Tag: PTSD

$200,000 Non-Pecuniary Assessment For Disabling Chronic Depression and PTSD

Reasons for judgement were published this week by the BC Supreme Court, New Westminster Registry, assessing damages for chronic and disabling psychiatric injuries.

In the recent case (Gill v. Aperdoorn) the Plaintiff was injured in a 2015 collision.  The Defendant admitted liability.  The crash resulted in severe depression and PTSD.  The injuries were disabling and the prognosis for further improvement was not optimistic.  In assessing non-pecuniary damages at $200,000 Madam Justice Gropper provided the following reasons:

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$85,000 Non-Pecuniary Assessment for Chronic PTSD and Post Concussive Issues

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic issues following a concussive injury.
In today’s case (Curtiss v. The Corporation of the District of West Vancouver) the Plaintiff fell into an open meter box on a sidewalk owned by the Defendant.  The Defendant denied liability but was found negligent at trial.  The fall resulted in a concussive injury with post concussive difficulties and PTSD.  The Plaintiff was expected to have lingering symptoms into the future.  In assessing non-pecuniary damages at $85,000 Mr. Justice Marchand provided the following reasons:

[92]         As a result of her fall, Ms. Curtiss suffered cuts, scrapes and/or bruising to various parts of her body, including her forehead, nose, upper lip, hands, lower legs and left inner thigh. She also experienced balance issues, dizziness and headaches.   Ms. Curtiss’ cuts, scrapes and bruises all healed within the first one to three months.  Her throbbing headaches lasted the better part of a year, and she still gets headaches when she experiences high levels of stress. She still has occasional balance problems.

[93]         Ms. Curtiss has received psychological counselling and acupuncture treatments since her fall and her condition has improved over time. She has recently returned to daily walking and working in her garden. Nevertheless, her self-reports, and the reports of those who are close to her, clearly establish that Ms. Curtiss is not the same person she was prior to her fall. She has trouble sleeping. She has become anxious and forgetful. She is less confident and self-sufficient. She is no longer able to multi-task. She is less active, occasionally walks with a cane, looks down during walks and gardens far less.

[94]         Two family physicians were involved in Ms. Curtiss’ post-accident care, Drs. Dean Brown and Brian Brodie. Based on her loss of consciousness, memory loss, headaches, dizziness, imbalance, agitation and anxiety, both diagnosed Ms. Curtiss as having suffered a concussion as a result of her fall. In his April 7, 2017 report, Dr. Brown’s prognosis was that Ms. Curtiss’ symptoms would gradually improve with a full resolution within a year or so. In his September 8, 2017 report, Dr. Brodie’s prognosis was that Ms. Curtiss was highly likely to “go on to suffer some symptoms of post traumatic disorder”.

[95]         Ms. Curtiss also submitted a report dated August 25, 2017 prepared by Registered Psychologist, Dr. William Koch. As a result of Ms. Curtiss’ vigilance to danger when walking or driving, excessive startle response, avoidance of conversations about her fall, disturbed sleep, and anxiety-related concentration deficits, Dr. Koch has concluded it is probable that Ms. Curtiss suffers a “subsyndromal” Posttraumatic Stress Disorder (“PTSD”). Dr. Koch noted a number of positive and negative prognostic indicators in Ms. Curtiss’ case. He concluded that Ms. Curtiss’ prognosis for further improvement is “negative” unless she receives further psychological treatment. Dr. Koch recommended a further 20 hours of therapy, which Ms. Curtiss had started by the time of trial.

[96]         In cross-examination, Dr. Koch agreed with a list of further positive prognostic indicators put to him by counsel for the District. Specifically, Dr. Koch agreed that the following were positive prognostic indicators: Ms. Curtiss was open to treatment; Ms. Curtiss had returned to treatment; Ms. Curtiss reported benefitting from treatment; Ms. Curtiss had returned to daily walking; and Ms. Curtiss would soon no longer be involved in litigation. On the last point, Dr. Koch indicated that while litigation stress may soon stop, “other stressors may pop up.”

[97]         Based on all of the evidence, I accept that Ms. Curtiss’ life has been significantly adversely affected by her fall. Though her cuts, scrapes and bruises healed relatively quickly, her post-concussion symptoms and subsyndromal PTSD have persisted. While I have optimism for further improvement, given the length of time her symptoms have persisted, the efforts she has already put into her recovery and her age, I doubt that Ms. Curtiss will ever fully return to her pre-accident condition…

[109]     The cases cited by counsel support an award of non-pecuniary damages within the range suggested by Ms. Curtiss of $75,000 to $90,000. In my view, an award of $85,000 will adequately compensate Ms. Curtiss for the profound impact her fall has had on her physical and emotional wellbeing. Before her fall, Ms. Curtiss was an exceptionally happy, active and productive 74-year-old woman. The accident, however, caused a significant decline in her performance at work, her level of activity, her confidence in herself, and the joy in her life. As I have stated, in my view, though Ms. Curtiss will continue to make improvements, she will not fully return to her pre-accident condition.

Chronic Pain and Depression With Guarded Prognosis Leads to $180,000 Non-Pecuniary Assessment

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic injuries caused by a collision.
In the recent case (Ali v. Padam) the Plaintiff was a passenger in a vehicle struck by a commercial van.  Fault was admitted by the offending motorist.  The crash resulted in chronic physical and psychological injuries with a poor prognosis for substantial recovery.  In assessing non-pecuniary damages at $180,000 Mr. Justice Blok provided the following reasons:

[230]     From the evidence at trial I conclude that in the immediate aftermath of the accident Ms. Ali had pain in her right chest, right wrist, right shoulder and her back.  The other areas resolved reasonably soon but the back pain gradually increased to the point, three months post-accident, of periods of very severe pain.  This pain worsened and she began to have symptoms in her left leg.  She could not walk or stand for any extended length of time.  She soldiered on at work but avoided lifting or bending, and by the end of the work day she was exhausted.

[231]     Ms. Ali’s left leg symptoms became worse.  She was now dragging her leg as she walked.  Her back pain became worse as well.  She had disc decompression surgery, focused on her leg symptoms, in June 2014.  Her left leg symptoms improved although her back pain remained.

[232]     Ms. Ali fell into depression, and was ultimately diagnosed with major depressive disorder.  She has anxiety and nightmares and in that respect has been diagnosed with PTSD.  Her chronic pain and depression combine and aggravate one another.  She does little in the way of activities with her son aside from walking him to and from school.  She is at least somewhat dependent on others for such things as bathing, dressing and going to the toilet.

[233]     As noted earlier, Ms. Ali’s reports of her physical difficulties are, to some extent, at odds with her actual level of functioning, particularly as shown in surveillance video.  I do not suspect she is being untruthful, but instead I conclude that she sees herself as more disabled than she actually is.

[234]     Formerly a cheerful and active person, Ms. Ali has isolated herself from her loved ones.  She is irritable and ill-tempered.  Her relationship with her husband is poor.  She feels a sense of worthlessness and has had thoughts of suicide.  She does, however, have some good days when she is happy.

[235]     In brief, as a result of the accident Ms. Ali has chronic pain, PTSD and major depressive disorder that combine in a debilitating fashion and have severely affected all aspects of her life.  Although there is a consensus amongst the medical professionals that Ms. Ali should have and participate in a comprehensive, multidisciplinary rehabilitation program, those professionals essentially agree that her prognosis for recovery is “guarded” and her prognosis for a substantial recovery is poor.

[237]     I conclude that the plaintiff’s cases, in particular Sebaa and Pololos, were broadly similar to the present.  In both cases non-pecuniary damages of $180,000 were awarded.  Accordingly, I conclude that $180,000 is a proper assessment of non-pecuniary damages in this case.

$110,000 Non-Pecuniary Assessment for Psychological Injuries Following Fatal Collision

Adding to this site’s database of archives caselaw addressing psychological injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages following psychological injuries following a severe motor vehicle collision.
In last week’s case (Rizzotti v. Doe) the Plaintiff was injured in a 2005 head-on collision.   The crash was significant killing the driver of the offending vehicle.  Fault was admitted.  The Plaintiff suffered from psychological injuries following this crash including PTSD, depression and an adjustment disorder.
The Plaintiff’s injuries were aggravated in two subsequent collisions.  All three cases were heard together and damages were assessed globally.  In assessing non-pecuniary damages at $110,000 Mr. Justice Tindale provided the following reasons:

]The plaintiff was clearly involved in a serious head-on collision in 2005. She sustained injuries of a physical nature and a psychological nature. The evidence is clear that the first accident caused the majority of the injuries to the plaintiff while the other two accidents exacerbated her condition.

[76]The medical evidence is clear that the physical injuries were caused by the accidents. The medical evidence is also clear that her psychological injuries were caused by the accidents.

[77]Dr. Anderson diagnosed the plaintiff as having ongoing depressive symptoms consistent with a diagnosis of chronic adjustment disorder with depressed mood. He also diagnosed the plaintiff with having chronic post-traumatic stress disorder in partial remission.

[78]The psychologist, Dr. Kettner, also diagnosed her with having post-traumatic stress disorder. Both doctors Anderson and Kettner had the advantage of personally interviewing the plaintiff.

[79]Dr. Levin agreed with the diagnosis of adjustment disorder with depressed mood however he did not feel that the plaintiff had post-traumatic stress disorder. Dr. Levin only reviewed the medical documentation and did not interview the plaintiff.

[80]I prefer the evidence of Dr. Anderson and Dr. Kettner over that of Dr. Levin as they were able to personally interview the plaintiff.

[81]The evidence in this case clearly indicates that the plaintiff suffered physical injuries which are long-standing and chronic in nature as well as a serious psychological injury.

[82]The defendants have not discharged their onus that the plaintiff failed to mitigate her losses by failing to take medication. The evidence does not disclose on a balance of probabilities that she was prescribed antidepressant medication. Also, with regard to the plaintiff declining to have injections in her hip, there is no evidence that this delayed her recovery. She also gave evidence that she was afraid of injections, which I accept

[83]The appropriate award for non-pecuniary damages is $110,000.00.

Worker Ordered To Pay $561,000 in Damages for Assaulting Former Supervisor

In a compelling illustration of the potential civil consequences following criminal behaviour, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a brain injury following an assault at over $561,000.
In the recent case (Weber v. DeBrouwer) the Plaintiff worked as a supervisor of the Defendant at the Village of Harrison Hot Springs.   The Plaintiff “suspended the defendant several times” and over the course of their overlapping employment “relations between the two worsened“.   In the summer of 2007 the defendant approached the Plaintiff as the Plaintiff was out for a walk and “brutally assaulted” him.
The assault led to various physical injuries including a mild traumatic brain injury and further led to ongoing psychological difficulties.  Global damages of over $561,000 were assessed with non-pecuniary damages assessed at $150,000.  In arriving at this figure Mr. Justice Greyell provided the following reasons:
[72] In this case, Mr. Weber was 49 years old at the time he was assaulted. The assault caused him significant injury and pain and suffering. He suffered facial injuries, including several fractures, dental injuries, bruising, rib and chest injuries, knee and hand injuries, soft tissue injuries to his back and neck, and a mild traumatic brain injury with ongoing cognitive and speech difficulties which took some time to resolve. Mr. Weber remains affected by depression, anxiety, and post traumatic stress disorder. He avoids confrontational situations…

[75] In the present case, Mr. Weber is now 54 years old. A number of his injuries, including his headaches, bruising and soft tissue injuries cleared up after several months. For a considerable time after the assault he was bothered with nightmares and had difficulty sleeping. He is left with a number of problems. He has difficulty with the alignment of his jaw; he still is clumsy and, while greatly improved, he has difficulty finding and pronouncing some words. Mr. Weber remains anxious and fearful of the defendant and avoids going places where the defendant might be. He avoids situations with guests at the motel where any type of conflict could arise, deferring to his wife to handle such matters. Dr. Smith says he will remain permanently impaired by symptoms of anxiety.

[76] Mr. Weber’s injuries and the residual effects of those injuries are significant, however, in my view, each of the cases cited by counsel for Mr. Weber involve circumstances where the injuries and residual effects to the plaintiffs were more significant. After a consideration of the factors outlined above in Stapley, I conclude $150,000 is an appropriate and fair amount to award for non-pecuniary damages.

$125,000 Non-Pecuniary Assessment For Fractured Ankle and Psychological Injuries

Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, assessing damages for physical and psychological injuries resulting from a motor vehicle collision.
In last week’s case (Verge v. Chan) the Plaintiff was injured in a 2006 head-on collision.  She was 34 at the time and lived a ‘farming lifestyle’ which required significant strenuous labour.  The Plaintiff suffered a fractured ankle and psychological injuries both of which lingered to the time of trial and impeded with her physical lifestyle.  In assessing non-pecuniary damages at $125,000 Mr. Justice Greyell provided the following reasons:

Ms. Verge suffered soft tissue injuries to her neck and back, a fractured right talus, bruising to and pain in her chest, and pain in her left shoulder, both knees, and hip.

[7] She continues to suffer from her ankle injury, sleep disturbance, headaches, stress, anxiety, including post-traumatic stress disorder (“PTSD”), depression and chronic pain…

[72] The injury she sustained in the accident of December 6, 2006, has had a significant effect on her physical and mental health.  She is left in virtually constant pain with an unstable ankle such that she can no longer perform the tasks she used to perform on the farm and about the house or enjoy the hobbies and recreational pursuits she used to enjoy pre-accident.  She has developed mental health issues, including PTSD and depression, which will require a significant course of treatment before she can return to work.  As a result of her injuries, the work opportunities which will be available to her are less than pre-accident.  She has lost the farming lifestyle she enjoyed and her family, marital, and social relationships have been impaired…

78] After considering the evidence, the factors enumerated by the Court of Appeal in Stapley, and the authorities cited by counsel, I award non-pecuniary damages in the amount of $125,000.

$75,000 Non-Pecuniary Damage Assessment for Chronic Soft Tissue Injuries and PTSD

Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, assessing damages arising from injuries sustained a motor vehicle collision.
In last week’s case (Smith v. Williams) the Plaintiff was a young veterinarian.  She was involved in a 2009 collision.  The Defendant crossed the centre-line and caused a head-on collision.  The Plaintiff sustained chronic soft tissue injuries and Post Traumatic Stress Disorder (PTSD).  The Plaintiff’s symptoms were on-going at the time of trial.  In assessing non-pecuniary damages at $75,000 Mr. Justice Betton provided the following reasons:

[33] The plaintiff indicated that the accident has left her with a feeling of vulnerability. She is very anxious in a motor vehicle, especially on highways, envisioning accidents unfolding. There are occasional panic attacks. She gets a tingling and pain down her right arm that is aggravated by repetitive motion and particular movements or positions. One of these, I note, was holding her child while breastfeeding. Others relate to her work as a vet.

[34] She spoke of how the physical and psychological injuries have adversely affected her enjoyment of her wedding and her regret for how she reacted to the stresses associated with the wedding toward her husband. For her part, the plaintiff indicates that she simply battles through her restrictions. She says that the more physically demanding her day, the greater the consequences in symptoms…

[43] This plaintiff is a young professional, early in her career. She has historically been a high-achiever, endowed with intelligence, motivation and physical ability. The motor vehicle collision came as she was planning her wedding and the purchase of a business. Her wedding, as described by her, was not the enjoyable experience that she, as a young woman, had dreamed of.

[44] The purchase of the business completed, and she has been able to live up to the work demands of that practice, facilitated in part by the fact that it is less demanding than work she did prior to acquiring the practice. In addition, her absence for maternity leave coincided with her rehabilitation. She has actively engaged in rehabilitation during all of the significant developments in her life, including being a new mother. The Post Traumatic Stress Disorder symptoms linger and also influence the enjoyment of an activity which is part of everyday life, that is, driving…

[53] Taking what one can from those authorities and applying the general principles, as referenced in Stapley, it is my conclusion that an appropriate award for general damages is $75,000.

$90,000 Non-Pecuniary Damage Assessment for Headaches and PTSD


Reasons for judgement were released last month by the BC Supreme Court, Duncan Registry, assessing damages for PTSD and chronic headaches following a motor vehicle collision.
In last week’s case the Plaintiff was involved in a 2005 collision.  Fault for the crash was admitted focusing the trial on the value of the claim.   The Plaintiff suffered from some pre-existing difficulties including depression and anxiety.  The collision caused new injuries including pain, headaches and PTSD.  Mr. Justice Rogers assessed non-pecuniary damages of $90,000 and then made a modest reduction to take the pre-existing condition into account.  In assessing damages the Court provided the following reasons:
[32] Turning to the plaintiff’s injuries, the overall weight of the evidence paints a clear picture: before the traffic accident the plaintiff had some depression and she was sometimes anxious. The breakdown of her marriage and the emotional upheaval and fiscal uncertainty that flowed from that breakdown fuelled her depression and anxiety. Both conditions were sufficiently active as to prompt her to obtain medical attention. The plaintiff’s depression and anxiety were, therefore, present and active maladies before the accident. The plaintiff did not, however, suffer from post-traumatic stress disorder or from pain in her neck, jaw and face, and the plaintiff did not suffer from migraine or neuralgic headaches. The plaintiff was not fatigued and her ability to function in everyday life was not limited in any significant way. After the accident the plaintiff does now, and will in the future continue to, suffer from myofascial pain in her face and jaw. She does, and will continue to, suffer from periodic migraine and neuralgic headaches. Her neck will be sore after physical activity. She will be fatigued and socially withdrawn. These changes in her life have deepened her depression and made her more susceptible to anxiety…




[34] That said, the plaintiff’s pain, headaches and post-traumatic stress disorder were not features of her life before the accident and there was no measurable risk that, absent the accident, they would have become features of her life. Likewise, the plaintiff’s difficulties with memory and concentration were not a problem before the accident. Although the plaintiff argued that these latter problems stemmed from a minor traumatic brain injury, I find that that they are, in fact, a product of the effect on her mentation of pain, depression and anxiety.

[35] On an overall assessment of the whole body of the evidence at trial, I am satisfied that the plaintiff’s claim for non-pecuniary damages should be reduced by a relatively modest amount in order to accurately reflect her pre-existing emotional condition. I fix that reduction at 10 percent of the total.

[36] I find that were it not for her pre-existing condition, I would have fixed the plaintiff’s non-pecuniary damages at $90,000. I find that after subtracting the pre-existing condition, the plaintiff is entitled to judgment for general damages of $81,000.





This judgement is also worth reviewing for the Court’s discussion of principle of adverse inference.  The Plaintiff did not call her family physician in support of her claim.  ICBC argued that the Court should draw an adverse inference as a result.  Mr. Justice Rogers refused to do so and in dismissing ICBC’s argument the Court provided the following comments:
[31] I also accept the opinions of the plaintiff’s medical treaters. I am not worried about the lack of evidence from the plaintiff’s family physician. It was he who referred the plaintiff to specialists, and it was those specialists who diagnosed and treated the plaintiff’s accident-caused symptoms. The family physician’s evidence would, in my view, likely have consisted of little more than confirmation that the specialists were engaged and progress was made under their care. As such, I am confident that the family physician’s evidence would have added little new into the mix.

PTSD Claim By Accident Witness Dismissed as "Too Remote"


If a witness to a BC motor vehicle collision suffers psychological injuries as a result of what they see they can claim damages.  There are, however, restrictions on when these claims can succeed.  Reasons for judgement were released today addressing this area of law.
In today’s case (Deros v. McCauley) the Plaintiff witnessed a collision caused by an “inebriated” driver in 2001.  At the time the Plaintiff was working on Highway 97 near Bear Lake, BC.  The Plaintiff was installing rumble strips on the side of the highway.  The Plaintiff was operating a sweeper and his friend, (Mr. Lance) was operating a grinder nearby.  The Defendant lost control of a pickup truck and collided with the grinder.  The Plaintiff witnessed the crash and was concerned for his friend.  Fortunately Mr. Lance “was not seriously injured“.
The Plaintiff claimed the incident caused PTSD and sued for damages.  The Insurance company for the Defendant argued that even if the Plaintiff suffered from PTSD this injury was ‘too remote‘ and therefore not compensable.  Madam Justice Gerow agreed and dismissed the lawsuit.  In doing so the Court provided the following useful reasons addressing the restricted circumstances when a witness to a crash can successfully sue for psychological damages:
[17]         In order to show that the damage suffered is not too remote to be viewed as legally caused by Mr. McCauley’s negligence, Mr. Deros must show that it was foreseeable that a person of ordinary fortitude would suffer a mental injury from witnessing the accident. He has failed to do so…

[23]         The cases, to which I was referred, where damages for nervous shock have been awarded to witnesses of accidents who were not physically involved in the accidents, involve accidents or events which are more shocking than the accident in this case. All the cases involved accidents in which someone has died or been seriously injured: James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Arnold v. Cartwright Estate, 2007 BCSC 1602; Easton v. Ramadanovic Estate (1988), 27 B.C.L.R. (2d) 45; Stegemann v. Pasemko, 2007 BCSC 1062; James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Kwok v. British Columbia Ferry Corp. (1987), 20 B.C.L.R. (2d) 318 (S.C.).

[24]         As set out in Devji v. District of Burnaby, 1999 BCCA 599 at para. 75, the courts have been careful to limit the circumstances in which injuries for nervous shock are awarded:

The law in this province, as formulated by Rhodes, requires that the plaintiffs, in order to succeed, must experience something more than the surprise and other emotional responses that naturally follow from learning of the death of a friend or relative. Instead, there must be something more that separates actionable responses from the understandable grief, sorrow and loss that ordinarily follow the receipt of such information. In Rhodes, Taylor and Wood JJ.A. described the requisite experience as alarming and startling (and therefore sudden and unexpected), horrifying, shocking and frightening, and Southin J.A. referred to a “fright, terror or horror”.

[25]         In this case, Mr. Deros witnessed a collision that involved no serious injuries. Even if I accept Mr. Deros’ evidence at trial that he initially thought a rod had skewered Mr. Lance, he knew within minutes this did not occur and Mr. Lance had not suffered serious injury….

[29]         There is no evidence that a person of ordinary fortitude would have suffered nervous shock injury or mental illness as a result of witnessing this accident. The experts testified about Mr. Deros’ particular reaction to the accident, but not that a person of ordinary fortitude would have suffered mental injury.

[30]         Mr. Deros does not argue that a person of ordinary fortitude would suffer mental injury from witnessing this accident. Rather, Mr. Deros argues that the evidence from the experts establishes that he was more prone to suffer from PTSD than an ordinary person was from witnessing this accident. As stated earlier, Mr. Deros argues that the evidence supports a finding he suffered mental or psychological injury from witnessing this accident because he was more prone to injury as a result of his pre-existing condition, i.e. he was a thin skull, and was not a person of ordinary fortitude.

[31]         Having failed to establish that a person of ordinary fortitude would suffer a mental injury from witnessing this accident, it follows that Mr. Deros’ claim must fail.

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ERIK
MAGRAKEN

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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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