
of the inquiry; the overall fairness and reasonableness of the award must be
considered: Rosvold v. Dunlop (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at
para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644 (C.A.) . Moreover, the task
of the Court is to assess the losses, not to calculate them mathematically:
Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248
(C.A.). Finally, since the course of future events is unknown, allowance must
be made for the contingency that the assumptions upon which the award is based
may prove to be wrong: Milina v. Bartsch, supra, at 79. In adjusting for
contingencies, the remarks of Dickson J. in Andrews v. Grand & Toy Alberta
Ltd., supra, at 253, are a useful guide:
First, in many respects, these
contingencies implicitly are already contained in an assessment of the
projected average level of earnings of the injured person, for one must assume
that this figure is a projection with respect to the real world of work,
vicissitudes and all. Second, not all contingencies are adverse … Finally, in
modern society there are many public and private schemes which cushion the
individual against adverse contingencies. Clearly, the percentage deduction
which is proper will depend on the facts of the individual case, particularly
the nature of the plaintiff’s occupation, but generally it will be small
…
[Emphasis |
[163] More
recently, in Perren v. Lalari, 2010 BCCA 140, the Court of Appeal
provided guidance on which approach is appropriate in a particular case. Once a
plaintiff proves there is a real and substantial possibility of a future event
leading to an income loss, then, depending on the facts of the case, she may
prove the quantification of that loss of earning capacity either on the
earnings approach or capital asset approach. An earnings approach will be more
useful when the loss is more easily measurable.
[164] In this
case, the defendants concede the plaintiff has proven a real and substantial
possibility of a future event leading to a loss. I concur.
[165] The
medical and vocational evidence overwhelmingly establishes that Mrs. McLeod is
totally and permanently unemployable in her chosen field or any other field.
Her former general practitioner opined that while under her care, Mrs. McLeod
was totally disabled from employment. Her current general practitioner opined
that Mrs. McLeod would be disabled for the long term and unable to return to
the workforce in the future. Similarly, Dr. Billing is of the view that Mrs.
McLeod is totally disabled and incapable of obtaining or keeping employment.
Her condition will continue to worsen over time.
[166] Dr.
Laidlow was unable to make a long-term prognosis for Mrs. McLeod, but did say
that when he examined her in 2013 she was not capable of working as a nurses
aide.
[167] Alison
McLean conducted a physical capacity evaluation of Mrs. McLeod on May 28, 2013.
Ms. McLeans unchallenged opinion is that Mrs. McLeod does not meet even the
most basic requirements to be considered employable.
[168] Derek
Nordin conducted a vocational assessment of Mrs. McLeod on May 29, 2013. As
with the other experts, Mr. Nordins unchallenged opinion is that Mrs. McLeod
can be expected to be unable to participate in the workplace, any workplace,
over the long-term.
[169] Where the
parties differ is with respect to quantification of this loss.
[170] The
plaintiff submits that the best evidence available to quantify her loss of
future earning capacity allows the court to base it upon what she could have
earned working full-time as a care aide. The defendants submit a capital asset
evaluation is the best approach because, for a variety of reasons, her loss is
not easily measurable.
[171] I am
satisfied that Mrs. McLeod would have started her job with Golden Care Services
in August 2008 had she not been injured in the accident. Mrs. McLeod had a
significant prior work history in her chosen field. She loved her work and was
very good at it. She chose to reduce her work hours in 2002 and 2003 to
accommodate her husbands needs. She chose to leave the workforce temporarily
from 2004 until early 2007 in order to assist her son through a significant
life crisis. Prior to this reduction in hours and then absence from the
workforce, Mrs. McLeod worked consistently since 1988. Mrs. McLeods dedication
to her career is evident by her return to work following her sons crisis. Mrs.
McLeod testified that she found her work to be meaningful and intended to
pursue it until she was no longer able to do so. I accept her evidence.
[172] With these
findings, I am satisfied the correct basis upon which to assess her loss should
be based upon the earnings approach. It is easily measurable.
[173] Mr.
Nordin, Mr. Carson and Ms. Holomay all provided evidence with respect to
approximate annual full-time earnings for care aides. Ms. Holomay, a person who
works in the field, testified that at Overlander a care aide earns
approximately $40,000.00 per year. This is consistent with Mr. Nordins
evidence that in 2013 a care aide in British Columbia, working full-time,
earned an average annual wage of $42,771.00. Mr. Carsons evidence is also consistent.
He found that in 2013, a full-time care aide in Ontario earned an average wage
of $39,600.00. A public sector care aide in British Columbia earned an average
wage of $41,000.00.
[174] Taking the
average of these figures, an annual full-time salary of $41,000.00 is a reasonable
amount to assume Mrs. McLeod would have been capable of earning.
[175] Mr. Carson
provided multipliers to assist the court with assessing the present value of
loss of future earnings to various ages. If Mrs. McLeod worked to age 60, he
quantified her loss at $375,000.00. Working until age 65 would result in a loss
of $515,000.00 and working to age 67 would result in a loss of $578,000.00.
[176] In my
view, the evidence establishes there was a real and substantial likelihood that
Mrs. McLeod would have continued working as a care aide well into her 60s. She testified
she planned to work until she was no longer able to do so. She not only loved
her work, but also financially needed to work. At the time of the accident, she
had used her retirement savings in order to support her and her family.
[177] Witnesses
experienced in this industry testified that care aides often work into their
60s. There is no mandatory retirement age and experienced care aides are often
in demand, particularly to assist with the more difficult patients such as
those suffering from dementia.
[178] Given Mrs.
McLeods very strong work ethic and the factors I have just outlined, it is
reasonable to conclude that Mrs. McLeod was likely to have worked until age 65.
Accepting Mr. Carsons calculations, the present value of Mrs. McLeods future
loss of income can be measured at $515,000.00.
[179] This is a
case where the projected future income loss may be adjusted to reflect the
degree of likelihood that these events would come to pass. Allowance must be
made for the contingency that the assumptions found in my analysis would prove
to be wrong: Reilly at para. 101.
[180] Mr.
Carsons projections stretch many years into the future. Many things can change
in a persons life over that timeframe. The strongest negative contingencies
relate to one of Mrs. McLeods admirable qualities – she puts her family above
all else. Mrs. McLeod worked less in 2002 and 2003 owing to family commitments.
She removed herself completely from the workforce for a period of approximately
three years again for family purposes. After working nearly full-time hours for
a year upon her return to the workforce, she again did not work full-time,
owing to the sale of her home. While her work is clearly important to her, she
has historically demonstrated that her family is her first priority. There is a
real possibility that, at one or more points over the next 16 years, Mrs.
McLeod may have reduced her work hours in order to assist or accommodate her
family.
[181] There are,
however, several positive contingencies. By the time of the accident, Mrs.
McLeods children were grown and largely independent. She finally had time to
devote herself to her career. Had she not been injured in the accident, her
very strong work ethic may have led her to work more than full-time hours. As
well, she may have returned to Overlander or a similar organization and gained
the benefit of a pension plan. In addition, she may have chosen to upgrade her
education to qualify as a licensed practical nurse, like Ms. Holomay. Licensed
practical nurses earn more income than care aides.
[182] In the
end, I find that the negative and positive contingencies in this case are
roughly balanced. Considering this is an assessment and not a calculation, I
find a fair and reasonable award for future loss of earning capacity to be $500,000.00.
COST OF FUTURE CARE
[183]
Mrs. McLeod seeks an award for future care costs in the range of
$350,000.00 to provide for expenses associated with a pain management program,
physical therapies and conditioning, psychological counselling, homemaking
services, gardening/yard services, equipment, medication and pain management
injections.
[184]
The defendants agree she is entitled to some of these costs, but submit
$50,000.00 is fair and reasonable. Costs in excess of this amount, they say,
are not proven to be medically necessary or are covered by other benefits
plans.
[185]
A plaintiff is entitled to compensation for the cost of future care
based upon what is reasonably necessary on the medical evidence to promote her
physical and mental health. The test to be applied when considering awarding
costs for future care was set out by McLachlin J., as she then was, in Milina
and Bartsch (1985), 49 B.C.L.R. (2d) 33 at paras. 198-201:
[198] If there was any doubt as to whether the award for
cost of future care must be justified on a medical basis, it was dispelled by
MacDonald v. Alderson, [1982] 3 W.W.R. 385, leave to appeal to the Supreme
Court of Canada refused. In that case it was suggested that the plaintiff, a
quadriplegic, should be awarded sufficient funds to purchase and maintain his
own house on the non-medical grounds that this would give him a greater sense
of " ‘autonomy, privacy, financial stability and pride of ownership . . .
and greater opportunities for gardening, owning a pet, and more space for
hobbies’ ". The Manitoba Court of Appeal rejected this evidence as
"subjective theorizing" and reduced the award made at trial. The test
for determining the appropriate award under the heading of cost of future care,
it may be inferred, is an objective one based on medical evidence.
[199] These authorities establish (1) that there must be a
medical justification for claims for cost of future care; and (2) that the
claims must be reasonable. On the latter point, Dickson J. stated in Andrews at
p. 586:
An award must be moderate, and fair
to both parties . . . But, in a case like the present, where both courts have
favoured a home environment, "reasonable" means reasonableness in what
is to be provided in that home environment.
[200] This then must be the basis upon which damages for
costs of future care are assessed.
[201] It follows that I must
reject the plaintiff’s submission that damages for cost of future care should
take into account the cost of amenities which serve the sole function of making
the plaintiff’s life more bearable or enjoyable. The award for cost of care
should reflect what the evidence establishes is reasonably necessary to
preserve the plaintiff’s health. At the same time, it must be recognized that
happiness and health are often intertwined.
[186] Mr. and
Mrs. McLeod plan to move back to British Columbia very soon. As I have made
clear, I accept their evidence entirely. Mrs. McLeod is currently only 49 years
of age. Since the accident, she has pursued all forms of treatment recommended
by the medical professionals, often at her own expense. She is motivated to
improve her condition and, despite her negative prognosis, has not given up.
1. Pain Management Program
[187] There is
no dispute that such a program is reasonably necessary to promote Mrs. McLeods
mental and physical health in the future. Given her chronic pain condition, the
medically demonstrated need for a comprehensive approach to her ongoing
treatment and the need for her education about chronic pain management, a five
or six-week program is medically justified. Premised on Mrs. McLeods evidence
that she will be returning to British Columbia in the very near future, the
cost associated with such a program is $19,000.00. This award is reasonable and
appropriate.
2. Physical Therapies
[188] Mrs.
McLeod seeks an award for cost of physiotherapy and massage therapy treatments.
[189] Since the
time of the accident, Mrs. McLeod has personally spent nearly $10,000.00 on various
physical therapy treatments. She currently attends physiotherapy and would like
to resume massage therapy. Given her chronic pain is permanent and progressive,
Dr. Billing recommended physiotherapy. He also recommended chiropractic care.
The medical evidence supports a finding that ongoing physiotherapy is
reasonably necessary to promote Mrs. McLeods health in the future. Although
physiotherapy will not resolve her condition, it is likely to assist with pain
management in the future. There is no medical opinion with respect to the
necessity for massage therapy.
[190] Ms. McLean
also recommended physiotherapy. She could not offer an opinion on duration,
indicating that much will depend on the results of the pain management program.
Each physiotherapy visit will cost $60.00. Conservatively estimating two
sessions per month, the annual cost would be $1,440.00. Using Mr. Carsons
multipliers, the present value of this low end cost is $29,000.00. Given that
Mrs. McLeods condition will worsen with time and more physiotherapy might be
required, I find a reasonable award for physiotherapy to be $35,000.00.
3. Physical Conditioning Program
[191] Dr. Fikry
and Dr. Billing both recommended a regular physical conditioning program in the
form of an annual gym membership. I find the medical evidence supports a
finding that her attendance at such a program would promote not only her
physical good health, but her mental health as well. It would afford her an
opportunity to leave her home and interact socially with others in an active
and healthy environment.
[192] Ms. McLean
also recommended an annual gym membership, with any physical conditioning
program to be monitored and updated every four months by either a
physiotherapist or a kinesiologist. I find, given the need for a comprehensive
approach to her ongoing care, this supervision is also medically justified.
[193] The cost
of an annual pass at one facility in Kamloops is $506.67 to the age of 59 and
$440.76 annually thereafter. The cost of meeting with a physiotherapist or
kinesiologist for eight sessions per year would range between $480.00 and
$800.00. Using Mr. Carsons figures, a present day value of these costs ranges
between $17,000.00 and $26,000.00. I find $20,000.00 is a reasonable award for
physical conditioning.
4. Psychological Counselling
[194] There is
ample medical justification for this claim. Mrs. McLeod suffers from chronic
pain. It will only get worse. Although she suffered from depression and anxiety
prior to the accident, those conditions were treated with medication. As a
direct result of the injuries she suffered in the accident and the chronic pain
she now endures, Mrs. McLeod does exhibit low mood and feelings of low
self-worth. This is understandable. She is in constant pain and can no longer
do any of the activities she used to enjoy. She is isolated.
[195] Mrs.
McLeod will receive some counselling through her attendance at the pain
management program. Ms. McLean recommended follow-up counselling to assist Mrs.
McLeod with applying the coping skills she will learn in that program. Ms.
McLean recommends a minimum of six to ten counselling sessions, to a maximum of
twenty. The cost of such services would range between $943.00 and $3,929.00.
The plaintiff seeks $1,600.00, less than the mid-point of this range. I find an
award of $1,600.00 for psychological counselling is reasonable.
5. Loss of Housekeeping Services
[196] The
plaintiff seeks $90,000.00 (inclusive of tax) for loss of future housecleaning
and homemaking services and a further $35,000.00 for loss of future gardening
and yard work services. She also seeks an award for past loss of housekeeping
and homemaking services in the amount of $25,000.00 (inclusive of tax).
[197] The
defendants submit that a lesser total award for these losses of approximately
$25,000.00 is reasonable. They say that such a modest award would reflect that
Mr. McLeod has, since the couple moved in together in March of 2009, assumed
the bulk of the household and homemaking chores. He will continue to do so in
the future. Since this has been the status quo from the beginning of their marital
relationship, minimal expenses have been or will continue to be incurred by
Mrs. McLeod.
[198] Prior to
the accident, Mrs. McLeod always performed the vast majority of housekeeping
and homemaking services around the house. As a result of injuries she suffered
in the accident, she is now significantly limited in her ability to perform
most of these activities. These limitations are expected to be permanent and
will gradually worsen over time.
[199] Mrs. McLeod
took pride in a tidy home, both inside and out. Mr. and Mrs. McLeod began
living together in March of 2009, approximately eight months after the
accident. At this point, Mrs. McLeod had already suffered her loss; that is,
her loss of housekeeping capacity. As a result, out of necessity, Mr. McLeod
took on a greater role in maintaining and keeping the house as Mrs. McLeod was
unable to physically perform the tasks. This is not a role he had historically
performed.
[200]
Loss of capacity to perform housekeeping tasks is long established to be
compensable as a pecuniary loss. As was explained in McTavish v.
MacGillivray, 2000 BCCA 164 at paras. 63-67:
[63] As we have seen, 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.
[64] This approach to valuation of the plaintiff’s loss
has the advantage of encouraging family benevolence, without providing a
windfall to the wrongdoer. It discourages the hiring of less satisfactory and
perhaps more expensive substitute services. It allows a court to determine what
services are reasonably necessary by reference to what services family members
were prepared to provide. Two Australian authorities not among those provided
by counsel contain an interesting discussion of those and other policy
considerations. Griffiths v. Kerkemeyer (1977-78), 139 C.L.R. 161 (Aust.H.C.)
and Hodges v. Frost (1984), 53 A.L.R. 373 (F.C.A.) both concern household services
gratuitously provided for a plaintiff in the pre-trial period.
[65] The appellants recognize that it would be somewhat
of a legal fiction to characterize pre-trial or past loss of housekeeping
capacity as intangible "pain and suffering," under the non-pecuniary
general head of damages, and then to place an economic market value on these
same household services when compensating a victim for future loss of
housekeeping services that might not be incurred. They would avoid that fiction
by ensuring a plaintiff is compensated by pecuniary damages only for money
spent or likely to be spent on replacement services. Otherwise, in their view,
a plaintiff will be overcompensated; that is, she will gain from the award.
Moreover, the principle of restraint will not have been respected. They would
compensate intangible losses consequent on a decision not to replace needed
services by a modest non-pecuniary conventional award determined globally by
comparison with like cases.
[66] In my view, this suggested approach is inconsistent
with the authorities. Moreover, as the Australian legal scholar, Regina
Graycar, suggests, reliance on this approach tends to equate
"hoovering" with a hobby as a loss of amenity.
[67] This characterization
undervalues or devalues housework, and comes into direct conflict with the
well-established recognition of the economic value of housework at common law.
Hoovering in Canada has never been seen as a hobby. It is work of economic
value, although the person who "hoovers" may not be remunerated
directly in money for what he or, more frequently she, does. It is well to keep
the distinction between unpaid work of economic value and hobby in mind. The
loss of a hobby requires compensation by an award for a functional replacement.
The loss of the ability to perform household tasks requires compensation by an
award measured by the value of replacement services where evidence of that
value is available.
[201] Further,
in Dykeman v. Porohowski, 2010 BCCA 36 at para. 28, Newbury J.A.
affirmed that damages for loss of housekeeping capacity may be awarded even
though a plaintiff has not incurred an expense because housekeeping duties were
gratuitously replaced by a family member.
[202]
As well, as expressed by Doherty J. in Midgely at para. 344:
Since such an award recognizes
the impairment of housekeeping capacity, whether a plaintiff is likely to hire
such assistance in the future does not inform the analysis. Recovery may be
allowed for both the future loss of the ability to perform household tasks as
well as for the loss of such abilities prior to trial. The amount of
compensation must be commensurate with the loss.
[203] I agree
with the plaintiffs position here. This is not a case where Mr. McLeods
assumption of the majority of the household chores was a relatively minor
adjustment of the duties within a family. In his previous marriage, Mr. McLeod was
not responsible for the household chores. Throughout her adult life, Mrs.
McLeod has been the primary homemaker. The medical evidence very clearly
establishes that as a result of her injuries, she is no longer able to perform
those duties. When he began to live with Mrs. McLeod, she was already injured.
Despite working outside of the home six days a week, Mr. McLeod is forced to do
nearly all of the housework due to Mrs. McLeods injuries. Had the accident not
occurred, I am satisfied that Mrs. McLeod would have continued in her
historical role as the primary housekeeper. She now will have to hire someone
to perform these tasks. This cost is amply medically justified.
[204] Ms. McLean
recommended three hours of homemaking per week, plus an additional 15 hours per
year for seasonal cleaning tasks. The annual cost for such services would range
between $4,400.00 and $6,400.00. Given the services performed by Mrs. McLeod in
the past that she is no longer able to do, these hours seem reasonable.
[205] Mrs.
McLeod likely would have required these services at a certain age in any event,
particularly services with respect to the heavier aspects of the household
chores. Given Mrs. McLeods strong work ethic in and outside of the home, age
75, to my mind, seems a reasonable cut off. Using Mr. Carsons multipliers, the
present value of this cost would range between $74,000.00 and $105,000.00. I
find an award of $85,000.00 is reasonable in these circumstances.
[206] As I have
indicated, Mrs. McLeod also seeks an additional award for loss of future
gardening and yard work services in the amount of $35,000.00.
[207] Prior to
the accident, Mrs. McLeod performed a significant portion of all the yard work
and handyman activities around the home. She performed some atypical tasks as
well such as drywall repairs, installing vinyl siding, and building stairs and
a deck. Mr. McLeod was involved in these activities as well.
[208] As with
her housekeeping tasks, Mrs. McLeods physical limitations resulting from her
injuries now prevent her from performing these tasks. Her claim for
compensation for this future loss is medically justifiable.
[209] Ms. McLean
estimated the cost to replace services for gardening, yard work and snow
removal between $1,500.00 and $3,000.00 per year. Assuming Mrs. McLeod would
have likely been unable to perform these tasks at perhaps age 65 to 70, using
Mr. Carsons calculations, the present value of the cost of these services
would range between $19,000.00 and $45,000.00. I find an award in the low range
is reasonable to reflect the fact that the tasks would have been roughly
equally shared by Mr. McLeod if his wife were uninjured. I find $20,000.00 is
fair and reasonable.
[210] With
respect to past loss of housekeeping services, Mrs. McLeod seeks an award of
$25,000.00.
[211] The law is
clear that recovery may be allowed for both future loss of housekeeping
capacity and the loss of such abilities from the time of the accident until the
time of trial.
[212] The evidence
in this case is uncontroverted that Mr. McLeod and Bradley were compelled to go
above and beyond their ordinary household tasks to compensate for Mrs. McLeods
loss of ability to provide those services from the time of the accident until
the present. At an average annual cost of $5,000.00, I assess an award for past
loss of housekeeping services at $25,000.00.
6. Equipment
[213] Mrs.
McLeod seeks a total of approximately $700.00 for a safety grab bar for the
bathtub/shower area of her home, a body pillow to assist with sleeping and a
portable, ergonomic back rest support. The medical evidence justifies these
costs and I award $700.00 for them.
7. Medications
[214] Mrs.
McLeod suffers from chronic pain syndrome which, by all accounts, will only
worsen with time. Her doctors have recommended over-the-counter pain
medications. She is currently prescribed Lyrica (for pain), Fentanyl patch (for
pain) and Baclufen (muscle relaxant).There is clear medical justification for a
reasonable allowance for pain medication.
[215] Mrs. McLeod
seeks an award of $5,000.00 for non-prescription medications and $67,000.00 or
more for prescription medications.
[216] As a
result of the injuries suffered in the accident, Mrs. McLeod has consistently
taken a variety of medication for pain and muscle relaxation. Her condition
will only worsen, increasing her need to reply upon medication.
[217] Based on
her medication use since the accident, the prognosis for her condition to
worsen, Ms. McLeans estimates and Mr. Carsons multipliers, a reasonable
amount to award for the future cost of all medications is as sought by the
plaintiff. I award $72,000.00.
8. Pain Injection Treatments
a) Botox Injections
[218] The
plaintiff seeks $30,000.00 to $40,000.00 for this future cost. The defendants
submit the evidence falls short of proof this treatment is medically justified.
[219] Mrs.
McLeod receives some pain relief from this treatment, although not to the same
extent as she receives from the injections from Dr. Billing. She intends to
continue the treatment for as long as she derives a benefit. Dr. Fikry opined
that Mrs. McLeod will require this form of pain relief treatment on an ongoing
basis. Although I find that this treatment is medically justified on the
evidence, an assessment of a reasonable amount for this cost is somewhat challenging.
[220] While
living in Ontario, Dr. Stewart has provided this treatment every three months.
The cost is fully covered by Mr. McLeods extended healthcare plan and an
Ontario government program.
[221] Mr. and
Mrs. McLeod intend to move back to British Columbia shortly. If she received
injections here every three months, the cost would range from approximately
$3,000.00 to $4,400.00 annually, depending on the dose she receives. Using Mr.
Carsons multipliers, a lifetime cost of this treatment would range between
$59,000.00 to $80,000.00.
[222] The
frequency and duration of this treatment is difficult to predict. On the one
hand, Mrs. McLeod may become more reliant on this treatment for longer because
nerve block treatments are less available in British Columbia and her pain is
expected to worsen over time. On the other hand, Mrs. McLeod may decide the
benefit she receives becomes so small that she will no longer attend for
treatment at some point.
[223] In light
of these contingencies, I find a reasonable award for this future cost is $30,000.00.
b) Nerve Block Injections
[224] Again, all
of the medical evidence provides medical justification for this ongoing
treatment. Mrs. McLeod derives the greatest pain relief, albeit temporary, from
it. Assessment of this future cost is the challenge.
[225] Dr.
Billing injects Mrs. McLeod every three to four weeks. She pays $40.00 per
treatment or roughly $1,000.00 per year.
[226] Ms. McLean
notes that the Medical Services Plan of British Columbia pays for the cost of
this treatment in British Columbia. When Mrs. McLeod moves back to Kamloops,
she will have to attend for these treatments in either Kelowna or Salmon Arm.
These treatments are in such high demand that Mrs. McLeod would be unable to
attend with the same frequency as she currently does. Treatment every three
months will be available, as opposed to every three or four weeks.
[227] Mrs.
McLeod is entitled to be compensated for reasonable travel costs to access this
medically justified pain management treatment. Using Ms. McLeans costing and
Mr. Carsons multipliers, a lifetime cost for this travel would be between
$4,600.00 and $20,000.00. I find $10,000.00 is a fair and reasonable award for
this future cost.
COLLATERAL BENEFITS
[228] Mrs.
McLeod currently has access to two extended healthcare benefits plans – one
through CNR as a result of her former husbands employment and the other
through Kurts Trucking, her current husbands employer.
[229] The
defendants submit that certain future care costs (or percentages thereof) will
be paid through these benefits plans and/or Pharmacare and, therefore, ought to
be deducted from any award. I do not agree.
Kurts Trucking Benefits
[230] Given that
I have accepted the evidence of Mr. and Mrs. McLeod that they intend to move
back to British Columbia as soon as the awards from this judgment are paid, Mr.
McLeod will be leaving Kurts Trucking. The benefits available through that
plan will no longer be available. Even if determined to be an appropriate
deduction, there are no benefits to deduct.
CNR Benefits
[231] Mrs. McLeod
pays a monthly premium of $173.00 for the benefits available from this plan.
She has paid a monthly amount to this plan since Mr. Hamptons death in 1999.
There is no evidence before the court regarding the coverage available through
this plan.
[232] Payments
for lost wages or extended medical coverage pursuant to a private insurance
policy should not be deducted from the damages claim of a plaintiff: Bradburn
v. Great Western Railway Co. (1874), [1874 – 80] All E.R. Rep. 195 (Ex.
Div.); Cunningham v. Wheeler, [1994] 1 S.C.R. 359; and Brennan v.
Singh, [1999] B.C.J. No. 520 (BCSC).
[233] Mrs.
McLeods continuing payments constitute consideration for any benefits she may
receive from this plan. As a result, those benefits are the result of a private
insurance policy. They fall squarely within the insurance exemption and are not
deductible from any damage award.
Pharmacare Benefits
[234] The
defendants say that upon Mrs. McLeods return to British Columbia, she should
not recover the cost of medication she requires, as she will likely be eligible
to receive Pharmacare benefits, a government funded benefits program. No
evidence was tendered by the defendants in this regard.
[235] In MacEachern
(Committee of) v. Rennie, 2010 BCSC 625, the court had the benefit of
evidence from the director of the government division that oversees the
Pharmacare program. This program provides access to B.C. residents to drugs and
medical supplies. It is a program for which all B.C. residents enrolled in the
Medical Services Plan (who have filed taxes) may enroll. The program pays the
recipient a portion of drug expenses, depending on his or her net family
income.
[236] In MacEachern
(Committee of), at para. 422, the court made it clear that medication costs
required as a result of injuries suffered in a motor vehicle accident must be
paid for by a motor vehicle insurer. In such a case, Pharmacare is the insurer
of last resort: See also Harrington v. Sangha, 2011 BCSC 1035.
[237] As held by
Willcock J. in Harrington, there is no real risk of double recovery in
this case because Mrs. McLeod will have her future prescription costs paid for
by the defendants insurer. She will not be eligible to submit those costs to
Pharmacare.
SPECIAL DAMAGES
[238] The
plaintiff seeks an award in the amount of $14,052.73. The defendants agree to
the amount of this claim such that the plaintiff is not required to prove each
individual expense.
[239] I am
satisfied the evidence establishes the plaintiff did pay the various expenses
claimed and that all expenses were medically necessary and reasonable. I award
the plaintiff $14,052.73 in special damages.
SUMMARY
[240] Based on
these reasons, I find the plaintiff is entitled to the following awards:
Non-pecuniary damages: | $130,000.00 |
Past income loss: | $170,000.00 |
Future loss of earning | $500,000.00 |
Cost of future care: | $318,300.00 |
Special damages: | $14,052.73 |
TOTAL: | $1,132,352.73 |
[241] The
plaintiff is entitled to her costs assessed at Scale B and pre-judgment
interest at the prevailing rate.
[242] The
parties have agreed, if necessary, to address the court regarding assessment of
tax gross up. Arrangements can be made through Supreme Court Scheduling.
S.A. Donegan J.
DONEGAN
J.