Facts:
In the main action, the Plaintiff, Geraldine Sanson claims damages from the Defendant for damages arising from a collision of October 19, 2012, when the Plaintiff was stuck by the Defendant vehicle while riding her bike.
Ms. Sanson is a lawyer, and she was called to the Ontario bar in 1990. Her practice focused on human rights, where she gained prominence winning the Law Society Medal in 2000, along with other work accolades. She maintained a successful practice making a comfortable living. Ms. Sanson was born in 1957.
Considerable evidence was devoted in the case to the type of practice that Ms. Sanson had, along with her income generated from that practice. The court found that in her most successful year, she generated approximately $250,000 in gross revenue.
Prior to the collision the Plaintiff was in good health, regularly working out and involved in an active social life.
The Plaintiff attempted to return to work after the collision, but as of June 2015, stopped working completely.
Liability:
The Plaintiff’s bicycle was “clipped” by the Defendant just as she entered a traffic intersection. As a result of the initial contact, the Plaintiff was tossed off her bike, landing on the ground. The Plaintiff did not see the Defendant vehicle prior to impact. The Defendant’s evidence was that the Plaintiff’s bike “bumped into his passenger door”.
The court, noting the reverse onus on the Defendant in proving negligence against Plaintiff, a rider of a bicycle on a public roadway under s. 193(1) of the Highway Traffic Act , found the Defendant liable for the collision despite no charges being laid by the police. At paragraph 102 the court states as follows:
In my view, given the facts as I have found them above, Mr. Paterson has not discharged the reverse onus here. In my opinion Mr. Paterson’s self-acknowledged failure even to look at Ms. Sanson once the light turned green, in order to ensure that he could safely pass her as he entered the intersection, reflects a failure to meet the minimum requirements of basic prudence in the circumstances. I do not find that any conduct on Ms. Sanson’s part caused or contributed to the Collision.
Damages:
Ms. Sanson’s position on the damages are summarize by the court at paragraph 108:
By way of overview, Ms. Sanson’s evidence and that of various friends, colleagues, clients and others who testified on her behalf was that Ms. Sanson has never been able to recover her pre‑Collision persona and condition. Despite numerous attempts following the Collision to return to her work and usual activities, she has simply been unable to do what she used to do. Ms. Sanson maintains that the consequence of the Collision has been the effective end of her productive working life, and a severe curtailment of her activities, her social life, and virtually every aspect of her former existence.
The Defendant’s position on damages were summarized at paragraph 109
Mr. Paterson’s position, on the other hand, is that Ms. Sanson’s career was, as of the time of the Collision, on a demonstrable downward trajectory. He alleges that Ms. Sanson’s purported injuries from the Collision are significantly exaggerated and that, in effect, Ms. Sanson has embraced and overstated those injuries as a face-saving way out of a deteriorating career. He maintains that the evidence confirms that Ms. Sanson is not nearly as restricted in her activities as she claims, that she attends concerts and other artistic performances on a regular basis without apparent consequences to her health (contrary to her allegations), and that she is seeking an award of damages to allow her to continue her lifestyle without having to do the hard work that got her to where she was at the pinnacle of her career. Mr. Paterson alleges this pinnacle pre-dated the Collision by some years, since at the time of the Collision the inexorable downward momentum of Ms. Sanson’s practice was well underway.
The Plaintiff was asked but declined to call the police and/or ambulance at the scene of the collision. The evidence was that she just wanted to get home. The Plaintiff decided to cycle home, about a 10-minute ride from the scene of the collision. Once she got home, she called 911. In evidence at trial was the 911 call, where the Plaintiff was clearly upset, but denied the need for ambulance.
The Plaintiff returned to work immediately following the collision. She stated that it was difficult for her to do the work, but she had hearings for which she had to prepare, including an upcoming appeal at the Court of Appeal. She had expected that her symptoms would wane and that she would make a full recovery. Further, the Plaintiff went on a pre-planned trip to New Orleans shortly after the collision. The Plaintiff’s first medical attention was sought through her family doctor some three days post collision. In terms of objective, verifiable injuries, the only notation was of a “tiny cut/abrasion chin”, “bruised palms no cuts” and small knee abrasion. Plaintiff’s gait was normal, had no swelling in her legs and eyes were normal. The MRI of her head was normal. She complained of a headache. There was minimal damage to the Plaintiff’s bicycle.
The Plaintiff consistently complained in the weeks, months and years following the collision of headaches (ten migraines per month). Ms. Sanson was diagnosed with a mild traumatic brain injury (mTBI). Despite this, her billable hours were roughly the same as before the collision. The Defendant introduced surveillance evidence at trial showing the Plaintiff carrying on a normal life, attending concerts, musicals, movies and the like without any outward signs of impediment.
The court notes at paragraph 129 that the best evidence of an mTBI is likely to come, from ongoing testing and assessment of psychological function, particularly in neurocognitive domains, and from long-term longitudinal observation of the individual’s ongoing capacity for work and other activities.
The court notes at paragraph 155 that “There is overlap and a degree of uncertainty, for example, in the precise meaning and degree of head injury encompassed by an mTBI versus a concussion, and a lack of a uniform definition of “post-concussion syndrome”.”
The Plaintiff called both treatment providers who were tendered as “participant expert” and “litigation experts” and several lay witnesses. It should be noted that there were no validity concerns raised in the neuropsychological testing completed by the Plaintiff.
The Plaintiff’s participant experts were Dr. Cancelliere (clinical neuropsychologist), Dr. McNally (family doctor), Dr. Oucherlony (certified family doctor with interest in ABI), Dr. Lay (neurologist), Elise Shumway (Speech language pathologist) and Claudia Maurice (occupational therapist).
The defence relied on the following expert evidence: Dr. Angel (Accident Benefits neurologist hired by the Plaintiff’s insurer), Dr. Zakzanis (Accident Benefits neuropsychologist hired by the Plaintiff’s insurer) and Dr. Jovanovski (Defence Medical neuropsychologist expert).
In discussing the theories of the case, the court ponders at paragraph 259 the following:
What then would cause Ms. Sanson effectively to abandon her legal practice and curtail various other aspects of her life in favour of the potential proceeds of this claim?
The court concludes at paragraph 271:
In my view, absent some other intervening cause, which is not alleged let alone evident, “but for” causation is established where the expert evidence confirms that the injuries in issue arose as a consequence of the collision, whether directly (as opined by Dr. Cancelliere) or indirectly (as opined by Dr. Zakzanis and Dr. Jovanovski). There is no suggestion in the medical evidence that Ms. Sanson’s symptoms and limitations are not genuine; to the contrary, the neuropsychological testing objectively confirms their validity. Although there is debate about the extent to which such symptoms genuinely persist — discussed below, and largely based on non‑medical evidence — there is no debate about whether Ms. Sanson suffered injuries as a result of the collision, which have been verified on neuropsychological tests administered by each side over the course of a number of years.
Paragraphs 295-297 summarize why the court favours the Plaintiff’s claim as opposed to the Defendant’s theory of damages:
[295] First, Ms. Sanson maintains that she has never alleged that any of the activities the Defendant points to are impossible for her. Rather, they are activities that, while once accomplished by Ms. Sanson within tight timeframes and/or without any physical consequences, now require considerable preparation, are not done as well as they used to be, and invariably are taxing to the point of causing often severe symptoms. Ms. Sanson also notes in this regard that many people in her orbit, including numerous treatment providers, have consistently encouraged her to try work, social, and recreational activities that she formerly enjoyed, with a view to recovering at least some semblance of her pre-Collision life (a fact that some of the treatment providers who testified confirmed as true). [296] Second, as discussed extensively above, there is in fact medical evidence, including objective neuro-cognitive data, that in fact provides independent support for Ms. Sanson’s claimed limitations. As also discussed above, that evidence is effectively uncontroverted; the Defendant has offered little or no compelling evidence to refute it. [297] Third, I am simply not persuaded by the Defendant’s theory as to Ms. Sanson’s deliberate effort to “check out” of her practice and use the Collision as an off-ramp from her allegedly difficult, demanding and unprofitable practice. [303] In short, I found Ms. Sanson to be a credible witness, whose complaints are confirmed by essentially unchallenged medical evidence. I believe her.Damages were awarded as follows:
- General damages – $250,000
- Past Income loss – of note there is an interesting discussion at paragraph 390 concerning the “private insurance exception” which permitted the Plaintiff to keep $60,000 paid by Manulife in a “business expense benefit” from being offset from her past income loss as the benefit was not ruled akin to an “income continuation plan” under the Insurance Act. The court found the Plaintiff’s residual earning capacity to be $210,000 per year adjusted for inflation as per the rules.
- Future income loss – the court concluded that the Plaintiff had no ability to earn income after June 2015. The court rejected the evidence of Dr. Jovanovski who opined that the Plaintiff did indeed have some residual earning capacity. The court found that the expected retirement age absent the collision would have been 69.
- Past care – the court awarded $11,716.87 for prescription medication, $6,000 for personal training, $2,500 for massages, $19,638.91 for cognitive communication therapy, $4,174.28 for past housekeeping expenses, $1,725.00 of invoices from Women’s College Hospital for various injections. However, the offsets from the Accident Benefits provider and through an extended health policy reduced these damages to zero.
- Future care – $23,013.03 was awarded for prescription medication, $78,342.06 for Botox and $3,000 for cognitive communication therapy and some award for housekeeping.
The court ruled that the Plaintiff passed “threshold” as she sustained a permanent and serious impairment of an important function.
The court left the parties to make the exact calculations based on the rulings above. Damages were calculated at $2.6 million in total, with $1.2 million for costs and disbursements. The Defendant’s offer was less than $300,000 prior to trial.
