We are going to review a recent decision.

At the time of the collision, the Plaintiff was 29 years old when her vehicle was rearended by the Defendant.  Liability was admitted for this collision but quantum was in issue.

The Plaintiff’s history was raised in this case.  It was noted that she was a refugee from Liberia.  Difficulties of her life while residing in Liberia were raised.  She had lived in Liberia during two wars, and had experienced atrocities and war crimes.

As a result of the collision, the Plaintiff had suffered from major depressive disorder, somatic symptom disorder, anxiety, chronic pain and fibromyalgia.  The evidence of the Plaintiff’s experts was accepted by the court.  It was agreed that her pain would be ongoing for the duration of her life.  The Plaintiff also sustained an annular tear, facet joint syndrome, disc bulges, nerve root compression, multiple musculoskeletal injuries and a cognitive disorder.

Prior to the collision, and while living in Canada, the Plaintiff was a motivated and happy individual with aspirations to excel in her life personally and professionally.  She was an active member of society and led a happy family life.

After the accident, the client’s life changed dramatically.  She was not able to return to work nor her regular activities and her personal life was negatively affected.

The Plaintiff’s inability to cope with her pain resulted in a disability which prevented her from returning to work since January of 2017.  The Court reviewed the evidence and commented on the Plaintiff’s future loss of earning capacity:

[94]     Based on the evidence, I find that there is a real possibility that Ms. F. will never be able to return to work in any capacity or that any return to work will be restricted to light sedentary work. Even light sedentary work would require accommodations which would likely adversely affect her ability to compete for work in open job market.

 [95]     In assessing the future earning capacity of Ms. F., I take into account her work ethic, her drive to get ahead, her desire to get a better education and eventually become a nurse, and her desire to earn more than she was earning prior to the Accident in order that she can fully support her family but also the severity of the injuries that were caused by the Accident.

 [96]     I conclude there is a real and substantial possibility of future loss of earning capacity despite some attempts since the Accident to work on a part-time basis. In all of the circumstances, 

Also accepted by the court:

[58]         All experts agree that her injuries are chronic and the prognosis for her pain is permanent. The pain remains at a moderate to severe level more than four and a half years from the date of the Accident. All of the medical experts have diagnosed the pain of Ms. F. as resulting from fibromyalgia which is a condition that is chronic and permanent.

The Plaintiff was awarded $1,015,988. 29 in total damages, the breakdown of which is:

(a)  Non-pecuniary damages – $175,000;

(b)  Past loss of earning capacity – $73,077;

(c)  Future loss of earning capacity – $525,000;

(d)  Cost of future care – $225,000;

(e)  Special damages – $17,911.29;

Somatic Symptom Disorder

The Plaintiff suffered from depression and major depressive disorder and a diagnosis of somatic symptom disorder was established.

Common reported symptoms are:

• feeling hopeless;
• frustration;
• a lack of explanation as to why a person continues to feel pain;
• depression;
• isolation;
• guilt
• anxiety;
• decreased function;
• helplessness;

In the subject claim, psychiatrist explains what somatic symptom disorder is:

“a somatic symptom disorder, is a mental disorder which manifests as physical symptoms that suggest illness or injury but which cannot be explained fully by a general medical condition. The patient is typically excessively worried about their symptoms out of proportion to the severity of the physical complaints themselves. A diagnosis of somatic symptom disorder requires that the subject have recurring somatic complaints for at least six months.”

Some people may be more susceptible to somatic symptom disorder due to pre-existing issues such as:

• prior experiences of trauma as a child;
• limited education;
• poor coping skills;
• anxiety;
• the development of depression; and
• a lack of psychological sophistication.

In this case, the Plaintiff met the DSM-5 criteria for somatic symptom disorder.  The criteria that led to the diagnosis were:

• conviction of suffering from a serious medical condition;
• seeking treatment from multiple physicians for same symptoms,
• unresponsiveness to medical interventions,
• lack of coping skills,
• lack of self-confidence,
• lack of self-esteem, and
• inability to understand and cope with her medical diagnosis.

The Courts conclusion:

 [49]         As a result of their negligence, I am satisfied that it is appropriate for the Defendants to be responsible for a somatic symptom disorder with pain and the major depressive disorder which developed as a result of the Accident. In this regard, I rely on the decision in Yoshikawa v. Yu, [1996] CanLII 3104 (BCCA) where Justice Lambert, on behalf of the Court stated:

One of the most important principles, for the purposes of this case, is the principle that, for the purposes of assessing damages, a tortfeasor must take the person injured by the tort in the actual condition of that person at that time. This has been called the “thin skull” principle. In its application to psychological problems it has been called the “egg shell personality” application of the principle. In my opinion there is no basis for giving a more restrictive application to this principle in cases where psychological injuries are suffered than would be given in cases where only physical injuries are suffered. A predisposition to suffer psychological injury in circumstances such as those brought about in a particular case by a Defendant’s wrongful act does not relieve the Defendant of the liability to compensate the plaintiff for the injuries represented by those psychological symptoms. Such relief could only occur, as I have said, if the psychological symptoms would have occurred in any event, even without the Defendant’s wrongful act, through an application of the cause-in-fact test. Examples of the application of the “thin skull” principle to the award of damages for psychological symptoms in circumstances where there was an existing predisposition include Enge v. Trerise (1960), 1960 CanLII 260 (BC CA), 26 D.L.R. (2d) 529 (B.C.C.A.), Cotic v. Gray (1981), 1981 CanLII 76 (ON CA), 17 C.C.L.T. 138 (Ont.C.A.), Elloway v. Boomars (1968), 1968 CanLII 688 (BC SC), 69 D.L.R. (2d) 605 (B.C.S.C.), and Marconato v. Franklin, [1974] 6 W.W.R. 676 (B.C.S.C.).

[at para. 19]

[50]         I cannot conclude that the psychological symptoms of Ms. Flomo would have occurred in any event and I am satisfied that damages flowing from the major depressive disorder should follow. In this regard, see Pistruga v. Garcia, 2014 BCSC 1795.

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