COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
Boyd v. Harris, |
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2004 BCCA 146 |
Date: 20040315
Docket: CA29934
Between:
Robert William Boyd
Respondent
(Plaintiff)
And
Michael Brent Harris
Appellant
(Defendant)
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Before: |
The Honourable Mr. Justice Low |
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The Honourable Mr. Justice Smith |
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The Honourable Mr. Justice Oppal |
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S.B. Stewart M. Wilhelmson |
Counsel for the Appellant |
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D.K. Hori |
Counsel for the Respondent |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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14 November 2003 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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15 March 2004 |
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Written Reasons by: |
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The Honourable Mr. Justice Smith |
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Concurred in by: |
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The Honourable Mr. Justice Low |
Reasons for Judgment of the Honourable Mr. Justice Smith:
[1] The appellant (defendant below) appeals from a judgment pronounced on June 21, 2002, after a ten-day trial before Mr. Justice Powers, sitting with a jury. The jury found the appellant liable for the fractured neck, permanent spinal cord injury, and other losses that the respondent suffered as a result of an automobile accident that occurred on February 4, 1996, and assessed damages of $225,000 for non-pecuniary loss, $85,000 for past loss of income, $340,000 for loss of earning capacity, and $33,500 for cost of future care. The trial judge pronounced judgment in accordance with the jury’s verdict.
[2] The appellant submits that the awards for non-pecuniary loss and for loss of earning capacity are excessive and should be reduced by this Court.
[3] There is no serious dispute about the evidence. The appellant agrees that the respondent was a credible witness and that his testimony was consistent with the medical opinion evidence as to the nature and extent of his injuries. There was no significant disagreement of opinion among the medical witnesses. The respondent does not suggest that the jury must have misapprehended the evidence. He confines this appeal strictly to his allegation that the jury drew clearly wrong inferences as to the proper amounts of non-pecuniary damages and damages for impaired earning capacity.
[4] Before turning to the specifics of this appeal, I will make some general comments about the approach to appellate review of jury awards.
[5] Since DaSilva v. Dudas (1989), 38 B.C.L.R. (2d) 104 (C.A.) it has been settled that this Court has jurisdiction to vary a jury award of damages upward or downward: see Vaillancourt v. Molnar (2002), 8 B.C.L.R. (4th) 260, 31 M.V.R. (4th) 161, 176 B.C.A.C. 109, 290 W.A.C. 109, 2002 BCCA 685 ¶ 7 – 20. In Cory v. Marsh (1993), 77 B.C.L.R. (2d) 248 (C.A.), former Chief Justice McEachern announced a comparative test, that is, this Court should not interfere with a jury award of damages unless the award falls substantially beyond the upper or lower range of awards of damages set by trial judges in the same class of case: for a discussion of the historical development of this test and its application, see Ferguson v. Lush, 2003 BCCA 579 ¶ 32-48. More recently, in K.L.B. v. British Columbia (2003) 18 B.C.L.R. (4th) 1, 19 C.C.L.T. (3d) 66, [2003] 11 W.W.R. 203, 230 D.L.R. (4th) 513, 2003 SCC 51 ¶ 62 and in M.B. v. British Columbia (2003), 18 B.C.L.R. (4th) 60, 19 C.C.L.T. (3d) 1, [2003] 11 W.W.R. 262, 230 D.L.R. (4th) 567, 2003 SCC 53 ¶ 54, the Supreme Court of Canada reiterated that the amount of damages is a question of fact, which an appellate court cannot set aside absent “palpable and overriding error.” (See also the Negligence Act, R.S.B.C. 1996, c. 333, s. 6.) This formulation differs from the usages that have guided courts in this province for many years (“inordinately high or low,” “unreasonable and unjust,” “wholly out of proportion”), but does not, in substance, affect the standard of review for jury awards established by Cory v. Marsh: see Le v. Luz, 2003 BCCA 640 ¶ 10-13. Nevertheless, K.L.B. v. British Columbia and M.B. v. British Columbia remind us of the high degree of deference to be accorded to such findings made at the trial level.
[6] The basic principles that support a deferential standard of review for factual findings made by trial judges are the restriction of the number, length, and cost of appeals; the promotion of the autonomy and integrity of the trial proceedings; and the recognition of the expertise of the trial judge and his or her advantageous position: Housen v. Nikolaisen, [2002] 2 S.C.R. 235 ¶ 34. These principles apply equally to civil jury trials.
[7] Civil juries make a valuable contribution to the efficiency and effectiveness of the judicial system, as the findings of the Ontario Law Reform Commission’s 1996 Report On The Use of Jury Trials In Civil Cases demonstrate. Using actions commenced in Ontario over a period of several years, the Commission studied the relative lengths and costs of civil jury and non-jury trials. It concluded, at 77, that although the administrative cost of a jury trial is more than that of a trial by judge alone,
...this cost has to be balanced against the potential savings associated with the jury’s apparent effect on settlements, both before and during trial. When account is taken of the tendency of the jury to induce settlements, the overall cost of the jury does not appear to be substantial.
[8] Although the Commission found no empirical evidence to prove that unpredictability of result was a clear cause of the enhanced settlement rates it discovered, it noted that “a number of lawyers and judges” interviewed in the study believed a causal connection to exist.
[9] While some argue that predictability of outcome enhances settlement prospects, I think the findings of the Commission support the contrary view. Because juries are not made aware of the range of awards that trial judges have established in previous cases, common sense and collective values must guide their deliberations. As a result, jury verdicts are unpredictable or, at least, less predictable than those of trial judges. This uncertainty of result inherent in a jury trial of a claim for damages, coupled with the additional costs associated with that mode of trial, must surely spur the parties to reach an accommodation short of trial. Risk, an important factor in settlement negotiations, is amplified when the trial is to be by jury; the range of settlements acceptable to the parties is thereby broadened and settlement prospects are enhanced. Appellate interference with jury awards, unless circumscribed, will tend to remove from the system this incentive to settle cases.
[10] Further, juries bring to the assessment of the evidence a common sense that derives from wide and varied experiences in life. As well, a jury’s assessment of damages is influenced by the community’s values and its opinions of what would be fair, just, and reasonable in the circumstances. Mr. Justice Cory referred to the qualifications of juries to assess damages in Hill v. Church of Scientology, [1995] 2 S.C.R. 1130 ¶ 158 where he said:
Jurors are drawn from the community and speak for their community. When properly instructed, they are uniquely qualified to assess the damages suffered by the plaintiff, who is also a member of their community. This is why, as Robins J.A. noted in Walker v. CFTO Ltd. (1987), 59 O.R. (2d) 104 (C.A.), at p. 110, it is often said that the assessment of damages is "peculiarly the province of the jury". Therefore, an appellate court is not entitled to substitute its own judgment as to the proper award for that of the jury merely because it would have arrived at a different figure.
[11] On the other hand, while great deference must be afforded to jury awards, appellate courts have a responsibility to moderate clearly anomalous awards in order to promote a reasonable degree of fairness and uniformity in the treatment of similarly-situated plaintiffs. As well, outlier awards, if not adjusted, could lead to a perception that the judicial system operates like a lottery and to a consequent undermining of public confidence in the courts.
[12] The difficult problem is how to identify the extent of permissible deviation from the conventional range of awards. The comparative approach set out in Cory v. Marsh is fraught with subjective judgments. An attempt in Johns v. Thompson Horse Van Lines Ltd. (1984), 58 B.C.L.R. 273 (C.A.) to introduce a semi-objective approach found favour neither with the majority in that case nor, since then, with the Court. Interestingly, an attempt has been made in New York to base judicial review of jury non-pecuniary awards on empirical evidence and expert statistical opinion: see Geressy v. Digital Equipment Corporation, 980 F. Supp. 640 (U.S. Dist. Ct., E.D., New York, 1997). Whether such an approach would be a desirable development in our law is debatable. However, absent an objective basis for measurement of deviations from normative awards, we are left with a vague, adjectival standard that carries with it a risk of arbitrariness: what is the acceptable range and what is an excessive deviation from the range in a given case are questions on which there may be reasonable differences of judicial opinion.
[13] In Foreman v. Foster (2001), 84 B.C.L.R. (3d) 184, 2001 BCCA 26, Lambert J.A., speaking for the majority, said:
[32] This Court cannot interfere with a jury award merely because it is inordinately high or inordinately low, but only where it is "wholly out of all proportion" in that "the disparity between the figure at which they have arrived, and any figure at which could properly have arrived must ... be even wider than when the figure has been assessed by a judge sitting alone." (See Nance v. B.C. Electric Railway Co., [1951] A.C. 601 at 613-4, per Viscount Simon.) Among the reasons for this Court's reluctance to interfere with a jury award, perhaps the most important, is that we do not know the findings of credibility or of other facts which the jury may have reached on the way to their assessment. So the fact that the award may seem to this Court to be very much too high or very much too low will not be sufficient for this Court to change an award made by a jury even where it might be sufficient to change an award made by a judge alone. So it would be a rare case, indeed, where a jury award could be successfully appealed to this Court in order to make it consistent with awards in like cases. (See Johns v. Thompson Horse Van Lines (1985), 58 B.C.L.R. 273 (B.C.C.A.).
[Emphasis added]
[14] Those are useful remarks, in my view, and I take guidance from them.
The non-pecuniary award
[15] The appellant submits that the jury’s non-pecuniary award of $225,000 is, in the circumstances, substantially beyond the range of reasonable awards and requires correction by this Court.
[16] The respondent was thirty-six years old at the time of the accident that caused his injuries. He was hospitalized for almost six weeks following the accident. He was discharged with a halo brace to stabilize his neck, which he wore for another nine weeks. He took physiotherapy treatments for a few weeks after his discharge and thereafter did exercises at home. He resided with his girlfriend for about three months so that she could assist him. Since then, he has lived on his own.
[17] There was medical opinion evidence before the jury that the respondent’s spinal cord injury gives rise to localized areas of muscle dysfunction and that it interferes with the transmission of signals from the lower extremities to the brain. As well, there was evidence that he has a softening of the spinal cord in his neck and a worrisome fluid collection in the central part of his spinal cord that could lead to deterioration of spinal cord function and might require extensive surgery. Further, there was evidence that he is at increased risk of developing cysts in the spinal cord, which will be painful and could lead to neurological compromise and surgical intervention. His spinal cord condition will require close monitoring in years to come. In addition, there was evidence that his condition has worsened since the initial injury and that his spinal cord is atrophying and shrinking at the C5/C6 level.
[18] The respondent gave evidence from which the jury could reasonably have concluded that he has difficulty with proprioception or the ability to move appropriately in response to stimuli. As well, there was evidence that he has unusual reactive reflexes in both legs, increased sensitivity in his arms and legs, constant neck and shoulder pain, intermittent shooting pain in his left arm, loss of dexterity in both hands, loss of strength in his left hand, lack of balance, altered gait, lack of co-ordination, asymmetrical muscle tone in his legs, and intermittent tremors in both arms.
[19] Dr. Sundby, an orthopaedic surgeon, gave evidence that the respondent has accelerated disc degeneration at multiple levels of his spine as a result of the accident and may require a discectomy and fusion.
[20] Dr. Hirsch, a specialist in physical medicine and rehabilitation, opined that the respondent is at risk for the development of depression as a result of the effects his spinal cord injury and his constant pain. If he should develop depression, he may require psychiatric treatment and perhaps psychological counselling. Dr. Hirsch continued:
Mr. Boyd's enjoyment and quality of life has been markedly negatively impacted upon by the injuries suffered in the motor vehicle accident on February 4, 1996 and its associated biological, emotional, social and psychological sequelae.
Mr. Boyd has been unable to return to work since this motor vehicle accident. His residual impairments and disabilities probably will preclude him from getting back into his previous line of work. He does not have the balance, physical stamina or motor skills to perform the inherent tasks of his former line of work. This does not even take into account the persistent hypersensitivity and residual localized left sided neck pain and pain in the left shoulder blade region, which by themselves are probably barriers to successful reintegration into the workforce.
Mr. Boyd's clinical situation may improve following the implementation of the aforementioned recommendations. However, I would consider it unlikely that such gains would be sufficient to find gainful employment in occupations for which he is qualified by means of his education, experience and transferable skills.
A comprehensive functional capacity assessment at the conclusion of a rehabilitation program may be useful to determine Mr. Boyd's residual physical capacity. If his residual functional capacity does not match the work requirements of his former jobs, then educational upgrading and vocational retraining will have to be considered. While Mr. Boyd has the potential to work in a sedentary or semi-sedentary light physically demanding occupation, the prospects for a career change do not look promising. Mr. Boyd has only limited education and has worked all his life as a labourer.
[21] Dr. Hirsch concluded that the respondent’s hypersensitivity will not resolve, that he will be left indefinitely with neurological impairments, and that he is at increased risk of developing degenerative arthritis in his neck, which may increase his neurological disability and might require surgical intervention.
[22] Ms. Chappell, an occupational therapist, gave opinion evidence that the respondent has significant functional impairment and is no longer competitively employable. In her opinion, the respondent’s function is limited by constant pain in the neck and left shoulder, supersensitivity in his hands and legs, and difficulties with walking.
[23] The appellant emphasized a statement made by the respondent to Mr. Wallace, a vocational rehabilitation expert, that his plans before the accident were to remain living where he was and to work at construction jobs “when they were available.” However, the respondent also testified that, if he had been unable to find work in that area, he:
...would definitely have moved on. I wasn’t about to sit on welfare. I’m not a welfare person. I’ve always found my own jobs.
[24] The jury was entitled to accept the appellant’s testimony on this point and their award of damages for impairment of earning capacity indicates that they did so.
[25] The respondent testified as to the effects of his injuries. He has difficulty manipulating and gripping objects, such as when opening jars and cans, and often drops things. He cannot dress himself normally. He loses his balance. He tries to be self-sufficient and is able, for the most part, to do things for himself, albeit more slowly than before. As well, neighbours help the respondent from time to time. When he pushes himself too hard, he has to rest because of the consequent pain.
[26] The respondent testified that he enjoyed skiing, water-skiing, hiking, and playing recreational hockey before the accident and that he has not been able to do these things since the accident. He particularly liked to play his guitar but does so infrequently now; he finds that he cannot finger the chords and that he gets muscle cramps in his hand. He is able to fish, however, and enjoys that activity.
[27] The appellant submits that the respondent’s pre-existing disc degeneration should serve “to reduce the award of damages that might otherwise be made.” However, the trial judge properly instructed the jury that there was no evidence before them that the pre-existing disc degeneration might have become symptomatic but for the motor vehicle accident. Moreover, counsel for the appellant took no objection to the charge and cannot now be heard to say that the pre-existing latent condition should operate as a negative contingency on the award of damages.
[28] Next, the appellant submits that the upper limit for non-pecuniary damages established in 1978 is now $286,369, adjusted for inflation. He contrasts the respondent’s injuries with those suffered by the plaintiff in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 and other cases of “catastrophic” or “devastating” injuries and submits that the award of $225,000 in this case is excessive in relation to the upper limit.
[29] However, it is improper to compare the injuries of a particular plaintiff to those of the plaintiffs in the 1978 trilogy for the purpose of making a comparative award: see Lindal v. Lindal (1982), 34 B.C.L.R. 373 (S.C.C.); Penso v. Solowan (1982), 35 B.C.L.R. 250 (C.A.); Black v. Lemon (1983), 48 B.C.L.R. 145 (C.A.); Bracchi v. Horsland (1983), 44 B.C.L.R. 100 (C.A.); and Leischner v. West Kootenay Power & Light Co. Ltd. (1986), 24 D.L.R. (4th) 641 at 668 (B.C.C.A.), a decision of a five-judge panel of this Court. As MacDonald J.A. explained, in Penso v. Solowan, at 264, such a comparison is inconsistent with the functional approach to the assessment of non-pecuniary damages:
...because it does not give weight to the factor of the need of the particular plaintiff for solace. The extent to which comparison is properly made is indicated a pp. 263-64 from the following passage in the reasons of Dickson J. for the court in Andrews:
The amounts of such awards should not vary greatly from one part of the country to another. Everyone in Canada, wherever he may reside, is entitled to a more or less equal measure of compensation for similar non-pecuniary loss. Variation should be made for what a particular individual has lost in the way of amenities and enjoyment of life, and for what will function to make up for this loss ....
[30] Moreover, a comparative approach based on the injuries of the plaintiffs in the 1978 trilogy does not accord with the fundamental principle that questions of law are for judges and questions of fact are for juries. The amount of damages is a question of fact in every case. The upper limit, on the other hand, is a matter of law and policy, of which a jury should not be told except in cases where the trial judge expects that they might assess damages in an unlawful amount: see ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at 725. Thus, (except in catastrophic cases, it seems) the decisions establishing the upper limit are not relevant to the factual determination of the amount of a non-pecuniary award in individual cases, whether assessed by a trial judge or by a jury.
[31] In Brimacombe v. Matthews (2001), 87 B.C.L.R. (3d) 75, 2001 BCCA 206, Hall J.A., speaking for the Court on the damages issue, described the purpose and function of the upper limit in this way:
[243] ...If a plaintiff is found by a court to be catastrophically injured as a result of tortious action, the Supreme Court of Canada, in the applicable authorities, has, in my opinion, decided such an individual should be entitled to a monetary award of non-pecuniary damages that will not bankrupt society but that will, to the limited degree possible, provide a fund of money to enhance the situation of that severely injured plaintiff. The rough upper limit is, rather like a governor on an engine, a device that limits what otherwise could be an unlimited sum of damages....
[32] The governor on an engine is a useful analogy. Just as the operator of an engine may choose a speed appropriate to the circumstances, uninfluenced in that choice by the governor until the speed limit is reached, a trier of fact, be it judge or jury, must assess non-pecuniary damages appropriate to the circumstances of the particular plaintiff, uninfluenced by the legal limit. The legal ceiling, a rule of law and policy, operates, like a governor, to limit the amount of the judgment that may be granted for damages assessed under that head.
[33] In a variant of this submission, the appellant emphasizes that the respondent did not suffer “any serious head injury, permanent cognitive damage or paralysis” and urges that the award is excessive for that reason. He observes that awards by trial judges since the upper limit on non-pecuniary damages was established exceed $200,000 only where there is severe brain or spinal injury resulting in profound cognitive impairment or physical paralysis. He refers to Unger v. Singh (2000), 72 B.C.L.R. (3d) 353, 2000 BCCA 94 ¶ 32-33 in support of this submission. In that case, this Court set aside a jury’s non-pecuniary award of $187,000 and substituted a “fair” award of $90,000. In doing so, the Court remarked that the appropriate comparisons were to cases “which do not involve catastrophic injury” and that “an award in the magnitude of $187,000 for non-pecuniary damages is usually reserved for cases involving serious head injuries, permanent cognitive damage, and paralysis” [Emphasis added]. Thus, the Court did not purport to preclude an award of that magnitude for other injuries in an appropriate case.
[34] Although the Court in Unger v. Singh went on to observe that “the plaintiff did not sustain either near catastrophic psychological or near catastrophic physical harm,” it is clear that the substituted award was based on a comparison of awards in cases that did not involve catastrophic injury. I would not draw an inference from this observation that the award was scaled to the upper limit, particularly since it does not appear that the Court’s attention was drawn to Lindal v. Lindal or to the subsequent cases in this Court that have followed it.
[35] That trial judges have not previously awarded more than $200,000 except in cases of catastrophic or near catastrophic injury does not necessarily make an award in excess of that amount in a case involving other injuries excessive if the award is grounded in the evidence. The respondent noted that, in Alden v. Spooner, 2002 BCCA 592, this Court refused to interfere with a jury’s award of $200,000 in non-pecuniary damages for a young woman who suffered soft tissue injuries that developed into chronic pain syndrome, or fibromyalgia, and a serious depression. Although these injuries differ from the respondent’s, the decision is nevertheless illustrative of the respondent’s submission that an award in an amount approximating the award here can be justified without a finding of serious head injury, permanent cognitive impairment, or paralysis, contrary to the appellant’s contention.
[36] Indeed, in many of the decisions that I have reviewed, the trial judges have remarked that the particular injury under consideration was neither “devastating” nor “catastrophic.” As these are the conventional descriptors of injuries so severe that the award for non-pecuniary damages must be capped at the legal ceiling, it would appear that some judges may be assessing non-pecuniary damages in serious but non-devastating cases by comparing the injuries with the injuries of the plaintiffs in the 1978 trilogy, contrary to the authorities to which I have referred above. If so, the upper end of the reasonable range of awards by trial judges for such cases may be improperly suppressed.
[37] That observation has implications for the appellant’s next submission: that the jury award is excessive in relation to comparable cases. He contends that a more appropriate range of non-pecuniary damages is $80,000 to $100,000 and that the circumstances of this case would warrant an award at the low end of that range.
[38] The appellant’s case at trial and before us is that the respondent has made a good recovery from his injuries. He canvassed in some detail the evidence from which he drew support for that proposition. However, the jury obviously rejected the conclusion that the appellant asks us to draw. Since there was evidence before the jury that would reasonably support their view of the respondent’s condition, we cannot substitute our views.
[39] The appellant refers to the following as comparable cases that, in his submission, establish the appropriate range of non-pecuniary damages for this case: Fletcher v. Meyer, [1993] B.C.J. No. 508 (Q.L.)(S.C.); Graham v. Rogers, 2000 BCSC 605; Mirisklavos v. Manhas, [1996] B.C.J. No. 2038 (Q.L.)(S.C.); Tom v. Truong, 2002 BCSC 643; Yu v. Yu (1999) M.V.R. (3d) 285, [1999] B.C.J. No. 2801 (Q.L.)(S.C.); and Lowe v. Hardcastle, [1997] B.C.J. No. 2020 (Q.L.)(S.C.) .
[40] The respondent points out that, except for Lowe v. Hardcastle, none of the cases relied upon by the appellant involved spinal cord injuries and he emphasizes that none of the plaintiffs in those cases were rendered unemployable by their injuries. He stresses the adverse effects of his injuries on his day-to-day activities. The only decision referred to by the respondent in this part of his submission is Alden v. Spooner, supra.
[41] Our first task is to determine whether the decisions cited by the appellant are reasonably comparable to this case and whether they suggest a range of acceptable awards. Then, we must determine whether this award is within that range and, if not, whether it falls so substantially outside the range that it must be adjusted.
[42] The identification of comparable cases is not a simple task. Each case is unique. The process should be systematic and rational, not conclusory. We must therefore search for common factors that influence the awards, such as, most obviously, the age of the plaintiff and the nature of the injury. However, comparisons can be made on a more abstract level, as well. The factors to be considered include the relative severity and duration of pain, disability, emotional suffering, and loss or impairment of enjoyment of life. The awards in the comparable cases must be adjusted for inflation. When the appropriate range is identified, adjustments must be made for the particular circumstances of this case, including the plaintiff’s need for solace, which must be considered subjectively: Penso v. Solowan, supra, at 261. Then, in determining whether the award falls so far outside the acceptable range as to justify appellate interference, we must make allowance for the fact that the award was assessed by a jury. Requiring a greater margin of deviation in the case of a jury award respects the parties’ original choice to have the damages assessed by a jury rather than a trial judge. It also promotes the instructional function of jury awards, in the sense that, to some extent, departure from the conventional range established by trial judges may serve as a corrective to the views of trial judges by shifting the range so that it more accurately reflects current community standards.
[43] In Lowe v. Hardcastle, the trial judge assessed non-pecuniary damages at $75,000 ($85,000 adjusted for inflation to 2003) for a 69-year-old housewife whose injuries were similar to those suffered by the respondent in this case. She had been a traditional housewife and had never worked outside the home. As well, she was already suffering from diabetes, asthma, and “bouts of gout” when she was injured and continued to suffer from those debilitating conditions. At the time of trial, she was capable of doing most domestic chores, although with some pain. That she asked the trial judge to make an award in the range of only $65,000 to $80,000 limits the value of the $75,000 award as a comparator.
[44] Fletcher v. Meyer involved a man nine years older than the respondent. He suffered serious soft tissue injuries of his neck and back which left him with frequent pain. His disability, although permanent, was less serious than that of the respondent. He would never return to his previous employment as a heavy equipment operator but was capable of more sedentary employment. On the other hand, he suffered from depression, unlike the respondent, whose depression is inchoate. His loss of enjoyment of life equals or exceeds that of the respondent. His award was $85,000 ($101,800 adjusted for inflation). The usefulness of this award as a comparator is diminished by the trial judge’s comparative reference to “devastating” and “near catastrophic” cases.
[45] In Graham v. Rogers, a 54-year-old male suffered soft tissue injury to his neck that aggravated a pre-existing degenerative condition. Physical activity triggered pain. His disability, emotional suffering, and loss of enjoyment of life were each less serious than were suffered by the respondent. Although he was rendered unable to do the heavy physical work he did before his injury, many kinds of work remained open to him. His award was $75,000 ($80,000 adjusted for inflation). In dismissing an appeal of the non-pecuniary award, this Court said (2001 BCCA 432):
[77] It must be remembered that non-pecuniary damages are awarded on a functional basis to the end of providing substitute pleasures for those which have been lost: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 78 (S.C.). In this case, the appellant’s recreational activities have been limited as a result of the accident but he continues to be able to enjoy some of his prior pursuits. When compared with awards in other cases, I am not persuaded that the award can be regarded as so inordinately low as to be a wholly erroneous assessment of the appellant’s non-pecuniary loss.
Clearly, the respondent has suffered a more serious impairment of his enjoyment of life.
[46] Mirisklavos v. Manhas involved a 57-year-old man who suffered a prolapsed disc in his lower back. Physical activity triggered pain but it was expected that, with time, this condition would improve. His physical disability was less severe than the respondent’s. It was unlikely that he would be able to return to his previous employment, which involved heavy labour, although he might have been able to do so following corrective surgery. He was capable of other employment, and re-training was an option. His emotional suffering was relatively greater than that of the respondent, but his loss of amenities was comparable. His award was $85,000 ($99,000 adjusted for inflation). The trial judge relied heavily on Fletcher v. Meyer and was influenced, as was the judge in that case, by her conclusion that the plaintiff’s injuries were “neither catastrophic nor near catastrophic.”
[47] The plaintiff in Tom v. Truong, a young mother, suffered a fracture of her cervical spine, which healed uneventfully, and several other less serious injuries in an automobile collision. Soft tissue injuries of her neck and fractures of her ankles caused her ongoing difficulties. She was able to return to full-time work within approximately nine months of the injury. However, her disabilities prevented her from advancing in her career and threatened her ability to continue with it. She was left with chronic pain and depression. Her enjoyment of life was significantly impaired. She was likely to develop early degenerative arthritis in her neck. The trial judge awarded $80,000 ($81,000 adjusted for inflation) for non-pecuniary damages.
[48] In Yu v. Yu, the plaintiff was a 36-year-old mother. Her daughter was killed in the automobile collision in which she was injured. She suffered spinal fractures in the lumbar and thoracic spine that were surgically repaired. She was left with a permanent partial disability. She developed a depression as a result of her daughter’s death. Her condition was complicated by psychological difficulties which had their origin in either her chronic pain, which stemmed from her physical injuries, or her depression, or both. Her ability to participate in many physical activities was limited. Pain management treatment might have afforded her some relief had she taken it. As well, the conclusion of the litigation was expected to have a salutary effect on her complaints. The trial judge assessed non-pecuniary damages of $80,000 ($88,000 adjusted for inflation).
[49] In my view, this Court’s reasons in Alden v. Spooner do not set out sufficient facts to permit meaningful comparison.
[50] I have examined some cases other than those cited by counsel for their possible value as comparators for purposes of identifying the upper end of the appropriate range.
[51] Lynn v. Pearson, [1997] B.C.J. No. 539 (Q.L.) (B.C.S.C.) involved a 79-year-old man who suffered a subluxation fracture of the C5-6 vertebrae, severe narrowing of the spinal cord at the C5-6 level, and abrasions and bruising. As a result of surgery on his spine, he was left with permanent urinary incontinence. He suffered, as well, from partial paralysis of the right arm and leg. His physical abilities were seriously compromised and he could no longer carry, reach, or lift. Also, he could no longer walk moderate distances. The trial judge awarded $120,000 in non-pecuniary damages ($136,000 adjusted for inflation).
[52] In Soligo v. Turner, 2002 BCCA 73, aff’d 2001 BCSC 205, a 27-year-old school teacher suffered soft tissue injury to her left shoulder when struck by a truck. The result was chronic pain syndrome. It was unlikely that she would ever be able to teach again or that she would ever be capable of full-time work. She suffered pain more severe than that of the respondent and, as well, a profound impairment of her enjoyment of life. The trial judge awarded $150,000 in non-pecuniary damages ($152,000 adjusted for inflation).
[53] Finally, in Santi v. Pacific National Exhibition, 2000 BCSC 716, a 41-year-old woman suffered injury to her cervical and thoracic nerve roots from a blow to the head. Initially, she was diagnosed with whiplash and muscle spasms, and later with a pain syndrome in her neck and left arm and a major depressive disorder with anxiety and panic attacks. She had started a business of manufacturing and installing fireplace mantels before the accident, but was unable to continue as a result of her injuries. Her condition was disabling and it was unlikely that she would ever recover fully. Her chronic pain was excruciating. She was permanently disabled from gainful employment and her loss of enjoyment of life was substantial. The trial judge awarded her $150,000 in non-pecuniary damages ($160,000 adjusted for inflation).
[54] The cases of Fletcher v. Meyer, Graham v. Rogers, and Mirisklavos v. Manhas are the most similar comparators cited by counsel. However, the effects of the injuries on the plaintiffs in those cases were generally less severe than in the case under consideration. Moreover, none of the plaintiffs in those cases was rendered permanently incapable of gainful employment. This is a factor relevant not only to impairment of earning capacity, but also to the assessment of non-pecuniary damages as it may affect profoundly the plaintiff’s enjoyment of life. As Dickson J. said in his dissenting opinion in Reference re Public Service Employee Relations Act, etc., [1987] 3 W.W.R. 577 at 618 (S.C.C.), in a passage that has been frequently quoted since:
Work is one of the most fundamental aspects in a person’s life.... A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.
[55] In my view, the upper end of the conventional range of non-pecuniary damages awarded by trial judges for present purposes lies somewhere above the $100,000 suggested by the cases the appellant cited and closer to the $150,000 to $160,000 awarded in Soligo and Santi.
[56] The trial judge instructed the jury as to the respondent’s loss of enjoyment of life in these terms:
With regard to loss of enjoyment of life, a person is entitled to be compensated for the negative effect of the injuries upon their enjoyment of life if there is liability. You should include an amount in your award to compensate the plaintiff if you conclude that because of the accident he may be unable to enjoy life the same way he could before the accident.
You have heard evidence about the kinds of work and recreational activities that Mr. Boyd pursued before the accident and you have heard the evidence that he has given and that is in some of the reports about the limitations that he has at this time, both with regard to recreation and to work; and these are matters which affect his enjoyment of life. If you accept the evidence, then he is entitled to be compensated for the loss of enjoyment of life as part of those non-pecuniary losses. The extent of the award is a question of fact that is for you to determine and you bring to the law the common sense of the community.
[57] The jury was entitled to conclude that the respondent’s inability to work at gainful employment for the rest of his working life was a profound interference with his enjoyment of life and to award damages commensurately. This conclusion is consistent with the direction of Dickson J. in Andrews v. Grand & Toy Alberta Ltd., supra, that variations from a conventional award should primarily reflect a solatium for what the individual has lost in the way of amenities and enjoyment of life.
[58] It is obvious that the jury was favourably impressed by the respondent. Their award of non-pecuniary damages was certainly a generous one and, in my view, approaches the outer limit of what would be acceptable. However, I am not persuaded that it is so excessive that it demonstrates palpable and overriding error by the jury that would justify interference by this Court. I cannot say that it is so plainly unreasonable and unjust that on the evidence as a whole and acting judicially a jury should not have reached it. It is not, in my view, the “rare case” that would justify our interference. Accordingly, I would not accede to this ground of appeal.
Impairment of earning capacity
[59] I turn now to the issue of damages for impaired earning capacity.
[60] The respondent left school before completing Grade 11 and, between then and the accident, had worked in a variety of jobs. He was employed as a construction labourer from time to time, as a pizza deliverer, and as an installer of awnings. He was fired from his job delivering pizzas and he was laid off from several other jobs for various reasons. As a result, there have been times during the years preceding the accident when he was unemployed. In particular, he had been unemployed for approximately ten months preceding the accident, having been let go from his last job following completion of the construction project on which he was working. His total income during the years from 1985 to 1995 inclusive was $158,400. This included unemployment (now employment) insurance, which he received in each year except 1992 and 1993. In addition, he received social assistance benefits during the years from 1991 to 1995 inclusive. His total annual income varied in amount each year and ranged from nil in 1992 to $25,172 in 1989. His average annual income over the full period was $14,400.
[61] There was economic evidence that an appropriate multiplier for calculation of the respondent’s earnings from the date of trial to age 65 is $16,229 per $1,000. The appellant accepts that multiplier as appropriate for purposes of the appeal.
[62] The respondent’s economic expert projected the respondent’s loss of earnings to age 65 on the basis of certain assumptions. All of the projections were reduced for the contingencies of mortality, labour force participation rates, unemployment rates, and part-time factors. As well, none of the projections included employers’ contributions to non-wage benefits which, in the case of statutory benefits only, would add 5% to 7% to the projection and, in the case of private full-benefit packages, would add 15% to 18% to the present value of the compensation.
[63] The expert’s first projection was based on average earnings for B.C. resident males with Grade 11 or 12 education who remain throughout their lives in unskilled occupations. The projected earnings net of contingencies for this group were $381,169. Adding 7% for non-wage benefits, the projection was $407,900. The second projection chosen was for B.C. resident males working in certain occupations generally described as construction trade helpers and labourers. In this group, the projection to age 65 was $420,954, which was increased by 7% for non-wage benefits to $450,400.
[64] The appellant takes the jury’s award of past income loss of $85,000 and derives an average annual loss of $13,428, which, applying the multiplier of $16,629, produces a present value of $217,923. As well, he performs calculations based on the average annual earnings, respectively, for the five, eleven, and two years preceding the accident to calculate present values ranging from $190,682 to $240,645. These calculations do not take account of non-wage benefits. As well, he drew our attention to evidence from which the jury might have concluded that the respondent was unlikely to achieve the average level of earnings postulated by his economic expert and that he has some residual earning capacity.
[65] Further, the appellant submitted that the respondent’s pre-existing disc degeneration poses a risk that should have been reflected in a reduction of this aspect of the award. For the reasons that I have already given I would reject this submission.
[66] Specifically, the appellant submits that an award of $215,000 would be appropriate as consistent with the respondent’s earnings history and with the jury’s award for past loss of earnings and that the jury’s award of $340,000 under this head is inordinately high.
[67] The respondent referred to the evidence that he is unemployable and is unlikely to ever be employable. As well, he referred to evidence that he has earned as much as $20,000 to $25,000 annually during one period in his working history. Those annual earnings, projected with the same multiplier, would produce a present value in the order of $355,000 to $400,000, depending on the period chosen.
[68] We cannot speculate as to how the jury arrived at its award of $340,000. However, we must assume that they made every finding reasonably open to them in support of their award. There was evidence before them that would, if they accepted it, support an award in the amount they have assessed. I am not persuaded that it was unreasonable of the jury to accept that evidence, nor am I persuaded that the award of $340,000 is so wholly out of proportion as to require correction by this Court. I would reject this ground of appeal.
[69] In the result, I would dismiss the appeal.
“The Honourable Mr. Justice Smith”
I agree:
“The Honourable Mr. Justice Low”
I agree:
“The Honourable Mr. Justice Oppal”