2008 BCSC 1188 Ufimzeff v. Brown

Before: The Honourable Mr. Justice Barrow

Reasons for Judgment

Counsel for the Plaintiff:	M.J. Yawney
Counsel for the Defendant:	J.A. Horne
Date and Place of Trial:	July 29 and 30, 2008
	Kelowna, B.C.

[1] The plaintiff is suing for damages arising out of a motor vehicle accident. Liability is admitted.

The Accident

[2] On June 15, 2005, the plaintiff was driving her 1999 Honda Civic on 24th Street in Vernon when the defendant, who was driving a 2000 model Chrysler, pulled out of an alley and struck the plaintiff’s vehicle. The damage from the collision was such that the plaintiff’s vehicle was written off. Both air bags in her car deployed. The force of the collision dazed the plaintiff, and her first recollection after impact was sitting in the car which was on the wrong side of the road. In the collision, she hit her chest and injured her neck and back. She called her daughter from the accident scene. Her daughter arrived and took the plaintiff to the hospital where she was examined and released the same day after being told that she had injured her muscles in her chest. She went home and over the next several days felt progressively worse. She saw her family physician, Dr. Smart, first on June 20, 2005, and again on June 28th and July 6th; on each of these latter visits, she reported increased pain in the area of her sternum. Dr. Smart ordered x-rays and they revealed an undisplaced fracture of her sternum.

The Plaintiff’s Background and Credibility

[3] The plaintiff is 63 years old. She was born in China into a Russian family in the aftermath of the Second World War. Her family was poor. Her parents had 11 children and her father worked as a labourer in various locations throughout China. Because food was very scarce and because there was the prospect of work constructing a railroad in Australia, the family immigrated there in the mid 1950s. The plaintiff did not speak English and had not attended school. She was enrolled in Grade 6 on arrival in Australia but, in part, due to her inability to speak English and, in part, because her parents needed her to work to help support the family, she only remained in school for a year. That remains the extent of her formal education to this day. She secured work in a textile factory when she was 13 years old earning $14 every two weeks. She worked at the factory until she was 18 when, in 1963, she married her husband, John, to whom she is still married. Her husband is eight years her senior and is now 71 years old. Shortly after their marriage, the plaintiff and her husband moved to Queensland, where they rented a papaya farm. For the next 10 years, they both laboured long and hard farming papayas. It was heavy work and the climate was warm, much warmer than she was used to. In addition to her farm labour, she gave birth to seven children while they were in Queensland. In 1973, when she was pregnant with her eighth child, they decided to immigrate to Canada. They chose Canada because they had some siblings here, and they thought the climate would be more to their liking. They came directly to Vernon where they have lived ever since. Shortly after their arrival, their eighth child was born. All of the plaintiff’s children and her 41 grandchildren live in Vernon. They form a close and caring family.

[4] Not long after their arrival in Canada, the Ufimzeffs purchased an older home for $15,000, and not long after that, they bought a 14.5-acre farm on the Old Kamloops Highway and moved onto it. Approximately a year after her arrival here, Mrs. Ufimzeff went to court to legitimize her residency. She testified with obvious pride and deep gratitude about their good fortune at being allowed to stay in this country. The plaintiff’s husband worked both off the farm and on the farm. Off the farm, he worked as a carpenter; on the farm, he attended to the heavier chores. They planted garlic, raspberries, tomatoes, zucchinis and peppers. They also tended the fruit trees on the property. They sold their produce to fruit and vegetable vendors and consumed that which they required. They kept a milk cow and raised and sold sheep. The plaintiff did the weeding and most of the harvesting, including picking the fruit and produce.

[5] In addition to her work on the farm, the plaintiff was primarily responsible for the care of her large family. In addition to these daunting tasks, for six years she worked nightshift at a local restaurant, first as a dishwasher and later as a cook’s helper. She then worked for a time on a pizza assembly line following which she returned to dishwashing at the restaurant where she had worked for previously. About 10 years ago, she gave up working off the farm and devoted herself to the chores on the farm. The last of her children to leave home did so about 10 years ago.

[6] The Ufimzeffs tended to their farm without outside help. Their children worked as necessary, but by the time the last of them had left home, the plaintiff was required to work full time on the farm. Her husband retired about five years ago. He had cut his right hand on the job and lost some of its use. He could not hold nails and thus could not pursue his vocation.

[7] The defendant argues that the plaintiff is prone to exaggeration. In support of this assertion, the defendant points to certain aspects of her examination for discovery, which he argues are inconsistent with her evidence at trial. I found the plaintiff to be an utterly forthright witness. She struggles to a degree with the English language. To the extent there are differences between her evidence on discovery and at trial, and those differences are not many or particularly significant, the explanation lies, in part, in that language barrier. She gave her evidence at trial carefully, not because she was concerned about being tricked or caught in a lie but because she took her oath very seriously and wanted above all to be true to it. I am satisfied she did just that.

[8] Although not necessary, I will address the two areas in her evidence said to conflict with her evidence on discovery. At trial, she said that she did digging on the farm. On examination for discovery, she said that while she did some digging, her husband tended to most of that. To the extent this is a difference, it is one of degree only and is of no moment when viewed in the context of her entire evidence.

[9] There is no doubt that the plaintiff has worked hard her entire life. In fact, she has done nothing but. The enormity of raising eight children essentially by herself and working to the extent that she did on the farm is telling evidence of that. Working nightshifts washing dishes or on an assembly line in addition to that is yet further evidence of her work ethic and her capacity. She gave her evidence about all of this in a self-effacing almost matter-of-fact manner; she spoke as if her experience has been no different from that of anyone else’s. That said, she is quietly proud of her accomplishments. She likes to work. When asked if she had plans to retire, she was somewhat taken aback, as if that notion had not occurred to her. She said that she liked working on the farm and thinks that if she were to stop working, she would die. Her mother worked in her garden until she was 90 years old, and I gather that the plaintiff hoped to do the same. Her mother died at the age of 93. Thus, I do not take from the differences between her examination for discovery evidence and her trial evidence a tendency to exaggerate; rather, I suspect that if there is a difference between what she testified to and what she in fact has done, it is likely that she understated her labours.

[10] The second area of alleged conflict relates to the reason why she and her husband sold the farm. At trial, she testified that they sold the farm after the motor vehicle accident because she could no longer do her share of the work. She testified that the decision to sell had nothing to do with her age. On examination for discovery she said, “When this accident happened, I said to John, ‘Let’s sell the farm. I don’t think I able to work,’ and plus getting older too, right…” On cross-examination, she said that she was referring to her husband’s age when she gave her answer on examination for discovery. I accept that is what she was referring to. I accept that because I accept her evidence and because it is consistent with the whole course of her life. I have no doubt at all that if she were able to, she would still be working with her husband on their farm. I accept that she would have continued to do that as long as they were both able to manage it.

[11] Finally, the plaintiff’s 41-year-old daughter, Ms. Bielski, testified. She described her mother much as I have. She said she was a very hard worker; she would see the children off to school in the morning and be there when they got home to make dinner. Following the evening meal, her mother would then go off to work washing dishes. Like her mother, Ms. Bielski gave her evidence without exaggeration or embellishment of any kind. She simply told the truth.

[12] For all of these reasons, I accept the plaintiff’s evidence without reservation.

The Plaintiff’s Medical History and Her Injuries

[13] As noted, the plaintiff’s family physician is Dr. Smart. He has been her doctor since 2000. When she first saw him following the accident, he diagnosed her as suffering from a grade two cervical and thoracic sprain and a sternal contusion. He noted on physical examination that she had a reduced range of motion in her cervical spine both laterally and in flexion. She had marked tenderness in the area of her mid-sternum and in the musculature surrounding her cervical spine. He prescribed Ibuprofen and Tylenol 3 and referred her to physiotherapy. She was next seen on June 28, 2005, when she was complaining of increased pain in her sternum. The pain was especially bad when she was lying down and when she attempted to roll over. Her back pain had become worse and had extended into the thoracic and lumbar area of her spine. Dr. Smart prescribed additional medications including Tylenol with codeine. Her first physiotherapy appointment was scheduled for the following day, and he asked to see her in follow-up on July 6, 2005. He saw her then as scheduled, and when her symptoms were still acute, he ordered x-rays. Those x-rays were done on July 7, 2005, and revealed an undisplaced fracture of her sternum. Dr. Smart next saw her on August 19, 2005, when she reported that her low back and neck pain were improving, but her sternal pain remained significant and was limiting her ability to sleep and do any heavy work. It was also still significantly restricting her ability to bend over and lift her arms above her head. She was next seen on September 15, 2005, when she reported that her sternal pain was moderating such that she was able to take a deep breath and do light house work. Her neck and back pain was aggravated when she had attempted to pick fruit on her farm. She was next seen on October 20, 2005, when she reported slow improvement in her neck and back pain. Her sternal pain remained problematic, in that she continued to experience ongoing pain in that area, which limited her ability to lift objects and interfered with her sleep. She had been attending physiotherapy up to this point, but she had decided to discontinue it because she did not feel it was providing further benefit. She was seen on November 21, 2005, and reported that she was having sharp central sternal pain when lifting, rotating or rolling over in bed. Her neck and low back pain was still present and was aggravated by driving, light housework and prolonged standing.

[14] A further x-ray was ordered on November 21, 2005, and it showed that the fracture to her sternum had healed.

[15] On December 22, 2005, she saw Dr. Smart again and reported that her sternal pain, while always present and susceptible to predictable aggravation, was slowly improving. Lifting and cross-body movements of her arms were the most likely activities to give rise to increased pain in her sternum. Her neck and low back pain continued to be susceptible to aggravation by physical activity. On January 31, 2006, she was seen again by Dr. Smart. She reported ongoing sternal pain which became acute with activities such as making bread, lifting or holding her grandchildren, and attempting to shovel snow. Generally, since the motor vehicle accident, the sternal pain had remained a dull background pain, but when she rolled over in bed or did the activities just noted, it became acute. Her neck pain was, however, by this point “pretty good”, although still a bit sore. A CT scan of her sternum on February 23, 2006, revealed that the fracture had healed properly. Dr. Smart saw her again on March 6, 2006, and explained the CT scan results to her and referred her again to physiotherapy. He saw her next on May 30, 2006, and noted that her symptoms remained essentially the same. He saw her again on August 15, 2006, by which point, she and her husband had sold their farm and moved into Vernon. With the sale of the farm, there was a decrease in the plaintiff’s physical activity, and that seemed to have led to a moderation of her symptoms but they continued to be present. By November 10, 2006, she reported to Dr. Smart that her sternal pain was slowly improving although she had in the two or three weeks before that visit experienced an exacerbation of her low back pain. By April 18, 2007, the plaintiff was still experiencing sternal pain which seemed to have worsened over the previous four to five months without any increase in her baseline physical activity. By May 7, 2007, Dr. Smart concluded that further physiotherapy was no longer warranted – not because her symptoms had resolved but because it did not appear to be having any therapeutic effect.

[16] Dr. Smart, in his report of September 7, 2007, expressed the opinion that the plaintiff remained mildly to moderately restricted in her physical abilities due to the motor vehicle accident, and while she had experienced improvement in her symptoms, that improvement remained incomplete. More specifically, he was of the opinion that the plaintiff had been totally disabled for three months following the accident, and by nine months following the accident, she had recovered to the extent of 50 percent of her pre-accident abilities. She has remained at that level since, despite having made significant modifications to her level of physical activity.

[17] As to her prognosis, Dr. Smart thought, as of September 2007, that she would continue to suffer the limitations that she was then suffering for perhaps the next year. In his evidence, given almost a year after his report was written, he thought her prognosis remained unchanged, that is, that she would continue to suffer the limitations she is now suffering for another year.

[18] In terms of future treatment, Dr. Smart is of the view that if her symptoms worsen, she may benefit from further physiotherapy but not otherwise. He is also of the opinion that she would benefit from a strengthening program at a gym or with a personal trainer. The plaintiff indicated that she was not interested in attending a gym. I infer that her reluctance is not because she does not want to get better, but because she is 63 years old and likely has never seen the inside of a gym and simply feels uncomfortable with the prospect.

[19] As to the plaintiff’s health, aside from the motor vehicle accident injuries, two issues arise. The first relates to cardiac disease which was diagnosed and treated after the accident, and the second relates to whether she had a pre-existing back problem likely related to degenerative disc disease.

[20] Dr. Coghlan, a physical and rehabilitation medicine specialist, saw the plaintiff at the request of the defendant on May 15, 2008. She reported the history of her symptoms to him in a manner consistent with that which she had reported to Dr. Smart. Between Dr. Smart’s report of September 2007 and Dr. Coghlan’s assessment in May 2008, the plaintiff had suffered a serious cardiac event. Dr. Smart’s report does not deal with that event given that it predates it. Dr. Coghlan’s report, which is based on his assessment and Dr. Smart’s clinical records, does deal with the issue. He noted that in February 2008, the plaintiff had open heart surgery, which required the surgeon to split her sternum to access her heart. He noted that, in the fall of 2007, the plaintiff was complaining of chest wall pain and, as a result, was referred to an internist who conducted various investigations which revealed she was suffering from significant angina. She underwent triple bypass surgery to remove the blockages in her coronary arteries.

[21] One of the difficulties that Dr. Coghlan faced was attempting to isolate whether the pain the plaintiff was and had been experiencing was due to cardiac disease or whether it was a consequence of the injury to her sternum sustained in the motor vehicle accident. He said this about the matter in his report:

On questioning today it was difficult to clarify whether the chest wall pain she was experiencing at that time was due to her underlying cardiac disease or whether it was due to the injury to her chest from the accident.

He also noted that:

...It is hard to clarify how much of her chest wall discomfort dates from before the accident and whether or not her chest discomfort is predominantly due to her underlying coronary ischemia...

[22] At the time Dr. Coghlan saw the plaintiff, she was still in the process of recovering from her heart surgery. As a result, he was unable to determine whether, upon full recovery from the surgery, her ongoing pain in the chest wall would continue. As he put it, “only time will tell”. As to the attribution of her pain as between the two possible causes, that is, the motor vehicle accident and the heart disease, he stated:

...I think it is unrealistic to relate all her chest wall pain to the accident as it was present in 2000 and has persisted since that time. In fact it increased. Even after her sternum had healed the pain in her chest got worse to the point that she was investigated for a cardiac origin which was the case.

[23] Dr. Coghlan’s reference to the pain in the plaintiff’s chest being present in 2000 is based, in part, on Dr. Smart’s clinical records in which there is a report from an internist dated June 12, 2000. In that report, she is noted to have presented with the following symptoms: feeling constantly hot; a continuous sense of chest pressure; an exacerbation of that sensation if she walked quickly or bent over; and difficultly breathing when lying supine. Dr. Silva, the internist, concluded that her symptoms were likely due to gastro reflux as opposed to her heart but that because she had a family history of heart disease, the status of her cardiac health should be monitored.

[24] Dr. Smart was asked during his evidence-in-chief for his opinion on the relationship between the cardiac disease and the plaintiff’s ongoing pain. That evidence was objected to on the basis that it constituted expert opinion evidence that was not found in his report. Counsel for the plaintiff argued that it was admissible either on the basis that the doctor was entitled to testify as her treating physician on the point or that it would be admissible by way of reply or response to Dr. Coghlan’s evidence. I heard Dr. Smart’s evidence and indicated that I would rule on the objection later. I do that now.

[25] Rule 40A provides that an expert may give evidence orally if a written statement of his or her opinion has been given to the other side within the time prescribed by the rule. Rule 40A(15) provides that the court may dispense with the requirement of delivery of a statement. Rule 40A(16) provides as follows:

(16) Without limiting the generality of subrule (15), the court may dispense with the requirement of delivery of a statement on one or more of the following grounds:

(a) where facts have come to the knowledge of the party tendering the witness after the delivery of the statement of that witness's evidence, that could not, with due diligence, have been learned in time to be reduced to a further statement and delivered within the time required by this rule;

(b) where the non-delivery is unlikely to cause prejudice

(i) by reason of an inability to prepare for cross-examination, or

(ii) by depriving the party against whom the evidence is tendered of a reasonable opportunity to present evidence in response;

[26] This is not a case to which Rule 40A(16)(a) applies in that the plaintiff knew of the cardiac issue sufficiently in advance of the trial to allow the doctor to address it by way of report. It may be that neither the plaintiff nor Dr. Smart thought it particularly relevant prior to receiving Dr. Coghlan’s report, but once that report was received, its relevance became apparent. The issue is whether dispensation ought to be granted under Rule 40A(15). I am satisfied that it should be. First, the defendant has been in possession of Dr. Smart’s clinical records for some time. It is those clinical records which form the basis of that aspect of his opinion to which objection is taken. Second, it was not suggested that the defendant was prejudiced in his ability to cross examine Dr. Smart on the issue. In fact, while the issue involves a medical opinion, the nature of the opinion is not particularly technical. Further, the defendant knew Dr. Smart’s opinion before he called his expert who dealt with the same issue. Nothing arose from the impugned aspect of Dr. Smart’s evidence that the defendant indicated was surprising or that required an adjournment to address. In short, the non-delivery of a report on the issue did not cause prejudice to the defendant. Moreover, I consider that the interests of justice require that dispensation be granted. The evidence is important to one of the issues, and in the absence of any prejudice, in the particular circumstances of this case, it ought to be received.

[27] Dr. Smart testified that, on September 12th, the plaintiff came to his office with a distinctly different group of symptoms, namely, fatigue and a squeezing chest pain upon walking. He was suspicious that she may have coronary disease and ordered a number of tests, including a stress test which was positive for cardiac ischemia. She had bypass surgery in February 2008 and recovered remarkably well. In his view, she has completely recovered from that surgery and the disease. As to Dr. Coghlan’s view that there was difficulty in distinguishing her sternum pain from her heart disease, Dr. Smart testified that he had no such difficulty. He described the plaintiff as a good historian, and the pains she was experiencing in September 2007 were distinctly different than those she had reported up until that point. As to her condition in 2000 when she was first investigated for possible angina or related conditions, he noted that she did a stress test then and did remarkably well. He shares Dr. Silva’s opinion that the problems then were due to acid reflux and not her heart. In the result, Dr. Smart’s opinion is that the plaintiff’s present difficulties are a consequence of the injuries she sustained in the motor vehicle accident and are not related to her heart which has been surgically corrected.

[28] In cross-examination, Dr. Smart’s evidence was challenged on a number of fronts. It was suggested that he was not simply an expert but was advocating for his patient. Support for that position is said to be found in a comment Dr. Smart made in his report about the lack of any need for housekeeping assistance and his evidence at trial that she did, in fact, need such assistance and in the overall tenor of his evidence. As to the former, he explained that what he meant was that with the assistance she receives from her extended family, she does not need outside housekeeping assistance, but without such assistance, she does. As to the latter, it is suggested simply that he quite understandably likes the plaintiff and wants to see her compensated. I am not persuaded that Dr. Smart’s evidence ought to be discounted on the basis that he was advocating for his patient. He gave his evidence in a clear and balanced way. He offered logical explanations for his conclusions, explanations which are supported to a large degree by his clinical notes made at the time.

[29] Turning to the more substantive issue, that is, the interplay between the plaintiff’s heart problems and the injuries from the motor vehicle accident, I am satisfied that the heart problems gave rise to a distinctly different set of symptoms and that those symptoms are now gone. Dr. Coghlan’s difficulty in differentiating these symptoms may be due to the plaintiff’s difficulty in expressing herself in English. Her difficulty in that regard was apparent in listening to her evidence. What was also apparent, however, was that the longer one listened, the easier it became to understand clearly what she was saying. Dr. Coghlan did not have that luxury. Further, the plaintiff testified that the difficulties she was experiencing in relation to her heart were different than those that she continues to experience in relation to her chest. She testified that the problems associated with her heart, namely, shortness of breath and a squeezing sensation in her chest, cleared up after her surgery, but she continues to experience the symptoms that she has had since the motor vehicle accident.

[30] The issue relating to the existence of a pre-existing back problem arises from the evidence of Dr. Coghlan. He reported that she had a “history of recurrent back pain”, which he attributed to underlying degenerative disc disease and facet arthritis. Dr. Smart took some issue with this description of the plaintiff’s history. He testified, and his clinical notes support, that she reported back pain once in 2002 and that was after she had been on a long car ride. She saw him once as a result and never mentioned the matter again. Dr. Smart concluded this was mechanical in nature. In May 2002, the plaintiff had an episode of thoracic vertebral pain. This also resolved quickly and without significant medical intervention. On October 28, 2003, she reported chest wall and thoracic back pain. An x-ray of her spine revealed degenerative disc narrowing. By November 12, 2003, the pain had resolved without any medical intervention. I accept that the plaintiff has degenerative disc disease but that it is no more serious than it is for anyone of her age. I am satisfied that it was asymptomatic at the time of the motor vehicle accident.

[31] I am satisfied that the plaintiff sustained a moderate soft tissue injury to her back in the motor vehicle accident. Both Dr. Coghlan and Dr. Smart diagnosed her injury as such. Further, she sustained a fracture to her sternum. That fracture likely disrupted the soft tissues in the area of her sternum as her body compensated for the boney injury. Those injuries resulted in her being entirely unable to perform the physical labours associated with the operation of the family farm for approximately six months and continued to substantially impair that ability until the farm was sold in the summer of 2006. I am satisfied that they continue to limit her function today in the sense that she is unable to lift her grandchildren and she experiences difficulty in doing other activities that she formerly enjoyed, including keeping her house, tending to her garden and sleeping. As to the future, these limitations will likely continue although they will be moderate. I am also satisfied that she would benefit from a program of physical strengthening. While I understand her reluctance to attend a gym, that would be of benefit to her. It is not the defendant’s responsibility if she chooses not to follow her physician’s advice in that regard.

Damages

[32] The plaintiff seeks damages under the following heads: general damages, an award for housekeeping, past and future wage loss, and certain special damages. The defendant argues that no case has been made out for any award, except general damages and the agreed special damages. He argues that to the extent there is a need for housekeeping assistance, it should be dealt with under the general damages aspect of the plaintiff’s claim. I will deal first with the housekeeping issue and then turn to general damages followed by the claims under the other heads.

a) Loss of Housekeeping Capacity

[33] The leading authority on the issue of the compensability of a loss of housekeeping capacity is Kroeker v. Jansen (1995), 4 B.C.L.R. (3d) 178 (C.A.) [Kroeker], the implications of which were explained in McTavish v. MacGillivray, [2000] B.C.J. No. 507 (C.A.) [McTavish]. In McTavish, Huddart J. A. discussed two possible approaches to the loss of housekeeping capacity: the value of the lost opportunity to one who has voluntarily assumed those tasks and the replacement cost approach. She concluded that the latter approach is the one that has been favoured in this province (see para. 34). She held at para. 43 that Kroeker:

...quite clearly decided that a reasonable award for the loss of the capacity to do housework was appropriate whether that loss occurred before or after trial. It was, in my view, equally clear that it mattered not whether replacement services had been or would be hired.

[34] Finally, she held that whether an injured party is or is not likely to hire someone to perform household chores is not a contingency to be taken into account when assessing damages for this loss (see para. 46).

[35] I am satisfied that the plaintiff has suffered, and will continue to suffer, a loss of her ability to perform household chores. The evidence is clear that she performed virtually all of the housekeeping chores in her home. Her relationship with her husband was a traditional one in that sense. He worked as a carpenter and on the farm, and the inside chores were left to the plaintiff. Following the motor vehicle accident, she was unable to do most of those chores for the first few months. Thereafter, she was able to do tasks that she could do while standing up and, for example, working at a counter. If she vacuumed, she would be sore the following day. To do any chores that involved raising her hands over her head caused pain, so too if she had to bend forward or bend down or over. She found that she could not carry a bag of sugar or flour. She could sweep the floor and manage the dishwasher. She did not hire anyone to do the chores she could not do because she and her husband could not afford it. When her children would visit, she would reluctantly ask them to help, which they were only too happy to provide. Her abilities now are somewhat better than they were in the months following the accident but, for the most part, have remained static since then. She testified that she is “frustrated” that she cannot keep her house to the standard she would like and that she does not like to ask others to do it for her.

[36] I am satisfied that the plaintiff has suffered a loss of her ability to do household chores. What is lacking, however, is any evidence by which that loss can be quantified. There is no evidence as, for example, there was in McTavish of the cost of replacing those services. The plaintiff has referred to Ball v. Moorman, [2002] B.C.J. No. 686 (S.C.) [Ball], in support of her claim. It is difficult to know what the evidence was in that case that formed the basis for the award of $18,000 other than that the plaintiff required three hours of assistance per week. While I am able on the evidence to estimate the time per week that she might require housekeeping assistance, there is no evidence as to the cost of those services. In several cases, such services have been valued at $10 per hour and that may be a reasonable, or even conservative, value to place on them, but in all of those cases, there was evidence to support that valuation (see, for example, Fobel v. Dean (1991), 83 D.L.R. (4th) 385 (Sask.C.A.)). I am not, therefore, prepared to find that a pecuniary loss has been proven to the extent necessary.

[37] The fact that it is not possible to precisely quantify the loss of housekeeping services does not mean the loss is irrelevant to the award of damages. I am satisfied that the loss of housekeeping capacity, both past and into the future, is compensable under an award of non-pecuniary damages, although not for the same reasons or to the same extent as it would be if it were able to be addressed as a pecuniary loss. I note two things about the plaintiff’s loss in the matter at hand. The first is that I am satisfied that it has existed to the extent I have described since the accident. Given that some three years have elapsed since the accident and the plaintiff’s limitations have remained more or less static, it will continue into the future. If she were to follow the conditioning regime that Dr. Smart recommends, and as she is obliged to do, I consider that she will have recovered her ability within the next two years to do most of that which she has been unable to do up to this point. The second thing I note is the nature of this loss to the plaintiff. Housekeeping has been for her a chore but not one that she begrudged doing. To the contrary, it is apparent that she regarded it as her duty and it was one that she took some pride in performing well. I infer her reluctance to ask her children to do those things is, in part, due to her desire not to impose on them but also has much to do with her desire to do those things herself. Viewed from that perspective, it is a loss that is more acutely felt by her than might be the case with others. I am satisfied that the assistance she requires amounts to four hours per week. That was the case from the date of the accident until the trial and will be the case for the next year or two. Her ability to do household chores will improve thereafter, such that in two years I am satisfied that she will no longer experience a loss.

b) Non-pecuniary Damages

[38] The plaintiff argues that an award of $70,000 is appropriate in this case relying on Clark v. Stricker, [2001] B.C.J. No. 964 (S.C.) [Clark]; Froc v. Gismondi, [2005] B.C.J. No. 2401 (S.C.) [Froc]; Pingitore v. Luk, [1994] B.C.J. No. 1866 (S.C.) [Pingitore]; Stapley v. Hejslet, [2006] B.C.J. No. 128 (C.A.) [Stapley]; Randhawa v. Hwang, [2008] B.C.J. No. 630 (S.C.); Rogers v. Rekow, [1997] B.C.J. No. 914 (S.C.); and Williams v. Nicholson, [2005] B.C.J. No. 1402 (S.C.) [Williams]. The defendant says that an award of something less than $30,000 is appropriate under this head, relying on Litwinenko v. Beaver Lumber Co., [2006] O.J. No. 3383 (S.C.) [Litwinenko]; Rota v. Ross, 2002 BCSC 1761 [Rota]; Narvey v. Tuazon, [2002] B.C.J. No. 2382 (S.C.) [Narvey]; and McAvena v. Kabatoff, 2003 BCSC 629 [McAvena].

[39] I am satisfied that the plaintiff’s injuries consist of soft tissue injuries to her neck and back which were of mild to moderate severity. They improved such that six months after the accident they were, in her words, “pretty good”; although they continued to bother her and, from time to time, would flare up, usually when she exerted herself in the course of her farm chores and otherwise. I am satisfied that since mid-2006, that is, approximately a year following the accident, they were largely resolved.

[40] The injury to her sternum has proven much more difficult for her. It was very painful until at least the summer of 2006, when she and her husband sold the farm. The pain settled down not because the injury had resolved but because of the significant change in her lifestyle that came with moving into town. As of the trial, she remained significantly disabled as a result of ongoing pain in her sternal area, such that in Dr. Smart’s opinion was that she had about 50 percent of her pre-accident physical abilities. The pain she has experienced affected her ability to sleep through the night for much of the first year following the accident. In terms of medications and other therapies, with the exception of joining a gym, she has done all that her health care professionals have asked of her. I accept Dr. Smart’s opinion and the plaintiff’s evidence as to the course of her recovery and her past and present condition. She is not prone to exaggerating her pain; in fact, I think she is a relatively stoic individual who is not inclined to complain except when the pain she experiences warrants it. I consider that the pain she now experiences will continue for at least the next year and thereafter moderately. If she applies herself to a regime of physical conditioning, her recovery will likely be more or less complete two years hence.

[41] The impact of these injuries on the plaintiff’s ability to enjoy life has been significant. It is apparent that farming is something she loved doing. Although she did it, in part, for the income they were able to generate through the sale of their produce, I am satisfied that it was more than merely that. It was something she took pleasure in. She had no plans to retire from it and hoped to do it until she either died or the infirmities of advancing age prevented her from doing it.

[42] Since moving from the farm the plaintiff and her husband have lived in a house. The plaintiff likes to garden and she has attempted to continue with that hobby at her house. She has, however, been unable to do so. She would like to have flowers but has found that she cannot bend over to plant or weed her garden. She is a woman with simple tastes and pleasures, and gardening is one of them and one that she has been unable to enjoy. Her family is large and close. She loves her grandchildren and would like to be able to hold and carry them. She has been limited in her ability to do that.

[43] Turning to the authorities referred to by the plaintiff in Ball, a 53-year-old plaintiff was involved in a rear end collision in 1998. She and her husband ran a farm on which she worked doing the work of a traditional farm-based homemaker. She did that for 20 years and then took a janitorial job when her youngest foster child became independent. She had done that job for 12 years by the time of the motor vehicle accident. In the accident, she suffered reasonably significant soft tissue injuries to her back. She was forced to resign her janitorial position a couple of months after the accident and had not returned to that work by the time of the trial in 2001. Meiklem J. found that she would not ever return to work. As to the affect of her injuries on her daily life, he said this at paras. 12 and 13:

12. Mrs. Ball testified that she still takes Tylenol 3 and muscle relaxants. She says that her sleep is affected and she sometimes gets up in the night and sits at the kitchen table. Her pain has changed in the sense that it comes up the right side of her neck and makes her head numb. She describes this as occurring two to three times a week when she yawns or does something like putting a sheet on a bed or picking up a teacup.

13. Although she still can perform some housekeeping duties, she does not do so as thoroughly and there is pain associated with many housekeeping tasks. There are some things that she cannot do at all, such as pick up heavy pots, groom or ride her horse, rototill her garden, cut her lawns, rake leaves and sweep the snow off her steps. She testified that she misses her job at the Auction Mart, which she would have continued to do as long as she was able to if she had not been injured in the accident.

He awarded $50,000 in non-pecuniary damages.

[44] In Clark, a 66-year-old female plaintiff suffered severe soft tissue injury to her cervical spine. These injuries affected her ability to sing, which was both her vocation and avocation. The accident occurred in 1997 and the trial was held in 2001. As to the impact of her injuries on her daily life, Melvin J. wrote at paras. 18 and 28:

18. The soft tissue injuries described by Dr. Kamani and Dr. Hershler have a greater significance than the norm as the plaintiff testifies that her ability to sing has been compromised, and this directly affects her teaching skills or abilities as she can no longer demonstrate the sounds that she wishes her students to emulate. The plaintiff is a classical singer -- a lyric soprano. As a result of her concerns, a number of experts addressed the voice issue. The main evidence in this respect is with reference to throat, neck and reflux (stomach contents) issues and the impact, if any, on her voice.

...

28. There is no doubt that singing has been a significant, if not the most significant, aspect of the plaintiff's vocation and avocation. At the same time, it is to be noted that she is approaching her 70th birthday and her ability and/or interest in continuing as a voice teacher will be affected by the effluxion of time. Nevertheless, at this stage, I am satisfied that the reduction in voice capacity has had a significant impact on her quality of life.

He awarded non-pecuniary damages of $75,000.

[45] In Froc, the 66-year-old plaintiff was injured in a motor vehicle accident in 2001. The trial was in 2005. Loo J. found that his injuries and their effect on him were similar to those in Ball and awarded $50,000 in non-pecuniary damages.

[46] In Pingitore, the plaintiff was awarded $45,000 in non-pecuniary damages as a result of a 1990 motor vehicle accident. The trial was in 1994. His injuries were to soft tissue and described as being moderately severe in nature. He operated a restaurant, and as a consequence of the motor vehicle accident, he was unable to continue. Wilson J. described that loss as follows:

34. I also accept as accurate the evidence of Mr. Pingitore that his injuries made it impossible for him to continue to operate his cherished restaurant. Aside from the economic loss, which I will deal with later, this was a profoundly personal loss. Having his own business had been a dream for Mr. Pingitore, who from 1954 to 1982 had been an employee of others. As I understand the law of damages, I am not allowed to compensate Mr. Pingitore for loss of a dream. Instead, I must attempt to put a value on the substitutional amenities which may be available.

Mr. Pingitore’s condition was likely chronic.

[47] Stapley was referred to as another example of how a loss that affects one’s vocation which is, in turn, a part of one’s lifestyle should attract a higher award of non-pecuniary damages than would otherwise be the case.

[48] Williams involved a 71-year-old plaintiff who was injured in a motor vehicle accident in 2002. She suffered soft tissue injuries to her lower back, which were expected to last into the foreseeable future. Her injuries were such that they interfered to a significant degree with her recreational activities. Joyce J. awarded non-pecuniary damages of $45,000 in 2005.

[49] As to the defendant’s authorities, Litwinenko is an Ontario case, in which the trial judge awarded general damages of $15,000 to the plaintiff, who was 69 at the time of her slip and fall and 76 at the time of trial. She was also awarded an amount for loss of housekeeping capacity. This case is, however, of little assistance in that the plaintiff had a series of pre-accident medical problems, some of which were characterized as falling within the notion of a “crumbling skull”.

[50] In Rota, the plaintiff was injured in a motor vehicle accident in 1998. The trial was held in 2002, by which point she was 52 years old. She suffered a moderate soft tissue injury which was slow to resolve and caused her sleep difficulties and gave rise to limitations in her ability to do household chores. She had to curtail her recreational and social activities. She was able to continue with her work as an administrative or program assistant at U.B.C. By the time of the trial, some four years after the motor vehicle accident, she continued to experience pain on a daily basis, pain which continued to interfere with her sleep. There was uncertainty as to her prognosis, but there was some basis to conclude that she would enjoy some improvement. Kirkpatrick J. (as she then was) awarded non-pecuniary damages of $30,000, in addition to an award of $10,000 for loss of housekeeping capacity.

[51] In Narvey, the 71-year-old plaintiff was involved in a motor vehicle accident some three years before the trial. He suffered a significant chest contusion which resulted in rib fractures, mild abdominal trauma, and soft tissue injuries to his neck, upper back and lower back. He had a history of back problems that were symptomatic at the time of his accident. McEwan J. concluded that, by the time of the trial, he had recovered almost to the point that he had been prior to the accident. He assessed non-pecuniary damages at $30,000.

[52] In McAvena, the plaintiff suffered a mild to moderate soft tissue injury and had prolonged difficulties as a result. At the time of the trial, some four years after the accident, she was still restricted from pursuing all of her pre-accident activities. She began to experience an improvement in her symptoms about two years after the accident and was able to return to work shortly after the accident. Her occupation and age are not given in the judgment. She was awarded $15,000 in non-pecuniary damages.

[53] The injuries suffered by the plaintiffs in Ball, Clark, Williams and Pingitore differ from those of the plaintiff in the matter at hand in terms of their likely duration. They are similar in terms of their extent and the impact on the plaintiff’s life. The plaintiff in Navey had a pre-existing symptomatic condition, and the injuries to the plaintiff in McAvena were less serious than those suffered by the plaintiff. Rota is perhaps the closest case in terms of the extent and likely duration of injury. The distinction between that plaintiff and the plaintiff in this case is on the impact of the injuries on the plaintiff’s life. Unlike Ms. Rota, Mrs. Ufimzeff was unable to return to farming, an occupation which was a source of enjoyment and fulfillment to her. She has suffered a loss of independence in that she is unable to keep her house to the standard that she formerly had and is forced to rely on her children to do that for her. Taking all of these considerations into account, I consider an appropriate award of non-pecuniary damages to be $50,000.

c) Past Income Loss

[54] The plaintiff and her husband operated their farm as an equal partnership, each claiming half of the net income for tax purposes. In addition, they rented out a trailer on the farm and they each claimed half of that net income. They sold the farm in the summer of 2006. They had listed it for sale in the spring of that year but received no offers. By happenstance, a purchaser approached them asking if they were interested in selling; they were and they sold. I am satisfied that they sold the farm because the plaintiff was unable to do her share of the work necessary to continue with its operation. Without her help, the operation was too much for the plaintiff’s husband. I recognize that he is older than the plaintiff, and at some point, he would have found it too much to continue, even with the plaintiff’s help. I am satisfied, however, that would not have happened any time soon, given the work history of the couple and the fact that the farm was a labour of love for them.

[55] The farm generated a gross income in 2001 of $4,649 and net income of $377; in 2002, the gross income was $7,375 and the net income was $968; in 2003, the gross income was $7,869 and the net income was $621; in 2004, the gross income was $8,026 and the net income was $1,692; in 2005, the gross income was $5,919 and they reported a loss of $885 (they hired outside help in 2005 for the harvest as a result of the plaintiff’s accident). In terms of past income loss from farming, I am satisfied that the plaintiff lost $2,355 in 2005, and the equivalent of $1,500 in each of the next three years for a total of $6,855.

[56] The net rental income the plaintiff reported was $970 in 2002; $2,151 in 2003; $1,960 in 2004; and $1,797 in 2005. She reported no rental income in 2006 notwithstanding that they owned the farm until August of that year. I am satisfied that she has suffered a loss of $5,000 (based on $2,000 per year) in past rental income since the motor vehicle accident.

[57] In summary, I consider that she has proven past income totaling $11,855.

d) Loss of Future Income Earning Capacity

[58] The plaintiff is now disabled from doing the work she had been doing. She has not worked off the farm for about 10 years. She had no plans to do that in the future. She is 63 years old and will continue to suffer physical limitations for the next two years as a result of the motor vehicle accident. It is not possible for her to purchase another farm at her age two years from now. But for the motor vehicle accident, I am satisfied that she and her husband would have continued to farm for the next seven years. Although the plaintiff would likely have continued beyond that point, her husband would by then be 78 years old and I doubt he would have been able to continue. She has, I am satisfied, suffered a loss of future earning capacity in the sense that notion is explained in cases such as Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.), and Brown v. Golaiy, [1985] B.C.J. No. 31 (S.C.). I would quantify that loss at the present value of $3,500 per year for the next 10 years or $30,975 (using a discount rate of 2.5 percent).

e) Cost of Future Care

[59] The plaintiff’s claim in this regard is based on three things: the first is the cost of a gym membership and a supervised exercise program; the second is the ongoing cost of future medications; and the third is the possibility that if her condition flares up, she may benefit from further physiotherapy. The evidence supports the conclusion that a gym pass and four supervised fitness sessions will cost about $800 per year. I consider that expense will last for the next three years. The plaintiff testified that she continues to take extra-strength Tylenol and Advil, sometimes every day. I think that will likely continue but decrease over the next two years. I estimate that the cost to her will be $100 per year. I am satisfied that some amount for physiotherapy is appropriate, and I fix that at $200 recognizing that it may not be necessary. I leave it to counsel to calculate the present value of the gym pass and exercise sessions, as well as the medications.

f) Special Damages

[60] The parties agree that the plaintiff’s special damages are $684, and she is entitled to judgment for that amount.

Costs

[61] Unless there are matters about which I am unaware, the plaintiff is entitled to her costs in accordance with Rule 66(29)(b).

“G.M. Barrow, J.”
The Honourable Mr. Justice Barrow

Citation:	*Ufimzeff v. Brown,*
	2008 BCSC 1188