2008 BCSC 1445 Thieseen v. Kover

Before: The Honourable Mr. Justice Chamberlist

Reasons for Judgment

Counsel for the plaintiff:	J. S. Voss
Counsel for the defendant Shawn Kover:	L.A.J. Dunn
Date and Place of Trial/Hearing:	July 9-12, 16-27, August 21 and 22, 2007
	Prince George, B.C.
Plaintiff’s written submissions:	October 5, 2007
Defendant’s written submission:	November 23, 2007
Plaintiff’s written reply:	December 10, 2007

INTRODUCTION

[1] In these proceedings the plaintiff claims damages resulting from a motor vehicle accident that occurred July 23, 1999, when the plaintiff, a passenger in a motor vehicle owned by her then mother-in-law, Cora Thiessen, and driven by her husband, Gerald Thiessen, was involved in a two car collision with the motor vehicle driven by the defendant Shawn Kover.

[2] Liability for the accident is admitted by Shawn Kover. The action was discontinued against the other defendants.

[3] The plaintiff claims that she has suffered ongoing physical and emotional damage as a result of the accident and submits that the motor vehicle collision was an event that has changed her life dramatically over the 9+ years since the accident and seeks substantial non-pecuniary damages, loss of income to the trial date, loss of earning capacity, cost of future care, and in trust claims for her two daughters Tysheina and Kailein and a family friend, Major Deol.

[4] The plaintiff relies heavily on the thin skull rule as enunciated in various cases including Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (B.C.C.A.) and Yoshikawa v. Yu (1996), B.C.J. No. 623 (B.C.C.A.).

[5] For ease of reference in this introduction I merely state that the principle simply is when the court is called upon to assess damages, a tortfeasor must take an injured party, whether the injuries be physical or psychological, as the claimant existed at the time the injuries were sustained. Of course, with respect to psychological damage, a tortfeasor will be relieved from liability if it is found by the court that the psychological symptoms would have occurred in any event, even without the tortfeasor’s wrongful act.

[6] In this introduction I will refer to Yoshikawa, supra, in some detail.

[7] This principle is, of course, different from what has been referred to as the long standing principle that an injured person can claim damages for the entire harm suffered because of the thin skull rule.

[8] I have relied heavily on these two decisions of our Court of Appeal in analyzing the evidence, primarily relevant to the psychological injuries the plaintiff has alleged. Perhaps the most helpful introduction to the considerations that the court must give to the plaintiff’s assertions regarding psychological damage suffered by her is to be found in paras. 19 to 34, inclusive, of the Yoshikawa decision. For ease of reference it is easiest to set out those segments of that decision in their entirety.

[9] In Yoshikawa, the plaintiff had sued for personal injuries, including physical and psychological injuries, as a result of a motor vehicle accident in which the defendant admitted liability. A psychiatrist had examined the plaintiff and concluded that she had a somatoform pain disorder for which there were physical symptoms with no demonstrable organic cause. The psychiatrist found that there was a strong presumption that the symptoms were linked to psychological factors. The diagnosis by the psychiatrist did not imply that the symptoms had been intentionally produced. Although the disorder had not necessarily been caused by the accident, the disorder was, however, the plaintiff’s reaction to the accident.

[10] Madam Justice Rowles made it clear that the long standing principle in tort law meant the wrong doer must take the victim as he or she finds them and that under that principle there is no difference between an egg shell skull and an egg shell personality.

[11] Commencing at para. 19, Mr. Justice Cumming succinctly set forth the law as follows:

19 One of the most important principles, for the purposes of this case, is the principle that, for the purposes of assessing damages, a tortfeasor must take the person injured by the tort in the actual condition of that person at that time. This has been called the “thin skull” principle. In its application to psychological problems it has been called the “egg shell personality” application of the principle. In my opinion there is no basis for giving a more restrictive application to this principle in cases where psychological injuries are suffered than would be given in cases where only physical injuries are suffered. A predisposition to suffer psychological injury in circumstances such as those brought about in a particular injury in circumstances such as those brought about in a particular case by a defendant’s wrongful act does not relieve the defendant of the liability to compensate the plaintiff for the injuries represented by those psychological symptoms. Such relief could only occur, as I have said, if the psychological symptoms would have occurred in any event, even without the defendant’s wrongful act, through an application of the cause-in-fact test. Examples of the application of the “thin skull” principle to the award of damages for psychological symptoms in circumstances where there was an existing predisposition include Enge v. Trerise (1960), 26 D.L.R. (2d) 529 (B.C.C.A.), Cotic v. Gray (1981), 17 C.C.L.T. 138 (Ont. C.A.), Elloway v. Boomars (1968), 69 D.L.R. (2d) 605 (B.C.S.C.), and Marconato v. Franklin, [1974] 6 W.W.R. 676 (B.C.S.C.)

20 So, in this case, the evidence of Dr. Davis, accepted by the trial judge, to the effect that the plaintiff had a pre-existing disposition towards the psychological symptoms which actually occurred has no relevance in itself in the assessment of damages, as long as the first causation principle of cause-in-fact is met by it being established that the psychological symptoms would not have arisen but for the defendant’s wrongful act.

21 The other important principle, for the purposes of this case, as a principle applicable in dealing with questions of proximate cause, is the principle that a new intervening act, occurring after the defendant’s wrongful act, may given such a pronounced new impetus or deflection to the chain of causation that the original wrongful act of the defendant is no longer regarded as a sufficient cause upon which to rest legal liability. That principle is sometimes referred to as involving the occurrence of a novus actus interveniens.

22 The application of the principle relating to intervening acts involves the difficult task of finding the facts correctly on the basis of the evidence. It also requires a very nice judgment in balancing the causes of the psychological symptoms in order to decide whether the causes arising from the plaintiff’s own pre-existing subjective state and the plaintiff’s own individual conduct as well as from other sources such as the advice and actions of family, friends and healers, have had an independent new impetus or deflection on the existing chain of causation flowing through the defendant’s wrongful act, to such an extent that the defendant’s wrongful act must be regarded as a cause-in-fact for which no legal recovery is permitted. At that point, the defendant’s wrongful act would no longer be sufficient “proximate cause” in law. An example of a case where the cause-in-fact test was met, but the proximate cause test was not met because the plaintiff’s psychological symptoms were brought about by his own new acts after the accident and by his grief, so that the chain of causation was given a new impetus and deflection by his own acts which therefore constituted an intervening causative force, is to be found in Beecham v. Hughes (1988), 27 B.C.L.R. (2d) 1 (C.A.).

23 I propose to make three further observations before leaving this discussion of the principles governing the awarding of damages for psychological symptoms experienced by the victim of a tortious act.

24 My first observation is that I think it is correct to treat a plaintiff’s own conscious wish to receive care, comfort and attention, or the plaintiff’s own conscious failure to exercise his or her willpower to bring about a healing of the symptoms, as coming within the principle of new intervening acts, and to treat those occurrences as giving such a sufficient new impetus or deflection to the chain of causation as to render the original wrongful act no longer a proximate cause. But if the plaintiff’s wish to receive care, comfort and attention is accepted as being entirely unconscious and contrary to the plaintiff’s own apparent efforts to attain a healing of the symptoms, or if the plaintiff’s own failure to exercise his or her own willpower is unconscious and contrary to the plaintiff’s own apparent efforts to attain a healing of the symptoms, then I would not be prepared to say that the plaintiff is still excluded from compensation for the psychological symptoms. In short, I think that the word “conscious” is implicit in points 3, 4, 5, and 6 that I have extracted from Mr. Justice Taylor’s reasons in Maslen.

25 My second observation arises from the concurring reasons of Madam Justice Wilson, sitting in the Ontario Court of Appeal, in Cotic v. Gray. Madam Justice Wilson said, first, that the foreseeability test for remoteness of damage and the thin skull principle cannot co-exist in relation to psychological symptoms either directly brought about by the accident or triggered by the accident on the foundation of a predisposition to suffer such symptoms.

26 Madam Justice Wilson emphasized, second, that in a thin skull case, that is, a case of pre-existing vulnerability, the occurrence of the psychological symptoms should not, without more, be regarded as arising from a new sufficient cause in the nature of a novus actus interveniens. Madam Justice Wilson said this, at p. 180:

In my opinion, it is inappropriate in a thin skull case to view the peculiar vulnerability of the victim as causative in law. Undoubtedly as a factual matter the deceased’s psychiatric condition played a role in his subsequent suicide but the law would be taking away with one hand what it had given with the other if it were to permit the victim’s peculiar vulnerability to break the causal chain, or constitute a novus actus interveniens or, worse still, be treated as the effective cause of his damage. I do not think it was open to the jury to view the motor vehicle accident and the deceased’s psychiatric condition as separate or concurring “causes” and to choose between them which was the “effective cause” of the death. Given the deceased’s pre-existing mental frailty, the medical evidence referred to by my learned colleague established beyond peradventure that the accident and its effect upon Mr. Cotic drove him to his death.

27 I agree with those conclusions of Madam Justice Wilson.

28 My third observation is that there are many cases in which the assessment of damages depends upon an examination of this difficult area. As Mr. Justice Taylor said in Maslen v. Rubenstein, we were referred to more than fifty authorities in argument in that case. However, I wish to make a brief comment in relation to only British Columbia trial decisions.

29 Buteikis v. Adams (1994), 90 B.C.L.R. (2d) 213 (S.C.), is under appeal to this Court. My comment is that I do not propose to say anything whatsoever about that case.

30 In Landry v. Cadeau (24 June, 1985), Vancouver B830850 (B.C.S.C.), it is suggested in obiter dicta that weakness of willpower should not enable a plaintiff to recover damages for psychological symptoms that cannot be healed by the weak will of the plaintiff, if a strong-willed person could have healed the same symptoms in the same circumstances. To the extent that that suggestion is contrary to the application of the egg shell personality principle, I would not follow it.

31 In Smith v. Wensley (15 January, 1988), Victoria 85/0178 (B.C.S.C.), Mr. Justice Taylor said this, at p. 6:

It seems to me that if a person is reduced by an injury to a psychological state, so that continued pain is involuntarily experienced thereafter even though there is no physical basis for it, that pain might logically be attributed to psychological problems brought about by the accident, and the continued sensation of pain could properly be regarded in such a case as something caused by the accident. But where depression or some other psychological condition leading the victim to experience revival or continuation of pain has not been shown to have been caused by the accident to which the pain is attributed, it cannot be said, for the purposes of the law, that a causal connection exists between the injury and the continued pain. The only connection between them is that which exists in the mind of the sufferer – the injury is merely the subject on which the victim’s mind has happened to focus or “fixate” – and that is not, of course, sufficient to establish a connection in law between the injury and the continuing complaint.

32 It seems to me that there are two different types of psychological symptoms that may be covered by the principles that are here being discussed. There are those where the psychological symptoms have their origin entirely in the defendant’s wrongful act. Clearly they are compensable. And there are those psychological symptoms where the defendant’s wrongful act triggers a pre-existing psychological condition so that both the defendant’s wrongful act and the pre-existing condition are causes-in-fact of the psychological injury. In the latter cases the psychological injury will be compensable on the basis of a pre-existing thin skull, except only in cases where the psychological problem is so dominant as a pre-existing condition and the injuries sustained in the accident are so trivial that the accident can no longer be said to be sufficient cause in law to support an award of damages on the basis of proximate cause.

33 I have difficulty accepting that there will be any cases in which it could be said that damages should be refused on the basis that the injury suffered in the accident was merely the subject on which the victim’s mind has happened to focus or fixate, when it cannot also be said that if the accident had not happened something else would have provided the trigger for the focussing or fixating so that the psychological symptoms would have occurred in any event and the cause-in-fact test would not have been met.

34 It is noteworthy that though Smith v. Wensley was referred to in argument in Maslen v. Rubenstein, Mr. Justice Taylor did not return again to the notion that damages would not be awarded if the accident injuries were merely something on which the plaintiff focussed or fixated. I think that if the focussing or fixating has its real origin in the accident, or if the focussing or fixating has its real origin in a pre-existing tendency to focus or fixate in that way, then the psychological symptoms arising from the focussing or fixating would be compensable unless the focussing or fixating would have occurred in any event, but would have chosen a different subject matter on which to crystallize, even if the accident had not occurred.

DISCUSSION

[12] In this case, the plaintiff submits that the accident of July 23, 1999, started a chain of events that changed the life of Loretta Thiessen forever, and that the physical and emotional consequences of the accident that were suffered by the plaintiff have left her with chronic pain and debilitating post-traumatic stress disorder which has not responded to over eight years of psychiatric treatment. The plaintiff submits that the emotional consequences flowing from the accident have left the plaintiff unable to cope with life. The plaintiff submits that because of her internal makeup the emotional consequences caused a downward spiral requiring treatment that interfered with her making progress on the accident induced disorder. The plaintiff alleges that the physical and emotional consequences of the accident resulted in the plaintiff becoming dependent on her children, family and medical care givers almost completely.

[13] The plaintiff has conceded that she has what is described by her doctors as a histrionic personality but not a histrionic disorder as alleged by the defence. While there was evidence at trial that the plaintiff’s marriage may not have been as happy as she thought it was, she submits that she was functioning and in the process of rebuilding her life after a period of unemployment for her husband due to chronic pain and his own health issues, and the accident halted that process.

[14] The defence’s position with respect to the emotional and psychological damage that the plaintiff claims may be succinctly stated as being completely out of proportion to the initial injuries that were suffered by her. The defence strongly submits that the overriding and troublesome feature of this action is that on material points the plaintiff’s own evidence is contrary to almost every other witness heard at the trial. Regretfully there is also evidence put forward by the defence in its witnesses that the plaintiff has, leading up to this trial, requested third parties to provide false or misleading evidence. The defence submits that these requests and inconsistencies in the evidence heard must lead to a conclusion that the plaintiff has a lack of reliability and trustworthiness which not only affects her direct evidence but also the medical evidence presented by the plaintiff.

[15] Ultimately the defence submits that given the plaintiff’s lack of reliability and/or trustworthiness, coupled with the fact that many of the plaintiff’s expert witnesses, in coming to their conclusions, have simply relied on the plaintiff’s direct self-reporting or on her indirect self-reporting to others which is unreliable and must, of necessity, lead to a conclusion that the plaintiff has failed to prove her case concerning anything other than physical damage caused by the accident.

[16] The defence argues that the plaintiff had a pre-existing psychiatric history, including personality traits or disorders. The defence submits that numerous pre- and post-accident psychiatric “buttons” or “stressors” that did occur and others that may have not likely occurred but may be part of the plaintiff’s own subjective beliefs are relevant considerations that make this case appear quite complex initially, but after careful consideration will be seen to be otherwise..

[17] While on this subject it is necessary to deal with an issue that arose as a result of the defence submissions and the plaintiff’s reply.

[18] On July 9, 2007, at approximately 12:20 p.m., Exhibits 1 to 5 were marked with the consent of both parties. Exhibits 1 to 4 consisted of the defendant’s documents comprised as follows –

Exhibit 1	Medical Reports
Exhibit 2	Clinical Medical Reports
Exhibit 3 (A & B)	Volumes entitled Hospital Records
Exhibit 4	Defendant’s documents regarding Special Damages

Exhibit 5 was placed in as the Defendant’s documents.

[19] Mr. Dunn, counsel for the defence, advised the court that there was no written agreement, however, there was an oral agreement with respect to the documents as follows –

a) That copies would stand in the place of originals;

b) That opinion evidence contained in the medical reports by treators were not opinions under R. 40A, except for mechanical opinions. These were specifically mentioned by Mr. Dunn as being opinions under and by virtue of Ares v. Venner, [1970] S.C.R. 608 (S.C.C.), being physical observations of the plaintiff by the treator;

c) That the clinical records, by agreement, were being placed in evidence pursuant to White v. Stonestreet, 2005 BCSC 1751. Specifically, Mr. Dunn stated that the documents (clinical records) would go in as proof of bodily statements up to the contemplation of litigation and after that the statements of the plaintiff would just go in as proof that the statement was made.

Mr. Dunn and Ms. Voss indicated that they had not yet agreed on the date where litigation was contemplated and, in fact, that matter was never addressed by counsel again.

[20] The trial record discloses that the writ of summons in this proceeding was filed on July 18, 2001.

[21] In the White v. Stonestreet decision of December 8, 2005, Mr. Justice Ehrcke dealt with the issue. At issue in that case were statements made to the plaintiff’s physician and his physiotherapist. All parties in that case agreed that the plaintiff’s statement to the physician and the physiotherapist were admissible to the fact that they were said but in contention was whether or not they were admissible as evidence of their truth. Mr. Justice Ehrcke said, at para. 7:

. . . Of course, even if they were admitted for the latter purpose, their weight would still have to be assessed, like that of all the other evidence, at the conclusion of the trial. . . .

[22] After reviewing the principled approach established by the Supreme Court of Canada in R. v. Starr, [2000] 2 S.C.R. 144, his Lordship concluded that the clinical records of the family physician and the physiotherapist were admissible in evidence as business records pursuant to s. 42 of the Evidence Act and that the statements in the records and the viva voce testimony of the doctor and the physiotherapist of what the plaintiff told them regarding “his contemporaneous bodily condition up until the fall of 2001 are admissible as evidence of his bodily condition”. The fall of 2001 was chosen by the learned judge on the basis of his conclusion as to where litigation is already underway. At para. 27 of the decision, Mr. Justice Ehrcke said:

[27] Of course, the situation is different where litigation is already underway or contemplated by the declarant at the time of the out of court statements. In such a case the motive to fabricate may be sufficiently strong to defeat the reliability requirement, and the hearsay evidence may on that basis be excluded. . . .

[23] His Lordship, in the same para., then went on to distinguish another decision:

. . . I would distinguish the decision in Samuel v. Chrysler Credit Canada Ltd. [citation omitted] on that basis. There, the trial judge specifically found that at the time of the plaintiff’s out of court statements, litigation was either in progress or being contemplated. For that reason he had grave concerns about the reliability of the out of court statements and held that they could not be used as evidence of their truth.

[24] In the defendant’s written submissions he did not make reference to White v. Stonestreet being the basis upon which he had stated to the court that the clinical records were admissible. Rather, Mr. Dunn relied on the decision of Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431, which was handed down on September 7, 2007, some time after the evidence had been concluded in this matter. Samuel v. Chrysler Credit Canada Ltd. rejected the approach in White v. Stonestreet, although it noted that even the judge in White had held that “reliability” is different where litigation is already underway or contemplated by the declarant at the time of the out of court statements.

[25] In the Samuel decision the Court of Appeal expressly stated that it considered the analysis taken in Seaman v. Crook, 2003 BCSC 464, 14 B.C.L.R. (4^th) 132, to be the correct analysis, with the conclusion being that statements made by a plaintiff to doctors and other treators are admissible only for the fact that they were made and not for the truth.

[26] The fact still remains that in this case the parties had agreed to the terms under which the Exhibits, primarily the clinical records, would be admitted and were so admitted on July 9, 2007.

[27] I agree with the plaintiff’s submission that the trial decision of Samuel was available to the defence to argue and make submissions on during the trial, or whilst the Exhibits were being marked on July 9, 2007, but the defence did not.

[28] It is important to note that Samuel is distinguishable from this trial in various ways, including –

a) there was no document agreement or agreement at the trial which practice was described by our Court of Appeal at paras. 7-9 as “folly”;

b) submissions as to the use of the documents were made at the close of the case prior to counsel making their submissions and the judge instructing the jury;

c) the patient’s psychological circumstances were central in this trial and the necessity arm of the test for admission of the hearsay evidence in this case was much higher than in Samuel.

[29] It is also important to note the second aspect of the terms of the agreement that were referred to Mr. Dunn, namely, that the opinions contained within the clinical records were not being relied upon by the plaintiff pursuant to R. 40A and that only mechanical observations of the treator contained within the clinical records and opinions were admissible.

[30] I conclude that it would not be appropriate to change the rules under which this lengthy trial proceeded because of the later decision of our Court of Appeal.

[31] In this case the defendant has placed the trustworthiness and the reliability of the plaintiff’s evidence in direct issue and I am more than mindful of the fact that a trial judge should always have “grave concerns” regarding statements made by a plaintiff, either when litigation was in prospect or underway. The concerns raised by the defence and the evidence led by the defence with respect to those concerns have brought to the forefront the question regarding the circumstantial guarantee of trustworthiness that would otherwise attach to statements made to treatment providers by the plaintiff (Samuel v. Chrysler Credit Canada Ltd. at para. 41).

[32] In analyzing the reliability and trustworthiness of the plaintiff’s evidence and the evidence of her treators who have relied on her reliability and trustworthiness I have kept the comments of our Court of Appeal in the Samuel decision regarding the danger of accepting statements made by the plaintiff after litigation was contemplated in the forefront of my determinations.

THE PRE-ACCIDENT CONDITION OF THE PLAINTIFF

[33] The plaintiff was born in Uganda on July 16, 1963, and at the time of trial was 44 years of age. The plaintiff’s family immigrated to Canada when the plaintiff was 8 years old. She completed her Grade 8 education and entered the work force, first starting at McDonalds and thereafter she began office work. She attended the College of New Caledonia in Prince George, commencing but not completing a course in office administration and bookkeeping. She became involved in a commonlaw relationship with Edward McCoy and they had two children; Kailein McCoy, born May 30, 1985, and Tysheina McCoy, born April 9, 1986. Both children gave evidence at the trial. Edward McCoy and his mother Cora Beddows also gave evidence at the trial on behalf of the plaintiff.

[34] Following the break-up of her commonlaw relationship the plaintiff remained in the work force from time-to-time. Through the assistance of Cora Beddows the plaintiff was able to purchase a home for herself and her two children on Honeymoon Drive in the City of Prince George.

[35] In or about that time, and towards the end of 1989, clinical records of the plaintiff disclose that she was feeling overwhelmed with full time work and raising her two daughters. At that time her family physician, Dr. Mallam, suggested she take some time off work.

[36] While she was off work she met her future husband, and defendant in these proceedings, Gerald Thiessen. Within a few months of her meeting Mr. Thiessen the parties were married and shortly after that TKT Plumbing and Heating Ltd. (“TKT”) was incorporated. Only Gerald Thiessen was involved in the physical work involved in the plumbing and heating business with the plaintiff performing office work that was required.

[37] Gerald Thiessen thereafter suffered an exacerbation of a pre-existing back injury. The family received Social Assistance benefits from January 1996 to March 1998. During this time clinical records disclose that the plaintiff was having gynaecological difficulties resulting in her requiring a hysterectomy that was performed in March 1996. In the meantime, Mr. Thiessen’s exacerbated back pain problems caused the family to investigate other business endeavours to support themselves.

[38] In April of 1997 the records of the Prince George Regional Hospital (“PGRH”), (Exhibit 3A, page 149), disclose complaints made to a nurse, including “getting flashbacks of past sexual abuse . . ., she has a difficult time remembering what is fact and what is fiction . . ., I believe that a lot of this knowledge comes not from memory but from her sister telling her this . . .”

[39] At around this time the plaintiff’s marital circumstances are in some contradiction as to the stability of the marriage and the happiness of Mr. Thiessen and Ms. Thiessen.

[40] Gerald Thiessen was called by the defence and gave somewhat contradictory evidence to that of the plaintiff with respect to the circumstances of the marriage at about the time of the accident. In his testimony, he testified as to having first met the plaintiff in 1990 and they were married on June 16, 1990. At that time he testified to the plaintiff being off work on medical leave which he thought was stress leave. He described how their marriage, after the third year, went progressively down hill with Ms. Thiessen drinking and becoming abusive to him by yelling and screaming at him.

[41] He described her as complaining about things not going her way. He described how most of the time the plaintiff would scream at him for not getting things done while he was in the middle of doing something else. He described that as the years progressed the arguments occurred more frequently with the plaintiff’s mood swings being up and down like a “basketball” from one minute to the next. With regard to her temper, he described his wife as being quite quick tempered and often becoming overly aggressive, both verbally and physically, towards him. He described how towards the end of their relationship arguing with the plaintiff would get him no where and that he would just give up. He described how he had given her an ultimatum a few years earlier before their break up regarding her drinking and that she had indeed slowed down with the drinking, but in the latter part of their relationship she had started drinking again.

[42] He testified as to how it was she who created troubles for the neighbours and the neighbours coming to talk to him about the plaintiff’s involvement. With respect to her physical attributes, he described how she would often, before the accident, tell him of the migraine headaches that she was subject to and the fact that she was on Tylenol. When asked how the plaintiff would talk to him, Mr. Thiessen described her as being quite intelligent but also quite manipulative. He described how small things would be blown up; ending in the plaintiff’s yelling and screaming. He described how the plaintiff would, prior to the motor vehicle accident (“MVA”), always appear well dressed and with her hair done up properly, even if they were only going fishing.

[43] Mr. Thiessen also spoke of how their relationship prior to the MVA slowly got worse, and when asked why he responded “I’m not sure . . . could be financial difficulties”. With respect to his intimate relationship with his wife he described how he had not had any sexual relations with his wife for approximately a year before he left her in February 2000.

[44] With respect to Ms. Thiessen’s emotional wellbeing after the loss of his job, he described the plaintiff as becoming more and more aggressive, harder to talk to and stated that “her mood swings got worse and worse and worse”. He described how he got her to go to the adult mental health unit and how it was he who had arranged to send his two step-daughters away to avoid them being at home while they were arguing. He testified that after his loss of employment her activities inside the house doing housework slowed right down when she told him she was unable to do these activities.

[45] He described how the former matrimonial home finally went into foreclosure and how both he and the plaintiff had been on social assistance following their separation in or about February 2001.

[46] Various additional witnesses were called by the plaintiff and the defendant with respect to the plaintiff’s pre-accident condition. These included Jane Yarama, sister of the plaintiff, Edward McCoy and his mother Cora Beddows, along with Kathy Taylor, Wanda MacLean, sister of Gerald Thiessen, Chris Bay, Susan Bay, and Susan McKeown, and others. There is no doubt from a review of all these witnesses’ testimony, other than Jane Yarama, that Loretta Thiessen certainly had her ups and downs, and all agreed with the evidence of Gerald Thiessen that Loretta Thiessen was known to yell and scream and be moody.

[47] With respect to Jane Yarama, as indicated, she is the plaintiff’s sister. I found that Ms. Yarama was unable to provide a lot of insight into the plaintiff’s pre-accident condition as there had been very little contact other than family dinners over the five years ending in 2000 when Mr. and Ms. Thiessen separated. With regard to the time period initially following the accident, Jane Yarama could not recall any specific details regarding the plaintiff’s activities other than her visits to the plaintiff’s home shortly after the accident. While Ms. Yarama did comment on how her sister had become disorganized following the accident, it became clear under cross-examination that her ability to recall specifics was weak. This may have been in part due to the fact that in or about the same time her own husband had been involved in a motor vehicle accident and she was required to spend time dealing with his injuries over that period of time.

[48] I did not find her evidence to be of assistance in dealing with the issue of causation or the physical complaints of the plaintiff going past late 1999.

[49] Of particular import with respect to the circumstances of the plaintiff before the accident were the testimonies of Kathy Taylor and Wanda MacLean, both witnesses called by the defence. Kathy Taylor testified of her knowledge of the plaintiff’s ongoing migraine complaints before the MVA. She also testified as to observing the Thiessen girls, Tysheina and Kailein, upset and crying after their mother had said she was dying. Commenting specifically on her knowledge of the plaintiff’s circumstances prior to the MVA in question, Ms. Taylor described how the plaintiff would blow things out of proportion and would treat most events as being large in her life. She also described the plaintiff as having personality traits where at certain times she would be “a real sweetheart” but at other times would be vulgar. She also testified to the plaintiff yelling and screaming on a fairly regular basis, and that she found the plaintiff to be moody, with instant change in her emotion, and that over the years up to the accident this moodiness had gotten progressively worse. Ms. Taylor testified that up to the motor vehicle accident she had noted that the plaintiff was getting worse over time and becoming irrational.

[50] Wanda MacLean described the plaintiff as being emotionally up and down and continually complaining of being sick and dying. Sometime prior to the MVA Ms. MacLean and her family had stopped visiting the Thiessen household because, according to her, the MacLeans were unable to handle interaction with the plaintiff as she had just become too angry and unpredictable.

[51] Cora Beddows testified that the plaintiff was very volatile but very articulate. She had continued to be in touch with the Thiessens for the sake of visiting her granddaughters. Under cross-examination Ms. Beddows testified that the plaintiff’s volatile temper was more of a personality issue but that her temper had become far worse towards the end of the marriage in 2001.

[52] Mr. and Mrs. Bay were called by the defence and testified to the plaintiff’s mood up to the time they had relocated from their Honeymoon Drive address in April 2000. With respect to both Chris and Susan Bay, while they did comment negatively on the plaintiff, I have determined that the amount of hostility I detected on their testimony towards the plaintiff should result in their testimony being downplayed.

[53] Suzanne Van Diepen was a neighbour who gave evidence regarding the plaintiff’s personality up until when she had moved away in 1997. Her evidence was primarily with respect to the plaintiff’s yelling over that time period.

[54] Clytie Umpherville was another witness called by the defence regarding the plaintiff’s personality and various traits exhibited by her prior to the accident. She, like others, testified that Ms. Thiessen had told her from time-to-time how she suffered from migraines.

THE MOTOR VEHICLE ACCIDENT

[55] The accident occurred at approximately 10:00 p.m. on July 23, 1999, when Gerald Thiessen commenced passing a slower truck. Mr. Thiessen moved to the left and proceeded to pass when the truck, driven by the defendant Kover, turned his vehicle into the Thiessen vehicle, impacting that vehicle and causing it to slide down the 12’ to 14’ ditch, and coming down on the driver’s side. Mr. Thiessen described how he sustained damage to his head by hitting the driver’s side window with his cranium. Under cross-examination he agreed that prior to the MVA in question, the plaintiff was energetic and maintained the matrimonial home in immaculate condition.

THE POST-ACCIDENT CONDITION OF THE PLAINTIFF

[56] Mr. Thiessen described his observations of the plaintiff’s condition following the accident. He described when he came to in the motor vehicle the plaintiff complained of her chest being sore, her head hurting and her having trouble breathing. Relative to the accident, he described the plaintiff being removed from the vehicle with the ambulance drivers placing her into the ambulance and taking the two of them to hospital in Merritt. He described staying in Merritt that evening, after having borrowed a wheelchair, and wheeling the plaintiff down to a parking lot of a hotel. He recalled attending at his mother’s vehicle at the towing company to remove his mother’s possessions out of the vehicle. He recalled the two of them going into the vehicle and that he was at the trunk while Ms. Thiessen was getting possessions out of the vehicle. Thereafter they continued on to Richmond, B.C., which was the original destination of the trip, to take her to a speech doctor regarding her vocal chords and thereafter the two of them drove back to Prince George.

[57] Mr. Thiessen gave evidence with respect to observations he had made of his wife’s injuries. He described her, one month following the accident, progressing well and doing more things inside and outside of the home. He described her doing laundry, dishes and chores that needed to be done in the home; while outside she was able to water flower beds and pick weeds. He testified that in August of 1999 the plaintiff suggested to him that they should separate and blame the motor vehicle accident for the separation and then get back together after it was settled. He testified to her having said they would get more money. I will deal with this evidence regarding the use of the plaintiff’s clinical records later in these reasons.

[58] Mr. Thiessen further testified that in September 1999, although he felt Ms. Thiessen was able to do normal activities quite well, he recalled Ms. Thiessen as saying she couldn’t do it anymore. At that time Mr. Thiessen was working through his company for B.C. Corrections performing less regular work than in prior years. The contract came to a complete end in October of 1999.

[59] Orval Strom was called as a witness by the defence with regard to his observations of the plaintiff following the accident. He was a driver for Pike’s Towing in Logan Lake at the time of the accident. He specifically recalled the Thiessens attending to the tow yard to get their belongings from their vehicle following the accident. He was quite precise in his recollection of Loretta Thiessen being observed by him leaning into the vehicle through the passenger window with the door still closed and bending at the waist while reaching into the vehicle for a matter of minutes. He recalled opening the passenger door for her and Mr. Thiessen and the plaintiff getting into the car and removing their belongings.

[60] Various witnesses called for the defence gave particularly disarming evidence with respect to the plaintiff’s trustworthiness and reliability. Kathy Taylor, whose evidence I have already referred to in relation to the pre-accident condition of the plaintiff, also testified regarding her dealings with the plaintiff following the MVA. She specifically testified to an event in August 1999 when the plaintiff asked her to write a letter advising that had it not been for the MVA the plaintiff would be employed by her. Ms. Taylor testified that one of her companies’ bookkeepers had given notice that she was leaving. Ms. Taylor stated that she told the plaintiff she would not do this and that she would not lie for anybody. She described the plaintiff being very angry and thereafter harassing Ms. Taylor. She testified to the plaintiff taking the position that the refusal of Ms. Taylor to provide such a letter made her no long a friend.

[61] Kathy Taylor also testified that the plaintiff had told her she was “being tailed” by ICBC and as a result she was unable to do things, like carry groceries, because if she was seen doing this by investigators it would adversely affect her litigation.

[62] Finally Ms. Taylor testified that she did not notice any physical changes in the plaintiff immediately following the accident. She did testify, however, that after Gerald Thiessen’s contract at the correction centre had concluded, she noticed specific changes with respect to the plaintiff. These included financial pressures and specifically the plaintiff wanting money for work that the Taylor company had already paid for. She also referred to a situation in which the plaintiff’s vehicle had been damaged and the plaintiff requesting Ms. Taylor to pay for the damages to the car, but shortly thereafter contacting her to tell her that she did not have to pay for the damages that she was reporting the car was stolen.

[63] Chris and Susan Bay also gave evidence with respect to their observations of the plaintiff following the accident. Their evidence regarding their observations of her personality, which I have already indicated I would not rely on because of their apparent hostility towards the plaintiff, also included observations by the two of them with respect to her driving after the motor vehicle accident. It is to be recalled that the position of the plaintiff throughout the trial was that she has not driven a motor vehicle since the MVA in question. Both Mr. and Ms. Bay gave evidence that contradicted this position.

[64] The defence called Laurie Eaket with respect to the particular issue of the plaintiff’s driving or not driving. Ms. Eaket is 47 years of age. In early 2000 she was employed at Finess Florists in Prince George, B.C. She testified to having met the plaintiff in March 2000 when the plaintiff walked in to her store, by herself, carrying a box of candles. She was there to ascertain if the florist shop would be interested in selling the candles Ms. Thiessen had apparently manufactured. Ms. Eaket spoke with the plaintiff who advised her that she had more product in her trunk if she wanted to look at them. Ms. Eaket advised the plaintiff that she was not interested. She then testified to observing the plaintiff leave, placing the box of candles on her hip, while opening the store door with one arm. She then continued to observe the plaintiff place the box of candles into the trunk of a car and then get in the driver’s side of the car and drive off. She was not cross-examined.

[65] Doreen O’Hagan was another witness called by the defence with respect to the plaintiff’s contention that she was unable to drive a motor vehicle following the accident, and had not driven since that time. Ms. O’Hagan testified that she has been a school bus driver for 14 or 15 years and that in the school year 1999/2000 she was the school bus driver on the morning route that covered the plaintiff’s residence on Honeymoon Drive. She testified to having driven the Thiessen girls to Kelly Road Secondary School that year on the school bus. She testified to recalling that at times in that winter the plaintiff would drive the girls to the bus stop and that she observed this on more than one occasion. She said that when she arrived with her bus the Thiessen girls would exit the car leaving the plaintiff in the driver’s seat. She recalled specifically one occasion where the plaintiff waived to her and that she waived back. She testified to there being no other occupants in the motor vehicle. She was not shaken on cross-examination.

[66] Kailein and Tysheina McCoy were both called as witnesses for the plaintiff. I did not find their evidence with respect to either pre- or post-condition of the plaintiff to be helpful.

[67] Other witnesses were called over the term of this three week trial, and I do not propose to deal with them specifically.

[68] The plaintiff commenced her direct evidence advising the court that she was on medications and with respect to certain of her medications taken that day, she testified that she did not know if the medication affects her memory. In her testimony she tracked her history of immigrating to Canada with her family in June 1973 from Uganda, her attendance in school, her relationship with her commonlaw husband Edward McCoy and the birth of her two children. She described her relationship with Gerald Thiessen, their marriage, his back injury in 1996 and Mr. Thiessen’s recovery from his back injury and the family responsibilities that were taken over by her as a result. She described her hysterectomy operation of April 15, 1996 and complications that occurred relating to it. She described the type of bookkeeping work she did for her husband’s business but around the time of the accident this work dealt primarily with filings on behalf of a one-man company, including WCB and GST filings.

[69] She described her physical condition as a result of the accident consisting of an inability to get out of bed, her body not absorbing nutrients, and being provided a prescription for severe depression. According to Ms. Thiessen at the outset she stated that the day following the motor vehicle accident she noted that her husband was not as caring towards her and that his attitude towards her got worse on the day they continued their journey to Vancouver. She said how upsetting she found this reaction. She described how, as a result of the accident, she felt confused, would get mad easily, and was, immediately following the accident, in a state of being terrified all the time and that these feelings have not changed. She described how if she did have fights with her husband those fights started after the return from Vancouver following the MVA, and in her words “because of my mental illness and Gerald Thiessen’s physical injury”. She described how shortly after the accident she felt severe pain in her shoulders, neck and the back of her legs. She also described how the day following the accident she was subject to flash backs which she described as thinking that other vehicles were going to hit them and described that flash back as going right back to being stuck in her mother-in-law’s automobile.

[70] She also described a driving phobia associated with a vehicle sliding, which she described as being on ice, and that somehow she referred to winter conditions and rain and being unable to stop. This, of course, is unrelated to the MVA in question which happened on a summer evening, but of course, there would have been some sliding of the vehicle. She described how she attended physiotherapy and counselling following the accident, and as a result of the counselling felt stronger and able to make some improvements in her life, although in her words, since the accident she easily becomes confused. She commented in particular that since the accident she is unable to shut up, that she paces, and yells. As indicated earlier, similar of these traits were noted pre-accident. The plaintiff described how she had difficulties with Dr. Schokking starting in November 1999 and because of those difficulties changed doctors. She testified how she attended on various doctors, including Dr. Shahnawaz, Dr. Grobbelaar and Dr. Brink.

[71] Under further direct examination she was asked about stress in her life prior to the MVA. She stated that as a result of the 1993 MVA she was involved in she was treated for depression, and also indicated that she had anxiety attacks but was unable to identify those anxiety attacks to that MVA. She described how, currently, her days are mostly the same, with a good day being when she wakes up and her body is not stiff and not in a lot of pain; while she described a bad day as waking up in pain with her body so stiff that getting out of bed is painful and, as a result, she has to use the hot tub. With respect to her mental condition on a bad day she describes it as a day when she is fighting with everybody and is agitated.

[72] She described how she was unable to do many things at one time and that if she has two or more things to do she gets agitated. She described herself encountering pain from her neck and how, what she described as TMJ, causes headaches. Following the MVA she described how she had felt nauseous, was unable to eat, and lost some twenty pounds. As to her current position she described how her sleep continues to be affected, dependent on her mental state. With respect to her driving phobia and her inability to drive, she described how when a vehicle is approaching from behind she becomes terrified and becomes worked up. She described her current life skills and her requiring assistance with lifting, and she requires help in her kitchen. She also testified that over the years driving on highways had become a little easier for her provided she uses tranquilizers. With respect in town transportation she described how she would “freak out” when it’s raining. She steadfastly maintained in her evidence that she has not driven since the MVA.

[73] The plaintiff herself was cross-examined at length, in particular with respect to her pre-accident conditions. Clinical records of Drs. Hagen and Schokking were put to her, starting with a December 12, 1989 entry, by her then treating physician, which indicated that she felt she was losing control and was acutely depressed. Under cross-examination she, at first, disputed that statement, but later agreed with it. She agreed that in 1997 it was a stressor for her that her husband was not working due to his back problems and the financial strains they were going through at the time. The plaintiff testified that, at that time, she had to deal with her and her husband and Mr. Thiessen’s inability to work, and as a result, there was financial strain. Likewise, certain records of the PGRH were put to her regarding this time in her life, including a diagnosis of “post-traumatic stress/delayed onset”.

[74] Under further cross-examination the plaintiff agreed that she had headaches, neck pain, shoulder pain, and TMJ problems pre-accident and was taking Naproxen and would also take Tylenol 3 in combination if the Naproxen did not ease her headaches.

[75] The plaintiff was subjected to intensive cross-examination regarding her pre- and post-accident physical and psychological conditions and confronted with previous sworn evidence given by her at her examination for discovery. I will deal with her evidence and my conclusions arising from that evidence later in these reasons under the heading “Issues”. Suffice it to say, at this time, that it is sufficient to state that her evidence under cross-examination was replete with answers I found to be evasive and many inconsistencies were noted with respect to her previously sworn evidence on discovery and the evidence she gave at trial. These of course go to the reliability and trustworthiness of the plaintiff’s evidence. When attempting to find the truth the court is required to ascertain if harmony can be found with the evidence of the plaintiff utilizing other evidence of others on the issues relative to the plaintiff’s position. This becomes very important in cases such as this where the plaintiff’s complaints are with respect to mental and psychological issues for which there are no objective findings upon which the court can rely. The collateral evidence is also important where continuing physical ailments are complained of when medical evidence, dating back to shortly after the MVA, would be inconsistent. This is especially so in this case where the plaintiff’s credibility, reliability and trustworthiness is called into question and where there has been evidence of independent and impartial witnesses that is so contrary to the evidence of the plaintiff with respect to these issues.

[76] Two of Ms. Thiessen’s medical treators gave evidence regarding Ms. Thiessen’s pre-accident condition which I shall deal with in further detail; being Drs. Hagen and Schokking. Both generally testified that it was fair to conclude that the plaintiff did indeed have a long history of psychiatric buttons being pushed and psychiatric reactions to them. In particular, Dr. Hagen agreed that an entry that had been put to the plaintiff in her cross-examination regarding a doctor’s visit for marital therapy referred to a point in time that the plaintiff was significantly stressed and under great pressure due to her husband not working and the financial stress arising from that. Dr. Schokking, in his evidence dealing with the pre-accident condition of the plaintiff, stated that the plaintiff’s pre-accident medical chart was significant with respect to a psychiatric history and that there were a number of psychiatric decompensations, including the problems in her marriage. Dr. Schokking referred specifically to notations in the clinical notes (Exhibit 2, tab 1(a), page 10) where in February 1999 the plaintiff had indicated she was dying of pneumonia when she appeared to have only sinus congestion. This was seen by Dr. Schokking as an example of her histrionic personality. Dr. Schokking testified that during the course of his attendance on the plaintiff she had told him that a number of people had raped her, including her father and uncle. Dr. Schokking also testified that he found her to be an advocate, not just for herself but also for members of her family. He recalled her as a frequent attendee requesting numerous things and opined that her main complaint over the time that he treated her following the MVA was financial and that she would complain about being inadequately compensated and complain about money and lack of money.

MEDICAL EVIDENCE

[77] Over the course of the trial I heard medical evidence from medical doctors and psychiatrists called by both the plaintiff and the defendant. The plaintiff called Dr. Catherine Hagen who, along with her partner Dr. Ian Schokking were the treating physicians of the plaintiff from shortly after 1995 when they purchased the medical practice of Dr. Paul Mallam who had treated the plaintiff for some 15 years. Dr. Hagen was called by the plaintiff while Dr. Schokking was called by the defence. In addition, the plaintiff called Dr. Griffiths, the plaintiff’s treating psychiatrist since May 2006; Dr. Brink, psychiatrist, who attended the plaintiff in the year 2000 at the request of Dr. Hagen, and Dr. Singh, psychiatrist, Dr. Shahnawaz, medical doctor, and Dr. Grobbelaar, medical doctor. In addition to Dr. Schokking, the defendant called Dr. Elisabeth Zoffman, forensic psychiatrist, and in her evidence were her reports dated March 28, 2001 and September 22, 2003.

[78] The plaintiff ceased attendance at the medical offices of Dr. Hagen and Dr. Schokking in 2001. The evidence of these doctors confirm, without a doubt, that the plaintiff has had a long history of what is termed “decompensations from psychiatric stressors” before the subject motor vehicle accident. The decompensations included a diagnosis of delayed onset of post-traumatic stress disorder, made in April 1997, the loss of her family’s wealth, her husband not working between 1996 and 1998, and minor health issues which were seen by the plaintiff as being possible death threatening.

[79] Dr. Hagen agreed that it was “very fair” to say that the plaintiff had a long history of psychiatric buttons being pushed and corresponding psychiatric reactions to them. She also agreed that any experienced medical practitioner would describe the plaintiff as being difficult and a dramatic patient from the outset. Dr. Schokking added to this assessment of the plaintiff by stating that Ms. Thiessen’s pre-accident medical chart was significant with respect to her psychiatric history, and he included her marriage as being a psychiatric decompensation. Again, he testified that her main complaint while she was a patient was financial and that she would complain about being inadequately compensated, complained about money and not having enough money.

[80] It is sufficient to say with respect to the evidence of Dr. Brink and Dr. Zoffman that there is consensus that they all agree that the plaintiff has a histrionic personality condition, with the only disagreement being whether or not a disorder is made out.

[81] Dr. Schokking, in his testimony, described a histrionic situation as being a spectrum whereby many of the criteria set out in The Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”) are in evidence. He testified that there was indeed overlap between having a disorder and having traits. I found his evidence with respect to the diagnostic criteria for histrionic personality disorder to be of assistance in considering the circumstances of the plaintiff immediately prior to the motor vehicle accident. The eight criteria set out in DSM-IV starts with this preamble and the following eight criteria:

A pervasive pattern of excessive emotionality and attention seeking, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:

(1) Is uncomfortable in situations in which he or she is not the centre of attention;

(2) Interaction with others is often characterized by inappropriate sexually seductive or provocative behaviour;

(3) Displays rapidly shifting and shallow expressions of emotions;

(4) Consistently uses physical appearance to draw attention to self;

(5) Has a style of speech that is successfully impressionistic and lacking in detail;

(6) Shows self dramatization, theatricality, and exaggerated expression of emotion;

(7) Is suggestible ie. Easily influenced by others or circumstances;

(8) Considers relationships to be more intimate than they are.

[82] With respect to each of the eight criteria, Dr. Schokking responded to them as follows:

(1) With respect to criteria 1 he pointed to the way that the plaintiff presented in his office over the years before and after the motor vehicle accident, pointing to the fact that when she was stressed the plaintiff desired to be the centre of attention.

(2) With respect to criteria 2, Dr. Schokking pointed to the way the plaintiff dressed in his office as being rather suggestive.

(3) With respect to criteria 3, he testified that she indeed did display these expression when stressed.

(4) With respect to criteria 4, Dr. Schokking again referred to the plaintiff being dressed in a somewhat revealing manner.

(5) With respect to criteria 5, he indicated that that criteria was met to some degree in that the plaintiff can be quite articulate.

(6) With respect to criteria 6, Dr. Schokking testified that it was very much the way the plaintiff presented.

(7) With respect to criteria 7, he testified that he had observed on many occasions the plaintiff’s stories changing over time and he considered this to be some evidence of this criteria.

(8) With respect to criteria 8, Dr. Schokking agreed that the plaintiff would describe other people’s relationships as being much closer than these others would describe their relationship and he noted that to have occurred with him personally when the plaintiff attempted to call him by his first name.

[83] I have concluded, on the basis of all the evidence I have heard, that the plaintiff indeed has a histrionic personality that predated the motor vehicle accident in question.

[84] Based on Dr. Schokking’s own interaction with the plaintiff over the relevant times, Ms. Thiessen’s life stressors over that three year period, I accept his evidence with respect to her personality traits. Essentially his conclusion was that the accident made no lasting change to the plaintiff’s current psychological state. His opinion was that it was the litigation that affected her personality. Essentially, as I understood his evidence, that would correspond with his previous testimony that the plaintiff, in his attendances on her, was primarily concerned with the litigation.

[85] It is somewhat surprising that one partner of a medical practice that treated the plaintiff from time-to-time would be called by the plaintiff and the other partner by the defence. Dr. Hagen, on a review of her evidence, I find was relying heavily on the plaintiff’s self-reporting and, of course, this is a flaw when one considers the credibility, trustworthiness and reliability of the person providing the self-reports. Dr. Hagen was, throughout her testimony and cross-examination, straightforward in her presentation in court and did not appear to be advocating on behalf of the plaintiff. The acceptance of the reports coming from Loretta Thiessen has, I believe, led to a flaw in the evidence of Dr. Hagen, particularly with respect to the plaintiff’s functioning immediately prior to the motor vehicle accident. Dr. Hagen in fact testified that following the plaintiff’s hysterectomy pre-accident the plaintiff was probably functioning at the best that she had been and was working in accounting and supporting her husband in his business. This would appear to be inaccurate given other evidence that I heard during the trial, including the fact that the plaintiff was not working in accounting until 1998 and then only marginally, and neither was she performing any bookkeeping of substance for her husband’s company, which at the time was doing work, apparently solely, for B.C. Corrections and therefore would not be supporting her husband at work at all during this time.

[86] In addition, the evidence of Gerald Thiessen, Wanda MacLean and Kathy Taylor is that at that time the plaintiff’s behaviour was getting worse.

[87] With respect to the plaintiff’s recovery from the MVA, in particular I would refer to the doctor’s clinical records of August 26, 1999, where this entry appears:

. . . Continues to use Tylenol 3 up to 8 tablets daily, for unremitting shoulder, neck and mid-back pain . . . Spontaneous head movement and range of motion improved, in spite of patient’s assertion there is no improvement. Range of motion at the shoulder bilaterally very good when distracted by conversation.

[Emphasis added]

[88] Dr. Hagen’s September 30, 1999 entry, as previously indicated, discloses that the plaintiff had returned to normal activities. Dr. Hagen had made this entry based on the subjective reporting by the plaintiff:

Improved pain and function; patient reports she has returned to normal activities including housecleaning, with the exception of vacuuming. New issue: marital conflict, concerning function in home, parenting activities, and lack of mutual attention/listening. Strongly encouraged to pursue marital therapy; referred to Walmsley & Assoc.

[89] Under cross-examination Dr. Hagen agreed that the September 30, 1999 entry demonstrated that the plaintiff had returned to all of her activities of daily living except for vacuuming and that although this did not mean that the plaintiff was 100% recovered she was on her way to having a good recovery from her physical injuries sustained in the accident. Dr. Hagen testified that she believed the plaintiff was “on track, particularly given her underlying personality of distress”.

[90] Dr. Hagen was questioned under cross-examination with respect to significant psychiatric stressors or buttons. She agreed that stressors, including marital break-up, job loss and resultant financial consequences, alleged sexual abuse or alleged physical abuse, death in the family or serious illness in the family, can be described as those. She also agreed that if there were more than one significant psychiatric stressor when pushed at or about the same time, such as job loss with financial consequences, alleged sexual and physical abuse, and marital break-up, would all work cumulatively to most likely lead to a significant psychiatric reaction to these various buttons being pushed at or about the same time.

[91] Dr. Hagen was also confronted with reports that she had provided to ICBC. She agreed with her March 16, 2000 report where the first period of disability was indicated to be from July 23, 1999 to October 14, 1999, relative to physical symptoms suffered in the MVA. She also agreed under cross-examination that a December 6, 1999 medical report authored by her stated that the level of marital discord was “moderate” although Mr. Thiessen had lost his job in October. She further agreed, under cross-examination, that it would have been after Mr. Thiessen lost his job when there were extreme difficulties and a severe marital problem.

[92] Of particular interest, in her December 6, 1999 report, Dr. Hagen essentially concluded at p. 2 that the plaintiff’s scalp injury had resolved over a 3 to 4 week period, any pulmonary or chest pain had also resolved and that whiplash or bilateral neck pain radiating to the shoulders, although ongoing, had reduced in severity.

[93] On p. 3 of that report, under the heading Diagnosis and Prognosis, Dr. Hagen stated:

I would suggest that the headache frequency is dependent of the resolution of her ongoing marital and financial difficulties.

Dr. Hagen also made the same comment with respect to post-traumatic stress symptoms. On cross-examination Dr. Hagen agreed that these were accurate statements and she stood by those statements as the plaintiff’s ongoing marital and financial issues were, at that time, the most significant issues facing the plaintiff.

[94] Dr. Shahnawaz, the current treator of the plaintiff, also provided evidence. Regretfully, he also relied on the plaintiff’s self-reporting either to himself, or to other doctors, as set out in the plaintiff’s medical records. He too, I find, made an error in accepting what she told him to conclude that immediately prior to the accident the plaintiff was functioning at a normal level, both socially and at home. It is to be recalled that when he first saw the plaintiff in 2002 it was some three years after the accident and his information was taken, primarily, from the plaintiff directly in forming his opinion of the plaintiff. He did realize there were differences between what the plaintiff had told him and what was revealed in Dr. Hagen’s records, primarily with respect to personality traits or disorders.

[95] Likewise under cross-examination Dr. Shahnawaz testified as to “relying on what Ms. Thiessen told him as being accurate and reliable”. As a busy family practitioner he relied heavily on what psychiatrists had said relating to Ms. Thiessen’s psychiatric issues. He too agreed that it was necessary to look at a patient’s history to see what psychiatric stressors have occurred in an individual’s life and that it would be realistic to expect a similar response of psychiatric illness in the future, as in loss of financial wellbeing, as had been experienced by the same patient in the past. Given his complete reliance on the information provided by the plaintiff, I have concluded that the weight of his opinion must also be suspect.

[96] Dr. Brink, psychiatrist, was the last medical doctor/psychiatrist to be called by the plaintiff. He saw her following a referral from Dr. Hagen in 2000. He too relied on the self-reporting of the plaintiff to be accurate as to the underlying facts to his opinions. It became clear in cross-examination of Dr. Brink that the plaintiff’s self-reporting was consistent with the information that she provided to Dr. Hagen, in that they were not accurate. Under cross-examination Dr. Brink agreed that his goal on the referral was limited to treatment and that he did not practice at all in the area of psychiatry practised by Dr. Zoffman whose speciality is forensic psychiatry.

[97] Dr. Brink explained under cross-examination how his attendances on Ms. Thiessen were time limited, which not only limited his time with her but also time to review any materials or facts with respect to the plaintiff. While he testified that he did not necessarily accept Ms. Thiessen’s history as being accurate he did accept it for the purpose for which she was referred to him, namely treatment. Due to time constraints he did not review the PGRH file and he was not provided with the file materials of family doctors Hagen and Schokking. He also agreed with the list of significant psychological stressors that had been put to previous witnesses. He agreed that his working diagnosis of post-traumatic stress was not made in the context of a formal disorder as indicated under DSM-IV, and that he did not go through the factors of the DSM-IV to get the diagnosis and that his working diagnosis was only a provisional diagnosis for the purpose of setting up a treatment plan at the time for the plaintiff.

[98] Dr. Brink certainly agreed that his working diagnosis of post-traumatic stress disorder relied heavily on Ms. Thiessen having provided him with accurate and reliable information. He also agreed that with respect to the major psychological stressors of job loss and resultant financial difficulties it is necessary to look at the history to see if this has happened in the past and what the patient’s response was at that time to determine what the likely response would be in the future to similar stressors.

[99] Generally, I have concluded that Dr. Brink’s “working diagnosis” must give way to what I would term the more enlightened conclusions reached by Dr. Zoffman. To a similar extent, I have concluded that the evidence of Dr. Brenda Griffiths, the plaintiff’s present treating psychiatrist, and her opinion filed in these proceedings, must be given very little weight. Under cross-examination Dr. Griffiths agreed that the psychiatric history of the patient, the patient’s underlying personality especially with respect to coping ability, and continuing sequelae from various stressors are all relevant information to forming an opinion. With respect to Ms. Thiessen’s psychiatric history it was clear that Dr. Griffiths was not aware of relevant evidence brought forward during the trial, nor was she aware of relevant evidence respecting the patient’s underlying personality and pre-accident history which were dealt with at trial.

[100] Again, with respect to Dr. Griffiths’ evidence, it was abundantly clear that she, like other doctors in Prince George, relied only on what the plaintiff told her and her predecessors to be accurate, even though, according to Dr. Griffiths, she recognized that the plaintiff was not a good historian. As a result, I have concluded that Dr. Griffiths’ opinion should not be relied upon because she did not have an accurate presentation or understanding of the plaintiff’s psychiatric history nor her underlying personality. An example of this can be found in the fact that Dr. Griffiths was not aware of what the evidence discloses to be years of screaming matches prior to the accident, and personality ups and downs. Regretfully, although Dr. Griffiths attempted to obtain her pre-accident history from the plaintiff, she was unable to be provided with straight answers from the plaintiff and, as a result, it would appear that Dr. Griffiths relied on information which was subsequent to the motor vehicle accident.

[101] Under cross-examination Dr. Griffiths was referred to many pre-accident clinical entries of the family physicians, some of which I have already referred to. She acknowledged as relevant and agreed that a person with such personality traits fits part of the criteria of a histrionic disorder as discussed in DSM-IV. As with other psychiatrists and doctors cross-examined by the defence, Dr. Griffiths agreed that the most stressful psychiatric buttons are marital discord, death in the family, sexual abuse, loss of job and the financial consequences arising from same. She agreed that the circumstances of the plaintiff, including her marital breakdown with Gerald Thiessen, the alleged abuse by her husband, the harassment by Gerald Thiessen, the problems with her daughters, her father’s massive heart attack and her mother’s death, together with Gerald Thiessen losing his job in October 1999 and the financial fallout from the loss of his job, would all be relevant psychiatric “buttons” or “stressors”.

[102] Finally, taking into account the complete history of the plaintiff, including the family fleeing Uganda and the loss of its wealth, and then again in 1997 the loss of the ability of her husband to work, both in 1997 and in 1999, and the consequent loss of wealth, would be serious stressors to Ms. Thiessen because she had experienced the stressor of loss of wealth going back to when she was a young child and the family had emigrated to Canada.

[103] The evidence of Dr. Grobbelaar must also be found to be not worthy of weight because he too did not have all relevant facts or information and he agreed under cross-examination that he accepted the history Ms. Thiessen provided as being accurate. He too was provided with very little information from the family doctor, and in fact, had relied on the provisional conclusion made by Dr. Brink in 2000.

[104] I now turn to the evidence provided by Dr. Zoffman, at trial, and in her two reports dated March 28, 2001 and September 22, 2003.

[105] Dr. Zoffman was the only forensic psychiatrist to interview the plaintiff. Her first report followed an independent medical assessment conducted by Dr. Zoffman on October 27, 2000 over a period of some four hours. At that interview she was provided with a lengthy binder of materials forwarded by Mr. Dunn, counsel for Mr. Kover, and in addition had updated records from the PGRH together with a list of background information and assumptions. As well she was in receipt of statements of the plaintiff dated August 13, 1999 and September 22, 1999. Mr. Dunn laid out some nine assumptions upon which Dr. Zoffman was told she could rely on. Those assumptions were established during the trial of this matter.

[106] Dr. Zoffman practises forensic psychiatry and is a clinical assistant professor of psychiatry at the University of British Columbia. She teaches forensic psychiatry to senior residents and clinical fellows. Since September 2005 she has practised as a full time forensic psychiatrist.

[107] Dr. Zoffman’s first report concludes that she was unable to illicit sufficient symptoms for the indicia of post-traumatic stress disorder. She was unable to conclude that flashbacks referred to by Ms. Thiessen were really flashbacks because flashbacks require some re-experiencing of some element of trauma as though it was actually occurring and happening. She concluded that flashbacks, as understood by psychiatrists, were not made out by the information provided over her four hour interview. In addition, with respect to the driving anxiety expressed by Ms. Thiessen in her interview and subsequently at trial, Dr. Zoffman concluded that the driving anxiety and the driving phobia described must be questioned in light of the collateral evidence, being the evidence of the florist Ms. Eaket and the school bus driver Ms. O’Hagan.

[108] In addition, Dr. Zoffman explained histrionic and narcissistic personality traits. She described histrionic traits as presenting the cognitive style of the vague, imprecise statements that are put very dramatically and which lack details. This personality trait also includes a process of claiming people to be your friends or terrible enemies, and the drama of the presentation.

[109] This evidence I found to be an accurate description of Ms. Thiessen’s presentation at trial and represents a fairly accurate description of the clinical records referred to in trial. Dr. Zoffman, in her March 28 report, concluded that throughout the course of the four hour interview Ms. Thiessen clearly had a tendency to histrionically dramatize her story and, at p. 22 of that report, provided examples of those histrionic dramatizations. Commencing at p. 23 of her March 28, 2001 report, Dr. Zoffman described Ms. Thiessen’s current stressors, at that time, as being her marital break-up and the difficulties in her relationships with her daughters as well as a recent move and financial difficulties. She then went on to rule out post-traumatic stress symptoms possibly related to the MVA. At p. 23 she stated:

. . . Mrs. Thiessen is vulnerable to a re-exacerbation of the underlying difficulties experienced prior to the July 23, 1999 accident. Due to the unreliability of the history, it is hard to say how much of her pre-existing history (fleeing from Uganda, sexual assault, physical assault from father and ex-husband) have contributed to her stress vulnerability and have effectively made her symptoms pre-existent.

[110] As previously indicated she also, under the heading diagnosis, concluded that because of the collateral evidence regarding her driving, the reliability of a history of a driving phobia must be questioned. At p. 25 she commented, with respect to the stressors on Ms. Thiessen, that:

The stressors for this woman in the context of her personality functioning have been quite marked. These include the motor vehicle accident in July, 1999. Further, her on-going marital difficulties, her difficult relationship with her daughters, financial stressors and on-going perceived pain are significant to her current level of dysfunction. Further, the intervening variable of on-going litigation is both a complicating and stress inducing factor.

[111] With respect to causation regarding the diagnosis of anxiety and depression, Dr. Zoffman stated, at p. 25 and following:

With respect to the diagnosis of anxiety and depression, the clinical records indicate that Mrs. Thiessen had significant past problems with depression and anxiety which required medical and pharmacological intervention. The underpinnings of her depression in the past have been multifactorial. She has been affected by a number of psychosocial stressors and difficulties in her relationships. The problems with anxiety, insomnia and feeling “on edge” were documented up to February/March 1998.

There is no information regarding her mood state in the 6-9 months prior to her motor vehicle accident.

The post-motor vehicle accident records indicate that Mrs. Thiessen was experiencing a reasonable trajectory of recovery until she started experiencing marital problems. She states that the marital problems occurred in the context of on-going pain and discomfort.

It would appear that Mrs. Thiessen’s low mood and anxiety problems steadily increased from October/November, 1999 until the early summer of 2000.

I am of the opinion that Mrs. Thiessen’s difficulties with anxiety and depression are largely pre-existent. However, one cannot reasonably state that the pain and disability and increased anxiety related to the experience of the motor vehicle accident have not had a role to play in the mental and emotional turmoil of the past year and a half. However, given this woman’s past history of significant episodes of anxiety and mood changes and her exquisite sensitivity to real or perceived abandonment, she would be at high risk of recurring episodes of anxiety and depression over the course of her lifetime.

[112] With respect to post-traumatic stress, at p. 26, Dr. Zoffman commented as follows:

With respect to the diagnosis of Post Traumatic Stress symptoms, I am of the opinion that the experience that Mrs. Thiessen had of the July 23, 1999 accident would have been quite frightening for her. As outlined above in my report, it is unclear exactly what the sequelae of the increased fear/anxiety have been. Mrs. Thiessen was vulnerable to developing further episodes of Post Traumatic Stress Disorder based upon her personality construct as well as the history available in the clinical notes indicating that she had experienced similar symptoms after the first motor vehicle accident in 1993. Due to factors of questionable reliability, it is difficult to quantify the contribution of prior experiences of sexual abuse and the traumatic disruption of becoming a refugee.

[113] Overall, Dr. Zoffman concluded in March 2001 that Ms. Thiessen was clearly dysfunctional based on her interview and what was reflected in the clinical notes of her family doctors:

. . . her difficulties stem chiefly from personality issues and are related to the adjustments that she is having to make as a result of marital breakdown, separation from her daughters, change in her living situation and financial stressors.

She further stated at p. 28:

. . . there is no doubt that she suffers from anxiety and depression and she is much more vulnerable to these conditions as a result of her personality construct. . . .

[114] At that time, with respect to a return to work, Dr. Zoffman concluded that there was not enough reliable information to form an opinion on a return to work.

[115] With respect to a possible brain injury, she concluded that the problems exhibited by Ms. Thiessen following the accident were more typical of an adjustment disorder or depression than of a brain injury.

[116] As a result of a request for an updated opinion from counsel for the defence, a further report of September 22, 2003, was furnished. Mr. Dunn also provided updated clinical files and the reports provided by Dr. Hagen (March 16, 2000) and Dr. Shahnawaz. In addition, further information arising from discoveries conducted in 2003 by counsel for the defence were provided.

[117] In answer to a question from Mr. Dunn as to whether or not the new information including the discovery evidence outlined in Mr. Dunn’s letter confirm her previous opinions set out in her March 2001 report, she stated:

The additional documents and the discovery information do not substantially change the opinions outlined in my March 28, 2001 report. Post Traumatic Stress symptoms (but not disorder) were present during the October 2000 evaluation. The evaluations that have been done subsequently do not document the necessary diagnostic criteria and Ms. Thiessen’s ongoing psychiatric symptoms appear to more relate to chronic social and familial stressors.

The additional inconsistencies in her information further confuse the picture with regard to traumatic stress reactions. The information just revealed about sexual assault by her husband in the fall of 1999 would have a significant effect on her psychological functioning. Likewise, the history of violence and harassment from Gerald Thiessen after their separation would be relevant to her clinical condition. There is no clarity about the presence or absence of childhood sexual abuse or violence at the hands of her father. While she told me that she had not actually witnessed any violence in Uganda she had told Dr. Grobbelaar subsequently that she did (finding the origins of her fear).

[118] At p. 9, para. 4, she was asked to comment as to what Ms. Thiessen would be like but for the accident. She opined:

In my opinion the July 1999 accident added to her burden of physical injury and, for a period of time impaired her coping abilities. She may have had some post traumatic symptoms (not disorder) that were an expected response to the accident in the context of the PTSD she suffered in 1993. Her history about other traumas is unreliable as she asserts and retracts these stories at different times. Her psychological functioning after the fall of 1999 appears to be determined by family and marital issues.

I note that she was still working on starting a business before the accident and her employment was related to keeping her husband’s books. She has not been thus employed since the 1999 MVA. She revealed in interview that she and her family were working on starting a business making bubble bath, she had contracts with some ‘Dollar Stores’ and was waiting to see where this was going. Thus it would appear that she was making similar efforts at self-employment in 2000. There has been a decline in her functioning since 2000. She has been receiving home help, she is receiving a Disability II welfare pension and her doctor’s notes reveal application for a Handydart pass. This decline in her function is related to personality disorder and mental illness issues that are arising in the context of ongoing life stressors. I am of the opinion that her current condition is largely determined by her pre-existing psychological condition which consists of Mixed Personality Disorder (Cluster B Traits) and a propensity for depression and anxiety. The accident was a stressor, which caused physical and psychological problems (anxiety, fear of driving). However the subsequent events in her life and her response to these events, which flow from her underlying personality, largely determine her current psychological status.

[119] Finally, at p. 11 Dr. Zoffman encapsulated her opinion of the plaintiff’s condition as follows:

In my opinion, the inconsistencies reflect this woman’s underlying personality and her manner of coping with her world. The histrionic style focuses on and magnifies current events and complaints and the cognitive style is to globalize the problem. That means that they lose sight of the fact that the problem or symptom began at a certain point and may have ended at another. They recollect them as though they have always been present and attribute them to psychologically significant events. Ms. Thiessen also appears to have a tendency to dramatize events in her past – thus the events Uganda (which are distressing enough on their own) get embellished to witnessing massacres that she has been told about or read about. This process may well also underpin the stories of sexual abuse she brought out in 1997 (collateral from the sister alleged to have brought this out would be helpful).

Ultimately, the discrepancies between her self-report and objective findings and the different versions of her self-report make it difficult to come to firm diagnostic conclusions about her various diagnoses.

These opinions were maintained by Dr. Zoffman at trial. Under extensive cross-examination plaintiff’s counsel addressed the records that had been provided to Dr. Zoffman, but I have concluded there was no suggestion of any particular documents that were not provided to Dr. Zoffman that would have been relevant or would have changed the opinions set out by Dr. Zoffman in her two reports. She also noted that although she had been provided with information through Mr. Dunn of Ms. Thiessen’s examination for discovery, Dr. Zoffman had determined that it would be hard to rely on this information given the source being Ms. Thiessen. She did however confirm essentially what was contained in her opinion, that she was not saying that the 1999 MVA did not have any role in her condition. This one role related to Ms. Thiesson’s alleged inability to drive if one accepted what the plaintiff said as being reliable and accurate.

ISSUES

[120] The issues arising out of this law suit consist of the following –

(1) The truthfulness and reliability of the plaintiff;

(2) The reliability of the evidence of various witnesses, taking into account that the trial was heard some eight years after the motor vehicle accident;

(3) Given reliability and credibility issues regarding the plaintiff’s testimony, what were the plaintiff’s medical and psychiatric conditions following the accident;

(4) What are the causes of the plaintiff’s medical and psychiatric conditions given her abundant pre-accident psychiatric history and personality, her life style and family issues, and the post-accident psychiatric “buttons” or “stressors” which may be real in fact, or as submitted by the defence, “part of the plaintiff’s subjective reality”.

[121] After making conclusions with respect to the above, then the principle question for the court is to determine the proper measure of damages to return the plaintiff to her “original position” or what her position would have been both psychologically and physically “but for” the motor vehicle accident. The plaintiff, in counsel’s written submissions of October 5, 2007, conceded at para. 128:

. . . That due to her memory and emotional difficulties that her evidence alone was not sufficient to meet the burden of proof on the plaintiff.

But nevertheless the plaintiff goes on to ask the court to accept the plaintiff’s evidence in preference to other witnesses called by the defence, including the evidence of Mr. Strom and Gerald Thiessen as to activities in the tow yard the day following the accident; Mr. Thiessen’s further evidence where he stated that there were problems between himself and the plaintiff for about a year up to when they finally separated; the school bus driver, Doreen O’Hagan, and Laurie Eaket as to the plaintiff’s post-accident driving which has been denied by the plaintiff throughout this litigation.

[122] The issue of the plaintiff’s credibility is central to this case because the accuracy, truthfulness and reliability of the plaintiff’s self-reporting is so important as the medical evidence relied on by the plaintiff in the presentation of her case is either based entirely on the self-reporting of the plaintiff, either directly or indirectly. Perhaps the best and most widely used statement regarding credibility in this province is found in Faryna v. Chorny, [1952] 2 D.L.R. 354, where at p. 356 O’Halloran J. A. stated:

. . . Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say “I believe him because I judge him to be telling the truth”, is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. . . .

[Emphasis added]

[123] In addition, as it is with all cases that depend on self-reporting (ie. where there are no observable physical injuries) the truthfulness of the plaintiff must also be viewed objectively. I again turn to the testimony of Kathy Taylor of what occurred between her and the plaintiff in August 1999. According to Ms. Taylor the plaintiff had asked Ms. Taylor to provide a letter for her stating that Ms. Taylor would hire her on a full time basis when Ms. Thiessen knew that this simply was not true. It must also be recalled that Kathy Taylor, in addition, gave evidence that when she refused the plaintiff became very angry with her for not providing such a letter. Kathy Taylor also testified that the plaintiff had told her that she believed she was under surveillance by ICBC and, as a result, she told Kathy Taylor that she was unable to do things, like carry groceries, because if she was seen doing this activity it would lessen what her case was worth. This evidence must also be considered in light of what Gerald Thiessen had testified to, namely that in or about August 1999 or a month after the MVA, she had told him that they should separate in order to increase her claim.

[124] Similarly, the post-accident driving, which has been repeatedly denied by Ms. Thiessen, is contrary to the evidence of the school bus driver Ms. O’Hagan and the florist worker Ms. Eaket. While one may be able to differ with another on what was said at a particular time, the observation of driving is a fact without any subjective interpretation involved. It is also important, in this case, to note that Ms. Eaket was not cross-examined with respect to her observations.

[125] Under the heading of truthfulness, one must also consider the evidence of the plaintiff with respect to employment and her claims regarding lost employment as a result of the accident. When the plaintiff was under cross-examination regarding the fact that she did not have any available work when TKT Plumbing and Heating was no longer operating and her other part-time employment with Ms. Cramer was no longer available, she testified that Mr. Vic Schwab, a well-known chartered accountant in Prince George, was a friend who she saw socially who would have hired her. Mr. Schwab was called as a witness by the plaintiff and regretfully for the plaintiff gave evidence to the contrary. He stated, in cross-examination, that in total he had talked to the plaintiff some two times, one being in the fall of 1998 and the other being a very brief meeting when the plaintiff dropped off Ms. Cramer’s company books at his office. His only contact with the plaintiff was professional contact as a result of his acting for Ms. Cramer.

[126] With respect to the truthfulness of the plaintiff, I have determined that the totality of the evidence makes it inescapable that the plaintiff has been untruthful and her credibility is in question when one compares her evidence at trial with what she has, I believe, said to others in assessing its harmony with what others have stated. The reliability of the plaintiff is certainly also very questionable.

[127] The plaintiff stated that the pre-accident state of her marriage to her husband Gerald Thiessen was “good”, although she confirmed that Mr. Thiessen gave her an ultimatum for her to quit her drinking or he would leave. The fact of a good marriage was also contrary to the evidence of her husband, including various friends and neighbours who, as indicated, provided evidence of the plaintiff’s behaviour and that the marriage was not good and was getting worse prior to the accident.

[128] Ms. Thiessen also gave contrary evidence as to her functional abilities and activities at the tow yard the day after the accident which evidence is contrary to that of Orval Strom, the tow truck operator, and Mr. Thiessen.

[129] In addition, the December 12, 1989, clinical note which was put to her regarding her feelings of losing control and being acutely depressed was disputed at first, but then, the plaintiff changed her mind when it was noted that she was on leave from work at the time.

[130] Various issues involving the answers that she gave at her examination for discovery and the evidence that she gave at trial were brought home to her in cross-examination. For instance, with respect to a clinical entry dated August 26, 1999, relative to a possible return to work as early as the next week, the plaintiff stated at trial that it was Dr. Schokking who kept telling her “a little longer Loretta” when she wanted to know when she could go back to work. At her examination for discovery she had testified that it was Dr. Schokking who was suggesting that she go back to work. In cross-examination she was asked if her examination for discovery answers were true, and she merely replied “yes, at that time” but that she was intoxicated while being discovered and that now, at trial, she believed it was untrue.

[131] A similar event occurred with respect to the issue as to whether or not she had sustained sexual abuse as a child. During trial the plaintiff testified that it was in fact Gerald Thiessen’s sister, Wanda MacLean, who was sexually abused as a child. Thereafter, another portion of her examination for discovery testimony was put to her with that excerpt being that it was her sister who was sexually abused. The plaintiff merely stated at trial that those answers were true “when I gave you these answers in 2003, but I could not make sense of it right now. At the time they were true but not true today”. Again, with further cross-examination regarding her hysterectomy in 1996 and evidence concerning that given at her discovery, she again stated that she believed her answers given at the discovery were true at that time, but that she was medicated and intoxicated.

[132] Further, under cross-examination, it was put to her that she had told Dr. Zoffman that a doctor had prescribed marihuana for her, but conceded at trial that it was not prescribed for her, but that a neurologist had mentioned marihuana for pain control prior to her meeting her husband in 1990. At discovery she said that the only person she remembered advising her to smoke marihuana was her husband. Again at trial she merely stated that she believed that to be true at the time. Similarly, with respect to her attendance at the tow yard at Logan Lake following the accident, she agreed that she was looking for a knitting needle and that she went inside the damaged vehicle. She denied that she was crawling around in the vehicle as she would not be able to breathe if she did that. She was again referred to evidence from her examination for discovery where she had stated that she was doing precisely that. She again stated that her answers were true at that time but that she was very intoxicated.

[133] A similar response was made by the plaintiff with respect to a September 30, 1999 clinical entry where her self-reporting had led to the following entry:

. . . Improved pain and function; patient reports she has returned to normal activities including house cleaning, with the exception of vacuuming. New issue: marital conflict, concerning function in home, parenting activities, and lack of mutual attention/listening. Strongly encouraged to pursue marital therapy; referred to Walmsley & Associates.

When put to her that her answers at the examination for discovery were true, namely that she told Dr. Hagen that she felt better such that she was able to return to normal activities, she merely stated that it was what she believed on that day but not “today”.

[134] Another aspect that tests the reliability of the plaintiff is the stressor that lack of employment income can bring to a family unit. Contrary to the evidence of Gerald Thiessen and other lay witnesses, Ms. Thiessen originally said that even with Mr. Thiessen’s job loss they were secure financially because they had sold assets such as a tractor trailer and had lived-off credit cards. She was directed to answers provided at her examination for discovery, namely that Mr. Thiessen’s job loss was very difficult for both she and her husband. Again she stated the answers were true at the time. It is clear from the evidence of her treating doctors that the financial loss they were experiencing as a family unit was stated as being very stressful on the plaintiff. Mr. Thiessen, under cross-examination, had also confirmed that when he was not working that was a difficult time for the plaintiff.

[135] These are but some of the testimony given by the plaintiff at trial on which she was confronted with sworn evidence given at her examination for discovery. My conclusion is that the plaintiff’s evidence is unreliable and therefore the essence of what she told her treators over the years primarily up to when this action was in reasonable contemplation by the plaintiff can only be treated with caution objectively and must be viewed in light of her own personality makeup. I have no reason to disbelieve the evidence of Gerald Thiessen. His evidence of the plaintiff suggesting they separate in August 1999 to increase the legal claims regarding the trial can, in my view, be utilized as the date upon which litigation was being contemplated by the plaintiff.

CONCLUSIONS WITH RESPECT TO THE MEDICAL EVIDENCE PRIMARILY WITH RESPECT TO PSYCHIATRIC OR PSYCHOLOGICAL CONDITIONS

[136] As I have already stated at the beginning of these reasons, the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries (Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-14). Throughout, the plaintiff bears the burden of showing that “but for” the negligent act or omission of a defendant, the injury would not have occurred.

[137] In the recent decision of Hanke v. Resurfice Corp., 2007 SCC 7, at para. 23, the Supreme Court of Canada commented, with respect to this rule, as follows:

The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and 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.

[138] In Blackwater v. Plint, [2005] 3 S.C.R. 3, the Supreme Court of Canada also dealt with the issue of legal causation and was commented on extensively. In that decision the Court confirmed that prior causes and subsequent causes of damages must be taken into account by the trial judge even though it may be difficult to do so where there are multiple causes. In this regard, Chief Justice McLachlin stated at para. 74:

. . . Untangling the different sources of damage and loss may be nigh impossible. Yet the law requires that it be done, since at law a plaintiff is entitled only to be compensated for loss caused by the actionable wrong. It is the “essential purpose and most basic principle of tort law” that the plaintiff be placed in the position he or she would have been in had the tort not been committed: Athey v. Leonati, [1996] 3 S.C.R. 458 (S.C.C.), para. 32.

[139] Further, commencing at para. 78 to 81, Madam Justice McLachlin, in her reasons, stated as follows:

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. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: Athey. Mr. Barney’s submissions that injury from traumas other than the sexual assault should not be excluded amount to the contention that once a tortious act has been found to be a material cause of injury, the defendant becomes liable for all damages complained of after, whether or not the defendant was responsible for those damages.

79 At the same time, the defendant takes his victim as he finds him – the thin skull rule. Here the victim suffered trauma before coming to AIRS. The question then becomes: what was the effect of the sexual assault on him, in his already damaged condition? The damages are damages caused by the sexual assaults, not the prior condition. However, it is necessary to consider the prior condition to determine what loss was caused by the assaults. Therefore, to the extent that the evidence shows that the effect of the sexual assaults would have been greater because of his pre-existing injury, that pre-existing condition can be taken into account in assessing damages.

80 Where a second wrongful act or contributory negligence of the plaintiff occurs after or along with the first wrongful act, yet another scenario, sometimes called the “crumbling skull” scenario, may arise. Each tortfeasor is entitled to have the consequences of the acts of the other tortfeasor taken into account. The defendant must compensate for the damages it actually caused but need not compensate for the debilitating effects of the other wrongful act that would have occurred anyway. This means that the damages of the tortfeasor may be reduced by reason of other contributing causes: Athey, at paras. 32-36.

81 All these scenarios flow from the basic principle that damages must seek to put the plaintiff in the position he or she would have been in but for the tort for which the defendant is liable.

[140] In addition to these comments by Chief Justice McLachlin it is also important to again consider the statements of Lambert J.A. in Yoshikawa v. Yu set out in these reasons at para. 11.

[141] Thus, if there is some realistic chance that the plaintiff’s condition would have occurred at some point in the future without the accident, including consideration of intervening events unrelated to the motor vehicle accident, this will affect the quantum of damages. Thus the real legal issue with respect to the psychiatric issues is whether or not the evidence supports the proposition that the plaintiff would likely have suffered from the psychiatric illness or conditions she now has if the accident had never occurred, and if so, then to what degree.

[142] Looking at the totality of the evidence regarding the ongoing psychological conditions of Ms. Thiessen, I repeat again that the burden or onus of proof is on the plaintiff to show that but for the negligence of the defendant Kover the psychiatric or psychological conditions now experienced by the plaintiff would not have occurred.

[143] For the reasons set out I have concluded that Ms. Thiessen has not met this onus. Given her history of pre-existing psychiatric illnesses and the numerous stressors of the plaintiff that have been experienced by her prior to the accident and subsequent to the accident, I have concluded the burden has not been met by the plaintiff. I accept the evidence of Dr. Zoffman that it is, in all probability, that her psychiatric or psychological conditions would have evolved from the other stressors in her life other than stress related to the motor vehicle accident.

[144] Having had the ability to observe the plaintiff for days under direct examination and cross-examination, I have concluded, as have all the medical doctors called at this trial, that Ms. Thiessen is an unreliable source of information. As I have previously stated with respect to the plaintiff’s medical evidence, called by her, it is, in all probability, that these doctors relied on the accuracy of the self-reporting of the plaintiff and this was a flaw, and as I have indicated, is fatal to their opinions. The only doctors that had any real knowledge and appreciation of the plaintiff’s pre-accident history were Drs. Hagen, Schokking and Zoffman. The evidence provided to Dr. Zoffman upon which she based her opinion certainly contained more relevant collateral evidence by way of the information she was provided and the assumptions she was asked to operate on. Those assumptions were, in my view, clearly set out in the evidence.

[145] I accept, as indicated in these reasons, that the medical opinions of Dr. Zoffman and Dr. Schokking are more compelling and essentially agree that Ms. Thiessen’s continuing complaints are not as a result of the motor vehicle accident but as a result of the other factors or stressors in her life, and which were engaged by her pre-existing psychiatric and psychological makeup. In addition, I have considered the issue of the plaintiff’s evidence of her inability to drive since the MVA and the contrary evidence of the independent witnesses, Eaket and O’Hagan, and have concluded that their evidence is preferable over the evidence of the plaintiff. I therefore find that the plaintiff did drive a motor vehicle shortly after the accident in question, and I therefore find her to be untruthful with respect to that assertion. Thus, in this case, there is abundant evidence impacting on the reliability and credibility of the plaintiff that dictates the conclusion that any collateral evidence tendered by the plaintiff is insufficient to find for the plaintiff regarding her claims other than the physical injuries sustained by her in the MVA in question. In coming to this conclusion I am mindful of the comment of Southin J., as she then was, in Le v. Milburn, [1987] B.C.J. No. 2690 (15 December 1987), Vancouver Registry No. B81193 (B.C.S.C.), where her Ladyship stated at p. 2:

When a litigant practises to deceive, whether by deliberate falsehood or gross exaggeration, the court has much difficulty in disentangling the truth from the web of deceit and exaggeration. If, in the course of the disentangling of the web, the court casts aside as untrue something that was indeed true, the litigant has only himself or herself to blame . . .

QUANTUM OF DAMAGES

[146] In my view, the quantum of damages as a result must, of necessity, be restricted to the physical injuries established at trial as being caused by the motor vehicle accident of July 23, 1999. The physical injuries which are documented indicate thoracic pain, without radiation, in Ms. Thiessen’s spine, together with anterior sternal pain. Dr. Hagen, in her first involvement on July 29, 1999, diagnosed Ms. Thiessen’s current symptoms as including headache, neck stiffness, back pain. Dr. Hagen noted bilateral paraspinal and trapezius tenderness and abrasions on Ms. Thiessen’s right hip and forearm.

[147] In her August 26, 1999, clinical notes Dr. Hagen noted subjective complaints from Ms. Thiessen of ongoing and unremitting shoulder, neck and mid-back pain. It is noteworthy that at the same time Dr. Hagen noted that Ms. Thiessen’s shoulder movement was better when she was distracted. Dr. Hagen’s opinion in October 1999 was that the plaintiff’s physical damages sustained in the accident had resolved. A new possible physical issue arose in 2003 after her then family doctor, Dr. Shahnawaz, had ordered x-rays. Dr. Shahnawaz stated that he had requested an x-ray as Ms. Thiessen was complaining of pain between her two shoulders. It is noteworthy that x-rays had been taken in Merritt immediately following the accident and no D3 or T4 fracture was noted.

[148] The issue now is whether or not, on the evidence, this fracture can be considered as having been caused by the MVA. Of course there is no question that if the causation is established, then the plaintiff is entitled to compensation for that injury.

[149] Both Drs. Hagen and Schokking treated the plaintiff commencing on July 29, 1999, some six days after the accident, and both are consistent in their evidence that they were not aware of the plaintiff having a thoracic fracture during the time that they were treating her and in particular, Dr. Schokking said that he had no recollection of the plaintiff every complaining of a thoracic spine injury or thoracic spine pain while she was their patient.

[150] Under cross-examination Dr. Shahnawaz agreed that the first x-ray report stated a “D3” fracture while the second report taken March 7, 2003, stated a “T4” fracture. Dr. Shahnawaz admitted that he did not look at the actual x-rays himself with respect to determining which statement of fracture was correct and which was incorrect, although he was aware of pre-accident complaints by the plaintiff of a cracked vertebrae as well as mid-thoracic pains being reported by the plaintiff. He was also aware of her hurting her back fishing while she was a patient of his and that she had been involved in a accident in 1993.

[151] Under further cross-examination Dr. Shahnawaz agreed that it was equally as likely that the 1993 motor vehicle accident caused the compression fracture as shown on the 2003 x-rays as was the 1999 MVA. I might add that with respect to the fishing excursion, the plaintiff’s daughter, Tysheina McCoy, had given evidence with respect to having seen her mother after the fishing excursion and the following day the plaintiff complained to her that she had injured her back and arm and that she was in pain and was unable to get off of her couch. Dr. Shahnawaz also agreed in his cross-examination that in order to relate the findings on the x-ray to any particular event there ought to have been long lasting constant symptoms from that particular area. He also agreed that the symptoms noted by Dr. Hagen in an August 1999 report to ICBC would not have been consistent with a vertebral fracture and that he himself would not have investigated further in that regard if he was the treating doctor at that time.

[152] Taking all of this into account I have concluded that the plaintiff has not established that any fracture to her D3 or T4 is causally connected to the MVA in question. Not only were there lack of complaints of pain relating to such area of her anatomy closely following the 1999 accident, but also the evidence before me does not include any medical evidence by anyone who actually observed the x-ray film in question.

[153] Given what I find to be the fairly quick resolution of the physical damages actually sustained, I am unable to rely on any of the prior assessments of non-pecuniary damages referred to me by counsel for the plaintiff. I have however considered case law which I find to be relevant as put to me by the defence, being in particular Al-mandlawi v. Gara, 2005 BCSC 740; Hall v. Day, 2006 BCSC 874. Based on those decisions I would award the plaintiff $14,000 for non-pecuniary damages. It is implicit in this award that I reject the plaintiff having a driving phobia causally connected by the accident in question. I am not in a position to dismiss the evidence of the witnesses O’Hagan and Eaket regarding her driving, and as a result, the plaintiff has simply not established on a balance of probabilities that a driving phobia was incurred by her causally connected to the MVA.

WAGE LOSS CLAIM

[154] In considering quantum of the plaintiff’s wage loss claim I have considered the evidence of Gerald Thiessen, Kathy Taylor, Florence Cramer and Victor Schwab. I also note the entry of August 26, 1999, in the clinical records of Drs. Schokking and Hagen whereby a possible return to work as early as the following week on a part-time basis was discussed. Coupled with this however must be considered that the evidence with respect to the plaintiff’s pre-accident work history is very sparse. Gerald Thiessen’s evidence was that since 1993 the plaintiff really did not do much work for TKT Plumbing and Heating and that any income allocated to the plaintiff was due to income splitting.

[155] Over the time frame in question, which I would include being from the date of the accident until October 1999, there would have been very little done by the plaintiff over that period of time, except for WCB and GST filings. Coupled with this is the fact that since mid-October 1999 the plumbing and heating company was effectively not operating due to the cancellation of his contract with corrections. There is of course evidence that the plaintiff was doing some bookkeeping for Ms. Cramer’s company, but this is not helpful. Florence Cramer gave evidence for the plaintiff. The plaintiff had done her books from approximately May 1998 to July 1999 when Ms. Cramer operated her insurance commissions through a limited company. At the time the plaintiff was paid approximately $100 per month for the bookkeeping she performed on behalf of Ms. Cramer’s company. In addition, unlike many other cases dealing with loss of income, in this case there is no medical opinion evidence that the plaintiff was unable to perform work that she would otherwise have been doing. The evidence of Mr. Schwab with respect to what accountants could earn was not helpful in this case.

[156] While there was some conflicting evidence regarding for whom a computer the parties purchased immediately following the MVA and to what use would have been made of the computer over the relevant time period, I would guesstimate an award of $500 would be sufficient under this heading. I therefore award, under the heading loss of income, $500.

SPECIAL DAMAGES

[157] The parties were unable to agree as to what special damages should be awarded. I would allow the following damages on the basis that they are by agreement or have been established by the evidence –

Cost of ruined clothing caused by the MVA	$104.25
Physiotherapy not previously paid	30.00

IN TRUST CLAIMS

[158] At the conclusion of the trial, an In Trust claim was advanced by the plaintiff on behalf of her two daughters and her friend Major Deol.

[159] I accept that In Trust claims may be made at the conclusion of the trial without having been advanced in the pleadings.

[160] However, I find that the evidence as to what services were provided by the daughters is vague. There was nothing introduced at trial that the daughters or Mr. Deol experienced direct economic loss because of the time and effort that went into them performing those duties. In addition, there is no evidence that any services provided by the three claimants resulted in replacing expenses which would otherwise have been incurred by the plaintiff, such a hiring a housekeeper (see Cummings v. Olson (1996), 82 B.C.A.C. 241 (C.A.)).

[161] In addition, with respect to the evidence of the daughters one could not help but conclude from their evidence that they did not do much to assist the plaintiff in the time period ending in or about October, but instead, developed behavioural problems and were seen by her treating physicians, Dr. Schokking and Dr. Hagen, to be stressors to the plaintiff’s underlying psychiatric and psychological makeup.

[162] With respect specifically to Mr. Deol, it is noteworthy that although he did provide driving to the plaintiff, that driving was many years after the period of time the physical damages sustained, which were causally connected to the MVA, continued for a period.

SUMMARY

[163] The following is awarded:

Non-Pecuniary Damages	$14,000.00
Wage Loss	500.00
Special Damages	134.25
Total	$14,634.25

[164] I make no award for cost of future care, loss of income earning capacity and the In Trust awards.

[165] As requested by counsel in their submissions, the issue of costs may be spoken to.

“Chamberlist J.”
The Honourable Mr. Justice Chamberlist

Citation:	*Thiessen v. Kover,*
	2008 BCSC 1445