Williams v. Oleary, 2011 ABQB 229

Court of Queen ’ s Bench of Alberta Citation: Williams v. Oleary, 2011 ABQB 229 Date: 20110630 Docket: 0603 07920 Registry: Edmonton Between: Heather Williams and Fred Williams Plaintiffs - and - Walter Oleary and Rose Oleary Defendants Corrected judgment: A corrigendum was issued on July 4, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ I.

Introduction .......................................................................................................... Page: 3 II. Background Facts .............................................................................................. Page: 3

III. The Law on Causation Applicable in this Case .......................................... Page: 4 IV. The Right Heel and Subtalar Joint .................................................................. Page: 5 (

a) Positions of the Parties ......................................................................... Page: 5 (

b) Initial Surgery and Repair of the Injured Heel .................................. Page: 5 (

c) Evidence of the Treating Physicians ................................................. Page: 7 (

d) Conclusion - Right Heel and Subtalar Joint ..................................... Page: 8 V. Credibility of Ms. Williams ................................................................................. Page: 9 (

a) Introduction .............................................................................................. Page: 9 (

b) Position of Ms. Williams ......................................................................... Page: 9 (

c) Position of the Defendants ................................................................. Page: 10 (

d) Evidence of Unreliable Character ..................................................... Page: 10 (

e) Conclusion ............................................................................................. Page: 12 VI. Discussion and Findings in Respect to Fibromyalgia ............................ Page: 12 VII. Conclusion on Scope of Injuries .................................................................. Page: 15 VIII. Damages ............................................................................................................. Page: 15 (

a) Preliminary Issues ................................................................................ Page: 16 (

i) Real annual discount rate ....................................................... Page: 16 (ii) Future activity endpoints ........................................................ Page: 16 (iii) Future disability contingencies ............................................. Page: 17 (

b) Non-Pecuniary - General Damages .................................................. Page: 17 (

c) Loss of Income ...................................................................................... Page: 19 (

i) Pre-trial loss of income ............................................................ Page: 20 (ii) Future loss of earnings ........................................................... Page: 21 (

d) Loss of household services capacity ............................................. Page: 22 (

i) Past loss of household services .......................................... Page: 23 (ii) Future loss of household services ...................................... Page: 24 (

e) Pecuniary - Future Care Outlays ....................................................... Page: 24 (

f) Pecuniary Special Damages/Out-of-Pocket Expenses Incurred by Ms. Williams ...................................................................................... Page: 27 IX.

Summary of Claim and Award ....................................................................... Page: 28

X Costs .................................................................................................................... Page: 30 I. Introduction [ 1 ] This is an assessment of damages for injuries suffered by the Plaintiff Heather Williams (“Ms. Williams”) in a motor vehicle collision which occurred in Edmonton on August 5, 2004 (“the Accident”). The Defendants have admitted liability in the Agreed Statement of Facts. [ 2 ] Mr. Fred Williams had advanced a $20,000.00 loss of consortium claim pursuant to s. 2.1 of the Tortfeasors Act , R.S.A. 1980, C. 2-5, as amended.

This claim was resolved between the parties immediately prior to trial. [ 3 ] In her claim Ms. Williams alleges that as a result of the Accident she suffered a severe fracture of her right heel bone (calcaneus), which extended into the subtalar joint and that the talus was also fractured. The damage to the subtalar joint has resulted in that joint becoming increasingly arthritic and a constant source of pain.

She also claims to have developed fibromyalgia as a result of the Accident. [ 4 ] The Defendants admit responsibility for the fractured heel and talus and the damaged subtalar joint, but dispute the extent of that injury. In particular, they take the position that Ms. Williams has not proven that she has post-traumatic arthritis in the subtalar joint. They also vigorously dispute the claim by Ms. Williams to fibromyalgia and assert that she has exaggerated her injuries for the purposes of secondary gain. The Defendants argue that she is not a credible witness and challenge the reliability of Ms.

Williams’ evidence about her alleged inability to work as a hairdresser and about many of her medical complaints. II. Background Facts [ 5 ] Ms. Williams was alone in her vehicle when the Accident occurred. She was wearing a seatbelt and was driving south on 156 Street, near the intersection of 131 Avenue. At that point, one of the Defendants pulled away from a stop sign immediately in front of Ms. Williams’ car and she T-boned the other vehicle. [ 6 ] Ms. Williams was travelling at approximately 65 kilometres per hour immediately prior to the impact with the Defendants’ vehicle.

This was a major collision and the Defendants’ van was rolled upside down. The Williams’ vehicle sustained major front-end damage and was a total loss. [ 7 ] The air bag in Ms. Williams’ vehicle deployed and struck her in the face. She suffered bruising to her right ring-finger. The impact caused her seatbelt around her chest and abdomen to tighten and caused her injury. Ms. Williams exited the vehicle and noticed blood dripping from her sock on her right foot. She was transported to the Royal Alexandra Hospital where she received initial emergency treatment.

Details of the medical treatment administered and other background information in respect to the recovery of Ms. Williams from her injuries is reviewed in future sections of this decision. III. The Law on Causation Applicable in this Case [ 8 ] The Defendants have admitted their negligence and that their negligent driving is what resulted in the collision. The principal legal dispute is the scope of the injuries caused to Ms. Williams. While the Defendants acknowledge their fault in relation to the immediate consequences of the accident, they dispute that they have caused all the symptoms reported by Ms.

Williams.

[9] The legal test for causation is found in the Supreme Court of Canada decisions of Athey v. Leonati, (SCC),[1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235 and Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333. Causation will beestablished if Ms. Williams proves to the civil standard of a balance of probabilities that the Defendants have caused or contributed to herinjuries. The general test for establishing causation is the ‘but for’ test which, in this case, requires Ms. Williams to show that a losswould not have occurred ‘but for’ the negligence of the Defendants.

The Supreme Court of Canada has recognized that in certaincircumstances the ‘but for’ test may not be workable and that in such cases causation may be established where the negligence of adefendant ‘materially contributes’ to the occurrence of the loss: Athey, supra, at paras. 13 - 15. [10] In Resurfice Corp., supra, the Supreme Court of Canada confirmed that the basic test to evaluate causation remains the ‘butfor’ test, which recognizes that compensation for negligence shall only be given “where a substantial connection between the injury anddefendant’s conduct is present” (para. 23).

The Court acknowledged that “... in special circumstances, the law has recognized exceptionsto the basic ‘but for’ test, and applied a ‘material contribution’ test” (para. 24). [11] Resurfice Corp., at paras. 20 - 26, indicates there are three requirements involved in the material contribution test: 1. it must be impossible for a plaintiff to prove causation using the ‘but for’ test, 2. the defendant must have clearly breached a duty of care, thus exposing the plaintiff to an unreasonable risk of injury, and 3. the plaintiff’s injury must result from the unreasonable risk. [12] Our Court of Appeal recently confirmed in Ball Imperial Oil Resources Limited, 2010 ABCA 111 at para. 93, 477 A.R. 251that the first requirement for applying the ‘material contribution’ exception to the ‘but for’ test is strict.

This may arise, for example,where it is impossible to prove causation due to “... current limits of scientific knowledge.”: Resurfice Corp., at para. 25. [13] Ms. Williams argues that ‘but for’ the Accident she would not have suffered the injuries of which she now complains,including the chronic pain condition emanating from her subtalar joint and the various symptoms captured under the rubric offibromyalgia, which includes episodes of serious depression. The other elements of negligence are admitted by the Defendants, butcausation on the subsequent alleged injuries is a live issue.

The ‘but for’ test is the applicable approach in this case. IV. The Right Heel and Subtalar Joint [14] I deal firstly with the heel and subtalar joint injury suffered by Ms. Williams as it was put forward as the primary source ofthe chronic pain suffered by Ms. Williams to this day. (

a) Positions of the Parties [15] The Plaintiffs argue that all impairment and pain from the injured heel is a consequence of the Defendants’ negligence.Before the injury her right foot was healthy [16] The Defendants admit that Ms. Williams suffered a right heel fracture, but dispute the extent to which her right heel/subtalarjoint has subsequently undergone further degenerative changes to part of the calcaneus (heel) bone and the subtalar joint. The Plaintiffsargue that arthritis has caused the condition of this joint to deteriorate. The Defendants say that there is not sufficient evidence presented

to prove to a balance of probabilities that Ms. Williams has post-traumatic osteoarthritis in that subtalar joint region. (

b) Initial Surgery and Repair of the Injured Heel [ 17 ] I begin my review of this question with the initial diagnosis provided by Dr. Jiang, the orthopaedic surgeon who repaired Ms. Williams’ “shattered” heel and in 2007 removed the various screws and plates which had been used to reassemble and reconstruct the many bone fragments produced by the Accident. [ 18 ] Upon presentment at the Royal Alexandra Hospital in Edmonton on August 5, 2004 Ms. Williams was diagnosed with a right calcaneus compound fracture and right navicular avulsion fracture.

A compound fracture is where a broken bone has penetrated the injured person’s skin; an avulsion fracture results where a part of bone attached to a connecting structure such as a tendon pulls away from a primary bone mass. [ 19 ] Ms. Williams was initially treated with debribement, i.e. cleaning of the open wound to her heel. She was returned to an operating room on August 7, 2004 for a second debribement and to close the wound. Ms. Williams rested in hospital, was treated with antibiotics, and had her injury dressing changed. This treatment continued until the swelling had subsided enough to allow Dr.

Jiang to perform surgery. [ 20 ] She was taken back to the operating room on August 11, 2004 to have her calcaneus reconstructed. Dr. Jiang treated the right calcaneus compound fracture with open reduction and internal fixation. During the procedure he discovered that the fracture extended into the subtalar joint, which is the interface between the calcaneus (the heel bone) and the talus bone directly above it.

Movement on this joint allows the foot to roll left and right (‘inversion’ and ‘eversion’), a movement that is particularly important when walking over uneven surfaces. [ 21 ] The multiple bone fragments of the heel were reduced and internally fixed with screws and plates. A transplanted bone graft was used for support and to encourage healing of the bone fragments. Ms. Williams was described as tolerating the procedures very well and no complications were experienced during the actual operation. [ 22 ] However, Ms. Williams was readmitted to the hospital on August 17, 2004 by Dr.

Semeniuk for a further four day stay to treat a bone infection (osteomyelitis). Intravenous antibiotics were administered, the infection was eliminated and Ms. Williams was discharged. [ 23 ] The cast on Ms. Williams’ right foot was removed on October 12, 2004. [ 24 ] Several months after the Accident, Dr. Jiang prepared a medical/legal report dated December 21, 2004, which included this prognosis: Prognosis: Ms. Williams suffered from a right-sided calcaneus compound fracture and right-sided navicular bone avulsion fracture.

The navicular fracture healed on its own and the calcaneus fracture also healed after the open reduction and internal fixation procedure. Due to the fact that the fracture was involved into the right subtalar joint, I would anticipate that Ms. Williams is more likely than not to suffer from long-term chronic pain due to the injury . I also estimate that Ms. Williams will suffer from 6 percent whole person impairment, as a result of her right-sided calcaneus fracture according to the Guides to the Evaluation of Permanent Impairment , Fifth Edition, p. 547. (Emphasis added.) [ 25 ] In the

summary portion of a subsequent medical/legal report, dated August 15, 2006, Dr. Jiang opined that:

Mrs. Williams suffered from right calcaneus and talus fracture which had been managed with surgical treatment. Now her fracture has completely healed but she still suffers from pain and stiffness of her right ankle. Her physical examination showed that she lost 10 o of dorsiflexion of the right ankle. Mrs. Williams is now 2 years after her initial injury and I would consider that she has reached her maximum medical improvement. Based on the fact that her calcaneus fracture was interarticular, I would estimate that Mrs.

Williams is suffering from 6% whole person impairment according to the Guide to the Evaluation of Permanent Impairment , 5 th edition, page 547, table 17-33. [ 26 ] Ms. Williams had also been treated by her general practitioner Dr. Semeniuk, who observed on February 12, 2007 in a chart entry that she could see degenerative changes in the subtalar joint, i.e. arthritis. Ms. Williams continued to report serious pain from her right ankle. [ 27 ] In April 2007 Ms. Williams underwent further surgery to remove the plates and screws used to repair her heel in 2004.

The hope was that the removal of these items would reduce the discomfort which Ms. Williams had continued to experience. However, her pain persisted after the 2007 procedure. (

c) Evidence of the Treating Physicians [ 28 ] At trial I qualified Dr. Jiang as an expert in the field of orthopaedic surgery, capable of giving opinions in respect to the diagnosis, treatment and prognosis for Ms. Williams, including opinions in respect to degenerative changes in her subtalar joint. Dr. Semeniuk also testified and I accept her evidence as well. The Defendants have argued that her testimony ought to have reduced weight as Dr. Semeniuk operated as an advocate rather than a independent witness. I disagree.

She was a forthright and direct witness, I do not think her obvious concern for her patient’s well-being distorted her evidence. [ 29 ] Based on the opinions expressed in Dr. Jiang’s medical/legal reports and also on his viva voce evidence at trial and the information found in the charts of Dr. Semeniuk and her viva voce evidence at trial, I make the following findings of fact in respect to the heel/subtalar joint injury: (

a) the right calcaneus (heel) bone was “shattered” by the force applied to the right foot and ankle in the Accident; (

b) the right talus bone was also fractured and those fractures extended into and damaged the subtalar joint, which lies between the right calcaneus and the right talus bones; (

c) by November 23, 2004 the right calcaneus (heel) bone had healed; (

d) the subtalar joint was damaged and the bone surfaces of that joint were no longer smooth or “congruent” because the “shattered” bones in the calcaneus could not be fully repaired; (

e) the cartilage of the right subtalar joint underwent a ‘moderate’ amount of injury, namely: (

i) some components of the cartilage were entirely destroyed, (ii) other cartilage structures were compressed and damaged, and (iii) the calcaneus and talus joint articulates on three facets (surfaces) and of these the middle and anterior facets suffered the greatest

(iii) the calcaneus and talus joint articulates on three facets (surfaces) and of these the middle and anterior facets suffered the greatest cartilage loss, damage to the posterior facet joint cartilages was more restricted; (

f) the damage to the subtalar joint cartilage was of a kind and degree that Ms. Williams’ body was unable to repair and replace; instead, the subtalar joint repaired itself with scar tissue which does not provide a smooth movement interface surface; this degenerative repair has caused arthritis in the right subtalar joint; (

g) the destruction and compression of the cartilage in the joint and ongoing age-dependent deterioration of the remaining cartilage has led to bone on bone contact, pain, and further joint dysfunction; (

h) the compromised right subtalar joint is a source of chronic pain which will progressively worsen as the cartilage in the subtalar joint continues to degenerate with age, and the bone-on-bone contact increases; (

i) the pain from this compromised joint has already increased between the injury date and the time of trial, the only realistic progression is that the pain and joint dysfunction will increase; and (

j) Drs. Jiang and Semeniuk conclude Ms. Williams has post-traumatic osteoarthritis in her right subtalar joint, and this condition is a source of long-term chronic pain. (

d) Conclusion - Right Heel and Subtalar Joint [ 30 ] Ms. Williams has proven to my satisfaction that the initial damage to the calcaneus (heel bone), the talus and their connecting structures in the subtalar joint were caused by the Defendants’ negligence. The same is also true for the subsequent degenerative changes at the subtalar joint, and the associated dysfunction and pain. [ 31 ] Some of the chronic pain being suffered by Ms. Williams emanates from this damaged and progressively degenerating subtalar joint.

The chronic pain has impeded her ability to function; she can no longer stand for any more than a short period of time, or walk over longer distances. She tends to favour her left leg, which has led to other problems. All of these consequences are found by me to be attributable to the Accident and were caused by the Accident. V. Credibility of Ms. Williams (

a) Introduction [ 32 ] Ms. Williams’ credibility is a central issue according to the Defendants. Their opening position, which was reaffirmed during argument, is that Ms. Williams is either misrepresenting the extent of her injuries or grossly exaggerating the degree and extent of her pain. Some of the expert witnesses for the Defendants, specifically Mr. Tim Hall and Dr. Berendt, went even further and advanced their belief that Ms. Williams had exaggerated her injuries for secondary gain. [ 33 ] As counsel for the Defendants has pointed out, pain cannot be objectively measured and the case for Ms.

Williams turns on whether the Court accepts the extent of her injuries and related pain complaints. Accordingly, the credibility of Ms. Williams is, as counsel for the Defendants stated, “at the forefront” of the determination of many aspects of this Action, but particularly the fibromyalgia claim and the extent to which Ms. Williams may have been impeded from continuing her hairdresser occupation. [ 34 ] I approach my analysis of this critical question by first setting out a brief

summary of the positions of the parties on this issue. I then provide some reasons on whether I accept Ms. Williams as a credible witness and conclude on the extent to which her evidence on

the subject of pain and her ability to work is reliable. (

b) Position of Ms. Williams [ 35 ] Counsel for Ms. Williams argues that she was a candid and truthful witness who should be believed. Her testimony included issues which were deeply personal to her, such as her struggle with depression and an attempted suicide in 2008. [ 36 ] Her counsel argued that there is a great deal of independent evidence from medical doctors, such as Drs. Semeniuk, Jiang and Sholter and even the Defendant’s expert Dr. Russell, to confirm many aspects of the medical basis for her claims.

The weight of this evidence is, of course, quite distinct from whether her evidence is believable. [ 37 ] Her counsel also point to documentary evidence such as tax returns and other business records which show her earnings over the years are reliable. [ 38 ] However, to succeed on the fibromyalgia claim, in particular, Ms. Williams must concede that either I believe her and accept her evidence, or I do not. (

c) Position of the Defendants [ 39 ] The Defendants employ a variety of techniques/approaches to challenge the truthfulness of Ms. Williams as a witness and the reliability of her evidence, especially in respect to her subjective complaints of pain and her alleged inability to continue to perform her occupation as a hairdresser. [ 40 ] The methods included indirect challenges through such experts as Mr. Hall and Dr. Berendt. The Defendants also enumerate what they assert to be many inconsistencies between Ms.

Williams’ testimony at trial and previous statements in examinations for discovery and to various professionals in the course of her assessments, including her own treating doctors and vocational assessors. Further, based on the surveillance video the Defendants argue that Ms. Williams is far more functional and capable than she claims. Finally, they assert that Ms. Williams is out to defraud insurance companies. This allegation is based primarily on a video that shows Ms. Williams’ involvement in settling an unrelated vehicle damage claim made by her daughter. (

d) Evidence of Unreliable Character [ 41 ] Dealing firstly with the indirect challenges through the evidence of others, I refer in particular to the testimony of Mr. Tim Hall and Dr. Berendt, who both suggest that Ms. Williams exaggerated her injuries for the purposes of secondary gain. For example, Mr. Hall asserted that her reported symptoms were not consistent with her test results. He suggested she provided sub-maximum effort during her testing, and points to her apparent ability to open doors and to walk without pain to and from her car in the parking lot. [ 42 ] He further suggested that Ms.

Williams tended to exaggerate based on his review of her income tax returns, which he did not think indicate the level of income and revenue that Ms. Williams had revealed to him during their interviews together. Dr. Berendt made similar assertions in his reports and evidence. He in turn used Mr. Hall’s report to conclude that Ms. Williams was exaggerating her symptoms and accused her of malingering for secondary gain. [ 43 ] In respect to the use of indirect challenges through assessors, I agree with the statements of my colleague McIntyre, J. in Guthmiller v.

Krahn , 2000 ABQB 444 , 268 A.R. 369 , affirmed on other grounds 2001 ABCA 266 , 293 A.R. 277 about using the evidence of experts to attack a plaintiff’s credibility. He at paras. 21-22 characterized such practices as reverse oath helping.

[ 44 ] I do not find it a very convincing way to launch a challenge at this particular Plaintiff, given that she was available to cross- examine in the courtroom and was extensively challenged in that setting. Accordingly, I assign these observations of these witnesses little weight in my assessment of the credibility of Ms. Williams. [ 45 ] Moving on to the performance of Ms. Williams in the courtroom under cross-examination, the Defendants have a somewhat stronger basis to challenge Ms. Williams’ credibility. For example, the Defendants point out that Ms.

Williams was not accurate in her recollection of the number of plates or screws which had been inserted into her heel. They point out that her claims to have been bedridden for several months after the initial surgery were inconsistent with what she had said at examinations for discovery. The Defendants point out that Ms. Williams may have overstated the extent to which she performed certain exercises recommended by a physiotherapist. They point out that on a number of occasions she took different positions in explaining the infamous sod-laying incident portrayed in the surveillance video.

These are some of the many examples put forward by the Defendants to challenge Ms. Williams and establish a lack of candor on her part. [ 46 ] A challenge to credibility based on inconsistencies in statements made under oath at different times is always of great concern to the Court. However, whether the inconsistencies are sufficient to undermine or destroy the credibility of a party witness requires that that evidence be examined in the context of the overall case made for that party. [ 47 ] In this case Ms. Williams is a claimant who was injured in an accident which occurred in 2004.

Almost seven years later she testified in this trial. Some of the examinations for discovery of Ms. Williams had taken place in May of 2007, almost three years before the trial. The case has been vigorously defended and it was made clear to Ms. Williams through the expert reports of the Defendants and then at trial that she was considered to be a malingerer and someone who was out to defraud insurance companies, i.e. the car damage claim video involving her daughter. She has been subjected to many personal and financial stresses.

She has been diagnosed as suffering from depression and recounted a suicide attempt. [ 48 ] As a witness she presented as someone caught up in an interminable legal process where her character was vigorously challenged by the Defendants through cross-examination and other means. [ 49 ] I have already found as a fact that she suffered a serious ankle injury capable of causing chronic pain. In addition I observe that Ms. Williams came across as a person of limited formal education who was hurting and frustrated by the whole insurance claim and subsequent trial process.

She also came across as an insecure person, which perhaps explains her defensiveness in responding to aggressive questioning from counsel for the Defendants. [ 50 ] A particular example of this defensiveness occurred in her response to the cross-examination about her involvement in the alleged attempt to defraud an insurance company recorded on a surveillance video. My sense was that she had become so upset and frustrated by that point she became somewhat careless in her responses.

However, when her answers are put in the overall context of her evidence, both in direct and cross-examination, she did not give me the impression that she was trying to deceive the Court in any way. Indeed, her performance in the witness box convinced me that she was generally a responsive witness who was doing her best to tell the truth as she knew it. She was not an evasive witness, but as I have observed, was sometimes rather defensive. [ 51 ] Turning to the use of the surveillance video and what it reveals about Ms. Williams and her state of pain, I have a number of comments.

The Defendants placed a great deal of reliance on the surveillance videos to somehow show Ms. Williams exaggerates her claims about the extent of her disability. The Defendants showed these recordings both to Ms. Williams and to a number of the experts who were called by the Defendants to establish that Ms. Williams is a malingerer out for secondary gain. [ 52 ] However, my review of these highly edited videos leads me to exactly the opposite conclusion to that asserted by the Defendants. At the core of the case for Ms.

Williams are her many complaints in respect to difficulty walking any distance because of an increasing sense of pain from her right foot/ankle, a tendency to favour her left side over her right, the fact her limp becomes more pronounced as the day goes on and that she was unable to stand for any lengthy period of time. Yet these reported behaviours are exactly what the surveillance video revealed. [ 53 ] The video recordings are evidence on which the Defendants want to place great reliance. However, for me it is instead

powerful evidence leading me to conclude that Ms. Williams is telling the truth about her painful condition and her body’s response to it, i.e. limping, favouring her left side and difficulty standing on both feet for long periods. The recordings also show me that her condition did deteriorate over a short period of time. Therefore, I take what I saw on the surveillance videos into account in concluding that Ms. Williams is a credible witness and that, generally speaking, her evidence can be treated as reliable, certainly reliable enough for me to conclude that her complaints of chronic pain provide an adequate basis for a diagnosis of fibromyalgia. (

e) Conclusion [ 54 ] Accordingly, in respect to the credibility of Ms. Williams, I find her to be a truthful witness and her evidence to be generally reliable. This conclusion is reinforced by the considerable evidence from witnesses who are independent, particularly Drs. Jiang, Semeniuk, Sholter and Dr. Russell. I have already found as a fact that the injury to the heel/ankle is a source of chronic pain and that in turn reinforces my conclusion that she is telling the truth about that core dysfunction. VI. Discussion and Findings in Respect to Fibromyalgia [ 55 ] Having concluded Ms.

Williams’ testimony is credible and reliable, I am now in a position to evaluate the alleged fibromyalgia condition. Fibromyalgia is a recognized medical disorder characterized by chronic widespread pain with ‘tender points’. [ 56 ] I have already referred to some of Dr. Semeniuk’s evidence in respect to the progressive aggravation of the arthritic condition of the subtalar joint and discussed that injury as a source of chronic pain suffered by Ms. Williams. Dr. Semeniuk also gave important evidence in respect to the fibromyalgia claim. [ 57 ] Dr.

Semeniuk was qualified as a medical doctor with a specialty in the field of family medicine. I accepted her as an expert, capable of giving opinions in respect to the diagnosis of Ms. Williams’ injuries, including the physical, emotional and psychological aspects of those injuries. Dr. Semeniuk provided a description of Ms. Williams’ pre-Accident medical conditions, her post-Accident medical evolution, and her ongoing prognosis given those injuries. Dr. Semeniuk also provided evidence I accept on restrictions to Ms.

Williams’ ability to carry out domestic chores, engage in recreational activities, and pursue her vocation as a hairdresser. Counsel for the Defendants accepted Dr. Semeniuk as “a very qualified G.P.”. [ 58 ] Dr. Semeniuk gave her evidence in a straightforward manner and referred to her detailed chart notes on Ms. Williams which cover the period August 5, 2001 to April 1, 2010. She has served as general practitioner to Ms. Williams since 1991. As a result, Dr. Semeniuk was very familiar with Ms.

Williams’ medical history and in particular with the progression of the right heel/subtalar joint injury. [ 59 ] The continuity of Dr. Semeniuk’s contact with Ms. Williams through the professional doctor/patient relationship is a very important feature of this case, particularly in respect to the fibromyalgia claim. It was suggested by the defendants that Dr. Semeniuk was an advocate for her patient Ms. Williams. However, that was not my impression of her at all and as I have previously stated I accept her evidence without reservation. Dr.

Semeniuk’s evidence was reliable and well documented and I give her evidence great weight in respect to the development of arthritis in the subtalar joint and also in respect to all aspects of the fibromyalgia claim, including the chronic pain which emanates from the heel/subtalar joint injury, her observations in respect to stress suffered by Ms. Williams and the depressive disorders arising therefrom. She was helpful in establishing Ms. Williams’ limitations in carrying on her vocation as a hairdresser. [ 60 ] In her letter of October 29, 2008, the contents of which were confirmed during oral testimony, Dr.

Semeniuk offered the following prognosis for Ms. Williams:

Prognosis: In the short term Heather has suffered significantly both physically and mentally with great mental anguish. She has also suffered significantly financially as she is not able to work. The stress is causing her numerous other problems including heartburn/gastritis and stress related depression. I would defer the exact amount of long term disability but I believe that she will be left with long term residual problems with regard to the injuries she sustained from the motor vehicle accident. I would also call these injuries permanent and she is now at a level that she will maintain long term.

The effort now will be to help control her pain and symptoms. I am not sure what kind of gainful employment she can go back to because she has trouble walking, standing for more than five minutes and cannot do any lifting. Also because of the fibromyalgia that she has developed, she cannot sit for any period of time. She even has trouble with daily functioning. She will require long term treatment. This is very important evidence about Ms. Williams. [ 61 ] Dr. Sholter was also called as an expert witness by the Plaintiff.

I qualified him as a medical practitioner with a specialty in rheumatology, capable of giving opinions in the area of fibromyalgia and chronic pain. Dr. Sholter in his April 18, 2006 letter addressed to Dr. Semeniuk opined that: This woman’s symptoms of widespread muscoskeletal pain with tender points would be consistent with fibromyalgia. Fibromyalgia is known to come on after a stressful event such as a motor vehicle accident. Her lack of sleep may also relate to stress. [ 62 ] In his oral testimony he expressed the opinion that the Accident caused the chronic pain and fibromyalgia afflicting Ms.

Williams. [ 63 ] Based on the evidence of Drs. Semeniuk and Sholter and as confirmed by Dr. Russell, I make the following fact findings: (

a) prior to the Accident Ms. Williams functioned normally, was capable of working full-time and had worked full-time for many years, did not experience chronic pain and did not have fibromyalgia; (

b) pre-Accident episodes of fatigue were accurately described by Ms. Williams as bronchitis and a type of mononucleosis; (

c) pre-Accident chiropractic treatment by Dr. Chipperfield was to address neck pain complaints caused by Ms. Williams’ employment and sleeping position; (

d) Ms. Williams was generally healthy prior to the Accident and fully able to work full-time as a hairdresser; (

e) fibromyalgia emerged due to the chronic pain arising from the damaged subtalar joint and the progressive post-traumatic osteoarthritis, combined with the stress caused by Ms. Williams’ being unable to continue her work as a hairdresser, her limited domestic housekeeping abilities, and restricted recreational options; (

f) Dr. Semeniuk’s prognosis in the opinion letter of October 29, 2008 and confirmed again during oral testimony is accurate; and (

f) Dr. Sholter’s evidence, as an expert rheumatologist, confirms that Ms. Williams’ fibromyalgia condition was caused by the Accident. VII. Conclusion on Scope of Injuries

[64] Ms. Williams has proven to my satisfaction that she did suffer the following immediate direct injuries in the Accident. (

a) severe fracture (“shattering”) of the right calcaneus bone, and fracture of the right talus bone, the injuries to both bones extendingto the subtalar joint; (

b) substantial damage to the cartilages of the subtalar joint, with a result that direct contact occurs between the right calcaneus andtalar bones. [65] Subsequent to the immediate injury, the injured subtalar joint structure has progressively degraded with the formation of scartissue and the further loss of remaining cartilage. This process has resulted in osteoarthritis in that joint. That arthritic condition andassociated pain can be expected to not improve and can be expected to become worse.

The subtalar joint degradation and associatedarthritis are a temporally separate but direct consequence of the Defendants’ negligence. [66] I am also satisfied that Ms. Williams suffers from fibromyalgia, and that condition was also caused by the Accident. [67] Prior to the Accident Ms. Williams was in generally good physical and mental health. She had a history of full-timeemployment as a hairdresser, and there is no identifiable basis to conclude that she would have not continued that pattern of employmentuntil retirement. VIII.

Damages [68] The rule that determines damage awards in tort injury cases is clear (Viscount Dunedin in Admiralty Commissioners v. S.S.Susquehanna, [1926] A.C. 655, at p. 661 (cited with approval in West & Son Ltd. v. Shephard, [1964] A.C. 326, at p. 345), see also Andrews v. Grand & Toy Alberta Ltd., (SCC), [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452): ... the common law says that the damages due ... for tort are damages which, so far as money can compensate, will give the injured partyreparation for the wrongful act ... (

a) Preliminary Issues [69] A number of issues related to compensation have broad implications for the calculation of damages in this case. I will addressthese first, and then proceed to evaluate specific injuries allegedly suffered by Ms. Williams. (

i) Real annual discount rate [70] The expert economists for the parties disagreed as to how future losses should be calculated. Dr. Jenkins for the Plaintiffsuggested future damages should be calculated with a real annual discount rate, net of inflation and real economy-wide wage growth, of3%, although his reports indicate he used (without explanation) a different discount rate, 3.5%, for future lost housekeeping and specificcare costs (see April 8, 2010 report at para. 13, and September 24, 2009 report at para. 13). Ms.

Reichert for the Defendants, suggested arate of 1.75% for the first five years, post-trial, and then a subsequent 2.75% rate. Her estimate is derived from various recent investmentoptions and their returns.

[71] In Malinowski v. Schneider, 2010 ABQB 734, Justice Shelley has recently considered whether discount rates are betterevaluated on a long or short term. She observed at para. 355: ... I put limited weight on those submissions on the basis that it is plain to all that the world economy has undergone dramatic changes inthe recent past, and that any future projection is, at best, highly speculative. Economically, these are unsettled times. Instead, I havegenerally favoured expert evidence that has used longer-term economic averages, and trade-specific information.

I prefer longer sampleperiods to ... address both the present economic uncertainty and the historic cyclic economic pattern of ‘boom and bust’ that has proventypical for Alberta. ... [Emphasis added.] [72] I agree with this observation. The Defendants’ liability will extend for decades into the future, with the result that the presentand short-term state of the economy is of limited relevance. All of her future losses will be calculated using a 3% net real annual discountrate. (ii) Future activity endpoints [73] Dr. Jenkins calculated Ms.

Williams future losses based on her retiring at age 63.7 years, which is the average retirement ageof Albertans. Ms. Reichert noted that retirement age is approximately that of self-employed females, but that female private sectoremployees typically have a somewhat earlier retirement age, closer to 62 years. Male private sector employees such as Mr. Williamstypically retire at a similar age, and Ms. Reichert suggests the couple would work for a similar length of time. [74] I prefer the 63.7 retirement age. I do not see how a couples’ retirement ages would ‘coordinate’, Ms.

Reichert does not appearto base her analysis on their respective ages. Factually there is a basis to project that Ms. Williams would have continued to work to agreater age, because her husband’s ability to work and earn income has been impaired by serious back injuries. It is therefore reasonableto expect that Ms. Williams would extend her career as a hairstylist to at least the typical retirement age of a self-employed person. [75] Ms. Reichert and Ms. Appelt limited their evaluation of lost housekeeping services up until Ms. Williams was 80 years ofage.

I accept this value as an end-point for that damage calculation. (iii) Future disability contingencies [76] The economists used different statistical data to calculate the probability that Ms. Williams would have been disabled andunable to work, if she had not been injured by the Defendants’ negligence. Dr. Jenkins used values extracted from Christopher J. Bruce, Assessment of Personal Injury Damages, 4th ed. (Toronto: Butterworths, 2004), however that source does not segregate disabled butworking persons from those who are disabled and cannot work. Ms.

Reichert suggests that a better model is provided by the disabilityrate reported by the Canada Pension Plan. I agree. Future contingencies will use the Canada Pension Plan disability incidence andtermination rates. (

b) Non-Pecuniary - General Damages [77] An award of general damages cannot restore Ms. Williams to her condition prior to the injury. The purpose of a generaldamages award is to compensate Ms. Williams for the pleasure and enjoyment of life that she has lost: Andrews v. Grand & Toy AlbertaLtd., (SCC), [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452. The Supreme Court of Canada in Andrews v. Grand & ToyAlberta Ltd. set the maximum for general damages at $100,000.00. Adjusted for inflation, in 2010 that amount is $360,000.00. [78] In assessing general damages, I must take a principled approach, taking into account a number of factors including the limits

imposed by the Supreme Court of Canada, the severity and duration of the injuries, the degree of impairment, prognosis and the effect of the injury on the day-to-day life of Ms. Williams. [ 79 ] The scope of her injuries have been detailed previously. However, in review, Ms. Williams suffered a compound fracture of the right calcaneus, extending into the subtalar joint. Her right heel was ‘shattered’ as a result of the forces applied in the Accident. The boney structure in the calcaneus and talus bones have mended and the open wound healed.

However, the repair to these bones did not restore the surface of the subtalar joint to a smooth condition and there was moderate cartilage damage. The cartilage in the subtalar joint continues to degrade and there is osteoarthritis in that joint. The osteoarthritis in the subtalar joint has led to pain complaints which will worsen as Ms. Williams ages. [ 80 ] Ms. Williams’ recovery was not simple, and she experienced a significant infection and was negatively affected by the methods used to reconstruct her right heel.

The sometimes severe pain emanating from her foot injury has triggered many other consequences and I have found that she suffers, inter alia, from chronic pain, related stress and severe depression, severe enough to lead her to attempt suicide. [ 81 ] The parties have taken the approach that non-pecuniary damages for Ms. Williams can best be determined by comparison with awards to other persons who have received pain and suffering damages following foot injury. The relevant facts are summarized below, along with the damages awarded, adjusted to their 2010 equivalents. Plaintiff’s Authorities : Wozniak v.

Alexander , 2008 ABQB 430 , 450 A.R. 329 , affirmed on other grounds, 2009 ABCA 353 , 464 A.R. 196 - the plaintiff’s foot was injured by an outboard propeller while boating, her heel was almost severed. Post-injury the affected foot had a reduced range of motion (para. 53) and walking was impaired (para. 53). She was no longer able to walk or stand for extended periods and her ability to participate in professional and recreational activities are restricted (para. 53-54). Her risk of arthritis was increased (para. 53). The court awarded $122,640.00. Daniel-Cuffy v.

Pereira , [2005] O.T.C. 736 , 141 A.C.W.S. (3d) 758 (Ont. Sup. Ct. J.) - the plaintiff’s right heel was permanently injured as a consequence of a head-on motor vehicle collision (para. 1). The bone injury was not dissimilar from that of Ms. Williams (paras. 4, 8). The injury restricted foot movement (para. 22), and caused difficulty in walking and leg asymmetry (paras. 22, 28). Pain and arthritis were a permanent result (paras. 24, 29). The plaintiff could not continue her career as a nurse (paras. 23, 30). The general damages award was $163,230.00. Defendants’ Authorities : Dunnett v.

Mills , 2004 NBQB 136 , [2004] N.B.R. (2d) (Supp.) No. 20 - an automobile accident led to a fractured talus with complications that ultimately included loss of foot movement range, arthritis, and the progressive deterioration of the talus. The plaintiff’s ability to work and engage in recreation activities was affected. Notably, the initial injury in this case was comparatively minor but had unusual and dramatic consequences. The plaintiff does not appear to have experienced psychological issues. $66,278.00 in general damages was awarded. Dabrowski v.

Robertson , 2007 ABQB 522 , 419 A.R. 359 , affirmed on other grounds, 2009 ABCA 105 , 457 A.R. 105 - Veit J. rejected a claim that a truck driver was injured as a consequence of negligent roadside parking by a motorist. An award for the plaintiff’s injures was indicated, including a $78,617.00 amount for general damage that relate to a fractured left ankle and subtalar joint impairment, a “functional impairment” (para. 133). A further $26,206.00 in general damages was assigned to various other physical injuries and post- accident depression and post-traumatic stress disorder (para. 134).

The plaintiff’s ability to work was minimally impacted by the injury. D’Oliveira v. Kal Tire Ltd. , 2008 BCSC 1638 , 173 A.C.W.S. (3d) 648 - defective maintenance of an automobile’s brakes led to a collision in which the driver had a crushed heel, fractured ribs and a damaged neck vertebra. The patient recovered well, with some risk of future arthritis in the affected foot (para. 29). General damages of $40,209.00 were awarded.

[ 82 ] The Defendants argue that the cases cited by the Plaintiffs are poor analogues, in particular in that the specific injuries were different from that experienced by Ms. Williams. I disagree, and conclude that while parallel injuries are very helpful, what is even more relevant are the consequences of the injuries. For example, D’Oliveira v. Kal Tire Ltd. is not particularly helpful (except as an outlier) in that the plaintiff may have experienced a similar injury but the total consequences were far less severe than those experienced by Ms. Williams. [ 83 ] Wozniak v. Alexander and Daniel-Cuffy v.

Pereira involve plaintiffs who experienced injuries with consequences in many senses comparable to that suffered by Ms. Williams. Dabrowski v. Robertson is also helpful in that it provides some guidance on a combination of physical and serious psychological disability, with total damages of $104,823.00. Notably, the injury in Dabrowski v. Robertson did not impede the plaintiff’s ability to work as a truck driver and he was able to “... move fluidly, without a limp” (para. 50), a much less serious level of operational impairment than I have found in respect to Ms.

Williams. [ 84 ] In this instance I favour an award on the higher end of the spectrum because of the degree to which Ms. Williams’ heel injury has affected her professional options, has caused significant psychological effects, and led to a further debilitating condition, fibromyalgia. In this situation and based on all of the evidence and circumstances which have been described to me, I assess general damages in the amount of $145,000.00. (

c) Loss of Income [ 85 ] The parties broadly dispute both Ms. Williams’ pre-trial and future loss of earnings. Ms. Williams argues that she would have made a large sum of money if she had been able to continue her St. Albert hairdressing operation. The Defendants argues that she is owed nothing, she could have returned to that work at almost any time. [ 86 ] I have previously concluded that Ms. Williams has not exaggerated the effect of her injuries and that she does, in fact, experience fibromyalgia. This is not a malingering worker, Ms. Williams is not able to stand for extended periods. [ 87 ] Ms.

Williams testified that her injury all but eliminated her ability to practice her former profession. She was supported by Dr. Semeniuk and Occupational Therapist Joanne Appelt. The Defendants have suggested that a combination of a sit-stand chair and ankle brace would allow Ms. Williams to return to work. I disagree, and accept the evidence that hairstyling requires a range of tasks and associated body positions that are incompatible with these suggested ameliorative devices, particularly for a single worker in a home studio setting.

That workplace impediment has only increased with the emergence of fibromyalgia. [ 88 ] Mitigation is not an issue. Ms. Williams did not work for the first two years after the accident because that was what her doctors ordered. She lost access to the trade in which she had expertise and a personal business. I see no error in her planning to continue that occupation until her evolving post-injury state resulted in her being unable to continue on that path.

Her only alternative is to retrain, and that process involves its own issues. [ 89 ] Given these conclusions, the chief issue is to reconstruct the probable past and future earnings that Ms. Williams would have received if she had not been injured. The parties disagree on that too. (

i) Pre-trial loss of income [ 90 ] Ms. Williams worked in a number of hairstyling workplace arrangements. In August 2002 she set up a salon in her St. Albert home and worked ‘solo’. Before that, in 2000-2002, she had been one of four hairdressers who together operated a hairstyling business in Morinville. Her income in Morinville was significantly lower than in St. Albert.

[ 91 ] The Defendants suggest that I should accept the approach of Ms. Reichert and evaluate Ms. Williams’ probable income by averaging her income over either a three (2001-2004) or five year period (1999-2004), and then project the average as a stable base income into the future. [ 92 ] Dr. Jenkins took a different approach and projected her post-injury business income from two bases. First, Ms. Williams’ known income between April 2003 and March 2004 was $17,376.00. Accounting for inflation and growth, her April 2005-March 2005 income would be $20,485.00. Dr. Jenkins then suggested Ms.

Williams income would be best evaluated by using statistical averages, either the 2006 census ($23,176.00/year), or 2009 Alberta Wage and Salary Survey experienced hairstylist average ($41,254.00/year), and projecting her subsequent incomes from one of these amounts. [ 93 ] The risk in this kind of investigation is that ‘cherry picking’ particular data-points can produce a substantially different result. I conclude for a number reasons that the most relevant income data is from Ms. Williams’ operation in St. Albert.

The home salon was a substantially different business with associated tax-relevant business expenses. Further, the home salon was entirely under Ms. Williams’ control; she was her own boss. I think that it is risky to apply results from one kind of business to another and here a ‘sole proprietorship’ is a significantly and substantially different context than working in a partnership or as an employee. That means Dr. Jenkin’s 2003-2006 approach is generally more appropriate to evaluate the probable income of Ms.

Williams. [ 94 ] The salon, as an incorporated business, had significant start-up costs, but was showing increased revenue. Ms. Williams testified that she was in the process of increasing her charges to better conform to the St. Albert marketplace standards. I conclude the home salon’s revenue had a realistic probability of reaching the 2006 census level; it was already getting close to that level. However, I do not see how the data supports a further projected increase to the $41,254.00 Alberta survey value for 2009.

That conclusion is not an indication of my evaluation of the overall probable future success of Ms. Williams’ home salon, but rather reflects that I would require further expert testimony that a home business of this kind had a very predictable evolution before I could make that leap on the standard of a balance of probabilities. [ 95 ] Dr. Jenkins has calculated up to trial, and taking into account growth and inflation, taxes,

Section B and Industrial Alliance benefits, and pre-trial interest, Ms. Williams would have earned $73,028.00. Mr. Reichert identified an error in Canada Pension Plan contributions that would reduce this amount by $2,143.00, leaving $70,885.00. I choose this value on a balance of probabilities. (ii) Future loss of earnings [ 96 ] Dr. Jenkins provided several post-trial earning loss scenarios. One set uses the 2006 census data as a basis to project future income and I have accepted this model. Using the 63.7 retirement age and 3% real annual discount rate Ms.

Williams is projected to require a future income loss award of $306,061.00. Ms. Reichert’s proposed awards are irrelevant given my conclusions in relation to the probable post-injury income from the hairstyling business. [ 97 ] Ms. Reichert noted an apparent error in Dr. Jenkins’ calculation, that he underestimated the future income tax due from Ms. Williams by $304.00, see Trial Exhibit 31. Ms. Williams’ future income award will need to be recalculated taking that revision into account. [ 98 ] My understanding is that the future income award calculated by Dr.

Jenkins does not include an appropriate tax gross-up, and I instruct the parties to recalculate that amount to take into account the discount rate as discussed above at paras. 70-72. Similarly, the CPP disability rates discussed in para. 76 should be used to recalculate the appropriate future loss award. (iii) Mitigation strategies [ 99 ] Another area of disagreement is whether Ms. Williams is able to mitigate her damages, that is, can she return to the workplace and partially or completely replace the earnings she would have obtained from her hairstyling business. The crux here is

whether it was meaningfully possible for Ms. Williams to return to any job, and if so, what job? [ 100 ] The Defendants argue that Ms. Williams’ capacity to work is only slightly affected. Mr. Hall, who conducted a “functional capacity evaluation” in 2008 concluded that Ms. Williams required minor technological aids to return to her hairdressing career by 2005 or in the worst scenario by 2006. Dr. Berendt concluded Ms. Williams was malingering. The Defendants have built their position that Ms. Williams was employable on these assumptions, which I have rejected.

Accordingly, the reports of those experts and their oral opinions are of limited assistance to me. [ 101 ] Mr. Brian Hawrelak provided a ‘vocational evaluation’ of Ms. Williams in February 2007, and an updated report on July 2009. Both conclude that hairstyling is no longer an option. He concluded in his initial report that alternative careers which did not exceed Ms. Williams’ capacity would fall into basic services such as a cashier, or involve an office or clerical setting.

Her income as a full-time worker could range between $20,000.00 and $35,000.00, but the higher paying positions would require significant retraining and education (1.5-3 years). [ 102 ] The 2009 report provides a less favourable projection for mitigation. Ms. Williams had experienced difficulty in her re- education and training efforts, meaning that in Mr. Hawrelak’s opinion there was a very low probability that Ms. Williams would complete her retraining in a relatively short period of time. Given her age the prospects of clerical or administrative employment were limited.

In his opinion, her deteriorating condition meant the only realistic prospect for mitigation is part-time employment in a services role with an associated yearly $6,500.00 income. However, Mr. Hawrelak’s opinion was that Dr. Semeniuk’s most recent report indicated Ms. Williams was no longer meaningfully employable. [ 103 ] In light of Dr. Semeniuk’s testimony at trial I agree that Ms. Williams is most probably no longer employable in any setting. Her deteriorating condition, as I have previously explained, is the result of the Defendants’ negligence. I therefore assess Ms.

Williams’ future loss of income at $306,061.00, less the adjustments identified above at para. 98. (

d) Loss of household services capacity [ 104 ] Since her injury Ms. Williams has had a reduced ability to carry out housekeeping tasks that she previously performed. The Court awards damages based on the incapacity of an injured person to complete housekeeping and household tasks that the injured person had previously completed: Rogers v. Grypma ,, 2001 ABQB 958 , 304 A.R. 201 ; Tat v. Ellis , 1999 ABCA 12 at paras. 27-31 , 228 A.R. 263 (Alta. C.A.) . She is entitled to claim the replacement cost of those services which she can no longer complete: Thibert v. Zaw Tun , 2006 ABQB 423 , 64 Alta. L.R. (4 th ), 41 , but also see Malinowski v. Schneider , at para. 370 . (

i) Past loss of household services [ 105 ] Ms. Appelt interviewed Ms. Williams concerning her ability to engage in household activities following her injury, and extrapolated loss of time for the various domestic activities that Ms. Williams had previously completed. The Plaintiffs used average housekeeping tasks commitments reported in the Statistics Canada General Social Survey for married women who do not have children living at home. I consider this an appropriate approach, particularly in light of Ms.

Williams’ report that she had taken on a disproportionate amount of household activities following her husband’s back injury. That supports the conclusion that the average survey values likely underestimate Ms. Williams’ commitments. [ 106 ] A separate item, household maintenance and repairs, was included in Ms. Appelt’s calculations, though that activity is not reported as a significant commitment by women surveyed. Ms. Williams reported she conducted almost all home maintenance and repairs, and Ms. Appelt therefore included in her calculations that category’s reported single mother average of 0.2 hours/day.

I think this is a valid approach. [ 107 ] In total, the Plaintiffs argue that Ms. Williams’ lost housekeeping activities were:

2.25 hours / day between August 5, 2004 to December 31, 2004; 1.52 hours / day between January 1, 2005 to October 5, 2005; 0.8 hours / day between October 6, 2005 and May 17, 2009; and 0.88 hours / day between May 18, 2009 and the date of trial. [ 108 ] The Defendants claim that Ms. Williams has exaggerated the effect of her injuries and that Mr. Hall’s estimate of reduced housekeeping assistance should be accepted. Again, in light of my conclusion that Ms. Williams is not malingering and has fibromyalgia, I put limited weight on the experts opinions of the Defendants and their derived calculations.

The Defendants also argue that statistical evidence of homekeeping activities is not particularly helpful, and cite Flis v. Chan , 2004 ABQB 853 , 136 A.C.W.S. (3d) 474 . In that case the plaintiff suffered a sequence of several injuries and that meant statistics which relate to uninjured but typical Canadian housekeepers were not a helpful basis on which to evaluate lost housekeeping activities of an already injured and impaired worker. [ 109 ] I also note that housekeeping statistics are commonly used to evaluate damages. Notably, in Russell v.

Turcott , 2009 ABQB 19 at paras. 371-372 , 64 C.C.L.T. (3d) 11 Rooke J. (as he then was), not only accepted statistical evidence of housekeeping activities, but used that evidence to rebut direct reports by the plaintiff of her domestic commitments. This case was cited by the Defendants as one of their authorities on assessment of loss of housekeeping. [ 110 ] In the result I accept Ms. Appelt’s estimates as reasonable amounts and proven on a balance of probabilities. [ 111 ] What remains is to value the cost of replacement services. Dr.

Jenkins, suggested a rate of $17.48 / hour, which extrapolates from a November 2005 IPSOS/Reid Alberta survey. Ms. Reichert suggests $14.27 (without GST), the average of 2009 Alberta Wage Survey rates for housekeepers, light duty cleaners, and janitors and caretakers. I prefer Ms. Reichert’s proposed rate as it is the more recent data and therefore is more likely to reflect the current market cost of these services.

That said, this value should be adjusted to a 2011 equivalent to account for inflation. [ 112 ] I also note that the Plaintiffs have suggested I apply a $17.25 replacement housekeeping cost rate that was identified by Justice Marshall in Mahe v. Boulianne , 2008 ABQB 680 , 3 Alta. L.R. (5th) 89 , varied on other grounds 2010 ABCA 32 , 474 A.R. 223 . That rate was agreed upon by the parties in that action (para. 96).

I do not think that it is appropriate to simply value the cost of a service using a rate extracted from a different judgment, particularly where the evidentiary foundation for that sum is not available. (ii) Future loss of household services [ 113 ] Ms. Appelt evidence is that the 0.88 hours / day of lost household services will continue until Ms. Williams is 80 years of age. As above, I value these lost services at $14.27 per hour, adjusted for inflation to a 2011 equivalent.

As explained in para. 72, a 3% discount rate should apply to these amounts. [ 114 ] The parties may return to me if they require assistance in calculating either the past or future loss of household services using these directions. (

e) Pecuniary - Future Care Outlays

[ 115 ] The Plaintiffs have claimed a number of future care costs for Ms.

Williams: 1. sit-stand stool: $103.95, every five years until age 65; 2. orthopaedic shoes: $216.30 - $500.00, every two years; 3. orthopaedic sandals: $195.00, annually; 4. orthotics: $350.00, every two years; 5. right shoe lift: $350.00, every two years; 6. cane: $29.11, every four years; 7. cane ice grips: $15.80, every four years; 8. exercise class: $1,092.00, annually until age 65; 9. swim pass: $693.00, annually until age 65; 10. hot tub: $17,000.00, one time expense; 11. counselling: $2,040.00, one time expense; 12. medication: $668.21, annually; 13. chiropractor: $468.00, annually; 14. massage: $3,760.00, annually; 15. far infrared sauna: $4,100.00, one time expense; 16. intramuscular stimulation (IMS): $1,020.00, annually; 17. laser treatment: $1,560.00, annually; and 18. ankle brace: $2000.00, every two years.

[ 116 ] The Defendants accept the sit-stand stool, orthopaedic shoes and cane grips are valid items, though Ms. Reichert valued these costs in a different manner. The ankle brace was suggested by the Defendant’s expert Mr. Hall and intended to assist Ms. Williams at work, with replacement every two years until retirement. [ 117 ] I therefore conclude these items are reasonable, with the sit-stand stool replaced every ten years as suggested by the Defendants. Orthopaedic shoes will be valued at the low end of the suggested range.

If orthopaedic shoes are reasonable then an equivalent summer pair of sandals is also appropriate, at the same replacement frequency. If cane tips are appropriate and require periodic replacement then the cane itself should also be periodically replaced. The Plaintiffs argue that if the ankle brace is appropriate then it should be available and replaced throughout Ms. Williams’ life expectancy and I agree. [ 118 ] Certain items in the Plaintiffs’ list are addressed by expert testimony. Dr. Sholter emphasized that exercise is helpful for persons who experience fibromyalgia. Dr.

Russell also indicated mobility is crucial. On that basis I agree that damages to cover exercise classes and swimming are appropriate. However, I accept the Defendants’ evidence that an annual swimming pass in Edmonton can be obtained for $333.00. Dr. Semeniuk has previously prescribed custom orthotics to assist with Ms. Williams’ movement and ankle support. Dr. Semeniuk also reports intramuscular stimulation has been performed by Dr. Seibel to treat scarring. [ 119 ] Dr. Jiang’s testimony is that Ms.

Williams leg length difference is probably a congenital condition and the Defendants argue that the proposed right shoe lift was not required because of the Defendants’ negligence. I think this is better characterized as a ‘brittle skull’ scenario, and that if Ms.

Williams has a physical peculiarity that means the ankle injury also creates a requirement for another kind of orthotic device, then the cost of that device is part of the Plaintiffs’ damages and I so find. [ 120 ] The Plaintiffs advance a claim for costs of medication, and my review of the prescriptions in question supports that these are to treat the direct effects of the ankle injury or its psychological consequences. However, I do not accept that the Plaintiffs have proven that the proposed counselling is related to her injuries. [ 121 ] Ms.

Williams acknowledges that she used massage therapy and chiropractic services prior to her injury. I have not received evidence that establishes to my satisfaction that her proposed post-injury use of these services is a consequence of her injury. Further, the expert testimony was that these techniques are not effective to treat fibromyalgia.

I reject these claims as not proven to a balance of probabilities. [ 122 ] The suggested hot tub and far infrared sauna are rejected, these were not based on expert testimony and I note that these kinds of high temperature environments are commonly available at public swimming facilities.

Similarly, evidence on the application and efficacy of laser treatment is not adequate to support this award. [ 123 ] I therefore order the following future care amounts be paid as damages: 1. sit-stand stool: $103.95, every ten years until age 65; 2. orthopaedic shoes: $216.30, every two years; 3. orthopaedic sandals: $195.00, every two years; 4. orthotics: $350.00, every two years; 5. right shoe lift: $350.00, every two years;

6. cane: $29.11, every four years; 7. cane ice grips: $15.80, every four years; 8. exercise class: $1,092.00, annually until age 65; 9. swim pass: $333.00, annually until age 65; 10. medication: $668.21, annually; 11. intramuscular stimulation (IMS): $1,020.00, annually; and 12. ankle brace: $2000.00, every two years. [ 124 ] I prefer Ms. Reichert’s approach in calculating these items which takes into account the income tax medical expense deduction (see Ms. Reichert’s report at para. 5.11 and Exhibit 30), using the 3% discount rate indicated above (paras. 70-72). (

f) Pecuniary Special Damages/Out-of-Pocket Expenses Incurred by Ms. Williams [ 125 ] There is broad disagreement between the parties on what special damages are appropriate: Plaintiffs - $48,816.00; Defendants - $7,500.00 to 8,000.00. At trial the Defendants identified a number of categories of damages that it argues are inappropriate: 1. losses associated with in-home salon setup and sale of the salon equipment; 2. costs to move from the St.

Albert home to a condominium; 3. milage claimed to travel to and from certain treatment and therapy locations; 4. inappropriate re-education expenditures; 5. unexplained long distance charges on the business telephone line; and 6. cost of massage and chiropractic services. [ 126 ] The Plaintiffs also seek $11,213.00 for ‘moving costs’ to return Mr. and Ms. Williams from a condominium to a home. Though this is a ‘future’ cost I have for convenience grouped it with the special damages claims. [ 127 ] Some of the disputed items involve conclusions from my previous analyses of various damages.

Since I have concluded that

Ms. Williams was and is unable to continue her hairstyling business the difference between the startup cost of the salon and its liquidation proceeds is a valid special damage claim. Similarly, any storage costs associated with the salon equipment are a proper special damages cost. [ 128 ] I have concluded that Ms. Williams’ re-education and re-training efforts were a valid attempt to mitigate in the face of her evolving ankle injury and fibromyalgia. Thus, all expenses relating to the school courses should be included in Ms.

Williams special damages. [ 129 ] I am not satisfied beyond a balance of probabilities that relocation from the St. Albert house to the condominium can be properly considered a consequence of the Defendants’ negligence. I received evidence that Mr. Williams’ disability has also affected household income and preferred household arrangement; relocation to a smaller home may have been selected on that basis. I reject on the same basis the claim for the future cost of moving the couple to a house. [ 130 ] The disputed telephone charges relate to a business line that Ms. Williams had for her home salon business.

I have concluded that it was reasonable for some time that Ms. Williams could potentially plan to return to that business and during that period it is reasonable that she would retain her old business telephone number as a point of contact. However, I cannot see any long-distance telephone calls that would be relevant to a mothballed hairstyling salon, and on that basis I reject special damages claims for long- distance telephone calls from the business number that occurred later than three months post-injury.

The three-month cushion is to address reasonable communications in ‘putting the business on hold’, such as to make arrangements with suppliers and other professional contacts. [ 131 ] I disallow expenses relating to massage treatment as I do not have evidence to separate what part of those treatments can be assigned to Ms. Williams ankle injury and I have received expert testimony that massage is ineffective in treating fibromyalgia. I have received evidence that the chiropractor, Dr. Chipperfield, did address Ms.

Williams ankle injury and on that basis I will allow costs associated with chiropractic treatment between the date of the Accident and April 18, 2006, when Ms. Williams was diagnosed with fibromyalgia. In light of my conclusion that chiropractic treatment is ineffective in dealing with fibromyalgia, I conclude that post-April 18, 2006 chiropractic treatments must have a separate cause unrelated to the negligence of the Defendants. [ 132 ] The Defendants have argued that certain mileage costs should not be considered out-of-pocket expenses.

I hope that my breakdown of valid special damages claims will allow the parties to determine which travel claims should be included in Ms. Williams special damages award. The parties may return to me if these directions require further clarification. IX.

Summary of Claim and Award [ 133 ] In

summary, the claim by Ms. Williams for damages, the position of the Defendants and my award are set out as follows: Heads of Damages Plaintiff’s Position Defendants’ Position Award Non-pecuniary - General Damages $150,000.00 to $175,000.00 * $50,000.00 to $60,000.00 $145,000.00 ** Pretrial Loss of Income $73,028.00 $0.00 $70,885.00 (including pre-trial interest)

Future Loss of Earnings $178,833.00 to $420,752.00 $0.00 - to $17,000.00 (one year loss) $306,061.00 , subject to CPP and tax gross-up adjustment (see paras. 70-72, 95) and future disability incidence frequency (see para. 76). Pretrial Loss of Household Services Capacity $32,885.00 $3,975.00 to $10,000.00 See paras. 107-111. ** Future Loss of Household Services Capacity $136,236.00 $0.00 See para. 113. Future Care Outlays $257,987.00 to $261,727.00 $24,085.16 See paras. 123-124. Special Damages/Out- of-Pocket Expenses Incurred by Ms.

Williams $48,816.00 $7,500.00 to $8,000.00 See paras. 127-132. ** TOTAL $874,938.00 to $1,123,597 $85,560.16 to $119,085.16 Heads of Damages Plaintiff’s Position Defendants’ Position Award * The general damages claim in the Amended Statement of Claim was for $150,000.00 and no application to amend upwards was made. ** Plus prejudgment interest at the prescribed rate from the date of injury or expenditure, as the case may be. X Costs [ 134 ] If the parties cannot agree on costs, they may be spoken to.

Heard on the 12 th to the 26 th days of April, 2010 Dated at the City of Edmonton, Alberta this 30 th day of June, 2011

D.R.G. Thomas J.C.Q.B.A. Appearances: Mr. Patrick J. Feehan and Mr. Malkit S. Atwal (Duncan and Craig LLP) for the Plaintiffs Ms. Sara E. Hart and Mr. Kelly Nychka (Bryan & Company LLP) for the Defendants _______________________________________________________ Corrigendum of The Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ Page 29 was changed by adding ** to the table and the prejudgment interest information below the table.