Executive Summary: Key Legal and Evidentiary Issues

• Causation between the motor vehicle accident and the plaintiff’s ongoing vestibular, migraine, neck pain, and psychological symptoms was central to the dispute.

• The admissibility and qualifications of expert witnesses, particularly regarding vestibular disorders and migraines, were challenged and ruled upon.

• Quantification of damages for past and future loss of earning capacity, non-pecuniary damages, and special damages required detailed analysis of medical and economic evidence.

• The plaintiff’s efforts to mitigate her damages, including whether she unreasonably declined recommended treatments, were scrutinized.

• The impact of pre-existing and intervening medical conditions on the plaintiff’s current disabilities was examined.

• The appropriateness and calculation of costs for future care, housekeeping, transportation, and aids to daily living were assessed.

Facts of the case

The plaintiff, Dacia Holley Caney (formerly Dacia Zavitz), claimed damages for injuries suffered in a motor vehicle accident on August 1, 2016. She was a passenger in a car driven by her then-husband, Stefan Caney. A deer ran in front of their car, causing it to stop without collision. The car behind, driven by Derek Caney and rented from Hertz Canada, struck the plaintiff’s vehicle. This was followed by a second collision when a third car, driven by Caryn Lee Fischer, hit the second car, which then struck the plaintiff’s car again. The plaintiff’s head accelerated forward and then back to the headrest in both collisions. The action was discontinued against Stefan Caney. Liability was admitted by the remaining defendants, but causation and damages were denied.

Medical and evidentiary background

Ms. Zavitz, a 43-year-old physiotherapist and mother of two, described ongoing symptoms since the accident, including vestibular symptoms (dizziness, imbalance, nausea, disorientation), migraines, neck pain, and cognitive fatigue. She also developed chronic adjustment disorder with anxiety features. The evidence at trial included testimony from lay witnesses, medical experts in neuro-ophthalmology, neurophysiology, physical medicine and rehabilitation, neurology, psychiatry, family medicine, occupational therapy, economists, and a forensic accountant. The defense emphasized other health events, such as a peroneal nerve injury, rheumatoid arthritis, pregnancy complications, and an elbow infection, but the court found no evidence these contributed to her current disabilities. The court also addressed objections to the admissibility and qualifications of expert witnesses, particularly Dr. Mallinson, a neurophysiologist.

Key legal and evidentiary issues

The main issues for trial were: (a) what symptoms and injuries were impacting the plaintiff; (b) whether the accident caused these symptoms and injuries; and (c) what losses the plaintiff faced as a result. The court found that Ms. Zavitz’s vestibular symptoms with associated migraines, neck pain with associated headaches, and adjustment disorder with anxiety features were caused by the accident. The court accepted the qualifications of Dr. Mallinson to provide opinion evidence on vestibular disorders, despite objections from the defense.

Assessment of damages and losses

The court found that the plaintiff’s injuries were caused by the accident and significantly impacted her life and work. Ms. Zavitz was limited to working 25% of a full-time schedule as a physiotherapist. The court determined that her symptoms were permanent, with no real and substantial possibility of significant improvement. The court found that Ms. Zavitz had taken all reasonable steps to mitigate her damages, including pursuing recommended treatments and adapting her work and daily life. The court rejected arguments that her pre-existing or subsequent health conditions contributed to her current disabilities.

Calculation of damages

The court awarded the following damages to the plaintiff:

• Non-pecuniary damages: $155,000

• Past loss of earning capacity: $274,757

• Future loss of earning capacity: $3,489,807

• Future care costs: $386,798 (including medication, therapies, housekeeping capacity, transportation, and aids to daily living and ergonomic equipment)

• Special damages: $21,332 (including medication, therapy, housekeeping, vision care, hospital and ambulance expenses)

Conclusion and outcome

The court ruled in favor of the plaintiff, Dacia Holley Caney. She was awarded a total of $4,327,694 in damages, plus costs to be assessed on Scale B of Appendix B of the Supreme Court Civil Rules, unless otherwise settled between the parties. The judgment recognized the significant and permanent impact of the accident on her professional and personal life, and held the defendants fully liable for her losses.