IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Fabretti v. Gill, |
| 2014 BCSC 899 |
Date: 20140522
Docket: M112084
Registry:
Vancouver
Between:
Mitchell Fabretti
Plaintiff
And
Satvir Singh Gill,
Aman Jit Singh, Greater Vancouver Transportation Authority
doing business as Translink and her Majesty the Queen in Right of the Province
of British Columbia by her representative the Ministry of Transportation and
Highways
Defendants
And
Insurance
Corporation of British Columbia
Third
Party
Before:
The Honourable Madam Justice Kloegman
Reasons for Judgment
Counsel for the Plaintiff: | P. V. Gardikiotis |
Counsel for the Defendants and Third Party: | D. C. Fong |
Place and Date of Trial: | Vancouver, B.C. March 3 – 7, 10 – 12, |
Place and Date of Judgment: | Vancouver, B.C. May 22, 2014 |
[1]
On January 12, 2005 at approximately 10:00 p.m., a tragic accident
occurred on the Pattullo Bridge in New Westminster (the Accident). The
plaintiff was only 12 years old at the time. He was asleep in the rear right
passenger seat beside his 10-year old sister, Amanda, who was also asleep. His
father, Terry Fabretti, was driving, and his mother, Jocelyn Fabretti, was in
the front passenger seat of their 2001 Mazda Tribute.
[2]
Suddenly, the defendants 1995 Mustang which was traveling in the
opposite direction veered into the Fabrettis lane of travel. The Mustang hit
the Mazda head on, and there was nothing Mr. Fabretti could do to avoid it.
The Mustangs driver and passenger died from injuries sustained in the Accident.
Every member of the Fabretti family was injured. The plaintiffs claim for
compensation for personal injury from the Accident is the last one to be
litigated.
[3]
The third party, ICBC, has taken the position that the defendants
breached their insurance policy with ICBC such that ICBC is participating in
the lawsuit as a third party. ICBC takes no position on liability but contests
the quantum of the claim for damages of the plaintiff for injuries suffered
from the Accident.
[4]
The plaintiffs claim is somewhat complex, as it is based in large part
on the psychological and emotional stress encountered not only from his own
involvement in the Accident, but from the loss of parental support and guidance
he experienced as a result of the serious physical injuries to the other
members of his family.
[5]
In short, the plaintiff claims that he sustained the following injuries
directly as a result of the Accident:
1. soft
tissue injuries to his neck, back, and shoulders that have developed into
chronic pain;
2. temporomandibular
joint dysfunction (TMJD);
3. mild
traumatic brain injury (MTBI);
4. headaches;
5. psychological
injuries; and
6. substance
abuse and addiction.
[6]
ICBC concedes that the evidence proves soft tissue injuries to the
plaintiffs neck, shoulders, upper back and temporomandibular joint. ICBC
submits that if the plaintiff suffered a MTBI, it was well resolved by the time
the plaintiff saw the neuro-psychiatrist, Dr. Joschko, in 2008 and had no
lingering effects. ICBC denies that the plaintiff has chronic pain, lower back
pain or ongoing headaches as a result of the Accident. ICBC submits that the
plaintiffs ongoing difficulties stem from his drug addiction and overuse of
marihuana, which ICBC says is not causally connected to the Accident, but
rather the plaintiffs pre-existing condition together with other
socio-psychological factors which would have led the plaintiff down that path
in any event.
[7]
The plaintiff claims that his drug addiction came about from an unhappy
psychological state and chronic pain derived from the Accident. Although he
withdrew from a practice of consuming hard drugs in grade 12, his consumption
of marihuana to ameliorate his chronic pain has steadily risen to the point
where his ability to function and earn income has been impaired. He seeks
compensation for pain and suffering, past income loss, loss of capacity to earn
income in the future, cost of future care (including the cost of drug
rehabilitation) and special expenses.
I.
LIABILITY
[8]
I have no difficulty finding on the evidence that the Accident was
caused by the negligent driving of the Mustang and that the defendants are
fully liable for any damages arising from it.
[9]
ICBC does not contest the fault of the defendants, but it pleads the
contributory negligence of the plaintiff to his injuries by failing to properly
wear a seatbelt.
[10]
The onus is on ICBC to firstly show that it is more likely than not that
the plaintiff was not wearing a lap and shoulder seatbelt at the time of the
collision; and secondly, that a properly worn seatbelt would have prevented
some or all of the plaintiffs injuries.
[11]
The evidence of Mr. and Mrs. Fabretti is that the plaintiff was
wearing his seatbelt. They had a standard practice to always make sure that the
children wore their seatbelts. Mrs. Fabretti witnessed the plaintiff
remove his seatbelt after the Accident. She testified that after she managed to
get out of the car, she went around to open the plaintiffs door because he was
not responding when she called out to him. He woke up, took off his seatbelt,
and dove forward screaming and crying. She also recalled bruising appearing
later on his chest. When the bruises started to turn green, the family
teasingly called the plaintiff the Hulk.
[12]
Mr. Fabretti testified that he had no specific recollection of the
children wearing their seatbelt but confirmed that the car would not have moved
without he and his wife checking to see that the kids were wearing one.
[13]
Constable Popke was the first police officer on the scene. When she
arrived, Amanda was in the rear driver side with the seatbelt on. The plaintiff
was not seated in the back, but rather in the centre foot well area, screaming
hysterically. His seatbelt was either not on, or only partially on.
[14]
The Fabrettis took photographs of their injuries. Amandas photograph
shows severe bruising in the area of contact with her seatbelt. There are no
photographs of the plaintiffs chest or abdomen. However, the clinical records
of Dr. Low, family physician, indicate that the plaintiffs chest was
tender bilaterally secondary to seatbelt.
[15]
The ambulance crew report indicates that they were informed that the
plaintiff had a lap belt on and was lying down on his side before impact.
[16]
The only compelling evidence that supports the defendants contention
that the plaintiff was not wearing a seatbelt was the opinion of David Liddle,
accident reconstructionist. He concluded that the forward motion of the
plaintiff was not stopped until the plaintiff struck the right front seat back,
deforming it forward. Mr. Liddle opined that this evidence, in conjunction
with the absence of loading marks on the plaintiffs seatbelt restraints,
revealed that he was not wearing the available lap and shoulder seatbelt.
[17]
The plaintiffs expert accident reconstructionist, Dr. Toor,
testified that Mr. Liddles report was misleading and technically
incomplete or invalid because:
1. Mr. Liddle
did not consider the possibility or likelihood of the plaintiff escaping the
torso belt due to seating posture, and
2. Although
the presence of seatbelt loading is a good indicator that a seatbelt was used,
the lack of loading marks is not an indicator of a seatbelt not being used.
[18]
In regard to the second element of ICBCs onus, Mr. Liddle opined
that had the plaintiff been wearing the available seatbelt restraint, his
forward motion would have been restricted such that his head would not have
struck the front seat back. Proper seatbelt use likely would not have prevented
his lower legs from striking the seatback, although it likely would have
reduced the force applied to the legs. It would also be expected that the
plaintiff would have sustained soft tissue injuries as a result of the seatbelt
loading, had he been wearing the seatbelt.
[19]
Dr. Toor completely rebutted this opinion of Mr. Liddle. He
testified that the proper use and benefits of a seatbelt can only be
ascertained by technically valid kinematic analysis comparing restrained and
unrestrained occupant motion. The field data obtained by Mr. Liddle only
allowed a partial reconstruction of the plaintiffs movement on impact.
[20]
As I understood Dr. Toors evidence, the last point is particularly
important. If the plaintiff had had his seatbelt buckled and had been leaning
to the left, as his parents testified, the torso portion of the seatbelt would
likely have had no effect in reducing or limiting his motion. His upper body
would have been displaced forward while rotating about the lap belt and hip
region. The forward motion would have likely continued until contact occurred
between him and the vehicle interior. Lower leg contact, upper body contact and
head contact with the seat back in front of him would be expected.
[21]
Dr. Toors credentials, report and testimony were impressive and I give
his opinion more weight than Mr. Liddles which admittedly contained no kinematics
analysis, nor took into account the overwhelming evidence that the plaintiff
was asleep and leaning over to the left toward his sister.
[22]
I find that ICBC has not proved that the plaintiff was not wearing a
seatbelt at the time of the Accident or that a properly worn seatbelt would
have prevented any of his injuries. Therefore, I find no contributory
negligence on the part of the plaintiff or his parents.
II.
THE PLAINTIFFS INJURIES AND TREATMENT
[23]
The plaintiff had very little recollection of the Accident or its
aftermath. All he remembered was being scared and hurt, physically and
emotionally. He remembered waking up in the ambulance with his dad in pain on a
stretcher and then arriving at the hospital. Right after the Accident he had
pain in his neck, jaw and headaches. The plaintiff could not remember how long
he was in the hospital, or how long he was off school. He did not talk to other
students or his teachers about the Accident but kept it to himself, bottled up.
[24]
The plaintiff testified that his back pain started about one or two
years after the Accident. His symptoms fluctuate. He has pain daily that
progresses throughout the day. He has tried Advil for headaches and Amitryptolene
for depression. He couldnt tolerate the side effects of the Amitryptolene. He
found marihuana consumption was the best way to numb the pain.
[25]
The plaintiff testified that he followed through with Dr. Lows
recommendation for physiotherapy and chiropractors. He still does exercises for
his jaw, even though he doesnt have any further jaw pain. He still does arm
and neck stretches daily.
[26]
Under cross-examination, the plaintiff testified that the symptoms from
the Accident make him want to take marihuana. At first Tylenol caused his
headaches to subside but after a while it stopped having a good effect. Even
with the marihuana he never has a day headache free. The plaintiff admitted
that his jaw resolved with treatment. The oral dental specialist,
Dr. Blasberg, helped him get better. The physiotherapist helped him with
his neck. The issues with his jaw were substantially resolved by April 2006.
[27]
The plaintiffs mother said when she first saw him at the hospital he
was clingy and emotional. He had a big bruise on his left cheek and underneath
his eye. The plaintiff expressed worry about her, his father and sister. He
remained in hospital for three days. Her sisters and parents took turns looking
after the family for about a month. She said the plaintiff was sad, lonely and
scared and embarrassed to be with his aunties. She was concerned about the
plaintiffs consciousness and ongoing headaches. He suffered from nightmares
and crying. He slept in their room on a cot for the whole of grade 7 and 8.
[28]
Mrs. Fabretti admitted that Dr. Low had suggested counselling for
the plaintiff to help with his emotional problems, but she and her husband just
couldnt get him there because they were all hurt. They family was in survival
mode and couldnt manage anything extra.
[29]
Mrs. Fabretti was convinced that the plaintiff had a brain injury
because he had a severe change in behaviour. In the summer of 2008 he said he
was depressed, felt very alone and isolated. Dr. Low recommended
antidepressants but they made the plaintiff sick. Dr. Low recommended
keeping the plaintiff active, working out, playing hockey and giving him some
solitude.
[30]
Mrs. Fabretti said that from the time of the Accident the plaintiff was
having difficulty with pain. Initially headaches were the prominent issue and
then neck, shoulder and back pain. The headaches continued through to grade 10
consistently. The neck pain has been constant and never abated. He complained
of low back pain all the time throughout high school.
[31]
Mr. Fabrettis job in sales required him to travel close to 50% of the
time. His testimony corroborated that of Mrs. Fabretti, but didnt add
much. Other lay witnesses confirmed that the plaintiff complained of pain from
time to time when playing hockey or doing other things.
[32]
The family physician, Dr. Low, did not testify. ICBC submitted that
I should draw an adverse inference from his failure to do so. The plaintiff
submitted that Dr. Lows testimony was not required because ICBC had
available to them his entire clinical records, plus the opportunity to speak to
him directly and call him as a witness if it so desired.
[33]
I agree with counsel for the plaintiff. In this day and age of broad
discovery of documents and free exchange of information, the possibility of an
adverse opinion should have been known to ICBC, who could have subpoenaed
Dr. Low (Buksh v. Miles, 2008 BCCA 318 at paras. 33-35). While the
onus is always on the plaintiff to prove his case, he does not have to call
every conceivable witness in order to avoid adverse inferences being drawn. I
accept that the viva voce evidence of Dr. Low which would have
added little to what was already in evidence by way of his clinical records.
[34]
The ambulance attendants recorded a reduced Glasgow Coma Scale of 14 out
of 15, contusion to the left side of the plaintiffs head and decreasing
consciousness. He was drowsy en route.
[35]
The plaintiff spent two days in hospital. The nurses notes indicate
that on admission he had gastrointestinal pain with slight distention, and
abrasions on his left temporal, left shin, right lower leg and right knee. He
denied nausea and had no pain on palpation of his abdomen.
[36]
The day after the Accident, the plaintiff complained of headache and was
administered Tylenol. In the evening he complained of tiredness and nausea. The
following day, January 14, he was discharged into his aunts care while his
mother, father and sister remained in hospital.
[37]
The clinical records of Dr. Low indicate that he attended at the
Fabretti home nine days after the Accident and diagnosed the following injuries
of the plaintiff:
a. head
injury and loss of consciousness;
b. abrasions
to the left face and head;
c. contusion
to the chest;
d. abrasions,
lacerations and bruising to both shins; and
e. possible
psychological injury.
[38]
Dr. Low again saw the plaintiff on February 1, 2005. His notes indicate
that the plaintiff complained of ongoing headaches and jaw pain when chewing. The
plaintiffs range of motion was full. Dr. Low diagnosed post concussive
symptoms.
[39]
The clinical records illustrate visits by the plaintiff to a
physiotherapist at Surrey Sports and Rehab Centre starting August 4, 2005. These
records report complaints by the plaintiff of constant headaches (two to three
times per day) and occasional cracking and locking of his jaw while talking or
chewing. His headaches were aggravated by light, located behind his eyes, and
occasionally accompanied by dizziness.
[40]
The plaintiffs dentist, Dr. Lee, referred him to Dr. Blasberg,
certified specialist in oral medicine. On August 19, 2005, Dr. Blasberg
diagnosed an internal derangement in the plaintiffs right temporomandibular
joint, associated arthralgia and myofascial pain. He prescribed exercises,
physiotherapy and an oral appliance.
[41]
In October 2005, the plaintiff was still complaining to Dr. Low
about headaches and neck pain.
[42]
The plaintiff started chiropractic treatment in May 2006 with
Dr. Douwes. He records complaints by the plaintiff of tense neck, hand
tingling, difficulty sleeping, sitting in a car and at school, and headaches. The
plaintiffs complaints of sore neck and headaches continue to be recorded by
Dr. Douwes to the end of July 2007 when the plaintiff moved to Langley and
attended a different chiropractor, Dr. Mikkelson, until April 2009.
[43]
The plaintiff tendered into evidence the expert report of Dr. Blasberg
which was unchallenged. Dr. Blasberg wrote that by January 2006 the
plaintiff was feeling better, although his jaw continued to make noises and lock.
His ability to eat had improved. By April 2006, his jaw no longer gave pain and
the plaintiff could chew all food. In February 2007 the plaintiffs jaw felt
well, although he still experienced occasional jaw pain that last less than a
day.
[44]
In May 2008, the plaintiff reported to Dr. Blasberg that he had
been having headaches during the past couple of months, primarily in the
forehead, lasting about an hour. He did not experience jaw pain. In March 2009
he reported constant headaches in his forehead and more neck pain, but his
mouth opening was pain free. No further treatment was suggested by Dr. Blasberg.
A. Chronic Pain
[45]
ICBC submits that contrary to the evidence of Mr. and Mrs. Fabretti
and the plaintiff, the clinical records do not support the plaintiffs
complaints of chronic headaches, neck and lower back pain since the Accident. ICBC
points to the fact that the plaintiff returned to his pre-accident sport of ice
hockey in the fall of 2005, and roller hockey in the spring of 2006. He
continued hockey right through high school, and after he graduated he worked in
physically demanding jobs.
[46]
There is sufficient evidence in the records I have reviewed above to
suggest that after the Accident the plaintiff suffered from and continues to
suffer from ongoing neck, back and head pain, even after his jaw had recovered.
[47]
Both Dr. Dhawan and Dr. Lu dismissed the proposition that
because the plaintiff played hockey, he did not suffer from chronic pain. This
was a measure of the plaintiffs function, and did not shed light on how much
pain he received from playing. The plaintiffs coaches and his friends all
testified that the plaintiff played through his pain, at times succumbing to
it, at times overcoming it. Furthermore, Dr. Dhawan, physiatrist, opined
in August 2011 that based on the medical records, the history provided to him
from the plaintiff, and his clinical examination, the plaintiff had settled
into chronic pain with symptoms of neck, head and back pain. I accept his
opinion, and I find that the plaintiff does suffer from chronic pain to his
neck, head and back.
[48]
From a review of Dr. Lus report I find there is a strong psychological
component to complaints of chronic pain. Also in this case, although an
assessment of the plaintiffs chronic pain is further complicated by MTBI and
drug addiction, the chronic pain has a motivational affective component and is
an independent risk factor for the development of any addiction.
B. MTBI
[49]
There is also a dispute between the parties whether the plaintiff
suffered any MTBI or concussion from the hit to his head during the Accident.
[50]
According to Drs. Dhawan, Lu, Joschko and LeBlanc, the plaintiff
met the established criteria for MTBI. The only medical expert to conclude that
the plaintiff did not likely suffer from MTBI was Dr. Wong. He refused to
accept the established criteria which included the America Congress of
Rehabilitation Medicine definition. He relied solely on his interview with the
plaintiffs father from which he understood that right after impact, the plaintiff
got out of his seat, fell over in front between his parents, then became
unconscious, regained consciousness and started swearing.
[51]
Dr. Wongs assumption, formed from his interview with Mr. Fabretti,
is at odds with the rest of the evidence. Both parents testified at trial that
the plaintiff was unresponsive right after impact. Mr. Fabretti called out
to the plaintiff to say hi dad to show him he was alright, but there was no
response. The Fabrettis observation of the plaintiffs state of consciousness
was consistent with his diminished Glasgow Coma Scale score and the ambulance
crews observation of decreased consciousness. All other recorded statements of
the Fabrettis are consistent with their testimony; only the alleged statement
of Mr. Fabretti to Dr. Wong is at odds with this other testimony.
[52]
In my view, Dr. Wongs comments at trial revealed that his opinion
was really aimed at the likely effect of a mild traumatic injury to the
plaintiffs brain, not whether he experienced one in the first place. I find
that the plaintiff did suffer a MTBI from the Accident.
C. Drug Addiction
[53]
The plaintiff testified that he tried marihuana for the first time in
the summer after the Accident. He did not like it but later he tried it again
and noticed that it helped with his pain and headaches and gave him an escape
from the chaos at home.
[54]
In early 2006 the plaintiff was caught drinking alcohol to such excess
he became extremely intoxicated and ill.
[55]
The plaintiffs use of marihuana continued to escalate. Then in high
school he started using cocaine and MDMA (ecstasy). He used these drugs during
school time and evenings and weekends, but managed to hide it from his parents.
The first time his parents discovered he was using marihuana was when his
mother smelled it during a sleepover at his house.
[56]
The plaintiffs friend, Matt Garb, testified that they started using
drugs together in the summer after grade 10. Their drug use peaked in the
summer of grade 11. The plaintiff testified that he had a traumatic experience
with a bad batch of drugs which made him extremely sick. He stopped using
cocaine shortly thereafter but his consumption of marihuana correspondingly
increased to eight or nine grams per day. As his friends started to graduate
and find jobs, their consumption decreased but the plaintiff testified that he
continued to use significant amounts to provide him relief from his headaches
and pain.
[57]
In 2011 Dr. Dhawan recommended that the plaintiff should apply for
a medicinal marihuana license. Dr. Low arranged a license for him in the
latter part of 2011.
[58]
It was not until the plaintiff was interview by Dr. Lu that his use
of drugs other than marihuana in the past came to light. Dr. Lus opinion
is that the plaintiff fully met the criteria for drug and stimulant addiction.
[59]
The testimony of the plaintiff and the expert opinion evidence of
Dr. Lu, addiction psychiatrist, establishes that the plaintiff currently
suffers from a form of drug addiction.
III.
CAUSATION
A. Chronic Neck and Back
Pain
[60]
ICBC does not dispute Dr. Blasbergs opinion that the plaintiffs
jaw pain and neck pain derived therefrom was caused by the Accident. ICBC
denies that any other musculoskeletal pain of which the plaintiff complains
past 2008, if genuine, is causally connected to the Accident.
[61]
It is trite law that as a trial judge I must take a robust and pragmatic
approach to determining if the plaintiff has established that the defendants
negligence caused his loss. Scientific proof of causation is not required (Clements
v. Clements, 2012 SCC 32 at para. 9).
[62]
Dr. Dhawan, in both his medical legal reports and in his testimony,
opined that the plaintiff suffered soft tissue injuries to his cervical and
lumbar spine and his temporomandibular joint from the Accident. It appears that
his opinion is primarily based on the fact that the plaintiff was a healthy 12
year old before the Accident with no complaints in any of these areas until
after the Accident. Dr. Dhawan conceded that there was a poor temporal
connection with the plaintiffs lower back pain, which ordinarily would have
manifested itself three to four weeks after the Accident, not two years later. However,
Dr. Dhawan explained that chronic pain in other areas can cause a
neurotransmitter imbalance so that the normal relief received from dorfins,
serotonin, etcetera is not available and ordinary aches and pains become
chronic. Dr. Lu also opined that chronic pain has a negative impact to all
parts of the body, including cognitive function and the overall sense of wellbeing.
[63]
ICBC led no evidence disputing the diagnosis or cause of the plaintiffs
chronic pain symptoms. It called a previous employer, Mr. Azula, to
testify that the plaintiff worked successfully as a delivery boy for his
grocery business which involved loading and unloading dollies with boxes
weighing 10 to 65 pounds. Once again, this is an indicator of the extent and
impact of the plaintiffs chronic pain on his function, but did not negate the
evidence of the existence or cause of the chronic pain. I find that the
Accident was the cause of the plaintiffs chronic pain.
B. MTBI
[64]
I have found the plaintiff suffered a MTBI from the Accident. In my
view, the issue here is not whether the Accident caused the plaintiff to suffer
an MTBI, but whether it was severe enough to cause any lasting sequelae.
C. Headaches
[65]
ICBC submits that like the plaintiffs allegation of chronic pain to his
neck and back, there is insufficient evidence to support his complaint of
continuing headaches caused by the Accident.
[66]
My review of the clinical records and evidence indicate complaints of
headaches beginning at the hospital the day after the Accident and recorded by
Dr. Low in February 2005, by the physiotherapist in August 2005, the
chiropractors in May 2006 through April 2009 and Dr. Low in July 2010 and
2011. Dr. Dhawan and Dr. Lus reports reviewed the entire clinical
records and conclude that the plaintiffs headaches are directly attributable
to the Accident.
[67]
Once again, Dr. Lu sees the source of the headaches as being
complicated by musculoskeletal chronic neck and back pain, MTBI and addiction. Nonetheless,
as the plaintiffs chronic pain, MTBI and addiction were all caused by the
Accident, it follows that the headaches are causally connected to the Accident.
D. Psychological Injuries
[68]
As early as January 2005 there is a reference by Dr. Low in his
clinical records that after the Accident the plaintiff was suffering from
nightmares and crying spells, and needed counselling. The evidence of the
impact of the Accident on the family structure was fairly extensive. They had
all suffered serious injuries. Mr. Fabretti slept on the main floor of the
home for a couple of months while he recovered from arm surgery and back pain. Amanda
Fabretti could not walk because of a fractured pelvis. Mrs. Fabretti had diffuse
injuries and migraines. Later when Mr. Fabretti and Amanda moved upstairs,
they all slept in the parents bedroom.
[69]
Amanda Fabretti was home for two months and Mr. Fabretti was off
work for three months. Mrs. Fabretti was unable to work. The plaintiff
only missed eight days of school but he felt guilty and helpless because the
other family members were self-absorbed with their own predicaments.
[70]
The Fabrettis painted a picture of a once happy, fun loving, supportive
family whose life was turned upside down by the Accident. Their evidence in
this regard was not seriously impacted by cross-examination. The plaintiff lost
the emotional support of his family, and was subjected to the observation of
their suffering, without the skills and maturity to cope with the situation. I
find that the plaintiff suffered some psychological injury from the fallout of
this Accident.
E. Drug Addiction
[71]
According to Dr. Lu, the plaintiffs psychological injuries would play
a role in the plaintiffs perception of his pain and his need for drugs.
[72]
In my view, the most difficult issue raised by the circumstances of this
case is ascertaining the extent to which the plaintiffs drug addiction was
caused by the Accident. Both sides acknowledge that the plaintiffs drug
consumption affects an assessment of the actual damages or loss occasioned to
the plaintiff by his other injuries and his prognosis for the future. If the
addiction is not causally connected to the Accident, then ICBC cannot be liable
for any injury or loss attributable to the addiction. If the addiction is
causally connected to the Accident, then the plaintiffs recovery from it
should have a positive impact on his future prognosis.
[73]
In my view, the only witness with the appropriate credentials to give a
medical opinion on the relationship between the Accident and the plaintiffs
drug addiction is Dr. Lu. He was an impressive witness: learned,
nonpartisan, objective and forceful in his opinion. ICBC tendered no other
expert evidence to rebut Dr. Lus opinion, and I accept it.
[74]
Dr. Lu opined that it is more likely than not that the plaintiffs
MTBI and chronic pain arising from the 2005 Accident played a direct and
contributing role in the onset and maintenance of his addiction. It is more
likely than not that the plaintiffs addiction contributed to his educational,
emotional and cognitive impairments. Research suggests that early onset
addiction, especially the prolonged use of amphetamine-like stimulants such as
MDMA, can have a deleterious effect on brain development over the long term.
[75]
Dr. Lu explained that the plaintiffs prior learning disability was a
risk factor associated with early onset addiction, especially in boys. In
addition, MTBI and chronic pain are well recognized risk factors for the
development of addiction. Disruption of family routine and structure is thought
to be a significant social factor for addiction. The 2005 Accident was a
seminal event in the plaintiffs childhood. His familys injuries likely played
a role in his addiction.
[76]
The opinion of Dr. Lu was supported by Dr. Joschko who stated
in his report of October 2, 2013 that the problems noted by Dr. Lu with
respect to marihuana self-medication and drug addiction are likely, at least in
part, a consequence of the plaintiffs poor psychological adjustment caused by
the effects of the Accident. It is axiomatic that chronic pain, efforts at
self-medication for reasons such as physical pain or emotional stress, and drug
addiction are likely to either cause or exasperate problems in psychological
adjustment and learning, and thereby alter an individuals life trajectory.
[77]
Dr. Lu stated that it was impossible to know whether or not the
plaintiff would have developed an addiction in the absence of the 2005 Accident.
Once again, the plaintiff does not have to prove to a scientific certainty that
he would not have developed a drug addiction but for the Accident, only that it
is more likely than not it was caused by the Accident. On the totality of the
evidence, I find on a balance of probabilities that the plaintiffs drug
addiction was caused by the Accident.
[78]
ICBC argues that a causal connection between the Accident and the
plaintiffs addiction can be shown only if the plaintiffs alleged reason for
the drug use as a coping mechanism or reaction to the chaos that followed the Accident
is found to be true. ICBC submits that this allegation can only hold true if
the plaintiff and his family were found to be credible. I do find the evidence
of the Fabrettis to be credible and consistent with the clinical records, so
this submission fails.
[79]
ICBC points to evidence that the plaintiff might have started drugs
before the Accident, and in response to peer pressure to which he would have
been exposed in any event.
[80]
This proposition of ICBC was put to Dr. Lu during cross-examination.
He explained that although prior use may increase risk, many people experiment
with recreational drug use but only a small percentage go on to develop an
addiction. By age 15, 60% of people living on the west coast in Canada have
tried marihuana. More than 80% of people experiment with drugs, but less than
10% become regular users. Dr. Lu had no doubt that the Accident caused the
plaintiffs addiction.
[81]
Accordingly, I find that the plaintiffs drug addiction was more likely
than not caused by the Accident.
IV.
PROGNOSIS
[82]
I have found in favour of the plaintiff that the Accident caused injury
to his temporomandibular joint, a MTBI, chronic pain to his neck and back,
headaches and drug addiction.
[83]
However, I do not find that the extent and duration of these injuries
are as debilitating as the plaintiff submitted.
[84]
Dr. Blasberg was satisfied by the plaintiffs last visit in March 2009
that no further treatment for his TMJD was required.
[85]
Dr. Dhawan, physiatrist, opined in 2011 that the plaintiffs examination
was completely normal. There was no evidence to suggest any bony, discogenic or
neurological injury. He had settled into chronic pain with symptoms of neck,
head and back pain lasting more than six years and was likely to experience
longer term pain. However, Dr. Dhawan opined that the plaintiff should be able
to function physically to full capacity and should be able to engage in his
chosen profession of massage therapist, which required hands-on learning. Again
in June 2013, Dr. Dhawan confirmed the plaintiffs chronic pain in head,
neck and back region but stated that although he experiences discomfort on a
daily basis, he is not physically disabled by it. Dr. Dhawan also opined that
the plaintiff should avoid any profession involving stress, repetitive bending,
heavy lifting or prolonged overhead work.
[86]
In his rebuttal report, Dr. Dhawan described the detrimental
effects of managing chronic pain by heavy drug use. He recommended that the
plaintiff improve his lifestyle and lead a healthier one through activity,
proper nutrition and adequate rest.
[87]
An assessment of the severity of the plaintiffs MTBI is complicated by
the plaintiffs chronic pain, drug addiction and pre-existing learning
disability.
[88]
Dr. Joschko opined that he does not believe that the plaintiff suffered
from any lasting effects of his MTBI.
[89]
Dr. LeBlanc opined that the plaintiff suffered no cognitive effect from
his injuries in the Accident.
[90]
Although Dr. Lu was of the view that it was equally possible that
the plaintiffs ongoing symptoms were from MTBI, chronic pain or drug
addiction, it was the high risk of relapse that made the prognosis for the
plaintiff a guarded one.
[91]
On a balance of probabilities, I find that the plaintiff has no
permanent physical disability arising from his injuries. He has no lasting
cognitive effects from the Accident. The impact of his chronic pain on his
function does not amount to an impairment and should not disable him from
employment, although his capacity to perform all forms of employment to the
same degree as before the Accident may have been realistically affected. At
present his marihuana consumption is a negative factor in his full functional
recovery, and must be brought under control. From the evidence, the success of
the plaintiffs future is highly dependent on eradicating his excessive drug
use. The plaintiff had the wherewithal to stop his cocaine and MDMI use in high
school without assistance. I believe the plaintiff, with the help of his family
and professional addiction treatment, has the fortitude to overcome his
dependency on marihuana. Nonetheless, I am aware that like any other addict, he
will always be at risk of relapse.
V.
DAMAGES
A. Non-pecuniary Damages
[92]
The plaintiff submits that appropriate compensation for his
non-pecuniary damages is in the range $110,000 to $180,000. ICBC submits that
the appropriate range is more like $25,000 to $35,000. Of course ICBCs range
is based on their position, which was not supported by the evidence, that the only
injury the plaintiff has proved to have been caused by the Accident is TMJD and
mild soft tissue injuries that resolved shortly after the Accident.
[93]
Every case must be decided on its own factors of age, severity and
duration of injury, disability and pain, emotional suffering and loss of
enjoyment of life (Stapley v. Hejslet, 2006 BCCA 34 at para. 46). The
plaintiff here was only 12 when the Accident occurred. He suffered jaw pain,
discomfort and treatment for two years. He suffered and continues to suffer
from headaches and sore neck and back. He has suffered emotionally from the
effect on his family unit. Most of all he suffers and will continue to suffer
the pain and emotional stress of the life of a recovering drug addict.
[94]
The plaintiff submits that before the Accident he was an energetic, fit,
highly active preteen. He enjoyed hockey, mountain biking, camping, walking and
other outdoor recreation. This was all supported by the evidence, particularly
the evidence regarding the plaintiffs passion and skill for hockey. However,
the plaintiff did not lose either the opportunity or ability to play hockey
except for a short period following the Accident. He returned to ice hockey in
the fall of 2005 and roller hockey in the spring 2006. In fact, the Fabrettis
moved to Langley so that the plaintiff could attend the hockey academy during
grades 9 and 10.
[95]
The plaintiff and other witnesses testified at length about the agility,
speed and endurance required to play hockey well. The plaintiff did play it
well, competing at international tournaments and earning prime positions on his
team through competition. Nonetheless, as I stated earlier, the evidence
established that he often played in pain, and he should be compensated for that.
[96]
The expert evidence suggests that although the plaintiffs pain is not
disabling, it will likely continue. In addition, the plaintiff will undergo the
unpleasantness of treatment for drug rehabilitation which will likely take 6
months to one year. The upside of the drug treatment is that it should improve
his quality of life, ability to create long term relationships and ameliorate
the emotional and physical toll of addiction. Hopefully, it will also assist
the plaintiff in controlling his chronic pain.
[97]
From the cases cited to me, I found the decisions of Houston v. Kine,
2010 BCSC 1289 and Parfitt v. Mayes et al, 2006 BCSC 125 to be the most
helpful. In Parfitt, the court accepted that the plaintiff did not have
a permanent disability. In Houston, the court found that the prognosis was
favourable with appropriate treatment. I find the impact of the plaintiffs
injuries to be slightly less than both the plaintiffs in Parfitt and Houston.
Accordingly I award the plaintiff the sum of $100,000 for pain and suffering.
B. Past Income Loss
[98]
An assessment under this head of damage is an assessment of a real and
substantial possibility to earn income that was lost to the plaintiff because
of the Accident (Lines v. W & D Logging Co. Ltd., 2009 BCCA 106; Rowe
v. Bobell Express Ltd., 2005 BCCA 141; Athey v. Leonati, [1996]
3 S.C.R. 458).
[99]
It is a more difficult task to assess income loss when a plaintiff is
injured before he or she has a proven employment history. In the plaintiffs
case, it was always unlikely that he would pursue any post-secondary education
or any career that involved an academic component. The plaintiff was born with
a mild form of spinal bifida. He was identified long before the Accident as
having a severe learning disability that prevented him from pursuing the
regular school curriculum. He received learning assistance at school, he had an
independent educational plan, he received speech and language therapy and his
mother, a former teacher, tutored him. By grade 6, before the Accident, he had
been placed in a segregated classroom for children with learning disabilities. Nonetheless,
with assistance, the plaintiff was able to graduate high school.
[100] The
plaintiffs abilities lie within the physical arena. He is strong, well-coordinated
and a talented athlete. He has shown commitment to his sports and the ability
to apply effort when he is so inspired. The plaintiff has held a number of jobs
since graduating. He worked at a produce store, Little Green Apple, from June
2010 to September 2010. He described the work as physically tough but he was
able to do the job. He quit working there in the fall of 2010 in order to find
a job closer to home. In September 2010 he started with Walmart customer
service as an automotive technician, changing tires and oil filters. It was
close to home and the work was not as physically demanding as at Little Green
Apple. He left there in July 2011 over a dispute about vacation time.
[101] The
plaintiff started his next job in September 2011 as a painter and restoration
worker with Straight Edge Contracting. He left there in April 2012 because of
lack of work.
[102] There is a
gap in the plaintiffs employment history from April to October 2012 when he
was hired as a warehouse worker for EV Logistics. He found this work involved
too much bending which aggravated his symptoms so he left there in November
2012.
[103] In May
2013 he worked as a painter with Rendal Painting and Restoration. The work was
seasonal only and he finished there in August 2013. In September 2013 he was
taken on at the Langley Event Centre as grill cook and dishwasher. He stopped
working there in December 2013.
[104] The
plaintiff testified that at one point, probably in 2011 or 2012, he had
aspirations to be a massage therapist. He went to a weekend course and enjoyed
it, but found it involved too much bending which aggravated his back.
[105] The
plaintiff also testified as to his career aspirations to travel up north to
Fort McMurray, to work on the oil rigs. He and his then girlfriend, Marissa,
obtained the necessary certificates and decided to apply for the job in
September 2012. However, the application involved a drug test and the plaintiff
knew he would fail it. Marissa was hired, and he was left behind.
[106] I find
that there was a real and substantial possibility that the plaintiff would have
found work on the oil rigs with Marissa. The loss of this chance was related to
the plaintiffs drug addiction, which I have found was caused by the Accident. He
would have earned approximately $85,807 at this employment up to the date of
trial. His actual earnings in that time period were approximately $16,000. This
must be deducted from the sum of $85,807 for a total gross past income loss of
$79,193.
[107] In my
view, the evidence relating to the plaintiffs employment prior to the fall of
2012 does not raise a real and substantial possibility that he would have
earned more during this time period but for the Accident. I set his total past
loss of income at $79,193. Income taxes must be deducted from this amount. I
expect that counsel should be able to agree as to the appropriate amount of
income taxes to be deducted from this part of the award.
C. Future Income Loss
[108] The
plaintiff submits that one measure of his future income loss is his loss of
opportunity to pursue employment as an oil rig worker in the future. The plaintiff
quantifies the present value of this loss as in the range of $740,650 to
$811,742.
[109] I disagree
that this amount could be anywhere near the real and substantial possibility of
loss the plaintiff faces. There was no evidence before me to suggest that the
plaintiff would not be physically capable of working as an oil rigger. The
barrier to this employment is his marihuana use. The plaintiff testified that
he now knew and understood that he must cease his marihuana consumption for the
sake of his health (he has just been diagnosed with Type 1 diabetes), his
relationship with his fiancé (who is vehemently opposed to his drug habit), and
his future career prospects. He is desirous of treatment and I will be awarding
him the cost of such treatment.
[110] Nonetheless,
the plaintiff will continue to lose income while he is in treatment. In
addition, there is a capital asset loss to consider. In cases where a young
plaintiffs employment history is not available, the courts have turned to the
principles in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 to determine
any future income loss. Factors weighing in favour of a higher award are the
plaintiffs age, and the relatively narrow field of employment opportunities that
were open to him in the first place, given his learning disability. The
plaintiff would always have been best suited to physical labour type jobs. There
is no evidence that he is incapable of doing those jobs, but they will take a
toll on him. Furthermore, he will always be at risk for drug relapse.
[111] Factors in
favour of a lower award are that after treatment, the plaintiff should be able
to pursue a more lucrative career in the oil fields, and be more marketable in
general.
[112] Although I
have chosen to assess the plaintiffs damages under this head as a loss of
capital asset, not loss of specific income stream, the earning figure of about
$60,000 per annum for oil rig workers is of some assistance, as is the average annual
earnings figure for unskilled labour of about $30,000 per annum. Taking the
middle range of $45,000 per annum, I assess the plaintiffs loss of capacity to
earn this amount of income in the future at 20%, or $9,000 per year. Using
Mr. Carsons income loss multiplier of $25,833 for each $1,000 of annual
income loss to age 65, I award the plaintiff $25,833 x 9 = $232,497. I round
this up to $275,000 to reflect the loss of income the plaintiff will experience
during his time at treatment.
D. Cost of Future Care
[113] As a claim
for future cost of care is a claim for a future pecuniary loss, the standard of
proof is once again a real and substantial risk of pecuniary loss.
[114] The
evidence is overwhelming that the plaintiff requires inpatient treatment in
order to become substance free. Furthermore, Dr. Lu opined that an
abstinence period of more than five years is needed to decrease long term
relapse risk. Dr. Lu stated that due to the risk noted, the plaintiff
needed specialized addiction treatment to develop an individualized treatment
plan that takes into account his MTBI, chronic pain, learning disability and
addiction.
[115] The
plaintiff led evidence from the director of community development at the Last
Door Recovery Society. It is expected that given the complexity of the
plaintiffs condition he will require a six month stay in the primary treatment
facility. In addition, due to his young age and lack of structure in his life,
the plaintiff would also benefit from a six month stay in the Last Doors
transition facility. The total cost of a six month stay in primary care and a
six month stay in extended care is $52,500.
[116] Dr. Lu
also recommended the plaintiff receive psychological treatment when facing
future stressors or important life transitions. The cost of psychological
counseling is approximately $160 per session.
[117] The
plaintiff testified that since February 2014 he has been taking a medication
called Cesamet in order to manage his pain symptoms and reduce his reliance on
marihuana. This medication costs approximately $175 per month.
[118] The
plaintiff seeks $52,500 for substance abuse rehabilitation, $6,400 for a future
psychological counseling reserve and $2,100 for one year of Cesamet for a total
of $61,000.
[119] I find the
plaintiffs claim to be reasonable in this regard and I award him the full
$61,000.
E. Special Damages
[120] The
special damages claimed by the plaintiff relay primarily to his rehabilitation
from the injuries sustained in the Accident. He claims $3,127.18.
[121] ICBC
submits, among other things, that some of the plaintiffs special expenses
involve transportation for medical and rehabilitation appointments. However,
Mrs. Fabretti testified at trial that the Fabretti family would attend
medical and rehabilitation appointments together. The expenses of the other
members of the family, including transportation, were awarded in an earlier
trial. Therefore, they should not be claimed in this case and I reduce the
claim of the plaintiff by the sum of $973.50. I award a total of $3,127.18 – $973.50
= $2,153.68 as special damages.
VI.
CONCLUSION
[122] I find the
defendants totally liable for the Accident.
[123] I find no
contributory negligence on the part of the plaintiff or his parents.
[124] I find
that the plaintiff is entitled to compensation for his injuries as follows:
1. Non-pecuniary
losses $100,000
2. Pass
income wage loss $ 79,193 (minus appropriate income taxes)
3. Future
income loss $275,000
4. Future
cost of care $ 61,000
5. Special
damages $ 2,153.68
Total $517,346.68
[125] Subject to
the Rules of Court, the plaintiff is entitled to his costs.
Madam Justice Kloegman