Graham v. Rogers,

• Jurisdiction: British Columbia
• Judge: Rowles, Huddart and Saunders, JJ.A.
• Neutral Citation: 2001 BCCA 432
• Citation: 2001 BCCA 432,(2001), 155 B.C.A.C. 28 (CA),90 BCLR (3d) 69,155 BCAC 28,[2001] BCJ No 1291 (QL),(2001), 155 BCAC 28 (CA),[2001] B.C.J. No 1291 (QL),155 B.C.A.C. 28
• Date: 25 May 2001
• Court: Court of Appeal (British Columbia)

Graham v. Rogers (2001), 155 B.C.A.C. 28 (CA);

    254 W.A.C. 28

MLB headnote and full text

Temp. Cite: [2001] B.C.A.C. TBEd. JL.008

Lloyd Andrew Graham (plaintiff/appellant) v. Trevor William Rogers (defendant/respondent)

(CA027070; 2001 BCCA 432)

Indexed As: Graham v. Rogers

British Columbia Court of Appeal

Rowles, Huddart and Saunders, JJ.A.

June 25, 2001.

Summary:

The plaintiff sued the defendant for dam­ages for personal injuries suffered in a motor vehicle accident. Liability was admitted.

The British Columbia Supreme Court, in a decision reported at [2000] B.C.T.C. Uned. 202, assessed damages for nonpecuniary loss, past wage loss and loss of earning capacity. The plaintiff appealed the damages.

The British Columbia Court of Appeal allowed the appeal in part, increasing the awards for past wage loss and loss of earn­ing capacity.

Damage Awards - Topic 70

Injury and death - Body injuries - Back - Aggravation of pre-existing condition - A shingle sawyer, then age 48, was injured in a motor vehicle accident in September 1994 - The accident made a pre-existing but asymptomatic degenerative cervical spine condition symptomatic, causing disabling pain in his neck, shoulders and back and leading to a herniated disc in 1998 - He could not return to his former job or any other physically demanding one - With less than a grade nine education, he had limited work experience and nontransferable skills - The British Columbia Court of Appeal affirmed an award of $75,000 general damages for nonpecu­niary loss - See paragraphs 74 to 77.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - A 48 year old shingle sawyer with limited work experi­ence, a lack of transferable skills and less than a grade nine education suffered an aggravation of a pre-existing degener­ative cervical spine condition - He suf­fered disabling pain in his neck, shoulders and back and could no longer work at his job or any other physically demanding one - The British Columbia Court of Appeal held that the trial judge failed to consider these barriers to re-employment in assess­ing damages for loss of earning capacity - The court increased the award from $60,000 to $175,000 - See paragraphs 63 to 73.

Damages - Topic 1012

Mitigation - In tort - Personal injuries - Employment - In September 1994 a 48 year old shingle sawyer with limited work experience, no transferable skills and less than a grade nine education aggravated a pre-existing degenerative cervical spine condition - He suffered disabling pain in his neck, shoulders and back and could no longer work at his job or any other physi­cally demanding one - The trial judge ruled that the sawyer could have found other employment - The British Columbia Court of Appeal found no foundation for any lack of motivation to work in the sawyer - The court held that the sawyer was unable to work from the time he ceased working in April 1995 until trial - The defendant failed to prove that the sawyer failed to mitigate his loss - See paragraphs 35 to 58.

Cases Noticed:

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 31].

Michaels et al. v. Red Deer College, [1976] 2 S.C.R. 324; 5 N.R. 99; 57 D.L.R.(3d) 386, refd to. [paras. 35, 80].

Baud Corp., N.V. v. Brook, [1979] 1 S.C.R. 633; 23 N.R. 181; 12 A.R. 271; 89 D.L.R.(3d) 1, refd to. [paras. 35, 80].

Asamera Oil Corp. v. Sea Oil & General Corp. - see Baud Corp., N.V. v. Brook.

Caswell v. Powell Duffryn Associated Collieries Ltd., [1940] A.C. 152 (H.L.), refd to. [para. 53].

Milina v. Bartsch (1985), 49 B.C.L.R.(2d) 33 (S.C.), refd to. [para. 77].

Authors and Works Noticed:

Cheshire and Fifoot, Law of Contract (8th Ed. 1972), p. 599 [para. 81].

Williston on Contracts (3rd Ed. 1968), vol. 11, p. 312 [para. 81].

Counsel:

Robert J. Falconer, Q.C., for the appellant;

Scott B. Stewart and T. Hulley, for the respondent.

This appeal was heard before Rowles, Huddart and Saunders, JJ.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on May 25, 2001. The decision of the court was delivered on June 25, 2001, when the following opinions were filed:

Rowles, J.A. (Huddart, J.A., concurring) - see paragraphs 1 to 78;

Saunders, J.A. - see paragraphs 79 to 87.