IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140124

Docket: M121358

Registry:
Vancouver

Between:

Kwan Yee Chow

Plaintiff

And

Joseph Norbert
Schuler

Defendant

Before:
The Honourable Mr. Justice Kent

Oral Reasons for Judgment

Introduction

[1]            
The plaintiff claims damages in respect of a motor vehicle accident
which occurred on March 31, 2010. For the reasons that follow I find that:

1.     the
defendant is solely at fault for the accident;

2.     with
respect to the key causation issue in dispute between the parties, the accident
was indeed at least a contributing cause to the plaintiff’s foot injury; and

3.     damages
are therefore awarded as assessed below.

Credibility of the plaintiff

[2]            
Counsel for the defendant argued that the plaintiff’s credibility had
been so compromised in the course of this trial that no weight can be placed
upon any of her uncorroborated statements with respect to any matter of
substance. Her evidence, it was argued, was simply too unreliable.

[3]            
There were a number of examples of confusion in the plaintiff’s
testimony. One particularly compelling instance involved her evidence regarding
the use of the crutch following surgery. At her examination for discovery, the
plaintiff testified she used the crutches for about one month. During one day
of the trial she testified that she used the crutch for nine months following
the surgery, and on the following day she testified that it was a period of 3
to 5 months. Her explanation for the change in testimony was “yesterday I
couldn’t remember, now I can”.

[4]            
The difficulties in assessing credibility were compounded by the fact
that the plaintiff, who is now 78 years old, has no meaningful command of the
English language and testified in the Cantonese dialect and with the use of an
interpreter. This affected both the pace and the content of direct and cross
examination alike. Additionally, perhaps importantly in some instances, the
Cantonese dialect uses the same word for “foot” and “leg” as well as the same
word for “crutch” and “cane”.

[5]            
As was noted by Dillon J. in Bradshaw v Stenner, 2010 BCSC 1398
at para. 186, affirmed 2012 BCCA 296:

Credibility involves an
assessment of the trustworthiness of a witness’ testimony based upon the veracity
or sincerity of a witness and the accuracy of the evidence that the witness
provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50
D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness’ evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness’ testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to lie,
and the demeanour of a witness generally (Wallace v. Davis, [1926] 31
O.W.N. 202 (Ont.H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.)
[Farnya]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128
(S.C.C.)). Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole and
shown to be in existence at the time (Farnya at para. 356).

[6]            
I observed the plaintiff carefully while she was giving evidence. She
presented as a simple, humble, plainspoken person. I do not believe that she
was fabricating evidence or being deliberately untruthful. Nonetheless, some of
the evidence given by her appears to have been inaccurate and unreliable. I
therefore approach the plaintiff’s evidence in this case with caution and with
sensible regard for “the probabilities affecting the case as a whole”.

The Accident

[7]            
The accident occurred on the morning of March 31, 2010 at the intersection
of Dewdney trunk Road and 230th Street in Maple Ridge. The intersection is
controlled by traffic lights and has marked crosswalks. A scale diagram and
photographs of the intersection were put into evidence. The plaintiff had
crossed 230th Street going east to west on the south side of the intersection
using the crosswalk. She was attempting to cross from the south side of Dewdney
trunk Road to the north side of the intersection when the collision occurred.

[8]            
In addition to the evidence provided by the plaintiff herself, we also
have the benefit of the testimony of two independent witnesses, Ms. Nicole
Leslie and Mr. Van Kooten. Ms. Leslie, who was stopped on the north side of the
intersection on 230th street waiting to turn left onto Dewdney trunk Road, saw
the plaintiff check the pedestrian crossing light and then started to cross the
road. She saw the defendant’s vehicle come into the intersection and hit the
plaintiff. The driver was an elderly man and Ms. Leslie distinctly remembers
the driver looking at her even though it appears he was attempting to turn
right to proceed south on 230th Street.

[9]            
Mr. Van Kooten had stopped his car on 230th Street facing north. He observed
the plaintiff crossing 230th Street in the crosswalk immediately in front of
him. She seemed hesitant and confused, however she managed to cross the street
while the crossing light was illuminated in her favor. She was attempting to
cross Dewdney trunk Road, going north in the crosswalk, when she was struck by
the defendant’s vehicle. He estimates she had taken two or three steps from the
curb. He too saw the driver of the vehicle looking to his left i.e. in a
northerly direction up 230th Street. He cannot say if the driver actually
stopped at the stop line but he believes the vehicle was moving quite slowly
and suggested that the driver was perhaps performing a “rolling stop”.

[10]        
The plaintiff testified that she was meeting a friend at the Tim
Horton’s restaurant located at the northwestern corner of the intersection
between 230th Street and Dewdney trunk Road. She had alighted the bus on 230th
street and then crossed in the crosswalk from the east side of the intersection
to the west side, thereafter intending to cross north towards the Tim Horton’s.
She testified she awaited the pedestrian signal to light up in her favor and
she then started to cross in the crosswalk. She says she was approximately in
the middle of the first lane when she was struck by the vehicle.

[11]        
The defendant did not testify at the trial. Evidence was given by his
daughter, Ms. Debbie Hebel. Sadly, she described how her father had in recent
years developed symptoms of age related dementia. He is now in his late 80s and
his memory is very poor, both as to recent and past events. He is often unable
to recognize people or his surroundings. She described him as “incapacitated”.
She testified that the onset of these symptoms occurred approximately 5 years
ago and that her father’s condition has gradually deteriorated since that time.

Liability

[12]        
In argument, counsel for the defendant advised that his client does not
dispute the plaintiff was struck in the crosswalk. The defendant also concedes
there is no evidence to challenge the plaintiff’s assertion that she began to
cross when her light changed to walk or green.

[13]        
However, the defendant nonetheless argues that the plaintiff was guilty
of contributory fault. They submit that the plaintiff had fixed her attention
on the signal light on the other side of the intersection and was oblivious to
the oncoming presence of the defendant on Dewdney trunk Road. She should have,
so the argument goes, “refrained from entering the crosswalk until it was
either apparent that the defendant saw her and was prepared to yield, or was
far enough away to be able to yield once she was in the crosswalk”.

[14]        
I do not accept any of these arguments. The plaintiff clearly had the
right-of-way and the defendant clearly had the obligation to stop. He failed to
stop, indeed, the evidence suggests he was looking in the wrong direction and
may not have even noticed the presence of the plaintiff in front of his
vehicle. “With the right-of-way, the plaintiff was entitled to assume that
motorists would yield”: Traynor v. Degroot and Yellow Cab Company Ltd.,
2003 BCCA 483, per Donald J.A.

[15]        
In Bulatovic v Siebert, 2013 BCSC 240 at para. 82, the court
stated:

More generally, the reason for
the legal protection of pedestrians in crosswalks is the significant inequality
in speed and force between a motor vehicle and a pedestrian. A pedestrian is
entitled to walk through a crosswalk, taking reasonable precautions consistent
with having the right of way, knowing that she is safe.

[16]        
I find no fault with the manner in which the plaintiff conducted herself
in attempting to cross the road. Here, the fault lies entirely with the
defendant driver and he is 100% liable for the accident and any legally
compensable loss or damage sustained by the plaintiff as a result of same.

The plaintiff’s Injuries and the Test for Causation

[17]        
One of the major issues in this case is whether the accident caused all
of the injuries of which the plaintiff complains. The defendant does not
dispute that the plaintiff sustained a knee injury as a result of the impact
with the vehicle. However, the defendant strenuously disputes that the accident
in any way caused or contributed to the development of the plaintiff’s painful
“crossover toe” condition and other difficulties in the right foot. Hence, the
medical evidence must be carefully analyzed having regard to basic tort law
principles respecting causation.

[18]        
This is, of course, a case in negligence. To effect recovery, the
plaintiff must prove on the balance of probabilities that the defendant’s
negligent conduct actually caused the loss or injury that is the subject matter
of the claim.

[19]        
This is not a case involving two or more tortfeasors. Hence, for the
basic legal principles respecting causation applicable to this case, one need
go no further than Athey v Leonati, [1996] 3 S.C.R. 458 which explains:

1.     Causation
is established when plaintiff proves on a balance of probabilities that the
defendant’s tortious conduct caused or contributed to the injury;

2.     The
general but not conclusive test for causation is the “but for” test, which
requires the plaintiff to show that the injury would not have occurred but for
the negligence of the defendant;

3.     This
causation test is not to be applied too rigidly … Causation need not be
determined by scientific precision as it is essentially a practical question of
fact which can best be answered by ordinary common sense;

4.     It is not
necessary for the plaintiff to establish that the defendant’s negligence was
the sole cause of the injury … As long as it is part of the cause
of an injury, the defendant is liable;

5.     There is
no apportionment between tortious causes and non-tortious causes of the injury
The law does not excuse the defendant from liability merely because causal
factors for which he is not responsible also helped to produce the harm.

6.     Even if
the plaintiff’s pre-existing medical condition was a contributory cause to the
injury, the plaintiff is nonetheless 100% liable … This is the so-called “thin
skull” rule whereby the tortfeasor must take his victim as he finds him.

7.     However,
where a pre-existing medical condition exists which would have eventually have led
to the injury in due course and in any event, and the defendant’s negligent
conduct exacerbated or accelerated that injury, the defendant’s liability is
limited to the additional damage so caused … This is the so-called
“crumbling skull” rule.

The Medical Evidence

[20]        
The medical evidence in this case was provided by the plaintiff herself,
her family doctor [Dr. Eng], her podiatric surgeon [Dr.Yu], and an orthopedic
surgeon retained by the defendant to provide an opinion based on his review of
the medical records [Dr. Younger].

[21]        
The plaintiff testified that when she saw the defendant’s vehicle she
started to step backwards, however the vehicle nonetheless struck her right
knee, twisting her leg and causing her to fall to the ground on the right side
of her body. She said “the right side of my body was hurting really bad”.

[22]        
An ambulance was summoned to the scene. The evidence is confused whether
the plaintiff declined at the scene to go to the hospital or whether she was
transported to hospital but declined treatment upon arrival. The reason the
plaintiff gave for declining assistance was the language barrier. She says she
asked both the ambulance attendants and the hospital personnel whether anyone
spoke Cantonese and upon receiving a negative response, she simply got into a
taxi and went to her family doctor’s office. Dr. Eng speaks fluent Cantonese
and all of his dealings with the plaintiff were in that language.

[23]        
No issue was taken by any of the parties with respect to the expert
qualifications of the three medical witnesses nor to the admissibility into
evidence of their respective reports.

Dr. Eng

[24]        
Dr. Eng provided a report dated January 10, 2013. He describes how he
has been Ms. Chow’s family physician since May 2006, approximately 4 years
before the accident. While she had attended upon his office fairly frequently
during that a 4 year period, she had no complaints respecting pain or other
conditions in the lower extremities.

[25]        
Upon his examination on the day of the accident, Dr. Eng noted bruising
over the right knee, difficulty with passive and active extension and flexion,
and tenderness in the inside of the leg. X-rays indicated mild to moderate
degree of osteoarthritis of the right knee [a chronic pre-existing condition]
and some effusion [accumulation of fluid usually caused by trauma]. He
prescribed fairly strong pain medication.

[26]        
The plaintiff thereafter saw Dr. Eng on 10-11 occasions during the
months of May through early August. During that time he issued several
prescriptions and medical notes for, among other things, a walking cane and
home care services as well as medication for pain and anxiety.

[27]        
The medical file notes seem to indicate the first time the plaintiff
complained of pain in the right foot was in early August, some three months
after the accident. At that time, in addition to complaints respecting pain and
weakness in the right knee, the plaintiff also described pain in the toes of
the right foot. X-rays were ordered which indicated nothing abnormal, however from
that point forward the plaintiff continued to complain of pain in the right
foot and particularly in the toes. Eventually Dr. Eng referred the plaintiff to
Dr. Yu, a podiatric surgeon who has a specialty in the forefoot and who also
speaks fluent Cantonese.

[28]        
In addition to treatments from Dr. Yu, the plaintiff continued to attend
upon Dr. Eng on various occasions throughout the fall 2010 and the years since.
Dr. Yu performed surgery on the plaintiff’s foot in May 2011, apparently
without much success, and she continued to complain of ongoing pain and discomfort
in her foot in the subsequent visits to Dr. Eng and she continued to be
prescribed medication for both pain and insomnia. In his April 19, 2013 report,
Dr. Eng states following the plaintiff’s last visit on November 25, 2012 that
“her condition remains the same. According to my professional evaluation, this
patient will not get any better”.

[29]        
The report continues:

Clinically, from the start, she
complained about the pain in her right knee rather than the right foot. I
cannot give an account of the events that happened between the time of the
accident and the time of the discovery of the fractures. Maybe the subluxation
of the right toe was a secondary event as a result of the way she walked while
she was suffering from the pain. The sequence of development of complication of
the toe of the right foot is difficult to comprehend let alone explain.
However, in this condition, it doesn’t matter because the treatment is the
same. She underwent fusion of the second toe and release of the joint on May
2011 by Dr. Ian Yu, a podiatrist. Eventually, there was recurrence of
subluxation of the second toe and this condition is very prominent as of the
present. There were no other treatments that the podiatrist could offer that
may improve the patient’s condition. As a result of the subluxation, the
patient has walking difficulties and required appliances such as orthotics and
orthopedic shoes. She may suffer from permanent walking difficulty for which she
has to adapt and adjust for the rest of her life. As for medication, she had to
rely on Lyrica and Celebrex from time to time to relieve the pain. I do not
think the patient will be totally disabled from walking but she will have
permanent walking difficulty due to the pain of the right toe.

Dr. Yu

The podiatric surgeon, Dr. Yu, first saw the plaintiff on
September 7, 2010. His report is dated April 19, 2013 and in it he states the
plaintiff’s last visit was October 23, 2012. On initial examination he
diagnosed what is colloquially described by some as “crossover toe”, a
condition which was “acutely painful”. He ordered x-rays and subsequently a
bone scan/CT scan all of which revealed:

1.     Subluxation
and deviation of the second toe resulting in ongoing pain and deformity (the
“cross-over toe”);

2.     Degenerative
changes at the calcaneal cuboid articulation; and

3.     A bony
fragment at the superior aspect of the calcaneus (resulting from a previous
un-united fracture i.e. A break that had not healed properly).

[30]        
Dr. Yu recommended surgical correction of the toe deformity, an
operation which he eventually carried out on May 10, 2011.

[31]        
Postsurgical treatment included compression, manual manipulation and
physiotherapy modalities. On follow-up in March 2012, the plaintiff reported
improvement in the pain condition but there continued to exist some contracture
of the toe [tightening], some scarring from the surgery, and “slight malposition”.
In October 2012 Dr. Yu’s notes reflect a report of no pain by the plaintiff but
some deviation of the second toe remained. The plaintiff was offered the option
of further treatment such as amputation of the toe, but she declined.

[32]        
Dr Yu expresses the following opinion in his report:

This lady suffered traumatic injury to her right foot
resulting in subluxation and painful deviation of her right second toe, second
metatarsalphalangeal joint and fracture of her calcaneus which resulted in some
stiffness in her midfoot. Prior to her accident, she did not experience pain in
these areas. Although she may have had predisposing factors (ie. Flat feet, osteoarthritis,
early contractures of the toes) it was not until the accident occurred that
pain and deformity rapidly progressed. Therefore, my opinion is that the accident
resulted in the symptoms.

[33]        
Dr. Yu went on to suggest the plaintiff’s condition could be managed
with firm soled, extra volume shoes. Some concession on the types of
recreational activities may be required and he suggested she limit same to “low
impact activities”.

[34]        
On cross-examination Dr. Yu acknowledged his conclusion as to causation
[i.e. the MVA] was influenced by the plaintiff’s recitation of pain complaints
following the accident. He was seemingly unaware that Dr. Eng’s records
regarding the plaintiffs visits to the latter’s office for three-month period
following the accident did not reflect any such pain complaints. Nonetheless,
when pressed, he reiterated the opinion that because firstly, the plaintiff had
no foot pain issues before the accident, and secondly, it wasn’t until after
the accident that the painful crossover toe condition developed, he does indeed
believe the accident contributed to the development of the latter.

Dr. Younger

[35]        
Dr. Younger was retained on behalf of the defendant to review the
plaintiff’s medical records, including the two medical legal reports provided
by doctors Yu and Eng. He is an orthopedic surgeon who specializes in foot and
ankle conditions. It is his opinion which is the source of one of the key
disputes in this claim, namely, whether the foot problems experienced by the
plaintiff were caused or contributed to by the accident.

[36]        
Dr. Younger’s review of the medical records and the x-rays/scans of the plaintiff’s
foot lead him to conclude that the MTP joint deformity [the “crossover toe”]
and the calcaneocuboid joint injury predated the accident. Indeed, he opines
the latter involved a fracture which may have occurred some 10 to 30 years
earlier leading to the current arthritic change in the joint.

[37]        
Dr. Younger expresses the opinion “it may be possible that [the two
conditions] may have been aggravated by the accident” although if so “I would
have expected her to complain of discomfort to her family doctor earlier than 4
to 5 months after the accident”. He expresses agreement with Dr. Yu’s
assessment that there was some pre-existing deformity of the second MTP joint
and he “suggests based on the lack of recorded symptoms or findings around the
time of the accident, that there is little relationship between the accident
and the deformity and discomfort reported in her forefoot.”

[38]        
Dr. Younger was subjected to rather effective cross-examination (at
deposition). He acknowledged he had not met or examined the plaintiff and
obviously had not taken a medical history from her. He knew nothing about the
mechanics of the accident nor of the plaintiff’s lifestyle or activities before
the accident. While his review was based upon the medical records provided to
him, he also acknowledged receiving an instruction letter from defence counsel
advising and directing as follows:

You will note that Ms. Chow has
suggested to Dr.Yu that she had pain in her foot immediately after the motor
vehicle accident, yet she did not report this at the time to her family
physician. Thus I will maintain my request that you assume there was no foot
pain until August 2010.

[39]        
Dr. Younger does not himself use the terminology “crossover toe” but he
recognizes that others in his field do so. He agrees it is a progressive
condition and is a deformity that often begins with pain at the NTP joint and
progresses to the point where the second toe crosses up and over, eventually
coming to lie on top of the surface of the great toe. He agrees various factors
can contribute to this deformity both intrinsically anatomic as well as
extrinsic causes including trauma, high fashion footwear, and the like.

[40]        
Dr. Younger agreed that when the plaintiff was first seen by Dr. Yu the
second toe on the plaintiff’s right foot was already subluxed and had deviated
to the point where it had already crossed over the great toe. He also agreed
that on the plaintiff’s 19 visits to Dr. Eng in the years preceding the
accident there was nothing reflected in any of the medical records indicating
onset of any pain or difficulty in the feet or, indeed, of any “crossover toe”
phenomenon.

Conclusion as to Causation of Injury

[41]        
In reaching a conclusion as to the etiology of the plaintiff’s foot
injury I have been cautious in assessing the plaintiff’s own testimony as to
the onset and duration of pain in that area. As indicated earlier I do not find
the plaintiff to have been deliberately untruthful but some of her evidence is
unreliable.

[42]        
Both doctors Eng and Yu have opined that the accident caused or
contributed to the development of the painful crossover toe condition later
diagnosed in the plaintiff’s foot. Dr. Younger disagrees, in large part because
of the absence in the notes of pain complaints in that area for several months,
but also because the x-ray/scan images suggest injury years earlier and
resulting arthritic change. The weight to be attached to Dr. Younger’s opinion
is reduced to some degree by the absence of any examination/interview of the plaintiff
and the nature of the instructions given to him by counsel i.e. to ignore some
of the pain complaints recited in the medical records/reports.

[43]        
In any event, what is clear from the evidence is that before this
accident this 74-year-old lady was very active, walking, shopping, going to the
gym and swimming pool at the community center and, in particular, undertaking
her favorite recreational activity of ballroom dancing several times a week for
two or more hours on each occasion. Before the accident, there was no complaint
of pain or difficulty in the feet even if, as may well have been the case, the
plaintiff had sustained some sort of undiagnosed fracture injury many years
earlier and she also may have had pre-existing conditions such as flat feet,
some osteoarthritis, and even early contractures of the toes.

[44]        
All of this changed in the months following the accident. The defendant
concedes the plaintiff sustained injury to the knee, she was treated with pain
medication, her mobility was impaired for some time requiring the use of a cane
or crutch, and that she was unable to perform most of her usual household
duties in the home [cleaning, cooking, shopping, and so on] such that external
assistance was required, all as prescribed by her family physician.

[45]        
It may be that the medical records do not specifically reflect
complaints of pain in the right foot either at the time of the accident or in
the subsequent 2 to 3 months of convalescence. However, it is established on
the evidence that:

1.     The
crossover toe phenomenon was present on examination in early August 2010, a
phenomenon that did not exist before the accident;

2.     This is usually
a progressive condition and hence must have started developing some time before
it was first diagnosed;

3.     Trauma can
indeed be a factor causing or contributing to the development of this
condition;

4.     The immediate
disability arising from the knee injury and the consumption of pain medication
following the accident may have contributed to any delay on the part of the
plaintiff in complaining to her family physician of pain in the right foot
[even assuming such delay actually occurred. … the plaintiff’s testimony is of
course to the contrary];

5.     Compensatory
changes in weight-bearing gait while limping or hobbling around following
injury to the knee can trigger subluxation of the toe and foot pain (according
to both Drs. Eng and Yu), and

6.     The
plaintiff had engaged for many years before the accident in ballroom dancing
several times a week, an activity that places a fair amount of pressure on the
forefoot and toes, all without any complaints of pain or other medical
difficulty with the feet.

[46]        
Based on the totality of the evidence, and bearing in mind that the
issue of causation is essentially a practical question of fact often best
answered by ordinary common sense, I find on the balance of probabilities that
the trauma sustained as a result of the motor vehicle accident was at least a
contributory cause of the plaintiff’s “crossover toe” condition first formally
diagnosed in early August 2010. The defendant is therefore 100% liable for all
of the injuries complained of in this action and damages will be assessed
accordingly.

Damages

[47]        
The plaintiff experienced periods of ongoing pain and disability
following both the initial motor vehicle accident and also the foot surgery
which occurred on May 10, 2011. Her doctors wrote notes confirming that
housekeeping assistance was required and such services were provided by three
different individuals at different times. The defendant does not dispute that
this occurred nor does the defendant dispute the amounts paid by the plaintiff
to these individuals in that regard.

[48]        
The book of receipts and cheques related to the amounts claimed as
special damages was put into evidence by consent and marked as Exhibit 3. It
reflects not only the housekeeping services referred to above but also
substantiates the amounts paid on account of physiotherapy, acupuncture,
counseling services, custom footwear and medication. The amounts total $9,189.45,
which is the amount I award as special damages.

[49]        
The plaintiff also claimed damages on account of additional costs
incurred for eating out and take out food delivered during the periods of time
that she was unable to do grocery shopping and the usual cooking of household
meals for herself and her husband. Her husband, who died last year, suffered
from a number of debilitating medical conditions such that he was unable to
contribute to household maintenance or cooking during the periods of the
plaintiff’s disability. The amount claimed, which purports to be the difference
between the “usual” cost of feeding oneself and the higher cost of buying
take-out food, was $1,000-$1,500, however no receipts were put into evidence and
the plaintiff’s testimony as to quantum is vague. I will award the sum of $500
as special damages under this heading.

[50]        
These special damages shall, of course, attract interest pursuant to the
Court Order Interest Act, R.S.B.C. 1996, c. 79.

[51]        
The plaintiff testified that she no longer has need of any housekeeping
assistance and that, indeed, this has been the case since four months after the
surgery in May 2011. The plaintiff nonetheless makes a claim for damages in the
amount of $8,000 for “past loss of housekeeping capacity”. The theory of
recovery, so I am advised, is that the plaintiff’s housekeeping capacity was
impaired for a period of approximately 18 months in aggregate following both
the motor vehicle accident and the surgery, that she paid and now has been
compensated for five months of replacement housekeeping services, but there
nonetheless remains a 13 month period of impairment to various degrees for
which compensation is warranted.

[52]        
I decline to make any such award. To the extent any additional loss of housekeeping
capacity was experienced, it is included in the award for non-pecuniary general
damages set out below.

[53]        
Under the heading “cost of future care” the plaintiff also makes a claim
on account of replacement of “extra depth custom made shoes” that will be
required in the future to accommodate the plaintiff’s right foot deformity. The
plaintiff has produced one receipt for such custom-made shoes dated July 12,
2012 in the amount of $1,350. It seems reasonable that such footwear may have
to be replaced in the future and I make an award of $2,000 under this heading.

General Damages

[54]        
The primary dispute between the parties with respect to general damages
was, of course, whether any such award should take into account the medical problems
experienced with respect to the plaintiff’s right foot. The defendant submitted
the plaintiff had suffered only a soft tissue injury to her knee in this
accident, a condition which had largely resolved 4 to 5 months later and one
which presently causes only occasional discomfort. The defendant suggested that
an award for general damages in the amount of $20,000 would be appropriate to
compensate for the plaintiff’s pain, suffering, loss of enjoyment of life and
loss of amenities in that regard.

[55]        
The defendant submitted that in the event of a finding that both the
knee and foot injuries were causally related to the accident, then the general
damages figure of $60,000 assessed in Russell v. Parks, 2012 BCSC 1128 would
be appropriate as a starting point. That case involved both a soft tissue
injury to the plaintiff’s knee and a fractured metatarsal in his foot, although
the foot recovered quickly while the knee injury proved more problematic and
was projected to remain symptomatic and partially disabling into the future.
The plaintiff was 51 years old at the time of trial. He suffered from
pre-existing asymptomatic arthritis in both knees as well as foot and ankle
pain. The $60,000 assessed as general damages was reduced to $45,000 to reflect
the risk the pre-accident conditions might have affected the plaintiff’s life
had the accident not occurred.

[56]        
The plaintiff claims that non-pecuniary general damages should be
awarded in this case in the range of $50-$65,000. Particular emphasis is placed
on the so-called “golden years doctrine” which is said to justify a higher
award if an injury to an elderly person “takes away the ability to do a
favorite activity during those precious years”. Here, counsel is particularly
referring to the plaintiff’s inability to return to ballroom dancing, an
activity that does indeed appear to have been a major component in the plaintiff’s
pre-accident enjoyment of life.

[57]        
The plaintiff refers to Bevacqua v. Yaworski, 2012 BCSC 880,
where an award of general damages in the amount of $85,000 was made to a
plaintiff who before the accident was an active, independent woman of 76
clearly taking pleasure in her life. Following the accident, she was unable to
look after herself and took a long time to even get back to walking. The court
found that she continued to have pain and suffering and that her enjoyment of
life was markedly diminished.

[58]        
There is no doubt that the plaintiff did suffer pain and disability both
in the immediate aftermath of the accident and the later development of
“crossover toe” and the surgical treatment of same. Her mobility was
significantly affected and she has been unable to fully return to all of her
pre-accident recreational activities including, of course, ballroom dancing.
However, while the plaintiff’s pain and discomfort has not completely
disappeared, she testified she presently only experiences pain if she walks too
long or too fast or if she otherwise puts pressure on her leg in attempting to
move objects or the like.

[59]        
The plaintiff did seek counseling assistance from a professional
psychologist at the suggestion of her family doctor. She was experiencing
nightmares about being struck by vehicles and she was having difficulty
sleeping. She developed a fear of crossing the road. She testified that the
counseling did assist and that today she has no such fears and nightmares are
rare.

[60]        
An award of general damages for non-pecuniary loss must be fair to all
parties and fairness is measured against awards made in comparable cases. This,
of course, is only a rough guide as each case depends on its own unique facts.
The factors usually considered in making these types of awards, as outlined by
the Court of Appeal in numerous cases including Boyd v. Harris, 2004 BCCA146
and Stapley v. Hejslet, 2006 BCCA 34, include:

a.     Age of the
plaintiff;

b.     Nature of
the injury;

c.     Severity
and duration of pain;

d.     Nature and
extent of resulting physical and mental disability;

e.     Emotional
suffering;

f.      Impairment
of life including family, marital and social relationships; and

g.     Loss of
lifestyle.

Here, having regard to all of these factors as well as the
cases cited by counsel, I award the plaintiff general damages in the amount of
$50,000.

Summary

[61]        
In summary, damages are awarded as follows:

[62]        
Ordinarily costs would follow the event. However, if the parties are
unable to agree on costs, they may speak to the issue.

“Kent J.”