IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Abma v. Paul, |
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2008 BCSC 783 |
Date: 20080617
Docket: S76843
Registry: New Westminster
Between:
Debbie Elizabeth Abma
Plaintiff
And
Steven Albert Paul and Ronald Paul
Defendants
Docket:
M99005
Registry: New Westminster
Between:
Deborah Elizabeth Abma
Plaintiff
And
Tamara Brandy and Pauline Sylvia Brandy
Defendant
Before: The Honourable Madam Justice Gropper
Reasons for Judgment
| Counsel for Plaintiff |
R. Nairne |
| Counsel for Defendants Paul |
L.P. Stevens |
| Counsel for Defendants Brandy |
R. Brun, Q.C. |
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Date and Place of Trial/Hearing: |
November 6-10, 14, 20-24, 27-30, |
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New Westminster, B.C. |
Table of Contents
Paragraph
A. Introduction........................................................................................................................ 1
B. Issues.................................................................................................................................. 5
1. Liability....................................................................................................................... 5
(a) Facts................................................................................................................ 6
(b) Parties’ Positions on Liability.......................................................................... 15
(c) Decision on Liability....................................................................................... 18
2. Plaintiff’s Injuries.................................................................................................... 22
(a) Facts.............................................................................................................. 22
(i) Plaintiff’s Pre-Accident History........................................................... 23
(ii) Pre-Accident Health........................................................................... 32
(b) The First Accident.......................................................................................... 47
(i) Plaintiff’s Recollection........................................................................ 47
(ii) Evidence of Witnesses at the Scene................................................ 50
(iii) Emergency Room Physician............................................................. 54
(iv) Plaintiff’s Complaints after First Accident.......................................... 55
(v) Plaintiff’s Work after First Accident.................................................... 78
(vi) Other Incidents between First and Second Accidents...................... 88
(vii) Plaintiff’s Condition before the Second Accident............................... 94
(c) The Second Accident..................................................................................... 95
(i) Plaintiff’s Complaints after the Second Accident............................. 105
(d) Medical Evidence......................................................................................... 109
(i) Dr. K. Ng.......................................................................................... 109
(ii) Dr. T. Van Rijn.................................................................................. 117
(iii) Dr. R. Ancill...................................................................................... 122
(iv) Dr. F. Spellacy................................................................................. 148
(v) Dr. S. Cripps.................................................................................... 162
(vi) Dr. C. Jung....................................................................................... 164
(vii) Dr. J. Kelly........................................................................................ 169
(viii) Dr. H. Anton...................................................................................... 181
(ix) Dr. I. Schultz.................................................................................... 195
(x) Dr. K. Favero.................................................................................... 204
(xi) Dr. D. Smith..................................................................................... 214
(xii) Dr. E. Sinanan.................................................................................. 234
(xiii) Dr. M. Jones..................................................................................... 240
(e) Parties’ Positions on the Plaintiff’s Injuries................................................... 267
(i) Plaintiff’s Position............................................................................. 267
(ii) Defendants’ Positions...................................................................... 268
Defendants Paul.............................................................................. 268
Defendants Brandy.......................................................................... 269
(f) Decision on the Plaintiff’s Injuries................................................................. 270
(i) The First Accident............................................................................ 270
(ii) The Second Accident....................................................................... 311
3. Damages................................................................................................................ 313
C. Summary......................................................................................................................... 319
D. Costs............................................................................................................................... 321
[1] The plaintiff seeks damages for injuries which she sustained in two motor vehicle accidents. The two actions were heard together.
[2] The first motor vehicle accident occurred on November 14, 2001 at the intersection of Townline Road and Blueridge Drive in Abbotsford, B.C. (the “first accident”). The plaintiff was driving south on Townline Road. The defendant Steven Paul was driving a Chevrolet Pickup owned by Ronald Paul, east on Blueridge Drive approaching the intersection. The intersection is controlled by a four-way stop. Ms. Abma observed the stop sign and then proceeded through the intersection. Mr. Paul failed to stop at the stop sign on Blueridge Drive and struck the plaintiff’s vehicle on the passenger side.
[3] The second accident occurred on September 21, 2005 on the 3600 block of Clearbrook Road (the “second accident”). The plaintiff was driving north on Clearbrook Road. She changed from the centre lane to the curb lane as the defendant Tamara Brandy’s vehicle, owned by Pauline Brandy, was pulling out from a parking lot. Whether Ms. Abma struck Ms. Brandy’s vehicle or Ms. Brandy struck Ms. Abma’s vehicle is in issue.
[4] Ms. Abma seeks damages in respect of her injuries in both accidents. The most significant aspect of her claim is a mild traumatic brain injury which she says she suffered in the first accident and was exacerbated by the second accident. The defendants Paul assert that the plaintiff did not suffer a mild traumatic brain injury in the first accident. The defendants Brandy assert the plaintiff suffered soft tissue injuries as a result of the second accident and if the plaintiff suffered a traumatic brain injury in the first accident, the second accident did not exacerbate that injury.
1. Liability: Liability for the first accident is admitted by the defendants Paul. Liability for the second accident must be determined: were the defendants Brandy negligent?
2. Plaintiff’s Injuries: What injuries did the plaintiff suffer in the first accident? What injuries did the plaintiff suffer in the second accident?
3. Damages: What damages should the plaintiff receive?
4. Apportionment of Damages: How should damages be apportioned between the first accident and the second accident?
[5] Liability for the first accident is admitted by the defendants Paul. Liability for the second accident is in dispute.
[6] The second accident occurred on Clearbrook Road. The plaintiff and the defendant Brandy disagree about the time it occurred. The plaintiff’s evidence in this regard is equivocal: in her examination for discovery she stated that the accident occurred at about 3:15 p.m. as she was on her way to her daughters’ track meet which was scheduled to begin at 3:30 p.m. At trial she testified that the track meet started later than 3:30, though she did not adjust the time of the accident. Ms. Brandy said that the accident occurred at 4:00 p.m.
[7] The plaintiff was travelling north on Clearbrook Road in the centre lane. In the 3600 block of Clearbrook Road, on the eastern side, there is a parking lot entrance leading to, and an exit from, Clearbrook Elementary School. Around the area of the entranceway to the elementary school, the plaintiff moved her car to the right and changed into the curb lane travelling north. Ms. Abma said that she turned on her right signal to indicate her intention to move into the curb lane.
[8] Ms. Brandy was stopped at the elementary school parking lot exit waiting for traffic to clear in order that she could cross the northbound lane and proceed south on Clearbrook Road.
[9] The plaintiff does not recall the circumstances of the accident beyond her signalling to change lanes. She recalls that the traffic was “extremely congested” and that “there were cars everywhere”. She stated that there was a line of cars in the curb lane waiting to turn right into the elementary school parking lot.
[10] Ms. Brandy agrees with the plaintiff that the traffic was very busy. As a result, Ms. Brandy describes herself as having to “slowly inch my way out” of the parking lot. Ms. Brandy observed several cars lined up waiting to get into the entrance to the parking lot as she was seeking to exit. She observed a vehicle stopped in the southbound lane across from the parking lot entrance with its left turn signal activated, waiting to turn into the elementary school parking lot. Ms. Brandy says that the driver of the stopped southbound vehicle waved at her which Ms. Brandy interpreted as a signal “telling me to go”, that is, to cross the northbound lane and proceed southbound.
[11] Ms. Brandy says that as the first car waiting to turn into the parking lot started turning, she pulled ahead “just a little bit” in order to see behind the vehicles which were in the curb lane waiting to turn. Ms. Brandy says she double-checked to her right and then back to her left. She says she was stopped as she turned her head from side to side. Ms. Brandy says that she saw Ms. Abma’s vehicle coming towards her. There was no right signal blinking on Ms. Abma’s car. Ms. Brandy says the impact with Ms. Abma’s vehicle took place as Ms. Brandy was stopped and checking from side to side. Ms. Brandy states that Ms. Abma’s vehicle hit hers, the right side of the plaintiff's vehicle impacting the front of the Brandy vehicle and then scraping along the front of it.
[12] The damage to Ms. Abma’s vehicle was on the right passenger side. The rear door of that side was torn off.
[13] Linda Morgan was a pedestrian walking south along Clearbrook Road at the time of the accident on September 21, 2005. She intended to walk behind the Brandy vehicle and across the exit from the school parking lot. Ms. Morgan observed the Brandy vehicle and observed Ms. Brandy looking back and forth to the right and to the left, trying to get out of the parking lot from the elementary school to turn left and go southbound on Clearbrook Road. Unlike Ms. Abma and Ms. Brandy’s evidence, Ms. Morgan did not see vehicles waiting to turn right into the parking lot. She agrees that there was traffic, but further back from the parking lot entrance. Ms. Morgan saw Ms. Abma’s vehicle coming towards her with her signal light on indicating a lane change. Ms. Morgan testified that Ms. Abma was in the curb lane and had been traveling there for approximately 40 feet before the vehicles struck.
[14] Ms. Morgan saw Ms. Brandy look left and then look right and then her car started to move to exit the parking lot. Ms. Morgan says that Ms. Brandy ran right into the side of Ms. Abma’s vehicle. Ms. Morgan described the force of the impact as “hard.” It was her view that the Abma vehicle did not have any opportunity to avoid the Brandy vehicle as the Brandy vehicle pulled out from the school parking lot.
(b) Parties’ Positions on Liability
[15] The plaintiff asserts that the defendant Brandy, as a driver about to enter or cross a highway from a parking lot driveway, was obliged to ascertain that the highway was clear and to yield to traffic on the highway (s. 176(2) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318). The plaintiff asserts that when Ms. Brandy started to leave the driveway and enter the highway, the northbound traffic was blocked by cars in the curb lane that were turning right into the parking lot. The plaintiff asserts that she changed lanes before the school driveway, but even if she was at the school driveway, she was not in an intersection and therefore was entitled to change lanes when she did. The plaintiff relies on the evidence of the independent witness, Ms. Morgan. Ms. Morgan maintained that Ms. Brandy drove forward and hit Ms. Abma’s vehicle.
[16] The defendants Brandy says that Ms. Morgan’s evidence does not make sense. She is confused regarding distance and time. The most logical explanation is that of Ms. Brandy’s. There were a number of vehicles stopped in the northbound curb lane intending to make a right hand turn into the parking lot. Ms. Brandy’s vehicle edged forward so that Ms. Brandy could see around those vehicles when she moved into the curb lane. Ms. Brandy stopped. Ms. Abma passed the vehicles in the curb lane turning right and changed lanes suddenly into the curb lane colliding with the Brandy vehicle. The defendants Brandy argue that Ms. Abma was entirely at fault for the accident. The defendants Brandy rely on s. 151 of the Motor Vehicle Act, which provides:
A driver who is driving a vehicle on a laned roadway
(a) must not drive it from one lane to another when a broken line only exists between the lanes, unless the driver has ascertained that the movement can be made with safety and will in no way affect the travel of another vehicle …
[17] The defendants argue that Ms. Abma, in making a lane change, should have been aware of the danger she created for other vehicles in the circumstances of heavy traffic. They say that the damage to the Abma vehicle is consistent with the explanation of the event described by Ms. Brandy.
[18] I find that the plaintiff has proved that the second accident was caused by the negligence of Ms. Brandy. Both the plaintiff and Ms. Brandy described observing extremely heavy traffic in and around the school parking lot driveway that intersects Clearbrook Ro ad. Ms. Brandy’s version of events, that is, that she pulled out into the curb lane and stopped and that Ms. Abma drove into her vehicle as she changed lanes from the centre curb lane is, in my view, inconsistent with the damage which Ms. Abma’s vehicle sustained. Ms. Abma was travelling and if she were to hit Ms. Brandy’s car or to change lanes abruptly into Ms. Brandy’s vehicle then the damage to her vehicle would have been more to the front of the passenger side than the rear.
[19] Further, Ms. Brandy admitted that seeing around the cars in the curb lane attempting to enter the school parking lot was difficult and she had to move into the curb lane in order to accomplish that. Even if Ms. Abma changed lanes abruptly, it was Ms. Brandy who was crossing the line of traffic and who was entering the road from a driveway; in those circumstances she was required to yield the right of way to traffic on the highway. Whether Ms. Abma changed lanes in front of the driveway or before the driveway, when Ms. Brandy entered onto the road she did not yield the right of way to Ms. Abma. While Ms. Abma was required to execute her lane change with regard to the safety of other vehicles, that did not change the obligation of the driver coming onto the road to yield the right of way to approaching traffic.
[20] Finally, although Ms. Morgan appears to be confused about distances and time elapsed between her seeing Ms. Abma’s vehicle and the impact, she was certain in her evidence about her observations of Ms. Brandy checking to the left and then to the right and not rechecking the left before emerging from the driveway. It may be that Ms. Brandy was confused by the southbound driver turning left into the parking lot and her attention was focused on that driver. She may have wrongly interpreted that driver’s wave as a signal that it was safe to proceed. In that regard, if she relied on that signal, without checking again, she abdicated her responsibility to ensure that it was safe for her to leave the driveway to that southbound driver.
[21] I am thus satisfied that the liability for the second accident rests solely on the defendants Brandy.
[22] The plaintiff claims damages arising from both motor vehicle accidents. The most significant injury alleged is the mild traumatic brain injury which the plaintiff says was caused by the first accident and was exacerbated by the second. It is alleged that the plaintiff suffered other injuries in both motor vehicle accidents but they are minor compared to the brain injury. In order to determine whether the plaintiff suffered the brain injury, it is necessary to review the evidence regarding the plaintiff before the accidents, the circumstances of each accident, and the plaintiff’s conduct and activity after the accidents. Further, there was significant medical evidence called by the plaintiff and the defendants, addressing whether a brain injury occurred, and if so, the resulting damages, including general damages, loss of income both past and future, and cost of care both past and future.
(i) Plaintiff’s Pre-accident history
[23] The plaintiff is presently 41 years old. She was born and raised in California. She attended high school there and apparently was an above average student. She was engaged in numerous extra-curricular activities including being a member of the drill team, her youth group at church and student government. She began working as a retail sales clerk at the age of 14 years. By the time the plaintiff had graduated from high school she was managing a women’s clothing store and working 27 to 30 hours per week.
[24] At age 18, the plaintiff entered Trinity Western University in British Columbia. During university she was also involved in extra-curricular activities, as the US admissions representative, and as Vice President for the student body. In 1989, Ms. Abma graduated from university with a degree in business administration, with a special interest in sales and marketing. Upon graduation the plaintiff worked at Household Finance approving mortgages.
[25] Ms. Abma married her husband, Murray Abma, in 1989.
[26] In 1992, Ms. Abma worked part-time (20 hours a week) as an assistant manager for Northern Reflections. In 1993, Ms. Abma worked with Pastor Jamie McDonald as Children’s Ministry Director at the Fort Langley Evangelical Free Church. The Abma’s first child, a daughter, was born in February 1992. Their second daughter was born in December 1994.
[27] In 1996, Ms. Abma joined the Mennonite Central Committee, a non-profit charitable organization. She worked full-time developing “Above the Underground” which was a three-month customer service retail sales training program designed to enable youth to develop their job skills through work experience in a retail setting.
[28] While Ms. Abma worked at “Above the Underground”, she attended a three-day training program to gain more experience and skills. She became a trainer herself and she, along with Andrea Arnott, developed customer service and retail training programs. In 1998, Tourism BC hired Ms. Abma as a Superhost master trainer. In February 1999, Ms. Abma started her own consulting business, Accent Consulting Inc., with Ms. Arnott. From the time Accent was incorporated, Ms. Abma says that she was engaged in full-time employment and as a trainer. She was focused on the retail training market. She would conduct workshops and sub-contract them to others while she marketed herself and her company. Her goal was to become a featured speaker. In pursuit of that goal she attended Chamber of Commerce events, met with business people and engaged in marketing. She wrote articles for Retail BC.
[29] In May 1999, Ms. Abma gave birth to her third child, a son. In November 2000, she had another son.
[30] By January 18, 2001, Ms. Abma’s business partnership with Ms. Arnott dissolved. A dispute had developed regarding the amount of work which each was contributing to Accent. Ms. Arnott was questioning the accounting which the plaintiff performed for Accent. Ultimately, Ms. Arnott left the company.
[31] The evidence of witnesses who worked with Ms. Abma before the accident described her as outstanding among her peers for her willingness to volunteer, well organized and well spoken. She was able to take on multifaceted responsibilities and perform them with enthusiasm. As a master trainer, her employer testified that she had no shortcomings. Her coworkers were impressed at the plaintiff’s ability to multitask both as a mother and as a business owner. She was “dynamic”, “energetic” and “enthusiastic”. Her communication style was described by the operations manager for Retail BC as engaging, entertaining, quick and well received by her audience. That view of Ms. Abma was shared by her friends who socialized with her on a regular basis.
(ii) Pre-Accident Health
[32] When she was 10, the plaintiff had surgery on her right knee. At age 11, Ms. Abma had a bruised appendix which required surgery and resulted in her missing about one month of school. When she was 16, the plaintiff was diagnosed with Guillain-Barré syndrome which is a condition which causes partial paralysis of the limbs. Ms. Abma was hospitalized with this disease but she recovered before she began attending Trinity Western University.
[33] Ms. Abma had a lifelong eye problem known as strabismus. She has had five surgeries to correct it. The last one was when she was 19 years of age.
[34] Also at the age of 19, Ms. Abma was involved in a motor vehicle accident where she sustained injury to her hand which required carpal tunnel surgery. Ms. Abma did not have any persisting symptoms from that accident.
[35] In the 1990’s the plaintiff was diagnosed with Von Willebrand disease. This is a genetic bleeding disorder where an affected person has no, or inadequate levels of, protein for blood coagulation or clotting. The result is that the plaintiff bruises more easily. In addition, her recovery time is longer and more painful than that of an average person.
[36] As stated, Ms. Abma had two daughters in 1992 and 1994 respectively. She had no unusual pregnancy symptoms. The only complications of their birth were due to the Von Willebrand disease for which Ms. Abma was given extra clotting factors in order to avoid excessive bleeding. She did not suffer from post-partum depression.
[37] In 1996, Ms. Abma was involved in two motor vehicle accidents, one in April and the other in December. The plaintiff claimed damages as a result of her 1996 accidents. In respect of the April 1996 accident, the plaintiff claimed injuries to her right foot; to both knees; to her right hip; to her lower back; to her gallbladder which was removed; to her ribs, chest and sternum; to her shoulders; to both hands; and to her temporomandibular joint. She complained of heart pain and headaches. She claimed for scarring. With regard to her injuries from the December 1996 accident, the plaintiff claimed acceleration/deceleration to the neck, back and shoulders, headaches and shock. The actions were settled in the spring of 1999 for $100,000. This amount included a sum for future cost of care and domestic assistance.
[38] In September 1998, Ms. Abma underwent surgery for her left knee. Ms. Abma testified that she was able to resume working for “Above the Underground” and Tourism BC the day after her surgery.
[39] Following the birth of her third child in May 1999, Ms. Abma suffered from a post-delivery infection, claustrophobia and anxiety. None of these conditions, the plaintiff says, kept her housebound and she recovered in the normal course.
[40] In 2000, Ms. Abma began having problems with her left knee. She managed the pain with Tylenol 3 and sleeping medication and the use of a prescribed knee brace. In November 2000, Ms. Abma gave birth to her last child by emergency c-section.
[41] The medical records and the prescription report summaries issued by PharmaCare and Health Insurance BC demonstrate that between 1993 and the first accident, the plaintiff saw her family physician or specialist physicians approximately once per month, and frequently more often. The summaries describe the prescriptions which the plaintiff obtained from 1996 until just before the first accident in November 2001. In 1996, the plaintiff was prescribed approximately 900 Tylenol 3 and 380 Trazodone; in 1997, the plaintiff was prescribed approximately 500 Tylenol 3; in 1998, the plaintiff was prescribed approximately 850 Tylenol 3 and 150 Trazodone; in 1999, the plaintiff was prescribed approximately 400 Tylenol 3 and approximately 80 Ativan; in 2000, the plaintiff was prescribed approximately 290 Tylenol 3, 120 Trazodone and 60 Ativan. In 2001 up until the accident, the plaintiff was prescribed 330 Tylenol 3. There were several other prescriptions related to sinus infections, pain in her shoulder and sternoclavicular joint, infections related to pregnancy and delivery, and other miscellaneous prescriptions.
[42] Tylenol 3 is an analgesic medication containing the narcotic codeine. It is addictive. Trazodone is a sedative and anti-depressant. Ativan is for anxiety.
[43] Dr. Ng, Ms. Abma’s family doctor since 1990, provided evidence concerning the plaintiff’s condition before the first accident. From 1990 to 1996, he treated Ms. Abma for upper respiratory tract infections, irritable bowel syndrome and gynaecological issues. He testified that Ms. Abma was able to cope with her father’s death and had no difficulties post-partum with the delivery of her daughters. She showed no cognitive impairments either before or after her motor vehicle accidents in 1996. Dr. Ng was of the view that the April 1996 accident was more serious than the second 1996 accident. The second aggravated the plaintiff’s earlier physical injuries. However, Dr. Ng was of the view that Ms. Abma had fully recovered from the injuries sustained in the two 1996 accidents before the first accident in November 2001. Between the birth of Ms. Abma’s last child in November 2000 and the first accident in November 2001, Dr. Ng’s treated Ms. Abma for complications from her pregnancy including breast and c-section infections, post-partum anxiety and sleeping difficulties. Her post-partum depression resolved with prescriptions of Ativan and Trazodone.
[44] Before the first accident, Dr. Ng said that Ms. Abma did not demonstrate any cognitive or emotional problems, she was not treated for bladder problems and did not complain of any seizure activity.
[45] Murray Abma, the plaintiff’s husband, described his wife as healthy and active just before the first accident. Although she had health issues including Guillain-Barré and strabismus, none were debilitating. She recovered from the motor vehicle accident which she had while attending university, as well as from her 1996 accidents. While her pregnancies caused her some anxiety and claustrophobia, the symptoms never interfered with her work and Ms. Abma continued to work until shortly before she delivered each child.
[46] At the time of the first accident she was having difficulty with her trigger finger and was scheduled for surgery to correct it. The surgery did not occur because the first accident intervened.
(i) The plaintiff’s recollection of the first accident
[47] The first accident occurred in November 2001. At trial, Ms. Abma was able to recall events before the accident occurred but testified that she had a spotty memory of the events of the motor vehicle accident both at the scene and later at the hospital. Ms. Abma has provided fragments of her recollection of the first accident to various people including physicians and psychologists whom she has seen for treatment purposes, for independent medical examinations and for litigation purposes. She gave evidence in examination for discovery. Some of her memories may be derived from what others have told her about the accident while others are clearly from her own recollection, because only she would be able to recall them.
[48] From the various statements which the plaintiff has made, she can recall or has at one time recalled the following: she waited until a small boy started to cross the street and then she pulled into the intersection. She recalls having to go to the bathroom. She saw the defendant’s car briefly, coming from her right side but was unable to avoid the accident. She felt and heard the impact. She recalls Sharon Reimer, whom she knew, at her car window offering to call her husband, Murray. She recalls felling pain and having her left knee jammed under the steering wheel. Her pant leg was wet from spilled coffee. She saw John Neufeld, a family friend, and was relieved when she heard him say he would get Murray. She recalls Murray arriving at the scene shortly after and reassuring her that she would be alright and possibly kissing her on the cheek. She recalls the ambulance crew arriving quickly, putting something on her neck, placing her on a spine board and comforting her on the short ride to the hospital. She recalls speaking to them about her upcoming finger surgery and her current medications. At the hospital she dealt with a nurse whom she knew. She recalls the X-ray room and a Mickey Mouse poster on the wall. It saddened her because she had a trip to Disney World planned with her husband and daughters and was concerned that the trip might be cancelled. She had to urinate badly but had trouble using the bed pan. She remembers that she spent some hours at the hospital and went home with her husband. She was at home when her daughters came home from school. They were upset. One of her sons hit her. Her children showed her a teddy bear which her daughters told her had come from Mr. Paul.
[49] Ms. Abma does not recall hitting her head and if she did, how that occurred. She does not recall the deployment of the airbag, although photographs taken of the damaged vehicle show that it did.
(ii) Evidence of witnesses at the scene of the first accident
[50] The witnesses to the first accident, Shirley Reimer, the defendant Steven Paul and John Neufeld described the plaintiff as conscious, able to make eye contact with them, complaining of pain in her knee and responding appropriately to questions. None noticed any signs of trauma to the plaintiff’s head, nor did the plaintiff complain of head pain. Mr. Neufeld observed that the plaintiff appeared “dazed”: she was sitting in the driver’s seat with her hands on the steering wheel, looking straight ahead, though she recognized Mr. Neufeld, appeared to understand what he said to her and to be grateful when he said that he would go get her husband.
[51] The police attended at the accident and took photographs, one showing the plaintiff seated in the driver’s seat. The report makes reference to “soreness to the left leg/hip this date” but not to any loss of consciousness, head injury, head pain or confusion.
[52] The ambulance crew who attended the scene did not refer to any head injury signs or symptoms, but they recorded the pain in the hip and left knee, as well as the back. Laine Smith, one of the ambulance attendants, gave evidence that he did not observe any symptoms of a head injury. He assessed the plaintiff on the Glasgow Coma Scale at the scene. The Glasgow Coma Scale is used by emergency personnel to identify moderate and severe traumatic brain injury. The plaintiff’s score was 15 out of a maximum of 15, indicating full consciousness.
[53] Murray Abma arrived at the scene while the emergency crews were there. He describes the plaintiff as “confused”.
(iii) The emergency room physician
[54] The plaintiff was transported from the accident scene to the MSA hospital by ambulance. She remained in hospital for about five hours. While there she was assessed by the emergency room physician, Dr. Reginald Peters. He performed a standard physical examination, including a neurological assessment. He did not detect any signs of neurological injury or head trauma. The plaintiff did not complain of head pain. Dr. Peters recalls the plaintiff asking him to give her a prescription for Zithromax to treat her sinus infection.
(iv) The plaintiff’s complaints after the first accident
[55] Ms. Abma testified that in the days following the first accident she had headaches, dizziness, nausea and pain. She stated that she did not remember much about the first 24 hours after the accident but did recall feeling a “very large football sized feeling lump on the side of my left head.” The plaintiff explained that she likes to sleep on the left side of her body but she could not do so for several months. The pain in her head, the plaintiff described, was like a “vice headache and I felt like I was on a boat and everything was rocking back and forth”. She found that lights were too bright and noises were very loud. She felt sore in the areas which were covered by the seatbelt during the accident. The plaintiff had pain in her hip, at her back and tailbone, in her left knee, right foot and front pelvis. She said that she had difficulty holding her bladder.
[56] Dr. Ng was the first non-emergency physician to see Ms. Abma after the motor vehicle accident. He had the advantage of having been the plaintiff’s family doctor for about 10 years at that time. In her first visit to Dr. Ng, two days after the first accident, Ms. Abma arrived in a wheelchair. She complained of nausea, neck tenderness, clicking and pain over her right sternoclavicular joint, left thigh pain, stiffness in her left knee and bruising to various parts of her body. Dr. Ng diagnosed multiple soft tissue injuries to the neck, bruising and tenderness over the right iliac crest and tailbone area, tenderness to the left thigh and a limited range of motion in the left knee.
[57] On November 21, 2001, the plaintiff saw her dentist, Dr. Edworthy. His notes reflect “neck pain and dizziness”. There is no note of pain in her head or signs of a bruise to the left side of her head.
[58] On November 28, 2001, Dr. Ng saw Ms. Abma again. The plaintiff complained of forgetfulness and difficulty in word finding, irritability, tearfulness, feeling overwhelmed, difficulty coping with her schedule, and impatience with her children. He notes that after the motor vehicle accident, the plaintiff described herself as forgetting things and forgetting words in the middle of the sentence. The plaintiff told Dr. Ng she had lost consciousness at the time of the accident, she was unable to talk while observing the event, and she described an “out of body” experience. Dr. Ng noted “? -Length of time”. In that appointment, Dr. Ng made a provisional diagnosis of a closed head injury. He believed that Ms. Abma had suffered a concussion of some sort.
[59] Dr. Ng’s clinical note of that appointment does not mention any bruising or tenderness on the plaintiff’s head or any visible sign of head trauma. Dr. Ng said he examined the plaintiff for bruising during that visit and it is his practice to record all signs of injury in his notes. If the plaintiff had directed him to a bruise on her head, he would have recorded it. Dr. Ng said that when he is concerned about a closed head injury he does an inspection of the patient’s head and records any noticeable bruising or swelling.
[60] Murray Abma is the only witness who describes a bruise to the left side of the plaintiff’s head. He stated that he did not notice any discoloration. He felt her head and he thought there was some general swelling along that side. Mr. Abma also testified that the plaintiff reported tenderness when the area on the left side of her head was touched.
[61] The plaintiff, her husband and daughters planned a trip to Disney World in early December 2001. After consulting Dr. Ng, the plaintiff decided to go. However, the plaintiff says that she felt very confused throughout the trip. She could not go on the rides. She was experiencing pain in her head. The plaintiff describes it as: “everything was moving and scaring me and making me sick and I wanted to go in the bathroom all the time and throw up more”. The plaintiff states that most of the trip she stayed in the hotel and while there would get lost between her room and the pool.
[62] The plaintiff saw Dr. Ng again on December 13, 2001. His note of that appointment makes no reference to a bruise on the left side of the plaintiff’s head, nor discoloration or swelling. Dr. Ng decided to order a CT scan of Ms. Abma’s head although he states in his report of April 12, 2002: “I could not find any localizing neurological signs on her examination.” The CT scan report came back “normal”.
[63] During Christmas of 2001, the plaintiff was using a wheelchair. She says that she was having difficulty understanding what was going on. She found Christmas shopping complicated and confusing.
[64] At the next appointment, on January 2, 2002, Dr. Ng noted that the plaintiff was “still experiencing right sided headaches”. There was no mention of left side head pain or swelling.
[65] The first note of a lump on the left side of the plaintiff’s head is made by Dr. Saunders, a psychologist to whom Ms. Abma was referred by her then counsel, in February 2002.
[66] The plaintiff says that following the accident she experienced headaches of four types: pressure in the middle portion of the back of her neck; vice-like pressure to her temples; pressure pushing down on her head; and a hot sphere piercing through her head. The headaches have continued since the first accident and continue presently, although there was a decrease in their intensity in August 2005, which was short-lived due to the second accident.
[67] The plaintiff testified that she experienced her first seizure in November 2001 during the night. She stated that it felt like an earthquake and that she felt herself lying on the bedroom floor. She had lost the contents of her bladder and her bowels. The plaintiff reported an “out of body” experience to Dr. Ng on November 28, 2001, although his notes make no reference to a seizure condition. She did not report any seizure experiences to Dr. Saunders or to Dr. Van Rijn, a physiatrist whom she saw in April 2002.
[68] The plaintiff reported seizure activity to Dr. Ng in June 2002. She told Dr. Ng at that time that she was experiencing night-time seizures and that her husband had recorded one incident on video tape. She was also having seizures during the day.
[69] Murray Abma testified that he had witnessed several night-time seizures. He did not call an ambulance nor take his wife to emergency following any of the seizures, including the first. He explained that he had experience as a lifeguard when he was a teenager, and had some instruction about dealing with seizures; he knew that they were “not uncommon and … that the primary concern … is to prevent them from injuring themselves.”
[70] The plaintiff says that before she has a seizure in the daytime she has a sour metallic taste in her mouth and a sulphuric smell in her nose. The plaintiff does not recall her night-time seizures, but recalls waking up out of bed with urinary or fecal incontinence or both. She feels lethargic and sleepy the next day.
[71] The plaintiff has received treatment from Dr. Ng, Dr. Ancill, her treating psychiatrist whom she started seeing in April 2002, and Dr. Cameron, a neurologist to whom she was referred in October of 2002 for her seizures. Dr. Ancill prescribed Gabapentin 100 mg twice a day for her “jerky movements” in May 2002. An EEG was performed to confirm her seizure disorder and the results were normal. Nevertheless, Dr. Ancill did not rule out a seizure disorder because Ms. Abma continued to report nocturnal seizures. Dr. Ng increased the Gabapentin, as did Dr. Ancill, to the level of 400 mg three times per day in August 2002. When she saw Dr. Cameron in October 2002, he did not confirm the seizures, but prescribed Tegretol CR 200 mg at night. In October of 2003, Dr. Ng increased the Tegretol CR dosage to 400 mg at night after she reported another seizure associated with bladder and bowel incontinence. The Tegretol was increased to 500 mg in February 2004 after the plaintiff reported having had three seizures in the previous month. Dr. Cameron referred the plaintiff for an MRI which was performed in February 2004. The results were normal. The plaintiff takes medication which she describes as not having “cured the seizures” but as making her functional. She says that if she does not take the medication, the seizure activity returns. Since 2003, the seizure medications have controlled her daytime seizures.
[72] Ms. Abma testified that since the first accident, she has had extreme difficulties with sleeping and nightmares. Dr. Ancill prescribed Oxazepam in April 2002, which Ms. Abma found assisted her in sleeping well.
[73] Ms. Abma stated that within a few days of the first accident she experienced vaginal bleeding and bladder problems. The problem with the vaginal bleeding ceased after she had a hysterectomy in June 2003. The plaintiff describes the bladder incontinence as continuing to occur three to four times a day. She says that she uses at least five incontinence pads per day.
[74] The plaintiff claimed approximately $20,000 as special damages for the incontinence pads which she used up to the date of trial. The claim is based on a receipt dated October 30, 2006 for three boxes of pads at a cost of $18.91. The plaintiff says that she incurred this expense 18 times per month. The plaintiff did not provide receipts for the pads which she had purchased over the period. She explained that she would buy the pads along with her groceries and would throw out the receipts. The plaintiff revised her claim during the trial, to $2,850.
[75] The plaintiff described experiencing problems with her vision following the first accident. She said that it seemed like part of her vision at the bottom left had been cut off.
[76] She also experienced pain in her neck, left shoulder and knees after the first accident. The pain was continuous from that time until the second accident in September 2005. The pain was variable, depending on the level of activity which the plaintiff undertook. Her knee symptoms continued until she had surgery in September 2004. The relief only lasted until the second accident.
[77] The plaintiff describes feeling depressed. She considered that she was unable to care for her family properly. She had some trouble understanding things and she would blank out. She was fighting with her husband and considering running away to avoid being a burden on the family. In the summer of 2004, she prepared a letter to Mr. Abma and then ran away. She said that she was “walking to Mexico”. She got as far as the United States border and, at the suggestion of the border guard, walked home. The plaintiff also noticed a “drastic” change in her sex life and diminishment in her libido. She said that this was a change from her pre-accident character where she describes herself as a “very passionate woman”.
(v) The Plaintiff’s Work after the First Accident
[78] After the first accident, Ms. Abma continued to run her consulting business until she closed it in July 2004. The plaintiff says that she made certain adjustments to accommodate her injuries, particularly her traumatic brain injury. She brought in assistants to run workshops, which she had previously run by herself; she reduced the length of the workshops; she developed less new material and instead reworked old material; it took her longer to prepare material; she relied on assistance from Power Point and other aids; and she reduced her marketing efforts. The plaintiff testified that she hid her brain injury from her clients, as she was determined to overcome that injury and carry on with her business. She continued to work with her team, to grow her business and to write for Retail BC. She says that writing articles which would take her 20 minutes before the first accident took her three hours after the accident.
[79] In the period immediately following the first accident, the plaintiff was able to maintain email contact with her work contacts. She accompanied her emails with draft workshop ideas and continued to bill Tourism BC for marketing at the rate of $420 per week. She continued to do so until August 28, 2002. She conducted Superhost workshops and billed roughly 14 hours per week for this work, at $30 per hour. She executed a Tourism BC application for membership renewal for the period of April 1, 2002 to March 31, 2003 in which she represented that Accent could deliver 210 workshops for the following year. That was an increase in the number of workshops which had been performed in prior years. The plaintiff noted on her application that the number of workshops that could be delivered was a conservative goal. She executed a general service contract for Tourism BC on April 2, 2002 pursuant to which she was to provide delivery of front line management workshops and delivery of Superhost “train the trainer” workshops. On April 15, 2002, she executed a one-year licensing agreement to be a delivery organization for Superhost. In 2002, she conducted more workshops and seminars than she had done the year before the accident. She customized workshops throughout 2002. In 2003, the plaintiff provided other training proposals and performed custom workshops.
[80] The plaintiff said that her husband was assisting her in all her work activities. Mr. Abma agreed that he had assisted his wife before the first motor vehicle accident as well as after. He did not assist her in the creation of any written material though he did proofread her material from time to time. He did not increase his administrative work for Accent after the first accident.
[81] The billing records from Accent show that the plaintiff’s billings went on uninterrupted at a consistent level from before the accident to the middle of 2002. They recorded work at 14 hours per week. The plaintiff’s evidence at trial was that she was totally disabled for weeks after the accident.
[82] In the fall of 2003, Ms. Abma presented a workshop with Trish Loewen at Castle Fun Park. The plaintiff considered that her performance fell short of her standards. She says that she realized that because of her injuries and problems, which she could no longer ignore, she had to close her business.
[83] The financial status of Accent Consulting Inc. began to deteriorate soon after the first accident. In the financial year ending February 28, 2002, which included three months following the first accident, Accent Consulting Inc.’s revenue was $34,098, down from its 2001 revenue of $49,408. In 2003, the revenue for the company was $25,118. There are no financial statements for the year ending February 28, 2004.
[84] The plaintiff says that her attempts to continue to operate Accent Consulting Inc. demonstrate her unemployability. She was not employable elsewhere because she could not learn new information. She was able to do a few hours of volunteer work at her church and her children’s school but nothing involving more than menial tasks.
[85] Before the first accident, the plaintiff’s mother-in-law provided day care two days a week. Her neighbour also provided day care. The neighbour charged $35 per day. Ms. Abma stated that before the first accident, the availability of day care was sufficient to accommodate the plaintiff’s work.
[86] After the first accident, Ms. Abma maintained her role as the primary caregiver to her four children; the youngest was a year old when the accident happened. Her husband had returned to full-time work in construction in 2002, often working six days a week for approximately 12 hours per day. The plaintiff was and continues to be responsible for the home and the child-rearing.
[87] After the first accident, the plaintiff’s former counsel started paying a family friend, Sharon Lewis, $72 per day for child minding one to three times a week. Angela Fuhr performed child minding services following Sharon Lewis and charged $84 a day up until June 2004. Some of the claims for child minding coincide with days that her company’s invoices show that she was working and charging for her time.
(vi) Other incidents between the first and second accidents
[88] The plaintiff suffered a concussion and a mild traumatic brain injury when she fell on the ice in December 2004. Mr. Abma described that Ms. Abma was slow to respond and was not able to get up for a short period of time after the fall. Her speech was slow and she complained of head pain. She was crying and nauseated. Mr. Abma did not take the plaintiff to the hospital.
[89] In her examination for discovery of August 22, 2006, the plaintiff stated that she lost her balance and fell on her bum. She gave evidence that she was wearing a helmet. At trial, the plaintiff described her fall as one where she lost her balance, fell on her bum and hit her head. She agreed that she was not wearing a helmet.
[90] Shortly after the fall, the plaintiff reported pain on the left side of her head to Dr. Ng and he noted a “palpable haematoma on the plaintiff’s left occiput”. Dr. Ng diagnosed a mild concussion. The plaintiff reported to him after a short period of time that she had bounced back. She did not mention it again to Dr. Ng.
[91] The plaintiff and Mr. Abma saw Dr. Kelly on January 14, 2005, a few weeks following the fall on the ice. Neither the plaintiff nor Mr. Abma told Dr. Kelly about the fall on the rink.
[92] On June 2, 2005, Ms. Abma was involved in a motor vehicle accident in Seattle. She had driven her eldest daughter to the airport in Seattle and was driving home after dropping her off. She rear-ended another vehicle. She described the discussion with the driver of the vehicle which she hit. The plaintiff said she did not have any significant discomfort. When the plaintiff returned from Seattle, her husband took her to emergency to ensure she was not injured.
[93] Mr. Abma explained why he took Ms. Abma to the hospital after the car accident in June 2005 but did not do so after the skating accident in December 2004. After the skating accident, Mr. Abma explained, he knew the plaintiff had hit her head. He made sure that she was okay and did not have a bad concussion and that she was able to stay alert and awake. He described his experiences with emergency rooms as being ones where “you complain of a head injury, and then sit and wait for hours. The hospital then does X-rays of your neck and then releases you.” Mr. Abma did not think that attending the hospital after the skating accident was useful. He said “I don’t hold a tremendously high opinion at times of that [emergency] procedure”.
(vii) The plaintiff’s condition before the second accident
[94] According to the plaintiff, just before the second motor vehicle accident on September 21, 2005, she was suffering from the alleged effects of a brain injury. She says that she had seizures and problems with her bladder, knee, shoulder, and vision. Those problems she says existed and were symptomatic before the second accident occurred.
[95] The circumstances of the accident are described in these reasons under the heading “liability.”
[96] Ms. Abma states that she recalls events just before the second accident. She does not recall the collision. She does not recall Ms. Brandy’s vehicle or being approached by the female witness, Ms. Morgan. Ms. Abma states that she does not recall speaking to police officers, nor riding in the ambulance to the hospital. Neither does she recall much of the examination at MSA Hospital.
[97] Ms. Morgan was the first person to approach the plaintiff immediately following the accident. She described the plaintiff as being conscious. She said that the plaintiff remarked that she was driving a brand new car and that her husband was going to be mad, and that she asked Ms. Morgan to get her cell phone out of her purse and phone her husband, and provided the phone number. The plaintiff says she does not recall any of this. She recalls her son Nate, who was a passenger in the vehicle, telling her that she was “asleep for a while”.
[98] After the impact Ms. Brandy reversed her vehicle back into the parking lot and parked it. She got to Ms. Abma’s vehicle two or three minutes later. Ms. Morgan was already there. Ms. Brandy described Ms. Abma as unresponsive although she made eye contact with Ms. Brandy and then looked back straight ahead out of her front window.
[99] The plaintiff recalls being inside the ambulance and then being in the hospital. She does recall that information was exchanged between her and the ambulance crew, and she does remember asking what was wrong with her throat.
[100] She recalls feeling cold, confused and scared at the MSA Hospital. She remembers having a hard collar on her neck. The emergency room physician’s notes describe the plaintiff as being alert and oriented as to time, place and who she was, but the plaintiff says she was not alert; rather she was very confused and scared.
[101] Ms. Abma described having difficulty breathing at the hospital, like an “extreme asthma attack”. She also felt like she had the stomach flu and the contents of her stomach were being flushed out.
[102] The plaintiff saw Dr. Ng on September 26, 2005. She described to him the second accident of September 21, 2005. His notes record that she said that she was the driver in a new car, a Ford station wagon, which was “a day and a half old.” She was driving in the centre lane and signalled to go into the curb lane when a van came out from the school parking lot and hit her car on the right back passenger door. She told Dr. Ng that the impact pushed her car into the middle of the road. Her son Nate was in the front seat. She advised Dr. Ng that her vehicle was not driveable. She was taken to MSA Hospital by ambulance. She felt she could not talk. She had X-rays which did not disclose any broken bones, and had a hard collar placed on her neck. She was given a prescription for Tylenol 3. She said she had a hoarse voice after the accident and the left side of her neck was painful and interfered with her eating. Dr. Ng described observing soft tissue injuries to the left side of her head which Ms. Abma described as having hit the window, to her left shoulder and her left upper chest, and bruises to her left medial knee, right iliac crest, left temporal area and left palm. He determined that damage to her vocalization ability and a gastroesophageal reflux had resulted from the injury.
[103] Dr. Ng. described the closed head injury and associated sequelae as the most significant disabling problem that the plaintiff sustained. Dr. Ng’s note does not make any reference to post-traumatic amnesia or loss of consciousness following the second motor vehicle accident. The first reference to such a condition is found in Dr. Ancill’s note of November 8, 2005, where Dr. Ancill reported that the plaintiff “could recall the events that preceded the accident but had no recall of the collision itself”. The plaintiff estimated that she had a five-hour period where her post-trauma memory was discontinuous.
[104] The plaintiff advised Dr. Jung, her psychologist, that she did not remember the collision, but her next memory after that was of a lady talking to her.
(i) The plaintiff’s complaints after the second accident
[105] The plaintiff stated that she had reached a plateau in her health before the second accident, but the second accident represented a major setback to her. She began experiencing headaches which are debilitating and for which she takes migraine medication. The plaintiff says she felt even more lost and struggled in doing the simplest of tasks, such as putting the correct key in her front door lock, reading a restaurant menu or counting change. She had trouble recognizing people. She considered that her cognitive abilities became worse after the second accident.
[106] The plaintiff described experiencing mood changes after the second accident including feeling helpless and hopeless and struggling with suicidal thoughts. She considered that the second accident and the injuries which she sustained in it were more than her marriage could handle. She asked Dr. Jung to provide marriage counselling to her and her husband.
[107] The plaintiff’s friend, Cheryl Wiens, described Ms. Abma as having speech difficulties after the second accident. Ms. Wiens observed the loss of physical and emotional confidence in the plaintiff.
[108] Ms. Abma says that her current state is no better that it was immediately following the second accident. Her complaints remain the same, and there has been no reduction in the pain which she is experiencing. She continues to have the same symptoms that she had following both accidents.
[109] Some of the medical evidence provided by Dr. Ng is referred to above.
[110] Dr. Ng, in his medical report of August 26, 2006, describes the plaintiff’s soft tissue injuries from both accidents as taking longer than usual to resolve due her Von Willebrand disease, which reduces the ability of platelets to effect homeostasis at the injury site to minimize bleeding. When Ms. Abma sustains an injury, the site of the injury bleeds more than normal. Dr. Ng opines that the plaintiff gradually responded to physiotherapy and rehabilitation exercises and has been conscientious in working out at the gym. Her left knee contusion has caused continued medial knee aches which, when arthroscoped by Dr. Rickards on September 20, 2004, revealed diffuse grade two chondromalacic changes in the lateral tibia plateau. She did not have any other injuries to her meniscus or ligaments. At present the plaintiff has posterior left knee pain with increased workouts.
[111] Dr. Ng states in his report that the second accident caused contusion to her upper left chest and left anterior neck causing difficulty to phonate. She was cleared of any vocal chord pathology and received speech therapy at Surrey Memorial Hospital. Her gastroesophageal reflux has partially responded to medication and the plaintiff has been referred to Dr. Ross, a general surgeon, and is waitlisted for an endoscopy. The plaintiff has an ongoing soft tissue injury from the second accident in her right foot especially over her medial arch. X-rays of her right foot revealed no bony abnormalities.
[112] The plaintiff continues to have neurogenic bladder difficulties for which she has been prescribed Ditropan XL 15 mg daily.
[113] Dr. Ng says that the plaintiff continues to suffer from two types of headaches. The first a muscle contraction headache which she treats by taking a muscle relaxant and an analgesic. The second is more typical of a migraine headache which occurs two to three times a week. This is relieved by Topamax. After the second accident she developed a third type of headache with a sharp dagger-like quality over her right parietal scalp and a sensitive trigger point on her right parietal scalp.
[114] Dr. Ng describes the plaintiff’s seizures from her first accident as related to her concussion. The seizures are reasonably controlled on the medications Tegretol and Topamax. She has dizziness and vertigo also related to her head injury. Her post-concussion syndrome affects her daily life, and in Dr. Ng’s opinion the plaintiff has difficulty with organizing, prioritizing, concentrating and remembering. Dr. Ng considers that the plaintiff has a lack of insight into the dangers of housework and describes two events: the first where the plaintiff sustained burns to her hands after a dish exploded in her oven, and a second incident where she suffered burns to her chin from the moist heat from her dishwasher.
[115] Dr. Ng describes the plaintiff’s depression following the accidents as significantly affecting her life and her relationship with her spouse and with her children.
[116] In respect of the plaintiff’s prognosis Dr. Ng states:
Her prognosis is guarded. It is now four years ten months from her first MVA and twelve months from the second [at the time the report was prepared] and she is still significantly disabled. I do not think that she can return to her previous vocation of organizing and giving business seminars and she had to close her business since 2002. There are still a number of therapeutic options … that she would need and the final accounting currently is difficult.
Anticipated future treatment and costs would need to include some home help and continued management of her post concussion syndrome with its sequelae, continued treatment of her seizure disorder, migraine and depression, the further deterioration of her left knee with early onset of degenerative arthritis and future treatment, the treatment of her gastroesophageal reflux and the cost associated with a neurogenic bladder and accidental incontinence. Physiotherapy treatments would also be needed for the periodic exacerbation of her back, neck and sacroiliac pain.
(ii) Dr. T. Van Rijn, physiatrist
[117] The plaintiff saw Dr. Van Rijn at the behest of her then counsel. His examination and report to Ms. Abma’s counsel took place on March 12, 2002.
[118] In the section of his report entitled “Diagnosis and Causation,” Dr. Van Rijn states:
Ms. Abma suffered a head injury as a result of the [November 14, 2001] accident when she struck the left side of her head with subsequent bruising. This has resulted in some brain dysfunction.
[119] Dr. Van Rijn described the brain dysfunction as: incomplete recall of events on and around the date and time of the accident and for a subsequent period; changes in her cognitive functioning; difficulties with speech, articulation and word finding; problems with concentration and memory; difficulty with comprehension of complicated conversation; difficulty processing information, especially when processed in a rapid manner, or in the presence of distracting external stimuli; hyperacusis and photosensitivity; vertigo with sudden head movement; and vestibular-visual mismatch complaints.
[120] Dr. Van Rijn also diagnosed soft tissue aches and pains, particularly muscular symptoms in and around her shoulder girdle, and sensitivity over the sacroiliac joint and surrounding structures. He concluded that she bruised the rear surface of her kneecap and had some patellofemoral complaints as a result. The plaintiff also likely sustained a strain to her right ankle and foot and had laxity and pain associated with that strain. He concluded she had symptoms suggestive of thoracic outlet dysfunction in her upper limbs. He commented that the plaintiff had developed bladder instability since the accident. He concluded that because the plaintiff had some bruising across the abdomen, pressure changes in her abdomen may have resulted in some injury to the bladder. He suggested that frequent urination can be associated with head injuries (such as diabetes insipidus).
[121] Dr. Van Rijn examined the plaintiff’s cranial nerves II to XII, and concluded that they were entirely normal. Dr. Van Rijn did not record any seizure difficulties. Dr. Van Rijn saw the plaintiff on one occasion only.
(iii) Dr. R. Ancill, psychiatrist
[122] Dr. Ng referred Ms. Abma to Dr. Ancill in February 2002, following Dr. Ng’s diagnosis of a closed head injury. Dr. Ancill has been the plaintiff’s treating psychiatrist since April 2002.
[123] Dr. Ancill was a geriatric psychiatrist at St. Vincent’s Hospital in Vancouver before the hospital was closed. In 1998, he began to focus on the area of brain injury. He says that he diagnoses more than nine out of 10 patients referred to him by doctors or by lawyers representing plaintiffs in personal injury cases as suffering from a post-traumatic brain injury.
[124] In his clinical records for April 3, 2002 (the plaintiff’s first appointment), Dr. Ancill noted that the plaintiff said her memory was discontinuous for the 10 minutes following the accident. In his evidence at trial, Dr. Ancill stated that the plaintiff had told him “she could not remember anything for the first few minutes, which she thought was for about 10 minutes.” Three years later, Dr. Ancill obtained an estimate from the plaintiff of five hours of discontinuous memory. Dr. Ancill explained the discrepancy as resulting from his not asking the right questions of the plaintiff in April 2002. Since that time he has developed a line of questions which he considers better. He has based his new questioning on textbooks and other research that have come out since April 2002.
[125] During that first visit, which was of limited duration because of his commitments to other patients, Dr. Ancill saw the plaintiff for about an hour. Dr. Ancill diagnosed a brain injury upon his first examination of Ms. Abma.
[126] Dr. Ancill was cross-examined in respect of a proper neuropsychiatric assessment and he agreed that it requires a full and complete history of the patient’s condition before the injury, a careful review of the symptoms and systems, a detailed knowledge of prior and current medical problems, a history of early childhood illnesses, seizure disorders, previous traumatic brain injuries, hyperactivity, past medication and a history of medications leading up to the incident being considered, a family psychiatric and medical history, a full social history, and a review of school and occupational functioning. He agreed that he had not reviewed Ms. Abma’s full history and accepted the criticism of other psychiatrists, including Dr. O’Shaughnessy, referred to in the decision of Wedge J. in O’Ruairc (Guardian ad litem of) v. Pelletier, 2004 BCSC 1633, and that of Dr. Derreyk Smith in this action. Dr. Smith’s criticism, which Dr. Ancill accepts, is that Dr. Ancill’s note of April 3, 2002 is a brief record and did not meet the standard of psychiatric consultation reports acceptable in British Columbia. There is no full medical state examination, no section dealing with functional inquiry, past medical or psychiatric illness, and no use of a standard DSM-IV diagnostic discussion.
[127] When Dr. Ancill made his diagnosis of a traumatic brain injury, he had not read the ambulance records, the hospital records or Dr. Ng’s clinical records. He was aware that the plaintiff had a CT scan which did not disclose any abnormal findings. He did not know that Ms. Abma had a normal score on the Glasgow Coma Scale as assessed by the ambulance attendant at the scene of the first accident and he did not have any witness statements concerning the plaintiff’s level of consciousness at the scene.
[128] Ms. Abma reported nocturnal seizures to Dr. Ancill in May 2002. It was Dr. Ancill’s concern that the plaintiff was experiencing post-traumatic nocturnal epilepsy. The plaintiff continued to report the seizure activity to Dr. Ancill as well as reporting the findings of her treating neurologist, Dr. Cameron. Dr. Ancill was aware of investigations of the seizures by Dr. Jones, a neurologist who Dr. Ancill conceded was an expert in the field of seizure disorders, and of Dr. Jones’ opinion that the plaintiff did not experience epileptic seizures. Dr. Ancill was aware that Dr. Cameron, the treating neurologist, had some doubt about the diagnosis of the seizure disorder and had deferred to the expertise of Dr. Jones on the point. Dr. Ancill, however, believed and continues to believe that the plaintiff was and is having seizures. They did not occur before the first motor vehicle accident and are apparently improved when the plaintiff is prescribed anti-seizure medication, notably Gabapentin, in sufficient doses. Dr. Ancill conceded in cross-examination that the known side effects for that medication include dizziness, a decrease in motor coordination, nystagmus, and abnormal thinking. In spite of Dr. Ancill’s conclusion that the plaintiff suffered from a seizure disorder, he did not suggest to her that she stop driving.
[129] In his medical/legal report of November 10, 2006, Dr. Ancill summarized the plaintiff’s complaints: fitful sleep; nightmares, often about the accident; being labile, irritable, impatient, anxious, tense, nervous; becoming easily fatigued; poor concentration and attention; poor memory; dizzy spells; headaches; vocational impairment; social impairment; and low libido.
[130] Dr. Ancill saw the plaintiff after her skating accident in December 2004. He accepted her version of events including that she had a few seconds of post-traumatic amnesia but her memory was intact and continuous and after a few days the headaches associated with the fall had stopped.
[131] Dr. Ancill is of the view that the medications which he and other physicians have prescribed to the plaintiff were appropriate and effective. The medications have stabilized the plaintiff’s mood, reduced her headaches, eliminated the daytime seizures, and reduced the number of night-time seizures.
[132] Dr. Ancill was asked about the diagnosis of somatoform disorders. He stated that somatoform disorders can only exist where there is no underlying medical condition which explains the patient’s symptoms. Even if there is no underlying medical condition that does not necessarily mean that there is such a somatoform disorder. He referred to a study where a third of the patients who had been assumed to be suffering from somatoform disorders ultimately were diagnosed with a serious organic disease. Dr. Ancill added that the other indication that Ms. Abma does not suffer from a somatoform disorder is that she improved over time, which is not typical of somatoform cases.
[133] Dr. Ancill opines that the plaintiff has post-trauma seizure disorder. Dr. Ancill considers that the seizures do not have a psychological element, and do not disclose a conversion disorder. A conversion disorder is one that suggests physical illness occurs in the absence of demonstrable physical pathology and is produced unconsciously rather than deliberately. It is Dr. Ancill’s view that, if the plaintiff suffers from conversion disorder, that is a result of the brain injury which she suffered in the first accident and there is no alternative explanation. He is also of the view that the seizures which the plaintiff suffers from are epileptic seizures because non-epileptic seizures are not associated with the urinary or fecal incontinence which the plaintiff says she experiences.
[134] Dr. Ancill points out that post-traumatic epilepsy is a recurrent seizure disorder secondary to brain injury following head trauma; about 1% of patients who sustain a mild traumatic brain injury develop seizures; the risk of developing post-traumatic seizures in mild traumatic brain injury cases appears to increase over the first five years post-injury from 0.1% in the first year to 1.6% in year five; 50% of those who develop post-traumatic seizures will recover fully within ten years, and 25% have good control with medications; the etiology of post-traumatic seizures is thought to be an actual disruption of brain tissue; post-traumatic seizures may not be detected by EEG; and the odd smells which the plaintiff reports as associated with the seizures are common in simple partial seizures.
[135] Following the second accident, Dr. Ancill saw the plaintiff on November 8, 2005. He described her as having post-trauma stress symptoms resulting from her son being in the vehicle with her when the accident occurred. The plaintiff told Dr. Ancill that she could recall the events that preceded the accident but could not recall the collision itself. Her post-trauma memory was discontinuous for a period that the plaintiff estimated was five hours. Her voice was very hoarse and quiet. The plaintiff reported having another seizure since the accident.
[136] Dr. Ancill saw the plaintiff again on December 22, 2005. He reviewed the second accident circumstances and the plaintiff described a period of dense post-trauma amnesia with no recollection of the collision. Her post-trauma discontinuance of memory persisted for some hours. It was Dr. Ancill’s view that the plaintiff had sustained another significant concussive injury in the second accident.
[137] During this appointment, Dr. Ancill went over the post-concussion checklist as well as the Rivermead Head Injury checklist and the neuropsychiatric interview.
[138] Dr. Ancill states:
She had clearly deteriorated in many areas since the last MVA in September of 2005… She had a worsening of her post-concussion syndrome as she did sustain a significant closed head injury in this latest MVA. Her [post-traumatic stress disorder] symptoms, depression and pain were also all worse. Her sleep was much worse so I changed the Oxazepam to Temazepam 30 mg qHS. I have changed the Topamax to 100 mg BID as she was having trouble remembering what to take and when. I also increased the Effexor-XR to 225 mg a day.
[139] The last examination before the trial commenced occurred on August 17, 2006. The medications the plaintiff was taking at that time included: Carbamazepine-CR 600 mg twice daily; Topamax 250 mg twice daily (increased by Dr. Kelly, a neurologist in the USA); Effexor-XR 75 mg in the morning and 150 mg in the evening; Domperidone 20 mg twice daily; Ditropan-XL 15 mg in the evening; Prevacid 30mg twice daily; Ibuprofen 800mg twice daily; Oxazepam 45mg at bedtime; and Flexeril 10mg at bedtime.
[140] Under the heading “Summary and Conclusions”, Dr. Ancill opines that Ms. Abma suffered a significant closed head injury and concussion in both accidents in question, based on the history which was given to him and the records of reports he reviewed. He cites the following reasons:
1. No recollection of either collision.
2. A period of unawareness followed by a prolonged period of discontinuous memory.
3. Initial symptoms of a concussive injury.
4. The emergence of a later post-concussion syndrome.
[141] Dr. Ancill states that a concussion is caused by diffuse damage to nerve cells and fibres, which Dr. Ancill believed the plaintiff’s brain experienced with each accident.
[142] The plaintiff suffers from more than one syndrome, according to Dr. Ancill, and it is always difficult to separate the various symptoms into their component diagnoses. He states:
Depression and chronic pain can produce a variety of cognitive, functional and emotional symptoms and also include the most likely persistent features of a mild brain injury – headaches, irritability, intolerance of stress and fatigue. Mrs. Abma does have chronic pain and a relapse of her prior depressive illness.
[143] Dr. Ancill provided the following opinions in his report:
1. It is my opinion that the persistent complaints and functional impairments suffered by Mrs. Abma are a direct result of the motor vehicle accidents in which she was involved in 2002 and 2005.
2. These persistent problems are identified in the body of this report and then documented in other clinical records and reports and confirmed by Mr. Murray Abma.
3. It is my opinion that Mrs. Abma suffered a significant concussive injury in both accidents, and developed a post-concussion syndrome – now persistent type. I would estimate the severity of her brain injury as mild. However, Mrs. Abma has indicators of a poor outcome – she is female, psychiatric problems have emerged and she has dizziness. Furthermore, by the time of the September 2005 MVA, she had two prior concussive injuries and the deleterious effects of trauma to the brain are accumulative.
4. It is my opinion that Mrs. Abma suffers from a personality change due to a general medical condition (mild TBI-aggressive type) and this is a direct consequence of her brain injuries.
5. It is also my opinion that Mrs. Abma suffers from a pain disorder with psychological factors associated with a general medical condition and this relates to her headaches and other chronic pain complaints that follow the accidents in question. I have referred to other experts to clarify this.
6. It has been my opinion for some time and remains so, that Ms. Abma has post-trauma seizure disorder…
7. Further, it is my opinion that she continues to suffer from a number of cognitive, neuropsychiatric, functional and emotional deficits that derive from this cluster of post MVA syndromes. Given the complexities of her post MVA problems, it is not always possible to specifically attribute each symptom to each specific diagnosis and that many of her complaints have contributions from more than one etiology. But for the accidents in question, Mrs. Abma would not be suffering from these and she has a clinical and functional decline since the accident in September 2005. It remains premature to establish her ultimate prognosis at this time as the second accident occurred less than a year ago [from the date of the report] but her prognosis is likely poor.
8. It is my opinion that Mrs. Abma will continue to have significant disruption of her life and her ability to work is permanently compromised. She is struggling with the demands of her family duties and personal life and will need ongoing and intensive support and counselling beyond her medical and psychiatric treatments.
[144] In cross-examination, Dr. Ancill was asked about the plaintiff’s pre-existing psychiatric diagnosis. When he wrote his opinion he stated that the plaintiff had no prior psychiatric history at p. 8 while at p. 40 of the opinion he states: “Mrs. Abma had prior psychiatric history and this represents a pre-existing vulnerability to any brain trauma she later suffered”. Dr. Ancill agreed that he had overstated the plaintiff’s prior psychiatric history at p. 40.
[145] Dr. Ancill was not aware of the plaintiff suffering any post-partum depression, nor that she was treated with medication for anxiety the year before the accident. He was not aware that the plaintiff was on pain medications for five years before the accident.
[146] Dr. Ancill agreed that his history did not reflect those facts and had he done a full review, he might have learned that the plaintiff had a history of anxiety, depression and chronic pain syndrome which required extensive treatment with narcotic medications. He learned about these features of the plaintiff’s history when counsel for the defendants Brandy brought it to his attention in cross-examination.
[147] He was also asked in cross-examination about the evidence of the eyewitness, Ms. Morgan, regarding the conversation she had with the plaintiff immediately following the collision, that the conversation included the plaintiff explaining that her car was brand new, that her husband was going to be upset, that she asked Ms. Morgan to get her phone out of her purse, and that she gave Ms. Morgan her husband’s phone number. Dr. Ancill agreed that while such a conversation is not inconsistent with a concussion, it suggests one milder than the more severe injury about which Dr. Ancill opined in his medical/legal report.
(iv) Dr. F. Spellacy, psychologist
[148] Dr. Spellacy, a psychologist, assessed the plaintiff on February 11 and 12, 2003. He administered several psychological tests.
[149] Dr. Spellacy accepted the diagnosis by the plaintiff’s physician of a closed head injury, possible seizure activity, chronic pain and post-concussion syndrome. He described the plaintiff’s complaints as at February 2003 as: distractibility; reduced comprehension; word finding difficulty; reduced organizational skills; seizure-like episodes (improved, but not controlled, with medication); headaches; and pain in her neck and back.
[150] Dr. Spellacy’s neuropsychological test results showed a possibly decreased intelligence score compared to the pre-injury estimate. There was evidence of a weakness in working memory, poor auditory attention and concentration, poor auditory information processing speed and poor visual organization. Dr. Spellacy noted that during the assessment Ms. Abma had marked difficulties finding words during spontaneous speech and on one occasion appeared to be unable to follow simple directional instructions.
[151] It was Dr. Spellacy’s conclusion that the plaintiff made a good effort during her assessment; there was no indication of an attempt to amplify her symptoms of cognitive deficits or to exaggerate the symptoms of emotional distress. The testing showed that the plaintiff attempted to minimize and deny such symptoms.
[152] Dr. Spellacy’s personality testing resulted in symptomatic patterns consistent with severe depression, post-traumatic stress disorder and a degree of difficulty in thinking which was consistent with cognitive weakness.
[153] Dr. Spellacy concluded that the plaintiff was suffering from psychological turmoil which was sufficiently severe to affect her score on neuropsychological tests. The level of distress, in Dr. Spellacy’s opinion, did not account for the extent and pattern of her deficits. The pattern of neurological test results was consistent with a diffuse brain injury which Dr. Spellacy attributed as likely being caused by her November 2001 injury, “as such problems are not reported as prior to that injury”. Dr. Spellacy describes the plaintiff pre-injury as:
This highly motivated woman was able to continue functioning as a self employed entrepreneur, a wife and mother. Since that injury, she has not been able to maintain her previous work load and, despite a marked reduction in her professional activities, she continues to experience difficulties in her roles as wife and mother.
[154] Dr. Spellacy concluded that the plaintiff appeared to be motivated to pursue rehabilitation and to resume her pre-injury level of involvement in work and family. It was Dr. Spellacy’s view that the plaintiff would benefit from psychotherapy and cognitive rehabilitation as well as occupational therapy. Dr. Spellacy recommended that Ms. Abma be reassessed after a period of successful psychotherapy to determine whether there was any possible residual mental impairment which was currently being masked by her psychological state.
[155] The plaintiff attended a follow-up assessment with Dr. Spellacy on June 11 and 12, 2006. She drove from her home to Dr. Spellacy’s office in Victoria for the testing. Dr. Spellacy could not rely on the results of those tests because the plaintiff’s responses did not pass the tests’ validity scores. No report was prepared of that testing. Dr. Spellacy testified the results for the second testing caused him to be concerned about the validity of the testing that he performed on the plaintiff in February 2003.
[156] One test which was performed in the 2006 assessment was the Trail Making Test Part B. In the 2003 testing, the plaintiff scored in the 80th percentile. In the 2006 testing, her time to complete was three times what it had been in 2003 and the plaintiff made more errors. In respect of the Victoria Symptoms Validity Test the plaintiff’s answers in 2003 are within the normal limits of the test. The test is designed so that individuals with severe brain injuries will still get 24 out of 24 on the easy portion of that test. The plaintiff got 24 out of 24 in the easy portion of the test in 2003 but only 9 out 24 on that section in 2006. Dr. Spellacy explained that the test was designed so people who were quite impaired would do well on it, thus the test is “basically to catch people who do poorly on it”.
[157] Dr. Spellacy agreed that one explanation for the plaintiff’s poor performance was that she intentionally tried to do badly, or she was confused or inattentive to the task or she responded randomly. Another explanation was that the plaintiff was not making a good effort. Dr. Spellacy agreed that a fair interpretation of the plaintiff’s performance in 2006 is that she didn’t “give a damn” or was trying to do badly. Her inconsistent responses meant the testing was invalid.
[158] Dr. Spellacy referred to other testing problems: in 2003 the plaintiff said she had a right ear preference and in 2006 she said it was a left ear preference. Even with an organic brain injury the expectation of the test is that the response will be consistent. Dr. Spellacy agreed that one does not expect deterioration over time, particularly, in this case, where the second accident was considered to be less severe than the first.
[159] Dr. Spellacy agreed that it was Ms. Abma’s habit to link various ailments to her 1996 motor vehicle accidents, as she is doing with her 2001 and 2005 motor vehicle accidents. He agreed that the plaintiff could be displaying a somatoform disorder which is consistent with such a linkage. Dr. Spellacy explained that a somatoform disorder is usually called a “conversion reaction”, where the person’s physical complaints arise primarily from psychological origins.
[160] Dr. Spellacy was asked about the MMPI-2 Symptom Validity Scale. He described the “Fake Bad scale” which was developed by Dr. Lees-Haley. Dr. Spellacy described this test scale as “pretty controversial” although, he agreed, there appears to be recent support for its use.
[161] The Fake Bad scale is a supplementary scale that has been designed to detect over-reporting of physical complaints and symptoms, relative to objective observations. It goes up in relation to two scores as test-takers describe their physical complaints on scale 1 and scale 3. Scale 1 is formally called the Hysteria Scale, and scale 3 is referred to as the Hypochondriasis Scale. If the person completing the test has high T scores on scales 1 and 3, Dr. Spellacy agreed that somatic malingering should be considered. Where the T scores on those scales are above 80 and produce a score on the Fake Bad scale which is above 28, somatic malingering should be considered. Dr. Spellacy stated that a Fake Bad scale score greater than 30 is very unusual.
(v) Dr. S. Cripps, urologist
[162] Dr. Cripps was the plaintiff’s treating urologist. She saw the plaintiff on April 5, 2002. In that visit, the plaintiff complained of urinary frequency, urgency and incontinence. Dr. Cripps performed an abdominal exam, with normal results and no palpable masses for organomegaly or enlargement of the liver.
[163] Dr. Cripps concluded that Ms. Abma’s symptoms suggested a neurogenic bladder, which is a pathological abnormality of the bladder filling and/or voiding, resulting from a neurologic injury. Dr. Cripps did not address whether the plaintiff’s neurogenic bladder was caused by the first accident.
(vi) Dr. C. Jung, psychologist
[164] Dr. Jung is a clinical psychologist whose practice involves mainly the treatment of patients with traumatic brain injury and the psychological problems relating to that injury. He first met with the plaintiff in July 2003 and continued to see Ms. Abma regularly.
[165] Dr. Jung did not make any diagnosis of any brain injury. He relied on that diagnosis from the other medical experts.
[166] Dr. Jung noted an improvement over the period that he saw Ms. Abma up to June 2004 when he saw a significant deterioration in her psychological condition. Dr. Jung concluded that the deterioration was due to intensification of work pressure and medical problems requiring surgery. Dr. Jung opined in his report of September 5, 2006 that:
The strain of her work, her health problems, and trying to cope with home and her children resulting in her depression intensified. There was one incident where she attempted to run away. She reported that she was feeling suicidal. She eventually stabilized through medication. Subsequent to this, Ms. Abma focused on just being more effective as a mother and a housewife.
[167] Ms. Abma’s sessions with Dr. Jung were reduced to an as-needed basis from June 2004 until she resumed regular sessions in April 2006. At that time, Ms. Abma described the circumstances of the second accident, and told Dr. Jung that she had no memory of the event until she recalled a lady talking to her. Dr. Jung concluded, based on his discussion with the plaintiff, that there was deterioration in her physical, cognitive and emotional symptoms. Her throat hurt and she was experiencing some muscle damage. She told Dr. Jung she had required language and speech therapy to help her talk.
[168] The plaintiff also described an increase in her marital problems. Dr. Jung provided marital counselling. He considers the counselling achieved some initial stability but the marriage is extremely fragile. Dr. Jung considers, as of September 2006, that the plaintiff has an ongoing need of rehabilitation to maintain her current level of functioning and to prevent further deterioration; she requires an updated occupational therapy assessment which would detail the extent of her functional limitations in the home and community; she requires ongoing psychiatric treatment and psychological intervention for an indefinite period. She also requires additional sessions in marital counselling. Dr. Jung suggests that there is a risk of marriage breakup which is greater than it would have been had the two accidents not occurred. He considers that if the marriage should dissolve, the level of service required for Ms. Abma would have to be intensified. She would also require support in the home situation if her husband’s assistance is not available to her.
(vii) Dr. J. Kelly, neurologist
[169] At the request of plaintiff’s counsel, Dr. Kelly saw the plaintiff for a consultation on December 8, 2003. Dr. Kelly is an academic neurologist in the department of neurology at the University of Colorado School of Medicine where he teaches medical students and residents, engages in clinical research and sees patients with neurological concerns. His academic focus has been on traumatic brain injury with a specific interest in mild traumatic brain injury.
[170] Dr. Kelly interviewed and examined Ms. Abma, accompanied by her husband Murray Abma. The plaintiff described to Dr. Kelly what she was able to recall of the accident of November 14, 2001. Mr. Abma advised Dr. Kelly that he arrived at the accident scene about ten minutes after the accident had occurred. He described Debbie as appearing awake but “not really there mentally”. He said that in the emergency department he thought that the plaintiff seemed impaired and did not comprehend what was going on.
[171] Ms. Abma advised Dr. Kelly that she had a left sided head/scalp bump and tenderness in the parietal region of her head, such that she could not sleep on the left side of her head for months. She had headaches and pain in that part of her head as well as other pain which she described to Dr. Kelly. The plaintiff described her bladder frequency, urgency and dribbling.
[172] Dr. Kelly formed the impression that the plaintiff had sustained a concussion with amnesia in the first accident and that she subsequently developed post-concussion syndrome.
[173] Dr. Kelly performed a mini mental status examination and a standardized assessment of concussion. He examined cranial nerve IV and he found evidence of right cranial nerve palsy. Dr. Kelly testified that it was not uncommon for individuals with concussion to develop such a condition. It can also occur without a traumatic brain injury simply from a stretching injury that occurs bio-mechanically. Dr. Kelly explained that cranial nerve IV palsy is frequently missed by ophthalmologists and opticians. Dr. Kelly found the palsy each time he examined the plaintiff.
[174] Dr. Kelly concluded that the cranial nerve IV palsy in the plaintiff’s left eye related to a blow to the plaintiff’s head during the first motor vehicle accident. Other physicians, including neuro-ophthalmologist Dr. Duncan Anderson, neurologist Dr. Cameron and Dr. Jones and three physiatrists, Dr. Chu, Dr. Anton and Dr. Van Rijn, as well as an ear, nose and throat specialist, Dr. Sinanan, examined the plaintiff’s cranial nerves following the first motor vehicle accident and found no evidence of damage to the fourth nerve.
[175] Dr. Kelly also found objective signs of a neurological injury in his examination of the plaintiff’s back. He could therefore not rule out that the plaintiff suffered a spinal cord injury due to a positive wheal and flair test. Both the cranial nerve palsy and the positive wheal and flair test related, in Dr. Kelly’s view, to the incontinence which the plaintiff experienced after the first accident and the diagnosis by Dr. Cripps of a neurogenic bladder.
[176] Dr. Kelly testified that the plaintiff’s treating neurologist, Dr. Cameron, would be in a better position to assess the plaintiff’s seizures than Dr. Kelly would, but noted that Dr. Cameron continued the plaintiff on anti-seizure medication because the plaintiff appeared to respond to it. When he prepared his medical report, Dr. Kelly had not seen the videotape of the plaintiff’s seizure recorded by her husband in June 2002.
[177] Dr. Kelly referred to the concussion which occurred while the plaintiff was skating in December 2004, but states “there are no hospital records and there was apparently no emergency room care at that time. She had a headache and some degree of post-traumatic amnesia but recovered from that particular event”.
[178] He also refers to the motor vehicle collision of June 28, 2005 in Seattle and opines: “another motor collision on 06/28/2005 may have aggravated some orthopaedic injuries and produced chest pain, but there is no evidence that I can see of a concussion at the particular time”.
[179] Dr. Kelly considered that the plaintiff suffered a concussion in the second accident.
[180] Dr. Kelly provides the following opinions in his report:
1. It is my opinion that Debbie Abma sustained a concussion without loss of consciousness in a motor vehicle collision on 11/14/2001. She has suffered a variety of neurocognitive and behavioural problems as a result of this injury. She is currently under the care of physician treating her for these problems which were aggravated by a probable concussion in another motor vehicle collision on 09/21/2005.
2. Her ongoing problems related to sleep, day to day functioning in a household setting, her loss of her occupation and changes in her social abilities are related to these motor vehicle collisions.
3. The sleep disturbance she experiences is due primarily to the concussive effect of the original injury which was later aggravated. Bodily pain and discomfort certainly play a role also in disturbing her sleep. The nocturnal seizures which are still apparent occasionally occur and no doubt also disrupt normal restful sleep.
4. The neurogenic bladder with frequency and dribbling incontinence may be related to the traumatic injury, but I cannot rule out the possibility of spinal chord involvement with a stretch or compression/concussive injury to the chord. Less likely would be some herniated disk in the region of the thoracic spinal chord. Additional investigation in this region with an MRI scan of the thoracic spine would be warranted.
5. The seizures typically seen are nocturnal, with possible complex partial seizures at various times have been reported in the notes, and are also a consequence of the concussion she sustained on 11/14/2001. These have come under better control but are incompletely controlled at present with medications.
6. The right cranial nerve IV palsy which I have seen each time on examination is directly due to the closed head injury she sustained on 11/14/2001. This cranial nerve abnormality adversely affects eye movements when looking downwards or converging on near objects. This adversely affects her mobility, easily produces a sense of disorientation and ‘wobbly instability’ when standing and looking downward or when walking and looking downward. Given that this injury has not improved over nearly five years, it can be considered permanent.
7. While it is possible that improving Debbie’s sleep and seizure control can improve her day to day life experiences and improve her quality of life, the cognitive problems seen on examination by myself and others are likely permanent and will not completely recover. It is important that compensatory strategies be used and that she have opportunities for assistance in day to day activities, parenting duties and more complex life experiences that require focused attention, concentration and memory functions. Ongoing periodic evaluations by her physicians are warranted. All care should be taken to avoid additional injury and to protect her from further concussion from this point forward.
(viii) Dr. H. Anton, physiatrist
[181] Dr. Anton assessed Ms. Abma on June 5, 2006, after the second accident had occurred. He provided a summary of the injuries which the plaintiff sustained in the first motor vehicle accident: injuries to the soft tissues of the pelvic girdle, the lumbar spine, the cervical spine and chest wall; injuries to the soft tissues of the left knee, possibly involving a patellofemoral mechanism; and a mild traumatic brain injury or “in different terminology,” a cerebral concussion.
[182] Dr. Anton attributed the plaintiff’s symptoms after the first accident to post-concussive syndrome. He concluded that the plaintiff’s situation after the accident was complicated by her psychological reaction which may have played an increasingly important role in her continuing cognitive and emotional difficulties as time progressed.
[183] During the examination, the plaintiff advised Dr. Anton that she had a short period of amnesia for events before the first accident (retrograde amnesia) and a short period of amnesia for the events after the accident (post-traumatic amnesia). Ms. Abma also reported some changes in her thinking for a period of at least several days after the accident.
[184] Dr. Anton refers to the American Congress of Rehabilitation Medicine definition of the criteria for mild traumatic brain injury: any period of loss of consciousness, any loss of memory for events immediately before or after the accident or any alteration in mental state at the time of the accident. Dr. Anton states that the term “concussion” is defined somewhat differently that mild traumatic brain injury but the two terms overlap and, for practical purposes, can be considered equivalent.
[185] Based on that information, Dr. Anton concluded that Ms. Abma probably suffered a mild traumatic brain injury, and that was the explanation for her period of amnesia and cognitive complaints immediately after the accident of November 14, 2001.
[186] In his evidence, Dr. Anton agreed that the usual pattern in brain injuries is that the symptoms are maximal at the beginning and improve over time. The symptoms should manifest within a few days of the injury. If the symptoms get worse over time, there is a possibility that other factors are contributing to them. He also stated that the more details which a person recalls after an accident, the less likely it is that person sustained a brain injury.
[187] Regarding the seizures which the plaintiff described to Dr. Anton, Dr. Anton opined:
It is possible she developed a seizure disorder as a result of a traumatic brain injury, but it would be unusual for that to occur following a relatively mild brain injury. Admission to a hospital seizure investigation unit for electroencephalographic and video monitoring could be helpful to clarify the nature of her presumed seizures and guide further treatment.
[188] Dr. Anton opines that the plaintiff probably suffered the following injuries in the accident on September 21, 2005: injuries to the soft tissues of the cervical spine and neck; injuries to the soft tissues of the left arm including the left wrist, left elbow, left shoulder; injuries to the soft tissues of the chest; and injuries to the soft tissues in and around the left knee. He also concludes that, based on the plaintiff’s report of a short period of amnesia for events after the accident but no documented loss of consciousness, there is a possibility that the plaintiff suffered a mild traumatic brain injury (or cerebral concussion) in that accident. Dr. Anton thinks it is more probable that other factors, such as her psychological reaction to the trauma of the accident and her pain after the accident, contributed to any increase in her cognitive complaints.
[189] Dr. Anton concludes that some of the plaintiff’s initial symptoms after the first accident could reasonably be attributed to the post-concussive syndrome. He also states:
It is clear that Ms. Abma’s situation after the accident was also complicated by her psychological reaction to the accident. I think it probable psychological factors have played an increasingly important role in Ms. Abma’s continuing cognitive and emotional difficulties as time passed.
… her continued psychological distress and dysfunction complicate her presentation and make it difficult to separate the relative contribution of psychological factors from the residual effects of brain injury to her current situation.
[190] In his concluding remarks, Dr. Anton described Ms. Abma’s prognosis to be “at best guarded”. He defers to the psychologist and psychiatrists who have assessed Ms. Abma regarding the prognosis for improvement in her psychological condition.
[191] In cross-examination, Dr. Anton stated that his diagnosis of mild traumatic brain injury in the first accident was based entirely on the plaintiff’s self report. He did not diagnose a mild traumatic brain injury in the second motor vehicle accident. When Dr. Anton formed his opinion about the mild traumatic brain injury in the first accident he had not seen the ambulance report or the report of the emergency room physician or Dr. Ng’s record. He was not aware that none of those records disclosed a loss of consciousness or loss of memory or a blow to the head.
[192] Dr. Anton was asked in cross-examination about Dr. Ancill’s use of prescription medication, specifically, Gabapentin as a mood stabilizer and Topamax. Dr. Anton does not prescribe either of these medications if he is treating people with mild traumatic brain injuries. He stated that both medications have a large number of side effects including sedation, clouding of thinking and decreased levels of alertness.
[193] Dr. Anton did not diagnose the plaintiff as having seizures. He stated that it was unusual for such a problem to occur following a relatively minor brain injury. He also did not think the bladder problem which the plaintiff was experiencing was related to the first motor vehicle accident.
[194] Ultimately, Dr. Anton considered that while he could not say definitively that the plaintiff did not have residual problems from a mild traumatic brain injury, he believed that the most significant problems were likely psychological in nature. Dr. Anton considered that the plaintiff might simply get better and go back to work with proper treatment including vocational assessment and counselling. Regarding future needs, Dr. Anton recommended the plaintiff have assistance with heavy cleaning around the house. He understood that the plaintiff was doing the cooking and yard work, teaching Sunday school, being involved in the children’s school activities and going to the gym three or four times a week.
(ix) Dr. I. Schultz, psychologist
[195] Dr. Schultz performed a neuropsychological assessment on the plaintiff on August 23, 30 and 31, 2006. Her report is dated September 6, 2006. She used a multi-assessment method consisting of behavioural observation over a three-day period, neuropsychological and educational test results, a review of clinical and educational records, a clinical interview with the plaintiff, and a collateral interview with the plaintiff’s husband, Murray Abma.
[196] Dr. Schultz’s testing identified neuropsychological and psychological problems. In respect of neuropsychological and psychological functioning, Dr. Schultz diagnosed the plaintiff’s cognitive functioning as demonstrating an overall intelligence falling into the below average range, which Dr. Schultz suggests is a likely decline from the plaintiff’s estimated pre-accident level of intelligence and is incompatible with the plaintiff having obtained a university education and having worked in a competitive private business. She identified neuropsychological impairments in sustained visual and auditory attention on complex, sequential and unfamiliar tasks with initiatory delays from a mild to a moderate difficulty; moderate to severe impairment in the auditory language domain and moderate to severe impairment (closer to severe than moderate) in the visual and visual motor domain, and a severe impairment of her executive function which included deficits in volition, planning, purposive action and effective performance.
[197] Dr. Schultz considered that the plaintiff suffered from a brain injury-based personality change arising from a frontal lobe-related impairment and emotional disturbance reactive to the trauma of the accidents and the aftermath including injuries, life disruption and major personal losses and a profound change in her sense of self.
[198] Dr. Schultz noted a personality change due to the plaintiff’s medical condition; emotional disturbance reactive to trauma and losses; a major depressive episode; recurrent anxiety disorder not otherwise specified; specific phobia (claustrophobia) with fluctuating stress-related mild general anxiety features; and pain. Dr. Schultz concluded that the factors affecting Ms. Abma’s psychological and neuropsychological impairments were several, including the brain injury as a causative factor.
[199] Dr. Schultz continues:
Among various factors that set this cycle in motion and those that constitute concurrent, subsequent and pre-existing stressors, the two MVA’s (in 2001 and 2005) and the direct and indirect consequences are of major causative significance in Ms. Abma’s current neuropsychological and psychological injury.
[200] Dr. Schultz considered the impact of the plaintiff’s neuropsychological functions to activities of daily living, family and social functioning. She opines that significant and dramatic recovery from the plaintiff’s cognitive dysfunction is both clinically and scientifically unlikely given the severity, chronicity and complexity of the plaintiff’s problems. Ms. Abma’s emotional disturbance has been difficult to treat and is not likely to abate.
[201] Dr. Schultz was aware of the neuropsychological testing performed by Dr. Spellacy in July of 2006. Dr. Schultz explained that the testing was invalid and, in her opinion, was the same as a fuzzy X-ray report. She had not seen the test results and did not consider it to be important that she see them.
[202] In her report, Dr. Schultz referred to the various medications which the plaintiff was taking, particularly Gabapentin, Tegretol and Effexor. She noted that Ms. Abma did not report any side effects upon her arousal or alertness. While Dr. Schultz stated that there is no 100% accurate scientific way of assessing the effects of the medications, and while she noted reduced levels of alertness in all or most of the plaintiff’s cognitive test performances, she nevertheless concluded that the medication did not interfere in her assessment of the plaintiff. In cross-examination she conceded that she is not a physician, and as a psychologist she is not trained to interpret medical data.
[203] Dr. Schultz was asked about the Lees-Haley Fake Bad scale; she described it as a “highly discredited method”. Dr. Schultz was asked to complete the scoring sheet for the Lees-Haley Fake Bad scale by direction of the court. Her conclusion arising from that direction was that the plaintiff scored 35 of the Fake Bad scale. Dr. Schultz agreed that raw scores above 28 should raise significant concerns.
(x) Dr. K. Favero, orthopaedic surgeon
[204] Dr. Favero examined the plaintiff at the defendants’ request on May 3, 2003 and again on August 2, 2006. Dr. Favero did not give an opinion regarding Ms. Abma’s complaint of a minor traumatic brain injury. The plaintiff had multiple musculoskeletal and orthopaedic complaints: pain in the neck, mid/lower back, right ribs, right hip girdle, left knee, right shoulder/chest and arms and hands.
[205] Following the examination of the plaintiff and a review of the clinical records and radiographs, Dr. Favero concluded that the plaintiff likely suffered a mild/moderate soft tissue injury to her neck and back and contusions to her neck, abdomen and left knee as a result of the accident. Dr. Favero states in his letter of May 9, 2003:
Based on my clinical experience, I would have expected these soft tissue injuries/contusions to have significantly improved/resolved within twelve weeks of the November 14, 2001 accident.
He continues:
Based on my assessment of Ms. Abma on May 9, 2003, she presented as an extremely symptom focused individual whose clinical examination strongly suggested a significant non-organic component to her various musculoskeletal/neurologic complaints. I base this latter opinion, that Ms. Abma has significant nonorganic illness, on the following findings:
1. Multiple areas of complaint.
2. No reported pain free interval.
3. Failure of all treatment modalities to date.
4. Significant pain behaviour and reaction on clinical examination.
5. Multiple areas of non-anatomic pain.
6. Regional numbness affecting her right arm.
7. Abnormal pain diagram.
All of these factors would suggest that there is a significant psychological social component influencing the reporting scenario and duration of Ms. Abma’s multiple musculoskeletal/neurologic complaints. In addition, Ms. Abma’s clinical records indicate that she suffered from anxiety/depression preceding her November 2001 motor vehicle accident, both of which can negatively influence an individual’s pain experience and their self perception of disability.
[206] In regard to her knee complaint, Dr. Favero concluded that the plaintiff may have suffered from a contusion to her distal quadriceps muscle and a mild strain to her left knee. He opines that it is “unlikely or not probable that she suffered any specific mechanical injury to her knee”. Dr. Favero points out that the plaintiff had significant knee complaints predating the first motor vehicle accident. In regard to her right shoulder complaints and prominence over the right sternoclavicular joint, he opines that Ms. Abma does not have any significant or specific problems relating to her right shoulder girdle and she did not suffer any injuries to the area in the first motor vehicle accident.
[207] Dr. Favero states that in spite of the plaintiff’s complaints of pain in her arms and hands, apart from mild trigger finger pain, the plaintiff does not have any specific orthopaedic or neurologic problems in her arms. Her complaints about pain in her neck and back were not specific and her clinical examination was “entirely normal”. In respect of the plaintiff’s complaints of pain in her right hip girdle, based on his clinical examination as well as an X-ray of the plaintiff’s right hip performed in January 2002, Dr. Favero considers that “Ms. Abma does not have any specific nor significant orthopaedic pathology affecting her right hip”.
[208] Dr. Favero states at p. 18:
It is my strong opinion that Ms. Abma does not require any further investigations for her various musculoskeletal/neurologic complaints, nor would I recommend any formal treatment of these. In fact, I would strongly discourage further investigations and formal treatment of these complaints, being concerned that these will further medicalize Ms. Abma’s subjective symptoms, and reinforce a self perception of illness/disability in this individual.
[209] Dr. Favero agreed upon cross-examination that different individuals experience pain differently and require different levels of analgesics for equal measures of pain. He also agreed that while soft tissue injuries generally heal within six to 12 weeks, some people continue to suffer chronic symptoms that must be taken seriously.
[210] Dr. Favero deferred to the experts in the field of traumatic brain injury, such as Dr. Ancill, regarding that diagnosis. He agreed that if the plaintiff had a traumatic brain injury, her medicalization of her symptoms may be consistent with that.
[211] Dr. Favero saw the plaintiff a second time on August 2, 2006. He notes that Ms. Abma was pleasant and cooperative throughout the examination. She showed no overreaction, nor any exaggerated pain mannerisms or other significant non-organic clinical signs. Dr. Favero concluded that as a result of the second accident, the plaintiff suffered musculoskeletal injuries including: soft tissue injuries/strain to her neck; soft tissue injuries/strain to her shoulder and arm (particularly elbow and wrist); and bruising/contusion to her anterior chest, left medial knee, right lateral hip girdle (particularly the iliac crest). Dr. Favero notes that all of these complaints were made after the first accident. Dr. Favero found no record of any right foot area injury complaints in the MSA Hospital records of the plaintiff’s emergency visit of September 21, 2005 or in Dr. Ng’s clinical records until November 18, 2005. Because of the delay of her complaint, and the fact that her complaints in November 2005 were in respect of the lateral aspect of her right foot, whereas now they are in respect of the medial instep, Dr. Favero suggests that her current right foot complaints have no causal relationship to the second accident.
[212] Dr. Favero concludes that the plaintiff probably suffered a new mild to mild to moderate soft tissue injury to her neck and upper back, interior chest wall, right lateral hip girdle and left medial knee. He would have expected the plaintiff to be physically capable of gradually resuming normal activities over the six to 12 weeks following the second accident.
[213] Dr. Favero opines that the plaintiff does not require any further investigation for her various ongoing musculoskeletal complaints, nor will she require any specific medical treatment or surgery in the future as a result of the accidents. Dr. Favero is of the opinion that the plaintiff does not require any arthroscopic surgery on her left knee based on her current complaints and objective orthopaedic findings.
(xi) Dr. D. Smith - Psychiatrist
[214] The plaintiff saw Dr. Smith at the request of the defendants on July 17, 2003. Dr. Smith’s medical/legal report is dated that same day. In the report he extensively reviews the records which were provided to him and summarizes what he considers to be the salient points.
[215] In respect of Dr. Ng’s records, Dr. Smith points out the record “does not deal at all with this woman’s pre-existing difficulties and the fact that she was still experiencing significant pain and dysfunction from the [1996] motor vehicle accident”.
[216] Dr. Smith refers the record of Dr. Ancill of April 3, 2002 and states:
This is an extremely brief record, and does not meet the standard of psychiatric consultation reports that would be acceptable in British Columbia. For example, there is no full mental state examination, there are no sections dealing with functional inquiry, past medical or psychiatric illness, and no use of what would be considered a standard DSM-IV Diagnostic Discussion.
[217] Dr. Smith disagrees with Dr. Ancill’s comment that “loss of consciousness has no predictive value”. Dr. Smith opines: “loss of consciousness is considered by most experts to be one of the critical variables in assessing brain injury”.
[218] At p. 7 of his report, Dr. Smith states:
In summary, I note that this woman had some pre-existing emotional difficulties. She was suffering from depression, significant sleeping problems, and low mood. A diagnosis of post partum depression had been made. She treated with an anti-depressant, Trazodone in doses that would suggest a treatment for depression rather than simply for a sleep disturbance.
[219] In respect of Dr. Ancill’s medical/legal reports, Dr. Smith notes that:
Dr. Ancill, as a matter of common practice, typically starts patients whom he believes have post-concussion syndrome, on Gabapentin or similar anti-epileptic medication. It is, therefore, not clear to me whether Dr. Ancill is prescribing Gabapentin because he believes this woman has a bona fide Seizure Disorder, or whether he is using this as a mood stabilizer.
[220] Having reviewed the records and conducting his clinical examination of the plaintiff, Dr. Smith concludes:
…with the exception of the self reported symptoms, there is no objective evidence to support the fact that this woman suffered any type of concussion or brain injury.
[221] He also concludes that “it is extraordinary unlikely that this woman had Post-traumatic Amnesia lasting up to two weeks from the type of accident which she experienced.” He continues:
I wish to point out that there is no objective evidence that this woman suffers from any type of seizure disorder.
…I do not believe that this woman is suffering from any psychiatric diagnosis, with a possible exception of an Adjustment Disorder with Anxiety. This is directly attributable to the fact that she believes that she has cognitively impaired as a result of the motor vehicle accident.
On examination today, this woman did not appear to be cognitively impaired in any fashion. I did not attempt an office based assessment of cognition, since the gold standard for cognitive functioning is neuropsychological testing, which she has recently had.
[222] In his examination of the plaintiff on July 17, 2006, Dr. Smith considered that Ms. Abma was not suffering from major depression; however, she was being treated with anti-depressant medication. He also concluded the she did not meet the diagnostic criteria for post-traumatic stress disorder.
[223] Dr. Smith did not consider that Ms. Abma was obviously malingering. He opined that the plaintiff may believe “that she suffered a series of brain injuries and is thus cognitively impaired”. He states:
She appears to selectively listen to the reports from her experts and reports what she wants to hear and not what the actual opinion appears to be. She is focused on somatic complaints of which cognitive impairment is only a subset.
[224] It is Dr. Smith’s view that Ms. Abma is most likely suffering from a somatoform disorder. Somatoform disorders are described as physical symptoms suggesting a general medical condition which is not fully explained by either a medical or psychiatric diagnosis.
[225] Dr. Smith did not interview any members of the plaintiff’s family or friends concerning her condition before the first accident in November 2001. He agreed that his conclusions regarding the plaintiff’s circumstances before the first accident were based entirely on Dr. Ng’s clinical records. He agreed that if he was aware that the plaintiff, prior to the first accident, was happy, taking care of her family, and engaged in social activities with friends, and generally doing well, that he would have some cause to think about what her symptoms were afterwards. If the plaintiff had no symptoms prior to the accident and some symptoms afterwards, Dr. Smith agreed that “it would be reasonable to assume that the symptoms afterwards might be due to the accident”.
[226] In reference to the diagnosis of post-partum depression, Dr. Smith agreed that he relied on Dr. Ng’s diagnosis derived from Dr. Ng’s clinical notes. The post-partum depression is noted after the birth of the plaintiff’s third child, in 1999. Dr. Smith was not aware of the evidence of the plaintiff that she was able to travel shortly after that child’s birth and discontinued the use of Trazodone which had been prescribed to help her with her post-partum symptoms.
[227] Dr. Smith’s opinion concerning the plaintiff’s use of Tylenol 3 before the first accident, that she relied on that medication heavily, was based upon the Pharmanet printout. He considered that the use of Tylenol 3 continued extensively up to the day of the first motor vehicle accident.
[228] Dr. Smith agreed that the Glasgow Coma Scale is not an assessment which was intended to measure traumatic brain injury. A normal score taken by an ambulance crew does not establish that this score would have been normal immediately after the impact. Patients are often fully oriented by the time they are assessed on the Glasgow Coma Scale, yet they may have experienced altered consciousness or post-traumatic amnesia. Dr. Smith agreed that it is possible that a patient can be oriented and responsive even though they are in a state of post-traumatic amnesia. Assessing true post-traumatic amnesia retrospectively is difficult because post-traumatic amnesia is mixed with memory loss due to the passage of time. Dr. Smith agreed that a patient in a state of post-traumatic amnesia may report being unconscious or having an “out of body” experience. Dr. Smith agreed that it is possible to have a traumatic brain injury without a loss of consciousness and that a loss of consciousness alone is a poor predictor of the outcome of a traumatic brain injury.
[229] Further, under cross-examination, Dr. Smith agreed that the results of a CT scan or MRI can be normal despite the presence of traumatic brain injury. The fact that the plaintiff’s results were normal does not disclose that she does not have a diagnosis of traumatic brain injury.
[230] Dr. Smith agreed that a mild traumatic brain injury is associated with deficits in the speed of information processing, attention and memory, which are most pronounced in the days to weeks after the injury. He agreed that most patients show a rapid progressive improvement over the subsequent one to three months, but a small percentage of patients demonstrate long term sequelae. Dr. Smith has also noted in articles which he has authored an increase in the incidence of depression following traumatic brain injury.
[231] Of those patients with persistent post-concussion syndrome symptoms, Dr. Smith agreed that they fall into a category described as the “miserable minority”: those individuals’ brain injuries are associated with high levels of divorce and marital dysfunction.
[232] Dr. Smith also agreed in cross-examination that an individual’s recovery from a traumatic brain injury will depend on a variety of factors including personality and environmental and psychological factors. Ms. Abma had a history of various health concerns which Dr. Smith agrees leaves her more likely to be affected by her injury. However, Dr. Smith stated:
I think my preferred diagnosis was a somatoform disorder which is a long standing problem with a variety of unexplained physical symptoms, so I would agree … there are a lot of things in her background which make her vulnerable.
[233] In respect of causation, Dr. Smith opined in his second medical/legal letter:
[T]his woman’s somatoform disorder was a pre-existing problem with anxiety, depression and post traumatic stress disorder. It is, therefore, likely that the three accidents as well as the fall on the ice with the subsequent concussion have exacerbated her pre-existing symptoms, although it is difficult to assign precise causation to any of the three motor vehicle accidents or the fall on the ice. I again want to stress that in the differential diagnosis for somatisation disorder, it is important to rule out Factious disorder and malingering. I have no information that can address these from my review of the records or interview of this woman.
(xii) Dr. E. Sinanan, otolaryngologist
[234] At the request of the defendants’ counsel, Dr. Sinanan examined the plaintiff on February 27, 2004. His report is dated March 15, 2004. Dr. Sinanan restricted his report to the otoneurological aspects of the plaintiff’s complaints and, in particular, her complaints of dizziness and neck pain resulting from the first accident. Dr. Sinanan reviewed the material provided to him by counsel for the defendants, which included the plaintiff’s MSP printout and clinical records of her various physicians as well as other documents.
[235] Dr. Sinanan examined her ears, which he concluded were normal; her nose, which he described as ample; her nasopharynx, which was clear; and her mouth, throat and larynx which were all normal. He palpated the muscles of the plaintiff’s head and neck and found no tenderness or resistance; flexion and extension in all directions was satisfactory; and her range of movements was satisfactory. He examined the central nervous system, though not the retina, but the cranial nerves I, III, IV, V, VI, VII, IX, X, XI, and XII which were all normal and satisfactory. He performed a Dix-Hallpike manoeuvre, where the plaintiff reclines and her head is turned suddenly, but found no detectable nystagmus and the plaintiff did not report any feelings of dizziness or nausea.
[236] Dr. Sinanan’s concluded that the prescriptions of Tylenol 3 and the anti-inflammatory medication were “notorious for causing symptoms such as Ms. Abma experienced, which is dizziness and especially light headedness … they are not necessarily related to any closed head injuries sequelae.” The plaintiff’s history did not suggest any symptoms of a vestibular disorder. The tests showed normal hearing and her complaint of tinnitus did not persist after the first accident.
[237] In his prognosis, Dr. Sinanan concludes that the plaintiff suffered a mild/modest neck sprain in the first motor vehicle accident classified as whiplash-associated disorder (WAD) Type 1. He considers that this may have re-activated the neck sprain from her 1996 motor vehicle accidents which demonstrated that her complaints continued for more than three years. Dr. Sinanan states “but for that factor, recovery from a Grade 1 WAD Type neck sprain usually is within six to eight weeks, 12 weeks at most”.
[238] Dr. Sinanan is not an expert in traumatic brain injury and could not comment on the relationship between dizziness and traumatic brain injury. He was primarily concerned with whether the plaintiff had sustained an inner ear injury, and he found no evidence of such an injury. He was presented with testing performed at VGH in the neuro-otology unit which showed abnormal results indicating objective abnormalities. Asked whether the testing may raise a possibility of an inner ear injury, Dr. Sinanan stated that if the problem is not with the inner ear, then it is with the central nervous system, meaning the brain.
[239] In respect of his conclusions that her medication accounted for her dizziness, Dr. Sinanan referred to three such references in Dr. Ng’s clinical records. He referred to a June 1993 note of postural hypotension following exercise where the plaintiff was advised to increase her intake of water and salt; an April 1995 note relating to her father’s health condition; and a July 1999 record that suggests that Dr. Ng attributed the plaintiff’s complaint of dizziness at that time to an infection in her Eustachian tubes.
(xiii) Dr. M. Jones, neurologist
[240] Dr. Jones is in an expert in Neurology. It is uncontested that he is the foremost epilepsy expert in the province of British Columbia. The plaintiff attended Dr. Jones’ office on June 7, 2004.
[241] In his medical/legal report of the same date, Dr. Jones reviewed the records which he had been provided, including most of the plaintiff’s clinical records from both before and after the first accident. He also reviewed the MSP printout.
[242] During the examination, the plaintiff outlined her chief complaints arising from the first motor vehicle accident:
1. Head problems including decreased memory, decreased concentration, decreased organizational skills, poor balance, poor vision and word finding difficulties.
2. Seizures.
3. She was waiting to have more surgery on her left knee.
4. Right hip and SI joint pain.
5. Pain on the left side of her neck.
6. Pain in right shoulder.
7. Pain in sternoclavicular joint.
8. TMJ problems.
9. Pain in the lower right abdominal muscles.
10. Bladder problems of two types: she can’t empty fully and with seizures loses bladder control.
11. Finds it hard to answer questions when she is in a group of people.
[243] At the time of the examination the plaintiff was taking Tegretol CR 600 mg twice a day, Gabapentin 400 mg three times a day, Oxazepam 6 mg at bedtime, Ditropan for her bladder and Effexor. She was also taking Tylenol 3 every second day, and Flexeril approximately twice per month for headaches.
[244] The plaintiff and Mr. Abma, who was in attendance at the examination, described the seizures which the plaintiff was experiencing. The plaintiff described waking up after seizures and finding that she had wet herself. It was on that basis that she knew she had had a seizure. She would also know whether she had one the next day because she would feel confused when she awoke, would become lethargic and would have headaches which would go on for a day or two. Her husband described the sequence of events with her seizures, reiterated by Dr. Jones in his report:
Murray says that he sees a sequence of events. It often starts with her breathing getting faster and faster and he imitated to me typical hyperventilation. Then there would be a slight twitching in her hands or her feet and then her body will shutter and he demonstrates some pelvic thrusting. The face may twitch and this will go on for 45 or 60 seconds and then it winds down. After two or three minutes she may have another episode that is similar but milder and then after another minute or two she will have another episode that is much less intense with perhaps hypoventilation and twitching but not longer full body involvement. During these she will often get up and go to the bathroom, having been incontinent, and will stumble back into bed not even fully awakening. The next morning she won’t know that she has had a seizure but will realise that she is wearing a different pair of underwear.
[245] Mr. Abma did not describe any frothing of the mouth during the seizures and he could not say whether the plaintiff’s eyes were open, closed or rolled during these seizures.
[246] The plaintiff described daytime seizures where she has a feeling of “just not there”, lasting a minute or two. She had them two or three times a week but now the occurrence has decreased dramatically.
[247] Dr. Jones performed a bedside mental status test to assess attention and effort. He also examined her cranial nerves and found her pupils equal and round. Her fundi were normal and her visual fields were full. There was no nystagmus. There was no strabismus on the cover/uncover test. Her tympanic membranes looked normal. The muscles of the visual expressions were fine. The lower cranial nerves were normal.
[248] As a result of the bedside mental status testing, Dr. Jones concluded that the plaintiff’s neurological and physical examination was “certainly normal”. Ms. Abma showed a few abnormalities on the very simple mental status screening tests which he considered functional or of a non-organic nature.
[249] Dr. Jones opines that it is “possible” that the plaintiff has epilepsy but describes the plaintiff as “wav[ing] many of the red flags” that Dr. Jones would use to diagnose non-epileptic seizures. Dr. Jones notes that the night-time seizures described by Mr. Abma are stereotypes and while they may vary in duration and severity, they are pretty much the same on each occasion. Dr. Jones notes that if he is wrong and the plaintiff does have epilepsy, its onset is coincidental to the first motor vehicle accident. Dr. Jones states:
For [the plaintiff’s seizures] to be related to her accident she would have to have “post-traumatic epilepsy”. There is a fair amount of literature on this suggesting that the brain needs to be damaged so badly that when it heals, it heals with scar tissue, and it’s that scar tissue that is the cause of the epileptic diathesis. There is a more or less general consensus in the literature that you need to be hit so hard that you have a post traumatic amnesia, or loss of consciousness, in the order of 24 hours. You need not [suffer] only a skull fracture but a depressed skull fracture and you would have to have seizured in the first week [grand mal] and signs that would point to a intracranial haemorrhage [looks like a stroke].
[250] Dr. Jones concluded, as a result of his examination, that the plaintiff did not have a brain injury. She may have had a closed head injury but that depends entirely on her self reporting. Dr. Jones reports that none of the professionals who saw the plaintiff in the immediate aftermath of the first accident describe features of such an injury.
[251] Dr. Jones refers to Dr. Cripps’ opinion that the plaintiff suffers from a “possible neurogenic bladder”, a condition which he describes as intrinsic to the bladder and which does not involve damage to the brain, spinal cord or peripheral nerves.
[252] Dr. Jones speculates that many of the plaintiff’s current complaints may be due to her “fairly extensive current polypharmacy that does appear excessive.”
[253] Dr. Jones had an opportunity to review the brief video which Murray Abma recorded of the plaintiff’s seizure activity on June 1, 2002. He observes, in his report of July 13, 2004, that the video shows the plaintiff lying on her back largely covered by a comforter, her left arm is visible, uncovered, lying on the bed. She has shaking which lasts for about 20 seconds and then dies down and then starts up again. Dr. Jones describes the shaking as “at various times trembling and at other times kicking out of synchrony with pelvic thrusting.” Dr. Jones describes that you can hear the hyperventilation throughout but cannot see the plaintiff’s face; it does look like her eyes are closed. Dr. Jones notes that there is no tonic extension, no vocalization or guttural sounds, and no arching of the head. The whole body is affected, Dr. Jones notes, although the left arm lies fairly still beside the plaintiff’s body. The whole episode is approximately 50 seconds in length.
[254] In his discussion of his observation of the video of the seizure, Dr. Jones states:
Although one could certainly call this a seizure, using the word loosely, it is in so much that it is an event. It certainly does not conform to, look like, or leave me to think that it has an epileptic basis to it. This is what we would typically call a non-epileptic seizure; sometimes called a pseudo-epileptic seizure. Seizures like this, for it to be epileptic, should have some tonic stiffening (looks like a 2x4) and then have chronic jerking (thrash like a fish). The thrashing motions are always synchronous, meaning that the arms and legs jerk in parallel, if you like. If you look at [the plaintiff], you can see that the legs are kicking left, right, left, right at various times. Other times there is pelvic thrusting where she arches her back partially. One can hear hyperventilation throughout the seizure, whereas in an epileptic seizure typically one has a period of apnea and that accounts for why patients go blue or cyanotic. Also a strong argument against this being an epileptic seizure is the fact that her whole body is involved in the process, if you like, and yet her left arm is not and lays fairly quietly beside her body. Lastly the big clinical clue is that it appears that her eyes are closed. Virtually every single patient with an epileptic seizure has their eyes open. One of the strongest clues that you are dealing with a conversion reaction, malingering, hysteria, pseudo-seizure or whatever, is if the person’s eyes are closed during the event and, of course, that observation is subject to various psychological or psychiatric interpretations.
[255] Dr. Jones concludes that the seizure, which he observed on the videotape, was a non-epileptic seizure or a pseudo-seizure.
[256] Dr. Jones did a follow-up examination of the plaintiff following the second accident, on August 24, 2006. In that examination, the plaintiff complained of the following, in order of severity:
1. Her head was not functioning.
2. Headaches.
3. Stomach pain, regurgitation, acid pain.
4. Pain in her right ribs.
5. Bleeding in her bowels, that is new since the September 2005 accident and not part of her Von Willebrand’s bleeding tendency.
6. Throat problems in that she couldn’t talk initially. Still has some discomfort and still continues to work with her speech therapist.
7. Right shoulder pain particularly in the sternoclavicular joint.
8. Re-injured left knee.
9. Continuing seizures.
10. Bladder incontinence.
11. Pain in the arch of her left foot that comes on with running and exercise.
[257] The plaintiff’s problems with her voice, her stomach and her left foot were not symptoms that she experienced prior to the second accident.
[258] From his examination, Dr. Jones concluded that the plaintiff did not suffer a significant head injury in either the first or second accidents. He states:
My examination two years ago showed a number of functional findings and similarly on mental status testing today, [the plaintiff] reveals features I feel are not compatible with a traumatic brain injury. Some of the examples she gives to illustrate her ‘cognitive difficulties’ are most unusual, such as the word substitution using the ‘microwave example’ as she related in her history of present illness. In fairness to her however she is on an excessive amount of medications some of which can cause cognitive side effects and this may be a contributing factor to some of her self reported difficulties.
[259] Dr. Jones expresses concern about both the amount and variety of the drugs which the plaintiff is taking, and in particular the Topamax. Dr. Jones describes it as “probably the most potent of all the anti-epileptic drugs having many mechanisms of action and affecting many neuro-chemical pathways”. Dr. Jones states:
In my experience, often patients taking more than 200 mg a day may well have significant cognitive problems. These, to oversimplify, show up in the form of ‘problem solving’ and ‘word finding’ and you often find yourself wanting to ‘finish their sentences for them’ because they are slow at finding the words that they are looking for.
[260] He also considers that the Ditropan dose at bedtime is large and it is also associated with the prevalence of side effects including dizziness, headache, confusion, insomnia and nervousness.
[261] Dr. Jones remained of the view that the seizures, which the plaintiff described as continuing, were not representative of post-traumatic epilepsy. He questions why the treating physicians, including Dr. Ancill and Dr. Cameron, have chosen not to recommend to the plaintiff that she cease driving.
[262] In cross-examination, Dr. Jones acknowledged that some of the problems of which the plaintiff complained, including memory problems, concentration problems, organizational problems, word finding problems, and headaches, are consistent with traumatic brain injuries. He agreed that the bedside testing is not intended to replace formal neuropsychological testing. Dr. Jones did not perform a mini mental status examination as had been performed by Dr. Kelly.
[263] Dr. Jones agreed that neuropsychological testing is superior to bedside mental status testing and is important to fully assess a patient’s cognitive ability.
[264] Also in cross-examination, Dr. Jones agreed that he had obtained a history of post-traumatic amnesia in his first visit with the plaintiff in June 2004 as there were “islands of memory” that the plaintiff was unable to recall both before, during and after the first motor vehicle accident.
[265] While Dr. Jones stated in his examination in chief that in order to suffer from post-traumatic epilepsy, a patient must sustain a head injury of consequence, involving a skull fracture or bleeding in the skull, he agreed in cross-examination that although the incidence of epilepsy after a mild traumatic brain injury is rare, it can occur.
[266] True epileptic seizures and non-epileptic seizures are difficult to distinguish, Dr. Jones stated, and they are often mistaken for each other. Patients suffering from non-epileptic seizures do not typically respond to anticonvulsant medication. About half the patients that Dr. Jones sees who are suffering with non-epileptic seizures he refers to a psychiatrist.
(e) Position of the parties on the injuries suffered by the plaintiff
[267] The plaintiff says that she suffered psychological injuries that severely affect her cognition and emotional state. The plaintiff’s experts have diagnosed a traumatic brain injury suffered in each of the accidents. The sequelae of the traumatic brain injury and the resulting post-concussion syndrome have left Ms. Abma competitively unemployable as a business consultant in the area of retail and tourism. The evidence establishes that Ms. Abma’s ability to function both at home and at work has been adversely affected by the accidents. There is little reason to anticipate that more than five years after the first accident Ms. Abma will regain her former health, independence or ability to work.
[268] The defendants Paul concede that the plaintiff suffered aggravations of pre-existing injuries to her left knee, neck, chest/right shoulder and hip. The injuries have not been the cause of significant disability beyond the first few weeks or months following the accident. The plaintiff’s loss of function and need for future care arise from cognitive impairments, visual disturbances, post-traumatic epilepsy and reduced energy alleged to have been caused by an injury to her head. The plaintiff’s evidence does not support a finding of a brain injury in this case.
Defendants Brandy
[269] The defendants Brandy assert that the extent of the plaintiff’s damages from the second accident should be restricted to non-pecuniary loss arising out of the aggravation of pre-existing and presently disabling series of problems. These defendants urge reliance on the reports of Drs. Anton, Favero, Sinanan, Smith and Jones.
(f) Decision on the plaintiff’s injuries
[270] As Dr. Anton stated in his evidence, the criteria for a mild traumatic injury is: any period of loss of consciousness; any loss of memory for events immediately before or after the accident; or any alteration in mental state at the time of the accident. It is not necessary that a person lose consciousness to sustain a traumatic brain injury, nor is it necessary that a person strike her head in order to suffer a traumatic brain injury. The occurrence of such an injury can be deduced from any alteration in the mental state at the time of the accident, that is, where the plaintiff felt dazed, disoriented or confused.
[271] In this case, the defendants Paul challenge the most basic aspects of the plaintiff’s case. They say that she has not proven how she was injured in the first accident, that is, the mechanics of the events which would have caused the brain injury; she has not proven that she hit her head at all, or that she had a large bruise (“football sized lump”) on the left side of her head; she has not proven that she had any loss of consciousness in the first accident; her memory of the first accident is detailed and continuous; and she did not demonstrate any alteration in her mental state at the time of the accident.
[272] The plaintiff says that she has no recollection of what happened to her body when the defendant Paul’s vehicle collided with hers. There is no evidence about the mechanism of the injury. The plaintiff maintains that she must have hit the left side of her head against the driver’s side window, which caused a significant bruise.
[273] There is no record from the date of the accident describing any injury to the plaintiff’s head. The emergency health services crew and hospital records provide information about the plaintiff’s condition; however, neither records an injury to her head. None of the eyewitnesses at the scene, including the defendant Paul, Sharon Reimer or John Neufeld, reported seeing any signs of injuries to the plaintiff’s head. The plaintiff did not complain of head pain to any of them.
[274] The plaintiff saw Dr. Ng in his office two days after the first accident and again on November 23, 2001. Dr. Ng’s notes do not make any reference to a bruise or swelling to the left side of the plaintiff’s head. The first discussion of head injury symptoms appears to be in the third visit to Dr. Ng on November 28, 2001, but there is no note of any signs of head trauma. Dr. Ng says that in such circumstances he would have examined the plaintiff’s head and would have noted any bruises or injury observed.
[275] The plaintiff saw her dentist, Dr. Edworth, on November 21, 2001 for an assessment of jaw pain. He did not note pain in her head or any visible signs of head trauma.
[276] Pain and swelling is noted in Dr. Ng’s note of December 13, 2001 on the right side of the plaintiff’s head and on December 21, 2005 referencing right-sided headaches. Dr. Ng does not make any mention of left side head pain or swelling.
[277] The first mention of the plaintiff having a “huge lump” on the left side of her head is in the record of Dr. Saunders, the first psychologist whom the plaintiff saw in February 2002. It was mentioned by the plaintiff, but there was no physical evidence of such an injury.
[278] The medical reports of Drs. Van Rijn, Kelly and Anton are based on the history which was described to them by the plaintiff and her husband. Dr. Van Rijn states that the plaintiff “suffered a head injury [in the first accident] when she struck the left side of her head with subsequent bruising. This has resulted in some brain dysfunction”; Dr. Kelly states that the plaintiff had a left sided head/scalp bump and tenderness which caused headaches and other pain and prevented her from sleeping on her left side for four months following the first accident; Dr. Anton based his conclusion that the plaintiff suffered a concussion during the first accident on the history which the plaintiff gave him.
[279] According to the medical evidence, it is not necessary for a person to strike her head in order to suffer a traumatic brain injury. However, the plaintiff’s position is that she did strike her head in the first accident, which caused a significant bruise to the left side of her head. She has described the bruise to various physicians, whose conclusions about her brain injury rely on the presence of such an injury. It is therefore critical that I make a finding concerning whether the plaintiff suffered a bruise to the left side of her head in the first accident.
[280] Based on the evidence, I cannot find that the plaintiff suffered an injury to the left side of her head. The only people who referred to it are the plaintiff and her husband. It is impossible that a “football size lump” on the left side of her head would not be noticed by any of the emergency crew attending at the accident, nor by the emergency room physician who saw the plaintiff just after the accident. I am particularly persuaded that there was no such trauma to her head by the fact that Dr. Ng, who was specifically looking for evidence of a head trauma after the plaintiff mentioned her mental state to him on November 28, 2001, made no note of it in his clinical records. Dr. Ng stated in his evidence that if he had observed such a trauma to the plaintiff’s head, he would have noted it. Instead, he refers to loss of consciousness for an unknown period of time, and while he suspected she suffered a concussion and made a provisional diagnosis of a closed head injury, he did not note any external signs of trauma to the plaintiff’s head. There is no way to explain why her family physician, who was specifically looking for signs of trauma to the plaintiff’s head two weeks after the first accident, found none and did not record any. The plaintiff said that the bruise was the size of a football and was so painful that she could not sleep on the left side of her body for several months.
[281] If it was only the plaintiff who described having suffered from a “football size lump” to the left side of her head, I could consider that her history may not be accurately reflected by her due to her brain injury. However, her evidence of the left sided bruise to her head is supported by Murray Abma. Rather than finding that his evidence corroborates the plaintiff’s evidence, I find it to be suspicious. Because there is no other independent evidence to support this fact, it leads me to conclude that Mr. Abma’s evidence about the swelling and about the plaintiff’s reports of tenderness in that area and her not sleeping on that side of her head and body for several months, is not credible and cannot be relied on to prove this fact. For whatever reason, perhaps to be supportive of his wife or to promote her lawsuit, I find that Mr. Abma is not being truthful when he describes the bruise to the left side of the plaintiff’s head.
[282] As the medical report notes, it is not necessary that a person strike her head to suffer a traumatic brain injury. The plaintiff refers to a loss of consciousness, a loss of memory of the events immediately before and after the collision, and an altered mental state at the time of the accident.
[283] The plaintiff said that she was able to recall events before the first accident but only had a spotty memory of the events following the accident both at the scene and at the hospital. It is clear from the evidence that the plaintiff remembered different things at different times as she related them to different people, including her physicians. However, as I noted in my description of the plaintiff’s recollection after the first accident, her memories before, during and after the accident appear to be comprehensive. She has been consistent in expressing that she does not recall that she hit her head, or if she did, how that occurred. She also does not recall the deployment of the airbag.
[284] The witnesses to the first accident, including the defendant Steven Paul, Shirley Reimer and John Neufeld, described the plaintiff as conscious, able to make eye contact, complaining of the pain in her knee and responding appropriately to questions. Mr. Neufeld said that he thought the plaintiff was “dazed” but she did recognize him and understood his questions and responded appropriately.
[285] There is no note in the police report as to any loss of consciousness. The ambulance crew member did not observe any disorientation.
[286] The only evidence of the plaintiff’s being confused and “not really there mentally” is from Mr. Abma. I have the same concerns about Mr. Abma’s credibility concerning the plaintiff’s mental state following the accident as I have with his evidence about the tenderness to the left side of her head. His evidence is contrary to all of the independent evidence, except for Mr. Neufeld who described the plaintiff as “dazed.” His description would accord with Mr. Abma’s, except that Mr. Neufeld went on to say that Ms. Abma appeared to understand him and responded appropriately. Those additional comments do not support the plaintiff’s claim that she lost consciousness or lacked awareness immediately following the first accident.
[287] The emergency room physician did not observe any confusion or lack of memory or complaint of head pain. Ms. Abma was sufficiently present to ask him to give her a prescription to treat her sinus infection.
[288] The first mention of a potential cognitive deficit is recorded in Dr. Ng’s notes of November 28, 2001. At that appointment the plaintiff told Dr. Ng that she lost consciousness at the accident, could not talk, and had an “out of body experience”. At trial, the plaintiff denied any recollection of seeing the defendant’s vehicle before the accident, any memory of the impact itself and no memory of experiencing pain at the scene of the accident. The plaintiff denied any memory of a woman at the scene offering to make a phone call for her and reported having only the vaguest of memories of Mr. Neufeld. She said that she did not remember Murray Abma at the scene of the accident. At the trial the plaintiff denied any recollection of concern about a boy while at the scene of the accident. She denied having any recollection of the ambulance crew, only fragments of memory of her time in the emergency ward. She denied having any clear memory of events after she was discharged from hospital. She denied receiving a teddy bear from the defendant.
[289] The reports of the length of post-traumatic amnesia have also varied. Dr. Ancill, after his initial interview with the plaintiff in April 2002, assessed the duration of her loss of continuous memory as being approximately 10 minutes, but later he concluded that the period of post-traumatic amnesia was five hours. The plaintiff told Drs. Smith and Jones that it was 10 to 14 days before her continuous memory returned. At the trial the plaintiff said that she did not experience the return of continuous memory until almost three weeks after the accident.
[290] In relating the plaintiff’s recollection of the first accident, I have adopted the chronology which the defendants Paul describe in their argument, based on the various statements which the plaintiff has made to others concerning her recollection of the first motor vehicle accident. I appreciate that the plaintiff may have some “mixed memory,” that is, memories based on things that she has been told by others, but many of the things that she recalls can only be from her own memory. Others could not have told her things such as that she felt pain from having her left knee jammed under the steering wheel, or that she felt reassurance when John Neufeld told her that he would get Murray. Based on my conclusion that the plaintiff’s recollection is continuous, I find that there is insufficient evidence to support a finding of meaningful disruption of memory.
[291] The disruption in the plaintiff’s memory is a foundation to the opinions of Drs. Van Rijn, Ancill and Anton. Dr. Van Rijn describes one of the features of the plaintiff’s brain dysfunction as an incomplete recall of events around the accident and for a period after; Dr. Ancill describes the plaintiff as having no recollection of the collision, periods of unawareness and a prolonged period of discontinuous memory which he considers to be of five hours; Dr. Anton diagnosed retrograde and post-traumatic amnesia.
[292] This brings me to Dr. Ancill’s evidence, both in his written reports and in his testimony at trial. I start with the fact he diagnoses a brain injury in nine out of ten of his patients. That may be due, to some extent, to the type of patients who are referred to him. Dr. Ng referred the plaintiff to him based on Dr. Ng’s provisional diagnosis of a closed head injury. Other family doctors may do the same. I expect that those referring doctors consider that Dr. Ancill has the expertise to diagnose a brain injury and does so after a thorough neuropsychiatric evaluation. That is not what happened in this case. Dr. Ancill met with Ms. Abma for an hour the first time he saw her. He accepts that this is an inadequate initial consultation and he admits that he did not meet the standard for psychiatric consultation reports in British Columbia. Dr. Ancill advised Ms. Abma at the end of the first interview that she suffered from a mild traumatic brain injury. That diagnosis must have been devastating to Ms. Abma and her family. Dr. Ancill has persisted in that diagnosis. He says that every examination of the plaintiff following that initial diagnosis has confirmed to him that the diagnosis is correct. Dr. Ancill’s scientific method is to diagnose first and then confirm the diagnosis in subsequent examinations. It becomes a self-fulfilling prophecy. On this basis it is not surprising that he finds most of his patients suffer from brain injuries. Dr. Ancill made his diagnosis before having an opportunity to fully understand the plaintiff’s medical and psychiatric history, or to review the medical records, particularly those containing the medical observations of the plaintiff following the first accident, or any testing that had been performed on her, notably the CT scan. His process of proving his initial diagnosis explains why he is prepared to maintain that the plaintiff suffers from post-traumatic seizure disorder, in spite of Dr. Jones’ opinion, who Dr. Ancill concedes is an expert in the field. It also explains why three years after the first accident, Dr. Ancill is prepared to estimate the plaintiff’s period of discontinuous memory as five hours although his clinical note of the initial interview with the plaintiff in April 2002 describes her memory as discontinuous for 10 minutes following the accident. In all the circumstances, I am unable to rely on Dr. Ancill’s opinions and where they differ from the other medical experts, particularly Drs. Smith and Jones, I rely on those other medical experts.
[293] Having found that the plaintiff did not suffer a bruise to the left side of her head, and that her disruption of memory is not as significant as is suggested by the plaintiff, her husband, or the physicians who accepted her history, I find that the plaintiff neither suffered a physical injury to her head, nor experienced a loss of consciousness or a significant period of post-traumatic amnesia.
[294] Despite my finding that the plaintiff did not suffer a bruise to the left side of her head and that she did not lose consciousness or have a significant period of post-traumatic amnesia, I must still consider whether she went on to develop mild traumatic brain injury or post-concussion syndrome.
[295] The evidence discloses that in the first two weeks following the accident the plaintiff attended several medical, dental and legal appointments. She continued to conduct her business and was in email communication with those to whom she provided services and those who worked with her. She went to Disney World although, as she states, it was not “the happiest place on earth” for her. During the period that the plaintiff describes herself as being confused and having “out of body” experiences, she continued to bill for her services to Tourism BC. She applied to renew her contract in February 2002 and suggested that her output for the forthcoming year would be greater than the previous year. The plaintiff agreed to deliver Superhost workshops for 2002 and 2003. She conducted more workshops in 2002 than she did in the year before the accident. Despite this, it is the plaintiff’s evidence that she was having extreme difficulty in running her business and relied heavily on her husband’s support. Murray Abma stated that he helped with proofreading some of the material from time to time, but did not perform any administrative work. The evidence of Accent invoices and written material produced by the plaintiff after the first accident is at odds with Ms. Abma’s description of her cognitive state after the first accident.
[296] The plaintiff began increasing the involvement of others including Ms. Loewen in 2003 and ultimately wound up the company in 2004. Considering all the evidence surrounding the operation of the business after the first accident, I cannot find that the first motor vehicle accident was the cause of the plaintiff’s closing her business almost three years later.
[297] The plaintiff describes that she has difficulty shopping, and only drives within familiar areas close to home. The evidence establishes that in June 2005, she drove her daughter to the airport in Seattle and home again (experiencing a rear-end collision). She went to see Dr. Spellacy in Victoria on her own. While I accept that driving is a necessity, the plaintiff’s evidence about driving only close to home is not accurate. I find that the plaintiff has exaggerated her disability in respect of her driving. She continued to drive, with her children, despite Drs. Ancill and Kelly concluding that she was experiencing seizures.
[298] The evidence surrounding the plaintiff’s seizures is also confounding. She stated in her evidence that her first seizure was shortly after the first motor vehicle accident in November 2001. She did not report the seizure to Dr. Ng until April 2002. Murray Abma’s evidence was that he witnessed the seizures but he did not consider it necessary to take Ms. Abma to see her doctor or to emergency despite her having fallen out of bed and being incontinent in both bladder and bowel. In June 2002, he was able to record one of her seizures on video. I find this to be an unusual response if Mr. Abma truly held the view that his wife was having a seizure. It is more than nonchalant to suggest that based on his experience as a lifeguard he was content to make his own diagnosis and to ensure that she was safe. There is no evidence of what Mr. Abma did to make Ms. Abma safe. Indeed there was evidence that he slept through her seizures most of the time.
[299] The plaintiff has resisted attending the seizure investigation unit run by Dr. Jones to which Dr. Anton referred in order to determine whether the seizures are truly epileptic seizures.
[300] The evidence that the plaintiff is having seizures and that they relate to the injuries that she sustained in the first accident comes from Drs. Ancill and Kelly. Dr. Ancill conceded that Dr. Jones was an expert in the field of seizure disorders, and that his opinion was that the plaintiff is not having epileptic seizures. Yet Dr. Ancill maintains his view that the plaintiff continues to suffer from a post-traumatic seizure disorder. He continues to prescribe Topamax, which Dr. Jones describes as the “most potent of all anti-epileptic drugs.” Dr. Kelly’s evidence was that the plaintiff’s treating neurologist had prescribed anti-seizure medication and the plaintiff “appeared” to respond to it. He had not viewed the video which Mr. Abma had taken of the plaintiff’s seizure in 2002 when he prepared his medical/legal report.
[301] Ultimately I prefer the evidence of Dr. Jones, who is an acknowledged expert in the diagnosis of seizure disorders. I prefer it to the evidence of Dr. Ancill who is not a neurologist and has no specific expertise in the diagnosis of seizures, and to that of Dr. Kelly, whose opinion is based on the plaintiff’s history and the fact that she is responding to the anti-seizure medication. An equally reasonable explanation for her not experiencing seizures is that she does not suffer from a seizure disorder.
[302] Dr. Kelly expressed his opinion that the plaintiff shows objective signs of a neurological injury demonstrated by the positive wheal and flair test and the palsy of the fourth cranial nerve. It is remarkable that many others physicians have examined the plaintiff’s cranial nerves and only Dr. Kelly has noted the palsy of the fourth nerve. Dr. Kelly’s view is that the palsy is a result of the closed head injury the plaintiff sustained in the first accident. In doing so, he has accepted the history provided to him by the plaintiff and Mr. Abma and has accepted as a fact that she sustained a concussion in the first accident.
[303] I cannot find the plaintiff’s bladder complaints to be related to the first accident. Dr. Cripps, the urologist, did not connect them in her medical reports. Drs. Anton and Van Rijn do not associate such problems with a brain injury, if the plaintiff suffered one. I therefore reject the plaintiff’s claim for incontinence pads.
[304] In my view, the neuropsychological testing supports the conclusion that the plaintiff did not suffer from a brain injury. Though Dr. Spellacy considered that his 2003 testing was valid, he agreed that the invalid testing of the plaintiff in 2006 caused him to be concerned about the 2003 test results. Dr. Schultz refused to consider that a set of invalid testing was informative to any degree. I disagree that the invalid testing is like a “fuzzy X-ray.” The testing is to determine if an individual demonstrates that her brain function is not what it once was. If the testing is invalid, it does not mean there is something wrong with the test; it suggests that there is something suspicious about how the individual is responding to the testing and whether she is applying her best effort to it. It is a factor which must be considered, not simply ignored.
[305] The Fake Bad scale discloses suspicious results, but does not preclude me from determining that the test results of Dr. Spellacy in 2003 and Dr. Schultz in 2006 are valid.
[306] Ultimately, when I consider all of the test results, including the invalid test result, I must conclude that they are equivocal. They do not demonstrate that the plaintiff is or is not suffering from a brain injury. As it is for the plaintiff to prove, on a balance of probabilities, that she suffered a brain injury as a result of the first motor vehicle accident, equivocal evidence does not support her claim.
[307] The evidence of the plaintiff, including the medical evidence, does not persuade me, on a balance of probabilities, that the plaintiff developed a mild traumatic brain injury or post-concussion syndrome after the first accident.
[308] The most persuasive view of the plaintiff’s post-accident experience is described by Drs. Anton and Smith. Dr. Anton suggests that the plaintiff is suffering psychological injuries. Dr. Smith is also of a similar view: adjustment disorder with anxiety, which does not result from injuries sustained in either of the accidents, but arising from her belief that she is cognitively impaired as a result of the accident.
[309] I am not finding that the plaintiff is acting dishonestly. She believes that she is suffering from a brain injury. She is relying on the information she has been provided by her treating physicians. She has not proven on a balance of probabilities that she suffered a brain injury in the first accident. I find it much more likely that the psychological difficulties, including the cognitive, emotional and behavioural problems which the plaintiff has experienced, arose from her reaction to the brain injury diagnosis made by Dr. Ancill in April 2002. I do not accept the plaintiff’s assertion that all of her symptoms had their “genesis” in the motor vehicle accidents.
[310] Ultimately, I find that the injuries suffered by the plaintiff in the first accident are the physical injuries and to some extent the depression described in the evidence. The plaintiff suffered the following injuries as a result of the first motor vehicle accident on November 14, 2001:
1. aggravation of previous soft tissue injuries to her neck, back, shoulders and hips;
2. a contusion to the area above her left knee; and
3. some depression and anxiety (exclusive of that related to the diagnosis of a brain injury) attributable to the pain of her injuries.
(ii) The Second Accident
[311] The evidence concerning whether the plaintiff suffered a mild traumatic brain injury in the second accident is much sparser than even the first. Dr. Ancill agreed that if she did, it was milder than what he had originally diagnosed, based upon the evidence of the plaintiff’s conversation with Ms. Morgan immediately following the accident. Dr. Anton believed that there was a possibility that the plaintiff had suffered a brain injury, but not a probability. Again, it is my view that the plaintiff believes that she suffered a mild traumatic injury in the second accident and that is the cause of her psychological symptoms. The cause of her psychological symptoms is not the second motor vehicle accident. I do not accept the plaintiff’s “genesis” argument in relation to the second accident.
[312] I find that the plaintiff sustained an aggravation of her pre-existing soft tissue injuries in the second accident.
[313] The plaintiff’s claim was based on her having suffered a mild traumatic brain injury in the first accident, exacerbated by the second accident. Her claim for loss of income past and future, most of her claim for future care, her in-trust claims for voluntary services provided by her family, and most of her claims for special damages were based upon her having suffered a mild traumatic brain injury. Having found that she did not suffer a mild traumatic brain injury in the first accident, it is not necessary for me to assess those aspects of her damages. The plaintiff’s claim for non-pecuniary damages was based upon a finding that she suffered a mild traumatic brain injury in both accidents.
[314] None of the parties addressed the damages to which the plaintiff would be entitled absent the brain injury to any great extent during the arguments. The plaintiff did not address that at all. Consequently, my assessment of the plaintiff’s damages relies on the arguments presented by the defendants. The defendants Paul say that the plaintiff should be awarded non-pecuniary damages for her soft tissue injuries, assessed in a range of $60,000 to $80,000. They assert that there should be no award for past or future wage loss. The defendants Brandy say that damages from the second accident should be assessed in the range between $25,000 and $35,000. I was not provided with a great deal of case law to support these assertions.
[315] The defendants Brandy concede that the plaintiff is entitled to a modest award in respect of future care, based on Dr. Anton’s recommendation that she receive help with heavy cleaning, a vocational assessment and some counselling.
[316] The defendants argued that there should be an apportionment of damages in the event that I found for the plaintiff as having suffered a brain injury in the first accident exacerbated by the second accident. I did not take from their argument that apportionment between the accidents was required, if I accepted their range of damages for each accident.
[317] Based upon the submissions before me, I find that the plaintiff’s non-pecuniary damages arising from her injuries in the first accident are $75,000; and her non-pecuniary damages arising from her injuries in the second accident are $25,000. She is entitled to special damages as recommended by Dr. Anton for help with heavy cleaning, vocational assessment and counselling, of $15,000.
[318] The plaintiff submitted a claim for special damages in the amount of $104,186.63. The defendants have agreed to payment of special damages in the amount of $17,131.71. Regarding the remainder of the plaintiff’s claims, I reject the claims for child-minding and prescriptions incurred after the second accident. I allow the claims for past housekeeping services in the amount of $4,000. I also allow the claim for the membership at Harbourview Gym and Pool in the amount of $6,000. I allow the claims for speech language therapy in the amount of $195 and the claim for ambulance and Valley Imaging in the amount of $154.
C. Summary
[319] Liability for the first accident is admitted by the defendants Paul. I find the defendants Brandy negligent and liable for the second accident.
[320] The plaintiff’s claim for a traumatic brain injury is dismissed. In the first accident, I find that the plaintiff suffered an aggravation of previous soft tissue injuries to her neck, back, shoulders and hips; a contusion to the area above her left knee; and some depression and anxiety (exclusive of that related to the diagnosis of a brain injury) attributable to the pain of her injuries. In the second accident, she suffered an aggravation of her pre-existing soft tissue injuries.
[321] The plaintiff is awarded non-pecuniary damages for her injuries in the first accident in the sum of $75,000. She is awarded non-pecuniary damages for her injuries in the second accident in the sum of $25,000. She is entitled to special damages (for help with heavy cleaning, vocational assessment and counselling) in the sum of $15,000. She is also entitled to $4,000 for past housekeeping services, $6,000 for her gym membership, $195 for speech and language therapy, and $154 for ambulance and Valley Imaging costs.
D. Costs
[322] I have not heard any submissions regarding costs. The parties can choose to make written submissions or address costs at an oral hearing. Arrangements can be made with trial division.
“Truscott
J.”
The Honourable Madam Justice Gropper