IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150515

Docket: M123488

Registry:
Vancouver

Between:

Hue Quynh Diep

Plaintiff

And

Sonia Cunha, John
Doe and
Insurance Corporation of British Columbia

Defendants

Before:
The Honourable Mr. Justice Verhoeven

Reasons for Judgment

I.                
INTRODUCTION

[1]            
This is a claim for damages arising out of a motor vehicle accident that
occurred September 12, 2010, in which the plaintiff, Ms. Hue Quynh Diep, was
a pedestrian who was struck by the defendant’s vehicle.

[2]            
The plaintiff is an immigrant from Vietnam who came to Canada in 1996. 
She was 38 years of age at the time of the accident.  She is now 43. She works
as a seamstress (sewer) at a garment factory.  She is single.  She lives with
her mother and elder brother.

[3]            
Although the immediate injuries she sustained in the accident were very
slight, she claims damages based upon what are alleged to be likely permanent
injuries primarily to her low back and her left leg (hip, thigh and knee).  The
plaintiff’s claims are in the range of $781,923 to $876,923.  The plaintiff
contends that due to chronic and essentially permanent injuries she can only
work to about 30% of her former capacity as a seamstress.

[4]            
The claims against the Insurance Corporation of British Columbia
(“ICBC”) and John Doe have been discontinued.

[5]            
The defendant, Ms. Sonia Cunha, concedes that the plaintiff was
injured in the accident, but argues that she substantially recovered within a
reasonable time after the accident.  The defendant also contends that the
plaintiff has not made every reasonable effort to return to her full potential
in terms of employment, and that she will likely be able to return to her
without-accident employment status at some point in the future.  The defendant
contends that the plaintiff is entitled to an award of damages in the $100,000
to $150,000 range.

[6]            
The major issues in this case relate to the plaintiff’s prognosis; in
particular, whether she will recover, and how her injuries will affect her in
future.

II.              
BACKGROUND FACTS

A.             
The accident

[7]            
The plaintiff was a pedestrian crossing East Broadway at the
intersection with Renfrew Street in Vancouver when she was struck by the
defendant’s vehicle, at around 5:10 or 5:20 p.m. on Sunday, September 12, 2010.
She had gone out for a walk and to do some shopping.  She was in a marked crosswalk.
The defendant, who was driving her vehicle, was making a left turn from
southbound on Renfrew to go eastbound on East Broadway.

[8]            
The defendant’s vehicle was moving slowly at the time of the impact. 
The contact with the plaintiff was slight.  The plaintiff was struck on her
left leg.  She was not knocked down. I accept her testimony that her upper back
was bent backwards and her body was spun around or twisted. She managed to
avoid falling down.  After the impact she squatted or crouched down, felt
immediate pain, and stood up.  The collision did not cause her to drop the
shopping bag and umbrella she was carrying. The vehicle that struck her did not
stop. The plaintiff continued on across the intersection, where she sat down on
a bus stop bench. Another driver stopped and provided her with a piece of paper
on which he had written the licence plate number of the vehicle that struck her. 
She took a bus home. When she arrived home she reported the accident by calling
9-1-1 and speaking to the police.  The next day she reported the accident to
ICBC.

B.             
Liability for the accident

[9]            
Liability is not formally admitted, but the defendant does not seriously
contest liability. The defendant did not testify. On her examination for
discovery, she testified that she did not see the plaintiff, but she heard a
“thump thump” sound as she made her turn. The defendant does not deny that her
vehicle struck the plaintiff.

[10]        
The plaintiff was walking in a marked crosswalk when the accident
occurred. The pedestrian control signal was in her favour.  In the
circumstances she had the right of way, as a matter of law.  No excuse was
offered or suggested by the defendant for the occurrence of the accident. It is
not suggested that the plaintiff was at fault in any way. It was daylight.  The
defendant simply failed to see the plaintiff and failed to take appropriate
steps to avoid the accident.  The circumstances are governed by ss. 127(1)(a)(ii)
and 127(1)(b) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318:

127 (1) When a green light alone is exhibited at an
intersection by a traffic control signal,

(a) the driver of a vehicle facing the green light

…

(ii) must yield the right of way to pedestrians lawfully in
the intersection or in an adjacent crosswalk at the time the green light is
exhibited, and

(b) a pedestrian facing the green light may proceed across
the roadway in a marked or unmarked crosswalk, subject to special pedestrian
traffic control signals directing him or her otherwise, and has the right of
way for that purpose over all vehicles.

[11]        
I find that the accident was solely caused by the defendant’s negligence
in failing to yield the right of way to the plaintiff as the defendant was
required to do.

C.             
Pre-accident condition of the plaintiff

[12]        
The plaintiff suffered from severe scoliosis (lateral curvature) of her
thoracolumbar spine.  She had this condition since, at least, her teen years.  She
contends that this condition was essentially asymptomatic prior to the
accident.

[13]        
 As of February 2008 (two and one-half years pre-accident) she was
complaining of severe intermittent pain in her left flank and left arm, and
also some mild bilateral buttock pain, for which she was sent to see Dr. Dvorak,
an orthopaedic surgeon.

[14]        
These complaints were of a different kind and character than those she
complains of post-accident.  I find that despite her scoliosis, the plaintiff
was essentially healthy prior to the accident.

D.             
Injuries and course of treatment

[15]        
As noted, the plaintiff’s immediate injuries were minor. She had a minor
scratch and scrape on the lower outside portion of her left leg, and a very
small bruise on the front of her left shin.  On the day after the accident, her
G.P.’s locum doctor, Dr. Vera Lee, noted tenderness over her right
shoulder, right iliac crest (right hip area), lower back, left leg, and left
knee.  The plaintiff reported tightness in her right shoulder and in her left
leg.  Dr. Lee recommended anti-inflammatory medication (Advil) and
physiotherapy for her soft tissue injuries, and planned to see her in another
week.  However the plaintiff was seen by Dr. Lee the next day, September
14, 2010. She complained of pain in her left lower leg (specifically, the front
of the tibia), aggravated by walking, and twitching pain in her left lower leg
at night.  An X-ray of her tibia and fibula was arranged, which revealed that
there was no fracture.

[16]        
Dr. Lee saw the plaintiff again on September 20, 2010. She complained
of pain in her right hip, left lateral (outer) thigh, and left tibia, with
walking, which was limited to about two blocks. She had left shoulder blade and
left arm pain as well.  Her right shoulder was improved but her right elbow had
developed intermittent pain. Her sleep was suffering. Dr. Lee recommended
that she use Tylenol and that she use a muscle relaxant, Robaxacet, at night to
reduce her aches and pains to help her with her sleep. She recommended
continuation of physiotherapy.

[17]        
The plaintiff saw her own family doctor, Dr. Kam, for the first
time on September 28, 2010. Dr. Kam saw her in follow up on October 12,
October 26, November 18, and December 9, 2010.  He has continued to treat her
since then. He provided a detailed, thorough report and testified at trial. He
noted that by October 12 her right shoulder and right arm pains were largely
resolved. She continued to have back pain, and left leg and left knee pain.  On
December 9, she said that her back pain had improved by 20% and her left knee
pain was about 40% better.  She had by then completed a total of 33
physiotherapy sessions.  She could walk for about five blocks without much
discomfort.

[18]        
 The plaintiff was assessed again by Dr. Dvorak, the orthopaedic
surgeon, on January 20, 2011.  According to Dr. Kam, Dr. Dvorak found
no neurological deficit, and the X-rays of her spine showed no obvious
fractures or alignment changes as compared with her pre-accident X-rays from
2008.  She was advised to participate in activities to her tolerance level.

[19]        
When seen again by Dr. Kam on February 17, 2011, the plaintiff had
completed an active rehabilitation exercise program at a community gym with the
guidance of her physiotherapist, Edward Wong.  However her condition had
worsened. Dr. Kam referred her to Dr. Cecil Hershler, a physiatrist.

[20]        
When seen by Dr. Kam on May 13, 2011, the plaintiff said that her
aches and pains had improved by about 30% to 40%. She had resumed physiotherapy
treatments. She continued to have low back, left thigh and left knee pain, with
limited tolerance for sitting and walking.

[21]        
The plaintiff saw Dr. Hershler on June 27, 2011. She told Dr. Hershler
that her condition had improved about 50% since the accident.  She saw him in
follow up on four subsequent occasions to February 3, 2014.  Dr. Hershler
provided a medical-legal report dated July 18, 2014 and testified at trial.  He
saw her again on October 7, 2014, following preparation of his report.  His
evidence will be referred to below.

[22]        
On July 6, 2011 the plaintiff told Dr. Kam that her pain was
slightly better overall. She could walk five or six blocks, could stand for
half an hour, and could sit for one to two hours.  She was advised to remain
active.

[23]        
She continued to see Dr. Kam on a regular basis but with
diminishing frequency.  She resumed physiotherapy treatments in October 2011,
with another physiotherapist, Mr. Andre Paixao.  She undertook another 16
physiotherapy treatments.

[24]        
At trial the plaintiff testified that by the time the treatment with Mr. Paixao
concluded (May 2012) her low back pain was 60% better, and her left knee
was 50% better.

[25]        
Dr. Kam referred her to a psychologist, Dr. Macy Lai, for
counselling.  She was suffering from fears in crossing streets.

[26]        
By June 13, 2012, the plaintiff reported to Dr. Kam that her backache
was reduced by about 60% and her left thigh, hip and knee pain had improved by
about 50%. (This is precisely the same testimony that she gave at trial). She
could sit for over two hours to watch a movie. 12 sessions of psychological
counselling to help her deal with her fears in crossing the street did not help
her very much.  Her sleep continued to be affected by her backache.

[27]        
When seen October 4, 2012 (just over two years post-accident), she
complained that her symptoms had worsened.  She had resumed physiotherapy
treatments with Mr. Wong.  She was taking Nortriptyline to help her sleep.
The physiotherapy continued to October 12, 2012, for a total of ten further
treatments.

[28]        
The plaintiff also had a number of massage therapy treatments in September
to November 2012.

[29]        
On February 19, 2013 the plaintiff reported to Dr. Kam that her
back pain was about 70% better, but she had not seen recent improvement in her
left leg and knee pain.  Dr. Kam noted that she was having difficulties
with mood, and fear and anxiety when crossing streets. He says that she was
apparently suffering from an adjustment disorder with depressive symptoms as a
result of the accident.  The plaintiff declined his suggestion of
anti-depressant medication.

[30]        
By May 8, 2013 the plaintiff reported some improvement in her lower back
pain. She had by then been working steadily part time as a seamstress for about
four months. She continued to have pain in her left leg.  She could tolerate five
or six blocks of walking or two hours of sitting.  She stated that her mood had
improved.  Her condition was similar when she was seen August 8, 2013, November
13, 2013, and April 16, 2014. She was advised to remain as active as possible
and to continue with her part time job.

[31]        
When she was seen July 15, 2014, for the final time before Dr. Kam
prepared his report, she expressed similar complaints of low back and left leg
pain and limitation of function as before. She also had intermittent right
thigh discomfort.  She could walk five or six blocks and perform light
housekeeping.  She was working four hours per day, four to five days per week.

[32]        
Dr. Kam provided the following summary of her injuries sustained in
the accident:

Prior to the MVA, Ms. Diep was a healthy, active, independent
female who used to work as a full time seamstress for a garment factory. She
was laid off for about 10 months at the time of the MVA. As a result of this
pedestrian-struck MVA, she suffered soft tissue injuries on her right shoulder,
right arm, right hip, left scapular, lower back, left leg and left knee. With
the help of physiotherapy treatments and massage therapy, the pain on her right
shoulder, arm and hip and left scapular was largely resolved while the
discomfort on her lower back, left leg and left knee lingered since the MVA.
The chronic pain secondary to the soft tissue injuries was significant enough
to limit her sitting to 2 hours, standing to about 30 minutes or walking for 5
to 6 blocks as well as preventing her from squatting fully. Moreover, she had
difficulties in carrying items over 5 pounds and managed light house work only.
She had to take an anti-inflammatory medication and apply a topical
anti-inflammatory gel on her left knee daily to ease her chronic discomfort.
Furthermore, she required the use of a hypnotic medication to minimize sleep
disturbance in most days of a week.

In addition to her physical
ailment, Mrs. Diep’s emotion was also detrimentally affected. She
exhibited post-traumatic stress symptoms including difficulties in coping with
her aches and pain, depressed mood, non-refreshing sleep and anxiety in
crossing intersections. Consequently, she obtained psychological counseling
such that her post-traumatic stress symptoms gradually subsided and Mrs. Diep
regained some confidence in her walks and crossing the streets independently.
Nevertheless, she remained timid in crossing intersections by herself at night.

E.             
Extent of injuries sustained and prognosis

[33]        
The plaintiff’s ongoing major complaints are to her low back, left thigh
and hip, and left knee.  Her evidence at trial as to the course of her
complaints was very consistent with what she described to Dr. Kam, as
detailed in his report.

[34]        
Dr. Kam describes the source of these complaints as soft tissue
injuries stemming from the accident.  His prognosis is generally negative, but
with much uncertainty. He says that her aches and pains are “chronic in nature”
and her limitations in sitting, walking and squatting are expected to “persist
for an extended period.” He says that “…it would be doubtful” whether she could
regain full time employment “in the foreseeable future.”  Her psychological
problems were improved but she continues to have fears in crossing the street.  He
has few recommendations for treatment. He suggests that she do stretching
exercises and apply heat to her muscles. He recommends continuation of the use
of medications: an anti-inflammatory (Celebrex), a topical anti-inflammatory
for pain control (Voltaren) and sleep medication (Nortriptyline). He opines
that she might benefit from further physiotherapy and massage therapy, and
possibly further psychological counselling “if her symptoms become more
prominent in future.”

[35]        
The plaintiff has not engaged in physiotherapy since January 16, 2013,
approximately two years and three months before trial. She last had massage
therapy in November 2012. She told Dr. Fuller and Dr. Kam that she
did not find massage therapy helpful, but at trial she said it was helpful to
her low back, but not her left leg and knee problems. She last had
psychological counselling in May 2012.

[36]        
Dr. Hershler found tenderness to palpation in her low back, and
tightness and pain in her left thigh and left knee. He noted an extremely tight
iliotibial band (a band of fibrous tissue that runs down the outside of the
thigh from the pelvis to the knee).  In relation to her low back, he diagnosed
“mechanical pain”, which I take to be a general, non-specific reference to
anatomical low back (spinal) pain of some sort. (Dr. Hershler did not
provide a definition.) In his view there is a relationship between her
pre-existing scoliosis and her present condition. He says that the scoliosis
“has probably been rendered symptomatic” and “this mechanical pain refers into
her left leg”, causing tightness.  Her scoliosis causes her pelvis to be
tilted, which probably puts strain on her left leg iliotibial band.

[37]        
Dr. Hershler’s prognosis is negative. He states that in his
practice 80% of patients with similar types of injuries recover within three
years, another 10% within five years, and 10% “have permanent symptoms”. He
does not rule out further improvement for the plaintiff, but given her chronic
symptoms he says “the window is closing”. By “recovery” he means that the
symptoms diminish to tolerable levels.  Overall he is of the view that “it is
more likely than not” that her symptoms will be “permanent” given that at trial
nearly five years had elapsed since the injury.  He suggests frequent breaks
from work for stretching, topical anti-inflammatory use, and the use of a hot
spa weekly to apply heat to her muscles, and stretching exercises.

[38]        
At trial, Dr. Hershler testified that he encouraged the plaintiff
to continue working and to push the boundaries of her pain tolerance.  In his
opinion, she is not harming herself physically by doing so.

[39]        
At the request of her counsel, the plaintiff saw an orthopaedic surgeon,
Dr. John A. Fuller, on October 2, 2013. Dr. Fuller provided a report
and testified at trial.

[40]        
Dr. Fuller diagnosed the following:

1.     Sacroiliac
dysfunction involving primarily the right sacroiliac joint, which presents as
being slightly anteriorly (i.e., forward) rotated;

2.     Persistent
tension involving the fascia lata, [part of which is the iliotibial tract or
band] possibly secondary to the marginal pelvic displacement;

3.     Slight
laxity of the medial collateral ligament of the left knee. Tenderness to
palpation of the pes anserinus [the pes anserinus is a combination of three
tendons from three leg muscles (hamstring muscles) which pass around the inner
aspect of the knee, and connecting to the tibia].

[41]        
In overall terms, Dr. Fuller describes the plaintiff as having a “complex
malalignment problem”, possibly interrelated to her pre-existing severe
scoliosis which could exacerbate her situation. However he readily concedes
that his analysis is “to a significant degree speculative and by no means
definitive.”

[42]        
Dr. Fuller provides a negative prognosis and makes no suggestions
for treatment. He says that “the prognosis for resolution of this patient’s
residual symptoms is poor and it would be my opinion that she has essentially
reached maximum medical recovery.”

[43]        
The plaintiff saw Dr. Simon Horlick, an orthopaedic surgeon, at the
defendant’s request on September 11, 2014. Dr. Horlick provided a report
and testified at trial.

[44]        
As with the other doctors, the plaintiff described: (1) low back pain,
lateral (i.e. to the outside); (2) hip and thigh discomfort; and (3) medial (to
the inside) left knee pain. She told Dr. Horlick that all of her
complaints had improved or were improving.

[45]        
With respect to two out of three of her areas of complaint, Dr. Horlick’s
diagnosis was notably different than that of Dr. Fuller.  Dr. Horlick
diagnosed:

1.     Myofascial
injury (soft tissue injury to muscles, ligaments and tendons) in the lower
lumbar region of her spine.  Dr. Horlick did not agree with Dr. Fuller’s
diagnosis of sacroiliac joint dysfunction or rotation of the right sacroiliac
joint;

2.     Trochanteric
bursitis in the left hip and thigh. That is, inflammation of the trochanteric
bursa (the large fluid sac in the area of the greater trochanter of the hip);

3.     Discomfort
in the pes anserinus (again, and as also described by Dr. Fuller, the pes
anserinus is the confluence of the tendons of three leg muscles attaching to
the tibia below the knee).

[46]        
With respect to prognosis, Dr. Horlick is much less negative than Dr. Fuller. 
He states that there is no medical contraindication to her being able to
increase her hours of work from part time.  That is, although she could suffer
an increase in pain temporarily, she will not harm herself by increasing her
activity level.  None of the doctors said otherwise.

[47]        
In Dr. Horlick’s opinion, the plaintiff’s low back injury should
continue to slowly improve, but she would benefit from measures such as a
reconditioning program with emphasis on core stabilization and cardiovascular
fitness, and regular stretching.

[48]        
With respect to her hip and thigh problem, Dr. Horlick suggests
iliotibial band stretching exercises, roller therapy [use of a foam roller],
anti-inflammatory medication, and perhaps cortisone injections into the
trochanteric bursa.  Similarly, with respect to her knee pain, which consists
of discomfort in the pes anserinus region, he suggests stretching exercises,
judicious use of anti-inflammatory medication and occasional use of topical
anti-inflammatory cream. Specifically in relation to her hip and knee
complaints, he says that “there is no harm in working through the discomfort.”  He
describes these conditions as “benign” in the sense that they are predominantly
subjective. They are not expected to result in progressive impairment,
disability, or the need for surgery.

[49]        
Dr. Horlick sees little if any relationship between the plaintiff’s
pre-existing scoliosis and the injuries she sustained in the accident, except
for the possibility that the tilt of her pelvis could be contributing slightly
to her left sided trochanteric bursitis and associated iliotibial band
syndrome.

[50]        
None of the doctors noted any neurological findings.

[51]        
At present the plaintiff is not receiving any further medical treatment
for her injuries. As noted, she last underwent physiotherapy January 16, 2013.
Currently her rehabilitative efforts seem quite modest. She uses a foam roller
at home, and she does exercises at home as recommended to her in the past.  She
testified that she does these exercises in the morning in her bedroom and in
the evening in the living room.  She lives with her older brother Uy (“John”)
and her mother.  Uy testified but provided only very limited corroboration of
her exercise efforts.  He mentioned seeing her sitting on a sofa using a foam
roller under her legs.

[52]        
The plaintiff uses a hot towel on her leg and lower back. She soaks her
legs and feet in hot water.  She continues to use Celebrex (an
anti-inflammatory drug) and Voltaren gel (a topical anti-inflammatory) for her
knee pain. She told Dr. Horlick that she takes one Celebrex every other day,
however her prescription records are more consistent with daily use.  She
uses sleeping drugs (Nortriptyline). She limits her activities to light
housework and short walks. She limits her work to part time as a seamstress,
although full time work would be available to her with her current employer,
Dynasty Fashionwear Ltd. (“Dynasty Fashionwear”).

[53]        
The plaintiff testified that she feared her pains would get worse and
worse, and that she might not be able to continue working in the future.
However, there is no medical support for this concern on her part. The medical
opinions are consistent that the plaintiff will not harm herself by being
physically active, and that she should be as active as possible. Her level of
functioning is limited by pain.

[54]        
I accept that the plaintiff suffered what can be described as soft
tissue type injuries to her low back, left hip and thigh, and left knee in the
accident.  These injuries have shown slow but substantial improvement over the
course of more than four years since the accident.  It is possible that the
injuries have plateaued as suggested by Dr. Fuller and to a lesser degree
by Dr. Hershler. However her G.P., Dr. Kam, only states that her
aches and pains and limitations will persist for an extended time.  In my view
it is clear that the plaintiff’s condition can continue to improve, especially
if she engages in the kinds of treatments suggested by Dr. Horlick.

[55]        
With respect to her low back pain, I prefer the opinion of Dr. Horlick
to that of Dr. Fuller.  Dr. Fuller diagnosed sacroiliac rotation and
malalignment. In his view while manual therapy could assist with the alignment
problem, it might do more harm than good.  On the basis of his diagnosis he
thought that remedial exercise would not likely help.  However, as he conceded,
Dr. Fuller was quite unsure of the plaintiff’s diagnosis.  I am not
persuaded that he is correct that her low back problem is other than soft
tissue in nature. On that basis, the exercise therapy recommendations of Dr. Horlick
are preferable, and in my view are supported by the other opinions and the
course of her treatment and recovery so far. That is, physiotherapy and
rehabilitation have been of benefit in the past.

[56]        
I also prefer Dr. Horlick’s diagnosis of trochanteric bursitis as
being the main problem with her left hip.

[57]        
My impression of the plaintiff is that she is sensitive, and very
cautious.  She is not stoical in her relation to her aches and pains. She could
make greater efforts to improve her health and function, in particular by
further active exercise and rehabilitation. She seems overly resigned to her
present level of functioning.  Her circumstances are such that she is not
forced to increase her activity levels.  She has no dependants.  She lives
communally with her older brother and her mother, who take care of most of the
domestic chores.  I agree with Dr. Horlick who testified that she needs to
be instructed in the difference between “hurt” and “harm”.

[58]        
I think it is reasonable to provide for further active rehabilitation
physiotherapy and exercise therapy by way of future care costs, as this may provide
support and encouragement for an increase in the plaintiff’s rehabilitative
efforts.  She may choose to try cortisone injections for her trochanteric
bursitis as suggested by Dr. Horlick.  Dr. Kam suggests that
physiotherapy and massage therapy were helpful in the past and states that “…she
would require further treatment if her pain and muscle tightness resurfaces in
future…” As the plaintiff is continuing to have these complaints now, it seems
to me that further such treatment is indicated presently.

[59]        
I place more weight on the more positive prognosis of Dr. Horlick
than the more pessimistic views of Drs. Hershler and Fuller. I accept that when
the plaintiff saw Dr. Horlick a year later than when she saw Dr. Fuller,
she described continuing but slow improvement in her complaints. I conclude
that with treatment and effort on her part, there is room for further
improvement in her condition.

[60]        
However, I also accept that her prognosis is uncertain, and there is a
substantial risk that her condition will continue to persist for several more
years, or could even be essentially permanent. However there is also a
substantial possibility that her condition will improve in the relatively near
term, with further effort on her part and with appropriate further rehabilitative
treatment.

III.            
Effect of pre-existing condition

[61]        
The defendant submits that any award of damages must take into account
the risk that the plaintiff’s pre-existing condition would have detrimentally
affected the plaintiff in the future, regardless of the defendant’s negligence:
Laidlaw v. Couturier, 2010 BCCA 59.  In that case the Court of Appeal
referred to Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 35,
where the Court stated “… if there is a measurable risk that the pre-existing
condition would have detrimentally affected the plaintiff in the future,
regardless of the defendant’s negligence, then this can be taken into account
in reducing the overall award…”.

[62]        
The defendant argues that the plaintiff’s scoliosis was somewhat
symptomatic before the accident, which leads to the conclusion that there was
always a risk that she would have problems at some point in the future,
regardless of the accident.

[63]        
The evidence does not support this submission.  The plaintiff’s
scoliosis was essentially asymptomatic prior to the accident. That condition
has little if any relationship to her present diagnosis.  The pain she was
complaining of in 2008 for which she saw Dr. Dvorak was of a different
kind and character to that which she complained of following the accident. 
There is no medical opinion before me which supports a conclusion that there
was a material risk (or “measurable” risk) that her scoliosis would have become
symptomatic and would have caused her to suffer injury or loss in future
regardless of the accident.

[64]        
However, her scoliosis and her very small stature (she stands only 4’7”
and weighs only 80 pounds) were pre-existing limiting conditions in relation to
work opportunities, and are relevant facts in relation to the assessment of
loss of earning capacity.

IV.           
ANALYSIS – QUANTUM OF DAMAGES

A.             
Non-pecuniary loss

1.              
Legal principles

[65]        
I adopt my comments concerning the applicable legal principles relating
to the assessment of non-pecuniary loss in Gillam v. Wiebe, 2013 BCSC
565 at paras. 68-71 and do not need to repeat them in full here.

[66]        
The assessment of non-pecuniary damages is necessarily influenced by the
individual plaintiff’s personal experiences in dealing with his or her injuries
and their consequences, and the plaintiff’s ability to articulate that
experience: Dilello v. Montgomery, 2005 BCCA 56 at para. 25.
Factors to consider in the assessment include: (a) age of the plaintiff; (b)
nature of the injury; (c) severity and duration of pain; (d) disability; (e)
emotional suffering; (f) loss or impairment of life; (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: Stapley
v. Hejslet, 2006 BCCA 34 at para. 46.

2.              
Assessment – non-pecuniary loss

[67]        
As noted, Ms. Diep was 38 years of age at the time of the accident,
and she is now 43. She is unmarried and has no children.  She resides with her
older brother and her mother.

[68]        
She had a somewhat sedentary lifestyle prior to the accident.  She
enjoyed occasional walks. She sewed clothing at home. She was able to
participate fully in domestic chores. She had been working full time as a
seamstress in a garment factory until about ten months prior to the accident.
However in October 2009 the factory closed. She was unemployed and looking for
work when the accident occurred.

[69]        
Her initial injuries included a minor scratch and a bruise to her leg,
and pain in her right shoulder, right elbow, and right hip area.  These
injuries resolved within a few days or weeks. She has been left with continuing
chronic pain in her low back, left hip and thigh, and left knee area. These
injuries have slowly, substantially improved over the four and one-half years
since the accident, but remain present and continue to cause the plaintiff
daily pain which limits her functioning in relation to her work, and her
domestic life.

[70]        
Her persisting injuries also limit her recreational activities to some
extent, although she was not very active prior to the accident.  Her tolerance
for walking has been limited.  Her main hobby was sewing.  She no longer sews
at home.  The plaintiff’s housekeeping abilities have been curtailed and they
may continue to be curtailed in future.  She can only do light housekeeping.
She relies on her older brother and her mother to do heavier work such as
vacuuming the floors and scrubbing the bathtub and toilet.  She has difficulty
crouching to do these tasks. This loss is not a major feature of her case.

[71]        
She continues to take medications to help her cope, including daily
Celebrex, and sleep medication and topical anti-inflammatories.  Since January
2013 she has been working only part time (approximately 30 to 50% of full time
hours).  She suffered from anxiety for which she was treated with psychological
counselling.  Her anxiety has improved but persists to some degree.

[72]        
As I have said, the prognosis for recovery is highly uncertain.  Her
injuries may continue to slowly improve, especially with further treatment
including exercise coupled with some confidence and determination on her part. 
However her injuries may persist for several more years, despite her best
efforts, or they may be essentially permanent.

[73]        
I have said that the plaintiff cannot be described as stoical.  This is
not a case where the plaintiff’s injuries have caused a major lifestyle
disruption in areas of her life apart from work, although of course there have
been consequences, notably  limits on her ability to walk and discontinuance of
her sewing hobby, among other things.  Her injuries have so far limited her to
part time work.  There is a risk that she will not be able to resume full time
work in future. This factor also needs to be recognized in the award of
non-pecuniary damage.

[74]        
The plaintiff submits that an appropriate award of non-pecuniary damages
would be in the range of $90,000 to $120,000.  The defendant submits that the
appropriate range is between $50,000 and $60,000.

[75]        
For comparison purposes the plaintiff relies on the following cases: 
(1) Chahal v. Righele, 2014 BCSC 1086 ($120,000); (2) Prince-Wright v.
Copeman, 2005 BCSC 1306 ($100,000, which the plaintiff submits is
equivalent to $118,500 in 2015 dollars); (3) Majchrzak v. Avery, 2013
BCSC 1626 ($95,000); (4) Hart v. Hansma, 2014 BCSC 518 ($95,000); (5) Combs
v. Moorman, 2012 BCSC 1001 ($90,000); and (6) Liu v. Bains, 2015
BCSC 486 ($90,000).

[76]        
The defendant relies on the following cases: (1) Brown v. Rafan,
2013 BCSC 114 ($35,000); (2) Bissonnette v. Horn, 2012 BCSC 518 ($50,000);
(3) Lourenco v. Pham, 2013 BCSC 2090 ($50,000); (4) Eblaghie v. Lee,
2010 BCSC 703 ($60,000); (5) Zawislak v. Karbovanec, 2012 BCSC 666 ($60,000);
and (6) Bulatovic v. Siebert, 2013 BCSC 240 ($65,000).

[77]        
These authorities are helpful in that they serve neatly to bracket the
appropriate award in this case.  Considering all the circumstances in this
case, in my view $75,000 is a fair and reasonable award of non-pecuniary
damages. This award includes $10,000 for her loss of housekeeping capacity,
which I find should be recognized as an aspect of her non-pecuniary loss in the
circumstances of this case.

B.             
Past loss of earning capacity

[78]        
I adopt my comments regarding the legal principles relevant to the assessment
of past loss of earning capacity set out in Sendher v. Wong, 2014 BCSC 140:

[158]    The award for past loss of earning capacity is based
on the value of the work that the plaintiff would have performed but for her
accident injuries. The award is properly characterized as a loss of earning
capacity: Bradley v. Bath, 2010 BCCA 10 at paras. 31-32; Lines
v. W & D Logging Co. Ltd., 2009 BCCA 106, at para. 153; X. v.
Y., 2011 BCSC 944, at para. 185.

[159]    The plaintiff need not establish the actual loss of
earnings on a balance of probabilities. What would have happened prior to the
trial but for the accident injuries is hypothetical, just the same as what may
happen in the future, after the trial.

[160]    In Smith v. Knudsen, 2004 BCCA 613, at para. 29,
Rowles J.A. stated:

What would have happened in the past but for the injury is
no more "knowable" than what will happen in the future and therefore
it is appropriate to assess the likelihood of hypothetical and future events
rather than applying the balance of probabilities test that is applied with
respect to past actual events.

[161]    However the plaintiff must establish on a balance of
probabilities that there is a causal connection between the accident injuries
and the pecuniary loss claimed; mere speculation is insufficient: Smith v.
Knudsen para. 36; Athey, at para. 27; Perren v.
Lalari, 2010 BCCA 140, at para. 32; Falati v. Smith, 2010 BCSC
465, at para. 41, aff’d 2011 BCCA 45.

[162]    Just as in the case of the assessment of future loss
of earning capacity, in the case of past loss of earning capacity, if the
plaintiff establishes a real and substantial likelihood of the pecuniary loss
asserted, the assessment of damages to be awarded as compensation depends upon
an assessment of the degree of likelihood of the particular loss, combined with
an assessment of the value of the loss.

[163]    In cases where it is
appropriate to proceed with an assessment of the value of the loss, s. 98
of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, stipulates
that a person who suffers loss of income is only entitled to recover the net
income amount as damages: X. v. Y., at para. 187; Lines, at paras. 152-186.

[79]        
The plaintiff had a very restricted earning capacity before the
accident.  She is fluent only in Cantonese, and has very little if any English
language ability.  While in Vietnam she also studied Mandarin.  She speaks some
Vietnamese but is not fluent.

[80]        
The plaintiff left school in Vietnam after Grade 7, when she was 12 or
13 years of age.  She completed elementary school only.  She testified (through
an interpreter) that she stopped attending school due to her “family situation”
and that she did not have the “mood” to study.  Her eldest brother Uy continued
in school until he was 15, but her elder brother Phat also stopped school after
completing elementary school. According to Uy, Phat did not like school. Uy
testified that the plaintiff told him she quit school because she was afraid of
vaccinations which the school required.  Whatever the reason that she quit
school, the important point is that she has no formal education beyond Grade 7,
and has not pursued any further education, other than some ESL courses in
Canada.

[81]        
She took some ESL courses when she first arrived in Canada in 1996 at
the age of 24.  She was sponsored as an immigrant along with her brother Phat
and her parents by Uy, who came to Canada as a refugee in 1987.  The ESL
courses lasted two or three months.  She took some more ESL courses of
unspecified duration in 1997 or 1998, according to her recollection, and she
thought that she took further ESL courses on Saturdays “while she was on EI”
(which I take to mean in 2010 or 2011 before and after the accident).  But it
is apparent that the plaintiff has not done well in her English language
studies, as she does not speak English now. It is fair to say that her efforts
to learn English since coming to Canada have been very limited.

[82]        
Before she came to Canada she had never worked in outside employment,
although she worked for about three years in her parents’ home-based business
manufacturing beef jerky.  Through her mother, she developed an interest in
sewing and learned how to use a pedal operated (i.e. non-powered) sewing
machine. She learned to make simple garments such as pajamas and other
household wear.

[83]        
As noted above, the plaintiff is a very small person, standing 4’7” and
weighing about 80 pounds. Her pre-existing severe scoliosis and small stature
would have prevented her from performing work requiring very much physical size
or strength.

[84]        
After arriving in Canada she found work in a garment factory sewing T-
shirts using a somewhat specialized sewing machine called a “coverstitch”
machine.  She was paid on a piece-work basis.  She worked there for a year or
two. She then worked for about six months in another garment factory, “Ocean”,
beginning in about 1999. The pay was minimum wage, plus some benefits.  She
considered this to be better remuneration than her first job.  The work was
more interesting as well.

[85]        
From 2000 to late October 2009 she worked in a garment factory for a
company called KP Collections. She was a seamstress working on a coverstitch
machine.  The base pay was minimum wage, but she received additional pay based
on production.  The work was full time, and she sometimes worked overtime for
higher pay.  Like her prior jobs, it was a Cantonese speaking work environment.

[86]        
Unfortunately the KP Collections factory closed in October 2009 and she
was rendered unemployed. She was still looking for work when the accident
occurred ten months later on September 12, 2010.

[87]        
Vocational testing conducted for this case by Mr. Nordin showed
very weak academic skills and below average problem solving ability.  She is
best suited to work in which training is provided on the job as opposed to a
classroom setting.  Mr. Nordin testified that the pool of jobs available
to someone who does not speak English is very limited.  The vast majority of
sedentary level jobs require English.  Thus the plaintiff had very limited job
opportunities available to her before the accident. Mr. Nordin was unable
to recommend any appropriate re-training program for her.

[88]        
In summary, even prior to the accident the plaintiff’s income earning
capacity was severely limited due to a combination of her lack of English
language ability, and very limited education, vocational skills, and vocational
abilities in general.  Her best employment option was the only one she had
done, which was working as a seamstress in a garment factory where the
workplace language was Cantonese.

[89]        
The plaintiff gained her first job after the accident on September 29,
2011, more than one year post-accident. She worked for four hours inspecting
clothing in a garment factory, but found that her low back pain prevented her
from continuing.  From November 2011 to January 2012 she worked in a nail salon
and spa.  She manicured and polished customers’ nails. She testified that when
the shop got busy she was unable to take breaks to rest and stretch, and she
could not continue to tolerate the lower back and leg pain, so she was forced
to quit the job.  In late May 2012 she attempted work as a seamstress at WM
Uniform Group Inc. She was only able to work for two or three hours.  In
September 2012 she worked as a seamstress for Challenger Athletic Apparel, for
a total of six days over the course of three weeks.  Her employment was
terminated when she told her supervisor that she could only work for four hours
per day.  In late 2012 she worked as a seamstress for Scenic Fashion. She
worked part time (four hours per day) for two days.  She was asked to work
longer hours.  She attempted to do so but her job was terminated when she
advised the employer that she could not work longer hours.

[90]        
In January 2013 she obtained work with Dynasty Fashionwear, working part
time, on a coverstitch sewing machine.  She continues to work there presently,
still on a part time basis.  Her work hours are flexible. She generally works
four hours per day, for four or five days per week. Currently she works from 9
a.m. to 1 p.m. Mondays to Thursdays.  Sometimes she takes an extra day of
rest.  Occasionally she works five or six hours, when the employer asks her to
do so, and occasionally she works five days in a week.  The employer
accommodates her by allowing her to take time off as necessary. She earns in
excess of $14 per hour on a piece-work basis. It is a small company.  Her
employer, Ms. Lim, speaks Cantonese and testified at trial through an
interpreter.  The factory is very small.  The employer values her skill in
operating the coverstitch machine.  The plaintiff is the only employee who is proficient
with that machine. Her work on other machines is not as outstanding.  The
employer would give her full time work if she were capable of doing it.

[91]        
The plaintiff has not attempted full time work (that is, eight hours in
a day) while at Dynasty Fashionwear.

[92]        
Prior to the accident the plaintiff earned roughly $30,000 per annum,
working full time with some overtime, until her job at KP Collections ended at
the end of October 2009.  At Dynasty Fashionwear, she earned approximately
$11,000 in 2013 and $10,000 in 2014.  Her 2015 earnings are expected to be in
the same range, assuming she continues to work the same level of hours as she
has in the past.

[93]        
Mr. Russell McNeil carried out a functional capacity evaluation of Ms. Diep
on October 20, 2014. She demonstrated the capacity to function in activities
requiring sedentary level strength. She had restrictions in her tolerance for
sitting and standing. She was considered to be capable of working in sedentary
occupations, with some restrictions and accommodations.  She could perform some
household chores such as washing dishes, laundry, making beds or changing
linen, sweeping and dusting, but was essentially unable to vacuum, wash floors,
or clean bathrooms.

[94]        
The work of an “industrial sewer” (that is, an industrial sewing machine
operator) is classified as sedentary.  In Mr. McNeil’s view, she was
capable of working in that occupation on a part time basis, with restrictions. (Indeed,
of course, that is what she has done over the past two years since she began
working at Dynasty Fashionwear.)  She was not unable to perform any of the
critical physical demands of a sewing machine operator.  In his view she was
not capable of working full time.

[95]        
The plaintiff argues that, based upon the report of Mr. Curtis
Peever, an economist, had she continued to earn income at levels commensurate with
her earnings at KP Collections for 2006-2008, adjusted for inflation in
earnings, she could have earned $146,810 from the date of the accident to the
date of trial. This should be reduced by 13.2% for labour market contingencies
such as the risk of unemployment, to $127,498.  After deducting actual earnings
of $28,119, the plaintiff argues that compensation for past loss of earning
capacity should be $100,000.

[96]        
The defendant argues that the plaintiff would not in any event have been
employed prior to September 2011 when she obtained her first post-accident job,
at Winner Sport Wear. The defendant also argues that the plaintiff had the
capacity to work more hours than she has at Dynasty Fashionwear.  This is
essentially a failure to mitigate argument, although it was not expressed as
such.  (Failure to mitigate is pleaded in a general way, however).  Using
various assumptions as to what the plaintiff would have earned absent the
accident, and what she in fact earned, the defendant contends that the past
earning loss should be assessed at $34,500.  (There is a minor discrepancy in
the defendant’s addition, as I calculate the total based upon the submissions
as $33,600.)

[97]        
I find that the baseline numbers the defendant’s calculations rely on are
too low.  For example, the defendant contends that it would be reasonable to
assume that the plaintiff could have earned $20,000 in 2013 absent her
injuries.  This is much less than her pre-accident earnings at KP Collections. 
At that job, she earned more than average for seamstresses (somewhere in the
range of 30% more based upon the figures in Mr. Peever’s report). However
even the average earnings for seamstresses in 2013 would be $25,355 on an
unadjusted basis, according to Mr. Peever’s report.

[98]        
The defendant also argues that the plaintiff has not made reasonable
efforts to learn English in the more than 18 years since she came to Canada,
and more particularly, in the four years since the accident, and that her job
opportunities would be enhanced if she made greater efforts to learn English.  This
may be so, but in my view the plaintiff simply does not have the academic
capacity to learn English. This was an aspect of the plaintiff’s condition when
she was injured.  It can be likened to a thin skull condition, as discussed in Athey
at para. 34:

The tortfeasor must take his or
her victim as the tortfeasor finds the victim, and is therefore liable even
though the plaintiff’s losses are more dramatic than they would be for the
average person.

[99]        
In assessing the defendant’s allegation that the plaintiff had the
capacity to work more hours than she has at Dynasty Fashionwear, I adopt my
comments regarding the principles applicable to a defendant’s failure to
mitigate allegation set out in Sendher at paras. 128-130:

[128] A plaintiff has an obligation to take all reasonable
measures to reduce his or her damages, including undergoing treatment to
alleviate or cure injuries: Danicek v. Alexander Holburn Beaudin & Lang,
2010 BCSC 1111, at para. 234.

[129] The onus is on the defendant to prove that the
plaintiff acted unreasonably and that reasonable conduct would have avoided all
or a portion of his loss.

[130] Whether the plaintiff acted
reasonably is a factual question and it involves a consideration of all of the
circumstances: Gilbert v. Bottle, 2011 BCSC 1389, at para. 202.

[100]     Here, the
defendant must establish that the plaintiff could have worked more hours but
unreasonably failed to do so.

[101]     Although
there is some support in the evidence for the defendant’s position, I do not
accept that the defendant has established that the plaintiff could have worked
more hours than she actually did in the past. I have stated that the plaintiff could
make greater efforts to improve her health and function, in particular by
further active exercise and rehabilitation, and that she seems too resigned to
her present level of functioning.  Dr. Horlick’s opinion is that she could
have returned to work as a seamstress after one year from the accident date. 
In his view she now has the capacity to make greater efforts to increase her
hours of work.  I agree with that opinion. But these considerations are not sufficient
to meet the defendant’s burden to establish failure to mitigate her past loss. There
is no basis to conclude, for example, that the plaintiff has refused to follow
reasonable medical advice, which, if followed, would have improved her
condition.

[102]     On the
other hand, the plaintiff’s calculations are too high. They do not allow for
the fact that the plaintiff would not likely have worked at all until September
2011.  Given her very narrow occupational skill set, she was and remains at a
much higher than usual risk of being unemployed.  Also, her current earnings at
Dynasty Fashionwear seem to me to be more in line with the average earnings of
seamstresses than with her former earnings at KP Collections.

[103]     In my view
a fair and reasonable assessment of the plaintiff’s past loss of earning
capacity is the sum of $63,400. This sum is obtained by using Mr. Peever’s
total of $114,292 for seamstress earnings on average, and reducing that by 20%
(rather than Mr. Peever’s 13.2%) to account for unemployment and other
risks, to reflect the fact that she was unemployed and would have remained so
until September 2011, and deducting actual post-accident earnings of $28,119.

[104]     The award
must be reduced for income taxes and EI premiums, as noted by Mr. Peever
at page 21 of his report.  The parties have liberty to apply in the event that
counsel are unable to agree as to the appropriate offset.

C.             
Future loss of earning capacity

[105]    
Once again I adopt my comments regarding the relevant legal principles
in this area as set out in Sendher:

[171] The Court’s essential task 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,
at para. 32. 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, at para. 185.

[172] The appropriate means of assessment will vary from case
to case: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353; Pallos v.
Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260; Pett
v. Pett, 2009 BCCA 232.

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

[174] There are two possible approaches to assessment of loss
of future earning capacity: the “earnings approach” from Pallos and the
“capital asset approach” in Brown. Both approaches are correct and will
be more or less appropriate depending on whether the loss in question can be
quantified in a measureable way: Perren v. Lalari, 2010 BCCA 140, at para. 12.

[175] 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,
at para. 233.

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

[177] The principles that apply in assessing loss of future
earning capacity were summarized by Low J.A. in Reilly v. Lynn, 2003
BCCA 49, at para. 101:

[101] The relevant principles may be briefly summarized. 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.). The valuation of the loss of earning capacity may involve a comparison
of what the plaintiff would probably have earned but for the accident with what
he will probably earn in his injured condition: Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the end of the
inquiry; the overall fairness and reasonableness of the award must be
considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11; Ryder v.
Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task of
the Court is to assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).
Finally, since the course of future events is unknown, allowance must be made
for the contingency that the assumptions upon which the award is based may
prove to be wrong: Milina v. Bartsch, supra, at 79.

[Emphasis added.]

[106]     The
plaintiff submits that the plaintiff should be awarded an amount of damages in
the range of $425,000 to $475,000 for loss of future earning capacity.

[107]     This is
based roughly upon various possible calculations.  For example one calculation
suggested is based upon an annual loss of $23,443.  This is the difference
between what she would have earned at the earnings level she achieved at KP
Collections in 2006-08, adjusted upwards for wage inflation to $33,743 for
2016, as compared with average earnings of $10,300 in 2013-2014 for her part
time work at Dynasty Fashionwear.  To age 67, the present value of the loss is
$493,996.

[108]     A
comparison of the plaintiff’s pre- and post-accident potential future earnings based
upon Mr. Peever’s evidence yields similar results. For example, if one assumes
a 70% loss of earnings that she could have made working full time to age 70, at
the income levels she achieved at KP Collections in 2006-08, adjusted for wage
inflation, and adjusting only for what Mr. Peever termed “risk-only” labour
market contingencies (e.g. unemployment), the loss can be calculated at
$425,400, before benefits of about 4%. A loss of 60% of her earning capacity on
this same basis but including benefits would be $379,200. A loss of 60% of her
earning capacity if calculated based upon average seamstress earnings would be
$298,800, plus benefits of 4%, for a total of $310,752.

[109]     The
defendant argues that the plaintiff could return to full time work in the next
year or two, or, in a “worst-case scenario”, she could remain partially restricted
for the next ten years, earning $10,000 less than expected for the first five
years and $5,000 less than expected for the next five years. On this basis, the
defendant suggests that the loss could be in the range of $10,000 [$10,000 for
one year] to $75,000, reduced to a present value.

[110]     I find
that the plaintiff has proved there is a real and substantial possibility of a
future loss. As I have said, her prognosis is uncertain.  She continues to
suffer from her injuries four and one-half years after the accident and remains
limited to part time work in one of the few occupations reasonably available to
her given her linguistic and physical limitations. While her condition could
improve in the relatively near term with further treatment and effort on her part,
there is also a substantial risk that her condition will continue to persist
for several more years, and a substantial risk that her condition is
essentially permanent.

[111]     However, the
figures presented by the plaintiff are generally too high for several reasons.
First, the risks of unemployment faced by Ms. Diep were much higher than
average.  She was already unemployed for ten months before the accident.  As
noted she had a narrow range of job skills and she had significant pre-existing
physical limitations.  For example, if there were to be a reduction in
employment opportunities for work in a Cantonese speaking garment factory in
the Vancouver area, the plaintiff would have had very few job options.  Second,
the figures are based upon the higher than average wages she was earning at KP
Collections.  I am not satisfied that such higher than average earnings would
have continued.  Third, they are based upon pessimistic scenarios as to her
prognosis.

[112]     Taking all
the circumstances of this case into account, in my view an award of $200,000
for future loss of earning capacity is fair and reasonable. This would
represent a loss of 50% of earning capacity of average seamstresses calculated
using Mr. Peever’s report, of $258,960 ($249,000 plus 4%), reduced to
$200,000 for her increased risks of unemployment and general negative
contingencies.

D.             
Loss of housekeeping capacity

[113]     The
plaintiff claims for loss of housekeeping capacity.  She submits that an award
of $10,000 to $15,000 is reasonable.  The plaintiff relies on the evidence as
to the cost for two hours per week of homemaking assistance in order to
accomplish heavier household chores.  The current annual cost of such services
would be $2,808 according to Mr. McNeil.  (The plaintiff also claims for
an award of $82,696 for the same services under the cost of future care
heading.)

[114]     Both
parties referred to Liu v. Bains, 2015 BCSC 486 for legal principles in
this area. In that decision Justice Gray stated:

[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.

[115]    
In Rogalsky v. Harrett, 2014 BCSC 1255 I said as follows:

[69] The legal principles relating to a claim for lost
homemaking capacity were conveniently summarized by Dardi J. in X. v. Y.,
2011 BCSC 944, at paras. 246-248, as follows:

[246] In Dykeman v. Porohowski, 2010 BCCA 36, Newbury
J.A. at para. 28 summarized the governing principles with respect to
awarding damages for the loss or impairment of housekeeping capacity. She
affirmed that damages for the loss of housekeeping capacity may be awarded even
though the plaintiff has not incurred any expense because housekeeping services
were gratuitously replaced by a family member. Recovery may be allowed for both
the future loss of the ability to perform household tasks as well as for the
loss of such abilities prior to trial. The amount of compensation awarded
must be commensurate with the plaintiff’s loss: Dykeman at para. 29.

[247] In McTavish v. MacGillivray, 2000 BCCA 164, the
Court of Appeal endorsed the replacement cost approach to the valuation of lost
housekeeping capacity. Madam Justice Huddart’s comments at paras. 67-68
are instructive:

[67] … The loss of the ability to perform household tasks
requires compensation by an award measured by the value of replacement services
where evidence of that value is available.

[68] In my view, when housekeeping capacity is lost, it is
to be remunerated. When family members by their gratuitous labour replace costs
that would otherwise be incurred or themselves incur costs, their work can be
valued by a replacement cost or opportunity cost approach as the case may be.
That value provides a measure of the plaintiff’s loss.

[248] In assessing the damages on the replacement cost
approach, the court must carefully scrutinize the gratuitous services done by
the family member. A relatively minor adjustment of duties within a family will
not justify a discrete assessment of damages: Campbell v. Banman, 2009
BCCA 484 at para. 19. In Dykeman at para. 29, Madam Justice
Newbury cautioned that:

Instead, claims for gratuitous services must be carefully
scrutinized, both with respect to the nature of the services – were they simply
part of the usual ‘give and take’ between family members, or did they go ‘above
and beyond’ that level? – and with respect to causation – were the services
necessitated by the plaintiff’s injuries or would they have been provided in
any event?

[Emphasis added.]

[70] Another useful summary of
the principles applicable to assessment of damages for loss of homemaking
capacity was provided by Sigurdson J., in Ladret v. Stephens, 2013
BCSC 1999, at paras. 100-110. There, Sigurdson J. noted that such claims
are invariably difficult to assess: Ladret at para. 103.

[116]     As I have
said, the plaintiff has, for at least the time being, lost some capacity to do certain
household chores.  However, she is able to do other chores. She lives
communally with her family members, and has always done so. This can be
expected to continue.  She relies on her brother or her mother to do some of
the chores.  She could or perhaps does compensate by doing other chores. There
is very little detail in the evidence about this.

[117]     Another
consideration is that in my view there is practically no chance that the
plaintiff would pay others to do such work.

[118]     I am not
satisfied that a separate pecuniary loss is established in the evidence.  I
note that the loss to her of some of her ability to contribute to household
chores has been recognized under non-pecuniary loss.

E.             
Cost of future care and special damages

[119]     The
parties have agreed on special damages in the amount of $6,923.

[120]     The
plaintiff claims $170,128 as the cost of future care.

[121]    
In Sendher, I said as follows regarding this head of damage:

[192] The plaintiff is entitled to compensation for the cost
of future care based on what is reasonably necessary to restore her to her
pre-accident condition in so far as that is possible. The award is to be based
on what is reasonably necessary on the medical evidence to preserve and promote
the plaintiff’s mental and physical health: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.).

[193] The test for determining the appropriate award under
the heading of cost of future care is an objective one based on medical
evidence. For an award of future care: (1) there must be a
medical justification for claims for cost of future care; and (2) the claims
must be reasonable: Milina, at para. 84.

[194] Future care costs must be justified both because they
are medically necessary and they are likely to be incurred by the plaintiff. If
a plaintiff has not used a particular item or service in the past it may be
inappropriate to include its cost in a future care award: Izony v. Weidlich,
2006 BCSC 1315, at para. 74.

[195] Each case falls to be
determined on its particular facts: Gilbert, at para. 253. An
assessment of damages for cost of future care is not a precise accounting
exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9, at para. 21.

[122]     The
plaintiff’s claim is based upon various items set out in a report by Mr. McNeil.

[123]     I will
address the items separately.

1.              
Homemaking assistance – $82,696

[124]     As noted,
this claim is based upon the cost of two hours of homemaking assistance per
week, for life.

[125]     None of
the doctors have recommended homemaking assistance or stated that the plaintiff
requires such assistance.  The prognosis, while highly uncertain, certainly
does not support the need for such assistance. It must be remembered as well
that the plaintiff has been encouraged to be as active as possible and told
that physical activity will not harm her.  Household chores are shared with
family members. The plaintiff does not have heavy responsibilities in this
area. I do not accept that an award if made would be spent for this purpose. 
For these reasons I am not satisfied that the plaintiff has established a basis
for this claim.

2.              
Rehabilitation/Health Related Costs – $61,633

[126]     The
substantial claims under this heading are for exercise therapy ($2,171), a fitness
pass ($17,653), physiotherapy ($23,768), massage therapy ($15,903), and
psychology ($2,138).  None of the specialist doctors make any recommendations
for such treatments, specifically.  Dr. Horlick supports greater activity
including cardiovascular fitness and core stabilization exercise for her low
back, as well as a regular stretching program.  Dr. Hershler refers to
access to a Community Centre for use of a hot spa. At trial he testified that
the pain she suffers from is not causing injury to tissues, and he confirmed
that he encouraged her to continue working and push her tolerance for pain,
within reason.  Thus it seems he is in favour of increased physical activity,
as nearly all physicians are in soft tissue injury cases, I observe. Dr. Fuller
makes no treatment recommendations. Dr. Horlick says that he sees no need
for further use of physiotherapy, massage therapy, chiropractic treatments or
other such services.  He mentions the possibility that a cortisone injection to
her hip could be beneficial.

[127]     Dr. Kam
states that she “could require” physiotherapy and massage therapy in future to
assist with pain and muscle tightness.  However although her evidence is
somewhat in conflict, I find that the plaintiff did not find massage therapy
much help in the past. She tried only one course of massage therapy.  She has
not had physiotherapy for more than two years, although she had used such
treatment extensively in the past.  I infer that she has not recently felt that
further such treatment would be of benefit to her, or perhaps, as I said, she
has become resigned to her present level of function.  Dr. Kam says she
“might” require psychological counselling if her symptoms become more prominent
in future. He does not suggest that they will. There is no reason to so
conclude, on the evidence.

[128]     In my view
there is a basis in the evidence to found the claims for exercise and fitness
expenses, including access to the Community Centre. As I said earlier, it is
reasonable to provide for further active rehabilitation physiotherapy and
exercise therapy. In the past the plaintiff obtained active rehabilitation
physiotherapy with Mr. Wong, which was conducted at a community centre. 
In addition, there may be some need for some physiotherapy for pain management
as Dr. Kam has said.  In my view $20,000 would be reasonable for such
costs.

3.              
Medications – $16,128

[129]     The claims
are for the costs of Voltaren gel, Celebrex, and Nortriptyline, for life.  Some
allowance is justified but the evidence does not support the full amount of the
claim as the need for such medications for life is only a possibility.  In my
view an award of roughly 50% of this claim, or $8,000, is reasonable.

4.              
Other – $9,671

[130]     These
claims include such items as a Wireless TENS device ($545, based upon a purchase
every ten years) and associated gel pads, which would annually cost $215.88
($6,782 for life). None of the doctors have recommended these items. The
plaintiff gave no evidence of need or that she would use them.  It seems
unlikely to me that she would do so. Once again the need is based upon a
negative prognosis.  I have already made allowances for pain management by way
of physiotherapy and medications.  I am not satisfied that further amounts are
justified or are reasonable.  The claims for a workstation ergonomic assessment
and a saddle stool are not supported by the evidence.  Approximately $650 for
homemaking assistive devices such as a telescopic scrubber and a long handled
toilet brush is claimed. These minor expenses are reasonable in the context of
the plaintiff’s evidence that bending and kneeling prevents her from doing some
household chores.

[131]     The
parties also have liberty to apply with respect to a tax gross up for future
care costs.

V.             
SUMMARY

[132]     The
plaintiff is awarded damages as follows:

1.     Non-pecuniary
damages                   $75,000

2.     Past loss of
earning capacity             $63,400 (gross)

3.     Future
loss of earning capacity          $200,000

4.     Special
damages                              $6,923

5.     Cost of
future care                           $28,650

Total:                                               $373,973
(gross)

[133]     Subject to
matters relating to offers to settle, the plaintiff is entitled to costs.

“The Honourable Mr. Justice Verhoeven”