JENNY VIENNEAU Plaintiff - v. -, 2023 NBKB 170

2023 NBKB 170 BC-206-2014 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF BATHURST BETWEEN: JENNY VIENNEAU Plaintiff - and - ÉVERARD BRIDEAU - and - AN UNKNOWN PARTY Defendants BEFORE: The Honourable Justice Ivan Robichaud. AT: Bathurst, New Brunswick. DATES OF TRIAL: February 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 21, 22 and 23, 2023. DATES OF FILING OF SUBMISSIONS: March 28 and April 4, 2023. DATE OF DECISION: September 29, 2023. LAWYERS: Michael B. Murphy, Q.C. and Taylor Morin, for the Plaintiff. Bruce D. Grant and Bionca Bastarache, for the Defendant Éverard Brideau.

Table of Contents I. INTRODUCTION .. 3 II. CREDIBILITY AND RELIABILITY . 3 i. The Plaintiff . 3 ii. The Defendant . 7 III. APPORTIONMENT OF LIABILITY . 8

IV. DAMAGES . 12 A. General Non-Pecuniary Damages . 12 i. The Plaintiff’s Situation . 12 ii. The Plaintiff’s State of Health Prior to the Accident . 12 iii. The Accident and its Consequences . 14 iv. The Plaintiff’s Testimony . 25 B. Past Pecuniary Losses . 32 C. Future Pecuniary Losses . 40 D. Loss of Valuable Services . 41

i) Past Losses . 41 ii) Future Losses . 41 E. The Cost of Future Care . 43 i. Drugs . 43 ii. Private Health Insurance . 44 iii. Medical Equipment . 45 iv. Medical Services . 46 F. Subrogation .. 47 G.

Summary of Amounts Awarded .. 47 V. COX v. CARTER ORDER .. 47 [TRANSLATION] Robichaud, J.: I.

INTRODUCTION [ 1 ] On January 9, 2014, in Pont-LaFrance, New Brunswick, the Plaintiff was injured in a collision between her vehicle and that of the Defendant Éverard Brideau shortly after the Plaintiff’s vehicle was overtaken by an unknown vehicle. [ 2 ] The facts are highly disputed and contradictory, both on the Plaintiff’s side and on the Defendant’s side. [ 3 ] The Plaintiff’s original claim included a claim against Security National Insurance Company but, by consent of the parties, that claim was struck out after the Defendant admitted one percent liability. II.

CREDIBILITY AND RELIABILITY [ 4 ] It is not surprising that this dispute could not be settled out of court. Both the Plaintiff and the Defendant are plagued by serious credibility and reliability issues. Of course, I always bear in mind that the burden of proof rests on the Plaintiff.

[ 5 ] Before determining which facts are accepted by the Court, I will recall the most striking examples of inconsistencies, both between the parties’ statements prior to the trial and those made at trial, and between their statements and the physical or documentary evidence, in order to illustrate the difficulty of determining the facts. [ 6 ] A certain level of contradiction can always be expected: remembering the details of an event is not always easy and, over time, the perception of events can change.

However, the level of contradictions in this case is very high, which makes it very difficult to determine the facts. i. The Plaintiff [ 7 ] Both during the examination for discovery, held in October 2015, and at trial, the Plaintiff testified that she had been in perfect health prior to the accident, except for a workplace accident sustained in 2013.

She denied having sustained injuries in a fall and having ever been treated for psychological or psychiatric problems, including depression in the five years prior to the accident. [ 8 ] At trial, she stated that she had never had back pain, except for a brief period of time following the workplace accident. [ 9 ] However, her medical records show that she was treated for back pain in 2012 after exercising.

She received medication for pain and inflammation. [ 10 ] Her file with the Workplace Health, Safety and Compensation Commission (WHSCC) shows that she reported a fall during a move in February 2013 that caused bruising to her buttocks and lower back, but that she did not require medical attention. [ 11 ] At trial, she indicated that she was a cheerful person prior to the accident. The Plaintiff’s record with Mental Health Services shows that she was being monitored for anxiety problems. In 2005, she was referred for self-mutilation and, in 2011, for panic attacks and stress in the workplace.

She was diagnosed with a panic disorder with agoraphobia, an adjustment disorder and a mixed anxiety and mood disorder. She had to take antidepressants. She admits that she had to go to the hospital during a panic attack. [ 12 ] Under cross-examination, she explained the self-mutilation events by saying that she and her friends had seen it in a movie and were seeking attention. She had cut herself. Yet she had been referred to Mental Health Services for this problem. [ 13 ] In 2016, the Plaintiff informed Mental Health Services staff that she believed she was depressive.

This is consistent with the final 2013 WHSCC report which noted symptoms of severe depression on initial assessment. [ 14 ] Under cross-examination, the Plaintiff denied having had a difficult childhood and a history of physical and sexual abuse. Her record with Mental Health Services shows that she had a difficult childhood and had experienced physical and sexual abuse. When confronted with this document, she denied it and then said that she had perhaps been touched on the buttock when she was young, but nothing more, and that it had not affected her.

Yet, it was important enough to report it during the mental health assessment. [ 15 ] The evidence shows that her childhood was difficult. Her parents separated when she was young. Her father was addicted to alcohol and drugs. The Plaintiff herself has a history of dysfunctional personal relationships with spouses who used drugs, were physically abusive and stole from her. [ 16 ] The Plaintiff testified that, on the evening of the accident, she left her mother’s house around 7:00 p.m. She wanted to go to a store in Tracadie which closed at 9:00 p.m. The accident happened a few minutes after she left.

However, both police and ambulance attendants’ notes confirm that the accident occurred shortly after 9 p.m. [ 17 ] At the examination for discovery, the Plaintiff stated that immediately after the accident, she telephoned her mother on her cell

phone. On direct examination, she testified that she borrowed a cell phone from a woman at the scene of the accident. [ 18 ] In a statement to her insurer dated January 20, 2014, she stated that before the accident, she saw the unknown vehicle approaching (the vehicle was travelling in the same direction as the Plaintiff). On cross-examination, she denied this fact. [ 19 ] On January 10, 2014, she told the police that the unknown vehicle had overtaken her on her left, at high speed, at the bottom of the hill known as “la butte à Nicholas” [the Nicholas hill]. She told Dr.

Larouche that she had been overtaken as she was going up the hill. At trial, she testified that the unknown vehicle had overtaken her at the top of the hill and denied, on cross-examination, that it had possibly been at the bottom of the hill. It is true that the statement of January 10, 2014, was made when the Plaintiff had just been hospitalized and had undergone an emergency caesarean

section and foot surgery. However, the statement is very specific on several points. [ 20 ] In her January 20, 2014, statement to her insurer, the Plaintiff indicated that she was by the Club de Pont-LaFrance just before LeBouthillier Road (from which the Defendant’s vehicle exited) when she realized that the vehicle behind her was beginning to overtake her. When the unknown vehicle was parallel to hers, the Defendant’s vehicle exited LeBouthillier Road.

However, at trial, she said that she had seen the brake lights of the unknown vehicle when it avoided the Defendant’s vehicle. [ 21 ] On January 10, 2014, she told the police officer that when she crested the hill, she saw the unknown vehicle pass the Defendant on his left, while trying to avoid hitting him. She also told Dr. Larouche that the Defendant’s vehicle was crossing the lane while she was at the crest of the hill.

At trial, she testified that after the unknown vehicle overtook the Defendant, she saw the brake lights of the unknown vehicle and, immediately afterwards, saw the Defendant’s vehicle in front of her, straddling both lanes. On cross-examination, she denied having seen the unknown vehicle manoeuvre to avoid the Defendant’s vehicle. [ 22 ] On January 28, 2014, she made a statement to the effect that when she saw the Defendant’s vehicle, her reaction was to hit the brakes.

Both at the examination for discovery and at trial, she testified that she does not remember applying the brakes. [ 23 ] Both at the examination for discovery and at trial, she indicated having struck the Defendant’s vehicle head-on. The documentary evidence as well as the testimony of expert witnesses and other witnesses all support the finding that the impact was more akin to friction between the sides of the two vehicles. [ 24 ] In 2016, she described her pain to her doctor as a sharp, electric-type pain on the top of her foot.

In 2021, she said her pain was in her ankle. [ 25 ] On April 6, 2021, the Plaintiff told Dr. Dumais that she was still experiencing the same problems but, nine days later, she told Dr. MacDonald that her condition had clearly improved. [ 26 ] At trial, the Plaintiff testified that prior to the accident, she was happy with her job at a nursing home, Manoir du Lac. Her file with the WHSCC shows that she had problems and was dissatisfied at work. She said that the work atmosphere was negative. [ 27 ] At trial, the Plaintiff testified that she worked overtime most weeks.

Her records of employment show that she worked overtime 17 weeks out of 38. [ 28 ] During her examination for discovery as well as upon assessment by Dr. Dumais, Mrs. Vienneau denied having any neck pain. At trial, she said that she had been suffering from permanent neck pain since the accident. [ 29 ] At trial, the Plaintiff denied ever having intended to marry David Comeau.

When confronted with a post on her Facebook page announcing her engagement, complete with a ring, she said she had forgotten about it. [ 30 ] On cross-examination, the Plaintiff denied that David Comeau had drug problems and that he had been abusive towards her and

the children. However, in 2017, the social worker had noted that the Plaintiff believed Comeau was a cocaine user and that he had previously grabbed her forcefully by the arm, causing bruises, and had used physical force against the Plaintiff's son. [ 31 ] The Plaintiff testified that she suffered an episode of paralysis sometime in late 2017, which lasted approximately one year. She indicated that since then, she has been unable to move other than in a wheelchair.

When shown photographs on her Facebook page suggesting that she was using crutches on the beach, she admitted to being able to do so. [ 32 ] In December 2018, the Extra-Mural nurse noted that the Plaintiff could walk with her adapted boot and crutches. In January and February 2019, the nurse noted that the Plaintiff could walk with a cane and was making good progress. Also in 2019, Dr. Dumais noted that the Plaintiff could move around better.

At trial, the Plaintiff testified that the facts recorded by the Extra-Mural were false and that the nurses were lying. [ 33 ] In August 2019, the physiotherapist noted that the Plaintiff could now walk a distance of 25 metres with a walker. It was recommended that she use the walker instead of her wheelchair. [ 34 ] The Plaintiff testified that she did not go ahead with the surgery suggested by her doctors because she feared it would worsen her situation.

However, the documentary evidence shows that she missed the surgery because she said she had no one to take care of the children. [ 35 ] At trial, she testified that her medication was necessary and reduced her pain. At the examination for discovery, she had said otherwise. [ 36 ] The Plaintiff testified that she was no longer able to train and keep fit. In 2022, she posted a photo on her Facebook page showing her kneeling on her bed in exercise attire. She said she had spent the day training.

In another post, she said she does yoga. [ 37 ] She testified on direct examination that she could no longer go camping with the children. Yet, the documentary evidence shows that in 2017, she bought a tent and went camping with David Comeau’s children. [ 38 ] The Plaintiff testified that she could no longer go out with friends or play actively with her children. However, her Facebook and TikTok accounts show her: a. baking a cake with her daughter; b. putting on a puppet show, on all fours under a sheet for an extended period of time; c. going to the beach and swimming; d. in a photo on horseback and in a canoe.

She denies using her cane, only her wheelchair, but her cane is visible in one photo; e. in a photo in the loft of a cottage, an area accessible only by ladder; f. taking holidays with her children and going to Pabineau Falls on at least two occasions; g. going to see a musical performance in 2021. A photo shows her sitting at a picnic table; h. repeatedly going to the beach alone with the children, etc. [ 39 ] There are other inconsistencies.

Some are minor and others, as I’ll show later, can be explained. [ 40 ] Finally, several of the inconsistencies relating to the intensity of the pain and the residual abilities can be explained by the psychological disorders from which the Plaintiff suffers.

ii. The Defendant [ 41 ] The Defendant Éverard Brideau’s direct examination was short, but significant inconsistencies emerged on cross-examination. [ 42 ] During his examination for discovery, the Defendant testified that he had been overtaken by an unknown vehicle but could not say whether it was a car or a truck. However, at trial, he was adamant that it was a truck. In a statement to an insurance adjuster, he referred to a car. He never told the police that the vehicle was a truck. On cross-examination, he explained that from his subconscious, he could now say that it was a truck.

He added that the term [TRANSLATION] “car” included a truck. [ 43 ] While he was adamant at trial that he had not consumed alcohol on the day of the accident, he was unsure at the examination for discovery. [ 44 ] He testified at the examination for discovery that the overtaking by the unknown vehicle and the accident occurred when his vehicle had [TRANSLATION] “almost” reached its lane.

However, at trial, he was emphatic that his vehicle was completely in that lane and had moved forward slightly in it at the time of the accident. [ 45 ] At trial, the Defendant said that he did not speak to the Plaintiff about the details of the accident when he went to her car immediately after the accident. Yet, in an earlier statement, he said that he had questioned the Plaintiff about what had happened.

He tried to reconcile the two versions by saying that he had not spoken to the Plaintiff, but rather that it was the Plaintiff who was speaking. [ 46 ] When confronted with inconsistencies, he claims to have a better recollection of the facts now than at the time of his earlier testimonies or statements. He does not, however, recall having stated during his examination for discovery that, after the unknown vehicle had overtaken them, his passenger had shouted that another car was coming.

Later, he said that he could be mistaken because time had passed but denied that his memory was fresher in 2018 than at trial. [ 47 ] During his examination for discovery, he testified that he was very familiar with the site of the accident because he had lived in the area since birth and that he was very familiar with the hill. However, at trial, he said that it was only after the accident that he realized that it was a blind hill. Yet, during his examination for discovery, he had described the hill as a “blind hill.” III.

APPORTIONMENT OF LIABILITY [ 48 ] Having considered the totality of the evidence, I accept the following facts as proven: [ 49 ] On January 9, 2014, the weather was good. The road was dry, but there was snow on the sides of the road. [ 50 ] Earlier in the day, the Plaintiff had gone to her mothers’ house to prepare her car for sale.

Her then spouse had taken another car. [ 51 ] When it came time to leave, at around 9 p.m., the two vehicles took Route 370 towards the Plaintiff’s house, which was not very far away. [ 52 ] Both parties are familiar with the area. [ 53 ] An unknown vehicle overtook the Plaintiff’s vehicle at high speed.

[ 54 ] The Defendant Éverard Brideau arrived at the intersection of LeBouthillier Road. He came to a complete stop, then moved his vehicle forward slowly to get a better look, given the snowbanks. He looked first to his right (in the direction from which the Plaintiff was coming) and then to his left. [ 55 ] The distance between the intersection and the top of the hill is 135 metres. [ 56 ] Seeing no vehicle coming, he undertook to turn left and thus to cross the first lane and then take the southbound lane.

He is [TRANSLATION] “lead-footed” and proceeded speedily. [ 57 ] The unknown vehicle overtook the Defendant’s vehicle on its left. Ozias Brideau, a front-seat passenger in the Defendant’s vehicle, exclaimed: [TRANSLATION] “Did you cut off that car?” [ 58 ] Shortly afterwards, Claire Brideau, a rear-seat passenger in the Defendant’s vehicle, shouted: [TRANSLATION] “[T]here’s another car.” [ 59 ] The Plaintiff realized that a car was overtaking her at high speed.

She then noticed that car’s brake lights and saw the Defendant’s vehicle just before impact. [ 60 ] Brideau’s vehicle had practically completed its left turn and was mostly in the southbound lane. [ 61 ] The Plaintiff’s vehicle struck the Defendant’s vehicle lightly, rubbing it on its side. The impact occurred approximately fourteen metres from the intersection. [ 62 ] The Plaintiff lost control of her vehicle.

It went through the snowbank and then through a neighbours’ driveway, hit a tree and bounced a little further. [ 63 ] The Plaintiff had the right of way. [ 64 ] The Plaintiff’s testimony varies as to the location of her vehicle when it was overtaken by the unknown car. Depending on the version, the overtaking took place at the bottom of the hill, in the middle of the hill, at the top of the hill or even further away. [ 65 ] According to the Plaintiff, she was travelling at the speed limit, i.e., 80 km/h.

According to the Defendant, she was going much faster. [ 66 ] Considering the time elapsed between the moment when the Defendant moved forward after stopping at the intersection and the time and place of the impact, the experts on both sides attempted to determine the speed of the Plaintiff’s vehicle. [ 67 ] These analyses all suffer from the lack of specificity of the data on which they are based. [ 68 ] The time between the moment when Éverard Brideau left the intersection and his vehicle being overtaken by the unknown vehicle varies by several seconds.

Also, it is not easy for witnesses to an accident to determine the number of seconds between two events. [ 69 ] The time between the moment when Éverard Brideau’s vehicle left the intersection and the impact with the Plaintiff’s vehicle also varies.

[ 70 ] In their analysis, the CEP accident reconstruction experts attempted to determine the speed of the Plaintiff’s vehicle at the time of the accident by comparing the damage to the Plaintiff’s vehicle as it appeared in photos with the damage to similar vehicles involved in similar accidents contained in a vast database.

The analysis concluded that the Plaintiff’s vehicle could very well have been travelling at only 80 km/h. [ 71 ] However, the analysis is affected by several errors: the experts compared the damage to the Plaintiff’s vehicle, a 2000 Honda Coupe, with damage, shown in the database, for a 2000 Honda Sedan, a heavier vehicle. A lighter vehicle would have to go faster to sustain the same damage. [ 72 ] The selected comparisons involved impacts with narrower objects.

The experts acknowledged that the damage caused by a narrower impact requires less force to cause similar damage. [ 73 ] The CEP analysis assumed that the Plaintiff’s vehicle had stopped when it struck a tree. The evidence shows that this was not the case: the vehicle bounced approximately six metres from the tree, which was evidence of a great deal of residual force. [ 74 ] In a statement dated January 28, 2014, the Plaintiff indicated that she applied the brakes as soon as she saw the Defendant’s vehicle.

The expert analysis does not take this deceleration into account. [ 75 ] Finally, the CEP analysis does not consider the deceleration caused by the impact with the Defendant’s vehicle, its crossing the snowbank, its movement on the lawn, and so on. [ 76 ] The other expert analyses suffer from a number of shortcomings due to the fact that the data on which these analyses are based is not accurate having regard to the totality of the evidence. [ 77 ] Having considered the totality of the evidence of the witnesses and expert witnesses, I make the following findings: a.

The Plaintiff realized that an unknown car was overtaking her on the left as she was going up the hill; b. The Plaintiff was travelling above the speed limit. She was probably travelling at more than 100 km/h and quite possibly a bit faster. c. The Defendant stopped at the intersection, then moved forward slowly. He looked first to the right, towards the hill, then to the left. d. When the Defendant looked to the right, neither the unknown vehicle nor the Plaintiff’s vehicle was visible to him. Had he looked to the right lastly before proceeding speedily, he would have seen at least the unknown vehicle. e.

The Defendant thus took off fast. He was overtaken on his left by the unknown vehicle, which raised a cloud of snow. The Plaintiff then noticed the unknown vehicle’s brake lights. f. The Plaintiff noticed the Defendant’s vehicle just before the impact. It is not clear whether she applied her brakes, but the short distance between the two vehicles meant that this had only a minimal impact. [ 78 ] The law is clear that liability for an accident, or at least a large part of the liability, will usually be fixed on the driver who cuts across another driver having the right of way.

He or she can only escape liability by showing that the dominant driver, acting reasonably, could have avoided the accident. See Walker v. Brownlee and Harmon [1] and McAdam v. McIlveen , Langille and Bowland . [2]

[ 79 ] In assessing liability in vehicular accident cases, parties are not held to perfection. Rather, the benchmark is the standard of care that would be expected of an ordinary, reasonable, and prudent driver in the same circumstances. A driver confronted with an unforeseen event cannot have his or her reaction analyzed by calmly considering, after the fact, what could have been done. [3] [ 80 ] The evidence shows that the Plaintiff, although having the right of way, was driving her vehicle above the speed limit and beyond a reasonable speed. A vehicle overtook her at high speed on a solid line.

When she saw the brake lights of the unknown vehicle near the intersection, she should have reduced her speed. This excessive speed prevented the Plaintiff from taking reasonable steps to avoid the accident or at least reduce its severity. [ 81 ] For his part, the Defendant should have looked last in the direction of the greatest risk, of which he was aware, i.e., the blind hill. Had he done so, he would probably have seen the unknown vehicle, perhaps even the Plaintiff’s vehicle.

He sped off along Route 370, knowing that there was a dangerous hill nearby and thus cutting off traffic having the right of way. [ 82 ] See also Macdonald v. Becker [4] and Gagnon v. Desjardins and Martin , [5] Alain, Alain and Allain v. Roy and Napkie. [6] [ 83 ] Determining everyone’s share of liability is not an exact science and depends very much on the circumstances of each case. [ 84 ] I find that each of the parties must bear 50% of the liability for this accident. IV. DAMAGES A. General Non-Pecuniary Damages [ 85 ] In Chiasson v.

Chiasson , [7] our Court of Appeal set out the following principles: The objective of an award of general non-pecuniary damages is to compensate the victim for pain and suffering, loss of amenities, and reduced life expectancy. Although damages must be assessed in each individual case according to the injuries sustained and their impact, the quantum must be justifiable on the basis of assessments made in similar cases[.] i. The Plaintiff’s Situation [ 86 ] The Plaintiff was born in March 1991.

She was therefore approaching her 23 rd birthday on the date of the accident. [ 87 ] She is the mother of two children: Andy, born in 2010, and Amy, born by emergency caesarean

section following the accident. [ 88 ] The Plaintiff has been employed since age 14 or 15, mainly in the restaurant sector. [ 89 ] After graduating from high school, she successfully completed a caregiver course at the New Brunswick Community College. After an internship in a hospital setting, she obtained a job in a private nursing home, Manoir du Lac. ii. The Plaintiff’s State of Health Prior to the Accident [ 90 ] The Plaintiff testified that she had no stress-related problems prior to the accident. She had testified to this at the examination for discovery.

[ 91 ] Since then, the financial difficulties resulting from the accident are causing her stress. She adds that there was the COVID pandemic, that the world is dangerous, children are being kidnapped, but, above all, that it is stressful to be disabled, because she wants to be there for her children. [ 92 ] According to her, the only health problem from which she suffered prior to the accident was a workplace injury to her lower back, which necessitated a few months off work and treatment at the WHSCC centre in Saint John.

She claims that this injury was healed. [ 93 ] She testified that prior to the accident she was cheerful and laughed often. She had recently met David Comeau and things were going well. [ 94 ] Her medical records show that in 2012, she went to the emergency department, having injured her back while exercising. She was prescribed Celebrex and Tylenol Arthritis Pain. At trial, she had no recollection of this. [ 95 ] Her WHSCC file mentions a fall with a [TRANSLATION] “significant” injury to her buttocks and lower back in February 2013.

However, the Plaintiff did not feel the need to seek care. [ 96 ] Her Mental Health Services record, opened in 2015 when Public Health noted signs of depression, states: • Difficult childhood, experience of physical and sexual abuse; • Has had two dysfunctional romantic relationships; • In 2005, she was referred to Mental Health Services for self-mutilation behaviour; • In 2011, she was referred to Mental Health Services for a panic attack.

The doctor diagnosed her with panic disorder without agoraphobia, an adjustment disorder with a mixed anxiety and mood disorder; • Family history: father said to be depressive, anxious and into drugs; • Has experienced abuse, said she has experienced sexual abuse. [ 97 ] The Plaintiff’s Mental Health Services record shows that in October 2016, she had reported having suffered from depression several years previously.

She had been prescribed antidepressants but did not like the side effects. [ 98 ] Her WHSCC file states: • Upon admission, her symptoms of depression were considered severe. [ 99 ] When confronted with this information, she said that she had no recollection of the injury sustained while exercising or of the fall in 2013. She first denied any sexual assault and then said that, possibly, an uncle had brushed against her buttocks when she was a teenager. [ 100 ] The plaintiff admitted that Amy’s father abused her financially, took drugs, had served time in prison, and lost his rights of access to the child.

The spouse she had at the time of the accident, David Comeau, was violent towards her, leaving her with bruises. [ 101 ] With respect to the self-mutilation, she and some of her friends allegedly simply wanted to imitate what they had seen in a movie.

[ 102 ] With respect to the panic attacks, one of which required a visit to the emergency department, she says that her employer at the time, in the restaurant sector, was strict, stressing her out and causing the attacks. iii. The Accident and its Consequences [ 103 ] The Plaintiff, who was eight months pregnant at the time of the accident, was taken to hospital by ambulance. The emergency physician diagnosed an abnormal foetal tracing and the Plaintiff had to undergo an emergency caesarean section.

Her daughter fared well, and the evidence does not show any effects on her. [ 104 ] Jenny Vienneau was also diagnosed with a tibiotalar fracture-dislocation, a fracture of the subtalar joint and an open extrusion of the right talus, for which she had to undergo emergency surgery as soon as the caesarean

section was completed. [ 105 ] She remained in hospital in Bathurst for two weeks and was then transferred to the hospital in Saint John for another surgery consisting of a temporary fusion of the talus and the calcaneus, an osteotomy of the fibula and the right foot. A cast and fixations were placed. She was discharged from hospital the following day. [ 106 ] The Plaintiff testified that hospitalization in both Bathurst and Saint John was difficult.

She was worried about her newborn baby and her son. [ 107 ] Subsequent X-rays also showed a fracture of the talus, a non-displaced fracture of the right patella and a non-displaced fracture of the proximal fibula. [ 108 ] In 2015, a magnetic resonance test also revealed a slight labral tear in her right hip. [ 109 ] The surgeon who performed the surgery at the hospital in Saint John noted that his patient will have to abstain from putting any weight on her right foot for eight to twelve weeks.

He anticipated the need for extensive physiotherapy treatment, and that the patient may wind up with stiffness in her ankle and subtalar joint. [ 110 ] The Plaintiff received a wheelchair, a transfer bench, a raised toilet seat and a manual shower head. On January 29, 2014, an occupational therapist visited the Plaintiff at her home and noted that she was already using crutches but needed help with her household duties and personal care. [ 111 ] A physiotherapist’s progress report dated February 19, 2014, states that Mrs. Vienneau had constant and stable pain in her ankle, foot, and calf.

She could move with a cane by placing her weight on the other foot. She was receiving two to three treatments a week in an eight-week programme. She was progressing very slowly and was not doing all the exercises at home. Other reports dated March 12, April 27, 2014, and September 3, 2014, are similar. [ 112 ] The cast and fixations were removed on March 7, 2014, and the Plaintiff was then referred to physiotherapy. It was expected that she would be able to put some weight on her foot as of March 21, 2014.

The Plaintiff received three physiotherapy treatments per week. [ 113 ] On April 7, 2014, the surgeon who performed the surgery in Bathurst saw the Plaintiff again for a follow-up. She reported that she was doing well, but that there was a residual loss of sensation in her foot. The incisions had healed well. There was still little possible movement in the subtalar joint. [ 114 ] On May 2, 2014, the occupational therapist visited Mrs. Vienneau. She noted that she could now move around with a cane and no longer needed a wheelchair or crutches. She limped a great deal so as not to put any weight on her foot.

She had no sensation under

her foot, except for a tingling sensation . She could now get dressed by herself, but still could not do her household duties and make meals. [ 115 ] On July 4, 2014, the Plaintiff was prescribed two pairs of customized orthoses. [ 116 ] On September 5, 2014, the Plaintiff was seen by Dr. Neil Branch, an orthopaedic surgeon, for an independent medical assessment, at the insurers’ request. [ 117 ] The Plaintiff told him about her workplace accident prior to the accident but raised nothing else. Dr.

Branch indicated that the doctors who followed up in June and July 2014 were satisfied with the progress and found no signs of necrosis in the foot. [ 118 ] The Plaintiff reported pain when walking or putting weight on her foot. She also reported numbness that gradually diminished. She reported pain radiating from her foot to her knee and sometimes higher. Lower back pain is still a problem. She describes spasms and cramps.

The doctor described the lower back pain as chronic. [ 119 ] After assessing her, the specialist concluded that the serious injuries sustained in the accident caused a loss of mobility in the foot and ankle, particularly in the subtalar joint. He found that the Plaintiff had suffered some post-tibial nerve damage that would resolve over time. She suffered a lumbar strain causing residual pain. Limping and using a cane caused hip pain and she developed bursitis. Finally, he noted that the Plaintiff probably suffered a mild whiplash causing residual discomfort.

She suffered chest injuries from the seatbelt, but this had now healed. All her injuries resulted from the accident. [ 120 ] He considered that the current treatments, in terms of rehabilitation, were adequate and suggested that they continue. He recommended exercises to do at home and being as physically active as possible. He expected four to six months of rehabilitation. [ 121 ] Finally, although he did not see the need for surgery in the short term, he believed that the Plaintiff would eventually require a fusion of the subtalar joint. [ 122 ] His prognosis was guarded.

The right foot would continue to give rise to chronic problems, as arthritis could already be observed. He believed that the muscular problems would resolve with rehabilitation. For the time being, he did not consider the Plaintiff fit for work and feared that she would never be able to return to her job as a caregiver. [ 123 ] On November 18, 2014, the physiotherapist asked Dr. Losier, the Plaintiff’s family physician, to refer the Plaintiff to a pain clinic given the lack of improvement.

In January 2015, the physiotherapist noted that the Plaintiff had reached a plateau and was showing signs of subtalar arthritis. [ 124 ] As early as December 2014, Dr. Gérard Losier noted chronic pain. Various drugs were tried out to relieve the Plaintiff. [ 125 ] On January 26, 2015, the physiotherapist noted that the pain was persisting and asked Dr. Losier to send Mrs. Vienneau for a cortisone injection. [ 126 ] On February 27, 2015, the Plaintiff was seen by Dr. Richard Dumais at the pain clinic.

At the time, the Plaintiff was walking with a cane. [ 127 ] The Plaintiff reported deep stabbing pain in her right foot. The pain was greatest at the back of the ankle and was exacerbated by weight-bearing and rotational movements. He also noted neurological problems, exacerbated by walking. Sleep was affected. In addition to physiotherapy, the Plaintiff had one massage therapy session per week. Medication was prescribed to improve sleep and reduce pain. He also ordered an MRI of the ankle and hip.

[ 128 ] As mentioned above, the MRI would reveal a slight tear in the hip and scoliosis in the subtalar joint. [ 129 ] On May 13, 2015, Dr. Dumais proceeded to inject a viscous material to try and reduce the pain for a period of three to twelve months. [ 130 ] He saw the Plaintiff again on June 5, 2015, and did not detect any redness, signs of inflammation or heat emanating from the foot. Movement of the foot caused pain. The pain seemed to be gradually diminishing and recurred especially when weight was applied.

He therefore suggested the use of crutches for two weeks. [ 131 ] On June 26, 2015, he proceeded to give [the Plaintiff] an injection to the hip as the magnetic resonance tests suggested a labral tear. He immediately noted a reduction in pain. He recommended that the Plaintiff see Dr. Hervé David for her hip and that she be assessed by an orthopaedic surgeon for possible foot surgery. [ 132 ] On July 16, 2015, the physiotherapy file was closed as there was no further progress. [ 133 ] On October 13, 2015, Dr. Dumais prescribed a tibial splint. He was awaiting the result of the referral to Dr.

Mayich. [ 134 ] On January 6, 2016, he noted that the pain persisted. He prescribed medication to help with sleep. [ 135 ] On April 1, 2016, the Plaintiff was seen by Dr. Joshua Mayich, an orthopaedic surgeon specializing in foot and ankle procedures, following a referral by Dr. Dumais. [ 136 ] He noted that although the surgery performed in Saint John had produced good results, the Plaintiff had developed a significant pain syndrome, both neuropathic and musculoskeletal. She was quickly taken under the care of Dr.

Dumais’ pain clinic, where a multidisciplinary approach led to significant improvements. [ 137 ] Mrs. Vienneau reported two main problems: pain in the area of the subtalar joint and neuropathic pain. She said the pain in the joint was by far the worst and prevented her from walking even short distances. She could not do without her walking stick. The neuropathic pain was described as a sensation of electric shock. [ 138 ] The doctor proceeded to examine her. He noted that the Plaintiff was overweight. He indicated that the incisions had healed well. He did not note any problems with the alignment of the feet.

The ankle moved well, without causing pain. The subtalar joint, however, was problematic and was responsible for most of the symptoms. Neurological tests revealed nothing significant. [ 139 ] Imaging showed arthritis in the subtalar joint. [ 140 ] The doctor discussed with his patient the risks and benefits associated with an operation to fuse the subtalar joint. He explained to her that her smoking increased the risks and encouraged her to stop. In addition to the usual risks of infection, he mentioned that very rarely, there were other risks, up to and including the need to amputate.

Informed, the Plaintiff consented to the procedure. She was informed that she would be convalescing for about six weeks after the procedure and would therefore need to arrange for help at home. He reminded her that she must stop smoking. [ 141 ] On June 8, 2016, the Plaintiff was seen by Dr. Hervé David, an orthopaedic surgeon, to discuss a possible hip operation. He explained the risks and that she would be convalescing for four to six months. She agreed to the operation. The waiting list was about a year long. [ 142 ] On September 23, 2016, he noted that the pain persisted to a significant degree.

There was a lengthy discussion about the stress

associated with the pain, the resulting family and marital problems, and the timescales for treatment. He hoped that the foot operation could be performed within a month or two and the hip operation a year to a year and a half later. [ 143 ] On October 25, 2016, Dr. Dumais referred the Plaintiff to Dr. Louis LeBlond, an orthopaedic surgeon who possibly had more availability than Dr. Mayich. [ 144 ] She was seen by Dr. LeBlond on November 1, 2016. At that time, the Plaintiff reported pain in the hindfoot, which was exacerbated when she walked. The pain was radiating.

On examination, the doctor noted reduced sensation in the skin, but no neurological wound. Movement at the subtalar joint was very painful. He noted that the imaging results showed advanced osteoarthritis. He noted symptoms of depression, which, along with smoking, made the case more complex. He suggested injections for therapeutic purposes and to see how much of the pain stemmed from the subtalar joint.

He recommended that she continue to wear her orthotic device. [ 145 ] On November 16, 2016, the Plaintiff was seen by physiotherapist Mario Chiasson for an assessment of her functional status. [ 146 ] The physiotherapist began his report by stating that the test results and clinical observations suggested minor inconsistencies in the reliability and accuracy of the pain and disability reported by the Plaintiff. In his opinion, she could do more than she was alleging. [ 147 ] He was of the opinion that the Plaintiff was limited to sedentary work requiring her to work in a seated position.

He noted, however, that she was not able to tolerate more than one hour in a seated position and that she could then only remain seated for periods of no more than 15 minutes. [ 148 ] On March 16, 2017, Dr. Dumais administered a subtalar injection and referred her to Dr. Mark MacDonald for possible surgery. [ 149 ] In the spring of 2017, the Plaintiff’s lawyer asked Dr. Yves Turgeon, a psychologist and neuropsychologist, to conduct a neuropsychological examination of the Plaintiff. The doctor saw her that same spring, but the symptoms of pain and disability reported by Mrs.

Vienneau did not allow him to certify the results of such an examination. As surgery was being contemplated at the time, Dr. Turgeon postponed the assessment. He tried again in autumn 2017, but to no avail, for the same reasons. [ 150 ] On November 21, 2017, Dr. Dumais met with his patient, who reported new symptoms in her upper limbs. He ordered an MRI scan. [ 151 ] On December 5, 2017, the Plaintiff was seen by Dr. Mark MacDonald, an orthopaedic surgeon. [ 152 ] He said that he was seeing the Plaintiff following her refusal to undergo the surgery with Dr. Mayich, to which she had initially consented.

His patient told him that she could no longer walk with her cane. She became impatient and angry when the doctor tried to obtain her treatment history. She denied having any numbness on the top of her foot but reported that her toes were cold. [ 153 ] As the Plaintiff reported generalized pain, including in her upper limbs, Dr. MacDonald was reluctant to recommend fusion of the joint when the patient was reporting possible neurological problems. He wanted to obtain an imaging of the foot to determine the extent of the arthritis.

Given her previous injury, the doctor considered her to be at risk of postoperative infection. He informed her that the operation may not completely eliminate the pain in the subtalar joint. At the end of the meeting, the plaintiff said [in English] “If you help me, I'll help you,” a statement she repeated, leaving the doctor perplexed. [ 154 ] Dr. Dumais saw her again on December 21, 2017. The imaging results confirmed osteoarthritis in the foot. [ 155 ] In December 2017, the Plaintiff arrived home from the store with her spouse David Comeau.

She climbed the porch stairs and suddenly could no longer feel her left hand. She could no longer move either leg. She shouted to David, who had already gone inside, who had to pick her up and take her into the house. She did not collapse but remained standing.

[ 156 ] She did not go to the hospital. This paralysis lasted about a year. [ 157 ] On January 22, 2018, Dr. MacDonald saw the Plaintiff again, in the presence of his administrative assistant. The Plaintiff reported that the pain in her foot was unchanged, but that she now felt weakness in her extremities. She could not walk, not only because of the pain, but also because of this weakness. [ 158 ] On examination, Dr. MacDonald noted that there was no swelling, but that the skin on the right foot was slightly paler than that on the left foot and cold to the touch. He found no neurological problems.

He explained to his patient that the fusion of the subtalar joint would only help with the foot pain and not with her weakness or leg pain. He explained that she was more susceptible to complications given the previous trauma and the fact that she still smoked. He explained the other risks and the fact that she would be convalescing for at least three months. He provided her with a

summary of all this so that she could review it before deciding. Several times during the meeting, the Plaintiff raised her voice at the doctor, who calmly told her that there was no point in shouting. She questioned his motives for hesitating to proceed with the procedure. He recommended she be given a lidocaine injection and told her he would see her again for a follow-up. [ 159 ] In January 2018, Dr. Losier noted that the situation was worsening. He referred his patient to physiotherapy with the Extra- Mural since she no longer had insurance coverage.

He considered that the Plaintiff was taking a lot of medication. [ 160 ] On March 16, 2018, Dr. MacDonald saw the Plaintiff again. She had had the injection, which did not seem to have helped her. She indicated that her main problem was this weakness at three extremities. She said she was unable to lift her legs or her left arm. She was referred to neurology. She described chronic pain all over her body. Dr. MacDonald told her that the injection produced the same kind of relief as the subtalar joint operation. He therefore did not recommend proceeding, given the other problems. [ 161 ] On March 27, 2018, Mrs.

Vienneau was seen by Dr. Ernest Clevinger, a neurologist. The Plaintiff described to him the event of paralysis in December. An MRI in December revealed nothing. The Plaintiff was in a wheelchair and said she could not get out of it by herself. Her husband lifted her up and placed her on the examination table. All the neurological tests were normal. He considered that the weakness was due either to a lesion in the central nervous system or to reduced effort on the part of the patient. He ordered an MRI of the head. This test showed nothing to worry about. [ 162 ] On July 24, 2018, Dr.

Dumais told the Plaintiff’s lawyer that he had conducted tests to determine whether his patient was suffering from a somatoform disorder. [ 163 ] As these tests were inconclusive, he referred the matter to Dr. Yves Turgeon for an expert opinion. At trial, having had access to Dr. Turgeon’s opinion, Dr. Dumais indicated that the Plaintiff’s clinical picture was consistent with a somatoform disorder. [ 164 ] In October 2018, the family doctor noted that the Plaintiff was suffering from constant headaches and reviewed her medication. [ 165 ] On February 4, 2019, Dr.

Dumais noted that, in general, there was no change in the pain, but that his patient no longer had an appetite and had lost weight. He indicated the possible presence of a somatoform disorder. Finally, he noted that the Plaintiff said that she had recently been able to move around more easily. [ 166 ] On March 18, 2019, Dr. Jérémie Larouche, an orthopaedic surgeon, conducted an independent medical examination at the insurers’ request. [ 167 ] He received all the medical documents as well as photos from Facebook and videos on TikTok.

He conducted his assessment on March 18, 2019. [ 168 ] The Plaintiff arrived in a wheelchair. Dr. Larouche reviewed the medical history with the Plaintiff, who first said that, prior to the accident, she had never suffered from symptoms related to her back, right ankle, right knee, and right hip. She then admitted to the

workplace injury. [ 169 ] The Plaintiff did not report any headaches, neck pain or shoulder pain. During the examination, he noted behaviours that he associated with attempts to exaggerate or simulate symptoms. When a weak but constant muscle strength would normally be expected, there was a sudden relaxation. He observed the Plaintiff reposition herself in her chair, showing greater strength than during the tests. [ 170 ] At certain points during the assessment, the Plaintiff experienced unexplained tremors, close to a convulsion. A few minutes later, she stood up and walked to her wheelchair.

She continued to say she was paralyzed in both legs and in her left hand. [ 171 ] He noticed arthritis in the subtalar joint in her right foot. A fusion of the talus could eliminate the pain. After such a surgery, patients are generally able to walk unaided, without their problem even being noticeable, but must avoid running or activities involving high impact on the foot. It might be necessary to wear a splint when walking on uneven ground. Walking for more than an hour or standing for more than an hour in the same position could cause pain. There should be no difficulty climbing stairs, but not ladders.

There are no restrictions on driving, swimming, or camping. [ 172 ] Even without the surgery, Dr. Larouche saw no need to use a wheelchair. In fact, it might make things worse. [ 173 ] With respect to the risks associated with the bone fusion procedure, he considered them to be minimal. [ 174 ] His assessment led him to conclude that there was no orthopaedic or physical reason for the pain reported by the Plaintiff. The symptoms of paralysis reported were not consistent with symptoms of actual paralysis. [ 175 ] On March 8, 2019, Dr. Turgeon saw the Plaintiff again.

He was still unable to conduct a detailed neuropsychological assessment but proceeded to evaluate her psychological state. He therefore met with her on March 8 and 23, 2019. He obtained information from the Plaintiff and reviewed excerpts from her forensic file, including expert reports, such as Dr. Larouche’s assessment report. Dr. Larouche’s report mentioned problems with depression and difficulties with her spouse. Dr. Turgeon submitted his report on June 11, 2019. [ 176 ] The Plaintiff still described generalized pain, but she emphasized mostly the loss of function or diminished function.

She demonstrated a desperate need to be considered and supported. [ 177 ] Dr. Turgeon used the PAI (Personality Assessment Inventory), which he described as the benchmark test in the field. Among other things, this test provides various validity indicators to detect attempts to fake the results, whether by malingering, falsification, or exaggeration. Computer analysis of the results can be used to detect or rule out such behaviour. [ 178 ] In his opinion, the test had ruled out any attempt to fake the results.

He testified that he frequently sees malingering, since he assesses individuals referred by the courts for their fitness to stand trial. He clearly indicated that the Plaintiff was not this type of person. [ 179 ] The test results pointed to a somatoform disorder. This is a psychological disorder characterized by persistent physical symptoms, accompanied by excessive and maladaptive thoughts and fears. Although the symptoms reported by sufferers may not exist or may be less intense, for them they are very real. This disorder is similar to schizophrenia.

Sufferers focus their energy on their pain in an extreme and excessive way. [ 180 ] In his report, he stated, with regard to the Plaintiff: [TRANSLATION] Mrs. Vienneau considers that her life has been severely disrupted by various physical problems, which she relates to the car accident in which she was involved on January 9, 2014. These problems have left her unhappy, with little energy or enthusiasm to concentrate on important life tasks and little hope of future improvement... For Mrs. Vienneau, somatic complaints are likely to be chronic and

accompanied by fatigue and weakness that leave her unable to fulfil even minimal expectations... She feels that her health is not as good as that of other women her age, and she believes that her health problems are complex and difficult to treat successfully. The complaints she describes include symptoms of distress in several systems, including the neurological, gastrointestinal, and musculoskeletal systems. She is liable to be preoccupied with her health and physical problems.

Her social interactions and conversations tend to focus on her health problems and her self-image appears to be greatly influenced by her belief that she is disabled by her health condition. [ 181 ] His diagnosis was therefore of an unspecified somatic disorder. At trial, he clarified that the term [TRANSLATION] “unspecified” did not mean that the diagnosis was uncertain, but rather that the Plaintiff showed characteristics related to more than one form of somatic disorder.

In fact, it means that the severity and complexity of the Plaintiff's illness are even greater. [ 182 ] The two somatic disorders the characteristics of which were present are conversion disorder with abnormal movements and somatic symptomatology disorder with predominant pain. For the latter, the person has disproportionate and persistent thoughts and behaviours about the seriousness of their physical symptoms, in addition to devoting excessive time and energy to them.

His report added: [TRANSLATION] It is possible that the symptoms reported stem from a normal bodily sensation or discomfort that is not usually associated with a serious medical problem (e.g., back pain due to arthritis). Nevertheless, the patient’s suffering is real, whether or not there is a medical explanation for her symptoms. Individuals with this disorder are often uncooperative with medical interventions and new interventions may only amplify the presentation of symptoms. [ 183 ] Specifically, about Mrs. Vienneau, he added: [TRANSLATION] Although several observations suggest symptom exaggeration by Mrs.

Vienneau, the suffering associated with her symptoms, the consistency of her symptoms, and the way in which she integrates them as her personality is not typical of what is generally observed in [a] patient with a factitious disorder... The etiology of Mrs. Vienneau's clinical symptoms presentation goes, in my opinion, well beyond malingering; however, her desperate need to be taken seriously may lead to exaggeration at times or lack of movement, resulting in the feeling that she is malingering for an unqualified person. [ 184 ] Finally, Dr.

Turgeon also noted an adjustment disorder with depressed mood that was chronic and related to the accident of January 9, 2014. He saw nothing in the post-accident events to suggest that the somatoform disorders from which the Plaintiff suffered could be related to anything other than the accident. [ 185 ] Dr. Turgeon testified that in 20 years of practice, he had seen between 6 and 12 patients with somatic disorders. He considers that it is very difficult to cope with somatic disorders and that medication does not really help.

Telling [the Plaintiff] that she is not paralyzed only makes things worse by delegitimizing her suffering and making her react with suspicion. These people have difficulty establishing a relationship of trust with their medical care providers. [ 186 ] The person affected no longer has a normal life. He or she continually focuses on the symptoms they perceive. These symptoms may vary, but the focus on them does not. The person cannot concentrate on a discussion. He or she usually goes from one subject to another, getting lost along the way. He or she may also suffer from memory problems.

He believed that during the assessments, Mrs. Vienneau cooperated well and did not try to avoid the questions. This reinforced his conclusion that she does not realize how ill she is. [ 187 ] He explained that somatic disorders appear when a [TRANSLATION] “perfect storm” occurs: risk factors are present (anxiety, abuse, poverty) and then a trauma triggers the whole thing. [ 188 ] Fatigue, stress, and anxiety can make the situation worse. [ 189 ] Dr. Turgeon doubts that Mrs. Vienneau will ever be able to work again.

[ 190 ] On cross-examination, he readily admitted that he was unaware of the mental health report, the history of sexual abuse and difficult spousal relationship, the self-mutilation and panic attacks, but, as his report indicated, he was aware of a difficult history and explained that these are precisely the kinds of factors that can trigger somatoform disorder in trauma. [ 191 ] As for the fact that the Plaintiff was able to indicate an improvement in her ambulatory abilities after he had examined her, he stated that this did not surprise him at all.

In fact, this would be a classic example of the variation in symptoms that he described in his report. [ 192 ] In March 2019, the Plaintiff was seen by Lawson LeBouthillier, a physiotherapist, for a new assessment. He indicated that at the time of the assessment, the Plaintiff could not walk. She lacked coordination in her legs and left arm. He had seen her once a week since March and reported that, as of August 29, 2019, she had made a lot of progress so that she could then walk 25 metres with a walker. [ 193 ] He felt that since strength seemed to have returned, what needed to be treated was her heel.

He strongly recommended that she use a walker instead of a wheelchair. [ 194 ] In September 2019, Dr. Losier noted some improvement in her ability to walk. [ 195 ] Two months later, he noted that the Plaintiff could then move her hand and bend her elbow. As it was difficult to explain the physical difficulties from the medical evidence, he mentioned the possibility of a conversion disorder, which had been raised in the report that Dr. Dumais had sent him. [ 196 ] On December 2, 2019, Dr. Dumais reviewed the physiotherapist's report, which noted considerable progress.

He requested a new magnetic resonance test, considered further injections and a reassessment by Dr. MacDonald. [ 197 ] An MRI was performed on January 23, 2020. It showed moderate osteoarthritis in the ankle, but severe osteoarthritis with pinching and very little residual cartilage in the posterior subtalar joint and moderate osteoarthritis in the anterior subtalar joint. [ 198 ] On April 6, 2021, the Plaintiff reported her persistent foot pain to him and that she was waiting to see Dr. MacDonald. She reported new symptoms: tics, diffuse pain, and occasional cramps.

She reported an increase in neurological symptoms in her foot. He repeated the request for another brain MRI. [ 199 ] Dr. MacDonald saw the Plaintiff again on April 15, 2021. She described her pain very differently from the other appointments. She now reported plantar pain. She only got around in a wheelchair, except for short distances with the help of a cane. Her paralysis had subsided, and she felt she could function much better than she did two years earlier. Dr. MacDonald saw no need for a subtalar joint fusion until the neurological problem in the plantar region had been resolved. [ 200 ] At trial, Dr.

Losier testified that he has seen patients with somatoform disorders in the past. In his opinion, the more time passes, the more difficult it is to recover. As for the Plaintiff, he believed that a return to full-time work was unrealistic. He summarized that the Plaintiff has suffered life-changing injuries that have affected her both physically and psychologically. He believed that she is permanently disabled. He cannot imagine any employer hiring her. [ 201 ] He felt that the Plaintiff has done everything she can to help in her recovery.

He deplored the fact that, for financial reasons, she has not had more physiotherapy treatments. He stated that he has never seen any signs of malingering. [ 202 ] On cross-examination, he indicated that he was unaware that the Plaintiff had injured her back while exercising or that she had injured her back in 2013, which had required her to take time off work and treatment by the WHSCC. He maintained that there was nothing to suggest that these were chronic problems.

[ 203 ] At trial, Dr. Dumais explained somatoform disorders in detail. He stated that he has no doubt about the Plaintiff's credibility and that her symptoms are consistent with such a disorder. [ 204 ] He was not optimistic about the prospects for recovery. These disorders are very difficult to treat. The patient must first be persuaded to accept the existence of the disorder. He or she needs to be monitored by a psychotherapist. He did not consider the Plaintiff fit to work. iv. The Plaintiff’s Testimony [ 205 ] Jenny Vienneau testified that she is still experiencing pain in her right ankle.

The pain is constant and worse in cold weather or when she sits for extended periods. She still cannot walk without help, crutches or otherwise, and cannot go very far. She is mainly in a wheelchair. [ 206 ] She described the pain as having frozen toes. It feels like a shooting pain. [ 207 ] This disability affects her quality of life. She has little patience and is often in a bad mood. In order not to inflict her moods on others, she withdraws. She tries to control herself in dealing with the children.

Her son is twelve years old and going through a challenging time. [ 208 ] In addition to her ankle, she reported pain in her buttocks. Her right hip also hurts, especially when sitting down or during infrequent sexual relations. [ 209 ] Her knee, given the injury to her patella, causes her some pinching like pain, but it is nothing compared to the pain in her ankle. The knee pain is worse when the knee is bent or when she is kneeling. [ 210 ] She said that she has a problem with one or more nerves, radiating from the foot to the buttock. She stated that she has to be in a wheelchair virtually all the time.

As a result, she is limited in terms of her activities or potential work. She needs help to go to the toilet or to get into a car. (She goes to the car in her wheelchair and then needs help to get in.) [ 211 ] She stated that the pain makes it difficult for her to concentrate. It also causes her insomnia. [ 212 ] After the accident, she separated from her spouse, David, leaving her alone and destitute. Her relationships were often difficult. Amy’s father was addicted to drugs, stole money from her, was physically abusive and has served time in prison, and he has lost access to the children.

Yet he is back in her life. According to the Plaintiff, they are not in a relationship. The relationship with Andy’s father was also dysfunctional. They separated in 2012. [ 213 ] The relationship with David Comeau was not easy either. They began dating around 2013. They separated and resumed their cohabitation several times. She believes he was cheating on her. A social worker suggested couple’s therapy, but David Comeau refused. He abused the Plaintiff financially, and physically on at least one occasion, leaving bruises on her arm.

Although the social workers’ file indicates that the Plaintiff reported seeing Mr. Comeau take cocaine, the Plaintiff denies this and accuses the social workers of lying. [ 214 ] She stated that she feels sad but tries to hide her sadness from the children. [ 215 ] She tried to downplay the entries in the WHSCC file stating that she had a history of anxiety and had been referred to Mental Health Services for self-mutilation. She denied the symptoms of severe depression noted by the WHSCC in 2013.

[ 216 ] She has no recollection of being diagnosed with an adjustment disorder and an anxiety and mood disorder in 2011. With respect to the workplace episodes of panic in the restaurant sector, for which she went to hospital, she says the employer was strict. [ 217 ] According to her, prior to the accident, she was in good health, with no limitations. When, on cross-examination, she was shown her family doctor’s file showing back pain in 2011, she had no recollection of it, nor did she remember having gone to hospital in 2012 for back pain she had suffered while exercising.

She had been given anti-inflammatories and painkillers at the time. [ 218 ] She denied having hurt her back in a fall in 2013, despite the entry to that effect in her WHSCC file. [ 219 ] She needed continual help during this period and had difficulties with some of the caregivers.

Before the paralysis, she had less help. [ 220 ] During the year of paralysis, when she did not have a caregiver, David or her mother helped her. [ 221 ] She depended on help for everything: her hygiene, looking after the children, taking them to school, preparing their meals for school, helping them with their homework. [ 222 ] This paralysis resolved as follows: one evening, she was seized by tremors. She could only see darkness, like a tunnel; she tried to open her hand and succeeded.

The rest of her arm and leg movements gradually returned. [ 223 ] Although the paralysis has now subsided, she still has no strength in her hands and sometimes feels pain, cramps or electric-like shocks passing from one end of her body to the other. Her legs are still weak, and she sometimes loses her balance. [ 224 ] She stated that when she was discharged from hospital, she had to use a wheelchair. Later, she was able to use crutches and then a cane. Injections caused her to return to a wheelchair.

Then came the paralysis, and she has been in a wheelchair ever since. [ 225 ] When confronted with the note from the Extra-Mural, dated January 24, 2019, indicating that the Plaintiff walked with a cane a little every day, she stated that that was not true. The Extra-Mural notes indicated, in December 2018: [TRANSLATION] “ successfully walked with crutch 2x house length on Saturday and a few steps today. ” [ 226 ] She testified that, except for the two surgeries she underwent after the accident, there was no further mention of surgery. [ 227 ] The Plaintiff takes numerous medications.

She testified that she could not sleep without them. [ 228 ] She feels she cannot work, even in a sedentary job. Sitting for extended periods causes her pain. She cannot go back to school because of concentration problems caused by the pain. She cannot go to the toilet by herself or get into a car. She says she can drive: she goes to the car in her wheelchair, then transfers herself with the help of a cane, pushing the wheelchair which then remains on the premises. She cannot get out by herself anywhere other than beside her wheelchair. [ 229 ] When it comes to household duties, she says she is very limited.

She admitted that since 2015, she has been able to do the dishes, clean up and prepare meals, sweep the floors, and clean the toilet, but with pain. [ 230 ] Dr. Dumais administered injections. According to the Plaintiff, these injections made her situation worse. The doctor prescribed an adapted boot.

[ 231 ] She testified that she consulted a psychologist for a relatively long period. She cannot explain exactly why she stopped these treatments, except to say that [with] the last psychologist she saw[, she] did nothing but cry on the sofa. When asked if she was ready to undergo psychological treatment, she answered [TRANSLATION] “yes” with a sigh. [ 232 ] The physiotherapist prescribed exercises to do at home, which she did as much as she could. [ 233 ] The occupational therapist recommended cold and hot compresses.

The Plaintiff stated that the cold compresses were useless. [ 234 ] With respect to the activities that she can no longer undertake since the accident, she mentioned going to the park or camping with the children, taking them to the amusement park, or swimming. As for the park, she stated that she can go, but only to observe. She can no longer participate with the children. [ 235 ] With respect to camping, she said she could not go. On cross-examination, she admitted having gone camping in August 2017. [ 236 ] She can go to the amusement park, but not on rides with the children.

As for swimming, she can get into the water with help. She can no longer take

part in winter activities such as building snowmen or tobogganing. [ 237 ] At the examination for discovery, the Plaintiff stated that she had not been camping for a long time, since well before the accident. [ 238 ] Prior to the accident, she liked to keep fit by exercising at the gym or to go dancing. She can no longer do that, nor can she walk or jog. On examination for discovery, she had testified that she had stopped going to the gym after Andy was born and that she did not go for walks regularly. [ 239 ] She testified that her disabilities had destroyed her relationship with David.

She cannot imagine ever meeting another man. She does not have enough self-confidence to even think about it. She tried a few times, but it did not work. She testified that she has not been sexually active since her paralysis. When Dr. Larouche assessed her in March 2019, he noted that she reported being sexually active without difficulty. On cross-examination, she said she did not remember saying this. [ 240 ] She testified that her son Andy has anger management problems, and that Amy has developmental problems.

She believes this was possibly related to the fact that she cannot do activities with them, although no doctor has made a link between these problems and the Plaintiff’s disability. [ 241 ] When shown photos from her Facebook account showing her on horseback, she says that two people had to lift her onto the horse. She explained in the same way the photos showing her in a canoe or on the second floor of a cottage, accessible only by ladder. It was a “bachelorette” type activity with two friends. The friends did not testify. [ 242 ] A cane can be seen in one of the photos.

She replied that her wheelchair had probably been moved to take the photo and that she did not believe she had used the cane. Photos show that she took a short holiday alone with the children, driving her car to get there. She even went to Pabineau Falls, a difficult place to get to. She says her son helped her a little. She went to Miscou alone with the children. Photos show her exercising as well as doing yoga, and putting on a puppet show for the children, on her knees under a sheet.

None of the photos show the Plaintiff standing. [ 243 ] The Plaintiff was also cross-examined about the possibility of surgery to permanently fuse the talus and calcaneus. Although the medical evidence shows that she had consented to the procedure, the Plaintiff testified that this was not the case as no clear explanations were ever given to her. According to her, Dr. Mayich told her that after the procedure, she would walk like a penguin. [ 244 ] She admits that Dr. Mayich had asked her to stop smoking before the surgery, but that she never did.

She admits that the doctor had told her to be prepared to have help for six weeks following the surgery and that a hip surgery was possible, but only more than a

year after the foot surgery. [ 245 ] The Plaintiff’s mother had offered to look after the children during the surgery. The Plaintiff did not trust Dr. Mayich and, when the time came for the surgery, she said that she had no support to look after the children during her absence and the convalescence period. She was referred to Dr. MacDonald. [ 246 ] On cross-examination, she was asked about the suggested treatments, including psychological treatments. She indicated that she was willing to undertake the treatments.

However, in April 2018, she had told her social worker that she did not want to participate. [ 247 ] I accept the Defendant’s submission that physically, the evidence of the various orthopaedic surgeons and physiotherapists does not establish an injury of the seriousness suggested by the Plaintiff. The allegation of paralysis is not supported neurologically. [ 248 ] I also accept the Defendant’s submission that the level of pain reported by the Plaintiff cannot be explained physically and that the symptoms reported seem excessive. [ 249 ] However, I accept the opinion of Dr. Yves Turgeon, supported by Dr.

Dumais and Dr. Losier, that the Plaintiff suffers from a somatic disorder. The Plaintiff suffers from a psychological disorder that causes her to focus on her symptoms, which then take on a disproportionate magnitude. Although she is not as physically affected as she believes, for her, these symptoms are very real and the suffering and the impairment of her quality of life and abilities are also real. [ 250 ] The tests performed by Dr. Turgeon, as well as his experience and expertise, rule out any possibility that the Plaintiff deceived him by exaggerating or faking the test results. [ 251 ] Dr.

Turgeon's testimony was convincing, and he seemed to me to fully understand and respect the independent role of any expert witness. [ 252 ] This somatic disorder is directly related to the January 2014, accident, which at least significantly contributed to it. Although there existed, prior to the accident, factors that could contribute to the onset of a somatic disorder, there is no evidence of the existence or development of this disorder prior to the accident, which triggered it. [ 253 ] Although I accept Dr.

Turgeon’s testimony, when he concluded that the Plaintiff was severely affected, he had not seen the Facebook photos and TikTok videos which show that the Plaintiff’s level of psychological impairment is not as significant as Dr. Turgeon concluded. [ 254 ] The Plaintiff’s somatoform disorder is not so severe as to permanently confine her to her wheelchair and prevent her from performing activities.

As I indicated above, the Plaintiff can go to the beach by herself, ride a horse, go to places that are not easily accessible, such as Pabineau Falls, kneel for a puppet show, move her arms while baking cakes, and so on. [ 255 ] Dr. Turgeon, who was the only psychologist or neuropsychologist to testify, did not rule out a possible improvement in Mrs. Vienneau’s condition with appropriate treatment, including cognitive and behavioural therapy, and group therapy involving the Plaintiff’s loved ones.

He believes that the Plaintiff will probably never have a normal life but could reduce her focus on her symptoms. [ 256 ] I will examine the future care required and the possibility of a return to paid work following appropriate treatment later. [ 257 ] The cases referred to by the Defendant in which the Court found exaggerations, contradictions, and omissions, without any

psychological explanation, more particularly Smith v. Agnew and Wawanesa Mutual Insurance Company [8] and Shum v. Mitchell , [9] must be distinguished since in this case, there is a proven psychological reason for the absence of objective evidence regarding the physical limitations reported by the Plaintiff. [ 258 ] There is, of course, no reported case that is on all fours with this case. In McLaughlin v. Lévesque , [10] the plaintiff, aged 41, initially appeared to have suffered few injuries in the accident. Intense pain and cognitive impairment later developed.

The plaintiff had been assessed by a neurologist, a psychologist, a neuropsychologist, a neurosurgeon, a psychiatrist, and others. Diagnoses ranged from mild traumatic brain injury to post-traumatic stress disorder to chronic pain. The plaintiff suffered from depression, anxiety, and stress in somatic form. A doctor retained by the defence believed that the plaintiff was exaggerating or inventing her symptoms. Video surveillance showed her driving, holding bags and shopping. She was very active prior to the accident.

The court accepted the evidence that she would probably never be able to return to work and awarded non-pecuniary general damages of $130,0000 in 2009. [ 259 ] In Russell v. Turcott , [11] an Alberta case, the plaintiff was 21 years old. A car accident caused her to suffer moderate to severe whiplash as well as injury to her jaw. She was diagnosed with post-traumatic stress disorder, depression, and general anxiety disorder.

Prior to the accident, she had been sexually assaulted, suffered a tonic-clonic seizure (grand mal), had symptoms of depression, and had had a first car accident following which she suffered a concussion, neck and lower back pain, nervousness, depression, insomnia, headaches, fatigue, and dizziness, all of which resolved fairly quickly. She had also broken up with her boyfriend after a rather abusive relationship. [ 260 ] Following the second accident, she suffered depression, anxiety, and visual and auditory hallucinations.

Despite the pain, she was still able to perform some household duties such as cleaning, dusting, vacuuming, cooking, and grocery shopping. [ 261 ] A psychologist concluded that these personality traits and characteristics made her liable to develop a pain disorder (somatoform) accompanied by severe depression. She did not have such a disorder prior to the accident, and it resulted from the accident.

The plaintiff found herself in a vicious circle of pain associated with depression, social isolation, insomnia, physical deconditioning, catastrophic thinking about her pain, fears, and physical activity avoidance. [ 262 ] As in this case, the psychologist had indicated that the plaintiff’s pre-accident characteristics were factors that had predisposed her to her somatoform disorder. [ 263 ] The court concluded that the plaintiff was not malingering.

The evidence showed that there were periods when the symptoms described by the plaintiff were less incapacitating, but that these symptoms were variable. [ 264 ] A neurologist had found nothing abnormal. The results of imaging tests raised no cause for concern.

A dental expert could find no mechanical reason for the pain felt by the plaintiff. [ 265 ] The plaintiff had received injections with little positive results. [ 266 ] A psychiatrist concluded that she was suffering from an unspecified psychotic disorder, while a specialist at a pain clinic concluded that she was suffering from fibromyalgia and depression and that she should be seen by a psychiatrist for symptoms of paranoia. [ 267 ] A physiatrist diagnosed a chronic psychosomatic condition, which the court accepted. [ 268 ] In that case, the court awarded general damages for non-pecuniary loss of $115,000 in 2009. [ 269 ] I have also considered the other cases referred to by the parties.

Considering the case law (and when those cases were decided), the evidence and the findings I have drawn therefrom, I find that general damages for non-pecuniary loss of $150,000 are reasonable in this case.

[270] Finally, I find that the Plaintiff has not breached her duty to mitigate her damages. Her behaviours can be explained by thesomatic disorder. B. Past Pecuniary Losses [271] In Scott v. Renton,[12] our Court of Appeal discussed the appropriate approach for determining past loss of income. Atparagraph 30, it stated: [30] An award of damages for past loss of income must reflect as much as possible the actual loss suffered by the injured party up to thedate of trial.

That loss is equivalent to the income that the injured party would probably have earned prior to trial, but for the accident.Evidence of an injured party’s pre-accident income may serve as a basis to assess the income that he or she would probably have earnedduring the pretrial period. However, historical earnings may not always be a true indicator of an injured party’s past loss of income. […] [272] In Chiasson v. Chiasson,[13] our Court of Appeal

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