IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130418

Docket: 43902

Registry:
Kamloops

Between:

Clarissa Hope
Moritz

Plaintiff

And

Sheila Dawn
Schmitz, Amanda Mercedez Murrell Hughes,

Cody William
Vieira and Kelly Lynn Sherwood

Defendants

Before:
The Honourable Madam Justice Gropper

Reasons for Judgment

Introduction

[1]            
The plaintiff Clarissa Moritz was the back-seat passenger in a motor
vehicle, driven by defendant Amanda Hughes and owned by defendant Sheila Schmitz,
on November 21, 2007 when it collided with a vehicle driven by the defendant Cody
Vieira. Liability is admitted.

[2]            
The remaining issue for determination is quantum of damages.

Facts

Before the accident

[3]            
When the accident occurred on November 21, 2007, Ms. Moritz was 17 years
old and in Grade 12.

[4]            
From a physical perspective, the plaintiff was a healthy teenager. She
was active in sports. She played volleyball, basketball and baseball. She also
enjoyed hiking.

[5]            
When she was sixteen, Ms. Moritz worked as a banquet server at the Days
Inn Hotel for about a year, alongside her mother and sisters. She stopped when
her mother stopped working there, which was just before the accident.

[6]            
Ms. Moritz has suffered from mental health issues since she was 12 years
old. She experienced depression, panic attacks, social anxiety and suicidal
ideation. Ms. Moritz was prescribed medication for anxiety and depression. The
medication did not help and she did not like the side effects.

[7]            
Ms. Moritz suffered from overdoses on psychiatric medication. Her school
attendance was irregular. Her family life was dysfunctional. She has a family history
of psychiatric illness and behaviour disorders, such as substance abuse,
suicide attempts and, in the case of her older sister, criminal behaviour.

[8]            
Just before the accident, Ms. Moritz suffered a significant loss: the
death of her father’s best friend, who was like a father to her. Ms. Moritz
says this event affected her mental stability. She was also affected by the
conduct of her mother’s boyfriend, who committed sexually intrusive acts upon her.
She says this occurred around the time of the accident.

The Accident

[9]            
The impact upon the vehicle in which Ms. Moritz was a passenger was
significant. As a result of the force of the collision, she hit her face on the
back of the driver seat in front of her. Ms. Moritz was wearing a seatbelt.

[10]        
Ms. Moritz says that after the accident, her hip hurt and her face felt “a
bit numb.” She felt sore in her neck, back and “everything pretty much.” She
felt cramped up and stiff. She did not want to walk anywhere.

[11]        
The numbness in her face lasted for about one or two hours and then it
was fine. The pain in her neck and back continued.

After the Accident

Physical and Mental Status

[12]        
Ms. Moritz stayed with Ms. Schmitz for a few days after the accident and
then returned to her mother’s home.

[13]        
After two or three weeks, she went to see her family doctor, Dr. S. A. de
Wet. Ms. Moritz says that her doctor is very busy and that it can take a few
weeks to get an appointment. She told Dr. de Wet that her injuries included deep
tissue damage through her back, two twists in her spine and jamming in her
right hip every once in a while.

[14]        
The pain in her back and spine has continued since the accident.
Currently, Ms. Moritz says her upper back tends to be the sorest. Her spine and
lower back also feel sore if she sits for too long. She suffers from headaches
about once a day or more, three or four times per week.

[15]        
Ms. Moritz says her anxiety attacks increased post-accident. They occurred
throughout the day, as often as ten times. In these panic attacks, her heart
races and she is unable to breathe. She feels “scared of everything.” Ms.
Moritz experienced panic and anxiety before the accident, but not to the same
degree of intensity. She believes this decline in her anxiety and mood is
caused by her stress and pain; her injuries have also intensified her thoughts
of suicide.

[16]        
Ms. Moritz believes the amplification of her depression and anxiety
after the accident caused her to get “kicked out of school.” She would not come
to school or would leave class because of her anxiety attacks. She even overdosed
a few times and had to go to the hospital.

[17]        
Although Ms. Moritz saw Dr. de Wet on other occasions in 2008, she says
she did not complain or keep her informed about the effects of the motor
vehicle accident upon her anxiety or mood. Although her injuries “played a big
part” in how she was feeling, Ms. Moritz considered that Dr. de Wet was too busy
to listen to her complaints about her feelings.

[18]        
Ms. Moritz describes a change in her physical activity after the
accident. She no longer plays basketball, volleyball or baseball. She does not
go hiking or boating or engage in outdoor activities. She goes to the gym every
once in a while and uses the treadmill or the elliptical trainer for fifteen to
twenty minutes. She may do circuit training for half an hour. She does not do
anything that engages her core or back because it makes her back sore. She may
go for a walk. She does not do any rough physical activity. Activities such as
sitting through a movie or going for a long car ride cause soreness,
particularly in her lower back. Ms. Moritz says, and her friend Brittani Dovauo
confirms, there has been a significant change in her personal life: she cannot
stay out late or go on long excursions by car. She does relaxed things now such
as watching movies or going to the mall.

[19]        
In September 2008, Ms. Moritz applied for income assistance as a person
with a disability through the provincial Ministry of Employment and Assistance.
She remained on that program until the summer of 2012.

Employment

[20]        
Ms. Moritz did not finish high school in 2008. She finished Grade 12
through an online course and received her graduation diploma in February 2010. Her
intention was to attend a professional hair stylist program right after high
school, but she was unable to attend because of her physical injuries and
mental status. In April 2011, she enrolled in a professional hair stylist
program, which was a ten-month, full-time program. She finished in February
2012 and received very high marks, graduating with a final mark of 89%.

[21]        
Ms. Moritz says that doing the course, particularly the bookwork, made
her back sore. Styling hair while she was standing up and holding her arms up
also made her back sore. Although she thought of quitting, she completed the
course.

[22]        
At the beginning of 2012, Ms. Moritz took a job at Cactus Jack’s
Cabaret, for two or three evenings a week, taking coats and checking patron’s
identification. The job ended when the company restructured in April 2012. She
did not get rehired. Her former supervisor at Cactus Jack’s claims he did not remember
her after she was laid off because she was unreliable; he says she did not have
the “drive” for her position. He acknowledged that she was in an entry level
position. She was on-call, fifth in line. In other words, if none of the four
individuals that were before her on the list were able to come to work, she
would be the next person called.

[23]        
After her graduation from the professional hair styling program, Ms.
Moritz began looking for a job in hair-dressing and obtained a position at
First Choice Haircutters in August 2012. The manager at the shop, Shawn Rielly,
says Ms. Moritz is an excellent employee. She earns her commission regularly. No
customer has complained about her or the services that she provides. She gets
along well with the staff. She works five days a week, eight hours a day with a
half hour lunch break. Ms. Moritz did not tell Ms. Rielly about the injuries
that she sustained in the accident. Ms. Rielly only learned of them when Ms.
Moritz’s counsel asked her to come to the trial as a witness.

[24]        
 Ms. Moritz is paid a guaranteed base rate and commission. She also
receives tips. Her average pay for a two week pay period is $760.00 and she
earns about $40.00 per day in tips.

Expert Reports

Physicians

Dr. S. A. de Wet

[25]        
Dr. de Wet prepared a report on December 19, 2008. This report describes
the appointment Ms. Moritz had with her on December 5, 2007. Dr. de Wet notes:
“[s]he noticed some memory loss problems as well as neck pain since the
accident. She had some interscapular and trapezius (upper back) stiffness.
Prior to this visit she attended to a chiropractor twice and has been using
ibuprofen to no effect.” Dr. de Wet referred her to a massage therapist and
prescribed Flexeril 10mg at night time.

[26]        
Dr. de Wet describes three other appointments with Ms. Moritz for
unrelated medical concerns.

[27]        
In her report, Dr. de Wet states: “[d]ue to some psychiatric concerns
unrelated to the accident long term disability form was completed on September
03, 2008 and therefore she is not currently working.”

[28]        
Dr. de Wet provided an update of her earlier report on March 31, 2010.
She describes a recent consultation with Ms. Moritz on March 26, 2010. She summarizes
the interview as follows:

We reviewed her current
symptoms. She was straight forward with her symptoms and explained her current
situation.

She mentioned having ongoing
issues with neck spasms and interscapular pain. She has been attending
chiropractor appoints every two to three weeks and has not been using any
regular pain medication. Her mood is stable but she still is experiencing
anxiety in larger group settings. She is no longer attending a psychiatrist and
is not on any psychiatric medication. Clarissa lives independently and is busy
completing her high school diploma. She plans to pursue a career in
hairdressing. She continues to be on long term disability for her mood and
anxiety disorders.

[29]        
Dr. de Wet diagnosed Ms. Moritz with a Grade II whiplash injury
involving the cervical spine and upper back, which was caused by the accident, as
well as persistent chronic myofascial pain in the upper and lower back regions.

[30]        
Dr. de Wet concludes that Ms. Moritz’s ongoing mood and anxiety disorder
are not related to the accident.

[31]        
She suggests that Ms. Moritz may have difficult pursuing a hairdressing
career due to memory problems.

Dr. Valerie A. Jones

[32]        
Dr. Valerie A. Jones, a psychiatrist, assessed Ms. Moritz at the request
of plaintiff’s counsel.

[33]        
In her report of February 27, 2009, Dr. Jones reviewed Ms. Moritz’s
medical history, specifically, her psychiatric history. She notes that Ms.
Moritz has suffered from psychiatric difficulties from the age of 12. Before
the accident, she experienced depressed moods, panic attacks, social anxiety
and suicidal ideation. She overdosed on psychiatric medication and had irregular
school attendance. Dr. Jones also notes that Ms. Moritz has experienced
“psychological turbulence in her family which has included sexual intrusiveness
on the part of a step-father and both psychological and physical neglect of her
needs.” Dr. Jones says Ms. Moritz has a strong family history of psychiatric
illness and behaviour disorders. She explains “severe family dysfunction is
intergenerational”.

[34]        
Dr. Jones then notes the increase in Ms. Moritz’s psychiatric symptoms
and the impact it had upon her schooling:

Since the time of the motor
vehicle accident, the Plaintiff has experienced panic attacks at a frequency of
up to fifteen per day. This frequency of panic attacks, along with mood
instability consisting of depressed moods and hypomanic episodes, has
contributed to an inability to proceed with schooling and the abandonment of
school attendance at some point in the 2008 calendar year.

[35]        
In the section titled “Psychiatric Opinion”, Dr. Jones refers to the
severe psychiatric illnesses from which Ms. Moritz suffers, which includes
Bipolar II Disorder, Panic Disorder without Agoraphobia and Societal Anxiety
Disorder. She opines that these disorders impair Ms. Moritz’s functioning to a
clinically significant degree. She further opines these psychiatric illnesses
will dominate through the course of Ms. Moritz’s lifetime and will prove to be a
“formidable challenge” for her.

[36]        
Dr. Jones describes the escalation of Ms. Moritz’s psychiatric symptoms
since the accident and notes the increase in severity of Ms. Moritz’s mood
disorder. She concludes:

Her mood disorder progressed
from a diagnosis of chronic, recurrent depressive moods to the more serious syndrome
of depressed moods alternating with hypomanic episodes, known as Bipolar II
Disorder. Her Panic Disorder increased in severity from a frequency of one
panic attack every two months to a frequency of up to fifteen panic attacks per
day in the immediate aftermath of the motor vehicle accident. Over time, the
severity of these panic attacks has decreased to its current frequency of once
to twice per day.

[37]        
Dr. Jones also documents a trend of improvement in the severity of
Ms. Moritz’s psychiatric illnesses in the six months preceding the preparation
of her report. As she describes it, Ms. Moritz has experienced a “growth spurt
of psychological maturity” and that her attitude towards life was becoming more
confident and positive. She also notes that Ms. Moritz was showing the
formation of some positive and pro-social life values, priorities and
ambitions.

[38]        
In respect of causation, Dr. Jones states:

… it is my opinion that the
motor vehicle accident of November 21, 2007 caused a worsening in psychiatric symptoms
of panic anxiety and mood instability, resulting in a speeded rate of
progression of the Plaintiff’s psychiatric illnesses. However, it is my opinion
that the motor vehicle accident in question did not cause the Plaintiff’s
psychiatric illnesses. Features of the Plaintiff’s psychiatric illnesses were
already present at the time of the motor vehicle accident in question and were
already progressing in severity. In my opinion, the Plaintiff would have, even
in the absence of the index motor vehicle accident, eventually qualified for
the fully developed psychiatric syndromes with which she is currently
diagnosed.

[39]        
Dr. Jones concludes:

… the motor vehicle accident
that occurred on November 21, 2007, has worsened for the Plaintiff the overall
clinical burden of severe psychiatric illness and some recurrent
musculoskeletal pain. If the accident of November 21, 2007 had never occurred,
it is quite unlikely that the Plaintiff would currently be experiencing this
chronic pain. As to the severity of her psychiatric illnesses, the impact of
the index motor vehicle accident has been modest. It is very probable that,
even in the absence of the index motor vehicle accident, the Plaintiff would
have eventually manifested the psychiatric illnesses with which she is
currently diagnosed. It is also quite possible that the severity of her
psychiatric illnesses would be just as significant at this point in time even
if the index motor vehicle accident had never occurred.

Dr. Lynne C. MacKean

[40]        
Ms. Moritz was examined by Dr. Lynne C. MacKean, a specialist in
physical medicine and rehabilitation, on April 16, 2012. Dr. MacKean considers
that Ms. Moritz has suffered from a grade II whiplash-associated disorder
involving the cervical spine and upper back, which was caused by the accident. Ms.
Moritz was diagnosed with chronic myofascial pain involving the neck, upper
back and shoulder girdle region as well as mechanical low back pain and
cervicogenic headaches. Dr. MacKean finds the ongoing headaches and problems with
her neck and back all relate to the injuries she sustained in the accident.

[41]        
Dr. MacKean is also of the view that the plaintiff’s pursuit of a career
in hairdressing may not be feasible given the plaintiff’s ongoing neck and back
pain. Dr. MacKean states:

[Ms. Moritz] would have
difficulty working in a job position that involved repetitive bending,
twisting, lifting, and carrying with the spine. She would have difficulty
working as a hairdresser because of holding a static position with her arms out
in front of her which would be aggravating for her neck and back pain on an
ongoing basis.

[42]        
Dr. MacKean recommends a vocational assessment as well as an active
rehabilitation program.

Dr. Kevin Solomons

[43]        
Ms. Moritz was referred to Dr. Kevin Solomons, psychiatrist, at the
request of the defence. His report is dated August 22, 2012.

[44]        
Under the heading “Facts and Assumptions”, Dr. Solomons refers to some
of the reports he reviewed and his interview of Ms. Moritz. Dr. Solomons refers
to
Dr. de Wet’s reports and her statement that Ms. Moritz’s ongoing mood and
anxiety problems were not related to the accident.

[45]        
He refers to Dr. Jones’ opinion that Ms. Moritz’s psychiatric state affects
her physical pain.

[46]        
Dr. Solomons also notes that Ms. Moritz informed him in the interview that
she felt depressed more often and that her depression and anxiety were worse
for about three or four years after the accident. Since then, she reported
improvement to him.

[47]        
Dr. Solomons provides the following opinion:

Clarissa Moritz is a 22-year-old single woman who was on long
term psychiatric disability at the time of the motor vehicle accident on
November 21^st, 2007.

In my opinion, Ms. Moritz does
not qualify for a psychiatric diagnosis as a result of the injuries she
sustained in this accident. This opinion is based on her significant psychiatric
history and the fact that she was on psychiatric disability before and at the
time of the accident. Her family doctor’s records do not record significant
symptom exacerbation following the accident and do not identify the accident as
a cause of her psychiatric symptoms after the accident.

In my opinion, the injuries that
Ms. Moritz sustained in the motor vehicle accident probably did not lead either
to an exacerbation of her pre-existing psychiatric or to new psychiatric
problems.

Her pre-accident psychiatric
difficulties persisted after the accident. In my opinion, it is most likely
that the course of her psychiatric difficulties after the accident was related
to stressors unrelated to the accident, particularly to family dynamics, the
lack of stable supports and alleged sexual interference from her mother’s
boyfriend; therefore, it is my opinion that the symptoms Ms. Moritz has
experienced since the accident would have occurred even in the absence of the
accident.

She was psychiatrically disabled
before the accident and was not working at the time of the accident. The
accident did not, in my opinion, compound her pre-existing psychiatric
disability. She had no psychiatric requirement for time off work as a result of
the accident since she was already on long-term psychiatric disability, was not
working at the time of the accident and had no psychiatric disability arising
from the accident. She has recently begun working.

Occupational Therapist

[48]        
Ms. Moritz was referred to Carol Burden, an occupational therapist, for
a functional capacity evaluation. In the section of her report entitled
“ability to work as a hairdresser”, Ms. Burden states that from a physical
abilities perspective,
Ms. Moritz meets the majority of the physical demands for work as a hairdresser,
although she does not meet the full strength requirement of being able to lift
20 pounds through a full range on an occasional basis. Nor does she meet the upper
limb coordination requirement.

[49]        
In her summary, Ms. Burden states:

Ms. Moritz participated in 5.5
hours of testing on May 21, 2012. She demonstrated increased symptoms over the
course of the day. From a functional perspective her work productivity was
slowed. Baseline and repeat testing showed reduced function for upper extremity
movements toward the end of testing. Ms. Moritz’s reported pain symptoms did
not fully resolve overnight, indicating potential for a cumulative effect if
she were to work consecutive days. Based on assessment findings it is my
opinion that Ms. Moritz is best suited for work in the Sedentary (DOT) or
Limited (NOC) Demand at this time. As such, she is not well-suited for work as
a hairdresser (Light Demand). If she were to pursue such work she would likely
be more successful with part-time hours (i.e. 20 hours per week) and a
sympathetic employer. Additional points of consideration are slowed work pace
and the potential impact of previously diagnosed psychiatric difficulties.

[50]        
Ms. Burden also provides recommendations in respect of an active
rehabilitation program, which she estimates to be $60.00 per session, suggesting
a “typical” number of sessions as six to ten. She estimates the cost of massage
therapy averages $80.00 per session and suggests 11 sessions per year on an
ongoing basis. She recommends ongoing chiropractic treatment at a cost of $35.00
per session.

Vocational Rehabilitation

[51]        
Dr. Gordon Wallace, a clinical psychologist who specializes in
rehabilitation, counselling and evaluation, assessed Ms. Moritz’s pre-injury
and residual employability potential in his report prepared on June 25, 2012.

[52]        
Dr. Wallace is of the view that Ms. Moritz had many occupational options
open to her before the accident. She did not exhibit any physical limitations
and she demonstrated average abilities. Programs available to her would include
two years of full time attendance in a college diploma program. She also could
have considered direct entry occupational options that did not require
post-secondary education, an apprenticeship training program or a college
certificate level program.

[53]        
Dr. Wallace considers that from a physical perspective, Ms. Moritz’s
ongoing functional limitations will have a negative impact on the range of
occupational options available to her. Her reduced physical capabilities are
not compatible with skilled trades. Ms. Moritz will have to inform prospective
employers of her medical history, which could reduce her employment
opportunities. Dr. Wallace concludes that Ms. Moritz’s ongoing pain could
negatively affect her ability to meet the basic foundational skills required for
competitive employment.

[54]        
Dr. Wallace says that Ms. Moritz’s psychological functioning is of “likely
of significance” and that its severity may negatively affect her ability to perform
basic functional skills required for competitive employment. Dr. Wallace recommends
further counselling as well as vocational counselling and perhaps more formal
education.

Causation

The “But-For” Test

[55]        
Before addressing the quantum of damages that ought to be awarded to
Ms. Moritz, I must determine whether her injuries were caused by the motor
vehicle accident. Ms. Moritz must demonstrate, on a balance of probabilities,
that the defendants’ negligence caused an injury or exacerbated a condition to
justify compensation.

[56]        
The test to be applied was explained most recently in Clements. v.
Clements, 2012 SCC 32 at paras. 8 – 10:

The test for showing causation is the "but for"
test. The plaintiff must show on a balance of probabilities that "but
for" the defendant’s negligent act, the injury would not have occurred.
Inherent in the phrase "but for" is the requirement that the defendant’s
negligence was necessary to bring about the injury ─ in other
words that the injury would not have occurred without the defendant’s
negligence. This is a factual inquiry. If the plaintiff does not establish this
on a balance of probabilities, having regard to all the evidence, her action
against the defendant fails.

The "but for"
causation test must be applied in a robust common sense fashion. There is no
need for scientific evidence of the precise contribution the defendant’s
negligence made to the injury: [citations omitted.]

A common sense inference of
"but for" causation from proof of negligence usually flows without
difficulty. Evidence connecting the breach of duty to the injury suffered may
permit the judge, depending on the circumstances, to infer that the defendant’s
negligence probably caused the loss: [citations omitted.]

The “Thin Skull” and “Crumbling Skull” Rules

[57]        
A basic principle of damages in tort cases is that “the defendant need
not put the plaintiff in a better position than his original position and
should not compensate the plaintiff for any damages he would have suffered
anyway.” This is known as the “crumbling skull rule”: Blackwater v.
Plint, 2005 SCC 58 at paras. 78 – 81 (Blackwater).

[58]        
On the other hand, “the defendant takes his victim as he finds him”: Blackwater
at para. 79. This means that the defendant is liable for the plaintiff’s
injuries even if the injuries are unexpectedly severe owing to a pre-existing
condition. This is known as the “thin skull rule”.

Analysis

[59]        
There is no dispute between the parties that the physical injuries
suffered by Ms. Moritz are attributable to the defendants’ negligence, although
they disagree on the severity.

[60]        
Ms. Moritz says that the physical injuries she sustained made her
psychiatric condition worse: she has increased panic attacks, anxiety,
depression and suicidal ideation because of the pain and the stress caused by
her physical injuries. In other words, she relies on the “thin skull” principle.
She asserts that her family doctor is wrong in her conclusion that her mood and
anxiety disorder are not related to the accident. She relies on the evidence of
Dr. Jones, who concludes in her report that the accident “worsened the
Plaintiff for the overall clinical burden of severe psychiatric illness” and
that the chronic pain that she now suffers from is more severe because of her
psychiatric condition.

[61]        
The defendants rely on the opinions of Dr. de Wet and Dr. Solomons.

[62]        
In Dr. de Wet’s report of December 19, 2008, she specifically notes “[d]ue
to some psychiatric concerns unrelated to the accident long term disability
form was completed on September 03, 2008 and therefore she is not currently
working.”

[63]        
Dr. Solomons concludes the accident did not compound Ms. Moritz’s
pre-existing psychiatric disability. The defendants say the plaintiff was
psychologically disabled before and after the accident.

[64]        
In respect of Dr. Jones’ report, the defendants focus upon her statement
that it is “quite possible that the severity of her psychiatric illnesses would
be just as significant” even if the accident had not occurred.

[65]        
I do not accept the opinion of Dr. de Wet. Although Ms. Moritz continued
to consult with Dr. de Wet every few months, there is no information or
evidence from her family physician suggesting that her opinion regarding Ms.
Moritz’s psychiatric concerns as they related to the accident changed.

[66]        
Ms. Moritz testified that she did not discuss her psychological
difficulties with Dr. de Wet. She describes Dr. de Wet as a busy practitioner. She
claims it is difficult to arrange an appointment with her. As a result, she did
not complain to Dr. de Wet about how she was feeling during her consultations.
I accept this evidence.

[67]        
Dr. de Wet’s opinion that there is no relation between the accident and
Mr. Moritz’s psychiatric complaints does not refer to any examination or
observation that she undertook in respect of this opinion or any basis for her
conclusion. While her conclusion may be superficially reasonable, given that
Ms. Moritz did not discuss her feelings with her, it is equally clear that Dr. de
Wet did not ask Ms. Moritz about how she was feeling and whether she suffered
any change in her psychiatric function after the accident.

[68]        
I am further supported in my conclusion by the opinion of Dr. Jones, who
undertook a full psychiatric examination that included an extensive interview,
a mental status evaluation and a DSM IV diagnosis. She also made treatment
recommendations and reviewed the documentation, including the opinions of
Dr. de Wet. I prefer her opinion to the opinion of Dr. de Wet.

[69]        
I also prefer the evidence of Dr. Jones to that of Dr. Solomons. Dr.
Solomons seems to place significant weight on Dr. de Wet’s opinion, despite Dr.
Solomons’ opportunity to examine Ms. Moritz with the benefit of his psychiatric
training.
Dr. Solomons notes Dr. de Wet’s report does not indicate any “significant exacerbation
following the accident”. He also observes that Dr. de Wet’s records do not
identify the accident as the cause of her psychiatric symptoms after the
accident. He does not appear to rely upon Dr. Jones’s opinion despite the thorough
examination she conducted, and he does not provide a reason for that
non-reliance.

[70]        
Dr. Solomons goes on to suggest that, in his opinion, it is “most likely
that the course of her psychiatric difficulties after the accident was related
to stressors unrelated to the accident”, referring to matters that occurred
prior to the motor vehicle accident. He then concludes that the plaintiff would
have experienced the same symptoms even if the accident had not occurred.
Again, Dr. Solomons does not provide a foundation for his opinion that the problems
Ms. Mortiz faced before the accident are of greater significance than those she
faced because of the accident. He was aware that the plaintiff suffered from physical
injuries but he does not turn his mind to whether those injuries may have affected
her psychiatric functioning.

[71]        
Dr. Solomons does not explain his emphasis on pre-accident events. This
same observation in respect of Dr. Solomon’s emphasis on pre-accident events
was made by Mr. Justice Willcock in Jokhadar v. Dehkhodaei, 2010 BCSC
1643 at para 135:

Further, there is no reason, in
my view, to regard stressors other than the car accident as more
compelling or predominant. Dr. Solomons, in reaching that conclusion, ignored
clear evidence of the significance of the accident.

[72]        
I also note that Dr. Solomons’ final paragraph under the “Opinion”
section of his report is based on “facts” that are wrong. He says Ms. Moritz
was “psychiatrically disabled before the accident and was not working at the
time of the accident.” He fails to note that she was 17 years old and in grade
12 at the time of the accident. She was not psychiatrically disabled from
working. He says that “[s]he had no psychiatric requirement for time off work
as a result of the accident since she was already on long term psychiatric
disability … .” Again, she was not off work because of her psychiatric
disability before the accident; nor was she on long-term psychiatric
disability. In all of the circumstances, I am unable to accept Dr. Solomons’
opinion.

[73]        
The evidence clearly establishes that Ms. Moritz’s psychiatric condition
was improved. Dr. Jones notes that in late 2008 (six months before she prepared
her report on February 27, 2009), Ms. Moritz experienced a “growth spurt of
psychological maturity” that produced “a trend of improvement in the severity of
her psychiatric illnesses.”

[74]        
My conclusion in respect of causation is that the motor vehicle accident
caused Ms. Moritz’s physical injuries and chronic pain. It also caused a
worsening of the plaintiff’s psychiatric illness for about a year after the accident
and is likely a strong feature of her chronic pain. Since that time, the
plaintiff has experienced a decrease in the symptoms related to her psychiatric
condition. Nevertheless, as
Dr. Jones points out, Ms. Moritz suffers from severe psychiatric illnesses that
will “impair Ms. Moritz’s functioning to a clinically significant degree”. She
also notes that these psychiatric illnesses will dominate through the course of
Ms. Moritz’s said lifetime, posing a “formidable challenge.”

[75]        
I find the worsening of Ms. Moritz’s psychiatric illness after the
accident must be reflected in the quantum of damages that I award in respect of
non-pecuniary loss and past loss of wage.

[76]        
As her psychiatric state improved in the year before the trial, I cannot
find that her “formidable challenge” in the future is caused by the accident. I
must take this into account in respect of the quantum of damages for future
loss of income/capacity.

Damages

Mitigation

[77]        
The defendants assert that Ms. Moritz has failed to mitigate her damages.

[78]        
They rely on Dr. Jones’ opinion that “the pathophysiology of the
plaintiff’s musculoskeletal pain has been highly influenced by the
neurobiological deregulation of her psychiatric illnesses”. The defendants
argue that this has worsened her muscular spasms and tension, exaggerating her
discomfort. The defendants suggest this problem is treatable. Despite this
fact, Ms. Moritz has not sought counselling and has declined medication. Nor
did she follow the rehabilitation suggestions made by Dr. MacKean, including
counselling and active rehabilitation. If she had done more, she potentially
could have reduced the impact of her injuries.

[79]        
Once the plaintiff establishes that the defendants are liable for her
injuries, the burden of proof shifts to the defendants. In order to prove the
plaintiff did not meet her duty to mitigate, the defence must establish that
she acted unreasonably and that reasonable conduct would have reduced or
eliminated the loss. Whether the plaintiff acted reasonably is a factual
question.

[80]        
The court in Gregory v. Insurance Corporation of British Columbia,
2011 BCCA 144 at para. 53 affirmed the test for failure to mitigate set out in Chiu
v. Chiu, 2002 BCCA 618 at para. 57, which provides:

The onus is on the defendant to prove that the plaintiff could have
avoided all or a portion of his loss.  In a personal injury case in which
the plaintiff has not pursued a course of medical treatment recommended to him
by doctors, the defendant must prove two things: (1) that the plaintiff acted
unreasonably in eschewing the recommended treatment, and (2) the extent, if
any, to which the plaintiff’s damages would have been reduced had he acted
reasonably. …

[81]        
The defendants have not proven that Ms. Moritz has acted unreasonably
and that reasonable conduct would have reduced or eliminated her loss. Their
position that she did not suffer any worsening of her psychiatric symptoms and
their reliance on Dr. Solomons’ opinion that she “does not qualify for a
psychiatric diagnosis as a result of the injuries she sustained in this accident”
contradicts the defendants’ position in respect of mitigation, particularly with
regard to their allegations that she failed to undertake counselling and
medication. Further, the defendants have not provided evidence upon which I can
conclude that counselling or medication would have reduced the symptoms of her
psychiatric illness. While Dr. MacKean recommended a vocational assessment as
well as an active rehabilitation program, the defendant has not called evidence
that such an active rehabilitation program was available to her from a
financial perspective.

[82]        
I find the defendants have not proven the plaintiff failed to mitigate
her loss.

Non-Pecuniary Damages

[83]        
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. The list of factors
to be considered by the court generally address the plaintiff’s age, the nature
of the injury, the severity and duration of the pain, the level of disability
and loss of lifestyle or impairment of life. The compensation should be fair to
all parties and fairness is measured against all awards made in comparable
cases, which provide only general guidance: each case must be decided on its
own facts.

[84]        
Dr. MacKean describes Ms. Moritz’s injuries as

1.    
Grade II whiplash associated
disorder involving the cervical spine and upper back.

2.    
Chronic myofascial pain involving
the neck, upper back, and shoulder girdle region.

3.    
Mechanical low back pain.

4.     Cervicogenic headaches.

[85]        
Dr. MacKean considers the neck and back symptoms to likely be chronic.

[86]        
I find that Ms. Moritz suffered injuries that continue to be symptomatic
five years after the accident in her neck, upper back, shoulders and low back.
She also suffers from continuous headaches. These symptoms are chronic.

[87]        
I find that Ms. Moritz’s psychiatric illness worsened for approximately
one year after the accident and has since improved, although it is likely a
contributing factor for her chronic pain.

[88]        
The plaintiff suggests an award of non-pecuniary damages of $100,000.00,
relying on the decisions of Johnstone v. Canada (Attorney General), 2006
BCSC 1867 ($100,000.00); Wong v. Hemmings, 2012 BCSC 907 ($100,000.00);
and Kasidoulis v. Russo, 2010 BCSC 978 ($90,000.00).

[89]        
The defendants assert the plaintiff’s non-pecuniary damages should be in
accordance with those assessed in Sandher v. Hogg, 2010 BCSC 1152
($40,000.00) and Piper v. Hassan, 2012 BCSC 189 ($50,000.00).

[90]        
In considering the authorities provided, I note the defendants’ proposed
award does not take into account the worsening of Ms. Moritz’s psychological
illness. Her psychiatric issues have apparently subsided with maturity.

[91]        
I find that $80,000.00 is an appropriate award given that the accident
significantly affected the plaintiff in respect of her physical and mental
health. The symptoms of the physical injuries are chronic and are likely to
have an impact upon her future health.

Past Income Loss

[92]        
It is in this context, of delayed entry into the workforce, where the
worsening of Ms. Moritz’s psychiatric symptoms affects her the most. The
accident occurred when she was in grade 12 and, as Ms. Moritz notes, the
increase in her depression and anxiety after the accident required her to
abandon high school. She finally completed school in February 2010. But for the
accident, her intention was to attend a professional hairstylist program after
she graduated from high school in June 2008. She was not able to do so because
of her physical injuries and worsening psychiatric illness. Her ability to
enroll in the course to qualify as a professional hairstylist and obtain a job
was postponed.

[93]        
I assess Ms. Moritz’s wage loss to commence as of May 2009. This assumes
she would have graduated from Grade 12 in June 2008, commencing the ten month
course immediately after and beginning her work as a hairstylist in April 2009.

[94]        
In determining her past wage loss, I refer to Ms. Moritz’s net pay at
First Choice Haircutters, which averages approximately $760.00 per pay period
net after taxes and deductions. This amounts to a loss of wages of $19,760.00
per year.
Ms. Moritz also receives approximately $40.00 in tips per shift, which equals
$10,400.00 per year. I assess her past wage loss on the basis of $2,500.00 per
month.

[95]        
If one assumes that Ms. Moritz would have started work in May 2009, she
would have earned eight months of income for 2009, which equals $20,000.00.
Ms. Moritz received $10,464.64 in income assistance. Her net loss of income for
2009 is $9,535.00.

[96]        
I apply the same principles for 2010 and 2011, based on a 12 month year.

My assessment of the plaintiff’s loss of wages for 2010 and 2011 is as follows:

[97]        
In 2012, Ms. Moritz started her employment in the beginning of August.
She therefore suffered a loss of 7 months of wages from her hairdressing
profession, amounting to $17,500.00. She received social assistance benefits of
$7,219.36 and $763.22 at the cabaret. Her loss for 2012 is therefore $9,500.00.

[98]        
The plaintiff’s total loss of earnings for the period of May 2009 to
August 2012 is $57,760.00.

[99]        
I must also consider that even without the motor vehicle accident causing

Ms. Moritz’s psychiatric illness to worsen, there is a reasonable likelihood that
she would have missed work as a result of her psychiatric illness in any event.
Further, she may have decided to take days off or a holiday during those years
had she been working as a hairstylist. I therefore assess a 10% negative
contingency to her past loss of income, which results in an award under this
head of damage of $52,000.00.

Loss of Capacity/Future Earnings

[100]     The
plaintiff argues that her mental health issues are under control now and do not
affect her ability to work. However, the soft tissue injuries and chronic
myofascial pain from which she suffers undermine her ability to perform her
chosen profession and will do so for the long term. The plaintiff relies on the
report of
Dr. MacKean, who suggests that Ms. Moritz will have difficulty working as a
hairdresser because of the requirement of holding a static position with her
arms out in front of her. This position is aggravating for her neck and back.

[101]     Ms. Burden
suggests that part-time hours, 20 hours per week, would be more tolerable. I
have considered Dr. Wallace’s suggestions in terms of retraining and achieving
sedentary work, but as he points out, the physical limitations of a sedentary
job would also reduce her employability. Ms. Moritz is happy with her work as
hairstylist. She is accomplished at it and but for the pain it produces, it is
appropriate for her. I do not consider it realistic that she would seek
retraining and a job with lighter duties. I find her future loss of capacity
must be based on her employment as a hairstylist.

[102]     In
considering a loss of capacity claim, I refer to Perren v. Lalari, 2010
BCCA 140 at para. 32:

[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.

[Emphasis in
original.]

[103]     I find the plaintiff has proved the real and substantial possibility
of being unable to continue working on a full time basis because of the
injuries that she sustained in the motor vehicle accident.

[104]     I conclude the plaintiff will begin to reduce her hours of work from
age 40, in 2030 to 50% of her full time workload and that she will work part-time
until the age of 70. Her future loss of capacity must also be adjusted to
accommodate the formidable challenge she faces with regard to psychiatric
illness. Referring to table 5 in the report of Robert Carson of Associated
Economic Consultants Ltd. of
August 3, 2010, I assess a loss of $15,000.00 (half of $30,000.00) per year from
age 40 to 70. Based upon the multiplier provided, $13,339.00, the calculation
of loss is $200,000.00.

[105]     Ms. Moritz’s psychiatric conditions will also play a part in her
future income capacity. This aspect of her loss is not to be borne by the
defendants, as I have determined that her symptoms of psychiatric illness
worsened after the motor vehicle accident but improved about a year before the
trial. I attach a 20% negative contingency to my assessment of this loss. The
plaintiff’s loss under this head of damages is $160,000.00.

Cost of Care

[106]     Ms. Burden in her functional capacity evaluation recommends an
active rehabilitation program with a kinesiologist for eight sessions at
$60,000.00 and provides recommendations for massage therapy and chiropractic
treatments.
I assess Ms. Moritz’s cost of care as $30,000.00.

Special Damages

[107]     The plaintiff claims special damages of $3,361.93 in massage
therapy, chiropractic work and mileage. The special damages are awarded on that
basis.

Summary

[108]     I award the plaintiff the following quantum of damages:

Costs

[109]    
The plaintiff is entitled to the costs of this
action.

“Gropper J.”