15 de Julio de 2013.-
I. INTRODUCTION
[1] On April 10, 2009, the plaintiff was seated in the back row of an aircraft operated by Air Transat A.T. Inc. (“Air Transat”) as it landed in Cancun, Mexico, on its flight from Vancouver, Canada. As the aircraft touched down and then braked, an unsecured food cart struck, with force, the back of the plaintiff’s seat. The plaintiff suffered personal injuries. The extent and duration of the plaintiff’s injuries were live issues at trial.
[2] On June 26, 2012, the plaintiff discontinued her claim against the then defendant Skyland Travel Inc.
[3] Many aspects of the usual law of tort and contract applied by this Court with respect to personal injury claims are displaced by what is commonly referred to as the Montréal Convention, which I describe in greater detail below.
[4] Air Transat has admitted liability but submits that the damages recoverable are governed by the Montréal Convention.
[5] For the reasons that follow, I award the plaintiff $60,000 as non-pecuniary damages flowing from “bodily injury” (the term used in the Montréal Convention), $20,000 for cost of future care and $11,355 in special damages. The plaintiff will also be entitled to damages for past income loss for the period from the date of the accident until her return to full-time employment on October 18, 2009.
[6] With respect to her claim for damages associated with continuing injuries and an associated loss of future earning capacity, the plaintiff did not discharge her burden to prove on a balance of probabilities that her injuries were such that she could not continue to work full-time after October 2009.
II. INJURIES PLEADED
[7] The plaintiff pleaded that she sustained injuries as a result of the accident including, but not limited to:
(a) numbness and tingling of the left shoulder, arm, wrist, hand, and fingers;
(b) acute impingement of the rotator cuff of the shoulder;
(c) neck pain;
(d) thoracic outlet syndrome;
(e) upper and mid-back pain;
(f) post-traumatic stress disorder; and
(g) headaches, dizziness, nausea, and sleep disturbance.
III. JUDGMENT REQUESTED
[8] The plaintiff asks for judgment for $1,144,689 plus interest and taxable costs. In closing argument, plaintiff’s counsel summarized the heads of damages:
Non-pecuniary $125,000
Loss of future earning capacity $839,997
Past wage loss $40,556
Future care $122,329
Spoiled holiday $3,351
Special damages $13,456 *
Total $1,144.689
* I believe counsel for the plaintiff incorrectly tallied the the items listed to be $12,047.
[9] The $839,997 claim for loss of future earning capacity is comprised of:
Future wage loss $736,709
Non-wage benefits $88,405
Pension loss $14,883
Total $839,997
[10]The $122,329 claim for cost of future care is comprised of:
Assistive devices $3,364
Heavier and repetitive cleaning $57,931
Seasonal cleaning $4,138
Feldenkreis sessions $236
Massage therapy $11,271
Acupuncture $270
Kinesiologist $424
Gym membership $8,463
Clinical psychologist $4,299
Pain program $11,522
Occupational therapist $1,513
Medication $18,880
Total $122,329
IV. PLAINTIFF’S BACKGROUND
[11] The plaintiff is a 38-year-old married woman. She was 34 years old at the time of the accident. She has no children.
[12] The plaintiff was born and raised in Ontario. She completed three years of post-secondary education in Religious Studies at Tyndale University in Toronto.
[13] In 2001, the plaintiff moved to Vancouver, British Columbia. In 2004, she married.
[14] Prior to the accident, the plaintiff and her husband engaged in various physical and social activities typical of a young couple.
[15] The plaintiff is a member of the B.C. Government and Service Employees’ Union (“BCGEU”). At the time of the accident, she was employed full-time as a Facilities Services Liaison Officer at the Riverview Psychiatric Hospital (“Riverview”).
[16] As a result of the accident, the plaintiff was able to qualify for short-term disability. She returned to work on a graduated basis, first part-time in August 2009 and then full-time in October 2009. She continued to work full-time at Riverview until shortly before it closed in the spring of 2012. With the imminent closure of Riverview, the plaintiff had to find a new position.
[17] As a BCGEU member, the plaintiff was able to obtain the position of customer service representative at the Product Distribution Centre (“PDC”) located in Coquitlam. At the time, the PDC was the responsibility of the B.C. Ministry of Labour, Citizens’ Services and Open Government. One of the PDC’s responsibilities was to administer an at-home program for the Ministry of Children and Families, which provided and distributed medical equipment for the benefit of medically fragile children.
[18] The plaintiff’s role was to handle requests, primarily telephone calls. In general terms, the plaintiff worked in a call centre environment as a call centre operator. The calls were often emotional requests from new mothers for particular equipment needed to support a struggling newborn.
[19] In the latter part of May 2012, the plaintiff left work and went on disability, citing reasons of pain and discomfort.
V. PLAINTIFF’S BURDEN
[20] The plaintiff’s burden is to prove her injuries on a balance of probabilities: F.H. v. McDougall, 2008 SCC 53. In the case at bar, Air Transat can be held liable only for damages sustained in the case of “bodily injury”, as that term is used in the Montréal Convention.
[21] In approaching the task before me, I am mindful of the observations of Chief Justice McEachern (as he then was) in Butler v. Blaylock Estate, [1981] B.C.J. No. 31 (S.C.) at paras. 18-19:
I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and these complaints of pain persist for long periods extending beyond the normal or usual recovery.
An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence –which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.
[22] A plaintiff does not need to show objective evidence of continuing injury in order to recover damages: Butler v. Blaylock Estate, [1983] B.C.J. No. 1490 (C.A.), at paras. 12-13.
VI. PLAINTIFF’S TESTIMONY
[23] I found the plaintiff’s testimony to be unreliable in connection with her alleged continuing injuries. I set forth some examples below.
(a) Post-traumatic stress disorder
[24] As noted above, the plaintiff claims damages for post-traumatic stress disorder (“PTSD”). At trial, the plaintiff testified in cross-examination:
Q I’m sorry, the fear that you are having in the car is of something happening that is similar to what happened on the plane, you’re – you’re afraid of that hap – some – something like that happening again?
A Well, not in the sense of – because obviously that is a very specific thing, being hit by that cart, but just it’s kind of transferred into a more general sense of transportation; anything where anything is moving by me quickly I have a lot of anxiety.
Q All right. And those were – all of those things, I understand your evidence to be that you didn’t experience them before the accident?
A No.
Q And so all of this fear comes from the experience of the incident, correct?
A Yes, I believe so.
...
Q All right. So I understand then, if I understand correctly, when you testified yesterday or the day before that you felt like a shut-in, you were afraid to go out, that’s – that’s not – that’s because you were afraid of being bumped, of the pain of being bumped that would be caused, is that right?
A Not just that; I felt like a shut-in because of how little I could do, how little I could cope doing things, so whenever people asked me to do stuff I couldn’t do very much, or I’d – I’d be in pain so I’d have to cancel or – that wasn’t anxiety, that was pain.
Q All right. And I understand that those feelings of fear, of going outside, of being in crowded situations, those are things you had experienced before the incident, correct?
A No, I think you’re misunderstanding. The – the fear when I’m out is of being put in worse pain. It’s not a social anxiety –
[25] During the examination for discovery, on June 14, 2012, the plaintiff testified:
Q All right. And these things are never – I guess never cut and dry, but it is fair to say that the fear and I guess, the, I don’t want to call it flashback, but the reliving of the incident and the fear that it will happen again, that permeates more of your life than just when you’re in car; is that right?
A Yes, it’s more predominant when I’m in a car. It’s definitely – but it happens even just walking. Like, if people are moving too quickly or whatever. I had a couple incidents happen after this that made me feel vulnerable in public. So I guess it does transfer over to that.
Q Were these actual incidents where you were in danger or were they just sort of things that happened that triggered this?
A I got bumped in the mall, and then it took about four days to recover just from someone bumping my shoulder.
[26] The foregoing testimony is from “read-ins” submitted as part of Air Transat’s defence. It is apparent that the “read-ins” were submitted to show the plaintiff’s contradictions relative to other evidence at trial in order to attack her credibility (see McDonald v. Shewchuk (1962), 39 W.W.R. 384 (B.C.C.A.), affirmed by S.C.C. (1963), 42 W.W.R. 512).
[27] During the trial, I was shown video surveillance of the plaintiff, shot on various dates and times in 2012, which had been commissioned by defence counsel but submitted as part of the plaintiff’s case. Several portions of the video show the plaintiff walking with her husband. On July 25, 2012, the plaintiff can be seen walking near the middle of a pedestrian walkway close to the Vancouver Law Courts (with a wall on one side and trees on the other), with her husband on her right. With an approaching couple also walking side by side, the plaintiff does not move significantly to her right or change places with her husband. There is no sign of anxiety or fear.
[28] Similarly, while the plaintiff and her husband stand watching a film crew near Robson Court, others walk near and past them, both in front and behind them. The plaintiff does not physically exhibit any signs of fear or even apprehension of being bumped. She does not keep a look-out. In short, the plaintiff’s sworn testimony is contradicted by her actions in the video sequences.
(b) Bruising
[29] Dr. Salvian is a vascular surgeon with particular expertise in thoracic outlet syndrome. The plaintiff called Dr. Salvian as an expert at trial. Dr. Salvian testified that the history he took from the plaintiff, as he would from any patient, was “almost verbatim. It actually is verbatim as what I understand they’re saying to me.” I have no reservations in finding that Dr. Salvian takes almost verbatim notes as he testified. At page six of his report, Dr. Salvian, in relating the history given to him by the plaintiff on April 18, 2012, states: “[s]he had bruises over the right side of her back and left neck pain.”
[30] On cross-examination, the plaintiff testified that her husband took a photo of her bruise under her right arm, which shows a bruise about three inches in length and one inch wide. The photo was taken on April 16, 2009 to document the injury. On cross-examination, the plaintiff stated that she was not aware of any other bruising.
(c) Hip injury
[31] On August 20, 2008, while at work, the plaintiff suffered an injury to her left hip. During cross-examination, the plaintiff could not initially recall taking more than possibly “a couple of days” off work to recover. The plaintiff confirmed that she continued to the time of trial to have “flare-ups” of pain in her left hip.
[32] The plaintiff testified in chief that she had ... “separated my hip”, “separated my sacroiliac” ... in the August 20, 2008 work incident. The plaintiff made a Workers’ Compensation claim. She did not return to work until September 8, 2008, some two weeks later.
[33] Dr. Salvian notes that the plaintiff reported difficulty sitting, especially at the PDC call centre. Dr. Salvian does not refer to or otherwise describe the hip injury in his report. In particular, I note the section of his report titled “History as related to me by Ms. Wettlaufer on April 18, 2012” where no mention of the hip injury is made.
[34] Dr. Salvian describes the plaintiff’s employment history prior to the April 10, 2009 accident as follows:
She was working for Provincial Health at Riverview. She had worked there since 2005 (full time until 2007). She worked 35 hours per week and had no major time off for medical problems. She was off for an infection for two weeks in 2006.
[35] Dr. Salvian was called as a witness after the plaintiff had testified. Plaintiff’s counsel made no attempt to address the omission of the plaintiff’s hip injury that resulted in her missing approximately two weeks of work.
(d) Stopping work at the PDC
[36] During the plaintiff’s testimony, the exact date that she told her employer, the PDC, that she had to stop work was not fixed with certainty. That said, it was certainly around May 23, 2012 (most probably May 23 or May 24, 2012). The plaintiff testified that she had to stop work because “she couldn’t function on the job” as a result of the pain she was suffering.
[37] As part of making a disability claim, the plaintiff told Dr. E. Naiker, her family doctor, that she could not work because the pain was “too severe” and she could not sit. The initial claim was rejected. The plaintiff met again with Dr. Naiker on June 8, 2012 and a further claim form was submitted.
[38] The plaintiff testified that she had a “lengthy conversation” with Dr. Naiker about the denied claim, that they had “discussed everything”, including what the plaintiff was doing to get better.
[39] On the resubmitted June 8, 2012 claim form, in describing (not diagnosing) the plaintiff’s physical or other limitations, Dr. Naiker wrote:
Patient in chronic pain despite stretching. Pain aggravated by sitting/standing. Thoracic outlet syndrome. Following up by specialist.
I note that by June 8, 2012, Dr. Salvian’s diagnosis of thoracic outlet syndrome would have been known. His report is dated May 24, 2012.
[40] On the resubmitted June 8, 2012 claim form, in answering whether the plaintiff was ready to return to work, Dr. Naiker also wrote:
No.
Patient also not able to do day-to-day activities.
[41] Based on the plaintiff’s testimony and the surrounding circumstances, I find that Dr. Naiker’s description accurately reflects what the plaintiff told her.
[42] Ms. Shaferman was the manager of the PDC. Ms. Shaferman testified that she interviewed the plaintiff for the position the plaintiff subsequently accepted. Ms. Shaferman stated that there were no job performance issues regarding the plaintiff. Ms. Shaferman also testified that the plaintiff spoke to her about her problems at work shortly before the plaintiff left. Ms. Shaferman was surprised when the plaintiff stopped work around May 23, 2012. In short, Ms. Shaferman’s evidence supports a finding that the plaintiff could work full time.
[43] Under cross-examination, the plaintiff was asked about the video surveillance that had been put into evidence as part of her case. As previously noted, the video shows the plaintiff walking with her husband near the Vancouver Law Courts and standing near Robson Court. The video also shows, among other scenes, the plaintiff walking with her husband and their dog in a neighbourhood park, walking on her own, driving, and walking the aisles of Costco as her husband shopped. The plaintiff testified as follows with respect to all of the video:
Q Now, before we look at these, Ms. Wettlaufer, I gather you’ve watched these videotapes several times now, correct?
A I watched them once in court and once at – with David.
Q Oh, okay, I’m sorry, I – your familiarity with them yesterday, I thought you had watched them a few times. So you’ve watched them twice then?
A Yes.
Q All right. Now, the time stamp here is May – May 26th, 2012, do you see that?
A Yes.
Q All right. And now before we get to the – to the tape we went – we went through and we watched them all.
Now, will you agree with me that in all of these tapes there is no – there is no expression of pain or any – or any – even any indication of pain in these tapes, do you agree with that?
A Probably not to you; I see it because it’s my body.
Q Oh, I see, but –
A So I know how I move and how my face normally would look –
Q Yes.
A – but no, to people who don’t know me they wouldn’t see.
Q I see. So it would take you to know by looking at these – the expressions of pain rather than me, because I don’t –
A Some –
Q – I don’t know you?
A I think some are obvious. I think my rigid movement for the most part throughout the videos is not seen as normal. That’s not how I normally move and I think people would recognize that usually.
Q And the rigid example I think you – you’ll recall was when you were walking your dog and you were – you were turning your body, is that right?
A And just the way I was walking in general of looking straight ahead mostly and just very - just too aware of what I am doing instead of just being free and out and enjoying life –
Q Right.
A – and moving fluidly.
[44] Defendant’s counsel also put questions to the plaintiff regarding portions of the May 26, 2012 video where the plaintiff and her husband are walking their dog in a neighbourhood park. The video shows the plaintiff taking photos of trees, holding up a cell phone camera, and then easily crouching down twice to take pictures of flowers. The plaintiff testified:
Q And do you remember this day we talked about yesterday, May 26th, 2012?
A Yes.
Q You were heading out for a walk?
A Yes.
...
Q Now, I understand here, if you’ll remember, you were taking photos of flowers, was it?
A Yeah, these trees with blossoms on them.
Q Those are the trees, all right. And so here you’re able to lift your arms up above shoulder level and take the picture, correct?
A Yes.
Q All right. And then I believe that you crouched down a couple of times, coming up and again raising your arms up away from – or raise your arms up anyway in taking the picture, is that right, that’s your recollection?
A Yes.
Q All right. And then you’re up, then you’re down again taking more pictures, correct?
A Yes.
Q All right. Now, taking into account that I don’t know you, I don’t see any hesitation or any caution or – or any expression or indication of pain there. Now, you would disagree, is that right?
A Yes, I would.
Q All right.
A Because you can’t see – this is what I find so frustrating about this whole thing is if – if you’re injured on the outside and it shows everyone knows. If you have pain that no one can see then it’s like it doesn’t exist.
You still live. You still move through the world. You still do things. I do things all the time that hurt me. It’s part of life, like I can’t – I – you know, but I choose moments and I don’t overdo it, and there are some things that I can do with mild elements of pain.
I can do those movements. I never said I couldn’t. My problems are other than that.
[45] The video continues and shows the plaintiff meeting a friend in the park. Defendant’s counsel questioned and the plaintiff testified:
MR. DERY: Now, I’m going to fast-forward here again.
Q Now, this is a clip I believe your testimony was you ran into a neighbour?
A Yeah.
Q All right. And I believe there is a point here where she made you laugh.
A Right there – oh, not yet. There we go.
Q All right. Now, I understand from your evidence when we were watching this video that that caused you pain, correct?
A I don’t remember this day, but I know certain movements and what tweaks me later, what doesn’t.
Q So you don’t remember experiencing pain right there in those movements?
A No, I don’t –
Q Oh, I see.
A – remember this day period, like and all the movements. I remember bumping into Sandra, meeting her new dog, but – well –
Q All right.
A – you just do things and hide them from – she –
Q I understand.
A No, I don’t think you do.
[46] The plaintiff also testified that when she is walking, she experiences less pain.
[47] I note that the May 26, 2012 video was shot only several days after the plaintiff left work and two days before she went to Dr. Naiker to start the disability claim process, which, as part of the June 8, 2012 resubmitted claim, included Dr. Naiker’s description that the plaintiff “was also not able to do day-to-day activities”.
[48] The plaintiff’s neck movements shown in the May 26, 2012 video, especially when her friend makes her laugh, are also not consistent with Dr. Salvian’s description of the plaintiff’s neck pain given to him by the plaintiff during his April 18, 2012 interview with her. This portion of Dr. Salvian’s report reads:
Neck pain.
There is a general stiffness of both sides of the neck. She has a feeling like a “metal bar” running down the left side of her neck. The neck pain is always present in a mild form but is worse during the day.
Looking up, reaching, lifting, doing the dishes, chopping vegetables or sitting too long make all of her symptoms worse.
Turning her neck also makes it worse.
The neck pain began immediately after the accident of April 10, 2009.
The neck pain has gotten a little better but she feels it plateaued about a year ago, and now is getting neither worse nor better.
[49] A plaintiff’s description of his or her symptoms underpins any expert opinion tendered on that plaintiff’s behalf. Where the description is unreliable, the opinion of the expert will be unreliable and, accordingly, should be given less weight. I have not found the plaintiff to be reliable in the description of her continuing injuries. For this reason, I have given little weight to the expert opinions of Dr. Salvian and Dr. James, a psychologist called by the plaintiff. Dr. Lamba, a psychiatrist called by the defendant, noted the vulnerability of a proper diagnosis to reliable self-reporting of a subjective nature. He also noted that various questionnaires such as Structured Clinical Interview for the Diagnostic and Statistical Manual of Disorders–IV (Axis I), Trauma Symptom Questionnaire, and the Clinician-administered PTSD scale, “while useful in clinical and research settings, are not normal for use in forensic/litigation setting[s]”. Dr. James had used these types of questionnaires in forming his opinion of the plaintiff’s psychological conditions.
[50] In Lenoard v. British Columbia Hydro and Power Authority (1964), 50 W.W.R. 546 (B.C.S.C.), Chief Justice Wilson described the importance of the credibility of a patient’s description of his or her symptoms to the usefulness of an expert’s report. Wilson C.J. stated at 548:
I now enter into an area in which I must consider subjective as well as objective evidence because both were placed before me without objection by counsel. All physicians must, I think, rely to some extent on what their patients tell them. If, for instance, a patient had a pain in his neck and went to a doctor mum, challenging him to find what, if anything, was the matter with him, then I think that doctor would be in almost as difficult a position as a lawyer would be if all his client told him was that he wanted to sue Tom Jones, and condescended to no further detail. When the doctor relates in court what his patient told him, he may be stating hearsay, but common sense in the courts has long ago rejected the idea that this evidence may not be heard and has accepted the idea that it should be listened to, not because it proves by itself the truth of the thing stated by the patient to the doctor, but because it defines to an extent his area of exploration and, if confirmed by the doctor’s objective observations and by the patient’s evidence given at the trial, may be convincing. I see no other approach to medical evidence. It is closely allied to the hypothetical question often put to other expert witnesses where the witness is asked: “Well, granting the existence of such and such facts, what is your opinion?” The doctor says he accepted some statements made by his patient as facts and formed an opinion thereon. Such an opinion, I think, is subject to criticism if the patient does not appear as a witness and corroborate the existence at the time of the symptoms alleged to have been described to the doctor. Such an opinion, in so far as it relies on the credibility of the patient, is subject to rejection by a judge or jury who, having heard the patient, do not find him credible. I do not think they are bound by the doctor’s opinion as to credibility but they must pay a considerable regard to it, particularly if it is related to associated objective evidence, such, for instance, as evidence of spasm. But I do not see any reason why a judge or jury, having heard the expert and the patient, should not, in a proper case, reject the evidence of the expert on the ground that the patient is not a credible witness and that, therefore, the hypothesis on which the expert gave his opinion is not established, having, of course, the fullest regard to the expertise of the doctor and to any objective evidence he has propounded. If this were not so then judges and juries would be completely bound by the opinions of experts as to credibility, and this cannot be.
[51] In sum, I find the plaintiff did suffer whiplash-type injuries as a result of the April 10, 2009 accident. She also experienced emotional distress such as the fear of flying home to Vancouver and a fear of “being bumped again”. The fear of “being bumped again” had disappeared entirely by May 2012.
[52] At trial, defendant’s counsel, properly, did not seriously challenge the fact that the force of the food cart hitting the back of the plaintiff’s seat would have probably caused whiplash-type injuries. It becomes a matter of the duration and severity of these injuries. On a balance of probabilities, the plaintiff has not established that her injuries caused by the April 10, 2009 accident were such that she could not continue to work to work full time after October 2009.
[53] In Le v. Milburn, [1987] B.C.J. No. 2690 (S.C.), Southin J. (as she then was) described in stark language the difficulty the trier of fact faces where there is significant exaggeration:
When a litigant practices to deceive, whether by deliberate falsehood or gross exaggeration, the court has much difficulty in disentangling the truth from the web of deceit and exaggeration. If, in the course of the disentangling of the web, the court casts aside as untrue something that was indeed true, the litigant has only himself or herself to blame. In this case there has been some deliberate falsehood and some exaggeration.
[54] Defendant’s counsel in their written argument stated with respect to the plaintiff’s continuing injuries:
213. The medical evidence suggests that the Plaintiff has suffered from symptoms that either are caused by, or similar to symptoms of thoracic outlet syndrome. In addition to neck and back pain and tenderness, the Plaintiff suffers from occasional numbness and tingling down her left arm.
214. The Plaintiff’s physical injuries appear [to] cause her some discomfort and pain in her everyday life. However, these injuries did not and do not render her fully disabled. The medical evidence suggests that she is able to function well. This is demonstrated by the fact that the Plaintiff worked full time hours for approximately two and a half years after her return to work.
[55] For the purposes of assessing damages, I will use defendant’s counsel’s description in the foregoing paragraph in order to draw the line, even though I may have been more conservative with respect to my findings of ongoing neck and back pain as opposed to tenderness. I also base my assessment of the plaintiff’s injuries on the totality of evidence, including my findings as to the plaintiff’s credibility at trial without limiting matters to the medical evidence.
VII. THE LAW
(a) Bodily Injury
[56] Under the Montréal Convention, “bodily injury” is not defined. “Bodily injury” has a narrower meaning than “personal injury”, which would include mental injury. Most aspects of the meaning of “bodily injury”, as used in the Montréal Convention, are settled. The relevant aspect, for the purposes of this case, is that damages for mental injury may be recoverable where the mental injury is caused by bodily injury.
[57] As noted above, many aspects of the applicable law are governed by the Unification of Certain Rules for International Carriage by Air, 28 May 1999, 2242 U.N.T.S. 309 (entered into force 4 November 2003) (the “Montréal Convention”). The Carriage by Air Act, R.S.C., 1985, c. C 26 as amended, subject to some qualifications, gives the Montréal Convention the force of law in Canada in relation to any carriage by air to which the provisions of the Montréal Convention apply.
[58] For the case at bar, the key provision is Article 17(1) of the Montréal Convention, which for current purposes reads:
The carrier is liable for damage sustained in case of ... bodily injury of a passenger upon condition only that the accident which caused the ... injury took place on board the aircraft ...
Le transporteur est responsable du préjudice survenu en cas ... de lésion corporelle subie par un passager, par cela seul que l’accident qui a causé ... la lésion s’est produità bord de l’aéronef ...
[59] I note that there is no domestic legislation that serves to define the meaning of the terms of the Montréal Convention, as is found in the Income Tax Conventions Interpretation Act, R.S.C. 1985, c. I-4, which guides interpretation of income tax conventions to which Canada is a party.
[60] On October 14, 1970, Canada ratified the Vienna Convention on the Law of Treaties, 25 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980) (the “Vienna Convention”). The Vienna Convention provides some rules for the interpretation of international treaties, including, in limited circumstances, reference to travaux préparatoires.
[61] Jurisprudence from both Canada and other signatory countries has addressed the meaning of “bodily injury” under the Montréal Convention and the predecessor treaty, the Convention for the Unification of Certain Rules Relating to International Carriage by Air, 12 October 1929, 137 L.N.T.S. 11 (entered into force on 13 February 1933, as amended) (the “Warsaw Convention”). The principle of the common construction of international treaties comes into play with regard to meaning of the term “bodily injury”.
[62] The Warsaw Convention also used the concept of “bodily injury” as opposed to the broader concept of a “personal injury”, as an example, or language such as “bodily or mental injuries”. Despite discussion at the conference leading to the Montréal Convention of language broader than “bodily injury”, the narrower concept was continued in the Montréal Convention.
[63] One illustration of the narrower concept of bodily injury is found in the U.S. Supreme Court decision Eastern Airlines Inc. v. Floyd, 499 U.S. 530 (U.S.S.C. 1991). The court described the facts:
On May 5, 1983, an Eastern Airlines flight departed from Miami, bound for the Bahamas. Shortly after takeoff, one of the plane's three jet engines lost oil pressure. The flight crew shut down the failing engine and turned the plane around to return to Miami. Soon thereafter, the second and third engines failed due to loss of oil pressure. The plane began losing altitude rapidly, and the passengers were informed that the plane would be ditched in the Atlantic Ocean. Fortunately, after a period of descending flight without power, the crew managed to restart an engine and land the plane safely at Miami International Airport.
[64] In Floyd, the plaintiffs sought “recovery for mental or psychic injuries unaccompanied by physical injury or physical manifestation of injury” (p. 533). In ruling against the plaintiffs, the court also considered the authentic French text of the Warsaw Convention (Article 36 provides that the only authentic text is French) and, in particular, the meaning of “lésion corporelle”, holding that in the context of the Warsaw Convention, “lésion corporelle” should be given a narrow reading. The court specifically expressed “no view as to whether passengers can recover for mental injuries that are accompanied by physical injuries” (p. 552).
[65] In Morris v. KLM Royal Dutch Airlines; King v. Bristow Helicopters Ltd., [2002] UKHL 7, the House of Lords considered two separate appeals together concerning the meaning of “bodily injury” as used in the Warsaw Convention.
[66] In Morris, during a long-distance commercial flight, a 15-year-old girl awoke from a nap to find her thigh being caressed by a stranger who was seated next to her. She alleged that, as a result, she suffered a major depressive illness. In his ruling, Lord Hobhouse of Woodborough observed that “the seriousness of the assault lay in its indecency”, but nevertheless found that this assault did not give rise to “bodily injury”. She could not succeed in her claim for damages for psychiatric injury.
[67] In King, the alleged facts were:
On 22 December 1993, King was a passenger on board a helicopter, owned and operated by Bristow Helicopters Ltd. The helicopter took off from a floating platform in the North Sea in poor weather. The helicopter ascended and hovered for a short period, at which point its two engines failed. It descended and landed on the helideck. Smoke engulfed the helicopter; there was panic on board; and passengers feared that the helicopter was about to crash into the sea. The door was opened and the passengers disembarked. The passenger developed post-traumatic stress disorder. As a result of the stress he suffered an onset of peptic ulcer disease.
[68] In King, the House of Lords held that the plaintiff’s claim was confined to his peptic ulcer disease.
[69] In Morris and King, Lord Hobhouse described his approach to the interpretation of the Warsaw Convention:
[147] ... Whilst it is important to have regard to the international consensus upon the understanding of the provisions of international conventions and hence to what the courts in other jurisdictions have had to say about the provision in question, the relevant point for decision always remains: what do the actual words used mean? (Stag Line Ltd v Foscolo. Mango & Co Ltd, [1932] AC 328, the Hague Rules; James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd, [1978] AC 141, CMR,Fotherill v Monarch Airlines Ltd [1981] AC 251, Amended Warsaw; Sidhu v BA, sup, Warsaw.)
[148] Further things follow. First, the words used should receive an objective interpretation. It is equally mistaken to try and find out what the individual delegates thought they were agreeing to as it is to investigate the various domestic laws of the signatory countries. The investigation is equally liable to be based on incomplete or imperfect evidence. It may well be that different delegates may have had different beliefs. The views of one delegate, however distinguished, articulate and well-published, may not represent the views of others. The examination must be an objective one. The disciplined liberty to make use of travaux préparatoires regulates this. It is common ground that in the present case, to quote Lord Reed at 2001 SLT 126, 167, para 56,
“The travaux préparatoires do not support any theory that the signatories to the Warsaw Convention had a specific intention either to include or to exclude liability for psychiatric disorders.”
Therefore, it is the unadorned language of the Article to which attention must be directed. It is again a descent into unprincipled subjectivism to use, as do the Court of Appeal (§§50 and 96) and others have done before them, the absence of travaux préparatoires as a tool of construction. Thus the Court of Appeal say: “We consider that it is highly significant that no mention was made of liability for mental injury [sic] in the course of the negotiations that resulted in the Warsaw Convention.” This is reasoning which speculates about the subjective intentions of the delegates and is not directed to the objective autonomous meaning of the words used. Likewise it is erroneous, in the absence of cogent travaux, to infer that a particular interpretation of a provision is intended from the fact that on a later occasion the Convention was amended without making any change to the provision in question. All it shows is that on the later occasion the parties were content to leave the wording of the provision unaltered. The motives or beliefs of the individual delegates for so doing are irrelevant. Similarly, it is unprincipled to say as the Court of Appeal say also in paragraph 96 that it is “equally significant” that no claim was made for ‘mental injury’ until the 1970s. One can only ask how can it be relevant to the question of the construction of the Convention. In fact there are simple explanations arising from the development of mass passenger air transport, the outbreak of terrorist hijacking and probably developments in United States domestic law.
[149] Secondly it is also mistaken to interpret a convention such as the Warsaw Convention, or the various amended versions of it, as if they were intended to be historical documents frozen in time. They are intended to provide an enduring uniform code which will govern contractual and, where relevant, delictual relationships not just for a finite time but for the future as the transactions to which they apply are entered into. The contracts into which the code is to be incorporated are to be made and will be performed at dates in the future, maybe long into the future. Notionally to relate them back to a supposed state of affairs existing in 1929 is not only wrong but wholly impractical. It leads to the complication and confusion to which I have already referred. It is also destructive of uniformity since when a convention has later been amended, logic would require that one starts the clock again and asks what was in the minds of the delegates at the later conference. It is not necessary in order to understand this point to have regard to the principles applicable to ‘always speaking’ constitutional documents. The principle is more simple. Words have a meaning which does not change but the application of those words to the decision of any question depends on the facts and circumstances of the case in which that question arises. It is the facts and circumstances of the cases that change, not the meaning of the contractual words.
[150] Thirdly, the code involves a division of risk. It strikes a balance. It is wrong to construe it as a code designed to advantage one interest or the other, the carrier or the customer. Like any code of this character, it contains familiar types of provision assisting one interest balanced against others assisting the other interest. For the passenger, a simple criterion of causation by an ‘accident’ is adopted but counterbalanced by strong provisions enabling the carrier to limit his liability. These are not like exemption clauses to be construed against one or other party. The phrase bodily injury simply enters the picture as part of the balanced code regardless of which interest it is thought to assist.
[151] I have elaborated the question of the approach to the construction of Article 17 because, in my view, all the courts below were drawn into an essentially mistaken consideration of material which was nationally based, historical, and subjective. It has resulted in an over-complication of the relevant question. It has necessitated a display of the most impressive scholarship and research but has led to the wrong questions being asked and the wrong answers given.
[70] In my view, Lord Hobhouse’s approach also captures the Vienna Convention’s key rules for the interpretation of international treaties which read:
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
[71] Under the Montréal Convention, part of the “balance” between customer and carrier is the fact that the carrier is strictly liable for compensatory damages up to an amount of 113,100 “Special Drawing Rights” (a term defined by the International Monetary Fund). As of October 25, 2012, 113,100 Special Drawing Rights equaled $172,874.58 (CAD). Under Article 21, a carrier is not liable for compensatory damages in excess of 113,100 Special Drawing Rights if the carrier proves that:
(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or
(b) such damage was solely due to the negligence or other wrongful act or omission of a third party.
[72] Under Article 29, “punitive, exemplary or any other non-compensatory damages” are not recoverable.
[73] In Floyd, the court stated, with respect to the meaning of bodily injury:
In sum, neither the Warsaw Convention itself nor any of the applicable French legal sources demonstrates that “lésion corporelle” should be translated other than as “bodily injury” – a narrow meaning excluding purely mental injuries.
[74] The court’s review of the travaux préparatoires for the Warsaw Convention and other aids to construction did not change its view.
[75] In King and Morris, the House of Lords is consonant with the United States Supreme Court’s view. For example, Lord Nicholls of Birkenhead states that “bodily injury” or “lésion corporelle” means simply “injury to the passenger’s body”. Lord Hobhouse states that “bodily injury” means “a change in some part or parts of the body of the passenger which is sufficiently serious to be described as an injury. It does not include mere emotional upset, such as fear, distress, grief or mental anguish”. On the allegations and pleadings in Kingand Morris, neither plaintiff claimed that their respective psychiatric conditions were the result of physical changes to the brain. Three of the Lords were of the view that such a causal link would constitute a bodily injury under the Warsaw Convention.
[76] In Morris and King, both plaintiffs lost with respect to their respective claims related to psychiatric injury. Neither claim of psychiatric injury related to a bodily injury. However, the plaintiff in King succeeded with respect to his argument that, subject to proof, he could claim for damages for a peptic ulcer if the psychiatric condition caused by the helicopter accident led to the peptic ulcer (a bodily injury).
[77] In the case at bar, the plaintiff suffered bodily injury of a whiplash-type nature. The further question is whether or not emotional distress can be claimed as “damage sustained in case of … bodily injury” as that language is used in Article 17 of the Montréal Convention. The decision of the United States Court of Appeals, Second Circuit, in Ehrlich v. American Airlines 360 F. 3d 366 (App. Ct. 2004) is helpful in addressing this further question.
[78] In Ehrlich, the court describes the accident:
On May 8, 1999, Gary and Marianne Ehrlich boarded American Eagle flight No. 4925 in Baltimore, Maryland. They intended to travel to JFK, where they were scheduled to connect to an American Airlines flight to London. When the flight reached JFK, the plane approached the airport at a high rate of speed, overshot its designated runway, and was abruptly stopped from potentially plunging into Thurston Bay by an arrestor bed. The passengers subsequently evacuated that aircraft by jumping approximately 6 to 8 feet from its doorway.
[79] The Ehrlichs contended that they suffered bodily injuries, such as knee injuries, and mental injuries, such as a fear of flying, nightmares and sleep disturbance.
[80] Ehrlich was governed by the Warsaw Convention. However, the court canvassed the travaux préparatoires in relation to the Montréal Convention to see if any guidance could be obtained in relation to the meaning of “bodily injury”. In this regard, the court found the travaux préparatoires were of no further assistance in determining the meaning of “bodily injury”.
[81] In Ehrlich, the plaintiffs argued that the carrier could be liable under the Warsaw Convention as long as the “mental injury accompanied by physical injury, regardless of whether the two distinct types of injuries shared the causal relationship” (p. 368). The court held that the carrier would be liable “for mental injuries only if they are caused by bodily injuries” (p. 400).
[82] Ehrlich accords with that which is commonly referred to as the “mainstream view”. (See P.S. Dempsey, Aviation Liability Law, 2nd ed. (Markham, Ont.: LexisNexis, 2013) at 16.142). In some cases, the causal link between the bodily injury and the mental injury will be clear. For example, an airline passenger who suffers burns on his or her face as a result of an aircraft fire will undoubtedly suffer mental anguish. So long as the bodily injury is proven, the mental injury proven to have been caused by it will be compensable.
(b) Exclusive Cause of Action
[83] Article 17 of the Montréal Convention represents the exclusive cause of action for a passenger against an air carrier (unless the carrier provides further remedy by contract). Article 29 states that the Montréal Convention provides an exclusive basis for claims. The Saskatchewan Queen’s Bench confirmed this interpretation in Walton v. Mytravel Canada Holdings Inc., 2006 SKQB 231:
[39] Accordingly, since Flight 361 was an international flight to which the Montreal Convention of 1999 applied with respect to all of the defendants, it is clear and obvious to this Court that the sole and exclusive claims that can be advanced by the plaintiffs are claims that must be launched pursuant to Article 17, Paragraph 1, of the Montreal Convention of 1999. In light of that, the plaintiffs' claims outside the ambit of the Montreal Convention of 1999 in negligence, breach of contract, unlawful confinement and the request for punitive damages as outlined in the statement of claim do not disclose a cause of action. [my emphasis]
[84] The United States Supreme Court expressed a similar view in relation to the Warsaw Convention. In the course of holding that the plaintiff did not have a cause of action against the appellant airline outside of Article 17, that court stated in El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (U.S.S.C. 1999) at 171:
[...] to allow passengers to pursue claims under local law when the Convention does not permit recovery could produce several anomalies. Carriers might be exposed to unlimited liability under diverse legal regimes, but would be prevented, under the treaty, from contracting out of such liability. Passengers injured physically in an emergency landing might be subject to the liability caps of the Convention, while those merely traumatized in the same mishap would be free to sue outside of the Convention for potentially unlimited damages. The Court of Appeals’ construction of the Convention would encourage artful pleading by plaintiffs seeking to opt out of the Convention’s liability scheme when local law promised recovery in excess of that prescribed by the treaty. See Potter v. Delta Air Lines, Inc., 98 F. 3d 882, 886 (C.A. 5 1996). Such a reading which scarcely advance the predictability that adherence to the treaty has achieved worldwide.
(c) Damage Sustained
[85] The United States Supreme Court in Zicherman v. Korean Air Lines Co. 516 US 217 (U.S.S.C. 1996) ruled at 223, in considering Article 17 of the Warsaw Convention, that “damage sustained” means “legally cognizable harm” and such harm is determined by domestic law.
[86] I note that the authentic French version of the Montréal Convention uses the words “du préjudice survenu”, rather than the term “du dommage survenu”, which is used in Article 17 of the Warsaw Convention. Generally, “du préjudice survenu” is viewed as providing greater precision than the term “du dommage survenu”, referring specifically to losses that are compensable in a civil action. (See J L Baudouin and P. Deslauriers, La Responsibilité Civile, 7e édition, vol. I (Montréal: Edition Yvon Blais, 2007) at 1 312, D. Gardner, Le Préjudice Corporel 3e édition Montréal (Editions Yvon Blais, 2009) at 3. The authentic texts of the Montréal Convention are English, Arabic, Chinese, French, Russian and Spanish.
VIII. APPLICATION TO THE CASE AT BAR
(a) Non-pecuniary damages
[87] As described above, the plaintiff suffered whiplash-type injuries and emotional distress. As described by the defendants’ counsel, the plaintiff’s injuries “cause her some discomfort and pain in her everyday life”. As of October 18, 2009, she could work full-time and she continued to work full-time for another two years. The defendant suggested that the non-pecuniary damages award should not exceed $60,000 and recommended an award in the range of $40,000 to $60,000.
[88] After reviewing the defendant’s and plaintiff’s cases and positions on quantum, I find that $60,000 would be an appropriate award. I have included in the $60,000 award damages for emotional distress caused by the bodily injuries and her fear of being bumped again, whether on a plane or not. If I were to separate the award for emotional distress, it would be relatively small (less than $2,000) because the plaintiff has not proven on a balance of probabilities that the distress existed as of the date of trial. I have not compensated the plaintiff for a fear of flying because there is not a sufficient causal link between such a fear and the whiplash-type injury.
[89] The plaintiff claimed $3,351 for loss of promised enjoyment of holiday based on Jarvis v. Swan Tours Ltd., [1972] 2 W.C.R. 954 (Eng. C.A.) and the subsequent line of authorities. This $3,351 claim was in addition to the special damages claimed for the cost of the vacation. In my view, the Swan Tours authorities are not applicable to the case at bar and I would not make an award for spoiled vacation damages. The claim is based on the Montréal Convention and not a “peace of mind” contract or a contract with the object to “secure a particular psychological benefit” (Fidler v. Sun Life Insurance, 2006 SCC 30 at para. 45). Nor is the loss of promised enjoyment a “damage sustained”, as used in Article 17 of the Montréal Convention. This is consistent with the United States Court of Appeals, Fifth Circuit, obiter dictum, in Lee v. American Airlines, 355 F. 3d 386 (App. Ct. 2004), that “so-called inconvenience damages are not easily quantifiable and do not result in real economic loss”.
(b) Past Wage Loss
[90] As noted above, liability was admitted at trial. Past wage loss is a damage sustained within the meaning of Article 17 of the Montréal Convention. The plaintiff’s inability to work was caused by the whiplash-type injuries she suffered. The plaintiff is awarded past wage loss from the date of the accident to October 18, 2009, when she returned to work full time. I am not confident that I have the correct calculation of the amount for this period. If counsel cannot agree on the amount, they are at liberty to apply.
(c) Future Earning Capacity
[91] I have found that the plaintiff could work and could have continued to work full time after she returned to full-time work in October 2009. As such, I make no award for loss of future earning capacity.
(d) Cost of Future Care
[92] In argument, defendant’s counsel suggested that a pain program would be suitable based on the medical evidence. The plaintiff has estimated the cost of a pain program to be $11,522. As noted above, the defendant has acknowledged that the plaintiff has “some discomfort and pain in her everyday life”. Such discomfort and pain may require some medications, some massage therapy and an occupational therapist. The Court’s total award for the cost of future care is $20,000. The futurity has required a measure of a guess in determining the award.
(e) Special Damages
[93] The Court will award all of the itemized special damages for physiotherapy and medications listed by the plaintiff up to the end of October 2009, the month the plaintiff returned to work. This totals $2,726.
[94] For the period from November 2009 to September 30, 2012 (the date of the last item claimed), the Court will award special damages by excluding $207.50 for a seat upgrade, but including the full amount of the charge of $1,700 for an MRI, as well as allowing two-thirds of the remainder, being $3,785, as an approximation of the expenses reasonably related to the accident. This totals $5,485.
[95] As part of her claim for special damages, the plaintiff claims for the cost of the holiday (for the plaintiff and her husband) in the amount of $3,144. The pain and suffering experienced by the plaintiff during the holiday is a foreseeable damage sustained as a result of the whiplash-type injury. This aspect has been included in the non-pecuniary award.
[96] The recovery of the actual cost of the vacation falls within Article 17 of the Montréal Convention. Justice Hall, writing for the majority of our Court of Appeal in Hay v. Hofmann, 1999 BCCA 26, overturned an award of special damages for lost vacation (para. 73). The trial judge had compensated the respondent for a complimentary vacation that the respondent had been offered by a tour company after the respondent and his wife had taken an unsatisfactory vacation arranged by the tour company. As a result of the injury suffered by the respondent in the accident, he could not undertake the complimentary vacation.
[97] Justice Hall found that the trial judge was in error to have concluded that this loss could be quantified in a dollar amount by way of the cost of the original vacation. No sum of money had been lost and no sum of money was required to be expended. Justice Hall found instead this loss was better categorized under the head of non-pecuniary damages and he ascribed this loss at a lesser value as a lost opportunity. From this reasoning, in my view, it is safe to infer that a lost vacation that had been paid for would be a quantifiable loss that could be compensated for under the head of special damages. When spouses plan a holiday together and one suffers bodily injury and the other does not, the full amount should be viewed as the damage sustained. For what couple, after planning a holiday together, would each not want to experience that holiday together?
[98] The total special damage award is $11,355.
IX. CONCLUSION
[99] The plaintiff is awarded $60,000 as non-pecuniary damages, $20,000 for the cost of future care, and $11,355 in special damages. She is also awarded her past income loss from the date of the accident until her return to full-time employment on October 18, 2009. As noted above, if counsel cannot agree on the amount, they are at liberty to apply.
X. COSTS
[100] The parties are at liberty to make submissions on costs.
Funt J.
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