Ashe v. Werstiuk

2003BCSC0184 Citation: Ashe v. Werstiuk Date: 20030131 2003 BCSC 184 Docket: 26897 Registry: Vernon

IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN:

COLLEEN ASHE

PLAINTIFF AND:

PETER WERSTIUK

DEFENDANT

REASONS FOR JUDGMENT

OF THE HONOURABLE MR. JUSTICE METZGER Counsel for the Plaintiff: Dennis K. Boon Counsel for the Defendant: Robert E. Ross Date and Place of Trial: September 30, 2002 and October 1-4, 2002 Kelowna, B.C.

BACKGROUND [1] The plaintiff, Colleen Ashe, born on January 6, 1949, was hit on the left knee with the bucket of a backhoe at about 6:30 p.m. on June 23, 2000, while crossing mid-block on Graham Street in Kelowna, British Columbia. [2] The defendant, Peter Werstiuk, born on September 19, 1928, was the driver of the 6,500 kilogram backhoe. Mr. Werstiuk states that he did not see Ms. Ashe until she was about six feet away. Visibility was good. Liability is denied.

LIABILITY 1. The Evidence [3] Graham Street, at the site of the accident, runs north and south and tees into Springfield Road. Graham Street is a paved two-lane residential street. Each lane is 12 feet wide divided by a single-solid yellow line. [4] There is a crosswalk where Graham Street meets Springfield Road. Ms. Ashe did not cross at the crosswalk. [5] Although Graham Street runs north and south for the purposes of this case, it actually runs east and west prior to curving in a capital "L" configuration into the north and south direction. [6] There was a seven-foot wide tow truck facing south toward Springfield Road, parked about one foot away from the west curb and near Springfield Road. Ms. Ashe crossed Graham Street from the rear of the stopped tow truck, as she was heading toward the bus stop on the east side of Graham Street. [7] Ms. Ashe stated that as she was walking north on the grass along the west side of the truck, she saw the backhoe come around the corner and proceed along Graham street toward her and Springfield Road. [8] Ms. Ashe testified that she stopped at the back of the tow truck at its east corner and looked at the backhoe driver as he was driving toward her. [9] Ms. Ashe believed she made eye contact with the driver and that he was slowing down by gearing down. Mr. Werstiuk said he did not make eye contact with Ms. Ashe, and that he did not slow or

gear down. I accept Mr. Werstiuk's evidence as Ms. Ashe was not certain about the eye contact. It would be difficult from her position on the road to determine what Mr. Werstiuk was doing inside the cab of the backhoe. [10] Mr. Werstiuk testified that he first saw Ms. Ashe when she was six feet in front of him. He was travelling at approximately 10 to 15 kilometres per hour just before the backhoe's bucket struck Ms. Ashe. At 12.5 kilometres per hour Mr. Werstiuk would be travelling at 11.39 feet per second. I have taken judicial notice of the conversion multiplier of .9113 because of the use of metric and imperial measurements throughout the trial. [11] Ms. Ashe stated she stepped out in front of the backhoe when it was 10 to 14 feet away. She said that she is a poor judge of distance. At 12 feet the backhoe would only have been one second away from striking her. I find that the backhoe was likely more than 12 feet away when Ms. Ashe started to cross the five feet to be crossed in her lane. [12] I am satisfied that Ms. Ashe was struck when she was over the centerline and less than two feet into the northbound lane. Mr. Werstiuk testified that his backhoe was seven feet wide at the bucket and he knew he would have to enter the oncoming lane to pass the parked tow truck safely. I accept that a small black car heading north in the other lane slowed to allow Ms. Ashe to cross the

street. It stopped when she was struck by the backhoe. [13] Mr. Werstiuk stated that he did not see the small black car until after the accident. He said that he did not see Ms. Ashe until she was six feet in front of the bucket of the backhoe. Mr. Werstiuk said he saw the parked tow truck when he rounded the corner and entered the straight, north-south, portion of Graham Street. I find that Mr. Werstiuk was likely further away than six feet when he initially saw Ms. Ashe, as he testified he stopped his vehicle only six feet from the point of impact. I note there is no evidence as to the distance needed to bring this size of backhoe to a full stop from 12.5 kilometres per hour. [14] Mr. Werstiuk gave no reason why he did not see, nor why he should not have seen, Ms. Ashe before he did. Mr. Werstiuk testified that his head was about eight feet above the surface of the road and that the large windshield offered a clear view of the road ahead. He testified there was nothing impeding his vision forward except for an exhaust pipe extending vertically from the front of the backhoe. He testified that although the backhoe was not equipped with a horn, the two four-way flashing yellow lights at the top corners of the cab were on and working. [15] I accept the evidence that Ms. Ashe had only one beer with her supper. She was wearing a light-coloured blouse, jeans and running shoes when

she walked across the road. Mr. Werstiuk believed Ms. Ashe saw him and was attempting to run away from the backhoe when she was struck. That observation is not consistent with any of the other evidence and I find that Mr. Werstiuk was mistaken on this point. [16] Mr. Werstiuk testified that the bucket of the backhoe was at least two feet over the centerline into the oncoming lane. I am satisfied that Ms. Ashe was struck by the backhoe when she was in the opposite lane of travel as her body, when on the ground, was over the centerline. There was no dispute that when struck by the backhoe Ms. Ashe fell into the bucket, and when both brakes were applied with full force she was then dumped out of the bucket onto the roadway. [17] I note that neither the passenger nor the driver of the small black car that stopped and helped Ms. Ashe was called to testify. I note that neither the passenger nor the driver of the tow truck was called to testify. The evidence was that the passenger in the tow truck was the friend to whom Ms. Ashe was delivering the requested Tylenol 3.

2. The Law [18] The Motor Vehicle Act, R.S.B.C. 1996, c. 318, provides as follows: 179 (2) A pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it is impracticable for the driver to yield the right of way. ... 180 When a pedestrian is crossing a highway at a point not in a crosswalk, the pedestrian must yield the right of way to a vehicle. 181 Despite sections 178, 179 and 180, a driver of a vehicle must (a) exercise due care to avoid colliding with a pedestrian who is on the highway, (b) give warning by sounding the horn of the vehicle when necessary, ... [19] Section 121 of the Act requires construction vehicles to drive with due regard for safety, having regard to all the circumstances. [20] Section 144 of the Act contains a prohibition against careless driving. A driver must drive with due care and attention, with reasonable consideration for other persons using the highway, and at a speed that is not excessive relative to the traffic conditions. [21] Section 155(1) reads: 155 (1) Despite anything in this Part, if a highway is marked with ... (c) one single line, broken or solid, the driver of a vehicle must drive the vehicle to the right of the line, except only when passing an overtaken vehicle. [22] Section 155(2) reads: (2) Subsection (1)(b)(i) and (c) do not apply if a driver is avoiding an obstruction

on the highway and first ascertains that the movement can be made with safety and without affecting the travel of any other vehicle. [23] Section 159 reads: 159 A driver of a vehicle must not drive to the left side of the roadway in overtaking and passing another vehicle unless the driver can do so in safety. [24] Section 160 reads: 160 A driver of a vehicle must not drive to or on the left side of the roadway, other than on a one way highway, unless the driver has a clear view of the roadway for a safe distance, having regard for all the circumstances. [25] In dealing with the question of rights of way between pedestrians and vehicles, the Court of Appeal in Cook v. Teh & Township of Richmond (1990), 45 B.C.L.R. (2d) 194 said this at pp. 230-4: Firstly, s. 181(1) and (2) does not constitute an exclusive code relating to rights of way between pedestrians and vehicles. They are not a substitute for the common law duty of care owed by pedestrians and drivers to exercise due care for their own safety and the safety of others. The law relating to this case is set out in B.C. Elec. Ry. v. Farrer, [1955] S.C.R. 757, [1955] 5 D.L.R. 161, where the judgment of Estey J. reads in part at pp. 762-63 as follows: ... Viscount Simon expressed the duty which rests upon a person to exercise care for his own safety when he stated: "But when contributory negligence is set up as a defence, its

existence does not depend on any duty owed by the injured party to the party sued and all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. Nance v. British Columbia Electric Railway Co. (1)." Legislative bodies have, for many years, been enacting provisions intended to facilitate and make safer the movement of pedestrians and vehicular traffic on the highways and public streets. The general rule is that these provisions and regulations are supplementary, or in addition, to the common law duty that rests upon all persons using the highways to exercise due care. Swartz Bros. Ltd. v. Wills [[1935] S.C.R. 628]; Royal Trust Co. v. Toronto Transportation Commssn. [[1935] S.C.R. 671]. In the latter case Mr. Justice Davis, with whom the majority of the Court agreed, stated at p. 674: "Generally speaking, a motorman on a street car is entitled to assume that a pedestrian or a motorist approaching the street car tracks will stop to permit the street car to pass by and there was in this case a statutory right of way in favour of the street car. But the existence of a right of way does not entitle the motorman on the street car to disregard an apparent danger that confronts him." These statements have been

cited with approval in a number of decisions of our court and whether or not a crosswalk is involved. [26] In the context of motor vehicle accidents, Mr. Justice Anderson in the Cook v. Teh, supra, decision says this at p. 206: Fourthly, the argument of counsel for the defendant is an attempt to revive the doctrine of "last clear chance" which has long since disappeared from the law of negligence. It was not open to the defendant to argue that, even though he was negligent and had created a situation of danger from which he could not extricate himself, he should be absolved from liability because if the plaintiff had kept a proper lookout the accident would not have happened. (at p. 206). [27] In his decision in Nelson (Public Trustee of) v. Shinske (1991), 62 B.C.L.R. (2d) 302, Mr. Justice Fraser undertook an extensive review of British Columbia trial court decisions and then summarized the cases as follows: I conclude that the law can be stated as follows: (1) Users of the streets are entitled to proceed upon the assumption that other users of the streets will observe traffic regulations; (2) The right to drive or walk on that assumption is not an absolute one; (3) There is no obligation, as one proceeds, to maintain special preparation for an unseen emergency or a mere possibility; (4) If, on the other hand, the possibility of the danger which in fact materialized is reasonably apparent, the failure to take precautions is negligence. (at p.

309) He further concluded that the duty of a motorist to take care is "...not something which is triggered by the happenstance of seeing the hazard but involves some duty to anticipate risk, depending on the circumstances". The principles set out above govern the situation here.

3. Was the Defendant Negligent? [28] The defendant, Mr. Werstiuk, a semi-retired and very experienced backhoe operator, admitted that he was probably tired after a full day's work. There was no evidence that his medication affected his driving abilities. [29] He offered no explanation as to why he did not see Ms. Ashe until she was six feet in front of him. He saw the tow truck. I am satisfied that the tow truck was not a distraction as there was nothing unusual about a parked vehicle in that particular place. The weather was sunny, clear and dry. Mr. Werstiuk told the court that he had concluded that he had to go into the oncoming lane to pass the parked tow truck. He did not see the small black car in the oncoming lane until after the accident. [30] I find that Mr. Werstiuk, while driving a construction vehicle, breached his duty to exercise due care to avoid colliding with a pedestrian who was on the highway. It is obvious that if he had seen Ms. Ashe, as he should have, he could have avoided striking her. If he had seen Ms. Ashe in her unusual position of standing behind the tow truck he would have been put on notice that she may be about to do something unusual, such as jaywalk. As an experienced driver, he would have slowed down and not driven into the oncoming lane when it may have been unsafe to do so. He had a clear view of the roadway for a safe distance. In the

circumstances he had a duty to anticipate the risk. (See: Nelson (Public Trustee of) v. Shinske, supra). [31] I am satisfied that Mr. Werstiuk, upon seeing Ms. Ashe, acted quickly and appropriately. I am not concerned that no horn was sounded in this circumstance as there was no time to do so. However, had Mr. Werstiuk observed Ms. Ashe when he should have, he would not have been able to sound a horn because his vehicle was not equipped with one. [32] There was no evidence of speeding or of skid marks. [33] Mr. Werstiuk submitted that his obligation to take care only arose after he had seen Ms. Ashe. (See: Melgarejo-Gomez v. Sidhu, [2002] B.C.J. No. 55 (B.C.C.A.)). [34] I am satisfied that Melgarejo-Gomez v. Sidhu, supra, is limited to its unique set of circumstances. It is not applicable in this case. In the present circumstances, I find the defendant, Mr. Werstiuk, negligent.

4. Was the Plaintiff Negligent? [35] The defendant, Mr. Werstiuk, says that if Ms. Ashe had crossed in the crosswalk or had kept a proper lookout, the accident would not have happened. [36] Ms. Ashe looked and observed Mr. Werstiuk coming toward her. She assumed that the backhoe was slowing and would stop for her and not come into the other lane. [37] Ms. Ashe did not cross at the crosswalk because she believed it was not safer than jaywalking, due to the heavy traffic on Springfield Road that usually turned onto Graham Avenue. I am satisfied that she should have used the crosswalk. [38] It is difficult to tell from the evidence how far away the backhoe was when Ms. Ashe started across the street. It makes no sense that she would have stepped out when it was only one second away and bearing down upon her. It makes no sense that Mr. Werstiuk saw her when she was only six feet away as he managed to stop his 6,500 kilogram backhoe within six feet of striking her without leaving skid marks. [39] Ms. Ashe had a duty to exercise due care for her own safety and the safety of others, both statutorily and at common law. [40] By not making certain that Mr. Werstiuk was in fact slowing down and had sufficient distance to bring his vehicle into a safe position on the roadway, Ms. Ashe contributed to her own injury. Once Ms. Ashe started across the road in front of the backhoe, she did not

look at the machine again. [41] It would have been obvious to her and to any observer that the possibility of being struck by the backhoe was reasonably apparent and she failed to take sufficient precautions. (See: Nelson (Public Trustee of) v. Shinske, supra). [42] Ms. Ashe must bear some responsibility for failing to ascertain that the backhoe was actually slowing or stopping. By making the assumptions she did and thereafter crossing in front of the oncoming backhoe, she failed to yield the right-of-way to the backhoe. She was negligent in so doing.

5. Conclusion on Liability [43] I find that both parties were negligent. I divide the liability between them as follows: 75 percent fault to the defendant, Mr. Werstiuk, and 25 percent fault to the plaintiff, Ms. Ashe.

INJURIES 1. Background [44] Ms. Ashe is a divorced woman with Grade 8 education and one grown child. Her eldest child, Simon, was killed at age 13 when he collided with a train on his bicycle. [45] Ms. Ashe has had training and experience in welding, blasting, labouring, and as a linesman, flagger, horse trainer, fisher, hunter, trapper, farmer, and dog kennel operator. All of her jobs required strength, stamina and good health. [46] In the ten years between 1990 and 1999, Ms. Ashe lived in Mexico and worked as a nanny and housekeeper for room and board and a few dollars per day. [47] Ms. Ashe returned to Canada to reconnect with family and friends. She found the job market slim. Her lack of education and papers led to a decrease in her confidence. She eventually rented a room from the Laboucane family in Kelowna.

2. Employment in Kelowna [48] Prior to the accident Ms. Ashe took a government funded job re-entry program called KEREDA. This program was a 5-day per week, 12-week program. While at KEREDA, Ms. Ashe received a Superhost certificate, a Food Safe certificate, and a First Aid certificate. [49] As a result of the KEREDA program, Ms. Ashe found employment for about one week in April 2000 with the janitorial contractor for Great Canadian Superstore. This job involved cleaning the floors with large machines. She found this job too strenuous so she quit. She then visited her doctor because of right hip pain and lower back pain. [50] Ms. Ashe was eventually employed by Okanagan Seasons Resort as a housekeeper. The work was seasonal work. She expected to seek similar work at a ski resort for the winter months. Ms. Laboucane (Zimmerman) testified that in Kelowna Ms. Ashe seemed happier and more self-confident than she had been in Salmon Arm.

3. Pre-accident Health [51] There are no medical records from Mexico. In July 1999 while in Salmon Arm, Ms. Ashe saw Dr. Gow, a family physician, as she complained of joint pains and thought she might have a recurrence of malaria. Tests were negative for malaria parasites. She also complained of insomnia. Unemployment and social stresses were noted by Dr. Gow. She was prescribed Tylenol 3 on July 29 and August 27, 1999 (30 tablets each). [52] After Ms. Ashe moved to Kelowna, she saw Dr. Woychuk on January 27, 2000, where she complained of "back pain 24/7". On March 16, 2000, she was seen for a complaint of back pain (of one week's duration) and anxiety. [53] On April 26, 2002, Dr. Penner became Ms. Ashe's family doctor. Ms. Ashe complained of increasing lumbar and sacroiliac pain with janitorial work. Tylenol 3's were prescribed. On May 23rd, she had onset of hip pain after heavy work at Great Canadian Superstore which he diagnosed as a moderate piriformis strain. [54] X-rays were taken on May 30, 2000, and indicated "mild facet OA L4-5 L5-S1 only N discs". On June 23, 2000, Dr. Penner noted some decrease in Ms. Ashe's lower back pain. Dr. Penner prescribed pain medication in the form of Tylenol 3 on April 23rd, May 23rd, and June 23rd. Exhibit 2, Tab 9, shows that Ms. Ashe was dispensed with Tylenol 3 before the accident on June 23rd as follows: July 27, 1999 30 tablets July 28, 1999 30 tablets April 26, 2000 40 tablets May 23, 2000 60 tablets June 23, 2000 60 tablets [55] This would equate to about two tablets per day in the period 60 days before the motor vehicle accident. No prescriptions for Tylenol 3 were filled for about eight months before April 26, 2000.

4. Injuries [56] When Ms. Ashe crossed Graham Street on June 23, 2000, she was struck by the lower edge of the backhoe's front bucket. The point of impact on her body was approximately the outside portion of her left leg just above her knee. Ms. Ashe was thrown into the bucket of the backhoe and was struck on the left side of her head above her left ear on the bucket. She then fell to the pavement in front of the bucket. She did not lose consciousness. [57] Following the accident, Ms. Ashe was unable to stand. She was placed in a vehicle driven by Mr. Popoff, and was driven to her nearby residence. Ms. Laboucane (Zimmerman) examined Ms. Ashe's leg and called the ambulance which transported her to Kelowna General Hospital. [58] The emergency record indicates that Dr. Korzan examined Ms. Ashe and found a displaced left tibial plateau fracture and a small hematoma to her left temple. She was admitted to Kelowna General Hospital. [59] Dr. Terrance O'Farrell examined Ms. Ashe on June 24, 2000, and confirmed the diagnosis. He also noted that she complained of some dysesthesia in her left leg. On June 26, 2000, Dr. O'Farrell performed an open reduction of the fracture site and explored the peroneal nerve for damage. The tibial plateau is the top portion of the tibia upon which the femur rests at the knee joint. The plateau was depressed as a result of the impact. Dr. O'Farrell raised the bone fragments into position, completed a bone graft consisting of packing crushed bone around the fragments, and secured the fracture site with a buttress plate which was attached to the tibia with screws. The peroneal nerve was found to be contused but not severed. [60] Ms. Ashe remained in the hospital for a period of 11 days. She was discharge on July 4, 2000.

5. Rehabilitation [61] Ms. Ashe progressed from a wheelchair to a walker to crutches and to a cane. She had physiotherapy treatments. She was fitted with two braces for her left leg. One was an ankle-foot brace that supported her foot. The other brace was a lateral unloader brace which supported her knee when walking. [62] Ms. Ashe has progressed with her recovery but now has a valgus deformity. This means her lower left leg bends outward to the side and the knee bends inward. Dr. Penner described the cause as the surface of the tibial plateau depressing laterally. Dr. Penner stated in his report dated December 14, 2000, that "she has continued to make slow steady progress but remains troubled with constant pain with distinct worsening with any weight bearing activities". [63] Although she was to wear both braces at the same time, she has been unable to do so because of a fitting problem. She has had some improvement in her peroneal nerve palsy. She continues to use her knee brace for shopping and housework. She continues to be in pain and uses Tylenol 3's and Ibuprofen. She uses an average of two to three Tylenol 3's per day. She uses Ibuprofen limited to once per day because it bothers her stomach. She does exercises three times per day and takes Epsom salt baths for her discomfort. [64] In his report Dr. Penner stated, on page 3, that Ms. Ashe has been "rendered totally

disabled from pursuing any form of employment since the date of the MVA to the present. Due to acquired defect in the structure of her knee joint it is my opinion that she will not be able to return to her prior work as a cleaner/janitor without significant pain." [65] Later Dr. Penner stated "I consider Colleen to be fully disabled from any manner of employment to at least January 2, 2001. At that time she would be best be capable of sedentary work only on a half time basis. The issue of whether there is work available that Colleen is both qualified for and capable of performing is also an issue." [66] Dr. O'Farrell testified that Ms. Ashe will require a total knee arthroplasty, that is a knee replacement surgery, within a few years. This surgery usually requires five to seven days' hospitalization followed by six weeks on crutches and six weeks with a cane. She would be expected to walk independently at about three months following the surgery. The end result of this surgery would be some improvement in her strength, but a decrease in her range of motion. [67] Ms. Ashe's injuries appear to have caused her significant psychological difficulties. Ms. Laboucane (Zimmerman) testified that after the surgery Ms. Ashe was tired and afraid. Following her discharge from hospital she was reclusive, staying in her bedroom, and seemed to be in pain and had difficulty getting around. She

appeared timid. [68] Ms. Ashe went for counselling through Kelowna Mental Health with counsellor Eugene Cheung. She was also seen by Dr. Milanese, a psychiatrist, on a few occasions. Ms. Ashe was placed on anti-depressants but ultimately stopped using them because of side effects. Although she still experiences sadness, she says "it passes". [69] Brenda Pontin has resided with the plaintiff since September 15, 2001, in an apartment on the second floor of an apartment building which does not have an elevator. She testified that the plaintiff has difficulty managing stairs, particularly going up stairs. She said that Ms. Ashe uses a knee brace and a cane while indoors. She testified that Ms. Ashe walks at a slow pace and is nervous crossing major intersections. She testified that she goes out with Ms. Ashe for walks but Ms. Ashe needs to sit often in order to rest. Ms. Pontin states that Ms. Ashe has difficulty carrying shopping bags, vacuuming, and doing heavier tasks. She finds the plaintiff to be nervous, anxious, and spending a lot of time in her room, sometimes crying.

6. Non-Pecuniary Damages [70] I am satisfied based on the evidence of the plaintiff, Norma Laboucane (Zimmerman) and Brenda Pontin, that this knee injury has had a devastating effect on the life of Ms. Ashe. Her self-esteem has been seriously diminished. She not only lacks the confidence to seek work and shop for her daily needs, but is frightened to cross streets even at light-controlled intersections. [71] I have reviewed the cases relied upon by counsel. These cases are of some assistance as several deal with knee injuries. However, I agree with Bouck J. in Kumlea et al. v. Chaytors et al. (25 October 1991), Smithers Registry 4819, when he said: While other cases of a similar nature are often helpful, they are only useful to try and achieve some consistency. But consistency in fixing damages is simply a desirable goal, not a legal principle. Every human being is different. No two persons suffer exactly the same kind of injury. No two persons react in exactly the same way to an injury they receive. The genius of the common law is to craft a custom made award for each injured plaintiff that is reasonable in the circumstances. [72] I assess non-pecuniary damages at $85,000.

7. Past Loss of Income [73] There is no doubt that the accident has disabled Ms. Ashe from working, and that she would have been employed and earning some kind of income if the accident had not occurred. However, the available employment records indicate that Ms. Ashe had previously had sporadic employment at minimum wage. [74] I am satisfied from the medical records of Dr. Penner and the testimony of Ms. Ashe that her ongoing back pain was preventing her from working at the time of the accident. [75] The claim by Ms. Ashe that she would have lost $3,240 in wages from the Okanagan Season Resort is not supported by the evidence. I find that her past income loss is zero.

8. Future Income Earning Capacity [76] I have considered the authorities cited by counsel. I have in particular considered Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.) where the British Columbia Court of Appeal approved the factors expressed in Brown v. Golaiy, [1985] B.C.J. No. 31 (Q.L.) (S.C.): 1. The plaintiff has been rendered less capable overall from earning income from all types of employment; 2. The plaintiff is less marketable or attractive as an employee to potential employers; 3. The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and 4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market. All of these factors apply to Ms. Ashe. [77] Ms. Ashe had no plans for retirement. She was active and always worked when she was able to find employment. It is evident from her employment at Okanagan Seasons Resort that, despite her pre-accident bouts of low back pain, Ms. Ashe was physically capable of cleaning rooms, dusting, vacuuming and scrubbing. The work was almost full time; she worked 432 hours in five and a half weeks at $7.50 per hour. There was no evidence that this pre-existing back pain was likely to worsen despite the accident. [78] Ms. Ashe has no savings or pension plans other than her automatic

deductions to the federal system. It is reasonable to conclude that she would work past age 65 if there was work available that she was capable of performing. [79] Ms. Ashe is intelligent and hard working. She has attempted to improve her education and expand her skills but she is not readily employable much above the minimum wage level. [80] Ms. Ashe needs to be strong, physically fit and in good health to pursue the type of work she has had in the past, and would likely get in the future. [81] On the totality of the medical evidence, including the likely success of knee replacement surgery in a few years with the resulting permanent decrease in the range of motion of that knee, I am satisfied that it is unlikely Ms. Ashe will find work before such surgery. I find that it is probable that Ms. Ashe will be less capable of performing her usual occupation and that she will have fewer employment opportunities due to the decrease in her overall confidence and permanent decrease in her physical fitness level, as a result of this accident. She will need to find a sympathetic employer, as she cannot offer the employer any uncommon skills to offset her decrease in physical ability. [82] There is no expert evidence indicating an appropriate measure of damages for the impairment of the plaintiff's earning capacity. The defendant admits that there has been an impairment of future earning capacity but disagrees with the plaintiff's assessment of the effect of that impairment. I am satisfied that Ms. Ashe's loss of income earning capacity should be set at $45,000. [83] The parties have agreed on the amounts for cost of care and special damages.

CONCLUSION [84] Damages are therefore assessed as follows: (a) Non-pecuniary damages $ 85,000.00 (b) Past-loss of income $ 0.00 (c) Loss of future earning capacity $ 45,000.00 (d) Special damages $ 1,216.35 (e) Cost of care $ 583.90 [85] Ms. Ashe is entitled to court ordered interest at the registrar's rate on her past pecuniary losses where applicable. Ms. Ashe is entitled to her costs on a party and party basis level, Scale 3. "R.W. Metzger, J." The Honourable Mr. Justice R.W. Metzger