IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130328

Docket: M111839

Registry:
Vancouver

Between:

Sun Mee Bae

Plaintiff

And

Ricardo Vasquez

Defendant

Before:
The Honourable Madam Justice Baker

Reasons for Judgment

[1]            
On April 13, 2010, the 2001 Toyota Corolla sedan driven by Ms. Bae was
struck from behind by the 2002 Toyota Sienna van driven by the defendant, Mr. Vasquez. 
The plaintiff suffered soft tissue injuries to her neck, shoulders and lower
back and is seeking non-pecuniary damages, special damages and damages for loss
or impairment of the capacity to do housework.  The defendant admits his
negligence caused the collision but he disputes the nature, severity and
duration of the injuries that the plaintiff alleges; and the quantum of damages
claimed.

FACTS

[2]            
On April 13, 2010, Ms. Bae was driving her Toyota Corolla on Broadway
Avenue in Vancouver.  The evidence does not indicate whether she was westbound
or eastbound.  She was alone in her vehicle.  She had come to a stop at the
intersection of Broadway Avenue and Windsor Street and was waiting to make a
left turn onto Windsor.  She was wearing her lap and shoulder belt, had her
foot on the brake pedal, and was facing forward.

[3]            
Mr. Vasquez was also driving on Broadway Avenue, heading in the same
direction as Ms. Bae and in the same lane.  The front of his vehicle struck the
rear of Ms. Bae’s vehicle.

[4]            
In their testimony at trial, Ms. Bae and Mr. Vasquez gave quite
different accounts of the amount of force involved in the impact.  Mr. Vasquez
testified that he was driving behind Ms. Bae’s vehicle.  He saw that the Toyota
Corolla had stopped and so he also brought his vehicle to a stop.  He testified
that after his vehicle had come to a complete stop, his foot slipped off the
brake pedal and his vehicle moved forward and the front bumper of his vehicle
struck the rear bumper of Ms. Bae’s vehicle.  Mr. Vasquez testified he
immediately put his foot back on the brake pedal.  He estimated the speed of
his vehicle prior to the collision to be 5 kph.  He described the impact
between his vehicle and that of Ms. Bae as a slight bump but also agreed his
body moved forward a little bit as a result of the impact.

[5]            
Ms. Bae testified that she was looking straight ahead and did not
anticipate the collision.  She said she felt the impact – she described it at
trial as a strong shock; and said she heard a “boom bam” sound.  At her examination
for discovery, however, Ms. Bae had agreed that the impact could accurately be
described as a “light bump”.  She agreed that her car was not pushed forward. 
At trial, Ms. Bae testified that her body moved back and forth and the back of
her head came into contact with the head-rest of her seat.

[6]            
 Mr. Vasquez testified that he and Ms. Bae moved their vehicles so they
were not blocking traffic and then both of them got out of their vehicles to
check if the collision had caused any damage.  The two drivers inspected the
rear of Ms. Bae’s vehicle and the front bumper of Mr. Vasquez’s vehicle.  Mr.
Vasquez testified that he showed Ms. Bae that there was no damage to his
vehicle.  Mr. Vasquez and Ms. Bae exchanged driver’s licence and vehicle
registration information.  Mr. Vasquez, I infer, then got back into his
vehicle and drove away.

[7]            
Mr. Vasquez testified at trial that the collision with Ms. Bae’s vehicle
did not cause any new damage to his vehicle but that he did have pre-existing
damage to his front bumper and licence plate.

[8]            
The plaintiff called as a witness Mr. Philippe Sousa, a claims adjuster
employed by the Insurance Corporation of British Columbia.  Mr. Sousa was shown
a computer-generated document dated May 9, 2011 that contained notes apparently
made on April 30, 2010 in relation to the collision between Ms. Bae and Mr. Vasquez. 
Mr. Sousa had no recollection of having made the notes but did identify the
format of the document as similar to a “template” he had used for a couple of
months.  He testified he did not recall either Mr. Vasquez or Ms. Bae.  He said
that if he had filled in the information in the template, the information in it
would have come from the insured, or from his own observations of a vehicle, or
from information provided by a vehicle inspector.  The template includes the
following items:

*DMG:  FRONT BUMPER – LICENCE PLATE

*OLD DMG:  SMALL SCRATCH ON FRONT
BUMPER

[9]            
Mr. Sousa testified that reference to “DMG” is either an observation of
damage, or an indication of the point of impact – where the vehicle being
inspected had contacted another vehicle.  I am not persuaded that Mr. Sousa’s
notes are proof that there was any damage to Mr. Vasquez’s vehicle.

[10]        
In response to a Notice to Admit delivered on February 20, 2012, Mr. Vasquez
admitted that the collision caused damage to Ms. Bae’s vehicle but denied that
it had caused any damage to his own.  I accept Mr. Vasquez’s testimony that
there was no damage to his vehicle caused by this accident.

[11]        
The damage to Ms. Bae’s vehicle consisted of paint scuffs and damage to
a frame around Ms. Bae’s rear licence plate.  Repairs to Ms. Bae’s vehicle cost
$362.93.

[12]        
I conclude that this collision involved minimal force, but sufficient
force to cause Ms. Bae’s body to move within the vehicle, as a result of the
impact.

[13]        
Ms. Bae did not disagree with Mr. Vasquez’s testimony about what
occurred after the collision happened.  She testified, however, that after she
and Mr. Vasquez had inspected the vehicles and exchanged information, she did
not immediately drive away.  Instead, she called her friend, Ms. Nah; told her
she had been in a car accident; and asked Ms. Nah to come and pick her up.  Ms.
Bae did not explain why she felt incapable of driving herself home – she had
driven the vehicle after the accident far enough to prevent it from obstructing
traffic – but she did testify that she felt a little dizzy and needed to calm
herself.  She testified that she sat in the car waiting for her friend to
arrive.  Ms. Bae did not explain why she did not call her husband, who was at
home at the time. It was Ms. Nah, Ms. Bae’s friend, who telephoned Mr. Kim, and
then Ms. Nah and Mr. Kim drove to the location of the accident in Ms. Nah’s
vehicle.  Ms. Bae could not recall how long it took before her friend arrived,
accompanied by Mr. Kim, but recalled they arrived pretty quickly.

[14]        
Ms. Nah testified that when she and Mr. Kim arrived at the location of
the accident, Ms. Bae was not seated in her vehicle but was standing outside
the vehicle.  Ms. Nah said Ms. Bae looked nervous and afraid.  Mr. Kim
testified that when he and Ms. Nah arrived at the location of the accident, Ms.
Bae was seated in the driver’s seat of the vehicle; that he knocked on the
driver’s side window and then went around and got into the passenger seat.  After
a short time, he and Ms. Bae changed seats and he drove their vehicle to their
home.

[15]        
Ms. Bae testified as the second to last of the six witnesses who
testified in the plaintiff’s case.  Before she testified, the court and Ms. Bae
had heard the testimony of two physiotherapists who had treated Ms. Bae; Ms.
Bae’s family doctor; a friend of the plaintiff and the plaintiff’s husband. 
Ms. Bae’s testimony was interrupted to hear the evidence of Mr. Sousa, the ICBC
claims adjuster referred to earlier in these Reasons.  No explanation was given
for the decision to delay Ms. Bae’s testimony until after she had heard the
evidence of the other witnesses for the plaintiff.

[16]        
There was some confusion in the testimony and trial exhibits about Ms.
Bae’s age.  Dr. Bonnie Law, Ms. Bae’s family doctor, had recorded Ms. Bae’s
year of birth in her records as 1957 and testified at trial that Ms. Bae was 54
years old.  Ms. Bae testified that she was 43 years old when the accident
happened and 45 at time of trial.  The physiotherapy records in evidence record
Ms. Bae’s birth date as June 1967, which would indicate she was 42 years old
when the accident happened and 44 at time of trial.  I accept Ms. Bae’s
testimony that she was 43 when the accident happened and 45 at time of trial.

[17]        
Ms. Bae is Korean-Canadian, having immigrated to Canada in 2006 together
with her husband, Keun Bae Kim, and the couple’s two children – a son who was
19 at time of trial; and a daughter who was 17.  The son was in his first year
of Sciences at the University of British Columbia; the daughter was attending
Prince of Wales Secondary School in Vancouver.  At the time of the accident in
April 2010, Ms. Bae’s son was in the Baccalaureate program at Churchill
Secondary School.

[18]        
Ms. Bae testified that in 2010 she was not working outside the home. 
She described herself as a housewife.  In March 2010, she had started an
evening course in English as a Second Language at Vancouver Community College. 
Classes were held four nights a week – Monday to Thursday – and there was also
homework required.  Ms. Bae completed that course in November 2010.  At time of
trial, she was taking a computer course at an adult education centre.

[19]        
Mr. Kim, Ms. Bae’s husband, testified at trial that in April 2010 he was
the owner of a printing business that specialized in printing books and
brochures and was also involved in trading in currencies and the stock market. 
He sold the printing business in December 2010 but continued to be involved in
buying and selling shares and currency.

[20]        
In April 2010, the Kim/Bae family lived in a condominium on the west
side of Vancouver.    Before the accident, Ms. Bae did all of the cooking,
cleaning and laundry for the family; and drove the couple’s son to and from his
high school on school days.  Ms. Bae was physically active and enjoyed good
health.  Her husband described her as the person who brightened his life and
that of the couple’s children.  Ms. Bae rose early each weekday morning to
prepare breakfast for her children and to pack school lunches for them.

[21]        
In addition to her work in the home and evening classes, Ms. Bae went
for brisk walks almost every day with her friend Ms. Nah, who lived in the same
condominium building.  The walks generally lasted from 15 minutes to an hour. 
In bad weather, Ms. Bae and her friend exercised on treadmills or exercise
bicycles in the building’s fitness room instead of walking outdoors.  Ms. Bae
also swam several times each week.

[22]        
Ms. Bae testified that after the accident, Mr. Kim drove her back to
their home and that by the time they arrived she had a headache, felt dizzy;
and had pain in her neck and shoulders.  She decided she would not go to her
evening ESL class that evening; and instead went to bed early.  She testified
that her legs and knees felt weak.  She said that she could not move her neck
very well and had sharp, poking pain in her neck; and that her shoulders felt
heavy and stiff.

[23]        
Ms. Bae testified that the next day when she woke up she felt worse –
had a headache, felt dizzy, her arm felt weak, her legs were shaky, and her
neck and shoulders were aching.  She testified her headache was so severe and
she felt so dizzy that she could not stand and could not move her neck or
shoulders.  She remained at home that day and again missed her evening class.

[24]        
Mr. Kim testified that the day after the accident, Ms. Bae did not put
on make-up or brush her hair and spent the day in bed.  He said that was very
unusual for his wife; that she was a very active person.  He said that for the
first couple of months after the accident, he helped his wife by massaging her
neck and shoulders, especially before she went to sleep.

[25]        
On April 15, 2010 – two days after the accident – Ms. Bae said she felt
even worse and that she had pain travelling down her left arm to her fingers. 
She said she had pain in her upper and lower back.  I conclude that Ms. Bae’s
recollection that she had pain in her lower back two days after the accident is
probably mistaken, based on the evidence of Dr. Bonnie Law, Ms. Bae’s family
doctor.  In cross-examination, Dr. Law confirmed that Ms. Bae had not reported
pain in her mid or low back until her second visit on April 28, 2010.

[26]        
 Ms. Bae went to see Dr. Law on April 15, 2010.  Dr. Law wrote a
medical-legal report on November 11, 2010.  She reported that on April 15,
2010, Ms. Bae reported tenderness in her right and left neck and left upper
shoulder pain.   She complained of dizziness and said she had difficulty
standing and “…complained of fatigue in her right and left legs.”  She
reported headaches and pain into her left arm.  On examination, Dr. Law found
Ms. Bae had tenderness in her right and left neck and upper shoulder areas. 
She had pain with neck movements, but normal range of motion in her neck.  Dr.
Law noted that Ms. Bae “…did not have any low back pain”.  Ms. Bae’s
neurological examination was normal.

[27]        
At trial, Ms. Bae testified that during the period immediately following
the accident she had headaches two or three times a week, lasting 15 to 20
minutes.

[28]        
Dr. Law noted in her report that Ms. Bae said she had been taking Advil
(non-prescription) given to her by a friend.  At trial, Ms. Bae testified that
she had taken only one Advil tablet in the two days before seeing Dr. Law on
April 15, 2010, but that after Dr. Law said it was okay to take Advil, she
began taking it more often.  Dr. Law advised Ms. Bae to continue to take
Advil three times a day as needed and to use hot compresses.  She also
recommended physiotherapy.

[29]        
Ms. Bae had missed her evening ESL classes on April 13 and 14, but did
attend class on April 15 and did not miss any classes after that date due to
discomfort from her injuries.  Ms. Bae testified that she had a headache on the
evening of April 15 and felt a little dizzy, so her husband drove her to school
and picked her up after class.  She told her classmates and teacher about the
motor vehicle accident and they were sympathetic.

[30]        
Ms. Bae went to Dunbar Physiotherapy Clinic on April 16, 2010. 
According to the physiotherapy records, Ms. Bae reported that she had felt pain
immediately following the accident on both sides of her neck and in both
shoulders, radiating into her left arm.  She reported immediately feeling dizzy
and having a headache but said that the headache and dizziness had got better
after one night.  She reported that on April 15 she had noticed pain going down
the back of both of her legs and had started to have some back pain on April
16.

[31]        
Physiotherapist Heather Baxter testified that she assessed Ms. Bae on
April 16.  The neurological examination was normal but Ms. Bae reported pain
when he neck was rotated left or right and on flexion and extension.   Although
she had no specific base line for Ms. Bae, Ms. Baxter assessed increased muscle
tone in Ms. Bae’s paraspinal and trapezoid muscles.  She recommended to
Ms. Bae that she apply ice to her neck and shoulders and taught her some
exercises to improve her active range of motion.

[32]        
Ms. Baxter saw Ms. Bae again on April 21.  She assessed increased muscle
tone in the upper trapezoids and on both sides of the thoracic spine; and in
Ms. Bae’s neck and shoulders.   Ms. Baxter had Ms. Bae fill out a “Neck
Disability Index Questionnaire” on April 21.  Ms. Bae reported that her pain
was fairly severe at that moment; that the pain prevented her from lifting
heavy weights but that she could manage light to medium weights; that she had
infrequent moderate headaches; that she could look after herself normally but
with pain; that she could read as much as she wanted with moderate pain in her
neck; that she could concentrate fully with slight difficulty; that she could
do most of her usual work; that her sleep was mildly disturbed (1 – 2 hours
sleepless); that she could drive her car for as long as she wanted with
moderate pain in her neck; and that she was able to engage in most but not all
of her usual recreation activities.  Ms. Bae was also asked to complete a
“Roland Morris Questionnaire”.  The questionnaire consists of 24 descriptions
of symptoms or physical limitations and the person completing the questionnaire
is directed to circle the numbers of all descriptions that apply on that day. 
Ms. Bae selected only 6 of the 24 items, indicating that she changes positions
frequently to try to get her back comfortable; walks more slowly than usual
because of her back; lies down to rest more often; tries to get other people to
do things for her; sleeps less well; and avoids jobs around the house because
of her back.  Among the descriptions Ms. Bae did not select were item 4 –
“Because of my back, I am not doing any of the jobs that I usually do around
the house”; item 13 – “My back is painful almost all of the time”; item 17 – “I
only walk short distances because of my back pain”; or item 22 – “Because of my
back pain, I am more irritable and bad tempered with people than usual”.

[33]        
After April 21, Ms. Baxter did not see Ms. Bae again and physiotherapist
Laura Adams took over Ms. Bae’s care.  Ms. Bae had seven physiotherapy sessions
with Laura Adams.  Ms. Adams testified at trial, although she said she did not
remember Ms. Bae and was relying entirely on her clinical notes.  Ms. Adams
first saw Ms. Bae on April 23.  She noted that Ms. Bae had more difficulty
flexing her neck on the left side but had more tightness in the scapular
muscles on the right side than on the left.  She thought Ms. Bae had slightly
“rotated” vertebrae and reported tenderness to palpation of the top six
vertebrae and the left first rib.  Ms. Adam’s treatment consisted of massage
and passive neck stretching while Ms. Bae was lying on her back.  She applied
hot packs, and she also demonstrated exercises for Ms. Bae and gave Ms. Bae
sheets of exercises for her to do.

[34]        
Ms. Bae saw Dr. Law for a second visit post-accident on April 28, 2010. 
Ms. Bae reported she was still having pain on both sides of her neck and
in her shoulders.  According to Dr. Law’s report, Ms. Bae reported on April 28,
2010 that she “…had since developed mid to low back pain”.  Dr. Law
recommended that Ms. Bae continued taking Advil as needed for pain, and
that she try massage therapy in addition to physiotherapy.   On April 28, Dr.
Law recommended that Ms. Bae return to see her in one month.

[35]        
Physiotherapist Laura Adams treated Ms. Bae on April 23, 26, 28; and May
3, 12, 19 and 26.  Ms. Bae went for one massage therapy treatment, on May 15,
2010 but did not continue with massage therapy.

[36]        
Ms. Bae testified that on May 15, 2010 she had a full body massage and
felt relief during the session, but the next day all her pain returned.  She
was asked why she did not continue with massage therapy.  She said she thought
the $75 cost was too high and there was a good sauna and jacuzzi in her
condominium building, so she would just treat herself instead.  She said she
started having a sauna three or four times a week and that it did help to relax
her muscles.  She testified she also did the stretching exercises her
physiotherapist had recommended.  She continued to do the exercises until
September 2010.

[37]        
 Ms. Bae testified that the physiotherapy helped her a great deal.  On
May 26, Ms. Bae reported to physiotherapist Laura Adams that she was feeling
better, but that her left shoulder and arm were sore when she was moving or
doing activities.  Ms. Adams recommended using ice as needed, and demonstrated
some new exercises.  Ms. Adams recommended that Ms. Bae return the following
week, but Ms. Bae discontinued treatment.  She testified that she had the
exercises she had been given and she decided to just carry on by herself.  She
also testified that she thought the physiotherapy was taking up too much of her
time and that after two months she felt better.

[38]        
After April 28, she did not see Dr. Law again until November 2, 2010.  I
conclude that it is more probable than not that Ms. Bae saw Dr. Law on November
2 because Ms. Bae’s lawyer had asked Dr. Law to provide a medical-legal report
by letter dated September 21, 2010.  In that letter, counsel stated:

We
expect that you will conduct a physical examination of Mrs. Bae in preparation
for the report and that your office will arrange an appointment for same as
soon as possible.

[39]        
According to Dr. Law’s report, on November 2, 2010 Ms. Bae reported that
her right and left neck and shoulder pain was about 80% better than her initial
symptoms.  Ms. Bae testified that by the time she saw Dr. Law in November, she
was not having headaches.  For some reason, Dr. Law recorded that Ms. Bae had
been attending physiotherapy between April and November 2010; and had missed
three weeks of evening classes.  I am satisfied that Ms. Bae did not attend
physiotherapy after May 26 and missed only two classes.

[40]        
Dr. Law noted in her report that that Ms. Bae said, on November 2, 2010,
that she had not been taking any Advil.  On examination for discovery, Ms. Bae
testified she had only taken 10 Advil from the date of the accident to the date
of her examination for discovery.  At trial, Ms. Bae said she thought she took
more than 10 − that her friend had given her half a bottle of Advil, but
she agreed that she had not purchased any additional Advil and had stopped
using it at all after two months.

[41]        
Dr. Law’s initial diagnosis was Grade 2 right and left neck strain;
Grade 2 right and left thoracic strain; and Grade 2 right and left low back
strain.  That remained her diagnosis in her report and at time of trial.  Dr.
Law testified that there are four “grades” used by physicians to characterize
soft tissue injuries like “whiplash”.  She said the injury is classed as Grade
1 if the only symptoms are subjective – that is complaints from the patient –
but Grade 2 if there are objective signs of musculoskeletal injury.  She said
that she considered Ms. Bae’s strain to be Grade 2 because there were some
physical symptoms on examination – tenderness in Ms. Bae’s case.  Dr. Law
testified she considered tenderness to be an objective symptom, but agreed in
cross-examination that there are subjective elements as the doctor must assume
the patient’s reports of tenderness are accurate.

[42]        
Ms. Bae testified on examination for discovery that her low back pain
had gone away by June 2010.  She told Dr. Law in November 2010 that her low and
mid back strain had resolved, but that she was still having discomfort in her
neck and shoulders.  Dr. Law noted that Ms. Bae reported that she had continued
to do her household chores after the accident, despite having pain, because she
“had to”.  In Dr. Law’s opinion, Ms. Bae’s long term prognosis for full
recovery was “good” and on November 2, 2010 she expected that Ms. Bae would
likely make a full recovery in the next year.  Ms. Bae testified that her neck
and shoulders continued to improve after November 2 and that by January and
February 2010 she felt much better.  At time of trial she said she only
occasionally felt soreness in her neck and lower back.

[43]        
Ms. Bae testified that her leg symptoms were much better within three
months after the accident and gone completely within five months.  At
examination for discovery, she testified that all of her symptoms had
completely resolved by February 2011 but at trial she said she still had
occasional discomfort in her neck and shoulders.

[44]        
Ms. Bae testified that the day after the accident, she could not do
housework, but that after that day she resumed doing the cooking, cleaning,
laundry, and preparation of lunches for her children.  These activities caused
her discomfort, but she persisted.  She said the first two months were quite
challenging for her.  She prioritized the most important activities and her
husband helped her with vacuuming for the first two months.  Her husband took
over driving the couple’s son to and from his school; and he helped tidy the
house.  The family ate out more than they had previously.  After two months,
Ms. Bae resumed vacuuming the home.

[45]        
Neither the physiotherapy records nor Dr. Law’s records or report
indicate that Ms. Bae was told to refrain from engaging in physical exercise. 
Dr. Law agreed in cross-examination that it is important for patients with
injuries like Ms. Bae’s to remain active including swimming, walking and going
to the gym.  She testified she would defer to a physiotherapist in determining
when a patient should take up or resume those forms of exercise.  Dr. Law
testified in cross-examination that Ms. Bae might have improved more rapidly if
she had continued having physiotherapy after May 2010.

[46]        
Ms. Bae testified that after the accident, she stopped going for daily
walks.  She said her legs felt shaky and weak.  There is no medical explanation
for this symptom.  She said that she tried walking in September 2010 but felt
tired.  She resumed regular walks about a year after the accident, she
testified.

[47]        
Ms. Nah, Ms. Bae’s friend, testified that before the accident she and
Ms. Bae regularly went for brisk walks but that after the accident Ms. Bae said
she could not walk because of pain in her neck, upper back, lower back and
legs.  She recalled that soon after the motor vehicle accident the two women
had tried to walk but after only one lap around the park they had to stop and
went to use the sauna instead.  Ms. Nah thought that this attempt to walk in
the park might have been two days after the accident.

[48]        
Ms. Bae also testified that she stopped recreational swimming after the
accident.  Ms. Bae did not report to Dr. Law that she was feeling stressed or
depressed but at trial testified that she experienced feelings of depression
and irritability.  She said that not walking and swimming regularly caused her
to feel depressed and stressed because she had enjoyed walking with her friend
Ms. Nah as a social activity.  She said she also became quite irritable and
that she and her husband argued more frequently.  She said that she was not
paying as much attention to their children as she had before the accident and
she and her husband argued about that, especially in the first one or two
months following the accident.

DAMAGES

[49]        
In submissions, counsel for Ms. Bae told the court that Ms. Bae is
seeking non-pecuniary damages, special damages, and an award for loss of the
capacity to do housework.  Counsel for the defendant pointed out that in the
brief filed by plaintiff’s counsel at the Trial Management Conference, the plaintiff
indicated she would not be seeking an award for loss of the capacity to do
housework.

[50]        
Counsel for Ms. Bae submitted that the range of non-pecuniary damages in
cases involving injuries and symptoms like those of Ms. Bae is between $10,000
and $15,000 and he submits that an award of $15,000 is appropriate in this
case.  Ms. Bae is seeking to recover special damages, including mileage
calculated at 50 cents per kilometre, in the amount of $327.10 and an award for
loss of the capacity to do housework in the amount of $3,000.  He initially
suggested that submissions on costs should be deferred until the Reasons for
Judgment had been issued, but the parties subsequently agreed to provide
written submissions about costs.  The plaintiff’s written submissions were
filed March 30, 2012; the defendant’s written submissions were filed April 26,
2012.

[51]        
Defendant’s counsel objected strongly to the claim for damages for lost
or impaired capacity to do housework referred to in the plaintiff’s
submissions.  Although the claim was pleaded, defendant’s counsel told the Court
that in the brief filed on behalf of the plaintiff at the Trial Management
Conference, the plaintiff said that she would not be seeking a separate award
and that the claim would be subsumed in the claim for non-pecuniary damages. 
Defendant’s counsel said he had relied on that information and so had not
cross-examined the plaintiff’s husband about matters relevant to that head of
damages.  Defendant’s counsel also took issue with mileage at 50 cents per kilometre
and submitted that mileage should not be included for a visit Ms. Bae made to
Dr. Law in January 2011 because that visit was primarily related to a fall in
which Ms. Bae had damaged a tooth.

SPECIAL DAMAGES

[52]        
I agree with defendant’s counsel that the visit to Dr. Law in January
2011 would have occurred even if the accident had not happened.  Making a
slight adjustment to the claim for special damages, I award the plaintiff
special damages of $315.

DAMAGES FOR LOSS OR IMPAIRMENT OF THE CAPACITY TO DO
HOUSEWORK

[53]        
In his opening statement, plaintiff’s counsel did refer to the
plaintiff’s husband having done the vacuuming for a month after the motor
vehicle accident; and that the family ate out for more often.  He did not
expressly state, however, that the plaintiff would be seeking an award for loss
of the capacity to do housework.  Given the statement in the Trial Brief; and
the lack of an express reference to the claim in the plaintiff’s opening, it
was fair for defendant’s counsel to assume that the plaintiff would not be
pursuing this claim as a separate head of damages.  Given that, I consider it
more appropriate to consider this evidence as part of the plaintiff’s claim for
damages for pain, suffering and loss of enjoyment of life.

NON-PECUNIARY DAMAGES

[54]        
I am satisfied that the discomfort caused by soft tissue injuries to Ms.
Bae’s neck, shoulders and lower back did force her, for some weeks, to refrain
from doing some household tasks that she had accomplished with ease before the
accident.  Both Ms. Bae and Mr. Kim testified that before the accident, Ms. Bae
had done all of the cooking, cleaning and laundry and had also been the person
who drove the couple’s son to school in the morning and picked him up in the
evenings.  Although both children were teens, Ms. Bae also made school lunches
for them.

[55]        
Ms. Bae’s testimony indicates she was a meticulous housekeeper.  After
the accident she continued doing housework, but I am satisfied she was forced
to lower her standards and do less; prioritizing the tasks that had to be done
and relying on her husband to take over the task of vacuuming the home for at
least a month.  Mr. Kim testified he also did more “tidying” of the home. 
He also assumed responsibility for driving the couple’s son to and from
school.  The family ate out more often to spare Ms. Bae from having to cook
every day.

[56]        
I am not persuaded that Ms. Bae was advised to refrain from her usual
routine of walking almost daily and swimming several times a week or that her
accident injuries incapacitated her from these activities.  Ms. Bae claimed she
had been advised to refrain from physical activity, but both physiotherapists
who treated Ms. Bae testified at trial and neither said they had told Ms. Bae
to refrain from walking or swimming.  Dr. Law testified that she normally
encouraged her patients to be physically active.  I am satisfied that Ms. Bae
decided that these activities would likely cause her too much discomfort.  As a
result she missed the social interaction with her friend Ms. Nah; and the stress
reduction she normally experienced through physical exercise.

[57]        
Ms. Bae did not report to Dr. Law that she was experiencing depression
or that she had become more irritable, but she testified that she did feel
depressed and both she and her husband testified that they argued more and that
Ms. Bae was less attentive to the needs of her children than she had been
before the accident.  This was, however, temporary.

[58]        
Ms. Bae did not explain why she relied more on her husband to drive her
to places after the accident.  I infer from her reaction to the accident itself
– the fact that she called Ms. Nah to come to the accident scene – that she was
nervous about driving after the accident.  This nervousness passed within a few
months.

[59]        
Ms. Bae was able to return to regular attendance at her four evenings a
week classes in English as a Second Language only two days after the accident
and she completed the course in November 2010.  There is no evidence suggesting
that she would have completed the course any sooner had she not been injured.

[60]        
The fact that Ms. Bae discontinued physiotherapy after six weeks;
attended only one massage therapy session; took very little pain medication;
and after April 28, 2010, did not return to see her family doctor for six
months, suggests that she was feeling sufficiently improved by the end of May
that she did not believe she needed further therapy or medical treatment.  Ms.
Bae testified that she thought the expense of massage therapy was not
warranted.  The evidence does not indicate she could not afford the fees.  I
conclude, therefore, that by the end of May, she was well on the way to
recovery and satisfied that she could cope with the degree of discomfort she
was experiencing by using the sauna and jacuzzi in her condominium building. 
Ms. Bae testified that she does not like to take medication, but even so, her
very limited and short-term use of over the counter pain medication suggests
that the discomfort she was experiencing from her injuries was not significant
enough to cause her to seek relief by the use of even non-prescription
medication.

[61]        
I conclude that by June 2010 some of Ms. Bae’s injuries had resolved
entirely and the residual discomfort in her neck, shoulders and lower back was
not debilitating and not significant enough for her to seek out further
therapy, medical intervention, or relief from medication.  By November 2010,
she was almost completely recovered.

[62]        
On the issue of quantum of non-pecuniary damages, counsel for Ms. Bae
relied on Stapley v. Hejslet, [2006] B.C.J. No. 128 (S.C.); Parmar v.
Lahay, [2011] B.C.J. No. 2280 (S.C.); Ceraldi v. Dathie, [2008]
B.C.J. No. 2624 (S.C.); Dadson v. Gallo, [2007] B.C.J. No. 2215 (S.C.); De
Leon v. Harold, [2010] B.C.J. No. 2521 (S.C.); Dolha v. Helt, [2011]
B.C.J. No. 1054 (S.C.); Faedo v. Dowell, [2007] B.C.J. No. 2985 (S.C.);
and Murray v. Byrd, [2008] B.C.J. No. 1289 (S.C.).

[63]        
Mr. Vasquez’s counsel relied on Prasad v. Nyari, [2007] B.C.J.
No. 101 (S.C.); Brar v. Kaur, [2010] B.C.J. No. 1708 (S.C.); Seto v.
Ng, [2009] B.C.J. No. 1389; and Yew v. Ford Credit Canada Ltd.
[1996] B.C.J. No. 1400 (S.C.) on the issue of quantum of non-pecuniary damages.

[64]        
Having considered these authorities, I award Ms. Bae the sum of $12,000
for non-pecuniary damages.

FAILURE TO MITIGATE

[65]        
The defendant submits that the awards of damage should be reduced on the
grounds that Ms. Bae failed to mitigate her damages by continuing with massage
therapy and physiotherapy.  I am not persuaded that the evidence in this case
demonstrates that had Ms. Bae continued with these therapies she would have
recovered more quickly.  Dr. Law did testify that in general she expects
patients who receive therapy to recover more quickly than those who do not but
in my view the evidence falls short of proof that Ms. Bae’s symptoms would have
dissipated more quickly had she continued with therapy.  She testified that she
continued to do the exercises that had been recommended to her by the
physiotherapists and that she found that using the sauna and jacuzzi in her
condominium building provided her with relief.  The one massage therapy session
she did attend provided only very temporary relief – she testified her symptoms
had all returned by the next day.

COSTS

[66]        
Rule 14-1(10) of the Supreme Court Civil Rules provides that a
plaintiff who recovers a sum within the jurisdiction of the Provincial Court
under the Small Claims Act is not entitled to costs, other than
disbursements, unless the court concludes that there was sufficient reason for
bring the action in the Supreme Court.  In Gehlen v. Rana (2011), 18
B.C.L.R. (5th) 340, 2011 BCCA 219, the Court of Appeal held that a judge must
apply this Rule unless satisfied that the plaintiff had sufficient reason, at
the time the action was commenced, for bringing the action in the Supreme Court. 
The Court said that the test is objective; and that the plaintiff must provide
proof of persuasive and compelling circumstances.

[67]        
Ms. Bae’s action was commenced on April 7, 2011.  The defendant submits
that by the date, the plaintiff was, by her own admission, fully recovered from
her accident injuries.  Ms. Bae knew that she was not advancing a claim for
loss of income; that she had minimal special damages; and she was in receipt of
Dr. Law’s report dated November 11, 2010 indicating that she had been 80%
recovered by November 2010 and that the prognosis for full recovery was
considered “good”.  The defendant submits that the plaintiff could not have
reasonably believed that she would recover more than $25,000 in damages.  The
plaintiff could not have been anticipating electing trial by judge and jury as
she commenced her action pursuant to Rule 15-1.  Sub rule 15-1(10) precludes
trial by jury.

[68]        
Plaintiff’s counsel submits that it was nevertheless reasonable for Ms.
Bae to commence her action in Supreme Court.  He points to the fact that
liability for the accident was in issue.  In Kuehne v. Probstl, 2004
BCSC 865, the court identified factors to be considered, in addition to the
expected quantum of damages, in determining whether there was sufficient reason
to commence an action in Supreme Court.  They include the legal or factual
complexity of the case; the need for discovery of documents and/or examinations
for discovery; the need for a judgment that can be enforced outside of the
province; a legitimate preference for a jury trial; or access to the summary
trial procedures available in the Supreme Court.

[69]        
I am satisfied that this case had neither legal nor factual complexities
that made the Supreme Court a necessary venue.  I have already referred to the
fact that a jury trial was not an option in any case; and there will be no need
to enforce the judgment outside of the province.

[70]        
In some cases, the fact that the plaintiff had difficulty with the
English language; and therefore would have difficulty pursuing the claim
without the assistance of counsel, has been held to be sufficient reason to
proceed in Supreme Court, where the possibility of recovering costs makes it
easier for a plaintiff to find counsel willing to act.

[71]        
Plaintiff’s counsel submits also that in this case, the defendant denied
liability for the accident in the Response to Civil Claim.  Plaintiff’s counsel
has advised the Court that prior to the action being commenced, the defendant’s
insurer had indicated:

…that
due to the “minimal nature of the impact forces involved in the collision”…the
Plaintiff had not sustained any “compensable injury”.

[72]        
The defendant did not admit liability until January 30, 2012 and even at
that date, continued to maintain that the plaintiff had suffered no injury, loss,
damage or expense as a result of the accident.

[73]        
Plaintiff’s counsel submits that because the defendant was maintaining
that the plaintiff’s negligence was the sole cause of the accident, an
examination for discovery of the defendant was necessary and that procedure
would not have been available to the plaintiff in Provincial Court.  Counsel
pointed out that at the plaintiff’s examination for discovery in July 2011, she
was asked questions pertaining to liability, including whether she had consumed
alcohol or drugs prior to the accident; whether she was familiar with the
location where the accident happened; whether her vehicle had been properly
maintained and was in proper working order and whether she had a valid driver’s
licence at the time.

[74]        
It was not until August 18, 2011 – after both the plaintiff and
defendant had been examined for discovery – that defendant’s counsel wrote to
plaintiff’s counsel suggesting that the action should be heard in Provincial
Court and seeking the plaintiff’s consent to transfer the action to that
court.  Plaintiff’s counsel replied on September 21, 2011 indicating that if
the trial could be heard in Provincial Court in the same time frame as the
trial date set in Supreme Court – March 2012 – then the plaintiff would consider
the request for a transfer.  Defendant’s counsel was asked to make inquiries to
determine when the trial could be heard if transferred to Provincial Court.  No
reply was received.

[75]        
Ms. Bae testified at trial with the assistance of an interpreter.  She
had been examined for discovery without an interpreter and at trial indicated
she had misunderstood some of the questions asked of her.  Ms. Bae is not an
assertive individual and I am satisfied she would have had considerable
difficulty pursuing this action without the assistance of counsel.  Of course,
parties may be and often are represented by counsel in Provincial Court, but
the unavailability of costs makes it more difficult to find representation. 
There was a denial of liability in circumstances where normally liability would
be admitted and it was reasonable for the plaintiff to wish to examine the
defendant for discovery on the issue of liability – a procedure unavailable in
Provincial Court.

[76]        
Taking all of these factors into account, I am of the view that there
was sufficient reason for the plaintiff to bring her action in Supreme Court. 
I award the plaintiff costs, the costs to be governed by Rule 15-1(15).

“W.G. Baker J.”