IN THE SUPREME COURT OF BRITISH COLUMBIA

Date:  20130425

Docket:  M084809

Registry:
Vancouver

Between:

Khatera Ahadi

Plaintiff

And:

Johncris Valdez,
Elenita Y. Valdez-Ipac

Defendants

Before:
The Honourable Madam Justice Adair

Reasons for Judgment

Introduction. 2

Liability. 4

(a)  The
Accident 4

(b)  Analysis
and findings on liability. 7

Causation and Damages. 12

(a)  Ms.
Ahadi’s pre-accident background. 12

(b)  Life
after the accident 15

(c)  The
Opinions concerning Ms. Ahadi’s injuries. 24

(i)  The
physical medicine and orthopedic experts (Drs. Hirsch, Stewart and McGraw) 25

(ii)  The
headache specialist (Dr. Robinson) 30

(iii)  Ms.
Ahadi’s treating psychologist and psychiatrist (Dr. Schimpf and Dr. Gopinath) 31

(iv)  The
independent psychiatrists (Dr. Lu and Dr. Solomons) 34

(v)  Ms.
Ahadi’s age and stage of life as contributing factors. 38

(d)  Would
Ms. Ahadi have experienced her problems but for the accident?. 39

(i)  Comments
on Ms. Ahadi’s credibility. 39

(ii)  Findings. 44

(e)  Non-pecuniary
damages. 48

(f)  Income
loss and loss of future earning capacity. 51

(g)  Costs
of future care. 55

(h)  Special
damages. 59

(i)  Mitigation. 60

Disposition and summary. 61

Introduction

[1]
In December 2005, the plaintiff, Khatera Ahadi, was a 16-year-old
student, in Grade 11 at John Oliver Secondary School.  She had a part-time job
working at the McDonald’s at Main St. and Terminal Avenue.  On New Year’s Eve,
Ms. Ahadi left work some time before 9 p.m. and got on the southbound Fraser bus
to go home.  Ms. Ahadi lived with her parents and siblings in the 1000 block of
E. 55th Avenue, east of Fraser St.  She got off the bus at the bus stop on the west
side of Fraser St., just south of E. 55th Avenue.  Some other passengers got
off at the same time.  Her mother and middle brother were waiting for her on
the other side of Fraser St., to walk her home.

[2]
There are no traffic lights at the intersection of E. 55th and Fraser
and no marked crosswalk.

[3]
The defendant Johncris Valdez was driving his mother’s car south on
Fraser St.  He lived in the 1200 block of E. 57th Avenue, and was on his way
home from a friend’s.  He had been travelling in the curb lane, then switched
to the left lane, so that he could turn left at E. 57th.  There was another vehicle
to his right.

[4]
Mr. Valdez’s car hit Ms. Ahadi as she was crossing Fraser St.  There is
a dispute about where, exactly, Ms. Ahadi was when she was hit.  Ms. Ahadi says
that she was in the crosswalk and had the right of way, and that Mr. Valdez was
obligated to stop to allow her to cross Fraser St.  Mr. Valdez says that Ms.
Ahadi was not in the crosswalk and he had the right of way, and that Ms. Ahadi
was obligated to yield to him.

[5]
Ms. Ahadi asserts that, as a result of the accident, she sustained a
broken left leg and other physical injuries.  In addition, Ms. Ahadi says that
she has developed serious psychological and psychiatric conditions (including
post traumatic stress disorder, major depressive disorder and pain disorder) as
a result of the accident.  Ms. Ahadi claims that she continues to feel the
effects of injuries suffered in the accident and that every aspect of her life
has been, and continues to be, seriously affected as a result of the accident.
Ms. Ahadi seeks non-pecuniary damages, damages for loss of income-earning
capacity and cost of future care, and special damages.

[6]
The defendants deny any liability for the accident, and they say that Ms.
Ahadi’s claim should be dismissed.  They say in the alternative that, even if
Ms. Ahadi can establish that Mr. Valdez’s negligence caused the collision (and
they plead that Ms. Ahadi was also at fault), she cannot show, on a balance of
probabilities, that her current problems are caused by the accident.  They say
that any compensation by way of damages should therefore be both modest and
subject to reduction on the basis that Ms. Ahadi has failed to mitigate her
damages.

[7]
Accordingly, I must first determine liability for the accident.  If I
determine that Mr. Valdez was at fault, then I must also consider whether fault
should be apportioned.  If I determine Mr. Valdez was solely at fault and that
the defendants are liable, then I must go on to determine the nature and extent
of the injuries suffered by Ms. Ahadi as a result of Mr. Valdez’s negligence,
and the compensation to which Ms. Ahadi is entitled.

Liability

(a)      The Accident

[8]
Ms. Ahadi described her usual routine coming home from work at
McDonald’s.  She would take the bus south on Fraser St. and get off at the bus
stop just south of the intersection of 55th Avenue and Fraser St.  There are
street lamps along Fraser St.  The bus stop itself is about 90 or 100 feet from
the corner.  Ms. Ahadi explained that she would walk back, north, to the corner
of 55th Avenue, and then cross Fraser St. and continue east on 55th until she
reached home.  Ms. Ahadi’s usual practice was to cross at the unmarked
crosswalk on the south side of the intersection at 55th Avenue and Fraser St.

[9]
Ms. Ahadi testified that, on December 31, after getting off the bus, she
walked down to the corner of 55th Avenue.  A few others had gotten off the bus
with her.  She explained that, although she had not talked to her family before
leaving work, her mother and brother were waiting for her on the other side of
Fraser St.  She recalls that, before the accident, she saw them standing at the
south-east corner, across from where she was.

[10]
Ms. Ahadi’s mother, Mrs. Ahadi, testified that she and her middle son
had walked down 55th Avenue to Fraser St. to meet Ms. Ahadi when she got off
the bus.  According to Mrs. Ahadi, before the accident, she and her son were
waiting on the south-east corner of the intersection.

[11]
Ms. Ahadi testified that, before she stepped off the curb to cross
Fraser St., she checked for traffic.  There were two cars going north, and they
had stopped for her.  She recalled that there was one vehicle travelling south,
but this vehicle was going slow enough that Ms. Ahadi was sure it was going to
stop for her to cross Fraser St.  As Ms. Ahadi recalled, there was nothing in
the other lane, furthest away from her, going south.  She described it as “like
an empty gap.”

[12]
Mr. Manjinder Grewal, who witnessed the accident and testified at trial,
was driving the southbound vehicle that Ms. Ahadi identified as slowing down
for her.  At the time, Mr. Grewal was living on E. 59th Avenue, and he was on
his way home from a friend’s.  He was travelling south on Fraser St., in the
curb lane, and was planning to turn right onto 59th Avenue.  He was behind the
bus, which was travelling in the curb lane, and he recalled that it was slow,
so he also was travelling slowly.  Mr. Grewal testified that he saw three
people trying to cross Fraser St. at 55th, one in the lane in which he was
travelling and two more behind that person.  He recalled that he stopped his
vehicle at the north side of the intersection of 55th Avenue and Fraser St.  He
recalled that Ms. Ahadi was on the south side of the intersection, and he gave
a rough estimate that she was about ten to twelve feet in front of his vehicle
(give or take two or three feet).  According to Mr. Grewal, when he saw Ms.
Ahadi step down from the curb to cross Fraser St., he stopped his vehicle.  He
recalled that she crossed in front of his vehicle and then started running.

[13]
According to Ms. Ahadi, as soon as she got to the middle lane on the
west side of Fraser St., she was hit by Mr. Valdez’s car.

[14]
Mr. Valdez’s evidence is that he was travelling southbound on Fraser
St.  There was a car (most likely Mr. Grewal’s) on his right, about two or
three car lengths in front.  According to Mr. Valdez, as he was approaching the
intersection of Fraser St. and E. 55th Avenue, there was no traffic and he did
not recall seeing any vehicles stopped for a pedestrian.  His recollection was
that his speed was about 40 to 45 kilometres per hour.  He did not remember the
car on his right being stopped.  He said that, at the intersection, a girl came
out of nowhere, from his right, crossing to the other side of Fraser St.  Mr.
Valdez said that, although he slammed on his brakes, he could not stop in time
and hit her.  At trial, he did not recall seeing other pedestrians in the area.

[15]
According to Mr. Valdez, he was able to stop his car quite quickly after
applying his brakes.  Mr. Grewal’s recollection is that Mr. Valdez’s car
stopped just to the south of the intersection, about where the first
lane-marker is located.

[16]
Mr. Premil Lal also witnessed the accident and testified at trial.  He
and his wife had been on the same bus as Ms. Ahadi and got off with her at the
bus stop just south of 55th Avenue.  Mr. Lal recalled that he, his wife and Ms.
Ahadi all got off the bus, and then tried to cross the street when they were
behind the bus.  He recalled that cars were stopped, to give them a chance to
cross.  He recalled that Ms. Ahadi tried to run when the cars gave them a chance
to cross.  He recalled that the vehicle in the right (curb) southbound lane was
stopped, and he thought that Ms. Ahadi, he and his wife were crossing Fraser
St. about one car length in front of that vehicle.  According to Mr. Lal, he
saw the vehicle in the left southbound lane, and he recalled that when Ms.
Ahadi crossed into that lane, the car hit her.  As he recalled it, Mr. Lal and
his wife were still in the curb lane when the accident occurred.

[17]
Mr. Valdez’s car hit Ms. Ahadi on her left side at her knee.  Ms. Ahadi
recalled that she went over the hood, and hit the windshield.  This is
consistent with what the other witnesses observed.  Ms. Ahadi recalled thinking
that this was it for her, and that she was going to die.  She recalled that she
then hit the ground and everything went dark.  Then she remembers seeing her
mother over her and asking her if she was hurt.  Ms. Ahadi recalled screaming
that her leg was hurting badly.

[18]
Several people, including Mr. Grewal, Mr. Lal and his wife, helped get Ms.
Ahadi off the road and over to the sidewalk on the west side of Fraser St.
Police and ambulance arrived very quickly, and Ms. Ahadi was taken to
Children’s Hospital, where she was admitted for treatment, including surgery on
her leg.

(b)      Analysis and findings on liability

[19]
There is no issue that Mr. Valdez was driving his mother’s car with her
permission, so that if Mr. Valdez was negligent and his negligence caused the
accident, both defendants are liable.

[20]
Liability in this case depends on who had the right of way under the Motor
Vehicle Act, R.S.B.C. 1996, c. 318:  Ms. Ahadi or Mr. Valdez.  If Ms.
Ahadi was in a crosswalk, she had the right of way.  If she was not in a
crosswalk, Mr. Valdez had the right of way.  The defendants say that even if Ms.
Ahadi had the right of way, she was contributorily negligent.

[21]
One of the definitions of “crosswalk” in s. 119(1) of the Motor
Vehicle Act is:

the portion of a highway at an intersection that is included
within the connection of the lateral lines of the sidewalks on the opposite
sides of the highway, or within the extension of the lateral lines of the
sidewalk on one side of the highway, measured from the curbs, or in the absence
of curbs, from the edges of the roadway[.]

[22]
“Intersection” is defined in s. 119(1) to mean:

the area embraced within the prolongation or connection of
the lateral curb lines, or if none, then the lateral boundary lines of the
roadways of the 2 highways that join one another at or approximately at right
angles, or the area within which vehicles travelling on different highways
joining at any other angle may come in conflict[.]

[23]
Sections 179, 180 and 181 of the Act address rights of way
as between a driver and a pedestrian, and the duties of a driver.  They provide:

Rights
of way between vehicle and pedestrian

179 (1)  Subject to section 180,
the driver of a vehicle must yield the right of way to a pedestrian where
traffic control signals are not in place or not in operation when the
pedestrian is crossing the highway in a crosswalk and the pedestrian is on the
half of the highway on which the vehicle is travelling, or is approaching so
closely from the other half of the highway that he or she is in danger.

(2)        A pedestrian must not
leave a curb or other place of safety and walk or run into the path of a
vehicle that is so close it is impracticable for the driver to yield the right
of way.

(3)        If a vehicle is
slowing down or stopped at a crosswalk or at an intersection to permit a
pedestrian to cross the highway, the driver of a vehicle approaching from the
rear must not overtake and pass the vehicle that is slowing down or stopped.

. . .

Crossing
at other than crosswalk

180      When a pedestrian is
crossing a highway at a point not in a crosswalk, the pedestrian must yield the
right of way to a vehicle.

Duty of
driver

181      Despite sections 178,
179 and 180, a driver of a vehicle must

(a) exercise due care to avoid colliding with a pedestrian
who is on the highway,

(b) give warning by sounding the horn of the vehicle when
necessary, and

(c) observe proper precaution on
observing a child . . . on the highway.

[24]
It is undisputed that there are sidewalks on both the north and south
sides of 55th Avenue, and the west and east sides of Fraser St.

[25]
I find first that Mrs. Ahadi and her son were waiting for Ms. Ahadi on
the south-east corner of 55th Avenue at Fraser St., where the sidewalk is
located.  Mr. Lal suggested in his evidence that they were waiting further
south than that, in front of the house on the corner, which had a fence along the
front yard.  However, I conclude that he is probably mistaken in his
recollection.  The Ahadi family lived on 55th Avenue.  There was no good reason
for Mrs. Ahadi and her son to walk further south of the corner.  Mrs. Ahadi
testified that she and her son were waiting for Ms. Ahadi at the corner.  I
accept her evidence.

[26]
At this point, I am going to make some brief general comments about Ms. Ahadi’s
evidence concerning the accident and her credibility.  I return to the topic of
Ms. Ahadi’s credibility later in these reasons, when I discuss causation and
damages.

[27]
Since the accident, Ms. Ahadi has described what happened that evening
to a number of people, including eight experts who provided opinion evidence
for this trial.  The accident occurred a number of years in the past.  On the
first day of her examination-in-chief, Ms. Ahadi described the scene twice and
the second time through reversed directions of travel of two cars, which made
her evidence confusing.  Her examination-in-chief was then interrupted for
other witnesses, and two days later, towards the end of her
examination-in-chief, her counsel asked her to clarify the “two different
pieces of evidence” given earlier in the week.  Ms. Ahadi duly clarified the
directions of travel.  Ms. Ahadi’s evidence concerning the accident had some of
the quality of a story one had told many times, rather than a recounting of an
event one remembered from the past.  Nevertheless, Ms. Ahadi’s evidence
concerning what happened that evening is essentially consistent with the
evidence of the other witnesses, including Mr. Valdez, and, in my view, it is consistent
with the conclusion that she was crossing Fraser St. in the crosswalk.

[28]
Based on Ms. Ahadi’s evidence, after she exited the bus, she walked down
to the corner of 55th Avenue and Fraser St., to cross Fraser St.  However, Mr.
Lal recalled that he, his wife and Ms. Ahadi were not crossing at the
intersection, rather the three of them were somewhat further south, opposite
the house on the corner with the fence.  If Mr. Lal is correct, they would not
be in the intersection.  However, I find that Mr. Lal is probably mistaken in
his recollection about where Ms. Ahadi, in particular, was.

[29]
I reach this conclusion for several reasons.

[30]
First, Mr. Lal testified that, when they were at the curb on Fraser St.,
cars stopped for the three of them, to give them a chance to cross Fraser St.
Mr. Lal said this at least twice during his examination-in-chief.  Mr. Lal’s
evidence is consistent with traffic stopping at a crosswalk to allow
pedestrians to cross the street.  Moreover, I think it more likely that the
cars would have stopped for pedestrians who were waiting at the curb at an
intersection, rather than pedestrians who were some distance from the
intersection.  Mr. Lal’s evidence concerning cars stopping is consistent with Ms.
Ahadi’s, and her evidence is that she was at the intersection.

[31]
Second, Mr. Lal’s evidence is inconsistent with Mr. Grewal’s evidence
concerning both where he stopped his vehicle and where he saw Ms. Ahadi
crossing.  Mr. Grewal testified that he stopped his vehicle just to the south
of the north side of the intersection.  I infer that the vehicle Mr. Lal
recalled stopping in the curb lane southbound was Mr. Grewal’s, and Mr. Grewal
is likely in a better position than Mr. Lal to say where he stopped his vehicle.
Mr. Lal recalled that Ms. Ahadi, he and his wife were crossing Fraser St. about
one car-length in front of the stopped vehicle.  This would place them in the crosswalk
at the intersection.  Mr. Grewal recalled seeing Ms. Ahadi crossing at the
south side of the intersection.  His evidence supports Ms. Ahadi’s concerning
her location.

[32]
Third, Mr. Lal testified that, after the three of them got off the bus
and prepared to cross Fraser St., his wife was to his left, and Ms. Ahadi was
to his wife’s left.  Mr. Lal was, therefore, not in the best position to judge Ms.
Ahadi’s exact location.  That Mr. Lal recalled intending to cross Fraser St.
somewhat south of the intersection does not mean that Ms. Ahadi was also south
of the intersection.

[33]
Fourth, in my view, Mr. Grewal’s evidence that, after hitting Ms. Ahadi,
Mr. Valdez stopped just south of the crosswalk, and Mr. Valdez’s evidence that
he was able to stop quite quickly after hitting her, also support the
conclusion that Ms. Ahadi was in fact in the crosswalk when she was hit.

[34]
I find therefore that Ms. Ahadi was in fact crossing Fraser St. in a
crosswalk.  Accordingly, she had the right of way.  Mr. Grewal’s vehicle,
travelling in the right southbound lane, was stopped at the intersection for
pedestrians.  Mr. Valdez was travelling behind Mr. Grewal, in the left lane.  In
those circumstances, Mr. Valdez was obligated not to overtake and pass Mr.
Grewal’s vehicle:  see s. 179(3) of the Motor Vehicle Act.  But
for his failure to obey the rules of the road and to exercise reasonable care, Ms.
Ahadi would not have been hit and injured.  Mr. Valdez, accordingly, is at
fault for the accident.

[35]
However, the defendants say that, even if she had the right of way, Ms.
Ahadi should have ensured, before crossing into Mr. Valdez’s lane, that he was
stopping or would stop for her, and that her failure to do so means she is also
at fault for the accident.

[36]
I do not agree.

[37]
The legal principles applicable are conveniently summarized by Mr.
Justice Donald in Traynor v. Degroot, 2003 BCCA 483, at paras. 12-14:

[12]      The finding of no
contributory negligence is consistent with two decisions of the Supreme Court
of Canada on appeal from decisions of this court, Petijevich v. Law,
[1969] S.C.R. 257 and Coso v. Poulos, [1969] S.C.R. 757.  Mr.
Justice Hall gave the decision of the court in both cases.  In Coso,
supra, he referred with approval to the reasons of the trial judge, the late
Chief Justice Wilson, on the question of contributory negligence where the
latter said:

 Was the plaintiff guilty of contributory
negligence? He had the right-of-way and was entitled to expect that motorists
would respect it.  The truck did respect it. Was he not then entitled to expect
that vehicles to the south of the truck would observe the action of the truck
and act accordingly? I think he was.  I do not say that he might not, by the
exercise of extreme vigilance, have avoided this accident, but I do not think
that in the circumstances such a degree of vigilance was required of him.  I
find that the defendant is wholly liable.

[13]      The Supreme Court of
Canada reversed the attribution by this court of 20 per cent contributory
negligence and restored the decision of the trial judge holding the defendant
completely at fault.

[14]      In Petijevich,
supra, Mr Justice Hall said this:

On the other hand, the only evidence
lawfully before the Court regarding the contributory negligence, if any, of the
female appellant is that of the respondent that as he saw her she was running
or walking very fast and this was, as he says, within “a very very short
time” of the impact.  There is no evidence upon which any finding could be
made that the female appellant [started] across the highway in question without
looking to see if it was safe to do so or that she did anything to jeopardize
her own safety once she had made a substantial entry into that intersection.
She was then entitled to assume that the driver of a motor vehicle coming from
the north would obey the law and yield her right-of-way:  Toronto Railway Co.
v. King [[1908] A.C. 260, 7 C.R.C. 408.].

[38]
Here, Ms. Ahadi had the right of way, and she was entitled to expect
that motorists would respect it.  Mr. Grewal did respect it and stopped for
her.  Once in the crosswalk, Ms. Ahadi was entitled to assume that southbound traffic
approaching from behind Mr. Grewal’s vehicle would not overtake it.  She was
entitled to expect that Mr. Valdez would obey the law, as described in s.
179(3) of the Motor Vehicle Act, and act accordingly.  In that
light, her walking or running after she passed in front of Mr. Grewal’s vehicle
did not contribute to the collision, and Ms. Ahadi was not contributorily
negligent.

[39]
I therefore find that the defendants are 100% at fault for the
accident.

Causation and Damages

[40]
I will first describe Ms. Ahadi’s pre-accident background, describe her
life after the accident and review the opinion evidence concerning Ms. Ahadi’s
injuries.  Then I will set out my conclusions and findings on causation, and follow
with my analysis and discussion concerning the assessment of Ms. Ahadi’s
damages.

(a)      Ms. Ahadi’s pre-accident background

[41]
Ms. Ahadi was born in Kabul, Afghanistan, on August 1, 1989.  Her mother
was a teacher, and her father worked in a publishing company, where he was a
director.  Ms. Ahadi’s family lived in a big house, which they shared with other
relatives, including Ms. Ahadi’s grandmother.  Ms. Ahadi started school there.
Ms. Ahadi’s family left Kabul when the Taliban took over Afghanistan.  Ms.
Ahadi went with her grandmother to Pakistan, where an uncle lived.  Ms. Ahadi’s
parents and her brothers followed them later.  The family was in Pakistan for about
two years.  Ms. Ahadi attended school, and her parents also hired an English
teacher for her.  According to Ms. Ahadi, her English was the best in the
family.  Ms. Ahadi recalls that she was very happy while in Pakistan.

[42]
Mrs. Ahadi recalled that Ms. Ahadi was a very good child, very friendly,
neat, helpful and responsible.  She recalled that Ms. Ahadi was very happy when
the family moved to Pakistan, because she was able to continue her schooling
there.  Mrs. Ahadi recalled that, in Ms. Ahadi’s early years at school, she was
the best student in the class.  Mrs. Ahadi said that she was very proud of her
daughter.

[43]
Ms. Ahadi’s family immigrated to Canada in 2000, when she was 11.  Her
youngest brother was just a few months old.  At first, the family lived with an
uncle on E. 61st Avenue, before moving to the apartment on E. 55th.  Although
her parents knew some English, their English language skills were quite
rudimentary.  Ms. Ahadi therefore went along with her parents to doctors’
appointments and helped them fill out forms.  She recalls that her father took
English classes and then got a job.  Because her parents were either going to
school or working, Ms. Ahadi took on the responsibility of looking after her
brothers.  Both Ms. Ahadi and her mother recall that Ms. Ahadi was very happy
in Vancouver.

[44]
As Ms. Ahadi recalls, at first she found elementary school a little
difficult.  However, once she made some friends, she was very happy.  One of
her school friends was Asmaa Arshad, who testified at trial.  Ms. Ahadi and Ms.
Arshad have been close friends since about Grade 6.

[45]
Ms. Arshad testified that she and Ms. Ahadi used to do everything
together:  school classes, lunch, clubs, walking home from school.  They saw
one another outside of school and would go to the park and play soccer
together.  Ms. Arshad recalls Ms. Ahadi being very happy before the accident.

[46]
In September 2002, Ms. Ahadi entered Grade 8 at John Oliver Secondary
School.  She had been taking ESL classes for about three years, and these
continued at John Oliver.  Ms. Ahadi’s friends from elementary school,
including Ms. Arshad, were also students at John Oliver.

[47]
In Grade 8, Ms. Ahadi’s grades were reasonable.  She received Bs, with
one C-plus.  One of her teachers, Ms. Staples, who had Ms. Ahadi for Grade 8
ESL studies and Math, remembered Ms. Ahadi as being a very sweet girl, smiling,
friendly, co-operative, and with excellent work habits.  Ms. Staples recalled
that Ms. Ahadi’s English was quite good, although she struggled with Math.

[48]
In Grade 9, Ms. Ahadi received certificates in December 2003 and June
2004 for “Honour Roll Standing,” and in the Fall term received a certificate
for outstanding attendance.  In her Grade 9 academic subjects, Ms. Ahadi
received Bs and some C-pluses.  However, Math was still difficult, and she
received a C-minus grade.  Ms. Ahadi took Math at summer school.
Unfortunately, her grade was worse:  50%.

[49]
According to Ms. Ahadi, in Grade 10, her grades were good.  However, her
transcript shows that her grades in academic subjects were somewhat worse than
in Grade 9, and she did not achieve honour roll standing in Grade 10 (although
she did receive another certificate for outstanding attendance).  Ms. Ahadi
continued to find Math challenging, and she received another C-minus.  Nevertheless,
she explained that, although she had difficulty, she tried her hardest.  Ms.
Ahadi thought, at one point, that she wanted to be a medical doctor, but she
was not sure that she could cope with all of the blood.  She then switched her
ambitions from medicine to pharmacy.  According to Ms. Ahadi, at the end of
Grade 10, she was looking forward to Grade 11, including looking forward to Science
and Math.

[50]
In Grade 10, John Oliver presented Ms. Ahadi with certificates for
“silver” awards for her service to the school in the Lost and Found Club and
the Art and Poster Club.  Ms. Ahadi did volunteer work at the local community
centre and helped out at the pizza place where Mrs. Ahadi was working.  Ms.
Ahadi explained that she wanted some work experience, and she was also helping
out her mother, whose English was not yet very good.

[51]
Mrs. Ahadi recalled that, before the accident, Ms. Ahadi was very happy
and spent time with her friends.  Mrs. Ahadi also testified that Ms. Ahadi was
doing very well in school.  However, I am not convinced that Ms. Ahadi was
sharing her report cards, which were in English, in a meaningful way with her
parents.

[52]
Ms. Ahadi started working at McDonald’s in about August 2005, when she
turned 16.  She explained that she wanted to earn some money for herself, to
save up for her education and also to have some work experience, which she
believed was important for pursuing post-secondary studies.

[53]
Ms. Ahadi completed her first term in Grade 11 before the accident.  Her
grades in academic subjects were mixed, and some (in the sciences) were quite
poor.  Ms. Ahadi received 47% in Math.  On the other hand, she received 74% in
Spanish and 79% in English.

(b)      Life after the accident

[54]
Immediately after the accident, Ms. Ahadi was taken by ambulance to
Children’s Hospital where she was admitted for treatment and remained overnight.
Ms. Ahadi had sustained an undisplaced facture of the fibula in the middle
third of her lower left leg, as well as soft tissue injuries to her neck and
back and a bruise on her right hip.  A cast was applied to Ms. Ahadi’s left
leg, from the ankle to just above the knee.  Because the bone that had been
broken is a non-structural bone and non-weight bearing, a cast was not
medically necessary.  However, it was applied for comfort.  Ms. Ahadi was also
provided with a soft collar for her neck, also for comfort.  On January 1,
2006, Ms. Ahadi was discharged home on crutches, and prescribed Tylenol 3 for
pain.

[55]
Ms. Ahadi recalls that, when she got home, her leg was hurting very
much.  She described it as a very bad throbbing pain that kept her from
sleeping.  Her neck felt very stiff and was also bothering her a great deal.
Her shoulders and lower back were also sore.

[56]
Ms. Ahadi missed about two weeks of school at the beginning of the term
in January 2006.  She recalled that, when she went back to school after the
accident, she needed help with some things because she was on crutches.  She
said that other students made fun of her, and that they called her disabled and
laughed at her.  Ms. Arshad, who helped Ms. Ahadi at school while she was on
crutches, remembers this too.

[57]
According to Ms. Ahadi, shortly after the accident, she began having
disturbing nightmares, which, when she finally did fall asleep, would wake her up.
She explained that the nightmares made her feel very disturbed and restless, as
if she had been awake all night and was re-living the accident.  According to Ms.
Ahadi, she had little energy and little appetite for food.

[58]
Later in January, Ms. Ahadi was seen for follow-up at Children’s
Hospital, and her cast was removed.  On January 23, 2006, just after removal of
her cast, Ms. Ahadi saw her family doctor, Dr. Khunkhun, for the first time
since the accident.  Ms. Ahadi reported her nightmares and problems sleeping to
Dr. Khunkhun.  Ms. Ahadi recalled that she continued to use crutches for a
period of time even after the cast was removed.  She said that she was fearful walking,
and she felt anxious crossing the street or on sidewalks.

[59]
According to Ms. Ahadi, because she had missed some time at school, she
was behind in her school-work.  Because she was behind, she felt stress and
pressure to get the work done.  She was trying hard to keep up, but she felt
that things were piling up on her.  Ms. Ahadi recalled that she was having problems
concentrating, and that, although she was trying to study hard, nothing would
“stick” in her mind.  She said that she was also having “flashbacks” of the accident.
She explained that it would “play in my head like a slide-show.”

[60]
Ms. Ahadi’s end of semester grades in March 2006 were worse in some subjects
than her grades at the end of the previous semester.  She was failing Physics
and Math, and barely passing English.  However, her grades in Spanish and Human
Services were better.

[61]
In March 2006, Ms. Ahadi’s family moved from E. 55th Avenue to a new
home in Coquitlam.  However, in order not to lose credits, Ms. Ahadi continued
attending John Oliver to complete Grade 11.  Ms. Ahadi explained that her
father drove her and her brother to school in the morning.  They left home a
little after 4:00 a.m., and then she and her brother would go to a McDonald’s
near the school and go over notes or study, until it was time for school to
start.

[62]
However, according to Ms. Ahadi, the harder she tried to study, the less
she was able to concentrate.  She said that her mind would start wandering.
Images of the accident would flash in her head, “like a slide-show.”  Ms. Ahadi
recalled that this also happened in one of her classes.  She would go to bed
about 11:00 p.m. but it would take a long time for her to fall asleep.  She
recalled that her physical pain was almost the same:  a throbbing, aching pain in
her neck, shoulder, back and leg.

[63]
According to Ms. Ahadi, she was also stressed out and upset over her
grades, which she felt were all going downhill.  In fact, her final grades in
her Grade 11 transcript show a range, and are not unlike her final grades in
Grade 10.  However, Ms. Ahadi received failing grades in Physics and Math.  Nevertheless,
Ms. Ahadi went to summer school for Math, and received a grade of 71%.

[64]
Ms. Ahadi also received a “Gold” certificate for her service to John
Oliver in the “Impact Club” in her Grade 11 year.  At trial, Ms. Ahadi was
unable to recall what the “Impact Club” was.

[65]
Ms. Arshad recalled that after the accident, Ms. Ahadi was much quieter
for the rest of the Grade 11 school year.

[66]
In the summer before starting Grade 12, Ms. Ahadi was hired to work at
Hudson’s Bay Company (the “Bay”), part time, as a customer service person.  She
explained that she took the job to get experience, to earn some money for her
education and to be able to supply references when applying for post-secondary
education.  Ms. Ahadi worked part-time at the Bay until September 2011.

[67]
In September 2006, Ms. Ahadi began Grade 12 at Pinetree Secondary School
in Coquitlam.  Ms. Arshad had moved to Richmond.  Around this time, Ms. Ahadi
began doing some jogging and reported this to her Ms. Arshad, with whom she
communicated fairly regularly.  However, according to Ms. Ahadi, her physical
pain remained about the same as before.  At times her leg would bother her a
great deal, and her shoulder and back continued to ache.  Her headaches got
progressively worse.  Ms. Ahadi began attending physiotherapy in the fall of
2006.  As she recalled, she went to five sessions, but she did not provide
details about the nature of her therapy.

[68]
According to Ms. Ahadi, after a few months, she noticed that her
concentration was again a problem.  She felt that she was not absorbing
anything and felt very frustrated.  Ms. Ahadi testified that, in addition, she
started having “weird” headaches on the left side that would then travel all
down her head.  These headaches interfered with her studies.  According to Ms.
Ahadi, her sleep continued to be disturbed.  She recalled that she would wake
up in the morning feeling as if she had been awake all night.

[69]
Ms. Ahadi felt that she was falling behind and she was very stressed at
school.  She continued to feel that her grades were going “downhill.”
She felt very bad and upset about this.  According to Ms. Ahadi, she spoke to a
school counsellor, who knew that she wanted to be a pharmacist and to go to the
University of British Columbia.  Ms. Ahadi recalled that the counsellor told
her that her grades were not good enough to go to UBC.  According to Ms. Ahadi,
hearing this hit her “like a bulldozer.”  She explained that, before the
accident, the prospect of not getting into Sciences at UBC had not occurred to
her, because she was working very hard to get her grades up.

[70]
With respect to her Grade 12 year, Ms. Ahadi recalls that, generally,
her mood was worse than before.  She did not join any clubs at Pinetree, and
she said that she did not have any friends there.  Ms. Ahadi said that she did
not feel like talking to anyone, and at lunch time, she would either sit in the
library or go home.  She had friends (like Ms. Arshad) from her old school,
but, according to Ms. Ahadi, she had no interest in spending time with them
either.  She recalled that little things irritated her, and that she did not
want to go out with friends.  She said that she would take her anger out on
members of her family, and would later feel very ashamed.  According to Ms.
Ahadi, she felt like she had no control.

[71]
Mrs. Ahadi recalled that, after the accident, Ms. Ahadi was not very
happy at high school.  Mrs. Ahadi also recalled that, after the accident, Ms.
Ahadi was always very tired.  She recalled that Ms. Ahadi would complain her
leg was hurting and that she had a headache.  Mrs. Ahadi recalled that Ms.
Ahadi was withdrawn and did not socialize, and would get into arguments.  Mrs.
Ahadi recalled that Ms. Ahadi spent most of her time in her own room, and did
not want to engage in conversation.

[72]
Sometime in 2007, both Ms. Ahadi and Ms. Arshad joined Facebook.  According
to Ms. Arshad, she and Ms. Ahadi communicated often on Facebook, although Ms.
Arshad conceded that it was mostly her, rather than Ms. Ahadi, making the
postings.

[73]
In September 2007, Ms. Ahadi enrolled at Douglas College.  Her plan was
to see if she could bring up her grades so that she could be admitted to UBC in
Sciences.  However, Douglas College was not a success.  At trial, Ms. Ahadi was
unable to recall the courses she took there, although she thought they included
English, Science and Math.  According to Ms. Ahadi, no matter how long she
spent studying, she was unable to absorb information and nothing would stick.  Ms.
Ahadi said that socially, she felt very alone, depressed and sad at Douglas
College.  She explained that she did not want to talk to anyone and had her “own
little world.”  According to Ms. Ahadi, she had problems concentrating, and if
she could not concentrate, she would fall behind and could not keep up with her
school work.  This made her feel very depressed and “down.”

[74]
Nevertheless, Ms. Ahadi was also continuing to work part-time at the
Bay, mostly on weekends.  She explained that, at the beginning, work was okay,
but after a little bit, she was not happy.  During times when she felt
depressed and was having negative thoughts, she did not want to be at work, but
she explained that she would put on a “fake smile.”

[75]
According to Ms. Ahadi, during this time, she was keeping everything to
herself.  She explained that she was not seeing her family doctor because she
did not want to deal with her problems.  However, Ms. Ahadi said that the more
she kept to herself, the more things got to her and made her feel down.  She
said that at times, she felt as if it would be better if her life ended rather
than having to deal with all the stress, with school, with her concentration
problems.  However, she did not want to tell anyone how she was feeling.  In
addition, according to Ms. Ahadi, her leg was bothering her, and her shoulder
and back were getting worse.  She said that her headaches stayed the same, and
would come and go.  However, according to Ms. Ahadi, the more upset she got,
the worse they would be.  She said that she had flashbacks here and there, and
that they were almost the same as before, “like a slide-show.”

[76]
Mrs. Ahadi recalled that during this time, Ms. Ahadi was continuing to
spend time alone in her room.  Mrs. Ahadi thought Ms. Ahadi was depressed.

[77]
According to Ms. Ahadi, 2009 was a horrible year for her.

[78]
By early 2009, Ms. Ahadi was failing at Douglas College.  Despite
reducing her course load, she received a probation letter.  She had not told
her parents about her problems, and they did not know she was doing so badly
and was about to fail out of college.  Ms. Ahadi recalled being told by Douglas
College that she would not be allowed back, and she described this news as like
being “hit with a bulldozer.”  Ms. Ahadi recalled that she thought things would
be better if she were dead.  She said that she would go to bed crying, and had
thoughts of suffocating herself with a pillow.  She began a trial period on
anti-depressant medication.

[79]
Ms. Ahadi recalls that, around this time, in the first part of 2009, she
had a fight with her family, and she went to her room.  Her mother came in, and
Ms. Ahadi finally broke down and told her what was going on.  Ms. Ahadi
recalled that they both started weeping.  According to Ms. Ahadi, she then told
her mother everything:  about her problems at school and that she was not going
to be a pharmacist.  According to Ms. Ahadi, she felt as if she had
disappointed both herself and her mother, because she and her mother had high
expectations for her.  Ms. Ahadi felt that her family had made so many
sacrifices, and the idea that she had let them down depressed her even more.
However, Ms. Ahadi recalled that her mother told her that whatever Ms. Ahadi
wanted to do was fine.

[80]
Beginning in April 2009, Ms. Ahadi started seriously looking for full-time
work (as a possible alternative to school), and over the next several months
she contacted placement services and a number of potential employers, including
Fraser Health Authority and several financial services institutions.  In March
2009, before she left Douglas College, Ms. Ahadi also began investigating
various college pharmacy technician programs.  However, according to Ms. Ahadi,
she was rejected at both Vancouver Community College and BCIT.  She said that
this made her feel like a failure and that she did not deserve to live, because
everywhere she turned she was rejected.

[81]
In June 2009, Ms. Ahadi’s family doctor, Dr. Khunkhun, referred her to a
physical medicine and rehabilitation specialist, Dr. G. H. Hirsch, for
examination and assessment.  In his consultation report, Dr. Hirsch identified Ms.
Ahadi’s emotional and psychological reaction to her circumstances after the
accident as her primary impairment, and recommended psychiatric and
psychological assessment and treatment.

[82]
In early July 2009, Ms. Ahadi was sent by her solicitors for an
independent medical examination by a psychiatrist, Dr. Shaohua Lu.  I will
discuss Dr. Lu’s reports and opinions in more detail below.  However, Dr. Lu
diagnosed Ms. Ahadi as having post-traumatic stress disorder (“PTSD”), major
depression and pain disorder and said that the accident and subsequent pain
played “a direct and contributing role” in the development of the PTSD and
major depression.  He recommended a referral to a psychiatrist at the earliest
opportunity.  However, no referral was made.

[83]
In early September 2009, Ms. Ahadi was sent to a second psychiatrist,
Dr. Kevin Solomons, for another independent medical examination, this time at
the request of the defendants’ solicitors.  Again, I will discuss Dr. Solomons’
opinions in more detail below.  At this point, I will simply observe that he
disagreed with Dr. Lu’s diagnosis of PTSD and with Dr. Lu’s conclusions
concerning the causes of Ms. Ahadi’s problems.

[84]
In January 2010, Ms. Ahadi was accepted into and began the pharmacy
technician diploma course at MTI Community College.  According to Ms. Ahadi, it
was the same program as was offered at Vancouver Community College, where she
had been rejected.  However, she was not satisfied with MTI, and felt that a
private college was beneath her.  She continued to feel depressed about her
circumstances.  She started seeing Dr. Khunkhun more regularly for counselling
and help with her depression and mood, and, according to Ms. Ahadi, Dr.
Khunkhun was also trying to find a psychiatrist or psychologist for her.

[85]
In June 2010, and as a result of a referral by her lawyer, Ms. Ahadi
began seeing Dr. Myron Schimpf, a clinical and forensic psychologist.  She had
eight scheduled sessions with Dr. Schimpf, from June to October 2010.  Dr.
Schimpf testified that he then did not see Ms. Ahadi again until April 2012.
According to Ms. Ahadi, in her sessions with Dr. Schimpf in 2010, he, like Dr. Khunkhun,
talked to her about looking at things in a positive way, rather than always
thinking about negative things.  She recalled that he told her to spend time
with friends and family and try and do things that could make her happy, even
just for five minutes.  Ms. Ahadi said that she took this advice and it helped
her forget what she was going through.  However, she would then feel guilty and
that would discourage her from continuing.

[86]
According to Ms. Ahadi, she was very unhappy while at MTI.  She said
that she thought the MTI courses were very easy, and that students who did not
know much English got the same grades as she did, so she was unsatisfied.  According
to Ms. Ahadi, while at MTI, she continued to have problems with concentration
and pain.  She recalled that, when she was taking the Skytrain, she had an
image of herself jumping off the bridge.  It is unclear whether Ms. Ahadi
shared this image with Dr. Schimpf.  (Initially, Ms. Ahadi did not recall that
she was seeing Dr. Schimpf while she was at MTI.)

[87]
At trial, Ms. Ahadi did not recall continuing to have nightmares in
2010.  However, she testified that she still had headaches.  She described
these as being so bad that light would bother her, and she would have to wear
sunglasses.  Mrs. Ahadi also recalled that Ms. Ahadi complained about
headaches, and spent time in her room with the light off.

[88]
By September 2010, Ms. Ahadi had completed the course requirements for
her pharmacy technician diploma.  Although Ms. Ahadi described her grades at
MTI as merely good, in fact she received all As in her courses, and her lowest
grade was 88% in pharmacology.  Ms. Ahadi graduated with honours.

[89]
Ms. Ahadi then started working as a pharmacy assistant.  After working relatively
briefly at Riverview Hospital and a Shoppers Drug Mart outlet in the fall of
2010, Ms. Ahadi applied for and was hired to work at Ridge Meadows Hospital, in
a casual position.  In the spring of 2011, she moved to Eagle Ridge Hospital,
where she worked for two and a half or three months.  Her supervisor there,
Patricia James, testified that Ms. Ahadi was quick to learn and did not need
monitoring, was very good on the computer and was accurate in her work.  Ms.
James did not think that Ms. Ahadi had any problems with her day-to-day work.
She was unaware that Ms. Ahadi had any physical problems and, as far as Ms.
James was concerned, Ms. Ahadi appeared to be able to handle all of her work.  Ms.
James had no concerns.  Ms. James described Ms. Ahadi as very quiet but also
very pleasant.

[90]
Ms. Ahadi then applied for a position at the Pharmacy Drug Distribution Centre
in Langley, and began working there full-time in September 2011.  In due course,
Ms. Ahadi applied for and was successful in being hired as a permanent
full-time employee.  However, in order to be employed under the current regulatory
regime as a pharmacy technician (rather than a pharmacy assistant), Ms. Ahadi must
now complete the steps in the licensing process.  The official deadline is 2015.
However, according to Ms. Ahadi, her employer has told her she needs to
complete the process by the end of 2013 or she will lose her current job.  The
process involves some course-work and exams, and, despite how well she did in
her courses at MTI, Ms. Ahadi is worried she will fail, just like at Douglas
College.

[91]
In November 2011, when she was again at a low point, Ms. Ahadi began
seeing a psychiatrist, Dr. Hirekatur Gopinath, on referral from her family
doctor.  By that time, it had been over a year since her last therapy session
with Dr. Schimpf.  Ms. Ahadi saw Dr. Gopinath roughly once a month until June
2012.  As of trial, Ms. Ahadi had not seen a psychiatrist since her last
session with Dr. Gopinath.

[92]
Ms. Ahadi began seeing Dr. Schimpf again in April 2012, and he saw her
five times over the next several months.  Ms. Ahadi stopped seeing Dr. Schimpf
in August 2012.

[93]
According to Ms. Ahadi, the treatment and sessions with Dr. Gopinath and
Dr. Schimpf have been helpful for her, at least “a little bit.”  She said that
Dr. Schimpf has helped her with her anger issues and how she feels about life.
Ms. Ahadi said that, as of trial, she was not having nightmares, but still did
not feel rested when she woke up in the morning.  Nevertheless, she said that
she was feeling a little better.  Ms. Ahadi did not explain why she stopped
seeing Dr. Gopinath and Dr. Schimpf.

[94]
As of trial, Ms. Ahadi had recently become engaged to be married, in an
arranged marriage.  She appears to be ambivalent about the prospect of
marriage.

[95]
Mrs. Ahadi testified that, based on her observations, for the past two
years, Ms. Ahadi has been withdrawn and not well.  However, Mrs. Ahadi thought
that more recently, Ms. Ahadi was a little better and was spending more time
with family at home.  Mrs. Ahadi thought that Ms. Ahadi’s engagement might have
a positive effect on her daughter’s life, although she also said she told Ms.
Ahadi it was her choice to marry or not.

(c)      The Opinions concerning Ms. Ahadi’s
injuries

[96]
I had the benefit of a number of expert opinions concerning Ms. Ahadi’s
injuries, the consequences of those injuries and the prognosis.  I will briefly
review this evidence.

[97]
On the first day of trial, I was asked to rule on the defendants’
objections to the admissibility of expert reports from Dr. Khunkhun and Dr.
Verdizad (Ms. Ahadi’s current family doctor) that Ms. Ahadi’s counsel intended
to tender in evidence.  I ruled that:  the reports would be inadmissible at
trial, and that Dr. Khunkhun and Dr. Verdizad would not be permitted to
give opinion evidence; however, both would be permitted to testify as
non-expert witnesses.

[98]
In the result, Dr. Khunkhun was called as a witness in Ms. Ahadi’s
case.  However, both her examination-in-chief and her cross-examination were
relatively brief.  I think there was probably much more she could have been
asked and testified about during her examination-in-chief, but questions were
not put to her.

[99]
Dr. Khunkhun, who had been the family doctor for the Ahadi family since
their arrival in Canada in 2000 and until July 2010, testified about her
observations concerning Ms. Ahadi pre-accident.  She had never treated Ms.
Ahadi for any mood disorders or for anxiety; Ms. Ahadi did not report any nightmares.
Ms. Ahadi acted as her parents’ English interpreter.  After the accident, when Ms.
Ahadi had appointments with Dr. Khunkhun, Dr. Khunkhun recalled that Ms. Ahadi’s
tone of voice was flat, her appearance was very sad and Dr. Khunkhun did not
recall Ms. Ahadi smiling.  Dr. Khunkhun did not recall seeing sadness in Ms.
Ahadi before the accident.

[100]  Dr.
Verdizad was not called as a witness.

[101]  Except for
Dr. Schimpf, all of the experts who prepared reports for trial list
Dr. Khunkhun’s clinical records among the documents they reviewed for the
purposes of their reports and opinions.

(i)       The physical medicine and orthopedic
experts (Drs. Hirsch, Stewart and McGraw)

[102]  I am going
to begin with the evidence of Dr. G. H. Hirsch.  As I noted above, Dr. Hirsh is
a medical doctor with a specialty in physical medicine and rehabilitation.  A
consultation report dated June 25, 2009 prepared by Dr. Hirsch for Dr. Khunkhun
was admitted into evidence by agreement.  He did not testify at trial.

[103]  In his
report, Dr. Hirsh noted that, when he asked Ms. Ahadi to tell him her primary
concerns, she identified difficulty with sleeping and impairment of
concentration.  Some of the things he notes that Ms. Ahadi told him – for
example, that she used to be an above-average student, that she was continuing
to see a physiotherapist every few weeks, and that, three months before seeing
Dr. Hirsch, she had had repeat x-rays of her left leg which apparently did not
show union of the fibular fracture – were simply wrong.  Under the heading
“Impression,” Dr. Hirsch wrote:

Notwithstanding the reported
multi-site musculoskeletal symptoms, I was unable to disclose an impairment on
examination of the neck, back, left shoulder, left knee, or left ankle.
Examination of the neck and shoulder girdle revealed muscular tenderness.
Neurologic assessment was unremarkable.

Given today’s presentation and
reported symptomatology, I think that the primary impairment is Ms. Ahadi’s
emotional and psychological reaction to her circumstances after this
pedestrian/motor vehicle accident.  She warrants psychiatric/psychological
assessment and treatment as well as possible modification of her psychotropic
regimen.

I told Ms. Ahadi that from a musculoskeletal and neurologic
perspective, things are looking well.  She should remain active.  I told her to
participate in aqua exercises and to consider taking up yoga.

[104]  Dr. Nairn
Stewart is a medical doctor and, like Dr. Hirsch, is licensed to practice the
specialty of physical medicine and rehabilitation.  At the request of Ms. Ahadi’s
lawyer, Dr. Stewart examined and assessed Ms. Ahadi in June 2010 and again in
June 2012.  She prepared two reports and testified at trial.  Once again, some
of the background information set out in Dr. Stewart’s first report – for
example, that Ms. Ahadi attended physiotherapy for approximately a year – is
simply wrong.

[105]  Based on
her first examination of Ms. Ahadi, Dr. Stewart concluded that, in addition to
the broken fibula, Ms. Ahadi sustained soft tissue injuries to her neck and
back in the accident.  Dr. Stewart noted that Ms. Ahadi continued to experience
neck and back pain and secondary muscle tension headaches, with a migraine
component.  Dr. Stewart noted that Ms. Ahadi had symptoms of secondary thoracic
outlet syndrome in both arms, which Dr. Stewart thought was probably caused by
increased muscle tension (in response to pain) in the scalene muscles.
However, Dr. Stewart testified that Ms. Ahadi did not have any clinical signs
of the syndrome, and she did not diagnose Ms. Ahadi as having this condition.

[106]  In Dr.
Stewart’s opinion (and based on the symptoms Ms. Ahadi reported), Ms. Ahadi
probably also sustained vestibular injury in the accident, which, in Dr.
Stewart’s opinion, could account for Ms. Ahadi’s reported dizziness, nausea,
imbalance and at least some of her fatigue.  Dr. Stewart recommended that Ms.
Ahadi see a specialist for testing.  However, there was no indication that Ms.
Ahadi ever did this, or, if she did, what the results were.  Thus, Dr.
Stewart’s preliminary diagnosis was never confirmed.

[107]  Dr.
Stewart noted that since the accident, Ms. Ahadi had suffered from symptoms of
post traumatic stress, including nightmares and intrusive thoughts about the
accident.  However, Dr. Stewart made no diagnosis in this regard.  As of the
first assessment, Dr. Stewart also thought it was possible Ms. Ahadi had
sustained a mild brain injury in the accident.  However, based on the second
assessment, Dr. Stewart concluded this likely was not the case.

[108]  Dr.
Stewart recommended that Ms. Ahadi be provided with a personal trainer to
establish and monitor a regular gym exercising program (emphasizing stretching
and muscle relaxation) that Ms. Ahadi would be able to do on her own
indefinitely once a trainer was no longer involved.  In Dr. Stewart’s opinion, Ms.
Ahadi should see a counsellor for her “residual post traumatic stress symptoms,
anxiety and depression.”  Dr. Stewart is also of the opinion that Ms. Ahadi’s
injuries have adversely affected her work, schooling, household and leisure
activities.  Dr. Stewart observed that the recommended exercise program and
counselling might help Ms. Ahadi control her symptoms “somewhat,” but, since
(as of Dr. Stewart’s first assessment) more than four and a half years had
passed since the accident, “it is likely that she will continue to experience
all of her current symptoms and limitations over the long term.”  As of the
first assessment, Dr. Stewart thought that Ms. Ahadi would be limited to
part-time work over the long term.  Dr. Stewart modified this opinion somewhat
following the second assessment.  At that time, Ms. Ahadi was in fact working
full-time.

[109]  On
cross-examination, Dr. Stewart disagreed that she found no physical
abnormalities when she examined Ms. Ahadi.  Dr. Stewart said that Ms. Ahadi
appeared sad and had dark circles under her eyes, and that her “affect” was
flat.  Dr. Stewart said that these things are not normal; rather, they are
extremely unusual unless the individual is suffering from depression or has a
brain injury.  She noted Ms. Ahadi’s posture was abnormal in that Ms. Ahadi
held her head slightly forward, something that people with a neck injury often
do.  Dr. Stewart agreed that ideally, individuals with soft tissue injuries
heal with the passage of time, but noted that people hit as pedestrians seem to
recover less well.  She also noted that an injury to a young person disrupts
the person’s development and the person often does not recover as well as
someone ten years older.  Dr. Stewart strongly disagreed with the suggestion
that, on examination, she found that, objectively, Ms. Ahadi had recovered from
her injuries, although she did agree that she found no signs of impairment.
Dr. Stewart explained that a lack of objective signs did not mean that an
individual had recovered.  However, Dr. Stewart agreed that Ms. Ahadi’s
symptoms were based on Ms. Ahadi’s self-reports; by their nature, symptoms are
what the patient complains of.

[110]  Dr.
Stewart was asked about her review of Dr. Khunkhun’s clinical records and if
she noticed the absence of reports of headaches for about two and a half years
after the accident.  Dr. Stewart said she would not be surprised by the absence
of reports.  She explained that people who have chronic symptoms often do not
bother mentioning them and (as far as Dr. Stewart was concerned) the fact that Ms.
Ahadi did not report headaches did not mean that she was not having them.

[111]  In her
second report, Dr. Stewart stated that her opinion concerning the injuries Ms.
Ahadi sustained in the accident had not changed from the opinion expressed in
her first report, although based on review of further records, she considered
it unlikely Ms. Ahadi sustained a brain injury.  On cross-examination, Dr.
Stewart conceded that there were not many objective findings, apart from
tenderness and abnormal posture.

[112]  Dr.
Stewart recommended that Ms. Ahadi be provided with occupational therapy
intervention to help her plan and execute the completion of the necessary
studies to satisfy the requirements for licensing as a pharmacy technician.
Dr. Stewart went on to say:

I would recommend that Ms. Ahadi have ongoing psychiatric
monitoring and treatment.  She does not seem to have benefitted significantly
from psychotherapy but I would defer to the opinion of her treating psychologist
as to whether ongoing or at least occasional psychological intervention would
be of benefit.

[113]  In Dr.
Stewart’s opinion, even if Ms. Ahadi successfully completed the licensing
requirements for a pharmacy technician, “because of her fatigue . . . it would
be advisable for her to work on no more than a part-time basis.”

[114]  In
September 2010, a few months after Dr. Stewart’s first assessment, and at the
request of the defendants, Ms. Ahadi was examined by Dr. Robert McGraw.  Dr.
McGraw is a medical doctor with a specialty in orthopedic surgery.  Dr. McGraw
provided a report concerning his assessment, and a second report commenting on
Dr. Stewart’s first report.  He also testified at trial.

[115]  In Dr.
McGraw’s opinion, Ms. Ahadi sustained the following injuries as a result of the
accident:

1. Cervical spine –
musculoligamentous soft tissue injury not associated with neurological
impairment or fracture.

2. Thoracolumbar spine –
musculoligamentous soft tissue injury not associated with neurological
impairment or fracture.

3. Right hip – contusion.

4. Left lower leg – undisplaced fracture of fibula in the
middle third.

[116]  Dr. McGraw
noted that in his orthopaedic assessment, he was unable to detect any
significant impairment on examination of Ms. Ahadi’s neck, back, right and left
shoulders, left knee and left ankle.  Further, there was no neurological
deficit.  Dr. McGraw concurred with Dr. Hirsch’s conclusion (referred to above)
that Ms. Ahadi’s primary impairment is her emotional and psychological reaction
to her circumstances after the accident, and she warrants psychiatric and
psychological assessment.  Dr. McGraw noted that Ms. Ahadi admitted to “marked
psychological issues of anxiety and depression” and (among other things) told
him she had been seeing a psychologist once a month.  Dr. McGraw commented
that, as a physician, he was “very concerned” when Ms. Ahadi volunteered that
she had suicidal ruminations, and it was his view that Ms. Ahadi’s
symptomatology and behaviour required psychiatric assessment.

(ii)      The headache specialist (Dr. Robinson)

[117]  A number of
the medical doctors noted “headaches” among the symptoms Ms. Ahadi reported to
them.  Headaches were also symptoms that Ms. Ahadi mentioned at trial.  At the
request of Ms. Ahadi’s lawyers, Ms. Ahadi was assessed in June 2011 with
respect to this particular symptom by Dr. Gordon Robinson.  Dr. Robinson is a
medical doctor and neurologist, whose clinical practice is devoted to the
assessment and management of patients suffering from headache disorders.  Dr.
Robinson prepared a report and testified at trial.

[118]  Dr.
Robinson noted, as part of the background information reported to him by Ms.
Ahadi, that:

Since the accident, [Ms. Ahadi]
has had headaches.  She does not believe that these have improved over the
years.  At all times she has a mild dull throbbing discomfort on the left side
of her head.  Aggravators to her headaches are mainly emotional upset when
things are “getting to me.”

As she becomes upset the headache will increase and spread to
her entire head.  She did not feel nauseated or sensitive to light and sound.
Headaches are often moderately severe and frequently bad enough that she will
be unable to continue with her activities.

[119]  This
report to Dr. Robinson is at odds with Ms. Ahadi’s evidence at trial and what Dr.
Stewart states she was told by Ms. Ahadi.  However, when asked about this at
trial, neither Dr. Stewart nor Dr. Robinson expressed concern about how Ms.
Ahadi reported her symptoms to each of them.

[120]  Based on
his examination and assessment, Dr. Robinson said:

I believe that her history and
examination is consistent with a diagnosis of chronic headache related to head
and neck injury.

Headache is a common symptom
following head and neck injury.  Although most patients recover within weeks a
substantial number will develop chronic posttraumatic headache.  The
characteristics of these headaches are similar to commonly encountered primary
headaches within the general population . . . .

The diagnosis of chronic posttraumatic headache rests almost
entirely on a clear temporal relationship between the onset of headache and an
appropriate trauma.

[121]  Dr.
Robinson went on to say:

Although I would defer to a
psychiatrist or psychologist I believe that she does suffer from a substantial
mood disorder.  . . .

. . .

I believe her ultimate prognosis
is critically dependent upon successful management of her mood disorder.  There
have been trials of medications, and she did see a psychologist over a period
of months.  However, it appears that she does require more intensive psychiatric
treatment if there is going to be any improvement in her condition.

. . .

In her case I believe that the treatment of her headaches is
really the treatment of her mood disorder.  If her level of psychological
distress cannot be improved I doubt that there is any other treatment for
headaches that would be helpful.

[122]  On
cross-examination, Dr. Robinson confirmed that he had received Dr. Khunkhun’s
clinical records.  He agreed that the records showed Ms. Ahadi complained of
headaches during her appointment with Dr. Khunkhun on January 23, 2006, and the
next report of headaches is in August 2008, with some fourteen attendances in
between.

(iii)     Ms. Ahadi’s treating psychologist and
psychiatrist (Dr. Schimpf and Dr. Gopinath)

[123]  Dr. Schimpf
is a psychologist and an expert in clinical and forensic psychology.  As I
noted above, he saw Ms. Ahadi for counselling between June and October 2010.  After
a gap of 18 months, he resumed sessions with Ms. Ahadi in April 2012 and
continued until August 2012.  Dr. Schimpf prepared a report and testified at
trial.

[124]  In Dr.
Schimpf’s opinion, Ms. Ahadi meets the diagnostic criteria for PTSD and major
depressive disorder.  Dr. Schimpf reported that there had been “modest (but
nonetheless significant) improvement with reference to PTSD, as post traumatic
symptom severity was Moderate/Severe during the first series of treatments [in
2010], but had improved to Mild/Moderate” by the time treatment sessions began
on April 20, 2012.  Dr. Schimpf writes:

This improvement was particularly noticeable with reference
to the re-experiencing symptoms of PTSD (including intrusive memories,
nightmares, and flashbacks).  More specifically, when the first series of
treatment sessions commence[d] in June of 2010, Ms. Ahadi was experiencing
traumatic memories and vivid trauma-related flashbacks on a daily basis and
three or four nightmares a week, but she now states “mostly I’m over the
accident” and reports that she no longer thinks about the accident as much as
she previously did.

[125]  Although
he noted improvement in relation to PTSD, Dr. Schimpf reports “there has been
little or no improvement in depression,” and the symptoms have been and remain
“Moderate to Severe.”  Dr. Schimpf writes:

Ms. Ahadi’s sense that accident-related cognitive deficit and
school/educational disruption has irreparably disrupted her career path, and
therefore her life in general, may to some extent account for the
extent/severity and duration of depression in this case.  More specifically, it
emerges during psychotherapy that Ms. Ahadi feels very strongly that her career
path has been inexorably undermined and disrupted by the sequelae of the 2005
accident, to the point that she has an underlying sense of been [sic] cheated
out of achievement which she would otherwise have realized, and as a result of
same feels significant regret and bitter disappointment, which can contribute
to the development and maintenance/progression of Major Depression.

[126]  In Dr.
Schimpf’s opinion, the accident “is seen as the most likely cause of PTSD and
Depression in the current case, as pre-morbid/pre-injury emotional status and
general functioning appear to have been good.”

[127]  Dr.
Schimpf says that, although he is confident in the diagnosis and cause, “the
degree and duration of the psychopathology” in Ms. Ahadi’s case is “somewhat
surprising.”  As a partial explanation, Dr. Schimpf says that:

[A]dolescence is a critically important developmental stage .
. . and trauma during [t]his period . . . can be potentially (and inordinately)
impacting.  These explanations notwithstanding, the writer remains somewhat
surprised and puzzled with reference to the severity and longevity of
psychopathology in this case.

[128]  Dr.
Schimpf’s recommendation, on the basis that the symptoms of major depressive
disorder and, “to a lesser extent,” PTSD remain relatively severe and ongoing,
was that Ms. Ahadi continue with bi-weekly structured cognitive behavioural
psychotherapy, “until she stabilizes.”  Dr. Schimpf also recommended
psychiatric and pharmacological intervention.

[129]  Dr.
Gopinath began treating Ms. Ahadi in November 2011, at the request of Dr.
Verdizad.  He first saw her on November 30, 2011, and then saw her again for
treatment on December 15 and 29, 2011, January 12, 2012, February 9, 2012, March
2, 2012, May 24, 2012 and June 3, 2012.  As of his video-deposition on
September 15, 2012, June 3 was the last time Dr. Gopinath saw Ms. Ahadi.

[130]  In Dr.
Gopinath’s opinion, despite treatment, Ms. Ahadi’s condition remained
essentially the same.  In his opinion, “there is no doubt that Ms. Ahadi
presents with multiple” psychiatric diagnoses, according to the DSM-IV-TR.
Specifically, Dr. Gopinath diagnosed Ms. Ahadi as having moderate to severe
PTSD, dysthymia and major depression, generalized anxiety disorder, and
probably also pain disorder.

[131]  In Dr.
Gopinath’s opinion, Ms. Ahadi

needs to go through significant changes in her lifestyle
adopting more relaxation exercise practices, stress reduction techniques, and
cognitive techniques for the management of distressing negative catastrophic
thoughts.  She also needs to engage in some long-term psychotherapy, at least
for a year, to develop much more mature coping defences to change the direction
of her life.

[132]  Dr.
Gopinath says that Ms. Ahadi requires long-term antidepressant combinations for
the control of her depression, PTSD and anxiety, as well as long-term cognitive
and other forms of psychotherapy, indefinitely.

[133]  With
respect to his diagnosis of major depression, Dr. Gopinath notes that:

[Ms. Ahadi] had intense
obsessions and self doubts about her own capabilities in the 2 years following
the accident . . . .  She had chronic sadness with no capacity to experience
any happiness, . . . feeling life to be useless unless she achieved her goals
of getting into UBC and the Pharmacy Degree.

. . .

Her strong belief of her life being ruined from the accident
due to the symptoms affecting her academic performance at the crucial time of
her life with failure to achieve her desired life goals has caused chronic
persistent and severe depressive features including suicidal thoughts.  . . .
[M]ost of her attention and concentration, lack of motivation and withdrawal
are related to her PTSD and Depression.  Unfortunately her failure to achieve
the life goals has prolonged and exaggerated her symptoms of Major Depression .
. . .  Her depression is further influenced by chronic pain.  In her situation
it is clear that her chronic sense of failure, depression, anxiety and feeling
of loss of control has contributed [to] persistence of chronic multiple pains
though there is no actual medical condition that could be attributed in causing
the pain.

(iv)     The independent psychiatrists (Dr. Lu and
Dr. Solomons)

[134]  Ms. Ahadi
was also assessed by two independent (non-treating) psychiatrists.

[135]  At the
request of Ms. Ahadi’s lawyers, Dr. Lu, a medical doctor and psychiatrist,
examined and assessed Ms. Ahadi in July 2009 and again in May 2012.  He
prepared reports based on each of his assessments, and a third report
commenting on and criticising the report of the defendants’ psychiatric expert,
Dr. Solomons.  Dr. Lu also testified at trial.

[136]  In Dr.
Lu’s opinion, Ms. Ahadi meets the DSM-IV TR criteria for:  PTSD, Major Depression
and “Pain Disorder Associated with Psychological Factors and a General Medical
Condition.”  In his opinion, all three conditions are inter-related.  As of his
first assessment, Dr. Lu considered the prognosis for Ms. Ahadi to be unclear,
since she had not received “full treatment” for any of her conditions.  However,
his view at the time was that, given Ms. Ahadi’s relatively healthy background,
and with comprehensive treatment and counselling, Ms. Ahadi could have a full
recovery.  Nevertheless, Dr. Lu stated that Ms. Ahadi had had psychiatric
symptoms for over three years, and the early age of onset and the duration of
the psychiatric illnesses increased the likelihood that Ms. Ahadi would
experience residual symptoms and decreased the chance of full recovery.

[137]  In Dr.
Lu’s opinion, there was no indication that Ms. Ahadi would have developed
a major depression, based on her pre-existing medical records and history.
Furthermore, in Dr. Lu’s opinion, the accident and subsequent pain play a
direct and contributing role in the development of Ms. Ahadi’s PTSD and major
depression.

[138]  In his
first report, Dr. Lu noted that:  Ms. Ahadi felt her average academic
achievement after the accident was due to her inability to maintain attention
and concentration; she had done well in earlier grades prior to the accident;
and she had always enjoyed sciences and biology and her hope was to be a
pharmacist.  Dr. Lu did not have Ms. Ahadi’s school grades when he examined Ms.
Ahadi and prepared his reports.  He received them a week or so before he
testified.  Dr. Lu said that he did not ask for them before because, in his
view, Ms. Ahadi’s symptoms were evident.  Dr. Lu said that the information
disclosed in the grades would have been helpful but would not have changed his
opinions.

[139]  Dr. Lu
assessed Ms. Ahadi again in May 2012.  In Dr. Lu’s opinion, Ms. Ahadi continued
to meet the DSM-IV TR diagnostic criteria for PTSD, chronic major depression,
and pain disorder, and the salient clinical psychiatric features from his
previous evaluation remained unchanged.  Dr. Lu noted that there had been
recent improvement for Ms. Ahadi’s overall psychiatric presentation and
clinical symptoms.  However, in his opinion, Ms. Ahadi had significant residual
symptoms of PTSD, depression and Pain Disorder.  Dr. Lu stated that PTSD,
depression and pain disorder are lifelong conditions, and even with good
treatment and improved symptoms, Ms. Ahadi “is likely to have lifelong
psychiatric symptom fluctuation and periodic deterioration in function with
reminders of the accident.”  In Dr. Lu’s opinion, Ms. Ahadi has a long-term
relative disability as a result of her multiple psychiatric illnesses.

[140]  Dr.
Solomons is also a medical doctor and psychiatrist.  He examined and assessed Ms.
Ahadi once, in September 2009.  A detailed account of his interview with Ms.
Ahadi is included in an appendix to his report.  Dr. Solomons testified (via
video-link) at trial.

[141]  In Dr.
Solomons’ opinion, Ms. Ahadi did not develop psychiatric complications or
conditions as a result of the accident.  He noted that, from a psychiatric
point of view, there was good evidence that in the immediate aftermath of the
accident, Ms. Ahadi was upset and disturbed, and that she had “intrusive
recollections of the accident in the form of nightmares.”  However, Dr.
Solomons considered that there was no evidence that Ms. Ahadi experienced
“waking flashbacks” to the accident.  He noted that Ms. Ahadi’s doctor
documented that Ms. Ahadi’s emotional reactions to the accident “spontaneously
resolved” within three to four months of the accident, and Dr. Solomons
considered that they were not the focus of clinical attention thereafter.  Dr.
Solomons noted that Ms. Ahadi’s doctor wondered whether her initial symptoms
were a manifestation of PTSD or merely a normal reaction to the accident, but,
at the time, never resolved those questions.  Dr. Solomons noted that the next
reference to emotional symptoms in Ms. Ahadi’s doctor’s clinical notes was made
in January 2009, at which time Ms. Ahadi was reported to have nihilistic
ideation and depression.  Dr. Solomons noted that Ms. Ahadi was not treated
with anti-depressant medication until earlier in 2009.  He says that:

[Ms. Ahadi’s] initial symptoms were acute stress symptoms in
relation to the accident.  These were not pathological, did not require medical
intervention or treatment and resolved spontaneously.  They did give rise to
some functional impairment in that her sleep was disturbed, which affected her
concentration and performance at school for a short while.  All of this
resolved spontaneously as the nightmares settled.

[142]  Furthermore,
in Dr. Solomons’ opinion, the diagnostic criteria for PTSD were not met in Ms.
Ahadi’s case.  It was unclear to Dr. Solomons why Ms. Ahadi’s doctor diagnosed
her with PTSD in January 2009.  Dr. Solomons noted that it was not clear what
trauma the doctor referred to in the diagnosis, and that, if it was the
accident, then the doctor had not diagnosed Ms. Ahadi with the condition either
at the time of the accident or in the intervening three years.  In Dr.
Solomons’ view, it was also not clear what would have induced the doctor to
formulate the diagnosis so long after the accident.

[143]  I note
that, according to the records referred to, the PTSD diagnosis in January 2009
was made, not by Dr. Khunkhun, but by Dr. Edgar.

[144]  During his
cross-examination of Dr. Solomons, Mr. Marcoux (Ms. Ahadi’s counsel) launched
an all-out attack on Dr. Solomons and his opinions.  The attack continued in
closing submissions.  Mr. Marcoux argued in effect that Dr. Solomons was
seriously and dangerously biased, to the extent that he failed to recognize and
accept the completely obvious – that in September 2009, Ms. Ahadi was suffering
from major depression and was suicidal – and his opinions should therefore be
rejected in favour of the opinions expressed by Ms. Ahadi’s experts.  However,
I think the nature of this attack was, for me, not very helpful.  Dr. Solomons
did not opine that, when he saw her, Ms. Ahadi was not suffering from
depression (although he did not accept a diagnosis of PTSD).  Rather, the
opinion that he expressed was that her psychiatric symptoms were not the result
of the accident.  In my view, looking at Dr. Solomons’ evidence as a whole, he
accepted that, by 2009, Ms. Ahadi was suffering from depression (at least), but,
in his opinion, her condition was the result of events unrelated to the
accident.

[145]  At the
request of Ms. Ahadi’s lawyers, Ms. Ahadi was also assessed in June 2012 by Dr.
Daniel Gouws.  Dr. Gouws is a medical doctor who regularly performs
fitness-for-work evaluations.  Dr. Gouws prepared a report and also testified
at trial.  However, with respect to Ms. Ahadi’s physical, psychiatric and
psychological status, and how that is likely to affect her in the future, I
prefer and place greater weight on the evidence of those who are specialists in
these areas, as compared with Dr. Gouws.  The results of Dr. Gouws’ “Functional
Physical Examination” of Ms. Ahadi are essentially the same as Dr. Stewart’s.  Given
that he carried out his assessment more than six years after the accident, I am
not inclined to give much weight to Dr. Gouws’ “Opinions on Causation,” where
he states that, “As a result of the injuries, [Ms. Ahadi] became severely
impaired and was unable to cope,” or his statement that, “The fact is that Ms.
Ahadi’s life has been devastated as a result of the accident.”  I do not find
such observations helpful in resolving the issues I have to decide.  On
cross-examination, Dr. Gouws agreed that there are many occupations Ms. Ahadi
could pursue.

(v)      Ms. Ahadi’s age and stage of life as
contributing factors

[146]  A number
of the experts commented on Ms. Ahadi’s age and stage of life when she was injured
as contributing factors to her current problems.  For example, Dr. Schimpf
offered these as potential explanations for the degree to which Ms. Ahadi has
been affected.  Dr. Robinson noted that the accident occurred at a transitional
time in Ms. Ahadi’s life, when she was nearing the end of high school.  Dr. Lu
observed that the accident occurred at an important point in Ms. Ahadi’s life,
as late teens and early adulthood is an important transitional phase of life.  He
said that disruption in normal adult development can have long-term impacts on Ms.
Ahadi’s mental health and self-perception.  Dr. Lu said further that because of
the early onset of Ms. Ahadi’s psychiatric problems, her life-long psychiatric
risk is elevated and, in his opinion, she will have a long-term relative
decrease in occupational competitiveness.

[147]  Moreover,
in the article “Early detection of depression in young and elderly people,”
published in the November 2002 edition of the BC Medical Journal, and
authored by Dr. Solomons and Dr. E. Jane Garland, the authors state in respect
of detecting depression in young people (notes omitted):

. . . [W]hen a young person becomes depressed, life quickly
becomes complicated by negative events that perpetuate the illness.  These
include school failure . . . .

[148]  This is
consistent with how Ms. Ahadi described her life after the accident.

(d)      Would Ms. Ahadi have experienced her
problems but for the accident?

[149]  For a
plaintiff to recover damages in tort, the plaintiff must show on a balance of probabilities
that “but for” the defendant’s negligent act, the injury would not have
occurred.  Inherent in the phrase “but for” is the requirement that the
defendant’s negligence was necessary to bring about the injury – in other words
that the injury would not have occurred without the defendant’s negligence.
See Clements v. Clements, 2012 SCC 32, at paras. 8 and 13.
Causation need not be proved with scientific precision.  It is not necessary
for the plaintiff to establish that the defendant’s negligence was the sole
cause of the injury.  As long as a defendant is part of the cause of the
injury, the defendant is liable, even though his act alone was not enough to
create the injury.  There is no basis for a reduction of liability because of
the existence of other preconditions:  defendants remain liable for all
injuries caused or contributed to by their negligence.  See Athey v.
Leonati, [1996] 3 S.C.R. 458, at paras. 13-17.  The plaintiff is to be
placed in the same position he or she would have been if not for the
defendant’s negligence.

[150]  The main
contest here concerns Ms. Ahadi’s psychological and psychiatric conditions.
The defendants say that the evidence does not support a finding of either PTSD
or pain disorder.  With respect to major depression and associated problems,
the defendants essentially argue that Ms. Ahadi recovered spontaneously or
naturally in 2006 from any psychological or psychiatric problems that could be
attributed to the accident, and that her existing problems developed years
later, as a result of Ms. Ahadi’s failure to achieve her academic and life
goals.  Thus, the defendants say that Ms. Ahadi would have developed all of her
current psychological and psychiatric problems even if the accident had never
happened.

(i)       Comments on Ms. Ahadi’s credibility

[151]  The expert
opinions on which Ms. Ahadi relies to support her claims of psychological and
psychiatric problems caused by the accident are based in very large part on the
expert accepting Ms. Ahadi’s reports (to the author of the report and to
others, on whose records the author relies) of events and symptoms.  Ms. Ahadi’s
credibility and reliability are, therefore, important considerations.

[152]  Most of
the injuries Ms. Ahadi claims to have suffered are not susceptible to physical
testing, and the doctors must rely on the subjective symptoms Ms. Ahadi reports,
as well as on their general medical knowledge and experience, to arrive at a
diagnosis.  The weight that can be given to those opinions depends on the
court’s assessment of Ms. Ahadi’s credibility and on the consistency of her
evidence at trial with the information she provided to the doctors and opinion
authors:  see Edmondson v. Payer, 2011 BCSC 118, at para. 21;
aff’d 2012 BCCA 114.  The doctor’s job is to take the patient’s complaints at
face value and offer an opinion based on them.  It is for the court to
assess credibility:  see Edmondson, at para. 77.

[153]  What of
the absence of a record by a doctor of a particular symptom?  Dr. Stewart,
for example, was asked on cross-examination about the absence in Dr. Khunkhun’s
records of continuing complaints by Ms. Ahadi about headaches, and the same
issue was raised with Dr. Robinson.  However, as N. Smith J. observes in Edmonson
(at para. 36),  the absence of a record is not, in itself, evidence of
anything, and it cannot be the sole basis for any inference about the existence
or non-existence of that symptom.  The same applies to the complete absence of
a clinical record:  see Edmondson, at para. 37.  Dr. Stewart
provided a reasonable explanation of why patients with chronic conditions may
not come to a doctor for treatment.  Ms. Ahadi provided a reasonable
explanation for why she was not seeking treatment for her problems after about
September 2006, until, finally she broke down in early 2009.

[154]  The
defendants argue that Ms. Ahadi’s failure, prior to trial, to disclose all
relevant electronic documents demonstrates a general lack of honesty on her
part.  The problem relating to discovery of electronic documents was discovered
on the third day of trial, when Mr. Marcoux showed e-mail communications to a
witness (Ms. Betty Chow, Ms. Ahadi’s boss when she was working at Shoppers Drug
Mart) that had not previously been disclosed to the defendants.  Mr. Marcoux
acknowledged that he had received the e-mail communications from Ms. Ahadi
shortly before the trial began.  An order was then made concerning production
of electronic documents, and Ms. Ahadi was required to submit to further oral
examination for discovery.  This turn of events was very unfortunate, and made
an already stressful experience (the trial) even more so.  It was also
completely avoidable, if only appropriate inquiries had been made by Ms. Ahadi’s
solicitors prior to trial concerning the existence and location of relevant and
producible electronic documents.  Court had to be adjourned early on the third
day of trial, after the issues concerning Ms. Ahadi’s electronic documents had
been uncovered and during Ms. Ahadi’s examination-in-chief, because Ms. Ahadi
felt unable to continue in the circumstances.

[155]  The
defendants argue that, because of the circumstances surrounding production by Ms.
Ahadi of electronic documents and the conflicts in her evidence concerning the
location of electronic documents in her home, I should give no weight to either
Ms. Ahadi’s evidence at trial or her self-reports to the various experts.  The
defendants say that anything less would be unjust to them.  They also argue
that I should draw an adverse inference against Ms. Ahadi.

[156]  I do not
agree.

[157]  In my
opinion, it does not follow from what happened concerning discovery by Ms.
Ahadi of electronic documents that I should give no weight to her evidence
generally.  Ms. Ahadi’s solicitors need to accept at least some of the
responsibility for what occurred.  Prior to trial, they should have
investigated the existence of relevant electronic documents much more
thoroughly than they did.  Had they made a proper and thorough investigation, Ms.
Ahadi’s solicitors could have avoided placing their client in the uncomfortable
position in which she found herself on the third day of trial.  Defendants’
counsel also had the opportunity to pursue the matter of electronic documents
(such as Facebook postings and e-mail), when Ms. Ahadi was examined for
discovery some nine months before the trial, but they did not.  In my view, Ms.
Ahadi’s evidence should be assessed looking at all of the relevant factors.
The court can accept some, all or none of the evidence of a witness.

[158]  There are
reasons to be cautious about Ms. Ahadi’s evidence.  One of the reasons is that
she herself blames the accident for taking away her dream of a successful
career as pharmacist, and (as Dr. Gopinath, for example, noted) strongly
identifies it as the cause of all her problems.  As O’Halloran J.A. observed in
Faryna v. Corny, [1952] 2 D.L.R. 354 (B.C.C.A.), at p. 357, the
real test of the truth of the story of a witness 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.  I
consider that to be a very helpful guide in this case.

[159]  My
concerns about Ms. Ahadi’s evidence relate particularly to her reliability.  I
have come to the conclusion that I cannot rely on her ability to report
accurately the facts and circumstances of her life, and especially her life
after the accident.  Dr. Schimpf, for example, alluded to this problem – which
he described as cognitive distortion – in his evidence.

[160]  The point
is illustrated by looking at the evidence concerning Ms. Ahadi’s pre- and
post-accident academic performance.

[161]  In Grade
10, Ms. Ahadi had no grades above a C-plus in her academic subjects.  She was
not on the honour roll.  Based on these grades, particularly the Math grade,
and considering the UBC admission criteria, I think admission into the Faculty
of Science at UBC would be unlikely, and admission into the highly competitive
pharmacy program even more so.  Ms. Ahadi’s pre-accident academic abilities
were not at a level that would have allowed her to achieve her goals.

[162]  In her
evidence-in-chief, Ms. Ahadi said that after the accident her grades started to
go downhill.  In fact, her grade in Math (a subject she professed to be one of
her favourites) started to go downhill in the semester before the accident,
compared with her final mark in Grade 10.  Based on her transcripts, Ms. Ahadi
had struggled with Math since she started high school in September 2002.  Ms.
Arshad confirmed that Ms. Ahadi was not good in Math.  There was not a steady
downhill slide in everything after the accident, compared with before.  Some
things were worse; some were better; some were more or less the same.  Ms.
Ahadi’s grades in Grade 12 were not markedly different from her grades before
the accident.  However, from Ms. Ahadi’s perspective, everything was worse
after the accident.

[163]  Where it
suited her, Ms. Ahadi would re-write history.  In a résumé Ms. Ahadi prepared
after graduation from Pinetree, Ms. Ahadi stated that she had achieved honour
roll certificates “in the past four years.”  On cross-examination, Ms. Ahadi
admitted this was not true.  The various expert reports include information
from Ms. Ahadi about her academic performance.  However, the information Ms.
Ahadi provided to the experts about her academic performance pre-accident is a
mixture of half-truths and wishful thinking.

[164]  I do not
think that when Ms. Ahadi was providing information to the various experts that
she was deliberately not telling the truth.  Rather, I think she probably
honestly believes that before the accident she was firmly on the road to
academic success at the university level.

[165]  However,
in my opinion, the main point is this:  that in the months after the accident, Ms.
Ahadi perceived herself as different, less capable than before and as damaged.
Her time away from school at the beginning of January 2006 put her behind in
her school work, creating additional pressure and stress for her as she
attempted to recover from her injuries.  Things that she had been able to do
before were now hard or harder, and she was failing at some of them.  Although
she had always been a hard worker, and had confidence in her ability to achieve
through hard work, after the accident she was struggling.  In my view, as a
result of the accident, Ms. Ahadi’s self-image and self-confidence were
damaged.  Depression, and eventually major depression followed.

(ii)      Findings

[166]  In terms
of physical injuries resulting from the accident and caused by Mr. Valdez’s
negligence, I find that Ms. Ahadi suffered an undisplaced facture of the fibula
in her left leg, as well as soft tissue injuries to her cervical and thoracolumbar
spine.  Although, initially, the fracture was slow to heal, by mid-April 2006,
there was reasonable callous formation of the fracture site and by not later
than September 2006, the fracture was fully healed.

[167]  I find
that, as a result of the accident and Mr. Valdez’s negligence, Ms. Ahadi continued
to experience acute stress symptoms and developed depression in the months immediately
after the accident.  Ms. Ahadi’s evidence in this regard is consistent with and
supports the conclusions reached by the experts, including Dr. Solomons.  There
was no pre-accident history of depression or mood disorders, nor, on the
evidence, was there any family history of such problems.  There was some
suggestion in a clinical note that Mrs. Ahadi might have a mood disorder.
However, Mrs. Ahadi was never asked whether she has ever been diagnosed with an
anxiety disorder, and there was no admissible evidence she had ever been
diagnosed with such a condition.

[168]  I find
further that, over time and as a result of the accident, Ms. Ahadi developed major
depression, with associated headaches and other pain symptoms.  As of 2012, Ms.
Ahadi’s depression has been diagnosed as being in the moderate to severe range,
and it continues to affect her day-to-day functioning.

[169]  Ms. Ahadi’s
depression manifested itself not only in her subjective reports of her feelings,
but also in her physical appearance.  Dr. Khunkhun and Dr. Stewart, for
example, commented on this.

[170]  The
diagnosis of PTSD is more problematic.

[171]  At trial, Ms.
Ahadi testified about experiencing nightmares and what were described as
“flashbacks.”  Ms. Ahadi was asked questions using the term “flashbacks,” and
so, when she described having “flashbacks” of the accident that would play in
her head “like a slide-show,” it was difficult to know whether she was using
“flashback” simply as a synonym for “memory” – but without the overlay of the
DSM-IV – or whether she was giving evidence using the technical term used in
the diagnostic criteria for PTSD in order to buttress the diagnosis.  She
testified that, by the time she was at Douglas College, she would have a few
“flashbacks” here and there, and that they would come and go.

[172]  Her
description at trial of experiencing “flashbacks” where the accident played in
her head “like a slide-show,” struck me as overly rehearsed, rather than a
genuine retelling of something Ms. Ahadi recalled occurring in the past.  I
have concluded this is an area where I cannot place much weight on Ms. Ahadi’s
description of her experience after the accident, because she has demonstrated
she does not accurately report that experience.  In my view, Ms. Ahadi’s
evidence at trial does not support the conclusion that in the extended period
after the accident she has had either flashbacks or intrusive memories or
nightmares on either a daily or frequent basis, as Dr. Gopinath and Dr. Schimpf
state she reported to them.

[173]  I accept Ms.
Ahadi’s evidence that in the months immediately after the accident, she had
nightmares from time to time, and also (during waking hours) experienced
upsetting memories of the accident.  I also accept Ms. Ahadi’s evidence of
disturbed sleep, and that this is something she continues to experience
occasionally.

[174]  In her
evidence, Ms. Ahadi also talked about experiencing angry feelings, some of
which she has taken out on her family members.  Several of the experts (Dr.
Schimpf, for example) comment on this as an aspect of PTSD.  However, angry
feelings at one time or another are ubiquitous.  Anger can be irrational or
completely normal.  Angry feelings are not a hallmark of the psychiatric
condition of PTSD.

[175]  In my
opinion, Ms. Ahadi’s evidence at trial was not sufficiently consistent with the
information on which the diagnosis of PTSD was made by her experts.  Moreover,
her evidence at trial about post-accident nightmares, flashbacks and other
diagnostic criteria for PTSD is too fragile, given my concerns about her
reliability generally in reporting her experience, to support a finding Ms.
Ahadi developed PTSD as a result of the accident.  In my view, there is merit
in Dr. Solomons’ observations and reservations concerning the diagnosis of PTSD
caused as a result of the accident.  In the weeks and months immediately after
the accident, Ms. Ahadi’s family doctor was alive to the possibility that Ms.
Ahadi was suffering from PTSD.  However, no diagnosis was made at that time.
Dr. Solomons concluded that the problem resolved naturally, or “spontaneously.”
The diagnosis was made in January 2009 by a doctor, Dr. Edgar, who, however,
had not prepared an expert report for this trial.  So there was never going to
be an explanation presented at trial of how and why Dr. Edgar reached the
diagnosis three years after the accident.

[176]  Dr.
Gopinath expressed the opinion that Ms. Ahadi also meets the criteria for
“Generalized Anxiety Disorder.”  However, I heard nothing from Ms. Ahadi at
trial about panic attacks (for example), and I conclude the evidence does not
support a finding of “Generalized Anxiety Disorder.”

[177]  In any
event, I am not convinced that a proliferation of psychiatric diagnoses (“Major
depression,” “PTSD,” “Pain Disorder,” “Generalized Anxiety Disorder,” and so on)
is either helpful or necessary in this case, or that it makes a real difference
to Ms. Ahadi.  None of the experts who diagnosed major depression and PTSD said
that the recommended treatment for major depression is different in any
material way from the treatment of PTSD, or that a particular treatment is
recommended provided both conditions are present, but a different treatment is
recommended if only one of them is present.  Dr. Lu, for example, did not
recommend one course of treatment for PTSD, and a separate and distinct course
of treatment for major depression.  The recommended treatment for Ms. Ahadi’s psychiatric
and psychological problems generally is cognitive behavioural therapy together
with appropriate medication.

[178]  Almost
immediately after the accident, and I find as a result of it, Ms. Ahadi began
to perceive herself to be different and less capable than before.  She fell
behind in her school work and found it harder to concentrate, at a point when
she needed to call on her pre-accident abilities.  Some poor grades in the term
immediately following the accident confirmed her perception that, as a result
of the accident, she was in fact different and less capable.  This affected her
confidence, and problems (such as a poor Math grade) that were manageable before
the accident became harder and harder to deal with.  The very long days after
her family moved to Coquitlam in March 2006 cannot have helped Ms. Ahadi at a
time when she was struggling to get good, restful sleep.  She became more
isolated and withdrawn.  Her reaction was to try and ignore what was going on.
But since Ms. Ahadi needed early assessment and then treatment, this made her
situation worse not better.  Bad news hit her “like a bulldozer.”  She has yet
to fully recover and the prognosis is guarded.

[179]  There were
other things in Ms. Ahadi’s life after the accident that affected her mood and
outlook on life.  However, in my opinion, on a balance of probabilities, but
for the accident and Mr. Valdez’s negligence, particularly given Ms. Ahadi’s
age and stage of life, Ms. Ahadi would not have developed the psychological and
psychiatric problems that developed after the accident and that she now has.

[180]  I do not
see the Facebook postings, or that, post-accident Ms. Ahadi has interacted with
friends and relatives, or that she appears glamorously dressed and enjoying
herself at a wedding, to be inconsistent with my findings.  In her therapy with
Dr. Schimpf, she was being encouraged to engage in these and similar kinds of
activities.  I do not think Ms. Ahadi can or should be criticized for it, or
that it means that she either suffered no consequences from the accident or has
now fully recovered.

[181]  In their
respective reports, Dr. Gouws and Dr. Stewart also list a variety of other
symptoms that Ms. Ahadi described to them during their assessments of her.  For
example, Dr. Gouws describes Ms. Ahadi reporting such things as:  pins and
needles as well as pain in both her hands which occurs about nine days per
month for 5-10 minutes per day; and a stabbing pain on the left side of Ms.
Ahadi’s chest occurring between 10-15 minutes a day at a pain level of 1 or 2
out of 10.  Dr. Stewart described Ms. Ahadi reporting that she has intermittent
left arm pain that extends to her wrist and palm, and that sometimes
(especially in cold weather), Ms. Ahadi’s fingers get “stuck” and she is unable
to move them.  Again, I did not hear about such problems from Ms. Ahadi at
trial.  If they exist, they have not been proven to be related to the accident.

(e)      Non-pecuniary damages

[182]  The
purpose of non-pecuniary damages is to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities.  The amount of the
award does not depend alone on the seriousness of the injury but upon its
ability to ameliorate the condition of the injured person, considering his or
her particular situation:  see Stapley v. Hejslet, 2006 BCCA 34,
at para. 45.  The factors to be taken into account include:  the plaintiff’s
age; the nature of the injury; the severity and duration of pain; disability;
emotional suffering; impairment of family, marital and social relationships;
impairment of physical abilities; loss of lifestyle; and the plaintiff’s
stoicism (a factor that should not, generally speaking, penalize the
plaintiff).  See Stapley v. Hejslet, at para. 46.

[183]  On behalf
of Ms. Ahadi, Mr. Marcoux submits that the appropriate range for non-pecuniary
damages for Ms. Ahadi is between $110,000 and $200,000.  In support of his
position he cites: Shapiro v. Dailey, 2010 BCSC 770 (when the plaintiff
was 23, she suffered soft tissue injuries to her cervical, lumbar and sacral
spine that left her with severe headaches, chronic pain disorder, a mood
disorder including resolving post-traumatic stress disorder, anxiety disorder
and panic attacks, among other problems; trial judge found the prognosis was
extremely guarded; non-pecuniary damages assessed at $110,000; future care
costs reduced on appeal but otherwise defendant’s appeal dismissed:  see 2012
BCCA 128); Hutchings v. Dow, 2006 BCSC 629 (plaintiff was 19 when
injured and 24 as of trial; he sustained soft tissue injuries to his neck, back
and shoulder as well as a closed-head injury, and developed headaches and
depression; shoulder and neck pain found to have substantially resolved as of
trial; as a result of the accident, plaintiff’s ambition to be a fireman was
thwarted; non-pecuniary damages assessed at $135,000); Cikojevic v. Timm,
2010 BCSC 800 (plaintiff, 17 at the time of the accident, sustained a mild
brain injury in addition to soft tissue injuries; as of trial, she was
continuing to experience chronic back pain, depression and pain as a result of
her soft tissue injuries, and cognitive and emotional sequelae from her brain
injury;  non-pecuniary damages assessed at $160,000); and Sirna v.
Smolinski, 2007 BCSC 967 (plaintiff, age 25 at the time of trial,
previously outgoing and energetic, was seriously injured when she was hit by
the defendant’s car in a crosswalk; as a result, she sustained significant and
serious ongoing physical, psychological and emotional trauma that left her with
permanent functional deficits(including chronic pain and fatigue), cognitive
deficits associated with her brain injury and reactive depression; the trial
judge’s impression was that plaintiff often underreported her symptoms; the
trial judge found that there would be little positive change in the future
except to the extent that the plaintiff was able to successfully monitor her
activity and work levels, and (to the extent she is not too fatigued) she might
also expect some further improvement in adapting to her cognitive deficits;
non-pecuniary damages assessed at $200,000).

[184]  Mr.
Marcoux also referred to Alden v. Spooner, 2002 BCCA 592.  This
was an appeal by the defendants from a jury award which included $200,000 for
non-pecuniary damages.  The defendants’ appeal was dismissed.  However, given
the legal test applicable on the appeal, I find the case of little assistance.

[185]  On behalf
of the defendants, Mr. Grewal submits that the appropriate range of
non-pecuniary damages is between $40,000 and $60,000.  Mr. Grewal argues that
this is appropriate compensation in circumstances where Ms. Ahadi sustained a
relatively minor fracture to a non-weight bearing bone, together with some soft
tissue injuries and related stress symptoms in the first few months after the
accident.

[186]  The
defendants rely on Dr. Solomons’ report to argue that Ms. Ahadi’s pain and
emotional problems improved in the first few months after the accident.
However, the contents of the clinical records on which Dr. Solomons relies in
order to reach this conclusion were not put to Ms. Ahadi during her
cross-examination.  Not only did she not confirm statements contained in the
clinical records, she was not given the opportunity to confirm or deny them.

[187]  The
defendants’ argument, and the cases on which they rely, assume that Ms. Ahadi
substantially recovered from the effects of the accident within about nine
months.  However, I have found otherwise.

[188]  The
accident caused a major disruption to Ms. Ahadi’s life at a vulnerable time.  Before
the accident, she was happy, friendly, co-operative; she was engaged in her
school and social life.  She had drive and ambition for the future.  She worked
hard and had excellent work habits.  She was optimistic in her approach to
school, even though she often met disappointment in Math, for example.  There
was no family history of depression or mood disorders.

[189]  In the
months immediately after the accident, Ms. Ahadi’s efforts to recover from the
physical and, especially, the psychological injuries she suffered as a result
of the accident placed a significant extra burden on her and sent her on a path
eventually leading to major depression and problems associated with that
condition.  She felt different.  She became depressed, withdrawn and anxious
about her situation.  Whereas before the accident she could apply herself to
school work by calling on her excellent work habits, after the accident she
struggled with concentration and memory.  When she needed restful sleep, her
sleep was disturbed.  She suffered headaches and experienced pain.  She has
still not fully recovered, and is vulnerable to episodes of depression in the
future.  Although early treatment is important, Ms. Ahadi did not begin
receiving treatment for her emotional problems until 2009, more than three
years after the accident.  For a significant period of her late teens and early
twenties, Ms. Ahadi has not been able to fully enjoy and engage in either
school, leisure or work life, because she has been coping with the consequences
of the accident.

[190]  The
prognosis for improvement in Ms. Ahadi’s psychological and psychiatric functioning,
based on the opinion evidence, is guarded.  However, it is not hopeless.
Moreover, as of trial, Ms. Ahadi had terminated the counselling both with Dr.
Gopinath and with Dr. Schimpf, although, according to Ms. Ahadi, she found the
sessions helpful.  This suggests that Ms. Ahadi herself does not see her
situation as being as dark and gloomy as some of the experts.  There is help
available for her if she chooses to avail herself of it.  With the trial behind
her, she will no longer have to endure reciting yet again what happened on
December 31, 2005.

[191]  In my
view, apart from Shapiro, the cases cited by Mr. Marcoux involve
more serious injuries and more serious life consequences than I find Ms. Ahadi
has experienced.  In my view, an award of $110,000 in non-pecuniary damages
reflects appropriate compensation to Ms. Ahadi.

(f)       Income loss and loss of future earning
capacity

[192]  Mr.
Marcoux confirmed in closing argument that Ms. Ahadi is not advancing a claim
for past income loss.

[193]  I turn
then to Ms. Ahadi’s claim for compensation for loss of future earning capacity.

[194]  Mr.
Marcoux submits that Ms. Ahadi is entitled to a substantial award under this
heading, in the range of between $200,000 and $450,000.  On behalf of the
defendants, Mr. Grewal submits that nothing should be awarded under this
category, on the basis that any impairment in Ms. Ahadi’s future earnings from
employment is not the result of the accident.

[195]  In order
to be entitled to an award for loss of future earning capacity, a plaintiff
must prove a substantial possibility that lost capacity will result in
pecuniary loss.  A plaintiff may be able to prove that there is a substantial
possibility of a future income loss despite having returned to his or her
employment, however an inability to perform an occupation that is not a
realistic alternative occupation is not proof of a future loss.  If the
plaintiff discharges the burden of proving a substantial possibility that lost
capacity will result in pecuniary loss, then the plaintiff may prove
quantification of that loss either by an earnings approach or by a capital
asset approach.  An earnings approach will be more useful when the loss is more
easily measurable, while the capital asset approach will be more useful when
the loss is not easily measurable.  See Perren v. Lalari, 2010
BCCA 140, at paras. 25-32.

[196]  The award
for loss of future earning capacity is an assessment, not a mathematical
calculation, and it involves a comparison between the likely future of the
plaintiff if the accident had not happened and the plaintiff’s likely future
after the accident.  The degree of impairment to the plaintiff’s earning
capacity depends upon the type and severity of the plaintiff’s injuries and the
nature of the anticipated employment at issue.  In valuing the award, the judge
must consider the likely duration of the plaintiff’s prospective working life
and must account for negative and positive contingencies which are unique to
each case.  The final award must be fair and reasonable in all the
circumstances.  See Gregory v. Insurance Corporation of British Columbia,
2011 BCCA 144, at paras. 32-33.

[197]  The
quantification of the loss of future earning capacity is more at large when the
injured plaintiff is a young person who has not yet established a career:  see Romanchych
v. Vallianatos, 2010 BCCA 20, at para. 15.

[198]  Some of
the considerations to take into account in making the assessment include
whether:  (a) the plaintiff has been rendered less capable overall from earning
income from all types of employment; (b) the plaintiff is less marketable or
attractive as an employee to potential employers; (c) the plaintiff has lost
the ability to take advantage of all job opportunities which might otherwise
have been open to her, had she not been injured; and (d) the plaintiff is less
valuable to herself as a person capable of earning income in a competitive
labour market.  See Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353
(S.C.), at p. 356.

[199]  I will say
first that I do not see a career as a pharmacist as being a real and
substantial possibility for Ms. Ahadi but for the accident.  Even before the
accident, and despite working hard, she was an average student, with a
demonstrated weakness in Math.  Her prospects for being accepted into highly
competitive science and pharmacy degree programs at UBC were poor, in my view.
Her lost capacity does not translate into a loss of income based on what a
pharmacist might earn.

[200]  Nevertheless,
prior to the accident, Ms. Ahadi worked hard at school and was ambitious for her
future.  Ms. Ahadi demonstrated her willingness and capacity for work by taking
on a job at McDonald’s in the summer before Grade 11.  Despite her struggles
after the accident, she was hired to work part-time at the Bay in 2006 and she
remained employed there until 2011.

[201]  In the
Spring of 2009, when it was clear she could not continue at Douglas College and
during her “horrible year,” Ms. Ahadi embarked on a job search.  The defendants
say that this demonstrates that she was not so impaired by her emotional
problems as Ms. Ahadi claims.  However, I do not agree.  I see it as an
indication of her ambition and desire, despite how she was feeling at
the time, to be a productive member of the workforce.  Her job applications
indicate a reasonably wide range:  retail, financial services, health services.
In my view, Ms. Ahadi’s selection of potential employers was practical and realistic.

[202]  In
September 2011, Ms. Ahadi began working full-time for the Fraser Health
Authority at the Pharmacy Drug Distribution Centre as a pharmacy assistant.  As
of trial, she had secured a permanent position there.  However, her continued
employment in that position is dependent on Ms. Ahadi obtaining her pharmacy
technician licence by her employer’s deadline of 2013.  Despite doing very well
in her courses at MTI, Ms. Ahadi is afraid that her experience in completing
the licensing steps will be a repeat of her experience at Douglas College,
where she met failure, and she has been very reluctant to move forward as a
result.  Whether there is some prospect of a deferral from her employer, or for
accommodations to be made for Ms. Ahadi in completing the steps, is unknown.
If Ms. Ahadi is unable successfully to complete the steps required to obtain a
licence, she will not be able in the future to work as a pharmacy technician.

[203]  In her
second report, Dr. Stewart commented on some of the difficulties that, in her
opinion, Ms. Ahadi was likely to face in the work-force.  Dr. Stewart
acknowledged that (contrary to her prediction in her first report) Ms. Ahadi
was employed full-time.  However, in Dr. Stewart’s opinion, Ms. Ahadi’s ability
to work full-time is somewhat precarious because of her ongoing emotional and
psychiatric difficulties.  In Dr. Stewart’s opinion, even if Ms. Ahadi is
successful in obtaining her pharmacy technician licence, because of her
fatigue, it would be advisable for her to work on no more than a part-time
basis.  In Dr. Lu’s opinion (stated in his second report), Ms. Ahadi’s
life-long psychiatric risk is elevated and she will have a long-term relative
decrease in her occupational competitiveness.

[204]  I find,
therefore, that Ms. Ahadi has demonstrated a reasonable and substantial
possibility that her lost capacity will result in a pecuniary loss, and she is
entitled to compensation.

[205]  I turn
then to the assessment.  Based on Ms. Ahadi’s age at the time of the accident
and her circumstances, an assessment based on a loss of a capital asset is the
appropriate approach.

[206]  Ms. Ahadi’s
current annual earnings, and the current annual salary for a pharmacy
technician, are in the range of about $46,000.00.  In submissions, Mr. Marcoux
has provided calculations, based on various scenarios, ranging from $200,000
(assuming employment to age 65) to $450,000 (assuming employment to age 70).

[207]  Ms. Ahadi
is now in her mid-twenties.  I do not see any basis to conclude that Ms. Ahadi
will continue to work until age 70.  If she works until age 65, that will be a
period of about 40 years.  Ms. Ahadi has, both before and after the accident,
demonstrated a very strong connection to the work force, even when she was
struggling with severe emotional problems.  I expect (despite the prospect of Ms.
Ahadi’s marriage) that Ms. Ahadi will continue with this connection in the
future.  There are still many suitable occupations open to her, and I think
that the prospects she will eventually be able to qualify as a licensed
pharmacy technician (if she decides this is the career she wishes to pursue)
are reasonable.  However, there are risks.

[208]  One of the
scenarios Mr. Marcoux provided was based on the present value of an annual loss
of between $10,000 and $15,000.  However, I think this is too high, and a more
reasonable estimate of an annual loss is between $5,000 and $6,000.  Using the present
value multipliers provided by Mr. Curtis Peever, an economist, the present
value of an annual loss of between $5,000 and $6,000, to age 65, is between
$130,625 and $156,750.  On the other hand, using three times current earnings
($46,000) produces $138,000.  I have found these dollar amounts useful as a
guide.

[209]  I have
concluded, considering Ms. Ahadi’s circumstances, positive and negative
contingencies, and the factors set out in the cases (including in particular
that the final award must be fair and reasonable in the circumstances), that an
appropriate award to reflect Ms. Ahadi’s loss of future earning capacity is
$140,000.00.

(g)      Costs of future care

[210]  The
purpose of an award for costs of future care is to restore, as best as possible
with a monetary award, the injured person to the position she would have been
in had the accident not occurred.  The award is based on what is reasonably
necessary (based on the medical evidence) to promote the mental and physical
health of the plaintiff.  See Gignac v. Insurance Corporation of British
Columbia, 2012 BCCA 351, at paras. 29-30.  It is not necessary, in
order for a plaintiff to successfully advance a future cost of care claim, that
a physician testify to the medical necessity of each and every item of care
that is claimed.  But there must be some evidentiary link drawn between the
physician’s assessment of pain, disability, and recommended treatment and the
care recommended by a qualified health care professional.  See Gregory,
at para. 39.

[211]  Moreover, the
cost of a service must be likely to be incurred by the plaintiff.  If the
plaintiff has not used a service in the past, it may not properly be the
subject of an award, or it may be subject to a specific contingency reduction.
See, for example, Brandy Naks v. Hesse, 2012 BCSC 1327, at para.
79 and Gignac, at paras. 53-54.

[212]  Dr.
Schimpf, Dr. Lu and Dr. Gopinath all recommend ongoing psychotherapy for Ms.
Ahadi.  They were joined in this recommendation by Dr. Robinson and Dr. Stewart
(although she deferred to the opinion of Ms. Ahadi’s treating psychologist, Dr.
Schimpf).  Dr. Schimpf recommends bi-weekly structured cognitive behavioural
therapy “until such time as she stabilizes.”  In Dr. Lu’s opinion, Ms. Ahadi
requires long-term psychological treatment and support, while Dr. Gopinath
recommended “long-term psychotherapy, at least for a year.”  Their
recommendations concerning medication were similar:  Ms. Ahadi needed it
“indefinitely,” or over the “long term.”

[213]  Dr.
Stewart and Dr. McGraw both recommended that Ms. Ahadi have access to a
personal trainer.  The purpose would be to improve her physical condition
generally and also to assist in improving her mood.  Dr. Stewart considered
that, because of Ms. Ahadi’s low mood, it would be difficult for Ms. Ahadi, on her
own, to sustain an exercise program over the long term.  Dr. McGraw recommended
that Ms. Ahadi have long-term involvement of a “rehabilitation worker” to help Ms.
Ahadi maintain her exercise program.  He envisioned a program of two to three
times a week for about three months, and he estimated the cost at between $60
to $75 per hour.

[214]  Dr.
Stewart and Dr. Gouws also recommended that Ms. Ahadi have access to an
occupational therapist for help in planning and executing completion of her
studies to become licensed as a pharmacy technician.  However, there was no
evidence concerning the cost of such assistance.

[215]  Mr.
Marcoux submits that, in the light of the evidence, Ms. Ahadi should be awarded
the following amounts for the cost of future care (all figures are net present
value, using the multiplier in the expert report of Mr. Peever:

[216]  On behalf
of the defendants, Mr. Grewal submits that nothing should be awarded.  He
points out that, on the evidence, Ms. Ahadi has used medications infrequently,
even when prescribed for her.  Moreover, despite the recommendations from Dr.
Schimpf and Dr. Gopinath concerning regular and ongoing psychotherapy, Ms.
Ahadi terminated her relationships with both prior to trial, and there was no
indication that she intended to pursue further treatment with either of them.

[217]  The
experts’ recommendations are clear and there is also a clear link between the
physician’s (or psychologist’s) assessment of disability and the recommended
treatment.  However, are these expenses that Ms. Ahadi is likely to incur in
the future?  In my view, the answer is, at best, maybe.

[218]  I say this
for several reasons.

[219]  Despite
recommendations as early as April 2006 that Ms. Ahadi increase her physical
activity level, there is no indication that Ms. Ahadi has ever even visited a
gym, or inquired about facilities at a recreation centre, or inquired about working
with a kinesiologist or physical trainer.  Ms. Ahadi did not mention any
financial barriers to following up on the recommendations concerning improving
her physical fitness.  She simply did not follow the recommendations.  I do not
think the explanation for her failure to do anything is that she was depressed,
because, for example, even during her “horrible year” in 2009, she made
considerable efforts to investigate and follow up on potential job
opportunities.

[220]  The
recommendations concerning regular psychotherapy have been strong and
consistent, since at least 2009.  There was no suggestion from any of the
experts in this area that occasional, irregular treatment, with lengthy gaps
between therapy sessions, was sufficient to treat Ms. Ahadi’s psychological and
psychiatric problems, and that is certainly not what is being recommended as
part of a future care regime.  However, that appears to me to be the pattern Ms.
Ahadi adopted with respect to her therapy, and in that light, she did not follow
what had been recommended for her.  She also appeared ambivalent concerning
anti-depressant medication.  Of course, Ms. Ahadi has the right to choose
whether or not she will attend therapy or take medication.  However, if she is
unlikely to do it in the future, there is no reason the defendants should have
to pay for it now.

[221]  In terms
of the duration of future care, Mr. Marcoux submits that “long term” and
“indefinitely” should be understood to mean something in the range of ten
years.  The evidence is unhelpfully vague in this area, and the prognosis for Ms.
Ahadi is uncertain.  However, she has never undergone intense, frequent psychotherapy,
so the degree of improvement such therapy might bring is unknown.  Dr. Gopinath
includes “at least for a year” in his recommendation of long-term therapy and
medication for Ms. Ahadi.  It is a large leap from “at least for a year,” to
ten years, and I am not persuaded that the recommendation of therapy and
medication “indefinitely” means for the next ten years.  Moreover, based on Ms.
Ahadi’s engagement with therapy in the past, I think it highly unlikely that
she would attend therapy bi-weekly for ten years (assuming that is how the
recommendations should be understood).

[222]  Given the
recommendations that have been made, I have concluded it is reasonable to award
something for costs of a personal trainer for Ms. Ahadi.  Being in better
physical condition should improve her mood.  Dr. McGraw’s “program” would cost
in the range of $2,700.  I think a reasonable contingency deduction would be
50%.  I therefore award $1,350.

[223]  With
respect to therapy and medication, I am not satisfied on the evidence that
“long-term” and “indefinitely” mean ten years, and so Mr. Marcoux’s dollar
amounts are inflated to begin with.  Moreover, I think there must also be a contingency
deduction to reflect the likelihood that these expenses will not be incurred in
the future, based on Ms. Ahadi’s approach to therapy and medication in the
past.  However, unlike active physical rehabilitation, Ms. Ahadi has in fact
attended psychotherapy and taken antidepressant medication in the past.  I have
concluded that a reasonable estimate of the duration of the future care is five
years, taking into account Dr. Gopinath’s opinion that it should be “at least
for a year,” and the opinions that Ms. Ahadi requires long-term therapy.  I
think a reasonable contingency deduction would be 30%.  I therefore award $20,125.00
for future therapy and medication costs.  This is based on the cost of therapy
and medication for five years ($22,750 plus $6,000) totalling $28,750.00, less 30%.

(h)      Special damages

[224]  Ms. Ahadi
claims special damages in the sum of $3,874.88, consisting of:  $2,450 paid to
Dr. Schimpf; medication expenses totalling $1,239.88; and three physiotherapy
sessions in January, February and March 2009, totalling $185.00.  There is no
issue that the expenses were incurred.

[225]  The
evidence concerning physiotherapy was rather thin.  Ms. Ahadi testified that
she went to these sessions on account of her left leg, which is the leg
fractured in the accident.

[226]  Her
attendance at therapy with Dr. Schimpf related to her psychological problems
resulting from the accident, and the medications were also prescribed to
address the psychological and psychiatric consequences of the accident.

[227]  I find that
Ms. Ahadi is entitled to special damages in the amount claimed.

(i)       Mitigation

[228]  The
defendants argue that Ms. Ahadi has failed to mitigate her damages and that any
award should therefore be reduced by between 30% and 40%.  The defendants say
that Ms. Ahadi regularly failed to follow up on recommendations made by medical
and other treating professionals, beginning in 2006.  They say that she took no
active steps toward obtaining appropriate psychological treatment until almost
four and a half years after the accident, when she began seeing Dr. Schimpf,
and she did not begin regular psychiatric treatment until November 2011, when
she began seeing Dr. Gopinath.  The defendants say that medication was
recommended and prescribed for Ms. Ahadi, but prescriptions remained unfilled.
The defendants also note that Ms. Ahadi did not engage in any physiotherapy
until some nine months after the accident.

[229]  In a
personal injury case in which the plaintiff has not pursued a course of medical
treatment recommended to her by doctors, the defendant must prove two things:  (1)
that the plaintiff acted unreasonably in not following the recommended
treatment, and (2) the extent, if any, to which the plaintiff’s damages would
have been reduced had she acted reasonably.  The mitigation test is a
subjective/objective test, that is, whether the reasonable patient, having all
the information at hand that the plaintiff possessed, ought reasonably to have
undergone the recommended treatment.  The second aspect of the test is the
extent, if any, to which the plaintiff’s damages would have been reduced by
that treatment.  See Gregory, at paras. 53 and 56.

[230]  Dr.
Gopinath and Dr. Schimpf (among others) note the benefits to the patient of
early intervention and treatment.  However, Ms. Ahadi’s psychiatric condition
was not formally diagnosed until 2009, more than three years after the
accident.  By the time she was seen by Dr. Hirsh in June 2009, Ms. Ahadi’s
physical problems and pain were primarily a product of her ongoing
psychological and psychiatric problems.  Dr. Hirsch’s and Dr. Lu’s recommendations
that Ms. Ahadi receive treatment for these problems were made in June and July
2009.  There is no evidence of a recommendation being made before that.  By
that time, any chance of “early intervention” was long gone.  Ms. Ahadi’s
evidence is to the effect that while at Pinetree and Douglas College, she was
struggling on her own, keeping her problems to herself and trying to ignore
them, and not even telling her family doctor what was wrong.  Her explanation
was not challenged on cross-examination and she was not asked to further
explain her reasons for not pursuing psychological counselling and psychiatric
treatment more vigorously, once recommendations had been made.  Moreover, Dr.
Schimpf observed that it is not uncommon for depressed people to drop out of
treatment.

[231]  Even if
the defendants had shown that Ms. Ahadi acted unreasonably in not following
recommended treatment (and in my view, they have not done so), the defendants
have failed to show the extent (if any) to which Ms. Ahadi’s damages would have
been reduced had she acted reasonably.  Accordingly, I find that the defendants
have not met the burden on them to prove that Ms. Ahadi failed to mitigate her
damages.

Disposition and summary

[232]  In
summary, I find that Mr. Valdez’s negligence caused the accident and that, as a
result, Ms. Ahadi sustained injuries, the effects of which Ms. Ahadi continued
to experience as of trial and will likely continue to experience in the future.
The defendants are therefore liable to Ms. Ahadi for damages.  I award damages
to Ms. Ahadi as follows:

(a)      non-pecuniary
damages in the sum of $110,000.00;

(b)      damages
for loss of earning capacity in the sum of $140,000.00;

(c)      damages
for the cost of future care in the sum of $21,475.00; and

(d)      special
damages in the sum of $3,874.88.

[233]  There will
be pre-judgment interest in accordance with the Court Order Interest Act,
R.S.B.C. 1996, c. 79.

[234]
Subject to any submissions that the parties may wish to make, Ms. Ahadi
is entitled to costs on Scale B.  The parties are at liberty to make
arrangements to make submissions with respect to costs within 60 days of these
reasons. Submissions may be made in writing or orally, as the parties may wish.

“Adair
J.”