IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150630

Docket: M121406

Registry:
Vancouver

Between:

Ellen Yi-Qian Hsu

Plaintiff

And

Elizabeth Ann
Choquette
Melvin B. Scott and Darlene Scott

Defendants

Before:
The Honourable Mr. Justice Schultes

Reasons for Judgment

1.              
INTRODUCTION

[1]            
This case involves the consequences to Ellen Hsu of a rear-end motor
vehicle accident that she was involved in on April 5, 2010. Liability for the
accident has been admitted on behalf of Elizabeth Choquette, the driver who
caused it, and as a result the focus in the trial was on the nature and severity
of the injuries that Ms. Hsu received and the extent of their impact on
her life. The most significant issue in that regard is whether she now suffers
from thoracic outlet syndrome (“TOS”) because of the accident.

2.              
EVIDENCE

(a)           
Background

[2]            
Ms. Hsu was 34 years old when she testified. She works as a realtor
in Vancouver, with an emphasis on commercial real estate and advising
developers on changing the zoning of their properties. She married Tom Ip, who
is a chartered accountant, in May 2011 and they now have a son, Aidan, who was
born in July 2012.

[3]            
Her post-secondary educational background is quite extensive — she has
a Bachelor of Science degree, a certificate in teaching English as a second
language and two master’s degrees from universities in Texas, one in finance
and the other in real estate.

[4]            
According to her evidence, the unifying theme of her pre-accident
lifestyle was strong involvement in sports and a high level of physical
activity in general. She was a successful multi-sport athlete in secondary
school (badminton, tennis, table tennis, soccer and basketball) and continued
with intramural sports, in particular badminton and basketball, in university.
She also enjoyed bowling and the less team-oriented pursuits of skiing and
hiking.

[5]            
She returned to Vancouver in 2008 after being laid off from her first
post-graduation job in Texas due to a downturn in the U.S. economy. She
continued to be physically active following her return — skiing once or twice
a month in the winter and hiking regularly throughout the summer.

[6]            
She became licensed and then began to work in real estate in Vancouver
in the fall of 2009, initially dealing with residential sales. That fall and
winter she played basketball in a league and badminton with her soon-to-be
husband and his friends, as well as with her sister. She also played tennis
once a month or so. Her skiing was less frequent after she started working,
confined to one multi-day trip and taking visiting friends. This pattern
continued up to the date of the accident the following April.

(b)           
The Accident

[7]            
Except for the fact that it involved two collisions, the circumstances
of the accident were unremarkable.

[8]            
Ms. Hsu was driving northbound on Willingdon in Burnaby when the
car in front of her stopped suddenly. She was able to stop herself in time to
avoid hitting it, but the car behind her then struck her from the rear, pushing
her car into the one in front of her. Her hands were on the steering wheel and
her right foot was on the brake when she received these hits.

[9]            
It is obvious from the damage to the vehicles involved that the amount
of force from the impacts went beyond the trivial, and the capability of the
forces involved to produce at least some injuries was not disputed.

[10]        
She and the experts who testified on her behalf all made reference to
these “two hits”, driving her body forward and then backward, as playing a part
in the injuries that she suffered.

(c)           
Post-accident Symptoms, Treatments and Effects on Lifestyle

[11]        
Ms. Hsu’s initial physical sensations following the accident were
tight muscles in her neck, shoulders and lower back, soreness and “a little bit
of pain” throughout her body. In particular she had pain in her “wrist area”
and in her right leg, down to the ankle. She felt very sore that evening.

[12]        
More troublesome symptoms developed from there. According to Ms. Hsu
the worst problems, distilled to their essence, are:

·       
Pounding headaches, including dizziness: The headaches
begin at the back and move around to the sides of her head. She experiences
them three or four times per week. Once or twice a week there is dizziness and
sometimes ringing in her ears associated with them. They have intensified to
the point where she is taking more painkillers and muscle relaxants to
alleviate them than she was originally. Occasionally they will last for an
entire day, to a point that she is unable to function and just has to lie down
and rest. Approximately once per month the pain reaches a level that requires
her to take Tylenol 3s.

·       
Pain in her
neck and shoulder and travelling down her arms, including tingling, numbness,
and weakness in her arms and hands:
The pain and tenderness to the neck and shoulder is on both sides. It inhibits
the mobility in her neck and causes her pain when she is required to raise her
arms, lift objects or carry her son, who as of the time of trial weighed 28
pounds. Very little has changed in these symptoms since the accident and she
actually believes that they may be worsening. She feels weakness in her arms
when engaging in repetitive activity, with a burning sensation travelling down
to her wrist. She experiences constant tingling and weakness in all ten digits
of her hands, and a sense of inflammation and pain in her wrists. The pain in
her right wrist “intensifies more” she said.

·       
Pain in her
lower back, eventually travelling down her right leg and causing pins and
needles in her ankle and foot: (At
one point in her evidence she also described this pain as originating in her
hips). Sitting for extended periods aggravates this situation, as does
carrying heavier items and activities that require bending. Occasionally after
bending she has to gather her strength before she can stand back up. Treatments
and prescribed exercises offer some relief, but when she gets busy at work or
otherwise has to be physically active it “comes back with a vengeance.” At the
time she testified she felt that she was in the lower level of the cycle of the
severity of her symptoms. Overall, since the time of the accident she says that
this condition is “a little bit better but not that much.” The symptoms are
“pretty much constant.” She finds some relief from taking anti-inflammatory
medication and painkillers, as well as from engaging in a variety of
treatments, including physiotherapy, chiropractic, massage, acupuncture, active
rehab and more recently a therapy called Feldenkrais, which involves attempts
to relax the muscles.

[13]        
Less serious, but still present and causing her discomfort, is pain in
her upper back (with tightness in the shoulder blade and a feeling that her
body is slouching forward), hips and wrist.

[14]        
A major effect of the pain and numbness that she experiences is that she
tires much more easily. The sense of fatigue is constant. She finds herself
less productive and has to take more frequent breaks from work and other
activities than she did before the accident. She avoids extended periods of
driving and organizes her work tasks around the obstacles posed by her
symptoms. In this regard she finds that commercial real estate work is less
physically demanding than residential work was. (Ms. Hsu is not claiming
for past wage loss or impairment of future earning capacity, so it was not
necessary to explore this aspect of her injuries in any greater detail.)

[15]        
In general her pain intensifies in the evening and she sleeps poorly
because of it, having to repeatedly adjust her position to be more comfortable
during the night. She and her husband have gone through several different
mattresses trying to find one that will make her comfortable and her
physiotherapist has recommended that she use a bolster to put her legs in a
better position while sleeping.

[16]        
In addition to her extensive involvement in the various forms of treatment
that I have described, which were documented in the admissions of fact, she
also applies heat packs and takes hot showers in an effort to relax her
muscles.

[17]        
Her symptoms have made it impossible for Ms. Hsu to maintain her
previous level of physical activity. The actions that are required to play
basketball, badminton, bowling, tennis and table tennis all aggravate her
symptoms in different ways and in any case she no longer has a sufficient
amount of energy to engage in vigorous activity for extended periods. She said
that she felt good about herself when she played sports and that it is
disappointing to her that she “can’t do more than half the stuff” that she used
to do.

[18]        
Because of the weakness in her legs she has not attempted to ski or
snowboard since the accident and her attempts to resume hiking on easy trails
have left her in a lot of pain and required lengthy recovery periods. Her
preference would have been to engage in more active vacations with her husband,
but due to her symptoms they have opted for more passive ones such as cruises.

[19]        
In addition to having problems lifting and carrying her son, Ms. Hsu
found herself unable to bathe him because of the pain caused by bending and the
weakness in her arms. Perhaps more significantly, she was unable to maintain
the required position for breastfeeding, even with pillows for support, and the
shorter periods that she was able to stand affected her milk supply, leading to
her son being fed with formula sooner than she and her husband had planned. This
made her feel like a poor mother, she said. Her physical situation has caused
her and her husband to put plans for a second child on hold for the time being.

[20]        
She has a very close relationship with her parents and siblings and she
frequently brings her son to her former family home when her husband is
working, so that they can help her in caring for her son and she can rest. Her
in-laws help her in the same way.

[21]        
She testified that her agreement with her husband when they moved in
together after marrying was that she would do the major share of the housework,
allowing him to work the long hours that his accounting practice requires at
certain times of the year. Her husband’s recollection in his evidence was that
they had actually agreed to split these tasks equally, in the interests of
fairness. However it was common ground that since the accident she has not been
able to perform any of the household tasks that require repetitive movement,
reaching or lifting. After some unsuccessful attempts by Mr. Ip to fill this
gap himself, they have hired a cleaner at a cost of $60 per week.

[22]        
Her reduced ability to maintain the physical positions needed for
cooking has led to the family eating restaurant meals much more often, which
are both more expensive and less healthy.

[23]        
Finally, Ms. Hsu described a decline in her social life as a result
of her injuries, because many of her social relationships are based on joint
participation in sports.

[24]        
In cross-examination Ms. Hsu agreed that before the accident, as
far back as 2007, she had complained of lower back pain and numbness in her
right leg and that after running for an hour or playing badminton her leg felt
week. She also agreed that she had been referred to see an orthopedic surgeon
for these issues in 2009, still before the accident had occurred. Her response
was that the surgeon told her that she was fine and that she should come back
in a year if she had any problems. She considered herself to be “fine” in that
respect at the time that the accident happened.

[25]        
With respect to her wrist and hand problems, she conceded that Dr. Luke,
her family doctor had suggested to her that she suffered from carpal tunnel
syndrome (“CTS”) in both wrists. (Dr. Luke had confirmed both of these
findings in his evidence and also advised that he had referred Ms. Hsu for
nerve conduction studies for further investigation of her possible CTS. With
respect to her pre-accident lower back pain he pointed out that she was still
able to do regular sports activities despite it.)

[26]        
She agreed with the suggestion that she was required to reduce her
physical activity to an extent once she was pregnant with her son in 2011 and
2012. She maintained that during the period after the accident but before the
pregnancy it was her accident symptoms that affected her activities.

[27]        
In addition, in response to the suggestion that her sleep problems could
be explained by the requirements of caring for an infant or young child, she
drew a distinction between problems caused by her son’s night waking and those
caused by her accident symptoms.

[28]        
It was put to Ms. Hsu that during her examination for discovery her
initial response to a question about her headaches was that they were “much
better.” However she pointed out that in a later answer at the discovery she had
clarified that her problem with headaches “goes up and down”, in other words
that it was cyclical.

[29]        
The evidence of her husband, her sister Julie Hsu and her mother-in-law
Pee Lee Ip provided some general support for Ms. Hsu’s account of her
pre-accident lifestyle, as well as her symptoms and their impact on her
housekeeping and child care abilities and her recreational pursuits. In
particular, Julie Hsu described the extensive amount of support that she and
the rest of her family provide to her sister in caring for her son in their
home.

[30]        
Dr. Luke testified about his factual observations of Ms. Hsu’s
condition, rather than offering any medical opinion. Her recitation of her
symptoms to him during various visits in a manner that corresponds to her
evidence on the trial is of course of no evidentiary value in itself, but
during examinations he made some observations that could be described as
objective, both shortly after the accident and closer to the time of trial.
Most notably, he found tenderness in her neck and upper and lower back on
palpation, more on the right side than on the left.

(d)           
Expert evidence

i)               
Dr. Feldman

[31]        
He is a physiatrist, who had actually retired from practice after a long
career by the time he testified. His report on Ms. Hsu’s behalf was based
on an examination of her that he carried out in April of 2014.

[32]        
He placed emphasis on the two-hit nature of the underlying car accident,
which would have caused severe changes in the movement of her upper body.

[33]        
He was not persuaded that her pre-accident low back complaint played any
role in her current condition, in view of her claim that her current pain began
after the accident. In cross-examination he mistakenly asserted that this low
back complaint, for which she was referred to the orthopedic surgeon, had also
arisen after the accident and therefore was simply a different perspective on
the same essential problem. Ms. Hsu’s counsel corrected this
misunderstanding, which was not reflected in Dr. Feldman’s report, in
re-examination,

[34]        
He found that the range of motion in her neck was restricted when
turning to the right and also when tilting the neck backwards. In addition, she
had pain in her right shoulder and knee, and tenderness and weakness in right-sided
muscles in the shoulder area, including pain radiating to the right pelvis.

[35]        
His clinical impression was that Ms. Hsu had “generalized weakness
in all four limbs, worse on the right than on the left, causing joint pain
because of the lack of support for the underlying joints.” Her neck and
shoulder muscles, particularly on the right side, were involved in this
phenomenon. The burning sensations that she described suggested a nerve-related
chronic pain syndrome.

[36]        
He recommended that she participate in a pain management program,
perform strengthening exercises for the muscles in her right neck and shoulder
area, and use a TENS machine (which introduces a mild electric current into the
affected area to reduce the sensation of burning pain).

[37]        
He also recommended that she have further imaging done of her neck to
rule out a movement disorder.

ii)             
Dr. Salvian

[38]        
He is a vascular surgeon who has developed a sub-specialty in the
diagnosis and treatment of TOS. His report was provided on Ms. Hsu’s
behalf. Like Dr. Feldman, he also saw her in April 2014.

[39]        
He explained that TOS is caused by compression of the vein, artery or
nerves in the area called the thoracic outlet, which is where they pass over
the first rib out of the chest and neck, under the collarbone and into the arm.
Most people who develop it following trauma have anatomical variations, such as
a cervical rib or fibrous bands that make the nerves more susceptible to
compression.

[40]        
The type of TOS that Dr. Salvian diagnosed in Ms. Hsu’s case
was neurogenic (nerve-based), caused by compression of nerves in an area known
as the brachial plexus.

[41]        
Through a series of standard physical tests, he was able to provoke the
symptoms of tingling in the right arm and all of the fingers and severe pain in
the right shoulder and neck. His review of her medical and therapeutic records
revealed a post-accident history of pain and tenderness in the right neck and
shoulder muscles, right shoulder pain and numbness travelling down that arm to
the fingers. He did not find many symptoms on the left side.

[42]        
His opinion was that Ms. Hsu’s headaches and neck pain were related
to injury to the muscles and ligaments of the neck and upper back. He qualified
this aspect of his opinion by emphasizing that he is not a specialist in these
types of injuries.

[43]        
More significantly, his opinion was that her numbness, tingling and pain
radiating into all of her fingers but mainly the thumb, forefinger and middle
finger of the right hand was “due to a combination of post traumatic TOS and
likely a component of carpal tunnel syndrome.”

[44]        
The majority of sufferers of this type of TOS have a compression of the
nerve root that affects the fourth and fifth fingers, but a significant number
instead experience compression of the nerves that affect the thumb, index
finger and forefinger, like Ms. Hsu. The compression results from a spasm
of the paraspinal (next to the spine) muscles. It is intermittent, depending on
the amount of muscle spasm at a particular time.

[45]        
In Dr. Salvian’s view, there was more than enough trauma involving
forward and backward movement in Ms. Hsu’s accident to have produced
injury to her paraspinal muscles, resulting in a compression of her brachial
plexus.

[46]        
In reaching this conclusion, Dr. Salvian ruled out two other
potential causes of the same arm and hand symptoms.

[47]        
Radicular pain results from compression of the nerve roots as they exit
the spine. An MRI of Ms. Hsu’s cervical spine showed no indications of
such a condition, nor did clinical testing produce any evidence of it.

[48]        
Peripheral neuropathy results from the compression of the ulnar nerve at
the elbow or the median nerve at the wrist. When it occurs at the wrist it is
known as CTS. While she has discomfort with wrist movement, her tests for CTS
were negative, including very sensitive nerve conduction testing. In his
opinion it is very unlikely that severe CTS would produce negative nerve
conduction results. Further, the distribution of numbness throughout all of the
fingers, albeit with greater symptoms in the first three fingers, suggests a
more diffuse nerve irritation than just CTS alone.

[49]        
What is possible is that she has a sub-clinical or hidden level of CTS,
which exacerbates the symptoms of the TOS. This is known as “double crush
syndrome”, in which nerve compression closer to the neck also renders a nerve
located farther away more sensitive.

[50]        
He recommended that Ms. Hsu engage in the Feldenkrais therapy that
she described recently having embarked on, and see a kinesiologist to develop
an exercise program.

[51]        
In cross-examination Dr. Salvian rejected the possibility that Ms. Hsu’s
symptoms are due to the compression of a myofascial trigger point
(hyper-irritable spots in the fascia over the muscle). Her distribution of
symptoms is quite specific for the type of nerve compression that he has
identified. It is also not clear to him what nerves would be compressed by such
trigger points if it is not the brachial plexus that he is referring to. In his
view this is a neurological condition.

[52]        
He thought it was also important to note that CTS, which is caused by
nerve compression at the wrist level, cannot explain the neck pain and the pain
radiating down Ms. Hsu’s arm.

iii)           
Dr. Dost

[53]        
He is a neurologist who testified on behalf of the defence. He examined Ms. Hsu
in October of 2013. He produced three reports — an initial opinion, a response
to Dr. Salvian’s report and a clarification of the factual assumptions on
which his opinions were based.

[54]        
His initial report included a lengthy appendix raising the dangers of
misleading results provocative testing for nerve entrapment issues (of the kind
that Dr. Salvian performed); the need for caution when interpreting either
positive or negative results of nerve conduction studies for CTS; the disputed
nature of the type of TOS that Dr. Salvian diagnosed (due to, among other
difficulties, the lack of agreed upon clinical features for it); the
speculative and unproven nature of double crush syndrome and the need to
distinguish between neurological and non-neurological pain before making a
diagnosis of any nerve entrapment condition (such as TOS or CTS).

[55]        
In his opinion, Ms. Hsu’s headaches are chronic, due to whiplash.
Over-the-counter pain medication is suitable to deal with them.

[56]        
He concludes that her shoulder, arm and finger issues were due to two
separate conditions. First, she has shoulder pain on both sides with pain that
travels from it to her right upper arm. Second, her sensory symptoms in her
hand are consistent with CTS. He ruled out any relationship between the
accident and the CTS, because of the lack of a direct injury producing immediate
symptoms or indirect injury to the musculoskeletal structures resulting in
delayed symptoms. The development of her symptoms on the right side from
intermittent to constant since her pregnancy is “classic” for that syndrome, in
his opinion, as pregnancy and postpartum are significant risk factors for its
development. These symptoms did not interfere with her daily activities or
vocational pursuits in any event.

[57]        
He found no evidence of TOS.

[58]        
He believes that her lower back and leg symptoms were due to a worsening
of a pre-existing lumbar disc herniation, which was already symptomatic.
Because of the subjective nature of the symptoms and the fact that Ms. Hsu
displayed nonorganic findings (that is, symptoms with no anatomical cause) on
her entire right side, in the form of a 50% reduced sensitivity to pinprick
stimulation, Dr. Dost was unable to determine that any disability had
resulted from this injury.

[59]        
He disagreed with Dr. Salvian’s diagnosis of TOS. He agreed that Ms. Hsu
suffers from myofascial pain syndrome (muscle spasms causing both pain at the
area of injury and referred pain in other areas) but emphasized that this fully
explains her other symptoms. As he put it:

The court should also be aware
that compression of musculature in an individual with myofascial trigger points
will create neurological symptoms (pseudoneurological) without neurological
compression. This occurs via the phenomenon of central sensitization.

[60]        
Dr. Dost’s other concerns with Dr. Salvian’s diagnosis
included:

·                
his failure to perform a full neurological sensory exam to
address the fact that there were some non-organic findings, or to perform the
most sensitive tests for CTS;

·                
his incorrect assertion that the symptoms go beyond what would be
expected from CTS. Patients with that condition do in fact experience such
symptoms;

·                
the lack of specificity to TOS in the tests that he performed.
These tests will also be positive for CTS and myofascial pain syndrome;

·                
The high level of false negative results of nerve conduction
studies for CTS, meaning that Ms. Hsu’s negative test here does not rule
it out as the complete cause of her hand symptoms; and

·                
the controversial nature of this form of TOS (as, in effect, a
diagnosis of exclusion which lacks objective and reliable criteria to support
it) and the lack of evidence to support the validity of double crush syndrome;

[61]        
Put simply, Dr. Dost sees no need to resort to the diagnoses made
by Dr. Salvian when the well-recognized phenomena of myofascial pain and CTS
fully explain all of Ms. Hsu’s symptoms.

[62]        
As to the existence of the relationship between the accident and the
hidden CTS that Dr. Salvian suggested, Dr. Dost highlighted the lack
of any sign of a sufficient injury to her wrist and the fact that her potential
CTS symptoms were on both sides.

[63]        
In cross-examination he clarified that his assertion with respect to the
presence of pre-existing lower back symptoms simply meant that at some time
prior to the accident she had had symptoms in that area. The ultimate
determination of the existence of symptoms as of the time of the accident would
have to be based on Ms. Hsu’s credibility, the assessment of which he
freely conceded was not his area.

3.              
DISCUSSION

(a)           
Credibility, Reliability and Findings of Fact

[64]        
On the whole I found Ms. Hsu to be a credible and reliable witness.
She had an unfortunate tendency to recite the entire litany of her symptoms
whenever the opportunity presented itself and she was rather vague and inflexible
when dealing with the possibility that any of those symptoms might have
improved over time, even if only marginally. She also became somewhat emotional
and defensive under a very mild and courteous cross-examination.

[65]        
But on the core of her evidence — concerning her pre-accident pursuits,
the symptoms of her injuries and the effect of the pain on her day-to-day life
— she sounded like she was describing actual events as she experienced them,
rather than working backwards from a desired outcome to advance her claim. In
particular, I found her pride in her athletic accomplishments and active
lifestyle before the accident and the contrastingly diminished sense of self-worth
that she now demonstrates to be believable.

[66]        
Although her husband, sister and mother-in-law obviously have a personal
connection to her, their evidence had a low-key and idiosyncratic quality and
it did not seem to me that they were supporting her position on any other basis
than their own independent observations of her condition.

[67]        
In general, I accept her description of her physical experiences since
the accident and their effect on the life that she is now able to lead. I also
accept her assertion that her previous low back issues were not troubling her
when the accident occurred.

[68]        
Except on the issue of whether Ms. Hsu has TOS, CTS or a
combination of them, the expert evidence is not really in conflict. It seems
obvious that the accident caused reasonably severe soft-tissue issues that go
into spasm regularly, causing neck and shoulder pain and headaches. Although Dr. Dost’s
contention that Ms. Hsu’s lower back problem was symptomatic at the time
of the accident is no longer sustainable in light of my acceptance of her
evidence on that point, even on his version of events he thought that the
accident had at least aggravated that condition.

[69]        
The fundamental conflict that requires resolving is with respect to her
arm and hand symptoms, and what syndromes are most likely to have produced
them.

[70]        
Clearly Dr. Salvian and Dr. Dost are both very experienced and
knowledgeable expert witnesses in their respective fields.

[71]        
While in the abstract one might well defer to a neurologist over a
vascular surgeon on an issue of nerve compression, it seems to me that Dr. Salvian’s
extensive clinical experience in this sub-specialty and his obviously extensive
knowledge of the various structures in the thoracic outlet area addresses any
presumed disadvantage that he might otherwise have based on his general
specialty. I also found his report very clearly expressed and his responses to
questions on cross-examination very fair and balanced. He did not seem to me to
be acting as an advocate for the kind of TOS here that he has diagnosed here,
which Dr. Dost regards as controversial. He merely explained, in a very
straightforward and understandable way, why he believes that condition is
present.

[72]        
In contrast both Dr. Dost’s reports and his testimony were more
combative, and seemed strategically directed to defeating the availability of
this disputed form of TOS. The portion of his evidence that actually dealt with
Ms. Hsu was rather superficial by contrast.

[73]        
The essence of Dr. Dost’s rejection of TOS here is that well-known
and well-accepted conditions (myofascial pain syndrome and CTS) are sufficient
to explain all of Ms. Hsu’s symptoms, so there is no need to resort to the
controversial or unprovable diagnoses that Dr. Salvian offered. I found
these alternative explanations, which rested more on general assertions than on
the diagnosis of the actual plaintiff before the Court, less convincing than Dr. Salvian’s
fairly transparent explanation of the syndrome and its relationship to his
clinical findings.

[74]        
The mechanism by which myofascial pain produces pseudoneurological
symptoms that mimic neurological ones over an extended area of the body was not
well explained by Dr. Dost. I was left unclear how central sensitization
figures into Ms. Hsu’s specific situation. It is noteworthy on that point
that Dr. Feldman emphasized during his cross-examination that pain that
results in compression of myofascial trigger points only extends to the length
of the actual muscle involved.

[75]        
As to the ability of CTS to account for all of the hand symptoms, I
preferred Dr. Salvian’s very focused analysis of the potential role of
hidden CTS here to Dr. Dost’s general assertion of the wide range of
symptoms of CTS that can present in any given situation.

[76]        
I was intrigued by Dr. Dost’s allegations of methodological
shortcomings in Dr. Salvian’s approach but to the extent that they were
put to Dr. Salvian in cross-examination, he did not accept them. They were
also not described or explained by Dr. Dost in a way that endowed them
with any inherent reliability or persuasiveness. They caused his report to seem
more like a critique of Dr. Salvian’s approach than a stand-alone opinion.

[77]        
For these reasons, I prefer and accept the evidence of Dr. Salvian
that Ms. Hsu suffers from TOS, in this case based on nerve compression.

(b)           
Loss of Housekeeping Capacity

[78]        
The principles to be applied to this head of damages were succinctly
summarized in Yip v. Saran, 2014 BCSC 1283:

[81]      Awards for loss of housekeeping capacity may be
made for either past or future losses, or both: see Kroeker v. Jansen
(1995), 123 D.L.R. (4th) 652, 1995 CanLII 761 (B.C.C.A.), at para. 25…
Such claims are different from a future cost of care claim in that they reflect
a loss of a personal capacity and are not dependent on whether replacement
housekeeping costs are actually incurred: see O’Connell v. Yung, 2012
BCCA 57, at para. 67. An award ordered for loss of housekeeping capacity
is for the value of the work that would have been done by the plaintiff but
which he or she is incapable of performing because of the injuries at issue. A
claim in respect of loss of housekeeping capacity is also distinct from a claim
for non-pecuniary damages. Even though the claim is not dependent on whether
replacement housekeeping costs are actually incurred, it is frequently valued
using a replacement cost approach.

[82]      However, any award
should be approached conservatively: see Kroeker, at para. 29.

[79]        
Ms. Hsu’s counsel suggests that her past loss of capacity should be
valued according to the cost of the house cleaner that she and her husband have
been required to employ, multiplied by the number of months since they have
been living together. That would yield an award of $3,720.

[80]        
He suggests that a reasonable award for future losses would be $10,000.

[81]        
Ms. Choquette’s counsel does not make a specific submission on the
amount of damages, but draws my attention to some of the inconsistencies in the
evidence of Ms. Hsu and her husband on this issue.

[82]        
I think he is correct that Mr. Ip’s recollection that the
pre-accident arrangement was that the couple would divide housekeeping tasks
equally has relevance to the actual consequences of Ms. Hsu’s loss of
capacity. His recollection, which made sense to me and which I prefer over her
more expansive view of her housekeeping role, means that roughly half of the
work for which she claims compensation for being unable to do since the
accident, would not have been her responsibility in any event. Therefore I
think that the award for past losses should be reduced by the same proportion —
to $1,860.

[83]        
Where there is a lack of clear evidence valuing a loss of housekeeping
capacity (as opposed to a concern about whether a loss has occurred) it is open
to the trial judge to reflect it in the award of non-pecuniary damages. (See
for example Eaton v. Regan, 2005 BCSC 3 at para. 46 and Papineau
v. Dorman, 2008 BCSC 1443 at para. 295.) That is the course of action
that I will take in this case.

(c)           
Non-pecuniary Damages

[84]        
The purpose of non-pecuniary damages is "to compensate a plaintiff
for pain, suffering, loss of enjoyment of life and loss of amenities": Jackson
v. Lai, 2007 BCSC 1023, at para. 134.

[85]        
Stapley v. Hejslet, 2006 BCCA 34 at para. 46 provides a
helpful list of factors to consider in assessing the amount of such an award:

The inexhaustive list of common factors…that influence an
award of non-pecuniary damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

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

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

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

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

[86]        
Stapley also referred to the following passage from Lindal v.
Lindal, [1981] 2 S.C.R. 629 at p. 267:

Thus the amount of an award for non-pecuniary damage
should not depend alone upon the seriousness of the injury but upon its ability
to ameliorate the condition of the victim considering his or her particular
situation. It therefore will not follow that in considering what part of
the maximum should be awarded the gravity of the injury alone will be
determinative. An appreciation of the individual’s loss is the key and the
"need for solace will not necessarily correlate with the seriousness of
the injury" … In dealing with an award of this nature it will be
impossible to develop a "tariff". An award will vary in each case
"to meet the specific circumstances of the individual case"…

[Emphasis added by Kirkpatrick
J.A.; citations omitted.]

[87]        
When assessing non-pecuniary damages, fairness is measured against
awards made in comparable cases. However, while such cases are helpful they
serve only as a rough guide, as each case depends on its own unique facts: Kuskis
v. Tin, 2008 BCSC 862, at para. 136; and Grier v. Saadzoi, 2009
BCSC 478, at para. 26.

[88]        
In this case Ms. Hsu’s injuries have affected her life in various
ways, several of them quite serious. Most importantly, her ongoing pain,
weakness and fatigue have restricted her ability to participate fully in many
of the important family roles and recreational pursuits that she values.

[89]        
Her counsel submits that an award under this heading in the range of
$85,000 – $100,000 would be appropriate. He relies on previous decisions in
which TOS was among the injuries suffered by the plaintiff:

[90]        
The cases provided by counsel for Ms. Choquette to address a
situation in which there is no finding of TOS are obviously inapplicable at
this point. The cases that he submitted in the alternative deal with more
serious kinds of soft tissue injuries or various nerve impingement issues,
short of a diagnosis of TOS, and involve awards in the $20,000 – $35,000 range.
I am satisfied that cases involving TOS occupy their own distinctive range of
non-pecuniary damages, which was accurately illustrated by the authorities
submitted by Ms. Hsu’s counsel, so these alternative authorities from the
defence do not assist me in arriving at a fair award.

[91]        
Considering the unique circumstances of this case, but keeping in mind
awards made for roughly comparable injuries and levels of pain and suffering,
and adding an amount for the insufficiently documented yet legitimate claim for
future loss of housekeeping capacity, I will award $87,500 under this heading.

(d)           
Future Care

[92]        
In order for a plaintiff to be compensated for the cost of future care
there must be a medical justification for her costs and they must be
reasonable: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at 84.

[93]        
My preference for Dr. Salvian’s opinion over Dr. Dost’s
extends to accepting the former’s recommendations about the ability of Feldenkrais
therapy and an exercise program to bring some measure of relief for her
symptoms, despite his overall view that TOS is not “cured” by conservative
therapy.

[94]        
I agree with Ms. Hsu’s counsel that her current expenses for
Feldenkrais and a personal trainer ($130 and $50 per session respectively) are
a good measure of future costs for these types of care. The requested amount of
$5,000 seems quite conservative if these treatments are to extend over multiple
years, and so I consider an award in that amount to be reasonable and
appropriate.

(e)           
Special Damages

[95]        
The proper analysis for awarding special damages was well-explained in Redl
v. Sellin, 2013 BCSC 581:

[55]      Generally speaking, claims for special damages are
subject only to the standard of reasonableness. However, as with claims for the
cost of future care (see Juraski v. Beek, 2011 BCSC 982; Milina v.
Bartsch (1985), 49 BCLR (2d) 33 (BCSC)), when a claimed expense has been
incurred in relation to treatment aimed at promotion of a plaintiff’s physical
or mental well-being, evidence of the medical justification for the expense is
a factor in determining reasonableness. I accept the argument expressed through
Dr. Frobb, that a patient may be in the best position to assess her or his
subjective need for palliative therapy. I also accept the plaintiff’s counsel’s
argument that in the circumstances of any particular case, it may be possible
for a plaintiff to establish that reasonable care equates with a very high
standard of care. In the words of Prof. K. Cooper-Stephenson in Personal
Injury Damages in Canada, (2d ed., 1996) at p. 166:

Even prior to the Supreme Court’s
endorsement of the restitution principle [in Andrews v. Grand & Toy
Alberta Ltd. and Arnold v. Teno], in the area of special damages the courts
had been prepared to allow optimum care, and damages were awarded for expenses
of a character that stretched far beyond the resources of even an affluent
Canadian.

That being said, and while Dr. Frobb’s
paradigm of the patient becoming their own physician may have at least a
superficial appeal, plaintiffs are not given carte blanche to undertake any and
all therapies which they believe will make them feel good.

[96]        
The point made by Ms. Choquette’s counsel that Ms. Hsu has
embraced various treatments with extreme enthusiasm is well taken. But in light
of all of the evidence, including the fact that several of the treatments have
been recommended by her doctor, I see this as an indication of her strong
desire to manage her pain and become more functional, rather than of a
speculative indulgence in every conceivable therapeutic possibility. I can also
see no basis other than speculation to disallow a portion of Ms. Hsu’s MRI
on the basis that it must have had a purpose in addition to a therapeutic one,
such as litigation, as Ms. Choquette’s counsel has suggested.

[97]        
I consider the out-of-pocket amounts incurred for her treatment to have
been reasonable and necessary, in light of her dedication to obtaining relief, and
I am prepared to award the total amount claimed of $12,422.52

4.              
SUMMARY

5.              
COSTS

[98]        
My preliminary view is that Ms. Hsu has had substantial success on
all of the issues of importance in this trial and should receive her costs as a
result. However, if there are any matters affecting costs that counsel wish to
raise they are free to make arrangements to speak to costs, provided that they
contact Supreme Court Scheduling within 30 days of these reasons being issued
to arrange a date.

The
Honourable Mr. Justice T.A. Schultes