Samuel v. Levi,


2008 BCSC 1447

Date: 20081031
Docket: M031769
Registry: Vancouver


Jomy Samuel



Kathleen Mary Levi and
Maurice David Levi


Before: The Honourable Madam Justice B.J. Brown

Reasons for Judgment

Counsel for the plaintiff

K.D. McGee
J.M. Rice

Counsel for the defendants

S.B. Stewart
M.A. Chaudhary

Date and Place of Trial/Hearing:

February 11 – March 7;
April 21 – 22, 2008


Vancouver, B.C.

[1]                        The plaintiff seeks damages for personal injuries arising out of a motor vehicle accident that occurred on March 12, 2002. 


[2]                On March 12, 2002, Dr. Samuel was a student studying for her PhD in chemistry, at the University of British Columbia.  She left the chemistry building at approximately 10:00 p.m.  She was crossing University Blvd. from the chemistry building toward the book store.  It was dark and had been raining.  She was in the marked crosswalk.  University Blvd. runs east and west and, at this location, has a lane of traffic in each direction separated by diagonal parking.  This creates a wide parking boulevard between the two traffic lanes.  Dr. Samuel was walking in the crosswalk from the north side of University Blvd. to the south side.  When she came to the centre dividing boulevard, she looked to her right for oncoming traffic.  She saw the defendant’s vehicle turn toward her.  The defendant’s vehicle was not moving fast.  She tried to make eye contact with the driver and shouted “stop” but the car did not stop.  She says that the car struck her knees and she fell forward onto the hood.  She has a fuzzy recollection from that point until she was on the ground.  She describes feeling like “she was falling off a cliff”.

[3]                The defendants’ vehicle was driven by the defendant Kathleen Levi.  She arrived at UBC that evening to pick up her husband from work.  She drove westward down University Blvd. in search of a parking space, then turned at the end of University Blvd. and came back, travelling eastbound.  She stopped at the crosswalk before making a U-turn to go back around in search of a parking stall.  She admits that she was driving in the crosswalk at the time of the incident.  She has some doubt that her vehicle actually collided with the plaintiff.  She says that Dr. Samuel was in front of her car, so close that she was unable to see Dr. Samuel’s legs.  She says that when her car stopped, Dr. Samuel stepped backwards twelve to fifteen feet and then sat down. 

[4]                I find that Ms. Levi stopped before the crosswalk, as she was travelling east.  She looked to her left initially, then to her right before turning left and entering the crosswalk.  She was driving north in the crosswalk when her vehicle collided with Dr. Samuel.  Ms. Levi did not see Dr. Samuel until just before the collision and did not stop her vehicle before she collided with Dr. Samuel.  I accept Dr. Samuel’s evidence that the vehicle collided with her knee and she fell forward onto the hood of the car before coming to rest on the ground.

[5]                I do not accept Ms. Levi’s evidence that Dr. Samuel stood in front of her car, staring at her before stepping backwards twelve to fifteen feet and sitting down on the pavement.  This is inconsistent not only with the evidence of Dr. Samuel, but also with the evidence of Constable Monsef.    

[6]                Constable Monsef is with the RCMP and was stationed at UBC.  He arrived at the scene within approximately one minute of receiving a call to attend the scene.  He said that Ms. Levi admitted to him at the scene that she had struck the plaintiff.  He also testified that Dr. Samuel was on the ground just a couple of feet in front of the car, not twelve to fifteen feet back as recalled by Ms. Levi.  I accept Constable Monsef’s evidence. 

[7]                Constable Monsef described Ms. Levi as extremely upset, verging on hysteria, at the scene.  Accordingly, it is not surprising that her recollection of events is confused.    

[8]                In my view, Ms. Levi is 100% responsible for the accident.  She was driving in, not through, the crosswalk, in the course of completing a U-turn, looking for a parking space.  She was aware that at that time of night it is quite common for there to be pedestrians about, that there are still students attending classes.  Indeed, she was picking her husband up from teaching a class. 

[9]                Section 179 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 provides that a driver must yield the right of way to a pedestrian in a crosswalk.

[10]            Dr. Samuel left the sidewalk on the north side of University Blvd. after ensuring that it was safe to do so.  She walked to the centre of University Blvd. and looked to her right for oncoming traffic.  She was standing still when the Levi vehicle turned toward her.  The fact that she was wearing dark clothing does not mean that she bears some responsibility for the accident.  I adopt the reasons of Mr. Justice Burnyeat in Achilleos v. Nix, 2000 BCSC 1422 at para. 20:

Pedestrians in crosswalks who are proceeding when the “walk” pedestrian sign is illuminated are free to wear whatever colour clothes they feel are appropriate.  This is not a case where the lack of lighting and bad weather conditions created a situation where the wearing of dark clothes in any way contributed to causing the accident.

[11]            Similarly, here, while there was no “walk” light, Dr. Samuel was proceeding in the crosswalk.  She stopped to look for traffic before stepping from the safety of the area adjacent to the parking median.  She shouted “stop” at the oncoming car. Dr. Samuel cannot be faulted for her conduct in the circumstances.


[12]            Dr. Samuel’s complaints are complicated, and their diagnosis proved to be medically challenging.  The assessment of her complaints lies at the crux of this case and I will examine the history in some detail. 

[13]            An ambulance attended the scene.  The crew report describes Dr. Samuel’s chief complaint as pain in the left knee.  She told the emergency services personnel that she had not lost consciousness, that she was not suffering from neck pain and did not hit her head.   

[14]            She told the UBC emergency department nursing staff at 10:50 p.m. that her chief complaint was a left knee injury.  She said that she had not lost consciousness and did not have neck or back pain.

[15]            Dr. Carter, the emergency room physician, noted contusions to the left shoulder, left knee and left temporomandibular joint (“TMJ”).

[16]            Dr. Samuel made her way home to rest.

[17]            On March 15, she attended UBC Student Health Services, complaining of “feeling very weak, some chest discomfort, feels it is an effort to breathe, left jaw sore”.  Dr. Gisslow found “tender left trapezius border, normal range of shoulder movement and tenderness to the left temporomandibular joint”.  Dr. Gisslow described the accident as “the car struck her knees; she rolled over the hood and fell on the road”.  Dr. Samuel told Dr. Gisslow that she did not think that she lost consciousness, but her memory of the event was a little fuzzy.  She was reluctant to go out of the house and was somewhat anxious. Dr. Gisslow assessed “MVA, contusions and psychological effects of trauma.” 

[18]            On March 19, 2002, she went to her family physician, Dr. Hodgson.  He described her as profoundly depressed and tearful because she was not able to do anything, and that she “wants to know why”.  She was hyper-sensitive to examination.  He noted that she was irritable, said “you just don’t understand”, and left. 

[19]            Also on March 19, the same day that she saw Dr. Hodgson, she went to the UBC emergency department.  She saw Dr. Edmonds, who described her as speaking in a barely audible whisper and complaining of discomfort in her left TMJ.  She had difficulty opening her mouth.  His diagnosis was left TMJ pain.    

[20]            On March 22, 2002, she saw Dr. Mirwaldt at Student Health Services.  Dr. Mirwaldt noted that she was getting frustrated as she felt that no one was taking her concern about overall weakness seriously.  She complained of bilateral knee pain, with the right being worse than the left, and overall weakness.  Her chest felt constricted and it was hard to talk in a normal voice or breathe deeply.  She was feeling too weak to leave her home.  She was concerned that people thought that she was depressed, she wanted to get back to work and hated being sedentary.  She was tearful when asked to do movements.  She was very tender over the left side of her neck, the left shoulder posterior muscles were very tight and tender, and there were spasms in the paraspinal muscles along the thoracic and lumbar left side.  Dr. Mirwaldt noted “much neck and back spasm”.  The diagnosis was “sprains and strains of the back”.

[21]            She saw a chiropractor, Dr. Kvalheim, on March 27, 2002.  He noted her whole back to be in severe pain, and pain which “started in the neck and jaw, pain getting worse”.  The examination was described as difficult, “client in lots of pain – needed to lay down – hurts/pain to sit or stand.  She couldn’t stand or sit longer than 10 minutes for the examination.”

[22]            On April 1, she completed questionnaires for Dr. Kvalheim.  She indicated pain in the neck and shoulder bilaterally, in her lower back, in both knees and in the left shoulder and arm.  She described herself as severely incapacitated, totally unable to function.  She said that she was staying in bed most of the time because of pain in her back, which she said was painful almost all of the time.  She rated her neck pain as fairly severe.   

[23]            On April 3, 2002, she saw Dr. Mirwaldt again.  The diagnosis was again “sprains and strains of the back.”  She was frustrated by pain and wanting to get back to the lab.  She was laying still all day as “nothing else can be tolerated and was feeling totally incapacitated”.  She was tender “all over the back”.  She moved her neck only a little when requested to do so because she felt limited by the pain.  Dr. Mirwaldt noted that there were more symptoms than physical signs and that her pain was out of proportion with the signs.   

[24]            On April 17, 2002, she saw Dr. Mirwaldt again.  Again, the diagnosis was sprains and strains of the back.  She was still experiencing restricted movement.  Her right wrist was now painful.  On examination she was “exquisitely tender” when touched.  As she relaxed, no more spasms were was found along her lower back, although her back was tender to touch all over.  Again Dr. Mirwaldt noted “more tenderness than expected”.   

[25]            On May 6, 2002, she saw Dr. Lloyd-Smith at UBC Student Health Services.  She was described as having “ongoing left greater than right jaw, face, neck, upper back, shoulder to left arm, right wrist, low back left greater than right with left hind quarter to foot back, thickness, heaviness.”  Sitting produced severe lower back pain.  On examination she had TMJ tenderness, decreased range of movement in her neck, tenderness of the paracervical trapezious and rhomboid muscles, left worse than right.  Her strength was poor, secondary to pain.  Her right wrist and paralumbar muscles were tender.  Sacroiliac joints were a problem, left greater than right.  Straight leg raising was now reduced to 45 degrees, secondary to pain, whereas Dr. Mirwaldt had found her able to straight leg raise to 90 degrees without pain on April 17, 2002.  He diagnosed “other and ill-defined sprains and strain”. 

[26]            On May 7 she saw Dr. Lloyd-Smith again, complaining of fainting, feeling worse, numbness to the left side of her body, face, trunk, arm and leg and unpredictable weakness of the left arm and leg.  He found no neurological symptoms and no anatomical explanation.  He diagnosed unspecified disorders and symptoms.  He saw her again on May 14 after a CT scan of her head.  She still had numbness on the left side of her body and inconsistent weakness.  He referred her to a neurologist, and noted that “she is keen”.

[27]            On May 16 she saw Dr. Lloyd-Smith again and discussed getting back to the lab.  On May 21 she returned, complaining that her left-sided numbness and weakness recurred four days before, but was improving.

[28]            Dr. Samuel saw Dr. Spacey, a neurologist, on May 30, 2002.  Dr. Spacey’s impression was:

Since the time of the accident she has had escalation in symptoms.  Her initial description of being only able to whisper and have total body weakness for three weeks sounds highly functional in nature and I cannot provide a physiological explanation for her whispering voice.  There are many non-physiological findings on Jomy’s exam.  The vibration, which only respects the midline on the forehead, could not be explained.  She clearly was not fully participating when I asked her to close her eyes against resistance, as a Bell’s phenomena was absent.  However, she did appear to have slight brisk reflexes on the left side.  Because of this objective finding, I am taking her claims more seriously and I have arranged for her to have an MRI.  … carotid dissection is possible and I have arranged for her to have an MRA at the time of her MRI.  The main focus of my investigations is to rule out possible ischemic events from dissection.  … I have told Jomy that she does have a lot of anxiety contributing to her symptoms and she was very upset that physicians were not taking her seriously.  I told her that all investigations, which can be done, are being done and every attempt is being made to rule out an organic etiology of her complaints.

[29]            On June 5, 2002, Dr. Samuel saw Dr. Blasberg, a specialist in oral medicine, for her TMJ complaints.  She is described as having occasional pain in the right facial area, but her primary complaint was the left facial area. 

[30]            By July 5, 2002, Dr. Spacey had received the results of the MRA and a cerebral angiogram and concluded that Dr. Samuel had suffered a right carotid dissection. “I have told Jomy that this was quite likely related to the accident and that she should remain on … ASA for the next six months [to avoid a stroke or ischemic event].“ 

[31]            On July 17, 2002, Dr. Lloyd-Smith referred Dr. Samuel to Dr. Teal, a neurologist, for a second opinion.  He accepted the diagnosis of right carotid artery dissection and advised Dr. Samuel to continue to take aspirin and to begin to get active and resume her normal activities.   

[32]            On July 31, 2002, Dr. Samuel saw Dr. Anzarut, a neurologist, at the request of counsel.  He concluded:

This patient was involved in a motor vehicle accident on March 12, 2002 with serious neurological consequences.  She suffered a dissection of the right internal carotid artery with resulting numbness and weakness of her left side.  The dissection of the carotid artery was a direct consequence of her hyperextension flexion injury at the time of the motor vehicle accident.  Her risk of having a recurrence of the dissection is estimated at 1% per year.  The increased risk persists for at least a decade and possibly longer.

[33]            Dr. Samuel did not return to her lab work after the accident.  She was able to complete her thesis and defend it.  She received her PhD from UBC in November 2002.  She then moved to the University of California at Berkeley for post-doctoral studies at the lab of Dr. Bertozzi. 

[34]            While in California, she saw a number of physicians.  In January 2003, she was seen by a neurologist, Dr. Kwo.  He reported that Dr. Samuel was complaining of left sided pain and weakness, tingling which affected the left head region, spread to the entire left side, lasted for up to four days, recurring every one to two weeks, as well as episodes of weakness following the pain which became worse during exertion.

[35]            He concluded:  “According to the records, she suffered a right carotid dissection and has since been on aspirin.  However, presently the findings on her neurologic examination are non-anatomical”.  He recommended follow-up carotid studies and MR studies, and that she continue to take aspirin for stroke prophylaxis. 

[36]            After the studies were completed, Dr. Kwo said: “I am unable to explain the continued carotid dissection in relation to her symptoms.  However, for further evaluation, I have taken the liberty to request a second opinion at the UCSF [University of California, San Francisco] Medical Center.” 

[37]            Dr. Samuel was seen at UCSF Medical Center in March 2003 by Dr. Ko, a specialist with the Neurovascular Service.  Dr. Ko said:

She has persistent difficulty with left-sided weakness and numbness that appears to be fluctuating and recurrent particularly in the setting of increased physical stress and activity.  She remains on a daily aspirin.  Her most recent brain MRI shows no structural injury to explain her symptoms.  Based on information presented today, there is no clear neurologic explanation for her persistent left-sided weakness.  We discussed at length other possibilities including systemic illness causing fatigue, or a psychiatric component to her illness. … I have encouraged her to seek counselling from a neuropsychologist and she is interested in a referral to our behavioral psychiatry group at UCSF Langley Porter Psychiatric Institute.  She is considering taking a medical leave so that she can pursue a physical therapy program to regain her full strength.

[38]            In July 2003, her family doctor referred Dr. Samuel to the Stanford University Medical Center.  She was seen by Dr. Tong, a neurologist, and Associate Director of the Stanford Stroke Center.  He undertook further investigation. On February 17, 2004, Dr. Albers, the Director of the Stanford Stroke Center reported to her family doctor:

It is my impression that there is no significant structural brain injury to Dr. Samuel’s right hemisphere.  Despite the fact that her right carotid has occluded it appears that she has adequate collateral circulation and no evidence of ischemic cerebrovascular disease.  Her symptoms and neurologic exam are atypical and suggestive of a functional disorder.  I had a long discussion with her today regarding the possibility that stress is playing a major role in her neurologic symptoms.  I do not feel further neuroimaging evaluation is necessary. I have referred her to my colleague, Dr. John Barry, in the Stanford Psychiatry Department.  Dr. Barry has had excellent success …with similar clinical syndromes.”

[39]            On March 24, 2004, Dr.Tong wrote to similar effect. 

[40]            Dr. Samuel attended Dr. Barry’s clinic on March 24, 2004.  His note of the visit indicates:

The patient clearly has what seems to be a somatoform disorder.  The patient had a serious car accident that may have instigated this particular stress response.  We discussed this with the patient at length and have referred her to Dr. Hugh Baras for bio-feedback and ongoing individual psychotherapy. … I think given her psychopathology this incidence was a significant one and she never took any time to accommodate to the seriousness of this event.  The patient will be taking approximately 2-3 months off to hopefully recuperate and at that juncture she will be contacting Dr. Hugh Baras for continued care.

[41]            Dr. Samuel took medical leave from April 1, 2004 until July 21, 2004.

[42]            On April 14, 2004, Dr. Samuel saw Dr. Barry, who hypnotized her.  His notes state:

She got very little benefit from the hypnosis.  However, it seemed that there was a great deal of defensiveness and suspiciousness on her part as to the procedure and its utility.  We discussed an overall plan which includes neuropsychological testing.  Also the patient will be seen in her area by a pain center where she will be having biofeedback and hopefully individual counseling as well.

[43]            On May 17, 2004, Dr. Samuel returned to the UCSF Medical Center and was seen by Dr. Chagnon, an assistant professor of anesthesia at the UCSF/ Mount Zion Pain Management Center.  Dr. Chagnon formed the view that Dr. Samuel was suffering from post-stroke pain and recommended medication and biofeedback.  She concurred with medical leave for Dr. Samuel.

[44]            On May 26, 2004, Dr. Samuel returned to see Dr. Barry.  Her symptoms were unabated.

[45]            On June 8, 2004, Dr. Samuel was assessed by Dr. Karzmark, a neuropsychologist at Stanford Hospital.  He found that her results were difficult to interpret, given an apparent effort, conscious or unconscious, to exaggerate left motor dysfunction; that there was evidence for both somatic and psychological interpretations of her difficulties, with the weight of evidence toward a psychological interpretation; and that he was handicapped by her tendency to underreport psychological problems and symptoms. 

[46]            On June 14, 2004, Dr. Samuel saw Dr. Chagnon again.  Dr. Samuel felt that the treatment she was receiving was helping.  She wanted to continue with visits to the neurologist and psychologist, to continue biofeedback, and extend her medical leave.  Dr. Chagnon agreed to continued treatment and recommended extending the leave to mid-July. 

[47]            On August 3, 2004, Dr. Samuel attended the Stanford University Medical Center again, and was again seen by Dr. Albers.  Dr. Albers confirmed:

… there is no evidence of right hemispheric [injury], excellent collateral circulation, and normal cortical blood flow within the normal range in both gray and white matter structures.

On exam today … she demonstrates no objective abnormalities.  However, when focusing on specific aspects of the exam, the patient continues to demonstrate a nonphysiologic sensory examination on the left side and collapsing weakness on the left side, left pronator drift, and left slowed fine finger movements.  Of note, the patient demonstrates normal gait, but when specifically focusing on standing on toes or heels, the patient cannot stand on left toe or heel.

… We have spoken with the patient, who continues to insist that there is no psychiatric component to her symptoms. … The patient continues to insist that there is an additional study that will reveal an abnormality related to her car accident and explaining her symptoms.

… We have explained to the patient, that from a neurology stroke service perspective and from a general neurology clinic perspective, it is unlikely that any additional tests would be of benefit. … As the patient insists on finding somebody who might allow a PET scan study … the patient is being referred to the pain service for further evaluation of her pain and for discussion of possible PET imaging.

[48]            On August 30, 2004, Dr. Samuel again attended the UCSF/Mount Zion Pain Management Center. Dr. Chagnon reports:

The patient’s signs and symptoms are highly suggestive of brain stem damage … The thought at this point would be to place the patient on a narcotic … The patient will then follow up in one month to let us know the efficacy of this new regimen.

[49]            On September 10, 2004, Dr. Samuel attended the Stanford Pain Management Center.  She was assessed with central pain syndrome.  She was advised that having multiple providers could cause more harm than good and asked to decide whether she would be treated at Stanford or at UCSF.  She said that she would be treated at Stanford. 

[50]            On October 25, 2004, Dr. Samuel returned to UCSF.  Dr. Chagnon reported that Dr. Samuel had tried multiple medications without benefit.  She stated, “The patient continues to see Dr. Katherine Bowman, pain psychologist, and she feels that this is greatly benefiting her treatment at this time.  The patient attempts to avoid over-exertion, avoiding cold weather, both of which do exacerbate her symptoms.” 

[51]            I have been provided with records from two appointments with Dr. Bowman, although Dr. Samuel believes that she saw Dr. Bowman more than two times. 

[52]            In December 2004 Dr. Samuel moved from Berkeley to Mountain View.  She did not continue treatment with the Stanford or UCSF pain clinics after mid-2005.  She continued to see a family physician for other health issues. 

[53]            Dr. Samuel’s symptoms remained unchanged at the time of trial: they wax and wane.  She says that her symptoms are exacerbated by exertion and cold weather.  When her symptoms flare she suffers burning pain, weakness, and fatigue, predominantly on her left side.  When her symptoms are at their best, her left side is 80 - 85% as strong as it was before the accident.

[54]            In addition to the treatments set out above, Dr. Samuel also received physiotherapy, massage therapy, acupuncture and chiropractic treatment, with limited success. 

[55]            In 2007 she attended counselling with Robin Beresford, a marriage and family therapist, to discuss issues in her marriage and her changed life since leaving the Bertozzi lab.


[56]            By the time of trial, the weight of medical opinion concluded that Dr. Samuel had not had a dissection of her carotid artery.  Rather, since birth or early childhood she had a small right carotid artery.  The blood vessels had reconstituted so that her brain received an adequate supply of blood from the left carotid artery.  Accordingly, she had not suffered a right carotid artery dissection in the accident, and had not suffered a stroke or other ischemic event. 

[57]            However, Dr. Samuel remains of the view that Dr. Chagnon and others who diagnosed post-stroke pain syndrome are correct, that this best explains her ongoing symptoms. 

[58]            Despite Dr. Samuel’s own opinions, the psychiatrists who provided opinions to the court, Dr. Hurwitz and Dr. O’Shaughnessy concurred: Dr. Samuel’s ongoing complaints are psychiatric.   

[59]            The defendants rely on the opinion of Dr. O’Shaughnessy. In Dr. O’Shaughnessy’s opinion, Dr. Samuel had a somatoform disorder, a psychiatric illness in which the person complains of physical symptoms that do not have an underlying physical cause, but have a presumed psychological basis.  In particular, she had a conversion disorder: she had symptoms which suggested a neurological condition. 

[60]            With respect to causation, Dr. O’Shaughnessy opined:

Generally, the IQ scores of individuals who go on to post-graduate studies and in particular obtain a Ph.D. in the sciences such as chemistry are substantially higher than the IQ scores noted in Dr. Samuel.  … It is evident that Dr. Samuel obtained a post-doctoral research fellowship at UC Berkeley which I understand from the materials provided to have been a very competitive program.  She did not do as well as she had hoped.  … Quite simply, Dr. Samuel would not have been able to compete in this environment and this in turn led to understandable frustration and stress for her.

Psychiatrically, there was nothing to suggest any major signs or symptoms of psychiatric disorder in the immediate aftermath of the accident.  … The only actual symptoms of psychiatric disorder appeared to come in 2004 when she was experiencing the difficulties in coping with her fellowship program….

… In my view, the symptoms are directly related to the fact that she was in an impossible situation attempting to compete with post-doctoral students who were very intelligent and also highly motivated to work long hours. She would not have been able to compete in this environment and this led to substantial stressors. Dr. Samuel believed that her difficulties were related to the effects of the accident although it is clearly evident that they would be more likely related to intellectual resources.

[61]            In addition, in the aftermath of the accident, doctors were telling her that she had a dissection of her carotid artery, which also was a factor in Dr. Samuel’s condition:

At the core of a Conversion Disorder is in fact a false belief; i.e. the person believes that they have a physical abnormality even when one does not exist. I have little doubt that Dr. Samuel did indeed believe that not only did she have a dissection of the left internal carotid artery but that this in turn caused her complaints of fatigue and sensory impairment. … Like many individuals with a Conversion Disorder, she also refused to accept an underlying psychological reason for her symptoms and continued trying to find some test that would attribute her difficulties to an organic cause.

… it is unlikely that she would have developed the Conversion disorder if the diagnosis of carotid dissection had not occurred.  … By the same token, she would have run into the same difficulties with her work even if the accident had not occurred. … her problems with performance in the department at Berkeley have nothing to do with the Conversion Disorder or the effects of the car accident and are directly and solely related to her intellectual resources. It would have been inevitable for her to have been overwhelmed with the competitive work demands at Berkeley.

[62]            With respect to prognosis, Dr. O’Shaughnessy was of the view that her prognosis was positive.  He said that the adjustment to a different career would be difficult, but was inevitable in any event given her limited intellectual resources. 

[63]            Dr. O’Shaughnessy also testified at trial.  Shortly before giving his evidence, Dr. O’Shaughnessy reviewed a videotape of Dr. Samuel’s marriage ceremony in India in 2004.  After viewing the videotape, Dr. O’Shaughnessy concluded that at some time before August 2004, Dr. Samuel’s conversion disorder had resolved.  In his opinion, had she still been suffering from a conversion disorder, Dr. Samuel would not have, for example, held a baby on her left arm, or freely moved her left arm as she is seen to do in the video.  He remained of the view that she had had a conversion disorder which developed within weeks of the accident, and was entrenched by the misdiagnosis.  That condition resolved sometime before August 2004.  He acknowledged at trial that the accident had a role to play in her conversion disorder.  However, in his view, but for the misdiagnosis, the conversion disorder would not have developed as it did: had she been told after a thorough investigation that there was nothing wrong with her, she probably would have gone on to recover.  Dr. O’Shaughnessy remained of the view that the problems Dr. Samuel experienced at Berkeley were not related to the motor vehicle accident; that she would not have succeeded as a post-doctoral student, in any event.

[64]            The plaintiff relied on the opinion of Dr. Hurwitz.  Dr. Hurwitz agreed substantially with Dr. O’Shaughnessy as to the nature of Dr. Samuel’s complaint, but not the development or prognosis:

Dr. Samuel has an underlying psychiatric illness almost certainly a masked major depressive illness presenting with pain, fatigue … and psychogenic neurological deficits (conversion reactions).  This illness started within the first week following the motor vehicle accident. Such a psychiatric illness is occurring in the absence of a family history of psychiatric illness or a personal past history of psychiatric illness.

The motor vehicle accident is directly responsible for precipitating this psychiatric illness and did this by way of the following accident related consequences amongst others.

a.         A mild traumatic brain injury.

b.         Soft-tissue injury producing pain.

c.         Psychological trauma of the accident itself.

[At trial Dr. Hurwitz elaborated that no one of these factors necessarily caused the illness, but these were, in his opinion, the likely precipitating factors.]

Taken together the evidence is compelling that she has an underlying persistent major psychiatric illness starting within the first week post accident, that continues to the present and continues to manifest primarily as somatic symptoms as a substitute for a presumed and mostly masked depressive illness.

[65]            In Dr. Hurwitz’s opinion this condition developed well before the misdiagnosis of a carotid artery dissection:  

Dr. Samuel’s left sided sensory and motor symptoms occurred 3 weeks before she saw Dr. Spacey and persisted without a neurological diagnosis until her first MR angiogram done on 13 June 2002.  Dr. Samuel did not know for 2 months that she had a “dissection” and did not know that the carotid abnormality would be on the right side consistent with her left sided symptoms.  Her neurological symptoms were internally and unconsciously generated….

[66]            Dr. Hurwitz concluded that Dr. Samuel was totally disabled from sustained competitive gainful employment.  Her prognosis was poor: with treatment, the majority of patients are relieved of the somatic complaints, but continue to experience psychological problems, such as depression, requiring ongoing care and in some cases occasional hospitalization.  “In summary chronic conversion disorder, such as demonstrated by Dr. Samuel, usually evolves into a chronic depressive illness.  Despite treatment the majority of these patients fail to return to work.” 

[67]            Dr. Hurwitz reviewed the wedding video three times.  He saw nothing in it to change his opinion.  In his opinion, a doctor would have to examine Dr. Samuel to find the deficits that she complains of.  He noted that Dr. Samuel has never suggested that she is paralyzed: in her mind, amongst other complaints, she has a fluctuating weakness; on a good day, strength on her left side is 85% of normal.  In Dr. Hurwitz’s opinion, holding a baby on her left side or moving her left arm freely are not inconsistent with a complex somatoform disorder.   

[68]            I accept Dr. Hurwitz’s opinion regarding Dr. Samuel’s condition and its cause.  His opinion is consistent with the medical records, and with the evidence of the plaintiff, her husband and the plaintiff’s friends and colleagues.

[69]            Dr. Samuel’s condition, a complex somatoform disorder (a combination of a pain disorder, somatoform disorder NOS (organically unexplained fatigue) and conversion disorder (psychogenic neurological deficits)), was caused by the motor vehicle accident.  It developed over the days and weeks following the accident, as Dr. Samuel complained of bizarre, non-organic complaints, such as, on March 19, 2002, speaking in a barely audible whisper and being hypersensitive to exam; on April 17, feeling exquisitely tender; and by May 30 when she saw Dr. Spacey, demonstrating many non-physiological findings, such as a vibration which respects the midline (a test performed by Dr. Spacey which should have been felt all across the forehead, but which Dr. Samuel felt only to mid-way across the forehead) and total body weakness for three weeks which Dr. Spacey thought to be “highly functional in nature”.  Her complaints exceeded the physical signs. 

[70]            As early as March 15 Dr. Gisslow diagnosed psychological effects of trauma.  By March 22, Dr. Samuel complained that doctors were suggesting that she may be depressed, but Dr. Samuel rejected this suggestion.   

[71]            Initially, her physical complaints were primarily left-sided.  Over the next few weeks her complaints spread, so that by May 6, for example, she was complaining to Dr. Lloyd-Smith of pain to both sides of her face, neck, upper back, et cetera.  The complaints were still greatest on the left side.  However, on May 7, Dr. Samuel had her first experience of left-sided numbness and weakness, and as Dr. Hurwitz noted, from this point forward her neurological deficits persisted and were mostly left-sided.   

[72]            I accept Dr. Hurwitz’s opinion that Dr. Samuel’s somatoform/conversion disorder was not caused by the diagnosis of carotid dissection, that her left-sided sensory and motor symptoms occurred three weeks before she saw Dr. Spacey and persisted without a neurological diagnosis until June 13, 2002.  I accept as well Dr. Hurwitz’s opinion that:

“With this history [of misdiagnosis, including misdiagnosis of carotid artery dissection] it is understandable that Dr. Samuel is convinced that she has a post stroke pain syndrome and that only the right physician using the right diagnostic investigation will be able to identify an organic cause for her presentation. … the medical complexity of her presentation conspires with her premorbid reluctance to accept any psychological causation to create major challenges to providing Dr. Samuel with psychiatric care.”  

In other words, while the misdiagnosis did not cause the ongoing complaints, it makes treatment more difficult.

[73]            The defendants have not satisfied me that the misdiagnosis constitutes an intervening cause or novus actus interveniens.  First, as set out above, I am not satisfied that the misdiagnosis caused the plaintiff’s somatoform/conversion disorder and ongoing complaints.  Second, the investigation and diagnosis were undertaken to deal with the plaintiff’s complaints, complaints caused by the accident.  Initially, doctors thought that she may have a carotid artery dissection.  Later it was determined that she likely did not.  This is not medical negligence which could constitute a novus actus interveniens as contemplated by the cases.  Indeed, there is no suggestion that the diagnosis was negligent.  The doctors were perfectly reasonable in their investigations and diagnoses. 

[74]            I also accept Dr. Hurwitz’s opinion that Dr. Samuel’s condition had developed well before she arrived in California and was not caused by her experience at Dr. Bertozzi’s lab.  This is consistent with the medical records, described above, and with the evidence of Dr. Samuel’s colleagues and acquaintances.   

[75]            Dr. Vishaka Monga, one of Dr. Samuel’s acquaintances and a colleague at UBC, covered Dr. Samuel’s labs after the accident, took lab reports to her to mark, took groceries to her on occasion, and packed the boxes for her move to California.  She saw Dr. Samuel once or twice per month until she left in November for Berkeley.  She said that she saw no change in Dr. Samuel’s condition over the months following the accident.  Initially, Dr. Samuel had anticipated returning to the lab in short order, but she never did.  She looked tired, appeared to be in pain, limped and walked slowly.  She could not walk for more than 10 minutes.  Until her departure she remained in good spirits, and was excited about working in the Bertozzi lab.

[76]            Dana Zendrowski is in charge of the second year chemistry lab course at UBC and supervises the teaching assistants (which included Dr. Monga and Dr. Samuel).  The teaching assistants are typically responsible for two sections per week, each with a three hour lab which the teaching assistant supervises and marks.  Before the accident she found Dr. Samuel to be enthusiastic about her research and to have a passion for research beyond that normally seen in graduate students.  She did not miss meetings, was very enthusiastic, and was excited about going to Berkeley, her first choice for post-doctoral studies.  The accident occurred two weeks before the end of term. Ms. Zendrowski saw Dr. Samuel within one week of the accident.  She was moving slowly, speaking low and hesitantly, unlike her normal self.  She expected to return to the lab quickly.  Ms. Zendrowski saw Dr. Samuel from time to time after the accident and drove her to appointments and to get groceries.  Her condition did not change significantly before she left for California. 

[77]            Janelle Van Dongen is a graduate student at UBC.  Dr. Samuel tutored her from 1999 to 2001.  She became a friend of Dr. Samuel and would socialize with her as well as seeing her as a tutor.  She described Dr. Samuel after the accident as suddenly altered: her voice was softer and weaker, she looked weak, and her movements were cautious and slow.  Ms. Van Dongen was shocked by the change in Dr. Samuel.  Initially Dr. Samuel was not able to leave her apartment.  Later, when Dr. Samuel rode in the car with Ms. Van Dongen, they would have to drive very slowly as any jarring caused distress.  Over the summer there was some improvement in Dr. Samuel’s condition, but she did not return to her pre-accident condition. 

[78]            Dr. Martin Tanner was Dr. Samuel’s thesis supervisor.  Dr. Samuel worked in his lab while at UBC.  He found her to be hard working and intensely motivated.  She was a quick learner and one of his hardest working students.  She was confident and had a drive for doing science.  She completed her thesis in four years, much shorter than the usual time of approximately 5 ½ years.  She was more mature and caught on more quickly than some students.  She defended her thesis in September/October of 2002.  He provided a letter of reference for her post-doctoral applications.  He felt Dr. Bertozzi’s lab was one of the best.  He recommended Dr. Samuel to Dr. Bertozzi: “I certainly thought that she could succeed.”  She was quick, sharp, focussed, in the upper half of his students.  When she was accepted by Dr. Bertozzi she was excited, anxious to go, ready to plunge in.  She was not worried or intimidated, that was not in her personality.  He thought that she had the skills to see it through, that she would not be bothered by the competition from highly motivated, cream of the crop post-doctoral students. 

[79]            Jennifer Czlapinski Walter was a post-doctoral student at the Bertozzi lab with Dr. Samuel.  She describes Dr. Bertozzi as very supportive, encouraging.  Dr. Czlapinski Walter found working at the Bertozzi lab much less stressful than graduate school.  Dr. Samuel was in the same sub-group as she was at the lab.  They would attend weekly meetings where the various projects would be discussed.  Dr. Samuel appeared to be on an intellectual par with the others, was always very excited about her work, and did not appeared stressed about her research or science.  Physically, she was not on a par: she could not do a set of stairs in a normal fashion; she would lift one foot, then bring up the other.  Her movements were slow.  She got tired: she would get results from her experiments, then be away for a few days.  This cut into her productivity.

[80]            The plaintiff introduced the opinion of Dr. Kaushansky, a neuropsychologist.  Dr. Kaushansky conducted a neuropsychological assessment of Dr. Samuel in July 2006.  His testing showed that Dr. Samuel was functioning at a “high average” to “superior” level intellectually.  Dr. Kaushansky was of the opinion that this level of intellectual functioning was consistent with her historically high level of academic achievement, and represented her actual level of intelligence.  He considered the 2004 neuropsychological assessment from California, which suggested that Dr. Samuel’s intellectual skills were in the average range.  If this were correct, Dr. Samuel would be an “over-achiever”, one who with average intelligence achieves above average or superior grades through exhaustive attention to studies, often to the exclusion of a social life.  In Dr. Kaushansky’s opinion, the 2004 assessment was not accurate, likely due to a combination of fatigue, medication and mood. 

[81]            I accept Dr. Kaushanky’s opinion.  It is consistent with Dr. Samuel’s history and with the observations of her friends and colleagues.  Dr. Samuel worked long hours, longer than many, not because she could not otherwise keep up, but because of her enthusiasm for her subject.  Her colleagues in chemistry, as well as Dr. Martin, were of the view that Dr. Samuel had the intellectual resources to succeed.  The 2004 testing is at odds with all of the other evidence.  I conclude that it does not reflect her true abilities. 

[82]            What is Dr. Samuel’s prognosis?  Again, I accept Dr. Hurwitz’s opinion that treatment will be extremely challenging and there is no guarantee that she will respond.  If treatment is successful, she will likely be left with chronic depression and not be able to return to full time competitive gainful employment. 

[83]            The defendants argue that Dr. Samuel has failed to mitigate her damages, by not following appropriate treatment for her psychiatric condition.  I do not accept this submission.  Dr. Samuel has aggressively pursued treatment for her condition.  Her reluctance to recognize a psychiatric problem is part and parcel of her condition.  As Dr. O’Shaughnessy opined:

Like many individuals with a Conversion Disorder, she also refused to accept an underlying psychological reason for her symptoms and continued trying to find some test that would attribute her difficulties to an organic cause. Although clearly a number of doctors directly informed her that she had underlying psychological problems, I do not think that her refusal to accept this diagnosis was a conscious refusal. I think that her difficulties are unconscious in origin.

To similar effect, Dr. Hurwitz stated: “Dr. Samuel’s premorbid reluctance to accept a psychological explanation for her difficulties has been made worse by the medical complexity of her presentation.”  Specialists, such as Dr. Chagnon, as late as 2004/2005, diagnosed a physical, rather than psychiatric cause for her ongoing complaints.  In these circumstances it cannot be said that Dr. Samuel has failed to mitigate her damages by failing to follow medical advice.


[84]            Dealing first with non-pecuniary damages, the plaintiff says that the present day upper limit is $315,000.

[85]            The plaintiff argues that she has endured six years of vacillating, chronic, and disabling pain, fatigue and weakness.  She does not know what she will be able to accomplish from day to day.  Her social and recreational activities have been severely limited.  She is restricted to going on short walks and drives and sedentary activities.  The time that she spends with friends is limited because she is easily fatigued.  It is unlikely that she will be able to have children, given her current condition.  She has difficulties cooking and keeping house.  The prognosis is poor.  She is forever changed and diminished from her diligent and confident demeanour as a scientist to her current condition.  The plaintiff says that $150,000 is an appropriate award for non-pecuniary damages.

[86]            With respect to diminished earning capacity, the plaintiff seeks a to-trial diminished earning capacity award in the range of $245,000 and a future loss of capacity award in the range of $2 million.  This is premised on Dr. Samuel’s maximized potential salary of $136,365 in 2007.  This is $26,000 below the average for top ten private research university salaries and about $7,000 above the average for top public research universities.  It has been discounted with respect to future loss of earning capacity because Dr. Samuel expects that she will do some part-time, non-physical, flexible, paced work.

[87]            With respect to future care, the plaintiff provided evidence that for her to attend an inpatient stay at Dr. Hurwitz’s program at the UBC neuro-psychiatric unit as a non-Canadian, it would cost approximately $3,000 per day.  Dr. Hurwitz recommends treatment which can extend up to 24 months or even longer.  The plaintiff suggests a future care award for this treatment of $270,000, or 90 days of treatment.

[88]            The plaintiff says that her husband has assumed a great many of the heavier household tasks.  She estimates the cost of these tasks, were they provided by another, at $4,500 per year.  The plaintiff says that this is a reasonable and medically necessary cost of future care which should be provided to Dr. Samuel indefinitely, given her poor prognosis for recovery.  The plaintiff suggests that this be treated as a future care cost, rather than an in-trust award for her husband. 

[89]            The plaintiff has produced a schedule of special damages.  The net amount claimed is $4,279.53. 

[90]            The defendants argue that the plaintiff suffered mild, if any, injuries from the accident.  The defendants say that if she suffered a somatoform disorder it was not caused by the accident, that those complaints which can be attributed to the accident were mild and short lived and that the plaintiff has exaggerated her condition.  The defendants suggest an award of $10,000 should be made for all heads of damages.

[91]            The defendant argues in the alternative that if the accident caused the somatoform disorder, the disorder would likely have developed in any event because the underlying cause was the plaintiff’s inability to achieve her desired goals.  She was “an overachiever”, headed for a “meltdown” which would have happened in any event at Berkeley.  The defence argues that damages on this scenario should be limited to $35,000 for all heads of damages.

[92]            Finally, the defence suggests that if the accident caused the somatoform disorder which would not have happened in any event, non-pecuniary damages should be similar to other cases where individuals have had ongoing discomfort but are largely able to enjoy their life with little restriction.  On this scenario, the defence suggests that non-pecuniary damages should be limited to $50,000.

[93]            With respect to the cost of future care, the defence says that the maximum cost of future care should be in the range of $5,000, sufficient to cover 20 one-hour psychotherapy sessions with a registered psychologist or psychiatrist in California.

[94]            With respect to loss of income, the defence argues that there is no loss of income because the accident did not cause a somatoform disorder or, alternatively, it would have occurred in any event within two years of the accident.  Because the plaintiff was employed throughout this period, she has not lost income. 

[95]            If the court is satisfied that the plaintiff has suffered a somatoform disorder as a result of the accident which has caused and will cause ongoing loss of income, the defence suggests that an appropriate award would be $25,000 for past loss of income and $50,000 for future loss.

[96]            Finally, the defence argues that the plaintiff has failed to mitigate her damages because she has not followed medical advice.  The defence argues that she should have sought and obtained psychiatric treatment for her somatoform disorder.


[97]            I found the plaintiff to be a credible witness. She is not consciously exaggerating or simulating.  As I have explained above, I am satisfied that the plaintiff’s condition was caused by the accident.  I am satisfied that the plaintiff is not consciously or unconsciously maintaining her complaints for any type of secondary gain.  But for the accident, she would have vigorously pursued a career as a scientist and that is what she wishes she were doing now.

Non-pecuniary damages

[98]            I have considered the cases with respect to non-pecuniary damages provided by each of the parties.  In my view, $100,000 is an appropriate award for non-pecuniary damages in this case.  As I have indicated, the accident has had a dramatic impact on the plaintiff.  She is not able to pursue her life’s dream of becoming a research scientist.  She is not able to undertake any sustained activity.  Her injuries, received in the motor vehicle accident have caused her to modify all aspects of her life.  She is limited in the amount of exercise that she can undertake.  Her husband does many of the household chores. 

[99]            However, Dr. Samuel is not as disabled as are some of the individuals in the cases to which I have been referred.  She is able to cope with her complaints by limiting her activities, reducing her exposure to cold, et cetera.  Accepting, as I do, Dr. Hurwitz’s opinion, even if she is treated for her somatic disorder, she is likely to continue to suffer from depression which is likely to interfere with her enjoyment of life as well as her ability to obtain employment.

Loss of Income/Capacity to Earn Income

[100]        The principles that the court is to apply when determining a loss of earning capacity are set out in Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158 at paras. 8, 11, and 18:

The most basic of those principles is that a plaintiff is entitled to be put into the position he would have been in but for the accident so far as money can do that. An award for loss of earning capacity is based on the recognition that a plaintiff's capacity to earn income is an asset which has been taken away: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Parypa v. Wickware (1999), 65 B.C.L.R. (3d) 155 (C.A.). Where a plaintiff's permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation. What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset. In some cases, projections from past earnings may be a useful factor to consider in valuing the loss but past earnings are not the only factor to consider.

The task of the court is to assess damages, not to calculate them according to some mathematical formula: Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Once impairment of a plaintiff's earning capacity as a capital asset has been established, that impairment must be valued. The valuation may involve a comparison of the likely future of the plaintiff if the accident had not happened with the plaintiff's likely future after the accident has happened. As a starting point, a trial judge may determine the present value of the difference between the amounts earned under those two scenarios. But if this is done, it is not to be the end of the inquiry: Ryder (Guardian ad litem of) v. Jubbal, [1995] B.C.J. No. 644 (C.A.) (Q.L.); Parypa v. Wickware, supra. The overall fairness and reasonableness of the award must be considered taking into account all the evidence.

The assessment of damages is a matter of judgment, not calculation.

[101]        The plaintiff’s past and future income report assumes that were it not for the accident, Dr. Samuel would have pursued a career as a university professor in a top tier U.S. University or as a biochemist in scientific research and development.  It assumes that she would have obtained her PhD by the end of 2002, worked as a post-doctoral fellow for 2 years (2003 – 2004) and would have obtained employment as a tenure-track assistant professor with a top tier university or as a biochemist by 2005.  From 2005 onward it assumes that Dr. Samuel would have eventually advanced to become a tenured full professor or biochemist and would have continued working in this capacity through to her retirement at age 65.

[102]        Using these assumptions, the plaintiff estimates her loss of past and future income as:

A tenured university professor for a top research university:


Past income loss:

$   244,286


Future income loss:





A biochemist employed in scientific research and development services:


Past  income loss:

$   248,236


Future income loss:





[103]        Each of these assumes that Dr. Samuel will be able to work in the future on a part-time basis and will earn what an average American female with a Bachelor’s degree would earn, which totals $476,650 to age 65.

[104]        The defence takes issue with these calculations.  The defence says that the plaintiff’s potential future earnings are exaggerated in that they anticipate that she would have become employed at one of the highest paying university or industry positions in the United States and would have been less likely than average to spend time away from her occupation: in other words, that the estimates portray the rosiest possible outcome for Dr. Samuel.

[105]        I am satisfied that the plaintiff has suffered a significant loss, whether the loss is termed a loss of opportunity or a loss of capacity.  Dr. Samuel has an injury, which limits her capacity to perform certain activities and impairs her ability to earn income. 

[106]        The Court of Appeal has repeatedly warned against taking “too mathematical” an approach when assessing damages for loss of capacity.  For example, in Pallos v. I.C.B.C. (1995), 100 B.C.L.R. (2d) 260 (C.A.) at para. 43, the court stated the following:

The cases to which we were referred suggest various means assigning a dollar value to the loss of capacity to earn income.  One method is to postulate a minimum annual income loss for the plaintiff’s remaining years of work, to multiply the annual projected loss times the number of years remaining, and to calculate a present value of this sum.  Another is to award the plaintiff’s entire annual income for one or more years.  Another is to award the present value of some nominal percentage loss per annum applied against the plaintiff’s expected annual income.  In the end, all of these methods seem equally arbitrary.  It has, however, often been said that the difficulty of making a fair assessment of damages cannot relieve the court of its duty to do so.

[107]        I take heed of the defendant’s argument that the plaintiff’s calculations present a rosy picture of the plaintiff’s future, both as to the position that she was likely to have achieved and the earnings she was likely to have received, as well as the extent to which she would have participated in the workforce, protected from such events as part-time work, maternity leaves, et cetera.  However, the plaintiff’s calculations are only a means of measuring the extent of the plaintiff’s loss of capacity.  I accept Dr. Hurwitz’s opinion that Dr. Samuel is not currently capable of competitive gainful employment.  I also accept his opinion that “… chronic conversion disorder, such as demonstrated by Dr. Samuel, usually evolves into a chronic depressive illness.  Despite treatment, the majority of these patients fail to return to work.”  Accordingly, it is unlikely that Dr. Samuel will earn any significant amount over the course of her lifetime.

[108]        I am satisfied that but for the accident she would have completed her post-doctoral studies at Dr. Bertozzi’s lab in Berkeley.  I am also satisfied that following completion of her post-doctoral studies she would eventually have found work commensurate with her interests and educational background, either as a research chemist or as a university professor.  I expect that she would have worked until age 65, given her enthusiasm for chemistry and research.  It may be that she would not have been employed in a “top tier U.S. university” or as a biochemist at a top-paying institution. 

[109]        How much would she have earned?  Mr. Benning, in his report, indicates that using a 2003 American Chemical Society salary survey, biochemists with a PhD degree working in industry earned between $70,000 and $125,000 per year, which is equivalent to $80,824 - $144,828 in 2008 dollars.  Using the lowest of these numbers, $80,824, the current value of Dr. Samuel’s loss to age 65 is $1,524,000. 

[110]        Assessing her loss as best I am able, considering both positive and negative contingencies, and the overall fairness and reasonableness of the award, in my view, $1,000,000 is appropriate for Dr. Samuel’s loss of future earning capacity.

[111]        Turning now to past loss of income, again, the plaintiff’s calculations are very optimistic, assuming immediate highly paid employment.  I think it likely that without the accident, Dr. Samuel would have stayed for two years at Dr. Bertozzi’s lab, and then would have found employment at a university or lab.  This may not have occurred immediately, but I am satisfied that ultimately she would have achieved employment in her chosen area.  This, too, is a hypothetical loss, because we do not know exactly what would have happened.  Dr. Samuel had not yet completed her post-doctoral studies and achieved full employment.  This loss, too, must be given weight according to its relative likelihood: Smith v. Knudsen, 2004 BCCA 613.  Assessing this loss as best I am able, in my view an appropriate award for the loss to the date of trial is $150,000.

[112]        Dr. Samuel has earned very little since her post-doctoral studies ended and I have already considered this in fixing the award at $150,000.

[113]        The defence argues that Dr. Samuel has failed to mitigate her losses by failing to seek appropriate employment.  The defence argues that Dr. Samuel would be able to perform full-time teaching duties, that it is lab work which aggravates her symptoms.  I do not accept this submission.  Dr. Samuel has looked widely for work which she could do which would not aggravate her symptoms.  She has been largely unsuccessful.  She did some unpaid part-time work at the Technology Transfer Office at Berkeley.  She took a tax course through H & R Block from September to December 2005, and worked for H & R Block preparing tax returns from January to April 2006 working three hours per day, four days per week.  She has qualified as a real estate agent, but has had no sales, and has no listings.  She has taught herself web site design.  None of these were physically demanding or involved full-time attendance.  For the most part, they are activities performed from home, as she is able.  In my view it is not realistic at this time to suggest that Dr. Samuel is able to do full-time teaching.

Cost of future care

[114]        The plaintiff suggests an award of $270,000 for future care, to provide 90 days of treatment in Dr. Hurwitz’s program.  However, Dr. Samuel has steadfastly rejected any suggestion, including Dr. Hurwitz’s opinion, that she has a psychiatric problem.  She specifically rejected his opinion: “I just don’t agree with it”.  Although she initially indicated that she would be willing to consider taking Dr. Hurwitz’s treatment, she was referring to taking medication, not the extensive residential program which is the heart of Dr. Hurwitz’s program.  Secondly, she qualified her willingness: I would want to know more about the medications; I would want to know the risks involved with the medications; I would not want to go from physically disabled to mentally disabled (referring to the prospect of residual depression).  I conclude that Dr. Samuel at most would be prepared to consider trying other medications, but that is not what the Hurwitz program entails.  I conclude that there is no real possibility that she would take the treatment offered at Dr. Hurwitz’s clinic.  It would not be appropriate to make an award for future care that the plaintiff will not take.

[115]         I am satisfied that she will require further psychiatric care.  I accept the defendant’s approach of providing a sum for psychiatric counselling, although in my view, the plaintiff will require longer care than the defendant suggests.  I will award the plaintiff $25,000 to cover future psychiatric care.

Loss of housekeeping capacity

[116]        With respect to loss of housekeeping capacity, Dr. Samuel is not currently able to do heavy housekeeping.  The plaintiff has provided estimates of $4,400 to $6,200 per year to have these services provided.  However, if Dr. Samuel is successfully treated, I expect that she would be able to perform housekeeping duties.  Her limitations are not physical.  Assuming that treatment requires some time to effect, and recognizing that without the accident, working full-time, Dr. Samuel would not likely have performed all of these tasks herself, I will award $15,000 for loss of housekeeping capacity.

Special Damages

[117]        The plaintiff has the requested special damages of $4,279.53.


[118]        I award the plaintiff:


Non-pecuniary damages

$   100,000.00


Loss of income/capacity:





$   150,000.00


Cost of future care

$     25,000.00


Loss of housekeeping capacity

$     15,000.00


Special damages

$       4,279.53

[119]        I have not considered tax consequences, interest and costs.  If the parties are not able to agree on these amounts, they may schedule submissions before me.

“B.J. Brown J.”
The Honourable Madam Justice B.J. Brown