2008 BCCA Vasiliopolous v. Dosanjh

Before:	The Honourable Madam Justice Prowse
	The Honourable Mr. Justice Chiasson
	The Honourable Mr. Justice Tysoe

T. R. Berger, O.C., Q.C.	Counsel for the Appellant
R. B. Lindsay, Q.C. and C. D’Sa	Counsel for the Respondents
Place and Date of Hearing:	Vancouver, British Columbia
September 8 and 9, 2008
Place and Date of Judgment:	Vancouver, British Columbia
October 14, 2008

Written Reasons by:

The Honourable Mr. Justice Tysoe

Concurred in by:

The Honourable Madam Justice Prowse

The Honourable Mr. Justice Chiasson

Reasons for Judgment of the Honourable Mr. Justice Tysoe:

Introduction

[1] The plaintiff, Mrs. Vasiliopoulos, appeals from the order of the trial judge in a personal injury case awarding her damages of $70,000, rather than the sum of $1,764,794 claimed during closing submissions at the trial. She seeks a new trial.

[2] The plaintiff was injured in a motor vehicle accident through the admitted fault of the defendants. She claimed in respect of soft tissue injury, depression, anxiety, irremediable personality change, brain damage, concussion, post-concussion syndrome, post-traumatic stress disorder and chronic pain syndrome. The trial judge’s award was based on soft tissue injury, depression and anxiety only. He did not accept the plaintiff’s evidence as to the extent of her injuries, and he rejected medical diagnoses of brain injury, post-traumatic stress disorder and post-concussion syndrome.

[3] On this appeal, the plaintiff says that the trial judge failed to consider the evidence of certain lay witnesses and experts in reaching his conclusions. The plaintiff also makes three submissions challenging the propriety of the trial judge basing his conclusions on the view that the plaintiff had attempted to deceive the court. I have concluded, for the following reasons, that the trial judge did not err as alleged, and I would dismiss the appeal.

Background

[4] The plaintiff was 49 years of age at the time of the accident. She was married with two teenage girls. She had a successful career as an employee in the retail camera business, and eventually worked in her husband’s growing business called Bathrooms Plus. She managed one of the Bathrooms Plus stores for a period of time and was involved in various aspects of the business, including customer relations, bookkeeping, banking, invoicing and product ordering.

[5] The motor vehicle accident occurred on June 3, 2004, in Surrey, British Columbia. The plaintiff’s vehicle came to a stop at a controlled intersection where another car was stopped. The plaintiff’s car was then struck from behind as a result of the failure of the two vehicles behind her car (which were owned or operated by the defendants) to come to timely stops.

[6] The plaintiff’s case at trial was that her personality had significantly changed as a result of the accident and that she was not able to cope at work or at home. The defendants conceded at trial that the plaintiff had suffered mild to moderate soft tissue injury to her neck, post-traumatic stress disorder, depression and anxiety as a result of the accident. It was the position of the defendants that the adverse effects of the defendants’ negligence had resolved prior to the trial and that whatever physical or psychological problems the plaintiff was currently experiencing were not caused by the defendants’ negligence.

[7] The trial lasted for 20 days, and a total of 27 witnesses testified. The lay witnesses included the plaintiff, her husband, two employees of Bathrooms Plus (Arlie Clarke and Frank Scott) and the plaintiff’s former physician with whom she worked at a Greek school (Dr. Larigakis). The expert witnesses included a psychiatrist (Dr. Ancill), a neurosurgeon (Dr. Hunt), a neurologist (Dr. Grosch), a neuropsychologist (Dr. Kaushansky), a clinical psychologist (Dr. Prupas), the plaintiff’s general physician (Dr. Singh) and a forensic psychiatrist engaged on behalf of the defendants (Dr. Janke).

The Trial Decision

[8] In his reasons for judgment (indexed as 2007 BCSC 703), the trial judge found that the plaintiff’s car tapped the vehicle ahead of her very lightly before being struck from behind and that the “force applied to the plaintiff as a result of the collisions to her rear was actually very little indeed” (paragraph 40).

[9] After the trial judge agreed that the plaintiff’s injuries were at least as severe as conceded by the defendants (except that he subsequently disagreed with the label of “post-traumatic stress disorder”), he continued as follows:

[45] Having considered the whole of the evidence together I, the trier of fact, say that in this particular case the plaintiff’s case to the effect that she must be compensated for the results of the defendants’ negligence on the basis that on June 3, 2004 she suffered a traumatic brain injury – obviously a permanent injury – or, absent that, is and will be burdened with a bundle of ongoing symptoms that would not be her lot “but for” the defendants’ negligence on June 3, 2004 – label that bundle of symptoms either not at all, or “post-concussion syndrome” or “post-traumatic stress disorder” – turns on the extent, if any, to which I give weight to the relevant evidence of the following witnesses: the plaintiff, Dr. Ancill, Dr. Hunt and Dr. Grosch. I add that I am alive to the evidence and opinions of Dr. Singh, the plaintiff’s treating family physician. I mean no disrespect, but it is my opinion as the trier of fact that the crucial evidence in the plaintiff’s case is the evidence of the medical specialists just mentioned and not the evidence of Dr. Singh or the evidence of the psychologist Dr. Lorne Prupas. The latter is not a medical doctor. His “doctor” flows from his Ph.D. in the “Psychology of Education – Counselling Emphasis”. (Exhibit 4 Tab 5) He entered the case not as the result of a specific referral to him by Dr. Singh but by being brought on board by Dr. Kaushansky. Dr. Kaushansky is not a medical doctor. He is a Ph.D. in an “Interdisciplinary Ph.D. Psychology and Education” (Exhibit 4 Tab 4). He was brought into the case not by the plaintiff’s general practitioner but by the plaintiff’s counsel. (Exhibit 4 Tab 4 May 20, 2005 letter)

[10] The trial judge then considered the evidence of the plaintiff and the expert opinions of Dr. Ancill, Dr. Hunt and Dr. Grosch at some length. He concluded that the plaintiff’s testimony was unreliable. He rejected the opinion of Dr. Ancill that the plaintiff suffered from post-traumatic stress disorder. He refused to accept the opinion of Dr. Hunt that the plaintiff had suffered a brain injury because he was not satisfied that the plaintiff experienced a visual disturbance at the time of the accident. He refused to accept the opinion of Dr. Grosch that the plaintiff suffered post-concussion syndrome because he was not satisfied that the plaintiff had the constellation of symptoms she reported to Dr. Grosch.

[11] After reviewing the principles articulated in Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131, [1994] 1 W.W.R. 53 (C.A.), and applying them to the facts before him, the trial judge concluded that the defendants’ negligence had caused or contributed to “soft tissue injury and resulting pain, suffering, depression and anxiety which is with the plaintiff to this day” (paragraph 100) and that, with proper medication and exercise, “the plaintiff’s future is bright indeed with the overwhelming real and substantial possibility being that any significant problem will be short term in nature” (paragraph 121). He found that the plaintiff did not mitigate her damages as a result of her failure to “embark upon and maintain a structured course of exercise” (paragraph 107).

[12] The trial judge awarded $45,000 for non-pecuniary damages (after deducting $5,000 for the failure to mitigate), $10,000 as damages for loss of future earning capacity, $5,000 as special damages (after deducting $500 for the failure to mitigate) and $10,000 as damages for cost of future care. He refused to make an award for loss of past earning capacity.

Issues on Appeal

[13] The plaintiff puts forward the following grounds of appeal:

1. The trial judge failed to consider the evidence of four lay witnesses and three expert witnesses;

2. The trial judge acted inappropriately in finding that the plaintiff deliberately set out to deceive the court because:

(a) he did not confront the plaintiff during her testimony with the allegation that she was lying;

(b) he decided the case on an issue not raised by the parties and thereby improperly entered the arena; and

Discussion

1. Failure to Consider Evidence

[14] There is no dispute about the law relating to this ground of appeal. The plaintiff cites the following passage from R. v. Harper, [1982] 1 S.C.R. 2 at 14, 133 D.L.R. (3d) 546:

The duty of the appellate tribunal does, however, include a review of the record below in order to determine whether the trial court has properly directed itself to all the evidence bearing on the relevant issues. Where the record, including the reasons for judgment, disclose a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.

The appellant says that the reasons for judgment, and particularly paragraph 45, disclose that the trial judge disregarded the evidence of four lay witnesses and three expert witnesses.

[15] The trial judge stated in the opening phrase of paragraph 45 that he had considered the whole of the evidence. His statement is not conclusive and does not stand as a bar to a finding that he disregarded parts of the evidence. However, having made the statement, the trial judge cannot be found to have disregarded the evidence of a witness simply because he does not explicitly mention it in the reasons for judgment. It must be apparent from something else in the reasons for judgment that the trial judge did disregard the evidence of a witness.

(a) Lay Witnesses

[16] The appellant maintains that the trial judge disregarded the evidence of Mr. Vasiliopoulos, Ms. Clarke, Mr. Scott and Dr. Larigakis with respect to the change in the plaintiff’s personality after the accident.

[17] There is nothing in the reasons for judgment to demonstrate that the judge did disregard their evidence. To the contrary, the trial judge accepted in paragraph 120 that the injuries from the accident made the plaintiff surly, and it appears that he was relying on the evidence of the lay witnesses in this regard. What he did not accept was that the plaintiff had established “deep-seated, irremediable ‘personality change’”.

[18] In paragraph 45, the trial judge referred to the evidence that he considered crucial to the plaintiff’s claim that her injuries, including her personality change, were permanent. The testimony of these lay witnesses only went to the issue of whether her personality had changed as a result of the accident (which the trial judge appears to have accepted), and their evidence was not critical to the claim that the personality change was irremediable.

(b) Dr. Prupas and Dr. Kaushansky

[19] The plaintiff says that the qualifications of Doctors Prupas and Kaushansky were admitted at trial and that paragraph 45 of the reasons for judgment demonstrates that the trial judge disregarded their evidence for improper reasons.

[20] I do not interpret the comments in paragraph 45 as an indication that the trial judge disregarded the evidence of Doctors Prupas and Kaushansky or rejected their opinions in their entirety. The judge specifically stated that he was alive to the evidence and opinions of Dr. Singh, the family physician. He was also alive to the evidence and opinions of Doctors Prupas and Kaushansky, but did not consider their evidence and opinions to be crucial to the issue of whether the plaintiff’s symptoms were permanent in nature. The judge mentioned Dr. Prupas several times in the balance of the reasons for judgment and expressed the view that he was “not satisfied that [the plaintiff’s] depression is of the order, nature or kind that her psychologist Dr. Prupas (Exhibit 4 Tab 5 plus testimony before me) so readily accepts it to be” (paragraph 105). It is manifest from this last statement that the judge considered Dr. Prupas’s evidence and opinion because he disagreed with the doctor’s view of the extent of the plaintiff’s depression.

[21] The judge’s reference in paragraph 45 to the fact that Doctors Prupas and Kaushansky are not medical doctors was relevant to the issue of whether the plaintiff suffered a brain injury because psychologists are less qualified than medical doctors to diagnose injuries of an organic nature. In referring to how Doctors Prupas and Kaushansky became involved in the case, the judge was simply making the point that the plaintiff’s general practitioner, Dr. Singh, had not seen the need to involve psychologists in her treatment.

[22] A review of the opinions of Doctors Prupas and Kaushansky confirms that their opinions were not critical to the issue of whether the plaintiff’s injuries were permanent. Dr. Kaushansky wrote two opinion letters. In the first letter, he expressed a preliminary view after meeting with the plaintiff and reviewing the documents forwarded to him by the plaintiff’s counsel. He expressed the opinion that the plaintiff “has a significant degree of post-traumatic stress with a co-morbid depression” and recommended that she be seen by a clinical psychologist for treatment.

[23] In his formal opinion, Dr. Kaushansky expressed the following opinions:

In reviewing this case, it is my view that with this accident there began a cascade of events which included physical pain, diminished mood and subsequent cognitive inefficiencies....

… it is more probable that Mrs. Vasilopoulos’ symptoms are not referable to organic damage (that is, secondary to persistent neurological sequelae) but are due to factors of pain and a very altered lifestyle which have resulted in depression and a significant deterioration in her functional skills.

As is often seen in this patient group a “chronic loop” forms whereby factors of physical pain, diminished cognition and mood become intertwined and exacerbate each other.

* * *

If Mrs. Vasilopoulos’ constellation of symptoms persists, it is probable that her overall condition which will affect all aspects of her psychosocial functioning will wax and wane.

(Note – Although the plaintiff’s statement of claim and the trial judge’s reasons for judgment show the plaintiff’s surname as “Vasiliopolous”, there are variations of the spelling throughout other materials.)

[24] There is nothing in Dr. Kaushansky’s opinion that is inconsistent with the trial judge’s conclusion regarding the plaintiff’s injuries. Dr. Kaushansky expressed the view that it is more probable that the plaintiff did not suffer organic injury. Dr. Kaushansky did suggest that the plaintiff’s condition was chronic, but the judge accepted that some of her symptoms had persisted for a long time and were continuing at the time of the trial. What the judge did not accept was that her injuries were permanent in nature and not susceptible to improvement with proper exercise and treatment.

[25] Dr. Prupas’s formal opinion contained the following statements:

It should be noted that I am not an expert in the area of head injury and cannot comment on any organic brain damage as contributing to Ms. Vasilopoulos’ current symptoms.

* * *

Her posttraumatic stress response (given its duration) must now be viewed as chronic. My experience with such responses in my work with a large trauma caseload is that prognosis must be viewed as highly guarded, once the posttraumatic stress response is chronic .... As there has not been that much change in these, I must reiterate that it seems to me that the prognosis for recovery from the posttraumatic stress response remains highly guarded, at least from my experience of similar cases.

The same goes for Ms. Vasilopoulos’ depression....

Personality changes, as reported by others, appear persistent. In particular aggressiveness has been noted and, according to at least one expert in the area of organic brain syndromes, likely organic in nature. … This, too, contributes to a very guarded prognosis ....

I will defer to comments by experts with greater expertise in the assessment of cognitive function, and how deterioration in this area might affect future function.

... Again, given that treatment to date has not been all that successful in ridding Ms. Vasilopoulos of her m.v.a.-related psychological problems, and given the question about the organic nature of some changes, including personality changes that affect mood, it is my opinion that we cannot be optimistic, as to what can change, if anything, in terms of the chronic pain picture. In short, if it is unlikely that there will be significant change, in the foreseeable future, in terms of the psychological issues resulting from the m.v.a. (i.e., issues that have a bearing on the experience of chronic pain), then optimal coping with the chronic pain experience will be impaired, and this will likely impact functioning in all areas.

[26] It is apparent that Dr. Prupas’s opinion of a very guarded prognosis was influenced, at least in part, from his acceptance of another expert’s opinion that the plaintiff suffered an organic brain injury. Like Dr. Kaushansky, he viewed the plaintiff’s symptoms to be chronic, but potential for improvement still existed. As noted above, the trial judge did specifically deal with Dr. Prupas’s opinion regarding the plaintiff’s depression.

[27] The plaintiff also points to the fact that the tests administered by Doctors Kaushansky and Prupas had built-in features demonstrating that the plaintiff was not exaggerating her symptoms. This does not prevent the trial judge, after an extensive cross-examination of the plaintiff, from reaching his own conclusion about her veracity. Indeed, it is the duty of the judge to form his or her own independent assessment of the credibility of witnesses. This Court said the following about this point in Maslen v. Rubenstein, supra:

13 ... It is, moreover, unlikely that medical practitioners can answer, as a matter of expert opinion, the ultimate questions on which these cases often turn. The court must decide for itself the critical issues of credibility and the balance of probabilities between explanations for the plaintiff's condition. Views expressed by doctors on the plaintiff's reliability, truthfulness or motivation cannot be decisive, for the law requires that these matters be decided by the court itself, and that they be decided on the basis of the evidence given at trial, which is often more extensive than, and sometimes differs markedly from, that on which medical witnesses have formed their opinions.

[28] It was not necessary, in my view, for the judge to specifically address the tests administered by the doctors in his reasons for judgment or to reconcile his assessment of the plaintiff’s credibility with the conclusions reached by the doctors in that regard. The trial judge gave detailed reasons why he found the plaintiff’s testimony to be unreliable. He was not required to do more.

[29] The plaintiff relies on Loveridge v. British Columbia, 2007 BCCA 425, 70 B.C.L.R. (4th) 215, as a comparable case where a new trial was ordered because the trial judge had rejected a psychologist’s diagnosis of post-traumatic stress disorder on the basis that the plaintiff was not a credible witness generally and had not made reference to the evidence of the psychologist that the diagnosis was verified by the results of the psychological tests for trauma. In my opinion, Loveridge is distinguishable from the present case. Here, the trial judge did refer to the evidence of Dr. Ancill in rejecting his diagnosis of post-traumatic stress disorder, and he did not reject any of the experts’ opinions solely on the basis that he did not find the plaintiff to be credible generally.

(c) Dr. Janke

[30] The plaintiff also says that the trial judge failed to consider the evidence of Dr. Janke, the forensic psychiatrist engaged on behalf of the defendants. Her complaint is similar to the point raised in connection with Doctors Kaushansky and Prupas that the judge did not address the fact that the tests administered by them did not reveal an exaggeration by the plaintiff of her symptoms.

[31] The plaintiff points to the following exchange between the judge and Dr. Janke during his direct examination:

The Court: Okay, hang on a minute. Okay. And you said -- well, you said, in effect, that in your world, you don’t call people liars, you said that you accept that this is now real to her. Now, in my world, we do call people liars. So one alternative is that she’s making it up, right?

A Let me -- let me make sure I make myself really clear.

The Court: Yeah?

A Yes, it is possible. I would -- from -- from a psychiatric perspective, I would want a lot of, I was going to say evidence, but the right word is information before I would even throw that out there. What I mean was for Mrs. Vasilopoulos, her -- if we -- if we don’t consider that she is deliberately lying, that she simply made this up, that this is a memory, that, in fact, her mother died when she was a child and she’s felt abandoned and it’s been something that’s been percolating in her all her life, that when this connection is made between the accident and the loss of her mother, she then creates a memory, her mind creates a memory that says that’s what you thought about at the accident scene, and now she believes that to be true.

The plaintiff complains that the trial judge did not refer to this evidence and says that he improperly disregarded it.

[32] As I stated above, the judge was required to make his own independent assessment of the plaintiff’s credibility, and there was no need for him to refer to Dr. Janke’s views regarding the veracity of the plaintiff. In addition, the above exchange between Dr. Janke and the judge related only to a memory that the plaintiff recovered during her sessions with Dr. Prupas and not to her symptoms generally. While Dr. Janke may have felt that the plaintiff believed the memory to be true, he stated earlier in his testimony that memories recovered in therapeutic situations must be approached with extreme caution because they can be unreliable.

2. Finding on Credibility

(a) Confronting the Plaintiff

[33] The plaintiff maintains that the rule established in the case of Browne v. Dunn (1893), 6 R. 67 (H.L.) applies to trial judges as well as opposing parties. The rule is that “if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him” (at 70). The plaintiff says that, before determining that the plaintiff was lying, the trial judge was required to put that proposition to the plaintiff while she was testifying.

[34] The plaintiff cites no authority to the effect that the rule in Browne v. Dunn applies to judges. This is hardly surprising because such a rule would be antithetical to the role of a judge in Canada. In this country, we have an adversarial system, not an inquisitorial one.

[35] Such a rule would be unworkable with respect to judges in our system. Judges are required to be fair and impartial, and are expected to hear all of the evidence before making final decisions on the credibility of witnesses. They should not be required to confront a witness if they are concerned that there is any possibility that, after hearing all of the evidence, they may not accept all of the testimony given by the witness.

[36] The rule in Browne v. Dunn is not suited for application to judges. The rule stipulates that if the opposing party is intending to introduce evidence contradicting the testimony of a witness, such evidence should be put to the witness so that he or she will have an opportunity to provide an explanation. What is being suggested in this case is not that anticipated evidence be put to the witness, but that the judge should confront the witness with the possibility that the judge may conclude that the witness is not credible. That is not the rule in Browne v. Dunn – the rule does not require opposing counsel to confront a witness with the proposition that the witness is being untruthful before making submissions to the judge at the end of the trial that the witness should be found not to be credible.

[37] In addition, the rule in Browne v. Dunn has not been treated as an absolute rule. Evidence contradicting a witness’s testimony may be admitted despite a failure to put it to the witness, and the failure goes to the weight to be given to the evidence. This feature of the rule is not adaptable to judges.

[38] The plaintiff says the case of Volzhenin v. Haile, 2007 BCCA 317, 70 B.C.L.R. (4th) 15, is an example of what a trial judge is supposed to do in confronting a witness about whose credibility the judge has reservations. The ground of appeal in that case was that the plaintiff had not been given a fair trial because, among other things, “the trial judge intervened excessively, thus giving an inquisitorial aspect to the trial that detracted from the disinterested and impartial hearing to which he was entitled” (paragraph 14). In dismissing the appeal, this Court was not recommending the approach taken by the judge in that case. It simply held that the judge had not “improperly interjected himself into the hearing, or otherwise created an appearance of an unfair trial” (paragraph 25). Indeed, Volzhenin v. Haile illustrates the type of problem that could arise if judges were required to confront witnesses about their veracity.

(b) Entering the Arena

[39] The plaintiff does not complain that the trial judge entered the arena by unduly interfering in the examination of witnesses, as occurred in the two cases cited by her (Yuill v. Yuill, [1945] 1 All E.R. 183 (C.A.), and Jones v. National Coal Board, [1957] 2 All E.R. 155, [1957] 2 Q.B. 55 (C.A.)). Rather, the plaintiff’s complaint is that the judge decided the case on an issue not raised by the parties, namely, that the plaintiff lied to her caregivers and the court. Canada Trustco Mortgage Co. v. Renard, 2008 BCCA 343, is a recent example of a situation where a new trial was ordered on the basis that the judge decided the case on a theory of the evidence that had not been advanced by either party. This was held to be a violation of the audi alteram partem principle (i.e., the right of a party to know and respond to the case against it), thereby making the trial unfair.

[40] In my opinion, the credibility of the plaintiff was a threshold issue. Credibility of the parties is always in issue at a trial, particularly if they are cross-examined. This is particularly true when there is little or no objective evidence of continuing injuries in a personal injury case. A finding that the plaintiff’s testimony was not reliable did not constitute an unraised issue or a new theory.

[41] In the present case, the trial judge gave five examples of why he found the plaintiff’s testimonial reliability to have been undermined. In three of those examples, the judge specifically mentioned the cross-examination of the plaintiff, and it appears that one or both of the other two examples also involved her cross-examination.

[42] It is my view that the credibility of the plaintiff was an issue raised by the defendants through their cross-examination of her. The trial was not rendered unfair because the judge found her testimony to be unreliable and concluded that her portrayal of her symptoms to her caregivers and the court was not accurate.

(c) Reasonable Apprehension of Bias

[43] The Supreme Court of Canada extensively reviewed the topic of bias in R. v. S. (R.D)., [1997] 3 S.C.R. 484, 161 N.S.R. (2d) 241. The Court reaffirmed the test for apprehension of bias articulated in the following manner by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394, 68 D.L.R. (3d) 716:

… the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.”

As pointed out by Cory J. at paragraph 105, “bias denotes a state of mind that is in some way predisposed to a particular result”.

[44] There is nothing demonstrating that the trial judge was predisposed to the conclusion he reached. It is true that he made negative comments about the plaintiff in his reasons for judgment, but it is permissible for a judge to form a negative view of a party on the basis of the evidence introduced at trial. The essence of bias is a predisposition based on something other than the evidence introduced during the trial.

[45] The plaintiff has failed to establish that a reasonable, informed and objective person would have concluded that it was probable that the trial judge did not decide the case fairly as a result of a predisposition on his part.

Conclusion

[46] As I would not give effect to any of the grounds of appeal, I would dismiss the appeal.

“The Honourable Mr. Justice Tysoe”

I agree:

“The Honourable Madam Justice Prowse”

I agree:

“The Honourable Mr. Justice Chiasson”

Citation:	*Vasiliopoulos v. Dosanjh,*
	2008 BCCA 399