IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Gabor v. Boilard, |
| 2015 BCSC 1724 |
Date: 20150923
Docket: M115694
Registry:
Vancouver
Between:
Susan Lana Gabor
Plaintiff
And
Wayne Boilard and
Sandra Boilard
Defendants
Before:
The Honourable Madam Justice Ballance
Reasons for Judgment
Counsel for Plaintiff: | D. F. Corrin |
Counsel for Defendants: | M.L. Macaulay |
Place and Date of Trial: | Vancouver, B.C. June 30, July 2-4, 7-11, December 12, 2014 |
Place and Date of Judgment: | Vancouver, B.C. September 23, 2015 |
PRELIMINARY REMARKS ABOUT CREDIBILITY
· Lethbridge College Fashion Design and
Merchandising Diploma (2000 2001)
· University of Lethbridge Bachelor of
Fine Arts (2002 – 2007)
· Employment at the U. Leth Art Gallery
· Dr. Josephine Mills Gallery Curator
· Don Gill Associate Professor, Faculty of
Fine Arts, U. Leth
· Mary Kavanagh Department Head, Faculty
of Fine Arts, U. Leth
· Counselling Sessions with Donella Scott
(November 2008 August 2009)
· Graduate School at Emily Carr (2009
2011)
· Professors Maria Lantin and Glenn Lowry
Emily Carr
· Morgan Rauscher Student, Emily Carr
· Pre-Accident Physical Complaints
· Appointment with Dr. Janice Harvey
(July 2010)
· Break-up with Devon Smith (2011)
· Short-Term Plans Following Graduation
· Evidence of Ms. Gabors Parents,
Mr. Rauscher and Mr. Suen
(a) Testimony
of Ms. Gabors Parents
· Dr. Lantins Encounters with
Ms. Gabor after the Accident
· Ms. Gabors Condition (Fall 2011
2012)
· Opportunity to Exhibit her Art
· Treatments by Jill Olson Occupational
Therapist (2011 2012)
· Job in Montreal (Summer 2012)
· End of the Relationship with
Mr. Rauscher
· Exhibition at the Gallery (January 2013)
· Ms. Gabors Physical Condition and
Treatments (2013 onward)
· Other Events in 2013 and Beyond
OVERVIEW OF THE PARTIES POSITIONS
(c) Brain
Injury/Cognitive Impairments and Fatigue
MS. GABORS PRE-ACCIDENT CAREER
ASPIRATIONS AND POTENTIAL
· Accepted Diagnostic Criteria for Mild
Traumatic Brain Injury
(a) Physical
Injuries and Chronic Pain
· Pre-existing Condition and Measurable Risk
of Loss
· Mr. Rauscher and the Impact on
Damages
· Non-Pecuniary Damages and Loss of
Housekeeping Capacity
· Loss of Income-Earning Capacity
(d) Medical,
Professional and/or Support Services
INTRODUCTION
[1]
On July 4, 2011, Lana Gabor’s car was struck by a pickup truck driven by
the defendant, Wayne Boilard, as he proceeded through an intersection on a red
light (the Accident). Liability for the Accident has been admitted.
[2]
Central to this hard‑fought dispute is Ms. Gabors assertion
that she sustained a mild traumatic brain injury as a result of the Accident
and that the residual sequelae are significantly impairing and permanent. She
contends that her injuries have detrimentally affected her intended career as an
art professor at the college or university level and her once promising future
as an artist. She seeks significant damages under the usual heads.
[3]
Related controversial sub-issues include the nature and extent of the physical
and psychological symptoms Ms. Gabor experienced before the Accident; their
contribution to her post‑Accident condition; and the likelihood that they
would have surfaced had the Accident not happened.
[4]
The defendants have also put mitigation in issue.
PRELIMINARY REMARKS
ABOUT CREDIBILITY
[5]
Ms. Gabor is an only child, born and raised in Lethbridge,
Alberta. Her parents are well-educated. Her father, Peter Gabor, is the
Associate Dean of the Faculty of Social Work at the University of Calgary,
Lethbridge campus. He holds a Bachelor of Arts degree and a masters and doctorate
in social work. Ms. Gabor’s mother, Carol Ing, has a masters degree
in counselling and administration, and a doctorate in child and youth
studies. Although she formally retired from post‑secondary teaching in
2007, Dr. Ing currently instructs on a part‑time basis at Lethbridge
College, the University of Calgary, and Athabasca University.
[6]
They are a close‑knit family.
[7]
The assessment of Ms. Gabors credibility and the reliability of
her evidence is pivotal in determining her physical, psychological and
cognitive states before and after the Accident, the causation of her injuries,
their nature and severity, and her damages. It is also material to the weight
to be given to the medical opinions to the extent that they are fastened upon
her subjective reporting, perception of her symptoms, and representation of her
pre-Accident condition.
[8]
As I wrote in Erickson v. Sibble, 2012 BCSC 1880 [Erickson]:
[6] Determining the credibility and reliability of a witness
is fundamental to the judicial task, and yet it is notoriously difficult. It
has been recognized that the determination is more an art than a science, and
is not a purely intellectual exercise. The factors involved can be challenging
to verbalize: R. v. R.E.M., 2008 SCC 51 at para. 49.
[7] A clarifying passage summarizing the factors to be
considered in the art of the assessment is found in Bradshaw v. Stenner,
2010 BCSC 1398 at para. 186:
Credibility involves an assessment of the trustworthiness of
a witness testimony based upon the veracity or sincerity of a witness and the
accuracy of the evidence that the witness provides (Raymond v. Bosanquet
(Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of
assessment involves examination of various factors such as the ability and
opportunity to observe events, the firmness of his memory, the ability to
resist the influence of interest to modify his recollection, whether the
witness evidence harmonizes with independent evidence that has been accepted,
whether the witness changes his testimony during direct and cross-examination,
whether the witness testimony seems unreasonable, impossible, or unlikely,
whether a witness has a motive to lie, and the demeanour of a witness generally
(Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny,
[1952] 2 D.L.R. 152 (B.C.C.A.); R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para. 128
(S.C.C.)). Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole and
shown to be in existence at the time (Faryna at para. 356).
[8] It is accepted as a general
rule that judicial assessment of credibility starts on the footing that the
witness is telling the truth: see Halteren v. Wilhelm, 2000 BCCA 2.
However, truthfulness and reliability are not always one and the same. A
witness may sincerely believe that she is telling the truth, but lack the
sufficient memory, perspective, cognitive ability or narrative capacity to give
reliable testimony. Alternatively, a witness may unconsciously indulge in the
human tendency to reconstruct and distort history in a manner that favours the
desired outcome: Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 10.
And there is always the possibility that a witness may simply choose to lie for
whatever reason.
[9]
The defendants attacked Ms. Gabor’s credibility and the reliability
of her evidence on multiple fronts. One of their chief approaches in cross‑examination
was to attempt to reveal that she deliberately lacked candor or lied outright
in some parts of her testimony. They accuse her of withholding key evidence
from some of the medical experts about her pre‑Accident soft tissue
difficulties and psychological symptoms and minimizing their severity so as to
promote her interests in this litigation over the truth. Additionally, the
defendants contend that Ms. Gabor has exaggerated to this Court and to
others the gravity of her residual cognitive impairments.
[10]
Building on the foregoing themes in final argument, the defendants
assert that Ms. Gabor was neither an accurate nor reliable historian. They
urge the Court to treat her testimony with scepticism and extreme caution, and
to discount it unless supported by reliable independent evidence. I will not
detail here the alleged testimonial deficiencies, preferring instead to address
those I consider most material throughout my Reasons in the context in which
they arise.
[11]
It was my observation that while testifying, Ms. Gabor sometimes
struggled to maintain her train of thought. At other times, she had poor or
only partial recall of events. As will be seen, there is no disagreement among
the medical experts that Ms. Gabor has difficulties with memory, attention,
concentration and informational processing. It is the cause of those cognitive
impairments that is at the heart of this case. Whatever their cause, her
cognitive frailties, while not an excuse to permit deliberately concocted testimony
to be given without attracting consequences, must nonetheless be taken into
account in the overall assessment of Ms. Gabors credibility and
reliability.
[12]
Ms. Gabors overall presentation in the courtroom left the
impression that she was making a concerted and sincere effort to answer questions
helpfully and truthfully. In evaluating her testimony against the balance of
the evidence as a whole, I conclude that the defendants criticisms of her are
insubstantial and do not serve to impugn her credibility on material issues or impeach
the reliability of her evidence, with one notable exception. As I will elaborate
upon later in my Reasons, I found Ms. Gabors denial about being
prescribed or using Ativan prior to the Accident to be implausible.
[13]
In my view, Ms. Gabors testimonial shortcomings on that or any
other issue do not reveal a pattern of concealment or of attempting to shape
the evidence in a self‑interested manner. I do not consider her to be a
discreditable witness across the board and do not require independent
corroborative evidence in order to accept her testimony on disputed matters.
This is in large part due to the persuasiveness of Ms. Gabors testimony
on the majority of the key disputed issues and the convincing force of the
supportive testimony of her parents and other collateral witnesses. That being
said, because cross-examination of Ms. Gabor on the matter of her pre‑Accident
use of Ativan mildly tainted her credibility, I have approached the whole of
her testimony with a degree of caution.
[14]
The defendants submit that Ms. Gabor’s parents presented their
evidence as a united front in this litigation and were advocates for
their daughter. Expanding on the latter point, they emphasize that under
cross-examination Dr. Ing agreed that she supported her daughter and that
she was an advocate for her. The defendants assert that Dr. Ing was evasive
in her responses to questions where she perceived that the answer had the
smallest chance of harming her daughter’s interests. They argue that, reflective
of that posture, Dr. Ing would regularly embark on long rambling tangents,
sometimes citing her experience in her various professional capacities, as a
means of supporting her partisan reply.
[15]
Except for offering a small handful of examples, the defendants
depiction of Ms. Gabor’s parents as being flawed witnesses was expressed
in overly generalized condemnations. As to the instances said to illustrate Dr. Ings
testimonial deficiencies, I agree that she overstated some of her
daughter’s achievements and found she was somewhat combative with counsel when
cross-examined about Ms. Gabor’s use of Prozac and the instances of teenage
cutting and purging. She also verged on projecting hostility in rejecting the
suggestions put to her by defendants’ counsel along the lines that she was an
overprotective mother and that Ms. Gabor did not genuinely require the
degree of support she gave to her after the Accident. To this I would add
that, on a few occasions, Dr. Ing did tend toward providing lengthy,
lecture-like answers. One such occasion arose when she was confronted with her
daughters low grades attained in some high school subjects and she then proceeded
into a monologue about how marks are not necessarily reflective of a student’s
capacity.
[16]
Under our model of civil litigation, it is unacceptable for a person who
has been qualified to testify as an expert to assume the role of an advocate.
This is because the nature of the expert’s role in the court process, which is
to assist the trier of fact by providing an unbiased opinion based on his or
her special training, skill and experience, mandates that he or she be
impartial.
[17]
Dr. Ing did not testify as an expert witness. When she agreed with
defence counsel that she was an advocate for her daughter, she meant nothing more
than she supported her daughter as would any concerned and loving parent in the
circumstances. Considered in the context of the whole of her testimony, Dr. Ings
acknowledgement of being an advocate cannot reasonably be construed as an
admission that she was campaigning for or advocating a legal position for her
daughter in this litigation with the result that she skewed her evidence, as the
defence urges.
[18]
Dr. Ing did not attempt to mislead or confuse the Court or avoid
answering difficult questions on material matters. While some of the snippets
of her testimony highlighted by the defendants were unfortunate, they were not
emblematic of her evidence and not typical of her demeanour as a witness; their
cumulative effect did not detract from her credibility. In the larger picture,
I find that they were more the product of a fiercely proud and caring mother
speaking about her only childs marked decline after the Accident.
[19]
By and large I found both Dr. Ing and Dr. Gabor to be
forthright witnesses who testified with appropriate balance and candour in,
what are for them, heartbreaking circumstances. They are trustworthy and
believable and I find their testimony reliable on all material points.
BACKGROUND
·
Events in Early Adolescence
[20]
As a child and continuing into her teens, Ms. Gabor was active in a
wide array of sports, including competitive figure skating, gymnastics,
synchronized swimming, ballet, and snowboarding. She excelled in a number of
them.
[21]
I accept Dr. Gabors evidence that his daughter had a trouble-free
childhood. When she was about age 13, her parents began to notice that their
usually cheerful daughter had become more oppositional. They detected an undercurrent
of low mood, they did not approve of her new peer group, and they saw that her
grades had slipped. Worried about these changes, Dr. Gabor spoke to a close
friend who happened to be a psychiatrist. That friend recommended that Ms. Gabor
be seen by a psychiatrist who met with her and prescribed Prozac, an
anti-depressant medication.
[22]
The pertinent medical records were not in evidence. However, the
probabilities of the testimony of Ms. Gabor and her parents satisfy me
that Ms. Gabor took only a relatively short course of Prozac, lasting for
less than one year including the time it took to gradually taper off of it, to
address her low-grade depression. I find that during this period, she saw the
prescribing psychiatrist on two or perhaps three occasions, at most, and did
not receive any ongoing psychiatric treatment beyond that. She was never again
treated for depression until after the Accident.
[23]
I find that it was also within this time frame that Ms. Gabor
engaged in two relatively disturbing behaviours for a fleeting period. First,
she began purging food. I accept her mothers evidence that when she
confronted her daughter about it and explained to her why such behaviour was
unsafe, she immediately stopped. The other behaviour was that Ms. Gabor
had made some horizontal cuts with a blade along the inside of her forearms.
When those were brought to her mother’s attention, she spoke to her daughter
and also to her then boyfriend.
[24]
Ms. Gabor testified that at this time the grunge counterculture was
popular with her new group of friends and that some of them were engaging in cutting
and purging. She said that she partook in those behaviours on two or three
occasions and then stopped entirely.
[25]
The probabilities of the evidence establish that Ms. Gabor’s
concerning behaviours were short‑lived. I find that before she had even
finished junior high school, she had stopped participating in them and had
resumed socializing with her former and more positive social crowd.
[26]
In high school, Ms. Gabors artistic side began to blossom. She developed
an interest in poetry, as well as other kinds of literature and the arts. She
was a self‑professed bookworm but, at the same time, was the hub"
of her circle of friends. At the encouragement of one of her teachers, she
discovered her interest in the artistic aspects of fashion design.
·
Lethbridge College Fashion Design and Merchandising Diploma
(2000 2001)
[27]
After high school, Ms. Gabor followed her interest in fashion in a
more concrete way. In the fall 2000 semester, she enrolled in a diploma
program at Lethbridge College to study fashion design and merchandising. That program
sparked an interest in photography and propelled her artistic pursuits more
generally. She attained mixed marks overall but generally excelled in the
fashion design classes, ultimately winning the class award in a juried
competition for the most outstanding design for her final fashion project.
·
University of Lethbridge Bachelor of Fine Arts (2002 – 2007)
[28]
In 2002, Ms. Gabor showed her portfolio to faculty members in the
Fine Arts Department of the University of Lethbridge (U. Leth). She persuaded
them to waive the usual pre-requisite photography courses and allow her to
enrol in the Bachelor of Fine Arts (BFA) program where she concentrated in
visual arts with a focus on digital media. She became engaged in
Lethbridges thriving fine arts community and actively developed her profile
within it. Her passion for art flourished.
[29]
While still an undergraduate student, Ms. Gabor started to come
into her own as an artist. She met with other artists and professors to seek
their advice on how to show her work and develop her art practice. She created
art, organized an art exhibition, obtained a solo exhibition of her work and, through
her own initiative, partnered with a university professor in a juried co‑exhibition.
She even sold some of her photography pieces. In 2006, she received a particularly
prestigious and sought‑after art‑related scholarship worth $5,000.
She also organized a trip to Hong Kong without difficulty,
[30]
During her undergraduate studies at U. Leth, Ms. Gabor lived
variously with friends and on her own and eventually moved in with her
boyfriend, Devon Smith. She tended to most of the cooking, cleaning and other
household responsibilities. She held various part-time summer jobs and
continued to pursue the development of her artistic side during summer breaks.
[31]
At some point, Ms. Gabor and two of her girlfriends joined a belly
dancing class. To start, she pursued it for its enjoyable social aspect and
because it meant one less day at the gym. However, she later participated in a
few performances and also taught a dance class. What began as a social pastime,
evolved into a steady part‑time job when she subsequently moved to
Vancouver.
·
Employment at the U. Leth Art Gallery
[32]
Upon successfully completing her BFA in 2007, Ms. Gabor secured a job
working at the U. Leth Art Gallery (the Gallery) as a fine arts
technician. The position was 70% equivalent to full-time hours and primarily
involved graphic design work for the Gallerys promotional materials and
notices of exhibits. She was also responsible for updating and maintaining the
Gallerys website and assisting with some preparatory work. The evidence shows
that Ms. Gabors annual salary was approximately $25,507.
[33]
While at the Gallery, Ms. Gabor continued to create and promote her
art. Working part time permitted her an opportunity to be in her art studio
and prepare and distribute customized proposals for different art shows with
the goal of attaining a gallery exhibition of her work. She cultivated a mentorship
relationship with a well‑known local artist with whom she shared studio
space and who helped distribute her proposals. Ms. Gabor was able to
secure a solo juried show in Calgary and participated in group exhibitions.
She also applied to and was accepted as an artist-in-residence in Budapest,
Hungary, and easily organized her travel arrangements and managed the
immigration requirements.
·
Dr. Josephine Mills Gallery Curator
[34]
Dr. Josephine Mills is the Director and Curator of the Gallery, as
well as an associate professor in the Department of Art at U. Leth. She
first met Ms. Gabor when she was completing the course requirements of her
BFA.
[35]
Dr. Mills recalled that Ms. Gabors artistic work as a student
stood out as being very good, both technically and conceptually. She explained
that the Gallery only hires the best students and that Ms. Gabor fit that
classification. Indeed, at the time, Dr. Mills considered Ms. Gabor
to be one of the top undergraduate students that she had ever seen. She impressed
Dr. Mills as being highly engaged with the entire art community, which Dr. Mills
emphasized was crucial for an emerging artist in her position.
[36]
Dr. Mills described Ms. Gabor as a conscientious, intelligent
woman who was capable of carrying out complex instructions. She was described
as a decent employee who performed her assigned tasks on time. Dr. Mills only
criticism was that Ms. Gabor did not show initiative to take on extras
at work.
·
Don Gill Associate Professor, Faculty of Fine Arts,
U. Leth
[37]
Some of Ms. Gabor’s U. Leth professors, including Don Gill and
Mary Kavanagh, encouraged her to go on to graduate school. Professors
Gill and Kavanagh credibly testified about Ms. Gabors many strengths and
talents and I accept their testimony without reservation.
[38]
Don Gill is an associate professor in the Department of Fine Arts. He
began teaching at U. Leth in 1999 as a sessional instructor and obtained a
full-time, tenure‑track professorship in 2001. Before he joined the
faculty at U. Leth, he was a sessional instructor at a number of
different universities throughout Canada and the United States. He holds a
Bachelor of Fine Arts from the University of Victoria and a Master of Fine Arts
from the California Institute of the Arts.
[39]
Mr. Gill taught Ms. Gabor a number of intermediate and advanced
photography courses at U. Leth, and worked with her one-on-one in her
independent study designation in photography exploration. He said she was an
excellent pupil one of those rare students who stood out. The quality of her
work, which Mr. Gill considered to be advanced, also stood out.
[40]
Ms. Gabor attended class regularly and was attentive, organized and
well-prepared. She was a presence in the class and approached the material
with an enquiring mind, obtaining top level marks in Mr. Gill’s
courses. Mr. Gill explained that A students like Ms. Gabor are
those who exceed the professor’s expectations. He ranked Ms. Gabor in the
top 10% of the students he has taught.
·
Mary Kavanagh Department Head, Faculty of Fine Arts,
U. Leth
[41]
Mary Kavanagh is an Associate Professor in the Faculty of Fine Arts at U. Leth
and was the Department Head for six years. She is currently the program chair
and in charge of the graduate program. Ms. Kavanagh holds a Master
of Fine Arts and a Master of Arts in art history.
[42]
Ms. Kavanagh taught Ms. Gabor when she was working toward her
BFA at U. Leth. She instructed her at both the beginning and the end of
her studies. She described Ms. Gabor as a talented, focused, dedicated
and engaged student. Unlike some, Ms. Gabor was disciplined and produced
according to deadlines. One of her strengths was that she sought out and was
receptive to honest critical feedback. Her work went above and beyond Ms. Kavanaghs
expectations and she earned top grades in both of Ms. Kavanaghs courses.
Ms. Gabor was an exceptional student and ranked in the top fifth
percentile of all students that Ms. Kavanagh has taught.
[43]
From Ms. Kavanaghs standpoint, Ms. Gabor was theoretically
astute and poised to delve more deeply into historical and theoretical terrain
related to her practice as a photographer and media artist. Ms. Kavanagh
described her former student as an original, curious and lively thinker with an
upbeat and independent personality. At no time did Ms. Gabor display
difficulties with focus, concentration or attention; nor did Ms. Kavanagh
notice any emotional or physical difficulties.
[44]
Ms. Kavanagh followed Ms. Gabors progress after her
graduation from U. Leth. She knew that she worked for Dr. Mills at
the Gallery and saw Ms. Gabor at art functions, screenings, and openings
around Lethbridge. To her mind, Ms. Gabor was very much part of the robust
arts community.
·
Applying to Graduate School
[45]
Ms. Gabor enjoyed her job at the Gallery but considered it to be merely
a starter position in her career. She understood that obtaining her
masters degree would open doors to many vocational options, including teaching
in an art‑based program at the university or college level.
[46]
Ms. Gabor applied to five different graduate schools. She ultimately
accepted a spot in the Master of Applied Arts (MAA) program at Emily Carr in
Vancouver, which had matched the entrance scholarship offered to her by another
prestigious art school in eastern Canada. Ms. Kavanagh had provided Ms. Gabor
with a letter of reference in support of her application to Emily Carr in
which she recited many of the accolades referred to above.
·
Counselling Sessions with Donella Scott
(November 2008 August 2009)
[47]
Between November 5, 2008 and August 4, 2009, Ms. Gabor saw Donella Scott,
a psychologist, approximately nine times. I find that her goals in seeking
counselling with Ms. Scott were to become less stressed and less worried,
to address her pattern of checking things, such as electrical appliances and
lights, and to discuss her concerns around her relationship with Mr. Smith
and whether he would be accompanying her when she moved to attend graduate
school.
[48]
In the initial session, Ms. Scott recorded Ms. Gabors
complaint of feeling a sense of panic and difficulty with breathing, among
other things. She noted that Ms. Gabor reported that since she was a kid
she had felt worried and anxious, although less so when she worked on her art.
At trial, Ms. Gabor did not recall a number of specific entries in Ms. Scotts
records such as her complaint of a sense of panic or difficulty breathing; however,
she conceded that she could have been experiencing those feelings at that
time. Also during this first meeting, Ms. Gabor reported that she slept
well and felt good rested. She described her appetite as okay and her weight
as normal. She disclosed that she had been bulimic, an affliction she told Ms. Scott
she had quickly stopped because it was too bad to continue.
[49]
On occasion, Ms. Gabor expressed to Ms. Scott that she was
anxious about letting someone down and frightened of making mistakes. She also
worried about which graduate school to attend and about making bad choices.
She talked about her boyfriends lack of commitment to the relationship, and
that she felt unsettled about whether he would move with her. At trial, Ms. Scott
elaborated that Ms. Gabor ruminated frequently, meaning she repeatedly went
over decisions in her head about making right and wrong choices.
[50]
According to Ms. Scott, the majority of the issues for which Ms. Gabor
had sought counselling were quite common for individuals in their mid-20s and
were related to age and stage challenges of life. She considered it a good
idea for people to seek counselling during those times if they believed they
might benefit from some additional support. In Ms. Scotts view, however,
Ms. Gabors checking behaviours went a notch beyond the commonplace age
and stage of life type concerns.
[51]
Notably, Ms. Scott confirmed that Ms. Gabor was very
functional during the time she was receiving counselling, for example, she was
holding a job, applying for graduate school, and travelling. She also thought
that Ms. Gabor made good choices such as attending graduate school at
Emily Carr in Vancouver.
[52]
On more than one instance, Ms. Scott charted that Ms. Gabors
affect during a given session was within the normal range, and there were no
recorded complaints or observations of her having a low mood or depression.
Her entries of March 11, 2009 record that Ms. Gabor was managing her
feelings of anxiety and that she was not checking outlets, etc. nearly as
much. She charted low grade anxiety during that session and their subsequent
appointments in April and June, 2009. Ms. Scotts notation in April added
that Ms. Gabor was functioning well with respect to work and school. She
also noted panic attacks in remission although, at trial, Ms. Gabor
denied ever experiencing panic attacks. As to that matter, it is evident from Ms. Scotts
records that Ms. Gabor was not complaining about feeling panic as an
ongoing symptom during their sessions.
[53]
Ms. Scott did not perform any psychological testing of Ms. Gabor
and testified that she did not, nor was she in a position to, make a formal
psychological diagnosis of any kind.
[54]
Ms. Gabors parents were aware that she was seeing Ms. Scott.
According to Dr. Gabor, in that time frame his daughter was fully
functioning and involved in her life, doing her art, working, and preparing her
applications for graduate school. Ms. Gabor did not tell her parents the
reason she was receiving counselling, and because they were not concerned about
her, they did not pry.
·
Graduate School at Emily Carr (2009 2011)
[55]
In the fall of 2009, Ms. Gabor and Mr. Smith drove to
Vancouver together and settled into their new apartment in preparation of Ms. Gabor
beginning her two-year graduate program at Emily Carr. The evidence
establishes that Ms. Gabor organized the move to Vancouver with no
difficulty and that it went smoothly.
[56]
As Ms. Gabor was putting herself through graduate school, she looked
for a part-time job to help defray her living expenses. By happenstance, she
noticed a restaurant displaying a sign seeking a belly dancer. She auditioned
on the spot and secured the job, working mainly on weekends. Over time and
mostly by word of mouth, Ms. Gabor obtained dancing engagements at other
venues. She enjoyed dancing and it paid well, approximately $200 per performance.
Before she relocated to Vancouver, Ms. Gabor had built a website to
promote her dancing. As her business expanded, she added to the website and
had business cards printed.
[57]
By all accounts, the MAA curriculum at Emily Carr is demanding and academically
rigorous. Ms. Gabors concentration continued to be in the visual arts
field with a focus on digital media.
·
Professors Maria Lantin and Glenn Lowry Emily Carr
[58]
Maria Lantin is the Director of the Intersections Digital Studio at
Emily Carr. She has her Ph.D. in computer science and is herself an Emily Carr
alumnus. Dr. Lantin has extensive experience in computer graphics,
visualization and simulation in both academic and industry settings. She acted
as one of Ms. Gabor’s supervisors for her master’s thesis project.
[59]
Glenn Lowry is an associate professor at Emily Carr. Until 2012, he was
the Assistant Dean, Critical Studies. He has been teaching at the
post-secondary level for 25 years. Dr. Lowry taught Ms. Gabor at
Emily Carr and supervised her master’s thesis in tandem with Dr. Lantin.
[60]
Dr. Lantin and Dr. Lowry were credible and forceful witnesses
for the plaintiff. Their combined testimony established the following facts:
(a)
The admissions process to obtain entrance into the MAA program at Emily
Carr is highly competitive. To be successful, the applicant must have compiled
a strong art portfolio, have a solid undergraduate transcript and have a proven
ability to do advanced level academic courses. The quality of the applicant’s body
of art work was also a crucial factor.
(b)
Ms. Gabor was a strong scholarship candidate.
(c)
The MAA degree granted by Emily Carr is equivalent to a Master of Fine
Arts awarded by other universities. An MAA is considered to be a terminal
degree, meaning that, generally speaking, it is the highest level of education to
be earned by someone seeking to work in a studio environment. Only very
recently have there been some specialized doctorate degrees available in the field.
(d)
The MAA is a demanding, full-time pursuit, particularly in the second
year when the thesis project dominates the workload. Second year students are
actively discouraged by administration from trying to work part-time.
(e)
Graduate students are required to complete both studio and academic classes
each term. It is expected that they will engage in the creative process and possess
a certain kind of tenacity, good technical and verbal skills, self-direction
and perseverance. They must also be able to withstand criticism of their studio
art‑work, their presentations and their academic work. Ms. Gabor
displayed these requisite abilities. She built a nice momentum rising to the
occasions of increasing intensity throughout the program.
(f)
Graduate students are expected to regularly participate in open criticisms
of their work, known informally at Emily Carr as crits. A crit is akin
to a mini thesis defence where a students work and presentation of it would be
challenged, even coming under attack, on a regular basis by peers and faculty
alike. The crits are gruelling and intense.
(g)
Not all students finish the masters program at Emily Carr. Dr. Lowry
recalled that in Ms. Gabors year, there were several students who did not
complete it.
(h)
Ms. Gabor was involved in many group activities around Emily Carr
and was very much engaged with her cohort in the school social life. As Dr. Lowry
put it, she was always there and always strongly present.
[61]
Drs. Lantin and Lowry are both highly selective about the students they
are prepared to supervise. In deciding whether to assume a supervisory role
for a particular student, Dr. Lantin will consider whether the student is
a good fit in terms of personality and research interest. She demands that her
students be proactive and self‑starters, who are able to articulate their
ideas well. Ms. Gabor met all of her requirements.
[62]
Dr. Lowry will only supervise students whose research interests
align with his own. To him, that means they must have a desire to incorporate
a more academic and theoretical component to their thesis. He explained that
he assigns preliminary readings to students who ask that he supervise them as a way
of gauging their true interest and commitment. Ms. Gabor passed his test.
[63]
Dr. Lowry described Ms. Gabor as a skilled artist with strong
technical skills and an interest in developing the theoretical side of her
work. He found her to be an easy student to supervise. She came prepared for
the regular meetings with him and Dr. Lantin, completed the suggested
readings, and was always hungry for feedback.
[64]
When Ms. Gabor was in her first year, Dr. Lowry chose her to
be his research assistant because of her strong verbal and written skills. Her
primary task was to assist in the compilation of a detailed and ever-expanding
bibliography for his current project by tracking down literature and other
materials. He described her work as thorough, timely and clear.
[65]
Dr. Lowry remarked that when Ms. Gabor attended Emily Carr
there were no teaching assistant positions available. Having worked with
teaching assistants in the past, he believed that Ms. Gabor possessed the
skills necessary to succeed in that role. He testified that, had a teaching
assistant position been available, he would have likely recommended Ms. Gabor
for it, especially if she had indicated an interest in it.
[66]
In addition to supervising Ms. Gabor and hiring her as a research
assistant, Dr. Lowry taught her in his research seminar, which was a compulsory
class in the MAA program. The course load was heavy and involved difficult
readings on dense topics such as the politics of creative engagement,
contemporary cultural theory and aesthetics. Students were required to give
presentations and field questions from the class on their readings. Dr. Lowry
testified that Ms. Gabor achieved an A grade both semesters.
[67]
Dr. Lantin also praised Ms. Gabor as being one of her best
students. During the thesis supervision process, they met approximately once
every ten days. During their meetings, some of which spanned two hours, Ms. Gabor
was present, articulate and able to focus. Dr. Lantin described her as
having good energy, being cheerful and engaging, and regarded her as a joy to
be around. She did not observe Ms. Gabor to have any physical impairments.
[68]
Dr. Lantin assigned Ms. Gabor readings that they would discuss
during their regular get-togethers. The amount of time taken to do the
readings would have occupied roughly 20 hours per week. Ms. Gabor was
able to complete the readings and be properly prepared when they met, even
though she had concurrent demands on her time with her other schoolwork and
preparing her thesis project. On top of all this, she continued to work as a
dancer.
[69]
Dr. Lantin testified that Ms. Gabor appeared to manage the
stress of the thesis project very well. She never seemed overwhelmed by the
process and never required an extension to any of the stipulated deadlines. Ms. Gabor
was on track and excelling.
·
Thesis Project
[70]
Ms. Gabors father is of Hungarian descent; her mother is Chinese.
Her thesis project was intended to pose a creatively structured challenge to
racial categorization and cultural assumptions, and to contribute to the
discussion of mixed race. In broad overview, Ms. Gabor endeavoured to do
so by creating a mythical ancient culture for which she coined the name, The
Chinarians. She brought life to the Chinarians through various
artistic mediums such as photography, jewelry, tools, clothing, adornments, and
storyboards, all of which she created herself. She presented the collection as
though it was an exhibition in a mainstream art gallery, with her at the helm
as curator.
[71]
Dr. Lowry believed that Ms. Gabor had the potential to develop
a practice as an artist. He testified that her thesis work touched upon the
themes of ethnicity and hybridity that are popular concepts, especially in
Vancouver given its cultural composition. His perception was that she had already
developed direction and momentum extending back to her exhibitions that
pre-dated her admission to Emily Carr. He expected that she would continue
along that road after graduation.
[72]
Dr. Lantin testified that Ms. Gabors thesis revealed her
solid sense of composition with respect to her photographs, materials and
stories, and her ability to see how things fit together. She noted that Ms. Gabors
thesis was well-received. Her thesis defence was friendly and uncontentious,
and her thesis passed with only minor revisions. So minor, said Dr. Lantin,
that she did not feel the need to meet with Ms. Gabor to review or discuss
them further. She estimated that Ms. Gabor should have been able to
complete those revisions within 20 to 30 minutes.
·
Morgan Rauscher Student, Emily Carr
[73]
Morgan Rauscher was a fellow student at Emily Carr, and a year ahead of Ms. Gabor
in the MAA program. He would eventually become her boyfriend. He credibly
testified that he regularly observed Ms. Gabor during her crits. He
perceived her to be strong and capable in her ability to present and help guide
the observers to see her point of view, rather than express herself in a
pedantic manner. Her demeanour was poised, mature, respectful and sometimes
witty.
·
Pre-Accident Physical Complaints
[74]
In August 2009, Ms. Gabor was seen by Dr. Kennedy at a medical
clinic in Lethbridge. Her chart indicates that she complained of a sore neck
and shoulders. Some weeks later she had an appointment with an orthopedic
surgeon, who was a friend of her mother’s, in respect of problems with her
right shoulder. Physiotherapy was recommended at that time.
[75]
Roughly 17 months later on December 5, 2010, Ms. Gabor returned to
the Lethbridge medical clinic complaining of a rash, eye problem and pain in
her right scapula, which is in the shoulder blade area. The physician referred
Ms. Gabor for massage and chiropractic therapy. There was no evidence to
suggest that Ms. Gabor sought any medical treatment in respect of her physical
symptoms during the interval between August 2009 and December 5, 2010.
[76]
In or around March 26, 2011, Ms. Gabor was seen by Dr. Lee at the
Crossroads Medical Clinic in Vancouver. His clinical entries record her
complaint of worsening back pain x 2 years. She was referred to a physiatrist
to address her right side thoracic spine and scapular pain x 2 years. Dr. Lee
also ordered x-rays of her cervical and thoracic spine that were sent to the physiatrist.
[77]
Within this general time frame, Ms. Gabor received two treatments
of massage therapy; one on May 4, 2011 and the other on June 4, 2011.
[78]
Ms. Gabor was not able to recall if, before relocating to Vancouver,
she had seen a doctor in Lethbridge for her sore neck and shoulders. When
presented with the applicable clinical record, she said she did not recall the 2009
appointment with Dr. Kennedy but did remember having sore muscles at times
and issues with her scapula/right shoulder that stemmed from her swimming
days. She agreed that she had attended acupuncture a couple of times and
possibly physiotherapy to address her shoulder pain. Ms. Gabor did not
think that she had had a sore neck at that time.
[79]
Although Ms. Gabor did not recall her appointment with Dr. Lee,
she did not deny having seen him and explained that her lawyer had, in fact,
shown her the clinical records. Her recollection was that her complaints to Dr. Lee
were about her right shoulder pain and not back pain. That is consistent with
the contents of the referral to the physiatrist but somewhat less so with the
contents of Dr. Lees chart. Ms. Gabor remembered asking Dr. Lee
for a referral to the physiatrist in respect of her shoulder. She did not remember
going for an x-ray until she was shown the x-ray report, at which time she admitted
a vague recollection of it.
[80]
The massage therapy records indicate that at the May 2011 massage appointment,
Ms. Gabor received treatment for neck and shoulder release". According
to her, that massage and the one she received the next month were not related
to the physical complaints she had relayed to Dr. Lee some months earlier,
and she denied having been symptomatic since her appointment with him. She testified
that she had booked the massages for the purpose of relieving her sore muscles
generally and to help her relax after the rigorous final months at Emily Carr.
[81]
Ms. Gabor’s recollections about the reasons for these medical and
massage appointments were spotty and did not accord entirely with the
complaints that she is noted to have made in the clinical records. Even so, I
am not satisfied that her poor recollection is the product of a wilful
intention to deceive. The appointments had taken place between three, and, as
many as five, years before Ms. Gabor was questioned about them at trial. On
the basis of the passage of time alone, I would not expect her to have a perfect
recollection of them at trial. While her murky recollection of these events underscores
the need to carefully assess the reliability of her testimony on key matters,
it did not contaminate Ms. Gabors credibility as a witness or the general
reliability of her evidence.
·
Appointment with Dr. Janice Harvey (July 2010)
[82]
While in Lethbridge during the summer break between first and second
year at Emily Carr, Ms. Gabor returned to the local medical clinic for an
annual checkup. Dr. Janice Harvey, a locum at the clinic, examined her
for approximately 30 minutes. Dr. Harvey knew who Ms. Gabor was because
she was acquainted with her parents, but had no independent recollection of the
appointment.
[83]
Relying on her clinical notes, Dr. Harvey testified that Ms. Gabor
raised four concerns to discuss during the checkup. At trial, she was only
questioned about one of them, namely the chart entry that stated that Ms. Gabor
told her that she had anxiety occasionally and "uses Ativan infrequently
but it helps". Dr. Harvey charted mild anxiety. The defendants
refer to that assessment in their closing submissions to support their
contention that Ms. Gabor was suffering from mild anxiety at that time. However,
Dr. Harvey’s assessment is not admissible as opinion evidence and her
records were not admitted to prove the truth of their contents.
[84]
Dr. Harveys records show that she prescribed four medications for Ms. Gabor
on the day of her assessment; one of them was for 30 tablets of Ativan. Dr. Harvey
explained that Ativan is used for the short‑term treatment of anxiety. She
agreed that she had no way of knowing whether Ms. Gabor filled the
prescription.
[85]
When taken to Dr. Harvey’s clinical records, Ms. Gabor said
that she did not believe that she had told Dr. Harvey she used Ativan
infrequently because she had never taken it. She therefore considered Dr. Harvey’s
notation to be inaccurate. In response to questioning about whether she had
received a prescription for that medication, she testified to the effect that a
family friend had mentioned to her that Ativan was good for taking on the
airplane to help with sleep, but that she had not ended up taking it then or ever
before. In that regard, it is mildly noteworthy that there is evidence that Ms. Gabor
told the psychologist she started to see after the Accident, that she was
nervous about flying.
[86]
Dr. Harvey testified that the medication screen she accessed on her
computer during the appointment indicated that Ms. Gabor had been
prescribed Ativan at some point in the past. The evidence provided no further specifics
about that past prescription, for example, when it was written and whether it
was filled. Ms. Gabor had seen Dr. Kennedy at the same clinic eleven
months previously and another clinic physician four months or so after her
appointment with Dr. Harvey. On neither occasion were complaints of
anxiety recorded in her chart and nor was Ativan prescribed. Nor was there any
cogent evidence to suggest that Ms. Gabor had been prescribed or was
taking Ativan while she was receiving counselling from Ms. Scott, or that the
use of anti‑anxiety medication was discussed during their sessions. There
was no hint in the evidence that Ms. Gabor was ever prescribed such
medication again or sought additional counselling before the Accident.
[87]
There are no clinical records in evidence, apart from Dr. Harvey’s
single notation, that indicate Ms. Gabor was ever prescribed or had used
Ativan. Dr. Harveys evidence that a computer record she read indicated Ms. Gabor
had been prescribed Ativan prior to their appointment in July 2010, was too vague
and nonspecific to carry any appreciable weight one way or the other.
[88]
I find that Dr. Harvey accurately recorded Ms. Gabor’s concern
about having anxiety occasionally and her statement that she had used Ativan infrequently
in the past. The evidence satisfies me that Ms. Gabor had tried Ativan in
the past, although extremely infrequently. I consider it unlikely, even with
her current cognitive deficits, that she had simply overlooked that fact. Accordingly,
I find Ms. Gabors denial of ever taking Ativan to be implausible. As stated
earlier, I do not consider her less than forthcoming testimony about her past
use of Ativan to be significant enough to compel the conclusion that she is an
unreliable historian on all matters or to impeach her credibility at large.
·
Break-up with Devon Smith (2011)
[89]
In the spring of 2011, Ms. Gabor ended her relationship with Mr. Smith
and he moved out of the apartment. I accept her evidence that she was upset by
the break‑up but believed it had been a long time coming and was for the
best. In fact, they have remained friends. The dissolution of their
relationship happened during a time when Ms. Gabors workload at school
was especially demanding. She was finishing her thesis project, working on her
graduate art show and preparing to defend her thesis.
[90]
Given that they worked so closely together, it is not surprising that Dr. Lantin
came to know Ms. Gabor personally. She was aware that Ms. Gabor and Mr. Smith
were having relationship troubles. Dr. Lantin convincingly testified that
Ms. Gabor was able to set aside her personal problems and focus on her
thesis project and assignments which she consistently completed on time. According
to her, Ms. Gabor never came to one of their many meetings distraught or
distracted because of any emotional upset she may have felt from the breakdown
of her relationship with Mr. Smith.
[91]
Chris Suen was friends with Mr. Smith and through him, came to know
Ms. Gabor in 2009. He was questioned about Ms. Gabors emotional state
when she ended her relationship with Mr. Smith. For a period of about one
month in the aftermath, he and Ms. Gabor spoke regularly and at length on the
telephone, sometimes into the night. Although she was upset about what had
happened with Mr. Smith and found it difficult to part ways, Mr. Suen
said it was not debilitating for Ms. Gabor and she did not fall apart. To
the contrary, he convincingly recalled that during that period Ms. Gabor
was strong and persevered at school, remaining organized and focused on her
academic responsibilities. He expressed amazement that Ms. Gabor was able
to execute such a wonderful graduate exhibition and complete her school work at
a time when she was dealing with the end of her longstanding relationship with Mr. Smith.
·
Short-Term Plans Following Graduation
[92]
Ms. Gabor testified that she was anticipating the next exciting
stage of her life with the achievement of her MAA. She planned to take a few
weeks off after graduation and spend part of the summer completing the minor
thesis revisions, visiting with family and getting to know her new boyfriend.
[93]
During this interval period, Ms. Gabor connected with a curator of
a gallery specializing in contemporary Asian art and invited her to see her
work and expressed interest in working at the gallery. She also applied for a
part‑time job as an instructional assistant/associate in the Art
Department of Kwantlen Polytechnic University (Kwantlen). An interview had
been scheduled to take place on a date that fell shortly after the Accident. In
the meanwhile, Ms. Gabor continued to discuss with her parents how she
should go about applying for academic positions. On her mothers
recommendation, she wrote directly to Dr. David Atkinson, who was then the
President of Kwantlen, to express her interest in securing a teaching position.
In her letter she said that her ultimate objective was to obtain a studio
teaching position, but that she was also interested in other university
positions that would suit her background and skills. Ms. Gabor also said
that the heart of her career was her continuing practice as a visual artist and
expressed confidence that that would enhance the value she could bring to any
teaching position.
[94]
There was some evidence that during her temporary respite, Ms. Gabor
also submitted an application to the Vancouver Art Gallery and to the Vancouver
Aquarium for art‑related positions.
THE ACCIDENT
[95]
The Accident occurred in the late morning of July 4, 2011. At the time,
Ms. Gabor was 29 years old and her parents were in town for a visit. She was
proceeding northbound on Hemlock Street, about to enter the intersection and
turn left onto West 4th Avenue in Vancouver. Her destination was a coffee
house in Kitsilano where she had arranged to meet her father.
[96]
Ms. Gabor proceeded into the intersection on a green light. According
to the defendant, Mr. Boilard, he was travelling eastbound in his large
pickup truck with his wife and his daughter and her two children. He was
distracted and entered the intersection on a red light. By the time he noticed
Ms. Gabors vehicle approaching on his right, he realized that he was too
close to stop and that he was going to hit her vehicle near her driver’s door. In
an attempt to avoid doing so, he accelerated while abruptly cranking his wheel
to the left. He hoped to be able to align his truck with Ms. Gabor’s path
of travel and move out in front of her so that she would hit the side of his
vehicle.
[97]
Mr. Boilard says he initiated this action when he was very close to
Ms. Gabor’s vehicle and was only partially successful in his attempted
evasive manoeuvre. The passenger side and wheel area of his truck collided
with the front of Ms. Gabor’s car and, to a lesser extent, the front part
of her driver’s side. He testified that the impact was so forceful that it
lifted his 7,000 pound truck, which then dropped back down, hit an abutment and
veered into a light standard causing damage to the truck bed on the drivers
side.
[98]
Afterward, Mr. Boilard claimed that he looked into his rear-view
mirror and saw Ms. Gabor’s vehicle rolling forward in its original
northbound direction of travel. He testified that, by chance, two motorcycle
police officers had been at the other end of the intersection. Mr. Boilard
understood that those officers called for the police and an ambulance to attend.
His recollection is that one of the attending officers spoke to him and another
went to Ms. Gabors vehicle.
[99]
Ms. Gabor claims to have an incomplete and inaccurate recollection
of the Accident and the events surrounding its occurrence. As will be explored,
her memory of them is relevant to the diagnosis of mild traumatic brain
injury.
[100] At trial, Ms. Gabor
testified that she saw a flash of white to her left and knew that she would not
be able to avoid the oncoming vehicle. She believes she recalls the sound of
the collision. She vaguely remembered not being able to exit the vehicle from her
drivers side door and that someone, possibly a police officer, helped her out
of the car. She thinks she exited from the passenger side. She said she felt
shocked and out of it and was crying.
[101] Ms. Gabor
believes that she must have called her father but does not remember doing so. Her
recollection is that he showed up soon after the Accident at a time when she
was standing on a traffic island abutment at the edge of the intersection. She
testified that her mother showed up later although she was not sure how much
longer after her father had arrived. She saw people going into her vehicle and
recalls interacting with an ambulance attendant. She does not remember how her
body felt, although she recalls that she developed a very bad headache that day.
Ms. Gabor does not remember leaving the Accident scene.
[102] Prior to
trial, Ms. Gabor recounted this basic version of the Accident, varying it with
more or less detail, to several treatment providers, physicians and independent
experts.
[103] Dr. Gabor
provided valuable evidence concerning the Accident scene and his daughters
presentation at the time. He received a telephone call from her while awaiting
her arrival at the coffee shop. Her voice sounded flat and different from how
he had ever heard her speak before, causing him immediate concern. She told
him that she had been in an accident. He asked simple questions such as, Are
you okay?, Are you hurt?, Can you move?, Where are you? but was not
getting answers. She was sobbing. After finally ascertaining from his
daughter her location, he quickly drove to the scene, arriving five to seven minutes
later.
[104] He saw her
parked car and noticed she was standing next to it holding onto or touching the
rear area and stepping into the traffic lane. The scene alarmed Dr. Gabor.
As he approached her, he observed that she looked dazed and confused and there
was a blank expression on her face that he had never seen before. He tried to
determine whether she was hurt but she kept saying that she did not know, and for
about half an hour, repeated words to the effect I was hit. I cant believe I was
hit.
[105] Dr. Gabor
testified that his daughter was mostly non‑communicative at the scene,
with an oddly dazed expression, as though she was looking but not seeing. She
was unsteady on her feet and so he sat her down and later had to help her to
walk.
[106] At some
point a police officer came by and spoke briefly to Dr. Gabor. Ms. Gabor
did not participate in the discussion, which struck Dr. Gabor as unusual
for her because normally she would have been in there like a dirty shirt. A
little later, a female police officer informed them that Ms. Gabor’s
vehicle would be towed. It was eventually determined to be a total write-off.
[107] Ms. Gabor
relayed the mechanics of the collision to her father in cryptic terms. His
recollection is that she told him she saw a white flash come at her and then
she was hit. She thought she saw someone looking in at her from her car window
and that she was helped out of her car.
[108] Dr. Gabor
called his wife and they agreed to meet at the Cambie Street Station of the
Canada Line. As he drove them to pick up Dr. Ing, he was unsuccessful in
his attempts to engage his daughter in any conversation. The most she would
say was I dont know when he asked if she was hurt.
[109] Dr. Ing
met up with her husband and daughter approximately 45 minutes after the Accident
occurred. At no time did she go to the scene. She testified that when she first
saw her daughter, she was sobbing and not speaking coherently. She kept
repeating a car hit me. Dr. Ing testified that her daughter did not
respond directly to her questions and appeared to be dazed and shocked.
AFTERMATH OF THE ACCIDENT
·
Dr. Michelle Tan
[110] Dr. Ing
and her husband were worried about their daughters well-being and agreed that she
needed medical attention. Rather than wait for her to be seen in a hospital
emergency department, they drove to the nearby Crossroads Medical Clinic where Ms. Gabor
had been seen in the past. Dr. Ing recalled that when they arrived at the
clinic, her daughter was too wobbly to walk without assistance, and that each
parent had to hold onto an elbow to guide her inside. While they waited for the
doctor, Ms. Gabor remained essentially non-communicative. Her eyes were
drooping and closing. She seemed really exhausted and fatigued, even though it
was the middle of the day.
[111] Dr. Michelle
Tan is the family physician who examined Ms. Gabor the afternoon of the
Accident, and on a few subsequent occasions. She testified in her role as a treating
physician and not as an expert.
[112] Concerned
that her daughter would not be able to communicate effectively with the doctor,
Dr. Ing accompanied her into the examination room. Before Dr. Tan entered,
Ms. Gabor was falling asleep. I accept Dr. Ings evidence that she
helped her daughter describe the Accident to Dr. Tan, essentially by
repeating what her husband had relayed to her.
[113] Certain of
Dr. Tans medical records were admitted into evidence on the limited bases
agreed to by the parties as set out in their document agreement and the
addendum to it, which were tendered as exhibits.
[114] The
entries made by Dr. Tan that day indicate that it was reported to her that
Ms. Gabor had been in an accident and her vehicle was t-boned in the
front more on the passenger side. She also charted no loss of
consciousness" and feels disoriented. shaken up. emotional ‑ angry,
weepy. sore from neck to lower back. R wrist sore. L knee also sore.
[115] Dr. Tan
confirmed that it was Ms. Gabor who had reported feeling disoriented and
that she had not made an objective assessment of disorientation. Dr. Tan
explained that, from her perspective, there was no medical reason to make a further
assessment. She added that the visit, which was roughly ten minutes long, was
too short to perform any cognitive tests or do a neurological exam.
[116] Dr. Tan
advised Ms. Gabor and Dr. Ing to watch for signs and symptoms of
concussion. She did so because she suspected that Ms. Gabor may have
sustained a concussion in the Accident and wanted to ensure that she was aware
of the signs so that she would go to the hospital for appropriate care if her
symptoms worsened.
[117] Ms. Gabor
has no recollection of what she said to Dr. Tan during that initial appointment.
[118] Ms. Gabor
returned to see Dr. Tan on July 11, 2011. The clinical records indicate
that at that time, Ms. Gabor complained of nightmares, neck and back
discomfort, aching and pain, fatigue, feeling moody, nausea, and ringing in her
ears. She stated that she walks 15 minutes and needs to sleep. During that
session, Dr. Tan assessed and charted whiplash injury and concussion.
[119] As is made
clear in the parties document agreement and addendum referred to above, and consistent
with the Ruling I made allowing the admission of this clinical record into
evidence over the defendants objection, it is not tendered as opinion evidence
or for a hearsay purpose, for example, as proof that Ms. Gabor suffered
a concussion after the Accident. The fact that Dr. Tan assessed concussion
and informed Ms. Gabor of it is relevant to the defendants theory that one
of the factors contributing Ms. Gabors persistent cognitive deficits is
the effect of iatrogenesis or diagnostic threat. That is a condition induced
in an individual by the process of medicine itself, such as the receipt of a
medical misdiagnosis. As explained by Dr. Rehan Dost, a medical
expert in neurology called by the defendants, the concept of the diagnostic
threat is that if a patient is told by a physician that she is brain damaged,
then the patient will behave as though she is brain damaged even though she is
not, which has a significant impact on the patients neuropsychological
functioning. The nature and timing of any physicians diagnosis related to
concussion or brain injury received by Ms. Gabor is therefore relevant.
·
Evidence of Ms. Gabors Parents, Mr. Rauscher and Mr. Suen
[120] The persons
closest to Ms. Gabor at the time of the Accident and who saw and
communicated with her most often in the aftermath were her parents, Mr. Rauscher
and Mr. Suen. I have summarized below their testimony about the multifaceted
decline they observed in Ms. Gabor after the Accident, particularly in the
first several months. I accept all of their evidence as accurate.
(a) Testimony of Ms. Gabors
Parents
[121] Following Dr. Tan’s
examination of Ms. Gabor on the day of the Accident, her parents took her
to the rented condominium where they were staying. She lay down on the couch
and complained of pain in her neck and intense headache. She spoke minimally
and when she did talk, she mostly just repeated the fact that she had been hit.
She continued to be unsteady on her feet and needed assistance to walk to the bathroom.
Dr. Gabor described his daughter as passive and did not think that she was
absorbing everything.
[122] Before the
Accident, Dr. Gabor and Dr. Ing had planned to leave Vancouver near
the end of July. They were so worried about their daughter’s condition, however,
that they added another three weeks to their visit. Due to their respective
work commitments, that was as long an extension as they could manage.
[123] From the day
of the Accident and continuing for the next several weeks, a pattern developed
whereby Dr. Gabor would typically collect Ms. Gabor from her
apartment in the morning, bring her to their condominium for the day and into
the evening and then return her around bedtime. Ms. Gabor spent most of
her days lying on the couch at her parents place. She slept on and off
throughout the day.
[124] Both
parents testified that their daughter was completely unlike how she was before
the Accident, emotionally, cognitively and physically. She was in physical
pain pretty much constantly, complaining of extremely severe headaches, as well
as neck, back, hip and wrist pain. It was difficult for Ms. Gabor to turn
her head or sit and stand for any length of time. She complained of dizziness
and experienced visual disturbances in the form of halos around objects. She
also heard ringing in her ears, had little appetite and felt nauseous a good
deal of the time. In response to Ms. Gabors complaint about an uncomfortable
sensitivity to light, her mother located a pair of fabric eyeshades for her to wear.
[125] Ms. Gabor
was seriously fatigued and depleted of energy. Dr. Gabor would tape her
favourite television program and she would fall asleep within two to three minutes
of playing it. For at least six weeks after the Accident, she was asleep more
than she was awake.
[126] Ms. Gabors
mood became fractious. She could become irritable and snappy for no apparent
reason. She was weepy and prone to deep sobbing, which her parents attested
was most unlike her and very upsetting for them to witness.
[127] Ms. Gabor
told her parents she felt like she was in a fog. She was easily frustrated
and overwhelmed even over mundane tasks, such as making a telephone call or receiving
a letter or having to reply to one. Both parents also noticed that she had a
much shortened concentration span, diminished motivation and an impaired
capacity to multitask. Dr. Ing credibly described how her daughter, who was
a writer and an avid reader for both leisure and school, began to encounter
difficulty finding her words after the Accident. When texting someone, she
would show the message to her mother and ask whether it seemed correct before
she sent it. She did not read for the remainder of the summer and has read
very little since then.
[128] Almost
immediately after the Accident, Ms. Gabor showed significant anxiety
related to driving and avoided it as much as possible. She was also a very
nervous passenger, screeching and squirming to the point that it distracted her
mother and made her anxious when she chauffeured her around.
[129] Very soon
after the Accident, Ms. Gabor began to attend a series of massage and
physiotherapy treatments, averaging approximately two to four times per week.
Being required to attend more than one appointment in a single day proved to be
too much for her.
[130] By all
accounts, before the Accident Ms. Gabor was adept at organizing all facets
of her life and was proficient at multitasking. It was she who would have to
remind her mother of things rather than the opposite. After the Accident, she
had trouble remembering appointments and keeping them organized. Both parents
powerfully testified that arranging and even attending her treatments was so overwhelming
for their daughter that they felt they had to intervene and coordinate them for
her. For the first time since becoming an adult, Ms. Gabor needed her
mothers help in areas that she had ordinarily taken care of for herself such
as cleaning her apartment, cooking, purchasing groceries, and driving.
[131] With the
passing of the initial weeks, Ms. Gabors hip and wrist pain abated and
her dizziness, difficulties with balance, nausea and ringing in her ears
gradually subsided. However, overall her improvements were minimal and the balance
of her emotional, physical and cognitive symptoms and her profound degree of
fatigue remained.
[132] As mentioned
earlier, Ms. Gabor had been granted an interview with Kwantlen not long
after the Accident. It was obvious to Ms. Gabors parents that their
daughter was in no shape to attend and they tried to discourage her from going through
with it. Ms. Gabor insisted as she did not wish to forgo the opportunity
and assumed that her condition would be improving. It turned out to be a poor
decision.
[133] Dr. Gabor
drove the three of them from Vancouver to the campus in Surrey. Ms. Gabor
fell asleep on the drive out and had to be awakened on arrival. She had a
headache, a backache and felt nauseous. Her parents again advised against going
ahead with the interview, but she was steadfast. They had to help her to the
interview room. Ms. Gabor slept most of the drive home. She was not
offered the position.
[134] I accept Dr. Ings
evidence that in the fall of 2011, she encouraged her daughter to try to return
to belly dancing as a means of attempting to normalize the pattern of her life.
Additionally, Dr. Ing hoped that resuming dance might boost her daughter’s
self-confidence and self-esteem.
[135] I find Ms. Gabor
declined some dance opportunities that arose shortly after the Accident due to
her physical pain. However, before the Accident she had committed to at least
two gigs which she performed in late 2011; one of them was only about five
minutes in length.
[136] Ms. Gabor
says that after the Accident she was more limited in her dance movements, was
not able to choreograph new dances, did not have the same ability to focus her
eyes and that spinning made her feel dizzy. Although she found these impairments
frustrating, dancing made her feel happy and enabled her to distance herself from
her physical pain while she was in the moment. It also made her feel good
about herself for accomplishing something.
[137] In light
of the level of care and daily assistance her parents had been giving to their
daughter, they had serious reservations about her ability to function on her
own and were uncomfortable leaving her in Vancouver to fend for herself. Despite
their misgivings, they did not believe that the solution was for her to return with
them to Lethbridge. They considered such a move to be a step backward and Dr. Ing,
in particular, was worried it would send her the wrong message. She thought it
important that her daughter continue to live as independently as possible, much
as she had been doing for the past ten years. I accept the parents evidence
that, at that point in time, they had no idea that their daughter’s impairments
would persist in the way that they have. They also derived some degree of
comfort from the fact that their daughter was not entirely alone in Vancouver
as Dr. Ing’s mother lived in the city for part of the year as well.
[138] Before Ms. Gabors
parents left Vancouver, they made arrangements for her to visit relatives in
San Francisco to coincide with their return to Lethbridge. The evidence
establishes that Ms. Gabors difficulties with planning and organization
surfaced when it came time to pack for her trip to San Francisco. That simple
task was too much for her and so her mother assisted. Dr. Ing had not
packed her daughters suitcase since she was a little girl. The American relatives
collected Ms. Gabor from the San Francisco airport, she stayed with them
for roughly two and a half weeks and then they escorted her to the airport for
her return flight to Vancouver.
[139] Once back
in Lethbridge, both of Ms. Gabors parents continued to check in with her
either over the telephone or via Skype and FaceTime, usually more than once a
day. Dr. Ing detected a qualitative change in their conversations. Mother
and daughter no longer discussed exciting and emerging trends related to the
art world and other topics of substance. Instead, the focus of their conversations
was around Dr. Ing reminding her daughter of her physiotherapy, massage,
and medical appointments, which she would follow up by email. To provide an
extra layer of assistance, Dr. Ing prepared and continuously updated a calendar
of appointments for Ms. Gabors use. Even then, Ms. Gabor would
sometimes forget to look at the calendar and, on a few occasions, she
would show up for an appointment on the wrong day and/or at the wrong time.
[140] In the
early days, Dr. Ing would telephone Ms. Gabor the day of the
appointment to remind her of it. Over time and especially once Ms. Gabor
was receiving treatment from an occupational therapist, a reminder call the
evening before proved sufficient.
[141] Dr. Ing
testified that she and her husband wanted to hire someone to cook for their
daughter and help her with domestic chores around the house once they had
returned to Lethbridge. They were already helping her financially and did not
have the money to cover those extra costs. I accept Dr. Ings evidence
that they only recently learned that the Insurance Corporation of British
Columbia might have paid for some of that expense.
[142] Ms. Gabors
parents decided that they would take turns visiting their daughter as much as
they could. They tried to ensure that one of them came to Vancouver each
month. In keeping with that plan, one or the other of them returned to
Vancouver at least twice in the fall of 2011. On one of those occasions, Dr. Gabor
bought Ms. Gabor a car. I am satisfied that she remained very reluctant
to resume driving at that time.
(b) Mr. Rauschers
Evidence
[143] The pre-Accident
picture of Ms. Gabor convincingly painted by Mr. Rauscher revealed a
significantly different person than the woman he observed after the Accident. His
before and after comparison aligns with the testimony of Ms. Gabor, her
parents, Mr. Suen and Dr. Lantin.
[144] Ms. Gabor
and Mr. Rauscher became a couple in about May 2011 and were together as
often as their busy schedules would permit. Sometimes, they saw one another
daily for a week at a stretch; other times they were together every other
day.
[145] Their
courtship before the Accident involved taking long walks together, sometimes for
four hours at a time. As they strolled, they would engage in meaningful
conversations across an array of topics that touched on art, their values,
their dreams and their future aspirations. They even discussed raising
children together. Mr. Rauscher had never before met anyone with whom he
could share such probing and mature discussions.
[146] Mr. Rauscher
recalled Ms. Gabor as having a high supply of energy and a lot of
patience. She took the initiative in their relationship and he relied on her
to make their plans. She was pleasant and strong-willed, but, at the same
time, was also kind and forgiving. She placed high expectations on herself. He
said Ms. Gabor was the happiest person in the room among the
predominantly dour and jaded group of graduate students. He was impressed by
her performances at the crits, how she held her ground academically, and that
she had a strict sense of academic boundaries.
[147] They would
occasionally do their schoolwork in the same space with Ms. Gabor working
in front of her computer for hours at a stretch. He described her ability to
concentrate and focus on her schoolwork as fantastic. At no time did he
observe her encountering any difficulty working on the computer for those
extended periods. He never knew her to take naps during the day, nor did she
exhibit any physical limitations or complain of physical pain.
[148] Mr. Rauscher
saw Ms. Gabor the evening of the Accident. To him, she looked as if she
had been hit by a truck. They hardly spoke. When he did ask questions, she
was very slow to respond. Her movements were sloth‑like and she seemed
to have a very hard time doing things. Mr. Rauscher recalled that he was
worried about her right away and felt nervous that she might faint.
[149] As the
days passed, it became even more obvious to Mr. Rauscher that Ms. Gabor
was not all right. Physically, she moved with extreme caution and appeared to
be in pain, especially in relation to her neck and back. She regularly endured
intense headaches and complained that she found things to be too much. She was
reluctant to drive and asked Mr. Rauscher to take her to appointments. He
readily agreed because the few times that she had driven after the Accident, he
felt nervous with her at the wheel because she failed to notice so many things
on the road.
[150] Mr. Rauscher
tried to reinstate taking walks with Ms. Gabor but does not recall whether
he was able to persuade her to even try. His recollection was that they spent
a lot of their time together in the evenings hanging out in her apartment with
him taking care of her. It would not take her long or take much for her to
become exhausted and/or frustrated. She took regular naps throughout the day
and sounded sleepy when he telephoned her to check up. If they decided to go
out for a bite, they would have long and drawn out conversations beforehand about
where they should go. Her concentration and focus seemed very bad. Sometimes,
it would take her up to three minutes before she would reply to a simple
question. They were not communicating at the meaningful level to which they
were accustomed. Ms. Gabor could no longer have a normal conversation
with him, much less one about a matter of any depth.
[151] The subject
of Ms. Gabor’s future career plans became a touchy matter between them. Ms. Gabor
would become upset and frustrated when Mr. Rauscher raised the topic with
her. It was Mr. Rauscher’s perception that she was trying to brush off
her symptoms and act as though she was doing okay. He was empathetic and
patient for a time, but gradually found it challenging to be around her. The
totality of Ms. Gabor’s changed behaviour began to take a toll on their relationship.
[152] Ms. Gabor
testified that the revisions required to complete her thesis barely amounted to
a paragraph of writing. Before the Accident, she had thought they would take her
a few hours at most. After the Accident, however, she was unable to meet the
deadline and had to obtain an extension. Mr. Rauscher characterized the
nature of the revisions as being little more than administrative edits. He could
see that the implementation of them was taking Ms. Gabor far too long. He
recalled that she would sit at her computer intending to perform the revisions,
but after about 30 minutes or so and having accomplished virtually nothing, she
would go lay down in her room. Mr. Rauscher became annoyed that she was
not completing her work, and her lack of productivity intensified his general
worry about her condition. He credibly testified that, before the Accident, Ms. Gabor
had been diligent and meticulous in carrying out her thesis work.
[153] More than
two months elapsed after the Accident before Ms. Gabor was able to finish what,
for her, should have been a straightforward task. Even then, completing the
minor revisions took significant encouragement and input on the part of her
father.
[154] An area of
tension that had been percolating in the relationship before the Accident and
continued afterward pertained to Ms. Gabors belly dancing. Mr. Rauscher
openly voiced his disapproval of her revealing clothing and made it known that
he found the practice of tucking tips into her costume during her performance to
be distasteful. He prepared a business plan that he thought would showcase the
pure elements of the traditional art of belly dancing and at the same time
enable Ms. Gabor to collect the money in a more dignified way than
stuffing it into her clothing. He also acknowledged that he had felt jealous when
he watched her dance. Their conflict intensified after the Accident.
[155] Mr. Rauscher
testified that, before the Accident, belly dancing had been a mere supplement
to Ms. Gabors aspirations to teach and pursue her artistic passion, and to
possibly return to school. After the Accident, he became unhappy that she was
not taking steps to pursue a career in academia or work on her art and was instead
treating dance as though it were her primary future focus. Mr. Rauscher strongly
objected to Ms. Gabor belly dancing as a career and made it known that he
wanted her to stop. She refused. He sent her at least one text message criticizing
what he perceived as her immodest dance costume, which Ms. Gabor found
hurtful and upsetting. She complained to him that she found him too
controlling.
[156] At some
stage in the fall of 2011, Mr. Rauscher relocated to Montreal to pursue
his doctorate at Concordia University. He is confident that he would not have
been accepted into the Ph.D. program had he not graduated from Emily Carr, as it
ranks among the top art schools in the country and is recognized globally.
(c) Mr. Suens
Evidence
[157] Mr. Suen
testified that Ms. Gabor had a buoyant personality before the Accident. She
was creative, articulate and had a great deal of drive and focus when it came
to her art. As a musician and fellow artist, Mr. Suen found Ms. Gabor
to be instant both inspired and inspiring.
[158] Before the
Accident, he and Ms. Gabor would often have intellectually stimulating
discussions about art and the world of the Chinarians. When they spoke
about the future, Ms. Gabor told him she wanted to be an art professor. He
explained that belly dancing brought her joy but was clearly a secondary
interest.
[159] Mr. Suen
observed several significant negative changes in Ms. Gabor after the
Accident. He noticed that she had had difficulties with memory and
organization. He described her as being wilted and noted that she often
became overwhelmed and teary. She was also withdrawn and antisocial.
[160] Mr. Suen
described Ms. Gabor as being very fatigued after the Accident. He said
that when she becomes tired, her shoulders slump, her head goes forward and her
eyes get droopy. She still needs to nap every day in order to function and
continues to be teary quite a bit of the time. His impression is that she no
longer has the drive and focus that was evident to him before the Accident.
[161] It was
apparent to Mr. Suen that Ms. Gabor was more hesitant in her
responses during day-to-day conversations. She would take a long time to
answer, sometimes appearing to be searching for her words. He noticed that she
could not always remember the names or locations of the restaurants and
bakeries that they frequented. There was also a qualitative difference in
their topics of conversation; their post-Accident discussions seemed to center
around food quite a bit.
[162] Mr. Suens
experience is that, since the Accident, Ms. Gabor has avoided talking
about her future. When the subject pops up in conversation, it is met with her
silence and they quickly change the subject.
[163] It is Mr. Suens
perception that Ms. Gabor minimizes her problems because she does not want
a fuss made about her. She tries to project a positive and gracious face to
the world even though he believes there is a lot more going on under the
surface.
[164] Mr. Suen
watched Ms. Gabor dance before and after the Accident. After the Accident,
he drove her to a number of her gigs and she would often fall asleep in the car
on the way. His observation is that Ms. Gabor has modified her dance routines
so as to avoid certain movements that involved her neck and head. For example,
she no longer does the move that involves balancing a sword on her head.
[165] Before the
Accident, Mr. Suen did not detect any indication of physical limitation or
difficulties with memory or attention in Ms. Gabor.
·
Dr. Lantins Encounters with Ms. Gabor after the
Accident
[166] Drs. Lantin
and Lowry met Ms. Gabor for dinner in August 2011 to celebrate her
completion of the MAA program. It was then that Dr. Lantin was made aware
that Ms. Gabor had been in the Accident. She could see a difference in Ms. Gabor’s
demeanour that evening and felt concerned by the changes she observed.
[167] Ms. Gabor
seemed to be subdued and not as shiny as before. It was Dr. Lantin’s
perception that Ms. Gabor was not talking about her art in the same way as
she had while a student at Emily Carr.
[168] Dr. Lantin
met with Ms. Gabor on two subsequent occasions. Ms. Gabor wanted
assistance from Dr. Lantin with respect to her career, particularly with
obtaining an instructor position. Ms. Gabor struck Dr. Lantin as
being lost, unclear and unfocused. Her ability to communicate and her
behaviour during those get‑togethers were different than they had been
before the Accident.
·
Ms. Gabors Condition (Fall 2011 2012)
[169] In about
October 2011, Ms. Gabor added acupuncture to her ongoing treatment
modalities of massage therapy and physiotherapy. As will be discussed, in
November she began treatment with an occupational therapist. On the
recommendation of that therapist, she commenced rehabilitation with a
kinesiologist in December 2011. For the next approximately nine months, Ms. Gabor
attended one type of treatment modality or another between three and
four times a week. In time, those sessions helped improve many of her
symptoms.
[170] Mr. Rauscher
testified that the difficulty in maintaining a long distance relationship with Ms. Gabor
was compounded by their communication problems which had begun to surface
before he departed for Montreal. In the spring of 2012, he paid her a ten-day
surprise visit. They were happy to see one another.
[171] Because so
many months had passed since he had last seen her, Mr. Rauscher anticipated
that Ms. Gabor would be on the road to recovery. He was saddened to
discover that this was not the case. She was still tired a lot of the time and
took naps in the afternoons. Everything she did struck him as being at a very
slow and cautious pace. They did not venture outside of Ms. Gabor’s
apartment very often. On the occasions that he tried to broach a substantive
subject with her, she became frustrated and/or anxious.
[172] Ms. Gabors
parents came to Vancouver for a six‑week visit in the summer of 2012. At
that time, Ms. Gabor was still prone to fatigue and spent a lot of time on
her parents couch sleeping. However, she had progressed somewhat and would
usually be able to take on two activities during the day, for example, a
medical appointment and a phone call or a lunch engagement. Afterward, she would
be overwhelmed and worn out.
[173] Dr. Gabor
credibly testified that his daughter was less tearful at this time but
continued to struggle with her mood which was up and down. Her problems with
memory, finding words, irritability, organization, planning and multitasking persisted.
Dr. Gabor testified that during that visit, he and his wife occasionally spoke
to their daughter about her career plans and applying for jobs. Although Ms. Gabor
expressed interest in moving forward with her teaching goal and working on her
art, she was not able to take any concrete action to follow through. Dr. Gabor
testified that in light of her symptoms, she would not have been able to manage
the demands of a teaching position at that time.
[174] Things
started to look somewhat brighter by the fall of 2012. Ms. Gabor began to
experience a decrease in the frequency and intensity of her physical pain. Because
her neck pain started to improve, she had fewer headaches. When she sensed
that her progress had plateaued with her existing physiotherapist, she switched
to a new one. She noticed that her upper back symptoms further improved after
instituting the change in treatment providers.
[175] Despite her
progress, some significant physical problems lingered. Her upper to mid‑back
and neck remained prone to becoming symptomatic with prolonged sitting,
particularly in front of a computer, and with other types of sustained
postures. Her neck pain typically triggered a severe headache.
[176] Although Ms. Gabors
sleep remained disruptive, she had mildly better energy levels. She was still
napping during the day but her fatigue had improved somewhat. Ms. Gabors
memory and ability to focus and concentrate seemed slightly sharper. She
continued to experience significant depressive and anxious symptomology, but her
low mood was lifting.
·
Opportunity to Exhibit her Art
[177] Ms. Gabor
went home to Lethbridge for the Christmas holidays in 2011. While there, she
arranged to have coffee with Dr. Mills and her other former supervisor
from the Gallery. She brought her laptop along and showed them pictures of her
Chinarian project. Dr. Mills found Ms. Gabor’s work really
interesting. It represented the kind of work that she would hope to see from a
young artist at Ms. Gabor’s stage in her career. Based on the body of Ms. Gabors
thesis work, Dr. Mills rather spontaneously offered her the opportunity to
show her work as a solo exhibition in the Gallerys satellite space. Ms. Gabor
readily accepted. In the words of her father, she was on cloud nine.
[178] Her show
was scheduled for January 2013 which gave Ms. Gabor approximately one year
to get ready.
·
Treatments by Jill Olson Occupational Therapist (2011 2012)
[179] In late
2011, Ms. Gabor began to see Jill Olson, an occupational therapist who has
taken extra training for, and is experienced in dealing with, brain injured
individuals. She treated Ms. Gabor for one year starting in November 2011.
She did not testify as an expert at trial.
[180] At the
outset, Ms. Olson observed Ms. Gabor to have numerous cognitive
difficulties involving attention, memory and information processing. She found
her general cognitive presentation to be very slow at first, requiring extra
time to answer questions. Ms. Olson had to speak slowly and sometimes
needed to rephrase the questions posed.
[181] Ms. Gabor
consistently had low energy during the entire year of treatment. Although she
was pleasant, her mood was largely flat. She regularly complained to Ms. Olson
of being tired and fatigued. She would yawn and often looked tired during
their sessions. Ms. Olson recounted that Ms. Gabor would display
cognitive fatigue within 35 minutes or so into the appointment.
[182] She noticed
that Ms. Gabor would not do as well in their session if she had attended
an appointment beforehand. To accommodate her daytime fatigue, Ms. Olson
attempted to set their appointments in the early afternoon; however, her schedule
did not permit her to do so consistently.
[183] Ms. Olson
recalled that during an attention assessment, Ms. Gabor closed her eyes which
she often did and placed her head in her hands and then appeared to jolt
herself awake from a momentary lapse. Ms. Olson had never had a client do
that in her presence before.
[184] The
defendants suggest that this instance is but one of many illustrations of Ms. Gabors
exaggerated and affected behaviour. I did not understand Ms. Olson
to suggest that Ms. Gabors demeanor at that or any other time was overly
dramatic, feigned or theatrical; certainly, she did not say she had interpreted
this specific behaviour in that way. Rather, I understood Ms. Olson’s
evidence to underscore the profound degree of fatigue Ms. Gabor was
battling at that time. Her extreme fatigue in that time period was also credibly
attested to by Ms. Gabor, her parents, Mr. Rauscher, Dr. Cheung,
and Dr. Bogod, a neuropsychologist who performed cognitive testing on Ms. Gabor.
[185] Ms. Gabor
told Ms. Olson about her physical pains and discomfort. Those complaints had
prompted Ms. Olson to refer Ms. Gabor to the kinesiologist referred
to earlier with the goal of increasing her physical functioning. She also
recommended to Ms. Gabor that she participate in physical activity and was
aware that she intended to carry on with her belly dancing.
[186]
Ms. Olson set three rehabilitation goals for Ms. Gabor to be
achieved by the end of the treatment block in one years time:
(a)
Functional/cognitive – for Ms. Gabor to develop the cognitive
capacity to participate in home and community‑based activities of daily
living and leisure activities at a level of modified independence.
(b)
Physically – for Ms. Gabor to increase her tolerances for physical
activity to 1.5 hours and to return to dance as a casual form of employment.
(c)
Productivity – for Ms. Gabor to have the physical and cognitive
capacity to initiate and follow through on identifying and accessing employment
or study in her field of interest.
[187] In the
early days of treatment, Ms. Gabor was tearful, hesitant and expressed
being fearful of her future. Ms. Olson taught Ms. Gabor compensatory
strategies aimed at benefitting her cognitive function and general productivity.
Included among those techniques was to maintain a daily calendar of
appointments and other important events. Ms. Olson observed that Ms. Gabor
lacked good insight and awareness of her needs and shortcomings. When left to
her own devices, she was not terribly successful in being able to identify when
to use a compensatory strategy and invariably had to be cued by Ms. Olson.
[188] Ms. Gabor
told Ms. Olson she wanted to pursue teaching art and continue having art
shows. With those goals in mind, they worked together to update her resume. Ms. Olson
was surprised by how much direction she had to give Ms. Gabor to
facilitate her completion of the simple task of composing a resume. Many of
the related activities involved contacting galleries, applying for art-related
grants and trying to show her art.
[189] Ms. Olsons
general approach was to break down the essential components of the particular
objective and then place responsibility on Ms. Gabor to carry out the
instrumental steps. She found that Ms. Gabor fared poorly when she worked
independently, for example, she failed to meet deadlines and left tasks
incomplete. Ms. Gabor testified that she found implementation of the
assigned steps demanding and exhausting even with Ms. Olson’s input. Ms. Olson
helped develop a toolkit of strategies to facilitate Ms. Gabors initiation
of tasks. As with her other compensatory strategies, the problem was that Ms. Gabor
did not always recognize when she needed to call upon the toolkit.
[190] With the
assistance of her mother and Ms. Olson, Ms. Gabor applied for a
part-time position at the Museum of Anthropology and submitted an application
for an artist grant in the spring of 2012 or thereabouts. She did not obtain
either.
[191] Over time,
Ms. Gabor demonstrated some gains in her sessions with Ms. Olson. As
her physical pain issues became more manageable with treatment and time, her
mood improved and she generally felt a greater sense of well-being. Although Ms. Gabor
was able to improve certain skills with practice, Ms. Olson found that she
continued to confront episodes of frustration due to her ongoing cognitive
impairment and the lifestyle changes brought about in the aftermath of the
Accident.
[192] Ms. Olson
did not think she could give much more instruction to Ms. Gabor with
respect to her cognitive status. She found that Ms. Gabor was independent
in her ability to carry out the activities of daily living such as meal
preparation, laundry, basic housekeeping, and personal grooming, although they
took her more time to accomplish. In discharging Ms. Gabor from treatment
in November 2012, Ms. Olson noted that her tolerances remained limited
with respect to sustained cognitive activities. She did display, however, an
increasing ability to plan and organize her upcoming art exhibit, and to market
her belly dancing business. Ms. Olson recommended that she continue to
utilize compensatory strategies, particularly for multi-step tasks.
[193] When Ms. Olson
discharged her, Ms. Gabor had submitted a study grant application and had
indicated an intention to follow other art-related opportunities. Ms. Olson
trusted that pursuing those goals along with her participation in the upcoming
art show would enhance Ms. Gabor’s confidence and act as a career
springboard of sorts. Ms. Olson had some trepidation about Ms. Gabor’s
ability to progress as hoped and, therefore, did not discharge her fully. Instead,
she recommended that Ms. Gabor see her for quarterly follow‑ups. When
she did not hear further from Ms. Gabor, she assumed that no news was good
news.
·
The Move (Spring 2012)
[194] I accept Ms. Gabors
evidence that she had been able to orchestrate and carry out her relocation to
Vancouver and her moves from various residences in Lethbridge without any
difficulty and in an orderly way. When she ended her relationship with Mr. Smith,
she knew she would either have to find a smaller apartment or a new roommate. Although
she opted for the former, her actual move did not occur until the spring of 2012.
[195] Mr. Suen
testified that his interactions with Ms. Gabor around that time led him to
believe that she was experiencing significant difficulty organizing her move,
and that it was taking her a particularly long time to complete the
packing stage. After she rejected a number of his offers of assistance, he
appeared at her apartment unannounced to assess the situation and offer his
support. He testified that Ms. Gabors apartment was in chaos and that
she appeared completely overwhelmed. The disordered state of affairs prompted Mr. Suen
to orchestrate assistance for her which felt to him as though he was staging in
an intervention. Although her mother eventually hired movers and a cleaner
to help, Ms. Gabor ended up throwing most of her belongings into boxes
without rhyme or reason and without labelling the boxes. Some of her things
got destroyed in the process.
[196] Ms. Olson
went to Ms. Gabor’s new apartment about a week after she moved in. Unpacked
boxes were stacked everywhere. Even her food was still in boxes. Ms. Gabor
told Ms. Olson that unpacking was just too much for her and she did not
know where to start. Ms. Olson helped her unpack and organize to some
extent. Ms. Gabor also had to rely on assistance from her grandmother, an
aunt, and Mr. Suen to help her finish. Despite all the external help, it
took Ms. Gabor several weeks to unpack.
·
Belly Dancing (2012)
[197] As Ms. Gabor’s
physical symptoms began to gradually improve in the fall of 2012, she started
to increase the number of her belly dancing gigs and resumed giving dance
lessons. She danced for existing restaurant customers and for new clients who
learned of her by word of mouth, from her website or other forms of self‑promotion.
On the rare occasion, Ms. Gabor stepped in as a substitute dancer without
much advance notice.
[198] Dr. Ing
encouraged her daughter to make effective use of a calendar that had an
appointment alarm for her performances. The evidence satisfies me that by this
stage in 2012, Ms. Gabor booked her own dance gigs and prepared and
dressed for them without assistance from her parents or anyone else. That
said, the evidence also shows that it took her hours to get ready for a single
performance and that she adhered to an extensive checklist of what she needed
to do and take to each one, even though much of it was sheer repetition each
time. Despite these safeguards, she also missed a couple of prearranged
performances.
[199] Ms. Gabor
told Ms. Olson that she had marketed her dance business at a local wedding
fair in an attempt to source new opportunities. As the same time, she reported,
and the evidence confirms, that while she was able to participate in the
planning of that and other activities, including her art exhibition at the
Gallery in January 2013 (discussed below), she had to lean on family and
friends in order to execute such undertakings.
[200] I accept
Ms. Gabors evidence that she did her best to claim all of her tips from
dance for income tax purposes. In 2012, she reported gross business income of $16,311.68.
I am satisfied that, of that amount, approximately $12,000 was earned from her
dance performances and lessons.
·
Job in Montreal (Summer 2012)
[201] Ms. Gabor
accepted Mr. Rauschers invitation to join him in Montreal for approximately
six weeks of the summer of 2012 to work on a project for his company.
[202] The
evidence establishes that Mr. Rauscher wanted Ms. Gabor to consider
moving to Montreal, not only to be with him, but also so he could be close‑by
to support her to achieve her pre-Accident aspirations both in academia and as
an artist. While she was in Montreal, he arranged for her to meet with the
director of his doctorate program and one of his professors at Concordia. She
showed them some of the art‑work she had done mostly, if not exclusively,
before the Accident and it was well-received. The director subsequently sent Ms. Gabor
an email, which she did not respond to for months.
[203] With
respect to Ms. Gabors temporary job that summer, Mr. Rauscher was
her manager and accountable to the board members for her work. She was tasked
with designing the decorative visual elements for a new product line of
electronic hookahs. It was remunerative employment. Mr. Rauscher had
confidence in Ms. Gabors creative design capabilities, recounting that
all of the visuals she had made prior to the Accident had been stunning.
[204] Ms. Gabors
involvement in the project was a debacle. She persuasively testified that her
neck and back pain and headaches severely curtailed her ability to sit at her
work station for the extended hours required. She also said she still
struggled with intense fatigue. Tasks that she said would have been simple for
her to do before the Accident seemed overwhelming. Many of them were so
mentally taxing, that they left her exhausted and sometimes in tears.
[205] Ms. Gabor
worked only two to four hours each day and then only a few days per week; the
commitment expectation of the job was significantly greater than that. I
accept Mr. Rauscher’s evidence that his company implemented several
workplace accommodations for her, including modifying her seating. Those
modifications made little difference and she continued to slide off track.
[206] Ms. Gabor
did not have industrial design training. Dr. Lantin testified that it
would not be typical for someone with Ms. Gabor’s education and training
to be hired to design a product intended for the marketplace. Mr. Rauscher
explained that the design tasks assigned to Ms. Gabor were well within the
realm of what she was trained and competent to do. He clarified that Ms. Gabor
was not responsible for the design process per se. Her primary role was
to respond to and implement the input she received concerning desired design changes
to the product. He explained that the fundamental problem was that she was not
able to respond in a manner that appropriately met the design challenges or
enhanced the marketability of the prototype product. He gave convincing examples
of the difficulties that Ms. Gabor displayed in absorbing and following instructions
and generating design ideas, and how she foundered in the collaborative style team
meetings.
[207] Mr. Rauschers
sense was that Ms. Gabors level of performance was more in keeping with a
junior visual designer and not to the standard of a successful graduate from
the masters program at Emily Carr. He recounted that when she was spoken
to about these shortcomings she became unreasonably defensive about her work,
which served to aggravate the larger workplace problem. Mr. Rauschers
evidence, based on his knowledge of what the work entailed and his personal
observations on the scene as it unfolded over several weeks was persuasive and
I accept it.
[208] I further accept
Mr. Rauscher’s testimony that the time he spent with Ms. Gabor in Montreal
made him realize the magnitude of the difficulties she had with focus,
attention, fatigue and her physical pain in a way that he had not appreciated
previously. Her deficiencies in these areas did not fit with his observations
of the strengths and responsiveness she had demonstrated while at Emily Carr.
[209] In the end,
the project was an unmitigated disaster and Mr. Rauscher sold his shares in
the company at an enormous loss.
[210] The defendants
submit that Mr. Rauschers criticisms of Ms. Gabors work performance
in Montreal are emblematic of the judgmental and callous attitude he displayed toward
her and her work. I assess his testimony quite differently. Although Mr. Rauscher
did speak negatively of Ms. Gabors dismaying performance on the Montreal
project, his comments were not offered gratuitously. He was merely being
responsive to questions about those matters and plainly derived no pleasure in
discussing her failings and reliving that unhappy saga. Moreover, the evidence
does not indicate that he was overly harsh in his criticisms to Ms. Gabor at
the time. I find that Mr. Rauscher was a sympathetic employer who tried
to accommodate Ms. Gabors many shortcomings on the job. He was
appropriately balanced, if not restrained, in his articulation of the problems
he unexpectedly encountered with Ms. Gabor in that enterprise.
·
End of the Relationship with Mr. Rauscher
[211] There can
be no question but that Ms. Gabors disappointing performance in Montreal and
Mr. Rauschers steadfast opposition to her greater involvement in belly
dancing added strain to their already weakening bond. Mr. Rauscher
testified that after Ms. Gabor left Montreal their relationship basically
fumbled along to a point where they both understood that it was no longer
working. I find that Ms. Gabor formally ended the relationship when she
returned home from a trip to Spain taken with her parents in November 2012.
[212] The
breakdown of the relationship was stressful for Ms. Gabor. Mr. Suen
testified that as the couples relationship was nearing its end, Ms. Gabor
appeared to be overwhelmed at times and confided that she found it hard. He
described an occasion around that time where she burst into tears in a public
restaurant when speaking to him about her relationship with Mr. Rauscher. After
that, she did not raise the issue again with Mr. Suen and did not cry
about Mr. Rauscher in his presence.
[213] Ms. Gabor
testified about the significant clash in cultural values between herself and Mr. Rauscher.
Dr. Ing recounted how her daughter told her that she had come to the firm
view that Mr. Rauscher was not for her, and had decided to call it off
with him and did so. She was proud that her daughter had stuck to her guns
and stood up to Mr. Rauscher, refusing to accept the religious and
cultural beliefs he had tried to foist upon her.
[214] Dr. Gabor
testified along the same lines. He was aware that Mr. Rauscher held a
conservative view about women that his daughter did not share. He also understood
that Mr. Rauscher was not able to adjust his worldview or curb his negativity
about Ms. Gabors belly dancing. Dr. Gabor believed that his
daughter felt a mixture of upset and relief at finally breaking off the relationship.
·
Exhibition at the Gallery (January 2013)
[215] To ready
the space for her solo exhibition at the Gallery, Ms. Gabor asked that the
Gallery walls be painted a deep red to better showcase her work. Dr. Mills
thought that Ms. Gabors chosen colour brought a stunning and dramatic transformation
to the space. It was the same colour that Ms. Gabor had used for the
presentation of her graduate show.
[216] Dr. Mills
uses a team‑based approach with respect to exhibitions, relying on Gallery
staff and student interns to determine and implement the details and logistics.
Over the course of 2012, she had a few telephone discussions with Ms. Gabor
and sent her about six emails by which they collaborated about the show. Otherwise,
most of their interactions were indirect in that they were channelled through Dr. Millss
staff.
[217] Ms. Gabor
selected and supplied the works for the exhibition. Dr. Millss staff and
interns assumed most of the responsibility for printing, matting and framing her
photographs, were primarily responsible for the physical installation of the
exhibition, oversaw the shipment of Ms. Gabors works, prepared the space
and promotional posters and took care of many other details of the opening. With
input from her mother and Mr. Suen, Ms. Gabor worked with one of Dr. Millss
colleagues to concoct a recipe for traditional Chinarian food that was
incorporated as part of the concept for the art reception. She also
choreographed her dance.
[218] In the months
leading up to the exhibition, Ms. Gabor worked with Ms. Olson to try
to get organized and be ready for the show. She had anticipated that she would
produce new work, including a fresh photo shoot. She had also periodically brainstormed
ideas with Mr. Rauscher and chatted with her father about her proposed
plans.
[219] A few days
before she returned to Lethbridge for the exhibition, Ms. Gabor and her
father discussed what she should bring. Upon her arrival, however, it was
obvious to her father found that she was not prepared.
[220] Dr. Gabor
testified that, in the past, his daughter had embraced her art shows with
enthusiasm and excitement and even revelled in the attendant pressures. This
time, he was surprised at how many things she still had to do before the show.
He found her to be unfocused, disorganized and overwhelmed. Her preparation
appeared to come in last minutes flurries of activity and she was unable to
accomplish what was needed. Dr. Gabor tried to be encouraging but eventually
lost his temper and scolded her to, Get it done.
[221] The
evidence establishes that on the day of the show, Ms. Gabor was thoroughly
overwhelmed, overly emotional and in fits of tears. I accept her evidence
that she had never before felt overwhelmed, nor cried before an art show,
explaining that she would create the art, deliver it to the gallery and that
would be it.
[222] Dr. Ing
testified that in the days leading up to the exhibition, her daughter was flummoxed
by the multitasking required to coordinate the several components. She tried
to help her in a hands-on way. By way of illustration, Dr. Ing
described her daughters botched attempt to make the fabric lanterns that she intended
to incorporate into the show. She had materials strewn out over the table and
was crying and lamenting that she was not able to make them look the way they
should.
[223] I accept Dr. Ings
evidence that her daughter had always been a talented crafter and that the
lanterns she cobbled together were a mess and not reflective of her pre‑Accident
crafting and design talents. Her evidence about her daughters skill in
crafting items was consistent with the testimony of Mr. Rauscher and her
former Emily Carr professors who described the meticulous Chinarian
artifacts she had created for her thesis project.
[224] Hoping to
empower her daughters approach to problem-solving, Dr. Ing encouraged her
to break down the lantern task into steps. They then together strategized how
to implement each step to achieve the look that Ms. Gabor had in mind. After
driving to a fabric store to purchase supplies, mother and daughter assembled the
lanterns. Dr. Ing also helped her daughter sew her costume.
[225] Ms. Gabor
became tearful when asked how she felt about her show at the Gallery. Her
emotional demeanor was genuine. She testified that, on the one hand, she was
proud of her accomplishment because it had posed such an enormous challenge.
On the other hand, she was bitterly disappointed in herself because the project
held so much potential that she had not been able to harness and, instead, she had
rehashed her old work with a few new additions. Even then, she had needed her
parents help with the implementation.
[226] Dr. Mills
testified that the opening night reception was decently attended and well-received,
with people lingering afterward. She considered the show to be conceptually
strong and testified that she would recommend Ms. Gabor to colleagues at
other galleries. It was Dr. Millss perception that the exhibition went
off without a hiccup, and it no doubt did from her standpoint. However, the turmoil
that churned behind the scenes, credibly recounted by Ms. Gabor and her
parents, told a different story entirely.
[227] Ms. Gabor’s
exhibition was comprised of a number of components. There was a projection
screen to project her artwork; her Chinarian artifacts were displayed in
glass cases with text boxes; and her photographs and handmade lanterns lined the
walls. There was a simulated gift shop with Chinarian merchandise. The
defendants assert that given the numerous elements involved in bringing her
show together, it would have been surprising if anyone could manage such an
endeavour on their own. The implication was that Ms. Gabors feeling of
being overwhelmed and her need for considerable assistance were normal and
unrelated to any alleged inability on her part to effectively organize,
multitask or create.
[228] I cannot
accede to this line of argument. In the first place, the submission overlooks
the fact that Ms. Gabor had about one year to prepare for her exhibition.
[229] Perhaps
most compelling is that, although Ms. Gabor had started out with an
intention to create original pieces and made some efforts in that regard, in
the end she produced very little new work for the show. There were essentially
only three new features to the 2013 exhibition: fabric lanterns, some faux Chinarian
food and Ms. Gabors performance of a Chinarian dance to music that
her friend had composed for that purpose. Ms. Gabor ended up relying heavily
on the props, artifacts and photographs that had been part of her thesis
project. She also resigned herself to simply reproducing the contents of the
existing text panels that she had used for her thesis because she was having difficulty
with wording and sequencing. Even then, she required the assistance of her
father with that task.
[230] There was
also Dr. Ings forceful testimony to the effect that, before the Accident
and when Ms. Gabor was much younger and less experienced, she had
participated in complex, juried exhibitions and other solo exhibitions, and had
never before leaned on others in this way. Significantly, she had successfully
created the works and shown her masters project at Emily Carr without the
need for the kind of hands‑on help her parents supplied on this
occasion. Her thesis project had required her to oversee the production and
coming together of the same fundamental elements for the very first time and
within a tight timeline with a great deal riding on the outcome. The
exhibition at the Gallery was very much a redux of her thesis project carried
out at a time where she was without the other attendant pressures of being in
the masters program. Yet, in stark contrast, I find that on this occasion she
was ill‑prepared, disorganized, tearful, distraught and overwhelmed
generally and required assistance to do things she was formerly well-equipped
to do on her own.
[231] Ms. Gabor
performed a traditional Chinarian belly dance at the opening night
reception. Afterward, she made some remarks to those in attendance which her
father had helped her compose. The following Monday evening she participated
in U. Leths Art Now speaker series. On that occasion, she performed her dance,
gave a lecture‑like presentation and participated in a question and
answer period, while donning the persona of a museum curator of the fictitious Chinarian
exhibition. I will refer to this branch of Ms. Gabors presentation as
the Art Now Session.
[232] Several
videos of Ms. Gabor belly dancing were in evidence and were the subject of
an agreed statement of facts, including her dance performance during the Art
Now Session.
[233] Dr. Lantin
viewed the video capturing the Art Now Session. She had an instructive comparative
base‑line to call upon in assessing Ms. Gabors performance because
she had observed her defend her thesis, which was comprised of nearly all of
the same elements. Dr. Lantin had also seen Ms. Gabor give similar
artist talks at MAA proposal gatherings at Emily Carr and in other situations.
[234] Dr. Lantin
pointed out that when Ms. Gabor defended her MAA thesis, she assumed the
persona of an expert on Chinarian culture and of a curator and head of a
mainstream museum. Dr. Lantin recalled that at her thesis defence and the
opening of the graduate show at Emily Carr, Ms. Gabor had deftly inhabited
the expert and curator roles. Her imagination was on point and she was able to
delve more deeply into the stories, even on the fly.
[235] At the Art
Now Session, Ms. Gabor adopted what Dr. Lantin described as a more
narrow approach by assuming only the persona of the museum curator. Dr. Lantin
thought Ms. Gabor’s presentation at the Art Now Session was superficial
and unconvincing. There was no inflection in her speech and the presentation
itself appeared to be very rehearsed, as though she was reading from a script.
To Dr. Lantins mind, the performance lacked gravitas. As well, she
noticed that Ms. Gabor moved in and out of character during the question
period. In that regard, she gave the example of how Ms. Gabor referred to
the pieces in the exhibit as works rather than artifacts, thereby confusing her
role as an artist (works) with her persona as a curator (artifacts).
[236] Additionally,
Dr. Lantin regarded the questions posed to Ms. Gabor to be way too
easy and extremely friendly. She suggested that they were probably planted
with the audience members, which frequently happens at artist talks. What she
noted, however, was that Ms. Gabor did not play with the answers. Dr. Lantin
also noticed that Ms. Gabor had nervous tics that were especially
pronounced at the beginning of her remarks and which she had never seen before.
[237] In Dr. Lantins
view, Ms. Gabors presentation style at the Art Now Session was not as it
had been when she attended Emily Carr. During the defence of her thesis, which
Dr. Lantin acknowledged was a very stressful process, Ms. Gabor had
been more relaxed, playful, creative and fully in character. The clear
implication of Dr. Lantins evidence as a whole was that Ms. Gabor’s
performance at the Art Now Session was inferior to her thesis performance.
[238] More
crucially, Dr. Lantin was disappointed in Ms. Gabors overall progress.
Despite the addition of the new elements such as lanterns and dance, which Dr. Lantin
liked, she did not think that the body of Ms. Gabors work had progressed
sufficiently in the interval since her graduation. Dr. Lantins expectation
was that by this stage, which was close to 20 months since graduation, Ms. Gabor
should have hit it out of the park at the Art Now Session, but she had failed
to do so.
[239] Dr. Lowry
also watched the entire video of the Art Now Session. He too was well-positioned
to provide an evaluation of Ms. Gabors performance. He echoed many of Dr. Lantins
comments, for example that most of the concepts, slides and artifacts had
formed part of Ms. Gabors thesis project. He also regarded the questions
she was asked to be extremely generous and perhaps planted in advance. As had Dr. Lantin,
Dr. Lowry noticed that Ms. Gabor slipped in and out of character a
couple of times, conflating her real life as the artist with the fictitious
curator she was supposed to embody. He too believed she was using a script and
found her diction elevated and stilted.
[240] Unlike Dr. Lantin,
however, Dr. Lowry thought that Ms. Gabor’s persona was deliberately
meant to be that of a ditzy museum curator. He thought her portrayal was good
but needed polishing.
[241] Dr. Lowry
believed that the Gallery had been very generous in permitting Ms. Gabor
to do a solo presentation by invitation. A more typical trajectory for a comparable
young artist would have been to show some of the components of the exhibition,
for example, her beautiful stereoscopic viewer artifact and large photographs,
at group shows as a means of practising and developing her own show. At the
same time, he allowed that obtaining a solo exhibition was also a testament to
the appetite for and quality of Ms. Gabor’s work. He noted further that a
solo show is quite an accomplishment and one that is hard to achieve for any
artist and, all the more, one as young as Ms. Gabor.
·
Ms. Gabors Physical Condition and Treatments (2013 onward)
[242] Many of Ms. Gabors
symptoms continued to improve throughout 2013, with notable progress from the summer
forward in particular.
[243] Despite
the gains she made, Ms. Gabor continued to experience discomfort and
stiffness in her neck and throughout her back, albeit with decreased frequency
and intensity. Her pain became increasingly more manageable and less draining
generally. Ms. Gabors headaches remain tied to flares of her neck pain
and, accordingly, they decreased as her neck pain improved. She now experiences
them only intermittently, although when they do take hold, they zap her energy.
She felt able to scale back her physiotherapy and acupuncture treatments.
[244] Her
disturbed sleep became better. However, her fatigue remained a significant impairing
problem. Ms. Gabor started to use caffeine as a means to help maintain
her stamina during the day. That strategy helped somewhat. Although she still
needs to nap most days, she no longer naps every day and her naps are less
frequent on any given day.
[245] While Ms. Gabors
cognitive functioning continued to improve in 2013, her difficulties with memory,
attention, concentration and processing have persisted. The evidence
establishes that these difficulties commonly arise when she tries to work on
her computer, do her art, or read a novel. Although Ms. Gabor started
once again to read for pleasure in about the fall of 2013, she considers the
prospect of reading and comprehending an academic journal or one of the
theoretical texts she read while a graduate student to be a daunting
undertaking. Even now, Ms. Gabor can still be overwhelmed easily, even by
fairly small tasks, and continues to face considerable difficulties with
multitasking, and with respect to organizing, planning and fully implementing
her plans.
[246] Dr. Ing
and others have identified an apparent lack of motivation and/or drive in that Ms. Gabor
does not seem able to get things together and move herself forward. According
to Ms. Gabor, on a typical day she awakens with the intention of doing
productive work such as researching jobs, preparing a job application, working
on her art, making connections with others in the arts community and updating
the website she uses to promote her belly dancing. As she attempts to complete
one or other of such activities, she eventually fatigues and finds she cannot
remain seated due to her physical discomfort. When these symptoms interfere or
distract her she will usually lie down, go for a walk or go to the gym. On the
days where she has a dance class or performance in the evening, she will
typically need to rest for a while beforehand.
[247] Ms. Gabors
mood also improved with time and the counselling she has and continues to
receive from Dr. Cheung. However, at times she can still become irritable
and feel gloomy and her father says there remains an undertone of sadness to
her.
[248] Ms. Gabors
anxiety with driving has improved considerably. For some time, she has only
felt the need to ask others to chauffeur her around when she feels especially
stressed or is under pressing time constraints to get to her destination.
·
Other Events in 2013 and Beyond
[249] Ms. Gabor
performed at a belly dancing competition in May 2013 in California. At the same
competition the preceding year, she had forgotten to pack certain of the items
she needed for her performance. For this trip, her mother provided her with a
detailed list of what to pack and reviewed it with her over the telephone.
That approach seemed to work well.
[250] Ms. Gabor
won third runner‑up for her performance at the 2013 competition. Over
the course of the ensuing ten months or so, she performed at restaurants, a
gala and at another competition where she won first place in the props
category. She also added pages to her dance website and began using YouTube
and Facebook to promote her business.
[251] At some
point in 2013 Dr. Ing came across a part-time, one‑year contract position
for a fine arts instructor at Kwantlen and suggested to her daughter that she apply.
The application process required that Ms. Gabor submit her recent work on a
CD. Ms. Gabor was interested in the position and began to assemble her
application. However, the timeline to submit it and the requirement of the CD
were apparently too much for her. She was not able to break down the tasks
into manageable pieces and did not follow through with the CD. The job went to
a candidate who had some teaching experience at the post‑secondary level.
[252] Although
the evidence is not entirely clear, it would appear as though Ms. Gabor
applied for another position elsewhere within the same general timeline, but did
not get the job.
[253] Dr. Ing
testified that she discouraged her daughter from pursuing other types of jobs,
for example, in fashion merchandising, because she considered it would be a big
step backwards for her and beneath her qualifications. Ms. Gabor could
not recall precisely, but she may have stopped applying for any type of work after
the spring or early summer of 2013.
[254] I accept Dr. Ing’s
evidence that her daughters impairments and the uncertainty surrounding her
future caused her and her husband to change their retirement plans so they could
continue to provide her with financial support. Dr. Ing retired in 2007
with the intention that she would take on only a few teaching obligations. After
the Accident, she assumed more teaching work than she had planned. Dr. Gabor
was scheduled to retire as Dean in 2012, but has postponed doing so. I find
that, at this stage, neither parent has firm plans to fully retire.
[255] Dr. Gabor
had an option to take his sabbatical in 2014 in Barcelona, Arizona and other far-flung
locales. I am satisfied that he instead seized the opportunity to be in
Vancouver for the allotted period to be near to his daughter and give her
support. I find that a great deal of the assistance and support Ms. Gabors
parents have provided to their daughter since the Accident far surpasses the
degree of help that they typically gave to their formerly self-sufficient adult
child, and that their support has been beneficial to her. Their sustained
extra layer of support, along with the changes they have made to their own
personal plans, are entirely due to Ms. Gabors injuries.
OVERVIEW OF THE PARTIES POSITIONS
[256] The
parties are significantly apart on the quantum of the major types of damages. Their
respective positions on damages will be addressed under the separate heads discussed
later in my Reasons.
·
Ms. Gabors Position
[257] Ms. Gabor’s
position is expressed below in condensed form.
(a) Physical Injuries
Prior to the Accident, Ms. Gabor had experienced intermittent right‑side
shoulder pain and episodic neck and back symptoms. She was asymptomatic when
the Accident occurred. At no time did these symptoms pose physical
restrictions or limitations on her function.
As a result of the Accident, Ms. Gabor sustained a whiplash
injury to her neck that caused both neck pain and severe headaches, together
with several other soft tissue injuries including to her back, hip, wrist and
knee. She suffers from chronic pain as a result.
(b) Other injuries
Ms. Gabor had no pre‑existing psychological condition or
any psychological impairment that impacted her function prior to the Accident.
Nor did she have any cognitive failings or fatigue.
In consequence of the Accident, she developed an Adjustment
Disorder that is currently in partial remission, which encompassed
psychological and behavioural symptoms, including driving anxiety. She also sustained
a mild traumatic brain injury in the Accident which has caused her permanent
cognitive impairment and significant fatigue, and resulted in emotional,
psychological and behavioural sequelae.
She is susceptible to developing a full-blown depressive disorder, is
vulnerable to a relapse of her depression and anxiety symptoms when faced with
stress or failure and is at increased risk of developing a post-traumatic
stress, anxiety or depressive disorder in the event she were to be in another
motor vehicle accident.
(c) Vocational Future
Before the Accident Ms. Gabor had proven herself to be an
exceptional art graduate student and a talented emerging young artist. Her
primary vocational plan upon obtaining her MAA was to teach in an art-related
field at the university or college level and to continue to produce her art.
She was a competitive applicant for such a teaching position and
qualified for tenured professorship. She intended to participate in the labour
market on a full-time basis.
Ms. Gabors permanent cognitive impairments and unyielding fatigue
preclude her from pursuing her planned career in academia and cast doubt on her
future as an artist. Her vocational future is grim; she is confined to working
comparatively low-paying, part-time jobs that are not cognitively demanding.
·
Defendants Position
[258] An overview
of the defendants position follows in point form.
(a) Physical Injuries
The Accident caused Ms. Gabor headaches and soft tissue
injuries to her neck, upper back, low back, hip, wrists and knee, which aggravated
a pre‑existing pain condition that she had in respect of her upper back
region, and that would have surfaced even had the Accident not happened.
Although Ms. Gabor has had and continues to experience periodic
flares of her physical symptoms, they are not limiting recreationally or
vocationally and may further improve.
She does not suffer from chronic pain.
(b) Psychological Injuries
Ms. Gabor sustained psychological injuries as a result of the Accident
manifesting as an Adjustment Disorder, which is now in partial remission, and
an aggravation of her pre‑existing psychological problems of depression
and anxiety.
Due to her pre‑existing depression and anxiety and her
inherent psychological makeup before the Accident, she was vulnerable to
experiencing psychiatric symptoms following any stressful situation. The Accident
provided that stressful trigger which led to her post‑Accident symptoms
of anxiety and depression.
With counselling and without the need for medication, her symptoms
have settled.
Ms. Gabor will have future episodes of anxiety and depression
in response to stressful situations. This would have been the case even had
the Accident not happened.
She has never been disabled for psychiatric reasons after the
Accident.
(c) Brain
Injury/Cognitive Impairments and Fatigue
Ms. Gabor did not suffer a brain injury in the Accident.
Her cognitive symptoms and fatigue are neither permanent nor
disabling, and were caused by a combination of:
i.
her ongoing psychological symptoms;
ii.
stressors in her life related to the transition from a structured
environment (obtaining her MAA) to the workforce; the stress connected to her
relationship with Mr. Rauscher and its dissolution; the stressful effects
of being involved in this litigation; exacerbations of her physical pain; and the
stress of being misdiagnosed as permanently brain injured (diagnostic threat);
and
iii.
related psychological symptoms caused by the aforesaid stressors.
Not all of these factors are related to the Accident.
(d) Vocational Future
Ms. Gabor planned to have a career as a professional artist;
she did not intend to enter the world of academia after completing her MAA,
other than teaching the odd sessional class to shore up her earnings as an
artist.
Alternatively, in the event that her goal was to pursue teaching,
the likelihood of her securing full‑time employment in academia was very
low because the positions are highly competitive and she did not have the
requisite teaching experience.
None of her Accident-induced injuries constitute a disability from
a vocational perspective. Her failure to pursue and obtain work in the field
of fine arts is due to events unconnected to the Accident, such as the break-up
with Mr. Rauscher. The defendants submit that with the assistance of a
vocational consultant Ms. Gabor is capable of launching her art career or
other type of career if she chooses to.
That said, the defendants acknowledge that due to the Accident, Ms. Gabor
experienced a period of disability that delayed her entry into the workforce of
between approximately six and 12 months. The fact that she has elected to
remain out of the workforce thereafter, except for her belly dancing business,
is not the defendants fault.
With the assistance of vocational counselling, proper management of
her underlying psychiatric issues and the conclusion of this case
(theoretically bringing the litigation effect to an end), Ms. Gabor has
the same capacity to earn income as she had before the Accident.
(e) Mitigation
Ms. Gabor’s failure to actively pursue a career in the years following
the Accident is due to a lack of motivation that flows from a loss of
confidence and interest in her previous goals, and is not due to the cognitive
inability to do so. As a result of non‑Accident related events, she has
lost all drive to move forward and pursue a career in art and has not made a
reasonable attempt to find appropriate alternate employment.
In addition, Ms. Gabor has neglected to follow the medical
recommendation that she see a kinesiologist to improve her physical
conditioning and pain.
The
foregoing conduct and inaction on Ms. Gabor’s part constitutes a failure
to mitigate her damages.
MS. GABORS PRE-ACCIDENT CAREER ASPIRATIONS
AND POTENTIAL
[259] Of the
many disputed issues is whether Ms. Gabor intended to pursue a career
teaching art-related classes at a post-secondary institution once she completed
her masters degree. Linked to that is the issue of whether she would have
been qualified to land such a position.
[260] Ms. Gabor
insisted that upon acquiring her MAA, she was going to teach in an art‑based
program at a university or college level and nurture her artistic side by
continuing to create art. More particularly, she said she intended to apply
for multiple sessional instructor positions as a means of gaining a foothold in
academia and gradually add to her sessional course load in order to achieve her
overarching objective of teaching full time, landing on tenure track and
eventually attaining tenure.
[261] Ms. Gabors
evidence is that she had understood that a masters degree was essential in
order to be qualified to teach and that was a principal reason she had followed
the graduate school path. She credibly maintained that she was prepared to
move anywhere in Canada to pursue a teaching opportunity, but in a measured and
planned way: starting by applying locally for sessional positions and
broadening her search, if and as needed.
[262] The
defendants argue there is little reliable evidence from which to determine the
direction that Ms. Gabor would have taken in her career and whether she would
have been successful in her chosen path, had the Accident not occurred. Their
companion assertion is there is a paucity of evidence, beyond Ms. Gabor’s
own say-so, to indicate that becoming a professor with tenure in an art program
at a post-secondary institution was her main career objective. The defendants
submit that Ms. Gabors true intention was to be a professional artist,
and not an art professor. Their argument is fastened, in part, to the premise
that continuing to create art and pursuing a full-time career in academia are
mutually exclusive endeavours. As was thoroughly explained by Dr. Lowry,
working as an artist and teaching art‑related or studio art courses,
which refers to courses that instruct on technical art and are practice-based,
are compatible and even complementary pursuits.
[263] In support
of their position that Ms. Gabor did not have a fixed intention to pursue
a full‑time career in academia, the defendants point out that she did not
seek any teaching positions in the interval between obtaining her undergraduate
degree and commencing her graduate work. That submission is unpersuasive for
at least two reasons. First, I find that Ms. Gabor was concentrating
on building her art portfolio to enhance her chances of entry to graduate
school. Second, there was no evidence to suggest that an individual holding an
undergraduate degree would be qualified to teach; the evidence is to the
opposite effect, namely that a masters degree was essential.
[264] The
defendants also argue that it is significant that when she attended Emily Carr,
Ms. Gabor applied to work as a research assistant rather than as a
teaching assistant. That submission does not advance the defendants case in
light of Dr. Lowrys undisputed evidence that, at that time, there were no
teaching assistant positions available at Emily Carr.
[265] There is
ample evidence of Ms. Gabors ambition to be a practising artist. The testimony
of Drs. Lantin and Lowry, Ms. Gabors parents, Ms. Kavanagh and Mr. Rauscher
all point to the fact that before the Accident, she was an emerging talented
artist with an impressive exhibition pedigree, particularly in light of her
young age. Compared to the rest of her graduating class at Emily Carr, Dr. Lowry
considered Ms. Gabor to be one of the students who would most likely
follow a career as an artist and believed she had strong potential to be successful
at it. This evidence does not mean, however, that Ms. Gabor had chosen the
life of an artist to the exclusion of teaching art.
[266] I find
that the primary reason Ms. Gabor decided to obtain her MAA in the first
place was to acquire the necessary qualifications to be able to teach in an art
program at a college or university. She also envisioned that teaching in a
studio environment would provide her with a stable career platform to further
develop her own art. In order to gain admission to graduate school at Emily
Carr and, I infer equally prestigious art schools, Ms. Gabor needed to
build a strong art portfolio of high quality work. As Dr. Lowry put it,
the competitive edge for admission to Emily Carr is more about the applicant’s
artwork than his or her undergraduate transcripts. It therefore made sense for
Ms. Gabor to focus on producing her art and developing recognition in the
art community while she worked at the Gallery between her undergraduate and
graduate studies.
[267] During the
time that Ms. Gabor was finishing her MAA, she and Dr. Lowry
discussed her future plans on at least a couple of occasions. She told him
that she wanted to be an artist and an art-studio teacher and sought his advice
on how best to launch her career. Ms. Gabor also asked for Dr. Lowrys
permission to shadow him while he taught as a means of obtaining teaching
experience. He would probably have allowed her to do so except that he was
about to leave on his sabbatical.
[268] Mr. Rauscher
confirmed Ms. Gabors intention to pursue a career in academia after
graduation. As mentioned, one of his sources of frustration after the Accident
was that she appeared to have put aside her teaching aspirations in favour of elevating
her belly dancing sideline to the forefront.
[269] Before the
Accident, Ms. Gabor also spoke to Mr. Suen about her plans to become
an art professor. The collateral evidence of Ms. Gabors parents also persuasively
attested to Ms. Gabors pre-Accident intention to follow in their
footsteps in academia.
[270] Further
telling is that, prior to the Accident Ms. Gabor had applied to Kwantlen
for a part‑time position as an instructional assistant. Her separate
letter to the President of Kwantlen provided additional evidence of her pre-Accident
intention to secure a studio teaching position. The defendants suggest that
her remark in the letter to the effect that the heart of her career was
continuing to practise as a visual artist is somehow inconsistent with her goal
to be a studio instructor. That submission rests on a misunderstanding of the
synergy between being an artist and a studio art professor; the two often go
hand in glove.
[271] In his
capacity as the Assistant Dean, Dr. Lowry was part of the hiring committee
for the recruitment of sessional and tenure track faculty. He also
participated in job placements for sessional instructors at a college on
Vancouver Island. Dr. Lowry observed that, historically, art schools like
Emily Carr had actually been run by artists and not by professors. He
explained that in order for new MAA graduates to teach studio classes, it is
essential they keep current with their own vibrant art practices and be visible
in the art scene.
[272] Dr. Lowry
would not agree that hiring preference is invariably given to applicants who
have previously taught. He was emphatic that prior teaching experience was
only one factor considered in the hiring process of sessional instructors and
that the lack of it was not a bar to obtaining a sessional job, particularly in
the areas of art and design.
[273] Dr. Lowry
explained there was a strong desire at Emily Carr and other art universities to
hire artists to teach in order to ensure the school keeps connected to the
contemporary art scene and remains relevant. He elaborated that artists with
no previous teaching experience may in fact be preferred over an applicant who
has been teaching but is not an artist. To emphasize the point, Dr. Lowry
noted that Emily Carr does not recruit its studio instructors from among the
pool of students who have attended university to learn how to be high school
and college art teachers. This is because they are academics and do not
participate in the art world.
[274] According
to Dr. Lowry, Emily Carr also values hiring its own recent graduates into
the sessional teaching pool despite their lack of teaching experience. He was
aware that a few students in Ms. Gabor’s class at Emily Carr had secured sessional
teaching positions after graduation: one in Victoria and another at the Okanagan
campus of the University of British Columbia. He did not recall any remarkable
differences between their qualifications and those of Ms. Gabor. In evaluating
Ms. Gabors resume from a 2011 point of view, Dr. Lowry considered it
to be meatier than those of other graduate students, and regarded her as a
competitive candidate for sessional work. He said he would have gone beyond
standing as a mere reference for Ms. Gabor and would have done all he
could to help her secure a teaching position.
[275] Ms. Kavanagh
was also asked to consider Ms. Gabor’s resume as though she were applying
for a teaching position at U. Leth in 2011. It was her assessment that
based on Ms. Gabor’s educational qualifications and her extensive
exhibition record as an artist, had she applied in 2011 she would have been
qualified for a sessional teaching position. As had the other witnesses from
the world of academia, Ms. Kavanagh noted that most new graduates start off
in a sessional teaching role.
[276] Diane Naugler,
the Associate Dean of the Faculty of Arts (which incorporates the Fine Arts
Department) at Kwantlen, gave evidence along the same lines. She explained
there were departmental preferences for candidates with teaching experience, as
well as preferences for applicants who have active and current studio practices.
Dr. Naugler confirmed that a lack of teaching experience was not a
barrier to obtaining a sessional position at Kwantlen, and that applicants
without experience have been hired at Kwantlen in the past.
[277] Dr. Lowry
testified that with the attainment of an MAA, Ms. Gabor was qualified to
teach fine arts studio courses pretty much anywhere in the country. Although he
confirmed that she was qualified to be on tenure track, he agreed that those
placements were even more difficult to come by than sessional teaching
contracts, which themselves were highly competitive. He agreed that Ms. Gabor
would have found it most difficult to obtain a tenure track position straight
out of school and without any teaching experience. Sessional instructorships,
while still very competitive, were more attainable for recent graduates. Dr. Lowrys
personal experience demonstrated the point; he had worked as a sessional
instructor for eight years before he secured a tenured position at Emily Carr. Based
on his experience with graduate students and his knowledge of the prevailing
conditions in the market in the Lower Mainland, his view was that, by now, Ms. Gabor
would have obtained sessional positions with one or more of the local colleges
or universities.
[278] It was
also Dr. Lowry’s evidence that the recent growth in art schools across
Canada has given rise to an increased need to hire instructors. He observed
that most universities have shifted to hiring more sessional instructors and
fewer tenure track professors, and that there was substantial turnover in
sessional positions.
[279] Ann
Stobart is the Human Resources Director at Emily Carr and is responsible for the
recruitment of faculty members and sessional instructors. Her testimony bolstered
the evidence of Dr. Lowry, Dr. Naugler and Ms. Kavanagh that
there is no requirement for sessional instructors to have prior teaching
experience. She also explained that once an instructor teaches a sessional
course a few times they are given priority to teach future courses. Ms. Stobart
confirmed that most of the full‑time faculty at Emily Carr started their
teaching careers as sessional instructors.
[280] Dr. David
Atkinson, whom Ms. Gabor wrote to in the spring of 2011 in his capacity as
the President of Kwantlen, is currently the President of McEwan University in
Edmonton. He has had held various senior administrative positions at other
universities across Canada. In his capacity as a university president, Dr. Atkinson
has little involvement in hiring faculty. However, when he was the Dean of Arts
and Sciences at the University of Saskatchewan, he was more directly involved
in assessing applicants and making hiring decisions.
[281] According
to Dr. Atkinson, Ms. Gabor would have had to start her academic
career by obtaining a sessional teaching position. He agreed that those
positions were competitive and confirmed the point that teaching experience was
not always necessary to secure a sessional teaching job. Sessional positions were
often filled on a last minute basis which presented a good opportunity for
newer graduates to obtain teaching experience.
[282] Dr. Atkinson
spoke highly of Ms. Gabor’s resume and said that, on paper, she appeared
to be an excellent graduate with significant potential.
[283] Dr. Lowry
testified that Emily Carr is the lowest paying university in the country.
According to Ms. Stobart, sessional instructors for studio courses at
Emily Carr are paid $4,800 per course, per semester. She explained that at Emily
Carr faculty are placed on a salary grid based on their level of experience and
seniority, ranging from $63,000 at the low end to $88,000 at the top step. The
compensation package for faculty members included additional benefits valued at
15 to 18%.
[284] Dr. Naugler
testified that sessional instructors at Kwantlen receive $5,800 per single
semester sessional course. The annual earnings of full‑time Kwantlen faculty
members are calculated on a step scale that ranges, depending on experience,
from approximately $58,000 to 88,343, exclusive of benefits.
[285] Ms. Kavanagh
testified that a sessional instructor at U. Leth is paid approximately $5,000
to $6,000 per course. Contract instructors, who are hired on a fixed-term contract,
are paid approximately $60,000 on a prorated basis. Once an instructor obtains
a tenure track position, the rate of pay increases and can double in
approximately 15 years. She testified there was no ceiling for the salary of a
tenured professor, which can reach as much is $150,000 to $200,000. It was her
understanding that salaries for tenured professors across the country at
different institutions were substantially similar.
[286] Dr. Lowry
confirmed that the job of artist does not exist. He agreed that making a
living solely from one’s art is a complex proposition because the art world
is a fluid and uncertain place. He testified that many visual arts/fine arts instructors,
including full‑time tenured professors, supplement their teaching income
with earnings related to their art. Those earnings are derived from sources
such as art sales, artist fees paid by galleries, honorariums or fees for
exhibition work (like those that Ms. Gabor has received over the years) and
in respect of their work on various art projects. In that latter vein, he and Dr. Lantin
hire students and artists all the time" to help with their grant‑funded
projects.
[287] Dr. Lantin
testified about the numerous jobs available for individuals with Ms. Gabor’s
qualifications and to her belief that Ms. Gabor could have worked in a
number of different art‑related capacities. One example she gave was as a
research assistant for an established artist, however, she did not have
reliable evidence about the remuneration of that position. Ms. Lantin testified,
and I accept, that her friends who work as professional artists earn in
the range of $50,000 per year.
[288] In
addition to her preparedness to help Ms. Gabor find a job in any way she
could, Dr. Lantin testified she would have hired her as a research
technician in the research centre. It was a four day a week position with an
annual salary of $55,000, and was filled by one of Dr. Lantins other MAA
students.
[289] Dr. Lantin
and Dr. Lowry were both well-positioned to comment on Ms. Gabor’s
strengths and weaknesses in relation to the art world and to achieving a career
in academia. Their positive evidence powerfully speaks to her artistic
competence and to her attributes and qualifications suitable to academia and
with respect to other art-related jobs and projects.
[290] The
defendants say that, before the Accident, Ms. Gabor would have continued
to pursue a career as a working artist and would have supplemented her earnings
with other part‑time work, which may have included technical services,
curator services, graphic design, sessional teaching and the like. My
assessment of the evidence supports a reversal of emphasis. That is, I find Ms. Gabor
would have pursued teaching positions as her priority and would have continued
to do her art in the background, no matter what her employment was at any given
time.
[291] To
conclude, Ms. Gabor’s primary pre-Accident vocational goal was to pursue a
full-time career in academia, ultimately as a professor with tenure. She had
discussed effective strategies to realize her teaching objective with her
parents, Dr. Lowry, Mr. Rauscher and likely others. She appreciated
that building up a sessional course load would take time and that ascending to
tenure track and obtaining tenure would take considerably longer. As attested
to by several of the lay witnesses, her goal had been long in the planning and was
firmly entrenched before the Accident.
[292] Ms. Gabor
envisioned starting out by seeking as many sessional positions as possible and
to pursue other art‑related positions in public or private galleries, as
a graphic designer, or as a participant in other art‑related projects,
until such time as she was fully occupied with teaching work. I accept her
evidence that, if necessary, she would have moved elsewhere in Canada to take
advantage of teaching opportunities. All the while, she planned to continue creating
her art; a passion that, in turn, would have enhanced her qualifications and prospects
for teaching positions.
EXPERT EVIDENCE
·
Accepted Diagnostic Criteria for Mild Traumatic Brain Injury
[293] As
mentioned, a pivotal issue in the case at hand is whether Ms. Gabor
sustained a mild traumatic brain injury from the Accident. There was consensus
among the medical experts qualified to give opinion evidence on brain injury
and its sequelae with regards to the diagnostic criteria for mild traumatic
brain injury.
[294]
Accepted criteria are established by various entities such as the World
Health Organization, the Centres for Disease Control and Prevention and the
American Congress of Rehabilitation Medicine (the ACRM"). The common
elements mandate the presence of at least one of the following symptoms at the
time of the trauma/accident:
● loss
of consciousness
● loss of memory for events
immediately before and/or after the accident
● any alteration in mental state at
the time of the accident (for example, disorientation, confusion, feeling
dazed)
● focal
neurological deficits that may or may not be transient
[295] Importantly,
the compulsory features endorsed by the ACRM recognize an individuals self-report,
as distinct from an objective finding, of loss of consciousness, loss of memory
and/or an alteration in mental state.
[296] The
experts agreed that no other area of medicine is as controversial as mild
traumatic brain injury. This is because the constellation of unwelcome cognitive,
psychological and physical symptoms that are consistent with mild traumatic
brain injury, such as fatigue, headache, dizziness, drowsiness, irritability, depression,
anxiety, insomnia and cognitive deficiencies are not unique or specific to a mild
traumatic brain injury. They are present in the general population and can arise
from conditions that are wholly unrelated to brain injury, such as physical or
psychological trauma. In fact, many other afflictions can have a more negative
effect on neuropsychological functioning and memory than does mild traumatic
brain injury.
[297] Because
the symptoms consistent with mild traumatic brain injury can be experienced by
non-brain injured patients who suffer from depression, anxiety, chronic pain or
major life stressors, it is erroneous to assume that persistent symptoms of
that kind are necessarily the direct or indirect consequence of an injury to
the brain. Accordingly, it is not permissible to fasten a diagnosis of mild
traumatic brain injury solely to the presence of post-accident symptoms that
are consistent with such injury (and which are often referred to collectively
as post-concussion syndrome); one or more of the acknowledged diagnostic
criteria must also be present.
·
Plaintiffs Experts
(a) Dr. Elsie Cheung
[298] A few
weeks after Ms. Gabor began treatment with Ms. Olson, she started receiving
psychological counselling from Dr. Cheung. Dr. Cheung has both a
Master and Doctorate of Clinical Psychology. She has studied theories of
depression and has treated patients suffering from a wide spectrum of
psychological ailments in the aftermath of injury. Dr. Cheung has been in
private practice since 2003. She testified in her capacity as Ms. Gabor’s
treating psychologist, and provided an expert opinion dated March 14, 2014.
[299] Since
their initial appointment, Ms. Gabor and Dr. Cheung have had more
than 50 sessions together. Ms. Gabor participated well and was engaged in
therapy.
[300] When Dr. Cheung
first encountered Ms. Gabor, her presenting issues encompassed an array of
physical difficulties and pain. She also showed reduced motivation, reduced
interest in activities and reduced energy, together with feelings of being
overwhelmed. Problems with memory, reading and focus, and other cognitive impairments
were also apparent. As well, Ms. Gabor was expressing depressive symptoms
and experiencing some post‑traumatic stress disorder-like symptoms, such
as nightmares and anxiety related to driving and being a passenger, intrusive
images of the Accident and general distress related to the circumstances of
being injured and feeling derailed from pursuing her future goals.
[301] Dr. Cheung’s
understanding from Ms. Gabor was that her major vocational goal was to
pursue academia, more particularly, to teach in an art department at a post‑secondary
level. During their early sessions, Ms. Gabor’s symptoms were so acute
and her physical problems were so burdensome, that Dr. Cheung refrained
from raising the matter of her pursuing her vocational goal. Later, when she broached
that topic, Ms. Gabor would become very emotional and would appear to shut
down. In time, Dr. Cheung found that Ms. Gabor was able to discuss her
future career plans a little bit.
[302] In about
December 2011, Dr. Cheung diagnosed Ms. Gabors psychological
condition as an Adjustment Disorder with Mixed Anxiety and Depressed Mood
(Adjustment Disorder). This diagnosis pertains to Ms. Gabor’s mood and
psychological condition and not to her cognitive issues. Dr. Cheung
explained that an adjustment disorder is a reaction to a stressor that encompasses
a number of psychological and behavioural symptoms. Her diagnosis of Ms. Gabor
entailed symptoms of depression and anxiety, driving anxiety and intrusive
images and nightmares of the Accident.
[303] In Dr. Cheung’s
opinion, but for the Accident, it is unlikely that Ms. Gabor would have
developed an Adjustment Disorder.
[304] Dr. Cheung
set several treatment objectives. In addition to addressing Ms. Gabor’s
depressive symptoms, driving anxiety and her irritability, they included
providing her with strategies for pain management and memory difficulty, and
encouraging her progress towards her career goals. Dr. Cheung used
cognitive-behavioural techniques and encouraged Ms. Gabor to resume her pre‑Accident
activities.
[305] Like Ms. Olson,
Dr. Cheung noted that Ms. Gabor had great difficulty following
through and executing plans. Despite working with her to improve her focus and
the implementation of plans, in Dr. Cheungs view those impairments did
not get much better.
[306] Over the
course of treatment, Ms. Gabor reported substantial progress in her
physical symptoms and the frequency and level of pain. Her mood became less
depressed, anxious and irritable, her nightmares lessened and her sleeping
improved. Also positive, was Dr. Cheung’s observation that cognitive
therapy improved Ms. Gabor’s significant driving anxiety to the point
where she was able to drive in most situations. Nevertheless, she remained
anxious and uncomfortable while driving and continued to use friends or paid
services to transport her from time to time.
[307] Although Ms. Gabor
enjoyed progress on many fronts, Dr. Cheung observed that she continued to
struggle with her cognitive impairments and intense fatigue and had substantial
difficulty coping with stress. Dr. Cheung has tried to help Ms. Gabor
address her fatigue by providing her with education and discussing ways to
improve her energy, sleep hygiene and to generally manage the fatigue. It is Dr. Cheungs
evidence that there has not been any meaningful improvement in Ms. Gabors
fatigue. Dr. Cheung also confirmed that the same cognitive problems Ms. Gabor
complained of when they first began their appointments many years ago have
essentially persisted.
[308] Whether
due to fatigue, cognitive deficits, or otherwise, Dr. Cheung has observed Ms. Gabor
blank out or go quiet for several minutes and appear to simply lose focus
during their appointments. Her perception is that these episodes occur when
their discussions turn to more complex issues, such as how Ms. Gabor will
cope with her future. Dr. Cheung confirmed that these episodes are ongoing
and currently happen during treatment.
[309] At the
time of writing her report, Dr. Cheung considered Ms. Gabor’s Adjustment
Disorder to be in partial remission. That meant that, although some of her
symptoms may have resolved, she still experiences ongoing symptoms but they no
longer meet the full criteria for Adjustment Disorder. Among the cluster of Ms. Gabor’s
active residual symptoms are her inability to cope with stress, becoming overwhelmed
easily, increased anxiety with driving when rushed, reduced self-confidence, fatigue
and possible denial of her cognitive difficulties. Although a full diagnosis
is no longer warranted, Ms. Gabor is not in full remission.
[310] Dr. Cheung
testified that Ms. Gabor is now less certain about her future vocational
direction and the prospect of attaining her pre-Accident aim of securing a position
in academia. With respect to her art, she testified that Ms. Gabor has
difficulty developing and executing ideas and does not appear to have made much
progress.
[311] Dr. Cheung
regards Ms. Gabor’s fatigue and ongoing cognitive difficulties as her
primary vocational barriers. She elaborated that the fatigue would undermine Ms. Gabor’s
ability to fully pursue a demanding and competitive academic career. She also
opined that Ms. Gabor’s reduced ability to cope with stress would make
stressful, time-pressured or highly competitive work unsuitable. Dr. Cheung
deferred to the appropriate vocational specialist for further commentary on the
impact of Ms. Gabor’s cognitive hurdles to her future employment.
[312] Dr. Cheung
believes that Ms. Gabor’s cognitive deficits are permanent. She suspects
that Ms. Gabor has been slow to acknowledge her cognitive difficulties and
that she tries to minimize them in therapy. It is Dr. Cheungs fear that Ms. Gabor
has not truly recognized her impairments on a deeper psychological plane, and provided
a number of examples that I find support her impression. It is also Dr. Cheungs
opinion that once Ms. Gabor comes to appreciate the extent of her
cognitive deficits, the fact that they are likely permanent and the adverse
implications they have to her vocation and life generally, she is vulnerable to
developing a full‑blown major depressive disorder.
[313] Dr. Cheung
also opined that Ms. Gabor remains vulnerable to a relapse of her
depression and anxiety symptoms when faced with stress or failure. She holds the
further view that, in all likelihood, Ms. Gabor is now at increased risk
of developing a post-traumatic stress, anxiety or depressive disorder in the
event she were to be in another motor vehicle accident.
[314] Ms. Gabor
told Dr. Cheung that as a teenager she had a bout of depression that
lasted for a year and that she had taken Prozac. Dr. Cheung was also made
aware by Ms. Gabor that she had anxiety a few years prior to the Accident
for which she received counselling, in part, to discuss pursuing graduate
school. Dr. Cheung does not recall, nor did she chart, Ms. Gabor telling
her about the checking behaviours that she had raised with Ms. Scott.
[315] The
medical records pertaining to Ms. Gabor’s episode of depression when she
was a young teen were not in evidence. Accordingly, none of the experts had
the benefit of reviewing them. Nor had Dr. Cheung seen Ms. Scott’s
records before she wrote her opinion. She agreed to the general proposition that,
depending on what Ms. Scott’s records might contain, they could have been
relevant to her opinion. Dr. Cheung clarified, however, that she had since
had an opportunity to read those records before she testified at trial, and that
the content of them did not change any part of her opinion.
[316] It was
suggested to Dr. Cheung in cross-examination that the content of Ms. Scott’s
records could affect her opinion as to the causation of Ms. Gabor’s Adjustment
Disorder. In disagreeing with that proposition and holding to her opinion, Dr. Cheung
pointed out that Ms. Scotts records do not reflect a formal diagnosis of
any psychological condition pertaining to Ms. Gabor. She added that those
records did not even indicate whether Ms. Gabor’s symptoms at that time
were even of clinical severity. For those reasons, Dr. Cheung did not
know whether Ms. Gabor had suffered from a genuine anxiety disorder at the
time she was being counselled by Ms. Scott. She required more information
about a possible diagnosis by Ms. Scott before she would be prepared
to agree that the counselling notes could affect her opinion.
[317] In the
context of this exchange, Dr. Cheung made the important point that the
mere fact that Ms. Gabor went to see a psychologist for counselling
does not mean that she suffers from a diagnosable psychological condition.
[318] Defence
counsel asked Dr. Cheung whether she would agree that, because of Ms. Gabor’s
episode of depression at age 13 and whatever she had been treated for by Ms. Scott,
Ms. Gabor was at a greater likelihood of developing anxiety and/or
depression regardless of the Accident. Dr. Cheung answered that while she
had not seen the clinical records of treatment when the plaintiff was 13, she read
a notation in one of the expert reports in this litigation to the effect that
the teenage depression related to Ms. Gabor’s hormonal changes. She
testified that, assuming that were the case, she would not expect Ms. Gabors
episode of depression to represent a vulnerability marker for depression, and said
it would have no predictive value for the recurrence of a depressive disorder. Rather,
it was her expectation that Ms. Gabor’s hormones would stabilize and
resolve. Dr. Cheung also emphasized that this prior instance of
depression occurred nearly twenty years earlier and if there had been a strong
vulnerability, one or more depressive episodes would have surfaced within that
period. Finally, Dr. Cheung would not agree that the symptoms of the type
charted by Ms. Scott amount to a marker of future psychological vulnerability.
[319] The
defendants denounced Dr. Cheungs independence as an expert. They assert that
she repeatedly adopted the role of an advocate for Ms. Gabor and that many
of her answers, particularly those given in cross-examination, lacked the requisite
impartiality of an expert. The defendants approach in advancing this line of
attack was, in essence, to identify bits of Dr. Cheungs testimony that were
unhelpful to their case and then attempt to neutralize them by making the blanket
assertion that, in each instance, her answers revealed that she was advocating
for Ms. Gabors litigation position. The tactic did not yield benefits
for the defence. I would add that some of the extracts of Dr. Cheungs
evidence offered by the defendants as examples of her so-called impartiality
were summarized by them inaccurately or unfairly in final submissions.
[320] On the
whole, the instances identified by the defendants as demonstrating Dr. Cheungs
alleged misplaced advocacy were underwhelming. The assertion of partiality on Dr. Cheungs
part does not withstand scrutiny and is groundless on the evidence.
[321] I found Dr. Cheung
to be a credible, impartial and balanced witness who was able to provide the
Court valuable insight into the complexity and potentially far‑reaching
ramifications of Ms. Gabors post-Accident psychological condition.
(b) Dr. Nicholas
Bogod
[322] Dr. Bogod
is both a clinical psychologist and clinical neuropsychologist. He is a staff
neuropsychologist at Vancouver General Hospital where he heads the
neuropsychology service that provides comprehensive neuropsychological consults
to the departments of neurology and neurosurgery. In addition, Dr. Bogod
teaches neurology residents, trains and supervises neuropsychological interns
and is regularly involved in the treatment of brain injured patients at a major
trauma hospital. He has also conducted research on the topic of brain injury
rehabilitation and has had his articles published in peer-reviewed journals.
[323] Dr. Bogods
detailed and current knowledge in his field was impressive and particularly
well‑demonstrated in his responses to questioning about whether certain
literature on brain injury was considered to be authoritative.
[324] Dr. Bogod
provided two written opinions pertaining to Ms. Gabor’s neuropsychological
and psychological status based on two separate neuropsychological assessments. The
testing conducted for each assessment was spaced over two days due to Ms. Gabor’s
fatigue.
First Report
[325]
Dr. Bogod’s first report, dated August 13, 2012, is based on the
neuropsychological testing of Ms. Gabor he carried out on July 9 and 16,
2012.
[326]
In terms of her recollection of the Accident, Ms. Gabor told Dr. Bogod
that out of the corner of her eye she saw something coming at her that she
could not avoid. She recalled the sound of the impact. She relayed that she
was unsure whether she actually lost consciousness, but said there was a gap in
her memory because her next recollection was of glimpses of the police and of
being assisted out of her vehicle by an officer as she believed that her drivers
side door would not open. She reported feeling very shocked and crying at the
scene. She described the ambulance crew as being dismissive. Ms. Gabor
told Dr. Bogod she had a poor memory for the details immediately before
the Accident, that her recall of that evening was still a blur and her memory
of the first few months afterward was patchy.
[327]
Dr. Bogod measured significant cognitive symptoms and prominent deficits.
In his words:
Overall, Ms. Gabor presents currently with significant
cognitive symptoms across multiple domains of ability with prominent deficits
in sustained and divided attention, processing speed, and word finding/fluency,
variable verbal and visual learning and memory (that may be secondary to
attentional issues), and some areas of executive dysfunction (that may at least
partially reflect her more fundamental deficits in attention and processing
speed).
[328] Dr. Bogod
found that Ms. Gabor displayed persistent language difficulties (naming,
fluency). In his view, her cognitive impairments in various attentional
domains, processing speed, language, memory and executive functioning and her self-reported
difficulties with slowed processing, concentration, multitasking, expressive
language, and feeling easily overwhelmed were consistent with the sequelae of
traumatic brain injury.
[329]
Dr. Bogod commented on Ms. Gabor’s reports of significant and
pervasive post‑Accident fatigue, which appeared to be exacerbated by
physical and mental activity. He observed that she seemed very fatigued during
his evaluation. He found that her frequent lapses in attention and her difficulty
maintaining focus worsened with fatigue. Sometimes her eyes were closed and it
looked as though she nodded off, especially when she performed the more passive-type
tasks. That said, Dr. Bogod was very clear that at no time during testing
did Ms. Gabor actually nod off entirely.
[330]
Dr. Bogod also noted the following with respect to Ms. Gabors
psychological status:
A broad-based psychological inventory (PAT) revealed some
tendency to minimize psychological issues but nevertheless suggested
significant depressive and anxious symptomology and concerns around physical
functioning and health matters in the context of a generally balanced
personality style and a number of supportive social relationships. The overall
profile suggested the possibility of a DSM-IV-TR diagnosis of Adjustment Disorder
or Major Depressive Disorder.
In summary, interview and
questionnaire measures suggested some residual symptoms of PTSD at this time
and evidence of significant depressive and anxious symptomology sufficient to
disrupt functioning. This could be characterized as a DSM-IV-TR Adjustment Disorder
with Mixed Anxiety Depressed Mood […] Chronic, but in my opinion she is
better characterized at this point is having a DSM-IV-Diagnosis of Major Depressive
Disorder, Moderate. This would be classified as recurrent if the reported
episode at age 13 was confirmed as a true depressive episode, or single episode
if not
combined with a DSM-IV-TR diagnosis of PTSD in partial remission
[331] Ms. Gabor
informed Dr. Bogod about her psychological disturbance of depression that
she experienced at age 13. She said that she had been told her condition was
hormonal in nature, for which she was treated with Prozac for about a year. Dr. Bogod
did not think that the pre-Accident history and documentation he reviewed
suggested that Ms. Gabor had any psychological disorder at the time of the
Accident. He reasoned that it followed that the psychological issues she was
experiencing at the time of his initial evaluation in July 2012 were directly
attributable to the Accident and its sequelae.
[332] Dr. Bogod
opined that Ms. Gabor’s post-Accident psychological issues were
sufficiently severe to have a possible negative influence on her cognitive and
psychosocial functioning. He recommended that she receive ongoing treatment
for those symptoms.
[333] It was
unclear to Dr. Bogod whether Ms. Gabor’s significant sleep disruption
after the Accident was related to a post-injury sleep disorder, or alternatively
was secondary to pain and physical discomfort, or was secondary to mood and
anxiety symptoms, or a combination of those elements. He recommended that if
her sleep difficulties did not improve concomitantly with improvement in her
pain and psychological symptoms, a referral to a sleep clinic for expert
assessment may be necessary. Dr. Bogod was equally unclear about whether Ms. Gabor’s
fatigue symptoms were related to poor sleep, pain, psychological distress,
increased cognitive effort due to cognitive limitations, or some combination thereof.
Because there was no evidence of those symptoms being present before the Accident,
he concluded they were the direct consequence of the Accident and/or its
sequelae. He recommended consultation with Ms. Gabors treating
physicians concerning the etiology and potential treatment avenues for her
fatigue.
[334] Dr. Bogod
acknowledged that chronic pain such as headache; physical issues; psychological
distress, particularly where it is severe and persistent; and sleep
disturbance/fatigue, can have a detrimental influence on cognitive performance,
which can be more pronounced on the attentional and processing speed domains. He
was unable to determine whether Ms. Gabors subjective and objective
cognitive issues were a consequence of direct injury to the brain versus other Accident-related
issues (i.e. pain, psychological disturbance, sleep issues/fatigue), or a
combination.
[335] Dr. Bogod
opined that Ms. Gabors significant cognitive impairments, combined with
her fatigue, pain and psychological disturbance, indicated that at the time of
his assessment, she was disabled from performing her former work activities and
would be unable to meet the demands of academic activities. He endorsed her belly
dancing on a limited basis as well as partaking in other types of physical
rehabilitation.
[336] Dr. Bogod
stipulated that his opinion should be considered provisional. He expected to
be able to formulate a clearer prognosis once Ms. Gabor had received more
treatment, her symptoms had improved further and the two year post‑Accident
timeline had elapsed to allow for the maximal degree of spontaneous recovery
from brain injury. To that end, Dr. Bogod re-evaluated Ms. Gabor
approximately nineteen months later on February 4 and 5, 2014.
Second Report
[337] In
comparing the 2014 test results with his 2012 measurements, Dr. Bogod
concluded that Ms. Gabor showed notable improvements in her cognitive
function. At the same time, however, she continued to display significant impairments
in the attentional realm (e.g. focus and concentration), information processing
speed, memory (particularly with visual memory), and an isolated difficulty
with a high demand executive functioning task.
[338] As noted in
his initial report, Dr. Bogod turned his mind to the prospect that Ms. Gabor’s
cognitive failings revealed on testing may have been the product of her
psychological distress, fatigue, chronic pain, or a combination of those
factors, as well as injury to her brain. In his second report, he concluded
that her psychological functioning was non‑contributory to her current
cognitive problems. His essential reasoning was that Ms. Gabor’s
psychological functioning had improved significantly since she was last
evaluated and she was now only experiencing mild and transient mood, anxiety
and PTSD‑like symptoms. Those symptoms were likely below the threshold
to meet the criteria for a current psychological diagnosis, and, yet, she was
still presenting with significant cognitive impairments.
[339] Dr. Bogod
also found no evidence to suggest that Ms. Gabors headaches or chronic
pain impacted her cognitive functioning. Accordingly, he ruled them out as contributory
causes of her cognitive deficits. He also articulated the difficulties in
establishing any cogent relationship between the role potentially played by the
effect of the stress tied to Ms. Gabors involvement in this litigation to
the presentation or persistence of her symptoms consistent with mild traumatic
brain injury.
[340]
On the matter of Ms. Gabors ongoing fatigue, Dr. Bogod
concluded that it was linked to her cognitive deficiencies and was caused by
the Accident:
The underlying etiology of her
fatigue/sleepiness in the face of cognitive tasks remains unclear but given
that psychological dysfunction and pain have improved substantially since she
was last evaluated without concomitant improvement in fatigue, the likelihood
that her fatigue is secondary to substantially increased cognitive effort due
to noted cognitive deficits in speed of information processing and attentional
abilities is now more probable. There is no evidence that her fatigue symptoms
were present prior to the accident, and therefore they appear to remain a
direct and now enduring consequence of the accident and/or its related sequelae.
[341] In
cross-examination Dr. Bogod acknowledged that it was possible that
improvements in Ms. Gabors fatigue could result in some improvement in
her areas of persistent cognitive deficit. However, given that her fatigue
appeared to manifest most prominently when she was required to perform
cognitive tasks, he thought it reasonable that her fatigue was secondary to an
increased need for cognitive effort due to her measured cognitive impairments.
Even with improvement in Ms. Gabors fatigue level, it appeared likely
that to Dr. Bogod some degree of cognitive deficit would persist on an
ongoing basis with associated limitations in vocational and academic endeavours.
[342] Dr. Bogod
clarified that because his second assessment had taken place after the accepted
two-year time frame for spontaneous recovery, he believed it unlikely that Ms. Gabor
would return to her pre-Accident level of cognitive function. Rather, his view
goes the opposite way, namely that her current residual cognitive deficits will
probably endure.
[343] Dr. Bogod
regarded Ms. Gabors significant impairments in attention, processing speed
and memory combined with her notable cognitive fatigue, to represent
significant ongoing limitations. He continued to think that she would remain
unable to return to full-time work or to academic pursuits. Dr. Bogod expounded
that it remained highly unlikely that she currently has the cognitive ability
or cognitive stamina to complete a further program of academic study, and that
this limitation will likely persist. At the same time, he noted that Ms. Gabor
is likely able to work in some capacity in a role with limited cognitive
demands, as demonstrated by her part time belly dancing.
[344] Dr. Bogod
considered it likely that Ms. Gabor would remain at risk for periodic
exacerbations of her psychological symptoms due to the nature of the
psychological injuries sustained in the Accident, and in light of the ongoing
challenges she is likely to confront in managing her fatigue, pain and residual
cognitive deficits. He recommended continued monthly therapy for the next six
to 12 months with an additional 30 to 40 sessions into the future to assist her
in managing those exacerbations.
[345] The
defendants attacked Dr. Bogod’s opinion primarily on two bases. First,
they asserted that the neuropsychological test results he obtained did not
reflect Ms. Gabor’s full efforts. Dr. Bogod was thoroughly
cross-examined about the testing he conducted and the conclusions he had drawn
from the results. He explained that he had examined numerous indicators, both
formal and informal, of Ms. Gabor’s effort and concluded it was extremely
good throughout testing on all occasions, and that there was no basis for
concern about suppressed effort or malingering.
[346] Dr. Bogod
would not agree to the proposition that Ms. Gabor’s fatigue may have somehow
skewed the test results in a way that indicated greater impairment than is
actually present. Having utilized nine separate validity indicators, all of
which suggested that she performed normally, Dr. Bogod felt assured that her
fatigue did not throw into question the legitimacy of his results. In
explaining the basis of his confidence, he referred, as an example, to the fact
that the continuous performance test is sensitive enough to flag when an
individual stops responding during the task and, in that event, will report the
test as being an invalid administration. That had not occurred with Ms. Gabor.
Dr. Bogod made it clear that although she became fatigued during testing,
which was consistent with the fact that she fades under cognitive demand, she
kept at the tasks at hand.
[347] The defendants
other chief prong of attack was to the effect that Dr. Bogods testing and
analysis rested on the erroneous assumptions that Ms. Gabor was an average
to high average student in school, that before the Accident her cognitive
functioning was normal and she was well-functioning and free from psychological,
neurological or substance abuse issues. They cautioned that his opinion should
be highly discounted in light of what they assert are these faulty
underpinnings.
[348] Dr. Bogod
was pressed in cross‑examination with suggestions that he had overestimated
Ms. Gabor’s pre‑morbid function. With respect to her pre-Accident
psychological functioning, he agreed that she had not told him about her
sessions with Ms. Scott. However, he had reviewed Ms. Scotts records
in advance of preparing his second opinion and commented upon them in that
report. Sharing Dr. Cheungs view, Dr. Bogod thought it material
that Ms. Scott’s records did not disclose any psychological diagnosis and
did not signal that Ms. Gabor had been experiencing any significant
psychological issues prior to the Accident.
[349] Dr. Bogods
interpretation of Ms. Scotts records was that they merely indicated a
past history of transient anxiety symptomology. That observation, coupled with
Ms. Gabors single depressive episode as a teen, indicated to Dr. Bogod
that her pre‑Accident history of mild psychological symptoms might render
her more vulnerable to developing more significant psychological symptoms in
the event of a significant upheaval or trauma. In his opinion, had the Accident
not happened, Ms. Gabor would not have developed the psychological
symptoms and debilitating psychopathology that surfaced after its occurrence.
[350] As to Dr. Bogod’s
working premise that Ms. Gabor was an average to high average student in
school, he acknowledged that her high school grades were mixed. Indeed, his
report explicitly described their range. He noted that the best proxy would be
her recent grades and not what she had achieved in earlier years. Dr. Bogod
endorsed the common sense proposition that being admitted into the demanding masters
program at Emily Carr on a scholarship, where she did very well, was the best
indicator of Ms. Gabors pre-Accident potential.
[351] All things
considered, I am not persuaded that Dr. Bogods opinion is founded on
materially erroneous assumptions about Ms. Gabor’s pre-Accident state or
functioning such that his assessment of the nature and extent of her cognitive
impairment is of doubtful legitimacy.
[352] Dr. Bogod
was a forceful witness for Ms. Gabor.
(c) Dr. Lisa Caillier
[353] Dr. Caillier
is an experienced physiatrist who treats and assesses individuals with brain
injuries, including mild traumatic brain injuries. In her practice, she
receives referrals from family doctors and other specialists with respect to
patients who have sustained a mild traumatic brain injury, and follows
them in the long term. In addition to her outpatient practice, Dr. Caillier
is associated with the G.F. Strong Rehabilitation Centre.
[354] Dr. Caillier
prepared two reports. The first one is dated June 14, 2013 and is based on her
assessment of Ms. Gabor and review of pertinent clinical records completed
on May 10, 2013. Her second report, dated March 24, 2014, was based
exclusively on her review of additional clinical documents and expert reports that
had not been available to her at the time she composed her initial opinion. She
did not conduct an interview of Ms. Gabor preparatory to writing her
second report.
First Report
[355] From her
review of the clinical records and interview of Ms. Gabor, Dr. Caillier
noted a history of impingement syndrome of Ms. Gabor’s right shoulder. She
also found that the records indicated a two-year history of intermittent pain
in her thoracic spine and right scapular region, and highlighted that Ms. Gabor
had sought medical attention in respect of her back pain in March 2011, being
just a few months before the Accident.
[356] Ms. Gabor
told Dr. Caillier about her issues with mood when she was a teen and that
she had taken medication for depression at that time. Dr. Caillier was also
aware that Ms. Gabor had experienced anxiety before she moved to Vancouver
to attend Emily Carr.
[357] By the
time that Ms. Gabor was assessed by Dr. Caillier, her primary
complaints were fatigue and cognitive difficulties. Dr. Caillier made
several diagnoses as summarized below.
(i) Probable Mild Traumatic Brain
Injury
[358] In describing
the Accident, Ms. Gabor told Dr. Caillier that a big white truck blew
through a red light" from her left when she was in an intersection. She
recalled a flash in front of her and reported that the truck hit her on the
front driver’s side and subsequently crushed" her vehicle. Although Ms. Gabor
remembered bracing herself for the collision, she could not recall the actual impact.
She said she was not sure if she lost consciousness and, if she did, it was
just for a brief moment. She recounted to Dr. Caillier that she was not
able to exit her vehicle on her own and that someone came and helped her out. She
remembered crying and being stricken, dazed and shocked at the scene. Ms. Gabor
also recalled that police who happened to already be at that intersection told
her that they had to duck to avoid the flying debris from the car.
[359] In Dr. Caillier’s
opinion, Ms. Gabor probably sustained a mild traumatic brain injury and
post-concussive syndrome as a result of the Accident, along with psychological
symptoms in the form of irritability and altered mood, cognitive symptoms in
the form of reduced memory, attention, multitasking, concentration and processing
speed, together with physical symptoms in the form of fatigue, dizziness,
tinnitus, and blurring of vision. Dr. Caillier clarified that she uses
the term post‑concussive syndrome" to refer to the cluster of persistent
symptoms that linger after three months from the time the brain injury is
sustained.
[360] In terms
of the presence of the compulsory diagnostic criteria for mild traumatic brain
injury, Dr. Caillier relied, in part, on Ms. Gabor’s self-report of
feeling stricken and dazed at the time of the Accident, together with her complaint
of disorientation made to Dr. Tan within hours of the Accident. Dr. Caillier
understood that it was Ms. Gabor who had reported feeling disoriented, as
opposed to Dr. Tan having observed signs consistent with disorientation. As
to that point, she noted that the ACRM criteria permit subjective complaints of
alteration in mental state such as disorientation. To Dr. Cailliers mind,
Ms. Gabor’s self-description of disorientation meant that she was not
thinking clearly. In her view, Ms. Gabors self-reported states of
disorientation and feeling dazed satisfied the criterion of an alteration in her
mental state at the time of the Accident. Those factors, in combination with Ms. Gabors
other symptoms consistent with post‑concussion syndrome, formed the basis
of Dr. Cailliers opinion that she had sustained a mild traumatic brain
injury in the Accident.
[361] In
response to questioning in cross‑examination, Dr. Caillier expanded her
opinion and stated that Ms. Gabors inaccurate reporting of certain of the
details of the Accident (for example, describing it as a t‑bone collision,
whereas Dr. Caillier’s interpretation of the photographs of her damaged
vehicle was that it was more of a head‑on impact), suggested that she may
also have suffered loss of memory in consequence of the Accident, which would
also satisfy the requisite diagnostic criteria.
[362] Dr. Caillier
thought that Ms. Gabor had recovered quite well from her brain injury as she
was no longer experiencing dizziness, tinnitus or visual blurring. She had
also experienced improvements in her level of fatigue and cognitive functioning
since the fall of 2012 that appeared to coincide with improvements in her sleep,
physical symptoms and psychological state.
[363] Dr. Caillier
forecasted continued improvement of Ms. Gabor’s cognitive deficits
attributable to the mild traumatic brain injury. She expected that ongoing recovery
of Ms. Gabor’s pain, fatigue, sleep and mental health would translate into
further improvement of her cognitive capabilities.
(ii) Emotional and
Psychological Symptoms
[364] Dr. Caillier
opined that, in all likelihood, Ms. Gabor’s emotional and psychological
symptoms were partly related to her probable mild traumatic brain injury. Other
contributors were her ongoing issues with pain, poor sleep and the inability to
return to her previous activities and pursue her intended career path.
[365] She was
also of the view that the symptoms underlying Dr. Cheungs diagnosis of an
Adjustment Disorder were likely negatively impacting Ms. Gabors fatigue
level and her cognitive function, as well as her ability to be functional and
active. In Dr. Cailliers opinion, ongoing improvement of Ms. Gabor’s
emotional and psychological well-being would likely translate into improved work
capabilities on the cognitive and organizational sides of things, together with
a lessening of fatigue with improved energy.
[366] Dr. Caillier
deferred to colleagues in psychiatry and psychology to comment further in this
area.
(iii) Disturbed Sleep and Fatigue
[367] Dr. Caillier
concluded that Ms. Gabors fatigue was multi‑factorial in origin.
She attributed it to her mild traumatic brain injury, as well as, her physical,
emotional and psychological symptoms, her interrupted sleep and Adjustment
Disorder, all of which ensued as a result of the Accident.
[368] Dr. Caillier
also raised the possibility of reasons unconnected to the Accident contributing
to Ms. Gabors fatigue. Among them she identified hypothyroidism, anemia
and B12 or folate deficiency. Those issues were subsequently ruled out after Ms. Gabor
was tested in follow-up.
[369] Dr. Caillier
did not recommend that Ms. Gabor try a neurostimulant on the rationale
that it was likely she would experience continued improvements of her fatigue and
energy in the next six months or so.
(iv) Soft Tissue Injuries/Chronic
Pain and Headache
[370] In Dr. Caillier’s
opinion, the Accident caused Ms. Gabors headaches and soft tissue
injuries that implicated her neck, upper and lower back and gluteal regions. Assuming
that her right scapula and thoracic spine problems had not completely resolved
before the Accident, she opined that they were aggravated by the Accident.
[371] Dr. Caillier
predicted ongoing improvement in Ms. Gabor’s physical symptoms over the
course of the following twelve months. She expected that although Ms. Gabor’s
physical symptoms would periodically flare beyond the next twelve‑month
period, they would be unlikely to pose physical limitations or restrictions,
provided she paced and prioritized her activities as required during those episodes.
[372] Dr. Caillier
recommended that Ms. Gabor work to improve her overall physical
conditioning, partake in at least 14 to 16 additional sessions in a
kinesiology-based exercise program, decrease and slowly wean herself from
napping during the day and continue to work with her psychologist. So
long as Ms. Gabor continued to participate in an independent exercise
program and had further sessions in an active rehabilitation program, Dr. Caillier
anticipated that her physical symptoms and pain would likely become more
intermittent. Beyond active rehabilitation with a kinesiologist, Dr. Caillier
suggested four to five kinesiology sessions per year, stretching into the next
two to three years. In her view, Ms. Gabor should be exercising at least
three to four times per week, for one hour each time.
Second Report
[373] In Dr. Cailliers
second report, she identified fatigue and persistent cognitive difficulties as Ms. Gabor’s
principal problems. She also noted that the fatigue continued to have a
significant impact on Ms. Gabors ability to complete physical and mental tasks.
[374] In her
first report, Dr. Caillier had explicitly decided against recommending
that Ms. Gabor try a neurostimulant on the rationale that her fatigue would
improve. In her second report, however, she concluded that it was time for Ms. Gabor
to trial that medication. In Dr. Cailliers experience, a neurostimulant
is by no means a panacea and does not return an individual to his or her pre‑accident
functioning. While such medication may improve one’s ability to function,
patients often continue to struggle with fatigue, attention, concentration,
memory, multitasking and cognitive alertness. In fact, sometimes the fatigue
is worsened with those medications.
[375] Even if a
neurostimulant proved beneficial and improved Ms. Gabor’s quality of
sleep, Dr. Caillier expected that she would likely continue to face fatigue
daily. Along similar lines, Dr. Caillier noted that she has yet to have a
patient receive a significant benefit from attending a sleep clinic. I accept Ms. Gabor’s
evidence that she has been taking a neurostimulant, and that, unfortunately, it
has not had a positive therapeutic effect.
[376] Dr. Caillier
acknowledged that Ms. Gabor had shown improvement on the cognitive
assessment completed by Dr. Bogod in 2014, but that she continued to
suffer ongoing cognitive deficits, particularly in the areas of attention span,
memory and visual memory. In Dr. Cailliers opinion, those persistent
cognitive deficits are probably permanent and it is unlikely that she will
enjoy significant improvements in the future.
[377] Given the
likely permanence of Ms. Gabor’s cognitive impairments, Dr. Caillier ranks
her ability to secure a full-time academia position or pursue additional post-secondary
education on a full-time basis, as guarded at best. She emphasized that the
impairments in Ms. Gabor’s visual memory, in particular, would have a
negative impact on her ability to work as an artist.
[378] Dr. Caillier
also opined that Ms. Gabor’s fatigue adversely affects her ability to be
gainfully employed, both full-time and part-time. Even with the benefit of a neurostimulant
and sleep improvement, Dr. Cailliers opinion is that Ms. Gabor would
likely need to have breaks during the day. In her view, Ms. Gabor’s
persistent cognitive deficits combined with her chronic fatigue render her
ability to pursue her pre‑Accident career path in academia as poor.
[379] Dr. Caillier
shared Dr. Bogods view that Ms. Gabor is probably capable of some
form of part‑time work. She endorsed a review by a vocational consultant
to determine what options Ms. Gabor should pursue and the supports that
would have to be in place for her to be successful in part‑time
employment. In that regard, Dr. Caillier recommended there be an
ergonomic assessment of her workstation, now and in the future.
[380] In cross‑examination
Dr. Caillier would not agree that Ms. Gabor’s ongoing cognitive
symptoms were caused by her poor sleep, her residual emotional and
psychological symptoms or her involvement in this litigation, or some
combination of them. Her logic was that if such a causal link existed, the
expectation would be that with Ms. Gabor’s substantial improvements in
mental health and chronic pain, their impact on her cognitive functioning would
have lessened and thus her cognitive functioning would have correspondingly
improved. Yet, significantly, in Dr. Cailliers view, that had not
happened.
[381] In terms
of the influence of Ms. Gabors participation in this litigation, Dr. Caillier
echoed the comments made by Dr. Bogod and Dr. Smith (to be discussed)
to the effect that the question of how litigation may impact her symptoms and
her outcome is simply not adequately known or susceptible to reliable quantification.
[382] One of the
defendants theories is that it was Ms. Gabor’s acute injuries flowing
from the Accident that impeded her ability to finish her thesis, rather than
any cognitive difficulties. Dr. Caillier conceded that the time frame
within which Ms. Gabor was not able to complete her thesis coincided with
the immediate post‑Accident period. She also agreed that, at that time, Ms. Gabor
would have been experiencing the acute phase of her injuries, except for her
symptoms of low mood and depression which Dr. Caillier explained do not
necessarily manifest right away.
[383] However,
in Dr. Cailliers experience, people who are battling chronic pain,
emotional and psychological disturbances and poor sleep would still be able to
complete the minor task of correcting a few paragraphs of their own written
work. It is her opinion, that for someone like Ms. Gabor, who had
previously successfully defended her master’s thesis, a few paragraphs of
revisions would have been a minor undertaking and her acute injuries would not
have presented a hurdle to her completing them. She opined that it was Ms. Gabor’s
cognitive difficulties and fatigue attributable to the mild traumatic brain
injury, as distinct from her acute symptoms, that posed the primary impediments
to the completion of her thesis in a timely way. Dr. Caillier regarded the
struggle encountered by Ms. Gabor in finishing her thesis to be very
telling and supportive of the diagnosis of mild traumatic brain injury.
[384] Ms. Gabors
chronic pain had improved since she had been seen by Dr. Caillier. Even
so, Dr. Caillier predicted a poor likelihood of her becoming pain-free altogether
in the future. It remained her opinion that from time to time Ms. Gabors
physical symptoms would probably flare. She held to the view that it was not
likely that Ms. Gabor’s residual chronic pain would limit or restrict her
ability to participate in activities of her choosing whether at home, work or
recreationally.
[385] Dr. Caillier
did not recommend that Ms. Gabor continue with physiotherapy or
acupuncture treatments, preferring instead that she be proactive and exercise
regularly to improve upon her physical conditioning. In that connection, she reiterated
her recommendation that Ms. Gabor have additional sessions with a
kinesiologist. She further recommended a lifelong exercise program to
manage Ms. Gabors symptoms in the future and suggested that lifelong
access to a pool and gym would prove helpful.
[386] Dr. Caillier
was cross‑examined extensively about the restrictions on physical
movement imposed by chronic pain. In the context of that line of questioning,
she was asked to watch various videotapes of Ms. Gabor belly dancing. Dr. Caillier
rejected the blunt assertion that people with chronic pain have difficulty with
fluid movement and guard against particular movements. She clarified that it very
much depended on what movements provoked the pain. Dr. Caillier explained
that people with chronic pain can have an excellent range of motion and be
quite fluid, especially where their pain is largely provoked by maintaining
sustained or static postures as in Ms. Gabor’s case. She also testified
that Ms. Gabor has hyperlaxity in multiple joints which allows her a
beyond normal range of motion, increased range to her shoulders, elbows, knees
and hips, and good flexibility throughout her low back.
[387] Dr. Caillier
was not surprised that Ms. Gabor was able to return to dance after the Accident
and perform the required dance movements. She repeatedly emphasized that it
did not necessarily follow that Ms. Gabor no longer has pain. She cautioned
against adopting the simplistic mindset that by observing the videos of Ms. Gabor
dancing, it is reasonable to conclude that she does not suffer from chronic
pain.
[388] Dr. Caillier
likewise urged caution in response to the proposition that there was no
evidence in the videos that Ms. Gabor was guarding her neck, back or other
regions while dancing, with the implication that she was, therefore, not
experiencing pain. She replied that had Ms. Gabor been interviewed after
dancing and asked how she felt, she may have said that she was in pain while
she danced but nevertheless enjoyed doing it. She remarked that people with
chronic pain typically try to live their lives, which entails doing physical
activities that trigger pain. Dr. Caillier testified that chronic pain is
better managed when those suffering from it keep moving.
[389] Dr. Caillier
agreed that the videos did not demonstrate any obvious lack of energy on the
part of Ms. Gabor, and that she did not look as though she was fatigued. However,
in her view, the real test is what happens to Ms. Gabor’s degree of
fatigue when she is involved in sustained activities. She convincingly rejected
the notion that Ms. Gabor’s performance in the videos demonstrated that
she had made a complete recovery from her physical symptoms. With similar
force, Dr. Caillier refuted the proposition that, had she viewed the video
tapes before she wrote her first report, she would have come to different
recommendations and/or conclusions about Ms. Gabor’s chronic pain.
[390] In Dr. Cailliers
view, resuming belly dancing has probably been quite beneficial for Ms. Gabor
in terms of allowing improvement and management of her pain, and also assisting
in the management of her fatigue. She considers belly dancing to be important
for Ms. Gabor’s long-term management of those symptoms.
(d) Dr. Derryck
Smith
[391] Dr. Smith
is a psychiatrist with considerable experience in the area of brain injury. He
is a Professor Emeritus in the Department of Psychiatry at the University of
British Columbia and the former head of the Department of Psychiatry at
Children’s Hospital. Dr. Smiths private practice is limited to patients suffering
from brain injury or attention deficit hyperactivity disorder. He has peer-reviewed
scientific articles for the journal Brain Injury and other publications
and has been the guest editor and author of a two‑volume series on mild
traumatic brain injury in the British Columbia Medical Association Journal
(2006). He also regularly lectures and delivers courses on the topic of traumatic
brain injury.
[392] Dr. Smith
conducted his independent assessment of Ms. Gabor on September 3, 2013. In
preparing his opinion, he reviewed several of her medical and treatment therapy
records, Ms. Olsons records, Dr. Bogods initial report, Dr. Cailliers
first report (at the time Dr. Smith composed his report, neither Dr. Bogod
nor Dr. Caillier had prepared their subsequent opinions), Dr. Cheung’s
expert report, and Ms. Gabor’s post-secondary education records.
[393]
Dr. Smith recorded Ms. Gabors account to him of the Accident
as follows:
● As she was
making a left-hand turn in an intersection on a green light, her vehicle was t-boned
by another vehicle proceeding through on her left and struck her vehicle over
her driver’s door.
● She was shocked".
● There was no
observed loss of consciousness. She
was uncertain about whether she hit her head.
● She has some
blurry parts of her memory.
● She had to use
her passenger door to exit her vehicle because her door would not open.
● An ambulance
crew arrived and the attendant gave her a quick look.
● Someone called
her father.
● Both her parents arrived at the
scene and took her to a medical clinic which she had been to before. She cannot
remember the doctor’s name or the treatment she received at that session.
[394] In Dr. Smiths
experience there is often a lack of available objective data on which to ground
a diagnosis of mild traumatic brain injury, explaining that the majority of
individuals who sustain such an injury do not get admitted to hospital.
[395] Dr. Smith
echoed the evidence of Drs. Cheung and Bogod, which I accept, concerning the
typical trajectory of recovery from mild traumatic brain injury. The vast
majority of individuals who sustain a mild traumatic brain injury recover with
no lasting ill-effects. Considerable improvement takes place within the first
six‑month period and more in the remainder of the first year, with continued
improvements until approximately two or, at most, two and a half years after
the trauma. The generally accepted corollary is that a minority of individuals,
ranging from between five and fifteen percent (depending on the literature),
experience persistent symptoms. At the two or two and a half year mark,
significant improvement in cognitive deficits secondary to mild traumatic brain
injury is extremely unlikely. In other words, after that passage of time spontaneous
recovery will be complete and the residual cognitive impairments will likely be
permanent.
[396] A number
of propositions contained in a paper authored by Dr. Smith in 2014 for the
Canadian Bar Association titled, The Problem With Mild Traumatic Brain
Injury (MTBI) and Post-Concussion Syndrome, were put to him during
cross-examination. Most of the extracts drawn to his attention referred to the
breadth of the diagnostic criteria for mild traumatic brain injury and the
overlap of symptoms experienced by patients with that injury and by persons suffering
from other types of conditions. Perhaps not surprisingly given the source, Dr. Smith
agreed with all of the propositions put to him. This line of cross‑examination
yielded nothing more than confirmation of the controversy around the diagnosis
of mild traumatic brain injury and post‑concussion syndrome.
[397] Dr. Smith
explained that, due to the non‑specificity of the symptoms, he considers
the diagnosis of post-concussion syndrome to be so problematic that he does not
apply it. He also steers away from asking the individual questions aimed at
eliciting answers as to whether they have experienced each and every symptom on
the post-concussion checklist. His belief is that doing so carries the
potential of contaminating the information obtained in the interview and may
lead to an over endorsement of symptoms.
[398] Dr. Smith
concurred with Dr. Caillier’s opinion that Ms. Gabor sustained a mild
traumatic brain injury as a result of the Accident. He also agreed with Dr. Bogods
opinion that her demonstrated impairments on neuropsychological testing were
the likely combination of ongoing neck and back pain, sleep disturbance, and
the sequelae of a brain injury. As well, Dr. Smith shared Dr. Cheungs
diagnosis of Adjustment Disorder.
[399] In his
report, Dr. Smith opined that the main evidence supporting his diagnosis
of mild traumatic brain injury was Ms. Gabor’s period of peritraumatic
amnesia, meaning gaps in her memory of the events immediately before and/or
after the Accident, coupled with her ongoing cognitive impairments and cluster
of psychological and behavioural symptoms that are consistent with a mild
traumatic brain injury. He explained that Ms. Gabors reports of the Accident
given to a number of people, including him, indicated that she had experienced a
gap in her memory, particularly for events after the impact. He rejected the
proposition that her memory gap was caused by psychological distress or
physical trauma.
[400] At trial, Dr. Smith
was shown a photograph of Ms. Gabor’s car at the Accident scene. In his
view, the damage to her vehicle indicated that she was struck predominantly at
the front of her vehicle and was not t-boned as she had relayed to him and many
others. He also thought that the photograph of her vehicle seemed inconsistent
with her account that she had not been able to use her driver’s side door to
exit her vehicle. At the same time, he agreed that that the photograph, which
appeared to depict a functioning driver’s side door on Ms. Gabor’s car
after the Accident, was somewhat open to interpretation. In any case, Dr. Smith
testified that assuming Ms. Gabor provided inaccurate details surrounding
the Accident, that suggested she had been confused and/or dazed at the scene
for a period of time. Accordingly, in addition to experiencing a gap in her
memory and satisfying that diagnostic criterion, he testified that the
criterion of experiencing an altered mental state may also have been met. However,
he had not formulated his written opinion on the presence of that latter
criterion.
[401] Continuing
with the issue of whether Ms. Gabor may have experienced an altered mental
state, Dr. Smith stated that her self-report of disorientation to Dr. Tan
the day of the Accident would further bolster the finding that such diagnostic
criterion was satisfied. At one point in his direct evidence, he seemed to say
that Dr. Tan had made an objective finding of disorientation when she saw Ms. Gabor
on the day of the Accident. The defendants assert that his plainly incorrect testimony
on that point suggests that he was confused about that fact or failed to
appreciate that Ms. Gabor had made a self‑report of disorientation
to Dr. Tan.
[402] That is
not a fair assessment of Dr. Smith’s evidence. When the matter was
explored in cross‑examination, it was abundantly clear that he understood
that Dr. Tan’s entry of disorientation in Ms. Gabor’s chart referred
to Ms. Gabor’s subjective complaint. That was also made explicit in his
written report. In my view, Dr. Smith had simply misspoken at trial when
he stated that Dr. Tan had objectively found that Ms. Gabor was
disoriented. His misstatement had never formed the basis of his opinion that Ms. Gabor
suffered a mild traumatic brain injury in the Accident. As mentioned, Dr. Smith’s
core opinion rests on the presence of the diagnostic criterion of a gap in her
memory, and not on her having experienced an altered mental state.
[403] Dr. Smith
agreed that the effect size of mild traumatic brain injury related cognitive
symptoms is very small, and that many other conditions have a more adverse
effect on neuropsychological functioning than does mild traumatic brain injury.
He testified that his familiarity with the medical controversy in the area prompted
him to ensure that he carefully explored and weighed the prospect of other
causes being responsible for Ms. Gabor’s symptoms.
[404] In
carrying out his differential diagnosis, he turned his mind to whether the
combination of factors such as her chronic pain, psychological afflictions,
litigation stress, sleep problems, and the diagnostic threat could account for
her symptoms, and concluded they did not. Like Drs. Bogod and Caillier, Dr. Smith
was uncertain how one could validly quantify the effect of litigation stress on
a particular individual when performing a clinical assessment. This was largely
because everyone that he sees who is involved in the court system experiences consequential
stress of some degree. In his opinion, the remainder of those factors, namely
chronic pain, psychological afflictions, sleep disturbance, and the diagnostic
threat, either standing alone or working together, were not sufficiently
impairing of Ms. Gabor to explain the nature and extent of her cognitive
deficits measured by Dr. Bogod. There was nothing to indicate to Dr. Smith
that she had exaggerated those deficits on testing.
[405] In cross‑examination,
Dr. Smith agreed that it was possible that an individual who had not been
diagnosed with a psychological disorder could nonetheless have psychological
symptoms that could negatively affect cognitive functioning. He further agreed
to the possibility that undiagnosed psychological symptoms could be affecting Ms. Gabors
cognitive functioning. However, Dr. Smith agreed to those general propositions
as mere possibilities and at no time retreated from his fundamental opinion
specific to this case, that Ms. Gabor had sustained a mild traumatic brain
injury in the Accident.
[406] As to Ms. Gabor’s
prognosis, it is Dr. Smith’s opinion that because she has endured
persistent residual cognitive difficulties due to brain injury for more than
two years, her residual impairments are permanent.
[407] Dr. Smith
documented that Ms. Gabor told him she had two prior episodes of emotional
distress. He understood that at age 13, she had mild symptoms of depression
which she described to him as a normal teen thing" and was aware that she
had been treated with Prozac for one year in relation to it. Ms. Gabor informed
him that while at university, during her 20s, she received counselling for
stress, in respect of which Dr. Smith noted there had been no formal
psychiatric history.
[408] Ms. Scott’s
records had not been available to Dr. Smith at the time he wrote his
opinion: however, he read them subsequently. In cross‑examination he was
taken to several of her entries. Dr. Smith did not regard Ms. Gabor’s
history of emotional and psychological symptoms as significant, and considered it
material that they had not impaired her function at the time she was seeing Ms. Scott.
[409] Dr. Smith
was questioned about whether he would agree that, had the Accident not occurred,
Ms. Gabor likely would have experienced episodes of anxiety or depression
in her life on the occurrence of a traumatic event. His answer was maybe,
explaining that he could not be more definitive because her past psychological
history of anxiety and depression did not appear to be significant and, more
importantly, they had not caused her any functional impairment. He went on to
say that Ms. Gabors history of mixed symptoms may simply leave her more
vulnerable to developing anxiety or depression after a trauma.
(e) Dr. Gordon
Wallace
[410] Dr. Gordon
Wallace is a registered psychologist. He has worked in the field of
rehabilitation psychology assessment since 1980 and has been qualified as an
expert in that area in the courts of several Canadian provinces and in the
United States.
[411] Dr. Wallace
conducted an assessment of Ms. Gabor on February 13, 2014 for the purpose
of assessing her residual employability potential. The evaluation consisted of
his interview of Ms. Gabor, the administration of a battery of tests, and a
review of pertinent medical and psychological documentation, which included the
initial reports of Drs. Caillier and Bogod. At the time, Dr. Bogod had completed
his second assessment of Ms. Gabor, but had not yet prepared his written
report. He discussed his findings from his subsequent testing with Dr. Wallace.
[412] Dr. Wallace
explained that from a rehabilitation psychology perspective, it is important to
not only identify occupational options within Ms. Gabors residual
vocational abilities and interests, but to also consider the likelihood of her
being able to obtain and maintain competitive employment. He used the term
competitive employment to refer to the ability to engage in work activities
that generate remuneration based on performance capabilities.
[413] Based on Ms. Gabors
self‑report, Dr. Wallace identified her primary pre-Accident
vocational goal as a career teaching in an art program at the college or
university level. In his opinion, she had the requisite qualifications to
pursue that goal. He emphasized, however, that because her desired position is
considered to be very competitive, it was difficult for him to say how
successful she would have been in securing one.
[414] Ms. Gabor
told Dr. Wallace that she would have considered employment in other public
art-related institutions, such as an art gallery. In his opinion, her
educational and art background would have qualified her for a number of posts within
that sphere, such as technical services, curator services, and public
programming. Those jobs would encompass responsibilities such as behind the
scenes preparation for exhibits, conducting research, making decisions related
to exhibits, marketing, and orchestrating exhibit tours. In his view, Ms. Gabor
was also employable by private art galleries prior to the Accident.
[415] Dr. Wallace
has no doubt that Ms. Gabor’s physical, psychological and cognitive
symptoms after the Accident have had a negative impact on her ability to pursue
an academic career at the post-secondary institution level. He opined that her
reduced functioning capabilities attributable to her cognitive deficits and
fatigue limit her capacity to be productive on a daily basis and thereby place
her at a greater disadvantage. He reasoned she was therefore less likely to
obtain a position in an academic career at a post-secondary institution level
than she would have been before the Accident.
[416] Dr. Wallace
opined that the findings from Dr. Bogods recent assessment of continuing
cognitive limitations, coupled with Ms. Gabors fatigue with mental effort,
would not be congruent with the demands of an occupation in academia, including
the day-to-day demands of a teaching position. Her aptitude results,
particularly in regards to general learning ability, were also not consistent
with the requirements of a college or university level teaching position. He
concluded that her fatigue and subsequent reduced functioning capabilities
would continue to impede her ability to complete activities that would likely
increase her competitiveness for available teaching positions. In this regard,
Dr. Wallace noted that Ms. Gabor had not been able to do her art work
in as productive a manner as she had been able to prior to the Accident. Neither
had she succeeded in securing additional exhibitions beyond the one at the
Gallery in early 2013, which would likely have increased her competitiveness
for teaching positions.
[417] Based on
the foregoing, Dr. Wallace opined that from a rehabilitation psychology
perspective, it is unlikely that, at present, Ms. Gabor would be able to
obtain a post-secondary teaching position on account of her ongoing cognitive
limitations, diminished productivity, reduced self-confidence, and fatigue.
[418] Dr. Wallace
also turned his mind to Ms. Gabor’s post‑Accident ability to obtain
and maintain competitive employment in alternative public art institution
positions. In his view, those options were not realistic given her present
functioning limitations. He did not believe that she would be able to carry
out job duties in an efficient and effective manner commensurate with
competitive employment standards.
[419] Ms. Gabors
potential to work in private galleries, which would be sales-related positions,
also presented concerns to Dr. Wallace. Although the cognitive demands associated
with those jobs would be less demanding than careers in academia or public art
gallery placements, it nevertheless required mental effort to deal with
potential buyers. Dr. Wallace added that Ms. Gabors potential
earnings would likely be commission-based and therefore would be difficult to
estimate.
[420] In Dr. Wallaces
view, the occupational careers open to Ms. Gabor are very limited because
of her ongoing symptoms. More specifically, he was doubtful about Ms. Gabors
capacity to competitively work as a fine arts technician, especially on
a full‑time basis. He remarked that developing a career as an
artist would require Ms. Gabor to create artistic projects with the
expectation of additional exhibitions and subsequent sales. Dr. Wallace
voiced concerns related to her reduced confidence combined with concerns about
the quality and quantity of her artistic output after the Accident as posing
potential impediments. That said, he acknowledged that providing an opinion
regarding her ability to consider a full-time career as an artist was beyond
his expertise. He suggested obtaining an opinion from professionals within the
art community to assess her commercial potential as an artist.
[421] Making use
of Ms. Gabors diploma in Fashion Design and Merchandising was seen by Dr. Wallace
to be problematic because it would involve extended periods of sitting.
Compounding that difficulty was that Ms. Gabor now has limited interest in
that field which she shifted away from to pursue a more elevated career in art.
[422] Dr. Wallace
believes that Ms. Gabor could consider work in fashion retail outlets. He
noted, however, that such a path would represent a demotion from her
educational and vocational development and could likely prove to be
psychologically difficult for her to consider. In addition, her fatigue was a hampering
concern in relation to such employment on a full‑time basis.
[423] Because of
her residual injuries, Dr. Wallace also regarded Ms. Gabor as limited
with respect to retraining and obtaining further education in a field that
would draw on her strong artistic interests, such as interior design.
[424] Dr. Wallace
was aware that Ms. Gabor had been able to return to belly dancing, albeit
with delay in implementation because of the Accident. She told him that that
she was currently performing and was teaching two classes a week and
lately had been able to promote her services and develop increasing work
opportunities. She also said that being able to pursue belly dancing had been
psychologically beneficial for her and that she was planning to continue with
it. At the same time, however, she reported experiencing increased pain after
participating in lengthy dance workshops and continued to report fatigue which,
according to Dr. Wallace, could negatively impact her ability to
participate in dance activities.
[425] Dr. Wallace
went on to say that if Ms. Gabors fatigue and pain experience were improved
upon, then it would appear that she would be able to continue expanding her
self-employment as a dancer. He found it difficult to assess what her earnings
might be from dancing as they would depend upon her skill level, promotional
capabilities, as well as available employment opportunities.
[426] Dr. Wallace
highlighted the differences between the demands of being self-employed and the
more typical employer-employee work situation. He explained that
self-employment is more flexible and amenable to an individual’s schedule,
activity tolerances, and productivity capabilities. In his view, when
assessing Ms. Gabors residual employability potential, it was therefore important
to consider not only her ability to participate in self-employed ventures, but
to also meet competitive employment standards.
[427] Drawing on
his years of experience in the field, Dr. Wallace has come to understand
that in order to maintain ongoing competitive employment individuals need to
have three basic foundational skills over and above skills specific to a particular
job. They are: (i) attending a job site when scheduled; (ii) interacting
appropriately with co-workers, supervisors and, if necessary, with customers
and clients; and (iii) completing job duties in an efficient and effective
manner commensurate with competitive employment standards. This latter
requirement would include skills such as independently initiating and completing
tasks; assessing ones work output and recognizing errors and limitations;
tolerating frustration; meeting job production demands and quotas; and completing
multitasking demands, etc. In his view, the absence of any of these three core
components would render it unlikely that an individual could maintain
competitive employment.
[428] In
cross-examination Dr. Wallace acknowledged that Ms. Gabor appeared to
display the foregoing foundational skills in respect of her exhibition at the
Gallery. His acknowledgement carries marginal weight in light of my findings
concerning the many difficulties, verging on near chaos, experienced by Ms. Gabor
behind the scenes.
[429] In Dr. Wallace’s
opinion, Ms. Gabor’s ability to maintain ongoing competitive employment in
a typical employee-employer relationship is an issue due to her continuing
cognitive, physical and/or psychological impairments. He raises as a particular
concern her ability to efficiently and effectively complete job duties in a manner
commensurate within competitive employment standards. In that connection, he
points out her self-report that on a daily basis she has approximately six
hours of productive activity, which is spread throughout the day so she can
take the breaks she requires. Dr. Wallace concluded that, given her
cognitive, physical, psychological, and fatigue issues, Ms. Gabors ability
to maintain competitive employment standards, remained guarded. A more
definitive opinion would require her attendance in a traditional employee work
setting.
[430] A final
factor for consideration raised by Dr. Wallace is the awkwardly worded
concept of presenteeism. It refers to the measure of lost productivity cost
due to employees actually showing up for work but not being fully engaged and
productive, mainly because of personal health and/or life issue distractions.
This would encompass individuals who are able to maintain their employment
through meeting the basic skills required of competitive employment but are
less productive in their work output. Individuals whose presenteeism is
challenged are, in Dr. Wallace’s opinion, less likely to be promoted as
compared with their non-distracted counterparts. They would not be considered
to be as valuable as other employees who are able to be more efficient and
versatile in their job duties. He commented that individuals displaying
problems with being present are at a higher risk for being let go should the
employer need to adjust the workforce.
[431] Dr. Wallace
opined that from a rehabilitation psychology perspective, Ms. Gabors
significant fatigue, which increases with mental effort, and her diminished
cognitive efficiency will have the greatest impact on her ability to obtain and
maintain competitive employment in occupational options congruent with her
education. His view is that all available efforts to improve her functioning
capacity will be important.
[432] Dr. Wallace
recommended that when her treatment team deemed it appropriate, Ms. Gabor
would likely benefit from vocational counselling to explore and clarify her
residual occupational options in order to make an informed decision about her
future career path. Taken within the private sector, such counselling would
cost approximately $750-$1,250, depending upon the amount of time required. His
suggestion is that Ms. Gabor wait until her physical, cognitive, and
psychological functioning has plateaued before undergoing the vocational
counselling so that her career exploration is based on a better understanding
of her residual capabilities.
(f) Sharyle
Jewett
[433] Ms. Jewett
is an occupational therapist and rehabilitation consultant experienced in
providing rehabilitation services and performing private rehabilitation
assessments. Based on her evaluation of Ms. Gabor at home on March 13,
2014, and her review of medical documentation and consultation with family
members and treating professionals, Ms. Jewett provided a series of
recommendations aimed at assisting Ms. Gabor to maximize her function and
independence in both vocational and avocational activities.
[434] Ms. Jewett’s
report provides the details of the cost and replacement time (if necessary),
information about the possible supplier, and her rationale in respect of each
recommendation. I will address them under Ms. Gabor’s claim for damages
for her future care.
·
Defendants Experts
(a) Dr. Rehan Dost
[435] Dr. Dost
completed his residency in neurology at the University of Western Ontario in
1999. He is currently in private practice in British Columbia as an experienced
neurologist and an electromyographer.
[436] Dr. Dost
performed a clinical neurological examination of Ms. Gabor on
July 15, 2013. His expert report of the same date (excluding appendix
II) was admitted into evidence.
[437] Dr. Dost
summarized Ms. Gabors reported recollections of the Accident as follows:
● She
saw a flash of white vehicle, heard a loud bang and recalled the impact.
● She
does not recall which way her body moved.
● Her
next memory was of an individual helping her out of the vehicle.
● She
had to exit out of the passenger side because the driver-side door was crushed.
● Emergency
medical services and police arrived at the scene.
● She
was very emotional, in shock, and described herself as disoriented. When Dr. Dost
asked her what she meant, she replied that she was in shock, extremely
emotional and had a difficult time focusing.
● She had
pain in her back, neck, and both wrists and was developing a headache.
● Her
family came to the scene; she could not recall if she had actually called them.
● She was taken to
a clinic that day and was evaluated and discharged.
[438] Dr. Dost
agreed that he had made two errors in his summary of Ms. Gabor’s report to
him about the Accident. One mistake on this key matter was that he recorded
that she said she saw a flash of light. Secondly, he noted that she reported
she had been taken to the hospital where she had a very cursory examination. Both
pieces of information are incorrect. Dr. Dost also recorded that Ms. Gabor
told him she recalled the impact of the collision. Ms. Gabor testified
that she did not believe she had told him she recalled the actual impact
because she does not recall it, although she may have a memory of the sound of
it.
[439] In Dr. Dosts
opinion, Ms. Gabor did not sustain a brain injury of any kind as a result
of the Accident. His opinion was constructed on seven main pillars:
(1) She experienced no
loss of consciousness.
(2) She
did not attend the hospital via emergency medical services, which unlike Dr. Smith,
Dr. Dost described as being highly unusual for an individual who had
sustained a traumatic brain injury.
(3) Dr. Dost
considered it significant that Dr. Tan did not make a diagnosis of
concussion or mild traumatic brain injury when she examined Ms. Gabor on
the day of the Accident. Strangely, his report does not make reference to Dr. Tans
entry a week later where she did diagnose concussion. Perhaps he had not been
supplied with that record or perhaps he disregarded it as unimportant.
(4) Dr. Dosts
interview of Ms. Gabor revealed no pre‑Accident amnesia or loss of
consciousness because she recalled the impact of the collision. He acknowledged,
however, that she may have experienced an extremely brief period of post‑Accident
amnesia, being the gap in her recall between the time her vehicle was struck and
when she was helped out of her car on the passenger side. In his view, that
gap in her memory should not be interpreted as reflective of any traumatic neurological
disruption. His reasoning was threefold: (i) gaps in memory are the
expectation not the exception because the human mind does not record every
sequence of every event; (ii) there is a natural attrition of memories with time;
and (iii) these factors are particularly relevant where there has been a
psychologically relevant event such as a motor vehicle collision.
(5) There
was no documented disorientation or confusion. Dr. Dost considered Ms. Gabor’s
self-report of disorientation to be meaningless due to its non-specificity. He
elaborated that disorientation is a term used by medical professionals to
describe individuals who do not know who, where or when they are or cannot
follow simple commands. Dr. Dost remarked that subjective disorientation
can occur with pain or with being emotional, and those factors would fully
account for Ms. Gabors subjective reports of symptoms.
(6) Symptoms
such as headaches, dizziness, psychological issues and cognitive difficulties
after the Accident cannot be used, in isolation, to ground the diagnosis of mild
traumatic brain injury. All of the medical experts agreed with this
fundamental proposition.
(7) The effects of pain, sleep
alteration and psychological duress are far more plausible explanations for Ms. Gabor’s
symptom complex than is mild traumatic brain injury.
[440] The
defendants emphasize, as had Dr. Dost, that any gap in memory experienced
by Ms. Gabor would have been extremely brief. However, the preponderance
of the evidence, including Mr. Boilards testimony, does not establish that
Ms. Gabor was assisted from her car within mere seconds of the collision
such that the gap in her memory was fleeting. Even if the gap had been extremely
brief, as it was characterized by Dr. Dost, none of the medical experts opined
that a short duration of amnesia militated against the likelihood that the
individual had sustained a mild traumatic brain injury, or otherwise did not satisfy
the accepted diagnostic criteria.
[441] One of the
reasons given by Dr. Dost in support of his view that Ms. Gabors gap
in memory should not be interpreted as reflecting a mild traumatic brain injury
was the natural attrition of memories over time. However, in her retelling of
the Accident from the outset, I find that Ms. Gabor credibly and
consistently reported that gap in her memory. She has never been able to fill
in that blank. That fact discredits Dr. Dosts reasoning that the gap is partially
explainable by the gradual wearing away of her memory with the passage of
time.
[442] Dr. Dost
did not challenge the legitimacy of the diagnostic elements of mild traumatic
brain injury endorsed by the ACRM, which permits self‑reporting of the
criteria. However, he testified that one has to be cautious and circumspect in
applying any self‑reported factors. His view accords with common sense.
[443] Dr. Dost
agreed that neuropsychological testing of the kind conducted by Dr. Bogod provides
excellent discriminant validity in identifying cognitive deficits and
abnormalities and their effect on a person’s level of function. He does not take
issue with the results of Dr. Bogod’s testing of Ms. Gabor. He emphasized
that what Dr. Bogods testing cannot reveal is the diagnosis or the reason
for the presence of the measured deficits.
[444] As to
etiology, Dr. Dost stressed that non‑brain injury factors have been
found to play a significant role in the pathogenesis of post‑concussion
syndrome. Given that, he considers it vital that the assessor search for
clinical co‑founders, which he believes typically offer far more
persuasive and treatable explanations for the cognitive complaints. Those co‑founders
would include the well‑documented cognitive inefficiencies strongly
associated with sleep disruption, psychological duress and/or poorly controlled
pain. Dr. Dost clarified that, in Ms. Gabors case, psychological
duress" referred to the convergence of her mild psychiatric symptoms (i.e.
her depressed mood and anxiety issues), which he conceded may not satisfy the
clinical threshold to support a formal diagnosis, plus the effects of two other
factors: the litigation effect and iatrogenesis, also known as the diagnostic
threat.
[445] I found
troubling the lack of depth in Dr. Dosts analysis as to the degree that Ms. Gabor’s
mild, and possibly subclinical, psychological symptoms contributed to the
psychological duress that he opined is responsible for her cognitive deficits. Of
similar concern was that Dr. Dost did not satisfactorily explain how it
was that such cognitive deficits have persisted in the face of Ms. Gabors
much improved psychological condition and pain. As a further side note, I
question whether this differential diagnosis might fall outside of Dr. Dosts
expertise as a neurologist in any event.
[446] Dr. Dost
testified that the diagnostic threat is a condition created by the process of
medicine itself. Expressed in simple terms, if a doctor, who is an
authoritative figure, tells the patient she is brain damaged, then she will
behave as though she has brain damage and that will have a significant impact
on her neurological function. In other words, a misdiagnosis of mild traumatic
brain injury can result in a patient, who does not have such an injury,
displaying cognitive symptoms that are consistent with it.
[447] Dr. Dosts
evidence concerning the presence and application of the diagnostic threat was also
deficient on specifics. He did not adequately identify the precise diagnosis
or diagnoses that he says triggered the diagnostic threat in Ms. Gabors
case. I am left wondering whether he was referring to Dr. Tan’s warning
on July 4, 2011 to keep a lookout for the signs and symptoms of a concussion,
or to her actual diagnosis of concussion made one week later (even though he
does not refer to that diagnosis in his report), or whether he was referring to
a diagnosis subsequently given to Ms. Gabor at the G.F. Strong Rehabilitation
Centre or by one of the other medical experts who assessed her. The failure to
pinpoint the diagnosis or diagnoses said to be at the core of the diagnostic threat
seriously undermined the force of Dr. Dosts opinion as to the influence
of that factor upon Ms. Gabors persistent cognitive impairments. As
well, there was no cogent evidence as to whether or how the effects of
iatrogenesis (which, if it did apply in Ms. Gabors case, was itself
clearly caused by the Accident), might ever dissipate or resolve.
[448] Also concerning
is that, in his report, Dr. Dost described it as highly unusual that Ms. Gabor
had not been taken to hospital and relied on that fact in concluding that she
had not sustained a brain injury. Yet, at trial he readily conceded that an
individual could sustain a mild traumatic brain injury and not go to the
hospital.
[449] Another
problem is the reliance Dr. Dost placed on the inadequately explained notion
of how the litigation effect played a contributory role in the development of
Ms. Gabors cognitive deficits. Ms. Gabor acknowledged that being
involved in this case was not a walk in the park and mentioned, in
particular, that her examination for discovery and attending at the various
defence medical appointments had been stressful. However, her testimony,
buttressed by the evidence of her parents and Ms. Olson, established that
by and large she had elected to take a disinterest in the litigation process. Ms. Gabor
effectively delegated that role to her parents until increasing demands were
made upon her as things intensified closer to the trial date.
[450] During his
cross-examination Dr. Dost appeared to distance himself from the importance
of this factor. He explained that he had not canvassed the topic with Ms. Gabor
to assess its effect upon her, and conceded that it was only a possible
contributory factor which he had considered relevant essentially because some
of the literature indicated it could be. Simply presuming that it applied as a
causative factor in Ms. Gabors case served to undercut the potency of Dr. Dosts
opinion and detracted from his sway as an expert. I would add that Dr. Dost
did not sufficiently identify the circumstances in which it was anticipated
that the impact of the stress from this litigation would no longer influence Ms. Gabors
cognitive function (e.g. once the trial ended, or when Reasons for Judgment
were issued, or following an appeal, or at some other turning point).
[451] In one of
the appendices to his report, Dr. Dost provided commentary on the natural
history of singular instances of mild traumatic brain injury and the small proportion
of that population, between five and fifteen percent, who fall outside of the
usual expectations for complete recovery and go on to experience post-concussion
syndrome. At trial, he explained that in preparing that appendix, he had put aside
his opinion that Ms. Gabor did not incur a mild traumatic brain injury,
and for the purpose of his analysis only, assumed that she had indeed sustained
such an injury. It was within that highly qualified context that Dr. Dost
discussed the medical controversy surrounding the concept of post-concussion
syndrome, emphasizing among other things that non-brain injury factors are at
play in causing symptoms consistent with post-concussion syndrome. The
majority of his remarks were stated in general terms with citations to the
references he relied on for them, and were not said to be specific or
necessarily applicable to Ms. Gabor. Many of the propositions he espoused
had also been mentioned by Drs. Smith, Bogod and Caillier in their respective
reports and are not contentious.
[452] When
explaining the relationship of the appendix to his main report and the
alternative discussion it was intended to raise, Dr. Dost agreed that, in
the absence of MRI imaging showing otherwise, Ms. Gabor fell within the
class of uncomplicated mild traumatic brain injury cases. Ms. Gabor’s
counsel construed Dr. Dosts statement as being a concession or a new
opinion to the effect that Ms. Gabor had indeed suffered a mild traumatic
brain injury from the Accident. However, it was abundantly clear that in
giving his testimony Dr. Dost was not expressing that opinion or in any
way retreating from his primary opinion that Ms. Gabor did not suffer a
mild traumatic brain injury in the Accident.
[453] In Dr. Dosts
opinion, Ms. Gabors headaches were consistent with chronic headaches associated
with whiplash and they did not result in any neurological impairment or
disability. The most he could say about her cervical mid-back pain and
bilateral hip pain was that they were not neurological in origin. Ms. Gabor
is not asserting that they are.
[454] Dr. Dost
concluded that from a neurological perspective, Ms. Gabor was not impaired
or disabled, did not require any rehabilitation program therapy or other
treatment, and was not restricted in terms of her employment or impaired for
future employment. It is crucial to appreciate that his opinion is
specifically couched in terms of, and is confined to, a neurological point of
view.
[455] The
cumulative effect of the many shortcomings of Dr. Dosts opinion is such
that I prefer the opinions of Ms. Gabors medical experts on every point
of disagreement.
(b)
Dr. Kulwant Riar
[456] Dr. Riar
is a psychiatrist in private practice. The majority of his work is forensic in
nature including civil and criminal matters. He is a tenured Clinical
Professor in the Faculty of Medicine at the University of British Columbia and
is a member of the medical staff at Vancouver General Hospital. Dr. Riar
interviewed Ms. Gabor on December 2, 2013, and produced his expert report
dated February 13, 2014. He has less experience than does Dr. Smith
in diagnosing mild traumatic brain injury.
[457] In terms
of physical injuries, Dr. Riar opined that Ms. Gabor suffered
musculoskeletal sprains as a result of the Accident, the majority of which had now
settled leaving only residual pain that bothered her from time to time. He
further opined that the Accident was responsible for aggravating her pre‑existing
aches and pains. He found that those symptoms had also resolved and were not
a big issue around the time of his interview.
[458] Ms. Gabor
disclosed her pre-Accident psychological symptoms to Dr. Riar. She said that
she had a small blip of hormonal depression in her teenage years that was not
bad and did not last long. She also told him about her short‑lived
purging of food that also occurred when she was in her teens. She described
herself as always having been a bit of a worrier and perfectionist. Dr. Riar
was also aware of the counselling Ms. Gabor received from Ms. Scott
and that she had been prescribed Ativan by Dr. Harvey in July 2010.
[459] Dr. Riar
postulated that before and after the Accident, Ms. Gabor carried ongoing neuroticism,
by which he meant that it is her personality to be worried and have anxiety in difficult
scenarios. He added that such personalities do not do well under stressful
situations. At the same time, he agreed that the best indicator of a person’s
level of function is how they operate in the world, which confirmed that Ms. Gabor
was functioning well prior to the Accident.
[460] Dr. Riar
opined that the Accident was a sufficiently stressful event to lead to the
development of Ms. Gabors symptoms of depression and anxiety, and agreed that
at some point after the Accident, she met the diagnosis of Adjustment Disorder.
He observed that her psychological symptoms had settled and were not an issue at
the time of his assessment.
[461] Dr. Riar
found that Ms. Gabors memory leading up to the time of the Accident was
unclear. He recorded that she told him she remembered making a left turn at a T
intersection and seeing a flash of white, and then having the feeling that she
had to get out of the way fast. She relayed to him that it happened so fast
that it was hard for her to remember if there was an impact or a bang, but
clarified that she knew at the time that her vehicle was hit. She told Dr. Riar
that her car came to a stop and somebody came to help her out from the
passenger side. Ms. Gabor said she did not remember turning off the
ignition but is sure that she did so. She remembered crying very hard due to
pain and shock and felt that everything was a blur at the time. She also recalled
that the police and paramedics were on the scene and that someone helped her
call her father.
[462] During his
interview of Ms. Gabor, Dr. Riar detected no problems with her
attention or concentration and found her short‑term memory to be good. He
concluded that she displayed no symptoms suggestive of post‑concussion
syndrome. He also made the statement that such symptoms were not apparent from
the collateral information of her family doctor. At the same time, however, he
did not challenge the findings of Dr. Bogod in respect of Ms. Gabors
measured cognitive impairments arising from the Accident. In fact, he agreed
that her deficits existed and claimed he was not suggesting that she was putting
it up on testing, which I have interpreted to mean he was not implying that Ms. Gabor
was feigning her deficits on testing. Muddling the contours of his analysis
further, in cross‑examination Dr. Riar agreed that, while he did not
find signs of irritability or cognitive deficits during his interview of Ms. Gabor
or from the review of her records, he nonetheless did not doubt they existed.
[463] As had Dr. Dost,
Dr. Riar concluded that Ms. Gabor’s memory was intact for events
leading up to the time of impact but that afterward there was some disruption
of recall for a short while. Sharing similarities with Dr. Dosts
opinion, Dr. Riar opined that, while it was possible that Ms. Gabor’s
disruption of memory stemmed from a mild concussion/mild traumatic brain
injury, the most likely causes were the psychological factors related to her
pre‑existing neuroticism and psychological reactions to various kinds of
stresses including physical pain, Mr. Rauschers move to Montreal, the
interruption of her life caused by the Accident, this litigation, and the
diagnostic threat.
[464] In
cross-examination, Dr. Riar agreed that there are instances where mild
traumatic brain injury does not show up on brain imaging. He also acknowledged
that many of the symptoms Ms. Gabor had experienced after the Accident were
indicia of a mild traumatic brain injury.
[465] Dr. Riar
gave unsatisfactory evidence purporting to explain his opinion that chronic
pain was one of the causes of Ms. Gabor’s persistent cognitive deficits in
the face of his conclusion that the majority of her physical symptoms and pain
had settled, and that her residual pains were not a big issue. His purported
explanation as to how Ms. Gabor’s psychological symptoms, which he likewise
described as being settled, were contributing to her persistent cognitive
deficits was also disquieting.
[466] Dr. Riar
admitted that he had not asked Ms. Gabor whether she found this litigation
to be a stressful matter and did not examine any extrinsic evidence to assess its
potential impact. Much like Dr. Dost, he presumed that the litigation was
a stressor to her because he presumed, based on his reading of medical literature,
that litigation causes stress to any person involved in it. From that, he made
the reasoning leap that the litigation stress experienced by Ms. Gabor was
of sufficient intensity to play a contributory role in her cognitive failings.
That was essentially the full extent of Dr. Riars analysis on that point.
[467] Dr. Riar
admitted that it was very difficult to know whether the diagnostic threat was
at play in this or in any particular case. He agreed that he had not really probed
that potential connection in the case at hand. And yet, he had identified it
as a causative factor.
[468] My
criticisms of Dr. Dosts shallow analysis of the litigation effect and the
diagnostic threat as they pertain to Ms. Gabor apply equally to Dr. Riars
analysis.
[469] Despite
his acknowledgement that, after the Accident, Ms. Gabor met the diagnosis
of Adjustment Disorder, Dr. Riars view was that Ms. Gabor was never
disabled due to psychiatric reasons. The definition of disability he applied
referred to an inability to perform activities of daily living on an ongoing
basis and impairment in the ability to work. He confirmed that he was not
purporting to opine on whether her cognitive deficits may have disabled her
after the Accident.
[470] When he
interviewed Ms. Gabor, Dr. Riar did not think she required any
psychiatric intervention on an urgent or regular basis. That said, he believes
she could benefit from cognitive behaviour therapy to address her ongoing neuroticism.
He described her psychiatric prognosis as guarded and forecasts episodes of
depression and anxiety in her life in stressful situations. He opined that
would be the case even if Ms. Gabor had not been involved in the Accident.
[471] I have noted
significant misgivings about Dr. Riars opinion. To the list I would
add that his written opinion and trial testimony was confusing, if not
internally inconsistent, on some pivotal matters. All things considered, I
have concluded that it is unsafe for the Court to rely upon Dr. Riars opinion.
I prefer, instead, the opinions of Drs. Smith, Bogod, Cheung and Caillier on
every point of divergence.
(c) Dr. Richard
Kendall
[472] Dr. Kendall
is an experienced orthopedic surgeon who has practised for more than 20 years. He
is also a board certified surgeon with the American Board of Orthopedic Surgery,
a Clinical Assistant Professor in the Faculty of Orthopedics at the University
of British Columbia and an educational site director for undergraduate and
postgraduate orthopedic education in Richmond. Ms. Gabor’s counsel did
not require Dr. Kendall to attend trial for cross‑examination.
[473] Dr. Kendall’s
primary report dated February 15, 2013 is based on his assessment of Ms. Gabor
carried out that day. His addendum report of May 12, 2014 took into
account his receipt and review of additional documents, including Dr. Cailliers
two reports and the report of Ms. Jewett. Dr. Kendall did not re‑examine
Ms. Gabor at that time.
[474] Dr. Kendalls
report states that Ms. Gabor expressed the opinion that she had no pre‑existing
history of neck or back complaints before the Accident. In my view, the
evidence was not adequately developed to convince me that Ms. Gabors
apparent omission belies a deliberate attempt on her part to conceal her pre‑Accident
physical complaints from Dr. Kendall or this Court. At most, it signals
the need for the Court to be cautious in assessing the reliability of her
evidence.
[475] In Dr. Kendalls
opinion, Ms. Gabor’s pre-Accident complaints of symptoms in her neck and
upper and lower back likely arose from her activities as a belly dancer. He
opined that after the Accident, she had soft tissue injuries to a number of
areas, including her neck, upper back, low back, hip, wrists and knee. He
found that the symptoms involving her wrists, hip and knee had resolved and
were normal on examination. Dr. Kendall does not foresee their recurrence
and opined that it was unlikely that future symptoms in those regions would be
related to the injuries induced by the Accident.
[476] In Dr. Kendall’s
view, Ms. Gabor’s persistent neck and upper back symptoms likely represent
whiplash‑associated disorder, type II, without significantly identifiable
neurological symptoms, from the Accident.
[477] In terms
of recommendations, Dr. Kendall suggested the following:
·
Ms. Gabor work on improving her abdominal core strength to
help her back symptoms.
·
She continue to partake in aerobic exercise such as walking,
swimming and/or bicycling.
·
She continue to attend physical therapy once per week to assess
her exercise technique. He does not recommend passive treatment such as
passive physiotherapy, massage therapy, or chiropractic sessions because there
is nothing in the literature to suggest that they would be effective treatments
for Ms. Gabor’s type of symptomology at this stage of recovery.
[478] In Dr. Kendall’s
opinion, Ms. Gabor does not require referrals to any specific specialists.
Nor does she need any special braces or orthotics, or household or workplace
modifications. With respect to the symptoms she experiences with prolonged
sitting at a computer, he would encourage her, while recovering, to take
momentary breaks to stand and stretch to relieve the static sitting postures
she assumes.
[479] Dr. Kendall’s
ultimate outlook for Ms. Gabors physical health remains good for complete
recovery. He ventured that she will probably find that as she does more
activities she will see a more rapid improvement. However, he also opined that
given her pre‑existing history of neck and upper back complaints, it is
difficult to know whether she will settle back into that same pre-Accident symptom
pattern once she has recovered from her Accident‑induced physical symptoms.
He considered it impossible to know whether her present soft tissue symptoms
are similar to those that preceded the Accident.
[480]
Dr. Kendall disagreed with Dr. Cailliers conclusion that Ms. Gabors
pain is chronic and likely permanent. His rationale is largely tied to his
belief that Ms. Gabor has not reached her level of maximum recovery and
that further improvement is conceivable:
…I cannot guess as to whether
she will become pain‑free or not, although if she were to actively pursue
some of the options described in Dr. Cailliers report, one could
conceivably see improvement in her symptoms. I am concerned that as more times
[sic] passes without any institution of these measures, then she is certainly
at risk for developing a chronic pain situation.
(d) Samantha Gallagher
[481] Ms. Gallagher
holds a Master of Education in vocational rehabilitation counselling. She is
experienced in completing vocational assessments to determine future
employability and assisting in the development of rehabilitation and return to
work plans and in the job search process. She provided a rebuttal report dated
May 8, 2014 to Dr. Wallace’s opinion.
[482] Ms. Gallagher’s
report is structured as a critique of certain of Dr. Wallace’s
methodologies and conclusions. She did not interview Ms. Gabor for the
purposes of her opinion and was not required to attend trial for cross‑examination.
[483] Ms. Gallagher
is sceptical that Ms. Gabor would have obtained a teaching position at a
post-secondary institution on the reasoning that she does not hold a doctorate
degree. She supposed that with her MAA, Ms. Gabor would have been better
suited to sessional teaching positions at the college level. Ms. Gallagher
was clearly unaware that a Ph.D. is not a requirement to teach at university or
college in the area of applied arts, and that an MAA continues to be considered
a terminal degree in that field.
[484] Ms. Gallagher
suggested that other factors, aside from Ms. Gabor’s poor performance in
the interview at Kwantlen in 2011 shortly after the Accident, may have
negatively impacted her chances of obtaining that position. It cannot be known
on the evidence why Ms. Gabor did not secure that job. To the extent that
Ms. Gallagher’s observation was meant to bolster the defence position that
it is unlikely that Ms. Gabor would have secured a teaching position,
absent the Accident, it was of negligible value because it relies on the
compromised post-Accident presentation of Ms. Gabor to measure her
pre-Accident potential. Ms. Gallagher does not address the core issue of
the extent to which Ms. Gabor’s potential employability has been impaired
as a result of her injuries.
[485] In his
report, Dr. Wallace commented on Ms. Gabor’s lack of success in
obtaining additional gallery exhibitions since her show at the Gallery in
January 2013. Ms. Gallagher noted that the majority of Ms. Gabor’s
exhibitions and shows have occurred in Lethbridge. She pointed out that
Vancouver is a larger market with many more artists with much higher profiles,
all of whom would be competing for exhibitions. She suggests that Ms. Gabor
would have had difficulty establishing herself as an artist in Vancouver and
obtaining opportunities to exhibit her work, for reasons quite unrelated to the
Accident.
[486] Ms. Gallagher’s
blanket supposition is founded more on speculation than it is on the evidence. Ms. Gabor
was well aware of the kinds of effective approaches required to promote herself
and her art and gain exposure as an artist. She was able to do so successfully
before and following the completion of her BFA, and obtained numerous
opportunities to show her work and build her exhibition record while residing
in Lethbridge. Ms. Gabor had not yet had much of an opportunity to do the
same in Vancouver, other than to develop her profile as a talented graduate
student.
[487] While I
accept that it would have been more difficult for Ms. Gabor to
successfully pierce the larger Vancouver art scene, it cannot reasonably be
inferred that she would have had a low prospect of success or would likely have
failed at it. Ms. Gabor had impressed her professors at Emily Carr, which
is the preeminent art school in British Columbia, and they considered her to be
a talented artist with momentum. Dr. Lowry testified that the
preoccupation in her art of themes of cultural hybridity and ethnicity were
popular concepts that resonated with Vancouver’s diverse population. He
believed she had the potential to develop a practice as an artist, which he did
not confine to a particular geographic area.
[488] Ms. Gallagher
queried the nature of the tasks that filled the six hours or so of productive
activity that Ms. Gabor claimed to have each day and how that measure had
been assessed. Dr. Wallace addressed this point in his cross‑examination
and provided the following examples that Ms. Gabor had reported to him:
reading, sewing, perhaps doing a small amount of art, as well as training,
promoting and teaching belly dancing. Dr. Wallace candidly stated that
there was no way for him to measure the amount of time Ms. Gabor spent
involved in these activities except to rely on her self‑report.
[489] One of Ms. Gallagher’s
principal criticisms of Dr. Wallace’s opinion relates to the lack of
participation by Ms. Gabor in a work trial by which her ability to meet
employment demands could be more realistically assessed. She asserts that
there is no way to know what employment Ms. Gabor is truly capable of
doing without having the results of a work trial in a conventional employment
environment.
[490] Dr. Wallace
agreed that work trials, volunteer work and a gradual return to work are all
important indicators of an individual’s employment capabilities. However, his
view was that a work trial would only furnish useful information if the job
being trialed was commensurate with Ms. Gabor’s level of education and
involved cognitively demanding tasks. Taking on a volunteer position, such as
a docent at an art gallery, would not necessarily provide a useful facsimile
for competitive employment. Dr. Wallace regarded the graphic design work Ms. Gabor
undertook for Mr. Rauscher’s company in Montreal as an example of a work
trial, and that her performance provided information about whether she was
capable of meeting the demands of an arts‑related position. I am in
agreement with Dr. Wallace but would add this key caution: it must not be
overlooked that during her stint in Montreal Ms. Gabor had not yet
attained her maximum cognitive recovery.
[491] While an
appropriate work trial may well be the preferred milieu in which to test Ms. Gabor’s
potential vocational capabilities and limitations, there was no evidence of an
appropriate employer standing ready to hire and train her for that purpose. It
is for precisely that reason, the opinion evidence of vocational experts can be
so helpful to the court. Of necessity, my findings concerning Ms. Gabors
residual employability potential will be based upon the facts and inferences
drawn from the evidence as it stands.
[492] Ms. Gallagher
noted that pursuing fashion merchandising was generally in keeping with the
level of employment that Ms. Gabor held before the Accident. That
observation was incorrect in that it overlooked the nature of Ms. Gabors
employment at Gallery for two and a half years.
[493] Dr. Wallace
emphasized that in assessing Ms. Gabor’s residual employment potential, it
was critical to consider how effective she can be in completing the
responsibilities of the particular position. The neuropsychological testing
completed by Dr. Bogod demonstrated that she has cognitive inefficiency in
attention, memory, and processing speed and indicated to Dr. Bogod that Ms. Gabor
was probably restricted to types of work that were not cognitively demanding. Dr. Wallace
characterized her impairments as significant and considered them red flags relative
to Ms. Gabors ability to meet the demands of positions that require
higher and/or sustained cognitive functioning.
[494] Ms. Gallagher
reasoned that because Ms. Gabor has been able to return to teaching and
performing belly dancing and has built up her endurance, stamina and tolerance
related to such work, she likely has the potential to gradually increase her
participation in other types of employment. Running her modest little belly
dancing business and performing the dances and giving lessons a few times a
week is not much of a cognitively demanding exercise. Moreover, Ms. Gallaghers
extension of logic does not adequately take into account Ms. Gabors cognitive
deficits and fatigue, which are her chief ongoing vocational impairments, and
the extent to which they restrict her residual employability potential. She
neglected to consider the complete picture of Ms. Gabor.
(e) Jeff Padvaiskas
[495] Mr. Padvaiskas
is an occupational therapist who, for approximately 20 years, has prepared work
capacity evaluations, cost of future care assessments and critiques of medical
legal reports. His report responds to Ms. Jewetts cost of future care
report. He did not assess Ms. Gabor.
[496] I will
address the pertinent aspects of his report under Ms. Gabor’s claim for
damages for her future care.
·
Economic Expert Evidence
[497] The
parties each tendered a report from an experienced economic expert pertaining
to Ms. Gabor’s past and future loss of income‑earning capacity, and
the cost of her future care.
[498] The
experts adopted similar conceptual approaches to the measurement of Ms. Gabor’s
loss of earnings stream. They each started the clock from the date of the Accident
because Ms. Gabor, having graduated by that time, satisfied the criteria
of a labour force participant. They both recognized her graduate degree in
their estimations.
[499] For his
projections, Ms. Gabors expert, Sergiy Pivnenko, considered the earnings
of individuals within two broad classifications:
(i) the
2011 National Household Survey (NHS) average earnings and labour force status
values for B.C. resident females with a masters degree (Female All Masters
2011); and
(ii) the
2011 NHS average full‑time, full‑year earnings values for B.C.
resident females with a masters degree employed in occupations falling within
the category of college and other vocational instructors (Female Instructors).
[500] The Female
Instructors group applied to a broad range of instructors, including tenured
professors, across several disciplines, one of which was fine arts. Both
experts agreed it was appropriate to incorporate a five-year earnings lag from
2011 onward.
[501] Mr. Pivnenko
also considered these two categories as they applied to B.C. resident males. He
explained that the female groupings are intended to represent estimates of what
young women at the start of their working lives probably would earn. The
comparative data for males is meant to represent estimates of what women could
earn. The distinction between would and could arises from
the statistical differences in the average earnings of women and men because of
factors such as women spending more time out of the workforce and/or working part-time
largely because of family considerations.
[502] The
earnings tables formulated by Mr. Pivnenko have Ms. Gabor working
until age 70. However, they incorporate deductions for a pattern of gradually declining
work force participation with age, and to account for additional contingencies such
as unemployment rates and part‑time factors. His projected earnings streams
were all discounted to reflect their present value.
[503] Mr. Pivnenko
calculated the average full‑time annual earnings of the members of the Female
Instructors category as $80,486. The comparative for the Female All Masters
2011 group was $78,227. The present value of the estimated without‑Accident
lifetime earnings for a member of the Female All Masters 2011 group was
$1,358,706; that calculation for the Female Instructors group yielded earnings
of $1,426,984.
[504] Mr. Pivnenko
explained that the data indicated that if Ms. Gabor used her MAA to obtain
full‑time teaching work at a college, her expected earnings would exceed
the Female All Masters category. On the other hand, in non‑teaching
occupations it was unlikely, given Ms. Gabor’s field of study, that her
earnings would be as much as those holding a masters degree in other
disciplines.
[505] In order
to reflect the lower earnings of women with an MAA/MFA compared to women
holding a masters degree in other areas, Mr. Pivnenko proposed that the annual
earnings of $78,227 attributable to the Female All Masters 2011 class be
discounted by about 25%. He based that percentage on relatively dated census information
(i.e. 2001) reporting the average earnings of B.C. women with an MAA/MFA. Mr. Pivnenkos
discount factor translated into a deduction of approximately $10 per hour, or a
reduction from $78,227 to $58,000 annually. Based on that, he calculated the
present value of the estimated without‑Accident lifetime earnings for a
female holding an MAA/MFA to be $997,828, before non‑wage benefits. His table
also permitted a range of other deductions to be made in order to estimate Ms. Gabor’s
projected lower earnings in the post‑Accident scenario.
[506] Mr. Pivnenko
provided comparative earnings data for employment in other occupations identified
by Mr. Wallace, including a fine arts technician, artist, and fashion
merchandiser. The two applicable classification codes for a fine arts
technician were conservators and curators, and archivists. Based on the
relevant national occupational classification, women in B.C. who worked as full-time
conservators and curators earned an average annual wage of $46,370. Average
earnings based on the NHS data were slightly lower. The NHS‑based
estimate of earnings for female archivists was $48,720, but was nearly $20,000
higher among women who held a masters degree.
[507] For women
with a masters degree who came within the classification of painters,
sculptors and other visual artists, the estimated average earnings were $31,750
per year. It was nearly double for males. Women working as fashion merchandisers
(retail and wholesale buyers) earned an average of $48,150. There was no
indication in the NHS data that having a masters degree was likely to increase
the earnings of women in that line of work. However, earnings were
considerably greater for their male counterparts with a masters degree, who
earned an average of $77,450 annually. Mr. Pivnenko acknowledged that the
sample populations of the female archivists and the males working as
merchandisers were very small.
[508] The
defendants expert, Douglas Hildebrand, considered the data for the Females All
Masters 2011 to be far too broad in light of Ms. Gabor’s educational area.
He also disagreed with the appropriateness of considering the earnings of the Female
Instructors category. His view was that occupational earnings projections are
typically suitable for individuals who, unlike Ms. Gabor, have established
a specific career path. Nor did Mr. Hildebrand consider it valid to apply
male earnings and contingency data because it carried the risk of overstating Ms. Gabor’s
earnings. He also disagreed with Mr. Pivnenkos adjustment for labour
force participation.
[509] In Mr. Hildebrands
view, there was no need to approximate the data for Ms. Gabors field of
study by modifying the earnings of the Female All Masters 2011 grouping as Mr. Pivnenko
had done. Instead, he considered the 2006 Census data derived from the
earnings of B.C. female residents with a masters degree in fine arts/arts
studies as a more accurate proxy from which to project Ms. Gabors
earnings. It had the added advantage that it avoided speculation about changes
in occupations throughout her working life.
[510] For
comparison purposes, Mr. Hildebrand provided alternate calculations. He
tabulated the lifetime income projections in respect of three cohorts for each
gender with the following educational attributes:
(i) the Female
All Masters 2011 relied on by Mr. Pivnenko;
(ii) the same group but based on the
data obtained from the 2006 Census (Female All Masters 2006); and
(iii) BC
females with a masters degree in arts/arts studies based on the 2006 Census (Arts
Master’s 2006").
[511] Included
within the Arts Masters 2006 group were individuals who taught at the college
and/or university level. He adjusted for trial date dollars over the future
and for labour force participation, unemployment and part‑time work, for
each statistical group.
[512]
Mr. Hildebrand arrived at the following estimations of income for B.C.
resident females:
Past Period
(net)
Arts Masters
2006 $67,881
Female All Masters
2006 $77,270
Female All Masters 2011
$88,551
Future
Period (Lifetime)
Arts Masters
2006 $851,149
Female All
Masters 2006 $1,272,142
Female All Masters 2011
$1,304,075
[513] In comparing
the earnings of the Arts Masters 2006 category to the Female All Masters 2006
group, Mr. Hildebrand concluded that the full‑time, full‑year
earnings of the former classification were 28% lower than those of the latter.
The disparity was even greater when further contingencies, such as higher
labour non‑participation, unemployment and part‑time work, were factored
into the mix. He pointed out that assuming the lifetime earnings differential
between the Arts Masters 2006 and Female All Masters 2006 groups remained
roughly unchanged between the two survey years, application of the 2011 NHS
data would increase the future earnings for the Arts Masters 2006 category by approximately
two to two and a half percent.
[514] Mr. Pivnenko
agreed that the data used by Mr. Hildebrand regarding the earnings for the
Arts Masters 2006 group was more specific to Ms. Gabor’s field of study
than was the broader Female All Masters 2011 and 2006 classifications, and supported
the 28% deduction that Mr. Hildebrand had used. That said,
Mr. Pivnenko cautioned that the data pertaining to the Arts Masters 2006
group may not be reliable because it was taken from small samplings and, in his
view, incorporated excessively low participation and high employment
contingencies.
[515] Mr. Hildebrand
had obtained a copy of the 2011 NHS earnings data for B.C. females with a
masters degree in fine arts/arts studies; that survey had not been available
at the time that Mr. Pivnenko prepared his report. Mr. Pivnenko agreed that data
indicated that female MAA/MFA graduates earned between 65% and 70% of the Female
All Masters 2011 group. However, he explained that when one filtered out
individuals who studied in foreign countries or moved to Canada with an MAA/MFA,
the unemployment and part‑time factors went down and labour force participation
went up. The shift based on such filtering improved the participation number
by a factor of approximately ten percent.
[516] Mr. Hildebrand
addressed Mr. Pivnenkos concerns about the sample size of the Arts
Masters 2006 group by noting that Statistics Canada suppresses data below what
it considers to be statistically reliable. He conceded that, although Mr. Pivnenkos
filtering parameters presented some other reliability problems, making an adjustment
to reflect where the masters degree had been obtained made a statistical difference
and was appropriate. He further agreed it was reasonable to add about 15% to
the Female Instructors category to reflect non‑wage benefits and ten
percent to the other categories.
[517] The expert
evidence demonstrated that the evaluation of the earnings data of females with
an MAA/MFA is challenging and can be validly approached in more than one way.
CAUSATION
·
Basic Principles
[518] The primary test used in determining causation in
negligence is the but for test. The plaintiff bears the onus of proving, on
a balance of probabilities, that but for the defendants negligent act or
omission, the injury would not have occurred: Athey v. Leonati, [1996] 3
S.C.R. 458 [Athey]; Blackwater v. Plint, 2005 SCC 58; Clements
v. Clements, 2012 SCC 32 [Clements]; Ediger (Guardian
ad litem of) v. Johnston, 2013 SCC 18 [Ediger]. Inherent in
the test is the requirement that the injury would not have happened without the
defendants negligence: Clements at para. 8; Ediger at para. 28.
[519] The plaintiff need not establish that a defendants
wrongful conduct is the sole cause of his injury. So long as a substantial
connection between the harm and the defendants negligence beyond the de minimus
range is established, the defendant will be fully liable for the harm suffered
by a plaintiff, even if other causal factors, which the defendants are not
responsible for, were at play in producing that harm: Farrant v. Laktin,
2011 BCCA 336; Athey; Resurfice Corp. v. Hanke, 2007 SCC 7.
[520] The causation test does not demand scientific
precision and is not to be applied too rigidly. Causation is a practical
question of fact which can best be answered by ordinary common sense: Snell
v. Farrell, [1990] 2 S.C.R. 311.
[521] The concepts of etiology in the medical sphere and
causation at law are not synonymous. This
is because the but for test need only be proved on a balance of probabilities
in contrast to the more rigorous standard that approaches scientific certainty
familiar to the medical field: Midgley
v. Nguyen, 2013 BCSC 693 [Midgley], at para. 172; Munoz v.
Singh, 2014 BCSC 567 at para. 136. Mindful of that key difference, in Tsalamandris v. MacDonald, 2011
BCSC 1138, at paras. 144-146, vard on other grounds, 2012 BCCA 239, Griffin
J. provided her instructive observations in relation to the causation analysis:
[144] Because the but for
test is to be proved on a balance of probabilities, rather than a standard of
scientific certainty, great care must be had in assessing medical evidence.
The human condition is incredibly complex. The precise biological, biochemical
or molecular mechanisms causing many medical conditions are often not known and
may not be known for lifetimes to come, and for the same reason, prognosis and
treatment is also often not certain. In cases where medical causation cannot
by its very nature be proven with certainty, medical experts may not be
comfortable stating a black-and-white opinion as to what caused a patients
condition. Often medical evidence refers to known risk factors for medical
conditions, or a number of causes, precisely because of the experts discomfort
in assigning one cause to a complex medical issue.
[145] In determining causation
in the legal context, courts must be mindful to assess the import and substance
of the expert opinion evidence, and to be cautious about the wording used by
the experts so as to not unduly discount or over-weigh the experts choice of
language when describing medical causation. Ultimately causation is a question
for the court, taking into account the evidence.
[146] It is important for the court
to keep in mind that all that is required to determine these complex medical
issues in the context of causation is for the plaintiff to prove what is more
likely than not. This is what is meant by the but for test: it is more
likely than not, that without the tort, the injury or medical condition would
not have happened.
[522] The court
will exercise caution in inferring legal causation by exclusive or substantial
reference to a temporal sequence of events, which often takes the form of
comparing the plaintiffs condition in the pre- and post-Accident scenarios: Madill
v. Sithivong, 2012 BCCA 62 at para. 20; White v. Stonestreet,
2006 BCSC 801 at paras. 74-75. As I have noted in past decisions, it does
not follow that the judicial insistence of caution signifies judicial thinking
that temporal reasoning is an illegitimate analysis or a branch of logic to be
seldom invoked: Erickson at para. 223; Midgley at para. 171.
·
Causation Analysis
[523] While it
is the case that the question of whether Ms. Gabor suffered from a
pre-existing condition is relevant to the assessment of her damages, the
discussion of causation necessitates consideration of her pre-Accident
condition. I have therefore raised the matter below and will explore it
further when addressing damages.
(a) Physical Injuries and
Chronic Pain
[524] The
evidence establishes that from time to time prior to the Accident, and as
recently as just a few months beforehand, Ms. Gabor had been bothered by
pain in her right shoulder/scapula area and in her thoracic spine region. Those
symptoms manifested infrequently and did not cause Ms. Gabor any physical
limitations or interfere with her functioning. She received medical attention
and a small number of treatments in respect of them.
[525] While I
accept that her pre‑Accident physical symptoms were probably aggravated
by the other more serious physical injuries that Ms. Gabor sustained in
the Accident, they represented a very minor part of her Accident-induced physical
injuries overall. Ms. Gabors aggravated injuries were neither persistent
nor did they represent the main sources of her post-Accident pain or her functional
difficulties.
[526] Ms. Gabor’s
principal physical injuries caused by the Accident were in the nature of soft
tissue injuries to her neck, upper back, low back, hip, wrists and knee and included
a whiplash‑associated disorder, type II, with intense headaches. These
injuries were distinguishable by their nature, severity and chronicity from Ms. Gabors
physical symptoms that came and went in the years preceding the Accident, and
were aggravated by it for a time.
[527] Dr. Kendall’s
disagreement with Dr. Caillier on the question of whether Ms. Gabor
has developed chronic pain from her soft tissue injuries rested on the premise
that she may not yet have reached her maximum level of improvement. It is
noteworthy, however, that he acknowledged that he could not guess as to
whether she will become pain‑free or not", and characterized the
prospect of her improving further as conceivable only.
[528] Weighing the
evidence as a whole, I find it more probable than not that Ms. Gabors
soft tissue injuries incurred in the Accident have resulted in chronic pain, as
opined by Dr. Caillier.
(b) Psychological
Injuries
[529] The
preponderance of the evidence indicates that Ms. Gabors teenage bout of
depression was an isolated episode that occurred 16 years before the Accident, did
not recur and had no lasting effects. I find an absence of cogent evidence to support
the defence assertion that Ms. Gabor had some vaguely specified pre‑existing
condition of depression that was aggravated by the Accident, or that would have
been unleashed absent the Accident.
[530] For the
sake of completeness, I would add that her involvement in purging food and
cutting behaviours were related to her age and the crowd she moved in at the
time. They were short‑lived and have no connection to the symptoms that
manifested in the aftermath of the Accident.
[531] While I
accept that it is in Ms. Gabors nature to be a worrier and to lean toward
perfectionism, the probabilities of the evidence do not establish that she had
a pre‑existing anxiety condition or disorder.
[532] Starting
in 2008, Ms. Gabor had about nine counselling sessions with Ms. Scott.
Except for her checking propensity, the majority of her concerns were of the age
and stage variety. I endorse Dr. Cheungs opinion, supported by Dr. Bogod,
that the mere fact that Ms. Gabor received counselling from Ms. Scott,
which, notably, ended nearly two years before the Accident, does not mean that
she suffered from a diagnosable psychological condition. Indeed, Ms. Gabor’s
medical experts considered it significant that Ms. Scott had not diagnosed
a psychological condition or disorder of any kind. As Dr. Cheung
observed, Ms. Scotts records did not even describe Ms. Gabors
symptoms to be of clinical severity. I accept Dr. Bogod’s view that, at
most, Ms. Scotts clinical records indicated that Ms. Gabor was merely
trying to work through her issues of transient anxiety symptomology.
[533] Crucially,
when Ms. Gabor was being counselled by Ms. Scott, she was highly
functional, living a full life and achieving successful milestones. More
specifically, she applied for and obtained scholarships to at least two prestigious
Canadian art schools, was employed at the Gallery, was in a relationship with Mr. Smith,
worked on her art, exhibited her art and was striving to raise her profile as
an artist in the local art community. The collateral evidence of Mr. Rauscher,
Mr. Suen, Dr. Gabor and Drs. Lantin and Lowry satisfy me that Ms. Gabor
continued along a successful path throughout her graduate studies. She soared
and thrived at Emily Carr and was able to work part‑time, despite the
often gruelling academic pressures, her demanding thesis requirement and the
breakdown of her relationship with Mr. Smith.
[534] That Ms. Gabor
was prescribed 30 tablets of Ativan a year after she stopped seeing Ms. Scott
and a year before the Accident is not sufficient, either by itself or in
combination with any other evidence, to tip the balance and support a
conclusion that she suffered from an anxiety disorder or condition before the Accident.
[535] In sum, the
preponderance of the evidence that I accept does not establish that Ms. Gabor
had a pre‑existing psychological disorder or condition, or that she experienced
subclinical psychological symptoms of the nature or sufficient intensity to
disturb her function.
[536] The medical
experts who opined on the matter essentially agreed, and I find, that the Accident
caused Ms. Gabor to develop an Adjustment Disorder. That disorder entails
a myriad of adverse psychological and behavioural symptoms. Those symptoms
include depression, anxiety, driving and passenger anxiety, intrusive images of
the Accident, nightmares, inability to cope with stress, being easily
overwhelmed, fatigue, reduced self‑confidence and possible denial of her
cognitive deficits.
(c) Brain Injury and
Sequelae
[537] There was
consensus among Drs. Dost, Riar and Smith that Ms. Gabor probably
experienced a post‑Accident gap in her memory from around the time of the
sound of the impact until her car came to a stop, and someone, likely a police
officer, appeared at her passenger side door. That gap satisfies a diagnostic
criterion for mild traumatic brain injury.
[538] I accept Dr. Smith’s
opinion, concurred in by Dr. Bogod, that Ms. Gabor’s measured
cognitive impairments are probably not the product of her psychological
symptoms or psychological duress, fatigue, chronic pain, or a combination of
those factors. Dr. Caillier also persuasively expressed the view that the
cognitive deficits were not caused by Ms. Gabor’s poor sleep or emotional
or psychological symptoms, and both she and Dr. Smith underscored the
difficulty in reliably assessing Ms. Gabor’s involvement in this
litigation as a potential contributing factor.
[539] I conclude
that Ms. Gabor’s gap in memory described above, coupled with the
constellation of her ongoing cognitive impairments, fatigue and other symptoms
that are consistent with mild traumatic brain injury. establishes on the
balance of probabilities that Ms. Gabor suffered a mild traumatic brain
injury in the Accident.
[540] The expert
medical opinion I accept further establishes that, while Ms. Gabor’s
fatigue is to some extent a symptom connected to her Adjustment Disorder, it is
largely secondary to the substantially increased cognitive effort she must now
exert in consequence of her likely permanent cognitive deficits caused by her
mild traumatic brain injury. Accordingly, I find that substantially all of her
fatigue is also likely to endure.
[541] Given my
findings, it is not necessary to go on to determine whether a finding of
probable mild traumatic brain injury can also be made out on the basis that Ms. Gabor
experienced an alteration in her mental state at the time of the Accident, as
opined by Dr. Caillier.
DAMAGES
·
Basic Principles
[542] The essential
purpose of damages is to restore an injured plaintiff to the same position he
or she would have been in had the negligence not occurred, to the extent that
objective can be achieved by way of a monetary award.
[543] People
have different physical and psychological susceptibility to injuries. A core
principle in the assessment of damages is that the defendant must take the
plaintiff as she is. A plaintiff whose unique psychological makeup or
pre-existing physical condition makes her more vulnerable to sustaining injury
is to be compensated for the entire extent of her injury, both physical and/or
psychological, caused by the defendants negligence. This is so even where,
due to some unique feature of the plaintiff, the injury was greater or of a
more dramatic or severe or different type than one would expect an average
person to sustain. It is no answer for a defendant to say that the plaintiff
would have suffered less injury or a different kind of injury or no injury at
all if he or she had been less susceptible or vulnerable. It is the impact of
the defendants negligence on the actual plaintiff, and not on a fictional one,
that is relevant for compensatory purposes: Athey.
·
Pre-existing Condition and Measurable Risk of Loss
[544] An equally
fundamental tenet is that a defendant is not expected to put the plaintiff in a
better position than the plaintiff was in the moment before the accident happened.
It is the difference between the plaintiffs original position, with all the attendant
risks and shortcomings (e.g. a pre-existing condition) just before the accident,
and the injured position after and as a result of the accident, that comprises
the plaintiffs loss: Athey at paras. 34-35.
[545] A
pre-existing condition, whether latent or active, is part of the plaintiffs
original condition. However, a deduction in certain heads of damages will not
necessarily follow from the mere existence of a plaintiffs pre‑existing
symptoms. The evidence must establish the existence of a measurable risk that the
pre-existing condition would have resulted in a loss to the plaintiff in the
future without the defendants negligence. Only then is that risk of loss
taken into account in the assessment and will serve to reduce the award of certain
heads of damages: Athey at para. 35; Sangha v. Chen, 2013
BCCA 267; Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2012 BCCA 331;
Moore v. Kyba, 2012 BCCA 361, at para. 43. The contingency of a
pre-existing condition manifesting on its own to cause a loss at some point
does not have to be proven to a certainty; it is given weight according to its
relative likelihood: T.W.N.A. v. Canada (Ministry of Indian Affairs),
2003 BCCA 670.
[546] Earlier, I
discussed my findings that, contrary to the defendants contention, Ms. Gabor
did not suffer from any pre‑Accident condition or disorder of depression
or anxiety or other psychological disorder. In the result, there is no
measurable risk that, without the Accident, Ms. Gabor would have developed
an Adjustment Disorder or would have otherwise experienced depression, anxiety or
any of the emotional or psychological sequelae that surfaced in the aftermath
of the Accident. As Dr. Bogod put it, had the Accident not happened, Ms. Gabor
would not have developed the debilitating psychopathology that surfaced after
its occurrence.
[547] If the
Accident had not occurred, the physical symptoms sometimes experienced by Ms. Gabor
in her right scapula/shoulder region and thoracic spine prior to the Accident may
have continued to arise infrequently. However, they would not have impacted
her functioning on any level. Although those pre‑existing symptoms were
aggravated by the Accident, I find that the mild effects of such exacerbation settled
quickly. Also, and importantly, those symptoms were entirely different in
their nature, severity and frequency from the physical injuries that Ms. Gabor
experienced after the Accident that have led to her chronic pain condition.
[548] All things
considered, the evidence does not demonstrate a measurable risk that, without
the Accident, Ms. Gabor would have experienced the type and intensity of
soft tissue injuries, headaches or chronic pain that she experienced after the
Accident. Nor has it been established that the comparatively minor physical symptoms
that were mildly aggravated by the Accident‑induced injuries would have
caused any loss to Ms. Gabor, in the absence of the Accident.
[549] In the
circumstances, there is no principled basis to reduce Ms. Gabor’s damages to
reflect a measurable risk of loss. She is not a crumbling skull plaintiff.
·
Mr. Rauscher and the Impact on Damages
[550] This is a
convenient place to address an issue that preoccupied the defendants at trial,
namely the asserted connection between Ms. Gabor’s cognitive impairment
and the stress she felt in her relationship with Mr. Rauscher,
particularly as it began to unravel and finally dissolved. Dr. Riar identified
this event as one of the non‑Accident related stressors that contributed
to Ms. Gabor’s symptoms that were consistent with a mild traumatic brain
injury. In his report, he stated that when Mr. Rauscher left her in
December 2011, there was a loss of motivation and Ms. Gabor did not want
to be bothered.
[551] The
defendants seized on Dr. Riars observation and relied upon it in
formulating their theory that Ms. Gabors trip to Montreal in the summer
of 2012 and her subsequent break‑up with Mr. Rauscher was an
independent intervening event. During final submissions defence counsel
clarified that she was not using the term independent intervening event in
the sense of invoking the doctrine of novus actus interveniens that applies
to sever the chain of causation between a defendant’s fault and the plaintiffs
resultant injury. Rather, the defence argued that the stress stemming from the
toxic and unhealthy relationship compounded and aggravated Ms. Gabors impairing
symptoms and should be taken into account in assessing her damages because it is
unconnected to the Accident and would have happened in any event.
[552] Building
on that theory, the defendants assert that the relationship and its dissolution
significantly worsened Ms. Gabors depression and anxiety, dashed her self‑confidence
and self‑esteem, diminished her motivation to pursue a career in the art
world, and caused her additional stress and a loss artistically in the sense
that Mr. Rauscher had helped stimulate and nurture her creative endeavours.
Another hypothesized implication appears to be that the ill‑effects of
the relationship and its break-up contributed to Ms. Gabor feeling
overwhelmed and emotionally labile when presenting her exhibition at the
Gallery the next month.
[553] There is
no question that Ms. Gabor had begun to perceive Mr. Rauscher as controlling
and to find their cultural clashes, especially their conflicting perceptions of
women, to be upsetting. She was also upset by his unyielding disapproval of
her belly dancing. I accept that features of their relationship caused Ms. Gabor
stress, which heightened in the months preceding her decision to break it off
in December 2012. As is her inclination, Ms. Gabor discussed her concerns
with her mother, Ms. Olson and with Dr. Cheung several times.
[554] That said,
the evidence falls way short of establishing that Ms. Gabor fell apart or
was so distraught by the relationship or the break‑up that the attendant
stress was of such a magnitude that it aggravated her already frail
psychological self and/or tattered her confidence and motivation in any
appreciable way.
[555] Moreover,
the defendants theory does not align well with the evidence concerning the
timeline of the improvement of Ms. Gabors symptoms. It shows that starting
in about the fall of 2012 and continuing thereafter, Ms. Gabor began to
improve, not worsen. Her gradual progression was due to the passage of time, her
commitment to various treatment modalities, her diligent adherence to
performing her recommended exercises, dancing and her sessions with Dr. Cheung
and Ms. Olson.
[556] To the
extent it can be said that in her post-Accident state Ms. Gabor
experienced difficulty in withstanding Mr. Rauscher’s complaints about her
belly dancing or their divergent world perspectives, I find that was the case
because she was in an overall weakened state cognitively, physically and
psychologically from the Accident.
[557] The
defendants position that Ms. Gabor’s damages ought to be reduced on the
basis that her psychological symptoms and cognitive impairments were worsened,
and her career drive and ambition further compromised from the stress arising
from her relationship and the break‑up with Mr. Rauscher, is
untenable on the evidence.
·
Non-Pecuniary Damages and Loss of Housekeeping Capacity
[558] Ms. Gabor
seeks an award for non‑pecuniary damages in the amount of $220,000 and
separate damages of $25,000 for loss of housekeeping capacity. The defendants
counter that a non-pecuniary award of between $55,000 and $75,000 is ample in
the circumstances, and that a modest sum in the range of $2,000 to $3,000 will
fairly compensate her for any loss of housekeeping capacity.
[559] Non-pecuniary
damages are intended to compensate a plaintiff for the pain, suffering and loss
of enjoyment of life and of amenities experienced as a result of the
defendants negligence. They are meant to encompass such damages suffered to
the date of trial and those that the plaintiff will suffer into the future.
[560] The award
should be fair and reasonable for both parties, as those concepts are measured
against the adverse impact of the particular injuries on the particular
plaintiff: Hunt v. Ugre, 2012 BCSC 1704 at para. 176. While
fairness is assessed by reference to awards made in comparable cases, because
each case is decided on its own unique facts and calls for an individualized
assessment, it is neither possible nor desirable to develop a tariff: Lindal
v. Lindal, [1981] 2 S.C.R. 629 at 637; Dilello v. Montgomery, 2005
BCCA 56 at paras. 39-43. The process is one of assessment and is not
amenable to mathematical precision: Drodge v. Kozak, 2011 BCSC 1316.
[561] In Stapley
v. Hejslet, 2006 BCCA 34 [Stapley] at para. 46, Kirkpatrick J.A.
set out a non-exhaustive list of factors to be considered in awarding damages
under this head. They include: the plaintiffs age; the nature of the injury;
the severity and duration of the pain; disability; emotional suffering; loss or
impairment of life; impairment of family, marital and social relationships;
impairment of physical and mental abilities; loss of lifestyle; and the
plaintiffs stoicism.
[562] I do not
propose to reiterate my findings concerning the nature and progression of Ms. Gabors
Accident‑induced injuries. Suffice it to say, in overview, that she
sustained a mild traumatic brain injury with its attendant psychological,
behavioural and emotional symptoms, severe fatigue and cognitive deficits in
the areas of attention, information processing, memory and high demand
executive functioning. In addition, she has for years now endured a
constellation of soft tissue injuries of diminishing frequency and intensity
that have left her with chronic pain, together with psychological injuries that
include an Adjustment Disorder (now in partial remission). Her Adjustment
Disorder encompassed a cluster of adverse symptoms, including depression,
anxiety, an inability to cope with stress, being easily overwhelmed, anxiety
with driving and being a passenger, reduced self‑confidence and intrusive
images and nightmares of the Accident, some of which have persisted.
[563] Despite
improvements over time to Ms. Gabors soft tissue injuries and headaches,
she has residual problems with her neck and back and remains susceptible to periodic
flares of her symptoms for years to come, and potentially indefinitely. Those
episodes are frequently triggered from performing commonplace tasks or assuming
objectively innocuous postures such as prolonged sitting and doing sustained
work at a computer. Although Ms. Gabor’s pain no longer poses limitations
recreationally or vocationally, it is nonetheless chronic in nature.
[564] As I have
said in prior cases, enduring pain, even when it is intermittent and mostly low‑grade,
can exact a toll on everyday living and cloud the pleasures of life. Taking
care not to aggravate her symptoms and trying to manage her pain has become
part of Ms. Gabors everyday life.
[565] Ms. Gabor’s
psychological symptoms climbed to an extreme intensity by late 2011 when she
was diagnosed with the Adjustment Disorder. In about the fall of 2012, her
symptoms started to gradually abate and continued to improve thereafter. But they
have not resolved entirely.
[566] There
continues to be a sadness about Ms. Gabor that was not present before the Accident.
In her mother’s words "the wind has been knocked out of her sails". She
remains vulnerable to a relapse of her depression and anxiety symptoms when
faced with stress or failure, and is susceptible to developing a full‑blown
major depressive disorder once she comes to fully appreciate the extent and
implications of her likely permanent cognitive deficits. She is also at
increased risk of developing a post‑traumatic stress, anxiety or
depressive disorder in the event she were to be involved in another motor
vehicle accident. There is some evidence that further counselling may help ameliorate
Ms. Gabor’s psychological symptoms. As she has already been in
counselling for years, it remains to be seen whether she will gain from
additional sessions.
[567] Fortunately
for Ms. Gabor, she experienced improvement of her cognitive deficits and
the extreme fatigue associated with it in the two‑year window after the Accident.
However, her residual cognitive symptoms and the companion fatigue continue to
be significant and are her most impairing symptoms from a vocational
standpoint. The medical evidence I accept strongly indicates that they are probably
permanent because the period within which she was expected to achieve her
maximum cognitive recovery has long passed.
[568] I accept Dr. Cailliers
opinion, which finds support in the other medical evidence, that some of the
symptoms associated with Ms. Gabor’s Adjustment Disorder, including
depression, anxiety, irritability, feeling easily overwhelmed and difficulty
with multitasking are also connected to her brain injury. Accordingly, not all
of Ms. Gabor’s emotional and psychological symptoms are capable of being neatly
attributed to her Adjustment Disorder on the one hand or to her brain injury on
the other. Given the overlap, the likelihood follows that, even if Ms. Gabor
experiences a full remission of her Adjustment Disorder, she will never be completely
free of adverse psychological and emotional symptoms; those that comprise the sequelae
of her mild traumatic brain injury will likely endure.
[569] It is
highly probable that the sequelae of Ms. Gabors brain injury will continue
to have a profoundly negative impact on many vital aspects of her life long
into the future.
[570] The
defendants contend that after she obtained her MAA, Ms. Gabor had a change
of heart about her career plans and, unrelated to the Accident, she willingly abandoned
them, or at least put them on hold, in preference to building up her belly
dancing business. That submission cannot be sustained on any reasonable
interpretation of the evidence. Frankly, it is preposterous.
[571] The preponderance
of the evidence also handily dispels the defendants contention that Ms. Gabor’s
diminished level of drive and ambition are the product of choices that she has
consciously made or from events that are unconnected to the Accident. It is
the adverse after‑effects caused by the Accident that are to blame for
those unwelcome changes.
[572] The
defendants assert that Ms. Gabor exaggerated the extent of her cognitive
impairments and that they are not as functionally restricting as she has
portrayed them to be. To buttress their assertion, they submit that she did
not appear to be confused or tired while testifying in Court and that a few
times she drew the attention of defence counsel to inaccuracies in the
documents placed before her, which counsel construed as revealing a high degree
of cognitive function. The evidence satisfies me that Ms. Gabor found attending
in the Court exhausting, and that after each day she testified, she went
straight home to bed. Moreover, and in any event, her cognitive deficits were
reliably measured by Dr. Bogod, and to the extent they were ever put in
issue, the validity of them was not successfully challenged by the defence
experts.
[573] In the
wake of the Accident, this young woman no longer brims with creative ideas and
enthusiasm for art. Her once buoyant personality, which distinguished her as the
happiest person in the room, has been overcome by a lingering sadness. Immediately
following the Accident and continuing until approximately the fall of 2013, Ms. Gabor,
a formerly outgoing woman, was very reclusive and isolated. She avoided the
art events that she had previously revelled in and withdrew from other social
situations. I accept Ms. Gabor’s testimony that it has only been in the last
year or so that she has become somewhat more social. Even then, she generally
limits herself to one‑on‑one interactions and still avoids larger
and noisier social settings, including the vibrant local art scene.
[574] Once
intellectually inquisitive, high-functioning, driven and successful, Ms. Gabor
has trouble getting motivated, staying on task and following through with
plans. She finds multitasking difficult and struggles with things that require
her concentrated attention such as reading, working on her computer and
producing art. Tasks that were once simple and required little conscious
effort, now feel like daunting endeavors that can readily overwhelm her unless
they are broken down into micro‑steps and implemented with the assistance
of others. Even then, they may be left unfinished.
[575] The ill‑effects
of the Accident have been life‑altering for Ms. Gabor and it is most
unlikely that she will ever fully recover to her former self. Her injuries have
likely crushed her ability to successfully pursue a career in academia and have
broken the artistic spirit that played a part in how she defined herself. Her
ability to produce art to the high standard that she achieved previously is in
doubt. In the aftermath, Ms. Gabor is left to confront the grim reality
that she has chronic pain and a probable permanent brain injury that manifests
as an array of cognitive impairments with companion fatigue and psychological
sequelae.
[576] In sum,
the whirlpool of symptoms caused by the Accident has substantially and
detrimentally affected the quality and enjoyment of Ms. Gabor’s life and
the lives of those she loves.
[577] I have
reviewed the authorities placed before me by counsel. As they provide general
guidelines only I do not propose to address them in any detail, except to say that
none of the cases relied upon by the defendants involve a plaintiff with a mild
traumatic brain injury. The cases submitted by Ms. Gabor are far more informative
as their facts more closely approximate my findings in this case.
[578] Having regard
to the Stapley factors and the other case authorities in the context of
the evidence in the case at hand, in my opinion a fair and reasonable award for
Ms. Gabors non-pecuniary damages is $200,000.
[579] An award
for the loss of housekeeping capacity is meant to compensate Ms. Gabor for
her diminished loss of capacity the loss of her asset and is not a precise
mathematical calculation. Because the award reflects the loss of personal
capacity, which is an asset, the issue of whether she had used replacement
services or is likely to hire such assistance in the future does not inform the
analysis. That distinguishes this head of damages from future cost of care
awards: OConnell v. Yung, 2012 BCCA 57 at para. 67; Kroeker v.
Jansen (1995), 4 B.C.L.R. (3d) 178 (C.A.); McTavish v. MacGillivray,
2000 BCCA 164.
[580]
Mr. Suen testified that sometimes Ms. Gabor says that
her apartment is too untidy for him to pay a visit, or apologizes for the mess
when he does pop over. I accept that her daily struggle with fatigue and
poor organizational skills and follow-through have mildly impacted her capacity
to accomplish household tasks and will continue to do so.
[581]
In the circumstances, I conclude that the evidence does not
justify a stand‑alone award of damages for loss of housekeeping capacity.
Instead, I have considered it as a factor in my assessment of Ms. Gabors
non‑pecuniary damages.
·
Loss of Income-Earning Capacity
[582] The legal framework that informs an award for loss of
earning capacity was helpfully summarized by Dardi J. in Midgley at
paras. 236-240:
[236] The recent jurisprudence
of the Court of Appeal has affirmed that the plaintiff must demonstrate both an
impairment to his or her earning capacity and that there is a real and
substantial possibility that the diminishment in earning capacity will result
in a pecuniary loss. If the plaintiff discharges that requirement, he or she
may prove the quantification of that loss of earning capacity either on an
earnings approach or a capital asset approach: Perren v. Lalari, 2010
BCCA 140 at para. 32. Regardless of the approach, the court must endeavour
to quantify the financial harm accruing to the plaintiff over the course of his
or her working career: Pett v. Pett, 2009 BCCA 232 at para. 19; X.
v. Y at para. 183.
[237] As enumerated by the
court in Falati v. Smith, 2010 BCSC 465 at para. 41, affd 2011
BCCA 45, the principles which inform the assessment of loss of earning capacity
include the following:
(i) The standard of proof in
relation to hypothetical or future events is simple probability, not the
balance of probabilities: Reilly v. Lynn, 2003 BCCA 49 at para. 101.
Hypothetical events are to be given weight according to their relative
likelihood: Athey at para. 27.
(ii) The court must make
allowances for the possibility that the assumptions upon which an award is
based may prove to be wrong: Milina v. Bartsch (1985), 49 B.C.L.R. (2d)
33 at 79 (S.C.), affd (1987), 49 B.C.L.R. (2d) 99 (C.A.). Evidence which
supports a contingency must show a realistic as opposed to a speculative
possibility: Graham v. Rourke (1990), 75 O.R. (2d) 622 at 636 (C.A.).
(iii) The court must assess
damages for loss of earning capacity, rather than calculating those damages
with mathematical precision: Mulholland (Guardian ad litem of) v. Riley
Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43. The assessment is
based on the evidence, taking into account all positive and negative
contingencies. The overall fairness and reasonableness of the award must be
considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11.
[238] Although a claim for
past loss of income is often characterized as a separate head of damages, it
is properly characterized as a component of loss of earning capacity: Falati
at para. 39. It is compensation for the impairment to the plaintiffs past
earning capacity that was occasioned by his or her injuries: Rowe v. Bobell
Express Ltd., 2005 BCCA 141 at para. 30; Bradley v. Bath,
2010 BCCA 10 at paras. 31-32; X. v. Y at para. 185.
[239] While the burden of
proof relating to actual past events is a balance of probabilities, a past
hypothetical event will be considered as long as it was a real and substantial
possibility and not mere speculation: Athey at para. 27.
[240] This court in Falati
at para. 40 summarized the pertinent legal principles governing the assessment
of post-accident, pre-trial loss of earning capacity and concluded that:
[40] … the determination of a plaintiffs prospective
post-accident, pre-trial losses can involve considering many of the same
contingencies as govern the assessment of a loss of future earning capacity. As
stated by Rowles J.A. in Smith v. Knudsen, 2004 BCCA 613, at para. 29,
What would have happened in the past but for the injury is
no more knowable than what will happen in the future and therefore it is
appropriate to assess the likelihood of hypothetical and future events rather
than applying the balance of probabilities test that is applied with respect to
past actual events.
[583] In advancing a claim for the loss of income‑earning
capacity, the plaintiff must prove a real and substantial possibility of such loss,
as opposed to a theoretical one. In other words, the award cannot be based on
speculation: Rosvold v. Dunlop, 2001 BCCA 1 [Rosvold]; Perren
v. Lalari, 2010 BCCA 140. Where a real and substantial possibility of
loss has been established, compensation is awarded based on an estimation of
the chance that the event leading to such loss will occur: Steward v.
Berezan, 2007 BCCA 150.
[584] Quantification of loss is an assessment meant to
reflect the applicable non-speculative positive and negative contingencies. It
is not a mathematical calculation and there is no particular formula or
methodology to be followed: Rosvold at para. 11; Jurczak v.
Mauro, 2013 BCCA 507 at para. 36. As was recently observed by the
Court of Appeal in Kim v. Morier, 2014 BCCA 63 at para. 7, the
onus on the plaintiff is not a heavy one but must nonetheless be met in order
to justify a pecuniary award.
[585] Evidence
of ongoing pain may be sufficient to ground a substantial possibility that a
plaintiffs pain will adversely affect her future ability to work, even where,
at the time of trial, the plaintiff has not missed work due to the injury: Clark
v. Kouba, 2014 BCCA 50 at para. 33.
[586] Throughout
my Reasons I have made factual findings that are relevant to Ms. Gabors asserted
loss of income-earning capacity. They are to be considered in conjunction with
the findings I now make.
[587] What Ms. Gabors
life held in store had the Accident not happened can never be known. What is
known is her firm intention formed before the Accident and subsisting at the
time of it, to have a career in academia, and that she succeeded in obtaining
the requisite educational qualifications to achieve that goal. Also known is
that she was not an average art student. Ms. Gabor was a graduate scholarship
student who attended one of the finest art universities in Canada and was considered
by her thesis supervisors (and others in academia) to rank among the very top
of her cohort. Nor was she an average young artist. Her impressive exhibition
record, which included solo shows, speaks to her talent and promise as an
artist in the pre‑Accident scenario. In sum, Ms. Gabor stood above
the crowd.
[588] At the
time of the Accident, Ms. Gabor was qualified to teach sessional studio
art courses and to pursue tenure track at the college and university levels. She
was also qualified for a number of the alternative art‑related careers
identified by Drs. Wallace, Lantin and Lowry, and had prior work
experience as a fine arts technician.
[589] The
evidence supports the following real and substantial possibilities had the
Accident not happened:
● Ms. Gabor
would have diligently pursued her teaching career goal, and, by not later than approximately
September 2012, would have succeeded in obtaining more than one sessional
teaching position;
● The number of her
sessional placements would have gradually, but significantly, increased over
the next three to five years or so and, within that timeline, would have come close
to approximating full‑time hours;
● She would have
supplemented her earnings from teaching with income from any number of part-time
or fixed‑term art‑related jobs and/or grant-funded art projects, with
the overall objective of earning equivalent to full‑time remuneration
each year;
● For a time, she
would have also continued to belly dance because it paid so well and she
enjoyed it. Dance would therefore also have supplemented her income;
● Ms. Gabor
would have arrived on full‑time tenure track after several years of teaching
sessional classes and eventually would have attained tenure; and
● She would have continued
to create art, whether she was working full-time or part-time.
[590] An
important positive contingency is that because Ms. Gabor was a young and
driven woman without obligations before the Accident, there was a strong
likelihood that she would have held multiple part‑time jobs at one time resulting
in her working more than typical full‑time hours and enjoying above
average earnings. Another contingency is that she would have earned
fluctuating remuneration from the sales of her art and fees for artist talks
and presentations. As her stature as an artist grew, her remuneration would
likely have grown slightly as well. On the evidence as it stands, the
likelihood is that Ms. Gabor would have generated relatively modest sums
from the sale of her photographs and other artworks. That she may have earned
significant sums from those sources is too speculative to consider.
[591] An
important negative contingency is that, because sessional teaching is so highly
competitive, it may have taken Ms. Gabor considerably longer to gain a
foothold and develop a stable of courses that approached full‑time hours.
The availability of sessional positions would likely have fluctuated year to
year, although after a few years of teaching a particular class, it is likely
that she would have been given priority to teach it again. As well, there was
credible evidence that it is extremely demanding to teach the number of
sessional courses required to approximate the salary of a full-time teaching
position. Additionally, the achievement of tenure track may have been more
difficult and taken longer than anticipated. Ms. Gabor may have been
required to move to another city to achieve that goal at a time in her life
when she was no longer prepared to do so.
[592] Weighing
the non‑speculative contingencies, I am satisfied that, with one
exception, there was high chance that the real and substantial possibilities referred
to above in paragraph 589 would have materialized. I would assess the chances
of Ms. Gabor becoming a professor with tenure as less likely.
[593] What then are
the real and substantial possibilities in the post‑Accident reality and
the chances of them materializing?
[594] The
defendants say that the post‑Accident Ms. Gabor is more than capable
of performing work in a wide array of capacities. They assert that when
measured against Dr. Wallace’s hallmark foundational skills, her functionality
and occupational capacity indicates that she currently possesses all of the
skills necessary to obtain meaningful paid employment.
[595] In support
of their submissions, the defendants portray Ms. Gabor’s involvement in
her belly dancing business in an inflated way. They make it sound as though
she was a fully‑engaged entrepreneur operating a substantial undertaking.
While it is the case that she has managed to run and promote her dance
business, it is nothing more than a modest proprietorship that involves her dancing,
on average, a few times a week, teaching dance approximately twice a week; occasionally
updating her web page and carrying out other relatively straightforward
marketing techniques. Her gross income from belly dancing in 2012 was
approximately $12,000. In 2013, when her injuries had improved further, it was
about $13,715 (rounded). The tasks associated with operating Ms. Gabors belly
dancing business do not constitute a suitable metric from which to measure her
cognitive ability and function for conventional competitive employment.
[596] The
defendants also pointed to the work Ms. Gabor performed for Mr. Rauschers
company in Montreal and to her solo exhibition at the Gallery in 2013 as additional
evidence of her employment skills and capacity to engage in competitive
employment. My findings pertaining to Ms. Gabor’s involvement in those projects
entirely negates the defendants contention. She performed very poorly as an
employee in Montreal even though the assigned tasks would have been well within
her competence before the Accident, and she had an accommodating and
sympathetic employer. As for the Gallery show, Ms. Gabor was overwhelmed,
tearful, disorganized, unprepared and basically unable to pull it together
without leaning heavily on her devoted and capable parents. This, despite the
fact that she had about a year to prepare and the core elements were simply a
repetition of what she had done successfully some twenty months earlier for her
thesis in circumstances where she had less free time and faced the pressures
and demands of school. I recognize that both of these endeavours took place
before the two-year timeline in which Ms. Gabor would reach her maximum
recovery from her brain injury, had passed.
[597] Ms. Kavanagh
and Dr. Lowry each assessed Ms. Gabor’s resume from the standpoint of
2014. Ms. Kavanagh wondered what Ms. Gabor had been doing artistically
in the period between her graduation and early 2013. She would have been sceptical
of the apparent gap in her post-MAA work history and her meager production of
art thereafter. Dr. Lowry also commented on this gap where the only
notable achievement was Ms. Gabors involvement in belly dancing and the
exhibition at the Gallery.
[598] The
evidence of Ms. Gabor’s medical experts and Dr. Wallace is preferred to
the opinions of their defence counterparts. It establishes that Ms. Gabor
has significant vocational barriers, primarily in the form of her likely
permanent cognitive impairments coupled with her cognitive fatigue.
[599] The expert
evidence that I accept, and which is harmonious with the evidence of Ms. Gabor
and her credible collateral witnesses, points to a high likelihood that her
fatigue and diminished cognitive efficiency will have a significantly negative
impact on her ability to obtain and maintain competitive employment in
vocational options congruent with her educational development.
[600] Even
allowing for the unlikely possibility that Ms. Gabor’s cognitive
impairments and fatigue would not stand in the way of her being able to secure a
sessional teaching post, there is very little chance in fact, it is negligible
that she is capable of living up to the cognitive demands of post‑secondary
teaching. Nor is there a likelihood she would be able to summon the energy
required to maintain the requisite pace in academia or perform her duties in
the manner expected in such a competitive employment environment. This is the
case even were she to work part‑time. Furthermore, the demands of
academia would also probably showcase Ms. Gabors other failings caused by
the Accident, such as becoming overwhelmed easily, reacting poorly to stress
and having difficulty implementing and completing plans of action.
[601] There is a
substantial possibility that Ms. Gabor has the residual capacity to work
on a part-time basis. I accept Dr. Bogods opinion that Ms. Gabor is
likely not able to perform a job that is cognitively demanding. I find that in
light of the probable permanence of her cognitive impairments and associated
fatigue, that grave prediction will not change. Clearly, being an instructor
in a post‑secondary institution is cognitively demanding even if performed
on a part‑time basis. The cognitive demands placed upon Ms. Gabor
with respect of her belly-dancing business and performances are not remotely
comparable.
[602] It is
substantially possible that Ms. Gabors mild traumatic brain injury and
its sequelae will likewise continue to seriously impede her ability to produce
and exhibit her art. With a negative domino‑type effect that would further
diminish the residual competitiveness, if any, she may realistically have for
any teaching positions.
[603] In light
of the probable permanence of Ms. Gabors cognitive deficiencies and companion
fatigue, I conclude she has very likely permanently lost her intended career in
academia. There is virtually no chance of a substantial possibility of that
being a viable path for her, either full-time or part-time.
[604] The
evidence also indicates that Ms. Gabors significant impairments from the Accident
preclude her from pursuing further education for the purposes of retraining.
There is no reasonable possibility of her being able to do so.
[605] Given the
very strong likelihood that Ms. Gabor will be confined to part‑time
employment that is not cognitively demanding, there is no realistic possibility
of her securing and maintaining full‑time employment in any of the other
art‑related career opportunities identified by Drs. Lantin and Lowry, or
the alternative career options considered by Dr. Wallace, such as working
in a private or public gallery as an archivist or curator or a fine arts technician.
[606] Based on Dr. Wallace’s
opinion, which I accept, and the evidence as a whole, the chance of a realistic
possibility of Ms. Gabor being able to find and maintain part‑time employment
in a non-academia, arts‑related position unrelated to her MAA ranges from
low to fair. For example, there is a realistic possibility that she may be able
to work as a fine arts technician or rely on her Fashion and Merchandising Diploma
to work in fashion design. However, in order to maintain competitive
employment in those areas, the likelihood is that she would only be able to
work part time at best, and most likely something that is less than 50% of full‑time
hours. Another key qualifier is that Ms. Gabor would require a
sympathetic and accommodating employer who is prepared to tolerate the
workplace modifications she requires for an ergonomic work station and to
enable her to take breaks to address her fatigue and her physical symptoms. In
all the circumstances, the chance of the possibility of Ms. Gabor having the
capacity to work part time as a fine arts technician is extremely low because,
among other things, it may be too cognitively taxing on her. For much the same
reasons, the likelihood of her possibly working part time in fashion is only slightly
better I would assess the chance as fair.
[607] The
evidence also supports a substantial possibility that Ms. Gabor may be able
to rely on her diploma to obtain a job in the fashion retail outlet business. Employment
in that area on a full‑time basis is most unlikely given her fatigue,
diminished cognitive abilities and the sequelae of her physical injuries. Leaving
to the side the issue identified by Dr. Wallace that taking such a job may
represent a demotion in Ms. Gabors mind and have negative psychological consequences,
I find that the chance of that possibility happening on a part-time basis is
fair to moderate.
[608] Due to Ms. Gabor’s
reduced confidence as an artist, her continuing difficulties in generating
ideas and executing plans, the problem she has sitting at a computer for
prolonged periods with sustained concentration, her significantly declined
artistic output since the Accident and her fatigue, working full‑time
hours as a professional artist is not likely a reasonable possibility. That
said, given Ms. Gabor’s long‑standing passion for art, I find there
is a fair chance of a reasonable possibility that she will produce art on a
scaled‑back basis and occasionally earn a small and fluctuating amount of
income from it.
[609] A viable
possibility for Ms. Gabor may be to try to expand her belly dancing
business. As noted by Dr. Wallace, the flexibility permitted by self‑employment
would be more suitable to her activity tolerances and her productivity pattern,
as well as her cognitive impediments and accompanying fatigue. The breadth of
any expansion would be dictated by Ms. Gabor’s fatigue levels and physical
tolerance for increased performances and lessons. Additionally, a career in
belly dancing that has her doing the performances would seem to present
limitations down the road as Ms. Gabor ages.
[610] The
evidence indicates that all of the limited employment options that carry the
best chance of a realistic possibility of coming about for Ms. Gabor do
not involve her availing herself of any of the vocational benefits connected to
having achieved an MAA.
[611] There can
be no question that Ms. Gabor’s income‑earning capacity has been
seriously impaired due to her injuries sustained in the Accident. I am
satisfied that there is a real and substantial possibility that her
diminishment will result in a pecuniary loss. Accordingly, Ms. Gabor has met
the required threshold to move to the next step and prove the quantification of
her loss.
[612] Ms. Gabor
submits that it is not appropriate
to engage in the earnings approach to assess her loss and that it is preferable
in her case to quantify her loss by taking into account the factors that inform
the capital asset approach laid out in Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353 (S.C.) [Brown]. Although she does not favour the
application of the earnings approach, the evidence of the economic experts, who
have supplied calculations of loss from the standpoint of her potential range
of earnings based on statistical averages, inform the assessment.
(a) Past Loss
[613] Referring to
the earnings of the Arts Master’s 2006, Female Instructors and Female All Master’s
2011 groups, Ms. Gabor asserts that women similarly situated to her would
have earned about $40,000 to $50,000 annually in the first three years after obtaining
a masters degree. She says it is abundantly clear that, absent the Accident,
she would have been out in the world relying on her MAA for employment and
earning a much more significant living than she actually earned. Ms. Gabors
position is that it is unnecessary to decide the precise course of her
vocational future in the period between the Accident and the first day of trial
(almost three years exactly). She contends that, to the extent there is
reliance on the projections of the economic experts, there should be no contingency
for labour force participation attached to the past in assessing the quantum of
her pre‑trial loss. Her reasoning is that being unemployed during that
period was not a realistic possibility because she was self‑employed with
an income stream and was actively seeking employment in the field for which she
was qualified. There is some merit to her submission.
[614] Ms. Gabors
position is that a conservative estimation would project her annual earnings at
$45,000 in the pre-trial period. After deducting the $35,000 that she did
earn, Ms. Gabor claims the sum of $100,000 as her gross loss of past
income-earning capacity ($45,000 x 3 = $135,000 – $35,000 = $100,000).
[615] The
defendants propose that fair compensation for Ms. Gabors past income‑earning
loss is in the range of $21,700 to $24,270. They begin their calculation with Mr. Hildebrand’s
estimation of her past net loss based on the average earnings of the Arts Master’s
2006 group. To that net loss figure of $67,881, the defendants add five
percent to reflect a more accurate participation rate and ten percent for non‑wage
benefits, both of which Mr. Hildebrand endorsed. From the adjusted amount
of $78,403, the defendants deducted the actual income Ms. Gabor earned in the
period of $35,000. On the reasoning that she was only disabled from working
for approximately six to 12 months after the Accident, the defendants then
divided the remaining balance of $43,403 in half to arrive at their proposed
range of her pre‑trial loss.
[616] The defendants
calculation is constructed on the faulty premise that Ms. Gabor was
physically, psychologically and cognitively able to work more than she did beginning
in late December 2011 or early July 2012 onward. That premise is not sustainable
on any reasonable weighing of the evidence that I accept.
[617] When the Accident
happened, Ms. Gabor was a freshly‑minted MAA graduate whose search
for employment positions congruent with her high level of educational
achievement, including sessional teaching work, was in its infancy. She had no
demonstrated work history of teaching at the post‑secondary level. For
those reasons, exclusive consideration of the average earnings of the Female Instructors
category strikes me as inappropriate in assessing to Ms. Gabor’s past
loss. In my view, the average earnings of the Arts Master’s 2006 group is the preferred
starting point. Based on that data, Mr. Hildebrand estimated her past
loss as $75,561 (gross). As mentioned, he conceded that it was appropriate to
increase that amount by five percent to capture a more accurate participation
rate and by an additional ten percent to reflect non-wage benefits. Those
calculations suggest a past loss of $87,273, before deduction of Ms. Gabors
actual pre-trial earnings and the adjustments required to determine her net
loss.
[618] Assessing,
in the context of the whole of the evidence, the non-speculative contingencies
and the relative chances of the real and substantial possibilities of what
would have happened in the past, but for the Accident, and aiming for overall
fairness, I quantify Ms. Gabors loss to trial at $85,000. Deducting her
actual earnings of $35,000 from that sum yields a past loss of $50,000
(gross). I direct counsel to make the necessary calculations to determine Ms. Gabors
net loss, with liberty to apply if they are unable to reach agreement.
(b) Future Loss
[619] In a
nutshell, my task is to compare the likely future of Ms. Gabors working
life if the Accident had not happened, to her likely future working life
afterwards: Gregory v. Insurance Corporation of British Columbia, 2011
BCCA 144 [Gregory] at para. 32.
[620] Ms. Gabor
proposes that the fairest way to quantify her future loss of income‑earning
capacity would be to:
consider the average earnings
of the Female Instructors group;
average the contingencies
between the male and female data; and
add 15% to reflect non-wage benefits.
The application of her formula results in the sum of $1,787,
266.
[621] Ms. Gabor
predicts that in her with‑Accident reality, she will continue to belly
dance for a time and will engage in other work on a fluctuating and part‑time
basis; sometimes earning more, and at other times a bit less. Belly dancing
has not provided her with any employment benefits, and she does not expect her
future path to provide her with any significant benefits either. Estimating a
50% increase in her current earnings over her lifetime, Ms. Gabor has
quantified her residual future earnings capacity at $550,000. Deducting that
sum from the $1,787,266 figure leaves the sum of $1,237,266. Ms. Gabor submits
that, having regard to the foregoing in the context of the application of the Brown
factors, the sum of $1,200,000 represents a fair quantification of damages
for her future loss of income‑earning capacity.
[622] The
defendants overarching submission is that Ms. Gabor has failed to prove a
substantial possibility of a future event leading to an actual pecuniary loss. Their
position, in the alternative, is that the upper end of her loss is fairly quantified
at $50,000. Put broadly, their reasoning is that within six or, at most, 12
months after the Accident, Ms. Gabor was able to work in her injured state
in a full‑time capacity in various capacities including as a fashion designer,
merchandiser, fine arts technician, art gallery curator, archivist or
equivalent. The defendants emphasize that the difference between Mr. Pivnenkos
determination of the present value of the lifetime future earnings of a female
working as a curator or merchandiser, which are approximately $919,936 after
factoring in non‑wage benefits, compared to the present value of the
lifetime future earnings of the Arts Master’s 2006 category, is relatively
small. They assert that the sum of $50,000 fairly compensates Ms. Gabor
for any discrepancy.
[623] In light
of my findings concerning Ms. Gabors limited employment possibilities and
the likelihood of them materializing in the future, the factual foundation
underlying the defendants quantification is unsound. An assessment of loss
based on the defendants rationale would significantly undercompensate Ms. Gabor.
[624] In my
opinion, the most reasonable approach to employ to assess Ms. Gabors
future loss of capacity is to start with the average earnings of the Arts
Masters 2006 category with a five percent upward adjustment. This is
preferable to using the Female All Masters 2011 group as a benchmark and then
modifying the average earnings downward.
[625] I share
the defendants view that an across‑the‑board application of the
average earnings of the Female Instructors group, which includes female
instructors with master’s degrees across a wide range of disciplines, could
result in an overstatement of Ms. Gabor’s loss. That being said, fair
consideration must be given to the evidence that shows a very high likelihood of
a real and substantial possibility that Ms. Gabor would have secured
employment as a sessional instructor, increased the number of her sessional
positions over time and a strong substantial possibility that she would have
eventually attained tenure. The presence of those forceful positive
contingencies militates against exclusive reliance on the average earnings of the
Arts Masters 2006 category, where only some of the members are college
instructors. Considering only the earnings data of the Arts Master’s 2006 group
poses too great a risk of understating Ms. Gabors future loss.
[626] While I am
disposed to agree that reference to the average earnings of a specific vocation
may have limited utility where a plaintiff has not established that vocation as
her career path, that by no means constitutes a rule of assessment to be
adhered to in all circumstances: Bancroft‑Wilson v. Murphy, 2008
BCSC 1035 at para. 63, affd 2009 BCCA 195. In light of Ms. Gabor’s
principal career goal to teach and given she had acquired the qualifications to
realize that objective, it is reasonable to take into account the earnings of
the Female Instructors as informing, in part, her future loss. Care must be
taken in doing so because, as I have noted, included within that grouping are
higher‑earning instructors in other fields. The defendants also urge
caution on the footing that Mr. Pivnenkos estimation of the earnings
stream of the Female Instructors category includes numerous years where the
wages are above the top end of the earnings scales that apply to instructors at
Emily Carr and Kwantlen. There is some merit to that submission insofar as it
concerns the earnings of sessional instructors, while also bearing in mind that
the pay grade at Emily Carr is the lowest in the country.
[627] In my
opinion, a blending of the respective earnings streams of the Arts Masters
2006 and Female Instructors categories is an appropriate approach in Ms. Gabors
case. Accordingly, I would add to the average earnings of the Arts Masters
2006 group a sum representing between 45% and 55% of the difference between the
present value of the lifetime earnings of that group and the Female Instructors
group.
[628] As an
extension of my logic, I conclude that non‑wage benefits at the mid‑point
between the Female Instructors and Arts Masters 2006 categories is reasonable.
Accordingly, a 12.5% bump-up rather than the ten percent applied by Mr. Hildebrand,
should apply.
[629] I find
that the absence of Ms. Gabor’s demonstrated post‑graduate work
history militates against tinkering with the participation rates so as to take
into account the higher rates attributable to the male counterparts. Had there
been evidence showing that Ms. Gabor’s levels of participation in the
labour force were repeatedly better than the statistical average of the female
groups, a modification may well have been appropriate.
[630] Both
economic experts suggested formulae to calculate Ms. Gabors with‑Accident
earnings by applying an impairment factor to her without‑Accident
expected earnings. I find the suggested impairment model to be analytically flawed
as it concerns Ms. Gabor. Referring to the estimated earnings pertaining
to women with a masters degree and then merely scaling it back to, say, 40% to
reflect her degree of impairment, does not reflect Ms. Gabors likely future
vocational reality. She will probably not teach art part‑time at a post‑secondary
institution or work part‑time as a curator or archivist.
[631] In all the
circumstances, I am satisfied of a high likelihood of a real and substantial
possibility that the present value of Ms. Gabor’s lifetime future earnings
in her with‑Accident state will be in the approximate amount of $550,000 as
suggested by her counsel.
[632] I agree
with Ms. Gabors contention that it is preferable to quantify her loss by
taking into account the factors that inform the capital asset approach laid out
in Brown. That assessment involves considering factors such as whether Ms. Gabor
(i) has been rendered less capable overall of earning income from all
types of employment; (ii) is less marketable or attractive as a potential
employee; (iii) has lost the ability to take advantage of all of the job
opportunities that might otherwise have been open to her; and (iv) is less
valuable to herself as a person capable of earning income in a competitive
labour market. The evidence amply establishes that all four factors apply to Ms. Gabor.
[633] Bearing
in mind the applicable legal principles, including the Brown criteria,
in light of the evidence, I conclude that the sum of $750,000 is
the present value of a fair and reasonable measure of Ms. Gabors loss of
future income-earning capacity.
·
Cost of Future Care
[634] The
approach to be taken in assessing future care costs was settled by the Supreme
Court of Canada in Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9,
at paras. 21-22:
[21] Damages for cost of
future care are a matter of prediction. No one knows the future. Yet the rule
that damages must be assessed once and for all at the time of trial (subject to
modification on appeal) requires courts to peer into the future and fix the
damages for future care as best they can. In doing so, courts rely on the evidence
as to what care is likely to be in the injured persons best interest. Then
they calculate the present cost of providing that care and may make an
adjustment for the contingency that the future may differ from what the
evidence at trial indicates.
[22] The resulting award may
be said to reflect the reasonable or normal expectations of what the injured
person will require. Jane Stapleton, The Normal Expectancies Measure in Tort
Damages (1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58, that the tort
measure of compensatory damages may be described as the normal expectancies
measure, a term which more clearly describes the aim of awards of
compensatory damages in tort: namely, to re-position the plaintiff to the
destination he would normally have reached … had it not been for the tort.
The measure is objective, based on the evidence. This method produces a result
fair to both the claimant and the defendant. The claimant receives damages for
future losses, as best they can be ascertained. The defendant is required to
compensate for those losses. To award less than what may reasonably be
expected to be required is to give the plaintiff too little and unfairly
advantage the defendant. To award more is to give the plaintiff a windfall and
require the defendant to pay more than is fair.
[635] Damages
for the cost of future care are meant to compensate for the financial loss
reasonably incurred by an injured plaintiff to sustain or promote her mental
and/or physical health: Gignac v. Insurance Corporation of British Columbia,
2012 BCCA 351 at para. 30 [Gignac]. The claimed services and
items must be medically justified and reasonable in the sense that the
plaintiff will be likely to incur them based on the evidence: Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), affd (1987), 49 B.C.L.R. (2d)
99 (C.A.) [Milina]; Kuskis v. Tin, 2008 BCSC 862. Being
medically justified is not synonymous with the more stringent requirement of
being medically necessary: Langille v Nguyen, 2013 BCSC 1460, affd 2014
BCCA 430.
[636] Recommendations
made by health care professionals are relevant in determining whether an item
or service is medically justified: Gregory at para. 38. However,
to successfully advance a future cost of care claim it is not necessary that a
physician testify to the medical justification of each and every item of care that
is claimed. What is required is some evidentiary link between the physicians
assessment of pain, disability, and recommended treatment and the care
recommended by a qualified health care professional: Gregory at 39; Gignac
at paras. 31-32; Aberdeen v. Zanatta, 2008 BCCA 420 at paras. 43‑53,
63. General contingencies and those specific to the plaintiff are to be taken
into account where and as appropriate: Gignac at para. 52.
[637] An
occupational therapist is qualified to provide evidence to establish the future
care needs of a plaintiff: Jacobsen v. Nike Canada Ltd. (1996), 19
B.C.L.R. (3d) 63 (S.C.), quoted with approval in Gregory at para. 38.
[638] Relying on
her own assessment in conjunction with her review of the medical reports, Ms. Jewett
concluded that a number of care items and services were medically justified and
reasonable to preserve and promote Ms. Gabors functional rehabilitation,
pain management and psychological improvement.
[639] As
discussed below, Ms. Gabor seeks damages for the future cost of items that
come within the broad categories of assistive devices, medication, medical
equipment and medical, professional and/or support services.
[640] The
defendants oppose the vast majority of the items sought. Their omnibus
criticism of Ms. Jewett’s report is that she was overly reliant on Ms. Gabor’s
self‑reports of symptoms and restrictions and did not perform her own
testing in those areas or independently confirm Ms. Gabor’s pain or her
cognitive impairments. In light of Dr. Bogods comprehensive testing of Ms. Gabor’s
cognitive status, there was no need for Ms. Jewett to perform her own
tests. While there may be a slim basis to the complaint that Ms. Jewett
did not perform sufficient independent testing of Ms. Gabor’s physical function,
at least to compare it to her self‑reports, that criticism does not ultimately
advance the defendants case. That is because the majority of Ms. Jewett’s
recommendations find medical justification in the other expert evidence.
(a) Assistive Devices
[641] I accept Ms. Jewett’s
evidence that Ms. Gabor’s work area at home, whether to do her art or work
at her computer, is very poor from an ergonomic standpoint. Her difficulties
in tolerating prolonged sitting and the adverse effect of that and other
postures upon her was well-established at trial. I have found that Ms. Gabor
suffers from chronic pain due to the Accident and is susceptible to periodic
exacerbations of her symptoms. An ergonomic workstation may support her ability
to succeed in reaching her future earnings potential.
[642] Based on
the totality of the evidence and, specifically, Dr. Cailliers
recommendations, I find that Ms. Gabors claims for a sit-stand desk, an
ergonomic chair, a wireless keyboard and laptop stand are medically justifiable
and reasonable. The defendants objections against an award to cover these
devices were unpersuasive.
[643] The sum of
$5,365 is awarded for assistive devices.
(b) Medical Equipment
[644] I accept Ms. Jewett’s
recommendation that a TENS device is an economical item that could help Ms. Gabor
with the exacerbations of her physical symptoms and thereby assist in the
management of her chronic pain and promote her function. The amount of $1,230
is awarded.
[645] There is
insufficient evidence to support an award for the other medical equipment
claimed.
(c) Medications
[646] Ms. Gabor
takes Advil, Tylenol and a prescription anti-inflammatory for her physical symptoms.
Her evidence about the frequency of her use and the dosage was imprecise. Ms. Jewett
estimated the combined future cost to be $17,598 based on assumptions
concerning dosage that were not proven at trial. In addition, she conceded that
it could not be determined whether Ms. Gabor would continue with the exact
medications or the assumed dosages.
[647] Ms. Gabor
has chronic pain and will periodically use medication to treat her symptoms.
These items are clearly medically justified and she is entitled to a reasonable
award in respect of them. I allow the following: Tylenol: $1,200, Advil: $1,500,
prescription anti‑inflammatory: $5,000.
(d) Medical, Professional
and/or Support Services
[648] In her
second report prepared shortly before trial, Dr. Caillier wrote that Ms. Gabor
should no longer undergo physiotherapy treatments. Ms. Jewett held a
different view. She recommended that Ms. Gabor have six sessions of
physiotherapy per year. While she acknowledged that such passive therapy would
not improve Ms. Gabors physical symptoms in the sense of making her
better, Ms. Jewett endorsed those treatments as a means of assisting Ms. Gabor
to cope with her symptom exacerbation and thereby maintain her function. Ms. Jewett
applied the same reasoning to her recommendation that Ms. Gabor have future
massage and acupuncture treatments. Ms. Jewett is qualified to make these
recommendations.
[649] Ms. Gabor
did not find massage to be therapeutic in the past and showed no interest in
reviving it as a form of treatment. An award to cover the cost of that treatment
modality is not reasonable. On the other hand, she has found physiotherapy and
acupuncture helpful in trying to cope with the after-effects of her injuries
caused by the Accident.
[650] Despite
the contrary view expressed by Dr. Caillier, I am persuaded on the evidence
as a whole that ongoing treatments for physiotherapy and acupuncture are
medically justified and reasonable in that they will continue to promote Ms. Gabor’s
ability to manage the periodic exacerbation of her symptoms which will help
maintain her function. I find that Dr. Kendall’s opinion concerning the
utility of Ms. Gabor continuing physiotherapy holds negligible weight
because he did not accept that she suffered from chronic pain and thus likely
did not consider the utility of future treatments in that context.
[651] I award
the sums of $2,282 in respect of Ms. Gabor’s future physiotherapy and $2,568
for acupuncture.
[652] The
parties agree to Ms. Gabors claim for the cost of occupational therapy in
the amount of $1,188. They also agree that she is entitled to an award for the
future cost of psychological counselling, vocational counselling and
rehabilitation sessions with a kinesiologist, but disagree about the respective
amounts. In my view, Ms. Gabor is entitled to an award that encompasses the
upper end of the costs of vocational counselling and kinesiology. Accordingly,
I award the sum of $989.50 in respect of the former and $1,291 for the latter.
[653] Ms. Gabor
is likely vulnerable to psychological relapse and has a reduced ability to
handle stress due to the Accident. Dr. Cheung did not turn her mind to
whether Ms. Gabor would benefit from counselling beyond a two-year
period. Ms. Gabors position is that the award for psychological
counselling ought to contemplate intensive counselling over the next two years
and then five sessions per year for the remainder of her life. In my view, a
lifetime award for counselling does not find adequate support in the evidence.
However, the defendants contention that Ms. Gabor is entitled to
counselling for a mere year is an extreme position in the other direction. I
award the sum of $8,000 in respect of Ms. Gabors future psychological
counselling.
[654] The evidence
also supports an award of a one-time award for driver retraining in the amount
of $1,126.
[655] There is
ample medical evidence that ongoing exercise and physical conditioning will be
beneficial to Ms. Gabor. She claims the sum of $12,174 for a lifetime gym
membership. The defendants oppose her claim on the basis that Ms. Gabor
admitted that going to the gym had been part of her life before the Accident
and that she would have continued to do so even had the Accident not occurred.
[656] There was
little evidence concerning Ms. Gabor’s pre-Accident use of the gym and the
costs associated with it. The evidence does not indicate that she attended regularly
while enrolled at Emily Carr or beforehand in Lethbridge. It is fair to say
that in the years preceding the Accident, she attended the gym on a casual
basis to maintain her general fitness and that she also relied on belly dancing
as a form of fitness.
[657] Because of
the Accident, Ms. Ms. Gabor must be committed to attend the gym and
perform the exercises that will be essential to the preservation and promotion
of her fitness and function. What was once a lifestyle choice that she likely
participated in with fluctuating frequency, is now a lifetime commitment to
increase and maintain her physical conditioning and manage her symptoms.
[658] It is not
possible to forecast what might happen. However, in balancing the
contingencies at play, I conclude that a reasonable allowance for a gym
membership is justified and reasonable in all the circumstances. I award the
sum of $8,000 in respect of that cost.
[659] In sum, based
on the recommendations of the medical experts, digested in the context of the
whole of the evidence, and taking into account the relative contingencies,
I am satisfied that the future care expenses I have allowed in the
aggregate sum of $39,739.50 for assistive devices, medical equipment, medications
and services are medically justified within the meaning contemplated by the case
authorities and are likely to be incurred by Ms. Gabor. I have
expressed these reasonable costs in present day values.
·
In‑Trust Claim
[660] Ms. Gabor
seeks an award of $10,000 in‑trust in respect of her parents for the
services they have provided to her since the Accident.
[661] The
defendants acknowledge merit to the in‑trust claim as it pertains
primarily to the support and assistance that Ms. Gabors parents provided
to her during the summer of the Accident and when Dr. Gabor visited her a
second time in October 2011. They assert that there is no basis for such a
claim after that stage because Ms. Gabor was self‑sufficient in her
home and able to attend to her self‑care and the activities of daily
living. The defendants also assert that Ms. Gabors parents would have
continued to visit her in Vancouver on a regular basis in any event. It is
their submission that an award in the range of $3,000 to $4,000 is appropriate.
[662] The
services provided by Ms. Gabors parents were necessitated by her injuries
and far exceeded the typical give-and-take between parents and their adult
child. While I agree that the assistance the parents supplied was most
intensive and demanding during the initial five months or so following the
Accident, I am satisfied they continued to make trips to Vancouver thereafter for
the sole purpose of assisting and supporting their daughter in a tangible, hands-on
way.
[663] Having
regard to the governing principles articulated in Bystedt (Guardian ad litem
of) v. Hay, 2001 BCSC 1735 at para. 180, affd 2004 BCCA 124, I
conclude that a reasonable in‑trust award is $6,000.
·
Special Damages
[664] Ms. Gabor
is permitted recovery of the out-of-pocket expenses she reasonably incurred as
a result of her injuries. Her entitlement is derived from the fundamental
principle that an injured person is to be restored to the position she would
have been in had the negligence not happened: Milina at 78.
[665] Ms. Gabor
claims expenses of $42,162.89 as special damages. The defendants acknowledge
that the cost of her treatments with Dr. Cheung and Ms. Olson is
properly recoverable. The combined cost is $22,968.35 and is allowed.
[666] The
defendants argue that Ms. Gabor’s claim for reimbursement of the cost of her
many physiotherapy sessions lacks evidentiary support. Their submission is linked
to the fact that in Dr. Cailliers first report she did not recommend
physiotherapy, and in her subsequent report written on March 24, 2014, she
stated that Ms. Gabor no longer needed to continue with physiotherapy or
acupuncture.
[667] Ms. Gabor
testified that she initially sought massage therapy, physiotherapy and
acupuncture treatments on the recommendation of her doctor. She stopped going
to massage because she did not think it was beneficial. Although she found
acupuncture to be a painful modality, it provided her with some symptomatic
relief and so she elected to endure it. Ms. Gabor also found that
physiotherapy improved her physical symptoms and helped her cope with the pain.
When it felt as though her progress had plateaued with one physiotherapist,
she switched providers and enjoyed even further improvement.
[668] Ms. Gabor
has been committed to her rehabilitation from the start. To that end, she has
tried numerous forms of treatment despite the fact that attending appointments
was fatiguing, she was anxious about driving and being driven to them and was prone
to feeling overwhelmed if she had more than one appointment in a day.
[669] It is
material that the vast majority of the physiotherapy appointments for which Ms. Gabor
claims reimbursement happened before Dr. Caillier wrote her second report.
[670] I conclude
that the expenses comprising Ms. Gabor’s claim for special damages for
physiotherapy ($5,856 + $4,025), acupuncture ($5,472) and massage ($1080) were
incurred reasonably in the circumstances and are properly recoverable. I also
allow the sum of $1,272 for mileage and parking for those appointments.
[671] The
foregoing special damages I have allowed total $40,673.35.
[672] Ms. Gabor
seeks an additional $20,000 in special damages in respect of expenses incurred
by her parents.
[673] The
authorities permit an award to one or more family members who have reasonably
incurred expenses or wage loss, or both, in order to provide a function that is
useful to or for the benefit of the plaintiff: Semenoff v. Kokan (1989),
42 B.C.L.R. (2d) 6 (S.C.), vard on other grounds (1991), 59 B.C.L.R. (2d) 195
(C.A.); Kahlon v. Vancouver Coastal Health Authority, 2009 BCSC 922.
[674] Dr. Ing
and Dr. Gabor extended their stay in Vancouver by three weeks just after the
Accident happened. In the months and then years that followed, they significantly
increased the frequency of their trips to Vancouver in order to provide
assistance and comfort to their daughter. The probabilities of the situation
also establish that their assistance and support was beneficial to Ms. Gabor,
particularly within the first 14 months or so when the ill‑effects of her
injuries were especially intense.
[675] Ms. Gabor’s
parents each purchased an airline flight pass for the cost of $4,796, permitting
each of them ten return flights between Lethbridge and Vancouver. The evidence
satisfies me that the parents used their respective flight passes for journeys
to Vancouver specifically to support their daughter, the majority of which they
would not have otherwise taken. During those trips they would typically rent a
nearby apartment in keeping with their pattern before the Accident, and would occasionally
stay in a hotel. I accept Dr. Gabor’s evidence that the sum sought to be
reimbursed does not include their meals, all of their accommodation or
ancillary expenses.
[676] I award
the sum of $14,000 in respect of this branch of Ms. Gabor’s claim of
special damages.
[677] Ms. Gabors
positive duty to take reasonable steps to minimize her losses brought about by
the Accident is well-settled: Janiak v. Ippolito, [1985] 1 S.C.R.
146; Chiu (Guardian ad litem of) v. Chiu, 2002 BCCA 618; Shapiro v.
Dailey, 2012 BCCA 128; Gregory at para. 56.
[678] The burden
of proof to show that Ms. Gabor has failed to discharge her duty rests on
the defendants. The law does not hold Ms. Gabor to a high standard of
conduct in mitigation. It is satisfied if she has taken steps that are reasonable
in the circumstances to reduce her loss.
[679] The second
essential element of the test requires the defence to prove that, had Ms. Gabor
taken reasonable steps, her losses would have been reduced: Gregory at para. 56.
[680] The
defence contends that Ms. Gabor neglected to reasonably mitigate her
losses by failing to comply with Dr. Cailliers recommendation that she
see a kinesiologist to facilitate improved physical conditioning, strength and
endurance and, possibly, lessen her fatigue.
[681] Ms. Gabor
testified that she did not follow Dr. Caillier’s recommendation to see
another kinesiologist because she could not afford to do so. I accept that, as
well as her evidence that she continued to do the exercises she learned from
the kinesiologist she had seen at Ms. Olsons recommendation. I have previously
remarked upon Ms. Gabor’s diligence and commitment to her rehabilitation. She
followed several medical recommendations and worked with an occupational
therapist, counsellor, a kinesiologist, two physiotherapists, a massage therapist
and an acupuncturist, incurring more than $40,000 in expenses. She kept to a
steady schedule of appointments over a number of years and in time showed
significant improvement, particularly with respect to her physical symptoms. As
I have noted, she persevered even though driving and being driven to the
appointments were unpleasant for her, and attending them could be overwhelming
and extremely fatiguing.
[682] On
balance, the defendants have not proved that Ms. Gabor acted unreasonably
in not following Dr. Caillier’s recommendation or that her damages would
have been reduced had she done so. This branch of the defendants mitigation
claim cannot stand.
[683] As I
understand it, the defendants also assert that starting in around the spring or
summer of 2013, for reasons unrelated to the Accident, Ms. Gabor lost her
motivation to pursue employment beyond belly dancing and simply elected to give
up on finding a job. They criticize her for failing to follow the
recommendation of Drs. Smith and Caillier to obtain career counselling.
[684] The
evidence establishes that any decreased drive or motivation on the part of Ms. Gabor
was symptomatic of the constellation of injuries she incurred in the Accident.
Even so, she did attempt some work other than belly dancing; she accepted
employment with Mr. Rauschers company and put on the exhibition at the
Gallery. With the assistance of Ms. Olson and her mother she also applied
for a few jobs in her field and one or a couple of art-related grants. Those
efforts were not fruitful. As Ms. Gabor’s condition gradually improved,
she focused on expanding her belly dancing business which allowed her to make a
considerable sum for an hour or two of work. She undertook more performances
and began to teach.
[685] Given that
since the Accident, Ms. Gabor has been encumbered by a cluster of symptoms
that pose significant limitations on her vocational options, I conclude that Ms. Gabor’s
actions were reasonable in all the circumstances. Moreover, and in any event,
the defendants have not proved that had Ms. Gabor taken the career
counselling any earlier or applied for jobs in a wider variety of areas, her
losses would have been reduced.
[686] In the
end, there is no principled basis to reduce Ms. Gabor’s damages based on
the doctrine of mitigation.
[687]
If the parties are unable to agree as to costs, they may file written
submissions implementing a time table of their choosing that incorporates a
final deadline of November 20, 2015.
Ballance
J.