IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140722

Docket: M095202

Registry:
Vancouver

Between:

Rebecca
Field, an infant by her Grandmother and Litigation Guardian, Susan Joyce
Phillips, and the said Susan Joyce Phillips

Plaintiffs

And

Kamaljeet
Bains and Coast Capital Savings Credit Union and JDI 2000 Transport Ltd

Defendants

Before:
The Honourable Madam Justice Duncan

Reasons for Judgment

I.                
Overview

[1]            
On October 3, 2003, the plaintiff Rebecca Field, then a seven-year-old
girl, was returning home from ballet class with her mother. Their car was
struck by a semi-trailer truck and dragged for a distance along the highway. Liability
is admitted. The only issue before me is the assessment of damages.

[2]            
The plaintiff’s physical injuries consisted of some minor bruising. The focus
of the trial was the severity and duration of her psychological injuries. The
defendants do not dispute that the accident caused the plaintiff to develop Post-Traumatic
Stress Disorder (PTSD) and anxiety; however, counsel for the defendants
maintains those matters subsided within a couple of years of the accident and
do not impair her day-to-day functioning.

[3]            
The plaintiff claims for non-pecuniary damages of $75,000, special
damages of $1,359 for past counselling expenses, $15,000 to $20,000 for future
care to cover the cost of counselling, and an unspecified amount for loss of
capacity.

[4]            
The defendants submitted the non-pecuniary award should be set at $35,000,
with $2,000 for future care and nothing for loss of capacity. The defence does
not take issue with the amount claimed for special damages.

II.              
Evidentiary Overview

A.             
Lay Witnesses

1.              
Elizabeth Campbell

[5]            
Mrs. Campbell is the plaintiff’s mother. For ease of reference I
will refer to the plaintiff by her first name, Rebecca. On October 3, 2003, Mrs.
Campbell was driving Rebecca home from ballet along Lougheed Highway. A
semi-trailer pulled into the lane to the left of Mrs. Campbell’s car and
struck the car, which was then caught under the trailer. Rebecca screamed in
terror while the car was dragged along by the truck for a distance. She was subsequently
examined at the hospital but not treated for physical injuries. In the days after
the accident her mother noted she had bruises on her stomach.

[6]            
For several months after the accident Rebecca refused to get in a car. When
she finally relented she would watch for trucks out the back window. Upon
seeing one, she would curl up like a ball in the back seat and scream “we’re
going to die.”  This happened for a period of about six months every time the
family got in a car and Rebecca saw a truck. After that initial period of six
months, Rebecca would still panic and repeat “there’s a truck beside us” until
it passed.

[7]            
Rebecca’s anxiety spread to situations other than travelling in a car. She
would panic when she heard loud noises. Mrs. Campbell described one such incident
a year or two after the accident, when her daughter was eight or nine years of
age. As she was walking with Rebecca in a crosswalk they heard a school bus. Rebecca
panicked and pulled away to hide in the bushes and cry. For a time she refused
to go on school trips unless her mother drove because this fear of loud noises
prevented her from getting on the school bus.

[8]            
A year after the accident Mrs. Campbell took her daughter for four
sessions of counselling with Linda Chalmers. She could not afford any more
sessions and could not obtain funding through ICBC. Ultimately, counselling was
provided through ICBC and Rebecca has had a number of sessions with two
counsellors, most recently Laurel Hildebrandt.

[9]            
Mrs. Campbell said her daughter never returned to ballet and was
not the same outgoing child she was before the accident. Rebecca suffered nightmares
for about two years after the accident. She would wake up crying and her mother
would comfort her. She also developed anxiety about germs. She would not eat
fruits or vegetables for a time because other people had touched them.

[10]        
Rebecca’s schooling proceeded at a normal pace, though she had some
anxiety after the family moved and she had to switch schools, and some anxiety
about her graduation ceremony. On cross-examination, Mrs. Campbell agreed
that her daughter has finished high school and has plans to take some
post-secondary education. She is in good health and has a positive network of
friends. Mrs. Campbell also agreed that it was not unusual for anyone to
be anxious about an occasion such as a graduation ceremony.

[11]        
The first two years after the accident were very difficult for Rebecca and
her family. Once she calmed down a bit about driving things were better.
However, she is still anxious about certain things. While Mrs. Campbell
acknowledged that one of the counsellors she took her daughter to, Peggy Brown,
noted Rebecca could drive long distances in a car in 2011, Mrs. Campbell
said her daughter still gets anxious about trucks passing her while she is in a
car. When she exhibits anxiety the family tries to talk her through her fears.

[12]        
Mrs. Campbell testified Rebecca was very upset and stressed about
the court process, which necessitated a meeting with a psychologist at the
family home because she did not want to travel to his office near Vancouver.

[13]        
Mrs. Campbell took Rebecca to see the family’s chiropractor, Dr. Banman,
after the accident but has no recollection of what, if any, physical symptoms
she was exhibiting that prompted the visits to him.

2.              
Susan Kirchmayer

[14]        
Ms. Kirchmayer is Rebecca’s grandmother. She described an incident
which occurred a few weeks before trial. She was in a car with her daughter, Mrs. Campbell,
and Rebecca. The car was in the slow lane and a semi-trailer truck came up
behind it. She described her granddaughter repeating the phrase “he’s getting
close to the car” until it passed them.

[15]        
Ms. Kirchmayer also noted her granddaughter’s anxiety level
increased as the trial date approached.

3.              
Rebecca Field

[16]        
Rebecca is now 17 years of age. With the consent of counsel for the
defendants she gave her evidence via videoconference. Counsel asked her to
recount her memory of the accident. Rebecca recalled it occurred on a Friday
after her ballet class. It was still light outside as her mother drove them
home. A semi-truck in the left lane struck them and dragged their car along for
a distance. Rebecca was scared and began “freaking out”, which she explained
meant she was screaming and shaking. She feared her mother might be killed by
the truck. After the accident she went to the hospital with her father. She did
not recall being bruised or sore but remembers her stomach hurt.

[17]        
Right after the accident Rebecca developed a “huge fear” of semi-trucks
and loud noises. For a time she did not want to get in a car because she was
scared of going places. She had anxiety attacks in the car which involved her
screaming and panicking. She spoke about an incident where she was playing with
her brother and heard a bus or truck drive by. She got scared and hid in the
bushes. Her brother went home and got their mother to get her out of hiding.

[18]        
Rebecca had nightmares on a regular basis about the accident. They involved
hearing loud noises and seeing the truck’s tire coming up to the car. She
thought this pattern stopped about a year after the accident though she still
had occasional nightmares in the ensuing years.

[19]        
The first counsellor Rebecca saw was Linda Chalmers, who used play
therapy to act out the accident with toy cars. She also saw Dr. Kaushansky
and Peggy Brown. Rebecca saw Dr. Weiss at a time when she acknowledged her
anxiety was quite high, she felt depressed and thought she had a disease or
illness that nobody else knew about. On cross examination Rebecca acknowledged
that some of the reasons she sought counselling in the past couple of years
related to family matters.

[20]        
For the past two years Rebecca has been seeing Ms. Hildebrandt for
therapy. At the initial visits her anxiety was worse than it had been for some
time and extended beyond riding in cars. She would panic and her mind would go
completely blank. Ms. Hildebrandt taught her a variety of techniques which
helped her.

[21]        
Finally, just prior to trial, Rebecca saw Dr. Kaushansky concerning
her fears of going into Vancouver for court.

[22]        
Rebecca has attained her driver’s licence, with the N designation. She
drives on the freeway and if she sees a truck she focusses on staying calm
until she passes it. If a truck swerves near her she will panic. She described
the panic symptoms as a racing heart and fast breathing. She has driven from
her home in Mission as far as Langley but will not drive into Vancouver. On
cross-examination Rebecca agreed her driving anxiety got better over time and
by 2010 she was able to take short trips in the car around Mission. She agreed
she saw Peggy Brown in June 2011 for anxiety about driving but did not think
she had other issues at that time.

[23]        
Loud noises are not much of a problem anymore and her fear of germs is
gone. On a scale of zero to ten, with zero being how she felt before the
accident and ten being the worst she was after the collision, Rebecca assessed
herself as feeling like a two most days. On bad days she feels like a six but overall
the anxiety is easier to deal with. As the court date came closer, she hit a
six or seven. That level of anxiety stops her from going to events that are in
Vancouver or involve a busy drive. She also feels stomach aches or back pain
for no reason. She cannot recall a time since the accident that she felt
“absolutely okay” with no anxiety. However, Rebecca agreed on cross examination
that with the court case out of the way her anxiety would probably decrease.

[24]        
Rebecca did not use medication after the accident and is adamant she does
not want to use medication to deal with her anxiety. She agreed the accident
has not affected her schooling or her grades. She has friends and hobbies. She
has plans to take a year off and then pursue some post-secondary education or
training. She is interested in hairstyling or carpentry as career options.

B.             
Counsellors and Doctors

1.              
Linda Chalmers

[25]        
The first counsellor Rebecca saw after the accident was Linda Chalmers. Counsel
arrived at an admission with respect to her evidence as follows:  the plaintiff
attended for counseling related to symptoms of being overwhelmed while in a car
with her mother. In such a situation the plaintiff exhibited anxiety. She would
cover her eyes and cry and shake when a large truck or bus shared the road
space with her mother’s car.

2.              
Dr. Melvin Kaushansky

[26]        
Dr. Kaushansky is a neuropsychologist. He primarily specializes in
changes in cognition and psychosocial functioning. As Rebecca was not diagnosed
with a brain injury, he assessed her in his capacity as a psychologist and gave
expert opinion evidence in that capacity.

[27]        
Dr. Kaushansky first assessed Rebecca in 2009 when she was 13 years
of age. He wrote his report in 2011. He saw her again a few weeks before trial.

[28]        
Dr. Kaushansky found nothing untoward in Rebecca’s pre-accident
history but noted in 2009 she exhibited a very high startle reflex to noises or
sudden occurrences like a door slamming. He also noted her fear of travelling
next to a large vehicle which persisted from the time of the accident to 2009. Those
two factors raised his suspicion that she was suffering from PTSD.

[29]        
Dr. Kaushansky found Rebecca had marked anxiety disorder around a
number of issues, not just driving. He described her anxiety as the tentacles
of an octopus which affected many areas of her life. The anxiety disorder
started with fear of trucks, then moved on to fear of germs, and included features
of an obsessive compulsive disorder which fortunately has remitted over time.

[30]        
In Dr. Kaushansky’s opinion, based on his observations, Rebecca developed
PTSD as a result of the accident. The accident represented a life threatening
situation to herself and her mother. She re-experienced the trauma through
dreams or invasive thoughts while doing mundane tasks. She exhibited avoidance by
refusing to get in a car after the accident for some time. Finally, she
exhibited arousal, the high startle reaction and/or hypervigilance. These
symptoms lasted longer than a month and caused distress in her life. Compendiously,
in Dr. Kaushansky’s opinion, they added up to a diagnosis of PTSD.

[31]        
Rebecca’s symptoms have waxed and waned since the accident but Dr. Kaushansky’s
opinion is she is a vulnerable individual as her PTSD could be re-triggered
despite a full diminishment of symptoms in 2009. Dr. Kaushansky opined
that her young age at onset was significant and meant she would have some form
of anxiety over her lifetime. He forecast that she will likely live quite a
normal life but will be subject to an inordinate amount of stress from normal
things, such as a difficult boss or relationship. He did not suggest ongoing
therapy but was of the view that at times of crisis she would need to see a
therapist. Time will not heal her. PTSD affects children more than adults
because children do not have the psychological mechanisms to deal with it as an
adult would.

[32]        
On cross-examination, Dr. Kaushansky agreed Rebecca’s score on
standard forms administered to her during his assessment indicated she was
reasonably well adjusted; however, children with a low or zero score often are
being defensive and such scores are suspect. The data from the forms did not
tell the whole picture and the clinical impression of her was important in
gaining a full picture of her condition.

3.              
Peggy Brown

[33]        
Ms. Brown is a registered clinical counsellor who saw Rebecca in
November 2010 and June 2011. Rebecca expressed an ongoing fear of driving in
vehicles, exhibited by anxiety, panic attacks and nightmares about driving.
Ms. Brown taught her some cognitive behavioural therapy techniques. The
techniques were designed to distract her from her fears through listening to
music, or talking about friends or current events rather than focussing on what
was going on around her.

[34]        
At the June 2011 session, Rebecca did not report problems with driving
and fear did not restrict her life at that time. She reported to Ms. Brown
that she used the distraction techniques with some apparent success.

[35]        
On cross-examination, Ms. Brown acknowledged the fears reported by Rebecca
were restricted to situations while she was riding in a car.

4.              
Dr. Margaret Weiss

[36]        
Dr. Weiss is a child psychiatrist. She saw the plaintiff in 2012. Her
opinion largely mirrors that of Dr. Kaushansky’s as she also diagnosed Rebecca
with PTSD and anxiety disorder. Dr. Weiss described PTSD as having three
phases:  the acute stress reaction phase for the first month; three to five
months of PTSD symptoms during which time the majority of people will actually
show resolution; then a period after five months when people are symptomatic
and develop comorbid disorders such as depression. After five months PTSD is
considered chronic or complex.

[37]        
Dr. Weiss noted Rebecca had recurrent nightmares about the accident
which had abated somewhat but she still suffered from insomnia years later. Rebecca
exhibited generalized anxiety which affected her much of the time and which she
put tremendous effort into managing. She had ongoing difficulty with driving
and at the time of Dr. Weiss’s assessment was reluctant to get her
learner’s licence. She reported a fear of germs and different foods, and
exhibited ritualistic behaviours in that regard. She liked her rituals as they
made her feel like things were under control.

[38]        
Rebecca’s PTSD was not treated in its early phase, which Dr. Weiss viewed
a risk factor. She has mild residual symptoms but has learned coping strategies.
She told Dr. Weiss she did not want further treatment, which the doctor
said was quite normal as people often do not want to bring back aspects of what
happened to them. Dr. Weiss felt Rebecca was functioning well enough but was
self-aware about the need for immediate treatment if the trauma was retriggered.

[39]        
Dr. Weiss thought Rebecca’s anxiety was severe enough that it might
inhibit her career path; however, she acknowledged on cross-examination she did
not have up-to-date information about Rebecca’s schooling and post-secondary
ambitions. She maintained the plaintiff would have marked functional impairment
in her life as a result of the PTSD and anxiety. She agreed with Dr. Kaushansky
that normal life stress could bring back the full panoply of anxiety symptoms.

5.              
Laurel Hildebrandt

[40]        
Ms. Hildebrandt is a clinical counsellor who treated Rebecca over
the course of nine sessions from December 2012 to January 2014. Rebecca presented
with a history of anxiety attacks and depression stemming from a car accident. She
expressed anxiety in situations other than driving. She would overeat or starve
herself when anxious.

[41]        
Ms. Hildebrandt used a combination of cognitive behavioural,
observed and experiential integration (OEI), and levelling techniques to assist
the plaintiff. She explained that OEI involves the client working to integrate
left and right brain by covering the right or left eye. The levelling technique
is a holistic approach to addressing negative thoughts and has a religious
component to it.

[42]        
When Ms. Hildebrandt first saw Rebecca she administered the Beck
depression inventory. Rebecca scored a 32, which is high. At the last session, she
scored a 4, which indicated a marked improvement. On initial visits Rebecca would
exhibit visible distress when asked to talk about the accident. Her eyes darted
back and forth and she had nervous hand gestures. Towards the end of the
counselling sessions she was much calmer and integrated the techniques Ms. Hildebrandt
had taught her.

C.             
Findings of fact

[43]        
Credibility was not a central issue at trial but I found the witnesses
credible and, in most respects, reliable. Reliability was affected in some ways
by the passage of time. For example, Mrs. Campbell’s memory of certain details,
such as the reason she took Rebecca for chiropractic treatment after the
accident, has faded; however, she did not attempt to guess or fill in gaps. The
same observation applies to the plaintiff, who presented as candid,
straightforward and not inclined to fill in details where she was uncertain.

[44]        
Rebecca was a seven-year-old child when she was involved in a
frightening car accident with her mother. She suffered from recurrent
nightmares about the accident for approximately a year and intermittent
nightmares for some time after. She would not get in a car for a number of
months after the accident. When she finally did she was hypervigilant, on the
lookout for large trucks. The sight of a large truck near the family car caused
her to go into a severe anxiety phase. She would curl up in a ball in the back
of the car and obsessively talk about the truck. Rebecca also had a fear of
loud noises from buses and trucks, which at its most severe caused her to run
and hide or avoid taking the school bus for outings with her classmates. She
never returned to ballet classes.

[45]        
Rebecca is now a mature and well-spoken 17-year-old. She has worked very
hard to overcome the effects of the accident by seeking out counselling and
successfully integrating coping techniques into her daily life.

[46]        
I accept the opinions of Dr. Weiss and Dr. Kaushansky that the
plaintiff developed PTSD as a result of the accident. I accept their opinions
that Rebecca’s fear of large trucks spilled over into a generalized anxiety
about a number of different things. While it appears Rebecca has recovered from
the psychological effects of the accident, the PTSD and anxiety are in
remission rather than completely eradicated.

[47]        
As for the plaintiff’s prognosis, I prefer Dr. Kaushanky’s opinion
over that of Dr. Weiss. Dr. Kaushansky was of the view that Rebecca would
live quite a normal life but be significantly more affected by life stressors
than other people. He described it as a waxing and waning effect which would
necessitate periodic visits with a counsellor. This appears to have been the
case, as Rebecca sought out assistance from Ms. Hildebrandt when her
stress and anxiety levels over the accident as well as family matters became
too much for her to deal with on her own. Ms. Hildebrandt’s intervention
appears to have been successful in assisting Rebecca with an abatement of her
anxiety.

[48]        
Dr. Weiss’s prognosis that the plaintiff would have marked
functional impairment in her life as a result of the PTSD has not, in my view,
come to fruition. Rebecca has managed to attain her driver’s licence despite
the frightening after-effects of the accident. She graduated from high school,
has a positive group of friends and has realistic ambitions for future career
paths which she will further investigate after a year off.

III.            
Assessment of Damages

A.             
Non-pecuniary damages

[49]        
Plaintiff’s counsel submitted Rebecca has had PTSD and high anxiety for 10
years and while those conditions are in remission, they can arise again in
response to normal life stressors. To ground his submission for a non-pecuniary
award of $75,000, he relied on the following authorities:

Mossiman v. Guliker, 2014
BCSC 492:  the 55-year-old plaintiff was in three accidents. In addition to
physical injuries she was diagnosed with PTSD. The trial judge awarded $120,000
in non-pecuniary damages.

Bonham v. Weir, 2009 BCSC
1080:  the 47-year-old plaintiff was a truck driver who had to crawl out of the
burning cab of his truck after what the trial judge described as a horrific
collision. He had minor physical injuries but was diagnosed with PTSD. The
symptoms persisted more than two years after the collision and affected his
personality, his confidence in his abilities and his enjoyment of activities. He
was awarded $75,000.

Lemieux v. Evers, 2000 BCSC
1464:  the plaintiff was 11 years old when he was hit by a car. He was 17 at
the time of trial and suffered from panic attacks and headaches which he
maintained affected his ability to concentrate at school. The trial judge
awarded him $65,000 in non-pecuniary damages.

[50]        
Counsel for the defendants maintained the accident neither affected the
plaintiff’s schooling or other parts of her life, nor caused her physical
injury. He acknowledged Rebecca had nightmares right after the accident as well
as extreme driving anxiety, but noted both those symptoms have receded. He
disputed Dr. Weiss’s opinion that Rebecca has marked functional impairment
from the accident and suggests Dr. Kaushansky’s more positive prognosis of
occasional flare-ups is a more realistic scenario. As noted above, I accepted Dr. Kaushansky’s
more positive prognosis.

[51]        
Counsel for the defendants suggested an award of no more than $35,000
for non-pecuniary damages, in light of the following authorities:

Nemoto v. Phagura, 2012 BCSC
1809:  the then-13-year-old female plaintiff was in an accident with her mother
and brother. She sustained soft tissue injuries that interfered with school and
sports for a short period and had some anxiety that had resolved prior to trial.
The trial judge awarded $25,000 for pain and suffering.

Nemoto v. Phagura, 2014 BCSC
262: the plaintiff, 15 years old at the time of trial and 10 at the time of the
accident, was the brother of the plaintiff in the other Nemoto decision and
involved in the same accident. He developed tension and pain in his back,
shoulder and neck as well as headaches and a psychological injury which
included nervous tension in traffic and nightmares. The trial judge awarded him
$40,000 for non-pecuniary damages, finding he was more seriously affected than
his sister.

[52]        
The purpose of non-pecuniary damages is to compensate a plaintiff for
pain, suffering and loss of enjoyment of life. Stapley v. Hejslet, 2006
BCCA 34, 236 D.L.R. (4th) 19, provides guidance with respect to determining an
award for non-pecuniary damages:

[46] The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris (2004), 237 D.L.R. (4th) 193] that influence an award of
non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life.

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

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

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

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

[53]        
As outlined above in my findings of fact, the plaintiff experienced a
frightening car accident when she was seven years of age and suffered
pronounced psychological injuries in its aftermath. They affected her ability
to travel comfortably by car. While that difficulty appears to have resolved, it
is only due to Rebecca’s hard work with counsellors and a degree of stoicism. The
accident caused her frequent nightmares for the first year or so after the
accident and intermittent ones thereafter. It caused her to have a fear of loud
noises which hampered her ability to fully participate with her classmates in
school field trips because she was afraid of getting on the bus. She never
returned to ballet, an activity which she enjoyed before the accident.

[54]        
The degree of PTSD and anxiety suffered by the plaintiff in this case
falls generally between that suffered by the child plaintiffs in Lemieux
and the second Nemoto decision noted above, where the non-pecuniary
awards were $65,000 and $40,000 respectively. I acknowledge there are
differences between those cases and the one before me. In Lemieux, the
plaintiff had some physical injuries in addition to psychological ones. In Nemoto,
the acute phase of the psychological symptoms was shorter and perhaps less pronounced
than that which the plaintiff suffered in the instant case.

[55]        
Taking into account the findings of fact in this case, the factors in Stapley,
and the comparable authorities involving children with PTSD, I award the plaintiff
$50,000 in non-pecuniary damages.

B.             
Cost of future care

[56]        
It is not seriously disputed that Rebecca will require counselling in
the future to assist her with flare-ups of anxiety. No one can predict the
frequency of this need. A reasonable amount, based on the frequency of
counselling in the past, is 10 sessions every five years to age 65. At a cost
of $100 per session this would come to approximately $10,000. I was not
provided with evidence about the effects of inflation on the current value of
$10,000; however, taking that factor and other contingencies into account, I
award $7,500 for future care.

C.             
Special damages

[57]        
The parties agreed on $1,359 as the sum for special damages. This amount
reflects monies paid on behalf of the plaintiff for counselling.

D.             
Loss of future capacity

[58]        
Counsel for the plaintiff sought an unspecified amount of damages under
this head to reflect the possibility that Rebecca may lose time at work in the
future to attend counselling sessions if she suffers a recurrence of pronounced
anxiety symptoms. I agree with counsel for the defendants that there is no
evidence upon which to base such an award in this case and I decline to so
order.

IV.           
Summary and Costs

[59]        
In summary, the plaintiff is awarded the following amounts:

[60]        
Unless there are matters of which I am unaware, the plaintiff is
entitled to costs. If the parties wish to speak to costs they must make
arrangements to do so with Trial Scheduling within 30 days.

“Duncan J.”

____________________________________

The
Honourable Madam Justice Duncan