If my chronic injuries from the collision trigger a relapse of my psychiatric illness, will I be compensated for that relapse? What if I have a very traumatic history that seemingly pales in comparison to the low speed collision that caused my injuries?
In the recent BC Supreme Court decision of Shongu v. Jing, 2016 BCSC 901, the plaintiff (Mr. Shongu) was injured in a motor vehicle collision. He suffered physical injuries including whiplash with chronic neck, shoulder, and upper back pain; cervicogenic headaches; and temporomandibular joint pain. Additionally, the collision caused him a relapse of pre-existing psychiatric vulnerabilities (PTSD, depression, and insomnia) which had been in remission prior to the MVC, and caused him to develop schizophrenia.
A major issue in this case was whether the MVC caused or contributed to Mr. Shongu’s psychiatric symptoms. He had an incredibly difficult life and childhood. He was born and grew up in the Democratic Republic of the Congo (the “DRC”), and witnessed the murder of his father and other family members during civil war in the 1990s. He narrowly avoided his own murder. These traumatizing events triggered many symptoms including nightmares, social phobia, and fear of being killed. He was diagnosed with PTSD, and from 1998 to 2000, he was slowly recovering. Then, in 2003, he again experienced the horrific violence of war. He witnessed soldiers set fire to a house in which his mother was trapped. She was killed in the blaze. That event caused a recurrence of his PTSD.
Mr. Shongu fled the DRC, making his way to the United States, and ultimately Canada in November 2005 – landing in Vancouver where he sought refugee status. In 2006 the immigration process required him to relate his history of experiences in the DRC, which again brought on symptoms of PTSD symptoms over his anxiety of being sent back, and fear that he would be killed when he arrived. He received treatment, but nonetheless his symptoms intensified and led to six weeks of hospitalization in the psychiatric ward in a Vancouver hospital. He continued to receive psychiatric care for the next 11 months, after which his psychiatrist deemed him well enough to be referred to a family physician. From 2007 through to the time of the MVC (July 2012), he did not require any psychiatric care.
Pointing to the above, the ICBC lawyer argued that Mr. Shongu’s psychiatric condition at the time of trial was a natural progression of his pre-exisitng psychiatric illness. Mr. Shongu’s counsel argued that his pre-existing psychiatric condition made him vulnerable – a vulnerability that the legal jargon calls “thin skull”. In his analysis, Mr. Justice Sewell first set out the applicable law:
[64] I do not think I can improve upon the summary of those legal principles set out by Voith J. in Brewster v. Li, 2013 BCSC 774:
[79] The basic principle of tort law is that the defendant must put the plaintiff back in the position she would have been in had the defendant’s tortious act not occurred (Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 32). The corollary of this principle is that the defendant need not compensate the plaintiff for any loss not caused by his/her negligence or for “debilitating effects of [a] pre-existing condition which the plaintiff would have experienced anyway” (Athey at para. 35).
[80] Since the burden is on the plaintiff to prove causation, she must establish that the defendant’s tortious act caused both an injury (i.e. her pain disorder and/or her depression) and a resulting loss (e.g. non-pecuniary loss or lost wages). “The former is concerned with establishing the existence of liability; the latter with the extent of that liability” (Blackwater BCSC at para. 363). In the case at hand, if the plaintiff cannot establish that one of her injuries was caused by the MVA, then she cannot recover from the defendant for the losses that flowed from that injury. Additionally, if the plaintiff cannot establish that the injury caused by the defendant, in turn, caused a certain loss, then she cannot recover from the defendant for that loss.
[65] Once a plaintiff establishes that the defendant‘s negligence is a cause of his or her injuries, the defendant is liable for the full extent of the loss, even if there are other, non-tortious, causes for it. In this regard see Athey v. Leonati, [1996] 3 S.C.R. 458:
19 The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped produce the harm: Fleming, supra, at p. 200. It is sufficient if the defendant’s negligence was a cause of the harm: School Division of Assiniboine South, No. 3 v. Greater Winnipeg Gas Co., [1971] 4 W.W.R. 746 (Man. C.A.), at p. 753, aff’d [1973] 6 W.W.R. 765 (S.C.C.), [1973] S.C.R. vi; Ken Cooper-Stephenson, Personal Injury Damages in Canada (2nd ed. 1996), at p. 748.
[66] In Farrant v. Laktin, 2011 BCCA 336, the Court affirmed the applicable principles:
[8] To justify compensation for his disabling pain, the plaintiff must establish a causal connection between the defendant’s negligence and that pain.
[9] The general test for causation, established in Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17, is the “but for” test: “but for” the accident, would the plaintiff have suffered the disabling pain? In Athey, the Court also stated that a plaintiff need not establish that the defendant’s negligence was the sole cause of the injury. If there are other potential non-tortious causes, such as the plaintiff’s spinal degeneration in this case, the defendant will still be found liable if the plaintiff can prove the accident caused or materially contributed to the disabling pain, beyond the de minimus range.
…
[11] Thus, in applying the “but for” test, the trial judge was required to consider not just whether the defendant’s conduct was the sole cause of the plaintiff’s disabling pain, but also whether the plaintiff had established a substantial connection between the accident and that pain, beyond the de minimus level.
[67] These authorities require me to determine Mr. Shongu’s pre-accident condition and his post-accident condition, then to determine whether the injuries he suffered in the accident caused or contributed to his post-accident condition.
Mr. Justice Sewell then turned to the facts, rejecting ICBC’s argument that this low-speed MVA could not have caused such psychiatric disturbance. He concluded that the impact was not the trigger of the psychiatric condition, rather it was the collision-related chronic pain that triggered his psychiatric condition. In concluding that there was the requisite substantial connection between the injuries suffered and the psychiatric loss, he made the following finding:
[131] The authorities I have referred to above establish that there need only be a substantial connection between the injuries suffered by the plaintiff and the loss of which he complains. In this case I find that there is such a connection.
[132] I have concluded that Mr. Shongu’s present disability is the result of a combination of his pre-existing psychiatric vulnerability, the chronic pain from his physical injuries, and the effect of the medications he is taking to control his symptoms. I find it more likely than not that it is the interaction of all three factors that have caused Mr. Shongu’s disability. I am satisfied that there is a substantial connection between the injuries he suffered in the accident and his present symptoms. That substantial connection is sufficient to impose liability on Ms. Li.
[133] Subject to adjustment for contingencies I, therefore, find that Ms. Li is liable for the full extent of Mr. Shongu’s damages in this case. In my view, the factors addressed by Dr. Tomita may be relevant to assessing the contingencies that must be applied to the assessment of Mr. Shongu’s damages, but do not negate the defendant’s liability for those losses
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