IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Andrews v. Mainster, |
| 2014 BCSC 541 |
Date: 20140331
Docket: M111313
Registry:
Vancouver
Between:
Brenda Andrews
Plaintiff
And
Gail Mainster and
Harold Chaim Gutovich
Defendants
Before:
The Honourable Mr. Justice Pearlman
Reasons for Judgment
Counsel for the Plaintiff: | I. Kordic & D. Mah |
Counsel for the Defendants: | J.W. Joudrey & J. Grewal |
Place and Date of Trial: | Vancouver, B.C. March 11-15 & 18-22, 2013 |
Place and Date of Judgment: | Vancouver, B.C. March 31, 2014 |
INTRODUCTION
[1]
This is an assessment of damages for physical and psychological injuries
sustained by the plaintiff, Brenda Andrews, in a motor vehicle accident which
occurred on October 10, 2009 at the intersection of West 16th Avenue
and Fir Street in Vancouver, British Columbia. The plaintiff was driving west
on West 16th toward Fir Street when a vehicle driven by the
defendant Gail Mainster and owned by the defendant Harold Chaim Gutovich struck
her vehicle while making a left turn from Fir Street. Liability has already
been determined. By Reasons for Judgment indexed as Andrews v. Mainster,
2012 BCSC 823, the Honourable Mr. Justice Masuhara found the defendant
Gail Mainster to be entirely at fault.
[2]
The plaintiff claims that she suffered a fractured sternum and soft
tissue injuries to her chest, neck, right arm, shoulders, low back and right
hip as a result of the defendants’ negligence. She also claims that the motor
vehicle accident caused her psychological injuries which have disabled her from
employment in any capacity since October 10, 2009. Ms. Andrews claims
non-pecuniary damages, special damages totalling $78,833.57, damages for past
wage loss, loss of future earning capacity and costs of future care.
[3]
Counsel have requested that submissions on any income tax gross-up and
management fees be deferred until after the court delivers Reasons for Judgment
on the assessment of damages.
ISSUES
[4]
The issues raised in this action are:
(a) What
injuries did the plaintiff suffer as a result of the October 10, 2010 motor
vehicle accident?
(b) Did the
accident cause or contribute to the plaintiff’s ongoing pain and psychiatric
disorders?
(c) What
amounts, if any, are payable to the plaintiff for non-pecuniary damages, past
income loss, loss of future earning capacity, cost of future care and special
damages?
(d) Has the
plaintiff failed to mitigate her damages, and if so, to what extent?
[5]
In order to address these issues, it will be necessary to assess the
credibility and reliability of the plaintiff’s evidence.
POSITIONS OF THE PARTIES
The Plaintiff
[6]
The plaintiff submits that but for the motor vehicle accident of October
10, 2009 she would not have suffered the emotional and psychological collapse
which continues to render her dysfunctional. Prior to the motor vehicle
accident, the plaintiff experienced fluctuating levels of depression and
anxiety and recurring complaints of pain in her neck and back, and pain that
radiated from right shoulder down to her right hand. However, the plaintiff
says none of these symptoms interfered with her functioning at work, or
socially.
[7]
The plaintiff submits that the motor vehicle accident was a highly
traumatic experience for her and that her pre-accident history of emotional
trauma and anxiety made her particularly vulnerable to further impairment of
her emotional and psychological functioning. The plaintiff submits that she
suffered both physical and psychiatric injuries in the motor vehicle accident.
Ms. Andrews says although she has made a substantial but incomplete
recovery from her physical injuries, her psychiatric injuries have severely
impaired her emotional boundaries, disabled her from any employment at the
present time, and may prevent her from ever resuming her former employment as a
counsellor to First Nations residential school survivors.
The Defendants
[8]
The defendants acknowledge that the plaintiff is entitled to damages for
the physical and psychological injuries she sustained in the motor vehicle
accident. However, they say that on the weight of the evidence, the plaintiff’s
psychological condition had reached a crisis point by September 2009, and that
most of the plaintiff’s post-accident complaints were caused by her
pre-existing condition, rather than by the accident. The plaintiff had a
long-standing history of fluctuating levels of anxiety and depression.
Although the plaintiff had managed to function before the motor vehicle
accident, the defendants submit that the clinical notes of the plaintiff’s
family physician, Dr. Zhang, for September 2009, that the plaintiff was
depressed, irritable and "losing her mind", show that Ms. Andrews’
psychological disorders had reached a crisis level shortly before the accident.
[9]
The defendants argue it is probable that the plaintiff was suffering
profound distress because she was unable to maintain emotional boundaries
between herself and the clients she was counselling, who had serious
psychological problems, and histories of childhood neglect and abuse similar to
that suffered by the plaintiff. The defendants invite the court to find that
the plaintiff’s desire to help people with whom she empathized deeply, combined
with her inability to cope with the demands of counselling residential school
survivors, took a heavy emotional and psychological toll on the plaintiff,
which reached the crisis point as her contract with Health Canada came to an
end in September 2009.
[10]
The defendants rely upon the evidence of their expert in psychiatry, Dr. Vallance,
that the plaintiff should never have attempted to counsel residential school
survivors, given her own emotional and psychological problems. Dr. Vallance
also gave evidence that because the plaintiff’s self-identity was so closely
tied to her academic and workplace success, she would never admit to herself
that she could not maintain proper emotional boundaries with her clients.
[11]
The defendants submit that the motor vehicle accident caused a
temporary exacerbation of the plaintiff’s pre-existing physical and
psychological symptoms which had likely resolved by May 2010, before Ms. Andrews
and her dog were attacked by two off-leash German Shepherds. The defendants
contend that event, and subsequent traumatic incidents, including the plaintiff’s
second encounter in August 2011 with the owner of the German Shepherds and her
witnessing of a sexual assault in July 2012, have all contributed to her
ongoing anxiety, stress and dysfunction. The defendants submit that damages
should be assessed for a seven month temporary exacerbation of the plaintiff’s
pre-existing conditions. They argue that Ms. Andrews has no entitlement to
damages for loss of future earning capacity, or cost of future care.
FACTS
The Plaintiff
[12]
The plaintiff, who was 51 years old at the time of the accident, and 55
at the time of trial, is a member of the Blood First Nation. She spent her
early childhood, until age five on the Blood Reserve, located near Cardston,
Alberta. The plaintiff was the second of her mother’s four children. Sometime
between the ages of three and five, Ms. Andrews spent approximately a year
at St. Paul’s Residential School, located on the Blood Reserve. The plaintiff
was the youngest child at the school. She recalls that if one child
misbehaved, they were all spanked. She has no other recollection of being
subjected to any form of abuse at the residential school.
[13]
In 1962, the plaintiff moved with her mother and step-father to Calgary,
and two years later to Ottawa, where her step-father was employed as an
engineer. Around 1969, her step-father moved the family back to Calgary,
although he continued to work in Ottawa for another year. During the year she
was alone in Calgary, the plaintiff’s mother drank heavily, was unable to cope
with the demands of four young children and physically abused the plaintiff.
[14]
During grades eight and nine, the plaintiff associated with a group of
friends and young adults who consumed alcohol and used drugs. Through her
remaining years in school, and until 1987, the plaintiff abused alcohol and
also used drugs intermittently. Ms. Andrews completed grade eight, and
took some courses in successive grades until she quit school in grade 11.
After Ms. Andrews left school, she worked in various retail positions and
as a waitress in nightclubs and restaurants. She also found some work as a
model and actress.
[15]
In 1981, the plaintiff moved to Vancouver where she continued to work as
a waitress, bartender and model. In 1987, the plaintiff, then 30 years old, decided
to put an end to her alcohol abuse. She was referred to the Aurora House
Residential Treatment Centre where she successfully completed a six-week
rehabilitation program. The plaintiff has not consumed alcohol or used illicit
drugs since then.
[16]
In 1988, Ms. Andrews enrolled in Langara College’s University
Transfer Program while continuing to work part-time as a waitress.
[17]
In September 1992, the plaintiff enrolled at the University of British
Columbia and obtained her Bachelor of Arts in Anthropology in 1996. While
attending university she worked part-time for Air Canada as a customer service
agent.
[18]
In February 1997, Ms. Andrews obtained a part-time position as a
First Nations Student Advisor at Vancouver Community College. She continued in
that position until 2005.
[19]
In 2000, the plaintiff began her Master of Education Degree in
Counselling Psychology at the University of British Columbia. She obtained her
Master’s Degree in May 2004. Ms. Andrews achieved high grades throughout
her studies at UBC, and takes well-deserved pride in her academic success.
[20]
The plaintiff’s objective, upon completing her Master’s Degree, was to
provide counselling services to residential school survivors.
[21]
In July 2004, the plaintiff resigned from her position at Vancouver
Community College in order to pursue her desired career. She then commenced
employment with the Indian Residential Schools Survivors Society ("IRSSS")
as a contractor, at an hourly rate of $24.73. She was engaged by IRSSS to
assist First Nations people participating in the Residential Schools
compensation process. In January 2005, the plaintiff obtained a full-time
position with IRSSS as a Resolution Health Support Worker at an annual salary
of $50,000. In June 2005, the plaintiff moved into the position of a therapist
at IRSSS and her salary increased to $60,000 per year. While employed with
IRSSS, Ms. Andrews also provided counselling services to First Nations
youth at risk in the Downtown Eastside through the Watari Society, for 12 hours
a week at the rate of $30 per hour.
[22]
The plaintiff left her employment with IRSSS in January 2007, when she
obtained her certification as a Registered Clinical Counsellor. As a self-employed
counsellor she provided services through Health Canada to claimants
participating in the informal claims resolution process for residential school
survivors. From June 2008 until September 2009, Ms. Andrews commuted on a
weekly basis from Vancouver to Port Hardy in order to serve the large number of
claimants located on northern Vancouver Island. Health Canada paid the
plaintiff a per diem rate for counselling which started at $650 and had
increased to $900 per day by September 2009 when she terminated her contract with
Health Canada.
[23]
Ms. Andrews testified that her services as an aboriginal counsellor
to residential school survivors were in demand, that she received referrals
from her clients, and from lawyers involved in the compensation process, and
that she had never found it necessary to market her services in Vancouver.
[24]
The plaintiff’s last day of work before the accident was September 26,
2009. She estimated that 80 percent of her work at Port Hardy was on reserve.
As a member of the Blood First Nation, the plaintiff was not required to pay
income tax on income earned from on reserve employment.
[25]
In November 2007, Ms. Andrews began a relationship with Mr. Frank
Priolo, an aeronautical engineer who lives in Maryland, in the United States of
America, but travels extensively for his work. The plaintiff described her
relationship with Mr. Priolo as "up and down" until April 2009. Ms. Andrews
and Mr. Priolo separated from February 2009 until April 2009 when they
resumed their relationship. Since then, they have maintained their
relationship. Mr. Priolo has provided much needed emotional support, as
well as financial assistance, to the plaintiff since the accident. Ms. Andrews
and Mr. Priolo became engaged in February 2013, but at the time of trial
had not yet set a date for their marriage.
[26]
Immediately before the motor vehicle accident, the plaintiff was
exploring her options for employment. She wanted to spend time with Mr. Priolo,
and with her parents in Calgary. She was looking into opportunities for
counselling work in Alberta, either through the Blackfoot Confederacy or in the
Calgary area. The plaintiff was also considering the possibility of opening an
office for her counselling practice in Vancouver. In addition, because Ms. Andrews
anticipated that she and Mr. Priolo would be establishing a home base in
the Washington, D.C. area, she had contacted an agency in Maryland to inquire
about the requirements for licensing as a counsellor there. The plaintiff was
also looking into the possibility of pursuing a Doctorate of Education at the
University of British Columbia, either on a part-time basis or by distance
education. She had made no firm plan to do so before the motor vehicle
accident. However, if she enrolled in a doctoral program, she intended to work
part time while she pursued her studies. The plaintiff had worked in order to
support herself throughout her earlier post-secondary education. I accept her
evidence that she planned to work part time if she enrolled in a PhD program.
[27]
Mr. Priolo understood that at the time of the accident the plaintiff
intended to take some time off, and to investigate obtaining work in Calgary
similar to the work she had done in Port Hardy with residential school
survivors. Mr. Priolo confirmed that he and Ms. Andrews were
planning, at the time of the accident, to set up a home base in Washington,
D.C. The plaintiff had looked into obtaining a licence to practice as a
Clinical Counsellor in the Washington area and had looked into obtaining
full-time employment with the Bureau of Indian Affairs in Washington.
[28]
In direct examination, Ms. Andrews was asked about her mental
health history prior to the motor vehicle accident. She testified that she
only saw depression and anxiety affecting her relationships with men. During bouts
of deep depression or anxiety she would not eat, sometimes had difficulty
sleeping, and would cry a lot. However, she was still able to work. The
plaintiff testified that in the five years before the motor vehicle accident
she had no personal counselling. Ms. Andrews explained that after she
commenced her employment with IRSSS she was required to have counselling
supervision. She met between one and three times a month with a psychologist, Tracy
Good, to make sure that she was using the appropriate counselling methods with
her clients and to ensure that she maintained boundaries between herself and
her clients. The plaintiff testified that she had no counselling from Ms. Good
for personal issues while she was employed with IRSSS but had seen Ms. Good
previously for counselling during and after difficult relationships.
[29]
Ms. Andrews testified that she never missed work due to depression
or anxiety before the motor vehicle accident. When shown the clinical record,
the plaintiff did acknowledge that in March 2006 she took 10 days stress leave
from her employment with IRSSS. Ms. Andrews attributed her stress in the
workplace at that time to a difficult relationship with her supervisor. I find
this was the only time the plaintiff lost from work as a result of stress or
anxiety before the accident.
[30]
According to the plaintiff, in September 2009, neither physical nor
psychological problems were interfering with her life. However she acknowledged
she was highly conflicted about her decision to leave Port Hardy and no longer
serve her clients there. She testified that she had no plan to retire and
thought she could continue to work as a therapist into her 70s.
[31]
In direct examination, the plaintiff gave evidence that in September
2009 she had a busy social life, was closely connected with the First Nations
community, ran 20 to 30 kilometers a week and participated in a range of
sporting activities, including playing golf, cross-country skiing and bowling.
She also visited her parents in Alberta frequently, entertained friends, went
to the movies, shopped and hiked.
The Plaintiff’s Pre-Accident
Medical History
[32]
Ms. Andrews’ pre-accident medical history involved a complex array
of both physical and psychiatric conditions.
The Plaintiff’s Pre-Accident Physical Condition
[33]
The plaintiff had a history of fibromyalgia, first diagnosed in 1992. However
there is no recent diagnosis or medical opinion suggesting that Ms. Andrews
continued to suffer from that condition at the time of the October 2009
accident.
[34]
In November 2005, the plaintiff saw her general practitioner, Dr. Mandy
Karim, following an accident where the vehicle in which she was travelling as a
passenger was rear-ended by another vehicle. Dr. Karim noted that the
plaintiff complained of pain and numbness in her right shoulder and arm, and
diagnosed a sprain to Ms. Andrews’ cervical spine and right shoulder.
[35]
In July 2006, following a slip and fall, the plaintiff complained of low
back pain, tingling in her head, numb shoulders and a numb right arm. She
received chiropractic treatment from Dr. Charles Campbell for her head,
neck, upper and lower back symptoms.
[36]
On February 6, 2008, the plaintiff attended at the Seymour Medical
Clinic, where Dr. Rui Zhang, who was then her family physician, noted her
complaints of neck, low back and right hip pain, and numbness and tingling in
her right hand and toes. X-rays of the plaintiff’s neck performed March 3,
2008 revealed the presence of degenerative disc disease from C5 to C7 and
arthritis of the facets at C4-5 and C7-T1.
[37]
On March 3, 2008, the plaintiff saw a physiatrist, Dr. Ian Murray
about her complaints of right arm pain and numbness. Dr. Murray diagnosed
the plaintiff with arthritis of her neck and associated nerve root impingement.
A CT scan of the neck on April 28, 2008 indicated severe disc disease at C5-6
and C6-7.
[38]
The plaintiff was last seen at the Seymour Medical Clinic before the
accident on September 15, 2009, at which time she complained of headaches
affecting the back and sides of her head, neck pains, shoulder pains, and
stress.
[39]
I find that before the accident, the plaintiff suffered from moderate to
severe arthritis of the cervical spine that caused her neck pain and the
radiating pain or numbness in her right shoulder and arm which troubled her
intermittently. I also find that the plaintiff suffered from low back and
right hip pain, headaches and insomnia from time to time before the motor
vehicle accident.
The Plaintiff’s Pre-Accident Psychiatric Condition
[40]
The plaintiff reported that she suffered head injuries in 1981 and
1997. In 1981 Ms. Andrews struck her head on a dumpster lid while working
as a waitress. In 1997, while riding in a jeep over rough terrain in Arizona,
she struck her head on the vehicle’s roll bar. Neither injury had any long term
consequences. In light of her subsequent exceptional academic performance, I
find that neither of these events impaired her cognitive abilities.
[41]
The plaintiff had a long-standing history of anxiety, depression and
mood disorders prior to the motor vehicle accident. In August 2004 the
plaintiff completed a questionnaire for the diet clinic she was then attending
in which she reported the following symptoms:
(a) can’t decide easily (moderate);
(b) chronic fatigue (moderate);
(c) lack of energy (moderate);
(d) magnifies insignificant events (moderate);
(e) sleepy after meals (moderate);
(f) sleepy during the day (moderate);
(g) insomnia (severe); and
(h) poor
memory (severe).
[42]
In a further questionnaire, which the plaintiff completed on July 9,
2007, she endorsed as "moderate" the following symptoms: chronic
fatigue due to weight gain; insomnia; and sleepy during the day. Ms. Andrews
identified as "moderate to severe" symptoms of insomnia and lack of
energy.
[43]
Between July 11, 2007 and August 7, 2008 the plaintiff attended at the
Seymour Medical Clinic on fifteen occasions for treatment for mood disorder,
anxiety or depression. She received prescriptions for Wellbutrin, an
anti-depressant, Seroquel, a psychotropic medication, and Ativan to relieve her
anxiety.
[44]
In July 2008, the plaintiff was referred by Dr. Zhang to the
University of British Columbia Mood Disorders Clinic for a psychiatric
assessment. Dr. Kevin Solomons saw the plaintiff. On December 4, 2008, he
noted the plaintiff’s history of childhood abuse and neglect, and reported that
she was feeling "empty, worthless and miserable". Dr. Solomons diagnosed
dysthymia, a mood disorder characterized by chronic low grade depression, and
found no signs of post-traumatic stress or major depression. He recommended
that the plaintiff continue Wellbutrin and counselling.
[45]
On March 27, 2009, during the plaintiff’s separation from Mr. Priolo,
Dr. Zhang noted that Ms. Andrews had no anxiety attack since breaking
up with her boyfriend, but "still feels low".
[46]
Prior the accident, the plaintiff’s treatments included medications,
counselling and Eye Movement Desensitization Reprocessing Therapy ("EMDR").
At the time of the accident, the plaintiff still had prescriptions for
Wellbutrin, Seroquel and Ativan.
[47]
On September 1, 2009, the plaintiff saw Dr. Rui Zhang, who was then
her family physician, at the Seymour Medical Clinic. Dr. Zhang’s clinical
note included the following entry:
Depression
"Losing
mind" depressed, irritable, angry moments of despair not cleaning rooms. No
suicidal plans but sleeps doesn’t wake up.
Saw psychiatrist twice.
Doesn’t find he helps.
[48]
The plaintiff last saw Dr. Zhang on September 15, 2009. Dr. Zhang
recorded that the plaintiff had a lot of worries, felt tense, lacked support in
Vancouver and wanted to move back to Calgary and stay close to her family.
[49]
Dr. O’Shaughnessy, a leading forensic psychiatrist, examined Ms. Andrews
at the request of her counsel on November 20, 2012.
[50]
Dr. O’Shaughnessy thought that before the accident the plaintiff
suffered from dysthymia, which he described as a mood disorder characterized by
"chronic low grade depressed moods often associated with significant
psycho-social difficulties and/or underlying personality trait difficulties".
He also diagnosed the plaintiff’s pre-accident condition as involving possible
previous episodes of major depressive disorder in remission with medications. Dr. O’Shaughnessy
thought that before the accident the plaintiff also met the criteria for
Cluster B personality traits or disorder. He explained that condition
describes people who have problems with emotional regulation, relationship
difficulties, problems with self-esteem as well as difficulties with their
identity and self-management. He thought those symptoms had waxed and waned
over the years, depending on the particular stresses affecting the plaintiff
and how she was able to cope with them at the time.
[51]
I accept the opinion of Dr. O’Shaughnessy, shared by Dr. Vallance,
that before the accident the plaintiff suffered from dysthymia, and had for
many years experienced fluctuating levels of anxiety and depression that waxed
and waned depending on the particular stressors affecting her from time to time.
I also find that the plaintiff’s sense of identity and self-worth was closely
tied to her high level of academic achievement and her work as a counsellor for
residential school survivors. I accept Dr. O’ Shaughnessy’s opinion that
before the accident the plaintiff also had the problems with emotional
regulation, low self-esteem and difficulties with relationships that he
identified as comprising the Cluster B personality traits or disorder.
The Accident
[52]
On October 10, 2009, at approximately 2:50 p.m., the plaintiff was
driving home from Vancouver International Airport, where she had picked up Mr. Priolo.
She was driving west on West 16th Avenue, toward the intersection of
West 16th and Fir Streets at a speed of 40 to 45 kilometers per
hour. Mr. Priolo was in the front passenger seat, holding the plaintiff’s
dog, Dixie. As the plaintiff proceeded toward the intersection with the green
light in her favour, the defendant Mainster attempted a left turn and collided
with the front end of the plaintiff’s vehicle, which sustained significant
damage. Ms. Andrews testified that upon impact she felt a "shock
wave" and experienced excruciating pain in her chest. She recalled that Mr. Priolo
undid her seatbelt and that she then opened the door, exited the vehicle and lay
down on the road. The plaintiff testified that she "blacked out"
briefly and then recalled someone assisting her onto the grass by the roadside,
where she laid down.
[53]
Mr. Priolo recalled that immediately after the collision the
plaintiff was screaming and that he helped her out of her seatbelt. After he
exited the vehicle, he found the plaintiff lying on the roadside crying, and
complaining of chest pain. With the help of passersby, he assisted the
plaintiff to the side of the road and remained with her until the plaintiff was
taken by ambulance to hospital.
[54]
The plaintiff was transported by ambulance to Vancouver General Hospital
("VGH"). Ms. Andrews testified that she was shocked, scared,
felt pain in the center of her chest, and thought she was going to die.
[55]
X-rays taken at VGH of the plaintiff’s chest and neck showed no acute
injuries but revealed degenerative changes to the neck from C4 to C7. The
emergency room records indicate there was no evidence of a head injury or head
trauma. Ms. Andrews was given Extra Strength Tylenol and was discharged
from the hospital. Mr. Priolo took her home.
[56]
When Ms. Andrews attended the Seymour Medical Clinic on October 13,
2009, she complained of chest pain, difficulty breathing, neck pains, right arm
numbness, tingling and weakness, difficulty with sleep and anxiety.
[57]
On October 16, 2009, the plaintiff saw Dr. Karim and complained of
chest pain at that time.
[58]
The plaintiff underwent MRI scans of her brain and chest at Canadian
Medical Imaging on October 20, 2009. The brain scan showed the presence of
encephalomalacia, or atrophic changes of the brain in certain areas, as well as
a right frontal lesion that was thought to be consistent with haemosiderin
deposition due to high blood pressure or possibly trauma.
[59]
The MRI chest scan showed two small undisplaced fractures of the
plaintiff’s sternum.
[60]
In his medical/legal report of October 17, 2012, Dr. Andrew Travlos,
a physiatrist retained by the plaintiff to provide an opinion for this
litigation, noted that the MRI brain scan took place 10 days after the accident
and that this would not be sufficient time for wasting of the brain to have
arisen from the accident, or for the development of a haemosiderin stain. Dr. Travlos
opined that if there had been bleeding from the accident, the MRI scan would
have shown an area of bleeding in the brain rather than the haemosiderin
staining. I accept Dr. Travlos’ opinion that the MRI brain scan findings
pre-dated the accident, and find that the plaintiff did not suffer a concussion,
or any traumatic brain injury as a result of the accident. I also note the
plaintiff reported no loss of consciousness when she was examined at the VGH Emergency
Department.
[61]
As for the plaintiff’s evidence that she "blacked out", Dr. Travlos
explained that patients who are concussed do not recall the experience. He
thought that Ms. Andrew’s detailed recollection of the accident and its
aftermath weighed against a head injury or concussion.
[62]
If Ms. Andrews blacked out after getting out of her vehicle, she
did so only briefly. She was conscious when Mr. Priolo came round to her
side of the vehicle and assisted her off the road. Again, I accept Dr. Travlos’
opinion, and find that the delayed onset of any blacking out militates against
a concussion and was more likely due to low blood pressure or shock.
The Plaintiff’s Injuries
[63]
When Mr. Priolo saw the plaintiff at VGH after the accident she complained
of pain in her chest and right shoulder. He also noticed that she would lose
her train of thought, and seemed to have lapses of memory during their
conversations.
[64]
Ms. Andrews was discharged from hospital later on the day of the
accident. After Mr. Priolo took the plaintiff home, he cared for her for
several days. He testified that during this time the plaintiff continued to
be in a lot of pain, that she needed his help to get into and out of bed and to
shower, and that she could not cook or do any laundry. The plaintiff also had
difficulty sleeping and complained of nightmares.
[65]
I accept the plaintiff’s evidence that in the days immediately following
the motor vehicle accident, she had bruising to her chest and right shoulder,
experienced pain in her chest, and numbness and tingling in her right arm. She
had difficulty sleeping, and when she did sleep, experienced nightmares.
[66]
Following the motor vehicle accident, Mr. Priolo increased the
frequency of his visits to Vancouver to help care for the plaintiff. Before
the motor vehicle accident, he typically travelled about four times a year from
Washington, D.C. to Vancouver, and Ms. Andrews travelled about the same
number of times each year to Washington, D.C. Since the accident, Mr. Priolo
travels to Vancouver between 15 and 20 times a year.
[67]
Mr. Priolo testified that the plaintiff continues to have memory
lapses, expresses fear of her own death, and fears that he and her parents will
die. When Mr. Priolo comes to Vancouver, he makes sure that the plaintiff
is paying her bills and attends her medical and therapeutic appointments.
[68]
As a result of the injuries she suffered in the accident, Ms. Andrews
required some assistance with personal care, cleaning and cooking until about
February 2010. The physical injuries she attributes to the motor vehicle
accident include increased pain in her neck, headaches, fractured chest,
whiplash injuries, pain and numbness in her right arm and shoulder, and pain in
her right hip and lower back.
[69]
Ms. Andrews described her psychological injuries as nightmares,
isolation, rage, a loss of emotional boundaries, irrational fear, and fear of
driving, which has improved over time. Whereas previously she had been able to
work through her depression and anxiety, Ms. Andrews said she is now
unable to do so.
[70]
The plaintiff received physiotherapy which started soon after the motor
vehicle accident and was continuing at the time of trial. She has found the
physiotherapy to be helpful.
[71]
Ms. Andrews testified that counselling from Dr. Jung, a
psychologist, which began in June 2010, and continued on a weekly basis until July
2012 was "helpful to a point". In July 2012, she changed to Dr. Joanne
MacKinnon for EMDR therapy which she has found to be quite helpful. She is no
longer as anxious with Mr. Priolo and has more hope for the future.
[72]
Ms. Andrews described the May 2010 incident where Dixie, her small
terrier, was attacked by two off-leash German Shepherds. In August 2011, she
had a second encounter with the owner of the German Shepherds, who was
threatening and abusive to her. The woman who owned the German Shepherds drove
up to her while the plaintiff was walking her dog, threatened to kill her dog
and told the plaintiff that she knew where she lived. Ms. Andrews was
understandably disturbed and fearful following this incident. When asked why
she had not related this incident to Dr. O’Shaughnessy and others she saw
for medical/legal purposes, Ms. Andrews said that she did not recall the
incident until it was brought up at her discovery.
[73]
The plaintiff also described the incident in July 2012 where she
witnessed a sexual assault very near her apartment and said that she was
fearful when walking her dog following this incident.
[74]
The plaintiff testified that her physical injuries have improved. Her
right arm is no longer numb and she has the full use of her right arm, although
she believes it is still a little weak. Ms. Andrews said that her right
hip gives her trouble from time to time but she is learning to manage it.
[75]
The plaintiff testified in direct examination that by the time of trial she
was 75 percent recovered from the physical injuries she sustained in the motor
vehicle accident.
[76]
Ms. Andrews testified that on a typical day, if she has no
appointments for treatment or therapy, she gets up between 10:00 a.m. and noon,
takes the dog for a brief walk, and then returns to her apartment where she
lays on the couch until 4:00 or 5:00 p.m. watching television or playing on her
iPad. She walks to Granville Island to purchase groceries, and often will not
shower. Typically, she spends her evenings on the couch watching television or
reading. When Mr. Priolo is not in Vancouver, she will telephone him, or
her parents. These are the only people she contacts on a regular basis. Ms. Andrews
said she is still struggling with self-care, although she is able to look after
herself when Mr. Priolo visits. Despite advice from her caregivers that
she should go to bed and get up at consistent times, she continues to sleep
during the afternoons and early evenings.
[77]
Ms. Andrews described the state of her apartment as "embarrassing".
She said she finds completely cleaning her 700 square foot one bedroom
apartment overwhelming.
[78]
The plaintiff thought she had gained over 20 pounds since the accident
and said that she did not really have to struggle with her weight before the
accident because she was in good physical condition. However, the clinical
record indicates the plaintiff attended weight loss clinics in 2004 and 2007
and in 2007 complained of chronic fatigue that she attributed to weight gain. I
find that the plaintiff’s weight fluctuated before and after the accident, and
probably did so as her depression, and level of physical activity, waxed and
waned.
[79]
Ms. Andrews has not worked since the motor vehicle accident. In
2011, she applied for two positions − one with Vancouver Community
College and the other with an addiction center for seniors in Richmond. Ms. Andrews
said that neither prospective employer called her for interviews, and that she
had sent the wrong covering letter with her application to Richmond. She
attributed that error to an impairment of her cognitive functions caused by the
accident.
[80]
With respect to future employment, Ms. Andrews testified that she
dislikes being dependent and would like to return to work as a counsellor but
is not yet ready to do so. She accepts that in her present psychological
condition she would not be able to maintain appropriate boundaries with her
clients. However, she hopes to return to work as a therapist and to serve
clients in the First Nations community.
[81]
In her direct examination, Ms. Andrews was asked about previous car
accidents. She recalled an incident around 2004 when her vehicle was
rear-ended but said she was not injured. The plaintiff did not recall a motor
vehicle accident in 2005 and did not remember receiving any treatment for it. Ms. Andrews
did remember striking her head on the roll bar of the Jeep while in Arizona in
1997. She remembered somebody telling her to have the blow to her head checked
as she was having neck problems at the time. However, Ms. Andrews does
not recall receiving any treatment.
THE EXPERT MEDICAL EVIDENCE
Dr. Thomas Kay
[82]
Dr. Thomas Kay, a psychologist, performed a two-day
neuro-psychological evaluation of the plaintiff one year after the accident, on
October 5 and 7, 2010. Unfortunately, Dr. Kay died before the trial. By
reasons indexed as Andrews v. Mainster, 2013 BCSC 501, I ruled
that those parts of Dr. Kay’s report that recorded the history he took
from Ms. Andrews, discussed the tests he administered and set out his
opinions on the results of his testing of the plaintiff’s cognitive functioning
met the requirements of necessity and reliability for their admission into
evidence.
[83]
Dr. Kay was asked by plaintiff’s counsel to evaluate the nature and
extent of possible psychological or neuro-psychological injuries suffered by
the plaintiff in the motor vehicle accident of October 10, 2009. In addition
to interviewing Ms. Andrews, Dr. Kay administered a battery of
cognitive tests. He found that the plaintiff performed extremely well on all
of those tests with scores in the high average to superior range. On the
Wechsler Adult Intelligence Scale, the plaintiff obtained an IQ of 126, at the
96th percentile, which falls in the superior range. She scored in
the 99th percentile for immediate memory, and in the 97th
percentile for delayed memory.
[84]
Dr. Kay’s tests revealed no evidence of any memory deficit. There
was nothing in Dr. Kay’s neuro-psychological evaluation to suggest the
plaintiff had suffered brain damage. Dr. Kay also concluded, on the basis
of his interview of Ms. Andrews, that she had essentially continuous
recall of the accident. He thought that any confusion the plaintiff
experienced immediately following the accident was most likely due to pain and
emotion, rather than to the plaintiff having suffered a concussion in the motor
vehicle accident. Dr. Kay’s report provides a unique assessment of the
plaintiff’s cognitive functioning one year following the accident.
Dr. Roy O’Shaughnessy
[85]
At the time of his examination in November 2012, Dr. O’Shaughnessy
diagnosed the plaintiff as having:
1. pain disorder;
2. generalized anxiety
disorder;
3. possible
PTSD in partial remission.
[86]
He described a pain disorder as a somatoform illness in which the person’s
complaints of pain are thought to have a significant psychological component.
Commonly, and in the plaintiff’s case, both medical and psychological factors
play a role in the patient’s pain.
[87]
Dr. O’Shaughnessy described generalized anxiety disorder as "chronic
fears in a wide group of areas accompanied by free-floating anxiety symptoms.
Persons with this disorder experience catastrophic thoughts and unrealistic
fears which they are unable to suppress or control".
[88]
At page seven of his report, Dr. O’Shaughnessy offered this
opinion:
In review of the material
here, it is clear that this woman did have pre-existing Anxiety Disorder but it
became much worse post accident. Many of the anxiety themes have car accident
content and certainly there are elements of PTSD evident. It is difficult,
however, especially in retrospect, to determine how much of this is a new
disorder, i.e. PTSD, versus aggravation of the pre-existing Anxiety Disorder.
From a functional perspective, the issue is really somewhat moot insofar as
this lady clearly has become much worse post accident whether it be due to an
increase in the Anxiety Disorder or a new Anxiety Disorder, i.e. PTSD. Further,
it interacts with the pain, resulting in the Pain Disorder.
The
Pain Disorder is more likely than not caused by the accident in question. I
note in the past that she has had complaints of pain but not to the point where
it caused any dysfunction nor did she have the same degree of preoccupation or
perception of being impaired as she currently demonstrates.
[89]
Dr. Vallance, the defendant’s expert in psychiatry, agrees with Dr. O’Shaughnessy’s
opinion that Ms. Andrews’ pre-existing anxiety disorder became much worse
after the accident and that her anxiety disorder interacts with her pain
resulting in the pain disorder.
[90]
With respect to causation, Dr. O’Shaughnessy offered this opinion:
Issues of causation in this
instance are clearly complicated. As above, she does have a pre-existing
Anxiety Disorder and possible Mood Disorder and has had waxing and waning of
symptoms depending on stresses over the years. From my review of the records and
from my discussions with her, there appears to be a clear worsening of her
symptoms post accident. This is entirely expected given that Anxiety Disorders
and Mood Disorders themselves are extremely sensitive to psychosocial stresses
in general and in particular to traumatic events such as car accidents of this
type. Certainly the self-report and the medication and medical records
documents indicate both an increase in symptoms and increase in dose of
antidepressant medications consistent with the aggravation or worsening of her
pre-existing disorder. She had been more functional before the accident and has
become dysfunctional now.
In addition, she has now
developed a Pain Disorder that more likely than not would not have occurred but
for the injuries sustained in the accident.
As
above, it is possible she also developed a PTSD that was more evident early on.
Certainly Dr. Kay notes greater symptoms when he saw her in 2010
consistent with a Post-Traumatic Stress Disorder than were evident when I saw
her in 2012. The fright of the accident was obviously a significant event for
her with evidence of anxiety at the scene and in the emergency room with
increased anxiety symptoms thereafter.
[91]
Dr. O’Shaughnessy concluded his report with these observations on
the plaintiff’s functioning:
From
a functional perspective, she was doing better before the accident although had
been in a difficult period in the weeks preceding the accident given the
decision to shift job and location. She has clearly had significant dysfunction
post accident that persists to the present. At this point she is not working
and frankly, given the nature of her symptoms and preoccupation, I do not think
she is capable of work at the current time. It is likely that with appropriate
treatment she will experience reduction in symptoms that will possibly allow
her to return to her chosen field as a counsellor.
[92]
Dr. Vallance agreed that the plaintiff was probably not capable of
work at the time that Dr. O’Shaughnessy prepared his report.
[93]
Dr. O’Shaughnessy refers at page three of his report to the
difficulty in assessing the impact of the plaintiff’s underlying and ongoing
anxiety on her functioning. He described the plaintiff as having a complex
presentation, which includes difficulties with mood regulation. Throughout
much of her life, the plaintiff has experienced fluctuations in anxiety and
depression. She sees herself as the victim of relationship difficulties and
lacks full insight into the impact of anxiety and depression upon her
functioning.
[94]
In Dr. O’Shaughnessy’s opinion, these are long-standing
difficulties that preceded the accident. However he thought there was a notable
increase in the plaintiff’s symptoms after the accident of October 10, 2009.
He explained that whether one views the plaintiff’s post motor vehicle accident
symptoms as a new condition or as the exacerbation of a pre-existing condition,
her functional capacity has worsened and she has experienced more mood
disruptions and more catastrophic thoughts than she did before the accident.
[95]
Dr. O’Shaughnessy thought that the plaintiff cannot function as a
therapist or counsellor dealing with clients with high levels of anxiety,
depression and trauma when she is preoccupied with her own symptoms and
dysfunction.
[96]
Dr. O’Shaughnessy said in cross-examination that he relied more on
the documented clinical record for the history or timelines of the plaintiff’s
psychological condition and its treatment than he did on Ms. Andrews’
subjective reporting.
[97]
When Dr. O’Shaughnessy interviewed the plaintiff, she acknowledged
that she had difficulties in setting and keeping appropriate boundaries. He
agreed that anxiety disorders will wax and wane depending on what is happening
in the patient’s life.
[98]
Nothing that the plaintiff told Dr. O’Shaughnessy explained Dr. Zhang’s
clinical note of September 1, 2009 that the plaintiff was depressed, irritable,
and was "losing her mind". At this time, the plaintiff had restored
her relationship with Mr. Priolo.
[99]
Based on his interview with the plaintiff, it was clear to Dr. O’Shaughnessy
that Ms. Andrews was experiencing on and off periods of anxiety and
depression. He described the plaintiff as having a way of looking at her life
that is different from what an objective observer would report. Dr. O’Shaughnessy
said that the plaintiff sees events as much more dire than would the average
person in similar circumstances.
[100] Dr. O’Shaughnessy
was aware that the plaintiff, from her early childhood to age five, experienced
periods of neglect and separation from her mother. He thought her recollection
of the time spent at the residential school between the age of three and five
was likely based on what she was told later. Dr. O’Shaughnessy explained
that the memory of children under five is not reliable.
[101] Dr. O’Shaughnessy
understood that the plaintiff had abused alcohol between the ages of 15 to 30.
Dr. O’Shaughnessy said the plaintiff told him that she had been involved
in drug use through her teenage years. He understood that while the plaintiff,
like other teens, had used drugs from time to time, there was no pattern of
drug abuse by the plaintiff. He contrasted this with the clear pattern of abuse
of alcohol by the plaintiff to age 30.
[102] In
cross-examination, Dr. O’Shaughnessy acknowledged that there is no
objective way of determining the extent to which the plaintiff’s complaints of
physical pain were or are attributable to the accident or her pre-existing
conditions. However, when the plaintiff is exposed to trauma, her underlying
psychological and physical conditions are worsened. Following the motor
vehicle accident, the plaintiff’s functioning deteriorated. Previously, she
had been able to function in her work as a counsellor when experiencing periods
of anxiety or depression. However, she was unable to do so after the motor
vehicle accident.
[103] Dr. O’Shaughnessy
agreed that both the incident of May 2010 when Ms. Andrews and her dog
were attacked by two off-leash German Shepherds, and her encounter with the
owner of the German Shepherds on August 15, 2011, who screamed obscenities at her
and threatened to kill her and her dog would have elevated the plaintiff’s
level of anxiety and could have caused a set-back. Later in his cross
examination, Dr. O’Shaughnessy agreed that the plaintiff’s encounters with
the German Shepherds and their abusive owner were events that traumatized the
plaintiff.
[104] The
plaintiff did not disclose to Dr. O’Shaughnessy that she had observed a
sexual assault from the balcony of her home. He agreed that this was an event
that would likely have a greater impact on an emotionally vulnerable person
than on others.
[105] Dr. O’Shaughnessy
agreed that the fact the plaintiff was attending for her treatments at the time
of trial, was making more of an effort to follow the recommendations of her
care providers, was letting go of her emotional attachment to the accident, and
reported that she was benefitting from seeing her psychologist, Ms. McKinnon,
were all positive factors.
Dr. Maelor Vallance
[106]
Dr. Maelor Vallance performed an independent psychiatric
examination of the plaintiff for the defendant on March 12, 2012. In his
report of March 23, 2012, Dr. Vallance offered this opinion on the effect
of the motor vehicle accident on the plaintiff’s psychological condition:
Rather than produce features
of a Post-Traumatic Stress Disorder I believe that having to deal with the
increased pain that she experienced after the accident together with the
disruption in her usual routines aggravated her pre-existing emotional
problems. Dr. Solomons, in his report of December 4, 2008, described her
vulnerabilities and ongoing emotional problems which he attributed to "a
protracted and pernicious experience of childhood neglect and abuse." I
agree with his summation and particularly the effect on self image bolstered
only by her academic achievement and her issues of emotional dependency
impacting on her interpersonal relationships, particularly with men. Given the
post accident threat of an exacerbation of her pre-existing physical problems,
her enforced dependency, not having the ego boost of her job, and lacking
emotional supports for a time at least, she had an exacerbation of her
pre-existing anxiety and depression. While these problems may have been
escalating just before the accident such as reflected in her family doctor’s
records, even so, the effect of the accident would have added to that
escalation. In turn, the increase in anxiety and depression would have
increased her perception of pain and impairment and in that regard, I agree
with Dr. Pisesky who refers to her emotional problems contributing to the
presentation and her physical problems.
…
When
I met with Ms. Andrews, her emotional state had improved but she still
presented with some features of clinical depression. She had been taking the
antidepressant Cymbalta, presumably since it has a reputation, albeit
controversial, of assisting in the management of pain. She reports that her
mood was improving on the Cymbalta but she apparently developed a reaction to
it and discontinued it. As she describes it, she went into withdrawal and had
problems until about six or seven weeks ago when she again began to improve.
She reported being somewhat brighter and less irritable and was feeling more
hopeful. She was not at the time on antidepressant medication but I believe
that she should be, most likely the Wellbutrin that she had been taking over a
number of years. Prescriptions for Wellbutrin, Seroquel (Quetiapine) and Ativan
had all been renewed just prior to the accident. Her condition when I met with
her was probably as good, if not better, than her condition emotionally just
prior to the accident as reflected in the records of Dr. Zhang.
[107] In
cross-examination, Dr. Vallance agreed that the plaintiff was vulnerable
and fragile at the time of the accident and that her vulnerability and
fragility arose in part from her history of childhood neglect and abuse, her
pre-existing depression and anxiety and her personality type, which included a
compulsive nature and borderline personality traits, including emotionality,
fluctuations in mood and poor self-image. He also agreed that depression and
anxiety will increase a patient’s sense of pain.
[108] Dr. Vallance
noted that the plaintiff had a long history of fluctuating levels of anxiety
and depression and thought that Dr. Zhang’s clinical records for September
1 and September 15, 2009, which note depression, irritability, and the
plaintiff "losing her mind", suggested that her depression and
anxiety were escalating before the motor vehicle accident.
[109] Dr. Vallance
testified in cross-examination that the plaintiff had pulled herself up by her
boot straps after age 30. She had overcome her alcohol abuse and achieved
academic success in which she took justifiable pride. She experienced
considerable gain from her work, however her work had become central to her
sense of self. Dr. Vallance thought the plaintiff’s work as a counsellor
was particularly stressful for her. Because her work was so central to her
sense of identity and self-worth, she could not acknowledge her work as a
source of her stress. Dr. Vallance does not believe the plaintiff should
return to her former work as a counsellor to clients who are highly
traumatized. He does believe that with therapy Ms. Andrews could return
to work as a counsellor in some less stressful capacity.
[110] Dr. Vallance
agreed that the plaintiff’s background made her more vulnerable to
psychological dysfunction but thought she was already deteriorating before the
motor vehicle accident, which escalated her downward path.
[111]
In cross-examination, Dr. Vallance was unable to identify any
evidence that would prove that the plaintiff’s pre-accident downward path was
not simply part of her normal long-standing patterns of emotional ups and
downs. Dr. Vallance gave the following evidence:
Q Would you agree that in this case Brenda
Andrews perceived this car accident as being a terrifying event that nearly
cost her her life?
A That was her perception, but keeping in mind,
as he says, she does tend to catastrophize.
Q Dr. Vallance, you said a few minutes ago
that Brenda Andrews was on a downward path shortly before this accident. Have
you anything that would prove that that downward path wasn’t simply part of the
normal long-standing patterns of emotional ups and downs this woman had had for
years before this accident?
A Well, it certainly was one of these. When it would
have ended, I don’t know, because I don’t know what was triggering it at that
particular point in time. If it was something of great significance, then it
could have taken her right down to the depths, but I would need to know, for example,
if there was any counselling records at that time. That would be helpful, but I
— they’re not available to me.
Q So you’re saying that there may be some
records that would allow you to say that this downward path was leading to a
collapse, but you don’t have those records, so you can’t say that?
A That’s
correct.
[Transcript
of Proceedings, Lines 7 to 27 at p. 48, March 21, 2013]
[112] Dr. Vallance
also agreed in cross-examination that the accident would have added to or
escalated the plaintiff’s psychological difficulties; agreed that additional
traumas over time might increase a person’s vulnerability and fragility; agreed
that the effect of trauma is based on the person’s perception of the trauma;
and that Brenda Andrews perceived the motor vehicle accident as a terrifying
event that nearly cost her her life.
[113] In cross-examination,
Dr. Vallance further agreed that Ms. Andrews was dysfunctional after
the motor vehicle accident and acknowledged that her condition could have been
worse when Dr. O’Shaughnessy saw her than when he saw her.
[114] In
re-examination, Dr. Vallance said that in his opinion the plaintiff was in
no worse condition at the time he saw her than she was prior to the accident in
September 2009.
Dr. Andrew Travlos
[115] Dr. Andrew
Travlos is a specialist in physical medicine and rehabilitation who, at the
request of plaintiff’s counsel, performed an independent medical assessment of
the plaintiff on October 17, 2012.
[116] Dr. Travlos
took a detailed history from the plaintiff and reviewed her extensive clinical
records. He noted that Dr. Wayne Smith had made a diagnosis of fibromyalgia
dating back to 1992; that there were multiple entries relating to depression,
fatigue, stress and anxiety; and that Dr. Karim, one of the plaintiff’s
general practitioners, had noted the plaintiff was involved in a motor vehicle
accident in November 2005 after which she experienced right shoulder and arm
numbness that later resolved. The Seymour Medical Clinic records included
notes of visits for mood disorder in July 2007. In an entry of December 11,
2007, Dr. Zhang noted that the plaintiff’s complaints, which included
dizziness, fears about her health, and involuntary movements of her right foot
and left lower leg were unlikely due to physical causes and most likely due to
her anxiety. On September 15, 2009, Dr. Zhang noted that the plaintiff
was complaining of headaches, neck pains, shoulder pains and stress and a lack
of peer and family support in Vancouver. X-rays and a CT scan in the spring of
2008 showed moderate degenerative disc disease of the neck.
[117] Dr. Travlos
noted that the plaintiff’s history before the October 10, 2009 accident was
substantial, rather than simple, as she described. While the plaintiff was
functioning, active and employed before the accident, in Dr. Travlos’ opinion,
she was not the healthy person easily managing her life that she reported to
him. The clinical records revealed a person who was struggling with both pain
and ongoing mental health concerns. Dr. Travlos thought that the
plaintiff was "an individual at substantial risk of being de-railed by a
new event or injury such as this accident".
[118] Dr. Travlos
concluded that Ms. Andrews’ complaints of chest pain, difficulty
breathing, neck pains, right arm numbness and tingling, sleep problems and
anxiety were a direct consequence of the October 10, 2009 motor vehicle
accident. He thought the accident aggravated the plaintiff’s pre-existing
problem of arthritis in the neck which caused her symptoms of numbness and
tingling in the right arm. The two small fractures of the sternum were new
injuries caused by the accident.
[119] In Dr. Travlos’
opinion, the plaintiff’s ongoing mental health problems are the driving force
behind her slow recovery and low level of functioning, more than her physical
complaints. He describes the plaintiff’s overall reduced level of functioning
as "a complex interplay between her pre-accident physical and mental
health problems, along with the effects of the accident".
[120] Dr. Travlos
noted that it was possible that the plaintiff might have become dysfunctional
in the absence of the motor vehicle accident. However, she appeared to be
functioning relatively well, was independent, employed, exercising regularly
and had a healthy relationship with her current partner, Mr. Priolo. In Dr. Travlos’
opinion, the accident is the primary cause for the onset of the plaintiff’s
symptoms and the deterioration of her emotional and psychological health.
[121]
On causation, Dr. Travlos said this at pages 12 to 13 of his report
of October 17, 2012:
Exploring
the issue of causality more deeply, it is certainly possible that Ms. Andrews
may have become derailed and dysfunctional in the absence of this accident,
especially if she had had difficulties with her partner or social support
system. All in all, however, she appeared to be functioning relatively well
despite her difficulties and was independent, working and exercising regularly,
and had a healthy relationship with her partner. Of note is that she has not
lost her partner, despite the difficulties she has been through and her partner
has stuck with her, making it unlikely that the partner would have left if
things were even better than they had been since the accident. She would have
continued to work and it is clear that she had certainly established the
capacity to do so. There is no reasonable expectation that she would have
suddenly decompensated, barring any substantial new events. It is therefore my
opinion that, although Ms. Andrews was substantially at risk of
decompensation, there was no expectation that she was going to do so and would
certainly not have done so at the time that she did in the absence of this
accident. It is my opinion, therefore, that this accident was primarily
responsible for the onset of her symptoms and the substantial upheaval in her
emotional health and her current residual difficulties functioning in society.
[122] Dr. Travlos
explained that decompensation occurred when the plaintiff was functioning at a
level "and then everything sort of falls apart on her".
[123]
In cross-examination, Dr. Travlos was asked whether if the
plaintiff had stopped work 10 days before the accident that could have caused
her to decompensate:
Q So if she stopped work 10 days before the accident,
she’s also in a position where she has time to dwell on those same problems;
right?
MR. MAH: Perhaps, My Lord, Mr. Joudrey could
clarify the evidence with respect to "stopping work," as he puts it.
MR. JOUDREY:
Q She was not working as of 10 days before the accident.
A Because
Q That’s something for the court to decide,
ultimately. But the fact that she wasn’t working and staying occupied and so on
would give her time to dwell on whatever was troubling her and causing her to
lose her mind in September?
A I think the — if the stopping work was a
stressful course, that would certainly apply. If the stopping of work was just
part of the time between contracts — because she was doing contract work, my
understanding is. If it was just contract work, it wouldn’t necessarily have
been stressful unless there was no hope of her renewal of the contract. That
would have been stressful.
Q Well, let me put it to you hypothetically that
if — if — the only reason the plaintiff could think of for telling Dr. Zhang
that she was losing her mind the month before the accident was from emotional
stresses related to her counselling practice, from that point forward if she
stops working for any reason or if that is the reason she actually stopped
working —
A M’mm-hmm.
Q — you would expect her to continue to
decompensate when she’s got time on her hands and can dwell on it and
perseverate; right?
A She could have, yes.
Q And from what we see in the records she’s always
had the physical complaints, the underlying depression in varying degrees and
underlying anxiety disorder. September is the first time we see her saying that
she’s losing her mind; correct?
A Yes.
[Transcript
of Proceedings at Trial, March 18, 2013, p. 66 line 40 to p. 67 line 35]
[124] The
plaintiff terminated her contract with Health Canada about 10 days before the
motor vehicle accident. I accept Ms. Andrews’ testimony that before the
accident, she was considering her options for employment in Calgary, Vancouver,
or possibly Maryland, and that she did not intend to stop working altogether. Ms. Andrews
testified that when she terminated her contract with Health Canada, she
experienced anxiety about leaving her clientele in Port Hardy. She feared that
her clients would perceive her as abandoning them. She said this caused her anxiety
but denied that working with residential school survivors was a source of emotional
stress to her. Despite her history of pre-existing anxiety and bouts of
depression, the plaintiff had worked with and counselled residential school
survivors. She intended to continue to do so at the time of the accident.
[125] Dr. Travlos
provided a diagnosis for the plaintiff’s symptoms. He thought the accident
aggravated the plaintiff’s pre-existing degenerative condition of her neck,
causing the symptoms of numbness and tingling in her right shoulder, arm and
hand to reoccur. He attributed the plaintiff’s continuing symptoms of pain in
the neck and shoulders to myofascial pain and reported that her chest fractures
had healed and would be of no further concern to her. He thought some
underlying mechanical back pain contributed to the plaintiff’s lower body
symptoms on the right side of her lower back and right hip. Dr. Travlos
thought those symptoms were predominantly myofascial in origin.
[126] Dr. Travlos’
prognosis is that the plaintiff will probably continue to improve steadily for
the next one to two years, although the key to her improvement will be her response
to therapy for her mental health.
[127] Physically,
Dr. Travlos thought that the plaintiff needs to become more active. He
strongly recommended that Ms. Andrews stop exercising at home and start a
regular program of exercise at a community center or gym. Dr. Travlos
thought a more structured exercise environment would provide some incentive for
the plaintiff to complete her exercises. Dr. Travlos recommended that the
plaintiff’s exercise program include walking, cardiovascular exercise, yoga and
Pilates, and that over time, the plaintiff should work up to one and a half to
two hours of exercise per day, five days a week.
[128] Dr. Travlos
also recommended that Ms. Andrews establish progressive goals for her
recovery and thought that an occupational therapist could assist her in setting
goals and ensuring that they were met. He also recommended that the plaintiff
establish regular times of sleeping, and that she avoid sleeping during the day
to assist her in overcoming her problems with lack of sleep and fatigue. He
recommended that she continue to use Amitriptylin to assist her in sleeping.
[129]
Dr. Travlos expected that if the plaintiff acted on those
recommendations and made progress with her mental health, she should be able to
achieve daily social functioning. In the concluding paragraph of his
prognosis, Dr. Travlos said this:
…
She should be able to maintain her home, she should be able to exercise
regularly, and should, indeed, be able to go out shopping and to all the
physical things required of her. I defer to my colleagues in psychiatry
regarding the issues pertaining to her mental health recovery, as this will
certainly guide where she ultimately ends up. From a rehabilitation
perspective, she is physically capable of increasing her activities and there
is every expectation of her returning back to her pre-accident level of
symptoms and complaints, including her pre-accident level of physical activity.
[130] With
respect to the plaintiff’s vocational abilities and limitations, Dr. Travlos
felt that there was no physical bar to the plaintiff returning to counselling,
but recognized that her mental health was a limiting factor. Again, he
deferred to psychiatrists for their opinions regarding the effect of her mental
health on her vocation.
[131] If the
plaintiff’s mental health improved, Dr. Travlos thought the plaintiff
might be able to return to full-time, gainful employment, although he could not
provide a definitive opinion at the time of his report. He noted that the
plaintiff is a highly intelligent person who may need to make a decision about
whether or not she wishes to return to counselling and its associated
stresses. Alternatively, he thought she might seek employment in Human
Resources, a field in which she had already indicated some interest, and where
the emotional demands would be less.
CREDIBILITY AND RELIABILITY OF PLAINTIFF’S EVIDENCE
[132] The
factors to be considered when assessing credibility were summarized by Dillon
J. in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, 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.)
[Faryna]; 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).
[133] If the
plaintiff’s account of his or her change in physical, mental, and or emotional
state as a result of the accident is not convincing, then the hypothesis upon
which any expert opinions rest will be undermined: Samuel v. Chrysler Credit
Canada Ltd., 2007 BCCA 431, at paras. 15, 49-50.
[134] All of the
experts agree that this case involves a complex interplay between the plaintiff’s
psychological condition and her continuing complaints of pain. Ms. Andrews
had a fragile sense of her self-worth and suffered from varying levels of
anxiety and depression before the motor vehicle accident. The court’s task of
assessing damages for the injuries caused to the plaintiff by the accident is
challenging in any case where the plaintiff’s complaints are based largely on
subjective complaints of pain that have persisted beyond the normal time for
recovery.
[135] That task
is rendered more difficult in this case by two factors. First, as Dr. O’Shaughnessy
explained, Ms. Andrews has a tendency to catastrophize, and to focus on
the accident as the source of all of her physical and psychiatric complaints.
Her perception of events is coloured by her pre-existing personality trait
difficulties relating to her self-esteem, self-image, and mood regulation. As a
result, she is not a reliable historian of her pre-accident physical and
psychiatric condition.
[136] Second,
the plaintiff has relied entirely upon the medical opinions of various experts
retained to provide independent assessments of Ms. Andrews, in most cases,
years after the accident. The plaintiff has not called any of the general
practitioners, psychologists, or psychiatrists involved in the actual treatment
and care of Ms. Andrews, either before or after the motor vehicle
accident.
[137] The
plaintiff says that given the complexities of her case, general practitioners
lack the qualifications and expertise necessary to assist the court,
particularly regarding her psychiatric condition. I do not suggest that the
opinions of Dr. O’ Shaughnessy and Dr. Travlos have not assisted
the court. However, evidence from the general practitioners, and in particular
from Dr. Zhang would likely have helped the court in understanding the
evolution of the plaintiff’s mood and anxiety disorders before the accident.
Furthermore, evidence from Dr. Zhang might have shed light on the source
and severity of the plaintiff’s depression in September 2009.
[138] Nor did
the plaintiff call Dr. Tracy Good, the psychologist who had seen Ms. Andrews
off and on for 11 years. Dr. Good advised counsel that she had shredded
her records shortly before the trial. However, her testimony would likely have
assisted the court in determining when and to what extent the plaintiff
received therapeutic counselling for her own problems from Ms. Good,
rather than counselling supervision related to her employment.
[139] The
plaintiff bears the burden of proving her case on the balance of
probabilities. If, as a result of her failure to call any of the care
providers involved in her treatment she is undercompensated, she will have to
bear that consequence.
[140] The
defendants submit that Ms. Andrews was not only an unreliable witness, but
also lacks credibility. Despite the fact that cognitive testing of the
plaintiff one year post-accident showed that her delayed memory is at the 97th
percentile, Ms. Andrews professed to have no memory of telling her care
providers much of what they recorded in their clinical notes.
[141] At trial,
the plaintiff attributed her current complaints of pain, anxiety, and inability
to maintain emotional boundaries to the car accident. She testified that
immediately before the accident she was happy in her relationship with Mr. Priolo
and was considering a variety of career options. Ms. Andrews did
acknowledge that she was conflicted, and suffering some anxiety as a result of
her inability to continue to provide services to clients at Port Hardy, and one
elder in particular, following the termination of her contract with Health
Canada.
[142] The
defendants argue that the plaintiff’s recollection of her state of mind in the
weeks leading up the motor vehicle accident is difficult to reconcile with her
complaint to Dr. Zhang of September 1, 2009 that she was losing her mind,
and with the fact that at that time Dr. Zhang increased her dosage of the
anti-depressant Wellbutrin from 100 mg per day to 300 mg per day.
[143] During
cross-examination, Ms. Andrews agreed that on her examination for
discovery of March 19, 2013 she was asked and answered the following question:
Q And then September 1st, 2009, so
about a month before the accident it says:
"Losing
mind."
So that’s apparently your term.
Depressed,
irritable, angry, moments of despair, not cleaning rooms. No suicidal plans,
but sleeps. Doesn’t wake up.
Do you know what was causing all that just before the
accident?
A I
have no idea because — I have no idea because I was with Frank then and things
were pretty good.
[144]
At trial, Ms. Andrews testified that she did not recall her
conversation with Dr. Zhang. She gave the following evidence in
cross-examination:
Q You don’t recall telling Dr. Zhang that
you were losing your mind, depressed, irritable, angry, moments of despair, not
cleaning rooms? You don’t remember that?
A I believe that I told her that, but I don’t
remember saying that, no.
Q Okay. You don’t specifically remember the
conversation —
A No.
Q — but you do remember telling her that.
A No.
I believe that I told her that, but I don’t remember telling her that. Because
she wrote it down, I guess, and she quoted it, so
[Proceedings
at trial March 19, 2013, p. 67 line 42 to p. 68 line 6]
[145]
Questions and answers 623 to 627 from her examination for discovery
were then put to Ms. Andrews:
Q Okay. But obviously something was really
getting to you. Increasing Wellbutrin to 300 milligrams. That seems to be a
peak so far. That’s the biggest dosage and it’s just before the accident?
A A lot of times I took myself off of the
medication without the doctor’s guidance, so I don’t remember going — I don’t
remember going up that high, to be honest with you.
Q Okay. But if — so you’ve stopped taking your
medication?
A Um-hum.
Q And you started to feel low again. Wouldn’t
you just take the medication that you had before, the leftovers?
A You know what? I don’t — I don’t remember.
I don’t know if I threw them out or what.
Q But, in any event, the last time there seems
to have been a prescription, it was 100 milligrams and then it’s up to 300. Do
you recall anything about what was upsetting you just before the accident?
A I don’t know. The only thing I can think of
was a situation one of my clients was in was grave.
Q And it affected you a lot emotionally?
A Well,
that’s the only thing I can think of that was going on at the time.
[146] The
plaintiff confirmed she was asked those questions and that her answers were
true. She went on to explain in cross-examination that at the time she saw Dr. Zhang
in early September 2009 she was excited about her future with Mr. Priolo
and that the positives in her life outweighed the negatives.
[147]
She was then asked the following questions in cross-examination:
Q Okay. But despite all of the positives —
A M’mm-hmm.
Q — that should improve your mood, you were
depressed, irritable, angry, not cleaning rooms, tripled your medication. And
you’re saying that at that time the positive outweighed the negative?
A Yes, I’m saying the positive outweighed the
negative. And also I didn’t stay on that dosage of medication, and I don’t
remember telling her I couldn’t clean my rooms. I don’t remember that at all,
because I had been in preparation for leaving and every time I left I would
clean up.
Q And yet you —
A I believe I told — I believe that I told her
that during that time, but I don’t believe that it was something that impacted
me to the point that I wasn’t able to finish my job and I wasn’t able to
continue the plans that I was doing and I wasn’t able to continue looking
forward to the future and being happy. It didn’t impact me to that extent.
In fact,
throughout all my records that I haven’t seen till everything’s been splayed
out in front of my face, so many times I would say comments like that. And in
my recollection of my life I was just living my life and taking care of what I
needed to in privacy with my doctor and moving on, you know, and just leaving
it where I needed to leave it and move on. And that’s how I saw myself, and
that’s how I still see myself back then.
[148] When
defence counsel suggested to Ms. Andrews that before the accident she had
lost her boundaries and had started having emotional reactions to her clients’
problems, she vehemently denied that was the case. Ms. Andrews emphasized
that "this job was my purpose" and that she knew she was competent and
doing a good job. Ms. Andrews said that after the car accident she does
not have any boundaries. When asked by defence counsel why a car accident
would change her boundaries, the plaintiff became angry and distraught.
[149] Later in
her cross-examination, Ms. Andrews acknowledged that before the accident
when her contract with Health Canada was coming to an end she was already
struggling with depression and having difficulty keeping herself organized.
However, she was still productive, still with Mr. Priolo, and still
functioning. Ms. Andrews said that she did not remember ever being so
damaged that she could not function.
[150] Mr. Priolo
also testified that he was unaware of any circumstances that would have caused
the plaintiff to make her complaint of September 1, 2009 to Dr. Zhang that
she was "losing her mind".
[151] I find
that Ms. Andrews’ report to Dr. Zhang on September 1, 2009 that she
was "losing her mind" was more probable than not a manifestation of
her tendency to catastrophize. At that time, the plaintiff, as she
acknowledged at trial, was suffering from a significant bout of depression, and
anxiety related to her decision to cease counselling her clients at Port Hardy.
However, she continued to work for the next several weeks, until her contract
with Health Canada came to an end. Before the accident, the plaintiff and Mr. Priolo
were planning their future. Ms. Andrews was considering various
opportunities for employment, but intended to continue to work as a counsellor
to First Nations clients. I find that before the accident the plaintiff was
struggling with depression and anxiety, but was still functioning in her work
and social life.
[152]
Much of the history provided by the plaintiff to Drs. O’Shaughnessy,
Travlos and Vallance was inconsistent with the clinical records. Dr. Travlos
remarked on the plaintiff’s tendency to under-report her physical difficulties
before the accident.
[153] As defence
counsel noted in his written submissions, the clinical records contained in
Exhibit 19 show Ms. Andrews made the following statements to her care
providers before the October 10, 2009 motor vehicle accident:
(a) she had been in a previous automobile
accident in 1977 when she was broad-sided and suffered a neck injury;
(b) on June 29, 2004, she cancelled an appointment
with a dermatologist as a result of a car accident;
(c) on November 14, 2005, she was involved in a
motor vehicle accident where she was a passenger in a vehicle that was
rear-ended. She reported right shoulder pain. Her physician diagnosed musculoligamentous
sprain to the cervical spine and right shoulder.
(d) she took stress leave from her employment in
March 2006;
(e) on July 4, 2006 she reported to Dr. Charles
Campbell, a chiropractor, that her major complaints were fibromyalgia dating
back to 1992 and lower back pain and numbness since a fall on July 1, 2006. Ms. Andrews
also reported that she had previously suffered from dizziness, nausea, loss of
sleep, depression and PTSD;
(f) on November 24, 2006, Ms. Andrews
reported extreme stress at work, and that she was seeing a counsellor. She
denied being depressed, but was prescribed Effexor, an anti-depressant;
(g) in December 2006, the plaintiff reported she
was still depressed. At that time she was on Wellbutrin 100 mg per day.
(h) On May 29, 2008, Ms. Andrews provided a
history to Dr. Christine Chapman that included a long history of low back
pain, neck pain and depression. She reported she was in a lot of pain, and was
concerned that her symptoms at that time would lead her to be in a wheelchair.
Despite her complaints, a neurological examination on that date was entirely
normal.
(i) On
November 17, 2008, the plaintiff reported to Dr. Solomons that she had
previously suffered from fibromyalgia and osteoarthritis and was currently on
Wellbutrin, Ativan, Seroquel and Emtec 30 as needed. The plaintiff also
reported that there had been times when she was so easily distracted by things
around her that she had trouble concentrating or staying on track. The
plaintiff told Dr. Solomons that she had been diagnosed with PTSD and had
a previous history of childhood abuse, neglect and abandonment.
[154] Immediately
following the accident, Ms. Andrews reported to the emergency department
at VGH that she had not suffered a head injury, was able to get out of the car
without assistance, and reported no neck pain, no loss of consciousness,
dizziness or vision change. She complained of pressure/ache in her chest and
right shoulder, and chest pain. The plaintiff reported a previous history of
neck arthritis and anxiety and that she was taking Wellbutrin and Seroquel at
the time of the accident.
[155] At trial,
the plaintiff either denied or did not recall making many of the statements
contained in the clinical records. She denied telling any of her care providers
that she had been diagnosed for PTSD. When confronted with Dr. Solomons’
record of December 4, 2008 that "Ms. Andrews says she has been
diagnosed with post-traumatic stress disorder", the plaintiff denied
telling him that. Her suggestion that she may have been discussing her mother’s
diagnosis is not plausible. She also suggested that her fibromyalgia was
actually osteoarthritis. Dr. Travlos gave evidence that fibromyalgia is
only diagnosed when a person has generalized pain in all four quadrants of her
body, rather than pain confined to the neck. Again, the plaintiff’s suggestion
that physicians who treated her before the accident may have confused her
complaints of the pain induced by her arthritis of the neck with fibromyalgia
is implausible.
[156] Ms. Andrews
did not remember taking medication for depression or anxiety at the time of the
accident, although the medical records showed that she had been prescribed
Wellbutrin in varying doses, Ativan and Seroquel from 2007 onward.
[157] Ms. Andrews
also gave evidence that she had no recollection of the November 17, 2005
automobile accident, going to the doctor, or seeking treatment for that event.
[158] When Ms. Andrews
completed the Mood Disorder Clinic questionnaire for Dr. Solomons on
November 17, 2008, she reported that she had received psychological treatment
for mood disorders from Dr. Tracy Good and that those treatments started
in 1997 and continued periodically. She was unable to explain why she had not
also included Ms. Susan Rungstra, the psychologist she had been seeing
since August 2008.
[159] At
Question 292 of her examination for discovery, when asked whether she or her
dog had been attacked when out for a walk since the accident, the plaintiff
answered that she did not think so. At trial, Ms. Andrews testified that
at her discovery she did not remember that Dixie had been attacked by the two
German Shepherds in May 2010. Ms. Andrews also gave evidence that she did
not remember writing her e-mail on August 16, 2011 to Tony Grant, her
occupational therapist, Dr. Jung, and her counsel, which contained a
detailed account of the May 2010 attack and her subsequent and frightening
encounter with the owner of the German Shepherds. Ms. Andrews testified
that she had also forgotten about that incident at her examination for
discovery. This was a traumatic event which the plaintiff regarded as
sufficiently serious to report to the police. The plaintiff had been
confronted by an aggressive woman who threatened to kill her dog and to do her
harm.
[160] Dr. Kay’s
findings regarding the plaintiff’s superior memory are inconsistent with the
plaintiff’s professed inability to recall her encounters with the German
Shepherds and their owner.
[161] It is
simply not consistent with the probabilities of the situation that the
plaintiff would forget about two frightening encounters with the owner of the
German Shepherds. I find that the plaintiff’s evidence that she did not
remember these incidents is not credible.
[162] While I
have rejected the plaintiff’s evidence that she forgot about these significant
traumatic events, I do accept that since the accident Ms. Andrews has from
time to time experienced temporary disruptions of her concentration, or train
of thought. Mr. Priolo has described his observations of the plaintiff
losing track of a conversation in mid-sentence. During both her direct and
cross-examination, there were occasions when the plaintiff asked counsel to
remind her of the question put to her midway through her answer. In light of
the results of Dr. Kay’s neuropsychological testing, Dr. O’Shaughnessy’s
opinion of the impact of anxiety and depression on the plaintiff’s functioning,
and Dr. Vallance’s opinion that any forgetfulness the plaintiff noticed
was likely due to the distraction of pain, lack of sleep, the effects of
medication, or her ongoing anxiety and depression, I find those temporary
disruptions of the plaintiff’s memory or ability to focus are more likely
caused by her pain disorder, anxiety, depression and disrupted sleep, rather
than by any permanent impairment of her cognitive abilities.
[163] Ms. Andrews
was also cross-examined on various entries from the clinical records of Turning
Point Rehabilitation Consultants Ltd. which suggested that she was improving
between May 2010 and January 2011. On May 13, 2010, Turning Point noted that Ms. Andrews
completed a resume and was working on a covering letter. The plaintiff denied
that she ever sent these materials to prospective employers.
[164] The entry
in the Turning Point records for May 13, 2010 also recorded that the plaintiff
was walking daily for about two to three hours with her dog. Ms. Andrews
denied this and said she had only walked her dog for two to three hours prior
to the October 10, 2009 accident.
[165] Ms. Andrews
also reported in May 2010 that she would continue to exercise (swim and bike)
while away from Vancouver. The plaintiff denied telling anyone that she was
swimming, said that she had not done so for the last three and a half years.
She testified that she only started biking while working with her current
kinesiologist. Ms. Andrews initially denied that she went on a holiday
in May 2010 but later acknowledged that she may have been travelling to Arizona
to meet Mr. Priolo at that time.
[166] On
December 3, 2010, Turning Point noted that the plaintiff had redone her resume
and was applying for jobs, and that she was cleaning her own apartment at that
time. Ms. Andrews testified that she did not recall these events and did
not believe she had applied for any jobs at that time. She recalled feeling
better in December 2010 but said that when she cleaned her own apartment, she
was only cleaning two rooms.
[167] The Turning
Point note for January 21, 2011 recorded that the plaintiff’s right back and
hip pain were clearing up quite nicely. When asked in cross-examination
whether her back and hip pain was clearing up "quite nicely" as of
January 21, 2011, Ms. Andrews answered "Yes, I guess. That’s what it
says."
[168] Ms. Andrews
was unable to explain why her care providers would record information regarding
her progress if it did not occur.
[169] I have
found that some portions of Ms. Andrews’ testimony lack credibility.
However, for the most part, the many discrepancies between the plaintiff’s
evidence regarding her medical history and the medical records raise issues of
reliability rather than credibility. The plaintiff’s underlying personality
disorder, as described by Dr. O’Shaughnessy, leads her to perceive the
motor vehicle accident as the sole source of her continuing complaints, to view
her condition as more dire than it is, and to focus on the motor vehicle
accident to the exclusion of her pre-accident condition.
[170] Drs. O’Shaughnessy
and Travlos both testified that the plaintiff’s perception of her condition is
distorted. I find that the plaintiff’s testimony regarding her prior medical
history is unreliable, and where there are discrepancies between Ms. Andrews’
evidence about her medical history prior to the motor vehicle accident and the
medical records, I prefer the clinical record to the plaintiff’s testimony.
[171] Dr. O’Shaughnessy
agreed that the event of May 2010, when the plaintiff and her dog were attacked
by two off-leash German Shepherds, and the plaintiff’s subsequent encounter
with the abusive owner of the German Shepherds in August 2011, were events that
traumatized the plaintiff. Ms. Andrews did not disclose either of these
events, or tell Dr. O’Shaughnessy about witnessing a sexual assault in
July 2012. Dr. O’Shaughnessy said that seeing the sexual assault would be
distressing for anyone, but would have a greater impact on an emotionally
vulnerable person such as the plaintiff.
[172] The
plaintiff did not tell Dr. Travlos about her previous motor vehicle
accidents or about past stress at work. She described herself as healthy
before the motor vehicle accident. As Dr. Travlos observed, the plaintiff’s
subjective recollection did not correspond with the clinical records.
[173] Drs. O’Shaughnessy
and Travlos both recognized that Ms. Andrews had a more complex and
difficult pre-accident medical history than she reported. Where there were
discrepancies between the clinical records and the history Ms. Andrews
provided to them, they relied on the clinical record. Accordingly, despite
the fact that Ms. Andrews was not a reliable historian, the expert
opinions of Drs. O’Shaughnessy and Travlos are still worthy of significant
weight in determining the cause of the plaintiff’s injuries.
Adverse Inference from
Plaintiff’s Failure to call Treating Physicians and Psychologists
[174]
The defendants invite the court to draw an adverse inference from the
plaintiff’s failure to call any of the health care providers who treated
her either before or after the accident. The defendants submit that the court
should draw the inference that if the plaintiff’s treating health care
providers had been called their testimony would not have supported the
plaintiff’s evidence respecting the minimal impact of her pre-existing
conditions and would not have supported the plaintiff’s theory that all of her
post-accident symptoms and functional impairments result from the motor vehicle
accident. The defence submits there is a compelling case for drawing that
inference when none of the persons most familiar with the plaintiff’s
pre-accident mental health were called, including the psychologists Tracy Good
and Susan Rungstra, and the psychiatrist Dr. Solomons, and where the
plaintiff also failed to call any of the psychologists who have treated the
plaintiff since the motor vehicle accident.
[175] Generally,
an adverse interest cannot be fairly drawn except from the failure to call
witnesses whose testimony would be superior to the evidence already adduced in
respect of the fact to be proved: Buksh v. Miles, 2008 BCCA 318 at para. 30.
[176]
In Buksh at para. 35, the Court of Appeal identified the
following factors for consideration on the question of whether the trier of
fact can reasonably draw an inference that the witness not called by a party
would have given evidence detrimental to that party’s case:
(a) the evidence before
the court;
(b) the explanations offered for not calling the
witness;
(c) the nature of the evidence that could be
provided by the witness;
(d) the extent of disclosure of the physicians’
clinical notes; and
(e) the
circumstances of the trial, for example, an initial agreement to introduce
clinical records that works contrary to the inference, or incorporation of the
witness’ views or observations in the report of a witness called by the other
side.
[177] In Willing
v. Ayles, 2009 BCSC 1035, the plaintiff failed to call the general practitioner
who had assessed her shortly after the collision and followed the progress of
her recovery for the first year following the accident. The plaintiff relied
on medical evidence from a family doctor who treated her approximately two
years after the accident, and provided no explanation for the failure to call
the physician who had first treated her.
[178] In Willing,
at para. 178, Mr. Justice Parrett drew an adverse inference that the
evidence of the general practitioner who had initially treated the plaintiff
would not have supported her claim of making a complete recovery from
pre-existing conditions before the accident. Parrett J observed the absence of
evidence from the general practitioner left the court without any evidence from
her doctor concerning the extent of her recovery at the time of that accident.
[179] Here, the
evidence before the Court includes the plaintiff’s often unreliable history of
largely subjective complaints, and the reports of specialists retained to
examine the plaintiff for the purposes of this litigation. The experts who
examined the plaintiff did so between one and three years following the motor
vehicle accident. The Court has no expert evidence from any family physician
who assessed the plaintiff either before or after the accident. The physiatrist,
Dr. Travlos, did not see the plaintiff until three years after the
accident. The only explanation offered by counsel for the plaintiff for the
failure to call Dr. Zhang, or any general practitioner who has treated the
plaintiff since the accident, is the assertion that general practitioners lack
the expertise required to provide medical evidence in this case. I have
already noted that evidence from Dr. Zhang would likely have aided the
Court in understanding Ms. Andrews’ psychological state before the
accident. Dr. Zhang’s clinical records were disclosed. Her notes of the
plaintiff’s history and her observations of Ms. Andrews’ condition are
discussed in the reports of Dr. Travlos and Dr. O’Shaughnessy. However
the Court is left with no medical opinion on the progress of the plaintiff’s
recovery from her physical injuries until three years post-accident.
[180] In
addition to not calling any of the general practitioners who treated Ms. Andrews
before the accident of October 10, 2009, the plaintiff has not called as
witnesses any of the psychologists who might have provided evidence concerning
the treatment and evolution of the plaintiff’s pre-accident mental health, or
the progress of her treatment following the accident. None of the clinical
records of the plaintiff’s pre-accident treating psychologists, Dr. Tracy
Good and Ms. Susan Rungstra have been produced. Aside from advising the
Court that Dr. Good had destroyed her notes, the plaintiff has provided no
explanation for her failure to call any of her treating psychologists, or Dr. Solomons.
The clinical notes of Dr. Chuck Jung, the psychologist who treated Ms. Andrews
between June 2010 and April 2012 have been produced. Dr. Jung’s notes
provide a terse summary of what the plaintiff told him from time to time
regarding her pain, anxiety and mood. However, while both Dr. Jung and Dr. MacKinnon
were well positioned to provide assessments of the plaintiff’s post-accident
mental health and the progress of her treatment since the accident, the Court
is left without the benefit of either of their opinions on Ms. Andrews’
progress. In these circumstances, the requirements for drawing an adverse
inference are met. The inference is that if the plaintiff had called her
treating healthcare practitioners, their evidence would not have supported the
attribution of all of her post-accident physical and psychological symptoms to
the accident.
CAUSATION
The Law
[181]
The
basic test for determining causation is the "but for" test. The
plaintiff bears the burden of establishing that "but for" the
negligent act or omission of the defendant, the injury would not have occurred:
Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333 at paras. 21.
[182]
As
the Court observed in Resurfice at para. 23:
[23]
The "but for" test recognizes that compensation for negligent conduct
should only be made "where a substantial connection between the injury and
the defendant’s conduct" is present. It ensures that a defendant will not
be held liable for the plaintiff’s injuries where they "may very well be
due to factors unconnected to the defendant and not the fault of anyone": Snell
v. Farrell, at p. 327, per Sopinka J.
[183] The "but
for" test must be proved on a balance of probabilities, rather than with
scientific precision: Athey v. Leonati, [1996] 3 S.C.R. 458, at paras. 13,
16.
[184]
It
is not necessary for the plaintiff to establish that the defendant’s negligence
is the sole cause of the injury. As long as the defendant is part of the cause
of the injury, the defendant is liable, even if his or her act alone was not
enough to create the injury: Athey v. Leonati, at para. 17.
[185]
Causation must be established on a balance of probabilities before
damages are assessed. As McLachlin, C.J.C. stated in Blackwater v. Plint,
2005 SCC 58 at para. 78:
It is important to distinguish
between causation as the source of the loss and the rules of damage assessment
in tort. The rules of causation consider generally whether "but for"
the defendant’s acts, the plaintiff’s damages would have been incurred on a
balance of probabilities. Even though there may be several tortious and
non-tortious causes of injury, so long as the defendant’s act is a cause of the
plaintiff’s 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
.
[186] The most
basic principle of tort law is that the plaintiff must be placed in the
position he or she would have been if not for the defendant’s negligence, no
better or worse. Tortfeasors must take their victims as they find them, even
if the plaintiff’s injuries are more severe than they would be for a normal
person (the thin skull rule). However, the defendant need not compensate the
plaintiff for any debilitating effects of a pre-existing condition which the
plaintiff would have experienced anyway (the crumbling skull rule): Athey v.
Leonati, at paras. 32-35.
[187]
At
para. 23, the Court in Athey v. Leonati explained that apportionment
between tortious and non-tortious causes is contrary to the principles of tort
law because the defendant would escape full liability even though he or she
caused or contributed to the plaintiff’s entire injuries. The plaintiff would
not be adequately compensated because he or she would not be placed in the same
position that he or she would have been in absent the defendant’s negligence.
The Court held that where there is a single indivisible injury, any defendant
found to have negligently caused or contributed to the injury will be fully
liable for it: at para. 25.
[188]
However,
where the injuries are distinct and divisible, separation is permitted, in
recognition of the principle that a defendant is only liable for the injury
that he or she has caused. In Athey, at para. 24, the court held:
The respondents are correct that
separation is also permitted where some of the injuries have tortious causes
and some of the injuries have non-tortious causes: Fleming, supra,
at p. 202. Again, such cases merely recognize that the defendant is not
liable for injuries which were not caused by his or her negligence.
[189] In
determining causation, I also bear in mind that caution is required before
drawing any inference that because one event follows another in time, the first
event is the cause of the second: White v. Stonestreet, 2006 BCSC 801 at
paras. 70-74.
Discussion
[190] With
respect to physical injuries, the parties agree that the plaintiff suffered two
small fractures to her sternum as a result of the accident. In addition, I
accept Dr. Travlos’ opinion and find that Ms. Andrews suffered an exacerbation
of the pain in her neck and pain and numbness in her right arm associated with
her pre-existing degenerative arthritis of the neck. As a result of the
accident, the plaintiff also suffered soft tissue injuries to her right
shoulder, upper back, low back and right hip. Ms. Andrews had a history of
right shoulder, low back and right hip pain. The accident exacerbated those
symptoms.
[191] Dr. Travlos
reported in October 2012 that the plaintiff’s chest fractures had healed. I
find that Ms. Andrews had substantially recovered from that injury by
February 2010, the end of its acute phase.
[192] Ms. Andrews
acknowledged that by January 21, 2011, some 15 months after the accident, her
right back and right hip pain were clearing up "quite nicely". At
trial, the plaintiff said that her right hip troubled her intermittently but
she was learning to manage it. Ms. Andrews gave evidence that she
continued to experience neck pain, shoulder pain, upper and lower back pain and
pain in her right hip but estimated that she had made a 75% recovery from the
accident. Her complaint of right arm numbness had returned to its pre-accident
level.
[193] Taking
into account the plaintiff’s heightened perception of impairment, and her
tendency to downplay her pre-accident symptoms, I find that by late January
2011, Ms. Andrews had substantially recovered from the physical injuries
caused by the motor vehicle accident, and that by the time of trial, with
respect to her physical injuries, she had returned to her original position.
[194] Prior to
the accident, the plaintiff experienced fluctuating levels of anxiety and
depression triggered by stress that was often related to difficulties in her
relationships. She had a tendency to catastrophize, and her perception of
events were coloured by her underlying personality trait difficulties relating
to her self-esteem, self-image and mood regulation. As Dr. O’Shaughnessy
observed, the plaintiff sees the world differently than others would
objectively view it. Her pre-existing anxiety disorder and dysthymia rendered
her vulnerable to traumatic events. The motor vehicle accident of October 10,
2009 was such an event. At the time, the plaintiff perceived the accident as
life-threatening.
[195] Despite
her vulnerability, before the accident, the plaintiff was able to function
socially, and coped, albeit with some difficulty, with the demands of her work
until her contract with Health Canada came to an end on September 26, 2009. Her
decision to terminate her services at Port Hardy was a source of anxiety, but
she was still functioning. Her relationship with Mr. Priolo was positive,
and she was exploring options for continuing her career as a counsellor to First
Nations clients. Drs. O’Shaughnessy and Vallance agree that her depression and
anxiety disorders were much worse after than before the accident. The
plaintiff suffered more catastrophic thoughts and mood disruptions. After the
accident, Ms. Andrews became dysfunctional. While she was able to cope
with the demands and stresses of her work as a counsellor to residential school
survivors before the accident, she was unable to maintain the emotional
boundaries essential for that work after the accident. After the accident she
was disinterested in caring for herself, and had difficulty with her social
functioning. She confined her social contacts to Mr. Priolo, and an old
friend, Ian Liang, who visited her once a week.
[196] Dr. Vallance
thought that Ms. Andrews had already begun her downward spiral into
dysfunction by September 1, 2009 when she reported to Dr. Zhang that she
was "losing her mind". However, in cross-examination, he acknowledged
that there was nothing he could identify to show that the escalation of the
plaintiff’s depression and anxiety in the weeks before the accident was any
different from her longstanding pattern of waxing and waning depression and
anxiety.
[197] All of the
experts agreed that Ms. Andrews’ pre-existing mood and anxiety disorders
made her more vulnerable to decompensation, and that the accident, as a
traumatic event, would have exacerbated the plaintiff’s pre-existing
psychological condition.
[198] I find
that but for the motor vehicle accident, Ms. Andrews would not, on a
balance of probabilities, have suffered the serious exacerbation of her anxiety
disorder and dysthymia that she experienced in the fall of 2009. The plaintiff
has met the test of establishing that the defendant’s negligence was a "cause
in fact" of the exacerbation of the plaintiff’s anxiety and mood disorders
and of the onset of her pain disorder: Yoshikawa v. Yu (1996), 21
B.C.L.R. (3d) 318 at para. 15 (C.A.). I am also satisfied that the motor
vehicle accident was a proximate cause of those psychological injuries.
Referring to the factors discussed in Yoshikawa at para. 12, sub-paras. 3,
4, 5 and 6, this is not a case where Ms. Andrews could be expected to
overcome her psychological problem through "will power" or where the
psychological problems continue because the plaintiff "does not wish them
to end". I accept the plaintiff’s testimony that she wants to return to
her pre-accident level of functioning. Ms. Andrews has previously
demonstrated resilience and determination in overcoming years of alcohol
abuse. Dr. O’Shaughnessy, whose opinion I accept on this point, has
emphasized that the plaintiff requires both psychotherapy and medication in
order to manage her anxiety, depression and pain disorder and to assist her in
improving her functioning. Although I have found some portions of Ms. Andrews’
testimony are not credible, on the whole of the evidence I am satisfied that
the plaintiff suffered an exacerbation of her anxiety and depression; that the
onset of the pain disorder was caused by the accident; and that the plaintiff’s
psychological problems do not arise from a desire on her part for care,
sympathy or compensation.
[199] Ms. Andrews
had complained of pain prior to the motor vehicle accident. However, she had
not previously developed the heightened perception of impairment that she
experienced following the accident, nor had her sense of pain rendered her
dysfunctional. I find that there is a substantial connection between the motor
vehicle accident and the plaintiff’s pain disorder and that but for the motor
vehicle accident, Ms. Andrews would not have experienced the onset of her
pain disorder when she did. As a result of the motor vehicle accident, the
plaintiff’s anxiety disorder interacted with her pain causing the pain disorder
which has left her with an elevated perception of impairment that was not
present before the motor vehicle accident.
[200] However, I
am not satisfied that the accident caused all of the plaintiff’s ongoing
psychological symptoms. Both Dr. O’Shaughnessy and Dr. Travlos viewed
the plaintiff’s reduced level of functioning after the motor vehicle accident
as involving a complex interaction between her pre-accident physical and mental
health problems and the effects of the accident. The plaintiff’s pre-existing
personality disorder and her anxiety and mood disorders continue to affect her.
[201] Given the
longstanding pre-existing pattern of waxing and waning depression and anxiety,
I find that it is likely that even in the absence of the accident, Ms. Andrews
would have suffered recurrent bouts of elevated depression or anxiety.
[202] I also
find that each of the events of May 2010, when Ms. Andrews and her dog
were attacked by the two German Shepherds; August 2011, when Ms. Andrews
had a frightening encounter with the owner of those dogs; and July 2012, when Ms. Andrews
witnessed a sexual assault, were traumatic incidents which have contributed to
the plaintiff’s ongoing anxiety disorder.
[203] Doing the
best that I can with all of the available evidence, I find that 50% of the
plaintiff’s present symptoms are attributable to the accident, 40% are
attributable to the plaintiff’s pre-existing mood and anxiety disorders and 10%
to subsequent intervening events which include the plaintiff’s two frightening
encounters with the German Shepherds and their owner, and her witnessing of the
sexual assault.
MITIGATION
[204] The
defendants submit that Ms. Andrews’ damages should be reduced for failing
to mitigate. Specifically, the defendants contend that the plaintiff acted
unreasonably by not attending for psychological counselling before June, 2010,
and by failing to follow the recommendations of medical professionals that she
make efforts to sleep at regular times. In addition, the defendants argue that
although the plaintiff initially complied with the recommendations of her
treating professionals, between May 2010 and mid-2012 she frequently missed or
cancelled therapies, was at times uncooperative with her therapists and failed
to follow recommended exercise regimes. Later in 2012, Ms. Andrews
attended regularly, consistently cooperated with her therapists and reported
some improvement in her symptoms.
[205]
In Chiu v. Chiu, 2002 BCCA 618 at para. 57, Low J.A. stated:
The onus is on the defendant to
prove that the plaintiff could have avoided all or a portion of his loss. In a
personal injury case in which the plaintiff has not pursued a course of medical
treatment recommended to him by doctors, the defendant must prove two things:
(1) that the plaintiff acted unreasonably in eschewing the recommended
treatment, and (2) the extent, if any, to which the plaintiff’s damages would
have been reduced had he acted reasonably. These principles are found in Janiak
v. Ippolito, [1985] 1 S.C.R. 146.
[206] All of the
medical experts agree that the treatment of Ms. Andrews’ psychological
conditions is the key to her recovery. The defendants point out that
Ms. Andrews did not begin to receive psychological counselling until June
2010. Ms. Andrews was referred, through Turning Point, to Dr. Jung.
Her evidence, which was not contradicted cross-examination, was that she had
asked to see Susan Rungstra, but was told that she should see a psychologist
who specialized in motor vehicle trauma. She went to see Dr. Jung in June
2010 when arrangements were made for her to do so. I find there was no delay
on the plaintiff’s part in obtaining psychological counselling.
[207] Between
June 25, 2010, when Ms. Andrews had her first appointment with Chuck Jung
Associates and July 5, 2012, the plaintiff had 53 scheduled appointments with
Dr. Jung or his associates. She cancelled or failed to attend only two of
those appointments. Ms. Andrews began to see Dr. MacKinnon in July
2012 and continued to receive therapy from her to the time of trial. During
that time, Ms. Andrews occasionally missed appointments, had no appointments
in August 2012, but otherwise attended for psychological counselling between
three and four times per month. The defendants, who bear the onus of proof,
have not shown that the plaintiff unreasonably refused or declined recommended
treatment for her psychological condition, or that the few appointments that
she did miss delayed her recovery.
[208] The
plaintiff has not followed the recommendations of her care providers and
Dr. Travlos that she establish regular hours of sleep. At p. 15 of
his report, Dr. Travlos stated that Ms. Andrews "has to stop
sleeping in the day at all costs". He thought it was essential for the
plaintiff establish a regular sleep pattern in order to reduce her fatigue and
improve her functioning. The plaintiff has not shown that her psychological
condition has prevented her from following the recommendations of all of her
care providers, and Dr. Travlos that she establish a regular sleep
pattern.
[209] There were
periods of time between June 2010 and mid-2012 when the plaintiff, with some
frequency, either cancelled or failed to attend for her physical and
occupational therapy appointments. Ms. Andrews has reported some
improvement since mid-2012 when she resumed regular attendance for her
therapies. I find that Ms. Andrews failure follow her care providers’
recommendations concerning sleep and her failure to attend for scheduled
therapies other than psychotherapy has delayed her recovery. I find that had
the plaintiff followed these recommendations, there would have been some earlier
improvement in the plaintiffs functioning. In this case, a reduction of 10%
in the award of non-pecuniary damages for the plaintiffs failure to mitigate
is appropriate.
DAMAGES
Non-Pecuniary Damages
Facts
[210] In the
previous section of these reasons I have set out my findings concerning the
physical and psychological injuries suffered by the plaintiff as a result of
the accident.
[211] With
respect to her social life since the accident, the plaintiff continues to see
Ian Laing, an old friend and former co-worker, once or twice a week but has
lost touch with many of her friends. She no longer entertains, describes her
house as a mess, and says she avoids other people in order to reduce the
likelihood of getting into arguments with them. Aside from attempting golf a
couple of times with Mr. Priolo, she has not played any sports. She no
longer has any interest in arts and crafts, and no longer makes jewellery or
sketches. When Mr. Priolo is not in Vancouver, she spends most of her
time alone.
[212] Ms. Andrews
testified that there has been some improvement in her psychological condition.
Her irrational fears of death have diminished somewhat, although she continues
to experience fear of her family or Mr. Priolo dying. The plaintiff
complains of a loss of emotional boundaries, panic attacks, and outbursts of
anger directed at persons she encounters on the street or in stores. The
plaintiff testified that she dislikes being touched, and no longer has intimate
relations with Mr. Priolo. She still loses her train of thought from
time to time, which is a source of frustration and anger.
[213] With
respect to recreational activities, before the motor vehicle accident, Mr. Priolo
said Ms. Andrews enjoyed long walks, travel, movies, hiking, cooking,
running and playing golf. The plaintiff and Mr. Priolo dined out
frequently, worked out at the gym together and competed with each other in
completing crossword puzzles.
[214] Mr. Priolo
testified that they no longer dine out as often, they rent movies and go for
shorter walks. The plaintiff avoids crowds and no longer enjoys attending
sporting events. She has not completed a full game of golf since the accident.
[215] Mr. Priolo
described the plaintiff before the accident as loving and intelligent, a person
with a lot of patience and someone who was very confident in her abilities and
enjoyed her work. Since the accident, she loses her train of thought, gets
frustrated, has become withdrawn, and on occasion curses at people on the
street or in stores. Her personal hygiene has suffered and where she formerly
kept a tidy apartment, she no longer does so. She continues to suffer from
nightmares.
[216] Mr. Priolo
says that since the accident the plaintiff has been a very nervous and anxious
driver, although this has improved with the passage of time.
[217] Overall,
my impression was that Mr. Priolo was a forthright witness; he did not
exaggerate the plaintiff’s injuries, or her pre-accident abilities, attributes
and personality. However, Ms. Andrews appears to have kept to herself her
pre-accident bouts of depression and any treatment she was receiving for them.
[218] Mr. Ian
Laing is a 58-year-old restaurant employee who has known the plaintiff since
1985, when she was working as a waitress. They became good friends, went for
walks together, and to the movies and restaurants. Mr. Laing continues to
see the plaintiff about once or twice a week when he visits her at her home. He
testified that before the motor vehicle accident, Ms. Andrews’ home was
neat, clean and well organized, and now is cluttered. He described the
plaintiff as energetic and upbeat before the collision. Since the accident, Mr. Laing
has observed changes in the plaintiff. She is lethargic, rather than active,
cries for no apparent reason, has sudden changes in mood, has become
short-tempered, swears a lot, is impatient, and no longer pays much attention
to her grooming. Mr. Laing also described the plaintiff losing her train
of thought in mid conversation. When they walk, it is only to take the dog
out. They no longer attend movies, or play board games.
[219] Ms. Doreen
Antifaev has known the plaintiff since she was first a student at Langara
College, and later, a First Nations student counsellor at Vancouver Community
College. Ms. Antifaev described the plaintiff before the motor vehicle
accident as friendly, outgoing, always ready to help others, and someone with a
great sense of humour. She has seen the plaintiff since the motor vehicle
accident about once every four months. Ms. Antifaev testified that the
plaintiff cries frequently, lacks concentration, is angry much of the time,
does not seem to care much about her appearance, and does not want to be around
people very much. She has not observed any improvement in the plaintiff since
the accident. I found Ms. Antifaev to be a forthright and disinterested witness
who presented her evidence without embellishment.
Law
[220] Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of
enjoyment of life, and loss of amenities. The compensation awarded should be
fair to all parties, and fairness is measured against awards made in comparable
cases. Such cases, though helpful, serve only as a rough
guide. Each case depends on its own unique facts: Trites v.
Penner, 2010 BCSC 882 at paras. 188-189.
[221] In
Stapley v. Hejslet, 2006 BCCA 34 at para. 46, the Court of Appeal
identified a non-exhaustive list of the factors to be considered when assessing
non-pecuniary damages. They include the age of the plaintiff; the nature of the
injury; severity and duration of the pain; disability; emotional suffering;
loss or impairment of life; impairment of family, marital and social
relationships; impairment of physical and mental abilities; and loss of
lifestyle. Generally, stoicism should not penalize a plaintiff.
[222] The
assessment of non-pecuniary damages is necessarily influenced by the individual
plaintiff’s personal experiences in dealing with her injuries and their
consequences, and the plaintiff’s ability to articulate that experience: Dilello
v. Montgomery, 2005 BCCA 56 at para. 25.
[223] The
correct approach to assessing injuries which depend on subjective reports of
pain, and which have persisted beyond the normal period for recovery was
discussed in Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), by
McEachern C.J. (as he then was). In referring to an earlier decision, he said:
In Butler
v. Blaylock, [1981] B.C.J. No. 31, decided 7th October 1981, Vancouver
No. B781505, I referred to counsel’s argument that a defendant is often at
the mercy of a plaintiff in actions for damages for personal injuries because
complaints of pain cannot easily be disproved. I then said:
I am
not stating any new principle when I say that the court should be exceedingly
careful when there is little or no objective evidence of continuing injury and
when complaints of pain persist for long periods extending beyond the normal or
usual recovery.
An
injured person is entitled to be fully and properly compensated for any injury
or disability caused by a wrongdoer. But no one can expect his fellow citizen
or citizens to compensate him in the absence of convincing evidence – which
could be just his own evidence if the surrounding circumstances are consistent
– that his complaints of pain are true reflections of a continuing injury.
[224] The
plaintiff, relying upon Tsalamandris v. MacDonald, 2011 BCSC 1138, Polovnikoff
v. Banks, 2009 BCSC 750, and Young v. Anderson, 2008 BCSC 1306,
submits that the appropriate range for non-pecuniary damages in this case is
between $100,000 and $220,000 for Ms. Andrews’ soft tissue and
psychological injuries. None of the plaintiffs in those cases had the complex
pre-existing psychological conditions that distinguish Ms. Andrews’ case. In
Tsalamandris, the 47 year old female plaintiff had pre-existing neck and
back pain that was not severe, and did not impair her activities. She had no
pre-existing anxiety or mood disorder. The court found that the two motor
vehicle accidents in issue had caused the plaintiff’s major depressive disorder
and anxiety, and assessed non-pecuniary damages of $100,000. In Polovnikoff,
the court found that the plaintiff suffered a mild traumatic brain injury and
psychotic disorders as a result of the accident, and that the psychotic
disorder rendered the plaintiff completely unemployable. The court assessed
damages for the brain injury and the psychotic disorder separately, awarding
$50,000 for the brain injury and $220,000 for the psychotic disorder before
reducing the latter award to take into account the plaintiff’s alcoholism and
various tortious intervening events.
[225] The
defendants submit the appropriate range for non-pecuniary damages in this case
is between $30,000 and $60,000. The defendants rely upon Hubbard v.
Saunders, 2008 BCSC 486, Lehtonen v. Johnston et al, 2009 BCSC 1364,
Chamberlain v. Giles, 2008 BCSC 171, McCreight v. Currie, 2007
BCSC 127, and Piper v. Hassan, 2012 BCSC 189.
[226] In Hubbard,
the court awarded a 37-year-old plaintiff with a prior history of both physical
and psychological symptoms non-pecuniary damages of $45,000 as compensation for
mild to moderate soft tissue injuries and depression for a period of 18
months. The plaintiff’s psychological injuries were less severe than Ms. Andrews’.
In Chamberlain, the court, in awarding non-pecuniary damages of $50,000
to a plaintiff with a complex history of both pre-accident and post-accident
back and neck injuries, depression and anxiety disorders, found that 60% of the
plaintiff’s ongoing symptoms were caused by her pre-existing injuries and conditions.
[227] In McCreight,
the court awarded $40,000 in non-pecuniary damages to a 43-year-old plaintiff
with extensive pre-accident physical and psychological conditions. There, the
court found that the effects of the motor vehicle accident on the plaintiff’s
mental health were spent by the time of trial. In Piper, the court found
that the accident did not contribute to the plaintiff’s pre-existing depression
and post traumatic stress disorder, and awarded $50,000 for non-pecuniary
damages for mild to moderate soft tissue injuries that lasted for about 18
months.
Conclusion
[228] Returning
to the Stapley factors, the plaintiff was 51 years old at the time of the
accident and 55 at the time of trial. I find that her symptoms and complaints
attributable to the physical injuries she suffered in the accident had all
returned to their pre-accident position by the time of trial. However, Ms. Andrews
continues to suffer from her pain disorder, anxiety and depression. I have
found that 50% of her ongoing psychological injuries are attributable to the
accident. There is no doubt that the accident caused a significant escalation
of her depression and anxiety, and the onset of her pain disorder, although all
of her ongoing psychological symptoms cannot be attributed to the accident. However,
that event rendered her dysfunctional. Ms. Andrews identified with her
work and was dedicated to her clients. The accident caused or contributed to
her loss of emotional boundaries. The plaintiff’s ongoing anxiety, depression
and pain disorder have prevented her from seeking and obtaining new employment
as a counsellor to First Nations clients. Ms. Andrews’ psychological
injuries have impaired her social life and adversely affected her intimate
relations with Mr. Priolo. Since the accident, the plaintiff has led a
much diminished lifestyle. She no longer participates in the recreational
activities, hobbies or many of the social activities she previously enjoyed
with Mr. Priolo and others. The plaintiff has become withdrawn and
lethargic and no longer pays the same attention to her personal care and
grooming as she did before the accident.
[229] Leaving
aside for the moment the physical injuries suffered by the plaintiff as a
result of the accident, I find that the appropriate award of non-pecuniary
damages for the plaintiff’s psychological injuries is $100,000. That amount
must be discounted by 50% to take into account my finding that only half of Ms. Andrews’
ongoing psychological injuries and symptoms were caused by the accident. I
must assess non-pecuniary damages for all of the injuries suffered by the
plaintiff as a result of the accident. Taking into account Ms. Andrews’
physical injuries, as well as her psychological injuries attributable to the
accident, I assess the plaintiff’s overall damages for pain and suffering and
loss of enjoyment of life in the total amount of $85,000. This award is
subject to a 10% reduction for the plaintiffs failure to mitigate.
Past
Loss of Earning Capacity
[230] Compensation
for past loss of earning capacity is to be based on what the plaintiff would
have, not could have, earned but for the injury that was sustained: Rowe
v. Bobell Express Ltd., 2005 BCCA 141; M.B. v. British Columbia,
2003 SCC 53.
[231] Pursuant
to s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231,
a plaintiff is entitled to recover damages for only his or her past net income
loss. This means that in the ordinary course the court must deduct the
amount of income tax payable from lost gross earnings: Hudniuk v. Warkentin,
2003 BCSC 62; Lines v. Gordon, 2009 BCCA 106.
[232] The burden
of proof of actual past events is a balance of probabilities. An assessment of
loss of both past and future earning capacity involves consideration of
hypothetical events. The plaintiff is not required to prove these hypothetical
events on a balance of probabilities. The future or hypothetical possibility
will be taken into consideration as long as it is a real and substantial
possibility and not mere speculation: Athey v. Leonati at para. 27.
[233] On a claim
for past loss of earning capacity, the plaintiff must first establish on a balance
of probabilities that the injuries she sustained caused an impairment of her
earning capacity. Then, in determining what might have happened in the past to
enable the plaintiff to earn income, but for the accident, the court must
decide if the event was a real and substantial possibility, and then determine
the likelihood of it occurring: Smith v. Knudsen, 2004 BCCA 613 at paras. 28,
29, 36 and 37.
[234] The
plaintiff says that as a result of the accident she has been unable to work at
all and has lost the opportunity to practice as a counsellor to First Nations
clients in Vancouver, Calgary, or Maryland. Ms. Andrews submits that
based on her employment record as a counsellor before the accident, the
importance of her work to her sense of identity and her dedication to
counselling First Nations clients, it is likely that she would have continued
to work as a clinical counsellor to the date of trial and would have earned
annual remuneration at least equivalent to the average of her earnings in the
three years before the accident.
[235] In her
income tax returns for the years 2006 through 2008, the plaintiff reported net
business income of $23,074 in 2006, $9,963.10 in 2007 and $28,800.93 in 2008.
In addition, the plaintiff earned non-taxable income on reserve in the amounts
of $56,999.84 for 2006, $37,357.38 for 2007 and $25,715.32 for 2008.
[236] In 2009,
the plaintiff received payments from Health Canada totalling $81,225, as
evidenced by the T1 issued to her. Ms. Andrews has not produced an income
tax return for that year.
[237] The
plaintiff’s accounting expert, Mr. Benning, has estimated Ms. Andrews’
net business income for the nine months she worked in 2009 before terminating
her contract with Health Canada shortly before the accident at $73,108. Based
on Ms. Andrews’ reported income for 2006 through 2008 and her estimated
net business income for 2009, Mr. Benning calculated the plaintiff’s
average annual income from January 1, 2006 to October 10, 2009 in the amount of
$67,673. Again, based on the plaintiff’s pre-accident sources of income from
2006 to October 2009, Mr. Benning estimated that 34% of the plaintiff’s
income was taxable and 66% was non-taxable income earned on reserve.
[238] Based on
the assumption that the plaintiff would have remained in the labour force and
worked throughout the pre-trial period, and using Ms. Andrews’ average
annual earnings for the period January 1, 2006 through October10, 2009, Mr. Benning
estimated the plaintiff’s past loss of income of earning capacity, net of
income tax, in the amount of approximately $234,000.
[239] The
defendants argue that before the accident the plaintiff had terminated her
contract with Health Canada, had no definite plans for future employment, was
already suffering from depression and was at risk of decompensation in any
event. The defendants say that in the absence of any convincing evidence of
the availability of any employment opportunities lost by the plaintiff, and in
light of Ms. Andrews’ pre-existing psychological conditions, any award of
damages for past loss of earning capacity should be modest.
Discussion
[240] The
plaintiff was not employed at the time of the accident. She intended to take
three or four weeks off work before she pursued a new counselling opportunity.
She had no settled plan and was considering opening an office in Vancouver or
Calgary, or even finding work as a counsellor to Native Americans in the State
of Maryland. Ms. Andrews would have required time to investigate her
options and open a new practice in Vancouver, Calgary or elsewhere. I find
that the plaintiff has not established a real and substantial possibility that
she would have earned any income for the remainder of 2009.
[241] I am
however satisfied that but for the accident the plaintiff would likely have
sought and found work as a counsellor to First Nations clients. Ms. Andrews
was dedicated to working in that field and had done so continuously since
completing her Masters’ Degree. While it is probable that she would have
established a full-time practice as a counsellor, there is also a chance, which
I would rate at no more than five percent, that she might have enrolled in a
Doctorate of Education program before the trial date, and worked part-time, either
as a counsellor or in some other capacity, while pursuing her studies.
[242] Mr. Benning
made no allowance for the time required for Ms. Andrews to start up a new
practice and then build it to the point where it could generate income in
excess of her overhead. The court has no reliable evidence of the costs Ms. Andrews
would have incurred in setting up her own practice in either Vancouver of
Calgary. Nor has Mr. Benning made any allowance for the contingency that
absent the motor vehicle accident, the plaintiff might have lost time from work
before the trial date as a result of illness or disability.
[243] Dr. Travlos
thought that Ms. Andrews was substantially at risk of decompensation
before the motor vehicle accident, although she would not have suffered her
emotional and psychological collapse when she did, absent the accident. Drs. O’Shaughnessy
and Vallance both agreed that the plaintiff’s pre-existing anxiety and mood
disorders rendered her extremely sensitive to psycho-social stresses. I find
there is a real and substantial possibility that the plaintiff would have
suffered a disabling bout of anxiety and depression or decompensation without
the motor vehicle accident at sometime between the date of the accident and the
date of trial.
[244] Ms. Andrews
also wanted to spend more time with Mr. Priolo, which would likely have
resulted in additional time out of the workforce.
[245] In
addition to these negative contingencies, I take into account the possibility
that Ms. Andrews might have earned income at a level higher than her
annual average in one or more of the years before trial.
[246] Mr. Benning’s
estimate of the plaintiff’s damages for past loss of earning capacity in the net
amount of $234,000 is based on the flawed assumption that but for the accident
the plaintiff would have worked continuously as a full-time counsellor from
October 10, 2009 to the date of trial, with no adjustment for non-participation
in the workforce. However, Mr. Benning’s estimate of the plaintiff’s
average pre-trial annual earnings in the $67,000 to $68,000 range provides a
useful starting point for the assessment of the plaintiff’s damages under this
head. I find that the plaintiff’s average annual income, as estimated by Mr. Benning,
provides a realistic measure of the annual income Ms. Andrews would have
earned as a full-time counsellor providing services to First Nations clients,
before adjusting for the contingencies applicable to her circumstances.
[247] Mr. Henry
Big Throat, the Vice-President of Student Services at Red Crow College on the Blood
Reserve, testified that his institution employs five counsellors at salaries of
between $65,000 and $70,000 per year. For a First Nations counsellor, that
income, earned on reserve, would be tax free. However, Mr. Big Throat
gave evidence in cross-examination that no counselling positions have become
available at Red Crow College since 2005. Mr. Big Throat also testified
that at the time of trial, Lethbridge College was advertising for a counsellor
for First Nations students at an annual salary of $75,000.
[248] I have
found there was no real or substantial possibility that Ms. Andrews would
have earned any income during the remainder of 2009. Accordingly, Ms. Andrews
would not have earned the income attributed to her for the balance of 2009 in Mr. Benning’s
estimates.
[249] In my
view, there are real and substantial possibilities that the plaintiff would
have required additional time in 2010 to build her practice to the point where
it would generate income in excess of overhead; that the plaintiff would have taken
additional time off work as her relationship with Mr. Priolo developed;
and most importantly, that the plaintiff might have been disabled from
employment by her pre-existing psychological conditions for some part of the
time between October 10, 2009 and the date of trial. I have also found that
there was a small chance that the plaintiff might have withdrawn from full-time
employment to study for her Doctorate while working part-time. Taking all of
these factors into account, I would assess the overall chance of those events
reducing or impairing the plaintiff’s earning capacity to the date of trial at
50%.
[250] Mr. Benning
estimated the plaintiff’s gross income loss from October 10, 2009 to the date
of trial in the amount of $243,304. Deducting the amount Mr. Benning
estimated for the remainder of 2009 – $15,675, would leave a balance of about
$227,000. Accordingly, I assess the plaintiff’s past loss of earning capacity
in the gross amount of $113,500, that being half of the remaining amount from Mr. Benning’s
estimate. I must adjust that amount by deducting the income tax payable on the
gross lost earnings.
[251] But for
the accident, the plaintiff would most likely have established a counselling
practice in either Vancouver or Calgary, where her mother and step-father
reside. Because she would be earning her income off reserve, the whole of her
income would be taxable.
[252] Under
ss. 95 and 98 of the Insurance (Vehicle) Act, the court has the
discretion to determine the period or periods appropriate for the determination
of the plaintiff’s net income loss: Lines at para. 184.
[253]
In Lines at paras. 183, 185 and 186, the Court of Appeal
gave examples and directions concerning the trial judge’s exercise of
discretion:
[183] Another example is a situation where the plaintiff was
unemployed at the time of the accident and had no imminent prospects of
employment. The judge or jury could make an award for loss of past earning
capacity, but it would be artificial to allocate it among different periods.
[185] By way of contrast to the two examples I have given,
in the situation where, at the time of injury, the plaintiff was working at a
job and returned to that job after sufficiently recovering from the injuries,
it would be appropriate, absent any complications, for the judge to allocate
the gross income loss to the calendar years between the date of the accident
and the date of trial as if the plaintiff had continued working. This would
accord with the principle that, insofar as is possible, the plaintiff should be
put in the position he or she would have been in if not for the injuries caused
by the defendant’s negligence.
[186] There will be a wide
variety of circumstances facing trial judges. In each case, the trial judge
will have to decide whether it is appropriate in the circumstances before him
or her to calculate net income loss on the basis of one period, calendar-year
periods or other multiple periods. In making a decision in this regard, the
trial judge should consider all of the circumstances and apply s. 98 in a
manner that is most consistent with the principles of damage assessment to
which I have referred.
[254] Here, the
plaintiff was not employed at the time of the accident, and had no firm plan
about where she would operate her counselling practice. While I am confident
that she would have found an opportunity to continue her practice, I am not
able to say, with any precision, on the evidence adduced at trial, when in 2010
she would have opened an office in Vancouver or Calgary. Nor am I able to
allocate to a particular year or years the period, or periods, of time when the
plaintiff might have withdrawn from the workforce as a result of illness or
disease unrelated to the motor vehicle accident. I have therefore concluded
that I must assess the plaintiff’s net income loss in a lump sum for the whole
of the period from January 1, 2010 to the first day of trial, as if the gross
income award were received by the plaintiff on the first day of trial.
Conclusion
[255] As at the
date of trial, the income tax payable on $113,500 at the applicable rate of 26%
was $29,510. Accordingly, after making the deduction for income tax, I assess
the plaintiff’s damages for past loss of earning capacity in the amount of $84,000.
Loss of Future Earning Capacity
[256]
The
standard of proof for the evaluation of hypothetical events that may affect an
award of damages for future loss of earning capacity is simple probability,
rather than the balance of probabilities: Athey v. Leonati. As the Court
of Appeal held in Rosvold v. Dunlop, 2001 BCCA 1 at para 9:
[9]
… Possibilities and probabilities, chances, opportunities and risks must all
be considered, so long as they are a real and substantial possibility and not
mere speculation. These possibilities are to be given weight according to the
percentage chance they would have happened or will happen.
[257]
In
Rosvold at paras. 10 and 11, the Court of Appeal described the task
of the trial judge as follows:
[10]
The trial judge’s task is to assess the loss on a judgmental basis, taking into
consideration all the relevant factors arising from the evidence: Mazzuca v.
Alexakis, [1994] B.C.J. No. 2128 (S.C.) (Q.L.) at para. 121, aff’d
[1997] B.C.J. No. 2178 (C.A.) (Q.L.). Guidance as to what factors may be
relevant can be found in Parypa v. Wickware, supra, at para. 31;
Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 126 (C.A.); and Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include:
[1]
whether the plaintiff has been rendered less capable overall from earning
income from all types of employment;
[2]
whether the plaintiff is less marketable or attractive as an employee to
potential employers;
[3]
whether the plaintiff has lost the ability to take advantage of all job
opportunities which might otherwise have been open to him, had he not been
injured; and
[4]
whether the plaintiff is less valuable to himself as a person capable of
earning income in a competitive labour market.
[11]
The task of the court is to assess damages, not to calculate them according to
some mathematical formula: Mulholland (Guardian ad litem of) v. Riley Estate
(1995), 12 B.C.L.R. (3d) 248 (C.A.). Once impairment of a plaintiff’s earning
capacity as a capital asset has been established, that impairment must be
valued. The valuation may involve a comparison of the likely future of the
plaintiff if the accident had not happened with the plaintiff’s likely future
after the accident has happened. As a starting point, a trial judge may
determine the present value of the difference between the amounts earned under
those two scenarios. But if this is done, it is not to be the end of the
inquiry: Ryder (Guardian ad litem of) v. Jubbal, [1995] B.C.J. No. 644
(C.A.) (Q.L.); Parypa v. Wickware, supra. The overall fairness
and reasonableness of the award must be considered taking into account all the
evidence.
[258]
In
Perren v. Lalari, 2010 BCCA 140, Garson J.A., after reviewing the
authorities, identified the basic principles articulated in Athey and Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, as:
1. A
future or hypothetical possibility will be taken into consideration as long as
it is a real and substantial possibility and not mere speculation [Athey
at para. 27], and
2. It
is not loss of earnings, but, rather, loss of earning capacity for which
compensation must be made [Andrews at 251].
[259] As Garson
J.A. emphasized in Perren at para. 32, the plaintiff must always
prove there is a real and substantial possibility of a future event leading to
an income loss. If the plaintiff meets that burden, then the plaintiff may
prove the quantification of the loss of earning capacity on either an earnings
approach or a capital asset approach. Where the loss is not readily
measurable, the capital asset approach will be more useful than the earnings
approach.
[260] Where the
assessment is based on the capital asset approach, the court must consider four
questions in Brown and make findings of fact concerning the nature and
extent of the plaintiff’s loss of capacity and how that loss may impact the
plaintiff’s ability to earn income: Morgan v. Galbraith, 2013 BCCA 305
at para. 56.
[261] I must
first determine whether the plaintiff has established a real and substantial
possibility of a future event leading to an income loss. If so, the court must
assess, rather than calculate damages according to the likelihood of the event
occurring. The award must be adjusted for both positive and negative
contingencies, and the court must consider the overall fairness and
reasonableness of the award: Rosvold at para. 11.
[262] Dr. O’
Shaughnessy thought the plaintiff’s degree of anxiety, depression and dysfunction
at the time he saw her prevented her from working. He explained Ms. Andrews
could not work as a therapist for others when she was so preoccupied with her
own symptoms and dysfunction.
[263] Dr. O’Shaughnessy
thought that it was likely that with appropriate treatment, including
psychotherapy and medication, the plaintiff would experience a reduction in her
symptoms that would possibly allow her to return to work as a counsellor.
[264] Dr. O’Shaughnessy
agreed in cross-examination that Ms. Andrews’ recent regular attendance or
treatments and heightened cooperation with her various health care providers,
her diminished emotional attachment to the motor vehicle accident as her major
stressor, her report of progress with Dr. MacKinnon and her engagement to Mr. Priolo
were all positive indicators for improvement in her psychological condition.
[265] Dr. Vallance
thought that the plaintiff, with her history of childhood neglect and abuse,
her personality traits and anxiety and mood disorders ought never to have
worked as a counsellor to residential school survivors. In Dr. Vallance’s
opinion, there would have to be a massive improvement in the plaintiff’s
depression and anxiety disorder, which he did not anticipate, in order for the
plaintiff to return to her former counselling work. However, he thought that
with further therapy, the plaintiff could perform other, less strenuous
counselling work. In cross-examination, Dr. Vallance said he thought the
prospects of that were quite good, although both her depression and anxiety
would need to improve significantly.
[266] Dr. Travlos
also thought the plaintiff might be able to return to full-time employment with
an improvement in her mental health. He was unable to provide any definitive
opinion on timing. Dr. Travlos also thought the plaintiff would have to
make a decision about whether she could return to counselling, or should pursue
an alternate career, perhaps in the field of Human Resources, an area in which
she had expressed some interest.
[267] The
plaintiff led no evidence about the levels of income earned by Human Resources
practitioners.
[268] Mr. Janmohamed,
an occupational therapist and certified work capacity evaluator, performed a
functional capacity evaluation of the plaintiff on November 8, 2012. Mr. Janmohamed’s
assessment and his report of December 12, 2012 focused on the plaintiff’s
physical abilities and limitations, rather than her psychological limitations.
Based on the history he took from the plaintiff and the tests he administered, Mr. Janmohamed
found that Ms. Andrews tended to underrate her functional abilities. He
also observed some inconsistencies in the plaintiff’s performance over the
course of his evaluation. During testing, the plaintiff could only bend her
neck forward 30 degrees, however later in the day he observed a 45 degree range
of motion. Similarly, formal testing revealed only 52 degrees of left shoulder
flexion, although Mr. Janmohamed later observed the plaintiff demonstrate
110 degrees of shoulder flexion. Mr. Janmohamed found that the plaintiff’s
self-reporting of her neck and upper back symptoms during testing were
inconsistent with his observations and testing of her functional capacity.
[269] The
plaintiff’s subjective estimates of the functional impact of her pain exceeded
the functional impact Mr. Janmohamed observed on objective tests about 50%
of the time. Mr. Janmohamed thought that the plaintiff was capable of
performing the sedentary physical duties of a counsellor and that she had the
physical ability to return to work as a counsellor on a graduated basis.
[270] In Mr. Janmohamed’s
opinion, at a purely physical functional level, the plaintiff had sufficient
sitting, reaching, handling, neck flexion and lifting tolerance to return to
her occupation as a counsellor for two to four hours per day on an extended
graduated return to work program over 12 to 20 weeks. Mr. Janmohamed was
aware of the plaintiff’s psychological symptoms and deferred to her examining
psychologists and psychiatrists on that aspect of her functioning.
[271] Mr. Janmohamed
felt that if the plaintiff was going to attempt to return to work as a
counsellor, an urban practice would likely be better for her because she would
avoid extended travel and the extended sitting which caused her discomfort.
[272] Mr. John
Lawless, who was qualified as an expert in vocational rehabilitation, provided
a report dated November 30, 2012. In Mr. Lawless’ opinion, it is
improbable that the plaintiff will return to work as a counsellor. In direct
examination, Mr. Lawless thought it probable that the plaintiff is not
competitively unemployable, although there was a chance, assuming some
improvement in her psychological condition, that she could find other and less
demanding employment. In cross-examination, Mr. Lawless agreed that the
plaintiff has marketable qualities, including superior intelligence. She is
well educated and in the past has demonstrated resilience from adversity and
the will-power to overcome substantial obstacles. Mr. Lawless agreed that
the plaintiff’s primary problems are psychological. The plaintiff told Mr. Lawless
that she did not think she could maintain boundaries between herself and her
clients any longer. In Mr. Lawless’ opinion, the plaintiff’s inability to
maintain boundaries undermined the counsellor/client relationship and precluded
the plaintiff from returning to work as a counsellor.
[273] Based on
the history he took from the plaintiff and his vocational testing, Mr. Lawless
thought that if there was some future improvement in the plaintiff’s
psychological condition, she might be able to return to work in less skilled
service occupations that involved duties less likely to engage her emotional
and interpersonal difficulties. The positions Mr. Lawless thought might
be suitable included community and social service workers, airline sales and
service agents, customer service, information and related clerks, and personnel
clerks. Annual earnings for these positions range from $36,000 to $45,000.
[274] Dr. Travlos
offers a more optimistic prognosis for the plaintiff’s return to the workforce
than Mr. Lawless did.
[275] I attach
less weight to Mr. Lawless opinion than I do to the opinions of Drs. Travlos
and O Shaughnessy respecting the prospects for Ms. Andrews future return to
the workforce. Unlike the other experts, Mr. Lawless appears to have accepted
the plaintiffs self-reporting without reservation, despite having had the
opportunity to review contradictory clinical records. Mr. Lawless also
thought, erroneously, that the plaintiff had suffered a traumatic brain injury
in the accident.
[276] I find
that Ms. Andrews has met the burden of establishing a real and substantial
possibility that her capacity to earn income has been impaired by the
accident. However, in my view, the extent of that impairment is not as severe
as she claims. She has recovered from the physical injuries caused by the
accident. I accept the evidence of Dr. Travlos and Mr. Janmohamed
that Ms. Andrews has the physical capacity to return to work as a
counsellor. However, all of the experts agree that her psychological condition
has impaired her functioning. One of the effects of the plaintiff’s pain
disorder is her exaggerated perception of the extent of her disability. As a
result of her psychological condition, Ms. Andrews’ ability to motivate
herself is significantly impaired. Her psychological prognosis is guarded.
Much depends upon her progress in treatment for anxiety, mood and pain
disorders. The accident exacerbated her pre-existing psychological disorders.
Her symptoms have also been prolonged by subsequent intervening events.
[277] I find
that as a result of her psychological injuries Ms. Andrews has been
rendered less capable overall from earning income from all types of employment,
and that she is less marketable or attractive to potential employers. Until
the plaintiff is able to motivate herself, re-establish emotional boundaries,
and cope with her anxiety and mood disorders, she has lost the ability to take
advantage of all of the job opportunities that might have otherwise been
available to her, but for the motor vehicle accident. The plaintiff, whose
sense of identity was closely tied to her work, clearly places less value on
herself as a person capable of earning income in a competitive market.
[278] I find
that but for the accident, Ms. Andrews would likely have continued her
counselling practice, probably in Vancouver or Calgary, but possibly in
Maryland.
[279] The
plaintiff called a number of witnesses who gave evidence concerning Ms. Andrews’
strong academic performance, her skills and attributes as a counsellor, and the
availability of work for counsellors providing services to First Nations
clients. Mr. Big Throat first met the plaintiff when she applied to
attend the University of British Columbia for her Bachelor of Arts degree, and
later her Master’s Degree in counselling. He described her as a hard-working
and a very strong academic student who received straight As. He testified that
he wanted to hire her for the Red Crow College counselling program, however no
positions were available.
[280] Chief Joe
Norris is a hereditary Chief and a member of the Board of Directors of the IRSSS,
which employed the plaintiff as a counsellor from 2004 through 2007. Chief
Norris described the plaintiff as a respectful and excellent worker with a
sense of humour.
[281] Chief
Norris testified that IRSSS currently employs six counsellors and that if Ms. Andrews
were interested in returning to work with the Society he would likely have work
available for her. Chief Norris also thought the plaintiff was well qualified
for employment at the drug and alcohol treatment facility at Lantzville on
Vancouver Island, or other treatment facilities located on First Nations’
reserves throughout the Province where similar work might be available.
[282] In
cross-examination, Chief Norris agreed that listening to the stories of
residential school survivors takes its toll on counsellors, who in turn need
counselling themselves. Ms. Andrews participated in twice yearly
retreats that the IRSSS conducted for its counsellors. Chief Norris said that
following those retreats, the plaintiff was able to continue providing services
to her clients.
[283] Dr. Marvin
Westwood, a Professor in the Department of Education at the University of
British Columbia, supervised the plaintiff’s clinical training program. He
described Ms. Andrews as a highly competent, mature and skilled student
whose knowledge of indigenous people and sensitivity equipped her to work in
First Nations’ communities. Dr. Westwood rated the plaintiff in the top
10 to 15 percent of students he had taught over 30 years.
[284] Similarly,
Dr. Rod McCormick, a Professor of Counselling Education at the University
of British Columbia who had taught the plaintiff’s clinical course, described
her as a strong student who obtained the top mark in her section of the clinic
course. Dr. McCormick testified that there is a high demand for
aboriginal students who complete the Master’s counselling program. He thought
there would be opportunities for employment with the new Aboriginal Health
Authority established by the Province and said there are counselling positions
across the country at facilities operated through the national Drug and Alcohol
Treatment Program, and at healing centers run by tribal groups. Dr. McCormick
understood these positions now paid salaries in the low $80,000 range.
[285] But for
the accident, it is likely that the plaintiff, with her particular skills, high
intelligence, and connections to the Aboriginal community would have found work
as a counsellor. Given the demanding nature of her work, and the stressors
involved, it is unlikely she would have worked beyond age 65.
[286] The
plaintiff has suffered an impairment of a capital asset, that is, her ability
to earn income.
[287] I turn now
to the positive and negative contingencies affecting an award of damages for
loss of future income in this case. Absent the accident, the plaintiff may
have been unemployed for periods of time due to such factors as reductions in
funding for Aboriginal counselling programs, or unrelated illness. There is also
a substantial risk of disability as a result of the exacerbation of her
pre-existing psychological conditions in the absence of the accident and her
possible decompensation in any event. The plaintiff may also have chosen to
work part-time while pursuing her Doctorate.
[288] There is
also a real possibility, in my view, that with the benefit of further cognitive
behavioural therapy, as recommended by Dr. O’Shaughnessy, the plaintiff’s
psychological condition will improve, she will learn to manage her anxiety,
mood and pain disorders, and she will be able to return to full-time
employment, although probably not as a counsellor to residential school
survivors.
[289] Dr. Travlos
thought that it was possible that the emotional challenges would be too much
for Ms. Andrews and that she might have to seek alternate employment. He
opined that any type of return to work would be beneficial for the plaintiff
for both physical and mental health reasons.
[290] Ms. Andrews
will require additional psychotherapy to restore her functioning to the point
where she is able to return to the work force. She may also require some
retraining. There is a real and substantial possibility that she will not
return to counselling First Nations residential school survivors and may find
employment that is less stressful and less remunerative than her former
employment. I also recognize the real possibility that as a result of her
pre-existing psychological condition the plaintiff may have suffered some loss
of earning capacity as a result of decompensation in any event. Further, only
50% of her ongoing psychological symptoms are attributable to the motor vehicle
accident.
[291] Taking
all of these factors into account, and adopting the capital asset approach, I find
that an amount approximating two years’ earnings as a counsellor is a
reasonable award for Ms. Andrews’ future loss of earning capacity. Mr.
Benning estimated the plaintiffs without-accident income at the time of trial
at $74,259. I assess the plaintiffs damages for loss of future earning capacity
in the amount of $150,000.
[292] The
defendants have not shown that the plaintiffs damages for loss of future
earning capacity would have been reduced had she followed her treatment
providers recommendations to establish a regular sleep and exercise schedule.
Accordingly, there will be no reduction from this head of damages for failure
to mitigate.
Cost of Future Care
[293] Claims for
cost of future care must be medically justified and reasonable. The award of
damages must be moderate and fair to both parties: Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 (S.C.) at para. 210.
[294]
In Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at paras. 21-22
McLachlin C.J. stated:
21 Damages for cost of future care are a matter of
prediction. No one knows the future. Yet the rule that damages must be
assessed once and for all at the time of trial (subject to modification on
appeal) requires courts to peer into the future and fix the damages for future
care as best they can. In doing so, courts rely on the evidence as to what
care is likely to be in the injured person’s best interest. Then they
calculate the present cost of providing that care and may make an adjustment
for the contingency that the future may differ from what the evidence at trial
indicates.
22 The resulting award may
be said to reflect the reasonable or normal expectations of what the injured
person will require. Jane Stapleton, "The Normal Expectancies Measure
in Tort Damages" (1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58,
that the tort measure of compensatory damages may be described as the "’normal
expectancies’ measure", a term which "more clearly describes the aim
of awards of compensatory damages in tort: namely, to re-position the plaintiff
to the destination he would normally have reached . . . had it not been for the
tort". The measure is objective, based on the evidence. This method
produces a result fair to both the claimant and the defendant. The claimant
receives damages for future losses, as best they can be ascertained. The
defendant is required to compensate for those losses. To award less than what
may reasonably be expected to be required is to give the plaintiff too little
and unfairly advantage the defendant. To award more is to give the plaintiff a
windfall and require the defendant to pay more than is fair.
[295] The
plaintiff claims the costs of future care that are medically justified and
reasonable in order to increase Ms. Andrews’ level of independence and
participation in her life activities to her pre-accident status and potential
include the costs of psychological counselling, kinesiology, physiotherapy,
fitness centre classes, occupational therapy, and the services of a
rehabilitation assistant. In addition, the plaintiff claims the costs for
replacing an ergonomic chair and foot rest. The plaintiff bases her claim on
the recommendations made by Ms. Allison McLean in her cost of future care
report.
[296] Ms. Andrews
initially founded her claim for cost of future care on the assumption that she
will require all of those services for her lifetime. The plaintiff’s
economist, Mr. Benning, valued those costs at $314,780. However, the
plaintiff, recognizing she may have required some of this care without the
accident, and that there is a possibility she will improve, now claims a total
of $150,000 for cost of future care.
[297] The defendants
submit that the plaintiff had returned to her original position before trial,
and therefore has no entitlement to damages for costs of future care. The
defendants also argue that the plaintiff’s original position is such that she
would likely have required many of the recommended expenses in any event.
[298] Ms. Allison
McLean, an occupational therapist, provided a cost of future care evaluation report
dated December 14, 2012, marked as Exhibit 8. Her recommendations are based on
her assessment of what is necessary for the plaintiff in terms of functional
necessity, and what is medically reasonable. In cross-examination, Ms. McLean
agreed that she has assumed that the information in the medical and clinical
reports she reviewed is accurate. She relied on the accuracy of the plaintiff’s
self-reporting, and agreed that inaccuracies or omissions in the medical
reports and clinical records could affect her opinion.
[299] Ms. McLean
noted that during late 2009 and early 2010, the plaintiff progressed gradually
in physiotherapy, so that her sessions were reduced from twice a week to once a
week, and that she implemented an exercise program with a kinesiologist. The
plaintiff was able to cook more and carry more groceries. However, as time
went on, her functioning deteriorated. The plaintiff cancelled or missed
treatment appointments and was often late for treatment. From November 2010 to
February 2011, Ms. Andrews had little contact with her occupational
therapist. Ms. McLean understood that the plaintiff’s psychological
difficulties affected her ability to keep appointments and participate in her
rehabilitation program.
[300] Ms. McLean
agreed in cross examination that over the three to six months before she
assessed the plaintiff, she understood that Ms. Andrews was attending for
her therapies and was slowly improving.
[301] Ms. McLean
was aware that there were various stressors affecting the plaintiff’s life from
mid-2010 through 2012. She said that she would defer to a psychiatrist or
psychologist for advice on whether a person would benefit from counselling or
psychiatric treatment.
[302]
At page 11 of her opinion, Ms. McLean said the following:
It is my opinion that,
although Ms. Andrews is independent in personal care activities, she is
otherwise significantly disabled with regard to her capacity to engage and
participate in the other major areas of occupational performance in her life −
including work, homemaking, and social, leisure and fitness activities. Prior
to the accident, despite some physical/pain symptoms and despite ongoing
emotional difficulties over the years, she was working as a clinical counsellor
in a job that required travel to other parts of the province, she took care of
her apartment including taking her dog for multiple walks in a day and, as her
schedule permitted, she participated in fitness and social activities.
Ms. Andrews’ pre-injury
level of function contrasts with her current status: she is not working, she
struggles to maintain her household in particular in terms of organization and
clutter, and she has some fears relating to being outside on her own and to her
(or others in her life) becoming physically hurt. She does not carry out
fitness activities on her own. She walks her dog only about once per day at
most. Since the time of the accident, she has struggled with motivation and
self-organization and has not consistently attended and followed-through with
her therapies − although she is
gradually improving over time, in particular over the last few months.
I
agree with other experts that Ms. Andrews’ psychological/emotional
symptoms are the primary barriers to her recovery from the accident. It is my
opinion that this includes a return to pre-injury level of participation in her
life activities.
[303] Ms. McLean
made recommendations for psychological counselling and physical conditioning,
including the continuation of the services of a kinesiologist over the next two
years, and a physiotherapist for 12 sessions per year for the next two years.
She has also made recommendations that Ms. Andrews attend a fitness center
and that she continue to be provided with occupational therapy services for the
next two years. In addition, she has recommended that the plaintiff be
provided with a rehabilitation assistant to help her with de-cluttering and
reorganizing her apartment. With respect to equipment, her report includes
costing for the replacement of an ergonomic chair and foot rest.
[304] The
plaintiff is not making any claim for the costs of prescription medication. She
continues to use pre-accident medications, including Wellbutrin, Ativan for the
treatment of depression and anxiety, and Elavil to assist her in sleeping.
[305] At the
time of trial, the plaintiff was seeing her psychologist, Dr. Joanne
MacKinnon, about once a week, although she missed some appointments in order to
travel to the United States to visit Mr. Priolo, or as a result of
unanticipated events. Dr. O’Shaughnessy has recommended cognitive
behavioural therapy for Ms. Andrews. Ms. McLean reported Dr. MacKinnon
was providing the plaintiff with both cognitive and emotional therapy.
[306] Dr. MacKinnon
recommended that Ms. Andrews would require an additional one to two years
of counselling, ideally on a weekly basis. However, it is likely that the
plaintiff will continue to miss or cancel some of her appointments. Based on Dr. MacKinnon’s
hourly rate of $180 per hour, Ms. McLean has estimated the annual cost of
psychological counselling for 40 sessions at $7,200. Based on the cost of
future care multipliers provided by Mr. Benning, the present value of two
years psychological counselling at 40 sessions per year is $13,810.
[307] Considering
the complexity and persistence of the plaintiff’s anxiety, mood and pain
disorders, I find that she will likely require and would benefit from further
psychotherapeutic counselling. As Dr. O’Shaughnessy reported, the
plaintiff will benefit from cognitive behavioural therapy that assists her in
managing her anxiety and coping with her pain disorder so that she may function
even when in discomfort.
[308] Bearing in
mind that Ms. Andrews’ current psychological conditions and symptoms were
not all caused by the accident and that the plaintiff was at risk, in any
event, of intermittent escalation of her pre-existing anxiety and depression, I
find that a reasonable award for future cognitive behavioural therapy is $7,000.
[309] Ms. McLean
has recommended that Ms. Andrews be provided with occupational therapy
services for four hours per month for two years at an estimated cost of between
$6,048 and $6,300 per year, based on the most recent fee structure for British
Columbia occupational therapists. The occupational therapist would assist the
plaintiff in setting and meeting realistic goals in her day to day functioning.
Dr. Travlos also recommended occupational therapy. He thought that if the
plaintiff had the assistance of an occupational therapist, established regular
sleeping patterns, and made progress with her mental health, she would be able
to achieve normal social functioning. Dr. Travlos thought that the key to
the plaintiff’s recovery would be her response to psychotherapy. There is a
real possibility that as her psychotherapy proceeds, the plaintiff’s ability to
function and manage her own daily activities will improve, and her need for the
assistance of an occupational therapist will diminish. The current impairment
of the plaintiff’s functioning results from her psychological condition, rather
than any ongoing physical disability caused by the accident. I have found that
50% of the plaintiff’s current psychological symptoms are attributable to the
motor vehicle accident. Taking all of these factors into account, I would
allow $6,200 for occupational therapy services, representing half the amount
recommended by Ms. McLean, or one year of services.
[310] Ms. McLean
has also recommended that Ms. Andrews be provided with the services of a
rehabilitation assistant to help her with de-cluttering and reorganizing her
apartment for 13 sessions over a period of three months at a cost of $812.50.
I am satisfied that the plaintiff would benefit from that assistance. Again,
recognizing the possibility that Ms. Andrews might have required help in
organizing her home in any event, I would allow half of the amount claimed for
this item.
[311] I have
found that by the time of trial the plaintiff had returned to her original
position with respect to her physical complaints and symptoms. Accordingly, I
make no award for costs of future care for physiotherapy or the replacement of
the plaintiff’s ergonomic chair and footrest. However, one of the
recommendations made by Dr. Travlos to assist the plaintiff in achieving "functional
daily societal participation" was that she increase her level of physical
activity by exercising at a community centre or gym, where she would be more
likely to complete an exercise regime than if left to her own devices at home.
Dr. Travlos recommended that the plaintiff start with two sessions a week
and gradually increase to four to five sessions per week, including Bikram yoga
and Pilates fitness classes.
[312] Ms. McLean
has recommended that the plaintiff continue have the assistance of a
kinesiologist over the next two years to assist her in following through with
an exercise program. Ms. McLean has proposed that the kinesiologist
initially work with the plaintiff three times a week for three months, and then
reduce her involvement in stages to one session per month in the second year.
Annual membership for a community recreation centre would cost $357. Ms. McLean
has recommended adding one Pilates or yoga class per week starting in the
fourth month of the proposed two-year program at a cost of $18 per session for
yoga or $14 per session for Pilates.
[313] Mr. Benning
has estimated the present value of the two years of kinesiology recommended by Ms. McLean
at $6,183, and the cost of two years’ membership at a community centre plus the
recommended fitness classes at $2,182, for a total of $8,365.
[314] The
plaintiff’s inability to organize and motivate herself to increase her physical
activity is only attributable in part to the motor vehicle accident. In
addition, based on the plaintiff’s past irregular attendance at exercise
classes, there is a significant risk that she may not take advantage of the
entire recommended exercise regime. Taking those factors into account, I find
that $2,500 is a reasonable allowance for future costs of kinesiology, a
fitness centre membership and classes.
[315] Bearing in
mind that the award for costs of future care must be moderate and fair to both
parties, and that I have found that 50% of the plaintiff’s ongoing
psychological symptoms are attributable to causes other than the motor vehicle
accident, I assess damages for cost of future care in the total amount of $16,000.
[316] I make no
deduction from the award of damages for cost of future care for the plaintiffs
past failure to follow certain recommendations of her care providers. By the
time of trial, the plaintiff was following the recommendations of her treating
professionals, and was reporting progress.
Special Damages
[317] An injured
person is entitled to recover reasonable out-of-pocket expenses incurred as a
result of an accident, in order to restore the claimant to the position he or
she would have been in had the accident not occurred: X. v. Y, 2011 BCSC
944 at para. 281; Milina v. Bartch at para. 170.
[318] The
plaintiff claims special damages of $76,924.07 for costs of treatment she has
incurred since the motor vehicle accident.
[319] The
defendants submit that in light of the plaintiff’s original position, she would
have incurred many of the expenses she has claimed in any event. The defendants
also contend that because the plaintiff testified she had not paid for any of
the claimed expenses, she has failed to prove her entitlement to special
damages. Alternatively, the defendants argue that if special damages are
awarded, they should be limited to a specific time period for which Ms. Andrews
required the treatments claimed as a result of her injuries rather than other
causes.
[320] The
plaintiff’s solicitors paid the invoices for the expenses claimed as special
damages. I am satisfied that those expenses were paid on the plaintiff’s
behalf, and she is ultimately responsible for them. Accordingly, the plaintiff
is entitled to an award of special damages for the out-of-pocket expenses which
were reasonably incurred as a result of the accident.
[321] Based on
my finding that 50% of the plaintiff’s ongoing psychological symptoms are
attributable to the motor vehicle accident, I would allow 50% of the amounts
claimed for the psychological counselling provided by Chuck Jung Associates in
the amount of $4,817.50 and half of the psychological counselling provided by Dr. Joanne
MacKinnon in the amount of $2,293.75, for a total of $7,111.25.
[322] I have
found that the plaintiff required home support assistance through February 2010.
Therefore I award the amount claimed for home support services from November 2,
2009 through February 28, 2010 in the sum of $1,338.75.
[323] The
plaintiff claims a total of $20,346 for physiotherapy, including $6,440 for massage
therapy and $6,150 for active rehabilitation. The plaintiff claims for 114
physiotherapy sessions, 67 massage therapy sessions and 71 active
rehabilitation sessions. I have found that Ms. Andrews had substantially
recovered from her physical injuries caused by the motor vehicle accident by
late January 2011. The total expense incurred for physiotherapy, massage
therapy and active rehabilitation services through January 2011 was $14,661.
[324] The
plaintiff suffered minor to moderate physical injuries in the motor vehicle
accident. Much of her ongoing pain was and is attributable to her
psychological condition, and in particular, her pain disorder, which has
impeded her recovery. Ms. Andrews also missed appointments for physiotherapy
and massage therapy, which probably set back her recovery time. Further, the
plaintiff has a history of flare-ups of her pre-existing neck and back pain. Bearing
in mind the necessity for the court to exercise caution in arriving at fair and
reasonable compensation where the plaintiff’s complaints of pain have persisted
beyond any normal recovery period for the soft tissue injuries she sustained in
the accident, I award $7,500 as special damages for physiotherapy, including
massage therapy and active rehabilitation.
[325] The
plaintiff also claims $2,240 for the MRI brain and chest scan performed October
20, 2009. I am satisfied that expense was reasonably incurred in the
investigation of the plaintiff’s complaints of acute chest pain and cognitive
impairment. The MRI scan enabled Ms. Andrews’ medical care providers to
diagnose her fractured sternum and indicated that the plaintiff had not
suffered a traumatic brain injury as a result of the accident.
[326] The
plaintiff claims $36,798.19 for occupational therapy services provided by
Turning Point Rehabilitation between October 31, 2009 and the date of trial.
In addition to providing occupational therapy to Ms. Andrews, Turning
Point, acting under the direction of the plaintiff’s solicitors, managed or
coordinated all of the plaintiff’s multiple therapies. The Turning Point
invoices, which I have reviewed, contain multiple entries for e-mail, telephone
calls, and meetings with the plaintiff’s lawyers, paralegals and other health
care providers, time devoted to preparation for team meetings and other
administrative matters. The plaintiff called no witness from Turning Point to establish
the reasonableness of the amount claimed, or explain the efficacy of or benefit
to Ms. Andrews of the "indirect" or administrative services
provided by Turning Point. The plaintiff has not shown that all of the
out-of-pocket expenses claimed for occupational therapy services were
reasonably incurred in order to restore Ms. Andrews to the position she
would have been in but for the accident. On my review of the Turning Point
invoices, about 60% of the amount claimed represents time and disbursements
incurred for one-on-one occupational therapy sessions with the plaintiff and
related travel, including the kinesiology provided by Turning Point. Sixty per
cent of the amount claimed is roughly $ 22,080. Bearing in mind the real
possibility that the plaintiff might have decompensated before the trial date
even if the accident had not occurred, and would then have required
occupational therapy in any event I find that the reasonable allowance for this
item is 50% of $22,080, which I have rounded to $11,000.
[327] Ms. Andrews
has claimed $2,352.25 for cab fare between February 28, 2011 and November 30,
2012 to attend her various treatments. In addition, the plaintiff has claimed
mileage, at 50 cents per kilometer in the amount of $1,417.88 for visits to her
physiotherapists, yoga classes, a fitness centre, her family doctors and
treating psychologists. Some of the mileage and taxi fare claimed relates to
travel for counselling sessions and other attendances for treatment that were
not attributable to the accident. I would allow the plaintiff $1,000 for her
taxi fares and $700 for mileage.
[328] I allow
the claim for yoga in the full amount of $142.80, but do not allow the amounts
claimed for gym membership. The latter expenses were incurred at a time when
the plaintiff was not following a regular exercise regime. I am not persuaded
that the plaintiff derived any benefit from this expense.
[329] Finally, I
would allow $350 of the $672 claimed for the clean-up or "de-cluttering"
of the plaintiff’s home, recognizing that she would likely have incurred some
of this expense in any event.
CONCLUSION
[330] To
conclude, damages are awarded as follows:
(a) Non-pecuniary damages $
85.000.00
(b) Past loss of earning capacity $
84,000.00
(c) Future loss of earning capacity $150,000.00
(d) Cost of future care $
16,000.00
(e) Special damages $
31,386.60
TOTAL: $366,386.60
[331] This award
is subject to a reduction for failure to mitigate of 10% on non-pecuniary
damages. Accordingly, after that deduction is made, the total award of damages
is $357,886.60.
DEDUCTIONS AND COSTS
[332]
Counsel have requested that any matters relating to deductions for
advances, amounts deductible pursuant to s. 83 of the Insurance
(Vehicle) Act, any tax gross-up, and costs all be addressed following the
delivery of these Reasons. Accordingly, counsel are at liberty to set a
hearing date, through the Registry, to address those matters.
PEARLMAN J.