IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120504

Docket: S102196

Registry:
Vancouver

Between:

Ingrid Yungen

Plaintiff

And

Fraser Health
Authority, Providence Health Services Authority,
St. Paul’s Hospital, Dr. Jeremy Woodham, Dr. Jill Osborn, S.
Sirvonova,
W. Walker, C. Velosa, Drs. Jane Doe and John Doe,
Nurse Attendants Jane Doe and John Doe

Defendants

And

Providence Health
Services Authority, St. Paul’s Hospital,
S. Sirvonova, W. Walker, C. Velosa and Dr. Jill Osborn

Third
Parties

Before:
The Honourable Madam Justice Fenlon

Oral Reasons for Judgment

[1]            
The plaintiff, Ingrid Yungen, fell from a hospital operating table four
years ago while unconscious. She claims damages for injuries resulting from
that incident. The defendant Providence Health Services Authority operates St.
Paul’s Hospital and is the only remaining defendant. The defendant Sirvonova
was never served and the action was discontinued against all other defendants.

ANALYSIS

A.             
What injuries has Ms. Yungen sustained?

[2]            
Ms. Yungen claims that the fall caused the following injuries:

(a)           
mild traumatic brain injury (described as concussion in the statement of
claim);

(b)           
headaches;

(c)           
problems with memory and concentration;

(d)           
chronic pain, fibromyalgia;

(e)           
soft tissue injuries to the neck;

(f)             
soft tissue injuries to the lower back;

(g)           
hip pain radiating into the legs;

(h)           
jaw pain;

(i)             
injury to the left shoulder; and

(j)             
chronic anxiety.

[3]            
The statement of claim also listed injuries to the left arm and left
hand; while I take them into account, those injuries were short-lived and were
not emphasized at trial. Injury to the face and right eye were also alleged in
the statement of claim, but not pursued at trial in light of the medical
evidence that did not support a link between those conditions and the fall from
the operating table.

[4]            
The starting point in determining what injuries occurred is the fall on
April 30, 2008. The defendant described an “assisted fall” or “controlled
lowering”, as Ms. Yungen was firmly held at her head and feet and her body
slowly “hammocked” until her hips and buttocks came to rest on the floor.

[5]            
The defendant submits that Ms. Yungen did not strike her head in
the incident and, given the gentle nature of the fall, it is improbable that it
caused the “enormous catalogue of injuries” put forward by Ms. Yungen.

1.              
What occurred in the fall?

[6]            
How Ms. Yungen fell, and whether she struck her head in the
descent, is essential to proof of a number of her claims, so I begin with that
question of fact.

[7]            
The plaintiff was unconscious at the time and is, therefore, unable to
say what happened. Evidence about the fall necessarily comes from Dr. Osborn,
the anesthetist, Dr. Brown, a resident, and the nurses in the operating
room. Their evidence establishes that Dr. Brown was standing at the
plaintiff’s feet. An ophthalmology resident stood on her left alongside the
stretcher to which Ms. Yungen was to be transferred. A nurse stood on Ms. Yungen’s
right side beside the operating table, and Dr. Osborn stood at Ms. Yungen’s
head. Dr. Brown grasped the patient’s feet, Dr. Osborn disconnected
the ventilation equipment from the endotracheal tube, leaving the patient’s
tube in place, cupped the patient’s head in her right hand, and with her left
hand supported Ms. Yungen’s left shoulder. As the resident pulled the
slider sheet, on which Ms. Yungen had been placed, toward the gurney, a
small gap developed between the operating room table and the gurney. As the
gurney’s brakes failed and began to move away from the operating table, the gap
that had first appeared under Ms. Yungen’s head increased in size, first
at the end near the head, and then towards the foot of the bed in the shape of
a wedge. As this occurred, Ms. Yungen’s body moved through the gap and her
mid-body descended in a hammock-shape with her hips and buttocks contacting the
ground first with a sound the scrub nurse described as a thud. Dr. Osborn
confirmed that she subsequently examined Ms. Yungen’s hips for injury
because they had contacted the floor first.

[8]            
The height of the operating room table and stretcher is approximately 3
feet. Dr. Brown and Dr. Osborn maintained their hold on the plaintiff
at her feet and head respectively until she contacted the ground. According to
the anesthetist and resident, Ms. Yungen did not strike her head on the
floor in this process.

[9]            
Having considered all of the evidence, however, I find that Ms. Yungen’s
fall was not as gentle as the defendant asserts and that she did strike her
head on the floor. I hasten to add that in so finding I do not suggest that the
health care providers in the operating room were not testifying truthfully. To
the contrary, they gave their evidence with sincerity. However, the incident
was a highly unusual and unexpected event (despite the description of an
assisted fall) involving a 175-pound unconscious woman, who was not breathing,
falling between two stretchers held only at her feet and head. As Dr. Osborn
said, her immediate concern was the need to reconnect the plaintiff to the
ventilation equipment to avoid brain injury from lack of oxygen. Although the
medical team reacted professionally and quickly to avoid that outcome, I find
that the incident was more alarming and chaotic in reality than in the
retelling.

[10]        
It was also significant that Dr. Osborn described being on her
knees on the floor holding Ms. Yungen’s head in her hands when her descent
ended. Dr. Osborn then said, "I let her head drop onto the — was
gently placed on to the floor and hooked her up to the monitor."  I find
that Dr. Osborn rather heroically maintained her hold on Ms. Yungen
and prevented her head from striking the floor in the initial descent, but let
her head drop onto the floor when Dr. Osborn moved quickly to reconnect
the plaintiff’s endotracheal tube to the ventilator.

[11]        
This finding is supported by the existence of bumps on the back of Ms. Yungen’s
head. They were observed by Ms. Yungen’s friend who had accompanied her
from Powell River for her surgery, Ingle-Lore Freeman, when the two women
returned to their hotel beside the hospital. The discovery of the bumps on the
back of Ms. Yungen’s head led them to return to the emergency room. The
emergency discharge summary under "primary discharge diagnosis" indicates
“two distinct soft tissue swellings over the left occipital area”. The swelling
was also observed and documented by Dr. Brown as “diffuse occiput and top
of head interior bogginess”. That contusion was again noted on May 3, 2008,
when Ms. Yungen visited the Powell River hospital to follow up on her
sinusitis surgery. It was still evident when she visited her family doctor on
May 8, more than a week later. In addition, Ms. Yungen’s son took
photographs on May 11 showing a significant discolouration and bruising
spreading down along the left side of Ms. Yungen’s neck.

[12]        
The defendant explained the contusions on the basis that they must have
been caused by Dr. Osborn’s firm grip on the plaintiff as she fell. But I
find that improbable given that Dr. Osborn described cupping that area
with her palm.

[13]        
In conclusion on this issue, I find that Ms. Yungen did strike her
head in the fall.

[14]        
I turn next to another important preliminary issue which is whether the
plaintiff’s evidence should be believed.

2.              
Should Ms. Yungen be believed?

[15]        
It was apparent from Ms. Yungen’s testimony that she attributes all
of the problems that have developed since April 30, 2008, to the fall. Some of
those complaints can only be described as bizarre, including dents in her
forehead, facial collapse, holes in her cheeks, and narrowing of her ear canals.
Dr. Rossouw, Ms. Yungen’s family doctor confirmed that in his view
none of those problems could be caused by the fall and he was concerned that Ms. Yungen
was tracking back every subsequently developed symptom to the incident. By
October 2009 he had become so frustrated with her ongoing complaints of this
kind, and her requests to see specialists, that he informed her firmly that he
would make no further referrals.

[16]        
Further, Ms. Yungen’s memory regarding the onset of symptoms and
other details was poor. In addition, there is some evidence that she was not
entirely forthright with her doctor prior to the accident when she saw him in
order to complete forms required by the Workers’ Compensation Board in relation
to a knee injury she had sustained as a care aide. At a time when witnesses at
trial recalled her as being able to hike, dance and carry on without limitation,
she told Dr. Rossouw that her knee had not improved and that she was not
able to do normal activities as she was unable to kneel or use the knee in a
normal way.

[17]        
Finally, Ms. Yungen told Dr. Rossouw that right up to April
2008 she was not able to work. Dr. Rossouw confirmed that he had not been
told by Ms. Yungen about a care position she took with an elderly man who
had had a stroke. Ms. Yungen worked at that position 24 hours a day for
seven week, cooking, cleaning and helping the patient to dress.

[18]        
Taking these factors into account, I approach the plaintiff’s evidence
with caution and assess her evidence in relation to each claim against the
background of the other evidence in the case. As Dillon J. noted in
Bradshaw v. Stenner, 2010 BCSC 1398 at para 186:

Ultimately, the validity of the
evidence depends on whether the evidence is consistent with the probabilities
affecting the case as a whole and shown to be in existence at the time.

3.              
Has the plaintiff proved the injuries claimed?

[19]        
The test for causation is the "but for" test. The plaintiff
must prove on a balance of probabilities that the injury she claims would not
have occurred but for the negligence of the defendant. The fall may not be the
only cause of the injury, but it must be a cause of the injury: Athey
v. Leonati, [1996] 3 S.C.R. 458 at para. 19.

(a)           
Did the plaintiff experience mild traumatic brain injury and
post-traumatic stress disorder due to the incident?

[20]        
Dr. Lanius is a neuropsychologist who did extensive psychometric
testing on the plaintiff and concluded that she suffered from a mild traumatic
brain injury and post-traumatic stress disorder. In arriving at this conclusion,
Dr. Lanius created an estimated pre-morbid functioning which placed Ms. Yungen
at least one standard deviation above normal intelligence. He took her best
results obtained from test areas which would not be as affected by medication
as others and assumed that before her accident she would have been at the level
of her best response in all categories of testing. Dr. Lanius confirmed in
cross-examination that this would have placed Ms. Yungen in a category
that was significantly above normal intelligence. He then concluded that Ms. Yungen
had a loss of cognitive function despite obtaining normal scores in many of the
remaining tests. Dr. Lanius relied on specific low test results to support
a finding of frontal lobe injury.

[21]        
Dr. Wilkinson, whom the plaintiff did not require for
cross-examination, opined that Dr. Lanius’ methods of using test scores to
identify frontal lobe pathology is flawed and does not establish actual deficit
or injury to an area of the brain. She was also of the view, acknowledged to
some extent by Dr. Lanius as well, that the low scores could be attributed
to the narcotics and other sedating medications the plaintiff was taking as
well as to her anxiety, pain and depression at the time the tests were
administered.

[22]        
Further, Dr. Caillier, another expert called by the plaintiff,
indicated that while it was possible that cognitive impairment was caused by a
mild traumatic brain injury, she held the opinion that any evidence of cognitive
impairment was more likely a result of anxiety and emotional stressors,
medication, pain and sleep disorder, than evidence of a mild traumatic brain
injury.

[23]        
As for the diagnosis of post-traumatic stress disorder, it appears that
at least one of the criteria for that condition in the DSM is clearly
missing from Ms. Yungen’s circumstances.

[24]        
As Dr. Tomita, a psychiatrist for the defendant noted, the
plaintiff has no recollection of the incident. Even if being told of the event
after the fact could meet the criterion, there is no evidence that Ms. Yungen
was persistently re-experiencing the fall in her thoughts. There is no dispute,
however, that Ms. Yungen suffers from an anxiety disorder that interferes
with her ability to cope. I will address the cause of that anxiety disorder
later in these reasons.

[25]        
In summary on these two issues, I find that Ms. Yungen has not
proved that she suffered either a mild traumatic brain injury or post-traumatic
stress disorder as a result of the fall.

(b)           
Did the plaintiff suffer soft tissue injuries and headaches as a result
of the incident?

[26]        
Ms. Yungen’s hospital records at St. Paul’s record that she was
complaining of headaches, neck pain and pain in her left hip during her
re-admission and overnight stay April 30 to May 1. Although she had not
complained of all of those symptoms earlier in the day while in post-anesthetic
recovery, I do not find that surprising given that she was sedated and under
the effects of medication.

[27]        
The defendant submits that the temporal connection between the soft
tissue injuries and the fall is not enough and argues that the plaintiff has
not provided expert evidence establishing causation of the soft tissue injuries
resulting from the “controlled lowering of the patient to the ground”. The
defendant further submits that at most the evidence supports an exacerbation of
a pre-existing degenerative disc disease.

[28]        
With respect, I do not accept either submission. In relation to expert
evidence linking the soft tissue injuries to the fall, a number of doctors gave
evidence on causation. Dr. Rossouw, Ms. Yungen’s family doctor, was
an extraordinarily forthright witness. The defendant described him as “earnest
and straightforward”, and I agree with that characterization. I have already
alluded to evidence he gave contradicting his patient’s position that facial
and other problems were due to the fall. In relation to the soft tissue injury,
however, his evidence is quite to the contrary. He stated that when Ms. Yungen
went to see him on May 8, 2008, she had a large hematoma in the occipital area,
a large subcutaneous hematoma on her left upper arm, and a hematoma on her
right hip. In addition, her left ankle was tender and painful. All of those
injuries are consistent with the mechanism of the fall.

[29]        
In Dr. Rossouw’s opinion, Ms. Yungen sustained multiple soft
tissue injuries as a result of the fall. Dr. Rossouw had been Ms. Yungen’s
GP for at least six years before the accident and saw her regularly in relation
to sinusitis and a Workers’ Compensation Board claim relating to her knee. It
is significant that he described her in his testimony as a normal patient
before the accident, but since the fall as a patient whose whole demeanour had changed;
she visited him more frequently always voicing the same complaints.

[30]        
In his written report he put it this way:

Ms. Yungen was quite a
healthy, independent individual prior to her injury with mainly two problems,
mainly chronic sinusitis and right patella femoral syndrome. Also a period of
stress/anxiety in 2006.

In Dr. Rossouw’s view, Ms. Yungen has
developed chronic pain syndrome and he recommends stretching and strengthening
for the ongoing soft tissue problems.

[31]        
Dr. Gablehouse, a chiropractor called by the plaintiff, also gave
expert evidence of painful muscles in Ms. Yungen’s neck, shoulder, lower
back, and gluteal muscles when he examined her on May 14, about two weeks after
the fall. He gave evidence that he has been treating Ms. Yungen for
persistent pain in her neck, low back, shoulder and hip since then. While he
also treated her before the accident from November 28, 2003 on, he stated that
pre-accident symptoms were generally the result of specific incidents and were
not constant and ongoing — after she was treated, Ms. Yungen was able to
return to her work and other activities.

[32]        
Finally, there is the expert opinion evidence of Dr. Caillier, a
physical medicine and rehabilitation specialist. She expressed the opinion that
the injuries or issues likely related to the fall on April 30, 2008 included
headaches secondary to neck symptoms; poor sleep and physical manifestations of
her emotional and psychological problems; left arm sensory symptoms, likely as
a referral of the soft tissue pain; soft tissue musculoligamentous injury
involving the neck, upper back and lower back region; exacerbation of
pre-existing lower back conditions and aggravation of pre-existing degenerative
changes within the low back; and decrease in recreational and functional
activities and physical deconditioning.

[33]        
In relation to the defendant’s submission that Ms. Yungen had pre-existing
headaches and soft tissue injuries that simply flared up for a period after the
incident before returning to pre-accident levels, the evidence of her two
treating physicians, Dr. Gablehouse and Dr. Rossouw, does not support
that characterization. Both gave evidence of a change in the frequency and
nature of the complaints. Further, the evidence of Ms. Yungen’s friends
was strikingly consistent in describing a marked difference between the
plaintiff’s personality and activity level before and after the incident. The
plaintiff, in written argument, described the evidence of two such witnesses as
follows:

60.       Maxine Frazer, who has known Ms. Yungen the
longest, testified to Ms. Yungen’s strenuous outdoor activity prior to the
accident including 4 to 6 hour hikes in the Rockies around Emerald Lake and
long 1 to 2 hour walks.

61.       She described Ms. Yungen as a person who would
“light up the room” and loved people and socializing. She described her as
“always upbeat, positive and with lots of energy”. She also described her as
“always out there doing something”.

62.       Since the accident, Ms. Frazer describes Ms. Yungen
as drastically changed and that when they get together they only go for short
strolls. Ms. Frazer testified that on the one occasion when Ms. Yungen
tried to go on what should have been a 40 minute hike it took 1 ½ hours to
complete and Ms. Yungen had difficulty and was not able to keep up.

63.       She described Ms. Yungen as like an empty
shell with diminished physical activities, and now appearing withdrawn, down
and depressed. Ms. Frazer said that since the fall there is “something
missing, she is not herself”; she described Ms. Yungen as really flat and
depressed.

64.       Ingle-Lore Freeman, who attended the surgery with Ms. Yungen,
used to hike regularly with Ms. Yungen at the hiking club, go to dances
several times a year and have dinners together. She described Ms. Yungen
as a social butterfly who was always in good spirits.

65.       Ms. Freeman
testified that since the accident Ms. Yungen has not gone hiking with the
hiking club and she sees her much less often. Ms. Freeman was visibly
upset because she has withdrawn her contact from Ms. Yungen because Ms. Freeman
can no longer relate to her because of the change in Ms. Yungen

[34]        
I note that Ms. Yungen was 60 years old at the time of the incident.
She had been a home care worker which involved lifting and heavy work. It is
not surprising that she had experienced previous episodes of neck and lower
back pain. But I find, having considered all of the evidence, that Ms. Yungen’s
shoulder, neck, back and hip complaints did not return to pre-accident levels.

[35]        
I do not, however, accept Ms. Yungen’s evidence that her pain is
ongoing, constant and has not diminished. I find that her symptoms gradually
improved over the 12 to 16 months after the accident; thereafter they were
experienced episodically and often in response to activity level. I find that
the symptoms were in general both more debilitating and more frequent than
before her injury. While those symptoms may improve with further treatment I
find it probable that they will continue to persist to some extent for the
remainder of Ms. Yungen’s life.

(c)           
Were Ms. Yungen’s complaints of facial pain and temporomandibular joint
pain caused by the fall?

[36]        
Dr. Osborn gave evidence that she anchored her fingers in the
masseter muscles behind the temporomandibular joint (TMJ) as she gripped Ms. Yungen’s
head during the fall. The grip was a firm one. Dr. Osborn was surprised to
see a blue thumb mark on Ms. Yungen’s chest immediately following the fall
where Dr. Osborn had been pressing hard on the upper front portion of Ms. Yungen’s
chest.

[37]        
Ms. Yungen’s dentist recorded no TMJ complaints or disorder before
April 30, 2008. On June 10, 2008, Ms. Yungen complained to her dentist of
significant jaw pain and clicking. Thereafter, jaw pain and dysfunction were a
major part of most visits to the dentist and were also recorded in Dr. Rossouw’s
records.

[38]        
Dr. Blasberg, a specialist in oral medicine, diagnosed temporomandibular
disorder, myofascial pain of the masticatory muscles, limited mouth opening,
and right TMJ arthralgia due to the April 30, 2008 injury. He noted that these
findings were confirmed by the results of a MRI of the plaintiff’s jaw. That
opinion was not seriously challenged by the defendant.

[39]        
In summary on this issue, I find that the plaintiff has established an
injury to her TMJ and pain in the masticatory muscles of the face due to the
fall.

(d)           
Has the plaintiff proved chronic pain, memory problems and sleep
disorder due to the fall?

[40]        
In addressing claims of chronic pain, the reliability of the plaintiff’s
reports of pain must be carefully weighed. Although I have noted the need to
treat Ms. Yungen’s testimony at trial with caution, her interactions with
treating and independent medical examination doctors appear to have been
somewhat more reliable. For example, she told Dr. Caillier about
pre-existing neck and back pain. She acknowledged to Dr. Gablehouse on
September 16, 2009, that her lower back had improved slowly over time; and on
December 1, 2010, she told him her neck was improved.

[41]        
Dr. Caillier, the physiatrist, was an impressive witness who was
careful to limit her opinions to her area of expertise. Her evidence was not
shaken in the least when tested on cross-examination. In Dr. Caillier’s
opinion Ms. Yungen’s ongoing soft tissue symptoms and mechanical lower
back pain were due, at least in part, to the April 30 fall. In her view, had Ms. Yungen
not been involved in a fall from the operating table she likely would not have
developed the anxiety or depression symptoms she is experiencing at the present
time, although Dr. Caillier did defer to her colleagues in psychology and
psychiatry on those issues.

[42]        
In her view, the injuries sustained in the fall led to chronic pain and
resulting depressed mood and decreased physical activity, they in turn led to Ms. Yungen’s
sleep disorder, memory problems and inability to cope.

[43]        
Dr. Tomita, the defendant’s psychiatric expert, agreed that Ms. Yungen’s
chronic pain, sleep disturbance and anxiety provide the most likely explanation
for her diminished memory and concentration.

[44]        
Dr. Caillier acknowledged that a number of factors taken together
explain Ms. Yungen’s medical condition. She held the opinion that the
combination of physical deconditioning, chronic pain, ongoing psychological and
emotional symptoms in the form of anxiety and mood, and negative sleep, are all
negatively impacting on Ms. Yungen’s ability to be functional and active
within her home and recreationally.

[45]        
In summary on this issue, I accept Dr. Caillier’s opinion and find
that Ms. Yungen has proved that she has developed chronic pain, a sleep
disorder, and symptoms of depression and is, as a result, experiencing some
cognitive deficits. I find that those problems are due to the injuries
sustained in the April 30, 2008 fall.

(e)           
Anxiety

[46]        
Ms. Yungen’s anxiety is a more difficult issue. The defendant makes
three submissions in support of its argument that the plaintiff has not proved
that her chronic anxiety was due to the fall. First, the defendant submits that
the plaintiff suffered from anxiety before the fall. The medical records
confirm that Ms. Yungen had problems with anxiety and had been prescribed
medication for anxiety around the breakdown of her marriage in 2004 to 2006. I
find, however, that the plaintiff’s anxiety was situational and responded well
to anti-anxiety medication.

[47]        
The anxiety around the marriage breakdown had resolved well before April
30, 2008. Ms. Yungen had resumed an active social and recreational life. There
were no references to problems with stress or anxiety in the records of her
family doctor in the year before the fall. Ms. Yungen had a
pre-disposition to anxiety before the incident but she was coping well and was
not limited by anxiety until after the accident. The PharmaNet records show two
prescriptions of Clonazepam in the seven years before the accident, and six in
the three years following, although not a great deal turns on that.

[48]        
Second, the defendant argues that the temporal link between the fall and
Ms. Yungen’s chronic anxiety and poor psychological health is not enough
to establish causation. This is an important issue because, as Dr. Caillier
noted, Ms. Yungen’s emotional and psychological condition, i.e. her
anxiety and depression, were significant contributing factors to her chronic
pain and lack of functioning.

[49]        
As stated in Thiessen v. Kover, 2008 BCSC 1445, the onus of proof
is on the plaintiff to show that but for the negligence of the defendant the
psychiatric or psychological conditions now experienced by the plaintiff would
not have occurred.

[50]        
The plaintiff relies on the report of Dr. Caillier to link the
anxiety and depression to injuries that Ms. Yungen sustained in the fall. The
defendant argues that Dr. Caillier expressed only the opinion that Ms. Yungen
would not have experienced depression but for the fall, but that is not
accurate. On page 5 of her report Dr. Caillier lists depression and
anxiety in the category of injuries or issues likely related to the injury of
April 30, 2008.

[51]        
Further, at page 6 of her report Dr. Caillier states that if Ms. Yungen
had not had the fall she would not have developed the anxiety or symptoms of
depression symptoms she now experiences. She also said that there were
synergistic effects of pain, anxiety and depression that can make the condition
worse.

[52]        
The plaintiff did not tender further evidence from a psychiatrist or
psychologist on the issue. As I have noted, Dr. Caillier said that she
would defer to those specialists to comment further on Ms. Yungen’s
anxiety. Nonetheless, I accept that Dr. Caillier as a physiatrist
regularly deals with the emotional and psychological components of chronic
pain, and that family doctors regularly diagnose and treat these disorders. Dr. Caillier
has some expertise in the area and I have relied on her report in full in
describing that expertise and her opinions in relation to chronic pain, anxiety,
depression and the links between them. It was Dr. Caillier’s evidence that
anxiety, depression and pain are all part of chronic pain and that the
emotional and psychological components of that syndrome develop as a patient
experiences ongoing pain from injuries that do not resolve.

[53]        
Third, the defendant submits that the plaintiff’s anxiety was due to a psychiatric
reaction to her facial pain and appearance following the surgery of April 30,
2008. The plaintiff’s diary and a letter she wrote to Dr. Lanius on May
19, 2011, describe dents in her forehead, bumps on her nose, and holes in her
cheeks.

[54]        
The defendant argues that the plaintiff’s myofascial pain and distorted
misperception of the state of her face would have occurred with or without the
accident, that it would be understandable for anyone to have a negative
reaction to a significant sinus surgery, and particularly so for the plaintiff
given her pre-existing anxiety issues. The defendant submits that it is this
negative reaction and not the fall that is the cause of the plaintiff’s
psychiatric state.

[55]        
The defendant also asserts that if the plaintiff’s psychiatric state was
a reaction to the fall, it was an overreaction to being told about what
happened; a reaction that was not a reasonably foreseeable consequence of the
fall:  Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114 at para. 18.

[56]        
The difficulty with this submission is that there is no expert evidence
linking the plaintiff’s chronic anxiety to her distorted perception of facial
changes. I agree with the defendant’s submission that Ms. Yungen’s
perception was bizarre, but the fact that she had a psychiatric reaction of
some kind, whether due to the sinus surgery as the defendant speculates, or to some
other reason, and was complaining of all these face symptoms within months of
the surgery and before the chronic pain could have triggered a psychiatric
reaction, does not mean that this bizarre reaction is the source of Ms. Yungen’s
anxiety and panic attacks. Dr. Rossouw’s records note severe anxiety
occurring since June 2010 and link it to dealing with emotional trauma and
anger. The record does not specifically refer to the plaintiff’s perception of
her facial symptoms in this regard.

[57]        
The defendant does not, of course, have the burden of proof, or of
proving another cause of Ms. Yungen’s anxiety. There is no obligation to
do so. The burden is on the plaintiff to prove her anxiety was caused by the
injuries. But I do note that the defendant tendered three reports from
psychologists and psychiatrists and none addressed that issue or suggested that
the anxiety was due to a psychiatric reaction to the sinus surgery.

[58]        
In conclusion on this issue, while I accept that Ms. Yungen has an
unexplained psychiatric issue relating to her face, I find that the fall on
April 30, 2008, was a cause, albeit not the sole cause, of her chronic anxiety
and panic attacks since then. Her pre-disposition to anxiety makes her a thin
skulled plaintiff and the defendant must take the plaintiff as she is.

[59]        
Further, I find it was foreseeable that a plaintiff who has
long-standing soft tissue injuries may develop chronic pain and the
psychological sequelae of that condition which can include depression and
anxiety.

B.             
What damages should be awarded?

[60]        
Before turning to the particular heads of damages I note that in
accordance with Athey v. Leonati, the plaintiff is entitled to be
restored to her original position and not to be put in a better position:

[32]      The essential purpose
and most basic principle of tort law is that the plaintiff must be placed in
the position he or she would have been in absent the defendant’s negligence
(the “original position”). However, the plaintiff is not to be placed in a position
better than his or her original one. It is therefore necessary not only to
determine the plaintiff’s position after the tort but also to assess what the
“original position” would have been. It is the difference between these
positions, the “original position” and the “injured position”, which is the
plaintiff’s loss. In the cases referred to above, the intervening event was
unrelated to the tort and therefore affected the plaintiff’s “original
position”. The net loss was therefore not as great as it might have otherwise
seemed, so damages were reduced to reflect this.

[61]        
I begin by addressing the plaintiff’s pre-existing conditions. First,
she had pre-existing degenerative changes to her cervical and lumbar spine that
were asymptomatic at the time of the accident, but pre-disposed her to
mechanical back pain in future. Second, she had recurring bouts of neck and
back pain on exertion. Third, she was pre-disposed to develop situational
anxiety. Fourth, her right knee had been previously injured in a work-related
accident which had prevented her from working except sporadically in the eight
years before the incident. Finally, she developed a significant concern post-accident
about her face, shape and function which was not caused by the accident but
which caused her some distress and contributed to her reluctance to engage in
social activities.

[62]        
I take the existence of these conditions into account in assessing
damages.

1.              
Non-Pecuniary Damages

[63]        
An award under this head is to compensate a plaintiff for loss of amenities,
pain, suffering and loss of enjoyment of life. The factors to be considered are
set out in Stapley v. Hejslet, 2006 BCCA 34:

[46]      The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary
damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(g)        impairment of family, marital and social
relationships;

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s
stoicism (as a factor that should not, generally speaking, penalize the
plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA
54).

[64]        
Ms. Yungen’s life has been radically altered by the fall at the
hospital. Before that occurred she was in relatively good health, had a wide
circle of friends, an active social life, and a generally sunny and outgoing
personality. Since the accident she has lost interest in most activities, is
less sociable, more anxious, depressed, and pain focused. She is also less
physically able to engage in recreational activities such as hiking or
housework. The injuries she sustained in the fall seem to have put Ms. Yungen,
who had a propensity to be anxious, “over the edge” in terms of her ability to
cope with problems of daily life.

[65]        
The plaintiff relies on cases that suggest a range of damages of
$130,000 to $220,000. The defendant relies on cases supporting an award of $40,000
to $50,000. That figure is based on both the plaintiff’s pre-disposition to
psychological injury, which I have addressed and considered, and on an allegation
of failure to mitigate which I will address now.

[66]        
The crux of the defendant’s submission on mitigation is that the
plaintiff failed to follow recommended treatment for exercise and psychological
counselling. The difficulty with this submission is that Ms. Yungen was
sore, depressed and anxious, which according to Dr. Caillier made it
harder for her to have the motivation and organizational skills to exercise.

[67]        
Further, the plaintiff did attend yoga and she did walk on occasion. She
also went for physiotherapy, chiropractic and massage therapy. As for
psychiatric treatment, the plaintiff tried a group session for counselling but
was not comfortable and did not continue with that. Dr. Rossouw said that
in Powell River there was no psychiatrist until very recently, and only one
psychologist who charges $150 per hour. A psychiatrist is now available one day
a week and has an 18-month waiting list. Dr. Rossouw said for Ms. Yungen
to receive individual therapy she would have had to travel outside Powell River
which involves either one or two ferry rides to get to the Island or the Lower
Mainland, and would be expensive. While Ms. Yungen did travel on occasion
to see specialists, I do not find it reasonable that she should be faulted for
not undertaking weekly or monthly regular trips to see a psychologist or
psychiatrist in another city.

[68]        
In these circumstances I do not find the defendant has proved that the
plaintiff failed to mitigate.

[69]        
Taking into account the pre-existing psychological and physical injuries
and the chance that Ms. Yungen would have developed psychological or
physical problems in future, even without the fall, and considering the cases
put forward by the parties, I set damages for pain and suffering at $70,000
which reflects a discount of about 40% from the $120,000 I would otherwise have
awarded.

2.              
Special Damages

[70]        
The parties agree that Ms. Yungen incurred out-of-pocket expenses
of $5,000 for yard care, home care and physiotherapy, chiropractic and medications
after deducting extended health care benefits. I therefore award that sum for
special damages.

3.              
Future Care Costs

[71]        
In order to recover damages under this head the plaintiff must prove
that there is a real and substantial possibility that she will incur future
care costs as a result of the injuries sustained in the accident. Those future
expenses do not have to be a medical necessity, but they must be medically
justified and reasonable: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33
(S.C.) at 78.

[72]        
Dr. Caillier recommended a multi-disciplinary chronic pain program
to address not only Ms. Yungen’s physical symptoms, but also her ongoing
psychological, emotional, and sleep symptoms. In her view that program provides
the best opportunity for Ms. Yungen to improve so that she can increase
her functioning and activities. I award $13,560 to cover that program in
Vancouver, and $1,000 to cover accommodation and travel expenses to attend the
program.

[73]        
Dr. Caillier also recommends a gym-based active rehabilitation
program involving 20 to 24 sessions with a kinesiology-based trainer. I award
$1,920 to cover that treatment.

[74]        
I do not award the costs of a psychologist since that was a
recommendation of Dr. Lanius in relation to post-traumatic stress disorder.
Insofar as it also may help with anxiety and depression, that is going to be
addressed by the chronic pain program.

[75]        
I award $3,025 to cover the treatment recommended by Dr. Blasberg
for the plaintiff’s temporomandibular joint problems.

[76]        
In total I award $19,505 for cost of future care.

[77]        
I am, in relation to all heads of damages, taking into account those
pre-existing injuries in determining an appropriate award.

4.              
Past Loss of Earnings

[78]        
The plaintiff had not worked full-time for eight years before the
accident due to a knee injury incurred as a home care worker. She engaged in
one session of respite care in 2007. The plaintiff acknowledges that it is not
likely that Ms. Yungen would have returned to full-time, full-year work,
but says that she was capable of working periodically, particularly in respite
care as she did in the fall of 2007 when she earned $4,500.

[79]        
The plaintiff also says that she lost rent from a tenant she would have
had but for the accident from May of 2008 to September of 2009 when she again
took on a tenant primarily because of financial need. The plaintiff claims loss
of rent of $9,600:  16 months at $600 per month.

[80]        
The only evidence at trial of past loss of income related to respite
care for Zachary, an autistic teenager. Ms. Kisschowsky, Zachary’s mother,
confirmed that Ms. Yungen was one of the few people who could deal with
Zachary and his special needs, and she had offered her the respite care
position, although Ms. Yungen had yet to complete the six-month
orientation process. That work was available six days per month at $150 per
day, or $900 per month. The plaintiff therefore claims lost past earnings of
$36,000 and lost rent of $9,600.

[81]        
An assessment of Ms. Yungen’s claim for loss of both past and
future earning capacity involves consideration of hypothetical events. The
plaintiff is not required to prove those hypothetical events on a balance of
probabilities. The hypothetical event is to be given weight according to its
relative likelihood:  Athey v. Leonati, para. 27. Accordingly, the
plaintiff must prove that there is a real and substantial possibility that but
for the injuries she would have earned more.

[82]        
With respect to lost rental income, the evidence was vague as to the
start date, rent, and length of the tenancy. I find that Ms. Yungen has, however,
established a reasonable and substantial possibility that she would have earned
rent but for the injuries. I set that chance of earning 16 months’ rent at 30%
and award $2,880.

[83]        
As for the work with Zachary, there is uncertainty about whether Ms. Yungen
would have been able to work with Zachary given her pre-existing knee problems,
back and neck issues, and given the potential for the facial complaints to
interfere with Ms. Kisschowsky’s willingness to hire or continue to employ
Ms. Yungen for that work.

[84]        
I set the chance of Ms. Yungen having earned money in that
employment at 20% and award $7,200.

5.              
Loss of Future Income Earning Capacity

[85]        
The same burden of proof and considerations apply to Ms. Yungen’s
claim for loss of future earning capacity. Ms. Yungen had not worked
regularly for many years before the accident and even in the two to three years
after she and her husband separated that was the case. She was 60 years old at
the time of the fall. While there is evidence that she could have worked with
Zachary providing respite care six days per month, I find that the plaintiff
has established only a 20% chance of doing that work. Given her pre-existing
physical complaints and apparent preference for being off work before the
accident (I refer to letters she wrote to doctors and others, to encourage them
to improve her chances of maintaining WCB coverage), I find it unlikely that
she would work past 65, and not to 70 or 75 as the plaintiff claimed.

[86]        
Accordingly, I award 20% of annual earnings of $10,800 for six years
which comes to $12,960. It is apparent that I am using the mathematical
approach to calculating these damages as set out in Perren v. Lalari,
2010 BCCA 140.

6.              
Loss of Housekeeping Capacity

[87]        
I accept that the plaintiff’s injuries are currently preventing her from
performing housekeeping duties fully and that she requires assistance. However,
it is likely that her condition will improve after treatment at the pain
clinic, participation in an active rehabilitation program, and a return to
regular exercise thereafter. In addition Ms. Yungen was likely going to
require some housekeeping assistance to age 75 given her pre-existing knee
problems which make kneeling and bending difficult. Taking these considerations
into account I award $4,500 under this head which is approximately two years of
weekly cleaning service.

SUMMARY

[88]        
In summary, I award the following:

[89]        
In the usual course costs would follow the event, with the plaintiff
entitled to costs at Scale B. Counsel have leave to speak to that issue if necessary.

The
Honourable Madam Justice L.A. Fenlon