Somers v. Wesnoski,


2008 BCCA 139

Date: 20080320

Docket: CA034536


Sheila Somers




Garth George Wesnoski and Capital Environmental Resources Inc.




The Honourable Madam Justice Huddart

The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Bauman

Oral Reasons for Judgment

P. Scarisbrick

Counsel for the Appellant

A. Urquhart

Counsel for the Respondents

Place and Date:

Vancouver, British Columbia

20 March 2008

[1]                BAUMAN, J.A.: This is an appeal by the plaintiff (identified throughout as Ms. Reid) from the judgment of Justice Truscott in a motor vehicle accident claim.  The neutral citation for the trial judge’s reasons is 2006 BCSC 1506.

[2]                Liability was admitted at trial.  Justice Truscott awarded damages to Ms. Reid in these amounts:

a)         General Damages      $25,000.00

b)         Cost of future care          5,000.00

c)         Special damages            1,380.00

[3]                The dynamics of the accident are described by the trial judge at paras. 4 to 7 of his reasons so:

4]               On October 28, 2002 she was driving her van towards her home and was on 208th Street in Surrey at approximately 8:00 a.m. when she stopped behind a disposal truck that had come to a stop in front of her.

[5]               This truck was equipped to pick up containers with forks protruding from the back of the truck.  After it had come to a stop it began backing up towards Ms Reid’s vehicle with the forks protruding.  Ms Reid had her foot on the brake pedal of her van and honked the horn repeatedly.

[6]               The truck did not stop and kept backing up as Ms Reid continued to press the brake pedal and to honk the horn.  She pushed her body as far back into her seat as it could go as she watched both rails penetrate her windshield and come towards her.  She did not try to back up herself as she was terrified and panicking.

[7]               The rails stopped approximately one-and-one-half feet before her face.  They did not touch her body at any time and in fact nothing impacted with her body.  She says that there was no swaying motion of her vehicle and she does not know if it was moved at all.  She remained pressed against the back of her seat and headrest and she does not think she moved sideways or forward.

[4]                Unfortunately, the appellant, both before and after the accident, experienced a number of very significant stressors in her life.

[5]                These have included a history of childhood sexual abuse, an acrimonious separation from her husband, the loss of custody of her daughters after the accident and before trial, a diagnosis just before the accident of autism for one of her children and significant health issues facing her mother.  Regrettably, even this is not a complete list of the challenges which this appellant faces.

[6]                Although the appellant was able to continue in her work as a care-aide for approximately two years after the accident, she was terminated from that employment on 29 October 2004.  No reason was given for her termination.  This of course represents a further source of stress for Ms. Reid.

[7]                The appellant has not worked since. 

[8]                The trial judge noted, at para. 187 of his reasons, that at the time of trial “Ms. Reid has apparently regressed to the point where she has difficulty in leaving her home because she feels overwhelmed and she is generally withdrawing from society”. 

[9]                The trial judge concluded that the appellant presented as a “crumbling skull” in the language of the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458.

[10]            The thrust of Justice Truscott’s reasoning on the issue of general damages is captured in paras. 175-179 of his judgment:

[175]       I accept that the motor vehicle accident was very traumatic for Ms Reid.  I also accept that she was a fragile person mentally before the motor vehicle accident.  I accept that the motor vehicle accident increased her level of stress and anxiety that pre-existed the accident.  I accept that she is in need of psychiatric counselling for this increased level of stress and anxiety caused by the motor vehicle accident.

[176]       I also accept, however, that most of Ms Reid’s physical complaints are not grounded in any physical injuries but are grounded in her somatoform pain disorder that preceded the motor vehicle accident.  The motor vehicle accident brought out more physical complaints because of the degree of trauma involved and Ms Reid’s heightened state of anxiety.

[177]       I am forced to accept that Ms Reid sustained some actual soft tissue injury in the motor vehicle accident because Dr. Fagan treated her for some of that and referred her for physiotherapy.  In addition Dr. Davis accepts that she sustained some soft tissue injury and so does defence counsel.  However, in view of the fact that Ms Reid was not even physically impacted in the motor vehicle accident, nor moved out of her seat, I conclude that all of her present physical complaints are likely due to her mental issues.  Dr. Sovio could find no sign of physical injury on his examination of her and even Dr. Hartzell was hard pressed to demonstrate any physical limitation or physical pain.

[178]       On the issue of general damages for pain and suffering I therefore conclude that Ms Reid had some minor short term soft tissue injury in the motor vehicle accident, but that the main injury that she had from the motor vehicle accident was to her mental state through the increase in her level of stress and anxiety requiring psychiatric counselling.

[179]       I conclude that the defendant cannot be responsible for all of this stress and anxiety as some of it relates to her original condition of alexithymia caused by the previous stresses in her life with those stresses continuing after the motor vehicle accident and for which she also requires psychiatric counselling.  In my opinion the defendants’ submission of an award of $25,000 for general damages is appropriate and I so order.

[11]            On the issues of past wage loss and loss of future earning capacity, the trial judge concluded that the appellant had not established that the accident led to the loss of her employment.  The trial judge stated his conclusion on these issues at para. 190:

I am unable to overcome the fact that Ms Reid was able to continue working full time after the accident for almost two years without any complaint from her employer before her termination.  I have no doubt that her termination heightened her state of stress and anxiety but since I cannot attribute her termination to the defendant, I cannot attribute her present state of employment to the defendant either and I decline to award her any compensation for her ongoing unemployment after her termination.

[12]            Finally, the trial judge, in making his award for cost of future care, stated at para. 191:

Because I have concluded that her recommended psychotherapy is as much for her pre-existing and ongoing alexithymia as it is for any aggravation of her stress and anxiety from the motor vehicle accident, I award her fifty percent of the expected costs or $5,000.

[13]            In her factum, the appellant alleges these errors in judgment/issues on appeal:

50.       Whether the learned trial judge erred in failing to give comprehensible reasons for concluding that the appellant's condition was not caused by the accident.

51.       Whether the learned trial judge erred in failing to award amounts for past income loss and loss of future earning capacity.

[14]            As to the first alleged error, in my view it cannot be sustained.

[15]            The trial judge’s reasons span 41 pages and 194 paragraphs.  He includes a comprehensive review of the evidence led at this five-day trial, with special attention paid to the evidence of the competing psychiatric experts, for the appellant, Dr. Levin; and for the respondents, Dr. Davis.

[16]            Justice Truscott notes the positions of the parties before him, at length, and he then includes his analysis and decision at paras. 166-192.

[17]            Both parties before us relied on the Supreme Court of Canada’s reasons in R. v. Sheppard, [2002] 1 S.C.R. 869.

[18]            The respondent cited para. 33 from Justice Binnie’s judgment of the Court (which comes in his Lordship’s discussion of the Court’s decision in R. v. Burns, [1994] 1 S.C.R. 656):

[33]      The appellant relies on this statement as establishing a simple rule that trial judges are under no duty to give reasons, but it seems to me, on the contrary, that this Court did expect trial judges to state more than the result.  McLachlin J. anticipated at least “their conclusions” on the main issues (though perhaps not “collateral” issues) at least “in brief compass”, and “collateral aspects”.  What was said in Burns, it seems to me, was that the effort to establish the absence or inadequacy of reasons as a freestanding ground of appeal should be rejected.  A more contextual approach is required.  The appellant must show not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case.

[19]            In Bedwell v. McGill, 2008 BCCA 6, Justice Tysoe, dissenting in part although not on this point, cited the Supreme Court of Canada’s decision in Hill v. Hamilton-Cherry Police Services Board, 2007 SCC 41, and suggested that the touchstone on this issue is whether the reasons permit proper appellate review (at para. 21):

The question of whether a trial judge's reasons are adequate is a threshold issue.  If the reasons are not adequate to permit proper appellate review, the appeal must be allowed and a new trial ordered.  Inadequate reasons do not enable the appellate court to make its own findings of fact and conclusions of law based on those findings.  In addition, the issue of adequacy of reasons is different than the issue of whether the failure of the trial judge to address critical evidence constitutes a palpable and overriding error.

[20]            In my view, the reasons of the trial judge here offer sufficient detail to permit proper appellate review of the issues raised by the appellant.

[21]            I turn to the second issue, that is, the error alleged in the refusal of the trial judge to award amounts for past income loss and loss of future earning capacity.

[22]            The appellant first complains that the trial judge did not expressly deal with the submission at trial that Dr. Davis’s evidence ought not to be accorded any weight, because a heavy reliance on retainers from the Insurance Corporation of British Columbia creates a reasonable apprehension that the doctor is biased in favour of the insurer.

[23]            The trial judge was expressly alive to the issue of bias.  He carefully weighed the evidence of Drs. Davis and Levin and, as he was entitled to do, he accepted some, but not all, of the conclusions of both.

[24]            This weighing of the evidence is classically within the province of the trier of fact. 

[25]            The appellant then proceeds to make her central point on this aspect of the argument (at para. 67):

Into this mix must be added that fact that the learned trial judge awarded the appellant 50% of the cost of what the appellant had claimed for necessary future counselling sessions.  This source of this award in the evidence is puzzling because Dr. Davis had said that, even though[t] the appellant needed counselling, that necessity was not caused by the accident.  Dr. Levin said that the counselling was necessary, but he also said that the appellant's condition was caused in part by the accident.  In order to make the award the learned trial judge must have accepted Dr. Levin's evidence.  But if he did that he should have gone on to conclude that the appellant was unable to work in part because of the accident and awarded 50% of the amount claimed by the plaintiff - $22,500 for each of past income loss and loss of future income earning capacity.

[26]            It is said that the appellant’s submission here is buttressed to the extent that the trial judge’s award for general damages includes compensation for stress and anxiety.

[27]            As I read para. 190 of the trial judge’s reasons quoted above, he concluded, on the evidence before the Court, that the appellant’s past, current and future employment income losses (as to the latter, if any) were not caused or contributed to by the accident and, in particular, by the appellant’s increased level of stress and anxiety arising out of it.

[28]            In my view, there is nothing inherently inconsistent in the trial judge accepting, as he did, that the appellant’s need for future psychotherapy was caused, in part, by the accident, and his conclusion that the appellant’s past loss of income and any current or future loss of earning capacity, were not.

[29]            It is not error to conclude that one can have the former without the latter.  This is not a case where, for example, a jury finds that the plaintiff suffered injury and grants special damages but, perversely, denies any award for general damages.

[30]            It is to be noted that the facts as found by the trial judge supported only one conclusion – that the appellant had not established that her past income loss and any future loss of earning capacity arose in any way out of the accident.  Dr. Davis of course opined that Ms. Reid could work at her past occupation.  The trial judge inferred that Dr. Levin concluded otherwise but, of course, he could not say why.

[31]            I would not give effect to either of the grounds of appeal and I would dismiss the appeal.

[32]            HUDDART, J.A.: I agree.

[33]            TYSOE, J.A.: I agree.

[34]            HUDDART, J.A.: The appeal is dismissed.

“The Honourable Mr. Justice Bauman”