Post-Traumatic Stress Syndrome & Legal Implications in Personal Injury Claims -

Case Studies Presentation by
Rose Keith, BA JD
Vancouver Personal Injury Lawyer
at
GVLNC Conference - November 1, 2013

To date in 2013 there have been 4 decisions concerning PTSD in the British Columbia Supreme Court. Those cases are reviewed below to provide the reader with an understanding of the way in which PTSD is dealt with in British Columbia Courts.

• PTSD from assault (beating) - awarded $50,000 non-pecuniary damages
• PTSD from car accidents - Trial Judge awarded $110,000 for non pecuniary damages.
• PTSD from car accident - Trial Judge awarded $100,000 for non pecuniary damages
• The Trial Judge found that the Plaintiff was at fault for the accident so he did not proceed to an analysis or quantification of the evidence regarding damages.

Plishka-Humphreys v. Bolen 2013 BCSC 1298

This case involved an assessment of damages following an assault which took place on July 2, 2004 when the Defendant repeatedly punched the Plaintiff in the head and face. The Defendant plead guilty to a charge of aggravated assault and was sentenced to 30 days to be served on weekends plus probation.

At the time of the assault the Plaintiff was 13 years old. He was out with some friends, one of whom shot a ball bearing at a passing car. This ball bearing struck the passenger side window of the Defendant’s vehicle which then shattered.

The Plaintiff and his friends fled to the woods and hid. While he was hiding the Plaintiff heard the Defendant and another individual that they were going to “kill them” and “rip their heads off”.  When they found the Plaintiff he said he was sorry and that he would pay the damages.

At trial the Plaintiff testified that he was very frightened because he had never been involved in a fight before. As the Defendant repeatedly struck him, the Plaintiff was in and out of consciousness and thought that he was going to die. The Plaintiff also saw his friend get punched. The Plaintiff ran away from the scene of the assault and was crying for help when the Defendant again came up to him and told him to shut up. The Plaintiff was taken to hospital where he remained for 2 ½ days.

With respect to the effect of the assault on the Plaintiff, the Trial Judge found as follows:

The Plaintiff was greatly affected by the assault. He became very anxious and he was upset that his father was angry at the Defendant. The Plaintiff was ashamed for what he did with respect to causing upset to his family. His mother was very nervous, described by him as a nervous wreck. He said they still cry when they recall the assault.

The Plaintiff was depressed. He had dark feelings about being a hardship to his family. He tried to hide his emotions and became very passive.

For the first two months he did not leave the home and only started to associate with his friends shortly before returning to school in September.

After the assault he suffered night terrors. His right eye affects his ability to see and he had headaches for weeks following the assault.

The medical evidence in the case relevant to PTSD included a neuro-psychological report of Dr. Jeffrey Martzke, who is a retired psychologist. Dr. Martzke opined in part as follows:

Dylan reports current and past symptoms that meet the DSN-IV Diagnostic criteria for post-traumatic stress disorder. The symptoms endorsed in the current interview are consistent with traumatic stress disorder. The symptoms endorsed in the current interview are consistent with those reported during the assessment of Ms. Binnie of Children and Youth Mental Health. Consequently,, Ms. Binnie also diagnosed PTSD at the time of her evaluation. My impression is that the severity of pre-existing, avoidance and arousal symptoms has declined over time, but based on my current assessment Dylan continues to meet diagnostic criteria PTSD. In this regard, Dylan might appropriately be characterized as being in partial remission. There is no history of PTSD or other significant psychiatric prior to the assault and by all accounts Dylan appears to have been capable, healthy and resourceful individual premorbidly. He has some prior life challenges, including loss of contact with his biological father, but these did not result in marked psychological disturbances and are unlikely to have significant factors in the onset of PTSD. PTSD appears to have had it onset shortly following the assault and re-experiencing and avoidance symptoms were consistently relayed in content to salient aspects of the assault. On a balance, it appears likely that diagnosed PTS is a result of the assault. That is to say, it is unlikely Dylan will have developed and suffered from PTSD over the past five years were it not for the assault of July 2004.

Dylan does not currently meet diagnostic criteria for major depression.

Research literature suggests individuals exposed to trauma in childhood are at increased risk of anxiety and depressive disorders as adults. Owing to this assault and the subsequent PTSD, Dylan is likely to be more vulnerable to the assault and the subsequent PTSD, Dylan is likely to be more vulnerable to the effects of stress and trauma in the future. It is possible that life events that would have caused only minimal and transient symptoms prior to the assault may cause exacerbation/return of the PTSD symptoms and development of related anxiety or depressive disorders owing to protracted PTSD.

In addition to the PTSD, the Plaintiff suffered a permanent injury to his right eye resulting in double vision and a risk of glycemic. He also suffers from anxiety and thoughts of suicide and he is more vulnerable to further exacerbation of his PTSD. He also lost a tooth in the course of the assault. He was awarded $50,000 for non pecuniary damages.

Vander Maeden v. Condon 2013 BCSC 1389

The Plaintiff was injured while he was a passenger in a motor vehicle that was struck broadside by another vehicle as it was making a left turn across the highway. The accident occurred on March 20, 2009. The Plaintiff was involved in a second accident on May 5, 2011 while he was a pedestrian. As he was walking he was struck by a vehicle backing out of a driveway.

In the first accident the Plaintiff struck his head against the passenger door window as well as the front windshield. He was descried as fading in and out of consciousness.

The Plaintiff’s health prior to being involved in these accidents was a significant factor in the trial. The Trial Judge found that just prior to the first accident the Plaintiff was suffering from the following:

• Chronic pain in his back as a result of a crushed disk;
• Chronic pain in both legs with osteoarthritis in his knees;
• Chronic pain in his shoulders;
• Chronic arthritic pain in his hands; and
• Depression and sleep loss.

With respect to symptoms relating to PTSD, the Trial Judge described the Plaintiff’s evidence as being that after the first accident his self-confidence began diminishing and he started to experience anxiety and fear of being on a roadway or in a public place. He was described as experiencing a growing sense of frustration, anger and depression.

The evidence with respect to the existence of PTSD came from Dr. Desmond Coen, a retired psychologist with a specialty in neuropsychology. His opinion was in part as follows:

Second Mr. Vander Maeden meets diagnostic criteria for PTSD, chronic type. He remains hyper-vigilant and distrusting in a variety of driving situations, has disturbed sleep and intrusive recollections of his accident, and is prone to angry and irritable outbursts. Earlier in his recovery he reported more PTSD symptoms, including more request bad dreams to the point he awoke with soaked night wear. Despite these limited improvements in some select symptoms, he continues to meet sufficient diagnostic criteria to qualify for a PTSD diagnosis. Given the severity of his prior MVA, and the tragic loss of his first wife, his threshold to PTSD may have been lower prior to the accident in question, but he was functioning well psychologically in terms of mood, sleep and productivity, so it appears there was no residual PTSD from the first accident.

The Trial Judge explained the legal principles of causation and concluded as follows:

I accept that Mr. Vander Maeden’s pre-existing physical conditions made him unusually susceptible to injury and was to a certain degree someone with a “thin skull”. In this regard, I find Mr. Vander Maeden suffered an exacerbation of the chronic pain he had in his back, shoulders and legs as a result of Accident #1. He also suffered an exacerbation of his depression and mood disorder, resulting in the diagnosis of PTSD. Accident #1 also caused new physical ailments for Mr. Vander Maeden.

The Trial Judge awarded $110,000 for non pecuniary damages.

Ahonen v. Thauli 2013 BCSC 1607

This case concerned the Plaintiff’s claim for damages as a result of injuries that she suffered in a motor vehicle accident on April 17, 2009. At the time of the trial, the Plaintiff was 45 years of age, married and the mother of an 18 year old daughter and 15 year old twins. The accident occurred on King George Boulevard in Surrey and happened when the Defendant without warning turned left and drove into the Plaintiff’s vehicle. There was no intersection at the location where the Defendant turned left and the Plaintiff did not anticipate him doing so.

The Plaintiff testified that after the accident she was scared and shaking. She called 911 from the scene of the accident but was too shaken to answer questions. An ambulance attended the scene as did the fire department. They had to use the jaws of life to remove her from the vehicle. The Plaintiff’s husband attended at the scene of the accident and he described her as being “white and very scared”:. He said that her hands were shaking and she was almost crying.

The expert evidence relevant to PTSD was given by Dr. Janke, a forensic psychiatrist. Dr. Janke’s opinion was as follows:

Ms. Ahonen did have significant driving anxiety immediately following the motor vehicle accident. She undertook a self-directed desensitization program which involved deliberately driving through the accident site. As a result, Ms. Ahonen has persisting driving anxiety that does not reach a level where a formal diagnosis of Post-Traumatic Stress Disorder could be made. She does have persisting situational anxiety and can experience reliving if there is sufficient triggering event.

Ms. Ahonen should continue her antidepressant medication. She had preexisting anxiety symptoms and it is my opinion that more likely than not she would have used the Wellbutrin on an ongoing basis. The development of anxiety symptoms following the motor vehicle accident in my opinion has resulted in the need for increased dose and certainly maintaining the increased dose for an extended period of time.

Ms. Ahonen would benefit from a short course of treatment with respect to her anxiety symptoms.  As a result of this motor vehicle accident, Ms. Ahonen will be susceptible to the development of significant Post-Traumatic Stress Disorder symptoms if she was exposed to similar trauma. I would not that subsequent traumatic events do not need to be as severe as the initial event to trigger either recurrent Post-Traumatic Stress Disorder or to initiate a new patter of Post-Traumatic Stress Disorder. If this was to occur, Ms. Ahonen would require greater intervention in terms of both pharmacology and psychological treatments.

The Trial Judge awarded $100,000 for non pecuniary damages which included significant physical symptoms. The Trial Judged noted that prior to the motor vehicle accident she enjoyed a very physically active life and that since the accident she has suffered physical and psychological injuries. She continues to experience daily neck pain and headaches and her relationship with her children has been affected. The Trial Judge concluded that she will likely live for the rest of her life with neck pain and headaches.

Miles v. Kumar 2013 BCSC 1688

This case concerned the claim for personal injury damages resulting to a cyclist when he was struck by the Defendant driving a car. The collision knocked the Plaintiff off his bike, he then struck the hood and windshield of the Defendant’s car, ultimately landing on the road.

At the time of trial the Plaintiff was 42 years old. He is a public transit bus driver. He does not own a car, rather he relies on his bike for transportation. Prior to the accident he was very active and physically fit. With respect to psychological symptoms subsequent to the accident the Trial Judge noted that the Plaintiff since the accident had suffered from depression and has been on anti-depressant medication and he struggles with sleeplessness.

The expert evidence in this case came from Dr. William Koch, registered psychologist. Dr. Koch noted that the Plaintiff did not have a history of ongoing psychological distress. He diagnosed the Plaintiff as suffering from a major depressive disorder, chronic pain disorder and PTSD. Dr. Koch said that it is a rare patient who has PTSD occurring alone. Dr. Koch recommended a minimum of three years of psychotherapy and attendance at a multidisciplinary pain clinic.

The Trial Judge quoted from a portion of Dr. Koch’s report where he set out the DSM rules for an event to qualify as a traumatic stressor. That quotation was as follows:

Both of the following (must be) present:
1. The person experienced, or witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity or self of others;
2. The person’s response involved intense fear, helplessness, or horror.

The Trial Judge found that the Plaintiff was at fault for the accident so he did not proceed to an analysis or quantification of the evidence regarding damages.

Rose Keith, BA JD - Author for above article on PTST and legal implications in injury awardsRoseKeith.bc.ca

Experienced representing individuals injured in motor vehicle accidents with a variety of injuries including:

· catastrophic traumatic brain injury

· spinal cord injury

· brain injury

· chronic pain

· psychological injuries

· soft tissue injuries

Focus is on ensuring full compensation for all losses suffered.

In 2008 she was the Trial Lawyers Assoc. of BC President

ROSE KEITH, QC
As of 2019 Rose Keith, Q.C. - has focused her practise on Workplace and Employment Law, with her previous 25 years experience dealing with personal injury clients who often had to deal with short and long term career / job description changes.

For her current web profile see www.harpergrey.com/ lawyer/ rose-keith/
Rose Keith, QC
Associate Counsel
HARPER GREY, LLP
3200 – 650 West Georgia Street
Vancouver, British Columbia, V6B 4P7
Canada
Tel: 604 687 0411

Rose Keith, Barrister & Solicitor author of the above article has been a content contributor to CanadaLegal.info for over 20 years. 

******************

Twenty Questions to Ask - Before You Hire a Lawyer

An excellent Checklist for someone to use in selecting a lawyer, has been prepared by the publishers of www.lawyers-bc.com/tips.htm.  You will find these guidelines useful for not just Employment Lawyers but other types of lawyers special services also.

Personal Injury Law as a Preferred Area of Practice

The Law Society of BC has lawyers who have stated a particular "preferred area of practice"  Personal Injury Law is one of these P.A.P's.

Not all lawyers who advertise in:   telephone directories; on the Web or in magazines have stated their Preferred Area of Practice with the Law Society of BC directory.

Web site Disclaimer

This site lists lawyers with areas of practice including Canada Citizenship and Immigration / Refugee Law - we advise you to verify if the lawyer is still maintaining their membership with the Law Society of BC by going to www.lawsociety.bc.ca as lawyers move or change areas of specialization over time.

The intent of this web-site is to provide "starting points" for people looking for sources of legal information and specialists.  Information on this web site is not to be seen as legal advice -- for that you directly consult a lawyer. 

This site is not endorsed by web sites to which it provides links to, unless otherwise noted, where a particular lawyer has volunteered to become a content contributor.

Credits
Photo of Ottawa's Parliament Buildings from Adrienne S. Chan, Ph.D, a Vancouver based consultant in diversity/ anti-racism/ multiculturalism training, research, organizational development, program development and review.  See www.GetDiversity.com

Errors or Omissions

If any lawyer-firm notes that we have made an error or omission in our mention of them on this web site, please send us email with the appropriate information.