Juanita Ryan Plaintiff And: Bernice Curlew Defendant, 2018 NLSC 72

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Ryan v. Curlew , 2018 NLSC 72 Date : April 4, 2018 Docket : 201201G0282 Between: Juanita Ryan Plaintiff And: Bernice Curlew Defendant Before: Justice Garrett A. Handrigan Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: November 14 – 21, 2017, November 23 & 24, 2017, November 27 – December 13, 2017 & March 23, 2018

Summary: Juanita Ryan was a passenger in her own car when it collided with a car driven by Bernice Curlew near St. John’s, NL on January 11, 2010. Ms. Ryan was injured in the accident. She sued Ms. Curlew in damages. Ms. Curlew denied liability for the accident. She put Ms. Ryan to the proof of liability and the damages she claimed. The Court allowed Ms. Ryan’s claim. It found that Bernice Curlew caused the accident and it quantified Ms. Ryan’s damages, awarding her $803,420 in total, plus interest on some, but not all heads of damages. The Court gave the parties leave to contact the Registry for a date to speak to costs. Appearances:

David S. Williams and Kyle R. Rees Appearing on behalf of Juanita Ryan Terry G. Rowe, Q.C. Appearing on behalf of Bernice Curlew Authorities Cited: CASES CONSIDERED: Lundrigan v. Matthews, [1981] N.J. No. 198, 31 Nfld. & P.E.I.R. 466 (Nfld. S.C.T.D.); Lundrigan v.Matthews, [1984] N.J. No. 69 (Nfld. C.A.); Penney v. Dean, 2005 NLCA 48; Athey v. Leonati, (SCC), [1996] 3 S.C.R.458, S.C.J. No. 102 (SCC); Andrews v. Grand & Toy Alberta Ltd., (SCC), [1978] 2 SCR 229 (SCC); Keizer v. Hanna, (SCC), [1978] 2 S.C.R. 342 (SCC); Fontaine v.

British Columbia (Official Administrator), (SCC),[1998] 1 S.C.R. 424 (SCC); O’Brien v. Cochrane, 2002 NFCA 45; Carlson v. Romanchuk, [1978] 3 A.C.W.S. 309, 1978 CarswellOnt3193 (Ont. Dist. Ct.); Greer v. Horton, [1996] O.J. 4826, 65 A.C.W.S. (3d) 652 (Ont. Gen. Div.); O’Brien v. Cochrane, (NL SC), [2000] N.J. No. 140, 190 Nfld. & P.E.I.R. 8 (Nfld. S.C.T.D.) Tucker v. Stanbury, [1981] N.J. No. 48 (Nfld. C.A.);Roche v. Newfoundland, (NL CA), [1995] N.J. No. 382, 136 Nfld. & P.E.I.R. 285 (Nfld. C.A.); Driscoll v. Morgan,2007 NLCA 39; Gosse v. CBS Taxi Ltd., 2000 NFCA 16 , [2000] N.J.

No. 75, 185 Nfld. & P.E.I.R. 255 (Nfld. C.A.); Tibbetts v.Murphy, 2015 NSSC 280; Tibbetts v. Murphy, 2017 NSCA 35; Wall v. McGrath, (NL SC), [1996] N.J. No. 94, 139Nfld. & PEIR 208 (Nfld. S.C.T.D.); Allen v. Wal-Mart Canada Inc., 2009 NLTD 79; Reid v. Joy, (NL CA), [1999]N.J. No. 274, 181 Nfld. & PEIR 246 (Nfld. C.A.). STATUTES CONSIDERED: Highway Traffic Act. R.S.N.L. 1990, c. H-3, Automobile Insurance Act, 1990, c. A-22; Canada PensionPlan, R.S.C. 1985, c. C-8; Nova Scotia’s Insurance Act, R.S.N.S. 1989, c. 231; Judgment Interest Act, RSNL 1990, c. J-2.

TEXTS CONSIDERED: Jamie Cassels, Remedies: The Law of Damages, Irwin Law, 2000. REASONS FOR JUDGMENT Handrigan, J.: INTRODUCTION [1] Juanita Ryan was born February 8, 1983 and is 35 years old. She lives in Conception Bay South, NL and does not worknow. But Ms. Ryan worked full-time as a Ship’s Clerk with Canship Ugland Limited until January 11, 2010 when she was injured in amotor vehicle accident on Pitts Memorial Drive, just outside St. John’s, NL. Ms. Ryan was a passenger in a car that she owned.

Hermother, Rosemary Ryan, was driving the vehicle at the time of the accident and they were heading east from Conception Bay South, to ahair salon in Kilbride, NL where Juanita Ryan had an appointment. [2] The accident happened in mid-afternoon, sometime between 2:30 and 3:00 pm. It was cold, clear and sunny at the time androad conditions were good. Pitts Memorial Drive is a four-lane divided highway, with two lanes running generally east-west, divided bya median. Rosemary Ryan said she noted an SUV approaching Pitts Memorial Drive from the Trans-Canada Highway, along an accessramp to her right. Ms.

Ryan says she moved from the right to the left, or into the “passing” lane of Pitts Memorial Drive when she sawthe SUV approaching. [3] Rosemary Ryan said the vehicle she saw approaching on the ramp, struck her daughter’s car, a red 2008, two-door ChevroletCobalt on the passenger side. She says the Cobalt spun around from the impact and she lost control of it. Ms.

Ryan says the mergingvehicle then struck the Cobalt again, this time on its rear fender, passenger side, driving the Cobalt into the median, where it stopped in a“boulder of rocks”. [4] Juanita Ryan says she suffered serious personal injuries in the collision; and that her injuries did not respond to the varioustherapeutic modalities she practiced in the intervening years since the accident. In the result, Ms. Ryan claims she has developed chronicpain, depression, anxiety and post-traumatic stress disorder.

She says her condition is so severe that she will never work again. [5] Juanita Ryan sued Bernice Curlew for damages for her injuries by filing a Statement of Claim in this Court on January 9,2012. Ms. Curlew denied she caused the accident when she filed her Defence on February 18, 2013 and she did not accept responsibilityfor Juanita Ryan’s injuries. I finished a lengthy trial dealing with both liability and damages on December 13, 2017 and reserved myjudgment until now. The Issues [6] I have three issues to decide:

1. Is Bernice Curlew liable for the accident? 2. If so, did the accident cause or materially contribute to Juanita Ryan’s injuries? 3. If so, how much compensation should Ms. Ryan receive for her injuries? The Law Liability for Accident [7] In Lundrigan v. Matthews, [1981] N.J. No. 198, 31 Nfld. & P.E.I.R. 466 (Nfld. S.C.T.D.) Mahoney, J. dismissed theplaintiff’s claim for the injuries that Mr. Lundrigan said Mr. Matthews caused when he knocked Mr. Lundrigan down with his motorvehicle: “The evidence before me does not disclose any negligence on the part of the defendant.

He did all that a prudent driver could doon the night in question. The actions of the unfortunate plaintiff were the sole cause of the collision and the injuries suffered by him”:Lundrigan v. Matthews, paragraph 59. Our Court of Appeal dismissed Mr. Lundrigan’s appeal at Lundrigan v. Matthews, [1984] N.J.No. 69 (Nfld. C.A.). [8] In his reasons for judgment at trial, Mahoney, J. stated the burden of proof on a plaintiff who claims damages for personalinjuries sustained in a motor vehicle collision: “In order to succeed, the plaintiff must prove negligence on the part of Robert Matthews,the defendant.

The burden of proof is upon a balance of probabilities. In this Province, the burden of proof rests on the plaintiff to showthat there was a breach of duty on the part of the defendant to take care which resulted in injury. This is not a Province where the onusrests with the defendant driver”: Lundrigan v. Matthews, paragraph 38. Causation [9] To succeed in this action, Juanita Ryan must prove that Bernice Curlew not only breached a duty of care that she owed to Ms.Ryan, but she must also prove that Ms. Curlew’s negligence caused Ms. Ryan’s damages.

Our Court of Appeal explained the connectionbetween negligence and causation in Penney v. Dean, 2005 NLCA 48: “…[U]nless there is something in the circumstances that justifiesshifting the burden of proof to a defendant, the burden of proving causation, on the balance of probabilities, rests with the plaintiff. Inthe words of Major J., [in Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458, S.C.J. No. 102 (SCC)] ‘the plaintiff mustprove that the defendant's tortious conduct caused or contributed to the plaintiff's injury’”: Penney v. Dean, paragraph 20. Damages [10] And then, of course, Ms.

Ryan must prove her damages, of which she claims: pecuniary losses occurring before trial; loss ofearning capacity and related losses; cost of future care; and non-pecuniary losses, often called “general damages”. In Andrews v.

Grand& Toy Alberta Ltd., (SCC), [1978] 2 SCR 229 (SCC), the Supreme Court of Canada approved this fourfold division ofdamages and offered this approach to trial judges when quantifying damages: “Rather than make an overall assessment of the total sum,it is more appropriate to make an overall assessment of the total under each head of future care, prospective earnings, and non-pecuniaryloss, in each case in light of general considerations such as the awards of other courts in similar cases and an assessment of thereasonableness of the award”: Andrews, headnote, page 233.

Ultimately, as Dickson, J. also said in Keizer v. Hanna, (SCC), [1978] 2 S.C.R. 342 (SCC), “…the only question of importance is whether, in all the circumstances, the final award is fair andadequate”: Keizer, page 351. [11] Two of the four headings of damages I stated in the preceding paragraph have sub-headings to them, of which the following arerelevant to this case: 1) Pre-Trial Pecuniary Losses:

i) Past Lost Earnings ii) Past Housekeeping Costs iii) Past Costs of Care/Special Damages 2) Loss of Future Earning Capacity 3) Future Care:

i) Future Care Costs ii) Loss of Future Housekeeping Capacity 4) Non-Pecuniary Losses/General Damages. [12] This is the law I will apply to the issues that Ms. Ryan’s claim raises. I turn now to analyze those issues, starting with thebackground to them. Analysis

Background [ 13 ] In the early afternoon of Monday, January 11, 2010, Rosemary Ryan and Juanita Ryan, her daughter, left Juanita’s home at 8 Richwood Crescent, Conception Bay South in Juanita’s 2008 red Chevrolet Cobalt, a two-door sedan motor vehicle. Juanita Ryan sat in the passenger side seat at the front of her vehicle, on her mother’s right. They were headed to a hair salon called the “Hair Haven” in Kilbride where Juanita had an appointment. Rosemary Ryan said they took Juanita’s car because her daughter wanted to “smoke” and she drove because Juanita wanted to “have a coffee and relax”. Ms.

Ryan described her daughter as a light smoker who had an occasional cigarette with a cup of coffee or a glass of wine. [ 14 ] Rosemary Ryan noted that it was a cold and crisp, but sunny day and road conditions were good as they drove east on Pitts Memorial Drive to Kilbride. Sometime between 2:30 pm and 3:00 pm, Ms. Ryan said they were driving near a ramp that led from the Trans-Canada Highway onto Pitts Memorial Drive. Ms. Ryan estimated she was driving between 90 and 100 kilometers at the time, when she saw an SUV approaching on a merge ramp to her right.

She said the SUV was “well down the ramp” and even though there was no traffic, “…I just, just for precaution I just exited into the, the closest lane to the meridian”. [ 15 ] Ms. Ryan said that she lost sight of the SUV after she saw it approaching on the ramp; and before she saw it again, Ms. Ryan says the SUV struck the right side of her daughter’s car, causing it to spin around.

Then the SUV struck the right rear bumper of their car and drove it into the highway median where it stopped atop a “boulder of rocks”. [ 16 ] Shortly after the Ryan vehicle stopped in the median, Rosemary Ryan says a young man approached their vehicle and asked if they were okay. She says he also asked if they wanted him to stay with them until the police arrived. Ms.

Ryan says at first, she told him to stay with them because she thought he had struck their car; but the young man denied he caused the accident and said that an SUV “back up there hit you”. [ 17 ] Rosemary Ryan said she then had a brief encounter with the driver of the SUV that the young man referred her to. A woman in the SUV drove up to their car and they spoke briefly. Ms. Ryan said the driver of the SUV identified herself as Bernice Curlew. Ms. Curlew wrote her name and telephone phone number on a piece of paper and handed it to Ms. Ryan; and then Ms.

Curlew left the area. [ 18 ] Emergency first responders arrived at the accident scene shortly thereafter and transported Juanita Ryan by ambulance to the Health Sciences Complex, where she arrived at 3:52 pm. As I noted above, Ms. Ryan was the passenger in her own vehicle that her mother was driving. Juanita Ryan was wearing her seatbelt when Ms. Curlew’s vehicle collided with hers. The airbags on Ms. Ryan’s vehicle did not deploy from the collision. [ 19 ] Juanita Ryan did not have a head injury nor did she lose consciousness from the accident, but she says she was quite shaken up by it.

She says she felt discomfort almost immediately and experienced pain in her neck and upper back. Medical staff at the Health Sciences Centre assessed Ms. Ryan when she got there and x-rayed her neck, shoulders and upper body area to see if she had any fractures or dislocations; which she had not. The hospital discharged Ms. Ryan later that day, with a diagnosis of soft tissue injuries and hospital staff advised her to follow up with her family doctor. [ 20 ] Dr. Alison Hillman is Ms. Ryan’s family doctor now and she was her family doctor when the accident happened. Dr. Hillman provided a complete copy of Ms.

Ryan’s chart (Exhibit 8 in A.H. #1) indicating that she had been seeing Ms. Ryan since as early as May 5, 2005. The last entry in the chart was October 20, 2017, a little more than three weeks before we began this trial on November 14, 2017. Subsequently, Dr. Hillman filed an additional page from the chart, containing her notes from a meeting she had with Ms. Ryan on November 10, 2017 (Exhibit 9 in A.H. #1). [ 21 ] Ms. Ryan saw Dr. Hillman in her clinic in Goulds, NL, for the first time about the accident on January 15, 2010, just four days after it happened. Ms. Ryan saw Dr.

Hillman more than 90 times at her clinic in the next 7 years, primarily, though not exclusively for her injuries from the motor vehicle accident. Dr. Hillman advised Ms. Ryan about her injuries, Dr. Hillman recommended, prescribed and coordinated treatment processes, she helped Ms. Ryan manage the pain and the discomfort that she felt; and she generally helped Ms. Ryan cope with the social, psychological, psychiatric and personal fall-out from the accident. [ 22 ] When Dr. Hillman examined Ms. Ryan on January 15, 2010, she noted the following: “…Ms.

Ryan was tight and tender to palpation over her right trapezius muscle. Her cervical spine range of movement was significantly restricted on formal testing. Her deep tendon reflexes were within normal limits suggesting that Ms. Ryan had likely sustained musculoligamentous or soft tissue injuries primarily on the right side of her neck” (Exhibit 2 in A.H. #1, a medical report dated March 3, 2010 to Glen Roebothan, Q.C.). [ 23 ] Dr. Hillman noted in the same report that she “…prescribed anti-inflammatory and muscle relaxant medications (Anaprox and Flexeril, respectively) [for Ms. Ryan].

She was given a series of exercises that were designed to gently mobilize and strengthen her neck and shoulder girdle. Ms. Ryan was advised to remain off work because she would be unable to perform the duties of her usual, or indeed any, occupation at the present time. We discussed the course, treatment and prognosis of soft tissue injuries and a referral to a rehabilitative therapist such as physiotherapy was suggested”. [ 24 ] During the almost eight years between January 15, 2010 and the trial, Ms.

Ryan tried various healing and restorative therapies, including: acupuncture; aqua (or water) therapy; physiotherapy; massage therapy; a heating pad; a TENS machine; medication for physical, psychological and psychiatric conditions; and counseling. [ 25 ] Ms. Ryan consulted with three psychiatrists (Drs. Barbara Maddigan, Douglas Pratt and P. Scott Theriault), one physiatrist (Dr. John Heitzner), one orthopedic surgeon (Dr. Andrew Furey), one ENT specialist (Dr. Wayne Redmond), three physiotherapists (Bob Menchions, Daniel Martyn and Sean Gibbons), two acupuncturists (Dr.

Cosmas Ho and Tiffany Brien), one chiropractor (Dr. Robert Burton), two family doctors (Drs. Hillman and Peter Morey, the latter for medical marijuana), one massage therapist (Mary Ann Rumboldt), one rehabilitation specialist (Paul Hanrahan) and two counselors (Una Howard and Kay Noseworthy). [ 26 ] Yet despite these many interventions, Ms. Ryan says she still suffers from headaches and neck, shoulder and back pain. She says that the pain is mainly to the right side of her body but claims that sometimes it radiates into her right arm, her lower back and her

hips and lower extremities. She claims that the pain is chronic, that she can barely manage it and that it is often persistent. [ 27 ] Ms. Ryan also says she suffers from TMJ syndrome, major depression, generalized anxiety disorder and PTSD. Furthermore, she says that her condition is so debilitating that she qualified for long-term Canada Pension Plan disability benefits because of it, as well as a disability pension with Manulife, through her former employer and

Section B payments from her own insurer. [ 28 ] Ms. Ryan says she is totally disabled and despairs of ever being able to work again because of her musculoligamentous injuries and her mental disorders. Ms. Ryan notes Dr. Hillman’s “poor” prognosis for her recovery; and she refers to the opinions of some of the other doctors she consulted over the years, including Drs. Heitzner, Maddigan, Pratt and Theriault, who are “guarded” about the likelihood she will ever be well enough to go back to work. [ 29 ] This is the background to this matter. I turn now to discuss the issues the claim raises.

Discussion Liability [ 30 ] In her Statement of Claim, Ms. Ryan says that Ms. Curlew was operating a 2005 Saturn Vue motor vehicle at approximately 2:30 pm on January 11, 2010, driving on Ramp 4B from the Trans-Canada Highway to Pitts Memorial Drive. Ms. Ryan alleges that Ms. Curlew was operating the SUV in a “careless and negligent matter, [and] lost control…thereby entering into…[Ms. Ryan’s] lane of traffic and causing a violent collision…[between the two vehicles]” (Paragraph 4 of the Statement of Claim). [ 31 ] She also alleges that Ms.

Curlew was negligent in nine other aspects of her driving, including failing to keep a proper or any lookout, driving at an excessive rate of speed and failing to take any evasive action that would have prevented her from striking Ms. Ryan’s vehicle. In her Defence, Ms. Curlew denied all claims that Ms. Ryan made about her in the Statement of Claim, including Ms. Ryan’s specific allegations of negligence and she put Ms. Ryan “to the strict proof thereof”. [ 32 ] In Lundrigan v.

Matthews , Mahoney, J. stated the burden of proof a plaintiff bears in matters of this kind: “In order to succeed, the plaintiff must prove negligence on the part of…the defendant. The burden of proof is upon a balance of probabilities”. So, Ms. Ryan must prove that Bernice Curlew drove her vehicle negligently on January 11, 2010 and that Ms. Curlew’s negligent driving caused the accident. [ 33 ] Rosemary Ryan was driving her daughter’s Chevrolet Cobalt on Pitts Memorial Drive on that date. She and Juanita were traveling from Juanita Ryan’s home in Conception Bay South to a hair salon in Kilbride. Ms.

Ryan says she saw Ms. Curlew’s SUV approaching Pitts Memorial Drive on a ramp to their right, leading from the Trans-Canada Highway. Ms. Ryan says she pulled from the right lane she was driving in when she saw the SUV, into the left, or the “passing”, lane on Pitts Memorial Drive, as she neared the merge point; “[j]ust for precautionary, there was no reason, I just do it when I’m driving”. [ 34 ] During direct examination Ms. Ryan described what happened after she pulled into the passing lane: “A. Then all of a sudden my car just went into a spin, I had no idea what happened.

And then I – the door just started to fly – Juanita never spoke and I said oh my goodness what’s after happening to us. So then she was in a spin, I had no control, you know, I didn’t know what to do I was frightened too and the car was just continued spinning and I just said oh god is this car going to stop spinning and then I got another bang and the second time I got hit I got hit like I’m presuming it was on the back passenger side and then when I got the second hit the car, we left the road and went into the meridian and it was a boulder of rocks, I will never forget it.

And I said oh my god we’re going to be dead and we are going to take other people with us today”. [ 35 ] Shortly after Ms. Ryan’s vehicle stopped, she says a young man approached their vehicle and spoke with her. This is what Ms. Ryan said happened in that encounter: “A. Then… [Juanita’s vehicle] stopped and then when we stopped this young man came to me and he asked were we okay and I said I hope so, you know, I didn’t [know] what was on the go then, so he asked, he said to me ‘do you want me to stay here until the police arrive’ and I said ‘well you put me here you stay here’.

And he said, ‘no I didn’t do this’ and I said ‘well how did I get here, what happened’ and he said ‘the SUV back up there hit you’”. [ 36 ] As the young man left the scene, the SUV he referred to “back up there” drove up to where Ms. Ryan’s vehicle was stranded on the rocks. This is what Ms. Ryan said about that encounter: Q. Okay and then what did you observe happen next? A. The driver drove up to our car. Q. So the driver in the SUV – A. Come to, yes come up to where we were to. Q. Okay and then did you talk to the driver? A. Yes, I did.

The lady came to me and she told me her name and she gave me her name and her phone number on a piece of paper if I needed anything. Q. And what was her name? A. Her name was Bernice Curlew.

Q. So you had a conversation with a man, a young man. A. Yes. Q. Did you see him again after? A. No. Q. Do you know who that was? A. No. [37] Juanita Ryan described the incident this way in her direct examination: “Q. So just describe to me what happened right before the collision? A. We were going east towards St. John’s/Mount Pearl and the,well I seen that there was a car, there was cars coming off the ramp and anyways my mom, she was just, she was in the right lane firstand then she just moved over to the left lane closest to the median and then someone, something hit me, the car. Q.

Was there any warning of the impact? A. No. Q. Did you hear any like skidding of tires? A. I didn’t know, no it was just, we were just going and there was, we were just goingstraight and then all of a sudden this, my car got hit on the, on my side and I didn’t know what was happening. It happened so fast. Q. So what happened next? A.

She hit the, the car she hit us on my side and it sent my car in a spin and then I think she was in a spintoo and then she hit the backside of my car on my side and then we went into another spin and then we went airborne and I landed in themedian, there was a boulder of rocks and all I could see was there was an overpass and my car was up in the air and I was afraid that itwas going to go down under but it landed on this boulder of rocks and then the car just stopped. Q. How would you describe the impact to your vehicle when it hit? A.

It was, it was – you know, this car smacked into the side of mycar and the door, the door when she hit me the first time my door opened and that was open when we were spinning and then when thesecond time when it got hit it was almost, I don’t know if it, it wasn’t closed like it was broke so it was just hanging there. Q. Where were you looking at the time of the collision? A. Straight ahead”. [38] In the brief she filed after trial, Juanita Ryan claims that the evidence I just reviewed “demonstrated that…[Bernice Curlew] issolely liable for the accident” [Paragraph 22 of the Plaintiff’s Post-Trial Brief]. Ms.

Ryan claims further in her brief that “…it is clearthat…[Ms. Curlew] was not driving her motor vehicle with due care and attention for the aforementioned

section of road and the weatherconditions at the time, as required by

section 110 of the Highway Traffic Act”. [39] Ms. Ryan also contends that “…[Ms. Curlew], as the driver of a vehicle attempting to merge into oncoming traffic, had a dutyto yield the right of way to oncoming traffic”; and that the “duty to yield”, “…includes the requirement that…[Ms. Curlew] ‘slow downto a speed reasonable for the existing conditions’, as required by

section 136 of the Highway Traffic Act. R.S.N.L. 1990, c. H-3. Overall,Ms. Ryan says that Ms. Curlew “…failed to satisfy her statutory and common-law duties and thus is liable for the accident” (All furtherquotations from paragraph 24 of the Plaintiff’s Post-Trial Brief). [40] While Ms. Curlew denied liability for the accident in her Defence, in the brief she filed after trial, she simply said, “[She]…ismaking no submission on liability” (Page 8 of the Post Trial Brief of the Second Defendant). I note here that Ms. Curlew did not testifyat trial, nor did she call any evidence about liability or damages.

I find on the evidence I have that Bernice Curlew caused the accidentand I find her liable for it. Let me explain why. [41] The only evidence I have about what caused the accident came from Juanita Ryan and her mother, Rosemary Ryan. By theiraccounts, they were driving east on Pitts Memorial Drive at a speed between 90 and 100 kilometers an hour. The road was dry, theweather was good, albeit a little cold, visibility was clear and traffic was light. Both Juanita and Rosemary noticed Ms. Curlew’s SUVapproaching the highway to their right and Ms.

Ryan moved reflexively from the main driving lane to the passing lane on Pitts MemorialDrive as they approached the merge point between the ramp and the highway. [42] Neither Juanita Ryan nor her mother saw Ms. Curlew’s SUV collide with Juanita’s Chevrolet Cobalt, but it is clear that theSUV struck the Cobalt twice, the first time causing it to spin and the second time sending it off the highway into the median.

Ms.Curlew drove up to the Ryan vehicle shortly after the collision, she told Rosemary Ryan who she was, and she handed her a piece ofpaper with her name and telephone number on it, if they needed to contact her later. [43] In Fontaine v. British Columbia (Official Administrator), (SCC), [1998] 1 S.C.R. 424 (SCC), the SupremeCourt of Canada considered the continued relevance of the maxim, res ipsa loquitur, or, as translated, “the thing speaks for itself”, incases of alleged negligence.

Major, J., writing for the panel of five judges, dismissed the maxim and said “[g]iven its limited use it issomewhat meaningless to refer to that use as a doctrine of law”: Fontaine, paragraph 26. [44] Major, J. offered a “better” approach to “…cases where the facts permitted an inference of negligence and there was no other

reasonable explanation for the accident”: “It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions. After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant.

Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed”: Fontaine , paragraph 27 . [ 45 ] Applying that approach to this case, I find that Juanita Ryan has proved, on a balance of probabilities, a prima facie case of negligence against Bernice Curlew; for which Ms. Curlew offered no evidence negating the proof that Ms.

Ryan offered. [ 46 ] This is the evidence I rely on for that proof: • Rosemary Ryan was driving her daughter’s car within the posted speed limit. • Rosemary Ryan saw Bernice Curlew’s vehicle approaching on the ramp to her right. • Rosemary Ryan moved her daughter’s vehicle from the driving lane to the passing lane to give Bernice Curlew more room to merge safely from the ramp to Pitts Memorial Drive. • The weather was good. • Visibility was good. • The pavement was dry and clear. • The vehicles collided in the vicinity of the merge point, when Bernice Curlew’s SUV struck Juanita Ryan’s car, first on its right side and then on its right rear bumper. • Bernice Curlew’s vehicle struck Juanita Ryan’s vehicle the first time with sufficient force to cause it to spin around in the highway and the second time hard enough to cause Ms.

Ryan’s vehicle to leave the highway and become stranded on a pile of rocks in the median. • Bernice Curlew gave Rosemary Ryan a piece of paper with her name and phone number on it. • Bernice Curlew offered no evidence of how the accident happened. [ 47 ] I turn now to causation. Causation [ 48 ] In Penney v. Dean , our Court of Appeal adopted these words from Major J., in Athey v. Leonati to describe the burden on the plaintiff to prove causation in personal injury claims: “The plaintiff must prove that the defendant's tortious conduct caused or contributed to the plaintiff's injury”: Penney v.

Dean , paragraph 20 . Thus, the onus is on Juanita Ryan to prove that the negligent manner in which Bernice Curlew drove her SUV on January 11, 2010 “caused or contributed to” Ms. Ryan’s injuries. [ 49 ] Subject to my discussion of mitigation, which I will get to shortly, I am satisfied that the motor vehicle accident caused or contributed to Ms. Ryan’s injuries. The evidence is clear that Ms. Ryan was in good health before the accident. She was just a month short of her 27th birthday when Ms. Curlew struck her vehicle on January 11, 2010 and Ms.

Ryan’s health changed dramatically with that event. [ 50 ] Earlier in these reasons, I referred to a medical report dated March 3, 2010 that Dr. Hillman provided to Glen Roebothan, Q.C., who was Ms. Ryan’s legal counsel at that time. Dr. Hillman replied to a letter she received earlier from Mr. Roebothan and advised him of her findings from her consultations with Ms. Ryan. She concluded the report this way: “In

summary, Juanita Ryan was involved in a motor vehicle accident on January 11, 2010. She sustained musculoligamentous injuries to her neck and shoulder girdle, but also to her hip/back. Ms. Ryan has ongoing pain and stiffness in her neck and has been experiencing headaches since the collision. She has followed the recommended treatment program and will be reassessed again in the future. Ms. Ryan’s prognosis at this time is uncertain; it is hoped that she will continue to improve and eventually regain her preinjury status. Ms.

Ryan is young and physically fit and, as mentioned previously, had no prior history of neck problems”. (Pages 3-4 of Exhibit #2, in A.H. #1) [ 51 ] I also note that Ms. Ryan worked for Canship Ugland, as a Ship’s Clerk aboard the MV Kometik at the time of the accident. Ms. Ryan hired on with Canship in the fall of 2007 and her position became permanent on February 21, 2008. Ms. Ryan worked a 5 week on and off

schedule by which she worked 5 weeks and was off 5 weeks. She remained on board the Kometik during her work shift and worked 12-hour shifts, 7 days a week. The Kometik was mostly at sea during Ms. Ryan’s work shifts, sometimes in extreme weather. [ 52 ] Ms. Ryan’s job demanded a lot physically from Ms. Ryan. Lisa Moffat was the Human Resource Officer who hired Ms. Ryan at Canship. She testified at trial. Ms. Moffat noted some of the physical demands on Ms.

Ryan: • Moving boxes, getting things to the desk area, two flights above the main deck. • Climbing multiple flights of stairs, to heights of 150 to 200 feet in some instances. • Obtaining a seafarer’s medical clearance by a rigorous physical exam.

• Attending muster stations in full immersion floater suits. • Practicing lifeboat launches into water, attired in full regalia. • Wearing steel-toed boots and full personal protective equipment when on deck, including hard hat, safety glasses and winter gear,when necessary. [53] Greg Pretty is an Industrial Offshore Director for the FFAW-Unifor, the union that represented Canship workers on theKometik and other offshore vessels. He also testified at trial. Mr. Pretty said that Canship faces recruitment issues for crewing itsoffshore vessels. He noted that the vessels “don’t come in for storms.

It is not for everybody”. [54] In short, no more proof is necessary that Ms. Ryan was in good health before the accident than to recognize that she wassuccessfully employed in a difficult and demanding work environment for more than two years before she was injured. Ms. Ryan wasscheduled to go back to work for her next five-week shift on January 12, 2010, the day after the accident but she could not go because ofher injuries. She has not worked in eight years. Mitigation [55] Our Court of Appeal dealt with a plaintiff’s duty to mitigate her losses in O’Brien v.

Cochrane, 2002 NFCA 45, a personalinjury claim arising from a motor vehicle accident. The trial judge reduced the plaintiff’s damages because the plaintiff failed tomitigate. The plaintiff appealed. Cameron, J.A. noted that the trial judge found that “…the failure to mitigate related to two treatmentsfor Ms. Cochrane's injuries: exercise and injections”: O’Brien v.

Cochrane, paragraph 16. [56] As to exercise, the trial judge, found as Cameron, J.A. reported, “…the plaintiff failed to participate to the degree reasonably tobe expected…with respect to early activities designed to maximize the chances of…minimizing…long-term adverse symptoms from theinjuries she sustained”: O’Brien v. Cochrane, paragraph 16.

As to injections, again as Cameron, J.A. noted, the trial judge found that theplaintiff had refused all injections recommended for her, particularly those that might have allowed her to “…more easily cope with theregime of specific and rigorous exercise which is a highly desirable treatment…”: O’Brien v. Cochrane, paragraph 16. The trial judgereduced the damages he was prepared to allow the plaintiff because of her failure to mitigate by either 7½ or 15 percent, depending onthe head of damage, but mostly the latter. [57] O’Brien v. Cochrane is also helpful for another reason.

Cameron, J.A. quotes from Jamie Cassels, Remedies: The Law ofDamages, Irwin Law, 2000, at page 354 about the “consequences of a failure to mitigate”; which Cameron, J.A. says, Cassels “…statesin my view correctly”: “Where the plaintiff has failed to mitigate, how should damages be calculated? There are two competing views. On the one hand, it hasbeen argued that the plaintiff's failure to mitigate breaks the chain of causation and cuts off the defendant's liability.

This is based on thelogic that, where the defendant demonstrates on a balance of probabilities that the treatment would have eliminated the plaintiff'sinjuries, no loss has been proved. The alternative view, which prevails in Canada, is that the failure to mitigate should be treated as acontingency and valued as a lost chance rather than a certainty. In other words, where the plaintiff refuses to undergo treatment, thedamages should be discounted to reflect the chance that the surgery would have been successful.

Another way of putting this is that theplaintiff should still be able to recover that portion of his loss that possibly would have occurred even had he pursued the treatment. InJaniak v. [Ippolito, (SCC), [1985] 1 SCR 146 (SCC)] the plaintiff's damages were reduced by 70 percent to reflect theprobability that had he undergone the surgery he would have recovered. He was entitled to 30 percent of those damages to reflect thechance that, even with the surgery, his condition might not have improved.

Thus, a court must estimate the value of the chance that the treatment would have eliminated or reduced the plaintiff's loss. It is wrongfor a court to find that because, on the balance of probabilities, the treatment would have succeeded, the plaintiff is entitled to nothingfor her loss. This method of reducing damages for the chance that the plaintiff might have mitigated is used in ordinary commercial casesas well and is consistent with the measurement of future damages”: Quoted in O’Brien v. Cochrane, paragraph 25. [58] This is the law I will apply to my discussion of Ms. Ryan’s duty to mitigate. [59] Ms.

Curlew claims that Ms. Ryan failed her duty to mitigate in three ways: 1. Not following the advice of psychiatric Drs. Maddigan, Pratt and Theriault to consult with a psychiatrist; 2. Not taking the anti-depressant medication the same three doctors prescribed; and 3. Not following an exercise routine her health care professionals recommended for her following the accident. [60] I agree with Ms. Curlew. Let me examine each of Ms. Ryan’s failures to mitigate more closely. Psychiatric Care/Psychotherapy [61] Dr. Barbara Maddigan is a doctor of psychiatry.

She is a member of the Royal College of Physicians and Surgeons of Canadaand practices medicine in St. John’s, NL. Dr. Maddigan saw Ms. Ryan twice; first on March 17, 2011, a little over a year after theaccident and again on January 31, 2012, less than a year later. For the first consultation, Dr. Maddigan received a referral for Ms. Ryanfrom Ethel Ann Edwards, a rehabilitation case manager. Ms. Edwards dealt with Ms. Ryan’s

Section B insurer early in the process, buteventually acquired the Manulife file as well. Ms. Edwards asked Dr. Maddigan to perform an “independent psychiatric assessment” ofMs. Ryan, on behalf of the

Section B insurer.

[ 62 ] Dr. Maddigan reported to Ms. Edwards from the initial consultation that Ms. Ryan “…fulfills criteria for Generalized Anxiety and Major Depressive Disorder, first episode, mild to moderate in intensity”. Dr. Maddigan recommended that “…Ms. Ryan continue with psychotherapy, both a supportive and cognitive approach would be helpful”. She had two further recommendations: “I would also suggest consideration of an SSRI, or SNRI, to help treat her ongoing symptoms of anxiety and irritability. As her pain is an ongoing stressor, obviously management of this is essential.

I suggested she speak with her family doctor regarding an appropriate exercise program for her physical condition when appropriate”. [ 63 ] I also note that Dr. Maddigan described Ms. Ryan as an “independent person, with sincere motivation to get well”. Dr. Maddigan “…expecte[d] her to respond well to ongoing treatment and support” (All quotations for Dr. Maddigan from Exhibit B.A.M. #2). From the preceding it appears that as early as March 2011, Dr. Maddigan, recommended a three-prong approach to Ms.

Ryan’s rehabilitation: continue psychotherapy; begin taking anti-depressant medication; and engage in an exercise program. [ 64 ] Dr. Maddigan received the second referral for an independent psychiatric assessment of Ms. Ryan from Erin Cameron a disability case manager for Manulife. Dr. Maddigan saw Ms. Ryan on January 31, 2012 and reported to Ms. Cameron the same day as she met Ms. Ryan. Dr. Maddigan noted that Ms. Ryan “…fulfills criteria for Major Depressive Disorder, Moderate to Severe in intensity, and Single Episode. Ms. Ryan also fulfills criteria for Generalized Anxiety Disorder.

Her symptoms have escalated in the past several months”. [ 65 ] To Ms. Cameron, Dr. Maddigan recommended that “…Ms. Ryan continue with her psychotherapy with Ms. [Una] Howard, and this should be of a supportive, as well as cognitive behavioural and interpersonal psychotherapy. Medication needs to be increased. Cipralex is an appropriate choice and should be increased from 10 mg po od to 20 mg po od, and then maximized if necessary. If Symptom improvement is not achieved, then a switch to another SSRI or SNRI, like Effexor XR may be of benefit. I would also suggest that Ms.

Ryan may be referred to a psychiatrist to support her family doctor in the psychopharmacology approach” (All quotations for Dr. Maddigan from Exhibit B.A.M. #3). [ 66 ] Dr. Douglas Pratt is also a doctor of psychiatry. He is a Fellow of the Royal College of Physicians of Canada and practices medicine in St. John’s, NL. Dr. Pratt saw Ms. Ryan for an independent medical examination on September 19, 2013. Dr. Pratt received a referral on behalf of Ms. Ryan’s

Section B insurer from Maria Maheras of Assessment Rehabilitation Services Inc. He reported to Ms. Maheras the same day as he met Ms. Ryan. [ 67 ] Dr. Pratt diagnosed Ms. Ryan with “Major Depressive Episode, Chronic Course, Generalized Anxiety Disorder”; “Chronic pain with multiple musculoskeletal symptoms”; and “Severe stressors associated with Chronic Pain, Ongoing Disability, Loss of Independence and Income”. He recommended the following: “Cipralex at a dose of 10 mg. and then 20 mg. a day has been associated with improvement.

Consideration could be given to tapering and discontinuing this medication and prescribing another antidepressant, for example, Effexor. If symptoms of anxiety and depression persist, other agents could be used in conjunction with the antidepressant such as a Benzodiazepine, for example Ativan or an atypical antipsychotic agent, for example Seroquel. She should have regular counseling through psychology and be referred to a psychiatrist in the community. Her prognosis for improvement and return to work is guarded.

However, maximizing any indicated physical therapies and with psychiatric care as outlined above, there may be significant improvement” (All quotations for Dr. Pratt from Exhibit D.R.P. #1). [ 68 ] Dr. P. Scott Theriault is also a doctor of psychiatry. He is a Fellow of the Royal College of Physicians of Canada and specializes in forensic psychiatry. Dr. Theriault is an Associate Professor in the Department of Psychiatry, Dalhousie University, Halifax, NS. Dr. Theriault saw Ms. Ryan at the request of the defence, for an independent medical (psychiatric) evaluation on October 15, 2015. [ 69 ] Dr.

Theriault diagnosed Ms. Ryan with “Persistent depressive disorder (with persistent major depressive episode); posttraumatic stress disorder; somatic symptom disorder (with predominate pain)”. Dr. Theriault believed that “…Ms. Ryan’s depression, PTSD symptoms, and chronic paid are directly attributable to the motor vehicle accident of January 11, 2010”. [ 70 ] He offered a “guarded” prognosis for Ms. Ryan: “Ms. Ryan has now had enduring symptoms of depression and anxiety/PTSD for almost five years. Hence, prognosis must be considered guarded.

Literature supports that the longer one has continuing depressive symptoms the less the likelihood of recovery. However, it is important whenever possible to remain hopeful. In Ms. Ryan’s case she has not had, in my opinion, the full benefit of the treatments that could be made available to her. She has not had the services of a pain management program, from an interdisciplinary team. There has been no attempt to follow up with other trials of antidepressant medications other than the single trial of Cipralex that she had several years ago.

She has had some psychotherapy, but it has at times been intermittent and its continuance at this time is dependent on Ms. Ryan’s ability to pay, leading to gaps in contact. Attention to these matters may improve Ms. Ryan’s prognosis and outcome” (All quotations for Dr. Theriault from Exhibit P.S.T. #2). [ 71 ] Those then are the four independent psychiatric examinations (including two from Dr. Maddigan) of Ms. Ryan that have been performed at the request of various parties that Ms. Ryan engaged with following the accident. I turn now to examine Ms.

Ryan’s response to the recommendations that the psychiatrists made; starting with their recommendation that Ms. Ryan consult regularly with a psychiatrist. [ 72 ] Ms. Ryan could only avail of psychiatric services if Dr. Hillman, her family doctor, referred her to a psychiatrist; and Dr. Hillman did not. Dr. Hillman says there was a two-year waiting period for psychiatric services at the time and Dr. Hillman did not see the benefit of referring Ms. Ryan because of the delay. Dr. Hillman acknowledged that she was aware of the recommendations that the three psychiatrists made.

She had copies of their reports and reviewed them with Ms. Ryan. Of course, Ms. Ryan was also aware of the recommendation that she consult psychiatrists but there is no indication that Ms. Ryan ever sought a referral from Dr. Hillman. [ 73 ] Dr. Hillman wrote to Glen Roebothan, Q.C. on September 23, 2011 to provide him with an “…updated medical report pertaining to my patient Juanita Ryan”. Mr. Roebothan represented Ms. Ryan at the time. Dr. Hillman referred to Ms. Ryan’s

consultation with Dr. Maddigan on March 17, 2011. She noted that she and Ms. Ryan “…had a lengthy discussion about Dr. Maddigan’s conclusions and possible treatment suggestions”. Dr. Hillman mentions a number of Dr. Maddigan’s recommendations that she and Ms. Ryan discussed, including: continued counseling with a psychologist that Ms. Ryan had been seeing; “‘consideration’ of pharmacological treatment could be given”; and ongoing psychotherapy. Dr. Hillman did not mention that Dr. Maddigan recommended that Ms. Ryan be referred to a psychiatrist for regular care (All quotations for Dr.

Hillman from Exhibit 4 in A.H. #1). [ 74 ] Dr. Hillman wrote to Mr. Roebothan on February 29, 2012. By then Ms. Ryan had seen Dr. Maddigan a second time and Dr. Hillman had a copy of the report Dr. Maddigan provided to Erin Cameron for Manulife. Once again, Dr. Hillman mentions to Mr. Roebothan that Dr. Maddigan recommended psychological counseling and antidepressant/anti-anxiety medication. Dr. Hillman noted that those recommendations were “discussed with her and will be revisited when she visits again”. Again, Dr. Hillman did not mention that Dr. Maddigan also recommended that Ms.

Ryan be referred to a psychiatrist for regular care (All quotations for Dr. Hillman from Exhibit 5 in A.H. #1). [ 75 ] Finally, Dr. Hillman wrote to “Cathy OT” a disability case manager with Manulife on February 23, 2013 providing her with “a medical report pertaining to my patient Juanita Ryan”. Dr. Hillman advised Cathy that Ms. Ryan saw Dr. Maddigan on January 31, 2012 and that Dr. Maddigan recommended that Ms. Ryan take anti-depressant/anti-anxiety medication and see a psychologist regularly. [ 76 ] Dr. Hillman advises Cathy that she was providing “cognitive and behavioural psychotherapy” to Ms.

Ryan “on a bi-weekly to monthly basis” but she believed that “Ms. Ryan would definitely benefit from ongoing professional counseling, as suggested by the psychiatrist Dr. Maddigan”. Dr. Hillman did not mention to Cathy that Dr. Maddigan had also recommended that Ms. Ryan be referred to a psychiatrist for regular care (All quotations for Dr. Hillman from Exhibit 6 in A.H. #1). [ 77 ] It is difficult to understand Dr. Hillman’s silence on Dr. Maddigan’s recommendation that Ms. Ryan receive regular psychiatric help. It may simply be that she was discouraged from pursuing it on Ms.

Ryan’s behalf because of the lengthy waiting period that existed at the time, as she told counsel for Ms. Curlew when he cross-examined Dr. Hillman during the trial. But that seems unlikely, given that it was Dr. Hillman who initiated the referral to Dr. Maddigan in the first instance. Let me explain. [ 78 ] In November 2010, Ethel Ann Edwards was the rehabilitation case manager for Unifund, Ms. Ryan’s third-party insurer. Ms. Edwards met Dr. Hillman to discuss Ms. Ryan on October 20, 2010. Following their meeting, Ms. Edwards wrote a letter to Dr. Hillman, dated November 8, 2010, in which Ms.

Edwards documented their discussion. She asked Dr. Hillman to endorse a copy of the letter and return it to her with “necessary corrections”, if Ms. Edwards had “misunderstood or misinterpreted” anything they discussed in their meeting. Dr. Hillman signed the copy of the letter and returned it to Ms. Edwards on November 15, 2010, with no changes noted. [ 79 ] In that letter, Ms. Edwards wrote: “Regarding Juanita’s psychological state, you believe that Juanita is depressed and has developed this as more of a reactive depression related to the motor vehicle accident injuries.

You indicated that it was difficult for you to get Juanita seen by a psychiatrist in a timely fashion and requested that if the writer could do anything to assist, it would be greatly appreciated” (All quotations for Ms. Edwards from page 80 of Exhibit A.H. #1). [ 80 ] Ms. Edwards acted on that request and arranged for Ms. Ryan to see Dr. Maddigan on March 17, 2011. I referred to that meeting above and quoted from the report that Dr. Maddigan provided for Ms. Edwards of the same date as her consultation with Ms. Ryan. Dr. Hillman received a copy of the report from Ms. Edwards. Dr.

Hillman discussed the report with Ms. Ryan and referred to it when she wrote Mr. Roebothan to provide an updated medical report to him on September 23, 2011. [ 81 ] So, in

summary of this point: Between March 17, 2011 and October 15, 2015, Drs. Maddigan (twice, actually), Pratt and Theriault recommended that Ms. Ryan consult regularly with a psychiatrist. Dr. Hillman had copies of their reports and discussed them with Ms. Ryan. It appears that Dr. Hillman initiated the first consultation with Dr. Maddigan out of concern for Ms. Ryan’s “psychological state”, yet Dr. Hillman did not refer Ms. Ryan to a psychiatrist and Ms. Ryan received no psychiatric care beyond what Dr. Hillman said she provided for her. [ 82 ] Similarly, Drs. Maddigan, Pratt and Theriault recommended that Ms.

Ryan receive psychological counseling. While Ms. Ryan did have some “counseling”, none of it came from a registered psychologist. For example, Dr. Hillman says she provided some “cognitive and behavioural psychotherapy” for Ms. Ryan, but Dr. Hillman acknowledged that she is not a psychologist. Ms. Ryan did receive counseling from Una Howard initially and eventually from Kay Noseworthy, but neither is a registered psychologist. [ 83 ] Kay Noseworthy testified about her counseling sessions with Ms. Ryan. There appears to be little structure to the counseling and a surprising lack of focus. Ms.

Noseworthy stopped taking notes about her meetings with Ms. Ryan, after Ms. Ryan’s EAP funding ran out in 2014 and Ms. Ryan started paying for the counseling herself. Until then, Ms. Noseworthy was working through an agency called Homewood Health, who required Ms. Noseworthy to report on her work with Ms. Ryan. [ 84 ] Overall, it appears that nothing has changed for Ms. Ryan in the four years Ms. Noseworthy has been counseling her, except, according to Ms. Noseworthy, she seems to be emotionally stronger. Ms. Noseworthy says she simply offers a “safe space” for Ms.

Ryan and she believes the counseling should continue indefinitely. It strikes me that this is not the “psychotherapy” that Dr. Maddigan had in mind when she recommended, after she evaluated Ms. Ryan on January 31, 2012, that Ms. Ryan receive “cognitive behavioural and interpersonal psychotherapy”. Anti-Depressant Medication [ 85 ] Drs. Maddigan, Pratt and Theriault also recommended that Ms. Ryan begin taking antidepressant drugs, such as Cipralex, an SSRI or SNRI, like Effexor or an antipsychotic medication, like Seroquel. There is evidence that Ms.

Ryan tried Cipralex, although not for an extended period of time and not always at the dosages that the psychiatrists recommended. Dr. Theriault commented about Ms. Ryan’s uneven record with antidepressants in his report from his independent medical evaluation of Ms. Ryan on October 15, 2015: “There has been no attempt to follow up with other trials of antidepressant medications other than the single trial of Cipralex that she had

several years ago” (Exhibit P.S.T. #2). [ 86 ] Ms. Ryan saw Dr. Amanda Compton in Dr. Hillman’s clinic on August 17, 2010. At the time Dr. Compton was filling in for Dr. Hillman who was on holidays. Ms. Ryan complained to Dr. Compton about the stress she was having from dealing with some insurance companies; Manulife, in particular. Dr. Compton diagnosed depression and prescribed Ms. Ryan a one-month supply of Pristiq, an antidepressant, similar to Effexor. It is unclear whether Ms. Ryan actually took the Pristiq, or if she even filled the prescription; and there is no further indication from Dr.

Hillman’s chart that she and Ms. Ryan ever talked about Pristiq again. [ 87 ] On August 10, 2011, Dr. Hillman wrote to Erin Cameron with Manulife to provide “additional medical information…to support Juanita Ryan’s claim for disability benefits”. Dr. Hillman discussed the independent medical evaluation that Dr. Maddigan did in March 2011 and she noted Dr. Maddigan’s recommendations that Ms. Ryan receive “cognitive and behavioural psychotherapy”, of which Dr. Hillman said “…Ms. Ryan has been seeing a counselor regularly for this”. [ 88 ] In the same letter, Dr. Hillman also noted Dr.

Maddigan’s recommendation that Ms. Ryan’s “…treatment could also involve ‘consideration of an SSRI or SNRI’, i.e., pharmacological treatment”. Of this recommendation, Dr. Hillman advised Ms. Cameron thus: “This was discussed with Ms. Ryan (and her mother) and it was decided that medication would be inappropriate”. Dr. Hillman added further, apparently to justify Ms. Ryan’s decision not to try the “pharmacological treatment”: “Ms. Ryan had no previous history of anxiety or depression and Dr. Maddigan also stated that she ‘should benefit from ongoing psychotherapy’” (All quotations for Dr.

Hillman from pages 182 & 183 of Exhibit A.H. #1). [ 89 ] Defence counsel asked Dr. Hillman about this letter when he cross-examined her on November 15, 2017 and, in particular, why she described the antidepressant medication as “inappropriate” for Ms. Ryan. This is how Dr. Hillman responded: “Inappropriate for her given the circumstances. Well in her given circumstances we had already tried her on an SSRI which is one of the medications that I had been suggesting, didn’t see any benefit from being on it and because she didn’t seem to respond to the first one you know again when the next time Dr.

Maddigan saw her we actually went ahead and tried her on the SNRI after all thinking we may as well try it but after mother and Juanita were both really resistant to going on pharmacological medication I could understand that when somebody who had never taken medication on a regular basis and need to be put on a medication that is going to affect her brain”. [ 90 ] Juanita Ryan testified that she used Cipralex, but she was unsure when she began to use it, how long she took it for or how she obtained the drugs. Ms. Ryan testified that Dr. Hillman provided her samples of the drug on an ongoing basis, but Dr.

Hillman denied during her cross-examination that she gave Cipralex samples to Ms. Ryan. However, Ms. Ryan produced a package (Exhibit J.R. #19) on her re-direct examination that appears to be a box of samples for the drug. [ 91 ] Dr. Hillman’s chart shows that she prescribed 10 mg of Cipralex on October 28, 2011 and gave Ms. Ryan further prescriptions for the drug on April 11, 2012 and June 16, 2012 when she increased the dosages to 15 mg and 20 mg, respectively. Dr. Hillman says eventually she replaced Cipralex with Ativan because Ms. Ryan claimed that Cipralex was making her sick. [ 92 ] Pristiq, which Dr.

Compton prescribed for Ms. Ryan in August 2010 while Dr. Hillman was on holidays, is an SSRI and Cipralex that Dr. Hillman prescribed is an SNRI. Exercise [ 93 ] Ms. Ryan sustained soft tissue injuries in the motor vehicle accident. X-rays taken on January 11, 2010 within a few hours of the accident, confirmed she had no broken or dislocated bones. Dr. Furey examined Ms.

Ryan on April 12, 2010 and he offered this opinion of her injuries: “From the subjective and objective evidence available to me today in clinic, this patient would appear to be suffering from a soft tissue, whiplash injury of her neck secondary to a motor vehicle collision” (Page 95 of Exhibit A.H. #1). [ 94 ] Dr. Hillman was of the same opinion when she reported to Glen Roebothan, Q.C. on March 3, 2010: “She sustained musculoligamentous injuries to her neck and shoulder girdle, but also to her hip/back” (Page 3 of Exhibit 2 in A.H. #2). In the same letter, Dr. Hillman noted that she gave Ms.

Ryan “…a series of exercises that were designed to gently mobilize and strengthen her neck and shoulder girdle” (Page 2 of Exhibit 2 in A.H. #2). Dr. Maddigan also recommended that Ms. Ryan “…speak to her family doctor regarding an appropriate exercise program for her physical condition…” (Page 3 of Exhibit B.A.M. #2), and Dr. Pratt also believed that she might benefit from “…maximizing any physical therapies…” (Page 4 of Exhibit D.R.P. #1). [ 95 ] Dr. Hillman referred Ms. Ryan for physiotherapy at their first meeting after the accident, just four days later, on January 15, 2010. Ms.

Ryan met with Bob Menchions, a physiotherapist for the first time on January 19, 2010 and had 44 sessions with him in the 6 months between January and July 2010. By March 8, 2010, Mr. Menchions noted in a report he provided to Unifund, that Ms. Ryan “… has improved in many respects; the pain and headaches are no longer continuous and she doesn’t get lower back pain or right lower limb pain now” (Page 25 of Exhibit B.M. #1). [ 96 ] On April 7, 2010, Mr.

Menchions noted “gradual” progress, in an update he provided to Manulife on that date: “improvement is occurring gradually; exact timeline is uncertain” (Page 100 of Exhibit A.H. #1). In an April 15, 2010 report to Unifund, Mr. Menchions continued this theme, indicating that “[s]he is continuing to gradually improve” and “…I have been gradually increasing her exercise program” (Page 26 of Exhibit B.M. #1). [ 97 ] It appears that Ms. Ryan was still making progress by May 10, 2010 when Mr.

Menchions reported to AOMS Ltd: “Active range of motion (ROM) of the neck and elevation of the right shoulder has recovered to virtually full range now”. But Mr. Menchions observed that “…at times treatment has to deal with her headaches that appear to be brought on by stress as much as anything else” (Page 27 of Exhibit B.M. #1). [ 98 ] By June 7, 2010, when he reported to Unifund, Mr. Menchions noted that “[s]he does find the physiotherapy treatments very helpful for decreasing her headaches, and neck and upper back pain.

Considerable time has been spent managing these symptoms and therefore not so much on progressing her exercise program”. He also noted that the headaches, neck and back pain were partly caused

by stress: “At least some of the symptoms appear to have been brought on by stress, as a result of a dispute with her extended health care provider (Manulife) over short and long-term disability claims” (Page 28 of Exhibit B.M. #1). [ 99 ] Mr. Menchions wrote to Unifund on June 28, 2010 requesting coverage for Ms. Ryan for 20 more sessions. He noted progress with Ms. Ryan’s neck movements but said she still had “a fairly high level of dysfunction”. He was “uncertain” about her discharge date (Page 29 of Exhibit B.M. #1). Ms. Ryan saw Mr.

Menchions again on July 5 and July 9, 2010, but there is no indication that she saw him after that; despite the authorization that Unifund provided on July 15, 2010 for a “…further twenty (20) physiotherapy sessions as per your request” (Page 24 of Exhibit B.M. #1). [ 100 ] Ms. Ryan began seeing Daniel Martyn on September 24, 2010. Mr. Martyn is also a physiotherapist. Ms. Ryan saw him about once a week until January 28, 2011, when she stopped seeing him until May 11, 2011. Ms. Ryan saw Mr. Martyn again on May 16, 25 and May 30, 2011. He closed his file on Ms.

Ryan on November 17, 2011 because of “no further contact” (Exhibit D.M. #1). Ms. Ryan received no physiotherapy after May 30, 2011. [ 101 ] Ms. Ryan said the physiotherapy Mr. Menchions provided helped her a little with the pain she was experiencing but it did not get her back to work so she did not feel it was making her better. As for Mr. Martyn, whose main focus was on her TMJ, Ms. Ryan said the exercises Mr. Martyn provided helped her greatly with that condition, so she did experience some improvement under his care. In her brief, Ms. Ryan noted that she had 78 physiotherapy sessions in total, with Mr.

Menchions between January 19, 2010 and July 9, 2010 and with Mr. Martyn from September 24, 2010 and May 30, 2011, with a 3½-month hiatus between January 28, 2011 and May 11, 2011. [ 102 ] As I noted earlier, Dr. Hillman recommended physiotherapy in her first meeting with Ms. Ryan after the accident. At the same meeting, Dr. Hillman recommended that Ms. Ryan began an exercise program and gave her a set of exercises that “were designed to gently mobilize and strengthen her neck and shoulder girdle”. Dr. Hillman testified that she assumed Ms. Ryan was following her advice to exercise. However, it appears that Ms.

Ryan did not follow Dr. Hillman’s advice for long. Ms. Ryan acknowledged during cross- examination that she gave up all exercises around April 2012. [ 103 ] Ms. Ryan also partook in an aqua therapy strengthening program with Paul Hanrahan. Unifund paid for the sessions and Ms. Ryan says she tried to continue aqua therapy on her own after Unifund withdrew the funding for Paul Hanrahan. But she says could not find a flotation device to provide the buoyancy she required, and she despaired of deriving any benefit from aqua therapy on her own.

This was about the same time and for the same reason that she quit doing her home exercises. [ 104 ] I stated the law that applies to mitigation earlier in these reasons when I discussed O’Brien v. Cochrane from our Court of Appeal. From that case, it is clear that I must first decide if Ms. Ryan failed to mitigate her loss; and, if so, I must then estimate the value of the chance that the treatment recommended would have eliminated or reduced Ms. Ryan's loss if she had complied. [ 105 ] I am satisfied that Ms. Ryan failed to mitigate her loss. Let me explain why. [ 106 ] In Carlson v.

Romanchuk , [1978] 3 A.C.W.S. 309, 1978 CarswellOnt 3193 (Ont. Dist. Ct.) , Vannini, J. stated the law that applies to the duty to mitigate: • Juanita Ryan is obliged to mitigate her damages. • Juanita Ryan cannot claim that she cannot afford to mitigate her damages. • Juanita Ryan is only required to act reasonably when mitigating her damages. • Whether Juanita Ryan acted reasonably is a question of fact. • Bernice Curlew bears the onus of proving that Juanita Ryan failed to mitigate her damages. [ 107 ] Let me apply these principles to this case, starting with the last one first.

Proving a Failure to Mitigate [ 108 ] Without putting too fine a point on her submission, Ms. Ryan says that Ms. Curlew has not proved that she did not mitigate her damages. For example, Ms. Ryan refers to Ms. Curlew’s contention that she may get better of her injuries as “wishful thinking” (Paragraph 17 of Plaintiff’s Post-Trial Reply) and she says that “…[Ms. Curlew] could have retained a new expert and put all those supposed causes for optimism to that expert to establish her case” (Paragraph 17 of Plaintiff’s Post-Trial Reply). [ 109 ] It bears noting, as I do, that the medical evidence that Ms.

Ryan relies on to prove her disability, except for Dr. Hillman, of course, comes from experts that Ms. Curlew or third parties such as Unifund, Manulife, or Atlantic Offshore Medical Services Ltd. (AOMS) retained to assess Ms. Ryan’s condition. I refer in particular to the three psychiatrists, Drs. Maddigan, Pratt and Theriault, as well as Drs. Furey and Heitzner. But what the expert witnesses said, is more important than who retained them; as is what Ms. Ryan did (or failed to do) to rehabilitate herself. [ 110 ] Presently, Kay Noseworthy counsels Ms. Ryan, Tiffany Brien administers acupuncture to her, Dr.

Peter Morey prescribes medical marihuana for her and Ms. Ryan administers the marihuana herself. Ms. Ryan also consults Dr. Hillman regularly and Dr. Hillman says she counsels Ms. Ryan in limited ways. It is noteworthy that Ms. Ryan has never consulted a psychologist or a psychiatrist despite the recommendations that Drs. Maddigan, Pratt and Theriault made as long ago as in 2011 (Dr. Maddigan) and as recently as 2015 (Dr. Theriault). [ 111 ] It is also noteworthy that Ms. Ryan does not take any of the medications that those doctors said she should be taking.

She claims to be taking Cipralex and she produced a box that she says contained samples of the drug that she got from Dr. Hillman. Yet, Dr. Hillman denied during cross-examination that she had given any samples to Ms. Ryan.

[ 112 ] Similarly, Dr. Hillman prescribed an exercise program for Ms. Ryan on January 15, 2010, the first time they met following the accident. While Dr. Hillman believed that Ms. Ryan started doing the exercises when she prescribed them and was still doing them up to the trial, Ms. Ryan acknowledged during cross-examination that she stopped doing all exercises around April 2012. [ 113 ] It is unclear if the psychiatric or psychological counseling that the psychiatrists’ recommended for Ms. Ryan would have helped her with her mental and/or physical injuries.

It is just as unclear that the medication the psychiatrists prescribed for her would have had any salutary effect on Ms. Ryan; or that the exercise program that Dr. Hillman recommended for Ms. Ryan would have benefited her. But the lack of clarity stems mainly from Ms. Ryan’s reluctant acceptance of any of those recommendations. [ 114 ] There was some evidence that Ms. Ryan would have benefited from the recommendations the doctors had for her, although the benefits are limited because of Ms. Ryan’s ambivalent endorsement of or her outright refusal to act upon their recommendations.

For example, Bob Menchions, the physiotherapist wrote in a report he provided to Unifund on March 8, 2010, that Ms. Ryan “…has improved in many respects; the pain and headaches are no longer continuous, and she doesn’t get lower back pain or right lower limb pain now”. [ 115 ] Yet Ms. Ryan stopped visiting Mr. Menchions on July 9, 2010, even though on July 15, 2010 Unifund authorized Mr. Menchions to provide Ms. Ryan with 20 more treatments. Ms. Ryan also stopped seeing Daniel Martyn, the other physiotherapist who treated her after Mr. Menchions. Mr.

Martyn focused on her TMJ problems mainly, but he also attended to her more fully. Mr. Martyn noted that Ms. Ryan exercised when she attended his clinic, using light weights and a stationary bike in his gym and that Ms. Ryan found all of those activities beneficial. [ 116 ] Similarly, Ms. Ryan partook of none of the psychiatric or psychological counseling that the three psychiatrists recommended for her and she also appears to have refused to take the medication they recommended for her, including an SSRI or an SNRI, despite her claims to have taken Cipralex. Dr. Theriault recommended a comprehensive plan for Ms.

Ryan’s rehabilitation. While he had a “guarded” prognosis for her recovery, he offered the following suggestions: • Implement a pain management program, from an interdisciplinary team; • Follow up the single trial of Cipralex she had received with trials of other antidepressant medications; and • Continue psychotherapy. [ 117 ] For which Dr. Theriault, suggested that “[a]ttention to these matters may improve Ms. Ryan’s prognosis and outcome”. [ 118 ] Dr. Theriault’s comprehensive approach to Ms. Ryan’s rehabilitation compares with Dr. John Heitzner’s emphasis on treating the “whole person”. Dr.

Heitzner is a physiatrist. He examined Ms. Ryan on February 13, 2012 at Unifund’s request. He answered the question of whether “...the claimant reached a maximum medical improvement” in his report of the same date this way: “No. At this particular time, I do believe that Ms. Ryan would still benefit for attending Aqua therapy to improve her overall conditioning. Because of her psychological condition at this time and marked depression, I do believe that acupuncture is still a form of adequate treatment although it only provides temporary relief.

She should continue at least for another four months and then be reassessed. During this period, she should continue psychological counseling in order to improve her overall mental state. She may benefit from facet injections to her neck. She may also benefit from a course of Botox injections, but this is left to the discretion of her family physician” (Page 7 of Exhibit J.H. #20). [ 119 ] While Ms. Ryan may have had aqua therapy for two months, she did not have psychological counseling and there is no evidence that she had Botox injections. She partook more widely of acupuncture but Dr.

Heitzner questioned the efficacy of that treatment because “it only provides temporary relief”; and Ms. Ryan had no psychological counseling. [ 120 ] Ms. Ryan referred often to the meetings that she has had with Kay Noseworthy beginning in September 2013. Ms. Ryan was referred to Ms. Noseworthy initially under the employee assistance program. Ms. Ryan first met with Ms. Noseworthy on September 23, 2013 and had 44 visits with her between that date and March 21, 2017. It appears that Ms. Ryan may have seen Ms. Noseworthy 5 or 6 times after that date, leading up to the trial in November 2017. [ 121 ] Ms.

Noseworthy kept no notes of her meetings with Ms. Ryan after June 24, 2014. She offered little clarification of what Ms. Ryan may have achieved during their consultations, other than to say Ms. Ryan may have found some relief from the stress she was feeling in her dealings with Manulife and other issues in her life. Rather surprisingly, Ms. Noseworthy did not even appear to know that Ms. Ryan had established a relationship with Arthur O’Brien sometime in 2014; nor did Dr. Theriault. [ 122 ] So, while Ms. Ryan seems to be much enamoured of the counseling she receives from Ms.

Noseworthy, it is difficult to quantify the gains she made because of it or to find that the counseling has any real, therapeutic quality. More particularly, it is unclear how, if at all, the time that Ms. Ryan spends with Ms. Noseworthy enables Ms. Ryan to mitigate her damages. [ 123 ] The credibility of two people, Ms. Ryan and Dr. Hillman, are critical to assessing the validity of Ms. Ryan’s claim that she tried to mitigate the impact the motor vehicle accident has had on her life. It is clear that Ms. Ryan suffered a soft tissue injury.

She claims that it extends beyond her neck-shoulder girdle, especially on the right side, and she says it affects her lower back, her right arm and her right hip; and may even extend into her legs. [ 124 ] Ms. Ryan has no objective evidence to support her claim that the accident affected her so broadly, particularly beyond the neck- shoulder girdle. X-rays taken after the accident show neither fractured nor dislocated bones. Dr. Furey, an orthopedic surgeon, examined Ms. Ryan on April 12, 2010, just three months after the accident.

His diagnosis from that examination: “[f]rom the subjective and objective evidence available to me today in clinic, this patient would appear to be suffering from a soft tissue, whiplash injury of her neck secondary to a motor vehicle collision” (Exhibit A.F. #2).

[ 125 ] Dr. Furey’s diagnosis of a “soft tissue, whiplash injury of her neck secondary to a motor vehicle collision” is, of course, only the starting point for Ms. Ryan’s present claim that she is now totally disabled from being able to do work of any kind and most likely will be for the rest of her life. Ms. Ryan’s claim is disingenuous and unconvincing. Let me explain. [ 126 ] There were many instances when Ms. Curlew’s counsel challenged Ms. Ryan’s credibility during cross-examination; but none more clearly than the questions he put to Ms. Ryan about vacations she has taken since the accident. Ms.

Ryan says she began her relationship with Arthur O’Brien sometime in 2013 or 2014 after she met him in a bar in downtown St. John’s and they began dating. It appears that her relationship with Mr. O’Brien, a well-known performer on the St. John’s music scene, is well-established and they have taken a number of vacations together. [ 127 ] For example, they flew to Florida for holidays in 2015, 2016 and 2017 and they drove across Newfoundland for a ski vacation at Marble Mountain sometime in 2015 or 2016. Sometimes Ms. Ryan and Mr. O’Brien went alone on these trips and other times one or more of Mr.

O’Brien’s children accompanied them. Ms. Ryan also remembered, after some probing by counsel for Ms. Curlew that she and Mr. O’Brien visited New York City for a three-day trip. She could not recall precisely when they traveled to New York, but she remembered that it was “a couple of years ago” and “in the summer time”. She suggested that it was sometime in the 2013-2015 period. [ 128 ] Ms. Ryan had other vacations or trips abroad than those she took with Mr. O’Brien.

She acknowledged that she went to the Dominican Republic in 2014 to celebrate her 31st birthday and that she visited her sister in Alberta for two to three weeks in the summer of 2013. During her 2013 trip to Alberta, Ms. Ryan accompanied her aunt, an uncle, a cousin and her cousin’s husband on a trip to Las Vegas. [ 129 ] The party of 5 drove from Red Cliff, AB to Las Vegas, NV for a return trip of some 4000 kilometers, or about 40 hours’ driving time. Ms. Ryan also accompanied her mother to Alberta at the end of August 2017 when they visited her sister/daughter who was having surgery. Ms.

Ryan acknowledged that she took in the usual tourist attractions at the places she visited, such as trips to Disney World in Florida or to the Hoover Dam in Las Vegas or a bus tour of New York City when she went there with Mr. O’Brien. [ 130 ] Two things are noteworthy about the vacations that Ms. Ryan took whether with Mr. O’Brien, other friends or family. First, the obvious point: They signify that Ms. Ryan enjoys levels of socialization and activity that casts doubt on her claims that her lifestyle and the general quality of her life are severely compromised by the injuries she sustained in the accident.

As Ms. Ryan reports it, her life has become one of misery and despair, marked by many more “bad” days than “good” ones. [ 131 ] In fact, Ms. Ryan claims that she still has approximately five bad days a week when she has headaches so severe that she cannot walk. “Flare ups” she says can force her to take to her bed for respite and may be triggered by activities so benign as getting her hair done, taking long drives, decorating a Christmas tree or reaching overhead to get an object on high. [ 132 ] The other, less obvious point, comes from the reluctance with which Ms.

Ryan conceded that she had taken most of the vacations. Ms. Ryan revealed practically none of the details of those trips on direct examination; and it was only after persistent probing by Ms. Curlew’s counsel, that she acknowledged them on cross-examination, and then only reluctantly. Regardless of how the trips became known, Ms. Ryan could seldom recall flight details, such as the air carriers, how long the flights were, if she had stopovers en route, if she stayed at places where she stopped, or where she stayed, if she did stay.

Nor could she recall, she said, the flight plans for the trip she and her mother took to and from Alberta at the end of August 2017 to visit her sister, even though it happened just a couple of months before she testified before me. [ 133 ] I believe that Ms. Ryan deliberately withheld the details about her vacations until it was evident that she was not going to put counsel off by stonewalling him. Even then, she answered his questions minimally so that he had to push her repeatedly until she acknowledged more details. This typified Ms. Ryan’s demeanour throughout her cross-examination.

Overall, I took this impression away from her testimony: She minimized the positive aspects of her life since the accident and exaggerated the negative aspects, possibly to enhance her claim. [ 134 ] I note, for example, that Ms. Ryan was on the witness stand for four days in total: all of December 4, 5, and 7, 2017 and half days on December 6 and 8, 2017. Except for a break halfway through December 6, when Ms.

Ryan claimed she was too unwell to continue, she seemed to withstand the rigor of testifying remarkably well, considering the claims she makes of how poorly she generally feels. [ 135 ] I also find that Ms. Ryan has exercised deliberate control over her treatment program. She has been heavily assessed by all manner of health and related personnel since the accident in 2010. Those personnel have recommended physiotherapy, psychotherapy, pharmacotherapy, psychiatric care, aqua therapy, acupuncture, counseling and a simple home exercise program. Ms.

Ryan has availed of some of these therapies but only those that she wants to avail of and only when she wants to do them. [ 136 ] Three psychiatrists recommended that she try some combination of psychotherapy, pharmacotherapy and psychiatric care. Ms. Ryan availed of none. As for obtaining psychiatric care, Ms. Ryan’s response, as directed by Dr. Hillman, is that the two-year waiting list to see a psychiatrist is so long as to be ineffectual. Yet, it has been eight years now since Ms.

Ryan had the accident, allowing for plenty of opportunity in that interval to have obtained psychiatric services even with a long waiting list. [ 137 ] As for psychotherapy, Ms. Ryan is comfortably engaged with Kay Noseworthy, whom she says is helping her deal with her problems and providing a “safe space” for Ms. Ryan. With due respect to Ms. Noseworthy, the counseling she provides for Ms. Ryan does not seem to be of the same intensity or therapeutic quality that Drs. Maddigan, Pratt and Theriault recommended when they suggested Ms. Ryan have psychotherapy. [ 138 ] Ms.

Ryan’s response to the recommendation that she have pharmacotherapy has been ambivalent at best. She claims to have taken Cipralex in the past and still seems to have some of the drug available to her by samples she says she receives from Dr. Hillman, which Dr. Hillman denies. If she has taken the drug, her usage has been sporadic and intermittent, with neither the regularity nor the frequency that might give its use any salutary effect.

[ 139 ] Ms. Ryan’s response to physiotherapy has been equally ambivalent. She had two courses of treatment, one with Bob Menchions and the other with Daniel Martyn. According to the therapists, Ms. Ryan seemed to be making some progress in dealing with her limitations, yet she discontinued both therapies of her own volition, and for no apparent reason. It will be recalled that Mr. Menchions thought the efficacy of his treatment of Ms. Ryan may have been sidetracked by a need to manage her “symptoms” rather than focusing on the exercise program. [ 140 ] Ms.

Ryan also claimed to have experienced some improvement from aqua therapy with Paul Hanrahan. Unifund paid for the sessions with Mr. Hanrahan and Ms. Ryan says she tried to continue aqua therapy on her own after Unifund withdrew their funding. She said she thought she would benefit from doing the exercises that Mr. Hanrahan had shown her; but she says she could not find a flotation device to provide the buoyancy she required to do them, so she gave up on the initiative. [ 141 ] Dr. Hillman met with Ms. Ryan for the first time about the accident, on January 15, 2010, just four days after the accident.

Aside from recommending physiotherapy, Dr. Hillman also recommended that Ms. Ryan try home exercises and she gave Ms. Ryan an exercise program that she thought might help her. [ 142 ] Dr. Hillman believed that Ms. Ryan was doing the exercises for the last e

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