IN
THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Zawadzki v. Calimoso, |
| 2011 BCSC 45 |
Date: 20110118
Docket: M053881
Registry:
Vancouver
Between:
Teddy Tadeusz Zawadzki
Plaintiff
And
Santiago Calimoso
and U-Haul Co. (Canada) Ltd./
U-Haul Co. (Canada
Ltee.)
Defendants
Before:
The Honourable Mr. Justice Voith
Reasons for Judgment
Counsel for the Plaintiff: | Gordon J. Kehler Michael D. Murphy |
Counsel for the Defendant, Santiago Calimoso: | Michael G. Thomas Scott J. Marcinkow |
Counsel for the Defendant, U-Haul Co. (Canada) Ltd./U-Haul | Neal Steinman |
Place and Date of Trial: | Vancouver, B.C. September 13-17, |
Place and Date of Judgment: | Vancouver, B.C. January 18, 2011 |
Table of Contents
B) The Accident and Contributory Negligence
C) Credibility of the Plaintiff
D) The Plaintiff’s pre-Accident Status and
Activities
E) The Impact of the Accident on the Plaintiff
v) Changes
in Activities and Social Interaction
vi) Depression,
Anxiety and Anger
a) Did
the Plaintiff Suffer Cognitive Impairment?
b) What
Gave Rise to Such Impairment?
b) September
2006 to December 2009
A) Overview
[1]
On September 17, 2004, the plaintiff, Mr. Zawadzki, was struck from
behind by a U-Haul truck driven by the defendant Mr. Calimoso. At the
time, he was walking north on 20th Street in New Westminster, British Columbia
(the Accident). Mr. Calimoso denied liability throughout the trial. At
the beginning of closing submissions, liability, subject to Mr. Zawadzkis
potential contributory negligence, was admitted. The various distinct issues
raised in this case are identified in the index found on the first page of
these reasons.
B) The Accident and Contributory Negligence
[2]
At the time of the Accident Mr. Zawadzki worked as an automotive
technician at Dawson Service Ltd. Dawson is located on the west side of 20th Street
in New Westminster. The relevant segment of 20th Street is a two-way street,
divided by a double centerline, which runs in a north/south direction and has
an uphill grade to the north. Importantly, 20th Street is unusually wide. The
average roadway width in a city is 3.0 metres. The lanes travelling in each
direction on 20th Street are 7.4 metres wide. This consists of a traveled lane
which is about 3.1 metres wide and the parking lane which has an approximate
width of 2.2 metres. This means there is a further 2.0 metres or so between the
parking lane and the travelled portion of 20th Street.
[3]
On the day in question, at approximately 11:00 a.m., Mr. Zawadzki crossed
from the west side of 20th Street to the east side. He crossed in a slightly
diagonal direction. It was partly cloudy. The road was dry. He looked both ways
before he crossed 20th Street. He was going to get a TransLink van that was to
be serviced. The TransLink van was the third of three vehicles that had been
parked on the far side of the street facing north. The other two vehicles belonged
to co-workers.
[4]
As Mr. Zawadzki approached the left rear bumper of the first
vehicle he was struck by the U-Haul truck being driven by Mr. Calimoso. Mr. Calimoso
also drove into the rear of that first vehicle. Mr. Zawadzki was thrown
forward about two car lengths. The photos from the Accident scene establish the
considerable force with which Mr. Calimoso struck the first vehicle. That
first vehicle was struck at about the midpoint of its rear bumper. It was
driven into the second vehicle which, in turn, was driven into the TransLink
van. Each of the two cars suffered significant damage.
[5]
A witness to the Accident, Mr. Stanbury, was traveling north behind
the U-Haul truck driven by Mr. Calimoso. He said that the two vehicles
were traveling at between 40 to 50 km/hour. Mr. Stanbury testified that
when the U-Haul truck was approximately 100 feet away from the vehicle it first
struck, it began to drift to the right and that Mr. Calimoso struck that
first vehicle and Mr. Zawadzki without ever applying the brakes.
[6]
What caused Mr. Calimoso to drive as he did is not clear. His
memory was very poor and he had no memory of the events which immediately
preceded the Accident. He admits it is possible that he may have dozed off.
With the admission of liability that has been made there is no need to resolve this
question. Following the Accident, and after telling the attending police
officer that he did not see the plaintiff before he struck him, he was charged
under section 144(1)(a) of the Motor Vehicle Act, R.S.B.C. 1996,
c. 318, with driving without due care and attention. He paid the $368 fine
without objection.
[7]
The defendants argue that Mr. Zawadzki, in crossing 20th Street diagonally
and in walking along 20th Street, parallel to the parked cars rather than on
the sidewalk, contributed to the events which brought about his injury.
[8]
Section 182 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318,
provides:
Pedestrian walking along highway
182(1) If there is a sidewalk that
is reasonably passable on either or both sides of a highway, a pedestrian must
not walk on a roadway.
(2) If there is no sidewalk, a pedestrian walking along or
on a highway must walk only on the extreme left side of the roadway or the
shoulder of the highway, facing traffic approaching from the opposite
direction.
[9]
Section 119(1) of The Motor Vehicle Act defines
"roadway" and "sidewalk" respectively as:
roadway means the portion of
the highway that is improved, designed or ordinarily used for vehicular
traffic, but does not include the shoulder, and if a highway includes 2 or more
separate roadways, the term roadway refers to any one roadway separately and
not to all of them collectively;
sidewalk means the area between
the curb lines or lateral lines of a roadway and the adjacent property lines
improved for the use of pedestrians;
[10]
Section 1 of the Negligence Act, R.S.B.C. 1996, c. 333,
provides for apportionment of liability for damages:
1(1) If by the fault of 2 or more persons damage or loss is
caused to one or more of them, the liability to make good the damage or loss is
in proportion to the degree to which each person was at fault.
(2) Despite subsection (1), if, having regard to all the
circumstances of the case, it is not possible to establish different degrees of
fault, the liability must be apportioned equally.
(3) Nothing in this section
operates to make a person liable for damage or loss to which the persons fault
has not contributed.
[11]
In Bradley v. Bath, 2010 BCCA 10, Mr. Justice Tysoe, for the
court, said:
[25] The concept of contributory negligence was
described in John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC
Information Services, 1998) at 302, as follows:
Contributory negligence is a plaintiffs failure to meet the
standard of care to which he is required to conform for his own protection and
which is a legally contributing cause, together with the defendants default,
in bringing about his injury. The term contributory negligence is
unfortunately not altogether free from ambiguity. In the first place,
negligence is here used in a sense different from that which it bears in
relation to a defendants conduct. It does not necessarily connote conduct
fraught with undue risk to others, but rather failure on the part of the
person injured to take reasonable care of himself in his own interest. …
Secondly, the term contributory might misleadingly suggest that the
plaintiffs negligence, concurring with the defendants, must have contributed
to the accident in the sense of being instrumental in bringing it about.
Actually, it means nothing more than his failure to avoid getting hurt …
[Emphasis in original; footnotes omitted.]
[12]
The apportionment of liability is thus assessed on the basis of fault
and not with reference to degrees of causation. This was discussed by Mr. Justice
Groves in Aberdeen v. Township of Langley, Zanatta, Cassels, 2007 BCSC
993, revd in part, Aberdeen v. Zanatta, 2008 BCCA 420:
[58] The B.C. Court of Appeal
established in Ottosen v. Kasper (1986), 37 C.C.L.T. 270 (B.C.C.A.) that
the apportionment of fault under section 1 of the Negligence Act should
be based on the weight of fault that should be attributed to each of the
parties, not on the weight of causation. Lambert J.A. based this conclusion on
the wording of the Negligence Act, which speaks of fault, and equated
fault with blameworthiness. This approach to apportionment was
subsequently confirmed in [Cempel v. Harrison Hot Springs Hotel 1997),
43 B.C.L.R. (3d) 219 (C.A.)), as follows at ¶ 19:
… The Negligence Act
requires that the apportionment must be made on the basis of the degree
to which each person was at fault. It does not say that the
apportionment should be on the basis of the degree to which each persons fault
caused the damage. So we are not assessing degrees of causation, we are
assessing degrees of fault. In this context, fault means blameworthiness. So
it is a gauge of the amount by which each proximate and effective causative
agent fell short of the standard of care that was required of that person in
all the circumstances.
[59] The relative
blameworthiness approach is therefore quite clearly established as the
appropriate approach to apportionment of damages in British Columbia.
[60] Although assessing the
relative blameworthiness of the parties is the correct approach, there is some
difficulty in quantifying that concept. In this regard, the words of Lambert
J.A. in Cempel, supra, at ¶ 24 are instructive:
In the apportionment of fault there must be an assessment of
the degree of the risk created by each of the parties, including a
consideration of the effect and potential effect of occurrences within the
risk, and including any increment in the risk brought about by their conduct
after the initial risk was created. The fault should then be apportioned on the
basis of the nature and extent of the departure from the respective standards
of care of each of the parties.
[13]
The defendants argue that the plaintiff, in intending to walk parallel
to the parked vehicles on 20th Street rather than on the sidewalk, was partly
at fault for the harm that befell him and should be found contributorily
negligent for 10-15% of the harm that occurred. I say intending because the plaintiff
had only reached the left side of the rear bumper of the rearmost vehicle
before he was struck.
[14]
I do not agree for two distinct reasons. First, leaving aside the
question of whether the lane adjacent to the parking lane on 20th Street
constitutes a roadway within the meaning of s. 119(1) of the Motor
Vehicle Act, it is necessary for the defendants to establish that Mr. Zawadzki
failed to act reasonably. In Bradley, at para. 27, Tysoe
J.A. said that [t]he correct inquiry was to determine whether the plaintiff
failed to take reasonable care for his own safety and whether his failure to do
so was one of the causes of the accident. Reference to the language of Mr. Justice
Lambert in Cempel v. Harrison Hot Springs Hotel (1997), (1998) 43
B.C.L.R. (3d) 219 (C.A.), at para. 24, also places the focus of the
enquiry on the nature and extent of the departure from the respective standards
of care of each of the parties.
[15]
Philip Osborne, The Law of Torts, 3rd ed., (Toronto: Irwin Law,
2004), at 28, states that the reasonable person is a man of ordinary
prudence. Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 8th
ed. (Markham, Ont.; Lexis Nexis Canada, 2006), at 141-42, confirm that the
reasonable person standard is objective and does not require perfection. The
authors further confirm, at page 142, after citing various cases, that the
reasonable person is not a seer, a paragon of circumspection or a person
of infinite resource and sagacity.
[16]
In this case I consider that Mr. Zawadzki acted as a person of
ordinary prudence would. The day was clear and dry. Mr. Zawadzki looked
both ways before he crossed 20th Street. He crossed the street and he then
intended to walk parallel to two parked cars, in a lane of unusual width, to
access the TransLink van. An extraordinarily cautious person may have chosen to
walk to the sidewalk, then parallel to the two cars on the sidewalk and then
back onto the road behind the TransLink van. This, however, is not the
barometer by which Mr. Zawadzkis conduct is to be measured.
[17]
In addition, I am not satisfied that had Mr. Zawadzki taken the
steps the defendants propose, he would have avoided injury. Had he acted as
proposed, he would likely have been behind the first vehicle that was struck by
Mr. Calimoso rather than beside it. This conclusion is supported by the
evidence of Mr. Stanbury who said that Mr. Calimosos U-Haul truck
had been veering right for some distance, the evidence of the plaintiff, the
photos which show where the first vehicle was hit and the visual depictions in Mr. Dinns
report.
C) Credibility of the Plaintiff
[18]
I consider that the plaintiff was, in the main, a truthful person. His
evidence relating to his pre-Accident physical health, his level of social
interaction and his various interests and activities were all supported by
various third parties. Similarly, his evidence relating to the injuries he
suffered in the Accident, the severity of those injuries and of the impact of
those injuries on his post-Accident employment and activity is again supported
by third parties, by much of the documentary evidence and by the expert
evidence of many of the health professionals who testified.
[19]
In addition, the plaintiff was generally responsive to the questions he
was asked. He was understated. Indeed, the difficulties encountered by the
plaintiff subsequent to the Accident were often described more vividly and in
stronger terms by third parties than by the plaintiff. To the extent the
plaintiff’s memory is inconsistent with some of the objective evidence, I
ascribe this largely to the passage of time and to the fact that the plaintiffs
memory of more distant events is unusually poor – a fact identified by number
of the medical witnesses and a matter to which I will return. Thus, for
example, I attribute no particular significance to the fact that Mr. Zawadzkis
memory of when specifically he struggled with what particular difficulty does
not accord with the objective records that exist. Similarly, Mr. Zawadzki often
had no memory of what he said to a particular doctor at a particular meeting.
Invariably, however, he accepted that their notes properly reflected what he
had told them.
[20]
There is a further factor which is relevant. Almost without exception,
the doctors and other health professionals who tested or treated Mr. Zawadzki
for his various physical and cognitive difficulties were of the view that he displayed
serious effort in the tests that were administered and that there was no effort
on his part to skew or embellish their results. While not tied directly to the
issue of credibility, this evidence does provide some insight into an
assessment of who Mr. Zawadzki is.
[21]
There is one area where I do not accept the plaintiffs evidence. This relates
to the level of his post-Accident drinking, the success he has enjoyed at
different times in achieving sobriety and the frequency and consistency of the
advice he was given by friends and health professionals about getting
assistance to address his drinking difficulties. As it relates to these issues,
Mr. Zawadzkis evidence was inconsistent with the evidence of his friends
and his daughter as well as with a significant volume of medical evidence.
While it may be that Mr. Zawadzkis tendency to minimize the severity of
his drinking is a by-product of his current alcoholism, this matters not – his
evidence on these matters was not reliable.
D) The Plaintiff’s pre-Accident Status and
Activities
i) Mr. Zawadzkis Employment
[22]
Mr. Zawadzki is the son of Polish immigrants. He is presently 44
years old. He has a brother and sister. He grew up in Vancouver. He did not
finish high school but instead developed a very early interest in engines and
automobiles. By the time he was in Grade 8, he worked in a motorcycle shop. By Grade
10 he had assembled and built a motorcycle from spare parts. In Grade 11 or 12
he acquired a 1968 Cougar which he rebuilt. Thereafter he built or rebuilt other
motorcycles and classic cars.
[23]
For a few years following high school, he held various part-time and
physical jobs. His first serious job was with Milani Auto Body, doing body work
on cars. He did this work for about five years. When Milani opened a shop that
did mechanical work, he joined that facility. He was originally largely
self-taught but he then took a number of specialized courses and wrote the
exams required to become an automotive technician. He also acquired various
specialized certifications which recognized qualifications in particular areas.
He worked as an automotive technician at Milani for about five years and then
went to work as an automotive technician at Dawson. Mr. Zawadzki had been
working at Dawson for about five years at the time of the Accident. Dawson is a
business that services vehicles and that is owned, in part, by a childhood
friend Mr. Bogusinski. Apart from doing work for individuals, Dawson has
contracts with entities such as the City of Vancouver and TransLink to service
their vehicles. The result of having such contracts is that the mechanics at
Dawson routinely do work on vehicles that can be somewhat larger than the norm.
[24]
Apart from his day-to-day work Mr. Zawadzki also did a significant
amount of mechanical work from his home for his friends. His home had a double
garage – one full side of which was equipped with tools. A number of these
friends confirmed that he had for many years prior to the Accident done the
mechanical work on their cars, on the trucks they used for their businesses, on
their boats and on their recreational vehicles. More than one such friend
confirmed that Mr. Zawadzki could fix anything. In addition, a number of
his friends had owned and still owned older Mustangs, Cougars and Camaros from
the 1960s or 1970s that Mr. Zawadzki helped rebuild and maintain. This
interest in such vehicles was a passion for Mr. Zawadzki and a shared
hobby with various friends.
[25]
While Mr. Zawadzkis various friends may not have been the best
barometer of his skill as a mechanic, the fact that Mr. Bogusinski had
sought to have Mr. Zawadzki come work for him at Dawson for years before
he chose to do so is telling. Mr. Bogusinski also confirmed that there was
only one other senior mechanic at Dawson who matched Mr. Zawadzki’s
competence.
[26]
I find that Mr. Zawadzki was a steady and reliable worker who had
only had a few employers in the 15-year period prior to the Accident. He was
extremely skilled at a job that gave him a considerable amount of satisfaction
and that in his off-hours provided him not only with some supplemental income,
but with a social outlet and an interest shared by a number of close friends.
ii) Music
[27]
Mr. Zawadzki first became interested in music, and in the drums in
particular, in high school. In the years that followed he played with various
bands. When he as about 20 years old Mr. Zawadzki was asked to join a band
called Sacred Blade. The young men in that band took their music seriously and
worked hard at it. While they all held other jobs, they practiced most days.
They had a professional manager. They turned out two CDs which enjoyed some
success in Europe. Their music was played on radio stations and the band was
described in magazines. They played at numerous local clubs and venues and
often introduced better-known bands.
[28]
After about five years, some of the band members went their own way. Mr. Zawadzki
continued to play in various bar bands and with friends. He also formed a new
band called OthyrWorld with a former member from Sacred Blade. Together they
built a new recording studio and created another CD which was completed shortly
before the Accident and which also enjoyed some success in Europe.
[29]
A number of Mr. Zawadzkis friends spoke about his competence as a
musician. While some of these witnesses lacked the formal skills to address his
competence in a technical sense, they were able to address the importance of
music to Mr. Zawadzki and the significant part that it played in his life.
Other former band members did, however, confirm that Mr. Zawadzki was a
very able musician and that he was the best drummer they had played with. Mr. Zawadzki
described himself as an accomplished musician. I consider this an apt and
fair description. While Mr. Zawadzki played less often in the years prior
to the Accident, I find that his skill as a drummer was an ongoing source of
pride and pleasure for him. It also served as an important platform for social
interaction with friends.
iii) Activities
[30]
Mr. Zawadzki was an unusually active man. In his younger years, he
played competitive team sports and, in particular, soccer. In the years prior
to the Accident, he regularly played golf and had about an eight handicap. In
the summer, he went boating on most long weekends and on every other weekend
that he could. He went camping regularly with his friends. He had an interest
in dirt bikes which he shared with some friends and which he also routinely
engaged in. Mr. Larson said that he and Mr. Zawadzki would bike
locally a few dozen times a year.
[31]
Mr. Zawadzki has a daughter, Amanda, who is now 17, and who he has
had sole custody of since she was about seven years old. In the years prior to
the Accident he would bike with her and go to the park. She had belonged to a
track club and he regularly attended her events. By all accounts he was a good
father.
[32]
In argument, the defendants sought to assert that the foregoing description
of Mr. Zawadzki, which was provided by the plaintiff and supported in the
evidence of numerous witnesses, was somewhat over-stated. In the main, there
was little or no cross-examination of these witnesses and I accept the evidence
that they and Mr. Zawadzki gave.
iv) Personality
[33]
Mr. Zawadzki was consistently described by multiple witnesses as a
positive, extremely outgoing and social individual. This description came from
childhood friends, from friends he had met in his later teens and 20s and from
people who he had met in the year or two before the Accident. Mr. Zawadzki
had a wide circle of friends that he interacted with very regularly. In the
period before the Accident, he still saw his childhood friend Mr. Larson a
few times a week, Mr. Buljan weekly or biweekly and Mr. Coles six
to eight times a month. He saw Ms. Zarazun and her husband "every
two weeks or so" and would regularly come over for dinner. Mr. Zawadzki
had friends with whom he shared an interest in cars, in music and in various
activities. While there was some overlap in these groups, the breadth of his
interests caused him to have a wide circle of friends.
[34]
Apart from being a single father, Mr. Zawadzki, until relatively
recently, also cared for his own father. He had moved into his fathers home
when his mother died in 2000. He maintained his home and garden. He was neat
and careful about his personal grooming and appearance. He was unusually
meticulous about his tools and in fact was teased about this by friends.
[35]
While Mr. Zawadzki went through a difficult breakup with his
common-law wife in the mid-1990s and once went to the hospital with a panic
attack in 1995, with there being some further reference to depression in the medical
records, he was, I find, a well balanced and positive person. He had no
reported ongoing health issues. His ability to balance his personal and
professional obligations was impressive as was the enthusiasm and energy with
which he approached his various interests.
v) Alcohol Consumption
[36]
Both Mr. Zawadzkis mother and father had a history of difficulty
with alcohol. Neither his brother nor sister do. There is no doubt that shortly
after the Accident Mr. Zawadzki began drinking heavily. The question is
whether Mr. Zawadzki struggled with alcohol prior to the Accident.
[37]
There are two principal bodies of evidence that are at odds with each
other. On the one hand, a significant number of witnesses, who knew Mr. Zawadzki
extremely well and who interacted with him in multiple settings on a regular
basis, uniformly confirmed that Mr. Zawadzki did not drink excessively
before the Accident. He would, as did his friends, have a few beers when
camping, at a barbecue, a restaurant or a golf game. No friend had any concern
about his drinking or saw him drink excessively. Mr. Coles said the
plaintiff would sometimes actually drink water when his friends ordered a beer.
Mr. Bogusinski, his friend and employer, testified that on Fridays, when
some of the workers went for a drink after work, Mr. Zawadzki would not go,
but instead left to get his daughter at day care.
[38]
There is a note in a hospital record from 1995, when the plaintiff had
his panic attack, which records that someone, likely Mr. Zawadzki,
indicated heavy drinking in the previous two years. Dr. Jeanette Smith, the
psychiatrist called by the defendants, confirmed that her review of the medical
records from 1995-2004 revealed nothing that would indicate or support a
history of alcohol abuse during this period. She did note that Mr. Zawadzki
once received a 24-hour roadside suspension in 2000, which she viewed as a
potential red flag.
[39]
On the other hand, Mr. Zawadzki had three brain scans taken within
a year or two following August 2007, at which time he was admitted to Eagle
Ridge Hospital after having suffered a seizure that was attributed to alcohol
withdrawal. That first brain scan bears the note diffuse cerebral and
cerebellar tissue loss of uncertain etiology. The narrative summary from one
of the physicians who treated Mr. Zawadzki stated Mr. Zawadzki had a
CT scan showing more cerebral atrophy than what would be expected for his very
young age. I suspect his alcohol abuse has been long-standing.
[40]
A further CT scan taken at Richmond General Hospital in December 2007,
however, stated: the ventricles are normal in size. There is no mass or other
focal parenchymal abnormality….
[41]
The final CT scan done at the Royal Columbian Hospital in 2009 again indicated
diffuse cerebral volume loss consistent with the earlier CT scan done in August
2007. The atrophy is noted as being unusual for the patients age.
[42]
The consistent evidence from each of Dr. Phillip Teal, a
neurologist, and Drs. Smith and Fred Shane, who are psychiatrists, is that
there are several potential reasons for such cerebral atrophy. One such reason,
for example, is Alzheimers disease. Absent such diseases, however, cerebral
loss is generally attributed to sustained excessive drinking. Sustained was
repeatedly described as being a period in excess of a decade. In one study
referred to in evidence, such sustained drinking was, on average, a 13 year
period. The word excessive was not defined by the expert witnesses nor was it
given any context in the literature that was made part of the evidence.
[43]
The difficulty is that these scans are imprecise and reflect general norms.
The imprecision in the scans is reflected in the fact that the December 2007
scan was originally interpreted as providing a normal result. Dr. Teal, who
is qualified to read such scans and who did in fact review all three scans,
opined that the middle scan also revealed some abnormality. Nevertheless, he
agreed that the scans provide an eyeball interpretation and that some ballparking
is involved. The results of the scans can, in part, be the product of different
angles or different cuts. Dr. Smith agreed that the exercise was one of ballparking
and was not very specific. She further acknowledged, though she was clearly
aware of the CT scans, that it was possible Mr. Zawadzki had not abused
alcohol during the previous 10 year period. Indeed, her supplemental report,
only raises the prospect of Mr. Zawadzki drinking during this period as a
possibility that cannot be excluded.
[44]
The fact that the CT scans only provide a likelihood of sustained heavy
drinking was dealt with by Dr. Shane. He conceded that the likely cause
of cerebral atrophy was likely alcohol. He said, however, that there were
people who fell outside of the averages. These were outliers. He also said
that the intensity of use could affect results though these too would be outliers.
An outlier is defined in Collins English Dictionary, Canadian Edition,
2005, as a person, thing, or part situated away from a main or related body.
[45]
The defendants sought to explain the body of evidence given by Mr. Zawadzkis
friends and co-workers in two ways. First, it was argued that these witnesses,
and hence Mr. Zawadzki, actually drank more than they had acknowledged. I
do not consider that this is open to the defendants. These witnesses were
either not cross-examined at all or only cross-examined very briefly. Overwhelmingly,
their evidence about their drinking patterns or Mr. Zawadzkis drinking
was not tested or challenged.
[46]
The rule in Browne v. Dunn (1893), 6 R. 67 (H.L.) generally
requires a cross-examiner to give a witness notice of an intention to impeach the
witnesss credibility so that the witness has an opportunity to provide a fair
answer or response to the impeachment: R. v. Lyttle, 2004 SCC 5 at paras. 64-65,
[2004] 1 S.C.R. 193. The purpose of the rule is to accord fairness to witnesses
and to the parties. I do not suggest that it is an absolute rule or that the
rule goes so far as to attach a presumption of truth to the testimony of
witnesses not subject to cross-examination. This is particularly so in cases
where the evidence that has not been cross-examined is inconsistent with other
evidence: R. v. Mete (1971), [1973] 3 W.W.R. 709 at 712-713 (B.C.C.A.).
[47]
I do not consider that it is appropriate, however, to allow evidence
from multiple witnesses, on a central issue in the case, to go largely unchallenged
and then to assert in argument that the witnesses were not forthright about
their drinking habits or those of Mr. Zawadzki.
[48]
I would also say that these various witnesses were straightforward and
generally were impressive people. They were stable individuals who had families
and who had either held long-term employment or had established small
businesses.
[49]
The second suggestion was that Mr. Zawadzki hid his drinking from
his friends. This suggestion suffers from several difficulties. The first is
the closeness of many of the relationships the plaintiff had with his friends.
They not only played music together or worked on cars or had dinner, but they had
also for many years gone camping and boating together on weekends or long
weekends. For example, the summer prior to the Accident Mr. Zawadzki went
to the Merritt Music Festival for a week with Mr. Bevelaqua. Mr. Zawadzki
was also a roommate of each of Mr. Chan and Mr. Larsen for extended
periods during the time period that the CT scans would suggest that he was
drinking excessively. It is hard to imagine that Mr. Zawadzki could have
hidden his drinking in such circumstances from all of these people.
[50]
This conclusion is bolstered by the fact that many of these same witnesses
were acutely aware that Mr. Zawadzki drank excessively after the Accident.
If Mr. Zawadzki hid his earlier drinking, he became markedly less adroit
at such deception after the Accident. Mr. Zawadzki admitted that when he
returned to work at Dawson after the Accident some co-workers said he smelled
like he had been drinking. Mr. Bevelaqua said that within two or three
months of the Accident the plaintiff was consuming more alcohol. Mr. Coles
said that a year or two after the Accident Mr. Zawadzki drove to his cabin
and was intoxicated. Mr. Cole knew there was a problem and spoke to the plaintiff
about this. He described Mr. Zawadzkis alcohol consumption as a very big
problem and confirmed that he had definitely not seen such behaviour before
the Accident. Mr. Faruki gave evidence of the plaintiff coming to work in
the morning smelling of alcohol. Mr. Buljan reported that the plaintiff
showed up at work drunk and that he hid his alcohol in his water bottle. Even
the plaintiffs daughter, at the age of 14, in 2007 when the plaintiff was
hospitalized, reported that her father pours booze into H2O bottles
so she has no idea of what or how much he drinks. The hospital records also
indicate that Amanda reported that her fathers alcohol consumption was much
higher than he acknowledged. Most of these people also testified that they had
repeatedly spoken to the plaintiff about his excessive drinking and about the
need for him to get help.
[51]
Still further, whatever the level of the plaintiffs alcohol consumption
before the Accident, it is clear that it was dramatically different thereafter
– a point to which I will return. He was hospitalized on several occasions for
seizures and alcohol withdrawal. There are multiple blood tests commencing in
December 2004 which show significantly elevated levels of certain liver enzymes
which are directly related to alcohol consumption. Such evidence is completely
absent in the extended period which preceded the Accident.
[52]
Finally, each of Dr. Smith and Dr. Shane, who again were aware
of the CT scans and their likely significance, nevertheless attributed Mr. Zawadzkis
alcohol abuse to the Accident. Dr. Smith said:
…On the basis of the available
information, it would appear that he began to abuse alcohol in an attempt to
self medicate pain and dysphoria that followed the September 2004 accident and
therefore it seems likely that the accident and the physical injuries played a
major role in fueling his subsequent alcohol abuse problem.
[53]
Dr. Shane opined that the accident precipitated…abuse of alcohol
to minimize the pain….
[54]
Based on the foregoing considerations and notwithstanding the CT scans
to which I have referred, I find that Mr. Zawadzki did not drink in a
sustained or excessive manner in the decade which preceded the Accident.
Instead, I find that he drank socially at the level he described and, as
importantly, at the level described by the witnesses to which I have referred.
I also find that he consistently functioned at a very high level. He was
attentive to his family. He did not miss work and he engaged on an ongoing
basis in the various activities I described earlier.
E) The Impact of the Accident on the
Plaintiff
[55]
Following the Accident, Mr. Zawadzki was taken to Royal Columbian
Hospital by ambulance. He was held there for several days. He complained of
pain in his elbow, lower back, knee, ribs, shoulder and right wrist. He repeated
these complaints when he first saw his family doctors locum on September 21,
2004. A review of photos taken some 6-8 weeks after the Accident reveals that
his face was still bruised and scraped. His right wrist and hand were still
very swollen. Nevertheless, Mr. Zawadzki acknowledges that over the next
several months the pain in his knee, ribs and wrist resolved. The pain in his
shoulder took a little longer but it too is fully resolved. Mr. Zawadzki asserts
that he continues to suffer elbow, lower back and headache pain as a result of
the Accident. He also says the quality of his sleep has markedly deteriorated, that
he is depressed and anxious and that he has undergone various personality
changes.
i) Elbow
[56]
It is clear that the plaintiff suffered a serious elbow injury as a
result of the Accident. The plaintiff required three surgical procedures: the
initial procedure in September 2004, a further procedure in May 2005 and one in
October 2005. The latter two surgeries were necessitated because of the level
of pain the plaintiff was suffering and to remove some of the apparatus and
screws that had been placed in the first surgery as well as to remove some of
the surgical scarring. The plaintiff has a permanent partial disability arising
from his elbow injury, as assessed by the Workers Compensation Board (WCB). A
part of his disability award is in recognition of the chronic pain with which he
struggles. The plaintiff did not work for more than a year and a half after the
Accident as a result of this injury.
[57]
Dr. John Le Nobel, a specialist in physical medicine and
rehabilitation, provided the following opinion on which he was not
cross-examined:
He suffered from a severe injury
to his right elbow with an intra-articular fracture at the elbow joint,
requiring emergency treatment with open reduction and internal fixation. This
was carried out in a referral university hospital setting by an expert surgeon
in a timely manner. In spite of this he has suffered ongoing problems and has
required two further surgical procedures,, one to remove some of the fixation
apparatus and a second to remove the remainder of the fixation apparatus, as
well as to remove scar tissue from his elbow joint. In spite of the surgical
procedures and in spite of several courses of physiotherapy and in spite of the
passage of almost four years, Ted Zawadzki continues to have pain and restricted
movement, intermittent locking and loss of function regarding his right elbow.
He is, I believe, at risk for further deterioration in his elbow with
development of post traumatic degeneration or post traumatic osteoarthiritis at
the elbow.
[58]
Dr. Michael Piper, an orthopaedic surgeon called by the defendants,
said the plaintiff had significantly limited range of motion in the right
elbow with a fixed flexion deformity of 30 degrees and was only able to flex
to 110 degrees. A full range of motion is 0 to 150 degrees. Dr. Piper
also noted weakness in the right arm in the triceps. Dr. Piper provided a
second report, after having ordered further x-rays, in which he said: these
x-rays certainly do show evidence of an early degenerative process, undoubtedly
as a result of a traumatic episode. He further identified …early osteophyte
change in discrete areas of the elbow. Thereafter Dr. Piper accepted the
following propositions in cross-examination:
a) the
natural progression for osteoarthritis is further deterioration over time;
b) such
further deterioration is likely to cause further restriction and pain;
c) it can
also cause the elbow to feel as though it is giving way or locking and to
feelings of stiffness;
d) the presence
of osteophytes, in itself, can cause pain;
e) in this
case there was damage to the cartilage in the elbow joint;
f) such
cartilage damage, which can cause bones to rub and create friction, is painful;
and
g) aching of the arm at night
or at rest can be a symptom of arthritis.
[59]
These admissions were also consistent with the evidence of Dr. Le
Nobel.
[60]
The defendants have argued that the plaintiff has overstated the pain and
restrictions associated with his elbow injury. I do not accept this. It is not
consistent with the objective restrictions the plaintiff suffers from, the
evidence of third parties who saw Mr. Zawadzki labour with his elbow pain
in various settings or the evidence of the health professionals, including both
occupational therapists, who gave evidence. I find that the plaintiff suffers
from significant ongoing pain, from a permanent loss of range of motion, from
occasional locking of his elbow and from a permanent loss of function in the
use of his right elbow. The issue of whether Mr. Zawadzki has acted
reasonably to mitigate his pain is a separate question.
ii) Back Pain
[61]
Mr. Zawadzki was involved in two earlier car accidents in 1990 and
1997 which injured his lower back and, for a period of time, required treatment.
From 1997 to September 2004, there is only one record of the plaintiff seeking
assistance for his back. This occurred in January 2003 when Mr. Zawadzki was
prescribed some muscle relaxants. Dr. Piper agreed that the number of
pills given to Mr. Zawadzki was consistent with a minor difficulty which
the prescribing physician expected to resolve quickly.
[62]
Mr. Zawadzki conceded that prior to the Accident his lower back would,
from time to time, be stiff when he was bent over an engine for an extended
period of time. He said this was a minor concern which abated quickly and did
not affect him. I accept this evidence. It is consistent with the absence of
records of Mr. Zawadzki seeking treatment, with the evidence of Mr. Bogusinski
that Mr. Zawadzki never missed work while at Dawson and with the range of
physical activities such as golf, dirt biking and boating that Mr. Zawadzki
consistently engaged in without difficulty or restriction.
[63]
I have said that Mr. Zawadzki complained of lower back pain at the time
of the Accident and immediately thereafter. He says he continued to suffer from
lower back pain thereafter. The objective evidence is not consistent with this
and I believe that Mr. Zawadzki is mistaken. In the months which followed
the Accident, Mr. Zawadzki saw his family doctor several times. There is
no record of Mr. Zawadzki complaining of back pain. Mr. Zawadzki started
a program of intensive physiotherapy in January 2005. There is no record of his
complaining of back pain or of any exercise program having been established to
address a lower back injury. His physical assessment and his early progress
reports as well as his first discharge assessment did not refer to lower back
pain. There is brief reference to significant back pain in physiotherapy
records from March 2005. Mr. Zawadzki returned for a second session of
physiotherapy in November 2005. In the intervening period, Mr. Zawadzki had
tried without success to return to work and had further elbow surgery. By
January 2006, Mr. Zawadzki was, on a consistent basis, reporting
significant back pain. Such back pain appears to have thereafter been a regular
part of Mr. Zawadzkis daily life. Documents from the WCB indicate that by
March 2006, the board had denied Mr. Zawadzkis claim in relation to his
lower back. I raise this because at some point in advance of this date a claim
on behalf of Mr. Zawadzki had clearly been submitted to the Board. The
precise date of that claim is not clear to me.
[64]
Mr. Zawadzki has advised the various doctors he has seen that the
nature of his back pain is inconsistent. This is the evidence he gave at trial.
There are days, or sometimes weeks, where he has little pain. They are often
times he has a significant pain. Periodically his pain is extreme. For many
years, he has not at times been able to sleep in his bed but is required to
sleep on the floor or on a couch.
[65]
I accept this description of the frequency and severity of his back
pain. It is consistent with various notes from his physiotherapist, with
descriptions from his friends who have seen him at work or trying to play golf,
with the reports and testing undertaken by the rehabilitation consultants and
with the evidence of his daughter.
[66]
The issue is whether the Accident caused his lower back pain. Both
parties agreed on the legal principles at issue. In Athey v. Leonati,
[1996] 3 S.C.R. 458, Mr. Justice Major, for the court, said:
[13] Causation is established where the plaintiff proves
to the civil standard on a balance of probabilities that the defendant caused
or contributed to the injury: Snell v. Farrell, [1990] 2 S.C.R. 311; McGhee
v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.).
[14] The general, but not
conclusive, test for causation is the but for test, which requires the
plaintiff to show that the injury would not have occurred but for the
negligence of the defendant: Horsley v. MacLaren, [1972] S.C.R. 441.
The question is largely one of evidence and what
conclusions can be drawn from the evidence.
[67]
Dr. Le Nobel has opined that the plaintiffs ongoing back pain was
caused by the Accident. This opinion appears to be grounded on the erroneous
premise that the plaintiff suffered from lower back pain continuously, albeit
on an episodic basis, after the Accident. In Parwani v. Sekhon, 2009 BCSC
1280 and coincidentally in relation to another opinion rendered by Dr. Le Nobel,
Madam Justice Ross said:
[123] With respect to Dr. Le
Nobels opinion, which is to the contrary, I note that it was based in large
part on Mr. Parwanis self report. Dr. Le Nobel concludes that Mr. Parwani
has remained symptomatic since the accident. However, that observation is not
consistent with the pattern of Mr. Parwanis visits to his treating
physician and with his complaints, and more particularly, lack thereof. Nor is
it consistent with the history given in the Final Assessment at KARP [a
rehabilitation centre]. The suggestion that problems associated with the left
knee related to the motor vehicle accident are belied by the absence of
contemporaneous complaints of knee pain and the absence of any report of knee
pain after December 2005.
[68]
Both these comments and the reasoning which underlies them are
applicable to this case. Accordingly, I have not relied on or accepted the
opinion of Dr. Le Nobel on this issue.
[69]
Both occupational therapists, Ms. Mary Richardson and Mr. Michael
Smith, repeatedly noted that as a result of his elbow injury, Mr. Zawadzki
used compensatory or asymmetrical movements in various activities which, in
turn, impacted on his back. The following comments from Ms. Richardsons
report are illustrative of this point:
Reaching. Mr. Zawadzkis range of motion for
reaching was reduced in his right upper extremity because of minor restrictions
in shoulder mobility and because of limited elbow flexion and extension. Thus,
when reaching with his right arm, he used compensatory trunk movements such as
twisting or bending in order to maximize his reach. …
…
Strength. …When lifting, carrying, pushing or
pulling, he tended to use asymmetrical postures. He kept his right arm tucked
in by his side and applied more force or carried more weight with his left arm.
He reported back pain with repetitive bending to lift from floor level and
right elbow pain with reaching to lift loads overhead.
…
Pushing and Pulling. … Based
on results of strength testing, Mr. Zawadzki has the potential to perform
limited, light, medium and heavy strength work as defined in the NOC [National
Occupational Classification]. However, his use of asymmetrical techniques
when lifting, his reduced tolerance for pushing loads with his right arm and
his reduced tolerance for bending and reaching overhead would impact his
ability to perform functional tasks in the workplace.
[70]
Mr. Smith, in his report and in his evidence at trial, also
accepted that the nature of Mr. Zawadzkis compensatory physical
movements, arising from his elbow injury, give rise to asymmetrical activity
which, in turn, can cause lower back pain. By way of example, Mr. Smith
related the plaintiffs low back pain to asymmetrical carrying. Mr. Smith
also noted the plaintiff reporting that repetitive/sustained outer range
forward reaching or overhead work using his right upper extremity would lead to
elevated low back and/or right elbow symptoms.
[71]
Recognizing that it does not constitute opinion evidence upon which I
can rely, a WCB report from March 10, 2006 nevertheless provides context for the
Boards internal decision and states:
Mr. Zawadzkis back
complaints were reviewed for compensable consideration. The Case Manager has
not accepted them as part of the compensable injury. It is thought the back
problems may be due to the fact that Mr. Zawadzki is overcompensating
when/if he lifts beyond his limitation of Medium strength demands.
[72]
No physicians report directly addresses the relevance of such
compensatory or asymmetrical activity to Mr. Zawadzkis lower back pain. Dr. Piper
conceded that Mr. Zawadzki may be suffering mechanical back pain but did
not relate this to the Accident.
[73]
In Snell v. Farrell, [1990] 2 S.C.R. 311 at 328, Mr. Justice
Sopinka, for the court, confirmed that causation need not be determined with
scientific precision and that in given cases an inference of causation can be
drawn. Specifically, Sopinka J. said at 330-331 and 336:
The legal or ultimate burden remains with the plaintiff, but
in the absence of evidence to the contrary adduced by the defendant, an
inference of causation may be drawn although positive or scientific proof of
causation has not been adduced. If some evidence to the contrary is adduced by
the defendant, the trial judge is entitled to take account of Lord Mansfields
famous precept. This is, I believe, what Lord Bridge had in mind in [Wilsher
v. Essex Area Health Authority, [1988] 2 W.L.R. 557, revg [1987] 2 W.L.R.
425] when he referred to a robust and pragmatic approach to the…facts (p.
569).
It is not therefore essential that the medical experts
provide a firm opinion supporting the plaintiffs theory of causation. Medical
experts ordinarily determine causation in terms of certainties whereas a lesser
standard is demanded by the law. As pointed out in Louisell, Medical
Malpractice, vol. 3, the phrase in your opinion with a reasonable degree
of medical certainty, which is the standard form of question to a medical
expert, is often misunderstood. The author explains, at p. 25-57, that:
Many doctors do not understand the phrase … as they
usually deal in certainties that are 100% sure, whereas reasonable
certainties which the law requires need only be more probably so, i.e., 51%.
In Harvey, Medical Malpractice (1973), the learned
author states at p. 169:
Some courts have assumed an unrealistic posture in requiring
that the medical expert state conclusively that a certain act caused a given
result. Medical testimony does not lend itself to precise conclusions because
medicine is not an exact science.
The respective functions of the
trier of fact and the expert witness are distinguished by Brennan J. of the
United States Supreme Court in the following passage in Sentilles v.
Inter-Caribbean Shipping Corp., 361 U.S. 107 (1959), at pp. 109-10:
The jurys power to draw the inference that the aggravation
of petitioners tubercular condition, evident so shortly after the accident,
was in fact caused by that accident, was not impaired by the failure of any
medical witness to testify that it was in fact the cause. Neither can it be
impaired by the lack of medical unanimity as to the respective likelihood of
the potential causes of the aggravation, or by the fact that other potential
causes of the aggravation existed and were not conclusively negated by the
proofs. The matter does not turn on the use of a particular form of words by
the physicians in giving their testimony. The members of the jury, not the
medical witnesses, were sworn to make a legal determination of the question of
causation. They were entitled to take all the circumstances, including the
medical testimony, into consideration.
…
I am confident that had the trial
judge not stated that I cannot go beyond this since neither doctor did and I
should not speculate, he would have drawn the necessary inference. In stating
the above, he failed to appreciate that it is not essential to have a positive
medical opinion to support a finding of causation. Furthermore, it is not
speculation but the application of common sense to draw such an inference
where, as here, the circumstances, other than a positive medical opinion,
permit.
[74]
Chief Justice McLachlins comments in Resurfice Corp. v. Hanke,
2007 SCC 7, [2007] 1 S.C.R. 333, are also relevant. In Resurfice at para. 9
[cited to SCC], McLachlin C.J.C. relies on R. v. Mohan, [1994] 2 S.C.R.
9 at 23, which in turn relies on R. v. Abbey, [1982] 2 S.C.R. 24 at 42, to
set out when an expert opinion is necessary:
With respect to matters calling
for special knowledge, an expert in the field may draw inferences and state his
opinion. An experts function is precisely this: to provide the judge and jury
with a ready-made inference which the judge and jury, due to the technical
nature of the facts, are unable to formulate. An experts opinion is
admissible to furnish the Court with scientific information which is likely to
be outside the experience and knowledge of a judge or jury. If on the proven
facts a judge or jury can form their own conclusions without help, then the
opinion of the expert is unnecessary (Turner (1974), 60 Crim. App. R.
80, at p. 83, per Lawton L.J.).
[75]
In Sam v. Wilson, 2007 BCCA 622, Mr. Justice Smith
considered the application of Snell with particular attention being
placed on the appropriateness of a trier of fact drawing an inference when
there exists medical evidence which addresses an issue:
[39] In Snell v. Farrell, [1990] 2 S.C.R. 311 at
328, the Court stated:
… the dissatisfaction with the
traditional approach to causation stems to a large extent from its too rigid
application by the courts in many cases. Causation need not be determined by
scientific precision. It is, as stated by Lord Salmon in Alphacell Ltd. v. Woodward,
[1972] 2 All E.R. 475 (H.L.), at p. 490, …essentially a practical
question of fact which can best be answered by ordinary common sense rather
than abstract metaphysical theory.
[40] Relying on Moore v. Castlegar & District
Hospital (1998), 49 B.C.L.R. (3d) 100 (B.C.C.A.), Dr. Wilson asserts:
. . . where both parties have led expert evidence on the issues of causation,
it is not open to this Court to apply the common sense reasoning urged in Snell
v. Farrell…. I do not think the reasoning in Moore extends so far.
[41] In Moore the Court said in para. 11: …in
a case such as this where there is affirmative medical evidence leading to a
medical conclusion it is not open to the court to apply the common sense
reasoning urged in Snell v. Farrell. Moore was an unusual case.
The trial judge rejected the only evidence that supported the assertion the
plaintiff had voluntary movement of his legs at the scene of the accident. The
medical evidence was unequivocal that if the plaintiff did not have voluntary
movement of his legs at the scene of the accident, his injury was sustained in
the accident and was not caused by the conduct of hospital personnel. After
commenting on SneII v. Farrell, Hollinrake J.A. stated in para. 11:
I take it this is what the trial judge was referring to when
she said:
All parties have led evidence on this issue [causation] and
it would be inappropriate to resort to an inferential analysis as was argued on
the plaintiffs behalf.
The Court also noted in para. 5 that after rejecting the
evidence concerning voluntary movement, the trial judge said: [w]ithout
evidence of movement, the expert evidence is clearly to the effect that the
plaintiffs injury was sustained in the motor vehicle accident.
[42] As McLachlin C.J.C. stated
in para. 9 of Resurfice Corp.: . . . a trial judge is not obliged
to consider the opinions of expert witnesses if he can arrive at the necessary
conclusions on issues of fact and responsibility without doing so.
[76]
There are a number of cases where such inferences of fact have been
drawn by a court: Cherry (Guardian ad Litem) v. Borsman (1992), 94
D.L.R. (4th) 487 at 505-506 (B.C.C.A.); Levitt v. Carr, [1992] 4 W.W.R.
160 at 179-186 (B.C.C.A.).
[77]
Though Mr. Zawadzki periodically had some lower back discomfort he had
no real history of back pain for the six or seven year period preceding the
Accident. His lower back problems from earlier accidents had, based on the
plaintiffs evidence, the medical records and the opinions of Drs. Sehmer and
Le Nobel, resolved. I accept that this is so. He had some back pain for a brief
period after the Accident. A little more than a year after the Accident that
back pain resurfaced in a very significant and enduring way.
[78]
There is no evidence that Mr. Zawadzki suffered from a fall, a
mishap or another injury between the Accident and the time when his lower back
began to cause him difficulty. Indeed, he worked far less and was engaged in
far fewer activities than he had been in the years which preceded the Accident.
[79]
The evidence of Ms. Richardson and Mr. Smith is consistent in
establishing that Mr. Zawadzki has learned to compensate for his inability
to extend his right elbow, the weakness in his right arm and his right elbow
pain by using asymmetrical body movements. These asymmetrical movements and his
over compensation lead to increased reliance on and use of his back.
[80]
In this case I am prepared to infer or conclude, on the balance of
probabilities, that but for the Accident Mr. Zawadzki would not have the
ongoing lower back pain that he does. There are times when such inferences are
based on a robust, though nonetheless legitimate, exercise of fact finding: Lankenau
Estate v. Dutton (1991), 79 D.L.R. (4th) 705 at 714-718 (B.C.C.A.). Here I
do not consider that such an inference requires a particularly robust
approach to fact finding; instead, I consider it to be both pragmatic and an
exercise of common sense. Counsel for the defendant Mr. Calimoso agreed
that no medical evidence existed which prevented me from drawing this inference.
iii) Sleep
[81]
Mr. Zawadzki asserts that since the Accident he has had difficulty
sleeping. He says he regularly has considerable trouble falling asleep and
frequently awakens feeling tired. The records suggest that these difficulties
did not exist immediately after the Accident. There is no record of such
problems in Dr. Sehmers early notes or in the notes of the
physiotherapists that Mr. Zawadzki met with in early 2005. Nevertheless,
such sleep difficulties are raised with many of the health professionals that Mr. Zawadzki
met with in the years that followed. They were expressly raised with each of
Drs. Desmond Coen, Shane, Smith and Teal. They were accepted as being serious
or marked in nature with Dr. Teal asserting that Mr. Zawadzki suffered
from significant sleep disturbance. The underlying cause for such sleep
problems varied slightly as between the experts. Dr. Smith ascribed its
primary basis to pain. Drs. Shane and Teal attributed the plaintiffs sleep
difficulties to depression. On either basis, for reasons I will develop
further, I find that the plaintiffs ongoing sleep problems were caused by and/or
are attributable to the Accident.
iv) Headaches
[82]
Mr. Zawadzki claims he has had significant and at times
excruciating headaches since the Accident. Yet again, there is no record of
such complaints in the months following the Accident. In the years which
followed there are many reports of such headache pain in the records and in the
medical reports. Dr. Teal, the only physician to directly address the
cause of Mr. Zawadzkis headaches in any detail and whose opinion I accept,
said:
At the time of my evaluation, Mr. Zawadzki reported he
was experiencing intermittent headaches approximately 2-4 times per week. The
headaches are variable in duration and when severe accompanied by light and
sound sensitivity. He will have to sometimes lie down with the lights off.
Sleep helps his headaches. The headaches build up in a gradual fashion and are
bifrontal in location and throbbing in nature.
It is my opinion that Mr. Zawadzkis headaches are
consistent with migraine headaches.
It is also my opinion that Mr. Zawadzkis headaches do
not fulfill the diagnostic criteria for chronic posttraumatic headaches. The
diagnostic criteria for chronic posttraumatic headache require that headaches
develop within seven days of the accident and persist for more than three
months following the trauma. A review of the medical records and also the
history obtained from Mr. Zawadzki did not conform with that diagnostic
criteria. Headaches were not a prominent complaint following the accident. At
the time of my evaluation, Mr. Zawadzki stated he was uncertain as to when
his headaches started but believes his current pattern of headaches perhaps
started a couple of years ago, three or four. He states he is pretty sure he
mentioned this to his doctor at some point.
I am unable to attribute Mr. Zawadzkis
current headache pattern and profile to sequelae of the motor vehicle accident
of September 17, 2004.
Thus, I find that Mr. Zawadzkis headaches were not
caused by the Accident.
v) Changes in Activities and Social Interaction
[83]
The Accident has fundamentally changed Mr. Zawadzkis ability to
partake in the various activities that previously gave him pleasure and in his
level of social activity.
[84]
Mr. Zawadzki testified that following the Accident he was unable to
play the drums as he had and that his right elbow pain required him to change
his playing style. Nevertheless, he tried to play. About a year after the
Accident Mr. Faruki asked the plaintiff to join a band. Mr. Faruki,
who had heard the plaintiff play prior to the Accident and who described his
then level of play as stellar, said that after the Accident he was good. Mr. Faruki
also testified that during rehearsals Mr. Zawadzki tired easily and needed
breaks every 15-20 minutes. Mr. Zawadzki said he also required these
breaks because his elbow hurt. Eventually, as the length of the bands
practices extended, Mr. Zawadzki could not continue. He was asked to leave
the band. Mr. Faruki said the plaintiff cried when he was asked to leave. Mr. Zawadzki
confirmed he had never been asked to leave a band before on account of his playing.
He also said that this band was less proficient than many of the earlier bands
that he had played with. Mr. Zawadzki further indicated that following the
release of its CD, OthyrWorld was asked to play at a festival in Germany but
that he could not go because of his elbow injury.
[85]
At present, Mr. Zawadzki does not play music socially and he rarely
plays at home.
[86]
Mr. Zawadzki has, since the Accident, sold the classic car he had
rebuilt. He no longer works on such classic cars for or with his friends.
[87]
Mr. Zawadzki also tried to play golf after the Accident. Multiple
witnesses confirmed, as did Mr. Zawadzki, that his play was markedly less
good. Mr. Faruki also testified that on two or three separate occasions he
and Mr. Zawadzki had started to play a round of golf. After six or seven
holes, Mr. Zawadzki suffered from such pain that he was crying and they
had to call the clubhouse to ask that a cart be sent to pick him up. For some
years, for all practical purposes, Mr. Zawadzki has stopped playing golf.
[88]
The plaintiff’s various friends testified, as did Mr. Zawadzki,
that he has not gone boating or camping since the Accident. He has been on a
dirt bike once. His withdrawal from these activities appears to be related to their
relatively vigorous nature and to the discomfort that engaging in them would
cause him.
[89]
At the same time, it appears that Mr. Zawadzki has significantly
withdrawn from his friends. This withdrawal was a consistent and dominant aspect
of the evidence from the plaintiffs friends. Mr. Chen testified to
calling Mr. Zawadzki repeatedly and not having his calls returned. Ms. Zarazun
had had Mr. Zawadzki over to her familys home for dinner twice a month
prior to the Accident. Though she continued to regularly invite the plaintiff
after the Accident, perhaps once or twice a month, he has never come over since
the Accident. Mr. Larson said that notwithstanding numerous invitations
the plaintiff has only been to his home two or three times in the last six
years. He has similarly consistently turned down invitations from his friends
for other social events or activities. He was described by Mr. Buljan as
someone who hides in his home and by Mr. Bevelaqua as a recluse. Such
descriptions are completely at odds with who Mr. Zawadzki was prior to the
Accident. None of this evidence was tested in any serious way. It stands
uncontradicted and I accept it.
vi) Depression, Anxiety and Anger
[90]
There is overwhelming evidence that Mr. Zawadzki has suffered from
very significant mood disorders as a result of the Accident. The evidence of a
number of witnesses is consistent with this. Almost immediately after the
Accident, Mr. Zawadzkis friends perceived him to be depressed or very
sad or lethargic. Initially they attributed these symptoms to his injuries. The
symptoms, however, persisted and worsened. In August 2009, the plaintiff was
taken to hospital by Mr. Larsen because of concerns that he was suicidal. Mr. Zawadzki
testified that he has, since the Accident, often felt very sad or depressed. He
worries a great deal and, in particular, about his future. He is often angry or
irritable.
[91]
Such evidence, though anecdotal in nature, was important. Mr. Chen,
who now lives in northern British Columbia, reported that when he finally reached
Mr. Zawadzki about a year and a half after the Accident, Mr. Zawadzki
cried on the phone. This was something that had never happened before. Mr. Coles
indicated that very soon after the Accident Mr. Zawadzki was a different
guy and said my buddy was gone.
[92]
These symptoms also spilled over to other aspects of the plaintiffs
life. He was unkempt and unshaven. He has allowed the condition of his home to
deteriorate. When Ms. Richardson or Mr. Smith came to his home, a few
years after the Accident, his grass had not been recently cut and his exterior
walls required cleaning. At this point in time his home is described as a mess
and disgusting. There are water stains on the ceilings and his carpets are
filthy. His fridge has rusted through. Mr. Buljan has offered the plaintiff
a replacement fridge but that offer was declined. His shower stall has a hole
in it. His garage, once a source of pride, is completely disorganized and used
as a storage area.
[93]
Mr. Zawadzki also struggles with his temper. He has reported this
to a number of the doctors who he has seen. His daughter confirms he sometimes snaps.
Mr. Bevelaqua, who lives nearby, confirms that Amanda sometimes comes over
to his house when her father is upset.
[94]
The medical evidence was largely consistent with these descriptions in
changed mood. Before turning to the details of this evidence, I should note
that reference to a single conclusion or opinion or report, without fully
understanding its basis, can be misleading. Thus, for example, Dr. Coens
report states that the testing he had Mr. Zawadzki undertake indicated
that the plaintiff was not depressed. That conclusion, however, was premised on
a test which focused on the plaintiffs mood in the two weeks preceding the
test. Dr. Coen similarly reported that the plaintiff did not suffer from
any memory difficulties. That conclusion was based on testing that focused on
the immediate past or on events that were 20-30 minutes distant. It did not
pertain to long-term memory. Still further, Mr. Smith, who tested the plaintiff
on two separate occasions some months apart had him evaluate his mood as a
result of pain. He received an evaluation of annoying on one day and of miserable
on another.
[95]
Dr. Teal accepted, based on his testing, that Mr. Zawadzki has
had symptoms of depression and anxiety and that Mr. Zawadzki endorsed
multiple symptoms of depression. Drs. Smith and Shane expressly attributed
such anxiety and depression to the Accident. Dr. Shane, who in his
evidence described Mr. Zawadzkis life or sense of worth post-Accident as fractured,
opined:
Subjectively Mr. Zawadski relates symptoms of a
depressive nature dating back to the period after his accident in 2004. In
particular this has fluctuated in intensity and length. It has gone on for
weeks to months at times and has been characterized by diminished mood, lack of
interest in doing things, feeling hopeless, suicidal impulses, sleep problems,
diminished energy, poor appetite, feeling inadequate and difficulty
concentrating and feeling that he wanted to die as well as having suicidal
preoccupations. This is unique for him in that he was a very outgoing energetic
individual before the 2004 accident. There is no history of symptoms suggestive
of hypomanic episodes. He has had major changes in his life in terms of his
occupational setting and having to deal with chronic pain which would be major
precipitants in terms of this condition.
…
The accident has precipitated
issues of ongoing pain in his right elbow, a number of surgical procedures,
abuse of alcohol to minimize the pain and a significant depression of an
ongoing protracted nature with suicidal ideation.
[96]
Dr. Smith said:
In my opinion Mr. Zawadzki suffers from a major
depressive disorder characterized by depressed mood, loss of interest, drive
and motivation, anhedonia or loss of pleasure, insomnia, loss of energy, feelings
of hopelessness and occasionally suicidal ideation as well as cognitive
difficulties such as poor memory and concentration. At times he has lost his
appetite resulting in significant weight loss. These symptoms have waxed
and waned in severity, at times being severe and at other times mild, but
according to Mr. Zawadzki have been present continuously since shortly
after the accident in September 2004 indicating a major depressive disorder
that has run a chronic course.
In my opinion Mr. Zawadzki also suffers from a
generalized anxiety disorder. He is nearly always anxious, on edge and unable
to relax. He feels restless and agitated. He worries incessantly, experiences
frequent headaches, marked initial insomnia and difficulty with concentration.
…
It is therefore my opinion that
while Mr. Zawadzki was vulnerable to developing depressive and anxiety
disorders, and in fact had suffered from these conditions in the past, in the
absence of the MVA of September 2004 it is unlikely that these conditions would
have developed at that point or would have continued for as long as they have.
[97]
Drs. Smith and Shane both confirmed that Mr. Zawadzkis depression
was likely worsened by his drinking. Nevertheless, I find that the Accident
caused significant changes in Mr. Zawadzkis mood. These changes were
manifested as anger, anxiety and depression. Mr. Zawadzkis depression, in
particular, has at different times varied from mild to severe. These changes
have also caused Mr. Zawadzki to become very reclusive and withdrawn.
[98]
Such changes in mood are a foreseeable consequence of the Accident; Frazer
v. Haukioja, 2010 ONCA 249 at paras. 51- 61, Hussack v. School
District No. 33 (Chilliwack), 2009 BCSC 852 at paras. 133-140.
vii) Alcohol Consumption
[99]
Shortly after the Accident, the plaintiff began to drink heavily. The
results of blood tests performed on the plaintiff in late December 2004
indicated that certain liver enzyme levels were extremely elevated. The medical
evidence uniformly establishes that such elevated results are directly
referable to alcohol consumption. Dr. Smith confirmed that such elevated
enzyme levels would not arise as a result of binge drinking, but rather
reflected weeks or months of drinking.
[100] The
plaintiff admits he began to drink excessively after the Accident and that his
alcohol consumption reached the point where he was drinking 26 ounces of vodka
on a nightly basis. Mr. Zawadzki is allergic to a number of medications. His
evidence and a number of records indicate that he is, for example, allergic to
Tylenol 3, to Flexerol, a muscle relaxant, and to some blood pressure
medications. Mr. Zawadzki said that he drank to deal with the pain he
suffered from. I accept this evidence. It is consistent with the medical
evidence. It is also consistent with the PharmaNet records produced which
provide a complete list of all prescription medications the plaintiff obtained
within the period of time identified. In this case, those records establish
that from the date of the Accident to March 2008, the plaintiff obtained very
few medications. In particular, he only obtained two prescriptions for Tylenol 3.
He obtained no other pain medication. It is to be remembered that apart from
his ongoing pain symptoms, the plaintiff had three serious elbow surgeries
during this time. For all practical purposes it appears that the plaintiff self-medicated
to deal with the inevitable and significant pain that must have accompanied these
surgeries.
[101] At the
same time, the plaintiff said that there were extended periods since the
Accident and, in particular, since he was hospitalized in August 2007 that he
had largely stopped drinking and drank only a few glasses of wine per week. He
also indicated that he never drank while at work. At the time he gave evidence,
he said that he had not been drinking for many months. Though the plaintiff may
have suspended or diminished his drinking for some brief periods, I do not
generally accept his evidence on this issue. Mr. Zawadzki has never
acknowledged to a single physician that he dealt with that he was then drinking
excessively or that he had been drinking excessively in the weeks prior to his
attendance before them. He has not been forthcoming about his further
hospitalizations for alcohol-related issues in December 2009 and February 2010.
All testing of his liver enzyme levels since late 2004 have generated markedly
elevated results. The reports of Drs. Le Nobel and Teal refer to the plaintiff
having peripheral neuropathy – a loss of sensation or sensitivity referable to
alcohol abuse. The evidence from most of his friends was consistent with
significant levels of sustained drinking. Mr. Buljan, who gave evidence
about the plaintiffs drinking habits, described his present state as finished
and that he was no good. Mr. Zawadzkis daughter confirmed that her
father drank a great deal on a consistent basis, that he sought to hide that
drinking and that he had only stopped drinking for very brief periods of time.
[102]
The relevant medical evidence is also largely consistent. That evidence
establishes that the plaintiff began to drink after the Accident on account of
his mood and his pain. Dr. Shanes report states, as I have said, that the
Accident precipitated the plaintiffs abuse of alcohol. Dr. Smith said:
… On the basis of the available
information, it would appear that he began to abuse alcohol in an attempt to
self- medicate pain and dysphoria that followed the September 2004 accident and
therefore it seems likely that the accident and the physical injuries that it
caused played a major role in fueling his subsequent alcohol abuse problem.
Unfortunately as noted above, the alcohol in turn has likely aggravated the
concurrent depressive and anxiety disorders.
[103]
Importantly, Dr. Smith, in her report and further in her evidence, stated:
In light of the family history of
heavy drinking, it is likely that Mr. Zawadzki inherited a genetic
predisposition to mood and anxiety disorders as well as alcohol abuse.
[104] The
defendants argue that Mr. Zawadzkis alcoholism was not a foreseeable
consequence of the Accident. They rely broadly on the case of Mustapha v.
Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114 and more
specifically on several cases that deal with plaintiffs who post-accident
developed alcohol addictions.
[105]
Mustapha involved a plaintiff who, upon seeing a dead fly in an
unopened bottle of water, developed a debilitating psychological injury. In
that case, Chief Justice McLachlin, for the court, said:
[14] The remoteness inquiry depends not only upon the
degree of probability required to meet the reasonable foreseeability
requirement, but also upon whether or not the plaintiff is considered
objectively or subjectively. One of the questions that arose in this case was
whether, in judging whether the personal injury was foreseeable, one looks at a
person of ordinary fortitude or at a particular plaintiff with his or her
particular vulnerabilities. This question may be acute in claims for mental
injury, since there is a wide variation in how particular people respond to
particular stressors. The law has consistently held – albeit within the duty of
care analysis – that the question is what a person of ordinary fortitude would
suffer: see White v. Chief Constable of South Yorkshire Police, [1998] 3
W.L.R. 1509 (H.L.); Devji v. Burnaby (District) (1999), 180 D.L.R. (4th)
205, 1999 BCCA 599; [Vanek v. Great Atlantic & Pacific Co. of Canada (1999),
48 O.R. (3d) 228]. As stated in White, at p. 1512: The law expects
reasonable fortitude and robustness of its citizens and will not impose
liability for the exceptional frailty of certain individuals.
[15] As the Court of Appeal found, at para. 49, the
requirement that a mental injury would occur in a person of ordinary fortitude,
set out in Vanek, at paras. 59-61, is inherent in the notion of
foreseeability. This is true whether one considers foreseeability at the
remoteness or at the duty of care stage. As stated in Tame v. New South
Wales (2002), 211 C.L.R. 317, [2002] HCA 35. per Gleeson C.J., this
is a way of expressing the idea that there are some people with such a degree
of susceptibility to psychiatric injury that it is ordinarily unreasonable to
require strangers to have in contemplation the possibility of harm to them, or
to expect strangers to take care to avoid such harm (para. 16). To put it
another way, unusual or extreme reactions to events caused by negligence are
imaginable but not reasonably foreseeable.
[16] To say this is not to
marginalize or penalize those particularly vulnerable to mental injury. It is
merely to confirm that the law of tort imposes an obligation to compensate for
any harm done on the basis of reasonable foresight, not as insurance.
The law of negligence seeks to impose a result that is fair to both plaintiffs
and defendants, and that is socially useful. In this quest, it draws the line
for compensability of damage, not at perfection, but at reasonable
foreseeability. Once a plaintiff establishes the foreseeability that a mental
injury would occur in a person of ordinary fortitude, by contrast, the
defendant must take the plaintiff as it finds him for purposes of damage. As
stated in White, at p. 1512, focusing on the person of ordinary
fortitude for the purposes of determining foreseeability is not to be confused
with the eggshell skull situation, where as a result of a breach of duty the
damage inflicted proves to be more serious than expected. Rather, it is a
threshold test for establishing compensability of damages at law. [Emphasis in
original.]
[106]
I do not understand Mustapha to constrain Mr. Zawadzkis
recovery for three reasons. First, the comments of McLachlin C.J.C. in Mustapha
were directed to psychiatric harm unaccompanied by physical injury. Such harm
is recognized as giving rise to distinct legal considerations; Linden and Feldthusen
at 421 et seq.; Lewis Klar, Tort Law, 4th ed. (Toronto: Thomson
Carswell, 2008) at 476 et seq. This point of distinction is reinforced in Mustapha
by the courts emphasis on mental injury at paras. 14-16 and by the fact
that each of White, Devji and Vanek, referred to by McLachlin
C.J.C. in the foregoing quote, were cases that dealt with psychiatric injury or
nervous shock which was unaccompanied by physical injury. In saying this, I
accept that the principles emanating from Mustapha have, in some cases,
been applied in broader contexts.
[107]
In Devji v. District of Burnaby, 1999 BCCA 599, Chief Justice
McEachern succinctly explained, at para. 2, the basis for the distinction
being drawn: Because the plaintiff is not physically injured, and may not even
come into contact with the defendant, the psychiatric injury alleged is an
extra step removed from the negligence of the defendant, and difficult
questions of proximity and duty of care arise.
[108]
This point of distinction was also identified by Madam Justice Boyd in Hussack.
She went on, however, to also deal with those cases where the plaintiff is physically
injured and then develops a mental illness:
[137] While the boundaries of the reasonable
foreseeability requirements are understandably constrained in cases of pure
nervous shock, as was the case in Mustapha, the limits of foreseeability
in the case at bar, which involves both an initial physical injury as well as a
mental injury which followed, are not so constrained. To the contrary, the
courts have always distinguished between pure psychiatric damage claims and
those claims which are accompanied by a physical injury.
[138] The fact that the ultimate outcome here was unusual
or surprising begs the issue of whether or not the initial head injury was the
cause in law. The defence position articulated in para. 563 above ignores
the rule in Hughes v. Lord Advocate, adopted by Dickson J. (as he then
was) in Assiniboine South School District v. Greater Winnipeg Gas Co.[,
[1971] 4 W.W.R. 746, 212 D.L.R. (3d) 608 (Man. C.A.) at 752:
It is enough to fix liability if
one could foresee in a general way the sort of thing that happened. The extent
of the damage and its manner of incidence need not be foreseeable if
physical damage of the kind which in fact ensues is foreseeable. … [Emphasis
added.]
[139] There are a number of
authorities in which a party suffers an injury by virtue of the defendants
negligence and goes on to develop a mental illness, whether hysteria or a
somatoform disorder or conversion disorder or some other illness. In all
of these cases, the courts will apply the usual principles which apply in
relation to causation (Varga v. John Labbatt, [1956] O.R. 1007, 6 D.L.R.
(2d) 336 (H.C.); Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318, 73 B.C.A.C.
253 (C.A.); Edwards v. Marsden, 2004 BCSC 590; Samuel v. Levi,
2008 BCSC 1447). As Lambert J.A. noted in Yoshikawa at para. 13,
(t)he general principles which apply in relation to causation in law will
apply to psychological injury as they apply to physical injury.
[109]
In this case, Mr. Zawadzki suffered physical injuries as a result
of the Accident. Neither his depression and anxiety nor his addiction issues
stand alone.
[110]
Second, Mustapha dealt with a plaintiff whose psychiatric
response to the defendants wrongdoing was extraordinary. McLachlin C.J.C.
indicated, at para. 18, that his reaction was described by medical experts
as highly unusual and very individual. In addressing foreseeability, McLachlin
C.J.C., said, at para. 13:
The degree of probability that
would satisfy the reasonable foreseeability requirement was described in The
Wagon Mound (No. 2) as a real risk, i.e. one which would occur to
the mind of a reasonable man in the position of the defendan[t] … and which he
would not brush aside as far-fetched (Overseas Tankship (U.K.) Ltd. v.
Miller Steamship Co. Pty., [1967] A.C. 617 at p. 643).
[111]
It is this backdrop, a concern with harm that would generally be
regarded as far-fetched, that caused the court to rely on, as a workable
standard or benchmark, the person of ordinary fortitude. These concerns have little
place in the context of the present case. There was no suggestion, subject to the
thin skull comments I will make momentarily, from any witness and certainly
no medical evidence which suggested that the plaintiffs response to his
physical and psychological injuries reflected a lack of ordinary fortitude or
was very individual to him.
[112]
Third, McLachlin C.J.C. took care, at para. 16, to confirm that the
propositions being advanced in relation to foreseeability did not erode or
dilute the legal consequences of causing harm to an eggshell skull plaintiff.
[113]
The principle underlying the thin skull doctrine was explained by Major J.
in Athey at para. 34:
… It is named after the
well-known thin skull rule, which makes the tortfeasor liable for the
plaintiff’s injuries even if the injuries are unexpectedly severe owing to a
pre-existing condition. The tortfeasor must take his or her victim as the
tortfeasor finds the victim, and is therefore liable even though the
plaintiff’s losses are more dramatic than they would be for the average person.
[114] The
well-known case of Smith v. Leech Brain & Co. Ltd., [1961] 3 All
E.R. 1159 (Q.B.), illustrates the application of the doctrine. A workers lip
was burned by the spattering of molten metal which, in turn, triggered the
development of a cancer at a spot where he had premalignant cancerous tissues.
When he died three years later, his wife sued the employer.
[115]
Chief Justice Lord Parker said at 1162:
The test is not whether these
defendants could reasonably have foreseen that a burn would cause cancer and
that Mr Smith would die. The question is whether these defendants could
reasonably foresee the type of injury which he suffered, namely, the burn. What,
in the particular case, is the amount of damage which he suffers as a result of
that burn, depends on the characteristics and constitution of the victim.
[116]
Klar confirms at 487:
… A defendant will be held
liable for the full extent of a plaintiffs injuries, not withstanding that
they were more serious due to a pre-existing condition, or the increased
vulnerability of the plaintiff, as long as the initial injuries were of a kind
that was reasonably foreseeable.
[117]
In this case, Mr. Zawadzkis original physical injuries were
foreseeable. So too, the defendants concede, were his depression and anxiety. It
was the combination of pain and mood that Drs. Shane and Smith said gave rise
to the plaintiffs excessive drinking. Dr. Smith also confirmed that Mr. Zawadzki
had a genetic predisposition, by virtue of the alcoholism of his parents, to
alcohol abuse. A genetic vulnerability to alcohol abuse is the very type of
pre-existing susceptibility that the thin skull rule addresses.
[118]
It is clear that both a susceptibility to physical harm and to
psychological harm fall within the ambit of the thin skull rule: Hussack
at para. 143; Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318 (C.A.)
at para. 19. I can see no principled reason why a similar vulnerability to
an addiction disorder should be treated or viewed differently.
[119]
In relation to the foreseeability of the plaintiffs alcoholism, the
defendants also relied on Korliuk v. Miller, [1984] B.C.J. No. 702,
where Mr. Justice MacKinnon said:
[7] Damages. The Plaintiff is entitled to damages.
Among other things, he seeks compensation for loss of enjoyment of life,
including marital breakdown and susceptibility to alcoholism. He claims the
accident caused him to become alcoholic. He testified he was unable to take
pain-killing drugs and consequently, took to drink for relief. Not
surprisingly, no medical sanction was given for such a prescription. He told of
his marital breakdown, his depression, the consequences of his conduct whilst
under the influence of drink. There is evidence before me which the Plaintiff
denies, that he had been an alcoholic for several years before the accident. It
is not necessary for me to make a finding as to whether he ever was an
alcoholic before the accident. I say this because I am satisfied there is no
proof the alcoholism of the Plaintiff was caused by the accident. The Plaintiff
decided to take drink for killing pain. The consequences from his own acts
should have been foreseeable to him, but not to the Defendant.
[8] Furthermore and
more importantly, the condition was not caused by the Defendant’s negligence.
In Kovak v. Smith, [1974] W.W.R. 677, the Court awarded damages when it
was proved the accident caused a paranoic illness. In that case, however,
there was considerable medical evidence from which the trial judge could
conclude that a serious paranoic illness was actually caused by the accident.
Here there is no such medical evidence. On the contrary, there is a medical
opinion that it is impossible to determine the relationship between the
Plaintiff’s alcoholism and the accident.
[120] I do not
consider that Korliuk guides the result of the case before me. I do have
medical evidence which deals directly with the fact that the plaintiff’s pain and
mood after the Accident precipitated or fueled" or caused his
subsequent alcoholism. The word precipitate is defined in Collins as
to cause to happen or to bring on. The word fuel is defined as something
that nourishes or builds up. I was presented with no evidence that was
inconsistent with these conclusions.
[121]
In Harris v. Kuntz, [1993] B.C.J. No. 1682 (S.C.), Madam
Justice Kirkpatrick, as she then was, dealt with a plaintiff who began to abuse
alcohol following a motor vehicle accident and said:
[147] Mr. Harris consumption of alcohol is a
significant factor to consider in assessing his disability. Prior to the
surgery it appears that Mr. Harris use of alcohol was unremarkable. After
the surgery, it is plain that he came to rely heavily on alcohol as a means of
dealing with his pain and disappointment which resulted from his failure to
recover from the surgery. In August, 1988, Dr. Saunders noted that he was
drinking 96 cans of beer per week. In December, 1989 Dr. Martin reported
that, in the months before December, Mr. Harris had been consuming two
26-ounce bottles of hard liquor and two cases of beer per week. No expert
evidence is needed to say that this is an excessive amount of alcohol which
would undoubtedly adversely affect the plaintiff.
[148] Counsel for Mr. Harris argued that Mr. Harris
use of alcohol is a direct by-product of the pain caused by Dr. Kuntzs
negligence. The plaintiffs rejoinder to the defendants assertion, that the
excessive use of alcohol has contributed to Mr. Harris present state, is
in part founded on the evidence of Dr. Chalmers, the staff physician with
the Columbia Pain Centre. Dr. Chalmers described the typical sequelae of
chronic pain sufferers, including drug and alcohol use. She described these as
a product of their condition rather than the cause of it.
[149] In my opinion, the plaintiffs approach is too
simplistic. There is really no doubt that Mr. Harris experienced
significant pain in the years following the surgery. There is little doubt that
alcohol served to alleviate or mask that pain. It is really a matter of degree.
At some point it must be taken that Mr. Harris consumption of alcohol
passed beyond the bounds of masking a condition to the point where it created a
worsened condition. Mr. Harris cannot be relieved of his responsibility to
behave reasonably in the face of what are admittedly very difficult
circumstances.
…
[161] … In my opinion, Mr. Harris undoubtedly
suffered pain as a result of the surgery by Dr. Kuntz. He made sporadic
efforts to improve his physical condition. But the easier course was to rely on
alcohol and drugs. In my view, that is perfectly understandable. However, it
nevertheless mandates a reduction of the amount of compensation to which he is
entitled.
…
[189] It is of course
exceedingly difficult to assess what might have been if Mr. Harris had
followed his physicians advice and followed a strict regime of physical
exercise unimpaired by excessive alcohol and drug consumption. However, I consider
that it is open to me to assess this failure to act reasonably by applying a
percentage reduction to Mr. Harris post-1990 wage loss in order to
achieve an award of damages which fairly reflects ill at portion of the loss
attributable to Dr. Kuntz s actions. In these circumstances, I believe
that a 50% reduction is fair.
[122] It is not
clear whether Kirkpatrick J. dealt with the issue of the plaintiffs alcoholism
as a question of foreseeability or as a failure to act reasonably and to
mitigate. To the extent Harris engages questions of foreseeability, I
consider that the specific medical evidence before me relating to causation and
to Mr. Zawadzkis genetic predisposition to alcoholism gives rise to
different considerations. To the extent Harris engages the issue of
mitigation, I will address that issue later in these reasons.
[123] I find that
Mr. Zawadzkis alcohol abuse was caused by the Accident and that such alcohol
abuse was reasonably foreseeable.
viii) Cognitive Impairment
a) Did the Plaintiff Suffer Cognitive
Impairment?
[124] Mr. Zawadzki
testified to having problems with his memory and concentration. He said he
could not remember some songs when he played music. After the Accident he had had
some difficulty in remembering or organizing his fathers medications. He said
he struggled somewhat in working as an automotive technician. Such evidence was
supported by the evidence of friends who said that Mr. Zawadzki would get
confused assembling an engine. Mr. Larson said his skills were not as good
as they had been and that he was not as sharp. Mr. Chen said that he would
be vacant on the phone and that he would not track during conversations. I
raise these examples in part because it is necessary to translate such evidence
into the language used by the medical experts. A difficulty in assembling an
engine could be an example of a memory problem, a concentration problem or a
problem with executive functioning. When asked the question directly, Dr. Coen
responded that this example likely reflected a difficulty with executive
functioning.
[125] Dr. Smith
accepted that the plaintiff suffers from ongoing cognitive difficulties and in
particular loss of memory, poor concentration and poor cognitive processing. Dr. Teal
said his examination did not reveal significant problems with concentration,
attention, memory, mental processing speed or frontal lobe testing. This was
based on a single three-hour meeting which included about 45 minutes of
testing.
[126] Dr. Coen,
who is a neuropsychologist, met with the plaintiff for two days and had Mr. Zawadzki
undertake a significant number of very focused tests. Dr. Coen concluded
that the plaintiff suffered from sleep difficulties and further concluded that Mr. Zawadzkis
executive functioning was clearly in the impaired range of functioning. He
further stated … that Mr. Zawadzki is suffering from cognitive
impairment primarily impacting his executive functions. His logical and
abstract reasoning skills are test revealed to be highly impaired, to an extent
that is actually beyond his awareness at this time.
[127] I accept Dr. Coens
conclusions on this issue. They aligned relatively closely with the opinions of
Dr. Smith. They are consistent with the descriptions of difficulty
provided by Mr. Zawadzki and the lay witnesses. They are based on more
detailed testing of Mr. Zawadzkis attributes than was undertaken by Dr. Teal.
As it relates to difficulties with memory, they are consistent with the
observations of Dr. Le Nobel and with my own observations when the
plaintiff gave evidence. Accordingly, I find that the plaintiff does suffer from
difficulties associated with longer term memory, with concentration and with
cognitive difficulties that impair his executive functions.
b) What Gave Rise to Such Impairment?
[128] There is
unanimity amongst the experts that a number of factors can impact cognitive
function. Such factors include chronic pain, depression and anxiety, sleep
disorders and excessive alcohol consumption. Mr. Zawadzki struggles with
all of these problems.
[129] The
question is whether in this case Mr. Zawadzki suffers such impairment as a
result of the mild traumatic brain injury which the experts accept that he
suffered in the Accident. There are a number of factors which render this
question difficult. One such factor is the extent to which various illnesses
influence cognitive impairment. Thus, it is difficult to ascertain whether a
person who is both chronically depressed and who has suffered a mild traumatic
brain injury and who now suffers from some cognitive impairment does so as a
result of their depression or their brain injury. When that person also suffers
from anxiety, chronic pain, a sleep disorder and alcohol addiction this
assessment is rendered still more difficult.
[130] A further
complicating factor is the relative lack of agreement on the diagnostic
criteria that would support the existence of a cognitive disorder which was caused
by a head injury. Various well-recognized bodies have assembled different sets
of such criteria. For the most part such criteria are relevant for research
purposes but they are also useful for clinical purposes. One such set of
diagnostic criteria are found in DSM-IV, which is the Diagnostic and
Statistical Manual of Mental Disorders. Dr. Coen expressed the view that Mr. Zawadzkis
status was consistent with a condition known as Cognitive Disorder (not
otherwise classified).
[131] On the
first day of trial, counsel for the defendant Mr. Calimoso objected to
various portions of Dr. Coens report on various grounds. One such
objection was based on the fact that Dr. Coen, as a neuropsychologist
rather than a physician, lacked the skills required to make a diagnosis of an
organic brain injury. While I agreed with that proposition, I expressed the
view that in Dr. Coens report the diagnosis of an organic brain injury
had come from Dr. Le Nobel and that Dr. Coen was focusing, instead,
on the consequences of that injury – a matter that legitimately fell within his
professional purview. I noted, among other matters, that Dr. Coen had
stated that a Cognitive Disorder (not otherwise classified) was the
diagnostic convention that was the current standard for describing the
residual consequences of mild traumatic brain injuries.
[132] I would
not come to the same conclusion today. Having now heard a considerable amount
of evidence from a number of doctors, I would instead conclude that the
specific opinion expressed by Dr. Coen, that Mr. Zawadzki suffers
from a condition known as a Cognitive Disorder (not otherwise classified),
does reflect the diagnosis of an organic injury and does thus reflect a
diagnosis that Dr. Coen lacked the skills or expertise to express.
[133] It is a
condition whose diagnostic criteria are assembled by physicians. Furthermore,
regardless of which particular set of recognized criteria are used, the
diagnosis requires an assessment of multiple tests or measures, gleaned from
ambulance, hospital and medical records, such as the length of loss of
consciousness, loss of memory, altered mental state, amnesia and the results
arising from what is known as the Glasgow Coma Scale. It also requires, for
example, that one have the skills necessary to ascertain whether given
medications administered to an injured individual may have contributed to or
influenced such symptoms.
[134]
Apart from the ability of Dr. Coen to express this particular
opinion, I would not, in any event, accept the conclusion that Mr. Zawadzkis
cognitive impairment was caused by his mild traumatic brain injury. There was
broad agreement, including from Dr. Coen, that cognitive impairment following
the kind of head injury suffered by Mr. Zawadzki is unusual – perhaps 5%
of victims struggle with such consequences. In addition, and recognizing the
uncertainties associated with diagnostic standards, it does not appear from the
records that Mr. Zawadzki met the various post-Accident criteria used to
identify a Cognitive Disorder (not otherwise classified). Still further, Dr. Coens
conclusion that Mr. Zawadzkis head injury was responsible for his
cognitive difficulties, rather than his sleep problems or his history of
alcohol abuse, was based, at least in part, on the fact that there was no
clinical evidence that Mr. Zawadzki was continuing to abuse alcohol. While
there may not have been such clinical evidence in the period immediately
preceding Dr. Coen’s investigation, I have found that Mr. Zawadzkis
alcohol abuse was, post-Accident, chronic.
[135]
The opinions of each of Drs. Smith and Teal attach much more
significance to Mr. Zawadzkis other ongoing problems. Specifically, Dr. Teal
said:
The assessment of memory disturbance, problems with
concentration and attention, and behavioural aspects can be significantly
influenced by factors unrelated to traumatic brain injury. These factors
include mood disturbance and depression, anxiety, sleep disturbance, pain,
drugs and alcohol, and unrelated underlying disorders.
At the time of my evaluation, Mr. Zawadzki reported that
he had symptoms of depression and endorsed multiple symptoms of depression on
both the Beck Depression Inventory II and the Hamilton Depression Scale. Mr. Zawadzki
reported significant problems with sleep disturbance. He reported significant
symptoms of anxiety.
…
It is my opinion it is far more
likely that the delayed onset of symptoms of memory and concentration problems
currently reported by Mr. Zawadzki are far more likely to be secondary to
mood and anxiety disturbance, sleep disturbance, and the impact of several
years of severe alcoholism rather than due to lingering effects of his Mild
Traumatic Brain Injury.
[136]
Dr. Smith said:
In my opinion other factors are
more likely to have accounted for his cognitive difficulties, in particular his
very heavy and sustained alcohol consumption, which caused markedly elevated
liver enzymes. The CT scan findings of diffuse cerebral atrophy would also be
consistent with prolonged and heavy drinking. Heavy and prolonged drinking can
result in increasing memory loss, poor cognitive processing and concrete
thinking. Depression and anxiety are also associated with poor concentration,
memory problems and difficulty with decision-making. It is therefore my opinion
that the evidence for a traumatic brain injury is weak and that his cognitive
difficulties are more likely attributable to these other conditions.
[137]
Finally, Dr. Shane did not confirm, on the balance of
probabilities, that Mr. Zawadzkis cognitive functioning was affected by
his head injury. He concluded, instead, that such functioning was being
impacted by multiple factors and said:
As well there has been significant alcohol abuse over the
last six years. It is also important to indicate that depression and anxiety
may have an impact upon a persons psychological executive functioning. In Mr. Zawadzkis
case, there are many factors that may have and still may be contributing to his
struggles with intellectual organization and mood.
…
I am concerned about his
prognosis psychologically and occupationally. This is a problem with many
factors that may be responsible for his psychological struggles. The impact of
these various issues has no doubt had a deleterious effect on his global
functioning.
[138]
This last concern, over Mr. Zawadzkis occupational and
psychological prognosis, was also shared by Drs. Smith and Coen. Dr. Smith,
under the heading Prognosis, said:
Without treatment the prognosis
for improvement in his depressive and anxiety symptoms is very poor as his
symptoms have essentially continued for more than five years and remain
clinically significant. As indicated above, unfortunately Mr. Zawadzki has
not received treatment for his major depression or generalized anxiety
disorders and therefore it remains to be seen to what extent he can benefit
from treatment. Generally speaking the majority of people do benefit from
antidepressant medications and cognitive behaviour therapy, so this is likely
to be the case with Mr. Zawadzki. With treatment, I would anticipate that
his sleep will improve and this in turn would likely lead to an improvement in
his cognitive functioning, although if as I suspect that much of the impairment
comes from alcohol-related damage, it is possible that he will not regain his
former cognitive functioning. Furthermore, should he relapse into drinking
heavily again, this may very well lead to a marked worsening of his clinical
depression and anxiety while also causing a worsening in his memory.
[139] Based on
the foregoing, I make the following specific findings:
a) Mr. Zawadzkis
various cognitive difficulties were likely caused by multiple disparate factors
including pain, a sleep disorder, depression and anxiety and alcohol abuse.
They were not caused by Mr. Zawadzkis head injury.
b) The
prognosis for Mr. Zawadzkis cognitive difficulties is very uncertain.
Sobriety would likely be of positive benefit but the degree of such benefit is
also uncertain.
ix) Employment
[140] Almost
immediately after the Accident, there was real doubt about whether Mr. Zawadzki
could return to work as an automotive technician. After several months of
physical therapy and a further elbow surgery, Mr. Zawadzki attempted a
graduated return to work, on a part-time basis, at Dawson in June 2005. That attempted
return to work was unsuccessful.
[141] There was some
suggestion by the defendants that Mr. Zawadzki could have found employment
as a mechanic at a shop that did lighter work than Dawson. I do not accept that
this is so. The reports of each of Ms. Richardson and Mr. Smith
recognize that Mr. Zawadzki struggles with various physical restrictions.
Leaving aside the precise kinds of work done by Dawson, Mr. Zawadzki cannot,
on a sustained basis, do many of the things required by the National
Occupational Classification for an automotive technician. Once again, however,
relying on the conclusions in such expert reports, without more, can be
misleading. The report of Mr. Smith, for example, indicates that Mr. Zawadzki
can perform activities requiring sustained/repetitive forward and overhead
reaching. On questioning, sustained/repetitive meant for five or six
minutes. The real question is how Mr. Zawadzki would fare if required to
do given tasks for longer periods of time on a day in day out basis.
[142] After Mr. Zawadzkis
failed graduated return to work, he was partially retrained at Dawson as a
service writer – an individual who deals with customers, identifies what might
be wrong with their vehicles and then generates a computer service order. For
reasons to which I will return, Mr. Zawadzki did not pursue becoming a
service writer. Instead, Dawson again sought to accommodate him in the shop by
giving him the lighter work which was available and by giving him tasks such as
deliveries. Mr. Zawadzki worked at Dawson from June 2006 until March 2007.
Things did not work out. Mr. Zawadzki said he could not do the work required
of him and that there were safety issues involved in his trying to do some of
that work. Mr. Bogusinski confirmed this evidence. Mr. Zawadzki could
not hold his tools properly. He could not lift as required. It was apparent to Mr. Bogusinski
that Mr. Zawadzki struggled with his right arm. He could be seen trying to
support it with his left arm during the course of the day as he tired. In
addition, a co-worker, who felt Mr. Zawadzki was not carrying his weight,
created some friction. Mr. Zawadzki was let go. It is to be remembered
that Mr. Bogusinski and Mr. Zawadzki were childhood friends, that Mr. Zawadzki
had worked at Dawson for years and was well-respected and that Dawson had
actively tried to give him lighter work. Notwithstanding these factors, Dawson
was unable to keep him on.
[143] I find
that as a result of the Accident, Mr. Zawadzki lacked the ability to
continue to work as an automotive technician.
F) Adverse Inferences
[144] The
defendants argue that adverse inferences should be drawn from the fact that the
plaintiff failed to call five different physicians. These doctors included Dr. Sehmers
locum, who the plaintiff first saw after the Accident; Dr. Goetz, the
surgeon who performed the third surgery on the plaintiffs elbow; Dr. England,
a WCB doctor the plaintiff saw in December 2005; and two further physicians,
Drs. Payne and Sobey who the plaintiff saw when he was admitted to hospital in
August 2007 and August 2009 respectively. Different reasons are advanced for
why the failure to call these particular physicians was relevant. It is to be
noted that there was no suggestion that the clinical records relevant to the
work of these doctors or of their meetings with the plaintiff were not
produced. It is to be further noted from an admission filed by counsel that the
plaintiff saw at least 19 physicians, including the five physicians I have
named, none of whom, other than Dr. Sehmer, were called at trial. This
figure does not include the various experts I have referred to in these
reasons.
[145] Apart from
the specific reasons advanced for why the evidence of these five doctors was
particularly important, the defendants emphasize that the failure of the
plaintiff to execute any of the authorizations which would have permitted them
to speak to these five doctors, or in fact to any of the 19 doctors I
mentioned, is a significant unifying and underlying concern that warrants
drawing the adverse inferences contended for. This conduct, it is said,
interfered with and undermined the defendants ability to interview the doctors
in question.
[146] The
plaintiff argues that he was under no obligation to execute the authorizations he
received. In support of this proposition, he relies on the decision of Mr. Justice
Hinkson, as he then was, in Stead v. Brown, 2010 BCSC 312. That case
dealt with the narrow question of whether a plaintiff can be ordered to execute
authorizations for the release of records in the hands of third parties. The
further question of whether a plaintiff can be compelled to sign an
authorization which enables counsel for the defendant to speak to various
treating physicians was not addressed directly before me. In addition, I have
no knowledge of why, in this case these authorizations were not signed by or on
behalf of the plaintiff.
[147] In this
case, the defendants could have sought to compel the plaintiff to sign the
authorizations, or to conduct what was formerly a R. 28 examination under the Rules
of Court of those physicians to whom they wished to speak. However, this
latter option would be expensive, time consuming and inconsistent with the
usual practice. Absent some principled basis for the plaintiffs conduct and
refusal, a cost award might ensue.
[148] Nevertheless,
I am not persuaded that the plaintiffs failure, without more, should give the
defendants the substantive remedy or benefit that they seek. The circumstances
where it is appropriate to draw an adverse inference are well understood. In
seeking this result, the defendants are conflating possible remedies for a
failure to provide a signed authorization with the circumstances that properly
give rise to an adverse inference.
[149] An adverse
inference may be drawn against a party if, without sufficient explanation, that
party fails to call a witness who might be expected to provide important
supporting evidence if their case was sound: Jones v. Trudel, 2000 BCCA
298 at para. 32. The inference is not to be drawn if the witness is
equally available to both parties and unless a prima facie case is
established: Cranewood Financial v. Norisawa, 2001 BCSC 1126 at para. 127;
Lambert v. Quinn (1994), 110 D.L.R. (4th) 284 (Ont. C.A.) at 287.
[150] In this
case, neither of these criteria is met. I have no evidence that the defendants
were unable to or, in fact, so much as tried to speak to any of the physicians
in question. Furthermore, they made no effort, as I have said, to compel
execution of the authorizations to which I have referred or to avail themselves
of the former R. 28 or the new R. 7-5 to obtain material evidence from a
person not a party to an action.
[151] In
addition to having the clinical records from all of the doctors in question,
the document agreement made between the parties confirmed that all such records
were prima facie proof of the facts observed and recorded and of the
statements made. Still further, Mr. Zawadzki overwhelmingly accepted that
such statements were accurate. He did not quarrel with the contents of the
notes of Drs. Payne and Sobey.
[152] It is also
unclear to me how the plaintiff could have discerned which of the 19 physicians
he should call at trial to avoid exposure to the risk of an adverse inference. This
is particularly so because the plaintiff saw most of these physicians on an
isolated basis, and further because Dr. Goetz was not even on the list of
authorizations sought by the defendants; thus the plaintiff had no reason to
believe that his evidence would be important. Finally in this case, having
regard to the number and nature of the plaintiffs injuries, the six-year
period since the Accident and the very significant number of doctors the
plaintiff has seen, the practical concerns expressed by the Court of Appeal in Buksh
v. Miles, 2008 BCCA 318 at paras. 31-35, are particularly apposite. I
do not, therefore, consider it appropriate to draw the adverse inferences the
defendants seek and I have declined to do so.
G) Mitigation
[153] In several
respects Mr. Zawadzki was very diligent in his efforts to mitigate the
consequences of the Accident. He went to three different extended programs of
physiotherapy for the first 18 months following the Accident. He had three
elbow surgeries, the latter two in part to alleviate his pain. He used the
elbow brace he was given. Six years after the Accident he continues to stretch
most days.
[154] At the
same time, Mr. Zawadzki has done nothing or almost nothing to address
other problems. He has not sought professional assistance for his sleep and
mood disorders. Most notably, he has failed to take any active steps to address
his alcohol addiction. He has been advised to address this difficulty on
numerous occasions. He has been told to do so by multiple physicians and by
multiple friends. His friends have spoken to him individually and in groups.
The physicians I refer to have included the many doctors he has dealt with during
his various hospital attendances as well as the various doctors who appeared at
trial. He has been referred to various centers and programs. Instead, Mr. Zawadzki
has sought to deal with his addiction issues on his own. Dr. Smith,
perhaps charitably, ascribed this, in part, to his stubbornness. She also attributed
it to denial, which is an attribute of the disease itself.
[155] The word fortitude
may be misplaced when describing a person who suffers from a mental illness
such as depression or from an addiction disorder. The law requires, however,
that a person take reasonable steps to mitigate or abate the harm caused to
them by a wrongful act. It is here, in the desire and concomitant obligation to
seek help and to try and get well, that the concept of fortitude is engaged. It
was not open to Mr. Zawadzki to allow his life to deteriorate in a
downward spiral. Instead, it was incumbent on him to try, in a reasonable way, to
address and rectify his physical and psychological difficulties. These efforts
included, at a minimum, that he get competent professional advice and that he try
to follow that advice. In saying this, I am mindful that there may be instances
where the very nature of ones injury acts as an impediment to seeking help.
Thus, in Elloway v. Boomars (1968), 69 D.L.R. (2d) 605 (B.C.S.C.), the
court concluded that the plaintiffs psychosis was itself a factor in his
refusal to seek assistance. In this case, there is no evidence that Mr. Zawadzki
suffered from any such enduring underlying disability. He has for the most part
been able to go to work. He has attended before numerous physicians in
connection with this litigation. He attended at the trial itself.
[156] At the
same time, it is not enough to simply point to Mr. Zawadzkis failure to
seek assistance. It is necessary, in a more searching way, to consider what
this means and what benefit might reasonably ensue from such assistance. The
burden of proof in relation to these issues rests with the defendants. Mr. Zawadzki
has underlying problems with pain, sleep, depression, anxiety and alcohol.
Recommendations have been made in the medical reports for each of these
problems. It was proposed Mr. Zawadzki look into potential further elbow
surgery. He has not done so. It was suggested by counsel for the defendant Mr. Calimoso
that Mr. Zawadzki might look into pain medications to which he is not
allergic. Dr. Smith proposed both that antidepressant medications such as
Cipralex and behavioural therapy might manage Mr. Zawadzkis depression,
anxiety and sleep. Dr. Shane largely echoed these suggestions. During cross-examination
by the defendants, it was conceded that there are further medications which can
assist with sleep and there exist various centers that specialize in sleep
disorders.
[157] What was
left largely unaddressed in the reports of the medical experts was what, if
any, prospect of success the measures they proposed might reasonably enjoy –
particularly if one considers these difficulties in combination rather than
individually.
[158] Dr. Smith
indicated that certain treatments are effective in about two thirds of the
people who suffer from depression or anxiety. There was, however, no discussion
of how successful these treatments are for people who also have addiction
issues and who suffer from chronic pain and a sleep disorder. By virtue of the
fact that alcohol exacerbates depression, one would expect that these figures would
be decreased.
[159] Similarly,
Dr. Smith gave evidence that there are medications which can be given to
alcohol addicts, who have unsuccessfully exhausted conventional rehabilitation
treatments, which are successful in about 50% of patients. There was once again
no discussion of how this success rate is affected in people whose parents were
alcoholics and who are thus more susceptible to alcohol abuse, or who
concurrently suffer from multiple other underlying problems associated with
depression and anxiety as well as with pain and sleep, or who have serious
allergies to various kinds of medication.
[160] Still
further, there was no discussion of whether it was viable to concurrently take various
medications for sleep, for pain, for anxiety and depression and for an alcohol
addiction particularly when one is already an addict. Dr. Teal, for
example, said that the pain medication, oxycodone, which Mr. Zawadzki may
have no allergy to, is frequently used by drug addicts.
[161] In this
case, while I am satisfied that Mr. Zawadzki has failed to act reasonably
and to follow the professional advice he was given, it is much less clear what would
have flowed from his having reasonably and diligently followed that advice. Mr. Zawadzki
suffers from an unfortunate confluence of difficulties and illnesses which
exacerbate each other.
[162] I accept
that had Mr. Zawadzki sought professional assistance for his various
difficulties, such assistance likely would have been of benefit. I do not
understand or find that the wide-ranging mitigative steps being proposed by the
defendants and the medical evidence would likely have resolved Mr. Zawadzkis
physical, psychological and cognitive problems. Instead, they had the likely
prospect of ameliorating those problems with the degree or extent of benefit
being uncertain.
[163]
The proper approach for assessing the consequences of the plaintiffs
past failure to mitigate his loss was addressed in Janiak v. Ippolito,
[1985] 1 S.C.R. 146 at 170:
As Blair J.A. points out, support is also to be found for the
majority approach in a number of Australian cases, notably Newell v. Lucas,
[1964-65] N.S.W.R. 1597. In Plenty v. Argus, [[1975] W.A.R. 155], Burt
J. seems to have adopted it in the following obiter statement at
p. 159:
And if a finding is made that a
plaintiff in the face of an uncertain prognosis acted unreasonably in not
submitting himself to surgery or treatment, then it would seem that his damages
should be assessed having regard to his condition as it is, discounted by the
evaluation of the lost chance, or as one would if the assessment were made in
advance of the carrying out of the advised treatment
In my view the majority
approach is consistent with first principles as expressed by Lord Diplock in Mallett
v. McMonagle, [1970] A.C. 166, at p. 176:
The role of the court in making an assessment of damages
which depends upon its view as to what will be and what would have been is to
be contrasted with its ordinary function in civil actions of determining what
was. In determining what did happen in the past a court decides on the balance
of probabilities. Anything that is more probable than not it treats as certain.
But in assessing damages which depend upon its view as to what will happen in
the future or would have happened in the future if something had not happened
in the past, the court must make an estimate as to what are the chances that a
particular thing will or would have happened and reflect those chances, whether
they are more or less than even, in the amount of damages which it awards.
[164] Counsel
for the defendant Mr. Calimoso proposed that I consider, as was recently
done by Mr. Justice Sewell in Penner v. Silk, 2009 BCSC 1682, the
issue of mitigation separately as I address each head of damage. I consider
this to be a sound way to proceed.
H) Non-Pecuniary Damages
[165] The
Accident has fundamentally changed Mr. Zawadzkis life. It caused a
significant arm injury and gave rise to ongoing lower back problems. By virtue
of these physical injuries, and in particular his elbow injury, Mr. Zawadzki
lost the ability to continue with employment which was personally rewarding and
at which he was very competent. That loss of employment has also resulted in
some loss of status, as he was proud of his skills and was well regarded, as
well as some significant and inevitable loss of future control over his
employment options.
[166] His
injuries and, in particular his elbow injury, also precluded him from engaging
in a number of activities that gave him pleasure, that were a source of some
pride and that formed the basis of his social life. He has, for all practical
purposes, stopped golfing and playing music. He does not work on cars. He does
not go dirt biking, camping and boating with his friends. Mr. Zawadzki also
suffers from a number of mood disorders. He is anxious and chronically
depressed. He is often angry. He sleeps poorly. He has become reclusive. He is
an alcoholic. Still further, he suffers with difficulties in concentration, memory
and executive functioning. Mr. Zawadzki was a formerly successful, happy,
well-rounded and social individual.
[167] The
plaintiff has proposed that I make a stand alone or independent award which
would reflect the fact that the plaintiff has struggled to maintain his home or
has lived in surroundings where work has remained undone. I consider that it is
appropriate, instead, to factor this consideration, with others, into the
plaintiffs award for non-pecuniary loss: McTavish v. MacGillivray, 2000
BCCA 164 at para. 68-69; Poirier v. Aubrey, 2010 BCCA 266 at para. 32.
[168] Looking
into the future, there are various competing contingencies or factors that are
relevant. The state of Mr. Zawadzkis right elbow is likely to
deteriorate. It is likely that Mr. Zawadzkis use of his elbow will be
further constrained and that he will suffer further pain. Mr. Zawadzki has
said he would now consider getting help for his addiction issues and for his
mood disorders. There is a substantial possibility that such assistance will be
of benefit to Mr. Zawadzki and that it would, in turn, improve his
cognitive functioning. Dr. Smith has said, however, that Mr. Zawadzkis
delay in getting such help may diminish the benefit he would otherwise have
received.
[169] There is
also a substantial possibility, as Dr. Smith has identified, that Mr. Zawadzkis
genetic predisposition to alcohol abuse would have caused him difficulty in any
event.
[170] Based on
these considerations, I would assess Mr. Zawadzkis non-pecuniary damages
at $180,000 before taking into account the question of mitigation. In arriving
at this figure, I have considered the non-exhaustive list of factors identified
by Madam Justice Kirkpatrick, for the majority, in Stapley v. Hejslet,
2006 BCCA 34 at para. 46. Furthermore, while recognizing that each case
has to be decided on its own facts, I have been guided in arriving at this
conclusion by Young v. Anderson, 2008 BCSC 1306; Burdett v. Eidse,
2010 BCSC 219; Schucknecht v. Singh, 2006 BCSC 1025; and Roussin v.
Bouzenad, 2005 BCSC 1719. These cases also deal with cognitive impairment
arising from a brain injury and in some instances with somewhat more severe
injuries than those suffered by Mr. Zawadzki. The award I have made
adjusts for these considerations. I have largely discounted the cases relied on
by the defendants. These cases, in the main, deal with a much narrower range of
injuries whose impacts on the plaintiffs in question were generally less
severe.
[171] In
addressing the question of mitigation, it is important to recognize that a
significant subset of Mr. Zawadzkis difficulties would not be impacted by
any such mitigation. This includes his loss of the work he enjoyed, a loss of self-esteem,
loss of ability to participate in a wide-range of activities and some resulting
loss of social interaction.
[172] The
remaining problems of ongoing depression and anxiety, sleep disorder, anger and
alcohol abuse could have been ameliorated. So too, at least to some extent,
could Mr. Zawadzkis cognitive impairment. I have earlier commented on the
difficulties associated with quantifying any such potential benefit.
[173] It is also
important to place Mr. Zawadzkis alcohol addiction in context because so
much time was spent at trial on this issue. Quite apart from any alcohol issues,
Mr. Zawadzki would struggle with each of the physical and psychological
problems I described. The dramatic changes to his work, recreation and social
life would exist. At the same time, his severe alcohol addiction has
exacerbated some of his existing psychological difficulties. In particular, it
has likely intensified his depression and anxiety, and worsened his cognitive
impairment.
[174] In
considering Mr. Zawadzkis failure to mitigate, I am of the view that an
adjustment of 20% should be made to the award I otherwise would have made. In
the result, I assess Mr. Zawadzkis non-pecuniary damages at $144,000.
I) Past Wage Loss
[175] Almost
immediately after Mr. Zawadzki left Dawson, he went to work for his friend
Mr. Faruki as an independent contractor. Mr. Faruki ran a small
disposal company. Mr. Zawadzki worked for Mr. Faruki from April 2007
until November/December 2007. Mr. Zawadzki was paid about $20 per hour,
which was a similar wage to what he had received at Dawson though it does not
appear he received benefits while working for Mr. Faruki. Mr. Faruki
was also prepared to accommodate Mr. Zawadzkis physical limitations. Mr. Zawadzki
was not required to do any heavy lifting and much of his work was limited to
sweeping or vacuuming. He was able to take frequent breaks. There were days
when there was no work. Even so, Mr. Zawadzki was frequently tired and after
2 to 3 hours he was finished. During the last part of a 4 to 5 hour job, Mr. Zawadzki
would end up sitting in a truck. The work with Mr. Faruki was seasonal,
with there being more work available from spring to fall and with workers being
laid off in the winter months. Mr. Faruki did not rehire Mr. Zawadzki
in 2008, at least in part, because his other workers were more able-bodied.
[176] In March
2008, Mr. Zawadzki began to work as an independent contractor with his
friend Mr. Buljan, in a business known as the King of Coring. The business
focused on concrete drilling which was required to accommodate wiring and
plumbing in high-rise buildings. Mr. Zawadzki again did the lighter
physical work. He also oversaw the technical work of lining up drawings and
deciding where drilling or cutting should take place. Again, Mr. Zawadzki worked
when jobs were available. He liked the fact that there were some breaks so that
he could rest. It appears that there was a considerable amount of work early
on. Mr. Zawadzki said that he worked less over time and had not worked, at
the time of trial, for many months because there was no work. Mr. Buljan
said that the quality of Mr. Zawadzkis work deteriorated over time, that
he was drinking heavily and indicated that it was his alcohol consumption which
now prevented Mr. Buljan from calling him to work. I accept Mr. Buljans
evidence.
[177] While he
did not actively seek additional work in the 2007-2010 period, Mr. Zawadzki
did some work for his friend Mr. Larson and he also, from time to time,
did much diminished amounts of auto repair work for various other friends.
[178] The
defendants argue that Mr. Zawadzki could have and should have gone to work
as a service writer. In 2006, WCB had identified this job as one which Mr. Zawadzki
could perform notwithstanding his various restrictions and which would also
keep him involved in automotive maintenance. WCB paid to have him trained as a
service writer by Dawson. For various reasons, Mr. Zawadzkis training was
not completed. In part, this stemmed from his belief that the work was not for
him. He felt he would be unhappy doing such work. He had never worked in an
office and was unfamiliar with computers. He admitted he was not interested in
the work. At the same time, Mr. Bogusinski acknowledged he lacked the time
to train Mr. Zawadzki fully.
[179] Notwithstanding
these matters, I find that Mr. Zawadzki could have become trained and
worked as a service writer. This conclusion is also consistent with the reports
and evidence of each of Ms. Richardson and Mr. Smith. In addition, I
find that Mr. Zawadzki would have found work as a service writer. His
background as an automotive technician caused him to be uniquely qualified for
the position. Indeed, though Mr. Bogusinskis memory was unclear, the
records and Mr. Zawadzkis evidence establish that Mr. Zawadzki was
offered a position as a service writer while he was still at Dawson. There was
no direct evidence that Mr. Zawadzkis cognitive impairment would have
interfered with his ability to do this work. To the extent various experts have
expressed concerns about the plaintiffs future employment, I do not
understand, nor was it suggested, that those concerns were relevant to Mr. Zawadzkis
taking on employment as a service writer in late 2006. Furthermore, Dr. Smith
stated, in her report of April 2010, that Mr. Zawadzkis ongoing symptoms
of anxiety and depression did not prevent him from working.
[180]
Mr. Zawadzki was required, notwithstanding his disinterest in such
work, to find and accept work that would enable him to replace the income he
had lost. In Parypa v. Wickware, 1999 BCCA 88 at para. 67, Mr. Justice
Cunningham said:
[67] These cases demonstrate that the trier of fact, in
determining the extent of future loss of earning capacity, must take into
account all substantial possibilities and give them weight according to how
likely they are to occur, in light of all the evidence. However, in calculating
such likelihoods, the plaintiff is not entitled to compensation based solely on
the type of work she was performing at the time of the accident. There is a
duty on the plaintiff to mitigate her damages by seeking, if at all possible, a
line of work that can be pursued in spite of her injuries. If the plaintiff is
unqualified for such work, then she is required, within the limits of her
abilities, to pursue education or training that would qualify her for such
work. If the plaintiff claims she is not able to mitigate by pursuing other
lines of work or by retraining, she must prove this on a balance of
probabilities. The requirement for mitigation is addressed by this court in [Palmer
v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.) at 59, leave to
appeal dismissed [1991] 1 S.C.R. xii]:
A plaintiff is not entitled at the
cost of the defendant to say, The only sort of work I like is such and such. I
cannot do that. Therefore, you must give me sufficient capital to replace the
income I cannot earn on that sort of job.
What the respondent proved in this case was that he had lost
his capacity to follow the sort of occupation he was pursuing at the time of
the accident. But that did not prove, on a balance of probabilities, that he
could not earn by pursuing some other sort of occupation, as much as before.
[181] The
foregoing portion of Parypa was recently considered and applied in Wilson
v. Bird, 2008 BCSC 1586 at paras. 40-41.
[182] Mr. Gosling,
an expert in labour market economics, provided data which established the
average annual earnings for a full-time automotive technician. Those average
earnings, based on 2006 data and adjusted for inflation to the trial date, were
$51,900. That figure includes taxable non-wage benefits. Those benefits, on
average, constitute 10% of earnings. It does not include non-taxable benefits.
[183] Mr. Bogusinski
indicated that there had been significant wage increases for automotive
technicians in recent years. At present, he pays his top technicians, which
would have included Mr. Zawadzki, an hourly wage of $30 plus benefits.
Using Mr. Goslings average figure of 10% for benefits, Mr. Zawadzki’s
2010 total hourly wage would have been about $33 per hour. I have no
information of what non-taxable benefits Dawson provided its employees.
[184] It is not
entirely clear what the plaintiff earned per hour in 2004. Both parties used a
$20 per hour figure in their calculations. So too have I. It does not appear
that this figure included benefits. Once again, using Mr. Goslings 10%
figure for benefits, Mr. Zawadzkis total hourly wage in 2004 would have
been $22 per hour. I note that Mr. Zawadzkis 2004 prorated income of
$45,000 is generally consistent with an hourly wage of $22 and a forty hour
work week. This increase, from $22 per hour in 2004 to $33 per hour in 2010
generates a 50% increase in earnings from 2004 to 2010.
[185] With this
backdrop, there are three periods of time from the date of the Accident to
trial that are relevant. In the following paragraphs I provide the gross
amounts for each of the three periods and leave it to counsel to determine the appropriate
net award. If counsel cannot determine the proper net award, as required by Laxdal
v. Robbins, 2010 BCCA 565, they may re-appear before me on this issue.
a) The First Two Years
[186] The
defendants accept that Mr. Zawadzki was unable to work for about two years
following the Accident. This would be September 2004 to approximately September
2006. In order to calculate Mr. Zawadzkis loss with precision, one would
have to extrapolate from the date of the Accident to year-end for 2004 from Mr. Zawadzkis
2004 tax return, calculate the salary increase he would have enjoyed in each of
2005 and 2006 and then adjust the figures for 2004 and 2006 accordingly to
recognize that earnings in those years reflect only parts of the years. I have
used $48,000 as an average for the two years in question, resulting in a gross
wage loss for the first two years of $96,000.
b) September 2006 to December 2009
[187] Using Mr. Zawadzkis
tax returns and a prorated 2004 T4 income of $45,000, and knowing that Mr. Zawadzkis
income grew by approximately 50%, his 2010 T4 income, inclusive of benefits,
would be approximately $67,500. This is to be compared with the average auto
technicians earnings of $51,900 that I referred to earlier. The average
service writer, using 2006 figures adjusted for inflation to 2010, earned
$45,300. I am prepared to assume that Mr. Zawadzki would have been an
average service writer. This strikes me as a conservative assumption as he had
no previous experience doing this work. In 2010, this would have generated a
difference or loss of income of approximately $22,000. I do not believe this
difference would have been quite as extreme in each of the years from 2007
onwards as incomes for automotive technicians have recently increased dramatically.
[188] I have
concluded that from September 2006 to December 2009, the amount of $70,000
would represent a reasonable figure for Mr. Zawadzkis pre-tax loss had he
worked throughout this period. Furthermore, had Mr. Zawadzki worked
consistently during this period, there would be no reason to make any
adjustment based on a failure to mitigate. It would simply represent the difference
between what he could have earned as an automotive technician and what he could
earn as a service writer.
[189] I do not
consider, however, that it is realistic to assume that Mr. Zawadzki would
have worked on a consistent basis throughout this 40-month period. Mr. Zawadzkis
condition deteriorated over time. By 2009, he had been hospitalized several times.
In Smith v. Kundsen, 2004 BCCA 613 at para. 24, the Court of Appeal
confirmed that hypothetical events should be taken into account as long as
their occurrence is a real and substantial possibility and not mere
speculation, citing Athey at para. 27. It is clear the plaintiff
was ill during this period and I find that there is a real and substantial
possibility the plaintiff would have missed further work during this period. I have
fixed his total income loss during the period at $100,000 and have reduced this
amount by 15% on account of the plaintiffs failure to mitigate. Mr. Zawadzkis
gross loss would be $85,000.
c) The 2010 Year
[190] Using the
2010 income figure of $67,500 and prorating it for the first nine months of the
2010 year, yields $50,625. This is the figure that Mr. Zawadzki has lost
by not working in the 2010 year. A very significant portion of this loss is a
function of the fact that Mr. Zawadzki has sought no assistance for his
various psychological and alcohol-related difficulties. His failure to work is significantly
influenced by the severity of his present drinking condition, the effect of his
drinking on his other symptoms and his failure to seek any help to address his
problems. Addressing the question of mitigation is further complicated by the question
of whether treatment would have been successful and by the question of what
time off of work Mr. Zawadzki would have required for treatment or
rehabilitation in order to address his addiction and other issues. Recognizing
these factors, I have reduced this last sum by 50%. This adjustment yields a
gross amount of approximately $25,312.
[191] The sum of
the figures for the three distinct periods of time I have dealt with from
September 2004 to the date of the trial, reflects Mr. Zawadzkis total
past wage loss. That amount is $206,312.
[192] The
defendants did not attach any significance to the plaintiff’s modest annual
losses arising from his home automotive business or his music. Accordingly, I
have not addressed these matters.
J) Future Wage Loss
[193] The
evidence establishes that at the present time and for the foreseeable future Mr. Zawadzki
will suffer from significant impediments and disabilities which are relevant to
his employability and which were caused by the Accident.
[194] Mr. Zawadzki
for many years worked in an occupation for which he was well qualified and well
suited. His employment was stable. He was well paid and well regarded. His
skills were likely to continue to assure him of a competitive wage and of
steady employment within his chosen field. Mr. Zawadzkis employment,
however, had both a technical component and a significant physical component.
[195] The
Accident gave rise to several physical infirmities. Those infirmities affected Mr. Zawadzkis
strength and are relevant to his ability to lift, push or pull. They impacted
and restricted his ability to reach or extend as well as his ability to twist
or bend. His ability to handle small objects is diminished. These facts are
established in the reports of Ms. Richardson and Mr. Smith. They are
confirmed in the evidence of Mr. Faruki, Mr. Bogusinski and Mr. Zawadzki.
[196] The
reports of Ms. Richardson and Mr. Smith only assess employability on
the basis of physical capacity. Apart from this, however, Mr. Zawadzki suffers
from consistent pain as well as from chronic depression and anxiety which can,
at times, be severe. He has significant sleep problems. He is an alcohol addict.
He suffers from various attributes of cognitive impairment.
[197] In Kwei
v. Boisclair (1991), 60 B.C.L.R. (2d) 393 at 399-400 (C.A.), and
subsequently in T.W.N.A. v. Canada (Minister of Indian Affairs), 2003
BCCA 670 at para. 97, the courts dealt with the assessment of future
income losses and cited four important considerations (quoting Mr. Justice
Finch, as he then was, in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353
at para. 8 (S.C.)):
The means by which the value of the
lost, or impaired, asset is to be assessed varies of course from case to case.
Some of the considerations to take into account in making that assessment
include whether:
1. The plaintiff has been rendered
less capable overall from earning income from all types of employment;
2. The plaintiff is less marketable or
attractive as an employee to potential employers;
3. The plaintiff has lost the ability
to take advantage of all job opportunities which might otherwise have been open
to him, had he not been injured; and
4. The plaintiff is less valuable to
himself as a person capable of earning income in a competitive labour market.
[198] In this
case, each of these considerations pertains to Mr. Zawadzki. I recognize
that in general the exercise of compensating a plaintiff for the reduced value
of their capital asset is not a precise exercise. Instead, [t]he task of the
court is to assess damages, not calculate them according to some mathematical
formula: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11. There are,
however, instances where a more precise actuarial calculation can provide a
framework for the assessment: Tom v. Truong, 2003 BCCA 387 at para. 22.
This is a case where such calculations provide a useful starting point for the
assessment of Mr. Zawadzkis future wage losses.
[199] Using the
2010 income figure of $67,500 that Mr. Zawadzki would have earned had he
continued at Dawson and the $45,300 figure he notionally could have earned as a
service writer and assuming Mr. Zawadzki worked to the age of 60, his
future income loss would have been approximately $220,000. This figure
incorporates the economic income multipliers contained in Mr. Goslings
report and has the added benefit of already factoring in various normal labour
market contingencies. I am aware that Mr. Zawadzki has indicated he hoped
to retire at age 55. Many people have such aspirations, but few, particularly
in todays economic environment, realize them. Mr. Zawadzki said he had
had some savings. Of necessity, they would have to have been quite modest. Mr. Zawadzki
said he had used up his savings since the Accident, and in fact, that he
recently had missed several mortgage payments. I consider a retirement age of 60
to be more realistic.
[200] On the
other hand, this $220,000 figure, while a useful signpost, does not adequately
address the many contingencies, overwhelmingly negative, which are presented in
the evidence. The calculation presupposes that Mr. Zawadzki would continue
to work, in an uninterrupted manner, as a service writer for the next 15 years.
It is a figure to which no discount on account of a failure to mitigate would
pertain.
[201] This
premise, of necessity, is already inaccurate as a result of the plaintiffs
present condition and lack of employment in the months preceding trial. The
prognosis for his future employability, by virtue of his psychological
condition, is uncertain. Dr. Shane said he was concerned about his prognosis
psychologically and occupationally. I earlier referred to the portions of Dr. Smiths
report which emphasize the importance of Mr. Zawadzki getting various
kinds of professional assistance and the uncertainty associated with such
treatment. Still further, she opined that should Mr. Zawadzki relapse into
heavy drinking again, which he has, this would lead to a marked worsening of
his clinical depression and anxiety as well as his memory. Dr. Coens
report emphasizes the importance of Mr. Zawadzki getting further
vocational testing to address his future employability. While Dr. Coens
report addressed Mr. Zawadzkis cognitive impairment in terms of a brain
injury, I understand the emphasis on such testing to be directed to the reality
of Mr. Zawadzkis impairment as opposed to the cause of it.
[202] The
severity of Mr. Zawadzkis present state makes clear the artificiality of
scenarios that are based on sustained and uninterrupted employment. The
severity of his present state also suggests that even with successful treatment
and rehabilitation, there would be some delay in his getting back into the
workforce. Some consideration has to be provided to the time associated with
treatment or rehabilitation. Dr. Piper has also indicated that Mr. Zawadzki
may require a further surgery for his elbow.
[203] I am
conscious of Mr. Zawadzkis obligation to mitigate and to address the
disparate problems I have identified, as well as of the fact that his delay in
seeking help has diminished the prospects of his recovery. Even with diligent
efforts at rehabilitation and treatment for these problems, however, there
existed and continues to exist a substantial possibility that such efforts
would be of limited benefit. Indeed, if his present state of functioning, with
diligent effort on his part, was not improved there is some doubt about whether
he would again be employed. Such a scenario would give rise to an outer range
of loss, using the assumptions that I detailed earlier and the multipliers
contained in Mr. Goslings report, in excess of $675,000.
[204] While
there is an obligation on the part of plaintiffs to take on remunerative
employment in which they have no interest in order to mitigate their loss, one
has to question the long-term viability of such employment for an individual
who suffers from chronic depression. If Mr. Zawadzki were not employed as
a service writer, there is very little evidence of what other concrete options
he would have. Mr. Zawadzki is a 44-year-old man of average intelligence
who lacks a high school degree. He has, for all practical purposes, been
employed in a single job throughout his adult life. His employment options are,
of necessity, circumscribed.
[205] His
various cognitive deficiencies would further limit his options. So to would the
worsening of the degeneration and pain in his elbow. The evidence of Mr. Faruki
vividly describes the limitations relevant to Mr. Zawadzki doing even
relatively light physical work on a sustained basis.
[206] On the
positive side, Mr. Zawadzki has historically been very dependable,
hard-working and determined. Even after being let go by Dawson in 2007, he
found work almost immediately. He worked hard at rehabilitating his right
elbow. The medical evidence suggests that there is a substantial possibility
that he can re-engage in the work force on a sustained basis.
[207] I have
also considered that Mr. Zawadzki might, at some point in the future, as
suggested by Dr. Smith, have had some problems with depression, anxiety or
alcohol addiction because of his predisposition to such illnesses.
[208] Having regard
to all the foregoing factors and contingencies, I consider that the sum of
$400,000 reflects a fair assessment of Mr. Zawadzkis loss of capacity and
future income loss. I also consider that this figure should be adjusted by
20% to recognize Mr. Zawadzkis failure to seek assistance and take
reasonable positive steps to address the many problems he struggles with. The
adjusted figure is $320,000.
K) Cost of Future Care
[209]
A future care claim should be assessed by asking what expenses would be
incurred by a reasonable person to obtain medically recommended treatment. In Bystedt
v. Hay, 2001 BCSC 1735, Madam Justice D. Smith observed:
[163] Thus, the claim must be
supported by evidence that establishes the proposed care is what a reasonable
person of ample means would provide in order to meet what the plaintiff
reasonably needs to expend for the purpose of making good the loss… It must
also be based on an objective test of what is moderate and fair to both
parties…
[210] Full
compensation as explained in Andrews v. Grand & Toy Alberta Ltd.,
[1978] 2 S.C.R. 229 at 240-242 and Milina v. Bartsch (1985), 49 B.C.L.R.
(2d) 33 at paras. 180 and 199 (S.C.) requires that there should be medical
justification for a cost of future care expense and that the expense must be
reasonable.
[211] The supplemental
report of Mr. Gosling generates a series of cost of future care tables
that are based on the reduced life expectancy figures advanced in the report of
Dr. Elliot, and made relevant because of the plaintiffs alcoholism, and
the various specific care items contained in the report of Ms. Richardson.
I have relied on the British Columbia Male figures for the reasons expressed by
Mr. Gosling. These tables also describe a variety of scenarios based on
whether it was anticipated that the plaintiff would suffer from the onset of
elbow arthritis in 5, 10 or 15 years. They also create sets of figures based on
Minimum Costs, Maximum Costs or Midpoint Costs.
[212] I have
relied on the Maximum Cost schedule, found at Table IV, of Mr. Goslings
supplemental report. That schedule generates a cost of future care figure of
$130,690. I have done so for several reasons. First, the most negative
assumption advanced in these figures was that Mr. Zawadzki might suffer
the onset of elbow arthritis within five years from the date of trial. Thus,
payment of a number of expenses was deferred, in the report of Ms. Richardson,
and in the calculations of Mr. Gosling, until at least that point in time.
The assumptions in Ms. Richardsons report were based on early opinions
from Dr. Sehmer about anticipated degenerative changes. Dr. Pipers
first report echoed those concerns. Based on Dr. Pipers supplemental
report and on his evidence, Mr. Zawadzki already has such degeneration in
his elbow. This degeneration is likely to worsen. Second, it seems clear that a
number of expenses or types of expense are understated in Ms. Richardsons
report. By way of example, the psychological treatment referred to in her
report refers to a psychologist for behavioral sleep management as suggested
by Dr. Coen. Dr. Smith, however, in her report, which postdates the
report of Ms. Richardson, recommends 12-16 treatments with a registered
psychologist to develop strategies to manage depression, anxiety and pain
symptoms. These latter treatments are not included in the figures of Ms. Richardson
or in the report of Mr. Gosling. Importantly, none of these figures
include any amount for addiction counselling or potential rehabilitation.
Similarly, the report of Ms. Richardson includes a cost for pain
medication and muscle relaxants. The reports of Drs. Smith and Shane
suggest Mr. Zawadzki should also be prescribed antidepressants. Once
again, these costs do not make their way into the report of Ms. Richardson
or the cost calculations of Mr. Gosling. Thus, while the defendants place
much weight on the importance of the plaintiff seeking help to address his
problems, many of the likely costs of such assistance are not included in Ms. Richardsons
report.
[213] Recognizing
that the costs associated with various treatment regimes must be supported by
medical evidence, the need for the following distinct treatments or expenses in
the report of Ms. Richardson are supported by the following experts. I
have only focused on the issue of which expert supported the need for what
future treatment because the defendants did not question the costs of the
treatments or assistance that were contained in Ms. Richardsons report.
a) Exercise Programs
i) Four Kinesiologist Treatments
per year – Dr. Le Nobel.
ii) Gym pass – Drs. Le Nobel
and Piper.
b) Physiotherapy
(after Development of Arthritis) – Drs. Le Nobel and Piper
c) House and Yard Maintenance
i) Basic Yard Maintenance –
Dr. Le Nobel as well as the evidence of each of Mr. Smith and Ms. Richardson
who addressed what physical work Mr. Zawadzki is capable of.
ii) Heavy household
maintenance – Dr. Le Nobel.
d) Home Making Assistance
(after development of arthritis)
Dr. Le Nobel supported
providing Mr. Zawadzki with assistance for heavier household tasks. In
her description of homemaking assistance Ms. Richardson clarified that Mr. Zawadzki
required assistance with heavier housecleaning tasks. I understand these two
descriptions to coincide. In addition, the amount claimed annually, which was
only to commence five years after trial, is based on four hours of assistance a
week – an amount I consider reasonable.
e) Medication – Drs. Le Nobel, Smith and Shane
f) Psychological Treatment – Drs. Coen and
Smith
g) Occupational Therapy – Dr. Coen
h) Vocational Assessment – Drs. Coen and Shane
L) Special Damages
[214] The
parties agree that special damages should be fixed at $18,035.99.
Summary
Non-pecuniary Damages | $144,000.00 |
Past Wage Loss | 206,312.00 |
Future Wage Loss | 320,000.00 |
Cost of Future Care | 130,690.00 |
Special Damages | 18,035.99 |
Total: | $819,037.99 |
[215]
In reaching an award totalling $819,037.99, I have assessed the evidence
and I am satisfied that this figure represents a fair and reasonable award in
the circumstances of this case.
[216] The
parties have indicated that they anticipate being able to agree on a figure
which properly accounts for the plaintiffs lost years. If they cannot do so,
they are free to return to make further submissions.
[217]
The parties also asked that I defer dealing with costs. Counsel can
advise the Registry whether they wish to deal with this issue in writing or
otherwise.
Voith
J.