IN THE SUPREME COURT OF BRITISH COLUMBIA
Qiao v. Buckley,
2008 BCSC 1782
Sean Buckley and Judith Lynn Buckley
Before: The Honourable Madam Justice Sinclair Prowse
Reasons for Judgment
Counsel for the Plaintiff:
Matthew D.C. Fahey
Counsel for the Defendants:
Garry J.H. Boswell
Date and Place of Trial:
April 17, 18, 21 and 25, 2008;
(I) NATURE OF THE PROCEEDINGS AND ISSUE RAISED
 On August 12, 2004, while driving a motor vehicle owned by the Defendant Judith Lynn Buckley, the Defendant Sean Buckley rear-ended a vehicle driven by the Plaintiff Man Qiao. The Defendants admit that this collision occurred as a result of their negligence.
 This trial pertains to damages only. The issues fall into two categories:
(a) the nature and extent of the Plaintiff's injuries as caused by the collision; and
(b) entitlement and quantum of damages.
 The Plaintiff presently suffers from chronic pain, a disc herniation in her neck, a soft tissue injury to her neck, anxiety (including panic attacks), and depression. The most debilitating of these symptoms is the chronic pain.
 She submits that although she suffered from an anxiety disorder and periodic depression prior to this collision, her condition worsened after the collision. With respect to her physical injuries, the Plaintiff says that all of them were caused by the collision. Specifically, she says that even if the disc herniation was pre-existing, it was asymptomatic and only became symptomatic as a result of the collision.
 The Defendants, on the other hand, contend that, at the most, the Plaintiff suffered a mild soft tissue injury which resolved or should have resolved shortly after the accident. They further submit that the Plaintiff's present complaints are psychological or psychosomatic in nature and were not caused by their negligence.
 The Plaintiff has confined her claims to special and general damages.
(II) BACKGROUND CIRCUMSTANCES
 The Plaintiff is now 49 years old. She was 45 years old when this collision occurred.
 For 6 years prior to the collision, the Plaintiff had suffered from an anxiety disorder, including panic attacks, and periodic depression. Her symptoms were sufficiently severe that she had to withdraw from the workforce. Prior to the onset of her anxiety disorder, the Plaintiff had trained as a pharmacist and had worked in that profession as well as in other business. However, her symptoms were not so severe that she could not function – that is, she was able to interact with people and maintain friendships.
 However, in the 8-month period prior to the collision, the Plaintiff's condition had improved markedly as the result of her new medication, Effexor. Although the precise dosage was still being fined-tuned, her symptoms had abated to the extent that she was actively making plans to return to the workplace and to start her own business.
 Before the collision, the Plaintiff did not have any physical problems apart from some periodic pain in her neck. An x-ray taken not long before the collision showed some arthritis, but other than that, her physical health was unremarkable.
 The collision itself occurred in the early afternoon. The Plaintiff had either stopped or was just beginning to accelerate when the collision occurred. She had no notice of the impending collision.
 Though the Defendant driver did not know the exact speed at which he was travelling, he attested that given the congested road conditions, he thought that it was probably in the range of 10 to 12 kph. Whatever his speed, the impact was not sufficient to dislodge the papers that were laying on the passenger seat onto the floor.
 However, the impact was severe enough to cause $700 in damage to the Plaintiff's Honda sedan and to twist the front bumper of the Defendants' full-size GMC van.
 Immediately upon impact, the Plaintiff experienced a pain running up her neck and a shooting explosive pain in her head. After exchanging information with the Defendant driver, she went to see her doctor.
 Initially, her symptoms included headaches, neck pain, back pain, dizziness, left shoulder pain, left knee pain and swelling, nausea, and insomnia.
 Over the next few months, her knee and shoulder symptoms resolved. However, her neck and back pain persisted. In addition, the symptoms of her anxiety disorder worsened. She developed additional phobias, including a fear of crowds, a fear of social interaction, and, for a period, a fear of driving.
 Her family doctor observed that her symptoms interacted with one another. That is, whenever her anxiety disorder symptoms increased (for example, when she was under stress, upset, or anxious), the pain in her back and neck would increase and last for days.
 In January 2005, the Plaintiff's family doctor referred her to a psychiatrist for treatment for her anxiety disorder. These treatments were subsequently terminated by the Plaintiff.
 Some months after that termination, the Plaintiff asked for another psychiatric referral. However, that referral was not made until August 2006 as the Plaintiff was out of the country for a period of time.
 Included in the treatment provided by this second psychiatrist was a recommendation that the Plaintiff participate in the hospital's psychotherapy groups. The Plaintiff failed to follow up with this treatment, explaining that she was uncomfortable and embarrassed with the process.
 Because of the persistence of her neck and back pain symptoms, the Plaintiff underwent a CT scan of her cervical spine on November 26, 2006. That scan revealed a moderate disc herniation at the C5-6 level which was more prominent on the right side. This disc herniation had not been present in the x-ray taken of the Plaintiff's neck a few months prior to the collision, which had revealed the presence of arthritis.
 Over the past 4 years, the Plaintiff has undergone numerous acupuncture treatments that have provided her with some temporary relief. Although there has been some improvement with respect to her symptoms overall, the Plaintiff continues to suffer chronic pain in her neck and back which intensifies if she is upset, anxious or under stress.
 As was set out earlier in these Reasons, the Plaintiff had not been able to work for some years. However, prior to the collision, her anxiety disorder symptoms had resolved to that point that the Plaintiff considered re-entry to the workforce a realistic option.
 Since the collision, however, her new physical injuries combined with the worsening of her psychological symptoms have rendered her return to the workforce unlikely. As a consequence of her chronic pain, she has lost the ability to concentrate.
 Her ongoing symptoms have also adversely affected her quality and enjoyment of life in other ways. For example, her chronic pain and increased anxiety disorder symptoms have caused her to become short-tempered and angry which, in turn, have made it difficult, if not impossible, to make and maintain friendships. She now lives an isolated life, having lost many of her old friends.
(III) THE PLAINTIFF'S INJURIES CAUSED BY THE DEFENDANTS' NEGLIGENCE
 I am satisfied that as the result of the Defendants' negligence, the Plaintiff suffered an injury to her shoulder and knee, a soft tissue injury to her neck and back which included a disc herniation; and an aggravation of her anxiety disorder and depression symptoms.
 Specifically, with respect to her psychological injuries, I am satisfied that as a result of the collision her anxiety disorder and depression symptoms worsened, and that the worsening included the development of additional phobias such as a fear of crowds, social interaction, and driving. There has been some improvement with respect to these symptoms. For example, the Plaintiff is now able to drive her vehicle and her fear of social interactions has lessened some.
 There has also been some improvement in her physical injuries. In particular, her knee and shoulder injuries resolved within a short period.
 As far as her chronic pain injury is concerned, I am satisfied that it arises primarily from the soft tissue injuries to her neck and back and from her disc herniation. However, the severity of the pain from these injuries is aggravated or intensified by her anxiety disorders. As her anxiety or stress levels increase, her chronic pain also increases in severity.
 In reaching these conclusions, I relied on the testimony of the Plaintiff and the evidence of Dr. Leong, her family doctor. The Defendants submit that I should not rely upon the Plaintiff’s evidence, contending that it was evasive, non-responsive and inconsistent with the clinical records. Moreover, they submit that I should rely upon the evidence of Dr. Schweigel, the orthopaedic surgeon who did an independent medical examination of the Plaintiff and whose report the Defendants tendered in this trial. The Defendants contend that his evidence is more reliable than that of Dr. Leong.
 The evidence did not support the Defendants' contentions.
 The clinical records did, in fact, support the Plaintiff's testimony that she reported her knew injury to her doctor from the outset. The records show that she reported this injury on the day of the collision.
 Furthermore, the Defendants contend that the Plaintiff was evasive and unresponsive because she admitted during her testimony that she did not always tell her psychotherapy counsellor the truth. The Plaintiff's explanation for this behaviour was that she was ashamed of her condition and did not want that counsellor to think that she was useless. In my view, that admission was neither evasive nor unresponsive. Rather, it was candid.
 In any event, on all material issues, the Plaintiff's evidence was consistent with and supported by other evidence. In particular, the evidence of her injuries was supported by the evidence of her family doctor, Dr. Leong – a witness whom I found to be credible and on whose evidence I relied.
 As the Plaintiff's treating physician, Dr. Leong had seen the Plaintiff over a long period of time. Dr. Schweigel, on the other hand, only saw the Plaintiff on one occasion for about an hour to an hour and a half.
 Throughout her testimony, Dr. Leong presented as a measured person who was endeavouring to be clear, accurate and fair. Her answers were thoughtful and balanced. Her testimony was both internally consistent and consistent with the other evidence.
 For example, it was Dr. Leong's opinion that the collision caused the Plaintiff's disc herniation in one of two ways: (1) either the collision caused the herniation completely; or (2) if the herniation pre-dated the collision, then the collision caused the herniation to become symptomatic. This evidence was based on the fact that the Plaintiff did not display any symptoms of cervical disc herniation prior to the collision. Although she had experienced some pain in her neck which had occasioned the earlier x-ray, that pain was occasional rather than chronic. It was also different in kind from the type of pain that can arise from disc herniation and that the Plaintiff experienced after the collision. Furthermore, the x-ray taken shortly before the collision did not show a disc herniation.
 Dr. Schweigel, on the other hand, was evasive and argumentative in his evidence. He gave opinions in this trial that were inconsistent with opinions that he had tendered in other trials, demonstrating that he was not impartial but, rather, tailored his evidence to favour the party that had called him. For example, in this trial he opined that arthritis could not be triggered by trauma whereas in another action he gave the opposite opinion.
 Dr. Schweigel opined that the Plaintiff had suffered a mild soft tissue injury to her neck and back as a result of this collision and that that injury had probably resolved itself within 3 to 4 months. He opined that the disc herniation pre-dated the collision as such conditions can arise from a longstanding arthritic condition and that, in any event, the Plaintiff’s chronic pain arose from neither the herniation specifically nor the collision generally but, rather, from her psychological or psychosomatic problems.
 However, during cross-examination, he did concede that trauma could trigger further degeneration. He further went on to testify that if this injury did not pre-date the collision, that it would probably have arisen within 2 to 3 years to a maximum of 5 years. In my view, this opinion contradicts his initial opinion that a disc herniation cannot be caused by trauma or become symptomatic because of trauma.
 For all of these reasons, I found Dr. Schweigel's evidence to be unreliable. I preferred the opinion of Dr. Leong. Where her opinion differed from the opinion of Dr. Schweigel, I relied upon her opinion.
 In their arguments as to the Plaintiff's injuries, the Defendants submitted that given the severity of this collision, it is unlikely that the Plaintiff would have suffered any injuries other than a mild soft tissue injury.
 As was set out in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.), the fact that the damage to the vehicles is minor does not necessarily mean that the injuries arising from such a collision will also be minor. At paras. 4 and 5 Thackeray J. held:
4. I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. That is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.
5. Significant injuries can be caused by the most casual of slips and falls. Conversely, accidents causing extensive property damage may leave those involved unscathed. The presence and extent of injuries are to be determined on the basis of evidence given in court. Objectivity is thus preserved and the public does not have to concern itself with extraneous philosophies that some would impose on the judicial process.
 Given these principles, the fact that the impact of this collision was modest does not preclude the Plaintiff from being injured as a result of it. As was set out earlier, the evidence proves that she felt the injury immediately. Her conduct and her symptoms have been consistent with her injuries having arisen as a result of this impact. It may be that the Plaintiff was more vulnerable to injury because of her pre-existing state involving her arthritic neck and her anxiety disorders, but that is irrelevant as every defendant must accept his victim as he finds them.
 Furthermore, the Defendants submit that, with respect to her psychological injuries, I should draw an adverse inference because the Plaintiff failed to call any of the psychologists or psychiatrists who had treated her.
 The Court may draw an adverse inference from the failure to call a doctor who has been consulted: Staples v. Monacelli (1997), 3 B.C.L.R. (3d) 126 (S.C.); Ritchie v. Thompson (1994), 155 N.B.R. (2d) 35, 35 C.P.C. (3d) 333 (C.A.); McTavish v. MacGillivray et al. (1997), 38 B.C.L.R. (3d) 306, 28 M.V.R. (3d) 235 (S.C.); and Barker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.). However, it may choose not to draw such an inference if the plaintiff has proved her case without the doctor and the defendants knew of these witnesses and had not seen fit to call them themselves: Ritchie at paras. 7-15.
 In my view, this is the situation that exists in this case. The Plaintiff proved her case without calling these witnesses. There was no indication in the evidence of an improper reason for not calling these witnesses: West v. Cotton,  B.C.J. No. 394 (S.C.).
 As far as the prognosis for the Plaintiff's injuries is concerned, it was canvassed by Dr. Leong in her report dated January 31, 2008:
[it is] important that [the Plaintiff] continue to receive psychiatric care for anxiety and panic disorder. [I] encourage her to participate in group psychotherapy sessions as recommended by Dr. Sienicki [the second psychiatrist] to assist her in overcoming the fear of interacting with other people. She will also continue with physiotherapy whenever she experienced residual pain from past injuries. I am not able at this time to provide a time estimate for [the Plaintiff’s] normal recovery. I can only do so after an improvement of her mental condition.
 I accept this opinion. It is consistent with and supported by the evidence.
 With respect to damages, as was set out by the Supreme Court of Canada in Athey v. Leonati,  3 S.CR. 458, 140 D.L.R. (4th) 235, a defendant is liable for any injuries arising from his or her negligence as well as for any injuries to which his or her negligence materially contributed. The general rule underlying damages is that a plaintiff is entitled to be returned to the position he or she would have been in, with all of its attendant risks and shortcomings, had the negligence of the defendant not occurred. A plaintiff is not entitled to be put in a better position.
 Applying these principles to a situation in which the plaintiff's alleged injuries are aggravations and/or accelerations of pre-existing symptomatic or asymptomatic injuries, the defendant is liable for any additional damage to that injury resulting from his or her negligence. The defendant need not compensate the plaintiff for any debilitating effects of a pre-existing condition which that plaintiff would have experienced anyway. Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award: Athey.
 Furthermore, there is no dispute that psychological injuries are compensable: Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318,  8 W.W.R. 239 (C.A.).
 As was set out in the preceding section, the Plaintiff did suffer a psychological injury in this case – namely, the worsening of the symptoms of her pre-existing anxiety disorder and periodic depression.
 The additional damage that she suffered to that pre-existing injury consisted of the development of additional phobias as well as an increase in the severity of her former symptoms.
 As far as the Plaintiff's disc herniation injury is concerned, the Defendants contend that this injury would probably have occurred in the future regardless of the Defendants' negligence. Although that may be the case, the evidence fell short of proving that the Plaintiff would develop pain symptoms because of that condition. To the contrary, the evidence showed that the Plaintiff may have developed this condition prior to the collision, but that she was asymptomatic. In the present case, it is the combination of the soft tissue injuries and the disc herniation that is causing her pain.
 The Defendants also submit that the Plaintiff failed to mitigate her loss and that, as a consequence, her damages should be reduced. In particular, they argue that she had failed to follow all of the recommendations of her doctors regarding the treatment of her psychological disorders. Specifically, although she had followed her doctor's recommendations regarding the medications that she was to take, she failed to follow their recommendation of continued psychological counselling.
 There is no dispute that every plaintiff has a duty to mitigate his or her loss. Every plaintiff has a duty to act in such a manner that his or her loss is not greater than it should reasonably be.
 However, to succeed with this application, the Defendants must prove not only that the Plaintiff failed to follow the recommended medical treatment, but also that it would probably have been effective had she followed it.
 For reasons which follow, I am satisfied that the Defendants have met this onus and that their application should be granted.
 As was established in the evidence, the second psychiatrist recommended that the Plaintiff attend and participate in group psychotherapy sessions. She has not followed this recommendation, though she did attest during the trial that she intended to take this treatment in the future.
 With respect to whether this treatment would have been effective, the evidence shows that it probably would have been. It is the treatment recommended by both her family doctor and her 2nd psychiatrist. Given that the intensity of her chronic pain increases with the severity of her anxiety disorder symptoms (and in particular, her stress level), it follows that if she was able to develop techniques to reduce or control her stress levels that her chronic pain symptoms would also improve.
 As she set out in her testimony, the Plaintiff did not follow these instructions for two reasons. Firstly, she was embarrassed to disclose in a public manner that she was experiencing these psychological problems as she felt that it indicated that she was useless. She explained that this embarrassment might, in part, be cultural, given her Chinese heritage. Secondly, she testified that she was not able to participate because of the $200 cost involved. In other words, she could not afford it.
 There are circumstances in which the Court has excused a plaintiff's failure to mitigate. Because a failure to mitigate results in a plaintiff's losses being greater than they would have been had the plaintiff acted reasonably, circumstances that will excuse a plaintiff from complying with this duty have been limited to situations in which a plaintiff, for reasons beyond their control, has been unable to comply with that duty.
 The circumstances in this case do not fall within that category.
 The Plaintiff's embarrassment is not a circumstance beyond her control. It makes it more difficult for her to follow the treatment, but not impossible.
 As far as the cost of the treatment is concerned, the evidence was not sufficient to prove that the Plaintiff was precluded from receiving this treatment because of it. The evidence fell short of showing that the Plaintiff had taken any steps to address this problem. For example, she never mentioned this difficulty to any of her treating doctors nor did she raise it with the Defendants.
 Given these findings, I am satisfied that the Defendants have proven that the Plaintiff failed to mitigate her loss.
 As the recommendation for this treatment was made more than 2 years ago and as it is anticipated that this treatment will help to improve the symptoms of both her psychological and physical injuries, I have concluded that the quantum of the damages that would otherwise have been ordered should be reduced by 30% because of her failure to mitigate.
(A) Special Damages
 The Plaintiff is seeking to recover $36,921.95 being $28,571.65 for acupuncture treatments here and in China, $79.00 for a vision test, $1,776.00 for medication, $1,693.00 for further acupuncture treatments in China and medicine purchased there; $3,234.30 for mileage of 10,781 km at $.30 a km, and $1,568.00 for drivers employed while she was afraid of driving.
 There is no dispute that a plaintiff is entitled to recover all reasonable expenses incurred as a result of his or her injuries. The reasonableness of a particular expense is to be measured in the context of the surrounding circumstances at the time that the expense was incurred: K.D. Coopers-Stephenson, Personal Injury Damages In Canada, 2nd ed. (Scarborough: Carswell, 1996).
 The Defendants contend that most of these expenses are not reasonable and were not incurred as a result of injuries arising from this collision. Therefore, apart from the acupuncture treatments during the first 3 to 4 months and some of the pain and muscle relaxant medication, the Defendants submit that the remaining expenses are not recoverable.
 The evidence did support some of the Defendants’ contentions. Specifically, the Plaintiff failed to prove that the $79.00 cost of a vision test arose as a result of injuries suffered in this collision. The Plaintiff did not suffer an eye injury.
 Moreover, the evidence fell short of proving the $1,568.00 expense for drivers and the $1,693.00 expense for further treatments and medicine incurred in China. There were no documents presented to support these expenses.
 However, the evidence did support the Plaintiff's claim for the initial acupuncture treatments, the mileage costs and much of her medication expenses.
 As far as the acupuncture treatments were concerned, the Plaintiff underwent these treatments as the result of the injury to her back and neck. She was not undergoing this type of treatment prior to the collision.
 In her testimony, the Plaintiff's treating physician acknowledged that these treatments would not cure the Plaintiff's injuries. However, she did opine that, in her view, they were still reasonable because they provided the Plaintiff with some relief for a period of time.
 Given these circumstances, I am satisfied that the acupuncture expenses are recoverable as special damages. As the mileage expense was incurred to transport the Plaintiff to acupuncture treatments and medical appointments, I am satisfied that it also constitutes a recoverable special damage expense.
 After the 30% reduction for her failure to mitigate, the Plaintiff is awarded $22,264.17 (the full amount of these expenses being $28,571.65 for acupuncture treatments and $3,234.30 for mileage).
 Although the Defendants submit that the overall costs of the acupuncture treatments were too high and that the Plaintiff could have received equivalent treatments at a lower cost, the Defendants did not tender evidence to support this submission. Though the evidence did disclose that the Plaintiff did attend different acupuncture facilities and the cost of these treatments did vary, the evidence also proved that those variations arose as a result of the length of the treatments and the quality of the treatments. The evidence did not prove that any of the treatments were unreasonable in terms of cost.
 With respect to the Plaintiff’s claim of $1,776.00 for medication, it is composed of medication to address the symptoms of her physical injuries (for example, muscle relaxants) and medication to address the symptoms of her psychological injuries.
 As all of her physical injury symptoms arose as a result of the injuries that she suffered in this collision and as the evidence has proved that it was reasonable to take these medications to alleviate her symptoms, these expenses constitute special damage expenses.
 As was touched upon previously, the evidence did not prove that the Plaintiff would have required pain medication and/or muscle relaxants for the disc herniation in her cervical spine, had the collision not occurred.
 With respect to the medication taken to address her psychological injury symptoms, the Plaintiff had taken some of these medications before the collision occurred. However, with respect to some of these medications, her dosage was increased after the collision. As was the case with the acupuncture and mileage expenses, the medication expense is greater than it would otherwise have been because of the Plaintiff's failure to mitigate. Given that she would have had to take some of the medications (albeit in a lesser dosage) in any event because of her pre-existing injuries and that she failed to mitigate her losses, I have concluded that this expense should be reduced by 50% - namely to $888.00.
 To conclude, the Plaintiff is awarded $23,152.17, being $22,263.96 for her acupuncture and mileage expenses and $888.00 for her medication expense.
(B) General Damages
 The Plaintiff submits that an award in the range of $75,000 to $100,000 is appropriate in this case whereas the Defendants submit that an award in the range of $20,000 to $25,000 is appropriate.
 The Defendants' submission is based on the proposition that most soft tissue injuries resolve within 2-3 years to a maximum of 5 years and that many of the Plaintiff's symptoms were not caused by the Defendants' negligence.
 As was set out earlier in these Reasons, I am satisfied that although the Plaintiff did have a pre-existing psychological injury, that injury was aggravated by this collision. Furthermore, I am satisfied that her physical injuries all arose as a result of the Defendants' negligence. Even if the Plaintiff's disc herniation pre-dated the collision, it was asymptomatic. The evidence fell short of proving that she would probably have developed pain symptoms from this disc herniation in the future.
 The Plaintiff's quality and enjoyment of life has been adversely affected by her injuries from this collision. She is in varying degrees of chronic pain. Although she suffered from anxiety disorders and periodic depression prior to the collision, she was able to function somewhat normally. She could interact with friends. Her symptoms were also improving to the extent that she was making plans to return to the workforce.
 Since the collision, her capacity to function has been significantly reduced. Included in the aggravation of her anxiety disorder is a fear of social interaction and of crowds. Though these fears have improved somewhat, they have not completely resolved and she has become isolated. For a period, she experienced a fear of driving.
 Her personality has also changed in that she has become short-tempered and angry. Because of this, she has lost most, if not all, of her friends. She has also lost her ability to concentrate.
 She can no longer participate in recreational activities such as walking because she is in too much pain.
 As far as the appropriate quantum of damages is concerned, I am satisfied that the circumstances of this case are similar to the circumstances in Badyal v. Sidhu, 2006 BCSC 1877,  B.C.J. No. 3257, a case in which the Court awarded the plaintiff $75,000. In Badyal, the plaintiff suffered a psychological injury attributable to the accident, that is, depression. The depression, in turn, resulted in the plaintiff experiencing chronic pain which would not resolve until her depression resolved. The resolution would not occur for some time. Although damage to vehicle was minor, there was no evidence on which to conclude that the Plaintiff's injuries were out of proportion to the severity of the accident.
 In the present case, the evidence does not go so far as to prove that her chronic pain will likely resolve when her anxiety disorder symptoms resolve. Rather, the evidence goes no further than to indicate that her symptoms will probably improve.
 Given the similarity between the present case and the Badyal case and the reduction for the failure to mitigate, I have concluded that the Plaintiff's general damages should be assessed at $50,000.
 The parties are granted leave to speak to costs at any mutually convenient time should they not be able to reach an agreement.
“SINCLAIR PROWSE, J.”