IN THE SUPREME COURT OF BRITISH COLUMBIA
| Citation: | Lin v. Yim, |
|
| 2019 BCSC 1071 |
Date: 20190703
Docket: M147844
Registry: Vancouver
Between:
Christina Lin
Plaintiff
And
Kin Man Yim
Defendant
Corrected Judgment: The judgment was corrected on the front page on
July 5, 2019.
Before: The Honourable Mr. Justice Bowden
Reasons for Judgment
| Counsel for Plaintiff: | K.J. Miles C. Caldwell |
| Counsel for Defendant: | E. Bell N. Badesha |
| Place and Date of Trial: | Vancouver, B.C. April 8 - 12, 2019 |
| Place and Date of Judgment: | Vancouver, B.C. July 3, 2019 |
[1] The plaintiff, Christina Lin, seeks damages for personal injuries suffered in a motor vehicle accident on December 21, 2012.
[2] Liability is admitted by the defendant, Kin Man Yim, and only the quantum of damages is at issue in this action.
[3] The plaintiff was a front seat passenger in a Honda Accord while it was stopped at a red light and struck from behind by a vehicle driven by the defendant. She was wearing a seat belt and the head rest of the seat was in the proper position. The plaintiff described the contact as a “hard impact”. Photographs in Exhibit 1 show damage to the rear of the Honda. There is no other evidence as to the force of the impact. There was no need for the police or an ambulance to attend the scene of the accident. After the drivers exchanged contact information, the plaintiff continued on her way to the movies.
[4] The plaintiff was 22 years of age at the time of the accident and 28 at the time of trial. She graduated from J.N. Burnett Secondary school in Richmond, British Columbia in 2008. Her grades were very good and she was invited to attend the University of Victoria, Simon Fraser University and the University of British Columbia. She began attending UBC in September 2008.
[5] Shortly after starting first year at UBC her parents separated and her father left the family home. She said this was very difficult for her and things “started to unravel” in her life. She became depressed and withdrew from her courses in the Fall term of 2009.
[6] She attended UBC again in March 2010 but withdrew from classes shortly thereafter. She attended again from September 2010 until April 2011 and completed a co-op program in Markham, Ontario from May to August of 2011.
[7] She enrolled at UBC from September 2011 to April 2012 but failed the year and was required to withdraw. She did not re-enrol in September 2012.
[8] After the accident, she attended Kwantlen College from September 2013 until December 2014 and then returned to UBC for the 2015-2016 and 2016-2017 academic years. She has not attended university since then. She presently has to successfully complete three courses to obtain a Bachelor of Arts degree and hopes to return to UBC in September 2019.
[9] She has worked for her father in his business since graduating from high school and has continued to work there since the accident. The business involves the sale of massage chairs and equipment. She deals with customers, attends to cleaning and arranges deliveries for which her father pays her an “allowance”. Since the accident her father says that she has been working at a slower pace and has difficulty lifting heavy items. She is not claiming a loss of past wages.
[10] As a witness, the plaintiff was not always clear in her testimony. She had difficulty remembering the chronology of events and occasionally she would guess. For example she thought that her parents had separated “a couple of years ago”. If that event occurred in her first year of university that would have been over nine years ago. When she went to Kwantlen College, she said that she thought she was employed but did not say where.
[11] Her explanation for not pursuing swimming as a rehabilitative exercise seemed implausible. She testified that when she was attending high school, she spent many hours a day in the pool training for competitive swimming. However, she explained that when she tried swimming for the purpose of rehabilitation, she would get sick at the pool. While some of her evidence was likely not reliable, she was nevertheless a credible witness.
[12] Before the accident, the plaintiff was quite active. She exercised at a gym quite often doing cardio and lifting weights. She biked regularly including the Stanley Park seawall and the Steveston area. She was a competitive swimmer and practised early in the mornings before school. She was also a good snowboarder and ice-skater. She enjoyed an active social life including late night dancing.
[13] She has had only one prior injury which involved her tailbone where she had been kicked. The symptoms from that injury resolved before the accident except for a recurrence for about a week in 2016.
[14] She suffered, and continues to suffer, from depression which has resulted in hospitalization for treatment a number of times. She withdrew from some courses at university because of depression. She is currently using anti-depressant medication.
[15] The plaintiff testified that in the morning after the accident her back was sore. About three weeks later she went to a walk-in clinic. No records of that visit or subsequent visits to her family doctor were available apparently due to his retirement. She attended Dr. J. Hofer on six occasions commencing on November 5, 2014 and concluding on July 11, 2016. Over the course of those visits Dr. Hofer assessed her with neck, back and shoulder soft tissue injuries and pain. She was advised to visit a kinesiologist and attend physiotherapy and massage therapy.
[16] She was referred by her counsel to Dr. Gurdeep Parhar, for a medical legal report and he saw her on October 17, 2017. His diagnosis was that as a result of the accident the plaintiff incurred musculoligamentous injuries of the cervical, thoracic and lumbar spine, right and left shoulder strain and a depressed mood.
[17] The evidence is clear that Dr. Parhar was not aware that the plaintiff had been suffering from depression for a number of years before the accident.
[18] The defendant’s expert, Dr. Shalinder Arneja, diagnosed the plaintiff with whiplash-associated disorder type 2 symptoms as a result of the accident which I take to be essentially the same as Dr. Parhar’s diagnosis.
[19] The plaintiff testified that after the accident she followed Dr. Hofer’s recommendation and attended about 10 sessions of active rehabilitation. She said she goes to the gym a few times a month which is not as often as before the accident. She now uses the elliptical machine instead of the treadmill for running which she used before the accident. She said that she stopped snowboarding because she would experience pain and could not keep up with her friends.
[20] In 2013 or 2014 she received some physiotherapy and massage therapy. She also received micro-needling treatments which are similar to acupuncture and give her some temporary relief.
[21] She said that the pain symptoms, particularly in her neck and her right side, never went away entirely.
[22] She does take belly dancing lessons with her mother once a week but says that some motions cause her back to hurt.
[23] She says that sitting in a classroom or sitting to study became uncomfortable in 2017.
[24] She says that she began to distance herself from her friends because she gained 10 kilograms after the accident which she described as a significant amount of weight. She said that she lost the extra weight a few months ago. At the time of trial she appeared to be fairly slim and not overweight for her height.
[25] She continued to work at her father’s business after the accident and did not miss any days of work. During a work day she said that her bra straps cause her some pain. She said that she would feel “sore” at the end of a work day and she no longer has a work-out as she used to.
[26] Since the accident she will still go “clubbing” or dancing with her friends particularly when it is someone’s birthday. When she dances she said she experiences some pain.
[27] She has travelled to California to visit an ex-boyfriend. She has also travelled to Taiwan twice, to the Caribbean and to Mexico.
[28] She lives in an apartment in Burnaby with her father and brother. She is responsible for cleaning the apartment and tries to do that every day. She says she vacuums the apartment several times a day because her cat creates a mess. She also cleans the bathrooms and the kitchen. She is also responsible for the cooking and shops at Costco with her father.
[29] She hopes to be involved in a retail business of some sort in the future. She has applied to Air Canada to be a flight attendant but has not been called back since an interview. She says that she would not be able to lift heavy bags.
[30] The plaintiff obtained her driver’s license last year but finds shoulder checking to be painful.
[31] She says that sometimes her symptoms will require that she use two pillows to sleep.
[32] The plaintiff’s family doctor was Dr. Simon Shiu until he retired in 2014. Apparently due to his retirement, no records of her condition while he treated her were available. From November 2014 until January 2017, Dr. Jane Hofer became the plaintiff’s family physician until she went on maternity leave.
[33] Dr. Gurdeep Parhar became the plaintiff’s treating general practitioner after October 2017. The court accepted him as an expert in the field of family medicine and occupational and disability medicine.
[34] Dr. Parhar’s opinion is that as a result of the accident, the plaintiff suffered musculoligamentous injuries to her cervical spine, thoracic spine and lumber spine; right and left shoulder muscle strain, depressed mood and sleep disturbance. I understand that musculoligamentous injuries are essentially soft tissue injuries from what has been described as whiplash. It is notable that Dr. Parhar was not aware that the plaintiff had suffered from depression for a number of years before the accident.
[35] Dr. Parhar opined that as of her last attendance on October 1, 2018, the lumbar spine injuries and sleep disturbance had resolved.
[36] His prognosis was that her soft tissue injuries have now plateaued and her symptoms will likely continue for the foreseeable future. He recommended that the plaintiff avoid sustained postures of sitting and standing as well as repetitive, awkward posture and forceful activity particularly above shoulder height.
[37] Dr. Parhar recommended that future treatment include physio and massage therapy, as well as a personal fitness program that includes yoga and a pool program.
[38] An independent medical opinion was provided by Dr. Shalinder Arneja. She essentially agreed with Dr. Parhar as to the nature of the plaintiff’s injuries, namely, whiplash with whiplash-associated disorder type 2 symptoms involving her cervical spine and her lumbar spine. He agreed that the injuries were attributable to the accident. His prognosis was more optimistic. His opinion was that with a comprehensive treatment program, the plaintiff’s symptoms would probably significantly improve.
[39] The main difference in the opinions of Dr. Parhar and Dr. Arneja is in relation to the prognosis for the plaintiff and the cause of the plaintiff’s depression.
[40] As to the plaintiff’s depression, I attribute no weight to Dr. Parhar’s opinion that it was a result of the accident. He was clearly not informed that the plaintiff had suffered from depression for a number of years before the accident. The plaintiff did not assert a claim that the plaintiff’s depression was aggravated by the accident.
[41] As an orthopaedic surgeon, Dr. Arneja attained a high level of expertise in the diagnosis and treatment of musculoskeletal injuries. I found his evidence to be clear and independently founded.
[42] While I do not doubt Dr. Parhar’s expertise, I found that during cross-examination when it became apparent that he was not aware of the plaintiff’s pre-existing depression, he attempted to minimize the plaintiff’s pre-accident symptoms.
[43] I accept the evidence of both experts that the plaintiff suffered musculoligamentous injuries to her cervical spine, thoracic spine and lumber spine, and right and left shoulder muscle strain. However as to the prognosis, on balance I prefer the prognosis expressed by Dr. Arneja that with appropriate treatment, including an active rehabilitation program, physiotherapy, massage therapy and anti-inflammatory medication, the plaintiff’s symptoms will probably improve significantly.
[44] The plaintiff in a personal injury action has a positive duty to mitigate his or her damages. The onus is on the defendant to prove that the plaintiff acted unreasonably in not following the recommended treatment for his or her injuries. (Graham v. Rogers, 2001 BCCA 432; Carillo v. Deschutter, 2018 BCSC 2134)
[45] Some of the treatment recommended for the plaintiff by Dr. Parhar was exercise, exercise therapy, massage therapy, physiotherapy, and kinesiology with a personal trainer. The plaintiff testified that she attended Mountainview Kinesiology for active rehabilitation around 2013 however she was not able to say how frequently she attended. In her examination for discovery, the plaintiff said she attended Mountainview every couple of months because she got busy and sometimes left for trips.
[46] I accept that the plaintiff did take some reasonable steps towards her rehabilitation and I am not satisfied that had she done more her symptoms would have improved earlier.
[47] While the injuries suffered by the plaintiff adversely affected her ability to participate in some of the physical activities that she been involved in before the accident and she may suffer pain from time to time in the foreseeable future I do not accept that the injuries impacted her life to the extent that she claims. Fact patterns that resemble the plaintiff’s circumstances may be found in Lees v. Compton, 2013 BCSC 1015; Haroon v. Basran, 2015 BCSC 794 and Smith v. Evashkevich, 2016 BCSC 1228. Unlike Haroon v. Basran, I do not find that the plaintiff failed to mitigate her damages.
[48] In my view, an appropriate award for non-pecuniary damages is $60,000.
[49] While the plaintiff works for her family business selling massage equipment she testified that she has hopes of one day opening her own retail business. She has not taken any business courses in university as she is of the view that running a business is easy and does not require her to take a course. She does sell some luxury makeup products online but there is no evidence regarding any income derived from that activity. She does not appear to have any plans as to when or what retail business she might operate in the future.
[50] The plaintiff seek damages in this category based on the minimum wage in British Columbia and the real possibility that she will suffer loss in the future when she has to compete in an open job market with pain that will not resolve and impairment that prevents her from taking job opportunities that are open to others. That position flies in the face of the evidence that the plaintiff has not missed any work days in her family business as a result of her injuries. Furthermore, she has managed to run the family business alone during her father’s long absences and may continue to run that business in the future. While there has been some accommodation by her father the fact that she has continued to work at her father’s business particularly while he is away for over two months a year, indicates that she is capable of working in a similar capacity for another employer. While she says that prolonged standing and sitting causes her discomfort, there is no evidence that she could not be employed in a job that does not require lengthy periods of sitting or standing or lifting heavy objects.
[51] In my view, the plaintiff has failed to prove that there is a real and substantial possibility of a loss of income in the future. (Perren v. Lalari, 2010 BCCA 140)
[52] The cost of future care recommended in Dr. Parhar’s report included the one-time cost of an ergonomic assessment, massage therapy, physiotherapy, an active rehabilitation program to strengthen the injured areas of her body and a personal fitness program.
[53] While the defendant agrees that the expenses claimed by the plaintiff are supported by the recommendations of the medical experts, the defendant says that the plaintiff has not established that she will actually incur all of the expenses claimed. It must be likely that the plaintiff will incur the costs of such care before an award can be made under this head of damages. (Izony v. Weidlich, 2006 BCSC 1315).
[54] In my view the appropriate future care costs should be as follows:
1. The cost of the active rehabilitation program recommended by Dr. Arneja two to three times a week for a period of 12 weeks followed by a maintenance program at the rate of $95 per session for a total of $5,000.
2. While there is some question as to whether the plaintiff will attend physiotherapy and massage therapy on a regular basis, based on the expert evidence such therapy should improve her condition and she may now be motivated to take advantage of the therapy. The total cost of physiotherapy 12 times a year at the rate of $80 per session and the cost of massage therapy 12 times a year for a period of 10 years is $21,725. Based on Dr. Arneja’s prognosis, no award is made under this category beyond a period of 10 years.
3. $588 for an ergonomic assessment.
[55] The total award for future care is $27,313.
[56] The parties agree that special damages should be $828.
| Non-pecuniary damages | $60,000 |
| Loss of future earning capacity | Nil |
| Cost of future care | $27,313 |
| Special damages | $828 |
| TOTAL | $88,141 |
[57] Costs are awarded to the plaintiff at Scale B.
“Bowden J.”
| Filename: | J:/jdb-txt/sc/19/10\2019BCSC1071cor1.htm |