Powell v., 2018 BCPC 19

Citation: Powell v. 585562 B.C. Ltd. Date: 20180206 2018 BCPC 19 File No: ABB-P-C-22490 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA SMALL CLAIMS BETWEEN: YVONNE POWELL CLAIMANT AND: 585562 B.C. LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Claimant: A. G. Cline Counsel for the Defendant: A. C. Fraser Place of Hearing: Abbotsford , B.C.

Dates of Hearing: December 18-20, 2017 Date of Judgment: February 6, 2018 No. Table of Contents Paragraphs Introduction [ 1 ] to [6]

Summary of Evidence [7] to [42] Position of the Parties 1 The Claimant [43] to [48] 2 The Defendant [49] to [54] Applicable Law 1 Liability [55] to [66] 2 Contributory Negligence [67] to [70] 3 Causation [71] to [72] 4 Quantum of Non-Pecuniary Damages [73] to [85] 5 Mitigation of Damages [86] to [88] Analysis (

a) Quantum of Damages [89] to [95] (

b) Reduction of Damages [96] to [100] (

c) Liability [101] to [114] Costs [115] Order [116] Introduction [1] The Claimant Yvonne Powell brings this action against the Defendant 585562 B.C. Ltd. as the result of injuries that she suffered on August 21, 2014, from an accident which occurred on the premises of the Seven Oaks Mall in Abbotsford, BC. At all times material to this action, the Defendant was the owner and operator of the mall. [ 2 ] It is not in issue that on August 21, 2014 the Claimant suffered an unfortunate accident when she struck her head on the end of a large gate at the entrance to a covered parking area.

The Claimant testified that she struck the end of the gate in the course of getting out of the way of an oncoming car that was entering the parking garage. She is now 73 years of age and has had an unfortunate series of accidents prior and subsequent to this incident. [ 3 ] The Defendant denies liability for the Claimant’s injuries and says that this accident occurred as the result of the Claimant’s failure to take reasonable care for her own safety.

The Claimant alleges that it is the Defendant who is at fault for creating a dangerous situation in which the blunt, darkened end of a large metal gate was left in a location and position that was difficult to notice, in an area that put pedestrians at risk because of its design and location. [ 4 ] The Defendant also asserts that if it is found liable for the Claimant’s injuries, its liability should be limited because of both the Claimant’s pre-existing condition and because of subsequent accidents that she experienced. The Claimant says that the bulk of her injuries arise out of this incident.

If the Defendant is found liable, the quantum of damages is in issue. [ 5 ] At the trial of this matter, the Claimant testified, as well as her physician and her chiropractor. Her physician was qualified to give opinion evidence, while her chiropractor testified only as to matters that he had observed or otherwise sensed, and as to what he had recorded. On behalf of the Defendant, its operations supervisor gave evidence. [ 6 ] Both the Claimant and the Defendant were very capably represented in this matter and the quality of advocacy of both lawyers was excellent. Following is a

summary of the evidence presented at trial, a

summary of the applicable law, and the analysis of how that law applies to these facts in arriving at the order made in this case.

Summary of Evidence [ 7 ] On August 21, 2014, the Claimant was living in Abbotsford, BC. At the time she was 70 years of age and had been a widow since 2011. She was retired, but had a very active retirement as a member of two chapters of the Red Hat Society (an international social organization for women) and as a volunteer with an organization that visits inmates at local correctional institutions. She lives alone (or in her words, “it’s just me and the dog”, her Border Collie).

She presented as a very kind and honest person, who acknowledged that she has difficulty with her memory sometimes. [ 8 ] August 21, 2014 was a Thursday and on that day the Claimant drove to the Seven Oaks Mall in Abbotsford to get prices for some things she was considering purchasing. It was close to noon, and she parked her car in a covered concrete parking area located on the east side of the mall between Bourquin Crescent and the east side of the mall itself, the portion near where the Sears store was. She got out of her car and proceeded to walk to the mall entrance located to the north of the Sears store.

To do so, she walked past an area where a bobcat was being stored and a wooden barricade prevented cars from parking in that area. [ 9 ] The area that she planned to leave the parkade was the same area where cars entered and exited. This entrance could be blocked off by a large hinged metal gate, and that gate was open at the time. The end of one half of the gate was located above a small

concrete curb or aisle, about the width of a sidewalk, beside the lane used by cars entering the parkade. The end of the gate is about two inches by two inches and it is hollow and open at the end. The bottom of this end of the gate is located about four feet from the top of the concrete aisle, and the concrete aisle is about seven inches from the ground. The top of the end of the gate measures fifty-eight inches (or four feet, ten inches) from the ground. The arm of the gate, when open, is locked in place, but has some play at the end. [ 10 ] The Claimant is five feet, five inches tall (or sixty-five inches).

At the time of this incident she was wearing open-toed sandals, which had very little (if any) heel on them. She was in a sober condition at the time, and says that she simply did not see the end of the gate, which she recalls as being black in colour. [ 11 ] The arm of the gate is painted yellow. The Claimant recalled that the end was painted black, but from the photographic evidence, this does not appear to be the case.

However the end is darker because of portions of the paint at that end either rusting or being scraped off when this arm of the gate slips into the other end when the gate is in the locked position. [ 12 ] The Claimant was walking out of the parkade towards the entrance to the mall. Outside of the parkade was another small parking area from which a separate roadway was located for cars to enter and exit the parkade and for a few vehicles to park closer to the mall.

Past these parking spaces was a perimeter road around the mall, with a cross-walk across that road, leading to the mall entrance to the north of the Sears store. The Claimant had planned on going to that entrance, using the cross-walk. [ 13 ] The Claimant walked out of this exit of the parkade, walking on what was for her the left side of the road, in order for her to face any on-coming traffic. As she reached this exit, she noticed an oncoming vehicle and she decided to step up onto the curb of this aisle, in order to get off of the portion of the road used by vehicles.

As she did so, she stepped into the end of the gate, which impacted with her face. She said that the impact was significant and it knocked her head back. In photographs taken of her that day, she has a very noticeable blackened right eye. An imprint consistent with the top corner of the hollowed end of the gate can be seen on the right side of her face, just below and to the right of her right eye socket. The pictures also show a very large bruise on the front of her right shoulder, near the top. [ 14 ] The Claimant testified that the black eye lasted for over a month.

The mark from the gate on her face remained for about a week, and her bruising persisted for two or three months. She described the persisting pain in her facial area as being similar to a toothache. The accident also gave her a lot of emotional pain that caused her to cry a lot. She was afraid to leave her house, and experienced periods of extended depression. These feelings persisted for three or four months.

She missed social activities that she wanted to go to, but felt that she could not. [ 15 ] The Claimant said that she did not notice the extended end of this metal gate because it was dark and not immediately visible. She was not wearing sunglasses or any other eyewear, but did have her contact lenses in at the time.

She testified that she had been to this mall on previous occasions, but could not recall ever noticing this gate before. [ 16 ] Several months after the Claimant suffered this injury, the Defendant installed a large metal or concrete post in between the end of the metal gate and the end of the cement wall of the parkade. This post was not present on the day of the Claimant’s accident.

At the time of the accident there would have been a large enough gap on top of the aisle between the end of the gate and the concrete wall for most people to walk between. [ 17 ] After the accident, the Claimant went back to her car and once she felt able to do so, she drove to the Abbotsford Hospital. After she was treated at the hospital, she returned to the mall and spoke to a female security officer. The Claimant said that this officer was very sympathetic and the Claimant gave a report of the incident to the officer. [ 18 ] That night the Claimant experienced considerable difficulty sleeping.

She had to sleep on her left side because of the pain in her right shoulder. The next day she returned to the hospital because her face was very sore and because they had told her to return if she needed to. [ 19 ] The Claimant sought treatment from her family physician, Dr. Richard Welsh. After his initial assessment, Dr. Welsh prescribed physiotherapy treatments for the Claimant. By this time the Claimant was experiencing a significant problem with headaches, radiating from the right side of the back of her head.

These headaches were triggered by household activities such as vacuuming, dog walking or any other physical activity involving the use of her right shoulder. This was accompanied by neck pain, which had begun right after the incident at the parkade. The Claimant described her neck pain as being constant. [ 20 ] The Claimant found that the physiotherapy she was receiving was not helping her. She was also seeing a chiropractor about her problems and she said that it felt to her that the chiropractic treatments were helping her more than the physiotherapy.

She stopped seeing the physiotherapist because both sets of treatment were too expensive and she felt that the chiropractic treatment was much more beneficial to her. She noticed some improvement in her neck following the chiropractic treatments. [ 21 ] At the time of giving her testimony, the Claimant said that she continues to have painful periods, especially if she has been doing house work or other strenuous activity. She uses medication as needed to control pain in her facial areas.

She said that she continues to go for chiropractic treatments every two to three weeks. [ 22 ] The Claimant was asked about a number of previous and subsequent accidents that she has had. She recalled that she had suffered an injury of some sort in 2013. She also remembered another injury when her car was not in park. The Claimant’s vehicle had rolled down her driveway and she was struck by the open car door. She said that she did not see her doctor about that injury, but she recalls that she had a lot of back pain from that incident.

She said that she did not suffer any lasting injury from this and described it as “just a bump.” She recalled another incident when she took a fall in a shower at a hotel. She struck her head and experienced some back pain. She said that she had difficulty in recalling when this happened, but was referred to records in which she reported this type of injury in May of 2014. [ 23 ] The Claimant agreed that she had some problems concerning anxiety before this accident which were related to some family issues.

She was prescribed medication for this anxiety and as a result she had been able to participate in all of her social activities before

the accident at the Seven Oaks Mall. [ 24 ] In December of 2016, the Claimant suffered a fall on some ice while visiting at a friend’s house. She testified that she applied ice to her back and saw her chiropractor and this seemed to address that problem.

She said of that incident, “it could have been worse” and said that she does not feel that the fall on the ice had any adverse effect on the pain she experienced as a result of the injuries she sustained at the Seven Oaks Mall. [ 25 ] She recalled another incident that had happened sometime in late 2016 or early 2017, when she was volunteering at a local prison and suffered a fall on the floor. She also recalled another incident in early 2016, when she hit her head on the trunk of her car when it failed to open up all the way.

She said she could have had neck pain from that incident, but had no specific memory of it. She recalled that that particular injury did not limit her in any way or otherwise restrict her activity. [ 26 ] The Claimant believes that the physical limitations that she suffers from today all stem from the incident at the Seven Oaks Mall. She said that these injuries have limited her ability to walk her dog, to perform vacuuming or yard work. She is unable to go bowling. She said of this incident, “this hasn’t ruined my life, but it has disabled it.” [ 27 ] Dr.

Richard Walsh has been the Claimant’s physician since 2007 and has been a physician since 1989. He was qualified to give opinion evidence in the field of family medicine. According to his records, he treated the Claimant for five previous injuries, which are summarized as follows:

a) On July 14, 2009 the Claimant was involved in a motor vehicle accident in which she sustained a grade 2 strain to her cervical and lumbar spine. This injury was treated with physiotherapy for her neck, upper back and chest pain. She was also prescribed anti- inflammatories. His records indicate that the Claimant returned to her pre-accident status within three months.

b) In November of 2013, the Claimant reported a fall in which she had injured her neck. She saw a chiropractor before seeing Dr. Walsh the following January. Her neck pain was associated with headaches. By February of 2014, the Claimant was no longer complaining about neck pain.

c) In April of 2014, the Claimant was injured when her car, which was in her driveway, began to roll back as she was trying to stop the car with her body. The open door struck her on the left flank and on her lower back. She also hurt both of her elbows. When seen the next day, she complained about occipital pain and reported also having chronic neck pain. She saw a chiropractor and by early May she was no longer complaining of neck pain.

d) On May 12, 2014, the Claimant reported having fallen a week earlier. (This is believed to be the fall she sustained in a shower at a hotel). She hit her head twice when she fell and experienced a stiff and sore neck. Her range of motion in the cervical spine had decreased. She was diagnosed with a neck strain and saw a physiotherapist for her injures. By early July of 2014 she was no longer complaining of neck pain.

e) In late July of 2014, the Claimant was complaining of intermittent tightness in her neck and said that she had been seeing a chiropractor and a physiotherapist “for some time” as the result of this injury. An examination of the Claimant showed that she had tenderness in the right region of her neck with a decreased range of motion and evidence of muscle spasm. [ 28 ] Dr.

Welsh had follow-up examinations of the Claimant on October 2, October 30, November 18, November 26, December 10, and December 16, all in 2014, and on January 6, January 13, January 23, February 10, March 12, March 25, March 30, April 8, May 1, June 9, July 9, August 7, August 19, August 25, September 3, September 11 and December 4, all in 2015, and on January 7, January 15, August 4, and August 29, all in 2016. An X-ray was taken of the Claimant’s facial bones on August 22, 2014 which showed everything to be normal.

An x-ray of the Claimant’s shoulder taken on October 2, 2014 showed similar results. [ 29 ] It was Dr. Welsh’s conclusion that the Claimant had sustained a contusion to the right side of her face as the result of the incident at the Seven Oaks Mall. His records indicate that the bruising resolved within a few weeks and there were no complications or residual effects. He also noted that the Claimant sustained a contusion to her right shoulder. Dr.

Welsh concluded that the Claimant’s shoulder pain improved significantly at the end of 2014 and was “basically resolved by the spring of 2015.” He noted that the Claimant suffered dizziness for a few months which, in his opinion, was directly attributable to this incident and that this gradually resolved within a few months. He concluded that this dizziness was likely the result of a mild concussion that the Claimant had sustained. [ 30 ] Dr. Welsh came to the conclusion that the Claimant had suffered a grade 2 neck strain as a result of this incident.

He noted a sudden increase in the Claimant’s pre-existing neck pain that had been improving since the fall she took in May of 2014. Two years after the incident, he wrote: “Despite treatments with anti-inflammatories, physiotherapy and chiropractic treatment, the neck pain has persisted. She continues to receive chiropractic treatment every two weeks. If she increases the intervals beyond two weeks, she notices an increase in her neck pain.

It is my opinion that the persistence of her neck pain is related to a combination of her pre-existing mild degenerative neck disease as well as her reliance on passive modalities such as chiropractic treatment. As there has been over two years since the injury, it is my opinion that her neck strain has evolved into a chronic myofascial pain syndrome. “Had she not had this injury, it is my opinion that her neck pain from the fall in May of 2014 would have resolved within a few months as had occurred with previous minor neck strains.

Also, had she not had the fall in May 2014, it is my opinion that her neck pain would have been just as severe and lasted just as long. This is evidenced by the fact that based on the amount of bruising and the mechanism of the injury, the neck strain in August 2014 was much more severe than the one in May 2014.” [ 31 ] Dr. Welsh also expressed the opinion that the Claimant’s increase in headaches following this incident was related to her facial bruising. Because the Claimant had no issues with tension headaches before this injury, Dr. Welsh concludes that they are directly the result of this injury.

He also concludes that this injury caused an increase in the Claimant’s anxiety. She had a previous history of mild anxiety before this incident, but Dr. Welsh is of the opinion that the severity of her anxiety following this incident was likely worse than

it otherwise would have been. [ 32 ] Dr. Welsh believes that the fall that the Claimant sustained in November of 2014 resulted in an increase in neck and back pain which resolved within a month without any long-term effects. In his opinion, the Claimant has “adequately cooperated and complied with the recommended investigations and treatments.” His only reservation is in regard to “her reliance on passive modalities such as chiropractic treatments” as opposed to active modalities such as stretching and strengthening exercises.

He believes that this has prolonged her symptoms and “contributed to the next strain evolving into a chronic myofascial pain syndrome”. He acknowledged that is may be due to the fact that the Claimant was not able to afford both physiotherapy and chiropractic treatments. He maintains his belief however that the Claimant would benefit from an active rehabilitation program focusing on strengthening and stretching exercises for her neck. [ 33 ] It is Dr.

Welsh’s prognosis that the Claimant’s right shoulder injury has now resolved completely and she is not at an increased risk of future right shoulder problems because of this incident. He also expects that the Claimant’s neck strain or her chronic myofascial pain will not result in any future degenerative or other conditions. [ 34 ] Dr. Gideon Killian is the Claimant’s chiropractor. He has half a century of experience in his profession. His records indicate that he first saw the Claimant for the injuries that are the subject of this claim on January 7, 2015.

He took an x-ray and also performed an examination that disclosed that the right side of her neck was tight and in spasm. The Claimant reported to him that she was experiencing pain radiating down her shoulder to her elbow, in the front of her body down to her sternum, and in the back to her scapula. She had difficulty in rotating her shoulders. Dr. Killian performed a range of motion examination and concluded that that the Claimant was experiencing spasms on her right side. He noted that her left leg was a half an inch shorter than her right leg and he detected a misalignment of her neck.

She was found to be extremely tense on the right side. The x-rays suggested that her skull had moved two degrees to the left, and believed that the tilt in her head had caused problems in her spinal alignment. [ 35 ] Dr. Killian saw the Claimant a total of eight times in January (including for the initial assessment and x-rays), and noted that she was responding very well to the chiropractic treatment she was receiving.

He saw her again seven times in February, four times in March, three times in April, four times in May, three times in June, twice in July, twice in August, twice in September, once in October, twice in November and once in December, all in 2015. In 2016 he saw her once in January, once in February, twice in March, once in April, once in May, twice in June, twice in July, four times in August, twice in September, twice in October, twice in November and four times in December.

In 2017 he saw her three times in January, once in February, twice in March, once in April, once in June, once in July, once in August, and once in each month from October to December. [ 36 ] Dr. Killian’s records note that the Claimant’s visits in December of 2016 followed her report of a fall she had suffered on December 13 th .

He described this saying that it was like going back to the beginning and said that her injuries were treated as if they were from a different problem. [ 37 ] In an Agreed Statement of Facts filed by the parties, the parties agree that in February of 2016 the Claimant sought treatment from a new family physician, Dr. Ciavarella. Between February 12, 2016 and July 27, 2017, she has attended for treatment from Dr.

Ciavarella on approximately 58 occasions. [ 38 ] In a document filed with her Certificate of Readiness, the Claimant has estimated her out-of-pocket expenses as follows: Paid to Glen Mountain Physiotherapy: $160 Paid to Clayton Heights Physiotherapy: $345 Paid to Dr. G. J. Killian for Chiropractic Treatments: $2,740.00 Paid for mileage for medical appointments: $397.80 Total: $3,642.80 [ 39 ] Don Bird is the operations supervisor for the Seven Oaks mall. He manages the day to day operations of the mall and is responsible for dealing with tenants, customers, maintenance and cleaning staff, and security.

Accidents at the mall which are reported to mall staff are brought to his attention. He testified that he was made aware of the Claimant’s accident two days after it had occurred. He went to where the accident had taken place and took photographs and measurements at that location. The measurements referred to earlier were taken by him and are recorded in photographs that he had taken. [ 40 ] Mr. Bird testified that the gate to the parkade was installed sometime in 2010 or 2011.

He was not aware of any other accidents involving people walking or running into the gate, or being otherwise injured by it, aside from the Claimant. Previously, the parkade entrance was blocked off with chains, but this was problematic because sometimes motorists would not notice the chains and drive into them. [ 41 ] Mr. Bird acknowledged that several months after the Claimant’s accident, large posts known as bollards were installed beside this gate and in two other locations.

He is unsure why he was told to install these. [ 42 ] In cross-examination he said that he did not know what more could be done to alert people to the presence of these large yellow gates. They were at eye level, they were painted a bright yellow, and ought to have been apparent to anyone keeping a proper lookout. Position of the Parties 1. The Claimant [ 43 ] Counsel for the Claimant notes that prior to the incident at the Seven Oaks Mall, her client was an active retiree with a busy

social life. She was also very active in community volunteer work. Counsel submits that her client cannot be said to be at fault for her injuries, and asserts that the state of the premises was such that, in order for persons such as her client to avoid oncoming traffic from the parkade to the mall, the only path of escape was to the area where the end of the gate was located. She says that her client was not contributorily negligent in sustaining her injures. Her vision was not impeded by sunglasses and she was wearing her contact lenses.

There was nothing wrong with her footwear and she had been to this area before. She argues that the negligence was entirely that of the Defendant for having unsafe premises by placing the gate in an area that was not easily visible, where persons would have to walk to avoid traffic, without any warning or protection from the gate’s blunt end. [ 44 ] The Claimant suffered extensive injuries, both in the bruising to her eye, face and shoulder, and in the neck strain that she has suffered.

Her injuries have necessitated numerous visits to her physician, the taking of x-rays, prescription medication for physical pain and for anxiety, physiotherapy and chiropractic treatments. These injuries have adversely affected the Claimant’s quality of life. She is unable to perform routine household chores or take her dog for walks without aggravating her injuries and bringing on fresh pain.

Her anxiety increased following this accident. [ 45 ] Counsel for the Claimant says that the Claimant should not be penalized for failing to continue with physiotherapy treatment, when it was not providing her with any noticeable relief, while costing her money that she could not afford. [ 46 ] The Claimant’s Counsel also argues that the injuries sustained in previous and subsequent accidents are unconnected to this accident. Counsel reviewed each of these accidents and distinguishes each from the accident that this action is concerned with, relying on the assessment of Dr.

Welsh that many of these injuries either resolved very quickly, involved injuries to different areas of the body, or had symptoms unconnected with those which resulted from the injury sustained at the Seven Oaks Mall.

She submits that this injury has resulted in chronic myofascial pain syndrome. [ 47 ] The Claimant’s Counsel says that causation has been made out on the evidence in this case, using the “but for” test (i.e. showing that the accident would not have occurred but for the action or inaction of the Defendant), in that it permitted the presence of a dangerous blunt metal object in an area where people may be expected to step to avoid oncoming parkade traffic.

Counsel argues that the Claimant acted on instinct and did not do anything wrong and cannot be said to be contributorily negligent in any way. [ 48 ] In submitting an appropriate quantum for the Claimant’s non-pecuniary damages, Counsel refers to the British Columbia Court of Appeal decision of Stapley v. Hejslet 2006 BCCA 34 and the list of factors set out in paragraph [46] of that decision. These include the Claimant’s age, the nature of her injury, the severity and duration of her pain, the nature of her disability, her emotional suffering and the loss of impairment of her life.

The court also added considerations of impairment of family, marital and social relationships, impairment of physical and mental abilities, loss of lifestyle, and the Claimant’s stoicism. Counsel has referred to comparable damage awards and submits that the appropriate quantum of damages for this Claimant’s injuries is $35,000. 2. The Defendant [ 49 ] Counsel for the Defendant submits that no liability should be found on the part of the Defendant. She argues that an occupier is not an insurer or a guarantor that no injury will befall those who use the premises.

The occupier’s duty is to keep the premises reasonably safe for those using them. She submits that this duty should not be expanded to ridiculous lengths. Reasonable adults will expect that parking lots and garages may have gates, and Counsel notes that the Claimant had seen this gate on other occasions and therefore was aware of its existence.

Counsel argues that it was the Claimant who failed to take reasonable care for her own safety by walking to the mall on the same path where cars entered, when there were alternate routes available with cross-walks. [ 50 ] Counsel submits that this incident occurred on a bright day when the parking gate in question was quite visible. Rather than simply stepping to the left to get out of the way of oncoming car, the Claimant elected to move to a perceived gap and misjudged where she was going.

Counsel argues that liability should not rest with the Defendant where, as in this case, the Claimant walked into a large stationary object that was painted bright yellow and bathed in sunlight. Counsel is unable to conceive how the Claimant could have possibly missed this object or how the Defendant might have made it more visible without going to unreasonable lengths. [ 51 ] The Defendant’s Counsel also notes that it is difficult to reconcile the Claimant’s version of the accident with the measurements taken of the gate.

At 5’5” (65 inches) tall, the Claimant came into contact with a gate that is 58 inches (4’10”) from the ground and 50.5 inches (4’ 2.5”) from the top of the curb. Given where the Claimant was struck on the face by the gate, Counsel argues that this suggests that the Claimant either tripped or had her head down, both of which the Claimant denies.

Counsel argues that the evidence suggests that the Claimant walked into a large yellow stationary object and that the only rational conclusion from the evidence is that the Claimant was not exercising due care and attention. [ 52 ] Counsel points out that the absence of previous accidents involving this gate support the conclusion that there was nothing unsafe about the gate. She also says that the subsequent erection of a bollard beside the gate is not an acknowledgement of unsafe premises.

The standard is one of safety, not of perfection and that the proximate cause of the Claimant’s injuries is her own failure to take proper care for her own safety, knowing from previous visits of the presence of the gates. [ 53 ] If any liability rests with the Defendant, then Counsel says that the quantum of non-pecuniary damages is much lower than the Claimant’s Counsel suggests. The Defendant’s Counsel acknowledges that while the Claimant is a very honest person, her memory is unreliable. Counsel says that the Claimant has failed to mitigate her damages by following the recommendation of Dr.

Welsh in supplementing her medical treatment with physiotherapy, an active modality, as opposed to chiropractic treatment, a passive modality. [ 54 ] Counsel for the Defendant states that a proper quantum of non-pecuniary damages for someone with the Claimant’s injuries is in the range of $10,000 to $12,000. This range takes into account the Claimant’s prior and subsequent injuries. Applicable Law 1. Liability

[55] The occupier of premises is not responsible for every injury that occurs on the premises and is not an insurer for everyone whosets foot on the property. The duty of care owed by the occupier is set out in section 3 (1) and (2) of the Occupiers Liability Act ofBritish Columbia. That

section reads as follows:

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

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

a) condition of the premises, (

b) activities on the premises, or (

c) conduct of third parties on the premises. [56] The question of whether or not this duty is met is determined on a standard of reasonableness. In Foley v. Imperial Oil Limited2011 BCCA 262, Madam Justice Smith of the British Columbia Court of Appeal summarized the law in this area as follows: [28] The standard imposed by the Act is one of reasonableness: the reasonableness of the system implemented to safeguard theparticular risk on the premises, and the reasonableness of the implementation of that system. The standard of reasonableness is not one ofperfection.

As was noted by the trial judge at para. 55, citing Lamont v. Westfair Properties (Pacific) Ltd., 2000 BCSC 406 at para. 20,“An occupier is not expected to be an insurer against all risks[.]” [29] The Act provides a complete code regarding the duty of an occupier of land. Reference to earlier common law cases is no longerrequired and may, in fact, result in legal error if the wrong standard of care (one based on the common law categories) is applied, ratherthan the statutory standard of care. The comprehensive nature of the standard of care of an occupier under the Act was confirmed inWeiss v.

Young Men’s Christian Association of Greater Vancouver (1979), 1979 (BC CA), 11 B.C.L.R. 112 (C.A.),where Mr. Justice Aikins, for the Court, noted at 118: ... In my view, s. 3(1) is comprehensive, in the sense that it fully and clearly imposes a duty on an occupier and defines the standard ofcare necessary to fulfil that duty. Thus, in my judgment, it is unnecessary to an understanding of the standard prescribed by thesubsection to refer to any of the specially formulated standards of care laid down in the common law cases.

Indeed, to do so is morelikely to mislead than assist in understanding what the subsection says. [30] As with any tort claim, the party advancing the claim carries the burden of proof on a balance of probabilities. The burden of proofin establishing liability under the Act was described in Kayser v. Park Royal Shopping Centre Limited (1995) (BC CA),16 B.C.L.R. (3d) 330 (C.A.) as follows: [13] The onus of proof on a plaintiff to prove the liability of a defendant on a balance of probabilities in a standard negligence actionalso applies in cases arising under the Occupiers Liability Act.

As Wood J.A. held in Bauman v. Stein (1991) (BCCA), 78 D.L.R. (4th) 118 (B.C.C.A.) at 127:

Section 3 of the Occupiers Liability Act does not create a presumption of negligence against “the occupier of the premises” whenever aperson is injured on the premises. A plaintiff who invokes that

section must still be able to point to some act (or some failure to act) onthe part of the occupier which caused the injury complained of before liability can be established. [57] In Bendzak v. Bohnet 2013 BCSC 435, Justice Schultes of the British Columbia Supreme Court reiterated, at paragraph [42] that“The standard of care is one of reasonableness and not perfection.

The occupier is definitely not an insurer against any possible risk ofharm.” He also affirmed that this standard of care is a comprehensive one, i.e. it is a self-contained standard and therefore it is notnecessary to refer to standards that are set out in cases of negligence generally. He went on to discuss this standard in greater detail: [43] The duty is not to ensure that those using the premises will be absolutely safe but to use reasonable care to prevent injury or harmfrom danger that is or ought to be known: Milina v.

Bartsch (1985) (BC SC), 49 B.C.L.R. (2d) 33 (S.C.), aff’d, 49B.C.L.R. (2d) 99 (C.A.). [44] The test is not “whether anything could have been done to prevent the injury using 20/20 hindsight, but rather whether the stepstaken by the occupier were reasonable in all the circumstances”: Duddle v. Vernon (City), 2004 BCCA 390 at para. 16. [45] Although it is not specifically mentioned in the section, the common law requirement of reasonable foreseeability of harm remainspart of the analysis of liability under the act: Rendall v.

Ewert (1989) (BC CA), 38 B.C.L.R. (2d) 1 (C.A.) at 9. [46] For a risk to be foreseeable it is not required that it be more likely than not to occur or that there needs to be some particular degreeof statistical probability attaching to it. In Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para. 13, Chief Justice McLachlandescribed the correct approach: Much has been written on how probable or likely a harm needs to be in order to be considered reasonably foreseeable. The parties raisethe question of whether a reasonably foreseeable harm is one whose occurrence is probable or merely possible.

In my view, these termsare misleading. Any harm which has actually occurred is “possible”; it is therefore clear that possibility alone does not provide ameaningful standard for the application of reasonable foreseeability. The degree of probability that would satisfy the reasonableforeseeability requirement was described in The Wagon Mound (No. 2) as a “real risk”, i.e. “one which would occur to the mind of areasonable man in the position of the defendan[t]... and which he would not brush aside as far-fetched” (Overseas Tankship (U.K.) Ltd. v.Miller Steamship Co.

Pty., [1967] A.C. 617 (P.C.), at p. 643). [Emphasis in original.]

[47] It is also not necessary that the exact type of injury that occurred be foreseen. As Mr. Justice Dickson explained in AssiniboineSchool Division No. 3 v. Hoffer (1971) (MB CA), 21 D.L.R. (3d) 608 (Man. C.A.), at page 614: It is enough to fix liability if one could foresee in a general way the sort of thing that happened. The extent of the damage and its mannerof incidence may not be foreseeable if physical damage of the kind which in fact ensued is foreseeable. [58] In Fulber v. Brown’s Social House Ltd. 2013 BCSC 1760, Madam Justice Gray of the British Columbia Supreme Courtaccepted the following

summary of the law in this area at para. 28: (

a) The goals of the Occupiers Liability Act are to promote positive action on the part of occupiers to make their premisesreasonably safe. (

b) The duty imposed by the Act is to take reasonable care in the circumstances to make the premises safe. The duty does notrequire occupiers to ensure that persons using the premises will be absolutely safe. (

c) The care that must be taken by an occupier differs according to the nature and use of the premises. (

d) The onus is on the plaintiff to prove on a balance of probabilities that the defendant breached this duty of care. The fact of injurydoes not create a presumption of negligence. The plaintiff must be able to point to some act or failure on the part of the defendant whichresulted in the injury. (

e) This duty of care does not extend so far as to require the defendant to remove every possibility of danger. The test is one ofreasonableness, not perfection. [59] In Cahoon v. Wendy’s Restaurant of Canada Inc. 2000 BCSC 629, Mr. Justice Burnyeat of the British Columbia SupremeCourt considered how prior safe use of a premises affected the question of whether or not premises were “reasonably safe” within themeaning of the Occupiers Liability Act.

He concluded: [16] The defendants submit that there have never been accidents in this location before and that this is the best indication that thisparticular area is "reasonably safe" for those using the premises. While "prior safe use" will not be determinative, prior safe use has beenfound to be a relevant factor in determining whether premises are reasonably safe: Jolley v. Pacific National Exhibition [1986] B.C.J.(Q.L.) No. 2284 (B.C.S.C.); Crerar v. Dover (BC SC), [1984] 3 W.W.R. 236 (B.C.S.C.); Trojan v. BuenavistaHoldings Ltd. [1987] B.C.J. (Q.L.) No. 2919 (B.C.S.C.); and Coleman v.

Yen Hoy Enterprises Ltd. et al [2000] B.C.J. (Q.L.) No. 403(B.C.S.C.). [60] In that case the court also considered what, if anything should be taken from the fact that the occupier has taken steps to makethe premises safer after an accident has taken place. Justice Burnyeat concluded that this was also not determinative.

He wrote: [21] Any "remedial" steps taken by the defendants are not to be considered as proof that such steps were required to make the premises"reasonably safe." The defendants only have to make the premises "reasonably safe." The defendants do not have to provide anenvironment which guarantees against all possible accidents. Steps taken after an accident may well only change an already reasonablysafe area to an area which is more than reasonably safe. On the other hand, steps taken after an accident may well convert an unsafe areato an area which is then reasonably safe.

What is done after the fact is merely a factor to be considered in answering the question ofwhether the area at the time of the accident was reasonably safe for occupants of the premises. [61] In Cahoon, the plaintiff injured himself when he stepped off of a sidewalk onto what appeared to him to be a wheelchair ramp,but what was actually part of the surface of the parking lot next to, but lower than, the wheelchair ramp. No liability was found on thepart of the occupier.

Justice Burnyeat wrote, at para. [26]: With even a minimal amount of attention paid, the edge of the sidewalk and the actual edge of the ramp were there to be seen. The testto be applied is one of reasonableness not perfection. The plaintiff was under a duty to be aware of his surroundings and I am satisfiedthat there was nothing about the premises which would mislead the plaintiff in any way. This accident could have been avoided by amodicum of awareness on the part of the plaintiff. [62] Lawrence v. Prince Rupert (City) and B.C.

Hydro & Power Authority, 2005 BCCA 567, was a case in which the plaintifftripped on a sidewalk that was partially blocked by a wooden power pole. As the plaintiff approached the portion of the sidewalk wherethe pole was, she tried to walk around it, but tripped and fell, resulting in serious injury to her.

This was not a case of occupier’s liability.Chief Justice Finch of the British Columbia Court of Appeal opined, at para [26] that the presence of the pole on the sidewalk did notpresent an “unreasonable risk” and that, given that there was sufficient room to walk safely around the pole, and given that the pole wasvisible and seen by the plaintiff. He wrote: [45] Hydro clearly had a duty not to create unreasonable risks to pedestrians using the sidewalk.

However, the only risk created byHydro in these circumstances, where there was 9.5 feet of unobstructed sidewalk, was that someone might not see the pole and might asa result trip over it. In the circumstances of this case, when the plaintiff saw the pole and knew that she must step around it, the risk ofinjury from Hydro’s conduct ceased to be a proximate cause of the accident. [63] Counsel for the Defendant also referred to Malcolm v. B.C. Transit (1998) (BC CA), 32 BCLR (2d) 317(B.C.C.A.).

In that case, the plaintiff was one of a group of passengers asked to get off of a bus so that the bus could drive up a hill, whilethese passengers walked up the hill. While doing so, the plaintiff lost her footing in wet grass and fell, breaking her arm. This was not acase of occupier’s liability. It was alleged that the defendant was negligent in not giving any sort of warning to the plaintiff. Thisargument was rejected.

Chief Justice MacEachern of the British Court of Appeal wrote: [10] In my respectful view, it is not negligence or a breach of any duty not to warn an adult person, not suffering under any disability, ofthe ordinary risks arising out of the exigencies of everyday life. Any such adult person without being warned knows and accepts the risks

of falling on a steep, wet, grassy slope or a path and it was not necessary, in my view, to give a warning of such a common everyday risk.Counsel in his able submission before us, himself described such a warning as superfluous. [64] Wickam v. Cineplex Inc. 2014 BCSC 850 was a case in which the plaintiff tripped and fell while crossing a parking lot medianat the Station Square shopping complex. It was alleged that the defendants were negligent in their failure to properly design the median,to provide adequate lighting and to post adequate warning of the hazard posed by the median.

After reviewing the law of occupier’sliability, Justice Sigurdson of the British Columbia Supreme Court held that none of these were the proximate cause of the plaintiff’sinjury.

He wrote: [62] In all of these circumstances, and keeping in mind that the standard is not one of perfection, I find that even though arguably thedefendant might have acted differently, it took the care that was reasonable to see that a person using its premises is reasonably safe. [63] I have concluded that in any event any lack of care on the part of the defendant by the manner of design or maintenance of themedian with a path and uneven stones was not the proximate cause of the plaintiff’s fall.

I think that the plaintiff’s failure to usereasonable care in light of an obvious risk of walking over wet uneven stones was the proximate cause of her injury. [65] In Driscoll v. Crombie Developments Ltd. 2006 NSSC 79, the plaintiff was walking along a sidewalk, past a parkade. Thesidewalk was obstructed by a car exiting the parkade and she went to walk behind the car. The car moved forward, triggering a sensorthat raised the arm of the exit gate, which struck the plaintiff and injured her.

Wright J. of the Nova Scotia Supreme Court held thatwhile the defendant occupier did not breach the standard of care owed to pedestrians from the position of the gate, it ought to have takenreasonable steps to warn pedestrians of the danger involved in walking behind cars blocking the sidewalk. Justice Wright held that it wasnot necessary for a claimant to present expert evidence in considering possible methods that could have been utilized to warn pedestrians,but found the defendant in breach of its duty to warn by doing nothing.

He also found that the plaintiff was contributorily negligent inwalking behind the car and found her 25% liable for her injuries. [66] The following

summary of the law emerges from a consideration of these cases: 1. An occupier of premises owes a duty to persons using the premises to take that care that in all the circumstances of the case,those persons will be reasonably safe in using the premises. 2. The standard of reasonableness is not one of perfection. The occupier is not an insurer against any possible risk of harm. 3. The Occupiers Liability Act provides a complete code regarding the duty of an occupier of land.

Section 3 of the Occupiers Liability Act does not create a presumption of negligence against an occupier whenever someone isinjured on the premises. A claimant has the burden of proof, on a balance of probabilities, to show some act (or some failure to act) onthe part of the occupier which caused the injury complained of before liability can be established. 5. The occupier’s duty is not to ensure that those using the premises will be absolutely safe. It is to use reasonable care to preventinjury or harm from danger that is or ought to be known. 6.

The test is not “whether anything could have been done to prevent the injury using 20/20 hindsight.” 7. In determining liability, reasonable foreseeability of the harm which occurred must be considered. 8. For a risk to be foreseeable, the degree of probability required is that it must be a “real risk”, i.e. “one which would occur to themind of a reasonable man in the position of the defendant and which he would not brush aside as far-fetched”. 9. The care that must be taken by an occupier differs according to the nature and use of the premises. 10.

While prior safe use is not determinative of the issue of occupier’s liability, prior safe use of premises is a relevant factor indetermining whether premises are reasonably safe. 11. Corrective or remedial steps taken by the defendants following an accident are not to be considered as proof that such steps wererequired to make the premises "reasonably safe." Actions taken after the fact are merely factors to be considered in answering thequestion of whether the area at the time of the accident was reasonably safe. 12. Persons using premises are under a duty to be aware of their surroundings. 13.

It is not negligence or a breach of any duty not to warn an adult person, not suffering under any disability, of the ordinary risksarising out of the exigencies of everyday life. 2. Contributory Negligence [67] One of the options in this action is to apportion liability between the Claimant and Defendant, as was done in Driscoll v.Crombie Developments Ltd., supra. This would be the result if it was found that the Defendant was liable for the Claimant’s injuries, butthat the Claimant’s conduct was also a proximate cause of the injuries she suffered.

The burden of proof of the former rests with theClaimant, while the burden is on the Defendant to prove the latter (both on a balance of probabilities.) A finding of contributorynegligence requires proof of foreseeability of harm to oneself. [68] The test for contributory negligence was summarized by Denning L.J. in Jones v. Livox Quarries Ltd., [1952] 2 Q.B. 608(C.A.), a

summary accepted with approval by the British Columbia Court of Appeal in Ackley v. Audette 2017 BCCA 283 and by theSupreme Court of Canada in Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., (SCC), [1997] 3 S.C.R.1210. In Jones, Lord Denning writes at page 615;

Although contributory negligence does not depend on duty of care, it does depend on foreseeability. Just as actionable negligencerequires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guiltyof contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurthimself; and in his reckonings he must take into account the possibility of others being careless. [69] Counsel for the Claimant referred to the Ontario Superior Court of Justice decision of Baker v.

York (Regional Municipality) (ON SC), 2006 84 O.R. (3d) 279, a case in which the plaintiff was a witness at a trial, and injured herself steppingout of the witness box. After finding that the witness box in question was unsafe without adequate warning, the trial judge nextconsidered the question of contributory negligence and concluded as follows: [49] A defendant must establish on a balance of probabilities that the plaintiff failed in her own interest to exercise reasonable care forher own safety. It is a question of fact whether the plaintiff was negligent.

Mere forgetfulness or want of attention, failure to look forsome source of danger that is not present to the mind of the person injured is not contributory negligence. Bowron v. Clova Theatre Ltd.(1969) (BC SC), 68 W.W.R. 633 (B.C.S.C.) [50] I do not accept that Mrs. Baker did anything in exiting the witness box but fail to look for a source of danger that was not in hermind. She was using the witness box in the way in which it was intended to be used. There was nothing unusual about how she wasdressed or how she acted that in any way contributed to the accident.

She was not contributorily negligent. [70] As the authorities submitted by counsel set out, in order to establish contributory negligence on the part of the Claimant, theDefendant must show, on a balance of probabilities that the Claimant ought to have reasonably foreseen that, if she did not act as areasonable, prudent person, she might be hurt herself. In order for something to be reasonably foreseeable, it must be something thatwould occur in the mind of a reasonable person in the Claimant’s position, such that she would not that possibility as too remote to evenworry about. 3.

Causation [71] For the Claimant to establish causation within the context of liability for personal injury, she must prove, on a balance ofprobabilities, that the Defendant either caused or contributed to her injuries. In Athey v. Leonati (SCC), [1996] 3 S.C.R.458, Justice Major of the Supreme Court of Canada set out the law on this topic as follows (in paragraphs 13 to 17 of the judgement): 1. The general test for causation is known as the “but for” test. Under this test, the Claimant must show that her injury would nothave occurred, but for the negligence of the Defendant. 2.

Causation is established if the Defendant’s negligence “materially contributed to the Claimant’s injury. 3. A contributing factor is material if it falls outside of the de minimis (trifling) range. 4. The causation test is “not to be applied too rigidly” and does not have to be determined by “scientific precision.” 5. The Claimant does not have to prove that the Defendant’s negligence was the sole cause of her injury. “As long as a defendantis part of the cause of an injury, the defendant is liable, even though his act along was not enough to create the injury.” 6.

There is no basis for a reduction of liability because there are existing pre-conditions. The Defendant is liable for all injuriescaused or contributed to by its negligence. [72] These principles were reaffirmed by the Supreme Court of Canada in Resurfice Corp. v. Hanke 2007 SCC 7 , [2007] 1S.C.R. 333.

In that decision, Chief Justice McLachlin once again stated that the “but for” test remains the basic test for causation and thata plaintiff bears the burden of showing that his or her injury would not have happened, “but for” the negligence of the defendant. (Therethe court discussed two exceptions to this rule, neither of which applies in this case.) 4. Quantum of Damages [73] In this case, the medical evidence presented supports the following conclusions: 1. The Claimant had suffered a grade 2 neck strain as a result of the incident that is the subject of this litigation. 2.

Her pain has persisted, despite treatments with anti-inflammatories, physiotherapy and chiropractic treatment. 3. The Claimant continues to receive chiropractic treatment every two weeks, and if she increases the intervals beyond two weeks,her neck pain increases. The medical evidence suggests that the persistence of her neck pain is related to a combination of her pre-existing mild degenerative neck disease as well as her reliance on passive modalities such as chiropractic treatment. 4. The Claimant’s neck strain has evolved into a chronic myofascial pain syndrome. 5.

The Claimant’s increase in headaches following this incident was related to her facial bruising. Her tension headaches aredirectly the result of this injury. 6. This injury has caused an increase in the Claimant’s anxiety. 7. The fall that the Claimant sustained in November of 2014 resulted in an increase in neck and back pain which resolved within amonth without any long-term effects. 8.

The Claimant’s reliance on passive modalities such as chiropractic treatments as opposed to active modalities such as stretchingand strengthening exercises may have prolonged her symptoms and contributed to the next strain evolving into a chronic myofascial pain

syndrome. 9. The Claimant’s right shoulder injury has now resolved completely and she is not at an increased risk of future right shoulder problems because of this incident. 10. The Claimant’s neck strain or her chronic myofascial pain will not result in any future degenerative or other conditions. [ 74 ] Counsel for the Claimant submits that in considering an appropriate quantum of non-pecuniary damages for the Claimant’s injures, those factors listed by the British Columbia Court of Appeal in Stapley v. Hejslet 2006 BCCA 34 (at para. [46] ) must be considered, namely: (

a) The age of the plaintiff; (

b) The nature of the injury; (

c) The severity and duration of pain; (

d) Any disability; (

e) Emotional suffering; (

f) Loss or impairment of life; (

g) Impairment of family, marital and social relationships; (

h) Impairment of physical and mental abilities; (

i) Loss of lifestyle; and (

j) The plaintiff's stoicism (as a factor that should not, generally speaking, penalize a plaintiff). [ 75 ] The court stated that an award for non-pecuniary damages depends not only on the seriousness of the injury, but also upon its ability to ameliorate the condition of the Claimant, considering her particular situation. In dealing with an award of this nature it is impossible to develop a "tariff". The amount of this head of damages will vary in each case to meet the specific circumstances of the individual case. [ 76 ] Special considerations apply to persons who are of retirement age. In Fata v.

Heinonen 2010 BCSC 385 , Madam Justice Griffin of the British Columbia Supreme Court wrote: [88] 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. [ 77 ] In Fata , the plaintiff suffered injuries as a result of a motor vehicle. The accident occurred on November 13, 2006 when the plaintiff was 59 years old. Most of the plaintiff’s injuries had healed by the time of trial (in December of 2009), but he was left with a long-term painful shoulder condition.

This injury did not prevent him from doing most day-to-day activities, but caused him pain and restricted him from doing some heavier activities that he would have done but for the accident. Non-pecuniary damages were assessed at $45,000. [ 78 ] The plaintiff in Duffhuis v. Bloom 2013 BCSC 1180 was injured in a motor vehicle accident when the car in which she was a passenger was struck from behind. She was 76 at the time of the accident. She suffered a significant neck injury that was unresolved at the time of trial (which began 18 months after the accident).

She also had upper back pain, but this resolved early on. The injury restricted the plaintiff’s ability to do housework and gardening. At the time of the accident, the plaintiff had two previous relevant health issues. She suffered from osteoporosis, and also had prior recent complaints of neck pain. She was diagnosed as having a soft tissue injury of the cervical spine. The medical opinion was that he pre-existing degenerative changes were only minimally symptomatic prior to her accident. The trial judge, Mr.

Justice Steeves, apportioned the pre-existing injury as being responsible for 20% of her current neck problem. Non-pecuniary damages were assessed at $35,000. [ 79 ] Nisbet v. Pare 2007 BCSC 1173 was another case in which the plaintiff was injured when her car was struck from behind. She was 54 years old at the time of the accident. As time passed, the plaintiff began to suffer shoulder and arm pain, which was attributed to the accident. She was diagnosed as having soft tissue injuries. Mr. Justice Burnyeat found that while she had achieved a 75% to 80% recovery, the prospect of full recovery was unclear.

Non-pecuniary damages were assessed at $35,000. [ 80 ] The 68 year-old plaintiff in Weinmuller v. Tait 2006 BCSC 416 was also injured in a similar manner as the plaintiff in the last two cases (a rear-end motor vehicle collision). She complained of immediate neck and back pain as was diagnosed as having soft tissue injuries. Her injuries persisted, but at the time of trial, three years after the accident, many of her injuries had resolved. Her shoulder injury resolved within two months and her neck injury lasted about a year. She continued to have pain in her hip and lower back.

Non- pecuniary damages were assessed at $35,000. [ 81 ] Counsel for the Defendant has submitted a number of authorities that provide a lower range of damages for this type of injury. In Baines v. Park 2014 BCSC 1818 , the 45 year-old plaintiff was injured when her car was struck by another car backing into it. Her injuries were described as aggravation of a cervical strain (soft tissue injury) of moderate severity and aggravation of a lumbar strain with progression to chronic mechanical back pain.

This accident had occurred in May of 2010, but from 1997 to the date of this accident, the Claimant had been injured in nine motor vehicle accidents and seven falls. The late Mr. Justice Joyce stated that it was “trite law that the

defendant need not compensate the plaintiff for any debilitating effects of a pre-existing condition if the plaintiff would have experiencedthem regardless of the accident.” He found that “the plaintiff’s pre-accident condition was such that there was a risk that she would haveexperienced some neck and back pain, on-and-off, even if she had not been injured in” this collision. He awarded $15,000 for non-pecuniary damages, but reduced the award by 10% on account of the plaintiff’s pre-existing condition. [82] In Galbraith v.

Marin 2004 BCSC 671, the 72 year-old plaintiff was a front-seat passenger in a vehicle that struck anothervehicle. The accident took place in October of 2002, but the plaintiff had been injured in another accident in May of 1997. She hadrecovered from that accident within a year. She also suffered from a degenerative disc disease and from spinal spondylosis. She sufferedneck pain as a result of the 2002 accident.

Madam Justice Smith found that the plaintiff had not proven any permanent residual disability.Non-pecuniary damages were assessed at $12,000, taking into account that the plaintiff’s pre-existing buy asymptomatic spondylosishad increased her pain sensitivity and contributed to her prolonged recovery from the injuries sustained in this accident. [83] In Jahn v. Manesiotis et. al. 2003 BCSC 1260, the 54 year-old plaintiff was injured in a motor vehicle accident when the vehicleshe was driving was struck from behind. Mr.

Justice Williams found that, at the time of the accident, the plaintiff was still experiencingsymptoms from a prior work-related injury. He concluded that the plaintiff’s injuries from the motor vehicle accident were “initially ofmoderate severity, but then gradually resolved, such as to be characterized as relatively minor, to the point of full resolution” a year afterthe accident.

He assessed non-pecuniary damages at $12,500 and reduced this award by 20% because of the plaintiff’s pre-existingcondition. [84] The final authority referred to by the Defendant’s Counsel on the issue of quantum of non-pecuniary damages is Zhibawi v.Anslow 2015 BCSC 1824, also a decision of Mr. Justice Williams. In that case, the plaintiff was a passenger in a car that was struck frombehind by the defendant’s vehicle. The plaintiff complained of significant pain to her neck and lower back, and daily headaches for thefirst six months after the accident.

Justice Williams concluded that the plaintiff had suffered a mild to moderate soft tissue injury thatprevented her from returning to work for two weeks. The bulk of her injuries had resolved within six months. He assessed non-pecuniarydamages at $14,000. [85] A review of these authorities establishes a range of damages for the type of injury sustained by the Claimant in this case from$12,000 to $35,000.

Awards at the lower end of the range are more likely where there has been early recovery, while those at the higherend of the range are more likely in cases of chronic and ongoing pain and suffering. 5, Mitigation of Damages [86] The Claimant in this case in under a duty to mitigate her damages, in other words to take any reasonable steps that will reduceher damages. The onus of proving that the Claimant did not do so rests with the Defendant. In Chiu v. Chiu 2002 BCCA 618, Mr.

JusticeLow of the British Columbia Court of Appeal wrote: [57] The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss. In a personal injury case inwhich the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things:(1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff’sdamages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito, (SCC),[1985] 1 S.C.R. 146. [87] In Gregory v.

ICBC 2011 BCCA 144, Madam Justice Garson of the British Columbia Court of Appeal stated (at para. [56]) thatthis is a “subjective/objective test”. In other words, to find the failure of a duty to mitigate, the court must first be satisfied that areasonable patient in the position of the Claimant would have undergone the recommended treatment, and secondly that there is somelikelihood that the recommended treatment would have resulted in a substantial benefit to the Claimant if she had taken it. [88] In Smith v.

Both 2013 BCSC, Madam Justice Russell of the British Columbia Supreme Court observed that in assessing whetheror not the Claimant has met her duty to mitigate, the Claimant is to be held not to “a standard of perfection, but to a standard ofreasonableness” (at para. [114]). Analysis (

a) Quantum of Damages [89] The most significant issue in this case is whether or not the Defendant is liable for the injuries sustained by the Defendant at theSeven Oaks Mall on August 21, 2014. The other issues in this case are more easily resolved. Because the issue of liability is not clear-cut, I will first address the other issues in this case. [90] It is not in issue that the Claimant was injured in this incident. While her memory is not the best, her injuries have been assessedand documented by her physician.

She has been found to have suffered a grade 2 neck strain as a result of the incident that is the subjectof this litigation. Her pain has persisted, despite treatments with anti-inflammatories, physiotherapy and chiropractic treatment and shecontinues to receive chiropractic treatment every two weeks. If she increases the intervals beyond two weeks, her neck pain increases. [91] The medical evidence suggests that the persistence of her neck pain is related to a combination of her pre-existing milddegenerative neck disease as well as her reliance on passive modalities such as chiropractic treatment.

Her neck strain has evolved into achronic myofascial pain syndrome and she has experienced an increase in headaches following this incident. The medical evidencesupports the conclusion that her tension headaches are directly the result of this injury. The evidence also suggests that this injury hascaused an increase in the Claimant’s anxiety.

Her neck strain or her chronic myofascial pain will not result in any future degenerative orother conditions according to the medical evidence. [92] The Claimant’s right shoulder injury has now resolved completely and she is not at an increased risk of future right shoulderproblems because of this incident.

[ 93 ] The medical evidence also suggests that the fall which the Claimant sustained in November of 2014 resulted in an increase in neck and back pain which resolved within a month without any long-term effects. [ 94 ] The case law which counsel have presented suggests that an appropriate quantum of non-pecuniary damages for these injuries, if full liability is found on the part of the Defendant is in the range of $25,000 to $35,000.

A relevant factor in this case is the Claimant’s age, and the decrease in the enjoyment of her retirement years that follow from her injuries, as that principle was articulated in Fata v. Heinonen , supra. Another aggravating factor is the decrease of the Claimant’s ability to do housework, dog walking, and many of the other activities which she enjoyed prior to this incident.

The ongoing nature of the pain is also a factor which elevates the quantum of non-pecuniary damages in this case. [ 95 ] Many of the cases submitted by counsel for the Defendant are ones in which the plaintiff’s injuries either resolved quickly, or where the injuries were characterized as relatively minor. Neither of those descriptions matches the Claimant’s injuries in this case, according to the medical evidence.

On a review of the medical evidence presented in this case and of the authorities, I find that, if the Defendant is found to be fully liable for the Claimant’s injuries, an appropriate quantum of non-pecuniary damages for these injuries is $30,000. (

b) Reduction of Damages [ 96 ] Aside from the question of liability, Counsel for the Defendant submits that the quantum of damages should be reduced in this case for a number of reasons including the Claimant’s pre-existing condition, her subsequent injuries, and her failure to mitigate her damages by following the recommendation of her doctor for physiotherapy, an active modality. [ 97 ] On the first of these, Counsel for the Defendant directs this court’s attention to the decision in Duffhuis v. Bloom , supra, where non-pecuniary damages were reduced by 20% because of a pre-existing condition. In Dr.

Welsh’s opinion, the Claimant’s pre-existing neck pain had been improving, so on the one hand, this accident impeded that recovery. Dr. Welsh does state, however, that “the persistence of her neck pain is related to a combination of her pre-existing mild degenerative neck disease” along with her reliance on passive modalities. [ 98 ] The comments of the late Mr. Justice Joyce in his reasons for judgement in Bains v. Park , supra, at paragraph [42] apply to this case as well.

In both cases, the injured party’s pre-existing condition was such that there was a significant risk of ongoing pain even if the injury that is the subject of the litigation had not occurred. Accordingly, I am persuaded that any award for non-pecuniary damages should be reduced. The evidence does not directly speak to the question of how much of a discount should be given. I adopt the figure of 10% used by Mr. Justice Joyce and find this to be an appropriate discount in this case. [ 99 ] Dr.

Welsh was also of the opinion that the Claimant’s reliance on passive modalities such as chiropractic treatments as opposed to active modalities such as stretching and strengthening exercises may have prolonged her symptoms and contributed to the neck strain evolving into a chronic myofascial pain syndrome. Counsel for the Defendant argues that this constitutes a failure to mitigate damages and any amount awarded to the Claimant should be reduced accordingly.

While I agree that the Claimant is under a duty to mitigate her damages, I do not find that her failure to attend for physiotherapy should result in a reduction of any award for non-pecuniary damages. In the first place, the evidence of Dr. Welsh is speculative, in that it concludes that her failure to receive more physiotherapy “may have” resulted in prolonged symptoms.

This is not apparent from the fact that the Claimant did attempt some physiotherapy, without any discernible results. [ 100 ] Secondly, the Claimant testified that budget was an issue in determining what treatments she would receive, and she found that when it came to how she felt, her money was better spent on chiropractic treatment than on physiotherapy. She testified that she could not afford both. In my view, to penalize the Claimant for not paying for both modes of treatment would be to penalize her for her economic circumstances.

It would set one standard for those who can afford both treatments and another for those who can’t. This is contrary to the direction of the British Columbia Court of Appeal in Chiu v. Chiu , supra, which requires the Defendant to prove that the Claimant has acted unreasonably. On the evidence presented in this case, I am unable to find any failure on the part of the Claimant to mitigate her damages. (

c) Liability [ 101 ] While much of these reasons have addressed what the proper quantum of damages is, this presumes that the Defendant is liable for some or all of the Claimant’s injuries, something which is very much in issue, and which is at the heart of this litigation. This is not at all clear in this case, and presents the most challenging issue in this case. [ 102 ] The Defendant’s activity in connection with the Claimant’s injuries was entirely passive. It did not strike or collide with the Claimant or initiate any sort of contact with her.

If the Defendant is to be found liable in this case, this must arise as a result of the Defendant’s status as the occupier of the premises on which the Claimant sustained her injury. These premises operate as a shopping mall. At the time of the Claimant’s injury, members of the public were invited and even encouraged to come to the mall and shop.

The presence of persons like the Claimant at the mall was directly beneficial to the Defendant’s tenants, and indirectly to the Defendant itself. [ 103 ] As an occupier, the Defendant makes no guarantee that everyone who sets foot onto its premises will be completely safe or free from injury. However the Defendant does owe a duty at law to persons using the premises, such as the Claimant, to take that care that in all the circumstances of the case, those persons will be reasonably safe in using the premises.

The standard is one of reasonableness and not one of perfection. [ 104 ] In this case, the Claimant has the burden of proof, on a balance of probabilities, to show some act (or some failure to act) on the part of the occupier which caused her injuries complained of before liability on the part of the Defendant can be established. She must show that somehow the Defendant failed to use reasonable care to prevent injury or harm from a danger that it knew of or that it ought to have known of.

It is easy, using 20/20 hindsight, to say: “if only the Defendant had done this or that, the Claimant would not have been injured.” This is not the test however. The test is one of reasonable foreseeability of the harm which occurred.

[ 105 ] For a risk to be reasonably foreseeable, the degree of probability of it happening must be such that a reasonable mall operator in the position of the Defendant would not brush it aside as “far-fetched”. This is not always something easy to discern. The care that an occupier is expected to take depends on the nature and use of the premises.

It is also relevant for the occupier to consider whether something has been a problem in the past, although prior safe use does not mean that an employer should not be concerned about something. [ 106 ] In this case, after the Claimant’s accident, the Defendant took steps to prevent other persons from walking in the area between the end of the gate that the Claimant struck and the parkade wall.

While this is something to consider in deciding if the premises were reasonably safe when the Claimant had her injury, this doesn’t automatically mean that they were unsafe at the time of her accident. [ 107 ] Persons using premises are under a duty to be aware of their surroundings. For example, people crossing a street should watch for cars. People who are distracted can walk into all kinds of objects or structures that can cause injury if they are not paying attention.

A corner of a building is not normally considered an unsafe object, but if someone who is distracted happens to walk into it, he or she can become injured. However the law does not normally require property owners to put caution signs in front of building corners or fences around them. As was said in Malcolm v.

BC Transit, supra , the law does not usually required that a warning be given to adult persons, not suffering under any disability, of the ordinary risks arising out of the exigencies of everyday life. [ 108 ] In this case the Claimant injured herself by stepping into a stationary object, one that was located at near eye level. This in itself may be indicative of a failure on the Claimant’s part to watch where she was going. But as has been shown by the case law, it is not always this simple.

Stepping out of a witness box is not usually a dangerous activity, and yet there may be times when some cautionary warning is necessary. Similarly, most people understand how the barricade arm at a parking garage operates, and yet there may be times when some warning to persons who approach it may be required. [ 109 ] In Driscoll v. Crombie Developments Ltd. , supra, a foreseeable risk of harm was found to exist from the fact that the arm of a parking gate was close to a pedestrian sidewalk, and the immediate drop of that arm posed a risk to those pedestrians once a vehicle moved from a stopped position.

That is a situation unlike this one, where nothing was in motion, other than the Claimant herself. In Baker v. York (Regional Municipality) , supra, the step on which the plaintiff was injured was such that there were no visible features to alert the plaintiff of its existence. The court found that it was effectively camouflaged. In this case, the end of the parking gate was visible, although the Claimant says that the blackness of the hollow end made it less noticeable.

It was located at eye level, but not directly in the Claimant’s path or in the path of other persons walking out of the parkade to the mall. [ 110 ] The fact that this was a stationary object is not conclusive of a finding that the Claimant was solely liable. If there is something inherently dangerous about the presence of that object, then the duty exists for the Defendant to take adequate steps to address that danger. For example, if this gate had a sharp pointy end to it, something would have to be done about that. Here, it is not the nature of the gate itself, but its location that is said to be problematic.

It is located in an area where there is both vehicular traffic and pedestrian traffic. One can imagine that there may come a time when a pedestrian who chooses to walk to the mall in the path of oncoming vehicles might have to leap out of the way of an approaching vehicle into the area of the gate.

But in order for liability to be founded on the Defendant, the presence of that risk must be foreseeable, and it must be a risk caused or contributed to by the Defendant. [ 111 ] A risk is reasonably foreseeable if the degree of probability of it happening is such that a reasonable occupier in the position of the Defendant would not brush it aside as “far-fetched”. In this case, the Defendant knew that pedestrians would exit the parkade in the area of that gate. The Defendant was not obliged to anticipate every potential way in which a pedestrian might be injured.

It was expected to address only what was required to make users of the premises reasonably safe. It was reasonable for the Defendant to assume that persons exiting the parkade would take reasonable care for their safety, that they would keep a proper lookout for vehicle traffic and avoid walking in the path of oncomi

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