In Tambosso v. Holmes, the Plaintiff was injured in two motor vehicle collisions, and sought non-pecuniary damages for pain and suffering for physical and psychological injuries. As a result of one of the accidents, the Plaintiff alleged to have suffered from post-traumatic stress disorder (PTSD), a major depressive disorder, and a mild traumatic brain injury.

 

The trial lasted for 33 days. The trial judge did not accept the evidence of the Plaintiff, particularly with respect to the Plaintiff’s claim for PTSD. The total amount of the judgement was less than the amounts of money previously advanced by ICBC to the Plaintiff. As a result, the Plaintiff’s claim was dismissed.

 

Counsel for the Plaintiff advanced numerous grounds of appeal, most notably that the trial judge misapprehended the evidence, which included the events of the one accident which the Plaintiff alleged to have suffered PTSD from ; the evidence of the Plaintiff’s family doctor who diagnosed the PTSD; the evidence of a neuropsychologist; and the evidence of numerous lay witnesses who supported the Plaintiff’s claim for PTSD.

 

In regards to the accident where the Plaintiff alleged to have suffered PTSD from, the Plaintiff alleged that the look on the Defendant’s face, in conjunction with him driving towards her, led her to believe that he was going to kill her. The trial judge did not accept such a scenario occurred, believing it to be a fabrication. As a result, he did not consider other evidence of lay witnesses that corroborated the Plaintiff’s version of events, nor did he consider the evidence of the Plaintiff’s experts, as he was of the belief that such reports were based on the Plaintiff’s version of events, which he found to be false. The Court of Appeal ruled that the trial judge misapprehended the evidence of the Plaintiff in this regard.

 

Despite the Court of Appeal acknowledging that there were issues with the Plaintiff’s credibility, a new trial was ordered.

 

[33] The judge misapprehended the evidence of Ms. Tambosso in terms of whether she saw the eyes or look on the defendant’s face, which, in conjunction with him driving towards her, was relied on to establish her claim for PTSD. In finding that her evidence was a complete fabrication, he failed to address the corroborating evidence of Ms. Greenwood, which he appears to have otherwise accepted, and does not address the fact that the corroborating evidence occurs before Mr. Leal approached the Mazda. As noted by Ms. Tambosso’s counsel, the trial judge has established an artificial conflict in the evidence between Ms. Tambosso and Mr. Leal, where none existed.

 

[47] The trial judge concluded that he could not accept the opinions of Ms. Tambosso’s experts as their opinions were based primarily on her version of events of the 2008 accident, which he found did not happen. He did not consider the evidence of Dr. Lanius or Dr. Rasmussen, whose opinions did not rely solely on her self-reporting, but on the tests that were conducted which included measures of validity (see Loveridge v. British Columbia, 2007 BCCA 425 (CanLII)).

 

[53] In my view, the trial judge failed to analyze and determine, on the whole of the evidence, whether and to what extent Ms. Tambosso suffered damages as a result of the two accidents. Instead, he focussed on the findings of an event, seconds in the making, rather than the big picture in terms of the change in her post-accident condition, the significance of the change, and whether it was caused, wholly or in part, by the accident. In my view, completely discounting the expert evidence based on a questionable finding of fact, and wholly disregarding the evidence of 15 witnesses who supported the opinions of the experts and Ms. Tambosso’s evidence in terms of her post-accident condition, amounts to an overriding and palpable error.

 

[55] However, it is also clear, in my view, that the errors by the trial judge are of such import that the only resolution is a new trial. As such, I do not find it necessary to address the remaining grounds of appeal.

In Saadati v. Moorhead, the Plaintiff was involved in five motor vehicle accidents, which were consolidated into one action. With respect to the second accident, the Plaintiff alleged that he sustained a brain injury, which was rejected by the Court. The Court, however, did award $100,000 to the Plaintiff for psychological injury, despite counsel for the Plaintiff not pleading this in the Notice of Civil Claim, and not arguing for it in closing submissions. The Court based its’ ruling on the testimony of lay witnesses, finding that the Plaintiff was a changed man.

 

ICBC’S lawyer appealed, with the Court of Appeal allowing the appeal, setting aside the decision of the trial judge, and dismissing the action. The Court of Appeal in a unanimous ruling confirmed that in order to succeed in a claim for psychological injury, a Plaintiff must establish a medically recognized psychiatric or psychological illness or condition.

 

The Court of Appeal was critical of the trial judge for deciding the case on an issue not plead or argued by counsel for the Plaintiff, taking the view that the trial judge should have notified counsel that he was intending to make a decision on a claim that was neither plead or argued, and should have given counsel for the Plaintiff the chance to amend the pleadings, and, if such amendments were allowed, then given ICBC’S lawyer the chance to make further submissions.

 

[28]        I do not accept Mr. Saadati’s argument that the above quoted passage brought about a change in the law.  I agree with the decision in Healy, wherein Mr. Justice Sharpe, writing for a five-member panel of the Court of Appeal for Ontario, held that Mustapha did not remove the requirement that a plaintiff prove a recognizable psychiatric (or psychological) condition

 

[32]        In my view, it is apparent from how those expressions are used in the cases cited in para. 41 of Odhavji Estates—Guay v. Sun Publishing Company, [1953] 2 S.C.R. 216 at 238, and Frame v. Smith, [1987] 2 S.C.R. 99 at 127-129—that both connote a medically recognized condition that affects a person’s health or well-being.  Absent expert medical opinion evidence, a judge is not qualified to say what is, or is not, an illness.

 

[36]        It is apparent the trial judge turned his mind to awarding damages on the basis of a psychological injury only after he determined Mr. Saadati had failed to prove the case as advanced by him at trial, namely, that he sustained a brain injury in the second accident.  At this point in his deliberations, the judge should have notified counsel he was prepared to consider a claim that had not been pleaded, given Mr. Saadati an opportunity to apply to amend his pleadings, and, if the amendment were allowed, given the defendants, now appellants, an opportunity to call further evidence and to make further submissions:  see Guastelluccia v. Scott (1978), 20 O.R. (2d) 241 at 244 (C.A.).  I have no doubt that had the defendants been properly notified, they would have, at a minimum, drawn the judge’s attention to the same authorities they have drawn to this Court’s attention.

In Cornish v. Khunkhun, the Plaintiff was injured in an intersection collision when the vehicle being driven by the Defendant turned left in front of her. She brought an ICBC claim for damages for her injuries, which included major depressive and somatic symptom disorder. The Court found that both the Plaintiff and Defendant were responsible for the accident. At trial, which was approximately 4 1/2 years post accident, the Court awarded the Plaintiff $160,000.00 for pain and suffering for the major depressive and somatic symptom disorders that she suffered from.

 

[131] The evidence of Ms. Cornish’s condition was largely uncontradicted. I find that she suffers from a Major Depressive Disorder, as found by Dr. Riley, as well as a Somatic Symptom Disorder which results in her experiencing chronic pain. I also find that she experiences confusion and memory loss which Dr. Riley notes is consistent with her depressive disorder.

 

[132] I also find that Ms. Cornish’s injuries have had a significant impact on her enjoyment of life. Her own evidence, and that of her supporting witnesses, paints a compelling before and after picture of a once vibrant woman who, as Ms. Fraser-Biscoe said, is now a different person.

 

[139] The evidence is clear that Ms. Cornish had previously suffered from symptoms of depression and that she had a pre-existing back injury. With respect to the depression, I am satisfied on the evidence that it was in remission at the time of the accident and that her current psychological condition was caused by the accident.

 

[140] In terms of her pain condition, prior to the accident Ms. Cornish’s back condition caused some limitations with respect to her physical capacity, particularly as it related to her work. She was only able to do light work. However, I accept that the accident aggravated her condition and is the cause of her current chronic pain or Somatic Symptom Disorder.

In Wangert v. Saur, the Plaintiff was the operator of a train which collided with a vehicle, causing the death of the driver of the vehicle. The Plaintiff brought an ICBC claim for damages for post-traumatic stress disorder (PTSD). In an Agreed Statement of Facts, it was agreed by both parties that the Defendant was negligent for the collision, so liability was not in dispute. The Plaintiff witnessed a horrific event which resulted in the Plaintiff being diagnosed with PTSD, which affected his moods and ability to work. The Plaintiff’s symptoms continued for a significant period of time, and were not in full remission until five years after the accident. The Court awarded $50,000.00 to the Plaintiff for PTSD.

 

[28]        I make the following findings of fact:

 

•         the Accident occurred at a most unfortunate time for the plaintiff. He had reached the point in his life where he was able to work increased hours with CP Rail in anticipation of attempting to maximize his income for pension purposes;

 

•         although medical treatment for his post traumatic stress disorder did not formally commence until the spring of 2011, his “self-help” treatment from the Accident until that point in time did result in a decrease of symptoms. This is demonstrated by both Dr. Krywaniuk and Dr. Steinberg concluding that the plaintiff’s condition was in partial remission when they assessed him;

 

[44]        The plaintiff was the operator of a train which struck the defendant’s vehicle at a railway crossing. From the plaintiff’s vantage point, he had a clear view of the immediate events leading up to the collision which resulted in the death of the defendant.

 

[45]        This was a horrific event which resulted in a diagnosis of post traumatic stress disorder. The Accident affected the plaintiff’s moods and his ability to work. His symptoms continued for a significant period of time. They were only in partial remission more than 3 l/2 years after the Accident. It was not until the spring of 2012, almost five years after the Accident, that they were in full remission.

 

In Hardychuk v. Johnstone, the Plaintiff was injured in a motor vehicle accident, and consequently brought an ICBC claim for several heads of damages, including pain and suffering, which included a claim for psychological dysfunction in the form of post-traumatic stress disorder (PTSD), depression, and anxiety. The Court accepted that the Plaintiff suffered from depression, anxiety, and emotional dysfunction, but was not of the belief that there was a substantial connection between such mood disorder symptoms and the injuries related to the accident. The Court, however, did rule that the accident caused the Plaintiff to suffer from PTSD. The Court went on to discuss the legal principles applied by the Courts when assessing claims for psychological injury.

 

1.         The plaintiff must establish that the pain, discomfort or weakness is “real” in the sense that the victim genuinely experiences it.

 

The remaining ten points are drawn from the part of the reasons headed “(b) The Basic Principles” at pp. 134 to 137:

 

2.         The plaintiff must establish that his or her psychological problems have their cause in the defendant’s unlawful act.

 

3.         The plaintiff’s psychological problems do not have their cause in the defendant’s unlawful act if they arise from a desire on the plaintiff’s part for such things as care, sympathy, relaxation or compensation.

 

4.         The plaintiff’s psychological problems do not have their cause in the defendant’s unlawful wrongful act if the plaintiff could be expected to overcome them by his or her own inherent resources, or “will-power”.

 

5.         If psychological problems exist, or continue, because the plaintiff for some reason wishes to have them, or does not wish to end, their existence or continuation must be said to have a subjective, or internal, cause. (NOTE: I consider that this proposition must deal with the conscious mind, otherwise it seems to me to beg the question; see my first observation, later in this Part of these reasons.)

 

6.         If a court could not say whether the plaintiff really desired to be free of the psychological problems, the plaintiff would not have established his or her case on the critical issue of causation.

 

7.         Any question of mitigation, or failure to mitigate, arises only after causation has been established.

 

8.         It is not sufficient to ask whether a psychological condition such as “chronic, benign pain syndrome” is “compensable”.  Such a psychological condition may be compensable or it may not.  The identification of the symptoms as “chronic benign pain syndrome” does not resolve the questions of legal liability or the question of assessment of damages.

 

9.         It is unlikely that medical practitioners can answer, as matters of expert opinion, the ultimate questions on which these cases often turn.

 

10.      Mr. Justice Spencer, at trial in the Maslen case, put the overall test quite correctly in these words:

 

[C]hronic benign pain syndrome will attract damages … where the plaintiff’s condition is caused by the defendant and is not something within her control to prevent.  If it is true of a chronic benign pain syndrome, then it will be true also of other psychologically-caused suffering where the psychological mechanism, whatever it is, is beyond the plaintiff’s power to control and was set in motion by the defendant’s fault.

 

11.      There must be evidence of a “convincing” nature to overcome the improbability that pain will continue, in the absence of objective symptoms, well beyond the recovery period, but the plaintiff’s own evidence, if consistent with the surrounding circumstances, may nevertheless suffice for the purpose.

…

13.     … the general principles which apply in relation to causation in law will apply to psychological injury as they apply to physical injury.

 

In Hussack v. Chilliwack School District No. 33, a young boy sustained a concussion when struck in the head during a field hockey game. The School District was held liable for not adhering to the proper standard of care that they should have exercised. The Plaintiff developed serious psychological and psychiatric injuries as a result of the concussion, and was awarded $1.3 million dollars. The Defendant had argued that the development of such injuries was not foreseeable, however the appeal was denied.

 

[71]           It is not necessary for the plaintiff to show that the precise injury or the full extent of the injury was reasonably foreseeable.  What he must show is that the type or kind of injury was reasonably foreseeable:  Hughes v. Lord Advocate, [1963] UKHL 1; Jolley v. Sutton London Borough Council, [2000] UKHL 31; Ontario (Minister of Highways) v. Côté, 1974 CanLII 31 (SCC), [1976] 1 S.C.R. 595.

 

[72]           The remoteness of damage issue was addressed by the Supreme Court of Canada in Mustapha v. Culligan Canada Ltd., 2008 SCC 27 (CanLII), 2008 SCC 27.  In that case, the plaintiff became ill when he saw a dead fly in an unopened bottle of drinking water supplied by the defendant, Culligan.  He subsequently developed a debilitating psychiatric illness including a major depressive disorder, anxiety, and a phobia about showering.  Cause in fact was found by the trial judge and not appealed.  The issue before the Court was “whether that breach also caused the plaintiff’s damage in law or whether it is too remote to warrant recovery” (para. 11).

 

[73]           Chief Justice McLachlin described the remoteness inquiry as follows:

[12]  The remoteness inquiry asks whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable” (Linden and Feldthusen, [Canadian Tort Law, 8th ed., 2006] at p. 360).  Since The Wagon Mound (No. 1), the principle has been that “it is the foresight of the reasonable man which alone can determine responsibility” (Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., [1961] A.C. 388 (P.C.), at p. 424).

 

[74]           The principle of reasonable foreseeability in relation to psychiatric injury is subject to a qualification:  where the psychiatric injury is consequential to the physical injury for which the defendant is responsible, the defendant is also responsible for the psychiatric injury even if this injury was unforeseeable.  See White v. Chief Constable of South Yorkshire Police, [1999] 2 A.C. 455 at 470, Varga v. John Labbatt, [1956] O.R. 1007, 6 D.L.R. (2d) 336 (H.C.);  Yoshikawa v. Yu 1996 CanLII 3104 (BC CA), (1996) 21 B.C.L.R. (3d) 318, 73 B.C.A.C. (C.A.);  Edwards v. Marsden, 2004 BCSC 590 (CanLII), 2004 BCSC 590;  Samuel v. Levi, 2008 BCSC 1447 (CanLII), 2008 BCSC 1447.

 

[75]           Here, not only was it reasonably foreseeable that a student might be struck on the head or face with a field hockey stick, Mr. MacPhee did foresee that risk, as evidenced by his “no high sticking” rule.  It was also reasonably foreseeable that a student would sustain an injury to his or her head if this occurred.  The trial judge, having found the somatoform disorder was consequential to the post-concussion syndrome, properly concluded based on the evidence and authorities that the respondent had established the appellant’s negligence was the proximate cause of Devon’s injury.

 

In Schulze v Strain, the Court held that, even with the presence of physical injuries, that there can be no claim for “psychological disturbance”, which are injuries that cannot be classified as a recognized psychiatric illness. Examples cited by the court include emotional upset, nightmares, not wanting to travel in a car, and not wanting to talk about the accident.

 

[32]              Having accepted the evidence of Jan’s parents and the evidence of Dr. Ness, I conclude that Jan was extremely frightened by his anticipation of the collision, and then experiencing the collision. Quite naturally, this was fear for his own safety, a fear of being seriously injured. That fear manifested itself in the physical symptoms and the changes in behaviour which I have previously described. Most of his symptoms had subsided within six months. I have found that Jan’s fear of travelling in a motor vehicle had diminished to the point of mere dislike, within about a year of the accident.

 

[33]             The evidence does not establish that Jan’s psychological disturbance amounted to a recognized psychiatric illness. While I am satisfied that Jan’s psychological disturbance was significant and far above being trivial, I am also not persuaded that the degree and duration of his emotional disturbance supports the conclusion that he sustained “a serious and prolonged injury.”

 

[34]           In Kotai v. Queen of the North, Mr. Justice Joyce analysed the law in detail in paragraphs 24 through 77 of his reasons. The conclusions that he expressed at paragraphs 64, 69, and 77, if accepted, would be fatal to Jan’s claim for damages for psychological injury. In the opinion of Joyce J., the law requires a plaintiff who advances a claim for psychological injury in circumstances similar to the present case, to prove that he suffered such serious psychological consequences as a result of the defendant’s negligence that they amounted to a recognized psychiatric illness. Counsel for the plaintiff submitted that I did not have to follow Joyce J’s reasoning and that I could properly conclude that proof of a recognized psychiatric illness was not an essential element of liability in the present case.

 

[35]           I do not accept that submission. Mr. Justice Joyce’s decision was a careful and reasoned decision. He considered numerous authorities in the course of reasoning to his conclusion, and it is not suggested that there were relevant authorities that were not cited to him. Having regard to the long-standing principle established in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, I conclude that I should follow the reasoning of Mr. Justice Joyce in Kotai v. Queen of the North.  In my opinion, the cases relied on by counsel for the plaintiff have been superseded by subsequent authorities.

 

In Scott v Erickson, the Plaintiff was awarded $85,000 for psychological injuries of about a five year duration.

 

[107]      The plaintiff has suffered a persistent psychological reaction to her accident, which has clearly affected her ability to function as she once did in both social and professional settings. She has difficulties with memory and concentration, has difficulty functioning in groups and has suffers from a lack of energy and confidence. She is, in important respects, no longer the person she was and is unable to enjoy most aspects of life as she previously did. However, I have found that she does not have any organic brain injury and her condition is more likely than not to be treatable with the proper interventions.

 

[108]      Although I did not find the plaintiff to have mild traumatic brain injury or post-traumatic stress disorder, the impact that her psychological condition has had on her life is in many ways similar to what is seen in cases involving those conditions. Those cases therefore can provide some useful guidance in assessing damages.

 

[109]      In Chowdhry v. Burnaby (City of), 2008 BCSC 1337 (CanLII), 2008 BCSC 1337, the plaintiff was found to be suffering from post-traumatic stress disorder and depression that would likely be permanent, although with some improvement in the future. He also suffered a traumatic brain injury that was no longer a direct cause of cognitive problems. Non-pecuniary damages were assessed at $200,000.

 

[110]      In Clark v. Hebb, 2007 BCSC 883 (CanLII), 2007 BCSC 883, the plaintiff had soft tissues injuries and a mild traumatic brain injury that lasted for two years, headaches and dizziness that persisted for a longer period, and a jaw injury that still required treatment at the time of trial. The Court awarded non-pecuniary damages of $75,000.

 

[111]      In Joel v. Paivarinta, 2005 BCSC 73 (CanLII), 2005 BCSC 73, the plaintiff was found to have suffered a “very mild” traumatic brain injury and to have psychological difficulties that were caused or aggravated by the accident. Non-pecuniary damages were assessed at $110,000.

 

[112]      I have considered those and other cases referred to, but of course each case must be decided on its own facts and on the need to compensate that plaintiff for pain, suffering, and loss of enjoyment of life. The accident in this case has had psychological consequences that have, to date, significantly interfered with the plaintiff’s enjoyment of life, her ability to function in both social and occupational settings, and her general sense of self worth. On the other hand, the plaintiff’s physical pain and suffering were short-lived, she has failed to prove that she suffered an organic brain injury, and the condition she has proved is one from which she is likely to fully recover with proper treatment. Taking all of those factors into account, I find $85,000 to be an appropriate award for non-pecuniary damages.

 

In Bonham v Weir, the Plaintiff’s truck was hit head on by the Defendant’s vehicle. The Plaintiff managed to escape through a broken window, moments before his truck burst into flames. By the time of trial, two years after the accident, the Plaintiff was still suffering from moderate to severe post-traumatic stress disorder (PTSD). In awarding $75,000 for pain and suffering, the Court commented:

 

[24]           The psychiatric evidence indicates that although PTSD is generally treatable, it is not easy to predict the course of a single case. Response to treatment is highly individualized and may depend on a variety of factors, including the existence of other stresses in the patient’s life. On all the evidence in this case, I find Dr. Lu’s cautious prognosis to be the more realistic one. Although it is possible that the plaintiff will enjoy the full recovery predicted by Dr. Solomons, I think it is more likely that he will have some improvement with continued treatment but will not become completely symptom-free.

 

[25]             Mr. Bonham was involved in a horrific collision which could easily have been fatal for him, as it was for the other driver. Although his minor physical injuries healed quickly, he suffered and continues to suffer from post traumatic stress disorder. There is no doubt that his psychological complaints are genuine and that this condition has a very real and severe impact on his life. His personality has changed. He no longer interacts with family and friends as he used to. He has lost confidence in his abilities and lost interest in most of the things he formerly enjoyed. The psychological symptoms persist more than two years after the collision. Although the plaintiff can expect some improvement in his condition, some symptoms are likely to remain indefinitely.

 

[26]             Non-pecuniary damages must be assessed according to the impact of the injuries on the individual plaintiff. Decisions of the court in other cases are never completely comparable and provide no more than general guidance. However, recent decisions of this court that I have found particularly helpful in identifying a range of damages applicable to this care are:  Leung v. Foo, 2009 BCSC 747; Carpenter v. Whistler Air Services, 2004 BCSC 1510; and Latuszek v. Bell Air Taxi, 2009 BCSC 798.

 

[27]           Taking into account the differences and similarities between those cases and this one and, most importantly, the evidence of the impact of this plaintiff’s injuries on his life, I find $75,000 to be an appropriate award for non-pecuniary damages.