Verma v. Friesen, 2024 BCSC 13

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Verma v. Friesen, 2024 BCSC 13 Date: 20240104 Docket: M203048 Registry: Vancouver Between: Harish Verma Plaintiff And Peter James Friesen Defendant Before: The Honourable Justice Donegan Reasons for Judgment Counsel for the Plaintiff: C. McIvor Counsel for the Defendant: K. Dhaliwal Place and Date of Trial: Vancouver, B.C. April 24–28 and May 2, 2023 Place and Date of Judgment: Vancouver, B.C.

January 4, 2024 Introduction .. 2 General Credibility and Reliability Findings .. 3 Facts .. 5 Prior to the Accident 5 The Accident 11 After the Accident 12 The Expert Evidence . 17 Dr. Ijaz Hussain .. 17 Dr. Garth Kroeker 19 Findings on the Plaintiff’s Conditions and Causation . 21 Findings on Prognosis . 30 Assessment of Damages .. 31 Non-Pecuniary Damages . 31 Legal Principles . 31 Positions of the Parties . 32 Discussion . 32 Pecuniary Damages . 35 Past Loss of Earning Capacity . 35

Future Loss of Earning Capacity . 45 Mitigation .. 54 Future Care Costs . 55 In-Trust Claim .. 58 Special Damages . 62

Summary of Orders .. 62 Interest and Costs .. 62 Introduction [ 1 ] On June 20, 2018, the plaintiff, Harish Verma, was involved in a motor vehicle accident in Abbotsford, British Columbia (the “Accident”). The defendant admits liability for the Accident. [ 2 ] Mr. Verma claims damages for injuries he sustained in the Accident. He claims he suffered some soft tissue pain that resolved within about 18 months of the Accident, but more significantly, he claims he also suffered severe, persistent, permanent and disabling psychological injuries.

He claims non-pecuniary losses, as well as various pecuniary losses including past and future loss of earning capacity, costs of future care and special damages. He also makes an in-trust claim on behalf of his wife. All told, Mr. Verma seeks damages in the total amount of approximately $940,000. [ 3 ] The defendant acknowledges that Mr. Verma was injured in the Accident, but takes issue with the extent, chronicity and causation of the psychological injuries alleged, the claimed impact on his life and the amount of losses claimed.

The defendant urges me to award damages in the total amount of between approximately $80,000 to $150,000. General Credibility and Reliability Findings [ 4 ] Mr. Verma testified, as did his wife, Bharat Verma, who I refer to as Mrs. Verma, and his adult daughter, Vaishali Verma. He also tendered expert opinion evidence from Dr. Ijaz Hussain, a psychiatrist. The defendant tendered expert opinion evidence from another psychiatrist, Dr. Garth Kroeker. [ 5 ] No issue was taken with the credibility of Mrs. Verma and Vaishali Verma.

I find t hey were both honest witnesses who did their best to give an accurate portrayal of Mr. Verma’s life as they experienced and observed it. Mrs. Verma’s memory was generally good, and better than her husband’s. The few areas where her memory was less than firm were as a result of the passage of time and did not reflect negatively on her credibility or the reliability of her evidence as a whole. While Mr. Verma’s wife and daughter were clearly aligned with him, I did not find them to be biased in any way.

They remained appropriately balanced and fair in their evidence. [ 6 ] No issue was taken with the credibility of the expert witnesses. I find they were both highly credible witnesses. I will address the reliability of aspects of their opinions later in these reasons. [ 7 ] The court’s fact-finding role requires an assessment of credibility of witnesses and reliability of their evidence. Credibility refers to truthfulness or honesty and reliability refers to accuracy. Both credibility and reliability are to be assessed in the context of the evidence as a whole.

I recently summarized the principles and factors that inform my assessment in Aselstyne v. Stobbart , 2021 BCSC 26 at paras. 4–8 and in Toora v. Caldwell , 2023 BCSC 1985 at para. 6 . [ 8 ] My assessment of Mr. Verma’s credibility and the reliability of his evidence is central in this case. It is critical in determining his pre and post-Accident states, the causation, nature and extent of his psychological injuries and, ultimately, his damages. It is also important to the weight to be given to the medical opinions in this case, to the extent they rely on Mr.

Verma’s reporting and representation of his pre and post-Accident conditions. [ 9 ] I find Mr. Verma was a very honest witness who tried his best to provide accurate evidence. His evidence had many strengths. Despite enduring obvious and genuine symptoms related to his mental health conditions at times during his testimony, he was a careful and balanced witness. He did not exaggerate or minimize his evidence. He did not testify in such a manner that he appeared to have an agenda. He acknowledged some personally difficult facts and made concessions against his interest.

His evidence was generally consistent with other evidence I accept. [ 10 ] While Mr. Verma was a very credible witness, his evidence was not perfect. His memory for dates and historical details was poor at times, but I find this was due to the passage of time or the relative unimportance of the event he was being asked to recall and not a deliberate effort to undermine the truth-seeking function. Fortunately, Mrs. Verma’s memory for detail was much better, and allowed her to fill in the blanks left by her husband’s evidence. Where their evidence differs, I prefer and accept Mrs.

Verma’s evidence. [ 11 ] Overall, in consideration of the evidence as a whole, I find that Mr. Verma was a credible and reliable witness. Other than in those few areas where I prefer Mrs. Verma’s evidence over his, I accept Mr. Verma’s evidence.

Facts [ 12 ] I will organize my general factual findings in chronological order and will make further specific factual findings as I consider the various issues. Prior to the Accident [ 13 ] Mr. Verma is currently 57 years old. He lived in Patiala, India until he moved to Canada around the age of 39. [ 14 ] Mr. Verma grew up in a home with his parents and his two older brothers. His father worked as the superintendent at Punjabi University in Patiala and his mother was a homemaker. Despite the presence of some physical violence in the home and at school, Mr.

Verma characterizes his childhood as a very good, happy one. [ 15 ] As a child, Mr. Verma’s father struck him on occasion, as did his teachers. Mr. Verma also witnessed his father striking his mother on occasion as well. Mr. Verma explained that he felt afraid during the times he was beaten, but that he never saw these events as out of the ordinary or too significant, citing the culture where he grew up. Now, with the benefit of hindsight, he realizes that what happened was not right. [ 16 ] Mr. Verma did very well in high school.

He went on to obtain bachelor and masters degrees in ayurvedic naturopathic medicine at the Punjabi University in Patiala. He started his own practice in ayurvedic naturopathic medicine in 1988 and, within about six months, bought a bigger clinic. He ran a very busy, successful practice. [ 17 ] In about 1990 or 1991, Mr. Verma met his future wife. She was working as an account assistant with the railway department at the time. They married in 1991 and have lived together continuously since then. [ 18 ] In 1992, the couple welcomed their daughter, Vaishali. Mrs.

Verma took three months maternity leave and then returned to her job. In 1995, they welcomed their son, Siddharth. Mrs. Verma took a total of six months off work after his birth and then returned to work again. During all of this time, Mr. Verma continued to run his ayurvedic naturopathic medicine practice. Mrs. Verma helped him as she could on weekends. [ 19 ] In 2000, Mr. and Mrs. Verma decided they wanted to move their family to Canada. They made this decision because they felt Canada would give their children a better environment and better educational opportunities.

After a lengthy application process, the family moved to Canada as permanent residents in the summer of 2005. [ 20 ] The family first stayed in Hamilton, Ontario. They lived with a friend for only a very short time before finding more permanent accommodation. Although his long-term goal was to one day operate his own business in Canada, Mr. Verma knew the immediate need was to support his family in any way he could, so he set about to find a job, any job. Mrs. Verma did so as well. [ 21 ] Within the first couple of days of the family’s arrival in Canada, Mr.

Verma took a job cleaning his friend’s neighbour’s yard. Within the first week, he found a job making and sanding kitchen cabinets in a factory. He worked there for about eight or nine months before moving to another job in a cheese factory. He also did some part-time painting work on the side. [ 22 ] Mrs. Verma found part-time work in those early days as well, first giving out tickets in a parking lot, then working at a balloon factory at night. She soon found full-time work during the day at a towel packing company. [ 23 ] After about four or five months at the cheese factory, Mr.

Verma learned of an opportunity for he and his wife to work at a Shell gas station in Alberta. As owning their own business was their ultimate goal, Mr. and Mrs. Verma seized this opportunity to gain some experience. They viewed it as a starting point. [ 24 ] The family moved to Canmore, Alberta and the Vermas looked forward to starting their new jobs. Unfortunately, the opportunity was not as promised and did not materialize. Undeterred by this setback, the Vermas quickly found other work in a gas station in another community and moved to Nanton after only two days in Canmore.

Once in Nanton however, Mr. and Mrs. Verma learned that they would not be working at the gas station as they expected, but rather would have to work as a cook and a server at the restaurant attached to the gas station. [ 25 ] Neither of them had worked in such positions before, but again they were undeterred by this setback. They accepted what was offered and made the most of it. They continued to focus on their ultimate goal and approached these unexpected positions with the philosophy that “any experience is good experience”.

Jumping in with both feet, the couple signed a one-year lease on an apartment and enrolled the children in school. [ 26 ] Mr. Verma worked full time as a cook in the restaurant. As Mrs. Verma’s work as a server at the restaurant was only part-time, she approached the operator of a nearby Mac’s Convenience Store (“Mac’s”) and asked if they had any work available. Although the answer was no, Mrs. Verma nevertheless offered to work there for free. With a Mac’s franchise opportunity now in their sights, Mr. and Mrs.

Verma thought working for free would be a good investment as it would give her experience and improve their chances of successfully applying for a franchise. [ 27 ] Before long, this investment paid off. In 2007, Mrs. Verma was offered training with Mac’s in Calgary, which she attended. Mac’s then offered the couple a franchise location to run in Calgary. [ 28 ] When the franchise opportunity came their way in 2007, Mr. and Mrs. Verma moved to Calgary. The couple dedicated themselves to working hard, seven days a week, to provide a good future for their children.

For the first little while, they had to leave their children alone in Nanton during the weekdays so that the children could finish their exams before joining their parents in Calgary.

[ 29 ] Mr. and Mrs. Verma both worked more than full-time hours at the Mac’s store in Calgary. They had one part-time employee and their daughter would occasionally help out as well. Their business was doing very well, but, unfortunately, Mr. Verma was the victim of two robberies, the second of which led Mac’s to terminate their franchise agreement in early 2010. [ 30 ] The first robbery occurred about four or five months prior to the second. Mr. Verma was working alone at night when he was robbed at gunpoint. For a short time after this first robbery, Mr. Verma felt fearful, even when he went to a shopping mall.

He felt nervous if he saw someone wearing a hoodie or if he saw a customer put his hand in his pocket. Mr. Verma did not take any time off work after the first robbery, nor did he take any medication for the fear and nervousness he was feeling. [ 31 ] The second robbery occurred when Mr. Verma was again working alone at night. On this occasion, two masked men wearing hoodies entered the store and demanded cash and cigarettes from him. Mr. Verma complied. On their way out of the store, Mr. Verma thought he heard one of the men say “we should kill him”. This frightened him, so Mr.

Verma defended himself by beating the men with a nearby baseball bat. [ 32 ] Mr. Verma felt scared after the second robbery. He felt anxious, angry, and sometimes had suicidal thoughts. Mrs. Verma noticed her husband’s mood was sad for a time. She also noticed that, for some time after the second robbery, he was scared if he saw someone wearing a hoodie. Despite these feelings, Mr. Verma was able to function and carry on his regular duties at the store. These feelings lasted for only about a month after the second robbery. Mr.

Verma attended counselling for two days, following which he felt his symptoms were gone. He did not take any medication for his symptoms. As Mr. Verma described it, the two robberies were very scary and they impacted his mental health “for a short while, and then I was normal after that.” [ 33 ] In January 2010, a short time after the second robbery, Mac’s terminated the Vermas’ agreement to operate the store. As Mr. Verma understood it, the company determined that Mr. Verma’s use of the baseball bat was a failure to follow policy, and grounds for termination.

This loss was difficult for the couple, as they had done very well with the franchise by that point. [ 34 ] Again, the Vermas were undeterred. After losing the Mac’s store in Calgary, they immediately started to look for the same type of work. While they looked, Mr. Verma took part-time work as a painter. The family continued to live in Calgary. After about three or four months, Mr. Verma was offered an opportunity to own his own gas station, a Husky, in Cranbrook, British Columbia. He and his wife seized the opportunity. [ 35 ] In May or June 2010, Mr. and Mrs.

Verma moved their family to Cranbrook so that they could operate the Husky gas station. Their work ethic remained the same as it had always been. They worked hard, long hours. They employed at least two other people. They were paid through a corporation they set up around this time. [ 36 ] The couple operated the Husky gas station for less than a year. At the end of the fiscal year, in about March 2011, Husky advised the Vermas that they were required to purchase another location if they wanted to keep operating the one they had.

As they were financially unable to do so, their agreement with Husky ended on or about April 1, 2011. [ 37 ] It only took a few weeks before the Vermas seized another opportunity. They purchased and began to run a Fas Gas franchise in Cranbrook. Their work ethic remained as it had always been. They operated this business until about December 2013. [ 38 ] Mr. and Mrs. Verma enjoyed working at Fas Gas, but left because they had aspirations to open their own business and a good opportunity to do so came their way. They were offered an Esso gas station, one that they would own, in Duncan.

This opportunity seemed ideal. It would allow them to be their own boss and sell what they chose. It was in a location near to their son, who had recently begun attending the University of Victoria and was living in Duncan. [ 39 ] The couple moved to Duncan. Again, they worked hard to make this business a success, working seven days a week. Although they increased its sales revenues, the Vermas sold the Esso at about the end of 2014 because they felt their profit margins were not high enough, and they had been unable to see their son as much as they had hoped.

They lost approximately $50,000 in the sale. [ 40 ] Mr. Verma experienced anxiety due to difficulties he experienced during the sale process. He saw a doctor about these symptoms and was prescribed anxiety medication, which he took for a short period of time. [ 41 ] After selling the Esso in Duncan, Mr. and Mrs. Verma decided to travel for a bit before returning to Canada to find a new store. In 2015, they travelled to India to see Mr. Verma’s parents and also travelled to the United States. When they returned, they moved to Mission and began their search for a new business, hopefully a convenience store.

After finding a suitable location in Abbotsford, the Vermas approached a Mac’s sister company, Winks, about the possibility of setting up a franchise there. Following Winks’ approval, Mr. and Mrs. Verma incorporated a company through which to operate the business, renovated the premises themselves, and eventually started operating the Winks convenience store (the “Winks Store”) on about July 1, 2016. [ 42 ] Mr. and Mrs. Verma operated the Winks Store, and were each paid as employees of their numbered company. They both worked long hours, eventually hiring one part-time worker as the store got busier.

The Winks Store was open from 7 a.m. to 11 p.m. each day. Mr. Verma typically worked from about 10 or 11 a.m. to 11 p.m. each day, with the morning and early afternoon duties involving shopping for inventory. His time working in the store itself usually began at about 2 or 3 p.m. Mrs. Verma stayed at the store with him for about an hour or so before heading home. She returned later, bringing him dinner each night. [ 43 ] In addition to the day-to-day running of the Winks Store, Mrs. Verma also liaised with the accountant. In addition to shopping for inventory, Mr.

Verma’s job duties included stocking, cleaning and dealing with customers. Eventually the Vermas applied to have lottery sales in the Winks Store because they believed it would increase their sales. [ 44 ] Mr. Verma felt he had finally found his dream business. He enjoyed working with the customers. He and his wife had complete autonomy. The business required very little financial investment and did not require them to obtain financing. There was no gas station or any of the other complexities that had been involved in their previous businesses.

[ 45 ] In December 2016, Mr. Verma was involved in a single vehicle motor vehicle accident when his car struck a pole. It had been snowing at the time. The airbags in his vehicle deployed and his vehicle was determined to be a total loss. Following this accident, Mr. Verma experienced short-term anxiety, fear of driving and poor sleep. He did not take any time away from work as a result of these symptoms. Mr. Verma and his wife continued to operate their store in the same manner after this. The Accident [ 46 ] The Accident occurred on June 20, 2018. Mr.

Verma was driving his vehicle northbound on Sumas Way, near that street’s intersection with Highway 1 in Abbotsford, when his vehicle was struck by a vehicle owned and operated by the defendant. Mrs. Verma was sitting in the front passenger seat and his daughter’s future mother-in-law and father-in-law, visiting from Sweden, were seated in the back. The defendant turned left in front of Mr. Verma’s vehicle, striking its left side and causing damage to the extent that Mr. Verma’s vehicle was no longer driveable. Firefighters attended the scene. [ 47 ] Mr. Verma was wearing his seatbelt.

He recalled hitting his head in the Accident. He also remembered feeling guilty and “kind of embarrassed” because his new family members were in the vehicle. He has little memory of what he did in the aftermath of the collision, other than going home to sleep for a little while. When asked directly whether he felt any new health symptoms immediately after the Accident and before he went to sleep, he testified that the “scene of the accident left a mark. I couldn’t get rid of that scene in my mind…that scene just kept playing over and over. But I didn’t have any pain.” After the Accident [ 48 ] Mr.

Verma began to develop physical pain soon after the Accident. He first described it as severe pain going down along his whole right ride, with some involvement of his left side as well. It involved his neck, shoulder and back. He also began to wake up in the night. He had images of the Accident scene in his mind and found that he had to walk “back and forth” to try to forget those images. [ 49 ] Within a short time after the Accident, Mr. Verma began to experience a number of other psychological and physical symptoms as well.

He felt “scared, very scared”, to the point he found it difficult to go to the Winks Store. He found he no longer liked interacting with customers. He started spending more time smoking outside the Winks Store, even while customers were inside. He also starting having what he described as “severe neuralgia” in his face. He began to stammer when he spoke. He found when he wanted to say something the “words wouldn’t come out”. He also began to get angry for no reason, break into “cold sweats”, experience breathlessness and a rapid heartrate. Mr.

Verma also began to feel anxious, which he described as wanting to “just run out of the store” and “to keep running and to not stop”. He felt afraid going grocery shopping and driving. [ 50 ] Mrs. Verma noticed many of these symptoms. Within a few days of the Accident, she noticed physical changes in him, including shaky and cold hands, stuttering when he spoke, excessive perspiration on his forehead and waking up in the night “drenched in sweat.” She also noticed changes to her husband’s personality. He now got angry easily and was easily disturbed in the night.

The couple started sleeping in different rooms. [ 51 ] As Mr. Verma’s physical and psychological symptoms continued to worsen, he decided he needed to find a family doctor. He had never needed to find one before. Mr. Verma began seeing Dr. Harleen Bhatti on June 25, 2018. [ 52 ] On that day, Mr. Verma discussed the Accident with Dr. Bhatti, including the anxiety he had been experiencing since it occurred. He confirmed that he had experienced anxiety previously, for short periods of time following the robberies in Calgary and then while in Duncan.

He also confirmed that he had taken medication for anxiety prior to the Accident. He asked Dr. Bhatti for a prescription for the same anxiety medication he took while he lived in Duncan, as he found it had provided him with some relief. [ 53 ] Dr. Bhatti also referred Mr. Verma to massage therapy and physiotherapy related to his physical injuries. Mr. Verma began physiotherapy treatment at Pro Motion Physiotherapy & Sports Injury Clinic on August 10, 2018. Including this first visit, he was seen for treatment there 18 times until the end of 2018.

He was also seen for treatment at Total Care Chiropractic & Rehab Inc. twice in December 2018 [ 54 ] After his first visit with Dr. Bhatti in June, Mr. Verma saw Dr. Bhatti another 12 times throughout 2018. He was prescribed, and took, a variety of medications related to his psychological symptoms, including Citalopram, Trazadone, Clonazepam and others. [ 55 ] At one of his appointments with Dr. Bhatti in July 2018, Mr. Verma expressed having suicidal thoughts, so Dr. Bhatti referred him to the Rapid Access Clinic for Mental Health (the “Clinic”). English is not Mr. Verma’s first language.

His initial intake with the Clinic was delayed because of a language barrier with the caller, but he soon saw Dr. Sonia Uppal, a psychiatrist with the Clinic, in September 2018. [ 56 ] Mr. Verma continued to work at the Winks Store in the first few months after the Accident, but struggled to do so as a result of his symptoms. Mrs. Verma noticed these struggles. They were significant changes in her husband’s work habits. [ 57 ] Mr. Verma was quick to anger, even with customers. He now avoided customers or would act disrespectfully toward them.

He spent more time outside the Winks Store, smoking, even when customers were inside the store. He was more forgetful, and making mistakes on orders and with deliveries, mistakes he had not made in the past. He described instances where he left the store with the intention of making purchases, but would inexplicably come back empty-handed. He was allowing cleanliness, customer service and stocking to slide. Customer’s Google reviews left Mrs. Verma with the impression that they were noticing these negative changes and the Winks Store’s reputation was suffering. [ 58 ] Mr.

Verma began working less and less hours as a result of his symptoms. [ 59 ] All of these changes in Mr. Verma served to increase Mrs. Verma’s workload, both at the Winks Store and at home. Mrs. Verma

was understandably very concerned about the changes she saw in her husband. Mr. Verma was very distressed by them as well. [ 60 ] Mr. and Mrs. Verma eventually sold the Winks Store on December 20, 2018. Why they sold the store is a matter of contention. The plaintiff submits they did so as a result of Mr. Verma’s health. The defendant suggests that their primary purpose in selling the store was to go to India to plan and attend their daughter’s wedding. [ 61 ] Mr. and Mrs. Verma each testified about why they sold the Winks Store. Mr. Verma said they did so because of his health situation.

In cross-examination he agreed that he had used the proceeds of sale to pay for the wedding. When it was suggested to him in cross-examination that the primary purpose in selling their store was to go to India to plan and attend their daughter’s wedding, Mr. Verma testified that “it was partially that. But it was also my health and the intention to come back and buy something bigger”. [ 62 ] Mrs. Verma’s evidence differed somewhat from her husband’s on this point. She testified that they decided they needed to sell the Winks Store because Mr. Verma felt he could no longer operate it. Mrs.

Verma also felt that if things continued to slide as they had been as a result of her husband’s health, the store would lose the value they had built. She was firm in her evidence that they did not sell the Winks Store, and never would have sold the Winks Store, for the purpose of attending their daughter’s wedding. She testified that if the Accident had not occurred, they would not have sold the Winks Store. [ 63 ] I accept Mrs. Verma’s evidence on this issue. It aligns with the preponderance of the evidence.

The Vermas had worked very hard, in challenging and difficult conditions, to find the business that suited them, their dream business. They finally found it and, after two years of hard work, they were realizing some success. The Vermas planned to sell the Winks Store because of Mr. Verma’s health. That they benefitted form the sale and used the proceeds toward their daughter’s wedding does not convince me this was the primary reason for the sale.

There can simply be no reasonable suggestion in all of the circumstances that the Vermas would have sold their store to plan and attend their daughter’s wedding. [ 64 ] After the sale of the business, Mr. and Mrs. Verma attended their daughter’s wedding, but it was a very difficult experience for Mr. Verma as a result of his symptoms. Although he took prescribed medication, he continued to experience anxiety-related symptoms that affected his mood and his ability to be around people. He even struggled to perform his own personal daily routine. [ 65 ] Mr. and Mrs.

Verma returned to Canada about three or four months later with the same intention they held when they left – to find another business to own and operate, “something bigger”. This proved to be very difficult. Although they found a potential opportunity, they realized they could not pursue it because Mr. Verma was continuing to experience significant symptoms. He described these symptoms as feeling afraid, unable to “face the clients”, experiencing body shakes, stammering when he spoke, and having suicidal thoughts. Mr. Verma went back to see Dr. Bhatti on May 6, 2019.

She referred him back to the Clinic. [ 66 ] Mr. Verma received a call from the Clinic that summer, but again experienced communication difficulties. According to his understanding of the conversation, the caller told him that if he was having suicidal thoughts, he should phone them. He told the caller that he was not going to commit suicide. He was prescribed Venlafaxine for treatment of his psychological symptoms in July 2019. [ 67 ] Mr. Verma saw Dr. Bhatti five more times after that, prior to his return to India in September 2019. Upon returning to India, he continued to seek out psychiatric treatment.

He saw Dr. Yoseph Bhagwant Kale, a psychiatrist, on October 4, 2019. After that and until 2021, he attended a private clinic where he was given what Mr. Verma called “high-dose” or “high-potency” medications. Because those medications made him “sleep all day”, his wife encouraged him to again seek out treatment from a psychiatrist, which he did. [ 68 ] Mr. Verma began seeing a psychiatrist, Dr. Arvind Sharma, in March 2021. He saw Dr. Sharma nine times between March 1, 2021 and April 12, 2023. Dr. Sharma has prescribed him certain medications, but Mr. Verma feels they are not effective. Dr.

Sharma remains his psychiatrist today. [ 69 ] Since the Accident, Mr. and Mrs. Verma have not been apart from one another except for two occasions when Mrs. Verma spent time with their daughter and their new grandchild in Sweden. Mr. Verma wanted to go on these trips as well, but he was unable to as a result of his symptoms. Mrs. Verma ensured her husband had support while she was gone, referring to him having a “maid” and both sets of their parents available to him. Mr. Verma found these times alone, away from his wife, extremely difficult.

He called upon another relative, someone aware and understanding of his illness, to help him as well during these times. [ 70 ] As of the date of trial, Mr. and Mrs. Verma continue to live in India with Mr. Verma’s parents. This was not their plan. Mr. Verma testified, and I accept, that he had been living in Canada for about 15 years, has Canadian citizenship and considers Canada his country. He never wanted to leave.

He and his wife planned to continue operating their convenience store with the goal of increasing its revenues and value. [ 71 ] Before turning to my findings on the plaintiff’s condition and causation, I will outline the expert evidence called in this case. The Expert Evidence [ 72 ] Two psychiatrists, both well qualified in their field, prepared independent psychiatric medical evaluations in this case. They each diagnosed Mr. Verma as suffering from certain psychiatric illnesses arising from the Accident.

Their opinions primarily diverge in the areas of the effect of pre-existing conditions, treatment recommendations and, to an extent, prognosis. Dr. Ijaz Hussain [ 73 ] Dr. Hussain assessed Mr. Verma on two occasions . The first assessment occurred on September 16, 2019 and the second occurred on October 15, 2022. He prepared reports outlining his opinions regarding diagnosis, causation, prognosis, disability and treatment recommendations in relation to each assessment. The first report is dated October 27, 2019 (the “First Assessment”) and the second is dated January 3, 2023 (the “Second Assessment”).

[ 74 ] For the First Assessment, Dr. Hussain conducted a two-hour, in person, assessment of Mr. Verma. It was conducted in Mr. Verma’s first language (Punjabi). Mrs. Verma was present as well, but her participation was confined to confirming the accuracy of the information her husband provided. [ 75 ] For the Second Assessment, Dr. Hussain conducted the assessment over Zoom as Mr. Verma was in India at the time. Dr. Hussain interviewed Mrs. Verma separately this time. Again, the participants spoke in Mr. Verma’s first language. [ 76 ] In both the First and Second Assessments, Dr. Hussain diagnosed Mr. Verma with the following conditions arising from the Accident: (

a) major depressive disorder, current episode, moderate to severe; (

b) generalized anxiety disorder (“GAD”); and (

c) post- traumatic stress disorder (“PTSD”). [ 77 ] At the time of the First Assessment, Dr. Hussain recommended Mr. Verma receive regular treatment through a psychiatrist and make adjustments to his medications. By the time of the Second Assessment, Dr. Hussain felt that although Mr. Verma had followed treatment recommendations, his mental health condition had worsened. [ 78 ] Regarding the diagnosis of major depressive disorder, Dr. Hussain found that Mr. Verma’s scores on the screening questionnaire indicated severe depression. He found Mr.

Verma’s mental status examination “clearly fits” with the description of this disorder, as Mr. Verma had “signs of anhedonia, loss of interest, and psychomotor retardation alternating with psychomotor agitation”, as well as depressed mood and affect (Second Assessment at p. 7). He also noted that Mr. Verma’s prescribed anti-depressant medication was not alleviating his symptoms. [ 79 ] Regarding the GAD diagnosis, Dr. Hussain emphasized that Mr. Verma’s score on the screening questionnaire was a high score. He opined that Mr.

Verma exhibited all of the common symptoms of this disorder, including “cognitive, physical, and sympathetic symptoms of anxiety” (Second Assessment at p. 7). [ 80 ] Regarding the PTSD diagnosis, Dr. Hussain opined that Mr. Verma’s questionnaire score, as well as his symptoms, were suggestive of this disorder. He identified Mr. Verma experiences of avoidance, intrusive thoughts, reliving of trauma, numbed emotions and startle responses as “typical features” of PTSD. [ 81 ] Dr. Hussain offered his opinion about Mr. Verma’s prognosis at page 8 of the Second Assessment.

He found it to be “guarded and poor” and explained: … This is because we have not seen any improvement in his condition since the start of the treatment. He is struggling with exactly the same symptoms as he was two years ago. He is gradually withdrawing from his wider community. He is getting more dependent on his family. His caregiver burden is increasing. He is still symptomatic despite all the treatment that he received. [ 82 ] Dr. Hussain also offered opinions about the cause of the diagnosed mental health conditions and the impact of Mr. Verma’s previous traumas. He opined that Mr.

Verma developed these conditions since the Accident, noting that there “is a temporal relationship” between the Accident and Mr. Verma’s functional decline (Second Assessment, p. 11). He also opined, noting that Mr. Verma was not receiving treatment and had recovered from his previous traumas prior to the Accident, that the pre-existing psychological conditions arising from those traumas made Mr. Verma more vulnerable to future psychological complications.

He explained at page 9 of the Second Assessment: While his pre-existing conditions made him vulnerable for development of future psychological complications, they are not completely responsible for the most recent presentation. He had a vulnerability factor present prior to the car accident but the car accident made it worse for him to the point where he became non-functional. He was able to function after previous traumas, but after this most recent trauma, his abilities to return to work significantly dropped. [ 83 ] Dr. Hussain put it another way at page 8 of the Second Assessment when he opined that Mr.

Verma “has a previous history of depression and anxiety, and he was at high risk of return of symptoms again based on his traumatic experience.” Dr. Garth Kroeker [ 84 ] Dr. Kroeker assessed Mr. Verma once on December 14, 2022. He prepared a report outlining his opinions regarding diagnosis, causation, prognosis, disability and treatment recommendations dated December 26, 2022. [ 85 ] Dr. Kroeker conducted a two-hour interview with Mr. Verma over Zoom as Mr. Verma was in India at the time. It occurred in the middle of the night for Mr. Verma. As Dr.

Kroeker does not speak Punjabi, the participants used an interpreter to communicate. [ 86 ] Dr. Kroeker diagnosed Mr. Verma with PTSD and major depressive disorder, with symptoms including: …low mood, angry mood, fatigue, loss of interest, loss of pleasure, sleep disturbance, diminished appetite, hopelessness, ruminations about the Accident, flashbacks about the accident, avoidance of driving cars (though not motorcycles), avoidance of social engagements, and avoidance of hobby activities such as going to the gym. He is also afraid of having a heart attack. (pp. 4 and 5). [ 87 ] Dr.

Kroeker further explained at page 3 that PTSD “is caused by exposure to a frightening or life-threatening situation, leading to fear, negative mood change, avoidant and hypersensitive behaviour, intrusive memories, nightmares or flashbacks, and disruption of normal life activities.” [ 88 ] In terms of pre-existing issues, Dr. Kroeker diagnosed Mr. Verma at page 3 of his report as having a “lifelong history of PTSD, with childhood onset, at first due to severe childhood abuse.” He thought Mr. Verma’s PTSD symptoms settled, but most probably did not disappear during his early adult life.

After settling into a successful life operating a store in Canada, Dr. Kroeker opined that Mr. Verma then developed a “severe exacerbation of PTSD” following the two 2010 robberies in Calgary. These symptoms also settled in the following years. Based on a clinical entry following the 2016 single vehicle accident, Dr. Kroeker thought Mr. Verma could have had

a mild recurrent manifestation of PTSD symptoms at that time. [89] Dr. Kroeker further opined that Mr. Verma developed PTSD and depressive symptoms after the Accident. He found thesesymptoms, which prevented Mr. Verma from working after the Accident, were the “most prolonged and debilitating compared to hisprevious episodes.” He also opined that some of his physical complaints could be due to, or greatly exacerbated by, anxiety. Forexample, various forms of fluctuating skin sensation can result from anxiety and associated hyperventilation. [90] Regarding causation, Dr.

Kroeker found that two hereditary factors predisposed Mr. Verma to depression and anxiety disorders:his father’s anger control problems and his mother’s history of anxiety. He opined at page 13 of his report that these two hereditaryfactors lead to a “significant probability” that Mr. Verma would have developed anxiety or depressive symptoms without the occurrenceof the Accident. Put another way at page 7 of his report, he opined that had the Accident not occurred, Mr.

Verma “still would have hada moderately high probability of having anxiety and depressive symptoms, though likely not a specific fear of driving a car.” [91] Dr. Kroeker agreed in cross-examination that the phrase he used, “significant probability”, lacks clarity. While he could not beprecise (in terms of a percentage) about the likelihood of Mr. Verma having developed these symptoms without the Accident, heemphasized that, in his opinion, the probability of him having developed depressive or anxiety problems was much higher than if hisparents had not had psychiatric symptoms themselves. [92] Dr.

Kroeker made many treatment recommendations, including that Mr. Verma engage in ongoing psychotherapy, and includehis wife and his adult children in some of the sessions. He also recommended that Mr. Verma: see an occupational therapist to assist withhim physically engaging in feared activities again; participate in a sleep study; make medication changes; and see other specialists relatedto his heart, facial pain and speech concerns. [93] Dr. Kroeker is not optimistic about Mr.

Verma’s recovery, noting that he has not engaged in psychotherapy, has limited financialresources, and is living in another country with uncertain health care resources. Nevertheless, Dr. Kroeker feels that the varioustherapeutic options he recommends may have a chance of substantially helping Mr. Verma if he chooses to engage in them. Findings on the Plaintiff’s Conditions and Causation [94] Mr. Verma bears the burden of proving, on a balance of probabilities, that the defendant caused or contributed to the injuries, andthe resulting impacts, for which he seeks compensation. [95] In Borgfjord v.

Boizard, 2016 BCCA 317, leave to SCC ref’d 37210 (9 February 2017), Justice Savage summarized the law oncausation as follows: [54] Causation is a two-step consideration. First, the plaintiff must establish the damage was caused in fact by the conduct of thedefendant: Hussack v. Chilliwack School District No. 33, 2011 BCCA 258 at para. 54. The test for factual causation was restated by theSupreme Court in Ediger: [28] This Court recently summarized the legal test for causation in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181.

Causationis assessed using the “but for” test (Clements, at paras. 8 and 13; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at paras.21-22).

That is, the plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would nothave occurred (Clements, at para. 8). “Inherent in the phrase ‘but for’ is the requirement that the defendant’s negligence was necessary tobring about the injury — in other words that the injury would not have occurred without the defendant’s negligence” (para. 8 (emphasisdeleted)). [55] Scientific proof of causation is not required; common sense inferences from the facts may suffice: Clements (LitigationGuardian of) v. Clements, 2012 SCC 32 at paras. 38, 46.

However, inferences must be based on proven facts and cannot be simplyguesswork or conjecture: Kerr (Litigation Guardian of) v. Creighton, 2008 BCCA 75 at paras. 58-62; Haase v. Pedro (1970), (BC CA), 21 B.C.L.R. (2d) 273 (C.A.) at 279-80, 305. [56] Second, the plaintiff must establish causation in law. This has been described as proving the defendant was a proximate causeof the loss, the damage was not too remote from the factual cause, or the damage suffered was reasonably foreseeable: Hussack at para.54.

Overall the inquiry asks whether the harm is too unrelated to the wrongful conduct to hold the defendant fairly liable: Mustapha v.Culligan of Canada Ltd., 2008 SCC 27 at paras. 11 and 12. [57] It is not necessary for the plaintiff to show the precise injury or the full extent of the injury was reasonably foreseeable, onlythat the type or kind of injury was reasonably foreseeable: Hussack, at para. 71. [96] In Nelson (City) v.

Marchi, 2021 SCC 41, the Supreme Court of Canada reiterated the two inquiries required in the causationanalysis at paras. 96–97: [96] It is well established that a defendant is not liable in negligence unless their breach caused the plaintiff’s loss. The causationanalysis involves two distinct inquiries (Mustapha, at para. 11; Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 13;Livent, at para. 77; A.M. Linden et al., Canadian Tort Law (11th ed. 2018), at p. 309-10). First, the defendant’s breach must be thefactual cause of the plaintiff’s loss.

Factual causation is generally assessed using the “but for” test (Clements v. Clements, 2012 SCC 32,[2012] 2 S.C.R. 181, at paras. 8 and 13; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at paras. 21-22). The plaintiff mustshow on a balance of probabilities that the harm would not have occurred but for the defendant’s negligent act. [97] Second, the breach must be the legal cause of the loss, meaning that the harm must not be too far remote (Mustapha, at para. 11;Saadat, at para. 20; Livent, at para. 77).

The remoteness inquiry asks whether the actual injury was the reasonably foreseeable result ofthe defendant’s negligent conduct (Mustapha, at paras. 14-16; Livent, at para. 79). Remoteness is distinct from the reasonableforeseeability analysis within duty of care because it focuses on the actual injury suffered by the plaintiff, whereas the duty of care

analysis focuses on the type of injury (Livent, at para. 78; Klar and Jefferies, at p. 565). [97] Although Nelson (City) dealt solely with physical injuries, the principles underlying the remoteness inquiry are the same forphysical and mental injuries: Maingot v. Wankowicz, 2023 BCCA 89 at paras. 31–35. [98] Causation must be established on a balance of probabilities before damages are assessed. The governing principle is that theplaintiff must be placed in the position that he would have been in if not for the defendant's negligence, no better or worse.

Tortfeasorsmust take their victims as they find them, even if the plaintiff’s injuries are more severe than they would be for the average person(sometimes referred to as the “thin skull” rule). However, the defendant need not compensate the plaintiff for any debilitating effects of apre-existing condition which he would have experienced anyway (sometimes referred to as the “crumbling skull” rule): Athey v.

Leonati, (SCC), [1996] 3 S.C.R. 458 at paras. 32–35. [99] The Supreme Court of Canada articulated the “crumbling skull” rule in Athey at para. 35 as follows: The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”.The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuriescaused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which theplaintiff would have experienced anyway.

The defendant is liable for the additional damage but not the pre-existing damage …Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future,regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award … This is consistent with thegeneral rule that the plaintiff must be returned to the position he would have been in, with all of its attendants risks and shortcomings,and not a better position. [Emphasis in original; citations omitted.] [100] I agree with Justice Taylor’s observations in Grewal v.

Sanghera, 2021 BCSC 621, that it is important not to place too muchemphasis on the “thin” or “crumbling” labels, and to also recognize that the choice between these two categories is not necessarily binaryin every case. Rather, the court must remain focussed on addressing the “underlying principle that the plaintiff must be returned to theposition he would have been in, with all of its attendant risks and shortcomings, and not put in a better position with respect to each of hisindividual symptoms and conditions”: Grewal at para. 107. [101] The factual and legal causation of Mr.

Verma’s physical injuries is not in dispute here. The defendant agrees, and I find, that Mr.Verma suffered soft tissue injuries, mainly in his neck, shoulders and back as a result of the Accident. He had no pre-existing physicalconditions. The defendant also does not dispute, and I find, that these physical injuries arising from the Accident resolved within about ayear to a year and a half after the Accident. These physical injuries caused Mr. Verma pain and affected his ability to do activities likebend over, turn his neck and other things. [102] The dispute here lies with respect to Mr.

Verma’s psychological injuries. [103] The defendant concedes Mr. Verma has established that he suffered some psychological injuries as a result of the Accident, buttakes the position that there is a significant measurable risk that his predisposition to anxiety and depressive symptoms would havedetrimentally affected him in the future regardless of the Accident. In other words, the defendant argues that, with respect to hispsychological injuries, Mr. Verma is more a “crumbling skull” plaintiff and that this ought to be taken into account in reducing hisdamage award. They rely primarily upon Dr.

Kroeker’s opinion in this regard, urging me to accept his opinion over that of Dr. Hussainon this point. [104] Mr. Verma submits that he has established he suffered severe, persistent, permanent and disabling psychological conditions,including major depressive disorder (moderate to severe), GAD and PTSD as a result of the Accident. He says that these injuries are boththe factual and legal result of the defendant’s negligence. He urges me to reject Dr. Kroeker’s opinion about the likelihood he wouldhave suffered these symptoms without the Accident. Rather than a “crumbling skull” plaintiff, Mr.

Verma urges me to conclude that heis a “thin skull” plaintiff, rendering the defendant liable for his psychological injuries, even if they are unexpectedly severe owing to hispre-existing condition. [105] For the reasons that follow, I agree with the position taken by the plaintiff. I will begin the analysis by defining the issues. [106] The issue here is not whether Mr. Verma has been suffering from psychological health conditions since the Accident.

I amsatisfied from the whole of the evidence, including the evidence of both experts, that he has been suffering from significant psychologicalhealth conditions, diagnosed as major depressive disorder (moderate to severe), GAD and PTSD, since the Accident. The symptoms Mr.Verma experiences associated with these conditions are severe, persistent, disabling and likely permanent. [107] Nor is the issue here whether Mr. Verma had psychological health symptoms at times prior to the Accident. He did. The issuehere, as in Grewal, is: (1) whether and to what extent Mr.

Verma’s psychological symptoms after the Accident are attributable to thesepre-existing conditions, in which case he would have suffered them even without the Accident and should not be put in a better position;or (2) whether the symptoms were separately caused or exacerbated by the Accident in a manner which is not solely attributable to thepre-existing conditions, and is separately attributable to the Accident, and are therefore compensable. I am satisfied the evidenceestablishes the latter. [108] Earlier in these reasons, I made findings about Mr. Verma’s pre-Accident psychological health symptoms.

To summarize, I foundthat Mr. Verma experienced such symptoms related to stressful or traumatic events that occurred in 2010 (two workplace robberies),2014 (sale of the business in Duncan) and 2016 (single vehicle accident). The symptoms he suffered related to these events weretemporary. They each resolved after a short time, following recommended treatment such as counselling or anxiety medication. [109] None of these pre-Accident symptoms, for the short times they lasted, caused Mr. Verma to lose any time from work, nor didthey impact his daily functioning. They were not debilitating. Mr.

Verma was not suffering from any symptoms related to his mental

health at the time of the Accident. He was not receiving any mental health treatment at the time of the Accident. Rather, he was a hard- working, happy, healthy and fully functioning member of society at the time of the Accident. [ 110 ] I find that I cannot accept Dr. Kroeker’s evidence that there is a significant probability that Mr. Verma would have developed these anxiety or depressive symptoms without the occurrence of the Accident. [ 111 ] Dr. Kroeker’s opinion here rests on his determination that Mr.

Verma has a family history of psychiatric symptoms; specifically, anger in his father and anxiety in his mother. As was revealed in cross-examination, the foundation for this determination is far too frail to be considered reliable. [ 112 ] Dr. Kroeker based his determination about Mr. Verma’s family history solely on the information he believed Mr. Verma was communicating to him during their interview. Dr. Kroeker did not have any medical records or any kind of medical assessment pertaining to either of Mr. Verma’s parents. He did not speak to Mr. Verma’s parents. Regarding his mother, Dr.

Kroeker believed that Mr. Verma told him that he witnessed her worrying, which made Mr. Verma think she has anxiety. Dr. Kroeker conceded in cross-examination that relying on Mr. Verma’s subjective comments about his mother is a “weakness in this part of the psychiatric family history reporting”. [ 113 ] Regarding his father, Dr. Kroeker relied on what he perceived Mr. Verma was telling him during their interview as well. Dr. Kroeker felt Mr. Verma’s tone when describing events of childhood abuse was one of “depressed gravity”, as though Mr.

Verma was sharing this information for the first time, and the events had really impacted his life negatively. He felt Mr. Verma was communicating that what happened to him as a child was beyond that which had happened to his peers. [ 114 ] I find that Dr. Kroeker’s perception of what Mr. Verma was trying to communicate is not reliable. [ 115 ] As Dr. Kroeker recognized at the time and confirmed in his testimony, the interview conditions were very poor. It was the first, and only, time he met Mr. Verma. For Mr. Verma, it was the middle of the night.

Neither spoke the language of the other, forcing them to communicate through an interpreter. They both found the interpreter experience challenging. Dr. Kroeker was concerned about poor communication at the time of the interview. He observed that, even with the interpreter, a “very substantial language barrier” remained between them. He felt that Mr. Verma may not have understood all of the questions and that some of the questions may not have been well interpreted. [ 116 ] Dr. Kroeker was concerned enough during the interview about Mr. Verma’s comprehension that he asked him about it directly. Mr.

Verma told him that there were times he would exhibit what he believed were socially appropriate cues to indicate understanding (smiling and nodding), while in fact did not clearly understand the question or the things being said to him. [ 117 ] In hindsight, Dr. Kroeker fairly agreed that communication would have been improved if he had the ability to speak to Mr. Verma in his own language and had more than one session with him. He agreed that two sessions, a few years apart, would have been helpful. He also felt that many sessions with Mr.

Verma would have been helpful. [ 118 ] These communication difficulties undermine the reliability of what Dr. Kroeker perceived Mr. Verma to be saying about his childhood, and perhaps other things as well. [ 119 ] Rather than a “crumbling skull” situation, I find this is a situation, as Dr. Hussain opined, where Mr. Verma’s pre-existing psychological conditions made him more vulnerable to experiencing more serious psychological injuries from the trauma of the Accident than the average person. [ 120 ] The defendant criticizes the completeness of Dr. Hussain’s report and thus the reliability of his opinions.

I would summarize the alleged deficiencies in the following categories: (

a) Dr. Hussain’s failure to gather more detailed information about Mr. Verma’s previous traumas, including in his childhood; (

b) Mr. Verma’s failure to tell Dr. Hussain about anxiety issues he had in Duncan and following the 2016 single vehicle accident; and (

c) Dr. Hussain’s failure to include relevant information in the body of his report, such as referring to medical records he reviewed and whether he conducted a mental status examination. [ 121 ] I find these criticisms do not undermine the reliability of Dr. Hussain’s opinions. Regarding the detail contained in his reports, Dr. Hussain explained, and I accept, that his reports are simply a synthesis of all of the detail he reviewed and received. He felt it unnecessary to refer to all of the detail he considered in the body of the report itself. Regarding further detail about childhood trauma, Dr.

Hussain explained, and I accept, that he felt it clinically unnecessary to delve into any further details. He understood, and accounted for, Mr. Verma’s father’s anger and the difficulties that caused for Mr. Verma as a child in formulating his opinions. Finally, I note that Dr. Hussain’s opinions did not change when provided with additional information, including the previous experiences of anxiety. [ 122 ] I accept Dr. Hussain’s explanations for these alleged deficiencies as reasonable and supportable. Unlike Dr. Kroeker’s opinions, I have no concerns about the reliability of the information that grounds Dr.

Hussain’s opinions. Dr. Hussain assessed Mr. Verma on two occasions, three years apart, which allowed him to get a more complete picture of Mr. Verma, his experiences and his symptoms. He met with Mr. Verma in person on the first occasion. As well, Dr. Hussain and Mr. Verma had no communication difficulties. [ 123 ] I agree with the plaintiff’s position on causation and the impact of pre-existing conditions. There is no reliable evidence before the court that Mr. Verma has any family history of depression, anxiety or PTSD. Similarly, there was no reliable information before Dr. Kroeker that Mr.

Verma has any such family history when he formulated his opinion. Therefore, I find that Dr. Kroeker’s opinion that there is a significant probability that Mr. Verma would have developed anxiety or depressive symptoms absent the Accident as a result of his family history is not grounded in any reliable fact and I give it no weight. For the same reasons, I give Dr. Kroeker’s opinion that Mr. Verma first began to suffer from PTSD in childhood no weight either. Put another way, I have rejected Dr. Kroeker’s opinion that Mr.

Verma would have developed psychological symptoms in any event, without the Accident, as it is an opinion based on unreliable assumptions not grounded in the evidence. [ 124 ] Mr. Verma’s symptoms arising from his major depressive disorder, GAD and PTSD have plagued Mr. Verma since the Accident. These symptoms are completely different than the short-term, episodic symptoms he experienced in the past. The post-Accident

conditions and symptoms are debilitating and have not responded to treatment. [125] Mr. Verma tried to explain how his symptoms affect him on a daily basis. I could see how difficult this was for him to articulate.He provided details and examples, including that he experiences excessive perspiration, feelings of panic, body shakes, clammy hands,and stammering. He is quick to anger, often feels like yelling, wants to “run away”, and has feelings of sadness that fluctuate withfeelings of being “hyper”. Sadly, Mr.

Verma also experiences times where he feels like he has “lost his mind”, and other times where hewants to hit himself or hurt himself “with something very sharp”. Mr. Verma also finds that certain things will aggravate his anxietysymptoms, including noise, mess, or if someone questions him about something. He is anxious driving. He has difficulty concentrating. [126] Mr. Verma does not want his wife to leave his side because he feels afraid when he is alone. When he is alone, his symptoms areaggravated. When with his wife, he can talk through what he is feeling, which helps.

He also practices yoga and goes for long, fast walkswith her, which are two of the techniques he has learned to help him control his anxiety symptoms. Other techniques include focussingon a fan or on his breathing. [127] Mr. Verma’s psychological symptoms cause him to rarely leave the house. He will get groceries and go for walks, but when hetries to force himself into other situations, his symptoms are aggravated. [128] While Mr. Verma had some treatable and episodic anxiety or depressive symptoms related to specific events in the past, he wasnot experiencing mental health symptoms at the time of the Accident.

He has never experienced anything even close to what he nowexperiences since the Accident. [129] I am satisfied that the evidence in this case establishes that the Accident had the effect of injuring not only Mr. Verma’s physicalhealth, but his psychological health as well, resulting in psychological conditions of major depressive disorder, GAD and PTSD. Thesedebilitating conditions would not have occurred without the Accident.

While these injuries may be considered unexpectedly severeowing to his pre-existing conditions, there is no evidentiary basis for me to conclude there is any real and substantial possibility, to anylikelihood, that Mr. Verma would have experienced these debilitating conditions absent the Accident. [130] It follows that no deduction to Mr. Verma’s damages award ought to be applied to reflect any hypothetical future disability arisingfrom depressive and/or anxiety symptoms in the absence of the Accident. Such a hypothetical does not meet the real and substantialpossibility threshold.

I do not consider this a pre-existing condition from which I could find there was a “measurable risk” that he wouldhave suffered from the debilitating psychological conditions he now suffers in any event. [131] To summarize, I am satisfied that Mr. Verma has established that his short-term physical and long-term psychological injurieswould not have occurred but for the defendant’s negligent act. I am also satisfied that this physical and psychological harm suffered byMr. Verma in the Accident was a reasonably foreseeable result of the defendant’s negligent conduct. In other words, I am satisfied thatMr.

Verma’s psychological injuries are both the factual and legal result of the defendant’s negligence. Findings on Prognosis [132] Both Dr. Hussain and Dr. Kroeker opined that Mr. Verma’s prognosis for improvement is guarded or poor. Dr. Kroeker holds outwhat I would characterize as cautious optimism for improvement, if Mr. Verma is able to avail himself of his additional treatmentrecommendations. Mr. Verma’s psychological health conditions arising from the Accident have only worsened over time, despite thetreatments he has followed. The evidence as a whole supports Dr.

Hussain’s opinion that his prognosis is guarded or poor. Assessment of Damages [133] The fundamental principle of compensation in personal injury cases is that a plaintiff should receive full and fair compensation,calculated to place them in the same position as they would have been had the tort not been committed, insofar as this can be achieved bya monetary award: Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 167, citing Ratych v. Bloomer, (SCC),[1990] 1 S.C.R. 940 at 962–63.

Non-Pecuniary Damages Legal Principles [134] The purpose of non-pecuniary damages is to compensate the plaintiff for pain, suffering, disability, and loss of enjoyment of life.Non-pecuniary loss must be assessed for losses suffered by the plaintiff to the date of trial and those he will likely suffer in the future:Tisalona v. Easton, 2017 BCCA 272 at para. 39. [135] In Stapley v.

Hejslet, 2006 BCCA 34 at para. 46, leave to appeal to SCC ref’d [2006] S.C.C.A. 100, the Court identified commonfactors influencing an award of non-pecuniary damages, including: the plaintiff’s age; the nature of the injury; the duration and severityof the pain; the level of disability; emotional suffering; loss or impairment of life; impairment of family, marital and social relationships;impairment of physical and mental abilities; and loss of lifestyle. Generally, stoicism should not penalize the plaintiff: Giang v.

Clayton,Liang and Zheng, 2005 BCCA 54 at paras. 54–55. [136] An award of non-pecuniary damages must also be fair and reasonable to each party. Fairness is measured, in part, against awardsmade in comparable cases. However, other cases only serve as a rough comparator, as each case must be decided on his own facts: Tritesv. Penner, 2010 BCSC 882 at para. 189. The amount of the award does not depend only on the seriousness of the injury, but also on theloss in the context of the specific plaintiff’s circumstances: Tisalona at para. 39.

Positions of the Parties [137] Mr. Verma seeks an award of non-pecuniary damages of $235,000. He relies on the following authorities in support of hisposition: Babkowski v. Perry (December 23, 1982), Vancouver B800591 (B.C.S.C.); Whatley v. Badshah (September 26, 1991),Vancouver B884949, (B.C.S.C.); Shongu v. Jing, 2016 BCSC 901; Debruyn v. Kim, 2021 BCSC 620; Howell v. Strutt,2021 BCSC 92; Kempton v. Struke Estate, 2020 BCSC 2094; and Dabu v. Schwab, 2016 BCSC 613. [138] The defendant submits that an award for damages in the range of $80,000 to $90,000 is fair and reasonable.

He relies on thefollowing authorities in support of his position: Pan v. Lau and Tai, 2020 BCSC 288; Grewal; and Abraha v. Suri, 2019 BCSC 1855. Discussion [139] Mr. Verma gave up his secure career in India, years ago, to pursue opportunities in Canada. He gave up everything to start over,from the bottom. His primary motivation in doing so was to provide a better life for his children. By the time of the Accident, he and hiswife had worked very hard for 13 years to establish their own small business in Canada. Their hard work paid off in 2016 when theypursued the Winks Store opportunity. Mr.

Verma had found his “dream” job. He was good at it and he enjoyed it. The injuries hesustained in the Accident, particularly the psychological injuries, took this dream from him. His symptoms were such that he could nolonger work as he once had. He and his wife, reasonably in my view, felt they had to sell the Winks Store before it lost its value. [140] Mr. Verma is now 57 years old. He has not worked since he and Mrs. Verma sold their store in late 2018. His soft tissue injuriesresolved within about 12–18 months after the Accident, but his psychological injuries have been long-lasting and profound.

Hisprognosis for improvement is guarded or poor, but there is room for some cautious optimism if Mr. Verma is able to avail himself of theadditional treatments recommended by Dr. Kroeker. [141] The psychological injuries Mr. Verma suffered in the Accident have had a serious and negative impact on all aspects of his life.The effects of these injuries have been devastating to Mr. Verma’s personal, social, family, recreational and vocational life. He is achanged man who has completely lost his pre-Accident lifestyle. [142] At the time of the Accident, Mr. Verma was a happy, jolly, healthy and ambitious person.

He was involved in a loving marriageand had close relationships with his children. He was pursuing a job that he loved. He enjoyed socializing and attending family events.His future, after so many years of sacrifice and hard work, was bright. The effects of his psychological injuries have been devastating toall aspects of his personal and vocational life. He is a shadow of his former self. [143] Other than the companionship his wife offers him, Mr. Verma is isolated and withdrawn from contact with family and friends.Mr.

Verma’s marital relationship and the relationship he has with his other family members have been strained and directly impaired. Hissocial relationships have also been directly impaired. [144] Mr. Verma now experiences frequent bouts of sadness, anger and agitation. While his wife and daughter understand that Mr.Verma’s mood changes and withdrawal from family and friends are all symptoms related to his psychological health conditions, theynevertheless struggle with their family’s new dynamic. Mr. Verma is not the person he used to be.

His ambition and drive towards hiscareer goal of owning and operating his own business has been replaced by apathy and despair. He has lost his confidence and his senseof self-worth. Once independent, he finds it hard to be alone. He does less cooking than he did before the Accident and no longer cleansand irons his own clothes. He requires his wife’s assistance and presence at nearly all times. His previously busy life has been replacedwith difficulties getting out of bed. He rarely leaves the house other than to shop for groceries and go for walks with his wife.

Mr.Verma’s emotional suffering, with its physical side effects, has been extreme. He is self-medicating with alcohol. He is frustrated, angry,lonely and frightened. He always carries medication, Clonazepam, in his pocket to take when he experiences a panic attack, like he didon one occasion during the course of his testimony. [145] The effect of these psychological injuries on Mr. Verma’s day-to-day functioning is significant.

He is often unable to even engagein basic activities, has thoughts of self-harm and experiences suicidal ideation. [146] Although no two cases are identical, I have reviewed the authorities provided by the parties and find that this case more closelyaligns with some of the authorities provided by the plaintiff. [147] For example, in Howell, the plaintiff was 48 when he was injured in an accident. His physical injuries were minor, but hesustained serious psychological injuries. He was diagnosed with PTSD and persistent depressive disorder, with a risk of developingmajor depressive disorder.

He had experienced some depressive symptoms prior to the accident, but they had resolved. Justice Macintoshfound that Mr. Howell was a “changed man” as a result of his psychological injuries: Howell at para. 57. He was now passive,unmotivated to continue his work as a photographer and socially and artistically insecure. The court awarded him $190,000 in non-pecuniary damages, which is approximately $210,000 in 2023. [148] Mr. Verma once told his wife that he wishes he would have suffered more serious physical injuries in the Accident, such as abroken leg, rather than the psychological ones he did.

He felt he would have recovered from the broken leg and been well otherwise. Thissentiment aligns with the Supreme Court of Canada’s description of the grave consequences of serious mental injuries in Saadati v.Moorhead, 2017 SCC 28, where Justice Brown for the Court wrote: [23] I add this.

As to that first necessary element for recovery (establishing that the defendant owed the claimant a duty of care), it isimplicit in the Court’s decision in Mustapha that Canadian negligence law recognizes that a duty exists at common law to take reasonablecare to avoid causing foreseeable mental injury, and that this cause of action protects a right to be free from negligent interference withone’s mental health.

That right is grounded in the simple truth that a person’s mental health — like a person’s physical integrity orproperty, injury to which is also compensable in negligence law — is an essential means by which that person chooses to live life andpursue goals (A. Ripstein, Private Wrongs (2016), at pp. 87 and 252-53). And, where mental injury is negligently inflicted, a person’sautonomy to make those choices is undeniably impaired, sometimes to an even greater degree than the impairment which follows a

serious physical injury ( Bourhill v. Young , [1943] A.C. 92 (H.L.) , at p. 103 ; Toronto Railway , at p. 276). To put the point more starkly, “[t]he loss of our mental health is a more fundamental violation of our sense of self than the loss of a finger” (Stevens, at p. 55). [ 149 ] In consideration of all of the foregoing, I assess Mr. Verma’s non-pecuniary damages at $210,000. This award includes considerations related to any loss of housekeeping capacity. It also factors in a slight reduction for the pain, suffering and loss of enjoyment of life Mr.

Verma experiences in relation to his facial pain, which condition the evidence falls short of establishing was caused by the Accident. Overall, I find such an award is fair and reasonable in the circumstances. Pecuniary Damages Past Loss of Earning Capacity Legal Principles [ 150 ] An award of damages for loss of earning capacity, whether in the past or in the future, compensates a plaintiff’s pecuniary loss. Compensation for past loss earnings is based on what a plaintiff would have, not could have, earned but for the accident-related injuries: Rowe v.

Bobell Express Ltd. , 2005 BCCA 141 at para. 30 . [ 151 ] The burden of proof of actual past events is a balance of probabilities. However, an assessment of both past and future earning capacity involves consideration of hypothetical events. An award for past loss of earning capacity requires the court to assess how a plaintiff’s life would have unfolded in the pre-trial period absent the injury. Such hypothetical events need not be proven on a balance of probabilities.

They are given weight according to their relative likelihood, and will be taken into consideration as long as the hypothetical event is a real and substantial possibility and not mere speculation: Grewal v. Naumann , 2017 BCCA 158 at paras. 44 , 48 and 49. [ 152 ] Pursuant to s. 98 of the Insurance (Vehicle) Act , R.S.B.C. 1996, c. 231 , the plaintiff’s recovery is limited to net income loss: Rizzolo v. Brett , 2009 BCSC 732 at para. 72 , aff’d 2010 BCCA 398 . Positions of the Parties [ 153 ] Mr. Verma seeks a net award of $135,000 under this head of damage.

He submits that, had the Accident not occurred, he would have continued to work at the Winks Store throughout the pre-trial period, and until age 65. He further submits that he has established that his psychological injuries arising from the Accident have prevented him from working at all during the pre-trial period, causing a pecuniary loss. [ 154 ] Mr. Verma submits that his pecuniary loss should be assessed using an annual income of $40,000 as an appropriate baseline.

This amount, he submits, represents a rough representation of his pre-Accident earnings in the closest fiscal year to the Accident ($30,000) plus an additional amount ($10,000) reflecting half the increase in the business’ shareholders’ equity at that time. Adjusting the gross income of $40,000 to reflect a 20% income tax rate yields a net annual income of $32,000. Multiplied by the 4.33 years Mr. Verma was unable to work in the pre-trial period, this yields a loss, before any contingency deductions, of $138,560. [ 155 ] Mr.

Verma argues that if any specific or general negative contingencies are found to apply, they should be balanced out by the specific positive contingency that the Vermas’ business would have experienced growth over this period. As this is an assessment rather than a calculation, Mr. Verma submits that $135,000 is a fair and just award for his loss of past-income earning capacity. [ 156 ] The defendant submits that Mr. Verma’s injuries arising from the Accident did not cause a loss of capacity leading to any economic loss. He urges me to consider that there are two distinct periods in the pre-trial period.

The first period is from the date of the First Accident to the date of the sale of the Winks Store on December 20, 2018 (the “First Period”). The second period is from December 20, 2018 to the time of trial (the “Second Period”). [ 157 ] For the First Period, the defendant submits that Mr. Verma has failed to establish any loss of earning capacity leading to a pecuniary loss. He emphasizes that Mr. Verma continued to work at the Winks Store during the First Period and, although he worked less hours than his wife, he continued to be paid for the work he was doing.

Importantly, there is no precise evidence about what salaries each of them took in this period. Further, the defendant points to the fact the Vermas employed part-time students at the Winks Store during the First Period, but there is no evidence about when they worked there, their hours or their salaries. [ 158 ] For the Second Period, the defendant submits that the plaintiff has failed to establish that he suffered a loss of earning capacity from his Accident-related injuries and, if he has, he has failed to establish any pecuniary loss arising from it. The defendant argues that it was not Mr.

Verma’s injuries that caused him to sell the Winks Store and never work again, but rather his desire to plan and attend his daughter’s wedding in India and then move back to India permanently to care for his elderly parents. To reach this conclusion, the defendant urges me to consider the primary purpose of the Vermas’ move to Canada (to give their children opportunities) in light of the timing of the Vermas’ move back to India (when their children were well-settled in their careers). He says that, having accomplished his goal in Canada, it follows that Mr.

Verma chose to return to India to care for his elderly parents, not for any reason related to the Accident. [ 159 ] Alternatively, if I find that Mr. Verma’s injuries caused a loss of earning capacity leading to a pecuniary loss in the Second Period, the defendant submits that his loss should be limited to one year’s income in the amount of $30,250 (less a 20% deduction to derive a net award), which is the average of Mr. Verma’s T4 earnings for the 2018 and 2019 taxation years. [ 160 ] In assessing the loss as he suggests, the defendant urges me to rely on Mr.

Verma’s evidence that his physical pain would increase his anxiety, which in turn affected his ability to work. Given that Mr. Verma did not seek treatment for his psychological injuries after October 2019 and until March 2021 and given that his physical injuries resolved about a year after Mr. Verma sold the Winks Store, the defendant asks me to conclude that Mr. Verma was in position to return to work, if he wished, by the end of 2019.

From this, the defendant argues that Mr. Verma’s loss of earning capacity has not been established beyond that point. Discussion [ 161 ] I find there is a real and substantial possibility, to a very high degree of likelihood, that were it not for the Accident, Mr. Verma would have continued working at the Winks Store during the entirety of the pre-trial period. He would have continued to work long hours toward his goal of making his business, his dream business, as financially successful as it could be. That the likelihood of this possibility is very high is supported by several facts. [ 162 ] Mr. and Mrs.

Verma moved to Canada to provide their children with better opportunities. In the course of doing so, they worked incredibly hard, from the ground up, to find a business they could run on their own. They considered Canada their home and had no intention of moving back to India at any point. After years of moving to different communities throughout the country, and operating different businesses, Mr. and Mrs. Verma finally found the one they wanted. The Vermas operated their business for two years prior to the Accident. They worked as hard as they ever did.

They enjoyed the work and were experiencing some financial success. They planned to continue. On the evidence, there is simply no real and substantial possibility that Mr. Verma would have not continued to work at the Winks Store, in the manner I have described, during the entirety of the 4.33-year pre-trial period. [ 163 ] The suggestion Mr. Verma sold the Winks Store and moved back to India to care for his parents, just like the suggestion he did so to plan and attend his daughter’s wedding, does not rise above the level of speculation. The defendant argues that Mr.

Verma left Canada because his goal regarding his children had been achieved and he needed to care for his elderly parents. I accept Mr. Verma’s evidence that he had no intention of leaving Canada, for any reason. His children had achieved success, but Mr. Verma and his wife had spent many years in Canada and had finally found a business they could own themselves. They considered Canada home. Mr. Verma had no intention of moving to India to care for his parents. [ 164 ] I find as a fact that Mr. Verma has suffered a loss of earning capacity

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