IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Nemoto v. Phagura, |
| 2014 BCSC 262 |
Date: 20140218
Docket: M135024
Registry:
New Westminster
Between:
Ryotaro
Nemoto, also known as Ryoutarou Nemoto, an Infant by his Mother and Litigation
Guardian, Sanae Nemoto and the said Sanae Nemoto
Plaintiffs
And
Paramjit S.
Phagura, Wells Fargo Equipment Finance Company/Societ
De Financement
DEquipment Wells Fargo and BBD Trucking &
Excavating Ltd.
Defendants
Before:
The Honourable Madame Justice Harris
Reasons for Judgment
Counsel for Plaintiffs: | J. F. R. Chouinard A. E. Kuntze |
Counsel for Defendants:
| A. Spence |
Place and Date of Trial/Hearing: | New Westminster, B.C. August 12 – 16 and |
Place and Date of Judgment: | New Westminster, B.C. February 18, 2014 |
Introduction
[1]
On August 27, 2008, Ryotaro Nemoto (Ryotaro) and his sister, Rui
Nemoto (Rui), were passengers in a Toyota Corolla driven by their mother,
Sanae Nemoto (Ms. Nemoto). Ms. Nemoto was stopped at a red light at the
intersection of Brunette Avenue and Braid Street in New Westminster when her
motor vehicle was rear ended by a Freightliner tractor trailer, which pushed Ms.
Nemotos vehicle into the intersection (the MVA).
[2]
Ryotaro, Rui and Ms. Nemoto had just moved to Canada from Japan a few
months before the collision occurred. Their father has stayed in Japan for his
work. Ryotaro was ten years of age at the time of the collision. At the time he
gave evidence at trial he was 15 years old.
[3]
The collision occurred at approximately 8:30 pm on a rainy evening. The
family had just been shopping at a local Ikea store.
[4]
Ryotaro testified as to his recollection of the collision. He recalls
feeling a really big impact and there being a really loud sound. He said
that the impact pushed him forward, knocking his head forward. The back window
of the vehicle broke sending glass into the cars interior. He was seated in
the rear of the vehicle and wearing a three point restraint.
[5]
He recalls being frightened and crying. He was able to get out of the
car on his own. He said that he was surprised to see the size of the truck that
had crushed part of his mothers car. After the collision, Ryotaro and Rui stood
near the car, while Ms. Nemoto was arguing with the truck driver. Both Ryotaro
and Rui were crying.
[6]
The police attended at the scene but there was no ambulance called. They
did not go to the hospital. The mother took the children home by taxi and tried
to get them to relax, with a warm bath and hot drinks.
[7]
It is admitted that the Freightliner which struck the back of the Toyota
was a large vehicle, weighing about 32,000 kg. The Freightliner cab did not
have a trailer attached at the time of the collision. There was extensive
damage to the rear of the mothers vehicle.
[8]
Despite the MVA, Ryotaro has adapted to his new life in Canada. He
initially attended elementary schools in the Burnaby School District where he
received English language training. He is now in high school. He is a good
student and is engaged in various sports activities such as baseball and
soccer, as well as Air Cadets. He participates in activities which recognize
his cultural heritage, such as abacus lessons.
Issue
[9]
The plaintiff claims damages and expenses for injuries resulting from
the MVA, including non-pecuniary damages; damages for loss of capacity; costs
of care future care; and special damages.
[10]
The defendants have admitted liability for the MVA. However, the extent
of the plaintiffs injuries and the amount of damages to which the plaintiff is
entitled are in dispute.
The Plaintiffs Injuries
[11]
The plaintiff claims physical and psychological injuries resulting from
the motor vehicle accident.
Physical Injury
[12]
Ryotaro testified that he experienced tension and pain in his back,
shoulder and neck, as well as headaches, following the MVA.
[13]
He was seen by a physician at a walk in clinic on the day following the
accident. The records indicate pain in his neck and back, with a clinical note
of tenderness in the paracervical and trapezius muscle, and decreased range of
motion in the neck with full although painful neck flexion.
[14]
In the following week, Ryotaro complained to his family doctor, Dr. Lee,
of headaches, low back pains and mild nausea.
[15]
In subsequent visits to Dr. Lee, Ryotaro continued to complain of back
and neck pain and was diagnosed with soft tissue injury to his neck and back
(cervical and lumbar strain). A course of physiotherapy was recommended.
[16]
Ryotaro received physiotherapy in 2008 and 2009 and chiropractic
treatment for his back and neck in 2009 and 2010. He also used massage and hot
packs to help with pain. He testified he did the stretching exercises which
were recommended to him.
[17]
Ryotaro was not absent from school because of the accident, other than
to attend medical appointments. He was advised to continue participation in
sports activities. After the accident, he played soccer and baseball. He
testified to having some pain when he headed the ball in soccer. He also
testified that he was on the shooting team in Air Cadets and that it hurt his
neck, shoulder and back when he had to shoot from the prone position for long
periods.
[18]
He also stated that since the accident, his back gets sore after
studying for long periods or doing repetitive abacus drills.
[19]
Although Ryotaro stated in direct examination that the tightness and
pain in his back and neck continue to be present, on cross examination he was
referred to his evidence from his 2011 examination for discovery where he had
said the tightness in his back had gone away completely; his statement to Dr. Arora
in 2011 that he no longer had any physical symptoms; and his statements to Dr. Harada
that he no longer had back pain in May of 2010 and no longer had tightness in
his neck or shoulders in 2012. Ryotaro testified that he meant to say that he
didnt have any pain at that time the questions were asked but didnt mean to
suggest that he did not still have pain in his back and neck.
Psychological Injury
[20]
In respect of psychological injury, Ryotaro described feeling nervous in
traffic after the accident, particularly when he was near trucks or when he
heard the sounds of ABS brakes. He testified that it sometimes reminds him of
the accident and makes him worry that it will happen again.
[21]
Ms. Nemoto testified that after the MVA, he was reluctant to get into
the car and would look around nervously when they were driving.
[22]
He also testified that since the collision he avoids going to Ikea with
his sister and mother because it makes him nervous even today. He also takes
a longer route to school to avoid traffic.
[23]
He stated that he continues to feel nervous and panicked in traffic
sometimes and was referred to a recent occasion when he got nervous and tense
in a tunnel on the way to Dr. Weiss office.
[24]
There was evidence that Ryotaro experienced nightmares after the
accident. His mother gave evidence that he would wake up sweaty and screaming
or crying, and she would try and console him. Ryotaro said he doesnt remember
the nightmares but recalls waking up with his pillow soaked with sweat. Ryotaro
said that this hasnt happened recently. However, Ms. Nemoto noted there
was a recent incident in the summer of 2012 when he was calling out in the
middle of the night as a result of a nightmare.
[25]
Ryotaro testified that although he would like to learn to drive, as he
will soon be turning 16 years of age, he didnt feel ready to get a drivers
licence as he is too anxious in traffic.
[26]
Dr. Lee recommended that Ryotaro see a psychologist in 2008 and 2009,
although he didnt see a psychologist until 2010. Ms. Nemoto wanted a
Japanese speaking psychologist, but one was difficult to find.
[27]
Ryotaro ultimately saw Dr. Harada. Dr. Harada is a psychologist who
speaks Japanese. Ryotaro testified that she taught him how to relax and that
this really helped him with his anxiety.
Medical Evidence
Dr. Lee
[28]
Dr. Lee is a family physician who gave evidence at trial for the
defendant. His report is dated October 19, 2012. Dr. Lee was Ryotaros
physician from September 2008 to April 2011.
[29]
Dr. Lee first saw Ryotaro shortly after the MVA, on September 3, 2008. Ryotaro
was complaining of headaches, low back pains and mild nausea. At that time Dr. Lee
diagnosed Ryotaro with cervical sprain and a possible concussion.
[30]
Ryotaro complained of persistent intermittent neck and shoulder pain in
2008 and 2009, which he reported was worse when sitting for extended periods
doing homework. In September of 2009, Dr. Lee diagnosed Ryotaro with chronic
neck and upper back sprain.
[31]
Dr. Lee also heard complaints, mainly through Ms. Nemoto, of
Ryotaro experiencing nightmares, fatigue and anxiety in 2008 and 2009. Dr. Lee
diagnosed Ryotaro with post-traumatic anxiety.
[32]
Physiotherapy and chiropractic treatment were recommended for Ryotaro,
as well as psychological counselling.
[33]
In 2010, it was reported to Dr. Lee that the counselling Ryotaro
received from Dr. Harada had alleviated his nightmares and anxiety.
[34]
Dr. Lee noted that, by 2011, Ryotaro still had intermittent neck pain
but had full range of motion and was able to participate in sports without
difficulty.
[35]
In Dr. Lees opinion, the prognosis for Ryotaros pain symptoms was
excellent and he would not be limited in his participation in sports or future
employment. He deferred to a psychologist or psychiatrist with regard to a
prognosis for Ryotaros psychological symptoms.
Dr. Arora
[36]
Dr. Arora is a family physician who gave evidence at the request of
plaintiffs counsel. His report is dated June 21, 2012.
[37]
Ryotaro first saw Dr. Arora in February of 2011.
[38]
In his report, Dr. Arora noted that physiotherapy and chiropractic
therapy had helped Ryotaro and that by October of 2011 he was no longer
experiencing any physical symptoms. Based upon the physical examination he
conducted in June of 2012, he confirmed that Ryotaro was not bothered by the
symptoms caused by the MVA and concluded that his prognosis was excellent: his
injuries will not limit him in terms of activities of daily living, recreation
or future employment.
[39]
With respect to Ryotaros psychological health, in Dr. Aroras
opinion, Ryotaro did suffer psychological symptoms from the MVA which had a
significant impact on his personal and academic life. Although Dr. Arora stated
in his report that he deferred to Dr. Harada on this matter, his evidence
at trial was that it was his understanding that, by 2011, Ryotaro was no longer
experiencing nightmares.
Dr. Weiss
[40]
Dr. Weiss is a child and adolescent psychiatrist who gave evidence on
behalf of the plaintiff. Her report is dated December 1, 2012. Dr. Weiss
reviewed the medical records of Dr. Lee, Dr. Arora, and Dr. Harada
and interviewed the plaintiff in the presence of Ms. Nemoto. There was no
interpreter present.
[41]
Dr. Weiss noted in her report the plaintiffs difficulty with language
and his tendency to agree with the interviewer. She also noted it took
considerable time to simplify the language and to make the questions specific
enough that he could provide reliable information. She said this was further exacerbated
by his wish to please and his difficulty expressing his emotions.
[42]
Dr. Weiss emphasized the effect of Japanese culture in interviewing Ryotaro,
which she testified explained his inclination to minimize the effects of the
MVA.
[43]
Dr. Weiss diagnosed the plaintiff with moderately severe post-traumatic
stress disorder (PTSD), chronic pain and nightmares, which were caused, in
her opinion, by the MVA. In her report she said that although he has maintained
good academic, social and family functioning, this was because he was so highly
motivated. In her opinion, the MVA has significantly diminished his quality of
life and left him with residual anxiety and pain. She said that his pain, while
improved, has not remitted and continues to affect his well-being profoundly.
[44]
With respect to his prognosis, Dr. Weiss evidence was that she
disagreed with the excellent prognosis given by Dr. Arora on the basis
that it is not possible to infer such a prognosis where the plaintiff has
experienced chronic pain at the level of 7/10 from the time of the MVA to the
present.
[45]
In her report Dr. Weiss concluded: The prognosis of the PTSD and
moderate generalized anxiety that have been ongoing for four years puts him at
risk for lifetime struggles with anxiety and stress.
[46]
Under cross examination, Dr. Weiss agreed that it was a deviation
from standard practice to interview Ryotaro with his mother present. She said
she felt this was necessary as Ryotaro was not relating his feelings. She
testified that Ms. Nemoto and Ryotaro would sometimes speak in Japanese
before responding and that they told her they were arguing about the effects of
the MVA. She said she sometimes heard first from Ms. Nemoto, who would
then try and get Ryotaro to respond to Dr. Weiss questions.
[47]
Dr. Weiss admitted, during cross examination, that certain facts and
assumptions in her report were not accurate, in that two family physicians had not
previously diagnosed Ryotaro with PTSD or night terrors. However, she said
the physicians listed symptoms which could have formed the basis of such a
diagnosis. Dr. Weiss was also unable to support the statement in her
report that Dr. Arora had noted in June 2012 had said that the plaintiffs
pain would still flare up.
[48]
She clarified that she had not done a systematic pain scale on Ryotaro
and that it was Ryotaro who reported his pain, although 80% improved, was at
the level of 7/10. Dr. Weiss testified she observed a child who would not
give into the pain he was feeling.
Dr. Vallance
[49]
Dr. Vallance is a forensic psychiatrist who was called by the defence.
He used an interpreter during the interview he conducted with Ryotaro and his
mother. He also reviewed related medical records and excerpts from the
examination for discovery of Ryotaro. His report is dated February 3, 2013.
[50]
Dr. Vallance focussed on the psychological problems experienced by
Ryotaro following the collision. In his report, he stated that the accident
itself would have been a frightening experience for him and particularly coming
at a vulnerable time so recent to his move to Canada. He referred to Ryotaro
having developed symptoms of anxiety including bad dreams and anxiety in
traffic situations, although he noted that Ryotaro had other sources of anxiety
in his life at the time due to his separation from his father and entering a
new school system without English proficiency.
[51]
Dr. Vallance did not agree that the symptoms Ryotaro developed were as
serious or are continuing, as Dr. Weiss suggested. While Dr. Valance
agreed in cross examination that Ryotaro had, in the period immediately
following the collision, certain symptoms which are consistent with PTSD, he
did not agree with Dr. Weiss diagnosis that Ryotaro currently suffers
from the disorder, nor did he agree that Ryotaro is at risk for lifetime
struggles with anxiety and stress. Dr. Vallance stated that based on his
own interview with Ryotaro and other information, any pain or anxiety Ryotaro experienced
from the collision was no longer interfering with his performance.
[52]
Dr. Vallances opinion was that Ryotaros symptoms of nightmares and
anxiety in traffic had largely remitted by 2010. He referred to the consensus
that Ryotaro is functioning at a very high level academically and socially: he
is doing well at school, has friends, and is involved in various activities. He
did not believe that Ryotaros future plans to be a paleontologist have been
compromised by anxiety caused by the accident.
[53]
Dr. Vallance noted that Ryotaro reported to him that he now generally
feels comfortable in his mothers car; that Ryotaro could hardly remember
feeling anxious about the sound of brakes; and that Ryotaro did not react to
two loud sirens which occurred during his interview with Dr. Vallance.
[54]
Dr. Vallance referred to Dr. Haradas note of May 29, 2010, that Ryotaro
reported he did not feel anxiety when a truck was passing by their car, and
her note of June 29, 2010, that Ryotaro had no headaches or dizziness and was
no longer experiencing fear and anxiety during car driving when a truck passed,
good sleep, no night terror, no fear and anxiety during driving.
[55]
Dr. Vallance testified that he not believe there were symptoms to
support the conclusion that Ryotaro suffered a concussion in the collision. He
said that Ryotaro did not report to him that he had hit his head in the
collision and that Ryotaro wasnt treated as if he had suffered a concussion.
Dr. Vallance testified that it was his opinion that Ryotaros headaches
were cervicogenic in nature.
[56]
With regard to the two recent incidents of Ryotaro becoming frightened
and anxious in the tunnel on the way to Dr. Weiss office and his calling
out after a nightmare, Dr. Vallance attributed Ryotaros reaction as more
likely due to his having to relive the circumstances of the collision for the
purposes of his sisters litigation and his own litigation, as well as anxiety
transmitted from his mother. He believed this type of occurrence will disappear
once the litigation is over.
Dr. Harada
[57]
Dr. Harada is a registered clinical counsellor, who has a PhD in
psychology. Prior to coming to Canada she worked in Japan as a clinical
psychologist providing psychotherapy for children and adolescents. Dr. Harada
was called by the plaintiffs counsel. Her report is dated May 4, 2012.
[58]
Dr. Harada was also treating Rui for injuries due to the MVA.
[59]
Dr. Harada first saw Ryotaro on April 24, 2010 as a result of a referral
from Dr. Lee. Dr. Harada was asked to provide a psychological
assessment and psychotherapy in relation to Dr. Lees diagnosis of anxiety
and nightmares resulting from the MVA. She said her main role was not to
diagnose Ryotaro but to treat Ryotaros symptoms.
[60]
After Dr. Harada provided three counselling sessions, she reported
to Dr. Lee on June 2, 2010 that the plaintiffs pain and fear during car
travel had subsided.
[61]
After two subsequent sessions, Dr. Harada reported that Ryotaro was
free from headaches and dizziness and no longer experienced fear and anxiety
during car travel, although he complained of pain on the left side of his neck
and shoulder.
[62]
All of the counselling sessions were conducted in Japanese.
[63]
In response to a request from counsel for the plaintiff for a medical
legal report, she saw Ryotaro again for a reassessment on February 1, 2012. She
reported that he did not have dizziness or tightness of the neck and shoulder,
although he suffered from a minor headache.
[64]
In her report, she diagnosed Ryotaro with PTSD and Sleep Terror Disorder,
based upon the DSM-IV-TR criteria, as well as headaches and dizziness. In her
evidence at trial she clarified that she did not form this diagnosis at the
time she was treating him in 2010, although she had a suspicion of PTSD.
[65]
In Dr. Haradas report she stated Ryotaros symptoms of PTSD, sleep
terrors, headaches and dizziness had all diminished; that his prognosis for a
complete recovery was very good; and that his injuries will not limit his
future recreational activities, activities of daily life and/or opportunities
with employment. However, in her evidence at trial she expressed a caution
that the symptoms of PTSD can resurface in later years, as it is a chronic
condition.
[66]
Under cross examination, she agreed that her report to Dr. Lee of
June 2, 2010 does not refer to any suspicion of PTSD. She also agreed that her
2012 diagnosis of PTSD centered around Ryotaros fear of being a passenger in a
motor vehicle, even though Ms. Nemoto had told her at the time of the
reassessment that Ryotaro was no longer fearful when being driven.
[67]
Dr. Harada agreed that Ryotaro would not meet the DSM-IV-TR criteria for
PTSD based upon his condition in 2012, although she reiterated that PTSD is a
chronic condition. Similarly, Dr. Harada agreed that she diagnosed Sleep
Terror Disorder in 2012, even though there had been no complaints of nightmares
since 2010.
Credibility and Reliability of Evidence
[68]
The factors to be considered when assessing credibility were summarized by
Madame Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398 at para.
186, affd 2012 BCCA 296, as follows:
Credibility involves an
assessment of the trustworthiness of a witness testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to lie,
and the demeanour of a witness generally (Wallace v. Davis, [1926] 31
O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.);
R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately,
the validity of the evidence depends on whether the evidence is consistent with
the probabilities affecting the case as a whole and shown to be in existence at
the time (Faryna at para. 356).
[69]
Counsel for the defendants submits that the plaintiffs evidence is not
reliable with respect to his injuries, the duration of his injuries, and their
impact on his activities, referring to Ryotaros inability to recall important
aspects of his condition.
[70]
I agree that that there is a need to exercise caution and to examine all
of the evidence carefully in a case such as this, which is founded to a
considerable extent on subjective evidence. There must be evidence of a
convincing nature to overcome the improbability that the pain continued, in the
absence of objective symptoms, well beyond the normal recovery period: Price
v. Kostryba, [1982] 70 B.C.L.R. 397 (S.C.); Maslen v. Rubenstein
(1993), 83 B.C.L.R. (2d) 131 (C.A.).
[71]
With regard to Ryotaros evidence, while I accept that, at times, he had
difficulty recalling how his condition progressed since the MVA and what he
said to others about his injuries, I do not conclude from this that his
evidence is unreliable. In that regard, it is important to consider his age and
maturity and to assess his evidence in an age appropriate manner which takes
into account, for example, his conception of time and capacity to recall events
which have occurred some time ago: R. v. C.C.F., [1997] 3 S.C.R.
1183.
[72]
I consider that Ryotaro was generally a reliable witness, even though
his evidence was sometimes vague in his description of his injuries. Where it
is necessary to discount or reject his evidence on a particular matter, I will
address this in the course of my reasons.
[73]
Counsel for the defendants also submits that the evidence of Dr. Weiss should
not be relied upon because she did not use an interpreter in the interview; she
allowed Ryotaro and Ms. Nemoto to discuss their responses to her questions
before answering; and she relied too much upon the evidence of Ms. Nemoto
in formulating her opinion regarding Ryotaro. Counsel further contends that
certain of the assumptions in her report were not established at trial by any
of the witnesses.
[74]
Counsel for the plaintiff submits that Dr. Weiss, who is a child
psychiatrist, should be accepted over Dr. Vallance, who is not. He
contends that Dr. Weiss conducted the interview as she did because Ryotaro
was unable to describe what happened to him. Counsel contends that Dr. Weiss
report makes it clear that she relied on what Ryotaro was reporting.
[75]
With respect to the evidence of Dr. Weiss and Dr. Vallance, to
the extent that there are differences of opinion which bear on my decision, I
will address these in my reasons.
Causation
[76]
The plaintiff must establish on a balance of probabilities that the
defendants negligence caused or materially contributed to an injury. The
defendants negligence need not be the sole cause of the injury so long as it
is part of the cause beyond the range of de minimus. As Chief Justice
McLachlin stated in Blackwater v. Plint, 2005 SCC 58 at para. 78:
Even though there may be several
tortious and non-tortious causes of injury, so long as the defendants act is a
cause of the plaintiffs damage, the defendant is fully liable for that damage.
The rules of damages then consider what the original position of the plaintiff
would have been. The governing principle is that the defendant need not put the
plaintiff in a better position than his original position and should not compensate
the plaintiff for any damages he would have suffered anyway: Athey v.
Leonati, [1996] 3 S.C.R. 458.
[77]
The primary test for causation asks: but-for the defendants negligence,
would the plaintiff have suffered the injury? The but-for test recognizes that
compensation for negligent conduct should only be made where a substantial
connection between the injury and the defendants conduct is present: Resurfice
Corp. v. Hanke, 2007 SCC 7 at paras. 21-23.
[78]
As the plaintiffs claim of psychological injury in this case, I refer
to the principles to be applied in assessing claims of psychological injury,
which were summarized by Mr. Justice Lambert in Yoshikawa v. Yu (1996),
21 B.C.L.R. (3d) 318 at paras. 12-13 (C.A.), as follows:
It is important to understand what is established and what is
not established by the decision in Maslen v. Rubenstein [(1993), 83
B.C.L.R. (2d) 131 (C.A.]. I propose to set out a number of principles extracted
from the reasons of Mr. Justice Taylor, for the Court, in the Maslen
case. The first point is a preliminary point and appears in Maslen at
p. 133 under the heading (a) The Background:
1. The plaintiff must establish
that the pain, discomfort or weakness is real in the sense that the victim
genuinely experiences it.
The remaining ten points are drawn from the part of the
reasons headed (b) The Basic Principles at pp. 134 to 137:
2. The plaintiff must establish
that his or her psychological problems have their cause in the defendants
unlawful act.
3. The plaintiffs psychological
problems do not have their cause in the defendants unlawful act if they arise
from a desire on the plaintiffs part for such things as care, sympathy,
relaxation or compensation.
4. The plaintiffs
psychological problems do not have their cause in the defendants unlawful
wrongful act if the plaintiff could be expected to overcome them by his or her
own inherent resources, or will-power.
5. If psychological problems
exist, or continue, because the plaintiff for some reason wishes to have them,
or does not wish them to end, their existence or continuation must be said to
have a subjective, or internal, cause. (NOTE: I consider that this proposition
must deal with the conscious mind, otherwise it seems to me to beg the
question; see my first observation, later in this Part of these reasons.)
6. If a court could not say
whether the plaintiff really desired to be free of the psychological problems,
the plaintiff would not have established his or her case on the critical issue
of causation.
7. Any question of mitigation,
or failure to mitigate, arises only after causation has been established.
8. It is not sufficient to ask
whether a psychological condition such as chronic, benign pain syndrome is
compensable. Such a psychological condition may be compensable or it may not.
The identification of the symptoms as chronic benign pain syndrome does not
resolve the questions of legal liability or the question of assessment of
damages.
9. It is unlikely that medical
practitioners can answer, as matters of expert opinion, the ultimate questions
on which these cases often turn.
10. Mr. Justice Spencer,
at trial in the Maslen case, put the overall test quite correctly in
these words:
[C]hronic benign pain syndrome will
attract damages … where the plaintiffs condition is caused by the defendant
and is not something within her control to prevent. If it is true of a chronic
benign pain syndrome, then it will be true also of other psychologically-caused
suffering where the psychological mechanism, whatever it is, is beyond the
plaintiffs power to control and was set in motion by the defendants fault.
11. There must be evidence
of a convincing nature to overcome the improbability that pain will continue,
in the absence of objective symptoms, well beyond the recovery period, but the
plaintiffs own evidence, if consistent with the surrounding circumstances, may
nevertheless suffice for the purpose.
I am sure Mr. Justice Taylor
did not consider that the basic principles which he set out exhausted all the
possibilities for the application of principle to the difficult problems in
these cases. The general principles which apply in relation to causation in law
will apply to psychological injury as they apply to physical injury.
[79]
The plaintiffs counsel claims that the plaintiff suffered both physical
and psychological injury from the MVA. The defendants counsel does not dispute
that there were both physical and psychological injuries to the plaintiff which
resulted from the MVA, but disagrees as to the nature and extent of the injury.
[80]
With respect to physical injuries, counsel for the defendants says that they
were minor in nature and were substantially, if not completely resolved by
2010. With respect to the psychological injury, counsel says that while the
plaintiff experienced some bad dreams and anxiety from the MVA, these symptoms
did not last long and did not rise to the level of a psychiatric disorder of
PTSD or Sleep Terror Disorder.
[81]
Counsel for the plaintiff claims that the MVA has caused injuries to the
plaintiffs neck, shoulders and back, which resulted in considerable pain and
discomfort which persists to this day. Counsel also claims that the MVA caused
psychological harm to the plaintiff, including Sleep Terror Disorder and Post
Traumatic Stress Disorder, which also persists to this day and has had a substantial
impact on the course of the plaintiffs life.
Physical Injury
[82]
With respect to the physical injuries, I accept the medical evidence
from Dr. Lee, who treated the plaintiff after the MVA, that the MVA caused
a cervical sprain and soft tissue injury to the plaintiffs back, shoulders and
neck, which resulted in headaches, nausea and pain in those areas. From the
plaintiffs own account and the medical report of Dr. Lee, I find that the
pain associated with the physical injuries was intense in the period
immediately following the MVA until the end of 2008.
[83]
I find that during 2009 and 2010 his pain was limited to his neck and
upper back/shoulder area, and was intermittent in nature. As he was able to
continue with his sports and other activities and did not miss any school
(except to attend medical appointments), I am satisfied that the pain gradually
diminished in intensity as well as frequency. I find his condition
significantly improved over this period. It is likely that the plaintiffs
participation in physiotherapy, exercises and physical activities assisted in
his recovery.
[84]
I also accept the medical evidence of Dr. Arora that by October of
2011, the plaintiff was not experiencing any physical symptoms. That said, I do
not dispute that after this time the plaintiff has experienced, on occasion, some
discomfort in his neck while sitting for a sustained period, such as when
shooting an air rifle, or when looking in a particular direction while heading a
ball in soccer. But the plaintiffs own account considered together with the
medical evidence leads me to find that this occasional discomfort is relatively
minor and manageable.
[85]
I do not accept the contention that these ongoing physical symptoms
limit the plaintiffs ability to study or concentrate in any significant way. It
is clear that the plaintiff is an intelligent and motivated student, and I do
not find any physical impairment sufficient to stand in the way of his success.
Psychological Injury
[86]
With respect to the psychological effects of the MVA, there is a
difference of opinion between the two psychiatrists who testified on the
seriousness of the injury and its impact on the plaintiffs future.
[87]
In Dr. Weiss opinion, the plaintiff has moderately severe PTSD,
nightmares and chronic pain which puts him at risk for lifetime struggles with
anxiety and stress. In Dr. Vallances opinion, while the plaintiff had pain
and anxiety as a result of the MVA, that has not been so for a long time.
[88]
I accept the evidence of the plaintiff and Ms. Nemoto that he
experienced nightmares and anxiety following the accident, which is also supported
by the medical evidence. I also accept the medical evidence that the plaintiff
had post-traumatic anxiety for a period following the MVA, during which time he
had symptoms which are consistent with PTSD. However, I do not accept that the
plaintiffs psychological condition continues to be as severe or chronic as Dr. Weiss
suggested.
[89]
I prefer the evidence of Dr. Vallance regarding the plaintiffs
condition. Unlike Dr. Weiss, Dr. Vallance had the benefit of an
interpreter when he interviewed the plaintiff. Although he is not a child
psychiatrist, he has considerable experience with adolescents. More
importantly, his evidence of the plaintiffs level of functioning is more
consistent with the evidence of the other professionals who describe his
prognosis as excellent or very good. In that regard, although Dr. Weiss
described the plaintiff as continuing to experience considerable anxiety and chronic
pain, neither the plaintiffs evidence nor the evidence of the other professional
witnesses support that level of anxiety or pain.
[90]
That said, it is not disputed that the plaintiff had nightmares
following the MVA. I find that the nightmares were caused by the MVA and continued
for approximately two years. This is consistent with the reports of Ms. Nemoto
to Dr. Harada in May and June of 2010; the plaintiffs evidence at trial
was that the really bad nightmares did not last really long; and the
plaintiffs reports to Dr. Vallance that he now has normal dreams.
[91]
While I accept Ms. Nemotos evidence that the plaintiff had a
nightmare more recently, I am not satisfied that the evidence establishes that nightmares
continue to cause distress to the plaintiff or that they are indicative of a
psychiatric disorder. In that regard, I accept Dr. Vallances evidence
that there were other stressors which may have caused anxiety, including the
plaintiffs relocation to Canada, language difficulties and separation from his
father, as well as the stress of this litigation.
[92]
It is also not disputed that the plaintiff had considerable anxiety in
traffic following the MVA. I find that this anxiety resulted from the MVA and was
initially so severe that the plaintiff did not want to get into his mothers
car. However, the evidence establishes that his anxiety lessened over time. I
find his anxiety in traffic was largely resolved by 2011. This is consistent
with what he reported to Dr. Harada in 2010 and 2012.
[93]
While I accept Ryotaros evidence that he still gets anxious from the
sounds of trucks or ABS brakes from time to time, I am not persuaded that these
moments of anxiety are significantly affecting his functioning. He does not
avoid being in cars and reported to Dr. Vallance that he feels comfortable
in his mothers car.
[94]
With regard to Ryotaros evidence at trial that he does not feel ready
to get his drivers licence, he was not yet 16 years old when he gave that
evidence. I am not satisfied that the plaintiff has established his anxiety would
preclude him from participating in driver training courses to obtain a drivers
licence when he requires it. In that regard, I note that the description of the
plaintiffs reaction to traffic, which was relied upon Dr. Weiss in her
report, was not supported by the evidence at trial.
[95]
Having considered all of the evidence, I do not accept Dr. Weiss
opinion that the MVA has put the plaintiff at risk for lifetime struggles with
anxiety and stress. Without diminishing the psychological injury experienced by
the plaintiff for a period of approximately two years following the MVA, I find
that the plaintiff is now functioning well academically, socially and in his
family, with only occasional discomfort and anxiety.
Damages
Non-Pecuniary Damages
[96]
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and amenities. The compensation awarded
should be fair to all parties. Fairness is measured against awards made in
comparable cases, although they serve only as a guide to appropriate
compensation. Each case must be determined on a consideration of its own unique
facts: Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 145; Trites v.
Penner, 2010 BCSC 882 at para. 189.
[97]
In Stapley v. Hejslet, 2006 BCCA 34, leave to appeal refd [2006]
S.C.C.A. No. 100, the Court of Appeal outlined a non-exhaustive list of factors
for consideration when assessing non-pecuniary damages (at para. 46):
The inexhaustive list of common factors cited in Boyd
[v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages
includes:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering; and
(f) loss or impairment of life.
I would add the following factors, although they may arguably
be subsumed in the above list:
(g) impairment of family, marital
and social relationships;
(h) impairment of physical and
mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton, 2005 BCCA
54).
[98]
Citing the Supreme Court of Canada in Lindal v. Lindal, [1981] 2
S.C.R. 629 at 637, the Court of Appeal in Stapley emphasized at para. 45
that the amount of an award for non-pecuniary damage
should not depend alone upon
the seriousness of the injury but upon its ability to ameliorate the condition
of the victim considering his or her particular situation
An appreciation of
the individuals loss is the key and the need for solace will not necessarily
correlate with the seriousness of the injury. [Emphasis in original removed.]
[99]
Further, in Zacharias v. Leys, 2005 BCCA 560, the Court of Appeal
clarified the distinction between the principles that apply to causation
compared to the measure of damages: while a defendant must take the plaintiff
as he finds him, damages should be adjusted where there is a measurable risk
that a pre-existing condition would have detrimentally affected the plaintiff
in the future, regardless of the defendants negligence (at paras. 13-22). In
that regard, the court in Zacharias referred to the judgment of Madame
Justice Newbury in York v. Johnston (1997), 37 B.C.L.R. (3d) 235 at
para. 6 (C.A.):
Of course, the judgement as to
the measure of damages is a much more subtle one than that as to causation, not
only because it involves a consideration of mere contingencies as well as
probabilities, but because of the range of results available in the discounting
of the award, as opposed to the all or nothing choice that must be made with
respect to causation.
[100] Counsel
for the plaintiff seeks compensation for the plaintiffs pain and suffering and
submits that the MVA caused or contributed to the plaintiffs injury to his
neck, shoulders and back, with Night Terrors and PTSD which persist today.
[101] Counsel
for the plaintiff relies on the following cases to support an award of damages
in the amount of $85,000: Stapley; Wagner v. Narang, 2003 BCSC
1750; Bonham v. Weir Estate, 2009 BCSC 1080; and Yeung v. Dowbiggin,
2012 BCSC 206.
[102] Counsel
for the defendants submits that an appropriate range for non-pecuniary damages
is $10,000 to $25,000, relying on: Johnston v. Day, 2002 BCSC 480; Dolha
v. Heft, 2011 BCSC 738; Henderson (Guardian ad litem of) v. Peachey,
2003 BCSC 1104; Glew v. Klimm, 2004 BCSC 972; Naks (Guardian ad litem
of) v. Hesse, 2012 BCSC 1328; Williamson v. Nakashimada, 2004 BCSC 1348;
Bray v. Gaete, 2004 BCSC 335; Naks (Guardian ad litem of) v. Hess,
2012 BCSC 1327; and Nemoto (Guardian ad litem of) v. Phagura, 2012 BCSC
1809.
[103] In
considering the authorities referred to me, I find the most relevant cases are
the following:
·
In Nemoto, this court considered the claim of the instant plaintiffs
sister, Rui, for physical and psychological injuries resulting from the same
collision. Mr. Justice Smith found that Rui suffered significant pain and
limitations from the date of the accident until the end of 2008, with
intermittent pain for another year, and had achieved full recovery within two
years of the accident. He also found that Rui experienced severe anxiety while
riding in cars for approximately two years and that anxiety still affects her
efforts to learn to drive. He assessed non-pecuniary damages at $25,000.
·
In Wagner, this court considered the claim of a 48 year
old woman who was involved in a collision that caused her car to roll several
times. She suffered soft tissue injuries, with bruising, headaches, neck and
back pain. Her pain became chronic and she was assessed with mild to moderate
PTSD which resolved within two years. Although there is a reference in that
case to the plaintiff being nervous about driving and unable to drive, it is
not clear that this was the result of the accident. In any event, Madame
Justice Wedge awarded her non-pecuniary damages of $70,000.
·
In Johnston, the infant plaintiff was diagnosed with mild
soft tissue injury to the right and left trapezius and superficial injuries to
his face. These injuries resolved within a year but the plaintiff continued to
have sleeping problems, pain, and nightmares. The infant was diagnosed with
post-traumatic stress with recurrent nightmares, fear of driving and a change
in personality around driving. Madame Justice Quijano awarded $8,000.
·
In Naks, the plaintiff was eight years of age at the time
of the accident and 16 years at the time of trial. The plaintiff was diagnosed
with soft tissue injuries to the neck and upper and lower back resulting from
the accident. Madame Justice Maisonville awarded $22,000 in non-pecuniary
damages for the back pain and for exacerbation of the plaintiffs anxiety.
[104] I accept
that the consequences of the MVA were significant for the plaintiff. He
suffered intense and then intermittent pain in his neck, shoulders and back for
approximately two years and still has occasional pain in his neck.
[105] More
significantly, the MVA caused the plaintiff to have psychological problems at a
time which was already stressful for him, having just left the life he was
familiar with in Japan. The MVA prevented him from fully enjoying his new life
in Canada for a significant period of time.
[106] In
considering the relevant cases, I recognize that there are some similarities to
the case involving the plaintiffs sister, Rui. However, having considered all
of the evidence and, in particular the expert evidence and the factors in Stapley,
I am satisfied that the plaintiff was more seriously affected by the MVA than
was his sister. The plaintiffs post-traumatic anxiety was sufficiently serious
that his symptoms met the criteria for PTSD in 2010. In the plaintiffs case
the symptoms included the trauma from the collision, intense distress, recurrent
nightmares, hyper-vigilance, sleep disturbance and anxiety.
[107] Accordingly,
in all of the circumstances of this case, I conclude that a fair and reasonable
award for non-pecuniary damages is $40,000.
Loss of Earning Capacity
[108] The
purpose of damages for loss of earning capacity is to put the plaintiff,
insofar as is possible, in the position he would have been but for the
defendants negligence. The legal framework governing an award for loss of
earning capacity was summarized by Madame Justice Dardi in Midgley v. Nguyen,
2013 BCSC 693 at paras. 236-240:
The recent jurisprudence of the Court of Appeal has affirmed
that the plaintiff must demonstrate both an impairment to his or her earning
capacity and that there is a real and substantial possibility that the
diminishment in earning capacity will result in a pecuniary loss. If the
plaintiff discharges that requirement, he or she may prove the quantification of
that loss of earning capacity either on an earnings approach or a "capital
asset" approach: Perren v. Lalari, 2010 BCCA 140 at para. 32.
Regardless of the approach, the court must endeavour to quantify the financial
harm accruing to the plaintiff over the course of his or her working career: Pett
v. Pett, 2009 BCCA 232 at para. 19; X. v. Y. at para. 183.
As enumerated by the court in Falati v. Smith, 2010
BCSC 465 at para. 41, aff’d 2011 BCCA 45, the principles which inform the
assessment of loss of earning capacity include the following:
(i) The standard of proof in
relation to hypothetical or future events is simple probability, not the
balance of probabilities: Reilly v. Lynn, 2003 BCCA 49 at para. 101.
Hypothetical events are to be given weight according to their relative
likelihood: Athey at para. 27.
(ii) The court must make allowances
for the possibility that the assumptions upon which an award is based may prove
to be wrong: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.),
aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.). Evidence which supports a contingency
must show a "realistic as opposed to a speculative possibility": Graham
v. Rourke (1990), 75 O.R. (2d) 622 at 636 (C.A.).
(iii) The court must assess damages
for loss of earning capacity, rather than calculating those damages with
mathematical precision: Mulholland (Guardian ad litem of) v. Riley Estate
(1995), 12 B.C.L.R. (3d) 248 at para. 43. The assessment is based on the
evidence, taking into account all positive and negative contingencies. The
overall fairness and reasonableness of the award must be considered: Rosvold
v. Dunlop, 2001 BCCA 1 at para. 11.
Although a claim for "past loss of income" is often
characterized as a separate head of damages, it is properly characterized as a
component of loss of earning capacity: Falati at para. 39. It is
compensation for the impairment to the plaintiff’s past earning capacity that
was occasioned by his or her injuries: Rowe v. Bobell Express Ltd., 2005
BCCA 141 at para. 30; Bradley v. Bath, 2010 BCCA 10 at paras. 31-32; X.
v. Y. at para. 185.
While the burden of proof relating to actual past events is a
balance of probabilities, a past hypothetical event will be considered as long
as it was a real and substantial possibility and not mere speculation: Athey
at para. 27.
This court in Falati at para. 40 summarized the
pertinent legal principles governing the assessment of post-accident, pre-trial
loss of earning capacity and concluded that:
[40] … the determination of a
plaintiff’s prospective post-accident, pre-trial losses can involve considering
many of the same contingencies as govern the assessment of a loss of future
earning capacity. … As stated by Rowles J.A. in Smith v. Knudsen, 2004
BCCA 613, at para. 29,
"What would have happened in the past but for the
injury is no more ‘knowable’ than what will happen in the future and therefore
it is appropriate to assess the likelihood of hypothetical and future events
rather than applying the balance of probabilities test that is applied with
respect to past actual events."
[109] In this
case counsel for the plaintiff claims that the plaintiff has suffered a loss of
capacity, both in the confidence required to obtain a drivers licence, as well
as from the sequelae of possible future episodes of anxiety and PTSD.
[110] As noted
above, I am not satisfied that the plaintiff has established that he continues
to suffer from a physical or psychological condition which would preclude him
from obtaining his drivers licence or which would interfere with his future
educational studies. The symptoms from the MVA have largely resolved. The
evidence supports the conclusion that the plaintiff is doing well at school and
in his social and family life.
[111] I conclude
that the plaintiffs future earning capacity has not been diminished as a
result of the MVA. I therefore decline to award damages for loss of earning
capacity.
Costs of Future Care
[112] The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore him to his pre-accident condition in so far
as that is possible. When full restoration cannot be achieved, the court must
strive to assure full compensation through the provision of adequate future
care. The award is to be based on what is reasonably necessary on the medical evidence
to preserve and promote the plaintiffs mental and physical health: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at para. 172 (S.C.), affd [1987] 49
B.C.L.R. (2d) 99 (C.A.); Spehar (Guardian ad litem of) v. Beazley, 2002
BCSC 1104 at para. 55, affd 2004 BCCA 290; Gignac v. Rozylo, 2012 BCCA
351 at paras. 29-30.
[113] In this
case counsel for the plaintiff claims that he should be compensated for the
cost of 20 sessions for ongoing treatment with Dr. Harada, which is
calculated at $3,000.
[114] Counsel
for the defendant submits that the opinions of the experts do not support any
requirement for ongoing treatment.
[115] I note Dr. Haradas
evidence was that at the time she was treating the plaintiff, she was of the
opinion that he required additional therapy sessions than he received. Ms. Nemotos
evidence was that the cost of the therapy was a concern for her.
[116] Although I
have found that the plaintiffs anxiety has largely resolved, I consider that
the plaintiff would benefit from a few additional therapy sessions with Dr.
Harada to address his residual anxiety. I award the plaintiff $750 for this
purpose.
Special Damages
[117] The
parties have agreed to the plaintiffs entitlement to special damages in the
amount of $2,162.50. I award this amount to the plaintiff.
Conclusion
[118] In
summary, the total damages assessed amount to $42,912.50:
Non Pecuniary Damages: $40,000
Future Care Costs: $750
Special Damages: $2,162.50
[119] The
parties may make submissions as to costs, if they cannot agree.
Harris J.