IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20130503

Docket: S101533

Registry:
Vancouver

Between:

Amy Sefton

Plaintiff

And

Doppelmayr CTEC
Ltd., Intrawest ULC, Intrawest Mountain Resorts Ltd., Blackcomb Skiing
Enterprises Limited Partnership and Whistler Mountain Resort Limited
Partnership

Defendants

Before:
The Honourable Mr. Justice Betton

Reasons for Judgment

Introduction

[1]            
The plaintiff, Amy Sefton, seeks an assessment of damages for her
injuries received on December 16, 2008. She was a passenger in a gondola cabin
when a tower supporting the cable to which the cabin was attached collapsed.
She was injured in the resulting fall of the gondola cabin. It did not strike
the ground but rather dropped some of the distant towards the ground.

Background

[2]            
The plaintiff is a 27-year-old English citizen. In November 2008, she
arrived from the United Kingdom with her then boyfriend, James Prendergast. She
had a work visa. Her intention was to work and snowboard in Whistler for at
least one season, but the length of her visit was not predetermined.

[3]            
The plaintiff graduated from university in the spring of 2008 with a
Bachelor of Science in Environmental Hazards. She worked the summer after her
graduation with Red Bull and then made the trip to Canada/Whistler. She had
secured employment in Whistler with the Four Seasons Hotel as a ski concierge
before leaving England.

[4]            
Prior to the incident, the plaintiff was an active and outgoing
individual. She was raised by her mother, and from age 10, her stepfather was
part of the family unit. Her mother is a pharmacist and her stepfather an
engineer. The plaintiff had an interest in snowboarding but engaged in other
recreational and sporting activities.

[5]            
The plaintiff’s physical and psychological health was good. She had
injured her right knee approximately one year before coming to Canada. She had
fallen while “dry skiing” and twisted it, but it was not a serious injury.

[6]            
The incident giving rise to this claim occurred when the plaintiff was
completing a day of snowboarding. She and Mr. Prendergast were in a cabin on
the Excalibur Gondola with two other men who were strangers to them. They were
nearing the Village of Whistler when Tower 4 failed. The top section of the
tower carrying the cable separated from the balance of the tower and fell
toward the ground. That caused the plaintiff’s cabin to drop toward the ground
in two stages that were in rapid succession.

[7]            
The sudden motions of the cabin put the plaintiff to the floor, but she
is not clear as to exactly what her movements were from her seated position
immediately prior to the tower failure. She may have struck the ceiling of the
cabin. Mr. Prendergast had a cut to his head when he contacted the ceiling
of the cabin.

[8]            
The gondola cabin remained suspended in the air. After approximately three
hours, a rescuer was able to reach the cabin and each of the four occupants,
including the plaintiff, was lowered to the ground individually via a rope and
harness apparatus.

[9]            
The plaintiff and others were taken by shuttle for treatment at the
Whistler medical facility. She was assessed and released. She and Mr. Prendergast
took a taxi home.

[10]        
The plaintiff’s physical injuries were soft tissue injuries to her neck,
back, and thigh. She had a large haematoma on her thigh and she complained of
sore knees.

[11]        
The incident was a traumatic incident for the plaintiff and caused
ongoing psychological issues. The specific diagnoses are set out in the analysis
portion of this decision.

[12]        
The plaintiff’s employment since the accident has been varied.
Immediately following the incident, she missed approximately two weeks of work
but thereafter continued with the Four Seasons Hotel as a ski concierge until
February 2009. She left that employment to begin contract work with Watermark
Communications Inc.

[13]        
Watermark Communications is a Whistler-based company that contracts to
organize events for clients. The plaintiff’s position initially was as an
“account manager – client service” and is most recently as an operations
manager. Her current pay is $3,600 per month. Her work with Watermark
Communications has been full‑time while she is working, but it has not
been full-year employment. The periods of employment with Watermark have been
February to May 2009, January to May 2010, December 2011 to May 2012, and
November 2012 to the date of trial. Each of the latter two periods of
employment included working during the month of December in a child care
facility run by Watermark Communications.

[14]        
Between the periods of employment with Watermark Communications Inc.,
the plaintiff has had other employment. During the summer and fall of 2009, she
was with the Core Climbing and Fitness Centre as a supervisor in the kids’ room
and then in client reception.

[15]        
Following the end of her employment with Watermark in May 2010, she
travelled to Montreal with her current boyfriend, Jules Laporte, and with him on
a holiday to Cuba. Thereafter, she returned to the United Kingdom where she
worked for a period of time as a bartender/server. She then secured employment
in the United Kingdom with a company known as “Work the World”, which places
medical personnel/students in underdeveloped countries. Her employment with
Work the World included a trip to Tanzania and a second trip to Ghana in Africa,
which lasted for approximately one year.

[16]        
Between May 2012 and November 2012, she was in Montreal again with Mr. Laporte
and worked at a call center and then as a nanny.

Issues and Positions of the Parties

[17]        
At the commencement of the trial, the parties filed as an exhibit a
document entitled “Agreement Re: Issue at Trial” which was signed by counsel on
behalf of all the parties. That document says:

The parties have agreed that:

1.         The
defendants are not contesting liability.

2.         The
defendants are prepared to pay any damages assessed against them.

3.         Therefore, this trial is
proceeding on a damages assessment only.

[18]        
In discussions with counsel at the time that document was filed, I
sought clarification of the objective of the document. The parties indicated
that it was not intended to foreclose either party from the right to appeal any
assessment of damages made in these proceedings. It was intended to ensure that
the plaintiff did not need to prove liability in order to recover damages
assessed in these proceedings subject to those rights of appeal. Accordingly,
the parties are left to deal with this assessment in accordance with that
agreement.

[19]        
In respect of the damages assessment, the plaintiff seeks an award of
damages under several heads or categories.

Non-pecuniary/General Damages

[20]        
The plaintiff acknowledges that her physical injuries, except for her
knee complaints, were relatively minor and resolved in a matter of weeks. Her
knee complaints are ongoing but are in the form of some discomfort and not
limiting in any material way.

[21]        
She says, however, that the ongoing psychological consequences are
significant and have materially changed who she is.

[22]        
She says that the authorities support an award of $90,000 in this
category.

[23]        
The defendants’ written submissions are to the effect that the incident
did not cause a compensable psychological or psychiatric injury or alternatively
that any such injury was minor.

[24]        
The defendants also argue that the plaintiff failed to mitigate her
damages by failing to take counselling in a timely fashion, and that there
should be a reduction in any damages to which she might otherwise be entitled as
a result.

[25]        
The defendants say that if there is any entitlement to damages, it
should be in the range of $8,000 to $18,000.

Past Wage Loss

[26]        
The plaintiff acknowledges that there is no claim for past wage loss as
she has been compensated for any loss of income during the approximate two
weeks post-incident that she was off work.

Loss of Earning Capacity

[27]        
The plaintiff says that the ongoing affects of the psychological issues
have diminished her earning capacity, that is, the capital asset that
represents her ability to earn income in the future. She says that an award of
$40,000 is appropriate.

[28]        
The defendants say that no such claim for loss of earning capacity has
been established on the evidence.

Costs of Future Care

[29]        
The plaintiff claims the cost of counselling recommended by the plaintiff’s
expert, Dr. Riar. He recommended 10 to 12 sessions with a psychologist for
cognitive behavioural therapy at a cost of approximately $150 each. There has
also been a recommendation for medication.

[30]        
The plaintiff says that an award of $2,500 is warranted.

[31]        
The defendants take the position that there is no entitlement to any
cost of future care on the basis that the psychological complaints are not
compensable.

[32]        
Alternatively, it says that cost of future care would be the therapy
recommended by Dr. Riar.

Special Damages

[33]        
The plaintiff seeks recovery of the cost of visits for therapy in the
amount of $280. She also says that she lost her helmet and that her ski jacket
was torn in the incident. The value of those items is not corroborated. The
plaintiff says $850 in total would be appropriate.

[34]        
The defendant says that only the reimbursement for the therapy in the
amount of $280 is justified.

Analysis

Mitigation

[35]        
The defendants argue that the plaintiff failed to mitigate her damages
by not engaging in treatment of her psychological issues at an earlier stage.

[36]        
The burden of proving a failure to mitigate lies with the defendants.

[37]        
There are essentially two questions to be addressed. The first is
whether a reasonable person, objectively considering the relative risk and
benefits of treatment, would decide to take those steps. The second is whether
or not the plaintiff did take any of those steps.

[38]        
In this case, the plaintiff indicates that she did not really appreciate
that her psychological issues were affecting her materially until the fall of
2009. This is understandable given that she did continue with her work and
recreational activities.

[39]        
Her personality is such that she had an inclination to simply work
through the issues. This is consistent with her upbringing. Having listened to
the evidence of her mother, it is apparent that the plaintiff was raised in an
environment of not letting emotions or physical ailments impede one’s activities,
work or life.

[40]        
The plaintiff was referred to a psychologist for treatment and went two
times in October and November 2009. She found the treatment modality odd and
unhelpful to her. That is the source of part of her claim for special damages.

[41]        
She did not pursue anything further until the summer of 2010 while she
was in the United Kingdom. There she was referred by her long-time family
physician to the type of cognitive behavioural therapy recommended by Dr. Riar.
She went for four or five sessions. It is not clear, on the evidence before me,
whether she ended that treatment prematurely or whether no further treatment
was recommended. She did indicate that she felt that there had been some
improvement in her symptoms from the treatments.

[42]        
Certainly the defendants have not established that she ended that
treatment contrary to recommendations.

[43]        
Through the time since the incident, the plaintiff has been successful
in maintaining her employment and, indeed, has excelled in that employment. She
has travelled extensively and has been able to engage in positive
relationships. In those circumstances, a reasonable person may well conclude
that enough had been done.

[44]        
Anti-depressants have been recommended recently, but the precise timing
of that is not clear.

[45]        
On the whole, I am not satisfied that the defendants have established in
the circumstances of this case that the plaintiff has failed to mitigate her
losses. In part, my conclusion is based on my observation that part of the
reason that the plaintiff did not do more than what she did is because the
problems she was experiencing were not affecting her sufficiently to bring her
to the conclusion that further or additional treatment was necessary.

General Damages – Non-pecuniary

[46]        
It is obvious from the evidence and the submissions that the principal
foundation for the damages claimed are the psychological issues.

[47]        
The physical injuries resolved within weeks with the exception of the
ongoing complaints of knee discomfort. There was no evidence that the latter
has had any meaningful impact on the plaintiff, and no medical evidence was
introduced to provide a diagnosis or prognosis. The physical injuries received
very little attention in either the plaintiff’s or defendants’ closing
arguments.

[48]        
The B.C. Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34,
sets out considerations relevant to the assessment of non-pecuniary damages. It
stresses that an award must focus on the individual plaintiff’s loss.

[49]        
In respect of her psychological symptoms, the plaintiff says that she is
not inclined to speak about them to others. This is a proposition that I
accept. Indeed, as was noted by Dr. Weiss, the psychiatrist who saw the
plaintiff for the purpose of his independent medical examination at the request
of the defendants but from whom no report was obtained, the plaintiff’s initial
presentation is a normal one. She said that her first impression of the
plaintiff was of an intelligent, articulate, and well-adjusted person. She
noted, however, that in discussing the incident, there was significant
emotional degeneration. To some extent, this tendency of the plaintiff accounts
for the limited observations of other individuals of the plaintiff’s
difficulties.

[50]        
My own observations of the plaintiff during her evidence were of a
person who has been affected by the incident. She frequently struggled to
control her emotions when describing the changes in herself that she has
experienced as a result of the incident. I make these observations fully
cognizant of the care that must be taken in assessing demeanour in a courtroom,
which can be a stressful and strange environment for many.

[51]        
The medical evidence in this trial includes some clinical notes from the
Whistler Health Care Centre and the report and cross-examination of Dr. Riar.
In his report dated October 3, 2012, Dr. Riar notes:

…Personality wise, she has
obsessive-compulsive personality traits, and individuals with these traits tend
to live a very particular lifestyle, having a sense of control on their life.
Any perceived or real loss of control can become a source of stress, creating
anxiety and depression. There is no family history of any psychiatric issues.

[52]        
I find this to be an accurate description in psychiatric terms of what Dr. Weiss
saw and what was seen in the courtroom.

[53]        
In his opinion, Dr. Riar noted as follows:

On the emotional front, she
experienced symptoms of PTSD, which evolved into symptoms of generalized
anxiety disorder by fall of 2009. Those symptoms continued to bother her, and
were still quite bothersome by fall of 2010. From there on there has been
gradual but slow improvement in her symptoms, and even at the time of my
interview with her they were there in a moderate degree. She also had symptoms
of depression, which I would classify as a moderate degree of major depression.
There was also escalation of her drinking for a year or so around fall of 2009,
but she was able to curb her habit and it has not been a problem for the past
couple of year. She received minimal treatment for her psychiatric disorders.

[54]        
Dr. Riar explained that “major depression” is not a reference to
the severity of the depression but is a type of depression. In general terms, it
can affect mood, energy, drive, appetite, motivation, cognitive issues,
attention and concentration.

[55]        
 Dr. Riar recommended that the plaintiff see her doctor and
consider pharmacological and psychotherapeutic interventions. Specifically for
the latter, he recommended 10 to 12 one-hour sessions with a psychologist
conducing cognitive behavioural psychotherapy. He goes on and concludes as
follows:

As far as disability is
concerned, I did not believe that Ms. Sefton was disabled due to
psychiatric reasons, although some of her activities were restricted due to
ongoing symptoms. Her short-term prognosis is that she will continue to have
these symptoms for the next four to six months, but with intervention her
function will be improved. As far as her long-term psychiatric prognosis is
concerned, in the absence of any previous psychiatric history or family
history, her overall prognosis is favourable. There is a probability of her
re-experiencing symptoms of PTSD if she is unfortunate enough to be involved in
another frightening incident in future. This will be the case because of the
fact that her traumatic experience in the incident in question will add in to
any future trauma, which might result in re-experiencing symptoms of PTSD.

[56]        
Despite her situation, the plaintiff has done well in her employment.
She has not needed to disclose her challenges to her employer or her co-workers
in order to account for or explain performance or other problems because there
have not been any.

[57]        
She has travelled, relative to most persons, a great deal including to
and from Europe and Africa, and within Canada and Europe. She has also made a
trip for holiday purposes to Cuba.

[58]        
She has ended one relationship, for reasons not connected to the
incident, and is another healthy supportive relationship.

[59]        
The evidence of her current partner, Jules Laporte, is important. He is
the person who is with her day to day and with whom she shares an emotionally
intimate relationship. The limitation to the value of his evidence is that he
met the plaintiff after the incident.

[60]        
He sees a change in the demeanor of the plaintiff when she talks about
the incident, which is an uncommon situation, and in some other general
situations such as car travel. Otherwise, however, he describes her as normally
“smiling, always looking for new experience, and involved in activity”.

[61]        
The plaintiff’s mother, Valerie Sefton, lives in the United Kingdom.
Since the plaintiff’s move to Canada, she has visited the plaintiff three times
in Canada. One of those visits was for one week over Christmas 2008, shortly
after the incident. The plaintiff has been home to the United Kingdom three or
four times.

[62]        
Valerie Sefton notes that the plaintiff is still active but seems not as
self-confident and not as much of a “go getter”.

[63]        
James Prendergast, the plaintiff’s former boyfriend with whom she moved
from the United Kingdom, was her boyfriend at the time of the incident and
remained so until their relationship ended in or about April 2009. He described
the plaintiff as having some sleepless nights after the incident. In addition, they
shared mutual concerns and/or frustrations in dealing with representatives of
Whistler Blackcomb. He did not, however, describe the plaintiff as having
significant emotional challenges. He confirmed that the breakup of their
relationship was not connected with the incident.

[64]        
The president of Watermark Communications Inc., Sue Eckersley, provided
a letter of reference dated April 2, 2013, in respect of the plaintiff. It
reads:

Watermark has had the pleasure of engaging Amy Sefton’s
services on several contracts over the last few years. We have found her work
and her work ethic exceptional. Amy has been a representative of World Ski and
Snowboard Festival, Whistler’s largest winter event, to several large corporate
clients, all the feedback received on her performance has been extremely
positive.

She is a great team member, always solid and extremely
dependable. She is held in high regard by those with whom she works.

We look forward to engaging her
services in the future.

[65]        
The plaintiff has missed very little time from her work since the
incident.

[66]        
The plaintiff has undergone limited treatment. Although financial issues
were among her considerations, she readily acknowledges a desire to work
through her issues herself and not take medication. She recognizes that this
has not been entirely successful and only recently has decided to pursue
treatment, including prescription medication if so recommended.

[67]        
I do conclude that the plaintiff is a stoic individual who has succeeded
in letting her psychological issues affect her less than may be the case with
others. As has been noted in the authorities, a plaintiff should not be
punished for their stoicism. At the same time, it is impossible to ignore what
the plaintiff has been able to do and what others close to her, particularly Mr. Laporte,
have observed. The high level of function that the plaintiff has been able to
maintain does give context and perspective to the severity of the symptoms.

[68]        
Counsel have referred to various authorities in support of their
positions. Among them are Foubert v. Song, [2012] B.C.J. No. 1603
(S.C.); Burke v. Artz, [2011] B.C.J. No. 1208 (S.C.); and Smith
v. Williams, [2011] B.C.J. No. 2578 (S.C.). Each of those cases
involved more significant physical injuries and overall prognoses that were
less favourable than here.

[69]        
In Foubert, the prognosis for her recovery from symptoms that had
forced her from the workforce and onto disability was poor.

[70]        
In Burke, Rogers J. noted that the plaintiff’s physical and
psychological symptoms had persisted for five and a half years and were
permanent.

[71]        
In Smith, the combined effects of her residual and psychological
injuries were expected to be permanent.

[72]        
Non-pecuniary damage assessments in those cases ranged between $75,000
and $90,000.

[73]        
It is my conclusion that the appropriate award in this category is $35,000.

Loss of Earning Capacity

[74]        
The plaintiff was employed with the Four Seasons Hotel as a ski
concierge at the time of the incident. It is not clear from her evidence what
her long-term career aspirations were at that time. She is a university
graduate, but there is no evidence that she had any plans to pursue an
occupation related to her education at that time. She did make passing
reference during the course of her evidence to the possibility of returning to
school, in order to enhance her undergraduate education and pursue a career in
that field, but she described it as only a possibility.

[75]        
The plaintiff missed a relatively short time from her employment as a
result of the incident. There is no evidence that the incident-related issues
have influenced her marketability or job selection to date. Indeed, she has
worked in a fairly diverse range of jobs since the incident and has done so
successfully.

[76]        
The plaintiff must prove a real and substantial possibility of a future
event leading to an income loss. The Court of Appeal in Perren v. Lalari,
[2010] B.C.J. No. 455 at paras. 30 and 32 says as follows:

[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].

…

[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.

[77]        
Although the plaintiff perceives that she has been less than 100 percent
in her employment, she has obviously been very good at it. The letter of
reference from her present employer, Watermark, is exceptionally positive.
There is absolutely no evidence that her performance, as perceived by any of
her employers, has been substandard in any way. By all accounts, she is an
individual with many positive attributes and she is highly employable.

[78]        
It may be that the lasting effects of the incident have blunted those
attributes to some extent, but the evidence here does not satisfy me that there
is any loss of earning capacity.

[79]        
There is no vocational assessment or other expert evidence to indicate a
negative impact on her employability. Indeed, the opinion of Dr. Riar, the
only expert evidence of any kind, is that she was not and is not disabled. Further,
his opinion is that the effects of the incident will resolve within four to six
months.

[80]        
I am simply not satisfied that the plaintiff has proven a loss of
earning capacity.

Cost of Future Care

[81]        
Dr. Riar recommended 10 to 12 sessions at $150 each. He also
recommended pharmacological treatment. In my view, an award of $2,500 is
appropriate.

Special Damages

[82]        
I accept that the plaintiff lost her helmet and that her jacket was torn
in the incident. She has incurred $280 in treatment costs which have not been
reimbursed. There is minimal evidence regarding the value of the helmet or the
jacket. Therefore, $600 is awarded under this head of damage.

Conclusion

[83]        
Following is a summary of damages awarded to the plaintiff:

[84]        
The parties are at liberty to bring the matter before me to deal with
costs. In the absence of any submissions, the plaintiff should have her costs
at Scale B.

“D.A. Betton J.”

The
Honourable Mr. Justice Betton