IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Chabot v. Chaube, |
| 2014 BCSC 300 |
Date: 20140226
Docket: M102775
Registry:
Vancouver
Between:
Jaclyn Melinda Chabot
a.k.a. Jaclyn Lefebvre
Plaintiff
And
Manjula Chaube and
Canadian Road Leasing Company
Defendants
Before:
The Honourable Justice N. Brown
Reasons for Judgment
Counsel for the Plaintiff: | A.A. Vecchio, Q.C. |
Counsel for the Defendants: | M.D. Murphy |
Place and Date of Trial: | Vancouver, B.C. October 28-31, 2013 November 1 and 4-8, |
Place and Date of Judgment: | Vancouver, B.C. February 26, 2014 |
Contents
IV. Overview of facts
related to damages
A. Liponex,
April 2006 to January 2008
B. Breakdown
of September 2005 marriage
V. Post-Accident
investigation
A. At
the scene and UBC Urgent Care Clinic
VI. Return
to Ottawa, overview of employment and medical attendances
A. Early
2009 began work at National Research Council
2. Dr. A.
Daniel, March 19, 2009
3. Dr. J.D.
Ritter, orthopaedic surgeon, May 28, 2010
8. K.
De Jesus-Gauthier April 16, 2012
9. Activities
following surgery
10. Layoffs
at PharmaGap in September 2012
11. July
30, 2013 Dr. D. Simon, orthopaedic surgeon visit
12. April
12, 2013 Position at DNA Genotek
1. Discussion
and findings of adverse inference for failing to call a witness
B. Defendants
position on causation
1. Called
by the plaintiff, Dr. D. Young
2. Called
by the plaintiff, Dr. W.D. Regan.
3. Called
by the defendant, Dr. J. Leith
4. Summary
of conclusions on medical opinions
D. Would
the plaintiff have pursued postgraduate studies without her injuries?
3. Has
the plaintiffs shoulder condition impaired her lab work?
C. Assessment
of the value of the lost earning capacity
1. Economic
and vocational evidence
2. Further
discussion and conclusions, loss of future earnings capacity
2. Discussion
and award for non-pecuniary damages
3. Loss
of homemaking capacity
IX. Summary of damages
awarded
I.
The accident
[1]
On the University of British Columbia campus (UBC), June 13,
2008, around 9:00 a.m., the plaintiff was rollerblading from a parking area where
she had parked her car. She was heading for her campus workplace located on the
west side of Wesbrook Mall. She needed to cross from the east side of Wesbrook
Mall across five lanes of heavy traffic that are controlled by traffic and
pedestrian lights.
[2]
The pedestrian crosswalk for westbound pedestrians signalled that
the plaintiff had the right to cross within the marked crosswalk; north and
south vehicles had to wait.
[3]
The plaintiff skated across the intersection and stayed within the
marked crosswalk boundaries. She safely reached the last north-south lane, a
designated right turn lane. She was still within the crosswalks boundaries when
the left front side of the defendants car struck her.
[4]
The defendant intended to turn right at the intersection, onto
Thunderbird Boulevard. The light was red, but she could make the right turn there
if it was safe to do so.
[5]
Two buses, one in each of the first two southbound lanes,
obstructed the plaintiffs view of vehicles in the designated right turn lane. She
looked straight on as she entered the crosswalk across the designated right
turn lane, but as she moved ahead, managed to catch a glimpse of the
defendants vehicle approaching at her right.
[6]
In what was likely an instinctive protective reaction, she raised
her right arm straight out to her right. The defendants slowly moving car struck
her between its left front tire and the front edge of its fender; the impact
upended her on the cars roof. The defendant applied her brakes, and the
plaintiff ended up on the pavement near the curb.
[7]
The defendant was also employed in the area, and was very
familiar with the intersection and the traffic lights that controlled it.
[8]
The defendant testified she looked right, then left, and then
right again before entering the intersection. She said she did not see the
plaintiff. A bus had stopped at in the lane to her left, but the defendant did
not confirm it impeded her view in that direction.
[9]
She testified she had a clear view of the crosswalk ahead of her.
In fact, she agreed with plaintiffs counsels suggestion that she could see
the crosswalk and anyone in it. But she never noticed the plaintiffs approach.
Her passenger, however, did, and called out too late a warning to the
defendant.
[10]
The defendant testified she stopped at the line, just before the
crosswalk. Presumably, she was referring to the intersections southbound stop
line. She denied she was engaged in a rolling-type stop. Rather, she came to a
full stop and took her foot off the brake. The car slowly rolled forward and over
the crosswalk line nearest the front of her car. At impact, the front quarter
of her car was within the marked crosswalk.
[11]
Photos can be deceptive, but that area of Wesbrook Mall looks
close to level. The photograph negates the likelihood that a motionless small
sedan would roll forward without some propulsion. In other words, the
defendants car did not roll forward. This impression consists with the
evidence of the driver behind the defendant. He testified the defendant did not
stop completely before impact.
[12]
I find the defendant did not come to a complete stop. I also find
she was moving slowly as she entered into the marked crosswalk. The 10 km/h more
or less estimate of the defendants speed offered by the driver behind the
defendant is likely correct.
[13]
The parties debated the plaintiffs speed when she crossed the
intersection. She described her skating pace as a jog and denied suggestions that
she sped across. The driver behind the defendant said he felt the plaintiff was
moving fairly quickly. He never noticed her until just before the collision.
[14]
Estimations of speed based on such a short interval are not as reliable
as estimates based on longer intervals, but the witnesss impression deserves
some weight. I find that as the plaintiff drew near the designated right turn
curb lane her skating pace was equivalent to a fairly brisk jog.
II.
Overview of issues
[15]
The plaintiff says she suffered a right-sided shoulder injury
that has permanently disadvantaged her in her chosen career. She says that
because of it, she can no longer avail her biochemistry education, talents and
work experience. Because she now cannot perform particular lab work essential to
her academic and career advancement, she cannot access financially rewarding
positions and career opportunities previously available to her (she was
pursuing such positions before the accident).
[16]
She also can no longer participate in particular recreational
activities like she could before her injuries. Her shoulder injury makes it
difficult to perform some homemaking activities, and the ones she can are
painful.
[17]
She seeks damages to compensate her for pain and suffering; loss
of amenities and enjoyment of life; past loss of earnings; loss of earning
capacity; costs of future care; and special damages.
[18]
The defendant says the accident, at most, caused transient, minor
suffering and soft tissue injuries. She submits events that occurred after the
accident are likely responsible for the plaintiffs ongoing symptoms. The
defendant further submits the plaintiffs shoulder condition does not prohibit
her from carrying out the activities her planned career requires; or, at least,
not to the degree the plaintiff claims. The defendant contends the plaintiff
exaggerated her limitations, and she points to her participation in
recreational activities that demand shoulder movements similar to what certain
science lab work requires.
[19]
Further, to the extent she has suffered any loss of employment
income, past or prospective, and assuming the accident is a significant cause,
the defendant contends a relatively modest award would fairly compensate her.
[20]
Regarding the plaintiffs claim for past income loss, the
defendant contends that any loss is confined to the period between March 12,
2012 and the start of September 2012. This represents the time between the time
of the plaintiffs shoulder surgery and when she returned to work.
[21]
The defendant submits some of the plaintiffs special damages
claims are unproven.
[22]
Plaintiffs counsel submits these are the main operative
questions in this case:
1) What injuries to the right shoulder did the accident
cause?
2) Were the injuries permanent?
3) Do the injuries impair her
capacity to earn income in her chosen profession as a research scientist?
4) Do the injuries limit her ability
to work in other professions to which her education, training and experience
otherwise qualify her?
5) To what extent and in what way
can the plaintiff mitigate whatever losses the court finds she has sustained?
6) What compensation
do the facts call for?
III.
Liability finding
[23]
The plaintiff asserts the defendant is 100% liable for her
injuries.
[24]
The defendant asserts that if the court finds her liable, the
plaintiff is contributorily negligent, and that she is only 50% liable for any
damages.
[25]
I will refer first to two cases cited by the defendant. First, in
Dionne v. Romanick, 2007 BCSC 436, Gray J. summarized the applicable law
on contributory negligence:
[88] The Supreme Court of Canada set out three pertinent
legal principles in British Columbia Electric Railway Co. v. Farrer,
[1955] S.C.R. 757, [1955] 5 D.L.R. 161, as follows:
(a) When
any contributory negligence is set up as a defence, its existence does not
depend on any duty owed by the injured party to the party sued; what is
required is to establish that the injured party did not, in his or her own
interest, take reasonable care for himself or herself and contributed, by want
of care, to his or her own injury;
(b) Having
the right-of-way does not eliminate the common law duty to use care for one’s
own safety; and
(c) Stepping
from the curb into a crosswalk with the right-of-way without looking in the
direction of a known danger will generally amount to an act of contributory
negligence if an injury results.
[90] The law applicable to pedestrians in crosswalks was
considered by Donald J., when he was a judge of this Court, in Miksch v.
Hambleton, [1990] B.C.J. No. 1810 (S.C.). He explained that the
Supreme Court of Canada, in both Petijevich v. Law, [1969] S.C.R. 257
and Coso v. Poulos, [1969] S.C.R. 757, had decided as follows:
… once a pedestrian has safely
entered a crosswalk, absent any overt negligence such as running or gesturing
that could mislead motorists into thinking they may proceed safely, the
pedestrian may assume that the motorists will yield the right-of-way and will
share no responsibility if struck in the crosswalk.
[92] The burden on the defendant where the plaintiff
pedestrian had the right of way was described by Wallace J.A. as follows in Feng
v. Graham (1988), 25 B.C.L.R. (2d) 116 (C.A.), at p. 120:
In my view the plaintiff in the circumstances of this case
was entitled to assume that the defendant was going to obey the law and yield
the right-of-way to her. Her right to rely on that assumption continued until
such time as she knew, or ought to have known, that the defendant was not going
to grant her the right of way, whereupon the plaintiff’s obligation to avoid
injury to herself superseded her right to exercise her right of way. The onus
is on the defendants to establish that the plaintiff knew, or ought to have
known, that the defendant driver was not going to grant her the right of way,
and that, at that point of time, the plaintiff could reasonably have avoided
the accident.
[26]
A second case relied on by defence counsel is Loewen v.
Bernardi, [1994] B.C.J. No. 1169 (C.A.), where the court addressed a
pedestrians duty at a crosswalk at para.15:
[15]
There is a general duty on a pedestrian to act
constantly and consistently with due care for his or her own safety when
crossing a busy highway, even in a marked crosswalk. I would apply such
judicial technique in this case and come to the same conclusion as did the
trial judge that the pedestrian in this case was to some degree at fault.
[Emphasis added.]
[27]
At trial, the plaintiff was apportioned 25%, but on appeal, the court
reduced the apportionment to 10% because of the pedestrians elderly
disposition.
[28]
Based on these cases, the defendant asserts the plaintiff is 50%
liable for these reasons:
a) the plaintiff
could not clearly see the defendants right hand turning lane as a bus
obstructed it; the plaintiff skated through the crosswalk at a runners pace despite
her inability to see traffic in the lanes on the other side of the bus; and
b) her rollerblades
prevented her from stopping as quickly as she could on foot.
[29]
Turning to other applicable law, in Karran v. Anderson,
2009 BCSC 1105 [Karran], at paras. 106-107, Cohen J. summarized
both the statutory and common law grounds for a contributory negligence
finding:
[106] The Negligence Act, R.S.B.C. 1996, c. 333,
s. 1(1), requires that apportionment of liability must be made on the basis
of "the degree to which each person was at fault". As stated in Cempel
v. Harrison Hot Springs, [1998] 6 W.W.R. 233, 43 B.C.L.R. (3d) 219 at para. 19
(C.A.), the assessment to be made is of degrees of fault, not degrees of
causation, with "fault" meaning blameworthiness. Courts must gauge
the amount by which each proximate and effective causative agent fell short of
the standard of care that was required of that person in all of the
circumstances.
[107] In assessing the respective fault and
blameworthiness of the parties as contemplated in Cempel, courts are to
evaluate the extent or degree to which each party departed from the standard of
care each party owed under the circumstances: Alberta Wheat Pool v.
Northwest Pile Driving Ltd., 2000 BCCA 505 at para. 46. Finch J.A. (as
he then was) described the range of blameworthiness, as follows:
Fault may vary from extremely careless conduct, by which the
party shows a reckless indifference or disregard for the safety of person or
property, whether his own or others, down to a momentary or minor lapse of care
in conduct which, nevertheless, carries with it the risk of foreseeable harm.
[30]
The defendant should not have rolled to a stop and proceed as she
did, considering the traffic, the time of day and the marked crosswalk in front
of her. Her passenger saw the plaintiff and called out a warning.
[31]
As for the plaintiff, once she chose to skate across the
intersection, she should have skated at a pace that slow enough to allow her to
stop as quickly as if she were walking or at most slowly jogging, which is, for
all practical purposes, instantaneously, after allowing a moment to see and
react. In other words, she departed from the standard of care of a reasonable person
in similar circumstances. By skating at a fairly brisk jog, she failed to
exercise sufficient care for her own safety when crossing a busy intersection
during morning rush hour at UBC.
[32]
That finding, however, is not determinative. I must also find the
plaintiffs negligence caused or contributed to her accident and damage: G.H.L.
Fridman, The Law of Torts in Canada, 2nd ed. (Toronto:
Carswell, 2002). I find the plaintiffs action of skating at a brisk jog across
a busy intersection contributed to the cause of the accident, notwithstanding
she had the right of way. She could not adequately see traffic in the right
hand lane. She could not stop as quickly as she could have, had she been
walking or slowly jogging. Had she crossed more slowly, she likely would have
had sufficient time to notice the plaintiff and stop in a timely way.
[33]
This case is distinguishable from cases where a pedestrian who
has the right of way is walking across a crosswalk, their presence blocked by vehicles
in lanes closest to the curb that have come to a complete stop to allow them to
cross. Visibility factors, e.g. darkness and driving rain played no role in
this case. It is not a case where only the exercise of extreme vigilance could
avoid the consequences of the defendants negligence. Coso v Poulos, [1969]
S.C.R. 757. The case is also distinguishable from McKnight v. Nast, 2005
BCSC 469, in which a pedestrian who had stepped into a marked crosswalk on a
walk signal did not see a bicycle approaching at a significant speed against a
red light in a space between three vehicles stopped at the curb. Grist J. found
it would stretch the obligation of reasonable foresight too far to assign
liability to the pedestrian. In this case, the plaintiffs view of traffic in
lanes west of the bus stopped at the intersection was blocked. Foreseeing a
vehicle in the designated right turn lane executing a right turn does not
unreasonably stretch reasonable foresight.
[34]
The plaintiff was not walking. She was travelling considerably
quicker than a pedestrian walking. She does not have to guard against every
conceivable eventuality, or to assume a vehicle in the designated right turn
lane might not respect her right of way. Only, considering the circumstances, to
be more vigilant and to take reasonable precautions for her own safety,
considering she was skating across the intersection, could not see traffic on
the other side of the bus and could not stop as quickly as she could on foot.
[35]
The law does not declare the plaintiff broke the law by skating
across the crosswalk. Cyclists are obligated to dismount when they enter a
crosswalk, see s. 183(1)(b) of the Motor Vehicle Act, R.S.B.C.
1996, c. 318. But the Motor Vehicle Act does not include roller
blades in its definition of cycle, see s. 119(1) cyclist; they are pedestrians.
Further, I appreciate inline skating is a popular way to get around in good
weather. Some road skaters appear very adept and agile skaters. I accept the
plaintiff was an experienced skater and that she knew how to stop properly on
skates. She was not obliged to remove her skates to cross. But having chosen to
skate across the crosswalk, she needed to take reasonable precautions for her
own safety, commensurate with her speed and visibility of traffic beyond the
stopped bus.
[36]
As noted in Karran, fault may vary from extremely
careless conduct, by which the party shows a reckless indifference or disregard
for the safety of person or property, whether his own or others, down to a
momentary or minor lapse of care in conduct which, nevertheless, carries with
it the risk of foreseeable harm. I find the plaintiffs conduct falls within
the range of a momentary or minor lapse of conduct, which nevertheless, carries
with it the risk of foreseeable harm. Based on this finding, and the
circumstance that she was always within a marked crosswalk, I apportion 90% fault
to the defendant and 10% to the plaintiff.
[37]
I will now turn to issues of causation and damages.
IV.
Overview of facts related to damages
[38]
A plaintiffs personal history before an accident is especially important
in a case such as this. Of course, expert medical opinion is indispensable. But
on its own, it cannot answer what caused the plaintiffs symptoms.
[39]
The plaintiff presents the court with an impressive resume that
denotes ambition, accomplishment, strong work ethic, and examples of community
service.
[40]
Her general health before the accident was excellent. She enthusiastically
participated in many sports and recreational activities and was a seasoned
hiker, skier, and rock climber.
[41]
She is now 31. She has two sisters. Her parents, both now in
their 70s, raised the plaintiff and her sisters in a rural district of Ottawa.
They spent most of their free time outdoors. Her sisters say she was the
strongest of the three and had an unusual capacity for strenuous physical activity.
[42]
The plaintiff and her sisters describe a happy family life. The
parents encouraged the girls to be strong, independent and pursuers of
excellence. Religion and values that stressed achievement, education, family,
and service were central. These values remain important to the plaintiff.
[43]
The plaintiff is a high achiever. She excelled at school and assumed
leadership roles. She was athletic, competitive, and physically confident.
[44]
When time came for the plaintiff to choose a university in fall
2001, she selected Carleton University. Intense laboratory work distinguished
Carletons science programs. The plaintiffs grades at Carleton were excellent.
She graduated with honours in Biochemistry in the winter 2006 term. Her honours
project engaged her in all three of those three subcomponents of a research
project. Her A+ grade was, therefore, a significant achievement. When she
graduated, she owned a record of academic performance and experience that
argued for a stellar career in scientific research. Her ambition, excellent
health, physical strength, and other personal qualities served to fortify those
career prospects.
[45]
The plaintiff wanted a career in biochemistry, as opposed to
biology or chemistry, because it encompassed both chemistry and biology. She
believed this would open doors and engage wider fields of study than one more
narrowly focused on chemistry or biology.
[46]
By summer 2005, she realized she should have a part-time position
in the field of biochemical research, which was the career she had decided to
pursue. In July 2005, she left her position at the zoo and found a part-time
position at Health Canada where s. he remained until the end of April
2006.
A.
Liponex, April 2006 to January
2008
[47]
In April 2006, the plaintiff left Health Canada and began working
as a lab technician at Liponex, a company engaged in intensive drug treatment research,
which needed extensive clinical trials. The plaintiffs work engaged almost all
aspects of laboratory analysis and management. She had to work long hours
sitting at a lab bench working with tissue samples.
[48]
The plaintiffs performance exceeded all expectations of her
supervisor, Dr. K. Sokoll. He praised her competence and professional
commitment; both were reflected in a large salary increase. Two years later, Dr. Sokoll
approached the plaintiff and invited her to accept a research position in another
company.
[49]
Some days at Liponex, the plaintiff had to work long days performing
tests at the laminar hood. Use of fine motor skills and intense concentration for
up to eight hours is mentally and physically exhausting. Extended hours of work
at not a recommended norm, according to Dr. Abraham.
[50]
The plaintiff felt exhausted after long hours of lab work at
Liponex. She felt the normal muscle soreness one would expect from it. But I find
that before her accident, she had the good health and stamina needed to
complete successfully all the projects assigned to her at Liponex, including the
long intense hours of lab work required of her.
B.
Breakdown of September 2005
marriage
[51]
In mid-January 2008, the plaintiff and her husband separated. The
marriage had been under strain for some time. The marriages failure is mentionable
only because the marriage breakdown, and the various processes and procedures
that followed, left some emotional scarring that still affected the plaintiff
when the accident occurred, about five months after the divorce.
[52]
In January 2008, Liponex closed and the plaintiff became unemployed.
The plaintiff decided the best way to recover from the effects of her divorce was
to move to a different city.
[53]
She became the successful applicant out of the 50 or so who
applied for a lab technician position at UBC. The lab, headed by Dr. N. Abraham,
conducted advanced research in the fields of microbiology and immunology. He
found the plaintiffs resume impressive.
[54]
Ms. Chabot began working at the lab on May 1, 2008, a month
and one-half before the June 13 accident. Her time there, which ended in the fall,
about five months later, was a difficult period for her. She suffered an
episode of depression that was successfully treated.
[55]
Overall, I find the plaintiff performed well during her time in Dr. Abrahams
lab notwithstanding he was not fully satisfied with the plaintiffs
performance. She was on a learning curve the whole time she remained at Dr. Abrahams
lab. Additionally, she was struggling with the emotional effects of her divorce
and became depressed. So her focus and work performance faltered somewhat. I
will discuss the impact of the accident and her shoulder injuries later in
these reasons.
C.
Finding on credibility
[56]
I found the plaintiff honest and trustworthy. She presented as a
forthright witness. Neither her demeanour nor her testimony conveyed an
impression she intended to mislead. Like most witnesses, her recollection
sometimes fell short related to past events; the accident occurred six years
ago.
[57]
I find the plaintiff the polar opposite of someone who vocalizes
all their aches and pains. Like many athletically minded people, she expects to
experience some aches and pains, but she tolerated them; and if injured, she
strived to recover. She enjoyed physical competition and tolerated considerable
levels of discomfort.
[58]
Some differences arose between the testimony of witnesses called
by the defendant and the plaintiff. I will discuss those differences where needed.
But in whichever instances those differences arise, I did not find the
plaintiffs testimonial integrity shaken.
V.
Post-Accident investigation
A.
At the scene and UBC Urgent Care Clinic
[59]
The plaintiff felt in shock at the scene. Her chief complaint was
that her right arm felt heavy and numb. It tingled. Bystanders assisted her and
one of them walked her to her nearby workplace. She called her boyfriend in
Ontario, Mr. Savard, who encouraged her to attend the nearby UBC hospital,
and she did.
[60]
She then returned to her workplace where she participated briefly
in a staff meeting. Ms. Miners, her supervisor, testified the plaintiff
appeared shaky, but she did not recall the plaintiff mentioning physical
symptoms. Dr. Abraham suggested the plaintiff go home for the day, and she
did.
[61]
The defendant challenged the accuracy of the defendants
description of the symptoms she exhibited during her examination at the UBC Urgent
Care Clinic. The defendant stressed that clinical notes failed to mention
shoulder pain; a silence that the orthopaedic surgeon called by the defendant
opined did not consist with the accident causing the plaintiffs ongoing
shoulder symptoms. I will discuss this further when I come to the medical legal
issues.
[62]
The plaintiff testified she recalled feeling the oddest sensation
in her right arm when she got to her workplace. Her right arm hurt. She
testified she felt a lot of pain in her right arm. She was unsure of the exact
source of pain because she felt pain entire arm felt numb and tingling. She also
noticed external tenderness on one of her right shoulder bones.
[63]
On cross-examination, the plaintiff acknowledged it was possible
she did not mention pain in her right arm when she attended the hospital. She
explained the numbness and tingling scared her and dominated her thinking; she
could have left some sensations out.
[64]
The Urgent Care Clinic at UBC is not a full-fledged emergency
ward. Medical students carried out the initial examination. It was the
students clinical notes that Dr. T. Newton, the physician on call, then reviewed.
He does not have independent recollection of the examination he said he would
have conducted after he reviewed the students notes. The urgent care record
states, in part:
§
complaints of pain in the right hip and of paresthesia in the
right arm;
§
consumption of extra strength Advil at the scene;
§
no bony tenderness in the spine, hips, shoulders, elbows and
limbs;
§
follow-up recommended was ibuprofen for pain and physiotherapy; and
§
in the section headed pressing complaint, the admitting nurse
noted, in part, that the right arm feels heavy.
[65]
Dr. Newton testified that per usual practice he would have
conducted upper extremity testing that would have included lifting the patients
arms and rotating the shoulders in a variety of directions against resistance.
He said that had he found signs of weakness or instability, he would have
ordered x-rays. He did not order any after the initial exam.
[66]
The defendant also points out that the Urgent Care Clinics notes
contain no mention of the injury mechanism the plaintiff described to the court
as well as to other physicians when they examined her i.e., stretching her right
arm straight out to absorb impact with the defendants car.
[67]
The plaintiffs theory is that this position transmits axial
forces to the shoulder joint and its supporting tissue; indeed, the plaintiff
argues it fully explains the plaintiffs shoulder injury, and the symptoms she
experienced.
[68]
The plaintiff called two orthopaedic surgeons, one treating, and the
other independently examining her. Both accept that she could have been injured
by stretching her arm out.
[69]
I find no significance in the fact that the clinical notes lack
mention about the mechanism of injury. The plaintiff testified that her one
memory of the accident that stands out is the outstretched right arm before the
impact.
[70]
Consequently, I find the plaintiffs right arm was outstretched
to absorb the impact and became subject to axial forces at impact.
[71]
I accept the comments of the orthopaedic surgeons the plaintiff
called; they said that when emergency room physicians examine a patient, they focus
on fractures and the presence of an acute injury that requires emergent care. They
examine and keep notes mostly with this purpose front of mind.
[72]
In Edmondson v. Payer, 2011 BCSC 118, Smith J.
noted at para. 36 that the lack of mentioning a symptom in a clinical
record cannot become the sole basis for inferences about the existence or non-existence
of an injury. This applies to all clinical notes.
[73]
The plaintiffs vocalizing shoulder pain during the Urgent Care
examination is not essential to the diagnoses of either Dr. Regan or Dr. Young,
the two orthopaedic surgeons the plaintiff called. I accept their opinions that
a patients sensations of heaviness, numbness, and tingling in the shoulder are
a classic presentation following an axially loaded shoulder injury (i.e., the
force transmitted up to the arm to the shoulder). Pain is sometimes immediately
present, but often it is not. They opined that a lack of immediate pain does
not invalidate a finding that the forces applied to her shoulder in the accident
are the cause of the plaintiffs ongoing shoulder complaints.
[74]
The plaintiff explained that the impact hurt her wrist and elbows
and her right arm, which felt numb. So the pain sources were not immediately
obvious to her. The wrist and elbow pain were short lived, but her shoulder symptoms
persisted.
[75]
She acknowledged that due to shock, she might have failed to
mention all her symptoms in the Urgent Care Clinic.
[76]
In summary, I find the Urgent Care Clinics notes silence
regarding specific pain complaints do not weaken the plaintiffs case on
causation. I will focus more generally on the causation issue again later in
these reasons.
B.
Days and weeks following
[77]
The plaintiffs right shoulder numbness and tingling subsided the
next day. She was sore where her body had hit the ground. She recalled migraine
pattern headaches and some difficulty sleeping for some time.
[78]
She experienced temporary aggravation of a sciatica condition she
developed following a January 2008 snowboarding injury. She had not recovered from
the condition completely when the accident occurred. A couple of weeks later, she
recovered enough to enjoy ten days of snowboarding. Following the accident, however,
the sciatic symptoms persisted for a prolonged period. This caused her some
difficulty when she had to sit for a long-time or walk long distances, but it did
not continue to figure significantly in her life.
[79]
Her right shoulder continued to bother her. The outside bone felt
tender, and the middle of the internal joint painful. This acute pain lasted
for about a month, and then it gradually subsided. Certain activities continued
to cause sharp shoulder pain.
[80]
The plaintiff expected her shoulder to heal without treatment and
to return to its prior healthy symptomless condition. But the sharp pains
caused her to make an appointment with Dr. P. Iriarte in Vancouver for
September 8, 2008.
[81]
Dr. Iriarte testified. She recorded the plaintiffs
description of the mechanism of injury: the impact against her outstretched
right arm. The plaintiff complained of right shoulder pain since the accident.
She was unable to play volleyball. She prescribed anti-inflammatory medication
and physiotherapy. The plaintiff did not arrange physiotherapy until after her
return to Ontario, in November 2008.
[82]
On September 24, 2008, Dr. Iriarte noted that the plaintiff
was still experiencing mild pain that was exacerbated by certain activities. She
took Naproxen for pain control. She was still noting pain down her leg after a
two-hour walk or after sitting for more than two hours. She reported she could
live with it.
[83]
The defendant drew attention to Dr. Iriartes note regarding
motorcycling:
Tried to drive a motorbike and
post R shoulder pain exacerbated, also felt that R shoulder popped with ROM R
shoulder.
[84]
The defendant stressed the plaintiffs mention of her shoulder popping.
Counsel contends this evidences a shoulder dislocation or other discreet right
shoulder injury during a motorcycle ride she had taken to Horseshoe Bay with two
acquaintances. The plaintiff, who enjoyed motorcycles and was an experienced
rider, denied this contention.
[85]
Dr. Iriartes testimony did not assist the defendants
theory. She explained the plaintiff complained that her shoulder bothered her
during the ride, but otherwise said nothing that would lead her to conclude she
had dislocated it or that the jostling caused an injury. Moreover, she did not
recall the plaintiff telling her that it had popped on the ride.
[86]
Dr. Iriarte also noted that the plaintiff was suffering from
stress and anxiety related to separation from her husband.
[87]
Dr. Iriarte recorded shoulder examination results as normal.
[88]
The October 8, 2008 and October 14, 2008 visits shifted focus to
the plaintiffs mood disorder, which had improved by the second visit. The
plaintiff reported difficulties coping with work. After she returned to Ottawa,
she sought psychological and psychiatric counselling.
[89]
I find the plaintiffs emotional problems at the time were
situational and not representative of an underlying condition that would
diminish her long-term career prospects. Except for some of the time she worked
at Dr. Abrahams lab, that characteristic has not adversely affected her
work. At trial, she described her mental state as excellent.
[90]
Additionally, I find no link between the plaintiffs depressive
episodes with her slightly more than average tendency to experience mood swings
and her shoulder symptoms.
C.
Work with Dr. N. Abraham
[91]
Dr. N. Abraham, head of the UBC Life Sciences Lab, where the
plaintiff worked between May and October 2008; and Ms. M.J. Miners, his
supervising lab technician, testified.
[92]
As mentioned, the plaintiffs credentials impressed Dr. Abraham,
but after three months, he found her performance fell somewhat short of
expectations.
[93]
I find that the distractions of personal matters relating to her
marital separation and emotional stress partly explain her performance; both Dr. Abraham
and Ms. Miners agreed the plaintiffs personal concerns adversely affected
her performance.
[94]
I also note that Ms. Miners was Dr. Alexanders comparator
for measuring the plaintiffs performance. She had five years experience
working as a lab technician for Dr. Abraham, and he characterized her
performance as outstanding.
[95]
The plaintiff had worked barely three months when Dr. Abraham
reviewed her performance, in August 2008. The plaintiff acknowledged she was
still on a learning curve, and Dr. Abrahams performance expectations at
that stage were likely somewhat unrealistic.
[96]
Even so, both Dr. Abraham and Ms. Miners spoke well of Ms. Chabot.
Dr. Abraham thought she had some excellent skills that he liked. They
agreed she responded well to correction.
[97]
The plaintiffs duties split equally between experimental lab
work, lab management, and ensuring the good health of the mouse colony used for
experimental research.
[98]
Dr. Abraham recalled the plaintiff did not perform much lab
work, perhaps only 10 hours in a week, and only a portion of that work was
under the laminar hood. Remaining lab work was done on an open bench, a less confining
work space, one that allowed technicians to rest their elbows on the work
surface. In his lab, technicians spend 30 minutes to an hour at a time
performing lab work. In the little time he did see the plaintiff at work in the
three months she worked in the lab, he did not recall her complaining of
physical problems.
[99]
Ms. Miner testified the plaintiff was a capable and
competent scientist. I will comment further on her evidence when I discuss loss
of earning capacity.
VI.
Return to Ottawa, overview of employment and medical
attendances
[100]
In October 2008, the plaintiff returned to Ottawa. She spent some
time in a religious community to re-centre herself. Shoulder pain limited her
participation in some maintenance activities that visitors in the community usually
undertook.
A.
Early 2009 began work at National
Research Council
[101]
In 2009, about two months after returning from Vancouver, the
plaintiff found a position as technical level II at the National Research
Council. She performed neuroimmunological studies for Alzheimer and Parkinsons
research.
[102]
The work was relatively flexible. It was neither heavy nor
repetitive. Certain activities and positions continued to trouble her shoulder.
She remained at the NRC until August 2010, when Dr. Sokoll offered her a
position at PharmaGap Inc. (PharmaGap).
1. Dr. M.J. Adetola, 2009
[103]
Dr. M.J. Adetola became her family physician in Ottawa. She arranged
referrals for imaging and a sports therapy specialist, but it took considerable
time to secure a date. The physiotherapy she attended did not bring lasting
relief.
2. Dr. A. Daniel, March 19, 2009
[104]
On March 19, 2009, the plaintiff saw Dr. A. Daniel in a
sports therapy clinic. She reported the pain had almost resolved, but it had briefly
increased in November 2008. Dr. Daniel noted a normal shoulder exam, and
he referred her to physiotherapy for a rotator cuff strain and for bicipital
tendinosis.
[105]
Between June 15, 2009 and August 25, 2009, she had 15
physiotherapy treatments, but did not improve. A February 25, 2010 MRI returned
normal results.
3. Dr. J.D. Ritter, orthopaedic surgeon, May 28,
2010
[106] On May
28, 2010, the plaintiff complained to Dr. J.D. Ritter of painful abduction
of her right shoulder (moving it away from the body on a vertical plane).His
examination did not reveal anything. He ordered an MRI with contrast.
4. PharmaGap, August 2010
[107]
In August 2010, Dr. K. Sokoll, the plaintiffs supervisor during
her former position at Liponex, offered her a position at a pharmaceutical
research company called PharmaGap. The plaintiff received an annual salary of
$65,000, a $22,000 annual increase over what she had been earning at her
previous position at the NRC. Her salary later increased to $85,000 to reflect the
level of her responsibilities and performance. After Dr. Sokoll became
aware of the plaintiffs shoulder problem, he granted accommodations. The
details of the accommodations were not given, but I find additional staff was hired
to partly ease the plaintiffs workload in the laboratory.
[108]
The plaintiff characterized her position at PharmaGap as a junior
scientist. This title is somewhat debatable, but as Dr. Sokoll noted, not
particularly relevant, as it is the nature of the required work that is
significant. A technician with a Masters or doctorate degree would usually have
been doing what the plaintiff did at PharmaGap. She conducted research,
designed lab work, managed the lab studies, and performed lab work. Her work
demands and responsibilities grew between 2010 and 2011. To help her meet the increased
workload, PharmaGap hired additional staff. The plaintiff had been managing to
perform her at PharmaGap work, but her shoulder gradually worsened, in
particular, when she conducted lab experiments.
5. Nov. 1, 2010 MRI
[109] The
MRI, with contrast, ordered by Dr. Ritter and conducted on November 1,
2010 reported a:
[h]igh-grade partial thickness
tear involving the posterior aspect of the supraspinatus and the conjoined
tendon associated with intrasubstance delamination and a tiny full-thickness
fissure [which] results in a small amount of [leaking of fluid] in the subdeltoid
subacromial bursa. [Edited slightly for clarity.]
[110] Dr. Ritter
concluded the plaintiff suffered a small rotator cuff tear and a glenoid labral
tear (The glenoid is the socket which encases the arms humeral head. The labral
tear refers to connected soft tissue that lines the glenoid).
[111] He
opined that a dislocation of the plaintiffs right shoulder caused these
symptoms:
It has been two years since the accident and pain continues.
This is likely to be the cause [sic]. It may be possible to reduce or
eliminate through possible surgery.
At the time of my last
examination there was no impairment of motion but ongoing pain and discomfort
with specific activities involving vigorous shoulder use.
[112]
Dr. Ritter referred the plaintiff to Dr. D. Young, an
orthopaedic surgeon.
[113]
By August 2011, the plaintiff felt she had reached a plateau. Her
range of motion was fairly good and improving, but repetitive extended arm
motions were difficult.
6. Dr. D. Young
[114]
On July 9, 2012, the plaintiff saw Dr. Young for her first
consultation. The plaintiffs pain located mostly at the front of shoulder. In
the previous three years, the pain had occasionally radiated down the right arm.
He noted preservation of her range of motion; and, on rotator cuff testing,
good power. He also noted she had positive signs of impingement and labral
pathology. He recommended surgery to address the rotator cuff pathology and
labral tear. He thought both issues accorded with the mechanism of the
plaintiffs injury: landing on her outstretched hand with axial loading to the
shoulder.
7. March 21, 2012 surgery
[115] On
his August 14, 2012, follow up with the plaintiff, four months after the March
21, 2012 surgery, Dr. Young noted the plaintiff remained symptomatic, but
she had improved.
[116]
Residual somewhat painful crepitation occurred when she reached
out with her arm. His examination again revealed full pain free range of motion
and good rotator cuff strength. Some impingement signs had been eliminated. He
noticed crepitation in the joint, deep and hard to find. The plaintiff reported
she still found it hard to extend her arms at shoulder height when she did
laboratory work. He thought her rotator cuff tendinopathy would continue to
cause symptoms.
8. K. De Jesus-Gauthier April 16, 2012
[117]
The plaintiff followed a course of physiotherapy after her
surgery with Ms. K. De Jesus-Gauthier, a certified athletic therapist, who
since 2004, has specialized in physical therapy aimed at returning patients to
work. She first saw the plaintiff on April 16, 2012, twice weekly initially.
Treatments, which eventually totalled 37, gradually tapered to twice a month. Ms. De
Jesus-Gauthier noted pain at the end of motion and limited tolerance for
motions that mimicked lab work conducted under the laminar hood. She found the
plaintiff compliant in therapy. She noted the plaintiff expressed a passion for
science and wished to return to lab work.
9. Activities following surgery
[118]
Post-surgery, the plaintiff wore a sling for two to three weeks. Within
a month, she was able to go on a three-hour walking hike, but she supported her
arm the whole time. By the end of May, she could jog for ten minutes or so, and
then walk. By June, she was able to drive with some difficulty.
[119]
She had always enjoyed throwing a football. In mid-July, she
tried to throw one, not as hard as she normally would do, and experienced
discomfort.
[120]
She did some painting in the Ottawa rental property she had
purchased before she moved to Vancouver. Her former boyfriend, Mr. Savard,
helped. She was able to paint some kitchen cabinets after they were removed and
laid flat on a bench. She did not recall painting walls. Mr. Savard
recalled that sometime before the plaintiffs surgery, they jointly painted the
walls of a small room in the house.
[121]
By August 2012, the plaintiff could incorporate modified push-ups
into her strengthening program.
10. Layoffs at PharmaGap in September 2012
[122]
PharmaGap ceased all operations by early January 2013. Most staff
members were laid off in September 2012, but I find the plaintiff continued on
a part-time basis until shortly before the offices and lab were vacated. The
plaintiff looked for a new position. She hoped to find one that would allow her
to leverage her extensive background in laboratory work, but she bypassed any
position that entailed lab work. The plaintiff believed that her shoulder was
limiting the range of positions she could seek.
[123]
Counsel questioned her closely about resumes the plaintiff sent to
prospective employers. The resumes contained comments that extolled her lab
experience. Counsel suggested she had not limited the range of employment she
was seeking because she did not have any limitations.
[124]
The plaintiff conceded that some of the resumes did not note her lab
work limitations and that she could have been clear about this. But she
explained she intended to emphasize her lab experience, which she still
hoped to make good use of, and that she would have to clarify her limitations
at the appropriate time if necessary.
[125]
In June 2013, she found a position with DNA Genotek, one that accommodated
her limitations.
11. July 30, 2013 Dr. D. Simon, orthopaedic surgeon
visit
[126]
On July 30, 2013, the plaintiff saw for the first time Dr. D.
Simon, an orthopaedic surgeon with a sub speciality in reconstructive sports
medicine. His findings and clinical impressions reflect those of Dr. Regan
(who conducted an independent orthopaedic assessment of the plaintiff at
plaintiff counsels request).
[127]
Dr. Simon carried out a pain ablation study to see if
injecting a local anaesthetic, combined with Epinephrine, into the head of the
biceps tendon would relieve the plaintiffs symptoms, which had persisted since
her March 2012 surgery. The injections provided immediate but not lasting relief.
Dr. Simon suggested that a series of injections at a cost of $275 could settle
irritation. If not, he suggested further arthroscopic surgery as the most
appropriate alternative procedure. The plaintiffs symptoms then returned to her
pre-injection baseline. She is still considering the possibility of further
injections and surgery, neither option is assured of success.
[128]
Neither Dr. Youngs nor Dr. Ritters reports say much
about how the plaintiff might progress with further injections and surgery. Six
is the maximum recommended number of injections. More could be harmful. Another
alternative described by Dr. Regan was to cut the bicep and reattach it
away from the diseased area. Dr. Regan explained this is a popular
procedure in Europe. Outcomes are speculative and measured in shades of grey,
according to him. A years rehabilitation would be required.
[129]
Dr. Young stated in his December 18, 2012 report he was
concerned about pathology in the plaintiffs rotator cuff, which he opined
faced a 50% likelihood of future worsening. Dr. Regan, however, opined the
plaintiffs pain came more likely from the anterior capsule, not from the
rotator cuff, because Dr. Simons injections had temporarily ablated the
pain over the plaintiffs biceps tendon and failed to localize rotator cuff
pain.
[130]
Asked what he meant by his statement on p. 5 of his May 15,
2013 report that the plaintiffs prognosis remained guarded, he said that
surgery might help a little, but that the plaintiff faced a long-term
disability.
12. April 12, 2013 Position at DNA Genotek
[131]
On April 12, 2013, the plaintiff started to work at DNA Genotek. She
took DNA samples from clients, but did not perform other types of lab work. She
worked in sales. She receives a base salary plus a percentage of sales.
VII.
Causation of damages
A.
Legal principles
[132] The
but for test, as stated in Resurfice Corp. v. Hanke, 2007 SCC 7, applies
in this case:
[23] The but for test
recognizes that compensation for negligent conduct should only be made where a
substantial connection between the injury and the defendants conduct is
present. It ensures that a defendant will not be held liable for the
plaintiffs injuries where they may very well be due to factors unconnected to
the defendant and not the fault of anyone: Snell v. Farrell, at
p. 327, per Sopinka J.
[133] In
the recent case of Gonzales v. Voskakis, 2013 BCSC 215, Fitzpatrick J.
concisely summarized the test:
[188] The plaintiff must establish, on a balance of
probabilities, that the defendants negligence caused or materially contributed
to an injury. The defendants negligence need not be the sole cause of the
injury so long as it is part of the cause beyond the de minimis range.
Causation need not be determined by scientific precision: Athey v. Leonati,
[1996] 3 S.C.R. 458 at paras. 13-17.
[189] The primary test for causation asks: but for the
defendants negligence, would the plaintiff have suffered the injury? The but
for test recognizes that compensation for negligent conduct should only be
made where a substantial connection between the injury and the defendants
conduct is present: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-23.
[190] In special
circumstances, where the but for test proves unworkable, the court may apply
a material contribution test.
[134]
The but for test is not unworkable in this case. There is no
need to resort to the material contribution test.
[135]
The mere fact the plaintiff complained of shoulder problems after
the accident does not mean the accident caused them. Temporal connections are
not determinative or reliable: White v. Stonestreet, 2006 BCSC 801, paras. 74-75.
To determine cause, all the evidence related to her shoulder symptoms injury must
be considered, both individually and in its totality, to establish causation.
The temporal sequence is part of the evidence, but it must be considered
critically.
1. Discussion and findings of adverse inference for
failing to call a witness
[136] The
court heard testimony from some family members and friends, but not from her
very good friend, Ms. Sophia Ribchinsky, who happened to be the organizer
of various recreational activities the plaintiff participated in, such as
volleyball. They have kept in touch since the accident. The defendant, therefore,
submits I ought to draw an adverse inference. The defendant pointed the court
to Buksh v. Miles, 2008 BCCA 318 at para. 30 [Buksh]:
[30] The notion of adverse inference is related to the
best evidence rule. The observation in Wigmores Evidence in Trials at
Common Law, Chadbourne Rev. (Toronto & Boston: Little Brown & Company:
1979) vol. II, s. 287, at 202-3, offers valuable guidance:
Furthermore, it seems plain that
possible witnesses whose testimony would be for any reason comparatively unimportant,
or cumulative, or inferior to what is already utilized, might
well be dispensed with by a party on general grounds of expense and
inconvenience, without any apprehension as to the tenor of their testimony. In
other words, put somewhat more strongly, there is a general limitation
(depending for its application on the facts of each case) that the inference
cannot fairly be drawn except from the non-production of witnesses whose
testimony would be superior in respect to the fact to be proved.
[Emphasis in original.]
[137] In McIlvenna
v. Viebig, 2012 BCSC 218, Sigurdson J. referred to the summary referred to
in Canadian Encyclopedic Digest, CED (West. 4th), vol. 26, title 61 at
para 71. The editors noted that more contemporary liberal disclosure rules have
given parties equal opportunities to call witnesses who might assist their litigation
position. The existence of disclosure rule changes have encouraged judges to
move away from the idea that they ought to draw an adverse inference against a
party who had failed to call a witness who might know relevant facts. At
s. 200, the CED
editors noted that the drawing of an adverse inference is discretionary unless all
the circumstances warrant it. The editors summarized:
In particular, the judge should consider whether: there is
a legitimate explanation for failing to call the witness; the witness is within
the exclusive control of the party or is equally available to both parties; and
the witness has key evidence to provide or is the best person to provide the
evidence in question. In a case before a jury, the trial judge should charge
the jury that it is appropriate to infer that a failure to call material
evidence uniquely available to a party was an indication that such evidence
would not have been favourable to that party, but that jurors are not obliged
to draw such an inference.
[Emphasis removed.]
[138]
At para. 32 of Buksh, Saunders J.A. commented that
the tactic of asking for an adverse inference was being much overused in
todays legal environment, and that the inference, requires, at the least, a
threshold examination by the trial judge before such an instruction is given to
the jury.
[139]
In Buksh, the court was dealing with a medical witness who
provided clinical records. The question was whether the plaintiff ought to have
called them. At para. 35, the court mentions these factors: the evidence
before the court; proffered explanations for not calling the witness; and the
nature of the evidence they could give.
[140]
I do not think it makes much difference whether the plaintiffs
counsel knew the other side intended to raise the issue. The defendant examined
the plaintiff for discovery. The witnesss identity was not a mystery. The
defendant could have sought an interview, but this alone does not negate the
drawing of an adverse witness.
[141]
Because the witness was close to the plaintiff and had organized
recreational activities the plaintiff participated in, conceivably she could
give relevant evidence on the nature and extent of the plaintiffs activities,
how often she participated in them, and any limitations she might have noticed.
The plaintiff does not deny she has participated in some recreational
activities, but testified she did so in a more limited fashion than before the
accident; and that some she had given up. She also explained that certain
shoulder movements hurt. The defendants called a former boyfriend, who
testified about recreational activities he had engaged in with the plaintiff
after the accident. Investigators retained by the defendant took videos of the
plaintiff playing beach volleyball on August 22, 2013 (T. Oct. 31, 2013,
p. 63, l. 7). That video consists completely with the plaintiffs
description of the nature and extent of her participation in beach volleyball.
[142]
Plaintiffs counsel advised he had not foreseen the possibility
of the defendant asking the court to draw adverse inferences coming into play
and had decided it was not necessary to call the witness.
[143]
While Ms. Ribchinsky likely could have testified regarding
the plaintiffs physical abilities before and after the accident and surgery, I
cannot find her evidence necessarily would be superior to other similar
evidence. The plaintiff spent much recreational time with her former boyfriend
and the defendant extensively cross-examined her on the subject.
[144]
The evidence on this question must be viewed as a whole not piecemeal.
[145]
I decline to draw an adverse inference regarding the nature and
extent of the plaintiffs physical limitations in recreational activities so as
to conclude Ms. Ribchinskys evidence likely would have been detrimental
to the plaintiffs case.
B.
Defendants position on causation
[146]
The defendant submits the plaintiff failed to prove that the
accident caused her alleged pain and disability. The defendant bases this position
chiefly on the following:
1) The factual assumptions and opinions of orthopaedic surgeon Dr. J.
Leith;
2) Alleged evidentiary inconsistencies:
a) between
the plaintiffs claimed symptoms at the UBC Urgent Care Clinic and the clinical
records kept and observations made;
b) between
injuries alleged and her delay in seeking medical advice;
c) between
the plaintiffs claims and her having continued to work at the UBC Life
Sciences Lab following the accident; and
d) between
her claimed injuries and her ability to participate in some recreational
activities before she left for Ottawa and in Ottawa;
[147]
The defendant also points to:
e) her
failure while to mention shoulder problems to her former Ontario boyfriend when
she was still living in Vancouver;
f)
complaints of clicking in the shoulder following a motorcycle ride around
August 2008; and
g) the plaintiffs continued
participation in recreational activities after returning to Ottawa.
[148]
I disposed earlier of alleged inconsistencies between the
plaintiffs reporting at the UBC Urgent Care Clinic. I further found the
plaintiffs presentation in the UBC Urgent Care Clinic was consistent with a
shoulder injury caused by the axial loading of force into the shoulder.
Delay
in seeking medical advice
[149] The
defendant also submits the plaintiffs failure to seek further medical
treatment earlier than she did; and not to have done so until only after she sought
advice of counsel, calls into question the reliability of her descriptions of
symptoms following accident.
[150] The
presence of gaps between a plaintiffs medical visits alone does not alone
logically insinuate absence of injury, resolution, or their significance: Fontaine
v. Van Kampen, 2013 BCSC 1702.
[151] The
plaintiff is not prone to complaining about physical aches and pains. She
expected to recover from her shoulder injury and she had experienced some
improvement. Her symptoms continued longer than expected, and certain movements
of her shoulder increased her pain. I see nothing necessarily suspect in a
young and athletically minded young person waiting a while before seeking
further medical advice when they are expecting to recover.
[152] Further,
considering the evidence as a whole, I see no reason for concern that the
plaintiff spoke to a lawyer about the accident before she saw Dr. Iriarte about
her injury. Nor do I see reason for concern from the fact a lawyer made the
referral, especially considering she was from Ontario and had not enlisted a
family physician in Vancouver.
Inconsistency
between the plaintiffs work capacity at the
UBC
Life Sciences Lab and her ability to continue work
[153] The
defendant submits the evidence of Dr. Abraham and Ms. Miners about
the plaintiffs work performance after the accident indicate the plaintiff did
not suffer more than a transient shoulder injury, casting doubt on the medical
opinions of Dr. Regan and Dr. Young.
[154] Ms. Miners
recalled the plaintiff was in shock the day of the accident. Thereafter, neither
she nor Dr. Abraham noticed the plaintiff experiencing physical problems
performing her work. Neither do they recall the plaintiff discussing physical
problems. Further, when Dr. Abraham conducted a performance review, she
did not attribute any performance shortcomings to shoulder pain. The plaintiff
granted she was able to complete all her duties at work albeit with some
discomfort. She, therefore, did not request accommodations. Dr. Abraham
did not see much of the plaintiff at work, and only a small portion of work consisted
of lab work similar to what she performed at Liponex and PharmaGap.
[155]
I find the plaintiff performed much less lab work in the UBC lab
than she did at Liponex or at her next technician position at PharmaGap. Moreover,
as discussed earlier, she performed most of her UBC lab work at an open lab
bench, which was less constraining. Further, the plaintiff never claimed that
she experienced constant disabling pain, or that her shoulder injury prevented her
from carrying out her duties. Neither did she claim she left her position at
the Life Science Centre and returned to Ottawa because of the accident, and for
the period preceding, she has not claimed loss of any income.
[156]
The plaintiff expected her shoulder symptoms to go away
eventually. Although they remained, she experienced initial improvement. As for
whether any of the points undercut the opinions of Dr. Young and Dr. Regan,
I disagree. I will elaborate when I turn to their opinions.
Alleged injury from motorcycle ride
[157] I
found no force in the defence submission that the plaintiff somehow injured
herself when she went on a motorcycle ride to Horseshoe Bay with two friends in
late August. As earlier discussed, Dr. Iriarte had no note or recollection
of the plaintiff saying she had dislocated her shoulder or injured it following
a motorcycle ride.
No mention to Mr. Savard of shoulder pain on phone
[158] Mr. Savard,
her long distance former Ontario boyfriend, testified he did not recall the
plaintiffs mentioning shoulder pain during any of their frequent long distance
calls when she was in Vancouver and he was in Ontario. Such conversations would
have occurred over five years ago. Mr. Savards recollection of details is
bound to be somewhat sketchy at this stage. Further, the plaintiffs emotional
difficulties had become a preoccupation. I do not find her lack of mentioning
it dispositive of a lack of pain or injury.
Participation in recreational activities between accident and return to
Ottawa
[159] In
July 2008, the plaintiff went to Squamish with two acquaintances for an overnight
trail hike up to the first base of Black Tusk. She purchased a backpack with a
type of harness that fastened at the hip and reduced pressure on her shoulder.
Although she could not swing her arms normally, otherwise, she could walk
without difficulty. In August 2008, she went on a similar two-day hike with her
parents that required her to carry her backpack.
[160] In
late October or early November 2008, just before the plaintiff left for Ottawa,
she drove with three other acquaintances to Tofino for a weekend of camping. I
accept her evidence that while there, she donned a wetsuit to try surfing. She
managed to paddle out, briefly surfed, and gave it up.
[161]
I find the recreational activities the plaintiff engaged in while
still in Vancouver do not belie the shoulder injuries Dr. Young and Dr. Regan
identified.
[162]
I note the plaintiff experienced a popping sound in her right
shoulder when she threw a football the summer following her return to Ottawa. I
find this did not cause her shoulder injury; the accident caused it. I accept
the view of Dr. Regan that a person with a shoulder condition, such as the
plaintiff has, can be prone to further exacerbations. Although some activities
could exacerbate pain, I do not find any other such event precipitated the
plaintiffs shoulder condition.
[163]
The plaintiff did not claim she experienced a level of pain or
disability that would make such activities inconsistent with the nature and
extent of shoulder injury she has alleged. She experienced discomfort and
limitations that did not prevent her from participating in, or attempting to participate
in, some recreational activities, albeit with some discomfort and limitation.
Ottawa recreational activities
[164]
Between the plaintiffs return and her March 2012 surgery, she
participated in dodge ball, rollerblading, volleyball, snowboarding, kayaking,
surfing, and some other activities.
C.
Medical Opinion
1. Called by the plaintiff, Dr. D. Young
[165]
Dr. D. Young has been an orthopaedic surgeon since 2008. Since
then, he has specialized in shoulder and upper extremity surgery. He performed
the March 2012 shoulder surgery. His first consultation with the plaintiff was
on February 24, 2011. He prepared four reports: April 11, 2011; December 18,
2012; an addendum dated June 18, 2013; and further addendum, dated September
12, 2013, which is essentially a report in rebuttal to Dr. J. Leiths July
19, 2013 opinion.
[166]
Dr. Young testified and was cross-examined.
[167] Regarding
causation, he stated at p. 2, of his December 18, 2012 report:
The mechanism of injury including
the fall on her outstretched arm and axial load injury to her shoulder would be
a potential mechanism of injury causing both labral tears and the rotator cuff
pathology. It is likely that her ongoing symptoms are still related to these
underlying pathologies. In a certain subset of patients there will be
persisting symptoms despite surgical management of these conditions. These may
be present permanently and may represent a chronic disability.
[168] When
asked whether the plaintiff is at risk for future injuries, he opined:
It is difficult to determine
whether or not she is truly at an increased risk of future similar injuries to
the shoulder. Overall the rotator cuff pathology was low grade in nature and
essentially represented a partial thickness tear of the supraspinatus tendon.
This was the tear that was identified at the time of the surgery. These rotator
cuff tears do no tend to persist of potentially extend and enlarge with time
with persisting wear and tear or recurrent injuries. The presence of this
partial tear of the supraspinatus tendon does somewhat compromise the integrity
of the tendon and theoretically I would expect that the tendon will be
susceptible to further re-tearing with lower energy injury then was required
initially to create the tear. Again this is difficult to prove with any
certainty given the lack of literature or evidence to support the increased
risk of re-tearing in patients who already present with a rotator cuff tear.
This opinion is simply extrapolated from our understanding and studies
regarding the natural history of partial thickness tears in which case
approximately 50% will remain the same and 50% will progress and tear further
with time.
With regards to labral pathology,
typically a successful repair as she has undergone should result in restoration
of the stability of the shoulder and thus I would not anticipate that she would
be at any increased risk with regards to the labral pathology. My main concern
would be more with ongoing issues with her rotator cuff pathology.
[169] At
six months post-op, Dr. Young opined on the plaintiffs prognosis and
potential longer-term effects on the plaintiffs employment. At p. 3 of
his December 18, 2012 report, he states:
Some patients continue to have
chronic and persisting symptoms related to the rotator cuff or labral pathology
despite operative management. It is likely that given she remains symptomatic 6
months post-op that may be some residual symptoms that she would experience.
Particularly at the time of my last assessment she did find it difficult to
continue with her occupation particularly working at a bench in a lab. This
required a lot of reaching with her arms at the shoulder height which was
eliciting pain for her and is a position that I would expect to elicit ongoing
symptoms related to the rotator cuff tendinopathy. Certainly there are some patients
that need to modify their work and even change professions based on rotator
cuff pathology.
she may continue to improve with time and reach a stage where
she no longer has any symptoms at her work at which point she could return to
full unrestricted employment with no concerns. It is difficult to determine if
this would be the case for her or if she will have some mild residual symptoms
over time.
[170]
More recently, on June 18, 2013, he further opined on causation
and prognosis. He confirmed his earlier opinion that the accident indeed caused
the plaintiffs current and ongoing symptoms. Prognosis wise, he concluded,
overall, the plaintiff had made a good functional recovery, was still
experiencing symptoms with repetitive use of her right shoulder, and approached
maximal recovery. Noting studies that indicate half of rotator cuff tears
progress while half remain stable, he thought the that plaintiffs low grade
partial thickness rotator cuff tear could progress to become a larger tear and become
more symptomatic. As for functional impairment at work, generally, he thought
that the plaintiff should be left with a minimal deficit in work that required
light to medium duties. Duties requiring repetitive reaching at or above
shoulder height would likely remain difficult.
2. Called by the plaintiff, Dr. W.D. Regan
[171]
Earlier in these reasons, I discussed portions of Dr. W.D.
Regans opinion. He is a highly experienced orthopaedic surgeon. His 25-page
curriculum vitae shows him to be highly experienced in his surgical field, with
a speciality in shoulder pathology. This has occupied him for 27 years. He has
served in the Faculty of Medicine at UBC in various capacities since 1991.
Currently, he is Associate Head of Orthopaedics. He has written extensive
professional literature related to the upper extremity.
[172]
He saw the plaintiff on one occasion, in mid-May 2013.
[173] On
p. 4 of his May 15, 2013 report, on the issue of causation, he opined:
Ms. Jaclyn Chabot had no prior history of right shoulder
pain documented either in her records or from her personal history. Following
her June 13, 2008 pedestrian/motor vehicle accident, she clearly sustained an
axial load to her right shoulder with numbness affecting her upper extremity
that developed into a nonspecific pain that was more commonly than not,
associated with anterior shoulder pain. This was noted on her initial
presentation and noted again by Dr. Young and to a lesser extent by Dr. Ritter.
…
The surgery was done to repair the labrum and debride the subacromial space
was likely based on the trauma of the indexed accident as it is not unusual for
someone of her age to have rotator cuff dysfunction and partial tearing. As a
result, since this was the only major trauma she sustained to her shoulder, it
is more likely than not, i.e. greater than 50% responsibility that the
debridement done of the labarum with repair, plus debridement of the
intraarticular and bursal sided partial tear of the rotator cuff was
attributable to the motor vehicle accident of June 13, 2008.
The burden of responsibility for
her continued anterior right dominant shoulder pain is the responsibility of
the motor vehicle accident/pedestrian accident of June 13, 2008.
[174] His
prognosis for the rotator cuff tear was more favourable because the plaintiff
still had 50% rotator cuff thickness remaining. Otherwise, he opines:
The prognosis remains guarded at this time. She has had some
benefit in the clicking from the surgery, but she still continues to experience
anterior pain and fatigue weakness, worse while loading the extremity with any
sort of weight. When she adds resistance to forward elevation of her shoulder,
she develops increasing pain with loss of mobility and strength. As a result,
she does not have the ability to work in the Biotech industry where she has
[functioned] as a scientist. She has now gone looking for a new career in
medial sales.
I believe at his point, she has
reached a plateau and she continues to have pain largely localized over her
biceps tendon or anteroinferior capsule. It would appear that her pain is not
referable to her rotator cuff at this time.
[175] When
asked on direct examination to comment on Dr. Leiths opinion that the
plaintiffs clinical presentation at the UBC Urgent Care Clinic belied any
significant structural damage, he stated:
A: Well, I mean, yeah, she didnt
have a hatchet hanging out of the back of her head
her arm wasnt located. She had
a pretty subtle but well identified problem after that accident, and her arm
felt like it was dead. And
Im sure that Dr. Leith, in all due respect,
hes a colleague and an orthopaedic surgeon. If he hadnt seen that in the
past, I would be shocked.
a) Comments on ablation studies
[176] On
p. 5 of his report, Dr. Regan comments on the advisability of further
pain ablation studies with injections into the tendon sheath of the biceps
tendon: he sees these injections more as a diagnostic and prescriptive aid for
treatment options than as a cure. He explained it could do wonders for some
people some of the time, but not in the case of injuries like those of the
plaintiff.
[177] From
his experience, patients with the plaintiffs problem repetitive work that
irritates the injury and injections that failed to help long term he opined
more injections and surgery would not help. In other words, he explained, surgeons
generally do not perform it, or anaesthesiologists give injections in order to
return the patient to an activity bound to keep irritating the condition that first
necessitated the surgery and injections. (Day 3, p. 19.)
3. Called by the defendant, Dr. J. Leith
[178]
Dr. J. Leith has practised as a physician for 19 years, 13
of those years as an orthopaedic surgeon. He has served as a Clinical Associate
Professor at UBC for six years. He has a subspecialty in the upper extremities,
including the shoulder. He also has published impressively, but not as
extensively as Dr. Regan.
[179]
On May 8, 2013, he examined the plaintiff. He did not have all of
Dr. Youngs medical reports when he prepared his report.
[180]
Plaintiffs counsel characterised the essence of Dr. Leiths
opinion this way: The accident caused no significant structural injury to her
shoulders. Another incident must have caused her current symptoms, which, in
any case, are not significantly disabling. The imaging studies gave false
positives and her surgery was unnecessary.
[181]
Dr. Leith saw the plaintiff once. He based his opinion
solely on information he gleaned from the plaintiffs clinical history, his
physical examination, and his review of the documents defence counsel provided,
which included a transcript of the plaintiffs examination for discovery. He
had not yet received the last two reports of Dr. Young when he wrote his opinion.
[182]
Most of his medical legal opinion is distillable to two major conclusions:
a) No clinical
evidence signalled a major structural injury occurred to the right shoulder
joint and its structures from the accident. Dr. Leith based this on the plaintiffs
presentation in the Urgent Care Clinic, and the lack of any localising
features specific to the rotator cuff or the labrum following the subject
accident.
b) If the accident
caused a rotator cuff tear or labral tear, the plaintiff s clinical presentation
would have been more demonstrative, acute, and localized to the shoulder joint
immediately after the accident.
[183]
The evidence of Dr. Regan and Dr. Young, supported by
medical literature put to Dr. Leith on cross-examination, with which he largely
agreed, supports the conclusion that a traumatic shoulder injury does not
always present with immediate localized pain. Further, a dislocation of the
shoulder joint is not a necessary precursor to structural damage within the
joint: damage can occur without a subluxation; subluxation occurs more often
among young athletes than do frank dislocations; and labral lesions are highly prevalent.
Further, sensations of heaviness, numbness, and tingling, are widely accepted
signs of a subluxation shoulder injury induced by axial forces. Pain on initial
presentation is not essential to the diagnosis.
[184]
I also accept the view advanced by the testimony of Dr. Regan
and the professional literature affirmed by Dr. Leith, that shoulder injuries
pose difficult diagnostic challenges, even for specialists. Missed and faulty
diagnoses are common. On clinical examination, a patient with shoulder
pathology may express pain only in certain positions, or only under certain
stresses, and on some occasions, none. Range of motion may not be always become
affected.
[185]
In short, shoulder conditions can express pain in more than one location
and in more than one way at different times. More than one underlying condition
can be present, and each condition can contribute to the same symptom or to
different ones, which further compounds the diagnostic challenges.
[186]
As well, medical literature endorsed during cross-examination by Dr. Leith,
instructs that physical examinations of the shoulder are complex; often poorly
implemented; and often fail to expose the underlying pathology, particularly in
emergency settings where the focus is on fractures, bleeding, or threatening
conditions that require more immediate treatment.
4. Summary of conclusions on medical opinions
[187]
I have notable reservations on Dr. Leiths assumptions and analysis.
I prefer the evidence of Dr. Regan and Dr. Young. I find the accident
caused the plaintiffs shoulder injuries.
[188]
An emergent patients failure to mention shoulder pain in the joint
is not an unusual presentation following an axial shoulder injury, especially with
the added presence of the plaintiffs classic clinical presentation of
heaviness, tingling, and numbness in the right arm. Dr. Regan accepted defence
counsels proposition the plaintiff at first did not complain of pain in the
shoulder in the Urgent Care Clinic. But, given her otherwise classic
presentation, he did not think this a relevant omission.
[189]
By November 2008, the plaintiff reported improvement. But I agree
with plaintiffs counsel that the plaintiffs history, viewed as a whole, shows
the plaintiff never effectively recovered from her July 2008 shoulder injury. I
also agree a pattern that shows early improvement, then exacerbations with
certain activities, and/or a gradual worsening, is a common one.
[190]
I note Dr. Leith co-authored some of articles defence
counsel presented on cross-examination. Most of the professional literature
plaintiffs counsel put to Dr. Leith suggests physical examination tests
commonly used by physicians to identify the cause of shoulder symptoms are
undependable.
[191]
Dr. Leith agreed the gold standard, for finding out what
is most likely happening within the joint, is going in and looking to see where
the problem is. Dr. Youngs evidence represents the gold standard in this
case, as he did look inside, and from his doing so, identified problems with
the shoulder.
[192]
Dr. Leith opined the plaintiffs history is not consistent
with somebody who has had either a dislocation or subluxation based on clinical
presentation stating, thats all I am saying. Im not saying she didnt hurt
herself; it just doesnt add up. However, Dr. Leiths colleagues and the accepted
literature strongly suggest the plaintiffs first complaints were consistent
with a subluxation injury caused by the axial forces produced by the impact and
channelled up the plaintiffs arm. I find these axial forces most likely caused
the plaintiffs shoulder injury and her ongoing symptoms.
[193]
Dr. Leith also mentioned he had difficulty with the fact the
plaintiff reported minimal pain on December 30, 2009, and that in March 2010,
she was able to snowboard and take jumps, which the plaintiff said was a small
one, and injure her knee. Dr. Leith testified,
some of these inconsistencies
do not allow one to conclude that much of an injury occurred as result of the
subject accident. Such assertions assume the role of both advocate and judge. Dr. Leith
explained he could not reconcile how the plaintiff was able to snowboard and participate
in a high-risk activity if she had a significant shoulder injury. He testified that
is what he sees with his patients.
[194]
Plaintiffs counsel vigorously challenged Dr. Leiths
impartiality. He submitted that he first established a defence theory and then
advocated for that one position, despite the plaintiffs medical legal case on
causation being, as counsel put it, a straightforward one.
[195]
When medical legal reports are overwhelmingly directed to
advancing the party engaging the expert’s report position, the report must be
viewed accordingly: Perricone v. Baldassarra, [1994] O.J. No. 2199
(Ont. C.J.).
[196]
Plaintiffs counsel submitted Dr. Leith had made assumptions
not supported in the evidence and had cherry picked facts to support his
arguments. He pointed to other cases, in which, he submitted, he had taken a
similar tack: Taylor v Grundholm, 2010 BCSC 860 at paras. 40-49; and
Eblaghie v. Lee, 2010 BCSC 703 at paras. 27-33.
[197]
I acknowledge counsels concerns, which he wished me to
specifically address. But as I have accepted the plaintiffs position, based
partly on an able cross-examination, it is not necessary for me to make a
specific finding of partiality based on this and other cases brought to my
attention. I will comment only that Dr. Leiths opinion tended to read somewhat
like a challenge to a contrary thesis. A medical legal experts assessment, whether
original report or rebuttal, should begin with a blank page on the rebuttal
point, its conclusions drawn from all available creditable information, pro and
con. That said, Dr. Leith clearly set out the facts and assumptions upon
which he relied; and those areas that gave him pause. This allowed defence
counsel to challenge them head on and he did not have to guess at where he
needed to go with his cross-examination. In those endeavours, counsel
complained Dr. Leith was evasive and niggled over incidental matters, did
not concede readily those points he ought to have acknowledged, and made it
difficult to address complex medical legal issues. He forcefully submitted that
counsel are always at a disadvantage when they cross-examine an expert, and
that Dr. Leith made a challenging examination unnecessarily more so. I
recognize those concerns. Ultimately, however, he ably accomplished that which
he set out to do; and Dr. Leith affirmatively answered many of the points
he pressed.
[198]
I prefer the opinions of Dr. Regan and Dr. Young
because I preferred their medical legal analysis and explanations. Their
opinions accorded with one anothers opinions and with the evidence as a whole.
They differed in the level of their concern regarding the plaintiffs rotator
cuff problems, but this is not a material difference, considering the issues. Their
opinions also accorded with excerpts from the medical literature presented to Dr. Leith
on cross-examination, with the plaintiffs documented clinical history, and
with the plaintiffs credible evidence.
[199]
Dr. Regan pointed to medical diagrams and to locations on
them that explained the nature and extent of the plaintiffs injuries. He
explained their significance and linked them to the plaintiffs symptoms in a
way that made sense and accorded with accepted facts.
[200]
Both Dr. Young and Dr. Regan responded reasonably to
questions asked on cross-examination.
[201]
As it is, I find the plaintiff has proven the accident – and
nothing else – caused her shoulder injury and its symptoms, although certain
activities exacerbated her symptoms as discussed.
D.
Would the plaintiff have pursued
postgraduate studies without her injuries?
[202]
The plaintiffs position is that she intended to pursue
postgraduate studies until Dr. Sokoll persuaded her it was not worth it to
her financially to pursue a Masters and doctorate degree. Nonetheless, she had
not ruled out a return to university in pursuit of postgraduate degrees. The
defendant, however, argues against the realism of any such plan because it does
not consist with her husbands evidence that she did not want to return to
school because she wanted to have children.
[203]
The plaintiffs conversation with Dr. Sokoll requires proper
context. Both the nature of the work the plaintiff did for PharmaGap and the
salary she received significantly exceeded what technicians with her
undergraduate credentials on average were statistically likely to perform and
earn. Had PharmaGap prospered, the plaintiff conceivably would have gathered
more experience in higher levels of research. Dr. Sokolls advice could
have proven to be shrewd career and financial advice. But events did not unfold
that way.
[204]
In the ordinary course of the plaintiffs career and without the
accident, postgraduate degrees likely would have opened more career goals and
higher salaries to her, albeit at the cost of income foregone for the time
spent in pursuit of the degrees.
[205]
That said, the plaintiff testified she and her husband plan to
have two, perhaps three children and her husband testified that it was this
plan that directed the plaintiffs position on a return to school.
[206]
Depending on their ages and other circumstances, having children would
not necessarily have foreclosed postgraduate studies. But given the time and
energy that postgraduate laboratory research demands, one realistically would
expect to see this postponed until the children were more independent,
irrespective of the accident.
[207]
In my view, there remains a realistic possibility that without
her shoulder injury, she would have had children and still have pursued
postgraduate degrees, more probably a Masters than both a Masters and
doctorate degree. I note Quebecs childcare plan and that other childcare
arrangements might realistically be available to assist.
[208]
What the plaintiffs shoulder limitations have cost her is the
lost opportunity she had without the accident to pursue postgraduate studies;
and with that, the capacity to conduct the higher paying intensive laboratory
work postgraduate that biochemistry degree programs usually requires. I find
her pursuit of postgraduate degrees without the accident, even if she decided
to raise children, was a realistic possibility, but the probabilities were not
high. I base this on evidence regarding the gruelling demands of laboratory
work; and, generally speaking, evidence of the commitments of time and energy that
both post graduate degrees require. The plaintiffs husband is employed full
time in a responsible position that pays a decent salary. The plaintiffs
history indicates the importance she places on family and her enjoyment of
children. In my view, the plaintiff would likely consider other postgraduate
studies that would be less disruptive to raising children. As Dr. Alexander
describes his experience, the biochemistry Masters program, require total
commitment, much as the plaintiffs final honours year required of her.
[209]
That said, there being a realistic and substantial enough possibility
the plaintiff would have chosen to pursue postgraduate studies, perhaps spread
over a longer period, the loss of opportunity to pursue further studies in
biochemistry becomes a factor when addressing the plaintiffs award for loss of
earning capacity.
VIII.
Damages
A.
Loss of past income
[210]
I do not agree with the September 1, 2012 lay off date at PharmaGap
proposed by the defendant. But for calculation purposes, it does not
matter because PharmaGap never paid the plaintiff for the period between
September 1, 2012 and January 2013.
[211]
I find the defendants calculation of the net past wage loss is
reasonable. I award $31,807 for past wage loss.
B.
Loss of earning capacity
1. Legal principles
[212]
Damages for loss of earning capacity compensate the plaintiff for
the loss of the value of the work they would have done, if the accident had not
occurred. They compensate for the loss of the earning capacity the plaintiff used
to have, not for the loss of their earnings: Rowe v. Bobell Express Ltd., 2005
BCCA 141.
[213]
A plaintiff must prove a substantial probability of a future that
leads to an income loss. The court must award compensation by estimating the
chances that event will occur: Steward v. Berezan, 2007 BCCA 150 at para. 17.
[214] In Perren
v. Lalari, 2010 BCCA 140 [Perren], the Court of Appeal explained the
level of proof at para. 32:
[32] A plaintiff must always prove
that there
is a real and substantial possibility of a future event leading to an income
loss. If the plaintiff discharges that burden of proof, then depending upon the
facts of the case, the plaintiff may prove the quantification of that loss of
earning capacity, either on an earnings approach, as in Steenblok, or a
capital asset approach, as in Brown.
[Emphasis in original.]
[215]
A judge tasked with determining the plaintiffs future loss of
earning capacity must account for all substantial possibilities and to assign
weight to them according to how likely they are to occur in light of all the
evidence: Parypa v. Wickware, 1999 BCCA 88 as cited in Perren at
para. 14.
[216]
Generally, a judge may assess future loss of earning capacity in
two ways. First, when a plaintiff proves a pecuniary loss that can be
quantified, the judge may use what Finch J.A. called in Pallos v. Insurance
Corporation of British Columbia, [1995] B.C.J. No. 2 (C.A.) the
real possibility approach. Second, when the plaintiff proves a loss that
cannot be measured in a pecuniary way, as is often the case with young persons
with no academic or earnings history, the court should adopt the method used in
Steenblok v. Funk, [1990] B.C.J. No. 1158 (C.A.) [Steenblok];
Brown v. Golaiy, [1985] B.C.J. No. 31 (S.C.) [Brown];
and Kwei v. Boisclair, [1991] B.C.J. No. 3344 (C.A.).
[217]
Counsel for the plaintiff submits the plaintiff has proved the
substantial probability of a quantifiable loss of future income that therefore
warrants the real possibility approach.
[218]
The defendant submits the Brown method is correct, because,
assuming the court finds the plaintiff has suffered a loss of future earning
capacity, she cannot prove she has suffered a quantifiable loss of future
income: this is because, counsel submits, what she earns now does not differ
from what she earned as a lab technician before the accident. Therefore, the
defendant urges adopting the Brown method, in which the court assesses the
value of the loss commensurate with the following factors:
a) the plaintiff has been rendered
less capable overall from earning income from all types of employment;
b) the plaintiff is less marketable
or attractive as an employee to potential employers;
c) the plaintiff lost the ability to
take advantage of all job opportunities that might otherwise have been open had
they not been injured; and
d) the plaintiff is less valuable to
themselves as a person capable of earning income in a competitive labour
market.
[219]
I should point out that the above four factors are all subject to
the overarching principle that the future possibilities must be ones that are both
realistic and substantial. I therefore read that qualifier into those
tests. I take realistic to mean possibilities supported by the evidence, not
speculative; and substantial to mean more than a mere possibility, one to which
one could reasonably attribute a meaningful percentage.
[220]
Of course, if the value of the plaintiffs future loss of earning
capacity is not readily quantifiable, this does not preclude use of relevant
economic data, statistical information on earnings, and other relevant numbers.
Their purpose is to hone a judges assessment and to ensure the damage award is
fair. Further, the assessment questions in Brown, properly qualified by
the real and substantial qualifiers, are also useful analytical guides
to analysis on a Steenblok type of loss.
2. Overview
[221]
The plaintiff continued to work as a lab technician at UBC after
her July 2008 accident until November 2008, when she returned to Ottawa.
Between February 2009 and August 2010, she was employed at the National
Research Council; and between August 2010 and January 2012 at PharmaGap.
[222]
Counsel submits, accurately in my view, that after the plaintiff returned
to Ottawa, she diligently sought a cure until her shoulder ultimately succumbed
to the wear and tear and repetitive use of her injured right shoulder from
her laboratory work and underwent surgery in March 2012.
[223]
When the plaintiff worked as a Level 2 technician between
February 2009 and August 2010 at the National Research Council, she lost no
paid days of work due to shoulder problems. To accommodate her shoulder
problems there, she rescheduled her work activities around them.
[224]
When she started to work at PharmaGap, the plaintiffs laboratory
studies did not require much lab time at first. They gradually grew in size and
complexity. At peak, the research required four hours lab work in the morning
and four hours in the afternoon. PharmaGap had to hire more staff to meet the
demand. The need to accommodate the plaintiffs shoulder problems was also a
consideration.
[225]
Plaintiffs counsel submits the plaintiff will continue to
experience significant challenges with any tasks – e.g. lab work – that require
extended or repetitive work above shoulder height. Against this, the defendant
submits the plaintiffs ability to continue work as a lab technician, when
linked to other evidence, confirm her shoulder does not limit her ability to
perform lab work.
3. Has the plaintiffs shoulder condition impaired her
lab work?
[226]
The defendants counsel advised the court the defendant did not
challenge the plaintiffs honesty and integrity. Counsel, however, forcefully attacked
her testimony regarding the degree of her impairment. Counsel characterised the
impairment as minimal and argued it did not hinder her lab work. I have already
commented favourably on the plaintiffs credibility.
[227]
The plaintiffs work history following the accident accords with
her work ethic and character. Her eventual career goal was high-level research
as a research scientist. PharmaGap represented a major step in that direction.
The evidence shows she diligently sought treatment and hoped to recover
eventually. Therefore, standing on its own, I do not find the fact the
plaintiff continued to work undermines the credibility of her position on the
nature of her impairment. Still, the defendants challenge to the plaintiffs
testimony on the physical demands of the lab work, and on how her shoulder
condition impaired her performance, needs fuller consideration. This is an
important area for the defendant.
[228]
The defendant submitted that the evidence of Dr. Abraham, Dr. Leith
and Ms. Miners contradict the plaintiffs evidence on the demands of lab
work. Counsel referred in particular to the plaintiffs claim that, because of
the nature of the work she performed at PharmaGap, and to fear of tissue contamination,
she could not rest her elbow on the lab bench or, once she started to transfer
certain tissue transfers, could not take a break. Counsel further pointed out Dr. Abraham
and Ms. Miners had worked in labs in the private sector. They had opined the
physical demands of the lab work between the private and public sector did not
differ. Counsel further submitted the evidence of Dr. Abraham and Ms. Miners
contradicted the plaintiffs evidence. They testified lab technicians: rarely
use their shoulders because they can rest their elbows on the bench; they can
use ergonomic supports; and they can take breaks even when they work under the
laminar hood, provided they decontaminate afterwards.
[229]
The defendant submits this suggests that mild ongoing shoulder
discomfort would not prevent the plaintiff from working as a lab technician. Therefore,
counsel submits, the plaintiff failed to establish a real and substantial
possibility of a future event that leads to an income loss.
[230]
Because I have rejected Dr. Leiths opinion on causation and
on the nature and extent of the plaintiffs shoulder injury, his opinion on how
the plaintiffs shoulder condition ought to have affected her ability to
perform all the laboratory work required when she worked at PharmaGap does not
assist on this question.
[231]
I note none of these witnesses knew the nature of PharmaGaps
research or what it demanded of the plaintiff. Moreover, the evidence of Ms. Miners
and Dr. Abraham that they did not find laboratory work physically
demanding does not logically contradict the plaintiffs position.
[232]
The plaintiff testified that before the accident, long hours of some
repetitive types of lab work could leave her feeling mentally and physically
exhausted at days end, especially after consecutive ones. This and some muscle
tension was an expected effect of long periods of repetition actions that some
lab work required. Before the accident, she could manage it.
[233]
Dr. Abraham agreed long hours of lab work are physically
demanding. He worked in the lab up to 90 hours weekly when working on his masters
degree, which he evidently found a considerable challenge.
[234]
Viewed within the context of the nature and extent of the lab
work the plaintiff engaged in at the UBC Life Sciences Laboratory, no one has
suggested work there was physically demanding. Lab work at a given time or
place, such as at PharmaGap, might be more demanding than, say, at the UBC Life
Sciences Laboratory. At PharmaGap, she had to meet production demands she could
no longer cope with, particularly as her shoulder pain worsened.
[235]
At the UBC Life Sciences Laboratory, Dr. Abraham divided the
plaintiffs duties between 60% laboratory work and 40% office work. Technicians
there did most of their work on an open bench, not under a laminar flow hood. Ms. Miners
recalled the plaintiff worked fewer than four hours weekly under the hood.
However, PharmaGap required more time under the hood, and the plaintiff found
she could not sustain the strain on her shoulder of eight hours in one day
performing critical repetitive lab work.
[236]
The plaintiff agreed she could complete her duties at the UBC
Life Sciences Laboratory following the accident though with some discomfort.
[237]
I find the lab component of her duties at UBC were less intensive
than her lab work at PharmaGap. UBC lab work required much less time under the
hood and placed fewer demands on the plaintiffs right shoulder. PharmaGaps
production demands for its clinical trials were heavy and demanded extended
hours of laboratory work. Dr. Abraham testified such long hours at the
laboratory bench are not typical. In any case, the plaintiff now can no longer sustain
more than fifteen or twenty minutes lab work using her right arm above
shoulder height and performing movements that require fine motor control,
particularly on more sensitive procedures.
[238]
Ms. Miners testimony that she did not find the laboratory
work in the Life Sciences Laboratory physically demanding makes sense within
the context of the work she described. It allowed technicians frequent
opportunity to get up move around if they wanted to. They could rest their elbows
on the lab bench if they needed to do so. She did not recall what, if anything,
the plaintiff did with her elbows. A change of clothes and spraying gloves
addressed lab containment concerns.
[239]
I understand fans attached to the laminar hood force air underneath
the hood and draw out contaminated air drawn into airflow vents inserted around
the perimeter of the bench top. This prevents tissue sample contamination and removes
contaminated air.
[240]
The plaintiff testified that when she performed lab work under the
laminar hood for PharmaGap, she could not rest her elbows on the bench surface.
Her understanding was that PharmaGap was concerned about contaminating sensitive
clinical trial tissue samples. Blocking the air vents with her elbows would
interfere with the proper laminar flow of air into the vent inlets.
[241]
The plaintiff called a fellow PharmaGap employee, Ms. R. So,
hired by PharmaGap in June 2011. She confirmed the heavy volume of lab work, as
the plaintiff described. She noticed the plaintiff experienced discomfort when
she worked with samples under the hood and that the plaintiff needed help. Ms. So
took on greater responsibility for that work and recalled the plaintiff lessened
her lab time by at least 40%.
[242]
The plaintiff received disability benefits following her March 21,
2012 surgery. On November 16, 2012, she and an occupational therapist retained
by the disability insurer went to the PharmaGap worksite. By then, most staff had
been laid off and not much was going on at the worksite. The insurer had asked
the therapist to assess the physical demands the plaintiffs lab work placed on
her injured shoulder. Her position required 80% of her time performing lab
related work and 20% at a computer workstation according to the plaintiff. The nature
lab work was not broken down into sub-components.
[243] The
report of the occupational therapist, Ms. I. Neufeld, who has 31 years
experience working in the field, was marked as an exhibit for identification
purposes. She also testified. Her report describes the nature of the
plaintiffs lab work at PharmaGap. She watched the plaintiff show procedures
under the laminar flow hood. (The plaintiff also recounted this, but in a less structured
way. To distil matters, I will quote from the therapists report, at p. 2.)
Passing Cells
Instruments are cleaned and sterilized. Cells are transferred
with tubes and syringes from a flask to other containers. Ms. Chabot
reported that the time frame for performing this task varies but that it can be
several hours at a time. She also indicated that the flasks and containers need
to be kept to the back of the work surface to prevent contamination. The
process cannot be stopped at any point, as the cells will die. For the same
reason, Ms. Chabot reports that working quickly is essential.
Cell Based Assay
Ms. Chabot was observed performing this procedure for 20
minutes only because she was reporting significant pain symptoms were preventing
her from continuing.
This procedure involves adding
treatment to cells. Cells are inserted into tubes and the treatment is added
with a multi-channel repeater device. This process is timed and precise. Ms. Chabot
reports that the Clinical Development Scientist and spend a whole day with this
job.
[244]
Ms. Neufeld noticed that when the plaintiff performed these
procedures, she positioned her arms continuously forward or upward. Her left
hand was not precise enough to avoid touching the sides of the test tubes,
risking cross-contamination, which would ruin the testing. I understand concerns
about contamination vary in proportion to the nature of the research and risks
associated with the substances used or produced. Ms. Neufeld understood,
from what the plaintiff advised, that PharmaGap ruled out use of a wrist rest
on the bench because of contamination concerns, but she had not first-hand
evidence of this direction.
[245]
The two following photographs show more effectively than will a
long narrative description of how the plaintiff held her arms when she
performed procedures inside the laminar hood. The first photograph shows the
plaintiff passing cells. The second shows the plaintiff performing cell-based
assay work. The text and arrow in the first photograph were added to point to
the location of the bottom edge of the glass plate. Air containment outflow low
vents are visible around the perimeter. The plaintiffs face has been cropped
from both photographs.
[246] In
passing, I note defence counsels suggestion that the plaintiffs arm would
have blocked the airflow anyway, so that resting elbows on it would be no
different. I do not believe that assertion is correct; I gather contaminated air
is drawn down and into the outtake vents, not forced out of them. The plaintiffs
raised arms would not interfere with the flow of air into the vents, but
resting arms and elbows apparently could. If I am incorrect, little turns on
this particular point either way.
[247]
The plaintiff is right handed. In the photographs, she holds two
different sized pipettes for the two different procedures. To transfer samples
or substances from one tube or container to the other, she holds her right arm higher,
as she also explained. Even if the plaintiff did have something to rest her
elbow on, logically, some sustained extension of the right arm would still be
required when transferring tissue samples and performing other similar tasks.
These observations are not essential to my conclusions, but eye and common
sense commend them as reasonable ones.
[248]
In summary, I do not find the evidence of Dr. Abraham and Ms. Miners
undermines the plaintiffs credibility on the nature and extent of her
impairment and its effects on her capacity to perform extended hours lab work
with the right arm in an extended position at or above shoulder level.
[249]
I find the plaintiff is unable to perform laboratory procedures
that require sustained use of her arms extended in front of her. Formerly, she could
do so without limitation only experiencing normal fatigue and muscle soreness after
particularly long stretches at the lab bench.
[250]
I find the plaintiff can still perform lab procedures that do not
require repetitive or extended use of her right arm for sustained periods. However,
I find she could not engage in such other types of lab work for extended
periods as she could before the accident.
[251]
I am also mindful of Dr. Regans comment, as I understood
it, that patients, who experience discomfort when they engage in an activity
and undergo surgery, should then not expect they could resume the activity without
irritating their condition.
[252]
The plaintiffs injuries have limited her access to career
opportunities to which she is highly suited by training and experience. She is
now less capable overall of earning income within her chosen field in those
positions that require extensive periods working at a laboratory bench. Her
injuries have made her less attractive as an employee to potential employers in
her field. She is less capable of pursuing postgraduate degrees that would
equip her better to seek higher paying positions within her field. She cannot pursue
those positions and opportunities that consist mostly of laboratory work or involve
extended periods of it.
C.
Assessment of the value of the
lost earning capacity
1. Economic and vocational evidence
a) Vocational report
[253]
Mr. Richard M. Carlin prepared a vocational assessment report,
dated July 29, 2013. He is a Canadian Certified Rehabilitation Counselor, holds
a Diplomate granted by the American Board of Vocational Experts, and is a
member of the College of Vocational Rehabilitation Professionals. He has been
in private practice, working as a Vocational Rehabilitation Consultant since
July 1987. His testing showed the plaintiff had a strong intellectual capacity
and good potential for postgraduate studies. He recommended, if the plaintiff
wanted to return to university, to obtain a graduate degree in sciences, that she
should select a degree that did not require long hours or engage her in the
kind of lab-related activities of the kind she has been involved in. Suggested
alternative postgraduate degrees included a Masters in Business Administration
or in Health Administration. These programs cost approximately $30,000 for
tuition, incidental fees, and textbooks.
[254] At
p. 6 of his report, he comments:
[The plaintiff] was a healthy,
physically fit individual who possessed the skills and physical capacity to
perform laboratory bench and hood work without limitations. This, in
conjunction with her education, intelligence, and ambition, was her most
marketable skill and strength in the labour market.
As it is relatively rare
to find individuals with a Bachelors degree in such positions, [at PharmaGap]
it is difficult to know whether [the plaintiff], would have gone on to obtain
similar work without upgrading her education. However, at the very least, she
would have been able to obtain jobs in Laboratory Technician positions and then
to move up the occupational scale in terms of pay and responsibilities. At
best, she would have continued to be employed in Research Scientist positions,
similar to her work with Pharmagap and likely in the private sector.
b) Economist report
[255]
The plaintiff provided three reports, prepared by a consulting economist,
Mr. D. Benning of PETA Consultants Ltd., dated August 2, 2013; October 22,
2013; and October 23, 2013.
[256] The
plaintiffs taxable pre-accident employment income from 2006 to 2012 was:
Employment | |
2006 | 28,270 |
2007 | 38,763 |
2008 | 38,693 |
2009 | 42,534 |
2010 | 58,129 |
2011 | 85,317 |
2012 | 26,337 |
[257] These
figures may mislead because some years, such as 2012, are partial earning
years. The plaintiff commenced her 2009 employment in February. The income for
2010 blends income from the National Research Council and five months at
PharmaGap.
[258]
Statistics Canada groups the income of biochemists with
biologists under the general designation of biologists and related scientists.
The table following table includes incomes of undergraduate and graduate
employees, its figures representative of Canadian averages. They include
persons with graduate degrees and undergraduate degrees. The averages of third
quarter full-time earnings for both males and females are approximately 20%
percent higher than the average. For example, the average earnings for females
in the top 75% are $85,503 v. $70,772; for males, $116,512, v. $68,978. For a
male or female in the 30 to 34-year-old cohort, they would be approximately
$85,000 and $75,000 respectively.
[259] The
plaintiff now earns a salary of $45,000 at DNA Genotek, plus sales commission.
How much commission the plaintiff might actually earn remains uncertain. The
plaintiffs employment contract with DNA Genotek projects commission earnings
of $17,000, which would produce an annual income of $60,000. It was not clear
if the $17,000 represented commissions the plaintiff should expect or
contractual expectations the employer expected of her. At first, the plaintiffs
sale figures looked good because she received some commissionable sales already
in progress when she arrived. More recently, however, earned commission dependent
just on her own performance has disappointed her. She worries about whether she
will be effective in sales.
c) Dr. Abrahams income estimations
[260]
Dr. Abraham testified the plaintiff worked as a Level 3
Technician at the UBC Life Sciences Laboratory. He estimated their annual
salaries range between $40,000 and $42,000. The highest paid employees, Level 4
Technicians, earn around $45,000.
[261]
Employment benefits in both instances are generous, 18 to 20%, and
they add $8,000 to $10,000 to the annual salaries, so $48,000 and $50,000.
[262]
Level 3 Technicians need a Bachelor of Science; Level 4 positions
generally want graduate degrees. As Dr. Sokoll explained, however,
employees with undergraduate degrees may outperform graduate employees, advance
further, and presumably earn equivalent salaries.
d) Findings on without and with-accident income
[263]
Plaintiffs counsel submits the plaintiffs without-accident-income
should be based on the third quarter earnings for her age 30 to 34 cohorts,
either for males, or the average of the male and female cohorts. In brief, he
bases this position on the following:
a) the plaintiffs 2011
PharmaGap earnings exceeded the age 30 to 34 female cohort earnings (in 2013$) by
$10,000 and the male cohort by $3,000. They also exceeded the younger 25 to 29-year-old
cohort by about $20,000; and
b) the plaintiffs
performance at PharmaGap exceeded Dr. Sokolls expectations. He explained
that employees with postgraduate degrees usually performed work at the level
the plaintiff had been engaged in at PharmaGap. She demonstrated capabilities
required to progress to the highest income level. Counsel submits the plaintiff
could have achieved the highest level of scientific research.
[264]
Counsel for the plaintiff submitted there is no reason to assume
the plaintiffs average annual earnings would have peaked at $90,000. He argued
average without-injury earnings of $100,000 to $120,000 better represent the
plaintiffs future earnings potential. These figures in turn respectively produce
lifetime earnings of $1,861,500 to $2,233,800, using the male multiplier of 18.615.
[265]
Assuming average earnings of $50,000, based on the plaintiffs estimated
current earnings at DNA Genotek, a few thousand dollars of commission included,
produces a present value loss of future earnings of earnings of $930,750 and
$1,116,900. These figures are based on 1) the male economic multiplier; 2)
annual earnings of $100,000 and $120,000 respectively; and 3) with-injury
earnings that are 50% of without-injury earnings.
[266]
The lowest present value figure calculated on these with-injury present
value earnings is $744,600, which represents 40% of without-injury earnings of $1,861,500.
[267]
The defendant submits an award in the range of $35,000 to $40,000
for loss of future earnings capacity would be reasonable. Counsel submits the
positive contingency urged by counsel which assumes the plaintiff would work as
a research scientist, designing and overseeing lab experiments, is purely
speculative. Counsel pointed to Dr. Abrahams evidence that a graduate
degree is required for that level of work and to Mr. Carlins opinion the
plaintiff lacked the educational credentials to gain a research position
elsewhere unless she could gain a position similar to what she had at
PharmaGap; and, from there, work her way up within the company.
[268]
The defendant asserts the following contingencies, negative for
without-accident success and positive for with-accident success:
Negative contingencies
a) the plaintiffs
desire to have children; and
b) limited job
opportunities in the biotech industry.
Positive contingencies
c) the
possibility that further injections, additional surgery, left hand training, or
a work hardening program would improve her condition or resolve it.
[269]
Counsel submits the PharmaGap position was a one-of; and, that
it is most unlikely the plaintiff would ever again see such a positive confluence
of positive contingencies come together and advance her career and average
earnings so quickly.
[270]
Regarding the plaintiffs desire to have children, Mr. Benning,
the economist, noted that the majority of women who leave the workforce to have
children return to work within two years. Employment maternity leave, greater participation
of fathers in child rearing, and childcare programs in Quebec somewhat lighten
the weight of family responsibilities for women in the workplace.
[271]
As for opportunities in the biotech industry, counsel points to Dr. Sokolls
evidence that the job market in Ottawa has been poor; in addition, the 2008
economic crisis adversely affected the Toronto and Montreal job markets.
[272]
Counsel also notes that it took the plaintiff nine months to find
another position after PharmaGap; and that this was for work outside her field.
In fairness, the plaintiff excluded herself from positions that involved a heavy
concentration of lab work. She was interviewed, but not hired for some
positions she had applied for. Consequently, employment opportunities
existed. Her former colleague, Ms. So, found a position with a $50,000
salary, albeit this took several months to find and she had an inside line
through a friend into the company that hired her.
[273]
The defendants points are sound, but the court has to take a
somewhat longer view, one that extends beyond the effects of the 2008 economic
crisis. The court heard no professional forecasts, but a judge may take
cautious notice of what anyone can read in the financial sections of newspapers
and hear on national television: the economy in the U.S. has been improving
overall, as it also has in Canada. June 2008 should not be the only prophet of
career earnings that will extend over thirty years.
2. Further discussion and conclusions, loss of future
earnings capacity
[274]
I discussed earlier the positive with-injury contingency that
further treatment might improve the plaintiffs shoulder. The plaintiff might derive
further benefit, but I accept Dr. Regans view that the plaintiff will
never fully recover. She is not suited now to a position that would commit her
to lab work that will continually irritate her injured shoulder. As discussed,
this finding does not mean she cannot tolerate reasonable levels of laboratory
work that do not involve extended periods with her right arm extended at or
above shoulder level.
[275]
Considering the intensity of lab work required for a graduate
degree in biochemistry, I find the possibility of the plaintiff pursuing that now
is not realistic. Mr. Carlin outlined possible career options open to the
plaintiff, for example a degree in a non-science area such as a Masters in
Business Administration or a Masters in Health Administration. Mr. Benning
calculated with-injury present value lifetime earnings, after retraining, based
on male labour market contingencies, and on annual earnings of $75,000, at a
present value of $1,285,085. The equivalent figure based on female labour
market contingencies is $1,166,078.
***
[276]
I agree with the plaintiff that the plaintiffs success at PharmaGap
was a harbinger of longer-term success. But the defendants stand that it
represents a one-time, one-place fortunate confluence of events is also reasonable.
That said, the court cannot overlook the realistic and substantial possibility that
had the plaintiffs shoulder not been impairing her when she left PharmaGap,
she could have pursued, without limit, similar opportunities that also would demand
heavy commitments to lab work.
[277]
I find merit in the reasoning of plaintiffs counsel that the
plaintiff showed both talent and commitment to her chosen field of study.
Moreover, she showed uncommon levels of energy, which propelled her into the top
quartile of the 30 to 34 earnings cohort for men and women.
[278]
I note that female earnings track male earnings fairly closely, beginning
in the 35 to 39 age cohort. I see no reason to use male earnings in this case.
The likelihood the plaintiff would be more committed to her career than average
can be addressed with a gross up.
[279]
It is important to note the earnings figures incorporate both
undergraduate and graduate employee earnings, which favours the plaintiff.
[280]
I assess the plaintiffs without-accident earnings at $75,000,
which I note roughly represents third quartile earnings for females in the 30
to 34 cohort.
[281]
I assess the plaintiffs with-accident earnings at $60,000. This
finding represents a $43,000 salary plus commission of $17,000. In my view, the
plaintiffs earnings assessment should reflect the fact that while the
plaintiff now has physical limitations to contend with, other key attributes
essential for success in a career remain intact. Further, the plaintiffs strong
potential for retraining in a field that would capture some of her former
training and experience should be considered.
[282]
Assuming annual without-accident earnings of $75,000, and with-accident
income of $15,000 and a multiplier of $16,930 yields a net present value of around
$254,000.
[283]
Some possibility remains that the plaintiffs shoulder could
improve sufficiently to increase somewhat her tolerance levels for laboratory
work.
[284]
I note, as well, that, if without her injury the plaintiff would
have chosen to return to university for postgraduate work, she would have
incurred education expense and lost earnings. On the surface, this argues against
any award towards the cost of retraining, considering the tables incorporate
undergraduate and postgraduate earnings and Dr. Sokolls (circumscribed) advice
to the plaintiff. With that said, there remains the realistic and substantial possibility
that, without her shoulder injury, eventually, the plaintiff would have returned
to postgraduate studies. Thus equipped with greater education, her academic
achievements, ambition, work ethic, and Dr. Sokolls characterisation of
her abilities, there is a real and substantial possibility she would have
achieved significantly higher earnings than the $75,000 I have assumed,
notwithstanding this represents higher quartile earnings than average all for
women employed in the category. Further, if the plaintiff wishes to further her
education in a different field, such as a Masters of Business Administration
or Health Care Administration, much of what she has learned will have been lost
to her.
[285]
Earnings tables and calculations are starting points to
assessments of loss of future earnings capacity. An overall assessment is
required. The factors mentioned must be balanced and weighed in proportion to
the realistic and substantial possibilities, and to the contingencies, both
negative and positive.
[286]
In my view, a notional gross up that recognises the educational
cost of retraining in a new field, the substantial chance the plaintiff would
have been more committed than average to her career; and the high level of her achievements
and ability in her chose field, is justified. There is a significant
possibility that a figure of $60,000 overstates the plaintiffs with-injury
earnings. These considerations must be balanced, however, against the fact that
those things that inspired her achievements and success remain intact. With
retraining outside her chosen field, she may achieve significantly higher
earnings than assumed in the figure of $75,000; and she could still achieve
considerable success within her chosen field in a position that does not task
her right shoulder beyond tolerable limits.
[287]
The assessment must be fair to both parties. Considering it traverses
unknown future events with significant contingencies, both negative and
positive, it should be judicious, keeping in mind its ultimate purpose of
replacing realistic and substantial future possibilities lost to the plaintiff.
[288]
I assess the present value of the plaintiffs loss of future
earnings caused by the accident at $280,000.
D.
Special Damages
[289] I
find the following special damages proven and reasonable:
Special Damages: |
|
Nepean Sports Medicine & | $71.00 |
Montreal Road (Pro Physio | 239.00 |
Victory Performance Centre | 815.95 |
Elgin Massage Therapy | 170.00 |
Dr. Simon | 625.00 |
Miscellaneous Home Maintenance | 3,251.30 |
Parking | 46.00 |
Total: | $5,218.25 |
E.
Future cost of care
[290]
Future care costs are based on what is reasonably necessary on
the medical evidence to promote the mental and physical health of the
plaintiff. Milina v. Bartsch, [1985] B.C.J. No. 2762 (S.C.), at para. 172.
[291]
Counsel for the plaintiff submits the plaintiff has reached a
medical plateau that will leave her with permanent symptoms. He submits the
present value figure of $46,553 is required to cover the cost of massage and
physiotherapy sessions, necessary to relieve flare-ups assumed to occur twice a
month indefinitely. This figure also assumes the cost would be $80 each visit,
24 times yearly at a total cost of $1920. This assumes treatment to age 80 and
a multiplier of 23.2766.
[292]
Counsel referred to the following:
a) the plaintiff
has undertaken pain ablation injections and Dr. Reagan has recommended
additional ones. If so, these are the result in six weeks immobilization in a
sling followed by active rehabilitation;
b) the plaintiff
continues to have physiotherapy treatments, 37 of which occurred since April
2012; and
c) the
plaintiff may require further surgery on her rotator cuff and would require
further treatments if she reinjures her shoulder.
[293]
Quantification of cost of future care is an assessment, not a
precise accounting exercise. It must include adjustments for contingencies, Drodge
v. Kozak, 2011 BCSC 1316.
[294]
Medical evidence on future care costs is rather thin. The cost of
future injections is not set out. The fact remains the plaintiff may require
further arthroscopic surgery on her shoulder, followed by active
rehabilitation. Given the plaintiff will not fully recover from her shoulder
injuries and will require further treatments if she reinjures it, a notional
allowance for future treatments is reasonable and is all the evidence at hand
can support; the scenario of treatment to age 80 and 24 times yearly suggested
by counsel is not supported by the medical evidence. The evidence available and
common sense say the plaintiff should have some allowance. I award $8,000 for
cost of future care. I have considered cost of retraining in the assessment of
loss of future earnings capacity.
F.
Non-pecuniary damages
[295]
Apart from a sciatica condition caused by a pre-accident snowboarding
fall, and from which she had almost recovered when the accident occurred, the
plaintiff had no pre-accident physical limitations. She was young, strong, and
in excellent health when the accident occurred.
[296]
Active participation in sports and outdoor recreation formed integral
parts of her lifestyle. Pre-accident activities included hiking, rock climbing,
running, camping, canoeing, snowboarding, skiing, cycling, motorcycle riding,
volleyball, throwing football and other activities.
1. Recreational impairments
[297]
Plaintiffs counsel described the plaintiffs recreational impairments
as severe. In my view, that overstates their nature and extent. The plaintiff still
participates in recreational activities in varying degrees: the main
determining factor is how much she has to engage her shoulder; and,
particularly, the extent she has to lift her arm and use it above shoulder
level.
[298]
Overall, she no longer participates at all in some activities,
and in those she does participate in, she does so less often than before and
much less vigorously.
[299]
The plaintiff is still able to hike, and much as before. In
Vancouver, she purchased what she called a great ergonomic pack that
transfers all the weight of the backpack to her hips, but she is still left
with a little pain in her shoulder. Some hikes go on for two to three hours. If
she feels increased pain in her right shoulder, she weaves her right arm in
through the front shoulder straps to support it. The pain does not deter her. She
no longer rock climbs. She has not ridden a motorcycle since her experience in
Vancouver. She still plays recreational volleyball, with some limitation. She
cannot strike overhead. She serves only underhand and spends the majority of
her time bumping. Video surveillance taken of the plaintiff in summer 2013 shows
her participation in volleyball is as she says.
[300]
Before the accident, the plaintiff canoed on long camping
journeys with friends or family. She could white-water canoe. After the
accident, she canoed a short distance while on a family camping trip. This last
summer, she went on a canoe trip with her husband. She could not paddle with
any force. She ended up using her paddle as the rudder to steer and left the
paddling to her husband. The plaintiff does not foresee more canoeing.
[301]
She tried kayaking with her former fiancé who was an experienced
kayaker. She had kayaked a couple of times before, but she was not experienced.
After the accident, she was reluctant, but Mr. Savard persuaded her to
kayak with him and others on the Ottawa River. He assured her he would stay
close by. She stayed on calm sections but crossed an eddy and capsized. She could
not summon the shoulder strength to right the canoe with her paddle. The
plaintiff has not kayaked since.
[302]
The plaintiff used to enjoy throwing a football and at one time could
throw 50 feet. In the summer of 2009, she tried lightly throwing a football.
She heard a loud snapping sound and felt a sensation that her shoulder had come
out, and again noticed a tingling sensation down her arm. She managed to get it
back in place. She stayed away from trying to throw the ball until after her
surgery. She can throw the ball a short distance, but no more than two or three
times and then it hurts too much. She no longer throws.
[303]
The plaintiff used to swim a lot. Before she moved to Vancouver,
she used to swim lanes. On returning to Ontario, she tried swimming, but she
found it had increased the pain too much, so she gave it up.
[304]
Before her accident, the plaintiff pushed the limits: she launched
off large jumps, looking for challenges. She could grasp her snowboard when she
was airborne. After she injured her knee in March 2010, after she went over a
small bump, she has done little snowboarding. She can still ski, minimizing use
of poles, but she has done so just once at Mt. Tremblant, in 2013. She manages
fine as its mostly legwork.
[305]
The plaintiff played recreational dodge ball after the accident.
She could not throw the ball well and spent most her time running around and
trying to avoid getting hit. As noted already, Mr. Savard testified. He
described the plaintiff as a competitive individual, a medium player, better
than some of the guys. He was conscious of his own painful shoulder caused by
sporting injuries and was focussed on that. He did not recall what the
plaintiffs limitations were. He recalled they had participated only six or
seven times.
[306]
Defence counsel pointed to discrepancies in how the plaintiff and
Mr. Savard characterized their participation. Mr. Savard acknowledged
on cross-examination, that he knew the plaintiff had been experiencing shoulder
problems; had undergone two MRIs; had seen a number of specialists; had attended
physiotherapy in 2010 and 2011; had mentioned problems with the lab work at PharmaGap;
would not lift anything heavy; and so on. He appreciated that the plaintiff had
ongoing shoulder problems. Even so, he said he could not recall her physical
limitations.
[307]
A couple of instances of a certain eagerness to jump in with an
answer helpful to the defendant were discernible on Mr. Savards part. I
am left with some misgivings regarding Mr. Savards motives, especially
given the points drawn out on cross-examination.
[308]
In any case, I find the plaintiffs descriptions of the level of
her participation and her limitations plausible.
[309]
As discussed in the section on homemaking capacity, the plaintiff
cannot perform chores that require work above the head – e.g., cleaning
windows. Work that requires her to hold her arm in front causes discomfort. She
had acquired enough carpentry and other home maintenance skills before the
accident that she could complete many home repair and maintenance projects, and
she enjoyed these projects.
[310]
She purchased a car with a centre console placed further forward
and positioned so she can rest her shoulder on it when she drives, but she cannot
drive for long periods now.
[311]
She can no longer pursue to the same extent as before her goal of
an exciting career in laboratory research that her dedication, hard work, and
innate talent had earned her, which she sees as a setback.
[312]
Her can-do, uncomplaining approach to challenges must be
considered. She is left with a chronic condition and impairment that, while not
always a salient feature of her life, limits her choices whereas before she
faced life without any.
[313]
Plaintiffs counsel referred to the following cases and submitted
an appropriate award would lie in the range of $90,000 to $120,000.
[314]
I have summarized those cases below:
a) Soligo v.
Turner, 2002 BCCA 73: the Court of Appeal dismissed an appeal of a $150,000
non-pecuniary damages award to a 27-year-old female plaintiff. She suffered
soft tissue injuries to her left shoulder, leaving her in constant pain and
unable to continue her high level of curling.
b) Kralik v. Mt.
Seymour Resorts Ltd., 2007 BCSC 258: $75,000 in non-pecuniary damages were
awarded to the 50-year-old male plaintiff, who suffered a shoulder fracture and
torn rotator cuff requiring surgery. He was left with ongoing permanent
weakness.
c) De Gaye
v. Bhullar, 2010 BCSC 1798: $70,000 in non-pecuniary damages were awarded to
the 24-year-old male plaintiff, who suffered head, neck, back and shoulder
injuries. The plaintiff suffered a mild shoulder impingement and was scheduled
to proceed with arthroscopic surgery.
d) Moussa v.
Awwad, 2010 BCSC 512: $75,000 in non-pecuniary damages were awarded to the 50-year
old male plaintiff, who suffered neck, shoulder and arm injuries. His shoulder
required surgery, and a negative medical prognosis was expected.
e) Power v.
White, 2010 BCSC 1084: $135,000 in non-pecuniary damages were awarded to the50-year-old
male plaintiff, who suffered a torn pectoral muscle and pain in his neck,
chest, arms, buttock and shoulder. His arm and shoulder limitations were
significant and permanent.
f) Eggleston
v. Watson, 2010 BCSC 890: $170,000 in non-pecuniary damages were awarded to
the47-year-old male plaintiff, who suffered very serious injuries, including
headaches; pain in his buttocks, legs and feet, back, neck and shoulder; a
rotator cuff tear; and accompanying psychological injuries.
g) Vershinin v.
Hayward, 2010 BCSC 1315: $70,000 in non-pecuniary damages were awarded to the
33-year-old male plaintiff, who suffered soft tissue injuries to his neck and
back. The plaintiff also suffered a right shoulder injury that manifested well
after the accident; it required surgery five years later.
h) Antonishak v.
Piebenga, 2012 BCSC 745: $60,000 in non-pecuniary damages were awarded to the32-year-old
male plaintiff, who suffered soft tissue injuries to his neck, arm and shoulder
that resulted in chronic pain and fatigue with a guarded prognosis of future
improvement. It was also found that the plaintiff would likely require shoulder
surgery with a six-month recovery period, to enable him to return close to his
pre-accident condition. But whether the plaintiff would undergo surgery was
uncertain.
i) Burtwell
v. McCaffrey, 2013 BCSC 886: $80,000 in non-pecuniary damages were awarded to
the 54-year-old female plaintiff, who suffered neck, wrist, shoulder, hand and
back injuries. The shoulder required surgery, but it was significantly improved
within three years with a good prognosis for complete recovery. The wrist also
required surgery as it caused considerable pain; she was left with an ongoing
loss of strength and restriction in flexion.
[315]
The defendant submits the appropriate award is between $7,000 and
$12,500, if causation of the plaintiffs ongoing shoulder problems has not been
proven, which it has. The defendant, in that event, submits the appropriate
range lies between $40,000 and $50,000. Counsel referred to Gregory v.
Insurance Corporation of British Columbia, 2010 BCSC 352, appeal partly allowed
2011 BCCA 144 [Gregory]; and Grant v. Diels, [1996] B.C.J. No. 1765
(S.C.) [Grant].
[316]
In Gregory, the plaintiff received $60,000 in
non-pecuniary damages. The plaintiffs primary injury was also the shoulder,
and she also underwent an arthroscopic procedure to address bursitis. But she
had no tears, subluxation, instability or arthritis. Nonetheless, the plaintiff
continued to have a throbbing, aching, sometimes burning sensation in her
shoulder. The court found that the injury was mildly impairing and likely
permanent.
[317]
In Grant, the plaintiff received $50,000 in non-pecuniary
damages. The plaintiffs primary injury was also the shoulder, and he underwent
two procedures to address his complaints. The first procedure repaired a
massive rotator cuff tear and a long head of the biceps dislocation; and the
second procedure removed a bone spur. He was left with some residual weakness,
but no shoulder pain.
2. Discussion and award for non-pecuniary damages
[318]
Both counsel acknowledged none of the cases intersect well with
the facts in this case.
[319]
I agree with counsel that the injuries in Grant and their
affects appear more serious. The reasons do not include his age. He was a
chiropractor with an established practice.
[320]
The plaintiffs age in Gregory, is not given, but it sounds
close to the plaintiffs age. The injuries effects on the plaintiffs career
are less pronounced and consequential than they are in this case. Additionally,
the plaintiff is more than mildly restricted in activities and her employment potential.
[321]
The plaintiffs cases do not support an award in the $90,000 to
$120,000 range.
[322]
Considering the cases, with a view to some consistency, but more
so to the circumstances that uniquely define this case, I find $80,000 is a
fitting award for non-pecuniary damages.
3. Loss of homemaking capacity
[323]
Two possible components lay claim under this heading: the
plaintiffs reduced capacity to complete some homemaking tasks, and her
inability to carry out home maintenance and repairs as she used to do.
[324]
A reasonable award for the loss of capacity to do housework is
appropriate whether the loss occurred before or after trial, S.R. v.
Trasolini, 2013 BCSC 1135, [Trasolini], considering Kroeker
v. Jansen, [1995] B.C.J. No. 724 (C.A.) [Kroeker]; and McTavish
v. MacGillivray 2000 BCCA 164 [McTavish].
[325]
Madam Justice Ballance gave a helpful overview of these claims in
Trasolini, beginning at para. 233. At para. 238, she notes the
important distinction between an award for loss of housekeeping capacity and an
award for cost of future care which includes a component for the cost of
replacing services the plaintiff can no longer perform.
[326]
An award for a loss of housekeeping capacity reflects the loss of
a personal asset. Whether the plaintiff has hired assistance before trial, or
is likely to do so in future, is not relevant to the analysis. This
distinguishes an award for loss of housekeeping capacity from damages awarded
for future cost of care. Here, the plaintiff is not seeking an award under that
heading.
[327]
Although an award for loss of housekeeping capacity, which also
encompasses home maintenance, repairs and yard work, is an assessment, not a
precise calculation. Evidence on the scope of the plaintiffs housekeeping
activities, and the number of hours devoted to them, is usually relevant
evidence, should it be awarded separately from non-pecuniary damages.
[328]
The plaintiffs husband scrubs floors, mirrors, the bathtub, and shelving
in the cupboards, etc. He resurfaced cupboards in the plaintiffs rental home,
grouted the tile, changed light fixtures, and performed other tasks that require
extended use of the plaintiffs shoulder. He cleaned the rental house for new
tenants. I found Mr. OShea a credible witness.
[329]
I find the plaintiff will be unable to clean windows or perform
other work that requires her to raise her right arm in front of her. Tasks her
husband has assumed were ones she performed without difficulty. She was handy
with tools, basic repairs and maintenance, and could maintain her rental
property mostly on her own. The couple will be moving to Montreal. They
purchased a three-bedroom home situated on one-half acre of land; it will
require much more upkeep than the small apartment they have been living in. The
plaintiff and her husband desire children. This will bring on additional
housekeeping tasks.
[330]
In summary, a loss of housekeeping capacity award reflects the
plaintiffs loss of the asset of their housekeeping capacity. It is
distinguishable from future housekeeping costs the plaintiff will incur: they form
part of a future care claim, see Kroeker; and McTavish. The
incapacity must relate to the plaintiffs impairments. The award should reflect
any contingencies .The loss is personal and the fact other family members may
be able to perform the task, or that they, or third parties have performed
them, does not detract from the plaintiffs entitlement to compensation. It
should cover the period before trial and after.
[331]
I award $20,000 under this heading to encompass not only loss of
housekeeping capacity per se, but also home maintenance, repair and yard work. I
have not conflated this with some items of special damages that compensate for
specific maintenance and repair services the plaintiff paid for before trial.
The focus here is primarily on the future.
IX.
Summary of damages awarded
[332] I
find the following summary of damages awarded proven and reasonable:
Non-pecuniary damages: | $80,000 |
Loss of homemaking capacity: | $20,000 |
Loss of past earnings: | $31,807 |
Loss of future earnings | $280,000 |
Future cost of care: | $8,000 |
Special damages: | $5,218.25 |
Reduction for contributory | 10% |
N.
Brown J.