IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140225

Docket: M105282

Registry:
Vancouver

Between:

Joseph Chou-Hsiug
Liu

Plaintiff

And

Robert Laurent
Bourget, John Doe One, John Doe Two and

Insurance Corporation
of British Columbia

Defendants

And:

Insurance
Corporation of British Columbia

Third
Party

–
and –

Docket: M105283

Registry:
Vancouver

Between:

Mei-Chen Cheng
also known as May Cheng

Plaintiff

And

Robert Laurent
Bourget, John Doe One, John Doe Two and
Insurance Corporation of British Columbia

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Skolrood

Reasons for Judgment

Introduction

[1]            
This action involves claims by
Joseph Chou-Hsiug Liu (“Mr. Liu”) and Mei-Chen Cheng also known as May Cheng (“Ms.
Cheng”) for damages for personal injuries suffered in a motor vehicle accident
that occurred on December 18, 2008 (the “accident”).

The
Accident

[2]            
Mr. Liu and Ms. Cheng are spouses
(now separated). Mr. Liu was the driver of a Geo Tracker sport utility vehicle
and Ms. Cheng was a front seat passenger. Their two children were seated in the
rear. Mr. Liu and Ms. Cheng were travelling south on Highway 99 when they were
struck by a Ford F-150 truck driven by the defendant Robert Bourget
(“Bourget”). The force of the collision pushed Mr. Liu and Ms. Cheng’s vehicle
into the concrete divider and caused the front seat air bags to deploy.
Photographs entered into evidence showed significant damage to their vehicle.

[3]            
Bourget did not stop at the
accident but continued south on Highway 99. He was followed by a witness who
saw him strike two other vehicles. Bourget drove to his home in Surrey where he
was later arrested by the RCMP. Bourget was ultimately charged and convicted of
impaired driving.

[4]            
The Insurance Corporation of
British Columbia (“ICBC”) denied insurance coverage to Bourget and appears in
the litigation as a third party pursuant to section 77(3) of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231. Bourget did not appear or
otherwise take any role in the trial.

[5]            
In addition to claiming damages
for the physical injuries suffered in the accident, both Ms. Liu and Ms. Cheng
claim that they suffered significant emotional distress. They also claim that
the effects of the accident led to the breakdown of their marriage, caused them
both significant income loss and additional expense, and resulted in them
selling a commercial property at below market value, all of which form part of
their damages claim.

Background

[6]            
Given the nature of the claims
advanced by both Mr. Liu and Ms. Cheng, it is necessary to review the history
of their life together in some detail.

[7]            
Although Ms. Cheng speaks and
understands some English, she gave her evidence through a Mandarin interpreter.

[8]            
Mr. Liu understands and speaks English,
albeit with some difficulty. He did not use an interpreter for his testimony.

[9]            
Ms. Cheng was born in Taiwan on
November 6, 1959. She was raised and educated in Taiwan. In 1984, she received
a law degree but never practised as a lawyer. From 1984 -1989 she worked in a
daycare.

[10]        
Mr. Liu was born in Taiwan on
March 1, 1953.

[11]        
He is an accountant having
obtained his Certified General Accountant (“CGA”) designation in or around
1994. He is also a Chartered Professional Accountant (“CPA”) which is an
American designation that he received in 1989. Mr. Liu also obtained a
Chartered Financial Planner designation in 1999.

[12]        
Mr. Liu went to the Unites States
in the 1980’s and obtained a masters’ degree from Connecticut State University.
He worked as a CPA on Long Island for a period of time then returned to Taiwan
in 1989.

[13]        
Upon returning to Taiwan, Mr. Liu
taught accounting at a university and joined an accounting firm.

[14]        
Ms. Cheng and Mr. Liu met in 1989
and were married shortly thereafter in January of 1990.

[15]        
In August of 1990, Mr. Liu left
Taiwan and moved to Toronto. Ms. Cheng followed him to Toronto in November of
1990. Initially, Mr. Liu did temporary work, essentially whatever he could
find. For example, for a period he worked for CIBC processing cheques at night.
Mr. Liu also worked on improving his English. He attended the University of
Toronto for a course on how to teach English in order to improve his language
skills.

[16]        
He later did some work for the
Ontario government then went to work for a credit union.

[17]        
In 1992, Ms. Cheng and Mr. Liu’s
first child, a daughter, was born. In September of 1992, Ms. Cheng was accepted
into the early childhood education program at George Brown College. She
continued in that program from January to June of 1993 but she did not return
after the summer break.

[18]        
At some point during the summer of
1993, there was an incident in the marriage that involved the police. According
to Ms. Cheng, Mr. Liu’s sister had come to stay with them, bringing her two
young daughters. The sister was often disparaging of Ms. Cheng’s efforts as a
wife and mother which led to tension in the home. This culminated in an
argument and the police were called. Ms. Cheng said that Mr. Liu left the
family home with his sister but returned one week later when his sister
returned to Taiwan.

[19]        
Mr. Liu’s evidence about this
incident was that he and Ms. Cheng had an argument that involved physical
interaction and Mr. Liu ended up calling the police. Mr. Liu said that he
called the police because they were getting emotional and he was worried
because he was stronger than Ms. Cheng and he did not want things to get out of
hand. Mr. Liu was vague about the details of the incident but agreed that it
occurred when his sister was visiting them from Taiwan.

[20]        
Apparently some elders from their
church got involved and suggested that Ms. Cheng go to Taiwan for a while to
help things cool down. While Ms. Cheng was away, Mr. Liu moved out of their
house which he says was also at the suggestion of the elders.

[21]        
Ms. Cheng and Mr. Liu remained
separated throughout 1994 but stayed in close contact. Ms. Cheng says they
would speak by phone several times per week and Mr. Liu would come by to visit
their daughter once a week. Also in 1994, Ms. Cheng returned to the early
childhood education program at George Brown College.

[22]        
In December of 1994, Mr. Liu moved
to Vancouver. He had struggled finding good work in Toronto and thought that
Vancouver offered him better opportunities. When Mr. Liu arrived in Vancouver
he did not know anyone and he had only $2,000.00 to his name.

[23]        
During his first two years in
Vancouver, Mr. Liu initially worked for H & R Block and then he rented an
office and opened his own accounting practice. For much of that time he says he
lived in his office, sleeping under his desk.

[24]        
Ms. Cheng remained in Toronto
until December 1996. Throughout 1995 and 1996, she completed her early childhood
education courses and did a practicum. She also worked part time at a
university daycare. She says that during this time period, Mr. Liu did not
provide any financial support to her or their daughter, but that they got by on
government assistance and her part-time daycare wages.

[25]        
Ms. Cheng and their daughter moved
to Vancouver in 1996. Mr. Liu said that although they had been separated, the
plan was that Ms. Cheng and their daughter would join him in Vancouver once Ms.
Cheng had finished her early childhood education course. Ms. Cheng and the
child did not immediately move in with Mr. Liu but rather obtained their own
accommodation.

[26]        
In 1997, Ms. Cheng started
assisting Mr. Liu at his office and in August of that year, she and their
daughter moved back in with Mr. Liu.

[27]        
In June of 1998, the family moved
in to a rental house in Richmond where Ms. Cheng also opened a daycare. Mr. Liu
continued to work in his accounting practice where Ms. Cheng would assist him
on weekends. This continued through 1999 and 2000.

[28]        
In 2001, their son was born. At
some point in early 2001, there was another incident in the marriage that again
involved the police. According to Ms. Cheng, Mr. Liu’s sister’s daughter had
come to stay with them to learn English but after four months Ms. Cheng found
it to be too difficult to run the daycare, look after her own children and care
for her niece. This led to a confrontation between Ms. Cheng and Mr. Liu and to
Mr. Liu calling the police. Mr. Liu again left the family home but returned
after one week.

[29]        
In June of 2001, the family moved
to a rental house on Ontario street in Vancouver and Ms. Cheng continued her
daycare there.

[30]        
In January of 2002, they purchased
a house on west 59th avenue in Vancouver. The family moved into the house and Ms.
Cheng operated her daycare out of the house.

[31]        
Ms. Cheng continued to operate the
daycare until July of 2003 when she obtained her real estate licence and closed
the daycare. According to Ms. Cheng, she and Mr. Liu were interested in
investing in real estate and she thought becoming a realtor was a good idea.

[32]        
In November 2004, Ms. Cheng and Mr.
Liu sold the 59th avenue property and purchased a commercial property located
on west 4th avenue in Vancouver. The intent was that Mr. Liu would operate his
accounting practice out of the front part of the property and the family would
live in the back. According to Ms. Cheng, this is quite common in Taiwanese
culture.

[33]        
The west 4th property was
purchased through a holding company, Formosa Investments Ltd. (“Formosa”).

[34]        
Mr. Liu, or Formosa, paid $138,000 for the west 4th property. They had
sold the west 59th avenue house and had about $100,000 from that sale and Mr.
Liu says he had another $120,000 saved.

[35]        
In 2005, they bought a second commercial property on Odlin Crescent in
Richmond for $55,000.00. Mr. Liu said that the price was good and they bought
it because Ms. Cheng was thinking of developing an education centre and the
property would work for that purpose.

[36]        
In October 2008, they bought a third property, a recreational property in
Washington State, which they often used on weekends.

[37]        
Mr. Liu said that at the time just prior to the accident, their
financial situation was good. They owned the three properties free and clear
and had minimal debt. Mr. Liu also said that his accounting business was going
well and that he had reached the point where he was considering hiring some
full time help.

[38]        
Ms. Cheng testified that from 2005 through until the time of the
accident in December 2008, things were going well for her, Mr. Liu and their
family. Ms. Cheng continued to work as a realtor and Mr. Liu continued to build
his accounting practice. During their free time, the family would regularly go
for walks to Jericho Beach and on several occasions they travelled to Banff in
the summer. Ms. Cheng testified that her relationship with Mr. Liu was happy
during this period of time and that their financial situation was good.

[39]        
As noted, the accident occurred on December 18, 2008. Mr. Liu was
driving their Geo Tracker vehicle south on Highway 99. Ms. Cheng was in the
passenger seat, their son was behind her and their daughter was behind Mr. Liu.
They were on their way to Washington State.

[40]        
Ms. Cheng testified that she saw a black pick-up truck coming towards
them and then she blacked out. She woke up when she heard her daughter
screaming. She says that she felt burning on her face and pain in her chest due
to the seat belt. She also had neck pain and she could not open her jaw.

[41]        
Mr. Liu testified that they were travelling at about 80 km/hour when he
saw the other vehicle appear suddenly in front of them. The vehicle struck the
front corner of the Tracker causing it in turn to strike the concrete meridian.
Mr. Liu described the force of the impact as “huge.” Mr. Liu called 911 and the
operator told them to stay in the vehicle until an ambulance arrived. The
entire family was subsequently taken to Delta Hospital.

Effects of the Accident – Ms. Cheng

[42]        
Ms. Cheng says she went to see her family doctor the day after the accident.
The problems she complained of as a result of the accident were:

a)    pain and
abrasion to her face

b)    neck pain

c)     jaw pain

d)    pain and bruises
to both arms

e)    back pain

f)      sleep
problems

g)    memory problems

h)    fear of driving

i)       general
fear and anxiety

j)      eyes-tearing
and “floaters”

[43]        
Ms. Cheng says that the facial pain and chest pain resolved after about
three months although she occasionally still experiences pain in her face, for
example when it is cold outside.

[44]        
She says that her back pain has not resolved entirely and that every two
weeks or so she experiences a stabbing pain in her back that lasts for a day or
two.

[45]        
She also still has jaw pain which she says is always there. She now only
eats soft food as chewing anything hard causes too much pain.

[46]        
She says that she continues to have sleep issues. If she wakes during
the night, she says that she cannot get back to sleep. Ms. Cheng says she only
sleeps two to three hours per night.

[47]        
Prior to the accident, Ms. Cheng used to drive regularly as part of her
real estate business. However, since the accident she said she has a phobia
about driving. As soon as she gets out of the back alley onto any sort of major
road, her hands and feet shake and she panics. She has not driven since early
2010.

[48]        
Following the accident, Ms. Cheng said that she was very irritable and
tired all of the time due to her pain. She would get very emotional and as a
result she and Mr. Liu argued frequently. Mr. Liu was also bad tempered and
always very tired. This caused considerable unhappiness in the family and Ms.
Cheng and Mr. Liu therefore decided to separate in 2009. They have not
reconciled although they remain on good terms. Initially, both children lived
with Ms. Cheng but in 2010 their daughter moved in with Mr. Liu while attending
Simon Fraser University.

[49]        
In April 2010, Mr. Liu attempted suicide and was hospitalized overnight
at Vancouver General Hospital.

[50]        
Beginning in November of 2010, Ms. Cheng started counselling with a
psychologist, Tacky Chan, who she has continued to see. The counselling sessions
have helped with her depression but not with her ongoing fear of driving.

[51]        
In February of 2013 they sold the Odlin Crescent property because Ms.
Cheng said they needed the money.

[52]        
Ms. Cheng said that she has not worked since the accident. She currently
lives in an apartment with her son and Mr. Liu again lives in an apartment with
their daughter. Ms. Cheng said she supports herself largely using credit cards.

[53]        
Ms. Cheng was cross examined at length about problems in the marriage
dating back to its beginning. She tended to downplay any problems other than
the two incidents in which the police were called, which she characterized as
two isolated incidents in 23 years of marriage. She said that prior to the
accident, she and Mr. Liu were happy and that things were going well for the
family.

[54]        
It was put to Ms. Cheng that when her and Mr. Liu’s incomes are combined,
they were essentially earning less than minimum wage and that this caused
stress and led to many arguments between them. It was also suggested that the
reason the family moved into the west 4th property is that they could not
afford to live elsewhere.

[55]        
Ms. Cheng agreed that they did not have a lot of money but again denied
that this was a cause of problems in their marriage. She agreed that one reason
for moving into the west 4th property was to save money but then said again
that such an arrangement was common in Taiwanese culture.

[56]        
It was put to Ms. Cheng that her symptoms of depression did not appear
until after Mr. Liu’s suicide attempt. She says that she did not really
understand the symptoms of depression and therefore did not appreciate that she
was in fact depressed much earlier following the accident.

[57]        
Ms. Cheng was taken to records suggesting that she had jaw problems
prior to the accident, specifically difficulty opening her jaw. It was also put
to her that immediately following the accident, she did not complain of jaw
pain or difficulty opening her mouth.

[58]        
Ms. Cheng was questioned about work she did after the accident as a
realtor. For example, she was the listing agent for another property located
adjacent to their Odlin Crescent property that was owned by Mr. Liu’s client,
although that property did not sell. She agreed that she also represented a
commercial property owner in a dispute with a tenant over rent. The owner
wanted to increase rent but at the same time he needed to keep the tenant as it
was a term of his mortgage that the property remain leased. Ms. Cheng agreed
that she negotiated a successful resolution. This occurred in July or August of
2010.

Effects of the Accident – Mr. Liu

[59]        
Mr. Liu said that prior to the accident, he was generally in good health
apart from an issue with high blood pressure. He had no physical problems and his
emotional health was good.

[60]        
Mr. Liu testified that following the accident, he experienced pain in
his neck, low back, face and left leg.

[61]        
He said that he was in considerable pain for the first two weeks then
things started to get better and he felt that he had largely recovered within three
to six months. Then one day he was out walking and suddenly developed a pain in
his chest and in his right leg.

[62]        
Mr. Liu said that emotionally he felt “weird” after the accident.

[63]        
As noted, in June of 2009, approximately six months after the accident, Mr.
Liu and Ms. Cheng separated. Mr. Liu said they were arguing a lot. Ms. Cheng
was complaining a lot about her pain and she could not do many of the things
that she normally did, such as pick up their kids from school. He was busy at
work during tax season and found it stressful to work and do many of the things
that Ms. Cheng normally did. Mr. Liu said that they decided it would be best
for the children if they separated.

[64]        
Mr. Liu said that towards the end of 2009, his emotional condition
deteriorated. He had particular difficulty around the one year anniversary of
the accident. He said he was having difficulty sleeping which in turn was
making it difficult for him to work.

[65]        
Things continued to get worse in early 2010. Mr. Liu testified that he
thought he was going to die. He was in pain and felt hopeless. He began to turn
clients away from his accounting business.

[66]        
In April 2010 Mr. Liu attempted suicide by sniffing gas. He said that
his depression had worsened and he was worried that if he did not die things would
get worse, for example he would lose his accounting licence. Mr. Liu was taken
to UBC Hospital and then was sent to VGH where he spent the night.

[67]        
Mr. Liu said that he found it difficult to work in 2010. He was
continuing to have pain in his back and he had difficulty concentrating. In
2010 he started to turn away some clients.

[68]        
He continued to do some work through 2011, 2012 and 2013 but his income
fell during that period as he did less work. He was working out of the Odlin
Crescent property, although that was subsequently sold in early 2013. Mr. Liu
said he now works out of his home.

[69]        
In terms of his current condition, he said he sleeps better now although
he occasionally gets nervous which interrupts his sleep. Emotionally he said he
is much better, although he still has difficulty discussing the accident, and
indeed he broke into tears several times on the stand when the topic of the
accident came up. He says he still experiences back pain nearly every day.

[70]        
He is not sure about the future of his accounting practice. He said he
still has concentration problems so he does not see his practice returning to
how it was before the accident.

[71]        
In cross-examination, Mr. Liu agreed that he and Ms. Cheng have had
communication problems from the beginning of their marriage. He said that they
still have communication problems, but these problems have improved. He agreed
that during the early years together in Toronto they had lots of arguments and
that they continued to argue frequently when Ms. Cheng came to Vancouver.

[72]        
According to Mr. Liu, the Vancouver argument that resulted in the police
being called related to finding a new place for Ms. Cheng’s daycare. Ms. Cheng
said it was Mr. Liu’s fault they had not found a new space. After the
altercation, Ms. Cheng had threatened to take him to court so Mr. Liu went to
his family doctor to document his injuries. Mr. Liu agreed that he and Ms.
Cheng had had other physical altercations and that she would often threaten to
take him to court or report him to the police.

[73]        
Mr. Liu agreed that after the accident he continued to work, although he
noted that the accident occurred shortly before Christmas so it wasn’t busy. However,
he continued to work through the following tax season.

[74]        
With respect to his business, Mr. Liu admitted that for his CGA licence,
the first 10 audits that he did had to be supervised by a mentor. From
2004-2009, he still had not completed the necessary 10 audits or review
assignments.

Sale of the West 4th Property

[75]        
In late 2009, Ms. Cheng and Mr. Liu decided to list the west 4th
property for sale. Ms. Cheng had done some research that suggested that they
could sell it for close to $500,000, which would provide them with a very good
return on their initial purchase price of $138,000. There was some interest in
December 2009 and January 2010 but no firm offers.

[76]        
By January 2010, Mr. Liu’s emotional health had deteriorated and he was
concerned that if they did not sell the property before he died, they would
lose it for tax reasons. Ms. Cheng and Mr. Liu therefore lowered the asking
price for the property. The property was ultimately sold for $325,000 which Ms.
Cheng said was an unduly low price brought about by Mr. Liu’s condition.

[77]        
Ms. Cheng agreed that the property was listed for 80 days at $378,000
with no offers received during that period. She also said that she did her best
to protect Mr. Liu’s interest throughout the process of selling the west 4th property
and that no steps have subsequently been taken to try to set aside the sale of
the property.

Credibility

[78]        
Having reviewed the evidence of each of Ms. Cheng and Mr. Liu, it is
useful to comment briefly on their credibility.

[79]        
Keeping in mind the inherent difficulties of receiving testimony through
an interpreter, I did not find Ms. Cheng to be a particularly credible witness.
When confronted with inconsistencies in her evidence, for example between her
testimony at trial and on discovery, she typically blamed the inconsistency on
a problem in interpretation or on the fact that her depression made it
difficult for her to concentrate and remember details. However, on points that
she perceived to be useful to her position, she was able to provide extensive
details.

[80]        
While there were some issues in understanding Mr. Liu, particularly when
he spoke quickly, I found him generally to be an honest witness, and less prone
to exaggerate his complaints. He was also more upfront about their history of
marital problems than Ms. Cheng who, as noted, tended to downplay any issues.

The Medical Evidence

[81]        
Considerable medical evidence was led in connection with each of Ms.
Cheng and Mr. Liu’s alleged injuries. A brief synopsis of that evidence is set
out below.

Ms. Cheng’s Medical Evidence

Dr. Hiram Mok

[82]        
Dr. Mok is a licenced psychiatrist who saw Ms. Cheng for an independent
medical examination on March 13, 2013 at the request of Ms. Cheng’s counsel. It
was Dr. Mok’s opinion that she sustained a major depressive disorder that was
in full remission at the time of the examination and that she further suffered
from post-traumatic stress symptoms manifesting primarily in her phobia of
motor vehicle travel. He also diagnosed her as suffering from chronic pain disorder.

[83]        
He suggested that she would benefit from exposure-based psychotherapy
coupled with driving lessons to address her driving phobia, requiring perhaps
10 sessions with a psychologist.

[84]        
Dr. Mok also opined that Ms. Cheng is a high risk for future episodes of
depression and panic disorder if there are significant new stressors in her
life.

[85]        
In cross-examination, Dr. Mok agreed that Ms. Cheng’s relationship with Mr.
Liu is an important element when assessing her mental health condition and that
he only had Ms. Cheng’s perspective on that relationship. He also agreed that
given the history of marital discord, it is possible that the couple would have
separated regardless of the accident.

Dr. Sujay Mehta

[86]        
Dr. Mehta is a dentist with a particular interest in chronic facial pain
issues, including of the temporomandibular joint (“TMJ”). Dr. Mehta examined Ms.
Cheng on May 16, 2012 at the request of Ms. Cheng’s counsel.

[87]        
At the time of his examination, Dr. Mehta noted that Ms. Cheng
experienced pain when opening her jaw to 23 mm and that her maximum opening was
33 mm. According to Dr. Mehta, normal opening is approximately 45 mm.

[88]        
Dr. Mehta also noted the fact that there was a three month delay after
the accident before Ms. Cheng complained of jaw pain. In Dr. Mehta’s view, this
is not uncommon in that 70-75% of the patients he sees have some sort of
delayed recognition of jaw issues.

[89]        
It was Dr. Mehta’s opinion that the accident caused Ms. Cheng’s jaw
problems. He recommended an MRI to look for any signs of disc displacement. On
November 14, 2012, Dr. Mehta wrote a follow up report addressing the MRI
results which revealed a disc displacement on the left side of Ms. Cheng’s jaw
which Dr. Mehta described as consistent with the type of trauma experienced by Ms.
Cheng in the accident.

[90]        
Dr. Mehta recommended treatment in the form of pain management medications
and physiotherapy.

[91]        
In cross-examination, Ms. Cheng’s dental records were put to Dr. Mehta
which showed at least one pre-accident occasion where she exhibited
restrictions in opening her jaw. However, in Dr. Mehta’s view, this did not
necessarily indicate a pre-existing condition.

Dr. William Yu

[92]        
Dr. Yu is an orthopaedic surgeon who examined both Ms. Cheng and Mr. Liu
at the request of their counsel.

[93]        
Dr. Yu examined Ms. Cheng on September 1, 2010 and the results of that
examination are set out in his report dated September 7, 2010. He examined her
again on June 5, 2013 and the results of that examination are set out in his
updated report dated June 11, 2013.

[94]        
In his first report, Dr. Yu noted Ms. Cheng’s complaints of pain and
tenderness in her chest and mid-thoracic region. He suggested that she may have
suffered an occult fracture, which is a fracture of the small bones in the
sternum. Dr. Yu indicated that this type of fracture is not normally picked up
in x-rays but usually heals without any complication.

[95]        
When Dr. Yu reassessed Ms. Cheng on June 5, 2013, he noted that her soft
tissue injuries to her neck and mid and low back would gradually improve but
that she complained of some residual discomfort. In Dr. Yu’s view, there
were no neurological symptoms and he expected that she would continue to
improve over time.

Dr. James Hung

[96]        
Dr. Hung has been both Mr. Liu and Ms. Cheng’s family physician since
1998. He speaks to both of them in Mandarin.

[97]        
Dr. Hung did not testify as an expert but rather provided fact evidence
of his involvement with Mr. Liu and Ms. Cheng and he reviewed his clinical
notes for both.

[98]        
On April 7, 2009, Dr. Hung completed ICBC medical reports for each of Ms.
Cheng and Mr. Liu. The reports were based on his most recent examination of them
that occurred on March 31, 2009.

[99]        
On Ms. Cheng’s form, Dr. Hung checked “no” for palpatory tenderness and
“normal” for pain/limitation in cervical, lumbar and thoracic spines. He also
noted that an x-ray of the sternum was normal. Dr. Hung recorded Ms. Cheng’s
initial subjective complaints as “face & chest discomfort” and his initial
objective finding as “multiple facial abrasions & blistering, Tender @
lower sternum.”

[100]     While
noting that Ms. Cheng was complaining of slight chest pain and headache,
irritable sleep, tearing eyes and mid back pain, Dr. Hung also noted in the
section concerning current objective findings “no positive findings.”

Mr. Tacky Chan

[101]     Mr. Chan
is a registered clinical counsellor who treated Ms. Cheng for 27 sessions from
November 2010 to October 2012. Mr. Chan conducted the treatment sessions in Mandarin.
Mr. Chan provided a report dated November 15, 2012.

[102]     Based on
his treatment of Ms. Cheng, Mr. Chan stated in his report that Ms. Cheng meets
the criteria for post-traumatic stress disorder (“PTSD”) and depression disorder
in partial remission. He suggested that through the course of counselling, she
has made significant improvement but has not fully recovered and remains
vulnerable to deterioration when faced with ongoing stress and challenges in
her recovery. He also opined that Ms. Cheng’s ability to work at a competitive
level has been “greatly compromised” due to her cognitive problems.

[103]     In
cross-examination, Mr. Chan acknowledged that other professionals, including
his colleague Dr. Learn who is a registered psychologist, disagreed that Ms.
Cheng met the diagnostic criteria for PTSD. It was also put to him in cross-examination
that his report contains no analysis of the diagnostic criteria for either PTSD
or major depressive disorder.

[104]     In his
report, Mr. Chan notes that Ms. Cheng reported to him that she had a satisfying
marriage and family life before the accident, which suggests that Ms. Cheng was
under-reporting her and Mr. Liu’s long-standing marital issues.

Dr. William Koch

[105]     Dr. Koch
is a registered psychologist who assessed both Ms. Cheng and Mr. Liu at the
request of counsel for ICBC.

[106]     Dr. Koch
prepared a report dated September 7, 2012 concerning Ms. Cheng, which was based
on two interviews with her conducted in November of 2011 and July of 2012. Dr.
Koch conducted the interviews through an interpreter.

[107]     Dr. Koch
diagnosed Ms. Cheng’s psychological condition, as of August 2012, as suffering
from a specific phobia of motor vehicle travel which he believes arose as a
result of the accident.

[108]     Dr. Koch
noted that from Ms. Cheng’s records it appears that she had suffered a
short-lived panic disorder between April 2010 and early 2012 and that she also
experienced a clinically significant depressive condition between April 2010
and November 2011. However, in Dr. Koch’s view, the panic disorder and
depressive symptoms were likely triggered by Mr. Liu’s suicide attempt in April
2010 and were exacerbated by their long-standing marital difficulties.

[109]     In terms
of prognosis, Dr. Koch states that Ms. Cheng’s phobia of motor vehicle travel is
unlikely to improve without a change in therapeutic direction. He recommended a
more intense exposure-based therapy of 20-30 hours, along with more driving
time, perhaps augmented by professional driving instruction.

[110]     In
cross-examination, Dr. Koch was questioned about whether his assessment of Ms.
Cheng sufficiently accounted for cultural and linguistic factors. Counsel for Ms.
Cheng referred to a book written by Dr. Koch in which Dr. Koch cautioned about
relying on psychological testing of Chinese patients given that there may be
cultural biases and differences inherent in the tests used.

Dr. Larry Goldstein

[111]     Dr.
Goldstein is a specialist in oral and maxillofacial surgery. He was retained by
counsel for ICBC to review Ms. Cheng’s medical records and to provide his
opinion on whether the accident could have caused a TMJ injury. Dr. Goldstein
did not examine Ms. Cheng before preparing his report.

[112]     It was Dr.
Goldstein’s opinion that the accident would not have caused such an injury in
that there was no evidence that she was struck in the face with sufficient
force to damage her TMJ. Dr. Goldstein noted the photos showing Ms. Cheng with
significant facial abrasions as a result of the airbag deploying, but in his
view the damage to her face was relatively superficial and again insufficient
to cause damage to the TMJ.

Dr. William Regan

[113]     Dr. Regan
is an orthopaedic surgeon who examined both Ms. Cheng and Mr. Liu at the
request of counsel for ICBC.

[114]     Dr. Regan
examined Ms. Cheng on August 3, 2011 and the results of that examination are
set out in a report of the same date.

[115]     In that
report, Dr. Regan provides a diagnosis of “Mid thoracic spine soft tissue pain:
subjective complaints, no objective findings”. Dr. Regan notes in his report
that his findings are similar to those of Dr. Yu in that neither found any
objective basis for Ms. Cheng’s subjective complaints. In Dr. Regan’s view, her
long term prognosis is favourable.

[116]     Dr. Regan
wrote a subsequent report dated July 25, 2013. He did not reassess Ms. Cheng,
but rather based his second report on his review of additional medical records.
In this report, Dr. Regan provides a diagnosis of “resolved soft tissue pain
mid-thoracic spine”. He also opines that in his view, her soft tissue pain was
“likely greater than 50% the responsibility of her motor vehicle accident of
December 18, 2008.”

[117]     In
cross-examination Dr. Regan admitted that his main areas of expertise are the
knee, shoulder and elbow rather than the spine, as compared to Dr. Yu who is a
spine specialist. He also agreed that his report did not refer to any neck pain
that Ms. Cheng complained of after the accident. According to Dr. Regan, he was
focussing on her condition at the time of his examination of her, at which time
she did not complain of neck pain.

[118]     Dr. Regan
also agreed that in the normal course as part of his medical practice, he would
not diagnose a person without actually seeing them.

Mr. Liu’s Medical Evidence

Dr. Shaohua Lu

[119]     Dr. Lu is
a psychiatrist who examined Mr. Liu at the request of Mr. Liu’s counsel.

[120]     Dr. Lu
initially examined Mr. Liu on January 5, 2011, just over two years after the
accident. In conjunction with conducting his assessment, Dr. Lu reviewed a
number of medical records pertaining to Mr. Liu and he conducted a detailed
clinical semi-structured psychiatric interview and a mental status examination.

[121]     Based on
his assessment and review of the available medical information, Dr. Lu
diagnosed Mr. Liu as having met the DSM-IV diagnostic criteria for major depression
during the period of late 2009 to mid-2010. According to Dr. Lu, major
depression is a multi-factoral condition involving genetic, medical, stress and
psychological factors. In Mr. Liu’s case, according to Dr. Lu, chronic pain
also had a direct contributing role in the development of his depression and
his related functional impairments. In Dr. Lu’s opinion, major depression and chronic
pain become reinforcing conditions with the likelihood of substantial worsening
of both conditions over time.

[122]     In terms
of social stressors, Dr. Lu noted the presence of marital and financial
stresses as contributing factors to his depression.

[123]     In Dr.
Lu’s opinion, at the time he saw Mr. Liu in January of 2011, Mr. Liu had made a
good recovery from his major depression and he suggested that Mr. Liu’s
clinical improvement bode well for his long term prognosis.

[124]     As part of
his clinical interview with Mr. Liu, he recorded Mr. Liu as saying that “his
depression has improved substantially. He is almost back to his baseline mood
state. It is difficult for him to even imagine developing depression”.

[125]     Dr. Lu
wrote a follow-up report dated August 10, 2013 in which he reported on the
results of his re-assessment of Mr. Liu which took place on July 29, 2013. As
of that date, Dr. Lu reported that Mr. Liu had not returned to his baseline
function and that he continues to experience chronic pain as well as some
lingering psychosocial stressors. According to Dr. Lu, these lingering problems
affect his sustained occupational capacity.

[126]     However,
Dr. Lu states in this report that Mr. Liu’s mental status has stabilized and
that there has not been a relapse of his major depression, although he remains at
risk for such a relapse due in part to his ongoing pain. According to Dr. Lu, Mr.
Liu would benefit from some further treatment sessions with his psychologist,
Dr. Tigerson Young.

[127]     Dr. Lu was
cross-examined at some length about the fact that he did not explore in more
detail with Mr. Liu the other stressors that might have caused or contributed
to Mr. Liu’s depression, most notably his marital issues and financial problems.
It was put to Dr. Lu that Mr. Liu did not exhibit any signs of depression until
late 2009, at the same time that Mr. Liu and Ms. Cheng decided to sell the west
4th property. Further, counsel for the defendant canvassed various medical records
with Dr. Lu from April 2010 when Mr. Liu attempted suicide, in which Mr. Liu identified
housing and financial issues as the principal sources of his stress.

[128]     Dr. Lu
again reinforced the point that depression is a multi-factoral condition and
that all of these stresses likely factor into Mr. Liu’s condition. Of note, Dr.
Lu does not opine that the accident caused Mr. Liu’s depression but rather
again says that his ongoing pain, apparently from the accident, as well as the
other social stresses all contribute to his condition. He also noted that
chronic pain and depression are interrelated in that each condition can prolong
the other.

Dr. William Yu

[129]     Dr. Yu
examined Mr. Liu on September 1, 2010 and recorded the results of that
examination in a report dated September 7, 2010.

[130]     In that report,
he records Mr. Liu as having sustained injury to his neck, back and left knee. Dr.
Yu notes as well that about one month after the accident, Mr. Liu developed
pain in his right leg and foot. Dr. Yu recommended an MRI of the lumbar spine
to check for possible disc protrusion.

[131]     On
September 22, 2010, Dr. Yu wrote a follow-up report addressing the results of
the MRI. The MRI revealed some pre-existing arthritis in Mr. Liu’s back and a
disc bulge which Dr. Yu believes was caused by the accident and was resulting
in nerve irritation giving rise to Mr. Liu’s pain.

[132]     Dr. Yu
wrote a further report dated June 11, 2013 following a reassessment of Mr. Liu on
June 5, 2013. At the time of this examination, Dr. Yu said that Mr. Liu’s neck
and left knee pain had resolved almost completely and that his main ongoing
complaint was of low back pain.

Dr. James Hung

[133]     As noted
above, Dr. Hung completed an ICBC medical report for Mr. Liu dated April 7,
2009. On Mr. Liu’s report, Dr. Hung similarly noted “no” to palpatory tenderness
and that the cervical, lumbar and thoracic spines were “normal.” He noted the
initial subjective complaint of neck pain and his initial objective findings of
“facial abrasions-chin, cheek & forehead. Tender @ posterior base of neck.”
Under “Additional Remarks/Comments,” Dr. Hung wrote “90% + recovered.”

Dr. Tigerson Young

[134]     Dr.
Tigerson Young is a registered clinical psychologist who treated Mr. Liu over
the period of November 2011 to May 2012. Dr. Young speaks mandarin and
conversed with Mr. Liu in this language.

[135]     According
to Dr. Young, when he first met with Mr. Liu in November of 2011, Mr. Liu still
seemed quite traumatized by the accident and its impact on his family and his
work. Apparently Mr. Liu came in to see him on an urgent basis following an exercise
that he had done that had triggered memories of the accident.

[136]     Over the
course of his treatment of Mr. Liu, Dr. Young says that they established goals
including developing strategies for dealing with Mr. Liu’s negative self-talk. Dr.
Young says that Mr. Liu improved over time, but that his symptoms did not
resolve entirely. He suggested that Mr. Liu would benefit from further
treatments, perhaps three blocks of 12-24 treatment sessions. The current cost
of treatment through Dr. Young is $175.00 per session.

[137]     In
cross-examination, Dr. Young agreed that he did not see Mr. Liu for the first
time until approximately 19 months after his suicide attempt and almost three
years after the accident.

[138]     Dr. Young
agreed as well that before his first meeting with Mr. Liu, he had been told
that Mr. Liu had been in a car accident. At that first meeting, Dr. Young’s
initial questions were all about the accident. It is apparent that Dr. Young
assumed from the outset that the accident was the cause of Mr. Liu’s psychological
distress. He acknowledged that Mr. Liu initially did not believe that the
accident was the cause of his depression but that he came to believe it was
during the course of this case. According to Dr. Young, Mr. Liu believes that
he initially supressed how traumatic the accident was but has since come to
better understand its consequences.

Dr. William Koch

[139]     Dr. Koch
interviewed Mr. Liu on November 3, 2011 and June 28, 2012 and his opinion based
on those interviews is set out in a report dated August 11, 2012.

[140]     As of the
date of that report, Dr. Koch was of the view that Mr. Liu met the criteria for
major depressive disorder in full remission. He did not believe, based on his
interviews and his review of the medical records, that Mr. Liu met the
diagnostic criteria for PTSD.

[141]     Dr. Koch
states in his report that the proximal trigger for Mr. Liu’s onset of depressed
mood in late 2009 appears to have been some combination of marital discord and
financial stress, although he allowed for the possibility that Mr. Liu’s pain
complaints from the accident may have contributed to his financial stress,
marital discord and depression.

[142]     In
cross-examination, it was suggested to Dr. Koch that he may have overstated the
impact of other possible stresses or contributing factors to Mr. Liu’s condition.
For example, Dr. Koch notes that Mr. Liu told him that he had a very strict
upbringing, which Dr. Koch said can be a factor in adult depression. However,
there was no evidence suggesting that Mr. Liu suffered lingering psychological
effects from his childhood.

Dr. William Regan

[143]     Dr. Regan
examined Mr. Liu on August 3, 2011 and the results of that examination are set
out in a report of the same date. Dr. Regan’s diagnosis was “Degenerative disc
disease/lumbar spondylosis of the lumbar spine” and “Exacerbation of mechanical
low back pain superimposed on degenerative disc disease”. It was Dr. Regan’s
opinion that the accident served to aggravate pre-existing conditions of lumbar
spondylosis and cervical degenerative disc disease but did not cause those
conditions.

[144]     In Dr.
Regan’s opinion, Mr. Liu’s condition will continue to improve with additional
exercise, weight reduction and low impact activity such as swimming and
cycling.

[145]     Dr. Regan
also noted that Mr. Liu began to complain of right foot pain after the accident
but in his view this was likely caused by plantar fascitis unrelated to the
accident.

[146]     Dr. Regan
similarly prepared a second report, dated July 25, 2013, based solely on his
review of additional medical records. In that report he confirms his previous
diagnosis but suggests that his opinion on etiology had changed. In particular,
he suggests that Mr. Liu’s low back pain likely represents a recurrent
exacerbation of complaints that he had prior to the accident and that if the
accident had not occurred, it is likely that Mr. Liu would have experienced
some element of low back pain regardless based on his pre-accident symptoms.
Dr. Regan bases this opinion on the nearly nine month interval between the date
of the accident and when Mr. Liu first complained of low back pain.

[147]     In
cross-examination, Dr. Regan agreed that virtually everyone has some degree of
spondylosis but not everyone has pain. He also agreed that the accident could
have triggered Mr. Liu’s pain related to his pre-existing condition.

The Appraisal Evidence – West 4^th Property

[148]     Both
parties submitted appraisal evidence concerning the estimated market value of
the west 4th property as of April 1, 2010.

[149]     Mr. Liu relies
on the report of Robert Minielly dated March 13, 2013, which estimated the
market value of the west 4^th property at $495,000 as of April 1,
2010. In response, ICBC puts forward the report of Andre Garon dated August 12,
2013 in which Mr. Garon estimates the value of the property at $370,000 as of
the April 1, 2010 date.

Income Loss Evidence – Stephen Graff, CA

[150]     Neither Mr.
Liu nor Ms. Cheng led evidence from an accountant or other financial professional
concerning their claims for loss of income.

[151]     ICBC
submitted a report dated August 23, 2013 authored by Stephen Graff, CA who was
retained by ICBC to perform income loss calculations for each of Mr. Liu and Ms.
Cheng based on the available financial information.

[152]     Essentially,
it was Mr. Graff’s opinion, as detailed in his report that, due to the inadequacy
of the available information, he was unable to determine if either Ms. Cheng or
Mr. Liu had incurred any income loss as a result of the accident.

Lay Witnesses

Michael Wurm

[153]     Mr. Wurm
is a management consultant and Mr. Liu’s former cleint. He testified that Mr.
Liu was his accountant beginning in 2006 and that Mr. Liu did his personal
accounting as well as the accounting for his consulting business and another
company. Mr. Wurm said that Mr. Liu’s work was good and that he had no obvious
emotional problems.

[154]     In
February or March of 2010, Mr. Liu told Mr. Wurm that he had stopped being an
accountant due to depression. Mr. Wurm says that he would have continued to use
Mr. Liu had Mr. Liu not sent him away.

[155]     In
cross-examination, Mr. Wurm said that he started to use Mr. Liu because Mr.
Liu’s office was located next to his chiropractor’s office on west 4th avenue
in Vancouver. He indicated that Mr. Liu had not called him since 2010, and did
not tell him that he is working as an accountant again.

Miranda Lee

[156]     Miranda
Lee is another former client of Mr. Liu who testified through a Mandarin
interpreter. Ms. Lee said that Mr. Liu was her accountant from 1998 through
2010. He did both her personal and business taxes. His work was good and Ms.
Lee was not aware of any emotional problems.

[157]     In 2009, Mr.
Liu did her personal taxes but not her business taxes. He said that he was not
well mentally and could not maintain the quality of his work for the business
taxes. Mr. Liu also did her personal taxes in 2010 because she did not have
another accountant. She says she would have continued to use Mr. Liu in the
future, although it should be noted that Ms. Lee stated that she is now
retired.

[158]     In
cross-examination Ms. Lee said that Mr. Liu had not contacted her since 2010 to
let her know that he was back in business.

David Fairhall

[159]     Mr.
Fairhall is a CGA who acted as Mr. Liu’s mentor beginning in 1995. Under the
rules governing CGAs, new sole practitioners have to have their audit and
review files reviewed by a mentor.

[160]     Prior to
the accident in 2008, Mr. Fairhall said that Mr. Liu’s work was entirely
satisfactory and that he was not aware of Mr. Liu having any health issues.

[161]     In
December of 2009, Mr. Liu had an audit client that was a subsidiary of a
foreign corporation. The parent company wanted the audit results for the year
ending December 31, 2009 by February 2010, which was a short turnaround time. Mr.
Liu called Mr. Fairhall for assistance in reviewing the audit work because of
the health issues he was experiencing and the tight time-frame for the audit
work.

[162]     In
cross-examination, Mr. Fairhall agreed that as part of assisting Mr. Liu with
the December 31, 2009 audit he was provided with the audit file for the
previous year that had been completed in early 2009. He said that the audit work,
which had been done by Mr. Liu, had been done satisfactorily. He also agreed that
the majority of the work on the December 31, 2009 audit was done by Mr. Liu and
that Mr. Liu subsequently did the audit work for the December 31, 2010 year and
did not ask for Mr. Fairhall’s assistance on that audit.

[163]     Mr.
Fairhall testified that in December 2009 he met with Mr. Liu and they discussed
ways in which Mr. Liu could potentially grow his practice. He also agreed that
by 2009, Mr. Liu had not completed enough audit or review assignments to take
himself out of the requirement that his files be reviewed by a mentor.

Analysis

Causation

[164]     While
causation is often in issue in personal injury cases, it is of central
importance here given the nature of the claims advanced by the plaintiffs who,
as noted above, go far beyond claims for damages for the physical injuries
sustained as a result of the accident.

[165]     The
principles governing the causation analysis are well known. The plaintiff must prove
on a balance of probabilities that the defendant’s negligence caused or
materially contributed to an injury. The defendant’s negligence need not be the
sole cause of the injury so long as it is part of the cause beyond the range of
de minimus. Causation need not be determined by scientific precision:
see Athey v. Leonati, [1996] 3 S.C.R. 458, at paras. 13-17 [Athey].

[166]     The
primary test for causation asks: but-for the defendant’s negligence, would the
plaintiff have suffered the injury? The “but-for” test recognizes that
compensation for negligent conduct should only be made where a substantial connection
between the injury and the defendant’s conduct is present: see Resurfice
Corp. v. Hanke, 2007 SCC 7, at paras. 21-23; Clements v. Clements, 2012
SCC 32 at para. 8.

[167]     Causation
must be established on a balance of probabilities before damages are assessed.
As McLachlin C.J.C. stated in Blackwater v. Plint, 2005 SCC 58 at para.
78:

…Even though there may be
several tortious and non-tortious causes of injury, so long as the defendant’s
act is a cause of the plaintiff’s damage, the defendant is fully liable for
that damage. The rules of damages then consider what the original position of
the plaintiff would have been. The governing principle is that the defendant
need not put the plaintiff in a better position than his original position and
should not compensate the plaintiff for any damages he would have suffered
anyway: Athey.

[168]     As is also
noted in Clements at para. 9, the “but for” test must be applied in a
robust common sense fashion.

[169]     Where a
plaintiff has pre-existing conditions, the court must consider the relationship
of those conditions to the current complaints. A defendant tortfeasor is liable
for all injuries caused by the tort even if those injuries are more severe than
might otherwise be the case due to the pre-existing condition (the “thin skull
rule”). However, the defendant is liable only for the injuries actually caused
by the accident and not for any effects of the pre-existing condition that the
plaintiff would have experienced in any event (the “crumbling skull rule”). Put
another way, the defendant is liable for the additional damage but not the
pre-existing damage (Athey at paras. 34-35).

Findings of Fact Regarding the Plaintiffs’ Injuries

Ms. Cheng

[170]     The
evidence establishes that Ms. Cheng suffered significant bruising to her face
as a result of the air bag being deployed. The injury caused her considerable
pain and discomfort as well as embarrassment, however the injury resolved
within three to four months.

[171]     Ms. Cheng also
suffered pain in her chest which, according to Dr. Yu, may have involved an
occult fracture. Again, however, this injury resolved within a few months.

[172]     In
addition, Ms. Cheng suffered a soft tissue injury to her neck and back. Dr. Yu
and Dr. Regan both acknowledge these injuries but differ on the duration of the
symptoms. Ms. Cheng testified that she continues to experience periodic
symptoms in both her neck and back. On balance, I find that these injuries were
again largely resolved within a few months and that any ongoing symptoms
experienced by Ms. Cheng are minimal. In this regard, I note Dr. Hung’s entries
on Ms. Cheng’s ICBC medical form dated April 7, 2009 in which he checked “no”
to palpatory tenderness and “normal” with respect to her cervical, lumbar and
thoracic spines.

[173]     The more
difficult aspects of Ms. Cheng’s claim concern her jaw issues and her
psychological condition.

[174]     Dr. Mehta
and Dr. Goldstein differ in opinion as to whether the accident caused Ms.
Cheng’s jaw problems. On balance, I prefer the evidence of Dr. Mehta who had
the opportunity to examine Ms. Cheng whereas Dr. Goldstein’s opinion was based
solely on his review of the available dental records.

[175]     Dr.
Goldstein put considerable weight on an entry dated October 22, 2008 in Ms.
Cheng’s UBC dental records in which some unnamed person ticked a box indicating
a jaw opening of “25-35 mm” which, if accurate, suggests some pre-existing restriction.

[176]     This entry
is of little probative value absent any evidence of the circumstances in which
the record was completed. Further there were at least two documented occasions
prior to the accident in which Ms. Cheng’s jaw opening was measured at 40 mm,
which is well within the normal range.

[177]     I would
note that Dr. Goldstein also based his opinion on his view that there was insufficient
force involved in the accident to cause Ms. Cheng’s jaw issues. However, there
was no evidence led as to the amount of force occasioned by the impact of the
accident. Rather, Dr. Goldstein based his opinion on his review of photographs
of Ms. Cheng’s face taken shortly after the accident. While the photos are
instructive as to the appearance of the injuries sustained by Ms. Cheng, they
provide little insight into the force applied to her face. For this reason, I
put little weight on Dr. Goldstein’s opinion.

[178]     Finally, I
note that an MRI of Ms. Cheng’s jaw done in November 2012 revealed a disc
displacement on the left side of Ms. Cheng’s jaw. Dr. Mehta could not say for
certain if the disc displacement was caused by the accident or was a
pre-existing condition. However, even if the disc displacement existed prior to
the accident, Dr. Mehta was of the view that the accident caused the resulting
pain. Again, I accept Dr. Mehta’s opinion and find that the accident caused Ms.
Cheng’s jaw problems.

[179]     That said,
while Dr. Mehta is guarded about Ms. Cheng’s prognosis for full recovery, her
ongoing symptoms are relatively minor and do not, by themselves, result in any
disability.

[180]     In terms
of Ms. Cheng’s psychological condition, it is common ground that Ms. Cheng
suffered a driving phobia as a result of the accident, which is ongoing.

[181]     Ms. Cheng testified
that she also continues to experience sleep problems and cognitive
difficulties, however her evidence on these points was vague.

[182]     I do not
accept the opinion of Mr. Chan, Ms. Cheng’s counsellor, that she met the
diagnostic criteria for PTSD. It is not clear that Mr. Chan is qualified to
make that diagnosis and the numerous errors in his report undermine its weight.

[183]     Both Dr.
Mok and Dr. Koch agree that Ms. Cheng experienced a clinically significant
depressive condition and, as well, Dr. Koch acknowledges that Ms. Cheng exhibited
signs of a panic disorder. Dr. Mok and Dr. Koch differ, however, on whether
those conditions were caused by the accident, particularly in light of the fact
that the symptoms only appeared well after the accident.

[184]     Dr. Mok
notes in his report dated March 13, 2013 that Ms. Cheng “started feeling
sad/depressed since around December 2009, coincident with the deterioration in
her husband’s mental health.”

[185]     For his
part, Dr. Koch opines that Ms. Cheng experienced a panic disorder and
depressive symptoms, likely triggered by her husband’s suicide attempt in April
2010.

[186]     In my
view, the evidence establishes that Ms. Cheng experienced psychological
problems in the form of the driving phobia immediately following, and as a
result of, the accident. She subsequently experienced further psychological
symptoms of panic disorder and depression that emerged at the earliest in late
2009 and that worsened in the spring of 2010.

[187]     I find
that while Ms. Cheng was no doubt in a more vulnerable psychological condition
at that time, as evidenced by the ongoing driving phobia, the more severe
psychological issues that she experienced were triggered by Mr. Liu’s suicide
attempt and the emotional upset and stress caused by that event.

[188]     I would
note as well that, in any event, apart from the ongoing driving phobia, Ms.
Cheng’s psychological issues were largely resolved by late 2011, although Dr.
Mok suggests that she will be vulnerable to future episodes of depression.

[189]     In sum, I
find that, as a result of the accident, Ms. Cheng suffered relatively
short-lived pain in her face and chest, mild to moderate soft tissue injuries
to her neck and back, jaw pain and psychological injury that manifests in the
form of a driving phobia, which is ongoing.

Mr. Liu

[190]     I find
that similar to Ms. Cheng, Mr. Liu suffered bruising to his face and related
pain from the accident, which resolved within a few months.

[191]     The
evidence further establishes that Mr. Liu suffered a soft tissue injury to his
neck. Dr. Yu indicated that there were still symptoms in September of 2010 but
that they had largely resolved by June 2013. However, I note again that when Dr.
Hung completed Mr. Liu’s ICBC medical form on April 7, 2009, he recorded that Mr.
Liu was “90%+ recovered.”

[192]     In terms
of his back, the MRI conducted in September 2010 indicated that Mr. Liu had
pre-existing arthritis in his back and a disc bulge. Dr. Yu was of the opinion
that the disc bulge was caused by the accident. Dr. Regan disagreed. In his
view, the pain Mr. Liu experienced after the accident represented a recurrent
exacerbation of complaints that he had prior to the accident. Dr. Regan based
his opinion on the nine month time interval between the date of the accident
and Mr. Liu’s first reported back symptoms.

[193]     I do not
accept Dr. Regan’s evidence on this point. It is apparent that he was mistaken
about the timing of Mr. Liu’s complaints of back pain as Dr. Hung noted such
complaints shortly following the accident. Further, apart from one isolated
incident in May 2007 when Mr. Liu strained his back lifting something, there
was no evidence that Mr. Liu had prior back problems.

[194]     I agree
with counsel for Mr. Liu that on balance the evidence establishes that Mr. Liu had
a degenerative condition in his back that was previously asymptomatic but that
became symptomatic as a result of the accident.

[195]     Mr. Liu testified
that his back pain is ongoing. However, on the evidence, I find that any
continuing symptoms are relatively minor in nature.

[196]     With
respect to Mr. Liu’s psychological condition, both Dr. Lu and Dr. Koch agree
that he experienced a major depressive disorder in 2010 and 2011. While Dr.
Koch indicates that the symptoms had largely resolved by the end of 2011, Dr.
Lu reported some lingering issues when he last assessed Mr. Liu in July 2013.

[197]     Where Dr.
Lu and Dr. Koch differ is in the cause of the depression. While Dr. Lu does not
opine that the accident directly caused the depression, he notes that the pain
caused by the accident was a significant contributing factor, along with Mr.
Liu’s marriage and financial stresses.

[198]     I would
note that I found Dr. Lu to be a very good witness in that he appeared
knowledgeable and he presented his evidence in an objective manner.

[199]    
On balance, I prefer his evidence to that of Dr. Koch. While Dr. Koch is
no doubt well qualified and has extensive experience, his opinion that Mr.
Liu’s depression was the result of causes other than the accident was
speculative. For example, he says at page 12 of his report:

The proximal trigger for Mr.
Liu’s onset of depressed mood in late 2009 appears to have been some
combination of marital discord (he had recently separated from his wife for the
second time) and financial stress. It is possible that his pain complaints
arising from soft tissue injuries in the subject  MVA may have contributed to
his financial stress, maritl discord, or depression but, from Mr. Liu’s
description of his marriage, it seems more likely than not that his marriage
has been a substantial stressor for many years before the MVA.

[200]     Unlike Dr.
Lu who noted the interrelationship of pain and other stresses, Dr. Koch
attempted to down play the effects of pain as a contributing factor to
depression. Further, he went out of his way to introduce other causal factors
into the equation, such as Mr. Liu’s allegedly strict upbringing, again with a
view to minimizing the impact of the injuries and pain resulting from the
accident.

[201]     There is
little doubt on the evidence that at the time of the accident, Mr. Liu was
subject to a variety of stresses, most notably financial issues and long
standing marital problems. However, there is no evidence that these stresses
manifested themselves in the form of pre-existing psychological or emotional
issues.

[202]     On balance
therefore, I find that the accident caused Mr. Liu to experience pain and
related symptoms that developed into a major depression, culminating in a
suicide attempt in April 2010. I also find that Mr. Liu’s depression largely
resolved by the end of 2011, although he continues to experience some residual
symptoms. This was evident in his testimony as he would often break into tears
when discussing the accident.

[203]     In sum, I
find that as a result of the accident, Mr. Liu suffered facial bruising and
pain that resolved within a few months, a mild to moderate soft tissue injury
to his neck which also resolved, aggravation of a pre-existing degenerative
back condition that results in occasional minor ongoing symptoms, and a major
depression in 2010 and 2011 with some lingering psychological symptoms
continuing.

Damages

Ms. Cheng and Mr. Liu’s Marriage

[204]     Before
turning to the assessment of non-pecuniary damages for each of Ms. Cheng and Mr.
Liu, I will address the issue of their marital separation as it factors into
each of their claims.

[205]     Ms. Cheng
and Mr. Liu each submit that the impacts of the accident, specifically the
physical and emotional injuries suffered, were a significant contributing factor
to the break-down of their marriage.

[206]     In his
submissions, counsel for Ms. Cheng and Mr. Liu acknowledged that they had
experienced problems in their marriage prior to the accident, including a prior
separation and at least two incidents in which the police were called. However,
in his submission, the evidence established that after they reunited in 1997
there were no further separations and their marriage was strong with no
domestic disputes other than what might normally occur between married couples.

[207]     In response,
ICBC went to considerable lengths both in the evidence and in submissions to
portray Ms. Cheng and Mr. Liu’s marriage as being dysfunctional from the outset.
While events that occurred some 20 years ago early in their marriage are of
little relevance to the state of their marriage in 2009 when they separated, I
do agree with ICBC that the rosy spin that Ms. Cheng in particular put on their
relationship leading up to the time of the accident does not provide an
accurate picture.

[208]     For
example, it is apparent from the evidence that Ms. Cheng and Mr. Liu continued
to argue about matters such as her involvement in his accounting business, Mr.
Liu’s plans to expand the business and their attempts to secure space for Ms.
Cheng to open a daycare.

[209]     Other
relevant factors include the fact that Ms. Cheng and Mr. Liu separated in June
2009, before either began to experience significant emotional or psychological
issues. Moreover, though they separated in the sense that Ms. Cheng moved into
her own apartment, they continued to spend considerable time together including
working together in Mr. Liu’s accounting business and Mr. Liu regularly driving
Ms. Cheng around.

[210]     The
evidence establishes that there was a real rift in the relationship following
the sale of the west 4th property in April 2010, however it is apparent that
this rift resolved and that Ms. Cheng and Mr. Liu were intimate with one
another by October 2010. Further, while they have lived apart since June 2009,
there was no evidence of any intention to divorce.

[211]     That said,
while ICBC offered considerable speculation about what it says are the real
causes of their separation, it did not seriously undermine the evidence of both
Ms. Cheng and Mr. Liu that the fall-out from the accident was a contributing
factor.

[212]     In sum on
this issue, I think that a reasonable interpretation of the evidence is that Ms.
Cheng and Mr. Liu had a difficult relationship which was exacerbated by the
accident. I accept that the impacts of the accident were one of many
contributing factors to their separation but I find as well that they may have
separated in any event at some point in the future, even without the accident.

[213]     I find
further that while they have physically separated and live in separate
residences, their relationship has not terminated and they continue to function
in large part as a marital unit.

[214]     Thus, for
the purpose of assessing each of Ms. Cheng and Mr. Liu’s claims for non-pecuniary
damages, the state of their marriage is a factor to consider but it is not a
major consideration.

Non-Pecuniary Damages

[215]     Non-pecuniary
damages are awarded to compensate an injured person for pain, suffering, loss
of enjoyment of life and loss of amenities. The principles governing the
assessment of such damages are well known and have been discussed in numerous
cases: see Stapley v. Hejset, 2006 BCCA 34 at para. 46, leave to appeal
to S.C.C. ref’d, [2006] S.C.C.A. No. 100.

[216]     Awards of
non-pecuniary damages in other cases provide a useful guide to the court,
however the specific circumstances of each individual plaintiff must be
considered as any award of damages is intended to compensate that individual
for the pain and suffering experienced by them: see Trites v. Penner,
2010 BCSC 882 at para. 189. Moreover, the compensation award must be fair and
reasonable to both parties: see Miller v. Lawlor, 2012 BCSC 387
at para. 109 citing Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229.

Ms. Cheng’s Non-Pecuniary Damages

[217]     Ms. Cheng
submits that an award of non-pecuniary damages in the range of $75,000-100,000
is appropriate and cites the following cases in support:

                     
(a)         
Ahonen v. Thauli, 2013 BCSC 1607;

                     
(b)         
Foubert v. Song, 2012 BCSC 1143;

                     
(c)         
Burke v. Artz, 2011 BCSC 850; and

                     
(d)         
Kilian v. Valentin, 2012 BCSC 1434.

[218]     In
response, ICBC submits that the proper range is $45,000-55,000 and cites the
following authorities:

                     
(a)         
Brousseau v. John Doe, 2012 BCSC 1676;

                     
(b)         
Peck v. Peck, 2012 BCSC 1617;

                     
(c)         
Li v. Lian, 2012 BCSC 1892;

                     
(d)         
Mazzon v. Pribaz, 1993 CanLII 241 (B.C.S.C.);

                     
(e)         
Leung v. Foo, 2009 BCSC 747; and

                       
(f)         
Qiao v. Buckley, 2008 BCSC 1782.

[219]     In my
view, the facts of the various authorities submitted by ICBC are more
consistent with the facts underlying Ms. Cheng’s claim, although I would put Ms.
Cheng’s claim at the higher end of that range given the injury to her jaw and
the duration of her driving phobia.

[220]     Taking all
of the circumstances into account, I award Ms. Cheng $60,000 under this head.

Mr. Liu’s Non-Pecuniary Damages

[221]     Mr. Liu
submits that an award of non-pecuniary damages in the range of $100,000-135,000
is appropriate and cites the following cases in support:

                     
(a)         
Anson v. Karoway, [1997] B.C.J. No. 1850 (S.C.);

                     
(b)         
Marois v. Pelech, 2007 BCSC 1969, aff’d 2009 BCCA 286;

                     
(c)         
Wong v. Luong, 2004 BCSC 1489;

                     
(d)         
Eccleston v. Dresen, 2009 BCSC 332;

                     
(e)         
Ashcroft v. Dhaliwal, 2007 BCSC 533, aff’d 2008 BCCA 352, leave
to appeal to S.C.C. ref’d, [2008] S.C.C.A. No. 488;

                       
(f)         
Rizzotti v. Doe, 2012 BCSC 1330; and

                     
(g)         
Tsalamandris v. MacDonald, 2011 BCSC 1138, var’d on other
grounds, 2012 BCCA 239.

[222]     For its
part, ICBC puts forward three different damages scenarios which depend on the
court’s findings as to the severity of Mr. Liu’s injuries. In ICBC’s
submission, the appropriate damages range from a low of $22,500 to a high of $75,000,
again depending on the findings as to Mr. Liu’s condition. ICBC cites a number
of cases in support of each scenario, which are too numerous to list here.

[223]     The low
end of the damages spectrum advanced by ICBC is premised on a finding that Mr.
Liu suffered only relatively minor soft tissue injuries, the effects of which
were of limited duration, whereas the high end reflects a finding that Mr.
Liu’s emotional and psychological issues were caused by the accident, which of
course ICBC denies.

[224]     I have
found that the accident was a significant contributing factor to Mr. Liu’s psychological
condition, which included a major depressive disorder and an attempted suicide.
Taking this into account along with the other injuries sustained by Mr. Liu, I
award him $85,000 under this head.

Past Wage Loss – Ms. Cheng

[225]     Prior to
the accident, Ms. Cheng earned income from two sources: as a real estate agent
and working in Mr. Liu’s accounting business. As set out in an Agreed Statement
of Facts, her income from each source was as follows:

Real Estate Commissions:

[226]     The income
recorded in 2010 was apparently Ms. Cheng’s share of the commission for the
sale of the west 4th property.

[227]     The agreed
statement of facts also sets out the number of real estate transactions that Ms.
Cheng was involved in prior to the accident:

[228]     In its
submissions, ICBC noted that in 2004, two of the three transactions involved
properties owned by the family and in 2005, one of the transactions involved
property owned by the family and one was not, in fact, a real estate sale but a
commission adjustment from 2003.

Income from Mr. Liu’s Accounting Business:

[229]     The
amounts recorded in 2011 and 2012 reflect payments from Formosa not Mr. Liu’s accounting
practice and apparently relate to Ms. Cheng’s share of the profits from the
sale of property owned by Formosa, specifically the west 4th property.

[230]     As I
understand the evidence, the payments to Ms. Cheng from Mr. Liu’s accounting
practice were more a form of income splitting than remuneration for actual work
done by Ms. Cheng, although the evidence did establish that she helped out in
the business. For this reason, the amounts paid to Ms. Cheng from the
accounting business are addressed in connection with Mr. Liu’s income loss
claim.

[231]     Ms.
Cheng’s claim for past wage loss is based on her inability to work as a realtor
following the accident. Acknowledging that her income as a realtor was minimal
even before the accident, her counsel submits that a modest amount of $5,000
per year is reasonable, resulting in a total claim for past loss of income of
$25,000.

[232]     ICBC
submits that Ms. Cheng should recover at best a nominal amount under this head.
It notes again her minimal earnings prior to the accident and submits that the
injuries suffered in the accident did not disable her from working as a realtor.
While acknowledging her driving phobia, ICBC says that she was still able to
perform many, if not most, of the job requirements of a realtor. ICBC notes for
example that Ms. Cheng successfully represented a client’s interests in a
complex rent negotiation in the summer of 2010.

[233]     I find
that Ms. Cheng’s ability to work as a realtor was impeded in the 3-4 months
following the accident due to the injury to her face. Thereafter, there has
been some limitation due to her ongoing driving phobia. However, given her
modest earning history and the fact that her condition is far from totally
disabling, any income loss is minimal.

[234]     Recognizing
that it is not possible on the evidence to discern with any precision the
number of real estate transactions that Ms. Cheng would have been involved in
but for the accident, and given that the assessment of damages for income loss
is in any event not intended to be a mathematical calculation, I award her a
nominal sum of $5,000 net for past income loss.

Past Wage Loss – Mr. Liu

[235]     The
parties agreed in the Agreed Statement of Facts that Mr. Liu had the following
sales, operating expenses and net income from his accounting practice:

[236]     The
parties agreed further that Mr. Liu paid himself the following salaries:

[237]     There is
no accounting evidence purporting to provide an analysis of Mr. Liu’s income
loss. Mr. Liu did not lead any evidence of this nature. ICBC submitted a report
prepared by Stephen Graff who was of the view that he could not offer an
opinion on Mr. Liu’s income loss due to the inadequacy of the information
provided, specifically the accounting records provided by Mr. Liu.

[238]     Mr. Liu submits
that the available evidence, as reflected in the first table above, indicates
steadily increasing revenues in the years prior to the accident. He notes that
he continued to work at a similar rate in 2009 after the accident, but then the
effects of the accident caught up with him and his work began to suffer, as
reflected in the decline in revenues beginning in 2010, falling off
precipitously thereafter.

[239]     In his
written submission, Mr. Liu provided an income calculation in which he backs
out of the recorded expenses all expenses not paid to a third party, specifically
amortization expenses, salaries and wages paid to himself and Ms. Cheng, and
rent paid to Formosa for use of the west 4th property. Mr. Liu submits that
this approach provides a more accurate assessment of the actual money earned
that stayed within the family.

[240]     Applying
this approach, Mr. Liu submits that what he characterizes as the “retained
revenues” in his business grew from approximately $5,000 for the year ending
April 30, 2005 to approximately $31,000 for the year ending April 30, 2007 and
$36,000 for the year ending April 30, 2008.

[241]     Mr. Liu submits
further that but for the accident, his retained revenues would have continued
to grow up to the point of approximately $50,000 per year. Applying this figure
against his actual earnings in the years 2009 to the date of trial results in a
past income loss of $224,000 gross or approximately $175,000 net.

[242]     ICBC
submits that it is not possible on the evidence to find that Mr. Liu’s revenues
would have continued to grow given the inadequacy of the information supplied
by Mr. Liu. It says further that Mr. Liu’s business lacked the capacity and the
money to grow beyond existing levels. ICBC submits as well that it is not
proper to “back out” expenses such as amortization and rent from the revenues as
these items represent real expenses for the business.

[243]     It is
ICBC’s position that the most accurate means of assessing the income realized
from the accounting business is to take the recorded net income and add back in
the salaries paid in each year to Mr. Liu and Ms. Cheng (which amounts were
presumably deducted in order to arrive at a net income). According to ICBC,
this results in the following figures:

[244]     Based on
the above, the average of the pre-accident total income figures, including the
2008-2009 year, is $11,153.63.

[245]     Finally,
ICBC submits that, at best, Mr. Liu has established an entitlement to damages
for past income loss for a period of one year only.

[246]     In my
view, the evidence does not support the assumption underlying Mr. Liu’s claim
that his retained earnings would have grown to $50,000. Rather, I accept ICBC’s
submission that a more reasonable approach is to calculate an effective income
by adding the salaries paid to Mr. Liu and Ms. Cheng back into the recorded net
income. As noted, this results in an average income in the pre-accident years
of approximately $11,000.

[247]     However, I
also accept Mr. Liu’s submission that the rent paid to Formosa should be
included in the same calculation. The west 4th property that was used by Mr.
Liu for his accounting practice was owned by Formosa, which in turn was wholly
owned by Mr. Liu and Ms. Cheng. Accordingly, the “rent” paid by the accounting
practice was a form of income splitting and the amount should be included in
any determination of Mr. Liu’s income.

[248]     If the
rent paid to Formosa is added to ICBC’s income figures above, Mr. Liu’s income
in the years ending April 30, 2006 to April 30, 2009 is as follows:

[249]     This
results in an average annual income for these years of $24,026.

[250]     I do not
accept ICBC’s submission that Mr. Liu’s recovery should be limited to one year.
The evidence established that he continued to work through the 2009 calendar
year but that his symptoms worsened in late 2009 and early 2010. He remained in
psychological distress through 2010 and into 2011, although the evidence
indicates that by the end of 2011 his symptoms had stabilized.

[251]     I
therefore find that Mr. Liu experienced a loss of income in the fiscal years
ending April 30, 2010, 2011 and 2012. Using the average pre-accident income
figure of approximately $25,000, per year as a guide, and taking account of the
income that Mr. Liu was able to earn in 2010 and 2011 (using the same approach
of adding the rent paid to Formosa in 2010 to ICBC’s income figures), I find
that a reasonable award for past income loss for Mr. Liu is $70,000.

Loss of Future Earning Capacity

[252]    
In Morgan v. Galbraith, 2013 BCCA 305, the Court of Appeal,
citing its earlier decision in Perren v. Lalari, 2010 BCCA 140, described
the approach to be taken by the trial judge when assessing a claim for loss of
future earning capacity. Madam Justice Garson stated at para. 53:

…in Perren, this Court
held that a trial judge must first address the question of whether the
plaintiff had proven a real and substantial possibility that his earning
capacity had been impaired. If the plaintiff discharges that burden of proof,
then the judge must turn to the assessment of damages. The assessment may be
based on an earnings approach…or the capital asset approach,

[253]     The
earnings approach is generally appropriate where the plaintiff has some
earnings history and where the court can reasonably estimate what his/her
likely future earning capacity will be. This approach typically involves an assessment
of the plaintiff’s estimated annual income loss multiplied by the remaining
years of work and then discounted to reflect current value, or alternatively,
awarding the plaintiff’s entire annual income for a year or two: Pallos v.
Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.) at
para. 43 [Pallos]; Gilbert v. Bottle, 2011 BCSC 1389 at para. 233.
While there is a more mathematical component to this approach, the assessment
of damages is still a matter of judgment not mere calculation.

[254]     The
capital asset approach, which is typically used in cases in which the plaintiff
has no clear earnings history, involves consideration of a number of factors such
as whether the plaintiff:

i)       has
been rendered less capable overall of earning income from all types of
employment;

ii)     is less
marketable or attractive as a potential employee;

iii)    has lost the
ability to take advantage of all job opportunities that might otherwise have
been open; and

iv)   is less valuable to
herself as a person capable of earning income in a competitive labour market: Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) at para. 8 [Brown]; Gilbert
at para. 233.

[255]     In
assessing the claims for loss of future earning capacity by both Ms. Cheng and Mr.
Liu, I note that there is no expert evidence for either of them regarding
functional or vocational capacities or limitations and again no economic or
accounting evidence supporting the alleged losses.

Future Loss – Ms. Cheng

[256]     With
respect to Ms. Cheng, there is no evidence that she is precluded from pursuing
employment as a realtor or engaging in other gainful occupations apart from her
ongoing driving phobia. As noted above however, that condition has only
minimally impaired her ability to function as a realtor and it is hoped that
with appropriate treatment, the condition will resolve. Further, I note again
the minimal success that Ms. Cheng has had in her real estate career to date.

[257]     In the
circumstances, it is my view that Ms. Cheng has not met the burden of
establishing a real and substantial possibility that her income earning
capacity has been impaired and I therefore decline to award her damages under
this head.

Future Loss – Mr. Liu

[258]     As set out
above under the discussion of past income loss, the evidence establishes that Mr.
Liu’s symptoms had stabilized by the end of 2011, although he continues to
experience some residual symptoms. Notwithstanding this stabilization, it is
apparent that he did very little to re-connect with former clients or to
rebuild his accounting practice.

[259]     I note as
well the evidence of Mr. Fairhall that Mr. Liu completed an audit in late 2010
or early 2011 that was reviewed by Mr. Fairhall and was found to be
satisfactory.

[260]     Nonetheless,
I am satisfied that the lingering effects of the accident have caused a diminishment,
albeit a minimal one, in Mr. Liu’s earning capacity within the meaning of the
factors articulated in Brown. Taking all of the circumstances into
account, I find a reasonable award under this head is the equivalent of one
year of his average annual income of $25,000.

The Sale of the West 4th Property

[261]     Ms. Cheng
and Mr. Liu submit that the sale of the west 4th property was improvident and precipitated
by Mr. Liu’s mental health issues caused by the accident.

[262]     Ms. Cheng
and Mr. Liu’s appraiser sets the market value of the property at $495,000 in
April 2010 whereas ICBC’s appraiser suggests a value of $370,000.

[263]     Ms. Cheng
and Mr. Liu submit that, using a reasonable value of $450,000, the property was
sold for $125,000 below market value. They say that damages for this loss
should be allocated as between them at 80% to Mr. Liu and 20% to Ms. Cheng, in
keeping with their respective ownership interests in Formosa, which was the
registered owner of the property.

[264]     Ms. Cheng
and Mr. Liu cite in support of this claim Cole v. Spriggs, [1997] B.C.J.
No. 336 (S.C.) at para. 118, aff’d [19985] B.C.J. No. 2753 (C.A.), where the
court awarded the plaintiff damages for the sale of his interest in a business
at less than he might otherwise have realised due to his mental state resulting
from an accident.

[265]     In
response, ICBC submits that this claim cannot be advanced in this action
because it was not pleaded. ICBC submits as well that the owner of the property
was Formosa, not Ms. Cheng and Mr. Liu. While conceding that the courts
regularly award damages for income loss notwithstanding that the income was
earned through a corporate vehicle, ICBC says that this principle has not been
extended to property owned by a holding company. In this regard, the law is
well settled that a shareholder of a company has no ownership interest in the
property of the company (BCE Inc. v. 1976 Debentureholders, 2008 SCC 69
at paras. 34-35).

[266]     Leaving
those technical objections aside, I agree with ICBC that the accident, and Mr.
Liu’s resulting condition, did not cause the loss claimed. The evidence
established that Ms. Cheng and Mr. Liu decided to sell the property because Ms.
Cheng believed that they could sell it for a significant profit. They initially
listed the property for $498,000 but then reduced it to $449,000 when they
received no offers. After 22 days on the market at that price, it was reduced
further to $378,000 and then after a further 80 days at that price, it was
reduced again to $318,000. An offer was submitted at that price but Ms. Cheng
negotiated the price up to the final selling price of $325,000.

[267]     Throughout
this period, Ms. Cheng was acting as the listing agent for the property and
there is no suggestion that her ability to function or her judgment was
impaired. Further, it is clear that Ms. Cheng and Mr. Liu both agreed to sell
the property and, notwithstanding that the two appraisals done after the fact
suggest a higher market value, there is no evidence that a better deal was
available at the time.

[268]     Thus, it
simply cannot be said that the accident caused this alleged loss. In any event,
I would find that the loss claimed was not a foreseeable consequence of the
accident and is therefore too remote to be recoverable.

Lost Opportunity to Invest in Real Estate

[269]     Ms. Cheng
and Mr. Liu submit that before the accident they were successful in buying
property at reasonable prices and then selling those properties at a profit. They
say that an award of $50,000 to each of them under this head is reasonable.

[270]     In my
view, there is no basis for such an award. All of the properties that they
owned were purchased for personal use and not as investment properties. Further
there was no evidence that, but for the accident, they would have purchased additional
properties. Finally, leaving aside financial considerations, the evidence did
not establish that their respective medical conditions would render them
incapable of buying and selling property.

[271]     I
therefore decline to award damages under this head.

Increased Expenses Resulting From Separation

[272]     Ms. Cheng
and Mr. Liu submit that they have incurred increased expenses from the fact
that they now live in separate residences which they say is a direct result of
the accident. They say that an award of $50,000 is reasonable in the
circumstances.

[273]     Ms. Cheng
and Mr. Liu cite Grewal v. Brar et al, 2004 BCSC 1157, where the court
awarded the plaintiff $30,000 for the possibility that her marriage might fail
as a result of the consequences of the accident. The award was in effect a
modified award for damages for loss of marriageability, a head of damages that
the courts have long recognized.

[274]    
This type of award was described by Mr. Justice Lambert of the Court of
Appeal in Reekie v. Messervey (1989), 59 D.L.R. (4^th) 481 at
494, 36 B.C.L.R. (2d) 316 (C.A.) at 330-331, as follows:

This aspect of the damage award
was called “loss of opportunity to marry” by counsel and by the trial judge. But
marriage is not the significant point. the significance lies in the loss of an
opportunity to form a permanent interdependency relationship which may be
expected to produce financial benefits in the form of shared family income. Such
an interdependency might have been formed with a close friend of either sex or
with a person with whom a plaintiff might have lived as husband and wife, but
without any marriage having taken place. Permanent financial interdependency,
not marriage, is the gist of the claim. For the sake of simplicity and
consistency, I will now usually call this head of loss: “Lost opportunity of
family income”.

[275]     Mr.
Justice Lambert went on to describe categories of loss arising under this head
of damages which are summarized by Mr. Justice Cole in Grewal as: (1)
loss of the benefit of increased income, (2) loss of the benefit of shared
expenses, and (3) loss of the benefit of shared homemaking (Grewal at
para. 157).

[276]     In Grewal,
Mr. Justice Cole rejected the defendant’s argument that this type of award was
not available to persons who, at the time of the accident, were already
involved in a marriage or inter-dependent relationship (paras. 158-159).

[277]     In the
present case, Ms. Cheng and Mr. Liu’s claim is premised on their position that
their marital separation is a result of the accident. I have found that the
accident was one of many contributing factors to the breakdown and that there
was a good likelihood that they would have separated in any event. I also note
that unlike in Grewal, there is no evidence from an economist or other
expert attempting to value the additional expenses resulting from the
separation. Nor was there evidence from Ms. Cheng and Mr. Liu outlining their
expenses pre and post-accident.

[278]     Taking all
of these factors into account, Ms. Cheng and Mr. Liu have not satisfied me that
an award under this head is warranted.

Cost of Future Care

Ms. Cheng

[279]     Ms. Cheng
submits that an award of $15,000 is reasonable to cover the cost of required
future treatments, although no attempt was made to break that figure down into
different treatment modalities.

[280]     Both
parties agree that Ms. Cheng would benefit from more focussed therapy to
address her driving phobia. ICBC’s expert, Dr. Koch, recommends 20-30 hours of
such therapy. Dr. Mok concurs with this view. While no cost estimates were
provided for such therapy, the clinical counsellors seen by both Ms. Cheng and Mr.
Liu appear to charge in the range of $175.00 per hour.

[281]     The one
other therapy that Ms. Cheng would benefit from, based on the evidence, is some
physiotherapy and pain medication for her jaw issues. Again no cost estimates
were provided for such therapies.

[282]     Taking
account of Dr. Koch’s recommendation and making some allowance for further
treatments for her jaw, I find that a reasonable award under this head for Ms.
Cheng is $6,000.

Mr. Liu

[283]     Mr. Liu submits
that an award of $10,000 for future care costs is reasonable, but again no
breakdown of these proposed costs is provided, although he states in his
submissions that he is likely to require further counselling and medications in
relation to his psychological condition.

[284]     Allowing
for 25 further counselling sessions plus some medications, I find that a
reasonable award for Mr. Liu under this head is $5,000.

Special Damages

Ms. Cheng

[285]     MS. Cheng
has submitted special costs in the amount of $5,822.93 and says that this amount
was not challenged in cross-examination.

[286]     ICBC
submits that expenses incurred up to April 2009 are properly recoverable by Ms.
Cheng and that a portion of the counselling fees incurred, that relate to her
driving phobia, are valid but it disputes any costs incurred for counselling
for other psychological conditions which it says are unrelated to the accident.
No break down was provided for the counselling costs as between the accident
and non-accident related issues.

[287]      In the
circumstances, I find that $4,000.00 is a reasonable award under this head.

Mr. Liu

[288]     Mr. Liu claims
a total of $5,760.21 in special damages and submits as well that these were not
challenged in cross-examination.

[289]     ICBC notes
that $1,400.00 of the amount claimed relates to an assessment done by Mr. Tacky
Chan for medical-legal purposes and the preparation of a report by Mr. Chan. That
report was not relied on by Mr. Liu at trial and I therefore agree with ICBC
that the cost cannot be claimed as special damages.

[290]     ICBC also
quibbles with other minor items claimed, such as $92.10 for Chinese medicine,
$165 for counselling relating to Mr. Liu’s pre-existing marital issues and
approximately $450.00 for acutherapy and reflexology, although as noted by Mr.
Liu, none of these expenses were challenged in cross-examination.

[291]     Deducting
the cost of the Chan report and making some allowance for questionable
expenses, I find that $4,000.00 is a reasonable award under this head.

Summary and Conclusion

[292]     In summary
I find that Ms. Cheng and Mr. Liu are entitled to the following:

Ms. Cheng

Mr. Liu

[293]    
Unless there are circumstances of which I am unaware, Ms. Cheng and Mr.
Liu are entitled to their costs.

“Skolrood
J.”