Page 1 of 1 Baker v. O'Hanley 1997 Date: 20010307 Docket: S.H. No. 135868 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as: Nettie Baker and Michael O Hanley, 2001 NSSC 38] BETWEEN: NETTIE BAKER Plaintiff MICHAEL O HANLEY Defendant DECISION
HEARD BEFORE: The Honourable Justice Robert W. Wright at Halifax, Nova Scotia on February 5-9, 2001 WRITTEN RELEASE OF DECISION: March 7, 2001 COUNSEL: Valerie Romkey and Barry Ward for the Plaintiff Murray Ritch, Q.C. and Shawn Harmon for the Defendant Wright J. BACKGROUND  On the evening of February 22, 1995 the plaintiff Nettie Baker was on her way home after doing a physical workout in the Mount Saint Vincent University gym when she was struck in a crosswalk on the Bedford Highway by a vehicle driven by the defendant Michael O Hanley. Liability for the accident has been admitted and damages are now to be assessed.  The Plaintiff is presently 47 years of age and the mother of a son and daughter who have now attained the ages of 23 and 25 respectively. Both still live at home. Ms. Baker was divorced from her husband some time prior to the accident. Page 2 of 2
 Ms. Baker has a community college degree in electronics technology and has been in the electronics field for most of her working life. Her career began with the military in 1974 and she has since worked as an electronics technician in the private sector, most recently with Metocean Data Systems Ltd. where she was employed at the time of the accident. Because of her injuries, she was unable to return to the workforce until January, 2001 following a 14 week retraining program. Her new employment is with Convergys Customer Management Canada Inc. in Dartmouth, Nova Scotia as a customer service representative handling incoming calls from AT&T wireless telephone users.  This transition to a sedentary position of employment was necessitated by the effect of the injuries sustained by Ms. Baker in the accident. Her most serious injury was a severe fracture of the left tibia/fibula. She also suffered extensive bruising to her hands (particularly the right one) and a concussion. Her recovery from her leg fracture was extremely prolonged (as will be detailed later) and led to the development of carpal tunnel syndrome in both arms. She now seeks to recover damages for non-pecuniary loss, past and future loss of income, loss of valuable services, cost of future care and special damages. NON-PECUNIARY DAMAGES  Immediately following the accident, the plaintiff was taken to hospital for treatment of her injuries. Because of the instability of the fracture site in her left leg, the plaintiff underwent surgery by Dr. David Petrie on February 25, 1995 for a closed intramedullary nailing fixation procedure. Her leg was then placed in a cast and she was released from hospital about a week later.  Unfortunately, the screws holding the hardware in place in the lower leg did not hold properly with the result that the plaintiff was required to undergo surgery a second time on October 2, 1995 for an exchange of the intramedullary nail. Again her leg was immobilized in a cast and she was discharged from hospital five days later.  After both of these operations, the plaintiff had to undergo a painful regime of regaining the weight carrying capacity in her left leg. She eventually progressed from a walker to crutches and then to the use of two canes. She required prescriptions for painkillers. Once mobilized, she then attended physiotherapy sessions on numerous occasions and on Dr. Petrie s advice, began a daily walk regimen of a distance of about one mile. She also tried to go back to her former exercise program and by early 1997 was working out at a reduced level three times a week. After working out, however, her leg became tender which caused her to have to get off her feet for the rest of the day. She also had difficulty in bending, kneeling and lifting.  With the persistence of the problems with her leg, the plaintiff continued to be followed orthopaedically. She met with Dr. Petrie on March 17, 1997 to discuss the available medical options to treat what was determined to be the non-union of the fracture site. The decision was then taken to undergo a third surgical procedure known as a Harmon posterior bone graft, using the iliac crest as a donor site.  Ms. Baker testified that she was devastated by the thought of yet another surgery and that she became quite depressed. She was referred to a psychologist for counseling and Page 3 of 3
given a prescription for Paxil. The medical records indicate that this referral actually dates back to April of 1996.  The Harmon bone graft procedure was carried out by Dr. Petrie on July 3, 1997. After getting through post-operative recovery, Ms. Baker had some initial improvement in her condition although she had now developed soreness in her right shoulder from the position in which she had to be placed on the operating table. More troublesome, however, was that even with the bone graft procedure having been carried out, she continued to have persistent clinical and radiographic non-union of the fracture site. She was also at this stage beginning to experience numbness in her hands from prolonged use of two canes during her convalescence.  Ms. Baker was again seen by Dr. Petrie on May 4, 1998 for further follow-up. At that time, Ms. Baker was referred to Dr. Ross Leighton for a second opinion in light of his special expertise in cases involving complications from nail fixations. Dr. Leighton recommended, and performed on July 10, 1998, another bone graft operation involving a reaming of the bone process designed to stimulate new bone growth both inside the bone canal as well as the outside layer of bone.  This fourth surgical procedure proved to be the turning point in Ms. Baker s recovery. After being hospitalized 3-4 days, she returned home with her leg immobilized in a cast. From there, she went through the usual progression of using a walker, then crutches, then two canes in regaining weight-bearing capacity in her leg. Ms. Baker testified that she achieved a lot of healing after the passage of a couple of months following this surgery.  In a medical report dated June 26, 1999, Dr. Leighton noted that he assessed Ms. Baker in clinic on May 19, 1999 at which point she had good range of motion of her knee and ankle. In that letter, Dr. Leighton also declared Ms. Baker to be then clinically healed and radiologically healed and that in his opinion, there would be a less than 5% incidence of requirement for removal of the intramedullary nail of the tibia. He also noted that Ms. Baker had developed carpal tunnel syndrome in both arms from the prolonged use of two canes post-accident which would require decompression by Dr. Howes, a neurosurgeon. Dr. Leighton concluded his medical report with the comment that he estimated Ms. Baker to be left with a permanent partial disability of 15%.  In a subsequent discovery examination, Dr. Leighton revised this estimate to a range of 10-12% of permanent partial disability based on medical disability ratings used in the profession. He explained, using the 15% figure, that the rating means that a person can do 85% of their pre-accident activities having regard to the degree of the individual s stamina, disabilities and tolerances. Dr. Leighton stood by his 10-12% estimate of permanent partial disability in his evidence at trial although he did allow that that estimate might increase depending on the final outcome of the carpal tunnel syndrome treatment.  Dr. Leighton also prepared a second medical report on September 15, 2000 following an examination of the plaintiff on June 9, 2000. This is the most recent medical report available, the salient part of which is reproduced is as follows:
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Fortunately, the procedure in 1998 has gone on to resolve her problems. She has been left with a nice united tibia with the IM nail in place. Review of her on June 2nd 1999 showed a patient with things gradually settling down. Her tibia is well united. She had limited discomfort around the tibia nail area and there is still some pain over the old non-union site. Range of motion of the knee and ankle were gradually improving. Evaluation of her on June 9th, 2000 showed Nettie Baker doing very well following her long saga of non-union. She healed up very nicely. There were no major signs of any troubles around the nail and she has no proximal or distal pain. The non-union site is basically healed up completely and she has very limited discomfort there after a long day. She has a bit of anterior knee pain but not enough to warrant anything surgical at this point. Therefore, I have not recommended removal of fixation, either of the knee or ankle area. My anticipation at this point in time is that she will return to most activities, and indeed, she looks well. I, therefore, recommend a vocational rehab program in assisting this patient in returning to work. It is certainly an appropriate time to look at this with her. I would not recommend major lifting or long-term walking or climbing stairs but as far as normal day to day activities, such as sitting or standing positions, she could certainly do this without difficulty. I would anticipate with this vocational rehabilitation that the patient is capable of returning to work at any time in the near future. She really doesn’t require any further treatment, consultations or changes as far as this patient s current treatment regimen is concerned. We have had her see an Endocrinologist but there is no sign of any osteoporosis and she is presently undergoing a personal rehab program in order to keep up her stamina and strength. At this point in time, there are no further medications that are being used for her on a regular basis and she is just going through a home physio exercise program. I am very pleased with how she has done and, indeed, happy with her performance to date. There is no further surgery planned although review in a year may be indicated.  Dr. Leighton further elaborated at trial that Ms. Baker s left leg has reduced strength from what it was pre-accident and is not as functional today as it was. He made the same comment with respect to her foot. His opinion is that Ms. Baker s condition will in future remain fairly static with what we see today. He allows that there is a possibility of arthritis developing in the ankle or knee joint but rates that possibility as being low.  As noted in Dr. Leighton s report, the prolonged use of two canes during the plaintiff s convalescence from four surgical operations on her leg led to the development of carpal tunnel syndrome in both arms. For this she was referred to Dr. W.J. Howes whose medical reports were entered in evidence at trial by agreement of counsel. The
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most recent report authored by Dr. Howes is that of July 31, 2000, the salient part of which reads as follows: She is having continuing difficulties with the hand in that she has developed an extremely tender scar. Whenever she touches it, it is uncomfortable and sometimes the pain even radiates up her arm. She is not awakened at night by pain. She has none of her previous pain or numbness. On examination, her hand is quite normal unless one touches the scar. The scar is not particularly raised or erythematous. She assures me that she is able to use both hands equally well. I don t think she has any residual carpal tunnel symptomatology and I don t think further investigation for this is warranted. In terms of the tender scar, these are best treated with time and local massage and exercise.  It is the left hand in respect of which the plaintiff continues to experience difficulty following the carpal tunnel surgery that was performed in January of 2000 (similar surgery having been performed on the right arm on June 15, 1999). Ms. Baker testified at trial that these symptoms in her left arm have continued to the present time and that she is being referred to a specialist, the identity of whom was not mentioned. She testified that she experiences pain up her forearm at times in her new employment and that she is also still restricted in her ability to do certain handcrafts which have long been a hobby for her. She raised the prospect of having to undergo further surgery on her left hand but there is presently no medical evidence of a reasonable chance that that will actually occur.  Prior to the accident, Ms. Baker was generally in good health although she was diagnosed in 1990 as having non-insulin dependent diabetes. She was able to control this, without medication, through a proper diet and a strenuous physical exercise program through which she achieved a significant weight loss.  Unfortunately, the forced inactivity from the accident and the subsequent surgeries caused Ms. Baker to lose control of her diabetes as her blood sugar levels rose along with her weight. She had to be put on medication in an effort to regain that control. The possible implications of her diabetic condition were described in the April 20, 1999 medical report by her family physician, Dr. Christopher Childs, as follows: Diabetes During the four years of her recovery her blood sugar control has been very poor and this of course is because of her enforced inactivity. I am glad to say that her last blood tests done in March showed a considerable improvement in blood sugar levels. I cannot state it as a fact that poor control over the last four years will shorten her life span or accelerate the onset of diabetic complications, but there is no doubt from many large studies of diabetes that the poorer the control of sugar levels the more likely a patient is to get complications such as eye disease (which so far Mrs. Baker has no sign of), or renal disease. The probability is that to an unquantifiable degree Mrs. Baker will have lost some life expectancy because of this poor control.
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 Dr. Childs was called as a witness at trial but was at a bit of a disadvantage in speaking to Ms. Baker s current condition where he left private practice at the end of September, 1999 and last examined her shortly before that. He did offer the opinion, however, that he thinks Ms. Baker can regain control of her diabetes but that she can never make up for the four to five years when it was out of control and that indeed, she has already shown early signs of renal disease. He then spoke in terms of long term possibilities, namely, renal dialysis and transplant treatments but acknowledged in cross-examination that he was only speaking in generalities about these possibilities and that in relation to the plaintiff, they remain hypothetical. He also affirmed that Ms. Baker had never been referred to a diabetes specialist.  Although Dr. Childs did not treat Ms. Baker orthopaedically, his April 20, 1999 medical report concluded with the following notation: As to prognosis: Mrs. Baker suffered a very severe injury and the orthopedic consequences will be prolonged and probably include arthritis in her left knee and ankle. I would consider an orthopedic opinion more valuable than my own in this respect. The effect on her diabetes I have alluded to earlier; this is unmeasurable, but almost certainly real. She suffered great psychological stress for most of the four years, but seems to have made a good recovery from that, and probably there will be no long term complications as a result.  Dr. Childs affirmed at trial that he would defer to the specialist opinions of Dr. Leighton and Dr. Howes in their respective fields of orthopaedics and neurosurgery. He summed up his evidence, however, by saying that Ms. Baker had eventually made a really good recovery, had adapted to her injuries and gotten on with her life.  In her own testimony, Ms. Baker testified that life over the past six years has been completely changed where she was unable to do a lot of things that she could do before the accident. She stated that she can walk fairly well now and indeed, often walks up to two miles at a time. When she does this, however, it causes pain to flare up in her left ankle and knee and the fracture site.  She also described her present limitations as including difficulty in kneeling, squatting, lifting anything more than 5-10 lbs. and using stairs. This is consistent with the above recited medical report of Dr. Leighton dated September 15, 2000. She testified that she does have limited tolerances for sitting and standing, particularly the latter, which is borne out by a recent Key Functional Assessment which Ms. Baker underwent on January 10, 2001 as will be noted later in this decision.  Ms. Baker finds that her leg pain symptoms and pain in her lower back area are aggravated by prolonged periods of standing or walking. She says that she is always in pain and that it is simply a matter of degree. She also continues to complain of tenderness in the scar tissue on her left hand. Beyond that, she feels that her general level of health has deteriorated because of the exacerbation of her diabetes condition.  As to the effect of her injuries on her recreational activities, Ms. Baker testified that she can no longer bowl, play darts or go dancing for any length of time as she used to. She also finds that she has difficulty in doing certain handcrafts notwithstanding her carpal tunnel surgery and those activities are somewhat curtailed as well. Perhaps her most important loss of amenity, however, is her inability to do vigorous physical workouts as she regularly did prior to the accident, both for enjoyment and to control her weight in
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light of her diabetic condition. Those physical workouts were, as she put it, her thing . Now, however, she can only work out at a substantially reduced level so that her general fitness level has reduced as well.  All in all, I found Ms. Baker’s evidence to be generally credible and reliable and consistent with the medical evidence, although she portrayed her ongoing physical limitations as more pronounced than did her attending physicians. There is no question, however, that she suffered a severe fracture of her left tibia which resulted in a long saga of non-union which necessitated four surgical operations before success was finally achieved. She went on to develop carpal tunnel syndrome from the prolonged use of two canes and experienced depression with each medical setback requiring medication. Although she has now made a good recovery, she is left with a permanent partial disability which restricts her former recreational activities and housekeeping abilities (of which more will be said later) and now limits her to sedentary positions of employment. In respect of the prospective diabetes complications spoken of by Dr. Childs in his evidence, I consider such possibilities to be much too speculative and hypothetical in relation to the plaintiff to warrant being taken into account in the proper assessment of non-pecuniary damages.  The assessment of non-pecuniary damages is by its very nature an inexact science and the court must do the best it can to provide fair compensation in the circumstances of each individual case. Counsel for the plaintiff submits that an appropriate award for non-pecuniary damages in this case would be in the range of $100,000. In support of that submission, she has made reference to the decisions of this court in Mader v. Lahey (1997) 167 N.S.R. (2d) 257, Marinelli v. Keigan (1999) 173 N.S.R. (2d) 56, Cameron v. George (1999) 178 N.S.R. (2d) 142, Bonnar v. Crane (1997) 162 N.S.R. (2d) 39, MacPhail v. Desrosiers (1997) 166 N.S.R. (2d) 81 and Roberts v. Cape Breton Regional Hospital (1997) 162 N.S.R. (2d) 342.  Counsel for the defendant submits that an appropriate award of non-pecuniary damages in this case would be $55,000. He has cited a large number of cases in support of that position but principally mentions Lutley v. Jarvis (1992) 113 N.S.R. (2d) 201 and Phillips v. Kendall Estate (1994) 132 N.S.R. (2d) 161.  None of these cases are exactly alike but collectively they do provide some guidance as to the appropriate range of compensation that should be awarded in this case. Given the evidence I have outlined with respect to the plaintiff s periods of temporary total disability, permanent partial disability, prolonged pain and suffering through six surgical procedures, loss of amenities, diminished past housekeeping abilities and past exacerbation of her diabetes condition, I conclude that non-pecuniary damages of $65,000 should be awarded to the plaintiff.  The plaintiff is also entitled to pre-judgment interest on these damages at the rate of 2 % per annum over the six year period from the date of the accident to the date of trial. Defense counsel takes no issue with this in this case. PAST LOSS OF INCOME  At the time of the accident, Ms. Baker was employed as an electronics technician at Metocean Data Systems Ltd. at an hourly rate of $10.40 plus benefits (having been Page 8 of 8
initially hired in that position in1991). She was eventually replaced in her position by Doug Kervin who was hired in October of 1995 at an hourly rate of $9.50.  The approach taken by plaintiff s counsel in calculating past loss of earnings has been to track the monetary aspects of the employment of Mr. Kervin (and his recent successor) from the date of his hire to the date of trial. This approach has been captured by the actuarial report prepared on behalf of the plaintiff by Jessie Gneimer dated September 19, 2000 and updated on February 2, 2001. In her report, Ms. Gneimer has taken into account a one year 8% wage rollback which would have encompassed Ms. Baker in 1996-97 as well as a 2 month lay-off to which she would have been subject in the fall of 1996 had she remained in the employ of Metocean. From there, Ms. Gneimer has tracked the hourly wage of Mr. Kervin and his recent successor to its present level of $13.50 per hour as of January 1, 2001. This produces a present annualized salary of $28,080 which also forms the actuarial assumption for the calculation of loss of future earnings as will be discussed below.  With this methodology, Ms. Gneimer has calculated the plaintiff s past loss of earnings to the date of trial at $119,000 (rounded). Counsel for the defendant takes no real issue with this amount and it will be included in the final award of damages accordingly.  The plaintiff is also entitled to pre-judgment interest on these damages. Adapting Ms. Gneimer s calculation in this regard to allow for certain adjustments made during her testimony, recovery of pre-judgment interest is fixed at $16,750 (rounded). PAST LOSS OF EMPLOYER PAID CONTRIBUTIONS TO RRSP  One of the collateral benefits to which the plaintiff was entitled at Metocean was an employer paid matching contribution to her RRSP. That benefit was lost, of course, when the plaintiff was formally terminated from her employment effective September 1, 1996.  As part of her actuarial report, Ms. Gneimer has calculated this past loss at $2,272, taking into account the changes made in the plan effective January 1, 1999 and the lay- off period of 2 months. I accept the methodology of this calculation and the plaintiff will accordingly be entitled to recover the sum of $2,272 plus an additional $200 (rounded) in pre-judgment interest. LOSS OF FUTURE EARNINGS  Before launching into a consideration of the loss of future earnings component of the claim, it should be noted that counsel for the defendant acknowledges that the plaintiff cannot return to her former position of employment as an electronics technician because of her permanent partial disability. Neither is it contended that there has been any failure to mitigate on the part of the plaintiff.  As touched on earlier in this decision, the plaintiff underwent a 14 week retraining program commencing in October of 2000, the first segment of which was a skills training partnership program. The second segment was job training with her new employer, Convergys Customer Management Canada Inc. That training was completed on January 26, 2001 whereupon Ms. Baker moved to full-time employment beginning at an hourly Page 9 of 9
wage of $9.50 (plus benefits). That will increase to $9.75 per hour after six months and then to $10.25 per hour after one year. Thereafter, salary increases are tied to annual performance reviews.  It should also be noted that these wage rates can be incremented by both premium shift differentials and overtime work. More specifically, the plaintiff earns an additional 25 cents per hour when working between 6:00 p.m. and 12:00 p.m. and an additional 50 cents per hour when working between 12:00 p.m. and 8:00 a.m. Her present shift is from 5:30 p.m. until 2:00 a.m. and there will be little variance in that at least for the coming year.  All of this data has been factored into the actuarial assumptions made by Ms. Gneimer in her calculation of Ms. Baker s future loss of earnings, as adjusted during her testimony. She has also incorporated the standard actuarial assumptions of mortality and disability contingencies, a net discount rate of 2 % per annum (in keeping with Civil Procedure Rule 31.10) and used a present valuation date of February 5, 2001. For purposes of these calculations, she has not factored in contingencies for possible advancement in the company or any productivity or real wage increases (i.e. wage increases at a pace greater than the rate of inflation). Neither has she factored in unemployment or early retirement contingencies. By way of illustration, she has performed her actuarial calculations using alternate projected retirement dates for Ms. Baker of ages 60 and 65.  Based on the actuarial assumptions used and a retirement age of 60, Ms. Gneimer has calculated the present value of the plaintiff s loss of future earnings at $284,164. She has also calculated the present value of Ms. Baker s residual earnings at Convergys using the pay rates above mentioned (including the premium shift differential but not the possibility of any overtime) at $220,394. This actuarially produces a net loss of future earnings measured by a present value of $63,770.  The same methodology using a retirement age of 65 produces a present value calculation of the plaintiff s loss of future earnings at $363,392 less the present value of her residual earnings at Convergys at $282,199. This produces a net loss of future earnings measured by a present value of $81,193.  It is reasonable to assume that Ms. Baker will continue in her new employment or in a similar line of sedentary employment given her demonstrated work ethic, aptitude and academic skill levels. Evidence in the latter regard was introduced through defense witnesses in the persons of Mr. Tom Stanley of the Halifax Work Hardening Centre and Ms. Shelley Stoyles, an Occupational Therapist. Mr. Stanley performed a Key Functional Assessment on Ms. Baker on January 10, 2001 on the basis of which he concluded that the plaintiff s work day tolerance is estimated at 8 hours. This takes into account Ms. Bakers demonstrated tolerance for sitting, walking and standing. Mr. Stanley acknowledged that based on the specific tests administered in the Key Functional Assessment, Ms. Baker s abilities were in the range of 25-30% of what would be expected to be normal for a person her age. His overall conclusion, however, given the nature and extent of the plaintiff s disability, was that she is well suited to her new position of employment as a customer service representative at Convergys.  This conclusion was joined in by Ms. Stoyles whose concluding paragraph in her report of January 15, 2001 reads as follows:
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To summarize, Ms. Baker is presently performing a job that is well within her aptitude and academic skill level, meets her vocational interests and also with ergonomic devices is physically suited for performing. Due to Ms. Baker’s average to above average aptitude level, there are a host of jobs she would be suited for, her main limitation with regards to employability is her physical restrictions.  Ms. Baker testified in her direct evidence that it was her intention pre-accident to work to the normal retirement age of 65. In light of all of the evidence (and with the benefit of an ergonomic work station as she now has), I conclude that it is probable that she will now continue to work up until age 65 or something close to that. That is to say, it is improbable that she will be forced to retire at an earlier age than she otherwise would have because of her injuries.  The judicial treatment to be accorded actuarial evidence was addressed by the Nova Scotia Court of Appeal in Misner v. Whitehead (1982) 51 N.S.R. (2d) 111. Chief Justice MacKeigan put it this way (at page 131-2):
To determine what damages should be awarded to Mr. Whitehead for loss of future income, we cannot simply go through exercises in mathematics. Although we should take actuarial estimates into account, we must not abdicate to an actuary the judicial duty of arriving at a fair and just result. The determination should be made after considering, on the evidence, the relative probability of possible incomes that Mr. Whitehead might have earned in future had he not been injured and the relative probability of the possible incomes that he may in fact earn. The determination should weigh and consider the diverse mathematical estimates based on those incomes. In doing so, it should consider the relative probability of the various assumptions inherent in the estimates - such as the assumptions as to retirement, and the universal assumption that the income postulated will in each case continue unchanged until retirement except for the inflationary allowance built into the multipliers. The result must be appraised by judgment to ensure that it is not inordinately high or unusually low . The determination must on the bottom line make a judgment call as to what allowance for loss of future income is just and reasonable in light of all the evidence.
 These principles have been applied and developed in several subsequent cases, notably in Poirier v. Dyer & Dyer (1989) 91 N.S.R. (2d) 119 and Gaudet v. Doucet (1991) 101 N.S.R. (2d) 309.  In a case of diminished earning capacity such as this, the adoption of actuarial calculations is even more fraught with difficulty than it is in a case of total disability. While I am prepared to take the actuarial calculations made by Ms. Gneimer into account for some measure of guidance and perspective, I do not consider it appropriate to simply cast them into the award in light of the many variables present in projecting what Ms. Baker s life pattern would have been but for the accident and what it will be because of the accident. Rather, I accept the submission of defense counsel that a judgment call must be made in assessing this component of the damages claim and I accept that $60,000 is a just and reasonable figure in light of all the evidence.
Page 11 of 11 LOSS OF VALUABLE SERVICES  With the decision of the Nova Scotia Court of Appeal in Carter v. Anderson (1998) 168 N.S.R. (2d) 297, it has now been established in this province that the partial or total loss of housekeeping capacity has economic value which should be recognized. Justice Roscoe articulated a plaintiff s entitlement to such damages as follows (at p. 305): In my opinion, the modern advancement of this area of the law of damages, which is premised on the concept of direct economic loss of the plaintiff whose ability or capacity to perform homemaking or housekeeping tasks has been impaired, should be acknowledged and accepted in Nova Scotia. Future loss of capacity, where proved, should be compensated separately whether or not replacement help has been paid in the past. The award for lost capacity should not simply be part of the non pecuniary damages as an element of loss of amenities .  These principles were subsequently considered and applied in Cashen v. Donovan (1999) 173 N.S.R. (2d) 87. In that decision, Justice Goodfellow noted that caution should be exercised against readily accepting actuarial projections based primarily on statistical data as a replacement of a satisfactory evidentiary base. In the absence of evidence of the actual or projected cost for future housekeeping services in that case, Justice Goodfellow concluded that the better approach was to award a global lump sum which he made in the amount of $12,000.  The evidence in the present case is that prior to the accident, the household duties were shared between Ms. Baker and her adult son and daughter who lived at home. They were responsible for their own rooms and generally helped out otherwise. Ms. Baker estimated that she herself averaged a couple of hours a day with housework, including grocery shopping, laundry, cleaning the bathroom and floors and most of the meal preparation.  As a result of her injuries from the accident, Ms. Baker now has difficulty in kneeling or squatting which restricts her ability to clean the bathtub, scrub floors or reach the bottom shelves of her cupboards. She is also restricted from lifting anything weighing more than 5-10 lbs. She can do most everything else but finds that she now has to pace herself more in doing household duties and continues to rely on the assistance of her adult son and daughter who are still living at home. They presently live in a three bedroom apartment although it is likely only a matter of time before her children move out on their own. She will then have to manage her own household with more occasional assistance from them.  With the added assistance from her adult son and daughter, who with minor exceptions have continued to live at home since the date of the accident, Ms. Baker did not actually incur any expense for outside housekeeping services up to the time of trial. Although that is not a prerequisite for future entitlement, it leaves the plaintiff having to rely on commercial quotes obtained from two cleaning companies and data from Statistics Canada publications.  There are significant evidentiary problems underlying the actuarial calculations that have been made by Ms. Gneimer in quantifying the loss of future valuable services. She has assumed a future cost for housekeeping services of $175 per week plus HST, based on the quotes obtained from Glory Cleaning Service and The Maids which are Page 12 of 12
predicated on services being required five days per week. These assumptions produce a present value actuarial calculation of the loss at $172,543 to age 75.  First of all, neither of these quotes were entered in evidence and were merely referred to by Ms. Gneimer in her assumptions. Beyond that, Ms. Baker in her evidence testified that she contacted several cleaning agencies to explain what she needed (without any detail at trial) but she cannot now recall their names. She said that she did receive written verification of these quotes but cannot now recall who they were from.  Neither is there any evidence to support the assumption that Ms. Baker is in need of outside housekeeping services five days per week or is likely to become so. The fact of the matter is that the plaintiff lives in an apartment and will continue to receive housekeeping assistance from her adult son and daughter as long as they reside with her. At such time as they do move out, the plaintiff may well be anticipated to move to a smaller apartment and, of course, will then have only her own household to manage. Also to be taken into account is the contingency that she may well have required housekeeping assistance prior to attaining the age of 75 even without her injuries sustained in the accident. All in all, the suggested figure of $172,543 is entirely unrealistic.  In her updated actuarial report dated February 2, 2001 Ms. Gneimer, at the request of plaintiff’s counsel, provided an additional calculation based on the alternate assumption that Ms. Baker would require housekeeping replacement services at the rate of $50 per week or $2600 per annum. Using that assumption, the present value of the loss of valuable services to age 75 has been calculated at $43,057. This underlying assumption, however, presents as being somewhat arbitrary and indeed is strikingly similar to the figure used and adopted by the court in Carter v. Anderson.  I accept that Ms. Baker s permanent partial disability does pose a restriction on her being able to do some of the heavier household tasks as above mentioned and for which she deserves compensation for its economic value. There is, however, an insufficient evidentiary foundation for the adoption of the actuarial quantification of this loss made by Ms. Gneimer. Similarly as in the Cashen decision, I conclude that the better approach to the valuation of this head of damages is to award a global lump sum amount. The appropriate amount to be awarded, in my view, is $20,000 which includes an allowance for income tax grossup in light of the investment income that will be generated on these monies. SPECIAL DAMAGES  With the formal termination of her employment effective September 1, 1996 Ms. Baker also lost the benefit of her group medical plan. Consequently, she has since that date incurred unreimbursed medical costs for prescriptions, glasses and test strips in the aggregate of $2,934 as detailed in the actuarial report filed. This figure is not disputed by defense counsel nor do I understand there to be any dispute over the additional cost of $615 expended for prescribed orthotic footwear and inserts. That sum will also be allowed together with the rounded figure of $500 for pre-judgment interest which I have adapted from Ms. Gneimer s calculation. Page 13 of 13 COST OF FUTURE CARE
 As noted earlier, because of the forced inactivity from her physical injuries sustained in the accident, Ms. Baker lost control of her diabetes condition with the result that she had to be put on medication. Those medication costs have since averaged $280 annually and are likely to continue to be incurred at some level into the future. Ms. Baker is also incurring an ongoing expense for Advil.  Evidence has also been introduced projecting the expense that will be incurred by the plaintiff for orthotic footwear and inserts. The documentary evidence in this regard is that she will incur an ongoing average annualized cost of $334 for their replacement.  The combined total of these two annualized figures is $614. However, in my view some discount should be made to reflect the fact that the frequency of replacement of her orthotic footwear and inserts will probably reduce gradually as Ms. Baker advances in years. Some allowance should also be made for the fact that these outlays will likely serve to lessen the annualized cost of conventional footwear which she otherwise would have purchased over the years.  It was submitted by defense counsel that an additional reduction should be made in recognition of the fact that both prescriptions and orthotic expenses are covered under Ms. Baker s new medical group plan at Convergys to the extent of 80%. This is predicated on the argument that the premiums for this health coverage are entirely paid by her new employer.  The evidence on this point is somewhat uncertain. When asked the question on cross-examination, Ms. Baker replied that she thought that the dental coverage was 100% employer paid. When then asked the same question in respect of her health coverage, the question simply went unanswered as the cross-examination ended.  A review of the Convergys Benefit Plan reveals the following introductory statement: Your employer will deduct the required premium for long-term disability, optional life and AD&D, and/or health and dental benefits for your dependents from your pay in order for your coverage to be effective on the date you become eligible. Coverage will start as long as the initial premium is paid.  The inference I am prepared to take from this is that the Convergys group medical plan is a plan of insurance which is part of the overall compensation package for all eligible employees, and should be considered as such regardless of the direct contributions of the employer/employee for the coverages provided. Because this benefit plan falls within the so-called insurance exception under the collateral benefits rule, the tortfeasor here ought not get the benefit of a reduction in damages as a result.  In her actuarial report, Ms. Gneimer has provided a table of present value multipliers for cost of future care all the way from age 48 to106. Using these multipliers as a guide only, and taking into account the above referenced contingencies, I find that the plaintiff is entitled to an award for cost of future care of $10,000 including an allowance for income tax grossup in light of the investment income that will be generated on these monies. Page 14 of 14 SUMMARY  The awards under the foregoing heads of damages can be summarized as follows: Non-pecuniary Damages
 It was related to the court in the pre-trial briefs that the defendant first made an interim payment to the plaintiff on April 1, 1999 of $10,000, followed by a second interim payment of $20,000 on December 29, 1999 and a third interim payment of $25,000 on June 28, 2000. The defendant will be entitled, of course, to deduct these payments from the damages award I have made together with the correlating pre-judgment interest from the respective dates of payment to the commencement date of trial.  There were no submissions on the plaintiff s entitlement to costs at the conclusion of the trial but I would ordinarily be inclined to apply Scale 3 using the total award as the amount involved. However, if counsel wish the opportunity to make representations as to the appropriate award of costs, whether based on settlement offers made along the way or otherwise, I request that they do so by written submissions filed by March 30, 2001.
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