The Plaintiff in Fabian v. Song, 2018 BCSC 762 suffered mild to moderate soft tissue injuries including psychological injuries and was awarded $70,000 for non-pecuniary damages. The Plaintiff’s injuries impacted his employment as a full-time painter. However, the evidence also confirms that the year following the collision of Feb. 2013, the Plaintiff’s symptoms improved significantly.
The injuries suffered by the Plaintiff included headaches, and pain to his neck, shoulder, back and stomach pain, as well as nausea, sleep disturbance and exacerbation of his adjustment disorder from symptoms of stress and anxiety post collision. However, the defence in this case argued causation as it related to the Plaintiff’s claim for psychological injury.
Causation
The test is outlined in Clements v. Clements, 2012 SCC 32:
[8] The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.
[9] The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. [Citations omitted.]
[10] A common sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss.
The motor vehicle collision occurred on February 23, 2013. The Plaintiff had numerous life stressors prior to the collision that impacted his mental health and also had addiction issues that had improved and/or resolved prior to the subject collision.
Causation was raised by the defence as it pertained to the claim for psychological injury. The evidence showed that the GP did not make any mention in his clinical records that the relapse or psychological injury was caused or triggered by the collision. However, there was sufficient evidence to confirm the Plaintiff was experiencing “low mood” including stress and anxiety as a result of the collision. The Court stated the following:
I am of the view that the Accident exacerbated Mr. Fabian’s diagnosed Adjustment Disorder. I accept that Mr. Fabian experienced significant stress and anxiety after the Accident. Case authorities have confirmed that causation is established in circumstances where the plaintiff proves, on a balance of probabilities, that the defendant caused or contributed to the injury: see, for example, Athey at para. 13. I find, on a balance of probabilities that the evidence establishes Mr. Fabian has an Adjustment Disorder as diagnosed by Dr. Karapareddy and that the Accident changed its trajectory, negatively affecting this psychological condition for a period of time after the Accident.
[137] For the reasons set out above, I find that Mr. Fabian suffered soft tissue and psychological injuries as a result of the Accident that entitles him to the following damages, totaling $113,599.25:
(1) non-pecuniary damages of $70,000;
(2) damages for past loss of earning capacity of $36,000;
(3) damages for future cost of care of $3,000; and
(4) special damages of $4,599.25.
[138] Subject to any submissions the parties wish to make on costs, Mr. Fabian is also entitled to his costs at Scale B.
“MORELLATO J.”
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