IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Sebaa v. Ricci, |
| 2015 BCSC 1492 |
Date: 20150825
Docket: M113625
Registry:
Vancouver
Between:
Eva Sebaa
Plaintiff
And
Yita Eileen Ricci
Defendant
Before:
The Honourable Mr. Justice N. Brown
Reasons for Judgment
Counsel for the Plaintiff: | A.C.R. Parsons |
Counsel for the Defendant: | K. Armstrong |
Place and Date of Trial: | Vancouver, B.C. March 16 – 20, 23 – |
Place and Date of Judgment: | Vancouver, B.C. August 25, 2015 |
Table of Contents
EVENTS IMMEDIATELY POST-ACCIDENT
1 Mr. O.
Chis, supervisor at Creo/Kodak
2 Mr. D.
Mufford, supervisor at Schlumberger
3 Finding
on loss of employment at Schlumberger
RESUME OF THE PLAINTIFFS MAIN
INJURIES AND EFFECTS
WORK AT VERATHON BETWEEN MARCH 1,
2014 AND AUGUST 23, 2013
1 Ms. L.
Meyers, HR Department at Verathon
1 Dr. M.
Adrian, a physiatrist
4 Dr. K.
Mitha, a family physician
6 Dr. S.
Horlick, an orthopaedic surgeon
7 Dr. T.
Tomita, a psychiatrist
.1 Non-pecuniary
awards in comparable cases
3 Loss
of past earning capacity
4 Loss
of future earning capacity
.1 Loss
of homemaking/housekeeping capacity
.01 Trial
medications, orthotist and medial arch supports
INTRODUCTION
[1]
The plaintiff claims damages suffered from a heavy head-on motor vehicle
collision (the Accident) that occurred on December 30, 2010. The plaintiff
suffered multiple soft tissue injuries. These included multiple contusions,
chest injuries and rib injuries. However, the lasting and most significant
injuries alleged are as follows:
a) mechanical neck
pain with pain referred into the upper extremities, most notably the left
shoulder and arm;
b) mechanical lower
back pain;
c) a fractured left
ring finger at the middle phalanx;
d) soft tissue and
nerve injury to the right knee, causing nerve and soft tissue pain;
e) Post-Traumatic Stress
Disorder (PTSD);
f) depressive
disorder with anxiety, chronic and severe; and
g) multifactorial
chronic pain disorder associated most notably for psychological factors and a
general medical condition.
[2]
The Court sees those kinds of combinations in many cases. What
distinguishes this case from others is the nature and intensity of the
plaintiffs psychological reaction to some twists and turns in the accident investigation
that preceded judicial determination that the defendant, Ms. Yita Eileen
Ricci, was wholly liable for the accident. Another distinguishing aspect of the
case is the seeming intractability of the plaintiffs psychic injuries and
physical symptoms; the impact on plans the plaintiff and her husband made to
begin an In Vitro Fertilization (IVF) program; and their eventual decision to
move to a Middle Eastern country, a decision the plaintiff partly attributes to
what she and her husband perceived as unjust treatment in the manner in which
ICBC and the police conducted the examination.
[3]
The defendant, Ms. Ricci, maintains the plaintiff unreasonably
stopped taking anti-depressant medication and counselling; and so failed in her
duty to mitigate her damages. Originally the plaintiffs husband was named as a
defendant; but having been found blameless in a liability trial, I will be
referring to just the one remaining defendant.
[4]
The plaintiff claimed damages that total over $1 million under the usual
heads of damages: non-pecuniary damages, loss of homemaking capacity, past loss
of earning capacity, loss of future earning capacity, special damages, and cost
of future care.
[5]
The defendant acknowledges the plaintiff sustained significant injuries
in a serious and dramatic collision, but questions, among other things, the
nature and extent of her disability, her alleged unemployability, her
prognosis, and whether she has reasonably mitigated her damages.
[6]
In addition to the plaintiff and her husband, Mr. Ehab Al-Tamimi,
the Court heard from three lay witnesses: Mr. Ovidiu Chis, the plaintiffs
work supervisor between 2006 and 2009; Ms. Laura Meyers, a human resources
supervisor at the plaintiffs last place of employment between March 1, 2013
and August 23, 2013; and Mr. Dan Mufford, the plaintiffs supervisor when
she worked at Schlumberger Water Services (Schlumberger) between July 26,
2010 and the date of the accident, December 30, 2010.
THE ACCIDENT
[7]
Around 4:30 p.m. on December 30, 2010, the plaintiff was a passenger in
a Honda Civic being driven by her husband, Mr. Al-Tamimi. They were
eastbound on Greystone Drive in Burnaby, British Columbia, on their way home
from grocery shopping. Greystone Drive had one eastbound and one westbound lane,
separated by a solid yellow line. Mr. Al-Tamimi was driving responsibly.
Coming towards them out of a curve and approaching at high-speed, the plaintiff
saw the car of the defendant, Ms. Ricci, swerving from side to side. When
she first noticed the approaching car, the plaintiff could not see the drivers
head. As car drew nearer, the defendant crossed the east-west dividing line. Mr. Al-Tamimi
took evasive action, but there was too little time and the defendants car
struck their Honda Civic head on. The front end damage to both cars was
extensive, suggestive of a very heavy head-on collision.
[8]
The plaintiff could not move after impact. She recalled seeing her
husband slumped, unconscious and bleeding. She was not sure if he was alive.
Her body felt numb and she could not move.
[9]
She saw the defendant exit the car with her purse in hand. She looked
towards the plaintiff or their car. Believing the defendant was fleeing the
scene, she asked a young male bystander to pursue her. He returned shortly with
the defendant. She heard the defendant admit responsibility at the side of the
road and a second time, in the ambulance she and her husband had shared with
the defendant on the way to the hospital.
[10]
At the Burnaby Hospital, a police officer assured the plaintiff she need
not worry, as the defendant had taken responsibility and that a witness had
supported their version. A few months later, a lawyer that the plaintiff and
her husband had retained advised them that the defendant had denied
responsibility and that the witness had changed her statement. About four
months after the accident, ICBC advised the plaintiff and Mr. Al-Tamimi
they were now finding him totally at fault. Apparently, the plaintiffs lawyer
and ICBC had inadvertently retained the same private investigator, who then
obtained two contradictory statements. As we shall see, this stirred up a
compounding emotional reaction on top of the pain and disability the plaintiff
and her husband had already been dealing with. They were both badly injured and
struggling psychologically and physically from the accident.
[11]
Liability had to be determined and on June 16 and 20, 2014, Funt J. of
this Court found the defendant, Yita Eileen Ricci, 100% responsible for the
Accident. By that time however, the parties say they had lost all confidence in
the police, ICBC, and the medical and legal system. They say these feelings
figured to some extent in their eventual 2014 decision to immigrate to Qatar;
although I find better prospects for the husband was what most influenced their
decision to move.
EVENTS IMMEDIATELY POST-ACCIDENT
[12]
The plaintiff left the hospital between 1:00 a.m. and 2:00 a.m. She
testified she found the first three months after the accident worst. Pain
stabbed her in the ribs when she took a deep breath. Photographs taken at the
hospital reveal extensive obvious bruising on various parts of her body,
including points where the lap and shoulder seatbelts she wore would be
situated at impact. Bruising on her right knee consisted with imaging and the symptoms
of soft tissue and nerve pain she continued to complain of at trial.
[13]
The plaintiff was unable to return to work at Schlumberger (to be
discussed in more detail later) and she eventually lost that position, not attributable
to the accident. Mr. Al-Tamimi also sustained significant injuries in the
collision, but he had no choice but to perform the housework and help the
plaintiff to dress, eat, use the toilet, bathe, etc. He felt fortunate in
having found a job at a company within a few minutes walking distance of their
home. His hourly wage was only $14 an hour, much less than what he was
accustomed to and well below his experience and skill level; shortcomings he
felt were set off by the fact that could get home each lunch hour and during
morning and afternoon coffee breaks to assist the plaintiff to the washroom and
ensure she had meals. Another motivation for Mr. Al-Tamimis having taken
the position, despite his injuries, was to minimize depletion of the money the
couple had saved for the IVF program, which had been set to commence in January
2011.
[14]
The plaintiff clearly required homemaking assistance at the time, but
the plaintiff states the adjuster declined it. When help was approved in March
2011, however, the plaintiff stated she could not take advantage of it because
she found she could not stand having people in her home and touching her
possessions; she preferred to manage on her own.
[15]
The couple were feeling considerable financial strain. Their car was
clearly a total loss. Mr. Al-Tamimi had to rent a vehicle and payment for
his old vehicle was not forthcoming from ICBC. He had to purchase another one
in February 2011.
[16]
As mentioned earlier, the parties learned four months after the accident
that based on the witnesss changed statement, ICBC had determined liability in
the defendant Ms. Riccis favour. This was a turn of events that both the
plaintiff and Mr. Al-Tamimi said shocked and devastated them. The
plaintiff then had to retain new counsel because the changed determination on
liability had created a conflict of interest for the lawyer that had previously
been representing both her and Mr. Al-Tamimi.
PRE-ACCIDENT BACKGROUND
[17]
The plaintiff was born and raised in Hungary, her early years spent in a
village. The family moved to a larger town, where the plaintiff completed high
school in 1996. She evidently was a good student, with a five point average in
high school. In 1997, she and her first husband, who was from Algeria, moved to
England in search of opportunities. Hungarian and Croatian are her native
languages. She studied English in England, and by the time they immigrated to
Canada, in 1998, had gained some facility in it.
[18]
When the couple arrived in Canada, the plaintiff studied English again,
obtained a grade 12 equivalency certificate in 2002, and followed that with
some business administration courses. It was about that time that she started
to date her current husband, Mr. Al-Tamimi and to start working for Sears
Brentwood, work as a cosmetics manager. In 2003, she started working with a
company called Creo Inc. Creo was purchased by Kodak, in 2004. The plaintiffs
time at Creo/Kodak progressed well. Creo trained her to work as an
electro-mechanical technician. She enjoyed the assembling of types of equipment
used in the printing industry and businesses related to it. The plaintiff
noticed her own logical thinking processes seemed to equip her well for the
work. She was progressing well when the economic slowdown that began in earnest
in 2009 had culminated in the layoff of about 2,800 of the companys 3,000
employees.
[19]
One of last of those 3,000 employees to be laid off at Creo/Kodak was Mr. Al-Tamimi,
who the plaintiff had met there. He is well-educated, owning a degree in
chemical engineering bestowed by a university in Jordan, and both an
environmental engineering qualification at BCIT and a business degree from
BCIT.
[20]
The couple had started living together in 2003. By 2010, they had agreed
to purchase a townhouse which they renovated from top to bottom. The plaintiff
recalled the Olympics were on around then, and how she and her husband fully
participated in and enjoyed the Olympic experience.
[21]
Although children figured largely in the plans of the plaintiff and Mr. Al-Tamimi,
they did not really focus on that until about 2006. After no pregnancies
materialized, they began to realize something was wrong. They received
referrals to specialists who prescribed medications and gave advice, but
without the results they were hoping for. In about 2008/09, they visited the
Pacific Centre for Reproductive Medicine where they learned IVF was their only
option. At that time, it would cost roughly $30,000. Both had to be tested
which revealed the factors that needed to be addressed.
[22]
They decided to pursue IVF. To raise the $30,000 they required, they cut
vacations, eating out, etc. By the time of the December 30, 2010 accident, they
had saved enough and were about to embark on the IVF program. A large portion
of what they managed to save came from the parties Creo/Kodak severance
packages. The plaintiff looked hard for work, but the economic downturn made it
difficult to find the kind of work for which she was qualified.
SCHLUMBERGER – JULY 2010
[23]
About five months after her marriage to Mr. Al-Tamimi on February
10, 2010, the plaintiff found a job on the Internet. An American company
processed the applications and conducted interviews for the prospective
employer, Schlumberger, a multinational company specialized in the manufacture
of survey equipment and tools for oil exploration. The plaintiff performed the
same type of work she had done at Creo/Kodak. She felt she had done very well
at Schlumberger and had received good evaluations. When the accident happened
on December 30, 2010, the plaintiff was still in the six-month test period.
1
Mr. O. Chis, supervisor at Creo/Kodak
[24]
The plaintiff called Mr. Ovidiu Chis, who was the plaintiffs
supervisor from 2006 to 2009 at Kodak. He stated that the plaintiff performed
well and produced very good quality work, and that he never encountered any
difficulties with her. However, he characterized her skills as average. Other
employees, however, performed the more complex tasks. This disagrees somewhat
with the plaintiffs characterization of the level of sophistication of the
work she engaged in at Kodak. As for the layoffs that occurred in 2008 – 2009, Mr. Chis
explained that Kodak completely dissolved the optical manufacturing department
that the plaintiff worked in.
2
Mr. D. Mufford, supervisor at Schlumberger
[25]
Mr. Dan Mufford, the plaintiffs supervisor at Schlumberger,
testified that it was a temporary increase in work at Schlumberger that had led
to the hiring of temporary employees. When the plaintiff was injured, a
temporary employee replaced her for three to four months. As there was no
further work, beyond that however, the plaintiff would not have been kept on at
Schlumberger and that there was no prospect she would have been transferred to
a different department; something that have never happened in the 15 years he
had been with the company. Questioned about the plaintiffs testimony that she
been asked to prepare documents that would assist other employees about work
methods, etc., he denied he asked or encouraged the plaintiff to prepare
special personnel materials. He explained that she was just supposed to write
down what she was doing at work at the start of her employment and then to
update it from time to time. She was not supposed to take that work home
because that would constitute a significant breach of data security. He also
denied that the plaintiff had asked him to fund a technical writing course at
BCIT as the plaintiff testified.
3
Finding on loss of employment at Schlumberger
[26]
I find the plaintiff misunderstood the purpose of keeping the records about
the nature of her work, her supervisors had asked of her. English was not a
first language, and there was room for such misunderstandings to occur. She may
have been thinking she would like to attend BCIT to study technical writing,
but I cannot find her supervisors encouraged this or that they had discussed
the company funding her attendance. Further, without the accident, the
plaintiff likely would be laid off no later than four months after the
accident, which would have taken her to April 2011. One would reasonably
expect, however, that had she sought work in her field, she could have obtained
a good letter of reference from Schlumberger, where she was well-regarded as a
reliable employee.
PRE-ACCIDENT ACTIVITIES
[27]
Before the accident, the plaintiff experienced some headaches around the
years 2003/2004, caused, as investigations confirmed, by stress. An MRI found
no organic cause. The symptoms ended. She denied she ever experienced neck
pain, back pain, depression, or anxiety.
[28]
As for recreation, the efforts of the plaintiff and her husband to save
money for IVF left little money over recreation, but they frequently enjoyed
walking, hiking on local mountain trails, long drives into the North Shore mountains,
weekend trips to the U.S., and renovating their townhouse. They enjoyed the
company of the many friends they had made and attended barbecues at least twice
a month.
[29]
As for homemaking activities, the plaintiff did most of the cooking,
cleaning, and other household chores. She paid the bills. Her husband enjoyed
cooking and took the garbage out. She had no neck complaints or back complaints
whatsoever before the accident.
[30]
The plaintiffs psychic injuries have completely disrupted her social
life. Where once she explained that she had dear friends as well as others with
whom she had close relationships before the accident, now she cannot imagine
meeting with them. She said that she did not fear meeting with them, but did
not want to talk to them about her feelings or what it happened to her.
[31]
The evidence justifies a finding that before the accident the plaintiff
had no physical problems of the kind she suffered as a result of the accident.
Likewise, there is no history of depression, anxiety, posttraumatic trauma
symptoms, no social phobias and no limitations. She was slightly overweight,
and smoked. She did not use drugs, had no addiction problems, and the only
medications that she took before the accident were those related to her IVF
program.
[32]
She had no criminal record. She had occupational skills, a good work
ethic, a happy marriage, and a circle of friends. To all appearances, she had a
stable marriage to Mr. Al-Tamimi, who, despite his frustration over some
of the plaintiffs behaviour, to all appearances has been and remains
solicitous and loyal towards his wife.
RESUME OF THE PLAINTIFFS MAIN INJURIES AND EFFECTS
[33]
The plaintiffs physical symptoms and functional limitations following
the accident largely conform to and are adequately set out in the medical
reports, so I will not recount all of the plaintiffs testimony here. The most
significant problems, briefly are:
§
headaches daily for four months, now twice weekly;
§
left shoulder pain, constant, and at times intense at days end,
if she exerts herself too much. Tension causes the shoulder to rise up to ear
level. Since the accident, the left shoulder has never resumed its former
position. Pain interferes with sleep;
§
her left hand, fractured in the accident, continues to ache,
sometimes swells and tingles, and takes on a mottled appearance. The skin
sometimes peels. Following the accident, a lesion on the hand split open; had
to be sutured but repeatedly split open. It took seven months for it to close;
§
although therapy improved her upper back symptoms, she continues
to experience daily pain in that area;
§
she feels pressure on the right knee and pain from a walk of as
little as three blocks. Touching or contact from clothing or bed sheets,
creates an unpleasant situation on the skin. She walks slowly, fearful of
falling; and
§
right foot pain, appearing about when she started physiotherapy
and requiring supportive shoes.
[34]
The plaintiffs psychological injuries are fully detailed in the medical
reports.
§
One of the most notable features of the plaintiffs PTSD, which
the plaintiff developed as a result of the accident, is the fear of driving.
Since the accident, the plaintiff has driven only when she had no other option.
She confined her driving to within 10 minutes of where she lived and only to
obtain essentials. Even so, she finds driving slightly less stressful than
being a passenger, because she has to focus when she drives. The plaintiff
experiences flashbacks at times, with images of Mr. Al-Tamimi unconscious
and blood dripping from him; her predominant images, when they occur. In fact,
any connection to the accident and to the litigation for that matter, induces
flashbacks, as do newscasts featuring accidents. Accordingly, she prefers
transit. Nightmares, a common feature of PTSD, occur weekly and generally
involve catastrophic events.
§
As is well documented in the medical reports since the accident,
her mood has been low, her social life zero, with a strong resistance to
socializing or generally being around anyone. As described by Mr. Al-Tamimi,
occasionally, weeks may pass when she confines herself to bed, except to eat or
use the toilet. She has no energy. The plaintiff states that matters reached a
point where she found it painful to be alive. She has seen some improvement,
but testified she did not feel she would ever be the same person she was.
[35]
The family physician, Dr. K. Mitha, prescribed physiotherapy
shortly after the accident. The plaintiff continued for roughly six months,
with most of the improvement made in the first three months. The
physiotherapist gave her exercises to perform. She continues to use those,
particularly in the morning to assist in getting out of bed. Various modalities
were tried without any resolution.
[36]
Physicians, both treating and retained by the plaintiff, found she was
un-forthcoming in the giving histories, etc. The plaintiff explained she grew
up in a small community that was very religious. As mental health was something
that was not discussed, she found talking about something personal difficult
and stressful. On October 6, 2011, which was about the time she and her husband
made the decision to move to Qatar, the plaintiff discontinued her
psychological treatment sessions with Dr. C. Hill. As we shall see when we
turn to her family physicians testimony, she started taking antidepressants on
July 16, 2011, which was about three months after she had started her 11
sessions with Dr. Hill.
[37]
In addition, the plaintiff saw a psychiatrist, Dr. V. Hyrman, for
three sessions between November 2011 and January 2012. Dr. Hyrman
recommended to Dr. Mitha, the plaintiffs family physician, that she
consider giving the plaintiff an increased does the dose for Cipralex, to 120
mg. Dr. Mitha said she declined to implement that recommendation,
explaining she would not increase the dosage above 60 mg and would leave that for
Dr. Hyrman to prescribe.
[38]
Since the accident, the plaintiff has used a large number of
prescriptions, as follows:
DATE | EVENT/PRESCRIPTION |
December | Date |
January | Original |
January | Started |
February | Started |
May | Commences |
May | Started |
June | Gabapentin |
July | Started |
August | Cipralex |
August | Plaintiff |
October | Discontinues |
November | Cymbalta |
Nov. | Sees |
January | Started |
February | Started |
WORK AT VERATHON BETWEEN MARCH 1, 2014 AND AUGUST
23, 2013
[39]
[39] In March 2013, the plaintiff started to work at a company called
Verathon Medical Supplies. She found the position advertised on Craigs List.
She testified that she felt able to take on that position because the position
had stipulated light-duty manufacturing and she wanted to see if she could work
at that level. She described the position as very light-duty with assembling,
testing and the cleaning of laryngoscopes. The work required her to sit for
prolonged periods which she found difficult. Assembly involved repetitive
actions. She found it difficult to clean beneath her workspace because she
could not bear weight on her right knee or reach back under the table. When she
had to lift parts or move them around, she asked for help.
[40]
The plaintiff found her work did not go so well at Verathon. She
described three episodes at work which required first aid. The first of these
involved swelling in her hands and her left shoulder. She denied that the
swelling in her hands related to skin irritation that other employees had also
complained of although she granted that the remedial gloves the employer
distributed provided some relief. The last episode occurred when she was
checking quality control on an instrument. She did not have to disassemble the
instrument, but after an hour, she found the repetitive movements caused so
much pain in her shoulder that she sought the assistance of the first aid
attendant. She left early and did not return for two days. The plaintiff
testified that she discussed her problems with the head of human resources, Ms. Laura
Meyers, but did not feel the meeting went well and so she sought another
meeting with Ms. Linda Robertson, who was a senior human resources
representative at the company. A meeting with Ms. Robertson could not be
scheduled for a week, during which period the plaintiff testified that she
asked Ms. Robertson to include her in the next round of layoffs. She was
laid off in August 2013. The plaintiff testified in cross-examination that she
believed her lay off came about because she had asked for it to happen.
[41]
The plaintiff testified that her experience at Verathon had showed her
she was not able to work even at light-duty manufacturing and she gave up on
pursuing any such position in the future.
1
Ms. L. Meyers, HR Department
at Verathon
[42]
Ms. Meyers worked in the Human Resources Department at Verathon
throughout the time that the plaintiff worked there. She recalled that the plaintiff
was a fine employee.
[43]
As for the first aid matters that the plaintiff spoke of, Ms. Meyers
memory of events surrounding the plaintiffs first aid episodes was rather
poor, even with refreshment from some documents counsel for the plaintiff was
able to obtain. She did recall, however, that the plaintiff had requested a
meeting with Ms. Robertson as the plaintiff had said. In any case, Ms. Meyers
lacked any information that would confirm or contradict the plaintiffs testimony
that she had requested a meeting with Ms. Robertson. Documentation seems
to suggest that there was a request for a meeting and that there were first aid
reports filled out that likely exist, but cannot be located. Ms. Meyers
testified the plaintiff appeared to be relieved when she was laid off, but she
could not confirm or contradict the plaintiffs testimony that she had
requested the layoff, which might explain why she showed relief when laid off
as Ms. Meyers had recalled. In any case, Ms. Meyers testified that it
was a work shortage that had produced the layoff that occurred in August 2013.
Management saw the company was overstaffed so temporary employees, which is
what the plaintiff was, were the first to be laid off.
[44]
I find that more likely than not, the plaintiff did make a request that
she be laid off from Verathon when the next round of layoffs came forward, but
also that she would have been laid off at the same time in any event.
MR. AL-TAMIMI
[45]
Mr. Al-Tamimi testified he sees the plaintiff in pain most of the
time. He notices she cannot squat or kneel down much and he attempts to help
her. He testified she is depressed, prefers to be alone, lacks energy, and does
not enjoy the company of others. He said she sometimes she stays in bed for
days, getting up only to eat or to go to the washroom. That type of inactivity
happened monthly.
[46]
He recalled that before the accident, the plaintiff had stopped smoking,
a necessary step to prepare for the IVF program. She resumed smoking for a
while after the accident and has since quit again, in preparation for IVF
Program.
[47]
He stated the plaintiff had become an extremely anxious passenger. On
occasion she had tried to grab the steering wheel while he was driving. She has
tried to drive, but she does not feel comfortable driving. Before the accident,
he recalled that she was an excellent driver, drove with confidence, and was a
better driver than he was.
[48]
Mr. Al-Tamimi testified that in the first three months following
the accident, he had to do all of the housekeeping, and that he now he does
most of the cooking, laundry, and general cleaning, whereas before the
plaintiff performed most of those tasks. The house is not as clean as it used
to be.
[49]
When he convinces the plaintiff to go for a walk, about every six months,
she tires easily, has to stop to catch her breath, and complains of back pain.
She does not like to meet others on the street. In short, he finds his wife is
depressed all the time. He finds this very difficult to deal with. He testified
that although he loved his wife a great deal, at times, he had questioned the
future viability of their marriage. However, he wanted to maintain the
marriage.
[50]
He denied the plaintiff had any difficulties with driving or depression,
and said she was not socially isolated before the accident. The plaintiff
enjoyed social activities with friends and he recalled she took on the role of organizing
social activities at Kodak.
[51]
As for the parties move to Qatar and their future plans, they had
decided to move to Qatar in about August 2011. After his job at Bosch ended, he
started to look for work overseas. Although he did receive a job offer in Qatar
in 2012, for various reasons explained at trial, this did not materialize. In
the meantime, he found a position at Weldco-Beales Manufacturing, in Langley,
where he earned roughly $75,000 annually.
[52]
Meanwhile, Mr. Al-Tamimi continued to pursue employment in Qatar.
He explained he did not wish to leave Canada and that he had lived here for 17
years before he and the plaintiff decided to move.
[53]
Considering the testimony of the plaintiff and Mr. Al-Tamimi, it
appears that the following events factor into the decision to move to Qatar:
the fact the plaintiff was unable to work, the resulting financial loss and
stress; the high cost of living in Vancouver which necessitated two incomes;
the belief that they could not make financial progress if they were to remain
here; and a willingness to go where higher paying employment opportunities were
available for Mr. Al-Tamimi. Resentment felt over how they saw their case
was handled by the police and ICBC, and the abiding feelings of mistrust added
impetus but was a secondary factor. I find economic motivators played a chief
part in their decision.
[54]
Mr. Al-Tamimi relocated to Qatar, in February 2014. He now has
residency status which entitles him to free medical care. Initially, Mr. Al-Tamimi
earned $2,500 a month, but he then found another position that pays $11,000
monthly. He anticipated the plaintiffs residency status would be granted soon
after the trial.
[55]
As for their abandoned IVF program, he confirmed they wanted to try IVF
again, mindful that they are both older now and that the earlier the program is
started, the greater the chances for success. If they are unsuccessful, he
testified that they were definitely looking into adopting a child. He had
already done some research in that regard. He explained that having a family
was central to his cultural background and that he wanted nothing more than to
be a father and to give the plaintiff an opportunity to be a mother.
[56]
Both the plaintiff and Mr. Al-Tamimi testified that the culture in
Qatar is not like Saudi Arabia. Women can choose how they wish to dress, whether
traditional or in modern garb; and many women, both domestic and foreign, work
without restriction. Qatar has the highest per capita income in the world and
the infrastructure is very well-developed. The plaintiff and Mr. Al-Tamimi
feel comfortable there. I note Mr. Al-Tamimis testimony that while the
cost of living is very high, medical care is free, and his income is high. Mr. Al-Tamimi
testified that he took two trips to Qatar in 2012/2013, but the plaintiff did
not accompany him on those trips. However, as for the limited Qatar air travel
that the plaintiff has experienced, she testified that she has found it very
difficult. She feels very uncomfortable, cannot sleep, and has to move around a
lot. When connections are required, she requires assistance to move to the next
gate.
MEDICAL OPINIONS
[57]
Medical legal experts called by the plaintiff were:
1. Dr. M.
Adrian, a physiatrist;
2. Dr. K.
Mitha, family practitioner; and
3. Dr. H.
Mok, a psychiatrist.
[58]
Medical legal experts called by the defence were:
4. Dr. S.
Horlick, an orthopaedic surgeon; and
5. Dr. T.
Tomita, a psychiatrist.
[59]
The Court also heard from Ms. T. Berry, an occupational therapist
called by the plaintiff; Mr. R. Candor, an occupational therapist called
by the defence; and Ms. C. Clark, a labour economist, called by the
plaintiff.
1
Dr. M. Adrian, a physiatrist
[60]
I will turn first to the medical legal report and testimony of Dr. Adrian,
a physician for 32 years, because of the reports comprehensiveness and its
conformation with other accepted evidence on the plaintiffs physical injuries;
and because, though it is not without some shortcomings, it offers the broadest
medical legal view of the plaintiffs case particularly when combined with
the evidence of her family physician, whose testimony covered off the two years
following the accident.
[61]
Dr. Adrian first saw the plaintiff and wrote a report on October
17, 2014. He attended at trial for cross-examination.
[62]
He completed his residency in physical medicine and rehabilitation at
the University of British Columbia in 1998. He supplemented his training in
musculoskeletal and occupational medicine between 1999 and 2000 at the Mayo
Clinic in Rochester, Minnesota. In addition to his certification as a
psychiatrist through the Royal College of Physicians and Surgeons in Canada, he
completed the American Academy of Physical Medicine and Rehabilitation board
exam in 2000. He is a clinical associate at Vancouver General Hospital and at
G.F. Strong Rehabilitation Centre in Vancouver. He was qualified to express an
opinion on the assessment and management of musculoskeletal and
musculoskeletal-related neurologic disorders and on the rehabilitation of
injured persons with a view to improving and ultimately maximizing their
occupational and daily living functioning within their individual capacities.
[63]
Apart from headaches, the plaintiff had experienced pre-accident in
2004, a CT scan of the head showed no abnormality, Dr. Adrian did not note
any other prior condition relevant to the plaintiffs injuries.
[64]
[64] Referring to the post-accident clinical records of the family
physician, Dr. Mitha, Dr. Adrian noticed her observations of bruising
involving the right aspect of the plaintiffs body, including her buttocks,
lower abdomen, chest, left breast, and right shin, as well as symptoms
affecting the right knee. At p. 3 of his report, Dr. Adrian stated:
Initially, the most severe pain affected Ms. Sebaas
ribcage, associated with difficulty breathing. As she became more active with
rehabilitation, her right knee and right foot symptoms became more noticeable. She
had difficulty weightbearing involving her right knee and was provided
crutches. Reviewing the physical therapy notation dated February 15, 2011,
symptoms were noted involving the neck, lower back, hip and knee.
Ms. Sebaa experiences persistent, regularly occurring
and physically limiting pain involving her neck, left shoulder girdle, left
hand, lower back, right knee and right foot since the accident. She does not
recall injuries to these body parts since the accident that have worsened her
condition.
Ms. Sebaa began to develop
psychological and cognitive symptoms following the accident.
[65]
At p. 4, Dr. Adrian noted:
X-ray involving the left hand
dated January 17, 2011 showed a fracture through the distal aspect of the
middle phalanx of the right finger with angulation of the joint. Follow-up
x-ray dated February 2011 showed healing of the fracture. X-ray of the hand
dated February 2011 showed a step deformity involving the joint surface of the
distal joint of the ring finger.
[66]
Dr. Adrian explained a step deformity is a roughening of the joint
surface. The plaintiff showed the court her left hand. You can see the ring
finger angles to the plaintiffs right. Dr. Adrian also noted tenderness
localized to the joint near the left ring finger and joint stiffness with
reduced flexion compared to the right. Ligamentous testing demonstrates a
stable joint. Tendon testing shows no loss of integrity of the tendons.
CURRENT STATUS
[67]
The plaintiffs testimony largely conforms to Dr. Adrians summary
information on the plaintiffs current status and confirms the plaintiffs
testimony. He states the following at p. 4 of his report:
a) neck and upper
shoulder:
Ms. Sebaa experiences daily pain affecting her neck and
upper shoulder girdle. The intensity of the pain fluctuates depending on her
activities. The symptoms are triggered by activities that involve prolonged
sitting; [Dr. Adrian explained that by this he meant sustained];
prolonged awkward neck positioning; motion of the neck; prolonged or repetitive
reaching; and carrying. The symptoms disturb her sleep are noticeable first
thing in the morning. The symptoms do not radiate distally into her left arm.
b) radiated pain in upper extremity, right arm and hand:
Ms. Sebaas neck symptoms spread to her right upper
extremity. She experiences tingling involving her right arm, particularly her
hand and involving all of the digits. She experiences a sense of swelling
involving her hand, particularly in the morning.
c) headaches:
Ms. Sebaa experiences headaches, present most days of
the week that are triggered by neck pain. The headaches are located over the
left greater than right occipital area (upper neck region).
d) low back pain, triggers:
Ms. Sebaa experiences daily pain affecting her lower back.
The lower back pain symptoms fluctuate depending on her activities. The
symptoms are triggered by activities that involve prolonged sitting; prolonged
walking; bending from the waist; lifting; and carrying. The pain does not
disturb her sleep. The pain does not radiate.
e) left ring finger:
Ms. Sebaa experiences intermittent stiffness and pain
involving her left ring finger, over the middle and distal (tip) aspects. The
symptoms fluctuate and do not occur daily. The symptoms can be triggered by gripping
and holding.
f) right knee:
Ms. Sebaa experiences pain most days involving her
right knee, over the medial and anterior aspects. Over the area of the lower
kneecap and inner aspect of her knee, she reports pain and hypersensitivity to
light touch. The symptoms are aggravated by the contact of clothing and
attempts at shaving the area, kneeling and crouching. She also experiences
localized medial knee pain with walking, prolonged standing or kneeling. She
experiences periodic clicking that occurs but not always with pain. She has not
noted swelling. Infrequently, her knee buckles. She denies locking.
g) periodic pain in right foot:
Ms. Sebaa experiences periodic pain involving her right
foot, over the in step (medial arch). The symptoms can be triggered by
prolonged walking or prolonged standing.
h) mood and memory:
Ms. Sebaa indicates the accident has affected her mood,
memory, concentration and energy levels.
1
Daily living
[68]
As for activities of daily living, Ms. Sebaa told Dr. Adrian
she was independent in that regard. She was able to perform housework but performs
these activities at a slower than usual pace now, due to her injuries. She
further advised, conforming roughly to her testimony:
She spreads the housework activities over days as opposed to
performing them in one setting. She has difficulty with the standing, bending
and stooping required of vacuuming, bathroom cleaning and cooking. She avoids
lifting heavier grocery bags since the accident and when possible delegates
this to her husband. Since the accident, she is nervous when driving and when
possible avoids this activity.
Prior to the accident, Ms. Sebaa was active with yard work.
Following the accident, she discontinued yard work.
Ms. Sebaa socializes and
entertains less since the accident due to her injuries.
2
Dr. Adrians conclusions
[69]
In overview, Dr. Adrian summarized his diagnoses and causation as
follows at p. 8 of his report:
Based on my assessment of Ms. Sebaa and the specific
facts and assumptions [stated in his report], it is my opinion that Ms. Sebaa
suffered injuries to her neck, lower back, right knee, right foot, and the left
hand during the course of the accident resulting in the following diagnoses:
1. Mechanical
neck and lower back pain.
2. Fracture
left ring finger middle phalanx.
3. Soft
tissue and nerve pain right knee.
4.
Soft tissue pain right foot.
3
Discussion and Causation
[70]
At p. 8 of his report, Dr. Adrian wrote this regarding
discussion and causation:
Ms. Sebba was involved in a
head-on type collision on December 30, 2010. She recalls her body being jarred
during the course of the impact. She developed pain involving her left hand,
right knee, neck, lower back, ribcage, and right foot shortly following the
impact. Initially the most severe pain involved her rib cage. Over time, her
ribcage symptoms gradually resolved. She experiences persistent pain affecting
her neck, back, left hand, right knee and right foot. Objective physical
loading tests of the tissues of her neck, lower back, right knee, left ring
finger, and right foot during the physical examination reproduced her pain
symptoms. There was abnormal sensation involving the right knee in the
distribution of the intrapatellar branch of the saphenous nerve. These clinical
features are consistent with Ms. Sebaa suffering physical forces to the
tissues of her neck, lower back, left hand, right knee and right foot during
the course of the accident resulting in injury and the diagnoses described
above.
[71]
Dr. Adrian thought that the plaintiffs sensations of tingling,
numbness and a sense of swelling involving her right upper extremity likely
stemmed from the painful structures of her neck. He explained that referred
pain is a common phenomenon that can occur when pain is experienced at a site
distant from the source of injury. Although the exact mechanism is not clearly
understood, the pain transfers to that site; as in this case, not caused by any
nerve injury.
[72]
As for the plaintiffs right knee, he opined the plaintiffs symptoms
were multifactorial, triggered in party by activities that apply force to the
soft tissue injuries in the right knee. He noted at p. 3 of his report,
that an MRI of the right knee taken January 22, 2011 showed a grade 1 medial
collateral ligament sprain; and high signal within the medial patellar retinaculum
(joint capsule) over the medial aspect. There were findings of bony contusion
(bone bruise) involving the tibia, over the anterior and inner aspects. Dr. Adrian
explained that the collateral ligament, which crosses the knee and stabilizes
it and assists in squatting and standing, had no tears, but the injuries would
produce symptoms and make it difficult to squat, stand for extended periods,
and so on. When Dr. Adrian palpated the medial patellar facet under the
surface of the kneecap, he noted this caused the plaintiff pain. He also noted
superficial pain and an abnormal pain sensation to light touch over the
inferior patellar region and over the medial knee. Dr. Adrian opined that
the plaintiff likely suffered physical forces to her right knee in the accident
that injured the soft tissue structures producing chronic right knee soft
tissue pain.
[73]
The plaintiffs left shoulder girdle was higher than on the right,
consistent with the plaintiffs own observations. She had full range of motion
of the shoulder and shoulder girdles. Consistent with the plaintiffs
testimony, however, Dr. Adrian saw that elevating the left shoulder causes
pain that involves the base of her neck. Internal rotation was full to the mid
thoracic spine, which was comparable to the right side. Rotating against
resistance, the rotator cuff exhibited full power and was pain-free. Range of
motion for the elbows, wrists, and digits, was also full and pain-free.
[74]
With respect to the foot, he noticed tenderness present over the plantar
fascia.
.1
Dr. Adrians prognosis
[75]
Turning to the plaintiffs prognosis, Dr. Adrian opined that while
individuals generally experience improvement over time from mechanical spinal
pain, soft tissue pain, and nerve dysfunction, Some individuals
experience
persistent pain despite the passage of time. In my experience, individuals
suffering symptoms beyond two years from the injury date are unlikely to
experience further significant improvement (Trial Exhibit #1, p.11). On
cross-examination, Dr. Adrian granted the plaintiff may experience some
improved function.
[76]
As for her left hand, he opined that the plaintiff will probably
experience progressive pain and disability there.
[77]
On future functional capacity, he opined as follows: at p. 11:
Ms. Sebaa will probably continue to experience
difficulty performing activities that place physical forces onto the painful
and injured structures involving her neck, lower back, right knee, right foot
and left hand. Specifically, she will probably continue to experience
difficulty performing employment, recreational and household activities that
require prolonged sitting, standing or walking; crouching, kneeling or
squatting; prolonged or repetitive reaching; forceful or repetitive left hand
gripping; prolonged awkward spinal positioning; repetitive climbing stairs, and
jarring activities.
The above-listed physical
limitations are unlikely to resolve with time. In my opinion, Ms. Sebaa is
permanently partially disabled as a result of the injuries suffered in a motor
vehicle accident.
[78]
Dr. Adrian also thought it unlikely that further investigations
would alter current management. He thought, however, that given her reduced
activity level since the accident, that the plaintiff had probably become
relatively deconditioned and would benefit from instruction from a
kinesiologist on exercises that would not aggravate her condition; with a view
to optimize her level of general fitness. He cautioned, however, that exercise
would not cure her injuries.
[79]
To desensitize the experience of static nerve pain in her right knee, he
recommended sleep medication and orthotics for her right foot, which he thought
would prove helpful.
[80]
As for future vocational assistance, he noted that the plaintiff had
indicated to him that she hoped to return to the workforce in the future. In
her testimony, however, she told the court that she did not think she would be
able to return to work after her most recent experience at Verathon. In any
case, Dr. Adrian thought a vocational counsellor could assist in finding
suitable employment options corresponding with her injuries, experience and
physical limitations.
4
Dr. K. Mitha, a family physician
[81]
Dr. Mitha had been the plaintiffs family physician between June
2008 and mid-2012. She was seen initially by her colleague Dr. M. Look. Dr. Mitha
provided a report dated February 17, 2012, and testified. She first saw the
plaintiff on January 12, 2011. Still visible were the multiple contusions over
her body. The right side of her neck still had marks left by the seatbelt. The
right knee was bruised and swollen and range of motion extremely limited with
no flexion. The ring finger was painful at the joints at both the ends of the
finger and at the phalanx closest to the hand (the DIP and PIP
respectively) with some deformity at its end joints. The second and third
fingers were painful as well, but their mobility was improving. She was
referred to physiotherapy. An X-ray of her finger showed a hairline fracture of
the ring fingers middle phalanx. At her first visit with Dr. Mok, she had
been prescribed regular use of medication for inflammation, pain and sleep. The
plaintiff had discontinued OxyContin due to side effects. On her February 3,
2011 visit, the plaintiff was using Percocet for pain; anti-inflammatories were
reportedly ineffective for pain. She continued to have problems weight bearing
and complained of headaches on awakening. She complained of anxiety riding in a
car and of a fast heart rate, sweating, and palpitation. She was prescribed Clonazepam
for anxiety, further Percocet for pain, and Amitriptyline for sleep and
headaches.
[82]
On March 1, 2011, Dr. Mitha noted continuing swelling in the right
knee and gave a further referral for physiotherapy.
[83]
On March 29, 2011, the plaintiff complained of low mood, tearful
episodes and financial difficulties due to the loss of her job. She continued
to use pain and anti-anxiety medications. Physically, she had two episodes
since the accident of bilateral hand swelling, and pain distal to the wrist
that encompassed all the fingers and lasted two hours at a time. The plaintiff
provided Dr. Mitha with a list of her symptoms since the accident: ongoing
right leg and knee pain, getting worse, and which included a stabbing
sensation, instability and buckling; pain in the right hip and buttock; lower
back pain, aggravated by bending and turning; mid-back stiffness; sharp
localized upper back and left shoulder pain; grinding in the neck and numbness
and tingling in the left arm; occipital headaches lasting a few hours,
sometimes accompanied by paresthesia from the top of the head radiating down
the spine; sleep disturbance, nightmares, difficulty falling and staying
asleep; inability to drive a car since the accident and fear of riding in
vehicle, which caused anxiety and exhaustion.
[84]
Examination at that time showed limited range of motion in the neck, and
tenderness of the paraspinal muscles.
[85]
On a visit April 20, 2011, the plaintiffs complaints were focused on
the right wrist and hand swelling which were then occurring two to three times
a week, resolving after two to three hours, accompanied by skin changes. A bone
scan a week later showed multiple areas of arthropathy and inflammation.
[86]
On May 18, 2011, complaints focused on the plaintiffs left shoulder
pain, which was weak. She had been able to abduct it. Dr. Mitha noted the
left shoulder appeared to sit higher than the right side. X-rays and an
ultrasound were negative.
[87]
On June 23, 2011, Dr. Mitha found the plaintiff had reached a
plateau, with minimal change over the preceding two months and the plaintiff
elected to take a break from therapy and concentrate on her home exercises.
[88]
On June 11, 2011, Dr. Mitha noted the plaintiff had declined
assistance at home for housekeeping, as well as with home exercise programs.
She was continuing to attend physiotherapy. Discussed that day also was her
increasing depression, isolation, poor energy, trouble concentrating, and poor
self-esteem. Therapy sessions she had been attending made her feel overweight
and inadequate. Dr. Mitha noted she was seeing a counsellor for cognitive
behavioural therapy. Dr. Mitha prescribed Cipralex for increasing depression.
Visits on August 8, 2011; August 29, 2011; and October 6, 2011 to November 22,
2011, do not reflect any significant improvement. A new symptom on October 6,
2011, of the will pain on wrist flexion and supination was noted. That same
day, Mr. Al-Tamimi was present to discuss the plaintiffs post traumatic
stress and irritability. Mr. Al-Tamimi confirmed the plaintiff easily
startled while riding in a motor vehicle, which he found very distracting.
Cymbalta at 30 mg per day was prescribed. On November 17, 2011, the plaintiff
reported having difficulty coping with daily chores, a return of pain since
reducing Percocet, with the pain rated as between six to eight, on a scale of
10. Dr. Mitha increased Cymbalta to 60 mg per day and Gabapentin to 300 mg
three times a day.
[89]
The examination on November 22, 2011, does not reflect any positive
change. The plaintiff reported that her behaviour was causing a great deal of
marital strife and Mr. Al-Tamimi reported she was increasingly irritable
and distracted. Examination again revealed limited ranges of motion tenderness
and pain in the affected areas. The left shoulder was painful, but revealed a
full arc range of motion at that time. Dr. Mitha referred her to a
psychiatrist.
[90]
I will interpose a sidebar here with respect to that referral. According
to a consultation report prepared by the psychiatrist Dr. Mitha referred
the plaintiff to, Dr. V. Hyrman, he saw her in early December. According
to the history he took from the plaintiff, Cymbalta at 60 mg seemed to be
helping her. She told Dr. Hyrman she was beginning to sleep better and had
been a bit less anxious. She also expressed mixed feelings about counselling
sessions she had been having with Dr. Hill. On p. 1 of Dr. Hyrmans
consultation report, he stated, since she seems to be benefiting from
Cymbalta already I would encourage her to continue with that at the present
dose and perhaps if there is not sufficient response she might benefit from a
higher dose that is 120 mg per day. [Emphasis added.]
* * *
[91]
On February 27, 2012, the plaintiff returned for what was the final
visit: Dr. Mitha reports at pp. 6 – 7 as follows:
She continued to have left-sided chronic headaches with
daily exacerbation. The left finger pain was worse in cold weather, chronic
recurrent swelling, pain, and skin mottling of the right hand continued
unpredictably. She complained of right knee pain on the medial and inferior
aspect with hypersensitivity of the overlying skin. Left shoulder pain was
again unchanged and there was point tenderness of the right T11-12 region.
The right wrist showed minimal
swelling and skin changes, along with good range of motion. Left fourth finger
again, had a minor deformity with no pain on range of motion. Shoulder range of
motion was good, but continued to be uneven compared to the other side. Right
knee hypersensitivity persisted with medial joint line tenderness.
In summary, Post-traumatic
stress, anxiety, and myofascial pain were all still present following the motor
vehicle accident of December 30, 2010. Ms. Sebaa may have a fairly long
road for musculoskeletal rehabilitation as well as cognitive behavioural
therapy for her anxiety and post-traumatic stress. She should continue to be
followed with a psychiatrist or psychologist for her mental health. Ongoing
activation will continue to benefit Ms. Sebaas chronic pain, and should
continue to be encouraged.
[92]
Asked on cross-examination if the plaintiff could expect a good
likelihood of recovery for her mental health symptoms if she continued
treatment, Dr. Mitha answered that she was hopeful there would be continued
improvement, but qualified that with the length of the plaintiffs ongoing
illness, both mental and physical; she thought the likelihood diminished with
time. She added that we are always hopeful, so continue to prescribe
treatments that will aid in it. But she also opined that probability would be
low. She further opined, when asked if treatment significantly enhances the
likelihood of recovery, that people can be refractory to treatment
[be]
treated [consistently] and will still not respond.
5
Dr. H. Mok, a psychiatrist
[93]
Dr. Mok completed his medical training in 1997; certified in
psychiatry that same year. The Mayo Clinic Foundation granted a Fellowship in Consultation-Liaison
Psychiatry (that branch focuses on patients with medical problems). Dr. Mok
specializes in mood disorders and cross-cultural psychiatry. Since 1998, he has
been an instructor at UBC; and since 2014, a clinical professor. His resume
lists quite extensive research and publication in his field.
[94]
A premise of cross-cultural psychiatry is that systems of belief and
cultural attitudes towards the accessing of health care vary from culture to
culture. Its objective is to provide care in the patients language and
understanding of their cultural beliefs, so as to maximize the patients access
to medical care. He saw the plaintiff on October 15, 2015. She had flown in
from Qatar to complete a round of examinations by specialists retained by
plaintiffs counsel.
[95]
Dr. Mok noted that Dr. Mitha had tried the plaintiff on a
whole concoction of painkillers, without any significant relief, including
Oxycodone, Percocet, Flexeril, Amitriptyline, Clonazepam, Advil, Gabapentin,
and Voltaren. At p. 5 of his report, from his review of Dr. Mithas
clinical records, he saw she had started the plaintiff on the anti-depressant
Cipralex, increased to 20 mg once a day in August 2011. The plaintiff was still
complaining of lack of sleep, concentration, and motivation.
[96]
Based on a variety of standardized tests, clinical data, and some tests
he administered, he opined the plaintiffs depression fell into the severe
range.
[97]
Dr. Mok noted the clinical records of prescriptions for
anti-depression and anxiety medications, without relief despite increased
Percocet, Cymbalta increased to 60 mg, and Gabapentin to 300 mg t.i.d. I note
however that the plaintiff told Dr. Hyrman that Cymbalta had improved her
sleep and lessened her anxiety a bit. Inconsistent reporting like this can
complicate medical care. In any case, the plaintiff never returned to see Dr. Mitha
after her last visit, so the question of whether an increased dosage of
Cymbalta would have shown that much more benefit for sleep and anxiety cannot
be answered.
[98]
The plaintiff advised Dr. Mok she was not on pain medications or
muscle relaxants, explaining to him, I refuse to take any medications because
I have now given up on all my doctors and treaters had told me that they are
not going to do anything for me. I note, however, the plaintiff had to go off
medications for several months before she could resume the IVF program.
[99]
At pp. 6 and 7 of his report, after detailing his Diagnostic and
Statistical Manual of Mental Disorders (DSM-IV-TR) diagnoses, Dr. Mok
summarily opined:
[The plaintiff sustained] Chronic Pain Disorder associated with
psychological factors and a general medical condition[.]
Major Depressive Disorder, with anxious features, chronic,
current severity = severe.
Post-Traumatic Stress Disorder (chronic) [as a direct result
of the motor vehicle accident of December 30, 2010].
As a result of her physical and
emotional injuries, she has suffered significant impairment in vocational,
social, home, and domestic domains. She has also expressed to me that she has
given up on the idea of getting pregnant because of her current physical &
emotional health.
[100]
As for treatment, he states:
She would definitely benefit from
being reviewed by a specialist in physical medicine and rehabilitation with
regard to further pain management options. She doesnt seem to have the insight
of the inter-relationship between chronic pain, depression, anxiety, insomnia,
and vice versa.
[101]
On her prognosis, he further opined:
This lady also has severe levels
of currently untreated chronic major depressive disorder with co-morbid post-traumatic
stress disorder. Due to her upbringing as well as the personal stigma and shame
of being diagnosed with an emotional illness, she has expressed a great deal of
reluctance to go through with any further psychological or
psychopharmacological treatments. In this regard, given the co-morbidity of her
diagnoses on Axis I [ i.e. Chronic Pain Disorder associated with psychological
factors and a general medical condition, Major Depressive Disorder, with
anxious features, chronic Post-Traumatic Stress Disorder], chronicity of her
symptoms, and treatment response to date, I would rate that the prognosis for
full recovery from her Axis I conditions as poor.
[102] Dr. Mok
testified that the plaintiffs partial inaccessibility on interview required
him to drag everything out from her. He thought she still had active
emotional and psychiatric symptoms which also acted as barrier. He felt she was
very apprehensive, traumatized about the whole event, but was polite and tried
to do her best. In addition, Dr. Mok commented the plaintiff had seen the
psychologist, Dr. Hill, who treated the plaintiff for several months, yet she
also had found the plaintiff difficult to access and made no progress.
[103] The
plaintiff advised Dr. Mok she was apprehensive about coming here today,
forcing myself to relive the motor vehicle accident again and again. I would
rather not talk or think about it again. I just want to be left alone. I dont
want to be answering the phones or any email, and I dont want to explain to
you how I feel because I am a fiercely private person (at pp. 4 – 5).
[104] At trial,
the plaintiff did not present as inaccessible or apprehensive, as seems to have
been the case when interviewed or treated by Dr. Mok and Dr. Mitha. Dr. Mok
agreed on cross-examination that this could have been due to the stress of the
appointment, as the plaintiff had testified. He further agreed the
questionnaires that she completed were based on subjective report, and that
assuming the plaintiff had been working, (as in fact she had been at Verathon)
and, depending on her ability to cope with work, the rating for depression
would have been significantly lower than what he had assessed. Dr. Mok
also agreed that the current litigation was a stress factor in the plaintiffs
depression.
[105] The
defendant submitted Dr. Mok was not a reliable witness. He pointed out
that while under cross-examination, he had looked once or twice to the
plaintiffs counsel, as if for assistance. Counsel submitted he was there to
assist the court not the plaintiff. I accept counsels concern but cannot draw
an inference because the observation passed my notice at the immediate time. The
defendant also criticized Dr. Mok for shredding the notes that he took
when he interviewed the plaintiff. He explained this was his standard practice
on medical legal matters, although not in the case of handwritten notes taken
in the hospital. The defendant complains Dr. Moks actions deprived
counsel of the opportunity to cross-examine him based on the notes he took of
the plaintiffs history. I agree that notes physicians take for medical legal
purposes generally should not be shredded or destroyed in any fashion after the
interview. Some physicians dictate their history as they conduct the interview.
In any case, the notes should be kept until the trial has concluded. As it is,
the defendant was able to cross-examine Dr. Mok effectively.
[106] Dr. Moks
prognosis may be a controvertible issue, but his diagnosis, in my view, stands
almost incontrovertibly and accords substantially with the medical history,
with credible witness testimony, and other accepted medical evidence.
[107] I will
turn to the ultimate prognosis further on in these reasons; but in that regard
whether or not fully accepted, Dr. Moks opinion warrants considerable
weight.
6
Dr. S. Horlick, an orthopaedic surgeon
[108]
Dr. Horlick, an orthopedic surgeon, examined the plaintiff on
December 20, 2011, and prepared a report of that same date. Since 2003, he has
been a Clinical Assistant Professor at the UBC Department of Orthopaedics. He
has been a physician since 1987. He has been a member of the College of
Physicians and Surgeons of British Columbia, since July 1993; and of The Royal
College of Physicians and Surgeons of Canada, since November 1993. At p. 5
of his report, after noting that the plaintiff continued to have issues with many
of the same musculoskeletal problems she had been experiencing since the
accident, Dr. Horlick went on to summarize:
However, her physical examination is devoid of any
significant structural abnormality with respect to her cervical spine, her
right and left shoulders, wrists, left hand, right hip, right knee and right
ankle. [I note this examination accords with Dr. Adrians findings on
examination] I cannot find any obvious disruption of ligament or major
musculoskeletal structure in any of these areas and as such I am not clear as
to why she continues to have such significant ongoing discomfort in most of
these areas. As such, I believe she has a diagnosis more in keeping with a
chronic regional pain disorder and/or associated reflex sympathetic dystrophy-type
pathology.
The obliquity of her left shoulder is not secondary to a
major structural abnormality; but rather is more of a maladaptive response to
chronic myofascial pain in this region. I do not believe she has a major
structural abnormality in her left shoulder region or cervical area.
[Emphasis added.]
[109] For
treatment, Dr. Horlick recommended assessment by a pain medicine
specialist, discontinuance of narcotic medication and Cyclobenzaprine, and use
of more appropriate medication for analgesic and anti-inflammatory purposes. He
thought that this and other non-pharmaceutical pain treating modalities would
be beneficial to the plaintiff. He also thought she need[ed] a reconditioning-type
protocol best coordinated or managed by a physiatrist (at p. 5).
[110] As for
prognosis, he opined (at p. 6) that the plaintiff had not reached her
maximum therapeutic potential and [had] significant room for improvement. He
did not believe any of her complaints would result in long-term progressive
impairment or major disability and he thought her potential for re-entering
the workforce, particularly as an electrical technician, [was] high given the
physical requirements of this type of vocation as I understand it. He also
recommended regular exercise which he thought would also provide both physical
and psychological benefits.
[111] On
cross-examination, Dr. Horlick confirmed that when he wrote his report he
did not have any medical documentation past April 20, 2011, except for Dr. Mithas
report completed November 22, 2011. He was unaware of developments and of the
psychological symptoms that had become so pronounced. He deferred to
psychiatric opinion on those symptoms and their implications for the
plaintiffs prognosis and level of function. He clarified, as well, that he had
based his opinion and treatment recommendations on the plaintiffs physical
examination and physical injuries, and they did not encompass the consequences
of the plaintiffs pain or PTSD.
[112] On the
question of whether the plaintiff was likely to return to the workforce, he
acknowledged that he did not know the details of the plaintiffs work or the
demands it imposed on her. Accordingly, he granted that he lacked sufficient
information to opine on that question.
7
Dr. T. Tomita, a psychiatrist
[113] Dr. Tomita
has been a physician since 1995. He has extensive clinical experience in
psychiatry and serves as a Clinical Assistant Professor, in the Department of
Psychiatry at UBC.
[114] He saw the
plaintiff roughly one year after the accident, January 21, 2012, for 2 hours
and 25 minutes. The defendant submitted his February 14, 2012 report based on
that clinical interview and the medical record. The plaintiff decided not to
require Dr. Tomita for cross-examination. A party is not required to
cross-examine a witness, particularly where they have not challenged their
credibility. The plaintiff did not challenge Dr. Tomitas credibility. I
see no reason to remark on the plaintiffs election not to cross-examine Dr. Tomita:
Palmer v. Goodall, (1991), 53 B.C.L.R. (2d) 44 (C.A.).
[115] Dr. Tomita
opined the accident had caused PTSD and major depression. At the time of his
January 31, 2012 interview, he thought the plaintiff continued to experience PTSD
symptoms and major depression symptoms of moderate severity. He noted as well
at p. 4, the plaintiff had failed to respond to cognitive behavioural
therapy conducted by Dr. Hill and that following use of Cymbalta for three
months, her sleep had improved.
[116]
On the plaintiff’s receptivity to health treatment, Dr. Tomita
stated at p. 4 of his report:
Ms. Sebaas attitude and
receptivity to mental health treatment appear to be an obstacle for her
receiving a better response from psychological and psychiatric interventions. [He
thought] this attitude [was] cultural in origin and Ms. Sebaa [is] able to
reflect on the fact that she finds the notion of requiring mental health care
difficult to accept. As she frames it, the present plan to move to Qatar is at
least, in part, motivated by the fact that she believes removing herself from
the place in which the accident and perceived injustice occurred to be part of
the cure for her emotional and psychological woes.
[117] Nonetheless,
Dr. Tomita concluded the plaintiff remains treatable and continued to
require psychiatric and psychological treatment.
[118] As for her
prognosis, he thought it fair, noting (at p. 5) that the plaintiff has
had the benefit of relatively early psychological intervention and had started
psychiatric treatment, presumably referring to her sessions started with Dr. Hyrman.
He noted as well (at p. 5) that she had a partial response to Cymbalta,
which he stated "could be further optimized in terms of dosage or perhaps
an alternative antidepressant medication if further improvement was not
forthcoming from Cymbalta.
[119] Other
positive prognostic factors he noted included: absence of pre-existing
psychiatric disorder or psychological conditions; absence of substance abuse;
and a history of being able to, manage potentially stressful situations such
as the relocation from Hungary to Canada in an adaptive way without
experiencing any marked psychological upset or distress (at p. 5).
[120]
Negative prognostic factors included the fact that the plaintiff had remained
symptomatic since the accident
[for] over two years and by definition has
chronic depressive symptoms." Dr. Tomita further commented at
p. 5:
The longer such symptoms are
present, the less likely full response to treatment will occur and, therefore,
the worse the prognosis will be. I would be concerned if Ms. Sebaa
relocated to Qatar and decided to stop all mental health treatment. Although
there remains a small possibility of spontaneous recovery, the more likely
course will be continuation of psychiatric symptoms without further treatment.
[121] Dr. Tomita
also noted additional stressors had affected the plaintiff, noting in
particular, plans for IVF treatment having ended due to her injuries and financial
stressors.
[122]
On the subject of the impact of the plaintiff’s psychiatric injuries on
her work functions, he thought this was less clear. He opined at p. 6 of
his report:
[T]he lack of opportunity to
find work is an additional consideration that is probably decreasing [the
plaintiffs] motivation to once again searching for work. The other factor is a
decrease in her work capacity related to her psychiatric injuries and symptoms
including low energy, low motivation, negative thinking, anxiety and fatigue,
which would make both searching for work and starting work difficult. The
symptoms might not preclude part-time work, but would very likely prevent a
return to any type of full-time work at present. [Emphasis added.]
[123] The
plaintiff submits that the passage of time and the persistence of the symptoms
for three years since she last saw him had weakened his prognosis of fair and
that Dr. Moks prognosis ought to be preferred of that of Dr. Tomita.
DAMAGES
ASSESSMENT
1
Damages claimed
[124]
The damages, or their range, proposed by the parties are:
Type of Damages | Plaintiff | Defendant | ||
From | To | From | To | |
Non-pecuniary damages | $200,000 | $200,000 | $45,000 | $56,000 |
Loss | 50,000 | 50,000 | – | – |
Past | 130,000 | 130,000 | 39,000 | |
Loss | 700,000 | 700,000 | – | 70,000 |
Cost | 10,000 | 10,000 | 10,775 | 15,575 |
Past | 4,667 | 4,667 | 3,258 | 3,258 |
TOTALS | $1,094,667 | $1,094,667 | $59,033 | $183,833 |
2 Non-pecuniary
damages
[125] There is
no doubt the motor vehicle accident significantly impacted almost all dimensions
of the plaintiffs life: Stapley v. Hejslet, 2006 BCCA 34. The impact
was violent; the experience a frightening one for the plaintiff; and her
initial injuries intensely felt and functionally limiting.
[126] I find the
plaintiff has developed a chronic pain disorder with both psychological and
physical workings. The plaintiffs descriptions of her physical symptoms,
functional limitations, and of her psychological response, including PTSD,
depression and anxiety, and their effects on her activities of daily living are
credible. Clinical examinations do not pinpoint any clear physiological remnant
of the original injuries that are producing her pain. The plaintiffs condition
accords well with the psychiatric and physiatrist diagnoses and the diagnostic
criteria for a pain disorder as stated in the DSM-IV-TR.
[127] In
overview, the plaintiff, now 38, 33 at the time of the accident, characterizes
her life as one of constant daily pain and seriously debilitating anxiety and
depression, which have not abated since the accident. She points to fluctuating
but always presents daily pain in her neck, left shoulder, left hand, right
knee and right foot; to excruciating headache, and pain-disturbed sleep. She
grants she has good days and bad days, but finds pain always present. She has
become socially isolated. Sometimes, she spends several days in pain. She
identified her depression as a major contributing factor in the decision she
and her husband made to leave Canada. The accident suspended the plans she and
her husband had for having a family through IVF.
[128] The
plaintiff contends the prognoses indicate that, for the remainder of her life,
she is likely to experience debilitating symptoms, both physical and
psychological.
[129] The
defendant reminded the court of the principal stated in Price v. Kostryba
(1982), 70 B.C.L.R. 397 (S.C.), that where soft tissue injuries are prolonged
beyond the expected, the couirt must carefully scrutinize the claim. The
defendant points out that Dr. Horlick, called by the defendant and Dr. Adrian,
called by the plaintiff, who saw her, respectively, in May 2014 and early 2012,
found no structural abnormalities that would explain her continuing symptoms of
pain
[130] The
defendant stresses the plaintiff has not sought any medical attention for her
injuries since October 2012; in fact, she was able to return to work in March
2013. In short, the defendant submits that absent objective signs, the court
must carefully scrutinize the claim. In this same vein, the defendant asked the
court to consider the overall pattern of behaviour exhibited in this case:
after an accident that sees the claimant discontinue treatment within about a
year of the accident; quits medications within roughly 17 months; stops seeking
medical advice within 22 months; and returns to work within 27 months; given
such as pattern, would they not have good reason to conclude such a person had
substantially recovered by the time they had returned to work? The defendant
points as well to the contradiction inherent in the plaintiffs statement that
while she has not experienced any positive change in her symptoms despite
treatment, she intends to seek further treatment after she settles in Qatar.
[131]
The defendant argued that the principle of mitigation applies in this
case. Ross J. restated the basic principles for mitigation in Abdalle v.
British Columbia (Public Safety and Solicitor General), 2012 BCSC 128 [Abdalle].
That case, in some aspects, resembles this one. She summarized the basic principles
related to mitigation as follows at paras. 61 – 63:
[61] The
plaintiff in a personal injury action has a positive duty to mitigate. A
plaintiff has an obligation to take all reasonable measures to reduce his or
her damages, including undergoing treatment to alleviate or cure injuries, see Danicek
v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111 at para. 234.
[62] Once
the plaintiff has proved the defendants liability for his or her injuries, the
defendant must prove that the plaintiff acted unreasonably and that reasonable
conduct would have reduced or eliminated the loss. Whether the plaintiff acted
reasonably is a factual question and it involves a consideration of all of the
circumstances, see Gilbert v. Bottle, 2011 BCSC 1389, at para. 202.
[63] The defendant bears the
onus of proving that the plaintiff could thereby have avoided some part of the
loss, see Janiak v. Ippolito, [1985] 1 S.C.R. 146 [Janiak]. In
the context of an allegation that the plaintiff failed to mitigate his losses
because he failed to seek or follow specific medical care, the question of
whether the plaintiff was reasonable in refusing treatment is a finding to be
made taking into account the degree of risk from the treatment, the gravity of
the consequences for refusing it and the potential benefit to be derived from
the treatment, see Janiak at pp. 162-163.
[132]
Ross J. mentioned the then recent decision of Cassells v. Ladolcetta,
2012 BCCA 27, where Lowry J., speaking for the Court at para. 26 explained
the proper analysis entailed in determining whether a plaintiff has failed to
mitigate their damages.
[26] I agree that if, by
virtue of the injury sustained in an accident, a plaintiff is unable to make a
reasonable decision about treatment, the plaintiff is in no different position
with respect to mitigating the loss suffered than would be the case if, for
other reasons unrelated to the accident, the plaintiffs capacity to make
reasonable decisions about treatment was lacking. But I cannot accept that
means the law prescribes a subjective test, modified or otherwise. Janiak
is clear; the test is objective. I consider that if a plaintiff had the
capacity to make the decision about treatment it is said ought to have been
made, and the advice was sound, the mitigation question in each instance must
be what would be expected of a reasonable person in the circumstances having
regard for the plaintiffs medical condition at the material time and the
advice given concerning treatment. If, through no fault of his own, the
plaintiff did not have the capacity to make the decision, or the advice was not
sound, the question would not arise.
[133] The facts
in Abdalle required Ross J. to turn her mind to the challenging question
of whether pre-existing cultural or religious beliefs could constitute a
reasonable basis for a refusal of medical treatment at paras. 75 – 79. So
far as I know, this question has not been decided in this jurisdiction,
although, as Ross J. noted, U.S. cases have addressed it. There, the test is a
more subjective one. Academics here have analyzed the question and seem to
support the view that culture and religious beliefs in some circumstances could
excuse a failure to pursue an otherwise reasonable objective treatment option.
In any case, Ross J. put the matter aside because the evidence in Abdalle
did not convince her that the reasons for the plaintiffs refusal were
religious or cultural.
[134] For
different reasons, I reach the same dead end. First, the defendant did not put
squarely to the plaintiff her duty to mitigate in conjunction with her failure
to continue treatment with Cymbalta. Second, the parties did not argue the
question of whether cultural and religious grounds could excuse the plaintiffs
failure to pursue recommended treatment, i.e., Cymbalta, which reportedly had
proved to be somewhat efficacious for sleep and anxiety in the limited time
she had tried it.
[135] Here,
other factors influenced the plaintiff to go off all medication. They left her
feeling in a fog. She had to go off medications for six months before she got
recommence the IVFs protocol bearing in mind the plaintiff and her husband
had expected they would be in Qatar, where they planned to resume IVF, much
earlier than turned out. Abstaining from all medications to clear the way for
IVF would be a reasonable excuse, and arguably constitutes a form of mitigation.
As for not being unable to cover the cost of Cymbalta, the plaintiff did not
pursue other options to cover the cost.
[136] I note in
passing that what testimony the court did hear of religious and cultural
influences which theoretically might have inhibited the plaintiffs pursuit of
recommended medical treatment, left too small a stepping stone on which to take
the next logical step of deciding if it would excuse the pursuit of recommended
counselling. The plaintiff finds it very difficult to discuss her emotions and
her mental state. Many normal individuals are intensively private about their
private life and do not like to talk about it.
[137] I find the
plaintiff wanted to get better and was not malingering. Unfortunately, she has
not benefited from treatment thus far and her prognosis is guarded; although, I
find, not as unpromising as the plaintiff sees it. Although I do not find the
plaintiff is likely to return fully to her previous level of functioning,
mental health, employment and social engagement, there is a realistic
possibility she will improve past the point she is now at.
[138] Finally,
on the question of mitigation, although I cannot find that to date the
defendant has failed to take reasonable steps to mitigate her injuries, this
does not mean the duty is spent by that finding. The duty extends to future
conduct. I find the plaintiff obtained some benefit from use of Cymbalta. I
further find a carefully introduced pharmaceutical program initiated after she
completes her IVF program and pregnancy, should that occur, could bring further
benefit. The evidence showed spiritual growth and involvement in a healthy
religious community can improve an individuals mental health and sense of
well-being. Religion in Qatar is quite free compared to a number of other Middle
Eastern countries. The plaintiff can seek out that community as there is a
Catholic community there.
[139] On the
other side of predictions, the pessimistic prognoses and the realistic
possibility the plaintiff will not improve that also deserve weight.
.1
Non-pecuniary awards in comparable
cases
Plaintiffs cases
[140] The
plaintiff relied in the following cases for non-pecuniary damages: Santi v.
Pacific National Exhibition, 2000 BCSC 716; Felix v. Hearne, 2011
BCSC 1236 [Felix]; Zawadski v. Calimoso, 2011 BCSC 45 [Zawadski];
Cantin v. Petersen, 2012 BCSC 549 [Cantin]; and Alden v.
Spooner, 2002 BCCA 592 [Alden].
[141]
In Felix at para. 47, Mr. Justice Grist awarded the 44-year-old
plaintiff self-employed as a Verbatim reporter, and with twin daughters to care
for, $200,000 to reflect:
[47]
The combined effects
of residual physical injuries, specifically the neck and back pain and
associated headaches, loss of function in her left wrist, and injury to her
left shoulder and ankle, along with the pervasive emotional disorder resulting
from the effects of her injuries and the trauma of the collision, have been
devastating to Ms. Felixs personal and vocational life. She has lost much
of her ability to be self-reliant and to participate in many of the activities
that have been the foundation of her social life. The injuries are now assessed
as chronic and I think she will continue to struggle with the depression and
emotional upset that has marked the six years subsequent to her injuries.
[142] Grist J.
had the opinion of Dr. Robinson, a neurologist and specialist in headache
disorders, who opined that the plaintiff’s constant headaches and neck and back
pain would remain unchanged in future, continue to limit her activities and
challenge any return to work. She also suffered from continuous tinnitus.
[143] As for
future wage loss, he found that her earning ability had been considerably
diminished.
[144] In Zawadski,
the plaintiff was 44 years of age. He was a pedestrian struck by a car that
left him with a constellation of injuries, including soft tissue injuries, a
fractured elbow, back pain, overwhelming evidence he had suffered from
significant mood disorders because of the accident depression, and temper. He
became unkempt and unshaven, and his home deteriorated. He began to drink
heavily; to the extent certain liver enzyme levels were extremely elevated.
Justice Voith also found cognitive difficulties he was experiencing were caused
by pain, a sleep disorder, depression, anxiety, and alcohol abuse. As a result
of the accident, he could no longer continue to work as an automotive
technician. Before accounting for mitigation, he awarded the plaintiff $180,000
for non-pecuniary damages.
[145] In Cantin,
Madam Justice Bruce awarded the plaintiff $150,000 in non-pecuniary damages,
$155,000 in 2015, for various soft tissue injuries that led to chronic pain,
cervicogenic headaches, depression and anxiety. She became almost totally
withdrawn socially. No organic causes for her pain and mobility difficulties
could be found. She continued to experience extreme pain in her upper and lower
back as well as debilitating headaches. Bruce J. found that the accident had
led to the development of serious chronic pain in the plaintiff’s upper and
lower spine, hips and legs; and despite many types of therapy, continued to
experience serious pain and a drastic reduction in her functional mobility for
almost eight years since the accident. Ms. Cantin
also lost the ability
to work in a competitive labour market;
her relationship with family members
deteriorated substantially as a result of her constant pain and mental
distress (para. 45). She also noted she had been unable to achieve
restful sleep and had suffered a cognitive decline in memory. She had become a
social recluse. Her prognosis for any level of recovery [was] extremely guarded
(para. 45). Due to the plaintiff’s pre-existent condition, she awarded
$150,000 in general damages for pain and suffering (para. 46).
[146] In Alden,
the jury awarded the 17-year-old plaintiff $200,000 for non-pecuniary damages.
The plaintiff developed chronic pain syndrome and became seriously depressed.
The Court of Appeal did not did not interfere with the jury’s $200,000 award,
which it characterised as lying at the high end. Adjusted for inflation, in
2015, the equivalent would equal $255,000.
Defendants cases
[147] The defendant
relies on Guitierrez v. Covvey, 2015 BCSC 369 [Guitierrez]; Lourenco
v. Pham, 2013 BCSC 2090 [Lourenco]; Badyal v. Sidhu, 2006
BCSC 1877 [Badyal]; Niloufari v. Coumont, 2008 BCSC 815 [Niloufari];
and Janiak v. Ippolito, [1985] 1 S.C.R. 146.
[148] In Guitierrez,
the 43-year-old plaintiff was struck down in a crosswalk. She worked as a
second cook for a bread and pastry company. She was able to return to work, but
found it very hard and could not perform all of her usual tasks as before. At
trial, she worked reduced hours. She became socially withdrawn and her husband
had to perform more homemaking duties than before. Her soft tissue injuries
lingered. Madam Justice Loo awarded $75,000 for non-pecuniary damages.
[149] In Lourenco,
another pedestrian, a fit and active 22-year-old woman, was struck in an
intersection. Major injuries included headaches, neck and back pain: shoulders
to upper and mid back. She also suffered PTSD symptoms. At trial, 3½ years later, she continued
to experience pain in her neck and upper back, despite a physiotherapy and
active rehabilitation program. She gave up snowboarding. Gropper J. awarded
$50,000 for non-pecuniary damages.
[150] In Badyal,
the plaintiff suffered depression and chronic pain disorder. At the time of the
accident, she was in her last year of a Fine Arts diploma and intending to
attend university to obtain a teaching certificate. In addition to her soft tissue
pain, she developed anxiety and poor sleeping patterns. She felt it was taking
too long for her to heal and that she was falling into depression. She suffered
headaches that Advil did not help. Her hip continued to spasm and lock at
times; and at times, interfered with her activities and required her to rest
for a day. She avoided going out with friends when she did not feel well, and
avoided housework and shopping. She tired quickly and had to rest. Gropper J.
found that the plaintiff’s depression had resulted in chronic pain that was not
exaggerated and that resolution of pain from her injuries would not occur for
some time and not until her depression had resolved. Gropper J. awarded $75,000
for non-pecuniary damages.
[151] In Niloufari,
the plaintiff was awarded $70,000 in non-pecuniary damages. At trial, two years
past the accident, the court found that the plaintiff had suffered moderate
strains to his neck and back that had caused substantial pain and suffering
over the two years and several months since it occurred. Mr. Justice Rice
also found the injuries had disabled him from any activities, including work,
and that there was little hint of improvement at the time of trial. He was
awarded $70,000 in non-pecuniary damages. It would be closer to $80,000 in 2015
dollars.
[152] Considering
the accepted evidence in this case; prognoses that are pessimistic, the
unlikelihood she will ever fully recover; but also the realistic possibility
that her symptoms and functioning may improve compared to where she is now; and
considering awards in previous cases, I award the plaintiff $180,000 for
non-pecuniary damages.
3 Loss
of past earning capacity
.1
Assessment principles
[153] The
question of whether a past event occurred is determinable based on the balance
of probabilities. But what would have happened in the past but for the injury
is not any more knowable than what will happen in the future. Therefore, the
likelihoods of both future events and hypothetical past are decided based first
on deciding whether there was (for past events) or is (for future events) a
real possibility. Then the judge must determine the actual likelihood of its
occurring: Smith v. Knudsen, [2004] B.C.J. 2509 (B.C.C.A), at paras. 28
– 29.
[154] The award
for wages lost before trial is for the loss of the value of any work the
plaintiff would have done but for the accident. This can be measured in a
variety of ways. In some clear cases, actual wages lost can be calculated. In
some cases, an opportunity to take a higher paying position has been lost. In
some cases, the plaintiffs former position for whatever reasons no longer
available to them irrespective of their injuries, but their injuries have
limited the number of job opportunities that formerly would have been within
their capacity. The court may have to consider the economy, job availability
and any other evidence relevant to measuring what the plaintiff has lost.
[155] The
plaintiff submits for that 3.25 years of loss of earning capacity, based on
average earnings of $40,000 annually, she is entitled to an award for past loss
of earning capacity of $130,000 gross. This takes into account earnings at
Verathon in 2013 of $18,362.
[156] The
plaintiffs supervisor at Schlumberger, Dan Mufford, testified that the plaintiff
was not designated a permanent employee and only had another 3 to 4 months
work available to her at the time of the accident. The plaintiff testified that
she could have found other employment. She said she knew of other workers from
Kodak who had found positions at the Ballard, which was one of the options
available to her when she decided instead to take a position at Schlumberger.
[157] The defendant
points out that the plaintiff did not find work in a similar position until
March 2013, and that she was laid off from that position due to a shortage of
work in late August 2013.
[158] The
defendant conceded the plaintiff could not continue to work in the near
aftermath of the accident. The defendant relies on the opinions of Dr. Horlick
that by early 2012 the plaintiff was capable of working and of Dr. Tomita
that the plaintiff had a fair prognosis for recovery and was capable of at
least part-time work. The defendant grants the plaintiffs injuries presumably
had some effect in her ability to work until March 2013. However, the defendant
submits the plaintiff likely would have been out of work irrespective of the
accident and that as such the loss has to be assessed not calculated.
[159] The
defendant submits the plaintiff was off work December 30, 2010 until March 1,
2013, 26 months, earned $36,000 annually plus benefits, and that her gross loss
is $78,000. The defendant further submits that the gross amount should be
reduced by 50% to reflect labour market conditions and the fact the plaintiff
had spent a year and a half looking for employment she had at the time of the
accident.
[160] The
difficulty with the defendants assessment is its failure to give due weight to
the nature and extent of the plaintiffs pain and disability, both physical and
mental, which I find prevented her from even part-time employment. It also
fails to make allowance for the fact there was a realistic possibility she
could have found employment outside light manufacturing, but for her injuries,
even if just at minimum wage. The plaintiff and her husband required the income
and, in my view, there is a realistic possibility she would have sought
alternative employment. The defendants assessment, and the factors relied on,
is not without merit, however, and I cannot endorse the plaintiffs assessment,
which I think fails to recognize all the factors at play at the material time.
For past loss of earning capacity, I award the plaintiff $80,000 gross.
4
Loss of future earning capacity
[161]
In Jorgenson v. Coonce, 2013 BCSC 158 at paras. 107 – 109, Justice
Baird comprehensively summarized current appellate cases on the subject of loss
of future earning capacity:
[107] In
Rosvold v. Dunlop, 2001 BCCA 1, [2001] B.C.J. No. 4, the Court of
Appeal summarized the approach that a trial judge should take in assessing
damages for loss of income earning capacity:
[8] The most basic of those
principles is that a plaintiff is entitled to be put into the position he would
have been in but for the accident so far as money can do that. An award for
loss of earning capacity is based on the recognition that a plaintiff’s
capacity to earn income is an asset which has been taken away: Andrews v.
Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Parypa v. Wickware (1999),
65 B.C.L.R. (3d) 155 (C.A.). Where a plaintiff’s permanent injury limits him in
his capacity to perform certain activities and consequently impairs his income
earning capacity, he is entitled to compensation. What is being compensated is
not lost projected future earnings but the loss or impairment of earning
capacity as a capital asset. In some cases, projections from past earnings may
be a useful factor to consider in valuing the loss but past earnings are not
the only factor to consider.
[9] Because damage awards
are made as lump sums, an award for loss of future earning capacity must deal
to some extent with the unknowable. The standard of proof to be applied when
evaluating hypothetical events that may affect an award is simple probability,
not the balance of probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458.
Possibilities and probabilities, chances, opportunities, and risks must all be
considered, so long as they are a real and substantial possibility and not mere
speculation. These possibilities are to be given weight according to the
percentage chance they would have happened or will happen.
[10] The trial judge’s task is
to assess the loss on a judgmental basis, taking into consideration all the
relevant factors arising from the evidence: Mazzuca v. Alexakis, [1994]
B.C.J. No. 2128 (S.C.) at para. 121, aff’d [1997] B.C.J. No. 2178
(C.A.). Guidance as to what factors may be relevant can be found in Parypa
v. Wickware, supra, at para. 31; Kwei v. Boisclair (1991), 60
B.C.L.R. (2d) 393 (C.A.); and Brown v. Golaiy (1985), 26 B.C.L.R. (3d)
353 (S.C.) per Finch J. They include:
1. whether the plaintiff has been
rendered less capable overall from earning income from all types of employment;
2. whether the plaintiff is less
marketable or attractive as an employee to potential employers;
3. whether the plaintiff has lost
the ability to take advantage of all job opportunities which might otherwise
have been open to him, had he not been injured; and
4. whether the plaintiff is less
valuable to himself as a person capable of earning income in a competitive labour
market.
[11] The task of the court is
to assess damages, not to calculate them according to some mathematical
formula: Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12
B.C.L.R. (3d) 248 (C.A.). Once impairment of a plaintiff’s earning capacity as
a capital asset has been established, that impairment must be valued. The
valuation may involve a comparison of the likely future of the plaintiff if the
accident had not happened with the plaintiff’s likely future after the accident
has happened. As a starting point, a trial judge may determine the present
value of the difference between the amounts earned under those two scenarios.
But if this is done, it is not to be the end of the inquiry: Ryder (Guardian
ad litem of) v. Jubbal, [1995] B.C.J. No. 644 (C.A.); Parypa v.
Wickware, supra. The overall fairness and reasonableness of the award must
be considered taking into account all the evidence.
[108] In
Perren v. Lalari, 2010 BCCA 140, the court considered a number of cases,
and summarized the basic principles that a court should consider in assessing
damages under this head:
[30] Having reviewed all of
these cases, I conclude that none of them are inconsistent with the basic
principles articulated in Athey v. Leonati, [1996] 3 S.C.R. 458, and Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229. These principles are:
1. A future or hypothetical
possibility will be taken into consideration as long as it is a real and
substantial possibility and not mere speculation [Athey at para. 27],
and
2. It is not loss of earnings but,
rather, loss of earning capacity for which compensation must be made [Andrews
at 251].
[31] Furthermore, I conclude
that there is no conflict between Steward and the earlier judgment in Pallos.
As mentioned earlier, Pallos is not authority for the proposition that
mere speculation of future loss of earning capacity is sufficient to justify an
award for damages for loss of future earning capacity.
[32] A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss. If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown. The former approach will be more useful when the loss is
more easily measurable, as it was in Steenblok. The latter approach will
be more useful when the loss is not as easily measurable, as in Pallos
and Romanchych. A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment. That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss.
[109] The
approach to be taken in the assessment of claims for loss of income was
helpfully summarized by Savage J. in Parker v. Lemmon, supra, as
follows:
(1) A plaintiff must first prove
there is a real and substantial possibility of a future event leading to an
income loss before the Court will embark on an assessment of the loss;
(2) A future or hypothetical
possibility will be taken into consideration as long as it is a real and
substantial possibility and not mere speculation;
(3) A plaintiff may be able to
prove that there is a substantial possibility of a future income loss despite
having returned to his or her employment;
(4) An inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss;
(5) It is not the loss of earnings
but rather the loss of earning capacity for which compensation must be made;
(6) If the plaintiff discharges the
burden of proof, then there must be quantification of that loss;
(7) Two available methods of
quantifying the loss are (a) an earnings approach or (b) a capital asset
approach;
(8) An earnings approach will be
more useful when the loss is more easily measurable;
(9) The capital asset approach will be more useful when the
loss is not easily measurable.
[162] The
plaintiff submits that were she to work until age 65, at an annual loss
calculated of $40,000, the present value of the loss would be $800,000. This
allows for all labour market contingencies, which reduce the present value
calculation by 36%. Allowing for the fact that, were she to have a child either
naturally or through adoption, she would stay home for the first few years; the
plaintiff claimed $700,000 for loss of future earning capacity.
[163] The
defendant submitted such a mathematical calculation becomes nonsensical
considering:
a) the plaintiffs
employment history;
b) choice
contingencies, such as the fact the plaintiff had no employment pre-accident
for one-and-a-half years;
c) exigencies
related to her intention to resume IVF treatment, and if unsuccessful in that
program, to adopt children, and to remain out of the work force for at least
three to four years, which was what Mr. Al-Tamimi anticipated; and
d)
the realistic possibility she will return to work after she resumes
treatment and has become settled in Qatar.
[164] Apart from
the testimony of Mr. Al-Tamimi that Qatar is one of the most prosperous
nations in the world, that women are free to work and do, and that wages are
high, as is the cost of living, the Court does not have any evidence about
opportunities available to individuals with the plaintiffs credentials. The
plaintiff refused to see any additional experts when she returned from Qatar to
see other medical experts counsel had arranged. As the evidence stands, it
amply proves plaintiffs chronic pain and related psychiatric problems and
limitations. I can accept that the economy in Qatar is prospering, that
employment opportunities are available to women there, and that compared to
Canada, wages are high overall.
[165] The
plaintiffs actuarial and economic calculations are instructive, but taking
into account all the relevant factors that in the evidence, they are somewhat
restricted. In my respectful view, an award based on the plaintiffs
assumptions and mathematical calculations results in an unrealistic and
excessive award.
[166] I find the
plaintiff has been rendered less capable overall from earning income from all
types of employment; is less marketable or attractive as an employee to
potential employers; cannot take advantage of all job opportunities that
otherwise might be open to her but for her injuries, and is less valuable to
herself as a person capable of earning income in a competitive labour market: Kwei
v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.); Brown v. Golaiy (1985),
26 B.C.L.R. (3d) 353 (S.C.).
[167] Considering
all the relevant factors arising from the evidence, including the plaintiffs
age, 39; her employment history; her definite intention to raise a child, either
through IVF or adoption; and considering Mr. Al-Tamimis high income, that
she would have chosen to remain out of the work force or to have worked
part-time, irrespective of the accident; the realistic possibility her health
will improve enough to resume employment on at least part-time; but also
mindful of pessimistic prognoses and the possibility she will not so improve,
and weighing all the evidence as a whole, I award $250,000 for loss of future
earning capacity.
5
Cost of future care
[168] A
recoverable future care cost must be reasonably necessary to promote or to
preserve the plaintiffs mental and physical health and be an expense the
plaintiff is likely to incur: Krangle (Guardian ad litem of) v. Brisco,
2002 SCC 9 at para. 23; Milina v. Bartsch (1985), 49 B.C.L.R. (2d)
33 (B.C.S.C.) at para. 211.
[169] If the
evidence clearly shows the plaintiff previously has resisted use of items or of
availing himself of services medically recommended, the court may consider that
as a factor when considering a cost of care claim advanced by the plaintiff, Izony
v. Weidlich, 2006 BCSC 1315; Drodge v. Kozak, 2011 BCSC 1316.
.1
Loss of homemaking/housekeeping
capacity
[170] The
plaintiff advanced a separate claim for diminished homemaking capacity, but not
a pecuniary claim for the cost of replacement services as part of her cost of
future care claim.
[171] If a
plaintiffs homemaking/housekeeping capacity has been diminished, they are
entitled to a separate compensation for that loss, even where they have not
incurred a cost for replacement services: Deglow v. Uffelman, 2001 BCCA.
652, paras. 24 – 26. In Schenker v. Scott, 2014 BCCA 203, the Court
of Appeal upheld a jury award for loss of homemaking capacity where they had
also made an award for the cost to replace future homemaking services. The Court
found at para. 94, that an award of damages for loss of housekeeping capacity
may be considered under a separate head of damages.
[172] The
plaintiff feels that homemakers coming into her home would invade her privacy.
She prefers to perform the work herself, although her husband has assumed a
substantial portion of housekeeping duties. It takes her longer to complete the
work than before the accident.
[173] The total present
value of the replacement cost for two hours weekly homemaking assistance in
Qatar is $23,879.
[174] The
plaintiffs position is that while she is not likely to return to work, she
likely will have a child. The plaintiff submitted that considering she likely
will have a child to care for; that her home is less clean than before; how
much housekeeping Mr. Al-Tamimi has to do now; and the $23,879 cost of
replacement services required, but which the plaintiff likely would not accept,
that $50,000 for loss of home making capacity is an appropriate amount. Given
the evidence, I find that figure high.
[175] Ms. Berrys
physical assessment of the plaintiff was essentially normal, although
difficulty scrubbing the tub was specifically noted. Rated as within normal
range were range of motion, reaching, and standing tolerance. Mr. R.
Gander, an occupational therapist retained to critique Ms. Berrys
recommendations, criticized Ms. Berrys assessment because she did not
assess the reliability of the plaintiffs subjective reports, did not consider
adaptive equipment or methods for housekeeping, and made a recommendation for
two hours housekeeping unsupported by her own observations.
[176] The defendant
did not propose a separate award for diminished homemaking capacity, but did
propose a contingent award for replacement cost of future housekeeping in the
range of between $5,000 and $10,000.
[177] The
defendant argued that the plaintiff has consistently stated she did not want
housekeepers in her home; that Dr. Adrian had found her capable of
managing her housekeeping; and that Ms. Berry acknowledged the level of
housekeeping she had recommended would cover a full cleaning of the home,
further explaining that most housekeeping agencies maintain a two-hour minimum.
Further, Ms. Berrys recommendation was based on the assumption that
either the plaintiff would have children or return to the workforce. The
defendant maintains there is a very high likelihood the plaintiff will return
to the workforce, which, however, as discussed earlier, is too optimistic a
characterization of that eventuality.
[178] The same
evidence may undergird a separate award for diminished earning capacity and for
cost of future replacement services. I find a conditional cost of future care
award for housekeeping replacement of $5,000 reasonable.
[179] As for the
separate head of damage for diminished housekeeping capacity, I award $15,000.
.2
Other cost of care claims
[180] The
defendant noted that one of the confounding aspects of the plaintiffs case
was her unwillingness to accept treatment options, such as an activity program
at the gym or assistance such as housekeeping, unless her depression and
anxiety were successfully treated, a premise countervailed by her resistance to
treatment of those conditions.
[181] Dr. Mitha
pointed out that some patients are not responsive to proffered treatment, but
as we saw earlier, the plaintiff did not complete some treatment regimens such
as Cymbalta.
[182] As
mentioned earlier, a plaintiffs duty to take objectively reasonable steps to
mitigate their damages applies to future expected losses. If a plaintiff is
awarded an amount for future treatment, it is only reasonable to presume it
will have some amending benefit for their well-being and functioning.
[183] The
plaintiffs cost of care figures were based on Ms. Berrys recommendations
and calculated by the econonmist, Ms. C. Clark.
.01
Trial medications, orthotist and
medial arch supports
[184] Dr. Adrian
had recommended a trial period of Nortriptyline, an anti-depressant. As we saw,
the plaintiff had improved sleep with Cymbalta, prescribed by her family
physician, Dr. Mitha and Dr. Hyrman. Ms. Clark did not calculate
the annual cost of $69.35 because its use had yet to be determined. The
plaintiffs counsel submitted that the plaintiff did not respond well to trials
of two different antidepressant medications and had weaned herself from all
analgesic medications. I understood this partly was with a view to preparing
for entry into the IVF program, again. Counsel submitted that while the
plaintiff may try further medications it is unlikely she would take them on an
ongoing basis.
[185] Apart from
the $349 cost for a trial of Nortriptyline, there is no solid basis on which to
make an award cost of future medications, although there is credible evidence
she would benefit from Cymbalta. The defendant does not object to an award for
a trial of nortriptyline or for the $500 cost for the orthotist and medial arch
supports. The total of these items is $894.
.02
$2,760 claimed for CBT
[186] The
plaintiff testified she would undertake Cognitive Behavioural Therapy (CBT)
if recommended and if can help her cope with her symptoms. The cost of this is
calculated at $2,760. The medical evidence with regard to psychological
counselling is mixed; both Dr. Adrian and Dr. Tomita recommended it.
The plaintiffs family physician, Dr. Mitha, does not think it will
improve the plaintiffs condition. Dr. Mok and the plaintiff indicate she
is not receptive to psychological counselling. The plaintiffs evidence with
respect to CBT is quite conditional. The defendant advances Dr. Tomitas
opinion the plaintiff is treatable and his recommendation is that she seek
further treatment; and concedes $2000 for psychological therapy, the low end of
Ms. Berrys range of $2,000 – $3,600. Considering the contingencies, I
find $2,000 reasonable for psychological counselling.
.03
Gym and Kinesiologist
[187] The
plaintiff is pessimistic she will recover sufficiently to ever want to attend a
gym or see a kinesiologist. She believes she will prefer to stay home. In any
case, I would not award any amount for membership in a gym, even if the
plaintiff thought she might like to pursue an activation program. The plaintiff
enjoyed going on walks and hikes before the accident. If she wishes to try
membership in a gym, she can do so. It is increased activity that is at the
heart of the medical recommendations, not any particular type.
.04
Occupational Therapist
[188] The
plaintiff claims $5,000 for the services of an occupational therapist, purposed
to act as a case manager for the remainder of her life, to assist, motivate her
and encourage her to involve herself in the community, including her religious
community. While those are creditable objectives I find $5,000 exceeds what is
required to accomplish those objectives. I accept the plaintiff will required
an initial assessment to see how best to implement them, and some continuing
contact with the plaintiff to build social connections and some
self-confidence. I do not see evidenced a need for lifetime support. If the
occupational therapists work does not begin to show some results, within say a
half-year, it is not likely to be effective thereafter. I award $2,500 under
this heading.
.05
Vocational Counselling
[189] Dr. Adrian
recommended vocational counselling. The plaintiff claims $1,881 for this item
of care. The plaintiff identifies the objective as one of finding a way to
interact with other people in a meaningful way, for example at an animal shelter,
where the plaintiff thought she would like to volunteer. The defendant agreed
to the figure, but on the basis that the plaintiff has been out of the work
force for some time and could benefit from some vocational counselling. The
plaintiff is awarded $1,881 for vocational counselling.
6
Special damages
[190] The
plaintiff is awarded special damages of $4,355.52
[191] Costs in
the cause at Scale B.
SUMMARY OF
AWARDS
[192] In
summary, the plaintiff is awarded the following:
Non-pecuniary damages (para. 152) | $180,000 |
Past loss of earning | 80,000 |
Loss of future earning | 250,000 |
Loss of housekeeping | 15,000 |
Conditional cost of future | 5,000 |
Cost of future care – | 349 |
Cost of future care – orthotist and medial arch | 500 |
Cost of future care – psychological counselling (para. 186) | 2,000 |
Cost of future care – occupational therapist (para. 188) | 2,500 |
Cost of future care – vocational counselling (para. 189) | 1,881 |
Special damages (para. 193) | 4,355 |
Total | $541,585 |
[193]
If the parties need to speak to costs they may start with brief written
submissions forwarded to the Supreme Court Scheduler in Vancouver.
N.
Brown J.