Personal injury can cause significant upheaval, both for the injured individual and their family and friends. It can be caused by various types of accidents, although motor vehicle accidents are a common cause. If a serious injury results, long-term treatment could be required, and a claim for compensation can assist with out-of-pocket costs, including medical care and lost wages.
Earlier this year, the British Columbia Court of Appeal considered a claim for compensation for a psychological injury caused by a motor vehicle accident in McPhail v. Ross.
Plaintiff receives PTSD diagnosis after motor vehicle accident
In December 2012, the plaintiff was driving along West 4th Avenue in Vancouver. The defendant’s vehicle turned left onto 4th Avenue without stopping at a stop sign, entering in front of the plaintiff’s vehicle. The plaintiff swerved to the left but could not avoid a collision with the defendant’s vehicle, which forced the plaintiff into oncoming traffic. A bus coming from the other direction managed to stop, narrowly avoiding the plaintiff’s vehicle.
The plaintiff, an active master’s student, experienced significant pain in his neck, shoulders and back but did not seek medical attention in the immediate aftermath of the accident. He saw his doctor two days later, who reported that he had a limited range of motion in his neck and back. Given “intrusive thoughts” about the oncoming bus, the doctor made a provisional diagnosis of post-traumatic stress disorder (PTSD). He advised the plaintiff to take over-the-counter analgesics to control the pain and undergo a course of physiotherapy.
Plaintiff experienced physical pain and a stress disorder post-recovery
After initially discontinuing running and swimming for a while, by January 2013, the plaintiff returned to playing sports and completed an 8-kilometre run. In September 2013, he completed a 122-kilometre bicycle race. Despite this, the plaintiff complained of debilitating pain. He attributed his inability to find employment to the accident.
The plaintiff was examined by three medical professionals engaged by the defendant. They diagnosed “trivial” whiplash symptoms. The plaintiff was also assessed as having an “unspecified trauma- and stressor-related disorder”, a label that covers symptoms similar to PTSD but fails to meet all of the diagnostic criteria. The psychological injury existed at the date he was examined in 2018.
The defendant admitted responsibility for the accident and made a pre-trial settlement offer of $100,000, which the plaintiff declined.
Plaintiff’s “slow recovery” questioned by trial judge
The trial judge had concerns about the plaintiff’s credibility and reliability as a witness. The judge explained that he was required to prove, on a balance of probabilities, a causal connection between the injuries sustained and what he claims were his losses. However, there was a lack of objective evidence linking the accident to his injuries and the claimed post-accident damages.
The judge did accept that he had sustained a whiplash-type injury to his neck and back, as well as some psychological symptoms. However, the physical injuries had substantially resolved in 2013. In respect of the stressor-related disorder, the judge was unable to find that it was caused by the accident.
The trial judge awarded $35,000 in non-pecuniary damages (damages to compensate for pain, suffering and loss of enjoyment of life), together with damages in the amount of $2,475 for physiotherapy expenses. Nothing was awarded for loss of earning capacity or for the cost of future care.
Trial judge misapprehended the psychiatric evidence: Court of Appeal
The British Columbia Court of Appeal held that the trial judge misapprehended the psychiatric evidence, as the psychiatrist who assessed the plaintiff’s injuries did draw a causal link between the stressor-related disorder diagnosis and the accident. As a result, the Court of Appeal found that the plaintiff was entitled to have his continuing psychological injury assessed by the judge for the purpose of calculating damages. The Court observed that the injury did not appear to be a trivial one and would appear to justify at least a modest increase in general damages.
However, the Court disagreed with the plaintiff’s argument that the judge erred in finding his evidence not credible, stating:
it would have been difficult for any judge to square [the plaintiff’s] description of his circumstances with the objective evidence of his physical capabilities in the months following the accident and at the date of trial.
Case remitted back to the trial judge to reassess damages
The Court of Appeal remitted the matter back to the trial judge in order to reconsider the assessment of damages in light of the psychiatrist’s evidence that the accident caused the plaintiff’s stressor-related disorder. The Court noted that there was a possibility that the judge might wish to reassess the conclusion that no loss of earning capacity or cost of future care was warranted in light of the ongoing psychological injury.
Contact Meridian Law Group in Vancouver for Skilled Representation in Personal Injury Claims
At Meridian Law Group, we understand the upheaval caused by a serious personal injury. The firm’s talented and determined personal injury lawyers provide skilled representation and pragmatic advice for clients involved in accidents. They help clients negotiate settlements to minimize cost and stress or prepare and mount vigorous trial strategies to secure their clients’ rights and entitlements.
Located in downtown Vancouver, Meridian Law Group proudly represents clients throughout West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. To arrange a confidential consultation for your personal injury matter, please call 604-687-2277 or reach out online.