IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140711

Docket:  M125109

Registry:
Vancouver

Between:

Veronica Yip

Plaintiff

And

Tanya Sherrie
Saran

Defendant

Before:
The Honourable Madam Justice Adair

Reasons for Judgment

Introduction

[1]            
On January 25, 2011, the plaintiff, Veronica Yip, was involved in a
motor vehicle accident at the intersection of Lougheed Highway and Pinetree Way
in Coquitlam, B.C.  Ms. Yip was turning left onto Pinetree Way, on an advanced
green left-turn signal, when her vehicle was hit by a vehicle driven by the
defendant, who drove through the intersection.  Ms. Yip claims that, as a
result of the collision, she has suffered a variety of physical and
psychological injuries.  In addition to non-pecuniary damages, Ms. Yip seeks
compensation for past loss of housekeeping capacity and special damages.  A
claim for damages for loss of earning capacity and an in-trust claim were not
pursued at trial.

[2]            
The defendant admits that her negligence caused the collision.  She does
not dispute that Ms. Yip sustained some injuries as a result of the collision. 
However, the defendant says that, at most, Ms. Yip sustained mild to moderate
soft-tissue injuries, that any injuries are mostly resolved and that Ms. Yip
has been functioning at pre-accident levels for over two years.  The defendant
says further that the accident was not the cause of Ms. Yip’s psychological
complaints.  Finally, the defendant says that Ms. Yip failed to take reasonable
steps to mitigate her damages because she refused to follow medical advice
concerning treatment.

Background

[3]            
Ms. Yip was born in August 1951.  She is married to Mr. Tommy Yip.  They
have two adult children, a son (now 33) and a daughter (now 28).

[4]            
Ms. Yip came to Canada from Hong Kong in 1968 and graduated from high
school here.  Between 1971 and 1974, she worked at various jobs, including as a
clerk at an insurance company and a bank teller.  In 1974, Ms. Yip began
working full time for what became Canada Post.  Mr. Yip joined Canada Post in
March 1977.  Ms. Yip and Mr. Yip were married in 1978.

[5]            
After 32 years, Ms. Yip retired from Canada Post at the end of 2006, at
age 55.  Ms. Yip explained that she wanted to enjoy life, travel and take care
of her family.  Mr. Yip continued to work full time at Canada Post until
September 2012, when he also retired.

[6]            
According to Ms. Yip, one of her favourite activities was doing
volunteer work.  She explained that it allowed her both to help others and to
learn new things.  Moreover, unlike full-time employment, it left time for Ms.
Yip to care for her family and to travel.  She did some volunteer work at a community
centre and with several other organizations.  However, I would say that Ms.
Yip’s commitment to volunteer work was not very strong.

[7]            
Rather, Ms. Yip’s primary focus, particularly after she retired, was on taking
care of her family.  That was how she preferred to spend her time, and it was
something she took great pleasure in doing.  According to Ms. Yip, once she
retired she looked after everything, from basic housework and cleaning, meal
preparation and laundry for all the family members and washing the family’s
cars, to driving her daughter to and from school and work.  The family was
organized based on Ms. Yip providing all of these services, although Mr. Yip
would help with some of the chores on his days off.

[8]            
According to Ms. Yip, other favourite activities prior to the accident
were travel and ballroom dancing, an activity she shared with Mr. Yip. 
However, I did not hear about dancing from Mr. Yip.

[9]            
In 2010, the Yips sold their single family house (where the family had
lived since shortly after Ms. Yip and Mr. Yip were married) in Burnaby.  The
family moved to two adjacent townhouses that Ms. Yip and her husband purchased in
south Burnaby.  As Ms. Yip and Mr. Yip both explained, the idea was that each
of their children would be given his and her own home.  After the move, Mr. Yip
and the couple’s daughter lived in one of the townhouses, and Ms. Yip and their
son lived in the other.  However, according to both Ms. Yip and Mr. Yip, the
family members all came together for activities such as meals.

[10]        
After the move to the Burnaby townhouses, Ms. Yip continued to concentrate
on looking after the needs of her family, and she attended to virtually
everything involved in running both households.  Moreover, even though her
daughter had a driver’s licence and her own car, Ms. Yip continued to spend
considerable time driving her to school and also to her part-time job.  Ms. Yip
explained that she did this because she was concerned about her daughter
getting enough sleep, given that she was going to school and studying hard, and
because parking was expensive.  According to Ms. Yip, she went so far as to
forbid her daughter from driving herself.

[11]        
By late 2010, Ms. Yip and her husband had concluded that the two south
Burnaby townhouses were not going to be suitable long-term.  Their children did
not care for them.  One of the townhouses had been sold, and the family members
were living together in the second townhouse.  A decision was made to move to
Coquitlam, and, again, Ms. Yip and her husband were purchasing two separate homes,
one for each of their children.  This time, the units (each about 2,000 square
feet) were back-to-back, instead of adjacent.  The first unit, “No. 49,” was
ready for occupancy in February 2011.  However, the second unit, “No. 106,” was
not going to be ready until July or August 2011.  The plan was that the family
members would move from Burnaby into No. 49, and live there together until No.
106 was completed.  Then, Mr. Yip and the couple’s daughter would move to No.
106, while Ms. Yip and the couple’s son would remain in No. 49.

The Accident

[12]        
The accident occurred in the evening on January 25, 2011.  Ms. Yip was
driving her daughter’s blue Honda Civic and was in the process of moving some
belongings from the townhouse in Burnaby to No. 49 in Coquitlam, in
anticipation of the full move in early February.

[13]        
Ms. Yip was travelling eastbound and had stopped in one of the turning
lanes, in order to turn left onto Pinetree Way northbound.  Ms. Yip was behind
one other car.  When the green left-turn arrow appeared, Ms. Yip began to make
her turn.  As she recalled, she was approaching the area of the crosswalk on
Pinetree Way when her car was hit on the right side by the defendant’s car. 
Ms. Yip recalled that there was a loud bang, the car spun and she hit the left
side of her head on something.  She recalled that the car’s airbags deployed. 
She then remembers feeling pain on the whole right side of her body.  She
recalled that both of her hands lost sensation.  After the impact, and once her
car came to a stop, Ms. Yip recalled feeling very frightened and nauseated, and
as if she was unable to breathe.  Someone yelled at her to open the car door,
and she recalled hearing someone offering help.

[14]        
As Ms. Yip recalled, when she got out of the car, someone helped her
into an ambulance.  She recalled being unable to answer when she was asked her
name.  She recalled that her head, neck and the right side of her body felt
very painful.  Ms. Yip was taken to Eagle Ridge Hospital where she was
examined.  She remembers feeling very scared, and feeling that she did not know
whether or not she was going to die.

[15]        
Photographs of the blue Civic show the impact of the defendant’s car on
the right side of the Civic, and also the deployment of the car’s airbags.

After the Accident

[16]        
According to Ms. Yip, after the accident, she was a different person
entirely.

[17]        
Ms. Yip recalled that, immediately after the accident, the right side of
her body hurt the most, in particular her hip, lower back, knee and the back of
her neck.  The left side of her head also hurt.  She recalled that both
shoulders hurt, the right shoulder especially.  She said that she did not have
any sensation in her hands.  According to Ms. Yip, pain radiated all down her
lower back, and for the first six months after the accident, she had problems
sitting and could not walk for more than 15 minutes at a time.  Ms. Yip
recalled experiencing what she described as “serious dizziness.”  She said that,
for example, when she lay on her bed, she would feel as if the room was
spinning.

[18]        
According to Ms. Yip, she was also experiencing significant emotional
symptoms.  She had problems sleeping.  She had no appetite to speak of and was
feeling depressed.  She had disturbing dreams about the accident.

[19]        
In the first few weeks after the accident, Ms. Yip recalled that she had
severe headaches.  Her neck was causing her significant discomfort, and her
shoulder symptoms made it painful to perform simple tasks such as changing her clothes. 
Her family doctor prescribed some medication for the pain.  For two to three
months after the accident, Ms. Yip continued to feel pain in the area of her
right hip and lower back, and could not sit for very long.  According to Ms.
Yip, she also experienced painful symptoms radiating down her right leg to her
knee, and it was painful to stand or walk for more than 15 minutes.

[20]        
Because of the accident, the job of packing up the Burnaby townhouse and
moving to No. 49 fell primarily to Mr. Yip, although normally Ms. Yip would
have looked after it.  After the family moved into No. 49, and before Mr. Yip
and their daughter moved into No. 106, Mr. Yip did all of the household
chores.  Mr. Yip recalled that in the first few weeks after the accident, Ms.
Yip looked terrible and was taking painkillers, but she showed gradual
improvement as time went by.  According to Ms. Yip, about three to four months
after the accident, she again tried to do household chores.  However, it was a
struggle.  She needed help from Mr. Yip and from her son.

[21]        
Ms. Yip’s family doctor referred her to physiotherapy and massage
therapy.  Gradually, things improved.  Ms. Yip attended physiotherapy regularly
from February to December 2011, and massage therapy from May to August 2011. 
She also had a series of acupuncture treatments in January and February 2012.  According
to Ms. Yip, a year after the accident, she continued to have physical symptoms,
which seemed to coincide in particular with changes in the weather.  However,
her condition had improved.  Ms. Yip terminated physiotherapy and massage
therapy, and she preferred not to take medication for pain.  She decided to
rely on herself to get better.  Rather than medication, Ms. Yip found using
Tiger Balm quite helpful to manage her pain.

[22]        
According to Ms. Yip, she continued after the accident to have symptoms
of numbness or loss of sensation in her hands.  Ms. Yip says that she is no
longer able to enjoy pastimes such as knitting or reading newspapers and flyers
as a result of the symptoms in her hands.  According to Ms. Yip, after the
accident, using a full-sized vacuum cleaner also caused numbness and pain in
her hands.

[23]        
With respect to her emotional symptoms, Ms. Yip described continuing to
have disturbing dreams.  She said that, for the first two to three weeks after
the accident, she had nightmares at least two to three times a week, and she
also had flashbacks to the accident.  During her testimony, she became quite
emotional when describing how she felt at the sight of a blue car.  Ms. Yip
explained that, after the accident, if she saw a blue car, like the blue Civic
she had been driving, she became anxious and scared, and had bad dreams.  Continuing
into 2012, seeing a blue car would result in Ms. Yip having anxious feelings. 
Ms. Yip would have to take active steps to calm herself down.  At trial, she
became tearful and upset when she was asked to look at photographs of her
daughter’s blue Civic, showing damage from the accident.  She explained in her
testimony the following day that, after being shown the photographs, she had
problems sleeping.  According to Ms. Yip, for months after the accident, she
was afraid to be in a car.

[24]        
Ms. Yip’s family doctor recommended that Ms. Yip have treatment for the
emotional and psychological problems she was experiencing following the
accident.  Beginning in September 2011 and until December 2011, Ms. Yip
regularly saw a psychologist, Dr. Macy Lai, for counselling.  As Ms. Yip
recalled, she talked to Dr. Lai about her nightmares, her fear of blue cars and
other problems.  According to Ms. Yip, Dr. Lai worked with her and taught her
strategies to deal with her fearful and anxious feelings and the bad dreams. 
In December 2011, when Ms. Yip felt about 75% recovered, she decided that she
preferred to rely on herself to get better and move forward.  Ms. Yip
terminated treatment with Dr. Lai.

[25]        
However, according to Ms. Yip, her fearfulness and anxiety, and the
nightmares, came back sometime in 2012 and in 2013.  She was also depressed and
irritable.  A vacation to Hawaii that she took with Mr. Yip was not an
enjoyable experience for either of them.  As Ms. Yip recalled, she realized
that she again needed the help of a professional.

[26]        
Ms. Yip’s realization in the fall of 2013 that she could benefit from
further counselling was very likely spurred by the independent medical assessments
arranged by her lawyer in connection with this case.  In July 2013, Ms. Yip was
assessed by Dr. Jacqueline Purtzki, a specialist in physical medicine and
rehabilitation.  In October 2013, Ms. Yip was assessed by Dr. Hiram Mok, a
psychiatrist.  As I note below, both doctors recommended counselling for Ms.
Yip.

[27]        
In December 2013, Ms. Yip again contacted Dr. Lai.  She saw Dr. Lai for
six sessions, beginning in late December 2013.  Again, Dr. Lai coached Ms. Yip and
gave her strategies to help address her feelings, including her fear of driving. 
As a result of the sessions with Dr. Lai, and with the assistance of
medications prescribed by Ms. Yip’s family doctor, Ms. Yip was able to sleep
better, was feeling less pain and could again drive a motor vehicle.  At the
beginning of February 2014, Ms. Yip concluded that she no longer required
treatment from Dr. Lai and terminated the sessions.

[28]        
As of trial, Ms. Yip still experiences some physical symptoms, for
example, in her neck and back.  These seem to her to be very much dependent on
the weather.  She continues to use Tiger Balm to manage pain symptoms.

Expert Evidence

[29]        
I had the benefit of opinion evidence from two medical doctors:  Dr.
Purtzki and Dr. Mok.  Both Dr. Purtzki and Dr. Mok prepared reports and gave
oral evidence.

[30]        
The defendant did not tender any opinion evidence.

[31]        
Dr. Purtzki carried out her assessment of Ms. Yip on July 4, 2013.

[32]        
In her report, Dr. Purtzki noted “Pertinent Examination Findings” from
her interview and physical examination of Ms. Yip, which included the following:

(a)      during
Dr. Purtzki’s interview with Ms. Yip, Ms. Yip was “extremely anxious and, at
times, tearful admitting to feeling quite hopeless and depressed due to the
pain and ongoing disability”;

(b)      Ms.
Yip had significant “allodynia,” i.e., feeling a non-painful stimulus as
painful and “hyperalgesia,” i.e., feeling mildly uncomfortable stimulus as very
painful; and

(c)      certain
tests and examinations could not be performed because Ms. Yip was both
apprehensive of Dr. Purtzki moving parts of her body and also reported pain.

[33]        
In Dr. Purtzki’s oral evidence, she described Ms. Yip as “probably one
of the most anxious patients,” and reported that, despite using techniques designed
to distract a patient during examination and make the patient feel comfortable,
she had real difficulty getting Ms. Yip to be relaxed.  Dr. Purtzki indicated
that it was quite difficult to make objective findings for Ms. Yip (for
example, concerning restrictions in range of motion) because Ms. Yip resisted
Dr. Purtzki’s passive movement of parts of Ms. Yip’s body, fearing pain.

[34]        
In Dr. Purtzki’s opinion, Ms. Yip “now has severe depression and severe
anxiety with even latent suicidal thoughts.  . . .  She appears to be
completely paralyzed by fear of ongoing pain and hopelessness.”  Dr. Purtzki’s
recommendation in this regard was that Ms. Yip required an urgent assessment by
a psychiatrist and the initiation of medications, and she said that “this is
one of the very important interventions that need to be done first before we
can address her physical disabilities effectively.”  Dr. Purtzki also
recommended counselling by a psychologist in addition to medication.

[35]        
Dr. Purtzki concluded that Ms. Yip may have suffered a concussion at the
time of the impact in the accident.  She noted that Ms. Yip’s description of
the symptoms of vertigo, a spinning feeling and nausea, especially initially,
is very characteristic of a vestibular concussion, which can be part of a
concussion.  However, she also noted that these symptoms seemed mainly to have
resolved.

[36]        
In Dr. Purtzki’s opinion Ms. Yip “has a very severe chronic persistent
pain disorder with significant hyperalgesia and allodynia.”   Dr. Purtzki noted
that “In fact, a good physical examination was not possible because of her guarding
and pain sensitivity.”  Dr. Purtzki commented that the “pain itself is now one
of the primary disabilities quite separate from any additional physical
disabilities.”

[37]        
Dr. Purtzki concluded that, physically, Ms. Yip suffered a right
sacroiliac joint strain with ongoing sacroiliac joint dysfunction.  Dr. Purtzki
believed that, because of the sacroiliac joint injury, Ms. Yip had a painful
abnormal gait, and that weakness in muscles on the right side of the body was
leading to adjustments that were causing Ms. Yip further pain.  In Dr.
Purtzki’s opinion, Ms. Yip’s neck pain was likely the result of a soft tissue
injury, and she described Ms. Yip’s headaches as “likely cervicogenic in
nature, meaning that they are triggered by a painful area in the upper neck.”

[38]        
In terms of general treatment recommendations, Dr. Purtzki said that Ms.
Yip’s mood symptoms and the generalized central pain should be addressed first,
including with ongoing psychological counselling and support.  With respect to
the prognosis, Dr. Purtzki said:

Prognosis for resolution of pain after this duration is quite
poor, certainly less than 50%.  Given Ms. Yip’s track record of being quite
enduring and likely having quite a bit of personal strength, I am hoping that
she will be able to commit to a therapy program and experience some benefit, which
would then motivate her to carry on in that direction.  . . .

[39]        
Dr. Mok examined Ms. Yip on October 16, 2013.  The documents he reviewed
in preparing his report included Dr. Purtzki’s expert report.  Dr. Mok
diagnosed Ms. Yip as having “Chronic Pain Disorder” (associated with
psychological factors and a general medical condition), post-traumatic stress
disorder, major depressive disorder and post-MVA driving-related anxiety.  He
expressed the opinion that these were a “direct result” of the accident, noting
that there were “no pre-existing emotional difficulties.”  He deferred to other
medical experts with respect to Ms. Yip’s physical prognosis.  Dr. Mok
recommended that Ms. Yip be referred to a Cantonese-speaking clinical
psychologist for individual psychotherapy, and he believed that she would require
at least another ten sessions.

[40]        
In fact, as I noted above, Ms. Yip accepted the recommendations that she
receive further counselling, and attended another series of sessions with Dr.
Lai.

Findings and Conclusions concerning Ms. Yip’s Injuries

[41]        
The defendant does not dispute that Ms. Yip suffered mild to moderate
soft tissue injuries as a result of the accident.  The defendant says however
that Ms. Yip’s injuries are mostly resolved and she has been functioning at her
pre-accident levels for about two years.  With respect to Ms. Yip’s
psychological complaints, including her anxiety and depression, the defendant
says Ms. Yip has failed to show that these were caused by the accident, and
argues that Ms. Yip would have had these problems even if the accident had not
occurred.

[42]        
At this point, I am going to comment briefly on the witnesses,
especially Ms. Yip.

[43]        
I heard from four witnesses:  Ms. Yip, her husband, Mr. Yip, and the two
experts.

[44]        
Ms. Yip’s credibility and reliability are, of course, important, since
her case involves subjective complaints of pain.  Indeed, as a result of Ms.
Yip’s subjective complaints of pain, Dr. Purtzki was unable to do a complete
physical examination.

[45]        
Although Ms. Yip was pressed on some points in cross-examination, in
closing submissions, Ms. Barnes (counsel for the defendant) did not seriously
challenge Ms. Yip’s credibility, although her reliability in some areas (for
example, estimating hours spent doing housework) was challenged.

[46]        
On cross-examination, Ms. Yip had a tendency to resist agreeing with
what seemed to be obvious propositions (for example, that she missed and was
worried about her son, who was in the Canadian military and serving in
Afghanistan for a period of time).  At times during her cross-examination, Ms.
Yip was argumentative, evasive and defensive, especially if she perceived an
answer might hurt her case (for example, when she was testifying about an
accident with a Ford truck).  She demonstrated a poor memory for dates of
trips.  Documents generally did not refresh her memory, which was somewhat
unusual.  Her evidence that there was nothing better than having the whole
family together seemed at odds with the living arrangements the family adopted
(with Ms. Yip and her husband living in separate places) after the sale of the
single-family home in Burnaby.

[47]        
On the other hand, Ms. Yip had little difficulty agreeing with Ms.
Barnes about her reasons for terminating physiotherapy and terminating her
counselling sessions with Dr. Lai, even though this was not necessarily
favourable to her case.

[48]        
As is apparent from Dr. Purtzki’s evidence, she was unable to perform a
full physical examination of Ms. Yip because of Ms. Yip’s subjective
complaints, and fear, of pain.  Therefore Dr. Purtzki was unable to say what,
objectively, Ms. Yip’s physical condition and limitations, related to the
accident, might be.

[49]        
Based on my own observations of Ms. Yip during her time in the witness
stand, I would say that when she was asked to focus on her physical symptoms
and emotional problems following the accident, she probably reported accurately
both the symptoms of pain, and the emotional and psychological difficulties,
that she experienced following the accident.  Ms. Yip became quite emotional
and tearful when relating events concerning the accident and its aftermath, indicating
to me that she is still affected by those events.

[50]        
However, when Ms. Yip’s attention and concentration were directed
elsewhere, she appeared quite different.  I noticed this especially during Ms.
Yip’s cross-examination, when she was quite animated, including physically
animated.  I observed that Ms. Yip often gestured with her arms and hands to
make her points and to describe events (such as what Ms. Yip clearly considered
to be a very minor collision with the Ford Truck).

[51]        
Although (as Dr. Purtzki described) Ms. Yip’s reaction to both
non-painful and mildly uncomfortable stimuli was exaggerated and not normal,
there is an explanation, namely, that Ms. Yip developed a chronic pain disorder
as a result of injuries suffered in the accident.  In my opinion, this
explanation is consistent with Ms. Yip’s presentation and her evidence at
trial.

[52]        
Ms. Yip’s testimony and that of Mr. Yip are, generally, consistent with
one another.  Mr. Yip’s credibility was also not seriously challenged.  On the
whole, I accept that Ms. Yip was being truthful in relating how the accident
has affected her, and how her life is different now as compared with before the
accident.

[53]        
Next, because, based on Ms. Barnes’ submissions, causation is an
important aspect of the case from the defendant’s perspective, I will set out
some basic principles as context for my findings and conclusions.

[54]        
For a plaintiff to recover damages in tort, the plaintiff must show on a
balance of probabilities that “but for” the defendant’s negligent act, the
injury would not have occurred.  Inherent in the phrase “but for” is the
requirement that the defendant’s negligence was necessary to bring about the
injury – in other words, that the injury would not have occurred without the
defendant’s negligence.  See Clements v. Clements, 2012 SCC 32,
at paras. 8 and 13, and Resurfice Corp. v. Hanke, 2007 SCC 7, at
para. 23.

[55]        
However, it is not necessary for the plaintiff to establish that the
defendant’s negligence was the sole cause of the injury.  As long as a
defendant is part of the cause of the injury, the defendant is liable, even
though the defendant’s act alone was not enough to create the injury.  See Athey
v. Leonati, [1996] 3 S.C.R. 458, at paras. 13-17.  The plaintiff is to
be placed in the same position she would have been in, if not for the
defendant’s negligence.

[56]        
The corollary of this principle is that the defendant need not
compensate the plaintiff for any loss not caused by the defendant’s negligence
or for “debilitating effects of [a] pre-existing condition which the plaintiff
would have experienced anyway”:  see Athey, at para. 35, and Yoshikawa
v. Yu (1996), 21 B.C.L.R. (3d) 318, 1996 CanLII 3104 (C.A.), at paras.
14-16 (regarding causation of psychological injury).

[57]        
Moreover, one must be cautious when being asked to infer a causal
connection between negligent conduct and damage based primarily on a temporal
relationship:  see Gilbert v. Bottle, 2011 BCSC 1389, at para. 62
(citing White v. Stonestreet, 2006 BCSC 801, at paras. 74-75).

[58]        
The plaintiff must establish causation for both injury and loss. 
“Injury” refers to the initial physical or mental impairment suffered by the
plaintiff as a result of the defendant’s act.  “Loss” refers to the pecuniary
or non-pecuniary consequences of that impairment.  See, for example, Blackwater
v. Plint, 2001 BCSC 997, at para. 364.  If a defendant did not cause an
injury, he or she is not liable for losses flowing from that injury.  Even if a
defendant did cause an injury, he or she is not liable for any losses or
damages that were not caused by that injury.

[59]        
I find that, as a result of the accident, Ms. Yip sustained mild to
moderate soft tissue injuries to her neck and shoulder area (primarily, but not
exclusively, on the right), her back (especially her low back and in the area
of the sacroiliac joint), and her right leg and knee.  She also had symptoms of
loss of sensation in her hands.  I find that, when the defendant’s vehicle hit
Ms. Yip’s car, the impact caused Ms. Yip to hit the left side of her head, and
based on the symptoms of dizziness and the spinning feeling that Ms. Yip
described, I think it likely that, as a result, she suffered a vestibular
concussion (as described by Dr. Purtzki in her report) and headaches.  Moreover,
I find that, as a result of the collision, Ms. Yip was very deeply frightened
and feared for her life.

[60]        
I find that, immediately following the accident, and for a period of
some months thereafter, Ms. Yip experienced considerable pain from her soft
tissue injuries, and dizziness and discomfort from the effects of her
concussion.  However, the concussion-related symptoms eventually resolved. 
Emotionally, the accident left Ms. Yip feeling unusually anxious, and she also experienced
nightmares and disturbed sleep as a result of the accident.  Her anxiety
extended to driving and travelling as a passenger in a car.  For a period of
time, she was unable to drive as a result.

[61]        
Moreover, I find that Ms. Yip’s home and family life was affected as a
result of the accident.  Ms. Yip was unable to care for family members and look
after the Yips’ household in the way that she had done prior to the accident. 
She required help performing household chores such as cooking, washing dishes
and dusting.  She was unable, as a result of her physical injuries, to do
heavier chores such as vacuuming.  I find that, as a result, Ms. Yip became
depressed and anxious about her circumstances.

[62]        
As a result of her physical injuries and related symptoms, Ms. Yip was
referred by her family doctor for, and attended, physiotherapy, massage therapy
and acupuncture.  To address Ms. Yip’s psychological and emotional symptoms
(including her nightmares, post-traumatic stress, fear of driving and
depression), she was referred for and attended counselling with Dr. Lai.  Ms.
Yip also took medication prescribed for her.

[63]        
Then, in the first part of 2012 (about a year after the accident), Ms.
Yip terminated her treatments and decided she preferred to go forward on her
own and rely on her own resources.  Indeed, by her own estimate, Ms. Yip was
75% recovered.  I see this as an indication of some stoicism on Ms. Yip’s part. 
I find that, by this time, Ms. Yip had substantially recovered from the physical
injuries suffered in the accident.  However, I find that she was still
experiencing some pain symptoms and some limitations in her pre-accident
ability to care for her family.

[64]        
I find further that, as a result of Ms. Yip’s efforts to cope on her own
and rely on herself, some of her symptoms and, in particular, her pain and her
emotional and psychological symptoms, worsened, rather than continuing to
improve, and Ms. Yip developed a chronic pain disorder.  I find that this was
the state of affairs when Ms. Yip was examined by Dr. Purtzki in July 2013 and
by Dr. Mok in October 2013.  As of the fall of 2013, Ms. Yip was continuing to
have pain symptoms, although the extent of her actual physical limitations
could not be determined because of Ms. Yip’s fear of exacerbating her pain.  This
was an aspect of her pain disorder.

[65]        
However, as recommended by both Dr. Purtzki and Dr. Mok, Ms. Yip
followed up with further treatment with Dr. Lai and took the medications
prescribed for her by her family doctor.  By the time the sessions with Dr. Lai
ended in February 2014, Ms. Yip was able to sleep better and no longer had
nightmares, was feeling less pain and was able again to drive.

[66]        
I find that as of trial, Ms. Yip was continuing to experience some pain
and limitations in her activities, including activities around her household. 
However, Ms. Yip determined for herself that she was able to manage on her own,
without the need for further treatment or medication, apart from using Tiger Balm
occasionally to relieve pain.

[67]        
With respect to Ms. Yip’s emotional and psychological issues, I think it
is fair for Ms. Barnes to point out that, before the accident, Ms. Yip was an
anxious person, in support of her argument that Ms. Yip’s problems after the
accident were not caused by the defendant’s negligence, but are problems Ms.
Yip would likely have had in any event.  It is also fair for Ms. Barnes to
point out that, after the accident, there were other things – for example, the
Yips’ unusual living arrangements, and concern about her children – that could
or might account for Ms. Yip’s depression and other psychological symptoms.

[68]        
However, Ms. Barnes did not put these alternative theories for Ms. Yip’s
problems to Dr. Mok, as explanations (other than the accident) for his
diagnoses.  Dr. Mok was not asked, for example, whether, if he had known about
Ms. Yip’s family situation, it would have affected his diagnosis or his opinion
on causation.

[69]        
I think it can be said that, even before the accident, Ms. Yip exhibited
signs (e.g., forbidding her daughter to drive, and driving her everywhere
herself) of being an overly anxious person.  Feelings of anxiety are a normal
part of life, and an individual cannot expect to be compensated for feelings
she would have felt in any event, even if the accident had not occurred.

[70]        
However, in my opinion, Ms. Yip’s driving-related anxiety, and her
depression and hopeless feelings after the accident, would not have occurred
but for the accident.  Her depression, for example, was a consequence of the
circumstances in which she found herself after the accident:  in pain and
unable to care for her family.  Therefore, I do not agree with Ms. Barnes’
submissions that Ms. Yip has failed to prove, on a balance of probabilities,
that her psychological and emotional problems after the accident were a result
of the accident.  In my opinion, Ms. Yip has proved this.

Non-pecuniary Damages

[71]        
The purpose of non-pecuniary damages is to compensate the plaintiff for
pain, suffering, loss of enjoyment of life and loss of amenities.  The amount
of the award does not depend alone on the seriousness of the injury but upon
the award’s ability to ameliorate the condition of the injured person,
considering his or her particular situation:  see Stapley v. Hejslet,
2006 BCCA 34, at para. 45.  The factors to be taken into account include:  the
plaintiff’s age; the nature of the injury; the severity and duration of pain;
disability; emotional suffering; impairment of family, marital and social
relationships; impairment of physical abilities; loss of lifestyle; and the
plaintiff’s stoicism (a factor that should not, generally speaking, penalize
the plaintiff).  See Stapley, at para. 46.

[72]        
On behalf of Ms. Yip, Mr. Chang submits that the appropriate range of
non-pecuniary damages is between $50,000 and $70,000.

[73]        
In support of his position, Mr. Chang cites the following cases: Pisani
v. Pearce, 2012 BCSC 1118 (20-year old plaintiff suffered soft tissue
injuries to her neck, shoulder, back and hip; the hip problem prevented her
from enjoying activities, there were continued flare-ups and no evidence that
the  problem would resolve; non-pecuniary damages of $80,000 awarded); Macdonald
v. Hazel, 2012 BCSC 2079 (the plaintiff was injured in a broadside
collision, and suffered headaches, left-sided neck pain, low back pain, pain in
hip and sacroiliac area; there was some improvement but her hip symptoms
continued; non-pecuniary damages of $80,000 awarded); Kim v. Morier,
2013 BCSC 673 (the plaintiff was injured in two accidents and left with ongoing
pain in her hip and low back, as well as mild ongoing disability; non-pecuniary
damages of $55,000 awarded); and DeGuzman v. Ge, 2013 BCSC 1450
(the plaintiff suffered soft tissue injuries; pain symptoms were reduced by
trial, but she continued to have symptoms affecting activities and work;
non-pecuniary damages of $50,000 awarded).

[74]        
On behalf of the defendant, Ms. Barnes submits that the appropriate
range of non-pecuniary damages is between $35,000 and $40,000.  The cases cited
by Ms. Barnes included Bern v. Jung, 2010 BCSC 730 (plaintiff was
involved in two accidents; in the first he suffered rib fracture and fracture
of one of the bones in his hand, facial trauma that required dental surgery,
and also experienced some psychological and emotional problems; he suffered
soft tissue injuries in the second accident and aggravated problems he was
having as a result of the first accident, adding to his depression and anxiety;
plaintiff was continuing to have physiotherapy as of the trial; non-pecuniary
damages of $50,000 awarded); Bissonnette v. Horn, 2012 BCSC 518 (plaintiff,
36 at the time of the accident, suffered soft tissue injuries, including neck,
back and hip pain, headaches, a dental injury and emotional problems
(especially anxiety); as of trial, she continued to suffer left hip pain,
headaches and some numbness in one hand; she was taking medication daily;
prognosis was guarded; non-pecuniary damages of $50,000 awarded); and Brown
v. Raffan, 2013 BCSC 114 (plaintiff, 44 years old when the accident
occurred, suffered significant soft tissue injuries to her face, spine, right
shoulder and both knees, a dental injury and a concussion; court was not
satisfied that the plaintiff had proved she suffered any significant
psychological injury as a result of the accident; as of trial, plaintiff
continued to suffer from headaches, anxiety, knee pain and also had some
scarring on her right elbow and knee; non-pecuniary damages of $35,000 awarded).

[75]        
As a result of the accident, Ms. Yip sustained mild to moderate soft
tissue injuries and a concussion (with related, disturbing symptoms, as well as
headaches).  Moreover, the accident was a terrifying experience for Ms. Yip. 
She developed psychological and emotional problems as a result.  However, she
accepted treatment, with positive results.  Things that were very important to
Ms. Yip and that gave her life meaning – her family and her ability to take
care of them – were very much affected as a result of the accident.  In
addition, activities such as travel, which she had looked forward to doing once
she retired, were and are no longer enjoyable for her.  Her stoicism, and her
desire to try and manage on her own, is not something that should count against
her.

[76]        
In my opinion, a fair award for non-pecuniary damages is $55,000.

Loss of Housekeeping Capacity

[77]        
Ms. Yip seeks an award of between $20,000 and $25,000 for lost
housekeeping capacity.

[78]        
On behalf of Ms. Yip, Mr. Chang submits that, on the evidence, after Ms.
Yip retired in 2006, she planned on doing the bulk of the housekeeping tasks
for the family.  When the family members moved from the single family house to
the Burnaby townhouses, the plan was that Ms. Yip would provide all the
housekeeping (including meals and laundry) for both households, with Mr. Yip
helping out on his days off.  Based on Ms. Yip’s and Mr. Yip’s evidence, this
was the arrangement in place at the time of the accident.  When the accident occurred,
the family members were in the process of moving to Coquitlam, and the plan in
that regard was that, as Ms. Yip had done in Burnaby, she would provide all of
the housekeeping for both households, with Mr. Yip again helping out.

[79]        
Mr. Chang submits that, on the evidence, Ms. Yip spent over 57 hours per
month doing housework at the Burnaby residences prior to the accident.  He says
that, as a result of Ms. Yip’s injuries, she lost the ability to perform work
of economic value and the other family members had to take on the housekeeping
tasks that Ms. Yip otherwise would have done.  Mr. Chang submits that Ms.
Yip’s time should be valued at $15 per hour.  Thus, from the date of the
accident, until Mr. Yip’s retirement at the end of September 2012 (when he was
able to take on more of the housekeeping), the value of Ms. Yip’s time is
$17,250 (57.5 hours per month multiplied by 20 months at $15 per hour).  Mr.
Chang submits that after September 2012, Ms. Yip would only have been responsible
for housekeeping in No. 49 (since Mr. Yip would have been in a position to look
after Unit 106 himself after his retirement).  Therefore (in his submission),
Ms. Yip’s loss of housekeeping capacity from October 2012 to trial is $8,193
(28.75 hours per month multiplied by 19 months at $15 per hour).

[80]        
On behalf of the defendant, Ms. Barnes submits that no award should be
made for loss of housekeeping capacity.  She argues that Ms. Yip is not a reliable
witness in terms of estimating the number of hours she was spending on various
tasks, and that there is no evidence of the dollar value of what Ms. Yip was
doing.  Ms. Barnes submits in addition that Ms. Yip had taken on work that was
not her responsibility in the first place, and the defendant should not be
required to compensate Ms. Yip for loss of capacity to do such work.

[81]        
Awards for loss of housekeeping capacity may be made for either past or
future losses, or both:  see Kroeker v. Jansen (1995), 123 D.L.R.
(4th) 652, 1995 CanLII 761 (B.C.C.A.), at para. 25.  (Here, Ms. Yip seeks an
award for past losses only.)  Such claims are different from a future cost of
care claim in that they reflect a loss of a personal capacity and are not
dependent on whether replacement housekeeping costs are actually incurred:  see
O’Connell v. Yung, 2012 BCCA 57, at para. 67.  An award ordered
for loss of housekeeping capacity is for the value of the work that would have
been done by the plaintiff but which he or she is incapable of performing
because of the injuries at issue.  A claim in respect of loss of housekeeping
capacity is also distinct from a claim for non-pecuniary damages.  Even though
the claim is not dependent on whether replacement housekeeping costs are
actually incurred, it is frequently valued using a replacement cost approach.

[82]        
However, any award should be approached conservatively:  see Kroeker,
at para. 29.

[83]        
Ms. Yip’s personal satisfaction in being able to look after her family
is separate from her claim for loss of housekeeping capacity.  To the extent
that injuries suffered in the accident affected her ability to engage in an
activity that Ms. Yip enjoyed and gave her personal satisfaction, the
compensation is by way of non-pecuniary damages.

[84]        
I do not agree with Ms. Barnes’ general submission that there is no
basis for an award of damages for loss of housekeeping capacity.  I find that,
as a result of the injuries Ms. Yip suffered in the accident, she suffered a
loss of housekeeping capacity.  There were chores – vacuuming, for example –
that were hard for Ms. Yip to manage physically.  Even performing more simple
tasks such as cooking a meal and washing dishes resulted in symptoms for Ms.
Yip.  Mr. Yip (both before and after he retired) and their son took up some of
the slack while Ms. Yip was recovering.

[85]        
However, in my view, the level of housekeeping services Ms. Yip was
providing gratuitously to the other family members before the accident does not
provide a reasonable basis to assess Ms. Yip’s claim for damages for loss of
housekeeping capacity.  I say this for several reasons.

[86]        
The Yip family had never been a traditional family in the sense that Ms.
Yip (as wife and mother) took on the role of homemaker and Mr. Yip (as husband
and father) took on the role of breadwinner.  Rather, both Ms. Yip and Mr. Yip
worked full-time throughout their marriage.  This background would be part of
the usual “give and take” among family members, against which Ms. Yip’s claim
for loss of housekeeping capacity should be assessed.  As of January 2011, when
the accident occurred (and for some time before that), all of the family
members were adults.  They were capable of looking after themselves and
contributing to the running of the household, also as part of the usual “give
and take” between family members.  There was no demonstrated need for Ms. Yip
to undertake all of the housework she was doing before the accident.  For
example, the residences (including both No. 49 and No. 106) came equipped with
dishwashers.  However, Ms. Yip preferred that dishes be washed by hand for
environmental reasons, even though that required extra time and effort.  Washing
dishes by hand is a personal preference, not a factor in support of a claim for
damages for loss of housekeeping capacity.

[87]        
In that light, the time Ms. Yip was spending on housekeeping and chores
after she retired, even accepting her estimates as reasonably accurate, is
inflated well beyond what is reasonable.  Her estimates assume that, but for
the accident, other adults living in the household would not contribute any
time or effort to making sure necessary chores (laundry, washing dishes,
cooking, vacuuming, mopping floors, washing the family cars and so on) were
done.  Ms. Yip has been living in No. 49 with her son, who is in his early 30s
and gainfully employed in a responsible job.  I do not consider it reasonable
to assume that, but for the accident and living in a home purchased for him by
his parents, Ms. Yip’s son would treat his mother as an unpaid housekeeper, and
do nothing around the house himself.  However, that is the basis on which I am
being urged to assess Ms. Yip’s damages.

[88]        
In the circumstances in which Ms. Yip was living, I believe that between
20 to 25 hours of housework a month would be reasonable.  This is in the range
of what Mr. Chang says was being spent on housekeeping after Mr. Yip retired. 
I accept Mr. Chang’s rate of $15 per hour.  Assuming 20 hours per month for 39
months at $15 per hour, the compensation would be $11,700.  Assuming 25 hours
per month over the same period, the amount would be $14,625.  Moreover,
although Ms. Yip had some loss of housekeeping capacity, she was still able to
do some household chores.

[89]        
In my opinion, a fair award for Ms. Yip’s loss of housekeeping capacity,
consistent with the principles described above, is $10,000.

Special Damages

[90]        
Special damages are agreed as presented in Ex. 1, except for the
chiropractic treatments in 2013.  There was insufficient evidence to support
the conclusion that these expenses were incurred as a result of the accident.  Ms.
Yip is also entitled to compensation for mileage, however the mileage for the
chiropractic treatments should be deleted.  I will leave counsel to do the
final calculation of the mileage expenses.  I therefore award Ms. Yip special
damages in the sum of $7,215.32 plus the appropriate mileage expenses.

Mitigation

[91]        
Ms. Barnes submits that Ms. Yip’s damage award should be reduced by 30%
on the basis that she failed to mitigate her damages.  Ms. Barnes argues that Ms.
Yip terminated treatment in early 2012, but then suffered for almost another
two years, before she went back to see Dr. Lai at the end of December 2013. 
The renewed treatment with Dr. Lai yielded good results.  What this shows, in
Ms. Barnes’ submission, is that if Ms. Yip had continued treatment in 2012,
instead of terminating it, she could have recovered much sooner.

[92]        
The test for a failure to mitigate by refusing to undergo medical
treatment is summarized in Fox v. Danis, 2005 BCSC 102, aff’d
2006 BCCA 324, as follows (at paras. 35 and 37):

[35]      There is no dispute
that every plaintiff has a duty to mitigate his/her damages, and that the
burden of proving a failure to fulfil that duty rests with the defendant, the
standard of proof being the balance of probabilities: Janiak v. Ippolito,
[1985] 1 S.C.R. 146.

. . .

[37]      To succeed . . ., the Defendants must establish, on
the balance of probabilities, that the Plaintiff failed to undertake this
recommended treatment; that by following that recommended treatment she could
have overcome or could in the future overcome the problems; and that her
refusal to take that treatment was unreasonable: Janiak v. Ippolito,
supra and Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d)
131 (C.A.).

[93]        
However, in this case, there was no evidence that a medical doctor
recommended a particular treatment and that Ms. Yip failed, unreasonably, to
follow it.  Rather, in my view, the evidence is consistent with Ms. Yip
following medical advice.  That is what she did in 2011; that is what she did
in 2013, when more recommendations were made.  Moreover, the evidence does not
support the conclusion that when, in early 2012, Ms. Yip decided to see how she
could do on her own, she was acting either unreasonably or contrary to medical
advice she had received.  Perhaps Ms. Yip might have been better off, for
example, to continue therapy with Dr. Lai into 2012.  But whether she probably
would have been better off is speculation.

[94]        
In my opinion, the defendant has failed to show that Ms. Yip failed to
mitigate her damages.

Summary

[95]        
In summary, I award Ms. Yip:

(a)      non-pecuniary
damages of $55,000;

(b)      damages
of $10,000 for loss of housekeeping capacity; and

(c)      special
damages of $7,215.32 plus the appropriate mileage expenses, in accordance with
these reasons.

Ms. Yip is also entitled to interest pursuant the Court
Order Interest Act, R.S.B.C. 1996, c. 79.

[96]        
Subject to any submissions the parties may wish to make, Ms. Yip is also
entitled to her costs, taking into account that this action is subject to Rule
15-1.  If the parties wish to make submissions on costs, they are at liberty to
do so within 30 days of these reasons.  Submissions may be made in writing or
orally, as the parties prefer.

“Adair
J.”