IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150109

Docket: 12-4341

Registry:
Victoria

Between:

Beverly Elaine
Esther Tenhunen

Plaintiff

And:

Kim Tenhunen

Defendant

Before:
The Honourable Mr. Justice Johnston

Reasons for Judgment

[1]            
On May 11, 2011, the plaintiff, Beverly Tenhunen,
slipped and fell on a ramp outside a home rented by her daughter, the defendant,
Kim Tenhunen. Beverly Tenhunen brings this action for damages flowing from
injuries she suffered in the fall.

[2]            
The defendant has been a partial paraplegic
reliant on a wheelchair for mobility since she fell from a horse at age 14 or
15. The defendant is now 42 years old. By her account, an account with which
the plaintiff agrees, the defendant is resourceful, capable and self-reliant in
spite of her condition.

[3]            
The defendant began to rent the home in
question, at 6115 Seabroom Road in Sooke, B.C., in late 1998. There was no
wheelchair access to the home, which made it difficult for the defendant to get
in and out. At first, she had to transfer from her wheelchair to the highest
outside step, throw her wheelchair up on the porch, and bump herself up to door
level. The landlord took the position that the defendant could make what
modifications she wished to the house, as long as it did not cost the landlord
money. The defendant had limited resources of her own: she has largely gotten
by on disability payments that now amount to $886 per month.

[4]            
At some point, a neighbour for whom the
defendant had acted as dog sitter, tore down a shed and gave the defendant the
floor boards. The defendant did her own work to repurpose the donated floor
into a ramp, which led up to the front door of the house.

[5]            
The defendant says she gained weight, and
required a wider wheelchair. The new wheelchair would not fit between a post
outside the front door and the side of the house, so she built a deck off the
front porch to get around the post. It is not clear when this happened, but I
accept that the defendant did most of this work on her own.

[6]            
The front porch and door began to rot, and the
landlord would not fix them, so the defendant blocked off the front door from
the inside, and built a plywood deck and ramp leading from another door at the
side or end of the house. Both parties referred to this as the back door.

[7]            
The defendant has or had a large dog that she
kept in the yard off the back door, and she found that using that ramp often resulted
in dog feces on her wheelchair wheels. In 2005, the defendant decided to build
a new ramp, the one in question.

[8]            
The defendant had saved perhaps $250 to $300 and
that was enough for her to build a deck and ramp. The defendant’s cousin worked
at a hardware store so the defendant was able to get screws and mis-tinted
paint at a discount. She used screws because she intends to dismantle the ramp
and deck and take the materials with her if she moves. The mis-tinted paint was
outdoor paint returned by dissatisfied hardware store customers.

[9]            
At the defendant’s request, the plaintiff
delivered the materials for the new deck and ramp, and placed concrete building
blocks where directed by the defendant as foundation supports.

[10]        
The defendant designed the deck and ramp
herself, based on her own experience building ramps in the past. Her experience
included the ramps mentioned above, and also one she built at a log cabin
outside Thunder Bay. She said the ramp in Thunder Bay had been built by her
uncle and cousins, but they did not do it right. It was not at the right pitch,
so she did it over again.

[11]        
The defendant had once been told by an
occupational therapist that a ramp should run twelve inches for every inch of
rise, so that was what she aimed for when designing and building this ramp. She
says this ramp did not end up with that ratio because of uneven ground. The
defendant did not measure to see how close she had come to the one in twelve recommendation,
as the ramp worked for her. She said the ramp was not designed for pedestrians.

[12]        
The defendant did not consult, nor did she
attempt to comply with, the British Columbia Building Code when she designed
and built the ramp.

[13]        
Part of the materials the plaintiff delivered to
the defendant included roofing shingles, which the defendant intended to put on
the surface of the ramp to increase traction. The shingles were stolen from in
front of the house before the defendant could install them. She could not
afford to replace them immediately, then became used to using the ramp without
them and forgot about it. After the plaintiff fell, the defendant obtained new
shingles and stapled them to both of the ramps. These shingles are shown in
photographs taken after the plaintiff fell, and show ordinary asphalt type
roofing shingles. No one testified that the shingles presently on the ramps are
similar to those the defendant intended to put down when she built the new ramp,
but that is a fair inference from the evidence, and one I draw.

[14]        
In 2005, when the defendant painted the wood before
screwing the ramp together, she threw on dirt and grit while the paint was
still wet. Unfortunately, any skid resistance this achieved had worn off by
2011.

[15]        
As built, the structure is a deck that connects
the front and back doors, with two sets of stairs, and two ramps leading off
it. There is a set of stairs leading to a deck or porch at the front door, a
set of stairs leading to a deck off the back door, and ramps at both doors.

[16]        
It is the ramp built in 2005, leading to the
deck about halfway between the front and back doors, which is in question here.

[17]        
The ramp area is built so that there is a
landing at the top, then a ramp down to a lower landing, from which another
ramp switches back to run to the ground. The overall shape is that of a “U”.

[18]        
In the photographs entered in evidence, one can
see that there are railings attached to posts running around the upper deck
area, except where broken by stairs or ramps. One of the railings is at the top
of the posts, and another is about mid-way between the deck and the top of the
posts.

[19]        
There are similar railings running down the
outside of the upper portion of the ramp, which switch back and run down the
inner portion of the lower ramp to ground level. The words “outside” and
“inside” here are based on the house as being the “inside” so that anything
away from the house I refer to as “outside”.

[20]        
There is also a handrail, lower than the top
railing, which runs down the inside of the upper portion of the ramp, and
another running down the inside portion of the lower ramp.

[21]        
The lower landing, separating the two ramps, has
a railing around it, as well as a middle rail.

[22]        
There is nothing running down the outside of the
lower portion of the ramp, nor was there on May 11, 2011, when the plaintiff
fell.

[23]        
The house and ramp are surrounded by tall fir
trees, and it was not uncommon for the trees to drop branches, needles, and
pollen on the deck and ramp areas.

[24]        
At some time there had been a sign posted on
lattice on the outside of the upper deck, over the upper portion of the ramp.
That sign said something to the effect of “use stairs” and had an arrow
pointing to the back of the house. The defendant said it was intended to inform
people that there were stairs available at the rear, as those stairs were
hidden by the deck and ramp structure. The sign had blown off at some point
before May 11, 2011.

[25]        
Mr. Damant is an architect hired by the
plaintiff to examine the defendant’s ramp in light of Building Code
requirements. Mr. Damant went to the Seabroom house and made his own
measurements in September 2014. He spoke to the plaintiff on that occasion, as
she was living at Seabroom at the time, having informally traded with the
defendant her own apartment in Victoria so that the defendant could be closer
to the university.

[26]        
Mr. Damant measured the height of the deck at
various places, and said that it ranged between 23 and 26 inches above grade,
with the difference attributable to uneven ground rather than changes in deck
level.

[27]        
Mr. Damant has referred to two articles in the
Building Code. The first, subsection 9.8.6, deals with pedestrian ramps
connected to houses; the second, Article 3.8.3.3, deals with access ramps for
persons with disabilities.

[28]        
Mr. Damant’s opinions include:

·      
the ramp as built, particularly the lower
portion where the plaintiff fell, was steeper than permitted by the Code for
ordinary pedestrian ramps and for accessible ramps;

·      
if held to the Code standard for accessible ramps,
the ramp in question is too wide, given the amount of slope. He does not say
this is so if the ramp is held to the standard applicable to an ordinary
pedestrian ramp;

·      
where handrails are provided, they do not always
conform to the height requirements of the Building Code, but more importantly,
he points to the lack of any handrail on the outside of the lower ramp.

[29]        
In his report, Mr. Damant also says that the
deck and ramp are deficient in that the landings are not as deep as required by
the Code for accessible ramps, the structure as built does not have three-inch
curbs as required for accessible ramps, and the guards or upper and middle
railings are not Code-compliant.

[30]        
As none of these factors have played a part in
the plaintiff’s fall that I have been shown, I disregard them.

[31]        
The last criticism leveled by Mr. Damant refers
to slip resistance. He notes that the Code requires slip-resistant finish or
strips for ramps, and that the ramp in question had a painted smooth wood
finish. Mr. Damant comments: “Painted wood, when wet, becomes slippery. Often
wood decking is textured with grooves or a granular coating to increase
traction and address the intent of the code.” His report goes on to state that
the Code does not specify a minimum co-efficient of friction, but that the
defendant’s efforts here do “not demonstrate intent to address this
requirement.” By this, I take Mr. Damant to be stopping short of saying that
the ramp was not compliant with Code slip-resistance requirements, but to be
questioning whether the defendant, with her painted wood surface, intended to
comply with the Code. This is not particularly helpful.

[32]        
The ramp and deck at Seabroom were well known to
the plaintiff by May 11, 2011. She had moved from Ontario to Vernon in
1997, and between then and 2004 she visited the defendant at Seabroom. In
October 2004, the plaintiff’s domestic relationship ended and she moved from
Vernon to Victoria, where she moved in with the defendant. The plaintiff lived
at Seabroom until September 2009 when the defendant returned from a year in
Japan and the plaintiff’s son moved to Victoria from Fort St. John. At that
time, the plaintiff, her son, and her son’s fiancée moved to a house on Beta Street
on the outskirts of Victoria. While she lived on Beta Street, the plaintiff visited
Seabroom once or twice a week to check on the defendant. She remained at Beta
Street until her son moved back to Fort St. John in 2012, at which time the
plaintiff moved back to Seabroom.

[33]        
While she lived at Seabroom before the accident,
the plaintiff regularly used the back door to get in and out. To get at it, the
plaintiff would walk past the ramp and use the three stairs leading to that
door. If she were bringing groceries home with her, she would walk across the
bottom of the lower ramp to place them on the upper landing, then walk around,
go up the stairs and retrieve the groceries. The plaintiff testified that while
she lived at Seabroom, she would sweep the deck and ramps once a month or so,
although she said that she would stand on the ground to do so. Even allowing
for an appearance that the plaintiff was trying to minimize her opportunities
to familiarize herself with the ramp, I find that while she lived at Seabroom,
and when she did not live there but visited her daughter there, the plaintiff
did not frequently use the ramp in question to get in and out of the house.

[34]        
On May 11, 2011, the defendant was ill: she had
a pressure sore and a fever, and she texted the plaintiff to come and help her.
There had been a storm not long before that day, which had brought down
branches, needles and other debris. The defendant had not been able to clear
off the deck and ramps because of her illness. More than one of the fallen
branches was big enough to have made holes in the deck or ramp, and one had
broken a railing on the upper portion of the ramp here in question. The
defendant had managed to move some of the debris aside, and to lay down a piece
of plywood over a hole in the upper ramp caused by a falling branch, in spite
of her illness.

[35]        
The plaintiff traveled to Seabroom by bus,
arriving about 3:00 p.m. It had rained that day, but it was not raining when
the plaintiff arrived. The ground was wet.

[36]        
The plaintiff noted debris in the defendant’s
yard, and pine needles on some parts of the ramp. The plaintiff went to the
back steps, the ones she ordinarily used to get to the back door, to find they
were blocked by a large fallen branch. The plaintiff then went back to the
steps leading to the front door, went up and found that the deck between the
front porch and the rear door was obstructed by a number of pieces of 2 x 4
lumber, uncollected newspapers obviously thrown there by a delivery person, and
blown down tree debris. The defendant described blue stacking boxes, a dresser
and a toy box being on the deck between the front and back doors, but did not
mention lumber as she was not asked about it.

[37]        
The plaintiff may or may not have picked up some
of the newspapers on her way to the back door: her evidence on that unimportant
point conflicted between trial and discovery.

[38]        
The plaintiff spent a couple of hours inside the
house, tidying up and making some food for the defendant, then decided to
leave. She took with her a bag of garbage from the house to put into a garbage
bin beside the corner of the lower landing of the ramp. She carried the garbage
bag across the deck to the railing and threw it towards the garbage bin,
intending that it land on the ground near the bin, but it fell short to land on
the lower landing of the ramp. She thought she heard the defendant call to her,
so she went back into the house briefly, then came outside again. The plaintiff
testified the deck between the back door and front porch area was still
obstructed by lumber, papers and blow-down debris, the rear stairs that she
ordinarily used were still obstructed by the large branch, and, as she had to
get the garbage into the bin so raccoons would not get at it, she went down the
ramp. When she got to the lower landing, she picked up the garbage bag and
dropped it over the railing to the ground, then, with her left hand on the
railing, turned to go down the lower portion of the ramp.

[39]        
The plaintiff testified that she knew there was
a handrail on the inside of the lower ramp, but there seemed to be more tree
pollen on that side. She testified that she looked down and the first two
boards on the outside of the ramp appeared clear to her, so she let go of the
railing and stepped forward onto the ramp with her left foot. The plaintiff
testified that she immediately went into a skid, tried to regain her balance
but could not reach the rail on the inside of the ramp, and she fell to the
ground alongside the bottom of the ramp.

[40]        
The plaintiff was too winded by her fall to call
for help at first, and she had too much pain in her left knee to get up on her
own. A woman passing by in a car stopped to help her up, and she sat on the
ramp until an ambulance arrived.

[41]        
The defendant, who thought she heard something
outside, got out of bed and when she opened the door saw the plaintiff lying on
the ground, and then saw the passer-by help the plaintiff get up on the ramp.
The defendant recalls that it was misting or raining a fine rain when she
looked out because it felt so good on her feverish face. 

[42]        
Before the ambulance arrived, the plaintiff
looked back at where she fell and saw a skid mark she estimates between 12 and
18 inches long, 6 to 8 inches from the outside edge of the lower ramp.

[43]        
From the evidence, I conclude that the plaintiff
slipped on the damp painted surface of the ramp, in part because the slope of
the ramp was greater than was safe, and that she fell to the ground in part
because there was no guard or railing on the outside of the lower ramp to keep
her from falling off.

[44]        
I find further that the plaintiff injured her
knee when she fell to the ground.

Liability

[45]        
The plaintiff pleads both negligence and breach
of the Occupiers Liability Act, R.S.B.C. 1996, c. 337. Counsel was
unable to explain how negligence, apart from that arising under the Act,
might apply to this case, and it was clear from the argument that the
defendant’s liability stands or falls on whether she breached her duty under
the Act. The relevant statutory provisions read:

3.  (1)     An occupier of premises
owes a duty to take that care that in all the circumstances of the case is
reasonable to see that a person, and the person’s property, on the premises,
and property on the premises of a person, whether or not that person personally
enters on the premises, will be reasonably safe in using the premises.

 (2)     The duty of care referred to in subsection (1) applies
in relation to the

 (a)     condition of the premises,

  (b)     activities on the premises, or

 (c)     conduct
of third parties on the premises.

 (3)     Despite subsection (1), an occupier has no duty of
care to a person in respect of risks willingly assumed by that person other
than a duty not to

 (a)     create a danger with intent to do harm to the
person or damage to the person’s property, or

 (b)     act
with reckless disregard to the safety of the person or the integrity of the
person’s property.

[46]        
From the authorities provided by the parties,
certain principles can be stated:

 1.         Section 3(1) of the Act imposes a duty
of care on occupiers and defines a single standard of care, thus making it
unnecessary to consider any of the former common law standards applicable to
different categories of visitors to premises: Weiss v. Young Men’s Christian
Assn. of Greater Vancouver (1979), 11 B.C.L.R. 112 at para. 16 (C.A.);

 2.         The standard of care under the Act is
reasonableness, the same as under the general law of negligence: Newsham v.
Canwest Trade Shows Inc., 2012 BCSC 289 at para. 89;

 3.         What
is reasonable depends on the facts of the case, including the likelihood of a
known or foreseeable harm, the gravity of that harm, and the burden or cost of
avoiding the injury: Ryan v. Victoria (City), [1999] 1 S.C.R. 201 at para.
28;

 4.      In Bauman v. Stein (1991), 78 D.L.R. (4th)
118 at 127 (B.C.C.A.), Wood J.A. said:

 Section
3 of the Occupiers Liability Act does not create a presumption of
negligence against "the occupier of the premises" whenever a person
is injured on the premises. A plaintiff who invokes that section must still be
able to point to some act (or some failure to act) on the part of the occupier
which caused the injury complained of before liability can be established.

  See also Chapman
v. Bullock, 2002 BCSC 1805 at para. 8;

 5.         A mere breach of the Building Code does not
establish liability under the Act: Wright v. McArthur, 2005 BCSC
1797 at paras. 16 and 17;

 6.         An adult without disabilities does not need to
be warned of risks arising out of the exigencies of everyday life, and failure
to warn of such risks does not breach a duty owed to such person: Malcolm v.
B.C. Transit (1988), 32 B.C.L.R. (2d) 317 at 318-319 (C.A.); and

 7.         There is nothing in the occupier’s duty that
relieves a visitor from a duty to take reasonable care for their own safety.

Analysis – Liability

[47]        
The defendant knew that other people used the
ramp she had built. She knew that when she built the ramp, she had not managed
to meet the target she had set herself, of twelve inches of length for every
inch of rise, yet she did not measure to see how much steeper it had been built.
The defendant had planned to put down roofing shingles to assist with traction,
and when hers were stolen, tried to add traction by throwing dirt onto paint
that was not quite dry. The defendant had planned to put a guard and railing on
the outside of the lower ramp, but ran out of lumber and money when she built
the ramp in 2005. Given the defendant’s circumstances, it may be understandable
and even excusable that no guard or rail was installed in 2005, or that no
shingles were immediately purchased to replace the ones stolen in 2005.
However, in my view, it was not reasonable that the defendant did nothing about
a guard, handrail, or shingles between the time of initial construction and the
plaintiff’s fall some six year later.

[48]        
The defendant’s explanation, “out of sight, out
of mind,” which I take to mean that she simply forgot about the guard, handrail
and shingles, is not reasonable in my view.

[49]        
The ramp was not safe for a combination of
reasons: the slope was too great, and there was no guard or handrail on the
outside. The plaintiff must have known there was no outside guard or handrail
from when she lived at Seabroom and from her many visits, but she would not
necessarily have known that the lower ramp was steeper than it should have
been.

[50]        
The defendant knew that she was living below
tall trees and that the trees dropped needles and branches when it was windy.

[51]        
The plaintiff also knew this from her time
living at Seabroom and her many visits to the defendant.

[52]        
Between plaintiff and defendant, the defendant
knew the lower ramp was steeper than she had been told it should be, and as it
turned out, steeper than permitted by the Building Code for either access or
pedestrian ramps. I infer that the Building Code standards for pedestrian and
access ramps were set at least in part because those standards were considered
necessary to achieve minimum safety for persons using either type of ramp.

[53]        
I find that both parties knew that by 2011 there
was nothing but the painted wooden surface of the lower ramp to walk on, and it
would be in the contemplation of each that this surface could be slippery when
damp.

[54]        
I find that the ramp surface on the inside
portion of the lower ramp, near the handrail, appeared to have more debris than
the outside portion, at least where the plaintiff first stepped off the
landing.

[55]        
I find that the defendant failed to take
reasonable care for the safety of those, including the plaintiff, who she knew
or ought to have known would use the lower ramp. That failure consisted of
building too much slope into the ramp, not providing a guard or handrail on the
outside, and not making some effort to enhance traction between 2005 and 2011.

[56]        
I do not view this as a case where the defendant
is relieved from a duty of care because the plaintiff willingly assumed the risk,
a defence available under s. 3(3) of the Act. The defendant has not
directly argued that the plaintiff willingly assumed the risks of walking down
the ramp, but may have indirectly raised the question by arguing that the
plaintiff’s contributory negligence is overwhelming and by choosing to proceed
down the ramp, the plaintiff was the author of her own misfortune.

[57]        
In Milina v. Bartsch (1985), 49 B.C.L.R.
(2d) 33 at 60 (S.C.), McLachlin J., then a judge of this court, said of the
statutory defence the following :

A further
defence available under the Occupiers Liability Acts of both Ontario and
British Columbia, arises from the provisions of those Acts that an occupier
owes no duty of care to a person in respect of risks willingly accepted by that
person as his own risks: Occupiers Liability Act (B.C.), s. 3(3); Occupiers’
Liability Act (Ont.), s. 4(1). To establish such assumption of the risk, Show
Producers need not prove the traditional volenti defence. The standard
is considerably lower. For example, in Epp v. Ridgetop Bldr. Ltd. (1978),
8 Alta. L.R. (2d) 195 (T.D.), it was held that a person who was familiar with
the circumstances so that he could recognize and avoid danger, assumed the risk
of that danger, with the result that the occupier was not liable. Similarly, in
Schulz v. Leeside Dev. Ltd., [1978] 5 W.W.R. 620, 6 C.C.L.T. 248,
90 D.L.R. (3d) 987 (B.C.C.A.), it was held that an occupier is not liable for
dangers that are known to the user or are obvious to him or are so commonly
known that it can be reasonably assumed that the user will be familiar with
them. In Holman v. Ellsmar Apt. Ltd. (1963), 40 D.L.R. (2d) 657
(B.C.S.C.), the plaintiff was held to have been fully aware of the condition of
an unlighted sidewalk and to have fully accepted the risk of danger. The
occupier was absolved of responsibility.

[58]        
While the plaintiff could see she was about to
walk down a damp wooden ramp, and elected to proceed on the side without a
guard or handrail, she could not see that the ramp was steeper than it should
have been. Notwithstanding that the standard under s. 3(3) is lower than a
common law volenti defence, I conclude that the plaintiff did not
willingly assume the risk of walking down a ramp that was too steep.

[59]        
I do find that the plaintiff failed to take
reasonable care for her own safety in one respect, however. She knew there was
no outside guard or handrail when she stepped onto the lower ramp, and she knew
there was a handrail at least on the inside of the ramp. Even allowing for
increased slipperiness because there was more debris on the inside of the lower
ramp, the plaintiff was negligent to forego the increased safety of the
handrail.

[60]        
I accept that the plaintiff was keeping a
reasonable lookout, and otherwise taking reasonable care for her own safety.

[61]        
In all of the circumstances, I apportion
liability 50% to the defendant, and 50% to the plaintiff.

Injuries

[62]        
The plaintiff was taken from Seabroom to the
emergency department of Victoria General Hospital where she was put in a knee
immobilizer and given crutches. She was told to follow up at a walk-in clinic
as she had no family physician of her own. Instead, she returned to the
emergency department five days later, where the same physician ordered a CT
scan, which revealed a fracture of the plaintiff’s tibial plateau. The
emergency physician referred the plaintiff to an orthopedic surgeon, Dr. Stone,
who examined the plaintiff on May 19, 2011, eight days after her fall.

[63]        
Dr. Stone felt the plaintiff was unstable with
respect to her medial collateral ligament and suspected significant saggital
plane instability and a probable tear to the anterior cruciate ligament. Dr.
Stone noted extensive bruising on the side of the knee and said that swelling
and tenderness made examination of the anterior cruciate ligament difficult.

[64]        
When Dr. Stone examined the plaintiff again on
June 2, 2011, the swelling in her knee had lessened, and he was able to confirm
that her anterior cruciate ligament was “deficient”.

[65]        
Dr. Stone saw the plaintiff three more times,
twice in 2011, and the last time in June 2012, when he saw her because her
lawyer wanted an update. On the last visit, Dr. Stone did not find any fluid
accumulation, but he did find joint line tenderness and significant knee
instability. He thought the plaintiff’s knee was similar to when he had last
seen her in September 2011. X-rays did not show the development of any
significant osteoarthritis. Dr. Stone told the plaintiff that her options
included bracing the knee, surgery, and ongoing exercises to increase her
stability. He told her that she had a greater risk of developing osteoarthritis
in her knee.

[66]        
Dr. Stone’s prognosis is variable. He says that
if the plaintiff were to have her anterior cruciate ligament reconstructed, she
should get a more stable knee and improved function, but at the risk of
surgical complication. With or without surgery, Dr. Stone says that the
plaintiff has a significant chance of developing osteoarthritis in the future.
He goes on to say that the nature of the fracture to the plaintiff’s tibial
plateau is a sign that this may be a more likely development for the plaintiff
“which would make her risk of developing osteoarthritis even higher.” He then
states that the increased risk of developing degenerative arthritis in turn
leads to a higher chance that the plaintiff will need a knee replacement in the
future. Dr. Stone concludes his written opinion by stating that reconstructive
surgery would not likely change the progression of osteoarthritis, but would
provide the plaintiff more stability.

[67]        
The plaintiff had been in good health before she
fell; good enough that she had not needed to find a family physician since she
moved to Victoria in 2004. She became Dr. Vally’s patient in June 2012, and her
first visit was to obtain the referral for Dr. Stone’s visit in the same month.

[68]        
The plaintiff’s next visit was in August 2013,
when she saw a locum physician complaining of right hip pain. The locum diagnosed
tendinitis of the right iliotibial band, and prescribed physiotherapy and
Voltaren, a topical cream. He also recommended ice and ordered an X-ray.

[69]        
Dr. Vally saw the plaintiff for what he described
as a “thorough musculoskeletal examination of her lower limbs” in August 2014.

[70]        
Dr. Vally’s objective findings included wasting
of the muscles in the plaintiff’s left leg, an inability to hyperextend her
left knee, meaning she could not get it beyond completely straight, and a loss
of 5º of full flexion. The hyperextension observation was based on comparison
of right and left legs: the plaintiff could hyperextend her right leg, but not
her left, and Dr. Vally believed they should be the same.

[71]        
Dr. Vally noted laxity of the anterior cruciate
ligament, and increased laxity of the left medial collateral ligament compared
to the right knee.

[72]        
Dr. Vally noted pain and tenderness along the right
iliotibial band. It is Dr. Vally’s opinion that the right iliotibial band
tendonitis is a complication of the left knee injury, brought on by changes in
the biomechanics of the plaintiff’s gait, which are in turn produced by her
knee injury. Dr. Vally’s prognosis is similar to that of Dr. Stone with
respect to the increased risk that the plaintiff will develop degenerative
arthritis in her left knee as a result of her injury. I note that Dr. Vally had
a consultation note from Dr. Stone, but had not seen Dr. Stone’s written
opinion until just before he testified.

[73]        
Dr. Vally was cross-examined on his written
opinion. During that cross-examination he confirmed that August 2014 was his
first full examination of the plaintiff for injuries resulting from her fall.
He testified that he watched the plaintiff walk into and out of the examining
room, and noticed that she limped.

[74]        
Dr. Vally states that the plaintiff will require
a lifelong muscle strengthening program, repair and replacement of her knee
brace, and she may require intermittent consultation with occupational and
physical therapists in the future. This last prognosis, I gather, results from
an increase in the risk that knee instability will cause the plaintiff to fall.

Impact on
the Plaintiff

[75]        
The plaintiff was put in a full length knee
immobilizer and given crutches at the emergency department on May 11, 2011. She
spent five days at home on bed rest before returning to the emergency
department for a follow up.

[76]        
At the time, the plaintiff was living in the
basement portion of the house she shared with her son and her son’s fiancée.
The bathroom was upstairs and the plaintiff had to “bump” her way up to the
main floor when she needed to use the toilet. She says she did not always make
it, and sometimes in the night she did not even try, so on occasion she soiled
herself.

[77]        
The plaintiff testified that her left knee was
swollen for close to four weeks, and after Dr. Stone put her in a
rehabilitation brace that kept her knee bent at 45 degrees, she was on
crutches and unable to bear weight on her left leg for three and one-half to four
months. 

[78]        
The plaintiff was off work for about three
months. When she returned to work in August 2011, she took her crutches with
her for security.

[79]        
The plaintiff is 65 years old. She is a
registered nurse, who has been working full-time in a permanent position since
2008, having worked on-call or as a floater after moving to Victoria. At the
time of her fall she was working in a long-term care facility. Her ordinary
work week averages 37.5 hours, and she prefers the night shift, which runs from
11:00 p.m. to 7:00 a.m. She is usually the senior nurse on that shift, and so
is in charge of the shift, which gives her additional pay. Her ordinary pay
rate is currently $41.63 per hour, but there are various ways that pay rate can
be increased, such as being the nurse in charge, working overtime, or working
on statutory holidays.

[80]        
While she lived in Vernon, the plaintiff worked
as an operating room nurse, but she says she now prefers the long-term care
work.

[81]        
The plaintiff’s job duties include monitoring patient
condition, distributing medications, assessing patients who have fallen for
injuries, assisting in bed changes and other similar tasks. The plaintiff says
that since 2012, she has had about 21 patient fall incidents reported, and each
time she has to get down on her knees to assess the patient for injuries before
the patient is lifted off the floor. The lifting is done by specialized
equipment rather than muscle power.

[82]        
Distribution of medications involves the use of
a wheeled cart, which is somewhat cumbersome, and must be wrestled around
corners.

[83]        
The long-term care facility where the plaintiff
worked at the time of her fall was relatively spread out, and the amount of
walking required was hard on her injured knee. She transferred to the Gorge
Road Hospital in June or July 2012, where the number of resident patients was
roughly the same, but the physical layout was more compact, reducing her
walking requirements.

[84]        
Since she returned to work after her injury, the
plaintiff has had difficulty. Her knee is always uncomfortable, and discomfort
becomes pain by the end of a shift. When her knee becomes painful, she limps.
She occasionally has trouble going down stairs. She says she does not have full
range of motion in her knee, and when she sits in a tub, she cannot fully
straighten the knee. This assertion is not supported by Dr. Vally, who says in
his report that the plaintiff is unable to hyperextend her knee, and who
testified that on his examination the plaintiff could straighten her left knee
to 0º, but could not bend it further (hyperextend), as she could with the
uninjured right knee. Dr. Vally does agree with the plaintiff’s claimed loss of
full range of motion in that he has said that she lacks 5º of flexion, or
ability to bend. The plaintiff’s evidence is supported by Ms. Edwards, an occupational
therapist, who measured a 15º loss of flexion or bending, and a 5º loss of
extension in January 2013.

[85]        
There is no dispute that the injury has made the
plaintiff’s left knee more unstable, nor that it has exposed the plaintiff to
what Dr. Stone described as a “significant chance” of developing
osteoarthritis.

[86]        
Dr. Vally agrees, and says in addition that the
plaintiff has a higher chance of needing a knee replacement in the future as a
consequence of her injuries.

[87]        
That the plaintiff is having difficulties at
work that are caused by her knee injury is supported by the evidence of her
co-workers, Ms. Fraser, a nursing assistant, and Ms. Carnegie, a certified care
aide. Both attest to observing the plaintiff having trouble getting to her feet
after being on the floor to assess a fallen patient, and to having seen the
plaintiff limp, show signs of pain, or have difficulty with some aspect of her
job. Both witnesses had worked with the plaintiff before she fell and had seen
no similar problems before the accident.

[88]        
As noted above, Dr. Vally testified that he also
saw that the plaintiff was limping as she walked in and out of his examining
room.

[89]        
The plaintiff also has the right hip pain that
Dr. Vally confirms results from alteration in her gait, a complication of her
left knee injury. The hip pain interferes with restful sleep.

[90]        
Another consequence of the knee injury is
tendonitis in the plaintiff’s right hip area, the iliotibial band. Dr. Vally
says this is a result of changes in the biomechanics of the plaintiff’s gait,
which are in turn caused by her left knee injury.

[91]        
Ms. Edwards testified that she measured the
length of the plaintiff’s legs in January 2013, and remembered a discrepancy of
one inch between the two. She made no note of that discrepancy in either her
rough notes or her written opinion. In Ms. Edwards’ opinion, this discrepancy
resulted from the plaintiff’s inability to fully extend or straighten her left
knee, which she measured at 5º.

[92]        
This may be consistent with Dr. Stone’s
observation that in September 2011, the plaintiff lacked full extension, and in
June 2012, he felt the plaintiff’s knee was similar to how it had been in
September 2011. It is inconsistent with Dr. Vally’s examination in August 2014,
where the plaintiff lacked an ability to hyperextend her left knee, but he saw
that the plaintiff was able to fully straighten her knee.

[93]        
Dr. Vally stated that he performed a “thorough
musculoskeletal examination of her lower limbs” on August 5, 2014, and did not
mention a leg length discrepancy in his written report, or in evidence at
trial.

[94]        
Dr. Stone’s observation that the plaintiff
lacked full extension in 2011, and his feeling that her knee was similar in
2012, is supplanted by Dr. Vally’s examination in August 2014, in part because
of Dr. Vally’s examination was more recent, and in part because Dr. Stone’s
statement that the plaintiff’s knee was similar in mid-2012 to how it had been
in September 2011 is somewhat general, and not helpful in resolving whether in
2013 there was a lack of extension sufficient to create a discrepancy between
the plaintiff’s leg lengths, as Ms. Edwards said.

[95]        
The plaintiff is less active than she was before
her fall, saying she spends a lot of her time off work indoors, reading, sewing
and watching television. She described herself as a “homebody” now. This
contrasts with an active lifestyle she describes before her accident, walking,
cross country skiing, and snow shoeing, although some of these activities, like
cross country skiing, she had not done for a long time. She has recently taken
up kayaking, which she still pursues, and she can continue to go bowling,
albeit with a modified and less graceful delivery style.

Loss of Income
to Trial

[96]        
At the time of the accident, the plaintiff was
working full-time, 37.5 hours per week, generally as the senior nurse on the
night shift at the Gorge Road Hospital. Her work schedule was complicated, as
she described working: 6 days on, 2 off; 6 on, 2 off; 6 on, 3 off; and 4
on, 4 off. That translates into roughly 20 days working in each 30.

[97]        
The plaintiff was off work from May 11, 2011,
until sometime in August 2011. She says she was off for about three months. The
usual statement from the employer showing hours missed, and pay foregone was
not produced, so a precise calculation of the plaintiff’s lost income is not
possible.

[98]        
It is further complicated by the varying
surcharges or increases that she could earn on top of her base rate. These
include $1.25 per hour if she were the nurse in charge, $3.50 per hour for
night shift work, $1.00 per hour for weekend night shift work, $2.00 per hour
for weekend shift work (it is not clear if that means a total of $3.00 per hour
additional pay for working weekend night shifts), and $.70 per hour for
afternoon shift work. Her pay stubs also show that she is paid double her base
rate for working statutory holidays, and even more is possible if she qualifies
for something called “superstat”.

[99]        
The plaintiff has presented her own calculations
showing that she lost at least $24,000 in the first three months after her
accident. She says that since returning to work, she has taken a day off every
month or two because of knee problems, although she missed more than that when
she first returned to work. She estimates that she has lost another $10,783
since returning to work in August 2011.

[100]     The defendant argues that there is nothing, other than the
plaintiff’s evidence, to support these claims, and very little basis on which a
court can calculate past wage loss. The defendant also argues that the
plaintiff’s tax returns do not support such claims, as they show:

[101]     I have evidence that the plaintiff’s base hourly rate increased in
June 2011, while she was off due to injuries, from $39.24 to $40.42, and
increased again to $41.63 in August 2013. The evidence shows that she worked
night shifts, and that she was almost invariably the nurse in charge, both of
which add to her hourly rate, $3.50 for night shift at the time of the
accident, and $1.25 for being nurse in charge, again at the time of the
accident. There is not enough evidence to calculate what weekends, weekend
nights or statutory holidays the plaintiff might have missed.

[102]     I calculate that the plaintiff lost 450 hours of work in the first
three months after the accident, at a changing base rate, to which should be
added night shift and nurse-in-charge premiums. If my calculations understate
the actual loss, the plaintiff could have provided an employer’s calculation to
remove any uncertainty. I award the plaintiff $27,000 in lost income to trial,
made up of $19,500 in the first three months, and $7,500 thereafter.

Future Earning
Capacity

[103]     The plaintiff testified she is considering giving up full-time work
in the immediate future, because full-time work is too painful on her knee. She
then said she will do this in November or December 2014, giving some greater
certainty to the possibility raised when she said she was considering the
change. The plaintiff said she will work casually, perhaps two days a week,
instead. If that occurs, she will lose about eight days out of each 30
available work days.

[104]     The plaintiff acknowledged that she has not told her employer she
needs any accommodation in her job, or that she cannot do her full duties. She
also acknowledged that no doctor has told her to quit her job.

[105]     Before the injury the plaintiff had planned to work to age 69 or 70.
This plan largely developed as a result of her marriage breakdown in 2003 or
2004. The plaintiff testified that her ex-husband persuaded her to cash out her
pension, and after she did, he asked for a divorce. When she moved from Vernon
to Victoria in October 2004, she had to start all over again to accumulate some
pension entitlement, and that necessitated working to age 69 or 70. That such a
plan was realistic can be inferred from the evidence of Ms. Carnegie, who is
herself 70 years old, and works full-time on the night shift with the
plaintiff.

[106]     There was no reason prior to this accident that the plaintiff’s plan
to continue to work past the age of 65 was unrealistic or unlikely.

[107]     I accept that, if the accident had not occurred, the plaintiff would
have continued working full-time to age 69 or 70.

[108]     I have more trouble with the plaintiff’s current plan to stop
working full-time by the end of 2014 and continue working casual hours
thereafter. The plaintiff’s evidence on the matter started equivocally, then
firmed up, indicating some indecision, which would be understandable, given her
lack of pension. What is also difficult to predict is how much casual work the
plaintiff might do instead of working full-time. The answer to that depends in
part on the plaintiff’s willingness and ability to take on casual work, and
partly on the work offered to her. It also remains to be seen whether orthotics
will ameliorate the right hip pain that comes from the plaintiff’s altered
gait, which would improve her sleep and potentially improve her ability to
tolerate a full working shift.

[109]     The plaintiff’s own estimate of loss under this head is $145,400,
but that is based on an assumption that she would lose three years of future
work, not the four or five that would take her to age 69 or 70. The plaintiff’s
estimate is made without the assistance of an expert report. She merely
extrapolates from her 2013 employment earnings and divides the result in half
to reflect negative contingencies as well as some income from casual work.

[110]     Even if the plaintiff did not follow through on her stated intent to
change from full-time to casual employment, I am satisfied that she would lose
some income in the future from having to take occasional days off to rest her
knee.

[111]     If her work pattern from August 2011, when she returned to full-time
work, to the date of trial were to continue for the next four or five years,
she would lose perhaps another $8,000 to $11,000, perhaps more.

[112]     This aspect of damage assessment involves assessing the weight to be
attached to the likelihood that a loss will occur, and at the same time
weighing the size of the loss if it were to occur, then arriving at a balance
that is fair to both parties and that reflects where, in a continuum from a
small chance that a large loss will occur to a high degree of probability that
a small loss will occur, an award should fall. Proof is not required on a
balance of probabilities, so there is no fulcrum on the continuum to divide
claims for future income loss between proven and unproven.

[113]     Because the plaintiff has been able to work full-time so far,
although with pain, and because there is some chance that proper orthotics
might improve her ability to work full-time or close to full-time, and bearing
in mind that I have concluded that even if she were to work full-time to age 70,
she will still lose income on days when her knee bothers her too much to work,
I assess her damages for impaired or lost future opportunity to work at
$100,000.

Cost of Future
Care

[114]     Dr. Vally has said that the plaintiff will need a lifelong muscle
strengthening program. Ms. Edwards said that physiotherapy is needed to monitor
that the plaintiff is doing recommended exercises correctly. I conclude that
the recommended physiotherapy expense is both medically justified and
reasonably priced. I do not accept that the recommendations for a pool program,
kinesiology, gym pass or acupuncture are medically justified. While I accept
that Ms. Edwards’ opinion alone may be sufficient to satisfy the medical
justification test, I note that the plaintiff tried and abandoned acupuncture
because she did not notice any difference, and that her reaction to Ms.
Edwards’ recommendations for a pool program and gym pass was that she would do
it if she had the money. A registered nurse who earns around $90,000 a year and
who does not pursue recommended treatment options because of cost is indicating
her own view of priorities for both treatment and money.

[115]     The plaintiff testified that she swam before her accident, more
outdoors at a local swimming area, and so in season, but also at a recreation
centre. She also testified that she has been doing exercises at home, which
were recommended by a physiotherapist.

[116]     The plaintiff will need a knee brace to improve her stability. This
is medically justified within the meaning of Milina at 84. I
accept from Ms. Edwards that the brace will need replacement every two years,
at a cost of $1,400 each time, and I find that cost to be reasonable, also
within the meaning of Milina at 84.

[117]     I do not accept medical justification for Ms. Edwards’
recommendation of the increased cost of a new mattress. Ms. Edwards was the
only one who thought it medically justified, and the plaintiff herself merely
said a new mattress may help her sleep. Additionally, for reasons I will now
explain, the sleeping problem appears to be mostly related to right hip
discomfort, and it can be alleviated through the orthotics recommended by Ms.
Edwards. I do not accept that a knee bolster is medically justified, as the
plaintiff has not said that her knee causes problems with sleeping.

[118]     I do accept as medically justified the recommended cost of orthotics
and deeper shoes to accommodate them. Although I have not accepted that the
plaintiff has a measureable leg length discrepancy, I do accept that she limps,
that the limp results from an alteration to her gait as a result of her knee
injury, which in turn has led to pain in her right hip, and that right hip pain
has made it difficult for her to get a restful sleep. The recommended orthotics
and shoes are therefore medically justified and at a reasonable cost.

[119]     The plaintiff has fallen in the bath because of knee instability. A
grab bar is medically justified, as is a bath mat.

[120]     The plaintiff testified that it would take a lottery win for her to
consider buying a detached house with a yard. The recommended cost of yard
service is speculative at best. She has testified that she does her own
housework, including washing her floors on hands and knees.

[121]     The pain management recommendations are medically justified and
reasonable. The medications are little more than the plaintiff has been taking
since her injury, and the hot and cold wraps are both justified and reasonable
on their face as pain management tools.

[122]     Ms. Edwards has recommended home support, and additional
physiotherapy if the plaintiff requires a total knee replacement. A knee
replacement is a possibility that would follow on the increased risk of
degenerative arthritis in the knee. I accept that the risk exists, and that
there is no present sign of degenerative arthritis in the plaintiff’s knee.

[123]     Ms. Edwards has recommended a cane, walker, wheelchair, lift and
recline chair, bed assist, tub transfer bench, medical alert life line, and hip
protector in the event that the plaintiff’s knee injury accelerates the
plaintiff’s need for these items. These are items that the average person will
need at some point due to aging. To award damages now on the basis that this
plaintiff might need one or more of these items earlier than she otherwise
would have, is speculative and unreasonable in my view.

[124]     Dr. Young’s report indicates that the present value of those goods
and services I have found both medically justified and reasonable is around
$39,000. I say “around” because Dr. Young points out that Ms. Edwards’ costing
was at a time when Harmonized Sales Tax was payable, while at trial a lower
Provincial Sales Tax applies. I have reduced the amounts by an arbitrary $392
for items in Table 2 that have been awarded, and $274 for items in Table 3.

[125]     I fix damages for cost of future care at $39,000.

Health Care
Costs

[126]     British Columbia has certified an amount of $4,066.38 under the Health
Care Costs Recovery Act, S.B.C. 2008, c. 27. That amount is awarded.

Special Damages

[127]     I accept that the plaintiff has reasonably and necessarily spent
$116 that has not been repaid to her, as a result of her injuries. That amount is
awarded.

Non-pecuniary
Damages

[128]     The plaintiff has suggested an award of $80,000 under this heading.
To his credit, counsel for the defendant has conceded that this suggestion is
within a reasonable range, given all of the circumstances. That relieves me of
the need to canvass the authorities only to point out that damages are to
compensate this plaintiff for her injuries and their impact on her life. I
award the plaintiff $80,000 for her pain and suffering and loss of enjoyment of
life.

Summary

[129]     The defendant shall pay to the plaintiff (or to the Minister of
Health) 50% of the following damages:

                “R.T.C.
Johnston, J.”           

The
Honourable Mr. Justice Johnston