IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120307

Docket: M110052

Registry: Vancouver

Between:

Mi Ra Lee

Plaintiff

And:

Milton Dueck

Defendant

Before: The Honourable Madam Justice
Gray

Oral Reasons for Judgment

[1]            
THE COURT: Ms. Lee is a homemaker who
lives with her husband and two children. The children are eight and six years
of age.

[2]            
On November 30,
2009, Ms. Lee was driving her sister‑in‑law’s van on Highway 1
near the border of New Westminster and Coquitlam, B.C., and was near the
Brunette exit. She was stopped and awaiting an opportunity to merge into
traffic. The defendant, Mr. Dueck, was driving a Volvo immediately behind
the van, and the Volvo struck the van from the rear. Mr. Dueck admitted
liability for the accident.

[3]            
Ms. Lee’s
claim for damages proceeded to a trial under the fast track rule and the trial
lasted about a day and a half. Ms. Lee testified with the assistance of a
Korean‑English interpreter. She claims a short period of problems with
her left ankle and a continuing but intermittent problem with her right wrist. She
seeks non‑pecuniary damages of $40,000, special damages of about $800,
and $500 for cost of future care. She does not claim past or future wage loss.

[4]            
The position of
the defence is that the injuries were so minor that they did not have any
impact of any significance, and that Ms. Lee failed to mitigate any
damages. The position of the defence is that the award should be modest to
reflect the minor nature of the injuries.

[5]            
I am grateful to
counsel for their focused presentation of the case and for providing me with
relevant case authorities. That enabled me to give oral reasons a few hours
after the completion of the trial. Following the usual practice of this court,
if these oral reasons for judgment are ordered to be transcribed, I will do any
necessary editing, but the result will not change.

[6]            
I will briefly set
out the facts. Ms. Lee graduated from university in South Korea after four
years of study in the field of archaeology. For a period of time, she worked in
marketing for a health food company. Ms. Lee and her husband immigrated to
Canada in 2006, about six years ago. After that, Ms. Lee did not work
outside the home until after the accident.

[7]            
Ms. Lee’s
primary recreational interests were cooking for her family and taking
photographs in her spare time. She also volunteered at her church, including
doing volunteer food preparation. She did not have any problems with her right
arm or left ankle before the accident. She was studying English.

[8]            
The accident occurred
on Friday, November 30, 2009, at around 4:00 p.m. At the time of the accident,
there were two adults and five children in the van. The children were in the
back seats, and among the children were Ms. Lee’s two children, who were
then about six and four years old. Ms. Lee’s sister‑in‑law was
in the front passenger seat. Ms. Lee was holding the steering wheel. Her
body was turned slightly to the left, because she was looking to her left for
an opportunity to merge into traffic.

[9]            
Mr. Dueck
stopped his Volvo a few feet behind the van. When he thought Ms. Lee was
about to merge, Mr. Dueck drove forward, but the van was still stationary.
The front of Mr. Dueck’s Volvo struck the back of the van. Ms. Lee
felt the impact and felt her body move and her back press against the back of
her seat.

[10]        
Mr. Dueck
estimated his speed at the time of impact to be about five kilometres an hour. He
felt the impact to be like a bump or nudge. His wife’s purse was on the Volvo’s
back seat and did not fall to the floor.

[11]        
This was the first
accident Ms. Lee had experienced. She was about 37 years old. She was very
concerned about the welfare of the children in the van. Her primary memory of
how she felt the day of the accident is that she was shocked and her heart was
racing. She did not notice any pain.

[12]        
Ms. Lee and Mr. Dueck
moved their vehicles to a safe spot. Mr. Dueck learned that Ms. Lee’s
sister‑in‑law owned the van and he exchanged information with her. Nobody
called the police or an ambulance. No one went to hospital after the collision.
The only evidence about the damage to the vehicles was to the effect that it
was minor. Mr. Dueck has not had the damage to his Volvo repaired.

[13]        
The next day,
December 1, 2009, Ms. Lee awoke with pain in her right arm and left ankle.
The pain was at her right elbow and wrist, and she felt no power in her hand
and fingers and had trouble gripping. She went to a walk‑in clinic. The
doctor suggested that she rest, and that if she continued to have pain, that
she return.

[14]        
On December 2,
2009, Ms. Lee continued to feel pain in her right arm and left ankle, and
she returned to the walk‑in clinic. The doctor she had seen the day
before was not available, so she saw a second doctor. That second doctor
referred Ms. Lee for physiotherapy, prescribed braces for her wrist and
ankle, and prescribed medication. Ms. Lee was not sent then or at any time
for x‑rays or other imaging studies of her wrist or ankle.

[15]        
For about 10 days
after the accident, Ms. Lee tried to simplify her cooking and to clean the
home less completely to avoid straining her wrist. Ms. Lee used the prescribed
braces. She wore the ankle brace for about a week and noted significant
improvement. By about 10 days after the accident, her left ankle was completely
healed. Ms. Lee wore the wrist brace for part of the day on most days for
about a month. She found the wrist brace uncomfortable when she was doing
housework, so she would take it off and try to use her other hand.

[16]        
Ms. Lee took
the prescribed medication for a few days. She discontinued it, both because she
did not think it made her feel better and because it made her sleepy.

[17]        
Ms. Lee went
to two physiotherapy appointments in the first week of December. She did not
think the physiotherapy helped, although after seeing the records she agreed that
she found the pain had reduced after the first treatment. Since roughly a month
after the accident, Ms. Lee has continued to prepare food at her church,
but she now obtains help from others to avoid triggering her right arm
symptoms, such as by getting help with heavy lifting.

[18]        
Ms. Lee had
four acupuncture treatments in February 2010 at a clinic in Langley. This was
not prescribed or recommended by a doctor. Ms. Lee thought the acupuncture
improved her wrist significantly. The acupuncturist suggested that she exercise
her wrist, and Ms. Lee figured out some exercises and did them on her own.
The acupuncturist recommended further treatment, but Ms. Lee and her
family moved to Port Moody in February 2010, and Ms. Lee did not know a
suitable acupuncture clinic there.

[19]        
Ms. Lee found
a massage therapy clinic in Port Moody. Ms. Lee did not think the wrist
was completely relieved and she had four massage therapy treatments in the
period of June and July 2010. The therapist treated her back, not her wrist in particular.
Ms. Lee stopped the massage because she thought that she was better.

[20]        
By the summer of
2010, Ms. Lee thought that her right arm symptoms had settled down. She
did not have any symptoms after that until June 2011, when she tried operating
an espresso machine. At that point, it appears that her symptoms were short
bursts of pain.

[21]        
In October 2011, Ms. Lee
started working out of the home, cooking Korean food. She worked for a
business, two days a week, five hours a day. The work included a lot of cutting
on a cutting board, and after continuous work, she felt pain in her wrist.

[22]        
Ms. Lee saw Dr. Le
Nobel, physiatrist, on November 8, 2011, at the request of Ms. Lee’s
lawyer. Ms. Lee told Dr. Le Nobel that she only gets right wrist pain
if she is cleaning or lifting things, that when she gets the pain it only lasts
a second or two, and that she is not sure that the wrist pain was caused by the
accident.

[23]        
Ms. Lee
stopped working at the job cooking Korean food in January 2012, after about two
and a half months of work.

[24]        
At the time of
trial, Ms. Lee was 39 years old. Usually she does not notice any problem
with her right wrist. She no longer uses the wrist protector. She may feel pain
if she cuts a lot of food or lifts heavy objects. She tries to avoid doing
those things. The pain comes and goes, and she is not sure that it is related
to the accident.

[25]        
Ms. Lee’s
counsel called the evidence of Dr. Le Nobel. He is an expert in physical
medicine and rehabilitation, which is a discipline often called physiatry. Dr. Le
Nobel found that Ms. Lee’s complaints were in keeping with an injury to
the right wrist triangular fibrocartilage, although he did not find anything on
physical examination which either confirmed or excluded that injury.

[26]        
Dr. Le Nobel
performed a number of physical tests on Ms. Lee and none of them resulted
in complaints of pain. Under cross-examination, Dr. Le Nobel testified
that it was atypical, but consistent with an injury to the right wrist
triangular fibrocartilage for there to have been a period of about a year
without symptoms. In other words, based on the history from Ms. Lee,
including the complaint of sudden and brief onset of pain, Dr. Le Nobel
diagnosed a possible injury to the right wrist triangular fibrocartilage. He
suggested a further imaging study. In his opinion, the symptoms are chronic.

[27]        
In Dr. Le
Nobel’s opinion, recurrence of left ankle pain or of right shoulder blade pain
on account of Ms. Lee’s injuries in the accident would be unusual. Dr. Le Nobel
found that Ms. Lee had increased ligamentous laxity in her joints, and in
his opinion such patients are at increased risk for more severe musculoskeletal
consequences from physical trauma. He thought she would not have developed the
symptoms she has absent the accident.

[28]        
Dr. Le Nobel
wrote in his report that Ms. Lee’s treatments have been appropriate, but
she has not been fully treated. He wrote that it was uncertain if she would
have made further recovery if she had continued treatment for a longer time.

[29]        
Under
cross-examination, Dr. Le Nobel agreed that in order for physiotherapy to
be effective, more than two sessions are required, and probably usually 36
sessions over a three‑month period. He agreed that physiotherapy
treatment closer in time to the injury would be preferable to years after the
precipitating event. He also testified that the optimal timing for further
physiotherapy would be either following surgery, if further investigation
confirmed the possible diagnosis and suggested surgery, or if further
investigation did not confirm the possible diagnosis, then at that time to try
to get Ms. Lee using her hands more.

[30]        
Under redirect
examination, Dr. Le Nobel testified that physiotherapy might improve Ms. Lee’s
strength, but it might also cause more inflammation and pain.

[31]        
Under
cross-examination, Dr. Le Nobel did not explain how massage could have
assisted Ms. Lee’s wrist problem. He testified that, it “might not be an
unreasonable thing to do." He also testifed that he has not prescribed
acupuncture for similar wrist problems.

[32]        
Dr. Le Nobel
wrote that if Ms. Lee were required to lift frequently in the 20‑pound
range, her limitations arising from the accident put her at risk of failure. In
cross-examination, he referred to her problem as like a leaky roof that will
not be a problem when it does not rain, suggesting that Ms. Lee’s wrist
problem will not become apparent without heavy lifting or repeated twisting.

[33]        
Depending on the
results of further imaging studies, Dr. Le Nobel might recommend further
treatment. He thought that strengthening exercises would be appropriate, and
that she would benefit from several months of physiotherapy focused on her
wrist and hand and right arm injuries.

[34]        
Ms. Lee was a
straightforward witness who did not exaggerate. She was quick to acknowledge facts
which reduce her claim, such as the quick healing of her left ankle problems. The
defence did not challenge her credibility. I accept Ms. Lee’s evidence in
its entirety. I also accept Dr. Le Nobel’s evidence.

[35]        
In summary, Ms. Lee
suffered minor soft tissue injuries in the accident. It was a relatively low
velocity accident, but in Dr. Le Nobel’s opinion, Ms. Lee was at
increased risk for more severe musculoskeletal consequences from physical
trauma because she had increased ligamentous laxity in her joints. I accept
that she suffered the injuries she has described. While she did not know
whether her continuing problems were the result of the accident, I accept Dr. Le
Nobel’s opinion that the injuries were likely caused by the accident.

[36]        
Ms. Lee
suffered pain in her left ankle which resolved after about 10 days. She
suffered pain in her right wrist which gradually improved and was gone by about
seven months after the accident, except for flares of pain. The injuries caused
her to substantially modify her cooking and housework for less than a month
after the accident. She was a homemaker and her substantial modification to her
work in the home was similar to a person who would take a couple of weeks
entirely off work, and then gradually increase work.

[37]        
Since the
accident, Ms. Lee has modified her activities to avoid heavy lifting and
repeated twisting. Ms. Lee was essentially pain-free for about a year from
the summer of 2010 to the summer of 2011, and after that she has suffered
minor, brief flare‑ups of pain with heavy lifting or frequent use of her
wrist. She does not have pain or limitation of function on a daily basis. She
is at risk for future flares of pain.

[38]        
I turn first to
the question of mitigation. The defence argued that Ms. Lee failed to
mitigate her losses and that her award should be reduced to reflect that. The
defence argued that Ms. Lee should have continued with the physiotherapy
prescribed by her doctor. There was no evidence that the doctor recommended a
specific number of physiotherapy sessions.

[39]        
The defence bears
a heavy burden in establishing a reduction in damages on the basis of failure
to mitigate. The applicable law is well summarized in Fox v. Danis, 2005
BCSC 102, at paragraphs 35 to 37, affirmed at 2006 BCCA 324, and I will read in
those three short paragraphs:

[35]      There
is no dispute that every plaintiff has a duty to mitigate his/her damages, and
that the burden of proving a failure to fulfil that duty rests with the
defendant, the standard of proof being the balance of probabilities: Janiak
v. Ippolito, [1985] 1 S.C.R. 146.

[36]      In
this case, the Defendant submits that the Plaintiff failed to mitigate her loss
in that she failed to exercise as recommended by her family doctor.

[37]      To
succeed in proving these submissions, the Defendants must establish, on the
balance of probabilities, that the Plaintiff failed to undertake this
recommended treatment; that by following that recommended treatment she could
have overcome or could in the future overcome the problems; and that her
refusal to take that treatment was unreasonable: Janiak v. Ippolito, supra
and Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.).

[40]        
Ms. Lee had a
duty to mitigate her damages. She only attended two sessions of physiotherapy. However,
Dr. Le Nobel’s opinion was that it was uncertain if Ms. Lee would
have made further recovery if she had continued treatment for a longer time. The
defence has failed to establish, on the balance of probabilities, that by
following the recommended treatment, Ms. Lee could have overcome or could
in the future overcome the problems.

[41]        
As a result, there
will not be any deduction from Ms. Lee’s award on the basis of failure to
mitigate.

[42]        
I turn next to the
award for non‑pecuniary damages. Ms. Lee’s counsel, Mr. Bauer,
relied on Cameron v. Hsu, 2012 BCSC 56, in which Madam Justice Hyslop
awarded $40,000 for non‑pecuniary damages.

[43]        
Ms. Hong for
the defence referred to the decision of the Court of Appeal in Stapley v.
Hejslet, 2006 BCCA 34, in respect of the general principles regarding non‑pecuniary
damages. Paragraphs 45 and 46 are as follows:

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

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

[Emphasis added.]

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

(a)        age
of the plaintiff; 

(b)        nature
of the injury; 

(c)        severity
and duration of pain; 

(d)        disability; 

(e)        emotional
suffering; and 

(f)         loss
or impairment of life; 

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

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

(h)        impairment
of physical and mental abilities;

(i)         loss
of lifestyle; and

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

[44]        
The defence relied
on the awards made in four cases for non‑pecuniary damages: Saluja v.
Wise, 2007 BCSC 706, in which Madam Justice Loo awarded $3,500 for such
damages; Brar v. Kaur, 2010 BCSC 1220, in which Mr. Justice
Truscott awarded $4,000 for such damages; Vuong v. Wong, 2007 BCPC 172,
in which Provincial Court Judge Yee awarded $2,000 for such damages; and McLachlan
v. Hamon, 2001 BCSC 778, in which Mr. Justice Burnyeat awarded $3,500
for such damages regarding one of the accidents.

[45]        
No two cases are
identical. Cameron is the case cited by Ms. Lee’s counsel in which
$40,000 was awarded for non‑pecuniary damages. In that case, Mr. Cameron
attended 13 physiotherapy treatments in the months after the accident and was
prescribed anti‑inflammatory drugs. Mr. Cameron had further
physiotherapy treatments for a few months in early 2010, which was about one
and a half years after the accident, and again in late 2010 through early 2011,
which was about two and a half years after the accident.

[46]        
An examining
doctor found reduced range of motion in Mr. Cameron’s neck and weakness in
his right hand on an examination which was two and a half years after the
accident and about nine months before the trial. Mr. Cameron had
complained of headaches which had resolved.

[47]        
Madam Justice
Hyslop found that Mr. Cameron had difficulty with his neck and shoulder
when doing office work and when not working on site and in good weather. Mr. Cameron’s
complaints include continuing restrictions on his range of motion and other
problems, and in general his complaints are more significant than Ms. Lee’s. 

[48]        
I turn now to the
cases cited by the defence. In Saluja, Madam Justice Loo awarded $3,500
for a wrist injury which had significantly improved within a month, generally
resolved after three months, after which Ms. Saluja had occasional pain. In
Brar, Mr. Justice Truscott awarded $4,000 for non‑pecuniary
damages for an injury that resolved five or six months after the accident. In Vuong,
Judge Yee awarded $2,000 for neck pain that resolved two months after the
accident. In McLachlan, Mr. Justice Burnyeat awarded $3,500 for an
injury that lasted several months.

[49]        
Ms. Lee’s
complaints are of relatively minor pain, or at least pain that does not last
very long. She continued to seek treatment for about seven months after the
accident. She has modified her activities to avoid triggering the pain. The
modifications have not had a significant impact on her activities. She has had
some flares of pain and is at risk for further flares.

[50]        
The cases cited by
the defence are more similar to Ms. Lee’s circumstances than the Cameron
case, although Ms. Lee’s wrist injury did not resolve for a longer
period than it took for the injuries to resolve in any of the cases cited by
the defence.

[51]        
In this case, Ms. Lee
was 37 at the time of the injuries. The ankle resolved after about 10 days, and
the wrist substantially resolved after about seven months. Ms. Lee has
been left with chronic intermittent short‑lived pain, which is triggered
by heavy lifting and repeated twisting, but which she is able to avoid by
modifying her activities to avoid those actions. This has not significantly
affected her ability to work as a homemaker or in work or other activities that
she is likely to pursue.

[52]        
In all the
circumstances, a fair award for Ms. Lee’s non‑pecuniary damages is
$5,000.

[53]        
Ms. Lee seeks
$794.11 for her special damages. The defence accepted that Ms. Lee spent
that amount on treatment; however, the defence argued that Ms. Lee should
not recover the $210 she claims for acupuncture treatments or the $384.30 she
claims for massage therapy, because the treatments were not prescribed by a
doctor. Ms. Lee found the acupuncture treatments very helpful and the
massage somewhat helpful.

[54]        
A defendant should
only be required to pay for treatments that were reasonably necessary and were
a result of the injuries. Dr. Le Nobel considered that Ms. Lee’s
treatments had been appropriate, and he was aware of the acupuncture and
massage therapy treatments. The defence argued that it was inconsistent for Dr. Le
Nobel to give the opinion that acupuncture was an appropriate treatment when he
has not prescribed that treatment for such an injury and when he was now
recommending further investigation and physiotherapy. I do not accept that
argument. There are many possible modalities of treatment, and Dr. Le
Nobel is entitled to conclude that a certain treatment was reasonable, even if
might not be his first choice of treatment now.

[55]        
In this case, the
acupuncture apparently significantly assisted Ms. Lee’s wrist problem. As
a result, Ms. Lee is entitled to the full amount of her claim for
acupuncture.

[56]        
I have more
difficulty with Ms. Lee’s claim for massage therapy. While Dr. Le
Nobel said that it may not have been unreasonable, he could not explain how the
treatment would have helped Ms. Lee’s wrist. Ms. Lee may have felt
generally better after the massage treatment, but that does not establish that
it was required reasonably by her injuries. Ms. Lee bears the burden of
establishing that the massage expense was reasonably required as a result of
the accident and she has not established that. As a result, I am deducting
$384.30 from Ms. Lee’s claim for special damages.

[57]        
Ms. Lee is
entitled to $409.81 for special damages.

[58]        
Ms. Lee
claims $500 for future care costs and the defence accepts that. It is based on Dr. Le
Nobel’s recommendation for physiotherapy by specialists in the wrist.

[59]        
In summary, Ms. Lee
is entitled to non‑pecuniary damages of $5,000, special damages of
$409.81, and future care costs of $500, for a total award of $5,909.81.

[60]        
Is there any
submission on costs?

[61]        
MR. BAUER: 
No, there isn’t.

[62]        
MS. HONG:  No,
My Lady.

[63]        
THE COURT:  All
right. Is there anything else then?

[64]        
MR. BAUER: 
No, there isn’t.

[65]        
THE COURT:  No? 
All right. Thank you, counsel.

“Gray J.”

_________________________________

The Honourable Madam
Justice Gray