Gregory v. Insurance Corporation of British Columbia,

• Jurisdiction: British Columbia
• Judge: Newbury, Kirkpatrick and Garson, JJ.A.
• Neutral Citation: 2011 BCCA 144
• Citation: 2011 BCCA 144,(2011), 303 B.C.A.C. 92 (CA),30 BCLR (2d) 114,303 BCAC 92,[1988] CarswellBC 313,[1988] BCJ No 1392 (QL),5 WCB (2d) 316,6 MVR (2d) 19,303 B.C.A.C. 92,[1988] B.C.J. No 1392 (QL),(2011), 303 BCAC 92 (CA)
• Date: 03 February 2011
• Court: Court of Appeal (British Columbia)

Gregory v. ICBC (2011), 303 B.C.A.C. 92 (CA);

    512 W.A.C. 92

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. MR.062

Valerie Gregory (appellant/plaintiff) v. Insurance Corporation of British Columbia and Tamara Walton (respondents/defendants)

(CA038030; 2011 BCCA 144)

Indexed As: Gregory v. Insurance Corp. of British Columbia et al.

British Columbia Court of Appeal

Newbury, Kirkpatrick and Garson, JJ.A.

March 28, 2011.

Summary:

The plaintiff was injured in a motor vehicle collision in 2006. She sustained a number of soft tissue injuries that had largely resolved by the time of trial, with the exception of her shoulder injury. Liability was admitted by the defendant.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 352, assessed the plaintiff's damages and awarded her judgment for $131,526.94. The plaintiff appealed from the assessment of damages, arguing that: (1) the trial judge's assessment of future loss of earning capacity was inordinately low and could not be supported by the evidence; (2) the trial judge erred in dismissing her claims for future care costs on the basis that the evidentiary support for those claims rested on the recommendation of an occupational therapist rather than a physician; and (3) the judge erred in reducing the entire award by 10% for her failure to mitigate her damages by refusing to undergo cortisone injections.

The British Columbia Court of Appeal allowed the appeal in part by increasing the award for future cost of care by $30,000 and by reversing the trial judge's decision to reduce the total award by 10%.

Damages - Topic 62

General principles - Considerations in assessing damages - Similar cases - The British Columbia Court of Appeal stated that "comparator cases are of limited utility in the assessment of awards for future losses, generally. It is well settled that an individual's earning capacity is a capital asset ... An award for future loss of earning capacity thus represents compensation for a pecuniary loss. It is true that the award is an assessment, not a mathematical calculation. Nevertheless, the award involves a comparison between the likely future of the plaintiff if the accident had not happened and the plaintiff's likely future after the accident has happened ... The degree of impairment to the plaintiff's earning capacity depends upon the type and severity of the plaintiff's injuries and the nature of the anticipated employment at issue. In valuing the award, the judge must consider the likely duration of the plaintiff's prospective working life and must account for negative and positive contingencies which are unique to each case. The final award must be fair and reasonable in all the circumstances. This assessment requires a very fact-intensive, case-specific inquiry ... Thus, other than to provide a rough guide, comparator cases do not bear the same useful function that they perform in the assessment of non-pecuniary losses" - See paragraphs 32 to 34.

Damages - Topic 1011

Mitigation - In tort - Personal injuries - Treatment for - The plaintiff was injured in a 2006 motor vehicle collision - She sustained soft tissue injuries that had largely resolved by the time of trial, with the exception of her shoulder injury - The plaintiff appealed from the trial judge's decision to reduce the plaintiff's entire damage award by 10% on account of the plaintiff's failure to mitigate her damages by undergoing cortisone treatment - The British Columbia Court of Appeal allowed this ground of appeal and reversed the judge's decision to reduce the award by 10% - The trial judge erred in her application of the correct test for a failure to mitigate, as articulated in Chiu v. Chiu (BCCA) - The physicians testified only that it was a reasonable treatment to try, and it might afford some relief - Such an opinion did not meet the threshold for reducing an award as described in Chiu - See paragraphs 50 to 59.

Damages - Topic 1549

General damages - For personal injury - Impairment of earning capacity - The plaintiff was injured in a 2006 motor vehicle collision - She sustained soft tissue injuries that had largely resolved by the time of trial, with the exception of her shoulder injury - The plaintiff appealed from the trial judge's award of $50,000 for loss of earning capacity on the grounds that the judge failed to provide adequate reasons to explain the basis for her award, and that the award was inordinately low - The plaintiff said that the judge's reasons revealed that she failed to consider important evidence concerning the plaintiff's future employability, given her modest education and limited pre-accident job skills - The British Columbia Court of Appeal dismissed this ground of appeal - The trial judge did not forget, misconceive, or ignore important evidence - The trial judge was alive to the existence of contingencies and possibilities, which she valued based on the "chance" that the events would occur - Given the judge's description of the impairment as minor, and given the plaintiff's circumstances as described by the trial judge, the award of $50,000 could not be said to be inordinately low - See paragraphs 13 to 35.

Damages - Topic 1549

General damages - For personal injury - Impairment of earning capacity - [See Damages - Topic 62 ].

Damages - Topic 1567

General damages - General damages for personal injury - Future care and treatment - The plaintiff was injured in a motor vehicle collision - The plaintiff appealed from the trial judge's assessment of damages for future care costs - She argued that the judge erred in principle in failing to award damages for future care costs on the ground that the opinion about the necessity for such an award was that of an occupational therapist rather than a physician - The British Columbia Court of Appeal stated that it was not necessary that a physician testify to the medical necessity of each and every item of future care that was claimed - However, there had to be some evidentiary link drawn between the physician's assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional - The court found no evidentiary support from the physicians for the occupational therapist's recommendations for chiropractic services - However, there was a consensus among the physicians that the plaintiff had difficulty lifting above shoulder height and difficulty with prolonged heavy or repetitive motion above shoulder level, and that in general she would continue to have persistent pain and weakness - The evidence of the physicians therefore provided some evidentiary basis for the recommendations for assistance with heavy housework, and yard maintenance - The trial judge erred by failing to consider those claims on the basis only that there were no recommendations from the medical practitioners - The court substituted an award of $30,000 over the amount already awarded under this head of damages - See paragraphs 36 to 49.

Cases Noticed:

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, refd to. [para. 14].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620, refd to. [para. 14].

Cory et al. v. Marsh (1993), 22 B.C.A.C. 118; 38 W.A.C. 118; 77 B.C.L.R.(2d) 248 (C.A.), leave to appeal denied (1993), 157 N.R. 319 (S.C.C.), refd to. [para. 15].

Dhillon et al. v. Mischki et al. (2000), 133 B.C.A.C. 287; 217 W.A.C. 287; 2000 BCCA 95, refd to. [para. 15].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 16].

Steward v. Berezan et al. (2007), 238 B.C.A.C. 159; 393 W.A.C. 159; 64 B.C.L.R.(4th) 152; 2007 BCCA 150, refd to. [para. 17].

Kerr v. Macklin, [2004] B.C.T.C. Uned. 125; 2004 BCSC 318, refd to. [para. 28].

Schnare v. Roberts, [2009] B.C.T.C. Uned. 397; 2009 BCSC 397, dist. [para. 29].

Dycke v. Nanaimo Paving and Seal Coating Ltd. et al., [2007] B.C.T.C. Uned. I89; 2007 BCSC 455, refd to. [para. 30].

Grant v. Diels et al., [1996] B.C.T.C. Uned. C82 (S.C.), refd to. [para. 31].

John v. Landry, [2006] B.C.T.C. Uned. D77; 2006 BCSC 1767, refd to. [para. 31].

Parypa et al. v. Wickware et al. (1999), 119 B.C.A.C. 32; 194 W.A.C. 32; 1999 BCCA 88, refd to. [para. 32].

Rosvold v. Dunlop et al. (2001), 147 B.C.A.C. 56; 241 W.A.C. 56; 84 B.C.L.R.(3d) 158; 2001 BCCA 1, refd to. [para. 32].

Ryder v. Paquette, [1995] B.C.J. No. 644 (C.A.), refd to. [para. 32].

Lawin v. Jones (1994), 49 B.C.A.C. 249; 80 W.A.C. 249; 98 B.C.L.R.(2d) 126 (C.A.), refd to. [para. 33].

Marois v. Pelech et al. (2009), 272 B.C.A.C. 239; 459 W.A.C. 239; 2009 BCCA 286, refd to. [para. 34].

Ferguson v. Lush (2003), 188 B.C.A.C. 118; 308 W.A.C. 118; 20 B.C.L.R.(4th) 228; 2003 BCCA 579, refd to. [para. 34].

Boyd v. Harris (2004), 195 B.C.A.C. 217; 319 W.A.C. 217; 237 D.L.R.(4th) 193; 2004 BCCA 146, refd to. [para. 34].

Romanchych v. Vallianatos (2010), 282 B.C.A.C. 46; 476 W.A.C. 46; 2010 BCCA 20, refd to. [para. 35].

Jacobsen v. Nike Canada Ltd. (1996), 19 B.C.L.R.(3d) 63; 133 D.L.R.(4th) 377 (S.C.), refd to. [para. 38].

Aberdeen v. Zanatta - see Aberdeen v. Langley (Township) et al.

Aberdeen v. Langley (Township) et al. (2008), 261 B.C.A.C. 116; 440 W.A.C. 116; 2008 BCCA 420, refd to. [para. 38].

Rizzolo v. Brett (2010), 292 B.C.A.C. 33; 493 W.A.C. 33; 2010 BCCA 398, refd to. [para. 38].

Chiu v. Chiu (2002), 174 B.C.A.C. 267; 286 W.A.C. 267; 2002 BCCA 618, appld. [para. 53].

Turner v. Coblenz, [2008] B.C.T.C. Uned. G13; 2008 BCSC 1801, refd to. [para. 54].

Authors and Works Noticed:

Cooper-Stephenson, Ken, Personal Injury Damages in Canada (2nd Ed. 1996), pp. 512, 513 [para. 34].

Counsel:

S.J. Henshaw, for the appellant;

J.D. Baker, Q.C., for the respondent.

This appeal was heard on February 3, 2011, at Vancouver, B.C., before Newbury, Kirkpatrick and Garson, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Garson, J.A., on March 28, 2011.