|Lee v. Dueck, MVA; Highway 1 near the border of New Westminster and Coquitlam, B.C., and was near the Brunette exit|
IN THE SUPREME COURT OF BRITISH COLUMBIA
Mi Ra Lee
Before: The Honourable Madam Justice Gray
Oral Reasons for Judgment
 THE COURT: Ms. Lee is a homemaker who lives with her husband and two children. The children are eight and six years of age.
 On November 30, 2009, Ms. Lee was driving her sister?in?law's van on Highway 1 near the border of New Westminster and Coquitlam, B.C., and was near the Brunette exit. She was stopped and awaiting an opportunity to merge into traffic. The defendant, Mr. Dueck, was driving a Volvo immediately behind the van, and the Volvo struck the van from the rear. Mr. Dueck admitted liability for the accident.
 Ms. Lee's claim for damages proceeded to a trial under the fast track rule and the trial lasted about a day and a half. Ms. Lee testified with the assistance of a Korean?English interpreter. She claims a short period of problems with her left ankle and a continuing but intermittent problem with her right wrist. She seeks non?pecuniary damages of $40,000, special damages of about $800, and $500 for cost of future care. She does not claim past or future wage loss.
 The position of the defence is that the injuries were so minor that they did not have any impact of any significance, and that Ms. Lee failed to mitigate any damages. The position of the defence is that the award should be modest to reflect the minor nature of the injuries.
 I am grateful to counsel for their focused presentation of the case and for providing me with relevant case authorities. That enabled me to give oral reasons a few hours after the completion of the trial. Following the usual practice of this court, if these oral reasons for judgment are ordered to be transcribed, I will do any necessary editing, but the result will not change.
 I will briefly set out the facts. Ms. Lee graduated from university in South Korea after four years of study in the field of archaeology. For a period of time, she worked in marketing for a health food company. Ms. Lee and her husband immigrated to Canada in 2006, about six years ago. After that, Ms. Lee did not work outside the home until after the accident.
 Ms. Lee's primary recreational interests were cooking for her family and taking photographs in her spare time. She also volunteered at her church, including doing volunteer food preparation. She did not have any problems with her right arm or left ankle before the accident. She was studying English.
 The accident occurred on Friday, November 30, 2009, at around 4:00 p.m. At the time of the accident, there were two adults and five children in the van. The children were in the back seats, and among the children were Ms. Lee's two children, who were then about six and four years old. Ms. Lee's sister?in?law was in the front passenger seat. Ms. Lee was holding the steering wheel. Her body was turned slightly to the left, because she was looking to her left for an opportunity to merge into traffic.
 Mr. Dueck stopped his Volvo a few feet behind the van. When he thought Ms. Lee was about to merge, Mr. Dueck drove forward, but the van was still stationary. The front of Mr. Dueck's Volvo struck the back of the van. Ms. Lee felt the impact and felt her body move and her back press against the back of her seat.
 Mr. Dueck estimated his speed at the time of impact to be about five kilometres an hour. He felt the impact to be like a bump or nudge. His wife's purse was on the Volvo's back seat and did not fall to the floor.
 This was the first accident Ms. Lee had experienced. She was about 37 years old. She was very concerned about the welfare of the children in the van. Her primary memory of how she felt the day of the accident is that she was shocked and her heart was racing. She did not notice any pain.
 Ms. Lee and Mr. Dueck moved their vehicles to a safe spot. Mr. Dueck learned that Ms. Lee's sister?in?law owned the van and he exchanged information with her. Nobody called the police or an ambulance. No one went to hospital after the collision. The only evidence about the damage to the vehicles was to the effect that it was minor. Mr. Dueck has not had the damage to his Volvo repaired.
 The next day, December 1, 2009, Ms. Lee awoke with pain in her right arm and left ankle. The pain was at her right elbow and wrist, and she felt no power in her hand and fingers and had trouble gripping. She went to a walk?in clinic. The doctor suggested that she rest, and that if she continued to have pain, that she return.
 On December 2, 2009, Ms. Lee continued to feel pain in her right arm and left ankle, and she returned to the walk?in clinic. The doctor she had seen the day before was not available, so she saw a second doctor. That second doctor referred Ms. Lee for physiotherapy, prescribed braces for her wrist and ankle, and prescribed medication. Ms. Lee was not sent then or at any time for x?rays or other imaging studies of her wrist or ankle.
 For about 10 days after the accident, Ms. Lee tried to simplify her cooking and to clean the home less completely to avoid straining her wrist. Ms. Lee used the prescribed braces. She wore the ankle brace for about a week and noted significant improvement. By about 10 days after the accident, her left ankle was completely healed. Ms. Lee wore the wrist brace for part of the day on most days for about a month. She found the wrist brace uncomfortable when she was doing housework, so she would take it off and try to use her other hand.
 Ms. Lee took the prescribed medication for a few days. She discontinued it, both because she did not think it made her feel better and because it made her sleepy.
 Ms. Lee went to two physiotherapy appointments in the first week of December. She did not think the physiotherapy helped, although after seeing the records she agreed that she found the pain had reduced after the first treatment. Since roughly a month after the accident, Ms. Lee has continued to prepare food at her church, but she now obtains help from others to avoid triggering her right arm symptoms, such as by getting help with heavy lifting.
 Ms. Lee had four acupuncture treatments in February 2010 at a clinic in Langley. This was not prescribed or recommended by a doctor. Ms. Lee thought the acupuncture improved her wrist significantly. The acupuncturist suggested that she exercise her wrist, and Ms. Lee figured out some exercises and did them on her own. The acupuncturist recommended further treatment, but Ms. Lee and her family moved to Port Moody in February 2010, and Ms. Lee did not know a suitable acupuncture clinic there.
 Ms. Lee found a massage therapy clinic in Port Moody. Ms. Lee did not think the wrist was completely relieved and she had four massage therapy treatments in the period of June and July 2010. The therapist treated her back, not her wrist in particular. Ms. Lee stopped the massage because she thought that she was better.
 By the summer of 2010, Ms. Lee thought that her right arm symptoms had settled down. She did not have any symptoms after that until June 2011, when she tried operating an espresso machine. At that point, it appears that her symptoms were short bursts of pain.
 In October 2011, Ms. Lee started working out of the home, cooking Korean food. She worked for a business, two days a week, five hours a day. The work included a lot of cutting on a cutting board, and after continuous work, she felt pain in her wrist.
 Ms. Lee saw Dr. Le Nobel, physiatrist, on November 8, 2011, at the request of Ms. Lee's lawyer. Ms. Lee told Dr. Le Nobel that she only gets right wrist pain if she is cleaning or lifting things, that when she gets the pain it only lasts a second or two, and that she is not sure that the wrist pain was caused by the accident.
 Ms. Lee stopped working at the job cooking Korean food in January 2012, after about two and a half months of work.
 At the time of trial, Ms. Lee was 39 years old. Usually she does not notice any problem with her right wrist. She no longer uses the wrist protector. She may feel pain if she cuts a lot of food or lifts heavy objects. She tries to avoid doing those things. The pain comes and goes, and she is not sure that it is related to the accident.
 Ms. Lee's counsel called the evidence of Dr. Le Nobel. He is an expert in physical medicine and rehabilitation, which is a discipline often called physiatry. Dr. Le Nobel found that Ms. Lee's complaints were in keeping with an injury to the right wrist triangular fibrocartilage, although he did not find anything on physical examination which either confirmed or excluded that injury.
 Dr. Le Nobel performed a number of physical tests on Ms. Lee and none of them resulted in complaints of pain. Under cross-examination, Dr. Le Nobel testified that it was atypical, but consistent with an injury to the right wrist triangular fibrocartilage for there to have been a period of about a year without symptoms. In other words, based on the history from Ms. Lee, including the complaint of sudden and brief onset of pain, Dr. Le Nobel diagnosed a possible injury to the right wrist triangular fibrocartilage. He suggested a further imaging study. In his opinion, the symptoms are chronic.
 In Dr. Le Nobel's opinion, recurrence of left ankle pain or of right shoulder blade pain on account of Ms. Lee's injuries in the accident would be unusual. Dr. Le Nobel found that Ms. Lee had increased ligamentous laxity in her joints, and in his opinion such patients are at increased risk for more severe musculoskeletal consequences from physical trauma. He thought she would not have developed the symptoms she has absent the accident.
 Dr. Le Nobel wrote in his report that Ms. Lee's treatments have been appropriate, but she has not been fully treated. He wrote that it was uncertain if she would have made further recovery if she had continued treatment for a longer time.
 Under cross-examination, Dr. Le Nobel agreed that in order for physiotherapy to be effective, more than two sessions are required, and probably usually 36 sessions over a three?month period. He agreed that physiotherapy treatment closer in time to the injury would be preferable to years after the precipitating event. He also testified that the optimal timing for further physiotherapy would be either following surgery, if further investigation confirmed the possible diagnosis and suggested surgery, or if further investigation did not confirm the possible diagnosis, then at that time to try to get Ms. Lee using her hands more.
 Under redirect examination, Dr. Le Nobel testified that physiotherapy might improve Ms. Lee's strength, but it might also cause more inflammation and pain.
 Under cross-examination, Dr. Le Nobel did not explain how massage could have assisted Ms. Lee's wrist problem. He testified that, it “might not be an unreasonable thing to do." He also testifed that he has not prescribed acupuncture for similar wrist problems.
 Dr. Le Nobel wrote that if Ms. Lee were required to lift frequently in the 20?pound range, her limitations arising from the accident put her at risk of failure. In cross-examination, he referred to her problem as like a leaky roof that will not be a problem when it does not rain, suggesting that Ms. Lee's wrist problem will not become apparent without heavy lifting or repeated twisting.
 Depending on the results of further imaging studies, Dr. Le Nobel might recommend further treatment. He thought that strengthening exercises would be appropriate, and that she would benefit from several months of physiotherapy focused on her wrist and hand and right arm injuries.
 Ms. Lee was a straightforward witness who did not exaggerate. She was quick to acknowledge facts which reduce her claim, such as the quick healing of her left ankle problems. The defence did not challenge her credibility. I accept Ms. Lee's evidence in its entirety. I also accept Dr. Le Nobel's evidence.
 In summary, Ms. Lee suffered minor soft tissue injuries in the accident. It was a relatively low velocity accident, but in Dr. Le Nobel's opinion, Ms. Lee was at increased risk for more severe musculoskeletal consequences from physical trauma because she had increased ligamentous laxity in her joints. I accept that she suffered the injuries she has described. While she did not know whether her continuing problems were the result of the accident, I accept Dr. Le Nobel's opinion that the injuries were likely caused by the accident.
 Ms. Lee suffered pain in her left ankle which resolved after about 10 days. She suffered pain in her right wrist which gradually improved and was gone by about seven months after the accident, except for flares of pain. The injuries caused her to substantially modify her cooking and housework for less than a month after the accident. She was a homemaker and her substantial modification to her work in the home was similar to a person who would take a couple of weeks entirely off work, and then gradually increase work.
 Since the accident, Ms. Lee has modified her activities to avoid heavy lifting and repeated twisting. Ms. Lee was essentially pain-free for about a year from the summer of 2010 to the summer of 2011, and after that she has suffered minor, brief flare?ups of pain with heavy lifting or frequent use of her wrist. She does not have pain or limitation of function on a daily basis. She is at risk for future flares of pain.
 I turn first to the question of mitigation. The defence argued that Ms. Lee failed to mitigate her losses and that her award should be reduced to reflect that. The defence argued that Ms. Lee should have continued with the physiotherapy prescribed by her doctor. There was no evidence that the doctor recommended a specific number of physiotherapy sessions.
 The defence bears a heavy burden in establishing a reduction in damages on the basis of failure to mitigate. The applicable law is well summarized in Fox v. Danis, 2005 BCSC 102, at paragraphs 35 to 37, affirmed at 2006 BCCA 324, and I will read in those three short paragraphs:
 There is no dispute that every plaintiff has a duty to mitigate his/her damages, and that the burden of proving a failure to fulfil that duty rests with the defendant, the standard of proof being the balance of probabilities: Janiak v. Ippolito,  1 S.C.R. 146.
 In this case, the Defendant submits that the Plaintiff failed to mitigate her loss in that she failed to exercise as recommended by her family doctor.
 To succeed in proving these submissions, the Defendants must establish, on the balance of probabilities, that the Plaintiff failed to undertake this recommended treatment; that by following that recommended treatment she could have overcome or could in the future overcome the problems; and that her refusal to take that treatment was unreasonable: Janiak v. Ippolito, supra and Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.).
 Ms. Lee had a duty to mitigate her damages. She only attended two sessions of physiotherapy. However, Dr. Le Nobel's opinion was that it was uncertain if Ms. Lee would have made further recovery if she had continued treatment for a longer time. The defence has failed to establish, on the balance of probabilities, that by following the recommended treatment, Ms. Lee could have overcome or could in the future overcome the problems.
 As a result, there will not be any deduction from Ms. Lee's award on the basis of failure to mitigate.
 I turn next to the award for non?pecuniary damages. Ms. Lee's counsel, Mr. Bauer, relied on Cameron v. Hsu, 2012 BCSC 56, in which Madam Justice Hyslop awarded $40,000 for non?pecuniary damages.
 Ms. Hong for the defence referred to the decision of the Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34, in respect of the general principles regarding non?pecuniary damages. Paragraphs 45 and 46 are as follows:
 Before embarking on that task, I think it is instructive to reiterate the underlying purpose of non-pecuniary damages. Much, of course, has been said about this topic. However, given the not-infrequent inclination by lawyers and judges to compare only injuries, the following passage from Lindal v. Lindal, supra, at 637 is a helpful reminder:
Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual's loss is the key and the "need for solace will not necessarily correlate with the seriousness of the injury" (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada (1981), at p. 373). In dealing with an award of this nature it will be impossible to develop a "tariff". An award will vary in each case "to meet the specific circumstances of the individual case" (Thornton at p. 284 of S.C.R.).
 The inexhaustive list of common factors cited in Boyd that influence an award of non-pecuniary damages includes:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(e) emotional suffering; and
(f) loss or impairment of life;
I would add the following factors, although they may arguably be subsumed in the above list:
(g) impairment of family, marital and social relationships;
(h) impairment of physical and mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton,  B.C.J. No. 163 (QL), 2005 BCCA 54).
 The defence relied on the awards made in four cases for non?pecuniary damages: Saluja v. Wise, 2007 BCSC 706, in which Madam Justice Loo awarded $3,500 for such damages; Brar v. Kaur, 2010 BCSC 1220, in which Mr. Justice Truscott awarded $4,000 for such damages; Vuong v. Wong, 2007 BCPC 172, in which Provincial Court Judge Yee awarded $2,000 for such damages; and McLachlan v. Hamon, 2001 BCSC 778, in which Mr. Justice Burnyeat awarded $3,500 for such damages regarding one of the accidents.
 No two cases are identical. Cameron is the case cited by Ms. Lee's counsel in which $40,000 was awarded for non?pecuniary damages. In that case, Mr. Cameron attended 13 physiotherapy treatments in the months after the accident and was prescribed anti?inflammatory drugs. Mr. Cameron had further physiotherapy treatments for a few months in early 2010, which was about one and a half years after the accident, and again in late 2010 through early 2011, which was about two and a half years after the accident.
 An examining doctor found reduced range of motion in Mr. Cameron's neck and weakness in his right hand on an examination which was two and a half years after the accident and about nine months before the trial. Mr. Cameron had complained of headaches which had resolved.
 Madam Justice Hyslop found that Mr. Cameron had difficulty with his neck and shoulder when doing office work and when not working on site and in good weather. Mr. Cameron's complaints include continuing restrictions on his range of motion and other problems, and in general his complaints are more significant than Ms. Lee's.
 I turn now to the cases cited by the defence. In Saluja, Madam Justice Loo awarded $3,500 for a wrist injury which had significantly improved within a month, generally resolved after three months, after which Ms. Saluja had occasional pain. In Brar, Mr. Justice Truscott awarded $4,000 for non?pecuniary damages for an injury that resolved five or six months after the accident. In Vuong, Judge Yee awarded $2,000 for neck pain that resolved two months after the accident. In McLachlan, Mr. Justice Burnyeat awarded $3,500 for an injury that lasted several months.
 Ms. Lee's complaints are of relatively minor pain, or at least pain that does not last very long. She continued to seek treatment for about seven months after the accident. She has modified her activities to avoid triggering the pain. The modifications have not had a significant impact on her activities. She has had some flares of pain and is at risk for further flares.
 The cases cited by the defence are more similar to Ms. Lee's circumstances than the Cameron case, although Ms. Lee's wrist injury did not resolve for a longer period than it took for the injuries to resolve in any of the cases cited by the defence.
 In this case, Ms. Lee was 37 at the time of the injuries. The ankle resolved after about 10 days, and the wrist substantially resolved after about seven months. Ms. Lee has been left with chronic intermittent short?lived pain, which is triggered by heavy lifting and repeated twisting, but which she is able to avoid by modifying her activities to avoid those actions. This has not significantly affected her ability to work as a homemaker or in work or other activities that she is likely to pursue.
 In all the circumstances, a fair award for Ms. Lee's non?pecuniary damages is $5,000.
 Ms. Lee seeks $794.11 for her special damages. The defence accepted that Ms. Lee spent that amount on treatment; however, the defence argued that Ms. Lee should not recover the $210 she claims for acupuncture treatments or the $384.30 she claims for massage therapy, because the treatments were not prescribed by a doctor. Ms. Lee found the acupuncture treatments very helpful and the massage somewhat helpful.
 A defendant should only be required to pay for treatments that were reasonably necessary and were a result of the injuries. Dr. Le Nobel considered that Ms. Lee's treatments had been appropriate, and he was aware of the acupuncture and massage therapy treatments. The defence argued that it was inconsistent for Dr. Le Nobel to give the opinion that acupuncture was an appropriate treatment when he has not prescribed that treatment for such an injury and when he was now recommending further investigation and physiotherapy. I do not accept that argument. There are many possible modalities of treatment, and Dr. Le Nobel is entitled to conclude that a certain treatment was reasonable, even if might not be his first choice of treatment now.
 In this case, the acupuncture apparently significantly assisted Ms. Lee's wrist problem. As a result, Ms. Lee is entitled to the full amount of her claim for acupuncture.
 I have more difficulty with Ms. Lee's claim for massage therapy. While Dr. Le Nobel said that it may not have been unreasonable, he could not explain how the treatment would have helped Ms. Lee's wrist. Ms. Lee may have felt generally better after the massage treatment, but that does not establish that it was required reasonably by her injuries. Ms. Lee bears the burden of establishing that the massage expense was reasonably required as a result of the accident and she has not established that. As a result, I am deducting $384.30 from Ms. Lee's claim for special damages.
 Ms. Lee is entitled to $409.81 for special damages.
 Ms. Lee claims $500 for future care costs and the defence accepts that. It is based on Dr. Le Nobel's recommendation for physiotherapy by specialists in the wrist.
 In summary, Ms. Lee is entitled to non?pecuniary damages of $5,000, special damages of $409.81, and future care costs of $500, for a total award of $5,909.81.
 Is there any submission on costs?
 MR. BAUER: No, there isn't.
 MS. HONG: No, My Lady.
 THE COURT: All right. Is there anything else then?
 MR. BAUER: No, there isn't.
 THE COURT: No? All right. Thank you, counsel.
The Honourable Madam Justice Gray