Tort law — Negligence — Causation — Damages — General damages — For personal injuries — Loss of income — Special damages — Limits on compensatory damages — Duty to mitigate.

       Action by Warner against 2331653 Nova Scotia (Bulk Barn) for damages suffered when she was injured when a plastic bin was pushed into her by one of Bulk Barn's employees. Warner continued working for five years until 2001, when her left leg fell into an open cold air duct return at her home. She had also experienced a number of other traumas before and after the accident. At issue was the degree of her functional limitations, the extent they were traceable to the accident and the use of an actuarially prepared report.

       HELD:  Action allowed. Warner was awarded general damages of $75,000, one year of past lost income, future loss of income of $125,000, future care costs of $30,000 and special damages of $3,580. The actuarial evidence as to the current value of Warner's past and future loss of income was of little assistance because of the many contingencies relating to her claim, both as to her present condition and whether she was able to engage in gainful employment, and if not, whether this was the result of the accident or the subsequent air duct accident. Although Warner had suffered a multitude of trauma, particularly since the accident, the accident was a substantial contributory cause to her current condition, including both her functional limitations and her pain and suffering. This was not an appropriate case to discount the award of damages on account of a failure to mitigate.

Counsel: Jamie MacGillivray, for the plaintiff. James L. Chipman and Shelley A. Wood, for the defendants.

¶ 1     MacADAM J.:— The Plaintiff, Karen Warner, formerly known as Karen Murphy was injured on November 27th, 1996, as a result of an accident at the Bulk Barn Food Store, located in Lower Sackville, Halifax County, Nova Scotia. ("the accident")

¶ 2      The Defendants do not contest liability, but raise a number of causation issues, including, her injuries from the accident, the extent of her present disability, and the degree to which any present disability is casually linked to the accident.

¶ 3      In the late evening of November 27th, 1996, Ms. Warner, together with her mother, attended at the Bulk Barn for the purpose of purchasing Christmas baking ingredients. After inquiring from employees as to the location of the items which they wished to obtain, they went to the directed aisle. Her mother suggested Ms. Warner retrieve the items that were located in the bins at or near the floor. Ms. Warner crouched down for the purpose of obtaining these items. While doing so, she was struck by a product bin. At the time of these events, the store was apparently getting ready to close and an employee, Steven Boutilier, was in the process of removing bins and other containers from other parts of the store, and from the mall area in front of the store, to the aisles inside the store for the purpose of securing the premises overnight. The bin apparently became wedged into another bin and another employee, Erica Dominix, in an attempt to free the bin pushed it back and forth striking the Plaintiff a number of times. The degree of force and the number of times the Plaintiff was struck are very much in dispute.

¶ 4      Ms. Warner's evidence at trial, in many respects confirmed by her mother, as well as the description she apparently provided to a number of the doctors and other professionals who treated her following the accident, describes an event of substantial force and violence as opposed to the evidence of Mr. Boutilier and Ms. Dominix, who describe collisions of little impact or force.

¶ 5      The Defendants reference a number of the medical witnesses who indicated that in determining their diagnosis and treatment, one of the factors they would be considering was the description of the event which had caused the injuries. The Defendants suggest therefore, that the opinions of these doctors must virtually be ignored, or at least substantially discounted, in that the description given to them by Ms. Warner was inconsistent with the evidence of the two store employees, whose evidence should be preferred in the circumstances.

¶ 6      Although not canvassed by counsel with any of the professionals, it is clear collisions of substantial force and impact can result in little injury, while much less severe collisions can have a wide range of injuries sometimes leading to permanent, total or partial, disability. The relevance of the description by the Plaintiff, as well as her mother, of the nature of the collision relates to the degree to which she was prone to exaggerate the circumstances, including the extent of her injuries and subsequent disabilities. Although I am not satisfied her medical evidence has to be discounted, because the doctors and other professionals were under the impression the bin operated by the store employee was either a motorized vehicle or more substantial than what was actually pushed into Ms. Warner, I am nevertheless influenced in my assessment of her credibility by what appears to be a pattern of exaggeration and overstatement. The Plaintiff's counsel, in his brief, suggests the errors could have involved mistakes or mis-understandings by the professionals in recording what they had been told by Ms. Warner. Indeed, this could very well be the case and there were instances where errors in their notes could well have been the result of such misunderstandings or mistakes. However, the pattern that appears in the reports and in the evidence of the persons who were called to testify, indicates something more than simply mis-understandings or mistakes by the professionals in recording what they have been told. I could accept one or two occasions, but the fact is, on the evidence, virtually all the professionals, at some point, formed the opinion that the accident involved much more force and impact than what was apparently the case.

¶ 7      Nevertheless, I am satisfied Ms. Warner was injured and the injuries manifested themselves almost immediately. In this regard, the evidence of the family doctor, Dr. Seetharamdoo, of his findings of "traction injury to the left upper limb, complaints of pain in the right thigh, and acute tenderness over the neck and shoulder region, left upper interior chest wall, cervical spine with pain radiating to the left wrist", is uncontested. Regardless of any pre-accident injuries, and despite the lack of any severe violence in the accident itself, I am satisfied Ms. Warner was injured on November 27th, 1996 and that the injuries were caused by the negligence of employees of the Defendants for whom the Defendants are, in law, vicariously liable.

Credibility

¶ 8      Although, as noted, issues of credibility arise in respect to Ms. Warner's evidence, I am not, as suggested by the Defendants, prepared to reject her evidence in total. I am satisfied she was injured and that her continued visits to Dr. Seetharamdoo during the years following the accident were for the treatment of the injuries and the pain resulting from the accident.

¶ 9      The Defendants refer to the statement by Justice Freeman, at para. 77, in White v. Slaughter (1996), 149 N.S.R. (2d) 321:

¶ 10      Clearly Ms. Warner has been in pain for a considerable period, including for the almost 7 1/2 years that have transpired since the date of this accident. I am satisfied, for whatever reason, she exaggerated the circumstances of the accident in describing it to the professionals who were treating her and, as well, while giving evidence on the witness stand. As noted by Dr. Heitzner, who examined her and filed a report, erroneously overstated by being entitled "Physiatrist's Independent Medical Examination Report", her demonstration of complaints on his examination were inconsistent with what would have been expected from a person with the complaints being advanced by Ms. Warner. Dr. Heitzner concluded her problems were based, not on any neurological impairment, but on her own perception of herself as being totally disabled.

¶ 11      Considering the other medical evidence, primarily professionals called on behalf of the Plaintiff, I am not satisfied she has no neurological impairment and that her present problems are only the result of her perception of herself as being totally disabled. I am satisfied, however, that the position advanced by the Plaintiff that she is permanently disabled from any gainful employment is not necessarily borne out by the evidence. Indeed, one of the doctors called by the Plaintiff, Dr. Majaess, was, at least on one occasion, apparently led to believe the accident resulted from the Plaintiff being struck by a motorized vehicle, that there had been no previous history of spine problems and that the lower back pain surfaced within 7-10 days of the incident. In his report of August 3rd, 2001, rather than suggesting any permanent disability, he concluded:

Effect of the Accident on Her Present Condition

¶ 12      In an earlier letter of August 6th, 1999, to the then Plaintiff's counsel, Dr. Majaess outlined his diagnosis of the injuries sustained by Ms. Warner, all of which he traced back to the accident or to compensatory straining caused by the injuries suffered in the accident. It was noted by counsel for the Defendants that Dr. Majaess was not then aware Ms. Warner had reported to Dr. Seetharamdoo complaints about her back approximately a month prior to the accident, and that he understood, from her description of the accident, it involved a motorized vehicle and that the complaints of the lower back pain had not surfaced within 7-10 days of the incident. Although he acknowledged on cross-examination it was important for him to have been provided with a complete and accurate past medical history, I am equally satisfied his conclusions on the causes of her injuries, as she reported in 1999, are consistent with the findings made by Dr. Seetharamdoo and, on the balance of probabilities, these complaints relate to the injuries sustained in the accident. Although, as I have already indicated, I am satisfied Ms. Warner has on occasion exaggerated both the force and violence of the accident, as well as the effects of the accident on her condition, I am similarly equally satisfied she was injured in the accident.

¶ 13      Ms. Warner continued in her employment following the accident. Shortly after the accident she took in two foster children and in the Spring of 1997 took them, together with her two children, to Florida for a two week holiday. Although she said she was limited on what she could do during the holiday, it appears she was able to push her two year old child around in a stroller, while the other children went on rides. She may have visited a fair as well. In the Spring of 1998, she took her son to Cuba for two weeks, although again stating she was unable to be as active on this occasion as she might otherwise have been.

¶ 14      On her return from each of these trips, she continued in her employment, and in the summer of 1998, obtained a second job working part-time for the City of Halifax at a Bingo Hall doing accounting work. She indicated the reason for this second employment was to enable her to save money to purchase a home.

¶ 15      In April 1999 she again went to Cuba on a holiday, as she also did in 2000. She remarried in August 2001, and took a two week honeymoon to Cuba. In the summer of 1999 she took a secondment to work with the KOSOVO Refugees, which involved 7 days a week from 7:00 a.m. until 6:00 p.m. on occasion. In addition, there was occasional overtime and once she stayed overnight with the Refugees.

¶ 16      There was also evidence of shopping trips to Moncton, Prince Edward Island and to Maine. In respect to the latter, she was accompanied by her mother, her daughter and her aunt and there was some evidence to indicate she had done all the driving, although her daughter, while not directly recalling, assumed the driving would have been shared. She also reactivated herself at St. Mary's University and began taking courses, and in the Fall of 2000 reactivated herself at Mount St. Vincent University and took a further course.

¶ 17      During this period she continued to work, and although having difficulty with some of her supervisors, appears to have maintained her regular work schedule. The exhibits, however, indicate she had difficulty in keeping up with her work. An accommodation was made in her work requirements which eventually led to her becoming a full time receptionist at the Nova Scotia Advisory Council on the Status of Women. Even there, she testified, she was unable to fulfill the complete job description and had to rely on the assistance of other employees in performing some aspects of her work.

¶ 18      Dr. Seetharamdoo testified that by June 2001 he was considering recommending Ms. Warner take time off from work. It appears he was considering having her take time off to recover and to enable her to pursue an adequate treatment program, rather than suggesting she was then permanently disabled from any future gainful employment.

¶ 19      Dr. Heitzner, in the summary to his report, concludes:

¶ 20      I am satisfied Ms. Warner continues to suffer pain and functional limitations, although, as suggested by Dr. Heitzner, she is capable of a greater level of activity and functioning. As noted by counsel for the Defendants, in his post-trial submission, Ms. Warner was certainly able to attend Court and to sit for prolonged periods without any "obvious" distress. Whether, as suggested by counsel for the Plaintiff, and reflected in the evidence of some of the witnesses called by the Plaintiff, she was able to mask her distress and discomfort is, of course, a possibility. Nevertheless, she sat for extended periods both in the witness box and as an observer during portions, at least, of the remaining testimony given at this trial.

Causation

¶ 21      Recognizing Ms. Warner is, at least to some extent, disabled with a loss of function and capability, there remains the question whether it was the accident that is the cause of her present limitations. The Defendants, both at trial and in the post-trial submission, advance a number of events both pre-dating and following the accident that it says are the causes of her present pain and suffering and accompanying functional limitations.

A.   1992 Motor Vehicle Accident

¶ 22      In May 1992, Ms. Warner was involved in a motor vehicle accident when her vehicle was struck from behind. Dr. Seetharamdoo's report of October 13, 1992 notes she "suffered a severe flexion-extension injury to the spine". Dr. Seetharamdoo also noted she had sustained a soft tissue injury to her knees and chest and was exhibiting left arm paraphysis and diminished range of movement and spasm of the cervical spine. In a report of November 3, 1992, Dr. Evelyn Sutton, a rheumatologist stated that from information provided by Ms. Warner, she understood that while travelling to Dartmouth on the MacKay Bridge she was at a full stop when she was hit from behind by another vehicle, travelling, by her estimate, 75 kms per hour.

¶ 23      At the beginning of her report she commented that Ms. Warner was not particularly keen on being seen and her history was difficult to obtain and was "somewhat like pulling teeth". She commented that "on examination she was very non-compliant and any requests were met with heavy sighs, eye rolling and certainly with less than optimal effort. When questioned about her reaction, she informed Ms. Warner it "bugged her" to be here; that she hated "these things" and the only reason she was here was because her family doctor had told her she had to come.

¶ 24      In concluding, Dr. Sutton indicated as her impression of Ms. Warner:

¶ 25      Although I am satisfied, on the evidence of Dr. Seetharamdoo, as well as various of the medical reports and documents entered by agreement of counsel, that Ms. Warner had recovered from the accident of 1992, the attitude noted by Dr. Sutton appears to have re-surfaced following the accident.

B.   Robbery and Assault - June 1994

¶ 26      In June 1994, Ms. Warner suffered injury to her nose, to her left eye and a cut lip when she was pulled out of her car and thrown to the ground. Her car was then stolen.

¶ 27      As noted by her counsel, on cross-examination, she said she had suffered a severely bruised left eye and nose in the assault and was "traumatized, depressed and nervous", "for a short period of time".

¶ 28      I am satisfied this event has little or no relevance in assessing Ms. Warner's present condition, including her functional limitations.

C.   Pre-existing Degenerative Disc Disease

¶ 29      Ms. Warner attended for an x-ray at the Cobequid Multi-Service Centre on April 9, 1997. The radiologist's report, in respect to her lumbar spine, noted as follows:

¶ 30      In respect to the degenerative disc changes noted in the April 1997 x-ray, Dr. Seetharamdoo indicated 30 of 100 patients he sees have such a degeneration even though they are often asymptomatic. He did agree, however, that in later years, some complain of back pain and this may be brought on, with or without, some additional trauma. There is, therefore, in respect to Ms. Warner, the possibility her degenerative disc could, in time, have resulted in lower back pain, whether or not there had been other trauma, including whether or not there had been the accident.

¶ 31      Although the evidence of the pre-existing degenerative disc changes is relevant in that they may have affected her recovery, or lack thereof, from the effects of her injuries, they were not the cause of her present disability. The evidence may also be relevant in assessing the possibility, that absent the accident, she may, in time, have become partially or totally disabled.

D.   Prior complaints of lower back pain.

¶ 32      The ongoing chart maintained by Dr. Seetharamdoo, with respect to Ms. Warner, records for October 18, 1996 "Cervical spine pain. Tender spinal joints."

¶ 33      On examination about this reference, Dr. Seetharamdoo indicated Ms. Warner complained of pain in the neck and pain "up and down the vertebral column". On cross-examination, he elaborated by adding the pain extended from the top of the neck "all the way down the back". Dr. Majaess, on being asked about the reference to the spinal pain reported in the chart maintained by Dr. Seetharamdoo, stated he had not been aware of this. He also added that the reference to pain up and down her vertical column was not very specific in describing the description and location of the pain itself.

E.   Escalator Incident

¶ 34      In October 2000, apparently while attending a university course, Ms. Warner was injured when her foot caught in an escalator at the World Trade and Convention Centre. Dr. Seetharamdoo said he saw her a week after the incident, and that she had a swollen and painful foot, with a one inch laceration on the outside of the ankle. He apparently saw her twice more in relation to this injury, and there was residual swelling for one or two weeks.

¶ 35      There is nothing in the evidence suggesting any connection between Ms. Warner's present functional limitation and the injuries she suffered from this accident.

F.   The Fall into the Air Duct

¶ 36      In June 2001, the Plaintiff was at home, apparently inspecting carpeting that had been replaced while she was at work. As she was inspecting the work, her left leg fell down the cold air return duct, the cover of which had not been replaced. Her left leg apparently fell down the duct "as far as it could go" and on the evidence it appears skin and muscle on her leg was "ripped", healing however within 14 days. Dr. Seetharamdoo, in a report dated September 6, 2001, addressed to Canada Life Assurance Company, noted she:

adding:

¶ 37      Ms. Warner has not returned to her work, or any other gainful employment since this incident. The Plaintiff relies on the evidence of Dr. Seetharamdoo to the effect it was about this time he was considering recommending she take time off from work and in his report to the Canada Life Assurance Company, he commented that Dr. Majaess had made a similar suggestion in stating she was unemployable as at September 2001. Dr. Seetharamdoo traced her unemployability to the effects of the accident rather than the air duct fall, noting, in respect to Dr. Majaess:

¶ 38      Noteworthy, is that neither Dr. Majaess nor Dr. Seetharamdoo were suggesting Ms. Warner was permanently disabled from gainful employment but rather were only suggesting she take a period of months off work. Dr. Majaess expressed the hope this:

¶ 39      It appears that rather than anticipating a permanent retirement from work, each were suggesting a period of months off work to enable Ms. Warner to recover from the combination of the injuries she had sustained, presumably in both the accident and the air duct fall, although particularly Dr. Seetharamdoo, in his report to the Canada Life Assurance Company, sought to trace her then present functional limitations to only the accident. The Defendants suggest, on the other hand, that to the extent she is incapacitated from work, it is traceable to the air duct fall, rather than to the accident, commenting it was only following the incident of June 2001 that she ceased working. The Defendants refer to the report of Dr. Heitzner who expressed the opinion she would still be working if not for the fall into the air return duct. Dr. Heitzner in stating: "It was this injury to her left thigh that caused her to stop working," testified how the mechanism of her left leg falling into the air duct would have adversely affected her low back. On further examination, he acknowledged he was not aware of any reports suggesting Ms. Warner had complained of any increase in her low back pain following the air duct incident.

¶ 40      The Defendants, as noted earlier, suggest that since some of the Plaintiff's doctors, and in particular noting Dr. Majaess, relied on "erroneous information" their conclusion on causation should not be accepted. In their submission, the Court should conclude the present limitations and disabilities experienced by Ms. Warner were the result of the air duct fall, rather than the accident. In this regard, counsel references the decision of the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458, at pp. 446-447 where Justice Major, writing for the Court, at para 13-17, outlines some general principles relating to the issue of causation:

¶ 41      However, at paras 18-20 Justice Major adds a further relevant observation, in determining the degree of responsibility to be borne by the Defendants for the Plaintiff's injuries and financial loss:

¶ 42      The Defendants, in their brief, suggest the Plaintiff has not met the onus, citing Justice Osborne in Sparks-Morgan v. Webb (1999), 178 Nfld. & P.E.I.R. 237, 1999 Carswell Nfld. 183 at para 240, affirmed at [2002] N.J. No. 241, 2002 CarswellNfld 242 (Nfld. C.A.):

¶ 43      The Defendants continue that the Plaintiff has failed to meet this burden, noting, once again, that in the case of Doctors Majaess and Colwell, they were not apprised of information which, on their evidence, they acknowledge, would have been relevant to their determinations. Defence counsel refers to the decision of the New Brunswick Queen's Bench in Haley v. Reade (2000), 228 N.B.R. (2d) 359; 2000 CarswellNB 355 (N.B.Q.B.) where Justice Creaghan at para 59 commented:

¶ 44      Counsel also notes the decision of the New Brunswick Queens Bench in Jones v. Constable, [2002] N.B.J. No. 270, 2000 CarswellNB 271; affirmed at (2003) 257 NBR (2d) 90; 2003 CarswellNB 128 which he suggests has circumstances similar to the present case. The Defendants have argued the pain experienced by the Plaintiff arose from factors not directly connected to the incident, citing his previous medical history, including, among other things, a prior accident, and a pre-existing degenerative disc disease. Again, reference is made by the Court to the work history, which was described as "curious" in that the Plaintiff had continued to work full time following the accident, with only a few days off now and then, with his work week later cut back progressively. The Court noted that "one would expect symptoms to generally decrease over time, particularly with the treatment he was getting, rather, the opposite seemed to have happened". At para 152-153, the Court observed:

¶ 45      The comments noted from the decision of the New Brunswick Queens Bench in Jones v. Constable, supra, are not, in our view, applicable in the circumstances of Ms. Warner. Although the medical doctors who testified on her behalf, effectively acknowledged that they were not provided with all the relevant information in respect to both her medical background and the circumstances of the accident, their view as to the cause of her present functional limitations, together with the pain and suffering now being experienced by Ms. Warner, did not alter. Nevertheless, the apparent minimization by Ms. Warner of these other factors and her exaggerated description of the events of the accident, are matters to be considered in both assessing her present condition and in tracing her present pain and suffering and functional limitations to the accident, rather than to any of the other trauma or events that have happened to her.

¶ 46      In concluding, at least on a balance of probabilities, and on the basis of the evidence of Ms. Warner, her mother, and the medical professionals that have testified on her behalf, that there is a "substantial connection" between her present condition and the accident, I am reinforced in this conclusion by the evidence in the so-called "independent medical examination report" prepared on behalf of the Defendants by Dr. John Heitzner. Dr. Heitzner , on cross-examination, stated that the cause of her stopping work was the air duct injury, but acknowledged the accident was a "partial contributory cause" as well.

¶ 47      The Defendants suggest that if, contrary to its submission, it is determined the Plaintiff's present condition was caused or substantially caused by the accident, that the doctrine of the "crumbling skull"should apply and the Court should determine the accident caused or materially contributed to the "exasperation of a pre-existing condition, in particular, her prior shoulder injury and pre-existing degenerative disc disease".

¶ 48      In respect to the suggestion the prior shoulder injury had a substantial effect on her condition following the accident, there is in our view, no convincing substantiating evidence, and indeed the evidence of Dr. Seetharamdoo as well as medical reports filed by agreement of counsel from other doctors who treated Ms. Warner, are to the contrary There is however, the evidence of the pre-existing degenerative disc disease that was noted in the report of the lumbar spine x-ray of April 1997.

¶ 49      In respect to this issue, the Defendants reference again the decision in Athey v. Leonati, supra, noting paras 32 and 35:

¶ 50      However, at para 36, Justice Major continues:

¶ 51      In the present circumstances, the evidence of Dr. Majaess, in respect to the question of the pre-existing degenerative changes and their effect, or potential affect on Ms. Warner was that recover may be more difficult, and take longer, for a person with such degenerative changes. He also suggested such a person may have more residual effects because of the pre-accident existence of these changes. He, however, stated his opinion that although her degenerative disc disease may have made it more difficult for her to deal with the effects of the accident, that it was the accident, not the degenerative disc changes that was the cause of the injury to her lower back.

¶ 52      Consequently the reduction of the Plaintiff's damages to 75% of assessment that occurred in Archibald v. Woodbury (1998), 167 N.S.R. (2d) 271, is not here appropriate. Similarly, the circumstances in Day v. Rice , [1999] N.S.J. No. 254, 1999 CarswellNS 468, affirmed at, [2000] N.S.J. No. 14, 2000 CarswellNS 16; 2000 NSCA 12, would not here be applicable as well. Although the Plaintiff has suffered a multitude of trauma, particularly since the accident, and had a pre-existing degenerative disc disease, I am satisfied the accident was a contributory cause and in fact, on the evidence as a whole, I am satisfied it was a substantial contributory cause, to her present condition, including both her functional limitations and her pain and suffering.

¶ 53      The Defendants also raise the apparent delay in the onset of her symptoms as a factor to be considered in assessing her present condition and whether in fact the lower back pain she now alleges was the result of this accident. The Defendants also note the Plaintiff, prior to the accident, had a number of health issues including asthma, bowel problem, depression and sleep difficulty.

¶ 54      In respect to the delay in the report of the onset of low back pain, it appears it was not until months later she reported, at least to the medical professionals on whom she attended, the low back pain. The statement in some reports, particularly Dr. Majaess, that the low back pain had onset 7 - 10 days following the accident does not appear to be consistent with the evidence. Dr. Colwell, in his report of February 26, 1997, after reviewing his understanding of the circumstances of the accident and the various complaints made by Ms. Warner following the accident, states:

¶ 55      Dr. Seetharamdoo acknowledged it was not until March 1997 that she complained to him of pain in her lower back. He said he found tenderness in the right lumbar region on examination. He also noted the possibility the other complaints, which were more severe immediately following the accident, may have been focused on by Ms. Warner, rather than the back pain, particularly if it was not as significant at that time.

¶ 56      On the evidence, it was not until late February or early March that any of the professionals noted a reference to low back pain as one of the complaints by Ms. Warner. However, apart from counsel for the Defendants suggesting the absence of earlier complaints is a factor to be considered on whether the accident caused the low back pain, it is noteworthy there was no evidence of an incident or event, occurring between the date of the accident and date of the report of the low back pain, suggested as being causative of this complaint. Speculation that the severity of the other complaints had resulted in the Plaintiff minimizing or effectively ignoring the low back pain immediately following the accident, are as valid as other speculation that either another event had occurred which caused the low back pain, or that it is non-existent and is a subsequent fabric of Ms. Warner's imagination. I am satisfied, on a balance of probabilities, Ms. Warner does suffer from low back pain, and it is attributable to the accident.

¶ 57      In respect to her health and other issues, I am satisfied none are significantly causative of her present physical limitations and pain and suffering. On the evidence, it appears the effects of the 1992 motor vehicle accident had resolved well before the present accident, as had the bowel concerns, and there was nothing in the evidence in respect to the asthma, depression or sleep difficulty, which were suggestive as the cause of any of her present limitations and difficulties. Each were apparently under control and notwithstanding their existence, she was able to work full time at her occupation.

¶ 58      In assessing her present condition, relevant is evidence as to what occurred in both her work and non-work related activities particularly between 1996 and June of 2001 as well as following. Ms. Warner has testified that although she continued to work following the accident, she continually got "worse and worse every year". This evidence is mirrored in the evidence of her family members who testified. The evidence describes a "steady decline" and a "slow degradation" in her condition. Notwithstanding the submission of the Defendants, to the effect the evidence does not establish such a gradual decline, I am satisfied, although perhaps not occurring as rapidly as testified to by the Plaintiff and her family, that there was such a decline. It is reflected in the various work accommodations made by her employer between the accident and her ceasing work in June 2001. Certainly, as noted earlier, her undertaking responsibility for two foster children, in addition to her own, and taking the children to Florida, and the number of trips she took to Cuba, as well as shopping trips both in Canada and in the United States indicate she was able to carry on, notwithstanding whatever pain and suffering and limitations she was enduring. She was able, for a period of time, to undertake a second job and in April 1999, accepted an appointment to an Advisory Board which required further involvement by herself. On the other hand, it is clear that accommodations were made in her employment, and indeed, her employer arranged for a functional capacity assessment in June 2000. This functional assessment concluded that "Ms. Murphy's work day tolerance is estimated at between 4-5 hours. This projection has been based on her current demonstrated tolerance for sitting, walking, and standing during assessment." Noteworthy, however, is the acknowledgment by Tom Stanley, a registered physiotherapist, who was involved in the assessment, that at the time Ms. Warner was working a full schedule at her employment. In this regard, the report authored by Mr. Stanely and Anita Mountain, a registered occupational therapist, continues:

¶ 59      As indicated earlier, I am satisfied Ms. Warner's present functional limitations, disabilities and injuries are substantially connected to the accident, although the incident with the cold air duct return exacerbated her condition and was the immediate cause for her ceasing to be employed.

¶ 60      Nevertheless, I am also satisfied it is likely the gradual decline in her condition, as experienced following the accident, even if not as severe and rapid as suggested by the Plaintiff in her evidence, would likely have, in due course, resulted in her being unable to continue in her employment, and likely would have prevented her from engaging in any full time gainful employment. The evidence of the degree of accommodation made by her employer is indicative of the decline in Ms. Warner's condition , and all of this preceded the cold air duct return accident. Although, it was suggested she take a period of time off work to enable her to recover and to access adequate treatment with a further prognosis as to her condition to be subsequently made, I am not satisfied, on a balance of probabilities, she would have failed to recover sufficiently so as not to be able to return to some form of gainful employment, perhaps even her previous occupation, for at least some period of time. Having regard to the evidence of Dr. Heitzner, there is the suggestion that even as of the date of his examination, she was capable of a greater level of activity and functioning.

¶ 61      Having all of this in mind, it is necessary to assess her damages for pain and suffering, and for past and future loss of income as well as the other heads of damage claimed.

Actuarial Report

¶ 62      The Plaintiff retained Jessie Shaw Gmeiner, of Gmeiner Actuarial Services Inc., to prepare a report as to the present value of the past and future financial loss sustained by Ms. Warner as a result of the accident. In her evidence, as well as her report, Ms. Gmeiner indicates she has taken into account certain decremental assumptions, such as mortality, retirement age, unemployment contingency, disability contingency, together with various economic assumptions. However, because Ms. Warner was employed on a full-time basis with the Province of Nova Scotia, since July 24, 1989, she declined to apply any deduction for the contingency of unemployment, but did make an allowance for the possibility she may have become disabled in any event. At issue, is whether considering the many contingencies related to Ms. Warner, the use of the actuarial report is of any assistance in determining the present value of her past and future financial loss resulting from this accident. The report assumes she will not be capable of pursing gainful employment, although provision is made in the calculations for an offset in the event it is decided she is capable of some level of gainful employment in the future.

¶ 63      The Defendants refer to the decision of the Nova Scotia Court of Appeal in Woods v. Hubley (1995), 146 N.S.R. (2d) 97 at p. 121; 1995 CarswellNS 273 at para 109 - 110:

¶ 64      Also relevant in this regard, and referred in the briefs of both counsel, are the comments of Chief Justice MacKeigan in Whitehead v. Misner (1982), 51 N.S.R. (2d) 111; 1982 CarswellNS 158, at para 57:

¶ 65      The Defendants refer to the conclusion of Justice Davison in Poirier v. Dyer (1999), 91 N.S.R.(2d) 119 where, having held that there was insufficient evidence as to what the 17 year old male plaintiff could and could not do in the future, he stated the actuarial evidence was of no assistance because of the uncertainties. At para 19 he held:

¶ 66      In the present case, there is speculation, and therefore contingencies, concerning, the effect of her pre-existing degenerative disc, the accident and its effect on her employment having regard to her continuing to work following the accident, although with accommodation by her employer, the effect of the June 2001 accident after which she no longer returned to work, the observations by Dr. Heitzner that she is capable of a greater level of activity and functioning and, if not for the air duct fall, would still be working.

¶ 67      Clearly the accident substantially affected her employability and may indeed have led, in due course, to her no longer being able to engage in any gainful full time work, whether in her previous occupation or some other less stressful occupation. Considering the sedentary nature of her work, it is perhaps unlikely, if she had become incapable of performing this work, at least on the accommodation basis arranged by her employer, that there would have been other work available she could perform. No evidence was called to indicate any other work which would have been less stressful considering her injuries, and I make no determination that such work exists or would have been available to her. However, I am satisfied, on a balance of probabilities, her ceasing to work in June 2001 was the direct result of the fall in the air duct. Whether, as suggested by Doctors Seetharamdoo and Majaess, a period off work to recover and to obtain adequate treatment would have been sufficient for her to return to work is, whether considered affirmatively or negatively, speculative. In Poirier v. Dyer, supra, Justice Davison at para. 28 indicated:

¶ 68     

In Leddicote v. Nova Scotia (Attorney General), [2002] N.S.J. No. 160, 2002 CarswellNS 135, at paras. 55-58, Justice Cromwell made the following observations:

¶ 69      At para, 76 Justice Cromwell also notes:

¶ 70      In the present circumstance, in reference to her employment, there is the evidence of memoranda in her employment file indicating some dissatisfaction in her work, including references to absenteeism from work. On the other hand, there are letters of commendation from both third parties with whom she has, on behalf of her employer, dealt, as well as from others, including the then Premier of the Province.

¶ 71      It is the number of contingencies both in respect to what she may be able to do, the effect of the accident on her employability having regard to the fact that for some five years she continued to be employed, the effect of the 2001accident, as well as the other events which I have reviewed earlier, that makes the use of an actuarial report of little assistance in determining the present value of her financial loss, as well as her loss of future income, and her loss of past income. I am satisfied Ms. Warner's opportunities for employment have been severely curtailed and may even have been totally eliminated by the accident. However, whether her cessation of employment would have incurred in June 2001, or later, or even at all, before reaching retirement is problematic and certainly not of a sufficient degree of certainty so as to apply any mathematical calculation to measure the financial loss. It is likely because of her gradual decline, reflected not only in the evidence of Ms. Warner and her family, but also by the substantial accommodation made by her employer in her employment, and in the various assessments of partial disability noted in the documentary evidence filed at this trial, that a real possibility exists she would have actually had to retire prior to when she would have otherwise. The conclusion that the ongoing effects on her injuries, and continued degradation in her condition, would have caused here to prematurely retire is obviously speculative, but nevertheless a likely future possibility.

¶ 72      Obviously these are matters that some would view as approaching guesswork. In this regard, I would refer to the decision of the Supreme Court of Canada in Penvidic Contracting Co. v. International Nickel Company of Canada Limited, [1976] 1 S.C.R. 267 where, in the context of a claim for damages for breach of contract, Justice Spence at pp. 279-280, in the judgment of the Court, made the following comments:

¶ 73      Although, as noted, in the context of awarding damages for breach of contract, the comments about a difficulty in ascertaining the amount of the loss being no reason for not giving substantial damages are equally applicable to a claim founded in tort.

¶ 74      The Plaintiff is entitled to substantial damages for the injuries which she has suffered and which have curtailed, if not eliminated, her ability to engage in gainful employment. Both in respect to her loss of past income and the claim for future loss of income, the contingencies and uncertainties that exist in the evidence, make the use of actuarial calculations inappropriate, notwithstanding the result, as noted by Justice Spence in the decision of Justice Davis in Wood v. Grand Valley Railway Company, (1915) 51 S.C.R. 283, at p. 289, may make the amount awarded a "matter of guess work".

¶ 75      As noted earlier, having regard to the evidence of her gradual decline and degradation following the accident, I am satisfied that likely for temporary periods at first, and perhaps later permanently, she would have been unable to continue in her existing employment and may very well have found herself unable, at any time, to engage in any gainful employment. Since there is no specific indication of when either, or any of these events would have occurred, I recognize that in assessing these damages, both for past loss of income and for future financial loss, my conclusions are to some extent, "a matter of guess work". However, I have considered the evidence presented both by the Plaintiffs and the Defendants, including both the Plaintiff herself, her friend Lise Henri, her mother and father, and daughter, as well as her professionals, both in respect to their oral testimony and the reports filed by these professionals, as well as medical records filed with the consent of counsel without the necessity of calling the authors, together with the evidence presented by the Defendants, including Dr. Heitzner.

GENERAL DAMAGES

¶ 76      In his pre-trial Memorandum and Claim's summary, the Plaintiff suggests the sum of $95,000.00 for general damages while, in his post trial submission, the Defence counsel suggests an appropriate general damage amount would be $25,000.00.

¶ 77      In respect to the latter, counsel refers to the often cited authority of the Nova Scotia Court of Appeal, in Smith v. Stubbard (1992), 117 N.S.R. (2d) 118; 1992 CarswellNS 250, where Justice Chipman, in the majority reasons, at para. 33:

¶ 78      The Defendants continue by suggesting the Plaintiff sustained "a mild to moderate soft tissue injury". The Defendants also note that in the years following this incident, the Plaintiff was able to continue to work up until the air duct incident and during this period travelled extensively. Counsel also references the evidence of a pre-existing condition in both her left shoulder and her lumbar spine.

¶ 79      On the other hand, the plaintiff citing Binder v. Mardo Construction Ltd. [1994] N.S.J. No. 17; Lawrence v. Bateman [1996] N.S.J. No. 580; Marinelli v. Keigan [1998] N.S.J. No. 155; Woods v. Hubley [1995] N.S.J. No. 459; and Cashen v. Dovovan, [1999] N.S.J. No. 54, suggests the injury at the Bulk Barn "has totally disabled her from employment and substantially disables her from former social and family activities as well as work around the home."

¶ 80      Although finding that the Plaintiff was and is proned to exaggeration, I am also satisfied the injuries sustained in 1996 were substantially more severe and functionally more limiting than as suggested by Defence counsel. I am also satisfied that none of the pre-accident trauma and health problems experienced by  Ms. Warner had any substantial dehabilitating effect on her condition. It was the accident that is the principal cause of the pain and suffering and functional limitations she experienced in the ensuing years. The fact the violence of the accident may not have been as substantial as suggested by both Ms. Warner and her mother does not detract from the fact it was the cause of her injuries.

¶ 81      Although, as noted by Defence counsel, Ms. Warner was able to carry on with her employment, and to travel extensively in the subsequent years, it is clear she was only able to do so with increasing difficulty. Her employer appears to have made extensive efforts to provide accommodation in her employment responsibilities, and the evidence is consistent, that her participation in household and social activities became more infrequent and with more difficulty, as time passed.

¶ 82      I therefore award the sum of $75,000.00 on account of general damages for pain and suffering.

LOSS OF INCOME

(a)  Past Loss of Income

¶ 83      In her report, the actuary, Jessie Gmeiner, calculated past loss of income in the amount of $82,446.00 on the basis that up until and including August 1, 2001, she was paid in full and from August 2, 2001 she was paid 75% of her salary for a period of 12 weeks. Ms. Gmeiner calculated past loss income at 25% of the earnings for the period of August 2, 2001 to October 31, 2001 and then 100% thereafter.

¶ 84      As noted earlier, Dr. Seetharamdoo indicated in his evidence that when the air duct fall occurred, he was already contemplating recommending she take a period of time off work. In fact, in a report to her long term disability plan Trust Fund of August 23, 2001, he stated the date she should be able to return to work was then unknown. His report, however, did not indicate that in his opinion, at that time, she was permanently disabled from gainful employment. Along the same lines Dr. Majaess who initially saw Ms. Warner in April 1998, in a subsequent report dated August 3, 200, following the air duct incident, made the recommendations previously referenced, that she take a period of 3 - 6 months to assist her recovery and enable her to access an adequate treatment program.

¶ 85      I am satisfied, notwithstanding the intervention of the air duct fall, it is likely Ms. Warner would have had some period of time off work, and absent any evidence she would have been compensated by her employer during this period, I am prepared to award her some period of past lost income. However, I am equally satisfied the air duct fall played a substantial role in the permanency of her retirement from gainful employment. Clearly the doctors who were then seeing her from time to time, Dr. Seetharamdoo and Dr. Majaess, both were recommending non permanent time off to enable her to obtain further treatment and to recover more completely from her injuries. Although each were suggesting time off with subsequent evaluation and assessment to be carried out, there is no indication that either believed at the time that she would be permanently disabled from gainful employment. I recognize, however, the uncertainties associated with prognosticating the period of time required for a person to recover sufficiently to be able to return to work, and that in fact, even, absent the air duct fall, the possibility Ms. Warner would never have returned to work. Admittedly speculative, it nevertheless is one of the various possibilities that might have occurred even absent the air duct incident.

¶ 86      On the other hand, having regard to the opinion of Dr. Heitzner, that apart from the trauma and effects of the air duct fall, she would still be working, I am equally satisfied it would be inappropriate to compensate Ms. Warner for the full period she has been off work to the date of trial.

¶ 87      On a balance of probabilities, I am satisfied that absent the air duct incident, she would have been off work for some period of time, but not permanently until the date of trial. I therefore allow past lost income equivalent to one year for the period commencing November 1st, 2001 to and including October 31, 2002.

(B)  Loss of Future Earning Capacity

¶ 88      During the period following the Bulk Barn incident to and including the air duct incident, Ms. Warner was able to continue in her employment, but at the same time underwent numerous medical treatments and job accommodations by her employer. The evidence is that she received numerous injections, including some cortisone injections, intended to increase or at least maintain her functional status. These are indicative of the extent to which she was prepared to undergo medical treatments in order to continue in her employment, modified as it was. Having already determined that apart from the air duct incident, it is more probable that Ms. Warner would have returned to work, at some time prior to the commencement of this trial, it is obvious she was also not immediately permanently disabled from future gainful employment by this accident. However, on the other hand, it is clear that prior to the air duct fall, there was a gradual degradation in her physical abilities and related emotional well being such that it is unlikely she would have been able to continue to any normal retirement period, that would have enabled her to receive full retirement benefits. Again, having regard to the uncertainties created by the air duct fall, the calculation of the date on which she would likely have retired, because of her injuries from the accident, is speculative and, in the words of Justice Spence in Penvidict supra, would be a matter of "guesswork". Having determined Ms. Warner would have been required, because of her disabling injuries, to retire prior to when she would otherwise retire, although not necessarily immediately, I am satisfied she suffered a future financial loss because of the incident, and is entitled to some compensation.

¶ 89      In awarding an amount for loss of future income, more accurately described in the present circumstances as for a diminution of future earning capacity, I have taken into account the various related losses associated with a loss of future income or future earning capacity. In this regard, there is the evidence, noted in Ms. Gmeiner's report, of a loss of a public service award, and the diminution or loss of future pension values.

¶ 90      Taking into account the various losses associated with loss of future income or loss of future earning capacity, I award the Plaintiff the sum of $125,000.00.

(C)  Cost of future care and loss of valuable services

¶ 91      There is a greater certainty Ms. Warner will continue to require, at an increasing rate, prescriptions and medical aids, and household and home assistance, sometimes referred to as "future valuable services and future care ". Although the likelihood of this loss is greater than perhaps the likelihood she would have been disabled from future gainful employment, nevertheless, the various uncertainties that militate against the use of mathematical calculations to determine the loss of future income, apply equally against the use of a similar mathematical calculation to determine the present value of the loss of "future valuable services and future care costs". It is likely that absent the air duct fall, there would have been such losses, although the certainty of the losses and the extent of the financial repercussions, are obviously greater in view of the air duct incident.

¶ 92      The Defendants in suggesting the claim for valuable services should be rejected reference the decision of the Nova Scotia Court of Appeal in Leddicote v. Nova Scotia (Attorney General) supra, at paras 49-51:

¶ 93      The Defendants then suggest that following the accident, the Plaintiff remained capable of performing household tasks and was able to drive, grocery shop, do banking, have her hair done, sew, cook and make meals. There are also references made to her dusting, doing laundry and keeping her house neat and tidy. However, what is clear is that, over time, the Plaintiff's ability to do these tasks became more difficult and problematic. Although she drove, she drove less frequently, and apparently with more difficulty and although she did housework, she did less and less, and relied on others to do the more strenuous housework. Although she used to look after the exterior of her property, including lawn mowing in the summer and snow shovelling in the winter, over time she was no longer able to do these herself. There is sufficient evidence, in the present circumstances, to justify the awarding of a separate category for the loss of valuable services, unlike the determination by the Court of Appeal in Leddicote v. Nova Scotia (Attorney General) supra. In this respect, I note the comments at para. 52:

¶ 94      The circumstances in Leddicote are quite dissimilar from those in the present. The degree of impairment of Ms. Warner's abilities is obviously much more extensive, both in respect to the level of her limitations, as well as to the prospects for these limitations to continue indefinitely into the future. I am satisfied this is one of those circumstances in which an award for loss of valuable services is appropriate, and award the Plaintiff the sum of $30,000.00.

Special Damages

¶ 95      The Defendants in their post-trial submission indicate that some of the special damages are not properly claimed and should therefore be disallowed:

¶ 96      The Plaintiff has claimed the sum of $3,580.21 for parking, physiotherapy, orthotic footware, prescriptions, a blue cross summary, a claim history report, mileage and a therapeutic chair.

¶ 97      With respect to the orthotic footware I note that Dr. Majaess, in his report of August 4th, 1999, indicated he prescribed a pair of shoe inserts "to correct her feet pronation and for repetition of injection". These treatments were obviously related to her disturbed and non-restorative sleep, and I am satisfied they are sufficiently connected to the accident that the Plaintiff is entitled to compensation for the associated costs. The issue of high blood pressure, on the other hand, is not so clearly connected and therefore the prescriptions in respect to treating the high blood pressure are not allowed. However, I am satisfied, on a balance of probabilities, to allow the Plaintiff's claim for travel expenses, to and from appointments since, if not all, at least the substantial majority of the trips to see Dr. Seetharamdoo were related to treating the effects of the injuries caused in the accident. If, indeed, some were more related to other complaints, and unrelated to the injuries from the accident, they are in the circumstances inconsequential, and I am satisfied to award the full amount claimed for mileage on behalf of Ms. Warner.

Mitigation

¶ 98      The Defendants suggest there should be a deduction for the failure of the Plaintiff to mitigate her damages. Counsel, in his post-hearing submission, refers to the comments of Justice Freeman, in White v. Slawter, supra, at paras. 88 and 90, to which I would add his comments at para. 89 as well:

¶ 99      It is clear that during the years following the accident, Ms. Warner failed to pursue many of the recommendations, particularly those relating to her undergoing physiotherapy. In evidence, it was indicated that apart from water therapy, she found it of little assistance and for this as well as financial reasons, had not continued with the prescribed course of treatment. The Defendants also note she failed to seek psychological counselling, as recommended. In his report, Dr. Heitzner made the following observation:

¶ 100      In the circumstances, I am not satisfied there was medical evidence that substantial improvement could be expected if she had followed more diligently the medical advice and therefore I am not satisfied that this is an appropriate case to discount the award of damages on account of a failure to mitigate. I am satisfied, as noted, there were medical recommendations she failed to undergo. However, I am not satisfied the circumstances here warrant any deduction.

¶ 101      Judgment accordingly.

MacADAM J.

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