COURT FILE NO.: 43250
DATE: 2014/07/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dawn Doxtater, Jay Taylor Doxtater, and Taylor Martin Doxtater, Valerie Susan Doxtater by their litigation guardian Dawn Doxtater and Glenda Doxtater and Susan Doxtater
K. Arvai & D. Murphy, for the plaintiffs
Plaintiffs
- and -
Ryan Farrish, also known as Ron Farrish, Dufferin Construction Company, a division of St. Lawrence Cement Inc. and St. Lawrence Cement Inc. and Dynamic Leasing
M. Forget & S. Merredew, for the defendants
Defendants
HEARD: March 11th, 12, 13, 14, 15, 18, 19, 20, 21, 25, 26, 27, 28, April, 2, 4, 5, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 2013 with written closing arguments by June 27th, 2013.
MORISSETTE J.:
REASONS FOR JUDGMENT
Introduction:
[1] The evidence in this case was heard over six weeks (originally estimated to be three weeks with a jury) culminating with written submissions at the end of June 2013. This is a claim arising from a motor vehicle accident that took place on August 3rd, 2001.
[2] For reasons that will be discussed below, this court found that it was necessary to discharge the jury and the case proceeded as a judge alone trial.
[3] To say this was an over-lawyered trial would be an understatement. Almost every issue seems to have been bitterly contested, by the parties, much of which was undeserving of such treatment and which prolonged the trial unnecessarily.
The claim:
[4] The plaintiff, Ms. Doxtater, claims damages for personal injuries she alleges that she sustained in the motor vehicle accident. Ms. Doxtater’s children and husband claim damages pursuant to the Family Law Act (FLA).
[5] By the time of the accident, Ms. Doxtater had worked as a payroll clerk at the Oneida First Nation for approximately six years prior to the accident. Her husband, Jay Doxtater, was and is an iron worker who travels extensively for work. He leaves early in the morning and returns most often late in the evenings. Taylor and Valerie Doxtater are the plaintiff’s children and were at the time of the collision, 15 and 12 respectively.
[6] The defendants are Ryan Farrish, the other driver; Dufferin Construction Co., Mr. Farrish’ s employer, where Mr. Farrish was a project engineer and supervisor at the time of the accident, and which owned the pickup truck driven by Mr. Farrish; and St. Lawrence Cement Inc., the parent company of Dufferin Construction Co. at the time of the accident.
Amendment to the Statement of Claim:
[7] In their closing submissions, the plaintiffs sought leave to amend the statement of claim to clarify the basis of liability for Dufferin Construction Co. and St. Lawrence Cement Inc. In particular, the plaintiffs wish to add the following paragraph:
- (a) The defendants Dufferin Construction Company and St. Lawrence Cement Inc. were at all material times owners of the 2011 GMC motor vehicle operated by the defendant Farrish. The defendant Farrish was at all material times employed by the defendant Dufferin, which defendant is vicariously liable for the negligence of its employee Farrish. Dufferin and St. Lawrence are liable in law as owners of the 2011 GMC motor vehicle operated by the defendant Farrish.
[8] The defendants resist this request on the basis that the amendment raises a new cause of action based on new facts and they further allege prejudice arising from the expiry of a limitation period.
[9] With respect, I disagree with the defence. Dufferin was aware of the employment relationship at the date of the collision. Mr. Farrish answered questions at his examination for discovery in May 2007 regarding the employment relationship and the fact that he was driving the vehicle in the course of his employment at the time of the collision. The plaintiffs read in that part of the discovery transcript as part of their case. Dufferin was clearly aware of this evidence because it was represented by the same counsel as Mr. Farrish. There is nothing that Dufferin could have done differently to defend the claim arising from vicarious liability, since it flows directly from the employment relationship, which is not in dispute.
[10] The amendment does not add an unrelated statute-barred claim to an existing statement of claim. The amendment sought conforms to evidence both at the discovery and at trial. Mr. Farrish was operating a company vehicle in the course of his employment. His employer was Dufferin. Dufferin’s liability arises both as owner of the vehicle as well as employer.
[11] Paragraph 7 of the statement of claim alleges liability on the part of the defendants arising from negligence in the operation of the defendant’s motor vehicle. The only way in which such negligence could attract liability by defendant Dufferin would be as owner pursuant to Section 192(2) of the Highway Traffic Act and for vicarious liability as employer.
[12] Paragraph 6 of the statement of claim clearly states that the vehicle was being operated by the defendant Farrish. The inference is that the claim against Dufferin and St. Lawrence Cement arises from the negligent operation of the vehicle. This is acknowledged at paragraph 4 of the statement of defence, which refers to ownership of the vehicle by Dufferin and St. Lawrence Cement.
[13] The claim against Dufferin arises from the facts already pleaded, namely the negligent operation of the defendant’s vehicle. Dufferin’s vicarious liability as employer is not a new and unrelated cause of action based on new facts. The claim flows directly from the facts previously pleaded.
[14] In my view, the negligence of the defendant Farrish has been pleaded. Ownership of the vehicle by Dufferin and St. Lawrence Cement has been admitted. Dufferin would be liable as owner by operation of law. Similarly, Dufferin would be liable vicariously as employer, also by operation of law. This is not the institution of a new cause of action. It is an alternative claim with respect to the same cause of action.
[15] Rule 26.01 of the Rules of Civil Procedure permits an amendment at the end of the trial. I see no prejudice to the defendants arising from the proposed amendments and accordingly, the amendments are hereby allowed as requested in the notice of motion dated May 2nd, 2013.
[16] In addition, the plaintiff seeks to correct the spelling of the surname of the plaintiff from Doxtator to Doxtater and of the surname of the defendant from Farish to Farrish, which is granted.
The Accident
[17] Ms. Doxtator, 35 years old at the time, and the defendant Mr. Farrish were involved in a serious motor vehicle accident at approximately noon on August 3rd, 2001 at the intersection of Mill Road and Third Line in Southwold Township near London, Ontario. The collision occurred on what was agreed by the parties to be a clear and sunny day.
[18] Ms. Doxtator was travelling northbound on Mill Road. Mr. Farrish was travelling eastbound in the pickup truck on Third Line, and after having undisputedly stopped at the stop sign that controlled Third Line at the intersection with Mill Road, he proceeded to enter the intersection. There is no stop sign controlling traffic approaching the intersection from the north or south.
[19] Ms. Doxtator’s vehicle, travelling at an agreed upon speed of 80 km/h, struck Mr. Farrish’ s vehicle on its passenger side in the northbound lane of Mill Road.
[20] Both vehicles suffered extensive damage. As the evidence showed, the forces involved in the collision were sufficient to essentially destroy both vehicles.
[21] It is agreed by the parties that there were no skid marks, no squealing tires, no sounding of the horn, and no swerving or evasive action at the time of the accident.
Liability:
[22] The plaintiffs assert that Mr. Farrish is at fault. There is no dispute that he was driving the pickup truck owned by his employer Dufferin, which itself is a division of the co-defendant St. Lawrence Cement Inc.
[23] The plaintiffs assert that Dufferin, in particular, is vicariously liable for the alleged negligence of its employee, Mr. Farrish. On this point, the plaintiff relies on the Ontario Court of Appeal decision in Vollick v. Sheard (2005), 75 O.R. (3d) 621, at para. 44 where it stated that “a defendant otherwise protected from liability as owner of a motor vehicle is nevertheless held liable to an injured party on the basis of his vicarious liability for the negligence of his employee”.
[24] The Doxtater vehicle suffered extensive front-end damage as a result of the impact with the defendant’s vehicle, and also suffered damage to the rear driver’s side, likely as a result of striking a utility pole at the scene of the crash. The Doxtater vehicle came to rest on the north side of Third Line, east of the intersection facing southbound, being the opposite direction to which it had been travelling. The defendant’s pickup truck also suffered extensive damage to the front passenger side and came to rest on its side in the ditch on the east side of Mill Road, at a location that was more north than east of the intersection.
[25] The defence asserts that Ms. Doxtater was not paying attention when she approached the intersection, as demonstrated by the lack of skid marks at the scene of the accident. The defence further asserts that given the fact that Ms. Doxtater has not produced her cell phone records for that day and time of the collision, this would support an inference that Ms. Doxtater was using a phone at the time of the collision.
[26] The defence relies on Steeves v. Stapleford, [1967] O.J. 93 (C.A.) for the proposition that just because one has the right of way it does not absolve one of Ms. Doxtater’s responsibility to maintain a proper lookout. The defendants say that the failure to do just that contributed to the accident. However, in Steeves, the intersection involved was uncontrolled in all directions, which is not the case here. There is no evidence that Ms. Doxtater was on the phone, nor is there evidence that she was not paying attention while driving at 80 km/h. As will be discussed below, Ms. Doxtater has no memory of the accident and therefore was unable to confirm or deny the use of her cell phone. She was unable to remember which cell phone number she had 12 years later and therefore was unable to produce any bills for same. In my view the cell phone issue is mere conjecture by the defence.
[27] Ms. Doxtater had the right-of-way when proceeding through the intersection. Mr. Farrish did not and he failed to yield to her right-of-way by pulling out in front of her, which caused the collision. He is fully responsible for the collision. Vicarious liability flows from that finding of fact.
[28] In view of the conclusion outlined above, no finding of contributory negligence is warranted.
The days following the accident:
[29] Ms. Doxtater has no memory of the accident or of the minutes preceding the collision. This was referred to by the experts as retrograde amnesia. She has limited memory of events at the scene of the accident immediately post-collision and little to no memory of the trip to the hospital in the ambulance.
[30] The ambulance arrived at the scene at approximately 12:17 p.m. and departed at approximately 12:35 p.m. Ms. Doxtater arrived at the hospital approximately 15 minutes later and was triaged. She was discharged that same day at approximately 6:00 p.m.
[31] There is no dispute that Ms. Doxtater suffered physical injuries as a result of the accident. Her injuries included lesions and bruising to her legs, chest, abdomen and neck. She also suffered multiple contusions and injuries as a result of shards of glass striking her face, arms and legs.
[32] Ms. Doxtater had several medical visits over the days immediately following the accident. She complained of persistent and generalized pain as a result of the accident, particularly in the right shoulder, right chest, neck, and right knee areas. Lower back pain was also reported. These physical injuries began to improve marginally over the weeks and months following the accident. She underwent physical therapy, visited a gym, and was prescribed pain medication in the form of Percocet as well as Naprosyn.
[33] Ms. Doxtater was unable to return to work as a payroll clerk for more than a month following the accident due to her physical injuries and pain.
[34] Ms. Doxtater’s family doctor’s note of August 7th, 2001, records that in addition to the complaint of generalized pain since discharge, she complained of memory and concentration difficulties.
Cognitive difficulties and diagnosis of acquired brain injury:
[35] Before the collision of August 3rd, 2001, Ms. Doxtater’s work performance evaluation dated January 12th, 1998 described her as an excellent employee and noted as follows:
Ms. Doxtater’s position is operating at capacity. I note that she has developed her ability to adapt to interruptions and then, continue to carry on without losing her train of thought. She is also able to switch her concentration from one function to another without confusion. In summary, she is performing a large quantity of work but remains well organized.
[36] Following Ms. Doxtater’s return to work in early September 2001, she began to be much more aware of memory and cognitive impairments. She was struggling to carry out the duties of her position. She had difficulty remembering tasks, completing the payroll on time, and she was also forgetting where she placed items. She would become emotional as a result of these problems.
[37] Ms. Doxtater was referred by her family doctor to Dr. Emilie Newell for “memory problems post head injury”[^1]. Dr. Newell is a physiatrist whose main clinical interest since 1985 has been acquired brain injury and the rehabilitation of persons living with the effects of brain injury.
[38] Dr. Newell first saw Ms. Doxtater in October 2001, when she noted the continued presence of memory difficulties as suggestive of a brain injury. The Glasgow Coma Scale Test administered to Ms. Doxtater in the ambulance immediately following the collision on August 3rd, 2001 registered as normal. The MRI undergone by Ms. Doxtater shortly thereafter did not register any notable concerns. Nevertheless, Dr. Newell testified that these results do not exclude the possibility of a mild brain injury having been suffered.
[39] Dr. Newell referred Ms. Doxtater to Lisa Jadd, a speech-language pathologist for rehabilitation in connection with cognitive impairments. Ms. Jadd noted a number of impairments, which represented changes in Ms. Doxtater’s cognitive functioning.
[40] On February 1st, 2002, Ms. Doxtater met with Dr. Susan Pigott for a neuropsychological assessment. Dr. Pigott noted additional cognitive changes, such as difficulties with multi-tasking and continued memory problems. Dr. Pigott felt that these cognitive impairments demonstrated on neuropsychological assessment were also affected by a moderate depression, headaches and pain, and feeling of being overwhelmed by the effects of the accident.
[41] Ms. Nancy Ireland, Ms. Doxtater’s former supervisor at Oneida, testified that she became aware of Ms. Doxtater’s cognitive difficulties and wondered whether she had returned to work too early following the collision. She testified that there was a significant difference in Ms. Doxtater’s performance at work following the collision. She made numerous mistakes, which she did not before the accident. This eventually prompted a job change for Ms. Doxtater in late 2003 or shortly after.
[42] Oneida sought to accommodate Ms. Doxtater upon Dr. Newell’s advice. In either late 2003 or early to mid- 2004, Ms. Doxtater became a “finance clerk” at Oneida. Dr. Newell stayed apprised of Ms. Doxtater’s efforts at work and approved the job change in a letter dated February 14th, 2004.
[43] By March 1st, 2005, Ms. Doxtater was being “written-up” at work. Her cognitive impairments were affecting her ability to complete bank reconciliations accurately. She had been completing bank reconciliations without difficulty for almost six years prior to the collision.
[44] Ms. Doxtater went off work in October 2005, primarily due to the illness and death of her grandmother with whom she was very close. She returned to work in February 2006 as a “membership clerk”. Dr. Newell supported her move to this position in a letter dated January 7th, 2006.
[45] Ms. Doxtater remained as a “membership clerk” when her efforts to work as an administrative assistant and an executive assistant between January 2008 and July 2010 failed. Ms. Doxtater’s failed attempt to work with Jessica Hill as an administrative assistant and an executive assistant was confirmed by Ms. Hill’s evidence that Ms. Doxtater was unable to complete the tasks necessary for the position.
[46] Since that time, Ms. Doxtater has remained as a “membership clerk” completing First Nation status cards, which are then reviewed, corrected and entered by a co-worker into the computer.
Expert evidence:
[47] The use of expert evidence was also an issue at trial. The admissibility and credibility of such evidence must be carefully gauged.
[48] Expert evidence must, of course, be relevant, necessary, not otherwise excluded by an exclusionary rule, and come from a qualified expert. Even if these criteria are met, the court retains the ability to exclude expert evidence where, on a balance of probabilities, its probative value is outweighed by its prejudice.[^2]
[49] Experts should be neutral and objective when giving evidence – they are not advocates. The evidence should be the independent product of the expert and should be aimed at providing independent assistance to the court.[^3] If their evidence is not, an expert may be found to be unqualified or their evidence worth little weight.
[50] Although there are some with a different view, subject to the same reliability and credibility standards, treating physicians may be qualified to give expert evidence. They may have a greater knowledge of their patient’s situation and they may be in a better position to opine on what the future holds.[^4]
[51] In my view, the expert evidence provided in this case is admissible; any deficiency goes to weight and credibility rather than admissibility.
[52] Dr. Newell testified that Ms. Doxtater’s cognitive symptoms were related to a brain injury suffered in the August 3rd, 2001 motor vehicle collision.
[53] Dr. Newell’s evidence was extensively challenged by the defence. The defence objected to the admissibility of her opinion evidence and her evidence was eventually heard in a voir dire. In short, the defence asserted the following:
a. As a physiatrist, she is not qualified to speak to what in her view is acquired brain injury;
b. As a treating physician, she lacked the necessary impartiality to give opinion evidence to the court; and
c. Her lack of openness and her need to defend her diagnosis rendered her an advocate for the plaintiff instead of an expert attempting to assist the court.
[54] It must be said that, treating physicians can indeed serve as a very useful source of expert evidence at trial, providing that the basics of admissible expert evidence are met. Dr. Newell’s evidence was certainly relevant and necessary. As to her qualifications, she is a physiatrist who has specialized in brain injury rehabilitation for many years.
[55] There is no question that Dr. Newell held firm to certain opinions both in examination in-chief and during cross-examination. Another health care professional might disagree with her assessment. However, this is not a basis to conclude that Dr. Newell is an advocate, undermining the strength of her opinion. Furthermore, the fact that she receives remuneration for her reports and that she treats many accident victims who are referred to her do not detract from her impartiality.
[56] The plaintiffs also called Dr. Scott Garner. At the time of the trial, he had worked for nine years as the director of the acquired brain injury clinic at Chedoke McMaster Hospital, and had approximately 25 years of experience in the rehabilitation of brain injured patients. He diagnosed Ms. Doxtater with an acquired brain injury during his first assessment in September 2009. He further assessed her before the trial in November 2012.
[57] He testified that there are rarely classic neurological signs associated with a mild brain injury, which explains why such an injury would not register on the various cognitive tests administered to Ms. Doxtater.
[58] Both Dr. Newell and Dr. Garner testified that head trauma is not required for an acquired brain injury to occur. Their evidence was to the effect that such an injury can be caused by the whipping motion of the head during a collision. When a brain injury is mild, which Ms. Doxtater admits her injury is in this case, it will often not appear on an MRI, nor will it register on the Glasgow Coma Scale Test. Indeed, the myofascial soft tissue injuries that Ms. Doxtater exhibited in her neck, right shoulder, and right upper chest, as well as bruising she exhibited on her knees, support the conclusion that significant rotational forces were exerted on her head during the collision, which more likely than not led to an acquired brain injury.
[59] I found Dr. Garner credible and much of his expert opinion echoed that of Dr. Newell.
[60] Dr. Berry, a neurologist and a psychiatrist with over 40 years of experience in the diagnosis, treatment and prognosis of brain injury, testified for the defence. In his opinion, a brain injury requires trauma to the head and will be revealed by objective findings either on an MRI or by the appearance of small lesions on the brain.
[61] In Dr. Berry’s opinion, symptoms consistent with a mild traumatic brain injury, such as memory lapses and difficulty concentrating, could be caused by pseudo-dementia. Such symptoms are often misinterpreted as the patient having actually sustained a brain injury when, in fact, the symptoms are often better explained by other factors, such as stress and depression.
[62] Dr. Berry testified that in a hospital setting, a diagnosis of brain injury is conducted by either a neurologist or a neurosurgeon, not by a physiatrist.
[63] Dr. Newell testified that in London not everyone suspected of having sustained a brain injury is referred to a neurologist. Dr. Garner was of the same opinion – that a neurologist rarely sees a patient like one with Ms. Doxtater’s symptoms. Accordingly, it stands to reasons that the fact that Ms. Doxtater was never referred to a neurologist over the course of her years of treatment is of little relevance.
[64] Dr. Berry conducted an assessment and came to the conclusion that Ms. Doxtater’s cognitive difficulties from beginning to end were caused predominantly by emotional difficulties arising from marital and family stress at home. Further, in his view, pseudo-dementia is also a significant contributing cause of Ms. Doxtater’s cognitive difficulties and impairments.
[65] Dr. Newell disagreed with Dr. Berry’s opinion that pseudo-dementia was the cause of Ms. Doxtater’s cognitive difficulties and impairments.
Family issues:
[66] The defence spent considerable time attempting to establish that family issues in the time after the accident are the material cause of Ms. Doxtater’s cognitive impairments. In short, these family problems included, but were not limited to the following:
a. Jay Doxtater had an extramarital affair in early 2003. Following the affair, Ms. Doxtater attended her family doctor, with her husband, so that she could be tested for a sexually transmitted infection.
b. Valerie Doxtater became involved in drug use, most likely starting in the spring of 2002, which persisted for several years. She became pregnant in 2004 at about 15 years of age. It is unclear whether Ms. Doxtater was aware of her daughter’s drug use.
c. Taylor Doxtater also had drug addiction issues and legal troubles. There was evidence that he abused crack cocaine for a time. He was charged, convicted and incarcerated several times. He was also homeless for a while. It appears that these events started in approximately 2005 after Taylor’s graduation from high school.
[67] The majority of the defence argument concerning the role of family issues in Ms. Doxtater’s cognitive functioning is grounded in the evidence of Dr. Berry. His evidence, in short, is that Ms. Doxtater did not suffer an acquired brain injury as a result of the accident on August 3rd, 2001 and any cognitive impairment experienced to this day can be attributed to the family stressors indicated above. In his view, any mother subjected to this type of emotional turmoil would render most to be completely disabled. The defence submits that this more than explains any memory lapses, difficulties concentrating, low moods and the low energy that Ms. Doxtater reports.
[68] The defence further relies on Dr. Berry’s opinion that Ms. Doxtater became hypersensitive to her alleged cognitive difficulties and that she had a pre-existing back pain complaint in any event.
[69] In my view, however, much of Dr. Berry’s testimony and opinion was based on the erroneous assumption that Ms. Doxtater had any psychological condition dealt with and resolved before the family issues arose. Further, Dr. Berry testified that Ms. Doxtater’s family issues developed in 2001 prior to the accident. The evidence indicates, however, that this was not the case. There is an abundance of evidence establishing that Ms. Doxtater’s cognitive functioning was impaired – and remained impaired – long before any family stressors took hold, and certainly before Ms. Doxtater learned of her husband’s extramarital affair in February of 2003.
[70] Respectfully, where the evidence of Dr. Berry conflicts with the evidence of Dr. Garner, Dr. Newell, Dr. Pigott and Dr. Duwyn (to which I will refer later), I prefer the evidence of the latter. The preponderance of the evidence that I accept support the conclusion that Ms. Doxtater has suffered from acquired brain injury as a result of the motor vehicle collision.
Depressive Disorder:
[71] In addition to an acquired mild brain injury and cognitive impairments, the plaintiffs submit that the evidence demonstrates that Ms. Doxtater suffers from a major depressive disorder as a result of the accident of August 3rd, 2001.
[72] Following assessments on February 1st, 2002 and again on January 26th, 2003, Dr. Pigott diagnosed moderate depression.
[73] On March 13th, 2002, Dr. Newell prescribed Fluoxetine as an anti-depressant and on the recommendation of Dr. Pigott, she referred Ms. Doxtater to a social worker on March 29th, 2002 to begin counselling. Ms. Doxtater did not feel the social worker helped with her symptoms. As a result, she was referred to Dr. Michelle Duwyn, a clinical psychologist.
[74] Dr. Duwyn started treating Ms. Doxtater for depression in mid-2003 and she has continued to treat her up to the time of trial. She has spent more than 50 treatment sessions with her over the years. Ms. Doxtater testified that she has received benefits as a result.
[75] Dr. Duwyn diagnosed Ms. Doxtater with a “major depressive disorder” and anxiety on July 9th, 2003 as a result of various testing and Ms. Doxtater’s clinical history post-accident. The behaviors noticed included low mood; frequent crying; loss of interest; irritability; feelings of hopelessness; passive thoughts of suicide; significant memory and concentration problems; and fatigue and restlessness. There was also a noticeable decrease in Ms. Doxtater’s desire for social and recreational activities.
[76] Dr. Duwyn testified that progress with treatments has been slow, that gains have not been sustained well over time and symptoms are not expected to be alleviated any time soon. In her opinion, Ms. Doxtater will continue to cope, having good days and bad days, but ultimately her depression is entrenched and in Dr. Duwyn’s view, her prognosis has worsened. In fact, in Dr. Duwyn’s view, Ms. Doxtater’s pain and cognitive difficulties have contributed to her depression, and in turn, the depression has increased her cognitive difficulties and decreased her pain management abilities.
[77] I find that Dr. Duwyn was a credible and an appropriate expert. She testified in a voir dire. The defence argued that she lacked the objectivity and impartiality required of an expert because she advocated for Ms. Doxtater and she gave opinion for which she was not qualified. The defence contends that Dr. Duwyn, as a treating psychologist, stands to gain from her treatment plan being followed and funded by the auto insurer, which the defence submits is a conflict. Finally, the defence submits that Dr. Duwyn’s evidence is tainted because she did not consider pseudo-dementia and Ms. Doxtater’s family problems as possible sources of her cognitive issues.
[78] The fact that Dr. Duwyn did not consider pseudo-dementia and Ms. Doxtater’s situation at home as a cause of cognitive difficulties does not affect her opinion as an expert. Dr. Duwyn did not treat Ms. Doxtater for cognitive difficulties, but rather for psychological symptoms of anxiety and depression, for which she was amply qualified and for which to give an opinion.
[79] The fact that she treats Ms. Doxtater and is compensated through the automobile insurance regime cannot, in my view, be a conflict on its own. Dr. Duwyn’s opinion is supported by the overwhelming evidence of the other medical experts who either treated Ms. Doxtater or assessed her for the purpose of this litigation.
Causation:
[80] The plaintiffs argue that when determining causation, the “but for” test is applicable, but when gauging the defendant’s negligence, it need only be a cause and not the cause of the injury.
[81] Following from this, it is important to distinguish between causation as the source of the loss and causation in relation to the assessment of damages in tort. Apportionment between tortious and non-tortious causes of loss is contrary to settled principles of tort law. It has been said that “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.”[^5]
[82] The defendants say that the plaintiffs’ submissions on causation are wrong in law. They submit that where there is evidence demonstrating that injuries were caused by or can be explained by non-tortious causes and not the alleged tortious causes, causation is not made out.
[83] The defence submits that irrespective of the collision, the family issues would have caused Ms. Doxtater’s depression.
[84] On the other hand, the plaintiffs submit that it is more likely than not that Ms. Doxtater was much more vulnerable to the effects of the family issues because of the injuries she suffered in the collision. They further submit that but for the collision, her family life would be remarkably different.
[85] Although I accept that the family issues would likely have occurred notwithstanding the collision, I am unable to conclude that it is only the family issues that led to her depression. I find that the collision caused a mild brain injury, which rendered Ms. Doxtater much more vulnerable to the effects of the family issues, which in turn contributed to her depression.
[86] Athey v. Leonati instructs that “the law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped produce the harm… It is sufficient if the defendant’s negligence was a cause of the harm.”[^6] Accordingly, if the family troubles combined with the effects of the collision are the cause of Ms. Doxtater’s current condition, the defendants remain fully liable.
[87] Furthermore, Athey stands for the proposition that Ms. Doxtater’s damages are not to be reduced because of a contribution from non-tortious contributing causes.[^7]
[88] For these reasons, I find that the contribution from the family issues does not absolve or reduce the defendants’ responsibility because Ms. Doxtater’s acquired mild brain injury, depression and chronic pain syndrome were caused by the collision.
Threshold:
[89] It is agreed in this case that only s. 267.5(5)(b) is at issue. It reads as follows:
Non-pecuniary loss
(5) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under 61 (2) (e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained, …
(b) Permanent serious impairment of an important physical, mental or psychological function.
[90] The Court of Appeal[^8] has expressed the test in the following way:
Has the injured person sustained permanent impairment of a physical, mental or psychological function?
If yes, is the function which is permanently impaired an important one?
If yes, is the impairment of the important function serious?
[91] The legislation[^9] applicable to the accident in this case reads as follows:
4.2(1) A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:
- The impairment must,
i. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
ii. substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, or
iii. Substantially interfere with most of the usual activities of daily living, considering the person’s age.
- For the function that is impaired to be an important function of the impaired person, the function must,
i. be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to use the accommodation to allow the person to continue employment,
ii. be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training,
iii. be necessary for the person to provide for his or her own care or well-being, or
iv. be important to the usual activities of daily living, considering the person’s age.
- For the impairment to be permanent, the impairment must,
i. have been continuous since the incident and must, based on medical evidence and subject to the person reasonable participating in the recommended treatment of the impairment, be expected not to substantially improve,
ii. continue to meet the criteria in paragraph 1, and
iii. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.
[92] A court must look at the totality of the evidence, whether medical or lay, to assess and determine whether the interference with the plaintiff’s life is substantial.
[93] It has been found in many cases that a change in job function or efficiency is sufficient to constitute a substantial interference with the ability of an injured person to continue his or her employment.[^10]
[94] The evidence supports a finding that Ms. Doxtater’s impairments are permanent and are to “important” functions. Ms. Doxtater’s work demanded a certain level of cognitive ability and because of the acquired mild brain injury and the depression that followed, she has been unable to continue working as a payroll clerk, a position she had successfully engaged in for six years prior to the accident.
[95] Although Ms. Doxtater continues to work full-time, her work has been altered to allow her to perform at her level of capability. She completes status cards, which are then reviewed by another before entry. She no longer has the job responsibilities that she had before the accident and she has no hope or ability to advance in her employment.
[96] She has lived and continues to live a rather sedentary lifestyle in terms of physical movement. Having said that, a serious impairment is one which causes substantial interference with the ability of the injured person in question, and not some other objectively discernible “reasonable person”, to perform his or her usual daily activities or to continue his or her regular employment.
[97] Based on the law above cited and on the evidence that I accept, I am satisfied that Ms. Doxtater is an injured person who has sustained permanent impairment of all three functions, physical, mental and psychological, which are of an important and serious nature. Accordingly, the threshold has been met.
Damages:
General Damages:
[98] Ms. Doxtater was 35 years of age when she suffered a mild traumatic brain injury caused by the motor vehicle accident. Although her physical pain is neither constant nor severe, it remains a part of her overall condition which affects her activities of daily life. As indicated above, Ms. Doxtater has suffered from impaired cognitive functioning since August of 2001. This has had an impact on her short term memory and more importantly on her ability to concentrate. That has had an impact on her ability to continue in the work function that she performed before the motor vehicle accident. Her depression and lack of energy also have a negative impact on her ability to enjoy life.
[99] Although the plaintiffs argue that Ms. Doxtater lives in fear of losing her job, there is very little evidence to support such a conclusion. On the contrary, Ms. Doxtater’s employer has been extremely accommodating of Ms. Doxtater’s situation since the accident and one would expect it will continue to be so. It is to be commended.
[100] The plaintiff seeks $150,000 in general damages, while the defendant suggests a very nominal amount, in the range of $20,000, if anything.
[101] In this court’s view, an award of $100,000 for pain and suffering, loss of enjoyment of life and loss of amenities of life is fair and reasonable in the circumstances.
[102] The plaintiffs argue that general damages should not be reduced by $15,000 as required by s. 267.5(7) of the Insurance Act. In their view, damages awarded against defendant Dufferin as a result of its vicarious liability are not to be reduced by the statutory deductible. They rely on Walker v. Ritchie, [2003] O.J. No. 18 (S.C.J) in which Brockenshire J. agreed with the following reasoning: “the plain and ordinary meaning of the words used is that the provision does not extend any protection to the employer in this situation.”
[103] I accept the rational that a vicariously responsible employer is liable for a plaintiff’s entire damages without any deduction.
Pecuniary losses:
[104] Ms. Doxtater claims for loss of income both past and future as well as loss of earning capacity and future care costs.
[105] From the time that Ms. Doxtater left high school, she has worked steadily and continued to better her position and earnings. She began her employment with the Oneida First Nation in October, 1994 and held the following positions:
a. October 17, 1994 – April 1, 1995: Finance Clerk
b. April 1, 1995 – December 2003: Payroll Clerk (date of motor vehicle accident: August 3, 2001)
c. January 2004 – November 25, 2005: Finance Assistant
d. October 18, 2005 – February 6, 2006: Sick leave
e. February 2006 – September 2006: Membership Clerk
f. September 5, 2006 – November 2007: Council Assistant
g. January 9, 2008 – June 16, 2008: Administrative Assistant
h. June 17, 2008 – May 8, 2009: Acting Executive Assistant
i. May 11, 2009 – July 8, 2010: Administrative Assistant
j. July 7, 2010 – Present: Membership Clerk
[106] When Ms. Doxtater was promoted to executive assistant with a pay rate of $17.25 per hour, it was temporary until an executive director was hired. The only evidence is that the position of administrative assistant paid $17.25/hour which was increased to $19 per hour in May 2009. That is the same rate that Ms. Doxtater earned at the time of trial with substantially less responsibility.
[107] For that reason, there is no loss of income, either past or future.
[108] In my view, what Ms. Doxtater has lost is an ability to take on increased responsibilities with increased earnings as a result of the impairments caused by the motor vehicle accident. She is dependent on her employer’s goodwill which might not be duplicated if she were obliged to seek alternative employment. I view this as a loss of competitive advantage for which I grant an award of $50,000 to compensate her.
Future Care Costs:
[109] The plaintiffs allege that Ms. Doxtater will incur costs for housekeeping, grocery shopping and in other home maintenance.
[110] The majority of the submissions are grounded in the recommendations of Ms. Kelly Farrell, an occupational therapist. However, the evidence overwhelmingly establishes that in the last twelve years, Ms. Doxtater has rarely requested such assistance, this despite her husband often being gone due to work and her children having moved out of the home quite some time ago. It stands to reason that Ms. Doxtater undertakes these tasks on her own. To award such care costs is speculative at best. Put another way, there is no evidence that there is a substantial risk that she will incur such costs in the future. Accordingly, I dismiss the claim for future care costs.
FLA Damages:
[111] The plaintiffs seek compensation for loss of care, guidance and companionship, which claims must be assessed in an objective manner.
[112] The plaintiffs claim $45,000 for each Jay, Taylor and Valerie Doxtater.
[113] Notwithstanding Ms. Doxtater’s permanent limitations and impairments the overwhelming evidence is that she continues to be present in the lives of and supportive of her husband, her children and grandchildren. However, because she is still moderately limited in her social life and intimacy with her husband, I am of the view that the sum of $15,000 for each for FLA damages is reasonable.
Total damages awarded:
[114] Total damages awarded as follows:
Ms. Doxtater: $100,000 for general damages;
Pre-judgment interest at 5% from October 4th, 2001 to December 31st, 2013. Given the special circumstances surrounding the delay in issuing these reasons, this date is the appropriate date to which prejudgment interest is calculated. Put another way, the parties split the responsibility for the delay which although not theirs seems a reasonable compromise;
Loss of competitive advantage of $50,000;
Pre-judgment interest on the pecuniary damages at 5% from July 7th, 2010;
Jay Doxtater: FLA damages in the sum of $15,000;
Taylor Doxtater: FLA damages in the sum of $15,000;
Valerie Doxtater: FLA damages in the sum of $15,000;
Pre-judgment interest on FLA damages from October 4th, 2001 to December 31st, 2013 at a rate of 5%;
Summary of findings:
[115] The following is a summary of the court’s findings:
The defendant Farrish was negligent in the operation of his motor vehicle on August 3rd, 2001;
The plaintiff, Ms. Doxtater, was not contributorily negligent in the operation of her motor vehicle on August 3rd, 2001;
But for the car collision on August 3rd, 2001, Ms. Doxtater would not have suffered the physical injuries, the cognitive symptoms and the psychological symptoms that followed the collision, and therefore causation is satisfied;
For the purpose of an award of damages against the “protected” defendants, Ms. Doxtater satisfies the exception set out in s. 267.5(5) of the Insurance Act;
Leave to amend the statement of claim in accordance with the relief sought in the notice of motion dated May 2nd, 2013 is granted; and
As a result, Judgment for the full amount of assessed damages against Dufferin shall issue without deduction of the statutory deductible prescribed by s. 267.5(5) of the Insurance Act and shall issue for the net amount after deduction against the defendants Ryan Farrish and St. Lawrence Cement Inc.
Ruling on striking the jury:
[116] It is clear that the right to a jury trial is both a statutory and a substantive right with which the court should not interfere absent just cause. The onus is on the party moving to justify the discharge of a jury and that onus is substantial. An order discharging a jury must be a matter of last resort and should not be made lightly.
[117] At the conclusion of the defence opening address, it was not surprising that plaintiffs’ counsel sought an order to strike the jury. In my view, the cumulative effect of defence counsel’s opening remarks could not be effectively neutralized by any corrective instructions that might be given.
[118] In essence, what was said and the tone in which it was said caused me grave concern. The defense’s opening address was not an outline of the anticipated evidence, but rather a vitriolic attack on the character of Ms. Doxtater liberally peppered with impermissible argument.
[119] The following are but a few examples of what was said which was variously inflammatory, rhetorical, sarcastic or ridicule of the plaintiff, any of which likely had a negative impact on the jury:
she never has taken any antidepressant or pain medication;
the plaintiff is asking for tens of hundreds of thousands of dollars;
was she in pain last week;
she wants a housekeeper right now;
the only accommodation made for her at work was to suggest a calendar and ear plugs;
she was discharged from the hospital without prescriptions;
I tell you that Dr. Duwyn was referred by a lawyer to investigate the law suit.
she only wants to work part-time;
she is claiming $149,000 for grocery shopping and housekeeping;
does it make any common sense to you that she is still injured twelve years later; and
this lawsuit is a “lottery” for her.
[120] Following opening submissions and the plaintiff’s motion, I retired to consider overnight what I might say to the jury in order to relieve or alleviate the likely prejudice that had been done. I came to the conclusion that any instructions from the bench, no matter how thorough, would not be an appropriate cure for the many inappropriate comments made by defence counsel.
[121] In addition, I was concerned about how any remedial instructions might reflect upon defence’s counsel’s credibility in the eyes of the jury.
[122] The cumulative effect of these inflammatory statements and argument could not be effectively remedied and as a result the jury was discharges.
[123] Defence counsel asked for a mistrial and for a new trial with a new jury. However, this would have delayed trial, yet again, for probably another year or more, which was clearly not in the interest of justice, particularly given the date of this accident.
[124] The matter proceeded as a judge alone trial. As already noted, counsel had agreed that the trial would take three weeks with a jury, which in my experience takes longer than a judge alone trial. Defence counsel took nine days to cross-examine Ms. Doxtater. The trial took six weeks to finish with written closing argument at the end of June 2013. The trial estimate was woefully inadequate. Counsel are reminded of the utmost importance of accurate trial estimates.
Costs:
[125] If the parties are unable to agree on costs, concise written submissions (no longer than five pages) are to be served and filed by August 29th, 2014 for the plaintiffs and by September 19th, 2014 for the defendants. I am particularly interested in offers of settlement exchanged before trial.
“Justice J. N. Morissette”
Justice J. N. Morissette
Released: July 16, 2014
COURT FILE NO.: 43250
DATE: 2014/07/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dawn Doxtator, Jay Taylor Doxtator, and Taylor Martin Doxtator, Valerie Susan Doxtator by their litigation guardian Dawn Doxtator and Glenda Doxtator and Susan Doxtator
Plaintiffs
- and -
Ryan Farish, also known as Ron Farish, Dufferin Construction Company, a division of St. Lawrence Cement Inc. and St. Lawrence Cement Inc. and Dynamic Leasing
Defendants
REASONS FOR JUDGMENT
Morissette J.
Released: July 16, 2014
[^1]: Dr. Culp’s referral note to Dr. Newell dated September 27th, 2001
[^2]: R. v. Mohan, [1994] 2 S.C.R., 9
[^3]: Bank of Montreal v. Citak, [2001] O.J. No. 1096 (S.C.) at paras. 6-7
[^4]: Gubir (Litigation guardian of) v. University Health Network, 2010 ONSC 6394, at para. 19
[^5]: Blackwater v. Plint, 2005 SCC 58, at para.78
[^6]: Athey v. Leonati, [1996] 3 S.C.R. 458, at para. 19
[^7]: Ibid at para. 20
[^8]: Brak v. Walsh, 2008 ONCA 221; Meyer v. Bright (1993), 15 O.R. (3d) 129 (C.A.);
[^9]: O. Reg. 461/96
[^10]: See for example, Guerrero v. Fukuda, [2008] O.J. No. 3799 (SCJ), and Patterson v. Sindall, [1999] O.J. No. 3992 (C.A.).