Mizzi v. Hopkins et al. [Indexed as: Mizzi v. Hopkins]

64 O.R. (3d) 365

[2003] O.J. No. 1671

Docket No. C37587

Court of Appeal for Ontario

Borins, Cronk and Armstrong JJ.A.

May 7, 2003

Damages -- Personal injuries -- Causation -- Contributory causation -- Material contribution test -- Plaintiff alleging significant neurological, psychological and physical injuries caused by motor vehicle accident -- Defendant alleging that plaintiff's condition pre-existing the accident -- Trial judge's direction to jury about contributory causation inadequate but no substantial wrong or miscarriage of justice.

Velda Mizzi was injured in a motor vehicle accident. She sued for damages for personal injuries. Liability was admitted, and a jury assessed her damages. At trial, she claimed that she had suffered significant neurological, psychological and physical injuries. The defendants denied that she had suffered any brain injury and submitted that her post-accident complaints and any inability to return to work were caused by conditions that existed before the accident. In the alternative, they argued that the accident may have caused an increase in the effects of her pre-accident condition but that her condition had returned to its pre-accident level. The jury awarded the plaintiff $30,000 for general damages and $48,000 for lost income for two years and nothing for future loss of income. She appealed on the basis that the trial judge failed to adequately instruct the jury on the legal principles concerning contributory causation for damages.

Held, the appeal should be dismissed.

While the trial judge erred in his instruction on contributory causation, the instruction occasioned no substantial wrong or miscarriage of justice given the evidence and the nature of the jury's verdict.

In some cases, it is impossible to attribute a single cause for injuries and the traditional test for causation, the "but- for" test, is unworkable in some situations. In those cases, of which the immediate case was an example, the traditional test is replaced by the "material contribution" test, which is concerned with whether the defendants' negligence "materially contributed" to the occurrence of the plaintiff's injuries. Unfortunately, the trial judge, in his instructions to the jury about contributory causation, did not refer to: the post- accident condition; a potential cumulative effect from the injuries she sustained in the motor vehicle accident and her pre-accident condition; or the requirement that the defendants be held liable for the plaintiff's full loss if the jury concluded that her overall post-accident condition resulted from such a cumulative effect. The trial judge did not invite the jury to consider and determine the pre-accident condition and compare it to the post-accident condition.

The trial judge failed to provide adequate instruction on contributory causation. However, the verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the court that no jury, reviewing the evidence as a whole and acting judicially, could have reached it. Here, the jury's verdict was not unreasonable and it was firmly grounded in the evidence. Further, the inadequate instruction on contributory causation occasioned no substantial wrong or miscarriage of justice. The jury's award of general damages indicated that it found that the accident materially contributed to the appellant's post- accident condition. Having [page366] established causation, it was the plaintiff's burden to prove the nature, extent, and duration of the post-accident condition that she claimed resulted from the accident or alternatively, from the combined effect of the accident and her pre-accident condition. It was open to the jury, having found that the accident materially contributed to the appellant's loss, to accept the defence theory and conclude, on the whole of the evidence, that the plaintiff had sustained only a moderately severe injury, the overall effects of which had been resolved within a few years.

APPEAL from an award of damages in an action for damages for personal injuries.

Cases referred to Alderson v. Callaghan (1998), 1998 895 (ON CA), 40 O.R. (3d) 136, 42 C.C.L.T. (2d) 230, 21 C.P.C. (4th) 224 (C.A.); Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235, 203 N.R. 36, [1997] 1 W.W.R. 97, 31 C.C.L.T. (2d) 113; Housen v. Nikolaisen, 2002 SCC 33, (2002), 219 Sask. R. 1, 211 D.L.R. (4th) 577, 286 N.R. 1, 272 W.A.C. 1, [2002] 7 W.W.R. 1, 30 M.P.L.R. (3d) 1, 10 C.C.L.T. (3d) 157; Koukounakis v. Stainrod (1995), 1995 621 (ON CA), 23 O.R. (3d) 299, 12 M.V.R. (3d) 78 (C.A.); McCannell v. McLean, 1937 1 (SCC), [1937] S.C.R. 341, [1937] 2 D.L.R. 639; R. v. Toms, [2003] O.J. No. 952 (Quicklaw) (C.A.); Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311, 107 N.B.R. (2d) 94, 72 D.L.R. (4th) 289, 110 N.R. 200, 267 A.P.R. 94, 4 C.C.L.T. (2d) 229; Vancouver-Fraser Park District v. Olmstead, 1974 196 (SCC), [1975] 2 S.C.R. 831, 51 D.L.R. (3d) 416; Walker Estate v. York-Finch General Hospital, 2001 SCC 23, [2001] 1 S.C.R. 647, 198 D.L.R. (4th) 193, 268 N.R. 68, 6 C.C.L.T. (3d) 1, 5 C.P.C. (5th) 1; Woelk v. Halvorson, 1980 17 (SCC), [1980] 2 S.C.R. 430, 114 D.L.R. (3d) 385, 33 N.R. 232, [1981] 1 W.W.R. 289, 14 C.C.L.T. 181

James Virtue, for appellant. Earl A. Cherniak, for respondents.

The judgment of the court was delivered by

CRONK J.A.: --

A. Introduction

[1] This appeal concerns the adequacy of a trial judge's jury instruction on contributory causation for damages in a civil action arising from a motor vehicle accident. If the instruction was inadequate, a second issue also arises, namely, the consequences of the instruction, given the evidentiary record and the nature of the jury's verdict in this case.

[2] The appellant, Velda Mizzi, was injured in a motor vehicle accident on April 13, 1997, when her vehicle was struck from behind by the respondents' vehicle, causing the appellant to strike her head on her car interior. She sustained a cut to her scalp. She did not lose consciousness. She was taken to a hospital to receive stitches for her scalp injury. In the ambulance en route to the hospital, her level of consciousness was tested. Her test score was then only slightly below normal. Subsequently, she [page367] achieved perfect scores at the hospital on identical repeat tests. She was released from the hospital after approximately two hours, with medication for pain and advice on how to deal with head injuries and any symptoms of post-concussive syndrome. [See Note 1 at end of document]

[3] The appellant was 41 years of age at the time of the accident. Prior to the accident she was self-employed as a freelance hair and makeup artist in the advertising and film production industries. She claimed at trial that she suffered significant neurological, psychological and physical injuries as a result of the accident, including depression, unreliable short-term and long-term memory, constant headaches, decreased organizational and concentration capacities, unsteadiness and neck and back pain, which prevented her from resuming her pre- accident employment. In support of that claim, she relied on extensive medical evidence and the testimony of several non- expert witnesses who observed changes in her health, behaviour and personality following the accident. At trial, liability was admitted. A jury trial took place in November 2001 solely on the issue of damages.

[4] The defence advanced two theories at trial. First, the respondents claimed that the appellant did not suffer a brain injury in the accident at all, and that her post-accident complaints, and any ongoing inability to return to work, were caused by conditions which existed, or incidents which occurred, prior to the accident. In the alternative, they asserted that the appellant sustained only a mild head injury in the accident, and that although the accident may have caused a temporary or transient increase in the effects of the appellant's pre-accident condition, they had returned to pre- accident levels well before the trial. The defence relied on Ms. Mizzi's own testimony, that of the medical witnesses called on her behalf, a medical report by a neurologist, and the testimony of a psychiatrist who was called as a witness at trial on behalf of the respondents.

[5] The jury awarded the appellant $30,000 for general damages and $48,000 for lost income in 1997 to 1999, but nothing in damages for lost income in 2000 and 2001 or for future loss of income. On December 27, 2001, Coo J. awarded the appellant judgment for damages, net of applicable deductibles, in accordance with the jury's verdict. The appellant appeals on the basis that the trial judge failed to adequately instruct the jury on the legal principles enunciated by the Supreme Court of Canada in [page368] Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235 concerning contributory causation for damages.

[6] I have concluded that although the trial judge erred in his instruction on contributory causation, the instruction occasioned no substantial wrong or miscarriage of justice given the evidence in this case and the nature of the jury's verdict. Accordingly, I would dismiss the appeal.

B. Issues and Positions of the Parties

[7] The appellant argues that the trial judge erred by failing to instruct the jury that she was entitled in law to full compensation from the respondents for her overall condition following the accident if the jury was satisfied that her condition was the cumulative result of both her pre- existing condition and the accident, and that the accident materially contributed to her overall post-accident condition. The appellant further submits, in that context, that the trial judge erred by failing to instruct the jury that a "material contribution" is a contribution which is not "de minimis".

[8] The respondents assert that the trial judge's jury instruction on contributory causation properly outlined the applicable legal principles established in Athey v. Leonati. They also submit, if the instruction suffered from any deficiency in that regard, that it raises no reasonable possibility of a substantial miscarriage of justice, thereby precluding appellate interference with the jury's verdict.

[9] The respondents also maintain that because the jury's assessment of damages is supported by the evidence, there is no basis upon which to interfere with it. They argue that the appellant's medical records reveal a pre-accident history of serious health problems, and that the appellant's claims concerning her post-accident injuries are not credible. Alternatively, they submit that, although the appellant suffered some temporary and minor soft-tissue injuries as a result of the accident, those injuries resolved by about 1999 and, either unconsciously or consciously, she exaggerated her injuries. It is their position that the jury, by its award of general damages and special damages only up to 1999, accepted the defence position that the appellant had sustained only a moderately severe injury in the accident, the effects of which resolved within a few years.

C. Additional Facts

(1) The medical evidence

[10] The medical evidence at trial, consisting of various medical reports filed on consent as exhibits and the oral testimony of [page369] four physicians, established that the appellant's pre-accident medical history included:

(i) a broken ankle, which ultimately required surgery, and back pain occasioned by a motor vehicle accident in November 1989;

(ii) at least two head injuries prior to the accident, resulting from a slip and fall on ice in December 1995, and a physical assault in January or February 1996, when the appellant was rendered unconscious by a kick to her head;

(iii) counselling on various occasions during the period November 1989 to May 1996, for: emotional stress arising from a pregnancy and abortion (November 1989); use of alcohol and drugs (November 1989); insomnia, nervousness and stress (February 1990); tension headache that the appellant feared was caused by a brain tumour (April 1991); stress related to a second pregnancy and abortion (October 1991); situational (short-term) anxiety related to the termination of her relationship with her boyfriend (January 1993); and depression and anxiety arising from the assault which she suffered (May 1996); and

(iv) in May 1996, a diagnosis by a consulting physician of depression and suspected chemical imbalance.

[11] The appellant's family physician, Dr. Kenneth Chen, saw the appellant eight days after the accident. He diagnosed soft tissue injuries to the appellant's neck and upper back, a laceration of her scalp, headache, confusion, fatigue and post- traumatic concussion. He arranged for a brain scan in late April 1997, and also referred the appellant to Dr. P.G. Urback, a specialist in internal medicine. The brain scan results showed no evidence of brain damage. Dr. Urback concluded that the appellant was likely suffering from a post-concussive syndrome. He was unable to identify "any objective evidence of central nervous system damage", and felt that the appellant had "a pretty good prognosis" but that she required an urgent neurological consultation. The consulting neurologist subsequently reported that although the appellant may have sustained a concussion, she did not suffer any residual neurological effects from the accident.

[12] Dr. Chen continued to treat the appellant after the accident, until trial. At various times he noted that she suffered from depression, headache, decreased memory, unsteadiness, soft tissue pain of the neck and back and, on some occasions, symptoms of paranoia. His initial diagnosis of post-traumatic concussion [page370] remained unchanged. In his view, the appellant's condition had improved by 1999, although she continued to experience lower back pain and decreased memory, social skills, conversational abilities, attention, concentration and ability to plan or organize. She walked with a cane, although its use had not been prescribed. He was unable to say when the appellant would fully recover.

[13] In the years 1997 to 2000, the appellant was seen by a plethora of medical specialists, sometimes for treatment and other times for the assessment or evaluation of her condition. Several of those experts gave evidence at trial. The reports of others were filed as exhibits. In my view, for the purpose of this appeal, it is necessary to detail only certain key opinion evidence including, in particular, the testimony of Dr. Chanth Seyone, on behalf of the appellant, and Dr. Lawrence Reznek, on behalf of the respondents. In summary, their evidence was conflicting and depicted significantly different pictures of the appellant's post-accident condition. Indeed, their evidence reflected what the trial judge described as the "extremes in this case". As he observed, this was not a narrow case on damages, in which the positions and evidence of the parties were only marginally different.

[14] The report of Dr. Jeffrey Price, a psychologist, was filed at trial on behalf of the appellant. Dr. Price saw the appellant in March 1998, almost one year after the accident, for an assessment of her psychological functioning. He reported that she was experiencing major depression, generalized anxiety disorder, and chronic pain disorder as a consequence of the accident. In his opinion, the appellant had "substantial predisposing and underlying psychological conditions" which had been exacerbated by the trauma of the accident. He did not suggest that the appellant had sustained a brain injury in the accident. He expressed the view that the appellant's cognitive functioning likely would improve as her psychological and emotional distress receded.

[15] Dr. Chanth Seyone is both a psychiatrist and a neuropsychiatrist, [See Note 2 at end of document] and the director of a brain injury clinic at a major Toronto teaching hospital. He saw the appellant six times between June 2000 and October 2001. He testified that the appellant was "one of [his] more difficult challenges", in the sense that, when he initially saw her, she was very disorganized. It was "almost impossible to get a coherent history from her", and there was no logical co-ordination between her thoughts. [page371]

[16] Dr. Seyone conducted a neuropsychiatric assessment of the appellant. He described her as being "almost psychotic" in a number of ways, and her thought content as being delusional. He initially made several differential diagnoses, but ultimately concluded that the appellant had a bipolar affective disorder, that is, a manic-depressive illness characterized by excessive highs and lows in mood. In Dr. Seyone's view, although that diagnosis need not depend on the presence of a brain injury, the appellant's condition "possibly" involved a "minimal" brain injury sustained at the time of the accident. Dr. Seyone indicated that loss of consciousness is not a precondition to a mild brain injury, and that such an injury could have occurred although testing of the appellant revealed no objective evidence of a brain injury.

[17] In Dr. Seyone's opinion, the appellant's symptoms were temporally related to the accident, which triggered the appellant's "complete decompensation" to the point "[w]]here she was presenting . . . as somebody who basically couldn't even maintain regular activity of daily living, far less kind of go to work and earn a living and pay rent and everything else that she was doing before".

[18] By June or July 2000, however, it was Dr. Seyone's opinion that the appellant had improved and "a lot of things [had] settled down to a large extent, and she's actually better now than she was then". By the end of November 2000, her improvement had further progressed; however, she was still delusional and Dr. Seyone prescribed anti-psychotic medications.

[19] Dr. Peter Stenn, a psychiatrist and a psychologist, also testified for the appellant at trial. He treated her for depression, following a referral by Dr. Chen. He saw the appellant approximately 20 times from September 1997 to September 1999. He diagnosed her as suffering from depression and "possibly" a post-concussive syndrome. According to Dr. Stenn, some patients recover "fairly quickly" from the syndrome. In other patients, the syndrome persists for a "fairly long time". He did not arrive at a prognosis for the appellant. Moreover, given the correlation in time between the date of the accident and the appellant's condition when he first saw her, he simply assumed that her condition was causally related to the accident.

[20] The report of Dr. Adrien Upton, a neurologist, was filed at trial on behalf of the respondents. Dr. Upton saw the appellant in August 1999. He reported that the appellant had a long history of depression, anxiety and other trauma prior to the 1997 motor vehicle accident. In his view, the appellant had no organic neurological abnormality or evidence of any residual effect of a head [page372] injury. He expressed the opinion that the appellant's problems were psychological or psychiatric in origin, and "at most she had a very mild concussion". He suggested that treatment of the appellant's "long-standing personality, psychological or psychiatric problems will be difficult in view of [her] pre-accident pattern of problems".

[21] Strong reliance was placed by the defence on the trial testimony of Dr. Reznek, a psychiatrist who assessed the appellant on behalf of the respondents for two hours on one occasion in May 2000. He testified that while he could not wholly exclude the possibility that the appellant suffered a mild traumatic head injury in the accident, if there was a head injury it was "very, very mild". He based that opinion on the symptoms exhibited by the appellant in the hospital emergency department immediately after the accident and on his own testing and observations of her. In particular, in his view, the emergency department records indicated that the appellant was then fully conscious and orientated, her brain was functioning normally, there was no evidence of a significant period of post-traumatic amnesia or depressed consciousness, and testing generated no evidence of organic brain injury (that is, objectively detectable brain damage). Dr. Reznek's own testing and observations of the appellant indicated no evidence of depression, anxiety, a manic illness, psychotic symptoms, cognitive deficits (including deficits in short-term memory, concentration or verbal comprehension), or symptoms of post- traumatic stress disorder.

[22] On cross-examination, Dr. Reznek acknowledged that the appellant's description of her gaps in memory immediately following the accident was consistent with symptoms of post- traumatic amnesia. He also confirmed that the appellant had a "fairly fragile personality structure" before the accident, which caused her to be easily stressed by events, in turn leading to anxiety and depression in reaction to the stress. In his view, the appellant's behaviour after the accident did not suggest malingering but, rather, a genuine -- and for her -- a usual reaction to stress.

[23] In May 2000, the appellant was referred to a rehabilitation hospital for treatment, where she was seen by a team of specialists. The reviewing psychiatrist concluded that the appellant's presentation had a "significant psychological overlay", she suffered "at the most a mild to moderate concussion", and had no focal neurological findings. A brain MRI test was recommended to verify any brain injury, but it does not appear to have been performed at that time. [page373]

(2) The appellant's pre-accident work history

[24] The appellant's evidence at trial established that her work on hair and makeup was excellent, she was an integral part of the creative team on various photography shoots, and she participated prior to the accident in several high profile photography shoots involving celebrities or other noted public figures. The appellant claimed that, before the accident, she loved her work and was employed on a steady basis.

[25] Various tax records and accounting summaries were admitted at trial as exhibits. Those records indicate that the appellant's declared gross income for the years 1994, 1995, and 1996 was $14,200, $8,312 and $18,000, respectively. Her net income before taxes for the same years was $7,190, $3,810, and $14,023, yielding an average net income prior to the accident of approximately $8,340 per year. The appellant did not file tax returns in 1992 and 1993.

D. Analysis

(1) The governing principles concerning contributory causation

[26] In Athey v. Leonati, the plaintiff was injured in two successive motor vehicle accidents. Thereafter, while he was recovering from those injuries, he experienced a disc herniation while exercising. The trial judge found that the herniation was caused by the combined effect of the injuries that the plaintiff sustained in the accidents and his pre- existing back problems. She apportioned the plaintiff's loss between the tortious (the accidents) and non-tortious (the pre- existing back problems) causes, and awarded the plaintiff damages of 25 per cent of his full loss.

[27] Although the plaintiff's appeal to the British Columbia Court of Appeal was dismissed, his further appeal to the Supreme Court of Canada was successful. In my view, the judgment of the Supreme Court makes clear that the legal principles concerning contributory causation flow from at least two foundational tort law rules. First, a defendant is liable in tort for all injuries caused or contributed to by his or her negligence. Second, as described by Major J. on behalf of the court (at p. 472 S.C.R., p. 243 D.L.R.):

[T]he plaintiff must be placed in the position he or she would have been in absent the defendant's negligence (the "original position"). However, the plaintiff is not to be placed in a position better than his or her original one. It is therefore necessary not only to determine the plaintiff's position after the tort but also to assess what the "original position" would have been. It is the difference between these positions, the "original position" and the "injured position", which is the plaintiff's loss.

(Emphasis in original) [page374]

[28] In addition, as relevant to this case, the following causation principles were identified by the court:

(i) the defendant's liability is not reduced by the presence of non-tortious contributing causes to the plaintiff's loss, if the defendant's conduct is found to be a cause of the loss. Liability is established if the defendant's conduct is part of the cause of a plaintiff's injury. The plaintiff is not required to establish that the defendant's negligence was the sole cause of the injury;

t(ii) however, to ground liability, the defendant's negligent conduct must have "materially contributed" to the occurrence of the plaintiff's injury. As indicated by Major J., at p. 466 S.C.R., p. 239 D.L.R.: "A contributing factor is material if it falls outside the de minimis range";

(iii) separation between injuries and, hence, division of liability among joint tortfeasors or assignment of liability to one tortfeasor for less than 100 per cent of the plaintiff's injuries is permissible where some of the plaintiff's injuries have tortious causes and some do not. That division or assignment, however, is not possible or appropriate where the plaintiff's loss and its consequences, in reality, are one injury;

(iv) a tortfeasor is liable for the plaintiff's injuries even if the injuries are unexpectedly severe owing to a pre- existing condition (the so-called "thin skull" rule); and

(v) some limitations apply to curtail the extent of a defendant's liability under the "thin skull" rule. A defendant will not be liable for any debilitating effects of a plaintiff's pre-existing condition if the plaintiff would have experienced those effects anyway, that is, without the occurrence of the defendant's negligent conduct. As observed by Major J., at p. 473 S.C.R., p. 244 D.L.R.: "The defendant is liable for the additional damage but not the pre-existing damage" (the so-called "crumbling skull" rule).

[29] Major J. also addressed the ramifications, in the Athey v. Leonati case, of the principles which he had outlined (at pp. 475-76 S.C.R., pp. 245-46 D.L.R.):

1. If the disc herniation would likely have occurred at the same time, without the injuries sustained in the accident, then causation is not proven.

2. If it was necessary to have both the accidents and the pre-existing back condition for the herniation to occur, then causation is proven, [page375] since the herniation would not have occurred but for the accidents. Even if the accidents played a minor role, the defendant would be fully liable because the accidents were still a necessary contributing cause.

3. If the accidents alone could have been a sufficient cause, and the pre-existing back condition alone could have been a sufficient cause, then it is unclear which was the cause-in-fact of the disc herniation. The trial judge must determine, on a balance of probabilities, whether the defendant's negligence materially contributed to the injury.

(Emphasis in original)

[30] Athey v. Leonati confirms that once it is proven that a defendant's negligence was a cause of the plaintiff's injury, whether demonstrated directly or by inference of a causal connection, a damages award should not be reduced to recognize the contribution of non-tortious causes to the plaintiff's loss. In establishing that principle, the Supreme Court restated, and affirmed, many basic tort law principles and the earlier judgment of that court in Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289.

[31] The principles enunciated in Athey v. Leonati may be applied with relative ease when a plaintiff's injuries are discreet, and clearly attributable to one or more independent tortious or non-tortious occurrences. Often, however, a plaintiff's injuries are not susceptible to such ready or clear-cut division. Rather, as noted by Major J. in Athey v. Leonati at p. 467 S.C.R., p. 239 D.L.R., a plaintiff's injuries may emanate from "a myriad of other background events [or conditions] which were necessary preconditions" to the occurrence of the injuries in question. In such cases, it is frequently impossible to attribute a single cause to the plaintiff's injuries. For that reason, the Supreme Court has recognized that the traditional test for causation, the "but- for" test, is unworkable in some situations and, in those cases, should be replaced by the "material contribution" test, which is concerned with whether the defendant's negligence "materially contributed" to the occurrence of the plaintiff's injuries: Athey v. Leonati at p. 466 S.C.R., p. 239 D.L.R. and Walker Estate v. York-Finch General Hospital, 2001 SCC 23, [2001] 1 S.C.R. 647, 198 D.L.R. (4th) 193, at pp. 679-80 S.C.R., per Major J. This case falls within the latter category of cases.

[32] How, then, is a trial judge properly to instruct a jury on contributory causation for damages? That question was expressly considered by this court in Alderson v. Callaghan (1998), 1998 895 (ON CA), 40 O.R. (3d) 136, 21 C.P.C. (4th) 224 (C.A.), a case relied upon by the appellant. The facts in Alderson are similar in some, although not all, respects to the facts of this case. [page376]

[33] The plaintiff in Alderson claimed to have suffered serious brain damage in a motor vehicle accident. The defendant admitted liability, but asserted that the plaintiff sustained only a mild concussion in the accident, and that her brain damage and personality changes were caused by her pre-accident psychological and emotional conditions and several post- accident assaults. The plaintiff appealed from the jury's verdict awarding damages on the basis that the trial judge had misdirected the jury on contributory causation, a submission which was accepted by this court. In allowing the plaintiff's appeal, Moldaver J.A. stated at p. 139 O.R.:

In light of Athey, supra, the jury should have been told that if Alderson's overall condition resulted from the cumulative effect of the injuries sustained in the August 10 accident, the multiple beatings inflicted upon her thereafter, and her pre-existing psychological condition, she would nonetheless be entitled to full compensation so long as the jury was satisfied, on a balance of probabilities, that the injuries sustained in the August 10 accident materially contributed to her overall condition. The jury should then have been told that if they were not so satisfied, they should assess the plaintiff's damages based upon the nature and extent of her injuries, which, in their opinion, were directly attributable to the motor vehicle accident.

(2) The content of the instruction in this case

[34] During the course of the trial, the trial judge invited submissions from counsel concerning his jury charge. Counsel for the respondents (not counsel on this appeal) made no submissions. However, the following exchange took place between the trial judge and the appellant's trial counsel:

THE COURT: Is there anything we could do now about what ought to be in the charge . . .

MR. FURSMAN: I can at least begin on that if Your Honour wishes me to, or if Your Honour would prefer that we both do [it] at the same time.

THE COURT: I've been given two cases --

MR. FURSMAN: Yes, that's right [sic]. And Alderson and Callaghan. And from Athey and Leonati, I would ask you to consider instructing the jury with regard to the "thin skull" doctrine at page 243 of the report, and from Alderson and Callaghan, a case not at all dissimilar to this one, the Court of Appeal indicated that the question that should be put to the jury is whether the motor vehicle accident had a -- let me see if I can find the exact words . . . whether the motor vehicle accident materially contributed to the plaintiff's overall condition, which is at page 139 of the decision in Alderson and Callaghan. [page377]

There may be some other minor points, but those are the two major issues that I'm going to be asking you to address in your charge.

THE COURT: All right, so the thin skull and don't just leave it to the jury that -- may have had some external or contributing effect but did the -- Obviously, I'm not going to ignore the fact that the plaintiff's got to prove her case.

MR. FURSMAN: Yes.

THE COURT: I don't think Justice Moldaver was intending to say otherwise. The plaintiff has said"I have all these problems, and I do [sic] react." So she's got to prove it, even if there were no possible alternative cause in a mix of information, the jury could say"We don't believe it."

But I understand your point.

[35] In his jury charge, the trial judge instructed the jury on the applicable legal principles concerning the assessment of credibility and the weighing of evidence. He then reviewed the medical evidence, the appellant's own testimony, and the evidence of the non-expert witnesses concerning the appellant's health, behaviour and personality after the accident. As part of that review, the trial judge provided the jury with a summary of the evidence of Drs. Seyone and Reznek. He then instructed the jury as follows:

So what do you do with all that? Well, first you've got to decide what the facts were, what happened, what injuries were suffered by the plaintiff and what symptoms developed and how long have they lasted or did they last if some or all of them disappeared.

It must be borne in mind that if the plaintiff was a vulnerable person, one with a kind of disposition or personality that exposed her to more dramatic bad results from a minor injury than would show in the case of a tougher or more stoic person, that does not mean that the plaintiff is not entitled to damages for what she in fact suffered. The defence is not entitled to take advantage of the fact that she was or is that sort of more delicate person, if that is the conclusion to which you come. And if that is the conclusion to which you come, the defendant is liable for the plaintiff's injuries, even if they turned out to be unexpectedly severe as a result of her pre-existing condition, assuming that the plaintiff establishes that the motor vehicle accident materially contributed to those injuries.

[36] Thereafter, the trial judge outlined for the jury the positions of the parties regarding the cause of the appellant's injuries. In that connection, he stated in part:

As I understand it, the defence position is that they did not so contribute. The defence position is that the accident neither started nor worsened any of the psychological, psychiatric or emotional problems of which Ms. Mizzi complains and thus did not materially contribute to any of them, except perhaps, although this is not conceded, with regard to some of them for a brief time. [page378]

Plaintiff's counsel has made detailed arguments to you about all this, including that you should find that the plaintiff had and has all the problems of which she spoke. He puts it to you that all this was caused, alternatively, by:

-- a brain injury severe enough to cause all of these problems in a person previously without any of these symptoms, save, for some, on rare and temporary occasions in the past; or

-- a perhaps very mild brain injury, perhaps without any of the ordinary signs of one that might be revealed by testing of any sort, but one that gave mild real symptoms for a while which the plaintiff, not intentionally, but simply as a result of being the sort of person she is, converted into ongoing symptoms which she thinks are there and are the result of the car accident, superimposed on a fragile personality of the sort described by Dr. Reznek. That is a legitimate way to make the claim, assuming, of course, that you accept that is what happened; and alternatively

-- perhaps no real brain injury at all in a person who was peculiarly vulnerable to such an event and that led, without any exaggeration on the part of the plaintiff, to her being struck with at least some of what she has told you about and which had an affect [sic] on the plaintiff's ability to function and work. That, too, would be a legitimate claim, if you find that is what happened.

[37] Later in his charge, when directing the jury on general damages, the trial judge said:

The idea of general damages is to compensate the claimant in money for whatever injuries she proves she has suffered. The purpose of general damages is to put the injured party, as far as money can do, in the same position as she would have been in had there been no injury. . . .

Take into account what the claimant has established on the balance of probabilities to be the basic nature of the injuries suffered, the pain and suffering, both emotional and physical, experienced up to the present time, and take into account what there will probably be in the future, and take into account with respect to any injuries which you conclude have been proven on the balance of probabilities to have been suffered, such pain and suffering and loss of amenities of life as to which there is a real possibility for the future -- the same phraseology as with respect to future income: a real possibility for the future, discounting that aspect of damages on the basis of your view as to the extent of that likelihood or real possibility.

Take into account on the same basis disability suffered in consequence of the injuries.

Take into account again on the same basis the impact on this plaintiff's life up to now and to the future of loss of general amenities of life, the things she was able to do, liked to do, enjoyed doing, and has not been able to do because of the injuries suffered in the accident.

(Emphasis added)

(3) The adequacy of the challenged instruction

[38] In his instruction on contributory causation, the trial judge correctly described the "thin skull" rule, as he had been [page379] requested to do by the appellant's trial counsel. The appellant does not challenge that aspect of the instruction. The trial judge also directed the jury as to the consequences of the "thin skull" rule if the jury concluded that the respondents' negligent conduct "materially contributed" to the appellant's injuries. Although the appellant complains on this appeal that the trial judge did not go on to tell the jury that a "material" contribution is one which falls outside the de minimis range, that deficiency, in my view, is not significant in this case. The ordinary meaning and usage of "material" connotes something in excess of trivial or minor. I think it is most unlikely that the jury would have been confused by the failure to explain "materiality" in the context of the trial judge's causation instruction.

[39] Subsequently, in his direction on general damages, the trial judge also properly and clearly set out the basic compensatory purpose of tort law, that is, to put the injured party, as far as can be accomplished with money, in the same position as he or she would have been but for the negligent conduct of the tortfeasor.

[40] Unfortunately, however, the trial judge did not refer anywhere in his instruction on contributory causation, or in his direction on general damages, to the appellant's overall post-accident condition. Similarly, he did not refer to a potential cumulative effect from the injuries she sustained in the motor vehicle accident and her pre-accident condition, or to the requirement that the respondents be held liable for the appellant's full loss if the jury concluded that her overall post-accident condition resulted from such a cumulative effect. In those important aspects, the trial judge's causation instruction did not conform with this court's decision in Alderson v. Callaghan and, in my view, did not contain the complete requirements of an Athey v. Leonati instruction. It is important to recall in that regard, that the appellant's trial counsel specifically requested that the jury charge include the direction provided in Alderson v. Callaghan, and provided a copy of that decision to the court for that purpose.

[41] Instead, the trial judge commenced his causation instruction by directing the jury that it should first determine the facts concerning "what injuries were suffered by the plaintiff and what symptoms developed" and their duration. While that instruction is unobjectionable, the trial judge did not invite the jury to also consider and determine the appellant's original position -- her pre-accident condition -- and to compare that original position to the facts of her post-accident condition as the jury found them. Moreover, and importantly, at no point in his causation instruction or in his subsequent direction on general damages, did the [page380] trial judge explain what he meant by his references to the appellant's "injuries". It is useful to repeat the following words of the trial judge:

And if that is the conclusion to which you come, the defendant is liable for the plaintiff's injuries, even if they turned out to be unexpectedly severe as a result of her pre-existing condition, assuming that the plaintiff establishes that the motor vehicle accident materially contributed to those injuries.

(Emphasis added)

The trial judge thus linked the requirement of material contribution to the appellant's "injuries" rather than to her "overall condition".

[42] The respondents argue that the phrase "the motor vehicle accident materially contributed to those injuries", must be read as referring to the full panoply of injuries claimed by the appellant because the accident could only "contribute" to something more than the injuries sustained in the accident. In my view, while there is considerable force to that argument, in the absence of an explanation as to what "injuries" meant, the causation instruction lacked clarity on a critical issue. That conclusion is reinforced by the fact that the trial judge failed to explain, anywhere in his charge, the difference between injuries referable only to the accident and those injuries, if any, which resulted from the combined effect of the injuries sustained in the accident and the appellant's pre- accident condition.

[43] The appellant argues that the questions posed by the jury in this case suggest that the jury was confused regarding the applicable contributory causation principles. I am not persuaded that the jury's questions, fairly read, bear that interpretation.

[44] The jury asked three questions relating to the testimony at trial. They first requested receipt of a copy of the medical reports of Drs. Reznek and Seyone. Trial counsel for the appellant objected to the provision of the reports to the jury, suggesting that "[I]t would be a very substantial injustice to the plaintiff to have [Dr. Reznek's report] now go before the jury without cross-examination." The respondents' trial counsel did not object. The trial judge accepted the appellant's position and declined to provide either report to the jury.

[45] Shortly thereafter, the jury inquired whether it could examine the transcripts of the evidence of Drs. Reznek and Seyone. The transcripts were not available and could not readily be produced. Further, reading back the entirety of the testimony of both witnesses to the jury would be time-consuming and not easily accomplished based on the state of the court reporter's notes. Accordingly, the trial judge suggested that the jury be invited to [page381] narrow the scope of its inquiry, and to consider the helpfulness of having the trial judge review for the jury his notes of the evidence of both witnesses. Counsel for the parties both recognized that production of the transcripts was unrealistic in the circumstances, and that having the court reporter read back the evidence of the two witnesses to the jury would require substantial time. Trial counsel for the appellant indicated that he had "[no] problem" with the trial judge's proposal to read his notes of the evidence to the jury, and said that it was "certainly . . . preferable to waiting for a transcript to be available."

[46] The jurors then retired to consider the trial judge's suggestions and to have dinner. Upon their return, they requested that the trial judge provide information to them from the evidence of Drs. Reznek and Seyone concerning "prognosis, specifically any estimates of recovery time from [sic] psychosis relating to the specific car accident". The trial judge then read to the jury his notes from the witnesses' evidence concerning the appellant's prognosis.

[47] The appellant does not argue that the trial judge's responses to the jury's questions were inappropriate in the circumstances, or that the trial judge failed in his duty to assist the jurors. In that respect, this case is distinguishable from R. v. Toms, [2003] O.J. No. 952 (Quicklaw) (C.A.). Rather, the appellant submits that the nature of the jurors' questions signifies that they were struggling to recall critical evidence given by two key medical witnesses, Drs. Seyone and Reznek. I agree. That does not mean, however, that the jury had improperly restricted the scope of its consideration of the evidence, or otherwise misconstrued its task.

[48] The third question posed by the jurors clearly indicates that they were focusing their attention at that stage of their deliberations on the prognosis for the appellant's recovery from the injuries sustained by her following the motor vehicle accident. That inquiry does not signify that the jurors also failed to consider, and take into account, the evidence regarding exacerbation by the accident of the appellant's pre- existing condition. To the contrary, the juror's third question sought information concerning the appellant's prognosis for recovery from psychosis "relating to" the accident. That terminology, I think, clearly indicates that the jurors were not restricting their consideration of the evidence to only those injuries sustained in the accident.

[49] The appellant also argues that the jury's award of general damages should be viewed as a conclusion by the jury that the motor vehicle accident materially contributed to the appellant's [page382] losses. I agree that the general damages award, viewed reasonably, is tantamount to a finding by the jury that the accident materially contributed to the appellant's post-accident injuries. That finding was available to the jury on the evidence. Consequently, it was incumbent on the trial judge to instruct the jurors in accordance with Alderson v. Callaghan that the appellant was entitled, under the principles identified in Athey v. Leonati, to full compensation for her overall post-accident condition -- and not just for the discreet injury or injuries sustained in the accident -- if they concluded that it was the result of both the accident and her pre-accident condition and so long as they also concluded, as in my view they ultimately did, that the accident materially contributed to her injuries. That instruction was not given. Accordingly, with respect, I conclude that the trial judge failed to provide an adequate instruction on contributory causation.

(4) The consequences of the inadequate instruction

[50] The respondents make two arguments in support of their submission that this court should not interfere with the jury's assessment of damages, notwithstanding any defect in the trial judge's contributory causation instruction. First, they correctly submit that the failure of the appellant's counsel at trial to specifically object to that instruction weighs against appellate intervention. However, where, as here, the faulty instruction bears directly on the jury's central task, the failure by counsel to object cannot save an otherwise objectionable jury instruction. Accordingly, this argument is not determinative.

[51] In addition, having regard to the applicable standard of appellate review of a jury verdict in a negligence case, the respondents argue that interference with the jury's verdict is precluded because it is amply supported by the evidence and, hence, is not unreasonable.

[52] The applicable standard of review is well-established. As stated by a majority of the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, 211 D.L.R. (4th) 577, at p. 593 D.L.R., per Iacobucci and Major JJ., courts accord great deference to a jury's findings in civil negligence proceedings. The verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the court that no jury, reviewing the evidence as a whole and acting judicially, could have reached it: McCannell v. McLean, 1937 1 (SCC), [1937] S.C.R. 341, [1937] 2 D.L.R. 639, at p. 343 S.C.R. See also Woelk v. Halvorson, 1980 17 (SCC), [1980] 2 S.C.R. 430, 114 D.L.R. (3d) 385, at p. 435 [page383] S.C.R., pp. 388-89 D.L.R.; Vancouver-Fraser Park District v. Olmstead, 1974 196 (SCC), [1975] 2 S.C.R. 831, 51 D.L.R. (3d) 416, at pp. 835-40 S.C.R., pp. 419-21 D.L.R.; and Koukounakis v. Stainrod (1995), 1995 621 (ON CA), 23 O.R. (3d) 299, 12 M.V.R. (3d) 78 (C.A.).

[53] I agree with the respondents' submissions that the jury's verdict is not unreasonable and that it is firmly grounded in the evidence. Further, in my view, while the trial judge's instruction on contributory causation was inadequate, I am satisfied that it occasioned no substantial wrong or miscarriage of justice in this case. I reach that conclusion for several reasons.

[54] As I have already mentioned, I believe that the jury's award of general damages indicates that it found that the accident materially contributed to the appellant's post-accident condition. In that respect, the appellant discharged her burden of proving causation. It was also her obligation at trial, however, to prove the nature, extent and duration of the post-accident condition that she claimed resulted from the accident or, alternatively, from the combined effect of the accident and her pre-accident condition.

[55] The trial judge was clearly mindful of that aspect of the appellant's burden, as appears from his observation to counsel during their pre-charge discussion with him that: "Obviously, I'm not going to ignore the fact that the plaintiff's got to prove her case . . . The plaintiff has said, 'I have all these problems, and I do [sic] react.' So she's got to prove it, even if there were no possible alternative cause in a mix of information, the jury could say, 'We don't believe it'." The trial judge subsequently instructed the jury:

Well, first you've got to decide what the facts were, what happened, what injuries were suffered by the plaintiff and what symptoms developed and how long have they lasted or did they last if some or all of them disappeared.

That part of the trial judge's instruction properly acknowledged the jury's fact-finding responsibility and directed the jurors' attention to the evidence concerning the appellant's overall post-accident condition. It also indirectly underscored the importance of assessing the credibility of the appellant, which was a central issue at trial.

[56] It is useful to reiterate in that connection that the primary defence theory at trial, supported by the evidence of Dr. Reznek, was that the appellant had not suffered the claimed post-accident injuries at all. That position was maintained on this appeal: the respondents continued to argue in their factum that the jury was entitled to conclude that the appellant's post-accident complaints were "made up of whole cloth" and their existence, and [page384] the appellant's credibility, were suspect. The jury's award of $30,000 for general damages and $48,000 for past lost income up to 1999 was a rejection of the primary defence theory.

[57] The respondents' alternative defence theory, however, was that the appellant's injuries following the 1997 accident were minor and short-lived, had been exaggerated by the appellant, and had resolved sometime in 1999. That theory also necessitated an assessment of the appellant's credibility. The jury's award of special damages for past lost income up to 1999 indicates that it accepted the evidence of significant improvement in the appellant's condition by about 1999. It was open to the jury, having found that the accident materially contributed to the appellant's loss, to accept the alternative defence theory and to conclude, on the whole of the evidence and as urged by the respondents, that the appellant, in fact, had sustained only a moderately severe injury in the accident, the overall effects of which resolved within a few years.

[58] In my view, an award of special damages only up to 1999, and not for the ensuing years, was a finding by the jury that the appellant's capacity to earn income, while diminished by the respondents' negligent conduct, was restored by about 1999 such that she was thereafter able to return to work. That finding was open to the jury on the medical evidence in this case, including the evidence of the appellant's own experts, Drs. Chen, Seyone and Price, and the evidence of the respondents' experts, Drs. Upton and Reznek.

[59] Given that medical evidence, I am unable to conclude that no jury, reviewing the evidence as a whole and acting judicially, could have reached the same conclusion as that reached by the jury in this case. To the contrary, although the trial judge's contributory causation instruction could, and should, have been more comprehensive and specific, when the jury's general and special damages awards are considered in combination, and in the context of the medical evidence in this case, it is apparent that the jury found that the accident materially contributed to the appellant's post-accident condition and that it awarded damages for the duration of the appellant's overall condition related in any way to the accident. That approach by the jury to its task satisfied the contributory causation and related compensatory principles identified in Athey v. Leonati.

E. Disposition

[60] In the result, for the reasons given, the appeal is dismissed. The respondents are entitled to their costs of the appeal, [page385] if requested, on a partial indemnity basis, fixed in the amount of $13,500, inclusive of disbursements and Goods and Services Tax.

Appeal dismissed.

Notes

Note 1: The term "post-concussive syndrome" was defined by one of the appellant's experts at trial as a diagnosis descriptive of a cluster of symptoms associated with mild head injuries, in certain cases. In textbook cases, the symptoms include poor concentration, memory deficits, depression and chronic pain.

Note 2: Neuropsychiatry is a subspecialty of psychiatry which is concerned with neurological conditions that affect the brain, including, but not restricted to, brain injuries.