$125,000 Non-Pecuniary Damges Awarded for MTBI, Chronic Pain and Depression

After what appears to be a hard fought trial, reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding just over $536,000 in total damages as a result of injuries and loss as a result of a 2001 BC Car Crash.
In today’s case (Zhang v. Law) the Plaintiff was injured when she was a passenger in a vehicle that was T-boned on the driver’s side by another vehicle.  As a result of this collision she suffered various injuries including a Mild Traumatic Brain Injury (MTBI), Chronic Pain and Depression.
The Court heard a lot of evidence about the potential causes for the Plaintiff’s Depression.  The Defendants argued that the Plaintiff’s ongoing problems and depression was not caused by the accident, but rather by a series of unfortunate events that followed including a miscarriage and serious health problems suffered by her husband.
In navigating this evidence Mr. Justice Sewell did a good job discussing the law of ‘causation’ in BC personal injury claims.  In awarding $125,000 for the Plaintiff’s Non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) the Court concluded as follows about the Plaintiff’s injuries, their cause, and their effect on her life:
In summary I find that Ms. Zhang did experience a decline in her cognitive abilities after the accident.  I have already found that this decline was due in part to the MTBI.  I now turn to a consideration of the extent to which depression contribute to these difficulties and to the etiology of that depression…
I conclude that Ms. Zhang continues to suffer depressive symptoms, pain and fatigue.  I find that there has been cognitive impairment caused by the MTBI and the depressive symptoms.  I also find that the chance of any significant improvement in her condition in the future is remote….
In my view this case is governed by the principles enunciated in the Supreme Court of Canada in Athey v. Leonati [1996] 3 SCR 458.  On the issue of causation I have already found that the injuries suffered in the motor vehicle accident were a necessary cause of the depression.  To paraphrase paragraph 41 of Athey, I have found that it was necessary to have both the injuries from the accident and the non-tortious causes for the depression to occur.  As in Athey, I have concluded that it was the combination of the accident, the effect of Mr. Chen’s illness, the loss of the foetus and the termination of the second pregnancy which caused the major and continuing depression.  The depression and continuing depressive symptoms are, in my opinion, an indivisible injury.  The other sources of Ms. Zhang’s difficulties, soft tissue injury and MTBI, are of course entirely attributable to the accident…

The analysis of damage does not end with causation.  It is still necessary to consider whether there was some realistic chance that the depression would have occurred without the motor vehicle accident.  This does not go to the issue of causation but rather to the question of assessing damages which will restore Ms. Zhang to her original position.  If her original position included a realistic chance that she would have suffered a depression in any event, the principles of compensation  require some reduction in the damages awarded to avoid putting her in a better position than she would have been in had she not received compensation for the accident.  It goes without saying that “better” does not mean better in fact but better notionally because she will have received adequate monetary compensation for the damages caused by the defendants’ negligence.

In this case the analysis is further complicated.  Of the three causes of Ms. Zhang’s ongoing problems, pain, MTBI, and depression, only depression could be said to have been a realistic chance in the absence of the accident.  On the evidence before me I find that, although the accident was a necessary cause of the depression, there was never the less a realistic chance that Ms. Zhang would have suffered a major depression in any event.  That realistic chance must be taken into account in assessing damages…

Given my findings as to the extent of Ms. Zhang’s injuries from the accident a substantial award for non-pecuniary damages is appropriate. As I have already indicated, my task is to make an award of damages which, so far as money is able, will restore Ms. Zhang to her original position.  The evidence before me is that before the accident Ms. Zhang was an outgoing and intelligent person with a positive attitude to life.  She was able to combine long hours of work with numerous activities which gave her pleasure.  She enjoyed walking and socializing with friends.  She and her husband went to movies and went ballroom dancing.  She enjoyed music.  Ms. Zhang and Mr. Chen also had fulfilling marital relations.

All of the above activities have been profoundly affected by the injuries Ms. Zhang suffered in the accident.  Ms. Zhang is no longer outgoing but reclusive.  Most of her energy is devoted to working her shift at Safeway.  At the end of each shift the combination of pain and fatigue preclude her from engaging in social activities.  She can no longer tolerate music.   The couple no longer goes to movies or dancing.  There has been a significant decline in marital relations.  While some of these outcomes are undoubtedly related to Ms. Zhang’s ongoing depressive symptoms, they are largely the result of the other injuries suffered in the accident.  Taking into account the impact of these injuries on Ms. Zhang’s life while at the same time recognizing the realistic chance that Ms. Zhang would have had to cope with depression in any event, I award non-pecuniary damages of $125,000.

One other interesting part of this case is the Court’s discussion of the various experts called at trial.  Many expert physicians testified for the Plaintiff and the Defence with substantially differing views of the cause and extent of the Plaintiff’s injuries.  This is often the case in serious ICBC injury claims.

When experts are retained by ICBC in Injury Cases they are permitted to charge for their services. As I have previously posted, ‘independent’ medical examinations can be a lucrative trade for doctors.   When experts are retained to testify at trial, however, their duty is to the court to give fair and impartial evidence, not to advocate for the side that hired them.  Occasionally expert witnesses stray from this duty and give ‘partisan’ evidence.

This duty has been recognized in the common law and now the New BC Supreme Court Rules have been amended to require doctors to certify that they understand this duty, specifically Rule 11-2 of the New Rules states as follows:

Duty of expert witness

(1) In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.

Advice and certification

(2) If an expert is appointed under this Part by one or more parties or by the court, the  expert must, in any report he or she prepares under this Part, certify that he or she

(a) is aware of the duty referred to in subrule (1),

(b) has made the report in conformity with that duty, and

(c) will, if called on to give oral or written testimony, give that testimony in  conformity with that duty.

In today’s case one of the defence doctors, Dr. Tessler, was found to be ‘advocating for the defence’ when testifying.  Specifically the Court said as follows about his evidence at trial:

Dr. Tessler was somewhat dismissive of Ms. Zhang’s symptoms after the accident.  He described them as being the “mildest of the mild”.  I found this comment, as well as certain remarks he made during his evidence, as being indicative of an attitude on his part that Ms. Zhang’s complaints should not be taken too seriously.  I was particularly troubled by a comment made by Dr. Tessler in cross examination to the effect that Ms. Zhang’s symptoms may settle after litigation.  Apart from the fact that Dr. Tessler was not qualified as an expert in psychiatry or psychology, the comment was gratuitous.  On the whole I formed the impression was Dr. Tessler was straying into the area of advocating for the defence point of view in his evidence.   I do not think he was doing so deliberately but he did seem to show a lack of balance and perspective in his evidence.