Tung v. Allen,


2008 BCSC 666

Date: 20080529
Docket: 40572
Registry: Vernon


Jodi Lynn Tung



Norman Edward Allen


Before: The Honourable Mr. Justice Cole

Reasons for Judgment

Counsel for the Plaintiff

Gary P. Weatherill

Counsel for the Defendant

Kyle D. Watts

Date and Place of Trial/Hearing:

April 29, 30, May 1, 2008


Vernon, B.C.

[1]                The plaintiff, Jodi Lynn Tung, age 35, seeks damages for soft tissue injuries suffered in a motor vehicle accident on June 30, 2005.  Liability is admitted.  The plaintiff claims general damages, special damages, past wage loss, loss of future earning capacity, future care costs, and loss of housekeeping capacity.

[2]                On June 30, 2005, the plaintiff was driving her Honda Accord on Highway 97, in Kelowna, when she stopped in a line of traffic.  She was rear ended by a black truck, driven by the defendant.  She did not see or hear what happened.  She said that, after the impact, she was shocked and “out of it”.  She got out of her vehicle and exchanged information with the defendant.  When she went back to her vehicle, she realized that the ball cap and glasses that she had been wearing had ended up in the back seat of her car.  Her vehicle was not repairable. She received $8,100 from the insurance company and kept her car, which she sold for $3,000.

[3]                She did not think to call the police or an ambulance but, instead, went to a restaurant to phone BCAA.  There, she found that she had a difficult time looking up the telephone number.  An ambulance went by and a paramedic asked her if she was alright.  She says that she has no idea why she said “yes” or why she did not have the paramedic check her out, particularly as she was 24 weeks pregnant at the time.

[4]                The police arrived and the tow truck took her to Vernon, where her husband picked her up.

[5]                Prior to the accident, the plaintiff was a healthy individual with no musculoskeletal symptoms.  She has a degree in social work and works for the Ministry of Child and Family Services as a child protection worker.  Her job is a stressful one, assessing and apprehending children in need of protection.  She works 8:30 - 4:30, plus emergencies, and is on-call some weekends.  She says that she deals with the stress by engaging in rigorous physical activity.

[6]                Prior to the accident, she played for three different slow pitch teams and three different volleyball teams.  She also played hockey, ringette, and golf, worked out at the gym, and attended an outdoor exercise program, called boot camp, three times a week from 5:30 a.m. to 6:30 a.m. 

[7]                Shortly after the accident, she had soreness in her hip and sternum.  Later that evening, she had pain in her neck and right shoulder, her tailbone felt “like a knife went through it”, and she had stiffness in her lower back.

[8]                The following day she could hardly get out of bed because of her stiffness and pain.  She then went to a walk-in clinic because she was concerned about her unborn child. 

[9]                Throughout July she had a lot of pain and could not take medication because of the pregnancy.  She was off work for 2-3 weeks after which she started back gradually.  However, she never worked more than three days a week from the time she returned until October 7, when she took maternity leave.

[10]           Because her car was a write-off, she and her husband road-tested a new vehicle.  She said that she “freaked out” while sitting in the passenger seat; she said she felt unsafe and shaky, and that she became anxious if she looked in the rear view mirror.  This anxiety from being in a car has never gone away. 

[11]           She did not seek counselling at that time, nor did she discuss the extent of her anxiety with her husband because she thought that she could handle it without involving others.  She said that she loves driving and was embarrassed to talk about her anxiety, particularly as it did not fit in with her personality as an orderly and organized individual who controls and overcomes adversity in her own way.

[12]           Ms. Tung had a longstanding agreement, with her brother and sister, to drive to Winnipeg on August 12.  On that trip, she had to sit with an icepack under her tailbone whenever it was her turn to drive.  She had planned on returning home by herself but had to get her mother to accompany her and to do most of the driving back to Vernon. 

[13]           The plaintiff commenced physiotherapy, which she found to be helpful.  She also had massage therapy, but it has had no lasting benefit.  In October of 2006, after her maternity leave was completed, she returned to work on a full-time basis.  She was seconded to work in Golden, commencing in November, for a period of six months.  However, she left at the end of January of 2007 because of her anxiety about driving and because she had recurring dreams of abandoning her child. 

[14]           On October 7, 2005, she started back at the gym but that was not helpful.  She said she did not go any place without an icepack for her tailbone and that she used an airline pillow for her neck.

[15]           In the winter of 2005 she played some hockey.  In January she started playing some volleyball but found that it was hard on her neck.  She also went back to boot camp but at a greatly reduced level of intensity.

[16]           In September of 2005, she was referred to Dr. Duncan, who specializes in pain control.  He recommended acupuncture, which she tried.  However, she found that this form of treatment only achieved limited success.  She was also referred to Dr. Raghavan, who is a rheumatologist and also a specialist in physical medicine and rehabilitation.  Dr. Raghavan recommended that she continue her exercise program and consider trigger point, facet point, and sacroiliac joint injections in the future.  He also recommended continued use of anti-inflammatories, which she continues to take to this day.

[17]           In early 2007, shortly after returning to work in Vernon, the plaintiff was almost struck by a vehicle when she was in a cross-walk.  She was shaken up by this experience and took the Friday and following Monday off work.  She contacted I.C.B.C. to inquire about driving lessons.  At that time, I.C.B.C. suggested that she seek help with addressing her anxiety.

[18]           It was then that she discussed her anxiety, with respect to driving, with her general practitioner, Dr. Friesen.  She did not discuss this with him previously because she said that she is not the “whining type of person” and would not tell him unless she was specifically asked.  Again, she had felt that she could control and resolve this problem on her own.

[19]           Her general practitioner recommended that the plaintiff see Dr. Neilson, a psychologist, and she made an appointment for February of 2007.  The plaintiff has now been seeing Dr. Neilson for approximately a year.  Dr. Neilson diagnosed the plaintiff as having Post Traumatic Stress Disorder.  The plaintiff says she had difficulty absorbing this diagnosis because she believed that she was “a stronger person than that”.

[20]           When the plaintiff returns to work on June 2 of this year, she has decided to do so in a new position.  She says that she has made this decision because she is not physically capable of continuing in her present job, due to the fact that it requires a fair amount of driving, and that often the driving is on an emergency basis where she does not have time to plan out her best route.  Her new job, which is at the same rate of pay as her old one, will be acting as a resource social worker for foster parents and recruiting foster parents.  In addition to her lack of physical ability and anxiety, she has changed jobs because she is now less able to deal with the stress of being a protection worker by engaging in physical activities.  She says that if she cannot be 100% mentally fit and physically fit, she cannot do her job.  On cross-examination, she admitted that another reason for which she wanted to change her job was that her new job fit in with her emerging lifestyle as a part of a young growing family.

[21]           The plaintiff’s physical activities are still greatly reduced and she does not play sports at the frequency and at the competitive level she did in the past.  Her ability to do housework has also been affected.  She admits to being a neat freak but claims that she cannot do any housework above her head or any heavy housework.  Since November/December of 2005, she has had a house cleaner, once or twice every second week, at $20/hour. 

[22]           She is still taking anti-inflammatories and wishes to continue to see Dr. Neilson who charged $140/hour.

[23]           She still has soreness and continual pain in both her neck and tailbone, and has periodic flare ups. 

Summary of Medical Evidence

[24]           The defendant’s expert, Duncan Laidlow, who is a physical medicine and rehabilitation expert, said in his report dated February 4, 2008:

I suspect that she will be continuing to [be] prone to mechanical lower back pain, although the discomfort will lessen and be much less troublesome if she could fully restore her range of motion to normal. 

She may require the odd use of anti-inflammatories during times of flare-up.

[25]           Dr. Travlos, who is an expert in physical medicine and rehabilitation, states in his report of September 10, 2007:

It is my opinion that Ms. Tung’s current residual neck and shoulder symptoms are a result of the accident.  It is likely that these symptoms will slowly continue to improve and ultimately resolve.  The current symptoms are intermittent and as time goes on the distance between episodes will lengthen and eventually the flare-ups will just stop occurring.

Ms. Tung’s tailbone symptoms are clearly an ongoing issue.

[26]           Further on he states:

The nature of her current low back/pelvic symptoms is intermittent and this bodes well for further recovery.  Assuming that additional tests are negative, it is likely that Ms. Tung’s lower back symptoms will reduce.  It is probable, however, that she will remain symptomatic to some extent with certain types of activities and that she will always be cautious with what she does in order to avoid aggravating her pains.

[27]           The plaintiff’s general practitioner, Dr. Friesen, states in his report of January 12, 2008:

… I am unable to comment on the probable duration of her symptoms.  I am hopeful, however, that with ongoing treatment and continued increase in physical activity, Ms. Tung will be able to return to the type of lifestyle she once enjoyed.

[28]           On re-examination, Dr. Friesen explained that sentence by saying that he was optimistic that she is motivated and that, with treatment and physical activity, there is room for improvement in her condition.

[29]           Dr. Raghavan, an expert in physical medicine and rehabilitation wrote a report, which is dated February 4, 2007.  There, he said that his diagnosis was:  “chronic axial pain”, which he says was secondary to the injury sustained in the motor vehicle accident.  He also felt, in view of the widespread tenderness in her axial spine, that there was a significant component of myofacial pain disorder.  He recommended treatment including trigger point injections, diagnostic injections to establish whether her neck pain is coming from facet joint pathology and, if it is, a surgical procedure called facet rhizotomy (freezing of the joints), diagnostic injections for lower back symptoms, and pharmacological options to supplement these treatments.  He encouraged her to continue with physical exercise programs.


[30]           The defendant argues that this is a case of purely soft-tissue injuries and that there are no objective findings by any of the professionals involved with the plaintiff.  They quote the often cited decision of McEachern C.J.S.C. (as he then was) in Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.) where the Chief Justice stated at 398:

Perhaps no injury has been the subject of so much judicial consideration as the whiplash. Human experience tells us that these injuries normally resolve themselves within six months to a year or so. Yet every physician knows some patients whose complaint continues for years, and some apparently never recover. For this reason, it is necessary for a court to exercise caution and to examine all the evidence carefully so as to arrive at fair and reasonable compensation.

[31]           In my view, there is objective evidence provided by the defendant’s own expert, Dr. Laidlow.  He states, at page 6 of his report:

The lower back revealed some muscular tightness in the paraspinal and gluteal muscles.  There was tenderness noted in the paraspinal musculature on either side of the lower back, in addition to discomfort noted to direct palpitation of the trapezius and rhomboid areas in the upper back.

[32]           Practically all the experts called describe the plaintiff as being highly motivated. Her attempt to get back into playing sports and exercise is indicative of her motivation and inconsistent with her being a malingerer.

[33]           The defendant also submits that there are many inconsistencies with respect to the plaintiff’s evidence at trial and what she has reported to the various physicians.  They say she exaggerates her symptoms and that she does not take the amount of anti-inflammatory medication that she says she takes. Furthermore, the defendant submits that her working overtime between January 1 and May 31, 2007, is inconsistent with her symptoms.

[34]           I accept that there are numerous inconsistencies with respect to the plaintiff’s evidence, but I still find that she is a credible witness.  She is not a complainer; she is an extremely private person. She answers questions when put to her by her physicians; if she does not remember specific incidents she does not guess, and if the physician does not ask questions directly, she does not offer explanations.  There is no surprise that the frequency of her sporting activities is not reported exactly the same by all treating physicians, due in part, I am satisfied, to the numerous physical activities with which she was attempting to re-engage, the number of physicians she has seen, and the relatively lengthy period of time that she was reporting her symptoms.

[35]           I am satisfied that the plaintiff is a credible witness, that the medical evidence for the most part is consistent with her description of her injuries, and I find that she has suffered a soft-tissue injury that would be described as the upper end of a moderate soft-tissue injury that should resolve itself over time.

[36]           Before dealing with the issues of non-pecuniary damages, I wish to deal with the issue of Post Traumatic Stress Disorder because the defendant takes the position that due to the second incident, when the plaintiff was nearly struck by a truck in a cross-walk, that I must assess damages for Post Traumatic Stress Disorder on the basis of the principles set forth in Long v. Thiessen (1968), 65 W.W.R. 577 (B.C.C.A.), where Robertson J.A. stated at 591:

I think that the way in which justice can best be done here is:  (a) To assess as best one can what the plaintiff would have recovered against the Thiessens had his action against them been tried on April 22, 1966 (the day before the second accident), and to award damages accordingly; (b) To assess global damages as of the date of the trial in respect of both accidents; and (c) To deduct the amount under (a) from the amount under (b) and award damages against Laliberte in the amount of the difference.

That approach has been applied most recently in Kailey v. Kellner, 2007 BCSC 1449.

[37]           However, in Athey v. Leonati, [1996] 3 S.C.R. 458 and subsequently in E.D.G. v. Hammer, 2003 SCC 52, the Supreme Court of Canada held that tortfeasors liable for separate tortious incidents, which caused a single injury, are jointly and severally liable to the plaintiff for all of the damages, and apportionment is merely an application of the provincial Negligence Act.  This latter approach was approved by Mr. Justice Shaw in Ashcroft v. Dhaliwal, 2007 BCSC 533, where the learned trial judge examined the history of these two approaches.

[38]           I am satisfied in, this case, that the two incidents that the plaintiff was involved in are indivisible.  The anxiety caused to the plaintiff by the second incident is directly connected to the accident involving the defendant.  Since the individual that caused the second accident was not before the court, as was the case in Ashcroft, where there was a settlement of the claim, the defendant is liable for all of the plaintiff’s damages.

Post Traumatic Stress Disorder

[39]           Since the accident, the plaintiff has described her anxiety that results from sitting in a motor vehicle and not wanting to look into the rear-view mirror, her anxiety about driving, and her recurring nightmares, one of which being that she has left one of her children on the side of the road.  This anxiety was never revealed to her family doctor until the incident in early 2007.  It was only after that event that she discussed it and was referred to Dr. Neilson, a registered psychologist who first saw the plaintiff on April 20, 2007.  Dr. Neilson diagnosed the plaintiff as having Post Traumatic Stress Disorder.  The facts and assumptions made by Dr. Neilson include the following:

(a)        Ms. Tung experienced her accident as traumatic, with feelings of fear and helplessness;

(b)        Since the motor vehicle accident, Ms. Tung has experienced post-traumatic symptoms, including re-experiencing, avoiding and hyper-arousal;

(c)        Ms. Tung experiences some intrusive thoughts and images of the accident;

(d)        Ms. Tung tries to avoid reminders of the accident;

(e)        Ms. Tung finds it difficult to think about the accident;

[40]           I am satisfied, after reviewing the evidence, that the plaintiff has not proven all of those assumptions set out above.  In R. v. Abbey, [1982] 2 S.C.R. 24 at 46, the Court said the following regarding the assessment of expert evidence:

... Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist.

This was recently affirmed in R. v. Stinn, 2003 BCSC 966 at para. 45.

[41]           I am satisfied that no weight should be given to Dr. Neilson’s report, however, I do accept the evidence of the plaintiff that she suffered anxiety because of the motor vehicle accident of June 30, 2005.  I do accept the fact that Dr. Neilson confirmed that the plaintiff found that the near-collision that the plaintiff experienced in the crosswalk in early 2007 was quite traumatic and has likely led to an increase in the intensity of her symptoms.

Non-Pecuniary Damages

[42]           The plaintiff says that the conservative range for general damages is $50,000 - $75,000.  The defendant is of the view that general damages are between $20,000 and $30,000.  Both counsel provide ample authorities to justify their range of damages.  But, as noted by Mr. Justice McEachern C.J.S.C. (as he then was) in Price, at 398, “Previously decided cases are some help (but not much, because obviously every case is different).”  Taking into account the fact that Ms. Tung suffered a period of three weeks of almost total disability, followed by partial disability as reflected in her loss of income, and considering that she will continue to have some disability for an unknown period of time, I am satisfied that the appropriate award for non-pecuniary damages is $60,000. 

Special Damages

[43]           The plaintiff claims housekeeping expenses at $40 for two hours every second week.  She says that she is unable to handle the heavier aspects of her housekeeping duties.  She provides, however, only two receipts totalling $80 but makes a total claim of $2,560.  Dr. Travlos, the plaintiff’s expert in physical medicine and rehabilitation states:

Ms. Tung is capable of doing chores and activities around the house and she should remain capable of doing most of these, other than the heavier, more repetitive ones.

Under the section “History & Physical Examination” Dr. Travlos states:

At home, she generally does all the chores inside the home and her husband does the outside yard work.  She also has a cleaner come in to the house for two hours per week to do the heavier chores.  She noted that there is nothing that she cannot do, but avoids the heavier and repetitive work.

[44]           In cross-examination, the plaintiff admitted that, in terms of household chores, there was nothing she could not do. 

[45]           Dr. Laidlow, the defendant’s expert in physical medicine and rehabilitation, states:

I also believe that she is capable of doing the activities around her home, although it may take a longer period of time then it might otherwise have taken.

[46]           She told Dr. Laidlow that she gets help with her housekeeping and ceiling fans.

[47]           I am satisfied that the plaintiff is capable of doing all her housekeeping duties although it will take her a longer period of time to do them and that she may find it more difficult to do some of the heavier chores.  In my view, this is not a case of the plaintiff not being able to perform this function.  She has chosen to pay for housekeeping and I do not accept that this is a proper claim.  However, in my view, she has a valid claim for loss of capacity to do her housekeeping duties and I assess that at $5,000.

[48]           The plaintiff claims the sum of $345 for physiotherapy, which in my view, is a valid claim.  The plaintiff also claims $700 for her appointments with her psychologist, Dr. Patricia Neilson, from January 3 to April 4, 2008.  I am satisfied that that too is a valid claim.

[49]           The plaintiff claims the sum of $58 for daycare in order for her to attend an appointment for an Independent Medical Examination with Dr. Travlos, her own specialist.  In my view that is a proper claim for a disbursement, not a special expense.

[50]           The plaintiff also claims $400 for boot camp, I am of the view that that is something she participated in on a frequent basis prior to the accident and is not a proper claim.

[51]           Finally, the plaintiff claims the sum of $500 for mileage and over-the-counter medications.  However, she does not provide any details of what the mileage is for or receipts for the medications claimed.  Although I agree with the plaintiff that my function is to assess damages, not calculate them, there must be something more than a bare assertion that she is entitled to “something”. I do not find that this is a valid claim.

Past Wage Loss

[52]           The plaintiff claims the sum of $19,522.02 for past wage loss.  This includes a loss of $9,725.30 in wages with respect to her base salary from June 30, 2005 to October 7, 2005.  She also lost overtime and income from duty weekends.  There is also a claim for reduced hours between March 23, 2007 and June 1, 2007.

[53]           The defendant did not really contest these claims and I am satisfied, in any event, that the plaintiff has substantiated them.  Thus, I order that the defendant pay the plaintiff $19,522.02.  Counsel indicated that they could agree upon a calculation to account for taxes.  If there is no agreement they can speak to that matter.

Loss of Future Earning Capacity

[54]           The plaintiff is changing her job from a child protection worker to a resource social worker.  It is clear that she enjoyed the challenge of being a child protection worker, although it was highly stressful.  She says that she is making a lateral move, in part, because of her ongoing physical limitations, which compromise her ability to cope with the stress of the job, and her anxiety regarding driving.  However, she also acknowledges that this lateral move is better-suited to her family needs and her lifestyle, as her new position will require less weekend work and less driving.

[55]           Dr.  Travlos’ stated that:

Ms. Tung is capable of working full-time and has demonstrated the capacity to do so.  Assessing her in my office, she clearly is limited from being able to sit for lengthy periods of time and this will impact on her work.  She may also have to adapt her work station, so that she is not sitting all the time.  She may need to have a standing workstation or even voice activation software to help her to type up letters without having to sit for prolonged periods of time.  Both the neck and the tailbone symptoms will impact on the enjoyment of her work, but she should still be capable of gainful full-time employment.”

[56]           Dr. Laidlow was also of the view that she was capable of performing her job as a social worker and that she may have to change her working environment so as to make it more comfortable for her to perform her job.

[57]           The “capital asset” test for determining whether there has been a loss of future earning capacity was articulated in Earnshaw v. Despins, [1990] 45 B.C.L.R. (2d) 380 (C.A.).  There, Madam Justice Southin stated, at 399:

In my opinion, the true questions the jury must address in a claim such as this are:

1.         Has the plaintiff's earning capacity been impaired to any degree by his injuries?

2.         If so, what amount in the light of all the evidence should be awarded for that impairment?

[58]           In Pallos v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.), Mr. Justice Finch (as he then was) referred to several cases, including Earnshaw and Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.).  He stated, at 269:

It does not appear that the trial judge had his attention drawn to any of these cases, or to the approach they suggest.  These cases all treat a person's capacity to earn income as a capital asset, whose value may be lost or impaired by injury.  It is a different approach from that taken in Steenblok v. Funk [(1990), 46 B.C.L.R. (2d) 133 (C.A.)], and similar cases, where the court is asked to determine the likelihood of some future event leading to loss of income.  Those cases say, if there is a "real possibility" or a "substantial possibility" of such a future event, an award for future loss of earning may be made. There is nothing in the case law to suggest that the "capital asset" approach and the "real possibility" approach are in any way mutually exclusive.  They are simply different ways of attempting to assess the same head of damages, future loss of income.

[59]           In the case at bar, I am not satisfied that the plaintiff’s injuries are permanent. 

[60]           The plaintiff describes herself as a “lifer” with the Ministry of Child and Family Services.  She intends on working with the Ministry until she retires.  The Ministry pays well and has good benefits.  The plaintiff argues, however, that there are many things that could happen that could result in her having to look elsewhere for work, such as government cutbacks or if she needs to move to a city or town that does not have an opening in social work.

[61]           I am of the view that it is highly unlikely that the plaintiff will be laid off due to cutbacks as she enjoys the job-security that comes with seniority in the Ministry.  As to her being required to move for some unknown reason to a town that does not have social worker openings, I find that this to be far too speculative. 

[62]           What concerns me most, with respect to this aspect of the action, is that the plaintiff has demonstrated that she is capable of working for prolonged periods of time, and accumulating substantial amounts of overtime as she did between January 1, 2007 to May 31, 2007, before taking her maternity leave.  During that period of time she earned the sum of $49,905 while her usual hourly rate of $31 per hour would translate to the sum of $23,870 over a 22-week period.  Thus, during those 22 weeks, the plaintiff earned $26,035 in overtime pay.  The defendant calculates that, based on her regular hourly rate multiplied by time and a half, this translates into an additional 560 hours over the 22-week period, or some 3.6 days per week.

[63]           The defendant’s calculations are suspect.  The defendant receives various rates of pay depending on the days worked, and the frequency of the callouts on weekends.  There is a standard calculation for being on call at $31 for every 3-hour period and then an accelerated rate for when an individual is actually called out.

[64]           The amount of overtime worked, however, even considering an average pay of $62 per hour would translate into 280 hours of overtime over the 22-week period, or 1.8 days per week.

[65]           This satisfied me that, in addition to her having a secure job, her ongoing symptoms do not affect her ability to work as a child protection worker or as a resource social worker, and because her symptoms are not permanent but will resolve over time, the plaintiff has not satisfied me that she is entitled to a claim of loss of earning capacity.

Cost of Future Care

[66]           I have already dealt with the issue of housekeeping expenses.  There is an issue of the cost of future medical care, mainly the cost of muscle relaxants and the cost of future therapy with Dr. Nielsen.  In my view, with respect to the cost of future medical care, the sum of $400 is adequate along with $1,000 for the cost of future therapy. 

Summary of Findings

[67]           I have found that the defendant is liable to the plaintiff for the following amounts in damages:



General Damages




Special Damages




Past Wage Loss




Future Medical Care




Future Therapy







[68]           There will be court ordered interest with respect to past wage loss and special expenses.

[69]           The plaintiff is entitled to her costs.

The Honourable Mr. Justice F. W. Cole