(ii) Bowel and Bladder Complications
¶ 331 At the time of the Plaintiff’s July 1997 examination, Dr. Geisler testified that she had a crampy abdominal discomfort and the sensation of fullness (1972). Dr. Geisler stated that the Plaintiff’s bowel was not moving as most normal persons given that she had a bowel routine every second day (1972).
¶ 332 Dr. Geisler testified that the Plaintiff could not have a bowel routine in a regular fashion and had to have a raised padded toilet seat requiring mechanical adaptations (1972).
¶ 333 At the time of the July 1997 examination, the Plaintiff was not having any accidental involuntary bowel movements after a regular bowel movement (1973). If that were to happen, the patient would have to seek medical help as to whether certain additives should be taken to better cleanse the bowel and thereby avoid such accidents (1973).
¶ 334 With regard to the Plaintiff’s bladder, Dr. Geisler found that the Plaintiff experienced some abnormal spasms and increased leg spasms before her bladder emptied. She was developing a sympathetic hyperreflexia which he defined as a “very dangerous complication in spinal cord injured patients. It is a complication that is usually associated with the bladder but may be associated with a variety of other complications that the patient suffers” (1974).
¶ 335 Dr. Geisler advised that if the bladder empties incompletely or prepares to be emptied but is not emptied due to a bladder infection or a kidney stone, a reflex causes the blood vessels in the abdomen to clamp down which in turn results in an increase in the Plaintiff’s blood pressure. If the blood pressure rises to a dangerous level, patients may suffer sudden haemorrhages and strokes (1974).
¶ 336 Dr. Geisler testified that at the time of the July 1997 examination, the Plaintiff was losing control of her urine and experiencing urinary tract infections on an average of every six weeks (1977). Dr. Geisler opined that they could be treated but their recurrence continually add more injury to the bladder system. Over time this causes the lining of the bladder to thicken, decrease, and contract (1977). Dr. Geisler testified that this acceleration can occur from an indwelling catheter that remains in the bladder all the time rather than being removed intermittently (1977).
¶ 337 Recurring bladder infections can produce incompetence of the ureter (1977). If this happens when urine is forced to leave the bladder, instead of being excreted in the normal fashion, it moves towards the kidney (1978). This causes a kidney infection called pyelonephritis which is a dangerous complication that over time can lead to kidney failure (1978). Dr. Rocheleau’s testimony, however, was to the effect that the Plaintiff’s bladder infections were low grade, not hospital based and that there was no evidence that the Plaintiff has had pyelonephritis (2952).
¶ 338 Recurring urinary tract infections predispose the patient to a danger of bacterial invasion to the bladder which may cause blood poisoning or septicaemia (1978). Septicaemia is a significant cause of death in spinal cord injured patients, notwithstanding the use of antibiotics (1978).
¶ 339 Recurring infections are also associated with the passage of foul smelling urine and in this context the patient can easily become demoralized (1979). Dr. Geisler opined that the constant recurrence of urinary tract infections is a dreadful problem in women even with intermittent catheterization (1979).
¶ 340 Dr. Geisler testified that the Plaintiff had no headache or blood pressure problems at the time of trial, although the Plaintiff was starting to have these symptoms prior to a bladder infection. However, the Plaintiff thought that the headaches could be from another cause (2025-2026). In his experience, they are indeed associated with bladder changes such as the manifestation of hyperreflexia which her physicians would have to monitor (2026).
¶ 341 Dr. Geisler did not recommend that the Plaintiff be placed on blood pressure medication. It was not his role to prescribe as he was not her attending physician (2026-2027). Dr. Geisler may have advised the Plaintiff to contact her doctor and review this matter if the symptoms persisted (2027).
¶ 342 Dr. Geisler could not agree that the Plaintiff’s bladder incontinence was not a significant problem at the time of trial (2027). In his view the matter of incontinence could not be ignored as once a week was “just once too much and the Plaintiff would have to pay attention to this” (2028). In Dr. Geisler’s opinion, the Plaintiff seemed to be “getting away with it now but if it became twice a week it would be doubly frightening”. (2028). Dr. Geisler testified that incontinence is “bad” in female patients because of their inability to be fitted with any type of external device short of the catheter, and therefore the Plaintiff’s perineum would be constantly exposed to moisture, maceration, odour and break down (2028).
¶ 343 Dr. Geisler was of the view that intermittent catheterization, used to reduce the frequency of urinary tract infections in spinal cord injury patients, works better in men than women (2029). Even though it is used in women, they have a higher probability of recurring urinary tract infections than men (2029).
(iii) Ectopic Calcification and Hip Flexion Deformities
¶ 344 Dr. Geisler found no sign at the time of trial that the Plaintiff had ectopic calcification anywhere other than the hip (2019). In 1997 Dr. Geisler completed a range of motion testing on the Plaintiff’s hip and found a range diminution in the Plaintiff’s left side in the middle line of the lumbar area (2019-2020). The Plaintiff has bilateral hip flexion deformities of 20 degrees on the right and 25 degrees on the left (2020). A hip flexion deformity is a forward posturing of the leg which constitutes an abnormal position. If the Plaintiff were not a spinal cord injured quadriplegic, she could not walk with the hip flexion deformity because one leg would be off the ground and to walk, she would have to bend her body to lift her leg and hyper-extend her back. Dr. Rocheleau testified that the Plaintiff also had a bone graft taken from the left iliac crest region and opined that that probably was the stimulus for the formation of the extra bone (2961).
¶ 345 In Dr. Rocheleau’s view the likelihood is that the heterotopic ossification will not move to other areas of the Plaintiff’s body as it most commonly occurs within the first two months post-injury (2962).
¶ 346 The consequences of the progression of the hip flexion deformity will be to limit the Plaintiff’s posturing in bed were she to develop a pressure sore on her back (2020-2021). According to Dr. Geisler, the best way to treat a pressure sore on the back would be to have the Plaintiff lie on her abdomen. However, given her hip flexion deformities, she would experience breathing difficulties and discomfort (2021). Further progression of hip flexion deformities would limit the Plaintiff’s hip mobility and prejudice her bladder hygiene, especially in the presence of a concomitant ectopic calcification (2021).
¶ 347 Dr. Geisler did not find that the Plaintiff had a deep venous thrombosis which could result from a circulatory problem (2030). In the circulatory system of all spinal cord injury patients the size of the vessels that carry blood below the level of the lesion become smaller and atrophy. In Dr. Geisler’s words, like most of the organ systems below the level of the lesion, the muscles, bones, and blood vessels will atrophy (2031). However, Dr. Geisler testified that the Plaintiff is not showing any of the signs of atrophy in an adverse way (2031).
¶ 348 Dr. Geisler found it appropriate that the Plaintiff planned to attend the Seating Clinic for the resolution of her lumbar problems by securing a different seating arrangement in her wheelchair (2032). However, this may be only a temporary solution, and it may or may not resolve her problem.
¶ 349 Dr. Rocheleau testified that the Plaintiff’s health status in the past is the best predictor of her health status in the future (2960). He concluded that the Plaintiff would not encounter serious problems for the remainder of her life given her past six years post-injury health experiences.
4. Personal Care Attendance
¶ 350 Dr. Geisler was of the view that it is dangerous that the Plaintiff is not being turned at night because the Plaintiff is vulnerable to pressure sores or skin break down (1980). Dr. Geisler was of the view that at nighttime, a spinal cord injured patient should be turned every three hours (1980). If the Plaintiff could lie on her stomach she could get through six hours without being turned. However, as noted above, the Plaintiff cannot sleep on her stomach. Therefore, the Plaintiff should be turned at least once during the night if she retires at 11:00 p.m. and rises at 6:00 a.m. and if she were to go to bed at 8:00 p.m., she would have to be turned twice during the night (1980).
¶ 351 If the Plaintiff were to have a fever she would have to be turned every two hours because “hot skin” is more vulnerable to pressure sores or skin break down (1981). Further, if the Plaintiff were to become dehydrated or did not drink four litres of fluid a day, she would risk dehydration and skin break down under pressure (1980).
¶ 352 If the Plaintiff became malnourished her skin would be at a greater risk of breaking down (1980). If the Plaintiff were to become depressed and this developed into major depression, one of the hallmarks of depression would be a loss of appetite and a failure to eat (1981). Unless the Plaintiff had someone who encouraged her, the Plaintiff could gradually self-destruct simply by ignoring herself (1980). Dr. Geisler has observed patients who developed pressure sores and made no mention of this condition until they entered into a serious depressive state. They ignored proper dietary requirements and fluid in-take; they were in effect slowly committing suicide (1982).
¶ 353 Dr. Geisler testified that additional medical problems could arise if the Plaintiff were to wet her bed and lie in that wetness for a length of time during the night. The wet skin would become rapidly macerated and more vulnerable to pressure sores, which would have, in his opinion, “dreadful complications” (1982).
¶ 354 Dr. Geisler testified that even though the Plaintiff is vulnerable, she is presently protected from the pressure sores as she still has some sensory retention (1982). However, the Plaintiff’s sensory retention fluctuates in various parts of her body and she must not fall into the trap of believing that she does not have a problem because she still has some sensory appreciation (1982).
¶ 355 When asked if six hours a day of personal attendant care was adequate for the Plaintiff, Dr. Geisler testified that the Plaintiff was receiving about that much care now and was “surviving in a fashion” (1983). If the situation were simple in that the Plaintiff’s condition would not change, then six hours would be sufficient, but it is not simple (1983). The Plaintiff’s condition is always subject to change. For example, she is more susceptible to pneumonia because she cannot clear her airway (1983). The Plaintiff is also vulnerable to temperature aberrations as her body cannot loose heat and her temperature might then increase (1983). If the Plaintiff were confined to bed because of a respiratory tract or bad bladder infection, she would need 24 hour care as opposed to six hours daily (1983).
¶ 356 Further, the Plaintiff could be very embarrassed if she had an involuntary bowel movement while at school or work (1983) and would very likely wish to call someone to help her return home and assist with her clean-up (1984). Dr. Geisler was of the view that six hours daily is a minimal amount of time required to help the Plaintiff at this particular time in her life. This, however, does not take into account the various types of unknown circumstances that are likely to occur and could occur at any time (1984).
¶ 357 Dr. Rocheleau opined that attendant care should be applied according to the needs of the patient as every patient is different even if they have the same injury (2981). He stated that one could certainly conceive of the Plaintiff requiring more care if her circumstances changed (2982). For example, if she developed a medical problem particular to her condition, she may require an increased level of care (2982), or if she suffered an increase in bladder infections, or incontinence (2983). Dr. Rocheleau opined that the six to seven hours of care she currently receives has been sufficient (2983).
5. Life Expectancy
¶ 358 Relative to the potential complications the Plaintiff might experience in the future and how any of these might impact on her life expectancy, Dr. Geisler testified that a spinal cord injured person has a shorter life expectancy than those without a spinal cord injury (1986). In Dr. Geisler’s opinion the Plaintiff’s theoretically derived life expectation would be a further 53.3 years given her particular type of spinal cord injury. Dr. Geisler applied a relative mortality rate of 175 percent to the 1990-1992 Canadian Mortality Tables. Dr. Geisler advised that (at the time of trial) the Plaintiff was within weeks of her birthday and for statistical purposes would be considered to be 23 years of age. Therefore, the Plaintiff’s life expectancy could be to the age of 76.
¶ 359 Dr. Rocheleau testified that physicians who care for spinal cord patients are of the view that spinal cord injured persons’ life expectancy without any other intervening circumstances, is about 85 to 90 percent of the normal population (2976). Dr. Rocheleau did not testify as to what the Plaintiff’s “normal” life expectancy would have been but for the accident.
¶ 360 One of the reasons Dr. Geisler substantially revised his numbers with respect to life expectancy over the last few years is that medical advances in treatment for spinal cord injury patients, medical knowledge and understanding have reduced the likelihood and effect of some of the medical problems which impinged upon life expectancy of spinal cord injury patients in the past. Illustrative of this are recurring urinary tract infections, or other infections (2051).
6. Employment
¶ 361 According to Dr. Geisler the Plaintiff’s health problems seriously affect her future employment prospects. Dr. Geisler was of the view that by virtue of the complications of her injury, in the work context the Plaintiff would have to be intelligent, have ongoing good health, motivation to work, and the best possible education (1987). The Plaintiff possesses all four attributes in his opinion (2050). The Plaintiff has a stronger likelihood of finding gainful employment among spinal cord injured patients because of her university degree (1987). Dr. Rocheleau testified that there are “more types of work available for patients with quadriplegia who have a good intellect” (2992). In his view, technological breakthroughs will help open up employment avenues not previously available (2992).
¶ 362 Dr. Rocheleau agrees that the Plaintiff is quite capable of organizing her life with respect to employment (2993). He feels this is very important because work affords us our identity (2993). Looking at vocational statistics for quadriplegia, the Plaintiff is in the most advantaged group, because she has a high level of education, is Caucasian and female (2993). Dr. Rocheleau testified that this group usually works close to full-time hours, and that some work more than 40 hours per week.
¶ 363 Dr. Geisler testified that the Plaintiff may experience health problems at any moment in time and this would constitute an embarrassing setback for the Plaintiff (1989). To illustrate, Dr. Geisler referred to the scenario in which the Plaintiff may have a difficult time arriving at her employment on time (1989). In the usual course of events the Plaintiff would be expected to commence work at 9:00 a.m. It is possible for the Plaintiff to have an involuntary bowel movement just before she leaves for work as a result of a health problem. She would have to call her caregiver, be cleaned up, dressed and then proceed to work; she would inevitably be late (1989).
¶ 364 Dr. Geisler was mindful that the Plaintiff’s mobility is reliant upon a wheelchair and therefore her employer would have to be very understanding of her limitations (1990). For example, the Plaintiff may not be able to access her parking spot at work in the winter (1990).
7. Probability and Duration of Gainful Employment
¶ 365 In Dr. Geisler’s experience very few spinal cord injured patients are gainfully employed to the age of 60 because of their various problems.
¶ 366 Dr. Geisler testified that spinal cord injured patients often just “run out of steam, they give up, the jet power is lost” (1995):
And the spinal cord injured patient who may be – may have until a particular moment in time had a job, had a family, had a husband, and seemingly had everything going for them, suddenly give up. And that phenomena happens more commonly in the spinal cord injured patient that it happens in you and me, in my experience.
And along the way they find themselves withdrawn from society. If they are without support, they are without a philosophy of life, if they are without a mother or father, if they are without a husband or a wife and they become lonely, if they are without friends, loneliness is a dreadful, dreadful burden to have to bear. And they move into an area of despondency and despair and depression, and they are in danger of commuting [sic] a suicidal act. And that happens almost twice as commonly as it happens amongst us sitting in this courtroom, in my experience with my – with the patients that I have followed over a long period of time. So, all of these things impact upon her work probability. She will have a little bit more difficulty than you and I would have.
¶ 367 Dr. Geisler was of the view that access to regular attendant care may assist the Plaintiff to work on a more frequent basis because the Plaintiff would have a sense of security (1977). In his view, when spinal cord injured patients do not know what is going to happen on a daily basis, their worries and concerns are introspective and they are less likely to direct their attentions to gainfully rewarding work (1997).
¶ 368 In Dr. Geisler’s experience, a spinal cord injury patient such as the Plaintiff experiences more fatigue during the work day than an able-bodied person (1997). Dr. Geisler advises the spinal cord injured patient to enter into an agreement with the employer to permit a mid-day reprieve to get out of the office, lie down and have a rest for a half an hour (1995). In Dr. Geisler’s view, this protects the patient’s skin and “re-energizes” them (1998).
¶ 369 According to Dr. Rocheleau, fatigue is a common problem with plegia patients as they must expend a greater amount of energy to achieve the same physical output as non-plegia patients (2971). In order to assist with fatigue problems, patients must learn to pace themselves and obtain simple assistance for certain activities (2971). Dr. Rocheleau believes the Plaintiff when she says she experiences fatigue, because it is such a common complaint (2972).
¶ 370 Dr. Geisler agreed that whatever pain the Plaintiff experiences from time-to-time, it does not seem to have prevented her from being “an active participant in life” (2015).
¶ 371 According to Dr. Geisler certain relevant factors must be considered when assessing the Plaintiff’s future care needs. One is the seriousness of her disablement and the unlikelihood of her making significant recovery. Although small improvements are probable, they would best be achieved by having her return to the spinal rehabilitation centre for six or eight week periods each year for the next several years.
¶ 372 If the Plaintiff has tenodesis surgery and it is successful, Dr. Geisler is of the view that the Plaintiff may well be able to transfer in and out of bed without assistance. Also, she would be able to turn over more easily and safely.
8. Dr. Krause’s Study
¶ 373 Dr. Geisler agreed with the findings of the study co-authored by Dr. Krause and Dr. Ansen, (Employability After Spinal Cord Injury: Relation to Selected Participant Characteristics, Archives of Physical Medicine Rehabilitation, Volume 73, February 1992), that in the determination of employment the educational level of the patient is more important than her pre-accident occupation (2047).
¶ 374 Dr. Geisler agreed with Dr. Krause and Dr. Ansen that the most successful employment outcomes for spinal cord injured persons were obtained by Caucasian women under the age of 30 at the time of the injury, with incomplete lesions who had completed at least 16 years of education (2047). Dr. Geisler agreed that the Plaintiff fits each of these categories (2047). Notwithstanding the literature, it is Dr. Geisler’s view that first an opportunity must be given to the spinal cord injured patient to permit her to experience firsthand how she functions in a work environment as each situation is unique (2047).
¶ 375 Dr. Geisler agreed that at the present time, the Plaintiff does not appear to have any problems which would prevent her from looking for employment but emphasized that the Plaintiff does have medical problems (2049). When asked if the Plaintiff had any medical problems which prevented her from working, Dr. Geisler was of the view that this would be dependent upon the nature of the job. Intellectual work, for example, would be in the Plaintiff’s favour (2049). Considering the Plaintiff’s circumstances Dr. Geisler was of the view that the Plaintiff would be limited to work which did not require a lot of mobility (2049).
¶ 376 When asked by counsel for the Defendants if he would agree that studies as to employability levels of spinal cord injury patients already consider injury complications, Dr. Geisler responded that they are taken into account. However, each circumstance has to be examined and measured on its own merits (2050). If a spinal cord injured person experiences only one health concern, that is distinctly different from the situation in which there is a cacophony of health problems (2050).
¶ 377 Dr. Geisler agreed that there has been increased societal acceptance of people with disabilities which will continue to have a positive impact (2053). Also there have been significant technological developments to assist disabled patients, such as diaphragm pacers for people who have lost control of breathing muscles (2057). Dr. Geisler has several patients currently under his care who are on diaphragmatic pacing and phrenic nerve pacing (2057).
¶ 378 Dr. Geisler testified that the prosthesis that assists in emptying of the bladder through electrical stimulation has been around for a very long time and is further refined annually. It is, however, more prevalent in the United States than in Canada (2057).
¶ 379 Also, there are better wheelchairs, better public seating arrangements and sports facilities specifically designed for disabled people (2061). Dr. Geisler would also agree that computer technology is of major assistance, particularly in the employment context, for people with spinal cord injuries (2061).
¶ 380 Dr. Geisler agreed that the way in which we work is changing and more people are working at home. This factor may assist people with spinal cord injuries in securing employment (2061).
¶ 381 Dr. Geisler is of the view that it is unfair to say that because the Plaintiff does not have serious health problems to date that she will not have serious health problems in the future (2064). There is considerable unpredictability of the spinal cord injured patient’s condition which Dr. Geisler qualifies as a “very unique illness”(2064).
¶ 382 Dr. Geisler testified that the impact of recurring urinary tract infections on her future health condition will be such that, in all probability, she will be exposed to bacteria that is resistant to the prescribed antibiotic. This will necessitate a change (2065). With each new antibiotic the Plaintiff risks adverse effects. Over the passage of time there will be fewer and fewer antibiotics that are effective. This will have a negative psychological impact on her.
9. Pregnancy
¶ 383 It was Dr. Geisler’s view the Plaintiff could conceive a child, carry it to term and deliver (1999-2000), have a reasonably normal time of it, and would probably find it very gratifying (2001). In Dr. Rocheleau’s experience, it is very unusual for quadriplegic women to have more than two children, the norm being one child (2984).
¶ 384 Dr. Geisler testified that the Plaintiff would be at the same risk to complications as those experienced and suffered by an able-bodied person in the course of a pregnancy (2000). However, he was of the view that the Plaintiff would be at greater risk to urinary tract infections, which might become more frequent, and to sympathetic hyper-reflexia. Dr. Geisler was of the view, however, that the sympathetic hyper-reflexia should not be that dangerous. The Plaintiff could cope if she received the appropriate anaesthetic (2000-2001). Dr. Geisler testified that the Plaintiff would must likely undergo a caesarean section.
¶ 385 Dr. Rocheleau opined that pregnancy is a risky procedure for a woman with quadriplegia as it produces significant stress (2984). According to Dr. Rocheleau, the risks begin during the second trimester when the mother’s weight increases (2986). Her medical condition may be exacerbated resulting in urinary frequency, incontinence, constipation, problems with positioning, back pain, lack of strength and diminished movement (2986). In his opinion, fifty percent additional assistance is required during the second trimester whereas 24 hour assistance is required by the third (2986).
VI. LOSS OF INCOME
¶ 386 The value of an income loss is the difference between:
a) the income that would have been earned by the Plaintiff but for the accident, and
b) the income that the Plaintiff is able to earn post-accident.
A. Employability Potential
1. Pre-injury Analysis
¶ 387 The Plaintiff called Mr. Conway, a psychologist with a specialization in the field of vocational rehabilitation to give expert opinion evidence as to the pre-injury and post-injury employability potential of the Plaintiff based on his July 16, 1997 expert report and appendix and his October 21, 1997 rebuttal report. Mr. Conway who was qualified as an expert met with the Plaintiff on June 18, 1992 and April 2, 1997.
¶ 388 I am mindful that Mr. Conway had previously been qualified as an expert in 62 trials in Alberta, British Columbia and Saskatchewan. He completed an undergraduate degree at the University of Calgary and a Master of Science Degree in the Department of Education Psychology at the University of Calgary.
¶ 389 Dr. Bruce was qualified as an expert witness for the Plaintiff competent to give opinion evidence in labour economics as to the calculation of the present value of the Plaintiff’s loss of past and future income and the present value of the cost of future care (2845).
¶ 390 Dr. Bruce is a professor at the University of Calgary with a Bachelor of Arts degree in Honours Economics from the University of Victoria, a Master of Arts degree in Economics from Carleton University, Ottawa, and a Ph.D. in Labour Economics from Cambridge University, England. Dr. Bruce also acts as a consulting economist specializing in the provision of litigation support in personal injury and fatal accident cases.
¶ 391 Dr. Mandel gave expert opinion evidence for the Defendants as to the pre-injury and post-injury employability potential of the Plaintiff based on his August 19, 1997 expert report and November 3, 1997 rebuttal report. Dr. Mandel is a clinical and rehabilitation psychologist. He was qualified as such at the trial. He completed an undergraduate degree at McGill University, a Master of Arts degree in Psychology at Stephen F. Austin State University in Nacogdoches, Texas as well as a Ph.D. in Psychology (Clinical/Counselling) from York University, Ontario.
¶ 392 Mr. Taunton was qualified as an expert witness on behalf of the Defendants competent to give opinion evidence as to the assessment and calculation of the pre-trial value and future loss of income, cost of future care, and investment management.
¶ 393 Mr. Taunton is a consulting economist with a Bachelor of Commerce degree from the University of Manitoba and a Master of Arts in Economics from York University in Toronto.
¶ 394 There was a dramatic divergence in the submissions of the expert witnesses. I have given careful consideration to their expert reports and testimony. However, for the purpose of my decision I will outline the bases for their conclusions only.
¶ 395 From the outset I recognize that the experts found the Plaintiff to be an impressive young woman who was cooperative, pleasant, and well-motivated.
¶ 396 Prior to sustaining her injuries the Plaintiff was interested in becoming a physiotherapist or a nurse. Mr. Conway testified that individuals in their mid-teens are notoriously unreliable when it comes to predicting their future career paths and found it unlikely that the Plaintiff would have crystallized her career aspirations prior to sustaining her injuries. According to Mr. Conway the literature clearly indicates that the vocational interests of young persons are not typically determined until their late teens or early twenties (2731). Mr. Conway thus indicated he would not have been surprised had the Plaintiff not chosen to follow physiotherapy as a career path (2731).
¶ 397 Mr. Conway and Dr. Mandel were both of the view that the Plaintiff would have completed a university education but for the accident. They differed, however, as to the area of study available to the Plaintiff. In trying to predict whether it was likely that the Plaintiff would have been accepted into the program of physiotherapy, Dr. Mandel found that even though the Plaintiff had the potential to do the work as a physiotherapist, based on her intelligence and aptitude (3382), he concluded that she would not have gained entry due to the low admission rate (3361). Dr. Mandel assessed the Plaintiff’s chances of acceptance into this program as being greater than 12 to 14 percent, but less than 50 percent even with her good grades. Dr. Mandel was of the view that the Plaintiff would have had a better chance of gaining entry into a related health sciences program such as nursing or recreation therapy considering the less stringent admission requirements. Alternatively Dr. Mandel reported that the Plaintiff could have completed a university program in kinesiology or nutrition, or a two-year diploma program as an athletic therapist or medical technologist.
¶ 398 Mr. Conway disagreed with Dr. Mandel’s assessment and found that the Plaintiff’s 8.3 grade point university average clearly reflected her strong pre-injury potential (2836). Dr. Bruce agreed that what the Plaintiff had done since the accident, was at least an indicator of what the Plaintiff would have done but for the accident.
¶ 399 Mr. Conway was of the view that the Plaintiff could have pursued virtually any educational path (2732). Dr. Mandel on the other hand testified that areas such as law, medicine or dentistry would not have been pre-injury occupations available to the Plaintiff based on his estimate of her intelligence. He submitted that the level of difficulty for medical or law school would have been at a level above that required for an undergraduate degree in the Department of Recreational Therapy.
¶ 400 Dr. Bruce submitted three scenarios as to the Plaintiff’s pre-accident career potential: the Plaintiff as a physiotherapist with a master’s degree, the Plaintiff with a master’s degree at the 80th percentile for females based upon above-average female data, and the Plaintiff with a master’s degree at the 80th percentile for males based upon above-average male data.
¶ 401 Unlike Dr. Bruce, Mr. Taunton assumed that in the absence of the Plaintiff’s injuries and subject to the contingencies, the Plaintiff would have otherwise enjoyed employment income commensurate with the average employment income for an Alberta female with a bachelor’s degree other than law and medicine or the average employment income of an Alberta female working as a physiotherapist.
¶ 402 In the second scenario Mr. Taunton assumed that the Plaintiff would have otherwise completed a bachelor’s degree specializing in physiotherapy as of May 1, 1996 and thereafter enjoyed the average employment income of an Alberta female working as a physiotherapist, through retirement to no later than 65 years of age.
¶ 403 Dr. Bruce did not present a scenario which assumed that the Plaintiff would have only completed a physiotherapy degree. I therefore do not have any income figures from Dr. Bruce for a physiotherapist with a bachelor’s degree. Mr. Taunton, however, applied the full-time, full-year earnings from the 1991 Census data by Alberta females working as physiotherapists. Because of my determination below, I will limit my summary of the expert witness to that specific scenario.
¶ 404 Mr. Taunton opined that the data from the Federal Department of Resources Development covers only 1982 to 1992 and does not capture the current market situation and the recent health care cuts in Alberta (3442).
¶ 405 Mr. Taunton was advised by the College of Physical Therapists in Alberta that over the past four to five years a significant number of physiotherapists had moved to the inactive status as they no longer actively practised physiotherapy (3442). Mr. Taunton was advised that the decrease in practitioners was the result of cut backs in the public health care system in Alberta. He was of the view that changes in the manner of payments made by Alberta Health Care to practitioners had also impacted on private practice by forcing layoffs or closure of clinics. This factor was supported by the number of physiotherapists no longer working in this occupation (3442).
¶ 406 Dr. Bruce was of the view that Mr. Taunton’s opinion that the Plaintiff would have, if she had not been injured, earned the income of an average female physiotherapist in Alberta was “excessively conservative” in light of the Plaintiff’s abilities. Like Mr. Conway, Dr. Bruce opined that the Plaintiff’s post-accident education potential represents her minimum pre-injury capacity.
¶ 407 Mr. Conway found it quite likely that the Plaintiff would have been capable of above average earnings based on her proven skills, motivation, as well as above average educational attainment (2734).
¶ 408 What is the appropriate career path the Plaintiff would have chosen pre-injury in light of the two approaches submitted by the parties? It is difficult to predict with precision the exact occupation that the Plaintiff would have chosen but for the accident. I find that the evidence does not support Dr. Mandel’s view that the Plaintiff would not have been accepted into the physiotherapy program at the University of Alberta. I consider the model proposed by Mr. Conway to better approximate the Plaintiff’s realistic pre-injury career path than does the model proposed by Dr. Mandel.
¶ 409 The Plaintiff’s academic records reflect a person who achieved remarkable success when she made the effort. I find that the Plaintiff, who presented as an intelligent and personable woman would have enjoyed success in the career path she would have chosen but for her injury. I do not fully accept Dr. Mandel’s submission that prevailing environmental forces such as the Plaintiff’s disability significantly increased the emphasis she placed on her education (3383). Rather, I find it enhanced her maturation process. Her intellect clearly existed pre-injury even though this was not always reflected in her marks. Her university marks clearly support this statement. The accident did not nor could it have enhanced her intellectual capacity.
¶ 410 I am of the view that had the Plaintiff’s high school average not been sufficient to gain entry into the physiotherapy program, she would have continued her studies to secure higher marks in order to obtain admission. In this light I am mindful of Dr. Mandel’s testimony that given the Plaintiff’s 8.3 grade point average, it would have been likely that she would have subsequently qualified for physiotherapy after a year of university (3391).
¶ 411 I find it more likely than not, given the evidence, that, but for the accident, the Plaintiff would have received her high school diploma and completed a university degree in physiotherapy. I find that the Plaintiff would have graduated from physiotherapy in 1997, taking four years to complete the course after one additional year to qualify for entry, for a total of five years of university. Relying upon the evidence adduced, I find that the Plaintiff would have secured employment as a physiotherapist I in a hospital setting in May of 1997 and would work in such a capacity until her retirement at the age of 65 years. To this extent, I therefore accept in part the evidence of Mr. Taunton. However, Mr. Taunton’s figures are based on 1991/1992 census or employment data. I am of the view that his figures are dated and must be updated to reflect the most current data available. Whether there should be any gender distinction will be discussed later in this decision.
2. Post-injury Analysis
¶ 412 After her accident, the Plaintiff completed her Grade 11 with an average of 82.6, and Grade 12 with an average of 83.4 attaining an advanced high school diploma with excellence in 1993. She received her Bachelor of Recreational Administration from the University of Alberta with a grade point average of 8.3 out of 9. The Plaintiff found her latter educational pursuits to be a rigorous and exhausting experience (Lancaster Report, 15 July 97, 24).
¶ 413 To date the Plaintiff has received numerous awards, including the:
- Rutherford Scholarship for Academic Excellence
- Ladies Auxiliary Bursary Award
- AB Advisory Board on Recreation for the Disabled
Scholarship
- Anniversary Award in Recreation for Academic Achievement
and for Community Involvement
- Gordon McInroy Award for Academic Achievement in the Face
of Adversity
- Dr. Henry Ziel Memorial Award.
¶ 414 The Plaintiff is now registered in a post-graduate degree program in health promotion which commenced January 5, 1998. It will take her four years to complete this program, with attendance on a part-time basis, taking two to three courses a year. The Plaintiff testified that she is exhausted from the completion of her Bachelor Degree and her practicum, and needs to slow down.
(i) The Plaintiff’s Educational Motivation
¶ 415 At the outset, I wish to indicate that I do not accept the Defendants’ position that Mr. Conway influenced the Plaintiff’s career path. Mr. Conway merely made recommendations to the Plaintiff that she could have as easily rejected as accepted. Mr. Conway told the Court that following his assessment of the Plaintiff in 1992 he advised her to obtain as much education as possible. He and the Plaintiff looked at some of the data available at that time. They also discussed her motivation to improve her education and eventually obtain some form of employment. I accept Mr. Conway’s testimony that he advised the Plaintiff to attend university but suggested that she carefully review her options as she was still a high school student at that time (2777). I also accept that Mr. Conway did not make any recommendations to the Plaintiff that she pursue a recreation administration degree nor that he had any specific discussion as to the type of degree the Plaintiff should pursue nor that they discussed what occupations might be appropriate for her to pursue after her university training (2778).
(ii) The Plaintiff’s Vocational Interests
¶ 416 I accept Mr. Conway’s testimony that the Plaintiff’s vocational interests are important in her employment assessment (2729).
¶ 417 Mr. Conway and Dr. Mandel measured the Plaintiff’s vocational interests with the use of two scales (3352). Under the first test, administered by Mr. Conway, the Plaintiff’s strongest area was business or entrepreneurial related, reflecting a person who likes to manage or administer. Her secondary interest under the first test and her first interest under the second test was found to be in the social realm (2728). People with this sort of profile, Mr. Conway opined, tend to be senior managers in human resources or in trade and services (2727). Mr. Conway was of the view that the Plaintiff’s responses were most similar to individuals already employed as a school teacher, counsellor of the chemically dependent, dietician, psychologist, chiropractor and personnel manager.
¶ 418 The results of the tests administered by Dr. Mandel revealed that the Plaintiff’s main preference was for work which would allow her to serve other people in a helping capacity. As with Mr. Conway, Dr. Mandel found that the Plaintiff enjoyed jobs with leadership roles and which allowed for significant amounts of interpersonal contact. I find the Plaintiff’s interests, as disclosed in these tests, are consistent with both the pre-injury and post-injury goals which she expressed to the expert witnesses.
(iii) The Plaintiff’s Practicum
¶ 419 In May, 1997 Mr. Conway interviewed the Plaintiff’s practicum advisor, Miss Bontus who is a Recreation Therapist II at the Glenrose Rehabilitation Hospital (”Glenrose”) and has a Bachelor of Physical Education from the University of Alberta. Miss Bontus issued a glowing report as to the Plaintiff’s capabilities and strengths (2736). She observed that the Plaintiff displayed excellent planning skills, very good initiative, strong assessment skills, exemplary communications skills and was strongly motivated. Miss Bontus suggested that the Plaintiff would be a good candidate for a position which utilized her strengths but avoided her weaknesses.
¶ 420 Mr. Conway expressed concerns as to the Plaintiff’s limitations in her practicum as a result of long hours and fatigue. According to Mr. Conway, Miss Bontus noted the Plaintiff had difficulty with fatigue a number of times. The Plaintiff also experienced scheduling problems even though her work schedule was kept flexible (2808). To illustrate, Mr. Conway referred to the scheduling difficulties associated with the Plaintiff’s necessary bowel and bladder routines and the difficulty this created during her practicum placement (2723). The Plaintiff’s bowel routine requires 30 to 45 minutes every second day. To accommodate early morning work meetings the Plaintiff had to skip her morning bowel routine resulting in what he categorized as “difficult”. I would go further and note that in doing so the Plaintiff took a medical risk. It was fortunate indeed that there were no repercussions during the four month practicum. This led to Mr. Conway’s suggestion that it would be preferable for the Plaintiff to work on a part-time basis as her morning routine required an extended period of time at home ruling out an early morning start-time.
¶ 421 As previously noted the Plaintiff’s catheterization occurs four times a day and necessitates attendant care. Dr. Mandel was of the opinion that bladder problems could impact on employment and a person’s ability to sustain work. This would be dependent upon the seriousness of the problem in particular if one were having frequent episodes of incontinence (3411). Mr. Conway was of the view that the Plaintiff’s bowel and bladder routines could be a source of difficulty in an employment situation (2723). I can only conclude that continued bladder problems would impact on both the Plaintiff’s employability and her ability to sustain employment. I also agree with Mr. Conway that severe restrictions are placed on the Plaintiff because of her bladder and bowel routines. This factor and the potential for problems and accidents to arise, clearly will affect the Plaintiff’s ability to function in an employment setting, impacting on both her employability and productivity.
¶ 422 There were aspects of the practicum which were beyond the Plaintiff’s physical capabilities such as transferring patients and driving the wheelchair-adapted van (as it was not equipped with hand controls) (2738). According to Mr. Conway, because the Plaintiff was incapable of such transfers, an additional staff member was required to assist her with activities of this nature. He found this would be impractical in an employment setting (2739).
¶ 423 I find that the Plaintiff experienced a number of difficulties in fulfilling the work requirements of her practicum. While the Plaintiff could perform many aspects of her associated job duties at a very good or above average level, her work restrictions were notable. For example, she could not instruct the cooking and arts and crafts classes, assist with the swimming program, take individuals on outings, and physically assist the patients in the gymnasium performing exercises or routines.
¶ 424 I accept the testimony of Miss Bontus as to the Plaintiff’s limitations (p. 2381, l. 16 to p. 2383, l. 21).
¶ 425 In this context I appreciate Mr. Conway’s comments that individuals with spinal cord injuries often fail in the competitive labour force despite having all the apparent requirements, skills, and capabilities necessary to do well because of their disadvantages (2740). Spinal cord victims are highly variable in terms of working hours.
¶ 426 To overlook the Plaintiff’s limitations would lead me to paint an unrealistic picture of her post-injury employability. For this reason I must also consider these serious limitations including the pain and fatigue experienced by the Plaintiff to the extent that it reveals how she might cope and function in an employment context.
¶ 427 According to Mr. Conway pain is a factor which can negatively influence employability and productivity (2763). The Plaintiff reported a moderate degree of pain which increased to a higher intensity at times (3353). Dr. Mandel found the Plaintiff to be a very reasonable reporter of her disabilities (3354) and found no signs of exaggeration or minimization of her complaints. Dr. Mandel found that the test results as to the Plaintiff’s pain level were consistent with the nature of the Plaintiff’s injuries and consistent with what he had expected (3354). I accept Dr. Mandel’s testimony that the Plaintiff’s pain and complications such as bladder infection, heterotrophic ossification, and scoliosis caused her some degree of distress and served as an additional barrier to her independent vocational functioning beyond the direct effects of her quadriplegia (3370).
¶ 428 In light of the Plaintiff’s limitations, I cannot but ask myself what type of employment the Plaintiff sees herself performing. The Plaintiff advised Dr. Mandel that her career goal was to obtain employment either as a recreation therapist or in the area of health promotion. The Plaintiff advised Mr. Conway in their April 1997 interview that she was planning to enrol in a post-graduate diploma at the University of Alberta in the area of Health Promotion (2740). As noted above, she has in fact registered in this course which commenced January 5, 1998. The Plaintiff ideally would like to work part-time in a rehabilitation facility where an aide could attend to her as required (3341).
¶ 429 Dr. Mandel and Mr. Conway agreed that work as a recreation therapist or in the area of health promotion is a realistic goal for the Plaintiff. Dr. Mandel testified that often where the caregiver is herself disabled, further credibility is afforded her. This serves as a motivating factor for other patients experiencing similar problems. He was of the view that this was an area which would enhance the Plaintiff’s employment opportunities as well as her earning potential (3380). Mr. Conway found the area of health promotion to be a reasonable match for the Plaintiff in that it would permit her to utilize her cognitive and analytical skills and the knowledge received from her Bachelor of Recreation Administration (2743).
(iv) The Plaintiff’s Perception as to her Employability
¶ 430 In April 1997 the Plaintiff was administered the Personal Capacities Questionnaire test by Mr. Conway to evaluate her perceived strengths and weaknesses in the labour market. The results revealed that the Plaintiff perceived herself to have a number of employment barriers and labelled herself as severely disabled. The Plaintiff perceived her chances of obtaining and maintaining employment to be fair, falling somewhere between 26 and 50 percent (2730). The Plaintiff indicated she had trouble moving quickly and experienced difficulties in areas such as the use of her arms and hands, the necessity to rely on others in terms of mobility and her inability to work full-time without the provision of a special rest period (2729). The test also revealed that the Plaintiff thought she would need to take one to two days off per month from work and she would have to work hard at keeping her disability under control in order to avoid further exacerbation of her condition.
¶ 431 In June 1997 Dr. Mandel re-administered the Personal Capacities Questionnaire as he believed that Mr. Conway had not typically administered this test (3411). The results of the second test differed from the first. Dr. Mandel found that the Plaintiff’s perception of her employability changed from April to June. The results of the second test reflected a negative change in her perception of her employment prospects (3356). To illustrate, the Plaintiff initially rated her chances of getting and holding a job as fair (26 to 50 percent) but as poor (0 to 25 percent) in the second test. The Plaintiff also reported more obstacles and limitations in June than in April. Dr. Mandel expressed a view that there was no reason for the Plaintiff’s condition to have changed over this short period of time and did not think the Plaintiff reported any significant changes to him other than increased difficulties with bladder functioning. Dr. Mandel did testify, however, that bladder difficulties may have been a possible factor which changed her perception of employability (3412).
(v) The Amount of Time the Plaintiff Could Work Post-Injury
¶ 432 In assessing the amount of hours the Plaintiff could work post-injury, Dr. Mandel looked to the fact that the Plaintiff did not miss any time during her practicum (3404). However in his report Dr. Mandel did note that the Plaintiff’s requirement of 6 hours of daily personal care significantly eroded her available work time (3365). Dr. Mandel also noted that the Plaintiff required additional time during her lunch break to undergo catheterization and to take a break from sitting. Because of the Plaintiff’s fatigue and pain, Dr. Mandel estimated in his report that the Plaintiff’s work capability was most consistent with part-time work, which he testified would fall between half and three-quarters time. However in testimony Dr. Mandel indicated that he now realized that the Plaintiff had indeed worked full-time during her practicum, and after reviewing statistics from the Canadian Paraplegic Association’s Survey, concluded that 75 percent full-time was a better estimate than the 50 percent full-time referred to in his report; he even qualified this 75 percent estimate as “conservative”.
(vi) How Long the Plaintiff Could Be Gainfully Employed
¶ 433 When I asked Dr. Mandel to elaborate upon how long he thought the Plaintiff could be gainfully employed, he responded by referring to the Krause Study, supra, which identifies the reduction in employment retirement age from the average of non-disabled individuals to between 51 and 60 years of age for individuals with spinal cord injuries. Dr. Mandel thought the situation was likely to have somewhat improved since the 1992 study (3415), but afforded me no particulars in this regard. Dr. Mandel testified that one might expect the Plaintiff to retire from the work force at this middle age range, subject always to medical complications and the likelihood of the Plaintiff’s complicating factors becoming worse (3415). Dr. Mandel thought the Plaintiff had a very good chance of maintaining employment. However he recognized that this could be interrupted by factors such as medical complications requiring hospitalization, skin breakdown and significant bladder problems. Dr. Mandel submitted that these factors may not necessarily lead to loss of a job but rather to short-term disability.
¶ 434 Mr. Conway opined that the literature suggests that individuals with quadriplegia cease working or reduce their work dramatically between the ages of 60 to 65 (2763). Mr. Conway testified that the literature is also to the effect that these individuals do not work continuously from the time that they acquire a position until retirement; work is intermittent (2763).
¶ 435 The other factor which could take the Plaintiff out of the workforce for some years would be child birth and parental responsibilities (3416). Prior to her injury, the Plaintiff expressed an interest in having four children. She testified that she is still of that view, notwithstanding her disability. Given that a family of four is considered a large family by today’s standards and given the severity of her disability, notwithstanding her determination, I find that it is unrealistic to conclude that the Plaintiff will have four children.
(vii) The Plaintiff’s Employment Opportunities
¶ 436 Dr. Mandel testified that individuals with quadriplegia have limited employment opportunities because of the severity of their physical limitations and their requirement for assistance for basic self-care (3364). Mr. Conway testified that the Plaintiff would have a difficult time finding employment because of her obvious physical limitations, mobility problems, limited hand control, ongoing pain and fatigue (2769). He was of the view that the Plaintiff’s need for assistance relative to her bodily functions, and lack of employment experience would cause her further difficulty (2769). The only pre-injury practical work experience the Plaintiff had was a summer job as a kitchen aid at a local senior’s lodge (2718). As noted above the post-injury work experience was her practicum at the Glenrose (3409).
¶ 437 Mr. Conway expressed the view that employers would be disquieted in dealing with the limitations faced by the Plaintiff (2770). He found that the Plaintiff would be at a disadvantage competing for work with individuals without pain, stamina problems or physical limitations (2771). Mr. Conway did not suggest that it would be impossible for the Plaintiff to acquire a position, but that it would be difficult and require a particularly understanding employer (2771). I note that Dr. Mandel agreed that should the Plaintiff experience health problems or increased depression, either or both of these factors could negatively impact her employability in the future (3412).
¶ 438 Dr. Mandel, on the other hand, testified that the Plaintiff’s chances of obtaining employment were greater than 50 percent. According to Dr. Mandel the Canadian Paraplegic Association Study demonstrates that people with spinal cord injuries similar to those of the Plaintiff’s and with her level of education have a much higher rate of success in seeking employment than has historically been the case. The rate is currently somewhere in the order of 80 to 90 percent (3369). Dr. Mandel testified, however, that the Plaintiff’s hours of employment would likely be reduced because of the requisite attendant care, reduced sitting tolerances, and the regular experiences with pain and fatigue. He found this to be consistent with the literature (3369).
¶ 439 Dr. Mandel recognized that even though there might be certain physical tasks which the Plaintiff would be unable to do as a recreation therapist, he thought that she might be the recipient of what he defined as “job carving” (3342). Dr. Mandel was of the opinion that this is what occurred in the Plaintiff’s practicum (3342). When I asked Dr. Mandel what he meant by this, he defined “job carving” as a situation in which a person may not fulfil 100 percent of the usual job duties, but is employed because he or she can fulfill 80 percent of the work requirements and is deemed a very capable and valued employee. (3414).
¶ 440 I note that there is no reference to job carving in either Dr. Mandel’s main or rebuttal report nor any reference in either of the reports as to the extent to which carved jobs are available (3409). At trial Dr. Mandel did not have any particular statistics regarding the availability of such jobs even though he testified that he was aware of individuals for whom accommodations such as this were made by employers (3413).
¶ 441 Mr. Conway found Dr. Mandel’s conclusion that the Plaintiff had a better than 50 percent chance of obtaining employment, optimistic at best (2773). Mr. Conway was of the opinion that even though the 50 percent figure is reflective of the Krause Study, supra, it is difficult to translate this figure directly to Canadian circumstances and in particular to the Plaintiff (2773).
3. Determination of Employability
¶ 442 As seen above the subject of the Plaintiff’s post-injury employability potential was a subject of considerable discussion during the course of this trial. I will assess the Plaintiff’s employability on the basis of her unique characteristics as well as the circumstances presented to the Court.
¶ 443 Dr. Bruce viewed the Plaintiff to be competitively unemployable. He was of the view that the Plaintiff’s earning capacity would clearly be compromised due to her disabilities.
¶ 444 Mr. Taunton on the other hand opined that a proportion of spinal cord injury individuals do gain employment and that those with higher levels of education have a better prospect of gaining employment than those with lower levels. According to Mr. Taunton, if one assumed the Plaintiff were unemployable, it would categorize the Plaintiff’s chances of work as less than that of an average spinal cord injured person with the Plaintiff’s level of education. I agree.
¶ 445 It is hoped that the Plaintiff will find a niche in the workplace where she is able to earn significant income and enjoy the social contact which the employment setting could afford her. It may be that the Plaintiff will find an employer who will accommodate her limitations and work with her considerable strengths. However, I find that the Plaintiff’s significant limitations will negatively impact upon her employability potential.
¶ 446 On the positive side, the evidence indicates that the Plaintiff has very high motivation, strong academic performance, and a strong desire to work. I find that the Plaintiff is certainly capable of succeeding in her post-graduate studies in Health Promotion. Her outstanding scholastic endeavours indicate that this is most probable. It is clear that the Plaintiff’s paramount interests and abilities lie in the area of health related programs. Within this employment setting the Plaintiff, in an administrative capacity, can work with people in a helping role.
¶ 447 I cannot say unequivocally that the Plaintiff will never work. This would fly in the face of the evidence. However, after considering all of the evidence, her medical condition and the potential for future complications, I assess her employability potential at best at 50 percent.
¶ 448 I believe that the Plaintiff will gain entry to part-time employment in her area of interest based on her very positive evaluation by Miss Bontus, her excellent academic record, her winning personality, her high level of intelligence and her strong desire to succeed. However, I do not agree with Dr. Mandel that because the Plaintiff worked full-time during her practicum, a period of four months, she is capable of working three-quarters time. The practicum was for a limited period, and she took considerable health risks to accommodate her work hours, such as foregoing her regular bowel routines.
¶ 449 The Plaintiff must deal with the cumulative effect of a variety of medical complications and sequelae while attempting to perform her regular work duties. The likelihood of continued bladder infections, I understand, will most probably lead to periodic absences from work. Also, I am exceedingly mindful of Dr. Geisler’s testimony that the Plaintiff’s condition requires her attendance at a rehabilitation clinic annually over the next several years for a period of six to eight weeks. I am therefore satisfied that taking into account the Plaintiff’s physical limitations, health concerns, additional prolonged rehabilitation requirements, potential complications from pregnancies, her need for assistance with activities of daily living and her reported reduced tolerances for sitting due to pain and fatigue, that her hours of employment are likely to be reduced such that, at best, the Plaintiff will be capable of 60 percent full-time work.
¶ 450 In addition, dependent on the progression of her complications, the Plaintiff may be forced to retire prematurely from the work force. As Dr. Geisler has testified, her health condition will only deteriorate and her disabilities become enhanced and pronounced with aging. Accordingly, I find that the Plaintiff will retire at the age of 52 years.
¶ 451 Finally after considering all the factors as set out in the evidence, I find that the Plaintiff will work in the area of health promotion or recreation administration during her truncated working life.
4. Wage Statistics
¶ 452 As it is my responsibility to assess the Plaintiff’s loss of income, I have considered the educational level she would most likely have attained and now consider the statistical evidence to determine the lost income. The Court was asked by the Plaintiff to award compensation for loss of pre-injury earning capacity on the basis of the average full-time full-year earning potential for males. The Defendants on the other hand were of the view that the use of male statistics would unrealistically inflate the Plaintiff’s pre-injury earning potential and found more realistic the use of data based on the actual earnings of females. The difference between the two approaches is notable as reflected in the figures provided to the Court.
¶ 453 According to Mr. Taunton the research indicates that as women move into higher paying occupations traditionally dominated by men, and take less time out of the labour force for childbirth and child rearing, the earnings gap between males and females should diminish.
¶ 454 Several cases have held that a plaintiff’s earning capacity should not be limited by statistics based on her gender: Tucker v. Asleson, (25 Apr 91) Vancouver B871616, (BCSC) (affirmed by the BCCA, (1993), 78 BCLR (2d) 173). Earnings differentials should not be explained by gender but by different behaviour in the labour market: B.I.Z. V. Sams (24 March 1997) Kamloops 18872, (BCSC), Hunter, J.
¶ 455 Two approaches have been judicially considered in the determination of loss of income for women. The first method initially turns to the male wage tables and decreases the amount as per the negative contingencies. In contrast, the second method commences with the female wage tables and increases the amount as per the positive contingencies.
¶ 456 In Toneguzzo-Norvel (Guardian ad Litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114 the Supreme Court of Canada did not specifically answer the question of whether it is appropriate to use male wage tables from the outset in the calculation of loss of income for females. It did, however, approve of the method the trial judge had taken, in starting with female wage tables and increasing the amount to account for the diminishing wage gap between males and females.