This, like the case of the employee injured as a result of the absence of a helmet required by law, raises the hypothetical question of what the plaintiff would have done had the physician discharged his or her duty. General tort principles suggest that this question is a purely factual inquiry to be answered by reference to all the evidence. This evidence may include evidence from the plaintiff at trial as to what she would have done. But it also includes relevant evidence of her situation, circumstances and mind-set at the time the decision would have been made. The trial judge must look at all the evidence and determine whether the plaintiff would have taken the suggested course on a balance of probabilities. One way of expressing this is to say that the plaintiff’s hindsight assertion at trial of what she would have done is tested or evaluated by reference to the evidence as to her circumstances and beliefs at the time the decision would have been made.
5. Application of the Hypothetical Question to the Thornton Criteria
¶ 253 The most logical method of testing the causal impact of the Defendants’ breaches is to apply the hypothetical question to the Thornton criteria.
(i) The Causal Impact of Permitting Inappropriate Activities
¶ 254 The first Thornton criterion is that the activities taught must be suitable to the age and condition, both physical and mental, of the students. This requirement overlaps to a certain extent with the supervisory duty discussed later. During such supervision it is the teacher’s role to place restrictions or limits on the students to ensure that they do not perform activities that are beyond their skill capabilities or those which they have not been trained to do.
¶ 255 Pedagogically, I have found the approach taken by Romanuik inadequate to the task of ensuring that the activities taught or demonstrated to the students correlated with the skill levels of the students. The evidence shows that Romanuik did not approach his teaching of gymnastics in the same manner as he approached the other segments of the physical education curriculum. First, he delegated a large part of the demonstrations to Andy, who was clearly at a higher level of skill than the rest of the students, yet who was perceived by the students to be demonstrating skills which they should attempt. Second, this factor combined with a lack of supervision and instruction about the limits to be imposed on students relating to their level of skill, and a failure to take the students through the proper progressions, resulted in the students attempting manoeuvres which were often of a degree of difficulty considerably in excess of that suitable to their age, condition and level of skill.
¶ 256 The Curriculum Guide sets out four levels of skill which relate to the proper sequence of progressive training through which students should be taken in order to develop their capacity to safely attempt manoeuvres having a higher degree of difficulty. Some of the manoeuvres demonstrated to the students by Andy in which Romanuik acquiesced were not suitable to their age, condition, or level of skill and were not, according to the Curriculum Guide, proper activities for them to attempt until they had first progressed satisfactorily through the earlier levels.
¶ 257 It is clear that the partial back salto attempted by the Plaintiff was an activity unsuitable to her age, condition, and level of skill. Accordingly, Romanuik’s failure to prevent the Plaintiff from attempting that manoeuvre, particularly after Denise’s failed attempt, was a cause of the Plaintiff’s accident. Had Romanuik discharged his duty in this respect, the Plaintiff would not have attempted nor would have been permitted to attempt the manoeuvre which paralysed her.
(ii) The Causal Impact of Failing to Ensure Progressive Training
¶ 258 The second criterion in Thornton is that the teacher is required to ensure that his students are progressively trained and coached to perform each activity in order to avoid danger. This requirement is also mandated by the Curriculum Guide which has a section entitled “Progressions” which says, inter alia (at p. 21):
The progressions of the activities which follow are sequentially developed continua of skills. Each progression has been organized into four levels. Each level may serve as a stage to introduce and develop some of the necessary skills.
…
2. The levels suggested should not be tied to grade levels as they merely represent a suggested sequence. Activity instruction normally begins with simple activities and progresses to the more complex. Starting points and progressions are, however, dependent upon individual participants and are not necessarily determined by grade level. Natural ability and skills gained from previous learning experiences both in and out of school need to be assessed in order to develop a program based upon students’ needs.
¶ 259 I have found that Romanuik failed in his duty to teach or ensure that proper progressions were performed by the class or by the Plaintiff. The evidence given by all the students was that they did not understand that they should be moving through a set of progressions. Instead, they were permitted to advance directly to whatever level of difficulty they believed they could achieve. I have found that when the Plaintiff attempted to perform the partial back salto off the box horse she could not possibly have known that she should have learned an entire series of progressions before making such an attempt. Causally, then, it follows that had the Plaintiff been made aware of the need to advance carefully through her progressions, and had Romanuik ensured through proper instruction and supervision that his students understood the nature of and were proceeding through the requisite progressions, the Plaintiff would not have attempted such a difficult and highly dangerous manoeuvre approximately 20 minutes into only her second day of training. Accordingly, Romanuik’s breach of this Thornton criterion is also a cause in fact of the Plaintiff’s accident.
(iii) The Causal Impact of the Equipment Configurations
¶ 260 The third Thornton criterion relates to the equipment configuration. I have found that the box horse station was improperly configured because the presence of the springboard and a crash mat was improper and the box horse was too high. I find it significant that the box horse was at full height and that the Plaintiff’s experts agreed that a full height box horse was inappropriate given the level of skill possessed by the students. The configurations of each station and the activities performed thereon breached the standard of care. Therefore, the hypothetical question here is whether or not the Plaintiff would have attempted the manoeuvre if there had been no crash mat or if the box horse had not been at full height.
¶ 261 Justice McLachlin stated in Arndt, supra, that evidence at trial by the Plaintiff as to what she may have done, as well as evidence about her mind-set at the time she made the decision relating to the accident are both relevant to the inquiry. The Plaintiff’s evidence in direct examination about the box horse configuration and how it affected her decision to proceed is repeated here for ease of reference (p. 743, l. 23 to p. 744, l. 5):
Q. What did you think of – how far was this crash mat below the box horse that you were on?
A. A couple of feet.
Q. And what did you think of that crash mat, how did you feel about that?
A. I could never see myself doing an aerial exercise without the crash mat being there. It was a soft spot to land.
Q. Did you feel safe completely in that mat or not?
A. Yes, I did. I felt safe.
¶ 262 I attach considerable importance to the configuration of the box horse station at the time of the accident, in particular the presence of the crash mat which gave the Plaintiff a false sense of safety and security and without it the Plaintiff would not, in my view, have attempted the manoeuvre. Based on a balance of probabilities I am satisfied that “but for” the presence of the crash mat the Plaintiff would not have performed the manoeuvre. To find otherwise would be to assume that the Plaintiff would have been willing to attempt a partial back salto and land on a thin tumbling mat on her stomach 4 feet below and behind her.
(iv) The Causal Impact of Incorrect Supervision
¶ 263 The final Thornton criterion is correct supervision. I have found that supervision requires more than mere presence in the gymnasium, it involves an element of control which manifests itself in a duty to ensure that students do not attempt activities for which they have not been adequately trained. I am aware that some of the students testified that Romanuik instructed them that they should work within their own ability when creating the routines for which they would be graded, but I have found that this instruction provided the students with no significant direction nor any defined limits. The students were not trained, nor did they have sufficient experience upon which to effectively judge what their ability might be, particularly since they were not being taken through the correct progressions. The Plaintiff testified at trial that at the time of the accident she perceived herself to have had the requisite skills and knowledge to complete the partial back salto but with hindsight she now realizes that she did not. I find that this perception was further enhanced by the lack of clearly defined parameters by Romanuik and colored by the competitive, aggressive and adventuresome environment created in his class in which he acquiesced. It was within this context that the Plaintiff was expected to judge the limits of her skills.
¶ 264 In addition to the general supervisory control over class activities which Romanuik was required to exercise, he also had a duty to directly supervise students who were attempting new activities or performing inherently dangerous ones. Since activities at all three stations were inherently dangerous it was impossible for Romanuik to properly discharge his duty to directly supervise his students. In fact, Romanuik chose to supervise the high bar station and not to supervise the box horse station at the time of the accident.
¶ 265 I am of the view that had Romanuik discharged his general and direct supervisory duties the Plaintiff would not have been permitted to attempt the manoeuvre which resulted in the accident. The accident is therefore causally related to a lack of proper supervision of the Plaintiff.
¶ 266 Specifically, I find that Romanuik at the very least saw Denise’s landing, and this should have caused him sufficient concern to stop all activity, ascertain what manoeuvre she had performed, and to caution the students not to perform a similar activity. Having chosen not to embark upon that course of conduct, he acquiesced in the activity performed by Denise leaving the Plaintiff with only one conclusion, that this activity was permissible. To use the words of Justice McLachlin in Arndt, the “situation, circumstances and mind-set” of the Plaintiff at the time she made the decision, given the type of supervision she had received, was that the manoeuvre was acceptable. Had Romanuik discharged his supervisory duty in this respect, it is clear that the Plaintiff’s mind-set would not have been that the manoeuvre was acceptable. Even though the Plaintiff hesitated momentarily before attempting the partial back salto, I view her hesitation as a realization that, although a difficult manoeuvre, if successful, she would secure as good or better mark than her classmates. With proper supervision she would have been deterred from attempting the manoeuvre, knowing it was not a permissible activity. Failed supervision is therefore another factor which was directly and causally linked to the accident.
¶ 267 The Defendants have argued that the Plaintiff failed to obey clear instructions which, if followed, would have prevented the resulting injury. I do not find that to be a tenable submission. I have already made a finding that in order to reign in the students’ zeal there had to be clear instructions. No such clear instructions were provided by Romanuik. The evidence is that there was very little instruction at all from Romanuik. Accordingly, the students, who were largely inexperienced in gymnastics and who were given inadequate instruction were expected, in an improperly supervised competitive environment, to make judgement calls about their personal skills and abilities to perform manoeuvres on improperly configured equipment. It is true that the Plaintiff did, as the defence argued strongly, make the critical judgement to attempt the partial back salto, and did this of her own volition. I find, however, that she was placed in a situation where she was required to make that judgement call without having been provided the proper training or information necessary to come to a correct, or even a reasonable conclusion.
6. The Cumulative Effect of the Defendants’ Breaches
¶ 268 The presence of any one of the breaches as noted above was itself sufficient to have caused the accident. However, these breaches appear to have combined in a synergistic manner such that each of the breaches augmented the others and this synergistic interaction in my view placed the Plaintiff at risk. For example, although the presence of the crash mat at the box horse station and Romanuik’s failure to take the students through their proper progressions were each breaches of the standard of care, when these two factors were combined, they worked together to increase the degree of risk of injury. Add a third factor, the environment Romanuik created by instructing the students to be creative and that they would be graded on this creativity, enhancing their already competitive spirit, the risk is augmented yet again. Therefore, although I find that any one of the identified breaches would clearly reach a causal threshold beyond a balance of probabilities, if one further considers the straight additive effect of the breaches, it is taken well beyond that threshold.
¶ 269 Accordingly, given that Romanuik’s failures were causally operative up to and including the time of the accident, I find that the Defendants’ failure to meet the requisite standard of care was, on a balance of probabilities and well beyond, the cause in fact of the Plaintiff’s unfortunate accident and the injuries and damages suffered by her.
E. Voluntary Assumption of Risk
¶ 270 In Crocker v. Sundance, supra, Wilson, J. for the Court said at p.1202:
Since the volenti defence is a complete bar to recovery and therefore anomalous in an age of apportionment, the courts have tightly circumscribed its scope. It applies only in situations where the plaintiff has assumed both the physical and the legal risk involved in the activity. (See Car and General Insurance Corp. v. Seymour, [1956] S.C.R. 322; Dube v. Labar, [1986] 1 S.C.R. 649).
¶ 271 In Hall v. Hebert, [1993] 2 S.C.R. 159 McLachlin, J. at p.173 describes the test as follows:
… The defence of volenti is available only if it can be established that the plaintiff, with knowledge (objectively determined) of the risk, freely accepted it: Dube v. Labar, [1986] 1 S.C.R. 649, and Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186. It is narrowly applied: Car and General Insurance Corp. v. Seymour, [1956] S.C.R. 322, Lehnert v. Stein, [1963] S.C.R. 38, and Sundance, supra.
¶ 272 By virtue of the fact that the instruction was conducted within the classroom environment I am not satisfied the Plaintiff assumed either the physical or legal risk. The volenti defence has no application here.
F. Contributory Negligence
¶ 273 Notwithstanding the establishment of a duty of care, and breach of the appropriate standard of care and resulting damages, a plaintiff’s claim may be reduced if the plaintiff contributed to the resultant damages. The amount of recovery by the plaintiff in such circumstances is reduced proportionate to the determined fault of the plaintiff. As a result contributory negligence is a form of defence and as Mr. Justice Alan M. Linden has noted in Canadian Tort Law, 6th ed. at p. 453:
… the rationale behind [this defence] is that the law should assist only those persons who are deemed worthy of its protection. Thus, individuals who are negligent with regard to their own safety are denied the protection of the law in whole or in part.
¶ 274 The Defendants have the burden of proof to establish that the Plaintiff was contributorily negligent: Stein v. Hudson’s Bay Company (1976), 70 D.L.R. (3d) 723 (B.C.S.C.); Mann (Next Friend of) v. Calgary (City) (1995), 27 Alta. L.R. (3d) 405 (Q.B.). Further, the contributory negligence must be a proximate cause of the plaintiff’s loss.
¶ 275 In advancing the submission that the Plaintiff is guilty of contributory negligence, the Defendants submit that the Plaintiff attempted a partial back salto without the permission, knowledge or instruction of Romanuik. Further they submit that the Plaintiff failed to obey the explicit instructions of Romanuik. In performing a dangerous manoeuvre for the first time, without assistance, the Plaintiff exercised a lack of judgment and failed to take the proper steps to ensure her own safety. The activity which she undertook was not required nor instructed and was undertaken on her own initiative.
¶ 276 In Thornton, supra, the trial judge was faced with a determination of whether a 15 year old plaintiff was contributorily negligent because he attempted a jump from a full height box horse 6 feet out onto the end of a springboard in order to effect a single somersault, thereafter travelling approximately 17 feet through the air overshooting all crash pad matting. Mr. Justice Carruthers, at p.635 of his reasons whilst reviewing the decision of the trial judge on this issue stated:
Should he be taken to possess the same familiarity and knowledge of the equipment as his instructor? The answer is clearly No. He had neither the experience nor the qualifications. In view of his lack of familiarity and knowledge he ought not to be taken to know that what he was attempting to perform involved any threat or harm. It necessarily follows that there was no need for him to go to Edamura for guidance or assistance. In the circumstances I find the defendants have failed to establish contributory negligence.
¶ 277 The defence suggested that the Plaintiff tried to perform a back salto several years before, on her front lawn, but failed. Therefore, because of this experience, she should have known she was incapable of the exercise she tried to perform off the box horse, namely, the partial back salto. I do not accept this submission. The exercise was quite different – she was being held by two friends while she tried to flip backwards standing on the lawn, not on a gymnastic apparatus. I cannot say that, because of the failed attempt several years before, the Plaintiff should have known she was attempting an exercise of which she was incapable. She cannot be said to possess the same familiarity and knowledge of the equipment that her instructor had or should have had. She had neither the experience nor the qualifications. In view of her lack of familiarity and knowledge, as a direct result of Romanuik’s omissions, the Plaintiff ought not to have been expected to know that what she was attempting to perform involved any threat or harm. It was the responsibility of Romanuik to alert her to this risk and set restrictions on the activities performed in his class. He failed to do so.
¶ 278 Rather, Romanuik encouraged adventuresome activities with his directive of “Be Creative”. He created an atmosphere of competitiveness in his classroom. If a difficult manoeuvre was performed by one student (such as was done by Denise) it was foreseeable given the classroom environment, that others would endeavour to replicate or endeavour to exceed such a manouevre’s level of difficulty as the Plaintiff so attempted. The Plaintiff overcame her reluctance and hesitation because of the aggressive spirit and competitive behaviour Romanuik fostered in the class. The Plaintiff attempted to perform this activity unrestricted and dreadful consequences flowed. Therefore, in these particular circumstances the Defendants have failed to establish that the Plaintiff was contributorily negligent to any degree whatsoever.
V. ASSESSMENT OF DAMAGES
A. Non-pecuniary Damages
¶ 279 The non-pecuniary damages for pain and suffering and loss of amenities of life have been established by agreement at $255,000 (4771).
¶ 280 The Plaintiff is entitled to recover interest pursuant to the Judgment Interest Act, S.A. (1984), c.J.-0.5, as amended, on this award from the date of loss: Jacobs v. McLaughlin and Calgary (City) (1986), 71 A.R. 104 (Q.B.).
B. Pecuniary Damages
¶ 281 There are three basic components of the pecuniary loss claim. They are as follows:
1. Loss of past income;
2. Loss of future income; and
3. Cost of future care.
¶ 282 Before I embark on my review of the pecuniary damages, considering the special circumstances of this case, I will review a typical day in the life of the Plaintiff, her extra-curricular activities and her medical condition.
1. The Plaintiff’s Typical Day
¶ 283 On a typical university day, the Plaintiff awakens at 6:00 a.m. when her personal care attendant comes to her apartment to assist with her morning routine. This routine consists of self-catheterization, bathing, personal care, dressing and eating breakfast. The Plaintiff does her own stretching in bed.
¶ 284 As to the catheterization the Plaintiff inserts the catheter into her meatus while the attendant ensures that the other end of the catheter is in the kidney basin. Upon completion, the Plaintiff pulls out the catheter following which the attendant cleans up, helps dress her lower extremities, then cleans the catheter equipment (2433). This can be done in 20 minutes but sometimes takes up to 30 minutes.
¶ 285 Every second day the personal care attendant assists the Plaintiff with her bowel routine (2573). This includes assistance in transferring and positioning the Plaintiff on the raised toilet seat, cleaning her up, and cleaning the device used for the bowel routine (2574).
¶ 286 This entire morning routine takes about two hours. After the personal attendant leaves, the Plaintiff does her own personal grooming, hair and makeup. She then leaves for school (2575).
¶ 287 Depending on the location of the Plaintiff’s classes, she either gets to class herself or is helped by a volunteer. Her volunteers are generally reliable, but there have been times when the Plaintiff has missed exams or classes because the volunteer does not show up (2576).
¶ 288 At 12:00 noon, the Plaintiff returns home for lunch and again her personal attendant assists her with the catheterization, lunch preparation and a small amount of housekeeping. If the Plaintiff were incontinent in the morning, she takes time to change her clothing (2578). Depending on her schedule, the Plaintiff either returns to school, goes to the gym or stays home (2579).
¶ 289 The personal care attendant returns to the Plaintiff’s apartment between 4:00 and 5:00 p.m. to assist with catheterization, meal preparation and clean up. The attendant helps the Plaintiff prepare her meals by cutting hard vegetables and meat, and lifting hot pots from the stove (2581).
¶ 290 Until her personal attendant returns at bedtime around 9:30, the Plaintiff studies or spends time with her boyfriend and friends (2582).
¶ 291 At 9:30 p.m. the personal care attendant helps the Plaintiff prepare for bed, by assisting her with her catheterization and positioning.
¶ 292 On a typical day the Plaintiff may experience fatigue, leg spasms, incontinence and bladder infections. The Plaintiff testified that she experiences incontinence on average two or three times a week during the day as well as two or three times a week in the evening (2583). She suffers bladder infections every five to six weeks, and when this happens she is incontinent approximately four times a day (2583).
¶ 293 When the Plaintiff is not attending university her typical day includes visits to a gymnasium (up to three times a week), visiting her doctor, friends, and spending time with her boyfriend.
2. Extra Curricular Activities
¶ 294 The Plaintiff hopes to avoid being stereotyped as a quadriplegic and strives to maintain more control over her life and her activities. She volunteers on committees and organizations associated with her profession. She also participates in organizations that deal with her personal interests as this involvement keeps her mind active. The Plaintiff plans to continue to work out regularly and wheelchair race. She enjoys the racing activity and has many friends associated with the sport.
3. The Plaintiff’s Medical Condition
¶ 295 Dr. Geisler was properly qualified before me as an expert witness with a specialization in the field of rehabilitation and physical medicine capable of giving expert opinion evidence on behalf of the Plaintiff as to the nature and extent of the Plaintiff’s injuries and how the Plaintiff’s residual health and medical disability might affect her employment (1944-1945).
¶ 296 Dr. Geisler was certified in physical medicine and rehabilitation by the Ontario College of Physicians and Surgeons in 1959. He taught at the University of Toronto in the Faculty of Physical Medicine and Rehabilitation from 1971 to 1991 and presently has the status of Professor Emeritus (2004).
¶ 297 Dr. Geisler’s present practice involves the treatment and care of neurologically disabled persons. Ninety percent of Dr. Geisler’s patients have spinal cord injuries (2004-2005). Dr. Geisler testified that he has been privileged to study, treat and care for spinal cord injury patients for over 45 years and has followed some of these patients for over 40 years (2010). In his view, everything a spinal cord injured patient does takes “a little bit more time, a little bit more energy, and a little bit more zip” (1995). Dr. Geisler emphasized that a spinal cord injury never goes away. Spinal cord injury patients cannot live with the hope that tomorrow they will be cured or that they will improve (1995).
¶ 298 Dr. Geisler testified that a patient is said to be an incomplete or partial quadriplegic if some modalities of sensation or motor power continue above and below the level of the injury (1947). If all modalities, motor and sensory, above and below the level of injury are identified as non-functioning on examination, then the patient is said to be a complete quadriplegic.
¶ 299 Dr. Geisler assessed the Plaintiff’s accident as traumatic and testified that the proper terminology of the Plaintiff’s disablement is “incomplete traumatic quadriplegia” (1951).
¶ 300 Dr. Geisler examined the Plaintiff on May 18, 1995 and July 24, 1997 and prepared medical reports relative to these examinations. Dr. Geisler testified that the Plaintiff’s physical condition in July 1997 was relatively unchanged compared to his May 1995 examination (1985).
¶ 301 Dr. Geisler found that the Plaintiff had some ability to function on her own following the accident, but had lost her mobility and agility functions (1951). Dr. Geisler testified that the Plaintiff could not stand, walk, run or jump and was confined to the use of a wheelchair for mobility (1952).
¶ 302 The Plaintiff had lost normal feeling in most of her body, which Dr. Geisler described as a diminished feeling, and that some areas of the Plaintiff’s body were virtually absent of feeling. Dr. Geisler was of the view that the Plaintiff had suffered a significant loss insofar as feeling is an important component of daily activities (1952).
¶ 303 Further, the Plaintiff had lost the normal function of her bowel and was dependent upon the use of suppositories and varying amounts of laxative or stool softeners to promote bowel emptying. The Plaintiff was equally dependent upon gadgetry to effect bowel emptying such as the insertion of a particular type of mechanism into the opening of her bowel to stimulate a reflex action (1952).
¶ 304 Dr. Geisler testified that the Plaintiff had lost the normal function of her bladder and effected bladder emptying with the process of intermittent catheterization (1952). Because of the Plaintiff’s paralysed bladder, the Plaintiff was at risk to a variety of complications, the most significant being the danger of recurring infections, which she had already experienced (1953).
¶ 305 Dr. Geisler was of the view that the Plaintiff was greatly restricted in her daily activities. He testified that the Plaintiff had lost the agility and dexterity of her hand functions (1953). Dr. Geisler stated that the Plaintiff had lost the ability to pinch. The muscles that subserve the dexterous function of pinch could no longer be enervated because the nerve supply had been destroyed. For the same reason the Plaintiff had lost the ability to actively grasp in a normal manner (1953). Dr. Geisler testified that the Plaintiff could effect a trick grasp as a result of physiological changes which occur in the hands of the quadriplegic patient where muscles become shortened. The secondary muscles, together with the shortened muscles in front of the fingers, bring about a degree of closure of the fingers. Dr. Geisler was of the view that the Plaintiff would have some type of closing ability, but it would be far from an active grasp (1954). Whatever grasp and pinch were necessary, they were greatly restricted in the Plaintiff’s day-to-day activities; for instance, the Plaintiff could not tie a bow.
¶ 306 Dr. Rocheleau was qualified as an expert witness with a specialty in physical medicine and rehabilitation capable of giving expert opinion evidence. He was called on behalf of the Defendants. Dr. Rocheleau testified that the Plaintiff does not enjoy active finger extensions even though, in his view, she has certain movement because of the tenodesis grip (3034).
¶ 307 When Dr. Geisler saw the Plaintiff in 1997 he found she was “feeling pretty good” (2014), not depressed, appeared to be psychologically in good health but was complaining of pain (1957). At that time Dr. Geisler did not recommend or prescribe any anti-depressants or anti-anxiety medications (2014).
¶ 308 The Plaintiff complained of pain in three locations: the front of the left hip in her lower lumbar area, the paralumbar area to the left, and her neck to the right of the mid-line (1957-1958). Dr. Geisler testified that the pain in the lumbar and the paralumbar area was due to the Plaintiff’s twist in her back or scoliosis (1958). He opined that scoliosis strains one side of the back more than the other (1958). The cause of scoliosis of the spine in an incomplete quadriplegic, Dr. Geisler testified, was muscle tightness or spasm over which the Plaintiff has no control, which fluctuate, in intensity at variable periods of time making the spine bend (1958). Dr. Rocheleau was of the view that such a curvature is a common occurrence for a spinal cord injured person but opined that the Plaintiff’s curvature was “not tremendous” (3020). Dr. Rocheleau found it critical that the Plaintiff have a good wheelchair and seat (3020).
¶ 309 Dr. Geisler testified that the Plaintiff also has a neck injury as a result of the accident. Some of the pain in the Plaintiff’s neck is mechanical in nature. Further, she suffers pain in the area of the fractured dislocation (1959).
¶ 310 By 1997 the Plaintiff had developed a complication of the spinal cord injury, the deposition of new bone formation around the hip. This now produces some degree of restricted hip motion (1959). Pain discomfort would be expected in incomplete paraplegia with some degree of sensory retention (1959). Dr. Geisler did note that notwithstanding the pain, the Plaintiff was not taking analgesic or painkilling medication (2015). Dr. Rocheleau testified that the Plaintiff indicated that she suffered some discomfort from pain (3028). Dr. Rocheleau’s interpretation of the discomfort is that it constitutes low level pain though not severe enough to influence her ability to function (3028).
¶ 311 According to Dr. Geisler the most significant component of the Plaintiff’s pain emanates from her neck which he defined as neuropathic pain. In his experience this complication occurs in 90 percent of spinal cord injured persons (1959). According to Dr. Rocheleau, neuropathic pain is an “all-over pain” that is hard to define (3029 – 3030). Dr. Rocheleau opined that its occurrence could cause a “terrible problem” but that the Plaintiff did not have this problem (3030). Contrary to Dr. Geisler’s opinion, in Dr. Rocheleau’s experience, neuropathic pain occurs in only 10 to 20 percent of spinal cord injured persons (3030).
¶ 312 Dr. Geisler testified that the severity of the scoliosis in July 1997 “did not appear to be great” (1961). However, he was of the view that the Plaintiff had to be monitored because of the risk of ongoing complications to the back (1961). If one side of the buttocks were lower than the other and received more pressure, it is likely the Plaintiff would suffer skin breakdown and experience the danger of outside infection impermeating the body. Important tissue proteins would be lost (1962). The tilt of the pelvis (pelvic obliquity) must also be watched. If it were to progress to the point where one side of the Plaintiff’s bottom becomes more vulnerable to pressure sores and skin breakdown, the Plaintiff’s attending physicians and surgeons would have to make a decision as to the necessary intervention (1962).
¶ 313 Dr. Geisler was of the view that the Plaintiff’s hip pain emanates from the development of ectopic calcification and the pain associated with the injury to the spinal cord (1963).
¶ 314 Dr. Geisler opined that if the ectopic calcification of the Plaintiff’s hip were to continue, and in his experience most patients do, the Plaintiff would have difficulty with peritoneal care of her bladder and bowel. She could not be properly postured for catheterization and bowel movements (1963-1964). Strategies would then have to be adopted to help the Plaintiff overcome this limitation. The Plaintiff must be monitored to determine how rapid the progression is and whether or not it can be reversed (1964). However, Dr. Geisler was of the view that the implementation of these strategies was premature given that the bone tissue was probably not yet mature (1964).
¶ 315 Dr. Geisler testified that it would be unfair to say that because the hip was the only situs of calcification since the accident in 1991, the Plaintiff would not experience calcification in any other joints in the future. He testified that she was at risk continually “anywhere along the line” (1964).
¶ 316 Because pain varies among individuals, Dr. Geisler found it difficult to determine the severity of the Plaintiff’s pain (1965). In trying to understand pain better, Dr. Geisler has his patients measure pain on a linear scale of 0 to 10, 10 representing severe pain and 0 representing no pain (1965). The Plaintiff’s pain fluctuates between 1 and 8 (1965). The neck pain fluctuates from 0 to 7 while the hip pain fluctuates between 0 and 8 (1965). According to Dr. Geisler the neuropathic pain will fluctuate and worsen during particular setbacks in a person’s health (1965). Dr. Geisler advised that the pain would worsen if the Plaintiff were emotionally stressed or if there were a lung, skin or bladder infection (1965). The Plaintiff’s pain might also worsen if there were an incomplete bowel emptying and bowel impactment; the development of a bladder stone, piles or haemorrhoids, an ingrown toenail or a pressure sore; or the breaking of a leg (1966).
¶ 317 Dr. Geisler testified that 90 percent of patients with neuropathic pain can contain the pain with the use of common analgesics, acupuncture, electrical stimulation and by paying attention to their health complications (1966). However, 10 percent of patients fail to respond to these common types of analgesics and processes. Within that 10 percent other strategies such as antidepressant medication would be necessary because, in Dr. Geisler’s opinion, with the passage of time the pain becomes very demoralizing (1966).
¶ 318 If the Plaintiff’s pain worsens and the Plaintiff fails to respond to the strategies, the only neurosurgical strategy would be “an attack on the Plaintiff’s brain” (1967). The neurosurgeon could not attack her spinal cord because the Plaintiff’s injury is too high and the neurosurgeon would have an insufficient operative area (1967). The probability of success with such an intervention is less than 50 percent, with danger implicit in the technique itself (1968).
¶ 319 Dr. Geisler does not recommend treatment modalities such as acupuncture and transcutaneous nerve stimulators because the Plaintiff’s pain does not appear to warrant such an application (2018).
¶ 320 Dr. Geisler was asked how much time it would take for the skin of an incomplete quadriplegic to heal if a pressure sore were to occur (1991). Dr. Geisler testified that if a pressure sore began, the well-trained patient would have to take pressure off the area at the first sign of redness and remain in bed for one to three days to permit the bedsore to heal (1991-1992). If the bedsore were to become infected with an underlying abscess and osteomyelitis formation, the Plaintiff would be restricted to bed for several months and might require surgical intervention (1992).
¶ 321 In Dr. Rocheleau’s view the treatment of skin breakdown varies according to the severity of the breakdown (3022). If only superficial, it could sometimes be resolved by an alteration in the seat cushion, less sitting time, or a specialized skin covering to the buttock (3022). Dr. Rocheleau stated that the next alternative is bed rest and staying off the area until it heals (3022). When asked if this would require 24 hour care, Dr. Rocheleau opined that an air-cycle mattress could be used (3024), (placed atop the existing mattress at an approximate cost of $1,000). This mattress is adequate for cases of small ulcerations. If a more serious ulceration develops, an air-cycle bed can be rented for approximately $500 to $600 a month (3024).
¶ 322 Dr. Geisler testified that the Plaintiff’s ability to work would be impacted if she were to experience the flu or associated symptoms. The spinal cord injured patient’s fever may be more substantial and, therefore, the methods of dealing with the fever more complex (1992). The flu could affect the Plaintiff to such an extent that she would require an alcohol or tepid sponge bath to decrease her temperature (1993). As the Plaintiff has lost her ability to lose heat in a normal fashion, she could be in danger of a substantial temperature increase. If her temperature did not promptly resolve, she would require several days of bed rest. She would die if her temperature reached 107[degrees] (1993).
¶ 323 Dr. Geisler testified that spinal cord injury patients such as the Plaintiff are more susceptible to broken bones. Disuse over time causes the bones to soften (1993). With these softened bones, small amounts of force brought to bear upon a long bone may cause it to fracture (1994). To illustrate, Dr. Geisler referred to the scenario of a caregiver moving the Plaintiff’s leg to insert a catheter and using a bit more force than usual with the result that the Plaintiff’s hip breaks because of the ectopic calcification (1994).
(i) Spasms
¶ 324 Dr. Geisler testified that the Plaintiff’s spasms were manifested by involuntary muscle movements over which the Plaintiff has no control. Dr. Geisler opined that spasms are more often a disadvantage, but some patients do learn to use them with trick manoeuvres as an aide to empty their bladder (1969).
¶ 325 Spasms can become exceedingly troublesome if they occur suddenly and move the body into a faulty posture. Dr. Geisler was of the view that a spasm could throw a person from a bed or wheelchair and cause a broken leg (1969). Spasms can also make it difficult for caregivers to posture legs for bladder and bowel management (1969).
¶ 326 Dr. Geisler found that spasms can interfere with breathing when the spasm is particularly severe around the chest and the abdomen (1969). Spasms can mingle with neuropathic pain and be very unsettling (1969). Dr. Geisler was of the view that the Plaintiff’s spasms were not severe (1970), but nonetheless abnormal (2018).
¶ 327 Dr. Geisler was unaware of any episodes of the Plaintiff falling out of the bed or her wheelchair due to spasm problems (2018).
¶ 328 Dr. Geisler advised the Court that there were many conditions that might intensify the Plaintiff’s spasms such as an infection from any cause – developing appendicitis, a bladder stone, an unrecognized fracture, spontaneous fracture in a demineralized bone, further progression of ectopic calcification, emotional disquietude and a further pro- gression of the Plaintiff’s neurological state wherein her condition of incomplete quadriplegia would progressively become complete quadriplegia (1971). According to Dr. Geisler an increase in spasms is an early sign of these occurrences. Further, temperature changes may augment spasms because the sensory input that goes into the body cannot be counterbalanced given the Plaintiff is without normal counter-balancing reflexes in her spinal cord (1971).
¶ 329 Dr. Geisler indicated spasticity increases could be a sign of increased damage to the spinal cord but agreed that the Plaintiff’s spasms are presently mild in nature (2021-2011). Dr. Geisler opined that a person may well be able to deal with an increase in spasms by augmenting the dose of antispasmodic medication until they can no longer increase the dose due to the side effects (2023) or until a resistance develops to that particular medication (2024). If the antispasmodic failed to work, the spinal cord injured patient would have to turn to surgical intervention (2024).
¶ 330 Dr. Rocheleau testified that spasticity can be mild, moderate or severe (2954). The spasticity experienced by the Plaintiff is not necessarily a negative factor in Dr. Rocheleau’s view (2958). If a person has spasticity, it keeps the muscle bulk intact. Dr. Rocheleau was of the view that the Plaintiff has been fortunate in two ways. Her mild spasticity has preserved her muscles as well as preserved her sensation in that she can feel some pain and is aware of some pressure below the level of her injury which protects her from skin breakdown (2958).