IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101122

Docket: M082592

Registry:
Vancouver

Between:

Huda Jokhadar

Plaintiff

And

Shahram Dehkhodaei
and Shokat Siavosh

Defendants

Before:
The Honourable Mr. Justice Willcock

Reasons for Judgment

Introduction

[1]            
Huda Jokhadar seeks compensation for injuries she suffered in a motor
vehicle accident in the interchange at the north end of the Lions Gate Bridge
in West Vancouver on October 18, 2006. Since the accident she has experienced
back, neck, right shoulder and right arm pain and weakness that is, in part, a
result of a soft tissue injury and, in part, a result of irritation of the
nerve root caused by protrusion of a disc at the C5-6 level of her spine. In
addition, Ms. Jokhadar says a bipolar affective disorder which has
affected her for years has been exacerbated by the emotional and physical
impact of the accident. That disorder is said to coexist with and contribute to
post-traumatic stress disorder, which is also said to arise out of the
accident. The assessment of Ms. Jokhadar’s claim for loss of enjoyment of
the amenities of life and the loss of past and prospective income requires
careful consideration of her lengthy and complex psychiatric history.

Evidence

Ms. Jokhadar’s Pre-2002 Medical History

[2]            
Ms. Jokhadar was born in Beirut, Lebanon on January 17, 1972, and raised
in Syria. She married Hishram Wattar, a Syrian-born businessman, in 1986 when
she was 14 and he was 24. The couple immigrated to Fredericton, New Brunswick
in the summer of 1987. Their first child, a daughter, was born in 1988 when Ms. Jokhadar
was 16 years of age. After the birth of her daughter she returned to Syria,
where she remained with her family for 5 months. While she was in Syria she
learned of her husband’s intention to divorce her, which he did, according to
religious practice, by letter. Surprised by this development, she made
arrangements to return to Canada in an attempt to save her marriage.

[3]            
On her return to Canada she reconciled with her husband and moved with
him to Ottawa. She gave birth to a second daughter in 1992 and describes her subsequent
life in Ottawa as stable, happy, and stress-free. She missed Syria, however, and
made plans to return. Mr. Wattar considered moving to Syria to accommodate
her but following her departure, he decided to remain in Ottawa and again
divorced her. Neither party to the marriage now attributes the divorce to
mental illness or emotional instability.

[4]            
Ms. Jokhadar remained with her family and children in Syria for
approximately nine months before returning to Ottawa at the end of 1994 so that
her daughters could be near their father. On her return she lived in an
apartment with her girls and trained to become a hairdresser. Although she was
on welfare for some period of time in Ottawa she says this was an enjoyable
time in her life.

[5]            
Mr. Wattar moved to Vancouver in 1996, accompanied by his eldest
daughter, in search of a more moderate climate. In Vancouver, Mr. Wattar
married another woman, with whom he had a third daughter. He occasionally made
arrangements to have his eldest daughters visit and speak with Ms. Jokhadar
by telephone, but he was not so close to her as to be aware of her psychiatric
illness or treatment while she was in Ottawa.

[6]            
From 1996 to 2002, with the exception of short visits and telephone
calls, Ms. Jokhadar was separated from her husband and daughters. During
this period she completed her hairdressing training and focused on herself and
her career. By 2001, however, she became depressed; in part because she was
alienated from her family, and had trouble doing her job. She occasionally
drank excessively. On one occasion, while returning from a club in early 2001 she
was stopped by the police because she was driving erratically. When asked to
provide a breath sample she felt that if she blew even a small breath into the
apparatus the world would explode. Surprisingly, she says she was permitted to
go home. The next day she went to the office of her children’s paediatrician
and created a disturbance. The police arrived; she was taken to the Ottawa
General Hospital; and she was admitted to the psychiatric ward, where she remained
for three weeks. She says it was at that time her bipolar disorder was first
diagnosed. This experience was said to be a turning point in her life. She
changed jobs, stopped associating with some friends and altered her lifestyle.
She acknowledges, however, that even after moving to a new job, she was
suffering from significant depression.

[7]            
The medical records in evidence contain summary descriptions of Ms. Jokhadar’s
pre-2002 medical and psychiatric history. Because the sole source of those
entries was her memory and because that memory is frail, the pre-2002 history
is incomplete and vague. The entries are, however, of some value in
appreciating the longstanding nature of Ms. Jokhadar’s illness. In
addition to documenting the events described above, the records refer to a two
week hospital admission in Ottawa in 1996, said to have been a result of a
general mental breakdown related to the end of a relationship with another
person. Unfortunately there is little evidence of the nature and extent of that
breakdown and no medical diagnosis. The records also establish that Ms. Jokhadar
periodically suffered from depression after her 1986 marriage, related to,
among other things, isolation and loneliness and a history of miscarriages.

[8]            
It was suggested to Ms. Jokhadar, at trial, that she had suffered
from auditory and visual hallucinations since childhood. She acknowledged that
as a child she once saw what she believed to be angels. Dr. Termansen, her
treating psychiatrist, cautions that one must not make too much of that because
for a young woman in her culture a memory of such a vision is not unusual. This
incident was so remote and so poorly described in the evidence that nothing
significant can be made of it. The most that can be said on the evidence is
that Ms. Jokhadar suffered from depression in the 1990s that culminated in
at least one acute manic episode, in 2001, and perhaps another in 1996. From
2001 to the present the medical records reflect periodic significant ongoing
symptoms of bipolar disorder.

2002-2006

[9]            
Ms. Jokhadar moved to Vancouver in early 2002. She had hoped for an
immediate reconciliation with her husband but that did not happen. She began
working as a hairdresser but soon felt her depression was becoming overwhelming
and called the police to her apartment. She was admitted to the psychiatric
unit at St. Paul’s hospital in early 2002. In the records of that admission Mr. Wattar
is recorded to have stated that he had divorced Ms. Jokhadar as a result
of her mental instability. At trial he denied that was the case. He said that Ms. Jokhadar
had been emotional and demanding but that he had not considered her to be
suffering from mental illness until he first learned of her bipolar disease
while she was at St. Paul’s. That diagnosis caused him to consider her
behaviour from a completely different perspective and to become more
understanding. Having ended his relationship with the woman who bore his third
daughter, Mr. Wattar again reconciled with Ms. Jokhadar in March 2002
and they have lived together since then.

[10]        
The 2002 hospital admission led to Ms. Jokhadar being referred to a
family physician, Dr. Peter Schwarz together with Dr. Carolyn
Gilbert, a frequent locum in his office, he has regularly treated Ms. Jokhadar
from 2002 to date. From March 2002 onward there are records of prescriptions
for antidepressants and antipsychotics from Drs. Schwarz and Gilbert and
references to regular referrals for follow-up psychiatric assessment and
treatment. In September 2002 Dr. Gilbert referred Ms. Jokhadar to Dr. Mohamed
Abdel-Fattah, a psychiatrist and the director of the acute psychiatric service
at the Lions Gate Hospital. Dr. Abdel-Fattah formed the opinion that she
was suffering continuing symptoms of bipolar disorder. He has subsequently seen
the plaintiff and her husband on many occasions.

[11]        
Ms. Jokhadar’s life became normalized for a period following the
2002 hospital admission. She worked as a hairdresser and made $25,000 in 2002.
She remarried Mr. Wattar, lived with her children, and did some gardening
and housekeeping. Her medical problems, however, continued. In December 2002
she began to see Dr. Werner Pankratz, a psychiatrist. He thought that Ms. Jokhadar
was suffering from a bipolar mood disorder which was only partially in
remission and advised her that she would require long-term management which
would include medication, a mood stabiliser, and consistent psychiatric follow
up. He noted that Mr. Wattar was of the view that there was a much longer
history of significant untreated mood swings than Ms. Jokhadar had
reported.

[12]        
On January 16, 2003, Dr. Schwarz saw Ms. Jokhadar for symptoms
of De Quervain’s syndrome, an inflammatory condition of the wrist that is an
occupational hazard among hairdressers. On January 30, 2003, he excised a nodule
in a tendon and gave a steroid injection. His testimony was that Ms. Jokhadar
was off work for four months from December 2002 to April 2003 for symptoms of
De Quervain’s. With the exception of that period, Ms. Jokhadar claims to
have worked four days per week in 2003. She reported earned income of $14,400
from employment and $5,202 in Employment Insurance (“EI”) benefits in 2003.

[13]        
Ms. Jokhadar says she continued to work as a hairdresser four days
per week in 2004 until she suffered an ankle injury that required her to wear a
cast and take three months off work. She reported income from employment of
$14,413 and EI income benefits of $1,668 in 2004.

[14]        
Dr. Pankratz continued to see Ms. Jokhadar periodically until
May 2004. During that period he recorded that she occasionally failed to take
her medication as prescribed; she had difficulty accepting the bipolar
diagnosis. When he was advised in May 2004 by Ms. Jokhadar and Mr. Wattar
of their desire to have another child. Dr. Pankratz cautioned them that Ms. Jokhadar
should stop taking mood stabilisers and seek psychiatric care for her mood
disorder when off medication.

[15]        
It is Mr. Wattar’s evidence that if he had any concerns that
pregnancy would be problematic he would not have attempted to have another
child. He says from 2002 to 2006 Ms. Jokhadar had no difficulty doing
physical work. She did housework, was energetic and maintained a clean house. She
experienced depression, but not psychotic episodes. The family got together
with friends; their business was doing well; they were having fun.

[16]        
Ms. Jokhadar’s 22 year old daughter, a well-spoken psychology
student, testified with respect to her very difficult experiences as the child
of a parent suffering from bipolar disorder. Her testimony was honest but
clearly affected by her youth at the time she made certain observations and her
desire to be supportive of her mother, with whom she is very close. She
remembers nothing of her mother’s problems before 2002. She does not recall her
mother being anxious or moody; she seemed normal and happy with her life. Following
her mother’s move to Vancouver and her 2002 hospitalization she was happy to
have her mother return home. She recalls her as an organizing force in the
period from 2002 to 2006. The family home was happy during her high school years
and she remembers pleasant family trips. She recalls that her mother’s work as
a stylist was limited by her ankle injury for a while but she loved her work
and she had many loyal clients. She was aware of her parents’ plans to have
another child and thought it was a great idea. Her parents had been stable and
close, so far as she could tell, to 2004. She knew pregnancy would mean her
mother would have to go off her medication. She did not know what her mother was
using, but did not anticipate a problem. She says neither she nor her father would
have approved the idea of having another child if they had any concerns about Ms. Jokhadar’s
emotional stability.

[17]        
In late 2004 Ms. Jokhadar advised Dr. Schwarz that she and her
husband had visited an artificial insemination clinic in Spokane, Washington
twice and she had been off her psychiatric medication for six months. He agreed
with the decision to go off medication. Mr. Wattar reported that she was
manageable but not stable while off medications. She was depressed, anxious and
weepy at times.

[18]        
A letter from Human Resources and Skills Development Canada indicates that
between July 11, 2004, and July 9, 2005, Ms. Jokhadar was employed for 633
hours. She therefore worked an average of 12 hours per week, less than two days
a week, in that period.

[19]        
There was a flare-up in her manic symptoms in July 2005. An EI record
shows that that she received employment benefits from July 10 to October 30,
2005. That corresponds with the flare-up in manic symptoms documented in the
records. Ms. Jokhadar went back on medication. After she returned to work
she advised Dr. Schwarz that she was suffering a tremor, a side effect of
the use of the antipsychotic used to treat her bipolar disorder, Seroquel. Her
reported income from employment in 2005 was $9,582 and her EI benefits were
$3,604.

2006 Pre-accident

[20]        
On April 27, 2006, Ms. Jokhadar advised Dr. Gilbert that she
was depressed and lethargic; she had been tearful at work. On May 11, 2006, she
was still very tired. Her medications were adjusted and blood tests were
ordered to investigate causes of fatigue. On June 30, 2006, she saw Dr. Abdel-Fattah,
complaining of reduced concentration and depression. She was weepy. Dr. Abdel-Fattah
noted that she was depressed. He was cautious in his treatment because he was concerned
that use of antidepressants might trigger a manic episode.

[21]        
From August 2006 through to the accident that gives rise to this claim Ms. Jokhadar
was prescribed, at various times, the antidepressants Cipralex, fluoxetine and
Welbutrin. She claims not to have taken many of the prescribed antidepressants
because she was still trying to get pregnant. She continued, however, to
receive prescriptions for Welbutrin until September 13, 2006. She is uncertain
of the date she stopped taking the medications prescribed and dispensed to her,
but it would make little sense for her to continue to obtain and pay for
medication she was not using. I find that she was using that medication on an
ongoing basis until at least the date each was last dispensed.

[22]        
At her last pre-accident visit on September 13, 2006, Dr. Schwarz
noted that Ms. Jokhadar was on Welbutrin, and that her mood was stable
with few ups or downs. She reported that she was sleeping well but irritable
and angry at times, especially at work. Dr. Schwarz noted that she advised
him that she often felt the need to have a drink for confidence to go to work.
She was working about 3 days per week, up to 30 hours a week, in the months
before her accident. There is some evidence that her anger at work in 2006 was
a symptom of a manic phase of her illness.

[23]        
We now know that between the office visit and her accident on October
18, 2006, Ms. Jokhadar became pregnant. Before her accident she was
therefore destined to go off mood stabilizing medications for at least the
duration of her pregnancy to July 2007. When she had previously gone off
medication while attempting to become pregnant, in 2004-2005, her depression
had become disabling. She required medication on an ongoing basis to control
her longstanding bipolar disorder.

[24]        
Ms. Jokhadar declared income of $26,047 in 2006, and denied income
splitting with her husband that year. I place little reliance upon the 2006
declared income for the purpose of assessing her loss of income and
income-earning capacity. Ms. Jokhadar did not work at all in November and
December 2006. She only claims to have worked 3 days per week when she was
working in 2006. Given that she later did engage in income splitting with Mr. Wattar,
by declaring some of the income from his restaurant business to be hers for tax
purposes, given no other explanation for the 2006 declared income and given the
absence of any documentary evidence of income for employment, I conclude that
the declared income on the 2006 income tax return is not as indicative of Ms. Jokhadar’s
pre-accident income or her future income earning capacity as the declared
income in 2003-2005.

[25]        
Mr. Wattar’s recollection is that in the summer prior to her
accident their family life was normal and happy. Ms. Jokhadar was not unusually
depressed. He thought everything was fine at her work and was not aware of her drinking
in the morning. He does not think that occurred; it would have been impossible
to hide. He knew about disputes at her work but regarded these as normal in the
workplace. Mr. Wattar’s evidence about this period is inconsistent with
the medical records, which I regard as a more reliable indicator of the state
of Ms. Jokhadar’s pre-accident health. Mr. Wattar minimizes the
extent of Ms. Jokhadar’s pre-accident depression. For example, he cannot
recall the symptoms that led her to take three months off work in 2005. Nor
does he remember her becoming increasingly depressed when off medications,
although that is well-documented.

[26]        
Her daughter also testified that Ms. Jokhadar was emotionally
stable in 2006. She was getting ready to go to university at that time and her
mother was pleasant and helpful to her and her friends. She said she had never
seen her mother drinking other than at dinner on special occasions. She does
not remember having alcohol in the house.

[27]        
Ms. Sadik, a family friend who has known Ms. Jokhadar since
2002, saw her regularly at the family home and went on many family trips with her
She described Ms. Jokhadar as a very energetic woman who loved life before
her accident. She was very clean and organized, “a 1st class housewife”. She
appeared to have no problems with physical activities. She was not moody and
appeared to be happy with her children, her house, and her husband. Ms. Sadik
was unaware of any family difficulties prior to 2006; was unaware of Ms. Jokhadar’s
documented unhappiness at work in September 2006 or her trouble with depression
when she stopped taking medication to become pregnant in early 2005; and was
entirely unaware Ms. Jokhadar had a mental illness until 2008. To some
extent Ms. Sadik’s ignorance of significant functional problems prior to
the 2006 motor vehicle accident is a measure of the relative quiescence of Ms. Jokhadar’s
bipolar illness but it must also be regarded as evidence that Ms. Sadik
was not close enough to Ms. Jokhadar at this time to be regarded as a knowledgeable
observer of her mental health. There is support for this conclusion in Ms. Jokhadar’s
own evidence that she only felt comfortable discussing her depression with her
treating doctors.

October 18, 2006

[28]        
On Wednesday, October 18, 2006, Ms. Jokhadar went to her salon at
Park Royal in West Vancouver. It was dark when she left Park Royal. As she
drove east along Marine Drive through the Lions Gate Bridge interchange she
suddenly saw headlights coming toward her. She braked and shut her eyes on
impact. She recalls little of the collision, but says that when she got out of
the car and walked to the nearby curb she was shaking and felt cold, she was
not sure she was alive. She remembers little pain at the accident scene, but
says that when she got to the Lions Gate Hospital in North Vancouver she began
crying hysterically and felt pain all over.

[29]        
Mr. Dehkhodaei does not deny responsibility for the accident giving
rise to this claim. He testified not to the absence of fault, but to what he
regarded as the minor nature of the collision. In the early evening he was driving
north on the Lions Gate Bridge at about 60 km/h in heavy rain, intending to
turn east on Marine Drive to proceed to Capilano Road. As he began to turn he
lost control of his vehicle. The left front wheel of his car hit the concrete
median, causing his car to spin. He bounced over the median and travelled into
the other eastbound lane of traffic, that coming from West Vancouver, where he
collided with Ms. Jokhadar’s vehicle and a second median, separating
westbound from eastbound traffic. Although he felt his car sliding and then
turning, he does not believe his car ever turned so far as to face eastbound
traffic. There was significant damage to the front and front right corner of
his car. He noted that the hood of Ms. Jokhadar’s car had been crumpled
and forced open. Her airbag was activated in the collision.

[30]        
Mr. Michael Allen, an ICBC estimator, described the damage to Ms. Jokhadar’s
car. It was not insignificant. Most of the damage was to the front and right
front corner. Because the frame rail was bent the car was a constructive total
loss.

[31]        
Mr. Dehkhodaei denied the suggestion that this was a head-on
collision, despite his difficulty remembering many of the details of the
accident. He insisted that Ms. Jokhadar’s vehicle struck his car on the
driver’s side near the door, despite the absence of any evidence of a
significant collision at that point. I conclude that he was mistaken in his
recollection at trial, which differed in many respects from his earlier
description of the accident. I accept Ms. Jokhadar’s recollection of the
accident and conclude that the vehicles collided violently while facing each
other almost head on.

[32]        
After the collision, Ms. Jokhadar remained in her car for 5 to 10
seconds before she opened her car door and got out, unassisted, but she soon
began crying and trembling. She indicated to Mr. Dehkhodaei that she was
OK, but was weeping.

[33]        
 When the emergency health services personnel arrived at the scene of
the accident, Ms. Jokhadar was alert and oriented but she complained of
neck pain and back pain. She was taken to the Lions Gate Hospital. On admission
she complained of neck pain radiating to her left elbow and discomfort in her
mid-abdomen. She was discharged home in a hard collar and advised that she
should wear that for two days, then replace it with a soft collar and follow up
with her family doctor. She was thought to have suffered a sprain of her
cervical spine.

2006 Post-accident

[34]        
Ms. Sadik went with the family on the day after the accident to see
Ms. Jokhadar’s vehicle, saw her sit on the floor and heard her say that
when the accident occurred she saw the other car’s headlights, closed her eyes,
and said to herself “I’m dead, I’m finished, I’m done”.

[35]        
Dr. Gilbert saw Ms. Jokhadar on October 20, 2006. She was weepy
as she described the accident. She complained of pain in her right arm and
tenderness over the 2^nd and 3^rd cervical vertebrae. Dr. Gilbert
did not prescribe an anti-inflammatory, as she otherwise would have done,
because it was thought Ms. Jokhadar might be pregnant. By the time Ms. Jokhadar
was again seen by Dr. Gilbert on November 3, 2006 she was known to be
pregnant. Dr. Gilbert suggested a referral to Dr. Misri, the director
of The Reproductive Mental Health Program at St. Paul’s Hospital, an expert
in the treatment of women with psychiatric illnesses during pregnancy and in
the postpartum period. Ms. Jokhadar was afraid of the potential effect of
the accident on her pregnancy and was afraid to see Dr. Misri. There is no
record of her doing so. When Ms. Jokhadar learned she was pregnant she
became fearful of losing the foetus or its features being affected. Ms. Sadik
tried to comfort her but to no avail.

[36]        
On October 24, 2006, she attended at physiotherapy and complained of
pain down the right side of her back radiating to her toes. She returned to
physiotherapy on four occasions to December 5, 2006.

[37]        
On November 15, 2006, Ms. Jokhadar complained to Dr. Gilbert
of symptoms consistent with injuries in the motor vehicle accident. Dr. Schwarz
first saw her after the accident on December 5, 2006. She complained then of right-sided
pain in the shoulder and neck. He found muscle spasm and inflammation on
palpation. She was very emotional. Normally at this stage a patient might be
engaging in gentle range of motion and gentle stretching exercises. Dr. Schwarz
felt Ms. Jokhadar was unfit to work due to her injuries.

[38]        
Her family noted post-accident emotional and behavioural changes. Ms. Jokhadar
remained bedridden for a week after the accident and was very emotional. When
her daughter tried to reassure her, Ms. Jokhadar said she felt numb. Her emotional
state became unstable, she slept in the daytime, didn’t take care of herself
and was not well dressed. She stopped socializing. A month after the accident
she began to complain of constant physical pain. She was, in her daughter’s
words: “Totally out of whack”. Fear seemed to take over her life. She was afraid
to walk, to go to the mall or to drive. Her daughter knew she had nightmares, but
her mother would not tell her what they were about.

2007

[39]        
On January 10, 2007, Ms. Jokhadar saw Dr. Schwarz for symptoms
of pneumonia. Her next visits were predominantly for those symptoms, but in
February 2007, she was referred to Dr. Mark Adrian, a specialist in
physical medicine and rehabilitation. Dr. Adrian obtained a history of
symptoms of neck pain, predominantly on the right side, radiating into the
right shoulder girdle. Ms. Jokhadar also complained of pain in the lower
back region over the right lumbosacral junction travelling into the right
buttock. Her symptoms were aggravated with reaching, pushing, pulling, carrying,
and prolonged sitting. Dr. Adrian diagnosed mechanical neck, thoracic, and
lumbar spinal pain. He anticipated a gradual recovery over three to six months
and recommended a low-impact, light exercise program.

[40]        
In March 2007, Ms. Jokhadar reported continuing significant back
and neck pain to Dr. Schwarz, who again referred her to Dr. Misri.
Again, she did not attend.

[41]        
Ms. Jokhadar gave birth to a healthy baby, a son, on July 10, 2007.
Her eldest daughter was concerned about her ability to manage at home, didn’t
want to leave her, and felt obliged to take care of the house. She had been a
good and popular student in high school, but because of her obligations at home
at this time she made few friends at university and failed a course that fall.
She felt her mother became too focused on herself and gave her son little
attention. She breastfed him less than a month, complaining of shoulder pain
when feeding.

[42]        
By the fall of 2007 Ms. Jokhadar was still doing little at home. In
December 2007 she was again complaining to her doctors about injuries and
stress related to the car accident. Dr. Schwarz felt that Ms. Jokhadar
was suffering from chronic whiplash symptoms. He referred her to Dr. Paul Termansen
for treatment of her bipolar disorder.

2008

[43]        
Ms. Jokhadar believes she returned to work and worked 8 hours per
day for three months, commencing in late February 2008. She was encouraged to
do so by her family who felt work would lift her depression. Constant pain made
work intolerable and she soon reduced her hours to part-time. She was tired and
guilty because she was not doing her job well. According to her family, she
came home from work crying every day and had no energy to do housework. In
March 2008, Dr. Schwarz made a note that Ms. Jokhadar appeared to be
suffering from hypomania; her mood was rapidly fluctuating. She had been working,
going to the gym, and going for walks but she was irritable, self-critical, and
retreating from life. Dr. Schwarz prescribed an antidepressant and referred
her to Dr. Pankratz.

[44]        
Dr. Schwarz continued to see Ms. Jokhadar regularly and
monitored her antidepressant and antipsychotic medication. On March 28, 2008,
he recorded the patient’s wish to die. In April he noted that the antipsychotic
she was then taking “zombified” her. She felt her psychiatric medications were
becoming less effective. They then made her tired, frustrated and bored.

[45]        
She went to see Dr. Pankratz on April 8, 2008 because, in her
words, she felt dead. She reported that since her motor vehicle accident she
had felt fearful when outside her home and that she lived with a sense of apprehension
and dread. Dr. Pankratz felt she was still obviously depressed and
functioning at a poor level.

April 12 to 17, 2008, Lions Gate Admission

[46]        
From April 12 to 17, 2008, Ms. Jokhadar was an in-patient at the
Lions Gate Hospital, having been admitted through the emergency department as a
result of bizarre behaviour. While at Lions Gate she was assessed by Dr. Glen
Freedman and Dr. Abdel-Fattah. Dr. Freedman noted that on admission
her thoughts were tangential, her speech was pressured, her thoughts were
racing, and she was preoccupied with visual and auditory hallucinations. Dr. Abdel-Fattah
was advised by Mr. Wattar of a suspicion that Ms. Jokhadar had been
taking too many antidepressants and had refused to take mood stabilizers, as
they made her feel dull. Dr. Abdel-Fattah believed that antidepressants
had precipitated manic episodes in the past. He counselled her to avoid the use
of antidepressants as they appeared to trigger delusional manic episodes. The
admission was described in the hospital records as having occurred as a result
of an adverse reaction to Manerix (a MAO inhibiting antidepressant), which was
thought to have precipitated a manic episode. Ms. Jokhadar accepted a
recommendation that she commence a trial of Lamictal, an antiepileptic drug
used as a mood stabilizer for depressed bipolar patients, as a means of
avoiding antidepressants. The defendants say it is noteworthy that on this
admission Dr. Abdel-Fattah was not aware of the patient’s motor vehicle
accident. He agreed that the car accident was not an issue he ever addressed.
He did not diagnose post traumatic stress disorder (“PTSD”).

[47]        
During the April 12 to 17, 2008, Lions Gate admission Ms. Jokhadar
expressed some dissatisfaction with Dr. Pankratz’s care and she was
referred to Dr. Pedro Paragas for treatment on her discharge. Dr. Paragas
saw her in June 2008. He concluded she was suffering from a mood disorder, in
partial remission. He prescribed both Lamictal and the modafinil that had been
discontinued by Dr. Abdel-Fattah.

June 23-30, 2008 Lions Gate Admission

[48]        
In June 2008 Ms. Jokhadar was again hospitalised. Family members again
believed she had been non-compliant with her medication. When her behaviour had
become increasingly bizarre over a period of approximately two weeks they
called the police, who again took her to Lions Gate Hospital. During the course
of the resulting June 23-30 admission, she was assessed by Dr. Avinder
Minhas, who concluded that she had been in a manic phase of her bipolar
disorder. Ms. Jokhadar denies she told the hospital staff on that
admission she had gone off her medication, as was recorded in the chart.

[49]        
By June 30, 2008, her thought disorder and perceptual disturbances had
resolved. She was on appropriate medication and was discharged to see Dr. Allan
Burgmann for follow up. She was taken off the modafinil prescribed by Dr. Paragas.
On discharge she consulted with Dr. Schwarz; he prescribed medication
sufficient to effectively treat her condition during a planned vacation to
Syria commencing July 7, 2008.

2008 Post-Discharge

[50]        
In June 2008 the family moved to a new home. To reduce the stress of the
move the family arranged for Ms. Jokhadar to visit Syria with one of her
daughters and her son. From July to September 2008 she was in Syria. The family
felt she did not improve at all. Ms. Sadik, who was in Syria at that time,
met her there and then first learned of Ms. Jokhadar’s bipolar illness. On
returning to Vancouver Ms. Sadik agreed to live with the Wattars and assist
with housework and child care. In late 2008, Ms. Jokhadar continued to
complain of pain, was unhappy, and did not engage in activities.

[51]        
Mr. Wattar says when Ms. Jokhadar went back to work after
returning from Syria in 2008 she had not recovered emotionally. She was
desperate to work and contacted the salon but they didn’t want to hire her. Mr. Wattar
made a plea on her behalf that led to a decision to permit her to return to
work 2 or 3 days per week. When she did so in October 2008, she tried to hide
her pain and limitations from co-workers. She continued to use antipsychotics
and antidepressants. In October and November 2008 she reported to her doctors
that she suffered right shoulder pain and right cervical and thoracic back pain
after work. Dr. Schwarz’s notes indicate that as her mood disorder was
increasingly well-managed she made more regular complaints of neck and right
shoulder pain. In early 2009, she complained of significant, continuing
paravertebral and cervical thoracic pain.

February 21-25, 2009, Richmond General Admission

[52]        
On February 21, 2009, Ms. Jokhadar suffered another episode of
acute manic psychosis leading to hospitalisation. Her family again noticed her
behaviour becoming increasingly erratic over a period of five to seven days until
she was admitted involuntarily and kept in secure seclusion. She gradually
settled over a number of days as her medication was adjusted. There is an
uncertain history with respect to whether Ms. Jokhadar had been compliant
with her medication prior to admission. Mr. Wattar suspected she was
becoming addicted to modafinil and using more than usual. Ms. Jokhadar
claims to have been taking medication as recommended by her physicians and she
denies her husband’s suggestion to the staff that she was addicted to modafinil
or that this had acted as a stimulant, triggering manic episodes. She denies
that she stopped taking the antipsychotic, Seroquel. She acknowledges, however,
that she has given inconsistent histories to health care providers, Seroquel
caused her to feel “dead”, and once she began using modafinil she suddenly
became awake.

[53]        
Ms. Jokhadar was discharged against medical advice on February 25,
2009. Mr. Wattar says that upon her discharge she seemed to be calmer, but
she had not recovered. She was still manic, was dressing provocatively and
acting strangely.

March 2-30, 2009 Lions Gate Admission

[54]        
Ms. Jokhadar was again involuntarily admitted to hospital shortly
thereafter, on March 2, 2009, as a result of manic symptoms. During this
hospitalisation she was again seen by Dr. Abdel-Fattah. In his opinion she
demonstrated both ends of her bipolarity and had poor insight. She was
histrionic, flamboyant and narcissistic. Dr. Abdel-Fattah recorded Mr. Wattar’s
statement that she was not using the Seroquel that had been prescribed for her
and noted that Ms. Jokhadar admitted that she was not using medications as
prescribed. Dr. Abdel-Fattah has no recollection or note of any discussion
of the motor vehicle accident on this visit.

[55]        
Ms. Jokhadar was given extended leave from the hospital on March
30, 2009, rather than being discharged, because of the family’s continuing concern
about non-compliance with medication. It was a term of her leave that she would
attend regularly at Community Psychiatric Services and stay on the medications
prescribed.

[56]        
Ms. Jokhadar says her problems in early 2009 were due to stress. She
denied non-compliance with prescriptions and attributed her hospitalization to
the vagaries of bipolar disease, particularly in the presence of stress. Mr. Wattar
says he thought non-compliance with medical advice was a problem until physicians
advised him that Ms. Jokhadar could not handle stress. It was a relief
to him to learn that Ms. Jokhadar’s manic episodes were not intentionally self-induced.
He understood that she would attend the outpatient clinic upon her discharge
and, on that basis, he was willing to stay with Ms. Jokhadar and support
her. He had considered divorce before the 2009 hospitalization, but says that
is not on his mind now.

2009 Post-Discharge

[57]        
Ms. Jokhadar came into the care of Dr. Termansen, who first
saw her in consultation on April 4, 2009 and has since seen her regularly and followed
her participation in the Community Psychiatric Services programme.

[58]        
There is evidence that Ms. Jokhadar’s physical injuries have not
resolved. Through 2009, Ms. Jokhadar continued to see Dr. Schwarz.
She regularly complained to him of shoulder pain and upper thoracic pain. She
attended acupuncture and found that this was helpful. On May 22, 2009, she
returned to see Dr. Adrian for follow-up assessment. Dr. Adrian noted
a mild restriction of neck range of motion and tenderness at the base of the
neck and over the mid-back spinal segments. He thought Ms. Jokhadar was
continuing to experience clinical features of mechanical neck and mid-back
pain.

[59]        
On June 1 and June 18, 2009, Ms. Jokhadar attended at an assessment
by Dr. William Koch, a psychologist retained by her counsel.

[60]        
On June 19, 2009, she attended an independent medical assessment
conducted by Dr. Kevin Solomons, the psychiatrist retained by the
defendant.

[61]        
On July 23, 2009, Dr. Schwarz noted that Ms. Jokhadar required
regular physiotherapy for her chronic whiplash injury. When her pain persisted
he referred her to the Rapid Access Spinal Clinic at Lions Gate Hospital. On
September 11, 2009, she attended for a cervical spine x-ray that revealed
moderate disc space narrowing and small osteophytes at the C5-6 level. She
underwent a CT scan at Canadian Magnetic Imaging on September 24, 2009. The CT
scan revealed a large disc protrusion at the C5-6 level with cord compression
and significant foraminal narrowing described as follows:

At C5-C6 there is a moderate disc
space narrowing and desiccation. There is a right paracentral and foraminal
broad-based disc protrusion. This significantly indents and deforms the cord.
Significant mass effect on the cord is noted. Cord signal is normal without
intracord hemorrhage or obvious edema. There is significant encroachment on the
right neural foramen and displacement of the exiting nerve root.

[62]        
These results are described by the radiologist as demonstrating disc
desiccation involving the majority of the mid and lower thoracic spine discs.

[63]        
On October 8, 2009 Dr. Ramesh Sahjpaul, a neurosurgeon, examined Ms. Jokhadar
and reviewed the MRI of September 24, 2009. He concluded that she had a soft
tissue injury to her neck and that she might have some right shoulder pathology.
He was uncertain whether her right arm symptoms reflected the impingement of
the disc on the nerve root, because of the absence of radiated pain in the arm.
He was concerned there may be some early spinal cord compression symptoms. He
recommended a right C6 nerve root block and follow up assessment.

[64]        
On October 22, 2009, Ms. Jokhadar underwent a cervical nerve root
block.

[65]        
At the end of 2009, Dr. Termansen was of the view that Ms. Jokhadar
was continuing to struggle with emotional instability, chronic PTSD, and
chronic pain syndrome. He felt that she was unable to return to work and this
had been a serious obstacle to her rehabilitation. Her mood remained unstable
and required constant monitoring.

2010 to Present

[66]        
Ms. Jokhadar saw Dr. Sahjpaul for a follow-up assessment on
January 28, 2010. She reported that there had been no improvement of her
symptoms following the right C6 nerve block. Dr. Sahjpaul recommended
nerve conduction studies to determine whether the symptoms were related to the
impingement of the disc on the nerve root at the C5-6 level. Ms. Jokhadar
was then assessed by a neurologist, Dr. John Stewart. He could not identify
any sensory motor deficit. Following review of Dr. Stewart’s report, Dr. Sahjpaul
expressed the view on March 5, 2010, that Ms. Jokhadar was suffering from
neck pain and right shoulder and arm pain and weakness which were likely a
combination of myofascial pain (pain caused by injury to the soft tissues
surrounding the spine) and discogenic pain (pain caused by impingement of the disc
upon the nerve root).

[67]        
On February 11, 2010, Ms. Jokhadar was again assessed by Dr. Koch.
Ms. Jokhadar has continued to see Dr. Termansen and Dr. Schwarz
on a regular basis to the date of trial.

[68]        
She is now receiving CPP disability benefits. She says she is unable to
work because of the combined effect of her physical limitations and bipolar
illness. She is working on an exercise program at home. She continues to
have pain in the upper shoulder and neck region, occasionally radiating down
her arm.

[69]        
Ms. Jokhadar’s relationship with her husband and her daughters has
been rocky over the last couple of years, but has improved with better
management of her mania. She and her husband have required counselling to understand
her illness and that stress relief, rather than a change in her medication, will
lead to improvement. She has advised Dr. Termansen that she would like to
go back to school when her concentration improves. Her written English is poor.
She has tried to do some upgrading but has had difficulty. She hoped to enter
adult education classes at Capilano University. She is now doing housework again
but no heavy lifting. She teaches her son Arabic. Her lifestyle is relatively
sedentary; she does some light exercise, but her pain has not improved. She
habitually massages her neck and shoulder to ease her pain. She says her
episodes of depression are not as severe as formerly.

[70]        
Ms. Jokhadar’s daughter described in painful detail the psychotic
episodes that resulted in her mother’s hospitalization in 2008 and 2009. She
testified that between these episodes her mother continued to be emotionally
unstable, lost weight, and became depressed. She believes her mother has been working
hard on her recovery in the year since the last Lions Gate admission. She
thinks her mother cannot work as a hairstylist; she is too slow and
unorganized. Her daughter thinks she is now physically better and Dr. Termansen
is helping her a lot, however she says her mother does not engage with her son,
does minimal housework, and is very inefficient.

[71]        
Ms. Sadik has regularly visited Ms. Jokhadar from April 2009
to date. She says Ms. Jokhadar regularly complains that she is tired and
of pain in the shoulder. She cries a lot and appears to be unable to take care
of her family. She has not returned to her former household and social activities.

Expert Opinion

Musculoskeletal Injury

[72]        
Dr. Schwarz has provided primary care. In his report of June 29,
2008, he summarised the progress of the plaintiff’s back and neck injury to
that date. He reported that Ms. Jokhadar had “marked cervical thoracic
muscle weakness and wasting”. She was tender on palpation on the upper back and
upper thoracic and costovertebral joints. After following her progress to early
2010 and reviewing the report from experts and the MRI, Dr. Schwarz concluded:

I believe that the likely cause of the C5-6 findings is the
motor vehicle accident as she does not appear to have had any other significant
injury to which it could be attributed. It may be that the accident caused the
cord compression to become symptomatic.

The relationship between the
accident and the right arm pain is such that I believe that the motor vehicle
accident is the cause of the right arm pain. Whether this can be attributed to
the C5-6 injury or whether the accident caused some other soft tissue injury,
which is not apparent on the MRI, I believe the motor vehicle accident is the
cause of her right-sided neck pain and arm pain.

[73]        
That opinion is consistent with the views expressed by the neurosurgeon,
Dr. Sahjpaul, and the physiatrist, Dr. Adrian. Dr. Sahjpaul is
concerned that the MRI suggests cord compression, but is not convinced that the
plaintiff’s symptoms are entirely or even significantly a result of compression.
While there is some subtle weakness in the plaintiff’s right hand grip strength
and a subjective complaint of weakness in the arm, there is no significant neurological
component to her injury. Dr. Sahjpaul believes the plaintiff’s neck pain
and right shoulder and arm pain and weakness is caused by a combination of a
soft tissue injury and irritation of the nerve root at the C5-6 level. He says
the motor vehicle accident was causative of the plaintiff’s symptoms because
there is no apparent history of significant neck, back or arm pain prior to the
motor vehicle accident; the plaintiff is too young to have primarily
degenerative changes; and change at the C5-C6 is focal and pronounced,
suggesting that it is a result of trauma at that level, rather than degenerative
change. He says there is some prospect that Ms. Jokhadar will require
surgical intervention as a result of the obvious and problematic C5-6
herniation seen on the MRI.

[74]        
In his February 7, 2007, report, Dr. Adrian expressed the opinion
that Ms. Jokhadar was suffering from clinical features consistent with a
diagnosis of mechanical neck, mid-back, and low-back pain. He felt that it was
somewhat unusual for Ms. Jokhadar to have experienced no improvement
several months after her accident. He expected there would be gradual recovery
from those symptoms over a period of perhaps two years.

[75]        
Dr. Adrian’s opinion became more pessimistic over time. In May 2009
he said:

Mrs. Jokhadar will probably
continue to experience difficulty performing activities that place physical
forces on the painful structures involving her neck and back. Specifically, she
will probably continue to experience difficulty performing house work, recreational
and employment activities that require prolonged static or awkward positioning
involving her spinal column, stooping, repetitive twisting, repetitive
reaching, heavy or repetitive lifting or carrying.

[76]        
Dr. Adrian acknowledged Ms. Jokhadar was limited by both
physical and psychological symptoms and that he did not evaluate the latter. He
did not review the patient’s work history to determine whether that history
would reflect her limitations, or whether the limitations were consistent or
progressive. His poor prognosis was based primarily upon the duration of the
persistence of the subjective complaints.

[77]        
After becoming aware of the results of the CT/MRI in March 2010, Dr. Adrian,
in the following words, expressed an opinion very similar to that expressed by Dr. Sahjpaul:

It is possible that the disc
protrusion noted at the C5-C6 level and impingement of the adjacent right C6
spinal nerve root is resulting in atypical spinal nerve symptoms, manifested as
scapula (shoulder blade) pain. Other potential sources for Mrs. Jokhadar’s
right shoulder blade symptoms are referred pain from her neck. Referred pain is
pain that is experienced at a site distant to the source of pain, but not due
to injured nerves.

Depression, Bipolar Disorder and Post-Traumatic Stress Disorder

[78]        
As noted above, the plaintiff has been assessed by a psychologist, Dr. Koch,
who has interviewed her extensively and reviewed the medical records. Ms. Jokhadar
has been treated for some time by Dr. Termansen. He has expressed an
opinion on her condition and prognosis. She has regularly seen Dr. Schwarz
who has monitored her psychiatric care and she has been seen from time to time
by Dr. Abdel-Fattah. She has been assessed at the defendant’s request by Dr. Solomons.

[79]        
There is, of course, a psychiatric diagnosis: Ms. Jokhadar clearly
suffers from a bipolar disorder. She is acutely sensitive to changes in her
medication. She has had difficulty controlling the disorder over time and has greater
difficulty doing so when she is subject to stressors. There is a dispute with
respect to the extent to which Ms. Jokhadar’s mental illness was
aggravated or exacerbated by the 2006 motor vehicle accident as well as the
extent to which she should be able to control her mania with appropriate
medication over the long term.

[80]        
Dr. Koch provided the court with reports dated July 9, 2009, and
March 16, 2010, in which he says Ms. Jokhadar has been disabled from
employment by bipolar disorder with occasional manic episodes, in remission, by
PTSD, and by a specific phobia of motor vehicle travel. He says these
conditions have been triggered by a variety of psychosocial stressors including
marital discord, problems in social support, and the accident. According to Dr. Koch’s
assessment of her symptoms, Ms. Jokhadar does not meet the stringent test
for diagnosis of PTSD. Notwithstanding that fact, Dr. Koch believes that
she demonstrates the symptoms of the disorder and that the diagnosis is
appropriate. In response to the suggestion the trauma was not such as to
generate a significant psychological disorder, he says the relationship between
magnitude of the trauma and PTSD is a modest one. The severity of a patient’s
physical injury is not highly related to the development of PTSD. This patient
related to Dr. Koch that she feared for her life and that upon the
occurrence of the collision she felt her spirit leave her.

[81]        
Her bipolar disorder was considered by Dr. Koch to be a
pre-existing condition, primarily biological in nature, symptoms of which were
triggered and aggravated by the stress caused by the motor vehicle accident in
conjunction with her fears about her foetus. Bipolar disorder is recognized as
a constitutional condition ‑ one that is contributed to by genetic and
personality factors ‑ that causes patients to be affected by cyclical
periods of clinical depression and mania. It is recognized that psychosocial
stressors increase the risk of relapse of periods of depression.

[82]        
During Dr. Koch’s assessment of Ms. Jokhadar on June 1 and June
18, 2009, she was very distractible and severely depressed. She had some
difficulty with self-assessment, but she did not endorse unusual symptoms. This
led him to accept as accurate her description of her then-current symptoms. Dr. Koch
felt that sedatives had contributed to her fatigue and low mood. He concluded
that her fatigue and distractibility were the greatest impediment to returning
to work.

[83]        
At the time of his most recent report in March 2010 Dr. Koch was of
the view that Ms. Jokhadar was primarily disabled by depression, a problem
which has been difficult to treat pharmaceutically because of her underlying
bipolar disorder. She appeared to be more depressed than previously and related
some marital strain. Pending litigation was also recognized by Dr. Koch as
a psychosocial stressor. He recommends that an allowance be made to permit Ms. Jokhadar
to attend 50 hours of psychological therapy, but is of the view that even with
that therapy there is a poor prognosis for the long term.

[84]        
Dr. Termansen, who is the expert most familiar with Ms. Jokhadar’s
condition and treatment, says she is suffering from a rapidly cycling disorder
which will require long term monitoring and intense treatment and supervision. Chronic
neck and shoulder pain limits her ability to work. Inability to work worsens
her depression because work gives her social opportunity and self confidence. Her
prognosis for recovery is therefore guarded. The prognosis worsens with the
number and severity of episodes of depression, as episodes beget each other. He
describes Ms. Jokhadar as being very determined to stay out of hospital
because she has had very difficult mental experiences when psychotic. He has agreed
to see her regularly to prevent such episodes. He is of the view that Ms. Jokhadar
would have been hospitalized twice since 2009 if she had not been actively participating
in the outpatient programme.

[85]        
Dr. Termansen believes she is suffering from PTSD  that is
aggravating her pre-existing bipolar condition:

Comorbid PTSD is associated with
two of the four indices of bipolar severity, namely inter-episodic depression
and quality of life. It is believed that the re-experiencing of the trauma in
the form of intrusive images and nightmares is stressful and increases the
vulnerability to relapse. In summary, there is indeed a correlation between
post-traumatic stress disorder and aggravation of a pre-existing bipolar
condition. The understanding of this correlation is based on the acute stress
of the trauma as well as the ongoing stress of persisting post-traumatic
symptoms precipitating more frequent episodes.

[86]        
Dr. Termansen cautions, however, that Ms. Jokhadar’s fairly
severe psychotic problems make chronic pain and PTSD difficult to assess. His
prognosis is expressed in the following terms:

Given how her illness has
affected her since her accident, my prognosis for the future is very guarded
indeed. It is always difficult to predict what the future may hold but it is my
opinion that her prospect for emotional stability has declined significantly
since the accident. In addition, a significant impairment in emotional, social
and occupational functioning has seriously impaired her role within and outside
the family. It is in [sic] my opinion that the marital and family
situation has become increasingly destabilised and stressful because of Mrs. Jokhadar’s
instability.

[87]        
From his initial examination of Ms. Jokhadar’s records it was clear
to Dr. Termansen that she had a long history of regular mood disturbances
that were symptomatic of bipolar disorder, a spectrum neuropsychological
disorder with its usual age of onset in the late teens. It is difficult for him
to say how severe those disturbances were. While she appears to have been minimally
impaired; he is unaware of any psychiatric disturbance prior to the 2001
hospital admission in Ottawa. He believes her level of functioning at the time
of his involvement to be significantly lower than that prior to the motor
vehicle accident. Dr. Termansen therefore concludes Ms. Jokhadar
could have looked forward to significant stability and that the prognosis for
her mental illness would have been much improved had the accident not occurred.

[88]        
This opinion is, at least in part, based upon Dr. Termansen’s
opinion that if she was significantly impaired Ms. Jokhadar would have
been hospitalized prior to 2006. He was aware in general terms of the 2001
Ottawa admission and says that Ms. Jokhadar described her 2002 manic
episode to him but he knew little of the St. Paul’s admission in 2002. He was
not aware of Ms. Jokhadar’s pre-accident problems at work. He acknowledged
that if she reported anger at work that could have been a symptom of mania. He
acknowledged her pre-accident condition may have been more fragile than he
appreciated.

[89]        
Dr. Termansen was not particularly familiar with Ms. Jokhadar’s
work or her attempts to return to her job. Given that he did not specifically
address the limitations in her physical capacity and knew little of the
physical demands of her job, little weight can be placed on his view that she
is physically incapable of work. He did not know how many hours she had worked
since her 2006-07 pregnancy. It was only on cross-examination that Dr. Termansen
noted that Ms. Jokhadar complained she could not concentrate and her mental
impairment alone would preclude a return to work. In my view that question was
not closely addressed by Dr. Termansen and cannot be regarded as a considered
opinion on her capacity to work.

[90]        
Dr. Schwarz testified with respect to the medications prescribed
for Ms. Jokhadar over the years. He knew that she occasionally refused to
take Seroquel, an antipsychotic prescribed as a mood stabilizer, because it made
her feel lethargic and depressed. He believes that he probably counselled her
on the importance of using her medication as prescribed. Psychotropic drug use
is, however, a hard sell. Antipsychotics make patients feel depressed,
lethargic and hypersomnolent.

[91]        
Dr. Abdel-Fattah, as noted above, considered the symptoms resulting
in the April 2008 and March 2009 hospital admissions to be a result of non-compliance
with drug therapy. He had closely reviewed the medication record and, on that
review, established that for a period in 2008 Ms. Jokhadar was prescribed
gabapentin as a result of a medical error. She appears to have been prescribed
Noroxin (an antibiotic) by a Dr. Heyward on May 5, 2008, and to have
received Neurontin (also known as gabapentin, a drug prescribed for nerve pain)
by mistake. That error was perpetuated when she renewed her prescriptions.

[92]        
Dr. Solomons, a psychiatrist with significant experience treating
patients with mood disorders, including bipolar affective disorders and PTSD, examined
the plaintiff on June 19, 2009, and then prepared a report on July 3, 2009,
summarizing his observations and his review of the records. He prepared a
supplemental report on August 19, 2009, in response to the reports of Dr. Koch
and Dr. Termansen. In his first report, Dr. Solomons expresses the
view that Ms. Jokhadar did not develop any emotional, psychological, or
psychiatric sequelae as a result of the accident. He says:

This view is reinforced by the fact that in the first
reference in her medical records to emotional symptoms, which occurred seven
weeks after the accident, there were no details of her emotional state, nor was
any cause given for her symptoms or state. When details of her emotional state
were first provided, 18 months after the accident, no cause for her condition
was given and no reference to the accident was made. No attribution to any
cause for her emotional state was offered at all, whether to the accident or to
other more compelling factors such as the nature of her long-standing, unstable
psychiatric illness or the ongoing stresses in her relationships, particularly
with members of her family.

Her detailed account at this
assessment of emotional symptoms following the accident is not replicated in
any of her medical records, and this further reinforces my view that she did
not, in fact, develop any psychiatric complications as a result of the
accident.

[93]        
In his report of August 18, 2009, Dr. Solomons disagrees with the
diagnosis of PTSD for the following reasons:

Dr. Koch arrives at the diagnosis of a post-traumatic
stress disorder (PTSD) and an associated motor vehicle phobia without
considering the preconditions for the diagnosis of PTSD which includes a
traumatic event that is severe enough to be life or limb threatening and
response at the time that includes intense fear, helplessness or horror.
Neither of the preconditions was met in the accident. Dr. Koch also
appears to ignore the absence of documentation of any emotional symptoms
following the accident as well as the absence of any exacerbation of her
pre-existing bipolar disorder in the immediate aftermath of the accident.

My reading of Dr. Termansen’s
report reveals a similar ignoring of the nature of the accident that does not
meet the diagnostic criteria for a PTSD diagnosis, as well as a ignoring [sic]
of the absence of the reports of psychiatric symptoms following the accident.
He records in her report that she constantly relives the accident, although no
mention of this is made in her family doctor’s records.

[94]        
Dr. Solomons does not take issue with the diagnosis of bipolar
disorder or its disabling effects on Ms. Jokhadar, but disputes the
diagnosis of PTSD and attributes all of the plaintiff’s bipolar disorder to
biologic as opposed to traumatic factors. His conclusion that Ms. Jokhadar
does not suffer from PTSD is based in part on his characterization of the
accident as a “minor incident” and in part on his understanding that there were
no emotional symptoms following the accident. When he met the plaintiff she
demonstrated composure and showed no signs of psychiatric illness. She was
very engaging and appropriately reactive. He says discussion of the accident is
usually a trigger for emotional reaction in patients with PTSD. Seeing none in
this case was significant to his assessment. He says Ms. Jokhadar didn’t
volunteer any flashbacks and only claimed to be troubled by them when prompted.

[95]        
In cross-examination he acknowledged that the leading diagnostic text,
the DSM-IV, does not describe the nature of the event that must precipitate PTSD.

[96]        
On the question of the emotional impact of the accident, Dr. Solomons
agreed that when he interviewed Ms. Jokhadar she said she thought she was
going to die in the accident and cried recounting it. She told him she was
depressed following the accident and was thinking of death all of the time. He believed
such an emotional response had not been recorded in the post-accident medical
records. For that reason, he concluded that the emotional response is recent
and cannot be regarded as a cause of her depression or a symptom of bipolar
disorder or PTSD. In cross-examination Dr. Solomons was referred to the
October 20, 2006 note that the patient thought she would die at impact and that
she was weeping when recalling the incident. Upon reviewing that record Dr. Solomons
acknowledged the obvious error on his part. He agreed he had been wrong to
reject Ms. Jokhadar’s description of her emotional reaction to the
accident.

[97]        
Further, in coming to his opinion Dr. Solomons ignored or gave no
weight to the fact that the patient’s mood fluctuated after the accident or that
in December 2006 and March 2007 she was referred to Dr. Misri, a psychologist,
for bipolar symptoms.

[98]        
Dr. Solomons says that although there is reference in the GP’s
records to emotional symptoms on March 4, 2008, there is no cause for those
emotional symptoms identified. Dr. Solomons acknowledged on cross
examination that was also incorrect, insofar as the return to work is identified
in the records of Dr. Schwarz as a possible cause. Dr. Solomons also
acknowledged that he was wrong to say that Dr. Pankratz made no reference
to the motor vehicle accident in his records and did not identify the accident
as a contributing cause of emotional problems.

Functional Capacity

[99]        
Ms. Jokhadar has been assessed by Mr. Tim Winter and Ms. Jodi
Fischer; both are occupational therapists and work capacity evaluators. Mr. Winter
saw Ms. Jokhadar at the request of her counsel, on June 9, 2009. Ms. Fischer
saw her on February 2, 2010, for assessment at the request of the defendants. Both
experts prepared detailed and helpful reports and testified at trial.

[100]     When Mr. Winter
examined Ms. Jokhadar she had recently been released from the hospital and
had only recently begun to work with Dr. Termansen. Mr. Winter noted numerous
and significant indicators of inconsistent effort on Ms. Jokhadar. Despite
those indicators of poor performance, he concluded that his evaluation provided
a reasonable functional baseline for assessing Ms. Jokhadar’s physical
capacity. I reject that conclusion. Mr. Winters noted that Ms. Jokhadar
appeared to be relatively fit and there were no indications of deconditioning.
In work-like simulations, however, she demonstrated pain mannerisms, she cried
as she worked and she demonstrated inconsistent and inexplicable limitations.
Questioning demonstrated that Ms. Jokhadar perceived herself as very
functionally disabled, to an extent not borne out on testing.

[101]      Despite
the fact Ms. Jokhadar reported no significant improvement in her physical
condition between June 2009 and February 2010, her performance on testing by Ms. Fischer
was substantially improved. In the interval Ms. Jokhadar had reported some
lightening of her mood. She had remained out of the hospital and on consistent
medication. I regard Mr. Winter’s assessment as having been conducted at
or near a low point in her bipolar disorder, and conclude that it was affected
by poor effort on her part. Mr. Winter’s conclusions stem from testing
limited by subjective complaints of pain, and the patient’s own unreliable description
of the emotional difficulty a return to work would entail.

[102]     Ms. Jokhadar
saw Ms. Fischer eight months after the Winter assessment. She observed
behaviour on the part of Ms. Jokhadar suggestive of significant effort on
her part. She was consistent and competitive, starting tests early and using
enough effort to raise her heart rate. There was no evidence of an attempt to
mislead the examiner by intentional underperformance. To the contrary,
performance on testing was good. Through a series of tests of her tolerance for
work related and household tasks, Ms. Fischer found Ms. Jokhadar to
demonstrate greater tolerance for such tasks than she reported. While Ms. Jokhadar
reported increasing levels of pain as the testing progressed, her performance
levels were maintained. She performed many tests of her physical capacity
within the norms for women of her age.

[103]    
Ms. Fischer concluded:

During testing she demonstrated
sufficient grip strength, reaching, dexterity, handling and strength tolerance
to attempt to resume part time work as a hairdresser. She was able to perform
repetitive and sustained reaching postures associated with the demands of her
job as a hairdresser. Her neck/right upper back region also responded well
under load…There are no difficulties observed during testing with functional
cognition…She was pleasant, sociable and her behaviour was appropriate
throughout testing. There was no emotional response to testing… when engaged
in functional tasks or when reporting increased pain.

[104]    
Ms. Fischer noted that Ms. Jokhadar’s performance on testing
had improved dramatically since the testing by Mr. Winter. Referring to Ms. Jokhadar’s
emotional response to testing by Mr. Winter ‑ the testing was
abandoned after she started crying and performing poorly ‑ she noted that
her mental health status might have affected testing. She observed:

From a physical perspective, work
capacity findings indicate that Ms. Jokhadar demonstrated sufficient
function to manage the physical demands of work as a hairdresser; however
whether she can psychologically manage the demands of this occupation (or other
forms of work) is out of my area of expertise to comment. If psychological
experts determine that she is psychologically fit to return to work, given that
she described fear of failing again and a loss of self esteem, I would
recommend that she receive the support of an occupational therapist with return
to work. Given also low confidence in her physical function and findings of
deconditioning, I am supportive of Mr. Winter’s recommendation for an
active interdisciplinary rehabilitation program to maximize her chances at a
successful and durable return to work.

[105]     The
strength requirement for working as a hairdresser is light. Ms. Fischer says
Ms. Jokhadar has that capacity. She increasingly complained of pain during
the day but that was not accompanied by a significant deterioration in her performance.
Ms. Fischer says Ms. Jokhadar is less disabled than she considers
herself to be.

[106]     Ms. Fischer
does not disagree with the opinions of Dr. Adrian and Dr. Koch that Ms. Jokhadar’s
pain can bring on emotional symptoms that could make her manic and cause her to
be sent to hospital again. She could not dispute that there is a relationship
between returning to work, suffering stress, experiencing pain, and relapsing
into a manic state. She is not qualified to address the extent to which a
psychiatric condition precludes Ms. Jokhadar from returning to work. That
is a psychiatric issue.

Applicable Law

Causation

[107]     The plaintiff
bears the burden of establishing a causal link between the defendant’s
negligence and the onset or worsening of her pain and suffering, loss of
enjoyment of life, and the reduction in her income or income earning capacity.
She must establish, first, that the negligent act caused or materially
contributed to the damage she has sustained and, if she can do so, prove the
measure of damages. The causation case is met by establishing that but for the
negligent act or omission the plaintiff’s injury would not have occurred. The
parties jointly refer the court to the principles enunciated and restated by
the Supreme Court of Canada in Snell v. Farrell, [1990]
2 S.C.R. 311; Athey v. Leonati, [1996] 3 S.C.R. 458;
and Resurfice Corp. v. Hanke, 2007 SCC 7.

[108]     Causation
issues may be difficult in cases where the plaintiff suffers psychiatric
symptoms or chronic pain contributed to by multiple causes. In Maslen v.
Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.), Taylor J.A., considering a
claim for damages arising out of chronic benign pain syndrome, in a frequently
cited passage wrote, at para. 15:

… there may be cases where a
chronic benign pain syndrome will attract damages. That will happen where the
plaintiff’s condition is caused by the defendant and is not something within
her control to prevent. If it is true of a chronic benign pain syndrome, then
it will be true also of other psychologically-caused suffering where the
psychological mechanism, whatever it is, is beyond the plaintiff’s power to
control and was set in motion by the defendant’s fault.

… With respect to the evidence
required in order to meet the onus lying on a plaintiff in such cases, Chief
Justice McEachern (then sitting as a trial judge) in Price v. Kostryba (1982),
70 B.C.L.R. 397 (S.C.), repeating his observations in Butler v. Blaylock
[1981] B.C.J. No. 31 (October 7, 1981, Vancouver B781505 (B.C.S.C.)), put
it thus:

I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly compensated
for any injury or disability caused by a wrongdoer. But no one can expect his
fellow citizen or citizens to compensate him in the absence of convincing
evidence − which could be just his own evidence if the surrounding
circumstances are consistent − that his complaints of pain are true
reflections of a continuing injury.

These principles were recently affirmed by the Court of
Appeal in Mariano v. Campbell, 2010 BCCA 410.

The Crumbling Skull

[109]    
In Zacharias v. Leys, 2005 BCCA 560, a judgment pronounced in the
interval between Athey and Resurfice, our Court of Appeal
addressed the distinction between weighing evidence of causation and
considering evidence going to the measure of damages. The distinction is
important, particularly in cases where the plaintiff is alleged to have had a
“crumbling skull”:

16  The crumbling
skull rule is difficult to apply when there is a chance, but not a certainty,
that the plaintiff would have suffered the harm but for the defendants’
conduct. Major J. addressed this issue in Athey when he wrote, at
paragraph 35, that damages should be adjusted only when there is a
"measurable risk that the pre-existing condition would have detrimentally
affected the plaintiff in the future, regardless of the defendant’s
negligence." Such a risk of harm need not be proved on a balance of
probabilities, which is the appropriate standard for determining past events but
not future ones. Future or hypothetical events should simply be given weight
according to the probability of their occurrence. At paragraph 27, Major J.
wrote that "if there is a 30 percent chance that the plaintiff’s injuries
will worsen, then the damage award may be increased by 30 percent of the
anticipated extra damages to reflect that risk." In the same paragraph, he
went on to say that a future event should be taken into account as long as it
is a "real and substantial possibility and not mere speculation."

[110]     The defendants
must, therefore, if they seek to establish that the plaintiff’s bipolar illness
would have in any event disabled her or reduced her income from employment,
show there was a measurable risk that the pre-existing condition would have
detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence. Contingencies must be taken into account, as the court
noted in Zacharias:

17  Because in Athey the Supreme Court
found that there was no basis for finding a "measurable risk", it is
of limited assistance when applied to cases in which there is not clearly an
absence of a measurable risk. A number of decisions in this Court have
struggled with that issue. In York v. Johnston (1997), 37 B.C.L.R. (3d)
235 (C.A.), the plaintiff suffered a relapse of her multiple sclerosis after a
car accident. Newbury J.A., for the Court, held that it was a "thin
skull" case, but that, nonetheless, it was appropriate to reduce the
plaintiff’s damages in recognition that she might have relapsed anyway. At
paragraph 6, Newbury J.A. contrasted the standards used to assess liability and
damages:

Of course, the judgment as to the
measure of damages is a much more subtle one than that as to causation, not
only because it involves a consideration of mere contingencies as well as
probabilities, but because of the range of results available in the discounting
of the award, as opposed to the "all or nothing" choice that must be
made with respect to causation.

The trial judge reduced the
damages to reflect the risk of relapse that pre-existed the accident. Newbury
J.A. held that the trial judge was entitled to make such a reduction, even
though there was only a weak evidentiary foundation on which to conclude that
the plaintiff would have remained symptom-free for just five years.

[111]     In the
case at bar the plaintiff clearly suffered from a manifest pre-existing
condition that was likely to have affected her whether or not the motor vehicle
accident had occurred. That condition must be taken into account in measuring
damages. Any measurable risk established by the evidence that the pre-existing
condition would have detrimentally affected the plaintiff in the future,
regardless of the defendant’s negligence must be considered: see Pryor v.
Bains (1986), 69 B.C.L.R. 395 (C.A.); T.W.N.A. v. Clarke, 2003
BCCA 670; McKelvie v. Ng, 2001 BCCA 384.

Non-Pecuniary Damages

[112]    
As Russell J. noted in Smusz v. Wolfe Chevrolet Ltd., 2010 BCSC
82:

[85]      The purpose of non-pecuniary damage awards is to
compensate the plaintiff for "pain, suffering, loss of enjoyment of life
and loss of amenities": Jackson v. Lai, 2007 BCSC 1023 at para. 134;
see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, 83
D.L.R. (3d) 452; and Kuskis v. Tin, 2008 BCSC 862 [Kuskis].
While each award must be made with reference to the particular
circumstances and facts of the case, other cases may serve as a guide to assist
the court in arriving at an award that is just and fair to both parties: Kuskis,
at para. 136.

[86]      There are a number of factors that courts must take
into account when assessing this type of claim. Madam Justice Kirkpatrick,
writing for the majority, in Stapley v. Hejslet, 2006 BCCA 34, 263
D.L.R. (4th) 19, outlines the factors to consider, at para. 46:

[46] The inexhaustive list of
common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that
influence an award of non-pecuniary damages includes:

(a)  age of the plaintiff;

(b)  nature of the injury;

(c)  severity and duration of
pain;

(d)  disability;

(e)  emotional suffering; and

(f)  loss or impairment of
life;

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

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

(h)  impairment of physical
and mental abilities;

(i)  loss of lifestyle; and

(j)  the plaintiff’s stoicism (as a factor that should
not, generally speaking, penalize the plaintiff: Giang v. Clayton, Liang and
Zheng, 2005 BCCA 54).

[113]     The
parties have referred to numerous helpful authorities on the quantum on
non-pecuniary damages. I will describe them briefly. In Ashcroft v. Dhaliwal,
2007 BCSC 533, the plaintiff, a 57 year old office administrator/supervisor
suffered soft tissue/musculoskeletal injuries to her low back and neck, with
secondary headache, soft tissue injuries to the left forearm, and a nerve entrapment
of the lateral femoral cutaneous nerve of the thigh. The nerve entrapment
resulted in numbness and pain over the thigh. The medical evidence was that she
had a pre-existing spinal condition that might have become symptomatic (to an
uncertain extent) in 10 to 15 years’ time, but she was otherwise in excellent
health prior to the first of two accidents. As a result of both accidents, the
plaintiff’s life had changed drastically. She was in constant pain and suffered
from clinical depression and from PTSD. Mr. Justice Shaw held that her
essential identity had been taken from her. Her prospects of improvement were
uncertain. Non-pecuniary damages were assessed at $120,000. The case is a
helpful benchmark in assessing moderate injuries with longstanding and
life-changing psychiatric consequences. Mrs. Ashcroft, however, was not
suffering from evident and significant pre-accident psychiatric problems. The
functional impact of her injuries was more significant than the impact of the
injuries suffered by Ms. Jokhadar.

[114]      In Maillet
v. Rosenau, 2006 BCSC 10, a 38 year old trailer park manager suffered a
significant concussion and depression, affecting her concentration and
attention, as well as a musculoligamentous strain of the neck and shoulder
region which caused tightening of the shoulder girdle and thoracic outlet, and
paresthetia in the right arm. Mr. Justice Powers found that the weight of
the evidence supported the plaintiff’s position that her injuries were caused
by the motor vehicle accident, and that she continued to suffer from them and
would do so in the future. Non-pecuniary damages were assessed at $110,000.00.
Again, this was a case of a person not otherwise affected by mental illness and
unlikely to have been disabled but for the accident.

[115]    
In Marois v. Pelech, 2007 BCSC 1969, the plaintiff suffered from
musculo-ligamentous strain to the neck, mid-back, and low back. She went on to
develop a chronic myofascial pain condition involving the upper neck
musculature, mid back and low back. This, in turn, contributed to depression.
Her treating psychiatrist expressed the following opinion, quoted at para. 62:

Ms. Marois has had significant anxiety and depressive
symptoms for over five and a half years. Despite further treatment and the
passage of time, Ms. Marois will likely continue to have anxiety and
depressive symptoms and not return to her premorbid level of emotional
functioning. Ms. Marois will likely continue to be emotionally vulnerable
and at risk of developing PTSD in future if she is exposed to further trauma.

In general, patients who have a
chronic pain disorder for more than two years in duration continue to be
symptomatic. Ms. Marois, however, has had a lessening of her pain during
the past year since she started seeing Dr. Foran and I will defer the
prognosis regarding her physical symptoms to physical medicine specialists. As
long as Ms. Marois has significant pain, anxiety, depression, insomnia,
tinnitus and fatigue she will likely continue to have cognitive difficulties.
Given Ms. Marois’ age and the nature and extent of her physical, cognitive
and emotional difficulties, it is unlikely that she will be able to return to
competitive employment in future.

[116]     Mr. Justice
Smart held that the plaintiff had lived a full and busy life but that had been
lost over the six years following the accident and that her life would continue
to be impacted in the future. After considering the decision of Shaw J. in Ashcroft
he assessed general damages at $130,000.

[117]    
In Shapiro v. Dailey, 2010 BCSC 770, Grauer J. assessed the claim
of a 23 year old student who suffered soft tissue type injuries that developed
into persisting chronic pain syndrome, fibromyalgia, myofascial pain,
anxiety/panic disorder, depressive symptoms, PTSD, thoracic outlet syndrome,
and associated physical, emotional and cognitive difficulties as follows:

[60]      I have considered the authorities to which counsel
referred me, including Dikey v. Samieian, 2008 BCSC 604; Alden v.
Spooner, 2002 BCCA 592, 6 B.C.L.R. (4th) 308; Prince-Wright v. Copeman,
2005 BCSC 1306; La France v. Natt, 2009 BCSC 1147; Pelkinen v. Unrau,
2008 BCSC 375; Whyte v. Morin, 2007 BCSC 1329; Niloufari v. Coumont,
2008 BCSC 816, varied 2009 BCCA 517; and Unger v. Singh, 2000 BCCA 94.

[61]      Each case must, of
course, be assessed on its own facts. Considering all of the circumstances, including
her age at the time of the accident (23), the toll her injuries have taken on
her, and her prospects for the future, I consider Ms. Shapiro’s plight to
be considerably worse than that of, for instance, the older plaintiff in the
recent decision of La France ($80,000) and worse than the older
plaintiff in Prince-Wright ($100,000). I have considered as well the
very recent decision of the Court of Appeal in Poirier v. Aubrey, 2010
BCCA 266, where the 38-year-old plaintiff’s non-pecuniary damages were increased
to $100,000. I assess Ms. Shapiro’s non-pecuniary damages at $110,000.

[118]    
In Smusz, Russell J. described the damages suffered by a 43 year
old woman injured in a motor vehicle accident as follows:

[87]      … She suffered injuries which, although not requiring
more than a brief visit to the hospital, were nonetheless significant. The
medical evidence was mostly consistent: her physical injuries include moderate
right paracentral disc herniation at C3-4 on the right side and moderate
paracentral disc protrusion at C6-7 on the left causing irritation of the left
C7 root; and a bulging lumbar disc irritating the lumbar roots, all of which
result in chronic left-sided neck, arm and low back pain, dizziness and
headaches. She suffered from PTSD, now substantially resolved, but still
suffers from insomnia, occasional nightmares, depression and chronic pain some
three years after the accident.

[88]      The chronic pain caused by the injuries received in
the accident has resulted in depression, no doubt complicated by her difficult
financial situation, but the plaintiff was happy and energetic before the
accident notwithstanding the fact that she had very little money.

[89]      She was able to work in
a job which did not require great skill and which did not pay well but in which
she could have continued for the indefinite future. It gave her some income and
gave her the sense of participating in her family’s finances.

[119]     General
damages were assessed at $100,000.

Loss of Income Earning Capacity

[120]     The leading
British Columbia cases on the assessment of loss of income earning capacity
were recently reviewed by the Court of Appeal in Perren v. Lalari, 2010
BCCA 140. Garson J.A., for the court referring to the decision of the trial
judge, wrote:

[7]        Despite his conclusion that the plaintiff had not
demonstrated a real possibility she would suffer a loss of income, he awarded
the plaintiff damages for loss of earning capacity, in reliance on this Court’s
judgment in Pallos v. Insurance Corp. of British Columbia (1995), 100
B.C.L.R. (2d) 260, 53 B.C.A.C. 310, in which Finch J.A. […] found […] that
the loss of future earning capacity was suffered, even though the plaintiff
continued to earn the same wage from the same employer, as he had before the
accident.

[8]        The trial judge carefully
reviewed the jurisprudence on this point in not only Pallos, but also Steenblok
v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.); Steward v. Berezan, 2007
BCCA 150, 64 B.C.L.R. (4th) 152; Parypa v. Wickware, 1999 BCCA 88, 169
D.L.R. (4th) 661; Chang v. Feng, 2008 BCSC 49, 55 C.C.L.T. (3d) 203; and
Djukic v. Hahn, 2007 BCCA 203, 66 B.C.L.R. (4th) 314, and held that he
could not reconcile the judgments in Steward and Pallos on this
question of whether an award for loss of future earning capacity should be made
in the absence of proof of a substantial possibility of future pecuniary loss.

[121]    
The debate was addressed in the following terms:

[30]      Having reviewed all of these cases, I conclude that
none of them are inconsistent with the basic principles articulated in Athey
v. Leonati, [1996] 3 S.C.R. 458, and Andrews v. Grand & Toy Alberta
Ltd., [1978] 2 S.C.R. 229. These principles are:

1.         A
future or hypothetical possibility will be taken into consideration as long as
it is a real and substantial possibility and not mere speculation [Athey
at para. 27], and

2.         It is
not loss of earnings but, rather, loss of earning capacity for which
compensation must be made [Andrews at 251].

[31]      Furthermore, I conclude that there is no conflict
between Steward and the earlier judgment in Pallos. As mentioned
earlier, Pallos is not authority for the proposition that mere
speculation of future loss of earning capacity is sufficient to justify an
award for damages for loss of future earning capacity.

[32]      A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss. If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown. The former approach will be more useful when the loss is
more easily measurable, as it was in Steenblok. The latter approach will
be more useful when the loss is not as easily measurable, as in Pallos
and Romanchych. A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment. That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a future
loss.

[122]     For the
purposes of this case that is sufficient elucidation of the guiding principles.

Analysis

The Physical Injury

[123]     Liability
for the accident giving rise to this claim has been admitted. The description
of the accident is significant only to the extent that it assists in weighing
the emotional and psychiatric impact of the accident. Having accepted Ms. Jokhadar’s
evidence with respect to what she saw and experienced I conclude the impact
occurred with enough force to cause her physical injuries and produced
sufficient fear to cause her emotional reaction.

[124]     The
defendants say the plaintiff is entitled to non-pecuniary damages to compensate
for a mild to moderate soft tissue injury and special damages relating to
pecuniary losses in the months after the accident but argue that the plaintiff
has not proven any more significant loss.

[125]     The
plaintiff says there is uncontroverted evidence that Ms. Jokhadar has
suffered a soft tissue injury causing back, neck, and arm pain and a disk
protrusion resulting in the prospect that she will develop further neurological
symptoms, as a result of nerve root impingement, and may require neurosurgery.

[126]     I accept
the evidence of Ms. Jokhadar’s treating physicians that she sustained
injury to the musculoligamentous structures of her right neck and shoulder area
and that she now suffers from a disk protrusion at the C5-C6 level that may
become increasingly symptomatic. Dr. Sahjpaul, the witness most qualified
to address the cause and effect of the disc protrusion believes the MRI
suggests some cord compression but is not convinced that the plaintiff’s
symptoms are entirely, or even significantly a result of that cord compression.
I accept his conclusion that the plaintiff has neck pain and right shoulder and
arm pain and weakness which is a combination of a soft tissue injury and some
irritation of the nerve root at the C5-6 level. I further accept his conclusion
that the motor vehicle accident was causative of the plaintiff’s symptoms.

[127]     I find
that since the accident she has suffered mechanical neck, shoulder, mid-back,
and low back pain, weakness, and tenderness. Despite that pain and
weakness, she has demonstrated on examination by her physicians that she has
relatively normal range of motion. Only minimal back muscle wasting has been
noted.

[128]     Ms. Jokhadar
perceives that her persistent back pain limits her ability to engage in tasks
that require prolonged static or awkward positioning, including twisting,
reaching, or stooping. It is noted, however, that Ms. Jokhadar has difficulty
with self-assessment and is prone to overestimate the extent of her disability.

[129]     I accept
the opinion of Dr. Adrian that Ms. Jokhadar will probably continue to
experience difficulty performing activities that place physical forces on the
structures involving her neck and back, but find that Ms. Jokhadar is
limited as much by psychological as by physical symptoms. While her pain has
been chronic there is some indication that with therapy the psychological
component of her symptoms is at least temporarily improving.

[130]     I accept
the evidence of Dr. Adrian and Dr. Sahjpaul that there is a risk that
the C5-6 disc will cause increasing pain over time. Ms. Jokhadar may
require surgical intervention as a result of the obvious and problematic C5-6
herniation seen on the MRI.

Psychiatric Illness

[131]     Ms. Jokhadar
suffers from a bipolar disorder with occasional manic episodes. She is
primarily disabled by depression, which has been difficult to treat
pharmaceutically because she is acutely sensitive to changes in her medication.
I accept Dr. Termansen’s opinion that her emotional, social, and
occupational functioning has been seriously impaired and her marital and family
situation has become increasingly destabilised and stressful because of her
symptoms. She now suffers from a rapidly cycling disorder which will require
long term monitoring and intense treatment and supervision.

[132]     Ms. Jokhadar
has now made some partial recovery from the severe depression and cyclical
mania that affected her in 2008 and 2009. Ms. Jokhadar says that Dr. Termansen’s
counselling resulted in some lifting of her depression. Dr. Termansen
describes her as being very determined to stay out of hospital and has agreed
to see her regularly to prevent recurrent psychotic episodes.

[133]     While Ms. Jokhadar
had a long history of regular mood disturbances prior to the accident she was
clearly less impaired in the period from 2002 to 2006 than she has been in the
years subsequent. From 2006 to date she has been subject to significant stress
due to the motor vehicle accident and the injuries sustained in that accident,
her pregnancy, problems at work and at home arising from pronounced symptoms of
her bipolar disorder, and this litigation. Bipolar patients are sensitive to
stress, and may decompensate easily. Stressful events often precede an episode
of depression or mania. I accept Dr. Termansen’s evidence that Ms. Jokhadar’s
reaction to pregnancy would not have been the same, her bipolar illness would
not have been as pronounced, and the prognosis for her mental illness would
have been much improved had the accident not occurred.

[134]     The
defendants do not dispute the opinion that manic or depressive episodes may be
triggered by a variety of psychosocial stressors. Nor does there appear to be
any question that as individuals have more episodes of depression they become
less emotionally resilient. However the defendants say, relying upon the
opinion of Dr. Solomons, chronic family stresses, non-compliance with
treatment, and a pregnancy all represent more compelling influences on the
course of her chronic psychiatric illness. In doing so the defendants
address the wrong causation question: “which causes are more compelling?”
rather than “but for the accident would the plaintiff have been as ill?”

[135]     Further, there
is no reason, in my view, to regard stressors other than the car accident as
more compelling or predominant. Dr. Solomons, in reaching that conclusion,
ignored clear evidence of the significance of the accident. He erroneously
concluded that Ms. Jokhadar had not described the traumatic effect of the
accident and its emotional consequences to her physicians, or sought
psychiatric help. In cross-examination Dr. Solomons acknowledged
deficiencies in his review of the records and misunderstanding of Ms. Jokhadar’s
history and treatment. While he expressly describes pregnancy as a factor
contributing to the increase in symptoms of bipolar illness he does not
consider the fact that Ms. Jokhadar’s one specific worry during the
pregnancy was the possibility of a miscarriage or birth defect due to the motor
vehicle accident.

[136]     It is not
helpful in the causation analysis to attribute the exacerbation of the
plaintiff’s bipolar disorder to non-compliance with treatment. Although Dr. Abdel-Fattah
and Dr. Schwarz concluded that Ms. Jokhadar had occasionally refused
to take Seroquel, despite counselling on the importance of using her medication
as prescribed, the evidence was that non-compliance occurred because
antipsychotics made her feel depressed, lethargic and hypersomnolent. Ms. Jokhadar’s
reluctance to take antipsychotic medication is not blameworthy conduct but,
rather, an aspect of her pre-existing condition, a factor contributing to her
susceptibility to events destabilizing her bipolar illness.

[137]     I accept
the evidence of Dr. Termansen that the motor vehicle accident precipitated
a prolonged depressive episode which eventually transformed into a manic
episode. I conclude that episodes of mania and depression between 2006-2008
were in part triggered by the motor vehicle accident and in part triggered by
her concern about her foetus, her increased anxiety, her physical injuries, and
difficulty she had returning to work. I accept the evidence of Dr. Koch
and Dr. Termansen that the accident was a significant cause of the worsening
of that illness.

[138]     In the
result, I must turn to a consideration of the contingencies referred to in York
v. Johnston so as to describe the probable course of Ms. Jokhadar’s
bipolar disorder had an accident not occurred and compare that with the
position she now occupies and the future she faces. In doing so I bear in mind
the injunction of Newbury J.A. that “the judgment as to the measure of
damages is a much more subtle one than that as to causation, not only because
it involves a consideration of mere contingencies as well as probabilities, but
because of the range of results available in the discounting of the award”.

[139]     There is
evidence of significant pre-accident symptoms. As Dr. Koch noted, there is
a medical record of complaints of depressive symptoms (particularly low energy
and hypersomnia) throughout the 2001-2006 period and a long history of
intermittent impairment from bipolar episodes. Dr. Termansen acknowledged
on cross-examination that Ms. Jokhadar’s pre-accident condition may have
been more fragile than he appreciated when he drafted his opinion. Speaking of Ms. Jokhadar’s
post-accident course both he and Dr. Koch noted that stressors are
cumulative and that episodes of depression beget each other. The inability to
work worsens Ms. Jokhadar’s depression because work gives her social
opportunity and self confidence. The prognosis worsens with the number and severity
of episodes of depression.

[140]     Ms. Jokhadar’s
symptoms became so pronounced that she required hospitalization in 2001 and
2002. She required close supervision thereafter. When she went off medications
in 2005 she suffered symptoms that disabled her from work. In 2006 she was
complaining of significant continuing symptoms at work, even while on
medications. Ms. Jokhadar learned she was pregnant days after the
accident. She soon began suffering from nausea and vomiting. She stopped taking
antidepressant medication. Given her history, pregnancy certainly contributed
to the difficulty she experienced controlling her bipolar illness. She
would, in any event, have been subject to the stressors associated with that
pregnancy and caring for a newborn. She is likely to have suffered depression
off medication during her pregnancy. According to the psychiatric evidence,
that would have had an impact upon her long-term prognosis. For this reason I
find that even in the absence of the accident Ms. Jokhadar would still have
suffered from increasing symptoms of bipolar disorder after October 2006.

[141]     The
plaintiff claims to have suffered PTSD as a distinct and compensable condition.
The defendant says that the plaintiff does not suffer from PTSD. There is no
question the plaintiff had some complaints of emotional issues after she became
pregnant and leading up to and after the birth of her son. She was shaken up by
the accident, according to the defendant, but there is no mention of her having
flashbacks or of disabling mood fluctuation arising from memories of the
accident. The defendant says PTSD did not become an issue until the plaintiff
engaged Dr. Koch to produce a medical legal report assisting the plaintiff
with her litigation.

[142]     I accept Dr. Koch’s
opinion that the accident, as described to him, was an event capable of causing
post-traumatic stress, particularly in a person affected by bipolar disorder.
The evidence of Drs. Koch and Termansen to the effect that this incident
might have a more pronounced effect upon a person with a mood disorder stands
to reason. Given that Ms. Jokhadar’s own description of her symptoms does
not meet the diagnostic criteria for diagnosis of PTSD, and given the absence
of reported symptoms, for example when she was treated by Dr. Abdel-Fattah,
I cannot find a sufficient basis for Dr. Koch’s opinion that “overall” her
symptoms are consistent with such a diagnosis. There is certainly evidence of
longstanding depression and mood swings, but from these it is difficult to
isolate specific symptoms of PTSD. As Dr. Termansen noted, her fairly
severe psychotic problems make chronic pain and PTSD difficult to assess. Despite
the fact I reject most of Dr. Solomons’ opinion, I share his conclusion
that Ms. Jokhadar’s description of her “flashbacks” is not a description
of that symptom as commonly understood but, rather, a description of an unhappy
recollection, more consistent with depression than PTSD.

Non-Pecuniary Damages

[143]     I turn
then to the functional impact of Ms. Jokhadar’s physical injuries and the
worsening of her bipolar disorder in order to assess damages for pain and
suffering and the loss of enjoyment of life. Although she was working part-time
and her bipolar disorder was less disabling prior to October 2006, Ms. Jokhadar
was complaining of stress at work and was about to learn that she would have to
go off her medication due to her pregnancy. She was suffering from significant
illness that required constant monitoring and medication. She had regularly
missed work in the years between 2002 and 2006. Ms. Jokhadar told Dr. Adrian
that she was working as a hairstylist 4 days per week before her injury and
that she had been employed as a hairstylist since 1996. She claimed to have had
no physical limitations and to have gone swimming and to the gym regularly. She
claimed to have been immediately unable to work due to pain following the
accident. All of these claims overstate the level of her pre-accident activity and
the impact of the accident.

[144]     The
plaintiff says the catastrophic effect of these injuries on her ability to
enjoy the amenities of life exceeds that described in all of the cases referred
to above and seeks an assessment of general damages at $140,000. The defendant
submits that the claim should be qualified as a mild to moderate soft tissue
injury with some special damages awarded for the time the plaintiff would have
needed medical care which was not otherwise paid for by other entities but does
not attempt to quantify the claim.

[145]     The
accident in this case has had a significant effect on Ms. Jokhadar’s life.
I am satisfied on the evidence that she suffered from a significant bipolar
affective disorder that required monitoring and medication prior to the motor
vehicle accident but that that disorder was significantly exacerbated to the
point that she became significantly disabled by her illness from 2006 to 2009.
While she is under reasonable control at the moment, her significant depressive
and manic episodes have made her more prone to relapse. In addition, she has a
physical injury that continues to trouble her and a disk protrusion that may
become more symptomatic in the future. Taking into account the likelihood that
she would to some extent have suffered from increasing symptoms of bipolar
disorder, I am of the view that non-pecuniary damages should be set at $90,000.

Loss of Income and Income Earning Capacity

[146]     Dr. Termansen
says Ms. Jokhadar is no longer working because of her physical and
emotional state. He believes that her current level of functioning is below her
pre-accident state but his view that she is now incapable of working as a
hairdresser appears to be based primarily upon his understanding of her
physical limitations. Although he said, on cross-examination, that Ms. Jokhadar’s
limited ability to concentrate would preclude a return to work, his considered,
written opinion described physical restrictions as the cause of disability,
when he says: “Given her persistent neck and shoulder pain her returning to
work as a hairdresser does not appear likely in the near or distant future.”

[147]     While Dr. Koch
also says that the symptoms of depression he has noted, particularly fatigue
and difficulty concentrating, disable Ms. Jokhadar, he believes return to
work may be possible with some modification of her medication. I accept that
view and regard the potential to return to work as a question that will be
determined primarily by the state of Ms. Jokhadar’s bipolar illness.

[148]     This view
is consistent with the reports and opinions of the occupational therapists,
specifically Ms. Fischer’s conclusion that Ms. Jokhadar demonstrated
sufficient function to manage the physical demands of work as a hairdresser.
The strength requirement for working as a hairdresser is light and I find Ms. Jokhadar
to have that capacity. I accept Ms. Fischer’s conclusion that the critical
question in relation to loss of income-earning capacity is whether Ms. Jokhadar
can psychologically manage the demands of any occupation. Returning to work
will be stressful. If the return is not well managed and gradual she may
experience some increase in her pain and there is a risk of a relapse into a
manic state.

[149]     The
plaintiff says Ms. Jokhadar’s average reported earnings while working as a
hairdresser were $20,452 per annum. The plaintiff says that adding unreported
tips to this income would bring her average earnings to approximately $32,000
per annum. The plaintiff says if she had not been injured, she would have
worked for the entire period between her accident and the date of trial, but
for six months maternity leave following the birth of her son in June 2007. On
this basis she advances a claim for past income loss of $66,875.

[150]     This claim
does not take into account the fact that the plaintiff’s work was inconsistent
in the years leading up to the motor vehicle accident, even when she did not
have a young child at home. It does not take into account Ms. Jokhadar’s
own evidence that she regards hairdressing as an enjoyable pastime rather than
as full time employment. It does not take into account the 2005 flare-up in her
manic symptoms resulting in income in that year being reduced to $9,582, less
than $1,000 per month (excluding tips and EI benefits). Nor does it take into
account the fact that after she returned to work in 2006 she advised Dr. Schwarz
that she was suffering a tremor, a side effect of an antipsychotic.

[151]     Taking
these facts into account and making allowance for the contingency that Ms. Jokhadar
would not have worked while pregnant and off medication, would have taken
maternity leave following the birth of her son, and would, in any event, have
suffered from some periods of depression or mania that would have prevented her
from working in the years since, I assess the plaintiff’s loss of past income over
the period from January 2008 (six months after the birth of her son) to trial,
a period of 30 months, at $30,000.

[152]     The plaintiff
is entitled to interest on that award in 6 month increments assuming the loss
to have been evenly distributed over the period commencing six months after the
birth of her son.

[153]     The
plaintiff’s claim for loss of income earning capacity is based upon the
argument that physical and psychiatric problems now disable her from work as a
hairstylist. The plaintiff says she had 27 years of fruitful income ahead of
her and that her capacity to earn income has been significantly impaired. She
submits that she has lost a greater part of her potential income earning
capacity. That total capacity has been estimated by Mr. Gosling, an
economist called on her behalf at trial, as a claim with a net present value of
$623,803. The plaintiff seeks a loss of earning capacity in the sum $350,000.

[154]     The
plaintiff says it is not clear whether she will ever be fit to return to work
again. Mr. Gosling’s projection of net present value of the loss of income
earning capacity is based on an estimate of lifetime earnings as a hairstylist
to age 65. The claim has been discounted to take into account the factors that limited
the plaintiff’s income earning in the years prior to trial but appears to
include some unearned income in 2006. It has not been discounted to take into
account real and significant prospect that the plaintiff would in any event been
disabled by her bipolar illness. Nor has it been discounted to take into
account the fact that Ms. Jokhadar might be able to return to work either
as a hairstylist or in some other capacity for some or most of the remainder of
her working years. The functional capacity evaluations demonstrate that Ms. Jokhadar
is capable of light work. She should be capable of working in some capacity.

[155]     I accept Dr. Termansen’s
evidence that the prognosis for the future is very guarded and that Ms. Jokhadar’s
chances of enjoying emotional stability have declined significantly since the
accident. I also accept that the effects of the accident are still
reverberating within her life and the total effects are not yet known. I must
also find, however, that Ms. Jokhadar had a poor prognosis for continuous
long-term employment before the accident. The depression and mania leading to
her hospitalization in Ottawa in 2001 and in Vancouver in 2002, had already led
her physicians to conclude she was likely to require long term medication and
close supervision.

[156]     As with
the claim for past income loss, I am of the view that the plaintiff has
overestimated pre-accident income earning capacity. Using multipliers determined
by the plaintiff’s expert economist, Mr. Gosling, assuming she would have
remained employed, despite her illness to age 55 (13,512) and using her 2005
income ($14,517, including EI) as representative of her income earning
potential, the net present value of the whole lifetime stream of earnings before
the accident may fairly have been assessed at approximately $195,000.

[157]     Bearing in
mind the principles referred to above and considering that the motor vehicle
accident has resulted in worsening of the prognosis, but is not the sole factor
leading to the plaintiff’s relatively pessimistic prognosis for long term
future employment, and also taking into account residual income earning
capacity, I am of the view that the claim for loss of future income earning
capacity should be assessed at approximately one third of that estimate of net
present value of the plaintiff’s income earning capacity. After adding an
allowance for lost tips (said to increase income by 50%) I award $95,000 as
compensation under that head of damages.

Special Damages

[158]     Dr. Koch
recommends 50 hours of psychological therapy. I accept that recommendation. An
allowance should be made for ongoing psychological therapy and I award $9,600 in
respect of that claim.

[159]     The
occupational therapists recommend that Ms. Jokhadar receive the support of
an occupational therapist to assist her in returning to work. Given her low
confidence in her physical abilities and the findings of deconditioning, the
experts are supportive of an active interdisciplinary rehabilitation program. Mr. Winters
also recommends continuing vocational consulting and estimates the cost of both
the occupational and vocational consulting at an amount in the range of $10,000.
I award that amount in respect of that head of damages.

[160]     In
addition the parties have agreed to other special damages in the amount of
$500.

[161]     The
plaintiff has certainly received considerable support from her family in
attending to household chores. I find that she is physically able to contribute
to the maintenance of the household but that there has been a reduction in her
capacity to do housework and that the resulting loss is a pecuniary one, for
which damages should be awarded, in accordance with the principles recently
canvassed in Lakhani v. Elliott, 2009 BCSC 1058 at paras. 161-66.
For reasons set out in the assessment of the loss of income earning capacity,
however, I am of the view that the claim under this head must be reduced to
take into account the prospect that the plaintiff would periodically have been
disabled by symptoms of her bipolar disorder in any event and to reflect the
possibility of continuing recovery. I award $15,000 (approximately one third of
the plaintiff’s estimate of the net present value of additional cleaning costs)
under this head of damages.

Judgment

[162]     There will
be judgment for the plaintiff in the following amounts:

“Willcock
J.”