



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Thomasson v. Moeller,









2016 BCCA 14




Date: 20160115

Docket: CA42525

Between:

Tanja Thomasson

Respondent

(Plaintiff)

And

Brett Moeller,
Taurean Seib,
Loren Perraton and Robert Thomasson

Appellants

(Defendants)




Before:



The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Savage




On appeal from:  An
order of the Supreme Court of British Columbia,
dated December 31, 2014 (
Thomasson v. Moeller
, 2014 BCSC 2465,
Victoria Registry Docket 114258).




Counsel for the Appellant:



S.B. Stewart





Counsel for the Respondent:



S. Sweeney





Place and Date of Hearing:



Victoria, British
  Columbia

December 7, 2015





Place and Date of Judgment:



Vancouver, British
  Columbia

January
  15, 2016





Written Reasons by:





The Honourable Madam Justice Kirkpatrick





Concurred in by:





The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Savage








Summary:

Appeal
from an award of damages for injuries sustained by the respondent in a motor vehicle
accident in 2011. The appellant contends that the trial judge erred in failing
to draw an adverse inference against the respondent, in failing to reduce
damages to account for the respondents lack of cognitive behavioural therapy
prior to 2013, and in failing to reduce damages to account for various
contingencies. Held: appeal dismissed. The judge did not err in failing to draw
an adverse inference. It was open to him to find that the respondent did not
act unreasonably in mitigating her damages, and it was within his discretion to
weigh the potential effectiveness of various forms of treatment. His assessment
of loss of future income factored in contingencies and was within the range of
acceptability.


Reasons
for Judgment of the Honourable Madam Justice Kirkpatrick:

[1]

The appellant, Robert Thomasson, appeals from the order made in the
Supreme Court on December 31, 2014, that awarded damages to the respondent,
Tanja Thomasson, as a result of injuries she sustained in a motor vehicle
accident on January 9, 2011.

[2]

The action was commenced against several defendants. The appellant
admitted liability just prior to trial. The action against the defendants other
than Mr. Thomasson was dismissed by consent. The trial proceeded only
against the appellant on the issues of damages and causation.

[3]

There are three issues on appeal:

(a)
the
trial judges failure to draw an adverse inference;

(b)
the
respondents duty to mitigate her damages by undertaking cognitive behavioural
therapy (CBT
ˮ); and

(c)      the
application of contingencies in the award for future lost earning capacity.

BACKGROUND

[4]

On January 9, 2011, Ms. Thomasson was a passenger in a full size
pick-up truck driven by her husband, Mr. Thomasson. They were travelling
on the Nanaimo bypass. Mr. Thomasson was driving at a faster than
appropriate speed. On making a turn, he suddenly realized that the traffic
ahead of him had stopped. He collided with the back of one vehicle and came
into contact with another vehicle before coming to a stop. His truck was
extensively damaged and written off.

[5]

At the time of the accident, Ms. Thomasson was 36 years of age and married
to the appellant, with whom she had two children. She qualified to be a
licensed practical nurse in 2002. Apart from two maternity leaves, she worked
full time until she and her husband moved to Nanaimo in 2008. She then obtained
casual on-call work at the Nanaimo Regional General Hospital. At the time of
the accident, she was working full time in a temporary position.

[6]

It is undisputed that Ms. Thomasson sustained injuries to her neck
and back and bruising to both knees. She had low back pain and headaches, neck
pain, and upper back and shoulder pain. The trial judge found that her
condition was chronic and expected to persist over a very long time
ˮ. Ms. Thomasson also
experienced depressed mood, had difficulty sleeping, and complained of nausea,
fatigue, poor memory and dizziness.

[7]

It is also undisputed
that Ms. Thomasson undertook many forms of therapy and treatment for her
injuries including massage therapy, physiotherapy, chiropracty, acupuncture,
and exercise. The judge found that she sought out and participated in the
treatments that were recommended for her, but none were particularly effective
in spite of intense effort on her partˮ.

[8]

What is disputed is the
course of her psychological treatment. The appellant contends that Ms. Thomasson
failed to take CBT at an early opportunity, which, the appellant contends, consequently
delayed her recovery from the injuries sustained in the accident.

[9]

In the months following
the accident, Ms. Thomassons family physician, Dr. Collins, noted
that her recovery was impeded by her poor mood and her frustration with the
changes in her life and continuing pain.

[10]

On May 25, 2011, at the
request of Ms. Thomassons counsel, Dr. Corney, a neuropsychologist,
conducted a medical-legal assessment. Dr. Corney noted that
anti-depressant medication had a positive impact on Ms. Thomassons mood
and functioning but that:

significant symptoms of
depression remain, and it is therefore suggested that the pharmacological
treatment be supplemented with a psychological intervention. Specifically, it
is recommended that she be referred to a psychologist for cognitive behavioural
therapy, as a large body of research has demonstrated that this type of therapy
is effective for treating depression and enhancing coping skills.

[11]

Commencing in the summer of 2011 and continuing until December 2011, Ms. Thomasson
received counselling from a psychologist, Dr. Jones.

[12]

There was no firm evidence as to whether Dr. Jones knew of Dr. Corneys
recommendation for CBT. Ms. Thomasson was unsure whether she provided a
copy of Dr. Corneys report to Dr. Jones. She believed that Dr. Jones
had a copy but did not recall giving it to her. The judge concluded that Dr. Jones
likely did not receive this report. The judge also found that there was no
evidence that Ms. Thomasson ever received CBT from Dr. Jones.

[13]

Ms. Thomasson attempted a graduated return to work in December 2012.
This return lasted only two weeks as she could not manage the work without
considerable pain.

[14]

She then began a series of sessions with another psychologist, Dr. Tessier.
The judge found that Ms. Thomasson found these sessions helpful but
noted that, as there is no report of Dr. Tessier in evidence, it is not
known what therapy was undertaken or what Dr. Tessier concluded about her
progress
ˮ
.

[15]

Ms. Thomasson was re-assessed by Dr. Corney on March 22, 2013.
He reported to her counsel:

At the time of my 2011
assessment, it was my recommendation that Ms. Thomasson be referred to a
psychologist for cognitive behavioral therapy, a form of treatment that is
effective for treating depression and enhancing copying skills. Information
from the current assessment indicates that Ms. Thomasson did attended [
sic
]
several sessions of psychotherapy with a psychologist, but the primary focus of
those sessions appears to have been on developing and reinforcing strategies
for pain management. This was certainly an important treatment goal and appears
to have been effective in helping Ms. Thomasson cope with her pain
symptoms. However, it is my opinion that her symptoms of depression have not
been adequately treated and that clinically significant anxiety symptoms are
now present as well. Ms. Thomasson may experience some spontaneous
resolution to her symptoms as she continues to re-engage in work and other
pre-accident activities, but it is my opinion that she would benefit from a
referral for additional sessions of psychotherapy, with a primary focus being
on treating her depression and anxiety symptoms.

[16]

In June 2013, Ms. Thomasson
had further psychological counselling from Dr. Tessier, including a form
of CBT, which she testified was beneficial.

[17]

At the request of counsel, two psychiatrists, Dr. Semrau (for the
defendant) and Dr. OBreasail (for the plaintiff), conducted independent
medical examinations in October and November 2013.

[18]

Dr. Semrau recommended that Ms. Thomasson take counselling
utilizing evidence-based methods such as cognitive-behavioural therapy
ˮ. He reported to defence
counsel:

Ms. Thomasson indicated she started to see psychologist

Dr. Anne-Marie Jones in the summer of 2011, working on various
psychological issues including acceptance, life coping strategies (as
alternatives to the use of exercise pre-MVA), psychological pain management
strategies, etc. Ms. Thomasson believes that this therapy had been going
well, but Dr. Jones then semi-retired.

Therefore Ms. Thomasson was since transferred to the
care of psychologist Dr. Tessier. They have had 5-6 sessions so far
roughly every 3 weeks, but Ms. Thomasson stated it has been recommended
that this be increased to weekly sessions.
She stated they have been working
on generally dealing with her physical and emotional symptoms and coping
strategies, including using (what sounded to the writer like)
cognitive-behavioral therapy.
She does not believe they have yet been
utilizing psychological pain management strategies as yet, but Ms. Thomasson
seemed to think this was part of their future therapeutic plan.

[Emphasis added.]

[19]

Dr. OBreasail recommended that if possible a
cognitive/behavioural technique should be used to specifically address her
chronic pain, her depression and anxiety, and the link therein
ˮ. Dr. OBreasail
acknowledged under cross-examination that Dr. Corney had recommended CBT
in 2011, but noted that Ms. Thomasson had received an array of psychological
treatments:

Q         That treatment, which wasnt the treatment that
was recommended, it wasnt treatment as effective likely as the one that was
recommended, had given her some benefit?

A          She certainly had benefited from that, yes.
And in its own right its a good treatment focusing on pain management.

Q         Yes, but cognitive behavioural therapy is more
than pain management, its to treat the depression, correct?

A          That is correct.
But in reviewing Dr. Jones notes I believe that she did also treat
depression. It wasnt just the pain management. She didnt isolate the two, because
its impossible, as he indicated earlier, the two are so clearly intertwined
that you cannot treat one without the other.

[20]

Dr. OBreasail also conceded that if Ms. Thomasson had
received CBT at the outset, likely it would have pushed things on a bit and
things would have turned out probably better sooner
ˮ.

[21]

At trial, Ms. Thomasson
advanced the position that she is likely to be disabled from full-time work as
a licensed practical nurse for the remainder of her working life.

[22]

On the issue of loss of
future income earning capacity, an occupational therapist, Min Trevor Kyi,
testified that Ms. Thomasson was able to work as a licensed practical
nurse, with a range of work tolerance between 20 to 40 hours per week, with the
lower end of the range being relatively tolerableˮ.

[23]

An economist, Robert
Wickson, provided a loss of earning capacity report which took into account
unemployment, possible part-time work, and non-participation in the labour
force in the calculation of present value discount factors.

TRIAL REASONS

[24]

In reasons indexed at 2014 BCSC 2465, the judge reviewed the evidence in
detail, including (with one omission) the foregoing summary of the expert
evidence. The judges central finding was as follows:

[40]      The
plaintiff is relatively young and was fit and active prior to the accident. She
enjoyed regular exercise and fitness workouts as well as various activities
with her family. Her injuries can be described as serious soft tissue injuries
that have developed into chronic pain syndrome. I accept the evidence that
there is a strong likelihood that she will continue to be affected by her
injuries for the rest of her life. She experiences daily pain and reduced
energy. Her ability to work at her profession is limited. She is not able to
participate in the program of fitness that she had followed and enjoyed prior
to the accident.

[25]

The judge specifically addressed the three issues raised on appeal. The
first issue concerned an adverse inference that the defendant asked the judge
to draw by reason of Ms. Thomassons failure to call Dr. Jones as a
witness. The judge addressed this issue as follows:

[129]    The defendant points out that there
is no evidence from Dr. Jones and the defendant submits an adverse
inference should be drawn. The defendant said that initially, the plaintiff
testified that she had provided Dr. Jones with a copy of Dr. Corneys
report. The inference was that Dr. Jones was likely aware of the
recommendation for cognitive behavioural therapy, but decided against it.
However, under cross-examination, the plaintiff was less sure and said at some
point that she did not recall giving Dr. Jones a copy of Dr. Corneys
report and she did not know if anyone else had done so.



[131]    Dr. Jones was apparently
listed as a potential witness, but was not called. The defendant says her
evidence may well have shed some light on the issue of cognitive behavioural
therapy, most importantly whether she did receive Dr. Corneys report, and
what type of therapy she delivered.



[133]    The
defendant relies on two cases:
Jones v. Trudel,
2000 BCCA 298 and
Zawadzki
v. Calimoso
, 2011 BCSC 45 at para. 149. The adverse inference
suggested respecting Dr. Jones seems to be that she did not administer
cognitive behavioural therapy or rejected its appropriate use. There is no
evidence that the plaintiff has ever received cognitive behavioural therapy for
[
sic
] either Dr. Jones or Dr. Tessier. I do not see how
drawing such an adverse inference advances the analysis in any way.

[26]

I pause to note that the judge appears to have misapprehended the
evidence as to whether Ms. Thomasson received CBT from Dr. Tessier.
As Dr. Semrau stated in his November 2013 report, it sounded to him that
Dr. Tessier had treated Ms. Thomasson with CBT.

[27]

The second issue, the alleged failure to mitigate, was answered as
follows:

[134]    As to the plaintiffs failure to
mitigate her loss by failing to take cognitive behavioural therapy, I am not
inclined to make such a finding. The law in this area is not controversial. The
leading cases are
Janiak v. Ippolito
, [1985] 1 S.C.R. 146 and
Chiu v.
Chiu
, 2002 BCCA 618. In
Chiu
at para. 57, the court said:

The onus is on the defendant to prove that
the plaintiff could have avoided all or a portion of his loss. In a personal
injury case in which the plaintiff has not pursued a course of medical
treatment recommended to him by doctors, the defendant must prove two things:
(1) that the plaintiff acted unreasonably in eschewing the recommended
treatment, and (2) the extent, if any, to which the plaintiffs damages would
have been reduced had he acted reasonably. These principles are found in
Janiak
v. Ippolito
, [1985] 1 S.C.R. 146.

[28]

The judge concluded that Ms. Thomasson had
not behaved unreasonably in the manner alleged by the defendant. He stated:

[136]    Here, the plaintiff sought out and
participated in a wide variety of therapies. She was very proactive in trying
to find a treatment that worked for her. The evidence indicates and I accept
that she had [
sic
] at all times did her best to recover from the
injuries so she could return to work. She wanted to work because she wanted to
build the necessary seniority to obtain a full-time position along with the
associated benefits of such a career. She wanted to recover because she was
extremely active in recreational sport and with her family life.

[137]    I do not find that she acted
unreasonably in failing to take cognitive behavioural therapy. She was taking
other therapy and was showing some improvement. The defendant accepts that he
must prove that the plaintiff acted unreasonably in failing to undertake the
recommended treatment and says that the defendant must go on to prove that
there was a possibility that the course of treatment of cognitive behavioural
therapy would have improved the plaintiffs recovery. The defendant submits
that it is not necessary to prove that her condition would definitely have been
improved or even to prove on a balance of probabilities.

[138]    The language of other cases uses
the words likely as in she would likely have improved. However, in my view,
defendants counsel sets the bar too low when he submits that all the defendant
must show is a possibility her condition would have been improved. Even if I am
wrong in that conclusion, it seems to me that the evidence here is at best a
suggestion that it might have caused an improvement, not that it would have.

[139]    Obviously,
when dealing with psychotherapy or psychiatry, there is a great deal of room
for conjecture as to what might have happened had a particular course of
therapy been undertaken. In this case, the plaintiff sought and accepted many
types of therapy in what I find was a genuine effort to recover her
pre-accident condition. I do not find that the evidence satisfies me that there
was even a likely improvement possible as a result of cognitive behavioural
therapy. At best, it suggests that it is a therapy that had some possibility of
being effective. I do not accept that the plaintiff has failed to mitigate her
damages by not taking cognitive behavioural therapy.

[29]

In addition to the argument that Ms. Thomasson failed to mitigate
her loss by not taking CBT, the defendant also alleged that she should have
sought workplace accommodation. The judge addressed that submission as follows:

[140]    The defendant also submits that the
plaintiff should have sought a workplace accommodation so that she could have
returned to work as an LPN with duties that were appropriate to her condition.
The defendant called Mr. J. W. Rose who is the manager of disability
management at the Vancouver Island Health Authority. (VIHA) He gave evidence
that the plaintiff had not made any request for work accommodation.



[144]    Applying
the analysis in
Janiak v. Ippolito
and the cases referred to above, I am
not able to say

on the evidence before me that it was unreasonable of
the plaintiff not to apply for workplace accommodation. It does not appear that
anyone at VIHA advised her of the policy or gave her any direction or
information on the issue. There is nothing in the evidence to suggest the
plaintiff was, or should have been aware of the possibility of an
accommodation. Also, given the nature of the work of an LPN, it does not seem
likely that it would have been easy to find the kind of accommodation the
plaintiff required. The plaintiff can do the work of an LPN, but only for a
reduced length of time. In all of the circumstances I find that the plaintiff
has not failed to mitigate her loss by seeking a workplace accommodation.

[30]

The third issue is that the judge erred by failing to reduce damages for
the contingencies that Ms. Thomasson would obtain full-time work in the
future, either due to recovery or by obtaining accommodations at her workplace.

[31]

The judge approached the question of contingencies with the relevant
case law in mind:

[96]      As
noted in
Gregory v. ICBC
, 2011 BCCA 144, an award for future losses
requires a comparison between the plaintiffs likely future income had the
accident not happened, to be compared with the plaintiffs future post-accident
period. In doing so, I must determine how long the plaintiff would likely have
worked before retiring and the impact of various contingencies that may have
impacted the course of her life.

[32]

The judge found that the medical opinions supported the presence of a
disability that restricted or limited Ms. Thomassons ability to work full
time and that there was unlikely to be much improvement in her ability to work
as a licensed practical nurse.

[33]

The analysis that resulted in an award of loss of future income of
$324,000 is set out in the reasons as follows:

[99]      In this case, the plaintiff was
qualified and well experienced as an LPN. She was a hard worker and well
regarded by her peers and supervisors. I have concluded that she would have
acquired a full-time permanent position by January 1, 2012 and as a result, she
would have had a secure position in a health care profession. She had
established her family and home and was secure in both. I find she would have
worked full-time until likely retirement age at 65. I find that given two
incomes, the likely pensions associated with those employers, and given the
plaintiffs disciplined and determined nature, she will be able to work
two-thirds of full-time or 25 hours per week based on a week of 37.5 hours. I
apply the finding that full-time salary for an LPN equals $60,000 per year. The
result is an annual income of $39,999.99 at two-thirds time, which I will round
up to $40,000. That results in an annual loss of income of $20,000 per year
commencing in the year 2015.

[100]    Using
the factors set out in Table 2 of the revised calculations of Mr. Wickson
(Discount factors allowing for contingencies), I apply a factor of 16.200 times
$20,000 for a total loss of future income of $324,000. I have used the revised
calculations to reflect the discount factors under the
Law and Equity
Regulation
352
/
81. That regulation is in effect at the date of the
judgment and in my view is appropriate even though it was not in effect as at
the date of the trial. Therefore I award the plaintiff $324,000 as the loss of
her future income.

DISCUSSION

A.       ADVERSE INFERENCE

[34]

I first observe that [w]hether an adverse inference is drawn from
failure to call a witness is a question for the trier of fact
ˮ:
Buksh v. Miles
, 2008
BCCA 318 at para. 33. Nor is a judge bound to draw an adverse inference
from the failure of a witness or party to testify:
Weeks v. Baloniak
,
2005 BCCA 193 at para. 12.

[35]

The law relevant to
adverse inferences was helpfully summarized in
Zawadski v. Calimoso
,
2011 BCSC 45, where Mr. Justice Voith stated:

[149]    An
adverse inference may be drawn against a party if, without sufficient
explanation, that party fails to call a witness who might be expected to
provide important supporting evidence if their case was sound:
Jones v.
Trudel
, 2000 BCCA 298 at para. 32. The inference is not to be drawn if
the witness is equally available to both parties and unless a
prima facie
case is established:
Cranewood Financial v. Norisawa
, 2001 BCSC 1126 at para. 127;
Lambert v. Quinn
(1994), 110 D.L.R. (4th) 284 (Ont. C.A.) at 287.

[36]

The appellant contends that the judge misinterpreted the adverse
inference which the defence sought to be drawn from Ms. Thomassons
failure to call Dr. Jones. The judge understood this inference to be that Dr. Jones
was likely aware that Dr. Corney had recommended CBT but decided against administering
it. The appellant now frames this inference as follows: that Dr. Jones did
not provide CBT because she was unaware of Dr. Corneys recommendation.

[37]

In my opinion, any adverse inference concerning Dr. Jones failure
to provide CBT to Ms. Thomasson, no matter how that inference is framed,
is of little consequence in the context of the judges findings as a whole. As
I will go on to discuss, the significance of CBT in Ms. Thomassons care
was, as the judge found, overwhelmed by the wealth of evidence that she
undertook the treatments that were recommended by her care providers, which did
not include Dr. Corney. The judge did not accept that Ms. Thomasson
acted unreasonably in failing to take CBT. The force of that conclusion is only
strengthened by the fact that Ms. Thomasson did indeed receive CBT from Dr. Tessier.

[38]

Setting this overriding concern aside, it seems perverse that, given all
of the circumstances, the appellant now contends that the judge erred in
failing to draw an adverse inference from Dr. Jones failure to testify:

(a)

Dr. Jones was initially listed as a witness in the plaintiffs case
but evidently refused to testify. Even so, the ability to call Dr. Jones
as a witness was available to both parties.

(b)

Ms. Thomassons counsel received consultation reports from Dr. Jones
but these reports were not prepared for medical-legal purposes. At trial,
counsel for the defendant successfully objected to the admission of these
reports on the basis that they did not conform to the expert evidence rule.

(c)

The defendants argument in favour of an adverse inference was advanced by
way of written submissions at trial. In my view, these written submissions did
not frame, at least in a coherent form, the adverse inference that the
appellant now says was advocated for at trial. It is therefore not surprising
that the judge may have misapprehended the inference which the defendant sought
to be drawn.

[39]

It is also, in my opinion, a leap in logic in these circumstances to ask
the court to infer that Dr. Jones did not provide CBT
because
she
did not receive Dr. Corneys report. This proposition rests, in part, on
the implication that it was Ms. Thomassons obligation (or her counsels)
to ensure that Dr. Jones received Dr. Corneys report. In my opinion,
such an implication should not be sustained. Dr. Corney was retained by
plaintiffs counsel to provide a medical-legal report. He was not a treating
physician whose recommendations Ms. Thomasson was obliged to follow, nor
was she obliged to tell her treating psychologist, Dr. Jones, of Dr. Corneys
recommendation for CBT.

[40]

I would not accede to this ground of appeal.

B.       MITIGATION

[41]

It is trite law that the question of whether a refusal of treatment is
reasonable or not is a question for the trier of fact:
Janiak v. Ippolito
,
[1985] 1 S.C.R. 146 at 172. It is similarly trite law that an appellate court
cannot interfere with a trial judge's finding of facts unless a palpable error
leading to a wrong result has been made by the trial judge
ˮ:
Housen v. Nikolaisen
,
2002 SCC 33 at para. 4.

[42]

As can be seen from the
judges reasons, he was guided by the authorities that required the defendant to
prove two things: that Ms. Thomasson acted unreasonably in not taking CBT,
and the extent to which her damages would have been reduced, if at all, had she
acted reasonably.

[43]

Ms. Thomasson agreed in cross-examination that she received Dr. Corneys
report some time in 2011. She read the report and its recommendations. She
could not recall if she gave Dr. Jones a copy of Dr. Corneys report.

[44]

In direct examination, Ms. Thomasson described the treatment that she
received from Dr. Jones. She was not cross-examined as to whether, in
2011, she appreciated the distinction between CBT and other forms of
psychotherapy, or whether, as the defendant contended, she did not receive CBT
from Dr. Jones.

[45]

When, in re-examination, her counsel attempted to have Ms. Thomasson
elaborate on whether she did CBT exercises with Dr. Jones, counsel for the
defendant successfully objected to it as not arising from his
cross-examination. As a result, the judge was left with an inadequate record of
the specific nature of Dr. Jones treatment.

[46]

Given Ms. Thomassons concerted efforts in obtaining treatment, it
seems highly unlikely that she would have knowingly refused a treatment that
was recommended to her. As the judge found, Ms. Thomasson at all times
did her best to recover from the injuries so she could return to work
ˮ.

[47]

It is clear the judge did not accept that Ms. Thomasson acted
unreasonably in failing to take CBT. While he was mistaken that she had not
taken any CBT, this is a harmless error in the circumstances. He was persuaded
that Ms. Thomasson was highly motivated to recover her health and, as the
defendants witness, Dr. Semrau, observed, had undertaken generally appropriate
mental health treatment.

[48]

The appellant further
contends that the judge misconceived the evidence as to CBTs
efficacy.
The judge found that, at best, there was some
possibility
that CBT would
be effective. The appellant submits that CBT is the gold standard
psychological treatment for individuals such as Ms. Thomasson and that early
intervention with CBT would have increased the
probability
of
improvement, relying especially on the evidence
of Dr. OBreasail.

[49]

In my opinion, Dr. OBreasails
evidence as to the probable course of Ms. Thomassons recovery was more
nuanced than described by the appellant. In cross-examination, Dr. OBreasail
gave the following answers:

Q         All right. The fact that she got better without the
treatment just means             that she'd almost certainly got even better
faster with the treatment?

A          Yes, but again, treatment of chronic pain and
depression is very -- you know, its complex. You need many different forms of
treatment modalities. My understanding is that she engaged in physiotherapy,
she had massage therapy, I believe she had chiropractic and she had individual
counselling. She saw her general practitioner on a regular basis. She was on
medications. So she had multiple treatments. I agree with you though that if she
had the cognitive behavioural treatment at the outset, likely it would have
pushed things on a bit and things would have turned out probably better sooner,
I agree.



Q         So you remove the depression, you enhance the
effectiveness of the therapy, and thats why you get a virtuous circle when you
have both psychotherapy and physical therapy going on?

A          I think its far
too simplistic to say to remove the depression. The reason she is depressed is
because of the chronic pain and associated difficulties that one gets with
chronic pain.

[50]

It was within the judges discretion to accord the appropriate weight to
the various modalities of treatment, including CBT, taken by Ms. Thomasson.

[51]

In my opinion, it cannot be said that the judge made a palpable error in
his findings of fact with respect to mitigation. The burden was on the
defendant to establish that the wide variety of therapies that Ms. Thomasson
underwent did not satisfy her obligation to mitigate her damages. It was open
to the judge to find that this burden was not met.

[52]

I would not accede to this ground of appeal.

C.       CONTINGENCIES

[53]

The judge calculated Ms. Thomassons lost income earning capacity
by assuming a loss of $20,000 per year and then multiplying that figure by
16.2000, the economists factor for future wage loss to age 70. That factor
included contingencies for general market contingencies and added the value of
employee benefits. The factor also included contingencies for voluntary
withdrawal from the workforce (including disability and unemployment) and
part-time work.

[54]

The appellant contends that there was evidence before the judge that,
with CBT, Ms. Thomassons recent improvement, and the possibility of
workplace accommodation, there was a prospect that she would be able to return
to full-time work. The appellant submits the judge erred in giving no allowance
for that contingency.

[55]

Ms. Thomasson submits that the judge considered and rejected the
contingency advocated by the appellant. As the judge found, Ms. Thomasson
attempted to increase her hours of work, but her symptoms worsened. The judge
found that her work aggravated her injuries, and that there was inadequate
evidence as to the availability of accommodation in her work as a licensed
practical nurse. He ultimately found that she would not be able to increase her
hours of work.

[56]

Further, as Ms. Thomasson points out, the judge used a multiplier
that allowed for contingencies that were inapplicable to Ms. Thomasson

for example, that she would voluntarily
choose to work part time, when the evidence was that she has, throughout her
working life, always sought full-time work. The judge also assumed in his
calculation that Ms. Thomasson would work 25 hours per week when the
evidence suggested that she could only tolerate an average of 22.1 hours per
week in 2013.

[57]

In these circumstances, I consider that the judges assessment of loss
of future income was within the range of acceptability. Although the judge did
not recite every contingency accepted or discarded, when one reads the reasons
as a whole, it is clear that he was alive to the factors that affected the
award.

[58]

I would accordingly not give effect to this ground of appeal.

CONCLUSION

[59]

I would dismiss the appeal.

The
Honourable Madam Justice Kirkpatrick

I agree:

The
Honourable Mr. Justice Frankel

I agree:

The Honourable Mr. Justice
Savage


