Chan v. Lee,


2008 BCSC 594

Date: 20080520

Docket: M100127

Registry: New Westminster


Susanna Yuen Shan Chan



Holtung Kinston Lee


Before: The Honourable Mr. Justice Cullen

Reasons for Judgment

Counsel for the plaintiff

G. Smith

Counsel for the defendant

C. Friesen
K. Brooks

Date and Place of Trial/Hearing:

February 14 – 15;
April 11, 2008


New Westminster, B.C.

[1]                This is an action for damages for personal injury arising out of an accident which occurred on July 24, 2004 on Nanaimo Street, in Vancouver.  The plaintiff was a passenger in the right front seat of a Jeep Cherokee being driving by the defendant, Holtung Kinston Lee (“Kinston Lee”), who was then the plaintiff’s boyfriend, and is now her husband.  The vehicle was travelling southbound on Nanaimo Street, when it collided with the rear of a vehicle which had come to a stop after colliding with the vehicle in front of it.  The accident caused the air bag in front of the plaintiff to deploy.

[2]                Liability is not in issue.

[3]                The plaintiff’s claim is that the accident caused her several injuries consisting of sprains to the muscles and ligaments in her neck and back, a myofacial pain syndrome and/or a pain disorder (a psychiatric condition) and post-traumatic stress disorder.

[4]                It is the plaintiff’s contention that her condition, caused by the accident, has affected her lifestyle and, although she has not missed any work, it has been at the expense of her recreational activities which include jogging, hiking, rowing, snowboarding, volleyball, exercising and yoga.

[5]                The case called on behalf of the plaintiff consists of her evidence, the examination for discovery of the defendant, read in by counsel for the plaintiff, and the expert reports of the plaintiff’s family doctor, Dr. Lloyd Jones, her physiotherapist, Kelvin Tam, Dr. Ansel Chu, a medical doctor with a specialty in physical medicine and rehabilitation, who was retained by the plaintiff to conduct an independent medical examination, and Dr. Du-Fay Der, a psychologist to whom the plaintiff’s counsel referred her for counselling in June 2007. 

[6]                Dr. Chu, Dr. Der and Mr. Tam were tendered for cross-examination by counsel for the defendant.  The evidence of the defendant consisted of three medical-legal reports from Dr. J.F. Schweigel, who was retained by the defendant to conduct an independent medical examination of the plaintiff.

[7]                Dr. Chu examined the plaintiff on September 28, 2007 in preparation of a medical-legal report which he produced on October 1, 2007.  His practice and his specialty involves seeing patients with musculo-skeletal and neurological problems, as well as those suffering from chronic pain.

[8]                He identified the plaintiff’s presenting complaints as intermittent right side neck and upper shoulder girdle and scapular pain as well as bilateral low back pain. 

[9]                On examination of the plaintiff he found no significant mechanical problems with her spine or shoulders by which he meant no pain or dysfunction with the mechanical structures of the spine “such as the discs and facet joints and ligaments or bony structures.”

[10]            His examination also revealed no significant soft tissue or muscular pain in the right side of the neck, upper shoulder girdle, right peri-scapular area, or across the low back. 

[11]            He wrote:

I suspect she has soft tissue myofacial pain which, at this point, is intermittent and today it doesn’t bother her.

[12]            Dr. Chu noted soft tissue myofacial syndromes come and go and are exacerbated by activities such as keyboarding, which require a person to be static for a long time, causing the muscles to tighten up.  He explained in his evidence that myofacial pain syndrome is a central nervous system disorder “with peripheral manifestations of muscle tightness and soreness to palpation over areas called trigger points … areas in the muscles that are rich in nerve endings.”  He asserted it can produce a tight band and nodules that reproduce pain and can refer pain into other areas of the body.

[13]            On his examination of the plaintiff he found no significant trigger points, only some mild tightness in her upper shoulder girdle or trapezius area.  He also noted that there was no neurological compromise.

[14]            Dr. Chu explained that the whiplash caused by the motor vehicle accident caused the acute pain and injury which the plaintiff suffered, but that the development of the myofacial pain syndrome is related to other factors including mood disturbance, anxiety, coping abilities and various stressors.  He described the motor vehicle accident as “considered to be the initiating incident, but with the other factors playing a role in the development of the chronic pain syndrome.” 

[15]            Dr. Chu found no musculo-skeletal pathology or impairment, save for some residual anxiety with which the plaintiff could function.  As far as disability is concerned, he defined it as being “the gap between what one can do and what one is expected to do to meet vocational and a-vocational goals and duties”.  He opined that the plaintiff “has very little in the way of disability”.  She has “the chronic soft tissue pain that flares up every so often that limits her to a small degree in terms of her work chores and leisure activity”.  He noted however that she is able to carry on with her various activities by cutting back a little and modifying some of her exercises.  He also noted that none of her work activities or household chores were affected.  Dr. Chu’s prognosis was good.  He opined that she could carry on with all of her activities despite the myofacial pain syndrome and would not be causing damage to herself by doing so.  He opined that she was not at risk for any “accelerated degenerative changes”.  Dr. Chu agreed with the suggestion by defence counsel that based on his examination and interview of the plaintiff, she suffered a typical whiplash injury that improved significantly and that when he saw her, she reported only mild pain.  He concluded, based on her report to him, that she had residual intermittent pain and agreed that his examination did not reveal the presence of any significant pain or of any “trigger points”.  His conclusion that she had trigger points was based on “other parts of her history” rather than his examination.  Dr. Chu acknowledged that although reporting she had no previous neck or back problems before the motor vehicle accident, he became aware subsequently that she had some lower back treatments before the accident.

[16]            He agreed her “residual anxiety” was only in relation to motor vehicles and it did not impair her life as she was able to work and go on vacation and there was no indication that her nervousness spilled into other areas.  He described the anxiety as situational rather than clinical.  He recommended exercise and agreed that there was “a good prognosis for a full recovery”.

[17]            Dr. Chu noted in his report that on his review of the plaintiff’s medical records, there was no mention of low back pain until October 31, 2004 when she complained of low back pain to her doctor.

[18]            Ms. Chan started physiotherapy at the Kelvin Physiotherapy Clinic following the accident on July 31, 2004, going there for approximately 11 or 12 weeks, for a total of 19 visits until she was discharged on November 29, 2004.  She returned to see Mr. Tam for physiotherapy again in March, April, May and June of 2005, two visits in March, two visits in April, two in May and one visit in June.

[19]            In his evidence, Mr. Tam acknowledged that he saw the plaintiff on December 29, 2003 about seven months before the motor vehicle accident.  At that time, she was complaining of tightness in her right shoulder.  On palpation he found a spasm in the right shoulder, a spasm in the mid back (mild).  She complained of mild pain in her pelvis and right side lower back pain (moderate).  She also complained of muscle spasm in her right thigh from her hip to her knee.  He confirmed that in his clinical notes, the number “840” was a billing code for shoulder pain or injury.  On her next visit on January 17th she reported no change in her right shoulder and back and that he was treating her right shoulder, neck and back.

[20]            On February 27th, 2004 she attended complaining that her thoracic spine was locked and he also noted she had a shoulder injury at that time.

[21]            On March 13, 2004 her shoulder, upper back and hip were all implicated.

[22]            Again on April 12, 2004 as well as on March 13, 2004, his billing code indicated that he was treating her for shoulder pain.

[23]            He agreed that the first post motor vehicle accident visit was July 31, 2004 and she was referred for neck, shoulder and upper back problems on July 29th.  She had 19 visits until she was discharged on November 29, 2004.  He agreed that he made no note of any pain or spasm in the lower back, right hip or thigh on July 31st.  There is no indication of shoulder symptoms at that time, as he did not use the code “840”.  The symptoms were just in the upper back and neck.  In his report dated June 28, 2005 he noted on page 2 that the major complaint was the neck and upper back and he concluded that the accident caused that and he treated her for those areas. 

[24]            Mr. Tam agreed that Ms. Chan improved steadily with his treatments to the point where on August 20th, she reported good improvement and he identified a 40% - 50% decrease in pain.  He also noted that her range of movement improved and that when he discharged her on November 29, 2004, her symptoms were substantially reduced and he gauged her to be 80% - 90% improved.

[25]            He agreed that she complained of no lower back pain before her discharge and that she did not complain of any hip or thigh pain during that same period.  At no time did he note the billing code for treatment of any shoulder injury nor did he have any notes of treating her shoulder.

[26]            He agreed he saw the plaintiff again on March 5, 2005 and she told him that she had been working long (12 hour) days.  At that time she was complaining of her neck, shoulder, upper and lower back tightness.  He agreed it was mild discomfort and her reports were “subjective”.  She complained of tightness in the right pelvis and that was the first time that she complained of that since the accident.  Thereafter she had another visit in March, two in April, two in May and one in June.  He agreed that by June the plaintiff’s range of movement of her neck was normal and she had one last visit in July 2005.  He testified he could not remember whether at any time she asked for any ergonomic products to help relieve back pain or tightness.

[27]            On re-examination he indicated that later signs and symptoms of back injury can be caused by compensatory problems.  That is, if a patient is compensating for an injury to one part of her back, it could eventually create problems in another part of her back.  He agreed with the suggestion by counsel for the defendant that the plaintiff was always able to exercise. 

[28]            In his report, Dr. Der reported that Ms. Chan “exhibited many symptoms of post-traumatic stress disorder” (“PTSD”). 

[29]            Dr. Der set forth the symptoms identified in the Diagnostic and Statistical Manual of Mental Disorders 4 (“DSM 4”) as indicative of PTSD.  He concluded, based on his assessment interviews with Ms. Chan, that she “was suffering from almost all of the above symptoms of PTSD”.

[30]            He described her as “shaken up and in shock” following the accident, that she “had fears and anxiety whenever she thought of the motor vehicle accident”, in the first few months just talking of the accident would bring up intense fear, anger and frustration and that she still feels anxiety talking or thinking of any car accidents.  He related that certain situations would trigger anxiety and fear, which he characterized as flashbacks, especially in traffic and that she had, and still has, difficulty in falling asleep and staying asleep as a result of the pain.  He said she reported that she was unable to stop her fearful feelings and often she yelled at her husband for speeding, even though she tried to restrain herself.  He described her as becoming depressed, moody and irritable after the accident, having difficulty in concentrating and focussing, and having lost her drive and motivation.  He described her as “physically unable to participate in her normal activities because of injuries to her body” which “frustrated her” because she had been an active individual “in excellent physical shape”.

[31]            Dr. Der also indicated that the plaintiff “revealed many symptoms of pain disorder” which, according to the DSM 4, is indicated if:

a.         the pain in one or more anatomical sites is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention;

b.         the pain causes clinically significant distress or impairment in social, occupational, educational or other important areas of functioning;

c.         the symptom is not intentionally produced or feigned, and

d.         the pain is not better accounted for by a mood, anxiety, or psychotic disorder.

[32]            It was Dr. Der’s conclusion that Ms. Chan exhibited the symptoms indicated in those categories, concluding that “the pain … affected her sleep, her moods and her perception of herself as a person.  Although she went to work, she stayed home when she was not working and avoided friends and social situations, she was unable to participate in any type of leisure activities or athlete sports for months after the MVA.”  He reported:

After this MVA of July 24, 2004 Ms. Chan experienced many depressive symptoms and the symptoms were compounded by her constant body pain.  Always led an active life – she felt depressed because of her inability to participate in sports activities and she felt she had no control over his (sic) life.  She was moody and irritable often (a fact that she hid from others) and she had no interest in those things she used to enjoy, like many sports activities, socializing with friends, and other recreational activities.  She often felt tired and had no motivation.  Prior to the MVA she always had goals and worked hard to achieve her goals, whether at work or in athletics.  For some time, she felt hopeless and helpless and lost confidence in herself he (sic) was moody and often irritable.  She did not like her life of pain, worries and fearfulness because of the MVA.

[33]            In her evidence, Ms. Chan took issue with some of Dr. Der’s comments about her.  She did not agree that before the accident she was “in excellent physical shape”.  She expressed uncertainty whether she saw herself as a person who had changed.  She felt Dr. Der overstated the situation when he said she was unable to participate in her previous activities.  She said it was just that she didn’t participate to the same extent and she had a lack of motivation.  She did not agree that she felt “hopeless and helpless and had lost confidence”.

[34]            In cross-examination, Dr. Der agreed that he did not see the plaintiff until June of 2007, some three years after the accident, and that he only saw her for four sessions June 16th, July 15th, July 22nd and July 28th, each of which was one hour in length.  He agreed that he asked her questions and also gave her some treatment and that his opinions were based on his four sessions with her.  He agreed he gave the plaintiff no written tests, although there are tests that can be given to indicate the presence of PTSD or pain syndrome.  He agreed there was a diagnostic checklist, but he said he used it “in his mind”, that he knew about it from his memory.  He agreed that the questions on the checklist assist in making for a reliable diagnosis.  He agreed he did not review any documents or any clinical records related to the plaintiff to get details about her complaints and that it would show her progress.  He agreed that he didn’t ask to see any clinical records, even though he expected that they would exist.  He agreed that they could have clarified the plaintiff’s history and it would be useful to have all relevant information.  He agreed he didn’t speak with any “collateral” sources that could provide him with information about the plaintiff, he didn’t see her employment file, but he only relied on her.  He agreed that he looked at three medical-legal reports written in connection with the plaintiff but only after he had written his report.  He agreed he relied on the DSM 4 in his diagnosis and he agreed that in his view, the plaintiff exhibited all symptoms for pain disorder and all symptoms for PTSD.  He agreed that pain disorder can severely disrupt a person’s daily life and that psychological factors play an important role.  He agreed that in the DSM 4. there were five listed symptoms, not four, for pain syndrome, as he had indicated in his report and that the plaintiff had to meet all five to be properly diagnosed with pain disorder. 

[35]            The criterion which he missed in his report was that “psychological factors are judged to have an important role in the onset, severity, exacerbation or maintenance of the pain.” 

[36]            Dr. Der agreed that the plaintiff had been diagnosed with whiplash from which she had acute pain, but was improved.  He did not know, however, that she had a full range of motion and was judged to be 80% - 90% improved after taking physiotherapy treatments for four months.  He also did not know that she was never referred by any of her medical care givers for pain treatment or medications and was not referred to any medical specialists for her condition.  He did not know that her general practitioner gave her an excellent prognosis.

[37]            Dr. Der agreed that if the plaintiff found her injuries severe, he would have expected a different presentation from the plaintiff to her caregivers.

[38]            He was aware that she never missed a day of work, but did not know that she required no accommodation at her work.  He assumed that her pain was a major focus for her but he had not previously read Dr. Chu’s report to the effect that the plaintiff “has difficulty relating her symptoms because she doesn’t really pay attention to them.”  Dr. Der testified that usually people don’t talk about their pain.  He said that she told him the pain affected her concentration, that she couldn’t work on the computer for very long and she “couldn’t do some jobs.” 

[39]            He did not know that the plaintiff never used any medications and did not know about the plaintiff’s activities including her trips to Montreal and Toronto, hiking, planning her wedding, playing volleyball, taking a trip to Turkey and Greece, and he was unaware that she was planning a trip to Spain and Morocco or planning to have children when he saw her.

[40]            He agreed that to qualify as pain disorder, the plaintiff’s condition must affect her life significantly, but he said “it’s also episodic”.

[41]            Dr. Der agreed that anxiety was a fear or dread that was disproportionate to the circumstances that engendered it.  He agreed that he taught the plaintiff relaxation techniques and that that helped her to reduce her anxiety.  He agreed that other stressors caused anxiety and in her case, things such as the litigation coming trial, being newly married and getting pregnant were all factors that could cause anxiety.

[42]            With regard to post traumatic stress disorder, Dr. Der agreed that there were six criteria or factors necessary to a diagnosis of PTSD and that the patient needed to meet all of those criteria to be properly diagnosed.  He agreed that the plaintiff did not meet all six criteria. 

[43]            According to his report, the criteria are as follows:

A)         The person has been exposed to a traumatic event in which both of the following were present:

            (1)        The person experienced, witnessed, or was confronted with an event (e.g. motor vehicle accident) that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others

            (2)        The person’s response involved intense fear and helplessness.

B)        The Traumatic event (e.g. the motor vehicle accident) is persistently re-experienced in one or more of the following ways:

(1)        Recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions.

(2)        Recurrent distressing dreams of the event

(3)        Acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated)

(4)        Intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event

(5)        Physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event

C)        Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:

(1)        Efforts to avoid thoughts, feelings or conversations associated with trauma

(2)        Efforts to avoid activities, places, or people that arouse recollections of the trauma

(3)        Inability to recall an important aspect of the trauma

(4)        Markedly diminishing interest or participation in significant activities

(5)        Feeling of detachment or estrangement from others

(6)        Restricted range of affect (e.g., unable to have loving feelings)

(7)        Sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)

D)        Persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:

1.         Difficulty falling or staying asleep

2.         irritability or outbursts of anger

3.         Difficulty concentrating

4.         Hyper-vigilance

5.         Exaggerated startle response

E)        duration of the disturbance (symptoms in criteria B, C and D) is more than 1 month

F)         The disturbance causes clinically significant distress or impairment in the social, occupational, or other important areas of functioning.

[44]            He was cross-examined about his knowledge of the extent to which she was affected by the motor vehicle accident and whether her response involved “intense fear and helplessness” as well as whether what she experienced involved actual or threatened death or serious injury or a threat to the physical integrity of herself or others. 

[45]            He was also cross-examined whether and to what extent the plaintiff persistently re-experienced the event and essentially said that a person can have flashbacks and not know that you were experiencing them.  He said that the plaintiff did not tell him in so many words that she was having flashbacks, but that was the effect of what she was telling him.  In relation to the question of whether the plaintiff persistently avoided stimuli associated with the trauma, he agreed that if she drove to work daily for approximately 20 minutes in rush hour traffic that did not appear to accord with paragraph C of the diagnostic criteria.  He testifed that she did not like to talk about the trauma and suggested that she may not be able to recall important aspects of it.  He was unaware that she had become engaged and married within ten months of the accident and was not aware whether she had any sense of a foreshortened future.  He wasn’t able to outline in any detail what effect the disturbance on the plaintiff had on her social, occupational or other areas of functioning.

[46]            In her evidence, the plaintiff recounted that she is 31 years old, and graduated from the University of British Columbia in May 1998 with a Bachelor of Science degree.  In January 1999 she began working as a laboratory assistant in the medical biophysics unit with the B.C. Cancer Agency.  In November 1999 she was promoted to the post-production technician at the G-Gnome Sequence Centre (“GSC”) of the B.C. Cancer Agency.  In May 2002 she was further promoted to the position of R.A.I.I. Expression Technologist and Assistant Production Coordinator at GSC. 

[47]            She described her work as involving bench work in a laboratory as well as sitting in front of a computer.  She is responsible for two technicians of the GSC and much of her work is repetitive in nature.  She is able to stand in the lab at the bench, but not when she’s in front of a computer. 

[48]            In terms of her recreation between 1999 and 2004 she testified would run two to three times per week from 5 to 8 kilometres per occasion, she would attend the gym one to three times per week to do weight training, cardio exercises, including an elliptical and treadmill workout.

[49]            She also hiked; she estimated two to three times in the spring and summer she would do the Grouse Grind from time to time, which she was able to complete in an hour, and would also hike at the Chief in Squamish.  Her hikes would be between 4 and 7 hours. 

[50]            She played volleyball 8 – 10 weeks a year and tried yoga one to two times before the accident. 

[51]            As far as rowing was concerned, for four seasons before the accident, she would row two times a week during the evening, although she did not participate in 2004 as she was unable to get a team together to compete.  She testified that she snowboarded for the past ten years around 4 – 8 times a season. 

[52]            She identified neck and back problems prior to the accident in December of 2003 to April of 2004 for which she received physiotherapy several times, a pelvic adjustment, and she testified she had little or no pain after April 2004.  She said she was feeling “okay” as of the accident.

[53]            When she was asked to describe the accident, she evidenced a very emotional response and had some difficulty in getting through her description of the accident, breaking down in tears several times.

[54]            She testified as they were driving along Nanaimo Street, travelling southbound, she was in the right passenger seat of the vehicle which was being driven by her then boyfriend (now husband), the defendant Holtung Kingston Lee.  She heard a screech, her body went forward and hit something.  She testified she panicked, she was shaking and scared when she got out of the vehicle.  She testified it hurt her to sit and so she tried to keep moving.  The paramedics came, they checked her out and gave her some ice.  She called her brother, who came and drove her to her mother’s where she was living and she stayed there for the balance of the day. 

[55]            She estimated the speed leading up to the accident was 60 – 70 kph before the impact and she was unsure whether the defendant braked or not before impact. 

[56]            She said she did not take herself back to the moment of the accident often and the emotional response she had to recounting the details was not confined to the courtroom. 

[57]            She said she talked to Dr. Der, a psychologist, whom she first saw in 2007 and he has assisted her in dealing with her emotional response.  She said at various times following the accident she experienced emotional problems.  She was asked to review the various reports that were submitted on her behalf including that of Dr. Lloyd-Jones, Mr. Tam and Dr. Der. 

[58]            So far as Dr. Lloyd-Jones’ report was concerned she agreed the symptoms he recounted were accurate, but she felt an irritation in her throat which was not noted and it was not noted that she had a headache on her initial visit, nor does it mention the “anxiety and embarrassment” that she was experiencing.  She also corrected the fact that the report said on June 4th that she saw Dr. J. Kerins.  She said on that occasion she saw her own doctor, Dr. Lloyd-Jones.  She said she was still having some back pain and if the report implied that her back pain was resolved, then it was not accurate. 

[59]            Insofar as Mr. Tam’s report is concerned, she agreed that it accurately recounted her history. 

[60]            In relation to Dr. Chu’s report, she wanted to clarify several things including the fact that under the heading “present complaints”, Dr. Chu indicated her pain ranged from zero up to seven out of ten.  She testified she was not comfortable giving number references for the extent of her pain.  She also didn’t recall telling Dr. Chu that she experienced more pain when she was reading and had her head down.  She didn’t think that was accurate.  She also didn’t know if it was accurate where it said that she could get up to seven or eight out of ten on the pain scale.  She testified that she was “not sure if that’s the case or not.” 

[61]            With respect to Dr. Der’s report she disagreed with some of his descriptions of her. 

[62]            In particular, she disagreed with his observation that she “had no interest in those things she used to enjoy like many sports activities, socializing with friends and other recreational activities”.  She testified she was still very interested in those activities, but that she simply didn’t feel motivated because she was physically unable to do some of those things.  She contested his characterization of her as being moody and irritable and she said she could not agree with his statement that she “felt hopeless and helpless and lost confidence in herself”. 

[63]            She agreed that she was learning techniques to deal with her stress but she still reacted to it.  She said she was more confident as a driver and was better as a passenger than she had been before.

[64]            She was asked about her symptoms in the more recent period.  She said she still had pain in her neck and back.  She gave an example of her involvement in indoor rock climbing in 2007, that she would be holding the rope for others doing the climbing and straining to look up, which would affect her neck and back.  She described the activity as “very stressful and challenging”.  She said she was not back to her normal level of activities.  She said it was partly motivation.  She found it discouraging because you could not do the exercises she had done before, and she couldn’t run as long as she had before. 

[65]            She was asked whether she had improved since the accident and she agreed that she had improved physically, but said emotionally she hadn’t improved although she was learning ways to help her relax and keep calm.  She said in a car she will react when she feels in a dangerous situation or where other cars make sudden movements or where she sees brake lights.  She testified that she was learning to cope with such circumstances rather than verbally express her fears. 

[66]            In cross-examination she agreed that she drove to the courthouse for her trial.  She agreed that she had deadlines at work and she needed to be accurate and careful and meet the deadlines.  She agreed her work took lots of focus and concentration and was intellectually challenging. 

[67]            She agreed that she could be working on specific projects while coordinating the activities of two others and has a variety of other responsibilities in her job.  She regularly worked a 36 hour week but sometimes she worked longer if a deadline had to be met and she agreed she worked up to twelve hours a day between December of 2004 and March of 2005 or the end of February.  She agreed that she never missed any work (except for attending the examination for discovery) and that she received no accommodation at work as a result of the effects of the accident.  She agreed she interacted well with others at work and she received positive performance reviews.  She was asked if she was able to carry out her job or activities without difficulty after the accident and she said initially after the accident when she had to sit in front of a computer and her back would tighten up, so she would stop and stretch more than previously. 

[68]            She agreed that she drove to and from work regularly and it would take from 15 to 35 minutes depending on the time of day.  She said about 60% of the time she was a passenger when her husband was driving and 40% of the time she would drive herself. 

[69]            She agreed that since July of 2004 she was active with a number of sports teams and involved in other physical activities.  She took a trip to Montreal and Toronto and drove between those cities with her husband.  While in Montreal they shopped, they walked and they hiked up Mont Royal.

[70]            In 2004 she played drop-in volleyball and in April of 2005 she joined a rowing team with a season that concluded with a Regatta in June. 

[71]            She rowed two times a week, attended competitions and sat in the “stroke seat” where she would set the pace for the rest of the team.

[72]            She agreed that in May of 2005 she went for a hike in Port Moody.  It lasted about 6 hours and they went 7 kilometres each way, and it was on that hike that she got engaged.  She said she had to stop several times during the hike, but for parts of the hike she carried a small backpack.

[73]            She moved into her condominium in 2005 with the help of her three brothers.  She was married in January of 2006 and she and her husband put on a banquet for 190 people in March 2006.  She went out with some friends prior to her marriage and went Salsa dancing. 

[74]            In September 2005 she joined a volleyball team with the defendant and other friends.  During the season the defendant injured himself and was not able to run or ski because of that injury.  She snowboarded in 2005 and 2006 but was not a frequent snowboarder either before or after the accident.  She continues to attend the gym in her condominium building one to two times a week for fitness, attend “sculpting” classes and she and her husband went to Europe for their honeymoon in April 2006 where they visited Greece, Turkey and London.  They both flew and travelled by bus.  They hiked and went sightseeing.  She recalled that she had to stretch because of her back and neck pain. 

[75]            In the spring of 2006 she did not row or play volleyball because she was on her honeymoon and also because the defendant was unable to play volleyball.  She also said she didn’t feel motivated.  She testified it wasn’t that she was unable to do it, it was just discouraging to her that she could not do what she had done before.

[76]            She agreed she is presently playing volleyball one time a week and hopes to attend yoga.  She recently went to a “cardio boot camp” where she learned to do kickboxing and floor exercises. 

[77]            She has not been jogging or rock climbing since June of 2007.  In 2007 she attended the gym about four times per week and in September of 2007 she and the defendant took a trip to Europe, including Spain and Morocco and went on a bus tour of ten cities.  They did both walking and lots of driving in the course of that trip.

[78]            The plaintiff agreed she had other stressors in her life including a miscarriage in August 2007 and some concern with her mother’s health.

[79]            She agreed she had her first visit to a physiotherapist in 2001, several years before the accident and went again in 2003 and early 2004.  In early 2004, she was suffering from pain and spasm to her right shoulder and her pelvic area, as well as having several other complaints.

[80]            She agreed that following the accident she went to physiotherapy from July 31st, 2004 to November of 2004 where she experienced steady improvement until she was discharged in November.  She agreed that the physiotherapist assessed her at 80% to 90% improved, but she “didn’t know if she could say that was accurate”, although in her examination for discovery when asked that question she said “I suppose so.”

[81]            She agreed that following the accident, her first complaint of lower back pain was in late 2004 (Dr. Lloyd-Jones’ report notes in on October 31, 2004).

[82]            She agreed that on her first visit her complaints were to her upper back, neck pain and abrasions and about a year later, in June 2005 she complained of among other things, pain in her right shoulder.

[83]            She couldn’t remember when she first told any of her treating medical professionals about being nervous in a car.  She said her nervousness is not something she encounters daily, it arises during stressful situations in the vehicle.  She agreed it doesn’t prevent her from driving or being driven, and she agreed that she was never given or requested any prescriptions for that condition.  She agreed she did not think she needed any.

[84]            She said that Dr. Lloyd-Jones did not initially recommend psychological counselling, but later when he was asked about it, he said he would get her evaluated but had not provided her with any name as of the trial date.  She agreed that she took no time off work as a result of the accident, had no reduced hours and did not reduce her driving.  She agreed apart from Dr. Der she did not see any other psychologist.  She agreed she did not tell Dr. Lloyd-Jones she was moody or that her pain was the focus of her life or that she had recurring recollections of the accident.  She kept no “anxiety journal” and was not diagnosed with any panic attacks.  She agreed that she told Dr. Chu in September of 2007 that she had no problems sleeping and that she saw Dr. Der in June of 2007 at the request of her counsel. 

[85]            She said she had four sessions with Dr. Der, performed no written tests and underwent no physical examination.  She agreed that Dr. Der treated her by teaching meditation techniques and she was given tapes of her meditation sessions.  She said following the sessions she was able to get more restful sleep after using the meditation tapes and felt she was more relaxed in general.  She said she intended to go back and see Dr. Der but has not done so.  She said her last session was July 2007 and although he recommended further treatments, she has not gone back to see him or seen any other psychologists. 

[86]            She agreed that following the accident she did not go to the hospital, but went to a walk in clinic the following day.  Her complaints were upper back pain and abrasions to her legs.  She had no soreness in her lower back, pelvis or hip or shoulder and no shooting pain down her leg at that time.  She was given no medications, muscle relaxants or sleeping pills.  She went to work on the Monday following the accident.

[87]            It was in February 2006 that she first felt the pain in her right thigh and she agreed that she did not report any thigh pain to her physiotherapist in either 2004 or 2005. 

[88]            In re-examination she indicated that she had had some muscle spasm in her neck while on the European trip in 2006. 

[89]            Between December of 2004 and February of 2005 she was working long hours and felt pain in her back and possibly her shoulders.  She said it was hard to see the physiotherapist because of her long hours and she maintained stretching to relieve against the pain.  She said she has dreams about being in a car and the car in front of her braking suddenly.

[90]            In addition to her physiotherapy treatments, the plaintiff had massage therapy treatment on August 30, 2005, September 9, 2005, November 11, 2005, April 27, 2006, September 9, 12 and 23, 2006, October 28, 2006 and February 17, 2007.


[91]            In his examination for discovery, the defendant described the accident.  He said he was driving approximately 60 kms per hour, southbound along Nanaimo Street.  After being momentarily distracted, he looked up and saw brake lights in front of him, applied his brakes, and slid into the back of the vehicle in front of him, which was a Ford Expedition.  The airbags deployed and the plaintiff, who was in the front passenger seat had “open wounds” on her legs, to which the defendant applied gauze, before waiting for assistance.

[92]            At the scene of the accident, the defendant described the plaintiff as being very emotional, in tears, and “seemed to be in quite a bit of shock”.  He described her as overall very shaken and very traumatized.  He described her as still being in that state by the time they got to her mother’s place following the accident, and as still crying from time to time.

[93]            He described her as being affected emotionally when she was a passenger in his vehicle.  Since the accident he agreed with the suggestion that she was visibly tense and upset in the car and in driving situations.

[94]            He described her tenseness as “situational and it’s prevalent in certain situations”.

[95]            As to activity, the defendant agreed that her injuries prevented her from playing volleyball on a regular basis until the fall session in 2005. 

[96]            They described the hikes that they did prior to the accident and said that the hiking stopped following the collision until the summer of 2005 when they did “light hiking, moderate hiking, but not as often”.  He described the hike they went on when he proposed marriage to her in the Diaz Vista as being “pretty slow”.  He said they didn’t seem to have gotten back into hiking.

[97]            He described her running fairly frequently before the accident, but said following the collision she stopped running for some period of time and now “does the odd sporadic run”.  Similarly, as far as her rowing is concerned, before the accident she rowed fairly regularly, but after the accident he thought she was only on a rowing team one time. 

[98]            He described the plaintiff as being less motivated after the accident in doing physical activity such as attending the gym.

[99]            He was asked the following questions and gave the following answers:

Q         The sense I’m getting from you, sir, is that there were a number of activities that were fairly real activities for the both of you and that fairly significantly you’re not doing those activities anymore even still, is that a fair comment?

A          That’s fair.

Q         We’re now three years later.

A          Yeah.

Q         All right.  Have other activities come into place to replace those?

A.         No.  Not on a regular basis.

[100]        The defendant agreed that the plaintiff has worked full time since the collision and agreed with the suggestion that her activities outside of work have been affected by the consequences of the accident.  He also said she was not as motivated as previously to do work around the house as she may not feel up to the task.  He said that he tries to help out as best he can. 


[101]        Dr. Schweigel is an orthopaedic surgeon.  He conducted an examination of the plaintiff on November 19, 2007, and he also reviewed, among other things, clinical records from the Care Point Medical Clinic (Dr. Lloyd-Jones), the records and notes from Kelvin Physiotherapy (Kelvin Tam), Dr. Lloyd-Jones’ medical-legal report of February 13, 2006 and, following his examination of the plaintiff, Dr. Chu’s medical-legal report of October 1, 2007. 

[102]        Dr. Schweigel took a history from the plaintiff, who reported that the collision caused her to have neck pain, upper back pain, and low back pain.  She reported that at its worst, the pain from the motor vehicle accident was 6-7 out of 10, but at the time of her examination, she had no neck or upper back pain.  She reported that her lower back pain may have started 5 or 6 months after the accident.  She reported her neck, upper back and lower back felt tight on occasion.  She reported “some sharp pain into the right leg and left leg, mainly in the thighs” which developed some time in 2006.

[103]        Dr. Schweigel reported that on his examination of the neck or cervical area, he found “normal lordosis, no spasm, no deformity and no tenderness …”.  He made the same findings on his examination of her shoulders.  His examination of the plaintiff’s lower back disclosed nothing abnormal, with no spasm, deformity or tenderness with no pain caused by the various physical movements that she undertook in the course of the examination. 

[104]        His examination of the thoracic area (between the shoulder blades) similarly revealed no abnormalities. 

[105]        Dr. Schweigel diagnosed soft tissue injuries to the plaintiff’s neck, upper back and shoulders, along with some cuts and bruises.  He opined that she was not at risk for any degeneration or arthritis from the accident and required no surgery.  He concluded she had no disability from the effects of the accident. 

[106]        Based on his review of the records, Dr. Schweigel found no evidence “of any moderate or severe soft tissue injuries”, he noted that although Mr. Tam described moderate spasm on the left side of the neck and upper back, given the plaintiff’s minimal loss of motion in the cervical spine, it must have been minimal spasm.  He noted that Dr. Lloyd-Jones reported a full range of motion of the cervical spine about two months later on October 2, 2004, which supported the diagnosis of a mild or minimal spasm.  He also noted that although the plaintiff had two subsequent motor vehicle accidents in 2005 and 2006 (no evidence was given of those accidents) she suffered no aggravation from those accidents, which might be expected if her soft tissue injuries from the July 24, 2004 accident were moderate or severe.

[107]        So far as her low back is concerned, Dr. Schweigel opined that it was not related to the motor vehicle accident as there is no record of any low back pain contemporaneously with the motor vehicle accident.  He noted:

There is a basic premise in medicine that if a site has been traumatized, that site becomes symptomatic immediately, right after the MVA or certainly within the first few days after the MVA.

[108]        Dr. Schweigel described his physical examination of the plaintiff as “completely normal” and he regarded any soft tissue injuries she sustained in the motor vehicle accident as resolved.

[109]        He opined she required no further therapy and no further investigation.

[110]        Dr. Schweigel concluded, in a supplementary report dated November 30, 2007 that the plaintiff experienced in 2006 in her right and left leg (mainly the thighs) was unrelated to the accident, given the lapse of time between accident and onset.

[111]        In his final letter of January 14, 2008, Dr. Schweigel reviewed Dr. Chu’s letter, concurring with this conclusion that there were no significant abnormalities arising from his examination and characterizing his findings of tightness in her upper trapezius and tenderness in the glutei (buttock area) as subjective findings that don’t have a lot of significance unless associated with some other ascertainable condition.


(a)        The Plaintiff

[112]        It is the plaintiff’s contention that the evidence establishes that the accident has caused her long term ongoing ill effects including a chronic pain syndrome, PTSD and depression.  The plaintiff characterizes her initial physical injuries as ranging from mild to severe whiplash, triggering a central nervous system pain disorder known as myofacial pain syndrome, that continues, despite resolution of the initial injuries. 

[113]        The plaintiff says that she suffers from emotional injuries of PTSD, pain disorder and depression, which compound her physical condition.

[114]        The plaintiff submits that although she has resolutely lived up to her employment responsibilities, her ability to participate in and enjoy her recreational activities has been eroded by the physical and psychological/emotional consequences of the accident and she continues to experience a lack of motivation and symptoms of anxiety. 

[115]        Counsel for the plaintiff relies on cases which he submits are similar to the case at bar, including:

Unger v. Singh (2000) BCCA 94

Wagner v. Narang (2003) BCSC 1750

Harvey v. Tanko et al (2007) BCSC 216

Johnstone v. H.M.T.Q. (2006) BCSC 1867

Jackson v. Lai (2007) BCSC1023

Foran v. Nguyen et al (2006) BCSC 605

Lee v. Metheral, Metheral and ICBC (2006) BCSC 1841

Lo v. Thompson (2007) BCSC 1330

[116]        Counsel for the plaintiff submits that the court would be justified in the present case in awarding non-pecuniary damages of $100,000 and a further $1,960 in special damages for the past and future cost of the plaintiff’s psychological care through Dr. Der. 

[117]        The plaintiff makes no claim for loss of earning capacity or any other future care costs. 

[118]        It is the defendant’s contention that the plaintiff has failed to prove substantial aspects of her claim, including her shoulder pain, her low back pain, her leg pain, myofacial pain syndrome, pain syndrome, PTSD, or depression/anxiety.  It is the defendant’s position that the plaintiff suffered a mild soft tissue injury to her neck and upper back, which has largely resolved after four months of physiotherapy and which may have flared up 3 ½ months later, for a further 3 to 4 months requiring some further physiotherapy.

[119]        The defendant points to the evidence that not only has the plaintiff missed no work, but she has continued to succeed in a challenging job, and she has, as well, resumed living a full and active life. 

[120]        The defendant submits that the first evidence of low back pain was not until October 31, 2004, three months following the accident and the first note of shoulder pain in the medical records is June 4, 2005, nearly a year following the accident.  In addition, the first indication of hip/thigh injury was in 2006, about two years following the accident.  The defendant says, relying on the report of Dr. Schweigel, that those injuries are simply too removed in time to be a product of the accident. 

[121]        As to Dr. Chu’s “suspected” diagnosis of myofacial pain syndrome, the defendant says that he found no signs or symptoms of that condition during his examination and his diagnosis is tenuous at best.  Similarly, when examined by Dr. Schweigel, the plaintiff evidenced no signs or symptoms of that syndrome or any ongoing pain or disability.

[122]        Of Dr. Der’s diagnosis, the defendant submits that even on the plaintiff’s evidence he overstated her symptoms, further, that he failed to administer any test to verify his diagnosis, that he reviewed no prior medical records, conducted no collateral interviews and did not confirm the reliability of the history provided by the plaintiff.  The defendant submits that the plaintiff’s problems do not meet the diagnostic criteria for either PTSD, pain syndrome, anxiety or depression, set forth in the DSM IV, particularly given the plaintiff’s own evidence contrary to Dr. Der’s report that she did not suffer from “moodiness, anger and irritability” except sometimes when in a car, that she did not think her perception of herself had changed, due to the pain, that she did not feel “helpless and hopeless and lost confidence in herself”, and that she did not have difficulty controlling her anxiety symptoms or was unable to carry on with her daily activities.

[123]        The defendant further submitted that the plaintiff simply did not meet the criteria of PTSD including “significant distress or impairment in social, occupational or other important areas of functioning”, or “persistent avoidance of the stimuli” or “persistent symptoms of increased arousal (e.g. anxiety)”.  The defendant also questioned whether the accident could be considered “a traumatic event causing 1. actual or threatened death or serious injury; and 2. intense fear, helplessness or horror.”

[124]        It was the defendant’s contention that the plaintiff suffered from some nervousness but not to the point of impairment or disability and that her physical complaints substantially resolved within a year or earlier, with no lasting effect on her health, ability to work or to enjoy her activities and recreational pursuits.  The defendant relied on a series of decisions including Penny Kid v. Escrivano 2004 BCSC 954; Dobie v. Berousseau, 2005 BCSC 1718; Shum v. Viverios [2006] BCJ No. 200; Kenny v. Leveson-Gowen [2005] BCJ No. 701 and Price v. Kostryba (1982) 70 B.C.L.R. 397 (S.C.) in which McEachern C.J.S.C. observed:

… the Court should be exceedingly careful when there is little or no objective evidence of continuing injury when complaints of pain persist for long periods extending beyond the normal or usual recovery.

[125]        The defendant submits on the strength of the authorities relied on, that general damages in this case fall within the range of $10,000 - $15,000 and that an award of $14,000 would be appropriate as non-pecuniary damages.

[126]        The defendant further submits that the plaintiff has not established that she requires further psychological counselling and hence no award for special damages should be made, or, at most, an award reflecting a relatively limited need should be made.


[127]        I am satisfied that the impact of the accident upon the plaintiff was neither as limited as the defendant contends nor as extensive as advanced in her claim. 

[128]        Overall, I found the plaintiff to be a reliable and credible witness who was meticulously careful in her answers and who genuinely struggled with her emotions when describing the details of the accident.  I accept that to her, the accident was sudden and shocking.  It was a sufficient force to deploy the air bags in the vehicle and there was evidence that the defendant was travelling at about 60 kph, shortly before braking and sliding into the vehicle in front of him, which had come to a stop or near stop. 

[129]        I accept the plaintiff’s and the defendant’s evidence that she was shaken, in shock, and crying after the accident until she was taken home to her mother’s house.  I accept that she had soft tissue injury to her upper back, neck and shoulder.  I note that although her shoulder injury was not referenced in Dr. Lloyd-Jones’ report until June 4, 2005, it appears from Kevin Tam’s report that she was referred to him for “post motor vehicle accident neck, shoulders and upper back problems” by Dr. K. Nolen of Care Point Medical Clinic on July 29, 2004.  Dr. Lloyd-Jones’ report simply does not reference Dr. Nolen’s examination or referral of the plaintiff.

[130]        It appears that Mr. Tam’s treatment of the plaintiff focussed initially on her neck and upper back, with moderate muscle spasm in her left side and “mild plus” spasm along her right side of the para-vertical muscles in her cervical and thoracic regions.  I accept that her injuries improved, but remained symptomatic until largely resolved in November 2004, flaring up again in March after she was compelled to put in long shifts at work, to meet operational needs.  I also accept that the plaintiff’s low back pain, although not surfacing until some three months post-accident, was caused by the accident either by the mechanism of compensatory injury identified by Mr. Tam or by way of myofacial pain syndrome identified by Dr. Chu.  There is no other apparent cause of the plaintiff’s low back pain and tightness, and the explanations advanced provide a probable cause of it.  I agree with the submissions of counsel for the defendant that the plaintiff’s leg and thigh pain is not probably causally connected to the accident, given that it did not surface until some two years later. 

[131]        I am not satisfied on the basis of Dr. Der’s evidence that the plaintiff meets the criteria for a diagnosis of either PTSD or pain syndrome.  I find that the overall evidence and the plaintiff’s own reservations about Dr. Der’s characterization of her state of mind not compatible with a diagnosis of either of those conditions.  I do accept however that the plaintiff has suffered from some degree of anxiety from the accident, which has compounded her physical injuries and has had the effect of inhibiting her in the full enjoyment of life and resumption of pre-accident activities.  She has clearly been able to function effectively in many areas of her life, but I find that what she describes as her lack of motivation in resuming her pre-accident level of activity is due to the combination of the physical and emotional effects which the accident had upon her.

[132]        I accept that the plaintiff’s prognosis is good and thus I do not see this as one of those cases, such as those relied on by the plaintiff, where there is a likelihood of long term future effects flowing from PTSD or pain syndrome, or otherwise.  I accept however, that this case is close to that category of case identified by Proudfoot J.A. in Unger v. Dhaliwal, supra, where she wrote:

After analyzing the many cases cited by both counsel … I find that the range of damages is indeed wide.  Cases involving primarily soft-tissue injury with some emotional problems including sleep disruption, nervousness, depression, seem to be from a low of $35,000 to a high of $125,000.

[133]        In Unger v. Dhaliwal in which the court reduced a jury award for non-pecuniary damages from $187,000 to $90,000, there was evidence that the plaintiff suffered from PTSD, albeit not prolonged, was off work for three months, was on psychoactive medication, and had trouble sleeping and “trouble coping”.  In Wagner v. Narang, supra, where the court awarded non-pecuniary damages of $70,000 based on a finding that the plaintiff suffered from PTSD for over two years, and that the accident “changed her life quite dramatically”.  The accident which Ms. Wagner was involved in was significantly more serious than in the present case involving her car being struck and rolling several times and being damaged beyond repair.  The plaintiff in that case suffered from chronic pain in addition to PTSD and her ability to both work and function in her family context was significantly impaired.  Those factors resulted in an award for past income loss as well as lost earning capacity. 

[134]        In Harvey v. Yanko, in which the Court awarded non-pecuniary damages of $90,000, there was a finding that the accident caused both PTSD (in remission as of the trial date) and fibromyalgia, a pain condition for which there is no cure. 

[135]        In the present case, I find the plaintiff to have suffered a mild to moderate soft tissue injury to her neck, upper back and shoulder, as an immediate consequence of the accident.  I find that the development of symptoms in her lower back 3 months post-accident were also causally connected either through compensatory back pain or through the myofacial pain syndrome identified by Dr. Chu.  I accept the plaintiff continues to suffer some intermittent pain and tightness in her back and neck and that she developed some anxiety as a result of the accident, which has not wholly dissipated.  I find that to some extent, along with the intermittent pain and tightness, the plaintiff’s anxiety continues to condition her life.  I accept that the plaintiff’s ability to function and enjoy life is not significantly impaired, but that it has been inhibited in the way which she described.  I accept that the prognosis for her is good and in all the circumstances I conclude that an award of $35,000 for non-pecuniary damages is merited.  In view of her lingering anxiety, which was illustrated by her struggle in holding her emotions in check in recounting details of the accident, I conclude that the psychological treatments by Dr. Der were warranted, and I award her the sum of $560 for those sessions already attended.  I award her a further $700 for future care costs to continue with additional psychological counselling from Dr. Der for 5 sessions.  I award costs to the plaintiff, unless there is some matter of which I am unaware, in which case counsel have liberty to apply.

“A.F. Cullen J.”

The Honourable Mr. Justice A.F. Cullen