IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141010

Docket: M104546

Registry:
Vancouver

Between:

Bingchun Zhao

Plaintiff

And

Qiang Yu

Defendant

Before:
The Honourable Madam Justice Baker

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff Bingchun Zhao was injured on October 4, 2008 when the
vehicle he was driving was struck from the rear by a vehicle driven by the
defendant, Qiang Yu.  The defendant admits that the collision was caused by his
negligence and that the accident caused soft tissue injuries to Mr. Zhao’s neck
and back; and caused or contributed to Mr. Zhao’s headaches.  Mr. Yu
specifically denies that Mr. Zhao sustained a brain injury; and the parties
disagree about the severity, duration and effect of the injuries received by
Mr. Zhao as a result of the collision.  Mr. Yu also alleges that Mr. Zhao
failed to take reasonable steps to mitigate his damages.

FACTS

[2]            
Mr. Zhao was born in China in 1963.  He was 45 when the accident
happened and is now 51 years old.  Mr. Zhao’s widowed father and two younger
siblings live in China.  Mr. Zhao testified that he was a good student in
secondary school, achieving high grades.  After graduating from high school,
Mr. Zhao attended university in his home city of Dalian, where he obtained an
engineering degree in 1986.

[3]            
After completing his degree, Mr. Zhao taught general and organic
chemistry at the Dalian Medical University for four years.  He then worked as
assistant to the general manager of a textile import-export company for seven
years.  Mr. Zhao moved to the United States in 1987 to study for a Master’s
degree at Wayne State University in Michigan.  He completed his Master’s degree
in computer science and computer engineering in 1999.

[4]            
Following completion of that degree, Mr. Zhao worked for three
successive technology companies, each for a period of about one year.  In 2002,
Mr. Zhao took a job at the University of Michigan, providing computer services
to the Bio-Sciences department.

[5]            
Mr. Zhao applied to immigrate to Canada and in 2003 he established a
residence in Windsor, Ontario.  He continued to work in Ann Arbor, Michigan and
kept an apartment there.

[6]            
In 2007, some former graduates of the University of Dalian who were
living in Vancouver invited Mr. Zhao to move to Vancouver to become involved
with the start-up of a new corporate venture.  Mr. Zhao was interested in this
project and had also heard good things about Vancouver and the many outdoor
recreational opportunities available in British Columbia.  In the summer of
2007, he moved to British Columbia and rented a room in a house in Burnaby. 
After he arrived, Mr. Zhao concluded the new corporate venture was unlikely to
succeed here in British Columbia, and he abandoned the project.

[7]            
After moving to British Columbia, it took Mr. Zhao several months to
find employment.  As a child and a young man he had been active and athletic,
enjoying hiking, fishing, playing soccer, tennis, badminton and volleyball, and
participating in martial arts.  Mr. Zhao discovered an Internet web-site that
assisted newcomers to British Columbia, especially recent Chinese immigrants,
to get together to participate in outdoor activities, including hiking,
camping, and fishing.  Mr. Zhao attended several events organized through this
web-site.   He started playing badminton regularly with friends.  He went on
hikes, including hiking the “Grouse Grind” in North Vancouver.  Mr. Zhao
testified he was sufficiently fit to complete the climb in 45 minutes.

[8]            
In the fall of 2007, Mr. Zhao met and began dating Huang Ying, the woman
with whom he now shares a home.  Ms. Huang was born in 1966, so she was 41 when
Mr. Zhao met her; 42 when the accident happened; and 47 at time of trial.  Ms. Huang
has a daughter from a previous relationship −
Michelle − who has
developmental disabilities and requires nearly constant supervision and
support.  Michelle was 18 years old at time of trial.  In late 2008 or early
2009, Mr. Zhao moved into an apartment in the same Vancouver apartment building
where Ms. Huang and Michelle had an apartment.  In 2010, Ms. Huang and
Michelle gave up their apartment and moved in with Mr. Zhao.  They have lived
together as a family since that time.

[9]            
Mr. Zhao testified that Ms. Huang is not an “outdoor girl”; that she is
more a “city girl”.  Mr. Zhao and Ms. Huang do not do outdoor activities
together.  Mr. Zhao testified that he tried to convince her to do activities
with him but that she is not that kind of person and is not interested.  Ms.
Huang confirmed this information but also testified that she does not like to
leave her daughter alone, except at night, when her daughter is asleep.

[10]        
Mr. Zhao testified that he did not reduce the amount of time he was
spending doing recreational activities after he began dating Ms. Huang.  Both
he and Ms. Huang said he said he spent time with her and Michelle, but
still took time to play sports and do recreational activities with other
friends.

[11]        
In February 2008, Mr. Zhao took a job with a company referred to in the
testimony as “Accenture”.  Accenture had a contract to provide computer support
services to BC Hydro.  Mr. Zhao worked at BC Hydro’s central data headquarters
as a senior systems specialist and administrator for “Linux”.   Mr. Zhao
testified that Linux was one of three “operating system platforms” used by BC
Hydro.  He testified that initially BC Hydro had three or four Linux servers
and a BC Hydro subsidiary had twenty Linux servers, but that by the time Mr. Zhao’s
employment with Accenture ended, there were 100 servers using the Linux
platform.

[12]        
Mr. Zhao testified that he worked only 35 hours a week (7.5 hours a
day).  Before the accident, Mr. Zhao had worked overtime only once − for two hours.  Most of
Mr. Zhao’s job was desk work, but he testified he also did some physical tasks
including opening boxes of computer hardware/servers, inspecting the equipment,
and installing servers.

THE MOTOR VEHICLE ACCIDENT

[13]        
At about 5:00 or 6:00 p.m. on Saturday, October 4, 2008, Mr. Zhao was
driving his 1999 Chrysler sedan westbound on Kingsway Avenue in Vancouver.  He
had a co-worker with him, Ms. Bo Deng, who was seated in the front passenger
seat.  Mr. Zhao and Ms. Deng were heading to a restaurant on Kingsway where
they planned to have dinner together.

[14]        
It had been raining, and the pavement was wet.  Mr. Zhao stopped at a
red light at the intersection of Kingsway Avenue and Tyne Street.  He was
waiting for the light to change to green when his vehicle was struck from
behind by the vehicle driven by Mr. Yu.

[15]        
Mr. Yu is a 49-year-old computer software developer who lives in Port
Coquitlam.  On October 4, he was driving his 2002 Nissan Sentra westbound on
Kingsway.  His daughter, who was then 17 or 18 years old, and his daughter’s
friend were passengers in the vehicle.  Mr. Yu was driving them to an address
on Commercial Drive.

[16]        
Mr. Yu saw the lights for westbound traffic at the intersection of
Kingsway and Tyne turn yellow.  He applied his brakes and his vehicle slowed,
but slid on the wet pavement and struck the rear of Mr. Zhao’s vehicle.

AFTER THE ACCIDENT

[17]        
Mr. Zhao testified he was relaxed prior to impact and had no warning the
collision was about to occur.  Mr. Zhao said that after the impact he felt like
he “kind of woke up” and realized he had been in an accident.  His vehicle had
been pushed ahead by the impact.  He noticed that some CD’s and other items
that had been sitting on his vehicle’s dashboard had fallen to the floor of his
vehicle, and the button used to open the trunk of the vehicle, also located on
the dash, had fallen off.  Mr. Zhao testified he felt “dizzy” and “lost”
and immediately felt sore all over his body.

[18]        
Mr. Zhao does not recall having struck his head on anything.  Mr. Zhao
immediately got out of his vehicle and looked at the rear of his vehicle and
the front of Mr. Yu’s vehicle.  He took out his cell phone and dialed 911 to
report the accident.  He approached Mr. Yu’s vehicle.  Mr. Yu and his
passengers − his
teen-age daughter and one of her classmates −
were still seated in their vehicle.  Mr. Zhao began to complain to Mr. Yu about
the collision.  Both men were speaking in the Mandarin language.

[19]        
Mr. Yu checked the front of his vehicle and the rear of Mr. Zhao’s
vehicle.  There was a space between the two vehicles and Mr. Yu assumed that
Mr. Zhao’s vehicle had been pushed forward by the force of the impact.  The
front of Mr. Yu’s vehicle was damaged, with broken headlights and damage to the
bumper.   He did not see any damage to the rear of Mr. Zhao’s vehicle.

[20]        
Mr. Zhao did not tell Mr. Yu that he was injured.  Mr. Yu did not call
for an ambulance or the police.  He and Mr. Zhao began exchanging driver’s
licence and registration information.  A few minutes later an emergency vehicle
− Mr. Yu said it
was an ambulance or fire truck; Mr. Zhao testified if was an ambulance − came past the scene. 
The driver asked whether any one was hurt; said everyone looked okay, and then
drove away.  Mr. Zhao testified that the ambulance driver said there was a more
serious accident elsewhere, so he didn’t ask the ambulance to stay.

[21]        
Mr. Yu testified that none of the occupants of his vehicle were
injured.  After Mr. Zhao and Mr. Yu exchanged information, both men drove
away.  Mr. Yu took his daughter and her friend to their destination on
Commercial Drive.  He did not think it would be safe to drive his vehicle back
to his home in Port Coquitlam, however, so he called the Insurance Corporation
of British Columbia (“ICBC”) and they sent a tow truck to tow Mr. Yu’s vehicle
to a repair shop.  Mr. Yu’s vehicle was later repaired, at a cost of about $6,000.

[22]        
Mr. Zhao’s vehicle was still driveable, but he testified that the back
fender was touching one of the rear wheels.  He and Ms. Deng drove to the
restaurant, which was only a short distance away, and had dinner there, as
planned.  Mr. Zhao testified that while eating at the restaurant he felt “kind
of dizzy” and “shocked”.  After dinner, Mr. Zhao drove home.

[23]        
Ms. Deng did not testify at trial and there is no evidence that she was
injured as a result of the collision.  Mr. Zhao testified he had lost touch
with her.  There is no evidence about any effort having been made to locate her
prior to trial, but the defendant has not asked the Court to draw an adverse
inference from the failure to call Ms. Deng to testify.

[24]        
Damage to Mr. Zhao’s vehicle is not readily apparent in the photographs
submitted at trial.  Mr. Zhao testified that when he took his vehicle to a
garage, they showed him that his trunk lid did not open properly as a result of
the impact.  Mr. Zhao’s 1999 Chrysler was repaired and he continued to
drive it until it was damaged in a subsequent motor vehicle accident in 2009
and “written off”.  At time of trial Mr. Zhao did not have a vehicle of his
own.  Ms. Huang had a vehicle, which both she and Mr. Zhao used.

[25]        
Mr. Zhao did not sleep well the night of the accident.  His neck and
back started to feel sore, and he had a headache.  Mr. Zhao did not have a
family doctor at the time.  The next day −
Sunday − Mr. Zhao
went to the emergency department at Burnaby General Hospital.  He told the
triage nurse he had a headache, and neck and lower back pain.  An x-ray of his
neck indicated no injury but early arthritic changes could be seen at the C6-7
level.   Mr. Zhao denied having experienced a loss of consciousness and all
“focal neurological signs” were assessed as normal.  The diagnosis was soft
tissue injury neck and back.  Mr. Zhao was told to apply ice, take over-the-counter
Advil or Tylenol, follow up with a family doctor, and he was told about head
injury precautions.

[26]        
Mr. Zhao went to work as usual on the day following the accident.  He
testified that because this was a new job and he needed the work, he did not
ask for time off.  He worked full days on October 6, 7 and 8.  However, Mr.
Zhao did not feel he was performing well at work.  He felt he could not
concentrate; and he had to stand up and change position to relieve pain and
stiffness in his neck and back.  Mr. Zhao asked his supervisor for some time off
and he did not work on October 9.  He worked a full day on October 10.

[27]        
On October 10, Mr. Zhao went to a medical clinic where he saw Dr. Minh
Nguyen, who became Mr. Zhao’s family doctor.  He told Dr. Nguyen that following
the accident his neck was stiff and that the next day he felt dizzy, had a
headache, and had pain in his neck, left shoulder and lower back.  He said he
still felt dizzy and sleepy.  Dr. Nguyen assessed reduced range of neck motion,
and tenderness in the occiput area.  Mr. Zhao’s neurological examination was
entirely normal.  Dr. Nguyen’s diagnosis was “strain neck and low back”
and “concussion”.  Dr. Nguyen prescribed an analgesic, gave Mr. Zhao a
note for his employer suggesting that he remain off work from October 14 to 20;
and recommended that Mr. Zhao have physiotherapy and acupuncture.

[28]        
Mr. Zhao took six days off work but worked a full day on October 21. 
After that, Mr. Zhao’s employment record indicates he worked a full day every
second or third day and took the intervening days as sick days for a week or
two; and then worked an irregular pattern of half-days and full days
interspersed with sick days until the third week of December.  There were,
however, a couple of days in November 2008 when Mr. Zhao worked overtime.  Mr.
Zhao said his team had taken on a new project and he needed to put in extra
time.

[29]        
Mr. Zhao returned to work virtually full-time in the first part of
January, with the occasional one or two hours of paid medical leave.  From a
comparison of Mr. Zhao’s work records to his physiotherapy records, it
appears that his employer allowed him to have paid time off work for an hour or
two on the days he had physiotherapy treatment.

[30]        
During the week of January 15 to 22, 2009, Mr. Zhao had the flu,
according to an entry in his physiotherapist’s records.  The physiotherapist
noted that Mr. Zhao reported feeling “…very sore this past week from laying
down most of the time recovering from the flu”.

[31]        
From January 23 to February 20, Mr. Zhao took vacation and “flex days”
for a continuous period.  Mr. Zhao testified that he travelled to China to
celebrate the Chinese New Year.  He saw physiotherapist Derek Young on February
23, 2009 and reported that he had low back pain from the long flight from
China.

[32]        
When he returned to work in late February 2009, Mr. Zhao began a pattern
of 6.5 and regular 7.5 hour days.  Mr. Zhao testified he later missed some work
for medical appointments and had occasional days when he missed work due to
back or neck pain.

[33]        
Mr. Zhao’s counsel told the Court Mr. Zhao had not lost any income as a
result of time off work and he is not making a claim for past loss of income.

[34]        
Mr. Zhao testified that Dr. Nguyen recommended physiotherapy and
acupuncture.  Mr. Zhao tried acupuncture but found it did not make him feel
better and he stopped the treatment.

[35]        
The BC Hydro building where Mr. Zhao was working had a fully equipped
gym on a lower floor and a physiotherapist −
Derek Young − had a
physiotherapy clinic adjacent to the BC Hydro gym.  Mr. Zhao saw Mr. Young for
the first time on October 23, 2008 and continued going to physiotherapy until
February 2012 when Mr. Zhao’s employment at the BC Hydro building came to an
end.  Mr. Zhao had a good extended medical plan through his employment with
Accenture and most of the cost of the physiotherapy treatment was paid by his
extended health benefits plan.  Initially, Mr. Zhao went for physiotherapy
treatment two times a week.  Later, this was reduced to once a week.  As I
noted earlier, on the days Mr. Zhao had physiotherapy treatments, he worked 5.5
or 6.5 hours and was given the rest of the shift as paid medical leave.

[36]        
In the notes he made on October 23, 2008, Mr. Young noted “possible
brief LOC”.  I do not know if Mr. Zhao said it was possible he had briefly lost
consciousness or if this was Mr. Young’s speculation.  Mr. Young began treating
Mr. Zhao on October 24.  He noted significant limitation in the range of
motion in the cervical, thoracic and lumbar spine secondary to pain and muscle
spasm.

[37]        
Mr. Zhao testified that he stopped having physiotherapy treatments as
soon as he was laid off by Accenture early in 2012 because his extended medical
benefits ended.  He told Dr. Koo, a physiatrist who assessed Mr. Zhao in 2013
at the request of Mr. Zhao’s counsel, that he had stopped going for
physiotherapy for two reasons; the second being that he found it inconvenient
to travel from where he lived to Mr. Young’s clinic when he was no longer
working in the same building.

[38]        
Mr. Zhao testified that he was referred to several doctors, but could not
recall all of their names.  He recalled seeing a neurologist whose surname was
“Nagaria”.  He said Dr. Nagaria sent him for a CT scan of his head, which
revealed no anomalies.  Mr. Zhao recalled seeing a rheumatologist whose surname
was Tsang.  He recalled that that Dr. Tsang told him he needed to be more
active and recommended swimming.  Mr. Zhao recalled seeing a physiatrist whose
name he did not recall.  He said he did not like the physiatrist, so did not
follow up on the treatment suggestions and did not return to see the
physiatrist.

[39]        
The clinical records of Mr. Young and Dr. Nguyen indicate that Mr. Zhao
reported feeling that his memory was not as good as it had been before the
accident.  He reported neck and shoulder pain, headache and back pain.  The
discomfort interfered with his ability to sleep and he was sometimes awakened
in the night by pain.  If he had a more intensive day at work his pain was
exacerbated and he was more inclined to develop a headache.

[40]        
By December 19, 2008, Mr. Zhao reported he was having headaches less
often and although he still had neck and mid-back pain, his low back was the
most problematic.  His range of motion was gradually improving.  Sleep
continued to be problematic.

[41]        
Mr. Zhao testified that he felt his memory and concentration were not as
good after the accident as before.  There is no evidence, however, that Mr.
Zhao’s accident injuries adversely affected his reputation or standing as an
employee or that he ever received a negative evaluation.  Mr. Zhao perceived that
he was having memory problems following the accident, but the only example he
gave while testifying, or in speaking to the various health professionals he
had seen since the accident, was that he had more difficulty remembering the
numerous computer passwords he was obliged to use at work and had mixed up one
or more appointments.  He reported to Derek Young on March 27, 2009 that his
memory was “slowly coming back, but still requires a lot of reminder notes”. 
He told Mr. Young he was working almost full-time by that date.

[42]        
An x-ray of Mr. Zhao’s back done in January 2009 indicated no
abnormalities attributable to the motor vehicle accident, but mild arthritic
changes− disc space
narrowing and small anterior osteophytes −
at almost all levels.

[43]        
By March 12, 2009, Mr. Zhao had resumed playing ping-pong with “minimal
pain”.  He was doing exercises at work with Mr. Young and also reported that he
was doing recommended exercises at home.  In April, he started doing Tai Chi. 
He had been working full-time for about a month.  Mr. Young found that his neck
range of motion had improved and he had good shoulder movement, although was
tender between the shoulder blades.  He continued to have episodes of headache,
however, sometimes severe enough to cause vomiting.

[44]        
In April 2009, Mr. Zhao worked overtime on several occasions.

[45]        
By May, Mr. Young was urging Mr. Zhao to change his diet in order to
lose weight and to exercise more.  Near the end of May 2009, Mr. Zhao told Mr.
Young that engaging in “sexual activities” with his partner was “…a problem due
to pain in low back”.  After that date, there are occasional references to this
problem in Mr. Young’s notes.

[46]        
Mr. Zhao was continuing to play table tennis.  It appears he played
quite often − Mr.
Young has a note that on June 18 Mr. Zhao had played for 40 minutes with only
“some low back soreness”.  He played for 30 minutes on June 22 with no pain. 
He attempted to hit golf balls, but quit after 10 balls due to soreness.  Mr.
Scott recommended using a weighted club.  Mr. Zhao again reported having
attempted to hit golf balls on June 29 and July 16, but continued to have
difficulty.  By August 10, 2009, Mr. Zhao reported having no difficulty playing
table tennis for more than 30 minutes.  By August 27, 2009, Mr. Zhao reported
being able to have sex for 10 to 15 minutes before having to stop due to low
back pain.  He reported improvement in his sex life on September 10, 2009. 
Significant improvement was reflected in Mr. Young’s note of September 13,
2009.  He reported that Mr. Zhao had demonstrated improved ability to engage in
table tennis and a general exercise program with little to no range of motion
deficits.  He noted that “activities of daily living” have been recovered. 
Recreational activities such as soccer had not been attempted and Mr. Young
recommended that Mr. Zhao work with a personal trainer.

[47]        
Sometime in 2009, Mr. Zhao was involved in a second motor vehicle
accident.  He had driven to the west coast of Vancouver Island with a friend. 
Mr. Zhao was driving his 1999 Chrysler 300 M.  He drove off the road and
into a ditch.  Mr. Zhao testified he was not injured.  His insurer declined to
repair his vehicle and it was “written off”.  Mr. Zhao decided not to replace
the vehicle.  Ms. Huang has a vehicle and Mr. Zhao has been using her
vehicle.

[48]        
Mr. Zhao had no physiotherapy treatments between September 1 and
November 12, 2009.  He returned to see Mr. Young on November 12 and reported
that his back felt worse without treatment.   On January 4, 2010, Mr. Young
reported that Mr. Zhao was doing well but that his low pain back returned with
prolonged sitting.  On February 8, Mr. Zhao reported he had gone to the driving
range but had to stop after hitting a few balls.  Mr. Zhao told Dr. Nguyen he
was taking prescription pain medication about three to four times a week, but
was not taking a sleeping pill as he was trying to get off all medications.  He
reported having taken a break from physiotherapy for Chinese New Year.

[49]        
In August 2010, Mr. Zhao reported he was continuing to improve but that
after sitting in his car for three to four hours he needed to take a break.  He
was continuing with physiotherapy.  He reported he was playing ping pong, doing
Tai Chi, and volleyball.  He said he had tried yoga but did not like it.

[50]        
Dr. Nguyen’s records indicate that Mr. Zhao saw Dr. van Rijn, a
physiatrist, for “medical-legal reasons” in May 2010.  Dr. Nguyen noted that
Dr. van Rijn thought a referral to Dr. Tsang, a rheumatologist, might be
beneficial.

[51]        
Mr. Zhao saw Dr. Tsang in December 2010.  Dr. Tsang’s opinion was that
Mr. Zhao’s aches and pains were “…of soft tissue origin”.  Dr. Tsang
recommended that Mr. Zhao start an active rehabilitation program and gradually
increase aerobic exercise, and that his symptoms were likely to improve.

[52]        
On December 10, 2010, Mr. Zhao told Dr. Nguyen he had seen a specialist
two days earlier and had been told to get more exercise by using a stationary
bike and swimming.  Mr. Zhao reported he was playing ping pong once or twice a
week.  He still felt his memory was “…not good”.  He told Dr. Nguyen he was
going to China at the end of January 2011 and would be there for two months.

[53]        
Mr. Zhao was on vacation from January 31 until March 15, 2011 and
travelled to China during this time.

[54]        
Mr. Zhao saw Dr. Tsang again on March 17, 2011.  He reported that he was
playing table tennis for 30 to 45 minutes once or twice a week; swimming for 30
to 40 minutes two to three times a week, and was walking better, but still had
some sleep interruption and “off/on” neck pain.  Dr. Tsang recommended that he
increase the intensity of his exercise.

[55]        
There are gaps in Mr. Zhao’s employment records that were not explained
at trial.  Mr. Nguyen’s records indicate that Mr. Zhao went to China again
between July 15 and August 15, 2011.  In October 2011, Dr. Nguyen noted that
Mr. Zhao had gained weight.

[56]        
Dr. Nguyen’s records indicate that Mr. Zhao was seen by Dr. Nagaria, a
neurologist, on October 25, 2011.  Dr. Nagaria noted that a neurological
examination was normal, and “higher mental functions are intact and normal”.  A
CT of Mr. Zhao’s head on December 7, 2012 revealed no abnormality.

[57]        
Mr. Zhao’s last physiotherapy treatment was February 27, 2012.

[58]        
Mr. Zhao worked for Accenture at BC Hydro’s premises until March 2012
when Accenture lost the BC Hydro contract.  Hundreds of employees, including
Mr. Zhao, were laid off.   Everyone on the 20-person team with whom Mr.
Zhao worked was also laid off.

[59]        
The new BC Hydro contract went to Telus.  Telus hired some of
Accenture’s former employees.  Mr. Zhao was offered a contract by Telus, but he
turned down the offer.  He testified that Telus was offering to pay around $50
an hour, which he did not consider to be a fair wage.  He said he was not
interested unless they paid more and they did not offer to pay more.  He
testified he also thought Telus was trying to take advantage of him because he
had been laid off; and he did not like the fact that he was approached by
Telus’s “agent” rather than directly by Telus.

[60]        
One of Mr. Zhao’s former co-workers, Tong (Alex) Wu, testified for the plaintiff. 
He worked with Mr. Zhao when Accenture had the contract at BC Hydro.  Before
that time, he had worked for BC Hydro directly.  Mr. Wu and Mr. Zhao worked on
the same team and on the same projects, and reported to the same manager.  He
said that he and Mr. Zhao had a very good working relationship.  He recalled
that Mr. Zhao had been in a car accident, but could not recall when that had
been.  He said that he and Mr. Zhao both used the services of the
physiotherapist who worked in the BC Hydro building.  Mr. Wu said he knew Ms.
Deng but did not know that she had also been involved in the accident.  Mr. Wu
testified that he was able to find a job quite quickly after he was laid off,
but some of his former colleagues remained unemployed at the time of this
trial.

[61]        
 Mr. Wu testified that while working for Accenture he had a lot of
passwords; that he did not rely on his memory for the passwords, and that he
had his own method of storing the passwords in a secret place.  He said that he
had a “key” that he could always remember and with that key he could access
other encrypted passwords that he needed to know.

[62]        
After being laid off by Accenture and rejecting Telus’s offer of
employment, Mr. Zhao looked for a new job without success until April 2013. 
Mr. Zhao testified that he did some short term contracts for various companies
and individuals while he was unemployed but that he did not earn a lot of money
for this work.

[63]        
Between September 18 and November 20, 2012, Mr. Zhao had five sessions
with Mr. Tacky Chan, a registered clinical counsellor who speaks Mandarin.  Mr. Zhao
testified he went to see Mr. Chan so that he would not become depressed.  Mr.
Zhao terminated the counselling sessions after his visit on November 20, 2012. 
He told Mr. Chan that he believed he was coping and did not need to continue in
counselling.  Mr. Chan’s diagnosis was “adjustment disorder with depressed
mood”.

[64]        
Some of the information Mr. Chan has recorded in the history section of
his report dated January 21, 2013 is inaccurate or incomplete based on the
testimony before me.  I have little doubt however, that Mr. Zhao’s fairly
lengthy period of unemployment placed him under financial strain and that that
strain, together with the continuing symptoms of neck and back pain and the
resulting impairment of Mr. Zhao’s enjoyment of recreational activities
likely did depress his mood by the fall of 2012.

[65]        
In April 2013, Mr. Zhao was hired by the B.C. Liquor Distribution Branch
as a senior server analyst.  This is a full-time regular position.  Mr. Zhao
said he primarily looked for work through on-line sources; and did have a few
interviews for jobs that paid between $80,000 and $95,000.  There is no
evidence indicating that Mr. Zhao was hampered in his job search by symptoms
related to the motor vehicle accident.

[66]        
Mr. Zhao testified that his position with the B.C. Liquor Distribution
Branch included a probation period that would end in December 2013.  The offer
of employment dated April 5, 2013 states that the probationary period is 913
hours.  At time of trial, Mr. Zhao had been given no indication that he was not
performing well at work or that he would not successfully complete his
probationary period.  He testified he liked the job, but the salary was less
than he would like.  The job pays $2,214 dollars a month based on $31.62 an
hour plus a “Temporary Market Adjustment” of 6.6%.  Mr. Zhao testified he was
hoping to be promoted.

[67]        
Mr. Zhao’s current job is a desk job and does not require physical labour. 
Mr. Zhao testified he is working to full capacity physically and
cognitively.  His employer provided him with an ergonomic assessment of his
work station and he has a special chair.  He has scheduled breaks but is also
able to change postures and take short breaks when he wishes to do so.

[68]        
Mr. Zhao testified that he has travelled to China three or four times
since the accident in October 2008.  He testified that he experiences
discomfort during the long flight and usually selects an aisle seat so he can
easily get up and move to the back of the plane where he can stand for a time.

[69]        
Mr. Zhao testified that although he has had improvement, he continues to
experience pain in his neck and back, has headaches, and is less flexible than
he used to be.  He testified that he has given up most of the sports and
recreational activities he used to enjoy.  He goes swimming, but does not golf,
hike, ski, fish or play badminton.  He did not testify about any attempts to
ski, hike, fish or play badminton.  As noted earlier, he did report attempting
to hit golf balls at a driving range on a couple of occasions; and had returned
to playing table tennis a couple of times a week a few months after the
accident.

[70]        
On February 3, 2012, Mr. Zhao had a CT scan done of his lumbar spine. 
The CT scan indicated that Mr. Zhao has a “broad based L4/5 disc herniation”. 
The evidence does not establish on a balance of probabilities that this disc
herniation was caused by the October 2008 motor vehicle accident since an x-ray
done of Mr. Zhao’s back in January 2009 showed mild degenerative changes
at all levels of the spine, but did not reveal a disc herniation.

[71]        
Mr. Zhao’s last appointment with Dr. Nguyen was October 29, 2012.  He
did not consult Dr. Nguyen after that date.  When Dr. Nguyen learned that he
would be required to testify at this trial, he asked Mr. Zhao to come to see
him and that consultation took place in September 2013.  Mr. Zhao testified
that he stopped seeing Dr. Nguyen because his extended medical benefits ended
when he was laid off by Accenture and he believed he would have to pay for
medical care.  That explanation is not credible.  Mr. Zhao’s employment with
Accenture ended in the spring of 2012 but he continued to see Dr. Nguyen in
subsequent months, up to and including October 2012.  I infer that he stopped
seeing Dr. Nguyen after October 2012 because his condition had improved to the
point that he no longer required prescription medication to cope with the
residual symptoms.

[72]        
Mr. Zhao’s PharmaCare record indicates he last filled a prescription for
trazodone, the pain medication prescribed by Dr. Nguyen, on October 23, 2012
and had not refilled the prescription after that date (the PharmaCare record
ends September 18, 2013, the date it was sent to counsel).

[73]        
When interviewed by occupational therapist Rob Corcoran in September
2013, Mr. Zhao reported that he had not taken any prescription medication for
pain, or muscle relaxants for some time.  He had not taken sleep medication at
all in the past month.  He reported having taken only two to three over-the-counter
regular strength Tylenol in the past month.  He was not taking any medication
for sleep, or for mood or anxiety symptoms.

[74]        
Mr. Zhao testified that he and Ms. Huang want to have children.  I noted
earlier that Ms. Huang was 41 years old when the couple met.  She was 44 when
they began living together in 2010 and 47 at time of trial.  Mr. Zhao testified
that he and Ms. Huang had not planned to have children before the 2008
accident; that they were just dating then, but that they had later discussed
having children.  Ms. Huang testified that it was primarily Mr. Zhao who wanted
to have a child.  She testified they were having a “hard time” from which I
infer that they have been unable to conceive.  Both Mr. Zhao and Ms. Huang
testified that Mr. Zhao’s injuries have affected their enjoyment of sexual
intimacy.  Mr. Zhao did report to Dr. Nguyen in May 2009 that he was unable to
engage in sexual activities with his partner but by June 2009 he reported that
his sex life was “so/so” due to back pain, suggesting that he had been able to
resume sexual activity, and by August 2009 he reported being able to engage in
“intimacy” for 10 to 15 minutes before having to stop due to pain.

[75]        
The evidence does not prove on the balance of probabilities that the
accident injuries have rendered Mr. Zhao impotent or sterile. There are other
equally probable explanations, including sterility due to other causes on the
part of Mr. Zhao or infertility on the part of Ms. Huang.  Perhaps out of excessive
circumspection neither counsel fully explored this topic in direct or cross.  I
am unable to conclude on the evidence before me that Mr. Zhao’s childless state
is causally related to the motor vehicle accident.

DID MR. ZHAO SUFFER BRAIN INJURY?

[76]        
Mr. Zhao alleges that he suffered a mild traumatic brain injury as a
result of the accident and that he continues to have problems with memory and
concentration as a result.

[77]        
The evidence of brain injury is not compelling.  There is no evidence
that Mr. Zhao struck his head as a result of the collision.  He testified
that he was wearing his seatbelt.  I accept that it is possible for concussion
or mild traumatic brain injury to occur without an actual blow to the head, but
there is also no convincing evidence of a loss of consciousness.  Mr. Zhao said
he was surprised to find himself in the middle of the intersection, but Mr.
Yu’s testimony is that Mr. Zhao was out of his vehicle immediately following
the collision and Mr. Zhao had the presence of mind to have already got out his
cellular phone.  He had dialled 911 and was speaking on the phone as he walked
towards Mr. Yu’s vehicle.  Mr. Yu and his passengers were still seated in their
vehicle.  There is no evidence indicating Mr. Zhao was confused or
inarticulate or behaving in an unusual manner during his interactions with Mr.
Yu following the collision.

[78]        
Mr. Zhao felt well enough to continue with his dinner plans and did not
go to the emergency department until the next day.  I infer that he went to the
emergency department because he did not have a family doctor.  He complained of
headache, dizziness, neck and back pain.  There is no indication that he
reported a loss of consciousness.  I note the emergency department physician
did include “H.I. (head injury) precaution” with his/her list of other
recommendations.

[79]        
Ms. Deng might well have been able to provide testimony about the
collision and Mr. Zhao’s condition and behaviour following the collision and
during the time she and Mr. Zhao were having dinner at the restaurant nearby. 
I have not been asked to draw an adverse inference from the failure to produce
Ms. Deng as a witness.

[80]        
Mr. Zhao’s testimony about the symptoms he attributes to the alleged
brain injury was not persuasive.  He said he could not recall passwords as well
as he had prior to injury.   There are general mentions of “short-term memory
loss” and that Mr. Zhao was “forgetting simple tasks & appointments”
in physiotherapist Derek Young’s records, but Mr. Zhao gave no examples of any
simple task or appointment that he had missed or forgotten.  Dr. Nguyen’s
diagnosis of concussion was based primarily on Mr. Zhao’s report that he was
“sleepy”.  Mr. Zhao testified that he did not sleep well because of discomfort
in his neck and back, which would account for him being “sleepy”.

[81]        
Dr. Koo, a physiatrist retained by Mr. Zhao’s counsel, administered a
mini-mental status test to Mr. Zhao on March 25, 2013, the first and only time
he assessed Mr. Zhao.  Dr. Koo considered Mr. Zhao’s mental status examination
to be “subnormal”.  He testified that Mr. Zhao scored only 20 out of a possible
30 on the “Montreal Cognitive Assessment”.  Factoring in the fact that English
is Mr. Zhao’s second language and could have affected his “sentence
repetition”, Dr. Koo adjusted the score to 22/30.  Dr. Koo reported:

In
particular, he lost two marks for visuospatial/executive functioning during
clock construction, had difficulty with a five-digit forward span, had slowed
serial seven subtractions with one error, had difficulty with sentence
repetition, had delayed recall of 3/5 word items; and was disorientated to date
and day (which he was surprised by when corrected afterwards).

[82]        
Dr. Koo testified that Mr. Zhao lost two of three available points on
the part of the test where he was asked to draw a clock face.

[83]        
I did not find Dr. Koo to be a persuasive witness on the issue of brain
injury.  Having obtained a “subnormal” result −
Dr. Koo also described it as a result indicating “significant cognitive
impairment”− on the
mini-mental examination Dr. Koo made no effort to verify the accuracy of his
findings by administering more sensitive assessment tools or taking a more
detailed history.  Dr. Koo did not even turn his mind to the question of how
someone with “significant cognitive impairment” could have been performing
highly technical, complex and cognitively challenging work as a senior computer
systems specialist, apparently successfully, immediately after the accident and
for the next several years.  It is particularly difficult to understand how Dr.
Koo could have thought Mr. Zhao was so cognitively impaired that he was
“disorientated to date and day”.

[84]        
Dr. Koo’s assessment can be contrasted with that of Dr. Dost, who noted
that it was unlikely that there was a “neurological disability”, given the fact
that Mr. Zhao had been working full-time regular hours until he was laid off;
and is “…independent with his basic and instrumental activities of daily
living”.

[85]        
Dr. Craig, a physiatrist retained by counsel for the defendant, did not
meet with or examine Mr. Zhao, but read the medical records and reports and
provided a report responding to the opinions expressed by Dr. Squire and Dr.
Koo.  Dr. Craig noted that a score of 20 out of 30 on the test administered by
Dr. Koo:

…would
not be consistent with someone who had been doing an intellectually challenging
job.  This is a score more typical of someone with a significant brain injury,
early dementia, or delirium.

[86]        
I give no weight to Dr. Koo’s opinions.  I am satisfied his assessment
was flawed and inadequate; that he based his opinion on the result of one
isolated and rudimentary test, and failed to take into account highly relevant
information about Mr. Zhao’s real world history and abilities.

[87]        
If Mr. Zhao did suffer a concussion as a result of the “whip-lash”
motion of his head and upper body, I am satisfied it was very mild indeed; and
that Mr. Zhao has made an excellent recovery.

[88]        
When interviewed by occupational therapist Rob Corcoran in September
2013, Mr. Zhao reported that his memory had improved but remained below his
pre-accident baseline.   He described occasional difficulty with concentration
but he said it occurred when he was experiencing more severe back or headache
pain.  He denied having difficulty with shifting/alternating, divided, or
sustained attention.  Mr. Zhao denied having any problems with executive
functions such as organization, planning and sequencing of multi-step tasks. 
He denied difficulty initiating, prioritizing, sequencing or completing
multiple tasks with competing deadlines.  He also denied having any concern
with his overall information processing speed.  Mr. Corcoran noted that
Mr. Zhao had no difficulties following his verbal instructions throughout the testing.

[89]        
I find it is more probable than not that any occasional memory or
concentration problems Mr. Zhao currently perceives are more likely related to
fatigue caused by interrupted sleep when Mr. Zhao is having an episode of lower
back or neck discomfort; or pain associated with his lower back or headache.

SUMMARY OF ACCIDENT INJURIES

[90]        
I conclude that Mr. Zhao suffered soft tissue injuries to his neck,
mid-back, left shoulder and lower back as a result of the motor vehicle
accident on October 4, 2008.  He has also experienced headaches, sometimes
severe.  Some of the experts are of the opinion that the headaches are
cervicogenic in nature; meaning they are caused by stiffness and spasm in the
neck.  Dr. Squire’s opinion was to the contrary.  She believes that the neck
pain is caused by the headaches. She noted that Mr. Zhao’s headaches have some
“migrainous features”.   Mr. Zhao testified that he is sometimes sensitive to
light and sound when he has headache, and sometimes, but not always,
experiences nausea.  Dr. Dost’s opinion is that the headaches are migraines,
caused by the accident and perpetuated by psychological factors and sleep
disruption.  I need not decide on the precise nature of the headaches as all of
the experts agree that the headaches are causally related to the motor vehicle
accident.

[91]        
Mr. Zhao’s shoulder and mid-back pain appears to have resolved almost
entirely.  However, although the symptoms did diminish and Mr. Zhao recovered
range of motion in his neck and lower back during the first six months
following his injury and gradual improvement thereafter, he continues to have
episodes of neck and lower back pain, and he also experiences occasional
headache, sometimes severe.  The back pain is exacerbated by sitting for long
periods of time, and by some physical activity.

[92]        
When Mr. Zhao has pain in his neck or lower back, or significant
headache, it interferes with and interrupts his sleep.  Non-restorative sleep
combined with psychological issues sometimes affects Mr. Zhao’s concentration
and focus.

[93]        
I consider it more probable than not that Mr. Zhao will not fully
recover and will continue to have episodes of lower back and neck pain, likely
diminishing in frequency and intensity over time.  Dr. Craig’s opinion is that
there is a low probability that Mr. Zhao’s symptoms will fully resolve but
there are good treatment options that could result in moderate improvements. 
Some of the specialists who have assessed Mr. Zhao have recommended various
treatment modalities.  Dr. Squire, for example, recommended diagnostic
blocks and diagnostic injections.  Mr. Zhao has resisted any treatment that
involves injections.  There is an indication in the records that he has a
phobia in relation to needles.

[94]        
Some of the specialists to whom Mr. Zhao was referred by Dr. Nguyen
recommended that Mr. Zhao engage in an active program of exercise to improve
his overall fitness and strength.  Mr. Zhao has, I conclude, become quite
inactive although he continues to swim and walk regularly.  When interviewed by
occupational therapist Rob Corcoran in September 2013, Mr. Zhao said that his
lack of physical activity and deconditioning was due not only to discomfort
from his injuries but also the fact that his job is sedentary.  I conclude that
resuming a program of active exercise is likely to bring about improvement in
Mr. Zhao’s symptoms.

[95]        
Dr. Christian’s opinion, which I accept, is that Mr. Zhao’s prognosis is
generally favorable and that he should be able to resume normal activity and
should not experience any significant restriction of function when the point of
optimum recovery is achieved.

[96]        
As he now has a disc hernia in his lumbar spine, not shown to be caused
by the accident, it is possible that he would eventually have begun to have
lower back pain even if the accident had not happened, but the timing of onset
and the nature and severity of any symptoms he may experience in future cannot
be determined at this time.

LOSS OF THE CAPACITY TO EARN INCOME

[97]        
Mr. Zhao is seeking an award of $195,000 for loss of earning capacity. 
I am not persuaded that the accident injuries have impaired or limited Mr.
Zhao’s capacity to earn income or rendered him less valuable to himself or to
others, as an employee.   The plaintiff has failed to prove that there is a
realistic possibility that Mr. Zhao will experience unemployment, reduced
employment, or less remunerative employment as a result of his symptoms.

[98]        
I have already said that Mr. Zhao returned to work the day after the
accident and remained at work for the next three days.  After seeing Dr. Nguyen
he was off work for a period of a few weeks, then returned to work on a
part-time basis for a couple of months after which he resumed working
full-time.  Each year thereafter Mr. Zhao’s earnings increased.  He earned
$48,613 in 2008 (he was unemployed that year until he started working with
Accenture in May); $64,695 in 2009; $71,077 in 2010; and $85,664 in 2011.  The
increases in earnings suggest that Mr. Zhao was a valued employee.  There is no
indication he was ever reprimanded, disciplined, or criticized in relation to
his work performance.  His income dropped in 2012 only because he was laid off
when Accenture lost the contract with BC Hydro.

[99]        
There is no evidence that Mr. Zhao lost his job with Accenture for
work-performance reasons.  Hundreds of employees were laid off, including the
entire team of which Mr. Zhao was a member.  Mr. Zhao reported to occupational
therapist Rob Corcoran that his work at Accenture required him to perform
heavier material handling on a “rare basis” −
perhaps once every seven months, and that assistance was readily available. 
Mr. Zhao’s current job appears to involve even fewer physical demands than his
previous employment.

[100]     There is
no evidence from which the Court can infer that Mr. Zhao would have found new employment
sooner; or that he would have found more remunerative employment, but for the
accident injuries.  In the plaintiff’s written submissions, at paragraph 99,
counsel for Mr. Zhao submitted that Mr. Zhao may have failed to get one of the
positions he applied for because of his injuries; or that but for the accident,
Mr. Zhao might have pursued more challenging and more remunerative work.  The
problem with this submission is that there is simply no evidence that Mr. Zhao
ever disclosed his accident history to any prospective employer; and Mr. Zhao
did not testify that he would have pursued more challenging or more
remunerative work if he had not been injured.  Counsel for Mr. Zhao relied on
the decision in Mar v. Young, 2009 BCSC 1251.  While I do not disagree
with what Justice Bracken said in that case, I do note that the decision
pre-dated the decision in Perren v. Lalari, 2010 BCCA 140.  In any
event, this case must be decided on its facts, which are different from those
in Mar v. Young.

[101]     I infer
from Mr. Zhao’s decision to reject Telus’ offer of employment that he did not
believe, in the spring of 2012, that the lingering symptoms from his accident
injuries would adversely affect his ability to find a new job as good or better
than the job he had been offered by Telus.  If Mr. Zhao had accepted the offer
from Telus he would have returned to work immediately and he would have been
earning more than he earns in his current position.

[102]     Mr. Zhao
was assessed by occupational therapist Rob Corcoran on July 2, 2013.  Mr.
Corcoran administered a functional capacity evaluation.  He conducted a
detailed interview of Mr. Zhao regarding his work history.  Mr. Zhao reported
that during the time between being laid off by Accenture and being hired by the
Liquor Distribution Branch, Mr. Zhao worked between 0 and 20 hours a week
assisting persons or small companies with their computers and/or computer
networks.  Mr. Zhao told Mr. Corcoran he had no difficulty performing the
physical or cognitive demands of this work.  Mr. Zhao reported that his work
with the Liquor Distribution Branch was even less physically demanding than his
work at Accenture.  Mr. Zhao told Mr. Corcoran that he had had no difficulties
performing his work to date.

[103]     During the
assessment, Mr. Zhao was able to perform 44 minutes of continuous activity
related to internet research.  Mr. Zhao had no difficulty obtaining and
recording the required information for the activity and demonstrated
“…durability with task intensive sitting activity while seated in a supportive
office chair”.

[104]     Mr.
Corcoran’s opinion is that Mr. Zhao has the ability to perform his current
occupation as a senior server analyst.  Based on Mr. Zhao’s description of his
work, Mr. Corcoran classified it as requiring sedentary strength.  Mr. Zhao
meets or exceeds the physical requirements for this job classification.

[105]     Mr. Zhao
was 44 years old when the accident happened and 49 at time of trial.  Given his
education, professional qualifications and work history, I consider there to be
no possibility that Mr. Zhao would, but for the accident, have changed to a
type of work involving physical labour beyond his capacity.

[106]     I make no
award for loss of capacity to earn income.

SPECIAL DAMAGES

[107]     The
majority of the special damages claimed by Mr. Zhao relate to the uninsured
portion of the physiotherapy charges, and prescription medications.  It is
likely, in my view, that Mr. Zhao continued to have physiotherapy treatment
after it ceased to have a therapeutic effect possibly because he had the
convenience of a physiotherapist located at his workplace.  However, Mr. Zhao
testified and reported to Dr. Nguyen and others that physiotherapy did give him
temporary relief and that his symptoms were worse during extended periods that
he did not have physiotherapy, for example, when he was on vacation in China. 
From time to time, Dr. Nguyen recommended that Mr. Zhao have physiotherapy.

[108]     Dr. Nguyen
and various specialists prescribed medications for Mr. Zhao in an effort to
provide him with relief from discomfort and to improve the quality of his
sleep.  There is no indication that Mr. Zhao used medication excessively.  He
expressed his desire to stop taking prescription medication and had essentially
achieved that goal in the year prior to trial.  I am satisfied that Mr. Zhao
should be compensated for the cost of medications to alleviate symptoms caused
by the accident

[109]     There was
a small cost for the counselling services of Mr. Chan.  The defendant concedes
that the majority of the special damages claimed are warranted.  I award the
sum of $12,000 for special damages.

COST OF FUTURE CARE

[110]     Mr. Zhao
is seeking an award of $45,000 for the cost of future care.  The defendant
submits an award no greater than $5,000 is warranted.

[111]     Mr.
Corcoran provided information about the predicted costs of various therapies
and treatments based on recommendations provided by Dr. Squire and Dr. Koo.

[112]     I consider
it to be unlikely that Mr. Zhao will be willing to undergo many of the
treatments that have been suggested.  Dr. Squire recommended some of these
treatments as early as November 2011 but despite his frustration with the
slowness of his recovery, Mr. Zhao has not acted on any of her recommendations
for diagnostic injections.  Mr. Zhao has been resistant to suggestions for any
type of diagnostic or therapeutic injections and I think it highly unlikely
that he would consider any of the suggested modalities, which included botox,
local anaesthetic, corticosteroids and “dry-needling”.  There is an indication
in Mr. Zhao’s medical records that he has a phobia about needles.  He
discontinued acupuncture without completing the recommended treatment regime. 
He refused to return to a specialist who had recommended injections.

[113]     Mr. Zhao
is also resistant to psychological intervention.  He discontinued counselling
with Mr. Chan after only five sessions in the fall of 2012 and has shown no
interest in further counselling.  Mr. Corcoran had Mr. Zhao complete a Major
Depression Inventory in September 2013.  Mr. Zhao scored 4 out of 50.  Mr. Corcoran
reported that Mr. Zhao’s score not only did not indicate major depression but
that his score patterns “…were not close to meeting…criteria for mild
depression…”

[114]     For
approximately a year prior to trial, Mr. Zhao had not used any prescription
medications for pain and had not taken any medication to promote sleep in the
month before he was assessed by Mr. Corcoran in September 2013.  Mr. Zhao does
take over-the-counter Tylenol.  Dr. Koo recommended against the use of opioids,
muscle relaxants and the long-term use of non-steroidal anti-inflammatory
medications.  Mr. Zhao expressed to Dr. Nguyen his desire to stop taking
prescription medication.  I consider it likely that Mr. Zhao will continue to
manage his symptoms with the use of non-prescription painkillers like Tylenol
and Advil.  Mr. Corcoran described the cost as “negligible”.  There may be
occasions when Mr. Zhao experiences a flare-up of back pain symptoms or
headache sufficiently severe that he will seek a prescription medication.  I
award $1,200 for the cost of medications.

[115]     Mr. Zhao
has not been having physiotherapy treatment since the spring of 2012.  I accept
the opinion of Dr. Craig that there are no specific therapeutic measures that
would be helpful at this time, including passive treatment through physiotherapy. 
Mr. Zhao did not testify that his condition worsened after he discontinued
physiotherapy, although the fact he was not working may also have accounted for
that.  I am not persuaded that ongoing physiotherapy is required or that it
would be therapeutic, either in the sense of improving Mr. Zhao’s condition or
alleviating his symptoms.

[116]     I am of
the view, however, that Mr. Zhao may experience flare-ups or exacerbations of
neck or lower back pain in future that might be addressed by time-limited physiotherapy
or massage treatment.  I award $3,000 for this contingency.

[117]     Mr.
Corcoran has recommended an assessment by an occupational therapist.  While I
am not persuaded that it is necessary at this time, it may be required at some
future date.  If Mr. Zhao moved to a new workplace, for example, where his
employer did not provide ergonomic assessment services, a review of Mr. Zhao’s work
station by an occupational therapist could be helpful.  I award $1,500 for the
cost of the assessment and an additional $1,000 for the purchase of ergonomic
equipment.

[118]     The
evidence does not establish that it is likely that Mr. Zhao will need to hire
housekeepers or purchase assistance with house or yard maintenance.  Mr. Zhao
testified that he planned to ask Ms. Huang to marry him and there is no reason
to believe their relationship will fail.  Mr. Zhao rented an apartment before
he began living with Ms. Huang and her daughter and they continue to live in an
apartment, so Mr. Zhao does not have any yard work or household maintenance
tasks to perform.  Mr. Zhao told Mr. Corcoran that Ms. Huang does not work
outside the home and that she did most of the housework before the accident and
has continued to do the same following the accident.

[119]     Several
specialists recommended that Mr. Zhao engage in an active exercise program to
improve his overall fitness and tolerance.  Mr. Corcoran provided a cost of
$357 for an annual community centre flex-pass.  There was also a recommendation
by Mr. Young that Mr. Zhao have short-term assistance from a personal trainer
to help motivate him to engage in active exercise.  I award the sum of $3,000
for these services.

[120]     I award $9,700
for the cost of future care.

LOSS OF HOUSEKEEPING CAPACITY

[121]     In his
written closing submissions plaintiff’s counsel did not address this as a
separate head of damages.  I am not persuaded that Mr. Zhao’s capacity to
perform household tasks has been lost or impaired.  As noted earlier, Mr. Zhao
told Mr. Corcoran that before the accident – even though he and Ms. Huang
were only dating at that time, she did the majority of household tasks.  He
said she continued to do so after the accident.  While Mr. Corcoran’s
functional capacity evaluation did reveal some physical limitations, it does
not, in my opinion, prove that Mr. Zhao is incapable of performing any routine
housework.

NON-PECUNIARY DAMAGES

[122]     The
plaintiff is seeking an award of $100,000 for non-pecuniary losses.  The
defendant submits an award of $30,000 to $50,000 is warranted.  Counsel
provided the court with the following authorities on the issue of general
damages:

Lopez v. VW Credit Canada Inc., 2008 BCSC 320

Mar v. Young, 2009 BCSC 1251

Abdalle v. British
Columbia (Public Safety & Solicitor General),

2012 BCSC 128

Warren v. Morgan, 2013 BCSC 708

Harris v. Xu, 2013 BCSC 1257

Gosselin v. Neal, 2010 CarswellBC 827 (S.C.)

Mohan v. Khan, 2012 CarswellBC 803 (S.C.)

Poirier v. Aubrey, 2010 CarswellBC 1308 (C.A.)

Love v. Pai, 2003 CarswellBC 1438 (S.C.)

Tabet v. Hatis, 2013 CarswellBC 1929 (S.C.)

[123]     Of the
cases submitted by counsel for the defendant, I found the facts in Abdalle,
and in Warren to be sufficiently different that those decisions are of
little assistance.  Some of the plaintiff’s authorities − Tabet, for example, involved cases
in which the court concluded that the plaintiff had suffered a brain injury. 
The plaintiff in Mohan was found to have developed a major depressive
disorder.

[124]     In this
case, Mr. Zhao was unable to work for a short period of time and for a period
of a few months the symptoms from his injuries precluded him from return to
full-time employment.  Although his shoulder and mid-back symptoms have largely
resolved; his neck and lower back symptoms have improved; and his headaches are
less frequent and less severe, Mr. Zhao continues to have episodes of neck and
back pain and occasional headaches that are sometimes severe.  He has been able
to manage his residual symptoms with the use of over-the-counter medications in
recent months.  He has had disturbed sleep, and his symptoms, in particular his
lower back symptoms, have made sexual intimacy with his partner less enjoyable
and more infrequent and that has been a concern for him and for Ms. Huang.

[125]     I consider
it likely that Mr. Zhao will continue to have some discomfort in his neck and
lower back, and occasional headaches, for the foreseeable future, although I
accept the medical evidence that Mr. Zhao will likely experience more improvement,
particularly if he follows the recommendations to become more physically active
and fit.

[126]     Mr. Zhao
has not returned to most of the recreational pursuits and activities he enjoyed
before he was injured.  He does not ski or take strenuous hikes; he found
swinging a golf club to be uncomfortable; he has not resumed fishing or playing
badminton.  Dr. Christian’s opinion, which I accept, is that Mr. Zhao will be
able to resume some or all of these activities if he improves his physical
fitness, but Mr. Zhao has nevertheless been unable to enjoy these activities in
the several years that have passed since the accident.

[127]     Although
there is no convincing evidence that Mr. Zhao has experienced major depression,
the combination of financial strain during his period of unemployment after
being laid off by Accenture; and the discomfort and limitations caused by his
injuries did lead Mr. Zhao to seek counselling in the fall of 2012 and some of
the specialists he consulted recommended that he have psychological assessment
and/or treatment.  I am satisfied that Mr. Zhao did suffer from depressed mood
at times, including the fall of 2012.  Ms. Huang found Mr. Zhao’s mood to be
different after the accident and she testified that he was far less active and
motivated to engage in recreational activities and more disposed to remain at
home and watch TV.

[128]     Mr. Zhao
has experienced increased neck and back symptoms, and more headaches, during
periods of time when he has worked longer hours.  He deserves credit for having
persisted with his work, including working periods of overtime when necessary,
despite his symptoms.

[129]     In
general, Mr. Zhao has led a less enjoyable life than he otherwise would have if
the accident had not happened, and his life will continue to be negatively impacted
by the symptoms caused by his injuries for the foreseeable future.

[130]     I am not
persuaded that an award as high as $100,000 is warranted.  Having considered
all of the factors, I award the sum of $70, 000 for non-pecuniary damages.

SUMMARY OF DAMAGES

[131]    
I am not aware of any reason why the plaintiff should not have his
costs, to be assessed on Scale B.  If there are factors that should be brought
to the Court’s attention, such as offers of settlement, counsel may either make
submissions in writing about costs, or arrange to appear for an oral hearing. 
Otherwise, the order shall be that the plaintiff has his costs, to be assessed
on Scale B, plus disbursements.

“W.G.
Baker J.”