IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120209

Docket: M095245

Registry:
Vancouver

Between:

Lisa York Fong
Yeung

Plaintiff

And

Deborah A.
Dowbiggin, Moe Nguyen also known as Mo Nguyen and Thi Nguyen

Defendants

– and –

Docket: M104478

Registry:
Vancouver

Between:

Lisa York Fong
Yeung

Plaintiff

And

Marco Antonio
Roces

Defendant

– and –

Docket: M114813

Registry:
Vancouver

Between:

Lisa York Fong
Yeung

Plaintiff

And

Oi Leung and Pui
Lee

Defendants

Before:
The Honourable Madam Justice Humphries

Reasons for Judgment

[1]            
Ms. Yeung, now 28 years old, seeks damages for personal injuries
suffered in four motor vehicle accidents which occurred on April 18, 2008,
April 14, 2009, May 29, 2010, and July 14, 2011.  Each accident was a rear end
collision (minor in terms of vehicle damage) and liability is admitted on all
four.  The court is not asked to apportion damages among the four accidents.

[2]            
Ms. Yeung contends that the cumulative effect and the annual recurrence of
the accidents have caused her to develop, not only soft tissue injuries, but a
major depressive disorder, even post traumatic stress syndrome, from which she
will never recover.

[3]            
The defendants do not dispute that Ms. Yeung has soft tissue injures and
some psychological symptoms which persist.  However, they say it is likely she
will recover within a reasonable period of time, and she will not suffer future
loss.

BACKGROUND AND OVERVIEW

[4]            
Ms. Yeung had a troubled school history.  Although she did extremely
well in elementary school, she had a more difficult time in high school.  She
rebelled against her traditional Chinese upbringing and had some counselling at
her parents’ instigation.

[5]            
Following her graduation from high school in 2001, she enrolled in
Langara College, intending to obtain a degree in the usual four years.  She was
put on probation and then forced to withdraw.  She went to Kwantlen College,
with the same result.  She attended Douglas College and did somewhat better. 
She transferred to Simon Fraser University in 2006.  Once again she had
difficulty and withdrew from several courses and was placed on academic
probation, but she was still enrolled there at the time of the first accident
in 2008.

[6]            
By this time, she was also working full time at the federal Ministry of
Transport (“Transport”) where she had started as a co-op student in 2005,
become a casual employee, and was made a term employee in 2007, as a clerk. 
She became a permanent employee in 2008, and is still employed there.

[7]            
Following the accidents, Ms. Yeung continued to work and to go to
school, obtaining her degree in 2010.  However, she took almost a full year off
from work, commencing in December 2009 on the recommendation of her
psychologist, Dr. Guest, supported by her family physician, Dr. Ngui.

[8]            
She returned to work in November of 2010.

[9]            
The federal government clerks are classified as CR1 to CR4.  If an
employee moves to another position, usually as a promotion, the common
classifications are “AS” or “PM”.

[10]        
Ms. Yeung is a CR4.  Early in her career at Transport, Ms. Yeung assumed
an acting position as a supervisor (AS) for 5 ½ months.  Other than a week or
two spent in acting positions since the accident, she has stayed in the CR4
clerk position until very recently.

[11]        
Mr. Deering, Regional Manager of the office in which Ms. Yeung works,
testified that after 3 – 5 years in a position, a federal employee would want
to move up.  However, upward mobility in the federal government is difficult. 
In her present position, Ms. Yeung is stuck behind a manager who is young, and
she would do best to move to another department.  If she wishes to pursue
management as a career option, she should take the appropriate courses.

[12]        
Ms. Yeung successfully applied for a transfer to another department at a
higher level of salary, as an AS1, which she was just beginning at the time of
trial.

Accident #1 – April 18, 2008

[13]        
The first accident took place on Broadway as Ms. Yeung was driving a
friend home.  She was stopped at a red light and felt the car move.  She was
not sure what had happened.  Her friend said she thought they had been hit. 
Ms. Yeung pulled over and exchanged information with the driver.  She said the
woman was rude to her and did not seem to be concerned that she had hit her. 
This upset Ms. Yeung.

[14]        
Repair costs to the paint on the bumper of her vehicle were $514.

Accident #2 – April 13, 2009

[15]        
The second accident took place on Main Street and 7^th Avenue. 
Ms. Yeung said she felt a big jolt.  She got out and walked back to the
other driver, who told her he had been drinking and asked her to wait before
calling in the accident.  Ms. Yeung obtained the relevant information from
him, called a friend to get ICBC’s number, called another friend to come to the
accident scene, called ICBC who told her to call the non-emergency number for
the police, and then called her father.

[16]        
Counsel put into evidence a recording of the police call, over the
objection of defendants’ counsel.  As the defence position was that Ms. Yeung
was not particularly upset at the accident, I allowed the recording to be
played.  However, in my view it did not support Ms. Yeung’s description of her
demeanor.  She said she was shaking and stuttering and her nerves were
completely in shot.  Her voice does show that she was upset, but her voice is
not particularly shaky and she is not stuttering.  She is coherent, organized,
and rational.

[17]        
Repair costs to the paint on the bumper of her vehicle were $767.

Accident #3 – May 29, 2010

[18]        
This accident occurred at about noon while Ms. Yeung was driving up
Kingsway to her boyfriend’s place.  Cars in front of her slowed to turn left,
and she slowed almost to a stop.  The plaintiff said she felt a big jolt or
shake “like a roller coaster coming to a stop”.  She felt that this impact was
bigger than the previous two.  She got out and exchanged information with the
other driver, who was very sympathetic and apologetic.  She drove to her
boyfriend’s house and called her father.

[19]        
Ms. Yeung said she was very upset and was crying at her boyfriend’s
house, but she managed to fulfil plans that had been made earlier to go to the
airport with a friend to meet the friend’s parents, and then went to the
friend’s house to drink.

[20]        
Repair costs were $358.

Accident #4 – July 11, 2011

[21]        
This accident occurred at the corner of Joyce and Vanness Streets, near
Ms. Yeung’s boyfriend’s apartment.  She was stopped at a red light with
other cars and was signalling to turn right, but could not turn because there
was not enough room to nudge through in the right lane.  The light turned to
green, and just as she was about to move forward, she felt a jolt on her car,
as if someone had walked behind it and hit it.  She got out of the car,
exchanged information with the other driver who told her she should have moved
as the light was green, which Ms. Yeung said she found hard to believe as
she was the one who had been hit.  The other driver urged her not to call ICBC.

[22]        
She drove to her boyfriend’s house.  She called her father, who told her
to call ICBC.  She called ICBC.  She took her dog for a short walk around the
building.  She was upset and crying when her boyfriend came home.  He made
dinner for her and they watched a movie.

[23]        
The repair cost to her bumper was $529.

Other previous accidents

[24]        
Ms. Yeung was in a motor vehicle accident in 1991 when she was 10. 
According to the medical records, she suffered neck pain for almost four years
after this accident, but she recalled little about it during her testimony. 
She was also in a very minor accident in 2001, after which she felt fatigued
and headaches for a short period of time.

EFFECT OF THE ACCIDENTS

[25]        
The plaintiff called numerous witnesses to testify to the effects of the
accidents – her sister-in-law, Ms. Kumano, her brother Chuk, her father, her
Regional Manager, Mr. Deering, her supervisor and co-worker, Ms. Wuo, a friend,
Ms. Pana, and her boyfriend, Mr. Charlston.

[26]        
She also called Mr. Webb (massage therapist), Dr. Van Rijn
(physiatrist), Dr. O’Shaughnessy (psychiatrist), Andrew Hosking and Curtis
Wong (physiotherapists), Dr. Ngui (family doctor), Dr. Robinson (neurologist),
Dr. Jung (chiropractor), Diana Robertson (occupational therapist), Dr.
Guest (psychologist).

[27]        
Since the plaintiff was one of the last witnesses called and was in the
courtroom very rarely prior to her testimony, it was difficult to assess the
evidence about the effects of the accidents as I listened to the various
witnesses.  I had no idea who the plaintiff was, had no sense of her, and had
heard no evidence about the accidents as I listened to all these witnesses.  I
do not know if this was a tactical decision or whether it was necessitated by
schedules, but it meant the evidence I heard was all without context.

Witnesses from work

[28]        
Ms. Wuo, who worked with Ms. Yeung before and after the accidents, said Ms.
Yeung was a fresh face in the government office.  She was willing to work and
did not put things off; she was a “go-getter.”  She was bubbly, friendly and
always happy to help.

[29]        
Ms. Wuo was seconded out of the office for a three year acting position
and when she came back in August 2010, she worked with Ms. Yeung when Ms. Yeung
returned to work after the absence taken on her psychologist’s advice.  Ms. Yeung
returned to work in November of 2010.  Ms. Wuo had had some contact with her in
the meantime and knew the idea of returning to work was causing Ms. Yeung great
anxiety.

[30]        
Ms. Wuo knew of Ms. Yeung’s accidents.  In fact, Ms. Yeung had dropped
Ms. Wuo off earlier on the day of the second accident and called her later to
tell her of the accident.

[31]        
Ms. Wuo says Ms. Yeung has noticeable physical issues now – she holds
her left arm, and cannot even reach for or hold a coffee cup.  She cannot climb
stairs.  She cannot lift files.  Her attendance and punctuality are not good.

[32]        
Ms. Wuo says Ms. Yeung seems very black emotionally and will not respond
to cheerful talk.  Ms. Wuo finds Ms. Yeung difficult to hang out with.

[33]        
On cross examination, Ms. Wuo said Ms. Yeung remained professional at
work, despite her difficulties.  She works as a receptionist and is required to
greet people who enter the office.  She maintains a pleasant manner.

[34]        
Mr. Deering, who is the Regional Manager of the office Ms. Yeung works
in, testified that Ms. Yeung was a very good knowledgeable employee before the
accidents.  She was technically gifted and set up cell and Blackberry systems
for the office.  She was bubbly and energetic and socialized regularly with the
members of the office.

[35]        
Mr. Deering was out of the downtown office for some time during the
Olympics, and has recently returned.  He has noted changes in Ms. Yeung.  He says
she has days when she appears to exhibit stiffness and seems more subdued. 
Other days she is more energetic but she seems older and more withdrawn
overall.  He says she is definitely better than she was after the second
accident, and attributes the improvement to her boyfriend and her dog.

Friends and family

[36]        
Ms. Yeung’s family and friends all described her, pre-accidents, as an
active, bubbly, energetic person who was a help around the home for her
parents, something that was expected of her as the daughter.  She particularly
enjoyed playing with her two young nephews.

[37]        
A recurring theme in the evidence of many witnesses was that Ms. Yeung
is sad that she can no longer roughhouse with her young nephews, and that they
enjoy playing with Mr. Charlston more than with her.  She used to play with
them four years ago, when they were 1 and 4 years old.  Now they are 8 and 5. 
They are bigger, rougher, and of course enjoy playing rough games with a young
man.  Nevertheless, Ms. Yeung used to be able to roughhouse herself.  Now she
can do these things for short periods only.

[38]        
According to the witnesses from the plaintiff’s family, a fairly
significant event occurred during a recent family trip to China when Ms. Yeung
had to turn back as the rest of the family, including her parents, were
climbing the Great Wall of China.  Ms. Yeung said she went half way but was too
sore to continue.  She went back down, shopped for souvenirs, and waited for
the others to return, which they did in 45 minutes or so.

[39]        
The witnesses from Ms. Yeung’s family described her, after the
accidents, as withdrawn, anti-social, and without friends.  However it is clear
from Ms. Yeung’s own evidence that she continued to socialize and go clubbing with
her friends after the accidents.  She began to drink quite heavily, something
she blames on the accidents.  She met her boyfriend, Mr. Charlston, in the late
summer of 2009, after the second accident, when she was out clubbing and
drinking.  He found her to be bubbly, funny, sarcastic, and instantly felt they
had a bond.

[40]        
Mr. Charlston said the “honeymoon period” of the relationship ended in
November of 2009 when he moved out of his parents’ house and into an apartment
of his own.  Ms. Yeung continued to live with her parents, but spent a great
deal of time at his place.  He said there were “hot button” topics such as
driving or sports that would cause her to yell at him and threaten to kill
herself.  She had difficulty sleeping and would ask him to massage her
shoulder.  Before the third accident she was able to help with cooking, and was
more physically active.  They went on several trips together, although her
physical activities were limited.

[41]        
Mr. Charlston said Ms. Yeung had headaches and was depressed after the
third accident but began to get better and had more energy.  She seemed
happier, and after a counselling session with Dr. Guest would be very upbeat. 
She would be willing to talk about anything and would joke and laugh for a day,
before returning to irritability.

[42]        
Mr. Charlston testified that prior to the fourth accident, Ms. Yeung was
able to do some physical activities and help around the apartment.  She still
had trouble sleeping and would hunch her shoulder when walking.  After the
fourth accident she felt defeated.  However, their dog has helped her become
motivated to walk, which they do often.  She has also begun lifting weights
again.

[43]        
Mr. Charlston testified that despite the difficult behaviour he has to
contend with, Ms. Yeung would always put on a good front around others.  He
says he loves everything about Ms. Yeung, even the bad things, and has changed
his behaviour to avoid triggering her anger and threats of suicide.

[44]        
Ms. Yeung and Mr. Charlston moved into an apartment together in the fall
of 2011.  He does most of the housework, she does some of the lighter work. 
She continues to favour her shoulder, and her sleep is troubled.  He feels she
is getting better emotionally because he knows how to support her.

Ms. Yeung

[45]        
Ms. Yeung was taken through the effects of each accident sequentially,
and in meticulous detail.

[46]        
Ms. Yeung said she was working full time and attending school full time
prior to the accidents.  She was proud of that and pleased that it got her
parents “off her case”.  She had been taught to be a “people pleaser” and knew
her brothers thought she was a whiner.  She acknowledged that she would sulk
over particular issues but said was not generally depressed, although she had
had some mood and rebellion issues as a teenager.

[47]        
Ms. Yeung said did not have a big group of friends, but she had good
friends.  She enjoyed working out and trying various sports.  She liked to go
clubbing.

[48]        
Ms. Yeung testified that at the time of the first accident (April 14,
2008), she had planned to graduate from SFU within a year, finishing up by
2009.  In five years she would get her MBA.  She hoped to become a manager in
the government, but was not limiting her options to the public service.  She
said she was anxious to find a boyfriend, and had hoped, before the first
accident, to find her “true love” within a year.

[49]        
After the first accident, Ms. Yeung said she had a stiff neck and a sore
shoulder.  She also experienced headaches and tingling down her left arm.  She
had some back, hip and leg pain.

[50]        
She was assured that she would get better quickly because she was young but
as the summer wore on and she did not feel better, she began to be depressed
and anxious.  She took time off work or came in late.  She had difficulty doing
some of the tasks at work such as taking identification pictures and
fingerprints, and felt her co-workers were not sympathetic to her.

[51]        
Ms. Yeung enrolled in courses at SFU for the summer term but withdrew
early.  She enrolled in more courses for the fall of 2008 and finished them with
difficulty.  She enrolled in two courses for the spring term of 2009 but could
not focus on them.  She was allowed to withdraw under extenuating circumstances
but did not get her tuition back.

[52]        
She stopped her physical activities, but tried to continue some social
contact.  She went on some short trips but did not enjoy them.

[53]        
She could no longer do all the housework her parents expected her to do.

[54]        
Ms. Yeung took the KARP rehabilitation program and thought it helped. 
Massage and physiotherapy also helped.  She took a lot of medications for pain as
well as an anti-depressant.

[55]        
By the time of the second accident (April 14, 2009) she testified she was
still getting headaches, neck pain back pain and shoulder pain.  Her hips and
leg were better.  She was anxious about driving.

[56]        
The second accident increased her headaches, neck and shoulder pain. 
She developed pain in her ribs as well.  She took two or three days off work,
and went to her doctor.  Her symptoms got worse over the next few months.

[57]        
Ms. Yeung continued to go clubbing with her friends during the summer of
2009, and was drinking heavily.  She wore high heels which would cause her back
to be painful.  She met Mr. Charlston at a club in August of 2009.  She said she
stopped the heavy drinking with her friends after she met him.  Although she
described their relationship as passionate and absorbing, she also said she was
really depressed and sad all the time.  She was unable to participate in the
active lifestyle Mr. Charlston enjoyed.  She had difficulty sleeping and would
have nightmares.

[58]        
By November of 2009, when Mr. Charlston moved out of his parents place
and into his own place, Ms. Yeung said she found it difficult to maintain a
facade of everything being okay.  She took things out on Mr. Charlston and
started fights.  She knows he has made a big effort to change to accommodate
her behaviour.  She says she realized she took advantage of his easy going
nature and felt bad about it.

[59]        
Ms. Yeung said their sex life was very good for some time, but then it
died down after Mr. Charlston moved into his own apartment.  She blamed it
partly on being unable to sustain the initial level of intimacy and partly on
the pain in her shoulder and on fatigue.

[60]        
Ms. Yeung said she took quite a bit of time off work in 2009, or would
come in late.  She felt her co-workers were talking about her and were angry
with her.  Dr. Guest recommended that she go on disability so she left
work in December of 2009 and returned in November of 2010 on a gradual basis.

[61]        
By the time of the third accident, (May 29, 2010), Ms. Yeung said her
rib pain was gone.  She still had frequent headaches, neck and left shoulder
pain.  Her upper back was a bit better; her mid back was still sore.  However
she felt she was making progress.  Her sleep was better.

[62]        
After the third accident, Ms. Yeung felt she had been set back to the
beginning and her right shoulder also hurt, which aggravated her headaches.  She
contacted Dr. Guest who sent her an email, and this comforted her to some
extent.

[63]        
She did anxiety exercises and received a lot of support from Mr.
Charlston and Dr. Guest.

[64]        
Ms. Yeung decided to buy a bigger car.  She had been driving a Yaris at
the time of the first three accidents, but she no longer felt safe in it and
wanted something bigger and higher.  She bought a Toyota RAV 4.

[65]        
Ms. Yeung went on some trips with Mr. Charlston, although she found the
car trip stressful and could not do much physical activity.  She was able to
relax and enjoy herself occasionally.

[66]        
She was able to do some light housework and help her mother, but not to
the extent she had prior to the accidents.

[67]        
She was able to complete her degree while she was off work, graduating
in June of 2010.

[68]        
Ms. Yeung still had headaches and sore shoulders, and these increased to
some extent with the fourth accident (July 11, 2011).  Her lower back started
hurting but has improved.  She now has headaches three or four times a week and
takes Tylenol.  She still has shoulder and neck pain and difficulty sleeping.  She
has a lot of anxiety although the mediation and exercises help control it.  She
does not feel as depressed, but she does feel sad.  She wants to have children
but worries about whether she could cope with a pregnancy and a small child. 
She is anxious driving.

[69]        
Ms. Yeung says the quality of her work is good but she is not up to the
pre-accident level.  However, she has recently obtained a new position and
knows her new boss is supportive.  She hopes to do a good job, build up a good
reputation for herself and see if she can move up in the government.  She
appreciates the stability of a government job and feels the private sector
might be too much for her.  She is not sure if she has the capacity for an MBA,
but wants to obtain a project management certificate.

[70]        
Ms. Yeung says she has lost many of her friends as a result of the
accident, for instance Ms. Pana, who testified that Ms. Yeung was difficult to
be around after the second accident and drained her energy.  However,
Ms. Yeung testified that she stopped seeing some of her friends, including
Ms. Pana, because they drank heavily and she stopped the heavy drinking after
she met her boyfriend.  Ms. Yeung herself dropped one of her friends who
also had some health problems because she found it too stressful to be with
her.

[71]        
Ms. Yeung said she must repay the disability funds she obtained from Sun
Life while she was off work.  The work funded treatments from Dr. Guest were
paid directly to the doctor.  Some of this is a result of her extended health
insurance for which she paid the premiums, but Ms. Yeung was not sure what was
generally available as part of the collective agreement and what she had paid
for.

[72]        
In cross-examination, Ms. Yeung acknowledged two earlier accidents – one
when she was 10.  Dr. Ngui’s records indicated that she had complained of
headaches for 3 ½ years after that accident.

[73]        
Ms. Yeung agreed she was not taking counselling or having massage or
physiotherapy at the time she met Mr. Charlston in the late summer of 2009. 
She was working full time, until she began seeing Dr. Guest who immediately
recommended she go off work in December of 2009.

[74]        
Ms. Yeung attended the Olympics celebrations in downtown Vancouver in
February of 2010 and lined up for various events and locations, at one point
standing in line for several hours to wait for a hockey game.

[75]        
Ms. Yeung agreed that her employment records showed that she had taken
more time off in the six weeks prior to the first accident than in the six
weeks after it.  Although she took some time off work in early 2011, almost
none of it was related to the accident.

[76]        
Ms. Yeung acknowledged that she felt she was improving after each
accident, and then would suffer a set back with the next accident.

[77]        
Dr. Ngui prescribed an anti-depressant for Ms. Yeung in May of 2010.  Ms. Yeung
says she takes an anti-depressant daily and Tylenol as she needs to.  The
prescription records for Ms. Yeung’s anti-depressant medications show few prescriptions
being purchased.  Ms. Yeung says she relies on samples from her doctor.

EXPERT EVIDENCE

[78]        
Ms. Yeung has received extensive physical treatment for her injuries –
physiotherapy, KARP programs, massage, chiropractic.  Most of the evidence is
unremarkable and the defendants do not take issue with it.  The main dispute is
over the evidence and opinions of Dr. Cheryl Guest, Ms. Yeung’s psychologist.

[79]        
I will refer first to the evidence of the physical symptoms referred to
by the various doctors and physiotherapists.

[80]        
According to Dr. Robinson, a neurologist, who wrote his report before
the fourth accident, Ms. Yeung may have some improvement over the next 3- 5
years, but is at risk of persisting headaches, neck and shoulder pain
indefinitely.

[81]        
Dr. Van Rijn, physiatrist, who saw Ms. Yeung before the third accident,
suggested the need for further examination of her left shoulder.  However, in
his opinion, the main reason Ms. Yeung was off work when he saw her in March of
2010 was because of psychological and mood symptoms.  He said it is difficult
to separate psychological and physical symptoms in cases of chronic pain, but
if her mood improved she should be able to return to work, and indeed she has
done so.

[82]        
Dr. Ngui, Ms. Yeung’s family physician, saw her many times.  Sometimes
she exhibited some improvement; sometimes she was worse.  He prescribed an
anti-depressant in May of 2010, and recommended massage, yoga, and aqua-fit
classes.  Dr. Ngui said Ms. Yeung recovered from her 1991 accident in about 4
years.

[83]        
Dr. Ngui expected Ms. Yeung to get better from the first two accidents,
and he felt she handled the third accident well, based on what she told him. 
At the time of the fourth accident, she was partially but not fully recovered. 
He said the fact she is now working shows some improvement, but it is slow.  He
suggested another active rehabilitation program.

[84]        
Dr. Jung, a chiropractor, said he did not expect a full recovery since
Ms. Yeung’s pain is chronic – that is it has lasted longer than two
years.  He agreed that, given the recurrence of accidents, Ms. Yeung has never
had a 2 year period in which to allow full recovery.  However, each accident
adds to the existing symptoms, so he was unable to agree completely with the
proposition that Ms. Yeung could recover completely in time.

[85]        
Mr. Hoskings, a physiotherapist who saw Ms. Yeung once in June of 2010
but did not treat her, and Mr. Curtis, Ms. Yeung’s treating physiotherapist at
various times from 2008 to 2010, testified.  Mr. Hoskings recommended “hands
on” and active therapies with a specialized physiotherapist.  Mr. Curtis said
he did primarily passive “hands on” therapies.  Ms. Yeung had decreased range
of motion in her spine and left shoulder.  Mr. Curtis noted a small amount of
improvement over the course of treatment.  He was not aware that Ms. Yeung was
attending KARP rehabilitation during some of the times she stopped coming to
physiotherapy.

[86]        
I will now turn to the evidence of the psychologist, Dr. Guest, and
psychiatrists, Dr. O’Shaughnessy and Dr. Levin.

[87]        
Ms. Yeung availed herself of the counselling provided through her
workplace in December 2009.  She did not find the first counsellor particularly
helpful but she liked the second one, Dr. Guest, and continued her sessions
with her, paying for them herself, after the work-funded program ended in
February 2010.  Dr. Guest has treated Ms. Yeung with a variety of empathetic
therapies aimed at helping her deal with depression and anxiety.

[88]        
In December of 2009, shortly after beginning to see Ms. Yeung, Dr. Guest
recommended that Ms. Yeung take time off work.  Dr. Ngui, Ms. Yeung’s
family doctor, agreed, following Dr. Guest’s recommendation.

[89]        
Dr. Guest assessed Ms. Yeung for post traumatic stress syndrome.  Dr. Guest
determined that Ms. Yeung met the DSM 4 criteria for chronic post traumatic
stress order.  Dr. Guest was under the impression that Ms. Yeung perceived
the accidents to be threatening, physically, mentally and emotionally.  She
said Ms. Yeung told her she felt her life was in danger during the first
accident, that she felt helpless and terrified.  This is not borne out by Ms.
Yeung’s account of the accidents, although she was upset that the first and fourth
drivers were rather rude to her and did not seem to be concerned about the
accidents.

[90]        
Dr. Guest said Ms. Yeung was more resilient by the time of the third and
fourth accidents and coped with them much better than the first two because she
now has the support of her boyfriend, her dog, her family, and her treating
caregivers, including Dr. Guest herself.  As well, Dr. Guest said the last two
defendant drivers’ responses were not as dismissive as the first two (although
Ms. Yeung’s own evidence is that the fourth driver was not sympathetic).  She
says Ms. Yeung knows how to manage her pain and her anxiety now.  It is
Dr. Guest’s aim to improve her functioning.  While her condition can be
exacerbated by additional stresses, it could also improve partially, even
fully.  For now, according to Dr. Guest, her pain disorder is decreasing and
her PTSD is in full remission.

[91]        
Dr. O’Shaughnessy, who examined the plaintiff at her own request, did
not support the diagnosis of post traumatic stress disorder, although he said
Ms. Yeung displayed some of the symptoms of the condition.  He was of the
opinion that Ms. Yeung suffered from anxiety and some symptoms of
depression, as well as a pain disorder.  All three are interconnected, and her
depression is controlled by medication.  At the time he first saw Ms. Yeung in
October of 2010, she had been involved in two accidents.  Most of her symptoms
were in remission.

[92]        
Dr. Levin, who examined Ms. Yeung at the request of the defendants, was
adamant that Dr. Guest had misdiagnosed Ms. Yeung, and that a diagnosis of PTSD
was inappropriate.  He was prepared to agree that Ms. Yeung has anxiety, but
felt her condition was mild and was not disabling.  She is able to work, she
has built a relationship with her boyfriend, she socializes with friends, she
travels, she has motivation, and her school marks went up since the accidents. 
Dr. Levin was of the opinion Ms. Yeung’s symptoms and psychological problems
will persist, can be controlled completely by medication, and pre-existed the
accident.  He based that opinion on his assumption that not only did Ms. Yeung
have behavioural and emotional abnormalities in her teenage years, but that
there was a fairly serious family history of psychiatric problems.

[93]        
In actual fact, there is no family history of psychiatric problems, and
this lessens the weight to be given to Dr. Levin’s opinion that Ms. Yeung’s
problems pre-existed the accident.  This confusion arose because of sample
information contained on one of the forms Ms. Yeung was asked to fill in.

[94]        
Dr. O’Shaughnessy provided a rebuttal report in which he disagreed with
Dr. Levin’s comments on depression, pain disorder, and the necessity to
consider whether malingering might be a factor.  In this report, Dr.
O’Shaughnessy said he might support a diagnosis of PTSD because Ms. Yeung was
stressed to the point of being disorganized after the accidents and the criteria
for PTSD are expected to change in the new edition of the diagnostic manual,
soon to be released.

[95]        
Both Dr. O’Shaughnessy and Dr. Levin referred to the type of experience
that is commonly associated with PTSD under the current criteria, for instance
soldiers in battle, or victims of rape.

[96]        
Dr. Guest and Dr. O’Shaughnessy seem to be under the misapprehension
that Ms. Yeung was traumatized at the time of the accidents, and feared for her
life.  Dr. O’Shaughnessy said she was stressed to the point of being
disorganized.

[97]        
First, this does not accord with Ms. Yeung’s description of the
accidents or her reactions to them.  Second, the audiotape of her calls after
the second accident, show her to be coherent, well-organized, rational, and in
control of herself.  She was obviously upset but was able to function fully.

[98]        
Dr. Guest ultimately agreed, rather reluctantly, that if Ms. Yeung did
not perceive her life to be in danger at the time of the accidents, and did not
feel terrified, that she did not meet the current diagnostic criteria for PTSD.

[99]        
There seems to be no dispute that Ms. Yeung has depression and anxiety,
although Dr. Levin was of the opinion that even the symptoms of depression were
not severe enough to be diagnosed as an actual disorder.  In his opinion, she
has a mild condition that still allows her to function.

[100]     While
there are deficiencies in Dr. Levin’s opinion, I accept his statement that Ms.
Yeung’s symptoms are being exaggerated out of proportion, although I do not
necessarily say that is being done by Ms. Yeung herself.  She is being portrayed
as a person so damaged by PTSD, depression and anxiety and so in need of
constant care that she is and will continue to be permanently disabled and in
need of constant care.  Ms. Yeung herself said she did not think she could cope
without Dr. Guest’s constant counselling.

[101]     Dr. Levin
referred to the possibility of secondary gain – that is having this condition
brings Ms. Yeung a great deal of attention and assistance from her family and
boyfriend.  Ms. Yeung is certainly receiving a great deal of empathetic
counselling and behavioural therapy through Dr. Guest.  Her father and
boyfriend cater to her emotional needs to a considerable degree.

[102]     In his
testimony, Dr. O’Shaugnessy referred to Ms. Yeung as emotionally young for her
age, having led a sheltered and protected life.  Ms. Yeung’s mannerisms and
speech patterns, during her evidence, varied from those of an adult to those of
a young girl, depending on what she was recounting.  She is frustrated with her
lack of progress and the continued set-backs she has experienced through the
sequential accidents.  However, she is obviously intelligent and is capable of
exhibiting objective self-perception.  She has the self-awareness to know that
she has behaved with great immaturity at times and she is grateful for her
boyfriend’s tolerance and support.  According to the evidence, particularly of
Mr. Charlston, she has a sense of humour.

[103]     Taking
into consideration all of the evidence and the opinions of these three doctors,
I do not accept that Ms. Yeung has post traumatic stress disorder, although she
apparently has some symptoms of it.  I accept that she has a mild condition of
depression and anxiety caused by these accidents, and that it did not, in any
significant fashion, pre-date the accidents.

DAMAGES

The significance of other previous accidents

[104]     The
defendants took the position that the court could consider any residual effects
from Ms. Yeung’s accidents from 1991 and 2001 since they were tortious events,
and if any present symptoms can be attributed to it, these defendants should
not be responsible for that portion of the damages.

[105]     This issue
arose out of one remark by Dr. O’Shaughnessy during his testimony.  He
said the plaintiff had told him she had had no previous accidents.  He said it
was speculative to talk about them because he had not talked to Ms. Yeung
about them, but it stands to reason that her previous accidents made her
vulnerable to anxiety and depression.  However, she had done well and pulled
herself together by her late teens.  Absent something else happening she may
never have experienced a disorder.

[106]     There were
many factors that Dr. O’Shaughnessy said led to Ms. Yeung’s vulnerability.
She is emotionally young for her age, she has led a sheltered protected life. 
Prior trauma could also play a part.  He said it was speculative to consider
those prior accidents because he didn’t talk to her about them.  It was just
common sense that all these many factors would contribute to her vulnerability.

[107]     As this
issue came up only in testimony, not in a report, counsel asked to submit cases
on it after submissions were concluded.  They have done so.  The defendants
rely on Blackwater v. Plint, 2005 SCC 58, which reasserts the
proposition from Athey v. Leonatti, [1996] 3 S.C.R. 458, that
the defendant need not put the plaintiff in a better position than her original
position and should not compensate the plaintiff for any damages she would have
suffered anyway.  Counsel for the defendants suggested that the court could find
that the earlier tortious events played a role in Ms. Yeung’s present symptoms
and apportion a small amount of the damages to those events.

[108]     The
plaintiff also relies on Athey and the examination of that case by the
Court of Appeal in Bradley v. Groves, 2010 BCCA 361, at paras. 32 – 37.

[109]     I agree
with the plaintiff that there is insufficient evidence to lead to an issue of
apportionment of damages relating to damages from accidents 17 and 7 years
prior to the first of those before the court now.  The plaintiff herself had
little recollection of the events surrounding the 1991 accident, which occurred
when she was 10 years old.  She also had almost no recollection of the 2001
accident.

[110]     Dr.
O’Shaughnessy’s remark supports an inference that the plaintiff was more vulnerable
than the average person arising from a number of factors, but not that she was
still suffering emotional effects from those previous accidents.  His remark
may have been based on what he considered to be common sense, but it was not
based on any clinical examination or findings.  There is no evidentiary basis
upon which I could find that there should be an apportionment of damages in
relation to the effects of the earlier accidents.

Non pecuniary damages:

[111]     The
plaintiff says she was a healthy happy vigorous individual prior to the
accidents.  Now all aspects of her life have been interfered with.  Her career
options have been circumscribed.  She has physical limitations and emotional
deficits which show little sign of improvement and may be permanent.  She seeks
non-pecuniary damages in the amount of $110,000.

[112]     The cases
contained in the plaintiff’s book of authorities on the issue of general
damages, although not referred to in argument, are Ashcroft v. Dhaliwal,
2007 BCSC 533 ($120,000); Felix v. Hearne, 2011 BCSC 1236 ($200,000); Fox
v. Danis, 2005 BCSC 102 ($100,000); MacKenzie v. Rogalasky, 2011
BCSC 54 ($100,000); Maillet v. Rosenau, 2006 BCSC 10 ($110,000); Prince-Wright
v. Coperman, 2005 BCSC 1306 ($100,000); Reimer v. Cultus Lake Waterpark
Ltd. 2008 BCSC 1577 ($105,000); and Tsalamandris v. MacDonald, 2011
BCSC 1138 ($100,000).

[113]     The
defendants say the four accidents were minor; Ms. Yeung took several years to
recover from a previous motor vehicle accident when she was 10 years old and
had many similar symptoms.  The fourth accident was only a few months ago.  If
a period of time passes in which she is accident free, she should be able to
recover to a large degree.

[114]     Counsel
submits damages should be in the range of $65,000 to $85,000 and cites a number
of other cases: Wahl v. Sidhu, 2010 BCSC 1466 ($65,000); Van Den
Hemel v. Kugathasan, 2010 BCSC 1264 ($75,000); Cripps v. Overend,
2010 BCSC 1779 ($75,000); Perry v. Perry, 2011 BCSC 432 (85,000).

[115]     According
to the evidence of Ms. Yeung, her family, and her co workers, she is not the
same person she was before the accident.  She is unable to do simple physical
tasks if it involves her left shoulder, she has very little stamina, and has
lost the general good pain-free health she enjoyed before the accident.  She cannot
participate in the physical activities that are important to her boyfriend. 
She has emotional difficulties, depression, and feels frustrated at her
condition and her failure to recover fully.

[116]     On the
other hand, Ms. Yeung does function fairly well.  She works and performs her
functions in a professional manner.  She drives.  She socializes.  She
travels.  In the fall of 2009, after two accidents, she met her boyfriend and
built a relationship with him.  By her own description, they had a very
passionate relationship that seemed to abate somewhat when he moved away from
his parents’ house into his own place.  As well, the pain in her arm or
shoulder caused some difficulty.

[117]     Despite
Mr. Charlston’s descriptions of Ms. Yeung as an extremely difficult person to spend
time with, she moved out of her parents’ house and they moved into their own
place together a few months ago.

[118]     I accept
that Ms. Yeung’s quality of life has been altered by the accidents.  The
evidence of her family, friends and co-workers is all consistent.  However, in
some respect they paint a bleaker picture of her life than does Ms. Yeung
herself.  Her evidence and that of Mr. Charlston is more helpful because they
have knowledge of her day to day functioning and limitations.  She has been
more active and involved in more things than her family is aware of.

[119]     Ms. Yeung
is, as Dr. O’Shaughnessy said, vulnerable and emotionally young for her age,
but I also accept that there is validity to Dr. Levin’s concern that she has
some secondary gain from the devoted attention of her father, her boyfriend and
Dr. Guest.

[120]     However, it
is extremely unfortunate that Ms. Yeung has suffered a series of accidents and
that her recovery has been set back regularly and incrementally as a result. 
Even a strong person would have difficulty dealing with a steady recurrence of
similar accidents.  The effect of four sequential accidents is, according to
the medical experts, cumulative, and each time she begins to start to improve
and return to a better level of functioning, she has been hit again, which
causes a regression in her improvement with an overall cumulative effect on her
life.  While the physical symptoms are not extreme, they are still persisting
and the psychological effect of the repeated events has seriously affected Ms.
Yeung’s ability to enjoy life for a protracted period of time.  While it is
likely she will continue to improve if she is fortunate enough not to be involved
in more accidents, she has already spent four years in a state of turmoil and
physical pain.

[121]     Several of
the cases referred to by the plaintiff are concerned with injuries with effects
that are described as severe and devastating; in one case the plaintiff was
competitively unemployable, in another the plaintiff could no longer work at
the profession he had trained for.  In my view, the cases submitted by the
defendant are of more assistance.  Considering all the evidence within the
context of the cases referred to me, and considering that Ms. Yeung has
undergone the effects of four accidents, I set non-pecuniary damages at $85,000.

Past wage loss

[122]     Ms. Yeung
says she has suffered past wage loss because she has not moved beyond a CR4
level and has not been able to take advantage of acting positions, as she could
before the accident.  She has not applied for available jobs if they involve
travel or lifting.  She prefers a job in which she does not have to work with a
team.

[123]     As well,
she was off work from December 2009 to November 2010, with a gradual return to
full time work by February 2011.

[124]     The
federal government keeps fairly detailed attendance and leave records, with reasons
for the leave recorded.

[125]     The total wage
loss asserted by the plaintiff, including the subrogated disability benefits
claims, is $48,240.  This figure was arrived at by Mr. Benning, the
economist, who looked at her work records and added up what looked to him like
accident related leave.

[126]     The
defendants point out that the plaintiff took off more time for personal reasons
prior to the first accident than she did after, and she took much more time off
after the accident for personal reasons than reasons related to the accident.

[127]     The
defendants have taken the plaintiff’s leave reports and totalled the time indicated
as “leave without pay” after the accidents: just over 40 weeks.  This includes
the time Ms. Yeung was attending school instead of working.  They used the
salary she was making during the time she took the largest period of “leave
without pay” – $45,620 per year – and arrived at a figure of $35,281.82.  They calculated
the loss net of EI premiums and income tax, applying a discount of 12.7% for
tax.  The result is $30,774.84.

[128]     The
reasons for the differences between Mr. Benning’s figure and that arrived at by
the defendants was not canvassed in cross examination or in argument.  The
defendants’ calculations are clearly explained with relation to the records,
but ten months off work, together with the other shorter periods and the
graduated return to work should result in more than $35,000.  Rough
calculations put the figure at around $40,000.

[129]     There is
still the issue of whether Ms. Yeung was prevented from earning additional income
because she was unable to take acting positions or apply for other jobs.  Mr.
Deering said Ms. Yeung missed the opportunity to take management courses during
the months she was away from work.  He thought a federal government employee
should stay in a position 3 – 5 years before moving positions.  A lateral move
would give the employee broader experience.

[130]     In that
respect, I consider that Ms. Wuo, who has had acting positions from time to
time which paid the same rate as a CR 4 but allowed her to gain more
experience, remains a CR 4.  Ms. Wuo’s 10 month acting position was at the
same level of pay as her regular position, although her three year secondment
may have been at a higher level.  Ms. Wuo completed her degree in the usual
four years, worked for some time in the private sector and joined Transport in
2001.

[131]     Ms. Yeung
on the other hand, took many extra years to complete her degree, even aside
from the year’s delay occasioned by the accidents.

[132]     As well,
Ms. Yeung has followed the expected path for lateral moves outlined by Mr.
Deering: she is moving to another position in another department four years
after obtaining a permanent job in Transport.

[133]     The one
acting position Ms. Yeung did acquire arose out of particular circumstances in
which her supervisor was promoted and there was a vacancy.  She had to
supervise a part time casual employee and a co-op student, for about half a
year, at an annual salary of approximately $8,000 more than her CR 4 level.  There
was no evidence of any other acting positions that were given to other
employees over Ms. Yeung, or what additional remuneration might have been
available as a result, but given the evidence of Ms. Wuo and the acting
position Ms. Yeung was given in 2007, there is a substantial likelihood that
she would have been able to fill other acting positions at some point since
2008.  In the absence of any better evidence, I would set this loss at $4,000,
which is the approximate amount she earned in her previous acting position.

[134]     I do
accept that Ms. Yeung was unable to apply for all the jobs that she would have
been eligible for because she does not wish to take positions that would compel
her to work with other people, but I am unable to conclude that she was forced to
forego promotions or increased pay levels because of the accident.  There is no
evidence from which to draw the conclusion that the jobs she did not apply for
would have resulted in increased pay or promotion.  Her inability to work at
all jobs that were previously open to her is more appropriately considered
within the context of loss of future earning capacity.

[135]     In the
absence of assistance to determine why the figures of Mr. Benning and the
defendants differ, I set the past loss at $40,000, with the addition of $4,000
for loss of the opportunity to take acting positions.

[136]     This loss
is gross and has to be adjusted for tax ramifications.  If counsel are unable
to agree on the figure, they may arrange to speak to it.

Future wage loss

[137]     The
plaintiff says she has suffered a significant impairment to her future earning
capacity.  Whereas she had thought of obtaining an MBA and going into the
private sector, she is now not likely to have those options open to her.

[138]     The
plaintiff provided a report from an economist, Mr. Benning, in which her future
loss was calculated to be $256,570, based on certain assumptions.

[139]     As a base
line, he assumed Ms. Yeung’s present salary would never increase until
retirement.  Then he assumed that Ms. Yeung would make the average earnings of
a woman with a business degree, with earnings increasing every year to
retirement.  He subtracted the base line scenario from the assumed scenario and
arrived at the figure relied on by the plaintiff.

[140]     The
defendants say the nature of Mr. Bennings’ assumptions mean his report is not
helpful.  Ms. Yeung’s salary has already gone up so it is not helpful to base a
report on the assumption that it will never increase.  There is also no
evidence, other than a vague statement by Ms. Yeung that she was keeping her
career options open, that she would not have continued to work for the
government.  Although she testified that she had planned to get an MBA, she
demonstrated no aptitude for business in her courses and did poorly.  She has
almost no business experience (she spent one co-op term working for a retail
car rental store).  She has never been a good student.  By the time of the
first accident, she had already put in eight years towards obtaining her
Bachelor’s degree.

[141]     In terms
of government advancement, the defendants point to Ms. Wuo’s evidence.  Ms.
Wuo got her business degree in 4 years, has worked for Transport Canada for 10
years and is still a CR-4, although she has had various acting positions.  Ms.
Yeung has been moved to a permanent AS 1 position 4 ½ years after getting her
first permanent position.

[142]     The
defendants say Ms. Yeung has not proven a real and substantial possibility of
future income loss.  Her functional limitations do not limit her in her present
job; her employment is secure.  Future treatment and natural healing are
expected to improve her condition.

[143]     I do not
accept that Ms. Yeung has proven a substantial possibility of loss on the basis
that she would have obtained an MBA but for the accidents.  However, while her
physical limitations may decrease with the passage of time, assuming she can
remain accident free and continue to improve, Ms. Yeung’s physical limitations
and emotional vulnerability arising from the series of accidents still present
a substantial likelihood of some loss in the future.  This is because, despite
her secure job, she avoids applying for jobs that require travel or working
with people and thus foregoes the wider experience from lateral moves which Mr.
Deering said is useful for future advancement in the government.  Thus there is
a substantial possibility that she may not be able to advance as quickly as a
person who has no limitations.

[144]     In
assessing that loss, the approach set out in Brown v. Golaiy, (1985), 26
B.C.L.R. (3d) 353 (S.C.) is appropriate.  She is less capable overall from
earning income from all types of employment, she is less marketable as an
employee, she has lost the ability to take advantage of all job opportunities
that would have been available to her but for the injuries suffered in the
accidents, and she is less valuable to herself as a person capable of earning
income in a competitive labour market.

[145]     I set the
loss of the capital asset of her earning capacity at $45,000.

Cost of future care

[146]     The
plaintiff seeks an award for the cost of future care in the amount of $199,683,
based on the report submitted by the occupational therapist, Diana Robertson.  The
final figure is a result of the application of future cost of care multipliers
provided by Mr. Benning, calculated over Ms. Yeung’s lifetime.

[147]     Ms.
Robertson did a functional capacity evaluation.  She did not assess the need
for future care; she merely collected all the recommendations from various
other professionals and provided costs for them: that is, counselling (Dr.
Guest), medication (Dr. Guest), physiotherapy, kinesiology, massage and
chiropractic (Dr. Jung, Dr. Robinson, Mr. Hosking, Dr. Van Rijn),
injection therapy (Dr. Jung), and home assistance (Dr. Van Rijn).  She provided
no opinion on the reasonableness of any of the projected costs.

[148]     The
plaintiff did not address in argument any individual items in terms of the test
of medical justification and reasonableness.  With respect, I find no medical
or evidentiary support for the assumption these costs will continue over Ms. Yeung’s
lifetime.  Each of the medical professionals set out specific treatment
recommendations and durations.

[149]     The
defendants have taken the actual treatments recommended by the experts,
multiplied them by the amounts given by Ms. Robertson, and come up a range of
$4,500 to $8,000.  This would cover six weeks of physiotherapy, with monitoring
by a kinesiologist for six months, then every three months for a year (Mr. Hosking);
two to four sessions per week for six to eight weeks with a physiotherapist or
kinesiologist, massage and chiropractic (Dr. Jung); counselling twice a month
for six to twelve months, with medication (Dr. Guest); counselling for six to
nine months with antidepressant medications (Dr. O’Shaughnessy).

[150]     The
defendants did not factor in the cost of massage treatment because Ms. Yeung
had already stopped receiving massage due to the expense, although she said she
felt some relief from it.  Dr. Ngui told her she would have to wean herself off
it, and she testified on discovery that the doctors told her she needed active
therapy and massage was taking up too much time.  Dr. Jung recommended that Ms.
Yeung have two or three chiropractic appointments ($40 to $60 per visit) but
there is no evidence that she had any interest in pursuing this recommendation. 
Dr. Jung also recommended that Ms. Yeung consult with medical experts to
see if spinal injections would be of assistance.  There was no further evidence
provided in respect of this suggestion.

[151]     Given the plaintiff’s
dependence on Dr. Guest, some flexibility in the duration of counselling is
reasonable in order to ensure she can continue to improve her ability to
function on her own.  Dr. Guest suggests counselling for a year, with some
allowance for future sessions if required due to major life stressors. 
However, she does not suggest regular counselling should continue to the end of
Ms. Yeung’s life.

[152]     Considering
all of this evidence, and allowing for medications and some additional
counselling sessions in the future, I set the cost of future care at $10,000.

Special damages

[153]     There were
no specific arguments addressed to any difficulties with subrogated claims or
reimbursement, but if there are issues remaining, counsel can address them
through the registry.

[154]     Evidence
of special damages consisted of lists of treatment dates presumably prepared in
counsel’s office.  The defendants take issue with claims for treatments for
which there is neither a receipt nor a clinical record.  Ms. Yeung went through
the pages of listed treatments and put checks beside dates for which she had no
receipt but which showed up in the clinical records of the various treatment
providers.

[155]     The
defendants agree Ms. Yeung should be reimbursed for items for which she has
supplied receipts.  They dispute items for which there is no receipt or
clinical record of treatment ($2,038), for transportation costs to treatment
($186) because the calculation is based on travel from Ms. Yeung’s home, when
she often went to treatment from her office downtown, and costs for the courses
that Ms. Yeung dropped.

[156]     I do not
view the lack of receipt as fatal to a claim for reimbursement of the cost of treatment.
However, if there is no receipt and no clinical record of the treatment and if
Ms. Yeung did not specifically remember it, there is no evidence that any treatment
was received on that date.  Claims that are supported neither by receipt nor a
clinical record are not allowed.  The defendants say this amount is $2,038.  I
assume this is correct, but if counsel cannot agree on the calculation, they
may arrange to speak to it.

[157]     Ms. Yeung
claims fees for classes she dropped in the spring of 2009.  The defendants say
she dropped many classes before the accidents, and also could have dropped the
courses earlier for $50 or $100, but instead left them until later, incurring
increased costs.  As well, she was drinking fairly heavily at that time. 
However, according to Ms. Yeung, she wanted to continue the courses but was
prevented from doing so because of the pain, especially after working all day.  I
accept that she was prevented from completing the courses because of symptoms
arising from the accidents.  She should recover the costs of tuition and her
text book for the two courses – that is a total of $1,600.

[158]     Ms. Yeung
admitted that she went to doctor’s visits on her way to or from work.  I
therefore reduce the mileage claimed to $100 to account for doctor’s visits
that occurred as part of her regular work travel.

Housekeeping/in trust claim

[159]     Ms. Yeung
says she has received services from her parents and Mr. Charlston –
personal care and household assistance – that would otherwise have been losses
to her.  She seeks $5,000 for compensation for these services.

[160]     The
defendants say Ms. Yeung was able to take care of her own needs while she lived
with her parents.  She then moved in with Mr. Charlston in 2011 and she now
shares household tasks with him.  None of the services provided to her by her
parents or Mr. Charlston extend beyond what would reasonably be expected.

[161]     Mr.
Charlston testified that he has to do all the cleaning, after working all day. 
Ms. Yeung can help with the cooking and can fold laundry.  It is clear she
cannot yet share equally in the household tasks.  If she were living on her
own, she would not be able to do the heavy housework.  Since the two live in an
apartment those tasks are not particularly onerous at present, but Mr.
Charlston should not have to do it all on his own.

[162]     Ms.
Robinson and Dr. Van Rijn anticipated the need for some household assistance
for Ms. Yeung.  No figures were provided.  The thrust of the medical reports as
a whole is that Ms. Yeung is expected to improve in function in the next year,
with the continued availability of therapies.  I would allow $1,200 for
assistance with heavy housekeeping services while Ms. Yeung continues to
improve.

Failure to mitigate

[163]     The
defendants say Ms. Yeung did not attend aqua-fit classes as recommended by Dr.
Ngui (Ms. Yeung does not like the water and does not swim); as well she has not
taken her anti-depressant pills as directed, shown by not filling prescriptions
regularly.  Either she is not doing what she should to assist her in managing
her depression or it isn’t as serious as she contends it is.  As well, while on
her medication, she was drinking heavily.  Large amounts of alcohol act as a
depressant.

[164]     The onus
is on the defendants to prove both that the plaintiff acted unreasonably in
failing to follow treatment recommendations, and the extent to which damages
would have been reduced had the plaintiff acted reasonably (Chiu v. Chiu,
2002 BCCA 618).

[165]     There is
insufficient evidence to conclude that the absence of aqua-fit attendance made
any difference to Ms. Yeung’s recovery.

[166]     Obviously,
Ms. Yeung should take the pills prescribed by her doctor.  She says she has
taken the pills – she says she relied on samples given to her by Dr. Ngui
which is why she has filled so few prescriptions.  Dr. O’Shaughnessy found her
depression to be in remission, which he attributed to medication.  Dr. Van Rijn
said alcohol can be a depressant in large doses, but it is not unusual for
people with chronic pain to drink more than usual.  There is insufficient
evidence to conclude that Ms. Yeung is not taking the pills, or that their
effect was counteracted by alcohol.

[167]     I find
that the defendants have not proven a failure to mitigate on the part of Ms.
Yeung.

Result

[168]     Accordingly,
I award the following amounts:

[169]    
Unless there is a reason to speak to costs, the plaintiff will have her
costs at Scale B.

“M.A.
Humphries J.”
The Honourable Madam Justice M.A. Humphries