IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Wormald v. Chiarot, |
| 2015 BCSC 272 |
Date: 20150224
Docket: 12-1999
Registry:
Victoria
Between:
Kyla Wormald
Plaintiff
And
Jessalynn Chiarot
and Christopher Chiarot
Defendants
Before:
The Honourable Mr. Justice Funt
Reasons for Judgment
Counsel for Ms. Wormald: | G.R. Jackson |
Counsel for the Defendants: | J.D. Martin |
Place and Dates of Trial: | Victoria, B.C. May 26-30 and June 5-6, |
Place and Date of Judgment: | Victoria, B.C. February 24, 2015 |
I.
introduction
[1]
On June 26, 2009, the plaintiff, Ms. Kyla Wormald, was one of
nine passengers in a mid-size cross-over sports utility vehicle (a Honda CR-V) driven
by the defendant, Ms. Jessalynn Chiarot, when, at high speed, Ms. Chiarot
lost control of the vehicle, causing it to crash violently by leaving the
highway and rolling several times until coming to rest in a ditch.
[2]
The second defendant, Mr. Christopher Chiarot, was the owner of the
vehicle. He was not an occupant of the vehicle when it crashed.
[3]
Ms. Wormald claims that she suffered physical and psychiatric
injuries, leading to a significant claim for damages (approximately $250,000).
[4]
Ms. Wormald was contributorily negligent.
[5]
With the exception of a scar, bruises, scrapes, and cuts she suffered in
the accident, Ms. Wormald has not met her burden to show that the injuries
for which she claims damages were in fact caused by the accident.
[6]
Ms. Wormald is awarded $5,100 for the scar, bruises, scrapes, and
cuts.
II.
pleadings
[7]
In her June 6, 2012 Notice of Civil Claim, Ms. Wormald pleaded
with respect to her injuries claimed and the relief sought:
7. As a
result of the accident, the Plaintiff suffered personal injuries causing shock,
pain and suffering, loss of earnings, loss of future earning capacity, loss of
housekeeping capacity, loss of past and future care, loss of insurability, loss
of opportunity, loss of amenities of life and traumatic neurosis. In
particular, without limiting the generality of the foregoing, the Plaintiff has
suffered:
a)
injury to back;
b)
injury to face;
c)
injury to feet;
d)
injury to hips;
e)
injury to right arm;
f)
injury to right leg;
g)
anxiety;
h)
such further and other injuries as counsel may advise.
Part 2: RELIEF SOUGHT
1. General
damages for pain and suffering, disfigurement, loss of enjoyment of and
amenities of life, physical and emotional distress;
2. Loss of income, both past and
future;
3. Costs of past and future care;
4. Loss of earning capacity;
5. Special damages;
6. Past and future loss of
housekeeping/handyman capacity;
7. General and
special damages as a Trustee for and on behalf of her friends and family, in
relation to services which were rendered and will be rendered in the future for
and on behalf of the Plaintiff following the accident;
8. Past cost
of health care services and future cost of health care services in accordance
with the provisions of the Health Care Costs Recovery Act, SBC 2008
c. 27 as amended;
9. Interest pursuant to the Court
Order Interest Act;
10. Costs of this action; and
11. Such further and other relief as to
this Honourable Court shall deem necessary and fair to reasonably compensate the
Plaintiff.
[8]
The defendants admit that the accident occurred but deny that Ms.
Wormald suffered personal injuries. The defendants have also pleaded that Ms. Wormald
was contributorily negligent (which included failing to wear a seatbelt) and
that she failed to pursue and follow medical advice with respect to treatment.
III.
background
(a)
Prior to the Accident
[9]
Ms. Chiarot was 17 years old and Ms. Wormald was 15 years old
at the time of the accident. Ms. Wormald continues to lives with her
mother, who works shifts for BC Ferries as a full-time employee.
[10]
The accident occurred in the early morning of June 26, 2009. The
day before was the last day of the school year for both Ms. Wormald (Grade
10) and Ms. Chiarot, who were friends.
[11]
Ms. Wormald knew that Ms. Chiarot had limited driving
experience and that she held only a novice drivers licence.
[12]
Before the accident, Ms. Wormald also knew that alcohol had been
consumed by other occupants of the vehicle, including Ms. Chiarot (Maybe
a couple of sips. She did not appear drunk. Ms. Wormalds July 9,
2009 statement).
[13]
Ms. Wormald testified that she had drunk from a shared 2‑litre
bottle of cider (alcoholic) and that she was not intoxicated.
[14]
Over the course of the late evening of June 25, 2009, Ms. Chiarot
made various stops picking up other friends, all of whom were minors.
[15]
The vehicle was equipped with five seatbelts. Prior to the accident, Ms. Wormald
was seated in the left side of the back hatch area of the vehicle. As she knew,
this area of the vehicle did not have seatbelts.
[16]
There were several occasions where Ms. Wormald could have left the
group by taking a bus or walking home (although it would have been a long walk).
She also could have called her mother or asked for a ride from her. Her mother
had been at work on an evening shift but had returned home between 11:30 p.m. and
midnight. She had called Ms. Wormald to check on her whereabouts and had
encouraged her to come home. She received a call 30 to 45 minutes later
from her daughter saying that she had been in an accident.
[17]
One occasion when Ms. Wormald could have left the group was when they
stopped at a Shell gas station/market and all nine occupants left the vehicle. Ms. Wormald
had been sitting in the left rear hatch area and when the group got back into
the car, Ms. Wormald, rather than leaving, again returned to that spot.
[18]
The purpose of the stop was to buy eggs which were then thrown at people
as they drove through Langford. Ms. Wormald testified that she did not
throw any eggs.
[19]
After the Shell stop, another friend of the group joined them at a bus stop,
making it ten people in the vehicle.
[20]
During the course of the evening of June 25 and early morning of June 26,
2009, Ms. Wormald did not ask Ms. Chiarot to stop the vehicle so that
she could leave. Ms. Wormald acknowledged that she could have done so.
[21]
Immediately prior to the accident, Ms. Wormald testified that
others in the vehicle encouraged Ms. Chiarot to accelerate to 150 km/h, and
Ms. Chiarot increased the vehicles speed to above the speed limit. Ms. Wormald
did not ask Ms. Chiarot to slow down, nor did she ask her to stop the
vehicle to let her out.
[22]
The vehicle left the highway, rolled and came to rest in a ditch. One
occupant was thrown from the vehicle. Ms. Wormald crawled from the vehicle
through a broken window. There were no fatalities.
[23]
Ms. Chiarot was negligent and caused the accident. She had a novice
licence and had nine passengers in her vehicle, far exceeding its designed
capacity. Contrary to her novice licence restrictions, she had been drinking,
as described by Ms. Wormald. She was speeding at the time of the accident
(by her own estimate, 100km/h on an area of a road with a 60 km/h speed limit).
At any time during the evening and early morning, she could have stopped her
vehicle and asked her friends to leave, or at the various stops during the
evening asked them to find their own way home. As noted, the last stop prior to
the accident was at a bus stop.
(b)
After the Accident
[24]
Two ambulances arrived at the accident scene, and Ms. Wormald was
taken to hospital. Ms. Wormald did not complain of neck or back pain. Neither
a neck collar nor a spinal board was used. With respect to Ms. Wormalds
injuries, the main concern was a cut several inches long to her right thigh.
[25]
In the emergency room of the hospital, Ms. Wormald received
stitches for the cut to her right thigh. She received no other treatment at the
hospital and was released into her mothers care.
[26]
Later, Ms. Wormalds mother took photographs of her bruising, cuts and
scrapes, as well as the significant cut to Ms. Wormalds thigh.
[27]
Some days later, Ms. Wormald went to a local medical clinic and had
the stitches removed. A scar remains. The photograph of the healed cut shows a
scar which is noticeable, but is not puckered and is flush with the surrounding
skin. A reasonable person would not be repulsed by the sight of the scar.
[28]
In examination in chief, Ms. Wormald testified that since the
accident she has had constant pain in her lower back and neck. She testified
that she has headaches which feel like my brain wanting to explode. She also
testified that she is anxious and that she experiences flashbacks. She
testified that she gets nauseous, requiring her to visit the washroom.
[29]
When her stitches were removed, Ms. Wormald does not recall
speaking to the doctor about any headaches, neck or back pain, nor did she
report anxiety related to the accident.
[30]
At the time of the accident, Dr. Carole Williams had been Ms. Wormalds
general physician for several years. Ms. Wormald did not go and see Dr. Williams
in the first months after the accident. She stated in cross-examination that
she just wanted it all to go away. In cross-examination, Ms. Wormald
testified that she had visited one of the other survivors of the crash who had
more serious injuries and stated that she did not recall having headaches, neck
or back pain at that time. She also did not report any such problems to her
mother or ask to see a doctor. She does not recall raising any anxiety or a
similar concern with her mother.
(c)
July 9, 2009 Meeting with Mr. Geoff Myers
[31]
Mr. Geoff Myers is an experienced independent insurance adjuster
who was retained by the Insurance Corporation of British Columbia to
investigate the accident. In the course of his investigation, he arranged to
meet Ms. Wormald at her home, with her mother present, on July 9,
2009.
[32]
Mr. Myers testified at trial that, at the July 9, 2009 meeting,
he asked Ms. Wormald questions about the accident and her injuries and
then prepared a handwritten statement for Ms. Wormald to sign which read,
in part, no neck or back injuries. He reviewed it with Ms. Wormald and,
he states, he specifically recalls her mother reading the statement before Ms. Wormald
signed it.
[33]
Ms. Wormalds mother had a vague recollection of the meeting. Ms. Wormald
also had a poor recollection of the meeting and stated that she has difficulty
reading handwriting. In cross-examination, Ms. Wormald acknowledged that
she did not tell Mr. Myers of this fact.
[34]
Based on Mr. Myerss testimony, the Court finds that the signed
statement provides an accurate record (although not verbatim) of what Ms. Wormald
told Mr. Myers on July 9, 2009, in the presence of her mother.
[35]
At the meeting, nothing was said with respect to Ms. Wormald
suffering headaches or experiencing anxiety. As Mr. Myers testified, if
such had been said, it would be in the statement. He testified he always asks
about head injuries.
[36]
If Ms. Wormald had had headaches, neck, or back problems of which
her mother was aware, the Court is satisfied that Ms. Wormalds mother
would have said so. In 2007, Ms. Wormald had injured her back in a
horseback riding accident and, within a day or two, Ms. Wormalds mother had
had her attend a physiotherapist. If Ms. Wormald had been suffering from
headaches or neck and back problems, Ms. Wormalds mother would have
observed, as a caring parent and living in the same house as her daughter, the
neck and back problems and presumably would have been told of any headaches.
[37]
On October 25, 2009, Mr. Myers called Ms. Wormalds
mother to follow up on Ms. Wormalds condition and any accident-related
matters, and she told him that her daughter seemed okay, that the cut had
healed, and that she had an ambulance bill. She denied that she told Mr. Myers
that life was back to usual. He did not speak with Ms. Wormald at that
time.
[38]
In her cross-examination, Ms. Wormalds mother stated that she didnt
have anything to hide from anybody when Mr. Myers first asked to meet,
but when cross-examined as to the October 25, 2009 telephone call from Mr. Myers,
she explained that she did not describe Ms. Wormalds true condition
because she did not know his purpose and did not feel he was upfront. There
was no evidence to suggest that she asked him to explain his role again. The
Court accepts Mr. Myerss testimony that he explained his role at the
outset during the July 9, 2009 meeting.
[39]
Mr. Myers had no further discussions with either Ms. Wormalds
mother or Ms. Wormald. Neither of them contacted him.
(d)
School and Work after the Accident
[40]
After the accident, Ms. Wormald completed grades 11 and 12, graduating
in June 2011.
[41]
While attending grade 12, Ms. Wormald was employed part-time
by Walmart for three months. Shortly after high school graduation, she was
employed full-time as a housekeeper at a local hotel until October 2012, when
she started her current job at a local beer and wine store. To start, she was a
clerk and, by the time of trial, she was a supervisor, earning approximately $22,000
in 2013.
(e)
Drivers Licence
[42]
In November 2009, Ms. Wormald completed a driving course and
obtained a drivers licence. She purchased a car for herself with funds
inherited from her grandmother.
(f)
Social Activities, Job Opportunities and Anxiety
[43]
Ms. Wormalds case is based in large measure on the assertion that
her anxiety is such that it has affected her social activities and job
opportunities, and that the anxiety was caused by the accident.
[44]
Ms. Wormald testified that she is fearful of travelling in a car,
and that she maps her routes in advance. Even with her boyfriend, she insists
on being the driver in order to feel more comfortable. She likes to stay near
home where the streets are familiar. Such, in turn, has affected her social
activities and job opportunities.
[45]
She says her social activities are affected because she is embarrassed
by her anxiety. She says she is not as socially active as she was prior to the
accident. She has maintained a close group of friends, has had boyfriends, and
is currently in a serious relationship. With respect to job opportunities, she
was offered a job with BC Ferries, which would lead to a career similar to
her mothers, but declined the opportunity because there would be a significant
drive from her home to the ferry terminal.
[46]
Her wages with BC Ferries would be significantly greater than those from
her current employer.
[47]
She has also not pursued further education that would lead to job
opportunities in health care, because she says she is uncomfortable with less
familiar surroundings and travel.
IV.
plaintiffs burden
[48]
Ms. Wormald must prove her injuries on a balance of probabilities: F.H.
v. McDougall, 2008 SCC 53. In F.H., the Supreme Court of Canada
describes what constitutes the civil standard of a balance of probabilities:
[40] Like the House of Lords, I think it is time to
say, once and for all in Canada, that there is only one civil standard of proof
at common law and that is proof on a balance of probabilities. Of course,
context is all important and a judge should not be unmindful, where
appropriate, of inherent probabilities or improbabilities or the seriousness of
the allegations or consequences. However, these considerations do not change
the standard of proof. I am of the respectful opinion that the
alternatives I have listed above should be rejected for the reasons that
follow.
[41] Since Hanes v. Wawanesa Mutual
Insurance Co., [1963] S.C.R. 154, at pp. 158- 64, it has been clear that
the criminal standard is not to be applied to civil cases in Canada. The
criminal standard of proof beyond a reasonable doubt is linked to the
presumption of innocence in criminal trials. The burden of proof always remains
with the prosecution. As explained by Cory J. in R. v. Lifchus,
[1997] 3 S.C.R. 320, at para. 27:
First, it must be made clear to the
jury that the standard of proof beyond a reasonable doubt is vitally important
since it is inextricably linked to that basic premise which is fundamental to
all criminal trials: the presumption of innocence. The two concepts are forever
as closely linked as Romeo with Juliet or Oberon with Titania and they must be
presented together as a unit. If the presumption of innocence is the golden
thread of criminal justice, then proof beyond a reasonable doubt is the silver
and these two threads are forever intertwined in the fabric of criminal law.
Jurors must be reminded that the burden of proving beyond a reasonable doubt
that the accused committed the crime rests with the prosecution throughout the
trial and never shifts to the accused.
[42]
By contrast, in civil cases, there is no presumption of
innocence. As explained by J. Sopinka, S. N. Lederman and A. W. Bryant, The
Law of Evidence (2nd ed. 1999), at p. 154:
Since society is indifferent to
whether the plaintiff or the defendant wins a particular civil suit, it is
unnecessary to protect against an erroneous result by requiring a standard of
proof higher than a balance of probabilities.
It is true that there may be serious consequences to a
finding of liability in a civil case that continue past the end of the case.
However, the civil case does not involve the governments power to penalize or
take away the liberty of the individual.
[43]
An intermediate standard of proof presents practical problems.
As expressed by L. Rothstein et al., at p. 466:
As well, suggesting that the
standard of proof is higher than the mere balance of probabilities leads
one inevitably to inquire what percentage of probability must be met? This is
unhelpful because while the concept of 51 percent probability, or more
likely than not can be understood by decision-makers, the concept of 60
percent or 70 percent probability cannot.
[44]
Put another way, it would seem incongruous for a judge to
conclude that it was more likely than not that an event occurred, but not
sufficiently likely to some unspecified standard and therefore that it did not
occur. As Lord Hoffman explained in In re B at para. 2:
If a legal rule requires a fact to
be proved (a fact in issue), a judge or jury must decide whether or not it
happened. There is no room for a finding that it might have happened. The
law operates a binary system in which the only values are zero and one. The
fact either happened or it did not. If the tribunal is left in doubt, the doubt
is resolved by a rule that one party or the other carries the burden of proof.
If the party who bears the burden of proof fails to discharge it, a value of
zero is returned and the fact is treated as not having happened. If he does
discharge it, a value of one is returned and the fact is treated as having
happened.
In my view, the only practical way in which to reach a
factual conclusion in a civil case is to decide whether it is more likely than
not that the event occurred.
(This Courts emphasis.)
V.
plaintiffs claimed injuries
(a)
Scar, Bruises, Scrapes and Cuts
[49]
There is no doubt that Ms. Wormald suffered bruises, scrapes, and
cuts as a result of the accident, with one cut requiring several stitches and
leaving a scar several inches long on her upper right thigh. The scar is
visible when Ms. Wormald wears shorts or similar attire. Ms. Wormald
views the scar as unsightly and believes it will cause people to ask her what
caused the scar. She then has to revisit the accident, which understandably is
upsetting. She testified that she has itchiness related to the scar from time
to time.
[50]
In considering a more severe scar, in Nogueira v. O. Alasaly Pharmacy
Ltd., 2014 BCSC 1237 at para. 43, I stated:
[43] No two cases regarding
physical injury will ever be identical. With respect to a scar, the size,
severity and location of the scar are some of the particular factors. The
injured partys perception of the injury is also an important factor. In
determining the appropriate award, the Court has considered the plaintiffs
anxiety with respect to the scar. The Court has also included as a factor the
tingling she experiences at the site of the scar. The Court awards $25,000 as
non-pecuniary damages.
[51]
In the case at bar, the Court, without considering Ms. Wormalds
contributory negligence, would award $8,000 for her scar and $500 for her
bruises, scrapes, and minor cuts.
[52]
In assessing Ms. Wormalds contributory negligence, the Court has
considered that she knew that:
(a) Ms. Chiarot
had a novice licence;
(b) Ms. Chiarot
had been drinking, contrary to her novice licence;
(c)
Ms. Chiarot had more passengers in the vehicle than was allowed by
her novice licence;
(d) the
vehicle had more occupants in it than it was designed to carry;
(e) over
the course of the night in question, she had several opportunities to remove
herself from the situation but did not do so;
(f)
she sat in an area of the vehicle where she knew there were no seatbelts;
and,
(g) the
other occupants planned to throw eggs at people from the moving vehicle (with
the reasonable expectation that the vehicle might be chased).
[53]
With respect to Ms. Wormalds failure to wear a seatbelt, the Court
notes that she was not thrown from the vehicle. There was no evidence presented
that her injuries would have been any different if she had been wearing a
seatbelt. Accordingly, the Court will ignore this factor in assessing Ms. Wormalds
contributory negligence based on the rule in Koopman v. Fehr (1993), 81
B.C.L.R. (2d) 145 (BCCA).
[54]
The Court has also considered Ms. Chiarots involvement. She would
have known everything Ms. Wormald knew regarding the situation and,
moreover, as the driver of the vehicle, would have had control of the situation.
Accordingly, Ms. Chiarot was at greater fault than Ms. Wormald. The Court
finds Ms. Wormald to be 40% at fault.
(b)
Headaches, Neck and Back Pain, and Anxiety
[55]
On November 12, 2009, Ms. Wormald and her mother went to see Dr. Parsons,
who is a chiropractor. Ms. Wormald stopped these treatments after three
sessions, despite her mothers wishes and Dr. Parsonss recommendations. She
did not feel that they were helping her.
[56]
When Ms. Wormald first saw Dr. Parsons, her mother completed forms
which described the presenting complaint as being attributable to a 2007
horseback riding accident. At trial, however, Ms. Wormalds mother said that
she had made an error in completing the forms in this manner, and that these
chiropractic sessions were necessary as a result of the June 2009 motor
vehicle accident.
[57]
At this time, further medical treatments or advice were not sought in
relation to any claimed injuries related to the accident.
[58]
After the accident, and before May 22, 2012, Ms. Wormald saw Dr. Williams
and other physicians for a variety of matters approximately 15 times. Many
private matters were attended to, but on none of these occasions did Ms. Wormald
state that she was suffering severe, or any, anxiety, headaches, or pain in her
back or neck.
[59]
On May 10, 2012, Ms. Wormald retained defence counsel. On May 22,
2012, Ms. Wormald saw Dr. Williams. She complained about her symptoms
of anxiety, but apparently did not complain of headaches, or neck or back pain.
Dr. Williams testified if that Ms. Wormald had done so, she would
have a made a note of such.
[60]
On a referral made by Dr. Williams, Ms. Wormald applied for a
counselling program for mental health patients, but she was not accepted as she
was underage at that time.
[61]
In cross-examination, Ms. Wormald testified that Dr. Williams,
as part of the May 22, 2012 visit, referred her to Ms. Linda
Finlayson, a counsellor who she subsequently saw in the Spring of 2013 for
three sessions. Ms. Wormald did not feel that Ms. Finlaysons counselling
was of any help to her.
[62]
In subsequent visits to Dr. Williams, there was no further
discussion of anxiety until May 21, 2014, shortly before trial, at which
time Ms. Wormald expressed the desire to seek further counselling for her
anxiety. A further referral was made.
[63]
After Dr. Williams received a subpoena to attend the trial, she
asked Ms. Wormald to see her in order to ascertain details of the claim. Despite
some clerical problems, which led to poor communication between Ms. Wormalds
counsel and Dr. Williamss office, Dr. Williams testified that a key
reason she had not prepared a medical-legal report was because Ms. Wormald
had not seen her previously with respect to injuries suffered as a result of a
motor vehicle accident, other than anxiety during the May 22, 2012 visit. Dr. Williams
could not recall and had no notes of any other such complaints made by Ms. Wormald.
[64]
Ms. Finlayson was not called by Ms. Wormald at trial. An
expert opinion of a psychologist or psychiatrist was also not tendered at
trial.
[65]
At trial, it was apparent that Ms. Wormalds mother is a caring
woman who wishes the best for her daughter. If Ms. Wormalds physical pain
and anxiety were as severe as she describes, the Court is satisfied that the
severity of the injuries would have been apparent to her mother and that, in
the almost five years after the accident and before trial, she would have taken
the necessary steps to ensure that her daughter received treatment.
[66]
The Court does not find Ms. Wormald sufficiently reliable to find on
a balance of probabilities that the physical injuries (other than the scar,
bruises, scrapes, and cuts) and headaches for which she claims damages were
caused by the accident. Her claims are not consistent with her July 9,
2009 statement to Mr. Myers or her mothers telephone conversation with Mr. Myers
on October 25, 2009. If her physical symptoms, including her headaches, were as
severe as she claims, the Court finds that she would have reported these to Dr. Williams
during one of her frequent visits.
[67]
Mr. Martin finished his cross-examination of Ms. Wormald as
follows:
Q So if I understand your evidence, you had
almost 5 years of ongoing back pain and neck pain, anxiety, but those
things were not bad enough for you to suffer a little embarrassment to seek some
help?
A Correct.
Q Until now?
A Yes.
Q On the eve of trial?
A Yes.
[68]
Ms. Wormalds explanation does not support her claims where matters
must be proved on a balance of probabilities.
[69]
The Court has noted the medical opinions and expert testimony of a physiatrist
and a chiropractor which were tendered by Ms. Wormald as part of her case.
The opinions are, in large measure, based on the reliability of what was
provided to each of them by Ms. Wormald. Where the reporter is not
reliable, the reliability of a medical experts opinion falls accordingly: see
Chief Justice Wilson, Lenoard v. British Columbia Hydro Power Authority
(1965), 50 W.W.R. 546 (BCSC), at 548.
[70]
Defendants counsel in his written submission states with respect to Ms. Wormalds
claim for psychiatric injury:
Unlike with her physical
symptoms, Ms. Wormald has provided the court with no admissible medical
opinion evidence to support her claim that she suffered any sort of psychiatric
injury as a result of this accident. There is no admissible expert opinion
providing any diagnosis, prognosis, treatment recommendations or opinion on
causation that the court can rely on and no reasonable explanation for why no
such evidence has been offered
[71]
As with the claimed physical injuries and headaches, the Court is
puzzled as to the reason Ms. Wormald did not raise her anxiety problem
with Dr. Williams until almost three years after the accident. Ms. Wormald
has also not satisfied the Court as to the reasons treatment was not pursued. If
Ms. Finlaysons services were not acceptable, and if the anxiety was as
severe as Ms. Wormald claims, why was Dr. Williams not consulted or
other help sought?
[72]
Counsel for Ms. Wormald argued that she could not afford treatment, and
that the special damages claim would have been greater if Ms. Wormald had
had the financial ability to obtain further counselling or psychological
therapy. The Court does not accept this argument for three reasons: first, she
inherited money from her grandmother (which she used to buy a car); second, Ms. Wormald
was living at home while working full time; and third, her mother enjoys a
well-paying job and, although the Court heard testimony that finances were
tight, the Court is not satisfied that there would not have been funds
available from her loving mother.
[73]
If there is a psychological reason for not pursuing treatment when such
is required (such as where social activities and job opportunities are
negatively affected), then expert opinion evidence could have been tendered to
show that the accident was the cause of the anxiety, and that the anxiety can
manifest itself by denying the need for assistance, or refusing or not pursuing
treatment. In para. 7 in her Notice of Civil Claim, Ms. Wormald
pleaded specifically that she had suffered traumatic neurosis as a result of
the accident.
[74]
In sum, Ms. Wormald has not discharged her burden to establish on a
balance of probabilities the psychiatric or physical injuries she claims, other
than for the scar, bruises, scrapes, and cuts.
VI.
cONCLUSION
[75]
Ms. Wormald is awarded for her scar, bruises, scrapes, and cuts $5,100
[($8,000 + $500) x 60%].
[76]
If counsel wish to speak to costs, they may contact Trial Scheduling to
arrange a 9:00 a.m., one-hour Chambers hearing within 90 days of the
release of these Reasons.
Funt J.