IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Mastromonaco v. Moraal, |
| 2015 BCSC 228 |
Date: 20150218
Docket: M102798
Registry:
Vancouver
Between:
Rosanna
Mastromonaco
Plaintiff
And
Michael Alberto
Moraal and
Elsie Louise Vose
Defendants
And
Insurance
Corporation of British Columbia
Third
Party
Before:
The Honourable Mr. Justice Harvey
Reasons for Judgment
Counsel for Plaintiff: | E. Good |
Counsel for Third Party: | L. Bell |
Place and Date of Trial: | Vancouver, B.C. June 30, July 2-4; |
Place and Date of Judgment: | Vancouver, B.C. February 18, 2015 |
Overview
[1]
In the late afternoon of March 20, 2009, the plaintiff, Roseanna
Mastromonaco (the Plaintiff), had little on her mind beyond safely crossing
the controlled intersection of 152nd Street and 18th
Avenue in Surrey, British Columbia.
[2]
While standing on the northeast corner of that intersection awaiting the
pedestrian signal to allow her to cross the street, the Plaintiff was struck by
a vehicle driven by the defendant, Michael Moraal (the Defendant).
[3]
According to the lone eye witness, Dan Olma, the Defendant, while traveling
westbound on 152nd Street, entered the intersection at high speed
against a red light and careened off of the vehicle driven by the co-defendant,
Elsie Vose (the Co-Defendant), who was lawfully in the intersection when
struck by the Moraal vehicle. As a result of the collision between the two
defendants vehicles, the direction of travel of the Moraal vehicle was
diverted, causing it to jump the sidewalk and strike the Plaintiff.
[4]
The Defendant has been properly served with these proceedings but has
not participated in the trial.
[5]
The third-party, Insurance Corporation of British Columbia (the Third
Party), has admitted liability on the Defendants behalf. The action against the
Co-Defendant was discontinued at the trials commencement, leaving the extent of
the Plaintiffs injury and its impact on her earning capacity as the only issue
in this proceeding.
[6]
According to the Plaintiff, in addition to soft tissue injuries which
ultimately resolved themselves, she sustained a complicated mild traumatic
brain injury (MTBI), the effects of which leave her diminished in functional
capacity and resulted in a three-year leave of absence from her employer, the
Langley school board. She claims her future is uncertain.
[7]
As at the date of trial, the Plaintiff remained on leave from the school
board. Since taking leave, she has engaged in a variety of part-time endeavors,
including substitute teaching a Montessori school, tutoring and brief stint at
entertainment management. None of those endeavors has produced a meaningful
income for her.
[8]
The Plaintiff seeks damages for non-pecuniary loss, past loss of income,
special damages, loss of future earning capacity and costs of future care.
[9]
The Third Party, while acknowledging the severity of the impact resulted
in a MTBI, says that the injury did not cause permanent or even long-term loss
of function, and suggests that the Plaintiffs time off work, other than a
brief period immediately following the accident, is attributable to psychological
factors which would have resulted in the Plaintiffs current employment
situation even in the absence of the accident.
[10]
In addition to three medical opinions supporting her contention of a
complicated MTBI, the Plaintiff presented evidence from work associates and
friends familiar with her both before and after the accident who testified as to
changes in the Plaintiffs level of function and mood. The Plaintiff alleges
that she is much less capable than before the accident and that such is
apparent to those who have observed her before and after the fact.
[11]
The Third Party proffered medical evidence providing a different
explanation for the Plaintiffs present malaise and inability to teach in the B.C.
school system.
[12]
There is no suggestion that the Plaintiff has exaggerated or embellished
her symptoms.
Issues
[13]
The major issue which informs the assessment under the varying heads of
damage advanced by the Plaintiff is whether the Plaintiff sustained a
complicated, as opposed to uncomplicated, MTBI as a consequence of the Defendants
negligence, thus resulting in her reduced employment since 2010. There is no
issue that she sustained one or the other.
[14]
If the Plaintiff sustained a complicated MTBI leading, ultimately, to
her loss of employment as a schoolteacher, the quantum of damages includes
significant past and future economic loss, together with costs for future
medical care. If, as suggested by the Third Party, her injury was transitory,
then her three year leave of absence and ongoing lack of financial success stem
from psychological issues which arose independently of the accident and would
have ultimately caused the Plaintiff to be in her current situation regardless
of its occurrence.
[15]
If, as alleged, the Plaintiff suffered a complicated MTBI leading to her
current underemployment, there remains the question as to what effect, if any;
other psychological factors might have had on the Plaintiffs employment,
notwithstanding the accident.
The Plaintiffs Pre-accident Condition
[16]
The Plaintiff is 49 years old, of Italian descent and a member of the
Bahai faith. She resides with her mother and father at their home in Surrey, B.C.
Although the Plaintiff underwent counseling during various periods of time in
her life prior to the accident, her pre-accident physical health was
unremarkable.
[17]
The Plaintiff graduated from Simon Fraser University with a Bachelor of
Arts degree in 1988. Following graduation, she traveled and worked as a live-in
nanny in Paris. In 1990 or 1991, she returned to B.C. and obtained a bachelors
degree in education. She obtained her teachers certificate in September 1992.
[18]
Thereafter, the Plaintiff trained in Montessori teaching methods with
the goal of instructing pre-schoolers to six-year-olds at an accredited
Montessori training centre.
[19]
In September 1993, following her accreditation as a Montessori teacher, she
began teaching as a pre-school teacher at Cornerstone Montessori pre-school in
Surrey. From 1993 until 1997, she taught at a variety of Montessori schools
teaching grades one, two, and three.
[20]
Ms. Bamendine-Jones, the headmistress of Cornerstone, recalled the Plaintiff
as a co-operative and collaborative faculty member who was liked by others. Ms. Bamendine-Jones
could not recall any difficulties arising within the two year period the Plaintiff
taught at Cornerstone.
[21]
In or about 1996, the Plaintiff was introduced to and became a follower
of the Bahai faith. A principal tenet of Bahai is service to others. Neither
of her parents are followers.
[22]
In September 1997, the Plaintiff traveled to Zambia where she became
involved with both teaching and educational development. While in Zambia, she undertook
a role equivalent to that of headmistress of a girls school: the Bonani School
for Girls. She played an integral role in the development of programs and
resources for the school while working there. She remained in Zambia until
2000.
[23]
In 2000, the Plaintiff returned to B.C. and did some on-demand teaching
at a Montessori school in Delta. In 2001, she returned to Zambia where she continued
to develop programs and materials for a junior youth program.
[24]
When her involvement in Zambia ended, she took employment as the
administrative assistant at Bahai World Centre in Haifa, Israel. She stayed there
until July 2006. Thereafter, she traveled for several months, returning to B.C.
in October.
[25]
The Plaintiff relished her time in Africa and derived great satisfaction
from her accomplishments and contributions while there. It is apparent from
self-report and from the notes of the counselor she engaged prior to the
accident that she felt her work abroad was more rewarding spiritually than any
she had done before.
[26]
The Plaintiffs remuneration during all of her international employment was
a modest honorarium plus room and board.
[27]
Prior to her final return to Canada, the Plaintiff sought various other
positions in Africa similar to that which she had in Zambia. Seemingly, none
were available and she returned, with apparent reluctance, to Canada.
[28]
Once back in B.C., the Plaintiff resumed living with her parents in
their Surrey home and began working a variety of jobs while taking the
necessary refresher courses to renew her teaching credentials so as to regain
her B.C. teaching certificate.
[29]
When she obtained the necessary certificate, she began teaching as a
substitute teacher.
[30]
In January 2008, the Plaintiff obtained a 60% teaching position at
Uplands Montessori School in the Langley school district. In the late spring of
2008, the Plaintiff learned she had been assigned a full-time class at Uplands
for the following academic school year, commencing in September 2008. The Plaintiff
was teaching grades one, two and three there until the date of the accident on
March 20, 2009.
The Plaintiff provided testimony from a number of witnesses
who knew her; some prior to the accident, some who knew her both prior to and
after, and some who met her following the accident. The collective import of
their evidence was to highlight subtle changes in the Plaintiffs presentation following
the March 2009 accident.
[31]
These witnesses included Kuldip Randhawa, a schoolmate from SFU; the Plaintiffs
co-workers while working at the Bonani School for Girls in Zambia; Farrah
Marasco, owner of a private Montessori school and member of the Bahai faith; Alana
Bergstrome, a friend of the Plaintiff; Merrill Osiers, a teacher at Uplands
Elementary who met the Plaintiff shortly before the accident; and Mike
Etheridge, the principle of James Hill elementary, the last school at which the
Plaintiff taught. In addition, Lisa Sitnick and Kristen Norby, both of whom
worked with Plaintiff at Peterson Road Elementary, testified as to their
observations of the Plaintiffs mood and teaching skills. The Plaintiffs
father, Modesto Mastromonaco, also testified and identified perceived changes
in her mood, memory, and manner of conversation since the accident.
[32]
The general theme of the testimony of those witnesses who knew the Plaintiff
prior to her accident was that prior to March 2009, the Plaintiff, although
quiet and socially introverted, was energetic, maintained a positive outlook on
life and possessed strong organizational skills evident throughout both the
periods she was in B.C. and in Zambia. She was capable of working independently
and exhibited no outward signs of anxiety or depression to those who knew her
pre-accident.
[33]
Specifically, the Plaintiffs co-workers in Zambia testified that she
undertook significant responsibility, worked independently and demonstrated
strong organizational skills while working at the Bonani School for Girls. Karen
Pollock, who worked alongside the Plaintiff, was both laudatory of the
Plaintiffs organizational skills in crafting and implementing the curriculum
at the girls school. She depicted the Plaintiff as hard-working, decisive and
energetic, but somewhat shy and reclusive on a personal level.
[34]
Michael Redmond, her supervisor at the Bonani school, graded her as 5
out of 5 as a teacher, and described her as highly motivated, intelligent,
focused, capable of independent work, self-reliant and calm. He noted the difficult
conditions under which all staff worked, and noted the Plaintiff thrived in
conditions that others found challenging. He said she had a good memory.
[35]
Another witness, Ms. Marasco, knew the Plaintiff before the
accident. She testified that since the accident, the Plaintiff is easily
frustrated and not as capable of coping with things. In describing her mood,
the witness said the Plaintiff was easy-going and happy prior to the accident.
After the accident, she was easily frustrated. She noticed that the Plaintiffs
temper came to the fore more readily and more frequently.
[36]
According to Ms. Marasco, the Plaintiff became easily caught up in
detail and lost focus on the bigger picture. This caused frustration both with
the Plaintiff and others in dealing with her.
[37]
Nonetheless, Ms. Marasco hired the Plaintiff following the accident
as a substitute for the Montessori school she operated. Generally, the Plaintiffs
role was as an assistant to the main teacher. From that work stemmed the
tutoring work for individual students, which now seems to be the focus of the Plaintiffs
future vocational plans.
[38]
Another witness, Alana Bergstrome, a friend to the Plaintiff both before
and after the accident, described her pre-and post-accident condition.
Ms. Bergstrome came to know the Plaintiff through their common involvement
in the Bahai community in Surrey. Ms. Bergstrome knew the Plaintiff from
a year or so before the accident. Together, they were members of the Bahai
communitys Spiritual Assembly. There are no elected positions on the Assembly;
rather, there are merely appointments made by the Bahai community at large. Ms. Bergstrome
held the position of chairperson of the Assembly at various times from 2009
until present, and the Plaintiff was, alternatively, vice chairperson
and secretary of the Assembly.
[39]
Ms. Bergstrome described the decline in the Plaintiffs performance
of her duties following the accident. She described the Plaintiff as
demonstrating a somewhat diminished capacity after the accident and now
presented as morose and sombre. At times, the Plaintiff was late with
deadlines, meetings or agendas. The Plaintiff was digressive in conversation,
less articulate and had difficulty staying on point.
[40]
Meryl Osers, a teacher at Uplands, met the Plaintiff in February 2008, a
year before the accident, when the Plaintiff was substituting at Uplands
Elementary. The Plaintiff began teaching there full-time as a kindergarten
teacher in September of 2008. Ms. Oser described the Plaintiff as
cheerful, enthusiastic and willing during her initial time at Uplands. She
described the Plaintiffs teaching environment as rich, although Ms. Osers
acknowledged that Montessori methods prescribe a classroom with less visual
noise such as wall adornments. She also said the Plaintiffs classroom was
calm.
[41]
The Plaintiffs father also testified that, following the accident,
there were gradual changes in the Plaintiffs abilities to organize, follow
through on assigned tasks and diminished confidence. He said she lost her drive
and is no longer upbeat. He thought the transformation was a gradual one
following the accident. The changes occurred over time. There was no obvious
bright line over which she crossed in the days or weeks following the accident.
[42]
I find that the totality of the oral evidence regarding the Plaintiffs
capability, capacity and mood prior to the accident depict a reserved, albeit
quietly confident, capable young woman with focus on service to those less
fortunate than herself. I also accept her colleagues testimony that she was an
enthusiastic and effective teacher.
[43]
These findings concerning the Plaintiffs pre-accident achievements are
in keeping with her superior intelligence. As was later determined by Dr. Viljoen,
a neuro-psychologist retained on behalf of the Plaintiff, the Plaintiffs IQ
ranks in the high-superior range. Indeed, in the 1990s, the Plaintiff
corresponded with Mensa and was seemingly approved for membership.
Psychological Counselling Prior to the Accident
[44]
The Plaintiff was no stranger to counseling prior to the occurrence of
the accident. However, in my view, I find that her attendances on counselors
dating back before her departure for Zambia offer no basis for explaining her
current situation.
[45]
However, upon her return to Canada in 2007, it is apparent from the
entries in the clinical records of those psychologist and/or counselors with
whom she visited, that the Plaintiff was experiencing difficulties re-adjusting
to Canadian life.
[46]
Based on these counselling records and the Plaintiffs cross-examination,
I conclude that the Plaintiffs hope was to carry on working in a Third World
country, specifically Africa, assisting others by doing similar work to that
which she performed in Zambia. In 2007, when no such opportunity presented
itself, she returned to Canada needing to reinstate her teaching credentials so
as to work, ideally, in a Montessori school teaching young students.
[47]
She continued, after arriving back in Canada, to pursue opportunities
which might result in a similar posting to that which she experienced in
Zambia.
[48]
The Plaintiffs experiences in Africa allowed her to provide service to
others in keeping with her faith. She seemingly obtained no such satisfaction
through her involvement with the B.C. school system. Some of her recorded
remarks in the clinical records of the counsellors/psychologist, both prior to
and after the accident, make clear the Plaintiffs conflicted feelings towards
the B.C. educational system.
[49]
Upon her return to Canada, the Plaintiff returned to the home of her
parents. With the exception of her time abroad, it is unclear whether the Plaintiff
has ever lived independently in her own residence. In the 1990s, the Plaintiff
apparently sought counseling with respect to relationship issues with her mother.
[50]
The Plaintiff underwent counseling again in 2003, but the focus of these
sessions is unknown.
[51]
The Plaintiff began counselling sessions with Mona El-Masry in January,
2007, approximately two months following her return to Canada. On the
counseling intake form, the stated reason for counseling was the Plaintiffs difficulties
adapting and re-integrating back into Canadian society. The intake form notes
make sure you do not mention counseling when you leave message, which
informed me that the Plaintiff was not anxious to let her parents know she was
undergoing counseling.
[52]
The Plaintiff, according to the counsellors notes, identified a number
of issues she wanted to address, including issues with her parents over her
conversion to the Bahai faith; a sense of not fitting into Canadian society;
and her feeling she was different from the rest of her family.
[53]
When discharged from the counselors care in February, 2008, the
counselor noted that the Plaintiffs depression had decreased. The records
also noted that the therapist, Ms. El-Masry, was leaving her position and was
seemingly unavailable for further sessions.
[54]
By February 2008, the Plaintiff had regained her teachers certificate
and was actively pursuing full-time employment while substitute teaching.
[55]
From February 2008 until May 2009, the Plaintiff did not receive further
counseling, and was seemingly integrating back into Canadian society.
[56]
Nonetheless, the Plaintiffs return to teaching brought on additional
stressors. In June 2008, the Plaintiff received a letter of direction from
the Langley school board relating to an incident which occurred in her
classroom. The letter of direction arose from an investigation into an
allegation that the Plaintiff had physically contacted a student contrary to
school board policy. The Plaintiff did not dispute that such had occurred, but
was vague as to her recollection of the specifics of the incident. She agreed
that she had been put in charge of a class containing a very difficult child
with whom issues arose and she had apparent difficulties coping with the
behaviour.
The Accident
[57]
Dan Olma observed the accident unfold as he traveled behind the Defendant
immediately prior to its occurrence.
[58]
According to Mr. Olma, the Defendant was traveling at high speed
when he entered the intersection while the light was red in his lane of travel.
The Defendant careened off of the Co-Defendants jeep, jumped the curb and
headed directly towards the two women standing on the northeast corner of the
intersection. One of them got out of the way. The other, the Plaintiff, was hit
by the Defendants car in the lower body, causing her to lurch forward. Her
head and shoulder hit the windshield, causing her to catapult upwards. Mr. Olma
estimated she was as high as 15 feet in the air and traveled a distance of
approximately 20 feet, landing in a bush outside of the Pantry restaurant near
the intersections corner. He immediately stopped his car and called 9-1-1.
[59]
The Plaintiff, not surprisingly, has only a vague recollection of the
mechanics of the accident. She recalled seeing the Defendants vehicle coming
towards her at a high speed. She thought she was going to die. She could not
recall being struck by his vehicle. Her next recollection is of people
surrounding her and inquiring as to her well-being.
[60]
The Plaintiff could not say whether she lost consciousness or, if so,
for how long. She was placed in an ambulance but recalled little of the process
of how she got into it and what happened afterwards. She knew she was taken to Peace
Arch hospital and that there were questions asked of her in the ambulance. She
recalls telling someone, presumably an ambulance attendant that she was in pain
and was told to lie down.
[61]
Her memory of time spent in hospital is disjointed. She recalls the
police attending, test being done and eventually asking to use the telephone to
speak to a friend about a faith-based event which she was in charge of that
night.
[62]
She later recalled calling her mother, and eventually her parents picked
her up at the hospital and returned with her to the Surrey residence. She could
not recall speaking with her parents during the drive home.
[63]
The Plaintiff was able to offer a sketchy account of the events which
took place over the weekend following the accident.
The Plaintiffs Post-accident Complaints and Treatment
[64]
The Plaintiffs physical injuries, apart from those to her head, were
surprisingly minor given the severity of the impact of the accident. She had
chest pain, pain in her left elbow, bruising about her body, in particular her
shins, back pain and problems with her neck, including a clicking noise when
she turned her head.
[65]
The accident occurred on a Friday. On the following Monday, the Plaintiff
attended school, but was in pain and exhausted by the days end. She informed
her colleagues and superiors of the circumstances of the accident and absented
herself from work until April 9, 2009. Thereafter, she taught her class at
Uplands Elementary without interruption until the end of the academic school
year, June 2009.
[66]
Over time, the Plaintiff said she became less sure of herself, unable to
follow through with tasks, forgetful, irritable and her general mood darkened.
She testified that she was easily overwhelmed and has had lots of ups and
downs since the accident.
[67]
The Plaintiff offered no history of headaches either prior to or
following the accident.
[68]
The Plaintiff attended her family physician, Dr. Fiona OBrien, shortly
following the accident. She reported loss of consciousness following the
accident, but was uncertain as to the duration. Her complaints were mostly
physical, consisting of bruising to her shins, elbow, chest wall and neck. Dr. OBrien
noted that the Plaintiff denied any neurological or vision deficits, although
it is unclear what questions were asked and what answers were offered.
[69]
Dr. OBrien prescribed physiotherapy and the Plaintiff underwent eight
to ten visits. She noticed improvement to her soft tissue complaints. Her
bruising dissipated and she felt she was returning to her former physical self.
After completing physiotherapy, she engaged a personal trainer to assist her
with conditioning. She thought this treatment lasted for several years
post-accident.
[70]
The Plaintiff remained off work for approximately three weeks. On her
return to work, she testified of poor memory and diminished motivation; albeit
she apparently sought no treatment for those symptoms.
[71]
Apart from physiotherapy and conditioning under the tutelage of a
trainer, little else was mentioned of the Plaintiffs soft tissue injuries. All
have now healed and none cause the Plaintiff any continuing disability or pain.
[72]
Since recovery from her physical symptoms, her complaints centre on her
mood change and inability to cope as a teacher in the B.C. education system. Her
inability to cope embraces a wide constellation of concerns, including lack
of motivation, memory issues, concentration issues, mood issues resulting in
irritability and general fatigue.
[73]
The Plaintiff says that the combined effect of these symptoms led her to,
firstly, reduce her hours in 2010 while at Peterson Road Elementary, and then,
in 2011, take a leave of absence from her position with the Langley school board,
which has continued to this trial.
[74]
According to the Plaintiff, stress exacerbated her symptoms. She is
easily overwhelmed when under stress, is less organized and feels overwhelmed
by tasks she once mastered. She begins projects, but does not finish them. In
addition, she finds personal interaction more difficult, has less patience with
people and is socially withdrawn. Overall, she states both her mood and
motivation were diminished following the accident.
[75]
The Plaintiff acknowledged that her return to the B.C. school system
following her re-accreditation was stressful. The Plaintiff found it less
stressful when teaching within the confines of a Montessori classroom, as was
the case at Uplands Elementary, and overwhelming when teaching in a
non-Montessori school, such as Peterson Road Elementary, where she started the
year late without the benefit of time for classroom preparation.
[76]
Her stress was heightened in the spring of 2011 when it became apparent
that she was not guaranteed a position at James Hill Elementary, another
non-Montessori school. She feared her experience at Peterson Road might be
repeated.
[77]
Some two months following the accident, the Plaintiff resumed counseling
where she reported some, if not all, of her current complaints. As noted above,
counselling was not new to the Plaintiff. I will outline the Plaintiffs
counselling history following the accident in more detail below.
[78]
The Third Party notes that the accident itself, while admittedly severe,
did not result in an admission to hospital. The Plaintiff was discharged from
hospital the night of the incident after describing her complaints to medical
staff. When she reported next to her general practitioner on March 28, 2009,
the report was primarily physical symptoms involving her shins, left elbow,
chest wall and neck. The Plaintiff denied any neurological or vision deficits
to her attending physician. She was prescribed pain medication and referred to
physiotherapy.
[79]
She returned to the emergency department on March 25, 2009 complaining
of neck pain and stiffness but referenced no other complaints.
[80]
The Plaintiff worked the Monday following the accident but stated she felt
physically exhausted and was in pain. She was off work until April 14, 2009.
Previously she had seen her general practitioner who cleared her to return to
work. She was still experiencing pain in her cervical spine, but her general
practitioner, Dr. OBrien, noted a good range of movement and that further
memory seems intact and concentration is good. She recorded the Plaintiff had
amnesia of the actual event.
[81]
The Plaintiff had ongoing visits to her general practitioner focusing on
central low back pain as well as restrictions and movement. Her shin and elbow
pain resolved uneventfully. She continued with physiotherapy throughout the
spring of 2009.
[82]
With the exception of physiotherapy, the engagement of a personal
trainer and occasional attendances upon Dr. OBrien, no further treatment
was sought by the Plaintiff, nor were any ongoing complaints communicated.
[83]
All of the experts who produced reports on behalf of the Plaintiff were
seen for assessment purposes, not for treatment.
Post-accident Employment
[84]
After her return to work in April 2009, the Plaintiff carried on
teaching without interruption until the end of the school year in June.
[85]
Ms. Osers became aware of the accident and described the Plaintiff
in different terms during the last part of the Plaintiffs tenure at Uplands in
the spring/summer of 2009. Ms. Osers observed the Plaintiff was more
stressed and agitated upon her return in April 2009 and seemed isolated from
her peers. She did not attend the staff room much. She said the Plaintiff
seemed less sure of herself and it was hard to know how well she was coping.
[86]
The Plaintiff anticipated a return to Uplands in September 2009. She was
invited back, but early in the school term, during the first week, the Langley school
board determined the enrollment was insufficient at Uplands and she was
surplused. In school board vernacular, this meant there was no position for
her at Uplands.
[87]
This determination had the effect of leaving the Plaintiff on staff at
the Langley school board, but without a position. She continued to receive her
salary but was required, as part of the collective agreement, to accept work offered
to her within the Langley school district.
[88]
The Plaintiff was allowed to turn down two offered postings but had to
accept a third offering or lose her position within the Langley school board. In
late September 2009, she accepted a position teaching at Peterson Road
Elementary, a non-Montessori school.
[89]
This position resulted in several challenges for the Plaintiff. She was
entering the school three weeks after the term had begun and was teaching in a
non-Montessori classroom without any ability to prepare over the course of the
preceding summer.
[90]
Lisa Sitnik, a behavioral resource teacher with the Langley school
board, was assigned to the Plaintiffs classroom with the object of providing
effective behavioral support to one of the children who had autism. These
behavioural difficulties further challenged the Plaintiffs coping skills.
[91]
Ms. Sitnik recalls the Plaintiff being overwhelmed by the student.
She testified that the Plaintiff seemed incapable of managing a routine or
implementing any of the suggestions Ms. Sitnik provided to assist with the
boy. Instead, she simply wanted to talk about how bad the situation was in the
classroom.
[92]
In meetings designed to develop a plan for the boy, the Plaintiff would
need to write things down when suggestions were provided. On occasion, she lost
her notes, with the result that the plan would have to be explained to her once
again.
[93]
Ms. Sitnik described the Plaintiffs demeanor as sad and testified
that she would tear up on occasion without any apparent reason. The Plaintiff
seemed overwhelmed by her emotions.
[94]
In Ms. Sitniks view, the Plaintiffs classroom was disorganized
and devoid of furniture or items on the walls. The Plaintiff was incapable of
meeting deadlines or following through with plans, such that Ms. Sitnik
eventually took it upon herself to follow through with things discussed in
their meetings.
[95]
With that limited information, it is not surprising that the Plaintiffs
year at Peterson Road did not go well. By March 2010, the Plaintiff, by reason
of anxiety and stress, reduced her hours to 40%. Despite the periodic
assistance of Ms. Sitnick, the Plaintiff seemed incapable of dealing with
the special needs student with behavioural issues.
[96]
Kristen Nordy, a grade five teacher at Peterson Road, was in the
classroom adjoining the Plaintiffs. She observed the Plaintiff as joyless,
bland in expression and tone, low in energy, reclusive and seemingly intent on
isolating herself. She also noticed that the Plaintiff experienced difficulty
in mentation and was seemingly inefficient with her time in the classroom. Ms. Nordy
worried about the Plaintiff and inquired as to how she was doing. Ms. Nordy
suggested to the Plaintiff that she should speak to either the school counselor
or principal.
[97]
Ms. Nordy recalled that the Plaintiff eventually finished out the
school year working part-time. Over the course of time that the Plaintiff
taught at Peterson Road, Ms. Nordy did not notice any improvement and
said, if anything, she got worse.
[98]
During her time at Peterson Road, the Plaintiff, unwisely, attempted to
introduce Montessori principles into the regular school curriculum. The
experiment was an admitted failure. Despite that, the Plaintiff seemed
unable to initiate a classroom routine more consistent with the norm expected
in a non-Montessori environment.
[99]
Prior to adjusting her working hours in March of 2010, the Plaintiff
returned to Dr. OBrien, who offered up antidepressant medication which
the Plaintiff declined. Instead, the Plaintiff re-engaged counseling. Dr. OBrien
provided a note/letter to the Langley school board which allowed the Plaintiff
to reduce your work week to 40% of normal.
[100] Later, in
the spring of 2010, the Plaintiff underwent a number of counseling sessions focussed;
it would appear from the records, on a relationship with a man from Togo. The
records suggest the Plaintiff was considering a move to Africa at that time.
[101] In September
2010, the Plaintiff applied for and received a full-time on-call teaching
assignment at another elementary school, James Hill, which was another regular
curriculum school. That position quickly turned into a full-time assignment. The
Plaintiff was assigned a class for the remainder of the school year.
[102] Although James
Hill was a better experience than Peterson Road, the Plaintiff still experienced
ongoing stress teaching in a non-Montessori environment and acknowledged that
she questioned the validity of the regular school program and its teaching methodology.
Nonetheless, anxious to avoid another change of environment, she wanted to
ensure that she received an assignment to James Hill for the upcoming 2011/12
school year. She sought assurances from the schools principal, Mike Etheridge,
that a position would be available for her in the fall, but he was unable to
provide such a guarantee.
[103] Mr. Etheridge
was James Hills principal throughout the Plaintiffs tenure at James Hill. He testified
that he observed the Plaintiffs classroom on a number of occasions, noting
that the children in her class moved around more than was the norm and her
class seemed unstructured. He also observed that she left some groups
unsupervised while she worked with others and her classroom was not as
organized as that of the other two experienced kindergarten teachers.
[104] Mr. Etheridge
received complaints from the parents of children in the Plaintiffs class that
her classroom was devoid of stimuli on the walls, such as kids drawings, word
walls or even pictures. He offered financial assistance to brighten the
classroom but the Plaintiff did not follow through on his offer.
[105] Without
saying so directly, in so many words, Mr. Etheridge did not rate the Plaintiffs
teaching as a five out of five as Michael Richmond had. Her failure to
overcome the difficulties that Mr. Etheridge perceived she was
encountering did not seem to be for want of effort. The Plaintiff acknowledged
things were not going well, but told Mr. Etheridge she felt overwhelmed
in the classroom.
[106] I find
that the description of the Plaintiffs work given by the two principals, Mr. Richmond
and Mr. Etheridge, are polar opposites. It is difficult to appreciate they
were describing the same person.
[107] Mr. Etheridges
inability to guarantee a position for her during the next school term resulted
in the Plaintiff applying for and receiving a leave of absence from the Langley
school board in the spring of 2011. She sought out, or at least investigated, employment
opportunities with other school boards, notably Delta, New Westminster and
Surrey, without apparent success.
[108]
As a consequence of Dr. OBrien suggesting anti-depressants, the Plaintiff
said she began seeing less of her. Dr. OBriens clinical records post-May
2010 are sporadic. There are no specific references to any perceived diminution
in cognitive functioning. In October 2012, there is a notation in Dr. OBriens
records which reads, Still feeling low. Does not feel her work in Canada is
meaningful like her work was in the developing world. Would like to return to
that type of work.
[109]
In December 2013, Dr. OBrien recorded:
Been back in Canada for 7 years.
Still not adjusted. Lack of motivation, lack of focus. Loss of pleasure in
things. Living with parents. Doing 12 hours of tutoring a week.
[110] Following
her leave of absence in 2011, the Plaintiff has never returned to the Langley school
district. She followed the leave of absence in 2011/12 with two further
requests of for a leave of absence in 2012/13 and 2013/14. As noted above, School
District policy allows for three successive leaves of absence, after which the
teacher is no longer an employee of the Langley school district; albeit
presumably one could re-apply for a teaching position.
[111] As of the
end of June 2014, the Plaintiffs three successive leaves of absence are
completed. The Plaintiff indicated to the Langley school board a willingness to
return to teaching in September 2014 so that she might maintain her employment
status. Such, according to the Plaintiff, was more to preserve her options as
opposed to any true intention to return to full time teaching.
[112] During her
hiatus from full-time teaching, the Plaintiff acted as a substitute instructor
at her friends Montessori school, a private tutor for students whom she taught
there and, for a period of time, attempted to work as an agent for a musician,
Joe Amouzou.
[113] The latter
enterprise worked out poorly because, according to Mr. Amouzou, the Plaintiff
lost focus in several potential opportunities for engagements and, during a
period he was on the road, he could not contact her by either e-mail or Skype
to discuss his concerns.
[114] She
testified that, on occasion, she missed appointments for tutoring, owing to the
unreliability of her memory.
[115] None of
the ventures the Plaintiff has engaged in since leaving the Langley school
district have been financially successful. Her record keeping is unreliable, resulting
in difficulty estimating her present earning capacity. The Plaintiff, through
counsel, suggests her income capacity has been diminished by virtue of the
accident to $22,500 annually.
[116] The Plaintiff
testified that if she does not return to full-time teaching within the B.C.
public school system, she has considered setting up her own Montessori day care
either in Canada or in Africa, establishing a business specializing in
educational birthday parties with children, offering full-time educational
programs during school breaks or, lastly, full-time tutoring.
Post-accident Counselling
[117] The
Plaintiff was vague about all counseling sessions both prior to and after the
accident, and had little recall as to the reasons surrounding her visits. The Plaintiff
resumed counseling in May 2009 with Rosalie Diaz, who was offered through the BCTF
employee assistance program. Briefly, her concerns, as recorded by the
counselor, stemmed from a long history of feeling unsettled and leading a
fragmented life; the seeming reference to a split in her personal goals and
work.
[118] The Plaintiff
offered no explanation for her attendance other than that described in Ms. Diazs
notes taken during her one session in May 2009.
[119] The Plaintiff
sought further counseling in late June of 2010 with Tabasom Eblaghie, a
registered clinical counselor. By this time, she had reduced her hours at
Peterson Road and had been offered antidepressants by Dr. OBrien in
response to the Plaintiffs report of an affected mood.
[120] Ms. Eblaghies
notes of the sessions, spanning a three year period from June 2010 to September
2013, repeated the same theme as was apparent in the earlier counseling sessions
with Ms. El Masry, her counselor before the accident.
[121] The Plaintiff
apparently reported to Ms. Eblaghie that her return to Canada was a huge
culture shock and, over time, the Plaintiff began to feel more and more out of
place.
[122] The Plaintiff
agreed in cross-examination that she reported to Ms. Eblaghie that she had
developed a relationship with a man in Togo, that she had gone to visit him
over the Christmas break in 2009 and that she considered marriage.
[123] In a
succession of sporadic visits to Ms. Eblaghie, spread over three years,
the Plaintiff reported self-doubt, a feeling of unworthiness, fear, lack of
motivation and voiced the opinion that she was not happy with the extra duties
associated with teaching or dealing with difficult children.
[124] It is
clear from the counselors notes made in the summer of 2010 that the Plaintiff
achieved high satisfaction associated with a faith related teaching project in
July of 2010 and, as a result, she was feeling back on track.
[125] A year
elapsed between a recorded visit to Ms. Eblaghie in October 2012 to the
last recorded session in September 9, 2013. The Plaintiff apparently reported
being dissatisfied with tutoring and continued to procrastinate, not finishing
things she started.
[126] In November
2013, the Plaintiff resumed counseling with Dr. Tara Learn.
[127] In the
history taken by Dr. Learn, after referencing the 2009 accident, the Plaintiff
traced her early feelings of depression to her return from her travels to
Africa. She reported feeling sad a good part of the time just before the MVA.
She reported to Dr. Learn that she worried a lot before the accident and
wondered whether she would stay in B.C., or go back again to Africa.
[128] The
Plaintiff also relayed that she was feeling in over my head when she was
placed at Peterson Road teaching a non-Montessori class. She attributed her
poor memory to preoccupation and noted she frequently forgot things and had
difficulty concentrating. The Plaintiff reported worrying over her depression,
where to live and what to do with the rest of her life.
The Plaintiffs Involvement in the Bahai Faith
[129] The Plaintiff
has been a follower of the Bahai faith since 1996. According to the
Plaintiffs evidence, one of its fundamental tenets is service to others.
[130] Neither of
her parents shares her faith. A reference contained within the Ms. Eblaghies
counselling records indicates that the Plaintiffs faith caused unease within
the family, particularly with the Plaintiffs mother.
[131] The Plaintiffs
aforementioned involvement with the Bonani School for Girls in Zambia arose
from the Plaintiffs desire to serve and pursue her ideals as a teacher. Her
greatest report of success and happiness seems to be associated with faith-based
pursuits.
[132] As noted,
upon her return to Canada, the Plaintiff re-involved herself in the Bahai
community and, shortly thereafter, was voted by other members of the community
to a position of responsibility.
[133] Following
the accident, the Plaintiff participated in both the organization and in
seminar presentations for the Bahai community.
[134] Since the Plaintiffs
return to Canada, it is apparent that her involvement in the B.C. public school
system, whether in the Montessori class at Uplands Elementary or either of the
two positions in non-Montessori classrooms, has not provided the Plaintiff with
the same sense of satisfaction she derived from her experience abroad.
[135] Since the
loss of her position in Zambia, then later with the Bahai International Centre,
the Plaintiff has consistently expressed a desire to return to a position similar
to that which she had in Zambia and, occasionally, pursued avenues, such as her
interaction with the gentleman from Togo, to return to such an environment.
The Medical Evidence
[136] The
central medical issue in the case at bar is not whether the Plaintiff sustained
an MTBI as a consequence of the accident, but rather whether her MTBI is
complicated or uncomplicated. If it is the latter, as argued by the Third Party,
the Plaintiffs ongoing symptoms and inability to work in her chosen profession
are not causally connected to the accident. If it is the former, the causal
connection between her present, diminished level of function and the sequelae
of the motor vehicle accident is made out.
[137] The term
mild as it relates to a traumatic brain injury is a misnomer. An MTBI is a
serious injury which can have a significant impact on the life of the patient.
The word mild is a gradient description of the injury, without regard to its
consequences.
[138] Most patients
who sustain an uncomplicated MTBI, such as a concussion, generally go on to
experience a full recovery. Patients who sustain complicated MTBIs generally
exhibit residual symptoms that often affect mood, memory and concentration.
[139] The Plaintiff
argues such is her situation.
[140] The Plaintiff
presented to friends familiar with her prior to and after the March 2009
accident as different in mood and lacking in focus. Despite the absence of a
baseline by which to reference the Plaintiffs pre-accident presentation, her
appearance and presentation as a witness in these proceedings lead me to
conclude that she has difficulty focusing and appears flat in mood. She was
digressive throughout her evidence, often getting bogged down in excessive
detail well outside of the scope of the question which was posed to her. On
occasion, she would eventually get lost within her answer, requiring the
examiner to re-frame or re-ask questions. Dr. Rathbone described this as a
common finding in patients suffering from long term effects from an MTBI.
[141] In
addition, her presentation, both as a witness and to her friends and colleagues,
belies her superior IQ.
[142] In my
view, the Plaintiffs presentation was genuine. There has been no suggestion by
the Third Party that her presentation at trial or when being examined by any of
the medical experts was anything other than genuine.
[143] Having
accepted that both the Plaintiffs mood and level of concentration is below
that which would be expected of a person of superior intelligence and possessed
of the qualities described by those who knew her and worked with her prior to
the accident does not automatically lead to the conclusion that the Plaintiff
sustained a complicated MTBI.
[144] The Third
Party raises another plausible explanation for her current symptomology, which
requires examination.
[145] It argues
that the Plaintiffs pre-accident psychological condition, evidenced in part by
clinical records of counselors seen both before and after the accident, coupled
with the Plaintiffs post-accident job performance until faced with the
prospect of teaching in a non-Montessori environment, give credence to the
opinions of the three medical experts who testified on behalf of the Third Party,
who concluded that the Plaintiffs current inability to work is not founded in
any injury arising from the accident.
[146] The Third
Party notes the absence, in both the counselors and general practitioners
clinical records, of any entries which are supportive of neurological deficit
immediately following the 2009 accident. There were no reports of headache,
nausea, sensitivity to light or other complaints commonly associated with brain
trauma.
[147] A
subsequent MRI performed shortly after the accident occurred revealed no
indication of trauma to the brain, although the collective view of the medical
experts was that such is not determinative of the existence of an MTBI.
[148] Subsequent
review of radiographs done in 2010 by Drs. Stimac and Siu offer conflicting
opinions as to the existence, or otherwise, of axonal-shearing. Both doctors
have impeccable credentials and are well-qualified to offer opinions in the
field of neuroradiology.
[149] Having
said that, their opinions are diametrically opposed to one another.
[150] Similarly,
the two neurologists, Dr. Rathbone, on behalf of the Plaintiff, and Dr. Dost,
on behalf of the Third Party, both examined and interviewed the Plaintiff
shortly prior to trial. Each concluded there were no physical abnormalities or
neurological deficits evident upon examination.
[151] Dr. Rathbone,
based upon the history taken from the Plaintiff together with a summary of the
observations of collateral witnesses who purportedly observed cognitive and personality
changes in the Plaintiff post-accident, concluded she had suffered a
complicated MTBI, accounting for her present inability to function within the
public school system and maintain her former position as a teacher.
[152] Dr. Dost
was of the opinion that the effects of the original, admitted MTBI had
dissipated, and that her current symptomology was explained by other factors,
notably psychological status as referenced in the report of a psychiatrist, Dr. Riar.
[153] Both
neurologists relied, to some extent, on the differing opinions of Drs. Stimac
and Siu, respectively, to sustain their divergent opinions.
[154] The
presence of axonal shearing, as opined by Dr. Stimac, militates in favour
of the conclusion that the Plaintiff sustained a complicated MTBI.
[155]
The final expert engaged by the Plaintiff was a neuropsychologist, Dr. Viljoen.
He assessed the Plaintiff on three separate occasions in 2010, 2012 and 2014.
Despite cognitive testing which evidenced performance in the upper normal to
superior range, Dr. Viljoen opined that the Plaintiff displayed a mildly
reduced cognitive efficiency in the form of a mild increase in vulnerability to
error under conditions of increased complexity suggestive of a degree of
relative slowing of information processing speed.
[156]
Dr. Viljoen described the Plaintiff is evidencing subtle but
consistent indications of reduction in overall cognitive efficiency in keeping
with the Plaintiffs subjective reports of the difficulties she experienced. He
conceded that an assessment of executive functioning using only the testing
currently available is difficult and deferred to the observations of behavior
as seen through collaterals as being more telling, perhaps, than the test
results.
[157]
Coupled with the Plaintiffs apparent brief loss of consciousness, her
reported disturbance of consecutive memory function and the MRI findings as
interpreted by Dr. Stimac, Dr. Viljoen further opined that the injury
would be best classified as being in the complicated mild range, resulting in
ongoing difficulties in coping since the accident.
[158]
He noted that the Plaintiff has yet to undergo appropriate treatment,
including counseling, psychotherapy and occupational therapy. Even with such
treatment, he was of the opinion that the Plaintiff will be at increased risk
of premature job loss or in a position where she would have to enter a career
at an earlier stage than would have been the case had the accident not
intervened.
[159]
He attributed the Plaintiffs difficulty in coping and her fluctuating
mood to the aftereffects of the accident. He notes her depressive symptoms, apparent
from her medical records, were most prominent during the latter part of 2009
and in early 2010, but with a significant period of low mood being evident
toward the end of 2013.
[160]
Dr. Viljoen acknowledged her present neuropsychological testing
reveals functioning well within normal limits, but says that because her
pre-injury cognitive baseline was significantly above average, any diminishment
in function might be obscured by her high pre-accident capabilities.
[161]
Dr. Viljoen admitted he was unable to quantify the extent to which
each of the potential causal factors contributed to her current difficulties
given evidence of previous stressors in her life prior to the accident, but he
concluded that the accident and its consequences would likely be the proverbial
straw which broke the camels back.
[162]
Having concluded that, Dr. Viljoen agreed that the diminishment in
the Plaintiffs cognitive performance was mild.
[163]
Although in agreement with Dr. Riar, the Third Partys psychiatric
expert, that the Plaintiff exhibited symptoms in 2010 of an adjustment disorder
(mixed anxiety and depression), Dr. Viljoen noted the Plaintiff had
experienced fluctuation mood over time which, in his opinion, likely resulted
from her difficulties in coping, secondary to her head injury in 2009. While
acknowledging long-standing personality factors might contribute to her present
condition, they were unlikely, absent the accident, to account for the Plaintiffs
current clinical presentation.
[164] Dr. Riar,
a psychiatrist who examined the Plaintiff on behalf of the Third Party, was of
the opinion that the Plaintiffs present complaints arose from an adjustment
disorder unrelated to the accident. Its origins, he says, stem from a
combination of employment related issues which translated into pain, anxiety
and depression and even if she were not involved in the accident, she most
likely would have suffered adjustment disorder due to the employment related
situations. On the other hand, if her job placement was regular and to her
liking, even in the presence of the accident in question, she most likely would
not have suffered anxiety and depression.
[165]
In short, Dr. Riar offered up what the Third Party suggests is the
more likely etiology of the Plaintiffs current clinical presentation.
Discussion
[166] The Plaintiff
bears the evidentiary onus of establishing that her current condition, specifically,
her inability to continue as a teacher in the B.C. school system, is causally
linked to injuries arising from the accident: Athey v.Leonetti, [1996] 3
S.C.R. 458 [Athey].
[167]
The headnote from Athey succinctly sets out the test as follows:
Causation is established where the plaintiff proves to the
civil standard that the defendant caused or contributed to the injury. The
general, but not conclusive, test for causation is the but for test, which
requires the plaintiff to show that the injury would not have occurred but for
the negligence of the defendant. Where the but for test is unworkable, the
courts have recognized that causation is established where the defendants
negligence materially contributed to the occurrence of the injury. In some
circumstances an inference of causation may be drawn from the evidence without
positive scientific proof. The plaintiff need not establish that the
defendants negligence was the sole cause of the injury. The law does not
excuse a defendant from liability merely because other causal factors for which
he or she is not responsible also helped produce the harm. It is sufficient if
the defendants negligence was a cause of the harm.
[Emphasis added.]
[168] Accordingly,
I must determine whether the accident was a cause of the harm that the
Plaintiff has suffered. There is no disagreement amongst the medical experts
that the Plaintiff suffered an MTBI during the accident. The disagreement
arises as to whether the MTBI is better characterized as persistent/complicated
or uncomplicated.
[169] The
characterization of the Plaintiffs MTBI as either complicated or uncomplicated
informs the answer to the issue of whether the Plaintiffs withdrawal from the
Langley school board in 2011 was as a result of ongoing, persistent symptoms
arising from her accident related injury or from other causes, specifically the
adjustment disorder identified by Dr. Riar.
[170] If I find
the MTBI was complicated, the Plaintiffs present inability to work is
explained on the basis of the subtle impairments identified by Dr. Viljoen
which resulted, ultimately, in the Plaintiffs current issues with her mood,
motivation, socialization and organizational skills common in patients
experiencing complicated MTBIs.
[171] The Third
Party does not question the Plaintiffs current level of impairment but
attributes it to the adjustment disorder identified by Dr. Riar which,
according to the Third Party causes her emotional vulnerability and an
inability to handle stressful situations such as routinely arise in her former
employment as a teacher; particularly in the unfamiliar terrain of a
non-Montessori classroom.
[172] The Third
Party argues the Plaintiff was pre-disposed to depressive symptoms which were
exacerbated by her unfortunate teaching experiences following the termination
of her position at Uplands Elementary and being thrust into the unfamiliar
environment of a traditional classroom, which included dealing with challenging
students with special needs.
[173] Eventually,
according to the Third Party, the setbacks in the Plaintiffs career led to the
Plaintiff being overwhelmed such that she could no longer function in the B.C.
public school system teaching a non-Montessori class.
[174] Acceptance
of this alternate theory for the Plaintiffs admitted current level of
symptomology is dependent, in large measure, upon the existence of axonal
shearing, as opined by Dr. Stimac but discounted by Dr. Siu.
[175] It also depends
on the weight given to the evidence of collateral witnesses as to the Plaintiffs
progressive decline and, in particular, witnesses who observed the Plaintiff
just before and shortly after the occurrence of the accident.
[176] I agree
with Dr. Viljoen that the observations of reliable witnesses as to
personality changes in the Plaintiff are as informative to the issue of
causation as the neuro-psychological testing he performed.
[177] The Third
Party cautions against concluding that her current level of disability has been
caused, or materially contributed to, by the lingering effects of an MTBI based
solely from the temporal sequence; that is to say, the fact that her disability
followed a serious traumatic event does not in and of itself prove a causal
connection.
[178]
In White v. Stonestreet, 2006 BCSC 801, Ehrcke J. pointed out the
potential dangers of such at paras. 74 and 75, where he stated:
[74] The inference from a temporal sequence to a causal
connection, however, is not always reliable. In fact, this form of reasoning so
often results in false conclusions that logicians have given it a Latin name.
It is sometimes referred to as the fallacy of post hoc ergo propter hoc:
after this therefore because of this.
[75] In searching for causes, a
temporal connection is sometimes the only thing to go on. But if a mere
temporal connection is going to form the basis for a conclusion about the cause
of an event, then it is important to examine that temporal connection
carefully. Just how close are the events in time? Were there other events
happening around the same time, or even closer in time, that would provide an
alternate, and more accurate, explanation of the true cause?
[179]
Here, the Third Party notes the modest lack of time off her work in the
weeks following the accident; the Plaintiffs extensive involvement in
counseling directed towards her inability to re-adjust to Canadian society upon
her return from abroad; apparent conflicts between her faith and her
profession; her general dissatisfaction with the present makeup of the B.C.
school system; her sense that work in Canada was not as meaningful as that
which he performed in the developing world; and her stated intention to Dr. OBrien,
in October 2012, that she would like to return to the type of work she did
before, as offering the better explanation for her current level of employment
and limited functioning.
[180]
Such, in my view, overlooks the totality of the weight of the evidence
from lay witnesses who testified as to noticeable changes in the Plaintiffs
concentration, memory and mood over a period of time following the accident. Ms. Osers,
who taught with the Plaintiff at Uplands both before and immediately following
the accident, testified as to identifiable changes in the Plaintiff upon her
return to work.
[181]
The totality of the evidence of others, notably the contrast between the
evidence of the two principals, Mr. Redmond and Mr. Etheridge,
persuade me that the Plaintiff underwent a dramatic change from her time in
Zambia when she was ranked 5/5 by Mr. Redmond, to the teacher described by
Mr. Etheridge during her tenure at James Hill.
[182]
Despite steadfastly maintaining his view that the Plaintiffs current
clinical presentation was fully explained by his diagnosis of adjustment
disorder, Dr. Riar agreed with Plaintiffs counsel when it was suggested to
him that patients with a complicated/persistent MTBI exhibit some or all of the
following features:
1. Reduced
functioning from prior to the injury.
2. Despite
high intellect, patients can operate a functional level below the capacity.
Their wheels spin without getting traction.
3. Executive
functioning impairment.
4. Slower
mental processing.
5. Fatigue-both
general and mental
6. Impaired
concentration and memory
7. Irritability,
previously unnoticed by others.
8. The combination of the above
makes the patient more susceptible to depression because of persistent
symptoms.
[183] The
above-described symptoms mirror, in large measure, those experienced by the Plaintiff
as she presented at trial and to others who had frequent contact with her, both
pre and post-accident.
[184] In
determining whether it is probable that her current impaired situation was
caused by the sequelae of the accident, or at least materially contributed to
by the accident, I have considered the combined effect of the evidence of those
collateral witnesses who knew the Plaintiff prior to and after her injury, the
collateral witnesses who encountered the Plaintiff following the accident who
were able to observe her level of function, lack of motivation, slower mental
processing, together with the evidence of Drs. Stimac, Rathbone and Viljoen.
[185] I am left
with the conclusion that the Plaintiffs symptoms from the acknowledged MTBI
sustained in the accident caused or materially contributed to the Plaintiffs current
inability to function as an elementary grade school teacher in the B.C. school
system. However, I agree with Dr. Riar that the accident is not the only
causative factor at play and that it was possible, if not probable, that the Plaintiffs
adjustment difficulties integrating back in to Canadian society, her struggles
as between her faith and profession, her dissatisfaction, generally, with the
education system and her desire to make a more meaningful contribution to
society might have, regardless of the accident, led her to her eventually withdrawal
from her occupation as an elementary school teacher. I shall deal with this
further when I consider the quantum of damages.
[186] I reach my
conclusion as to the extent of the Plaintiffs injury and its impact on her
employment for the following reasons:
[187] While
there is little to choose between the evidence of Drs. Stimac and Siu, I
ultimately prefer the evidence of Dr. Stimac, and thus conclude there is
evidence of axonal shearing resulting from the accident.
[188] With the
exception of Dr. Riar, who in my view was not qualified to offer opinions
in the realm of neurology, and Dr. Viljoen, who offered no opinion on the
matter, the other experts agreed that the absence of hemosiderin (the residue
of clotted blood) in the Plaintiffs imaging was not determinative of whether
or not axonal shearing occurred. Radiographs of 80% of patients with axonal
shearing display no signs of hemosiderin.
[189] Dr. Stimac
observed approximately ten lesions, which he opined were emblematic of more
extensive damage. He arrived at his opinion after considering the whole of the Plaintiffs
clinical history and the factors of age, medical history and the appearance of
the lesions at the peripheral white matter of the frontal lobes, which is the
typical appearance and location for small scars due to shearing trauma to the
brain. Dr. Stimac considered and rejected other diagnoses, such as
cerebrovascular disease, multiple sclerosis, vasculitis, infection or an
ischemic event accounting for the observed lesions.
[190] In view of
the Plaintiffs age and history, he eliminated the other diagnoses as less
probable.
[191] Finally,
he noted a 44-year-old individual generally would have no white matter lesions
as a result of small vessel vascular disease. Those who might, would have only
one or two lesions; not ten. He noted the Plaintiffs history provided no
suggestion of vascular disease or an ischemic event such as a stroke which
would otherwise account for the presence of lesions.
[192] Dr. Siu,
for his part, did not rule out the diagnosis of a persistent or complicated MTBI,
but said it was the less likely diagnoses given the location of the lesions. He
acknowledged that absence of hemosiderin, the residue of dried blood from a
bleed, was not determinative of whether a shearing injury had occurred. He
observed six lesions; not ten. He concluded they were not as a result of
traumatic injury on the basis of their location. He testified they were not at
the margins of the gray and white matter, but rather within the cerebral white
matter. He testified they were not sufficiently on the margin of the grey and
white matter of the brain so as to be indicative of axonal shear, but offered
up no differential diagnosis.
[193] Dr. Siu
testified that the identified lesions were idiopathic in origin and that he
would expect to see some on person of the Plaintiffs age without the need to
make any differential diagnosis. However, he offered no opinion but his own for
this assertion.
[194] I agree
with the Plaintiffs counsel that Dr. Sius approach was confined to the
radiographs without regard to the Plaintiffs clinical presentation or medical
history. In my view, such weakens the weight his evidence ought to be afforded
in view of the collateral evidence depicting behavioral changes in the Plaintiff
proximate to the occurrence of the accident.
[195] Dr. Clement,
the radiologist who performed the imaging both experts reviewed in forming
their opinions, offered up a differential diagnosis accounting for the ten
lesions he observed, of either chronic small vessel ischemic disease, or a
traumatic non-hemorrhagic shearing injury, or a combination of both. Dr. Clement
had no clinical history before him when he made the diagnoses. He was
apparently unaware of the Plaintiffs involvement in the accident.
[196] With
respect, I prefer the evidence of Dr. Stimac as to whether or not the Plaintiff
experienced axonal shearing. In arriving at his opinion, Dr. Stimac took
into account not only the radiographic imagery, but the whole of the Plaintiffs
clinical picture as well, including her medical history which is devoid of any
indications of cerebrovascular disease.
[197] Dr. Viljoen
assessed the Plaintiff over three occasions in 2010, 2012 and 2014. He
administered two days of testing on the first and last occasion.
[198] Her major
complaints related to coping, cognitive fatigue, reduced energy, reduced social
engagement, irritability and mild cognitive difficulties relating to memory and
concentration. All culminated in her exhibiting a low mood.
[199] At the
conclusion of testing, Dr. Viljoen concluded the Plaintiff exhibited
subtle but consistent indications of reduction in overall cognitive efficiency
despite achieving test results in numerous categories which placed the Plaintiff
in the superior to high superior range of intelligence and executive
functioning.
[200] Dr. Viljoens
conclusion as to her current level of impairment was informed by reference to
collateral assessments provided by friends, her former principal at James Hill,
as well as Mr. Etheridge, who reported and then testified as to his
observations as to her personality, ineffective coping skills, difficulties
with planning, inability to prioritize and a lack of organizational skills.
[201] Dr. Viljoen
opined that all of these symptoms were consistent with the presence of diffuse
lesions in the Plaintiffs frontal lobes, the portion of the brain that affects
executive function, thus resulting in diminished, albeit still high,
performance levels.
[202] In
assessing the role of burnout or other psychosocial stressors present prior
to the accident, Dr. Viljoen remained steadfast in his view that the
accident played a significant role in the onset of her current symptoms. He fairly
conceded that it was not possible to determine the extent to which the various
causal factors contributed to the Plaintiffs current situation with certainty,
but was of the opinion that her brain injury was likely the final stressor
leading to the breakdown in her coping skills with the resultant decision to
take a leave of absence from James Hill Elementary.
[203] In the
result, for the reasons set out above, I adopt the opinion of Dr. Viljoen
as to the Plaintiff undergoing an MTBI in the mild complicated range, which
will have an ongoing, albeit uncertain, impact upon the Plaintiffs
employability as a teacher within the B.C. school system.
[204] Treatment
may result in an improvement sufficient to allow the Plaintiff to adapt to her
cognitive impairments and regain employment as a teacher. However, the degree
to which her condition could improve is uncertain.
Damages
Non-pecuniary Loss
[205] Having
regard to my conclusion that the Plaintiff suffered a complicated MTBI with
residual symptoms, I find defence counsels submissions as to the quantum of
non-pecuniary loss unhelpful.
[206] Having
said I adopt the opinion of Dr. Viljoen, some of the Plaintiffs present
symptoms are, in my view, unrelated to the aftereffects of the accident. They
reflect what I find to be the Plaintiffs general dissatisfaction with her
situation, both personally and professionally, prior to the occurrence of the
accident.
[207] I agree
with Dr. Riar that the Plaintiffs pre-accident psychological profile was
such as to put the Plaintiff at risk for periods of unemployment, owing to her
lack of coping skills when stressors, common to a teaching situation, arose.
[208] I base
this conclusion, in part, upon the opinion of Dr. Riar and, in part, upon
evidence, both pre and post-accident, of the Plaintiffs inability to
successfully deal with difficult students and/or unanticipated changes in her
classroom assignment. I will explain this further when I come to assess the Plaintiffs
loss of opportunity.
[209] I am
informed by Stapely v. Helsjet, 2006 BCCA 34, at paras. 45-46, as
to the relevant criteria for the assessment of the Plaintiffs non-pecuniary
damages. I will not repeat them here.
[210] The Plaintiff
suffered a number of physical injuries which I characterize as soft tissue
injuries. All healed uneventfully within a reasonably short period of time
after suitable treatment by way of physiotherapy and exercise.
[211] Her most
significant injury by far is the MTBI.
[212] I accept
that this injury has caused the Plaintiff mild cognitive impairment in
processing, which in turn has impacted memory, mood concentration and focus.
The result, not surprisingly, is that the Plaintiff exhibits signs of
depression and social isolation.
[213] Counsel
for the Plaintiff referred me to a number of authorities involving plaintiffs
with injuries similar to Ms. Mastromonaco, suggesting an appropriate range
for non-pecuniary damages is $150,000 to $200,000.
[214] Specifically,
I have been referred to and considered Curtis v. MacFarlane, 2014 BCSC
1138; Watkins v. Dormuth, 2014 BCSC 543 [Watkins]; Danicek v.
Alexander Holburn Beaudin & Lang, 2010 BCSC 1111; Harrington v.
Sangha, 2011 BCSC 1035 [Harrington]; Sirna v. Smolinski, 2007
BCSC 967; and Dikey v. Samieian, 2008 BCSC 604 [Dikey].
[215] No two
cases are alike. At one end of the extreme is the decision in Dikey, where
the plaintiff suffered profound cognitive deficit requiring that he have daily
assistance with his living requirements for the rest of his life. He also
suffered significant ongoing pain. Similar findings were made in Harrington.
[216] In terms
of similarities, the Plaintiffs present condition, attributable to the
aftereffects of the accident, are as follows: irritability, anxiety brought
about by stress, poor memory, concentration, distractibility, fatigue and
general low mood.
[217] While not
so severe as the 32-year-old plaintiff in Watkins, the case is similar,
such that it provides a useful starting point for the analysis. In Watkins, Blok
J. awarded general damages of $175,000.
[218] Unlike the
plaintiff in Watkins, the Plaintiff here is not experiencing ongoing headache,
problems with balance or noise intolerance. I also take into account the
difference in the plaintiffs respective ages, as Ms. Watkins was 27 years
old at the time of she was injured in a car accident. Accordingly, I assess the
Plaintiffs non-pecuniary loss at $160,000.
Past Wage Loss
[219] The
parties agree that the Plaintiffs loss for the period March 24 to April 9,
2009 is $2,299 (net).
[220] The second
period of time the Plaintiff suffered wage loss, March 15, 2010 through to the
end of June, 2010, was as a result of the Plaintiffs reduction of her hours of
work to 40% of that of a full-time teacher. The Plaintiff was supported in the
decision to reduce her work load by Dr. OBrien, who had earlier,
according to the Plaintiff, prescribed her anti-depressants in respect of her
low mood.
[221] The
mathematical calculation of her claimed loss, $7,672, is not challenged, but
the Third Party says the loss was occasioned by circumstances unrelated to the
accident. If it is not clear from my earlier comments, I disagree.
[222] While no
doubt struggling at Peterson Road because of her later arrival and the
non-Montessori environment in which she was teaching, I conclude that but-for
the symptoms brought on by the accident, such as a loss of focus, memory and
concentration, the Plaintiff would likely have soldiered through her upset
and coped with the new challenge.
[223] The third
period of past wage loss, June 2011 to July 2014, is more problematic. Taking
into account that which she earned over the three-year period from 2011 to
2014, the Plaintiff seeks $132,761 for the period she was on a leave of absence
from the Langley school district.
[224] The Plaintiff
submits that it was highly unlikely that she voluntarily leave teaching,
unless her coping capacities had been utterly exhausted by and new experience
for her; continued failure.
[225] With
respect, I disagree that it was highly unlikely that the Plaintiff might have
voluntarily left her position with the Langley school board within the
three-year period under consideration had the accident not occurred. The
entirety of the Plaintiffs evidence and of her thoughts captured in the
records of the various counselors with whom she spoke, both prior to and after
the accident, make clear that the Plaintiff had difficulty re-integrating back
into life in Canada, and that she found her earlier faith-based work more
engaging and spiritually rewarding.
[226] The Plaintiff
commented to both Dr. Learn and to Dr. O Brien that she did not feel
her work in Canada was meaningful and that she would like to return to the type
of work she was doing while in Zambia.
[227] Those
remarks, in my view, have nothing to do with any impairment as a result of
symptoms from the accident, but rather an ongoing conflict, apparent from the Plaintiffs
return to Canada, as between her life here and abroad in a situation similar to
that which she experienced in Africa, and when working at the Bahai World Center.
[228] The Plaintiffs
relationship with the gentleman from Togo, or visit there in 2010, and remarks
attributed to the Plaintiff in the counseling sessions with Ms. Eblaghie, indicate
the Plaintiff was actively pursuing a return to a Third World country.
[229] Further,
there remains the possibility that the Plaintiffs coping mechanisms would have
been strained to the breaking point, regardless of the accident, as she
continued to encounter setbacks in the B.C. school system, such as she
experienced at Peterson Road and, to a lesser extent, James Hill.
[230] I agree
with some of Dr. Riars observations about the Plaintiffs personality
and, in particular, her ability to deal with stressful situations. Dr. Viljoen
recognized these as well, although he was of the opinion that but-for the
accident the Plaintiff would have persevered. Although I prefer Dr. Viljoens
evidence overall, I do acknowledge that these other causal factors could have
accounted for her leave of absence.
[231] In my
view, it is inappropriate to assess the Plaintiffs claim for past wage loss,
from June 2011 to 2014, on the pure mathematical basis proposed by counsel
reliant upon the evidence of an economist, Mr. Benning. Rather, I have
taken into account the possibility that the Plaintiff, regardless of the
accident, might have secured an opportunity to return to Africa to pursue her
faith-based service, or the stressors that she encountered at Peterson Road and
James Hill might have carried on with other postings, eventually leading to the
Plaintiff choosing to withdraw from the B.C. public school system.
[232] With those
considerations in mind, I assess the Plaintiffs loss during the period of June
2011 to July 2014 at $95,000.
[233] Accordingly,
the total past wage loss for the three periods under consideration is $104,971.
Loss of Income Capacity
[234] Given my
conclusion as to the scope of the Plaintiffs injuries, I am of the view that
there is a real and substantial possibility that those injuries will lead to a
loss of income in the future: Perren v. Lalari, 2010 BCCA 140.
[235] The Plaintiffs
future, at the trials end, was uncertain. Of necessity, so as to avoid losing
her position, the Plaintiff advised the Langley school board of her
availability to accept a teaching position. However, it is possible that the
same constellation of symptoms with inhibit her employment as they have in the
past.
[236]
The factors to consider in valuing loss or impairment to ones ability
to earn income is case specific, but includes the following factors noted in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 8:
1. The plaintiff has been rendered less capable overall from
earning income from all types of employment;
2. the plaintiff is less marketable or attractive as an
employee to potential employers;
3. the plaintiff has lost the ability to take advantage of
all job opportunities which might otherwise have been open to him, had he not
been injured; and
4. The plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.
[237] The task
of the Court involves a comparison of what the Plaintiff would probably have
earned but-for the accident with what she will probably earn in her injured
condition. However, the overriding task is to assess the loss, not to calculate
it mathematically. Consideration needs to be made for contingencies, either
positive or negative, which might affect a particular Plaintiffs earning
capacity.
[238] Here, the Plaintiff
presented evidence through Mr. Benning setting out the projected earnings
of the Plaintiff from the date of trial through to her retirement at no later
than 65 years of age.
[239] Mr. Bennings
calculations included contingencies such as non-participation in the labor
force, unemployment, reduction of hours to part-time work, reduction to part-year
work and premature death.
[240] He also
estimated that prior to the accident, the Plaintiff had accrued four years of
recognized teaching experience and that she would have, based on full time
employment, continued to move to the next pay step in successive years,
reaching the highest pay step in January 1, 2015.
[241] Based on
those assumptions, Mr. Benning opined the lump sum present value of future
income, absent the occurrence of the accident, was $794,060 for the Plaintiff,
assuming she would have worked full-time as a teacher through her retirement
until no later than at age 65. After taking into account the Plaintiffs
residual employability, estimated to be $22,500 annually, the net figure respecting
her loss of future income is $604,783.
[242] In light
of Mr. Bennings evidence, the Plaintiff suggests an appropriate award of
damages for future income loss would be in a range of $500,000 to $550,000.
[243] In my
view, such is excessive, having regard to the following factors militating in
favor of a lower award.
[244] Firstly, I
take into account the possibility that the Plaintiff, for reasons earlier
referenced, would voluntarily leave her position with the Langley school board
to pursue opportunities offering more spiritual fulfillment, but less
remuneration. Specifically, I find there was a substantial possibility that the
Plaintiff would have continued to seek and ultimately find an opportunity
similar to that which took her to Africa and Israel in the years from 1997 to
2006.
[245] Further,
there is the possibility of the Plaintiff being overcome by the stressors
associated with teaching, particularly in a non-Montessori environment, in any
event, regardless of the happening of the accident. The Plaintiffs lack of
seniority offered her little prospect of regaining a position in a Montessori
school.
[246] Both
Peterson Road and James Hill provided stressors which, if they continued, might
have caused the Plaintiff to disengage from teaching within the B.C. public
school system regardless of the accidents occurrence and its resultant impact
on her capacity.
[247] Finally,
there is the possibility that the Plaintiff, with some focused therapy as
outlined in the report of Dr. Viljoen, will learn to adjust to what Dr. Viljoen
characterizes as a mild cognitive processing deficiency so as to return to her
former occupation as a teacher in the B.C. school system. I take from Dr. Viljoens
report that to the extent that emotional difficulties noted may be
contributing to Ms. Mastromonacos neurocognitive limitations, some
improvements in both areas may still occur with appropriate psychotherapy, but
it is not possible at present to provide a comment on whether this will
ultimately be fully resolved. It is at this point also not clear whether Ms. Mastromonaco
will ultimately prove to be able to return to her chosen field as an Elementary
School Teacher.
[248] With those
factors in mind, I assess the Plaintiffs loss of income capacity at $350,000.
Loss of Future Pension Benefits
[249] Mr. Benning
calculated the present-day value of the Plaintiffs lost pension benefits,
subject to the same contingencies noted above, at $152,827.
[250] On the
basis of the above reasoning, I find that amount is not reflective of other
negative contingencies not included in Mr. Bennings calculation. I award
the Plaintiff the sum of $80,000 for her loss of future pension benefits.
Future Care
[251] Noting
that the Plaintiffs treatment over the years since the accident has been
intermittent (and likely misdirected, given the absence of a diagnosis), Dr. Viljoen
recommended a course of behavioral-based psychological treatment to address her
residual symptoms of depression, as well as assisting in developing more
effective coping strategies with regard to both emotional difficulties and
cognitive functional limitations. He recommended 25 one-hour sessions at a cost
of approximately $190 per session.
[252] He also
recommended cognitive rehabilitation services from an occupational therapist
with a person experienced in working with those with acquired brain injuries.
The purpose is to assist the Plaintiff in developing effective compensatory
strategies to reduce the impact of those persisting cognitive limitations she
experiences in the work setting. He estimated these services would cost from $1,000
to $1,800.
[253] The Defendant
offered no submission as to the propriety of the future care costs.
[254] In my
view, these future care costs are medically justified as that term is
understood in Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33. I allow the
sum of $4,750 for psychological counseling and/or psychotherapy, together with
$1,500 in respect of occupational therapy, for a total of $6,250.
Special Damages
[255] The Plaintiff
claims $2,592.55 in special damages. These are comprised of physiotherapy
treatments totaling $500; form fee charges totaling $74; enrollment at a
fitness and Pilates studio totaling $490.55; and counseling fees paid to
Tabasom Eblaghie of $1,528.
[256] The Third
Party made no submission as to the propriety of these expenses. I find the
physiotherapy warranted in view of the Plaintiffs physical complaints, as well
as the enrollment at a fitness studio in the period following cessation of
physiotherapy. The charges by Dr. OBrien were for forms needed for her to
obtain reduction in her work hours in 2010, and the counseling was necessitated
by the Plaintiffs feelings of being cast adrift in the period June 2010 until
September 2013.
[257] For these
reasons, I allow special damages the amount of $2,592.55.
Summary of Damages
[258]
In summary, I award the Plaintiff damages as follows:
Non-pecuniary | $160,000.00 |
Past loss of income | $104,971.00 |
Future loss off | $350,000.00 |
Loss of future | $80,000.00 |
Cost of future | $6,250.00 |
Special damages | $2,592.55 |
TOTAL: | $703,813.55 |
[259] The Plaintiff
is entitled to court order interest for past income loss and special damages.
[260]
Unless there matters affecting the issue of costs, the Plaintiff is
entitled to her costs.
Harvey
J.