IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141103

Docket: M128481

Registry:
New Westminster

Between:

Harjot Khosa and
Arvinder Khosa

Plaintiffs

And

Fares
Kalamatimaleki, J.K.H. Transport Ltd.,
Dylan Maltby and Foundex Explorations Ltd.

Defendants

Before:
The Honourable Mr. Justice A. Saunders

Reasons for Judgment

[1]            
The plaintiff Harjot Khosa, a now 38 year-old licenced practical nurse,
wife and mother of two children, was involved in a significant motor vehicle
accident on February 5, 2009. Liability is admitted. Ms. Khosa alleges
that she continues to suffer physical and psychological injuries, and brings
this action for damages.

Background

[2]            
Ms. Khosa was born in December 1976 in Punjab, India. Both her
parents were elementary school teachers, and so she was raised in an environment
in which education was valued. She graduated from Punjab University with a
Bachelor of Science degree in 1996.

[3]            
That same year Ms. Khosa and her husband married. He had earlier
immigrated to Canada, and was able to sponsor her immigration; she moved to
Canada in the end of November 1996, and is now a Canadian citizen.

[4]            
Once in Canada Ms. Khosa took ESL classes to improve her language
skills. She then enrolled in the medical laboratory assistant program at
Vancouver Community College (“VCC”), graduating in 1999. She intended then to
pursue a career in nursing, however her next step of achieving her credentials
as a Licenced Practical Nurse (“LPN”) were interrupted by two pregnancies. Her
son was born in 2000, and her daughter in 2004.

[5]            
In March 2005 Ms. Khosa was admitted to the LPN program at VCC. She
graduated from the program one year later, with good grades. At this time her
intention was to work as an LPN for a couple of years, and then continue her
education and obtain her Registered Nurse (“RN”) designation. She testified
that her husband was supportive of this goal. It was important to her in terms
of the status of obtaining RN credentials, and in financial terms as well.

[6]            
Within a couple of months of graduating Ms. Khosa obtained a casual
on-call position as an LPN with Surrey Memorial Hospital. Beginning in 2007 she
also worked part-time in the medical unit of Richmond General Hospital, and
part-time in the outpatient clinic at B.C. Women’s and Children’s Hospital.

[7]            
In May 2008 Ms. Khosa obtained a regular part-time position as an
LPN at Sunny Hill Health Centre for Children. This was a 0.84 Full Time
Equivalent position, which entailed her working 8-hour or 12-hour shifts. She
also had some opportunities to work overtime. She continued holding down her
second job as a casual LPN with Women’s Hospital; she testified that in total,
she was doing more than a full-time nurse.

[8]            
The work at Sunny Hill was physically and emotionally demanding. The patients
ranged in age from infants to 15 or 16 year-olds. The patients suffered from a
variety of complex medical conditions including genetic conditions and brain
injuries.

[9]            
Ms. Khosa would frequently be tired at the end of a shift, but
still made time for her husband and her children. She and her husband would enjoy
walking together every day after dinner.

Accident

[10]        
The accident occurred on a weekday morning, when Ms. Khosa was
driving to work. She had been called in to work overtime. Driving down Oak
Street, she stopped for a traffic light at 41^st Avenue. She was in
the curb lane. There was a small truck immediately in front of her, and a large
semi-trailer was in the lane immediately to her left. The truck ahead of her
turned right onto 41^st, and then the semi next to her started to
follow it, turning to the right from the middle lane of Oak Street. The rear of
the trailer impacted the left side of Ms. Khosa’s car; her driver’s side
window shattered, showering her with glass fragments, and her head hit the back
of the car seat. Her car was snagged by the trailer, and was dragged around the
corner and some distance down 41^st. She was helpless and terrified. She
had no control over her vehicle, and she thought she was going to die.

[11]        
The car eventually came free of the trailer and came to rest, as she
recalls, on the sidewalk. A crowd gathered. An ambulance arrived, followed by
the police. There was glass all over her body, and she was bleeding from her
forehead, her left arm and her left leg. The police called her husband, who
came to the accident scene and drove her straight to her family doctor.

Injuries

[12]        
Ms. Khosa suffered moderate soft tissue injuries, initially causing
significant pain in her neck and down her whole left side.

[13]        
On the advice of her family physician Ms. Khosa underwent massage
therapy for six to eight weeks. This was followed by a variety of treatment
modalities: a three-month course of physiotherapy; a further period of massage
therapy following an unsuccessful attempt at returning to work in the fall of
2009; an active rehab exercise program in 2010, followed by her continuing to
do exercises at home; two trials of acupuncture, in the summer and fall of
2011; and, prolonged use of Tylenol 3 and anti-inflammatories as required.

[14]        
Ms. Khosa’s arm, shoulder and leg pain resolved fairly quickly, but
despite the ongoing treatments she has been left with frequent neck pain and headaches,
and intermittent low back pain, which persist to this day.

[15]        
She has also sustained psychological injury. Following the accident she
had nightmares, she would ruminate on the accident and her feeling of
helplessness, and she would experience what she describes as “flashbacks”. As
discussed below in more detail, she has been diagnosed as suffering depression
and anxiety, and has sought psychiatric and psychological treatment.

[16]        
Ms. Khosa has attempted graduated return-to-work (“GRTW”) on
several occasions:  from September 26 to October 6, 2009; from April 4 to April
19, 2010; from August 23 to 29, 2010; and finally from November 8 to December
31, 2012. The April 2010 attempt was interrupted by Ms. Khosa needing to
undergo surgery for a pre-existing ear problem, unconnected with the accident. None
of these GRTW attempts was successful. On each occasion, Ms. Khosa felt
unable to perform her duties due to her physical, cognitive and/or emotional
issues. She had great difficulty concentrating. She was unable to tolerate
patients who were crying or suffering; she would feel like she wanted to run
away. She also found herself unable to tolerate the sight of a patient covered
with blood. She felt an overall loss of confidence.

[17]        
The court heard testimony from three co-workers, who gave compelling
evidence as to Ms. Khosa’s apparent limitations during the attempts at
GRTW. Ms. Khosa would appear to be easily overwhelmed, unable to
communicate effectively, unable to multi-task, and unable to perform routine
nursing tasks such as tube-feeding, administering medications or even dressing
patients. She was also, because of her physical limitations, apparently unable
to participate in lifting and transferring patients, even with the assistance
of lift devices.

[18]        
When the final attempt at GRTW was unsuccessful, Ms. Khosa stayed
home for a period of time, and then was able to secure a permanent part-time
positon commencing the end of May 2013, working days-only as a nursing
assistant at the outpatient clinic of Children’s Hospital. This is a 0.70 FTE
position. Her rate of pay is lower, in that she does not enjoy shift premiums and
she does not have opportunities for overtime. She testified to feeling at times
ashamed that she is unable to do more. She has abandoned her plan to obtain her
B.Sc. in Nursing and to pursue a career as an RN.

[19]        
At present, Ms. Khosa does not like to go into public places. She
no longer feels able to socialize with family and friends; she and her husband
now rarely go out. She feels that because of her neck pain and headaches she can
no longer perform the household duties she used to undertake. Her relationship
with her husband has become strained; they quarrel frequently. She does not
like driving, as she is fearful of being involved in another accident; she
limits her driving to commuting to and from work, and occasionally driving to
their temple. She has suffered from nightmares of the accident and engages in
obsessive negative thinking.

[20]        
Ms. Khosa feels that she cannot give her children the support and
care they deserve. She no longer has the concentration required to assist them
with their homework. She is short-tempered around them.

[21]        
She and her husband had planned to have another baby, but given her
injuries and her depression she feels that raising another child would be
beyond her. She feels sad about this.

[22]        
Overall, the impression left by Ms. Khosa was of someone who is
significantly depressed and overwhelmed by her current circumstances.

[23]        
Ms. Khosa’s husband testified. He described her as having been,
prior to the accident, happy, intelligent and sociable. He described the
changes in his wife’s personality and her lack of energy. Asked what change in
his wife stands out the most, he identified issues with her memory. He
testified that prior to the accident, she did “everything” for the children,
and did all of the housework: “She never let me down”. Now, he has had to
increase his hours at work (as a bus driver with Coast Mountain Transit) to
make up for the reduction in his wife’s income, and in addition has taken on
the burden of the housework and grocery shopping. He drives her to medical
appointments, on average about 4 times a month. I found Mr. Khosa to be a
completely straightforward witness, entirely credible. His evidence as to the
changes within the plaintiff’s family brought on by her injuries made a very
strong impression.

[24]        
The Court also heard testimony from Mr. Khosa’s sister, Ms. Bains.
Generally, she corroborated the testimony of Ms. Khosa and Mr. Khosa
as to the changes in the plaintiff’s personality and the apparent changes in
her physical abilities. Prior to the accident, Ms. Bains knew Ms. Khosa
as someone who happily participated in family gatherings and loved to take part
in food preparation. For some time following the accident, Ms. Khosa would
not do any cooking; lately, she has seen Ms. Khosa make some contribution,
for example doing a little salad preparation. However, Ms. Bains’ mother
has effectively taken Ms. Khosa’s place in assisting Ms. Bains with
cooking. Ms. Bains testified that Ms. Khosa seems withdrawn. She has
observed that Ms. Khosa will participate in social occasions for perhaps
15 minutes, and will then leave and go to her bedroom. She commented that Ms. Khosa
gets upset and yells at her family when the noise level is more than she can
tolerate.

Medical Evidence – Plaintiff’s Expert Witnesses

Dr. Hamza

[25]        
Ms. Khosa has been treated since the accident by her family
physician, Dr. Essam Hamza. He has been Ms. Khosa’s physician since
2005. His opinions are set out in three separate reports, filed in evidence. In
the final report, dated December 10, 2013, Dr. Hamza wrote:

I believe Ms. Khosa initially suffered significant Grade
II Soft-Tissue injuries which resulted in daily pain and muscle stiffness in
her neck, shoulders, and lower back. Originally there were some lacerations and
pain along her face and legs from broken glass. She also suffered daily
headaches and sciatic type pain down her legs. She complained of tingling/paraesthesia
type symptoms down her left arm as well.

Ms. Khosa also suffered from post-traumatic stress
disorder and has problems with increased anxiety especially with driving,
travelling and working. Her nightmares added to the muscle pains and interfered
with her sleep causing her to infrequently need sleeping medication such as
Zopiclone. She also has been diagnosed with major depression and generalized
anxiety secondary to the MVA and injuries.

I believe that Ms. Khosa is a very honest patient with
her complaints and was very motivated to recover. She has responded well but
not completely to the treatment protocol of physiotherapy, exercises,
counselling and psychiatrist visits.

We have tried to stay away from
pain medications and especially narcotics as much as possible to avoid
dependence and a chronic pain syndrome. She has been very compliant and uses
very little pain medication on an infrequent basis.

[26]        
Dr. Hamza concluded this report with the observation that
physically Ms. Khosa had “improved tremendously”, and could return to work
as an LPN in a light-duty environment.

Dr. Cameron

[27]        
At the request of her counsel, in July 2009 Ms. Khosa had a
neurological evaluation conducted by Dr. Donald Cameron. His opinion at
that time, five months post-accident, was that Ms. Khosa was still fully
disabled due to musculoskeletal and soft tissue injuries sustained in the
accident. He noted that an MRI scan of her cervical spine indicated reversal of
the normal cervical lordosis, due to muscle spasm resulting from the soft
tissue and musculoskeletal injuries she had sustained. He found no evidence of
injury to her central or peripheral nervous system.

Dr. Stewart

[28]        
A physiatrist, Dr. R. Nairn Stewart, saw Ms. Khosa at the
request of her lawyers, once in June 2010 and a second time in September 2013. The
evidence given by Ms. Khosa at trial as to her condition was consistent
with the history recorded by Dr. Stewart in these reports. These reports
helpfully summarize Ms. Khosa’s condition on the occasion of each
assessment.

[29]        
In the report that followed the first of the two assessments, dated
August 25, 2010, Dr. Stewart, summarizing Ms. Khosa’s history, wrote:

She has intermittent pain but a constant feeling of heaviness
in her neck. She said that her neck is always tense. Standing for a long time,
lifting things, and maintaining one position too long all aggravate the neck
pain. Turning her head to drive and concentrating to do so will also aggravate
her neck pain and precipitate a headache.

The headaches are related to the neck pain. She was unable to
estimate the frequency of her headaches. She said that her head always feels
heavy in association with tension in her neck. With a headache, “I have to lie
down if it’s really bad … can’t do nothing, can’t even talk.”  She will lie
down with heat on her neck, take Tylenol No. 3 and do stretching exercises.
Having her hair tied back will make a headache worse so she will take out the
tie.

She has experienced dizziness since the accident and it has
not improved over time. The dizziness will occur when she is sitting, standing
or exercising and, “It mostly happens when my headache is worse.”  The
dizziness begins suddenly and involves both light headedness and a spinning sensation.
The dizziness affects her balance and she will sit down until it passes. She
said, “Sometimes there’s black in front of my eyes if I’m dizzy.”  She tried
taking medication for vertigo after the accident but did not find it
particularly helpful. Very rarely she experiences nausea in association with
dizziness. The dizziness lasts from a few seconds to a minute or two.

Since the accident she has
noticed difficulty concentrating to read and to drive. If she tries to
concentrate she will become tired, her neck will become very tense and stiff,
and she will get a headache. She said, “Since the accident I can’t watch T.V. I
was really fond of watching dramas or movies before.”  She can now read for
only 10 minutes. She is unable to concentrate to help her son with his homework.
Also, “I’m really forgetful” since the accident. She will forget to lock the
door or will forget that food is cooking on the stove; she has burned food on
occasion.

[30]        
Dr. Stewart’s opinion at that time was that Ms. Khosa was still
suffering the effects of soft tissue injuries to her neck and back sustained in
the February 5, 2009 accident, which symptoms were being aggravated by
increased muscle tension. Dr. Stewart felt that the dizziness was likely
due to a vestibular injury. She recommended that Ms. Khosa be given an
opportunity to participate in a chronic pain management program. She felt it
appropriate that Ms. Khosa continue to follow an active exercise program
on her own. She was optimistic that Ms. Khosa would undergo further
improvement over the next year of more, though she noted it remained to be seen
whether Ms. Khosa would be able to return to her physically demanding job
at Sunny Hill, and whether she would be able to return to all of her usual
housekeeping activities.

[31]        
Dr. Stewart’s second report dated December 28, 2013 is based on her
interview and examination of Ms. Khosa conducted on September 3, 2013. Dr. Stewart
had not reviewed any further medical or medical-legal reports. (This means that
she would not have been made aware of the opinions expressed by Drs. Gandhi and
Estrin – described in further detail below – as to Ms. Khosa’s
psychiatric/psychological condition and prognosis.) Ms. Khosa was
continuing to experience neck pain and stiffness “at some level most of the
time”. Headaches associated with neck pain would occur every few days, and she
would take Advil or Tylenol No. 3. She was also continuing to suffer from
intermittent low back pain.

[32]        
Dr. Stewart was of the opinion that Ms. Khosa was continuing
to suffer the effects of her soft tissue injuries and a vestibular injury. Given
the persistence of symptoms over nearly five years since the accident, Dr. Stewart
was of the opinion that Ms. Khosa would continue to experience all of her
current symptoms and limitations resulting from the motor vehicle accident in
the future. She felt it unlikely that Ms. Khosa would be able to return to
her usual job as an LPN because of the physical demands of the job. She would
likely continue to be limited to lighter work, with the flexibility of changing
her work tasks and her bodily position throughout the work day.

[33]        
Dr. Stewart’s reports make mention of Ms. Khosa’s
psychological issues and treatment, but by and large do not address the
possibility of a connection between those issues and her subjective symptoms.
The one exception to this is a recommendation, made in her first report, that Ms. Khosa
have psychological counselling in respect of both her PSTD and pain management.

[34]        
Dr. Stewart’s second report records Ms. Khosa ‘s history of
having negative dreams, of ruminating on negative thoughts, and of being
subject to anxiety and panic attacks. Ms. Khosa is said to have reported
that:

…the psychological sessions make
her feel more in control of her emotional symptoms for approximately two days,
but she then reverts to the same fears and reactions.

[35]        
Dr. Stewart underwent cross-examination at trial. She agreed that
there were no objective findings on her examinations of Ms. Khosa to
support the diagnosis made, other than limitations in range of motion.

[36]        
Dr. Stewart also testified that she did not get the impression that
Ms. Khosa had been self-limiting her movements, and did not get the
impression that Ms. Khosa was giving anything less than full effort on
strength testing.

[37]        
Dr. Stewart disagreed with the suggestion that objective findings
should be given greater weight than subjective findings; many people, she said,
have disabling pain accompanied by objectively normal presentation. She agreed
that subjective symptoms can be influenced by psychosocial factors, but said
that objective symptoms can be, too. It was suggested to Dr. Stewart that
subjective complaints can be influenced by financial factors; she replied that
she supposed this could be true, if there are psychological issues present, but
her experience is that most people want their lives back.

[38]        
There has been no investigation by any specialist of the vestibular
injury Dr. Stewart purports to have identified.

Ms. Walsh

[39]        
Ms. Khosa has also tendered a Functional Capacity Evaluation report
authored by Ms. Darla Walsh, who examined Ms. Khosa in November 2011.
Ms. Walsh’s opinion was that Ms. Khosa met the physical demands of
performing a job within the “light” category, and would not be able to return
to her former position at Sunny Hill. It was Ms. Walsh’s opinion that Ms. Khosa
undertook the physical effort testing at a near-full level. With respect to
reliability, her interpretation of the Functional Capacity Evaluation test
results was that there were no overt discrepancies between Ms. Khosa’s
reported disability and the abilities demonstrated on functional testing.

Dr. Gandhi

[40]        
As noted, in addition to the physical injuries, Ms. Khosa has suffered
significant psychological issues.

[41]        
Ms. Khosa’s family physician referred her to a psychiatrist, Dr. Amita
Gandhi, in January 2011, and he saw her on seven occasions up to September 21,
2011. There was then a re-referral in September 2012, and up to the time of
trial he had been seeing Ms. Khosa about once a month since then.

[42]        
Dr. Gandhi’s conclusions as set out in his report dated November
24, 2011, were as follows:

Ms. Khosa presented with symptoms consistent with the
diagnosis of Post-Traumatic Stress Disorder, Major Depression and chronic
physical pain. Ms. Khosa was injured in a motor vehicle accident on
February 5, 2009. Subsequently, she developed physical, emotional and cognitive
difficulties. Ms. Khosa likely developed a pain disorder associated with
both physical and psychological factors.

Emotionally, Ms. Khosa developed a Post-Traumatic Stress
Disorder and Major Depression. She had sleep disturbances, nightmares,
hypervigilance and flashbacks related to this motor vehicle accident. She was
not able to function at work and take care of her household and family
responsibilities. She had suicidal thoughts and feelings of hopelessness. She
developed marked self-doubt and this affected her self-esteem and confidence. She
was feeling demoralized. These changes caused significant distress and overall
impairment in her psychosocial functioning.

Cognitively, Ms. Khosa did experience marked
difficulties with her attention, concentration. She did experience worsening of
cognitive function when she had exacerbation of pain, fatigue and increased
level of stress. She did continue to experience physical pain, which further
perpetuated the depression and anxiety, and affected the response to the treatment
and her recovery.

Based on my assessment up to the
point Ms. Khosa had follow up until September 21, 2011, she was suffering
from Post-Traumatic Stress Disorder and Major Depression in partial remission. There
was relative improvement in the symptoms of anxiety and depression. She was
planning to return to work. Although Ms. Khosa was making progress, she
was not functioning at her pre-morbid level of emotional, cognitive and
psychosocial functioning. There was an overall decline in her quality of life.

[43]        
Dr. Gandhi’s opinion as to Ms. Khosa’s prognosis was as
follows:

In my opinion, Ms. Khosa
will need treatment with an anti-depressant along with individual therapy to
help her deal with the losses and changes in her life due to the impact of this
motor vehicle accident and to help her regain her self-confidence. Prognosis
from a psychiatric point of view can be favourable with adequate treatment. However,
there is also a possibility that Ms. Khosa may remain emotionally
vulnerable and at risk to develop an exacerbation of anxiety and depression in
the event that she is exposed to any further trauma.

[44]        
In cross-examination, Dr. Gandhi clarified that the further
treatment that he felt could result in progress could include both medications
and cognitive behavioural therapy (“CBT”).

[45]        
No more recent psychiatric evaluation is available.

Dr. Estrin

[46]        
Ms. Khosa has sought counselling from Dr. Terry Estrin, a
registered psychologist. Two reports authored by Dr. Estrin are in
evidence.

[47]        
The first, dated November 22, 2011, reported the results of two
assessments undertaken in September and October 2011, and a first treatment
session conducted on November 7, 2011. Dr. Estrin recommended that Ms. Khosa
engage in bi-weekly therapy sessions. He remarked:

If EMDR [Eye Movement
Desensitization and Reprocessing] proves too difficult, I suggest gradual,
imaginal exposure combined with relaxation training. Because she is able to
drive (with considerable discomfort) it may be possible to combine exposure and
behavioural activation.

[48]        
The second report, dated December 9, 2013, described the results of 13
treatment sessions conducted between December 2011 and July 2013.

[49]        
Dr. Estrin explained that Ms. Khosa’s ability to undergo more
frequent treatment had been limited by her finances. He said:

…These sessions were primarily
Supportive in nature, with a structured, Behavioural Activation [sic]
component, and a trial session of EMDR therapy to address PTSD. Because Ms. Khosa
was only able to afford therapy sessions on a monthly or bi-monthly basis, her
sessions constituted a check-in to evaluate and provide support rather than a
continuous treatment schedule. However, Ms. Khosa made up for that with
her engagement and motivation, and her willingness to seek out new strategies
to restore wellness.

[50]        
At trial, under cross-examination, Dr. Estrin described how on two
occasions his attempts to treat Ms. Khosa’s Post-Traumatic Stress Disorder
(“PTSD”) symptoms with EMDR had to be halted because of the intensity of her
reaction to recalling the motor vehicle accident. During the first treatment
session on November 7, 2011 her reaction, subjectively, was a “9 out of 10”;
she was “absolutely overwhelmed” and could not continue with the therapy. He
did not try that treatment technique again until June 2012; on that occasion
her subjectively-rated distress was 6 out of 10, but she remained “stuck in the
memory” and was unable to actively participate in the therapy process.

[51]        
Dr. Estrin testified that only utilized CBT briefly, during one of
the sessions with Ms. Khosa. I infer from his second report that this was
on the occasion of the January 23, 2012 session, in respect of which he stated:

As a means of building upon her
gains in a structured way that she could self-implement, I showed Ms. Khosa
how to complete a CBT thought record form.

[52]        
Dr. Estrin’s note of the July 9, 2012 session records Ms. Khosa
as having told Dr. Estrin that she was

…getting some benefit from
Cognitive Behavioural exercises taught by her Occupational Therapist.

In cross-examination, Dr. Estrin elaborated on
this, stating that Ms. Khosa’s OT, from what she told him, did do “a fair
bit” of CBT with her, “with good effect”.

[53]        
This evidence of Dr. Estrin appears to point to an evidentiary gap
in the plaintiff’s case. No mention was made by Ms. Khosa in her evidence
of any form of psychological treatment having been rendered by an occupational
therapist. There are no records of any such treatment in evidence.

[54]        
(I do note that the witness list on the plaintiff’s trial brief refers
to two occupational therapists, a Ms. Lorraine Phan and a Ms. Ayisa
Remtulla, who were stated to have authored reports dated, respectively, July
27, 2009 and June 21, 2012. Neither of them testified, Ms. Khosa made no
reference to them in her testimony, and their reports and records are not in
evidence. The plaintiff’s list of special damages also includes a claim for
nine visits to “Santosa O.T.” in July – September 2012; this may or may not
have been the workplace of Ms. Phan and Ms. Remtulla, but no records
from this institution are in evidence, either. The defence psychology expert Dr. Koch
notes in his report that he was provided with a copy of a June 21, 2012 report
of “Santoza Occupation Therapy”, that was included in his copies of the medical
records of the GP, Dr. Hamza. Dr. Koch’s brief description of that
report does not make any reference to CBT or other psychological treatment.)

[55]        
There were six further sessions with Ms. Khosa described in Dr. Estrin’s
second report, following the July 9, 2012 session in which Ms. Khosa
described the CBT exercises taught by her OT, from August 2012 up to July 2013.
Dr. Estrin’s report makes no mention of CBT treatment having been
discussed. It is not clear whether Dr. Estrin assumed that Ms. Khosa
was continuing the CBT exercises.

[56]        
In July 2012 Dr. Estrin referred Ms. Khosa to Swingle and
Associates for neurofeedback treatment. His second report states:

At the time of her November 6,
2012 session, Ms. Khosa had completed 11 treatment sessions at the Swingle
clinic. She stated that she was now less anxious, more social, and more
motivated to return to work.

[57]        
No reports or records from Swingle and Associates are in evidence.

[58]        
Dr. Estrin records Ms. Khosa as having stated during the
January 8, 2013 session that she had hoped to continue with the neurofeedback
“which by her account had reduced her anxiety” but she could no longer afford
it.

[59]        
At this time, Ms. Khosa was continuing to report headaches that
seemed to be present independent of her (variable) level of anxiety. Dr. Estrin
suggested that Ms. Khosa review her hospital discharge report “to explore
the possibility of TBI” [traumatic brain injury].

[60]        
Following his final session with Ms. Khosa on July 22, 2013, Dr. Estrin
made note of the persistence of Ms. Khosa’s symptoms of lack of
concentration, and her purported inability “to remember the moment of impact
during the accident”, and wondered whether Ms. Khosa had sustained a head
injury. He contacted one of Ms. Khosa’s lawyers, who was reported to have
“concurred that a neuropsychological assessment would be helpful”.

[61]        
Dr. Estrin’s second report concludes with the following statements
of her prognosis:

Regarding prognosis, it is my opinion that Ms. Khosa’s
fearful avoidance (characteristic of PTSD) had become an impediment to treating
the original cause of her present condition. However, it is quite likely,
that with ongoing structured and supportive therapy (i.e. Cognitive
Behavioural Therapy and Behavioural Activation) such as was provided by her
Occupational Therapist, she may be able to eventually engage in trauma
therapy (EMDR for example) that could significantly reduce and
desensitize her anxiety. Given the persistence of Ms. Khosa’s
concentration difficulties, the question remains as to whether this and possibly
other symptoms are the result of neurological damage sustained in the original
accident.

At the time of her last session, Ms. Khosa continued to
be disabled with respect to her ability to work at her former capacity (i.e.,
full time, dealing with sick patients, able to multitask), and it appears that
she will remain so until multiple issues of stress tolerance and
attention/concentration are resolved. As of July 2013, Ms. Khosa reported
that she was able to engage in part-time nursing work in a low-stress
environment with limited duties. With respect to outcome, the worst-case
scenario is that she will never be able to perform her job as Licensed Nurse
(in her former capacity), which will in turn prevent her from advancing her
career as she had hoped. It appears that the best-case scenario – which is to
say her ability to return to work in her former capacity – depends not only on
the resolution of her anxiety symptoms, but also improvement in her
(considerable) difficulties with attention and concentration.

[Emphasis added.]

[62]        
(I note that the “best case” scenario would appear to be not merely a
return to work in her former capacity, but regaining the ability to advance in
her career.)

[63]        
Dr. Estrin did not attempt to quantify the relative likelihood of
his “best case” and “worst case” scenarios.

[64]        
In cross-examination, Dr. Estrin agreed with the suggestion of the
defence expert Dr. Koch that Ms. Khosa may benefit from CBT –
provided, he said, that she finds a compatible supportive female therapist. He
explained that Ms. Khosa had obtained good results from CBT with a female
OT; and also, had obtained good results from working through an on-line meditation
program called Brahma Kumaris – really, he said, a form of CBT – which program
has a female narrator. Dr. Estrin testified that the “stimulus value” of
having a supportive female presence seemed to make a lot of difference for Ms. Khosa.

[65]        
I did not infer from this answer that Dr. Estrin felt himself, as a
male, incapable of rendering CBT.

[66]        
Dr. Estrin did not assert that CBT would only be effective in
respect of Ms. Khosa’s depression, as opposed to her PTSD. He provided no
explanation as to why he had not referred Ms. Khosa to a female psychologist
trained in CBT. These points were not explored on cross-examination. He
provided no explanation as to why he had not engaged in more thorough,
structured CBT with Ms. Khosa; I inferred from his testimony that the
reason for this was the limited “supportive” nature of his relatively
infrequent sessions with her.

Medical Evidence – Defendants’ Expert Witnesses

[67]        
The defence called two expert witnesses.

Dr. Grypma

[68]        
Dr. Grypma is an orthopedic surgeon whose practice has been
restricted for the past several years to conducting assessments.

[69]        
Dr. Grypma conducted a physical examination of Ms. Khosa on
November 24, 2009, and prepared a report. Aside from her subjective complaints
of pain, the orthopedic physical examination was largely unremarkable, with the
exception of limited neck rotation to the left. Dr. Grypma noted several
Waddell’s signs, i.e. signs of no apparent organic basis, potentially
indicating a psychological component. His impression was of a soft tissue
injury to the neck and back with “significant functional overlay” present, i.e.
symptoms not based on any physical findings. He noted that Ms. Khosa’s
biggest complaints were her headaches and lack of concentration.

[70]        
Dr. Grypma stated that he saw no reason why Ms. Khosa could
not return to work through a work hardening program, active physiotherapy, and
a gradual return to work, with regard specifically to her orthopedic injuries.

[71]        
He stated that he could not explain why Ms. Khosa has taken so long
to recover, and that functional overlay may be playing a significant role. He
thought that her chances of permanent impairment were highly unlikely, and that
the probable time within which maximal recovery could be expected would be
within the following three to six months, assuming that she was fully
cooperative and motivated.

[72]        
In November 2011 Dr. Grypma was provided with copies of reports of
Drs. Hamza, Cameron, Stewart and Estrin, as well as Ms. Walsh’s
Functional Capacity Evaluation. He noted some inconsistency in Ms. Khosa’s
reports of lower back pain. She had told Dr. Grypma in November 2009 that
her lower back was no longer a problem. Dr. Cameron found normal back
range of motion in August 2009, and had described no complaints of lower back
pain or sciatic pain. Dr. Grypma therefore thought that any recurring low
back pain was less likely to be related to the motor vehicle accident than to
pre-existing osteoarthritis.

[73]        
With respect to the ongoing complaints of neck pain recorded in those
reports, Dr. Grypma remarked that he found these very unusual. He
reiterated his concern with respect to functional overlay. He also noted that
deconditioning and inactivity were possibly contributing factors. He thought it
unlikely that Ms. Khosa would benefit from any further passive treatment
such as physiotherapy, chiropractic, acupuncture or massage. The appropriate
treatment in his view was active rehabilitation.

[74]        
Dr. Grypma was provided with further plaintiff’s medical reports in
September 2013, which he reviewed. They did not change his opinion.

[75]        
On cross-examination, Dr. Grypma explained that he thought
inactivity was a contributing factor because Ms. Khosa had not been
working. However, he did not know how long or how often she had been on a GRTW
program. He also conceded that he did not know how long she had been on the
active rehab program.

[76]        
Dr. Grypma conceded that he was not aware of any issues of lack of
compliance or non-cooperation on the part of Ms. Khosa. He stated that he
was “a little bit concerned” with the non-organic signs, which had made him a
little concerned about her motivation.

[77]        
Dr. Grypma was cross-examined on the neurologist Dr. Cameron’s
opinion that the MRI scan of Ms. Khosa’s cervical spine revealed reversal
of normal cervical lordosis, due to muscle spasm resulting from the
musculoskeletal injuries sustained in the accident. Dr. Grypma felt he was
unable to comment on this.

[78]        
Dr. Grypma was also cross-examined on the statement made in his
first addendum report that the pain rating offered by Ms. Khosa on her
Functional Capacity Evaluation of about 2-4 in both her neck and back appeared
to be “fairly mild”. Dr. Grypma conceded that scores of 3 or 4 on the
Matheson Functional Pain Scale are not “fairly mild”.

[79]        
Dr. Grypma conceded the obvious point that Dr. Stewart had
seen Ms. Khosa in September 2013 and was therefore in a far better
position than he to assess her current condition. He would not defer to Dr. Stewart’s
recommendation that Ms. Khosa do no more than light duties, as he stated
that he does not have a clear idea of her current symptoms; however, he agreed
that this “would certainly be an option”.

[80]        
Dr. Grypma agreed that the “functional overlay” that he believes
may be playing a significant role could be explained by Ms. Khosa’s psychological
condition.

[81]        
In summary, other than pointing to the possibility of a non-organic, or
psychological, component to Ms. Khosa’s current level of physical
disability – an opinion apparently shared by both Dr. Stewart, who
recommended participation in a chronic pain management program in her 2010
opinion,  and Dr. Gandhi, who believes it likely that Ms. Khosa has
developed  a pain disorder associated with both physical and psychological
factors – I did not find Dr. Grypma’s opinion or his trial testimony to
contribute any meaningful insight into either the nature of Ms. Khosa’s
current condition or her prognosis.

Dr. Koch

[82]        
With respect to Ms. Khosa’s psychological condition, the defence
tendered the opinion of Dr. William Koch, an experienced clinical psychologist
who also serves as an adjunct professor with the University of British Columbia
and Simon Fraser University Departments of Psychology.

[83]        
Dr. Koch interviewed Ms. Khosa for three hours on November 20,
2013, and again for two hours on January 2, 2014. On both those assessments,
psychological tests were administered. Dr. Koch provided a comprehensive
report of his findings and opinion, dated January 3, 2014.

[84]        
In brief, Dr. Koch noted Ms. Khosa’s description of panic
attacks and agoraphobic avoidance, and her excessive worrying about her ability
to continue working, family finances, and her children’s health. Her scores on
the psychological tests, taken at face value, indicated that she was an:

…extremely distressed and
disabled individual with a diversity of mental health problems (anxiety,
somatic complaints, phobic avoidance, depression, disordered thinking and
emotional volatility greater than between 97 – 99% of the general population.

However, various issues with her test answers – for
example, possibly exaggerated or inconsistent answers – gave him some concerns
as to the validity of her responses. Given these concerns, he felt the test
scores were invalid and likely overstated her levels of distress and
disability.

[85]        
Dr. Koch felt it was impossible for him to determine from his
interview if Ms. Khosa met the criteria for a diagnosis of Generalized
Anxiety Disorder, as she was unable to provide “even rough estimates” of the
pervasiveness or frequency of her feelings of worry and other signs of tension.
He was also unable to determine that she met the criteria for a Major
Depressive Disorder or a Persistent Depressive Disorder. Ms. Khosa had
also described a wide variety of symptoms consistent with a “clinically
significant” PTSD; however, problems interpreting clearly her responses during
the interview had led Dr. Koch to have some concerns about the validity of
Ms. Khosa’s responses.

[86]        
Dr. Koch believed it was possible that Ms. Khosa was suffering
Panic Disorder with Agoraphobia; however, he listed four factors that reduced
his confidence in that diagnosis:

a)   
her denial of apprehension of panic attacks (as apprehension is one of
the diagnostic criteria for Panic Disorder);

b)   
her non-anxious presentation during the interview (as individuals with
the severe level of panic and avoidance that Ms. Khosa claimed to have are
typically visibly anxious);

c)    
her inability “to provide even an approximate date of onset for her
panics” (as this inability is unusual for Panic Disorder sufferers); and

d)    her “frequent
inability to provide examples of times she has avoided or escaped from
situations of which she endorsed avoidance”.

[87]        
Dr. Koch was not cross-examined as to whether these factors would
also reduce one’s confidence in a diagnosis of PTSD.

[88]        
As noted above, Ms. Khosa testified as to her negative feelings
during her GRTW attempts when she saw a patient or patients covered in blood. Dr. Koch
commented on the unusual nature of this reaction:

Although she denied fear of
injections, she reported moderate fears of seeing blood or having blood drawn,
noting that she will delay laboratory tests secondary to the latter fear. … Of
note, when asking her about her responses to exposure to blood she indicated
that she gets “scared” and “shaking, short of breath.” The reader should note
that blood/injury phobics have a paradoxical response to such exposure compared
to other phobic responses in that individuals with blood phobias typically have
a vasovagal response to exposure and are more likely to suffer lower blood
pressure and faint than have symptoms of hyperarousal. Thus, her description of
her blood phobia is unusual.

[89]        
Dr. Koch felt that she might meet the criteria for “Other Specified
Depressive Disorder: Depressive episode with insufficient symptoms”.

[90]        
With respect to test scores, Ms. Khosa scored very high on scales
related to Anxiety Somatic Problem, Anxiety Related Disorders, and Depression. This
was even bearing in mind significant concerns that Dr. Koch noted with
respect to the validity of her test responses.

[91]        
Those validity concerns “markedly” lessened Dr. Koch’s confidence
in any specific mental health diagnoses. However, Dr. Koch remarked that Ms. Khosa’s
invalid presentation did not necessarily mean that she had presented in an
invalid manner to other health professionals, such as her psychologist Dr. Estrin.

[92]        
Taking into account all of the data made available to him, including the
November 2011 report of Dr. Gandhi and Dr. Gandhi’s treatment notes
from 2011, and the November 2011 report of Dr. Estrin – neither the
December 2013 report of Dr. Estrin, nor Dr. Estrin’s notes of the
2012-2013 treatments were provided to him – Dr. Koch was of the opinion
that Ms. Khosa more likely than not was suffering from the following:

·       Specific
Phobia of motor vehicle travel (largely limited to driving) of moderate
severity;

·       a
Panic Disorder with Agoraphobia;

·       sub-clinical
depressive symptoms; and,

·      
a Somatic Symptoms Disorder: primarily pain.

[93]        
With respect to treatment recommendation, Dr. Koch stated:

Treatments for Specific Phobia
and for Panic Disorder have reasonable efficacy with as many as 70% of affected
patients showing marked improvement in 20 or fewer sessions of Cognitive
Behavioural Therapy targeting the patient’s specific fears.

[94]        
Dr. Koch was cross-examined as to the interview and formal
assessment process. He agreed that on the first day of assessment in particular
Ms. Khosa appeared fatigued. He agreed that it was possible that his
issues with some of her responses may have arisen due to his questions having
been unclear. He agreed that in ideal circumstances, test subjects should be
questioned closely as to what they mean by particular responses, if there is
any room for doubt or any apparent confusion. He explained that, due in part to
the nature of Ms. Khosa’s responses, they had problems getting through
everything in the time available, and so there was not sufficient time to carry
out a searching examination. It had appeared to him that there was an element
of randomness to her responses; he conceded that this could have been a
consequence either of fatigue or of just being tired with the whole testing process
and wanting to get out of there.

[95]        
Dr. Koch conceded that it was quite possible that his assessment of
Ms. Khosa reflected her status on those particular days, and nothing more
than that. He conceded that her presentation may also have been a unique
reaction to the assessment environment, as some people just do not acquit
themselves well on a particular day. He agreed that the test scores say nothing
about whether Ms. Khosa had been suffering from depression and PTSD up to
the date of the assessment.

[96]        
Dr. Koch stated that there is no good way of measuring for
malingering, i.e. the exaggeration or faking of pain. He said that even the
presence of Waddell’s signs on a physical examination (i.e. such as detected by
Dr. Grypma) may only show a wish to avoid body pain. He further stated
that he does not even trust his own subjective judgments as to the veracity of
test subjects. The psychological tests are very specific and have limited
utility.

[97]        
Dr. Koch conceded that Dr. Estrin and Dr. Gandhi, both of
whom have followed Ms. Khosa over a lengthy period of time, are in a good
position to have determined the validity of her presentation; the collection of
data and clinical impressions in therapy notes longitudinally, over time, are,
he conceded, very valuable. Dr. Koch stated that the only issue he would
take with Ms. Khosa’s doctors is that their notes might not be
sufficiently quantitative as to the frequency and intensity of her symptoms and
as to their consistency from visit to visit, those being hallmarks of mental
illness. I took this remark of Dr. Koch’s to be a reflection of his
preference for quantitative measures, as opposed to a criticism of Dr. Gandhi’s
and Dr. Estrin’s conclusions.

[98]        
I found nothing in Dr. Koch’s opinions or his testimony that would lead
me to doubt the veracity of Ms. Khosa’s complaints or to be concerned with
Drs. Gandhi and Estrin’s assessments of their validity.

Discussion

[99]        
The difficulties inherent in assessing damages in cases involving
plaintiffs who manifest little or nothing in the way of objective signs of
physical injury and whose presentation is complicated by psychological factors
are discussed at length in two leading decisions of the British Columbia Court
of Appeal, Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131, and Yoshikawa
v. Yu (1996), 21 B.C.L.R. (3d) 318. The principles were recently summarized
by Mr. Justice Williams in Dunne v. Sharma, 2014 BCSC 1106:

[92] As for the issue of psychological injuries, it is
recognized that such claims, where there is no tangible, objective support to
confirm the condition, and where the condition continues past what one might
expect to be a sensible or reasonable recovery, have to be carefully
scrutinized. In Yoshikawa v. Yu [citations omitted] Justice Lambert
discussed the conceptual approach to assessing such a claim. Without treating
the matter too simplistically, it seems to me that the considerations a trier
of fact must take into account include these:

a) Is the pain or discomfort or
unusual condition real? Is the plaintiff actually experiencing it?

b) The cause of the condition must
be genuinely related to the defendant’s wrongful act, not driven by any
improper motivation of the plaintiff, such as seeking sympathy or care for
care’s sake, or to gain compensation.

c) A claim will not be compensable
if the plaintiff could overcome the condition by exertion of his or her own
resources – willpower and determination. The court must be satisfied that the
plaintiff genuinely seeks to overcome the condition.

d) Expert medical or psychological
opinion evidence relevant to the issue should be carefully scrutinized and
considered by the court.

[93] That summarization is
neither elegant nor, I am sure, perfectly comprehensive. However, it attempts
to capture the court’s task: recognizing that psychological injuries can result
from the tortfeasor’s conduct, and because such injury is usually not
verifiable by the usual objective means, the court must examine all of the
circumstances and all of the evidence, with care, to ensure that such claims
are honest and real. The task is complicated as well because of the difficulty
with respect to predictions and prognosis in such matters.

[100]     In view of
the testimony of Ms. Khosa and her collateral witnesses, and the medical
evidence as I whole, I find on a balance of probabilities that she has been and
continues to be both physically and psychologically disabled from her previous
employment as an LPN, and from housework.

[101]     The only objective
evidence that could conceivably be related to Ms. Khosa’s complaints of
neck pain and associated headache are Dr. Stewart’s finding of decreased
neck range of motion, and evidence from the MRI of reversed cervical lordosis,
attributed by Dr. Cameron to muscle spasm. The plaintiff’s argument made
much of the latter, but there is no suggestion that this was anything more than
a temporary condition; the lack of any findings of spasm in the muscles associated
with the cervical spine, when Dr. Stewart examined Ms. Khosa in
September 2013, would seem to rule out reversed cervical lordosis as a
continuing issue.

[102]     Dr. Stewart
recorded Ms. Khosa as complaining that having her hair tied back would
aggravate a headache. This purported cause seems so slight that it is difficult
to imagine it having any effect whatsoever, unless there were psychological
factors present.

[103]     As noted
above, Dr. Gandhi has opined that Ms. Khosa “likely developed a pain
disorder associated with both physical and psychological factors”. I agree. The
current physical disability, I find, undoubtedly has a very significant
psychological component.

[104]     The
defence made little headway in cross-examining Dr. Stewart on her opinions
as to the nature and extent of the physical injuries. However, I am far from
being satisfied that Dr. Stewart adequately accounted for the
psychological issues that are undoubtedly at play. I give very little weight to
Dr. Stewart’s evidence.

[105]     Given the
persistence of the physical symptoms in the absence of any significant organic
objective signs I find it likely that the psychological factors are the
predominant cause.

[106]     Dr. Estrin
has raised the possibility of Ms. Khosa having sustained a traumatic brain
injury, as a possible explanation for her ongoing problems with attention and
memory. His concern appears to have been based, at least in part, on what he
reports as Ms. Khosa’s inability to remember the impact of the collision. Ms. Khosa
demonstrated no such difficulty when she testified. No concern as to the
possibility of TBI has been expressed by any medical doctor. I regard this as
nothing more than conjecture on the part of Dr. Estrin.

[107]     I find
that Ms. Khosa, on a balance of probabilities, is and has been impaired
largely due to psychological injuries caused by the accident.

[108]    
Ms. Khosa, I find, currently lacks the ability, at least
psychologically, to undergo any form of retraining or upgrade of her skills,
and, even if she could undertake the necessary training, currently lacks the
physical and psychological wherewithal to discharge the job duties of a
registered nurse. The plaintiff submits that:

The constellation of issues she
has around tasks requiring management of stress, memory, and concentration,
render her an unlikely candidate for completion of nursing school, let alone
meeting the job requirements for nursing set out by her employer – foremost
among those is the ability to safely administer medication and perform feeding
procedures on her young patients.

[109]     I agree.

[110]     It is also
apparent that Ms. Khosa’s injuries have had a profound impact on her
self-image and her relationships with her husband and children.

[111]     These
injuries, subjective though they may be, are real, were clearly caused by the
physical and psychological trauma of the accident, and are compensable.

[112]     Those are
my findings as to Ms. Khosa’s current condition. The more difficult
question in this case is what the future holds for her.

[113]     The
plaintiff’s arguments as to the appropriate range of non-pecuniary and
pecuniary damages are premised on the notion that Ms. Khosa’s condition is
permanent, i.e. that there is no reasonable expectation of improvement in her
symptoms and there are no positive contingencies to be attached to her claim
for loss of capacity. I do not find that the evidence supports that view of the
plaintiff’s condition.

[114]      The only
medical evidence that Ms. Khosa’s physical condition is unlikely to
improve comes from the physiatrist, Dr. Stewart. Although the defence made
little headway in cross-examining Dr. Stewart, I am far from being
satisfied that Dr. Stewart adequately accounted for the psychological
issues that are undoubtedly at play. I give very little weight to Dr. Stewart’s
opinion.

[115]     The
plaintiff’s counsel submitted in the course of oral argument that Ms. Khosa
has had “five years of the best treatment you can get”, including 16 treatments
with Dr. Estrin over the course of two years, “and she still hasn’t
recovered”. From that, I am asked to infer that the plaintiff’s current condition
has been and will continue to be resistant to treatment. I do not agree. Assessment
of the plaintiff’s injuries in terms of her prognosis is, in my view, severely
hampered by what can only be regarded as deficiencies in treatment, which in
turn have led to a serious gap in the evidence in respect of the plaintiff’s
prospects for improving. Specifically:

·      
Dr. Stewart recommended in August 2010 that Ms. Khosa
participate in a chronic pain management program; Ms. Khosa has not done
so.

·      
Dr. Gandhi recommended in November 2011 that Ms. Khosa
undergo psychotherapy; aside from the periodic supportive “check-in” sessions
with Dr. Estrin (which Dr. Estrin contrasts with a “continuous
treatment schedule”); she has not done so.

·      
From July to November 2012, Ms. Khosa underwent
neurofeedback treatment on the advice of Dr. Estrin, and reported that she
was less anxious, more social, and more motivated to return to work. The
treatment was discontinued before the November-December 2012 GRTW attempt, reportedly
due to its cost. Anxiety appears to have been a significant hurdle during that
GRTW; there is simply no telling how the plaintiff would have performed, if she
had been continuing to receive supportive, effective treatment while subject to
the stressors of the work environment.

·      
In January 2012 Dr. Estrin identified CBT as a useful
approach. Dr. Gandhi and Dr. Koch also endorse the use of CBT. And
yet, her only exposure to CBT therapy appears to have been through some
undocumented, apparently slight (and quite possibly superficial) work with an
occupational therapist and through an on-line meditation program. Despite Dr. Estrin’s
view as to the apparent effectiveness of this modality, she has had no CBT in a
structured professional therapeutic setting.

[116]     CBT and
neurofeedback have been identified as two treatment modalities to which Ms. Khosa
responds favourably. CBT has been recommended by her psychiatrist, her
psychologist, and the defence psychologist. Yet, with more than five years
having elapsed between the accident and the trial, her access to these
treatments has been limited.

[117]     Dr. Estrin’s
opinion as to Ms. Khosa’s prognosis – to the extent he provides an opinion
– is qualified. It was phrased in terms of impressions and possibilities. I
infer that the tentative nature of his opinion is more a result of the lack of
opportunity to engage with Ms. Khosa in anything more than a supportive
role, as opposed to reflecting the nature of her current condition.

[118]     Without Ms. Khosa
having undergone a course of CBT and without her having been able to continue
the beneficial neurofeedback treatments, it is not possible to conclude that
they will not, on the balance of probabilities, prove effective. If, as
recommended, she undergoes these forms of psychological treatment in the future
– or any other form of treatment she would be able to afford, following an
award of damages – there is no basis for me to conclude that these treatments will
not restore her to her previous level of emotional and physical health. Nor can
I even conclude that such an outcome is unlikely.

[119]     There is
inherent uncertainty in predicting future events, or in hypothesizing possible
outcomes, and for that reason such events and possibilities are not subject to
proof on a balance of probabilities. Rather, the court ‘looks into the crystal
ball’ and weighs the impact on the assessment of damages of substantially
possible contingent or hypothetical events, on the basis of their relative probability.
Nevertheless, such assessments must proceed from the baseline of a plaintiff’s
current condition; and that current condition is subject to proof on a balance
of probabilities. Before I could assign a low probability to the prospect of Ms. Khosa’s
health improving, I would have to be satisfied, on a balance of probabilities,
that her current condition is one that would not likely respond to treatment.
The evidence falls short of satisfying me that this is the case.

[120]     This is
not a matter of mitigation. Ms. Khosa’s access to structured CBT and continued
neurofeedback treatment appears to have been limited by her finances. The
defence has not contended that there has been any failure to mitigate, and I
make no such finding. But impecuniosity does not relieve a plaintiff of the
burden of proof.

[121]     Based on
the opinions of Dr. Koch and Dr. Gandhi, and on Dr. Estrin’s
observations as to her positive responses to the limited CBT and neurofeedback
therapy she has had, I find that Ms. Khosa’s current condition is such
that there is considerable uncertainty as to her prognosis. I am not satisfied
that her condition is such that marked improvement is improbable. As the
plaintiff has not met the onus of proving this, I find there to be a
probability of her responding favourably to psychological treatment. I find the
outcomes that could follow from such favourable response range, in ascending
probability, from only having her emotional well-being and her relationships
with her family restored, to becoming more physically active, to being able to
return to work as an LPN and possibly renew her planned pursuit of a career as
an RN. I also find, however, that even within the best of these potential
outcomes, Ms. Khosa may remain at least somewhat fragile and possibly susceptible
to further episodes of anxiety and depression. I also recognize the possibility
that the treatment period may be prolonged.

[122]     Given the
inherent uncertainty in her condition, I also find that there is a relatively
small, but still significant possibility of Ms. Khosa’s psychological
condition being resistant to further treatment, resulting in no meaningful
improvement. There is a very small possibility of her condition remaining so
persistent and so debilitating that she would end up removing herself from the
workforce entirely.

Non-Pecuniary Damages

[123]     In
argument, the defence relied primarily upon two cases, Tayler v. Loney,
2009 BCSC 742, and Wepryk v. Juraschka, 2012 BCSC 974. In Tayler,
the plaintiff’s ongoing soft tissue injuries were found to have been
contributed to by a psychological predisposition to the effects of trauma. The
trial judge concluded, however, that the plaintiff had not acted reasonably in
abandoning active exercise therapy, and that had she maintained such a program
she would probably have continued at least to suffer some degree of discomfort
indefinitely, but would have improved sufficiently to resume her full-time
occupation. Damages were awarded in the amount of $50,000.

[124]     That same
amount of general damages – $50,000 – was awarded in Wepryk. That case,
however, had nothing to do with psychological injuries. It was, rather, simply
a case of a plaintiff continuing – 3 ½ years following the accident – to suffer
pain to her neck, shoulder and upper back, with occasional headaches, all of
which limited her work as a hairdresser.

[125]     In the
defence’s written argument, a non-pecuniary damages award of $50,000 was
suggested. In oral submissions, it was conceded that this might be low, and
that an award in the range of $60,000 to $70,000 would be more appropriate.

[126]     The
position taken by the defence does not come anywhere close to recognizing either
the severity of Ms. Khosa’s symptoms or the significant possibility that
her condition, even with appropriate psychological therapy, will not improve.

[127]     The
plaintiff presented cases with non-pecuniary damages ranging from $180,000 to
$225,000: Wallman v. John Doe, 2014 BCSC 79; Felix v. Hearne,
2011 BCSC 1236; Zawadski v. Calimoso, 2011 BCSC 45; Young v. Anderson,
2008 BCSC 1306; Chowdhry v. Burnaby, 2008 BCSC 1337; and Kean v.
Porter, 2008 BCSC 1594. Most of these cases involve injuries that were
proven on the evidence to have been permanent or much more persistent than
those suffered by Ms. Khosa.  For example, in Wallman the plaintiff
was found to be suffering cognitive challenges that would likely last the rest
of his life; the plaintiff in Zawadski was suffering cognitive
impairment involving his long-term memory and executive functioning. In Young
the plaintiff had suffered a mild traumatic brain injury, leading to
significant cognitive impairment and associated psychiatric issues.

[128]     Of the
cases cited by the plaintiff the one dealing with injuries most analogous to those
in the present case is Chowdhry. As a result of the accident, the
plaintiff in that case had been rendered “essentially catatonic” for the first
six months following the accident. His physical injuries had largely resolved
by the date of trial, three years post-accident, and a concussion injury was
found not likely to have led to persistent or long-term symptoms. Significant
psychiatric symptoms were continuing, and although the court accepted that the
plaintiff would continue to make improvements, his PTSD and depression would
likely continue to give him problems for the rest of his life. Being 67 years
old, he was “at an age at which neither the body nor the brain is particularly
resilient” (para. 37), and his mental state would remain too fragile for
re-employment. He was awarded general damages of $200,000.

[129]     Ms. Khosa’s
prospects are considerably more favourable.

[130]     Bearing in
mind both the probability of eventual recovery and the possibility of
persistent symptoms into the future, and having regard to the non-exhaustive
list of factors outlined in Stapley v. Hejslet, 2006 BCCA 34, I assess
her non-pecuniary damages at $140,000.

Loss of Earnings

[131]     A
plaintiff is entitled to be restored to the position he or she would have been
in but for the defendant’s negligence, so far as that can be done with a
monetary award. This 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”: see Rosvold v. Dunlop, 2001 BCCA 1, at para. 11.

[132]     Though
pre-trial losses are often spoken of as if they are a separate head of damages,
e.g. “past loss of income” or “past wage loss”, it is clear that both pre-trial
and future losses are properly characterized as a component of loss of earning
capacity: see Rowe v. Bobell Express Ltd., 2005 BCCA 141.

[133]     Where claimed past losses are derived from something other than a
measurable, conventional stream of income, or where the evidence establishes a
significant possibility that but for an accident, a plaintiff would have
pursued other avenues of earning income, damages must be assessed on the basis
of the “crystal ball” approach referred to above, with the impact of reasonably
possible hypothetical past events being weighed on the basis of their relative
probability. The same process applies with respect to future losses; contingent
events are accounted for on the basis of their relative likelihood: see Smith
v. Knudsen, 2004 BCCA 613, at para. 29. The general principles
involved in the assessment of earning capacity claims included the following:

·      
The task of a court is to assess damages, rather
than to calculate them mathematically: Mulholland (Guardian ad litem of) v
Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.), at para. 43;

·      
Allowances must be made for the contingencies
that the assumptions upon which an award is based may prove to be wrong: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49
B.C.L.R. (2d) 99 (C.A.); and

·      
Any assessment is to be evaluated in view of its
overall fairness and reasonableness: Rosvold, at para. 11.

Loss of Past Earning Capacity

[134]     The report
of the plaintiff’s economist expert, Mr. Peever, sets out three scenarios
under which Ms. Khosa’s past income loss could be calculated.

[135]     Under
Scenario 1A, Mr. Peever calculates what Ms. Khosa’s gross earnings,
including shift premiums and overtime pay, would have been but for the
accident, working in her position as an LPN at Sunny Hill at 0.84 FTE. The
gross amount is $240,957. From that amount, he deducts her income earned since
the accident, both during the GRTW attempts and since her hiring as a nursing
assistant in 2013, calculated at $55,739. He does not deduct the amounts she
was paid as sick time and Long Term Disability (the latter by her disability
insurer, Great West Life). The difference is a gross loss of earnings at
$185,218. Net of income taxes and EI premium contributions (a calculation
required by s.98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231),
the loss is estimated at $149,000.

[136]     Scenario
1B is calculated on the basis of Ms. Khosa, but for the accident, having
worked full time as an LPN (1.00 FTE). The gross pay without accident is
$282,315; the gross loss of earnings is $226,576; and the net loss is estimated
at $178,100.

[137]     Scenario
1C is calculated on the basis of Ms. Khosa hypothetically working as a
1.00 FTE to the end of 2010, then working part-time (.50 FTE) in 2011 and 2012
while obtaining a bachelor’s degree in nursing, and then working full-time as
an RN from January 2013. The gross pay under this scenario would have been
$240,182; the gross loss of earnings is $184,444; and the net loss is estimated
at $146,300.

[138]     The
plaintiff submits that an award of $146,000, based on Scenario 1C, is
appropriate.

[139]     The
plaintiff further contends that the past wage loss should include not only the
net Scenario 1C loss calculated by Mr. Peever, but also, in addition, the
subrogated claims of Health Shared Services B.C. in the amount of $9,484.13
(sick credits, and employer contributions to paid leave and to GRTW wages); and
of Great West Life, in the amount of $93,518.35. In total, the plaintiff seeks
an award for past wage loss of $249,302.48.

[140]     Mr. Peever,
however, did not include these amounts that are said to be subject to
subrogation in his calculation of the “with accident” earnings. Had he done so,
the “with accident” earnings deducted from the hypothetical “without accident”
earnings would have been larger, and the resulting gross and net income loss
would have been reduced correspondingly. In other words, Mr. Peever’s
calculations of the income loss include losses during the periods of time Ms. Khosa
was actually receiving the benefits said to be subject to subrogation. To award
those amounts in addition to the losses calculated by Mr. Peever, as
requested by the plaintiff, would be a double-accounting. The question of the
extent of the employer’s and the insurer’s subrogated interest in the net
amounts awarded was not before me, and I make no findings in that regard. There
is, however, no basis for adjusting Mr. Peever’s calculations upwards in
respect of any subrogated claim.

[141]     The
defence submits that Ms. Khosa’s tax returns demonstrate that she only
worked 0.84 FTE in 2007, and 0.75 in 2008; it is submitted that Mr. Peever’s
calculations, accordingly, should be viewed with caution. However, Ms. Khosa’s
regular part-time employment at 0.84 FTE only began in May 2008; at the time of
the accident she had less than a full year’s employment in that position. I do
not find reference to her earnings in 2007 and 2008 to be indicative of her
past “without accident” earnings level.

[142]     The
defence also – correctly in my view – points to the fact that Mr. Peever’s
analysis did not account for the income loss due to Ms. Khosa’s ear
surgery, which would have occurred but for the accident. The precise amount of
that loss is not in evidence; the potential range of the loss is a factor I
have considered in reaching my conclusion.

[143]     I view Mr. Peever’s
Scenario 1C as likely overstating the plaintiff’s income loss if she had
pursued her RN designation. Ms. Khosa was a hard worker, driven to
succeed, and had a supportive husband; I do find it likely that she would have
eventually become an RN – and I also find there still to be a significant
possibility of her pursuing that career path following a successful course or
courses of psychological treatment – but the notion of her being able to work
half-time while pursuing her nursing degree strikes me as ambitious, particularly
given her pre-accident pattern of contributing more than her share to housework
and parenting.

[144]     On the
other hand, while I find there is a very strong probability that Ms. Khosa
would have obtained her RN designation at some point in time, the 2011 start
date for her studies is the earliest likely date; greater probabilities attach
to her studies commencing at later points in time. All other things being
equal, this consideration increases her past income loss, though it adversely
affects her future income claim.

[145]     Taking all
of these factors into account, I assess the net value of Ms. Khosa’s loss
of income at $165,000.

Loss of Future Earning Capacity

[146]     The
plaintiff relies on another report prepared by Mr. Peever that sets out a
number of alternative methods of assessing the present value of Ms. Khosa’s
loss of future earnings and future pension benefits.

[147]     With
respect to Ms. Khosa’s expected future earnings, Mr. Peever’s report
presumes that at best Ms. Khosa will continue to work only as a nursing
assistant. He provides figures based on scenarios in which Ms. Khosa will
retire at ages 60, 65 or 7. He also provides figures for “risk-only”,
reflecting the risk-only labour market contingencies, i.e. assuming continuing
voluntary choice in favour of participation in the labour force; and for
“risk-and-choice”, reflecting the additional negative contingency of voluntary
withdrawal. The labour market statistics used by Mr. Peever are those for
females in British Columbia with post-secondary education.

[148]     The
plaintiff submits that the substantial possibility of Ms. Khosa’s physical
and psychological injuries continuing to impair her militates in favour of the
“risk-and-choice” scenarios being utilized. On that basis, to retirement age of
60, the plaintiff submits that the present value of her “with accident” future
earnings amounts to $467,100, plus the present value of future net pension
benefits of $74,700, for a total of $541,800.

[149]     With
respect to “without accident” scenarios, Mr. Peever provides alternative
calculations on “no risk”, “risk-only” and “risk-and-choice” assumptions, based
on the scenarios of Ms. Khosa hypothetically having continued, but for the
accident, to work as an LPN at 0.84 FTE, as an LPN at 1.00 FTE, and as an RN at
1.00 FTE; for each of these scenarios, the present value is calculated on the
basis of Ms. Khosa hypothetically working to ages 60, 65 or 70. For
example, the present value of the “risk-and-choice” earnings (exclusive of
overtime and shift premiums) and future net pension benefits of an LPN at 0.84
FTE to age 65 is $759,600; the comparable figures for a full-time LPN and a
full-time RN are $882,800, and $1,303,800 respectively. The corresponding
figures using the “risk-only” model are, respectively, $1,002,500; $1,185,500;
and $1,799,600.

[150]     The
plaintiff submits that the appropriate “without-accident” calculation to use is
the present value of the “risk-only” earnings of a RN to age 70, which –
including earnings, net pension benefits, and shift premiums and overtime –
amounts to $2,125,858. Deducting from this figure the “with accident” sum of
$541,800 – the present value of Ms. Khosa’s earnings as a nursing
assistant adjusted for “risk-and-choice” to age 60 – yields a value of
$1,584,058. The plaintiff submits that this is the present value of her loss of
future earning capacity.

[151]     The
defence notes that Ms. Khosa’s GP, Dr. Hamza, opined that she could
return to work as “an LPN in a light-duty environment”, and on that basis
argues that Ms. Khosa’s current income-earning capacity is greater than
that of a nursing assistant. The problem with this position, and with Dr. Hamza’s
opinion, is that there is no evidence that there is anywhere in British
Columbia such a thing as an LPN position limited to light duties. To the extent
that I find the range of possible outcomes for Ms. Khosa to include
persistent and continuing limitations in her capacity, I cannot conclude that
there is any reasonable possibility that her earnings will exceed their present
level.

[152]     Mr. Peever
was cross-examined on his report. The chief difficulty with the plaintiff’s
position on her future earnings capacity that emerged in the course of his
cross-examination was in respect of the assumptions as to retirement age on
which Mr. Peever’s report was premised. Mr. Peever gave no regard to
the likelihood of earlier retirement. He provided no labour market data on the
retirement age of nurses. Even accepting the other premises in his report –
which I do not – I would view this as a considerable weakness. Nursing is a
physically and emotionally stressful occupation. I regard the plaintiff’s
submission that “without accident” earnings should be assessed on the basis of
retirement at age 70 as wholly unrealistic. There would seem to be a greater
likelihood of retirement at a younger age, and retirement even before age 60 is
a contingency that must be provided for in the assessment. The defence provided
no alternative calculations.

[153]     The
greater problem, of course, in Mr. Peever’s analysis is that it is
premised upon the plaintiff permanently remaining no better than able to
perform in her present position as a nursing assistant. For the reasons stated
above, I do not find this to have been proven. It is a possibility, but is less
than probable.

[154]     I view as
far more probable the possibilities that after a suitable, and perhaps
prolonged, period of further treatment and recovery, the plaintiff will be able
at least to return to her position as an LPN, and possibly pursue her
aspiration of becoming a registered nurse. There is, as I have indicated above,
a risk of Ms. Khosa removing herself from the labour market entirely because
of the persistence of her injuries. I regard that risk as small.

[155]     Having
considered the range of reasonably possible and probable outcomes on the evidence,
and having regard to the principles of assessment outlined above, I assess Ms. Khosa’s
loss of future earning capacity at $750,000.

Cost of Future Care

[156]     The
plaintiff has submitted a report of an occupational therapist, Ms. Shannon
Smith, setting out a broad range of future medical and rehabilitation expenses,
pharmaceuticals and personal expenses.

[157]     This
includes a claim for neuropsychological testing, in the amount of $2,500. As
stated above, I find this claim to be based on nothing more than conjecture on
the part of Dr. Estrin. If there is a genuine, medical need for such an
assessment, it ought to have been conducted prior to trial and presented as
part of the proof of the plaintiff’s claim. It is not recoverable as a future
care expense.

[158]     The
present value of the future care expenses described by Ms. Smith is
calculated by Mr. Peever at approximately $170,000 – $270,000.

[159]     Given my
findings as to the predominantly psychological basis of Ms. Khosa’s
current condition, I do not find the majority of these claimed expenses to be
reasonably justifiable.

[160]     In my
view, the appropriate future care expenses in this case include a reasonably
generous allowance for different modes of psychological treatment in the near
term; and provision for continuing periodic treatment, should intensive
treatment not yield the desired result.

[161]     Dr. Koch’s
report states that private rates for CBT are approximately $185. Ms. Smith
cites the B.C. Psychologist’s Association recommended rate of $200 per hour. (She
notes that Chuck Jung & Associates charges $175 per hour, but provides no
information as to the range of services they provide.) No evidence has been
given as to the potential cost of a further round or rounds of neurofeedback
treatment, but the special damages claimed for the treatments provided by the
Swingle clinic of approximately $1,900 provide a guide.

[162]     On the
basis of the physiatrist Dr. Stewart’s recommendation that Ms. Khosa
receive psychological counselling 3 or 4 times a year, Ms. Smith proposes
a yearly expense of $525 – $800. The present value, for life, of annual
expenses of $525 is stated by Mr. Peever as approximately $16,000.

[163]     I award Ms. Khosa
$22,000 for future psychological treatment.

[164]     Ms. Khosa
is entitled to the cost of a chronic pain program; Ms. Stewart has
costed-out two alternative programs at an average cost of approximately
$13,825.

[165]     Ms. Khosa
is further entitled to a lump sum to cover the contingency of future
housekeeping expenses, in the event the psychological treatment is unsuccessful
in returning her to her previous level of function. The present value, for
life, of routine and seasonal housekeeping expenses assessed by Ms. Stewart
at approximately $2,000 annually is stated by Mr. Peever to be $66,598.
Recognizing that there will be a definite need for such services in the short
term, and a contingent need only in the long term, I award Ms. Khosa $25,000
under this heading.

[166]     Ms. Smith
assesses the annual cost of medication at approximately $785 – $1,165. The
present value, for life, of these expenses is calculated by Mr. Peever at
approximately $24,500. The vast majority of this, however, is for
anti-depressant medication; even in the event that Ms. Khosa’s depression
persists, no one has opined that her condition will be severe enough that there
is an expectation of her being on anti-depressants for life; this is a
possibility only. I award a further $2,500 under this heading.

[167]     The future
care claim is allowed in the total amount of $63,325.

Loss of Housekeeping Capacity

[168]     The
plaintiff seeks an award of $15,000 to compensate Ms. Khosa for a lifetime
loss of housekeeping capacity. In support of this claim, the plaintiff
references Ms. Khosa’s inability to perform “more rigorous regular
household tasks”; Ms. Khosa’s need for assistance in performing regular
weekly housekeeping chores is, however, already addressed by the routine
housekeeping expenses calculated by Ms. Smith. The concern that arises in
a case like this is the need to avoid overcompensating a plaintiff through
awarding both housekeeping costs as a future expense, and a monetary award of
loss of capacity. Although the claims are distinct, there can be overlap: see
the comments of Professor Cooper-Stephenson from his leading text, Personal
Injury Damages in Canada, 2nd ed. (Scarborough: Carswell, 1996), at
p. 315, as cited in O’Connell v. Yung, 2012 BCCA 57, at para. 65.
The claim is also subject to contingencies.

[169]     I assess Ms. Khosa’s
damages under this head at $2,500.

In-Trust Claim for Mr. Khosa

[170]     The
plaintiff seeks an in-trust claim for Mr. Khosa in the amount of $25,000.
This is said to be based on driving Ms. Khosa to medical appointments,
driving her around on errand and maintaining her vehicle, twice a week, 52
weeks a year for ten years at a cost of $20 per occasion; plus, some additional
allowance for Mr. Khosa providing his wife with care arising from her
continued psychological illness.

[171]     It is
unlikely that Ms. Khosa will have a future need for such services,
following appropriate psychological treatment. Recognizing it as a contingency,
I award $7500 under this heading.

Special Damages

[172]     Special
damages are claimed in the amount of $17,321.26. The defence takes no issue
with these claims, and in my view they are proper and reasonable. The claim is
allowed.

Summary

[173]     The
plaintiff is awarded damages in the following amounts:

[174]     Prejudgment
interest is allowed at the prevailing rate.

[175]     Leave is
granted the plaintiff to make submissions as to any appropriate tax gross-up.

[176]    
The plaintiff is awarded costs at Scale B. If there are issues I am
unaware of that may affect the award of costs, the parties will have leave to
make submissions.

“A. Saunders J.”