CHRONIC PAIN CASES
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CHRONIC PAIN

Since the publication of "Chronic Benign Pain Syndrome Revisited", (1992) 50 Advocate 913, the courts have continued to grapple with the difficult issue of "psychological chronic pain", or pain that continued "in the absence of objective symptoms, well beyond the normal recovery period". Recently, the Court of Appeal released two pivotal decisions, designed to lay down guidelines and principles to the lower courts, but which at the same time affirmed that assessments of "psychological injuries" are governed by ordinary tort principles of causation (no different, really, than assessment of a broken leg). The cases are Maslen v. Rubenstein (1993), 83 BCLR (3d) 131, and Yoshikowa v. Yu, unreported, March 25,1996, Vancouver Registry No. CA018695 (B.C.C.A.).

At the end of the day, the Court of Appeal confirms in these cases that a victim's pain following an injury is compensable, even in the absence of "objective signs', to explain the basis of that pain, if it is triggered by the accident and the plaintiff cannot, through his or her own willpower or resources, overcome it.

THE MASLEN DECISION

Mrs. Maslen was 51 years old at the time of trial. Prior to the accident, which occurred on February 13, 1986, she had been employed as a seamstress, making work clothes on industrial sewing machines. A year before the accident, she won $500,000 in a lottery but gave a lot of it away and continued working. She stopped working only as a result of the injuries suffered in the accident. She suffered what could be called the "usual" soft tissue injuries, and complained for 3 1/2 years, from the time of the accident to the time of trial, with some inconsistencies of description, severity and even location of symptoms. When she returned to Spain during her recovery period, her symptoms almost completely disappeared. Mr. Justice Spencer awarded her some $134,000, based largely on the fact that the accident caused a psychological reaction that played a role in the perpetuation of her symptoms. This, he said, was as compensable as her physical injuries.

The case went to the Court of Appeal. The court first discussed the nature of psychological injuries per se. The judgment was written by Mr. Justice Taylor, who defined the boundaries of the appeal in the following way:

This appeal is concerned with those post-traumatic phenomena - sometimes identified with and sometimes distinguished from conditions known as "Idiopathic pain disorder", "chronic (or chronic benign) pain syndrome", "functional overlay" and "somatoform pain disorder" - which involve continued suffering In accident victims after their physical injuries have healed. (at page 132)

The Court of Appeal first discussed the "basic principles" applicable to "these difficult cases". The court outlined:

(a) the onus of proof;
(b) terminology;
(c) the evidence necessary to meet the onus of proof; and
(d) mitigation.

I shall deal with each of these principles in turn.

Onus of Proof

Mr. Justice Taylor implied that the courts approach chronic pain, or psychological injuries, with some suspicion. From that viewpoint1 he said:

So there must be evidence of a "convincing" nature to overcome the improbability that pain will continue, in the absence of objective symptoms1 well beyond the normal recovery period, but the plaintiff's own evidence, if consistent with the surrounding circumstances, may nevertheless suffice for the purpose. ( page 136)

With respect, the language used by Taylor, J.A. of "evidence of a convincing nature" is confusing. The personal injury plaintiff always bears the burden of proving that his or her injuries, or the resulting disability, were caused by the accident. That burden is assessed on a balance of probabilities. The Supreme Court of Canada in Snell V. Farrell, [1990] 2 S.C.R. 311 stated that the legal or ultimate burden of proof remains with the plaintiff, but in the absence of evidence to the contrary, an inference of causation may be drawn, although positive or scientific proof of causation has not been adduced. The court in Snell further held that it is not essential that medical experts provide a firm opinion supporting the plaintiff's theory of causation. Doctors deal with scientific certainties. The law requires only "more probably so, i.e. 51%". So it is quite unclear what exactly Taylor, J.A. meant by the term "convincing". It cannot be more than on a balance of probabilities, but the language flirts with the possibility that some other, higher burden may be imposed in these cases. There is no clarification of this point, either in the judgment itself or in the lower court cases subsequent to Maslen.

Terminology

The Court of Appeal confirmed in Maslen that the law deals differently with chronic pain injuries than do the psychiatrists. Psychiatry has a diverse terminology for psychological reactions to pain: somatoform disorders, conversion disorders, posttraumatic stress disorder, depression, chronic pain, chronic benign pain, accident neurosis, functional overlay, etc. This terminology was viewed not as important by the Court of Appeal. At trial, Spencer, J. said that "without naming the exact condition", he was satisfied that the plaintiff had experienced limitations on her activities and that her condition had a "psychological component". This approach was upheld on appeal:

It was not, in my view, necessary for the trial judge to assign a name to Mrs. Maslen's condition in order to find that she suffered from it and that compensation was due in respect of it. It was enough that the Judge accepted that the plaintiff told the truth in describing her condition, and that he found its cause to be the motor vehicle accident. (pages 142-143)

It is submitted that the reason the Court of Appeal was unconcerned with the particular label attached to Mrs. Maslen's condition is that the court perceives its role to be different from the role of the medical community. The medical community Is concerned with classification and treatment. The court's function is to determine whether the plaintiff is telling the truth when he/she testifies that pain from the accident has continued past the normal healing period. It is thus inappropriate to ask the court whether a particular psychological condition is compensable. Instead, the court should focus on issues such as credibility and consistency in the evidence:

It is not particularly helpful, in my view, to ask whether a psychological condition such, for instance, as the "chronic pain syndrome" is "compensable". I say this because there seems to be no settled view within the medical community as to what diagnoses - sometimes, indeed, called "non-diagnoses" - mean. It is, moreover, unlikely that medical practitioners can answer, as a matter of expert opinion, the ultimate questions on which these cases often turn. The Court must decide for itself the critical issues of credibility and the balance of probabilities between explanations for the plaintiff's condition. Views expressed by doctors on the plaintiff's reliability; truthfulness or motivation cannot be decisive, for the law requires that these matters be decided by the Court itself, and that they be decided on the basis of evidence given at trial... (page 135)

Evidence Necessary to Meet the Onus of Proof

The Court of Appeal held in Maslen that the evidence necessary to establish causation (and therefore entitlement to damages) is twofold. The plaintiff must prove:

(a) that his/her psychological problems have their cause in the defendant's unlawful act, rather than in any desire on the plaintiff's part for such things as care, sympathy, relaxation or compensation; and
(b) that he/she cannot be expected to overcome those problems by use of his or her own inherent resources.

On the first issue, the Court of Appeal said that if psychological problems exist, or continue, because the plaintiff clings to them, or does not wish them to end, then the cause of the psychological difficulties (or, the cause of the pain) is not the accident, but an internal cause (which is not compensable). If the court cannot say whether the plaintiff really desired to be free of the psychological problem, then the plaintiff will not have met the onus of proving causation (see pages 134 +135). On the second issue, the court must be satisfied that the plaintiff really did want to recover, but could not do so without assistance.

Mitigation

After the plaintiff has established a prima fade case for recovery of damages for suffering unaccompanied by objective symptoms, the defendant is then free to raise issues of mitigation. The defendant can, for example, attempt to establish that by following advice that he or she received or ought to have received, the plaintiff could have overcome the problem, or could in the future overcome it. That advice might, for instance, be to eliminate treatment, make "lifestyle changes", or adopt some psychotherapy, physiotherapy or exercise regime (page 135).

THE YOSHIKAWA DECISION

Three years after Maslen, the Court of Appeal set out in Yoshikawa specifically to clarify what had earlier been decided in Maslen.

Prior to the accident, Mrs. Yoshikawa, 53, ran the family home; taught her daughter dancing, singing and music; played tennis and volleyball; and was an active supporter of the church. In the accident, she suffered facial lacerations, loosened front teeth, sprains of her neck and right shoulder, and contusions of her chest wall. The lacerations healed. The soft tissue injuries were classified as mild to moderate. She should have recovered in a few weeks or months. However, she didn't. She complained of discomfort and pain, dizziness, sleeping difficulties and depression. She spent most of her time in a wheelchair. She wouldn't leave the house alone. She received constant care from her family. Her husband went so far as to quit his job to care for her. She refused to see a psychiatrist.

Mrs. Yoshikawa was found to have a "somatoform pain disorder". This meant she had a "need to be in the dependent, sick role with her husband and daughter expressing tremendous concern about her and her physical pains and illness have maintained her in the invalid role with ongoing attention thereby obtained from her family".

She was not doing this consciously.

Trainor, J. concluded that Mrs. Yoshikawa's pain was real and that it was caused by the injuries resulting from the accident. The onus set out in Maslen was thus met. He accepted the psychiatrist's opinion that the plaintiff was not a malingerer, and she was not "intentionally producing some or all of her symptoms with the goal of financial or other gain or reward". Non-pecuniary damages were assessed at $120,000; lost opportunity $37,000; cost of future care $40,000; loss of homemaking $35,000. Damages for the expenses incurred for counselling services were also awarded. The husband, who stayed home with her, was awarded $54,000 for his lost opportunity.

The case went to appeal. There were separate judgments, written by Lambert, Cumming and Rowles, JJ.A., although all three members of the panel agreed that the appeal should be dismissed.

The majority judgment was written by Cumming, J.A. and concurred in by Rowles, J.A. They both comment on the Maslen decision in the course of their judgments. The more far-reaching decision, insofar as it applies to principles and directions to the lower court, is the judgment of Lambert, J.A. His Lordship set out specifically to further clarify the court's approach to:

. . . the question of persistent and continuing psychological symptoms associated with the physical injuries which have healed or which should have healed.

Lambert, J.A. said that psychological Injuries are to be governed by ordinary tort principles, including causation principles relating to cause in fact, proximate cause and intervening cause. In his opinion, these principles were not set aside by the specific rules developed by Mr. Justice Taylor In Maslen v. Rubenstein. Instead, those rules represent particular applications of ordinary tort principles.

To assess psychological injuries involves a two-step process:

(a) First, ask: Was the plaintiff's act the "cause in fact" of her continuing pain?

(b) Next, ask: Was the plaintiff's act the "proximate cause"?

The first question, the "cause in fact" inquiry, is a factual one. The court asks whether the psychological symptoms from which the plaintiff is suffering would have been caused in any event, even if the defendant's wrongful act had not occurred. This is the "but for" test. If the plaintiff cannot meet the "cause in fact" test, the defendant is not liable for the loss. The plaintiff's pre-accident lifestyle, behaviour and medical condition are of obvious importance when addressing the cause in fact question.

The question about "proximate cause" is a question of law. It is governed by principles of legal policy.

Lambert, J.A. says that the following principles, outlined in Maslen, touch upon the concept of "proximate cause":

(a) The plaintiff's psychological problems do not have their cause in the defendant's unlawful act if they arise from a desire on the plaintiff's part for such things as care, sympathy, relaxation or compensation;

(b) The plaintiff's psychological problems do not have their cause in the defendant's wrongful act if a plaintiff could be expected to overcome them by his or her own inherent resources, or willpower;

(c) If psychological problems exist, or continue, because the plaintiff for some reason wishes to have them, or does not wish them to end, their existence or continuation must be said to have a subjective, or internal, cause; and

(d) If a court could not say whether a plaintiff really desired to be free of the psychological problems, the plaintiff would not have established his or her case on the critical issue of causation.

These questions of proximate cause are all considered from the perspective of the plaintiff's conscious non-recovering behaviour. If the plaintiff's non-recovering behaviour is unconscious (i.e., not malingering or fabricated), this will not disentitle compensation. This is a very, very important clarification by the Court of Appeal. Many of the lower decisions have held that if a plaintiff was consciously or unconsciously motivated by a desire for care or sympathy, that was a condition that was not compensable. All three judges in Yoshikawa say that is not the law.

In the words of Lambert, J.A.:

My first observation is that I think it is correct to treat a plaintiff's own conscious wish to receive care, comfort and attention, or the plaintiff's own conscious failure to exercise his or her willpower to bring about a healing of the symptoms, as coming within the principle of new intervening acts, and to treat those occurrences as giving such a sufficient new impetus or deflection to the chain of causation as to render the original wrongful act no longer a proximate cause. But if the plaintiff's wish to receive care, comfort and attention is accepted as being entirely unconscious, and contrary to the plaintiff's own apparent efforts to attain a healing of the symptoms, or if the plaintiff's own failure to exercise his or her own willpower is unconscious and contrary to the plaintiff's own apparent efforts to attain a healing of the symptoms, then I would not be prepared to say that the plaintiff is still excluded from compensation for these psychological symptoms. In short, I think that the word "conscious" is implicit in points 3, 4, 5 and 6 that I have extracted from Mr. Justice Taylor's reasons in Maslen.

In the words of Cumming, J.A.:

This passage was quoted with approval by Macfarlane, J.A. in giving the judgment of this court in Shelton v. Stewart et of. (1994), 93 BCLR (2d) at 200: before setting out that quotation, Macfarlane, J.A. had said:

I do not think that the trial judge misdirected himself on the law or misapprehended it. He considered the leading cases. At the heart of those cases is the question whether the symptoms of which a claimant complains are genuine, or whether they are motivated by a desire for financial gain. For there to be such a desire, it surely must be a conscious one - one which can be controlled or overcome by the claimant.

And in the words of Rowles, J.A.:

On the main ground, the appellant contends that the "legal" causation between the accident and the injuries was not established because it was the opinion of the doctor, whose evidence the trial judge accepted, that the root cause of the plaintiff's symptoms resulted from a desire, although not a conscious one to obtain care and sympathy from her family. ... With deference, I am of the view that those arguments ignore some well-established principles in tort law, and are based on a misreading of Maslen.

This decision I consider binding upon us.

Lambert, J.A. went on to outline other factors to be kept in mind when addressing proximate cause, an analysis which finds agreement in the reasons of Cumming, J.A. and Rowles, J.A.:

1. The defendant takes his victim as he finds him. The thin-skull rules applies to psychological injuries as well as physical injuries;
2. The principles of novus actus interveniens can apply, in some circumstances, to psychological injuries;
3. A plaintiff's own conscious wish to receive care or comfort, or a plaintiff's own conscious failure to exercise his own willpower to overcome psychological symptoms can be an example of a novus actus, but if those behaviours are motivated by an unconscious drive, the injury will still be compensable;
4. A vulnerability, or a predisposition to psychological problems, does not equal a novus actus. Foreseeability does not play a role in thin-skull cases, except where the condition was so prevalent, and the injuries so trivial that the psychological damage would have happened with virtually any minor insult; and
5. There are many, many cases in the courts involving psychological injuries. This is a very prevalent problem.

Accordingly, because Justice Trainor accepted that Mrs. Yoshikawa was not a malingerer, and was not motivated by any conscious desire to resist recovery, the appeal was dismissed, except for the adjustment of non-pecuniary damages from $120,000 to $75,000. All other awards were upheld.

CONCLUSION

Maslen has been cited extensively since 1993 (see Appendix).

Although Maslen suggests that cases of chronic pain are somewhat different from other personal injury cases, it is submitted that in the end all such cases are quite similar. Every plaintiff suffering from a personal injury must establish that he/she is not malingering and that the pain complained of is real. Every personal injury plaintiff must establish that he/she wants to get better and will follow any reasonable programme of treatment to secure a recovery. If there are inconsistencies in the evidence with regard to the extent to which the plaintiff has suffered, that inconsistency will bear upon damages, whether the injury presents as a broken leg, which can be seen on an x-ray, or presents as chronic pain, which cannot. The key is to establish that the plaintiff is telling the truth, that the pain is real, and that the accident has had a major impact on the plaintiff's life.

As was succinctly put by Justice Macfarlane, J.A. in a decision following Maslen, Skelton v. Stewart (1994) 93 B.C.L.R. (2d) 200 (B.C.C.A.):

At the heart of those claims is the question whether the symptoms of which a claimant complains are genuine, or whether they are motivated by a desire for financial gain. For there to be such a desire it surely must be a conscious one - one which can be controlled or overcome by the claimant.

Once that basic question is answered, it is submitted that chronic pain caused by a defendant's unlawful conduct should be compensable, just as pain that is accompanied by objective physical indicia is compensable.

APPENDIX

Maslen v. Rubenstein (1993) 83 B.C.L.R. (2d) 131 (B.C.C.A.)

Followed:

Holman v. Martin (1995) 30 Alta. L.R. (3d) 378
Watkins v. Goode [1995] 7 WWR. 523 (Alta. Q.B.)
Skelton v. Stewart (1994) 93 B.C.L.R. (2d) 200 (B.C.C.A.)
Cameron v. Hot Springs November 2, 1995 (B.C.S.C.)
Lowe v. Jenkinson (1995) 12 B.C.L.R.(3d) 50 (B.C.S.C.)
Urquhart v. Leach June 16, 1995 (B.C.S.C.)
Wilson v. Isley February 10, 1995 (B.C.S.C.)
Meinardus v. Carson January 30, 1995 (B.C.S.C.)
Ridge V. Perdue January 27, 1995 (B.C.S.C)
Diotte v. Miller November 23, 1994 (B.C.S.C.)
Huetzelmann v. Baker Estate October 7, 1993 (B.C.S.C.)
Knight v. Fletcher February 11, 1994 (B.C.S.C.)
Pack v. Rauser February 14, 1994 (B.C.S.C.)
Yoshikawa v. Yu March 31, 1994 (B.C.S.C.)
Buteikis v. Adams (1994) 90 B.C.L.R. (2d) 213 (B.C.S.C.)
Kokkinis V. Hall June 8, 1994 (B.C.S.C.)
Gill v. Sandhu September 1, 1994 (B.C.S.C.)
Budnark v. Sun Life (1994) 92 B.C.L.R. (2d) 242 (B.C.S.C.)
Caner v.Accola February 17, 1994 (B.C.S.C.)
Spencer v. Soanes April 6 1994 (B.C.S.C.)
Villeneuve v. Kowbel [1995] 7 WW.R. 629 (Sask Q.B.)
Beyrouti v. Beyrouti December 3, 1993 (B.C.S.C.)
Colter v. Nagel February 6, 1995 (B.C.C.A.)
Gray v. Gill November 11, 1993 (B.C.S.C.)

Not Followed:

Mackie v. Wolfe (1994) 21 Alta. L.R. (3d) 11 (Alta.Q.B.)

Mentioned:

Martorana v. Lee (1994) 17 Alta. L.R. (3d) 409 (Alta. Q.B.)
Raycraft v. Gordon "N" Gordon October 31, 1995 (B.C.S.C.)
Dixon v. Garland October 26, 1995 (B.C.S.C.)
Nanji v. Hewlett October 24, 1995 (B.C.S.C.)
Markstrom v. Samson August 23, 1995 (B.C.S.C.)
Massouras v. Lucier February 22, 1995 (B.C.S.C.)
Igardashi v. Smith February 20, 1995 (B.C.S.C.)
Kobelt v. Sheedy June 10, 1994 (B.C.S.A.)
Sattar v. Hasan December 21, 1994 (B.C.S.C.)
Miller v. MacKay November 10, 1994 (B.C.S.C.)
Lucas v. Lucas July 20, 1994 (B.C.S.C.)

Distinguisbed:

Sperling v. Lee September 30, 1994 (B.C.S.C.)

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