IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Litt v. Guo, |
| 2015 BCSC 2207 |
Date: 20151127
Docket: M053418
Registry:
Vancouver
Between:
Kulbir Kaur Litt
also known as Kulbir Kelly Litt
Plaintiff
And
Hui Wu Guo also
known as Steven Guo
Narinder Singh Johal and Kulwinder Kaur Johal
Defendants
– and –
Docket: M111513
Registry:
Vancouver
Between:
Kulbir Kaur Litt
also known as Kulbir Kelly Litt
Plaintiff
And
Peter Lawrence
Ratsoy and S-232 Holdings Ltd.
Defendants
Before:
The Honourable Mr. Justice Schultes
Reasons for Judgment
Counsel for the Plaintiff: | R. Marcoux |
Counsel for the Defendants: | G.S. Sandhu |
Place and Date of Trial: | Vancouver, B.C. |
Place and Date of Judgment: | Vancouver, B.C. |
A. Ms. Litts
Narrative of Events. 4
1. Life
Before the November 24, 2003 Accident 4
2. The
2003 Accident and its Effects. 6
3. The
August 23, 2010 Accident and its Effects. 14
4. Ms. Litts
Responses to the Defendants Theories. 21
B. Supporting
Observations. 25
a) Narinder
Johal – Spouse. 25
b) Sarandeep
Dhaliwal – Sister 26
c) Kulwinder
Johal – Mother-in-law. 27
C. Ms. Litts
Work Performance, Future Career Possibilities and Potential Earnings. 29
a) Overview
of Career Paths. 29
b) Paul
Kang – Former Manager 30
c) Pardeep
Dosanjh – Former Manager 31
d) Hitkar
Poonia – Investment Retirement Planner 33
e) Paramjit
Bratch – Mortgage Specialist 33
f) William
Smith – Former Regional Vice-President 34
D. Evidence
of Experts and Treating Professionals. 36
a) Dr. William
Lee – Family Physician (Plaintiff) 36
b) John
Oldham – Physiotherapist (Plaintiff) 39
c) Dr. Rosemary
Nairn Stewart – Physiatrist (Plaintiff) 39
d) Dr. Paul
Bishop – Expert in Spine Pain (Defendant) 42
a) Dr. Shaohua
Lu – Psychiatrist (Plaintiff) 48
b) Dr. Stephen
Wiseman – Psychiatrist (Defendant) 52
c) Dr. Alexander
Levin – Psychiatrist (Defendant) 54
d) Dr. Rajinder
Bhatti – Family Physician (Defendant) 59
3. Effect
of Injuries on Employment and General Functioning. 60
a) Dr. Daniel
Gouws – Occupational Medicine (Plaintiff) 60
b) Derek
Nordin – Vocational Assessment (Plaintiff) 63
c) Robert
Gander – Occupational Therapist (Defendant) 64
a) Tracy
Berry – Occupational Therapist – Cost of Future Care (Plaintiff) 66
b) Response
by Robert Gander 69
F. Present
Value of Awards for Future Events. 70
D. Impairment
of Future Earning Capacity. 84
E. Loss
of Housekeeping Capacity. 89
I.
Introduction
[1]
This motor vehicle personal injury case deals with the consequences to
the plaintiff, Kelly Litt, of injuries that she received from accidents that
occurred in 2003 and 2010.
[2]
Ms. Litt says that these accidents have left her with ongoing pain
and triggered a pain disorder, leaving her unable to continue with a promising
career in banking or to fulfil her parenting and other household responsibilities.
[3]
The defendants have admitted liability for both accidents, but dispute
the extent of the injuries that Ms. Litt alleges she received, and the
effects that she says those injuries have had on her life. They argue that the
anorexia nervosa from which she suffered as a teenager, or its related effects,
would inevitably have had a significant negative effect on her life, even if
the accidents had not occurred. They also take the position that her current
situation is mainly explained by aspects of her life and by motivations that
have nothing to do with the accidents.
II. Evidence
A. Ms. Litts
Narrative of Events
1. Life
Before the November 24, 2003 Accident
[4]
Because the defendants argue that non-accident related events in Ms. Litts
life have accounted for many of her symptoms over the years, it is necessary to
review those events in more detail than might otherwise be necessary.
[5]
She now 33 years old. She grew up in Coquitlam.
[6]
She developed anorexia nervosa in Grade 9. It caused her to obsess over
her diet, eat very little and exercise excessively. In the depths of her
illness she weighed as little as 86 pounds and her overall health was at risk.
The catalyst for it, in her recollection, was that her figure began to develop
when she was quite young and she wanted to lose weight so that she would look
like other girls her age.
[7]
She received assistance after a teacher brought the seriousness of the
situation to her parents attention. She saw a counsellor and a dietitian. She
began to gain back weight in Grade 10 and, with the assistance of her family
and a renewed focus on her religious faith, she was successful in putting this
eating disorder into remission. She believed that the duration of the illness
was approximately a year to eighteen months.
[8]
Ms. Litt began her post-secondary education at Douglas College
immediately after high school. She spent a lot of time socializing and did
poorly in her studies as a result. She was advised by her brother-in-law, whom
she regards as a career mentor, to leave that school and pursue a serious
program. She followed his advice, eventually pursuing a business degree at
Langara College in Vancouver.
[9]
She has a lifelong interest in doing makeup for special occasions and
has frequently assisted friends with their makeup in a social setting. She
obtained a professional-level certification from a career college in Surrey
before starting at Langara, and for a time considered pursuing a side business
doing bridal makeup for weddings in the South Asian community.
[10]
She met her husband Narinder Johal in 2001 and they married the
following year, when she was 20. After marrying they began to live in his
parents home in Richmond.
[11]
She started at Langara in September 2003. Earlier that summer her
mother-in-law had shattered her femur and Ms. Litt became her primary
caregiver in the home. She continued to care for her mother-in-law to a lesser
extent once she started school.
[12]
Ms. Litt said that at this point her marriage to Mr. Johal was
in a good state, including its sexual health. She exercised regularly, ate a
healthy diet and had a good self-image. She did not weigh herself too
frequently, for fear of returning to the obsessive habits that had led to her
anorexia nervosa, but she believes that she weighed in the range of 120-130
pounds, up from 118 pounds at the time of her marriage in 2002.
2. The
2003 Accident and its Effects
[13]
In the evening of November 24, 2003, Ms. Litt was returning with
her husband from a copying shop in Richmond, where she had been preparing
material for a class presentation the following morning. Her husband was
driving their vehicle and she was the front passenger.
[14]
They were travelling east on Bridgeport Road when the vehicle driven by
the defendant Mr. Guo turned left in front of them, leading to a
collision. Ms. Litt described the force of the impact between the vehicles
as bad. She recalled being struck in the face and chest and her airbag
deploying. She felt a lot of pain.
[15]
She had difficulty breathing and was taken to hospital by ambulance.
There she was given what she described as heavy painkillers, and was
discharged between 5:00 and 6:00 a.m. the following morning. Despite being in
discomfort, she went to school just long enough to make her class presentation,
then went home to rest.
[16]
She said that in the month following the accident she felt stiff all
over her body, her chest was very sore and her neck and upper back were really
bad. She also had some headaches. For a while the pain got worse every day.
She slept a lot and took the pain medication that she had been given at the
hospital.
[17]
She was unable to take her exams for that term and received grades that
were based on the work that she had done in her courses up to the point of the
accident. By Christmas she had gained 10-15 pounds.
[18]
Although she was stiff and in pain, Ms. Litt attempted to carry on
with the full load of five courses for which she was registered in the spring
2004 term. She eventually had to drop one of them because it took place in a
lecture hall with uncomfortable seats that aggravated her symptoms.
[19]
In general, she was having difficulty managing her pain. Her neck and
back constantly hurt while she was studying and her left leg would become
painful if she had to sit for a prolonged period. Exercise hurt as well, but
she did not want to manage her weight by watching what she was eating — I
infer because of her fear of returning to her former anorexic preoccupation
with diet.
[20]
She had a hard time falling asleep because her brain was going all over
the place and she was uncomfortable. This would last until 3:00 or 4:00 in the
morning.
[21]
The pain made it difficult to concentrate on her schoolwork and her mood
became very angry. A particular source of her frustration was her inability to
assist in her mother-in-laws care because of her own injuries. This caused her
to shut down and avoid interaction with other family members in the home.
[22]
Ms. Litt agreed however, that in January of 2004 she had probably
told a physiotherapist that she was feeling improvement overall. She thought
this may have meant that she was feeling improvement on that particular day
however. She agreed that she probably or could have made comments such as
feels good, feels improvement in spinal and shoulder pain, has been doing
better and feeling better – has been busy with school to the physiotherapist
during her various visits in January and February. She also agreed that after
being discharged from the physiotherapists care it was recommended that she
continue with exercise three times per week. She believes that these
physiotherapy sessions ended because that was the end of the funding for them,
I infer as part of her Part 7 benefits.
[23]
When she tried to get back into running for fitness purposes, her left
knee hurt. Her physiotherapist told her to walk instead. In addition, she
lifted light weights and used large elastic bands for stretching.
[24]
At some point after the accident, she and her husband moved into another
home that was also owned by his parents, down the street from the family home. Ms. Litt
denied the suggestion in cross-examination that the reason for the move was
that she was not getting along with her in-laws. She explained that they were
asking her husband what was wrong with her, but the main problem was just that
she wanted to distance herself from everyone. She denied that her in-laws
attempted to dissuade her from getting counselling for her difficulties — they
simply did not understand why she needed it.
[25]
She agreed that by the time she saw Dr. Lee, her family physician,
in May of 2004, her neck was feeling a lot better, although there were days
when it was not.
[26]
By the summer of 2004 she had gained 40 pounds. Her mood was awful —
she felt angry, upset and helpless. Her weight gain impaired the sexual health
of her marriage as well. She felt gross and would not allow her husband to
pursue sexual activity with her. She would not change clothes in front of him.
She agreed however that her urinary system issues from which she had suffered
for several years caused an additional problem with the sexual relationship
between them.
[27]
In June of 2004 she attempted to commit suicide by taking 15-20 Tylenol
3s. She described this as an impulsive action, which had occurred in a moment
of weakness. She said that she had also had suicidal thoughts back when she
was suffering from anorexia. In cross-examination she elaborated that she was
frustrated with the stage of her recovery from her accident injuries and also
suspected that her husband was having an affair because of the effects of her injuries
on their sex life.
[28]
She took three courses in the summer of 2004 to try to catch up in her
studies. She tried to avoid classes that took place in the lecture hall and
split her class times up as much as possible. However her neck would irritate
her and become very tight when she was studying. She also experienced pain in
her neck and upper and mid-back, and would sometimes spread to her lower back.
As well, she had increasing pain in her left shoulder near the base of her
neck.
[29]
In general, her neck, shoulders, and upper body would become painful
from computer work, sitting at a desk or in one position for too long, and
household activities that involved extending her arms. She treated herself with
heat, ice and by moving around and stretching. Another physiotherapist she began
seeing gave her positions for her daily activities that were intended to reduce
her discomfort.
[30]
She agreed that she had probably told Dr. Stewart, the
physiatrist who prepared reports on her behalf for the trial, that her lower
back problems had resolved within less than a year after the accident, which
would be at around this point in the narrative. Her lower back would still
flare up, but was not her primary concern anymore after that.
[31]
Unfortunately things continued to decline for her in the 2004-2005
school year. Her weight increased and her mood worsened. She had difficulty
managing her pain and found that her memory and concentration were poor.
[32]
She had very little sexual contact with her husband and was again
preoccupied with the possibility that he would be unfaithful to her. When they
did have intercourse she found it painful because of her back, although she
agreed with the suggestion that her urinary problems also made sex difficult.
She accepted that she had told her urologist in April 2006 that the urinary
condition made her want to avoid sex altogether.
[33]
Her weight rose to 170 pounds and she began to have the same kinds of
thoughts about stopping eating that she had had when she was anorexic.
[34]
In the summer of 2005 she had the services of a personal trainer through
ICBC (I infer as part of her Part 7 benefits from the first accident) and was
successful in losing 20 pounds. While she was happy to lose weight, her pain
symptoms remained and her mood continued to go up and down.
[35]
During this period she made what she now considers to be an unwise
decision to start taking a so-called fat burner product called Xtralean,
which contains ephedra. She found her workouts painful and took the product to
lose additional weight in order to be able to push through the pain. When she
stopped taking it, she suffered a physical and mental crash.
[36]
She agreed that she had told Dr. Lu, the psychiatrist who prepared
several reports on her behalf, that during this period she was weighing herself
four or five times a day and having irrational thoughts, such as that water
could cause her to gain weight.
[37]
A further negative development in 2005 was that she caught her husband
watching pornography. She was devastated by this discovery and considered it
to be further evidence that he would be unfaithful.
[38]
She slept poorly during this period — her brain was constantly racing
and the pain didnt help. In general she felt significant anxiety, had the
feeling that she could not breathe properly and was really shaky all the
time.
[39]
She signed up for five courses in the fall of 2005 but eventually
withdrew from three of them, based on advice from Dr. Lee that she needed
to take a break. She had difficulty pushing through with schoolwork because
of her pain and her mood continued to worsen. Her problems with concentration
and memory continued. She decided to take the spring 2006 term off to try to
get herself back on track.
[40]
Ms. Litt and her husband received couples counselling from Dr. Lee
and also attended a sex therapist. This assisted her in no longer being
threatened by her husbands use of pornography. She made efforts to accept her
physical pain as chronic and to employ more effective techniques to allow her
to study, exercise and sleep. At Dr. Lees suggestion that she try to be
more social, she returned to her involvement in doing makeup, with adjustments
in her equipment to avoid aggravating her symptoms.
[41]
Overall her time off from school was beneficial. She took some courses
in the summer of 2006 and continued her schooling in the fall. She felt that
things were beginning to improve by the end of 2006. Her marriage was better
and surgery for her gynecological condition removed the additional barrier to
sexual contact that she had been experiencing. Before that surgery she had told
the consulting gynecologist that sex was always painful because of that condition.
[42]
Her weight was down to 140-150 pounds and her self-image improved. She
was happy with her schoolwork and started to feel better about herself.
[43]
In the winter of 2007 she went through interviews for a position with
the Royal Bank of Canada (RBC) and was eventually hired for a position to
start in May of 2008, after she graduated. She was not really concerned about
her ability to handle the job at RBC in light of her injuries — she knew that
it would be a bit of an issue but felt she would find methods around it.
[44]
Ms. Litt completed her degree successfully and was valedictorian of
her graduating class, although it is not clear from the evidence whether that
honour was entirely related to her academic performance.
[45]
Her position at RBC was in the account manager training program, which
was intended to lead to a full-time position in that role. An account manager
is essentially a personal financial advisor for the banks customers, dealing
with such matters as accounts, loans and credit cards. The manager performs a
net worth assessment for the customer and discusses what services they may
require. Ms. Litt described this as opportunity spotting. The sales
aspect of the job involves providing the customer with the appropriate bank
product, such as a RRSP or a mortgage.
[46]
Account managers have customers referred to them by their receptionist
or by the branchs tellers. In addition, they have a pipeline — a database
containing information about customers who may need additional services — and
they are expected to call these customers to drum up additional business.
[47]
Success in the account manager role is based on making customers want to
return to them for additional service. This involves doing a lot of smaller
applications at a high volume. One is starting from nothing in terms of a
client base and has to build it up, which Ms. Litt emphasized required
hard work.
[48]
The position had a salary component, with a salary range for each
classification, plus a bonus based on a combination of individual, branch and
overall bank performance. Employees also have an option to receive up to 10% of
their salary in share options, a portion of which will be matched by the
employer.
[49]
There are also senior account manager positions. In this role one is
more of a high level financial planner and adviser, with ongoing relationships
with customers who have more complex financial needs.
[50]
She said that she excelled in her trainee role and was offered a
permanent account manager position in July. She developed positive
relationships with customers and received gestures of appreciation from many of
them.
[51]
Her accident symptoms were affected by the work however. The job
involved being on the computer all day and her neck and upper and middle back
would become very tight as a result. She would come home exhausted and do
stretches, and also apply heat and ice.
[52]
She agreed that she told Dr. Stewart that she was able to do the
job, but needed to take frequent breaks to stand and move.
[53]
In the fall of 2008 Ms. Litt discovered that she was pregnant.
Although she and he husband were planning to begin a family now that she had
finished school and was working, this pregnancy occurred more quickly than she
had expected.
[54]
As she got bigger during the course of the pregnancy, her middle and
upper back started getting tighter, causing additional discomfort. She also
developed gestational diabetes. She felt exhausted and in January 2009 her
doctor recommended that she reduce her hours. RBC was unable to accommodate a
part-time person in her position. Ultimately she took a leave beginning in
March of 2009, which she funded by employment insurance sickness benefits.
[55]
Her son Jonah was born on June 1, 2009 and she took maternity leave
following his birth. At the time of her sons birth her weight had risen to 238
pounds.
[56]
She had to take various measures to minimize the pain from her injuries
when she was caring for her baby, for example when breastfeeding him. Her
husband also carried him whenever possible.
[57]
She described this as a fantastic period of her life — she was
learning to live with her pain and finding ways to do the necessary mothering
activities. Although she had gained weight, she thought of it as mommy weight
(that is, a consequence of the pregnancy) so the gain did not affect her
self-image to the same extent as it had previously.
[58]
Ms. Litt returned to her previous position in June 2010, after her
maternity leave ended. Her mood was pretty good. She had never pictured
herself as a stay-at-home mother (beyond maternity leaves, I infer) and was
looking forward to returning to work. She and her husband were planning on
having more children but she wanted to get into her career first.
[59]
Her husband was able to work afternoon shifts in his job at Air Canada,
allowing him to care for Jonah for much of the day. He then left him with Ms. Litts
mother or his mother and she picked him up from there at the end of her work
day.
[60]
Around this time she was helping to decorate her cousins house for a wedding
when she fell off of a small ladder, from four steps up, onto a grass and
cement area outside. She landed on her buttocks and was a bit sore the next
day. Her doctor told her to take some time off and she believed she took a few
days.
[61]
After spending a few weeks at a different branch to catch up on various
changes that had occurred while she was on leave, Ms. Litt returned to her
former branch and position. She would arrive between 8:30 and 9:00 in the morning.
Depending on how much work she had or wanted to do after the branch closed, she
would stay anywhere between 5:00 to 6:30, or even 7:00. It was about a 45-minute
drive to her home in Richmond, which was not a problem for her at that point.
[62]
She had good days and bad days with her symptoms once she returned to
work. She had learned how to manage them, but working on the computer still
bothered her and her neck and upper and mid-back would be sore by the end of
the day.
[63]
She experienced some discomfort during worship from sitting on the floor
of the temple, which is normally required in her faith, but was reluctant to
use the benches that were also available unless she really had to.
[64]
Her weight was a little bit less than it had been at the time of Jonahs
birth. She felt better about her body image than she had previously (closer to
the accident), even though her weight had been lower then. The relationship
with her husband was good, and she had a lot of family support. She also
continued to pursue makeup as a hobby.
[65]
She resumed her sales success upon her return. She was rewarded with a
promotion to senior account manager at the Guildford branch. This carried with
it a salary increase into the $48,000 per year range, with the eventual
possibility of increasing it to as much as $70,000.
3. The
August 23, 2010 Accident and its Effects
[66]
This second accident occurred before Ms. Litt was actually able to
take up her new position. In the late afternoon of August 23, 2010, she was
travelling home on Highway 91, in the left lane. Traffic was stop and go and
when she stopped at one point her vehicle was rear-ended by a pickup truck
driven by the defendant Peter Ratsoy. She had seen his truck in her rear-view
mirror a few seconds before and made an unsuccessful effort to move into the
right lane, which was clear, to avoid the collision. At the point of impact she
recalled being jolted and then moving forward and back.
[67]
In the two weeks following the accident, her neck and entire back were
sore, as well as her right leg. She suffered from headaches and felt scared
and had difficulty sleeping because of this emotional state, which included
nightmares about the accident. At times she also felt like she could not
breathe. It was difficult to wash, use the toilet or attend to her personal
grooming because of her stiffness.
[68]
She stayed with her mother, who cared for Jonah. She was unable to
breastfeed him because of the pain from her injuries, which made her feel
guilty. She became preoccupied with the possibility of getting into another
accident while Jonah was in the vehicle.
[69]
The stiffness got better after a few weeks, but the scared and shaky
feeling continued.
[70]
Ms. Litt was off work during this period, on what I infer was
short-term disability. When she returned to work in October, it was on a
full-time basis, at her new branch.
[71]
The return was not successful. She experienced significant pain in her
neck and upper back when sitting at her desk. She also felt hot, had headaches
and her heart was beating really fast. She was told to go home by her new
manager on the first day. She believes that she tried again on the second day,
with the same results. Part-time work was not available and she was told by RBC
to pursue the possibility of disability coverage through the insurer.
[72]
She spoke to Dr. Lee and he discussed the possibility of referrals
to physiotherapy, a pain clinic and a psychiatrist. She began to receive
physiotherapy in October. She was prescribed medication for anxiety,
inflammation, pain and sleep problems.
[73]
By November she was experiencing a clenching tight knot in her neck and
significant stiffness in her upper back area, which also felt hot and
throbby. There were also stabbing sensations and feelings of numbness at
times. The pain was significantly more than she had been experiencing before
the second accident.
[74]
Because of the pain, her sex life with her husband was non-existent.
She had gained a lot of weight and her body image was poor. Her mood was
really going down.
[75]
Through her husbands job they had the opportunity to go on a cruise at
a discount and Dr. Cohene, her psychologist, encouraged her to take the
opportunity in order to have some fun.
[76]
She began to see Dr. Mok, a psychiatrist, who in turn referred her
to Dr. Cohene for the talk therapy portion of her mental health
treatment. She said that Dr. Cohene worked with her on her mood, helping
her to learn to relax. This included working on her breathing, attempting to
relax different parts of her body and becoming more aware of the input of her
senses. He also helped her with her anxiety in connection with driving.
[77]
She was having some suicidal thoughts during this period, but she made a
pact with Dr. Cohene to call him if she felt inclined to act on them.
[78]
In February of 2011, she came under the care of Dr. Weiss, a
physiatrist, for her pain issues.
[79]
Her eligibility for disability coverage was disputed by the insurer, who
maintained that she was not completely disabled by her symptoms. Ultimately she
was required to relinquish her promotion in March of 2011, in order to receive
a leave of absence. RBC agreed to find her a position as account manager, her
previous position, on her return. Since her only other option was quitting, she
accepted this resolution of the issue.
[80]
She then attempted a return to work in June of 2011. By then her mood
was starting to improve and her pain was mostly in her neck, upper and
mid-back. This return was a graduated one, with her hours gradually increasing
to full-time over a four-week period. Her manager was very supportive. She did
a lot of work that would normally be done by a senior account manager,
particularly after one of the people in that position left the branch.
[81]
Her weight was up, so she engaged a personal trainer near her office for
sessions two to three times per week, as well as exercising on her own. She
needed to take the weight off but her main intention was to feel better
physically.
[82]
She would just come home from work and crash. By the end of a full
week of work she would really be struggling. The pain in her neck and upper
back was not decreasing. She needed a lot of help with her son. She had very
little involvement with her makeup hobby.
[83]
She was not able to give a clear explanation to a question on
cross-examination about the extent to which she had asked for accommodations
from RBC for her condition, or whether any changes were made to her workspace
as a result of an ergonomic assessment that RBC had arranged.
[84]
By October and November she was having flare-ups of her pain as a result
of pushing really hard with her work and began to have some absences from
work. In November Dr. Lee told her that she should be off work but her
manager said he needed a full time body. However he offered her a leave
without pay to get better, for which she was grateful. She looked on this leave
as a time to heal. She applied from employment insurance sickness benefits.
[85]
In January 2012 she began receiving trigger point injections into the
affected tissues of her back from Dr. Weiss. These took the edge off of
some of her pain. Her knee and lower back pain were better and her upper back
pain was settling, but her middle back was not experiencing much relief. She
exercised a lot with an elliptical machine in her home, did the stretches that
her physiotherapist recommended and pursued the techniques for attaining
relaxation and balance in her life that she received from Dr. Cohene and Dr. Lee.
Her mood was a bit more optimistic because she was taking steps to improve.
[86]
In April of that year, she took a trip to Mexico to attend a friends
wedding. She also took a trip to Europe that year.
[87]
After discussions with her doctors, the insurer and the regional vice-president
of RBC, she was approved for entry into the bank teller program, after which
they would find her a job as a teller in the region for 25 hours a week. This
return to work began in June. It started with full-time teller training from
Monday to Friday, 9:00 a.m. – 5:00 p.m. She had understood that there
would be no problem accommodating her various medical appointments.
[88]
In reality, there were problems. There was no opportunity to get up from
the computer during training and the breaks were only at set times. Because her
pain was increasing she left an hour early on one day and on Dr. Lees
advice took the Friday off. When she presented a note from him to her manager
on the Monday and said that she would need time off for an appointment with Dr. Weiss,
her manager told her that this was all unacceptable. Her doctors advised her
that she needed to get reduced hours and were going back and forth (I infer
with the insurer and/or the employer) on this issue.
[89]
After this return to work did not work out she began eating a lot and
was not paying attention to her weight, which increased. Her mood began to
decline again and she resumed seeing Dr. Cohene.
[90]
It was during this period that she pursued another ill-advised
alternative health option — this time taking a hormone prescribed by a
naturopath to assist in weight loss and drastically reducing her calorie
intake. Dr. Weiss told her to stop as soon as he found out about it, which
she did.
[91]
Her symptoms affected her functioning at home in various ways — they
would be aggravated by the movements involved in cleaning and other repetitive
tasks, or by siting in one place for too long. Her soreness would increase each
day, eventually leading to a flare-up of the symptoms.
[92]
She started looking for other part-time jobs but found that there was
not much out there.
[93]
Ultimately RBC was able to provide her with a 25.5 hour per week
position as a teller at its branch in Ladner. She was permitted to take
electronic classes and separate training, to avoid the requirement of full-time
hours during the training period. After completing her training she was given a
shift of five hours per day, five days a week. She was happy to be back at work
but not happy to be a teller, given her previous accomplishments. Her
frustration at not being able to do the job she had previously earned led to
the ultimate low in her mood, which she raised with Dr. Lee.
[94]
She would have good days and bad days in terms of her symptoms. She was
still not able to do much at home and depended on help from her family.
[95]
After Dr. Lee encouraged her again to pursue activities that she
found enjoyable, she volunteered as a member of the makeup crew for a South
Asian film awards show that was held in Vancouver over three days in April
2013. This was during a period in which she had returned to work, but her
doctor had recommended that she take time off work for a little while because
her depression was getting really bad. She did makeup for only a few
performers throughout each day and there was a lot of downtime in between. The
required makeup was also simple and the same for each performer. The total time
on duty was nine or ten hours each day. Nevertheless, she was tired and sore at
the end of each day and completely exhausted by the end, to the extent that she
did not go out to celebrate with her fellow volunteers when it was over.
Taranjeet Dhinjal, who worked alongside Ms. Litt doing makeup, described
the same kinds of duties. She also noticed that Ms. Litt became tired from
performing them, to the extent that she turned down an offer from Ms. Dhinjal
shortly after to do makeup on a photo shoot, because she was done from the
weekend.
[96]
Eventually RBC switched her to 25.5 hours per week over four days. She
found the drive to work from Coquitlam to Ladner very tiring.
[97]
In October 2013 Ms. Litts weight had reached a critical level of
257 pounds. She started following a diabetic diet to assist in weight control.
[98]
She attended a functional capacity assessment for this litigation in
December of 2013, which I will describe in more detail in reference to the
report of Robert Gander, who conducted it. She pushed herself hard, because the
assessor needed to see what she could do. Her back hurt afterwards but her
employer had been expressing concern about her absences from previous pain
flare-ups, so she asked her doctor for something to assist her in being able to
keep working. He gave her samples of an additional pain medication. The pain
flare-up after this assessment lasted for a month.
[99]
Things were very bad at work in early 2014. She would push and push
and then have a flare-up that required her to miss a few days. In addition she
got bad cases of flu and then bronchitis.
[100] All of
these absences led to her manager giving her a corrective action letter. In
essence she was told to either go back to the disability insurer or quit. She
felt that the work environment was very negative and they were looking for an
excuse to fire her. Finally her situation became so acute that on March 20th Dr. Cohene
and Dr. Lee pulled her off of work. Once again, her efforts to receive
disability coverage were unsuccessful because she was not seen as being
completely disabled.
[101] In May of
2014 she began attending a gym in Port Moody that provides personal training to
assist her with strengthening her back and achieving healthy weight loss. She
began at 240 pounds and while she is still not weighing herself, she believes
that she had gotten down to 180 pounds by the trial, this time in a healthy
manner. She does the stretches and core strengthening exercises that she has
been given religiously.
[102] Her
symptoms have not really changed, she said, but she feels that with the weight
loss her flare-ups are of shorter duration. She agreed that in June of 2014 she
told Dr. Cohene that she was happier than she had been in a long time.
[103] In general
she says that she has realized that she has to learn to live with her
disability. An important aspect of that is to break physical tasks into
manageable steps and to take frequent breaks. This has put her in a better place
in terms of her outlook. The sexual health of her marriage is also good. In
addition to her personal training and physiotherapy, she also continues to see
her psychologist.
[104] As of the
trial dates Ms. Litt was scheduled for a facilitation meeting with RBC
to discuss a return to work. Her hope was to obtain a schedule that involves
working two days, with a day off to recover, followed by two more days. She
also planned to request a transfer to a different branch, to improve her
working atmosphere.
[105] Although
she agreed that Dr. Cohenes clinical notes refer to her potentially
making a human rights complaint in relation to her employment, she said that
was something that he had suggested and that she did not think that anyone
there had treated her unfairly. Despite this assertion, she was not able to
give a coherent explanation of the subsequent entry in his notes that she felt
mistreated by her employer.
4. Ms. Litts
Responses to the Defendants Theories
[106] Ms. Litt
was cross-examined extensively on the alternative explanations for her current
situation that the defendants put forward.
[107] One of
these explanations is that her position with RBC is less important to her in
the scheme of things than her extensive involvement in a family homebuilding
business.
[108] Ms. Litt
and her husband have been involved in building four houses with her father over
the last five years, including their current family home, which is in the range
of 5,000-6,000 square feet. She was not able to give a precise square footage
when asked. Two of the previous homes they built were eventually sold and one
was transferred to her brother. The last house they built before their current
home sold for more than $1 million.
[109] She said
that this homebuilding business is carried out mainly by her husband and
father, a millworker who has become involved in construction as a significant
additional occupation over the years. The process involves him purchasing a
property in her and her mothers names. She would make any necessary
applications in relation to the development and take a role in the decorating
of the house, but that was the extent of her role.
[110] Her father
has taken her to the City [Hall] a couple of times to do some stuff and told
her to list herself as the contractor on the building permits.
[111] She and
her husband briefly lived in two of the houses that they had built before their
current home, although their tax returns continued to show their Richmond
residence as their home. She was not able to give a straightforward answer
about their ability to avoid capital gains tax in relation to the first home
they had built because they had lived in it. She said that she had spoken to
the Canada Revenue Agency in relation to having moved into the second of the
homes for a little while and apparently no tax was payable in relation to
that one either.
[112] She agreed
that she and her husband had been sued by the excavators for their current home
and that they and her father had met with the excavators to negotiate a
settlement. She and her husband had also seen a lawyer over the dispute and she
attended the settlement conference in Small Claims Court and assisted him with
the correspondence concerning the lawsuit.
[113] Construction
of her current home in Coquitlam began in March of 2013 and they moved in about
a year later. She attended the construction site more than she has for past
houses because her son was being cared for by her mother in Coquitlam and she
would go there to pick him up. Her husband was also at the site on his four
days off per week from his regular job.
[114] The
defendants also pursued the theory that there were other banking-related jobs
that Ms. Litt could pursue that would give her greater flexibility. When
questioned, she could not recall whether she had asked to be considered as a
mobile mortgage specialist at RBC, although she said that she was open to all
possibilities. Among her concerns about such a position is her understanding
that it is full-time, 100% based on commission, and requires research and
networking to turn up clients. It is a lot of work according to her and in
order to make sales you are working full, full, full.
[115] Private
lending institutions also only offer full-time positions, she believes. Such
positions are even more strenuous, she believes, because one is going from
place to place throughout the day.
[116] She has
applied for internal part-time positions through RBC but has not looked into
other banks yet. Although she still has an interest in banking she has also
applied for part-time positions at the City of Coquitlam, although she could
not recall which ones specifically.
[117] On a
related point, counsel for the defendants reviewed the number of activities
that Ms. Litt was required to drive Jonah to during his pre-school, to
support the proposition that she was immersed in child-rearing activities
during that period and is more interested in pursuing it than a return to RBC..
She emphasized that her husband and another family member assisted with the
driving and that Jonah also had to miss some sessions of the activities.
[118] Another
important proposition relied on by the defendants is that Ms. Litt was
significantly at odds with her husbands family during the time that she lived
with them, and that they were unsupportive of her situation after the first
accident.
[119] She said
that being unhappy with them was not the only reason that she and her husband
moved down the street. All her in-laws would do in relation to her
post-accident behaviour was to ask her husband what was wrong with her, she
said, because they did not understand what was going on.
[120] When she
told Dr. Lee in 2004 that she was having problems with her in-laws it was
because she was going through a hard time and having problems with everyone,
and she felt that they were upset with her. She felt guilty for not
contributing and was distancing herself from everyone. She did not recall a
later entry in the records in which she apparently told Dr. Lee that her
sister-in-law causes stress but explained that she herself was not a very
happy person at that time. She agreed that in November 2005, at the time that
she began taking the fat burners, she had told Dr. Lee that she was
stressed with Narinder and family.
[121]
As late as May of 2007 she told Dr. Stewart that she was living
with traditional in-laws and did not feel supported by them. She attributed
that feeling to the fact that she was not able to contribute because of her
injuries. Finally she agreed that during her examination for discovery she had
given the following answer concerning her in-laws:
As an East Indian daughter-in-law
I had certain obligations in the household
[T]hey were really unhappy with me
that I wasnt doing stuff around the house that I should have been. They were a
little bit evil about it.
[122] While
conceding that she felt that way at the time, looking back she feels that while
there were times that they were frustrated and difficult with each other, they
were not evil to her.
[123] Similarly
her in-laws position in relation to her getting counselling was to ask her why
she needed it, tell her she was fine and say that they were there for her.
Because her father-in-law has bipolar disorder her husbands family equated
counselling with that level of mental illness. She also maintained that she
needed counselling to help her cope with the effects of the accident, not the
controlling efforts of her in-laws and her husbands pornography use. However,
she agreed that she had told Dr. Stewart that she was never allowed to
go to counselling.
B. Supporting
Observations
a) Narinder
Johal – Spouse
[124] Mr. Johal
confirmed that before their marriage he and Ms. Litt discussed putting off
having children until they had both finished their schooling. He described her
as ambitious and a go-getter — interested in pursuing an executive-type
career. When she began attending Langara she was a hard worker.
[125] In the
months after the 2003 accident he observed her stiffening up and noticed an
area of swelling to the right side of her back. She was taking medication for
the pain, was always tired, spent a lot of time in bed and in general was not
as able to assist his injured mother in the way that she had before the
accident. Once she returned to Langara she would come home from her classes totally
exhausted.
[126] Before her
2004 suicide attempt, he said that she felt worthless, did not want to do
anything and just wanted to sleep.
[127] She then
had to contend with her significant weight gain, which made her feel very
unattractive, although he attempted to reassure her.
[128] It was
difficult for her to study constantly because of her pain, so she would have to
cram whenever she was physically able.
[129] His
impression of her condition up to the time that she graduated from Langara was
that she would have good days, followed shortly after by a decline that would
see her not wanting to get out of bed.
[130] Despite Ms. Litts
concern about how a pregnancy would be affected by her physical condition, they
began to try after she began working at RBC. His observation during the early
stages of her career was that she loved her job and was able to manage her
pain. However their sons birth in 2009 placed additional physical demands on
her that she was not able to cope with because of her symptoms. These demands
increased as their son grew. She needed a lot of help with childcare, much of
which Mr. Johal provided.
[131] His
impression was that after her maternity leave Ms. Litt was eager to return
to work. She wanted to get established in her career so their plan was not to
try to have second child for two or three years. As a result she was very happy
to earn a promotion after her return.
[132] After the
second accident his initial hope was that she would just shake it off as she
had done before. Unfortunately in addition to the physical symptoms to her neck
and back, her mood began to deteriorate. She was so tired that she was unable
to interact much with their son.
b) Sarandeep
Dhaliwal – Sister
[133] Ms. Dhaliwal
is four years older than Ms. Litt. She is a registered nurse and teaches
in the nursing program at Douglas College.
[134] The
potential support of her evidence for Ms. Litts case is mainly in its
rebuttal of some of the defendants theories about Ms. Litts true
motivations underlying her injury claims.
[135] Ms. Dhaliwal
maintained that Ms. Litt had no difficulties with her mother-in-law, whom
she described as very supportive, very nice.
[136] She also
rejected the likelihood that her sister had any plans to be a stay-at-home
mother, considering her instead to be very career-focused.
[137] Perhaps
most importantly, she explained that she is the sibling who assists their
father in his construction business, acting as his sidekick and doing all of
the business-related paperwork. She is also the one who deals with her fathers
suppliers. According to Ms. Dhaliwal, Ms. Litt has no involvement in
the business and her role in the houses that their father and Mr. Johal
have built has consisted only of selecting colours and tiles.
[138] Her
observations of the effect of the first accident on Ms. Litt were quite
general. Her sister was always in pain and experienced difficulty after Jonahs
birth with breastfeeding him, lifting him and moving his baby seat.
[139] After the
second accident she observed that her sister was in a lot of pain and that her
medication made her sleepy and slow-moving. The effect on her mood was that she
was always angry and yelling at her family members. She couldnt do
anything with Jonah and during Ms. Dhaliwals visits she was typically
lying on the couch or the bed. Ms. Dhaliwals perception is that Ms. Litt
is knocked out for several hours after attending her appointments and that in
relation to activities such as cleaning and baking she would start them but be
unable to finish. She attended family events for the sake of being present but
was unable to participate beyond that presence. Ms. Litts belongings are
still not fully unpacked after her move to her new home, beyond the bare
necessities. She said that Ms. Litt does not want family members to come
over because of the homes untidiness.
[140] However
she noted that Ms. Litts more recent involvement with a personal trainer
had made her much happier and that she was now losing weight the proper way
through healthy eating and exercise.
c) Kulwinder
Johal – Mother-in-law
[141] Mrs. Johal
testified through an interpreter.
[142] She
confirmed that after her son and Ms. Litt were married and began to live
together in her home she and Ms. Litt cooked jointly together for the
entire family. Ms. Litt was also involved in cleaning. After she suffered
her broken leg and became bedridden in the home, Ms. Litt made all the
food for the family, did the cleaning and assisted her with toileting. Overall
she described Ms. Litt as having good health and a nice personality
before the 2003 accident.
[143] After the
accident Ms. Litt was not normal and she started having rest. Mrs. Johal
saw swelling to Ms. Litts upper back and shoulder area two or three days
afterwards. It was now hard for Ms. Litt to assist her with her
convalescence or to do much cooking. When she tried to do housework she would
complain about soreness in her back. As to mood, she observed that Ms. Litt
was cranky and would just want to sit and not talk to anyone. She was unable
to do anything. This led to the decision to move Ms. Litt and Mr. Johal
to their own accommodation down the street.
[144] More
recently she has noticed that Ms. Litt is exercising and that her mood is
better than previously. However like Ms. Dhaliwal she noted that even
after having been in their new home for five or six months, Ms. Litt and Mr. Johal
still have bags of clothing that have not yet been unpacked.
d) Sophia
Maras – Friend
[145] Ms. Maras
is a childhood friend who has been able to maintain her relationship with Ms. Litt
into adulthood, despite periods in which their respective responsibilities
interrupted their contact.
[146] Although
they were attending different schools when Ms. Litts anorexia nervosa was
at its worst, Ms. Maras did see her at her lowest weight and also
witnessed her return to health when they were back at the same school in their
senior grades.
[147] Before the
2003 accident she found Ms. Litt to be really big into her studies and
very career-focused. Her sense was that Ms. Litt was intent on finding a
way to juggle her career responsibilities with having a family.
[148] Her
overall observations were that after the first accident Ms. Litt put on
weight, was in pain and couldnt do the things she used to do. After the
second accident Ms. Litts weight went really crazy. She also found that
Ms. Litt seemed depressed or just stuck in a rut and that there is a
significant difference between her pre- and post-accident personalities. More
recently Ms. Litts mood has been better, and Ms. Maras said that she
is starting to see signs of the old [that is, pre-accident] Kelly.
[149] Like Ms. Litts
family members, Ms. Maras, who has a child of about the same age, observed
that Ms. Litt was unable keep up with Jonah physically.
C. Ms. Litts
Work Performance, Future Career Possibilities and Potential Earnings
a) Overview
of Career Paths
[150] The
evidence of the RBC witnesses provided a consistent description of the main
career options for an employee who held a senior account manager position, to
which Ms. Litt had been promoted just before the second accident.
[151] In essence
a person who succeeded as a senior account manager and who wanted to progress
beyond it could pursue two basic streams — sales and leadership.
[152] Sales
would involve positions as a mortgage specialist or investment and retirement
planner, both of which are based entirely on commission, or as a financial
planner or account manager for small business, which have a salary that is
supplemented by bonuses. The commission positions have the potential for higher
earnings — often well in excess of $100,000 per year — but require
significant additional work hours and the constant pursuit of new clients.
[153] Pursuing
the leadership stream would involve the senior account manager seeking out a
position as manager of client care who has responsibility for supervising the
service employees, tellers and day-to-day operations, possibly followed by a
stint as assistant branch manager in branches large enough to have such a
position, eventually leading to a position as a branch manager.
[154] One of the
witnesses referred to additional options — in bank operations, mobile
positions providing group savings plans or group financial services, or
securities — but these were not developed in as much detail or put forward as
options that Ms. Litt might have wished to pursue.
b) Paul
Kang – Former Manager
[155] Mr. Kang
was the manager of Ms. Litts branch from the time of her arrival as a
trainee account manager until he left for another position in August of 2010.
His impression of Ms. Litt in the account manager role was hardworking
individual, extremely positive, had great client interactions. The feedback
from clients on her was always positive. Mr. Kang looked to her as an
example for other employees. At one point he wrote an email describing her as
one of the better trainees on the team.
[156] He was the
one who suggested her for the promotion to senior account manager at the
Guildford branch. The number one reason was the way she treated clients and her
ability to get them to agree with her recommendations. The promotion was
intended to be permanent.
[157] He said
that as of about three years ago, RBC no longer offered part-time positions as
account managers or senior account managers. They have compressed work weeks
and shifts that start at different times, but there is no scope for reducing
the overall hours required. Typically senior account managers would spend about
two-and-a-half years in that position before moving on to a sales role he said,
but someone who showed ability could be put into one before then. Some
employees are content to remain in an account manager or senior account manager
position for many years.
[158] Mr. Kangs
current role is to oversee 22 mortgage specialists in his local market. The
goal is for these specialists to make six figures and 75% of them are able to
do so. More than a 40-hour work week is required to do well in such a position
and one cannot fulfill its minimum requirements — sales of $20 million per
year — without working at least 40 hours.
[159] He could
not speak to Ms. Litts suitability for a commissioned sales role and was
resistant in cross-examination to the idea that a mortgage specialist could
fulfil their job requirements by working part-time. For example one is not
entitled to the services of an assistant, to whom some tasks can be delegated,
until an even higher sales target is met.
[160] He also
stressed that there is not a lot of flexibility in the senior account manager
role — if one is there one is required to see clients, who are not supposed to
be kept waiting. These managers receive a 45-minute lunch hour and two 15-minute
breaks in a day.
c) Pardeep
Dosanjh – Former Manager
[161] He took
over from Mr. Kang as manager of Ms. Litts branch in August of 2010
and dealt with her during her first set of workplace difficulties following her
second accident, which took place later that month. He is currently the manager
of a branch in Vancouver. He began his career as a teller in 2003 and after
obtaining a position as an account manager progressed along the leadership
stream that I have described.
[162] He began
at the King George branch during Ms. Litts last week before she was to
take up her promotion in Guildford. His impression of her was that she had a
warm personality and was very outgoing. He did not observe that she had any
physical limitations and her mood was very positive.
[163] As a
senior account manager, Ms. Litt would be required to complete two
segments of a personal financial planner course within 18 months. It is done by
correspondence.
[164] He
supervised her graduated return to work following the accident, which was
recommended by Manulife, RBCs disability insurer, and took place in June 2011.
Manulife had recommended an ergonomic assessment as part of her return, which
RBC looked at. She was returning to an account manager position, but because
of her previous experience he decided to give her more responsibility.
[165] Mr. Dosanjhs
recollection was that after the graduated return she began to voice concerns
about her pain on a relatively frequent basis. Problems also began to develop
with her performance. Her work product and client relationships were still very
strong but tardiness was a big issue. He initially understood that she was late
because of physiotherapy and workouts that she was having earlier in the
morning. She then began to advise that her medication was making her drowsy. He
had numerous conversations with her about the issue, followed by a verbal
warning and then a written one in her file.
[166] He made various
suggestions to address the situation, including having her move to a branch
closer to her home. He was not able to reduce her hours because he needed a full-time
person in that role. (He echoed Mr. Kangs view that part-time positions
were currently no longer available at RBC.) They were getting frustrated with
each other, in his case because of her tardiness and just what I found at
times, [she] just wasnt meeting expectations at that point. She was always
strong with her clients however.
[167] Things
came to a head in December 2011. Manulife did not support any further leave, so
Ms. Litt asked for a six-month leave of absence. Because she was not
meeting expectations RBC decided to give her the time to recuperate. He said
that they did not terminate her because [s]he had been a valued employee
before. We wanted to see if we could get her back to that level again.
[168] Ms. Litt
continued to participate in RBCs benefits program during her leave, although
she would have to make her own contributions to it. The program permits
employees to allocate their coverage to areas that are of greatest benefit to
them, such as extended health coverage.
d) Hitkar
Poonia – Investment Retirement Planner
[169] Mr. Poonia
was entering his third year in his current position. Before that he had been a
senior account manager for one-and-a-half years and before that an account
manager for two-and-a-half years, both at the King George branch. He was there
when Ms. Litt started and assisted her with training because he was more
senior. From his perspective, she was competent in her position and her
personality during that time was happy and easy going.
[170] After the
accident his perception was that it was difficult for her to perform some of
her duties and to sit for long periods of time. She also seemed to be
experiencing some stress.
[171] As an
investment retirement planner his main role is to attract new business to the
bank. He relies on a combination of internal RBC referrals, his own network and
outside business activities to get business. He made between $150,000-$200,000
during the previous year but to achieve that had worked almost every day. While
the job has flexibility to allow him to attend to personal matters, it still
required him to put in between 60 and 80 hours per week.
e) Paramjit
Bratch – Mortgage Specialist
[172] Mr. Bratch
has been an RBC mortgage specialist since 2013 and for two years before that
was an assistant to another specialist. He also began as a teller with RBC and
progressed through the account manager and senor account manager positions,
spending several years in each.
[173] He worked
with Ms. Litt while he was a senior account manager and had a positive
impression of her work and personality. After her 2010 accident it seemed like
she was in pain and could not sit for long periods of time, although he left
the branch in August of 2010 so his direct observations of her in this state
must have been quite limited.
[174] He
described the critical difference between being a mortgage specialist and his
former roles in the branch as: youre a hunter/gatherer, rather [than] just
sitting around getting hand-picked clients. To get the position he had to be
able to sell, have a good network of clients and be a good employee. He
originally took an assistant role because he had just gotten married and wanted
some guaranteed income while he was trying it out.
[175] In his
current role every day involves making calls and doing mortgage applications.
For every mortgage he completes there needs to be 10-15 people in his
pipeline of prospective transactions. To get clients he has developed a
network of realtors who refer him work and he also networks with account
managers at RBC branches. In addition he gets work from family, friends and
people he solicits. He works eight hours per day, usually six days per week. In
his view to be successful one needs to have a good work ethic and put in a lot
of hours. The number of hours depends on how successful you want to be. He
expected to earn $120,000-$130,000 in the present year, $150,000 the following
year and upwards of $200,000 per year after that. By his third year he will be
expected to generate $40 million in business per year.
f)
William Smith – Former Regional Vice-President
[176] Mr. Smith
was called by the defendants, although his evidence assisted Ms. Litt as
well.
[177] He was the
regional vice-president for the area in which Ms. Litt was working at the
point that she gained her promotion to senior account manager. In 2012 he left
RBC to operate his own Dominion Lending Franchises.
[178] He
recalled meeting Ms. Litt during that period. She had done well as an
account manager in a branch that in his experience is not easy to transition
into. She was confident, articulate, smart and had an intangible piece that
enables her to interact in a confident but respectful way that had a warmth to
it. In his view, those traits would be important in a management or leadership
capacity. It was only in about 10% of situations that they would stretch an
employee by a promotion such as Ms. Litt received before their normal two-year
tenure period in the account manager role. It is possible that she would have
been moved up earlier if it had not been for her maternity leave.
[179] He did not
think that the requirement for senior account managers to complete two courses
of the personal financial planner program would be overly prohibitive in
terms of its difficulty.
[180] It would
also not have surprised him if he learned that within four years she was
working as a mortgage specialist.
[181] Mr. Smith
had a somewhat more expansive view of the possibilities of part-time positions
at RBC than Mr. Kang and Mr. Dosanjh, but this may be explained by
the date of his departure in light of the fairly recent elimination of those
positions that they described.
[182] Mr. Smiths
franchises use the services of licenced mortgage brokers, whose relationship
with his business is as independent contractors. They compete with banks on the
basis of their ability to offer more products, better rates and a more flexible
approval process.
[183] Once they
are up and running and have learned the role, his brokers can set their own
schedule, but they have to be able to meet the clients needs. The average
sales in the industry are $6.5 million per year, which would correspond to
earnings of about $65,000 per year for the broker.
[184] Most work
from home but can use the office areas at the franchises to sign documents with
clients. If a broker with disabilities wished to lease specific office space
they would be responsible for paying for their own special accommodations.
D. Evidence
of Experts and Treating Professionals
1. Physical
Injuries
a) Dr. William
Lee – Family Physician (Plaintiff)
[185] He
provided three reports — in 2009, 2012 and 2014, as well as an addendum to his
2012 report to conform to the requirements of the Supreme Court Civil Rules
after they came into force. As is typical for the reports of general
practitioners in personal injury cases, Dr. Lees reports essentially
summarize the relevant entries in his clinical notes, with various examination
findings and resulting diagnoses interspersed throughout.
[186] On the day
after her first accident, Dr. Lee noted swelling to both sides of Ms. Litts
cervical area (immediately below the skull), rhomboid muscles (attaching to the
shoulder blades) and lower back. This indicates swelling to the underlying
tendon or muscle. His impression was of cervical and lumbar strain.
[187] In
succeeding appointments in December he found tightness to her cervical, mid-
and lower back, impingement of her left shoulder and decrease in the range of
motion of her neck. By January he described her neck and shoulder as having
about 50-60% functionality, in contrast to 75-85% for her lower back by this
time.
[188] Problems
with her neck continued to be the subject of visits throughout 2004 and 2005.
Similar findings of tightness to her cervical and mid-back and decreased range
of motion in her neck were found during visits at the end of December 2005.
[189] Her neck
complaints continued in visits during ensuing years and tightness to the
cervical area was found during a visit in January 2008. The following month he
described the neck as being functionally
about 80 per cent, but noted that
certain household activities irritated it. Dr. Lee clarified that he uses
percentages of functionality as a means of illustrating the range of actions
that the patient is able to do. At 80% the patient should be able to do a fair
amount.
[190] As of the
completion of this report in March of 2009, Dr. Lee expressed the opinion
that Ms. Litt had reached a plateau in her recovery from these injuries,
which he considered to be quite serious. He felt that her neck and lower back
problems would be ongoing.
[191] In the
August 2012 report Dr. Lee described her as having been unable to work in
March of 2009 (27 weeks into her pregnancy) due to neck pain.
[192] He
characterized her fall from the small ladder in June of 2010 has having
aggravated [her] neck and back area.
[193] When he
saw her after the second accident he found tightness to both sides of her neck
and mid- and lower back, as well as tenderness in her right knee. He noted a
decreased range of neck motion on her August 31, 2010 visit.
[194] In
addition, Dr. Lee referred Ms. Litt to Dr. Mok (a psychiatrist,
as I mentioned previously) in relation to her anxiety about driving and her
sleeping problems. His impression on this issue was of post-traumatic stress
disorder (PTSD). He also started her on an anti-depressant, to be taken at
bedtime.
[195] From then
until the date of the completion of that report, there were regular visits
addressing Ms. Litts neck and back pain, low mood and difficulties with
working arising from her physical condition. He concluded the report with the
opinion that her progress was guarded and that she would have ongoing neck
and back pain. He felt that she could go back to work, but only on a permanent
schedule of four hours per day.
[196] The report
of July 2014 updated the ongoing narrative of her visits for neck and back pain
and depression. During an examination in January of 2013, which coincided with
her teller training, Dr. Lee found tightness to her neck and mid-back
areas and decreased range of motion to her neck. In May he found tightness in
her rhomboid and lower back and on another visit later that month he described
quite a bit of swelling to her right lower back and stiffness to her cervical
area.
[197] In June of
2014 he found that she was unable to go to work for three months because of a
worsening of her condition. Her neck range of motion was found to be restricted
on that visit as well.
[198] In
cross-examination Dr. Lee agreed that although his 2009 report purported
to include all of the relevant information with respect to the 2003 accident,
he had omitted various references in his clinical notes to her psychological
condition. This included references to her 2004 suicide attempt and her
reference to family as one of her stressors in life. He also did not include
references to counselling that he provided that he noted had dealt with her
husbands family and with sexual tension, trust, and anger, I infer in
the marriage. The implication was that he did not consider these psychological
issues to be related to the accident at the time.
[199] He was not
prepared to concede that he had necessarily omitted those references on that
basis. At one point he referred to preserving the confidentiality and privacy
of the patient as a potential reason.
[200] He
confirmed that his reference to Ms. Litts neck having 80% functionality
in February 2008 was based on what she had told him.
[201] With
respect to his records of Ms. Litts fall from the ladder in June of 2010,
he explained that some of the areas of pain that he had diagrammed in his notes
were the same as from her 2003 accident and some were different, so there could
have been a re-aggravation of the motor vehicle injuries from it. He agreed
that his entry in relation to the injury contained no reference to the
preceding motor vehicle accident injuries and that he had noted that she was
not to go back to work for a week.
[202] Finally,
he agreed that his assessment that there is tenderness to certain areas during
physical examination is dependent on the patients response.
b) John
Oldham – Physiotherapist (Plaintiff)
[203] He treated
Ms. Litt in 2010 and again in 2013 and 2014. Her counsel did not seek to
qualify him to give opinion evidence, but instead relied on his training and
experience to elicit what are contended to be some objective indications of her
injuries. Those were:
·
On her first visit in October of 2010 that her neck was
virtually frozen when she attempted to move it and that it stiffened
cranially (in the skull area, I infer) when he moved it.
·
She had a thoracic kyphosis — an inability to straighten the
spinal column. He worked with her on improving her posture.
·
She was chronically hyperventilating and needed to improve her
breathing before she could do meaningful exercise.
·
He found spasms and tension in the muscles of her ribs during his
manipulation of the area. His references in his notes to functional
manipulation of the ribs and thoracic area mean that he found tension in those
areas, even though he did not record them as objective findings. Without
objective findings he would not have engaged in that particular treatment.
c) Dr. Rosemary
Nairn Stewart – Physiatrist (Plaintiff)
[204] She
provided reports on Ms. Litts condition in 2007, 2010 (both prior to the
second accident) and 2014.
[205] In 2007
her overall opinion was that Ms. Litt had sustained soft tissue injuries
to her neck, upper and mid-back and her left knee in the 2003 accident,
resulting in ongoing pain and muscle tension headaches. The injuries also
caused some PTSD symptoms and relationship stresses.
[206] Dr. Stewart
attributed Ms. Litts weight gain to her inability to remain physically
active after the accident. In her opinion this gain created the risk of a
relapse of her anorexia nervosa.
[207] Because by
then it was more than three years since the accident, she expected that all of Ms. Litts
symptoms and limitations would continue in the long term, although the end of
her schooling and the prolonged sitting that was required would improve her
ability to manage her pain.
[208] She would
be unable to do physically demanding work and in sedentary jobs would need to
the flexibility to change her task and positions, and to take rest and stretch
breaks. At home she would need help with heavier housekeeping work and would
notice an increase in her symptoms when caring for young children.
[209] She
recommended that Ms. Litt undergo counselling for her PTSD, stress,
relationship issues and, if necessary, her eating disorder.
[210] On the
physical side, she recommended that Ms. Litt continue to avoid or limit
the activities that cause her pain, continue with regular stretching
activities, and pursue conditioning exercises — such as a gym program and
walking.
[211] At the
time of Dr. Stewarts 2010 report, Ms. Litts son was about six
months old and she was on maternity leave from her job at RBC. Dr. Stewart
found very little change in the situation and her opinion about Ms. Litts
ongoing pain and limitations remained the same.
[212] Her
additional recommendations at that point were first that Ms. Litt be
provided with a personal trainer, to establish an active exercise program. This
was to address the very serious effects that her past weight gain had on her
emotional wellbeing, and to improve her general health. She also recommended
that Ms. Litt continue with massage therapy, which was able to relieve her
pain for several days after each session. In Dr. Stewarts view, Ms. Litt
should have a live-in nanny when she returned to work and paid housekeeping
help if her husband was no longer able to assist with it.
[213] In
addition to identifying the effects of the August 2010 accident, the 2014
report brought the effects of the two accidents together into an overall
opinion.
[214] Dr. Stewart
believed that by the summer of 2010 Ms. Litt had benefited from an
exercise program and had some overall improvement in her physical and emotional
symptoms. Nevertheless in her view Ms. Litts success at work was not
sustainable and the 2003 injuries in themselves would likely have restricted
her to part-time work in the longer term.
[215] In light
of Ms. Litts account of the 2010 accident and Dr. Lees findings
when he examined her the day after, Dr. Stewart thought it likely that she
had suffered soft tissue injuries to her neck, back and right knee in that
second accident. There were also some PTSD symptoms, in the form of nightmares
and anxiety about driving.
[216] Her
conclusion, given the four years that had elapsed since the second accident,
was that Ms. Litt would likely experience the present effects and
limitations of the two accidents much as at present in the future.
[217] On the
work front, Dr. Stewart asserted that Ms. Litts successful banking
career had been destroyed by her injuries from the two accidents, in
particular from the 2010 accident. At best she could now do a job involving a
sedentary to light level of activity, for a maximum of 18 hours per week,
with days off between each work day. Even on that basis, she regarded Ms. Litts
prognosis for a return to the workforce and long-term competitive employment as
guarded.
[218] The
significant recommendations for the future were that Ms. Litt be involved
in a gym exercise program three times per week and that she be followed by a
psychiatrist and have ongoing access to psychological counselling because of
her injuries and the psychological/emotional difficulties arising from the two
accidents.
[219] In
cross-examination Dr. Stewart confirmed that her findings when physically
examining Ms. Litt of muscle tension and tenderness in the shoulder
muscles were subjective ones. In re-examination she clarified that findings of
tenderness can, in a sense, verify what the patient is saying.
[220] She was
not surprised that the general findings from Ms. Litts physical
examination, such as the range of motion in her neck and back — were mostly
normal. That is typical of individuals who suffer soft tissue injuries.
[221] She agreed
that in her 2010 report she had given the opinion that the demands of a young
family would likely restrict Ms. Litt to part-time work, whereas by the
time of the 2010 accident Ms. Litt had actually gone back to work full-time.
[222] She expanded
on her view that Ms. Litts efforts to work full-time were unstainable
after her injuries from the first accident — despite her career success she
was not doing all that well in her overall life. She was pouring all of her
energies into her career. Dr. Stewarts view is that Ms. Litt
approaches things such as her work and eating in an excessive way.
[223] Finally, Dr. Stewart
accepted Ms. Litts explanation that her fall from a small ladder in 2010
had not aggravated her accident symptoms, despite Dr. Lees diagnosis
shortly afterwards of a cervical and lumbar strain from that fall. The fact
that there is only one entry in his records about the effects of this fall
suggests to her that the injury was not very significant and in her view this
supported Ms. Litts account of those symptoms settling down within a few
days.
d) Dr. Paul
Bishop – Expert in Spine Pain (Defendant)
[224] He
provided reports in 2009 and 2012, a rebuttal report addressing the opinions of
Dr. Stewart, and a letter clarifying some portions of the 2009 and 2012
reports.
[225] In
addition to being a medical doctor, Dr. Bishop has trained and practiced
as a chiropractor, and has obtained a masters degree in the mediation of
inflammation response and a Ph.D. in pathology, investigating the causes of disc
degeneration. He is a clinical professor of orthopedics at UBC and a staff
physician in the spine program at Vancouver General Hospital, where he sees
60-70 spine patients week. He has an extensive research background in spine
care, and is also extensively involved in publishing, presenting and reviewing
articles in this field. Because there is no sub-speciality relating to the
spine he is classified as a general practitioner. He was qualified as an expert
in the diagnosis and treatment of non-surgical acute and chronic spine pain.
[226] To get the
full benefit of Dr. Bishops opinion it is important to keep in mind the
hierarchy of available evidence that he relies on when attributing weight to
various sources of information. This hierarchy ranges from Level 1 evidence
(based on the current gold-standard of care and the best available research)
down to Level 5 (a simple assertion of expert opinion that is not based on
any research or objective findings).
[227] In his
2009 report, he diagnosed Ms. Litt as suffering from mechanical neck and
mid-back pain and left knee pain. According to his examination, her shoulders
were normal. A diagnosis of mechanical pain means that the patient complains of
pain and certain activities make it worse, but there is no tissue-specific
diagnosis.
[228] Dr. Bishop
would have expected her to experience the symptoms that she describes for 12-16
weeks after the 2003 accident, but of course her recovery has been prolonged
significantly beyond that. He said that the relationship between the onset of
the knee pain and the accident was unclear, by which he meant that Ms. Litt
had connected it to the accident but it was not referred to in her medical
records until sometime afterwards.
[229] He was
unable to attribute her ongoing spinal pain directly to this accident but said
that the role, if any that any underlying psychiatric disturbance may be
playing in perpetuating this patients symptoms would be best determined by her
attending psychiatrist(s). In his view, her self-report of disability far
exceeds any objective evidence of impairment. In this regard, he noted that
previous diagnoses of major depressive disorder or PTSD represent significant
yellow flag psychosocial risk factors for the development of chronic pain. By
this he meant that studies of patients who do not get better after the normal
duration of a soft tissue injury tend to have factors like this in common.
[230] In the
course of clarifying his report in direct examination he explained that of the
five tests that he administered to confirm the source of her pain, Ms. Litt
complained of pain from performing actions that could not have produced it in
two of the tests. He emphasized that this was not an indication of malingering
and the explanation could be as simple as the patient being frightened or
having difficulty with the pain.
[231] He saw no
contraindication to her returning to her pre-accident activities. While she
would experience more intense pain symptoms, he emphasized that this is part of
the normal recovery process and does not represent re-injury. If she accepted
this advice her prognosis for a full recovery was good.
[232] In his
2012 report, Dr. Bishop came to almost exactly the same conclusion with
respect to the diagnosis, expected duration of symptoms and prognosis for
recovery with respect to the injuries that Ms. Litt received in her 2010
accident, except that he now also diagnosed mechanical lower back pain and
right knee pain.
[233]
He expanded on the comments about appropriate treatment that he had made
previously:
As far as further treatment of
any symptoms that may be originating from elements within her spine are
concerned, there is strong clinical scientific evidence that patients in this
clinical setting who receive extended courses of non-evidence-based treatment
(e.g. any forms of treatment administered by a physiotherapist, spinal
manipulative therapy administered by a chiropractor, massage therapy or the
prolonged use of any analgesic, anti-inflammatory or muscle relaxant
medications) experience poor clinical outcomes. In addition, in my experience,
patients who participate in these forms of treatment commonly develop therapist
dependence, illness behaviour, a false belief system regarding the true nature
of their symptoms and a false sense of fragility, all of which greatly prolong
patient recovery. Furthermore, I know of no reliable clinical or basic science
research studies which have demonstrated that supervised exercise-based
treatment programs have any proven vale in this clinical setting, when compared
to a return to normal activities.
[234] Dr. Bishops
rebuttal report focused mainly on Dr. Stewarts 2014 report. His approach
was to summarize the key points of her report and add his own italicized
comments. Almost all of these comments are re-statements of the main points of
his previous reports.
[235] The
cross-examination of Dr. Bishop focused on testing his fundamental
assertion that Ms. Litts soft tissue injuries would certainly have healed
within 12-16 weeks of each accident. He pointed out repeatedly that this did
not mean that a patient would not experience pain outside of such a time
period, only that soft tissue injuries would not be the cause of it, and there
should be focus instead on the psychiatric dimension of the pain.
[236] He called
the assertion of recovery within 12-16 weeks a scientific fact, supported by
Level 1 evidence within the evidentiary hierarchy. In accounting for symptoms
that persist beyond that period, he said that one needs to distinguish between
soft tissue pain and soft tissue injury-related pain, with the latter, I infer,
accounting for cases like Ms. Litts.
[237] What
happens, he explained, is that psychiatric problems begin right at the time of
the accident, with the patient having an emotional reaction to the accident and
their soft tissue injury. As their clinical course plays out the injury heals,
but they continue to have an emotional response to pain.
[238] He
rejected the suggestions that various additional facts about Ms. Litts
life and pre-accident functioning that were not reflected in his report have
any significance. He emphasized that he was focused entirely on issues relating
to her spine and so would only have concerned himself with facts that can lead
to spine difficulties or chronic pain. For example, he was interested in the
anorexia nervosa because it is a psychosocial risk factor for chronic pain, but
aspects of her home life after the accidents were not relevant.
[239] Dr. Bishop
also did not accept that his opinion should take into account the examination
findings in Dr. Lees records. For example, while the location of pain is
important, the swelling described by Dr. Lee on certain visits is a very
subjective, non-specific finding, as are the references to an impingement of
her shoulder and to nodules and tightness. Palpable tenderness and swelling
have been determined to have no diagnostic validity, he said. Swelling that
appeared or increased later in the acute phase of her injury might have been
significant he said, but in those situations it would have been caused by
something other than the accident.
[240] If there
were no new complaints it was not necessary for him to refer to the results of
each of Ms. Litts visits with her doctor over time, although he did put
in references to the symptoms remaining the same at certain points to provide
some continuity to the report. Her symptoms may well have ebbed and flowed
but they still paint a picture of a patient having chronic pain. What matters
is that there were no new symptoms and no resolution of her spine-related ones.
He felt that there was no significant change in her symptoms until the point
where her mental health issues started to really boil over.
[241] In keeping
with the comments in his report about effectiveness of commonly-recommended
treatments, he found Dr. Lees referrals of her to physiotherapy and
massage highly inappropriate.
[242] Ms. Litts
counsel also cross-examined Dr. Bishop on the examples of Level 1 research
that he provided to support his assertion of the invariable healing period of
soft tissue injuries. He agreed that all of the examples he had provided dealt
with low-back pain, that he was himself the author or lead author of two of the
papers, and that a co-author of one of them had had his research on a related
topic thoroughly discounted. In relation to the article of which he was the
sole author, Dr. Bishop agreed that he was relying on his own opinion,
although he disagreed that it was therefore the kind of Level 5 evidence that
he disparages.
[243]
Perhaps most significantly in this regard, Dr. Bishop accepted as
authoritative a systematic review of all of the relevant research literature
that was conducted in 2008 by an expert panel when it was put to him by Ms. Litts
counsel. That review used the term Whiplash Associated Disorder (WAD) to
refer to the kind of soft tissue injuries that are at issue in this case. When
the following passage from it was put to him: Most studies examining recovery
from WAD in adult populations suggest a prolonged recovery, his response was
Im surprised they used the word most, but yeah, there are a lot of studies
that show not everyone gets better.
[244] However in
response to another trial decision in which the judge had described him as
rigid for his insistence on the 12-16 week recovery period, he pointed out
that in that case he had not been permitted to qualify his evidence by
reference to the possibility of continuing pain from sources other than soft
tissue injury.
[245] In his
view, Ms. Litt needs to see a psychiatrist to help her understand the role
of her underlying psychiatric disturbances in perpetuating her pain. He
contends that he has advanced her case by recommending that she not bother with
physical rehabilitation that is bound to fail and concentrate instead on her
psychiatric co-morbidities.
[246] Dr. Bishop
agreed that no new clinical records had been provided to him since his 2009
report in relation to the 2003 accident. He would have liked Dr. Lee and Dr. Weisss
more recent records and said that any diagnostic imaging from shortly after the
accident might have been important to his opinion.
[247] Finally he
agreed that soft tissue pain could be [a] contributing factor to Ms. Litts
disability. He had earlier stressed that for his purposes disability is the
patients subjective report of what they are unable to do, while impairment
refers to the objective finding of the actual effects of an injury.
2. Psychological
Injuries
a) Dr. Shaohua
Lu – Psychiatrist (Plaintiff)
[248] He
provided three reports — in 2006, 2009 and 2012.
[249] In Dr. Lus
opinion, Ms. Litt was in stable recovery from her anorexia nervosa at
the time of the 2003 accident and there was no indication that she was at any
risk of a relapse.
[250] However,
her weight gain after the accident raised concerns with respect to this
condition. Such a substantial gain, secondary to inactivity or pain, threatens
the sufferers weight control and body image, which are at the heart of
anorexia nervosa. While Ms. Litt had not relapsed, and Dr. Lu
actually saw it as a good sign that she remained overweight, she had
troublesome signs of the condition, such as increased preoccupation and
rumination over weight, disgust with her body, and irrational thoughts.
[251] In this
regard, the marital difficulties connected with her husbands use of
pornography raised concerns, in particular because distorted body images are
aspects of both anorexia nervosa and pornography. He expected that her marital
difficulties would continue to play a significant role in her symptoms.
[252] Dr. Lu
also identified depressive symptoms in Ms. Litt, although they did not
warrant a diagnosis of major depression in themselves.
[253] Overall,
he identified her as being at high risk for full relapse of anorexia nervosa.
She required urgent psychological intervention with a specific focus on eating
disorders, such as the clinic at St. Pauls Hospital. And, since Dr. Lu
felt that her symptoms were unlikely to improve without a resolution of the
marital problems, he suggested a resource such as the UBC Sexual Disorders
Clinic. He did not recommend psychiatric medication because of the association
of most such medications with weight gain. He did however recommend sleep
medication, given the benefit of sufficient sleep to her daytime levels of
wakefulness and pain tolerance.
[254] Dr. Lu
stressed that Ms. Litt was at a crossroad with respect to her
psychological condition and that active intervention of the kind that he
described was likely to lead to substantial improvement.
[255] While Ms. Litt
reported chronic pain, Dr. Lu noted that it was localized and that it was
not substantially disabling in and of itself. He used the term mild in
relation to this pain, which he clarified in cross-examination meant that she
was not on significant pain medication and was not making substantial changes
in the activities of daily living. It did not mean that her pain was trivial.
[256] If her
physical condition improved and she resolved her psychological problems, he
felt that she would be able to tolerate residual pain. Its main impact was to
limit her exercise and activities, which in turn played a role in the
re-emergence of the psychiatric symptoms associated with anorexia.
[257] When Dr. Lu
saw Ms. Litt for his 2009 report she was on maternity leave and Jonah was
six months old. This report was positive in many respects. He felt she was
doing well from a psychological point of view, including with respect to any
eating disorder, and there was improvement in her relationship with her husband
and in her overall mood and outlook.
[258] Ms. Litts
pregnancy-related weight gain was a concern however, given that her eating
disorder is chronic and that pain inhibits her level of physical activity. Dr. Lu
said that she would greatly benefit from a personal trainer and a structured
exercise program. Further psychological counselling was also recommended, to
consolidate her current improvement.
[259] If that
improvement could be kept up for the long term Dr. Lu thought that Ms. Litt
might be able to maintain long-term stable employment despite chronic pain.
[260] The
outlook was much darker in his 2012 report, which was of course after Ms. Litts
second accident. In his opinion she now met the criteria for Pain Disorder
Associated with a General Medical Condition and Psychological Factors in the
DSM-IVTR, which was then the current edition of the authoritative diagnostic
manual of psychiatric disorders. This has now been re-named Somatic Symptom
Disorder in the subsequent DSM-V, but the new name and slightly modified
criteria do not affect the substance of his opinion. For the sake of
consistency with terminology in the majority of the reports, I will continue to
use the previous term.
[261] In
essence, this psychiatric condition involves the subjective experience of pain
as the main clinical focus, while psychological factors play a significant
role in the perpetuation, maintenance and exacerbation of pain and pain related
distress. Put more simply, her chronic physical pain has taken on a
psychological dimension.
[262] The way
this works in practice is that the emotional component of her pain is activated
by the losses that she has suffered due to her physical pain, such as in her
employment, and the emotional component then increases her subjective distress.
A minority of chronic pain sufferers develop this disorder over time, due to
the increased psychological symptoms. More than a purely psychological
condition, pain disorder can, according to research, change the brain so that
there is alteration in pain perception and a heightened response to non-pain
stimuli. Significantly, the effectiveness of pain medication can be diminished
by the process.
[263] Dr. Lu
noted the impact of chronic pain on a myriad of other aspects of Ms. Litts
functioning, including her sleep, appetite, energy, cognition and overall sense
of wellbeing.
[264] A
particular concern was her 100 lb weight gain since his 2009 examination. In
addition to being a detriment to her psychological function, such a massive
increase would have an impact on her pain and her overall physical health.
While weight loss was essential, proper management of any such loss to prevent
a reactivation of the anorexia symptoms was equally important. To that end Dr. Lu
stressed the need for an active and individualized weight loss problem, also
involving a dietitian and Ms. Litts psychologist[1].
[265] In sum, Dr. Lu
viewed Ms. Litts prognosis as highly guarded. Although she had returned
to work she was not functioning well and her ability to balance work and
family demands remain[ed] poor. In cross-examination he clarified that she
could manage family and work to a degree, but when the two are combined, she
has some challenges.
[266] He found
it highly unlikely that Ms. Litt could be pain free in the foreseeable
[sic – perhaps forthcoming?] two years. In his view, as long as she has
physical pain, she will have aspects of pain disorder. As a result, he said
that: Her current capabilities represent the maximum functional capacity
anticipated[,] given the multitude of symptoms she experiences.
[267] Cross-examination
revealed that Dr. Lu had not been provided with any of the records of Ms. Litts
family doctors, for the time before the first accident in 2003, in particular
those during the time of her anorexia nervosa when he prepared his 2006 report.
He agreed that such information would be helpful in coming to an opinion. He
also confirmed that Ms. Litt had not informed him of her 2004 suicide
attempt, which he described in his review of the medical records as a minor
overdose.
[268] When it
was put to him that despite knowing that healthy eating and exercise were the
proper approaches to future success, she had nonetheless pursued the unwise
strategies of hormone injections and reduced calorie intake, he said, Thats
the heart of anorexia. They make wrong choices. He explained further on
re-examination that where physical pain and psychological factors intertwine,
the ability to make good decisions is impaired.
b) Dr. Stephen
Wiseman – Psychiatrist (Defendant)
[269] He
provided a report in April of 2008, following an interview with Ms. Litt
the previous month. He re-cast this report in a format that segregated the
opinion from its underlying factual assumptions more clearly and added the
revised diagnostic term for the state of Ms. Litts anorexia from the
subsequent version of the DSM (the DSM-V) but he did not have any new
information available to him since the 2008 report. He was therefore only able
to address the first accident and Dr. Lus 2006 report, which, as I have
summarized, dealt mainly with the relationship between the accident and Ms. Litts
anorexia nervosa.
[270]
As an overview, Dr. Wisemans opinion was that anorexia nervosa
must be understood as being more than just a patient restricting their intake
of calories and it just does not emerge out of the blue:
[C]linically a number of complex
emotional issues are often involved including perceived high degrees of
pressure at home, family role issues, perfectionism, a marked need to obtain or
retain control over circumstances or feelings, core self-esteem and body-image
issues, and possible ambivalence over development or sexuality. A cognitive
component to , which includes monitoring and scrutiny of weight, appearance,
exercise efforts and dietary choices, is also typically present in such
individuals, even when superficially they may have stopped the restricting
behaviours and returned to a normal weight.
[271] He was not
as comfortable as Dr. Lu in asserting that Ms. Litt had made a full
recovery from this illness. In his view Ms. Litt was not out of the
woods with respect to her eating disorder, in that she did not seem to have a
good understanding of its underpinnings and still engaged in close monitoring
of her weight and weight control behaviours. While she was no longer formally
diagnosable as having the disorder, the emotional and cognitive aspects of it
were still in play and she could have been diagnosed as being in partial
remission as defined in the DSM-V. There was a risk of the condition returning
in the face of life stresses of various kinds.
[272] He dismissed
the existence of any PTSD arising from the 2003 accident and noted that her
post-accident driving anxiety had receded spontaneously.
[273] Addressing
the relationship between the accident and Ms. Litts subsequent
psychological condition, Dr. Wiseman pointed out her demanding life
circumstances, including being a newlywed, living with traditional in-laws,
caring for an injured mother-in-law and starting her program at Langara. To
this would have been added her residual vulnerability from her eating disorder.
He found it significant that Dr. Lee did not note any emotional problems
or focus on weight gain until about five months after the accident, by which
time she had apparently been losing weight appropriately through exercise. Dr. Lees
notes from then on focus on difficulties with her family situation, culminating
in the discovery that her husband was looking at pornography and her unwise
decision to resort to fat burners.
[274] He agreed
with Dr. Lu that by the fall of 2005 she developed a depressive reaction.
[275] While he
believed that the accident and her associated weight gain had aggravated her
vulnerabilities from the eating disorder and her self-esteem issues, the
factors that she was facing in her life in the fall of 2003 would likely have
aggravated these difficulties to an extent even if there had been no
accident.
[276] He
attached some significance to the difficulties caused by Ms. Litts
discovery that her husband was viewing pornography, which she did not reveal
during her interview with him for the report. In particular, her becoming
distraught and resorting to fat burners to lose weight, despite her previous
progress, was for him an indication of her serious underlying issues of
self-esteem and distorted thinking in connection with eating, appearance and
weight control. While acknowledging that it is somewhat speculative he found
it likely that she would have experienced a re-activation of these issues from
the pornography discovery even without the 2003 accident and her subsequent
weight gain.
[277] While at
the time of their interview Dr. Wiseman did not find that Ms. Litt
was occupationally limited in any way by psychiatric symptoms, and that her
mental status was entirely normal, she was still quite preoccupied with
weight, appearance, self-esteem and eating issues. He believed that these
matters reflected long-standing distortions which were not adequately dealt
with from adolescence. To address them he recommended cognitive behavioural
psychotherapy from a psychologist experienced in dealing with eating disorders.
[278] In
cross-examination he agreed that if Ms. Litts family dynamics were
actually more supportive than he had understood following her 2003 accident, it
would partially change his opinion, but he emphasized that she was still facing
a number of significant stressors in her life. He noted that in his interview
with her for his report she still referred to criticisms of her by her
husbands family however.
[279] He also
agreed that if her husbands pornography use was solely attributable to her
inability to participate in sex with him because of her accident injuries, that
would modify his view of its significance somewhat. He also conceded that if
she had done meaningful work on her psychological condition after the time he
saw her it may have been helpful to her situation, but that the symptoms of her
fundamental illness would not go away without professional help.
[280] Finally, Dr. Wiseman
said that his ability to express opinions was limited by the fact that he had
not been provided with Ms. Litts medical records from her eating disorder
in adolescence.
c) Dr. Alexander
Levin – Psychiatrist (Defendant)
[281] His report
in June 2014 was based on an interview with Ms. Litt in April of that
year, as well as a review of her medical files.
[282] In
relation to the 2003 accident, he was unable to identify any emotional or
psychological trauma associated with it that would either result in PTSD or
trigger a recurrence of the anorexia nervosa and depression that she
experienced in her teenage years. There was an absence of any temporal or
causal correlation between that accident and the symptoms of anxiety and
depression that she reports.
[283] His view
is that her current condition should be viewed in the context of these
pre-existing conditions. He believes that even if she had no active symptoms of
anorexia nervosa, she would still have had the underlying low self-esteem and
struggle for control in her day-to-day environment that are often seen in such
patients. Given what she was facing in her life at the time (full-time studies,
part-time makeup work, household duties and caring for her disabled
mother-in-law) the resulting lack of control would have caused her eventually
to develop psychological/emotional disturbances in the context of the
pre-existing conditions.
[284] Dr. Levin
says that Ms. Litt seemed to assume a sick role in her family
environment after the first accident, which enabled her to obtain support that
was not previously available. In other words, her subjectively reported
complaints of pain played a role in her obtaining significant control over her
life and family environment.
[285] He noted
her ability to complete her education and obtain a job despite the first
accident, and the absence of evidence of a clinically significant psychiatric
condition in the years following it. He found it significant that her
complaints of depression to Dr. Lee in 2004 were not said to arise from
the effects of that accident. Rather, her doctor recorded family-related
stressors, including around the time of her suicide attempt. Her mood
fluctuations correlated with family distress rather than pain.
[286] The sexual
dysfunction in her relationship with her husband also pre-dated the first
accident and was in his view also a consequence of the anorexia and related low
self-esteem, of which it is a frequent symptom.
[287] Similarly
the circumstances of the second accident and Ms. Litts reaction to it did
not suggest any features that could account for the development of PTSD,
accident-related anxiety, or the pain disorder that Dr. Lu eventually
diagnosed and Dr. Gouws agreed with.
[288] During
direct examination to clarify aspects of his report, Dr. Levin explained
that in order to diagnose pain disorder, the DSM-V requires that the patient
perceive the injuries as significant, life-threatening or catastrophic. He gave
the example, erroneous on the facts as narrated by Ms. Litt and her
husband, that after the 2003 accident her priority was going to school to
present her paper, rather than going to Emergency to receive treatment. He also
noted that her reaction to the 2010 accident was normal despite her
pre-existing psychiatric difficulties and that she did not have flashbacks to
the previous accident, as might occur in the case of PTSD.
[289] Dr. Levin
did not find it clinically responsible to suggest that she could have a
chronic pain condition related only to the second accident and that her fall
from the small ladder in June 2010 would have had no effect on the development
of the conditions and changes in her brain circuitry that Dr. Lu speaks
of. In his view, a pain disorder is pervasive and will arise in every
circumstance involving injury.
[290] He warned
as well that the absence of a medical explanation for pain is not a reason to
diagnose a pain disorder.
[291] In
addition, he found her ability to deal with her reported chronic pain in the
years before her pregnancy and to cope with the demands of her various
vacations, considering the flights involved in taking them, to be inconsistent
with such a diagnosis. Based on his interview with her, her exaggerated pain
behaviour was grossly inconsistent with her employment performance and her
ability to travel, and there were no signs of ongoing clinically significant
depression.
[292] He
summarized his opinion on pain disorder this way: Ms. Litts seemingly
unimpaired academic occupational and recreational function in the years
following the subject MVAs virtually rules out the diagnosis of pain disorder
as a psychiatric condition.
[293] The
cross-examination of Dr. Levin focused on drawing out overstatements in
his opinion, or aspects of it that were arguably based on his mistaken
understanding of the underlying facts or his failure to consider relevant
entries in the medical records. These included:
·
He assumed, without direct confirmation from Ms. Litt or any
suggestion of it in her records, that sexual dysfunction in her relationship
with her husband had significantly pre-dated the 2003 accident. He drew that
inference from the presence of her diagnosis interstitial cystitis and the
types of sexual dysfunction that he said often accompany anorexia nervosa.
·
He assumed that Ms. Litt had seemingly unimpaired academic,
vocational and recreational function after both accidents.
·
His descriptions of exaggerated pain behaviour by Ms. Litt
during their interview were based on two incidents (and probably it was a few
more times, but I did not document it) when she was stretching, although he
said that it was the quality of her behaviour that probably resulted in him
making the statement about exaggeration.
·
He probably missed the entry in Dr. Lees records from May
of 2004 diagnosing Ms. Litt with depression. He was also unable to read
the entry fear of driving on the same date and so did not refer to it. The
fact that Ms. Litt was on anti-depressant medication from 2010 onwards did
not affect his opinion about her psychiatric condition. In his view, she had a
pre-existing history of depression and probably should have been on a life-long
course of such medication to prevent the worsening of her symptoms. Although he
agreed that it is important to know what medication she is taking, he did not
include it in his report.
·
He did not refer to an entry of Dr. Lees records from
November 2005 describing a worsening of her pain because it did not appear to
be related to her psychiatric condition. He also did not refer to an entry in
January 2006 that referred to Ms. Litts trust issues [and feeling]
anger, frustration, sexual tension, decreased libido, which he agreed appear
to be potential psychiatric symptoms.
·
He did not refer to Dr. Lees description of Ms. Litts
mood being off and on and his purported diagnosis of PTSD in June 2011. His
view is that this was an over-diagnosis in light of the actual circumstances of
the accidents. He agreed that these sorts of comments are relevant to a
psychiatric opinion though, and that they got missed by him in this case.
·
His opinion that Dr. Lees discussions with Ms. Litt
about the need to have more fun in her life did not reflect the existence of
any psychiatric conditions that would change if it turned out that Dr. Lee
had actually made the suggestion that she have more fun, rather than Ms. Litt
complaining to him about it.
·
He assumed that her inability to work in April 2012 was not
related to pain or psychiatric issues because in Dr. Lees notes she was
discussing interpersonal issues. However he made no reference to subsequent
entries in June in which her inability to work was noted to be related to pain.
He also did not include an entry later that month that said stress,
depression, seeing Dr. Mok and not slept one week. He said it was not
possible to determine what her stress was in relation to. He also disagreed
with the part of this entry in which Dr. Lee related the identification of
depressive symptoms on that date with the 2010 accident.
·
Similarly, he did not refer to an entry in July in which Ms. Litts
inability to return to work was related to neck and back pain, depression was
diagnosed and anti-depressant and sleep medication were prescribed by Dr. Lee.
·
He agreed that an entry the following February in which Ms. Litt
complained of anxiety and was screened for depression was fairly important
information for a psychiatric opinion, yet it had been omitted from his
report. The same was true of an entry in March that stated depression getting
worse. He explained that the additional notes in that entry about her returning
to work and doing makeup meant that the depression could not have been that
severe.
·
He included an entry in April about her being able to do makeup
rather than one from the preceding day about her inability to work. He felt
that the subsequent entry dealing with makeup spoke to the severity of her
symptoms.
·
He did not delve much into the complicated issue of Ms. Litts
difficulties with her workplace, and said it was difficult to delineate the
pain issues and the administrative issues in a precise way.
·
In his last fiscal year he earned about $859,000 from ICBC, for
120-130 reports, out of an income of $1.5 million for his personal corporation.
He earned about $150,000 doing work for plaintiffs and other insurance
companies. He said that it would make no lifestyle difference if he did not
have the ICBC work.
d) Dr. Rajinder
Bhatti – Family Physician (Defendant)
[294] He is Ms. Litts
former family doctor. He treated her in her teenage years, including during the
time that she suffered from anorexia. He was called by the defendants only to
prove her relevant medical records from that period, as she was unable to
recall the circumstances that were suggested by some of the entries in them
when she was cross-examined. I infer that the key aspect of these records was
to widen the scope of her condition in her teenage years to include a diagnosis
of depression.
[295] Of
particular importance he was called to prove that in 1998, he prescribed her
the anti-depressant commonly known as Prozac. The physicians diagnostic code
for the visit on which he gave her this prescription was for depression. He
said that she was feeling depressed and having eating disorder problems.
Notations in his 1999 records refer to a visit in which she expressed
reluctance to take this medication, after which he re-prescribed it to her. She
made the same complaint in 2000. In October 2000 she also made reference to
having problems with her eating disorder and missing some classes.
[296] On
cross-examination Ms. Litts counsel confirmed with Dr. Bhatti that
the last time he prescribed Prozac to Ms. Litt was in 1999 and the last
depression or eating-disorder related entry in his records was in 2000. He
assumed that after the October 2000 visits that her eating disorder was in
remission and that she was no longer depressed.
3. Effect
of Injuries on Employment and General Functioning
a) Dr. Daniel
Gouws – Occupational Medicine (Plaintiff)
[297] He
provided his report in December 2012, following an assessment of Ms. Litt
in September of that year.
[298] Occupational
medicine deals will medical conditions related to the workplace. It is a
recognized sub-speciality in Canada, but he said that designation in it is not
that frequently sought, and his expertise is based on extensive experience
practising in the field. No issue was taken with his qualifications.
[299] Dr. Gouwss
report, which was based on his review of Ms. Litts medical records and
his interview with and examination of her, dealt with the causation of her
injuries, her degree of impairment as a result of them and their effect on her
competitive employment, and recommendations for future support and care.
[300] He
proceeded on the basis that Ms. Litts most serious physical complaint was
pain to her mid-back; with less serious pain to her left shoulder, lower right
side of neck, lower back and left knee. Another of these less serious concerns
was the resulting headaches that she suffered.
[301] On the
psychological end of things, the review of her medical records and his testing
indicated significant depressive symptoms, as well as anxiety, sleep
disturbance and a feeling of exhaustion.
[302] With
respect to causation, he assumed that she had no restrictions in her activities
before the 2003 accident and that she had made a reasonable recovery from the
injuries that she had received from it by the time of the 2010 accident. Her
pre-existing anorexia nervosa and bladder problem placed her at a higher risk
of developing a chronic pain condition, in his view. Based on those
assumptions, his opinion was that her chronic pain condition, general
deconditioning and weight gain, emotional comorbidities and functional
limitations would not have occurred with the 2010 accident and that the 2003
accident placed her at a greater risk for developing them.
[303]
As to the impairment of her physical, cognitive and emotional abilities
related to employment, Dr. Gouws came to the following conclusions:
Ms. Litt experiences chronic
widespread pain in multiple anatomic sites which caused significant distress
and impairment and which is exacerbated and perpetuated by psychological
factors including depression and anxiety. Her pain persisted beyond the normal
tissue healing time and her level of disability exceeds that expected by
objective findings. It is my experience that she meets the diagnostic criteria
for pain disorder with psychological features.
[304] These were
in addition to the other limitations that he had said would not have occurred
without the 2010 accident.
[305] In
reaching the conclusion about pain disorder, he ruled out other differential
diagnoses for unexplained ongoing pain, such a hypochondria or factitious
disorder (deliberately exaggerating or feigning symptoms).
[306] Despite Ms. Litts
very high work ethic, which he said was demonstrated by her efforts to return to
work despite being demoted, Dr. Gouwss opinion was that it is unlikely
that she will be able to perform full-time work for the remainder of her
career, which due to her age he felt would be more than 30 years. She would be
better able to remain in the workforce if she were to work on a part-time
basis, to allow her a reasonable degree of symptom control and quality of
life.
[307] He
recommended that she attend a multi-disciplinary pain program. Such a program
could be expected to result in about a 33% improvement in her condition
overall, including decreasing her perception of pain, improving her mood and
increasing her functional capacity by one-half. A cure could not be expected
however, and the prognosis for a resolution of her symptoms remained guarded.
[308] Dr. Gouws
also recommended that Ms. Litt have access to psychological counselling
after completing the pain program, follow-up with a psychiatrist to monitor her
medication, and continue with an active rehabilitation and weight-loss program.
Finally, in view of her limited tolerance for physical activity he
recommended that she be provided with additional housekeeping assistance, to
allow her to reserve as much energy as possible for working and spending time
with her family.
[309] In
cross-examination he confirmed that his testing revealed that Ms. Litt
suffers from moderate to high kinesiophobia (fear of pain) and that she
perceives herself as being highly disabled by pain. He explained that there is
no inconsistency between this perception of the effect of her pain and her
ratings of some of her areas of pain as only 3 out of 10 on the pain scale. The
perception rating measures how pain affects her overall functioning, while the
pain scales deal with the level of actual pain from each injury
[310] His
testing demonstrated no functional limitations to Ms. Litts shoulders,
arms and, in terms of gross functional limitation, her back. She was able to
carry out some relatively demanding exercises during the testing, although he
noted that one of them — the duck walk — was not actually particularly
demanding of the structures of the back.
[311] He
emphasized that he was not saying that Ms. Litt could not do a job that
involved sitting, just that she cannot sit on a sustained basis without
experiencing pain. He agreed that her self-perception of her pain is limiting
her ability.
[312] Despite
ongoing recommendations from various experts that she pursue a fitness program,
he was not prepared to blame Ms. Litt for her delays in pursuing a
weight-loss strategy, given the number of other issues that she was dealing
with.
b) Derek
Nordin – Vocational Assessment (Plaintiff)
[313] He
provided his report in July of 2014.
[314] Because of
Ms. Litts completion of a post-secondary degree with relatively good
marks and the absence of any head injury from either accident, Mr. Nordin
did not find it necessary to test her basic skills or intellectual functioning.
His significant vocational test finding was that on the Beck Depression
Inventory she scored in the severe range of depressive feelings. He emphasized
however that he was not purporting to make a diagnosis of depression and that
the score was completely dependent on her self-reporting.
[315] He noted
that she was somewhat of a poor historian, who seemed to have difficulty
putting her employment history into chronological order.
[316] At the
time he was preparing his report, Ms. Litt told him that she was unable to
return to work at RBC without a letter from a doctor indicating that she can
maintain a consistent work schedule. She believed however that she had
exhausted her goodwill there and that it would not be a positive environment
for her to return to. He agreed that all of his information about RBCs
position on this issue came from Ms. Litt.
[317] In Mr. Nordins
view the preferred approach from a vocational perspective would be to have her
go back to RBC, the employer that is already familiar with her. If that is not
possible, she will be required to seek a new position, and will be faced with
informing prospective employers of the reason for her departure. She may also
not be able to obtain a recommendation from RBC, which may further reduce her
chances, although he agreed that his concern in this regard was based entirely
on Ms. Litts information to him about having exhausted her goodwill with
them.
[318] More
fundamentally, he saw no reason to believe that she would be in any better
position with a new employer. Her RBC positions are among the most sedentary
available and her inability to maintain her position as an account manager
meant that she was unsuitable for any type of management position. Her best
option would be an entry-level position at another bank on a part-time basis.
[319] Overall,
he concluded that her symptoms precluded her from working in a senior banking
position or on a full-time basis. Both restrictions will affect her future
earning capacity.
c) Robert
Gander – Occupational Therapist (Defendant)
[320] Mr. Gander
performed a functional capacity evaluation of Ms. Litt in December of 2013
and produced a report in June of the following year. Ms. Litts counsel
did not require him to attend the trial for cross-examination.
[321] He put Ms. Litt
through a variety of physical tests intended to simulate the requirements of
employment at various levels of activity.
[322] In essence
he found, with a few exceptions, that she was able to meet the physical
requirements of both her current and former positions (teller and senior
account manager) with RBC and usual household activities. He felt that she may
benefit from a sit/stand workstation and a wireless headset to address the
requirements for prolonged sitting in her account manager position, which she
would have difficulty meeting otherwise. Her current position as teller was
somewhat more suitable because of its emphasis on standing.
[323] Her
difficulties included activities involving reaching overhead with both arms,
moving her arms constantly well away from her body, high-level balancing,
repetitively bending deeply, and performing low level activities. He thought
that the bending and low level issues could be dealt with at work by elevated
work surfaces and in household tasks by modifying her methods, such as by using
long-handled tools. Her slow pace in performing certain household tasks due to
upper back/neck pain could be addressed by pausing briefly and altering her
position.
[324] According
to a pain questionnaire that she completed as part of the assessment, Ms. Litt
reported being almost overwhelmed by depression and rated herself as having no
control over emotion. Mr. Gander noted that she would repeatedly admonish
herself or cry during tasks, and would express frustration with her
self-perceived disability status.
[325] He also
observed that Ms. Litts level of effort in completing the testing was
variable overall. In essence he found that she is physically capable of
exhibiting greater capacity for certain functions than she is at times able
and/or willing to demonstrate during formal testing and that at times she
possesses greater physical capacity than she perceives/reports. For example,
she was able to perform the activity of reaching more quickly in casual
activities than she did during testing, which suggests that factors other than
her physical capacity at times influence her performance characteristics.
[326] Mr. Gander
was careful not to attribute intent to this disparity Ms. Litt
demonstrated and actual activity levels. He said that there are many competing
hypotheses to explain low or variable testing effort, including exaggeration,
fear of pain, and habitual disability behaviour. A chronic pain disorder and
depressive or anxious symptoms can also influence a persons effort
capabilities.
[327]
Significantly, he concluded:
Ms. Litt reports that her
symptoms and associated concerns result in [her] avoiding certain activities,
or moderating her performances during certain activities, out of concern that
should she at all attempt certain physical activities or participate in certain
activities with higher physical effort she would experience unacceptable pain
elevation. However, functional trend analysis dos not reveal any physical factors
that would preclude Ms. Litt from potentially advancing beyond her current
part-time schedule (working greater quantities of hours each week) or
potentially increasing her participation in other functions capacities [sic],
such as her participation in household activities. She may benefit from
participating in physically-based and/or psychologically based treatment
interventions with this aim.
4. Future
Care Needs
a) Tracy
Berry – Occupational Therapist – Cost of Future Care (Plaintiff)
[328] Her report
was provided in October 2012. In addition to reviewing the medical records that
had been provided to her, Ms. Berry conducted an assessment in Ms. Litts
home, which at that time was the one in Richmond that had been provided to them
by Mr. Johals parents.
[329]
Her opinion was that the primary impairments affecting Ms. Litts
ability to do her pre-accident activities were emotional functioning –
multiple psychiatric diagnosis and pain – diagnosed chronic pain disorder
She was experiencing severe psychological stress and her functional limitations
in the activities of daily living were consistent with a combination of her
psychiatric and chronic pain diagnos[es]. Specifically:
Physically she may be capable of
increased participation in activities of daily living, but the combination of
pain, emotional impairments, disturbed sleep and medication use are
significantly impacting her initiati[ve], energy, confidence and enjoyment of
activities.
[330] This
situation was affecting Ms. Litts parenting of her son, and despite
various adaptations to help her to carry it out, she was significantly behind
in her homemaking tasks. Mr. Johal expressed dissatisfaction to Ms. Berry
with the amount of housework and childcare he was required to do as a result,
in addition to his full-time work outside the home.
[331] At the
time of this assessment Ms. Litt was engaged in the ill-advised hormone
and restricted calorie intake program that had been recommended by the
naturopath. Ms. Berry noted her vulnerability to such therapies and emphasized
the importance of evidence-based exercise and diet programs to manage her
weight, pain and emotional impairments.
[332] In her
view, Ms. Litt was not competitively employable at that point and, given
her time out of the workforce at that point the probability of her returning
to work is near nil. The only possible solution would be extensive medical and
rehabilitation support, a supportive employer and physical and scheduling
accommodations in the workplace.
[333] In
overview, her most significant future care recommendations were for:
·
a chronic pain clinic (preferably a private one to reduce the
waiting times in the public health system), a self-management program and,
likely, support to initiate her access to them;
·
continuation of her various current medications;
·
a TENS (low-risk nerve stimulation) device to reduce her pain;
·
gardening implements to reduce strain during that activity, as
well as yard care;
·
a contoured pillow to improve her sleeping position;
·
ongoing sessions with a psychologist;
·
ongoing assistance of an occupational therapist, heavily
front-loaded, to implement Ms. Berrys recommended extensive support for
rehabilitation and return to work;
·
ongoing physiotherapy and massage therapy;
·
a dietary consultant and intervention;
·
ongoing homemaking assistance, best accomplished initially by a
live-in nanny until her son is 11;
·
moving assistance for the number of times that it is
statistically likely to be required;
·
the fitness related supports of a community gym/pool membership,
a pedometer, a recumbent bicycle for indoor use, rehabilitation exercise
equipment to facilitate regular involvement in exercise, and Pilates sessions;
·
assistance of a kinesiologist to set up instruction and exercises
at the gym and pool; and
·
an ergonomic assessment of her work space and an ergonomic work
station.
[334] In
cross-examination, Ms. Berry clarified that although she did not engage in
testing Ms. Litts level of effort as such during her evaluation, as they
are not part of the standard of care in her field, she did look for indications
of consistency within Ms. Litts reports of her pain and between Ms. Litts
reported pain and what she demonstrated during actual functioning. Ms. Berrys
overall opinion is based on her professional observations, including the state
of the home, Ms. Litts self-reporting, and a review of the medical
records. It does not rely solely on any one component.
[335] When faced
with the suggestion that Ms. Litt had not yet implemented her various
rehabilitative recommendations by the time of the trial date, Ms. Berry
would not be able to say why that had occurred without conducting a further
interview. Ideally she would have liked to find out why Ms. Litt did or did
not use some of the recommended items. In her experience clients may sometimes
be financially unable to follow through. It is also possible that Ms. Litt
tried some of them and they did not work. She conceded that obviously if Ms. Litts
functional status changes then her need for some of the recommended supports would
be reduced.
b) Response
by Robert Gander
[336] This
response was provided in September 2014.
[337] Mr. Gander
found that the actual observation and testing of Ms. Litt by Ms. Berry
had been insufficient to determine her overall level of disability and did not
support the extensive future care items that had been recommended. In his view
a wide variety of household tasks should have been observed in order to reach
any conclusion about Ms. Litts functioning. What Ms. Litts
observations did reveal was that Ms. Litt had sufficient mobility and
strength to perform all of the requested activities, as well as other
activities that she performed spontaneously. As a result Mr. Gander did
not believe that it had been demonstrated that Ms. Litt was incapable of
performing any home-based functional activities.
[338] He also
had concerns about the absence of any provision for tapering off some of the
future care supports in the event that Ms. Litt improved her functioning
through the rehabilitation that had been recommended to her, in particular
through weight loss and increased fitness. In this regard he thought that it
would actually be beneficial to Ms. Litts rehabilitation for her to
perform various household tasks, to increase her mobility and fitness.
E. Surveillance
Evidence
[339] Ms. Litt
was observed by private investigators and her activities were video-recorded on
March 17, 18 and 23 and May 3 and 4, 2014. The recordings show Ms. Litt
walking; standing and interacting with tradesmen who are working in the front yard
of her home, including moving her arms and pointing; driving home from the RBC
branch in Ladner and buying fast food at a drive-thru window. These
observations are not meaningfully inconsistent with anything that she has
described, but they do show her adopting a less abject and pain-wracked persona
than she presented in her testimony (although she does keep one hand behind her
back in what could be a supportive stance while she is standing) and I infer
that the defendants counsel led the evidence to show that contrast.
F. Present
Value of Awards for Future Events
[340] Two
economists — Curtis Peever on behalf of Ms. Litt and Mark Gosling on
behalf of the defendants — offered methods for calculating the present values
for any awards that Ms. Litt might receive for impairment of her future
earning capacity or for costs of future care. The main difference in their
opinions was with respect to the formula for rendering future losses of
earnings into present dollars — in particular whether it should include
statistical labour market contingencies. For reasons that I will discuss, this difference
of opinion did not end up being significant to the calculation of that award.
Their proposed calculations with respect to cost of future care were very
similar.
III. Discussion
A. Credibility,
Reliability and Findings of Fact with respect to the nature of the injuries and
causation
[341] As I said
in the introduction, the critical questions that need to be answered in this
case are: (1) what injuries were actually caused to Ms. Litt by each of
these accidents and (2) what are their continuing effects on her life.
[342] Starting
with Ms. Litts own evidence, I find that it had some shortcomings that
require me to treat it with caution.
[343] While I
appreciate that she had to recount more than a decades worth of events and an
exceptional level of precision cannot be expected, I still found her narrative
rather vague on some important matters, such as her suicide attempt in 2004,
which she described in a curiously superficial manner, or her searches for
alternative employment after her apparent falling out with RBC. Similarly,
while some of her experts attribute her weight gain to her inability to
exercise due to her pain symptoms (and, for example, she described excessive
eating in her interview with Dr. Gouws), her own references to the reasons
for it in her evidence were oddly oblique — the only direct explanation being
a reference to eating a lot in the summer of 2012. Again, I would have
expected a narrative of the relationship between her injuries and her physical
condition would have explained the cause of that very significant physical
condition in a clearer way.
[344] Most
importantly, I noted a marked difference in her degree of responsiveness to
questions on direct and cross-examination. There were numerous instances where
she offered long, confusing and unhelpful answers. The topics on which she
responded in this manner included: her avoidance of capital gains tax as a
result of living briefly in the homes that her father had built, whether she
felt that her husband was not sticking up for her with his family, whether his
family were hard on her and prevented her from receiving counselling after the
first accident and, least coherently of all, whether she felt mistreated by RBC
in the context of Dr. Cohenes note that she was contemplating a human
rights complaint. She also displayed vague responses to seemingly simple
questions, like the square footage of her current home, how much they sold a
previous one for and whether there was a profit from it.
[345] The common
thread of many of Ms. Litts problematic responses seemed to be her
perception that a more straightforward answer might be detrimental to her case.
For example, it seems obvious on all the evidence that she was at odds with her
in-laws following the 2003 accident, and her unconvincing attempts to deny it
in the face of her previous statements to that effect demonstrates a strategic
approach to testifying, intending in that instance to minimize an alternative non-accident-related
explanation for her psychological condition. This leads me to the overall
concern that her evidence was motivated more by her interest in the outcome of
this case than the desire to be candid at all times.
[346] Despite
these concerns however, I think there is enough in the surrounding
circumstances of her life, as described by her non-expert supporting witnesses
and observed during her attendances to Dr. Lee for me to be satisfied that
she perceived herself to be suffering from the various symptoms that she has
described from time to time, whether or not they were always entirely
physically-based. Her husband, sister, mother-in-law and friend gave unforced
and natural-sounding accounts of a level of pain, depression and inactivity
that goes beyond what would be possible to exaggerate and then sustain for such
extended periods. In the same way, leaving aside the shortage of objective
findings of injury, Dr. Lees records track the progress of Ms. Litts
physical and mental afflictions over the years, which unfolded in ways that are
too idiosyncratic to be solely part of a scheme to achieve success in
litigation. The gap between the date of the first accident and Dr. Lees
first notation of psychological complaints about five months later is
concerning and deserves scrutiny, but the in-laws who are the supposed root of
her problems during this period are not mentioned either, so it may be that Ms. Litt
was not opening up about any of her emotional or psychological concerns until
then.
[347] The other
consideration that persuades me to accept the credibility of her essential
narrative is the extreme unlikelihood that she would deliberately sabotage a
job from which, on all the evidence, she clearly derived such enormous
self-esteem. Whatever its true origins, which I will discuss below, her pain
symptoms and mood disorder have to this point cost her a career to which she
had made a very promising start — turning her from a a valued employee to
one whose poor performance subjected her to workplace discipline. I think that it
is unlikely to have occurred in the absence of at least a perception that she
cannot cope with her pain.
[348] Implicit
in this finding is my rejection of the propositions advanced by the defendants
that she is more interested in carrying on the family construction business or
raising children than returning to her RBC position. Her unsatisfactory responses
to questions about the tax and other financial details of the homes that she
has been involved with are troubling from the point of view of her credibility,
and her name on the building permit for the current home and her role in
placating a discontent tradesman suggest that she is not as detached from the
process as she claims, but this is a far cry from proving house construction as
a viable financial alternative to her employment with RBC. Similarly,
transporting Jonah to his recreational activities during her times on leave suggests
a greater ability to parent actively than her evidence suggested, and I have no
difficulty in concluding that one or more additional children were on the cards
before the accidents, but again this falls well short of demonstrating that
stay-at-home parenting was her actual goal.
[349] Turning to
the evidence dealing with the extent of Ms. Litts physical injuries, I
find first of all that I am unable to accept Dr. Bishops categorical
assertion that the outside limit of the duration of her actual physical
injuries is 16 weeks. A comprehensive study that he accepted as authoritative
shows that there is a greater variation in that recovery period, before even
considering the influence of any psychological problems on the experience of
pain. In addition, though through no fault of his own, he has no records and
therefore no real evidentiary basis to critique the medical findings that were
made by others in relation to Ms. Litts 2010 accident. While, as I will
discuss, there is a good argument that Ms. Litts psychological condition
has overtaken any physical causes of her pain, I am not convinced that any
contribution by her physical injuries ended as quickly as he contends.
[350] Once one
puts that proposed absolute time limit for recovery aside, there is really
nothing about Dr. Lees ongoing observations and diagnoses in relation to
soft tissue injury or Dr. Stewarts first two reports that appears
unlikely.
[351] It seems
clear from her statement to Dr. Lee about her level of neck function in 2008,
as well as her ability to manage her pain, graduate successfully and obtain and
excel initially at her RBC position, that although Ms. Litts soft tissue
injuries still caused her some discomfort, they had receded to quite a
manageable level by the time of the 2010 accident, including any pain-related
psychological problems. For example, the accounts by Ms. Litt herself and
her family members about her difficulty in managing the infant Jonah after his
birth pale in comparison to her challenges in parenting him that they describe
after the 2010 accident. I think that Dr. Gouwss assumption that she had
made a reasonable recovery from the first accident by the time of the second
accident is well-founded.
[352] Again,
once one puts aside the absolute limit of 16 weeks that Dr. Bishop
attaches to her soft tissue injuries, there are no deficiencies in the expert
opinions that describe what amount to moderate soft tissue injuries, with
symptoms focusing on her mid-back. Absent any psychological overlay, it seems
that they would have been unremarkable injuries of their kind, potentially
nagging, but not debilitating.
[353] Counsel
for the defendants emphasized the much greater severity of the collision in
2003 in order to undermine the likelihood of the 2010 collision having caused
more severe injuries. While as a matter of common sense and logic the degree of
force involved in a collision may offer circumstantial evidence of the likely
severity of injuries arising from it (see Cahoon v. Brideaux, 2010 BCCA
228 at para. 85) there is no evidence that the 2010 collision could not
have produced the type of moderate soft tissue injuries that seem to have
resulted, and common sense alone does not dictate any inference along those
lines.
[354] What the
question of causation in this case really comes down to is what degree of
psychological injury, if any, either accident caused and whether some portion
of such an injury would likely have arisen even without the accidents, in view
of Ms. Litts pre-accident history and vulnerabilities. As Dr. Gouws
points out, her pain has persisted beyond the normal tissue healing periods and
her disability exceeds that expected by objective findings. Mr. Gander,
whose report I found thorough, insightful and fair, and which was not
challenged by cross-examination, also identified a gap between her perceptions
of her limitations and their actual physical basis. I have already found that
she was not making her symptoms up, however reduced their continuing physical
basis might be.
[355] I will
start by saying that I find I cannot attach any weight to Dr. Levins
opinion. He conflates the routine nature of the accidents with the requirement
for a diagnosis of pain disorder under the DSM-V that the patient experiences
the injuries as significant, catastrophic or life threatening. Their
objective severity aside, Ms. Litt certainly perceives her injuries as
being significant. His assertion that there can be no PTSD here because the
accidents were not traumatic also ignores that fact that Dr. Lu does not
rely on PTSD to support his diagnosis of pain disorder. PTSD is most prominent
in Dr. Lees records, and I would not give as much weight to his diagnoses
in psychiatric matters in any event.
[356] More
importantly, Dr. Levin made assumptions that are not borne out by the
evidence, such as that Ms. Litts function was seemingly unimpaired in
the years following the accidents, which he seems to have based largely on her
continuing ability to take family vacations that involved air travel.
[357] Worst of
all in my view, he overlooked or ignored numerous entries in Dr. Lees
clinical records that had the potential to undermine his opinions. My overall
impression was that the primary purpose of his report was to counteract Dr. Lus
opinion, rather than to address the evidence objectively, and that it was not
prepared carefully.
[358] I found Dr. Wisemans
report and testimony to be quite balanced. Of course he is not able to comment
on matters that occurred after his 2008 interview with Ms. Litt, and he readily
conceded that, in reaching his opinion on the risk of a relapse of her anorexia
nervosa based on life stressors alone without the accident, it would have been
helpful to review clinical records from her acute phase of that illness.
[359] Nevertheless,
I found his description of the range of complex emotional issues that underlie
anorexia nervosa to be helpful, and several of these issues seem to apply to Ms. Litt
and her situation. I also think he is correct that Ms. Litts
vulnerabilities could have been aggravated to an extent by her other life
stressors even if the accident had not occurred. It seems a matter of common
sense that a sufferer of anorexia nervosa and depression would be affected by the
marital and family discord that obviously went on in Ms. Litts life after
the 2003 accident. But as he himself concedes when considering the potential
effects on her of Mr. Johals pornography use, it is somewhat speculative
to suggest that anything approaching the level of disability that she
demonstrated after the 2003 accident would have arisen without that accident. I
am satisfied it took the added ingredient of soft tissue injury pain to
activate more serious psychological symptoms and that, however tumultuous at
times, Ms. Litts other life pressures would not have done it.
[360] My first
observation about Dr. Lus opinions is that as they progress over time,
they seem to track the development of Ms. Litts difficulties in a way
that resonates with other reliable evidence.
[361] In his
2006 and 2009 reports he expressed opinions on her psychological condition that
are consistent with the recovery from her physical injuries and increase in her
overall functioning that enabled her to finish her degree, began her career in
a promising way and at least cope, if not thrive, in caring for her baby. He
said in 2006 that his recommendations at that point were capable of leading to
substantial improvement and in 2009 he said that additional psychological
counselling would consolidate her improvement. These contemporaneous observations
echoed the more optimistic situation that she described in her evidence of that
period. I think it also speaks to his objectivity that he strongly emphasized his
concerns about the risk of a relapse of her anorexia nervosa, which he
characterized as being in stable recovery at that point, when making his
recommendations, rather than minimizing its continued presence in her life.
[362] Counsel
for the defendants raised a number of alleged shortcomings in Dr. Lus
evidence. Of these, I perceive the most significant to be his failure to
comment on the lack of a close temporal connection between the 2003 accident
and the onset of her psychological symptoms in Dr. Lees records or to
document that various alternative sources of those problems in her life; his
minimization of the significance of her 2004 suicide attempt; and his failure
to note Ms. Litts substantial weight gain in 2009, thus creating the
misleading impression in 2012 that her excessive weight was all attributable to
the 2010 accident.
[363] I do not
find these points convincing. The 2006 and 2009 reports characterize Ms. Litts
psychological problems as being capable of resolution. They were directed to
the idea that her physical injuries were triggering psychologically undesirable
effects, most importantly weight gain, which raised the risk of a relapse of
the anorexia nervosa. He was not at this point diagnosing a pain disorder, with
its creation of pain perception that goes beyond any physical cause. It is not
clear to me how detailing the alternative sources of stress in Ms. Litts
life would have been relevant when he was not yet asserting that psychological
factors were influencing her experience of pain. It is also incorrect to
suggest that he glossed over Ms. Litts weight gain in his 2009 report, as
he explicitly expressed concern about her pregnancy-related weight gain.
[364] Ultimately
I find that Dr. Lus diagnosis of pain disorder is a reliable one and that
it offers a realistic explanation for Ms. Litts self-defeating behaviour
in the years following the 2010 accident. It is meaningful that Dr. Gouws
reached the same conclusion, although his lack of psychiatric specialization
may have given it less weight standing on its own.
[365] The only
area of Dr. Lus opinion that I am unable to accept is his assertion that Ms. Litts
ability to work in 2012 represented her maximum functional capacity. Dr. Gouwss
assertion of her suitability only for part-time work is similarly suspect. (I
am not as concerned with Ms. Berrys statement that Ms. Litt was
unlikely to return to the workplace, because she was only relying on workplace
statistics rather than on her own purported expertise.) The difficulty I have
is that these assertions are now stale, in light of the improvement that she
has shown both physically and psychologically from her relatively recent
decision to embrace the long-standing recommendations about diet and exercise
that she has received previously. 2012 may well have been one of Ms. Litts
lowest points psychologically and opinions that do not take account of her
subsequent progress cannot reliably speak to her future prospects.
[366] I am aware
that Dr. Stewarts more recent report contends that the accidents
destroyed Ms. Litts career and that she is suitable only for sedentary
work for a maximum of 18 hours per week with days off between work days, but
this is probably the weakest part of that report. It seems to me that she is
simply reflecting back Ms. Litts own perceptions of her situation and
capacity for work, without bringing any scientific rigour to the process, and
she is not sufficiently qualified to weigh in on the psychological disturbances
that I have found are driving Ms. Litts disability.
[367] The
defendants have argued that I should draw an adverse inference from the failure
of Ms. Litt to call her treating doctors — most importantly Dr. Mok,
Dr. Weiss, and Dr. Cohene — or her RBC co-workers and supervisors
during her past two difficult years there.
[368]
The law governing adverse inferences from failure to call medical
witnesses is explained in Buksh v. Miles, 2008 BCCA 318. It is put in
the context of instructions to a jury, but is equally applicable to a
self-instruction in a judge-alone trial:
[35] In this environment,
and bearing in mind the position of a lawyer bound to be truthful to the court,
it seems to me there is a threshold question that must be addressed before the
instruction on adverse inferences is given to the jury: whether, given the
evidence before the court, given the explanations proffered for not calling the
witness, given the nature of the evidence that could be provided by the
witness, given the extent of disclosure of that physician’s clinical notes, and
given the circumstances of the trial (e.g., an initial agreement to introduce
clinical records that work contrary to the inference, or incorporation of that
witness’s views or observations in the report of a witness called by the other
side) a juror could reasonably draw the inference that the witness not called
would have given evidence detrimental to the party’s case. Where, as here, the
trial started on the basis that all records should be before the jury, and
ended with a request for an instruction on adverse inferences, and when both
counsel have explained the failure to call the witness or witnesses by
referring to their own assessment of the utility or need for the evidence, the
answer to the threshold question I have stated is not self-evidently
affirmative. In this case, in my view, the judge herself should have heard the
explanations, considered the degree of disclosure of that witness’s files and
the extent of contact between the party and the physician, received submissions
and determined whether a reasonable juror could draw the inference sought
before giving the instruction to the jury for its consideration in its fact
finding role. If not, the instruction had no place in her charge to the jury.
[369] Applying
these considerations here, I note that while no explanation was offered for Ms. Litts
decision not to call these treating doctors, the clinical notes of Drs. Weiss
and Cohene were available at trial, and Dr. Weisss opinion that Ms. Litts
function was not as impaired as Dr. Stewart believed was actually brought
out in the evidence. Dr. Mok referred Ms. Litt onto Dr. Cohene
for talk therapy after his initial involvement and I have not been told how his
opinion, whatever it may have been, would have been particularly helpful given
his relatively brief period of care. Accordingly I would not draw any adverse
inference in relation to the absent medical witnesses.
[370] With
respect to more current RBC witnesses, I think the failure to call these
witnesses is essentially self-regulating. On the current evidence it seems
clear to me that whatever its root psychological causes may be, as far as RBC
is concerned Ms. Litt was believed to have performed poorly as an employee
over the last two years, with an insufficient medical basis to justify further
disability leave. If a more favourable situation could have been described by her
current supervisors or co-workers, she is the one who has been prejudiced by
the failure to lead it.
[371] In summary,
I will make the following findings on causation and the current state of Ms. Litts
injuries:
·
Ms. Litt suffered moderate soft tissue injuries to her neck,
shoulders and back in the 2003 and 2010 accidents, which would not have been
significantly disabling in themselves.
·
Her physical injuries from the 2003 accident had receded to a
manageable level by the time of the 2010 accident, but those injuries were
aggravated by the 2010 accident.
·
Ms. Litt developed a pain disorder as a result of the 2010
accident.
·
Ms. Litts pre-existing anorexia nervosa and depression made
her more vulnerable to developing depression and other psychological
difficulties after the 2003 accident and to developing a pain disorder after
the 2010 accident.
·
Despite the other stressors in her life, Ms. Litt would not
have suffered any disabling reappearance of her pre-existing conditions if the
accidents had not occurred.
·
There is a possibility of a continued improvement to her
functioning and her capacity for employment, based on her self-described
improvements to her outlook after beginning to follow a regime of healthy diet,
exercise and counselling.
[372] I infer
from the absence of any reference to the issue in the submissions that the
parties consider the injuries to be indivisible in terms of the
responsibilities of the respective defendants. I agree with that position. It
is not possible to identify what portion of Ms. Litts pain disorder is
attributable to the 2010 accident injuries alone, as opposed to an aggravation
of the 2003 injuries. Accordingly I will not be apportioning damages between
the defendants.
B. Non-Pecuniary
Damages
[373] Ms. Litt
seeks $140,000-$160,000 under this heading. She provided cases involving awards
in that range.
[374] I could
not place much emphasis on Bouchard v. Brown Bros. Motor Lease Canada Ltd.,
2011 BCSC 762, because it lacks the element of psychological injury that I have
found so central to Ms. Litts disability in this case. Marois v.
Pelech, 2007 BCSC 1969, is of more help, since it involved a plaintiff who
had developed significant depression and chronic pain that significantly
affected her enjoyment of life, with an uncertain prognosis six years after the
accident. As in Ms. Litts case, deficiencies in that plaintiffs evidence
required the trial judge to approach it with caution, and the findings of fact
that she indeed suffered from the injuries claimed rested on the supporting
evidence. Ms. Litts counsel advises that in present dollars the award in
that case of $130,000 would amount to $140,000. Also somewhat similar is the
case of Khosa v. Kalamatimaleki, 2014 BCSC 2060, in which the plaintiff,
in addition to ongoing neck pain, suffered from anxiety and depression that
were attributable to the accident. As in the present case, the unlikelihood of
her responding favourably to further psychological treatment had not been
conclusively established. The award there was $140,000. I would say that the
meaningful distinguishing factor in these two otherwise helpful cases is that
both feature a degree of actual physical impairment that is somewhat greater
than I have found for Ms. Litt, whose chief disability is ultimately a psychological
condition.
[375] The
defendants submit that an award of $40,000 would be appropriate. I did not find
the cases that they have relied on, which offer a range of $40,000-$60,000, to
be that helpful, because of significant factual distinctions between their
facts and Ms. Litts situation as I have found it.
[376] In Hardychuk
v. Johnstone, 2012 BCSC 1359, the Court found that the plaintiffs psychological
difficulties were not related to the accident. In Dakin v. Roth, 2013
BCSC 8, the allegation that the accidents had caused the plaintiffs anxiety
and depression had not been pleaded. In Rezaei v. Piedade, 2012 BCSC
1782, the Court found that the plaintiff had exaggerated her pre-accident
activity level and her post-accident degree of impairment and that although she
was more emotionally volatile since the accident, she had regained most of her
pre-accident level of functioning. Finally, Rozendaal v. Landingin, 2013
BCSC 24, did not involve any psychological injury.
[377] Of the
non-exhaustive list of factors that can influence an award of non-pecuniary
damages (Stapley v. Hejslet, 2006 BCCA 34) I think that the impairment
of Ms. Litts marital and family relationships, especially her ability to
parent her young son, is the most significant, along with her emotional
suffering.
[378] Keeping in
mind the need to tailor the award to the particular circumstances of the case,
but to consider outcomes in similar cases to ensure the overall fairness of the
amount, I conclude that damages of $120,000 are appropriate under this heading.
C. Past
Income Loss
[379] Ms. Litt
is not advancing any claim for past wage losses in relation to the 2003
accident. Rather she focuses on the consequences of the 2010 accident on her
earnings from then until the trial.
[380]
The proper approach to determining an award under this heading was
succinctly described in Williams v. Gallagher, 2015 BCSC 1776:
[204] In Smith v. Knudsen, 2004 BCCA 613, the Court
of Appeal confirmed the approach to be taken in determining whether a plaintiff
has established a claim to past loss of earning capacity. A plaintiff must
prove on a balance of probabilities that an injury has caused an impairment to
his earning capacity that has resulted in a pecuniary loss.
[205] A claim for past loss of
income earning capacity is based on the value of the work that the injured
plaintiff would have performed but was unable to perform because of the injury:
Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30. A common
method of assessing this value is to project the net income the plaintiff would
have earned in the period between the accident and the trial had the accident
not occurred, taking into account all realistic contingencies, and to award the
difference between that projected net income and the actual net income the
plaintiff did earn or was capable of earning during that period. Hypothetical
events, including what the plaintiff would have earned in the absence of the
accident, need not be proved on a balance of probabilities, but rather are
given weight based on their likelihood: Smith at para. 29.
[381] Ms. Litt
submits that the most likely of the hypothetical past events would have
involved her remaining in the senior account manager role for two-and-a-half years,
receiving a raise to $60,000 after one-and-a-half years and to $70,000 after
two-and-a-half-years, then moving on to a commission sales position starting at
$100,000 per year. To this should be added vacation pay, performance bonuses
that the evidence suggested were routinely awarded, and non-wage benefits that
both economists valued at 10%. After deducting income tax at 21.1%, Ms. Litt
would receive $215,806.
[382] The
defendants focus on what they say are numerous realistic possibilities pointing
Ms. Litt away from continued employment. These include her undistinguished
academic performance, her familys improved financial position, her interest in
having another child and the relatively brief time that she had been employed
at RBC before the accident. They characterize her roller coaster of
promotion, disability leave, demotion and leaves of absence following the
accident as an indicator of her likely performance. More fundamentally they say
it is realistic to envision her seeking part-time employment during this
period. All things considered they submit that $40,000 would be a reasonable
award under this heading.
[383] I do not
find the defendants alternative scenarios very likely. Ms. Litts
academic performance was not a bar to success after she was hired by RBC and
any increase in her standard of living based on her husbands work does not
detract from her demonstrated efforts to return to work full-time after her
first maternity leave. I have attributed her poor post-accident job performance
to her pain disorder resulting from the accident and there is no basis in the
evidence to give weight to the possibility of it occurring in the absence of
the accident. Finally there was no dispute among the current RBC managers that part-time
work in account manager positions is no longer available.
[384] In my view
by far the most likely scenario would have involved Ms. Litt continuing as
a senior account manager, progressing in salary increments as projected in Ms. Litts
submissions to the maximum of $70,000. The most likely interruption of this
progress would have been at least one further maternity leave for one year,
followed by a return to the position full-time. I do not see a progression to a
commission sales position as a meaningful possibility within that time period
however. Ms. Litt did not testify that such a position was a career goal
and when the mortgage specialist position was put to her as a possibility she
appeared to be concerned about its 100% commission nature.
[385] Adding
performance bonuses and non-wage benefits and deducting income tax the rate
proposed on behalf of Ms. Litt yields a loss of $191,269. While I regard a
maternity leave during this period as better than a 50% possibility, the year
within which it would occur cannot really be weighed and the employment
insurance benefits for such a leave are not in evidence, so I think that an
overall award under this heading of $140,000 would be fair to both Ms. Litt
and the defendants.
D. Impairment
of Future Earning Capacity
[386]
The essential principles governing the assessment of impairment of
future earning capacity were summarized in Perren v. Lalari, 2010 BCCA
140:
[32] A plaintiff must always
prove, as was noted by Donald J.A. in Steward [Steward v. Berezan,
2007 BCCA 150], by Bauman J. in Chang [Chang v. Feng, 2008 BCSC 49], and
by Tysoe J.A. in Romanchych [Romanchych v. Vallianatos, 2010 BCCA
20], that there is a real and substantial possibility of a future event leading
to an income loss. If the plaintiff discharges that burden of proof, then
depending upon the facts of the case, the plaintiff may prove the
quantification of that loss of earning capacity, either on an earnings
approach, as in Steenblok [Steenblok v. Fung (1990), 46 B.C.L.R.
(2d) 133 (C.A.)], or a capital asset approach, as in Brown [Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.)]. The former approach will be
more useful when the loss is more easily measurable, as it was in Steenblok.
The latter approach will be more useful when the loss is not as easily
measurable, as in Pallos [Pallos v. Insurance Corporation of British
Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.)] and Romanchych [A]s
Donald J.A. said in Steward, an inability to perform an occupation that
is not a realistic alternative occupation is not proof of a future loss. [Emphasis
in original.]
[387]
As in the case of past income loss, hypothetical events (such as
how a plaintiff’s life would have proceeded but for the accident) or future
events are given weight according to their relative likelihood: Parypa v.
Wickware, 1999 BCCA 88 at para. 66.
[388]
If the quantification of the loss is to be proven on the capital asset
approach then the well-known factors identified in Brown at p. 356:
1. The plaintiff has been rendered less capable overall
from earning income from all types of employment;
2. The plaintiff is less marketable or attractive as an
employee to potential employers;
3. The plaintiff has lost the ability to take advantage
of all job opportunities which might otherwise have been open to him, had he
not been injured; and
4. The plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.
must be
addressed in the context of the facts of the case, and the trial judge must make
findings of fact as to the nature and extent of the plaintiff’s loss of
capacity and how that loss may impact the plaintiff’s ability to earn income: Morris
v. Rose Estate (1996), 23 B.C.L.R. (3d) 256 (C.A.) at para. 24. In
other words, while the capital asset approach is not a mathematical calculation,
the trial judge must still make findings of fact on which to base the
assessment: Morgan v. Galbraith, 2013 BCCA 305 at para. 54.
[389] Ms. Litt
argues that her loss is sufficiently measurable that the earnings approach is
suitable to quantify her loss. As in the case of her past income loss, she
rests her claim on the likelihood that she would have moved into commission
sales and earned the $150,000 per year that Mr. Bratch would have earned
after two years on the job or the $200,000 per year that Mr. Poonia will
earn after two years.
[390] Assuming a
retirement age of 65, she proposes two alternative methods of calculation. The
first takes the lower of these two figures and applies an actuarial model for
determining its present value. This yields a present value of her loss of
$3,453,175. The second approach is to take the mid-point between the two
earnings — $175,000, which would fairly reflect the possibility of both higher
earning years and lower ones, such as further maternity leaves. Applying the
income multiplier developed by Mr. Gosling at the request of Ms. Litts
counsel yields a present value of $3,127,245.
[391] The
defendants say that the current evidence does not provide any basis beyond pure
speculation to extrapolate Ms. Litts likely future earnings in this
manner. In their submission, her uncertain future requires the use of the
capital asset approach to quantify any loss. When considering the possible
extent of such a loss, they say that there is no compelling evidence that she
would have risen above a position as senior account manager and that her work
performance to date and her family plans make it unlikely that she would even
have continued indefinitely in that position. Her recent improvement in health
and attitude also needs to be taken into account. Giving her the benefit of
the doubt the defendants are content to see an award of $40,000 made under this
heading.
[392] I agree
with the defendants that the evidence giving rise to the assessment of future
possibilities is too general and speculative to permit me to use the earnings
approach in this case. Ms. Litts situation can be most accurately
captured by viewing the extent of any impairment of her ability to earn income
as reduction in the value of that ability as an asset to her.
[393] I do not
find the career progress and earnings of Mr. Bratch and Mr. Poonia
particularly informative in informing the value of such a reduction, because
the evidence does not provide any particular reason to believe that Ms. Litt
would have pursued an entrepreneurial path, in preference to any of her many
other career options. The same is true of pursuit of the less remunerative but
presumably more stable leadership path towards management. The evidence was
that some employees stay in account manager roles for the longer term and it
may well have been that the senior position represented the highest level at
which she could excel. Her strong career orientation means that the defendants
suggested role as a stay-at-home mother is not a realistic possibility, but
some family-related absences or reductions in her level of participation are
realistic.
[394] Her early
success and quick promotion made it reasonable for me to assume that she would
remain with RBC in the period between the 2010 accident and the trial, but
beyond that there is no basis in the evidence to prefer any particular outcome.
[395] The
crucial difference between this case and Danicek v. Alexander Holburn
Beaudin & Lang, 2010 BCSC 1111, on which Ms. Litt relies, is that
there was clear evidence in that case that the plaintiff was pursuing a
specific profession and an identified specialty within that profession, and
that she had exceptional talent and aptitude for that very path, so as to
permit the trial judge to consider predictions of her lifetime earnings in such
a role to arrive at an award that would reflect the harm to a capital asset.
[396] The
findings of fact that bear on this issue are first that Ms. Litts pain
disorder causes her to experience her moderate soft tissue injuries as
significantly disabling, which they would not otherwise be in themselves.
[397] As I have
said when dealing with the expert evidence however, I am not satisfied that
this disorder necessarily restricts her to part-time work. The functional
capacity evaluation satisfied me that her physical limitations in the
workplace, including the massive flare-up of symptoms that she says she experienced
after the testing, are largely a product of her psychological problems. Her
recent focus on diet and fitness, which she does not appear to have pursued in
a sustained way before, and her continued involvement in counselling, may well
increase her work capacities, by decreasing the aggravating factor of excess
weight and supporting the development of a more positive mental state in
relation to her physical limitations.
[398] In
addition, the evidence does not satisfy me that her difficulties with her
employer are indicative of her workplace performance in all settings. It is my
impression on all the evidence that her employment relationship with RBC has
become in itself an aggravating factor in her exaggerated sense of her own
disability. Her current situation is the culmination of what her employer
regards as performance problems, as distinct from her disability issues, apparently
based on her persistent lateness and unacceptable absences for medical
appointments. I discerned a clear element of resentment in her evidence,
especially concerning the loss of her promotion and then having to work as a
teller, despite her protestations that she does not think anyone has treated
her unfairly. I also find it hard to believe that Dr. Cohene would have
encouraged her to pursue a human rights complaint in the absence of any
inclination on her part, as she claims. As I said to Ms. Litts counsel
during submissions, the evidence does not paint a clear picture of exactly what
went wrong for her at RBC, or the extent to which her accident-related
psychological condition actually undermined her previous effective performance.
[399] In this
regard, her ability to do things like makeup for a show, driving her son to
some activities or taking vacations that require long flights do not undermine
the factual foundation of her pain disorder, but they do show that context is
very important to her emotional experience of her pain symptoms, and suggest
that there is something in the particular relationship with RBC that is not
necessarily going to arise in all work situations.
[400] All that
said, an application of the Brown factors still leads to a finding that
her future earning capacity as a capital asset has been diminished. I have found
that the pain disorder is a reality and her ongoing perception of her
limitations will certainly render her less capable of earning income in all
situations, even if her situation improves and she finds more supportive and
accommodating employment. Her self-described improvement relates to an
acceptance of her limitations, not the elimination of her pain, and so she is
facing an ongoing limitation of her tolerance for the requirements of even
sedentary work. This is also a factor that will make her less marketable in
comparison to applicants who do not come with any limitations or requirements
for accommodation. While she has only ever sought the most sedentary type of
office work imaginable in her career so far, the range of more active positions
that also draw on her education and experience would inevitably trigger the
perception of pain and disability that has dogged her work with RBC and are
therefore foreclosed to her. The cumulative effect of these challenges is that
she has been rendered less valuable to herself overall in a competitive labour
market.
[401] Therefore I
would say that Ms. Litt is deserving of significant compensation to
address these impairments, but nothing approaching the type of award that she
sought to quantify through the earnings approach. I will award her $200,000
under this heading. A present value calculation does not appear to be required
for impairment that is valued under the capital asset approach: Gilbert v.
Bottle, 2011 BCSC 1389, at para. 233. I infer that this is because the
diminution of the capital assets value to the plaintiff has already occurred,
even though that diminution will continue to manifest itself in the future.
E. Loss
of Housekeeping Capacity
[402]
McTavish v. MacGillivray, 2000 BCCA 164, offers a pithy
description of the basis for assessing loss under this heading:
[63] As we have seen, it is now well established that a
plaintiff whose ability to perform housekeeping services is diminished in part
or in whole ought to be compensated for that loss. It is equally well
established that the loss of housekeeping capacity is the plaintiff’s and not
that of her family. When family members have gratuitously done the work the
plaintiff can no longer do and the tasks they perform have a market value, that
value provides a tangible indication of the loss the plaintiff has suffered and
enables the court to assign a specific economic value in monetary terms to the
loss. This does not mean the loss is that of the family members or that they
are to be compensated. Their provision of services evidences the plaintiff’s
loss of capacity and provides a basis for valuing that loss. The loss remains
the plaintiff’s loss of economic capacity.
[64] This approach to
valuation of the plaintiff’s loss has the advantage of encouraging family
benevolence, without providing a windfall to the wrongdoer. It discourages the
hiring of less satisfactory and perhaps more expensive substitute services. It
allows a court to determine what services are reasonably necessary by reference
to what services family members were prepared to provide.
[403] Ms. Litt
submits that a modest and restrained reflection of Mr. Johals efforts to
supplement her impaired ability to perform tasks at home would be to credit him
with one hour of housework per day following the 2003 accident and two hours
per day following the 2010 accident. Numerous cases have valued such services
at $15 per hour when assessing the plaintiffs loss of this capacity. This
would yield an award of $87,500.
[404] I am satisfied
that Mr. Johal has done additional housework on a regular basis over the
years that would otherwise have constituted Ms. Litts share of it,
although the requirement for him to do so would have decreased in keeping with the
improvement of Ms. Litts 2003 injury symptoms, before Jonahs birth and the
2010 accident again required his greater involvement. I am also satisfied that
physical tasks relating to Jonah as an infant and toddler fell more to him and
that caring for Jonah when Ms. Litt was sleeping or incapacitated by pain
or fatigue would have been an additional responsibility.
[405] While I
commend the relative restraint that underlies Ms. Litts position under
this heading and agree with the proposed hourly rate, I think the formula
proposed fails to sufficiently reflect the level of improvement before Jonahs
birth that I have found. I think that it also fails to reflect the defendants
telling submission that it would have been difficult for Mr. Johal to
contribute to the same level during the period when he was, by his own admission,
working extended hours. It also does not recognize sufficiently that we are
dealing with compensation only for the loss of work that Ms. Litt would
otherwise have been able to do, not for Mr. Johals efforts at large
within the family. Accordingly I will award $25,000 under this heading.
F. Cost
of Future Care
[406]
Costs of future care will be awarded when costs are reasonable and the
items are medically necessary: Milina v. Bartsch (1985), 49 B.C.L.R.
(2d) 33 (S.C.); affd (1987), 49 B.C.L.R. (2d) 99 (C.A.). A helpful overview of
the assessment process is found in Krangle (Guardian ad litem) v. Briscoe,
[2002] 1 S.C.R. 205:
21 Damages for cost of
future care are a matter of prediction. No one knows the future. Yet the rule
that damages must be assessed once and for all at the time of trial (subject to
modification on appeal) requires courts to peer into the future and fix the
damages for future care as best they can. In doing so, courts rely on the
evidence as to what care is likely to be in the injured person’s best interest.
Then they calculate the present cost of providing that care and may make an
adjustment for the contingency that the future may differ from what the
evidence at trial indicates.
[407]
In Gregory v. Insurance Corporation of British Columbia, 2011
BCCA 144, the Court of Appeal dealt with the type of evidence that courts
should expect on this issue:
[38] Courts do accept testimony from a variety of health
care professionals as to necessary and reasonable costs of future care: Jacobson
v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63, 133 D.L.R. (4th) 377
(S.C.) at para. 182; in which Levine J. (as she then was) said:
[182] The test she enunciated
does not, in my view, require that the evidence of the specific care that is
required by the plaintiff be provided by a medical doctor. In Milina v.
Bartsch, McLachlin J. accepted the evidence of a rehabilitation expert as
to the type of care that should be provided.
See also: Aberdeen v. Zanatta, 2008 BCCA 420 at paras. 43-53,
63; Rizzolo v. Brett, 2010 BCCA 398 at paras. 72-83.
[39] I do not consider it
necessary, in order for a plaintiff to successfully advance a future cost of
care claim, that a physician testify to the medical necessity of each and every
item of care that is claimed. But there must be some evidentiary link drawn
between the physician’s assessment of pain, disability, and recommended
treatment and the care recommended by a qualified health care professional: Aberdeen
at paras. 43, 63.
[408] Ms. Litt
submits that all of the services and items recommended by Ms. Berry are
amply justified. When Mr. Peevers calculations are applied to them, the
result is a present-value of $1,079,445, subject to a tax gross-up calculation
to address the tax consequences of a lump sum. The total could be higher if one
were to take into account increased costs due to inflation since Ms. Berrys
report, but Ms. Litt is content to rely on the figure that emerges from
the 2012 costs.
[409] The
defendants say that Mr. Ganders findings in his reply report should be
preferred and that the maximum allowable award here is $5,000 to address the
active rehabilitation program that she should have begun long ago on medical
advice.
[410] As an
overview, while Mr. Ganders criticisms of Ms. Berrys cost of future
care report must be moderated by the fact that it was not intended by her to be
a functional capacity assessment, like his main report. I agree that Ms. Berrys
housework observation methods may not have been rigorous enough to get behind Ms. Litts
distorted perceptions of her physical limitations. It is also not clear why the
defendants should be responsible for various employment rehabilitation supports
if, as her report also contends, a return to the workplace is unlikely. And of
course the date of her report made it impossible to take into account the
recent improvement in Ms. Litts overall situation.
[411]
Turning then to Ms. Berrys recommendations, I will indicate which
items meet the threshold of necessity and reasonableness, the cost for them as
indicated by Ms. Berry or inferred from other sources in the evidence and,
in the case of ongoing items, the likely duration once I consider the
appropriate contingencies. I will use Mr. Peevers present values for the
amount awarded for the sake of convenience, since his report is tailored to Ms. Berrys
cost estimates:
·
a chronic pain clinic: (preferably a private one to
reduce the waiting times in the public health system), a self-management
program and, likely, support to initiate her access to them — I infer that a
critical element of any chronic pain program will be the addressing the
cognitive elements of a pain disorder so I consider such an involvement to be
reasonable and necessary. Amount awarded: $13,463.
·
continuation of her various current medications: While I
have found that the psychological component drives Ms. Litts experience
of pain, I would not go so far as to say that the physical component is
non-existent, just that it would not be significantly disabling in itself.
Therefore I will allow the pain medication as well as the ones for mood and
sleep problems, which Dr. Lee has been prescribing. Mr. Peever
calculates the present value of these items as $91,527 per year including
applicable taxes. I think there is likely to be some meaningful improvement in
her mood and experience of pain over time that will reduce her dependence on these
medications. Amount awarded: $60,000.
·
a TENS (low-risk nerve stimulation) device to reduce her pain:
Ms. Litt did not know what this device was and had to have it explained to
her by her counsel during her direct examination. I would not allow this cost.
·
gardening implements to reduce strain during that activity, as
well as yard care: There is no evidence of Ms. Litts past involvement
or future interest in gardening or that yard care ever fell within her
household responsibilities. I would not allow this cost.
·
a contoured pillow to improve her sleeping position: I am
not prepared to infer from Ms. Litts evidence of her sleeping
difficulties that this particular item would be beneficial. I would not allow
the cost.
·
ongoing sessions with a psychologist: the evidence
reveals this to be important to Ms. Litts continued improvement — $2,800
per year. Mr. Peever calculates the present value of this form of ongoing
care as $89,639. I think it is likely that Ms. Litt will have received all
possible benefits from this care, at least as far as it related to the effects
of the accident, well before her life expectancy. Amount awarded: $30,000.
·
ongoing assistance of an occupational therapist, heavily
front-loaded, to implement Ms. Berrys recommended extensive support for
rehabilitation and return to work: I would allow this as a one-time cost
for 120 hours since I have found that Ms. Litt may well do better in a
different work environment and it is crucial that she modify her expectations
of the workplace in light of her vulnerabilities. On the evidence, I do not see
the necessity for it beyond that initial transition process. Amount awarded
$15,720.
·
ongoing physiotherapy and massage therapy: The evidence
shows that Ms. Litt derives some ongoing relief from her pain symptoms
from physiotherapy. Mr. Peever calculates the present value of the
recommended physiotherapy as $10,693, based on $1,200 as a one-time cost for 24
sessions and $300 per year afterwards. The evidence with respect to massage
therapy was too vague for me to be satisfied that it continues to be medically
necessary so I will not allow it. As in the case of the assistance of a
psychologist, I think that Ms. Litt will have received all possible
benefits from physiotherapy well before her life expectancy. Amount awarded:
$3,000.
·
a dietary consultant and intervention: I think the evidence
reveals this to be as important to Ms. Litts recovery as the
psychological counselling and a one-year period of involvement beyond the
initial consultation to prevent backsliding seems reasonable to me. Amount
awarded: $3,015.
·
ongoing homemaking assistance; best accomplished initially by
a live-in nanny until her son is 11: I am not satisfied that this level of
support is necessary. The evidence of Ms. Litt and her family members,
together with Ms. Berrys assessment, does show that some housekeeping
tasks that are likely to aggravate her symptoms are currently being done by her
husband, or in the case of unpacking from their move were not being done at all,
and that she cannot keep up with Jonah and has periods when she is too tired
to interact with him. As I said when dealing with loss of housekeeping
capacity, Mr. Johals ability to shoulder a significant burden of the
housework and childcare while working full-time has likely been overstated a
bit in the past and what needs to be replaced here is only Ms. Litts
ability to do her share of it. The evidence falls short of showing that there
is any deficiency in the amount or quality of care that she provides her son,
only that some physical aspects of it are beyond her and that when she reaches
a state of exhaustion she is not able to do any of it. I think that three hours
of housekeeping assistance per week, to be allocated between cleaning and childcare
are required, would cover enough of the heavier cleaning tasks to protect her
physical vulnerabilities and allow for situations in which a physical component
of childcare rises that cannot be avoided (bearing in mind that her son is now
six) or she needs to rest and Mr. Johal is not available to assist: $3,744
per year. Using Mr. Peevers figures this would have a present value of
$119,860. However I think the need for this amount of support will diminish as
Jonah ages, although the birth of additional children could offset it, and some
increase in capacity due to continued improvements in Ms. Litts pain symptoms
and mental state can be expected. Amount awarded: $40,000.
·
moving assistance for the number of times that it is
statistically likely to be required: The evidence did not demonstrate that
Ms. Litt previously took on the physical tasks of home moving or would be
likely to do so in the future. To the extent that unpacking clothing can be
said to be part of the moving process I would say that it is addressed by the
award under the previous heading.
·
the fitness related supports of a community gym/pool membership,
a pedometer, a recumbent bicycle for indoor use, rehabilitation exercise,
equipment to facilitate regular involvement in exercise, and Pilates sessions; assistance
of a kinesiologist to set up instruction and exercises at the gym and pool:
I think these fitness supports, which would otherwise be essential, have been
largely superseded by Ms. Litts very beneficial involvement with LIFT
fitness, which along with counselling and diet seems to be a supporting
foundation of future improvement. I would instead allow the ongoing cost of her
sessions at LIFT as identified in the list of special damages, of approximately
$1,200 per year. Applying Mr. Peevers formula this has a present value of
$38,416 per year. As in the case of the other essential treatments I think that
the maximum benefit of this membership will be achieved well before life
expectancy. Amount awarded: $20,000.
·
an ergonomic assessment of her work space and an ergonomic
work station: I think this assistance would be a useful part of ensuring
that future jobs are begun and carried out on a basis that minimally aggravates
Ms. Litts actual and perceived back symptoms, thus setting her up for
success: $1,378. Amount awarded: $9,801.
[412] Thus the
total award for cost of future care is $194,999. If counsel are unable to agree
on the amount of any necessary tax gross-up, there can be further submissions.
G. Special
Damages
[413] The
defendants took the sensible position in the trial that if I found that Ms. Litt
had suffered injuries in the two accidents then the special damages would be
payable and reasonable. I have obviously done so, and as a result I will award
Ms. Litt the amount claimed of $22,436.26.
H. Failure
to Mitigate
[414]
The law in this area is also helpfully expressed in Gilbert:
[201] The plaintiff has a positive duty to mitigate by
taking all reasonable measures to reduce loss and damages caused by the
defendant’s negligence. This duty includes an obligation to undertake
reasonably available treatment that would assist in alleviating or curing his
or her injuries. The principle of mitigation is based on the general
proposition that a defendant should not be held liable for loss and damages the
plaintiff could have reasonably avoided: Janiak v. Ippolito, [1985] 1
S.C.R. 146; Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC
1111.
[202] Once a plaintiff has established that the defendant
is liable for causing his or her injuries, the burden of proof shifts to the
defendant. To succeed on a mitigation defence, the defence must prove that the
plaintiff acted unreasonably and reasonable conduct would have reduced or
eliminated the loss. Whether the plaintiff acted reasonably is a factual
question. Its answer depends on consideration of all of the surrounding
circumstances: Byron v. Larson, 2004 ABCA 398.
[203] A relevant circumstance
in cases such as this is the plaintiff’s personality and condition before and
after the accident. The law does not require a plaintiff to do that which
cannot be controlled, nor does it require perfection in the pursuit of
rehabilitation. In addition, the defendant must take the victim as found, which
may affect what is to be reasonably expected. For example, a person who has
struggled with life-long obesity may not be expected to lose substantial weight
to discharge the duty to mitigate, even though weight loss would assist
recovery. What the law requires is that the plaintiff makes contextually
reasonable and sincere efforts to limit his or her damages and loss: Qiao v.
Buckley, 2008 BCSC 1782; Antoniali v. Massey, 2008 BCSC 1085.
[415] The
defendants quite correctly point to the recommendations in expert reports going
back many years that Ms. Litt pursue an active rehabilitation program, and
there is a sense in their submission that the positive effects she had been
experiencing more recently could have been achieved much sooner had she
followed those recommendations.
[416] Despite
this, I found Dr. Lus explanation that poor choices of this kind are
inherent in Ms. Litts psychological condition quite persuasive. I view her
self-defeating behaviour in previous years, such as her use of fat burners,
hormones and restrictive calorie intake, as signs of desperation and distorted
thinking, not of wilful disregard for medical advice. Dr. Stewarts
observation about Ms. Litts tendency towards excess in all aspects of her
life also resonates on this point. I conclude as a result that it would be
inappropriate to reduce Ms. Litts damages on the basis of a failure to
take steps that she was not reasonably capable of taking at an earlier stage.
[417]
The defendants cite Graham v. Rogers, 2001 BCCA 432 for the
proposition that failure to mitigate loss of income due to injury can be found
on the basis of a lack of diligent efforts to find alternative employment.
However, the concurring reasons of Madam Justice Saunders point out the absence
of crucial evidence from the defendants to prove such a failure, which is also
absent from this case:
[82] In this case I consider it was open to the trial
judge, on the evidence, to find that the appellant acted unreasonably in his
efforts to find work. However, the appellant’s efforts are only relevant when
the respondent has met the burden of establishing that employment likely was
available at the time and in the relevant geographic area for a person of the
appellant’s abilities and injury profile. Obviously in a market in which a
person like the appellant was unlikely to obtain employment, it matters not
whether the appellant tried diligently, or not at all, to find work.
[83] In this case there was no evidence of the job
market in the appellant’s locale in the years prior to trial
There was no
evidence, from the perspective of the trial date, of actual employment
opportunities in the area, or of employment rate uptakes, or unemployment
rates.
[85] The net result of omitting consideration of the
evidence of availability of work for a person of the appellant’s abilities, at
that time and place, is effectively to place the burden on the appellant to
disprove a failure to mitigate, a reversal of the burden of proof which applies
to this issue. Another result is an implicit invitation to a trial judge to
divine the job market from readings of newspapers, casual discussion or impressions
of opportunities for people in diverse regions, in diverse fields of endeavour.
In other words, it leads to speculation.
[86] The state of the labour
market is capable of some explication. A party seeking to limit damages on the
basis of mitigation is required, within the reasonable limits of proof inherent
to the issue, to lead adequate proof of failure to mitigate, no less than is a
party proving damages.
[418] Therefore
I also decline to reduce the damages for past wage loss on the basis of any
failure to mitigate.
IV. Conclusions
A. Summary
of Awards
[419] In
summary, I award the following:
| Non-pecuniary damages: | $120,000.00 |
| Past wage loss: | $140,000.00 |
| Impairment of Future Earning | $200,000.00 |
| Loss of Housekeeping Capacity: | $25,000.00 |
| Cost of Future Care: | $194,999.00 |
| Special Damages: | $22,436.26 |
| TOTAL: | $702,435.26 |
B.
Costs
[420] Ms. Litt
has received substantially less than the amounts that she sought. However, Loft
v. Nat, 2014 BCCA 108, makes it clear that, having proven her claims, she
is the successful party for costs purposes and the fact that [s]he obtained a
judgment in an amount less than the amount sought is not, by itself, a proper
reason for depriving [her] of costs (para. 47).
[421] If there
have been offers to settle or other matters affecting costs, counsel may make
arrangements with Supreme Court Scheduling for a suitable date for submissions.
In the absence of any such submissions, Ms. Litt will be entitled to her
costs.
The
Honourable Mr. Justice T.A. Schultes
[1]
Dr. Lu also flagged Ms. Litts alcohol intake as a potential problem, even
though it only consisted of two drinks a night, because of the danger of rapid
escalation and its aggravating effects on the sleep apnea that her weight gain
had caused. This is the only reference in the evidence to alcohol as an issue,
and since it was not pursued further I do not intend to return to it in my
discussion.