Hsu v. Choquette, 2015 BCSC 1123

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Hsu v. Choquette, 2015 BCSC 1123 Date: 20150630 Docket: M121406 Registry: Vancouver Between: Ellen Yi-Qian Hsu Plaintiff And Elizabeth Ann Choquette Melvin B. Scott and Darlene Scott Defendants Before: The Honourable Mr. Justice Schultes Reasons for Judgment Counsel for the Plaintiff: R.J. Chang Counsel for the Defendant E.A. Choquette: Y.H.A. Ng Place and Date of Trial: Vancouver, B.C. September 2-5, 8, 2014 December 5, 2014 Place and Date of Judgment: Vancouver, B.C. June 30, 2015 1.

INTRODUCTION [ 1 ] This case involves the consequences to Ellen Hsu of a rear-end motor vehicle accident that she was involved in on April 5, 2010. Liability for the accident has been admitted on behalf of Elizabeth Choquette, the driver who caused it, and as a result the focus in the trial was on the nature and severity of the injuries that Ms. Hsu received and the extent of their impact on her life. The most significant issue in that regard is whether she now suffers from thoracic outlet syndrome (“TOS”) because of the accident. 2. EVIDENCE (

a) Background [ 2 ] Ms. Hsu was 34 years old when she testified. She works as a realtor in Vancouver, with an emphasis on commercial real estate and advising developers on changing the zoning of their properties.

She married Tom Ip, who is a chartered accountant, in May 2011 and they now have a son, Aidan, who was born in July 2012. [ 3 ] Her post-secondary educational background is quite extensive -- she has a Bachelor of Science degree, a certificate in teaching English as a second language and two master’s degrees from universities in Texas, one in finance and the other in real estate. [ 4 ] According to her evidence, the unifying theme of her pre-accident lifestyle was strong involvement in sports and a high level of physical activity in general.

She was a successful multi-sport athlete in secondary school (badminton, tennis, table tennis, soccer and basketball) and continued with intramural sports, in particular badminton and basketball, in university. She also enjoyed bowling and the less team-oriented pursuits of skiing and hiking. [ 5 ] She returned to Vancouver in 2008 after being laid off from her first post-graduation job in Texas due to a downturn in the U.S. economy.

She continued to be physically active following her return -- skiing once or twice a month in the winter and hiking regularly throughout the summer. [ 6 ] She became licensed and then began to work in real estate in Vancouver in the fall of 2009, initially dealing with residential sales. That fall and winter she played basketball in a league and badminton with her soon-to-be husband and his friends, as well as with her sister. She also played tennis once a month or so. Her skiing was less frequent after she started working, confined to one multi-day trip and taking visiting friends.

This pattern continued up to the date of the accident the following April.

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b) The Accident [ 7 ] Except for the fact that it involved two collisions, the circumstances of the accident were unremarkable. [ 8 ] Ms. Hsu was driving northbound on Willingdon in Burnaby when the car in front of her stopped suddenly. She was able to stop herself in time to avoid hitting it, but the car behind her then struck her from the rear, pushing her car into the one in front of her.

Her hands were on the steering wheel and her right foot was on the brake when she received these hits. [ 9 ] It is obvious from the damage to the vehicles involved that the amount of force from the impacts went beyond the trivial, and the capability of the forces involved to produce at least some injuries was not disputed. [ 10 ] She and the experts who testified on her behalf all made reference to these “two hits”, driving her body forward and then backward, as playing a

part in the injuries that she suffered. (

c) Post-accident Symptoms, Treatments and Effects on Lifestyle [ 11 ] Ms. Hsu’s initial physical sensations following the accident were tight muscles in her neck, shoulders and lower back, soreness and “a little bit of pain” throughout her body. In particular she had pain in her “wrist area” and in her right leg, down to the ankle. She felt very sore that evening. [ 12 ] More troublesome symptoms developed from there. According to Ms. Hsu the worst problems, distilled to their essence, are: • Pounding headaches, including dizziness: The headaches begin at the back and move around to the sides of her head.

She experiences them three or four times per week. Once or twice a week there is dizziness and sometimes ringing in her ears associated with them. They have intensified to the point where she is taking more painkillers and muscle relaxants to alleviate them than she was originally. Occasionally they will last for an entire day, to a point that she is unable to function and just has to lie down and rest.

Approximately once per month the pain reaches a level that requires her to take Tylenol 3s. • Pain in her neck and shoulder and travelling down her arms, including tingling, numbness, and weakness in her arms and hands: The pain and tenderness to the neck and shoulder is on both sides. It inhibits the mobility in her neck and causes her pain when she is required to raise her arms, lift objects or carry her son, who as of the time of trial weighed 28 pounds. Very little has changed in these symptoms since the accident and she actually believes that they may be worsening.

She feels weakness in her arms when engaging in repetitive activity, with a burning sensation travelling down to her wrist. She experiences constant tingling and weakness in all ten digits of her hands, and a sense of inflammation and pain in her wrists. The pain in her right wrist “intensifies more” she said. • Pain in her lower back, eventually travelling down her right leg and causing pins and needles in her ankle and foot: (At one point in her evidence she also described this pain as originating in her hips) .

Sitting for extended periods aggravates this situation, as does carrying heavier items and activities that require bending. Occasionally after bending she has to gather her strength before she can stand back up. Treatments and prescribed exercises offer some relief, but when she gets busy at work or otherwise has to be physically active it “comes back with a vengeance.” At the time she testified she felt that she was in the lower level of the cycle of the severity of her symptoms.

Overall, since the time of the accident she says that this condition is “a little bit better but not that much.” The symptoms are “pretty much constant.” She finds some relief from taking anti-inflammatory medication and painkillers, as well as from engaging in a variety of treatments, including physiotherapy, chiropractic, massage, acupuncture, active rehab and more recently a therapy called Feldenkrais, which involves attempts to relax the muscles. [ 13 ] Less serious, but still present and causing her discomfort, is pain in her upper back (with tightness in the shoulder blade and a feeling that her body is slouching forward), hips and wrist. [ 14 ] A major effect of the pain and numbness that she experiences is that she tires much more easily.

The sense of fatigue is constant. She finds herself less productive and has to take more frequent breaks from work and other activities than she did before the accident. She avoids extended periods of driving and organizes her work tasks around the obstacles posed by her symptoms. In this regard she finds that commercial real estate work is less physically demanding than residential work was. (Ms.

Hsu is not claiming for past wage loss or impairment of future earning capacity, so it was not necessary to explore this aspect of her injuries in any greater detail.) [ 15 ] In general her pain intensifies in the evening and she sleeps poorly because of it, having to repeatedly adjust her position to be more comfortable during the night.

She and her husband have gone through several different mattresses trying to find one that will make her comfortable and her physiotherapist has recommended that she use a bolster to put her legs in a better position while sleeping. [ 16 ] In addition to her extensive involvement in the various forms of treatment that I have described, which were documented in the admissions of fact, she also applies heat packs and takes hot showers in an effort to relax her muscles. [ 17 ] Her symptoms have made it impossible for Ms. Hsu to maintain her previous level of physical activity.

The actions that are required to play basketball, badminton, bowling, tennis and table tennis all aggravate her symptoms in different ways and in any case she no longer has a sufficient amount of energy to engage in vigorous activity for extended periods.

She said that she felt good about herself when she played sports and that it is disappointing to her that she “can’t do more than half the stuff” that she used to do. [ 18 ] Because of the weakness in her legs she has not attempted to ski or snowboard since the accident and her attempts to resume hiking on easy trails have left her in a lot of pain and required lengthy recovery periods.

Her preference would have been to engage in more active vacations with her husband, but due to her symptoms they have opted for more passive ones such as cruises. [ 19 ] In addition to having problems lifting and carrying her son, Ms. Hsu found herself unable to bathe him because of the pain caused by bending and the weakness in her arms. Perhaps more significantly, she was unable to maintain the required position for

breastfeeding, even with pillows for support, and the shorter periods that she was able to stand affected her milk supply, leading to her son being fed with formula sooner than she and her husband had planned. This made her feel like a poor mother, she said. Her physical situation has caused her and her husband to put plans for a second child on hold for the time being. [ 20 ] She has a very close relationship with her parents and siblings and she frequently brings her son to her former family home when her husband is working, so that they can help her in caring for her son and she can rest.

Her in-laws help her in the same way. [ 21 ] She testified that her agreement with her husband when they moved in together after marrying was that she would do the major share of the housework, allowing him to work the long hours that his accounting practice requires at certain times of the year. Her husband’s recollection in his evidence was that they had actually agreed to split these tasks equally, in the interests of fairness. However it was common ground that since the accident she has not been able to perform any of the household tasks that require repetitive movement, reaching or lifting.

After some unsuccessful attempts by Mr. Ip to fill this gap himself, they have hired a cleaner at a cost of $60 per week. [ 22 ] Her reduced ability to maintain the physical positions needed for cooking has led to the family eating restaurant meals much more often, which are both more expensive and less healthy. [ 23 ] Finally, Ms. Hsu described a decline in her social life as a result of her injuries, because many of her social relationships are based on joint participation in sports. [ 24 ] In cross-examination Ms.

Hsu agreed that before the accident, as far back as 2007, she had complained of lower back pain and numbness in her right leg and that after running for an hour or playing badminton her leg felt week. She also agreed that she had been referred to see an orthopedic surgeon for these issues in 2009, still before the accident had occurred. Her response was that the surgeon told her that she was fine and that she should come back in a year if she had any problems.

She considered herself to be “fine” in that respect at the time that the accident happened. [ 25 ] With respect to her wrist and hand problems, she conceded that Dr. Luke, her family doctor had suggested to her that she suffered from carpal tunnel syndrome (“CTS”) in both wrists. (Dr. Luke had confirmed both of these findings in his evidence and also advised that he had referred Ms. Hsu for nerve conduction studies for further investigation of her possible CTS.

With respect to her pre- accident lower back pain he pointed out that she was still able to do regular sports activities despite it.) [ 26 ] She agreed with the suggestion that she was required to reduce her physical activity to an extent once she was pregnant with her son in 2011 and 2012.

She maintained that during the period after the accident but before the pregnancy it was her accident symptoms that affected her activities. [ 27 ] In addition, in response to the suggestion that her sleep problems could be explained by the requirements of caring for an infant or young child, she drew a distinction between problems caused by her son’s night waking and those caused by her accident symptoms. [ 28 ] It was put to Ms.

Hsu that during her examination for discovery her initial response to a question about her headaches was that they were “much better.” However she pointed out that in a later answer at the discovery she had clarified that her problem with headaches “goes up and down”, in other words that it was cyclical. [ 29 ] The evidence of her husband, her sister Julie Hsu and her mother-in-law Pee Lee Ip provided some general support for Ms. Hsu’s account of her pre-accident lifestyle, as well as her symptoms and their impact on her housekeeping and child care abilities and her recreational pursuits.

In particular, Julie Hsu described the extensive amount of support that she and the rest of her family provide to her sister in caring for her son in their home. [ 30 ] Dr. Luke testified about his factual observations of Ms. Hsu’s condition, rather than offering any medical opinion. Her recitation of her symptoms to him during various visits in a manner that corresponds to her evidence on the trial is of course of no evidentiary value in itself, but during examinations he made some observations that could be described as objective, both shortly after the accident and closer to the time of trial.

Most notably, he found tenderness in her neck and upper and lower back on palpation, more on the right side than on the left. (

d) Expert evidence

i) Dr. Feldman [ 31 ] He is a physiatrist, who had actually retired from practice after a long career by the time he testified. His report on Ms. Hsu’s behalf was based on an examination of her that he carried out in April of 2014. [ 32 ] He placed emphasis on the two-hit nature of the underlying car accident, which would have caused severe changes in the movement of her upper body. [ 33 ] He was not persuaded that her pre-accident low back complaint played any role in her current condition, in view of her claim that her current pain began after the accident.

In cross-examination he mistakenly asserted that this low back complaint, for which she was referred to the orthopedic surgeon, had also arisen after the accident and therefore was simply a different perspective on the same essential problem. Ms. Hsu’s counsel corrected this misunderstanding, which was not reflected in Dr. Feldman’s report, in re- examination, [ 34 ] He found that the range of motion in her neck was restricted when turning to the right and also when tilting the neck backwards.

In addition, she had pain in her right shoulder and knee, and tenderness and weakness in right-sided muscles in the shoulder area, including pain radiating to the right pelvis.

[ 35 ] His clinical impression was that Ms. Hsu had “generalized weakness in all four limbs, worse on the right than on the left, causing joint pain because of the lack of support for the underlying joints.” Her neck and shoulder muscles, particularly on the right side, were involved in this phenomenon.

The burning sensations that she described suggested a nerve-related chronic pain syndrome. [ 36 ] He recommended that she participate in a pain management program, perform strengthening exercises for the muscles in her right neck and shoulder area, and use a TENS machine (which introduces a mild electric current into the affected area to reduce the sensation of burning pain). [ 37 ] He also recommended that she have further imaging done of her neck to rule out a movement disorder. ii) Dr. Salvian [ 38 ] He is a vascular surgeon who has developed a sub-specialty in the diagnosis and treatment of TOS.

His report was provided on Ms. Hsu’s behalf. Like Dr. Feldman, he also saw her in April 2014. [ 39 ] He explained that TOS is caused by compression of the vein, artery or nerves in the area called the thoracic outlet, which is where they pass over the first rib out of the chest and neck, under the collarbone and into the arm. Most people who develop it following trauma have anatomical variations, such as a cervical rib or fibrous bands that make the nerves more susceptible to compression. [ 40 ] The type of TOS that Dr. Salvian diagnosed in Ms.

Hsu’s case was neurogenic (nerve-based), caused by compression of nerves in an area known as the brachial plexus. [ 41 ] Through a series of standard physical tests, he was able to provoke the symptoms of tingling in the right arm and all of the fingers and severe pain in the right shoulder and neck. His review of her medical and therapeutic records revealed a post-accident history of pain and tenderness in the right neck and shoulder muscles, right shoulder pain and numbness travelling down that arm to the fingers. He did not find many symptoms on the left side. [ 42 ] His opinion was that Ms.

Hsu’s headaches and neck pain were related to injury to the muscles and ligaments of the neck and upper back.

He qualified this aspect of his opinion by emphasizing that he is not a specialist in these types of injuries. [ 43 ] More significantly, his opinion was that her numbness, tingling and pain radiating into all of her fingers but mainly the thumb, forefinger and middle finger of the right hand was “due to a combination of post traumatic TOS and likely a component of carpal tunnel syndrome.” [ 44 ] The majority of sufferers of this type of TOS have a compression of the nerve root that affects the fourth and fifth fingers, but a significant number instead experience compression of the nerves that affect the thumb, index finger and forefinger, like Ms.

Hsu. The compression results from a spasm of the paraspinal (next to the spine) muscles. It is intermittent, depending on the amount of muscle spasm at a particular time. [ 45 ] In Dr. Salvian’s view, there was more than enough trauma involving forward and backward movement in Ms. Hsu’s accident to have produced injury to her paraspinal muscles, resulting in a compression of her brachial plexus. [ 46 ] In reaching this conclusion, Dr. Salvian ruled out two other potential causes of the same arm and hand symptoms. [ 47 ] Radicular pain results from compression of the nerve roots as they exit the spine.

An MRI of Ms. Hsu’s cervical spine showed no indications of such a condition, nor did clinical testing produce any evidence of it. [ 48 ] Peripheral neuropathy results from the compression of the ulnar nerve at the elbow or the median nerve at the wrist. When it occurs at the wrist it is known as CTS. While she has discomfort with wrist movement, her tests for CTS were negative, including very sensitive nerve conduction testing. In his opinion it is very unlikely that severe CTS would produce negative nerve conduction results.

Further, the distribution of numbness throughout all of the fingers, albeit with greater symptoms in the first three fingers, suggests a more diffuse nerve irritation than just CTS alone. [ 49 ] What is possible is that she has a sub-clinical or hidden level of CTS, which exacerbates the symptoms of the TOS. This is known as “double crush syndrome”, in which nerve compression closer to the neck also renders a nerve located farther away more sensitive. [ 50 ] He recommended that Ms.

Hsu engage in the Feldenkrais therapy that she described recently having embarked on, and see a kinesiologist to develop an exercise program. [ 51 ] In cross-examination Dr. Salvian rejected the possibility that Ms. Hsu’s symptoms are due to the compression of a myofascial trigger point (hyper-irritable spots in the fascia over the muscle). Her distribution of symptoms is quite specific for the type of nerve compression that he has identified. It is also not clear to him what nerves would be compressed by such trigger points if it is not the brachial plexus that he is referring to.

In his view this is a neurological condition. [ 52 ] He thought it was also important to note that CTS, which is caused by nerve compression at the wrist level, cannot explain the neck pain and the pain radiating down Ms. Hsu’s arm. iii) Dr. Dost [ 53 ] He is a neurologist who testified on behalf of the defence. He examined Ms. Hsu in October of 2013. He produced three reports -- an initial opinion, a response to Dr.

Salvian’s report and a clarification of the factual assumptions on which his opinions were based. [ 54 ] His initial report included a lengthy appendix raising the dangers of misleading results provocative testing for nerve entrapment

issues (of the kind that Dr. Salvian performed); the need for caution when interpreting either positive or negative results of nerve conduction studies for CTS; the disputed nature of the type of TOS that Dr. Salvian diagnosed (due to, among other difficulties, the lack of agreed upon clinical features for it); the speculative and unproven nature of double crush syndrome and the need to distinguish between neurological and non-neurological pain before making a diagnosis of any nerve entrapment condition (such as TOS or CTS). [ 55 ] In his opinion, Ms. Hsu’s headaches are chronic, due to whiplash.

Over-the-counter pain medication is suitable to deal with them. [ 56 ] He concludes that her shoulder, arm and finger issues were due to two separate conditions. First, she has shoulder pain on both sides with pain that travels from it to her right upper arm. Second, her sensory symptoms in her hand are consistent with CTS. He ruled out any relationship between the accident and the CTS, because of the lack of a direct injury producing immediate symptoms or indirect injury to the musculoskeletal structures resulting in delayed symptoms.

The development of her symptoms on the right side from intermittent to constant since her pregnancy is “classic” for that syndrome, in his opinion, as pregnancy and postpartum are significant risk factors for its development. These symptoms did not interfere with her daily activities or vocational pursuits in any event. [ 57 ] He found no evidence of TOS. [ 58 ] He believes that her lower back and leg symptoms were due to a worsening of a pre-existing lumbar disc herniation, which was already symptomatic. Because of the subjective nature of the symptoms and the fact that Ms.

Hsu displayed nonorganic findings (that is, symptoms with no anatomical cause) on her entire right side, in the form of a 50% reduced sensitivity to pinprick stimulation, Dr. Dost was unable to determine that any disability had resulted from this injury. [ 59 ] He disagreed with Dr. Salvian’s diagnosis of TOS. He agreed that Ms. Hsu suffers from myofascial pain syndrome (muscle spasms causing both pain at the area of injury and referred pain in other areas) but emphasized that this fully explains her other symptoms.

As he put it: The court should also be aware that compression of musculature in an individual with myofascial trigger points will create neurological symptoms (pseudoneurological) without neurological compression. This occurs via the phenomenon of central sensitization. [ 60 ] Dr. Dost’s other concerns with Dr. Salvian’s diagnosis included: • his failure to perform a full neurological sensory exam to address the fact that there were some non-organic findings, or to perform the most sensitive tests for CTS; • his incorrect assertion that the symptoms go beyond what would be expected from CTS.

Patients with that condition do in fact experience such symptoms; • the lack of specificity to TOS in the tests that he performed. These tests will also be positive for CTS and myofascial pain syndrome; • The high level of false negative results of nerve conduction studies for CTS, meaning that Ms.

Hsu’s negative test here does not rule it out as the complete cause of her hand symptoms; and • the controversial nature of this form of TOS (as, in effect, a diagnosis of exclusion which lacks objective and reliable criteria to support it) and the lack of evidence to support the validity of double crush syndrome; [ 61 ] Put simply, Dr. Dost sees no need to resort to the diagnoses made by Dr. Salvian when the well-recognized phenomena of myofascial pain and CTS fully explain all of Ms. Hsu’s symptoms. [ 62 ] As to the existence of the relationship between the accident and the hidden CTS that Dr.

Salvian suggested, Dr. Dost highlighted the lack of any sign of a sufficient injury to her wrist and the fact that her potential CTS symptoms were on both sides. [ 63 ] In cross-examination he clarified that his assertion with respect to the presence of pre-existing lower back symptoms simply meant that at some time prior to the accident she had had symptoms in that area. The ultimate determination of the existence of symptoms as of the time of the accident would have to be based on Ms. Hsu’s credibility, the assessment of which he freely conceded was not his area. 3. DISCUSSION (

a) Credibility, Reliability and Findings of Fact [ 64 ] On the whole I found Ms. Hsu to be a credible and reliable witness. She had an unfortunate tendency to recite the entire litany of her symptoms whenever the opportunity presented itself and she was rather vague and inflexible when dealing with the possibility that any of those symptoms might have improved over time, even if only marginally.

She also became somewhat emotional and defensive under a very mild and courteous cross-examination. [ 65 ] But on the core of her evidence -- concerning her pre-accident pursuits, the symptoms of her injuries and the effect of the pain on her day-to-day life -- she sounded like she was describing actual events as she experienced them, rather than working backwards from a desired outcome to advance her claim.

In particular, I found her pride in her athletic accomplishments and active lifestyle before the accident and the contrastingly diminished sense of self-worth that she now demonstrates to be believable. [ 66 ] Although her husband, sister and mother-in-law obviously have a personal connection to her, their evidence had a low-key and

idiosyncratic quality and it did not seem to me that they were supporting her position on any other basis than their own independentobservations of her condition. [67] In general, I accept her description of her physical experiences since the accident and their effect on the life that she is now ableto lead. I also accept her assertion that her previous low back issues were not troubling her when the accident occurred. [68] Except on the issue of whether Ms. Hsu has TOS, CTS or a combination of them, the expert evidence is not really in conflict.

Itseems obvious that the accident caused reasonably severe soft-tissue issues that go into spasm regularly, causing neck and shoulder painand headaches. Although Dr. Dost’s contention that Ms. Hsu’s lower back problem was symptomatic at the time of the accident is nolonger sustainable in light of my acceptance of her evidence on that point, even on his version of events he thought that the accident hadat least aggravated that condition. [69] The fundamental conflict that requires resolving is with respect to her arm and hand symptoms, and what syndromes are mostlikely to have produced them. [70] Clearly Dr.

Salvian and Dr. Dost are both very experienced and knowledgeable expert witnesses in their respective fields. [71] While in the abstract one might well defer to a neurologist over a vascular surgeon on an issue of nerve compression, it seems tome that Dr. Salvian’s extensive clinical experience in this sub-specialty and his obviously extensive knowledge of the various structuresin the thoracic outlet area addresses any presumed disadvantage that he might otherwise have based on his general specialty.

I also foundhis report very clearly expressed and his responses to questions on cross-examination very fair and balanced. He did not seem to me to beacting as an advocate for the kind of TOS here that he has diagnosed here, which Dr. Dost regards as controversial. He merely explained,in a very straightforward and understandable way, why he believes that condition is present. [72] In contrast both Dr. Dost’s reports and his testimony were more combative, and seemed strategically directed to defeating theavailability of this disputed form of TOS. The portion of his evidence that actually dealt with Ms.

Hsu was rather superficial by contrast. [73] The essence of Dr. Dost’s rejection of TOS here is that well-known and well-accepted conditions (myofascial pain syndromeand CTS) are sufficient to explain all of Ms. Hsu’s symptoms, so there is no need to resort to the controversial or unprovable diagnosesthat Dr. Salvian offered. I found these alternative explanations, which rested more on general assertions than on the diagnosis of theactual plaintiff before the Court, less convincing than Dr.

Salvian’s fairly transparent explanation of the syndrome and its relationship tohis clinical findings. [74] The mechanism by which myofascial pain produces pseudoneurological symptoms that mimic neurological ones over anextended area of the body was not well explained by Dr. Dost. I was left unclear how central sensitization figures into Ms. Hsu’s specificsituation. It is noteworthy on that point that Dr.

Feldman emphasized during his cross-examination that pain that results in compressionof myofascial trigger points only extends to the length of the actual muscle involved. [75] As to the ability of CTS to account for all of the hand symptoms, I preferred Dr. Salvian’s very focused analysis of the potentialrole of hidden CTS here to Dr. Dost’s general assertion of the wide range of symptoms of CTS that can present in any given situation. [76] I was intrigued by Dr. Dost’s allegations of methodological shortcomings in Dr. Salvian’s approach but to the extent that theywere put to Dr.

Salvian in cross-examination, he did not accept them. They were also not described or explained by Dr. Dost in a way thatendowed them with any inherent reliability or persuasiveness. They caused his report to seem more like a critique of Dr. Salvian’sapproach than a stand-alone opinion. [77] For these reasons, I prefer and accept the evidence of Dr. Salvian that Ms. Hsu suffers from TOS, in this case based on nervecompression. (

b) Loss of Housekeeping Capacity [78] The principles to be applied to this head of damages were succinctly summarized in Yip v. Saran, 2014 BCSC 1283: [81] Awards for loss of housekeeping capacity may be made for either past or future losses, or both: see Kroeker v. Jansen (1995),123 D.L.R. (4th) 652, (B.C.C.A.), at para. 25… Such claims are different from a future cost of care claim in that theyreflect a loss of a personal capacity and are not dependent on whether replacement housekeeping costs are actually incurred: seeO'Connell v. Yung, 2012 BCCA 57, at para. 67.

An award ordered for loss of housekeeping capacity is for the value of the work thatwould have been done by the plaintiff but which he or she is incapable of performing because of the injuries at issue. A claim in respectof loss of housekeeping capacity is also distinct from a claim for non-pecuniary damages. Even though the claim is not dependent onwhether replacement housekeeping costs are actually incurred, it is frequently valued using a replacement cost approach. [82] However, any award should be approached conservatively: see Kroeker, at para. 29. [79] Ms.

Hsu’s counsel suggests that her past loss of capacity should be valued according to the cost of the house cleaner that sheand her husband have been required to employ, multiplied by the number of months since they have been living together. That wouldyield an award of $3,720. [80] He suggests that a reasonable award for future losses would be $10,000. [81] Ms. Choquette’s counsel does not make a specific submission on the amount of damages, but draws my attention to some of theinconsistencies in the evidence of Ms. Hsu and her husband on this issue. [82] I think he is correct that Mr.

Ip’s recollection that the pre-accident arrangement was that the couple would divide housekeeping

tasks equally has relevance to the actual consequences of Ms. Hsu’s loss of capacity. His recollection, which made sense to me andwhich I prefer over her more expansive view of her housekeeping role, means that roughly half of the work for which she claimscompensation for being unable to do since the accident, would not have been her responsibility in any event.

Therefore I think that theaward for past losses should be reduced by the same proportion -- to $1,860. [83] Where there is a lack of clear evidence valuing a loss of housekeeping capacity (as opposed to a concern about whether a losshas occurred) it is open to the trial judge to reflect it in the award of non-pecuniary damages. (See for example Eaton v. Regan, 2005BCSC 3 at para. 46 and Papineau v. Dorman, 2008 BCSC 1443 at para. 295.) That is the course of action that I will take in this case. (

c) Non-pecuniary Damages [84] The purpose of non-pecuniary damages is "to compensate a plaintiff for pain, suffering, loss of enjoyment of life and loss ofamenities": Jackson v. Lai, 2007 BCSC 1023, at para. 134. [85] Stapley v. Hejslet, 2006 BCCA 34 at para. 46 provides a helpful list of factors to consider in assessing the amount of such anaward: The inexhaustive list of common factors…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; (

d) disability; (

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, [2005] B.C.J.No. 163 (QL), 2005 BCCA 54). [86] Stapley also referred to the following passage from Lindal v. Lindal, (SCC), [1981] 2 S.C.R. 629 at p. 267: Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability toameliorate the condition of the victim considering his or her particular situation.

It therefore will not follow that in considering what partof the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual's loss is thekey and the "need for solace will not necessarily correlate with the seriousness of the injury" ... In dealing with an award of this nature itwill be impossible to develop a "tariff".

An award will vary in each case "to meet the specific circumstances of the individual case"... [Emphasis added by Kirkpatrick J.A.; citations omitted.] [87] When assessing non-pecuniary damages, fairness is measured against awards made in comparable cases. However, while suchcases are helpful they serve only as a rough guide, as each case depends on its own unique facts: Kuskis v. Tin, 2008 BCSC 862, atpara. 136; and Grier v. Saadzoi, 2009 BCSC 478, at para. 26. [88] In this case Ms. Hsu’s injuries have affected her life in various ways, several of them quite serious.

Most importantly, herongoing pain, weakness and fatigue have restricted her ability to participate fully in many of the important family roles and recreationalpursuits that she values. [89] Her counsel submits that an award under this heading in the range of $85,000 - $100,000 would be appropriate. He relies onprevious decisions in which TOS was among the injuries suffered by the plaintiff: Case Circumstances Non-PecuniaryDamages

Hooper v. Nair,2009 BCSC 862 The plaintiff was a pedestrian who was struck at acrosswalk. She suffered soft tissue injuries to her neck,shoulder and back as well as TOS, including pain down hershoulder and arm and tingling in her fingers. The shoulderand back symptoms were still present almost six years afterthe accident. Among the effects on the plaintiff were herinability to resume her jogging program and to engage inphysical activities with her six-year-old child. Five percentwas deducted to reflect that she would have suffered someof her existing back pain due to a pre-existing condition. $89,500 Cimino v.

Kwit,2009 BCSC 912 The plaintiff was injured in a “two hit” collision similar tothe one experienced by Ms. Hsu here. The judge acceptedthat she continued to suffer from the effects of TOS threeyears later. Her work, physical activity level, mental stateand family relationships all suffered as a result of her levelof pain. $85,000 Olson v.

Ironside,2012 BCSC 546 Another “two hit” collision, which produced soft tissuesinjuries, TOS on both sides, but also several additionalserious difficulties, including major depressive disorder,post-traumatic stress disorder and permanenttemporomandibular joint dysfunction. $100,000 Gillam v.

Wiebe,2013 BCSC 565 As a result of a rear-end collision the plaintiff suffered fromsoft tissue injuries, TOS, headaches, deterioration in hermood, sleep deprivation and significant weight gain. $90,000 Shallow v.Dyksterhuis, 2013BCSC 1761 The plaintiff was struck by an overtaking logging truck asshe attempted to make a left turn. She suffered TOS, a mildtraumatic brain injury, soft tissue injuries and headaches.The judge accepted the evidence of a physiatrist that hersymptoms had improved significantly since their onset. $85,000 [90] The cases provided by counsel for Ms.

Choquette to address a situation in which there is no finding of TOS are obviouslyinapplicable at this point. The cases that he submitted in the alternative deal with more serious kinds of soft tissue injuries or variousnerve impingement issues, short of a diagnosis of TOS, and involve awards in the $20,000 - $35,000 range. I am satisfied that casesinvolving TOS occupy their own distinctive range of non-pecuniary damages, which was accurately illustrated by the authoritiessubmitted by Ms.

Hsu’s counsel, so these alternative authorities from the defence do not assist me in arriving at a fair award. [91] Considering the unique circumstances of this case, but keeping in mind awards made for roughly comparable injuries and levelsof pain and suffering, and adding an amount for the insufficiently documented yet legitimate claim for future loss of housekeepingcapacity, I will award $87,500 under this heading. (

d) Future Care [92] In order for a plaintiff to be compensated for the cost of future care there must be a medical justification for her costs and theymust be reasonable: Milina v. Bartsch (1985), (BC SC), 49 B.C.L.R. (2d) 33 (S.C.) at 84. [93] My preference for Dr. Salvian’s opinion over Dr. Dost’s extends to accepting the former’s recommendations about the ability ofFeldenkrais therapy and an exercise program to bring some measure of relief for her symptoms, despite his overall view that TOS is not“cured” by conservative therapy. [94] I agree with Ms.

Hsu’s counsel that her current expenses for Feldenkrais and a personal trainer ($130 and $50 per sessionrespectively) are a good measure of future costs for these types of care. The requested amount of $5,000 seems quite conservative ifthese treatments are to extend over multiple years, and so I consider an award in that amount to be reasonable and appropriate. (

e) Special Damages [95] The proper analysis for awarding special damages was well-explained in Redl v. Sellin, 2013 BCSC 581: [55] Generally speaking, claims for special damages are subject only to the standard of reasonableness. However, as with claims forthe cost of future care (see Juraski v. Beek, 2011 BCSC 982; Milina v. Bartsch (1985), (BC SC), 49 BCLR (2d) 33(BCSC)), when a claimed expense has been incurred in relation to treatment aimed at promotion of a plaintiff’s physical or mental well-being, evidence of the medical justification for the expense is a factor in determining reasonableness.

I accept the argument expressedthrough Dr. Frobb, that a patient may be in the best position to assess her or his subjective need for palliative therapy. I also accept theplaintiff’s counsel’s argument that in the circumstances of any particular case, it may be possible for a plaintiff to establish thatreasonable care equates with a very high standard of care. In the words of Prof. K. Cooper-Stephenson in Personal Injury Damages inCanada, (2d ed., 1996) at p. 166: Even prior to the Supreme Court’s endorsement of the restitution principle [in Andrews v.

Grand & Toy Alberta Ltd. and Arnold v.Teno], in the area of special damages the courts had been prepared to allow optimum care, and damages were awarded for expenses of acharacter that stretched far beyond the resources of even an affluent Canadian.

That being said, and while Dr. Frobb’s paradigm of the patient becoming their own physician may have at least a superficial appeal, plaintiffs are not given carte blanche to undertake any and all therapies which they believe will make them feel good. [ 96 ] The point made by Ms. Choquette’s counsel that Ms. Hsu has embraced various treatments with extreme enthusiasm is well taken.

But in light of all of the evidence, including the fact that several of the treatments have been recommended by her doctor, I see this as an indication of her strong desire to manage her pain and become more functional, rather than of a speculative indulgence in every conceivable therapeutic possibility. I can also see no basis other than speculation to disallow a portion of Ms. Hsu’s MRI on the basis that it must have had a purpose in addition to a therapeutic one, such as litigation, as Ms.

Choquette’s counsel has suggested. [ 97 ] I consider the out-of-pocket amounts incurred for her treatment to have been reasonable and necessary, in light of her dedication to obtaining relief, and I am prepared to award the total amount claimed of $12,422.52 4.

SUMMARY 1. Past loss of housekeeping capacity: $1,860.00 2. Non-pecuniary damages (including an amount for future loss of housekeeping capacity): $87,500.00 3. Cost of future care: $5,000.00 4. Special Damages: $12,422.52 TOTAL: $106,782.52 5. COSTS [ 98 ] My preliminary view is that Ms. Hsu has had substantial success on all of the issues of importance in this trial and should receive her costs as a result. However, if there are any matters affecting costs that counsel wish to raise they are free to make arrangements to speak to costs, provided that they contact Supreme Court Scheduling within 30 days of these reasons being issued to arrange a date. The Honourable Mr. Justice T.A. Schultes