Bzdziuch v Loblaws Companies Limited, 2019 ABQB 984

Court of Queen’s Bench of Alberta Citation: Bzdziuch v Loblaws Companies Limited, 2019 ABQB 984 Date: 20191219 Docket: 1201 14886 Registry: Calgary Between: Justyna Bzdziuch and Her Majesty the Queen in Right of Alberta Plaintiff - and - Loblaws Companies Limited, Loblaws Inc., Loblaws Properties West Inc., Westfair Food Ltd. Operating as the Real Canadian Superstore and the Real Canadian Superstore Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C. Scott Brooker _______________________________________________________ I.

Introduction [ 1 ] This is an action by Mrs. Justyna Bzdzuich (hereinafter referred to as the “ plaintiff ”) for damages she sustained in a fall on the premises of a grocery store under the name the Real Canadian Superstore, located at 222-58 th Avenue S.E. in Calgary, Alberta (hereinafter referred to as “ the premises ” or “ the store ”).

[ 2 ] Her Majesty the Queen in Right of Alberta is the co-plaintiff and a party pursuant to

section 51 of the Crown’s Right of Recovery Act , SA 2009, c-35 . [ 3 ] One, some or all the defendants owned and operated the store at the material times. Loblaws Properties West Inc. was the registered owner of the premises. The other defendants are Loblaws Inc., Loblaws Companies Limited, and Westfair Food Ltd. operating as the Real Canadian Superstore (hereinafter referred collectively as the “ defendants ”). [ 4 ] On the afternoon of December 23, 2010, the plaintiff was shopping for groceries at the store when she tripped over a pallet and fell to the floor.

As a result of the fall, she suffered injuries for which she claims damages. [ 5 ] The defendants deny liability for the accident. They also deny that the plaintiff suffered the damages and injuries she claims were caused by this fall. In the alternative, they plead contributory negligence. [ 6 ] During the trial, I heard evidence from five witnesses for the plaintiff: the plaintiff, her son Adam Bzdziuch, her family physician Dr. Jayashri Nandi, her orthopedic specialist Dr. Edward Rendall, and Dr.

James Stewart to whom she was referred for a second orthopedic opinion. [ 7 ] I heard evidence from two witnesses for the defendants: Tara Dunn who was the assistant store manager at the time, and Dr. James McDougall, an expert in occupational health and physical disability. [ 8 ] I also received an Agreed Statement of Facts and I was presented evidence by way of an Agreed Exhibit Book. Notably, there were five photographs tendered as Exhibit 1, under Tab C.

The store personnel took these photographs shortly after the incident and they accurately represent the physical scene at the time of the incident, but for the broken eggs and cone, which I discuss below (hereinafter referred to as the “ photographs ”). II. Issues [ 9 ] There are two issues to be determined: (1) liability; and (2) damages. III. Discussion A. Liability [ 10 ] I must first determine whether the defendants are liable for the damages and injuries claimed by the plaintiff. i.

The Plaintiff’s Position [ 11 ] The plaintiff submits that the question to be asked in determining liability is whether the defendants could foresee a risk to a visitor who was exercising ordinary diligence. The plaintiff argues that if the answer to that question is “yes” the defendant is negligent even if the plaintiff failed to exercise ordinary diligence. The plaintiff relies on McNulty v Edmonton , 2011 ABQB 297 , citing Lorenz v Ed-mon Developments Ltd, 1991 ABCA 82 [ Lorenz ] for this proposition.

The plaintiff also refers to Swagar v Loblaws Inc , 2014 ABQB 58 where the court there said at para 66: The OLA [ Occupiers’ Liability Act ] integrates occupiers’ liability with the law of negligence. It was common ground that the occupier’s duty of care is not absolute and that the OLA does not make the occupier an insurer. However, the OLA places on the occupier the evidentiary burden of demonstrating that it applied that degree of reasonable care, required by the foreseeable risk, sufficient to keep visitors reasonable safe: Anderson v. Canada Safeway Ltd ., 2004 ABCA 239 , 357 AR 6 at para 4 .

It is a question of fact in the particular case as to whether an occupier was negligent of failed in its affirmative duty to take reasonable steps to protect those who enter their premises reasonable safe from foreseeable harm. [ 12 ] The plaintiff submits that based on these cases and the read-ins at trial from the defendants’ questioning—where the defendants acknowledged that an empty or “shopped down” pallet poses a risk and the situation should have been corrected—the Court should find the defendants liable. [ 13 ] The crux of the plaintiff’s position on liability was concisely set out in its written submissions: The Defendants policy requires that pallets be organized or arranged in a manner to prevent risk to patrons of the Defendant.

It is submitted that the Defendants allowed for an empty or significantly shopped down pallet to be protruding into the pedestrian walking area within the walk-in cooler.

Additionally, the defendants did [ sic ] have any delineation, indicia or warning signs to draw attention of the walkway or hazard created by the pallet. ...Once the Plaintiff obtained her carton of eggs and other products from within the walk-in cooler, she followed the busy crowd to exit the walk-in cooler wherein she tripped over the empty edge of the pallet that was protruding into the pedestrian walking area .... [ 14 ] For the following reasons, I do not accept the plaintiff’s position on liability. ii. Analysis

[ 15 ] The parties agree that the Occupiers’ Liability Act, RSA 2000, c O-4 [ Act ] applies in this case. It is clear, and I find, that the defendants were occupiers of the premises and the plaintiff was a visitor at all material times, as those terms are defined in the Act . Consequently, the defendants owed the plaintiff a duty of care under

section 5, which states: An occupier of premises owes a duty to every visitor on the occupier’s premises to take such care as in all the circumstances of the case is reasonable to see that that visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there or is permitted by law to be there. [ 16 ] Pursuant to

section 6 of the Act , that duty of care applies in relation to the condition of the premises, the activities on the premises, and the conduct of third parties on the premises. [ 17 ] In interpreting

section 5 of the Act , the Alberta Court of Appeal in Wood v Ward , 2009 ABCA 325 [ Wood ] clarified the following passage from Lorenz , which as noted above, the plaintiff relies on to claim that the defendants are liable: The correct question, then, in deciding whether or not an occupier has been negligent is to ask whether it could reasonably foresee a risk to visitors who exercise ordinary diligence. If the answer is yes, the occupier is negligent even if the plaintiff failed to exercise ordinary diligence.

The learned trial judge in our view did not apply that test and therefore was in error. [ 18 ] The Court in Wood held that although this passage could be interpreted to mean that liability automatically follows reasonable foreseeability of risk, as the plaintiffs have suggested, it must be read in context and, when read in context, it merely says that negligence by a plaintiff and the defendant can coexist: at para 8. [ 19 ] In clarifying the passage from Lorenz , the Court provided the following guidance at paras 6-7: ...If a risk of injury to a visitor is reasonably foreseeable, the occupier will owe a duty of care to prevent visitors from being injured.

Under s.5 the occupier must take reasonable care, which is the ordinary common law standard in tort, meaning that the occupier must keep the premises reasonably safe. It does not follow that the occupier is automatically liable for any injury suffered as a result of a foreseeable risk. Foreseeability of the risk creates a duty to the visitor, but it is still necessary to show negligence on the part of the occupier to impose liability. The Act does not intend to create no fault liability.

Further, the fact that the risk is foreseeable by the occupier, or that the occupier is negligent in failing to protect the visitor from the risk, does not mean that the visitor has no duty to have regard to his own safety. A duty or negligence by the occupier does not foreclose contributory negligence on the part of the visitor: Preston at p.536; Lorenz v. Ed-Mon Developments Ltd . [citations omitted] at p.194. It follows that the duty of the occupier is not only to protect the reasonably diligent visitor, but also to be aware that some visitors might themselves be careless, that is, contributorily negligent.

The occupier’s duty ends only when either the risk on the premises or the conduct of the visitor becomes reasonably unforeseeable. [ 20 ] In Wood , the plaintiff was helping the defendant apply roofing material on the defendant’s flat roof. No particular safety measures were taken. The plaintiff backed up without looking and fell off the roof suffering serious injuries. The plaintiff’s claim was dismissed and the Court stated at para 13: The record does not, however, disclose any negligent act on the part of the respondents.

While there are obvious risks involved in working on a roof, the law does not require the occupier to take every conceivable precaution, or run the risk of being found negligent.... A reasonable owner of the roof would not have found it necessary or appropriate in the circumstances to install railings, or warning signs, or to make use of safety harnesses or similar devices. Shortly put, the respondents were not negligent in their approach to the foreseeable risk.

The appellant on the other hand, was clearly negligent in absentmindedly stepping off the edge of the roof. [ 21 ] Based on the Court’s guidance in Wood , the correct questions to ask in determining liability are whether it was foreseeable to a reasonable person that visitors exercising ordinary diligence might trip over the pallet and fall, and if so, whether the occupier took reasonable care to prevent visitors from being injured. [ 22 ] In answering these questions, I conclude that the defendants are not liable for the plaintiff’s injuries.

The plaintiff’s arguments that the defendants allowed for an empty or significantly shopped down pallet to be protruding into the pedestrian walking area, that the defendants did not draw attention to the pallet, and that the plaintiff was following a busy crowd when she tripped on the edge of the pallet are unsupported by the evidence heard at trial. [ 23 ] The plaintiff testified that the store was “kind of busy”. She wanted to get some eggs, ham and sausage and so went into the walk-in cooler. There is one entrance to that room which, according to other evidence at trial, is approximately eight feet wide.

She left her shopping buggy outside the walk-in cooler and went inside to pick up her items. She testified that when she was in the cooler, there were about four people there. She picked up some sausage, ham and lastly a carton of eggs from the back wall. She then walked towards the exit. In doing so she noticed some water on the floor to her right and therefore she went to the left. She tripped over a wooden pallet and fell face forward on the floor. She testified several times that she did not see the pallet before she fell.

She did see it after she fell. [ 24 ] The suggestion that the plaintiff was following a “busy crowd to exit the walk-in cooler” is belied by the facts. According to the plaintiff’s own evidence, there were only about four people in the walk-in cooler at the time – certainly not a “busy crowd”. Further, the photographs of the walk-in cooler indicate that it would not be crowded with four or five people in it. [ 25 ] Having regard to the photographs, I do not agree that the pallet is “protruding into the pedestrian walking area”. In fact, the pallet defines the walking area. It butts up to the glass wall.

The blue curtain, which according to the evidence is closed at night to keep the room cool, is tied or clipped back. It appears to form a part of the entrance/exit opening. [ 26 ] As the photographs show, the pallet, while clearly shopped down by about half, is not empty. The plaintiff suggested in her evidence that there were not as many boxes on the pallet when she fell, as shown in the picture. Later in her testimony, she suggested that there were in fact no boxes on the pallet when she fell. I do not accept her evidence on that point. There is no suggestion that the store re-

loaded the pallet right after she fell. Ms. Dunn, the assistant store manager, testified that these pictures were taken very shortly after thefall and she says they show what the scene looked like after the accident. I find Ms. Dunn to be a credible and reliable witness and I amsatisfied the photographs depict the scene at the time of the incident accurately, but for the cone and broken eggs on the floor. [27] Further, as I noted, the pallet was shopped down by about half, revealing the floor of the pallet, which is bright yellow.

Asboxes are removed from the pallet, more of the bright yellow floor of the pallet is exposed and visible. The base of the pallet is bright redin colour. The floor of the walk-in cooler is a dull grey concrete. The bright red and yellow colouring of the pallet stands out in starkcontrast to the grey floor. It is well lit.

I cannot reasonably conceive of any markings, delineations or signs that would be more effectivein drawing a customer’s attention to this pallet than the extensive amount of bright red and yellow paint that is evident on the pallet itself. [28] The “Display Guidelines” of the defendants found in Exhibit 1, Tab I discuss how product is to be displayed on shelves andpallets. In it there is a reference to the five-foot rule at I.6 which says: “Ensure there is a clear 5 feet around all displays to allow forcustomer traffic.” Also, on that page: “A minimum of 5-foot passage rule around all pallet drops...”.

While there is a comment on pageI.7 that “Pallet product should be kept at a consistent height” that appears to refer specifically to the displays of “Club Deals” in fourpallet blocks in the “action alley” and is for the purpose of marketing the product. It is clear from the photographs and the evidence thatthere was more than 5 feet of clearance around this pallet on its three exposed sides.

Accordingly, I do not believe that the defendantsbreached their “Display Guidelines”. [29] The plaintiff relies in particular on certain read-ins from the Questioning of Robert Waplak, the officer of the defendants, toargue that the pallet was a tripping hazard and the defendants recognized it as such, yet did nothing about it. The plaintiff points to theread-in from page 72, lines 18-26, where Mr. Waplak agrees that it would have been incorrect to leave a pallet protruding in a walkwayunattended and corrected if seen. However, although he agreed it would have been incorrect, that is not the situation here.

Similarly, withthe read-ins from pages 94 and 95, Mr. Waplak admitted that the defendants did not, as a practice, put pallets or corners of pallets outinto a walkway because it is unsafe as people could trip over it. As well, he agreed that customers would not expect tripping hazards inthe walkways of his stores. However, as I have already noted, that is not the situation here as the pallet was not protruding into thewalkway. [30] Lastly, the plaintiff complains that video of the event was not produced even though she testified she had been told that therewere surveillance cameras at the time.

I am satisfied from the evidence at trial that although the store was in the process of setting upsurveillance cameras at various points in the store at or around the time of the accident, they were not yet operative at the relevant site. Ifind that the film of the accident never existed and therefore, the defendants did not withhold or destroy film of the accident. iii.

Conclusion on Liability [31] Even conceding for the purposes of this analysis that there was a foreseeable risk that a shopper might not notice a pallet andtrip on it, I find that the defendants had taken reasonable steps to guard against that risk. The pallet was not placed in the middle of anaisle, it was placed against the wall. It did not protrude into the walkway into and out of the walk-in cooler. The area where the palletwas located was well lit. The pallet was painted in two contrasting bright colours, red and yellow. The floor upon which the pallet satwas a dull grey.

The contrast is significant. [32] As noted earlier, the occupier is not an insurer of the visitor’s safety. It is difficult to conceive of what more the defendantscould reasonably have done to protect the plaintiff from her own negligent inattention to where she was walking. It appears from herevidence that she never saw the pallet until after she fell. Yet she had to have walked into the cooler and past the brightly coloured palletto get her eggs and other items in the cooler before turning around and proceeding to exit the cooler and falling.

If she did not notice itthen, it is doubtful she would have noticed tape, cones or signs. Further, it is not reasonable, in my opinion, to expect or require theoccupier to keep the pallet full of product at all times. [33] In short, I find that the defendants met the duty of care imposed on them in these circumstances and have no liability for theplaintiff’s fall and injuries. Nevertheless, I will proceed to assess damages on a provisional basis. B. Damages [34] The plaintiff claimed both general damages and special damages.

Further, Alberta Health Services (“AHS”) has advanced asubrogated claim for medical services provided to the plaintiff. I address these in turn, below. i.

General Damages [35] The plaintiff claims general damages for pain, suffering and disability and the cost of future care in the amount of $200,000.In support of her claim of general damages, the plaintiff has referred to several cases: Legault v Brock Shopping Centre Ltd, 2010BCSC 687; Robinson v Willimas Estate, 2005 ABQB 659 [Robinson]; Swagar v Loblaws Inc, 2014 ABQB 58; Mathroo v Edge-Partington, 2015 BCSC 122 [Mathroo]; and Roberts v Safadi, 2018 ABQB 165. [36] The defendants argue that general damages should be assessed at $40,000.

In support of this position, the defendants citeseveral cases: Garcia v Charters, 2006 BCSC 875; Foreman v Moritz et al, 2001 BCSC 95; Olivier v Pat and Mario’s Restaurant, 2013ONSC 382; and Gogol v FW Woolworth Co Limited, (BCSC). None of these cases are Alberta cases.

In consideringcases assessing damages for personal injuries, I agree with and adopt the comment of Veit J in Robinson, where she states: “Albertadecisions are more persuasive in fixing a level of award than decisions from other jurisdictions”: at para 2. [37] None of the cases cited by both parties are directly similar to the plaintiff and her injuries. The cases can be distinguishedbased on the nature of the injuries, the age and characteristics of the plaintiffs, the nature and type of the treatments received, theplaintiffs’ general life circumstances, and the effect of the injuries on daily living.

[ 38 ] At the time of the incident, the plaintiff was a 77-year-old retiree. As such, I find merit in and adopt the comment in Mathroo at para 87 , citing Fatta v Heinonen , 2010 BCSC 385 : The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality. When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life.

Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age.... [ 39 ] I am satisfied that the plaintiff was an active and independent woman prior to this accident. While she seems to have had some pre-existing health problems prior to this accident, I find that they did not significantly impair her daily functioning and independence. She was able to care for herself, maintain her own home including the gardening, and manage and physically maintain her rental properties.

In the fall, she suffered a serious injury to her left shoulder, which is her dominant side. As a result, defence expert Dr. McDougall noted that, “the left arm is, generally speaking, non-functional”. [ 40 ] After she fell, the plaintiff said that other shoppers and store employees helped her up. A store employee asked for her name and phone number and then she left with her friend who drove her to the doctor’s office. The doctor sent her to the Foothills General Hospital (“ FGH ”) and her friend drove her there. She was taken from the FGH to the Rockyview Hospital (“ RVH ”).

There she was diagnosed with a cracked bone in her left shoulder as well as bruising to her ribs and breast. Her bruising went away over a period of about 10 weeks. She was also diagnosed with diabetes and high blood pressure while in the RVH. She said her shoulder was treated by placing her left arm in a sling. She is left handed. She testified that in hospital she received Oxycontin for her pain.

She said she was hospitalized in the RVH for about 3 weeks and moved to a Carewest facility which appears to be attached or adjacent to the RVH due to the fact that she lived on her own and they had to make sure she could manage. She was finally discharged on January 25, 2011. She returned home and her son stayed there with her for a couple of weeks and later her daughter came from Edmonton to assist her. Her son arranged for her to have home care come in twice a day. Her grandson also helped out. [ 41 ] She saw Dr. Stewart about her shoulder.

There was some discussion about surgery but he did not recommend it because she was too old or too weak. He told her to continue taking Oxycontin for her pain. She said she went for a pre-operative assessment but did not pass due to her high blood pressure or being too weak. [ 42 ] The plaintiff also developed a prolapse which was diagnosed by a gynecologist. She also has a pre-accident diagnosis of throat cancer for which she underwent treatment a number of years prior to this accident. [ 43 ] The plaintiff testified that since her fall, she has been unable to use her left arm and that it is worse now.

She claims she has had no improvement in her left arm since she left hospital – that it is always numb and that the pain in her left arm has increased. Her high blood pressure and diabetes are controlled with medications and those conditions do not affect her life or daily living. She has had no subsequent accidents. She hires people to clean her house, do her laundry and gardening. She cannot dress herself and thus does not get dressed up more than once a week. She can shower but needs help taking a bath. She cannot do heavy cooking.

She says she has problem sleeping because she wakes up every two hours presumably due to due to pain in her left shoulder/arm. [ 44 ] The plaintiff described having had back pain for which she saw Dr. Nandi. She was told she had a tailbone infection. She was given some cortisone injections and she said the back pain went away and never came back. [ 45 ] The plaintiff described how she worked at two jobs after coming to Canada in 1966-67. She worked in the housekeeping department at the Calgary General Hospital and also at the Calgary Convention Centre.

She saved her money and invested in real estate and managed her rental properties. She retired in about 1988 from housekeeping at the Calgary Convention Centre at retired from formal employment at an age somewhere between 56 and 58. Since retirement she said she had been managing her properties, dancing, gardening, travelling, cooking and participating in her church activities. She testified that she had no problems with her health after retirement but since this accident she has been unable to do these activities.

She testified that she manages her arm pain with Oxycontin which she takes 2 times a day at a dose of 20mg. [ 46 ] The plaintiff denied having been diagnosed with arthritis, or osteoarthritis before the accident. She admitted she had carpel tunnel syndrome before the accident. She said she had back pain in 2012 due to her using an exercise bike. [ 47 ] She claimed that over a period of about four years she paid approximately $32,000 to her daughter and grandson for assistance they gave her after the accident.

Various cheques were put to her in cross-examination but she could not say specifically what the payments were for. [ 48 ] She testified that she has hired various persons to do work around her house and yard. Some of the people she hired are her family members.

She introduced Exhibit 2 which is a spread sheet and receipts for expenses she said she incurred over and above expenses paid for through insurance. [ 49 ] Although I am satisfied that the plaintiff was attempting to be accurate and truthful in her evidence, I believe she was confused or mistaken in her recollection at times – particularly regarding her non-accident related health issues. I therefore prefer the medical evidence from the doctors and their written records when it conflicts with the plaintiff’s recollections and evidence on the issue. [ 50 ] Dr.

Edward Rendall, an expert in orthopedic surgery testified that he had seen the plaintiff about 4 weeks post-accident as an out-patient in his cast clinic. He confirmed that she had a proximal humerus fracture. He also saw her at 10 weeks and 18 weeks post- accident. He identified the medical reports in Exhibit 1, Tab F, documents F3.1, F3.2 and F3.3 as reports he had prepared and that they accurately set out his findings and opinions at the time. He recommended she seek a second opinion. [ 51 ] Dr. James Stewart is an expert in orthopedic surgery with a sub-specialty in knees and shoulder.

The plaintiff was referred to him by Dr. Rendall for a second opinion. He saw her three times, February 22, 2012, February 11, 2014 and February 4, 2016. His medical reports are found in Exhibit 1, Tab F, documents F2.1, F2.2, and F2.3. At his first examination of the plaintiff, he diagnosed her with a “chronic non-union left proximal humerus fracture with rotator cuff deficiency”. He recommended surgery. However, it was

major surgery and she declined. He said she did not seem that interested. He noted that the surgery would alleviate the pain but not the functioning and that it is difficult surgery and not easy to get a good result. Had she been interested in the surgery, he would have sent her for surgical assessment. Since that did not happen and the window of opportunity for the surgery passed. He said that there is nothing now that can be done surgically that would significantly improve her pain or the functioning of her shoulder.

When he last saw her, she told him she was taking Oxycontin for the shoulder pain and he recommended that she continue taking that. [ 52 ] Dr. Jayashri Nandi has been the plaintiff’s family doctor since 2010. She saw her twice before the accident, both dates in November 2010. On those occasions the plaintiff complained of high blood pressure and a problem related to bone density. She has chronic back pain which the doctor said is common for her age. She has also been treated for a prolapse for which surgery was once booked but cancelled due to a problem with chest pain. Dr.

Nandi has never fully examined her left shoulder. [ 53 ] Dr. Nandi’s file with respect to the plaintiff is found at Exhibit 1, Tab F, documents F1.1 to F1.18. The documents F1.8 through F1.15 are Dr. Nandi’s office treatment notes relating to the plaintiff. Of note is the absence of reference to shoulder pain or any other issue relating to her shoulder except for a note that she had been admitted to hospital for a broken left shoulder, due to a fall.

Moreover, it appears that an inpatient consultation report, F1.1-F1.3, dated June 19, 2012 was prepared outlining a host of problems, particularly relating to chronic back pain, but does not mention the shoulder. Indeed, inexplicably under the heading “Physical Examination”, it states “[u]pper extremity, motor and sensory exam was grossly normal.” [ 54 ] Dr. David McDougal performed a medical examination on behalf of the defendants. His report is found at Exhibit 1, Tab G.

He found that the injuries suffered by the plaintiff in the accident consisted of some bruising which has healed and a fractured left humerus at the surgical neck which has gone on to non-union. He notes that this is a significant injury with permanent and significant consequences. He goes on to opine at page G7 of his report: The left arm remains significantly impaired and is minimally useful, if at all. It is symptomatic and consistent with the known pathology and should be viewed at Maximum Medical Improvement.

The impairment is permanent and this will lead to permanent restrictions with permanent disabilities. [ 55 ] I find all four of these doctors to be credible and reliable witnesses. [ 56 ] In the final analysis, I find that as a result of the fall, the plaintiff suffered a fracture of the left proximal humerus which has gone on to non-union, together with some bruising. The bruising cleared up over about 10 weeks post-fall but left shoulder has not healed and has resulted in a permanent impairment, mobility and disability of that shoulder.

Besides the significant restriction in the mobility of this shoulder, it has and continues to cause pain in the shoulder area. I also note that the plaintiff is left-handed. [ 57 ] I also find that it was not unreasonable for the plaintiff to have declined to have the surgical reconstruction of her shoulder as discussed by Dr. Stewart. It was major surgery and given her age at the time as well as the risks and chances of success of such surgery, her decision to decline the surgery was understandable and reasonable.

Moreover, it is a matter of conjecture as to whether she would have passed the pre-operative testing having regard to her medical history and subsequent failure to pass pre-operative testing for another unrelated surgery. [ 58 ] Taking all the plaintiff’s circumstances into account, I would assess her general damages for pain, suffering, disability and future cost of care at $75,000. ii.

Special Damages [ 59 ] The plaintiff claimed special damages in the total amount of $41,702.36 made up as follows: • Drug prescription expenses: $986.76 • Taxi expenses: $73.00 • Yard work/snow removal: $11,320 • Gas expenses: $3,140.60 • Housekeeping/assistance: $25,050 [ 60 ] The plaintiff entered a sheaf of invoices, receipts and other papers as Exhibit 2 in support of her claim for special damages. The plaintiff was examined and cross-examined on these expenses. The defendants strongly contest these expenses. [ 61 ] The evidence to support these expenses is problematic.

First, I do not find the evidence in support of these special expenses particularly persuasive. For example, much of the evidence elicited from the plaintiff through her counsel, was done through leading questions. [ 62 ] Second, the plaintiff’s daughter, who lived in Edmonton throughout this time and who, according to the plaintiff provided services for housekeeping and assistance in the plaintiff’s home and issued the invoices totalling $25,050, was not called to testify as to what services she performed for her mother.

For these services, she purportedly charged $695 per month for the years 2011, 2012 and 2013. The three invoices she issued are numbered sequentially 102251, 102252, and 102253 which suggests these invoices were likely issued at the same time and perhaps solely for the purposes of the litigation. Significantly, there were no cancelled cheques put in evidence to support the assertion that the plaintiff had paid her daughter for her services. [ 63 ] Third, the plaintiff’s grandson, was not called to testify with respect to the receipts issued by him totalling $7,320 and cheques issued to him totalling $4,000.

These were apparently with respect to yard work, planting, snow removal and Christmas decoration

installations. There is no information as to the amount of time expended for this work or whether the cheque’s issued in payment relate to work covered in the “receipts” he issued. [ 64 ] Fourth, there is a dearth of evidence to explain or support the gas receipt expenses claimed of $3,140.60. All I have is the gas receipts and a vague reference in the evidence that it was for trips to the hospital and medical appointments. [ 65 ] Fifth, the bundle of prescription receipts is alleged to be for drugs required because of this accident.

Yet the evidence indicates that the plaintiff was treated for various non-related conditions after this accident including back pain and infection, high blood pressure, a gynecological prolapse and carpel tunnel syndrome. A review of the prescription receipts in Exhibit 2 reveals that many of the drugs claimed are for these non-accident related conditions. For example, the drug Atacand is used for the treatment of high blood pressure. Novo-Domperidone is used for the treatment of stomach upset, nausea and vomiting. Apo-Candesartan is for blood pressure.

Novo-Oxybutynin is for the treatment of muscle spasm of the bladder and urinary tract. Diclo Plo Gel is used to treat actinic keratosis, a skin condition. Gabapentin is a drug usually used for the treatment of diabetic neuropathy. Ratio Baclofen is used for treating muscle spasms. Sanis Amlodipine is prescribed for the treatment of high blood pressure. Santis Pantoprazole is prescribed for gastroesophageal reflux disease and stomach ulcers. Senokot is a laxative used to treat constipation. PMS-Hydrochlorothiazide reduces water retention. It is often used to lower blood pressure.

Olmetec is used for hypertension as is Mar-Atenolol. [ 66 ] It is clear that the majority of the prescriptions claimed relate to health issues not related to the plaintiff’s fall. Those that might relate to pain from the shoulder injury are: Voltaren Emulgel, Celebrex, Oxycodone or Oxyneo, Oxycontin, Acetaminophen, Oxycocet, Atasol and Ms-Contin. These prescriptions are general pain medications, which account for $470.53 of the amount claimed. I am satisfied from the plaintiff’s medical history that she had pain in areas other than her shoulder, for which she would have used some of this pain medication.

I therefore reduce it by 25%, resulting in a net claim of $352.90. [ 67 ] Despite the foregoing comments pointing out the problems with the evidence on special damages, I am satisfied that as a result of the injury to the plaintiff’s shoulder, she would have required some assistance with housework as well as yard work and snow removal. I do not think it unreasonable to employ a family member to do some of that work.

The problem is putting a value on it given the state of the evidence. [ 68 ] Having regard to the foregoing, I assess the special damages attributable to this fall as follows: • Drug prescription expenses: $351 • Taxi expenses: $73 • Yardwork/snow removal: $4,000 • Gas expenses: $0 • Housekeeping assistance: $3,000 TOTAL : $7,424 iii. Subrogated Claim [ 69 ] AHS advanced a subrogated claim for $43,938.65 for medical services provided to the plaintiff. The particulars are set out in Exhibit 1, Tab H.

Of that claim, $31,775 is with respect to the plaintiff’s hospitalization at the RVH from December 23, 2010 until January 12, 2011 and $3,656.25 is for her hospitalization at Carewest from January 12, 2011 until January 25, 2011.

The balance of the claim consists primarily of out-patient services until April 11, 2012. [ 70 ] The Agreed Statement of Facts found in Exhibit 1 at Tab A at para. 18 admits that “The particulars of Her Majesty’s claim are set out in Exhibit H [Tab H] of the Agreed Book of Exhibits [Exhibit 1]. [ 71 ] The defendants submit that the subrogated AHS claim should be reduced to $20,000 to account for “the plaintiff’s pre- existing medical conditions, subsequent health issues and advanced age...”.

There is some merit to this position given that the medical evidence indicates that the plaintiff was being treated for some non-accident related medical issues such as a prolapse, back issues, high blood pressure and heart concerns. It is not possible on the bare particulars of the subrogated claim to ascertain what the services provided were for. However, I am satisfied that the hospitalizations referred to above were directly referable to the fall. They total $35,431.25.

Of the remaining balance of $7857.40 [$43,938.65 - $35,431.25 = $7857.40], I attribute fifty percent to treatments related to injuries received in the accident and fifty percent to non-accident health matters. [ 72 ] In the result, I assess the AHS subrogated claim at $39,360 plus prejudgment interest thereon. IV. Conclusion [ 73 ] For the reasons set out above the defendants are not liable for this accident. Therefore, the plaintiff’s claim must be dismissed. [ 74 ] Damages are assessed provisionally as follows: • General damages: $75,000 • Special damages: $7,424

• Subrogated Claim: $39,360 [ 75 ] If counsel cannot agree, they may speak to costs within 30 days of the issuance of this decision. Heard on the 15 th day of March, 2018. Dated at the City of Calgary, Alberta this 19 th day of December, 2019. C. Scott Brooker J.C.Q.B.A. Appearances: Brian N. Clark and Muneeb Sadiq for the Plaintiff Nabeel Peermohamed for the Defendants