IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130829

Docket: M122922

Registry:
New Westminster

Between:

Xuan Han

Plaintiff

And

Harbeen K. Chahal
and Jagdish S. Chahal

Defendants

Before:
The Honourable Mr. Justice Verhoeven

Reasons for Judgment

I.                
Introduction

[1]            
Ms. Xuan Han claims damages arising from a motor vehicle accident
that occurred November 23, 2008, in Surrey.  Ms. Han was walking in a
marked crosswalk southbound across 72^nd Avenue at 126^th
Street when she was struck by a vehicle driven by the defendant Harbeen Chahal,
and owned by her father, the defendant Jagdish Chahal.

[2]            
In their statement of defence, the defendants deny liability for causing
the accident.  At trial they conceded liability, but contended that the
plaintiff should be held contributorily negligent to the extent of 25%.

[3]            
Ms. Han’s immediate injuries included fractures of her left femur
and right wrist.  She contends that she also suffers from chronic pain and
depression, and that she suffered a mild brain injury in the accident.  She
contends that she is virtually totally disabled in terms of employability.

[4]            
The trial was conducted in two parts.  It was scheduled to be heard over
10 days commencing April 16, 2012.  It became apparent that the trial could not
be completed within the allotted time, and that for scheduling reasons a long
adjournment would be necessary.  Therefore the trial was adjourned on the 9^th
day, prior to commencement of cross-examination of the plaintiff.  The trial
resumed February 4, 2013 for a further five days.  Delivery of these reasons
has been delayed due to the necessity of extensively reviewing evidence
including transcripts, documents and reports, and the helpful, thorough written
submissions of counsel, for which I am grateful.

II.              
Liability

A.             
The Accident

[5]            
The accident occurred at about 7 p.m. on the evening of Sunday, November
23, 2008, at the intersection of 72^nd Avenue and 126^th
Street, Surrey.  The accident occurred at night.  There is some street lighting
in the area.  The intersection is “T” shaped.  72^nd Avenue is at the
top of the “T”, and is oriented east-west.  126^th Street forms the
bottom of the “T”.  126^th Street is oriented north-south.  Although
there is no precise scene diagram in evidence, the photographs show that 72^nd
Avenue has two lanes for through traffic in each direction.  On the west side
of the intersection, a large median divides the eastbound and westbound lanes. 
There is a traffic light at the intersection.

[6]            
Ms. Han was returning home from her work as a salesperson.  She
resided in a rented basement suite approximately two blocks south of the scene
of the accident.  She got off a bus at a bus stop on the north side of 72^nd
Avenue, very close to the intersection.  She walked a short distance eastbound
along the north side of 72^nd Avenue to the crosswalk on the west
side of the intersection.

[7]            
When Ms. Han reached the crosswalk, she pushed the pedestrian
signal button and waited for the appropriate signal from the opposite side of
the street.  When the white pedestrian signal light came on, she stepped off
the curb and began walking south across 72^nd Avenue, in the marked
crosswalk.

[8]            
While she was attempting to cross 72^nd Avenue, she was struck
by the vehicle driven by Ms. Chahal, a Mazda Tribute SUV.

[9]            
Ms. Chahal had been driving northbound on 126^th Street.
She turned left onto 72^nd Avenue, intending to proceed westbound on
72^nd Avenue.

[10]        
Ms. Han was struck by Ms. Chahal’s vehicle when she was walking
within the crosswalk.  She says she was struck at a point approximately in the
middle of the two westbound lanes of 72^nd Avenue.

[11]        
Prior to the accident, Ms. Han had noticed the defendant’s vehicle
approach the intersection of 72^nd Avenue from 126^th
Street.  She noticed its headlights.  She testified that the vehicle stopped. 
She did not notice it again until she was struck.

[12]        
Ms. Chahal testified that as she approached the intersection, the
light facing her was green.  She made a left hand turn onto 72^nd
Avenue, when she collided with Ms. Han, who was in the crosswalk.  She heard
a thud and felt an impact.  She did not see Ms. Han until after the
accident, when she got out of her vehicle and saw her lying on the road,
moaning.  She could not recall braking or slowing down prior to the impact.  She
could not estimate her speed at any time.  She could not specifically recall whether
her headlights were on but she assumed that they were.

[13]        
Mr. Harkarit Singh was the driver of a vehicle stopped a red light,
facing westbound on 72^nd Avenue, when the accident occurred.  He was
accompanied by his wife.  There were no vehicles in front of his.  He had a
clear view of the intersection.  He saw Ms. Chahal’s SUV take the left
turn from 126^th Street on a green light, and strike Ms. Han in
the crosswalk.  He testified that the speed of the Chahal vehicle was “fast”.  He
testified that Ms. Han had crossed one lane of traffic when the impact
occurred.

B.             
Liability – Analysis

[14]        
Ms. Chahal was unquestionably negligent in striking Ms. Han. 
Although it was night-time, there was street lighting in the area.  I find that
Ms. Chahal’s vehicle headlights were on.  The plaintiff would have been
visible to Ms. Chahal she had exercised due care and attention.  The
defendants concede liability.

[15]        
The defendants do not deny that Ms. Han was lawfully crossing the
street in a marked crosswalk and that she had the right of way, pursuant to
ss. 127(1)(b) and 132(2) of the Motor Vehicle Act, RSBC 1996,
c. 318.

[16]        
However the defendants argue that the plaintiff was not sufficiently
vigilant for her own safety in crossing the street, and that she ought to have
been aware of the approach of the defendant’s vehicle.  They argue that, as it
was night-time, and she was not wearing reflective clothing, she ought to have
taken more care for her own safety before leaving the curb and entering the
crosswalk, by perhaps making eye contact with the driver of the approaching
vehicle, or hesitating before leaving the curb, until such time as she could
have been confident that the driver of the approaching vehicle had seen her.

[17]        
The following comments of Wallace, J.A. for the court in Feng v.
Graham (1988), 25 B.C.L.R. (2d) 116 (C.A.) are apt:

Counsel for the defendants submitted that on the evidence the
respondent was at least contributorily negligent for the accident which caused
her injuries. Her alleged negligence consisted of leaving the curb and walking
hurriedly into the path of the motor vehicle driven by the defendant when that
vehicle was so close that it was impracticable for her to yield the right of
way. He asserted that the slightest lookout on the part of the plaintiff would
have revealed the presence of the defendant’s vehicle and any hesitation on her
part would have allowed the defendant’s vehicle to pass her safely.

In my view the plaintiff in the
circumstances of this case was entitled to assume that the defendant was going
to obey the law and yield the right-of-way to her. Her right to rely on that
assumption continued until such time as she knew, or ought to have known, that
the defendant was not going to grant her the right-of-way, whereupon the
plaintiff’s obligation to avoid injury to herself superseded her right to
exercise her right-of-way. The onus is on the defendants to establish that the
plaintiff knew or ought to have known, that the defendant driver was not going
to grant her the right-of-way, and that, at that point of time, the plaintiff
could reasonably have avoided the accident. See Mercer v. Mercer and Delorme,
[1949] 2 W.W.R. 294 at 296 (Man. C.A.).

[18]        
I find that the plaintiff was struck in the crosswalk, just as she
entered the second of the two westbound lanes.  She testified that she had
proceeded about four steps when she was struck.  The independent witness, Mr. Singh,
estimated that she was struck after she had crossed one lane.  Ms. Chahal’s
evidence about the accident details was generally vague.  However she was
turning left and would presumably have been attempting to enter the left lane
of the two westbound lanes, as she was obliged to do pursuant to s. 165 of
the Act.  Thus, I conclude that the plaintiff was well into the
intersection when she was struck, and some seconds had elapsed since she had left
the curb.  I conclude that at the time she left the curb there was absolutely
no reason for the plaintiff to be especially concerned for her safety in
relation to the defendant’s vehicle.  She was aware of the defendant’s vehicle
on the other side of the intersection, but was entitled to assume that the
defendant would obey the law and yield the right-of-way to her.

[19]        
It is not entirely clear whether the defendant stopped at the light
before proceeding into the intersection and striking the plaintiff.  The
plaintiff’s evidence was that the defendant’s vehicle was moving when she first
saw it, but it stopped.  The defendant’s evidence is more consistent with her
simply proceeding into the intersection on a green light, without stopping.  This
scenario is also more consistent with the evidence of Mr. Singh, who
testified that he was stopped at the red light when the collision occurred, and
his evidence that the defendant was going “fast”.  This scenario is also
supported by the evidence of the plaintiff that she waited at the curb after
activating the pedestrian signal, then proceeded into the crosswalk after the
walk signal came on, at which time I infer that the light facing Ms. Chahal
would definitely be green, and by my conclusion that there was a lapse of time
between when Ms. Han left the curb and when she was struck.  Finally, had
it been necessary for the defendant to stop, there is a greater chance that she
would have seen the plaintiff, which of course she did not.  I conclude that
the defendant entered the intersection on a green light, without stopping, and
struck the plaintiff in the crosswalk well after she had left the curb.

[20]        
The defendants have not satisfied the onus on them to establish that the
plaintiff knew or ought to have known that the defendant driver was not going
to grant her the right-of-way, and that, at that point of time, the plaintiff
could reasonably have avoided the accident.  There is no basis in the evidence
to suggest that after the plaintiff was in the crosswalk she ought to have seen
the defendant’s vehicle approaching, realized that she was not seen by its
driver, and somehow evaded the collision.  The idea that she could have made
eye contact with the driver of the vehicle at some point in time is highly unrealistic
in the circumstances, and is no more than speculative. In summary, the
plaintiff did not have a duty to positively ascertain the defendant’s
intentions nor did she have any means to do so.

[21]        
The defendants rely upon Brumm v. Inglis, [1997] B.C.J. No. 1181.
However, that case is clearly distinguishable.  There, the plaintiff walked in
front of the defendant’s vehicle as it was stopped at an exit from a driveway
onto a busy street, waiting for a break in heavy traffic.  The plaintiff could
see the driver of the vehicle.  She chose to walk in front of the vehicle,
which pulled forward as she did so.  In this context, Mr. Justice Pitfield
stated:

She knew of the defendant’s
intended actions. She knew or should have known there was danger to her
personal safety if she passed in front of the vehicle without first making eye
contact with the defendant and the vehicle accelerated suddenly in an attempt
to enter the busy flow of traffic.

[22]        
The circumstances of the case at bar bear no resemblance to those in Brumm. 
More specifically, in the case at bar, it cannot be said that the plaintiff
“knew of the defendant’s intended actions” other than perhaps in a general way,
nor can it be said that there was something that she realistically could or
should have done or refrained from doing in consideration for her own safety.

[23]        
I conclude that the defendants have not established that the plaintiff
was contributorily negligent.  It follows that the defendants are fully liable
for the accident.

III.            
Damages

A.             
General Background

[24]        
Ms. Han was 33 years of age at the time of the accident. Prior to
the accident she was healthy.  She is now 38. She is single.  She was born and
raised in China, where her family, including her parents and her younger
brother, continues to reside.

[25]        
In China she obtained two diplomas in English language programs.  The
first diploma was obtained in 1996, and the second in 2000.  From 1996 to 2000
she worked in several jobs in China including bilingual (English and Chinese) secretary,
bank teller or clerk, and merchandiser for an export company.  From 2000 to
2005 she worked as a marketing manager for an advertising company.

[26]        
In 2005 she went to Paris, France where she obtained a Masters of Business
Administration degree.  The courses were in English.  She speaks Cantonese,
Mandarin, English and to a lesser degree, French.  The courses for her MBA took
less than a year to complete.  Although her MBA was granted in April, 2006, in
fact she completed the necessary course work in November, 2005.

[27]        
While studying in Paris she worked part time as a tour guide for Chinese
business groups.  After graduation she worked for about six months in a
restaurant in France, as a general restaurant worker and waitress.  For about
two months in the summer of 2006 she worked on a farm in southern France, picking
fruit.  After returning to China to visit her family, she arrived in Canada as
an immigrant on November 24, 2006.

[28]        
After arrival in Canada she worked in Penticton for two months in an
unspecified capacity for a Hong Kong businessman who imported toys.  She was
unemployed for a month or two, and then obtained work with a company called JW
Research, commencing March 28, 2007.  The work involved selling MasterCard
credit cards to Canadian Tire retail customers throughout the Lower Mainland.  She
worked for JW Research in this capacity until early August 2007.  Her hours
were variable but she testified that she worked a full forty hour work weeks in
the last month of this work.  (For some reason her record of employment from JW
Research indicates that her last day of work was not until May 18, 2008, but
she testified and I accept that her work ended in August 2007.)

[29]        
Commencing August 7, 2007 she began full time work with First Nations
Emergency Services Society (FNESS), where she was employed as an event planner
or coordinator.  She left FNESS on July 25, 2008 to work for a month in China
at the Beijing Olympics, where she worked as a tour group host. She also took
the opportunity to visit her parents, in addition to visiting them earlier in
the year while on vacation.  On her return to Canada she took a two month
vacation, visiting Toronto and Niagara Falls.  On return to B.C. she resumed
working in credit card sales at Canadian Tire stores with JW Research.

[30]        
She worked for JW Research from October 31, 2008 to November 23, 2008,
the day of the accident.

[31]        
Following the accident she was taken to Surrey Memorial Hospital (“SMH”)
for treatment.  She underwent surgery for her fractured left femur and
fractured right wrist.  The surgery was performed by Dr. Stephen Maloon.  The
fracture to her femur was transverse, meaning that there was a complete break
across the shaft of the bone.  The surgery to her femur involved insertion of a
long metal rod (referred to in the evidence as a “nail”), stabilized by three
screws; one at the top of the femur, and two at the bottom.  Her wrist fracture
was undisplaced, meaning that the bones remained in good position.  Her wrist
injury was treated by being placed in a cast.  The leg surgery went well and
there were no follow-up complications. She remained in SMH for nine days. On
December 2, 2008 she was transferred to a convalescent unit of SMH, Laurel
Place, where she remained for about six weeks, to January 22, 2009, when she
was finally discharged home.

[32]        
Her progress was slow. She received weekly physiotherapy treatments from
the end of January to May.  She was unable to walk without crutches until May,
2009.  She began physiotherapy with Karp Rehabilitation in May, 2009.  She
required home care until July.  By July she was able to walk without a cane. 
Her Doctor, Dr. Lau, authorized her to return to work on a graduated basis
beginning with four hours per day starting July 20, 2009, but on August 14,
2009, Ms. Han advised Dr. Lau that there was no work available for
her at JW Research.

[33]        
However, in reality, Ms. Han had begun to rethink her career. 
During her stay at Laurel Place she had re-kindled her longstanding interest in
art.  She began painting.  Soon after her discharge from Laurel Place she
enrolled in classes in crochet, drawing, oil painting, watercolour and pottery.
She began purchasing art supplies for herself.  In April 2009 she began
working as a docent (a volunteer guide) at the Surrey Arts Centre.  In early
July 2009 she told the kinesiologist at Karp that she was unsure if she wanted
to continue in her work at JW Research, and she was considering looking for
another job, or going back to school.

[34]        
At trial, she said that the reason she did not want to return to credit
card sales was because the work involved a lot of standing and walking and she
was not sure that she could manage that.  She made two very brief efforts to
return to work at JW Research, in December 2009 and in March, 2012, but
contends that she could not do the work.

[35]        
In September, 2009 she enrolled in a Fine Arts Program at Kwantlen
Polytechnic University in Surrey.  She enrolled in a media graphics course at
BCIT.  In November and December 2009 she completed several tourism, food safety
and work safety courses. She spent two weeks of training at a hotel. She began
looking for work.

[36]        
She continued in her studies at Kwantlen University on the Fine Arts
program in 2010, 2011 and 2012.  She did very well in her studies, earning A’s
and B’s, and achieving the Dean’s Honour Roll in the Fall of 2011.  She did
less well in English, and says that she her studies are much more difficult for
her than they used to be pre-accident.  In September 2013, in the midst of the long
adjournment of the trial, she transferred to Emily Carr University.  Based on
her studies at Kwantlen, Emily Carr granted her one year of credit for its
program.  As of the conclusion of her testimony at trial in February, 2013, she
was in the second year of a four year Bachelor of Design program, majoring in
“Interaction Design”.  Emily Carr’s literature describes the interaction design
major as follows:

INTERACTION DESIGN MAJOR

Interaction design facilitates
the experience between people and the environment through the application of
interactive technologies.  Interactive systems are present in the many areas of
everyday life where technology helps people work through a series of decisions
or tasks, or to engage in activities.

She is also doing well in her studies at Emily Carr,
earning A’s and B’s.

[37]        
She is very vague about her career plans. She maintains that she
enrolled in the fine arts program at Kwantlen only as “art therapy” with no
plans to obtain a diploma or degree or to work in the field.  Even now, despite
her enrollment at Emily Carr, she denies that she is pursuing a career in art, or
design, although she said ambiguously that she was “exploring opportunities” in
the field.

[38]        
She contends that but for the accident, she would have continued to work
at JW Research while seeking work as an event planner, which she says was her
career aspiration at the time.

[39]        
She attempted to return to work at JW Research in early December, 2009,
at a Canadian Tire store at Coquitlam Centre.  She testified that after two
hours she could not continue due to pain and fatigue, so she called her
supervisor and left.  She did not attempt to return to work at JW Research
again until more than two years later, in March 2012, shortly before the
commencement of the trial in April 2012.  She worked at a store in Surrey.  She
worked there for two days, three hours the first day and then two hours the
next day.  She testified that she was unable to continue due to pain and
fatigue.

[40]        
She attended 44 physiotherapy treatment sessions of with Karp
Rehabilitation from July to November, 2009. She found the Karp treatment very helpful. 
Dr. Lau noted that as of early November 2009 she was complaining of
pain in her left thigh and knee with sitting or walking for more than an hour. 
He also noted that she was depressed and insecure as a new immigrant without a
job or financial support.  He prescribed anti-depressant medication.

[41]        
In mid-February 2010 she worked for a day and one-half as a host for a Chinese
New Year party held at the Vancouver Aquarium for the Chinese Olympic
Committee.

[42]        
She took a vacation lasting three and one-half months during March
through July 2010.  She travelled alone.  She toured Greece and the Middle East
for two months, then spent the last month and a half in China, where she
visited her parents.  She testified that continuing pain in her hip and wrist
made the trip difficult for her.  She testified that she took such a long
vacation as therapy because she was depressed.

[43]        
On return to Canada she continued to search for work.  She worked
briefly (a few hours on one day) doing some market research, and for a day and
a half grading blueberries at a farm.  In the fall of 2010 she resumed her
studies in Fine Arts at Kwantlen University.

[44]        
Although her femur and wrist fractures healed uneventfully, she
complained of continuing pain and discomfort associated with her femur injury. 
She saw her surgeon, Dr. Maloon, on February 1, 2010, who noted her
reports of ongoing vague symptoms of discomfort. He encouraged her to continue
with activities to her tolerance level.  The clinical examination was normal. 
He discussed the option of removing the surgical hardware.  On July 19, 2010
she saw Dr. Maloon again with continuing complaints of vague discomfort in
the area of her left thigh or buttock area and left knee.  She requested
surgery to remove the hardware.  The surgery was carried out successfully by Dr. Maloon
on December 29, 2010.

[45]        
In April, 2011 she visited China again, for about one month to six weeks.
In December 2011 she spent about 10 days on vacation in the United States,
visiting Portland, Oregon and Las Vegas.

[46]        
During the 2011 – 2012 academic year she worked part-time (2 days per
week, 3 hours each time) as a student assistant in the Fine Arts Department at
Kwantlen University.  In late 2012 she was retained to provide photographic
services for a series of 10 events at the Gateway Theatre in Richmond.  However
her services were terminated after four events. She was paid $40 per event.

[47]        
She has not had any substantial employment since the accident.  As
noted, she continues to study at Emily Carr University, and her career plans are
unclear.

B.             
Plaintiff’s Claims

[48]        
Ms. Han contends that she continues to
suffer from the injuries sustained in the accident.  In her submissions her injuries
are grouped as follows:

1.       Left mid-shaft transverse fracture in the
femur with associated avulsion fracture in the greater trochanter, resulting in
chronic thigh or buttock pain;

2.       Right
wrist fracture;

3.       Right
foot/heel pain;

4.       Knee pain;

5.       Neck pain;

6.       Mild
traumatic brain injury;

7.       Back pain;
and

8.       Major depression.

[49]        
She testified at length concerning the status
and course of her injuries from the time of the accident to her testimony in
chief at trial in April, 2012, and then provided a brief update in regarding
her injuries in the second part of the trial in February, 2013.  As a result I
heard her testify as to the various injuries numerous times and it is not easy
to summarize her complaints succinctly.

[50]        
As of the first part of the trial, in April
2012, she testified that she suffered from the following injuries and effects
of injuries, in summary:

1.    
Neck pain:  stiffness, soreness, sounds of bones
cracking, pain extending into her shoulders;

2.    
Memory difficulties; difficulty reading;

3.    
Thinking:  slow, error-prone; difficulties with
academic course-work;

4.    
Depressed mood; for which she takes the
anti-depressant and sleep aid medication prescribed by Dr. Lau (Mirtazapine),
but typically only about once per week as of the trial;

5.    
Sleep difficulties:  nightmares; thigh pain
causing wake-ups;

6.    
Unpleasant smells:  occurring approximately
weekly;

7.    
Right wrist pain: mostly with activities,
soreness with cold weather; soreness and aching in arm with writing for an
hour; difficulty carrying groceries; pain in the elbow; difficulties in doing
ceramics or sculpture work;

8.    
Back pain: upper back and low back; constant
stiffness;

9.    
Left thigh: constant, fluctuating pain, pain
even on sitting; pain at the incision point of her surgery; pain extending to
her buttock area, and down her thigh; difficulty sitting evenly or
comfortably;  wake-ups due to pain; sharp pains on walking; burning pain;
“feels like muscle tissues are tearing apart”; difficulties standing for long
periods; increased pain on walking for more than 15 or 20 minutes;  can’t walk
for more than one-half hour without resting, due to hip pain and pain in heels;

10. Left knee pain: weakness, soreness; difficulty with stair climbing;

11. Pain in both heels:  cannot walk for more than one-half hour or even
less due to pain in heels; and

12. Fatigue, lack of energy.

[51]        
She testified to headaches occurring two to three
times per week as of the summer of 2010.  I note that she also complained of
occasional headache to Dr. le Nobel when she saw him December 8, 2011 but
was not able to describe the frequency of her headaches, the last of which had
occurred two weeks before the examination, but persisted for as long as two
days.

[52]        
Her list of complaints as of early 2011, just
after removal of the hardware, was largely the same as at trial.  She testified
that there was some improvement in her condition from early 2011 to mid-2011, but
no real change in her condition from the summer of 2011 to the first part of
the trial.

[53]        
She said the pain in her heels either originated
or was much exacerbated by the functional capacity evaluation conducted by Mr. Pakulak
in September, 2011.  Although she referred to pain in both heels, in the most
recent report of Dr. Chin, she complained only of right heel pain.  The
evidence is confusing but I conclude that the issue primarily relates to the
right heel.  This is also consistent with her counsel’s final submissions.

[54]        
She provided an update on her condition as of
the second part of the trial in February, 2013.  In general, most of her
complaints have worsened, with the exception of some improvement in the pain in
her heels after obtaining treatment with orthotics from a podiatrist, Dr. Karasz. 
Her main complaint is her hip or thigh pain, which is worsening.  She testified
to some complaints that I did not hear about before, such as pain in her left
elbow, numbness and tingling in her right hand around the thumb, and dizziness.

[55]        
In her submissions, she alleges that now, more
than four years post-accident, her injuries continue unabated.  She contends
that the prognosis for recovery is poor.  She contends that due to her injuries
the likelihood of her returning to her pre-accident career is poor. She
contends that she is now in a state of near total disability and that this will
continue indefinitely.

[56]        
She contends that she is not competitively employable in the
field of fine arts, and that opportunities in field are few in any event.

[57]        
She contends that an award of damages should reflect
the devastating effect of her injuries.  On her behalf, her counsel contends
that she was a credible witness whose complaints are corroborated by medical
evidence.

[58]        
She seeks an award of non-pecuniary loss of $200,000; past loss of
earnings of $121,582; future loss of earnings of up to $855,854, costs of
future care of $52,286.94 (i.e. $52,287), and special damages of approximately
$9,500.  The total of these amounts is $1,239,219.

[59]        
The claim of $855,854 represents the present value of total future
earnings for foreign born B.C. females arriving in B.C. at age 31 and working
in highly skilled occupations, to age 70, discounted for various labour market
contingencies such as unemployment and part-time work.  Alternatively, Ms. Han
suggests that 50% of this amount or $427,927 would be appropriate.

C.             
Defence Position

[60]        
The defendants contend that Ms. Han was not a credible witness and
that much of her evidence was uncorroborated.  The defence contends that her
orthopaedic injuries (femur and wrist) have healed uneventfully, but concede that
she deserves fair compensation for these injuries.  The defence denies that she
has suffered a brain injury or that her cognitive functioning has been impaired
due to the accident injuries.  The defendants deny that the plaintiff’s other
physical complaints can be attributed to her accident injuries.  The defence
contends that the plaintiff has failed to mitigate her loss, in that she has
failed to take the anti-depressant medication prescribed for her by Dr. Lau,
and failed to follow medical advice concerning exercise and physical activity. 
The defence argues that an adverse inference should be drawn as the plaintiff
did not produce a medical report or any opinion evidence from her surgeon, Dr. Maloon,
although he testified that he was asked for a medical legal opinion.

[61]        
The defendants contend that an award of non-pecuniary loss of $80-90,000
should be made.

[62]        
They contend that the award for past loss of earnings of should be
limited to one year.  They submit that the award for past wage loss should be not
more than $27,368, based upon her immediate pre-accident earnings at JW
Research for the month of November, 2008 of $1,722 (grossed up to $2,296 for one
month) for eight months (i.e. $18,368) and approximately 50% of that loss (i.e.
$9,000) for a further four months.  They contend that no award for future loss
of earnings capacity is warranted.  Alternatively, the award for future loss of
earnings capacity should be based on the capital asset approach, and should be
in the range of 6 to 12 months of pre accident monthly earnings, or in other
words in the range of $13,776 to $27,552.  The defence made no specific
monetary submission regarding the claim for future cost of care or special
damages.

D.             
Assessment – Extent of Injuries Sustained and Prognosis

1.              
Credibility of Plaintiff’s Evidence

[63]        
It is clear that as a result of the accident the plaintiff sustained a
very serious injury to her left femur, and a moderate injury to her right
wrist.  In and of themselves, these injuries healed uneventfully, although the
plaintiff’s complaints of continued thigh and leg discomfort led to further
surgery to remove the hardware.  These were the only injuries initially
diagnosed.  Later, in 2009, Dr. Lau noted problems with sleep, and that
she was depressed.  He prescribed a low dosage (15 mg) of an anti-depressant,
Mirtazapine, to be taken at bedtime. He testified that the Mirtazapine could
also help her sleep.  As noted, he cleared her for a graduated return to work
as of July, 2009, about eight months post-accident.

[64]        
She saw an orthopaedic surgeon, Dr. Patrick Chin, on a referral
from her lawyer on February 3, 2010.  He noted that she reported a 75%
improvement in function of her left leg and 80% improvement of her right arm.  He
expected continued improvement and that she would likely regain close to full improvement
within another year, or in other words within about two years of the accident. 
In his view, based upon her injuries, one year of time away from her work as an
event planner would not be unreasonable, given his understanding that the work
required her to be on her feet at least 50% of the time.  If she were to
undergo surgery for removal of the hardware, he expected time off work and
recovery to take about three weeks.  He opined that full or partial disability
as a result of the accident would be in the range of one to two years,
depending on whether she would choose to have the hardware removed.  In any
case, he saw no risk of permanent disability.

[65]        
Her G.P., Dr. Lau, provided no prognosis.  He deferred to her
orthopaedic surgeon, Dr. Maloon, for a prognosis.  The plaintiff obtained
a report from Dr. Maloon but chose not to disclose the report.  Thus, I
have no prognosis from her G.P. or her surgeon.  Dr. Maloon was called by
the defence to give factual evidence concerning the treatment he provided
including the two operative procedures, but plaintiff’s counsel objected
strenuously to any opinion evidence from Dr. Maloon.

[66]        
No explanation was offered for the failure to reveal Dr. Maloon’s
report.  Potentially he would be a very important and valuable witness.  This
is obvious based upon his position as the treating orthopaedic surgeon, and the
reports of Dr. Lau and Dr. Chin, particularly the addendum to Dr. Chin’s
second report, where he refers to the issue of a possible small avulsion
fracture of the greater trochanter.  I am driven to the conclusion that the
evidence of Dr. Maloon which was withheld and prohibited by the plaintiff would
have been detrimental to her case:  see Buksh v. Miles, 2008 BCCA 318, at
para. 35.

[67]        
From a physical point of view, the plaintiff’s injuries, while serious,
ought to have resolved completely or virtually so long ago.  Instead, the
plaintiff contends that 4 ½ years after the accident she remains severely
injured and disabled, and that her condition is essentially permanent.

[68]        
Her contentions of ongoing pain long after her injuries ought to have
resolved rest largely on her own credibility.  Accordingly, critical evaluation
of her credibility is essential to a proper assessment of her loss and the
damages that should fairly be awarded.

[69]        
In this context I must be mindful of the words of caution expressed by
McEachern C.J.S.C., as he then was, in Price v. Kostryba, 70 B.C.L.R.
397 at 399, [1982] B.C.J. No. 1518 (S.C.) [Price], which have been
applied many times since (for example, see Edmondson v. Payer, 2012 BCCA
114, [2012] B.C.J. No. 462, at para. 2).

[70]        
While I did not consider Ms. Han to be a completely unreliable
witness, in general I formed the view that the reliability of her testimony is
doubtful and has to be approached with a great deal of caution.  I formed the
view that parts of her evidence, particularly her evidence concerning her pre-accident
work and career, were tailored to conform to her theory that but for the
accident she would have continued in her career as an event planner, and that
this career is no longer open to her due to her injuries.  I formed the view
that she has a tendency to exaggerate her injuries and their consequences, in
general, but also in part for the purpose of enhancing her monetary claims.

[71]        
As noted the plaintiff contends that but for the accident she would have
continued in her career pursuits as an event planner.  I have difficulty
accepting this central contention.

[72]        
The only reliable evidence of prior work in that field is with FNESS for
about a year pre-accident.  That was a very small organization.  She reported
to Mr. Pakulak that the job was about half office work, and the other half
related to preparing event rooms and overseeing the events.  I am satisfied
that there was some event planning involved, but it seemed to me that much of
the “event” work was merely attending events organized by others.  She left
that job in July 2008 to take the temporary position at the Beijing Olympics
and never re-applied.

[73]        
Her decision to leave FNESS in order to take a temporary position at the
Beijing Olympics is odd, in view of her stated career aspiration.  She did not
seek a temporary leave of absence from FNESS.  Following her return from
Beijing, shortly before the accident, and after a vacation, she chose to pursue
her previous work with JW Research instead of re-applying at FNESS.  Her
decision to take the work at the Beijing Olympics was not in keeping with her
stated career goal.

[74]        
In her evidence she consistently downplayed or denied a pre-existing,
pre-accident interest in Art or Fine Arts or design as a career.  But soon
after the accident Ms. Han began pursuing activities and studies in
relation to Fine Arts and design and has made relatively little effort to
resume a career in event planning.

[75]        
In reality her career was adrift prior to the accident.  Her reasons for
leaving China to take the MBA in France are vague and unpersuasive.  At trial,
she said that the degree could enhance her career as an event planner.  But I
think the reasons she gave Dr. Posthuma are probably more accurate.  She
told Dr. Posthuma that she was attracted to the culture and artistic
opportunities in Paris, and she also wanted to learn French in order to help
with immigration to Canada, through Quebec.  I accept that she also told Dr. Posthuma
that she really would have preferred to study art in Paris.  Her reasons for
immigrating to Canada are vague, as well.  She simply said that she wanted to
practice her English.

[76]        
The credit card sales work she did at Canadian Tire required no special
academic training.  It was sales work of a fairly menial kind. She was vastly
under-employed in that occupation.  She made minimal efforts to return to work
at JW Research after the accident. I don’t accept that she had a sincere desire
to return to that occupation.  This is supported by the delay in her efforts to
attempt to return to that work as shown in the records of Karp Rehabilitation,
with which she agreed, and the brevity of her two attempts.  The second attempt
was long delayed and occurred just before the trial.

[77]        
Other than her job at FNESS, there is little corroborative evidence of a
sustained interest on her part in event planning as a career, before or after the
accident.  All of her considerable educational efforts subsequent to the
accident have been in the Fine Arts and design field.  Few of the jobs applied
for after the accident were in event planning.  She took a course in event
planning at Vancouver Community College prior to the accident, but no courses
in this field or connected to this field since the accident.

[78]        
In her evidence in chief she said that she took the job in Beijing in
order to “enhance my skills in event planning” and that she was an “event host”
while there.  She provided the same description to Dr. Chin.  However the
work was largely that of a tour group guide.  There was no event planning
involved.  Ms. Cathy Joyce, her supervisor there, described the position
as “senior coach host”.  Her job was to coordinate the tour for a group of
about 30 guests who were travelling in a bus (coach) to various events and
activities.  The work was exhausting and challenging but had little or nothing
in the way of event planning about it.  Similarly she testified that her brief
work in relation to the Aquarium event in February 2010 involved logistics and
planning, but I concluded that there was no significant planning work on her
part, as she reluctantly agreed.

[79]        
In my view, the accident provided Ms. Han with an opportunity to
change careers from business, marketing or sales to something in the field of
fine arts and design, an interest she had long had but which she had likely
suppressed as a career option, as she was either discouraged from doing so (as
she told Dr. Posthuma, but denies saying), or it seemed impractical to
her, which of course it may well be.  Her efforts to build her skills in an
area of genuine strong interest for her are entirely laudable.  She has
performed exceptionally well in her fine arts and design studies, although she
has struggled to some extent in the English courses.  What troubles me is her
denial of her obvious interest in a different career than what she was pursuing
before the accident.

[80]        
On several occasions she denied the validity of statements attributed to
her by medical professionals.  Allowing fully for the possibility of language
difficulties, I think it unlikely that they so frequently misunderstood her or
misrecorded what she said.  I formed the view that in many instances she simply
prefers now to resile from her statements or at least to re-interpret them.  For
example:

1.     She conceded
that she might have said to Dr. Maloon on February 1, 2010 that she was
able to return to work but was having difficulty finding a job due to the
economic downturn.  At trial she testified that if she said that, it was not
true.

2.     She agreed
that she told Dr. Chin on February 16, 2012 that her leg lower extremity
symptoms were 80% resolved.  On re-examination she testified that she was referring
only to her knee.  This would not make much sense in view of the nature of her
injuries, Dr. Chin’s expertise, and his evidence generally.  She also
denied telling Dr. Chin on that occasion that her primary complaint was
her right heel pain, and that her secondary complaint was her left hip.  She
testified that her main complaint was in fact her hip at that time.  In overall
terms her hip pain is her most significant area complaint, but I accept that
when she saw Dr. Chin on that occasion that is not what she said.  The
point is quite central to his report.

3.     Dr. Chin
also reported that she said she was planning to complete a diploma in Fine Arts
some time in 2013, and that she was hoping that her career prospects in Canada
would improve once she obtained the diploma.  At trial she denied telling Dr. Chin
that she was planning to complete a diploma in Fine Arts.  In her evidence she
said that she was studying Fine Arts for therapeutic reasons and had no
intention to obtain a diploma.  Later she modified her evidence by saying that
she had no intention of completing the program at Kwantlen University.  I
infer that this adjustment in her evidence was made because her enrollment in
the program at Emily Carr renders the assertion that her studies in fine arts are
only for therapeutic reasons no longer credible.

4.     On the
basis of the reports of several professionals, it appears that she did not
mention to them that she had done event planning work while employed in China. 
At trial she suggested that perhaps she did mention her Chinese event planning
experience to them, but they did not record that in their reports. I consider
this unlikely.

5.     She
testified that Dr. Posthuma misunderstood several things she told him
about her background, in particular (as noted) that she would have preferred to
take an art program in Paris but was unable to qualify due to a lack of formal
art education.  She maintains that she said only that she was interested in art
as a hobby.  I don’t accept that Dr. Posthuma misunderstood her or erred
in recording her statements.

[81]        
She was frequently argumentative and non-responsive with counsel during
the course of her prolonged cross-examination.  In general she was reluctant to
admit matters that she perceived were detrimental to her case, unless pressed
or presented with evidence that would be difficult to refute.  For example, she
agreed that it “might” be true that she did not search for work between late
February and late June, 2010.  As she was on vacation in Greece, the Middle
East and China for most of this time, this would very likely be quite true.

[82]        
In general, as defence counsel contended, it seemed that Ms. Han often
had an ameliorating explanation when something appeared to be detrimental to
her case.  For example, while she conceded that she was able to travel alone
for three and one half months in early 2010, she said that she wanted to work,
but was depressed and the trip was therapeutic.  This neatly explains a long
period in which she made no efforts to re-enter the workforce.  She explained
how she was able to manage such an arduous trip.  She testified that she had
problems.  She testified that she had to drag a suitcase instead of using a
backpack as she had done in the past.  On one occasion she left a suitcase in a
taxi, and she had not had such lapses in the past. She was fatigued and needed
to sleep a lot.

[83]        
Another example is in relation to her career change, and associated
academic and artistic achievements, which she denied or downplayed.  I accept
that, as she repeatedly asserted, for her, artistic pursuits and frequent travel
had therapeutic benefits. But I do not accept that therapy is the only or primary
reason for her limited efforts to become re-employed in work related to her pre-accident
career.  The fact is that she enjoys art, and travel, and is not as interested
in business, marketing or administration work.

[84]        
Her list of complaints has grown longer with time.  Her complaints of
headache, neck pain and shoulder pain were not recorded by treating professionals
until 2011.  The extent of this is troubling.

[85]        
Her refusal to allow the court to have the benefit of the opinions of
her surgeon supports my overall concerns about the credibility of her evidence
and her claims.

[86]        
There was a lack of corroboration of her evidence where I would have
expected it.  For example, where she contends that her mental functioning has
diminished due to her accident injuries, I found it odd that she did not
produce transcripts or documents relating to her post-secondary education in China. 
There was no corroborating evidence concerning her work in China from 2000 to
2005, which she describes as “marketing manager”.  This appears to have been
her most significant pre-accident job.  I had difficulty understanding how her
decision to obtain the MBA in Paris and her decision to come to Canada fit
within her stated career objectives.

[87]        
I was very surprised to hear only on cross examination during the second
part of the trial that she was in the second year of a bachelor program at Emily
Carr University, and that she was doing very well in her studies.

[88]        
Finally, my own concerns about the credibility of the plaintiff’s
complaints are amply supported by the views of Dr. Allan Posthuma.

[89]        
Dr. Posthuma is a psychologist, and neuropsychologist.  His
examination and assessment was thorough.  He conducted interviews and
assessments of Ms. Han over the course of three days, July 11, 12 and 29,
2011, and provided a helpful, well-organized report.  Although he was retained
by the plaintiff, I formed the view that his evidence was fair, impartial, and
reliable.  I accept his conclusions, which accord with my own views based upon
the totality of the evidence in this case.

[90]        
Dr. Posthuma observed that Ms. Han performed very well on
tests of cognitive ability, such as intelligence (“IQ”), working memory and
processing speed.  From this he concluded that it is unlikely she is suffering
from any residual effects of possible head injury in the accident.  He considered
her cognitive ability test scores to be valid.  However, he noted that Ms. Han
was very anxious about her test performance and often assumed she was doing
poorly when this was not the case.  She was quick to attribute mental lapses
that she had experienced in the past (such as the incident involving the
suitcase left in a taxi) to some insidious process such as a brain injury from
the accident.  Dr. Posthuma’s view is that she did not suffer a brain
injury in the accident, but even if she did (as Dr. Ancill diagnosed), she
would have recovered from it by the time of his testing and the trial.

[91]        
In Dr. Posthuma’s opinion, objective testing of her emotional or
psychological complaints, including her complaints of pain, was problematic, in
that the tests indicated that Ms. Han likely overstates the severity of
her complaints.  The tests indicated that Ms. Han endorses a large number
of symptoms that are unlikely to have any neurological or physiological basis. 
She restricts herself from engaging in normal activity for fear of exacerbating
her condition.

[92]        
Dr. Posthuma observed that she is reluctant to accept her academic
success as progress.  He noted that assessment of her emotional situation is
complicated by her circumstances in being a recent immigrant to Canada, who came
expecting improvements in her personal and professional life, which have not
occurred, in part due to the effects of the accident.  Advice she was receiving
in China on her visits there is compounding her anxiety, and in particular,
that the accident would result in permanent problems, especially pain.  Lack of
money and the need to borrow from her family adds to her stress.

[93]        
In Dr. Posthuma’s view, Ms. Han suffers from depression.  Her
self-report indicates severe depression, while Dr. Posthuma’s examination
indicates moderate depression.

[94]        
Dr. Posthuma’s opinion is that her depression and anxiety are
caused both by the circumstances of her recent immigration, (i.e. her concerns,
disappointments, fears for her future, financial stress) and the effects of the
accident.  Her life circumstances at the time of the accident probably rendered
her more vulnerable to developing psychological problems as a result of the
accident. While she has recovered from her physical injuries, she has developed
psychological problems related to depression and anxiety.  She has a chronic
pain problem.

[95]        
He noted that Ms. Han has developed a number of non-productive
beliefs that have exacerbated her problems.  Specifically, he diagnosed an
Adjustment Disorder with Anxiety and Depression, and a Pain Disorder Associated
with Psychological Factors.  He recommended treatment by way of a comprehensive
pain management program.  He recommended an intensive four to six week program
in a daycare facility would be needed in order to “overcome the intense anxiety
and preoccupation Ms. Han has with regard to her situation.”  In his view
a program of periodic treatments once or twice per week for a limited period of
time would be insufficient.

2.              
Findings – Injuries Sustained and Prognosis

a)             
Left Femur

[96]        
Ms. Han continues to suffer from residual pain and discomfort from
the very serious injury that she sustained to her left femur.  In her testimony
she usually localized the pain to her left hip area.

[97]        
There is no doubt that the femur fracture was a very serious injury.  Dr. Chin
stated in his evidence at trial that, “…if you look at the epidemiology of
femur fractures, and femur fractures are not a small injury, it’s a big injury,
potentially career ending injury.”

[98]        
In Dr. Chin’s second report he states that recent x-rays of her hip
showed a small bone fragment near the top of the femur (greater trochanter)
which might have been sustained during the hardware removal operation.  He
doubted whether further surgery to correct it would be worthwhile, but
suggested that she review the x-rays with her orthopaedic surgeon (Dr. Maloon)
for an opinion “on the radiographic finding that seems to correlate with her
ongoing issues with her hip pain.”

[99]        
These comments are set out in an addendum to his report dated March 5,
2012, shortly before the trial.  The addendum was served late on defence
counsel.

[100]     There is
no evidence that the plaintiff consulted with Dr. Maloon about the bone
fragment.  As noted, Dr. Maloon provided a medical-legal opinion at some
point in time, but the plaintiff chose not to disclose the report. Dr. Maloon
testified at trial concerning his medical treatment of the plaintiff.  However
plaintiff’s counsel objected to questions to Dr. Maloon from defence
counsel that would have been in the nature of opinion evidence about bone
fragments, without prior notice of such evidence.  Dr. Maloon was not
given an opportunity to comment on the recent x-rays, and specifically as to
whether he agrees that there is a small bone fragment, and more importantly what,
if anything, its significance might be.

[101]     The
plaintiff carries the burden of persuasion, and where she has chosen to not to
present evidence likely to be relevant on the point, I am not persuaded that I
can place any weight on the evidence regarding the bone fragment.  In the
result whether it exists is somewhat uncertain, but in any event whether it is
relevant to her condition is unknown.

[102]     However,
whether the bone fragment issue is significant or not, there is no doubt that
the plaintiff continues to suffer ongoing pain and disability in her hip area caused
by the accident injuries.

[103]     She has a very small increased risk of developing post traumatic
degeneration in the left hip and right wrist, relative to the general
population with no prior injury in these areas.

b)             
Right Wrist

[104]     She
sustained an uncomplicated fracture of her right wrist which healed
uneventfully.  Dr. Chin does not mention this injury in his latest
report.  She continues to complain of pain, discomfort, weakness, numbness,
tingling and limitation of function relating to this injury, in both the wrist
and hand.  Dr. le Nobel has suggested a trial of wrist splinting for 6 to
8 weeks.  There is no evidence that this has been attempted.

c)             
Right foot/heel pain

[105]     Dr. Chin
states that her right heel pain is “has less to do with the subject accident
and more to do with her overall poor state of physical fitness”.  He diagnoses
plantar fasciitis related to weight gain and change in gait resulting from her
difficulties with her left leg.  In my view, causation may be indirect but it
is not in question from a legal point of view.  Dr. Chin recommended an
assessment with a podiatrist or orthotist.  He recommended active stretching
exercises and more importantly, an active exercise program, as Ms. Han has
suffered “significant mental and physical reconditioning since the subject
accident.”

[106]     As noted, Ms. Han
has recently seen a podiatrist and she reports improvement in her heel
complaints.

d)             
Knee pain

[107]     Ms. Han
complains of pain in her knees, particularly the left.  She reported
improvement in her knee pain after the second surgery but says that lately it
has gotten worse.  There is no evidence of any specific physiological cause for
her knee pain at this time.  An MRI of her left knee conducted February 9, 2010
showed no internal derangement.  I received no prognosis specific to her knee
complaints.

e)             
Neck pain, Headache, Pain in Back, Shoulders, Elbows

[108]    
She complains of neck pain, as previously described.  She has complained
of headache in the past but I am unsure of the present status of this
complaint. In relation to these issues, Dr. le Nobel provided the
following diagnosis, which I accept:

I diagnose her
headache as cervicogenic headache or pain referred to her head from the
cervical spine. She has neck pain and restricted movement, which I diagnose as
myofascial pain (Myofascial pain is pain understood to be generated in injured
musculoligamentous soft and connective tissue structures. These structures are
at times deep to the body surface and not readily evaluated with techniques
such as inspection and palpation. Myofascial pain is felt to be associated with
chronic pain).

[109]     Dr. Ancill
also notes complaints of headache in his report.

[110]     Ms. Han
also complains of back pain as previously described. It is not one of her major
complaints.  Dr. le Nobel and Dr. Chin do not mention it in their
reports.

[111]     Dr. le
Nobel recorded complaints of pain in both shoulders and in both elbows as well.

[112]     All of
these complaints are of a soft tissue, chronic pain variety.

f)               
Mild Traumatic Brain Injury

[113]     The plaintiff contends that she suffered a mild traumatic brain
injury (“MTBI”) in the accident.  The defence takes issue with this diagnosis.

[114]     The diagnosis of MTBI rests largely on the opinion of Dr. Raymond
Ancill, who examined Ms. Han January 12, 2012, some 38 months
post-accident.

[115]     Dr. Posthuma’s opinion is that she likely did not
sustain a brain injury in the accident, but in any event she was unlikely to
continue to be suffering from any residual effects of possible head injury in
the accident, (specifically, MTBI or Post-Concussion
Syndrome).  The latter point is supported by the physiatrist, Dr. le
Nobel, who states that generally one would not expect ongoing cognitive
deficits on the basis of traumatic brain injury with such a short period of
discontinuous memory three years after the trauma.

[116]     In Dr. Ancill’s opinion, Ms. Han sustained a concussion in
the accident and she suffers from post-concussion syndrome.  He states that she
sustained an MTBI in the accident.  It seemed to me that Dr. Ancill did
not differentiate between the terms “concussion” and “MTBI”.  In any event he
disagreed with the conclusion of Dr. Posthuma that she was not suffering
from the residual effects of a brain injury.

[117]     Dr. Ancill also diagnosed moderate to severe depression,
related to her MTBI and chronic pain.

[118]     On the evidence as a whole, I think it is unlikely that Ms. Han
suffered a concussion or MTBI in the accident.

[119]     There is no evidence of any physical trauma or injury of any kind at
all to her head in the accident. She did not lose consciousness.  Dr. Ancill
relies on Ms. Han’s statement that she has no recollection of being struck
to conclude that she suffered retrograde amnesia.  He relies on her evidence
that she had a “brief gap in awareness” in that she “came to” on the pavement
10 feet from the point of impact, to indicate that she suffered post traumatic
amnesia.

[120]     However, on the evidence she last noticed the vehicle that struck
her when it was on the opposite side of the intersection from her, and did not
see it again prior to the collision.  She was not watching the vehicle and as I
have said she had no obligation to do so.  Therefore it is not surprising that
she would not recall being struck, as it was completely sudden and unexpected.

[121]     In her evidence at trial she said that she could not actually recall
where she landed in relation to the point of impact, and she acknowledged that it
may be that the reference to 10 feet came from something someone said to her.  The
defendant could not provide an estimate of this. Mr. Singh adopted the
evidence in his statement that Ms. Han was likely thrown one or two feet
by the impact.  This could be an underestimate as he also said that the SUV
that struck her was going “fast”.  However, there was very little if any damage
to the SUV.  In summary, the reference to “10 feet” is not likely to be
accurate.

[122]     Dr. Ancill says that her memory post impact is fragmented and
discontinuous. He does not provide the details of this.  Dr. Chin mentions
in his first report that “she is somewhat amnestic of the event” but also
provides no details of this.  On her evidence, she recalls “coming to” or
“waking up” on the pavement, which is what I would expect given the nature of
the accident, even without any lapse in memory.  If there was any gap in
awareness at all it was momentary.  She does not recall all the details of what
next occurred but this is also not surprising, given her shock and pain. As
noted, there is no evidence of an actual loss of consciousness.

[123]     In short the circumstances of the accident do not suggest that a
concussion or physical injury to the brain was sustained.

[124]     Dr. Ancill also relies on the development by Ms. Han of a
“Post-Concussion Syndrome” to indicate that she suffered a concussion. 
However, he concedes that Post-Concussion Syndrome is non-specific and can
arise from other trauma.  He states that, by itself, it should not be used to
diagnose a brain injury, and her symptoms are inter-related with her pain,
anxiety and depression.

[125]     He relies on her neuropsychiatric complaints, such as her reported cognitive
and emotional problems.  He did not administer neuropsychological tests.  However,
as I have said, in the context of all of the other evidence, I accept Dr. Posthuma’s
opinion that she has a tendency to exaggerate her problems, so her complaints
reported to Dr. Ancill are somewhat unreliable.  His opinions rest heavily
on her self-reports.

[126]     Dr. Ancill also relies on her complaints of bad smells
(parosmia) as indicative of a brain injury sustained in the accident, although he
says this phenomenon can arise from other causes.

[127]     Dr. Ancill disagreed with Dr. Posthuma that she did not
continue to suffer cognitive effects of a possible brain injury, as he inferred
that pre accident she would have likely been in the top 99 to 100 percentile of
intellectual ability, based upon her ability to speak four languages and obtain
an MBA in Paris.

[128]     Dr. Ancill’s inference concerning her pre-accident ability is questionable.
He assumed the MBA studies were in French, rather than English, although he
said that in either event the degree was in a non-native language.  This is
quite true, however, Ms. Han already had two diplomas in English language
in China, and had worked as a bilingual secretary in China.  She does not claim
fluency in French.  The MBA in Paris was limited in scope and content.  Her
marks were average.  Dr. Ancill was not aware of how she performed in the
MBA program.  Dr. Ancill did not have the benefit of any academic
transcripts or records.  Ms. Han has not produced transcripts or any other
evidence concerning her educational achievements in China, which could have
provided support for Dr. Ancill’s inference.

[129]     Dr. Posthuma also testified that if she suffered an MTBI she
would have recovered from that within three to six months.  In a similar vein
he was also of the view that after about six months from the accident
neuropsychological testing is not diagnostic of residual effects of brain
injury, as poor scores could be caused by emotional factors.  In general then,
he was highly skeptical of a diagnosis of brain injury in the circumstances of
this case.

[130]     Dr. Ancill’s report is described as “Preliminary” and he
repeated this qualification several times in his testimony.  I had difficulty
understanding the scope of this qualification, in relation to his opinions.  Dr. Holliday’s
report refers to Dr. Ancill’s diagnosis of MTBI as “presumptive” and I
adopt that characterization.  In any event, Dr. Ancill diagnoses moderate
to severe depression, for which he recommends treatment by way of psychiatric
treatment and psychological therapy.  He states that she also suffers from
anxiety and chronic pain.  He recommends repeat neuropsychological testing
after successful treatment of her Major Depression and anxiety.

[131]     On the basis of all the evidence, therefore, I conclude that on a
balance of probabilities Ms. Han did not sustain a brain injury in the
accident.

[132]     I also accept the alternative view supported by the evidence of Dr. Posthuma
and Dr. le Nobel that if she did suffer MTBI, it would not have caused
cognitive deficits persisting to trial.  However, this does not mean that he
plaintiff’s cognitive performance is unaffected by her depression.

g)             
Psychological Consequences

[133]     Aside from
her femur injury, the most substantial consequence of the accident for the
plaintiff is the development of moderate to severe depression.  As noted, Dr. Posthuma
diagnoses an Adjustment Disorder with Anxiety and Depression, and a Pain
Disorder Associated with Psychological Factors.  Dr. Ancill does not agree
with these conclusions, but both agree that she has depression, anxiety, and
chronic pain.  They agree that treatment is required for her psychological or
psychiatric condition, although they disagree as to the nature of the treatment
required.

[134]    
I prefer the evidence of Dr. Posthuma to that of Dr. Ancill. I
formed the view that his assessment was more careful and thorough. I have
rejected Dr. Ancill’s conclusion that the plaintiff suffered an MTBI.  I
found Dr. Ancill’s report somewhat disorganized and his evidence lacking
in clarity in some areas. He has qualified his opinions in an uncertain
fashion.  His diagnosis of brain injury is central to his prognosis. His
prognosis is of limited utility, as he states in his report:

…the prognosis for further
recovery from any residual problems related to her MTBI must be considered as
likely poor however, as stated earlier, it is not possible to assess how much
of her current state is due to a brain injury.  It is likely that with
successful treatment for her significant depression, anxiety and pain that
there would be symptomatic improvement but I cannot say that this would be
translated significant functional recovery.  This will depend on the residua,
if any, from the brain injury.

[135]     Dr. Dean
Powers, a psychologist, provided an opinion with respect to Ms. Han’s
employability, and for that purpose conducted aptitude and achievement tests on
September 23, 2011.  In the achievement tests Ms. Han scored at an
advanced level in math, and relatively poorly in academic fluency and reading,
especially when compared with others at her education level of 18 years.  Her
overall scholastic aptitude was average as compared with Grade 12 students
planning to enter the workforce, and poor as compared with Grade 12 students
planning to go to university.

[136]      She was
also seen by Dr. Stephen Holliday, a Psychologist, who saw her January 13,
2012.  He was asked by plaintiff’s counsel to perform a neuropsychological
evaluation.  He conducted a limited, preliminary examination only.  Upon
receiving the report of Dr. Ancill and the diagnosis of MTBI and Major
Depression, requiring treatment, he considered it imprudent to conclude his
examination.  He also noted the “puzzling and somewhat paradoxical results”
obtained by Dr. Posthuma and Dr. Powers on their cognitive function
and vocational tests.  In his view, a more thorough and detailed analysis is
required.  He suggested that she be re-assessed at such time as Ms. Han’s
psychiatric condition is stabilized. His own preliminary assessment showed some
cognitive deficits in some areas, with significant variability in her
performance.  In his view, she showed a decline in her (assumed) pre accident
cognitive performance to an extent greater than what would be expected by the
presence of depression alone.  Generally, he supported the opinion of Dr. Ancill
that she suffered an MTBI; however, in view of the limited scope of his
assessment he provided no prognosis.

[137]     I place
only very limited weight on the report and opinion of Dr. Holliday.  He
relied heavily on the opinions of Dr. Ancill including the diagnosis of
MTBI.  Like Dr. Ancill, he seems to have assumed that her pre accident
function was higher than I am prepared to conclude, as shown for example by her
MBA degree, which he erroneously thought was obtained in French.  His examination
and report are preliminary and limited, therefore tentative only.

[138]     Dr. le
Nobel diagnoses chronic pain, that is, pain persisting for longer than tissue
healing is felt to require, which is generally within 10 to 12 months of
injury. He noted her reports of depression and difficulties with sleep, and
suggested that she be seen by a psychiatrist.

[139]     As noted, Ms. Han
reports memory and cognitive difficulties since the accident.  However she has
a tendency to overstate these problems and to understate the significant academic
success she has been able to achieve post-accident.  She says that she has to
work much harder than she used to.  I accept this to some degree but, as noted,
her academic performance on what I perceive to be a somewhat light program in
Paris was only average, and her prior records are not in evidence, so her prior
level of academic function is difficult to assess.

[140]     A long-time
friend, Ms. Tina Chen, corroborated that she has memory problems and is
easily distracted. She also noted a significant change in her mood.  She
testified that Ms. Han was previously cheerful, sociable, and energetic.  She
is now depressed, irritable, easily fatigued and lacking in stamina.  Cathy
Joyce, her supervisor from the Beijing Olympics testified to her stamina,
energy, and overall high level of functioning in demanding circumstances
there.  She performed well in her previous employment at JW Research (Canadian
Tire) and at FNESS.

[141]     The basic
principles of law relating to the questions of causation and mitigation in
relation to psychological injuries are set out in Maslen v. Rubenstein
(1993), 83 B.C.L.R. (2d) 131 (C.A.), at paras. 7 to 11.

[142]     On all of
the evidence, I accept that Ms. Han suffers from chronic pain, anxiety,
and moderate to severe depression caused by the accident injuries.  I accept
that she needs treatment for these conditions.  I find that her mood has been
altered and her energy level has diminished.  I also accept that to some
extent, due to her depression, anxiety and chronic pain, her cognitive functions
have been detrimentally affected.  The degree of decline is hard to gauge on
the evidence, but in my view it is probably not as great as the plaintiff
herself fears.

[143]     Her
condition has restricted her ability to participate in and enjoy recreational activities.

[144]     The plaintiff concedes that the evidence does not support a
diagnosis of post-traumatic stress disorder (PTSD).

[145]     The
prognosis for her chronic pain and psychological difficulties is unclear.  Dr. le
Nobel’s prognosis is generally negative.  He anticipates that her disability
will “remain for the future”.  He states, “Generally when patients have pain
and disability persisting for more than two years following trauma, the
likelihood is that resolution will not occur.” By “resolution” he means complete,
100% resolution.  However, as noted, he recommends psychiatric treatment.  He
notes that she is deconditioned. He recommends treatment at a chronic pain
multidisciplinary exercise based rehabilitation facility, followed by a
supervised comprehensive exercise program. He says his report is in some
measure an interim report as more can be done for her in terms of
investigations and treatment.  He suggests that a further review in 12 to 18
months could assist in providing a more complete prognosis.  Dr. Ancill
thinks her prognosis is poor, but his report is “preliminary” and his opinions are
qualified.  Dr. Holliday’s opinion was also preliminary only.  Dr. Chin’s
most recent report is negative, based in part on her poor performance on the
functional capacity evaluation.  He notes as well that she is physically
deconditioned. Dr. Posthuma suggests treatment but provides no prediction
or prognosis for recovery.

[146]     There is a
clear consensus that the plaintiff requires treatment that would involve both
physical exercise and psychological treatment, at least.  Dr. Posthuma
observed that Ms. Han feels quite helpless in dealing with her fears,
anxieties and physical problems. She restricts herself from engaging in normal
activity for fear of exacerbating her condition.

[147]     To date
she has had little in the way of treatment as suggested for her.  She has not
engaged in an exercise program.  In the fall of 2012 during the adjournment of
the trial she saw a psychologist, Dr. Tigerson Young, on four occasions.  He
prepared a report which is not in evidence as opinion evidence.  I have as fact
that he recommended further psychological treatment.

[148]     In summary,
treatment options remain unexplored, the medical opinions are mostly
preliminary, and I have no definitive prognosis.  In my view, the plaintiff has
some measure of control over the outcome.  She likely overstates the degree of
her difficulties and disability.  Nevertheless there is clearly a substantial risk
that her chronic pain and depression will continue indefinitely.

3.              
Failure to Mitigate

[149]     The
defence contends that the plaintiff has failed to mitigate her loss, in failing
to take anti-depressant medication as prescribed and failing to exercise or
participate in the kind of exercise program recommended by Dr. le Nobel.

[150]     The onus
is on the defendants to prove that the plaintiff could have avoided all or a
portion of her loss. In order to prove a failure to mitigate, the defendants
must do more than show that the plaintiff failed to engage in treatment that
could or might have been beneficial: Gregory v. Insurance Corporation of
British Columbia, 2011 BCCA
144, at para. 56.  The defendants must prove two things:

1.     That the
plaintiff acted unreasonably in failing to pursue a course of medical treatment
recommended to her by doctors; and

2.     The extent
to which, if any, the plaintiff’s damages would have been reduced had she acted
reasonably: Chiu v. Chiu, 2002 BCCA
618, at para. 57.

[151]     Dr. Lau
prescribed Mirtazapine in late 2009, as an anti-depressant and sleep aid, 15
mg. to be taken at bedtime.  She has taken this medication infrequently.  Dr. Posthuma
is of the view that medication is not the solution for her problems.  Dr. Ancill
strongly disagrees, and recommends medical treatment.  He also says that 15 mg.
is too low a dose to have any therapeutic value.

[152]     The
defendants have not satisfied me that in failing to take sufficient quantities
of Mirtazapine the plaintiff has unreasonably failed to follow the advice of
her medical advisors, and that had she done so, she would have avoided some of
the loss.

[153]     The
evidence is clear that the plaintiff has limited herself in relation to
physical activities and exercise.  However, she has done so in part due to her
depression and psychological dysfunction, in addition to the physical injuries
she sustained.  Her physical deconditioning and her psychological problems are
inter-related.  She is not likely to be able to address her need for physical
exercise without getting treatment for her depression.  She has not yet had
adequate treatment for her depression and anxiety.  This is consistent with the
opinion of Dr. le Nobel.  I am satisfied that as of the commencement of
the trial the medical advice the plaintiff received makes the need for
treatment involving exercise clear, and that the advice is reasonable and has a
reasonable prospect of benefit. I am not satisfied however that the defence has
established that, prior to the trial, the plaintiff has unreasonably failed to
follow advice in relation to this and that had she done so, she would have
avoided some of her loss.  In my view, the long delay in concluding the trial
should not affect this conclusion.

4.              
Summary: Extent of Injuries Sustained and Prognosis

[154]     In
summary, the plaintiff was physically healthy prior to the accident.  She
suffered a very serious injury to her femur and a moderate injury to her
wrist.  These injuries have healed uneventfully from a physical point of view, after
two surgeries to her leg.  No specific ongoing organic cause for her hip pain
has been established.  Although she likely overstates her degree of disability,
she has developed chronic pain, in relation to several areas of her body.  She
has depression and anxiety.

[155]     Her major
complaint of pain is with respect to her left hip.  When she saw Dr. Chin
February 3, 2010, about 14 months after the accident, she had 75% to 80%
improvement in her orthopedic injuries, but since then she has development
several new pain complaints and, overall, her condition has not improved.  Her chronic
pain and depression have resulted in altered mood, lack of energy, fatigue,
irritability, and some cognitive difficulties.

[156]     The
accident caused a drastic change to the plaintiff’s pre-accident health,
lifestyle, and enjoyment of life.  I accept that to date, more than four years
post-accident, the plaintiff continues to suffer significantly from the effects
of the accident.

[157]     However,
the assessment of her loss is complicated by the fact that her evidence is
somewhat unreliable.  Further, treatment options have not yet been explored,
and the prognosis is uncertain.  There is a substantial risk of pain,
suffering, and disability persisting indefinitely.  The preliminary prognosis
for complete recovery is negative.  The potential extent of recovery is
unclear.

[158]     The extent
to which her injuries have affected her career and her work capacity will be
discussed in further detail below.

IV.           
Assessment of Damages

A.             
Non-Pecuniary Damages

[159]     The
general principles underlying an award of non-pecuniary damages are well
established. I recently summarized them in Gillam v. Wiebe, 2013 BCSC
565 at paras. 68 -71, and so I do not need to repeat myself in that
respect here.

[160]     As noted,
the plaintiff argues for an award of non-pecuniary damages of $200,000.  The
defence submits that an award of $80,000 to $90,000 would be appropriate.

[161]     Each case
is unique of course, and must be individually assessed in relation to the
relevant factors.  Nonetheless, other decisions are useful as guidance in
helping to establish the appropriate award.

[162]     The
plaintiff relies on the following authorities in relation to non-pecuniary
loss:

1.     Scoates
v. Dermott, 2012 BCSC 485;

2.     Towson
v. Bergman et al, 2009 BCSC 143;

3.     Mohan
v. Khan, 2012 BCSC 436;

4.     Prince-Wright
v. Copeman, 2005 BCSC 1306;

5.     Taylor
v. Depew, 2012 BCSC 1403;

6.     Marois
v. Pelech, 2009 BCCA 286;

7.     Felix
v. Hearne, 2011 BCSC 1236;

8.     Danicek
v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111;

9.     Kean v.
Porter, 2008 BCSC 1594;

10. Alden v. Spooner, 2002 BCCA
592;

[163]     The
defence relies upon:

1.     Roman
v. Edmondson, 2004 BCSC 1631;

2.     Falati
v. Smith, 2010 BCSC 465.

[164]     I have
considered all of the cases cited.  The cases cited by the defence are not comparable
and are therefore not of assistance to me here.  For example in the more recent
case, Falati, the plaintiff, a pedestrian, suffered a crush type
fracture to his left tibia and a fracture of the fibula.  He was 30 or 31 years
of age at the time of the accident.  He continued to suffer from foot and ankle
pain at trial some 2 and ½ years post-accident.  He suffered from symptoms of
anxiety and depression, but by the time of trial his mood was much improved and
his symptoms of anxiety were more or less resolved within two years of the
accident.  There was a possibility, not a probability, of permanent disability,
to a degree, in relation to his foot and ankle.  Mr. Justice A. Saunders
assessed non-pecuniary loss at $85,000.  A moderate award ($75,000) was made
for loss of future earning capacity.

[165]     In Gravelle
(Litigation guardian of) v. Seargeant, 2013 BCSC 536, a decision released
after the conclusion of this trial, the plaintiff was 16 years of age when as a
pedestrian he was struck by the vehicle driven by the defendant.  The trial
took place four and one half years after the accident.  The plaintiff sustained
a comminuted (that is, broken in a number of places) fracture of his right
femur.  The fracture itself healed well, but he sustained injuries to his lower
back, knee and right groin that persisted.  The evidence established that he
would suffer some measure of pain for the rest of his life.  He was stoical. 
He did not suffer depression, brain injury or mental consequences.  He was not
academically inclined. He suffered diminished earning capacity.  The non-pecuniary
award was $85,000.

[166]     On the
other hand, the cases relied upon by the plaintiff where large non-pecuniary
awards have been made involve cases in which the court makes findings that are
more significant than I make in this case.  For example in Scoates,
N. Smith J. awarded $250,000.  He found that the initial injuries and
immediate aftermath were horrific, and that the injuries had a “profound
impact” upon the plaintiff, having regard to the factors set out in Stapley
v. Hejslet, 2006 BCCA 34.  He held that the plaintiff’s “…ongoing pain
and disability, combined with the psychological difficulty and frustration of
adjusting to that pain and disability, are likely to have severe adverse effects
for the rest of his life.”  He held that the plaintiff’s permanent loss of his
pre accident career as an ambulance paramedic, a career he enjoyed, magnified
his loss of enjoyment of life.  He held that the plaintiff, who was 30 years of
age at the time of the first and most significant accident, was competitively
unemployable, likely permanently.  He awarded damages for loss of future
earning capacity of $1.5 million, including loss of future pension benefits.

[167]     In Towson,
the plaintiff was 24 years of age at the time of the accident in 2002.  She had
been working in a clerical or administrative capacity at the Justice Institute.
She sustained a moderate to severe injury to her neck and back, and a
traumatic brain injury resulting in post-concussion syndrome.  Her symptoms
were so severe that at trial six years post-accident she was unable to work. 
Her evidence was generally reliable although aspects of it were exaggerated.  She
had made a “serious effort to improve”.  Her chances of becoming employable
were poor.  $185,000 was awarded for non-pecuniary loss.

[168]     In Felix,
$200,000 was awarded. Grist J. held that, six years post-accident, the combined
effect of the plaintiff’s residual physical injuries along with pervasive
emotional disorder had been “devastating” to the plaintiff’s personal and
vocational life.  She was a 44 year old self-employed court reporter at the
time of the accident. Her injuries were chronic.  There was only a “modest hope
for further improvement.”  $331,000 was awarded for loss of future earning
capacity.

[169]     Mohan
($100,000, reduced to an unstated extent for failure to mitigate), Price-Wright
($100,000, a 2005 decision), Taylor ($115,000, in effect), and Marois
($130,000) are of more assistance to me in this case.

[170]    
In Taylor, L. Fenlon J. referred to some of the medical evidence
relating to a femur fracture, as follows (para. 40):

Dr. Bogue said that the
femur is the largest bone in the body and that significant force is required to
break it. He described a femur fracture as a severe injury, “one of the worst”.

[171]     Dr. Chin’s
evidence at trial in this case was in a similar vein.

[172]     Unlike Gravelle,
in this case, the plaintiff is not stoical.

[173]     Having
regard to all of the non-exhaustive list of factors commonly considered in
relation to assessment of damages for non-pecuniary loss, as set out in Stapley,
in the circumstances of this case and bearing in mind the authorities to which
I have referred, in my view the appropriate award for non-pecuniary loss is $140,000.

B.             
Loss of Earning Capacity – Past and Future

1.              
Legal Principles

[174]    
With respect to past loss of earning capacity, I adopt my summary set
out in Gillam, as follows:

B. Past Loss of Earnings Capacity

1. Legal Principles

90 In their submissions both parties used the term "past
wage loss" for this head of damage. The award relates to assessment of the
value of the work that the plaintiff would have performed but for her accident
injuries. The award is properly characterized as a loss of earning capacity:
Bradley v. Bath, 2010 BCCA 10 at paras. 31- 32; Lines v. W & D Logging
Co. Ltd., 2009 BCCA 106 at para. 153; X. v. Y., 2011 BCSC 944 at para. 185.

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

92 In Smith v. Knudsen, 2004 BCCA 613, at para. 36,
Rowles J.A. stated:

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

93 However the plaintiff must establish on a balance of
probabilities that there is a causal connection between the accident injuries and
the pecuniary loss claimed; mere speculation is insufficient: Smith v. Knudsen para. 36;
Athey v. Leonati, [1996] 3 S.C.R. 458, para. 27; Perren v. Lalari, 2010
BCCA 140, para. 32; Falati v. Smith, 2010 BCSC 465 at para. 41, aff’d
2011 BCCA 45.

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

95 In cases where it is
appropriate to proceed with an assessment of the value of the loss, sec. 98 of
the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 stipulates that a
person who suffers loss of income is only entitled to recover the net income
amount as damages: see X. v. Y., 2011 BCSC 944 at para. 187 and Gordon v.
Lines, 2009 BCCA 106 at paras. 152-186.

[175]     With respect
to future loss of earning capacity, I said as follows:

C. Loss of Future Earning Capacity

1. Legal Principles

123 The basic principles for loss of future earning capacity
were summarized by Garson J.A. in Perren v. Lalari, 2010 BCCA 140 at para. 30
as follows:

1. A future or hypothetical possibility will be taken into
consideration as long as it is a real and substantial possibility and not mere
speculation [Athey at para. 27], and

2. It is not loss of earnings but, rather, loss of earning
capacity for which compensation must be made [Andrews at 251].

124 An award under this head is only made after the plaintiff
has established a "real and substantial possibility" of a future
event leading to an income loss: Perren, at para 32. Once entitlement has been
established, there are two recognized approaches for assessing the value of the
loss; both are considered correct and therefore the proper approach will depend
on the circumstances of each case.

125 Where the loss is more readily quantifiable the award may
be predicated upon an "earnings approach", where pecuniary loss can
be identified by comparing what the plaintiff would have earned absent the
injury with what the plaintiff is expected to earn in his or her injured
condition. However, there are many cases where that approach is not possible or
is inappropriate because the loss, though proven, is not measurable in a
pecuniary way. In such cases it may be more useful to adopt a "capital
asset" approach, where an attempt is made to assess the loss in value of
the plaintiff’s previous earning capacity as a capital asset that has been lost
or impaired: Perren at para 32. In relation to that exercise, reference may be
had to considerations such as those enumerated in Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353:

The means by which the value of the lost, or impaired, asset
is to be assessed varies of course from case to case. Some of the
considerations to take into account in making that assessment include whether:

1. the plaintiff has been rendered less capable overall from
earning income from all types of employment;

2. the plaintiff is less marketable or attractive as an
employee to potential employers;

3. the plaintiff has lost the ability to take advantage of
all job opportunities which might otherwise have been open to him, had he not
been injured; and

4. the plaintiff is less valuable
to himself as a person capable of earning income in a competitive labour
market.

2.              
Background

[176]     I have
previously set out some of the evidence and findings relevant to the loss of
earning capacity issues.

[177]     As noted,
at the time of the accident Ms. Han had just re-commenced employment at JW
Research, and her first day on the job was October 31, 2008.  She earned $1,722
from then until November 23, 2008, the accident date.  The job entailed working
in Canadian Tire retail stores, usually walking through the store, approaching
customers to sell them Canadian Tire MasterCard credit cards, and associated
insurance.  Base pay was $12 per hour.  There was a quota of two credit card
applications per hour.  If she worked on a commission basis, which was an
option, she would earn $6 per application, plus a bonus if the customer bought
the insurance.  The plaintiff testified that pre-accident she had no difficulty
achieving the quota.  Mr. Sanji on behalf of the employer testified that
average earnings for employees in this occupation would be $14 to $16 per hour,
and that on average employees worked 27 hours per week. 40 hours would be
possible, depending upon sales performance.  Ms. Han’s earnings in 2007 at
JW Research were $7591 over four months, from April through July, or about
$1,900 per month.

[178]     Her annual
salary at FNESS is unclear.  She was paid $24,406 over the course of August 7,
2007 to July 25, 2008, a period of almost one year.  However, she testified
that she earned $40,000 per annum at FNESS.

[179]     Her
employment earnings for 2008 were $40,148.  This includes FNESS earnings to
late July, Beijing Olympic earnings, and JW Research earnings for November.  The
amount attributable to FNESS is unclear.  In December she received EI, which I
have not included. She had taken a two month vacation in September and October.

[180]     Her
earnings since the accident have been minimal. She has received some EI, and
some welfare payments.  She has taken student loans, and received money from
her parents.  The details of these latter amounts are not in evidence.

[181]     A
vocational assessment was conducted by Dr. Dean Powers, a psychologist, on
September 23, 2011.  I previously summarized her results on aptitude and
achievement or ability testing by Dr. Powers.

[182]     In his
view, given the state of her medical condition, she was not likely
competitively employable in “Conference and Event Planning.”  In his opinion,
she would be more suitable for entry level employment in office
administration.  He states that Conference and Event Planners earn in the
$51,000 range per annum, while office workers earn only about $36,000 per
annum.  He cautioned that she may face barriers on attempting to re-enter the
workforce, as potential employers may be unwilling to hire an employee who
requires accommodations, and due to her age.  For that reason he suggests
professional rehabilitation services for her.  He noted severe levels of
depression and anxiety on testing, and recommended proactive treatment for
these conditions.

[183]     Prospects
for those entering the occupation of Conference and Event Planners are limited,
according to Dr. Powers.  There were 2,115 persons working in that
occupation in B.C. in 2006.  Most are self-employed.  (This accords with the
evidence of Ms. Cathy Joyce, a large scale international event planner who
was the plaintiff’s superior at the Beijing Olympics.)  Prospects for
employment are “average” according to data relied upon by Dr. Powers, in
that there are were expected to be 300 new jobs or openings due to retirement
over the five years from 2010 to 2015.  Dr. Powers described the field as
highly competitive, due to the attractive nature of the occupation.

[184]     Although Dr. Powers
was told by Ms. Han that she was enrolled in a Fine Arts Program at
Kwantlen College [University], he provided no specific opinion regarding her
aptitude, prospects, or potential earnings in that field.  To be fair, at the
time of his assessment she had not yet enrolled in Emily Carr University, and
he may not have understood what her intentions were.   I note that Dr. Chin
commented in his report of February 16, 2012, “I am uncertain of her clear
intentions or career goals following completion of her Fine Arts diploma.”  I
am in essentially the same position even after trial.

[185]     She
underwent a functional capacity evaluation conducted by Mr. Paul Pakulak
on September 6, 2011.  On testing she showed a number of physical limitations.  In
Mr. Pakulak’s opinion, she demonstrated the capacity for activities
requiring light and some modified medium level strength but she showed
significant increases in pain and reductions and pace and capacity during the
course of the assessment.  In his view, she demonstrated the ability to meet
the stated physical capacity requirements for a sales representative, but on an
overall basis in his opinion she did not demonstrate the capacity to do the
work full time on a competitive basis.  With respect to work as a Conference
and Event Planner, in his view she would be able to do the office part of the
work but would have difficulty with on-site work such as physical set up of events.

[186]     Mr. Pakulak
considered that Ms. Han’s results on testing were reliable. Based upon the
opinions of Dr. Posthuma and my own views, I have reservations about that.

3.              
Analysis

[187]     I accept
that the plaintiff has been substantially although not totally disabled from
working from the accident date to the conclusion of the trial in February 2013,
a period of 47 months, or in other words 4.25 years.  The first part of that
time frame, to approximately early 2011, following the second surgery, was
largely due to her physical injuries, although her depression and anxiety
played a part.  Since then, she has had continuing physical limitations to some
degree but the major limiting factor has been her psychological problems
including chronic pain, depression, anxiety, and some degree of cognitive
difficulties.  Her injuries would have prevented her from making significant
progress towards her stated goal of a career as an event planner, and would
have made work in sales and marketing very difficult if not impossible.  In my
view, for most of the time she was capable of some work but in reality
following about January 2010 she concentrated her efforts on her studies and a
new career path in Fine Arts and, recently, design.

[188]     I do not
accept that she has established a permanent and total loss of future earning
capacity as she contends.  The prognosis is unclear.  As noted, there is
clearly a substantial risk that her chronic pain and depression will continue
indefinitely.  On the other hand, there are treatment options that are
unexplored and which in my view may improve her condition substantially.  Her
success in her fine arts and design studies is a positive sign for a possible
new career.  On the basis of the nature of the Interaction Design program in
which she is enrolled at Emily Carr University, as described in the evidence, I
infer that there are practical applications of her studies which could lead to
employment in the field of design.

[189]     When the
accident occurred she was 33 years of age, and as I said, her career was
adrift.  She had an interest in event planning but was not working in that
field and in my view her prospects were limited.  She had limited experience in
that field, especially in Canada.  According to the evidence most event
planners are self-employed.  The plaintiff’s advanced education including her
Paris MBA was of limited utility in that field.  She faced barriers as a solitary
new immigrant to Canada.

[190]     She enjoys
art, and travel, and education.  I have doubt as to whether, absent the
accident, would have applied herself exclusively to employment endeavours.  Her
prior work history suggests otherwise.  As a mature person she left her
occupation in China to study in France. She did not try to make much use of the
MBA that she earned.  Her decision to quit the job at FNESS without going to
another event planning position shows a lack of persistence in pursuing her
stated career goal.  It is very hard to know what she would have done with her
career absent the accident.

[191]     However,
she was energetic and industrious, and needed to support herself somehow.  She
earned $40,148 in 2008 for nine months of work (taking account of the two month
vacation and the month of December, post-accident).

[192]     The
plaintiff submits that $40,000 per annum is a reasonable estimate of the annual
value of her past earnings capacity to the end of the trial.  That is a reasonable
submission, which I accept.  In other words, the plaintiff is not contending
for higher amounts predicated upon, for example, work as a Conference and Event
Planner at the typical wages described by Mr. Powers.

[193]     Using
figures provided by the economist, Mr. Robert Carson, the plaintiff
submits that the award for past loss of earnings should be $121,328.  The
starting point for the calculations is the statistical earnings for foreign
born B.C. females of Ms. Han’s age who arrived in B.C. at age 31, employed
in highly skilled occupations.  The earnings are not large to begin with.  For
example, the present value starting point figure for 2009 would be $38,753,
rising to $42,673 for 2011.  These figures accord well with Ms. Han’s 2008
earnings.  Mr. Carson reduces the sums that could have been earned by
11.2% for labour market contingencies such as unemployment or part time work. 
From his figures the plaintiff deducts taxes at 20%.  Net past loss is
calculated at $121,582.  The plaintiff submits that the welfare payments the
plaintiff received would be deductible but asserts that she is paying this back
from her student loans.  I heard no evidence on this minor matter but the
defence made no submission and quite properly did not object to the submission
of plaintiff’s counsel, so I am satisfied that I need not consider the matter. 
The plaintiff’s actual post-accident earnings are very small, amounting to
approximately $1,950.  These must be set off.

[194]     In my view,
the plaintiff continued to have some residual working capacity prior to trial,
but instead of working, devoted her efforts to her education.  Also, a further
negative contingency factor is justified on the ground that the plaintiff might
not have worked continuously.  As noted, she enjoyed travel and education, and
worked in several jobs since leaving China in 2005.  In my view, the chances
that she would not be employed for some proportion of the time are larger for
her than for the population as a whole.

[195]     Taking all
factors into account, in my view a fair and reasonable award for past loss of
earning capacity is $100,000.

[196]     Turning to
future loss of earning capacity, I accept that there is a real and substantial
possibility of a future event leading to an income loss, due to the plaintiff’s
ongoing injuries including chronic pain and depression.

[197]     The
plaintiff submits that the future loss can be assessed at $855,854, which is
the present value of the total amount that would be earned to age 70, based
again on Mr. Carson’s figures, based upon foreign born females who came to
B.C. at age 31 employed in highly skilled occupations.  Again, therefore, the
base figures are globalized statistical amounts, not based upon projected
earnings as an event planner or any other specific occupation.  The plaintiff
submits that she is virtually totally unemployable and disabled therefore a
total loss of earnings of this magnitude is likely.  Alternatively there is a
50% probability of such a loss therefore the award should be $427,927.

[198]     I consider
the statistical amounts set out in Mr. Carson’s report to be a reasonable
starting point for the analysis, for the same reason as I have already
expressed in relation to past loss of earnings capacity.  I give little weight
to the plaintiff’s prospects, absent the accident, of earning higher incomes
than the statistical amounts as an event planner.

[199]     Another
source of figures to consider is in relation to the present loss of the value
of earnings of $1,000 per annum to the plaintiff’s age 70.  The present value
amount from January 1, 2013 to age 65 is $21,124.  If the plaintiff were in
fact to suffer a loss from the statistical averages to the amount given by Dr. Powers
for entry level administrative workers of $36,000 (as of 2011 when he provided
his report), the loss would be about $7,000 per annum ($42,673 less $36,000). 
The present value would be $21,124 x 7, or $147,994.  Another very rough
approach is based upon a multiple of earnings.  Five times the 2013 statistical
earnings of $45,024 is $225,120, undiscounted to present values.

[200]     I do not
accept that the plaintiff has established a complete and permanent loss of
future earnings capacity, nor anything close to that.  The prognosis as
established, while very unclear, does not warrant such a finding or award.  The
loss is partial and indefinite in duration.

[201]     The
earnings approach to assessment of the loss is not particularly suitable,
although it can provide support in this case.  In my view, the capital asset
approach is more appropriate in this case.

[202]     In my view
damages should be assessed at $200,000, which is about 23% of the statistical
earnings as set out in Mr. Carson’s report, to age 70.  This is equivalent
to about 4.45 years of statistical earnings, or, alternatively, the present
value of a loss of $9,467 per annum to age 70.

C.             
Cost of Future Care

[203]     The
plaintiff claims for future care costs of $52,286.94, based upon the following:

1.     Vocational
Rehabilitation:

i.       $100
per hour for 20 hours $2,000.00.

2.     Psychological
Treatment:

i.       $160
per hour for 24 visits $3,840.00.

3.     Pain
Management Program:

i.       Lifemark
Health $13,300.00.

4.     Effexor (anti-depressant
medication):

i.       3
tabs per day $1,160.70 per year, lifetime, present value: $28,151.97

5.     Over-the-Counter
Pain Medications:

i.       Voltaren;
12 tubes per year, $16.99 per tube; $203.88 per year; lifetime, present value: $4,944.97;
and

ii.      Advil;
10 boxes per year, $15.99 per box, lifetime, present value: $3,878.27.

[204]     In all of
the circumstances of the case, I find that the claims for psychological
treatment and pain management are justified.  As the plaintiff has apparently
already moved into a different career path, I am not persuaded that vocational
rehabilitation services are needed.  The need for psychological treatment and a
pain management program is supported by Drs. Posthuma, le Nobel and Dr. Ancill. 
Although Dr. Ancill was of the view that psychiatric medication is
indicated, this is contrary to the opinion of Dr. Posthuma, whose opinion
I preferred.  She produced very few receipts for over the counter medication
taken in the past, (approximately $50 to $100) and therefore I do not expect
her to incur significant such expense in the future.

[205]     No claims
were advance for the exercise therapies suggested by Dr. le Nobel and
supported by Dr. Chin.  No estimates of cost are in evidence.

[206]     In
summary, costs of future care are allowed totalling $17,140.

D.             
Special Damages

[207]     I have
reviewed the list of special damages claims together with the receipts
supplied.  A number of claims are without appropriate documentary support.  I
allow the sum of $1,000 for prescription and over the counter medications, and
$3,772 for medical treatment, including psychological treatments, MRI (for the
knee, I infer), massage therapy, acupuncture, and podiatrist services.  The
claim for taxi expenses is not established in the evidence.  The claim for art
supplies and art courses early on in her recovery is allowed, as I accept that
initially the motivation was at least partly therapeutic.  The amount is $1,000
approximately.  A claim is made for the cost of medical treatment in China. I
am not satisfied that such treatment was medically necessary, or advisable,
given the treatment that the plaintiff obtained or had available to her in
B.C.  A claim is made for BCIT tuition for the course in graphics in September
2009, in the amount of $346.  No claims are made for any other academic
courses, such as the Kwantlen or Emily Carr programs.  I do not know what sets
the one BCIT course apart from the other courses for which no claim is made. 
In any event, I do not allow the cost of the BCIT course.  I do not find that
the plaintiff’s decision to take the course was necessitated by her injuries. 
There are some minor claims for an application fee and testing services at
Kwantlen University ($75 total) in May, 2009.  This claim is rejected for the same
reason as the BCIT course.

[208]     In
summary, $5,772 is allowed as special damages.

V.             
Summary

[209]     In
summary, the plaintiff is awarded the following amounts:

[210]    
The plaintiff is entitled to costs, or if necessary the parties are at
liberty to make arrangements to make submissions regarding costs, provided such
arrangements are made within ninety days of this judgment.

“Verhoeven J.”