IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150331

Docket: M115234

Registry:
Vancouver

Between:

Li Fei Liu, also
known as, Li Fei Lin

Plaintiff

And

Sarabjit Kaur
Bains and Kulwant Singh Bains

Defendants

– and –

Docket: M115235

Registry:
Vancouver

Between:

Li Fei Liu, also
known as, Li Fei Lin

Plaintiff

And

Douglas A. Grant
and Lydia Grant

Defendants

– and –

Docket: M135572

Registry:
Vancouver

Between:

Li Fei Liu, also
known as, Li Fei Lin

Plaintiff

And

Kimball Lee

Defendant

Before:
The Honourable Madam Justice Gray

Reasons for Judgment

INTRODUCTION

[1]           
Ms. Liu was involved in three car accidents. The “First Accident” was on
November 6, 2009, about five years before the start of the trial. The “Second
Accident” was about four months later, on March 10, 2010. The “Third Accident”
was about two and a half years later, on October 5, 2012.

[2]           
At the time of the First Accident, Ms. Liu was working in a commercial
laundry as a general worker. She speaks virtually no English and testified with
the assistance of interpretation from Cantonese. She only went as far as grade five
in elementary school in China. She has worked only a few days since the First
Accident. Ms. Liu sued each of the three other drivers and the vehicle owners
in separate lawsuits, claiming damages. The three lawsuits proceeded to an
eight-day trial heard at the same time.

[3]           
The defence has admitted liability for the first two accidents, but not
for the third accident. The parties agree that Ms. Liu has developed a chronic
pain condition. However, the parties disagree about the extent of Ms. Liu’s
symptoms and about whether she is likely to be able to return to work. The
defence position is that Ms. Liu’s reports of her symptoms are unreliable and
that she should be able to re-enter the workforce part-time in six months and
full-time in two years, after taking an exercise program. The defence also
argues that Ms. Liu failed to mitigate by not pursuing treatment and failing to
pursue options for returning to work.

[4]           
Counsel cooperated in several ways which made the trial shorter, for the
benefit of all parties. For example, they entered into agreed statements of
facts. I am grateful for this level of cooperation between counsel and for the
clear presentation of the case by both of them.

ISSUES

[5]           
The issues are as follows:

a)    Is Mr. Lee
responsible for some or all of Ms. Liu’s damages arising from the Third
Accident?

b)    What is the
extent of Ms. Liu’s ongoing symptoms?

c)    Is Ms. Liu
likely to return to work, and if so, when?

d)    Did Ms. Liu fail
to mitigate her damages by failing to pursue treatment and failing to pursue
options for returning to work?

e)    What is Ms. Liu
entitled to recover for her damages?

FACTS

[6]           
I will first address the issue of credibility, reliability, and the
extent of Ms. Liu’s symptoms. After setting out the facts, I will begin
the analysis of the other main issues. I will complete the analysis by
addressing each claim for damages.

a)   
Credibility and Reliability

[7]           
The case of Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), is
often cited as a reminder of the approach the court must take in assessing
injuries which depend on subjective reports of pain. At 397-399 of the reasons
for judgment, Chief Justice McEachern wrote:

The assessment of damages in a moderate or moderately severe
whiplash injury is always difficult because plaintiffs, as in this case, are
usually genuine, decent people who honestly try to be as objective and as
factual as they can. Unfortunately, every injured person has a different
understanding of his own complaints and injuries, and it falls to judges to
translate injuries to damages.

…

Perhaps no injury has been the subject of so much judicial
consideration as the whiplash. Human experience tells us that these injuries normally
resolve themselves within six months to a year or so. Yet every physician knows
some patients whose complaint continues for years, and some apparently never
recover. For this reason, it is necessary for a court to exercise caution and
to examine all the evidence carefully so as to arrive at fair and reasonable
compensation. Previously decided cases are some help (but not much, because
obviously every case is different).

…

In Butler v. Blaylock, decided 7th October 1981,
Vancouver No. B781505 (unreported), I referred to counsel’s argument that a
defendant is often at the mercy of a plaintiff in actions for damages for
personal injuries because complaints of pain cannot easily be disproved. I then
said:

I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer. But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence – which could be just his own evidence if the surrounding
circumstances are consistent – that his complaints of pain are true reflections
of a continuing injury.

[8]           
The defence argued that Ms. Liu’s description of her injuries was odd
and inconsistent, and contradicted the evidence of other witnesses and of
contemporaneous written evidence.

[9]           
Ms. Liu presented as a very unsophisticated and frightened individual
who had difficulty expressing herself even with the assistance of a Cantonese
interpreter.

[10]       
At some points, Ms. Liu testified that she had symptoms 24 hours a day,
every day, since the First Accident. She described the pain as feeling like
screws tightening into the appropriate body part. At other points, she
testified that it was correct to describe certain symptoms as intermittent and
dull, with periods of hours where there was no pain.

[11]       
The defence argued that Ms. Liu wrongly denied that she had attended
Dr. Sylvia Wong for two visits related to dizziness, vertigo or insomnia
in 2008. The defence did not call Dr. Wong, and simply relied on the billing code
related to an apparent doctor’s visit. In the absence of evidence from Dr.
Wong, I am not satisfied that the coding correctly set out the purpose of the
visits.

[12]       
The defence argued that Ms. Liu’s reporting of her sitting tolerance was
inconsistent. The defence relied on Ms. Liu’s report to Mr. McNeil on June 24,
2014, that she estimated she could sit for 45 to 60 minutes; the fact that on
the day she and Mr. Lee were examined for discovery, June 25, 2014, she
demonstrated sitting for up to 86 minutes before one break and around one hour
before two other breaks; and the fact that on July 16, 2014, Ms. Liu told Dr.
Richardson, the orthopedic surgeon who testified for the defence, that she
could sit for ten minutes.

[13]       
Ms. Liu testified that on June 25, 2014, she was uncomfortable, but did
not know that she was permitted to move about or request an adjournment during
the examination for discovery. In light of Ms. Liu’s degree of sophistication,
this is a plausible explanation.

[14]       
Ms. Liu’s children testified at trial. Their evidence was consistent
with Ms. Liu’s evidence, and in particular about the fact that Ms. Liu did
virtually all the household tasks prior to the First Accident, and stopped
doing them afterwards.

[15]       
Both parties called the evidence of former co-workers. One former
co-worker, Ms. Li, testified that Ms. Liu had complained about the laundry
work in the past, but Ms. Li could not recall when Ms. Liu made such
complaints. Ms. Li may have been recalling Ms. Liu’s complaints in her two days
at work following the First Accident or the two days following the Second
Accident.

[16]       
Another former co-worker, Ms. Lin, testified that Ms. Liu was always a
hard-working person who could work at different stations and never said “no”.

[17]       
The evidence of the human resources manager, Ms. Wu, was that she was
not aware of any disciplinary letters in Ms. Liu’s file.

[18]       
Overall, Ms. Liu was not a reliable historian at trial about changes in
the severity of her pain. She appeared to be frightened, and to simply repeat
that she felt pain 24 hours a day and to describe the pain.

[19]       
Ms. Liu’s reports of pain to Mr. McNeil were the most reliable. They
showed changed during and after testing.

[20]       
Upon consideration of all the evidence, and in particular the dramatic
reduction in Ms. Liu’s activities, I accept that since the First Accident, Ms.
Liu has had some pain in some part of her body constantly, while the severity
and location of her pain has varied. Overall, her pain has been significant and
has had a significant impact on her life. As set out below, she is no longer
able to work, to do the many household chores she did prior to the First Accident,
nor to do the cooking and socializing she enjoyed prior to the First Accident.

b)   
Before the First Accident (on November 6, 2009)

[21]       
Ms. Liu was born in China in 1962. She grew up in a poor family. When
she was seven or eight, she started knitting fishing nets after school. She
quit school at the age of 12, after completing a grade five education. She has not
had any further education and speaks almost no English.

[22]       
At the age of 12, Ms. Liu began working in a factory plucking feathers
from chickens and ducks.

[23]       
At the age of 17, Ms. Liu began working in construction, picking and
shovelling cement.

[24]       
Ms. Liu married her husband in 1983 when she was 21 years old. She and
her husband have four children together: Cindy, Mary, Jason, and Michelle. All four
children were born in China in the period 1984 through 1989.

[25]       
Ms. Liu’s husband entered Canada as a refugee.

[26]       
Ms. Liu and the four children came to Canada in August 1993, joining Mr.
Liu in Vancouver.

[27]       
Ms. Liu did not work for the first year or so that she was in Canada.
Mr. Liu works as a chef in a restaurant.

[28]       
Around 1994, Ms. Liu began working from her home as a babysitter for
other parents.

[29]       
In 1995, Ms. Liu began working as a general duty worker in a garment
factory.

[30]       
Ms. Liu and her husband purchased their family home on East 18^th
Avenue in 1997. For a couple of years, Ms. Liu held two jobs and worked about 16
hours a day. She did so in order to pay the mortgage on the family home, to pay
expenses for the children, and to send money to her mother and mother-in-law in
China.

[31]       
Ms. Liu started working for G & K Services (“G & K”) in August
2004.

[32]       
Ms. Liu’s earnings from G & K in 2008 were $26,039.83. The parties
agreed that she worked 122.50 hours of overtime in 2008, being an average of
2.36 hours per week, and an average of 0.47 hours per day.

[33]       
The family home is about 2500 square feet in size, with six bedrooms and
four full bathrooms. It has a grassy front yard and a concrete back yard with a
small side vegetable garden. Immediately before the First Accident, Ms. Liu
lived there with her husband and her three younger children, Mary, Jason, and
Michelle. Her daughter Cindy lived in Richmond with her then boyfriend.

[34]       
Before the First Accident, Ms. Liu did virtually all of the household
tasks for the entire family living at the house. She shopped for groceries five
or six days a week. She cooked breakfast and dinner for the whole family on a
daily basis and often prepared lunches as well. Ms. Liu usually spent about two
hours making dinner. She hand-washed dishes when she got home from work and
again after dinner, taking about 30 minutes to complete the dish washing. She
also cleaned the kitchen nightly, cleaning the stove top and floor. She took
the garbage out nightly. She cleaned the bathrooms regularly.

[35]       
Ms. Liu wanted to care for her family. She wanted her children to get a
good education and to obtain better jobs than she had been forced to take. She
wanted her children to focus on studying and working, and so she did all the
household tasks.

[36]       
Ms. Liu also enjoyed particular cooking projects. Before the First
Accident, she made Chinese steamed buns weekly, which took her two to three
hours. She made sticky rice wraps about monthly, which took her about five
hours. She also made cakes and Chinese penne.

[37]       
Ms. Liu also did the laundry daily. She gathered soiled laundry from the
main upstairs bathroom and took it to the washing machine in the garage. She
used the dryer when it was cold and hung the laundry to dry in the summer
period.

[38]       
Ms. Liu vacuumed the home every three days.

[39]       
In summers, Mr. Liu cleaned the back yard weekly, and mowed the lawn
with her son’s help.

[40]       
Before the First Accident, Ms. Liu played mahjong with her friends once
or twice a week. A typical game took four or five hours. She also went for dim
sum meals with friends from time to time. Ms. Liu also walked with her husband in
the summer time, for about an hour at a time, two to three times a week.

[41]       
Ms. Liu was employed at G & K as a full-time laundry worker at the
time of the First Accident. She worked an eight hour shift on Sundays through
Thursdays. She testified that she liked her job at the laundry and planned to
work to retirement at the age of 65.

[42]       
G & K was an industrial laundry with about 300 employees. Its
customers included hotels, hospitals, and restaurants. It laundered items such
as linens, towels, blankets, construction overalls, and uniforms. It also
rented uniforms.

[43]       
Ms. Liu testified that she did several functions as a laundry worker.
She often worked at a towel station, ironing and bundling large numbers of towels
and stacking them into a truck. She also used a machine to iron bed linens,
which she folded and hauled to a truck. She sometimes hung heavy construction
overalls to dry. She was required to use continual physical effort, such as
stationary standing, leaning forward and reaching, and bending.

[44]       
G & K expected to continue to employ Ms. Liu so long as she was
healthy.

[45]       
Ms. Liu routinely drove co-workers to work. They each paid her $2 each
way for the ride. Ms. Liu used to stop for groceries on the way home.

[46]       
Before the First Accident, Ms. Liu had a good relationship with her husband.
She was happy, motivated, and active.

c)   
The First Accident (on November 6, 2009)

[47]       
At the time of the First Accident, Ms. Liu was employed by G & K.
She regularly worked 40 hours per week, earning $11.15 per hour and 6% holiday
pay. Her regular overtime wage was $16.73 per hour, being 1.5 times her regular
wage. G & K paid her MSP premiums as a taxable benefit. Ms. Liu and her
husband had paid off the mortgage on their home a few years before the First
Accident. Their daughter Cindy had a child who was about six months old.

[48]       
Ms. Liu was driving a 2002 Toyota Corolla car northbound on the Knight
St. bridge in Vancouver, B.C. She brought the Toyota to a complete stop. The
Toyota was struck from the rear by the Kia Rio driven by Ms. Bains. As stated,
Ms. Bains has admitted liability for the First Accident.

d)   
Between the First Accident (on November 6, 2009) and the Second Accident
(on March 10, 2010)

[49]       
After the First Accident, Ms. Liu complained of pain in her neck, low
back, legs, and shoulders; and of headaches, dizziness, disrupted sleep,
fatigue, and fear of driving.

[50]       
Mr. Liu went to a walk-in medical clinic after the First Accident. Her
son drove and helped her get in and out of the car.

[51]       
Ms. Liu had a scheduled day off on November 7, 2009, the day following
the First Accident.

[52]       
Ms. Liu returned to work on November 8 and 9, 2009. She testified that
she did so because she was afraid of losing her job, and because she had
committed to drive co-workers to the workplace.

[53]       
Ms. Liu testified that she was in great pain on the first day of work,
and on the second day she realized she could not bear the pain. She did not
return to work for about one and one-half years.

[54]       
Ms. Liu first saw Dr. Chan, who became her family doctor, on November 9,
2009. He recommended heat, rest and over-the counter medication. Later, he
prescribed naproxen (an anti-inflammatory used to treat pain), an anti-inflammatory
ointment, and physiotherapy.

[55]       
Ms. Liu was in China from November 14, 2009 to December 11, 2009, being
three work weeks.

[56]       
The Toyota was repaired at a cost of about $2,800. Ms. Bains’ Rio was
repaired at a cost of about $6,100.

[57]       
Ms. Liu had 12 physiotherapy treatments in the period of December 18,
2009 to January 13, 2010.

[58]       
Ms. Liu’s earnings from G & K in 2009 were $23,615. That year, G
& K paid Ms. Liu $1,296 representing payment of MSP premiums for her family
(of three or more individuals). That is equal to $108 per month, and $24.92 per
week.

[59]       
Following the First Accident, Ms. Liu stopped doing the cooking and
cleaning in the family home. Her sister-in-law helped for a period.

[60]       
Ms. Liu stopped making Chinese buns because of the pain of standing and
kneading the dough. She stopped making sticky rice because of pain in her low
back and neck.

[61]       
Ms. Liu stopped playing mahjong with her friends because of the pain of
sitting for long periods and because of neck pain when reaching for tiles and
shuffling.

[62]       
Ms. Liu testified that her relationship with her husband soured after
the First Accident. She has difficulty with intimate relations.

[63]       
Ms. Liu also testified that she had difficulty holding her grandchild
because of low back and neck pain.

[64]       
Ms. Liu’s friend, Ms. Tang, has been giving Ms. Liu free Chinese
medicine manipulations about twice a week since just before the Second Accident.
She estimates that the cost of such treatment in a clinic would likely be $68
per treatment. Ms. Tang lent Ms. Liu a massaging machine which Ms. Liu uses at
home most days.

[65]       
Ms. Liu testified that she does stretching and exercises from a sheet
she received from the physiotherapist, spending about 30 minutes a day on these
exercises. She testified that she did tai chi movements on a daily basis for 15
to 20 minutes. She testified that she also walked with her husband periodically
for exercise.

[66]       
Ms. Liu’s daughter Mary testified that her mother does exercise and
stretching as a routine. Ms. Liu’s daughter Cindy testified that she saw Ms.
Liu do exercises which she thought were tai chi.

[67]       
G & K was sold to K-Bro Linen Services (“K-Bro”) on January 31,
2010. Essentially, K-Bro carried on operations with the same employees and on
the same basis as G & K, except that K-Bro does not rent uniforms and has
about 280 employees, about 20 fewer than G & K. If Ms. Liu had continued
working at K-Bro after that date, she would have had the same hours and would
have earned the same regular wage, overtime wage, and holiday pay that she had
been earning at G & K.

e)   
The Second Accident (on March 10, 2010)

[68]       
At around 9 a.m. on March 10, 2010, Ms. Liu was driving her Toyota
eastbound in the alley behind her home on East 18^th Avenue in
Vancouver, B.C., near Knight Street. Ms. Liu was driving along the curve in the
alley when her Toyota was struck by a Ford Taurus driven by Mr. Grant. The left
side of the Taurus struck the left side of Ms. Liu’s Toyota. Mr. Grant has
admitted liability for the Second Accident.

f)    
Between the Second Accident (on March 10, 2010) and the Third Accident
(on October 5, 2012)

[69]       
Ms. Liu’s Toyota was repaired at a cost of about $2,750. Mr. Grant’s
Taurus was repaired at a cost of about $1,600.

[70]       
Ms. Liu saw Dr. Chan on March 31, 2010, but his first record that she
told him about the Second Accident was not until April 8, 2010. Dr. Chan
suggested that she continue using heat, medications, rubs, and exercise.

[71]       
Around May or June 2010, being six or seven months after the First
Accident, Cindy Liu moved back into her parents’ home with her child so that
she could assist her mother. Cindy Liu was 25 years old at the time. She took
over daily cooking of three meals a day for the family, and the upstairs
cleaning, including bathrooms. Mary Liu looked after the downstairs cleaning.
Ms. Liu felt badly that her daughters had to do these tasks she used to do
herself.

[72]       
K-Bro paid Ms. Liu’s MSP premiums as a taxable benefit through August
2010. In 2010, the MSP premiums for a family the size of Ms. Liu’s were $114
per month, being $1,368 per year.

[73]       
In October 2010, Ms. Liu began a rehabilitation program with Karp Rehabilitation
which continued until August 2011.

[74]       
Ms. Liu’s earnings in 2010 were $2,236. She received holiday pay from G
& K in the amount of $1,339.10, and $99.68 for her January MSP premiums.
She received $798 from K-Bro, consisting of seven months of MSP payments.

[75]       
If Ms. Liu had not been on sick leave, she would have received a $0.20
wage increase on January 1, 2011.

[76]       
Ms. Liu attempted a graduated return to work at K-Bro in March 2011. She
worked for four hours on March 15, 2011 and for four hours on March 17, 2011.
She earned $11.15 per hour for those eight hours of work, being $89.20. She did
not work at K-Bro after that.

[77]       
Ms. Wu, human resources manager for K-Bro, testified that Ms. Liu would
not be permitted to return to work if she was unable to maintain a productive
work pace and demonstrate the full capacity for light level work.

[78]       
Ms. Wu testified that at some point after Ms. Liu’s failed attempt to
return to work gradually, Ms. Liu called her and asked about doing light
duties. Ms. Wu testified that she told Ms. Liu that for K-Bro to provide a job
to Ms. Liu, she had to prove she was 100% recovered from her injuries. Ms. Wu
testified that she told Ms. Liu that she would speak to two managers and see
what they could do.

[79]       
Ms. Wu testified that about one and one half months later, the managers
told her that, so long as ICBC would be responsible if Ms. Liu were injured
further, K-Bro could offer Ms. Liu some light duties.

[80]       
Ms. Wu testified that she tried to contact Ms. Liu twice by telephone
but did not reach her. Ms. Wu could not remember whether she left a voice
message asking Ms. Liu to call her back.

[81]       
By August 2011, Ms. Liu had attended 54 treatment sessions at Karp
Rehabilitation.

[82]       
In 2011, the MSP premiums for a family the size of Ms. Liu’s were $121
per month, being $1,452 per year.

[83]       
Dr. Grypma, an orthopedic surgeon, conducted an independent medical
examination of Ms. Liu on December 21, 2011. While neither side sought to
introduce his opinion, the parties agreed on Dr. Grypma’s observations of Ms.
Liu, and on what she told him with the aid of an interpreter.

[84]       
Ms. Liu reported intermittent dull achy neck pain at a level of five out
of ten, aggravated by working out and long household chores, and relieved by
lying down. She reported occasional neck pain at night. She reported that she
sometimes had no low back pain for hours. She reported that her low back pain
was dull and achy at a level of six out of ten. She reported that it was
aggravated by sitting for over an hour, and relieved by sitting in bed. She
reported night lower back pain about four times a week. She reported that she
had numbness in the tips of her toes in her right foot once in a while. She
reported that she had not taken an analgesic since three or four days prior to
the appointment.

[85]       
The parties agreed that Dr. Grypma “alleges” certain things about the
plaintiff’s conduct during the examination, but the parties also agreed that
Dr. Grypma was not required to attend trial.

[86]       
During examination, Dr. Grypma observed that Ms. Liu had slight
increased muscle tone and tenderness at the left upper medial trapezius. Ms.
Liu reported pain in the neck on rotation and flexion, tenderness at the C7-T1
vertebra centrally, and tenderness at the L5-S1 vertebra.

[87]       
If Ms. Liu had not been on sick leave, she would have received a further
$0.20 wage increase on January 1, 2012.

[88]       
In 2012, the MSP premiums for a family the size of Ms. Liu’s were $128
per month, being $1,536 per year.

[89]       
Ms. Liu earned $3,865 (gross) for babysitting her grandchildren from
April 2012 to August 2012. She stopped because of headaches and fatigue.

[90]       
By October 2012, Cindy Liu had two children, one of whom was about three
and a half years old and the other of whom was about two years old. Cindy Liu
was expecting her third child.

g)   
The Third Accident (on October 5, 2012)

[91]       
Around 9 or 10 a.m. on October 5, 2012, Ms. Liu was travelling
southbound on the Knight Street bridge between Vancouver and Richmond, B.C. The
external driver’s mirror on Mr. Lee’s 1990 Toyota Corolla made contact with the
passenger external mirror on Ms. Liu’s Toyota. Mr. Lee denies liability for the
Third Accident.

[92]       
As stated, Mr. Lee and Ms. Liu gave very different accounts of how the
Third Accident occurred. Mr. Lee provided photographs from the accident scene
which were not produced until the trial period and which had not been explored
in Examinations for Discovery. The photographs show that the accident site was
on the southbound side of the bridge, at a point where there are three lanes,
one of which is the continuation of the Mitchell Island entrance ramp. The
photographs also show that the lanes themselves are wide. The photographs also
show that Mr. Lee’s Corolla did not have a driver side external mirror.

[93]       
Ms. Liu testified that she was in the middle of three lanes when Mr.
Lee’s vehicle struck hers. She testified that Mr. Lee’s vehicle was coming from
her right and attempted to “pinch” ahead of her, colliding with her vehicle and
ending up ahead of her vehicle.

[94]       
Mr. Lee testified that he was in the middle lane when a vehicle which
was ahead of him and to his right (which I will simply refer to as the “Unknown
Vehicle”) starting cutting into his lane. Mr. Lee testified that he swerved to
avoid the Unknown Vehicle. He testified that he did not see Ms. Liu’s vehicle
prior to the collision and he did not apply his brakes. He assumed that Ms. Liu
must have been moving into his lane. He testified that he was travelling about
60 km/hr at the time of the accident.

h)   
Between the Third Accident (on October 5, 2012) and Trial

[95]       
Ms. Liu’s Toyota was repaired at a cost of about $2,700, and the repair
estimate refers to replacing the outer right mirror. Mr. Lee’s 1990 Toyota was
repaired at a cost of about $350, and the repair estimate refers to replacing
the outer left mirror.

[96]       
Dr. Chan prescribed an increase in the strength of the prescription
ointment, physiotherapy, and exercise and rehabilitation at Karp Rehabilitation
Centre.

[97]       
If Ms. Liu had not been on sick leave, she would have received a $0.25
wage increase on January 1, 2013.

[98]       
In 2013, the MSP premiums for a family the size of Ms. Liu’s were $133
per month, being $1,596 per year.

[99]       
On January 5, 2013, Ms. Liu reported to Dr. Chan that she had pain in
the ribs from a fall ten days before.

[100]     Ms. Liu
had 12 physiotherapy treatments in the period Jun 19, 2013 through August 7,
2013.

[101]     If Ms. Liu
had not been on sick leave, she would have received a further $0.25 wage
increase on January 1, 2014.

[102]     In 2014,
the MSP premiums for a family the size of Ms. Liu’s were $138.50 per month,
being $1,662 per year.

[103]     Ms. Liu
was assessed on June 24, 2014 by Mr. McNeil, the occupational therapist, who
prepared a function capacity evaluation (“FCE”) at the request of Ms. Liu’s
counsel.

[104]     Ms. Liu
and Mr. Lee were examined for discovery on June 25, 2014. The examinations
proceeded for 62 minutes, then a break, then 35 minutes, then a break, then 21
minutes, then a break, then 86 minutes, then a break, and then 63 minutes.

i)     
At the time of Trial

[105]     Ms. Liu is
about 150 cm tall, being about 4 feet 11 inches tall.

[106]     At the
time of trial, Cindy Liu’s children were about five and a half, four, and two years
old.

[107]     The trial
commenced on October 14, 2014. The parties agreed that, from September 2010 to
October 14, 2014, Ms. Liu’s loss of taxable benefits, as relates to unpaid MSP
premiums, is in the amount of $6,350.36. They further agreed as follows
regarding the period from November 6, 2009 to October 14, 2014:

a)    Ms. Liu’s gross
loss of hourly pay from G & K and K-Bro is in the amount of $116,847.20;

b)     Ms. Liu’s
approximate gross loss of overtime pay from G & K and K-Bro is in the
amount of $10,335.02; and

c)    Ms. Liu’s loss
of holiday pay from G & K and K-Bro is in the amount of $7,010.83.

[108]     Ms. Liu
testified that she still periodically walks with her husband in the park, but
walks more slowly and takes frequent breaks to rest. She testified that she
walks with pain in her neck and lower back.

[109]     Ms. Liu
testified that she has been reluctant to drive, and asks her children to give
her rides. She does minimal gardening work, having given up raking and
shovelling. She is able to help with watering and picking beans.

j)     
Expert Evidence

[110]     Ms. Liu
relied on the evidence of Dr. Giantomaso, physiatrist; Dr. Chan, general
medical practitioner; Mr. McNeill, occupational therapist; Mr. Nordin,
vocational rehabilitation consultant; and Mr. Peever, economist. The defence
relied on the expert evidence of Dr. Richardson, orthopedic surgeon, and Mr.
Hildebrand, economist.

a.   
Dr. Chan, general medical practitioner

[111]     Dr. Chan
is Ms. Liu’s family doctor and testified at her request. He diagnosed Ms. Liu
with neck and shoulder and back strain due to the First Accident. He diagnosed
her with neck and left shoulder strain after the Second Accident. He diagnosed
her with neck and back strain after the Third Accident.

[112]     Dr. Chan
thought that Ms. Liu could perform light duties a few weeks after the First
Accident, if such work had been available. However, he did not have the benefit
of an FCE.

[113]     In Dr.
Chan’s opinion, Ms. Liu’s recovery appears to have plateaued, and she may have
some long-term, chronic pain for an indefinite period. He wrote that it may
require future conservative treatment of “thermal, medications and rubs
massage, physiotherapy, exercise, TENS, etc”.

b.   
Dr. Giantomaso, physical medicine and rehabilitation specialist
(“physiatrist”)

[114]     Dr.
Giantomaso saw Ms. Liu for the purpose of a report to the court and testified
at her request. He diagnosed the following as arising from the First Accident:

a)    posttraumatic
cervical sprain-strain injury. Chronic and incompletely resolved prior to the
Second Accident.

b)    Lumbar
sprain-strain injury. Chronic and incompletely resolved prior to the Second
Accident.

[115]     Dr.
Giantomaso  diagnosed the following as arising from the Second Accident:

a)    exacerbation of
previously existing cervical sprain-strain injury. Ongoing and unresolved prior
to the Third Accident.

b)    exacerbation of
previously existing lumbar sprain-strain injury. Ongoing and unresolved prior
to the Third Accident.

c)    posttraumatic
thoracic sprain-strain injury. Chronic.

[116]     Dr.
Giantomaso diagnosed a chronic diffuse myofascial pain syndrome arising from
the Third Accident. His objective findings include localized tenderness,
hypertonicity, and painful end range of motion.

[117]     In Dr.
Giantomaso’s opinion, the prognosis after multiple motor vehicle collisions is
worse than after a single motor vehicle collision. In his opinion, Ms. Liu has
probably met maximal medical improvement and will most likely experience
chronic pain permanently in the future.

c.   
Mr. McNeil, occupational therapist

[118]     Mr. McNeil
conducted one day of functional capacity testing on Ms. Liu and testified at
her request. In his opinion, she had the physical capacity to perform activity
that requires sedentary to modified light level strength for short periods of
time. He found restrictions in her reaching, bending, stooping, looking down,
pushing, pulling, carrying, lifting, sitting, standing and walking.

[119]     Mr. McNeil
performed some testing to determine if Ms. Liu was honest in her performance.
He did not find any inappropriate illness behavior. Ms. Liu appeared to be
putting in good effort.

[120]     In Mr. McNeil’s
opinion, Ms. Liu did not demonstrate the capacity to be competitively
employable. In his opinion, she did not demonstrate the full capacity for light
level work, although she demonstrated the capacity to lift and carry in the
sedentary to light strength category. In his opinion, she would require
accommodations to work in a sedentary occupation and could not sustain a
competitively employable work pace. In his opinion, she did not even come close
to meeting the basic physical demands of her job.

[121]     In Mr.
McNeil’s opinion, Ms. Liu is unlikely to become stronger in a conditioning
program, but even if she does, it is not likely to lead to an increase in
function.

d.   
Mr. Nordin, vocational rehabilitation consultant.

[122]     Mr. Nordin
prepared a report for the court and testified at Ms. Liu’s request. He found
that her English language skills were virtually non-existent. Her education is
at the level of elementary school in China.

[123]     In Mr.
Nordin’s opinion, Ms. Liu is likely not competitively employable. In his
opinion, her primary barriers to returning to competitive employment are her
ongoing symptoms, compounded by her age, education, and limited English
language skills.

e.   
Dr. Richardson, orthopedic surgeon

[124]     Dr.
Richardson testified at the request of the defence. He saw Ms. Liu for the
purposes of giving an opinion for court.

[125]     Dr.
Richardson diagnosed Ms. Liu with the following:

a)    chronic
myofascial pain in the neck, trapezius and levator scapulae muscles, right side
more than left;

b)    history of
headaches; and

c)    low back pain, both
mechanical and myofascial, with decreased extension in the lumbar spine.

[126]     In Dr.
Richardson’s opinion, Ms. Liu developed chronic neck and low back pain before
the Third Accident. In his opinion, she further exacerbated those symptoms
during the Third Accident.

[127]     Dr.
Richardson suggested that Ms. Liu might be able to carry out sedentary to
light-type of work, at least on a part-time basis, but this would be better
addressed by a FCE.

[128]     Dr.
Richardson recommended that Ms. Liu participate in a gym program, yoga, Pilates,
an aquatic exercise program, or that she have access to a community centre.

ANALYSIS

[129]     I begin by
addressing the remaining specific issues, and then consider the award under the
different headings of damages.

a)   
Liability for the Third Accident

[130]     Ms. Liu
and Mr. Lee have fundamentally incompatible accounts of the Third Accident.
They both claim to have been in the middle lane when the other vehicle
illegally entered that lane. There were no witnesses to the accident to provide
evidence one way or another.

[131]     The
photographs of the scene and the vehicle after the accident were helpful. They
show a clear sunny morning. They show three lanes of traffic divided by dotted
lines, south of what appears to be the Mitchell Island entrance ramp. It
appears that prior to the accident site, there were only two southbound lanes,
which expanded to three lanes when the entrance ramp became a third lane. They
show both Ms. Liu’s Toyota and Mr. Lee’s Toyota in the middle lane. Mr. Lee’s
vehicle is stopped close to the middle of the lane, and the driver’s side external
mirror is not in place. Ms. Liu’s Toyota is stopped close to the east (driver’s
left) side of the middle lane, nearly touching the dotted line. The lanes are
wide. One photograph shows a car driving over the dotted line in an apparent
attempt to pass Ms. Liu’s Toyota without changing lanes, with the effect of
four lanes of traffic spread over the three marked lanes.

[132]     Mr. Lee
testified initially in English, and later with the assistance of an
interpreter. He did not appear to have a clear recollection of where he had
been prior to the accident. He testified that he kept forgetting what happened.

[133]     Mr. Lee
testified that the interpreter at his Examination for Discovery made mistakes
in interpreting his answers and that he could not always understand the
questions.

[134]     Even
trying to make an allowance for the difficulties of interpretation, Mr. Lee’s
evidence was not entirely clear. However, he was clear about the fact that he
was swerving prior to the accident.

[135]     Ms. Liu’s
account of the accident makes the most sense and is most consistent with the
photographs following the accident.

[136]     I conclude
that Ms. Liu was driving in the middle lane of three, which was shortly going
to be the right lane of two. I conclude that Mr. Lee was attempting to merge into
Ms. Liu’s lane ahead of her. Mr. Lee’s vehicle swerved into Ms. Liu’s lane and
struck her vehicle, causing the accident. Mr. Lee was negligent by driving into
her lane when it was not safe to do so.

[137]    
Section 151(a) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318,
is as follows:

151 A driver who is driving a vehicle on a laned
roadway

(a)  must not drive it from one lane to another when a
broken line only exists between the lanes, unless the driver has ascertained
that movement can be made with safety and will in no way affect the travel of
another vehicle,

[138]     Mr. Lee is
wholly responsible for Ms. Liu’s injuries in the Third Accident.

b)   
Likelihood and Timing of Ms. Liu Returning to Work

[139]     I accept
the opinions of Mr. McNeil and Mr. Nordin. Ms. Liu is not competitively
employable. She does not have the physical capacity to do anything other than
sedentary work, and she does not have the education or English language skills
for such work. Even if she is able to gain some strength through conditioning,
she is not likely to gain enough function that she could perform at a
competitively employable pace in any position.

[140]     Dr.
Giantomaso suggested that Ms. Liu might be able to perform part-time work which
is sedentary to light. However, he deferred to a FCE. In addition, there is no
evidence of sedentary to light part-time work available to someone with the
level of education and English language skills of Ms. Liu.

c)   
Whether Ms. Liu Failed to Mitigate

[141]     The
defence argues that Ms. Liu failed to mitigate by failing to exercise daily and
failing to pursue part-time work.

[142]    
The burden of proof on the issue of mitigation lies with the defence. As
stated by Madam Justice Rowles, writing for the majority, in Graham v.
Rogers, 2001 BCCA 432 at para. 35, leave to appeal ref’d [2002] SCCA No.
467, regarding the principle of mitigation in personal injury cases:

Mitigation goes to limit recovery
based on an unreasonable failure of the injured party to take reasonable steps
to limit his or her loss. A plaintiff in a personal injury action has a
positive duty to mitigate but if a defendant’s position is that a plaintiff
could reasonably have avoided some part of the loss, the defendant bears the onus
of proof on that issue.

[143]    
This principle has been applied to arguments that a plaintiff has not
pursued a course of recommended medical treatment. In Chiu v. Chiu, 2002
BCCA 618, Mr. Justice Low wrote as follows at para. 57:

…the defendant must prove two
things: (1) that the plaintiff acted unreasonably in eschewing the recommended
treatment, and (2) the extent, if any, to which the plaintiff’s damages would
have been reduced had he acted reasonably.

[144]    
The court is slow to determine that good faith decisions are
unreasonable. As set out in Paniccia Estate v. Toal, 2012 ABCA 397 at
para. 86:

…the court only lightly reviews
the decision of the person injured to try to mitigate his loss. Courts are
extremely slow to criticize good-faith decisions by victims of torts about both
whether to take steps in mitigation, or which steps, or how much expense or
risk to incur in doing so.

[145]     The
defence argued that Ms. Liu was offered the option of attempting a light duties
position and chose not to pursue this option. Ms. Liu was not offered such a
position. While Ms. Wu tried to contact Ms. Liu to offer such a position, Ms.
Wu did not reach Ms. Liu. It was reasonable for Ms. Liu not to continue to
pursue Ms. Wu, because Ms. Wu had told her that she had to prove she was 100%
recovered from her injuries before she could return to work. In addition, it is
unlikely Ms. Liu could have performed light duties adequately. Ms. Liu did not
fail to mitigate by failing to pursue her employer for light duties.

[146]     The
defence argued that Ms. Liu failed to maintain a prescribed exercise program. I
accept the evidence of Ms. Liu, and her daughters Cindy and Mary, that Ms. Liu
has continued an exercise program including tai chi. Ms. Liu frequently
reported to Dr. Chan that she was exercising. Dr. Giantomaso does not think she
reported exercise to him, but Ms. Liu thinks she did. That was most likely a
misunderstanding perhaps arising from translation issues.

[147]     In any
event, the evidence does not demonstrate that Ms. Liu’s symptoms would be reduced,
or that she would be capable of working, if she exercised more.

[148]     Ms. Liu
did not fail to mitigate her damages.

d)   
Assessment of Damages

i)      Non-pecuniary
Damages

[149]     Ms. Liu
claims non-pecuniary damages of $90,000 to $130,000, arguing that she suffers
from severe chronic pain.

[150]     Ms. Liu’s
counsel relied on these cases: Rajan v. Hudon, 2014 BCSC 1678 ($90,000);
McCarthy v. Davies, 2014 BCSC 1498 ($100,000); Morlan v. Barrett,
2010 BCSC 1767, varied on other grounds 2012 BCCA 66 ($125,000); Marois v.
Pelech, 2007 BCSC 1969, aff’d 2009 BCCA 286 ($130,000); Eccleston v.
Dresen, 2009 BCSC 332 ($120,000); and Prince-Wright v. Copeman, 2005
BCSC 1306 ($100,000 in 2005 dollars, converted to about $116,000 in 2013
dollars).

[151]     The
position of the defence is that an appropriate award for Ms. Liu’s injuries is
$60,000. However, the defence argued that it should be reduced from that amount
in respect of a failure to mitigate, and on the basis of liability for the
Third Accident. I have rejected the defence argument concerning such reductions.

[152]     The purpose of an award for non-pecuniary damages is to compensate
Ms. Liu for her pain, suffering, and loss of amenities of life.

[153]     Ms. Liu is entitled to an award to provide solace and to make her
life more endurable with the injuries that she lives with.

[154]    
Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46, leave to appeal ref’d [2006] SCCA
No. 100, is often cited regarding non-pecuniary damages and the principles
behind them and as follows:

[45] … I think it is instructive to
reiterate the underlying purpose of non-pecuniary damages. Much, of course, has
been said about this topic. However, given the not-infrequent inclination by
lawyers and judges to compare only injuries, the following passage from Lindal
v. Lindal, supra, at 637 is a helpful reminder:

Thus the amount of an award for
non-pecuniary damage should not depend alone upon the seriousness of the injury
but upon its ability to ameliorate the condition of the victim considering his
or her particular situation. It therefore will not follow that in
considering what part of the maximum should be awarded the gravity of the
injury alone will be determinative. An appreciation of the individual’s loss
is the key and the "need for solace will not necessarily correlate with
the seriousness of the injury" (Cooper-Stephenson and Saunders, Personal
Injury Damages in Canada (1981), at p. 373). In dealing with an award of
this nature it will be impossible to develop a "tariff". An award
will vary in each case "to meet the specific circumstances of the
individual case" (Thornton at p. 284 of S.C.R.).

[46] The inexhaustive list of common factors
cited in Boyd that influence an award of non-pecuniary
damages includes:

(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;

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).

[Emphasis in original.]

[155]     I would summarize the significant factors as follows:

a)    At
the time of trial, Ms. Liu was about 52 years old. She was about 47 years old
at the time of the First Accident, 48 at the time of the Second Accident, and
50 at the time of the Third Accident.

b)    In the First Accident, Ms. Liu suffered soft tissue injuries to her
neck and lower back. Those injuries were exacerbated in the Second Accident,
and in addition she suffered soft tissue injuries to her mid back. The injuries
were exacerbated in the Third Accident. She has developed a chronic pain
syndrome.

c)    Ms. Liu’s pain has been relatively continuous and severe, and it is
unlikely that her pain will resolve completely or resolve even to the point
that she will be able to work part-time.

d)    As a result of the accidents, Ms. Liu is completely disabled from
working and is significantly disabled from household work, including cooking.

e)    There was no medical evidence that Ms. Liu is suffering a
psychiatric illness such as depression. However, Ms. Liu has suffered from the
loss of her sense of well-being, the impairment of her relationships with her
husband and children, and the loss of the social connections from work and from
activities like playing mahjong and eating dim sum in restaurants.

f)     
Ms. Liu’s life has changed dramatically. Before
the accidents, she enjoyed her family life, looking after her family, working,
and socializing. She no longer enjoys those activities and can participate only
in a minor way.

[156]     No two cases are alike. I have considered the cases cited by both
counsel and Ms. Liu’s particular circumstances.

[157]     Ms. Liu is entitled to $90,000 for non-pecuniary damages.

ii)   
Past Loss of Earnings

[158]     On my
calculations, Ms. Liu’s claim for gross past wage loss is for about $149,000.
That claim consists of about $6,350 regarding the lost taxable benefit of MSP
premiums, $116,847.20 in gross loss of hourly pay, $10,335.02 in approximate
gross loss of overtime pay, $7,010.83 in lost holiday pay, and $12,331.72 in
lost non-wage benefits. That is a total of $152,874.77, less her babysitting
earnings of $3,865.

[159]     The
position of the defence is that Ms. Liu should receive $136,678.40 (and that
there should be reductions for liability for the Third Accident and for failure
to mitigate).

[160]     The evidence as a whole supports the conclusion that Ms. Liu’s
absences from work were caused by the accidents. As discussed above, there will
be no deduction for either failure to mitigate or for liability for the Third
Accident.

[161]     Mr. Chang
argued on behalf of Ms. Liu that Ms. Liu’s regular and overtime earnings should
be increased by 10% to reflect non-wage benefits. However, there was no
evidence about such benefits, except for the payment of MSP premiums. Ms. Liu’s
tax returns did not reflect other non-wage benefits. As a result, Ms. Liu is
entitled to an award reflecting about $6,350 regarding the lost taxable benefit
of MSP premiums, $116,847.20 in gross loss of hourly pay, $10,335.02 in
approximate gross loss of overtime pay, and $7,010.83 in lost holiday pay. That
is a total of $140,543.05, less her babysitting earnings of $3,865, for an
amount gross of tax of $136,678.05. I will round that up to $136,700.

[162]     Ms. Liu is entitled to an award for gross past wage loss of $136,700.
If counsel cannot agree on the amount net of tax, the calculation is referred
to the registrar for determination.

iii) 
Lost Earning Capacity

[163]     The
plaintiff claims $345,000 to $358,000 for future loss of earnings and earning
capacity. This is based on the assumption that Ms. Liu would likely have worked
until she was 65 years of age, earning either what she was earning or the
amount that an average worker in dry cleaning, laundry, and related occupations
would earn, increased by 10% to include non-wage benefits.

[164]     The
defence position is that the award should be $33,750 to $60,500 for Ms. Liu’s
lost future earning capacity.

[165]    
The law with respect to loss of earning capacity was summarized by
Mr. Justice MacKenzie in Stull v. Cunnningham, 2013 BCSC 1140, as
follows:

[131] In Wong v. Hemmings, 2012 BCSC 907,
at paras. 146-151, Fitch J. summarized the legal principles pertaining to this
head of damages:

[146] A claim for
loss of future earning capacity raises two key questions: 1) has the
plaintiff’s earning capacity been impaired by his or her injuries; and, if so
2) what compensation should be awarded for the resulting financial harm that
will accrue over time? The appropriate means of assessment will vary from case
to case: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Pallos
v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260
(C.A.); Pett v. Pett, 2009 BCCA 232.

[147] The
assessment of damages is a matter of judgment, not calculation: Rosvold v.
Dunlop, 2001 BCCA 1 at para. 18.

[148] Insofar as
possible, the plaintiff should be put in the position he or she would have been
in but for the injuries caused by the defendant’s negligence: Lines v. W
& D Logging Co. Ltd., 2009 BCCA 106 at para. 185. The essential task of
the Court is to compare the likely future of the plaintiff’s working life if
the accident had not happened with the plaintiff’s likely future working life
after the accident: Gregory v. Insurance Corp. of British Columbia, 2011
BCCA 144 at para. 32.

[149] There are
two possible approaches to assessing of loss of future earning capacity: the
“earnings approach” from Pallos; and the “capital asset approach” in Brown.
Both approaches are acceptable. Reliance on the capital asset approach will
be more useful where, as in this case, the loss in question is not easily
measureable: Perren v. Lalari, 2010 BCCA 140.

[150] The earnings
approach involves a form of math-oriented methodology such as: (i) postulating
a minimum annual income loss for the plaintiff’s remaining years of work,
multiplying the annual projected loss by the number of remaining years and
calculating a present value; or (ii) awarding the plaintiff’s entire annual
income for a year or two: Pallos; Gilbert v. Bottle, 2011 BCSC 1389 at
para. 233.

[151] The capital
asset approach involves considering factors such as: i) whether the plaintiff
has been rendered less capable overall of earning income from all types of
employment; ii) is less marketable or attractive as a potential employee; iii)
has lost the ability to take advantage of all job opportunities that might otherwise
have been open; and iv) is less valuable to herself as a person capable of
earning income in a competitive labour market: Brown; Gilbert at para.
233.

[132] In Andrews v. Grand & Toy
Alberta Ltd., [1978] 2 S.C.R. 229 at 251, the Court said:

We must now gaze
more deeply into the crystal ball. What sort of a career would the accident
victim have had? What were his prospects and potential prior to the accident?
It is not loss of earnings but, rather, loss of earning capacity for which
compensation must be made: The Queen v. Jennings, [1966] S.C.R. 532, supra.
A capital asset has been lost: what was its value?

[133] In Reilly v. Lynn, 2003 BCCA 49
at para. 101, the court stated:

The standard of
proof in relation to future events is simple probability, not the balance of
probabilities, and hypothetical events are to be given weight according to
their relative likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at
para. 27. A plaintiff is entitled to compensation for real and substantial
possibilities of loss, which are to be quantified by estimating the chance of
the loss occurring: Athey v. Leonati. supra, at para. 27, Steenblok
v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.).

[134] The court in Bhadlawala v. Baxter, 2012
BCSC 366, at para. 138, stated:

The assessment of loss of future earning
capacity is not a mathematical exercise, and must deal to some extent with the
unknowable. As Huddart J.A. put it in Rosvold v. Dunlop, 2001 BCCA 1 at
para. 9, ‘[p]ossibilities and probabilities, chances, opportunities, and risks
must all be considered, so long as they are a real and substantial possibility
and not mere speculation’.”

[166]     I accept
that Ms. Liu has suffered a complete loss of her earning capacity. It is
appropriate to value that loss using an earnings approach, by considering what
she would likely have earned if she had not been injured in the accidents, and considering
both positive and negative contingencies.

[167]     Ms. Liu
intended to work until she was 65 years old. It is likely that she would have
done so if she had not been injured.

[168]     At the
rates that K-Bro was paying in 2014, including overtime earnings, and MSP
premiums, Ms. Liu would likely have earned about $29,000 in 2014. Mr. Chang
argued on behalf of Ms. Liu that the figure net of MSP premiums should be
increased by 10% to reflect non-wage benefits. As with respect to past lost
earnings, in the absence of evidence that Ms. Liu received non-wage benefits in
addition to payment of MSP premiums, the award must consider her regular and
overtime earnings and the payment of her MSP premiums.

[169]     The
average earnings of individuals working in dry cleaning, laundry, and related
occupations is $33,400. Mr. Hildebrand estimated that most workers receive
non-wage benefits which cost the employer about 10% of the salary, although Mr.
Hildebrand did not have information about non-wage benefits in the dry
cleaning, laundry, and related occupations. Mr. Chang argued on behalf of Ms.
Liu that the court should consider that the average earnings are $36,740, consisting
of $33,400 in wages plus $3,340 in respect of non-wage benefits.

[170]     However, I
do not accept that Ms. Liu would likely have earned as much as an average
worker in the industry. Her actual level of earnings at the time of the First
Accident, her poor English skills, her low level of education, and her small
size, all suggest that she would not achieve as much as an average worker in
the industry. Her actual earnings provide the best measure of her likely
earnings if she had not been injured.

[171]     Mr. Hildebrand
provided multipliers including negative contingencies for labour force
participation, unemployment, and part-time factors. He testified that the
figures did not distinguish between those who stop participating in the labour
force by choice and those who stopped because of illness or other risks. He
estimated the contingency for the worker’s injury illness or disability is
about 8 to 10%.

[172]      The
positive contingencies, meaning contingencies which would increase the amount
that Ms. Liu could have earned from the assumption of her present wage rate,
are that Ms. Liu might have found a better job or might have obtained a pay
raise. The negative contingencies are that she might have stopped working. Ms.
Liu was unlikely to stop working by choice. She had not stopped working either
to raise her own children or her grandchildren. However, she might have stopped
working to care for a family member, because of her own illness, or because an
employer ceased or reduced its operations. Overall, the negative contingencies
outweigh the positive contingencies, and a reduction by 10% will reflect those
contingencies.

[173]     The
multiplier applicable for income from trial until Ms. Liu reaches 65 years of
age, discounted for normal life expectancy and using the prescribed 1.5%
discount rate for present value, is 11.525. On my calculations, using that
multiplier, if Ms. Liu had continued to earn $29,000 per year to age 65, she
would have earned $334,225 for the period commencing with the trial. Reducing
that by 10% to reflect the negative contingencies results in a figure of about
$300,000.

[174]      As a
result, Ms. Liu is entitled to $300,000 for loss of earning capacity.

iv) 
Cost of Future Care

[175]     Ms. Liu
claims $51,601.18 to $101,045.80 for the cost of future care. The defence
position is that the award should be $16,669.74.

[176]    
In the case of Tsalamandris v. McLeod,
2012 BCCA 239 at paras. 62 – 63, the B.C. Court of Appeal recently summarized succinctly
how an award for cost of future care should be assessed:

[62] The test for assessing future care
costs is well-settled: the test is whether the costs are reasonable and whether
the items are medically necessary: Milina v. Bartsch (1985), 49 B.C.L.R.
(2d) 33 at page 78; affirmed (1987), 49 B.C.L.R. (2d) 99 (C.A.):

3. The primary
emphasis in assessing damages for a serious injury is provision of adequate
future care. The award for future care is based on what is reasonably necessary
to promote the mental and physical health of the plaintiff.

[63] McLachlin J., as she then was, then
went on to state what has become the frequently cited formulation of the “test”
for future care awards at page 84:

The test for
determining the appropriate award under the heading of cost of future care, it
may be inferred, is an objective one based on medical evidence.

These authorities establish (1) that there
must be a medical justification for claims for cost of future care; and (2)
that the claims must be reasonable.

[177]    
The opinion of a physician is not necessary to
ground an award for cost of future care: Gregory v. Insurance Corporation of
British Columbia, 2011 BCCA 144 [Gregory]. In Gregory, the
court said, on this point:

[38] Courts do accept testimony from a variety of health care
professionals as to necessary and reasonable costs of future care: Jacobson
v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63, 133 D.L.R. (4th) 377
(S.C.) at para. 182; in which Levine J. (as she then was) said:

[182] The test she enunciated does
not, in my view, require that the evidence of the specific care that is
required by the plaintiff be provided by a medical doctor. In Milina v.
Bartsch, McLachlin J. accepted the evidence of a rehabilitation expert as
to the type of care that should be provided.

See also: Aberdeen v. Zanatta, 2008 BCCA 420 at paras.
43-53, 63; Rizzolo v. Brett, 2010 BCCA 398 at paras. 72-83.

[39] I do not consider it
necessary, in order for a plaintiff to successfully advance a future cost of
care claim, that a physician testify to the medical necessity of each and every
item of care that is claimed. But there must be some evidentiary link drawn
between the physician’s assessment of pain, disability, and recommended
treatment and the care recommended by a qualified health care professional: Aberdeen
at paras. 43, 63.

[178]     Ms. Liu
claims about $5,150 for the present value of the cost of Diclophenac in
Phlogel. This is a prescription ointment which Ms. Liu applies to her low back,
legs and shoulders in the mornings and evenings, and it provides some relief
for about five to six hours. Dr. Chan prescribed it and Dr. Giantomaso
recommended it. She is entitled to an award for this.

[179]     Ms. Liu
claims about $11,200 for the present value of the cost of naproxen. This is a
prescription painkiller which Ms. Liu takes twice daily. Dr. Chan prescribed it
and Dr. Giantomaso recommended it. She is entitled to an award for this.

[180]     Ms. Liu
claims about $13,800 to $63,300 for traditional Chinese medicine treatment. This
is based on her report that Ms. Tang’s manipulations provide Ms. Liu with some
temporary relief. It is also based on Dr. Chan’s statement that she may require
future conservative treatment of thermal, medications and rubs massage,
physiotherapy, exercise, TENS, and similar treatments.

[181]     Ms. Liu’s
claim is based on Ms. Tang’s evidence that the cost of Chinese medicine
manipulations would likely be $68 per treatment. Ms. Liu’s claim is for the
present value of two to ten years of such treatments at two treatments per week.

[182]     Ms. Liu is
likely to require some future treatments, such as massages, physiotherapy, and
heat. While the medical evidence did not support Ms. Liu receiving traditional Chinese
medicine manipulations, she should receive an award for some conservative
physical treatments. She is likely to need them intermittently, but not as
frequently as twice a week. An award of $15,000 is appropriate for conservative
manipulative treatments.

[183]     Ms. Liu
claims the cost of a community centre membership in the range of $4,200 to
$3,400. This is a reasonable cost and Ms. Liu is entitled to $4,200 for it.

[184]     Ms. Liu
claims about $13,900 for the yoga and Pilates programs. This is based on the
present value of one three-month class in yoga or Pilates annually. It would be
useful for Ms. Liu to have periodic access to classes, to ensure that she is
using proper form and to provide some motivation. There was no evidence about
the availability of classes conducted in the Cantonese language, although
demonstration might be sufficient. She is not likely to require a three month
program each year. An award of $7,000 is appropriate for yoga and Pilates
classes.

[185]     Ms. Liu is
entitled to an award for the costs of future care taking into account the
following:

[186]     The costs
of future care cannot be calculated with precision and an award requires an
assessment taking into account various contingencies. Ms. Liu is entitled to $43,000
for the cost of future care.

v)   
Past Loss of Housekeeping Capacity

[187]     Ms. Liu claims $46,800 for the past loss of capacity to perform
housekeeping services.

[188]    
The test for loss of housekeeping and home maintenance capacity was
succinctly stated by Blair J. in Menhinick v. Lobesz, 2008 BCSC 1285 at
para. 55:

…The plaintiff must establish a
real and substantial possibility that she will continue in the future to be
unable to perform all of her usual and necessary household work, and that the
work she will not be able to do will require her to pay someone else to do it,
or will require others to do it for her gratuitously.

[189]     Damages
may be awarded for loss of housekeeping capacity even if the plaintiff has not
incurred any actual expenses for hired services: see Kroeker v. Jansen
(1995), 4 B.C.L.R. (3d) 178 (C.A.) at para. 9, leave to appeal ref’d [1995]
SCCA No. 263; Easton v. Chrunka et al., 2006 BCSC 1396 at para. 45; and Dykeman
v. Porohowski, 2010 BCCA 36 at para. 28.

[190]     In Kroeker,
the majority of the Court of Appeal recognized that damages for past and future
loss of housekeeping and home maintenance capacity may be by pecuniary or
non-pecuniary damages, and if non-pecuniary, that there was no reason these
damages could not be segregated.

[191]     Ms. Liu has been substantially unable to perform her housekeeping
duties since the First Accident. Ms. Liu’s evidence suggested that she spent
more than 21 hours a week on household tasks prior to the First Accident. That
consisted of two hours a day in preparing dinner, one half hour each day
washing dishes, one half hour each day cleaning the kitchen, daily laundry, and
vacuuming every few days.

[192]     Since the First Accident, those tasks have been performed by
relatives, primarily her daughters Cindy and Mary.

[193]     Mr. Chang argued on Ms. Liu’s behalf that a reasonable and
conservative estimate would be that 12 hours per week is necessary to maintain
the household. Mr. Chang suggested that $15 per hour was a reasonable market
rate for such services. That rate was accepted in Deo v. Deo, 2005 BCSC
1788 at para. 15 and Chamberlain v. Giles, 2008 BCSC 171 at para. 127. There
may have been evidence in those cases about the market rate. Here there was no
such evidence.

[194]    
In Amini v. Khania, 2014 BCSC 1671, Burnyeat J.
discussed the need for evidence about the cost of housekeeping services. He
wrote as follows, after referring to Deo and Chamberlain:

[78] There was
no evidence led on behalf of Mr. Amini in that regard. I cannot be satisfied
that it is appropriate to make a finding that $15 is a reasonable cost for
housekeeping services when no evidence was presented and where the only
reference to $15 is to decisions reached in other litigation where there was
evidence before the Court as to what was a reasonable sum to be paid for
household assistance.

[195]     Burnyeat J. made an award as though the loss were the loss of an
amenity, rather than on the basis of a calculation using $15 per hour.

[196]     It is reasonable for Ms. Liu to recover for lost housekeeping
capacity on the basis of 12 hours of work weekly. There was no evidence about
the cost of such services. Ms. Liu’s own wage at G & K at the time of the
First Accident was $11.15 per hour. It is reasonable to assume that she could
have found household assistance at that rate.

[197]     At $11.15 per hour for 12 hours a week, Ms. Liu would have incurred
$133.80 per week. For five years (being 260 weeks), the total is $34,788.

[198]     Ms. Liu lost her housekeeping capacity in the First Accident. Prior
to that, she devoted a significant amount of time looking after the family of
five people living in the home. It has been five years since the First
Accident. Ms. Liu is entitled to $35,000 for past loss of housekeeping
capacity.

vi) 
Future Loss of Housekeeping Capacity

[199]     Ms. Liu
claims $46,800 for her future lost housekeeping capacity. Mr.
Chang argued that an assessment on the basis of five years at the same rate as
the past lost housekeeping services, without any deduction for present value,
would be a fair award. The defence argued that Ms. Liu should not receive an
award for future loss of housekeeping capacity.

[200]     Ms. Liu
spent a great deal of time on housekeeping duties, and family members will have
to do those duties for her in the future. It is likely that her housekeeping
responsibilities would have diminished even without the accidents because some
or all of her children may have moved to their own homes. An award reflecting
five years takes this into account.

[201]     A fair award for Ms. Liu’s future loss of housekeeping capacity is
$35,000.

vii)
Special Damages

[202]     Ms. Liu
claims $1,649.20 for special damages. The defence position is that she should
receive $1,164.50, being about $500 less. Part of the defence objections
related to liability for the Third Accident and to mitigation. The defence
failed on those issues, so there will not be a deduction on those grounds.

[203]     Ms. Liu’s
claim included a claim for $184.70 for dental work on March 7, 2013. There was
no medical or dental evidence demonstrating that this expense arose from the
accidents. The Third Accident occurred about one and a half years prior to the
dental expense.

[204]     Apart from
the dental claim, Ms. Liu’s claim for special damages is in order. She is
entitled to $1,464.50 ($1,649.20 less $184.70).

SUMMARY

[205]     In
summary, Ms. Liu is entitled to the following:

a)    $90,000 for
non-pecuniary damages;

b)    the amount net
of tax equivalent to the gross amount of $136,700 for
past wage loss;

c)    $300,000 for
lost earning capacity;

d)    $43,000 for the
costs of future care;

e)    $35,000 for past
loss of housekeeping capacity;

f)      $35,000
for future loss of housekeeping capacity;

g)    $1,464.50 for
special damages; and

h)    applicable
pre-judgment interest.

[206]    
If the parties cannot agree on the figures relating to pre-judgment
interest or the amount of past wage loss net of tax, the question or questions
are referred to the registrar for determination. If either party wishes to make
submissions on costs, counsel should estimate the time required and schedule a
hearing before me through the registry. If neither party wishes to make
submissions on costs, Ms. Liu is entitled to her costs on Scale B, for matters
of ordinary difficulty.

“Gray J.”