IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121214

Docket: M101912

Registry:
Vancouver

Between:

Qing
Hua Li also known as Qing Hua Wu

Plaintiff

And

Ceu
Hmung Lian

Defendant

Before:
The Honourable Mr. Justice Savage

Reasons for Judgment

I.        Introduction

[1]            
Qing Hua Li, also known as Qing Hua Wu (“Ms. Li”) was in a motor vehicle
accident on October 9, 2008, on Rupert Street in the city of Vancouver (the
“Accident”). The defendant Ceu Hmung Lian admits liability. Quantum is in
dispute.

[2]            
Ms. Li claims non-pecuniary damages of $80,000; special damages of $8,790.37,
much of which is for dental work; past housekeeping losses of $9,400; and the
cost of future care of $18,000.

[3]            
The defendant says that Ms. Li is not a credible witness. The defendant
says that a more appropriate award for non-pecuniary damages is $30,000-$35,000.
There should be no allowance for housekeeping losses or the cost of future care.
Special damages should not include any amount for dental work.

II.       Discussion & Analysis

[4]            
Ms. Li was the driver of a 1999 Acura which was struck by a 2005 Ford
sedan that unexpectedly turned into her path. At the time of the Accident, Ms.
Li was wearing her seat belt. The airbags in her vehicle deployed. Ms. Li
reported neck pain, low back pain, chest pain and had medical issues with her
teeth.

[5]            
It is agreed that Ms. Li suffered cervical muscle strain, back muscle
strain, an abdominal wall and chest wall injury causing pain. Ms. Lee also had
some psychological issues with depression and with respect to driving, and reported
ongoing fear of driving.

[6]            
With the exception of the dental claims, the defendant does not take
issue with these injuries being accident related, but questions the severity of
the injuries, and whether the ongoing reported back pain is related to the
accident.

A.       The Dental Injury Issue

[7]            
Ms. Lee said she had bleeding from her teeth following the Accident. In
cross-examination she was uncertain whether this occurred on the day of the
Accident or the morning after.

[8]            
Ms. Li testified that the airbags which deployed were in her face
following the Accident. The defendant takes issue with Ms. Li being struck in
the face by the airbags. The ambulance service report says that “airbag
deployed into her chest”.

[9]            
The ambulance attendant, Elizabeth Tkatchemko, was called as a witness
to confirm the statements in the ambulance service patient care report. Ms. Tkatchemko
does not speak Cantonese which is Ms. Li’s native tongue. Ms. Tkatchemko’s
notes also say “Pt was in low speed MVA, she rear-ended a car”. All parties
agree that this is incorrect.

[10]        
It is apparent that communication between the ambulance attendant and
Ms. Li were not optimal. I place little weight on these records. Ms.
Tkatchemko has no independent recollection of the statements.

[11]        
Ms. Li also gave a statement to ICBC on which she was cross-examined. The statement
was translated by Ms. Li’s daughter. It says “The airbags exploded upon impact”.
There is no reference to the airbag striking her face but the statement also
says “The sides of my ribs area (sic) slightly sore and my head is sore” and “I
am also experiencing dizziness and headaches since the accident”.

[12]        
Ms. Li saw the examining physician at Burnaby General Hospital in the
triage department, Dr. Donna Sue. Dr. Sue speaks Cantonese. There is no mention
in her notes of the patient being struck in the face by airbags or having
bleeding teeth, but there is a nurse’s triage entry indicating injury on the
right side of the neck.

[13]        
Ms. Li saw Dr. Frank Hou the next day, October 10, 2008. His notes say
“air bag activated + hit her face + teeth + chest — c/o bleeding from teeth”. This
note is probably reporting what the plaintiff said to him and not his
observations. The part of the entry concerning the activation of the airbag and
where it hit her is obviously her report to him so the “bleeding from teeth”
note is likely not an observation but a report of what Ms. Li said to him.

[14]        
Dr. Frank Hou also prepared a short form Medical Report for ICBC dated
November 24, 2008. In that report he refers to “bleeding from teeth” and
“abrasion over neck, bruise area over face”.

[15]        
I have not cited all the evidence on this point, including the expert
evidence which I have considered, however, on balance, I accept Ms. Li’s
evidence that the airbag struck her in the chest and head and resulted in
bleeding from her teeth, either the day of the Accident or the day after the
Accident.

[16]        
Two dentistry experts testified. Dr. John Hou testified for the
plaintiff. Dr. John Hou opined that Ms. Li’s existing bridge on teeth 35-37 was
loosened as a result of the Accident and had to be replaced. The work was
completed on December 18, 2008. Ms. Li then suffered spontaneous pain on tooth
47. The spontaneous pain gave rise to the removal and replacement of the existing
bridge on teeth 45-47. That work was done on January 23, 2009.

[17]        
Although some teeth were loosened as a result of the Accident, those
teeth firmed up. That is consistent with Ms. Li’s evidence. Dr. John Hou’s
recommended follow-up is consistent with ordinary dental care. In
cross-examination, Dr. John Hou acknowledged that the bridge work on teeth
35-37 and 45-47 was done in Asia and substandard compared with North American dental
work.

[18]        
Before the Accident Dr. John Hou had recommended replacement of the two
bridges but Ms. Li had other priorities. Ms. Li had cancelled appointments and
suffered some dental disease prior to the Accident. Dr. John Hou called her a
normal patient in regard to her missed appointments.

[19]        
Dr. Sujay Mehta testified for the defendant. He was critical of Dr. John
Hou’s record-keeping, although some of that criticism arose because of a lack
of understanding of where the dental records regarding periodontal care were
kept. He opined that the replacement of the bridges on the right and left
mandibular posterior quadrants were most likely not related to the Accident,
but were the result of poor oral hygiene, oral neglect and non-compliance to
oral health.

[20]        
I found Dr. Mehta’s medical-legal report sprinkled with pejorative
statements, and, in my view, bordered on advocacy. That said, Dr. Mehta also
noted that replacing the bridge work was something recommended before the
Accident which had a significant impact on his recommendations, and I agree
that is a factor to be taken into account.

[21]        
In my view the plaintiff has established, on a balance of probabilities,
that the Accident caused the loosening of the bridge work and spontaneous pain,
which precipitated the replacement of the two bridges. However, the existing
bridges were substandard and were recommended for replacement. The bridges
would likely have been replaced in the fullness of time in any event, although
there is no certainty in that.

[22]        
In the result I would allow the contested invoices for bridge work but
discount those invoices by 75%. The dental invoices submitted total $5,455.20. Of
that sum $5050.20 is associated with the bridge work. Of the dental bridge work
costs, I allow $1262.55. The balance of the claim for dental work is not
allowed and I would not allow for any ongoing dental treatment.

B.       Low back pain & Chest Pain

[23]        
Ms. Li acknowledged seeing her former family physician, Dr. Tsang, for
low back pain a few months before the Accident. Ms. Li had a short history of
back pain before the Accident. At that time she reported having back pain for
more than a month. She saw a chiropractor. Ms. Li also saw a physiotherapist on
one occasion prior to the Accident.

[24]        
Ms. Li has been reasonably consistent in reporting low back pain to her
physician, who records his visits with Ms. Li and her reported complaints in
his medical opinions dated January 16, 2011 and January 19, 2012. Those reports
do not contain any prognosis for this injury. She has continued with
physiotherapy treatments.

[25]        
The defendant cross-examined Dr. John Hou concerning treatment and
called Dr. Tsang. Dr. Tsang had treated Ms. Li in the months leading up to the
Accident. Dr. Tsang ordered some radiological tests. Her last visit to his
office did not indicate any ongoing back pain prior to the Accident. She had
some limited range of motion (“ROM”) prior to the Accident.

[26]        
The evidence discloses that Ms. Li’s ROM has improved and is better than
it was. Although she is not symptom free, Dr. John Hou recommended a personal
trainer or an active exercise and rehabilitation program. There is no long term
prognosis that her condition will not improve.

[27]        
Ms. Li makes a claim for housekeeping expenses, both past and future. There
has been no expenditure for these services as family members, including adult
children, have taken on the heavier tasks. In my view that is entirely keeping
with the ordinary division of labour within a family, and especially the
expected help of adult children in the home. I would not make any allowance for
past or ongoing household expenses.

[28]        
 In my opinion, the evidence supports the position that Ms. Li continues
to suffer low back pain attributable to the Accident. It does not support the
contention that this will be indefinite or is debilitating. The plaintiff has
made out a case that Ms. Li would benefit from a personal trainer to
provide her with an active exercise and rehabilitation program. I would allow
for such for a period of two years at $500 per year or $1000.

[29]        
Ms. Li also reported chest pain arising immediately following the
Accident. I have no doubt that she had some chest pain as a result of the
trauma directly arising from the Accident. She continues to report chest pain
but I am satisfied that the continuing chest pain at this point is related to
her non-compensable heart issues.

C.       Neck Pain

[30]        
The evidence establishes that Ms. Li’s neck pain is resolved. She had a
period of neck pain for about 2.5 years.

D.       Fear and Depression

[31]        
Ms. Li saw a psychologist on the recommendation of her physician. She
was diagnosed with depression which arose out of the Accident and complicated
her recovery. Ms. Li reported becoming more anti-social in relation to her
friends and family following the Accident. That information was confirmed by
her husband and daughter. She also had nightmares and anxiety which prevented
her from driving for about a year.

[32]        
Ms. Li was diagnosed with moderate depression in December 2009 but this
improved to mild depression in Dr. Wong’s report of April 2010. In her report
of February 15, 2012, Dr. Wong was of the view that Ms. Li’s condition is now
stable and is unlikely to change over the year. She continues to have anxiety
while driving. In Dr. Wong’s opinion, Ms. Li does not need any further
cognitive behavioral therapy but would benefit from 4-6 sessions of driving
rehabilitation focusing on defensive driving.

[33]        
No serious issue is taken with that recommendation, although the cost of
such treatment was not quantified in the evidence. Bearing in mind the
requirements of proportionality, rather than requiring the parties to adduce
evidence on the cost of such sessions, I will allow $800 for driving
rehabilitation which sum I have based on the costs of other treatment providers.

III.       Special Damages & Cost of Future Care

[34]        
From the above, I allow special damages related to dental work of $1262.55.
The balance of the special damages claimed (after deducting the dental work
costs) is $3,335.27. I would allow the chiropractic costs, physiotherapy costs,
parking costs, drug costs (less those associated with Ms. Li’s heart condition)
and one-half of the Translink costs. The parties should be able to calculate
those costs from the receipts introduced in evidence.

[35]        
I have allowed $800 for a driving rehabilitation program and $1000 for a
personal trainer to provide her with an active exercise and rehabilitation
program for her lingering back issues. These are properly described as a cost
of future care.

IV.      Non-Pecuniary Damages

[36]        
The plaintiff seeks an award that compensates her for pain and suffering
as well as her loss of enjoyment of life. Non-pecuniary damages are damages
that do not require an actual outlay of money. They cannot be calculated on a
tariff based on the injury suffered, as an individual’s loss does not
necessarily correlate with the seriousness of the injury.

[37]        
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal
conveniently enumerated an “inexhaustive list” of factors including age, the
nature of injury, severity and duration of pain, disability, emotional
suffering, loss or impairment of life, impairment of relationships, impairment
of abilities, and loss of lifestyle. It noted that a plaintiff’s stoicism ought
not generally speaking penalize a plaintiff.

[38]        
The plaintiff referred the court to cases such as Peers v. Bodkin
Leasing Corporation, 2012 BCSC 271 ($85,000); Morlan v. Barrett,
2012 BCCA 66 ($125,000); Smith v. Williams, 2011 BCSC 1806 ($75,000); Piper
v. Hassan, 2012 BCSC 189 ($50,000); and Cameron v. Hsu, 2012 BCSC 56
($40,000). These cases, it was argued, support an award of $80,000.

[39]        
The defendant referred the court to Bradley v. Groves, 2009 BCSC
1882 ($30,000); Sidhu v. Johal, 2012 BCSC 587 ($30,000); Hunter v.
Yuan, 2010 BCSC 1526 ($35,000); and Wilby v. Hyatt, 2008 BCSC 1019
($48,500). These cases, it was argued, support an award of $30,000 to $35,000.

[40]        
Bearing in mind the factors enumerated in Stapley, of the
plaintiff’s cases, Peers, Moorlan, and Smith involve more
serious injuries and more problematic sequella. In my view the defendant’s Bradley,
Sidhu and Hunter cases are less serious. In my view an award of
$45,000 is in keeping with the evidence, the effect the injuries have had on
the plaintiff, and the authorities.

V.       Summary

[41]        
The plaintiff’s action is allowed. The defendant Lian shall pay to Ms.
Li (1) non-pecuniary damages of $45,000, (2) special damages related to dental
work of $1262.55, (3) future care costs of $1800, and other special damages as
determined above.

[42]        
If there is an issue as to costs, costs may be spoken to by making
arrangements through trial scheduling.

“The Honourable Mr. Justice Savage”