IN THE SUPREME COURT OF
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Citation: |
A.E. v. D.W.J., |
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2008 BCSC 1318 |
Date: 20081001
Docket: M94302
Registry:
Between:
A. E., by her litigation guardian J. D.
Plaintiff
And
D. W. J.
Defendant
Before: The Honourable Mr. Justice Goepel
Reasons for Judgment
| Counsel for Plaintiff |
F.R. Mullally |
| Counsel for Defendant |
A.D.C. Ross |
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Dates and Places of Trial: |
February 11-15, 18-22, 25-27, 2008 |
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TABLE OF CONTENTS
OVERVIEW ………………………………………………………………………….. [1]
LIABILITY …………………………………………………………………………….. [6]
DAMAGES ……………………………………………………………………………. [18]
A. Introduction ……………………………………………………………………. [18]
B. Pre-Accident History …………………………………………………………. [21]
C. The Accident ………………………………………………………………….. [34]
D. Post-Accident History ………………………………………………………… [37]
E. Access Dispute ……………………………………………………………….. [49]
F. Medical Evidence …………………………………………………………….. [59]
(a) Overview ………………………………………………………………. [59]
(b) Dissociative Identify Disorder ……………………………………….. [62]
(c) Dr. H.D. Cooper ………………………………………………………. [67]
(d) Dr. Richard Bradshaw ……………………………………………….. [80]
(e) Dr. Raymond Ancill …………………………………………………... [90]
(f) Dr. Lawrence Matrick ………………………………………………… [93]
(g) Dr. James Scmidt …………………………………………………….. [98]
(h) Dr. William Hay ……………………………………………………….. [102]
(i) Dr. Stanley Semrau ………………………………………………….. [105]
(j) Dr. Derryck Smith …………………………………………………….. [111]
(k) Dr. Michael Jones ……………………………………………………. [119]
(l) Dr. Neil Longridge ……………………………………………………. [121]
(m) Dr. Bruce Blasberg …………………………………………………… [124]
G. Findings re Medical Conditions …………………………………………….. [126]
H. Findings re Causation …………………………………………………….. [135]
ASSESSMENT OF DAMAGES ……………………………………………………. . [155]
A. Overview ……………………………………………………………………… [155]
B. Non-Pecuniary Damages ……………………………………………………. [159]
C. Past Wage Loss ……………………………………………………………… [165]
D. Future Income Loss …………………………………………………………... [171]
E. Cost of Future Care ………………………………………………………….. [177]
F. Special Damages……………………………………………………………… [192]
SUMMARY ……………………………………………………………………………. [203]
OVERVIEW
[1] This action arises out of a motor vehicle accident that occurred on October 15, 2003 at or near the intersection of 140th Street and102nd Avenue in the City of Surrey, British Columbia. The defendant does not dispute his own negligence, but pleads contributory negligence on the part of the plaintiff.
[2] At the time of the accident, the plaintiff was 30 years old. She was married with three children and had a master’s degree in theology and counselling. She taught music and worked as a counsellor. In addition, she composed and produced her own music. She had recently given birth to her third child and was preparing to return to work. She was also involved in an acrimonious access dispute with her first husband.
[3] In the years since the accident, the plaintiff has presented with an extraordinarily complicated combination of psychiatric disorders. She has been unable to return to work. She is estranged from her husband and children and presently lives in an assisted living facility. One of the medical witnesses indicated that he had assessed many hundreds of individuals who have been involved in similar types of accidents, but he had never seen anyone who had emerged from an accident with such a profound change in their psychological functioning.
[4] The major issue for determination in relation to the assessment of damages is the cause of the plaintiff’s psychiatric decline. The plaintiff submits that all her post-accident difficulties resulted from the accident. The defendant submits that a more likely cause of many of her difficulties is stress arising from the access dispute.
[5] Because of the nature of the plaintiff’s psychiatric disorders and the role that the access dispute has in these proceedings, I have not identified the plaintiff and have used initials to identify most of the witnesses and the plaintiff’s first husband.
LIABILITY
[6]
The intersection of
[7]
The plaintiff was proceeding on
[8] The defendant did not testify at trial. Portions of his examination for discovery were read in as part of the plaintiff’s case. At discovery the defendant testified that he was travelling just under 60 kilometres per hour as he approached the intersection. Approximately three car lengths from the beginning of the intersection he observed the plaintiff’s vehicle approach the intersection and then stop. He says he only proceeded because the plaintiff’s vehicle was stopped. In a statement he gave after the accident, he said he entered the intersection on an amber light. On his discovery, he acknowledged that the light could have been red when he entered the intersection.
[9]
There were two independent witnesses
to the collision. Mr. Fernando was driving the vehicle that the plaintiff
observed stopped in the left-turn lane on
[10]
Mr. Neu was
travelling along
[11] I accept the evidence of Mr. Neu and Mr. Fernando. I find that when the defendant entered the intersection, the light had just turned red. As acknowledged by his counsel, the defendant was clearly at fault.
[12] The more difficult question is whether the plaintiff was contributorily negligent. Although she had the right of way, she still had a duty to proceed with due care. Fraser J. reviewed the authorities in Nelson (Public Trustee of) v. Shinske (1991), 62 B.C.L.R. (2d) 302 (S.C.) and concluded at ¶20:
I conclude that the law can be stated as follows:
(1) Users of the streets are entitled to proceed upon the assumption that other users of the streets will observe traffic regulations;
(2) The right to drive or walk on that assumption is not an absolute one;
(3) There is no obligation, as one proceeds, to maintain special precautions for an unforeseen emergency or a mere possibility;
(4) If, on the other hand, the possibility of the danger which in fact materialized is reasonably apparent, the failure to take precautions is negligence.
[13]
The governing principles are set out
in Pacheco (Guardian ad litem) v. Robinson
(1993), 75 B.C.L.R. (2d) 273 (
In my opinion, when a driver in a servient position disregards his statutory duty to yield the right of way and a collision results, then to fix any blame on the dominant driver, the servient driver must establish that after the dominant driver became aware, or by the exercise of reasonable care should have become aware, of the servient driver's own disregard of the law, the dominant driver had a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself. In such circumstance any doubt should be resolved in favour of the dominant driver. As stated by Cartwright, J. in Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.) at p. 461:
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While the decision of every motor vehicle collision case must depend on its particular facts, I am of opinion that when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way and a collision results, if he seeks to cast any portion of the blame upon B, the driver having the right-of-way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A's disregard of the law B had in fact a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali. |
[14] When the plaintiff commenced her turn, she had the green light and the right of way. The light, however, had just turned green. In such circumstances, the plaintiff should have kept a lookout to make certain that the intersection was clear before commencing her turn. The plaintiff recognized this obligation and testified that she had in fact looked to her left before commencing her turn. If she had done so, she would have seen the defendant, just as the defendant saw her. The defendant’s vehicle was there to be seen. The fact that she did not see the defendant’s vehicle leads me to conclude that she in fact did not look, as she should have, before commencing her turn. This is not a case where the light was green for an extended period. The light had just turned green and the plaintiff should have looked to her left before entering the intersection to make sure all traffic had cleared the intersection.
[15] I find the plaintiff’s negligence contributed to the accident.
[16]
Having found that each party is at fault,
it is necessary to apportion fault between the parties. In the context
of the Negligence Act, R.S.B.C. 1996, c. 333, "fault"
means blameworthiness: Cempel
v. Harrison Hot Springs Hotel Ltd. (1997), 43 B.C.L.R.
(3d) 219 (C.A.). Fault is to be determined by assessing the nature and
extent of the departure from the standard of care of each of the parties:
Alberta Wheat Pool v. Northwest Pile Driving Ltd. (2000), 80
B.C.L.R. (3d) 153 (
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The nature of the duty owed by the tortfeasor to the injured person; |
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The number of acts of fault or negligence committed by a person at fault; |
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The timing of the various negligent acts. For example, the party who first commits a negligent act will usually be more at fault than the party whose negligence comes as a result of the initial fault; |
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The nature of the conduct held to amount to fault. For example, indifference to the results of the conduct may be more blameworthy. Similarly, a deliberate departure from safety rules may be more blameworthy than an imperfect reaction to a crisis; |
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The extent to which the conduct breaches statutory requirements. For example, in a motor vehicle collision, the driver of the vehicle with the right of way may be less blameworthy; |
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The gravity of the risk created; |
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The extent of the opportunity to avoid or prevent the accident or the damage; |
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Whether the conduct in question was deliberate, or unusual or unexpected; and |
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The knowledge one person had or should have had of the conduct of another person at fault. |
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[17] In this case, the defendant made a deliberate decision to run a red light. His actions precipitated the accident. While the plaintiff should have seen the defendant’s vehicle and possibly could have avoided the accident, the defendant’s departure from the standard of care was much greater. His conduct created the risk and the greater blame for the accident must fall on him. I apportion fault 90% to the defendant and 10% to the plaintiff.
DAMAGES
A. Introduction
[18] The assessment of damages arising from this significant, but not catastrophic, motor vehicle accident is a most difficult task. In the course of the trial, I heard evidence from five psychiatrists, two psychologists and a neurologist, together with other medical experts. While the parties agree that the plaintiff suffers from a psychiatric illness, they are divided as to the nature of that illness and, more importantly, whether it was caused by the motor vehicle accident. The task of assessing damages is made even more difficult because the plaintiff’s experts themselves are not in agreement and presented, as part of the plaintiff’s case, conflicting assessments of the plaintiff’s condition.
[19] The major matters in dispute are whether the plaintiff suffered a brain injury in the accident and, if she did, how that injury has subsequently impacted her life and whether the plaintiff has Dissociative Identity Disorder and, if she does, whether it was caused by the accident and how it will it impact her future.
[20] In order to put the medical evidence in context, it is first necessary to review the plaintiff’s life before the accident, her recollections of the accident, the immediate aftermath of the accident, her life since the accident and the access dispute between the plaintiff and her first husband. I will then review the medical evidence, make findings concerning the plaintiff’s medical condition, determine the extent to which the plaintiff’s medical condition was caused by the accident and then assess damages.
B. Pre-Accident History
[21]
The plaintiff grew up in
[22] At age 14, the plaintiff was placed in foster care. The following year she returned home briefly on the condition that her grandmother moved out of the house. This arrangement lasted only a short while. The plaintiff’s mother began living with a man who was also emotionally abusive to the plaintiff. The plaintiff again returned to foster care and was living in foster care when she graduated from high school.
[23] Despite her unhappy home life, the plaintiff excelled in school. She won several academic awards and graduated from high school with honours at age 16. She also excelled in music and won numerous musical awards. She played several instruments, including the piano and guitar, and was a member of the school band.
[24]
Following high school, the plaintiff
moved to Abbotsford where she attended Summit Pacific Institute. While
earning her bachelor’s degree, she supported herself by working in the school
library and teaching music. She then went on to
[25] After leaving home, the plaintiff had very little contact with her mother or grandmother. She would on occasion speak to her younger sister. She last saw her mother at age 18 when her mother attended her graduation from Summit Pacific and “created a scene”.
[26] The plaintiff met her first husband, R.H., at church while she was studying for her master’s degree. They appeared to have many common interests and married in April 1994. Their child, K., was born on October 23, 1996.
[27] In March 1997, the plaintiff separated from R.H. after she learned that he had been engaging the services of prostitutes. Following the separation, she was concerned that she might have contracted a sexually transmitted disease from R.H and ultimately she attended some counselling sessions to help her deal with the separation.
[28] After separating from R.H., the plaintiff successfully set out to rebuild her life. She and K. moved into a basement suite. For a time she survived on social assistance. Over the course of the next two years, she was able to obtain work teaching music and ultimately was able to support herself independently through teaching and counselling.
[29] In 1999, she met her present husband, J. E. when he purchased music and voice lessons at an auction, which the plaintiff had donated. They quickly fell in love and were married in September 1999.
[30] After their marriage, the plaintiff continued working as a music teacher and counsellor while J.E. enrolled at Trinity Western for his bachelor degree in psychology. They planned to each obtain PhD’s in psychology and ultimately to open a counselling practice together.
[31] In April 2000, their son J. was born. The plaintiff worked right up until J.’s birth and after taking five weeks off to recover, returned to work as a counsellor and music teacher. She taught piano, classical guitar, voice, theory and composition. As a counsellor, she earned $35 an hour and was paid $100 per hour for doing seminars. Most of her counselling work involved children. In addition, the plaintiff composed and produced her own music. On occasion, she would give public performances. The plaintiff had a dream of being a Christian recording artist and both she and J.E. spent a long period of time studying the music industry and building a business model to promote her music career.
[32] On August 15, 2003, the plaintiff’s third child, A. was born. The plaintiff again worked right up until delivery. She planned to take eight weeks maternity leave. At the time of the motor vehicle accident she was still on maternity leave, but planning to soon return to work.
[33] Evidence was called from several friends of the plaintiff. They all described her, pre-accident, as an engaging, motivated, high functioning, well organized individual who was involved in many activities. In addition to her work as a counsellor and music teacher, she home schooled her children, wrote music, organized concerts and was active in her church. One witness described her as a “superwoman” and all noted, some quite emotionally, the vast changes in her after the accident.
C. The Accident and Immediate Aftermath
[34] The plaintiff has a good recollection of the accident. At the time of the collision, there was a loud bang and her head swung backwards. She recalls seeing a part of a bumper flying down the road past her. She recalls screaming aloud. Following the collision, she attempted to control her car. She recalls seeing a man at her car door who she originally believed was trying to attack her.
[35] After the accident, she was confused and believed that her baby had been in the car. She asked people at the scene of the accident to help her look for her baby. She recalls seeing a woman in brown pants and a red shirt who told her that her car was not hit. She now believes that woman did not exist. The plaintiff has no recollection of losing consciousness.
[36]
At the scene, the plaintiff was treated
and then transported by ambulance to
D. Post-Accident History
[37] The plaintiff was discharged from Surrey Memorial after being examined in the emergency room. In the days following the accident, the plaintiff spent much of her time lying on the couch or in bed. She suffered from nausea and had pain all over her body, dizziness and headaches. Her pain complaints were mainly focused on her arm, head and neck. She began hearing voices. She was not functional. She did not cook meals or do any of the things one would do if feeling well. She was unable to handle her children. She could not cope with their talking, bouncing or jumping. She was dismissive of her children’s needs. As J.E. was still a full-time student, arrangements were made for others to look after the children.
[38] Over time, the plaintiff’s condition did not improve. She continued to complain of neck pain, head pain and headaches. Her behaviour became erratic. She shut J.E. and her children out of her life. She would become explosive and angry in contexts that did not fit. Occasionally she began talking to J.E. in a child’s voice. She began to show signs of depression. She talked about her losses and her inability to continue to play the guitar or the piano. She would cry a lot and talk about her lost future, lost career and lost dreams.
[39] On many occasions, the plaintiff would be unable to maintain a conversation. She would have emotional breakdowns where she would collapse on the floor and cry her eyes out, unable to move for 15-20 minutes straight. She became scared to leave her house, even to go down the street to pick up her mail. She would play video games for 13-14 hours at a time.
[40] The plaintiff was unable to remember simple matters. For example, she would put the same ingredients in a recipe several times. She and J.E. would watch a movie. At the end of the movie, she would go to the bathroom, return and on seeing the movie case sitting on the coffee table would say: “We should watch that”, having no recollection that she had just seen it. In mid-conversation, she would sometimes change the topic and have no recollection of the earlier topic that had been discussed.
[41] Prior to the accident, the plaintiff handled all the family finances. In the immediate aftermath of the accident, she continued to try to do so, but with little success.
[42] The plaintiff has not worked since the accident.
[43]
There were fluctuations in the plaintiff’s
condition. By the end of 2005, she was reporting some improvement.
Thereafter her condition began to spiral downward. She suffered from
significant depression. In the fall of 2006, she began talking about
suicide. In October 2006, she was admitted to
[44]
Upon discharge from
[45]
In August 2007, the plaintiff was moved
to Brookswood Manor, another assisted living facility,
after staff at Bodie House indicated that they did
not have the necessary resources to fully monitor the plaintiff’s care.
She remained at Brookswood until December 19, 2007
when she was admitted to the psychiatric ward at
[46]
The plaintiff was discharged from
[47] In July 2007, J.E. and the children moved to Squamish, B.C. where he is now employed. Since the plaintiff has been in assisted living, he has regularly brought the children to visit. The visits are difficult. The plaintiff’s behaviour with the children is not consistent. Sometimes she will play with them as if she was herself a child and on other occasions she will largely ignore them. J. E. does not believe that the plaintiff is capable of looking after the children and he would not trust her to be alone with them.
[48] Since the accident there have been difficulties between J.E. and the plaintiff. J.E. testified that he and the plaintiff no longer have any real relationship. He expects that legally, at some point, they will no longer be married. That said, he promises to continue to support her.
E. The Access Dispute
[49] In the months immediately following their separation in March 1997, the plaintiff allowed R.H. access to K. She always ensured that she or a friend was present when R.H. exercised his access.
[50]
Following the separation, R.H. remained
in
[51]
In August 2002, R.H. returned to
[52] The plaintiff described this incident as shocking and embarrassing, as well as stressful. The plaintiff was concerned that this was K.’s initial interaction with her father and it was not pleasant.
[53] Three months after the swimming pool incident, R.H. served the plaintiff with court documents seeking access and joint parenting. The plaintiff stated that she was served at work and her initial reaction was shock. She retained a lawyer to contest R.H.’s application.
[54] The plaintiff testified that she was not unduly stressed or anxious in regards to R.H.’s court applications. She testified that she was never concerned that R.H. would be granted access, as he had been out of the picture for so long that access was not a realistic option. She testified that she believed that the courts would deny R.H. access or, at the most, allow supervised access. She testified that her main concern with respect to R.H.’s application was for her daughter.
[55] While the plaintiff testified that she was not concerned about the access application, affidavits filed by the plaintiff in the access action paint a different picture. In the affidavits, the plaintiff swore that R.H. had harassed her for several years. She said in 1999 that she was concerned with her safety after an incident of vandalism at her house. She swore that R.H. had a 15-year history of inappropriate sexual behaviour towards females and had stated to professionals and his mother that he was unable to control his sexual urges. In December 2002, she swore that she did not believe it beneficial for her daughter to have any contact with R.H. due to his history of mental and emotional instability and because he had sexually compulsive behaviours and addictions. She swore that the defendant’s compulsive sexual behaviour and addiction were relevant to K.’s safety.
[56] Over the plaintiff’s objection, a judge of this Court ordered that Dr. Krywaniuk be retained to conduct an investigation and prepare a report as to the appropriateness of R.H. having access. The order was made on October 10, 2003, just five days before the motor vehicle accident.
[57] On December 16, 2003, as part of his investigation, Dr. Krywaniuk met with the plaintiff and J.E. In an affidavit sworn on September 23, 2004, the plaintiff deposed that during the meeting Dr. Krywaniuk advised them “this might not go well for you” and implied that the plaintiff had turned her daughter against her biological father. He also suggested that the plaintiff and J.E. had coached K. concerning what she should tell Dr. Krywaniuk.
[58] Ultimately, R.H. was denied access and he consented to J.E. adopting K. R.H. has however continued to cause disruptions. In 2005, the plaintiff obtained a restraining order against him. There was evidence of some still ongoing legal disputes between them.
F. Medical Evidence
(a) Overview
[59] Subsequent to the accident, the plaintiff first sought medical treatment from her family practitioner, Dr. Cooper. In September 2004, she began to receive treatment from a psychologist, Dr. Bradshaw. Dr. Bradshaw continues to treat the plaintiff and as of the date of trial had seen her on 136 occasions. Dr. Ancill, a psychiatrist, began treating the plaintiff in 2005 on a referral from Dr. Cooper. Dr. Ancill saw the plaintiff on twelve occasions between March 4, 2005 and November 29, 2006. In 2007, Dr. Matrick became the plaintiff’s treating psychiatrist. He first saw her on May 23, 2007 and as at the date of trial had seen her on seven occasions.
[60] In addition to her treating physicians, the plaintiff has been examined by several other physicians who have assessed her for the purposes of this litigation. Those doctors include a clinical psychologist, Dr. Schmidt; three psychiatrists, Dr. Smith, Dr. Hay and Dr. Semrau; an otologist, Dr. Longridge; a neurologist, Dr. Jones and a dentist, Dr. Blasberg. All of the treating and referral physicians provided reports and testified, except for Dr. Blasberg, whose report was filed as an exhibit at trial.
[61] While there is general agreement among the various doctors that the plaintiff’s mental state has deteriorated, they have differing views concerning the injuries that she suffered in the accident and whether all her present difficulties are due to the accident. In particular, the doctors are not in agreement as to whether the plaintiff suffered a brain injury in the accident and, if she did, the seriousness and duration of that brain injury. There is also some disagreement as to whether the plaintiff suffers from Dissociative Identity Disorder and, if she does, whether it was caused by the accident.
(b) Dissociative Identity Disorder
[62] Before reviewing the evidence of the individual doctors and in order to put some of the medical evidence in context, it is necessary to first briefly discuss Dissociative Identity Disorder (“DID”). DID was formerly known as Multiple Personality Disorder. Although controversial, DID is now a recognised diagnosis within the psychiatric community. It is however a condition seldom seen in regular psychiatric practice and the diagnosis of DID is often not made until symptoms have persisted for an extended time.
[63] The condition appears to be caused by exposure to extreme trauma in early childhood. Persons who have the condition develop it in childhood as a means of dealing with extreme stress. Thereafter, while the condition may remain in a dormant state for many years, a person with DID remains vulnerable to a reoccurrence. The types of stressors most likely to be causative of a DID breakdown tend to have a psychological similarity to the original emotional trauma that created the DID vulnerability. None of the medical professionals who testified were aware of any other case, either in their own practice or in the medical literature, in which DID had been triggered by an automobile accident.
[64] The essential feature of the disorder is the disruption in the usually integrated functions of consciousness, memory, identity or perception. The criteria for the diagnosis include the presence of two or more distinct identities or personality states and that at least two of these identities or personality states recurrently take control of the person’s behaviour. The person suffering from DID cannot recall personal information that is too extensive to be explained by ordinary forgetfulness.
[65] Dr. Bradshaw has identified 31 different alternate personalities (“alters”) that have emerged during his treatment of the plaintiff. The plaintiff’s alters range in age from very young children to adults. J.D., the plaintiff’s good friend and litigation guardian, gave evidence of observing about a dozen alters. They include a young child of about three years old who likes pretty things, bows, ribbons and her puppy dog; a sexy teenager who likes to flirt and get the boys’ attention; Trixy, who likes to play tricks on people; a Depressed teenager and “the Monster,” who the plaintiff describes as a war in her head. Some of the alters refer to J.D. as “mommy” or “Aunty J.”
[66] Once DID is triggered, the condition has a momentum of its own and the best of therapy can only try to slow its pace. Over the medium to long term, persons with DID can be treated and return to good mental health and be able to fully function in society.
(c) Dr. H. D. Cooper
[67] Doctor Cooper has been the plaintiff’s family physician since 1999. His report is dated February 21, 2005.
[68] Dr. Cooper saw the plaintiff on October 17, 2004, two days after the accident. She reported head pain, neck pain, stiffness in her upper back and shooting pains in her left hand all the way up to her elbow. She also reported tingling in her face. Dr. Cooper’s assessment was a neck and back strain, as well as a soft tissue injury to her left hand. He advised her to attend physiotherapy and take pain medication, such as Advil and Tylenol 3 as needed.
[69] Dr. Cooper next saw the plaintiff on October 24, 2003. At that time she reported increasing difficulty in concentrating and finishing sentences. She reported hearing voices whispering when there was no one else present. She was worried about her music students, her own musical career, the therapy clients and her ability to care for her own children. Dr. Cooper’s assessment was that she was having an acute stress reaction to the motor vehicle accident.
[70] On October 26, 2003, the plaintiff went to the ER of the Langley Memorial hospital complaining of bleeding from her rectum. The attending physician’s provisional diagnosis was of fecal impaction.
[71] Dr. Cooper continued to see the plaintiff on a regular basis. By mid-November 2003, he noted that the plaintiff had continued symptoms of headache, weakness, nausea and was noted to be tearful. He prescribed anti-anxiety medications for what he felt was an acute anxiety reaction. He noted the plaintiff was continuing to have problems with focusing, concentration, dealing with lists, thought development and memory. She also complained that her fine motor skills had decreased in her left hand. There were also complaints noted in relation to disrupted sleep. Dr. Cooper’s assessment was still soft tissue injuries to the back, neck and hand, as well as an adjustment reaction and hypertension.
[72] On December 5, 2003, the plaintiff reported some temporo-mandibular joint (“TMJ”) symptoms, including a clicking sensation on the left side and an “off” feeling on her right side. She also complained for the first time of clumsiness and ringing in her ears.
[73] Over the course of the first year post-accident, the plaintiff complained to Dr. Cooper of ear pain, which he felt may be TMJ dysfunction, left-sided head pain, tinnitus and cognitive impairments including difficulty completing sentences, memory and fatigue. She was noted to be occasionally dizzy, disorientated and clumsy. She also continued to complain of soft tissue injury pain and anxiety. Although the plaintiff’s complaints were regular, they did tend to fluctuate in terms of intensity and presentation.
[74] On March 10, 2004, the plaintiff reported having continual painless fresh blood passing via her rectum. Dr. Cooper referred her to a general surgeon for further examination. She attended on Dr. Shirley, a local general surgeon, on October 14, 2004 for assessment of her rectal bleeding. Dr. Shirley felt the bleeding was possibly caused by an intermittent anal fissure.
[75] Towards the end of 2004, the plaintiff began seeing Dr. Bradshaw, a psychologist, for her anxiety complaints. She reported to Dr. Cooper that the sessions with Dr. Bradshaw had decreased her anxiety. However, she continued to display symptoms of acute anxiety. Dr. Cooper began to suspect a closed head injury. He felt that the plaintiff’s symptoms were continuing and becoming more complicated and, ultimately, he felt he could no longer manage that portion of her care. He referred the plaintiff to Dr. Ancill, a psychiatrist practising in Abbotsford.
[76] In a report dated February 21, 2005, he diagnosed the injuries suffered by the plaintiff in the accident to be: adjustment reaction with anxiety and depression, with possible post traumatic stress syndrome, traumatic stress syndrome, soft tissue injuries to her neck, upper back, left thumb and hand, bilateral TMJ strains, a possible concussion and closed head injury, and hypertension.
[77] Dr. Cooper continues to be the plaintiff’s general physician. He testified that the plaintiff still exhibits some symptoms of anxiety, depression, post-traumatic stress disorder (“PTSD”), as well as soft tissue injury complaints in the neck, upper back and left hand. She is also noted to have persistent symptoms of jaw pain.
[78] In cross-examination, Dr. Cooper confirmed that the plaintiff had two incidents, pre-accident, involving either irritable bowel syndrome or bleeding in the rectal area. The first incidence was in December 1999 and may have been related to haemorrhoids or an anal fissure due to the fact the plaintiff was pregnant. There was a second incident in October 2001, which did not involve rectal bleeding, which was thought to be related to possible irritable bowel syndrome.
[79] Dr. Cooper was not aware until shortly before the trial that the plaintiff had admitted to harming herself in the rectal area following the automobile accident. He could not say if the pre-accident complaints of rectal bleeding or the complaints immediately after the accident were related to self-harming behaviour. The plaintiff had not discussed with Dr. Cooper her access dispute with R.H.
(d) Dr. Richard Bradshaw
[80] Dr. Bradshaw is a psychologist. He has been treating the plaintiff since September 2004. As at the time of the trial, he had seen the plaintiff on 136 occasions. He has filed seven reports. Those reports are dated January 27, 2005, June 4, 2006, November 12, 2006, December 12, 2006, January 18, 2007, May 28, 2007 and December 6, 2007.
[81] Dr. Bradshaw’s initial assessment was that the plaintiff was suffering from chronic PTSD, a cognitive disorder, not otherwise specified, and depression. She was exhibiting symptoms of dissociation as well as symptoms of post-concussion disorder.
[82] In his report of June 4, 2006, Dr. Bradshaw began by noting that in early 2006 the plaintiff had a suicidal crisis and an exacerbation of her dissociative symptoms which had rendered her unable to function coherently. As of June 4, 2006, Dr. Bradshaw felt that the plaintiff’s chronic PTSD symptoms were resolving. He noted that in terms of dissociation the plaintiff continued to experience rapid and often unpredictable shifts in emotional states, incoherent thoughts, short attention span and an inability to clearly focus and stay on task throughout the day. The symptoms were characteristic of disruption in the plaintiff’s executive functions.
[83] Dr. Bradshaw opined that the plaintiff’s recovery had been prolonged as a result of her history of abusive experiences as a child and spousal abuse as an adult. He noted that the plaintiff’s mother and maternal grandmother had been emotionally and physically abusive to her and that the plaintiff’s first husband had engaged in emotional abuse.
[84]
Dr. Bradshaw’s report of November 12,
2006 was generated following the plaintiff’s hospitalization at
[85] In his report of January 18, 2007, Dr. Bradshaw opined that the plaintiff’s condition at that time impaired her ability to comprehend what was going on around her in a consistent and logical way. She had difficulty maintaining concentration and remembering information from day to day. He noted degeneration in her ability to function in life and felt she was no longer capable of instructing counsel.
[86] In his report of May 28, 2007, Dr. Bradshaw noted that the plaintiff was not capable of semi-independent living due to the intermittent nature of her capabilities. He felt she needed more time in a facility such as Bodie House in order for her alters to further integrate independent living.
[87] In his last report which was dated December 6, 2007, Dr. Bradshaw noted that except for an intense startle reflex, most of the plaintiff’s PTSD symptoms are now resolved. In terms of her disassociation, she continues to experience unpredictable shifts in emotional states, incoherent thoughts, a short attention span and an inability to focus and stay on task. She has however experienced, as a result of psychotherapy, considerable integration resulting in a reduction in the severity of her dissociative condition.
[88] Dr. Bradshaw believes the plaintiff’s DID has prolonged her recovery, severely complicated her treatment and limited her prognosis. He anticipates that it will require five to seven years of therapy for the plaintiff to recover from DID. He expects that it is unlikely she will ever be able to be again gainfully employed. He doubts that she will ever be able to reside in a normal fashion with her children or have a normal relationship with her spouse. He did hope she would recover sufficiently to live semi-independently.
[89] Dr. Bradshaw opined that if it were not for the motor vehicle accident, the plaintiff would still be a productive member of society working as she had been prior to the accident. He was of the view that prior to the accident she was able to cope with any dissociation she was experiencing and that the major dissociative disruption she has experienced would not have occurred absent the motor vehicle accident. While acknowledging that the access dispute was likely upsetting and stressful to the plaintiff, in Dr. Bradshaw’s opinion it did not cause the reaction that followed the motor vehicle accident.
(e) Dr. Raymond Ancill
[90] Dr. Ancill was the plaintiff’s treating psychiatrist from March 4, 2005 through to December 2006. During that time he saw her on 10 occasions. He has filed two reports. Those reports are dated September 25, 2006 and December 15, 2006.
[91] Dr. Ancill opined that the plaintiff suffered a concussive brain injury in the motor vehicle accident. He believed her continuing psychiatric deterioration was related to the brain trauma. In March 2006, he noted a worsening in the plaintiff’s condition and diagnosed her with depression. He further opined that the plaintiff suffered from a pain disorder.
[92] Dr. Ancill believed it unlikely that the plaintiff would fully recover or ever return to her previous employment. He had no knowledge of the plaintiff’s self-harming behaviour nor was he aware of the access battle with her former husband. Dr. Ancill did not note any symptoms of disassociation. He believed that the root cause of all her difficulties was a brain injury suffered in the motor vehicle accident.
(f) Dr. Lawrence Matrick
[93] Dr. Matrick is currently the plaintiff’s treating psychiatrist. He first saw the plaintiff on May 23, 2007 and has since seen her on 6 additional occasions. His report is dated June 27, 2007.
[94] Dr. Matrick has diagnosed the plaintiff as suffering from a major depressive disorder of a chronic nature, as well as PTSD. He is treating the depressive disorder with medications. He acknowledged that at the time of the trial her PTSD was in partial remission. He also was of the opinion that she suffered a cognitive disorder and certain personality changes, which Dr. Matrick attributed to either a traumatic brain injury or DID. He also diagnosed a pain disorder.
[95] Dr. Matrick believes the plaintiff will require ongoing psychiatric treatment indefinitely. She should remain on antidepressants and other anti-anxiety agents as prescribed. He believes she is severely limited in regard to providing for herself on an independent basis. She is presently incapable of employment.
[96] He acknowledged that in recent months the plaintiff has reported some improvement in her pain disorder following some adjustments in her medications. He agreed that as her pain problems improved, her overall psychiatric condition would likely improve.
[97] Dr. Matrick has not observed any symptoms of dissociation. He had limited knowledge of the access dispute. He agreed that the access dispute could have caused the plaintiff stress, but opined that the plaintiff like other individuals would likely have been able to cope with the stress of the access litigation, absent the additional stresses of the motor vehicle accident.
(g) Dr. James Schmidt
[98] Dr. Schmidt, who was called by the plaintiff, is a clinical psychologist and was qualified to provide opinions in the area of psychological assessment and treatment, as well as opinions as to the cause of psychological injuries and their prognosis. He saw the plaintiff on two occasions in March of 2006. His report is dated June 8, 2006.
[99] Dr. Schmidt administered a series of tests to assess the plaintiff’s cognitive and personality functioning. He found that the plaintiff performed well within the expected ranges on all areas of cognitive testing. Her personality test results showed a significant level of emotional disruption, including elements of anxiety, depression and irritability, together with a more generalized disruption of adaptive functioning.
[100] Dr. Schmidt concluded that while it was possible that the plaintiff suffered a mild traumatic brain injury (“MTBI”) that caused some transient problems, he did not believe that a brain injury was contributing to her problems when he examined her. He believed that at the time of the accident the plaintiff was performing at a very high level that placed extremely high demands on her resources. He opined that the accident had disrupted her level of performance and this deterioration in her functioning caused her levels of anxiety and depression to increase, as she focused on what she could no longer do. Her problems were compounded because of her mistaken belief that she had suffered a serious brain injury that caused most of her problems, so there was nothing she could do to improve her condition. This circle of negative emotions fed upon itself and further decreased her ability to cope.
[101] Dr. Schmidt did not know the particulars of the access dispute when he examined the plaintiff. He agreed that persons involved in family litigation often suffered stress and anxiety. He testified that he had never seen a patient involved in such litigation develop such profound mental illness as seen in the plaintiff.
(h) Dr. William Hay
[102] Dr. Hay was qualified as an expert in psychiatry. Although he had been initially retained to provide a report to ICBC, he was called by the plaintiff. He examined the plaintiff on July 25, 2007 and on August 29, 2007. His report is dated October 27, 2007.
[103] Dr. Hay diagnosed the plaintiff as suffering from a cognitive disorder not otherwise specified, a major mood disorder, depression and a pain disorder with psychological factors. He believed that the plaintiff had predisposing factors of a somewhat overachieving type. The accident had challenged her view of herself and, psychologically, she believes that if she cannot return to her previous level of functioning she has nothing. He believed that she had objectively more capabilities than she subjectively realized.
[104] Dr. Hay did not believe that the plaintiff was suffering from DID, although she had some symptoms of dissociation. He did not believe her reported childhood abuse was sufficiently traumatic to trigger DID.
(i) Dr. Stanley Semrau
[105] Dr. Semrau is an expert in forensic psychiatry. He was called by the defence. He interviewed the plaintiff on three occasions: November 16, 2006, December 18, 2006 and January 22, 2008. His report is dated January 30, 2008. In his report, Dr. Semrau noted:
At the outset it needs to be made abundantly clear that [the plaintiff’s] psychiatric history and presentation is extremely unusual and complex, far more so than for the vast majority of other patients I have assessed in my career, whether personal-injury-related or otherwise. Unfortunately this makes certain or simple conclusions regarding key issues including diagnosis and causation absolutely impossible.
[106] Dr. Semrau believes that the plaintiff suffers from both PTSD and DID. He believes that the PTSD and DID diagnoses provide a reasonably full explanation for the range of the plaintiff’s emotional/mental symptoms without invoking additional diagnoses, recognizing that depression, anxiety and altered behaviour patterns to some significant degree are virtually always features of those disorders. He believes that the plaintiff suffers from a pain disorder and that the pain disorder has likely been caused by the combination of the secondary effects of her PTSD and DID. He believes that the plaintiff may have suffered a very minor MTBI, but that any clinically significant effects of the MTBI resolved fairly soon after the motor vehicle accident.
[107] Dr. Semrau believes that the motor vehicle accident is the cause of her PTSD. He believes that she has made good progress in regard to her PTSD symptoms and that a substantial resolution from those symptoms is likely.
[108] In regard to the DID, Dr. Semrau believes that the key causative factor was the access dispute and the stress of dealing with R.H.’s effort to gain access to K, which have been continued and strongly reinforced by the estrangement from her family. He notes that the type of stressor most likely causative of a DID breakdown tends to be psychologically similar to the original emotional trauma that created the DID vulnerability.
[109] In this case, there is a similarity between the plaintiff’s childhood abuse and the danger that her daughter might be potentially exposed to neglect or abuse by R.H. He opines that while the motor vehicle accident may have played a significant aggravating role, it was likely not a sufficient cause on its own to have triggered the occurrence of the plaintiff’s DID. In Dr. Semrau’s opinion, the DID has been so grossly disproportionate to the motor vehicle accident that if it was indeed the trigger, then the plaintiff would have had to be in an extraordinarily fragile state before the motor vehicle accident to make it likely that she would have sooner or later developed DID in any event.
[110] Dr. Semrau testified that DID is something from which a person can recover, but the process must run its course. He opined that 10 years from now he expected that the plaintiff would be quite well recovered and substantially functional.
(j) Dr. Derryck Smith
[111] Dr. Smith is also a psychiatrist. He was called by the plaintiff. He interviewed the plaintiff on February 20, 2006, December 1, 2006 and November 15, 2007. His reports are dated February 26, 2006, December 9, 2006, February 28, 2007, May 25, 2007 and December 17, 2007.
[112] In his initial report of February 26, 2006, Dr. Smith opined that the plaintiff suffered from PTSD, a cognitive order not otherwise specified, an MTBI, pain syndrome and hypertension. He believed that the plaintiff’s condition was improving and he was cautiously optimistic her condition would continue to improve.
[113] Dr. Smith next interviewed the plaintiff in December 2006. He found that her condition had seriously deteriorated.
[114] In his December 9, 2006 report, Dr. Smith concluded that whatever might be the causes, the plaintiff was seriously impaired. He opined that she met the criteria for PTSD, depression and possibly an obsessive/compulsive disorder. While still of the view that the plaintiff may have suffered an MTBI, he felt that her clinical presentation was out of all proportion to any sequelae from a brain injury. On cross-examination, he agreed that the plaintiff’s cognitive test results were not consistent with a structural organic brain injury. Dr. Smith believed that her current presentation could be attributed to psychiatric illness, having features of both depression and anxiety.
[115] In his final report of December 17, 2007, Dr. Smith noted that he had assessed hundreds of individuals who had been involved in similar type accidents, but had never seen anyone who had emerged with such a profound change in their psychological functioning. He diagnosed her as suffering from PTSD, now in partial remission, depression and DID. He believed that DID was likely the most impairing condition facing the plaintiff. He did not believe that she was cognitively impaired.
[116] Dr. Smith testified that DID results from exposure to extreme trauma in early childhood. He said the condition had been present since childhood and that the plaintiff would remain vulnerable to it throughout her lifetime.
[117] Dr. Smith testified that he disagreed with Dr. Semrau’s conclusion that the DID arose as a result of the access dispute. In his opinion, the problems with DID emerged in the aftermath of the motor vehicle accident and were not temporally related to the access issues. He acknowledged that he was unaware of any case where DID had arisen from a single traumatic event, such as a motor vehicle accident.
[118] Dr. Smith acknowledged that he had not raised the access dispute with the plaintiff as he knew nothing about it at the times he interviewed the plaintiff. He agreed that it would be potentially a source of serious stress for the plaintiff that her daughter was facing the potential of dealing with an abusive or neglectful parent, a situation similar to that with which the plaintiff dealt while growing up. He agreed that in coming to his diagnosis, it would be important to him to know of all potential stressors impacting the plaintiff. He also agreed that it was theoretically possible that the access dispute could have led to the plaintiff’s DID.
(k) Dr. Michael Jones
[119] Dr. Jones is a neurologist. He was called by the defence. He saw the plaintiff on August 22, 2006 and his report is dated the same day. He testified that from the perspective of a neurologist, he could not ascribe an organic diagnosis to any of her complaints. He was of the opinion that almost all of her symptoms were psychologically derived. He believed that depression and anxiety explained most of her on-going list of self-reported symptoms and the diagnosis of PTSD accounted for her current level of dysfunction.
[120] He did not agree with the suggestion that her symptoms were as a result of post concussion syndrome or a traumatic brain injury. In this regard he noted that she had a good memory of the accident and its aftermath. He could find no organic explanation for the pain and dysfunction she reported in her left arm, hand and index finger.
(l) Dr. Neil Longridge
[121] Dr. Longridge is an otolaryngolist who specializes in the evaluation of tinnitus, hearing loss and dizziness. He was called by the plaintiff. He examined the plaintiff on September 20, 2006 and prepared a report dated October 30, 2006.
[122] Dr. Longridge opined that the plaintiff was suffering from tinnitus and visual vestibular mismatch. The latter was the cause of her dizziness complaints. He noted that the first complaints recorded by Dr. Cooper concerning tinnitus and dizziness were on December 5, 2003, some 6 weeks after the accident, and he felt that both conditions were caused by the motor vehicle accident.
[123] In his report he noted that if tinnitus comes on within 6 months of an accident, the accident is the likely cause. He acknowledged that there was no scientific support for that conclusion and that tinnitus can come on spontaneously. He also acknowledged that his speciality recognizes stress as a cause of dizziness, but that he personally does not agree that stress can cause dizziness.
(m) Dr. Bruce Blasberg
[124] Dr. Blasberg is a dentist and certified specialist in oral medicine. He examined the plaintiff on January 31, 2006 and prepared a report dated June 11, 2006. His report was filed by the plaintiff and the defence did not require his attendance at trial.
[125] Dr. Blasberg’s opinion was that the plaintiff suffered from mild myofascial pain of the masticatory muscles and TMJ arthralgia (joint pain). He opined that the plaintiff’s injury was most constant with soft tissue injury. He felt the plaintiff’s diagnosis was guarded as she had suffered persistent face and jaw complaints for almost three years at the time of writing his report. He believed that the motor vehicle accident was the probable cause of the plaintiff’s TMJ disorder.
G. Findings Re Medical Conditions
[126] I have reviewed all the medical evidence. As set out above, the medical professionals do not agree as to the plaintiff’s condition or its causes. My tasks are to make findings concerning the plaintiff’s medical condition post-accident and then determine which of those conditions were caused by the motor vehicle accident.
[127] The parties are in agreement and I find that that subsequent to the accident, the plaintiff developed PTSD and had soft tissue injuries to her neck, arm and shoulder and suffered from headaches. I find that her pain and suffering associated with various soft tissue injuries and other related physical symptoms have now developed into a pain disorder. I further find that she suffers from tinnitus and a visual vestibular mismatch which causes dizziness. In addition, I find that the plaintiff suffers from depression and anxiety.
[128] The more contentious questions are whether or not the plaintiff has a significant brain injury and whether she has DID.
[129] Of the various experts who testified, only Dr. Ancill and Dr. Bradshaw believed that the plaintiff suffered a serious concussive brain injury. The remaining medical professionals, although acknowledging that the plaintiff may have suffered an MTBI of short-term significance, did not believe that she suffered a significant brain injury or that any of her ongoing difficulties are as a result of a brain injury.
[130] Neither Dr. Schmidt nor Dr. Smith, who were both called on behalf of the plaintiff, believe she sustained a significant brain injury. Both testified that if she suffered any brain injury, the effects of such injury have long passed and are no longer contributing to her condition. The defence witnesses, Dr. Jones and Dr. Semrau, were of similar mind and were of the opinion that any brain injury the plaintiff suffered was transient in nature.
[131] I accept the evidence of Drs. Schmidt, Smith, Jones, and Semrau. The plaintiff has a good memory of what happened in the accident and in its immediate aftermath. Such recollection is not consistent with brain injury. Further, and significantly, Dr. Schmidt’s cognitive testing found that the plaintiff performed within the expected ranges on all areas. The test results were not consistent with an ongoing brain injury.
[132] I find that the plaintiff did suffer a minor MTBI in the accident but the effects of that injury were transient and had limited impact on the plaintiff. The fact that she was initially diagnosed and led to believe that she did have a significant brain injury did have an impact on her psychological health and played a role in her depression.
[133] The other major area of disagreement among the medical professionals is whether the plaintiff has DID. Although it is acknowledged to be a rare condition, it is the primary diagnosis of Dr. Bradshaw, Dr. Smith and Dr. Semrau. Dr. Hay agrees that the plaintiff dissociates, but believes that she does not meet the criteria for DID. Dr. Ancill and Dr. Matrick have not observed any evidence of dissociation.
[134] While one must approach this question with caution, I accept the evidence of Dr. Bradshaw, Dr. Smith and Dr. Semrau that the plaintiff does have DID. Dr. Bradshaw has given detailed evidence concerning his numerous sessions with the plaintiff and the existence of her alternate personalities. J.D. gave similar evidence concerning her alters. There is evidence that the plaintiff was taking part in self-harming behaviour, an activity associated with DID, although she did not disclose that behaviour until recently to anyone, including Dr. Bradshaw. Of particular importance are the opinions of Dr. Smith and Dr. Semrau. Both are independent witnesses. One testified for the plaintiff, the other for the defence. While both saw signs of disassociation at the time of their initial interviews with the plaintiff, neither initially accepted that diagnosis. Both acknowledged that it is a rare and unusual situation. Both have ultimately concluded that the plaintiff has DID. I accept their evidence and find that the plaintiff has DID.
H. Findings re Causation
[135] The Supreme Court of
First, the basic test for determining causation remains the "but for" test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that "but for" the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute.
This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., "[t]he general, but not conclusive, test for causation is the 'but for' test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant". Similarly, as I noted in Blackwater v. Plint, at para. 78, "[t]he rules of causation consider generally whether 'but for' the defendant's acts, the plaintiff's damages would have been incurred on a balance of probabilities."
The "but for" test recognizes that compensation for negligent conduct should only be made "where a substantial connection between the injury and the defendant's conduct" is present. It ensures that a defendant will not be held liable for the plaintiff's injuries where they "may very well be due to factors unconnected to the defendant and not the fault of anyone": Snell v. Farrell, at p. 327, per Sopinka J.
However, in special circumstances, the law has recognized exceptions to the basic "but for" test, and applied a "material contribution" test. Broadly speaking, the cases in which the "material contribution" test is properly applied involve two requirements.
First, it must be impossible for the plaintiff to prove that the defendant's negligence caused the plaintiff's injury using the "but for" test. The impossibility must be due to factors that are outside of the plaintiff's control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff's injury must fall within the ambit of the risk created by the defendant's breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the "but for" test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a "but for" approach.
[136] The parties agree and I find that the plaintiff’s soft tissue injuries and PTSD arose from the accident. I also find that her TMJ dysfunction as diagnosed by Dr. Blasberg and her tinnitus and dizziness as diagnosed by Dr. Longridge were caused by the accident. In making that finding, I acknowledge that Dr. Longridge testified that there was no scientific basis for his conclusion. That said, the plaintiff reported symptoms of tinnitus and dizziness within weeks of the accident. Tinnitus and dizziness can be caused by motor vehicle trauma. The defence called no evidence to contradict Dr. Longridge or explain her symptoms. I accept Dr. Longridge’s conclusion that the tinnitus and dizziness were probably caused by the accident.
[137] The most contentious issue is whether the accident caused the plaintiff’s DID and, if it did not, whether the plaintiff is in any event entitled to compensation for her depression and anxiety, which are by-products of both her PTSD and her DID. This in turn will depend upon whether those injuries are found to be divisible or indivisible.
[138] As previously set out, DID is a rare condition. Significant childhood abuse appears to be a pre-condition to a person developing DID. The condition can remain dormant for many years.
[139] Dr. Bradshaw and Dr. Smith have opined that the plaintiff’s DID developed as a result of the motor vehicle accident. They note that until the accident the plaintiff was a high functioning individual with no known psychiatric or psychological problems or symptoms. Shortly following the accident, the plaintiff began displaying serious psychiatric symptoms, including some which are now believed to be symptoms of disassociation. Dr. Smith based his causation opinion on the fact that her problems with DID only emerged in the aftermath of the motor vehicle accident. He did not belief that they were temporally related to the access dispute.
[140] Dr. Semrau is of the contrary opinion. He notes that the emotionally traumatic experience in the plaintiff’s life was her emotionally and physically abusive childhood. He notes that types of stressors most likely causative of a DID breakdown tend to be psychologically similar to the original emotional trauma that created the DID vulnerability. In the plaintiff’s case, there is a strong parallel between her childhood experiences and the danger that her daughter might be potentially exposed to neglect or abuse at the hands of her ex-husband if he were to prevail in his legal efforts to gain access to their daughter.
[141] Dr. Semrau suggested that the severity, duration and escalation of the plaintiff’s DID symptoms were grossly disproportionate to the extent and duration of the undoubted psychological stress arising from the motor vehicle accident. In his opinion, the triggering causes of her DID are far more likely to be serious stressors arising from the ongoing fears and conflicts with her ex-husband, as well as the ongoing stress of her present family breakdown. While acknowledging that the motor vehicle accident may have aggravated her DID, in his opinion it did not cause it. Dr. Semrau further opines that her DID has been so grossly disproportionate to the motor vehicle accident in its severity and duration, that if the motor vehicle accident did trigger the DID, then the plaintiff would have had to be in an extraordinarily fragile state before the motor vehicle accident to make it likely she would have sooner or later developed DID in any event.
[142] Dr. Smith acknowledged in cross examination that he did not know the particulars of the access dispute. He agreed that an access dispute could lead to serious anxiety and stress. He also agreed that given the plaintiff’s own history, the possibility that her daughter would be exposed to an abusive or neglectful parent would be a potentially serious source of stress. He agreed that it was “possible” that the stress of the access dispute could have led to the plaintiff’s DID, but that he would have to interview the plaintiff concerning the access dispute to be more definitive in that opinion.
[143] The opinions of Drs. Smith and Bradshaw are based on the temporal relationship between events, from which they then infer a causal connection. Such reasoning, however, can be problematical for the reasons set out by Ehrcke J. in White v. Stonestreet, 2006 BCSC 801 at ¶ 74-75:
The inference from a temporal sequence to a causal connection, however, is not always reliable. In fact, this form of reasoning so
often results in false conclusions that logicians have given it a Latin name. It is sometimes referred to as the fallacy of post hoc ergo propter hoc: "after this therefore because of this."
In searching for causes, a temporal connection is sometimes the only thing to go on. But if a mere temporal connection is going to form the basis for a conclusion about the cause of an event, then it is important to examine that temporal connection carefully. Just how close are the events in time? Were there other events happening around the same time, or even closer in time, that would provide an alternate, and more accurate, explanation of the true cause?
[144] In this case, unlike with the causation associated with the plaintiff’s tinnitus and dizziness, there is an alternative explanation for the plaintiff developing DID. That explanation is the stress associated with the access dispute. While the plaintiff downplayed the suggestion that the access dispute caused her great stress, the affidavits that she filed in that proceeding suggests otherwise. Five days prior to the accident, a court decision opened the door for the possibility that access right may be granted to R.H. In December 2003, two months after the accident, the plaintiff had her difficult interview with Dr. Krywaniuk.
[145] Dr. Smith acknowledged that the stress of the access dispute could have triggered the plaintiff’s DID. He could, however, give no opinion on whether it did because he was unaware of the particulars of the access dispute and had never questioned the plaintiff about it. In fairness to Dr. Smith, I should point out that the access dispute was raised as a possible cause only after his last interview with the plaintiff.
[146] Dr. Bradshaw’s evidence is also problematical. He has been treating the plaintiff for several years. He has long been her advocate in her attempts to overcome her devastating losses. While he may passionately believe that the motor vehicle accident led to the plaintiff’s DID, he did not impartially consider the alternative scenario. A second problem with his evidence is that he has a financial interest in the outcome of the litigation. He has been treating the plaintiff at a reduced rate in the expectation that he would be reimbursed at his full rate if she was successful. While such considerations may not have influenced his evidence, he cannot be considered an independent expert.
[147] None of the several experts who testified were aware of any other case where DID was triggered by a motor vehicle accident. If there was a connection between DID and motor vehicle accident trauma, one would have expected some recorded history of such an event. Car accidents happen every day and it can be assumed that they happen to individuals who had terribly abusive childhoods. The absence of any reported case where a car accident triggered DID, a rare but recognized condition, is important evidence that must be considered in determining whether this automobile accident caused this plaintiff to develop DID.
[148] The conclusions of Dr. Bradshaw and Dr. Smith were largely based on the temporal nexus to the accident. Such a nexus also applies to the access dispute. Dr. Smith’s opinion that the motor vehicle accident was the cause of the plaintiff’s DID is of limited value given his evidence that the access dispute was a possible cause and his failure to investigate that cause.
[149] Dr. Semrau gave his evidence in a balanced manner. He fully acknowledged that causation could not be determined with absolute certainty. He agreed that the motor vehicle accident may have aggravated the plaintiff’s DID, but he did not believe it caused it.
[150] The onus is on the plaintiff to establish that, “but for” the motor vehicle accident, she would not have developed DID. The evidence does not support proof of a causal connection between the plaintiff’s DID and the motor vehicle accident. I accept Dr. Semrau’s evidence that the access dispute was the most likely cause of the plaintiff’s DID. I find that the plaintiff has not proved that her DID was caused by the motor vehicle accident.
[151] The plaintiff does suffer from depression. Dr. Matrick’s diagnosis is that she suffers from a major depressive disorder. The medical evidence suggests that her depression has arisen from a combination of causes including PTSD, DID, her pain disorder and to some extent the misdiagnoses concerning her brain injury.
[152] In Athey v. Leonati, [1996] 3 S.C.R. 458, Major J. drew a line between divisible and indivisible injuries. All injuries caused or materially contributed to by the tort are indivisible while injuries where a causal connection to the tort is not established are said to be divisible. A defendant is not liable for injuries which were not caused by his or her negligence
[153] In the circumstances of this case, the plaintiff’s depression constitutes an indivisible injury. The motor vehicle accident is a cause of the depression. As there is a single indivisible injury, division is neither possible nor appropriate. The plaintiff’s depression and its consequences are one injury and the defendant is fully liable for that damage.
[154] The plaintiff’s DID constitutes a divisible injury. It was not caused by the defendant. The defendant is not liable for damages arising solely from the plaintiff’s DID.
ASSESSMENT OF DAMAGES
A. Overview
[155] The rules for assessing damages once causation is established must not be confused with the test for causation. As McLachlin, C.J. noted in Blackwater v. Plint, [2005] 3 S.C.R. 3 at ¶ 78:
It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether "but for" the defendant's acts, the plaintiff's damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant's act is a cause of the plaintiff's damage, the defendant is fully liable for that damage.
[156] The difficulty in this case is separating from the assessment of damages those damages arising solely from the plaintiff’s DID. The task is complicated. The plaintiff’s depression is an indivisible injury for which she is entitled to full compensation. Further the plaintiff was not initially diagnosed with DID. That diagnosis only emerged over time. The initial working diagnosis was a serious traumatic brain injury. While that diagnosis may have been ultimately proved wrong, it impacted on the plaintiff’s treatment and her mental state.
[157] The defendant acknowledges responsibility for the plaintiff’s injuries through to early 2006. He submits that thereafter there is a transition away from symptoms and conditions that have their cause in the accident to symptoms and conditions that were not caused by the accident. He notes that by 2006 the plaintiff’s PTSD was largely under control. To the extent that some of her injuries caused by the accident are permanent in nature, he submits they are not disabling and are properly considered in the determination of non-pecuniary injuries. He submits that the defendant is not responsible for any loss of future income or future care because those losses arise either because of her DID or because her DID has made them inevitable.
[158] The plaintiff’s submissions on damages were based on a finding that her DID was caused by the accident. I have found to the contrary. That finding does not mean that the plaintiff is not entitled to recover for any future losses, but it does lead to awards significantly less than the plaintiff proposed.
B. Non-Pecuniary Damages
[159] The accident caused the plaintiff’s PTSD, various soft tissue injuries, a pain disorder, depression, tinnitus, and a visual vestibular mismatch which results in dizziness. The accident dramatically reduced her enjoyment of life and caused the loss of various amenities of life. At the time of the accident, the plaintiff was a highly functional mother of three with an apparently limitless future. In the aftermath of the accident, her life has been devastated. She can no longer look after herself or her children. She lives in an assisted living facility. She is separated from her husband. Her future prospects are grim.
[160] While some of the plaintiff’s loss arises from her DID and is not subject to compensation, I find the plaintiff has suffered grievously as a direct result of the accident. The accident clearly terrified her. Much of her loss of enjoyment of life has been caused by her levels of anxiety and depression as she focused on what she could no longer do. She was told that she had suffered a serious brain injury. This led her to believe there was nothing she could do to improve her condition and contributed to her downward spiral. Her tinnitus and dizziness are likely permanent. The prognoses for her TMJ problems are guarded. There is some optimism that her pain disorder will improve given her recent change in medication. Similarly, over time her depression should respond to treatment. Her PTSD, although serious in years immediately subsequent to the accident, now appears to be in partial remission. Absent her DID, the plaintiff would now be on the road to recovery. DID plays a major role in her present situation and limits, at least for the next few years, her future opportunities.
[161] Plaintiff’s counsel cited numerous cases, including Sirna v. Smolinski, 2007 BCSC 967, Lines v. Gordon, 2006 BCSC 1929, Adamson v. Charity, 2007 BCSC 671 and Dionne v. Romanick, 2007 BCSC 436, in support of a non-pecuniary damage award of $225,000. Non-pecuniary damages in those cases ranged from $185,000 to $250,000.
[162] The defendant cited several cases, including Hutchings v. Dow , 2006 BCSC 629, Brown v. Lalani, 2005 BCSC 785, Wong v. Luong, 2004 BCSC 1489, and Edwards v. Marsden, 2004 BCSC 590. The defendant suggested that the range for non-pecuniary damages was either side of $100,000.
[163] Having reviewed the various authorities cited by counsel, I find that the cases cited by the plaintiff involved individuals whose injuries are somewhat greater than the plaintiff’s. Most involved permanent brain injuries. As previously noted, I have found that the plaintiff did not suffer such an injury in this case. While the cases cited by the plaintiff may well have set the appropriate range of damages if the plaintiff’s DID had been caused by the accident, I do not think they represent an appropriate measure given the findings I have made.
[164] I find that the plaintiff’s situation is somewhat more serious than in most of the cases referred to by the defendant. Even absent her DID, she has lost much of her enjoyment of life. I award $150,000 for non-pecuniary damages.
C. Past Wage Loss
[165] In the years prior to the accident, the plaintiff had worked as a music teacher and counsellor. She planned to return to work shortly after the accident. She has not worked since the accident.
[166] The defendant acknowledges that the plaintiff could not work after the accident but submits that her loss of past income should be limited to a period ending in early 2006, by which time her DID had made her unemployable.
[167] Evidence at the trial indicates that if the plaintiff had continued to work and earn in the same manner as she did in the first six months of 2003, her gross earning indexed for wage inflation to the end of 2005 would be $53,688. Her gross earnings to the end of 2006 would be $78,978 while her gross earnings to date of trial would be $107,929.
[168] The plaintiff was unable to return to work immediately after the accident because of the injuries she suffered in the accident. While it is possible that those injuries might have kept her off work until the trial even if she had not developed DID, her DID eventually made any return to work impossible, regardless of the injuries suffered in the accident. While it cannot be said with certainty when her DID became the dominant condition, it had certainly achieved that status by the end of 2006 when it was determined that the plaintiff was no longer capable of living on her own. I find that the plaintiff’s loss of income claim is limited to the end of 2006.
[169] I find that the plaintiff would likely have returned to work similar to that she had done in the past. Over time she likely would have increased her hours of work and the fees she charged for teaching music. The evidence indicates that counselling rates increased after the accident.
[170] Taking all the above into consideration, I assess her gross loss of past income at $85,000. If the parties cannot agree on the deductions required pursuant to the principles discussed in Hudniuk v. Warkentin (2003), 12 B.C.L.R. (4th) 370 (S.C.), they have liberty to make further submissions.
D. Future Income / Loss of Earning Capacity
[171] The plaintiff’s claim for future income loss is based on the premise that the plaintiff would have returned to college and obtained a PhD degree in psychology and ultimately practised as a psychologist alongside her husband. The plaintiff submits that the future income award should be based on her obtaining such status.
[172] The plaintiff’s submission cannot survive the finding that the plaintiff’s DID is not caused by the accident. For the foreseeable future, her DID is her governing medical condition. Given her DID, I cannot conclude that the plaintiff would have been able to pursue her educational dreams.
[173] The evidence suggests that her DID is treatable. Although the prognosis is guarded, Dr. Semrau opined that the plaintiff within 10 years would likely be able to rejoin the workforce.
[174] Notwithstanding her DID, the plaintiff’s ability to earn income in the future has been seriously impacted by the accident. Her tinnitus and dizziness is permanent. It is unclear whether she will recover from her TMJ complaints. While her depression and pain disorder may be treatable, they could well impact her future employment. All of these conditions will remain if the plaintiff recovers from her DID and all will effect her future employability.
[175] I find that the injuries suffered by the plaintiff have
impaired her income earning capacity. As a result of the accident, she
is less capable and less marketable than she may have been otherwise. She
is entitled to recover her loss of that opportunity: Pallos
v. Insurance Corporation of British Columbia (1995), 100 B.C.L.R.
(2d) 260 (
[176] As noted in Pallos, awards of this nature are by necessity somewhat arbitrary. In all the circumstances, I would regard a fair award under this head to be $100,000.
E. Cost of Future Care
[177] The plaintiff seeks compensation for the cost of future care. Such awards are based on what is reasonably necessary on the medical evidence to promote the mental and physical health of the plaintiff: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.).
[178] The plaintiff relies on a report prepared by Kim Gibson, an occupational therapist, to assess the plaintiff’s future care needs. Ms. Gibson’s report is of limited use as it is premised on the plaintiff’s DID being caused by the accident. While the evidence indicates that the plaintiff is in need of continuing psychiatric and psychological assistance, she is only entitled to that assistance to the extent that her present and future needs are caused by the subject motor vehicle accident. To the extent that her future care needs are as a result of her DID, they do not arise as a result of the accident and the defendant is not liable for them.
[179] Many of the future care claims are clearly related to
the plaintiff’s DID condition. By way of example, the plaintiff seeks
an allowance for her housing costs at
[180] The plaintiff also claims for the costs of the psychological services of Dr. Bradshaw or his successor. Those costs have been estimated at $16,640 per year. Dr. Bradshaw is treating the plaintiff’s DID while Dr. Matrick treats her depression. Dr. Bradshaw’s services are not recoverable. Dr. Matrick’s services are covered under the Medical Services Plan and not claimed.
[181] The plaintiff seeks the cost of a regular exercise program. Her participation in such a programme is supported on the medical evidence. The evidence is that exercises will be useful for the treatment of her psychiatric condition.
[182] The plaintiff seeks in excess of $20,000 for exercise coaching for four years. While the plaintiff may well require some assistance to get started, there is no basis to believe that she requires the level of proposed supervision. I award $10,000 for her exercise expense.
[183] The plaintiff is entitled to recover her future dental expenses of $786. Her dental requirements arose from the accident.
[184] The plaintiff is not entitled to case management or rehabilitation assistance. Her needs for such assistance arise from her ongoing difficulties with DID. Those costs are not recoverable.
[185] The plaintiff is entitled to an allowance for medications. She requires prescription drugs to treat her pain disorder and her depression. The plaintiff seeks a medication allowance of $123,065. While medication is presently required, the plaintiff’s calculation has been made on the basis that she will need medication for the rest of her life. While the evidence does not support that she will need medication for the rest of her life, she will certainly need it for several more years while her depression and DID is treated.
[186] Further and more significantly, the plaintiff’s claim does not take into account the government Pharmacare programme. Pursuant to that program and given her historical income, the plaintiff’s costs will be approximately $1,000 a year. I award $15,000 for the cost of future medications.
[187] The plaintiff claims a transportation allowance of $400 per year on the basis that she is now unable to drive and must avail herself of either Handi Dart services or taxis. It is not clear on the evidence whether in fact she is unable to drive. Dr. Longridge suggested she should not drive if she felt it unsafe to do so. The evidence indicates that she in fact continued to drive at least through to June 2006. In any event, even if she can no longer drive, it would not necessarily lead to an award for transportation expenses. It costs money to drive an automobile. If one cannot drive an automobile, one takes public transportation. If the plaintiff is presently unable to take public transportation, it is because of her DID, not otherwise. There will be no award for transportation costs.
[188] Once the plaintiff is able to return to work, she will require the assistance of an occupational therapist to assist her in re-establishing her career. Ms. Gibson recommended occupational therapy extending over a 4-year period. In the first year, she suggested one 2-hour session per week at a cost of $12,160. I agree that once the plaintiff recovers from her DID some occupational therapy will be necessary to enable her to prepare to return to the workforce. It is difficult to be definitive as to how much therapy will be needed. I award $15,000 for occupational therapy.
[189] The plaintiff seeks an award for the cost of supervised visits with her children. While those visits may be therapeutic, they are necessary only because of the plaintiff’s DID and because J.E. has chosen to move to Squamish. They are not costs for which the defendant is responsible.
[190] The plaintiff argues for a future in trust claim for J.E. on the basis that he has to bear the brunt of increased costs of homemaking and childcare duties since the plaintiff’s hospitalization in October 2006. Prior to her hospitalization, the plaintiff, albeit with some difficulty, managed such duties. The reason the plaintiff cannot continue to perform such duties is her DID. The claims for future childcare and housekeeping costs are dismissed.
[191] The plaintiff also claims for the costs of music lessons which the plaintiff would otherwise have given to her children. If there is a loss in this regard, it is a loss suffered by the children, not the plaintiff. In any event, at this time it is the DID that makes such lessons impossible. This cost is not recoverable.
F. SPECIAL DAMAGES
[192] The plaintiff claims special damages of $62,992.79. Generally speaking, the defence accepts responsibility for expenses claimed up to early 2006. Thereafter the defendant submits there is a transition away from symptoms and conditions caused by the accident to symptoms and conditions caused by the plaintiff’s DID for which the defendant is not responsible.
[193] As set out below the defendant challenges specific items of the special costs claim. The defendant accepts the balance of the special damage claim and I find the unchallenged items have been proven.
[194] The plaintiff challenges prescription costs incurred subsequent to September 27, 2006. The defendant submits that subsequent to September 2006, there were no psychiatric symptoms relating to the motor vehicle accident. With respect, that is not so. As previously set out, the plaintiff’s major depressive disorder was an indivisible injury arising from the motor vehicle accident. The prescriptions were for medicine to treat that disorder. The plaintiff is entitled to recover all prescription expenses.
[195] The defendant challenges accounts for physiotherapy, chiropractic treatments and massage therapy occurring subsequent to Dr. Jones’ determination in August 2006 that there was no neurological basis for her pain complaints. While Dr. Jones’ opinion has now been accepted in these proceedings, at the time of these treatments Dr. Ancill, her treating psychiatrist, and Dr. Bradshaw, her treating psychologist, were of the opinion that her pain complaints were neurologically based. Further, the plaintiff does have a chronic pain problem and these treatments were intended to relieve that condition. The plaintiff is entitled to recover those expenses.
[196] Two issues arise in regard to Dr. Bradshaw’s accounts. Dr. Bradshaw usually charges $150 an hour. Dr. Bradshaw agreed to treat the plaintiff for a reduced sum on the understanding that he would be reimbursed in full if she was successful in her litigation. The defendant submits that his obligation is limited to the amounts the plaintiff has actually paid and no more.
[197] I find on the evidence that there was an agreement that the plaintiff would pay Dr. Bradshaw’s full rate on completion of the litigation. Dr. Bradshaw’s accounts should not be reduced because he was prepared to defer payment at a time when the plaintiff was in financial difficulties. I find that the plaintiff is entitled to recover special damages based on Dr. Bradshaw’s usual rate of $150 per hour.
[198] The second question in relation to Dr. Bradshaw’s account is whether the defendant is liable to pay for all of the plaintiff’s sessions with Dr. Bradshaw. Dr. Bradshaw initially treated the plaintiff for PTSD. When her PTSD abated, the plaintiff’s condition did not approve. Dr. Bradshaw ultimately diagnosed the plaintiff with DID. That diagnosis was made some time in 2007 and has been the main focus of the plaintiff’s treatment with Dr. Bradshaw thereafter. The defendant submits that he should not be liable for Dr. Bradshaw’s accounts after August 11, 2007, which is the date the plaintiff left Bodie House. I accept the defendant’s submission that Dr. Bradshaw’s treatments after that date were to treat her DID and such accounts are not the responsibility of the defendant.
[199] The plaintiff claims the costs of her accommodation at
Brookswood Manor and
[200] The plaintiff claims for the cost of meals and mileage incurred as a result of J.E. and the children traveling from Squamish for visits. Those costs are a direct result of J.E.’s decision to take employment in Squamish. The defendant is not required to pay for family visits.
[201] The defendant challenges certain mileage claims.
The defendant is not responsible for mileage claims arising from visits to
Dr. Bradshaw from Brookswood Manor and
[202] I trust that counsel will be able to do the mathematical calculation in relation to special damages. If they cannot, they are at liberty to apply.
SUMMARY
[203] In summary, therefore, I find that the plaintiff is entitled to the awards set out above. Damages will be reduced by 10% as per the division of liability. As discussed in the course of submissions, the parties are at liberty to make further submissions in relation to the applicability of s. 99 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, and any additional matters, including costs, which the parties wish to be considered before final judgment is entered. Counsel should make arrangements with trial division for such further hearing time as they believe necessary.
[204] In closing, I would be remiss if I did not express my appreciation to counsel for their thorough and thoughtful presentation of this most difficult case.
____________________________________
The Honourable Mr. Justice R.B.T. Goepel