Court File and Parties
Court File No.: 12-54505 Date: 2016/05/02 Superior Court of Justice - Ontario
Re: Beate Nkunda-Batware, Plaintiff And: Benyuan Zhou, Likang Zhou and Mansoor Bayat-Shahbazi, Defendants
Before: C.T. Hackland J.
Counsel: Patrick Snelling, for the Plaintiff Thomas Ozere and Erin Durant, for the Respondent
Heard: March 2, 2016 (Ottawa)
Endorsement
[1] At the conclusion of a four week trial in this motor vehicle personal injury action, the jury returned a verdict in favour of the plaintiff in the total amount of $418,330, broken down as follows:
- General damages: $15,000
- Loss of income (past): $150,000
- Loss of income (future): $150,000
- Out of pocket: $1,830
- Future Care: $101,500
[2] The defendant brought a “threshold motion” arguing that the plaintiff had failed to establish on the balance of probabilities that her injuries were caused by the motor vehicle accident of January 15, 2011 or that they fell within the statutory exceptions set out in subsections 267.5(3) and (5) of the Insurance Act, R.S.O. 1990, c. I.8. Stated otherwise, the plaintiff must prove that as a result of the accident, she has sustained “a permanent, serious impairment of an important, physical, mental or psychological function”. This motion was argued during the jury deliberation and reserved.
[3] In this case, the 54 year old plaintiff was a front seat passenger in a vehicle which was rear ended in stop and start traffic. The collision was one of moderate impact. The plaintiff was taken to the hospital by ambulance and then released. She complained of back and neck pain. These symptoms never went away and indeed became worse and eventually evolved into a chronic pain situation which continues to have a significant effect on her life.
[4] The evidence reveals that the plaintiff had a pre-accident history of depression, apparently connected with traumatic events in her life. These included her husband’s death at a young age, leaving her to raise and support her two young children, the treatment of her family in Rwanda during the massacres and the murder of her sister in Africa shortly before she was to immigrate to Canada to live with the plaintiff. At the time of the accident, the plaintiff was on a stress leave from her employment as a social worker. Following the accident, she was unable to return to work. Her annual contract was not renewed and it was part of her case in this trial that but for the whiplash injuries suffered in this accident, she would have been able to resume her employment or do other type of similar work.
[5] There was extensive medical evidence in this case. Each side called a psychiatrist and a physiatrist under Rule 53. The Court also heard from the plaintiff’s family doctor and Dr. Firestone, a treating physiatrist on referral from the family doctor. Further, the Court heard from medical professionals who saw the plaintiff in connection with her utilization of statutory accident benefits – a physiatrist, a psychologist and occupational therapists and physiotherapists.
[6] The defendant argues that the plaintiff’s disability arises from depression, which is a condition which was disabling for her prior to the accident. On my interpretation of the evidence, the plaintiff’s tendency to suffer from depression and other psycho-social factors played a significant role in her inability to recover and in her development of chronic pain. This is not an unusual situation and the plaintiff is an example of a category of persons who experience poor recovery from injuries of this sort. Nevertheless, the injury qualifies under the “but for” test for causation and I view the plaintiff as a vulnerable or “thin skull” plaintiff who quite foreseeably would suffer more seriously from a whiplash injury than an average victim of such an accident.
[7] I recognize that a myofascial or soft tissue-chronic pain injury is often more difficult to prove and to fit within paragraphs 4.2(1)(3) of O.Reg. 461/96, which defines the terms “permanent” and 4.2(1)(1) defining “serious” and 4.2(1)(2) defining “important function”. In contrast, burns, orthopedic and neurological injuries and other injuries readily displayed in medical imaging are much less likely to raise the same concerns in terms of seriousness and causation.
[8] The defendants rely heavily on the evidence of their expert physiatrist, Dr. Shanks who testified that in his view, the plaintiff did not suffer whiplash injuries in this accident. He reasoned initially that the collision was too minor to cause such injuries and, in any event, his view was that the headaches and neck pain complained of would have set in gradually in the days following the collision and not immediately as the plaintiff claimed. He found the plaintiff’s pain behaviour to have no physical basis and to be an aspect of what he explained was some psychological process not related to the accident.
[9] Dr. Shanks’s opinion contrasts with the opinion of the plaintiff’s expert physiatrist Dr. Ruggles and two other physiatrists who treated the plaintiff, Dr. Simard, a SAB consultant, and Dr. Firestone, who saw the plaintiff on several visits over a period of a year. The latter three physiatrists all accepted that the plaintiff suffered whiplash injuries in the accident and subsequently developed a chronic pain syndrome which significantly disabled her. On the balance of probabilities, I prefer the evidence of Drs. Ruggles, Firestone and Simard on this point. In other words, I accept the plaintiff’s position that but for the accident, she would not have suffered whiplash injuries leading to a chronic pain syndrome.
[10] There was also conflicting evidence between the two psychiatrists who testified; Dr. Hershberg for the defendant and Dr. Quan for the plaintiff. Dr. Hershberg expressed the opinion that the plaintiff displayed no psychological impairment when he saw her in January of 2014. In particular, she was not clinically depressed at that time. Dr. Quan saw the plaintiff in October of 2014, some nine months later and he very credibly explained that the plaintiff displayed a major depressive disorder (without psychotic symptoms) and a somatic symptom disorder. He recognized that the plaintiff was pre-disposed to depression and that depression and pain disorders can aggravate each other. Dr. Quan was not optimistic about the plaintiff’s chances of improvement, although he did acknowledge there was a chance of improvement and potentially a return to sedentary employment with appropriate psychiatric intervention and proper anti-depression medication. I prefer Dr. Quan’s evidence to that of Dr. Hershberg principally because Dr. Quan recognized the role of depression in the plaintiff’s chronic pain, something that was clearly a major aspect of her ongoing problems.
[11] Ms. Durant argues persuasively that the plaintiff is likely to recover significantly in the event she cooperates with or obtains appropriate medical intervention such as psychiatric treatment and takes appropriate medications. Reference is made to the fact that the plaintiff did experience a significant, if temporary, improvement when she followed Dr. Firestone’s advice to exercise regularly. On my view of the evidence, the plaintiff is, on the balance of probabilities, unlikely to substantially recover her pre-accident level of function, notwithstanding the limited improvement which she has experienced from time to time.
[12] In the Court’s opinion, the plaintiff has established, on the balance of probabilities, that her impairment is permanent in the sense of continuous since the accident and, on the evidence is expected to continue without substantial improvement. The question of whether or not the plaintiff may find her way to appropriate treatment of the sort recommended by Dr. Quan is speculative. I think the evidence shows that the plaintiff is prepared to be compliant with medical advice, although she has not been able to find anyone to competently manage her ongoing care. The evidence satisfies me that the plaintiff’s impairments are serious in the sense of substantially interfering with her ability to continue her previous employment. Even viewing the plaintiff as a homemaker, there appears to be a substantial interference with her ability to perform her ordinary housekeeping and maintenance responsibilities, in the opinion of the occupational therapists who testified. The plaintiff testified about her physical impairments, saying that she cannot sit or stand for long periods of time and that this impacts on her working in her previous employment and on her activities of daily living.
[13] It was the evidence of Dr. Ruggles that the plaintiff did suffer injury directly as a result of the motor vehicle accident, specifically that she suffered from a whiplash associated disorder Type II injury involving her neck area and a sprain/strain type injury involving her upper and lower back areas which has evolved into a chronic myofascial disorder. This diagnosis has a significant psycho-social component arising from the plaintiff’s difficult life experiences and periodic depression. This is a significant disability interfering substantially with her daily functioning. I accept Dr. Ruggles evidence. On the balance of probabilities, her condition is not likely to substantially improve.
[14] In summary, I am of the view that the plaintiff’s impairments resulting from this accident, on the balance of probabilities, satisfy the threshold contained in ss. 267.5(3) and (5) of the Insurance Act and accordingly, the defendants’ motion is dismissed.