IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Warren v. Morgan, |
| 2013 BCSC 708 |
Date: 20130426
Docket: M083630
Registry: Vancouver
Between:
Camilla
Warren
Plaintiff
And
Geraldine
Morgan
Defendant
Docket: M083617
Registry:
Vancouver
Between:
Camilla Warren
Plaintiff
And
Mauro Gaetano Berretta
Defendant
Before:
The Honourable Madam Justice Russell
Reasons for Judgment
Counsel for Plaintiff: | D.C. Creighton |
Counsel for Defendants: | K.N. Grieve J.W.Joudrey |
Place and Date of Trial: | Vancouver, B.C. April 10-13, 2012 April 16-20, 2012 April 23-27, 2012 April 30-May 4, 2012 May 8-10,2012 |
Place and Date of Judgment: | Vancouver, B.C. April 26, 2013 |
The Plaintiff: Before and After the
Accident 6
The First Accident ─ February
5, 2008. 10
Second Accident ─ February 7,
2008. 10
The Plaintiffs Medical Evidence. 29
I. Dr. Pamela
Michele Williams. 55
The Plaintiffs Vocational and
Earnings Evidence. 66
The Defendants Medical Evidence. 71
Factual Findings for MVA #2. 78
The Plaintiffs Credibility. 79
Adverse Inference for Failing to Call
Dr. Devonshire. 84
Chart Tracking the Plaintiffs
Medical History. 87
Causation ─ Physical Injuries. 96
Causation ─ Psychological
Injuries. 102
Loss of Future Earning Capacity. 112
Introduction
[1]
The plaintiff Camilla Warren was involved in two motor vehicle accidents
within two days. On February 5, 2008, her Ford Windstar van was hit from behind
by the defendant Geraldine Morgan, who was driving a Toyota Corolla. On
February 7, 2008, her van was hit from behind by the defendant Mauro Gaetano Berretta,
who was driving a Mercedes SUV.
[2]
The first accident (MVA #1) appears to have been no more than a tap to
the back of Ms. Warrens vehicle and there was no discernible damage to
either car. Although the plaintiff claimed she immediately suffered pain to her
lower back, her car was not moved at all and her body was not moved by the
impact. She was able to go swimming the next day and she visited a
chiropractor. Her resulting pain seems to have been minor and transient.
[3]
The second accident (MVA #2) caused almost no damage to the
plaintiffs van but she suffered some injury from the impact. The damage to the
front bumper of Mr. Berrettas vehicle cost $6,000.00 to repair.
[4]
There is no evidence of repair undertaken on the plaintiffs rear bumper
following either accident.
[5]
Liability is admitted in both accidents. However, Ms. Morgan claims
the plaintiff suffered no damage as a result. She argues the case against her
should be dismissed.
[6]
I am satisfied that is the correct result for Ms. Morgan. The case
against her is dismissed.
[7]
However, the case against Mr. Berretta is not as simply resolved
and it is the subject of these Reasons for Judgment.
Issues
[8]
The issue in this case is causation. Ms. Warren alleges MVA #2
caused her severe chronic pain, profound cognitive dysfunction and
psychological injury. However, the evidence supporting this allegation is
heavily contested.
[9]
The severity of her alleged symptoms has been cast as suspicious by the
defendants, in view of the minor nature of the accident.
[10]
Also, the trajectory of Ms. Warrens recovery has been unusual. Within
the first half year, she experienced improvement. Her health subsequently declined.
It is unclear whether her alleged symptoms reached a plateau or improved after
that time. Furthermore, there is evidence that three years on, new symptoms have
developed.
[11]
Adding to the complexity of this matter, an MRI scan of Ms. Warrens
brain post-accident revealed ten white lesions, which raised suspicions of multiple
sclerosis (MS). The evidence suggests this illness is unlikely. The evidence
also establishes that these lesions were asymptomatic before MVA #2. The
plaintiff submits the accident either rendered the lesions symptomatic or made
her pre-disposed to developing a neurological condition.
[12]
These causation issues have in turn raised serious questions about the
credibility and reliability of the plaintiffs evidence as well as the evidence
proffered by the long list of medical experts called upon in this 22-day trial.
[13]
The heads of damages usually found in personal injury cases are also at
issue but their extent depends fundamentally on my findings regarding
causation.
The Evidence at Trial
The Plaintiff: Before and
After the Accident
Before the Accident
[14]
The plaintiff gave evidence over a five day period.
[15]
She was born in 1961 and was 46 years old at the time of MVA #2. She is
married to Brent Warren, a Chartered Accountant, and she is the mother of three
sons ─ Andrew, Stuart and Gregory. The family home is located in
Richmond, British Columbia.
[16]
Before marrying, Ms. Warren completed a degree in Commerce at the
University of British Columbia (UBC).
[17]
During and after graduating from university in 1985, she worked for a
variety of different companies in sales and distribution positions. She eventually
took a position with ACNielsen in Richmond as a Marketing/Research analyst in
March 1987. For a short period of time she was an account manager in client
services. After she returned from maternity leave for her first son she was promoted
to business manager for the retail services western Canada division. She ceased
working full time as of 1991, carrying a 60% work load from then to her
resignation from the company in January 1996.
[18]
Ms. Warren also worked part-time as a sessional instructor in the
business faculty of what was then Kwantlen College, beginning in 1991. She
taught introductory marketing as well as upper level management and retail
management. She taught until 1997 when she was pregnant with Gregory. She left the
workforce to be a stay at home mother.
[19]
She was not employed at the time of MVA #2. Ms. Warren did earn
some income from assisting her husband in his accounting practice. She also
completed a project for a client of her husbands, organizing and disposing of
the clients art work. She was paid a total of $30,000.00 for this work. Ms. Warrens
work for her husband could not be considered as anything more than part-time.
It is fair to say that her husband split some income with her for purposes of
tax avoidance. She continues to earn income from Mr. Warren post-accident,
as evident in her income tax returns. I note the PETA Consultants Ltd. expert
report suspected this declared income was for income splitting purposes.
[20]
Ms. Warren mentioned in direct examination that she was going to
undertake another project for the same client before her accidents. This
evidence was vague and she did not adduce any evidence to show an agreement of
some form was in place for this project.
[21]
Ms. Warren married Brent Warren in 1989. Before the accident, they
had enjoyed a good relationship.
[22]
At the time of trial, her oldest son was 21 and attending a prestigious
private university in the U.S. Her next son Stuart was 18 and completing his
final year at St. Georges, a local private school for boys. Her youngest son
Gregory was 16. He intended to attend St. Georges for the school year 2012 –
2013.
[23]
The Warrens bought their home after the birth of Andrew. This larger
space allowed them to host larger family parties and Christmas dinners. She
also hosted her husbands clients for lunches and dinners.
[24]
She recounted Andrews birth to the Court. An emergency operation was
performed upon her to deliver the baby without any anaesthetic. She also
suffered from a painful repair. A resident doctor had taken on responsibility
for this repair, apparently her first of the kind. She had forgotten to
administer any infiltration to the pelvic floor and had proceeded to stitch Ms. Warren
without any anaesthetic, until Mr. Warren had protested. Ms. Warren found the
sudden procedure and subsequent repair very traumatic. At one point, the
stitching was undone and redone. This repair was performed in front of a group
of doctors in training, which she found to be painful and degrading. She
experienced pain for approximately one year. She did not get therapy for this
incident.
[25]
Other traumatic events preceding the accidents were related to the Court.
[26]
When Ms. Warren was a child, she had scarlet fever and suffered an
allergic reaction to the penicillin administered.
[27]
She also recalled an incident where she had been playing with other
children and had a stick hit the corner of her eye. The stick had pushed it out
of its socket.
[28]
As a young adult, Ms. Warren had several individuals break into her
apartment while she was present.
[29]
She lost contact with her father in her youth and re-connected with him
when she had young children. He was 85 years old at the time and moved from
Australia to Vancouver to be close to the Warrens after that time. She lost
touch with her brother who suffers from schizophrenia when she was younger. It
seems that she is estranged from her sister. When she was 26 years old her
mother died from cancer, after a very brief illness.
[30]
Ms. Warren was in a motor vehicle accident in 1985 as a passenger
in a vehicle. She sustained whiplash and bruising in her back. She did not miss
any work as a result of that accident.
[31]
Otherwise, Ms. Warren claimed her health was excellent during the
time when her boys were young, although she did suffer from post-partum
depression after her second son was born. She did not have any therapy for this
depression. She did report seeing a chiropractor before her accidents to treat
back pain caused by lifting her children.
[32]
When the boys were young, the family would go on camping trips together.
They took the boys hiking and, on at least one occasion, scuba diving. They
would go biking and golfing as a family at their cabin in the Caribou.
[33]
Ms. Warren has always maintained an active lifestyle. She took
ballet and did horseback riding when she was young. She was a swimmer and a
cross country runner. In the year before to the accidents, she exercised three
times a week, engaging in different types of activities.
[34]
The Warrens sons are talented students and musicians, partly due to the
intense involvement of their parents in their lives. Ms. Warren was heavily
involved in their schooling and music lessons. All three sons play more than
one musical instrument and are successful in their academic and artistic
pursuits. Ms. Warren researched the appropriate schools for their talents,
found the best music teachers, involved herself in volunteer activities at
their schools, such as judging debating competitions, and drove them and their
friends wherever they needed to go. This involved delivering her sons daily to
schools far from home. She helped her sons with their homework, encouraged
their interests to the extent that she would take them on trips to meet authors
whose work they enjoyed, read their textbooks so as to improve her ability to
assist them with their work and generally focused her life on enriching their
knowledge and experience.
[35]
Ms. Warren herself studied music with her piano teacher, Phyllis,
who became a close friend. She would also attend the opera and Vancouver Symphony
with a group of women and friends.
[36]
She was an avid reader. She would read up on particular topics,
including theosophy and nutritional science. She read the newspaper and The
Economist. She read books together with her family and her husband, such as the
Greek classics and the sciences.
[37]
Ms. Warren ran the house and even undertook some part in its renovation.
She did the gardening and the housework. Her husbands involvement in the house
was virtually nothing. He has long hours in practice and is also involved in
the community.
[38]
Ms. Warren hired a housekeeper when she was still teaching at
Kwantlen College. Ms. Avila was hired to come and clean their home, one
day a week.
[39]
A typical day for the plaintiff was to get up around 6:00 a.m. It was
her responsibility to get her husband and older sons out of the house. She
would make them breakfast and lunches. She would then take her youngest son to
his school and drop him off. She would then do her errands for the day and meet
with friends or exercise. Some days she would do housework.
The First Accident ─ February 5, 2008
[40]
Ms. Warren described the conditions as cool, windy and overcast.
She was driving her son and two of his friends from the pool mid-day on Harvest
Drive. As she was preparing to turn right onto Ladner Trunk Road, she was hit
from behind. She felt as if she had been kicked.
[41]
She did not observe any damage to her vehicle.
[42]
She exited her vehicle and spoke to the driver, who explained she had
not seen her. They exchanged information.
[43]
She claimed she experienced continuous pain as if she had been kicked
afterward. She drove the children back to school and phoned the police. The
police directed her to contact ICBC. She reported the incident to ICBC.
[44]
She saw a chiropractor after this accident. She then went to see her general
practitioner (GP) at the time, Dr. McKenzie, to discuss her back pain.
Second Accident ─ February 7, 2008
[45]
Ms. Warren does not remember anything leading up to the second
accident. She knows she was driving to St. Georges to pick up her son, Stuart.
She was alone in her Ford Windstar van. It was about 3:20 p.m.
[46]
She was proceeding north on the Arthur Laing Bridge. She remembers being
all of a sudden hit from behind. She was thrust forward hard, violently. She
remembers a flash of seeing the floor, her head flung downward, and then being
thrust back into the seat with her head snapped upward. This all happened fast.
She was wearing a seatbelt. When she thinks about how it felt, she said it
makes her feel sick.
[47]
After the immediate impact, she had to collect her glasses from the
floor. She then stood on the bridge deck outside her car. She saw a large
vehicle had hit her. She saw a driver sitting in the vehicle looking
apprehensive and a woman running toward her. She next remembered the woman
being kind to her and helping with the exchange of information, although she
could not remember the specifics. She remembered her head hurting.
[48]
Her next memory is of being parked outside the Marpole Hotel. She felt
confused and did not know what to do. She had a business card from ICBC and
called that number. She also wanted to get in touch with her husband. She had
no recollection of leaving a message on his answering machine. She next remembers
being at St. Georges, sitting on some leather couches with people trying to
help her. Her head really hurt and she felt really drowsy. Her husband came to
collect her and they went to see Dr. McKenzie. She remembered crying and
not being able to express herself at the doctors office. She felt the back of
her head hurt. Her body was shaking. Her next recollection is of being at home
and her head hurting. She felt frightened by the pain. She saw her husband
asleep in the living room and she felt unsafe because no one was watching her.
[49]
In cross-examination, she denied being in rush-hour traffic; she claimed
the traffic was only backed up in the southbound lane. She confirmed she was in
the right hand lane.
[50]
However, she did describe the movement of traffic where it merged off
the north end of the bridge as a shuffle. She was half way over the bridge when
she was hit.
[51]
Ms. Warren estimated she was driving at 50 kph when she was hit.
She surmised this was her speed based on the pattern of driving on the bridge.
[52]
Ms. Warren did not recall her vehicle being pushed forward upon
impact. She was conscious before and after the accident.
[53]
A statement taken from Ms. Warren on February 11, 2008 (Exhibit 36)
was brought to her attention by defence counsel. In that statement, she
described pulling over to the side of the bridge because the traffic was
building. She recalled the other driver saying that there was not much damage
to the vehicle. She remembered driving off the bridge. When asked about this
information in her statement, she was surprised by it. She explained this
statement did not indicate whether she had actually recalled what had happened;
it only reflects her logical construction of what had happened.
After the Accident
[54]
The first day after the accident, Ms. Warren recalled being on the
floor in the living room and feeling as if the room was spinning. She was
unable to pick up Andrew from the ferry. She felt she needed help. She felt
pressure in her head and was uncoordinated and nauseous. She eventually went to
the Richmond General Hospital emergency. She was driven by her friend. The next
thing she remembers is being at a hotel and feeling as if she wanted to be in a
dark room and away from noise. She had a restless sleep.
[55]
In the days after the accident, Ms. Warren was still pushing
herself to perform her morning routine. She tried to make the lunches and she
could not do it, so she would prepare them at night. It would take her an hour
and a half to complete this task. Her husband was struggling to do more
driving. She took taxis to get anywhere but this caused her pain because the
seatbelt would aggravate her lower abdomen. She had to go to the bathroom a lot
and this caused her a great deal of pain.
[56]
Ms. Warren recalled being propped in order to lie down.
[57]
She was experiencing a great deal of pain across her pelvis, bladder and
back. She remembered her pelvis being swollen. She was limited in how she could
sit and lie down as a result. She suffered from basic pelvic function problems.
[58]
In the first several months, she suffered from pain and pressure in her
head directed toward her face. She could not stand noise. Ms. Warren could
not tolerate the sound of her sons concerts after the accident. She was
sensitive to the noise and could not follow the music as a narrative any longer.
[59]
She had problems with walking and became easily fatigued. She would
climb the stairs once a day. She was having difficulty sleeping because she
kept feeling the thrusting of MVA #2. She described the arousal of other
memories, including her birth pain.
[60]
Initially, she was prescribed Atavan in order to sleep. She was told to
take over-the-counter pain killers. She took a prescription-strength muscle
relaxant.
[61]
She had trouble breathing. She also maintained she had neck problems
from the beginning, specifically, difficulties with swallowing and voice level.
Around July 2008, her neck muscles became extremely painful. She consulted with
Dr. McLeod, a chiropractor, about her neck problems as well as a massage
therapist, Mike Murray.
[62]
She noticed problems with her jaw early on. It was stiff. She had
difficulty eating and ate a lot of liquid food.
[63]
From May through the summer, Ms. Warren felt her functioning improved
with regard to her pelvis and her overall pain level. She was able to walk
further. She was beginning to feel optimistic about her recovery.
[64]
Ms. Warren described setbacks in the fall after she began gardening
again. She described feeling nerve pain. She experienced delayed pain after
doing activities.
[65]
She was eventually prescribed Gabapentin to treat her nerve pain and she
had a bad reaction to it. She had three emergency hospital visits because of
this medication. She believed it caused her to experience dizziness, vision
problems and suicidal ideation.
[66]
At some point in time, which was not specified in her evidence, Ms. Warren
began experiencing panic attacks over her muscles squeezing her throat and
chest. These attacks lasted for ten to fifteen minutes.
[67]
She attempted to make a costume for Gregory on Halloween, but it turned
out a mess. She tried to participate in a limited way in the debating
competitions, but she participated only insofar as commenting on style. She did
three competitions post-accident.
[68]
She said her relationship with her children has been deeply affected by
the accidents. As she was sensitive to noise, she was constantly reminding them
to be quiet. She placed a great deal of responsibility on Andrew to watch over
his brothers and order meals.
[69]
She did not involve herself in Andrews applications for college. She described
going on a trip to see Andrews college in the U.S. She felt uneasy about being
in a foreign place. She was short-tempered and had no patience for the
presentation on the college.
[70]
Ms. Warren cannot handle a lot of movement in the car as it causes
her pain. She cannot cycle, hike or walk for long distances on her trips with
her family.
[71]
The garden is now deteriorating. She does very little housework these
days. She can cook and can sit while doing it. She cannot do vacuuming,
reaching upward or scrubbing as it causes pain to her muscles in her upper
back. She was bedridden for five days after doing some housework in 2011 and
took Tylenol with codeine.
[72]
Ms. Avila attended the house an additional two times a week in the
initial few months after the accident. She did her standard four hours with
additional hours. She did less in 2010. There were no extra hours in 2011.
[73]
Mr. Warren now pays attention to the boys school activities, which
were formerly Ms. Warrens domain.
[74]
The plaintiff used to go to events with her husband. Now he attends these
events alone. If she does go with him, she takes her own car because she gets
tired and needs to leave early. She cannot follow conversation because of the
background noise of other people talking.
[75]
She described feeling forgetful and mixed up. For instance, she would
forget to fill up the gas tank and she would miss events on the calendar.
[76]
Her intimacy with her husband eventually returned. However, she had
trouble sleeping and eventually slept apart from him. They used to spend the
evening together, discussing their day. Now she cannot be available in the
evening because she has to go to bed.
[77]
She takes half hour-long walks now. It causes her to feel pain in the upper
part of her chest and throat. She has to go slower and remain on flat paths.
She said she does not have the power to do incline paths.
[78]
Ms. Warren has consulted with a great number of health
professionals after the accident. Not all of this medical evidence is before
the Court, which is apparent in the medical reports lists of documents
reviewed and in the plaintiffs evidence. Some of these consultations were
recounted in direct evidence to provide some form of a timeline of the
development of her symptoms, although this evidence was not specifically framed
in dates. The timeline of her medical evidence seems to be a significant
difficulty in this case.
[79]
A problem arose with the proposed admission of prior statements by the
plaintiff recording her symptoms to corroborate her evidence. These were only
found to be admissible for the purpose of establishing timeline, not the
veracity of her symptoms.
[80]
I have made note of some of these health professionals Ms. Warren
says she met with post-MVA #2:
·
Dr. Posen, naturopath;
·
Dr. McLeod; beginning February 21, 2008;
·
Dr. Wilensky, psychologist; she was referred to him
immediately after MVA #2 for Posttraumatic Stress Disorder (PTSD); they
worked on containing her memories in the early days; she described some success
for this technique; initially, she was seeing Dr. Wilensky every week and
then she says she did not need to see him as much; her despair about the return
of pain in the fall of 2008 prompted her to see Dr. Wilensky again and she
continued seeing him; eventually, these sessions were designed to provide her
with support because she felt she had to hide her suffering from her family;
·
Jackie Wells, physiotherapist, pelvic functional specialist;
March 6, 2008 to September 2009; she was referred to Ms. Wells by her GP;
they worked on pelvic floor muscles; she stopped treatment because her pelvis was
improving;
·
Mr. Murray, massage therapist; she was referred to him by Dr. McKenzie.
Mr. Murray did gentle massage on the lower back; it was too painful in the
lower back; he could not massage her neck at all;
·
Steve Mah, physiotherapist, osteopath; treatment was obtained
between April 7, 2008 and June 16, 2008; she saw him for neck and jaw
symptoms upon referral by her GP; she would suffer from serious pain, dizziness
and tremors when he attempted to adjust her neck;
·
Kelli Lawson, trainer; she began sessions with her on September
8, 2008; they met until October 15, 2008; they worked on her core; Ms. Warren
claimed these exercises made her feel worse afterward, so she stopped the
exercises;
·
Dr. Loopeker, optometrist; she was having a hard time
focusing her eyes and navigating through a room; she eventually did vision
therapy with him, which improved her ability to think more quickly; she was
delayed in obtaining this treatment because she was occupied by other health
professionals;
·
Dr. Takeuchi, dentist, who referred her to a dental
specialist, Dr. Leung, who in turn advised her to attend Dr. Michele
Williams with regard to her jaw symptoms; it took a long time to schedule to
meet with Dr. Williams;
·
Dr. Michele Williams, dentist; she saw her for a series of
appointments in 2009; Dr. Williams referred her to Maria Zerjav for jaw
treatment in early 2009 but it caused her too much pain so she discontinued the
treatment; the nature of that treatment was unclear;
·
Dr. Christina Williams, gynaecologist, upon referral by her GP,
to examine her pelvis;
·
Dr. Hossack, specialist in pain management; she was referred
to Dr. Hossack by Dr. Christina Williams; she remembered seeing Dr. Hossack
in the fall of 2008; she was prescribed pain medication, but stopped taking it
because it made her feel fatigued and it interfered with her ability to drive; she
undertook a pain management program, documenting her pain and emotional
reaction to it in order to control her emotional reaction;
·
Dr. Mintz, her new family GP; she stopped seeing Dr. McKenzie
sometime after the end of 2008; she said his practice was too busy to handle
the file, which is hearsay as Dr. McKenzie was never called as a witness;
·
Dr. Hershler, pediatrist; she was referred to him in early
2009 by Dr. Mintz; she described him as her answer person; she undertook
pulsed signal therapy with Dr. Hershler, which re-opened old symptoms, and
she would go to Dr. Wilensky to cope with this pain, although eventually
she felt improved; she continued the treatment in later 2009 for her pelvis; she
felt it assisted her with walking; she also described having severe reactions
in her throat as a result, although it was not specified when this occurred;
·
Mr. Oldham, physiotherapist; his records indicate she began
seeing him in January 2010 upon referral by Dr. Hershler; after their
first session, she had to call an ambulance after experiencing a panic attack
arising from her inability to expand her ribs enough; she worked on breathing
with Mr. Oldham, which she found to be mentally challenging, but she did
progress;
·
Mr. Siquera, physiotherapist, upon referral by Mr. Oldham;
their sessions worked on improving balance, which caused her pain; it only
improved the length of time that she could walk.
Brain Lesions
[81]
A month after the accidents, a MRI scan of Ms. Warrens brain
revealed lesions on her brain. The report prepared on March 26, 2008 by Dr. Andrews,
identified 10 high signal lesions, measuring up to 8 mm in size. The MRI did
not reveal any evidence of cerebral contusion or extra-axial hemorrhage. Dr. Andrews
opined that consideration be given to the possibility of MS.
[82]
The discovery of lesions on her brain rattled Ms. Warren. She saw a
neurologist, Dr. John Stewart, for a neurological assessment.
[83]
Dr. John Stewarts report, dated April 2, 2008, was admitted as
evidence at trial. In the report, he observed that Ms. Warren was
extremely anxious and intense, and completely anhedonic.
[84]
He saw nothing to suggest cognitive abnormalities. Her neurological exam
was normal. Her reflexes, tone and power were normal. She walked normally and
had a normal Romberg test; she could also hop on either foot.
[85]
Dr. Stewart concluded the lesions did not have the appearance of a
recent brain injury. Nor were the lesions in an area of the brain that would be
suggestive of MS.
[86]
He could not comment on her pelvic symptoms (which he placed in
quotation marks) but he tended to doubt that she could have sustained damage to
that area as a result of the MVAs. He noted her pelvic ultrasound was normal.
[87]
He opined, I do believe this lady is pathologically anxious and it is
quite likely that many of her symptoms stem from that. He said a referral to a
psychiatrist seemed appropriate.
[88]
Ms. Warren also met with Dr. Weiss and Dr. Devonshire regarding
her lesions.
[89]
Dr. Devonshires evidence was not called upon for trial, although
she was originally on the plaintiffs witness list.
[90]
Dr. Weisss report was tendered as evidence, although he was not
called upon to testify. His report was prepared one year after the initial MRI
scan, on February 26, 2009.
[91]
He noted Ms. Warrens reported symptoms of severe back and pelvic
floor pain following the MVAs. He also noted Dr. Christina Williams
clinical history of Ms. Warren that documented her complaints of urinary
urgency, for which she has accommodated over the years. He observed her 2008
MRI scan, and he noted there was no evidence of concussion.
[92]
He opined, she is extremely verbal, articulate, and has excellent
recall. She appeared tense and fairly stiff in her movements.
[93]
In her physical examination, he noted that she had full range of motion
in her cervical spine. Her spine was vertical and her pelvis level. She had good
movement in her lumbosacral spine. She had excellent power. Her shoulder,
elbow, wrist and hand examination produced normal results. Her hip, knee, ankle
and foot examination were also normal, with brisk reflexes noted.
[94]
He observed: [m]any of the diagnoses she has been provided with do not
have a clear objective basis and in some senses are considered to be
controversial diagnoses following motor vehicle accidents.
[95]
He found no classic signs of MS. He organized a repeat MRI for her
brain and spine for objective evidence to rule out a demyelinating disorder.
[96]
He concluded with the following note:
As I
explained to her originally with her constellation of symptoms and her very
established ideas regarding the nature of her complaints, I would ordinarily not
attempt to provide ongoing care, as I doubt I would be able to change any of
these fixed ideas contributing to her symptoms. On the other hand, there
appears to be a good basis to ensure that she does not have at least from an
objective perspective a more significant neurological condition. I have
explained this to her and she appeared relatively content with this.
[97]
It is interesting to note Ms. Warrens explanation in direct
examination that the MRI was sought on the basis of inquiring into possible MS because
the hospital would not grant a MRI for mere soft tissue injuries.
[98]
In the second MRI, dated March 7, 2009, 15 lesions were found. The
report concluded the white matter lesions were highly suggestive of multiple
sclerosis and demyelination.
[99]
There is no evidence of follow-up with Dr. Weiss.
[100] Ms. Warren
attended the UBC MS Clinic. On July 9, 2009, the clinic cleared her for MS.
Lay Witnesses
[101] Carmen
Black provided evidence on Ms. Warrens behalf.
[102] Ms. Black
is a behavioural consultant. She has a long-standing friendship with the
plaintiff. They met in kindergarten and they have been friends ever since, even
attending first year in their undergraduate studies together.
[103] Ms. Black
testified to Ms. Warrens activities in her early years: she performed piano
and ballet; she read a great deal and she was an academic. It seems they
drifted apart in university but they reconnected once they both had children.
[104] Ms. Black
testified that Ms. Warren was a good mother. She would entrust her
children to the plaintiffs care. The families would go travelling together to
their cabins. She recalled Ms. Warrens extraordinary efforts to enrich
her childrens lives and their education. She noted that Ms. Warren was
involved in school committees; she was also the person running the home.
[105] Ms. Black
testified to the plaintiff being highly organized and social. She described her
as an easygoing woman and a kind parent. Her mental state she described as
even. She was an intelligent woman and their conversations were reciprocal.
[106] The
plaintiff and Ms. Black would go for long walks together. They would also hike
and horseback ride together. They were equally able to engage in these
activities.
[107] Ms. Black
was unaware of the MVAs until about a week after they had occurred. She was
called one evening by Ms. Warren to come over because she said she needed
help. When she attended the plaintiffs home, she found her on the couch. She
was not able to carry on a conversation in a coherent manner to explain what
had happened.
[108] A few
weeks later, Ms. Black went over to drop off her taxes at the Warrens. The
children answered the door and claimed there was no food in the house. Ms. Black
noted it was a busy work time for the husband. The plaintiff had been simply
lying down and she did not know what to do.
[109] Over the
first three months after the accident, whenever Ms. Black observed the
plaintiff she seemed exhausted and could not follow conversation. The plaintiff
seemed overwhelmed. She did make some improvement and then reached a plateau.
The plaintiff seemed discouraged.
[110] In the
first year after the accident, her mobility seemed limited. She was unable to
pick her children up from school.
[111] In 2010 –
2011, Ms. Black claimed the plaintiff was able to move around a bit
better. They would have to park close to their destinations. She wore a support
for her pelvis. She seemed to have difficulty following conversations and she was
withdrawn in group situations. She became quickly exhausted and experienced
forgetfulness. Sometimes she would tell Ms. Black the same story within
the hour and mix up the days.
[112] In
cross-examination, when asked about whether she knew the plaintiff had judged a
debating competition in 2008, Ms. Black agreed it was surprising, although
she qualified her answer by stating the plaintiff had continued to make efforts
to re-engage in the activities that she had formerly enjoyed.
[113] Ms. Black
agreed the plaintiff was articulate in specific situations and at certain times
of the day post-accident.
[114] The
plaintiffs son Andrew also testified.
[115] Andrew was
just about to turn 16 years old at the time of the plaintiffs accidents. He
was in Grade 11 and preparing for post-secondary education. He currently
attends Reed College in the U.S.
[116] When asked
about his mothers role in his life prior to the MVAs, he said his mother was
supportive of him and his brothers. He was involved in music and she helped him
apply for a number of special education programs in high school. He ultimately
decided to attend St. Georges. She helped him with his assignments. She judged
the debating club that he was involved in. He said she did not participate in
the debating club as a judge after the accidents.
[117] Andrew claimed
his mother prepared all of the meals in their home as his father was working
all the time. He recalled their family hosting Christmas celebrations on
several occasions for their extended family.
[118] His mother
seemed to have a great deal of energy. They did a large hike together one time.
His mother was sympathetic and well-grounded. He could not recall ever seeing
her depressed before the accidents. She read a lot and would read the same
books as he so that they could discuss them together. She would also read over
his textbooks to help him with his schoolwork.
[119] After the
first accident, he commented she seemed rattled and had incidental bumps and
scratches but was otherwise fine.
[120] He was
contacted two days after the second accident by his father notifying him of the
incident. He had been away at the time, touring Vancouver Island with his band.
When he first saw his mother, she was resting in bed.
[121] In the
three months following the accident, he observed the plaintiff being limited in
her functions. She spent most of her time in bed. He would have to fetch her
water for her medication. A year after the accident, his mother could engage in
conversation again but her energy seemed limited. She would become exhausted
after doing a task for half an hour and would rest for several hours afterward.
She would write everything down. She would not understand everything he said
and seemed unable to track the conversation.
[122] Ms. Warren
would not listen to his musical pieces any longer. She would occasionally try
to go to concerts but she would leave after a few minutes.
[123] His father
took on the task of driving the boys to and from school.
[124] He noted
his mother took a taxi sometimes to get to her appointments.
[125] He said it
took his mother a long time before she would go on walks again. Her first
exercise was swimming, but it took years for her to arrive at that point. In
the last six months, she has finally been able to walk with him.
[126] After the
accidents, Andrew could not get along with his mother. He found her to be
irritable. By 2009, he realized there was nothing he could do to change the circumstances
of his home and he decided to stay away as much as possible.
[127] In 2009,
Andrew began to apply for university. His mother did not assist him with his
applications. He began attending Reed College in August 2010. She joined him in
his moving trip to college in the U.S. They took the train and she seemed upset
by everything. It was a few months before he would speak to her again after
that trip.
[128] In
cross-examination, he was asked about the two-day span between the MVAs and his
fathers phone call informing him of the second accident. He explained he did
not have a cell phone at the time.
[129] Andrew
clarified that it was a few months before she started driving short distances
and a year before his mother started driving to Vancouver.
[130] He agreed his
mother may have taken his brother Stuart to a debate post-accident but he
maintained she had not participated in the debates again.
[131] Ms. Warrens
exercise journal kept for her personal trainer Ms. Lawson was put to
Andrew. It documented her walking for a half hour on October 29, 2008 and
walking for an hour off and on Halloween night. He agreed it sounded plausible.
It also documented that she had judged three half hour debates on November 1,
2008. Andrew was surprised by this note. He was further presented with a
notation she had made that she had attended his November 8, 2008 concert in
Burnaby and had sat for one and a half hours. He only offered that attending
concerts was stressful for her.
[132] Andrew was
asked about Dr. William Kochs report, dated March 14, 2008 (Exhibit 14).
[133] Briefly,
this report by Dr. Koch, psychologist, was prepared after he conducted a
psychological assessment of Ms. Warren. In his report, he qualified his
findings as a preliminary assessment that was based upon incomplete diagnostic
testing of Ms. Warren. He had no health record available to him. Ms. Warren
had been unable to meet with him at his office in Richmond so he had
interviewed her at her home. He interviewed her for a total of four and a half
hours and she attempted to complete a Personality Assessment Interview while he
was present. He found the interview had been less than productive for several
reasons: (i) her emotional distress led to excessively detailed responses; (ii)
distractions (a furnace repairman attending the home, phone calls regarding
exam schedules for her oldest son, a number of phone calls from friends and her
husband and picking up her youngest son from school). She had difficulty
completing the assessment, which was atypical. She complained about the test
and its contents. It appeared as if she was responding in a defensive manner
so as to disclose few personal faults or life difficulties. He also noted
evidence of anxiety and depressed mood. He opined that the multiple traumas in
her life that she had described to him were potentially inter-related. He gave
the tentative diagnosis of PTSD, Panic Disorder and Major Depressive Episode. He
concluded he needed to assess her more fully in a follow-up consult, which
never occurred.
[134] Defence
counsel directed Andrew specifically to Dr. Kochs note about Ms. Warren
driving Gregory to school, interrupting the interview. Andrew agreed with the
defence that this was not a short drive.
[135] Andrew
confirmed he only speaks with his mother now and again on the phone.
[136] He
confirmed he had read some of her medical legal reports.
[137] I must observe
that his evidence seemed rehearsed and many of his observations of his mothers
health post-accident were vague.
[138] Margaret Allan
is a friend of the plaintiff. She is a licensed psychologist.
[139] She first met
Ms. Warren in 2001 at the home of their former piano teacher Phyllis. She
got to know her well during the time when their piano teacher was ill. They
worked together on Phylliss estate after she passed away and settled all of
her matters. They developed a friendship out of this experience. They enjoyed
discussing books, music and politics together. She observed that Ms. Warren
read voraciously on complex subject matter.
[140] Ms. Allan
recalled the plaintiff being a capable, high-functioning woman who had
integrity. She was bright and interested in world events. She was up to date
with happenings in Vancouver. Ms. Warren was also a committed mother.
[141] Ms. Allan
did not observe any grief for Phylliss death interfering with Ms. Warrens
ability to function.
[142] Ms. Allan
first saw Ms. Warren a few weeks after the MVAs. She noted a dramatic
change. Before, she had been a bundle of energy. After the accident, she
seemed withdrawn, pale and rigid. Ms. Warren had trouble focusing in
conversation and was sensitive to light and noise. She seemed frustrated. Since
the accident, they no longer attend concerts together.
[143] In the
first year after the MVAs, Ms. Allan observed Ms. Warren having a
difficult time following the conversation. The scope of their conversation became
limited. Ms. Allan described Ms. Warren as not the same.
[144] In
cross-examination, Ms. Allan commented that Ms. Warren had expressed an
intention to return to work. She was unaware of Ms. Warrens work
experience before the accidents.
[145] Ms. Allan
informed the Court that in the past year and a half (since October 2010), she has
suffered from shingles so she has not been out of her home in that time.
[146] Ms. Allan
confirmed that Ms. Warren had told her that MVA #2 was a severe impact collision
and that she had hit the railing on the bridge. She maintained that Ms. Warren
had not told her that she hit her head on the windshield, despite her statement
to the contrary in an earlier record taken from her by a defence counsel representative.
[147] Thelma Avila,
Ms. Warrens housekeeper, testified. She was at times difficult to
understand.
[148] She
confirmed the plaintiff was always involved in the housework and the gardening.
The plaintiff would even help her out.
[149] She
commented generally on the change in Ms. Warren after the accidents. She
organized the kitchen to help her with reaching items she needed in the
kitchen.
[150] It is not
clear to what extent Ms. Warren participated in the housework after the
accidents.
[151] Before the
accident, Ms. Avila worked four hours once a week, arriving at 9:00 a.m.
After the accident, she was working three days a week, two hours at a time. She
claimed this lasted for three months. After that time, Ms. Avila came two
days a week but she did not specify her hours.
[152] Brent Warren,
the plaintiffs husband, also testified. Mr. Warren is a Chartered
Accountant. He met Ms. Warren in 1985 and they married four years later. Prior
to having children, they skied, golfed, biked and took show horse riding
lessons together.
[153] He
testified to Ms. Warren being very involved in the boys schooling. Her
son Andrew in particular needed a great deal of attention. Ms. Warren
would go to all school-related and extracurricular activities for the boys. She
conducted outdoor supervision for the school. She sat on school committees.
[154] In the
year prior to the MVAs, Mr. Warren described his wife as being in good
physical shape. She attended a gym several times a week and took yoga classes. She
did snorkelling on the last family trip. She hiked and camped with the family
on occasion.
[155] Ms. Warren
had been engaged in Mr. Warrens accounting business prior to the MVAs. He
said she coordinated the social event planning aspects of his business. On one
occasion she provided marketing advice to a client. Mr. Warren would bill her
for her work. In fact, he testified that she was still partaking in this work
for him (he spoke to her answering client calls for him at home).
[156] Ms. Warren
had also worked with the widow of one of his clients to aid in the marketing
and sale of her past husbands art work.
[157] Mr. Warren
said it was a tough decision for his wife to leave her job at ACNielsen to care
for their children.
[158] Mr. Warren
did remember MVA #1 being a traumatic event. He did not recall when he
discovered that accident had occurred. He did, however, remember her
complaining of pain in her lower back. He thought she had consulted with a
chiropractor that day.
[159] Mr. Warren
was at the office when he heard about MVA #2. When he arrived to meet Ms. Warren
at the childrens school, he observed her sitting down looking scared. She
seemed confused and unstable. They attended Dr. McKenzies office.
[160] He said Ms. Warren
was unable to get out of bed the following day. He made the lunches and
breakfasts.
[161] He observed
that her overall condition was poor after the accidents. In the subsequent few
weeks, she would not be awake past 4:30 p.m.
[162] Mr. Warren
said her symptoms actually became worse with time. She would glaze over in
conversations. The family had to keep the noise level down. Her overall
functioning seemed low. Mr. Warren had to step up and take on the tasks of
making meals and driving the kids around.
[163] Mr. Warren
had difficulty recalling if his wifes symptoms changed after one month. He
recalled that eventually she began helping out with lunch-making in the morning.
She would then go back to bed.
[164] In 2009,
he said Ms. Warren attempted to do basic housework. She seemed exhausted
and in pain from this work. On the Saturday when he was at home, he would
observe her coordinating household work and attempting to participate in it. This
involvement would occur in the morning, whereas prior to the accident, she
would be engaged in household work throughout the day. If he spoke to her, she
would give him blank looks.
[165] She would
be easily distracted and she was forgetful.
[166] In 2010
and 2011, he said it was hard to say if there was any improvement in his wifes
health. Ms. Warren was not engaging in any educational oversight for the
boys. Mr. Warren now deals with their schooling. If she tried, she would
get frustrated.
[167] Ms. Warrens
injuries have removed joy from their family relationship. They no longer
entertain relatives and friends. Her relationship with her children is off and
on because of changes in her mood.
The Plaintiffs Medical
Evidence
[168] A great number
of expert witnesses presented evidence to this Court. I note that despite the volumes
of expert testimony provided to the Court, there are gaps in the medical
evidence presented to the Court.
[169] Not all of
the plaintiffs expert witnesses were helpful to the Court, particularly on the
issue of causation.
[170] I also
note the defences objection to the admission of the evidence of Dr. Blaskovich
at trial. The defence noted the facts and assumptions upon which his report was
founded were not identified. His qualifications were not set out. The instructions
from counsel to the expert were not disclosed. The doctor did not set out the
research he was relying upon in forming his opinion. Dr. Blaskovich failed
to certify that as an expert he was aware that he is not an advocate. Defence
asserted that Dr. Blaskovich gave opinions on matters that were beyond his
area of expertise. He also made improper comments in the report that amounted
to advocacy.
[171] I informed
counsel for the plaintiff that I would not give any weight to Dr. Blaskovichs
report; but he could proceed if he wished. The plaintiff decided not to proceed
with entering the report into evidence and examining Dr. Blaskovich.
A. Dr. Marshall
Wilensky
[172] Dr. Wilensky
is a clinical psychologist practicing in Vancouver and was qualified as an
expert in the diagnosis and treatment of PTSD.
[173] His first meeting
with Ms. Warren was on March 10, 2008. He testified he received a brief
history from her of the two MVAs. He then administered the diagnostic criteria
(DSM-IV) for PTSD, which produced results that indicated she indeed suffered
from PTSD. He noted that her self-reported psychological concerns confirmed
this diagnoses. She felt watchful and on guard. Reminders of the MVAs caused her
to experience physical reactions. She had trouble sleeping. She also reported
difficulty in concentrating. Re-experiencing the accidents, avoidance
strategies to suppress feelings and hyper-arousal were all indicative, in his
opinion, of PTSD.
[174] Dr. Wilensky
prepared a report, dated September 1, 2011. In this report, Dr. Wilensky
concludes Ms. Warren suffers from Major Depressive Episode and Posttraumatic
Stress Disorder – Chronic. He does not offer any opinion on whether her PTSD
condition has varied since the initial consultation he had with her in 2008.
[175] He
summarizes his opinion on her condition in the report as follows:
Ms. Warren
was injured in the motor vehicle accidents of February 2008. I will leave the
descriptions of her physical injuries to her medical practitioners. The
physical injuries appear to have had a significant deleterious effect upon
life.
Concomitant
with the physical injuries has been the complicated and often humiliating and
painful process of diagnosing and arranging treatment for those injuries. The
ongoing psychological distress from the investigations and iatrogenic aspects
of treatment are therefore also caused by the accidents. For example, had
it not been for the accidents, Ms. Warren would not have had an MRI of her
brain that raised the possibility of multiple sclerosis … there has been considerable
emotional distress associated with further investigations and the possibility
of the illness being present.
It would be useful to know the results of the
neuropsychological assessment and have a repeat assessment to evaluate any
change. More than two years have
passed since the initial assessment and a second date point would provide
prognostic information.
[Emphasis added.]
[176] Based on
his opinion, it seems her psychological distress stemmed from the
investigations undertaken into her health post-accidents. He specifically noted
that he could not draw any conclusions about whether she had in fact suffered
from a brain injury as a result of the MVAs.
[177] Dr. Wilensky
further observed:
These
illnesses are probably a result of the combination of accidents in quick
succession. Her experience of unusual autonomic system and postural effects
documented by Welcome Back, Dr. Mintz and Dr. Hershler has also been terrifying
for her and has served to exacerbate the already present [PTSD] and Depression.
[178] In
cross-examination, Dr. Wilensky admitted his September 2011 report was
based entirely upon the patients version of the history of her health.
[179] He confirmed
the main criteria for PTSD is exposure to a traumatic event. It seems that
traumatic event has broad meaning. He acknowledged that MVA #2 was not
necessarily traumatic in and of itself. He explained that the focus of the
diagnosis of PTSD is not the event itself but the persons response to the
event.
[180] He
confirmed that October 2008 was the last time he administered the itemized
diagnostic criteria for PTSD upon Ms. Warren. Significantly, these tests
were administered regarding the distressing events of MVA (without noting
which one) and her sons birth. His clinical notations revealed their
discussions of non-MVA traumatic events.
[181] The last
time Dr. Wilensky consulted with Ms. Warren was in August 2011. This
consult was over the telephone; he prepared his report right after. Before that
consult, he had met with her in person in February 2011.
[182] Dr. Wilensky
confirmed that as of the date of his report, the plaintiff still fulfilled the
diagnostic criteria for PTSD and he disagreed with Dr. Ancills conclusion
that she did not. This is despite the fact that he testified the last time he
administered the diagnostic test with respect to the MVAs was in October 2008.
[183] He
confirmed that he had not supplied the criteria for diagnosing a major
depressive disorder to the Court. He confirmed that he had only diagnosed her
with this condition in August 2011.
B. Dr. Raymond
John Ancill
[184] Dr. Ancill
has been a psychiatrist since 1980 and he is licensed to practice in British
Columbia. He was qualified as an expert in psychiatry and mild traumatic brain
injury.
[185] Dr. Ancill
examined Ms. and Mr. Warren on July 13, 2011. Dr. Ancill
prepared a report on August 11, 2011 following that consultation for this trial.
The documents he relied upon in forming his opinion were also noted. He
clarified in cross-examination that he did not read any of these documents
before his consultation with Ms. Warren, including her statement dated
August 9.
[186] Her
self-report of MVA #2 was summarized as follows:
She
stated that she was driving north on the Arthur Laing Bridge and she was in the
Granville Street Exit lane around 3:20pm. Suddenly, she was struck violently
from behind – she estimated that she was moving at 50kph.
She
recalled the collision, seeing the railings at the side of the bridge and being
forced towards them.
[187] He formed
the following opinion:
Mrs. Warren
was injured in the MVAs of February 2008 and presents 41 months later with the
persistence of a wide range of physical, functional, cognitive and emotional
symptoms that were not present prior to the accident in question. …
In
my opinion, based on the clinical history I obtained, my examination and my
review of the records, Mrs. Warren likely sustained a concussion and
suffered a mild traumatic brain injury in the 2nd accident.
…
She
reported symptoms of an acute concussion and has gone to develop a persistent
post-concussion syndrome.
[188] He
clarified in direct examination that the severe nature of MVA #2 indicated she
suffered a concussive injury.
[189] Dr. Ancill
defined a concussion as diffuse damage to nerve cells and fibers ….
[190] The basis
for his finding that Ms. Warren met the criteria for having sustained a
mild traumatic brain injury, as described by the American Centre for Disease
Control (CDC), was based on the DSM-IV classification criteria, set out in
Appendix 4 to his report. He qualifies the reliability of this measurement
criteria by stating: [h]owever, these are not objective evidence of a brain
injury and I would recommend neuropsychological testing once the pain and
depression have been addressed … .
[191] In
response to the question of whether the CDC required positive MRI findings of a
mild traumatic brain injury, he said No.
[192] He
continued:
Although
for the purposes of medical nomenclature any brain injury would be classified
as mild, it should be noted that the term mild brain injury is a misnomer.
Sequelae include problems in cognition, behavior, the constellation of signs
and symptoms that make up the post-concussive syndrome, and other
psychopathology. These problems cause a surprisingly high rate of disability
and have certainly resulted in a significant disability to Mrs. Warren,
although it is not clear how much the residual effects of a [mild traumatic
brain injury] are contributing to this.
[193] Based on
the DSM-IV criteria, Dr. Ancill diagnosed Ms. Warren with a chronic
cognitive disorder, not otherwise specified.
[194] In
examination in chief, Dr. Ancill explained that the DSM-IV classification
criteria are used for convenience and commonality within the medical profession
─ it is not an absolute diagnostic system.
[195] Other general
comments of note in his report are as follows:
The
Post-Concussion Syndrome is nonspecific and will also emerge after other
trauma. Depression, anxiety and pain will also contribute to these symptoms and
act as symptom amplifiers. In this case, Mrs. Warrens current symptoms
are likely being affected by her pain, anxiety and depression. Therefore, while
all her complaints result from the accident in question, it is not possible to
accurately apportion the contribution of each etiology to each symptom.
…
although there is controversy as to causation, it is generally accepted that
the post-concussion syndrome occurs and can become chronic and debilitating in
a small proportion of patients, especially those who have risk factors.
[196] Dr. Ancill
was of the opinion that Ms. Warren had several indicators of risk: her
sex, age, her dizziness symptom that has persisted and her psychiatric symptoms
that have continued.
[197] Dr. Ancill
clarified that the post-concussion syndrome from which Ms. Warren suffers
is not in itself specific and it does not in itself diagnose a brain injury. He
explained that a brain injury will improve over time. The decline of a
patients condition over time will suggest there is another condition at play. He
explained that the only way to isolate whether Ms. Warren was suffering
from symptoms of a brain injury would be to address the symptoms of depression
and pain.
[198] When asked
about the scientific basis for these risk factors, Dr. Ancill explained it
was based on generally accepted medical facts and his experience.
[199] Dr. Ancill
also observed that Ms. Warren reported neuropsychiatric complaints that
are consistent with a brain injury, confirmed by her husband. In his
examination in chief, Dr. Ancill clarified that these psychiatric
complaints are consistent with patients who have suffered a concussive injury,
but they are not diagnostic or specific. He explained that the most common
presenting symptom of a brain injury is fatigue that progresses as the day goes
on.
[200] Dr. Ancill
was of the opinion that Ms. Warren suffered from a pain disorder
associated with her psychological state. He explained in direct examination
that this disorder was psychiatric and arose from a fixation on physical
symptoms, which might not be proportional to the actual physical symptoms. He
did not make any findings about her physical symptoms.
[201] Based on
the Hamilton Depression Rating Scale, Dr. Ancill diagnosed Ms. Warren
with mild major depression.
[202] Dr. Ancill
also opined:
… Mrs. Warren
does not suffer from PTSD or a panic disorder at this time and I would defer to
Dr. Koch to comment on her mental state as it was closer to the time of
the accidents.
[203] On the
issue of causation, he concluded:
However,
but for the accidents in question, I can find no other reasonable clinical
cause of Mrs. Warrens current symptoms and functional impairments.
According to the information available to me, she was functioning well prior to
the accident and was both medically and psychiatrically in good health.
I
could not establish a clinical history consistent with a diagnosis of multiple
sclerosis but I would defer to other experts to comment on this further. The
main indicator of such a diagnosis appears to be based solely on the two
abnormal MRIs.
[204] He
considered her prognosis for recovery poor and he said it was unclear as to
whether symptomatic improvement would translate into a sufficient recovery to
return to employment.
[205] He opined:
There
seems general agreement among the experts who have examined Mrs. Warren
that she suffered from emotional and psychological consequences of the
accidents and I am in agreement with this. These problems have persisted and
are themselves disabling. I am not able to estimate the residual and current
contribution, if any, from a mild brain injury.
[206] In his
examination in chief, he acknowledged that he did not have the benefit of
referring to any neuropsychological testing when preparing his report.
[207] In cross-examination,
Dr. Ancill confirmed that if a persons symptoms became progressively
worse after a mild traumatic brain injury, there is likely another explanation
for the symptoms, including the possibility of a progressive neurological
disease.
[208] He agreed
with the principle put to him by defence counsel that symptoms of [traumatic
brain injury] gradually improve and he explained that he had a practice of
telling his patients in the first year of consultation that they have a good
chance of recovery. He also agreed with the proposition put to him by defence
counsel that if a person has symptoms that are consistent with a concussion,
those symptoms will not necessarily prove the person sustained a head injury.
In other words, symptoms of concussion are non-specific. He drew defence
counsels attention to a statement he made in his report that post-concussion
syndrome is non-specific and not diagnostic of a brain injury.
[209] He
rejected the proposition put to him by counsel that the severity of [traumatic
brain injury] must be defined by the acute injury characteristics and not by
the severity of symptoms at random points after the trauma, stating I define
severity as the outcome, not the income.
[210] Dr. Ancill
declined to accept a defined statistic for the number of persons who suffer
from a traumatic brain injury with ongoing effects. He said his clinical practice
is not about percentages, but rather, individual patients.
[211] The issue
of distinguishing between concussions and mild traumatic brain injuries was
also raised in cross-examination. Dr. Ancill explained that a concussion
is a subset of mild traumatic brain injury, since there are other mechanisms that
can produce mild traumatic brain injury.
[212] Dr. Ancill
affirmed that the majority of major depressions are not associated with a known
organic brain problem.
[213] Dr. Ancill
was not told by Ms. Warren about her friend having cancer in 2009, about
her father being in a motor vehicle accident in 2009 or of her reaction to the
discovery of lesions in her brain in 2008. He was also not told about traumatic
experiences in her childhood and youth. He agreed that it would be alarming for
a person to discover a hole in their brain. However, he maintained that there
was nothing in the materials supplied to him that would suggest Ms. Warren
had a psychiatric condition prior to the accident.
[214] He confirmed
he understood the meaning of iatrogenic symptoms, defining it as
doctor-caused symptoms.
[215] In regard
to the risk factors he identified in Ms. Warren, he qualified that there
is a statistically small difference between men and women that is considered to
be significant.
[216] Dr. Ancill
agreed he had reviewed Dr. Turnbulls report. When asked about Dr. Turnbulls
note that [o]n examination I found [Ms. Warren] to be bright, alert, and
cheerful, Dr. Ancill maintained she was depressed when she saw him. He
did not take the report as a detailed mental state examination on the basis of
his knowledge of neurosurgeon training.
[217] Dr. Ancill
agreed that when he takes a patients history, he relies on what he is being
told. Later, when defence counsel again raised Dr. Turnbulls report, Dr. Ancill
stated he did not rely upon this report at all. He was of the opinion that neurological
deficits might not appear in cases of mild traumatic brain injury. In that
sense, Dr. Turnbulls findings did not rule out the possibility that Ms. Warren
suffered from a mild traumatic brain injury.
[218] Dr. Ancill
agreed there are endless variations to the manifestations of MS, although it
will generally be expressed peripherally.
[219] When asked
about his reports notation that her immediate post-accident memory is
fragmented and discontinuous, he opined that Ms. Warren had suffered
post-traumatic amnesia.
[220] Dr. Ancill
agreed the statement he had accepted from Ms. Warren was reasonably
articulate.
[221] He did not
note any other possible sources of trauma based on his interviews with the
plaintiff.
C. Andre Siquera
[222] Mr. Siquera
is a physiotherapist. He did not testify as an expert witness. His testimony
was limited to his observations of the plaintiff and the physiotherapy
treatment upon the plaintiff. Their sessions usually last for about 40 to 45
minutes.
[223] Mr. Siquera
first saw Ms. Warren on April 19, 2011, upon referral from Dr. Hershler.
He continued to treat her at the time of trial.
[224] On the
initial consultations, he conducted isometric tests on her neck muscles with
some core weakness in her back. He had to stop the test because of the decrease
in her ability to swallow.
[225] She had
described to Mr. Siquera a squeezed throat, difficulty breathing,
difficulty responding to questions and shaking. It took her time to recover. He
also found she could not follow certain commands. He commented that this
problem was something that he had never seen before. In cross-examination, it
was confirmed that he has treated thousands of patients.
[226] He decided
to treat her as if she was a stroke patient, avoiding exercises that related to
the neck.
[227] He
commented that she seemed motivated to get better.
[228] She would
suffer from fatigue and dizziness when she engaged in the exercises. Sometimes
he would have to repeat explanations on how to perform an exercise. He would
have to explain, demonstrate and then guide her.
[229] She was
able to perform all of the exercises testing for injury in the muscle for the rotator
cuff. She did not have any problems with her leg exercises. She did not display
any indication of back pain. She was also able to stand up and sit down with
her eyes closed. She was able to conduct rowing exercises, engaging her arms,
shoulders and back. No episodes of choking arose from those exercises.
[230] Mr. Siquera
had instructed Ms. Warren to repeat her exercises at home. She did show
some improvement, indicating to Mr. Siquera that she was doing her homework.
He did observe a decline in her ability to perform exercises that required the
closing of the eyes but it seems that she simply refused to perform them.
[231] He
confirmed that typically whiplash injuries improve over time and that a
physiotherapist can accelerate that recovery.
[232] When Dr. Turnbulls
report was put to Mr. Siquera, he disagreed with the doctors observation
that she had appeared agile.
D. Dr. Heather
McLeod
[233] Dr. McLeod
is a chiropractor who prepared a medical report on Ms. Warren dated August
18, 2011. She was qualified as an expert on chiropractic medicine.
[234] Ms. Warren
attended Dr. McLeods chiropractic clinic before the MVAs. She began
visiting the clinic in February 1997 for treatment of her lower back pain
caused by her last trimester of pregnancy. She was seen 19 times in 1997, with
a gradual decline in the number of consultations per year. She stopped attending
the clinic in 2003.
[235] Ms. Warren
next saw Dr. McLeod on February 21 and 22, 2008 after the MVAs. The plaintiff
continued attending the clinic until April 22, 2009. It was noted in her report
that Ms. Warren experienced gradual improvement. Contrarily, in
cross-examination, Dr. McLeod said that as of December 2008, she did not
note any improvement in Ms. Warrens condition.
[236] Ms. Warren
next attended Dr. McLeod on August 11, 2011. The report was prepared after
this meeting.
[237] In her
report, Dr. McLeod took some notes of the patients self-reported symptoms
post-MVAs, which is referred to in the History portion of her report:
The
patient stated she felt like she had just given birth. She was unable to sit
comfortably. She stated both her arms and legs were intermittently numb and was
experiencing moderate facial pain. Mrs. Warren also stated she felt
anxious, disoriented, fatigued easily and had difficulty sleeping due to the
pelvic pain.
[238] Her
initial examination findings of Ms. Warren are not dated. They make the
following observations:
Examination
of Spine:
Cervical
Spine:
Unable
to properly assess neck as patient was in too much discomfort. However, global
ranges of motion of cervical spine were decreased.
Lower
Back:
·
A scoliosis was present.
·
Decreased ranges of motion of both
sacral-iliac joints.
·
Right short leg.
·
Acute tenderness with palpation
pressure over symphysis pubis.
·
Decreased extension of both legs.
·
Decreased bilateral lateral
bending (sideways).
·
Decreased forward flexion caused
pain to peritoneum.
·
Decreased rotation of pelvis in
both directions.
[239] The report
also documents her examination findings of Ms. Warren in 2011.
[240] Dr. McLeod
observed that Ms. Warren continued to have problems with her neck and back
but she noted an improvement in her condition. She noted that Ms. Warrens
greatest concern was of extending her neck backwards, which supposedly caused dizziness
and blackouts. Ms. Warren had also complained to Dr. McLeod of
moderate cognitive problems, sensitivity to noise and tinnitus. Ms. Warren
reported to Dr. McLeod that she would like to return to her career in
marketing but she [felt] she [was] not capable or functioning at a high enough
level.
[241] In the
physical exam, it was noted:
Physical Examinations:
·
A scoliosis was observed.
Cervical
Spine:
·
Decreased forward bending of neck.
·
Decreased lateral bending and
rotation of neck especially to the right side.
·
Unable to extend neck backward.
Lower
Spine
·
Pain and decreased mobility of
right hip in figure 4 position.
·
Decreased range of motion in right
lateral bending of lumbar spine.
·
Decreased left rotation and left
lateral bending of lumbar spine.
·
Decreased ranges of motion of both
sacro-iliac joints.
·
Positive bilateral Elys test
(patient on stomach both knees bent to buttocks) caused pain to lumbro-sacral
area.
[242] The report
noted that two days following the examination conducted August 11, 2011, Ms. Warren
reported an inflammation of pain to Dr. McLeod:
After
this examination Mrs. Warren stated she woke up at 4 am with pain up and
down her spine, ears ringing more loudly than usual, head and jaw pain. A
burning lower back pain was present. Her overall pain level and skull pain at
this time was an 8 out of 10. The chest also tightened up and a choking
sensation was present. These symptoms lasted for approximately 48 hours.
[243] She
provided the following diagnosis:
Mrs. Warren
has sustained a moderate to severe whiplash injury to her upper back and neck,
as well as a moderate to severe low back/pelvic strain/sprain complex. These
injuries were caused by the motor vehicle accidents of February 5 and 7, 2008
as she was in good health prior to these accidents. An MRI of June 6, 2011
demonstrated a diminished limit in extension. The C5-6 and C6-7 disc
protrusions, are causing a slight flattening of the right anterior cord
contour. Also mild narrowing of C5-7 foramina was found. This could account for
the neuralgia in the forearms and neck pain. At L5 degeneration disc disease
was seen. This could account for the neuralgia in the legs and lower back pain.
[244] She gave
the following recommendations:
1) A
neuropsychologist assessment to assess cognitive impairments and possible
effects emanating from the discal dissections into the spinal cord at levels C5
to C7, also a nerve conduction test is also recommended for the same levels.
2) A
digital motion X-ray (DMX) should be done which is a lose (sic) dose fluoroscopic
study for the cervical spine. This will evaluate further ligamentous
instability as the MRI of June 24, 2011 has found 1-2mm translation at C4-5 on
both flexion and extension.
3)
The persistent dizziness with the occasional blackouts produced with extension
of the head and neck requires further evaluation, possibly a vascular
ultrasound.
4) Mrs. Warren
must continue to have exercise rehab with an experienced trainer.
[245] On August
19, 2011, Dr. McLeod addressed a letter to Dr. Elliot Mintz
recommending that Ms. Warren undergo a neurological assessment, a digital
motion x-ray on the cervical spine and a vascular ultrasound to investigate her
experience of persistent dizziness.
[246] In cross-examination,
Dr. McLeod explained that if she suspects malingering, she will
incorporate exercises into the examination to determine whether in fact the
patient is in fact experiencing pain.
[247] In
cross-examination, when asked about her notation of Ms. Warren shuddering
on the examination table and tingling in December 2008, Dr. McLeod said
she informed Ms. Warren it was possibly a neurological issue outside the
scope of her practice. Nonetheless, the plaintiff did continue to see Dr. McLeod
in 2009.
[248] Dr. McLeod
confirmed she did not hear from Ms. Warren at all between April 2009 and
August 2011. Dr. McLeod could not say when Ms. Warrens neck began to
develop serious pain. She believed Ms. Warrens neck symptoms were beyond
her scope of expertise. She had not described passing out with neck extension
until 2011. The passing out was a later symptom, but Dr. McLeod had noted
dizziness in the earlier sessions of 2008 – 2009. Dr. McLeod never saw her
extend her neck.
E. Dr. Cecil
Hershler
[249] Dr. Hershler
is a physiatrist and he was qualified as an expert in that realm of practice. He
prepared two medical legal opinions and was cross-examined on them.
[250] The first
medical legal opinion was prepared on June 2, 2009 after a single visit with Ms. Warren
on May 28, 2009.
[251] Dr. Hershler
at the outset noted that Ms. Warren did not have any noteworthy medical
issues to report prior to the MVAs. She was a fully functioning woman.
[252] In
recounting the details of the MVAs, Dr. Hershler noted in regard to MVA #1,
[s]he was ultimately able to drive the Ford away from the accident site, but
was aware of pain in the sacral region. He noted Ms. Warren had reported
seeing a chiropractor a few hours after the first accident and she had also seen
her family doctor.
[253] After MVA
#2, Dr. Hershler noted that Ms. Warren had reported experiencing pain
over the posterior region of the head. She had felt shock and the sense of
being disconnected as well as dizziness.
[254] He then
noted that over time Ms. Warren suffered from a persistent headache,
increased pressure through the face, anxiety, irritability, hypersensitivity to
light and sound and loss of short term memory. She reported her voice being
weaker and her vision being affected. She experienced pain in the right side of
her neck, shoulder, upper and lower back as well as the sacrum and the coccyx.
She also experienced tingling in the arms and legs and ringing in the ears.
[255] He noted:
X-rays
of the cervical and lumbar spines, sacrum and coccyx (February 20, 2008) were
normal, with only mild degenerative changes noted at C5/6 and C6/7. An MRI of
the head (March 2008) showed no evidence of trauma.
[256] He
continued by recording her observations of improvements:
Over
the past 15 months, all of her symptoms have persisted to some degree. The only
exception being a major improvement in terms of cognitive abilities. Her
memory, comprehension and ability to read have improved. Sensitivity to light
and sound has resolved. The ringing in the ears has lessened. The numbness and
tingling in the body has lessened. She initially had extreme bladder urgency
and frequency post-accidents, but this has normalized. Anxiety has also
improved.
[257] He
confirmed that the plaintiff had informed him of these improvements and he
affirmed that her report was consistent with the normal course of recovery.
[258] Ms. Warren
had reported to him that she was only 50 to 60% recovered. She said her left
leg gave way; she was only able to tolerate walking for half an hour. She had
resumed her domestic tasks with adjustments to accommodate her pain. Her sleep had
improved and she was on no medication at the time.
[259] She had persistent
pain in her neck and lower back, generally on the right side.
[260] On the
point of causation, Dr. Hershler noted: [t]hese symptoms date from the
first motor vehicle accident on February 5, 2008 and were subsequently
aggravated by a second accident on February 7, 2008.
[261] In the
physical examination conducted on Ms. Warren, Dr. Hershler noted that
[m]ovements of the lumbar spine were fluid, but she complained of pain in the
sacrum, right coccyx and right sacroiliac joint during extension. Palpations
of the cervical spine produced similar results. There was evidence of soft
tissue swelling over the sacrum and the sacrum being more prominent than
normal. Ms. Warren had a restricted rotation of the neck of 20%.
[262] Dr. Hershler
concluded the physical findings and clinical history were consistent with
post-concussion syndrome, post-traumatic stress syndrome, severe soft tissue
injury to the cervical spine, severe soft tissue injury to the lumbar spine and
severe injury to the sacrum, right sacroiliac joint and pelvic floor ligaments.
He also found there did not appear to be evidence of any neurological injury. He
recommended reassessment.
[263] In his
second medical legal opinion, dated October 18, 2011, Dr. Hershler reported
on three follow-up sessions he had with Ms. Warren in September 2010,
March 2011 and August 2011. I note that the first report was also cut and pasted
into the second report, and his subsequent findings were simply added. He
provides the same diagnosis despite his notations of changes in her condition.
[264] Dr. Hershler
noted that the MRI he had recommended for her lumbar spine, sacrum and coccyx
in the May 2009 meeting had been undertaken on October 8, 2009. This MRI had
revealed mild bilateral facet joint hypertrophy at L4/5 with no other finding.
She had a posterior central disc bulge with a right annular tear, displacing
the S1 nerve root. In other words, her results were essentially normal.
[265] He noted that
Ms. Warren had experienced significant improvements in the pain intensity
in her neck and upper body since their last consultation after one year of
pulsed electromagnetic field therapy. Dr. Hershler noted that prior to the
administration of this therapy, Ms. Warren was unable to walk at all. He
observed that she is now able to walk a 15-minute loop with increased stride. Dr. Hershler
was of the view that there was no need for a repeat MRI in light of these
improvements.
[266] He
explained in cross-examination that in his testimony his reference to her being
unable to walk was not meant to suggest that she could not walk at all.
[267] Dr. Hershler
noted that upon physical examination, Ms. Warren had major improvement
generally in all the areas where she had previously complained of pain. She had
complete range of rotation with limitations in extension at 50%. Notably, she
could now stand on the left leg and support her body weight.
[268] In the
follow-up conducted on March 21, 2011, the most significant finding noted by Dr. Hershler
was that Ms. Warren did not like to be touched in the soft tissue area of
the neck as it cause[d] constriction in the throat and she had difficulty
with any type of backward movement or extension of the head. This neck pain
was persistent in the follow-up session conducted on August 25, 2011. In the
physical examination, Dr. Hershler observed: [a]s the neck was titled
backwards, she became more anxious and ultimately experienced a choking
feeling, and had difficulty with breathing. She also complained of dizziness. His
prognosis for improvement was poor in regard to the neck.
[269] He
conceded that one would expect to find hemosiderin if there was a traumatic
brain injury. He limited his opinion with regard to the MRI results examining
the brain by stating it was beyond his expertise. He did say these lesions
could be asymptomatic, but he would defer to a radiologist.
F. Alice Rose
[270] Ms. Rose
is an occupational therapist, working for GF Strong Rehabilitation Centre. She
met with Ms. Warren on April 11, 2008. It was a one-time meeting, about
three hours in length, estimated on the basis of her usual practice. She
prepared an early response brain injury service report as well as a letter to Ms. Warrens
lawyer on that same date.
[271] Ms. Rose
did not testify as an expert witness. She was examined upon her report and her
letter to counsel. She confirmed in her examination in chief she had no
recollection of the meeting.
[272] In her
report, Ms. Rose made notations in relation to the MVA #2; she does not
refer anywhere to MVA #1. It was noted that on March 31, 2008, Ms. Warren
attended the Vancouver General Hospital due to persisting symptoms.
[273] Ms. Rose
noted:
Impairments
·
No loss of memory for events
immediately before or after the accident
·
Dazed, disoriented and confused at
the scene; she felt panicky and did not know what to do; when offered a glass
of water at the school she poured it on her blouse as she tried to drink it;
she had difficulty formulating her thoughts
·
MRI Scan at Canadian
Diagnostics in March did not show any evidence of acute intracranial pathology
·
Multi-trauma (soft tissue injuries
in cervical, thoracic and pelvic areas)
·
Acute post-traumatic stress
reaction
[Underline emphasis added.]
[274] She
further noted:
Disabilities/Client
Concerns
Initially
Camilla experienced significant sleep disruption and light sensitivity but this
has recently improved
·
Camilla is continuing to
experience the following symptoms:
·
Often gets a mild headache over
her right temple as well as some TMJ discomfort
·
Cognitive and physical fatigue,
tiring more easily
·
Hypersensitive to noise
·
Feeling sad, tearful, anxious and
worried about her symptoms and her recovery
·
Forgetfulness, poor memory
·
Difficulties with selective,
focused and divided attention
·
Slowed processing, taking longer
to think
·
Becomes overwhelmed and
disoriented with multiple stimuli especially in new situations
·
Difficulty reading
…
[275] She
commented:
Factors that may contribute to Symptom Prolongation or
Delay Return to Work
Typically symptoms of mild brain injury show
significant improvement in the first three months following injury, with most
people recovering within six months. Factors that could prolong the duration of
Camillas symptoms include
·
Multi trauma
·
Anxiety
·
Litigation
·
Demanding responsibilities
[276] In Ms. Roses
letter to plaintiffs counsel, she noted that Ms. Warren was referred to
the Early Response Brain Injury Service at GF Strong by the Emergency
Department at the Vancouver General Hospital. She also noted that Ms. Warren
had sustained multi-trauma, a concussion and emotional trauma as a result of a
motor vehicle accident on February 7, 2008.
[277] She opined:
Camilla
is experiencing physiological (fatigue, hypersensitivity to noise, headaches),
cognitive (difficulties with attention, concentration, multi-tasking, reading,
memory and processing) and emotional (anxiety) symptoms. It appears that her
symptoms are escalated by both a) situational demands that exceed her cognitive
or physical capacity and b) psychological factors including stress.
[278] She
recommended private occupational therapy services to develop strategies for
improving cognitive-executive functions, planning a structured routine and an
ergonomic assessment.
[279] In her
examination in chief, Ms. Rose explained that she is not able to diagnose
a brain injury. The purpose of the impairments heading is to record self-reported
impairments.
[280] In
cross-examination, Ms. Rose explained that under the headings
Disabilities/Clients Concerns, her observations were also based on
self-reporting, which she accepts on face value. She clarified that the section
addressing Factors that may contribute to Symptom Prolongation or Delay Return
to Work summarized her conclusions drawn from scientific literature.
[281] When asked
if persons have headaches and cognitive problems three months after a mild
brain injury, it was her understanding that there might be other complicating
health variables.
[282] She agreed
that symptoms are aggravated by stress.
G. Dr. Kevin
Loopeker
[283] Dr. Loopeker
is an optometrist. The admissibility of his evidence was challenged by the
defence with respect to his opinions in his report diagnosing brain injury and post-traumatic
vision syndrome. He was qualified as an expert in the treatment of visual disturbances.
I did not accept that he has the training to diagnosis a closed head brain
injury or a condition of that nature. His evidence was limited in this regard.
[284] Dr. Loopeker
prepared a report dated August 30, 2011.
[285] Dr. Loopeker
first examined Ms. Warren on April 2, 2007. Since that time, he has met
with her on six occasions (twice in 2008, once in 2009 and three times in
2010). He also conducted five vision therapy sessions with Ms. Warren in
2011. `
[286] In his report,
Dr. Loopeker diagnosed Ms. Warren with post-trauma vision syndrome.
[287] He listed
the following visual symptoms she experienced:
(i)
visual-spatial awareness problems (difficulty navigating through large,
unfamiliar spaces, causing anxiety and distress);
(ii)
hypersensitivity to peripheral motion (including a notation he made in
meeting with her on April 5, 2008 that she cannot stand the sight of moving
water);
(iii)
visual memory impairment;
(iv)
increased sensitivity to sunlight;
(v)
difficulty reading (she had to use a typoscope after the MVAs to read);
(vi)
increasing sensitivity and awareness to heavy, bulky spectacle frames.
[288] Dr. Loopeker
examined Ms. Warren on April 5, 2008. She had reported to him that she was
having difficulty navigating through large spaces. She could not look at moving
water.
[289] She
returned to his office on June 4, 2008 for a new pair of glasses. She did not
express any specific concerns about her visual clarity, eyestrain, blurring or
diplopia while reading. She even reported feeling physically, emotionally and
cognitively improved; her energy, memory and executive functioning were
returning. (I note this is the day before she met with Dr. Turnbull).
[290] He
examined her again on April 6, 2009. She complained of being bothered by her
prescription for her left eye. He modified the prescription slightly to reduce
motion effect created by the prescription. She did not return to see him for
another 11 months.
[291] In a 2010
visit, Ms. Warren had normal results.
[292] Dr. Loopeker
in 2011 commenced vision therapy with Ms. Warren in 2011. While he had not
made any previous notations of significant visual field defects, after
administering vision therapy on Ms. Warren, he found a number of defects
(undated) leading to his diagnosis of post traumatic vision syndrome, midline
shift syndrome and visual perception dysfunction. He found her prognosis for
recovery was unclear, although it was evident that she was unable to return to
her former capacity as a homemaker. He recommended a number of vision
treatments, including visual therapy.
[293] He agreed
that her visual-spatial complaints were consistent with complaints of anxiety
as well as memory problems.
H. Dr. Chuck
Jung
[294] Dr. Jung
is a registered clinical psychologist. He prepared a medical report on
September 1, 2011 based on his interviews with the plaintiff on July 15, 27 and
August 16 and 24, 2011. He also interviewed her husband and reviewed the
medical reports supplied to him before preparing his report. In the course of
these interviews, he administered questionnaires to aid his assessment.
[295] Revisions to
the draft were not available as they had been destroyed.
[296] He has
been treating her since the second week of October 2011.
[297] Ms. Warren
was referred to him by Dr. Anderson for cognitive behaviour therapy in
2009 but it was not until 2011 that she met with him.
[298] Dr. Jung
was qualified as an expert witness and cross-examined on his medical report.
[299] In the
Opinion portion of his report, Dr. Jung found:
Subsequent
to [the second] accident, the recovery has been a protracted one for Ms. Warren.
Initial stages were fairly complicated. Her physical, emotional, and cognitive difficulties
rendered her highly disabled. Due to the multiple-trauma nature of her
injuries, there was also various alternative diagnoses regarding her condition.
It should be noted that she received a diagnosis of MS which was quite alarming
to her and this was not ruled out until a year and a half later. I would defer
to the respective medical specialists to comment more on her physical injuries
and diagnoses.
[300] He continued:
…
I am of the opinion that Ms. Warren continues to experience psychological
problems from her accident of February 7, 2011 (sic). I am of the opinion that
she continues to meet the diagnosis of Post Traumatic Stress disorder (partial
remission), Major Depressive Disorder (partial remission); Panic Disorder (in
partial remission), and a provisional a (sic) diagnosis of a chronic Pain
Disorder associated with general medical condition (deferred) and psychological
factors.
[301] With
respect to the effect of traumatic events that pre-dated the MVAs, Dr. Jung
observed:
With
respect to her history, she has had some traumatic experiences in her past;
however, none of them have resulted in her requiring counseling nor resulting
in a diagnosis of a clinical disorder.
[302] Dr. Jung
opined the second accident was sufficiently traumatic to bring on symptoms of
PTSD:
…
in the accident on February 7, 2008, Ms. Warren was hit at a very high
speed while she was traveling by herself on a bridge. Following the impact, her
memories are somewhat scattered, however, she does recall heading towards a
guardrail, experiencing a feeling of dread and being in peril. There was an
experience of de-realization. Although she did not hit the rail, in her mind
she did have a vision of herself hitting the rail and just hanging over. The
nature of this accident in itself would be sufficient to precipitate the
development of [PTSD].
[303] Dr. Jung
noted that Dr. Koch, who saw the plaintiff within a month of the accident,
diagnosed her with PTSD and Major Depression.
[304] Dr. Jung
noted issues in Ms. Warrens rehabilitation:
She
saw multiple doctors and received various diagnoses, some competing. It should
also be noted that during this period she also was not only highly debilitated
by her physical functioning and pain, however, she was also diagnosed as having
MS, which certainly heightened her sense of helplessness, dread and horror. It
is also well known that the co-occurrence of pain with Post Traumatic Stress
symptoms results in a vicious cycle, where the experience of pain exacerbate[s]
the Post Traumatic Stress symptoms and vice versa. I do believe that this was
the case for Ms. Warren earlier in recovery. On a positive note, there has
been some gradual recovery; however, there remain many problems. … Reviving
memories of her accident of February 7, 20[08], continues to bring distress.
She continues to have cognitive difficulties when anxious.
[305] On the
issue of causation, he opined:
…
if not for her accidents of February 7, 2011 (sic), Ms. Warren would not
be experiencing her Posttraumatic Stress Disorder (Partial Remission), Major
Depresive (sic) Disorder (Partial Remission), Panic Disorder (Partial
Remission), and Pain Disorder.
[306] In
cross-examination, Dr. Jung confirmed that when administering the questionnaire
on Ms. Warren, she had asked for the precise meaning of the questions. She
had also complained about the questionnaire because she was worried about the
interpretation of her answers and her ability to fill it out in the way that she
was supposed to fill it out. It took her three hours to complete the
questionnaire. Dr. Jung also confirmed that she changed her answers a
number of times (defence counsel counted 23 times). He did not agree that this
behaviour necessarily reflected defensiveness. He observed that she liked to feel
strong; she was an analytical person.
[307] In any
event, Dr. Jung did not base his opinion upon her responses to the
questionnaire.
[308] He
admitted that his findings were reliant on the plaintiff.
[309] Under the
Facts and Assumptions section of Appendix A to Dr. Jungs report, he
noted:
1.
Ms. Warren was involved in
two motor vehicle accidents, on February 5 and February 7, 2011 (sic). In the
first accident, Ms. Warren was driving her vehicle with three children
from the pool and she was at a stop sign when she was hit from behind. She
described the impact as a kick in the backside. Ms. Warren was initially
upset when the lady said there was no damage.
[310] Dr. Jung
was under the impression that she had been hit hard.
[311] She indicated
to Dr. Jung that she could not sleep the night after MVA #1.
[312] With
regard to MVA #2, Dr. Jung said he had the impression that Ms. Warren
thought she was heading into the railings. He recounted her description of MVA
#2: [s]he remembered her body going forward and back such that when her head
went forward she could see the floor, and when she went back, her head went
above the headrest and she could see the ceiling. Dr. Jung never saw
damage to the vehicle. He did not know if she had been wearing a seatbelt. She
had felt dazed and in peril after MVA #2. She had the experience of being
draped over the railing but she knows this did not happen.
[313] Defence
counsel drew attention to Dr. Jungs notation, [s]he felt like her head
was going to explode. She worried if she could make it through the night, and
explained to him that she had not yet sought medical attention. Dr. Jung commented
that these feelings are typical in persons with PTSD ─ they experience
fear that something bad will happen.
[314] Dr. Jung
affirmed that Ms. Warren had related in a general manner to him that her
memory was patchy of the evening following MVA #2. When asked about Dr. Kochs
notation that Ms. Warren had no problem recalling the event, Dr. Jung
surmised that this might indicate that she has since suppressed her memory.
[315] Dr. Jung
opined that Ms. Warren was very articulate and spoke quickly, often in excessive
detail and on tangential points. She had high standards for herself. She was
taking care of many activities and the household prior to the accident. However,
her abilities to make judgment and prioritize were not as strong. Dr. Jung
deferred to Dr. Lanius on measurements of her IQ.
[316] She had
reported to Dr. Jung that her headaches were initially intense, although
it was not specified when her headaches had begun occurring. She told him that
she was bedridden after MVA #2. He had assumed she had been bedridden initially
after the accidents. He was not aware that none of the other medical reports
had reported her being bedridden. Dr. Jung surmised that she was certainly
unable to function in the home.
[317] When Dr. Jung
was asked about Dr. Kochs notation that Ms. Warren had experienced
more intrusive recollections of the birth of her son and less intrusive
recollections of her MVAs, he observed that she had not made the same
representations to him.
[318] When asked
about whether Ms. Warren had informed him that her panic attacks began a
week after her MVAs, alongside her pelvic pain, he said No.
[319] Dr. Jung
affirmed that the discovery of 10 lesions in her brain in March 2008 caused stress
for Ms. Warren. He could not recall a second scan of her brain.
[320] He agreed
she seemed to have psychical limitations and that they were fairly severe and
that it was his impression that she had these problems ever since the
accidents, with some improvements.
[321] Dr. Jung
agreed it was his experience that 90% of people with a concussion resolved
within three months. 5 – 10% do not recover. He was not familiar with the
literature put to him by the defence counsel, but he maintained that he had other
reference literature in his possession.
[322] He said
that headaches and memory problems were symptoms indicative of a concussion. He
agreed these symptoms were also consistent with mental health illness. He
accepted that MS could not be ruled out. Nor could he rule out traumatic brain
injury because he knew she was getting a neuropsychological assessment. He focused
solely on reducing her emotional problems.
[323] He agreed
that she was not emotionally upset by the fact that MS could not be ruled out. Dr. Jung
specified that she felt frustrated by the challenge of determining what was
causing her cognitive disability.
[324] Dr. Jung
agreed that it is ideal to have a treating psychiatrist administering
medication and a professional administering cognitive behavioural therapy in
the context of mental health. Dr. Jung was not sure if it would be helpful
in her case because she does not have a treating psychiatrist.
[325] He was
posed with a hypothetical question: assuming the MVAs never happened and Ms. Warren
had episodic MS that led to the discovery of holes in her brain, was it
possible, if not probable, that she would develop depression, anxiety or
somatoform disorder? Dr. Jung simply commented that anyone could develop
those disorders.
I. Dr. Pamela
Michele Williams
[326] Dr. Williams
is a dentist and a certified specialist in oral medicine. She prepared a
medical legal report dated August 25, 2011.
[327] Dr. Williams
first met with Ms. Warren on January 9, 2009. She conducted a series of
re-evaluation appointments. She based her report on these evaluations and the medical
reports she was provided.
[328] Ms. Warren
informed Dr. Williams that she began to experience facial pain soon after
the MVAs. She reported her wide mouth opening being restricted. She had facial
pain that was aggravated by normal jaw function. Ms. Warren had been
referred for physiotherapy when she reported these symptoms, which had escalated
her pain. She was then referred to Dr. Williams for additional review.
[329] At the
initial assessment, Dr. Williams noted that Ms. Warrens pain was
constant, at a moderate to severe level. It was located in the anterior and
posterior neck, the occipital, parietal and frontal aspects of her head. She
made the following observations:
…
there was no facial swelling. Ms. Warrens cranial nerve examination
seemed intact bilaterally. She was able to open her mouth 42 mm. With gentle
pressure as applied by the examiner a maximum mouth opening of 48 mm was
achieved. There was no significant alteration in the path of opening. Lateral
and protusive jaw motions were normal. Translation of the mandibular condyles
was synchronous. No distinctive TM joint clicking or crepitus was audible.
There was moderate tenderness overlying both TM joints. She also had moderate
generalized neck and masticatory muscle tenderness. A brief clenching exercise
resulted in an increased complaint of jaw-related pain. Ms. Warren had a
stable occlusal relationship.
[330] Her
radiographic results, obtained on January 9, 2009, did not disclose any
jaw-related pathology. A temporomandibular (TM) disorder was diagnosed.
[331] In her
assessment, she offered that parafunction was suspected and considered significant
as a possible perpetuating variable. Parafunction in this case was clenching or
grinding. She agreed that this symptom can arise in a person that is not
involved in a car accident. However, she assumed it was related to the accident
because of the time proximity between the accident and the reported symptoms. She
agreed the complaints of jaw pain would be perpetuated by activities causing
her muscles to clench, which would explain why Ms. Warren has experienced
a slow recovery.
[332] She noted
that Ms. Warren still has some residual jaw-related issues, but she has
demonstrated improvement.
[333] She was of
the opinion that the MVAs were the precipitating events for the TM disorder.
She did not consider it disabling. It would not impair her choice of
work-related or leisure activity. Her prognosis for improvement was good
although she could not determine whether her jaw pain would ever be completely
resolved.
J. John Oldham
[334] Mr. Oldham
is a physiotherapist.
[335] At trial, I
found his report inadmissible. I accepted the defences submissions that no
facts or assumptions were set out in the report. Mr. Oldham failed to
disclose counsels instructions that were provided to him. He failed to
describe research he conducted and the documents he relied upon in formulating
his opinion. The report did not disclose the reasons for his opinion. Portions
of his report fell beyond his area of expertise. Finally, he failed to certify
that as an expert, he understood it was his obligation to not act as an
advocate.
[336] He was
allowed to testify as a treating physiotherapist on his observations of Ms. Warren.
[337] In direct
examination, Mr. Oldham described some of the initial observations he made
of Ms. Warren. He noted a problem of posture. He noted balance problems. She
said she was experiencing pain when he lay her down and asked her to raise her
legs. He noted that she was unable to raise her tongue. The muscles that
elevated her tongue were weak. He put her into resting positions to alleviate
stress in her neck and lower back. She was unable to respire easily in these
positions and was unable to remain in them. No dates were provided to
contextualize these observations.
[338] In
cross-examination, Mr. Oldham confirmed that he first saw Ms. Warren on
September 15, 2009. He confirmed that he had made clinical notes that her neck
worsened six months after the accident. He further confirmed that two weeks
later, his clinical notes report that Ms. Warrens neck movement had
improved, as per the plaintiff.
[339] His last
treatment of Ms. Warren was on February 3, 2011.
K. Dr. Ulrich Lanius
[340] Dr. Lanius
is a neuropsychologist registered to practice in British Columbia. He met with Ms. Warren
on March 24 and April 2, 2009 for eight and a half hours to conduct an
assessment of her psychological functioning. He prepared a medical legal report
for plaintiffs counsel on September 2, 2011 documenting her symptoms,
diagnosis and treatment. He prepared a second medical legal report for the
purpose of reassessing Ms. Warrens psychological functioning on February
3, 2012. He had met with her on January 27, 2012 for five hours.
[341] During their
consultations, Dr. Lanius administered a number of neuropsychological tests
to measure her brain functioning. He explained in his direct examination that
these tests are primarily concerned with short term memory. In preparation of
his report he also reviewed the clinical records of other medical experts.
[342] He
described MVA #2 as follows:
…
on February 7, 2008, Ms. Warren, while traveling on the Alex Fraser Bridge
in her Ford Windstar van and on the way to pick up her sons from school, was
rear-ended again. On this occasion, the impact occurred at a higher speed.
Apparently, Ms. Warren was thrust violently up and down, and recalls her
lower back being thrust forward, her body upward and then striking the base of
her skull against the top of the car seat (integrated head restraint).
[343] In the
Summary & Recommendations portion of his report, he made the following
findings, which I excerpt here:
1.
Ms. Warrens current level of
intellectual functioning falls in the Superior range. VIQ [or, verbal IQ]
falls in the High Average range and PIQ falls in the Very Superior range. More
likely than not, this performance suggests a deterioration from estimated
levels of premorbid functioning in the Very Superior range throughout.
2.
The neuropsychological profile
reflects multiple remaining strengths, but also a number of deficits that
include multiple aspects of memory ─ most notably verbal memory. Nonverbal memory, working
memory, as well as aspects of attentional functioning are also significantly
impaired.
3.
… the onset of cognitive
impairment is consistent with Mild Traumatic Brain Injury (MTBI). Behavioural
symptoms of affective dysregulation, impaired memory and attentional
functioning did not appear until after that MVA. Thus, given, (sic) onset of
impaired cognitive functioning subsequent to the MVA, it is more likely than
not that Ms. Warren suffered a concussion and MTBI as a result of the
February 7, 2008 MVA due to accelerative injury.
[344] On the
issue of causation in relation to the white matter lesions on Ms. Warrens
brain, Dr. Lanius could only comment [u]ltimately, I defer to a
neuroradiologist with regard to the causation with regard to lesions evident on
neuroimaging. He then opined: if such lesions were indeed pre-existing prior
to the 2008 MVAs (sic), this would have made Ms. Warren much more prone
to developing significant neurocognitive symptoms secondary to MTBI.
[345] He provided
a qualified response on whether Ms. Warrens emotional condition may have
impacted her testing results:
6.
… I am unable to rule out that Ms. Warrens
emotional sequelae, as well as some ongoing pain activity may have some impact
on her neuropsychological test performance. However, both the pattern of
neuropsychological results, as well as the magnitude of deficits, support the
notion that the observed deficits are primarily attributable to MTBI, rather
than pain and/or emotional factors. Nevertheless, there is likely a synergistic
effect of both cognitive and emotional factors on day-to-day functioning,
including profoundly (sic) effects on social and recreational functioning.
[346] He found Ms. Warren
developed PTSD from MVA #2:
7. … Ms. Warren developed a [PTSD] secondary to
the February 7, 2008 MVA. … There is evidence of a significant trauma history
prior to the February 2008 MVAs that likely predisposed Ms. Warren to
develop PTSD in the face of a renewed traumatic event.
[347] He also
found she met diagnostic criteria for Major Depressive Disorder – moderate. He
opined that it was more likely than not her depressive symptoms were partially
in response to the loss of her cognitive functions. She further met diagnostic
criteria for Chronic Pain Disorder.
[348] He was of
the opinion that Ms. Warrens ability to work and her earning capacity may
have been profoundly impaired by the 2008 MVAs. However, he concluded his
report with the following recommendation:
13. Generally, after three years post-injury the
likelihood of additional improvements is limited. Thus, at this time I am
unable to comment on long-term outcome and prognosis as well as on future
earning capacity with regard to the effects of Ms. Warrens injuries. …
[349] For the
second medical legal report, Dr. Lanius performed some, but not all, of
the previous brain functioning tests. He also reviewed the updated clinical
records on Ms. Warren, which are set out in his report.
[350] In the
Summary & Recommendations portion of his report, he provided the
following opinions.
1.
Ms. Warrens
neuropsychological functioning is largely unchanged from the previous
assessment conducted in 2009. There are some are some (sic) areas of
significant improvement with regard to contextual verbal memory (e.g. Logical
Memory). This likely comes at a cost of slightly decreased visuo-perceptual
performance (e.g., Block Design, RCFT).
[351] He
explained in cross-examination that the normal course for a large portion of
persons with a disruption to their brain functioning is improvement. However,
for some, the effects of neuroplasticity can result in ongoing deterioration
of some parts of the brain, prompting other areas of the brain to compensate. He
said that often what happens is a deficit in verbal memory will eventually
improve with a decline in visual memory, which is a less important part of the
brain for most people.
[352] With
regard to the prospect of employment, Dr. Lanius opined:
5.
Overall, while the
neuropsychological profile reflects multiple remaining strengths, the profoundly
impaired performance on Trails B likely reflects the limiting factor with
regard to overall functioning. Generally, it has been my experience that
individuals with similarly impaired Trails B scores are unable to be remuneratively
employed and they tend to have profound impairments with regard to day-to day (sic)
functioning.
[353] He
provided the following explanation for why Ms. Warren demonstrated
significant improvement in some areas with other areas remaining consistent:
6.
[This] pattern … is very much
consistent with MTBI rather than a deteriorating condition, such as Multiple
Sclerosis. It very much supports the notion that Ms. Warrens
deterioration in cognitive functioning after the February 7, 2008 MVA was
indeed primarily attributable to MTBI.
7.
While I am unable to rule out that
PTSD, depression and pain have some impact on neuropsychological performance,
it is my opinion that such impact is relatively minimal. …
[354] He
maintained that Ms. Warren suffered from ongoing PTSD symptoms. He
disagreed with Dr. Ancills opinion that her PTSD was in full remission.
He confirmed that Ms. Warren continued to meet the diagnostic criteria for
Major Depressive disorder at a moderate level.
[355] He
concluded that given four years had passed since the MVAs, her
neuropsychological impairments were likely permanent in nature.
[356] In
cross-examination, I note Dr. Lanius was quite unwilling to aid the Court
on many complex issues. He was disagreeable and provided many equivocal
responses. I highlight here portions of his testimony that were actually
helpful (even though he might not have so intended).
[357] Dr. Lanius
explained that mild traumatic brain injury encompasses a great range of
impairment and deficit. He agreed that most persons that sustain a mild
traumatic brain injury return to their normal lives within three months, with
some never recovering.
[358] When asked
about whether there was any sign of bleeding inside her brain within a month of
the accident, he only commented that the MRI revealed lesions. When pressed
further on this point he noted:
38.
A I cant comment on
that. But certainly if you
39.
have lesions, if you
have a low resolution
40.
scanner, you often
cannot determine whether there
41.
actually is a bleed or
not. And to my knowledge
42.
there actually hasnt
been any really high
43.
resolution or imaging
done to rule that
44.
possibility out.
[359] Dr. Lanius
agreed with defence counsel that there has been no medical opinion from a
neurologist or any other qualified medical professional that would suggest that
any of the lesions on Ms. Warrens brain were caused by the accident.
Defence counsel then noted that Dr. Lanius had not supplied any authority
for the proposition he made in his report that white matter lesions are common
secondary to traumatic brain injury. Dr. Lanius replied that it was
common knowledge in neuropsychology that someone with comprised cerebral functioning
will be vulnerable to brain injury.
[360] Dr. Lanius
agreed with defence counsel that his findings operated on the assumption that
there was sufficient force in the accidents to cause some form of neurological
disruption, to which he added: certainly my neuropsychological assessment
results would be consistent with that.
[361] Dr. Lanius
explained that traumatic brain injuries are typically accompanied by a cascade
of other conditions, including PTSD, depression and pain disorder. He disagreed
with the premise put forward by defence counsel that it was impossible to determine
the cause of neurological symptoms, even with testing. He maintained that
psychological disorders exhibit patterns that can be distinguished from mild
traumatic brain injury symptoms. At the same time, later on in
cross-examination, he noted that neurophysiological cascade that were talking
about is in some ways kept alive by other psychological processes. So certainly
theres evidence for PTSD affecting the neuroimmune functioning.
[362] He agreed
with the proposition put to him that mild traumatic brain injury has small
overall effects. He agreed that attention span is the most likely to be
affected by a brain injury. He also largely agreed with the proposition
[p]atients with persistent post-concussive symptoms generally have non-injury
related factors which complicate their clinical course. Post-concussive
syndrome is a relatively rare sequelae of MTBI seen in 1 to 5 percent of all
MTBI patients.
[363] He refused
to say whether he agreed with the proposition that where symptoms persist,
compensation/litigation is a predictive factor, with little else as a
consistent predictor.
[364] Dr. Lanius
confirmed in cross-examination that he did not observe any symptoms of pain in
the plaintiff in their consultations.
[365] He agreed
he had not set out the margin for error in his tests in his report.
[366] He agreed
that white matter lesions can be found in persons that do not report having a concussion.
He said that it was his experience that there was a higher likelihood of white
matter lesions in patients with a history of mild traumatic brain injury.
L. Dr. Elliot
Mintz
[367] Dr. Mintz
was qualified as an expert family physician. He prepared a medical legal report
on August 9, 2011. Dr. Mintz met with Ms. Warren on January 5, 2009,
February 10, 2010, April 20, 2010 and August 3, 2011.
[368] Dr. Mintzs
report begins with a summary of the two MVAs. Interestingly, his summary notes:
[After
MVA #2, Ms. Warren] did go to Richmond General Hospital. There, they
diagnosed a concussion. On April 10th, 2008 she attended GF Strong
and VGH where they diagnosed her as having mild traumatic brain injury.
[369] She was
never diagnosed with a mild traumatic brain injury at GF Strong.
[370] Dr. Mintz
made the following notations of Ms. Warrens medical history after first
meeting with her on January 5, 2009:
She
started (sic) that she had a reaction to Gaba pentine and had to go to the
emergency department for intravenous therapy. One week later her blood pressure
was high leading to vertigo. She saw her Doctor, Dr. McKenzie who did
blood work for connective tissue disorder. The next morning she attended
Richmond General Hospital for rehydration. On December 18th she
again returned to Richmond General Hospital. They felt that she had post
concussion syndrome. She had muscle pain all over her body. This pain was
delayed [for] more than four hours later after physical activity. She attended
pool exercises but later had a decrease in her energy. She felt ok between her
shoulder blades and waist. Her sacrum right side had pain in the emphasis
pubis. She attended Dr. Christina Williams OB Gynae specialist who
referred her to a physical medicine doctor, Dr. Elliot Weiss. She also
referred her to a pain specialist Dr. Karen Hossack on January 13th,
2009. She had not yet seen a physiatrist.
[Emphasis
added.]
[371] Dr. Mintz
further noted she was experiencing a lot of down ward spiraling events at
home. He recorded that she was seeing Dr. Wilensky, who was attempting to
reprocess her birth episode as well as her eye injury and scarlet fever she
suffered at the age of four.
[372] Dr. Mintz
noted he received a letter from Dr. Hershler about a consultation he had
with Ms. Warren on September 13, 2010. Dr. Hershler had reported that
Ms. Warrens physical exam showed major improvements in all of the areas
where she had previously complained of pain. Dr. Hershler had informed Dr. Mintz
that [h]e felt that the range of motion of her head and neck was almost
completely resolved. He also noted he received a letter from Dr. Loopeker
on February 11, 2011, who had reported that Ms. Warren was overall making
progress and had been feeling physically, energetically and cognitively
improved.
[373] In his
consultation with Ms. Warren on February 10, 2010 (although his report
indicates February 10, 2011). He spoke with her about avoiding aggressive
massage and chiropractic work because of a powerful release of endorphins that
she had been experiencing with Dr. Hershlers treatment.
[374] Dr. Mintz
saw Ms. Warren next on April 20, 2010. She had described her condition as
moving up the ladder.
[375] He
received another note from Dr. Hershler after his consultation with Ms. Warren
on March 21, 2011. Dr. Hershler had informed Dr. Mintz that he was
going to commence a training program with Ms. Warren to wean her off her
dependence on therapists.
[376] He last
saw Ms. Warren on August 3, 2011. They discussed her attending an
appointment at the MS clinic to rule out MS. That appointment was
scheduled for September 1, 2011.
[377] Dr. Mintz
concluded that as a result of the MVAs, Ms. Warren sustained
post-concussion syndrome, PTSD, severe soft tissue injury to her cervical
spine, severe soft tissue injury to her lumbar spine and severe injury to her
sacrum. His prognosis for her recovery was guarded.
[378] The bases
for these diagnoses are not clearly laid out since Dr. Mintz does not
detail his own observations. He only summarizes the observations of others.
[379] In
cross-examination, he agreed he relied upon the accuracy of the patients
relayed medical history in forming his diagnosis and treatment plan.
[380] Ms. Warren
saw Dr. Mintz on 15 to 20 occasions. She last saw him on October 19, 2011.
[381] Dr. Mintz
maintained that x-rays of her neck showed evidence of previous injury as well
as wear over time. However, the x-rays did not reveal any problem that would be
symptomatic. He noted she had herniated discs displayed in her x-rays in the
L5-S1 area, the most common area, without any evidence of nerve impingement.
[382] He said
the usual course of recovery for soft tissue injury is for the person to
experience the greatest change in symptoms within the first few months. This
recovery will eventually reach a plateau. A minor injury will have symptoms
lasting six months; a serious injury will last over two years. He agreed a good
predictor of speed of recovery was the degree of strain upon the muscles. A
person with a minor injury is likely to fully recover. He said the fact that she
was still suffering four years on indicated she had suffered a severe injury. He
did agree that pain was a subjective symptom.
[383] Dr. Mintz
also agreed that his description of the MVAs and her subsequent diagnoses were
based on the history that she had provided to him at her initial consultation,
on January 5, 2009. He said he never revised those descriptions in his report. He
confirmed he never received reports from GF Strong but he explained he did
receive reports detailing MTBI in emergency reports from VGH. When he was
informed by defence counsel that Ms. Rose from GF Strong could not
diagnose MTBI, he had no knowledge of that fact.
[384] The
clinical records from Ms. Warrens visit to the VGH emergency on March 31,
2008 were put to Dr. Mintz. He was presented with the Emergency Nursing
Assessment, which made notes that included nerve pain to the legs, short of
breath, alert, steady gait. In the Emergency Department Record, made on
that same date, constellation of neurologic symptoms was noted. Final
diagnosis was anxiety. It noted neuro appointment. Dr. Mintz was never
provided with these records. His attention was also drawn to hospital records
from the Richmond General Hospital, dated February 9, 2008. These records show
that she reported no neck pain. He said some injuries will not necessarily
manifest right away.
[385] Dr. Mintz
maintained that MVA #2 was a high impact accident. When posed with the
hypothetical question of it being a low impact accident, he said he would
expect minimal symptoms present.
[386] Dr. Mintz
was presented with Dr. Turnbulls report prepared in June 2008. His
attention was drawn to Dr. Turnbulls observation that Ms. Warren had
full range of movement in her neck and back. Dr. Mintz was not aware of
this report. Ms. Warren had not volunteered this information to Dr. Mintz.
The Plaintiffs Vocational and Earnings Evidence
A. Derek Nordin
[387] Mr. Nordin
is a vocational rehabilitation consultant and he was so qualified as an expert.
[388] He
prepared a report on August 31, 2011 after meeting with Ms. Warren on
August 2, 2011. He relied on this interview, the vocational battery test she
completed and the documents sent to him by her counsel.
[389] Ms. Warren
reported to Mr. Nordin that at the time of the MVAs, it was her plan with
her husband that she would re-enter the workforce once her youngest son entered
high school. Mr. Nordin estimated that her youngest son would be 11 at the
time of the accident and that Ms. Warren would have re-entered the work
force in two years time. At the time of the MVAs, she described herself as
working part-time for her husband in his accounting practice.
[390] Ms. Warren
had also indicated to Mr. Nordin that she had planned to initially work
part time and eventually move into full time work. She did not have any
specific employment in mind.
[391] Ms. Warren
described to Mr. Nordin the second accident as being a high speed
rear-end collision. She reported an injury to her cervical spine, a
concussion, injury to her pelvis and her lower back.
[392] Based on Ms. Warrens
self-reporting, Mr. Nordin notes that her overall condition has remained
the same.
[393] Mr. Nordin
relied upon the diagnoses of Dr. Anderson and Dr. Ancill in
formulating his opinion.
[394] The
vocational test battery administered on Ms. Warren produced the following
results:
(i)
academic achievement ─ 81st percentile;
(ii)
reading ability ─ vocabulary score in the 97th percentile; reading
comprehension 2nd percentile (resulting in her inability to complete
the questions in the time allotted). He noted that in his experience, quite
often difficulties with memory and/or concentration can impair an individuals
ability to do well on the reading comprehension subtest;
(iii)
vocational interests ─ strongest score in the investigative theme
(strong scientific orientation). Her areas of least interest were office
management, programming and information systems and entrepreneurship;
(iv)
personality factor ─ normal range results (with the exception of
reasoning, which produced a high score and emotional stability which produced
a low score). Mr. Nordin noted: [h]er results also suggests, however, at
the present time Mrs. Warren presents herself as somewhat more anxious
than most people.
[395] In the
discussion portion of his report, Mr. Nordin noted he did not have the
opportunity to review any income tax information from Ms. Warren from 1997
– 2008. He summarized her work history as primarily involved in a market
research company, ACNielsen, from 1987 to 1995. Her last position with that
company was as a business manager. Her reported salary was $94,000.00. She also
reported teaching as a sessional instructor at Kwantlen College. She did not
provide Mr. Nordin with earnings information on that position.
[396] He opined:
From
a vocational rehabilitation perspective, I am not aware of any limitations in
the physical, cognitive, or emotional domains which would have precluded Mrs. Warren
from returning to the workforce as she had intended.
However,
at the same time, I have no way of knowing the likelihood of her following
through on her expressed plans. All that I can say is that she had the potential
to do so.
As
noted earlier, as her return to work plan was based on her returning to work
two years after the subject accidents she did not, at that time, have any
specific employment opportunities available to her.
[Emphasis
in original.]
[397] He noted
census data showing that females who worked full year/full time as sales,
marketing and advertising managers earned on average $68,780.00 per year in
2010. He also observed that new hires at Kwantlen University earn an annual
salary of $52,833.00.
[398] Her
ongoing symptoms in her physical, cognitive and emotional domains, her
difficulties with memory, concentration, word finding and emotionality led to
his conclusion that Ms. Warren was not competitively employable at this
time. He predicted that she would remain out of the workforce unless she
experienced an improvement in her symptoms.
[399] He
confirmed in cross-examination that the plaintiff had not advised him that she
had not worked full time after 1991.
[400] He agreed
that the plaintiffs issues were emotional or psychological, and that
resolution of those issues would make her employable.
B. Darren Benning
[401] Mr. Benning,
President of PETA Consultants Ltd., prepared a report estimating past and
future income loss for Ms. Warren. He was qualified as an expert in the
valuation of all aspects of economic loss in civil actions.
[402] The report
was completed on the assumption that but for the accidents, Ms. Warren
would have returned to the labour force by January 2010 and that she would have
earned an income comparable to a British Columbia female working as a
sales/marketing manager, a college instructor or a marketing researcher through
to retirement at 65 years of age.
[403] It was
also assumed that Ms. Warren may have suffered income loss in the past as
a result of the accidents and that in the future, Ms. Warren may have no
residual earnings capacity.
[404] As she had
been out of the work force for approximately 14 to 15 years, her earnings were
lagged by that amount of time. Allowance was made for non-statutory, non-wage
benefits for future years; no allowance was made for Canada Pension Plan
premiums given her age.
[405] He
reported the calculations as follows for Without-Accident Past and Future
Income:
Under
these assumptions, total past without-accident income is either (sic) $123,372,
$92,505, or $109,498, prior to court-ordered interest. Similarly, the lump sum
present value of Ms. Warrens future without accident income is either
$649,411, $503,149, or $466,681.
[406] For Past
Income Loss, he reported:
…
we estimate a past income loss of either $99,970, $78,200, or $90,216, prior to
court-ordered interest.
[407] Her
earnings from her husband were excluded from this calculation because it was
suspected that her declared income from her husband was for the purpose of
income splitting.
[408] He
calculated Future Income Loss as the same as her Without-Accident Future Expected
Income.
The Defendant
Mauro Berretta
[409] Mr. Berretta
gave evidence on MVA #2. He was 70 years of age at the time of trial. Before
his retirement he was a mining engineer, geophysicist and geologist. He was the
driver of the Mercedes SUV that impacted Ms. Warrens van.
[410] He remembered
he was coming from the airport on that day. The accident occurred on the Arthur
Laing Bridge. He was in the right hand lane on the bridge between 3:00 and 4:00
p.m. The traffic was heavy and it was moving at a stop and go pace. He was driving
at a speed of 15 kph. The vehicle in front of him was a van.
[411] In the
process of stopping and going he looked in his rear view mirror. He noticed the
vehicle behind him was close. He then looked forward and saw the van had
stopped and he slammed on the brakes. He was going 5 kph upon contact with the
van. He did not remember the van moving forward upon impact. He did not recall
the vans lights being on at the time. He braced himself on his wheel. He was
not wearing a seat belt and he did not move substantially. The airbags did not
deploy.
[412] Mr. Berretta
and his wife got out of the vehicle. The driver of the van got out of the
vehicle. They spoke briefly and then moved the cars out of the lane. They then
proceeded to exchange information.
[413] Mr. Berrettas
front bumper was pushed in.
[414] He
estimated that almost immediately after impact, the driver exited her van. She
seemed upset and tearful. She mentioned to Mr. Berretta and his wife that
she had been rear ended a few days earlier. She seemed normal. She spoke
clearly.
[415] Mr. Berretta
did not have any injuries from the accident.
[416] In
cross-examination, Mr. Berretta agreed that in his examination for
discovery he had said that Ms. Warrens vehicle was pushed forward some
distance.
[417] Mr. Berretta
admitted his Mercedes SUV was a heavy vehicle, although he maintained it was
not a large vehicle.
[418] He
confirmed that the total amount for repairs on his vehicle was approximately
$6,000.00.
[419] He
confirmed that he was not looking at his speedometer at the time of the
accident. His measurement of speed was his own estimation.
Shannon Grant
[420] Ms. Grant
was 62 years of age at the time of trial. She is the wife of Mr. Berretta.
Before retirement she was a geologist. She is now a homemaker and artist. She
was the passenger in the Mercedes SUV that collided with Ms. Warrens
vehicle.
[421] She
confirms Mr. Berrettas testimony that they were driving on the Arthur
Laing Bridge in the far right lane. The traffic was stop and go.
[422] She was
reading at the time of the accident. She first looked up when her husband hit
the brakes. She said they were travelling not very fast.
[423] She did
not recall the van moving forward. She was wearing her glasses at the time.
Nothing occurred to her upon impact. She had her hand forward to brace herself.
[424] After the
accident, they got out of the vehicle to exchange information. They tried to
pull over to move out of the way of traffic. After that point they exchanged
information. The woman driver of the van wrote down their information. She was
clearly upset but acted normally. She informed Ms. Grant that she had been
rear ended recently. Ms. Grant had no injuries resulting from the
accident.
[425] She
confirmed she did not make a statement after the accident ─ she had not
thought anything would come of it.
The Defendants Medical
Evidence
A. Dr. Ian Turnbull
[426] Dr. Turnbull
is a neurosurgeon and was so qualified to testify as an expert.
[427] Dr. Turnbull
prepared a medical legal report on June 23, 2008 for the former counsel of Ms. Warren.
He met with Ms. Warren on June 5, 2008.
[428] In his
medical legal report, Dr. Turnbull summarized Ms. Warrens MVAs and
her subsequent medical history and treatment.
[429] Dr. Turnbull
noted that she reported she was gradually resuming her normal pattern of life.
On weekdays she would rise at 6:15 a.m. and make breakfasts and pack lunches
for the boys. She would send the two younger sons off to school. Her
housekeeper, who formerly came once a week, now came three times a week.
[430] Dr. Turnbull
noted that on March 26, 2008, Ms. Warren had an MRI scan of her head. The
radiologist, Dr. Andrews had reported finding approximately 10 high-signal
lesions measuring up to 8 mm in size in the cerebral white matter bilaterally.
He noted [t]hese lesions did not have the characteristics of axonal injury and
suggest the possibility of multiple sclerosis. It was also noted that these
lesions were non-specific.
[431] Dr. Turnbull
determined that any of her ongoing problems were attributable to MVA #2. She
had complained of problems in her back from top to bottom. She experienced
muscle spasms in her low thoracic region. She suffered from aching tightness in
her shoulders. She had a pulling feeling in the muscles around her pelvis. She
would suffer from a burning sensation in her upper lumbar region with activity.
She felt unsteady. She felt pressure in the back of her neck from gardening
that would cause her to lie down. She also had the sensation of a tight line
extending from the back of her skull over the top of her head to her teeth. She
no longer had a ringing sensation in her ears.
[432] Upon
examination, he observed:
…
I found her to be bright, alert and cheerful. Although concerned about her
ongoing symptoms, she made no effort to exaggerate her reaction to them. She
moves about with agility and displays good dexterity.
She
has a full range of movement of her neck and back, with no symptoms being
caused. She has slight tenderness in the upper trapezius muscles on both sides
of her neck and the paraspinal muscles in the low thoracic region and upper
lumbar region are tender to palpation.
She
has full strength in the muscles of her arms and legs. She feels that her grip
is not as strong as it used to be, but I could not detect any weakness. The
deep tendon reflexes are brisk and symmetrical in her arms and legs. I could
find no sensory abnormalities in her arms and legs.
[433] He
confirmed this observation in his testimony.
[434] Significantly,
he made the following observation:
I
could not find any evidence on physical examination to indicate dysfunction of
the brain, spinal cord, or peripheral nerves; consequently, I could not find
anything to correlate with the areas noted on the MRI scan as being possibly abnormal.
To my eye, the scan is not of high quality. If there is any reason to postulate
that she may have brain dysfunction on a structural basis, I recommend that the
scan be re-read by a neuroradiologist, who may want to do some repeat studies.
The history does not suggest multiple sclerosis or a physical brain injury as possibilities.
[435] He
concluded that she sustained soft tissue injuries in the second MVA. He did not
believe that she would benefit much from ongoing treatment. He only suggested that
she resume her normal activities gradually.
[436] I asked
him about that last comment. He responded by clarifying that it was his
impression that she was doing quite well. He was not commenting on psychiatric
help. When I asked about the type of treatment that would be recommended for a
person who was suffering from symptoms resulting from a concussion injury, he
said it would depend on the nature of the difficulty being experienced by the
individual.
B. Dr. Marc Boyle
[437] Dr. Boyle
is an orthopaedic surgeon and he was so qualified as an expert.
[438] Dr. Boyle
prepared an independent medical report on August 17, 2011. He interviewed and
examined Ms. Warren on that same date.
[439] His report
notes that her worst complaint is her neck. She also complained of a burning
sensation posteriorly, more on the left side. She experienced stiffness and
grinding. She had headaches that are occipital with bifrontal radiation. With
neck extension she reported suffering from dizziness or near fainting.
[440] She
complained of low-grade tinnitus and dizziness. This dizziness had interfered
with her physiotherapy sessions.
[441] She
experienced numbness is the right fifth finger. She complained of radiation in
the midline through the sacrum, which was not constant. She had mid-back pain
brought on by activity. She stated that she had problems with the pelvic floor.
She had tenderness over the pubic symphysis.
[442] His
examination of Ms. Warrens stance revealed normal alignment. Her
shoulders and pelvis were level and her cervical and lumbar lordoses were
normal.
[443] He also
made observations of her range of motion. She could rotate to 90 degrees
bilaterally and laterally flex to 30 degrees bilaterally. She would not extend
from the neutral position of 90 degrees mentum-cervical angle. She would not
allow axial compression. He explained that this test is to elicit the status of
the cervical spine. She would not allow palpation. There was no wasting, which
would suggest atrophy. He noted: [r]egarding extension, the patient refused to
do so on request for fear of losing connection in physical space and possibly
fainting. She had simply been asked to look at the ceiling.
[444] On flexion
of her lumbosacral spine, she extended 120 to 130 degrees with no complaint. In
doing so, he noted she extended her neck without any symptoms.
[445] He
observed:
It
should be noted that the patient displayed extension of her cervical spine
without complaints to at least 135 degrees when she forward-flexed her lumbar
spine with knees in extension. She was adamant, however, that she could not
extend from an axifemoral angle of 90 degrees without suffering dizziness and
possibly fainting. This did not occur during the aforementioned examination.
[Emphasis
added.]
[446] Her
thoracic spine had normal expansion upon inhalation. He observed the
[c]ompression of the thorax was not associated with any complaints.
[447] Upon
examination of her lumbar spine, he made the following observations:
Range of Motion
Flexion
allowed her hands to reach to 6 cm from the floor with a 10-cm lumbosacral
excursion. She states that, prior to the MVA, she could touch her hands flat to
the floor with knees in extension. Extension resulted in normal curve reversal
and was possible to an axi-femoral angle of 30 degrees. Lateral flexion allowed
her hands to possible to (sic) an axi-femoral angle or 30 degrees. Lateral
flexion allowed her hands to reach her knee joint lines. There was no
tenderness. The muscle tone was normal.
[448] His other
observations were noted as normal.
[449] His
impression of the plaintiff was that she had suffered a myofascial strain to
the cervical spine after MVA #2. He did not find any evidence of injury to her
vertebrae, disc pathology or neurological compromise. Her MRI revealed mild
disc protrusions in her spine that would be considered the norm at her age. He
opined these changes in her spine were not resulting from the MVAs.
[450] He opined
that Ms. Warren did not require surgery and that her medical management
should involve stretching and strengthening.
[451] He found
there was no medical basis for her complaints of an inability to breathe
because of lack of expansion of her thorax. He did not find any abnormalities
in her bone scan with regard to her thoracic cage.
[452] No other
findings revealed anything noteworthy in her condition.
[453] He
concluded as follows:
Absent
any objective evidence of musculoskeletal trauma other than the working
diagnoses of mild myofascial strains, the overwhelming likelihood is for
resolution of her complaints over time.
Again,
from an organic point of view, absent any objective evidence of pathology in
the musculoskeletal system, the overwhelming likelihood was for resolution of
her symptoms.
It
is the writers opinion that such complaints would be mild and would be
intrusive for a very limited period of time.
[454] Dr. Boyle
echoed the diagnosis of Dr. Anderson that at most she suffered a mild
traumatic brain injury, with the overwhelming likelihood being full resolution
over time. He noted her MRI did not reveal any traumatic changes to her brain.
She had a normal neurological examination under the care of Dr. Stewart
and a normal neuro-opthalmic examination by Dr. Lindley in 2009.
[455] He agreed
with Dr. John Stewart that there was little, if any, likelihood of a
causal relationship between Ms. Warrens hip complaints with MVAs.
[456] Dr. Boyle
opined that she would have been able to resume consulting work within four to
six weeks of the MVAs with a similar time line for her leisure injuries and
household duties.
Errata
[457] In the
course of closing submissions, the defendants raised an objection to the
plaintiffs closing submission. They alleged it was replete with factual
errors. As the defendants were unable to specify all of the alleged errors at that
time, due to time constraints I allowed the defendants to submit a summary of
the errors after the trial was completed. The defendants summary of errata in
the plaintiffs closing argument was filed on May 23, 2012.
[458] The
plaintiffs counsel responded to the defendants summary of errata in a letter
dated May 28, 2012, alleging that the summary contained argument. He believed that
significant submissions were required to respond. However, he was unable to
make those submissions because of ongoing health issues.
[459] In this
letter, plaintiffs counsel also informed the Court that his health may have
impacted his ability to properly represent his client at trial. He indicated
that he was seeking legal advice on this issue and that he might bring further
applications based on that advice.
[460] The
defendants opposed this right to reply in a letter dated May 28, 2012. They
submitted that to the extent the errata summary contained argument, it was necessitated
by the volume of discrepancies that needed to be addressed, which could not
be accommodated in closing argument. The defendants would only agree to further
submissions on costs.
[461] Finally,
the defendants stated that if accommodations were to be made for the plaintiffs
counsels health, they required medical documentation of those health issues.
[462] Plaintiffs
counsel retained counsel. On June 18, 2012, his counsel wrote to the Court advising
that he had concluded his clients health issues had impacted his ability to
properly prosecute the claim. He was prepared to submit medical evidence on
this issue. He sought leave to file a new/amended closing submission after he
had time to review the entire trial. He also advised the Court that after
reviewing the trial record, he might seek to re-open the case.
[463] I granted the
plaintiff a right to reply to the defendants summary of errata, although this
reply was limited to new arguments raised in the defendants submissions. I
declined to re-open the case.
[464] To ask a
trial judge to be responsible for determining the competence of counsels
decisions in the course of a trial would impose an impossible and inappropriate
burden on the Court.
[465] A
sur-reply was submitted to the Court dated September 4, 2012. It essentially
argued that the summary of errata was simply criticizing the plaintiffs
interpretation of the evidence.
[466] I have
reviewed these further submissions by the parties. I agree with defence counsel
that the plaintiffs closing argument contained extensive errors, including
reference to evidence that was not before the Court. This is particularly
unhelpful given the extent of the evidence that was proffered to the Court in
this trial.
[467] It is
trite to say that I have relied upon the evidence admitted at trial in forming
my factual and legal conclusions.
Analysis
Factual Findings for MVA
#2
[468] I find
that MVA #2 was a minor accident. I draw this conclusion for several reasons.
[469] I note the
damage to Mr. Berrettas vehicle was not significant. There was no damage
whatsoever to Ms. Warrens vehicle.
[470] Ms. Warren
claims that when she was hit by Mr. Berretta, she was driving 50 kph. Yet,
Mr. Berretta said he slammed on his brakes to avoid hitting Ms. Warrens
van because her vehicle had come to a stop.
[471] Her speed
estimate also contradicts her own admission that the traffic was at a shuffle
pace as it merged off the Arthur Laing Bridge.
[472] I infer
that the traffic was heavier at the time of the accident as it coincided with
the beginning of rush hour. I prefer Mr. Berrettas evidence, supported by
his wifes testimony, that the traffic was stop and go. He estimated his speed
at the time of the accident was 5 kph. I find this estimate to be a more
reasonable approximation of the speed he was travelling at when he collided
with Ms. Warren.
[473] I find
that both Mr. Berretta and Ms. Grant were honest, credible and
reliable witnesses. They did not depart from their version of events and they
were forthcoming about the limitations of their observations.
[474] It is
unclear whether Ms. Warrens van was pushed forward by Mr. Berrettas
vehicle. Mr. Berretta in his examination for discovery said that her car
was pushed forward some distance. It was Ms. Warrens own admission in
cross-examination that she did not recall her car being pushed forward upon
impact; she claimed her memory of MVA #2 was limited. Yet, her statement taken at
the Richmond Claims Centre four days after the accident shows that she had
excellent recollection of the accident at the time, suggesting that her
inability to recall the accident now can be attributed to the passage of time
(or perhaps the suppression of her memory, as Dr. Jung proposed). This
statement does not mention her vehicle being pushed forward.
[475] I reject
the plaintiffs submission that the weight of Mr. Berrettas vehicle made
the impact more severe. I have no evidence to support that submission beyond
inference.
[476] These
findings do not determine the issue of causation. The law is well-established
that causation and the extent of an injury will be decided on the whole of the
evidence: Hoy v. Harvey, 2012 BCSC 1076 at paras. 44 – 45; Christoffersen
v. Howarth, 2013 BCSC 144 at paras. 56 – 57. Even if the accident was
minor, Ms. Warren may have suffered serious physical and psychological
injury.
[477] At the
same time, Ms. Warren has put forward an untruthful version of the
accident to her treating health care professionals, as evident in their
description of the incident. For instance, Dr. Boyles report notes that
she crashed into the car ahead of her as a result of Mr. Berrettas vehicle
hitting her from behind. This misstatement cannot be explained by the passage
of time; it is a misrepresentation that affects the reliability of the medical
evidence admitted in this case for the purpose of determining causation and
damages.
The Plaintiffs Credibility
[478] A
fundamental issue in this case is the plaintiffs credibility.
[479] The
plaintiff suggests there is ample evidence to support her claim that MVA #2
caused her to suffer from physical injury, chronic pain, cognitive dysfunction
and psychological disorder.
[480] The
defendant argues the plaintiff has been untruthful about the nature and extent
of her symptoms. The defendant impugns her evidence by pointing to substantial
inconsistencies between her evidence and the findings of some medical experts.
[481] This
accusation of malingering is particularly concerning since the plaintiff has not
proved there is an organic basis for her symptoms. If she has fabricated her symptoms,
the reliability of the expert opinions that were formed on the basis of her complaints
is diminished.
[482] The Court
of Appeal ruled on the correct approach to assessing the truth of a witness
story in Faryna v. Chorny, [1952] 2
D.L.R. 354 (B.C.C.A.) at 357. It held:
In
short, the real test of the truth of the story of a witness in such a case must
be its harmony with the preponderance of the probabilities which a practical
and informed person would readily recognize as reasonable in that place and in
those conditions.
[483] Madam
Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398 (affirmed in 2012
BCCA 296) expanded upon the method of assessing credibility:
[186] Credibility
involves an assessment of the trustworthiness of a witness testimony based
upon the veracity or sincerity of a witness and the accuracy of the evidence
that the witness provides (Raymond v. Bosanquet (Township) (1919), 59
S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination
of various factors such as the ability and opportunity to observe events, the
firmness of his memory, the ability to resist the influence of interest to
modify his recollection, whether the witness evidence harmonizes with
independent evidence that has been accepted, whether the witness changes his
testimony during direct and cross-examination, whether the witness testimony
seems unreasonable, impossible, or unlikely, whether a witness has a motive to
lie, and the demeanour of a witness generally (Wallace v. Davis, [1926]
31 O.W.N. 202 (Ont.H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 152
(B.C.C.A.) [Farnya]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at
para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether
the evidence is consistent with the probabilities affecting the case as a whole
and shown to be in existence at the time (Farnya at para. 356).
[484] To assess Ms. Warrens
credibility, it is helpful to begin with some comments on her presentation as a
witness.
[485] Ms. Warren
spoke clearly and carefully.
[486] She had
good memory for the most part, with the exception of timeline, which happens to
be a crucial issue for causation. Her memory was particularly detailed with
regard to the nature of the treatments she obtained from the various health
professionals she met with from 2008 to 2012. However, she was vague about the
nature and progression of her symptoms, particularly after December 2008. Her
recollection of the order in which she met with these professionals was replete
with errors. This might not simply be an indication of cognitive dysfunction; the
evidence establishes that Ms. Warren has met with a large number of health
care professionals since MVA #2 and it may very well be difficult for her to
recollect the order in which she met with them four years on.
[487] Ms. Warren
expressed confusion over some of the longer questions posed by counsel, but not
all. Sometimes she completed questions for her counsel.
[488] Ms. Warren
provided lengthy, tangential answers to counsels questions. She also attempted
to explain away issues. For instance, she said the second MRI requested by Dr. Weiss
was for the purpose of examining her soft tissue injuries. Given the limited
resources of the hospital, Dr. Weiss requested the MRI be conducted to
investigate the possibility of MS.
[489] Defence
counsel brought forward evidence of Ms. Warren attempting to control the
sharing of information between experts. She wrote an email to Dr. Lanius
on July 22, 2009 (at 8:41 p.m.) asking:
If
possible I would like Art [Vertlieb (her former counsel)] to forward a copy of
your report to me. I would like to read it before it is distributed to other
parties. I am wondering if your findings could be shared with Dr. Marshall
Wilensky as he continues to provide treatment to me.
[490] A final
noteworthy point is that on several occasions, Ms. Warren expressed the
sentiment that she was not understood. In this way, I had the impression that she
was guarding against the perception that her ability to communicate in an
articulate manner was suspicious.
[491] Ms. Warrens
symptoms were confirmed in a general way by the lay witnesses that testified on
her behalf. However, observations on her slow recovery seemed exaggerated. Her
son Andrew, for instance, testified to her being bedridden and being unable to
walk for years. He failed to provide a particularized timeline of the
progression of her symptoms. The evidence from her husband and son in any event
was unhelpful because both witnesses admitted to being away from home
frequently. In Andrews case, he has been attending college in the U.S. since
August 2010. Ms. Allan and Ms. Black were similarly vague in their
observations of the plaintiff. Ms. Avilas evidence was difficult to
understand and she also resorted to generalizations.
[492] The
plaintiffs evidence is consistent with some of the independent evidence, but
not all of it. These inconsistencies are further explored in the causation
analysis; I merely take this opportunity to note that there are indeed important
inconsistencies between her evidence and the medical evidence presented.
[493] There are also
significant gaps in her medical evidence. This limits the Courts ability to
independently confirm her evidence.
[494] It would
have been helpful to hear from her former GP Dr. McKenzie as a witness,
who could have spoken to her medical history and her symptoms immediately after
the accident.
[495] It is
difficult to track the progression of her physical symptoms in the first year.
As of 2009, she had not yet seen a physiatrist, as noted in Dr. Mintzs
2009 report.
[496] I do not
have any evidence that indicates Ms. Warren met with a neuroradiologist,
even though two experts expressly said they would defer to a neuroradiologists
opinion (Dr. Turnbull and Dr. Lanius). A neurologist who had examined
Ms. Warren in 2008 was not called as a witness, even though she was on the
witness list.
[497] Finally, I
note that Ms. Warren did not seek treatment from a psychiatrist until
October 2011.
[498] The
Courts ability to independently corroborate Ms. Warrens evidence is
hindered in another way. Only several of the expert witnesses have monitored
the development of Ms. Warrens symptoms over the full time period
extending from MVA #2. Those professionals are an optometrist (Dr. Loopeker),
a psychologist (Dr. Wilensky) and a chiropractor (Dr. McLeod); these
medical professionals do not have the expertise to diagnose neurological
problems. Nor do they have the ability to diagnose her physical injuries.
[499] The
plaintiffs evidence also seems unreasonable and unlikely. At first she
experienced improvement. Then her health declined. She reached a plateau in
some aspects, improved in others and experienced dramatic decline in specific
areas. This evidence is somewhat confusing because there are a number of medical
opinions addressing different symptoms presented by Ms. Warren, making her
recovery difficult to track.
[500] If the
Court were to accept her evidence on a stand-alone basis, I would find that she
suffered severe physical injuries, pain and major cognitive deficit as a result
of MVA #2. I would accept that the development of her symptoms would have
improved and then declined. I would have to infer that Ms. Warrens brain
injury was unusual as it did not follow the normal course of improvement, with
the large majority of persons suffering from a mild concussion recovering in
three months to six months with no resulting post-concussion syndrome.
[501] At the
same time, Ms. Warrens case is unusual: she has brain lesions. The effect
of these lesions could strengthen the inference that her case falls into the
minority that do not recover from their concussions. However, she has not
supplied sufficient evidence to support that inference. That evidence could
only come from a neurologist or a neuroradiologist. Instead, she relies upon
the opinions of a psychiatrist (Dr. Ancill) and a neuropsychologist (Dr. Lanius),
who are unqualified to give that evidence. I rely upon Mr. Justice
Johnstons comments in Meghji v. Lee, 2009 BCSC 1542:
[28] At the risk of appearing to be overly semantic about this
analysis, I take it that what counsel want Dr. Malcolm to be able to do is
to testify by way of opinion about whether or not there has been some form of
harm or damage to the tissues of the brain of Ms. Meghji as opposed to
some form of harm or damage to the mind or emotions or personality of Ms. Meghji.
Whether there is a distinction between the brain as an organ of the body, on
the one hand, and the mind and personality of the person in whose body the
brain is found, on the other, is a metaphysical question that I hope I never
have to answer in a court of law. I am going to confine myself to what I
think is in issue, and that is Dr. Malcolm’s qualifications as a neuropsychological (sic)
and whether they permit him to provide the ready-made inference through opinion
on whether there has been physical harm or damage to the brain as an organ
of the body, and in my view, they do not.
[29] The statutory regime does not, in my view, go any further
than to allow testing, assessment, diagnosis of, and therefore opinions on the
abilities, aptitudes, interests, et cetera, or the behaviour, emotional, or
mental disorders, that is, disorders of the mind. These conditions may arise
with or without damage to the structure or tissues of the brain. They may be
associated with or flow from injury or damage to the brain itself. They may
arise from or flow from other causes. It does not necessarily follow that
because Dr. Malcolm is permitted by statute to test, assess, or diagnose
behavioural, emotional, or mental disorder that he must therefore be permitted
to give in evidence his opinion that the cause of any of these conditions stems
from an injury to the tissues or structures of the brain.
[30] In my view, Dr. Malcolm’s qualifications do not go so
far as to permit that opinion.
[31] That does not say that Dr. Malcolm cannot give, in
evidence, his opinion based upon the results of his testing, nor does it
prevent Dr. Malcolm from giving an opinion on whether the test results
as evaluated by him are of a nature, kind, or quality seen in people who have
been diagnosed as having had organic brain injuries.
[32] In my view, the distinction drawn by Mr. Justice Clancy
in Knight remains appropriate, and that is, Dr. Malcolm is
qualified to give his opinion on the cognitive and behavioural sequelae of
brain injuries and to indicate the relative likelihood of any cognitive and
behavioural abnormalities being the consequence of a traumatic brain injury,
but to paraphrase Mr. Justice Clancy, it does not permit him, that is, Dr. Malcolm,
to diagnose physical injury and the manner in which it was incurred.
[502] I accord Ms. Warrens
evidence little weight. I will exercise caution in considering her reported
symptoms and expert opinion that rely heavily on her complaints in developing
their assessment.
Adverse Inference for Failing to Call Dr. Devonshire
[503] The
plaintiff opted to not call Dr. Devonshire as a witness, even though she
was named on her witness list. Dr. Devonshire is a neurologist who met
with Ms. Warren in 2008 on two occasions with regard to her MRI results
that revealed brain lesions.
[504] The
defendant seeks an adverse inference drawn against the plaintiff for failing to
call Dr. Devonshire.
[505] An adverse
inference may be drawn by the court when, in the absence of an explanation, a
party fails to call a witness who could have knowledge of the fact and would be
assumed to be willing to assist that party: Kokanee Mortgage MIC Ltd. v. Concord
Appraisals Ltd., 2000 BCSC 1197 at para. 68.
[506] Plaintiffs
counsel explained that Dr. Devonshire was unavailable to testify for the
increased length of time required by the defence. Defence counsel had informed
plaintiffs counsel one month before trial commenced that he would need an
additional two hours for cross-examination of the witness.
[507] I find that
scheduling alone is an insufficient reason for not calling a witness.
[508] Furthermore,
the proposed witness could possibly have shed light on the plaintiffs
neurological condition after the accident. Her evidence was particularly
important for this case on the issue of causation.
[509] There are sufficient
grounds to draw an adverse inference here, but I do not need to rely upon such
an inference to determine the issue of causation.
Causation
[510] The
central issue in this case is whether the plaintiff has established the
defendant has caused the extent of the injuries alleged by the plaintiff.
[511] The
plaintiff argues that MVA #2 caused her to sustain physical injuries, chronic
pain, cognitive dysfunction and psychiatric disorder.
[512] Ms. Warren
denies that her brain lesions discovered in her brain after MVA #2 have caused
her symptoms. She submits that her brain lesions were asymptomatic before the
accident and were either rendered symptomatic by MVA #2 or made her brain
vulnerable to injury.
[513] The
defendant takes the position that MVA #2 did not cause a compensable injury. In
the alternative, if there was a compensable injury, it was minor and transient;
it was fully resolved by June 5, 2008 when Ms. Warren met with Dr. Turnbull.
Law
[514] The
plaintiff must satisfy the Court, on a balance of probabilities, that but for
the defendants negligent act, she would not have sustained her injury. The
but-for test is the general test for factual causation. The negligent conduct
must be substantially connected to the injury. This test was most recently
affirmed and set out in Clements v. Clements, 2012 SCC 32:
[8] The
test for showing causation is the but for test. The plaintiff must show
on a balance of probabilities that but for the defendants negligent act, the
injury would not have occurred. Inherent in the phrase but for is the
requirement that the defendants negligence was necessary to bring about
the injury ― in other words that the injury would not have occurred
without the defendants negligence. This is a factual inquiry. If the plaintiff
does not establish this on a balance of probabilities, having regard to all the
evidence, her action against the defendant fails.
[9] The
but for causation test must be applied in a robust common sense fashion.
There is no need for scientific evidence of the precise contribution the
defendants negligence made to the injury. See Wilsher v. Essex Area Health
Authority, [1988] A.C. 1074 (H.L.), at p. 1090, per Lord
Bridge; Snell v. Farrell, [1990] 2 S.C.R. 311.
[10] A
common sense inference of but for causation from proof of negligence usually
flows without difficulty. Evidence connecting the breach of duty to the injury
suffered may permit the judge, depending on the circumstances, to infer that
the defendants negligence probably caused the loss. See Snell and Athey
v. Leonati, [1996] 3 S.C.R. 458. See also the discussion on this issue by
the Australian courts: Betts v. Whittingslowe (1945), 71 C.L.R. 637
(H.C.), at p. 649; Bennett v. Minister of Community Welfare (1992),
176 C.L.R. 408 (H.C.), at pp. 415-16; Flounders v. Millar, [2007]
NSWCA 238, 49 M.V.R. 53; Roads and Traffic Authority v. Royal, [2008]
HCA 19, 245 A.L.R. 653, at paras. 137-44.
[515] The trial
judge must adopt a robust and pragmatic approach to determining if a plaintiff
has established that the defendants negligence caused her loss: Clements
at para 46. At the same time, causation need not be established with scientific
precision: Snell v. Farrell, [1990] 2 S.C.R. 311 at para. 29. Where
causation is established by inference only, it is open to the defendant to
argue or call evidence that the injury was inevitable (Clements at para. 11).
[516] The
plaintiff must also establish legal causation, which arises once factual
causation is proved. Legal causation is examined at the damages stage of the
analysis. The plaintiffs injury must be a reasonably foreseeable consequence
of the defendants negligence. Reasonableness is assessed by examining whether
it was foreseeable that a person of ordinary fortitude would suffer the injury
at issue: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at paras. 12,
18. It is a basic principle of damages in tort law that the defendant need not
put the plaintiff in a better position than his original position and should
not compensate the plaintiff for any damages he would have suffered anyway.
This principle is referred to as the crumbling skull rule. At the same time,
the defendant must take his victim as he finds him (the thin skull rule): Blackwater
v. Plint, 2005 SCC 58 at para. 78 – 79.
Chart Tracking the Plaintiffs Medical History
[517] As an aid
for determining causation, I have organized key findings relating to the
plaintiffs symptoms admitted as evidence at trial in a chart. It attempts to
instill some chronology into the evidence compiled on her symptoms, with the
qualification that this is not a fulsome summary of the evidence and is not
solely relied upon in the determination of causation.
Year | Month, Day | Consulted With | Nature of Consultation/ Relevant Findings (if any) |
2008 | Feb 9 | Richmond Hospital | emergency nursing assessment · · · · · · |
| Feb 20 | Brooke Radiology – Dr. Williamson | x-ray of spine: · · · |
| Feb 21, 22 | Dr. McLeod | consultation |
| Feb 26 | Dr. Fulton | x-ray: pelvic ultrasound normal results |
| Mar 5, 7, 11, 14, 20 | Dr. McLeod | consultation |
| Mar 10 | Dr. Wilensky | first consultation – interview |
| Mar 14 | Dr. Koch | interview and assessment: Based on an incomplete assessment, Dr. Koch believed she |
| Mar 25 | Richmond Hospital | delayed whole body bone scan with additional oblique views of results reported on Mar 30: mild degenerative changes in the spine; no specific findings of |
| Mar 26 | Canadian Diagnostic Centres (referring physician Dr. McKenzie) | MRI scan of her brain; reveals ten high signal lesions measuring No evidence of cerebral contusion or extra-axial hemorrhage (in |
| Mar 31 | Vancouver General Hospital | emergency nursing assessment: presenting complaint of nerve pain final diagnosis: anxiety |
| Apr 2 | Dr. John Stewart | examination: Dr. Stewart did not observe anything to suggest cognitive |
| Apr 4, 14 | Dr. McLeod | consultation |
| Apr 5 | Dr. Loopeker | consultation – plaintiff provides summary of symptoms; no exam plaintiff reports difficulty walking through large spaces and |
| Apr 11 | GF Strong Rehab Centre (Ms. Rose) | consultation: plaintiff self-reports the following symptoms: · · · · · · |
| Apr 16 | Dr. Wilensky | interview |
| May 1 | Dr. Wilensky | interview |
| May 2, 30 | Dr. McLeod | consultation |
| June 2, 6, 13, 20, 27, 29 | Dr. McLeod | consultation |
| June 4 | Dr. Loopeker | consultation – plaintiff seeking new, lighter weight glasses plaintiff did not express any concerns about visual clarity she said she did not experience eyestrain, blurring or diplopia plaintiff reported feeling emotionally, physically and examination: found reduced near point of convergence; oculomotor skills normal |
| June 5 | Dr. Turnbull | consultation: plaintiff reported no longer having a ringing sensation in her Dr. Turnbull observed the plaintiff move about with agility slight tenderness in upper trapezius on both sides of neck and plaintiff diagnosed with soft tissue injuries; no neurological recommended consult with neuroradiologist prepared medical legal report on June 23 |
| July 31 | Dr. Wilensky | interview |
| Aug 6, 19 | Dr. Wilensky | interview |
| Aug 11, 15, 22 | Dr. McLeod | consultation |
| Sept 4, 9, 17 | Dr. Wilensky | interview |
| Oct 8 | Dr. Wilensky | interview; conducted PTSD diagnostic for the last time |
| Oct 10 | Dr. McLeod | consultation |
| Nov 10, 13, 26 | Dr. McLeod | consultation |
| Dec 2, 5 | Dr. McLeod | consultation Dr. McLeod suggests to the plaintiff that she should consult |
2009 | Jan 5 | Dr. Mintz | consultation: plaintiff provided Dr. Mintz with her medical (no mention of MVA #1 or #2 in that medical history) |
| Jan 9 | Dr. Williams | initial consultation: plaintiff reported moderate to severe pain in jaw examination: plaintiff was able to open mouth fully; found moderate, myofascial parafunction was suspected as a significant and perpetuating radiographic results: no jaw related pathology identified |
| Feb 24 | Dr. Hossack | consultation: plaintiff diagnosed with chronic pain syndrome (no findings drafts report on Feb 26 based on this meeting |
| Feb 26 | Dr. Elliott Weiss | examination: full range of motion in cervical spine; excellent power; Dr. Weiss observes that the plaintiffs self-reported Dr. Weiss organizes a repeat MRI |
| Mar 7 | St. Pauls Hospital | MRI scan of head: approx. 15 small round and oval lesions found assessment: lesions highly suggestive of multiple sclerosis and |
| Mar 24 | Dr. Lanius | interview + tests |
| Apr 2 | Dr. Lanius | interview + tests Dr. Lanius prepared report on Sept 2, 2011, opining the |
| Apr 6 | Dr. Loopeker | brief exam plaintiff attended with complaint of excessive peripheral Dr. Loopeker modified the glasses; plaintiff did not return |
| Apr 7, 22 | Dr. McLeod | consultation |
| May 5 | Dr. Hossack | Dr. Hossack records plaintiffs complaint of feeling frustrated |
| May 28 | Dr. Hershler | examination: movements of lumbar spine fluid; evidence of soft tissue neurological exam normal recommended MRI of spine prepared report on the basis of this consultation on June 2 |
| July 9 | UBC MS Clinic | no MS-associated findings; normal neuro-opthalmic exam |
| Sept 15 | John Oldham | first consultation for physiotherapy |
| Oct 8 | MRI on spine | normal results (discussed in 2011 Hershler Report) |
2010 | Feb 10 | Dr. Mintz | reviewed treatment by Dr. Hershler discussed avoiding aggressive massage and chiropractic work |
| Mar 25 | Dr. Loopeker | full exam – normal findings; plaintiff still complains of visual-spatial difficulties |
| Apr 20 | Dr. Mintz | plaintiff reported feeling as if she was moving up the ladder |
| July 19 | Dr. Wilensky | interview
|
| Sept 13 | Dr. Hershler | examination: Dr. Hershler reviews MRI of spine: normal major improvement generally in all areas where plaintiff had Dr. Hershler noted plaintiff had been receiving pulsed report prepared on Oct 18, 2011 |
| Dec 1 | Dr. Wilensky | interview |
| Dec 13 | Dr. Loopeker | consultation |
2011 | Jan 19, 26 | Dr. Wilensky | interview |
| Feb 3 | Mr. Oldham | last treatment |
| Feb 9 | Dr. Wilensky | interview |
| Feb 15 | Dr. Loopeker | vision therapy |
| Mar 1, 8, 25 | Dr. Loopeker | vision therapy |
| Mar 21 | Dr. Hershler | examination: same findings as Sept 13, with exception of the neck (plaintiff does observes the plaintiff otherwise moves shoulders, arms and spine plaintiff can tolerate pressure into sacrum and coccyx |
| Apr 19, 21, 27 | Mr. Siquera | physiotherapy session |
| May 2, 25 | Mr. Siquera | physiotherapy session |
| May 3 | Dr. Loopeker | vision therapy; Dr. Loopeker reports visual midline shift prepares medical legal report on Aug 30 |
| June 10, 20 | Mr. Siquera | physiotherapy session |
| July 13 | Dr. Ancill | interview opined plaintiff likely sustained a concussion and suffered a Dr. Ancill prepared his medical legal report on Aug 11 |
| July 15 | Dr. Jung | interview |
| July 22 | Dr. Williams | exam some improvement in jaw-related pain; favourable prospects for prepares medical legal report on Aug 25 |
| July 27 | Dr. Jung | interview |
| July 27 | Mr. Siquera | physiotherapy session |
| Aug | Dr. Wilensky | (no specified date) Dr. Wilensky had phone conversation with plaintiff. This is Dr. Wilensky diagnosed major depressive episode and PTSD – |
| Aug 3 | Dr. Mintz | last consultation – discussed follow-up appointment to rule out note from Dr. Hershler stating plaintiff should be weaned off prepared report on Aug 9: diagnosed post-concussion syndrome; PTSD; severe soft tissue (no reported examination of plaintiff) |
| Aug 3, 22 | Mr. Siquera | physiotherapy session
|
| Aug 11 | Dr. McLeod | re-examination – report prepared on Aug 18 improvement noted; largest concern was neck; plaintiff had diagnosed her with moderate to severe whiplash to upper back and |
| Aug 16 | Dr. Jung | interview |
| Aug 17 | Dr. Boyle | examination; prepared independent medical legal report concluded plaintiff suffered from myofascial strain to the Dr. Boyle had plaintiff perform an extension of her little likelihood of causal relationship between pelvic at most, Ms. Warren suffered a mild traumatic brain injury |
| Aug 24 | Dr. Jung | interview prepares report on Sept 1: diagnoses PTSD in remission; major depressive disorder (partial |
| Aug 25 | Dr. Hershler | examination plaintiff can tolerate soft tissue massage; plaintiff complained of persistent neck pain; she reports Dr. Hershler prepares report on Oct 18 based on consultations |
| Sept 2 | Dr. Lanius | report |
| Sept 17 | Mr. Siquera | physiotherapy session |
2012 | Jan 27 | Dr. Lanius | interview + tests second report prepared on Feb 3: Dr. Lanius
opined further |
Causation ─ Physical
Injuries
[518] The
plaintiff has reported a number of physical injuries resulting from MVA #2. It
is helpful to specify those injuries.
[519] Ms. Warrens
evidence indicates she complained of pain in her pelvis, upper and lower back, tailbone,
neck and throat, chest, head and jaw. She suffered from numbness and nerve
pain. She complained of stiffness in her neck and lower back. She experienced
muscles spasms in her low thoracic region.
[520] Ms. Warren
also alleges she sustained a mild traumatic brain injury (in other words, a concussion)
in MVA #2. She claims she suffers from post-concussion syndrome, involving
the following physiological symptoms: fatigue, nausea, dizziness, headaches,
tingling, difficulty with vision (spatial awareness, sensitivity to movement and
problems with focusing), loss of memory, tinnitus, hypersensitivity to light
and noise and cognitive difficulties. She also claims she suffered amnesia.
[521] At the
outset of this analysis, I note that there is not a single piece of medical
evidence that indicates an organic basis for these complaints. The scans of Ms. Warrens
bone structure and brain indicated she was normal (aside from the lesions), and
did not reveal any physiological evidence to explain her symptoms.
[522] Of course,
not all of her complaints can or need to be proved with a MRI.
[523] I find
that MVA #2 did cause some physical injury to the plaintiff: it caused her to
suffer mild soft tissue injury in her back and neck. These soft tissue injuries
were resolved in one year. I further find that she sustained a concussion from
the accident. Her concussion was resolved by June 2008. No neurological damage
stemmed from that injury.
[524] I accept
that not all symptoms will emerge immediately post-accident, so I accord less
weight to the emergency nursing assessment from the Richmond General Hospital
noting that she did not report any pain in her cervical spine or neck on
February 9, 2009.
[525] On April
28, 2008, Dr. Stewart made some observations on Ms. Warrens physical
condition, but his opinion was limited to examining her neurological condition.
His comments do not provide insight upon whether she sustained soft tissue
injuries.
[526] With
regard to her soft tissue injuries, I rely heavily upon Dr. Turnbulls findings
in June 2008 of: slight tenderness in the upper trapezius muscles on both
sides of the neck and the paraspinal muscles in the low thoracic region and
upper lumbar region are tender to palpation. He believed she had sustained
soft tissue injuries from MVA #2. There is no other opinion from a medical
doctor on Ms. Warrens physical symptoms in 2008.
[527] It would
have been helpful to have her GP Dr. McKenzies evidence before the Court.
[528] It also
would have been helpful to have a physiatrists evidence before the Court on
her presenting symptoms in the months subsequent to the accident.
[529] Dr. Turnbulls
findings were later confirmed by Dr. Boyle, who diagnosed mild myofascial
strain from which she would have quickly recovered. I found him to be a thorough
and reliable expert. I accord his evidence significant weight, subject to the
limitation that his opinion was provided three and a half years after the
accident.
[530] Dr. McLeods
findings were not particularly helpful. Her report makes general observations
on decreased range of motion and ability to extend, flex or bend. She does not
specify when she made those findings. She did not make any comments on the
progress, or lack thereof, of Ms. Warrens symptoms, beyond slow
improvement. Yet, she contradicted that statement in her testimony. In any
event, Ms. Warren stopped meeting with Dr. McLeod around April 2009, just
over a year after the accident.
[531] Dr. Weiss
report, prepared after his examination of Ms. Warren on February 26,
2009 noted a normal physical examination.
[532] The only
other physician to examine Ms. Warren within the first year following MVA
#2 was Dr. Mintz, on January 5, 2009. However, his report only appears to
take her clinical history. In that meeting, she only discussed her adverse
reaction to the medication she was taking, Gabapentine.
[533] I believe
it is telling that the consultations leading up to and taking place in 2010
document the return of Ms. Warrens health and I infer from that evidence
that her physical health was normal.
[534] I do not
accord weight to Dr. Hershlers examination of Ms. Warren on
May 28, 2009. He did not seem to be particularly observant. His report
attributes her presenting symptoms to MVA #1. His diagnosis is also
problematic: severe soft tissue injury to the cervical spine, severe soft
tissue injury to the lumbar spine and severe injury to the sacrum, right
sacroiliac joint and pelvic floor ligaments. This diagnosis is completely
disproportionate with prior findings regarding her physical symptoms. I note
that he did not have Dr. Turnbulls report provided to him. I also note
the only objective basis for his findings were palpation of her back, a
slightly more prominent sacrum and a somewhat restricted movement of the head
and neck. Her movements were otherwise normal. He relied extensively upon her expression
of pain.
[535] There is
also sufficient evidence to establish that Ms. Warren sustained a minor concussion
from the accident. The emergency nursing assessment from the Richmond General Hospital
reported that she had a minor head injury as well as facial and head pain.
[536] Even
though the MRI taken in March 2008 did not document any head injury resulting
from MVA #2, Ms. Warren was presenting symptoms that suggested she had
sustained a minor concussion. I draw this causal inference on the basis of her
reported symptoms to Ms. Rose at GF Strong in April 2008. She complained
of suffering from mild headache over her right temple. She had cognitive and
physical fatigue. She complained of hypersensitivity to noise. She had
difficulty thinking, processing information and reading. These complaints
indicate that it is likely she suffered from a concussion. By June 2008, Ms. Warren
reported being cognitively improved to Dr. Loopeker and Dr. Turnbull.
This recovery is in keeping with the typical trajectory of recovery for persons
that sustain a concussion.
[537] Finally, I
rely upon Dr. Boyles conclusion that she likely sustained a mild
traumatic brain injury, if any. He qualified this conclusion by noting she did
not have any objective basis to support a finding that she sustained a
concussion.
[538] I am not
satisfied, on balance, that but for the accident, Ms. Warren would not
have suffered neurological injury. Beyond evidence to suggest she suffered a
concussion, from which she recovered, there is nothing to support an inference
that she suffers from a neurological injury.
[539] I accept
that Ms. Warren had lesions on her brain. These lesions were probably
asymptomatic before the accident. I do not have any evidence to suggest these
lesions were rendered symptomatic by the accident.
[540] When Ms. Warren
met with Dr. Stewart on April 2, 2008, he concluded she had not presented
any indications of a neurological problem. Instead, he found her to be an
anxious person.
[541] Nor do I
have any evidence to suggest the lesions made Ms. Warren vulnerable to a
traumatic brain injury, other than the opinion of Dr. Lanius, who did not
support this proposition with any authority. He preferred to characterize this
proposition as common sense knowledge for neuropsychologists.
[542] In 2009, Dr. Weiss
and Dr. Hershler both found normal neurological condition. Dr. Boyle later
made a similar finding.
[543] Dr. Ancill
found Ms. Warren had suffered from a mild traumatic brain injury and found
she had continuing symptoms of post-concussion syndrome. He then found,
contradictorily, that the totality and persistence of her symptoms and
functional impairments could be fully accounted for by depression and pain. Nor
did he explain why his opinion differed from that of Dr. Stewart, whose
opinion he relied upon in preparing his report. I finally note that it was
beyond Dr. Ancills area of expertise to diagnose a brain injury.
[544] Dr. Lanius
also diagnosed the plaintiff with extensive cognitive impairments. His findings
are based upon subjective cognitive diagnostic tests that cannot be relied upon
for determining a brain injury or neurological disorder. His adversarial
behaviour in the courtroom prevented counsel from exploring the reliability of
his methods.
[545] I cannot
accord any weight to Dr. Loopekers findings relating to the visual
therapy he administered upon Ms. Warren, since brain injuries are beyond
his areas of expertise. In any event, I was not provided with any authority to
support the reliability of this form of treatment.
[546] The
absence of a neuroradiologist opinion significantly undermines Ms. Warrens
claim. The only other neurological opinions tendered to Court were from Dr. Stewart
and Dr. Turnbull, who did not diagnose any neurological problem.
[547] Finally, I
find the plaintiff has not satisfied me that there are no other possible causes
of her presenting. The evidence from Dr. Ancill and Dr. Lanius indicates
that psychological problems can present similar symptoms. The evidence clearly
establishes that Ms. Warren is an anxious person, which may very well have
manifested in a way that suggested ongoing neurological problems.
[548] I do not
accept that Ms. Warren continues to suffer from a neck extension problem.
[549] It is only
in 2011 that the plaintiff is documented to have an issue with the extension of
her neck. No doctors were permitted to extend her neck. Dr. Boyle had Ms. Warren
undertake a different extension exercise that showed indeed she could extend
her neck. I find it concerning that none of the medical experts were able to
pinpoint when Ms. Warrens neck extension problem arose or explain why. This
physical problem is certainly only documented in examinations conducted in
2011. This is confirmed by the testimony of Dr. McLeod. The plaintiff has
not tendered any proof to explain why her necks condition would decline in
2011, when previously it was improving. Given her credibility is impugned as a
witness and in view of Dr. Boyles conclusion that her neck extension
problem was not objectively founded, I do not find her neck extension problem
documented in 2011 is causally related to MVA #2.
[550] I cannot
find that Ms. Warren suffered a pelvic injury from MVA #2.
[551] The pelvic
ultrasound performed on Ms. Warren on February 20, 2008 revealed normal
results. Also, the delayed whole body scan performed on Ms. Warren at the
Richmond General Hospital did not indicate any specific findings of abnormality
to explain her symptoms.
[552] Two
doctors expressly did not find that she had suffered from pelvic injury as a
result of MVA #2: Dr. Stewart and Dr. Boyle.
[553] Dr. Turnbull
makes no note of pelvic issues arising from his examination of the plaintiff,
even though Ms. Warren said she met with her for her pelvic symptoms.
[554] Dr. Hossacks
report on February 24, 2009 does not specify the location of Ms. Warrens
pain.
[555] Dr. Hershler
documents Ms. Warrens response to palpations in the left groin as
painful. He diagnoses a severe impact injury to her pelvic floor ligaments. He
was not provided with her pelvic ultrasound to review.
[556] There is
no evidence from other medical doctors in the first year to suggest that Ms. Warren
suffered from a pelvic injury. Dr. McLeod noted problems with rotation in Ms. Warrens
pelvis. She was not provided with the pelvic ultrasound or the report of Dr. Stewart.
[557] I also do
not accept that MVA #2 caused Ms. Warrens jaw injury, despite Dr. Williams
opinion. Dr. Williams did not meet with Ms. Warren until a year
following the accident. She also qualified her opinion by finding that Ms. Warrens
jaw problem could be attributed to parafunction.
[558] Finally, I
dismiss the claim that Ms. Warren suffered amnesia post-accident. Dr. Ancill
opined that Ms. Warrens memory of the accident was fragmented and
discontinuous. On the other hand, Dr. Boyle expressly found she had not
suffered from amnesia.
[559] In view of
the statement taken from Ms. Warren four days after MVA #2 that revealed a
fairly detailed description of the accident, I reject the claim that she
suffered amnesia.
Causation ─ Psychological Injuries
[560] Ms. Warren
also says MVA #2 caused her to develop anxiety, PTSD, somatoform disorder and
depression.
[561] The
principles to be applied in assessing psychological injury claims were
summarized in Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318 in para. 12:
1. The
plaintiff must establish that the pain, discomfort or weakness is
"real" in the sense that the victim genuinely experiences it.
…
2. The
plaintiff must establish that his or her psychological problems have their
cause in the defendant’s unlawful act.
3. The
plaintiff’s psychological problems do not have their cause in the defendant’s
unlawful act if they arise from a desire on the plaintiff’s part for such
things as care, sympathy, relaxation or compensation.
4. The
plaintiff’s psychological problems do not have their cause in the defendant’s
wrongful act if the plaintiff could be expected to overcome them by his or her
own inherent resources, or "will-power".
5. If
psychological problems exist, or continue, because the plaintiff for some
reason wishes to have them, or does not wish them to end, their existence or
continuation must be said to have a subjective, or internal, cause. (NOTE: I
consider that this proposition must deal with the conscious mind, otherwise it
seems to me to beg the question; ….
6. If
a court could not say whether the plaintiff really desired to be free of the
psychological problems, the plaintiff would not have established his or her
case on the critical issue of causation.
7. Any
question of mitigation, or failure to mitigate, arises only after causation has
been established.
8. It
is not sufficient to ask whether a psychological condition such as
"chronic, benign pain syndrome" is "compensable". Such a
psychological condition may be compensable or it may not. The identification of
the symptoms as "chronic benign pain syndrome" does not resolve the
questions of legal liability or the question of assessment of damages.
9. It
is unlikely that medical practitioners can answer, as matters of expert
opinion, the ultimate questions on which these cases often turn.
10.
Mr. Justice Spencer, at trial in the Maslen case, put the overall
test quite correctly in these words:
[C]hronic
benign pain syndrome will attract damages … where the plaintiff’s condition
is caused by the defendant and is not something within her control to prevent.
If it is true of a chronic benign pain syndrome, then it will be true also of
other psychologically-caused suffering where the psychological mechanism,
whatever it is, is beyond the plaintiff’s power to control and was set in
motion by the defendant’s fault.
11.
There must be evidence of a "convincing" nature to overcome the
improbability that pain will continue, in the absence of objective symptoms,
well beyond the recovery period, but the plaintiff’s own evidence, if
consistent with the surrounding circumstances, may nevertheless suffice for the
purpose.
[562] The
assessment of causation in relation to psychological injury cannot accord too
much weight to the temporal link between the presenting symptoms and the time
of the accident. As noted by Madam Justice Ballance in K.T. v. A.S.,
2009 BCSC 1653:
[220]
Care must be taken not to overly rely on the temporal relationship between the
accident and the time that the plaintiff first reported psychological symptoms
to her physician. The onset of psychological injury is often not as obvious as
a physical injury; it can be subtle and may be undetectable in its early
manifestation. In instances where a temporal connection between the wrongful
act and the harm appears tenuous, causation may nevertheless be established
where other factors link those essential elements in a causative way. Having
said that, however, the massive time gap in the plaintiff reporting her
psychological symptoms is problematic.
[563] Madam
Justice Dickson in Gilbert v. Bottle, 2011 BCSC 1389 (Gilbert) also
cautioned against placing weight on the temporal relationship between the
accident and the presenting symptoms of psychological injury:
[62] In
some cases, causation is asserted based primarily on a temporal relationship
between the negligent conduct and the damage in question. In White v.
Stonestreet, 2006 BCSC 801, Ehrcke J. commented on the need for close
scrutiny of the evidence in cases of this kind. At paras. 74 and 75 he
stated:
74. The
inference from a temporal sequence to a causal connection, however, is not
always reliable. In fact, this form of reasoning so often results in false
conclusions that logicians have given it a Latin name. It is sometimes referred
to as the fallacy of post hoc ergo propter hoc: after this therefore
because of this.
75. In
searching for causes, a temporal connection is sometimes the only thing to go
on. But if a mere temporal connection is going to form the basis for a
conclusion about the cause of an event, then it is important to examine that
temporal connection carefully. Just how close are the events in time? Were
there other events happening around the same time, or even closer in time, that
would provide an alternate, and more accurate, explanation of the true cause?
[564] I find Ms. Warren
has failed to put forward sufficient evidence that she suffers from any
psychological disorder.
[565] Ms. Warren
was certainly shocked and upset by MVA #2. This would be a normal response from
an accident, but our law does not compensate victims for that kind of harm.
[566] On
February 9, 2008, the emergency nursing assessment noted that Ms. Warren
had been prescribed anxiety medication by her GP.
[567] Dr. Wilensky
met with Ms. Warren on March 10, 2008, and they discussed the MVAs. His
notes from that meeting do not clearly relate her psychological issues; it
seems that meeting was an initial interview to gather the facts on the MVAs.
[568] Dr. Koch
is the first mental health professional to evaluate Ms. Warrens psychological
condition. However, she obstructed this assessment by acting defensively,
refusing to complete the diagnostic tests and completing errands in their
meeting. He had tentatively diagnosed her with PTSD, panic disorder and a major
depressive episode, recommending that he meet with her again for re-evaluation.
[569] Ms. Warren
was diagnosed with anxiety after attending the Vancouver General Hospital Emergency
on March 31, 2008.
[570] She
presented as anxious to Dr. Stewart. She also reported feeling anxious to Ms. Rose.
[571] In June 2008,
the plaintiff had reported emotional improvement to Dr. Loopeker. Dr. Turnbull
had noted the plaintiff seemed bright, alert and cheerful upon examination.
[572] Obviously,
a psychologist or psychiatrists evidence would be particularly crucial for
assessing the plaintiffs mental health. Dr. Wilensky is the only treating
psychologist to have consistently met with the plaintiff after MVA #2.
[573] However, Dr. Wilensky
did not prepare his medical legal report until 2011, at which time he diagnosed
Ms. Warren with chronic PTSD and major depressive disorder. The report is
cursory: it does not provide any time frame to contextualize his findings so as
to measure the development of her symptoms. Also, it became apparent in
cross-examination that Dr. Wilensky had not administered the PTSD
diagnostic upon Ms. Warren since October 2008; that test considered an
unspecified MVA and the trauma of her sons birth. Dr. Wilenskys report
failed to disclose the scientific basis for his diagnosis of Ms. Warrens
major depressive syndrome. His clinical notations revealed Ms. Warren had
discussed other traumatic events with him, some of which she described in
detail in her testimony.
[574] I also
find it particularly striking that in Dr. Wilenskys report, when
expressing his opinion on causation, he concludes that her psychological
distress is caused by the inquiry of health professionals into her physical injuries:
The
ongoing psychological distress from the investigations and iatrogenic aspects
of treatment are therefore also caused by the accidents. For example, had it
not been for the accidents, Ms. Warren would not have had an MRI of her
brain that raised the possibility of multiple sclerosis. There has been no
positive diagnosis of this disease in her case but there has been considerable
emotional distress associated with further investigations and the possibility
of the illness being present. Thus, the accidents are causally related to the
continuous medical procedures and examinations that are highly stressful for Ms. Warren.
[575] I accept
that ongoing treatment for physical injuries can cause psychological distress.
However, the emotional trauma of discovering the presence of brain lesions is
separate and apart from MVA #2. Furthermore, Ms. Warrens ongoing
treatment seems to have been limited to massage therapy, chiropractic sessions
and physiotherapy ─ not particularly interventionist treatment.
[576] There are
other sporadic consultations with health professionals specializing in mental
health: Dr. Hossack, Dr. Lanius and Dr. Jung.
[577] On
February 24, 2009, Dr. Hossack diagnosed chronic pain syndrome. However,
she did not describe the basis for this finding. Later, in May 2009, Dr. Hossack
noted the plaintiff was complaining about being falsely labelled as suffering
from MS.
[578] In Dr. Lanius
report, which is based on two meetings he had with Ms. Warren in 2009, he
noted that with regard to depression:
… Ms. Warren
did not feel depressed during her examination by Dr. W.J. Koch, but that
she developed depression later, both in response to pain activity but also due
(sic) side effects of the medication that affected her respiratory system that
in turn evoked memories of her experience of anaphylactic shock during
childhood. Ms. Warren developed unstable blood pressure, initially with a
subsequent drop. She felt unable to breathe, was experiencing diplopia, as well
as vertigo. That resulted in her attending Emergency.
[579] Dr. Lanius
did not identify the date of that incident.
[580] He
determined her mood functioning was a product of exhaustion and change in her
cognitive functioning. As I have found earlier, she has not proved she
sustained neurological injury.
[581] Dr. Lanius
also documented Ms. Warrens past history of traumatic events, including her
post-partum depression after the birth of her third child. She had also described
intrusive thoughts and nightmares relating to MVA #2 and the birth of her first
child.
[582] Dr. Lanius
concluded this trauma history predisposed Ms. Warren to PTSD. He diagnosed
PTSD, administering a diagnostic in relation to a number of different traumatic
events, including but not limited to the MVAs.
[583] He
concluded the depressive symptoms were at least in part in response to the loss
of cognitive function.
[584] He further
diagnosed Ms. Warren with chronic pain disorder. The basis for the latter
finding is multiple General Medical Conditions and Psychological factors,
attributable at least to a significant extent to both the February 5 and 7
MVAs (sic). Evidently, this diagnosis is extremely imprecise.
[585] In 2011, Dr. Ancill
examined Ms. Warren 41 months after MVA #2. He found she suffered from
post-concussion syndrome. Depression, anxiety and pain acted as amplifiers of her
post-concussion syndrome symptoms.
[586] Dr. Ancill
surmised that Ms. Warrens depression was caused by her traumatic brain
injury. He later noted in his report that her depression was untreated.
[587] It was his
opinion that she did not suffer from PTSD or panic disorder at the time of her
consultation.
[588] He
concluded she suffered from chronic pain disorder, again based on both
psychological factors and a general medical condition. He then observed [a]s
Mrs. Warrens neck pain is her primary focus, the diagnosis is of Pain
Disorder. Of course, this neck pain was a new presenting symptom, not causally
related to MVA #2.
[589] Dr. Jung
met with the plaintiff on four occasions in July and August 2011. He diagnosed
PTSD in remission, major depressive disorder (partial remission), panic
disorder and pain disorder. It does not appear he conducted any tests to determine
these diagnoses. It seems he relied solely on her reported symptoms and previous
medical reports.
[590] I find there
is no evidence of a "convincing" nature to support her claim.
Certainly, her reported symptoms seem unreasonable and unlikely. Not only is Ms. Warrens
reaction disproportionate to the severity of the accident, there is no strong
independent evidence to corroborate her claims.
[591] On the
evidence, I find the plaintiff has convinced herself that the accident occurred
in a certain way and that she experienced certain symptoms. She has presented
this story to her treating doctors who have relied upon the accuracy of her
reported symptoms. These doctors have found support for their diagnoses in
other medical reports, that similarly rely upon the accuracy of plaintiffs
reported symptoms. This evidence superficially seems reliable, but its
foundation is fictitious.
[592] I turn to
the issue of damages.
Damages
Non-Pecuniary Damages
[593] Non-pecuniary
damages compensate the plaintiff for pain, suffering, loss of enjoyment of life
and loss of amenities. This type of compensation must be fair to all parties.
This is done in part by comparing the circumstances at issue with other cases
of similar circumstances. A non-exhaustive list of relevant factors for the
court to consider when determining an appropriate award for non-pecuniary loss
was developed by Madam Justice Kirkpatrick in Stapley v. Hejslet, 2006
BCCA 34:
[46] The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:
(a) age
of the plaintiff;
(b) nature
of the injury;
(c) severity
and duration of pain;
(d) disability;
(e) emotional
suffering; and
(f) loss
or impairment of life;
I
would add the following factors, although they may arguably be subsumed in the
above list:
(g) impairment
of family, marital and social relationships;
(h) impairment
of physical and mental abilities;
(i) loss
of lifestyle; and
(j) the plaintiff’s stoicism (as a factor that
should not, generally speaking, penalize the plaintiff: Giang v.
Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).
[594] However, a
non-pecuniary damages award will ultimately turn on the particular
circumstances of the case.
[595] The
plaintiff claims she suffers from severe chronic pain and profound cognitive
dysfunction. She proposes an award at the top end of the spectrum for this
head of damages: $275,000.00. She relies on the following authorities:
(i)
Harrington v. Sangha, 2011 BCSC 1035 ($210,000.00);
(ii)
Chowdhry v. Burnaby (City), 2008 BCSC 1337 ($200,000.00);
(iii)
Grewal v. Brar, 2004 BCSC 1157 ($294,000.00);
(iv)
Dilello v. Montgomery, 2005 BCCA 56 ($200,000.00);
(v)
Spehar (Guardian ad litem of) v. Beazley, 2002 BCSC 1104
($280,000.00) (affirmed 2004 BCCA 290);
(vi)
Izony v. Weidlich, 2006 BCSC 1315 ($275,000.00);
(vii)
Gilbert ($200,000.00).
[596] In Harrington,
the plaintiff was 45 years old at the time of trial. She suffered extensive
physical injuries, including limited movement in her left arm and shoulder,
traumatic brain injury and dramatic change in her personality.
[597] In Chowdry,
the plaintiff was 64 years old at the time of the accident. He suffered PTSD
and major depression as a result of his injuries. He was catatonic for six
months after the accident. His improvement was slow. He also suffered from
physical injuries, including back, neck and shoulder pain. The trial judge
found it was likely he suffered a mild traumatic brain injury as a result of
the accident. He was found to have a large measure of who he was given the
impact upon his character and behaviour.
[598] In Grewal,
the plaintiff was 25 years of age when she sustained injuries in a motor
vehicle accident. She was diagnosed with incomplete quadriparesis, causing her
pain throughout her body as well as limitations in her motor and sensory
functions. These injuries were permanent. She had also suffered from
depression. These injuries were devastating for her and her young family.
[599] In Dilello,
the plaintiff was discovered unconscious at the scene of the accident. She
sustained panic, neck pain, numbness in her hands and extreme pain from x-rays.
She had multiple fractures to her spine, which had to be supported by a brace
that was secured to screws in her skull. For a month she lay in traction to
remain still, relying on others to live. She was 19 years old at the time of
the accident.
[600] Spehar
involved a plaintiff who was 16 years of age at the time of the accident. She
was discovered unconscious at the scene of the accident. She suffered a seizure
en route to the hospital. She was diagnosed as having suffered from a severe
brain injury. Her emotional, cognitive and behavioural functions were
devastated as a result.
[601] Izony
involved a plaintiff that had suffered extensive and significant physical
injuries from the accident. He underwent surgery which caused him to develop
multiple system organ failure. His mobility was affected. He could no longer
operate his business and enjoy activities he had formerly engaged in. He was
still self-sufficient. Additionally, the plaintiff had suffered from a mild
traumatic brain injury, and his cognitive abilities were impaired. He was 55
years old at the time of the accident.
[602] Gilbert
involved a plaintiff who suffered a traumatic brain injury with permanent
sequelae, a fractured clavicle and soft tissue injuries. She had permanently
lost her capacity to work and to engage with others emotionally.
[603] The
defendant relies on Roeske v. Grady, 2007 BCSC 15, affirmed in 2008 BCCA
88. In this case, the plaintiff did not meet the burden of proof of
demonstrating she suffered a brain injury as a result of two relatively minor
accidents. It was the opinion of her treating neurologist that she had MS. Despite
the fact that not all of her symptoms could be attributed to this condition,
the court found she had not met her burden of proof. The court awarded
$7,500.00 for mild soft tissue injuries in relation to the first accident and
$15,000.00 for the moderate soft tissue injuries caused by the second accident.
[604] All of
these cases relied upon by the plaintiff involve severe or catastrophic injuries
that significantly impacted the lives of the plaintiffs. Notably, the accidents
were violent. These cases are simply not comparable to the facts found in this
case. I find them to be of no assistance.
[605] At the
same time, the plaintiff has established moderate physical injuries resulting
from MVA #2, including soft tissue injuries to her back and a concussion.
[606] She
suffered from pain in the first year as a result of those injuries. Her ability
to move was impaired, but she enjoyed improvement in her first year.
[607] Ms. Warren
suffered from a concussion and striking symptoms of cognitive deficit as a
result of that injury. This affected her for the five months subsequent to the
accident, impacting her ability to properly fulfil her role as mother and house
maker, which is clearly the joy of her life.
[608] In view of
my finding that Ms. Warren had completely recovered from those injuries
that are attributable to MVA #2, I award the plaintiff $50,000.00 in
non-pecuniary damages.
Past Income Loss
[609] I decline
to consider this head of damages. There is insufficient evidence to suggest
that Ms. Warren lost income as a result of MVA #2 that she would have
earned had the accident not occurred. No compensable loss arises under this
head of damages.
Loss of Future Earning
Capacity
[610] The
essential question under this head of damages is whether there is a substantial
possibility that lost capacity will result in pecuniary loss. A future
possibility will be taken into consideration so long as it is a real and
substantial possibility and not mere speculation: Ruscheinski v. Biln,
2011 BCSC 1263. Two questions are raised in this analysis: (1) whether the
plaintiffs earning capacity has been impaired by her injuries and, if so, (2)
what compensation should be awarded for the resulting financial harm that will
accrue?
[611] Is there a
real and substantial possibility of a future event leading to a loss of income?
[612] The
challenge that Ms. Warren faces is that by her own admission, she planned
to return to the workforce when her son Gregory reached grade seven, or 13
years of age. There is no evidence beyond her opinion, the opinion of her
husband and the vague testimony of her friends on this point. The evidence does
indicate she had not worked (beyond helping her husband and one project with
her husbands client) since 1997. Before that she had worked part-time from
1991 onward.
[613] Interestingly,
despite Ms. Warrens claim that she has not worked in the period
post-accident, her 2010 Line 150 income says she earned $16,556.99 from Mr. Warrens
business. Her 2011 Line 150 income declares she earned $15,351.16.
[614] Nonetheless,
if we accept her timeline for returning to the workforce as true, her recovery
was complete within this timeline and the accident-caused injuries did not
impair her return to the workforce. I note that Dr. Boyle estimated she
could have returned to the work force within four to six weeks post-accident.
He made a similar finding about returning to her household duties.
[615] I decline
to grant any compensation under this head of damages.
Cost of Future Care
[616] The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore her to her pre-accident condition, insofar
as that is possible: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33
(S.C.). There must be (1) evidence of a medical justification for claims for
cost of future care and (2) the claims must be reasonable.
[617] Again, Ms. Warren
has failed to meet the burden of proof to establish cost of future care based
on my findings on causation.
Special Damages
[618] The
plaintiff is entitled to recover the reasonable out-of-pocket expenses she
incurred as a result of the accident.
[619] While the presentation
of evidence on special costs was unconventional, I do award some of the special
costs claimed on the basis that the plaintiff reasonably incurred those costs as
a result of her injuries caused by MVA #2. Claims must be for treatment or
prescriptions as per her treating physicians instruction. Some of the claimed
special damages do not have supporting receipts. Those claims are rejected. I also
reject novel therapeutic treatment claims. I reduced the claim for costs
attributed to Dr. McKenzie to remove the cost incurred for the serola belt
prescribed for Ms. Warrens pelvis.
[620] The
special costs that she is awarded are as follows, subject to adjustments that will
be undertaken by counsel to limit special damages recoverable up to February 8,
2009:
Ambulance (Richmond General Hospital) | $80.00 |
GF Strong (early response brain injury report) | 301.20 |
Heather McLeod (chiropractic treatment) | 5,296.12 |
Kelli Lawson (physiotherapy) | 304.50 |
Melissa Tull (massage therapy) | 189.86 |
Mike Murray (massage therapy) | 3,309.49 |
Nancy Buchan (physiotherapy) | 40.00 |
Parking (for Dr. McLeod, Dr. McKenzie, Ms. Tull, Mr. | 1,218.87 |
Robert McKenzie (family physician) prescription for pain | 1,200.13 |
Taxi charges (to see Dr. McKenzie) | 1,036.23 |
Housekeeping (Ms. Avila) | 5,338.50 |
[621] The total
award is $18,314.90, which will be reduced to account for the limited recovery
period.
Mitigation
[622] In view of
my findings on causation, I find that Ms. Warrens failure to attend some
health specialists until 2011 is because of new developments in her health, and
not her failure to mitigate.
Conclusion
[623] In sum, I
award the following quantum in damages.
Non-pecuniary damages | $50,000.00 |
Special Damages | 18,314.90 |
Total: | $68,314.90 |
[624] The total
is subject to adjustments to special damages to account for the temporal limit
on recovery, from February 8, 2008 to February 8, 2009.
[625]
I award costs to the plaintiff, but I limit this award by granting costs
to the defendants for the first two days of trial. Plaintiffs counsel was
unprepared for trial and delayed the proceedings.
L.D. Russell J.
_______________________________________
The
Honourable Madam Justice Loryl D. Russell