Suffering from Invisible Pain
Suffering from Invisible Pain. Sixteen year old Elisha Singh was travelling with her mother and father when she and her parents were hit while crossing the intersection at 92nd Avenue and 152nd Street in Surrey. It was boxing day and the family was returning home very early in the morning. Elisha was sleeping in the back of the car and awoke to the jarring accident. When the car stopped spinning she looked around for her parents and found they were in the front seat. Elisha’s mother was in shock and had a hard time moving, while Elisha and her father were afraid by generally OK.
About 15 minutes after the accident, the paramedics arrived and took Elisha and her father out of the car. About 20 minutes after that, her mother was able to be removed from the car.
Elisha’s life was never the same again.
Before the accident, Elisha was happy and carefree. “She was bubbly and talkative”, says Madam Justice Sharma. “She enjoyed school and got good grades. She was in good physical and mental health. She played volleyball, basketball and floor hockey.” Elisha had just gotten her L, she worked part time at McDonalds and she and her best friend were close.
After the accident, Elisha was tired, and slept quite a bit. She had a hard time sleeping because she worried about it happening again. Elisha stopped hanging out with friends, she stopped trying to drive, she took 6 months off work and 2 weeks off school.
Justice Sharma found that Elisha suffered from anxiety about being reinjured. She found that once Elisha returned to school, she would walk down hallways with friends on either side to act as a shield so she was not bumped or jostled by other students. She stopped playing sports because of the pain.
Elisha also had troubles sleeping and she suffered from nightmares every night which would on occasion be so bad they would wake her up completely and have her reliving the accident. She worried about her parents and brother being hurt in another accident.
Eventually Elisha started going to physio therapy which she said would help with her anxiety, but she continued to worry about her family members’ safety. It was not until approximately 3 years after the accident that she was recommended to get counselling for her anxiety.
Justice Sharma describes the effect of Elisha’s anxiety beginning at paragraph 33, stating
 Elisha’s anxiety has resulted in a continuing fear of driving and being a passenger. For the first two weeks after the accident, being a passenger in a car was extremely upsetting and very difficult for Elisha. Her father testified that in the beginning even going over a pothole would cause her to scream. For about three months she only travelled by car with her mother to attend medical appointments.
 For a long time, Elisha was uncomfortable getting into a vehicle driven by anyone other than her mother. Even now, she is only comfortable if her mother, brother or boyfriend is driving, but even this remains an ordeal. She recalled only two times she went into a car driven by someone other than her mother in the first years after the accident. Once she went with a friend named Karen, but Elisha was very nervous and felt Karen was driving too fast and had the music too loud. Elisha perceived Karen was annoyed with Elisha’s reaction. The other time was with a former boyfriend whose driving Elisha also expressed concerns about. He did not like that and did not drive her again.
 Her mother still drives her to and from work, although occasionally her brother may do so if her mother is busy. Both described Elisha as very anxious and nervous as a passenger. Her brother described that in the time after the accident, Elisha would cry out whenever there was a loud noise. She would poke or tug at him if there was a car in their vicinity or she thought he was driving too fast. According to him, this behaviour has improved somewhat, although it is a function of her controlling it rather than the anxiety diminishing. He says this because he notices that her hands still move to poke or tug at him but she stops herself. Her father described very similar behaviour.
 Her learner’s license lapsed because she simply could not bring herself to drive a car in the two years after the accident. In fact she did not return to driving until recently. With her family’s and boyfriend’s encouragement, Elisha got her learner’s license again in January 2015, but that was only a written test. Upon getting that license, she avoided practicing driving for about three months because she still felt fearful. She did eventually practice driving with her mother. They went back to the parking lot of her father’s worksite. Elisha was extremely nervous and could not turn the vehicle at first. She was apprehensive about applying the accelerator. She was extremely anxious and easily became very frustrated which tended to cause her to do something wrong, thus compounding the initial anxiety. She has only practiced driving with her mother a few times.
 Elisha’s mother arranged for some driving lessons with Mr. Malhi, which took place in March, April and June 2015. He testified at trial that he owns his own company and has been teaching new drivers for about 12 years. He teaches about 100 students every year, working seven days a week and teaching five to six lessons each day. The car used in those lessons has a dual control system such that there is a brake, accelerator and rear view mirror on the passenger side of the vehicle to allow him to control the speed of the vehicle if needed.
 Mr. Malhi testified for the defendant and was defensive during cross-examination. He gave the impression that he believed he was being blamed for Elisha not earning her driver’s license. He admitted that he does not remember any details of the lessons with Elisha and his testimony was based on what he assumed happened rather than specific recollections. I find his only true recollections about Elisha are that he taught her, he had to call to arrange subsequent lessons which were far apart and he had difficulty getting paid. No other aspect of his testimony was reliable. In particular, I discount entirely his testimony in chief where he claimed Elisha was “like any other driver” or was a confident driver. During his cross-examination he admitted he made no effort to notice if a student was nervous and it was “silly” of counsel to ask whether he did.
 I find the reliable portion of Mr. Malhi’s testimony supports the plaintiff’s case. It buttresses her testimony that even though she had her “L” license, she remained anxious and fearful of driving. That would explain why the lessons were so far apart and why Mr. Malhi had to follow up to arrange them.
 The anxiety surrounding driving and being in vehicles has had a negative impact on Elisha’s social life. When she returned to school in grade 11 and 12, many of her friends were getting their drivers’ licenses. They would drive with each other to events. Elisha’s anxiety about being a passenger prevented her from joining in. Not only was she missing out on activities, her friends treated her differently and were no longer interested in spending time with her. Even her friendship with Preet suffered after Preet got her driver’s license. They have not seen each other for about three years.
 Elisha has a boyfriend that she started seeing in January 2015. He has a vehicle and she has gone driving with him. She feels this is a serious relationship and she trusts him, but says she still cries when she is a passenger with him because of her anxiety. They do not go out a lot so she does not go driving with him very often. Primarily they spend time at her house or at his house. Since the accident, she recalls being outside of the Surrey/Burnaby area only one time; her boyfriend drove her to Vancouver. She found that a stressful experience.
The lawyers for ICBC argued that Justice Sharma should not accept what Elisha had to say about her anxiety. Specifically, Justice Sharma points out some common misunderstandings about anxiety generally,
 The defendant submits I should be cautious in accepting Elisha’s evidence because of certain inconsistencies. The defendant questions Elisha’s statement that she buries herself in her work as a way to avoid driving. He pointed to some discovery evidence and cross-examination testimony where she said to others that she did not have time to go driving. The defendant’s position is that her “decision” to work long hours is what is holding her back from learning to drive.
 This submission is based on a fundamental misunderstanding of anxiety disorder. As confirmed by Dr. Patton, avoidance is a classic symptom of anxiety. While it is true she “decided” or voluntarily worked longer hours than she needed to, that led to her exhaustion and limited the time she had when she felt comfortable practicing her driving (she did not want to practice or have a lesson on a day she was working). This avoidance behaviour is a manifestation of her anxiety.
 The defendant also points out that she took a trip to Edmonton as part of her training at McDonald’s, which involved her being a passenger in a vehicle driven by someone she did not know because she took a cab from the airport. The defendant submitted her “ability” to do that meant that she is simply avoiding exposing herself to situations which could lead to her improvement.
 This too is based on a misperception about anxiety. That training session was not something that she had a choice about if she wanted to get a promotion. Therefore she had to endure it, but she did so with considerable anxiety. Again, Dr. Patton explained that people avoid anxiety-inducing activities as much as they can but they are not physically incapable of doing those things. If anything, I find the fact that Elisha did not avoid the trip despite her existing anxiety about being a passenger to be a positive signal of her genuine attempt to mitigate her losses by doing things to improve her employment.
 The defendant’s position implicitly argues that if Elisha just tried harder, her anxiety would have improved sooner. These submissions are premised on a fundamental misunderstanding of anxiety disorder as was explained in, among other places, Dr. Patton’s evidence. Avoidance behaviour in this context is not a signal that a patient is malingering or exaggerating. It is a behavioural consequence of having anxiety disorder. Rather than exaggerating, both Dr. Klubben and Dr. Koch were of the view that Elisha under-estimates her anxiety.
At the end of the day, Justice Sharma found that Elisha has suffered some life changes for the worse that came from her anxiety. She awarded Elisha $100,000 for non-pecuniary damages, $40,000 for future loss of income, and $15,000 for cost of future care.