IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101027

Docket: M8306

Registry:
Campbell River

Between:

Jan Schulze, an
infant

by his Litigation
Guardian Agnieszka Schulze

Plaintiff

And

Neil Lenard Strain

Defendant

Before:
The Honourable Mr. Justice Halfyard

Reasons for Judgment

Introduction

[1]            
This has been a short trial of a claim for damages for personal injuries
allegedly sustained by the plaintiff in a motor vehicle accident which occurred
on January 10, 2007, near Campbell River.  Shortly before the trial,
the defendant admitted that he alone was at fault for the accident.  The only
issue at the end of the trial was the amount of damages that should be awarded
to the plaintiff for non-pecuniary loss.

[2]            
The plaintiff Jan Schulze was born on July 4, 2002, and was
eight years old at the time of trial.  Understandably, he did not testify at
the trial.  Three witnesses were called on behalf of the plaintiff.  His
mother, Agnieszka Schulze and his father, Ralf Schulze were called as
witnesses.  Dr. Larry Ness, the family physician and a general medical
practitioner in Campbell River, was called, and his medical reports and
clinical records were filed in evidence.  Other documents were filed, which
included the ambulance crew report and a number of photographs taken at the
accident scene.  The defendant elected not to call evidence.

[3]            
Counsel for the defendant did not challenge the credibility of any
witness called on behalf of the plaintiff.  The only issue of fact having any
significance is the duration of some of the effects of the accident on Jan.

The Facts

[4]            
Based on all of the evidence, I make the following findings of fact.

[5]            
On January 10, 2007, Jan was about four and one-half years
old.  He lived with his parents in their home near the Strathcona Lodge on
Highway 28, at a point approximately 45 kilometres west or northwest of
Campbell River.  On January 10, 2007, Mr. and Mrs. Schulze, Jan and
Mrs. Schulze’s mother (Jan’s maternal grandmother) had driven into Campbell
River.  Among other things, Jan attended a physiotherapy session for exercise
to his left wrist and hand.  Since birth, Jan had a condition known as “left
hemiplegia,” which resulted from a stroke and caused marked muscle weakness on
his left side, including his left arm and left leg.  By January 2007, Jan
had made good progress in his recovery from this condition, and the only
significant problems remaining appeared to be in his left hand and wrist, and
his left ankle and foot.

[6]            
The family attended to other matters and did some shopping.  They left Campbell
River, heading for home, at about 3 p.m. on January 10, 2007.  Mr.
Schulze was driving them in a 1988 Dodge Caravan.  Jan was restrained in a
child car safety seat in the middle of the back seat.  His mother and his
grandmother were seated on either side of him in the back seat.  The accident
occurred at a point on the highway that was about half way to their home.  The
road was paved and had one lane of travel in each direction.  There was a
concrete, no-post guardrail to Mr. Schulze’s right.  There was slush on the
surface of the roadway, and there was snow along the sides of the road.  As the
Schulze vehicle approached a curve to the left, the speed limit was posted as
50 kilometres per hour, and Mr. Schulze was driving at that approximate speed and
perhaps slower.

[7]            
The defendant, Neil Strain, was driving a small, 1991 Ford hatchback car
on Highway 28, and was travelling toward Campbell River.  He was travelling at
approximately 50 kph as he came around the corner, travelling toward the
Schulze van.  As it came toward the Schulze vehicle, the Ford car drifted
across the centre line, into Mr. Schulze’s lane of travel.  The distance
between the two vehicles at this point is uncertain.  Mr. Schulze slowed down
and pulled his van to the right, expecting the red car to return to its proper
lane of travel.  It did not do so.  Mr. Schulze was limited in steering over to
the right because of the concrete guardrail.  When the red car kept coming at
him, at the last second Mr. Schulze made an attempt to avoid a collision by
steering hard to his left, but he had no time or distance to execute that
manoeuvre.  The front ends of the two vehicles collided with each other.  The
photographs indicate that both vehicles were extensively damaged, and that the
major damage to each vehicle occurred to the passenger side of the front of
each vehicle.  Mr. Schulze’s van was almost stopped by the time the collision
occurred.  The speed of the defendant’s car is uncertain, but was probably in
the range of 50 kph.  The force of the impact was considerable.

[8]            
Jan saw the red car coming toward them before the collision and then
witnessed the collision.  He was seriously frightened by this experience.  He
cried for about two hours following the collision.

[9]            
Someone, perhaps a passing motorist, reported the accident.  Two
ambulances, a fire truck and a police car attended at the scene of the
accident.  The Schulze family was taken by ambulance to the hospital in
Campbell River.  The evidence does not indicate whether anyone involved in the
accident suffered any serious physical injury.  The Schultze family, including
Jan, were all examined by a doctor, and were discharged to go home at about
6:03 p.m. A friend of the family came from the Strathcona Lodge area and drove
the four members of the Schulze family to their home.

The Effects of the Accident on Jan

[10]        
The doctor who examined Jan found a bruise at the front of the base of
Jan’s neck on one side.  The bruise was about two inches in length, and
narrower in width.  That was probably caused by the seat belt restraint.  The
bruise was no longer visible by January 19, 2007.  Jan was otherwise
not physically injured as a result of the collision.  His pre-existing
condition of left-sided weakness was not affected in any way.

[11]        
Jan was emotionally upset after the accident.  There were significant
changes in his behaviour.  He wet his bed every night for about two weeks.  He
woke up from his sleep some nights, crying.  His mother and father believed
that he was having nightmares about the accident, but he would not tell them
what was bothering him.  Jan was constipated for about a week, and his mother
had to insert a suppository in order to relieve this condition.

[12]        
Jan did not want to travel in a car, after the accident.  His
physiotherapy sessions required that he be taken to Campbell River about twice
a week, and (after Mr. Schulze obtained another vehicle) this schedule was resumed. 
But Jan demonstrated reluctance to travelling in a motor vehicle after the
accident, out of a fear that another accident would occur.  At a later time,
likely by the fall of 2007, Jan would willingly travel by car to Campbell River,
but only when it was for a purpose he looked forward to, such as playing soccer
or swimming.  For several months after the accident, perhaps up to the end of
2007, Jan would sometimes duck his head down when oncoming vehicles passed by
their car.

[13]        
Jan began to play more aggressively with his toy cars, and would crash
them together, apparently simulating the accident of
January 10, 2007.  That lasted for several months after the accident. 
His apparent nightmares lasted until about April 2007.

[14]        
Jan became more dependent on his mother and his want for her physical
presence increased considerably.  He resented that his mother had to spend
increasing amounts of time in her employment of caring for children of the
employees of Strathcona Lodge.  Jan started kindergarten in
September 2007, which was for one-half day for three days a week.  He
liked attending school.  I infer that he became less dependent on his mother’s
physical presence after that time, although he seemed to require her presence
in their car whenever they travelled to Campbell River.

[15]        
The family had taken several fairly long road trips in their van before
the accident.  However, they have not done so since the accident.  It is
unclear to me whether this is due to Jan’s reluctance to go or to a lack of
desire on the part of his parents to take such trips, or a combination of
both.

[16]        
Jan has remained reluctant to talk about the accident, until quite
recently, shortly before the trial.  At that time he told his parents that he
did not like how the accident had changed their family.

[17]        
I find that Jan’s fear of riding in a motor vehicle had diminished to
dislike, by the end of 2007.  It may be that he still does not like riding in
cars, but he does not hesitate to do so when attending an activity which he
enjoys, such as soccer or swimming.

[18]        
Jan is an intelligent boy who has apparently returned to his usual happy
self, notwithstanding the long-standing serious physical difficulties that he
has had to endure and overcome, and the effects of the accident.

[19]        
In his report dated June 4, 2010, Dr. Larry Ness expressed the
following opinions, which I accept:

a)    Jan sustained a
“minor, soft-tissue anterior neck injury and post traumatic anxiety symptoms”
as a result of the accident of January 10, 2007.

b)    There were no
adverse effects on Jan’s pre-existing condition, as a result of the accident.

c)     Jan’s
emotional and behavioural symptoms after the accident, as described to him (Dr.
Ness) by Jan’s parents, were caused by the motor vehicle accident of
January 10, 2007.

d)    Jan’s emotional
trauma has resolved “as a result of his parents’ provision of a loving, caring,
and supportive environment.”

e)    There is a
possibility that Jan still has a “mild fear of being in a vehicle.”

[20]        
In his CL19 medical report to ICBC dated May 4, 2007, under
the heading “List all Clinical MVA-related Diagnosis and ICD9 codes,” Dr. Ness
wrote: “superficial neck abrasions (723), post-traumatic stress disorder
(309.81).”

[21]        
It was apparent from his trial testimony that Dr. Ness has had more
training about mental health issues than most general practitioners.  However,
Dr. Ness made it clear that he was not suggesting that he was qualified to make
a diagnosis of recognized psychiatric illnesses.  One such illness is
post-traumatic stress disorder.  It may be that Dr. Ness was simply referring
to some description of a group of symptoms listed in some code or chart which
is used when reporting to ICBC in a CL19 report.  That matter was not explored
by either counsel at the trial.  But there is no expert medical evidence in
this case which could establish that the emotional and psychological
disturbance that was caused to Jan by his exposure to this motor vehicle
accident amounted to a recognizable psychiatric illness.

[22]        
I should add that the “possibility” that Jan still has a mild fear of
travelling in a car, is not capable of establishing ongoing fear.

The Legal Issue

[23]        
Jan suffered a minor physical injury as the result of the accident caused
by the defendant’s negligence.  He also suffered severe fright from his
involvement in this accident, and the consequences of that fear which I have
described above.  There is really no dispute about this.  The main issue in
this case is one of law, and it is this:  Does the law require, as a condition
of recovering damages for Jan’s psychological upset, proof that he suffered a
recognized psychiatric illness as a result of the accident?

Arguments

[24]        
Counsel for the plaintiff submits that Jan is entitled to recover
damages for his psychological injury, without having to prove that his
psychological disturbance and upset was of such an extent and duration as to
amount to a recognized psychiatric illness.  In support of this submission, counsel
relied mainly on two cases, namely: Easton v. Ramadanovic Estate (1988),
27 B.C.L.R. (2d) 45 (Southin J.) and El-Amine (guardian ad litem of) v.
El-Amine 2001 BCSC 540 (Cole J.).

[25]        
Counsel for the plaintiff submitted that this different principle
applied to the present case, because here, Jan did suffer a physical injury which
resulted from his personal involvement in the accident, so that his
psychological disturbance should be considered as “part and parcel” of the
overall injuries he sustained.  Mr. Frame distinguished the present case from
cases in which plaintiffs who had not been injured (and who had not been
involved in the incident) claimed damages for psychological injury alleged to
have been caused by witnessing a terrifying or horrific incident or by being
notified of such an incident.  It was said that it was only in this latter kind
of case that a psychiatric illness had to be proved.

[26]        
Counsel for the plaintiff conceded that the plaintiff sustained only a
minor physical injury, but submitted that he suffered psychological injury of a
moderate degree.  Mr. Frame argued that an award of damages in the range of
$25,000 to $30,000 is justified.

[27]        
Counsel for the defendant submitted that the plaintiff could not recover
damages for any psychological disturbance caused to him by the accident,
because it had not been proved that the psychological disturbance rose to the
level of a recognized psychiatric illness, nor had it been proved that the
psychological disturbance was causally connected to the minor physical injury
sustained by the plaintiff.  Counsel relied on Beaulieu v. Southerland
(1986), 35 C.C.L.T. 237 (Legg J.).  In that case, the plaintiff had not
suffered any physical injury, but was walking with her friend along the road
when her friend was struck and killed by the defendant’s motor vehicle.  Mr.
Justice Legg was satisfied that the plaintiff had suffered anxiety and grief
and was extremely disturbed by the incident, but dismissed the action on the
ground that she had failed to prove that her condition amounted to a recognized
mental illness.

[28]        
Mr. Jones submitted that the plaintiff should only be compensated for
his minor physical injury and that an award of $500 for that injury would be
appropriate.  In the alternative, counsel stated that if the court was inclined
to award damages to the plaintiff for his psychological disturbance, then a fit
award should not exceed $2,000.

[29]        
I asked counsel to make further submissions on the issue, after
reviewing the two cases of Graham v. MacMillan 2003 BCCA 90 and Kotai
v. Queen of the North 2009 BCSC 1405 (Joyce J.).  After reviewing those
authorities, Mr. Frame did not resile from the position he had taken on behalf
of the plaintiff.  He pointed out that the plaintiff in Graham v. MacMillan
was a bystander who had witnessed her husband being assaulted but who was not
involved in the incident itself and suffered no physical injury.  With respect
to the judgment of Mr. Justice Joyce in Kotai v. Queen of the North,
counsel for the plaintiff referred to the dismissal of the claim of passenger Joshua
Snow who was 10 years old at the time of the abandonment and sinking of the
ship.  Mr. Frame noted that the boy had not sustained any physical injury
(paragraph 92) and that in his analysis at paragraphs 101 – 103, Joyce J. had
included the following statement concerning the degree of his psychological
disturbance:

Even if the test to be applied
was a serious and prolonged injury, I would have to find that this claim fails
to meet that standard.

[30]        
Counsel for the plaintiff argued, in effect, that the law on this issue
was unsettled, that it would be open to this court to adopt the test of “a
serious and prolonged injury” and that if this was done, the psychological
injury to Jan would satisfy that test and would support an award of damages.

[31]        
Counsel for the defendant contended that the cases of Graham v.
MacMillan and Kotai v. Queen of the North required proof of
psychiatric illness and were fatal to the plaintiff’s claim for damages for
psychological injury. Mr. Jones added (and this is undisputed) that there is no
suggestion in the present case that Jan’s psychological disturbance flows from
or is causally related to his minor physical injury, but rather it was caused
by the occurrence of the accident.

Discussion

[32]        
Having accepted the evidence of Jan’s parents and the evidence of Dr.
Ness, I conclude that Jan was extremely frightened by his anticipation of the
collision, and then experiencing the collision. Quite naturally, this was fear
for his own safety, a fear of being seriously injured. That fear manifested
itself in the physical symptoms and the changes in behaviour which I have
previously described. Most of his symptoms had subsided within six months. I
have found that Jan’s fear of travelling in a motor vehicle had diminished to
the point of mere dislike, within about a year of the accident.

[33]        
The evidence does not establish that Jan’s psychological disturbance
amounted to a recognized psychiatric illness. While I am satisfied that Jan’s
psychological disturbance was significant and far above being trivial, I am also
not persuaded that the degree and duration of his emotional disturbance
supports the conclusion that he sustained “a serious and prolonged injury.” (That
was the lesser test which was argued by the plaintiffs in Kotai v. Queen of
the North, but which was rejected by Joyce J.)

[34]        
In Kotai v. Queen of the North, Mr. Justice Joyce analysed the
law in detail in paragraphs 24 through 77 of his reasons. The conclusions that
he expressed at paragraphs 64, 69, and 77, if accepted, would be fatal to Jan’s
claim for damages for psychological injury. In the opinion of Joyce J., the law
requires a plaintiff who advances a claim for psychological injury in
circumstances similar to the present case, to prove that he suffered such
serious psychological consequences as a result of the defendant’s negligence
that they amounted to a recognized psychiatric illness. Counsel for the
plaintiff submitted that I did not have to follow Joyce J’s reasoning and that
I could properly conclude that proof of a recognized psychiatric illness was
not an essential element of liability in the present case.

[35]        
I do not accept that submission. Mr. Justice Joyce’s decision was a
careful and reasoned decision. He considered numerous authorities in the course
of reasoning to his conclusion, and it is not suggested that there were
relevant authorities that were not cited to him. Having regard to the long-standing
principle established in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R.
590, I conclude that I should follow the reasoning of Mr. Justice Joyce in Kotai
v. Queen of the North.  In my opinion, the cases relied on by counsel for
the plaintiff have been superseded by subsequent authorities.

Conclusion

[36]        
In my opinion, the law does not permit me to award damages to Jan for
the psychological disturbance caused to him by the defendant’s negligence. As I
see it, damages may only be awarded for the minor physical injury suffered by
Jan as a result of the collision.

[37]        
I award damages in the amount of $1,500 to Jan for pain and suffering
and loss of enjoyment of life.

[38]        
If I had found Jan’s psychological disturbance to be compensable in law,
I would have awarded an additional $6,000 in damages for non-pecuniary loss.

Costs

[39]        
If the issue of costs cannot be settled by the parties, the matter may
be spoken to by way of the usual procedure through the office of the trial
scheduling manager.

[40]        
I think it is arguable that the plaintiff was “the successful party”
within the meaning of Rule 14-1(9). I say that because the defendant did not
admit liability for the accident until the filing of an amended statement of
defence on October 13, 2010, and because the defendant maintained a denial in
the amended pleadings that the plaintiff was injured at all. Of course, it was
established at trial that the plaintiff sustained some physical injury, and
this was not really contested, in the end, by counsel for the defendant.

[41]        
Rule 14-1(10) would deprive the plaintiff from costs, other than
disbursements, unless there was sufficient reason for bringing the proceeding
in the Supreme Court. The defendant’s denial of liability until the eve of
trial would understandably make the discovery procedures available in this
court highly desirable. On the other hand, it is certainly arguable that the
range of damages potentially available to the plaintiff as of November 12, 2008
when the action was commenced could not reasonably be expected to exceed the
$25,000 jurisdiction of the Provincial Court, even if the theory of law
advanced by plaintiff’s counsel had been accepted.

[42]        
I make these comments in the hope that the parties may reach a
reasonable compromise on the issue of costs, without incurring more costs. Of
course, there may be other facts in existence of which I am unaware, that could
be decisive on the issue of costs.

Mr.
Justice D.A. Halfyard