IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140717

Docket: M126980

Registry:
Vancouver

Between:

Xiao Jia Yang

Plaintiff

And

Jin Engen

Defendant

Before:
The Honourable Mr. Justice Davies

Subject
to Rule 15-1

Reasons for Judgment

I.                
INTRODUCTION

[1]            
The plaintiff, Xiao Jia (Jessie) Yang, was a backseat passenger in the
family car driven by her husband in Burnaby, B.C., on the rainy night of April 14,
2011, when it was struck by a vehicle driven by the defendant, Jin Engen, in
the middle of an intersection in which Ms. Yang’s husband had the right of
way.

[2]            
Ms. Yang suffered moderate soft tissue injuries to her neck and
both upper and lower back as well as an injury to her right index finger all of
which have continued to cause her pain and suffering for the three years prior
to trial.

[3]            
In addition to those physical injuries she has, since the collision
suffered serious and ever-increasing emotional difficulties and mood disorders.

[4]            
She seeks substantial damages for her physical and psychological
injuries, all of which she claims were caused by the defendants’ negligence in
causing the collision.

[5]            
The defendant has admitted liability for her negligence in causing the
collision.

II.              
ISSUES

[6]            
Ms. Yang seeks compensation for her alleged damages arising as a
consequence of the defendant’s admitted negligence comprised of claims for:

1)    Non-pecuniary
damages for pain and suffering and loss of enjoyment of life;

2)    Damages for past
wage loss;

3)    Damages for loss
of future earning capacity;

4)    Damages for cost
of future care; and

5)    Special damages.

[7]            
Although she has admitted liability for her negligence in causing the
collision, the defendant defends Ms. Yang’s claims for damages on the
bases that they are excessive and that the psychological issues now affecting Ms. Yang’s
well-being are not causally connected to the collision.

III.            
BACKGROUND

A.             
Personal Circumstances

[8]            
Ms. Yang is a 42-year-old accountant who was born in Shenyang,
China. She immigrated to Canada in October of 2000 and is now a Canadian citizen.

[9]            
Ms. Yang is married to Jiang Nan (Johnny) Peng, a self-employed building
inspector and they have one child, their son Evan, who is now seven years old.

[10]        
Ms. Yang works as a financial reporting manager for Imperial
Parking Canada (“Imperial Parking”) and is fluent in English. She has both Bachelor’s
and Master’s university degrees earned in China and became qualified as a Certified
General Accountant in British Columbia after obtaining a Diploma in Accounting
from the University of British Columba.

[11]        
She earns in excess of $65,000 per year and is the primary breadwinner
in the family.

B.             
The Collision and Immediate Aftermath

[12]        
On Thursday, April 14, 2011, Mr. Peng picked up Ms. Yang from
a SkyTrain station in Burnaby. As I will later discuss, Ms. Yang had been
in a previous collision which had resulted in her being afraid to drive herself,
and she regularly took public transit as her primary mode of transportation.

[13]        
When her husband picked her up, Evan (then aged four), was already
seated in the back seat of the vehicle in a car seat and Ms. Yang sat
beside him and secured herself with a seatbelt.

[14]        
When the collision occurred, Ms. Yang saw the defendant’s vehicle coming
toward them just before the impact in which the defendant’s vehicle struck the
left front of the car driven by Mr. Peng with sufficient force that its
airbags deployed.

[15]        
Ms. Yang testified that she screamed before the collision and felt
helpless and upon impact felt stunned. She believed she smelled smoke and,
together with her husband, removed her son from the car in a panic and went to
a nearby sidewalk. Mr. Peng called 9-1-1.

[16]        
Although police and ambulance attendants attended the scene, Ms. Yang
had no recall of talking to either.

[17]        
After the ambulance arrived at the scene, Ms. Yang, Mr. Peng
and Evan, as well as the defendant, were taken in it to Burnaby General
Hospital.

[18]        
The damaged vehicles were left at the scene of the collision.

[19]        
Ms. Yang testified that immediately after the collision her legs
were sore from being hit by the rear view mirror that flew off the windshield
of her husband’s car, and that she has left shoulder and arm pain from striking
her son’s car seat. She also noticed pain in her neck and back, as well as in
her right index finger. She slept poorly that night with pain throughout her
body.

[20]        
From the hospital Ms. Yang called her employer and told her she
could not work the next day. She was released from the hospital that evening
and returned to her home where she spent the next day and the weekend before
going to see her family doctor, Dr. Julie Nguyen, the following Monday.

[21]        
Dr. Nguyen has married since the collision. She testified at trial as
Dr. Julie Lacuna and, to avoid any confusion, in these reasons I will
refer to her as Dr. Lacuna.

C.             
The Progress of Ms. Yang’s Injuries and Prognosis for Recovery

[22]        
Dr. Lacuna delivered an opinion dated November 20, 2013, based upon her
observations and treatment of Ms. Yang from April 18, 2011 until
August 28, 2013. She also testified at trial and her clinical records for
the dates covered by her report, as well as for one other attendance upon Ms. Yang
on January 24, 2014 (approximately four months before trial) were also in
evidence.

[23]        
My review of Dr. Lacuna’s report, as well as her clinical records and
testimony, satisfies me that I can safely rely on that evidence as accurately
recording the progress of the injuries Ms. Yang reported to her and also
the medical intervention Dr. Lacuna deemed appropriate for the treatment
of those injuries.

[24]        
As will be seen from my review of the progress of those injuries and as
noted in the introduction to these reasons, while the physical injuries Ms. Yang
suffered in the collision were primarily soft tissue injuries of moderate
severity, by far the more severe impact upon her overall health and future
well-being arose from the serious emotional difficulties and the debilitating emotional
and mood disorders she says were caused by the defendant’s negligence.

[25]        
Concerning Ms. Yang’s first attendances in her office in the week
after the collision (April 18 and 21, 2011), Dr. Lacuna wrote:

Presenting complaints (within first week of MVA)

–  Mrs.
Yang reported progressive pain and stiffness in her shoulders and back, worse
on the right side.

–           She also
described left arm and shoulder pain, caused by hitting the car seat during
impact. This pain radiated to her upper chest. She had pain in her chest with
deep inspiration.

–           She
noticed cold and numbness from her forearm to right index finger.

–           She
reported pain in her right hip and posterior right leg. She had bruises on her
lower legs.

–           Prior to
the MVA, she had no history of chronic neck or back problems.

–           Mentally,
Mrs. Yang reported feeling more anxious, depressed, scared, and hypervigilant
since the accident.

–           She
reported ‘shaking’ when having to cross an intersection.

–           She
reported nightmares and flashbacks, as well as difficulty concentrating and
word finding.

–           She
had stopped driving 5 years previous, after being involved in another MVA. She
had been using public transit since without any problems. She did not have any
history of anxiety or post-traumatic stress disorder. She had never been on any
medications for mental health.

Examination
findings

In the first week
following the MVA, I noted:

–           yellowish-purple
bruise to left upper arm

–           bluish
bruises approximately 3cmx4cm each on both front lower legs

–           right
index finger swelling at the proximal interphalangeal joint; joint was tender
and had mildly reduced range of motion

–           no bony
tenderness of cervical, thoracic, or lumbar spine

–           tenderness
and increased muscle tension right neck and back muscles

–           tenderness
of left upper chest area upon palpation

–           reduced
range of motion of the neck in all planes of movement; specifically, pain was
reproduced with neck extension (looking up at ceiling)

–           reduced
range of motion of left shoulder, especially with abduction (raising arm up at
one’s side) and forward flexion (raising arm up in front of body)

–           patient’s
mood was anxious and slightly flustered

–           she was
alert, but had difficulty focusing and remembering names of medications

–           persistent
muscle tension in neck and upper back muscles, but improved range of motion of
neck, shoulders, and back

–           improving,
but present lower back discomfort

–           persistent
feelings of anxiety in between psychology/counseling sessions

–           persistent
flashbacks of her accident when sitting in a car

–           frequent
feelings of panic and claustrophobia while on public transportation

–           difficulty concentrating still

[26]        
Dr. Lacuna also wrote that approximately six months after the
collision:

Mrs. Yang followed our treatment recommendations, which
consisted of:

a.         heat and
stretches at home; Mrs. Yang bought herself a yoga ball and a resistance band
to use at home.

b.         buddy-taping
of right index finger to third index finger

c.         massage
therapy as directed by the therapist – approximately 10 sessions

d.         physiotherapy as directed by
the therapist – 12 sessions, extended by 10 sessions (total 22 sessions)

[27]        
In treating Ms. Yang’s injuries from the time of the collision
until the of trial, Dr. Lacuna recommended, and Ms. Yang undertook:
an exercise regime both at home and at a gym at which she attended four to five
times per week; massage therapy (approximately 10 sessions); physiotherapy
(22 sessions); and, active rehabilitation as directed by a kinesiologist
(24 sessions).

[28]        
Dr. Lacuna also prescribed Tylenol #3 at a dosage of one to two tablets
every four hours for pain as needed during the acute stages of Ms. Yang’s
injuries, as well as muscle relaxant, anti-inflammatory and stomach protectant drugs
as needed during her treatment.

[29]        
Dr. Lacuna also attempted to treat Ms. Yang’s injured right index
finger to her third index finger as an alternative to using a splint, but with
limited success.

[30]        
Concerning her emotional difficulties, Dr. Lacuna referred Ms. Yang
to a psychologist, Dr. John Du, who saw her for 15 sessions for
counselling and psychotherapy related to mood and anxiety issues.

[31]        
Ms. Yang testified that Dr. Du provided her with imagery and
relaxation coping mechanisms to help address her anxieties which were useful
immediately after sessions with him but became less over time between sessions.

[32]        
In addition to the opinions of Dr. Lacuna, Ms. Yang relied upon the
opinions of Dr. William Craig, a specialist in Physical Medicine and
Rehabilitation, and Dr. Shao-Hua Lu, a qualified forensic psychiatrist. Both
experts also testified at trial.

[33]        
In his report dated October 1, 2013, following his examination of Ms. Yang
on September 15, 2013 (approximately 18 months after the collision
and seven months before trial), Dr. Craig stated the following concerning Ms. Yang’s
symptoms at that time:

Current Symptoms:

Neck – She has discomfort in her upper trapezius
bilaterally. They feel tight. The intensity varies. Symptoms are aggravated by
carrying items on her shoulders such as a purse or a bag, heavier lifting and
carrying or maintaining one posture for a long time. Symptoms have been
improving. There are no symptoms referring into her upper limbs. There are
occasional associated headaches over her temples. She is unsure what brings
these on. She can go some length of time without them and then have several in
a row.

Back – She feels tight in her upper back and between
her shoulder blades and in her low back. Her mid back generally is not too
bothersome. She doesn’t notice discomfort if she is focused on her work.
Symptoms are aggravated by prolonged sitting, lifting, and carrying. There is
no referral of symptoms into her hips or legs.

Mood – She continues to report some issues with her
mood and with nightmares and associated disrupted sleep.

Right Index Finger – She
has an episodic sharp pain in the distal finger. The finger seems to remain
crooked. She feels as if she has to squeeze the distal joint. It is painful
typing with this finger.

[34]        
Those symptoms as reported by Dr. Craig are consistent with Ms. Yang’s
testimony at trial.

[35]        
Those subjective assertions of continuing symptoms were also generally
supported by Dr. Craig’s objective examination who concluded that
Ms. Yang had likely suffered moderate soft tissue injuries to her neck,
upper and lower back, which had affected her function since the collision and
were having some continuing effect on her ability to function. He also confirmed
that she had suffered an acute injury to the tip of her right index finger.

[36]        
Concerning his prognosis for Ms. Yang’s future progress, Dr. Craig
wrote:

Prognosis: Mrs. Yang has had functional and
symptomatic improvement with treatment to date. Her treatment has been
appropriate. Despite this, she continues to be symptomatic in her neck,
shoulders, back, and right index finger, in addition to reported ongoing mood
symptoms. She is now over two years out from April 14, 2011 accident. The
combination of ongoing mood symptoms and persisting pain has a poorer
prognosis, than had she had just a mood disorder or ongoing pain on its own.

I would defer comment on prognosis for her mood to a
psychologist or a psychiatrist.

I feel that there is a reasonable probability of moderate
improvement in her neck and back symptoms with the treatment options outlined
in the assessment section of the report, provided she has some improvement in
her mood. If her mood fails to improve with further treatment, then she will likely
continue to have ongoing similar symptoms in her neck and back.

I feel that the prognosis for her right index finger is more
favourable with further treatment. If there is evidence of an avulsion fracture
on any imaging of her right index finger, this would put her at increased risk
of a poorer outcome for this injury.

From a physical perspective, she should be able to continue
working full-time as an accountant. I would defer comment on the impact of her
mood on her work, to a psychologist or a psychiatrist. She would likely have
difficulties in working more than full time hours, as this is typical for
individuals with persisting myofascial pain.

I do not think that she has had an acquired brain injury, as
a result of the April 14, 2011 accident. Her reported difficulties with
concentration are more likely due to her persisting discomfort and mood issues.

She should be capable of returning to her previous exercise
routine with further treatment.

I would expect that with further
treatment, she should be able to do all of her light to medium duty household
tasks but would likely have some aggravation of her back symptoms if she was
carrying her child a lot.

[37]        
The treatment options referred to by Dr. Craig (for continuing pain and
associated emotional difficulties) included:

1)    Six to eight
sessions of intramuscular stimulation or of active release therapy followed by
trigger point injections if the prior options did not sufficiently address ongoing
symptoms in her neck and back;

2)    Continued mood
management as directed by a psychiatrist or psychologist;

3)    Medication
options to better manage pain so that an increase in physical activity is
better tolerated;

4)    Eighteen to 24
sessions with a kinesiologist followed by a further six to eight sessions over
the next six to 12 months.

[38]        
Dr. Craig also observed that “unless her mood improves we are unlikely
to make progress in terms of her pain.”

[39]        
In addition, Dr. Craig recommended that Ms. Yang have six to eight sessions
with a hand therapist for her ongoing difficulties with her right index finger,
possible splinting if she is doing a lot of typing, and X-rays to determine if
she has suffered an avulsion fracture.

[40]        
Concerning the mood issues identified by Dr. Craig as being so important
to Ms. Yang’s present condition, her expert psychiatric witness, Dr. Lu,
wrote in his report dated August 11, 2013, that:

Ms. Yang fully meets the DSM-V diagnostic criteria for
General Anxiety Disorder (GAD). GAD is a psychiatric condition characterized by
chronic excessive anxiety that leads to general functional impairment. GAD
differs from common day-to-day apprehensions and worries. GAD is marked by
excessive uncontrollable worry that is all-encompassing. GAD affects Ms. Yang’s
general sense of personal security beyond any specific issue, including her
2011 MVA. GAD is accompanied by physiological and psychological hyper-arousal
state including dizziness, restlessness, shortness of breath, and muscle
tension, sleep disturbance, and feelings of mental fatigue. Ms. Yang has the
typical and characteristic symptoms of GAD. Her symptoms are marked by
persistent and poorly controlled anxiety that is both objectively and
subjectively excessive. Her GAD is accompanied by the typical anticipated
catastrophic thinking associated with an anxiety disorder. Ms. Yang’s GAD is
characterized by features of agoraphobia. Agoraphobic features are common in
patients with GAD.

GAD with agoraphobic features can
be disabling due to the recurrent feelings of loss of control as well as
negative anticipation of the future. GAD is often accompanied by non-specific
clinical symptoms including loss of energy and mental fatigue. The physical
symptoms associated with GAD are well-recognized, and include periodic heart
palpitations, shortness of breath, muscle tension, sweat, tremors, and general
physical discomfort. Other general symptoms include persistent irritability,
sleep changes, memory and concentration difficulties, and daily apprehension.
Social avoidance and isolation are common. There is general anticipatory anxiety
about the symptoms of anxiety, creating a self-reinforcing cycle. The increased
level of anxiety increases the vulnerability to avoidance and apprehensions.
Anticipatory anxiety is a common clinical feature of GAD. Ms. Yang described
the salient clinical features of GAD with agoraphobic features.

[41]        
Those observations are consistent with Ms. Yang’s testimony at
trial about the impact of seemingly everyday occurrences have upon her ability
to cope with the vicissitudes of life.

[42]        
In that regard I note the following report of her interview with Dr. Lu
as recorded by him, the substance of which was confirmed in her testimony at
trial.

Ms. Yang states that she was already apprehensive of car
accidents from her prior MVA. She wasn’t driving though she was able to ride as
a passenger without any problem. After the 2011 MVA, she couldn’t get into a
car as a passenger for months. She couldn’t understand why she was having vivid
recollections of the 2011 MVA, especially the moment before the impact. Ms.
Yang states that her anxiety was a gradual process that slowly increased over
time, especially because Evan still talks about the MVA. Her husband has not
gotten back to normal health and still has neck and back pain. Despite
different treatments, he has pain and frustration. She believes that the MVA
really changed the whole family and their entire outlook. Ms. Yang feels that
there are lots of triggers for her anxiety. Seeing vivid coloured cars,
particularly orange-coloured cars, is scary.

Ms. Yang spoke to Dr. Nguyen about the mental health side of
her reaction to the MVA. When Dr. Nguyen suggested that she see a psychologist,
she was very reluctant. She didn’t know what psychology was about. She had a
lot of worries about whether or not seeing a psychologist would affect her
work. However, she is glad to have consulted a psychologist.
It wasn’t until talking to Dr. John Du that she began to understand the extent
of her anxiety and the fact that she was having flashbacks of the MVA. Before
she learned about flashbacks and anxiety, she blamed herself for having those
intrusive mental imageries. She thought that she ought to have control over her
thoughts. With Dr. John Du’s support, she is able to sit in the front of a car.

Ms. Yang states that her anxiety has not
been limited to the MVA. Gradually, her anxiety grew beyond day-to-day traffic
and car-related fears to become much bigger. When she returned to work, she
couldn’t focus. She was feeling down. She was always over-cautious thinking
about the worst. For example, at work she has a bookcase behind her; she
worries that it would topple over. She has to remove all the heavy binders. She
is embarrassed by this anxiety. Fear of anxiety has now become a new pressure.
Ms. Yang feels that she is totally helpless to change her situation. She is
scared that things are never going to get better. She has negative expectation
of something bad. Now, she worries about everything. For example, if she takes
her son to the playground, she sees danger everywhere from unlocked gates to
swings being too high. The potential for danger is always on her mind. It is
hard to relax with Evan. Recently, she cancelled a summer camp for Evan because
“a friend’s friend was injured” in a similar camp. She gets extremely worried
when Jiang Nan comes home late from work. In his business, he is always late
because his work is unpredictable. She gets mad at him if he doesn’t call right
away. Her perception of time is affected by her anxiety. For example, it would
feel to her like he is couple of hours late when it has only been 30 minutes.
Ms. Yang avoids watching the news because it is filled with negative stories
and she tends to personalize what she sees.

Ms. Yang sometimes feels that she should
stay home because anything outside can be potentially dangerous. She worries
that she is going to have bad luck for the future. She doesn’t feel depressed,
but she is fearful and anxious. She had passive suicidal thoughts at one point
during the worst of her anxiety. Sometimes she feels that bad things are bound
to happen and she shouldn’t be a burden to her family. Ms. Yang feels that it
is hard to make decisions when everything seems dangerous. Her overall interest
is not so good. Even when she spends time with Evan, she can’t enjoy things
because she is always worried. She wants to learn music but she hasn’t been
able to do so because she can’t relax enough. Ms. Yang states that her
catastrophic thinking has not been helpful for her relationship with her
husband. They argue more and they are more irritable. There has been a marked
decrease in intimacy.

Over the past year, Ms. Yang has felt that
she is trying hard to keep up with her work. With her anxiety, she is not as
focused. She doesn’t have the same mental energy. Sitting for longer periods of
time increases her pain. She needs to move around to avoid getting stuck in a
pain-induced state. Her concentration is not as good, particularly towards the
end of the day. The requirement to look through detailed financial reports is
frustrating. Internally, she gets agitated when she is in pain or when she is
tired. She doesn’t feel like she is handling her work demands well. She has not
disclosed her anxiety to anyone, but her coworkers have pointed out that she
worries excessively about different things. She has a lot of fear about
stigmatization and discrimination. She states that it is not easy to get such a
stable job. She worries about jeopardizing her position due to her pain and
anxiety. She is always on edge that someone is going to find out that she has
anxiety and that she is struggling with pain. So far, her performance reviews
have been okay. There are no glaring problems. Her attitude is good, so she can
kind of hide her problems. She has her own office which means if she gets a bad
anxiety attack, she can focus on her own to get through without letting others
know. At this point she has anxiety that her anxiety will be increased by the
anxiety of her work.

Ms. Yang’s anxiety is most intense when she
is in closed spaces like the SkyTrain or when taking the bus. Being in busy
places such as Crystal Mall or the Metrotown Centre’s T&T supermarket can
frequently provoke anxiety. Ms. Yang states that when she rides the SkyTrain or
the bus, she has to sit near the exit. While she prefers to look out of the
window, she is afraid to sit on the window side of the seat. She doesn’t like
the underground portion of the SkyTrain.

Ms. Yang states that with her anxiety, she
is fearful of the future. She worries about anything that can happen or will
happen. She has lost her positive thinking. She feels helpless. Even though she
is a hardworking person, she can’t control other people’s behaviours and
accidents. The idea of dealing with her anxiety in the future seems hard. At
the worst of her anxiety, Ms. Yang feels as if she can’t breathe; she has to
close her eyes. She tries to practice the imagery techniques that Dr. John Du
taught her. Using mental imagery and relaxation techniques, she can get through
the mild intense anxiety. She knows how to manage some of the less intense
anxiety periods, but she can’t manage her high level waves of anxiety. When she
gets anxious, there are physical symptoms such as dizziness, restless,shortness
of breath, and muscle tension. She always thinks about the worst that could
happen; she would have fear of everything from the building collapsing to earthquakes.
During the worst of her anxiety, she feels wobbly in her legs and she can’t
relax. She frequently has the fear of dying and loss of control. There is a mental
pressure sensation as if “things are closing in” on her. At other times,
anxiety can make her dizzy and scared, as if she can’t do anything right. If
she has a bad anxiety period, there is nothing she can do to alleviate her
fear. During those times, she has to ride her anxiety out; but during the
period of anxiety she is wreck with fear. Ms. Yang states that her anxiety
tends to worsen when she is getting off work. When she is more tired, she is
less able to control her emotions and anxiety. On the way to work, she can
concentrate on what she can do for the day. It seems as if toward the end of
the day, all of the anxieties that build up throughout the day express themselves.

Ms. Yang knows that her anxiety is excessive;
she can barely control it. Almost every day she has feelings of fatigue, poor
concentration, and muscle tension. She feels that the uncontrollable nature of
the anxiety has taken over her life. She sees the world through a different set
of eyes. She feels more irritable. She gets into many small arguments with her
husband. She would scolds him over what she perceives is carelessness which, in
reality, is her anxiety.

On review of
symptoms, Ms. Yang states that her sleep problems come from her anxiety and
pain. It has been hard to fall asleep. She always thinks about different
problems. When she doesn’t sleep, she feels groggy throughout the day which,
again, affects her focus. Ms. Yang feels that she gets more easily exhausted.
Weekends with her child have not been easy. It is hard to get motivated. She
gets tired, so running around and keeping up with her son hasn’t been easy. At
present she does not have any active suicidal thoughts.

[43]        
In that recording of the details of that interview, Dr. Lu adverted
to a previous motor vehicle accident in 2005 in which Ms. Yang had been
involved.

[44]        
As I have previously noted, after that accident (in which she was not at
fault) she developed an untreated phobia against driving so that thereafter she
relied on others for transportation or took public transit.

[45]        
Concerning the relation of that earlier collision to that in April of
2011, which is the subject of this proceeding, Dr. Lu wrote:

Ms. Yang had a pre-existing
driving phobia from a 2005 MVA. Based on her clinical history, the 2005 MVA
affected her ability to return to driving. She did not receive treatment for
her driving phobia. Her solution to her fear was to avoid driving. Her fear was
highly specific to driving only. She did not report other significant clinical
symptoms of GAD. Her prior driving phobia clearly elevated her vulnerability to
developed GAD after the 2011 MVA, because phobia and avoidance behaviours are
part of anxiety spectrum of disorder.

[46]        
He also wrote:

Ms. Yang clearly described the 2011 MVA as a frightening
event.

Due to the 2011 MVA, Ms. Yang has developed many of the
salient features of PTSD (Posttraumatic Stress Disorder) with recurrent fear
and anxiety associated with her memories and recollections of the MVA, and with
her persistent fear of insecurity. She continues to have psychological distress
on exposure to the cues and reminders of the MVA. Her recurrent fears are
typical and characteristic of PTSD reaction. She has recurrent flashbacks, a
key PTSD symptom. Her son and her husband injury likely add to her fears and
insecurity. Although she does not fully meet the DSM-V diagnostic criteria
for PTSD, she has some of the key symptoms of PTSD. Her PTSD-like symptoms, in
combination with her prior vulnerability directly contribute to the development
and maintenance of her GAD. It should be noted that PTSD and GAD are both in
the same anxiety spectrum of disorder and share many of the underlying
psychological and biological factors. Lastly, Ms. Yang’s lingering pain from
the 2011 MVA plays a role in the maintenance of her GAD. The clinical
manifestation of GAD versus PTSD is often unpredictable and is highly
individualized to personal factors. Ms. Yang’s GAD is more likely than not,
precipitated by the 2011 MVA.

Ms. Yang’s GAD is moderate in severity. She has passive
suicidal ideation, a clinical maker of at least moderately severe psychiatric
condition. In general, most patients with Ms. Yang’s clinical symptom severity
are disabled from full-time work, especially jobs that require a high level of
attention and concentration. Her personal drive and financial necessity helps
her to maintain her employment. As noted by Ms. Yang, she has distress relating
to her functional capability and how her anxiety can impact her job. Her
worries are not entirely irrational. Mental health is still highly
stigmatizing. Her fear that disclosure of her anxiety may jeopardize her job is
not unreasonable. However, her fear of stigmatization and avoidance contribute
to her agoraphobic symptoms and social isolation. The self-reinforcing impact
of isolation and anxiety is well recognized clinically in patients with GAD. Lastly
the hallmark of GAD is irrational and excessive fear. Long-term GAD can erode
Ms. Yang’s self-image, confidence, and ultimately her ability to work. Left
untreated, GAD can lead to further avoidance, withdrawal and worsening of her
agoraphobia. These changes can affect her career and functional capacity. She
is at risk of developing secondary major depression.

GAD is a chronic psychiatric
condition with waxing and waning symptoms. The treatment and symptom management
of GAD is measured in years. With focused psychological treatment, Ms. Yang
should be able to return to her baseline function and may even address her
driving phobia. Active management should help her to achieve better control of
her GAD. She should have a trial a SSRI antidepressant such as citalopram.
Because of her East Asian heritage, she should start on 1/4 of the usual
recommended dose to avoid side effects. Ms. Yang states that she benefited from
her brief course of psychotherapy with Dr. Du. Given the durationand the
severity of her GAD, she requires a full course (up to 12 months) of
psychological treatment in order to make a meaningful clinical impact to
mitigate her long-term psychiatric risk. She has a good therapeutic alliance
with Dr. Du; she should be re-referred to Dr. Du for treatment. Ms. Yang’s GAD
has impacted her family structure. Few family therapy sessions can help Ms.
Yang to receive more family support and understanding.

[47]        
Concerning his prognosis for Ms. Yang’s eventual treatment for her
Generalized Anxiety Disorder, Dr. Lu said:

Ms. Yang has a fair prognosis.
She has prior vulnerability and moderately severe GAD. She has not received
medication and psychological treatment for over a year. She is highly fearful
of the stigmatization of a mental disorder. However, she has no personality
disorder or addiction disorder. She has stable work and family support and she
has personal drive. With standard combination antidepressant treatment and
psychological therapy, she may be able to return to her baseline function. GAD
is an independent risk factor for major depression. Ms. Yang is already learning
to use some skills to deal with lower-level anxiety. In the long term, it is
not uncommon for patients with GAD to go through months without treatment and
then require more frequent appointments for months during times of increased
distress. This pattern of treatment requirement is anticipated for Ms. Yang for
the foreseeable future.

D.             
The Position of the Defendant

[48]        
I have recorded the observations and opinions of Dr. Lu in some
detail because of the apparent disconnect between the severity of the physical
injuries suffered by Ms. Yang in the collision and their impact upon her
emotional and mental states.

[49]        
That apparent disconnect was the thrust of the defendant’s submissions
that her post-collision and present symptoms of anxiety and depression, as
reported to Dr. Lu and as recounted at trial, are either not credible or
not causally connected to the collision.

[50]        
In support of those submissions the defendant relied upon the opinion of
Dr. Alexander Levin dated January 27, 2014, as well as a second opinion
dated March 17, 2014, in rebuttal to a reply opinion of Dr. Lu that
had been filed on February 16, 2014, in response to Dr. Levin’s
original opinion.

[51]        
More specifically, the defendants relied upon the following opinion
offered by Dr. Levin in his first report:

In my clinical opinion, Ms.
Yang’s complaints of “generalized” anxiety and fear of possible catastrophic
events mentioned above cannot and should not be attributed selectively to the
subject MVA. In other words, given Ms. Yang’s pre-existent history of such
significant resilience to stress (after her miscarriage) – “Baby died…”,
suffering from hypothyroidism that could complicate her other pregnancies,
being involved in a motor vehicle accident in 2005, Ms. Yang’s current
subjectively-reported worries about global disasters seem to be clinically
unreasonable and unrelated to the subject MVA.

[52]        
Ms. Yang contested the admissibility of Dr. Levin’s opinion in
its entirety based primarily upon assertions that Dr. Levin:

1)    Overstepped the
bounds of legitimate expert evidence by engaging in assessments of credibility
upon which he then based his opinions. See: Fan (Guardian ad Litem of) v.
Chana, 2009 BCSC 1127 (at para. 73); Edmondson v. Payer, 2011
BCSC 118 (at para. 77) [Edmondson]; Giang v. Clayton, 2003 BCSC
1236 (at para. 32) [Giang];

2)    Was biased in
favour of the defendant in assessing Ms. Yang’s complaints. See: Edmondson
at para. 84; Mattice v. Kirby, 2014 BCSC 657 at para. 83;

3)    Crossed the line
into advocacy which is not the function of an expert witness. See: Giang
at paras. 30 and 31; Cogar Estate v. Central Mountain Air Services Ltd.
16 B.C.A.C. 134 at page 18; and

4)    Failed to
provide a full and accurate record of the questions asked of Ms. Yang that
he says elicited the responses he relied upon in forming his opinion: See: Edmondson
at paras. 32 and 33.

[53]        
After hearing those submissions and reviewing Dr. Levin’s original
and rebuttal reports, I concluded that it was necessary to excise as
inadmissible the following parts of his reports:

1)   
The observation in the body of his opinion that:

It should be mentioned at the beginning of this summary that
Ms. Yang’s diagnostic formulation should be viewed in the context of her
interview in my office that revealed numerous discrepancies and inconsistencies
between her subjectively-reported complaints of anxiety and her
virtually-unimpaired social, occupational and interpersonal functioning. Ms.
Yang initially omitted and under-reported her pre-existent history of
psychological/emotional disturbances, attributing her current
subjectively-presented complaints of “generalized” anxiety specifically and
selectively to the subject MVA.

2)   
The observation in Appendix C of his opinion that:

From a diagnostic perspective, however, the
above-reviewed psychological clinical notes do not identify any specific PTSD
symptomatology or reports of any type of generalized anxiety described by Ms.
Yang during the interview in my office. It seems that Ms. Yang’s “generalized
anxiety” disturbances had a somewhat rapid onset following her reported
psychiatric consultation with Dr. Lu (organized by her lawyer).

[54]        
I excised those paragraphs because:

1)    The excised
observations in the body of his opinion not only crossed the line into an
improper assessment of credibility but also constituted advocacy in the guise
of expertise; and

2)    The excised
observations in Appendix C demonstrated an unwarranted and unsubstantiated
personal attack not only on the credibility of the plaintiff but also upon a
well-qualified psychiatrist and upon plaintiff’s counsel.

[55]        
I did not, however, rule that the totality of Dr. Levin’s reports
should be determined to be inadmissible at that stage of the proceeding because
I was satisfied that fairness to the impugned expert and to the defendant who
had relied upon his evidence required that such a ruling should not be made
without the benefit of hearing Dr. Levin’s evidence in chief and in
cross-examination

[56]        
I reached that conclusion also because of the complexities of the
subject matter on which Dr. Levin was seeking to opine and in the context of
the breadth of the attack by counsel for Ms. Yang upon not only his substantive
opinion but also the methodology employed by Dr. Levin in rendering it.

[57]        
After hearing his evidence at trial and having the opportunity to consider
the totality of his evidence, including both written opinions and the entirety
of his testimony at trial, I have concluded that Dr. Levin’s opinion
presents a distorted recording of his interview with Ms. Yang by failing
to identify with preciseness the questions which he asked of her and by his
interspersed editorializing as to what answers he would have expected, all of
which constituted his assessment of her lack of credibility which he then used
as the basis for his diagnosis. That in turn resulted in a resort to advocacy
on behalf of the defendant in relation to issues of causation and, in my view,
demonstrated a personal investment in the litigation sufficient to constitute
bias.

[58]        
Those concerns were even more dramatically highlighted by a highly
personalized, and, in my view, entirely unwarranted attack upon Dr. Lu’s
opinion and professionalism in Dr. Levin’s rebuttal report delivered in response
to Dr. Lu’s critique of Dr. Levin’s analysis.

[59]        
In result, I have concluded that Dr. Levin’s opinions suffer so
greatly from overstepping the proper bounds of opinion evidence into the
assessment of credibility (a function for the trier of fact), advocacy and bias,
that they are inadmissible.

[60]        
I must also observe that even if I had concluded that some part or parts
of his opinions could be determined to be admissible, I would in any event have
been required to give such opinions little or no weight because of the many
shortcomings to which I have adverted.

[61]        
That conclusion is also mandated because while Dr. Levin improperly
questioned the veracity of many of Ms. Yang’s responses to his questions
and offered his versions of what responses he would have “expected,” counsel
for the defendants did not confront Ms. Yang with the alleged
“inconsistencies” and “discrepancies” relied upon by Dr. Levin in
rendering his opinions.

[62]        
What is left is simply an array of unfounded and untested allegations of
dishonesty and exaggeration that do not accord with my own assessment of Ms. Yang
as a witness.

[63]        
Notwithstanding that English is Ms. Yang’s second language she is
fluent in it and well able to express herself. She impressed me as a stoical,
careful and honest witness who listened carefully to the questions asked of her
and responded without exaggeration.

[64]        
Although the anxiety she testified about now suffering related to
seemingly common everyday life situations may seem wholly disproportionate to
the circumstances she related in her evidence which manifest in those reactions,
the totality of the evidence, including most importantly the psychological
evidence of Dr. Lu to which I have referred in detail, convinces me that
the anxiety she expresses is genuine.

[65]        
In summary, I find that I can safely rely on the veracity of Ms. Yang’s
testimony concerning the injuries she suffered in the collision, the progress
of those injuries and the extent to which they have impacted her life both on a
physical and emotional level.

IV.           
CAUSATION

[66]        
As I previously noted, although the defendant has admitted
liability for her negligence in causing the collision, the defendant defends Ms. Yang’s
claims for damages on the bases that they are excessive and that the
psychological issues now affecting Ms. Yang’s well-being are not causally
connected to the collision.

[67]        
The totality of the evidence that I find to be reliable satisfies me
that Ms. Yang has proven that she has suffered soft tissue injuries of
moderate severity to her neck and back from which she still suffers, although
less so than in the first two years after the collision that were caused by the
defendant’s negligence.

[68]        
In addition, the collision caused episodic pain and discomfort at the
tip of her right index finger that has continued since the collision and may
require more severe medical intervention than has been pursued in treatment of
that injury to date.

[69]        
I am also satisfied that the psychological and emotional difficulties
which have dramatically affected her life and well-being since the collision,
including more specifically the Generalized Anxiety Disorder diagnosed by Dr. Lu
from which she continues to suffer, were caused or materially contributed to by
the defendant’s negligence.

[70]        
Having said that, I am not, however, satisfied that, as submitted by her
counsel, all of Ms. Yang’s present psychological issues are solely attributable
to the collision.

[71]        
I reach that conclusion because of the opinion expressed by Dr. Lu
that the prior motor vehicle accident in which she was involved in 2005, as a
consequence of which she had developed an untreated phobia about driving, had “elevated
her vulnerability” to the development of the General Anxiety Disorder after the
2011 collision “because phobia and avoidance behaviour are part of the anxiety
spectrum.”

[72]        
While I do not accept, as asserted by the defendant, that a miscarriage
suffered by Ms. Yang, hyperthyroidism, or the death of her father were the
cause of her present mood disorders, I am satisfied that her pre-existing
susceptibility to the development of Generalized Anxiety Disorder must be
addressed in assessing the damages to which she is entitled as a consequence of
the defendant’s negligence.

[73]        
I say that because I am satisfied that Dr. Lu’s opinion brings into
play the principles enunciated by the Supreme Court of Canada in in Athey v.
Leonati, [1996] 3 S.C.R 458 [Athey], and cases decided thereafter
which discuss difficult questions involved in the quantification of damages in
cases where the evidence establishes that the plaintiff has suffered from
pre-existing injuries or conditions.

[74]        
In Athey, on the issue of quantification generally, as a matter
of first principles, Major J. wrote at para. 32 for the Court:

…The essential purpose and most
basic principle of tort law is that the plaintiff must be placed in the
position he or she would have been in absent the defendant’s negligence (the
“original position”). However, the plaintiff is not to be placed in a position better
than his or her original one. It is therefore necessary not only to determine
the plaintiff’s position after the tort but also to assess what the “original
position” would have been. It is the difference between these positions, the
“original position” and the “injured position”, which is the plaintiff’s loss.

[75]        
More specific to the issue of pre-existing injuries or conditions raised
by the evidence of Dr. Lu in this case, in Athey, Major J.
then went on to discuss the “Thin Skull” and “Crumbling Skull” doctrines. At
paras. 34 and 35 he wrote:

34        The respondents argued that the
plaintiff was predisposed to disc herniation and that this is therefore a case
where the “crumbling skull” rule applies. The “crumbling skull” doctrine is an
awkward label for a fairly simple idea. It is named after the well-known “thin
skull” rule, which makes the tortfeasor liable for the plaintiff’s injuries
even if the injuries are unexpectedly severe owing to a pre-existing condition.
The tortfeasor must take his or her victim as the tortfeasor finds the victim,
and is therefore liable even though the plaintiff’s losses are more dramatic
than they would be for the average person.

35        The so-called
“crumbling skull” rule simply recognizes that the pre-existing condition was
inherent in the plaintiff’s “original position”. The defendant need not put the
plaintiff in a position better than his or her original position. The
defendant is liable for the injuries caused, even if they are extreme, but need
not compensate the plaintiff for any debilitating effects of the pre-existing
condition which the plaintiff would have experienced anyway. The defendant is
liable for the additional damage but not the pre-existing damage:
Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages
for Personal Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if
there is a measurable risk that the pre-existing condition would have
detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence, then this can be taken into account in reducing the
overall award: Graham v. Rourke, supra; Malec v. J. C. Hutton
Proprietary Ltd., supra; Cooper-Stephenson, supra, at pp.
851-852. This is consistent with the general rule that the plaintiff must be
returned to the position he would have been in, with all of its attendant risks
and shortcomings, and not a better position.

[76]        
It is always difficult to determine whether a tortfeasor’s negligence
has caused injury to a “thin skull” or “crumbling skull” plaintiff.

[77]        
Ms. Yang’s counsel submitted that because Ms. Yang had coped
with the psychological after-effects of the 2005 collision by simply avoiding
driving I should conclude that she was asymptomatic at the time of the second
collision in 2011, and that development of the severe Generalized Anxiety
Disorder from which she now suffers should be compensated in full as a “thin
skull” situation even though her losses are more dramatic than they would be
for the average person.

[78]        
In response, as noted above, the defendant asserted that she either has
no proven mood disorders or that if she does they were at least causally
connected to the 2011 collision.

[79]        
After considering all of the evidence I have concluded that I am unable
to say that but for the defendant’s negligence, Ms. Yang would have
developed the Generalized Anxiety Disorder from which she now suffers in any
event, given her successful coping strategy in dealing with the psychological
effects of the first collision by not driving, and that it would be speculative
to reach that conclusion.

[80]        
That does not, however, mean that Ms. Yang should be put in a
better position than that which comprised her “original” position by being
compensated for all of her present psychological conditions. Her pre-existing
fear of driving and the ramifications of that phobia must be excluded from any
award so that she is compensated only for the injuries caused by the
defendant’s negligence.

[81]        
To that extent her injuries are akin to a “crumbling skull” situation to
the extent that while her pre-existing psychological state and ongoing driving
phobia were not affecting her in the dramatic way that manifested after the
collision, her pre-accident psychological condition was not wholly asymptomatic.

[82]        
In those circumstances I am satisfied that in assessing damages in this
case, heed must be paid to the over-arching principle that arises from Athey
expressed in para. 35 that:

The defendant need
not put the plaintiff in a position better than his or her original position.
The defendant is liable for the injuries caused, even if they are extreme, but need
not compensate the plaintiff for any debilitating effects of the pre-existing
condition which the plaintiff would have experienced anyway. The defendant is
liable for the additional damage but not the pre-existing damage

V.             
DAMAGES

[83]        
As noted above, Ms. Yang seeks compensation for the injuries she
suffered as a consequence of the defendant’s admitted negligence for her:

1)    Non-pecuniary
damages for pain and suffering and loss of enjoyment of life;

2)    Damages for past
wage loss;

3)    Damages for loss
of future earning capacity;

4)    Damages for cost
of future care; and

5)    Special damages.

A.             
Non-pecuniary Damages

[84]        
The purpose of non-pecuniary damages in personal injury cases is to
compensate the injured party for their pain and suffering, loss of enjoyment of
life and loss of enjoyment of amenities caused by the fault of a tortfeasor.

[85]        
In Stapley v. Hejslet, 2006 BCCA 34 [Stapley] at para. 46,
Kirkpatrick J.A. set out a useful, non-exhaustive list of factors that offer
guidance as to what may influence an award of non-pecuniary damages. The list
included the:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

[86]        
Kirkpatrick J.A. went on to say:

I would add the following factors, although they may arguably
be subsumed in the above list:

(g) impairment of family, marital and social relationships;

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as
a factor that should not, generally speaking, penalize the plaintiff: Giang
v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[87]        
With those considerations in mind I will now assess the compensation to
which I consider Ms. Wang is entitled for her pain, suffering, and loss of
enjoyment of life for the injuries she suffered as a consequence of the defendant’s
negligence.

[88]        
There is no question but that the injuries suffered by Ms. Yang in
the collision on April 14, 2011, have had a devastating impact upon her
life. She has, however, been able to continue to work in a challenging
profession as an accountant, virtually without interruption and has attempted
with some success to maintain the pre-accident lifestyle that she and her
family enjoyed.

[89]        
The defendant, in reliance upon Dr. Levin whose opinion I have
rejected, submits the objective indicia of Ms. Yang’s post-accident life,
has suggested that her ability to work and function socially to the extent she
has leads to the conclusion that she has not suffered and will not continue to
suffer from her injuries to the extent she has asserted.

[90]        
I do not accept that submission.

[91]        
I find that, at least in part, the continuation of her work without
significant time off has arisen as a consequence of Ms. Yang’s financial
need to sustain her position as the primary breadwinner for her family. That
same sense of responsibility and duty to her family has also led to her
attempts to sublimate her own psychological issues in order to foster as much
normalcy as possible in the family unit.

[92]        
Ms. Yang should not be penalized for either her stoicism or her
sense of responsibility to the benefit of the defendant who caused Ms. Yang
to suffer the past and continuing impact of the moderately severe physical
injuries that the evidence establishes were caused by the collision.

[93]        
The same is true of the psychological and emotional difficulties
emanating from the collision and its after-effects which have dramatically
affected her life and well-being including, most significantly, the Generalized
Anxiety Disorder diagnosed by Dr. Lu, from which she continues to suffer.

[94]        
Counsel for Ms. Yang submitted that in all of the circumstances an
award of $100,000 is necessary to compensate Ms. Yang for her
non-pecuniary losses.

[95]        
In support of that submission, Mr. McIntosh relies upon:

1)    Neyman v.
Wouterse, 2013 BCSC 741, in which the plaintiff was awarded $60,000 for the
substantial aggravation of her pre-existing Generalized Anxiety Disorder;

2)    Hollows v.
Wood, 2013 BCSC 1991, in which the plaintiff was awarded $90,000 for soft
tissue injuries and anxiety symptoms resulting in residual pain and impaired
ability to enjoy life but not to the point of being significantly disabling;

3)    Ahadi v.
Valdez, 2013 BCSC 714, in which the plaintiff was awarded $110,000 for her
orthopaedic injuries that resolved within one year with ongoing depression and
anxiety and a guarded but not hopeless prognosis; and

4)    Wong v. Luong,
2004 BCSC 1489, in which the plaintiff was awarded $120,000 for aggravation of
his anxiety, depression, obsessive-compulsive disorder and chronic pain,
attributable 60% to the defendant’s negligence in that case and 40% to his
pre-existing conditions.

[96]        
Counsel for the defendant submits that Ms. Wang should be compensated by
an award of from $30,000 to $40,000.

[97]        
In making those submissions, Mr. Toulch relied upon:

1)    Sefton v. Doppelmayr
CTEC Ltd., 2013 BCSC 781, in which the plaintiff was awarded $35,000 for
her claims related to discomforting physical injuries and allegedly severe
psychological consequences.

2)    Golam v.
Fortier, 2005 BCSC 598, in which the plaintiff was awarded $25,000 for mild
to moderate soft tissue injuries to his shoulder, neck and back the pain
related to which had also caused some frustration and financial anxiety;

3)    Lo v. Chow,
2009 BCSC 817, in which the plaintiff was awarded $35,000 for mild to moderate
soft tissue injuries that had persisted since he was injured in a motor vehicle
accident two and one-half years before trial and would likely continue but
without the symptoms being severe or in any way debilitating.

4)    Chan v. Lee,
2008 BCSC 594, in which the plaintiff was awarded $35,000 for mild to moderate
soft tissue injuries to her neck, upper back and shoulder and some lingering
anxiety that was causally connected to her injuries with some inhibition of her
lifestyle but no significant impairment and a good prognosis for recovery.

5)    Chamberlain
v. Giles, 2008 BCSC 171 [Chamberlain], in which the plaintiff was
awarded $50,000 for chronic pain, depression, periodic panic attacks and
frequent headaches attributable 60% to the defendant rather than 100% because
of the aggravation of pre-existing conditions including depression and anxiety
disorders.

[98]        
In relying upon Chamberlain the defendant submits that if an
award of damages is made, which accepts that Ms. Wang’s present psychological
injuries, including Generalized Anxiety Disorder, exist and are causally
connected to the collision, that award should be reduced by 25% because of her
previous driving phobia and susceptibility to anxiety.

[99]        
Other cases are of some, but limited, assistance in determining an award
for non-pecuniary damages. Each person who endures a debilitating injury is
unique and the nature of the injuries suffered by plaintiffs and their life
circumstances will rarely be identical.

[100]     My review
of the cases relied upon by the defendant leads me to conclude that the
totality of the injuries suffered by the plaintiffs in those cases were
substantially less serious, less long-lasting and less debilitating than those
I have found were suffered by Ms. Yang.

[101]     Also,
prospects for recovery for the plaintiffs in those cases were less guarded
other than in Chamberlain, in which the award of $50,000 was
based upon attribution of only 60% of the injuries and suffering that the
plaintiff endured.

[102]     To that
extent, Chamberlain is more in line with the range of damages submitted
by the plaintiff as being appropriate to compensate Ms. Yang in this case.

[103]     I must
also observe that the 25% deduction sought by the defendant for Ms. Yang’s
pre-existing driving phobia and susceptibility to the development of the
Generalized Anxiety Disorder from which she now suffers is not supported by the
totality of the evidence I have found to be admissible and reliable.

[104]     I have
also considered and rejected the defendant’s suggestions that there should be
deduction from an otherwise appropriate award of damages because of any alleged
failure to mitigate or by reasons of the drawing of an adverse interest against
Ms. Yang for failure to call her psychologist, Dr. Du, as a witness.

[105]     The burden
of proving a failure to mitigate is on the party alleging that failure and it
has not been discharged by the defendant in this case.

[106]     Counsel
for the defendant did not confront Ms. Yang with any aspects of delay in
seeking treatment for her psychological issues upon which he sought to rely in
alleging a failure to mitigate. Further, the unchallenged opinion evidence of
Dr. Craig was that the treatment of her to the date of his report had been
appropriate.

[107]     I also do
not consider that the failure of Ms. Yang to call Dr. Du as a witness
warrants a finding of adversity against her. Dr. Du’s clinical records
were disclosed and it was open to counsel to adduce Dr. Du’s evidence if the
defendant believed his evidence would be detrimental to the plaintiff’s case.

[108]     After
having considered the totality of the evidence, the submissions of counsel and
the authorities to which I was referred, I am satisfied that an award of
$100,000 would appropriately compensate Ms. Yang for her injured position
but I am also satisfied that it must be reduced by $10,000 to reflect her
somewhat compromised “original” position related to and emanating from her
pre-exiting driving phobia and emotional susceptibility.

[109]     In result,
I have determined that an award $90,000 will appropriately compensate Ms. Yang
for her pain and suffering and loss of past and future enjoyment of life for
which the defendant is responsible.

B.             
Damages for Past Wage Loss

[110]     The
parties have agreed that the defendant is responsible to compensate Ms. Yang
by payment of $1,925 (after deduction of taxes at 23%) for her past wage loss.

C.             
Damages for Loss of Future Earning Capacity

[111]    
In Perren v. Lalari, 2010 BCCA 140, the Court of Appeal settled
the question of how claims for lost impaired earning capacity can be addressed.
After a long discussion and review of different approaches that had been
applied in past cases, Garson J.A. stated for the court at para. 32:

[32] A plaintiff
must always prove, as was noted by Donald J.A. in Steward, by
Bauman J. in Chang, and by Tysoe J.A. in Romanchych, that
there is a real and substantial possibility of a future event leading to an
income loss. If the plaintiff discharges that burden of proof, then depending
upon the facts of the case, the plaintiff may prove the quantification of that
loss of earning capacity, either on an earnings approach, as in Steenblok,
or a capital asset approach, as in Brown. The former approach will be
more useful when the loss is more easily measurable, as it was in Steenblok.
The latter approach will be more useful when the loss is not as easily
measurable, as in Pallos and Romanchych. A plaintiff may indeed
be able to prove that there is a substantial possibility of a future loss of
income despite having returned to his or her usual employment. That was the
case in both Pallos and Parypa. But, as Donald J.A. said in Steward,
an inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss.

[112]     Counsel
for Ms. Yang submits that an award of $150,000 is necessary to compensate
her for her impaired earning capacity.

[113]     That
submission is based upon the proposition that notwithstanding Ms. Yang has
suffered little income loss until now, the consequences of the psychological disorders
from which she now suffers because of the defendant’s negligence establish a
real and substantial possibility that she will suffer future pecuniary losses
because of her diminished competitiveness as an accountant.

[114]     In
addition or cumulatively, Ms. Yang asserts that evidence of her diminished
physical abilities and their effect on her stamina establish that she will
suffer future employment losses because of a reduced ability to work overtime
as she has in the past.

[115]     Counsel
for the defendant submitted that Ms. Yang has not established a real and
substantial possibility that she will suffer any future income loss as a
consequence of her physical or psychological injuries and submits that she is
entitled to no compensation under this head of damages. The defendant also
relied on Dr. Levin’s opinion (which I have not accepted) that Ms. Yang
does not suffer from Generalized Anxiety Disorder as diagnosed by Dr. Lu,
whose opinion I have accepted.

[116]     The
evidence establishes that in the two years before the collision on April 14,
2011, Ms. Yang earned approximately $75, 000 (2009) and $71,000 (2010)
from her employment as an accountant with Imperial Parking. In the year of the
collision she earned approximately $76,600. In 2012 she earned approximately
$84,400 and in 2013 approximately $88,000.

[117]     Her
significantly higher earnings in 2012 and 2013 reflect, at least in part,
payment for overtime she was required to work and which she did work,
notwithstanding the physical and emotional toll which doing so took on her
non-working life because of the pain and psychological issues from which she
was suffering as evidenced by the opinions of Dr. Lacuna, Dr. Craig and Dr. Lu,
as well as by Ms. Yang’s own testimony.

[118]     I have
previously found that Ms. Yang is a stoical individual. She is also the
primary breadwinner for her family and a dedicated employee who, both for
financial and personal reasons, is apprehensive of showing any inability to
perform as required of her by her employer.

[119]     That
stoicism and dedication should not be held against her in assessing whether she
has established a real and substantial possibility that she will suffer a
future loss of employment.

[120]     On the
other hand, those characteristics and the undoubted proof of her ability to
function at work at a high level when the physical injuries suffered by her
were at their most debilitating and requiring the most intensive medical
attention also cannot be ignored.

[121]     Both the
negative aspects of the Generalized Anxiety Disorder and continuing pain from
her injuries from which she still suffers, as well as those positive
characteristics of Ms. Yang’s overall psychological make-up which have ,
at least financially, been able to ameliorate the negative aspects of her
injuries, must be considered in assessing her claim for loss of future earning
capacity.

[122]    
In his opinion relating to Ms. Yang’s disabilities and their effect
on her work capacity, Dr. Craig said (as noted above):

From a physical perspective, she
should be able to continue working full-time as an accountant. I would defer
comment on the impact of her mood on her work, to a psychologist or
psychiatrist. She would likely have difficulties in working more than full time
hours as this is typical for individuals with persisting myofacial pain.

[123]     Although Ms. Yang’s
ability to work more than full time hours notwithstanding her persistent pain
has been demonstrated by her past stoicism and fear of financial loss, the
underlying concern addressed by Dr. Craig must still be considered when
looking to the future and in the context of the mood issues on which he
deferred comment.

[124]    
In his opinion on that issue, Dr. Lu stated:

In general, most patients with Ms. Yang’s clinical
symptom severity are disabled from full time work, especially jobs that require
a high level of attention and concentration. Her personal drive and financial
necessity helps her to maintain employment. As noted by Ms. Yang, she has
distress relating to her functional capacity and how her anxiety can impact her
job. Her worries are not entirely irrational. Mental health is still highly stigmatizing.
Her fear that disclosure of her anxiety may jeopardize her job is not unreasonable.
However, her fear of stigmatization and avoidance contribute to her agoraphobic
symptoms and social isolation. The self-reinforcing impact of isolation is well
recognized clinically in patients with GAD.

Lastly, the hallmark of GAD is
irrational and excessive fear. Long-term GAD can erode Ms. Yang’s
self-image, confidence and ultimately her ability to work. Left untreated, GAD can
lead to further avoidance, withdrawal and worsening of her agoraphobia. These changes
can affect her career and functional capacity. She is at risk of developing secondary
major depression.

[125]     It must of
course be noted that Dr. Lu’s opinion concerning the potential devastating
effects of the Generalized Anxiety Disorder from which Ms. Yang suffers
(which he classifies as being moderate in severity) paints a worst case
scenario wherein her conditions are left untreated.

[126]    
He also went on to say that in his opinion she has a fair prognosis and
that:

With standard combination
anti-depressant medication and psychological therapy she may be able to return
to her baseline function.

[127]    
While that prognosis does not eliminate the possibility of a loss of
future income earning capacity it does ameliorate to some extent the risk of
that loss. There remains a substantial risk, however, because as Dr. Lu
also stated:

The treatment and symptom
management of GAD is measured in years.

[128]    
He also said:

In the long term, it is not
uncommon with patients with GAD to go through months of treatment and then
require more frequent appointments for months during times of increased
distress. This pattern of treatment is anticipated for Ms. Yang for the foreseeable
future.

[129]     In those
circumstances I am satisfied that the evidence establishes a real and
substantial possibility of a future event (the possible failure of the
recommended course of treatment to achieve lasting success) sufficient to
require compensation to Ms. Yang for a future loss of income earning
capacity arising from the defendant’s negligence.

[130]     To rule
otherwise would allow stoicism and financial necessity to override the real
risks associated with Ms. Yang’s presently existing General Anxiety
Disorder and her vulnerability to those risks in a profession requiring such a
high level of attention and concentration.

[131]     I am
satisfied that even if treated as suggested by Dr. Lu, she will remain
highly vulnerable to diminished earning capacity as an accountant.

[132]     In reaching
that conclusion I have applied the factors in Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353 (S.C.).

[133]     More
specifically I have concluded that:

1)    Ms. Yang
has been rendered less capable overall from earning income from all types of
employment as an accountant;

2)    She is less
marketable or attractive as an employee to potential employers;

3)    She has lost the
ability to take advantages of all job opportunities that might otherwise have
been open to her had she not been injured because of the limitations from which
she now suffers including impaired ability to work overtime because of
myofacial pain diagnosed by Dr. Craig and the distress it causes; and

4)    She is less
valuable to herself as a person capable of earning income in a competitive
labour market.

[134]     After considering
all of those factors in the context of the totality of the evidence and my
assessment of the risk of loss, I have concluded that an award of $75,000 is
necessary and appropriate to compensate Ms. Yang for the loss of her
future income earning capacity resulting from the defendant’s negligence. In
making that award I have specifically anticipated ongoing counselling for Ms. Yang
to ameliorate the effect of her psychological injuries on her future earning
capacity.

D.             
Damages for Costs of Future Care

[135]     Recently,
in Gignac v. Insurance Corporation of British Columbia, 2012 BCCA 351 [Gignac],
our Court of Appeal reviewed principles that govern the assessment of cost of
future care awards.

[136]    
In Gignac at paras. 28-30, Bennett J.A., for the court, stated:

[28] In Andrews v. Grand & Toy Alberta Ltd.
(1978), 83 D.L.R. (3d) 452 at 462, Dickson C.J.C. said:

In theory a claim for the cost of future care is a pecuniary
claim for the amount which may reasonably be expected to be expended in putting
the injured party in the position he would have been in if he had not sustained
the injury. Obviously, a plaintiff who has been gravely and permanently
impaired can never be put in the position he would have been in if the tort had
not been committed. To this extent, restitutio in integrum is not
possible. Money is a barren substitute for health and personal happiness, but
to the extent, within reason, that money can be used to sustain or improve the
mental or physical health of the injured person it may properly form part of a
claim.

[29] The purpose of the award for costs of future care is to
restore, as best as possible with a monetary award, the injured person to the
position he would have been in had the accident not occurred.

[30] The award is “based on what
is reasonably necessary on the medical evidence to promote the mental and
physical health of the plaintiff: (Milina v. Bartsch (1985), 49 B.C.L.R.
(2d) 33 (B.C.S.C.) and adopted in Aberdeen v. Zanatta, 2008 BCCA
420 at para. 41.

[137]    
Bennett J.A. also went on to state at para. 32:

[32] The failure of the trial
judge to perform an analysis of each item sought by the plaintiff with respect
to whether there was “some evidentiary link between the physician’s assessment
of pain, disability and recommended treatment and the care recommended by a
qualified health professional” was a legal error.

[138]     In this
case, Ms. Yang seeks an award for the following costs of her future care
that she says are reasonably necessary on the medical evidence to promote her
mental and physical health as a consequence of the defendant’s negligence:

1)    $2,016 for 32
sessions of personal training as recommended by Dr. Craig, at $60 per hour plus
GST;

2)    $300 for four
more sessions of Intramuscular Stimulation Therapy as recommended by Dr. Craig,
at $75 per session;

3)    $480 for six
sessions of hand therapy as recommended by Dr. Craig;

4)    $800 for 10 sessions
of physiotherapy or massage therapy as recommended by Dr. Lacuna; and

5)    $2,400 for 12
sessions of psychiatric counselling as recommended by Dr. Lu.

[139]     In making
his submissions on behalf of Ms. Yang concerning costs of future
psychiatric counselling, Mr. McIntosh suggested that an increased award for
additional counselling is warranted because of the opinion expressed by Dr. Lu,
that counselling beyond the initial 12 sessions may be reasonable and
necessary to accommodate Ms. Yang’s ongoing needs after that first group
of sessions.

[140]     That
submission arose because of concerns with the “waxing and waning” symptomology
associated with Generalized Anxiety Disorder which Dr. Lu said he
anticipated would necessitate a “pattern of treatment” requiring more frequent
appointments “for months during times of increased stress” for Ms. Yang,
but which Dr. Lu did not quantify as to either specific duration or
amount.

[141]     The
defendant submitted that Ms. Yang has failed to prove that the future care
costs claimed are either reasonable or necessary and specifically challenged
the appropriateness of any award related to psychiatric counselling because of
the opinion of Dr. Levin, that Ms. Yang did not suffer from any
psychiatric disorders caused by the collision.

[142]     I have
rejected Dr. Levin’s opinions and I also do not accept the defendant’s
submission that the cost of future care award sought by Ms. Yang has not
been proven.

[143]     All of the
future care needs identified by Ms. Yang were specifically recommended by
Dr. Lacuna, Dr. Craig or Dr. Lu, the evidence of all of whom I have
considered and accepted.

[144]     The costs
associated with those medical interventions are also all reasonable, given the
extent and duration of Ms. Yang’s physical and psychological injuries
caused by the defendant’s negligence.

[145]     I find
that Ms. Yang has proven that all of the costs of future care she has
identified and quantified, totalling $5,996, are medically necessary and
reasonable.

[146]     I have
also considered Mr. McIntosh’s submission that an additional award for costs of
future care should be made because of Dr. Lu’s opinion concerning the need
for ongoing psychiatric counselling for Ms. Yang, especially in times of
increased stress.

[147]     I also
considered that possibility in determining the award for loss of future earning
capacity I considered necessary and appropriate. In doing so I concluded that
if an award of future care costs for psychiatric counselling in addition to the
recommended and quantified first 12 sessions of psychiatric counselling
was not made, that the award for future loss of earning capacity would have to
be increased to reflect an increased risk of loss.

[148]     Doing the
best I can with the limited evidence available to me, I have concluded that an
additional cost of future care award for ongoing psychiatric counselling of
$5,000 is both medically necessary and reasonable to allow Ms. Yang to
cope with the stresses associated with her diminished work capacity.

[149]     If I did
not make that award the award for her loss of earning capacity would have to be
substantially adjusted upwards to reflect the increased risk of loss.

[150]     In result,
I award Ms. Yang $10,599 for the costs of her future care.

E.             
Special Damages

[151]     Ms. Yang
claims special damages totalling $2,643 for uncompensated expenses she says she
has incurred because of the defendant’s negligence.

[152]     The
defendant does not dispute the amount claimed as proven and compensable but
seeks a 20% reduction, to $2,114.40, because of the assertion that Ms. Yang
has not proven that treatments provided to her in 2014 by Dr. Du were
causally connected to the collision in which she suffered psychological and
emotional injuries.

[153]     I see no
merit in that submission. It could only be based on the opinion of Dr. Levin
that she did not suffer psychological injuries in the collision requiring
medical intervention beyond the counselling she received from July 9, 2011 to
April 12, 2012 from Dr. Du which the defendant accepts as being reasonably
incurred. I have rejected Dr. Levin’s opinion and reject submissions based
upon it.

[154]     I find
that Ms. Yang has proven her claim to special damages in the amount of
$2,643, as claimed.

VI.           
SUMMARY OF AWARDS

[155]     Ms. Yang
is entitled to payment by the defendant of the following amounts for the
damages she has suffered as a consequence of their negligence.

1)    Non-pecuniary
damages: $90,000

2)    Past loss of
income: $1,925

3)    Loss of earning
capacity: $75,000;

4)    Cost of future care:
$10,599; and

5)    Special damages:
$2,643

Total: $180,167

VII.          
COSTS

[156]     Unless
there are matters of which I am unaware which may require further submissions, Ms. Yang
is entitled to recover her assessable costs and disbursements throughout
related to this proceeding on Scale B.

“Davies
J.”