IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121031

Docket: 9581

Registry:
Rossland

Between:

Maria Vincenzina
Peck

Jessica Rose Peck

Plaintiffs

And

George Eldon Peck

Defendant

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

I

[1]            
The plaintiff, Jessica Peck, claims damages against the defendant,
George Peck, for injuries arising out of a motor vehicle accident on January 4,
2007, near Grand Forks, B.C.

[2]            
 On that date, the plaintiff, and the three other members of her family
were on their way from Rossland to Kelowna, where the plaintiff, then a student
at the University of Alberta, was to catch a flight to Edmonton after visiting home
over the Christmas vacation.  The defendant, her father, suddenly lost control of
the vehicle. It began to spin and then rolled as it left the pavement. It ended
up some distance from the highway, lying on the driver’s side. Liability has
been admitted. The claim of the other plaintiff, Ms. Peck’s mother, has been
settled.

[3]            
The plaintiff was dozing off  when the accident occurred. She thinks the
vehicle rotated several times, and  recalls her father saying “I’m sorry I
can’t make it stop.” She recalls being afraid that someone would die, and that
the whole event seemed to take a long time. She recalls loud noises and a fear
that something would intrude the passenger compartment. She recalls being
thrown around despite the fact that she was wearing a seatbelt.

[4]            
When the vehicle came to a rest, the plaintiff recalls being very
concerned about the others. She and her father and brother were able to leave
the vehicle through the passenger side of the car but her mother remained unable
to exit the vehicle. The plaintiff stayed with her until ambulance personnel arrived.

[5]            
The plaintiff said she was initially in shock. She and the other members
of her family were taken to the Grand Forks hospital. She became aware of a pain
between her shoulder blades. They remained until late in the afternoon when a
family friend arrived to take them back to Rossland. They stopped at a wrecking
yard to retrieve their belongings from the car and then headed home. The
plaintiff said she was feeling very anxious about being in a vehicle.

[6]            
Once home, the plaintiff said she felt stiffness throughout her body.
She said that over the next few days she was pulling bits of glass out of her
hair and from the edge of her mouth. She went to see her family physician, Dr.
Hii, for assessment of her neck and back pain.

[7]            
It was important for the plaintiff to get back to school so she arranged
to fly out of Castlegar a few days later. The short drive from Rossland to
Castlegar filled her with anxiety and she experienced a panic attack in the
car. She said she felt faint and nauseous and was hyperventilating. She felt
she was losing sensation in her arms and legs.

[8]            
The plaintiff says that since the accident she has had continuing neck
and shoulder pains and that her anxiety continues. She says these ongoing physical
effects affect her home life and her housework. She finds she is tired at the
end of the day and that lifting, or any sudden jerking motion, will aggravate
her pain.

[9]            
When the accident occurred the plaintiff was living with her boyfriend,
Brandon Tanchuk. He was an engineering student and she was taking courses
leading to a business degree.  The plaintiff says that the effects of the
accident made it harder to study although she acknowledges that she did well, and
completed her degree. The program included a practical work experience
component. The plaintiff was also able to work a summer job as a cashier at a
grocery store.

[10]        
The plaintiff’s complaints of anxiety were treated by a series of
counselling sessions with a therapist named John Bossio. The plaintiff has not
found these particularly effective. She says she still suffers from forms of
anxiety that include nightmares in which she relives the accident. She has
attempted to learn to drive conventionally, by having her boyfriend take her to
parking lots to practice and, more formally, by taking a driving course, but
has been unable to overcome her fears to the point that she had enough
confidence to take a driving test.

[11]        
If one takes a longer view, it appears that the plaintiff was never particularly
motivated, either before or after the accident, to learn to drive. She had made
no attempt to get a license in the more than three years she had been eligible
before the accident occurred. Her circumstances as a student, preoccupied with
course work and living on a limited budget, and the fact that she could rely on
Mr. Tanchuk for transportation in the last two years or so, made getting a
license a low priority while she was in school.

[12]        
Now that the plaintiff has completed her degree in marketing and is
aware of the opportunities available in the workforce, she has found the lack
of a driver’s license a limitation. She applied for one job at a fencing and construction
services company that she felt she could not take because it involved driving.
It paid $42,500 per year, with an opportunity for some additional remuneration.
She has since taken a $36000, per year job as an athletic event planner that
does not require her to drive.

[13]        
The plaintiffs most recent efforts to learn to drive seem to go well
until other traffic becomes a factor. Then she says she still finds that anxiety
overwhelms her.

II

[14]        
The plaintiff was medically assessed by her own doctor, Doctor Hii, who
summarized her treatment from January 4, 2007 to June 9, 2010, (the date of the
report) as follows:

In summary then, Jessica suffered a motor vehicle accident
and related soft tissue injury on her right upper back. She had ongoing pain
and stiffness and muscle spasm from the injury. For this she was seeking
treatment from the physiotherapist as well as massage therapist. Going over her
file I did originally refer her to see a massage therapist on February 23,
2007. I also specifically referred her to see an acupuncturist on February 22,
2008. I suspect she was referred to see a physiotherapist by a physician in
Edmonton. As Jessica lives in Edmonton and only sees me when she comes back to
visit her family in Trail, I only see her sporadically for follow-up of her
motor vehicle accident related aches and pains. I must say that I am surprised
to see both physio and massage therapy concurrently as I personally only use one
or the other treatment at a time. I personally find it difficult to evaluate
the benefits of each modality when both are concurrent.

Having said that, I give Jessica full credit for persevering
with her full time studies and part time job duties despite the aches and
pains, which she finds she was only able to do with the treatments.

As it has been more than three
years since the original motor vehicle accident and with her having continuing
ongoing pain, I would strongly encourage her to see a physiatrist rather than
relying on passive modalities of treatment as these are likely providing only
temporary relief as evidenced by the numerous treatments rendered.

[15]        
In an undated update that appears to have been written two years or so
later, Dr. Hii summarized his further observations:

Since my previous report from Mr. Kew dated June 9, 2010 I
actually had very little contact with Jessica since she resides in Edmonton and
only comes back here to visit her parents every now and then because of her
schedule with school and work. I actually have only saw her three times since
the previous report.

On June 29, 2010 I saw Jessica and she was complaining of
multiple aches and pains in her back as well as her neck. The pain was bad
enough that she was not able to do school work at times. She had been seeking
relief from massage therapy which seemed to help reduce her analgesic use
enabling her to continue her school as well as her work. She also stated she
had been practicing yoga for approximately one year and this has been slowly
helping her. On this date of the visit examination showed palpable tenderness
of her right upper back as well as her left upper back. She was given a refill
of her medication for an unrelated medical illness as well as with her Tylenol
3 and Cyclobenzaprine for her ongoing aches and pains since the motor vehicle
accident. On this particular visit Jessica also mentioned that she was seeing a
psychologist to help her deal with the posttraumatic stress disorder with her
driving.

Following that I saw Jessica briefly on February 24, 2011 as
she was visiting her parents from Edmonton. She requested a refill of her
Tylenol 3 and her Flexeril. In the interim Jessica has seen a physiatrist in
Edmonton and was given Novocain injections. She actually saw Dr. Aziz Alfeeli a
physical medicine and rehabilitation specialist in Edmonton. Jessica saw Dr.
Alfeeli on December 15, 2010 and he diagnosed her as having myofascial neck and
shoulder pain which is more prominent over the right parascapular area. He
performed trigger point injections and was scheduled to see Jessica in
follow-up for rehabilitation and possible repeat injections.

Following that I saw Jessica again very briefly on October
11, 2011 for a refill of her medication. These medications are not related to
the MVA. Jessica did in fact confirm on this brief visit that she had ongoing
chronic soft tissue pain.

It has been more than five years
since Jessica’s initial motor vehicle accident on January 4, 2007. I have not
seen her since October 11, 2011 nor have I received any further consult note
other than the initial consult note from Dr. Alfeeli. I am hoping that with the
physiatrist intervention and Jessica’s ongoing yoga and other modalities of
treatment, her pain will gradually subside over time. However, it is entirely
conceivable that after five years if she is currently still having pain and
soreness, these will linger on. On the positive side despite this pain and her
symptoms, she has been able to carry on with her studies and her job and I absolutely
give her full credit for being so determined given her physical discomfort and
suffering.

[16]        
On June 13, 2012 the plaintiff saw Dr. George M. Pugh, a psychologist,
for a medico-legal opinion on her complaints of anxiety since the accident. He
took an extensive history and reviewed her medical and social history. He
summarized his impression as follows:

The neck pain is constant, but the severity changes, at times
being “moderate” while at other times being “extreme”. Sometimes the neck pain
is so extreme she is unable to take on any tasks. Sometimes she feels she must
take pain medication and stop what she is doing.

Ms. Peck reports experiencing flashbacks of the accident.
These are triggered by a number of elements. The strongest trigger is that of
being in a car. When she is in a car strong and upsetting memories of the
accident and anxiety provoking feelings from that time return to her. She also
experiences these types of flashbacks when watching movies that show a motor
vehicle accident. These flashbacks are relatively easily triggered into
consciousness and interfere with and disrupt whatever activities she is
involved with at the time. Even when she thinks of being in a car a flashback
often occurs. As well, when she feels similar sensory experiences, (a momentary
weightless feeling for example) a flashback will be triggered. This often
occurs when she is in an elevator that descends quickly.

To remedy this problem, she avoids, as best she can, being in
cars. She had been hopeful that these flashbacks would fade with time. She did
not have a license at the time of the accident and she tried to learn to drive
a year afterwards. However, when driving, she would panic and her breathing
would become shallow and rapid. As a consequence, she fears that she will not
be able to learn to drive. She has continued to take driving lessons but on
each occasion a panic attack has been triggered. She reports her belief that
for her, driving a vehicle will be dangerous until she is able to manage her
anxiety. She “froze once” when turning which added to her fears.

Ms. Peck’s physician directed her to see a therapist and she
attended psychologist, Mr. John Bossio. Her meetings with him were helpful, but
she still has not been able to drive. There are certain assignments at work
that she cannot accept, particularly those that involve driving to a work site.

Ms. Peck reports that her
boyfriend had been very helpful and supportive. However, he finds it difficult
to see her in distress. Generally, she describes herself as uncomfortable
around cars and in traffic. She does feel better travelling by bus and the bus
has become her preferred means of transportation.

Psychological Consequences of
Accident:

In my opinion, Ms. Peck suffers
from post traumatic stress disorder. She meets the criteria for this disorder
as described in the Diagnostic and Statistical Manual of Mental Disorders
(Fourth Edition, Text Revision). Typical symptoms of this disorder are shown on
left side of the table below with Ms. Peck’s situation on the right.

DSM-IV-TR     Diagnosis
of Post Traumatic Stress Disorder

_____________________________________________________________

Typical Symptoms:                  Ms.
Peck’s Reaction to the Motor Vehicle accident:

A near death experience.        She
believes that she was near death the accident.

Her response
included            When the car was rolling she experienced

intense fear.                            intense
fear. She relates that she was terrified that she would die or a family member
would die.

The accident is frequently

re-experienced.                       Ms.
Peck, as reported about, dreams of the accident, even into the present, on a
weekly basis. She avoids conversations regarding driving. She is not able to
drive as it is too upsetting.

She suffers
extreme

anxiety.                                    When
trying to drive she becomes extremely anxious. She has not been able to obtain
a driver’s license.

Avoid recollections
of

accident.                                  Even
when asked about the accident, she would have obvious difficulty speaking about
it. She felt anxious attending the interviews required for this assessment.
There are certain aspects of the accident that she cannot recall.

Increased arousal.                  She
is not sleeping well (a sign of increased arousal). She suffers from more
concentration problems now than before the accident. She is now more hypervigilant,
especially when in a car, than she used to be. She is no longer able to fall
asleep in a car.

Impairment in

occupation.                              Not
being able to drive limits her ability to complete assigned work tasks.

Physical
Concerns: She suffered a sore right side of the neck and sore upper back
immediately following the accident. This has gotten worse over the years, and
the pain has spread to the mid-back and both sides of her neck.

Diagnosis:

Axis I: (Clinical
Disorders)       309.81 Post Traumatic Stress Disorder (chronic)

Axis II:
(Personality

Disorders)                               314.00
Attention Deficit Hyperactivity Disorder (mild)

Axis III: (General
Medical

Conditions)                              Back
and Neck pain

Axis IV:
(Psychosocial/

environmental
problems)        Frequently anxious, cannot drive

Axis V: (Global
Assessment

of functioning)                         65:
Moderate Symptoms – mild impairment in social and occupational functioning;
occasional panic attacks especially when attempting to drive a vehicle

Treatments
Attended:

After 2000
she attended massage therapy on a weekly basis then twice a month for a number
of years. She also attended immediately following the accident, physiotherapy
every other week for several years. The physiotherapist believed that she has
“plateaued” in terms of her recovery.

His physical
therapies although very helpful in the beginning now, she reports, only give
temporary relief. She reports that it has been painful to take part in the
therapy but the pain suffered is worth the relief it allows, the relief she
experiences for three or four days.

She tried
acupuncture for five sessions. As well she has tried deep tissue acupuncture
with a physiotherapist every second week for two years. Further, she exercised
on her own to alleviate stress and to rehabilitate. She practices yoga in an
effort to heal her body. She has attended a physiatrist to hep her with
physical pain. He recommended certain stretches that that she has been
practicing. As well, the physiatrist has administered Novocain in her back which
she did not find particularly helpful.

[17]        
Dr. Pugh administered several psychological tests. He summarized the
results as follows:

Results: Ms. Peck’s personality test scores were, for
the majority of the scales, within the statistically average range and consistent
with the average of the norm group (a representative sample of the general
population). For example, her scores on measures such as “Mania”, “Paranoia”,
“Schizophrenia”, “Borderline Features”, “Antisocial Features”, “Alcohol
Problems”, “Drug Problems”, “Aggression”, “Suicide Ideation” and “Stress” were
all within the normal and healthy range reflective of normal and healthy
functioning.

Ms. Peck did score in the problematic range on some scales.
Her highest score, indicating significant problems, was recorded on the
“Traumatic Stress” scale. Her answers on this scale are consistent with
comments she made during the interview: “I keep reliving something horrible
that happened to me. – very true”; “I’ve been troubled by memories of a bad
experience for a long time. – very true”; “I keep having nightmares about my
past. – very true”.

Her next highest score was also recorded in the problematic
range on a measure title “Anxiety – Affective”. This high score was brought
about by her response to anxiety related questions which included the
following: “I am so tense in certain situations that I have great difficulty
getting by. – very true”; “I am easily startled. – very true”; “I seldom feel
anxious or tense. – false”.

Ms. Peck also scored highly and in the problematic range on a
measure of “Somatization”. Her responses included the following: “I suffer from
a lot of pain. – very true”; “I have a bad back.” – very true”; “I seldom have
complaints about how I feel physically. – false”.

Aggression Test:

Ms. Peck scored in the average
range on all of the measures of hostility indicating no problems with the
expression of anger. For example, she scored in the healthy range on a summary
measure of “Overall Aggression” and on the sub-scales of “Physical Aggression”,
“Verbal Aggression”, “Anger” and “Indirect Aggression”.

[18]        
Dr. Pugh’s conclusions were as follows:

Ms. Peck suffers from psychological concerns: As pointed out
above, Ms. Peck suffers from the characteristics of post traumatic stress
disorder (PTSD). The psychological testing confirms the diagnosis as her
answers to the questions contained in the personality questionnaire were
consistent with this diagnosis.

PTSD is a type of anxiety disorder wherein an individual, who
has suffered a near-death event, experiences high levels of anxiety for a
significant period of time after the near death event. Ms. Peck is this type
anxiety-ridden person. She has nightmares where she re-experiences the
accident. As well, during her non-sleeping life, she has flashbacks which are
triggered by environmental stressors that remind her of the accident. She
becomes anxious when speaking about the motor vehicle accident.

Although the aftermath of the accident has been difficult for
her, to her credit, she has still managed to move forward in her life. She has
managed to progress through significant milestones including graduating from
university, finding and maintaining a full-time job and establishing a healthy
heterosexual relationship. However, there has been a cost. She is limited in
the tasks she can complete at work. Her spouse worries about her well-being.
Physically, she cannot be as athletic as she has been in the past. She is not
able to skate; a hobby she very much enjoyed as a youth. She is taking up
running as part of her job and in an effort to establish a healthier lifestyle;
but at times the running is too difficult. Finally, she struggles with sleep
which means that often she has to take on the tasks of everyday life in spite
of feeling of fatigue.

It is my considered opinion that
her lifestyle has been significantly hindered by the accident and the
psychological and physiological aftermath.

[19]        
Dr. Pugh suggested a course of treatment in a further letter dated
September 21, 2012:

It is my opinion that one year of treatment (50 one-hour
sessions at $170 per hour = $8500) could possibly eliminate or moderate the
psychological sequelae she has experienced as a result of the motor vehicle
accident of January 5, 2007.

If the one year of treatment is
not successful, medication may be the next best approach.

III

[20]        
The defence sent the plaintiff to Dr. Stanley Semrau, a Forensic
Psychiatrist. In an extensive interview, Dr. Semrau recorded the following
psychiatric history post-accident:

Psychiatric History
Post-accident

Pain-Related Issues

In regard to the impact of pain on her emotions, she is
irritable just a little and moderately frustrated due to a limitation in
activities, which varies short-term along with her pain and functioning levels.

In regards to the impact of pain on her behaviour, she
perseveres with activities as much as possible despite the pain. She does not
dwell on pain significantly. When asked if she has observed any change in pain
perception or tolerance due to her emotional state or stresses, it is a little
worse at times of stress, but that tends to go along with more time spent
studying at a desk etc., so it is hard to say if her emotional stress plays a
significant role or not.

She has not observed any vicious circle with pain, decreased
functioning, negative thoughts, negative moods or muscle tension.

Depression

Ms. Patch [sic] does not feel she has suffered from any
significant depression post-MVA, except for normal ups and downs in life, for
example job search disappointments lately.

Cognitive/Memory Symptoms

In regards to the impact of pain on her concentration and
focus, the pain is an interference and distraction, but just varies with pain
levels and has not otherwise changed since onset. When her pain is lower, her
concentration and focus “seems normal allowing for my ADD”.

Driving Anxiety

In regards to driving and traffic anxiety, Ms. Peck becomes
physically tense, mentally anxious and tense. She is excessively on the lookout
for traffic dangers and excessively fears being involved in another accident.
She engages in some “back seat driving” behaviour when a passenger. Her driving
anxiety is reportedly moderate.

Aggravating factors on her driving anxiety include long trips
and winter driving. She has never had a driver’s license. After the accident
her boyfriend bought a car and tried to teach her to drive, but she suffered
from panic attacks, even when just thinking about driving.

So she could proceed to drive, she saw a psychologist in 2007
or 2008. The therapy went well with the psychologist who saw her more in the
summer months and the therapy is ongoing. She has also had driving lessons and
classes. She admits that other activities have gotten in the way and she has
procrastinated due to her anxiety, so progress has been very slow and she still
does not have her driver’s license.

She does not avoid essential trips, but avoids optional trips
somewhat. Her driving anxiety began right away after the accident and then she
suffered panic attacks when attempting to drive herself. After the January 2010
MVA she experienced somewhat worse driving anxiety for a while, but got back to
where she had been soon afterwards. The January 2010 MVA was reportedly very
scary, but far less than the January 2007 MVA. Lately her driving anxiety has
been 50-60% of its post-MVA worst.

Post-traumatic Stress

In regards to post-traumatic stress symptoms, she experiences
intrusive distressing recollections of the MVA only as a step in related
thoughts. She denied acting or feeling as if the MVA were recurring. She has
experienced distressing dreams about the actual MVA or similar scenes or
sensations. Early on these dreams occurred nightly and lately have occurred
most nights. She has developed night terrors as well.

She makes efforts to avoid thoughts, feelings, or
conversations associated with the MVA because it is an unpleasant topic,
because of the negative effects it has had on her life and due to the actual
MVA memories.

She has a diminished interest or participation in significant
activities, just for activities where participation is limited or prevented by
other symptoms. She denied a feeling of detachment or estrangement from others
and restricted emotional feelings, but other symptoms often interfere with her
actual ability to maintain good relationships.

She does not have a sense of foreshortened future and she has
not been hypervigilant, but there likely has been some increase in startle
response since the MVA.

Psychiatric Treatment
Post-accident

She has carried on taking Wellbutrin and now Dexedrine. She
saw a psychologist, Dr. John Bossio, in Edmonton for 3-4 years in spurts which
varied a lot over time and ranges about 2-8 times per year. With each spurt
there has been progress, but never a major sustained period of progress.

Other Post-accident
Information

In regards to any significant new stressors post-MVA, there
have been some extended family deaths, but these deaths have had no major or
prolonged impact.

Recent Clinical Status

In the most recent four months Ms. Peck’s mood has been okay,
except for some stress adapting to job searching and a less structured life,
and uncertainties about her education and career. She denied being tearful or
feeling guilty. She has not felt hopeless, helpless or experienced suicidal
ideation. Her self-esteem and confidence has been quite good. Her level of
motivation, interest and pleasure is good, except for activities where
participation is limited/prevented by physical symptoms. She has socialized a
moderate amount.

In the same timeframe she has suffered from panic attacks and
phobias purely in driving or traffic situations. She has not suffered from
obsessions or compulsions.

In the same timeframe she has not slept with medication,
except for occasionally taking melatonin in the last few months. She falls
asleep quickly and then her sleep is broken. Pain, bad dreams, nightmares and
terrors interfere with her sleep. She sometimes snores, but does not have sleep
apnea spells.  She achieves 8-9 hours of actual sleep. On waking it is variable
on how rested she feels, but she usually feels well rested. During the daytime
she feels alert. Her energy level has been 8/10, compared to 10/10 prior to the
first accident.

In the same timeframe there have been no problems with her
appetite, eating habits or weight. She appeared a healthy weight. There have
been no problems with her libido or sexual functioning.

Interview Mental State and
Behavioral Observations

During the interview, Ms. Peck was cooperative and appeared
to be straightforward in providing information. There were no apparent significant
language or cultural barriers to the interview. Ms. Peck was appropriately
dressed, groomed and socially engaging, though she was a bit shy, consistent
with her self-description.

Ms. Peck did not appear physically uncomfortable during the
interview and did not act on my invitation at the outset of the interview to
get up or move around to deal with any physical discomfort, though she did take
a couple of washroom breaks. No obviously exaggerated pain-related behavior or
other abnormal or inappropriate behavior was observed.

Ms. Peck appeared to be in a reasonably good mood, often
cheerful and normally responsive to humor. At no point did Ms. Peck appear
tearful or significantly depressed. No tendency to abnormal mood elevation was
observed. Ms. Peck was moderately anxious at the outset of the interview, but
this gradually partially subsided as rapport developed.

Ms. Peck did not appear to have any significant difficulties
with long-term or short-term memory. Toward the end of the interview, Ms. Peck
made a number of spontaneous and provoked accurate references to things said
earlier in the interview, demonstrating intact short-term memory to that
extent.

There were no apparent difficulties with concentration,
attention or thought processes. Ms. Peck had no particular difficulty
understanding and answering questions, even when they were more complicated,
such as requiring comparisons between different time frames and using numeric
rating scales, taking into account educational level and occupation. Ms. Peck
spoke in a clear and articulate fashion, to the extent consistent with
educational level and occupation.

During the interview, Ms. Peck appeared to be somewhat
psychologically-minded, apparently able to demonstrate significant and
seemingly accurate insights into the relationships between emotions, thought
processes, symptoms and behavior.

There were no reported symptoms
or mental state or behavioral observations suggestive of paranoia or psychosis.
No tendency to dissociation was observed. No other mental state or functioning
difficulties were observed during the interview. Mental state was generally
consistent with self-report.

[21]        
Dr. Semrau addressed the plaintiff’s travel anxiety as follows:

Travel Anxiety /
Posttraumatic Stress

Regarding the possibilities of vehicle travel
anxiety/avoidance and posttraumatic stress symptoms, the available information
indicates that:

·       
vehicle travel anxiety has been significant, particularly during
the winter

·       
vehicle travel avoidance has been substantial, particularly in terms
of lack of overcoming anxiety to the point of achieving success learning to
drive

·       
some other limited posttraumatic stress symptoms have occurred,
particularly nightmares

In considering the possibility of posttraumatic stress
symptoms, it has been taken into account that many of the symptoms which could
potentially be considered relevant to such a diagnosis are best explained by
other factors including physical symptoms and other types of emotional
symptoms. It is also important to note that although there is significant
mental focus on accident-related thoughts and feelings, these largely concern
the impact of the accident on Ms. Peck’s subsequent symptoms and functioning,
rather than the actual accident experience itself.

Everything considered, a diagnosis of moderate vehicle travel
anxiety/avoidance is definitely warranted. A full diagnosis of Post Traumatic
Stress Disorder is not warranted, though there are some partial PTSD symptoms
present, e.g. nightmares.

These symptoms have diminished over time to the point that
Ms. Peck feels that lately they are at about 50-60% of their post-accident
worst. Therefore this condition appears to be in partial remission. In my
opinion, greater levels of recovery have not been achieved as yet due to the
fact that psychological therapy has been quite intermittent, which has been
acknowledged as being due to procrastination and focusing on other priorities.
Complete recovery requires a commitment to a more concentrated, intense period
of psychological therapy and associated “homework”.

It is very likely that these problems were caused virtually
entirely by the accident of January 4, 2007, with some temporary exacerbation
by the MVA of January 2010.

Emotional Symptoms

The available information describes some mild depressive and
anxiety symptoms post-accident. The factors which have likely made a
contribution to Ms. Peck’s post accident emotional symptoms include:

·       
Genetic/hereditary risk factors (see page 25)

·       
Ms. Peck’s demonstrated vulnerability to the development of
emotional symptoms (see Pre-Accident History — Opinion page 4).

·       
Continuation of Ms. Peck’s pre-accident emotional difficulties
(see Pre-Accident History — Opinion page 4), including some vulnerability to
depression, and stress of coping with ongoing Attention Deficit Disorder (ADD)
and ongoing treatment with stimulant and antidepressant medications, including
side effect issues.

·       
Emotional effects of accident-related pain, other physical
symptoms and functional limitations.

·       
Emotional effects of accident unrelated pain, other physical
symptoms and functional limitations (e.g. pain from chronic gynecological
disorder, and from the January 2010 MVA injuries, which she describes as having
temporarily exacerbated her earlier symptoms).

·       
Ms. Peck feels that her general functioning and productivity have
been somewhat decreased as a result of effects of her injuries. She describes
making her studies her top priority and so continuing to do increasingly well
in her studies (most recently A’s and A-’s), despite some decrease in studying
efficiency, which she relates to the direct and indirect effects of pain. She
feels this has been somewhat at the expense of less time and energy available
to be devoted to recreation and socializing in order to be successful in her studies.

·       
Now that she is graduated, Ms. Peck was uncertain regarding her
academic and career future. She has been thinking seriously about entering a
Masters in Architecture program, but is unsure about this. This seems to cause
significant anxiety.

·       
She has intended to work for a while subsequent to her obtaining
her Bachelors in Commerce June 2011, but has been unable to obtain work so far
and finds this stressful.

Everything considered, the causation of Ms. Peck’s
post-accident emotional problems seems to relate to a mixture of the above
factors. In the interview, Ms. Peck particularly noted that mood difficulties
have been quiet mild and seemed to primarily relate to “the normal ups and
downs in life, e.g. job-search disappointments lately”. It is overall likely
that the direct and indirect effects of this MVA have made a fairly small
contribution to what would have likely otherwise been some mild depressive and
anxiety symptoms even if the January 2007 MVA had not occurred.

Regarding diagnosis, Ms. Peck’s post-accident emotional
problems have been minimal, so most likely no specific diagnosis is warranted.
At most, a diagnosis of very mild Adjustment Disorder with Depressed and
Anxious Mood might have been appropriate during certain limited periods of time
post-MVA.

Most recently, Ms. Peck’s emotional symptoms have been very
mild, essentially amounting to the normal expected stresses associated with
educational and employment challenges and uncertainties. Therefore this
condition appears to be in full remission.

Physical Symptom-Related
Issues

Ms. Peck reported to the writer having observed a possible
tendency for physical symptoms experience to be exacerbated at times of stress
or worsened emotional states, though only to a rather limited extent. She also
noted that such periods of time tend to be associated with stresses which
involve activity pattern changes, for instance increased studying before
university exams, which might also play a role in exacerbating muscular tension
and pain.

She was therefore unable to clearly state as to whether or
not she has observed emotional stresses in themselves playing a significant
role in exacerbating her pain experience.

It does not appear from the available information that Ms.
Peck has reported pain levels disproportionate to objective physical findings.
Physical medicine specialists who have assessed Ms. Peck do not appear to have
particularly suggested that the physical symptoms cannot be substantially
explained on the basis of physical findings and injuries.

Everything considered, in my
opinion a psychiatric diagnosis of Pain Disorder does not appear appropriate
for Ms. Peck, though this possibility cannot be completely ruled out. However
it is likely that the experience of pain mildly aggravates Ms. Peck’s psychological
symptoms, as well as contributing to other difficulties including sleep problems,
fatigue, memory and cognitive difficulties.

[22]        
Dr. Semrau gave the following opinion about the plaintiff’s post
accident treatment:

Post-Accident
treatment — Opinion

The following opinion regarding post-accident mental health
treatment is based on the relevant sections of the Interview (page 14 below)
and material in the appended Post-Accident Treatment Facts Summary (page 35
below).

In my opinion the mental health treatment which has been
undertaken to date has been appropriate, but nevertheless in some respects
insufficient.

The ongoing treatment with Wellbutrin and Dexedrine (which
replaced Ritalin) has apparently been appropriate and effective with respect to
Ms. Peck’s pre-MVA problems of ADD and depression, as demonstrated by her good
academic performance and lack of significant depressive relapse post-MVA. These
treatments should continue.

However I am concerned that the psychological treatment over
the past 2 years has only occurred “in spurts”, ranging between 2-8 sessions
per year. This is consistent with Ms. Peck’s acknowledgment that there has been
procrastination and avoidance with respect to her therapy for vehicle travel
anxiety/avoidance.

Ms. Peck feels that there has been progress with these
problems, with symptom intensity now roughly 50-60% of the post-MVA worst, but
she has still not obtained her driver’s license nearly 5 years later. This is
an unusually slow rate of progress, in my opinion attributable to the intermittent/inconsistent
therapy pattern.

As mentioned above, complete recovery requires a commitment
to a more concentrated, intense period of psychological therapy and associated
“homework” regarding vehicle travel anxiety and obtaining her driver’s license.
If this occurs, full recovery for all practical purposes from these symptoms is
very likely to occur.

No other mental health
treatments are required.

[23]        
His prognosis was as follows:

My estimate of prognosis for Ms. Peck’s mental health difficulties
and functioning is as follows, assuming provision and compliance with the
treatments recommended above and keeping in mind that this opinion does not
relate to the prognosis or functional disability issues related to physical
injuries/disorders, which are outside my particular specialty area of
expertise.

First it should be noted that due to the lack of Ms. Peck
having fully engaged in all potentially beneficial types of treatment as
described above so far, estimates of prognosis at this stage are necessarily
somewhat rough and could likely be significantly refined once at least
preliminary benefits of an enhanced treatment program can be evaluated.

There is a mixture of significant positive and negative
factors to consider in estimating Ms. Peck’s prognosis for mental health
recovery.

Positive factors:

·       
good response to mental health treatment prior to the accident

·       
lack of complicating mental health conditions such as substance
abuse or personality disorder

·       
lack of seriously disabling physical conditions

·       
past history of good work ethic, accomplishment and productivity

·       
mental health symptoms do not appear chronic of entrenched

·       
mental health symptoms are relatively mild and not currently
significantly disabling

·       
good mental health recovery progress post-accident

·       
good mental health treatment resource availability

·       
improved treatment is likely to result in further recovery

·       
positive recovery attitude

·       
good family/social support system

·       
good prospects for further successful education and employment

·       
good work motivation

·       
Ms. Peck is relatively young

Negative factors:

·       
some family history of mental health problems

·       
significant mental health history prior to the accident,
continuing post-MVA

·       
limited treatment compliance in terms of psychological therapy
for vehicle travel anxiety/avoidance

Everything considered, in my opinion Ms. Peck’s mental health
prognosis for MVA-related mental health problems is very good, in that with the
recommended further treatment, it is very likely that she will achieve full
remission.

With respect to the pre-MVA problems of Attention Deficit
Disorder and depression, these appear to be largely in remission with treatment
and are likely to continue as such, as well as probably gradually diminishing
over time, to the extent that a reduction in treatment may well be possible.

Regarding Ms. Peck’s work and educational capacities, any
mental health symptoms arising from this accident have not been significantly
limiting in past and are unlikely to interfere in future either.

In my opinion there is no
significant risk of any substantial deterioration or relapse in Ms. Peck’s
mental health condition in the future. There is no reason to think that any
future significant mental health complications are likely to arise.

[24]        
During the course of the trial counsel advised the court that they had
agreed that the plaintiff’s psychological condition could properly be described
as Post Traumatic Stress Disorder, obviating the need to Dr. Pugh and Dr.
Semrau to address the differences between them. The defence submission is that
this is not otherwise a concession as to the severity of the plaintiff’s
condition, which, it submits, is accurately summarized by Dr. Semrau.

[25]        
Lastly, the plaintiff saw Dr. N.K. Reebye, a specialist in Physical
Medicine and Rehabilitation, who concluded:

In my opinion, the most likely injuries sustained by Ms.
Jessica Peck were mild to moderate soft tissue injuries in the region of her
upper back as a result of acceleration/deceleration type of forces to which her
body was subjected in the accident of January 4, 2007.

There were no external injuries. Some tenderness was noted at
T4 (midline of upper back). There were no abnormalities noted on initial
examination at the hospital and x-rays were within normal limits.

Ms. Jessica Peck was able to continue with her day-to-day
activities and her schooling activities in spite of her aches and pains.
Clinical examination at present is within normal limits, with some areas of
mild tenderness in her neck and her back.

Ms. Jessica Peck was diagnosed as having attention deficit
disorder prior to the accident. She had an episode of depression, which she
states had settled down with the use of medication.

At a later date, she developed anxiety attacks, especially
while driving, for which she is following treatment with a psychologist.

I will leave detailed discussion
regarding her psychological problems and their causes to the expertise of a
psychiatrist or a psychologist.

[26]        
Dr. Reebye ‘s recommendation for future treatment was as follows:

In my opinion, Ms. Peck does not require treatments with a
herbologist for injuries sustained in the motor vehicle accident of January 04,
2007.

She does not require ongoing physiotherapy. She will benefit
equally well by exercising on her own, doing stretching and strengthening
activities and performing relaxation techniques. She is practicing Yoga, which
in my opinion, is appropriate and will be useful.

She used to swim previously.
Swimming is useful for the type of symptoms she experiences. However, it is not
very easy for her to go swimming at present for practical reasons.

[27]        
Dr. Reebye also noted that he did not expect permanent physical
impairments to occur as a result of the plaintiff’s injuries, or a need for any
further medical investigations. He did not feel that the plaintiff needed
household assistance.

IV

[28]        
The plaintiff says that her recreations have been curtailed by her
physical injuries. She attempted to get back to figure skating but found her
neck and back pain made it uncomfortable. She has found fencing, another of her
recreations, difficult. She says overnight hiking with her boyfriend is now out
of the question.

[29]        
The plaintiff also complained of headaches that occur when her neck and
back pain is at its worst. She described her anxiety if she has any sensation
of weight loss, such as one experiences occasionally in elevators. She says she
is still very anxious in cars. She says her pain is continuous and denies telling
Dr. Semrau that she had improved to a point where the pain was only 50-60%
on what it had been.

[30]        
She says the cost of an intense driver education program in Alberta is
$1,499 plus tax. She says her boyfriend now does the housework. She is troubled
by the sense that she may never get over her symptoms.

[31]        
In cross examination, the plaintiff acknowledged that she continues on
medications that addressed her pre-accident ADHD condition. She acknowledged
that her relationship with Brendon Tanchuk is stable and loving, and that they
plan to marry.

[32]        
The plaintiff allowed that she had been on medication for depression
until some time after the accident but has discontinued it since. She believes
her depression is now in the past.

[33]        
The plaintiff acknowledged that she has recently taken up running for
exercise, although her back pain sometimes prevents her from doing it.

V

[34]        
The plaintiff’s mother and Mr. Tanchuk both testified. Maria Peck
recalled the accident and recounted the plaintiff’s panic attack in the car a
few days later. She also said that the plaintiff cannot do any lifting, and
that she knows Mr. Tanchuk does housework that the plaintiff would otherwise
do. In cross-examination she acknowledged that the accident did not affect the
plaintiff’s ability to get on with her studies. She also acknowledged that she
has not seen the plaintiff having panic attacks in the last 4 years, but
believes she still suffers from them.

[35]        
Mr. Tanchuk testified that he is pursuing a Master’s Degree in Chemical
Engineering. He has been with the plaintiff since 2005 and says they plan to
marry when he is out of school. He said the plaintiff cannot perform certain
household chores and listed a number of things he felt she would have trouble
doing including overnight hikes, snowmobiling and skydiving, something he
apparently does.

[36]        
Mr. Tanchuk confirmed the plaintiff’s serious anxiety about driving and
riding in cars. He has noticed the plaintiff’s sleep disturbances but says she
has always been a “rambunctious” sleeper.  In cross examination he agreed that
the plaintiff’s physical condition has improved to some degree since the accident.

[37]        
Dr. Reebye’s description of the plaintiff’s injuries as “mild to
moderate” is not entirely consistent with the plaintiff’s suggestion that her
pain is constant, although it varies in intensity, and has not significantly
improved. The plaintiff’s subjective assessment is also not consistent with Mr.
Tanchuk’s observation that she is somewhat improved, or with Dr. Semrau’s
suggestions that she noted some improvement to about 50-60% of the pain she
experienced shortly after the accident.

VI

[38]        
I accept that the plaintiff is sincere and was honestly trying to be
accurate in her testimony. I also accept that the supporting witnesses were as
well. The courts frequently deal with cases where the plaintiff’s subjective
reports of pain must be evaluated. In Price v. Kostryba (1982), 70
B.C.C.R. 397, McEachern, C.J.S.C. (as he then was) observed:

The assessment of damages in a moderate or moderately severe
whiplash injury is always difficult because plaintiffs, as in this case, are
usually genuine, decent people who honestly try to be as objective and as
factual as they can. Unfortunately, every injured person has a different
understanding of his own complaints and injuries, and it falls to judges to
translate injuries to damages.

2     In
this endeavour, we attempt to apply legal principles; otherwise every damage
award would stand alone in isolation from other cases, depending largely upon
how each individual plaintiff reacts and responds to his injuries and how he or
she describes them. This question was discussed in Andrews v. Grand & Toy
Alta. Ltd., [1978] 2
S.C.R. 229 at 243-44, where Dickson J., speaking for the court,
said:

·       
The focus should be on the injuries of the innocent party.
Fairness to the other party is achieved by assuring that the claims raised
against him are legitimate and justifiable.

[39]        
In the present case, the plaintiff’s description of physical pain is
somewhat at odds with her demonstrated abilities. She does appear to carry on
at the relatively high level of activity despite the pain she says she suffers.
She has finished a university degree with good marks and is capable of a
significant range of physical activities, from work as a cashier in a food
store, to her more recent involvement in running. I accept that some forms of
exertions are more difficult than they were before, including some housework,
motions like reaching above her head, and the fine skills needed to figure
skate. It must be said that the activities Mr. Tanchuk identified as beyond the
plaintiff’s scope include some that few people could pursue without some
discomfort, not to mention anxiety.

[40]        
I think the plaintiff’s subjective complaints, while accurate from her own
perspective, are not objectively as serious as one might otherwise believe. I
accept Dr. Reebye’s estimation that the injuries suffered in the accident were
“moderate”. In submission, the plaintiff suggests that while Dr. Reebye does
“not anticipate” permanent physical impairments to occur as a result of the
injuries sustained by her in the motor vehicle accident, he does not give any
anticipated time for her to recover from her injuries or suggest any treatment.
She submits that it appears that Dr. Reebye may be overlooking an element of
disability due to chronic pain.

[41]        
I think the obvious inference is that the plaintiff is not physically
disabled in any significant way and that she should get better over time. Her
subjective complaints have no particular medical correlative but do inhibit her
from some strenuous activities. I think she has suffered what amounts to a
moderate soft tissue injury with some residual pain.

[42]        
I accept that the plaintiff’s perception of pain may be intensified by
anxiety about whether she will ever overcome the effects of the accident and
her principal complaint of Post Traumatic Stress Disorder. Respecting this
aspect of the claim, Dr. Pugh and Dr. Semrau differ on her prognosis: Dr.
Semrau is more optimistic, while Dr. Pugh is more guarded.

[43]        
Both suggest a period of intense therapy. Dr. Semrau takes the view that
recovery is “very likely to occur” if there is committed engagement with
psychotherapy and the associated “homework” necessary to acquire the skills required
to operate a vehicle.

[44]        
Dr. Pugh suggests that one year of weekly treatments “could possibly
elevate or moderate the psychological sequelae” of the accident, but he does
allow that if that does not work medication would be the next approach to take.
The plaintiff submits that Dr. Pugh’s view is more realistic.

VII

[45]        
I think it quite clear that the plaintiff has had other things on her
mind over the years than addressing her fear of driving. I accept that the
trauma of the accident provoked this reaction. I do not fault the plaintiff,
but it seems clear that the way past this block is to address it squarely and
to persist through therapy and practice until the problem is overcome. The
pattern to date has been rather sporadic attendance upon the therapist and of
quitting when driving becomes uncomfortable. The plaintiff has shown an ability
in other endeavours to apply herself to challenges and to succeed at what she
sets out to do. I think her prognosis, assuming full effort, is less guarded
than Dr. Pugh suggests and closer to what Dr. Semrau predicts.

[46]        
The plaintiff submits that a future loss of capacity is established, not
only on the basis that she has shown a real and substantial possibility to
future loss, but can show that such loss has already started to occur. This is
based on the suggestion that the plaintiff already knows that certain positions
that tend to be more highly paid (based on the fencing company example) will be
closed to her until she is able to obtain a driver’s license. She submits that
doing so will, at a minimum, require time away from work to attend therapy.
Assuming that that goes well, she submits she will have lost several years of
opportunity. She says that if she now starts at a position requiring driving,
it will be at a lower salary than she would already have achieved had she been
able to secure such a position upon graduation.

[47]        
In another dimension the plaintiff submits that her other physical
deficits will preclude her from work at the heavier end of the scale, although
she acknowledges that that was not a likely direction for her.

[48]        
The principles applicable to loss of capacity are set out in Perren
v. Lalari, 2010 BCCA 140. There, Garson J.A. observed:

30     Having
reviewed all of these cases, I conclude that none of them are inconsistent with
the basic principles articulated in Athey v. Leonati, [1996] 3
S.C.R. 458, and Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229. These principles are:

·       
1.  A future or hypothetical possibility will be taken into
consideration as long as it is a real and substantial possibility and not mere
speculation [Athey at para. 27], and

·       
2.  It is not loss of earnings but, rather, loss of earning
capacity for which compensation must be made [Andrews at 251].

31     Furthermore,
I conclude that there is no conflict between Steward and the earlier
judgment in Pallos. As mentioned earlier, Pallos is not authority
for the proposition that mere speculation of future loss of earning capacity is
sufficient to justify an award for damages for loss of future earning capacity.

32     A
plaintiff must always prove, as was noted by Donald J.A. in Steward,
by Bauman J. in Chang, and by Tysoe J.A. in Romanchych, that
there is a real and substantial possibility of a future event leading to an
income loss. If the plaintiff discharges that burden of proof, then depending
upon the facts of the case, the plaintiff may prove the quantification of that
loss of earning capacity, either on an earnings approach, as in Steenblok,
or a capital asset approach, as in Brown. The former approach will be
more useful when the loss is more easily measurable, as it was in Steenblok.
The latter approach will be more useful when the loss is not as easily
measurable, as in Pallos and Romanchych. A plaintiff may indeed
be able to prove that there is a substantial possibility of a future loss of
income despite having returned to his or her usual employment. That was the
case in both Pallos and Parypa. But, as Donald J.A. said in Steward,
an inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss.

[49]        
The defendant’s position is that the plaintiff has not demonstrated any
income loss from her injuries. The defence submits that the plaintiff lacked a
driver’s license for several years before the accident, and that her claim relating
to her fear of driving should be assessed in light of her assertion to Dr.
Semrau that she was only 50-60% as injured as she had been shortly after the
accident. The defence submits that Dr. Semrau should be believed
respecting this assertion, which the plaintiff has since denied.

[50]        
The defence also submits that the plaintiff’s failure to diligently
attempt to get past her fear of driving by addressing it more aggressively
ought not to be the defendant’s responsibility.

[51]        
The defence submits that there is no “real and substantial possibility
of a future loss” because:

a)         In Dr. Semrau’s opinion the Plaintiff’s
driving anxiety will be cured following intense psychological counselling;

b)         The Plaintiff has successfully secured
gainful employment since graduating from university;

c)         The Plaintiff successfully participated in
cooperative employment programs while at university;

d)         The Plaintiff
successfully completed her university degree on time and with high marks.

[from
the submissions]

all of which are indications that with some effort the
plaintiff can overcome her fear.

[52]        
The defence submits that the plaintiff’s position is akin to that of the
plaintiff in Stein v. Kline 2012 BCSC 573) at paragraph 47:

As the defendant notes the
evidence is that the plaintiff has returned to his full time and pre accident
recreation activities. He has also continued to perform additional part time
work in construction. While he said he has modified his work and recreation
activities, there is no evidence to support a real and substantial possibility
of future income loss arising from a loss of his capacity to earn income.

[53]        
The plaintiff’s position is that she is entitled to damages as follows:

[54]        
The defendant submits the following:

VIII

[55]        
I think the plaintiff’s physical injuries are not disabling in any
material sense but that they are nagging and inhibit her from some forms of
more strenuous daily activities. She suffers from a mild form of Post Traumatic
Stress Disorder that manifests in anxiety, occasional nightmares, and a fear of
driving and, to some extent, riding in automobiles. Her past conditions do not
appear to intersect with the injuries suffered in the accident. It does appear
from the history and on the evidence, including the plaintiff’s presentation in
the witness box, that she is rather sensitive, and I think her description of
her pain and its duration reflect this. While I am mindful that the principle
is that a tortfeasor must take his or her victim as they are, I think the
plaintiff’s description of her discomfort is somewhat at odds with her level of
activity. I have said I think she is truthful but the law dictates an attempt
compare her subjective description and her apparent functionality with cases
that are similar. Taking these factors into account I assess the plaintiff’s
general damages at $45,000.

[56]        
The difference between the parties over special damages is over one
item, a $750 charge (+GST) for driver’s training, which the plaintiff attempted
but abandoned because of her anxiety. I think the plaintiff would likely have
required driver training in any event, given the low priority she placed on
driving in the past. In light of what I think is proper in the future, I
disallow this disbursement, and allow special damages at $10,677 as urged by
the defence.

[57]        
With respect to future cost of care, I think the $8,500 necessary for
psycho therapy should be allowed, as well as the $1574 or so, ($1,499 + tax),
for driving lessons in conjunction with that therapy. I accede to the allowance
for transportation costs and consider the plaintiff’s proposal that cost of
future care be fixed at $12,000 reasonable in the circumstances. This allows
the plaintiff to take an aggressive approach to attaining a driver’s license
and addressing the psychological aspect of her injuries. If she fails to do so,
given the positive prognosis I have accepted, it will be a matter for which the
defendant cannot continue to be held responsible.

[58]        
Given the plaintiff’s demonstrated competence at a reasonable level of
physical endurance, examples of which are the grocery store job and her current
interest in running, I do not think there is a realistic prospect that she
will suffer a future loss of income due to her physical limitations. I accept
that the plaintiff’s vulnerability to stress, even after she is operating a
motor vehicle, may give rise to a possibility of income loss in the future, but
the allowance for such a possibility should be modest. I fix $30,000 for future
loss of income earning capacity, which I consider a real but relatively remote
possibility.

[59]        
The plaintiff is entitled to costs unless counsel have further
submissions to make.

__”T.M. McEwan”_________________

The
Honourable Mr. Justice McEwan