IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140716

Docket: M095135

Registry:
Vancouver

Between:

Georgia Anne
Abbott

Plaintiff

And

Mary
Gerges, Anthony Habib and
GMAC Leaseco Corporation/La Compagnie GMAC Location

Defendants

Before:
The Honourable Madam Justice Warren

Reasons for Judgment

Overview

[1]            
Georgia Anne Abbott claims damages for personal injuries she suffered in
a car accident on January 3, 2008. Ms. Abbott’s car was rear-ended by a
car driven by the defendant, Mary Gerges. Liability has been admitted.

[2]            
Ms. Abbott lives with her husband, Wayne Abbott, in New
Westminster. They married in 1986 and have a daughter, Erica Abbott, who was 25
years old at the time of trial.

[3]            
At the time of the car accident, Ms. Abbott was a 52-year-old licensed
practical nurse working full time at a long-term care facility operated by the
New Vista Care Society. She started working at New Vista as a licenced
practical nurse in 1975, and at the time of the 2008 accident she had been
working there for 32 years.

[4]            
Ms. Abbott claims that she injured her neck, upper back, lower
back, right arm and hand, and right shoulder in the accident. She says that as
a result she has suffered significant pain in the injured areas, headaches, and
also numbness and tingling in her right arm from her neck to her fingers. She
says that her right arm symptoms largely resolved after she had carpal tunnel
surgery in March 2010, but the pain in her neck, upper back, right shoulder,
and lower back, and the numbness and tingling in her right hand have remained
constant or worsened. She says she continues to suffer from constant pain and
operates at a significantly diminished functional level. She says she has been
unable to work since the accident, is permanently disabled from working in the
future, is partially disabled from the activities of daily living, and requires
ongoing treatment and medication. She seeks compensation for her personal
injuries, loss of past and future earning capacity, cost of future care, loss
of homemaking capacity, loss of benefits, special damages, and costs.

[5]            
On November 18, 2008, approximately ten months after the car accident, Ms. Abbott
fell while shopping at Safeway. She says she aggravated some of the injuries
she suffered in the car accident and sustained new injuries to her knees in the
fall. She sued Safeway but that matter was settled in September 2013.

[6]            
As a term of the Safeway settlement, Ms. Abbott waived any right to
recover in this action any portion of her loss “attributable to the fault of
[Safeway]” and agreed to advise the court in this action that she had done so.
In this action, Ms. Abbott and the defendants asked that liability for Ms. Abbott’s
damages be apportioned severally, as between the car accident and the Safeway
fall. Of course, the defendants are not liable in any event for divisible
injuries suffered by Ms. Abbott in the fall, but the parties agreed that
because of the terms of the Safeway settlement, the defendants’ liability for
any indivisible injuries caused by both the car accident and the fall must be
apportioned on a several basis in accordance with s. 4(1) of the Negligence
Act, R.S.B.C. 1996, c. 333. This would limit the defendants’
liability to the damages for any divisible injuries caused by the car accident,
plus the portion of the damages for any indivisible injuries that corresponds
to the degree of fault of the defendants.

[7]            
I have some reservations about this approach. Safeway did not
participate in the trial. Yet the approach urged by the parties requires the court
to assume that Safeway’s conduct was a cause, in a legal sense, of the injuries
sustained by Ms. Abbott in the fall. It also requires the court to assess
the respective degrees of fault of the defendants and Safeway on an evidentiary
record that is thin with respect to the circumstances of the accident and the
fall. However, as both the plaintiff and the defendants urged the court to
proceed in this fashion, and in the interest of encouraging the settlement of
multi-party disputes, I have decided to proceed as requested by the parties. I
do so on the basis that the parties to this matter have agreed that for the
purposes of determining the defendants’ liability, and for no other purpose,
Safeway’s liability for the fall is assumed. I will first assess Ms. Abbott’s
damages as if the Safeway release did not exist. I will then apportion to the
defendants liability for any divisible injuries caused by the car accident and
any indivisible injuries caused by both the car accident and the Safeway fall
in proportion to the defendants’ degree of fault.

[8]            
The difficult process of determining the nature and extent of the losses
caused by the car accident and apportioning those losses to the defendants in a
manner consistent with the Safeway release is further complicated by Ms. Abbott’s
medical history. She suffered multiple injuries in car and work-related
accidents before the accident that is the subject of this action. In addition, Ms. Abbott
suffered from very significant pre-existing degenerative disorders, including
conditions affecting the cervical, thoracic and lumbar spine, shoulder joints
and hands, and the knees, as well as long-standing obesity and general
deconditioning. Ms. Abbott maintains these conditions were not
functionally disabling prior to the 2008 car accident; however, she
acknowledges that she was suffering from some neck soreness, shoulder pain, and
right arm numbness and tingling prior to the car accident. She denies any knee
pain prior to the Safeway fall.

[9]            
The defendants admit the car accident caused injuries to Ms. Abbott’s
neck and upper back, aggravated her pre-existing neck pain and aggravated her
pre-existing right arm condition, but take the position that her shoulder and
lower back injuries were suffered in the Safeway fall rather than the car
accident. Their position is that Ms. Abbott suffered indivisible injuries
to her neck and upper back in the car accident and the fall, and that she
suffered divisible injuries to her lower back, shoulder, and knees in the fall.
Ms. Abbott characterizes all the neck and back injuries as indivisible,
the right arm pain and shoulder joint injury as divisible and caused by the car
accident, and the knee injury as divisible and caused by the fall.

[10]        
The defendants contend that Ms. Abbott has significantly understated
her pre-existing health problems and overstated the symptoms from the injuries
suffered in the car accident. They say that the injuries she suffered in the
car accident were largely resolved by the time of the Safeway fall and that any
ongoing symptoms and disability are attributable to her pre-existing health and
the injuries suffered in the Safeway fall. In particular, the defendants submit
that the knee injury suffered in the fall was, on its own, completely
disabling, and that this intervening injury must be taken into account in
assessing Ms. Abbott’s damages for loss of income earning capacity so as
to limit those damages to the time period between the car accident and the
fall.

[11]        
Finally, the defendants submit that Ms. Abbott has failed to mitigate
by failing to lose weight and improve her fitness level.

[12]        
Ms. Abbott testified and led evidence from her father-in-law, her
husband, her daughter, three former co-workers (Richilda Yongque, Lorna Tenta,
and Shirley Rogers), and her long-time family physician, Dr. Ronald
DeMarchi. She also relied on expert opinion evidence from Dr. DeMarchi, Dr. G.M.
McKenzie, and Dr. Barry Vaisler.

[13]        
The defendants led evidence from the defendant, Ms. Gerges, and
also relied on expert opinion evidence from Dr. O.M. Sovio and Dr. Vance
Makin.

Issues

[14]        
The principal issues for determination are:

(a)   What was Ms. Abbott’s
condition prior to the 2008 car accident?

(b)   What
injuries did Ms. Abbott suffer in the 2008 car accident and, in
particular, did she injure her shoulder and lower back in that accident?

(c)    What
was Ms. Abbott’s condition between the 2008 car accident and the Safeway
fall, and why?

(d)   What injuries did Ms. Abbott
suffer in the Safeway fall?

(e)   What has Ms. Abbott’s
condition been since the Safeway fall, and why?

(f)    Is Ms. Abbott disabled,
and, if so, to what extent and why?

(g)   What is Ms. Abbott’s
prognosis?

(h)   What damages should Ms. Abbott
be awarded? In particular:

(i)   has Ms. Abbott failed
to mitigate;

(ii)   what
impact do Ms. Abbott’s pre-existing conditions have on the assessment of
her damages;

(iii)  what
is the significance of the Safeway fall, as an unrelated and tortious
intervening event, in the assessment of Ms. Abbott’s damages; and,

(iv)  how are
Ms. Abbott’s damages to be apportioned to the defendants given the Safeway
release?

The Accident

[15]        
There is no material dispute between the parties as to how the accident
occurred or its severity. On January 3, 2008, in the late afternoon, Ms. Abbott
was driving northbound, in the left lane, on North Road in Burnaby. Her
husband, Wayne Abbott, was in the passenger seat. They had crossed through the
intersection at Lougheed Highway and were in heavy “stop and go” traffic when
they were hit from behind by the car driven by Ms. Gerges. The impact
pushed the Abbotts’ car up onto a meridian and then into the car in front of
them. The airbags in Ms. Abbott’s car did not deploy but both Ms. Abbott
and Mr. Abbott testified the impact was hard. Ms. Gerges testified
that she was traveling the speed limit just prior to the accident and did not
brake before impact.

[16]        
Ms. Abbott’s car sustained damage to both the front and back, but
she was able to drive it home. The cost of repairing the body was approximately
$5,500. It cost an additional $2,000 to repair a grinding noise that
subsequently developed.

Medical Evidence

Dr. Ronald DeMarchi

[17]        
Dr. DeMarchi has been Ms. Abbott’s family physician since
1984. He wrote three medical reports (one dated November 9, 2011, and two
follow-up reports dated October 22, 2013) and he testified at trial. One
follow-up report related specifically to the injuries Ms. Abbott sustained
in the car accident and the other to injuries sustained in the fall.

[18]        
Dr. DeMarchi’s diagnosis in his November 9, 2011 report reflects
the complexity associated with apportioning Ms. Abbott’s symptoms between
the 2008 car accident, the Safeway fall, and her pre-existing conditions:

My final diagnosis is that Georgia sustained a
whiplash-associated disorder to the neck and upper back in conjunction with
pre-existing degenerative disc disease as a result of the MVA. With respect to
the trip and fall accident, the diagnosis is that of a mechanical lower back
injury, a severe contusion to the right shoulder, and a severe contusion to the
right knee. This in turn is associated with pre-existing degenerative changes
to the lower back and osteoarthritis of the knee.

Georgia has been disabled from work and significantly
disabled from her activities of daily living and domestic duties since the time
of the above 2 noted accidents. However, she had pre-existing medical problems
that also contributed to the degree of her disability. She had been involved in
numerous previous motor vehicle accidents with resulting neck and back
injuries. Although the pre-existing neck and back symptoms were not disabling
her from work, she still did have neck, upper back, and radicular symptoms on
account of pre-existing severe disc disease and spondylosis of the spine.
Additionally, she had pre-existing advanced generalized lumbar degenerative disc
disease, spinal stenosis, lower lumbar facet arthrosis, and associated
scoliosis to the lower back. Similarly, she had pre-existing degenerative
disease to the thoracic spine and very severe preexistent osteoarthritis and
findings of meniscal degeneration to the right knee. In addition, Georgia’s
pre-existing obesity (weighing 243 pounds and measuring 5 foot 1-1/4 inches
resulting in a body mass index of 45.1) and her lack of regular exercise prior
to the accident were also contributing factors. If it were not for her
pre-existing contributing problems, the 2 accidents would have been considered
less disabling with recovery likely seen within a two to three year period. In
my opinion, the pre-existence of the multiple problems resulted in prolongation
and permanence of her symptoms and disability. I believe that Georgia has been
permanently disabled from employment and has been rendered partially disabled
from activities of daily living with associated chronic pain as a result of the
2 accidents in conjunction with the pre-existing conditions.

Although it is difficult to put an exact measure on the
degree of contribution of each factor including the 2 accidents and the
pre-existing problems, it is possible to predict, through experience treating
patients having similar degenerative disease, when the pre-existing problems
would have likely caused significant disability without the accelerating
influence of the accidents. It is of my opinion that the pre-existing neck,
lower back, and right knee degenerative changes would have caused Georgia to
have become disabled from her work and from activities of daily living by the
time she reached 60 years of age without the influence of the 2 accidents. In
my opinion, therefore, the 2 accidents shortened Georgia’s productivity in the
work force and ease of performing activities of daily living by approximately 7
years.

With respect to the contributing percentages between the
motor vehicle accidents and the slip and fall injury, it should be noted that
each accident disabled Georgia in different ways. The motor vehicle accident
resulted in pain and disability affecting the neck, upper back, and right arm.
The slip and fall accident resulted in further pain and disability affecting
the right knee and the lower back. Each of these areas of disability affect her
employability and her activities of daily living in different ways and it is
the combination of all of these areas being affected that has resulted in her
inability to return to the work force or perform activities of daily living. I
would therefore conclude that each area of disability is contributing to the
overall disability in an equal fashion. This would render 50% responsibility to
the motor vehicle accident and 50% responsibility to the trip and fall injury
in accelerating her overall disability by 7 years.

In summary, Georgia had a number
of pre-existing medical problems which in my opinion would have disabled her
from the work force and caused a partial disabling effect on her activities of
daily living by the age of 60, prior to the 2 accidents in question. As a
result of these accidents she was rendered permanently disabled from employment
and partially disabled from her activities of daily living approximately 7
years early. The percentage contribution of each accident is in my opinion
equal. Multiple treatment options have been trialed without success and Georgia
is likely facing surgery to the cervical spine and to the right knee sometime
in the future. She may also require surgical intervention to the lower back in
an effort to treat her symptoms. If she does proceed with these operations,
they will only be done with the purpose to improve her pain and ability to
function, and they will in no way allow her to return to full employment nor to
full functioning at home. Georgia therefore has a very very poor prognosis for
full recovery.

[19]        
In the follow-up report relating to the car accident, Dr. DeMarchi
concluded that there had been no significant change to the status of the
injuries Ms. Abbott sustained in the accident. He reported having seen Ms. Abbott
on 11 occasions between late 2011 and late 2013. He said that up to late 2013,
she continued to complain of continuous neck pain, frequent headaches, pain in
the right trapezius muscle, pain in the lower thoracic and upper lumbar
muscles, and pain in the right shoulder with associated neurological symptoms
affecting her right hand as a result of the car accident. Regarding the extent
of her disability from these injuries, he stated:

As noted earlier, she is
considered permanently disabled from all occupations and partially disabled
from her activities of daily living as a result of these injuries, although her
pre-existing osteoarthritis and degenerative disc disease would likely have
resulted in this outcome by the age of 60. The motor vehicle accident
accelerated her disability by an estimated 7 years and is felt to be 50%
responsible for her disabilities along with her other accident sustained
November 18, 2008 which has equally contributed another 50%.

[20]        
In the report relating to the Safeway fall, Dr. DeMarchi reported
having seen Ms. Abbott 13 times between late 2011 and late 2013 to follow
up on the injuries sustained in the fall. He noted that each time, she
continued to complain of right lower back pain, severe pain coming from the
right shoulder, and severe pain in both knees (worse on the right side).
Regarding the extent of her disability from these injuries, he stated:

She is considered permanently
disabled from all occupations and partially disabled from her activities of
daily living as a result of these injuries, although her pre-existing
osteoarthritis and multilevel lumbar degenerative disc disease would likely
have resulted in this outcome by the age of 60. The fall of Nov 18/08 accelerated
her disability by an estimated 7 years and is felt to be 50% responsible for
her disabilities along with her motor vehicle accident dated January 3, 2008,
which has equally contributed another 50%.

Dr. G.M. McKenzie

[21]        
Dr. McKenzie, an orthopedic surgeon, saw Ms. Abbott on August
30, 2011, and October 13, 2011, at the request of her counsel. The results of
his examination are set out in a report prepared partly on August 31, 2011, and
completed on October 16, 2011.

[22]        
Dr. McKenzie conducted a comprehensive review of Ms. Abbott’s
medical history and current symptoms based on his own interview and physical
examination of her, the clinical records of Dr. DeMarchi, Dr. Barry
Sauser (Ms. Abbott’s chiropractor), and several other practitioners, and
diagnostic reports including x-ray, CT, MRI, and others.

[23]        
Dr. McKenzie’s opinions included the following:

·      
Prior to the 2008 car accident, Ms. Abbott had essentially
constant pain in her neck and upper back area, likely due to cervical
spondylosis.

·      
The 2008 car accident aggravated the degenerative changes in her
neck and caused them to be more symptomatic. The intensity of the pre-existing
constant neck pain increased significantly following the car accident and is
ongoing. The prognosis for the neck to return to its less painful status is
guarded.

·      
The neurological symptoms in her right arm were more likely based
on carpal tunnel problems rather than nerve root problems from the neck.
Although he would defer to a neurologist on the question of the causation of
her carpal tunnel problems, in Dr. McKenzie’s view, the carpal tunnel
symptoms were aggravated by the car accident. This opinion was stated to be
based on the fact that “it came on immediately following the motor vehicle
accident”. Earlier, he had noted she had two occasions of right hand pins and
needles in November and December 2007 but these were “very transient”.

·      
The causation of Ms. Abbott’s lower back pain is likely the
Safeway fall, based on the fact that she reported virtually no lower back pain
just prior to the fall.

·      
The fall also activated degenerative changes in her knee, causing
her to go from an asymptomatic state to a symptomatic state. In Dr. McKenzie’s
opinion, Ms. Abbott was at significant risk of developing serious knee
pain in the future because of her heavy weight and pre-existing degenerative
changes but he expressly declined to give a view as to when that might have
occurred.

·      
The disability Ms. Abbott complains of (that is, total
disability from work and partial disability from activities of daily living) is
consistent with his physical examination. Dr. McKenzie did not address the
question of the extent to which the injury suffered in the 2008 car accident
alone has caused or contributed to Ms. Abbott’s disability.

Dr. Barry Vaisler

[24]        
Dr. Vaisler, an orthopedic surgeon, examined Ms. Abbott on
October 17, 2013, at the request of her counsel, and set out the results in a
report dated November 6, 2013.

[25]        
In addition to physically examining Ms. Abbott, Dr. Vaisler
reviewed the clinical records of Dr. DeMarchi, Dr. Sauser, and
several other practitioners, diagnostic reports including x-ray, CT, MRI, and
others, and several of the medical reports prepared by other doctors for use in
this action.

[26]        
Dr. Vaisler expressed the following overarching opinions in his
report:

·      
Ms. Abbott “most probably sustained a soft tissue injury to
her neck and low back, subacromial impingement of her right shoulder and a
neurologic injury to her right hand as a result of the motor vehicle accident
of January 3, 2008”.

·      
The Safeway fall “most probably resulted in a contusion to her
head and exacerbation of the pain in her neck and low back and a contusion to
both knees”.

[27]        
Regarding Ms. Abbott’s neck, Dr. Vaisler expressed the
following views:

·      
Prior to the 2008 car accident, Ms. Abbott had “a long
standing history of intermittent neck pain” but her extensive degenerative disc
disease was only minimally symptomatic. Had the car accident not occurred, she
“most probably” would have continued, for the foreseeable future, to have
“intermittent annoying and occasionally disabling neck pain, especially with
repetitive heavy lifting and heavy labour”.

·      
The 2008 car accident “most probably resulted in a combined
hyperextension and right lateral flexion injury to her neck, followed by a
forward flexion injury” and, “more likely than not”, she “sustained a soft
tissue injury to one or more cervical facet joints”.

·      
It is more likely than not that the Safeway fall “resulted in a
temporary exacerbation of her neck pain”.

[28]        
Regarding Ms. Abbott’s lower back, Dr. Vaisler expressed the
following views:

·      
While Ms. Abbott had some history of lower back pain that
predated the 2008 car accident, the clinical records reviewed by Dr. Vaisler
were consistent with Ms. Abbott’s claim that her lower back was
asymptomatic just prior to that accident. On this basis, he concluded that had
the motor vehicle accident not occurred, “she most probably would have
continued to have remained asymptomatic with respect to her low back for the
foreseeable future”.

·      
Ms. Abbott most probably suffered a soft tissue injury to
her lower back as a result of the car accident, which gradually improved within
the first few weeks following the accident. On November 18, 2008, just prior to
the Safeway fall, Dr. DeMarchi noted she was continuing to experience some
lower back pain. It is “more likely than not that her low back pain would have
resolved with treatment and time over the following nine to 12 months” had the
Safeway fall not occurred.

·      
Ms. Abbott reinjured her lower back in the Safeway fall.

[29]        
Regarding Ms. Abbott’s shoulder, Dr. Vaisler observed that the
first specific mention of shoulder symptoms in the clinical records was Dr. DeMarchi’s
note on December 27, 2007, that Ms. Abbott complained of increasing numbness
in her right upper limb and that, on examination, she had a significant degree
of impingement involving her right shoulder. Dr. Vaisler said that although
Ms. Abbott most probably sustained subacromial impingement of her right
shoulder in the car accident, he was “unable to confirm any evidence of an
injury to her right shoulder as a result of the motor vehicle accident of
January 3, 2008” based on the clinical records provided to him. He noted she
had symptoms consistent with subacromial impingement just prior to the car
accident and no further mention of shoulder symptoms for six months following.
He said it is “possible” that the pain she was experiencing in her right
shoulder just prior to the car accident resolved spontaneously only to recur in
association with the soft tissue injury to her neck as a result of the 2008
accident. This conclusion appears to be based on his opinion that shoulder
impingement can be aggravated following a soft tissue injury to the neck, which
is commonly associated with trapezius and upper back muscle spasm. He also
noted that Ms. Abbott had informed him she sustained a direct blow to her
right shoulder as a result of the Safeway fall, and yet he did not mention the
shoulder injury in his summary opinion about the injuries suffered in the
Safeway fall.

[30]        
Regarding the neurologic symptoms in Ms. Abbott’s right arm and
hand, Dr. Vaisler expressed the following views:

·      
He noted that Dr. DeMarchi’s clinical records recorded
tingling in Ms. Abbott’s hands as far back as 1994 and confirmed moderate
right and mild left carpal tunnel syndrome in 2000. He also noted that a WCB
report from 2004 recorded complaints of carpal tunnel syndrome. The next record
of neurologic symptoms in her upper limbs was a November 2, 2007 clinical
record of Dr. DeMarchi, where it was noted that she was experiencing
numbness on the right side of her face and right arm, and a December 27, 2007
clinical record which noted Ms. Abbott complaining of “continuous tingling
on the right side of her neck extending to the radial aspect of her right
hand”.

·      
Dr. Vaisler’s view is that the neurologic symptoms Ms. Abbott
experienced prior to the car accident were “unlikely” due to carpal tunnel
syndrome, as symptoms of that syndrome “are typically confined to the palmar
aspects of the thumb, index, middle, and radial half of the ring fingers”.
Further, her reported improvement in symptoms from the wrist to neck following
carpal tunnel surgery was “not consistent” with carpal tunnel syndrome. Her
neurologic symptoms, in his view, were “more consistent with a right C.6
cervical nerve root compression”.

·       Dr. Vaisler
was unable to arrive at a definite diagnosis for the neurologic symptoms in Ms. Abbott’s
right hand; however, with respect to the contribution of the car accident, he
stated:

…it is a little more likely than
not that the motor vehicle accident resulted in what is termed a “double crush
syndrome” with both compression of the right C.6 nerve root and compression of
the right median nerve at the carpal tunnel. Unfortunately I am unable to
comment further on her neurologic symptoms in the absence of a specific
diagnosis. At this stage, this is outside my area of expertise and as a result
I defer to the opinion of a neurologist or neurosurgeon.

[31]        
Dr. Vaisler’s prognosis was that with a regular program of
strengthening and postural exercises, a regular low impact fitness regime, and
use of a contoured back support, it is more likely than not that Ms. Abbott
is going to continue to experience neck pain for the foreseeable future, more
intense and more frequent than what she would have experienced had the car
accident not occurred. He also expressed the view that it is more likely than
not that the frequency and intensity of her low back symptoms will improve, but
that she will complain of low back pain for the foreseeable future as a result
of the car accident and the Safeway fall. Dr. Vaisler also expressed the
view that Ms. Abbott will most probably require shoulder surgery.

[32]        
Regarding the extent of Ms. Abbott’s disability, Dr. Vaisler’s
opinion is that she is:

most probably disabled for full
time work involving heavy lifting, heavy labour, or sustained or repetitive
bending on account of the soft tissue injuries to her neck and low back, resulting
from the motor vehicle accident of January 3, 2008. Although she will most
probably note improvement in her neck and back symptoms with the above noted
treatment recommendations, it is more likely than not that this disability will
be permanent.

[33]        
In cross-examination, he agreed that the disability associated with her
neck and lower back resulted from both the car accident and the Safeway fall.
He also agreed that her knee pain alone would have disabled her from the heavy
work she had been doing as a licensed practical nurse. He also said she was
“most probably capable of part time light duty work at waist level involving
alternating periods of sitting and standing”.

Dr. O.M. Sovio

[34]        
Dr. Sovio, an orthopedic surgeon, examined Ms. Abbott on
August 7, 2012, at the request of counsel for the defendants, and set out the
results in his report dated August 8, 2012.

[35]        
In addition to physically examining Ms. Abbott, Dr. Sovio
reviewed the clinical records of Dr. DeMarchi, Dr. Makin, Dr. Sauser,
and several other practitioners, and diagnostic reports including x-ray, CT,
MRI, and others.

[36]        
Dr. Sovio expressed the following views with respect to the
injuries that Ms. Abbott claims were caused by the car accident:

·      
Ms. Abbott’s neck complaints predated the car accident and,
although she claims they worsened following the accident, “it is difficult to
quantitate subjective symptoms under these circumstances”. Dr. Sovio
attributed Ms. Abbott’s neck pain to “degenerative cascade” which he
described as a progressive worsening of deterioration and said that her CT and
MRI reports do not suggest any injury-related changes to the spine.

·      
Ms. Abbott had carpal tunnel surgery on the right side. She
claimed that following this surgery she experienced significant improvement in
the numbness and tingling above the wrist, but had ongoing numbness in the
hand. Dr. Sovio expressed the view that this did not make “any anatomic
sense” because carpal tunnel surgery releases pressure on the nerve that gives
sensation to the thumb, index and middle finger and not the nerves associated
with sensation in the area above the wrist.

·      
Ms. Abbott’s shoulder complaints suggest a degree of
shoulder impingement but, in Dr. Sovio’s view, the shoulder impingement
was not caused by the car accident. This view was based on the fact that Ms. Abbott
had a pre-accident history of shoulder impingement and there was no evidence
that the shoulder was actually injured in the accident.

·      
Ms. Abbott’s lower back pain is a result of degenerative
spinal disease.

·      
Because of Ms. Abbott’s obesity and deconditioning, her
osteoarthritic changes, and multiple musculoskeletal complaints over 25 years,
“it would be unlikely that she would return to work in a licensed practical
nurse capacity which is a relatively labour intensive job”. In
cross-examination, Dr. Sovio said that in his view, given the progression
of Ms. Abbott’s very significant degenerative conditions over many years,
she would not have been working by the time of trial irrespective of the car
accident and the Safeway fall.

Dr. Vance Makin

[37]        
Dr. Makin, a neurologist, examined Ms. Abbott at the request
of counsel for the defendants. The results are set out in his report dated
February 2, 2012.

[38]        
In addition to physically examining Ms. Abbott, Dr. Makin
reviewed extensive records including the clinical records of Dr. DeMarchi
and several other practitioners, and diagnostic reports including x-ray, CT,
and MRI.

[39]        
The purpose of Dr. Makin’s report was to determine whether Ms. Abbott
suffers from any diseases of the nervous system and, if so, whether they were
caused or exacerbated by the car accident. In cross-examination, he
acknowledged that he was not commenting on whether there were musculoskeletal
causes for her symptoms.

[40]        
Dr. Makin expressed the following views with respect to the
injuries that Ms. Abbott claims were caused by the 2008 car accident:

·      
Given Ms. Abbott’s history of headaches, the headaches were
not caused by the car accident but, if her subjectively reported history is
accurate, there might have been an increase in frequency and duration of the
headaches after the accident. He is not aware of a biological reason to
attribute the reported change in Ms. Abbott’s headaches to the accident.

·      
There is no neurological basis for Ms. Abbott’s neck pain.
In cross-examination, he agreed that there may be a musculoskeletal cause.

·      
There is no neurological basis for Ms. Abbott’s back pain. Dr. Makin
did not have an opinion regarding the causation of it.

·      
The neurologic symptoms in Ms. Abbott’s right hand could be
due to a carpal tunnel issue or C6 cervical radiculopathy (nerve root injury).
In his view, C6 cervical radiculopathy is unlikely because there was no
objective evidence of that condition. He also said that the area above the
wrist is not typically affected by carpal tunnel surgery but sometimes carpal
tunnel patients do complain about symptoms above the wrist that are relieved
following carpal tunnel surgery.

Credibility and Reliability

[41]        
Counsel for the defendants submitted that Ms. Abbott was not a
reliable witness. It was not submitted that she attempted to deliberately
mislead the court. Rather, it was submitted that she was prone to exaggeration
and hyperbole and that she is a poor historian whose recollections are
unreliable.

[42]        
The factors to be considered when assessing credibility were summarized
in Bradshaw v. Stenner, 2010 BCSC 1398, at para. 186, aff’d 2012
BCCA 296. They include the firmness of the witness’s memory, the ability of the
witness to resist the influence of interest in modifying her recollection,
whether the witness’s evidence harmonizes with independent evidence that has
been accepted, whether the witness changes her evidence during direct
examination and cross-examination (or between examination for discovery and
trial) or is otherwise inconsistent in her recollections, whether the witness’s
evidence seems generally unreasonable, impossible, or unlikely, and the
witness’s demeanour. Fundamentally, the question is whether the witness’s
evidence is consistent with the probabilities affecting the case as a whole.

[43]        
As Ms. Abbott’s case involves subjective complaints of pain, it is
particularly important to exercise caution and examine her evidence carefully: Price
v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.). If her account is not
convincing, the hypothesis upon which her medical evidence rests will be
undermined: Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431, at paras. 15,
43-44.

[44]        
Counsel for the defendants questioned Ms. Abbott’s ability to
testify for several days without any indication of discomfort while she
repeatedly described her pain in dramatic fashion as “excruciating”, like “a
knife in the back”, and like “a knife in her shoulder”. Dr. Makin noted
that when he lightly pressed on the top of Ms. Abbott’s head during his
independent medical examination, she complained of significant pain. He
testified that given the physical structure of the spine there is no anatomical
explanation for this pain complaint. Counsel for the defendants submitted that
this is further evidence of Ms. Abbott’s propensity to dramatics.

[45]        
I did not find Ms. Abbott’s physical demeanour troubling. She did
not engage in grimacing, neck rubbing, or bodily contortions while testifying,
but had she done so I expect she would have been criticized for being overly
dramatic. She testified for several hours in total, but never for much more
than an hour without a break, which allowed her the opportunity to stand,
stretch, and move around. Having said that, I agree that Ms. Abbott did,
on occasion, engage in hyperbole and at times her evidence seemed unreasonable.
For example, she reluctantly acknowledged that her neck symptoms prior to the
car accident could be characterized as constant “soreness” but refused to
acknowledge pre-existing neck “pain”, insisting that soreness is materially
different from pain. She maintained that when Dr. DeMarchi noted, a couple
of weeks before the car accident, that “over the last few weeks she has had
continuous” tingling radiating down her right arm, his use of the word
“continuous” must have meant that the tingling happened more than once. She
acknowledged having been advised by a doctor in 1995 to lose weight and
exercise and that she did not subsequently do so, but she refused to
acknowledge that she did not follow the doctor’s advice. She claimed to
understand what a 0 to 10 pain scale meant, but occasionally graded her pain at
significantly higher than ten when asked to use that scale.

[46]        
Counsel for the defendants also submitted that Ms. Abbott had a
tendency to contradict anything she thought would undermine her claim and was
inconsistent in recalling her medical condition at various times. I agree that Ms. Abbott’s
evidence regarding her health at particular times was somewhat inconsistent. In
her direct evidence, she acknowledged but downplayed her pre-accident neck
symptoms. However, in relation to the period before the car accident, Dr. Makin
reported that she told him she had ongoing neck pain graded at 4 out of 10 and Dr. McKenzie
reported that she told him she had essentially constant neck pain graded at 2
to 3 out of 10. In direct examination, Ms. Abbott testified she had no
knee problems for years prior to the Safeway fall, but in cross-examination,
she acknowledged she attempted to reopen a prior WCB claim in 2005 because of
ongoing knee pain. Perhaps most strikingly was Ms. Abbott’s insistence
that she had lost weight through Weight Watchers at the end of 2006 but gained
it all back, plus more, after the car accident. She said the same to Dr. McKenzie
and Dr. Sovio. However, Dr. DeMarchi’s clinical records clearly
establish that the weight loss she achieved through Weight Watchers occurred
before May 2005 and was regained prior to the car accident. Even when
confronted with those records, Ms. Abbott was reluctant to admit that she
had been wrong about the timing of her weight loss and subsequent gain.

[47]        
For the reasons noted above, I find Ms. Abbott to be a witness
whose evidence I must approach with caution. I do not find that she
deliberately attempted to mislead the court. However, I find that she had a
tendency to exaggerate when testifying and to reconstruct history in a
favourable light. Having said that, she did acknowledge her pre-existing
conditions when relaying her history to the physicians who conducted
independent medical examinations and they all had access to Dr. DeMarchi’s
clinical records. While her descriptions to each physician were not identical,
it is not surprising that, over time, there would be some variation in the way
she described her symptoms, particularly when talking to a variety of
physicians who probably conducted their interviews and framed their questions
in somewhat different ways. What is most important, for present purposes, is
that all the medical opinions assumed significant pre-existing neck pain and
pre-existing right arm neurologic symptoms.

[48]        
Further, Ms. Abbott’s evidence to the effect that she was
functioning before the car accident, notwithstanding her symptoms, was
corroborated to some extent by her co-workers, Ms. Yongque and Ms. Tenta,
both of whom testified that Ms. Abbott was able to perform heavy duties at
work without apparent difficulty. As such, while I must treat Ms. Abbott’s
evidence with caution, I do not consider the basis upon which the medical
evidence rests to have been materially undermined. Where I find that Ms. Abbott’s
evidence should be discounted, I will address it in the course of my reasons.

[49]        
I also wish to address the reliability of the evidence of Ms. Abbott’s
father-in-law, Leo Surcon, husband, Wayne Abbott, and daughter, Erica Abbott.
These witnesses testified about Ms. Abbott’s health and lifestyle before
and after the car accident, but only in a very general way. I did not find
their evidence as a whole to be particularly helpful because it was often vague
and, in some respects, surprisingly uninformed. For example, Mr. Surcon
was unable to say anything specific about the change in Ms. Abbott’s
condition after the car accident. He had no knowledge of the two lengthy
periods when Ms. Abbott was off work as a result of WCB claims. Wayne
Abbott testified he did not know anything about the prescriptions Ms. Abbott
was taking. He said he did not recall that she had been diagnosed with carpal
tunnel syndrome but then acknowledged that she had surgery for that condition.
He initially testified quite definitively that Ms. Abbott gained
significant weight after the car accident but then said he thinks she put a few
pounds on and he is not a good judge of weight. He said the demands on him of
maintaining the house are continuous but could not even suggest a number when
asked to estimate how many hours per week he spends doing housework. Erica
Abbott’s evidence about the change in Ms. Abbott’s condition after the car
accident and after the fall was vague. She also testified she had no knowledge
of the two lengthy periods when Ms. Abbott was off work as a result of WCB
claims. These two periods were in 2003/2004 and 2005/2006, when Erica Abbott
would have been between the ages of approximately 14 and 17, and it is
surprising that she would have no memory of these times. For these reasons, I
place limited weight on the evidence of Mr. Surcon, Wayne Abbott, and
Erica Abbott.

Legal Principles

Causation

[50]        
Ms. Abbott must establish on a balance of probabilities that the
defendants’ negligence caused her injuries. The general test for causation,
established in Athey v. Leonati, [1996] 3 S.C.R. 458, at paras. 13-17,
is the “but for” test: “but for” the defendant’s negligence, would the
plaintiff’s injuries have occurred?

[51]        
Causation need not be determined by scientific precision and is best
answered with ordinary common sense: Athey, at para. 16. As
stated by Lord Reid in McGhee v. National Coal Board, [1973] 1 W.L.R. 1
(H.L.) at 5, “the legal concept of causation is not based on logic or
philosophy. It is based on the practical way in which the ordinary man’s mind
works in the everyday affairs of life”.

[52]        
The “but for” test does not require the plaintiff to establish that the
defendants’ negligence was the sole cause of the plaintiff’s injury. If there
are other potential causes, the plaintiff will establish causation if she can
prove a substantial connection between the injury and the defendants’ conduct,
beyond the de minimus range: Farrant v. Laktin, 2011 BCCA
336, at para. 11.

[53]        
Where there are potentially multiple causes of a plaintiff’s injuries,
it is necessary to determine whether the injuries are divisible or indivisible
in order to ensure that the defendants are not held liable for injuries not
caused by their negligence: Athey, at paras. 24-25. Indivisible
injuries are those that cannot be separated or have liability attributed to the
constituent causes whereas divisible injuries are those capable of being
separated out and having their damages assessed independently: Bradley v.
Groves, 2010 BCCA 361, at para. 20, leave to appeal ref’d [2010]
S.C.C.A. No. 337. Whether damage is divisible or indivisible is a question
of fact: B.P.B. v. M.M.B., 2009 BCCA 365, at para. 74, leave
to appeal ref’d [2010] S.C.C.A. No. 90.

[54]        
If an injury is indivisible, subject to contributory negligence, the
defendants are liable for all damages attributable to that injury regardless of
the contribution of other causes: Athey, at paras. 17-20,
25.

Assessment of damages

[55]        
The fundamental principle in assessing tort damages is that the quantum
should be that which is required to place the plaintiff in her original
position; that is, the position she would have been in absent the defendants’
negligence: Athey, at para. 32. This requires a determination
of the plaintiff’s position after the negligence and an assessment of what the
original position would have been. The difference between these positions
represents the quantum of the defendants’ liability: Athey, at para. 32.

[56]        
The defendants need not put the plaintiff in a position better than her
original one and should not compensate the plaintiff for any damages she would
have suffered anyway: Blackwater v. Plint, 2005 SCC 58, at para. 78.
In determining the plaintiff’s original position, it may be necessary to
reflect any debilitating effects of a pre-existing condition, or a measurable
risk that such a condition would have detrimentally affected the plaintiff in
the future regardless of the defendant’s negligence. This is the crumbling
skull rule and, where applicable, it results in the damages award being reduced
to reflect risks inherent in the plaintiff’s pre-accident condition: Athey,
at para. 35.

[57]        
As explained in T.W.N.A. v. Canada (Ministry of Indian Affairs),
2003 BCCA 670, at para. 48, a measurable risk need not be proved on a
balance of probabilities:

Whether manifest or not, a
weakness inherent in a plaintiff that might realistically cause or contribute
to the loss claimed regardless of the tort is relevant to the assessment of
damages. It is a contingency that should be accounted for in the award.
Moreover, such a contingency does not have to be proven to a certainty. Rather,
it should be given weight according to its relative likelihood.

Findings of Fact

What was Ms. Abbott’s condition prior to the 2008 car accident?

[58]        
Ms. Abbott was involved in seven car accidents prior to the one
that is the subject of this action. She had two accidents in 1978 and one in
each of 1979, 1982, 1984, 1994, and 2001. She injured her neck and upper back
in several of these accidents and was off work for significant periods of time
following four of them.

[59]        
In addition to the seven motor vehicle accidents, Ms. Abbott
suffered several work-related injuries in the years prior to the 2008 motor
vehicle accident. The most significant work-related injuries were a 2003 injury
to her right rib area, right lower back, and buttock that she suffered while
lifting a mattress to make a bed, and a 2005 injury to her hamstring and the
sciatic nerve in her left leg that she suffered when she slipped on a wet
floor. Ms. Abbott missed approximately two months of work following the
2003 work injury and approximately four to five months of work following the
2005 work injury.

[60]        
Dr. DeMarchi’s evidence clearly establishes that, before the 2008
car accident, Ms. Abbott suffered from severe degenerative disc disease to
the spine, spondylosis, spinal stenosis, severe osteoarthritis, and meniscal
degeneration to the right knee, arthritis of the shoulder joint, and
long-standing obesity and deconditioning.

[61]        
Ms. Abbott testified that, prior to the car accident, she suffered
from occasional headaches, neck soreness, back pain, and a sore hamstring, but
said these problems were well managed, with no problems walking, and no
difficulty performing at work.

[62]        
With respect to the pre-existing neck pain, Ms. Abbott testified
that in the years prior to the car accident, she had particular problems with
the left side of her neck occasionally locking up and causing severe pain. This
happened at least twice in the year or so prior to the accident. She had many
chiropractic treatments with Dr. Sauser, which relieved the locking and
associated pain.

[63]        
Ms. Abbott testified she also had general neck soreness before the
2008 accident. Mr. Surcon testified that Ms. Abbott occasionally used
an ice pack on her neck before the accident and Erica Abbott testified her
mother used an ice pack once or twice per week. Ms. Yongque observed Ms. Abbott
using a heating pad on her breaks at work and Ms. Tenta observed her using
an ice pack.

[64]        
Dr. DeMarchi’s clinical records indicate that Ms. Abbott
complained of worsened neck pain following her March 2001 car accident, but
there was very little, if any, mention of neck pain in his records between 2005
and the 2008 car accident. In cross-examination, he confirmed that she did not
complain about significant neck pain in the four to five years prior to the
2008 car accident.

[65]        
Ms. Abbott relayed her history of neck pain to the various
physicians who testified. Dr. Makin reported Ms. Abbott told him she
had ongoing dull, throbbing neck pain prior to the 2008 accident at about level
4 on a scale of 0 to 10. Dr. McKenzie said Ms. Abbott graded her
pre-existing neck pain as a 2 to 3 out of 10. He reported Ms. Abbott told
him her neck pain “was there on a daily basis and was essentially constant”,
that it was aggravated by heavy lifting, looking up and down, pushing and
pulling, and was associated with mild headaches.

[66]        
Ms. Abbott acknowledged that she had periodic lower back pain in
the 1 ½ years before the accident. Dr. DeMarchi noted there were no
documented problems affecting her lower back prior to the 2008 car accident.
However, Dr. Makin noted in his report that Ms. Abbott told him she had
intermittent back pain prior to the 2008 accident, typically at level 2 to 3
out of 10 when present.

[67]        
Ms. Abbott said she had headaches one to two times per week prior
to the car accident but also testified it would take “major stress” to cause a
headache at that time.

[68]        
In direct examination, Ms. Abbott testified that prior to the 2008
car accident she experienced two very short-lived (a few minutes in duration)
episodes of numbness and tingling in her right arm. However, Dr. DeMarchi’s
clinical notes of a visit on November 2, 2007, indicate she told him she had
two episodes of numbness lasting 30 minutes each. At a subsequent visit on
December 27, 2007, his notes indicate she said she was having worsening
episodes of numbness to the right arm, and “continuous tingling radiating from
the right side of her neck down the outer right shoulder all the way down the
radial aspect of her right hand” over a few weeks. In cross-examination, Ms. Abbott
acknowledged having had tingling in her right hand that came and went beginning
in February 2000, and that Dr. DeMarchi referred her to a neurologist who
diagnosed probable right carpal tunnel syndrome. She maintained, however, that
she did not have the tingling for a couple of years prior to the car accident
(presumably with the exception of the episodes she described to Dr. DeMarchi
in November and December 2007).

[69]        
Ms. Abbott acknowledged having had right shoulder pain in February
2007, for which Dr. DeMarchi referred her for ultra sound. Dr. DeMarchi’s
clinical records indicate that his examination performed on December 27, 2007,
revealed “a lot of impingement in the right subacromial region in addition to
tenderness and pain in the cervical spine region especially in the facet joint
on the right side”.

[70]        
Ms. Abbott testified in direct examination that she had no knee
problems for years prior to the Safeway fall. However, in cross-examination,
she acknowledged that she tried to reopen a prior WCB claim in 2005 because of
ongoing knee pain.

[71]        
Having considered all the evidence, and in particular that summarized
above, I find that Ms. Abbott suffered from pre-existing degenerative
conditions as identified by Dr. DeMarchi that were symptomatic prior to
the car accident. Specifically, I find that before the 2008 car accident, Ms. Abbott
had for years suffered from occasional locking of her neck with associated
severe pain for which she sought chiropractic care, constant moderate neck pain
which she treated regularly with ice packs, intermittent lower back pain, and
at least weekly headaches. These findings are generally consistent with Ms. Abbott’s
evidence at trial and with what she told Dr. Makin and Dr. McKenzie.
In my view, the fact that there is little or no mention of neck pain or lower
back pain in Dr. DeMarchi’s records in the four to five years prior to the
car accident is not inconsistent with these findings, because it is not likely
that Ms. Abbott would have continued to complain to Dr. DeMarchi
about what had become chronic conditions.

[72]        
I also find that Ms. Abbott suffered from occasional neurological
symptoms, including tingling in her right hand as far back as February 2000,
which became continuous and radiated from the right side of her neck down to
her right hand in the eight to ten weeks just prior to the car accident. I find
that Ms. Abbott also suffered from occasional knee pain that was
particularly severe in 2005 and occasional right shoulder joint pain. Although Ms. Abbott
testified that, before the car accident, her right arm symptoms were transient
and limited to two episodes and her knee and shoulder pain were very limited,
my findings in this regard are consistent with Dr. DeMarchi’s clinical
records and, for the reasons already expressed, I conclude that those records
are more reliable than Ms. Abbott’s recollection.

[73]        
Finally, I find that Ms. Abbott has had a long history of obesity.
She said she has been heavy her entire adult life and, in the five years prior
to the 2008 car accident, her weight ranged between 180 pounds and 220 pounds. Dr. DeMarchi’s
clinical records note her weight at 246.5 pounds on August 31, 2007,
approximately four months before the accident. She is 5 feet and 1 ¼ inches
tall.

[74]        
Just prior to the 2008 car accident, Ms. Abbott was working full
time at New Vista and had been doing so since her return to work following the
2005 work injury. Her work as a licensed practical nurse was described by three
co-workers, Ms. Yongque, Ms. Tenta, and Ms. Rogers, as very
physically demanding, requiring much lifting, pushing, pulling, and walking. Ms. Abbott
said that notwithstanding her pre-existing symptoms, she was able to meet the
physical demands of her job prior to the 2008 car accident. Ms. Yongque, Ms. Rogers,
and Ms. Tenta testified that she was good at her job, interacted well with
the patients, was dependable, and displayed a strong work ethic. They said that
prior to the 2008 accident she was able to perform her duties without any
apparent difficulty.

[75]        
Ms. Abbott spends most of her non-working hours with her husband
and daughter. Prior to the car accident, she and her husband were walking twice
a week in their neighbourhood for between 30 and 45 minutes per walk. They also
enjoyed going to swap meets and garage sales, and taking regular trips to
Bellingham where they liked to spend time shopping and looking in antique
stores. Ms. Abbott and her husband enjoyed going to movies and tried to
get to a movie almost every weekend. She also enjoyed going to the mall with
her daughter, which they did three to four times per week.

[76]        
Prior to the 2008 accident, Ms. Abbott was a meticulous housekeeper
and did the large majority of the housework in her 3100 square foot,
four-bathroom home. She also did the grocery shopping and shared cooking duties
with Mr. Abbott. Mr. Abbott helped her with heavier homemaking tasks
such as sizeable vacuuming jobs and window cleaning. He also performed most of
the outside maintenance and yard work, although Ms. Abbott helped with occasional
lawn mowing and with flower planting.

[77]        
Notwithstanding her significant symptomatic pre-existing conditions, I
find that Ms. Abbott was functioning reasonably well prior to the car
accident. Her activities were limited, but she was at least well enough to
work, shop, enjoy her family relationships, and maintain her home.

What injuries did Ms. Abbott suffer in the 2008 car accident and, in
particular, did she injure her lower back and shoulder in that accident?

[78]        
Ms. Abbott claims to have suffered soft tissue injuries to her
neck, upper back, and lower back, significant aggravation of the neurological
pain, tingling and numbness in her right arm and hand, an increase in the
frequency and intensity of her headaches, and an injury to her right shoulder as
a result of the car accident. The defendants’ position is that at most Ms. Abbott
suffered an aggravation of her pre-existing neck and upper back pain, right arm
and hand neurological symptoms, and headaches in the car accident, which were
further aggravated in the Safeway fall.

[79]        
The issue is whether Ms. Abbott’s pre-existing conditions, as
described in my findings above, worsened following the car accident; and, if
so, whether Ms. Abbott has established on a balance of probabilities a
substantial connection, beyond the de minimus range, between the car
accident and the worsening of those conditions.

[80]        
Ms. Abbott testified that her neck was very sore right after the
accident. She said her right side felt like someone had kicked her. Her right
arm was very sore and had pins and needles all over it. Her back was sore and
she had a headache. She went home and lay down for the rest of the day with ice
packs on her neck, upper back, right arm, and right shoulder.

[81]        
Ms. Abbott testified that her neck and back were very sore the day
after the accident. She had a headache. Her right arm was numb and in non-stop,
excruciating pain. She went to see Dr. DeMarchi that day and returned home
afterward to spend most of the day in bed.

[82]        
Ms. Abbott’s symptoms on the day after the accident, January 4,
2008, are recorded in Dr. DeMarchi’s medical report. He recorded that Ms. Abbott
stated her head and neck had been thrown forward and backward at the time of
impact and she had immediate onset of neck pain and right lower back pain five
minutes later. Following the accident, she continued to experience posterior
neck pain, worse on the left side, with associated neck stiffness and posterior
headaches, in addition to lower back pain, worse on the right side. She also
reported worsening of pre-existing numbness and tingling to the right shoulder
and right arm.

[83]        
Dr. DeMarchi’s examination of Ms. Abbott on that day revealed
soft tissue tenderness throughout the paracervical and trapezius muscles, worse
on the left side, with 75% of normal range of movement of the neck. In
addition, there was tenderness to the midline of the low back and to the soft
tissues, worse on the right side. She had full range of movement of the lower
back. Dr. DeMarchi prescribed physiotherapy, anti-inflammatory medications,
and analgesics.

[84]        
Although I have found that Ms. Abbott’s evidence has to be regarded
with some caution, I do accept her evidence that she suffered a significant
exacerbation of her pre-existing neck and upper back pain, a significant
exacerbation of her pre-existing right arm and hand neurological pain and
numbness, a moderate exacerbation of her low back pain, and more intense and
frequent headaches following the car accident. Her evidence in this regard was
generally, if vaguely, corroborated by her husband and her daughter, and is
consistent with Dr. DeMarchi’s observations.

[85]        
In his November 9, 2011 report Dr. DeMarchi said that his diagnosis
of January 4, 2008, was that Ms. Abbott had “sustained a hyperextension
flexion injury affecting the neck and lower back secondary to the motor vehicle
accident”. He later stated his “final diagnosis” as a whiplash-associated
disorder to the neck and upper back as a result of the motor vehicle accident,
and a mechanical lower back injury and severe contusions to the right shoulder
and the right knee in the fall. He concluded that the car accident ultimately
resulted in pain and disability affecting the neck, upper back, and right arm,
while the Safeway fall ultimately resulted in further pain and disability
affecting the right knee and lower back.

[86]        
Dr. McKenzie concluded that the car accident aggravated the
degenerative changes in Ms. Abbott’s neck and the neurological symptoms in
her right arm, causing them to be more symptomatic. He attributed her lower
back symptoms, at least as they existed in August 2011, to the fall, based on
the fact that Ms. Abbott reported to him that her lower back pain had
essentially resolved by November 2008.

[87]        
Dr. Vaisler’s opinion was that Ms. Abbott most probably
sustained a soft tissue injury to her neck and lower back, subacromial
impingement of her right shoulder, and a neurologic injury to her right hand as
a result of the motor vehicle accident, while the Safeway fall most probably
resulted in a contusion to her head, an exacerbation of the pain in her neck
and lower back, and a contusion to both knees.

[88]        
Dr. Sovio noted that Ms. Abbott told him her neck pain
worsened following the car accident and she “started” to get right shoulder,
neck, arm, and hand pain, along with numbness and tingling, immediately
following the car accident, but he emphasized that the clinical records
indicated she had these symptoms prior to the car accident. While he did
express the view that Ms. Abbott’s neck and lower back pain, at least at
the time he saw her in August 2012, was attributable to “degenerative cascade”,
he did not expressly opine that Ms. Abbott did not suffer any soft tissue
injury in the car accident. He merely said that it was difficult to quantitate
her subjective symptoms. He did state that, in his opinion, the car accident
was not a cause of the shoulder impingement syndrome or shoulder joint pain.

[89]        
Dr. Makin did not comment on whether there were musculoskeletal causes
for Ms. Abbott’s symptoms. He did acknowledge that if Ms. Abbott’s
subjectively reported history is accurate, the frequency and duration of her
headaches might have increased after the car accident. He did not give a
definitive opinion with respect to the neurologic symptoms in Ms. Abbott’s
right arm and hand.

[90]        
Having considered all of the evidence, I find on a balance of
probabilities that, as a result of the car accident, Ms. Abbott suffered a
soft tissue injury to her neck, upper back, and lower back, with resulting
significantly increased pain in the neck and upper back and moderate pain to
the lower back, increased intensity and frequency of headaches, and significant
aggravation of her right arm neurological symptoms. I accept her evidence in this
regard as well as the evidence of Dr. DeMarchi and Dr. Vaisler. Dr. McKenzie’s
evidence supports most of these findings, with the exception of the finding
with respect to the lower back injury. The latter finding, in my view, is not
inconsistent with Dr. McKenzie’s evidence. He attributed Ms. Abbott’s
lower back pain, at the time he examined her, to the fall, on the basis that
she had told him her lower back pain had essentially resolved prior to the fall
(thus implying it had existed prior, but improved, in the time leading up to
the fall). Dr. Sovio and Dr. Makin did not, in my view, express
directly inconsistent opinions. Further, as already noted, with the exception
of the lower back injury, the defendants did not forcefully submit otherwise.

[91]        
The remaining area of dispute is the right shoulder injury, which the
defendants submit was not caused by the car accident but rather pre-existed the
car accident and was aggravated by the Safeway fall.

[92]        
Ms. Abbott claims to have injured her right shoulder joint in the
car accident, an injury she said was distinct from the pain and neurological
symptoms in her right arm that begin at her neck and run through the shoulder
and into her fingers. However, her evidence with respect to the right shoulder
joint pain was not nearly as definitive as it was with respect to her other
symptoms. For example, at one point she said she did not really notice the
right shoulder joint pain until after she had carpal tunnel surgery in March
2010, which was nearly a year and a half after the Safeway fall.

[93]        
Dr. DeMarchi’s November 9, 2011 report attributes the shoulder
joint pain more to the fall than to the car accident. His “final diagnosis” did
not mention the shoulder in relation to the car accident but noted “a severe
contusion to the right shoulder” as having occurred in the fall. In this
report, most of the references to the right shoulder in relation to the car
accident appear to be linked to the neurological symptoms in the right arm. For
example, when referring to the car accident, he said Ms. Abbott’s symptoms
included “right shoulder pain with radiation to the right arm, and tingling and
numbness to the lateral aspect of the hand”. In contrast, when referring to the
fall, he said Ms. Abbott “complained that the right shoulder had been
injured in the fall and she was complaining of a throbbing and burning
continuous pain in the right shoulder from the slip and fall”, “there was mild
to moderate tenderness in the subacromial region and to the long head of biceps
tendon of the right shoulder consistent with impingement”, and Ms. Abbott
“complained of a worsening pain to the right shoulder joint following the trip
and fall”.

[94]        
Similarly, in his October 22, 2013 follow-up reports, although the
divide is not as sharp, Dr. DeMarchi continued to attribute the shoulder
joint pain more to the fall and the right side neurological symptoms to the car
accident. In the report related to the car accident, he noted that with each
follow-up visit through 2012 and 2013, Ms. Abbott continued to complain of
“pain to the right shoulder with associated neurological symptoms affecting the
right hand” but he also noted that when examining her on September 24, 2013,
“[t]he right shoulder was tender to palpation with pain on abduction and with
positive impingement signs”. In the report dealing with the fall, Dr. DeMarchi
referred to “worsening of her pain to the right shoulder as a result of the
fall” and, when referring to her follow-up visits in late 2011, 2012 and 2013,
he said she continued to complain of “severe pain coming from the right
shoulder”. Finally, in his clinical record for January 10, 2012, Dr. DeMarchi
noted “[p]ersisting right shoulder and right knee pains” that he said were
“secondary to her slip and fall accident”.

[95]        
Dr. DeMarchi’s evidence at trial was that the right shoulder was
injured in the car accident and aggravated in the fall, but he also
acknowledged his clinical notes attributed the shoulder injury to the fall. He
said that Ms. Abbott was dealing with many issues and it was difficult to
assign each of her complaints to a particular event.

[96]        
There is no reference to the right shoulder pain in Dr. McKenzie’s
reports, which were prepared in August and October 2011.

[97]        
Dr. Vaisler expressed the opinion that Ms. Abbott most
probably sustained subacromial impingement of her right shoulder in the car
accident. This conclusion is hard to reconcile with his acknowledgment that he
was unable to confirm any evidence of an injury to her right shoulder as a
result of the car accident. Dr. Vaisler noted Ms. Abbott had symptoms
consistent with subacromial impingement just prior to the car accident and
there was no further mention of shoulder symptoms for six months following. His
opinion that Ms. Abbott most probably sustained subacromial impingement of
her right shoulder appeared to be based on his further opinion that it is
possible for shoulder impingement to be aggravated following a soft tissue
injury to the neck. However, he noted having been told by Ms. Abbott that
she sustained a direct blow to her right shoulder in the Safeway fall and did
not explain why, given the absence of evidence of an injury to the right
shoulder in the car accident and the presence of evidence of a direct blow to
the right shoulder in the fall, he nonetheless concluded that the shoulder was
injured in the car accident.

[98]        
Dr. Sovio’s opinion was that the shoulder injury was not caused by
the car accident, based on the fact that Ms. Abbott had a pre-accident
history of shoulder impingement and there was no evidence the shoulder was
injured in the car accident.

[99]        
Having considered all of the foregoing evidence, I find that Ms. Abbott
has not established, on a balance of probabilities, a substantial connection
between the injury to her right shoulder joint and the car accident. In my
view, Dr. DeMarchi’s evidence, when considered as a whole, is more
supportive of the conclusion that the right shoulder was injured in the fall
and not in the car accident. Given the concerns with respect to Dr. Vaisler’s
conclusion noted above, I prefer the evidence of Dr. Sovio regarding the
shoulder injury. Given the evidence of pre-existing right shoulder impingement,
the lack of any evidence of an actual injury to Ms. Abbott’s right
shoulder in the car accident, the evidence that she did suffer a severe
contusion to the right shoulder in the fall, and the vagueness of her own
evidence with respect to her shoulder symptoms, I find it is more probable than
not that Ms. Abbott did not injure her right shoulder joint in the car
accident.

What was Ms. Abbott’s condition between the 2008 car accident and the
Safeway fall, and why?

[100]     Ms. Abbott
testified that her condition did not improve to any material extent in the ten
months between the car accident and the Safeway fall. She said she had not even
considered when she might return to work.

[101]     Ms. Abbott
said that during this time, her neck pain was constant and it was hard to move
her neck. She told Dr. McKenzie that it was at a level of 6 to 7 out of 10
just before the fall, and she agreed with that assessment at trial. She
acknowledged that her neck pain varied in intensity and she had some days that
were better than others. The right arm pain and numbness significantly worsened
right after the car accident, from her fingertips to her neck, and felt
excruciating and like constant pins and needles. She acknowledged having
pre-existing neurological symptoms in her right arm before the car accident but
said the pain and other symptoms were much worse afterward. Ms. Abbott
testified that during this time she also had constant headaches, her upper back
was continuously sore, and she had pain in her middle and low back. She said
that by the time of the fall, her low back pain had improved but not resolved.

[102]     In his
report, Dr. McKenzie noted that Ms. Abbott told him that by November
2008, just prior to the Safeway fall, she felt her lower back injury had
essentially resolved. He also said she reported that her neck pain and pins and
needles symptoms were ongoing, on the right side much worse than the left, and
she graded her neck pain as a 6 to 7 out of 10.

[103]     Ms. Abbott
had a regularly scheduled appointment with Dr. DeMarchi on November 18,
2008, the day of the Safeway fall, for follow-up of her car accident injuries. Dr. DeMarchi
summarized Ms. Abbott’s symptoms on that day in his November 9, 2011
medical report, as follows:

·      
intermittent tingling to the lower right facial area and
continuous tingling to the lateral aspect of the right arm and hand and the
thumb and lateral two fingers;

·      
severe pain radiating down the right arm and into the whole of
the right hand with use of the hand; and,

·      
continuous lower back and neck pain associated with headaches.

[104]     At trial, Dr. DeMarchi
testified that at her appointment on November 18, 2008, prior to the fall, Ms. Abbott
complained of lower back pain, neck pain, and headaches.

[105]     I accept Ms. Abbott’s
evidence about her condition just prior to the fall. It was largely consistent
with what Dr. DeMarchi and Dr. McKenzie reported. The one area of
slight inconsistency was with respect to the lower back. Dr. McKenzie
noted that she told him it had essentially resolved by the time of the fall. At
trial, Ms. Abbott acknowledged that her lower back pain had improved
significantly by the time of the fall, but she did not agree that it had
completely resolved. Dr. DeMarchi’s evidence was that Ms. Abbott was
continuing to complain of lower back pain just prior to the fall. Having
considered all the evidence, I find that the lower back pain had improved
between the car accident and the fall but had not resolved, and that Ms. Abbott
was continuing to suffer from intermittent, but less severe, lower back pain.

[106]     I find
that in the ten months between the car accident and the fall, including just
prior to the fall, Ms. Abbott was continuing to suffer from:

·      
significant and virtually constant neck and upper back pain, much
worse than the pain that pre-existed the car accident;

·      
very significant and constant right arm pain, tingling, and
numbness from neck to fingers, much worse than the symptoms that pre-existed
the car accident;

·      
intermittent and moderate lower back pain; and,

·      
headaches, more intense and frequent than before the car
accident,

all of which were substantially connected to the injuries
she suffered in the car accident.

What injuries did Ms. Abbott suffer in the Safeway fall?

[107]     Ms. Abbott
stopped at Safeway on November 18, 2008, sometime after the appointment with Dr. DeMarchi.
She testified this was the first time she had gone shopping on her own since
the car accident. She was returning the shopping cart when she tripped over a
bike that had been left in the path of the carts. She said she fell on her
knees, then struck her right hip and right shoulder on the floor, and landed on
her right side. Before she hit the ground, she struck her head on the railing.

[108]     After the
fall, Ms. Abbott returned to Dr. DeMarchi’s office. She complained of
pain in her knees and right hip. She had a large bump on the right side of her
head. She testified that her neck pain was worse than it had been before the
fall.

[109]     Dr. DeMarchi’s
November 9, 2011 medical report states that when Ms. Abbott fell, she
struck the right side of her parietal skull and her left knee on the pavement,
and experienced a twisting injury to her lower back. His examination on that
day revealed swelling to the right parietal skull, worsening tenderness to the
neck but with similar range of movement to prior to the fall, and worsening
tenderness to the lower right back but with similar range of movement to her
pre-fall condition. He noted bruising on her left knee. His November 9, 2011
medical report also notes bruising on the right knee and right arm evident in a
follow-up appointment three days later.

[110]     There is
no dispute that Ms. Abbott suffered a contusion to her head, an
aggravation of her neck and upper back symptoms, a significant aggravation of
her lower back symptoms, a severe contusion to her right shoulder, and a
significant injury to her knees, particularly the right knee, in the Safeway
fall. Ms. Abbott’s position is the knee injury is divisible and the neck,
back, and shoulder injuries are indivisible. The defendants’ position is that
the neck injury is indivisible but the knee, lower back, and shoulder injuries
are divisible.

[111]     For the
reasons already expressed, I find that Ms. Abbott aggravated her neck and
back symptoms in the fall and also sustained new injuries to her knees
(primarily the right knee) and right shoulder in the fall. The neck and back
injuries suffered in the fall cannot be distinguished from those suffered in
the 2008 car accident. They are indivisible: Bradley, at para. 37. The
knee and shoulder injuries are divisible.

What has Ms. Abbott’s condition been since the Safeway fall, and why?

[112]     Ms. Abbott
testified that her right arm neurological symptoms were significantly improved,
if not resolved, following carpal tunnel release surgery in March 2010.
Although Dr. Vaisler and Dr. Sovio both commented on the absence of
an anatomical explanation for an improvement in symptoms above the wrist
following such surgery, Dr. Makin, the neurologist, said patients do
sometimes report such improvement.

[113]     Ms. Abbott
said in her direct evidence that, for about two months after the Safeway fall,
her neck pain and headaches were more severe than before the fall, and then
settled back to the constant but somewhat less intense pain she had been
experiencing just before the fall. However, over the last five years, her neck
and upper back pain have gradually worsened. She acknowledges she has some good
days but maintains that she has constant pain in her neck, upper back, right
shoulder, and knees, daily headaches, and intermittent lower back pain that is
aggravated by walking.

[114]     She claims
that her neck and upper back and shoulder pain continue to prevent her from
engaging in the pushing, pulling, and lifting required by her job. She said the
shoulder joint pain has been getting progressively worse to the point that, by
the time of trial, she could not even lift a teacup with her right arm. She
claims she suffers from intense pain in her right knee, lower back pain when
she walks, and a dull throbbing ache in both knees even when not walking. This
pain prevents her from walking more than very short distances and also prevents
her from working. She claims these conditions also prevent her from maintaining
her home and engaging in her pre-car-accident activities of recreational
walking and shopping, and interfere with her ability to enjoy movies and
maintain her personal hygiene.

[115]      The
defendants do not take issue with Ms. Abbott’s evidence as it pertains to
her shoulder, knee, and lower back pain, but, as already noted, they say those
symptoms arise from divisible injuries suffered in the fall. However, they do
take issue with her evidence regarding her current neck and upper back symptoms
and headaches. Their position is that, in the approximately two and one-half years
following the Safeway fall, Ms. Abbott’s neck and upper back symptoms and
headaches gradually improved to their pre-car-accident state of ongoing
moderate pain. They say notes in Dr. DeMarchi’s clinical records support
this position as they indicate some improvements to Ms. Abbott’s neck
symptoms during this time. Both Dr. DeMarchi and Ms. Abbott say that
any reports of improvement in Dr. DeMarchi’s clinical records reflected
nothing more than a good day.

[116]     The
utility of statements attributed to a plaintiff in her physician’s clinical
records was commented on in Edmondson v. Payer, 2011 BCSC 118, aff’d
2012 BCCA 114. One of the difficulties with clinical records identified in that
case, at paras. 33-34, is that by nature, they often require explanation,
expansion and/or qualification.

[117]     Dr. DeMarchi
has been Ms. Abbott’s primary care physician for 30 years. In the three
reports he wrote for the trial, he summarized the progression of her conditions
based on a review of his clinical records as a whole. That summary does
not support the defendants’ position. He noted that Ms. Abbott’s neck pain
and associated stiffness remained constant throughout 2009. Throughout 2010, Ms. Abbott
continued to complain to Dr. DeMarchi of posterior neck pain with
associated stiffness. He noted persisting soft tissue tenderness and restricted
range of movement of the neck muscles and right trapezius muscle. Throughout
2011, Dr. DeMarchi noted that Ms. Abbott continued to have a severe
continuous throbbing pain in the posterior neck and trapezius muscle regions,
worse on the right side, with radiation to both shoulders and into the mid-back
area. He noted that his examinations in late 2011 revealed ongoing soft tissue
tenderness throughout the neck and shoulder regions on both sides, with spasms
to the right trapezius muscle and pain to the neck muscles, although near full
range of movement of the neck. In his report of October 22, 2013, Dr. DeMarchi
stated that there had been no significant improvement in the symptoms.

[118]     As already
noted, Dr. Sovio opined that Ms. Abbott’s neck and back pain, at the
time he saw her in August 2012, was attributable to “degenerative cascade”.
However, Dr. Sovio appears to have completely discounted Ms. Abbott’s
subjective complaints on the basis that they are “difficult to quantitate”. For
the reasons already expressed, I generally accept Ms. Abbott’s evidence of
her subjective symptoms except where it is inconsistent with other evidence.
For this reason, I prefer Dr. DeMarchi’s opinions with respect to the
cause and progression of Ms. Abbott’s neck and back symptoms.

[119]    
For the foregoing reasons, I find as follows:

·       Ms. Abbott’s
right arm neurological symptoms significantly improved, if not resolved,
following her carpal tunnel release surgery in March 2010;

·       Ms. Abbott’s
neck and upper back symptoms were significantly aggravated for about two months
following the Safeway fall, then settled back to the constant but somewhat less
intense pain she had been experiencing just before the fall, and since then
they have gradually worsened;

·       Ms. Abbott’s
lower back pain was very significantly aggravated in the fall, then improved
over time and, at trial, was intermittent and exacerbated by walking;

·       Ms. Abbott’s
headaches increased in intensity for about two months following the fall, then
decreased to the same level as prior to the fall, and still occur daily;

·       Ms. Abbott
continues to suffer from very significant and constant right shoulder pain;
and,

·      
Ms. Abbott suffers from intense pain in her right knee and
lower back pain when she walks, and a dull throbbing ache in both knees even
when not walking.

Is Ms. Abbott disabled and, if so, to what extent and why?

[120]     The
medical experts generally agree that Ms. Abbott is disabled from working
as a licensed practical nurse and significantly disabled from the activities of
daily living. The dispute centers on the cause of the disability and, to some
degree, its extent. Ms. Abbott’s position is that her ongoing neck and
upper back pain are, on their own, fully disabling, although she acknowledges
that her knee pain is also disabling. The defendants’ position is that Ms. Abbott’s
knee injury alone is completely disabling and that the injuries she suffered in
the car accident ceased to be disabling once her right arm neurological
symptoms had resolved in March 2010. The defendants submit that Ms. Abbott’s
neck and upper back symptoms and headaches had improved to their pre-accident
state of ongoing moderate pain and, but for the knee injury suffered in the
fall, she could have returned to work. The defendants also submitted that Ms. Abbott’s
pre-existing conditions would have rendered her disabled in any event.

[121]     Ms. Abbott
testified that she is disabled from working and significantly disabled from her
activities of daily living as a result of the injuries she suffered in the 2008
car accident. She acknowledged that the knee injury and the aggravation of her
lower back injury suffered in the fall prevent her from walking more than very
short distances and, as such, those conditions prevent her from working.
However, she maintained that her ongoing neck and upper back pain attributable
to the 2008 car accident, on its own, also precludes her from working because
it prevents her from being able to engage in the pushing, pulling, and lifting
activities required by her job. She says that the neck and upper back pain also
precludes her from engaging in many activities of daily living such as
maintaining her home, enjoying movies, and maintaining her own personal
hygiene.

[122]     Dr. McKenzie
expressed the view that the disability Ms. Abbott complains of (that is,
total disability from work and partial disability from activities of daily
living) is consistent with his physical examination. However, he did not
address the question of the extent to which the injury suffered in the car
accident, on its own, caused or contributed to the disability.

[123]     Dr. Vaisler
expressed the view that Ms. Abbott is most probably disabled from full
time work involving heavy lifting, heavy labour, or sustained or repetitive
bending on account of the injuries to her neck and lower back resulting from
the car accident. In his view, it is more likely than not that this disability
will be permanent. He said Ms. Abbott is most probably capable of
part-time light-duty work at waist level involving alternating periods of
sitting and standing. In cross-examination, he agreed that the disability
associated with Ms. Abbott’s neck and lower back symptoms resulted from
both the car accident and the Safeway fall. He also agreed that Ms. Abbott’s
knee symptoms alone would have disabled her from the heavy work she had been
doing as a nurse.

[124]     Dr. Sovio,
the orthopedic surgeon called by the defendants, agreed that Ms. Abbott
was permanently disabled. He attributed the disability to obesity,
deconditioning, and her other pre-existing degenerative conditions,
particularly the osteoarthritis in the knees. In his view, as a result of those
conditions, she likely would have ceased working well before the trial
irrespective of either the car accident or the fall.

[125]     Dr. DeMarchi’s
view is that Ms. Abbott is completely and permanently disabled from
working as a licensed practical nurse and indeed from working in any capacity,
and that she is partially disabled from her activities of daily living. In his
view, she has become disabled approximately seven years earlier than she
otherwise would have if the 2008 car accident and the fall had not occurred.

[126]    
Dr. DeMarchi also expressed the view that Ms. Abbott was
disabled by the injury to her right knee. In his opinion, the injuries Ms. Abbott
suffered in the 2008 accident (primarily the neck, upper back, and right arm)
and those suffered in the Safeway fall (primarily the right knee and lower
back) disabled her in different ways. He said the following in his November 9,
2011 report:

With respect to the contributing
percentages between the motor vehicle accidents and the slip and fall injury,
it should be noted that each accident disabled Georgia in different ways. The
motor vehicle accident resulted in pain and disability affecting the neck,
upper back, and right arm. The slip and fall accident resulted in further pain
and disability affecting the right knee and the lower back. Each of these areas
of disability affect her employability and her activities of daily living in
different ways and it is the combination of all of these areas being affected
that has resulted in her inability to return to the work force or perform
activities of daily living. I would therefore conclude that each area of
disability is contributing to the overall disability in an equal fashion. This
would render 50% responsibility to the motor vehicle accident and 50%
responsibility to the trip and fall injury in accelerating her overall
disability by 7 years.

[127]     The
defendants say that Ms. Abbott’s own expert witnesses agreed that she was
totally disabled as a result of the injuries she suffered in the Safeway fall.
They say that while these doctors expressed the view, in their reports, that
the injuries suffered by Ms. Abbott in the car accident continue to
contribute to her disability, this view is inconsistent with their
acknowledgement that the injuries suffered in the fall were enough to totally
disable her.

[128]     In my
view, the defendants have mischaracterized the expert evidence regarding Ms. Abbott’s
disability. Counsel for the defendants points to the October 22, 2013 follow-up
report dealing specifically with the Safeway fall, where Dr. DeMarchi said
Ms. Abbott was permanently disabled from all occupations “as a result of
these injuries”. Counsel for the defendants says the reference to “these”
injuries in this particular report must be a reference to the injuries suffered
in the Safeway fall and, as such, Dr. DeMarchi must view those injuries
alone as being completely disabling. However, the same report goes on to
expressly reiterate the view Dr. DeMarchi expressed in his November 9,
2011 report, that he considers the injuries suffered in the Safeway fall and
those suffered in the car accident to be equally disabling. Further, the same
sentence noted above by counsel for the defendants is also included in Dr. DeMarchi’s
other October 22, 2013 report dealing specifically with the car accident. He
says Ms. Abbott is permanently disabled from all occupations “as a result
of these injuries” (thus referring to those injuries suffered in the car
accident).

[129]     In
cross-examination, Dr. DeMarchi agreed that Ms. Abbott’s knee injury
would hamper her mobility. He also agreed that on one occasion, April 25, 2012,
Ms. Abbott told him that her knee pain was her most disabling condition
and her back pain was almost as bad. However, he emphasized that this note
merely recorded what she said about how she felt on that particular day. He did
not resile at all from his opinion that the injuries suffered in the car
accident and those suffered in the Safeway fall disabled her in different ways
and that they were equally disabling.

[130]     In
cross-examination, Dr. McKenzie agreed that Ms. Abbott’s knee injury
was not caused by the motor vehicle accident. He expressed the view that, given
her fairly severe degenerative changes, Ms. Abbott was at risk of
developing knee pain even without the fall. He could not put a time frame on
when that might have occurred. In his opinion, the fall activated these
degenerative changes and caused her to go from an asymptomatic state to a
symptomatic state. However, he did not comment on whether the knee injury alone
would have totally disabled her. To the contrary, his evidence suggests that
the knee injury alone would not have been permanently disabling, as, in his
view, it would be easier to resolve through surgery than the other injuries.

[131]     Dr. Vaisler
expressed the view in his report that Ms. Abbott was disabled “on account
of the soft tissue injuries to her neck and low back, resulting from the motor
vehicle accident of January 3, 2008”. In cross-examination, he agreed that the
disability associated with her neck and lower back resulted from both the
accident and the Safeway fall. He also agreed that her knee symptoms alone
would have disabled her from the heavy lifting work she had been doing as a
licensed practical nurse. However, he did not resile from his opinion that she
was disabled as a result of her neck and lower back injuries, and that those
injuries resulted from both the car accident and the Safeway fall.

[132]     Both Dr. DeMarchi
and Dr. Vaisler considered whether Ms. Abbott’s neck and upper back
injuries, on their own, were disabling. Both doctors concluded that they were.
I view their evidence as a whole as supporting the conclusion that Ms. Abbott
is permanently disabled from her job as a licensed practical nurse and
partially disabled from her activities of daily living by the injuries she
suffered in the 2008 car accident, some of which were aggravated by the fall,
and that she is also disabled, in a different way, by the knee injury she
suffered in the fall.

[133]     Dr. Vaisler
also expressed the view that Ms. Abbott was “most probably” capable of
light-duty work at waist level involving alternating periods of sitting and
standing. However, he was also careful to clarify that he was speaking only
about her physical capabilities. Ms. Abbott was nearly 53 years old at the
time of the 2008 accident. She had worked as a licensed practical nurse for
over 30 years and had no other experience or training. I accept her evidence of
ongoing and virtually constant pain.

[134]     Having
considered all of the evidence, I find that, irrespective of the injury to her
knees, Ms. Abbott is permanently disabled from working as a licensed
practical nurse and from any other job and is partially disabled from the
activities of daily living, and that she has been so disabled since the 2008
car accident, as a result of the ongoing neck and back pain caused by that
accident. I do not agree with Dr. Vaisler’s assessment that she is most
probably capable of light-duty work. That view is at odds with the opinions of Dr. DeMarchi,
Dr. McKenzie, and even Dr. Sovio, whose view was that Ms. Abbott
would have become disabled as a result of her pre-existing conditions well
before the trial irrespective of the car accident.

[135]     I also
find that Ms. Abbott very likely would have become permanently disabled in
any event, even if the 2008 car accident and the fall had not occurred, as a
result of her pre-existing conditions. I am also satisfied that the knee injury
suffered in the fall would have disabled her had she not already been disabled.
I will address the impact of the pre-existing conditions and knee injury on the
assessment of her damages later in these reasons.

Prognosis

[136]     Ms. Abbott
has a very poor prognosis for any material recovery from her current symptoms.

[137]     In Dr. DeMarchi’s
opinion, she is likely facing surgery to the cervical spine and to the right
knee and possibly also surgery to the lower back. He said the goal of surgery
for Ms. Abbott is to improve pain and function but it is not likely to
materially improve her ability to work or function in her daily activities. Dr. Vaisler’s
view is that Ms. Abbott will also require shoulder surgery. In his
opinion, with a regular exercise and fitness program and the use of a contoured
back support, it is likely that Ms. Abbott’s neck symptoms will remain
constant and her lower back symptoms will improve but not resolve.

[138]     All of the
medical evidence supports the conclusion that Ms. Abbott is permanently
disabled. While there is some minor variation in the opinions regarding the
extent of her disability and more significant variation in the opinions
regarding its cause, none of the opinions expressed any optimism for
significant improvement.

Summary

[139]     In
summary, I make the following findings:

(a)      Ms. Abbott’s
condition prior to the 2008 car accident included severe degenerative disc
disease, spondylosis, spinal stenosis, osteoarthritis, and meniscal
degeneration to the right knee, and arthritis of the shoulder joint. Those
pre-existing conditions were symptomatic prior to the car accident.
Specifically, Ms. Abbott had for years suffered from occasional locking of
her neck with associated severe pain, constant moderate neck pain, intermittent
lower back pain, headaches at least weekly, occasional neurological symptoms
including tingling and numbness in her right hand and arm that, in the eight to
ten weeks before the car accident, had become continuous, occasional knee pain
that was particularly severe in 2005, and occasional pain in the right shoulder
joint. She also had a long history of obesity and physical deconditioning.
However, notwithstanding these conditions, Ms. Abbott was functioning
reasonably well just prior to the car accident.

(b)      In the 2008 car accident, Ms. Abbott
sustained soft tissue injury to her neck, upper back, and lower back, resulting
in significantly increased pain in the neck and upper back, moderate pain to
the lower back, increased intensity and frequency of headaches, and the
significant aggravation of her right arm neurological symptoms. Ms. Abbott
did not injure her right shoulder joint in the car accident.

(c)      In the ten months between
the car accident and the fall, including just prior to the fall, Ms. Abbott
was continuing to suffer from:

·      
significant neck and upper back pain, much worse than the pain
that pre-existed the car accident;

·      
very significant right arm pain, tingling and numbness from neck
to fingers, much worse than the symptoms that pre-existed the car accident;

·      
intermittent and moderate lower back pain; and,

·      
headaches, more intense and frequent than before the car
accident,

all of which were substantially
connected to the injuries she suffered in the car accident.

(d)      Ms. Abbott aggravated
her neck and back symptoms and sustained new injuries to her knees (primarily
the right knee) and right shoulder in the Safeway fall.

(e)      The neck, upper back, and
lower back injuries are indivisible. The right arm, shoulder, and knee injuries
are divisible, with the aggravation of the right arm symptoms being caused by
the car accident and the shoulder and knee injuries being caused by the fall.
The defendants are liable for the divisible right arm injury as well as the
indivisible injuries.

(f)       Since the Safeway fall, Ms. Abbott’s condition
has included:

·       right
arm neurological symptoms that significantly improved, if not resolved,
following carpal tunnel release surgery in March 2010;

·       significant
aggravation of her neck and upper back symptoms for about two months, which
then settled back to the constant but somewhat less intense pain she had been
experiencing just before the fall, and then gradually worsening again;

·       significant
aggravation of her lower back pain, which improved over time and, at the time
of trial, was intermittent and exacerbated by walking;

·       an
increase in intensity of her headaches for about two months following the fall,
which then decreased to the same level as prior to the fall, and still occur
daily;

·       very
significant and constant right shoulder pain; and,

·       intense
pain in her right knee and low back pain when she walks, and a dull throbbing
ache in both knees even when not walking.

(g)      Ms. Abbott is
disabled as a result of her ongoing neck and back pain caused by the 2008 car
accident. She is permanently disabled from working as a licensed practical
nurse and from any other job and is partially disabled from the activities of
daily living. She is not capable of light-duty work. Ms. Abbott very
likely would have become permanently disabled in any event, even had the 2008
car accident and the fall not occurred, as a result of her pre-existing
conditions. The knee injury suffered by Ms. Abbott in the fall would have
disabled her had she not already been disabled.

(h)      Ms. Abbott has a very
poor prognosis for any material recovery from her current symptoms. It is
extremely unlikely that her condition will improve.

Damages

Duty to mitigate

[140]     The
defendants submit that Ms. Abbott’s condition, particularly her problems
with her knees and lower back, could have been improved had she engaged in a
program of exercise and weight loss, and that her damages should be reduced as
a result of her failure to do so.

[141]     A
plaintiff has an obligation to take all reasonable measures to reduce his or
her damages, including undergoing treatment to alleviate or cure injuries: Danicek
v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111, at para. 234.

[142]     Once the
plaintiff has proved the defendant’s liability for his or her injuries, the
defendant must, in order to succeed on a mitigation defence, prove that the
plaintiff acted unreasonably and that reasonable conduct would have reduced or
eliminated the loss. Whether the plaintiff acted reasonably is a factual
question involving consideration of all the circumstances: Gilbert v. Bottle,
2011 BCSC 1389, at para. 202.

[143]     Chiu v.
Chiu, 2002 BCCA 618, at para. 57, sets out the test for
failure to mitigate in personal injury cases where the plaintiff has not
pursued a course of medical treatment recommended to him by doctors:

[T]he defendant must prove two
things: (1) that the plaintiff acted unreasonably in eschewing the recommended
treatment, and (2) the extent, if any, to which the plaintiff’s damages would
have been reduced had he acted reasonably.

[144]     All the
medical experts agree that Ms. Abbott is obese and would benefit from
exercising and losing weight.

[145]     In Robinson
v. Anderson, 2009 BCSC 1450, it was held that the plaintiff’s failure to
lose weight and increase her fitness level amounted to a failure to mitigate in
circumstances where her injuries were not permanent, the likelihood was high
that she would enjoy substantial or even complete recovery within a short time
if she took steps to improve her fitness level, and there was no basis for
concluding that the plaintiff was unable to heed the advice to lose weight and
become more physically fit.

[146]     In
contrast, where a plaintiff has a pre-accident history of obesity and makes
honest but ultimately unsuccessful efforts to lose weight, courts have refused
to find that the plaintiff has acted unreasonably in not losing weight: Humphrey
v. Rancier Estate, [1985] B.C.J. No. 835 (S.C.); Hunt v. Ugre,
2012 BCSC 1704.

[147]     It is
uncontroverted that Ms. Abbott has a very long-standing history of
obesity. She testified she was walking for exercise before the car accident,
but exercise tended to aggravate her symptoms after the accident. She also
testified she modified her diet and reduced her portion sizes in an effort to
lose weight after the car accident. She was not successful in her efforts. I am
not persuaded that Ms. Abbott, with her particular history and injuries,
acted unreasonably in failing to lose weight and improve her fitness level.
Further, I do not think it can be said that she “eschew[ed] the recommended
treatment”. She made efforts to follow the recommendations but did not succeed.

[148]     In any
event, while it is likely that a significant weight loss would alleviate some
of the problems with Ms. Abbott’s knees, the defendants are not liable for
damages associated with the knee injury. The defendants are liable for damages
associated with the injuries suffered in the car accident which, at the time of
trial, consisted primarily of Ms. Abbott’s ongoing neck and back pain. In
my view, the evidence falls short of establishing that Ms. Abbott’s neck
and upper back injuries would have improved materially had she lost weight.

[149]     In the
circumstances, the defendants have failed to establish that Ms. Abbott acted
unreasonably and that her damages would have been reduced had she been
successful in losing weight.

Non-pecuniary damages

[150]     Non-pecuniary
damages are intended to compensate for pain, suffering, loss of enjoyment of
life, and loss of amenities. In Stapley v. Hejslet, 2006 BCCA 34,
at para. 46, leave to appeal ref’d [2006] S.C.C.A. No. 100, the Court
of Appeal set out a non-exhaustive list of factors to be considered in
assessing non-pecuniary damages including the age of the plaintiff, the nature
of the injury, the severity and duration of pain, the extent of disability and
impairment of physical and mental abilities, emotional suffering, impairment of
family and other relationships, and loss of lifestyle.

[151]     The
injuries suffered by Ms. Abbott in the car accident have had a significant
effect on all aspects of her life. For more than two years after the car
accident, she suffered from constant and intense right arm pain, numbness, and
tingling. She continues, now more than six years after the car accident, to
suffer from neck and back pain and headaches, significantly more intense than
what she experienced before the car accident. The pain has disabled her from
working at a job she enjoyed and from participating in virtually all the
activities she enjoyed before the accident. While the knee pain, for which the
defendants are not liable, certainly contributes to her disability,
particularly the limitations on her ability to walk, her other symptoms alone
have disabled her. Moreover, her lower back injury, which I have found is
indivisible, contributes to her inability to walk in any event.

[152]     Ms. Abbott
is now 59 years old. Her prognosis is poor. Her pre-accident pleasures and
activities, while of utmost importance to her, were modest – limited to her
work, spending time with her husband and daughter, and maintaining her home.
She is likely to live out her “golden years” significantly impaired in her
ability to enjoy even these simple pleasures.

[153]     Maintaining
a meticulous home was important to Ms. Abbott. Her ability to do housework
is severely compromised and she now relies heavily on her husband and daughter
to assist her. Even with their help, the home is not maintained to her
preferred standard.

[154]     She no
longer enjoys trips to the mall with her daughter and shopping trips with her
husband. She cannot enjoy movies as much as she used to.

[155]     Ms. Abbott’s
intimate relationship with her husband has suffered as a result of her pain.
She is unhappy and complains about her pain, and her relationship with her
daughter has suffered because she is less pleasant to be around.

[156]     Ms. Abbott
submits that an award of non-pecuniary damages of $100,000 is appropriate. She
cites the following cases in support:

(a) Poirier v. Aubrey,
2010 BCCA 266 ($100,000);

(b) Neumann v. Eskoy, 2010
BCSC 1275 ($90,000);

(c) Kuskis
v. Hon Tin, 2008 BCSC 862 ($65,000, which the plaintiff says is
approximately $70,000 in 2013 dollars);

(d) MacIntosh
v. Davison, 2013 BCSC 2264 ($90,000 reduced by 20% to reflect a measurable
risk that pre-existing conditions would have detrimentally affected the
plaintiff in the future); and,

(e) Johnson
v. Kitchener, 2012 BCSC 1796 ($90,000 reduced by 10% to reflect a
measurable risk that pre-existing conditions would have detrimentally affected
the plaintiff in the future).

[157]     Ms. Abbott
acknowledges her pre-existing conditions must be considered in assessing her
original position and also acknowledges that those conditions were, to some
extent, symptomatic prior to the car accident. However, she submits that the
emphasis should be on the functional change in her life since the accident and
submits that, although she was somewhat symptomatic prior to the accident, she
functioned without any impairment. Ms. Abbott submits that it would be
appropriate to reduce her non-pecuniary damages award by 10 to 20% to reflect
her pre-existing conditions.

[158]     The
defendants submit that $50,000 is a more appropriate award for non-pecuniary
damages in this case. They cite the following cases in support:

(a) Harris v. Zabaras,
2010 BCSC 97 ($50,000); and,

(b) Schmidt
v. Hawkins, 2010 BCSC 1154 ($45,000 reduced by 15% for failure to
mitigate).

The defendants submit that these cases provide better
guidance, because the pain, suffering, and loss of enjoyment of life suffered
by those plaintiffs better corresponds to the pain, suffering, and loss of
enjoyment of life suffered by Ms. Abbott as a result of the car accident
injuries alone (in other words, after factoring in her pre-existing
conditions).

[159]     In my
view, the authorities submitted by Ms. Abbott (particularly Poirier)
are more consistent with the facts underlying her claim than those submitted by
the defendants, before any consideration of Ms. Abbott’s
pre-existing conditions. That is, given the injuries to Ms. Abbott’s neck,
upper back, right arm, and lower back caused by the car accident, and the
impact those injuries have had on her life, a non-pecuniary damages award in
the range of $100,000 would be appropriate, before any consideration is given
to whether there is any measurable risk that Ms. Abbott would have been
detrimentally affected by her pre-existing conditions in any event.

[160]     In MacIntosh,
a reduction of 20% was applied to the award of damages to reflect the
plaintiff’s pre-existing conditions. In that case, the plaintiff had suffered prior
injuries to his back and, among other things, a disc herniation two years
before the accident. However, he was asymptomatic in the period prior to the
accident and led a very active social, business, and physical life that
included strenuous exercise. In contrast, Ms. Abbott’s pre-accident
lifestyle was much more sedentary and her pre-existing conditions were much
more significant, symptomatic, and potentially disabling.

[161]     In my
view, a significantly greater reduction is appropriate in this case. Based on
the medical evidence, particularly that of Dr. DeMarchi and Dr. Sovio,
not only is there a measurable risk that Ms. Abbott’s pre-existing
conditions would have disabled her in the future regardless of the 2008 car
accident and the fall, I am satisfied that this outcome was nearly a certainty.
It is difficult to assess the likely timeframe within which this would have
happened. Dr. DeMarchi’s view is that it would have happened by the time Ms. Abbott
was 60 years old, while Dr. Sovio opined it would have happened sooner. In
my view, Dr. DeMarchi’s opinion is probably optimistic given Ms. Abbott’s
very significant degenerative conditions, the number and type of injuries she
suffered prior to the 2008 car accident, the symptoms she was suffering at the
time of the car accident, and her long-standing obesity and deconditioning. In
my view, it is likely that, by the time she reached the age of 55 to 60, Ms.
Abbott would have been disabled from working and from many of her pre-accident
activities, even if the 2008 car accident and fall had not occurred. This is
her “original position”.

[162]     Considering
all the circumstances, I assess Ms. Abbott’s non-pecuniary damages at
$100,000, but reduced by 50% to ensure that she is only compensated for the
difference between her original and her injured positions. I will address the
question of the apportionment to the defendants due to the Safeway release
later in these reasons.

Loss of income earning capacity

[163]     Both past
and future income loss is properly considered on the basis of loss of earning
capacity: Ibbitson v. Cooper, 2012 BCCA 249, at para. 19.

[164]     The burden
of proof for actual past events is a balance of probabilities. However, the
assessment of loss for both past and future earning capacity also involve the consideration
of hypothetical events. The plaintiff is not required to prove these
hypothetical events on a balance of probabilities; rather, hypothetical events
are given weight according to their relative likelihood. The future or
hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation: Athey, at para. 27;
Morlan v. Barrett, 2012 BCCA 66, at para. 38.

[165]     An award
for loss of earning capacity, whether past or future, requires an assessment that
considers the overall fairness and reasonableness of the award, taking into
account all positive and negative contingencies. It is not a calculation
according to a mathematical formula: Schenker v. Scott, 2014 BCCA 203,
at paras. 50, 53.

[166]     I have
found that Ms. Abbott is permanently disabled from working as a licensed
practical nurse and from any other job, and that she has been so disabled since
the 2008 car accident, as a result of her ongoing neck and back pain caused by
that accident. She is not capable of light-duty work. I have found that the
knee injury suffered by Ms. Abbott in the Safeway fall would have disabled
her from working had she not already been disabled. I have also found that Ms. Abbott
very likely would have become permanently disabled by age 55 to 60 in any
event, even if the 2008 car accident and the fall had not occurred, as a result
of her pre-existing conditions.

[167]     The defendants
submit that Ms. Abbott’s claim for loss of earning capacity should be
limited to the ten months between the 2008 car accident and the Safeway fall,
on the basis that the knee injury she suffered in the fall would have disabled
her in any event. In the alternative, they submit that Ms. Abbott’s claim
for loss of earning capacity should be limited to the period up to March 2010
on the basis that, by that time, Ms. Abbott’s neck pain had returned to
its pre-existing level and her right arm pain was resolved.

[168]     The
defendants’ alternative submission can be dealt with first. I have not found
that Ms. Abbott’s neck pain returned to its pre-existing level by March
2010. Although her right arm pain was largely resolved by that time, I have
found that she continues to be permanently disabled as a result of her neck and
back injuries.

[169]     Turning to
the defendants’ primary submission, they say the Safeway fall is an unrelated
intervening event that the court must take into account and, as Ms. Abbott
would have become disabled in any event due to the knee injury suffered in the
fall, the defendants are only liable for the loss of earning capacity during
the time period between the car accident and the fall.

[170]     I disagree
with this submission. The fundamental, or “dominant”, principle of tort law is
that the injured party should be fully compensated for the loss suffered: Penner
v. Mitchell (1978), 10 A.R. 555 (C.A.), at para. 12. The defendants’
submission is, in the circumstances of this case, inconsistent with that
fundamental principle.

[171]     Ms. Abbott
was completely disabled following the car accident due to the resultant neck and
back injuries. She must be compensated for the loss she has
suffered as a result of the car accident, which includes her inability to work.
It is clear from the evidence of Dr. DeMarchi and Dr. Vaisler that she
would have been disabled from working, as a result of the neck and back
injuries, even if she had not injured her knees in the fall.

[172]     If the divisible
knee injury was found to limit the liability of the defendants for loss of
earning capacity to the time up to the fall, Ms. Abbott would receive less
than full compensation from the two tortious events. There would be a deduction
from the first loss because of the occurrence of the second culpable event, as
well as a deduction from any second claim due to the pre-existing disability
caused by the first culpable event. As noted in Penner, the subsidiary
rules of assessing damages must give way in such circumstances in order to ensure
the dominant principle of tort law is given full effect: Penner, at
paras. 21-26.

[173]     In Penner,
damages were reduced as a result of an intervening non-tortious event (a heart
condition) that was unrelated to the first accident. Though both Penner
and this case deal with unrelated intervening events, in this case, the intervening
event, by agreement of the parties, is assumed to be tortious. Mackenzie J.A.,
for the majority, in Larwill v. Lanham, 2003 BCCA 629, leave to appeal
ref’d [2004] S.C.C.A. No. 23, at paras. 17, 18, 22, confirmed that
the Penner approach continues to apply in specific circumstances
following the decision in Athey.

[174]     Further,
this case involves divisible injuries in that the neck and back injuries on the
one hand and the knee injury on the other are each capable of separate
causation findings and separate damages assessments. As already noted, where an
injury is indivisible, successive tortfeasors are jointly and severally liable
to a plaintiff. For example, in Bradley, the plaintiff sustained similar
injuries in two successive car accidents. In B.P.B., the
respondent sustained severe psychological injury due to physical and emotional
abuse by her father, and was further psychologically impaired by sexual abuse
from others. In both cases, the court held that apportionment of damages
between multiple contributing tortious factors was not the correct approach
where the later injuries were indivisible from the earlier injuries.

[175]     The
situation in Blackwater was more complex. As summarized by Chiasson J.A.
in B.P.B., at para. 38, the Supreme Court of Canada recognized in Blackwater
that the plaintiff was seriously compromised psychologically by a variety
of disorders that arose from a number of causes. The plaintiff had experienced
family difficulties early in life, non-actionable wrongs at residential school,
and actionable sexual assaults (also at residential school). The Court applied
the “crumbling skull” rule, holding that the defendant in Blackwater
need not compensate for the debilitating effects of those earlier traumas
experienced by the plaintiff: Blackwater, at paras. 80, 82; see
also B.P.B., at para. 38.

[176]    
As already noted, the crumbling skull doctrine is applicable here and
the defendants need not compensate Ms. Abbott for the debilitating effects
of her pre-car-accident condition. They are only obliged to return Ms. Abbott
to the condition she was in before the accident took place. As stated by Major
J. in Athey, at para. 32:

It is therefore necessary not
only to determine the plaintiff’s position after the tort but also to assess
what the “original position” would have been. It is the difference between
these positions, the “original position” and the “injured position”, which is
the plaintiff’s loss. In the cases referred to above, the intervening event was
unrelated to the tort and therefore affected the plaintiff’s “original
position”. The net loss was therefore not as great as it might have otherwise
seemed, so damages were reduced to reflect this.

[177]     The cases
that Major J. referred to when he said “[i]n the cases referred to above, the
intervening event was unrelated to the tort and therefore affected the
plaintiff’s ‘original position’”, were cases concerning subsequent non-tortious
events. In this case, as already stated, the intervening event, by agreement of
the parties, is assumed to be tortious. In assessing what Ms. Abbott’s
“original position” would have been, it is necessary to reflect her
pre-existing conditions and any measurable risk that those pre-existing
conditions would have detrimentally affected her in the future. However, for
the reasons expressed above and in Penner, it would be inappropriate to
assess her “original position” on the basis that the knee injury had already
occurred where the knee injury was caused by a subsequent tortious event.

[178]     I have
found that even in the absence of the car accident and the fall, Ms. Abbott
would very likely have become permanently and completely disabled at some point
between the ages of 55 and 60. The hypothetical question of when she would have
become disabled in the absence of the car accident and the fall need not be
proven on a balance of probabilities. Instead, it is given weight according to
its relative likelihood. Having considered all of the evidence, it is my view
that there is virtually a 100% chance that Ms. Abbott would have become
disabled by age 60 and some chance that she would have become disabled by age
55. She was 59 years old at the time of trial.

[179]     In the
circumstances of this case, and bearing in mind the repeated emphasis by the
courts that an award for loss of earning capacity, whether past or future,
requires the assessment of damages that considers the overall fairness and
reasonableness of the award, it is my view that it would be fair and reasonable
to assess Ms. Abbott’s loss of earning capacity as equivalent to the value
of the earnings that she would have made up to the time of trial less an amount
to reflect the contingency that she would have become disabled even earlier
than that. The effect is to award her damages for loss of past earning capacity
but not for loss of future earning capacity on the basis that she has not
established a substantial possibility of future income loss because, even in
the absence of the 2008 car accident and the Safeway fall, it is extremely
unlikely that she would have worked beyond the age of 59: Schenker, at paras. 50-51.

[180]     Ms. Abbott
relied on an expert report prepared by Darren Benning, an economist with PETA
Consultants, which calculated her income loss to the time of trial at $269,874
on a net after-tax basis, assuming she would have worked as a full time
licensed practical nurse from the time of the accident to the time of the trial.
In my view, that amount should be reduced by 15% to reflect the possibility that
she would have become disabled as a result of her pre-existing conditions even
earlier than age 59 and possibly as early as age 55. For these reasons, I
assess Ms. Abbott’s loss of earning capacity at $230,000. I will address
the question of the apportionment to the defendants later in these reasons.

Cost of future care

[181]     The test
for assessing an appropriate award for the cost of future care is an objective
one based on the medical evidence. There must be a medical justification and
the claims must be reasonable: Tsalamandris v. McLeod, 2012 BCCA 239, at
paras. 62-63. Future care costs are justified only if they are both
medically necessary and likely to be incurred by the plaintiff. If the
plaintiff has not used the particular service or item in the past it may be
inappropriate to include its costs in the future care award: O’Connell v.
Yung, 2012 BCCA 57, at paras. 55, 60, 68-70.

[182]     Ms. Abbott
is claiming $25,000 for cost of future care, to cover the cost of attending at
a pain clinic, future physiotherapy, massage therapy, and chiropractic
treatments, a gym membership, and a one-year weight loss program.

[183]     While Ms. Abbott
did attend some physiotherapy sessions after the car accident, she said the
physiotherapy did not help. She has not had any physiotherapy for several
years. She tried acupuncture but said that did not help either. She tried
massage, but only a few times. She went to KARP Rehabilitation in 2010 where
she participated in an exercise program but said it exacerbated her symptoms. She
has had no chiropractic care since 2012, although she said she stopped
attending the chiropractor because she could not afford it. Nevertheless, she
attended 30 sessions of spinal decompression therapy but said it was painful
and of no benefit.

[184]     Dr. DeMarchi’s
report expressly notes that multiple treatment options such as physiotherapy,
massage therapy, and chiropractic care have been tried without success. He
makes no recommendation for the resumption of such treatments.

[185]     Dr. Vaisler
recommended a pain program and an exercise and low-impact fitness program. All
the medical experts recommended that Ms. Abbott lose weight and improve
her fitness level. However, there is no evidence of the cost of a pain program
or an exercise program and, in any event, Ms. Abbott was advised to lose
weight and improve her fitness level years ago and has not been able to do so.
She testified quite emphatically that she has never been inclined to
participate in formal or structured exercise.

[186]     I find
that Ms. Abbott has not established a medical justification for
physiotherapy, massage therapy, or chiropractic care. While there is evidence
of a medical justification for a fitness and weight loss program, I find that Ms. Abbott
is unlikely to participate in any such program. Finally, the cost of a pain
program has not been established. In these circumstances, I make no award for
the cost of future care.

Loss of homemaking capacity

[187]     Ms. Abbott
is claiming $25,000 for loss of homemaking capacity.

[188]     A loss of
homemaking award is properly characterized as an award for loss of capacity,
distinct from a cost of future care claim. An award for loss of homemaking
capacity is intended to reflect the value of the work that would have been done
by the plaintiff but which he or she is incapable of performing due to the
injuries caused by the accident. It is not dependent upon whether replacement
costs are actually incurred: Westbroek v. Brizuela, 2014 BCCA 48, at paras. 72-78.
However, a cautionary approach is to be taken in assessing damages for loss of
homemaking capacity to ensure the award is commensurate with the loss.

[189]     In this
case, the evidence established that before the 2008 car accident, Ms. Abbott
was a meticulous homemaker and she performed approximately 90% of the
homemaking tasks. Since that accident, she performs only about 30% of the
tasks. Her husband and daughter have taken on some of the housekeeping duties,
but some are not being done, at least not to Ms. Abbott’s standards.

[190]     Ms. Abbott
provided no explanation as to the basis for the particular dollar amount she
claimed for loss of homemaking capacity. If calculated at $100 per month, or
$1200 per year, for 16 years, or until Ms. Abbott reached the age of 75,
the award would total $19,200. In my view, this is a reasonable and cautious
amount. For the reasons already given, it is my view that Ms. Abbott would
have suffered similar disabilities by the time she reached the age 55 to 60,
even if the 2008 car accident had not occurred. In the circumstances, as with
the non-pecuniary damages, it is appropriate in my view to reduce the $19,500
by 50% to reflect that contingency. For these reasons, I assess Ms. Abbott’s
claim for loss of homemaking capacity at $9,600. I will address the question of
the apportionment to the defendants due to the Safeway release later in these
reasons.

Loss of future benefits

[191]     After the
accident, Ms. Abbott received sick pay from her sick bank with New Vista.
She later received long-term disability payments from Great West Life. She has
had to make a monthly payment ranging from $165 to $172 to keep her benefits
active. She is claiming the amount required to keep the benefits active from
the time of trial to age 65 ($14,045.40), when her long-term disability
payments will cease. She has claimed the amount paid to continue her health
benefits coverage to the time of trial ($10,992.25) separately, as special
damages.

[192]     For the
reasons already expressed, it is my view that Ms. Abbott was likely to
have become disabled from working by the time of the trial in any event. As
such, her claim for loss of future benefits is denied.

Special damages

[193]     Ms. Abbott
is entitled to recover the reasonable out-of-pocket expenses she incurred as a
result of the car accident. Claims for special damages are subject only to the
standard of reasonableness; however, when expenses are incurred in relation to
treatment aimed at the promotion of a plaintiff’s physical or mental
well-being, evidence of medical justification for the expense is a factor in
determining reasonableness: Redl v. Sellin, 2013 BCSC 581, at para. 55.

[194]     Ms. Abbott’s
total claim for special damages amounts to $28,236. This includes the cost of
medications and supplements, mattress pads, fitness accessories, heating pads,
hot and cold compresses, chiropractic care, physiotherapy, decompression
therapy, and the amount paid to continue her health benefits coverage to the
time of trial. The defendants take issue with only two items: $344.55 for krill
oil and $8,740 for decompression therapy.

[195]     There was
very little evidence led with respect to the reasonableness of Ms. Abbott’s
decision to purchase and take krill oil. There was no evidence of any medical
recommendation that she do so. In the circumstances, I am not persuaded that Ms. Abbott
has met the standard of reasonableness in relation to the krill oil.

[196]     Ms. Abbott
claims for 30 spinal decompression sessions. She testified the pain lessened a
bit as a result of these treatments but the improvement was very short-lived.
She assessed the spinal decompression treatments as having been of no benefit. Ms. Abbott
said that Dr. DeMarchi was aware that she was trying decompression therapy
and did not object. However, there was no evidence that this treatment was
medically recommended. I am not persuaded that Ms. Abbott has met the
standard of reasonableness in relation to the decompression sessions.

[197]     For the
foregoing reasons, I award Ms. Abbott special damages of $19,152, which is
the amount she claimed less the amounts for krill oil and decompression therapy.
I will address the question of the apportionment to the defendants due to the
Safeway release in the next section of these reasons.

Conclusion and Apportionment

[198]     In
summary, I assess Ms. Abbott’s damages, before any apportionment due to
the Safeway release, as follows:

[199]    
As already explained, because of the Safeway release, the parties have taken
the position that it is necessary to apportion these damages to the defendants
in accordance with s. 4(1) of the Negligence Act. In doing so, no
liability is actually being attributed to Safeway, which was not a party to
this action and has been released by Ms. Abbott. The only liability being
determined is that of the defendants.

[200]     Section
4(1) of the Negligence Act applies only to “damage or loss [that] has
been caused by the fault of 2 or more persons”. As such, it applies only to the
indivisible neck and back injuries and not to the divisible right arm injury.
Thus, the first step is to apportion to the defendants an amount to reflect the
damages associated with the injury to Ms. Abbott’s right arm.

[201]     Ms. Abbott’s
right arm injury was largely resolved by March 2010, a little more than two
years after the car accident, whereas the other injuries have persisted. It
does not appear that the arm injury contributed significantly to the special
damages incurred. Certainly, the most significant items of cost in the special
damages claim were the costs of physiotherapy and chiropractic treatments, and
the amount paid by Ms. Abbott to continue her health benefits coverage to
the time of trial. It appears that those amounts would have been incurred in
any event as a result of the neck and back injuries.

[202]     In the two
years following the car accident, the right arm symptoms were, as Ms. Abbott
made clear, excruciating and debilitating. As such, they contributed
significantly to the bases for Ms. Abbott’s non-pecuniary damages, past
loss of earning capacity, and loss of homemaking capacity for that period. In
the circumstances, I apportion 20% of those awards (or $57,920) to the right
arm injury. This leaves $250,832, comprised of $40,000 in non-pecuniary
damages, $184,000 in damages for past loss of earning capacity, $7,680 in
damages for loss of homemaking capacity, and $19,152 in special damages, to be
apportioned in accordance with s. 4(1) of the Negligence Act.

[203]     Apportionment
pursuant to s. 4(1) of the Negligence Act is
based on the degree to which each party is at fault, and not the degree to
which each party’s fault caused the plaintiff’s loss: Cempel v. Harrison Hot
Springs (1997), 43 B.C.L.R. (3d) 219 (C.A.), at para. 19; Cragg v.
Tone, 2006 BCSC 1020, at paras. 178-179, varied on other
grounds, 2007 BCCA 441. This “relative blameworthiness approach” requires an
assessment of the degree to which each of the parties departed from the
expected standard of care.

[204]     The
inquiry is informed by many factors including those referred to in Aberdeen
v. Langley (Township), 2007 BCSC 993, varied on other grounds, 2008 BCCA
420. While these factors do not constitute an exhaustive list, they are of
assistance in apportioning liability in this case. In particular, I note:

·      
the nature of the duty owed by the tortfeasor to the injured
person;

·      
the nature of the conduct held to amount to fault;

·      
the gravity of the risk created; and,

·      
the extent of the opportunity to avoid or prevent the accident or
damage.

[205]     As already
noted, the evidentiary record with respect to the circumstances of the car
accident and the Safeway fall is thin because neither the liability of the
defendants nor of Safeway was directly in issue. The only evidence about the
circumstances of the Safeway fall was from Ms. Abbott. She said she
tripped on a bike that had been left in the shopping cart return area. As
already noted, the circumstances of the car accident are that Ms. Gerges
rear-ended Ms. Abbott’s vehicle, in heavy “stop and go” traffic, while
traveling the speed limit, and that she did not brake before impact. The only
reasonable inference is that she was driving without due care and attention.

[206]     The nature
of the duty owed by one driver to another is similar to the nature of the duty
owed by a store owner to its customers and thus, that factor, in my view,
applies equally to Safeway and the defendants. However, consideration of the
other factors noted above leads me to conclude that the defendants’ degree of
fault is greater than that of Safeway. Safeway’s conduct consisted of failing
to remove a bike from the shopping cart return area. Ms. Gerges’ conduct
consisted of driving a vehicle without due care and attention. In my view, the
gravity of the risk created by Ms. Gerges was greater than that created by
Safeway. As such, the moral blameworthiness of the defendants’ conduct was
greater than that of Safeway’s. Further, while Safeway clearly had a duty to
take reasonable steps to ensure its premises were free from dangers, it was not,
in my view, required to maintain constant surveillance of the cart return area.
In contrast, Ms. Gerges had a duty to be continuously vigilant while
driving. In my view, she had a greater opportunity to avoid the car accident
than Safeway did to avoid the fall.

[207]     Having
considered the above-noted factors, I assess 25% of the liability for the
indivisible injuries to Safeway and 75% of the liability for the indivisible
injuries to the defendants. In the result, the defendants are liable for the
amount attributed to the right arm injury, plus 75% of the balance of the
damages assessed, for a total of $246,044.

[208]     If the
parties are unable to agree on costs, they may speak to that issue.

“Warren
J.”