J.F.C. v. Ladolcetta et al., 2012 BCCA 27

• Judge: Levine, Lowry and Frankel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 09, 2011
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 27;(2012), 314 B.C.A.C. 309 (CA)

J.F.C. v. Ladolcetta (2012), 314 B.C.A.C. 309 (CA);

    534 W.A.C. 309

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. JA.042

J.F.C. (respondent/plaintiff) v. Meeyoung Ladolcetta and Adrian Tatsuki Wilding (appellants/defendants)

(CA037506; 2012 BCCA 27)

Indexed As: J.F.C. v. Ladolcetta et al.

British Columbia Court of Appeal

Levine, Lowry and Frankel, JJ.A.

January 19, 2012.

Summary:

The plaintiff sued for damages for personal injuries suffered in a head-on collision. He allegedly sustained, inter alia, significant soft tissue neck, thoracic, lumber spine, right shoulder, ankle, right knee and other soft tissue injuries, a compression fracture in the lumbar spine, a concussive brain injury, injury to the right knee and elbow and right shoulder, post traumatic stress disorder, depression, aggravation of psoriasis, and causation of psoriatic arthritis, with connected symptoms.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 1151, allowed the action and awarded the plaintiff $120,000 for his non-pecuniary loss, $108,500 for past wage loss, $275,000 for loss of earning capacity, special damages to be calculated, and $2,000 for future counselling costs. The defendants appealed. They argued that the trial judge erred in finding that the accident had caused a serious life-altering aggravation of the plaintiff's pre-existing medical condition (psoriasis and psoriatic arthritis) and in not finding a failure to mitigate to a higher extent by refusing recommended treatment. They also argued that the award of damages was inordinately high.

The British Columbia Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Damages - Topic 591

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - "Thin skull" or "crumbling skull" - The plaintiff sued for damages for personal injuries suffered in a head-on collision - He suffered serious physical injuries and alleged an aggravation of psoriasis and the causation of psoriatic arthritis - The trial judge allowed the action and awarded substantial damages - The defendants appealed, arguing that the trial judge erred in finding that the accident had caused a serious life-altering aggravation of the plaintiff's pre-existing medical condition (psoriasis and psoriatic arthritis) - The trial judge had concluded, inter alia, based on various experts including Dr. Gladman, that emotional trauma/stress, as well as physical trauma, could exacerbate both psoriasis and psoriatic arthritis - The defendants argued that this conclusion was based on expert opinion (especially Dr. Gladman's) for which there was no empirical medical evidence - The British Columbia Court of Appeal rejected the argument - The trial judge reached the impugned conclusion relying on the evidence of the various physicians whose opinions he had to consider - Dr. Gladman's opinion on the effect of trauma on psoriatic arthritis was consistent with the other opinion evidence which the judge found acceptable, 30 years of experience as well as with the evidence of the plaintiff's medical condition and the deterioration in his life after the accident - See paragraphs 4 to 16.

Damages - Topic 1002

Mitigation - Duty to mitigate - A trial judge reduced the amounts he assessed for a plaintiff's non-pecuniary loss and his past income loss by 20% and 30% respectively because he had failed to mitigate those losses by taking medication recommended to him in the spring of 2007 - The judge did so, at least in part, on the basis of what he described as a "modified subjective" approach to determining whether and to what extent a plaintiff had failed to mitigate loss - On appeal, the defendants argued that the failure to mitigate had to be assessed on an objective basis - The British Columbia Court of Appeal agreed that the test was objective - If a plaintiff had the capacity to make the decision about recommended treatment, and the advice was sound, the mitigation question was: what would be expected of a reasonable person in the circumstances given the plaintiff's medical condition at the material time and the advice given concerning treatment - If, through no fault of his own, the plaintiff did not have the capacity to make the decision, or the advice was not sound, the question would not arise - There was no basis to interfere with the judge's finding that the plaintiff could not reasonably have been expected to commence the recommended course of treatment before the spring of 2007 - It appeared that the judge found the plaintiff did not have the capacity to make a rational decision with respect to commencing the recommended treatment during the following six months - Alternatively, it would not have resulted in any real difference in the mitigation percentages used, particularly when the treatment was said to carry no more than a 50% rate of success - See paragraphs 17 to 29.

Damages - Topic 1011

Mitigation - In tort - Personal injuries - Treatment for - [See Damages - Topic 1002 ].

Damages - Topic 1022

Mitigation - In tort - Personal injuries - What constitutes reasonable remedial measures - [See Damages - Topic 1002 ].

Cases Noticed:

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402, refd to. [para. 13].

Daubert v. Merrell Dow Pharmaceuticals Inc. (1993), 509 U.S. 579; 113 S. Ct. 2786 (Sup. Ct.), refd to. [para. 13].

Taylor v. Long, [2007] B.C.T.C. Uned. B51; [2007] 7 W.W.R. 50; 2007 BCSC 231, refd to. [para. 13].

R. v. Terceira (J.) (1998), 107 O.A.C. 15; 38 O.R.(3d) 175; 123 C.C.C.(3d) 1 (C.A.), affd. [1999] 3 S.C.R. 866; 250 N.R. 98; 129 O.A.C. 283, refd to. [para. 14].

Janiak v. Ippolito, [1985] 1 S.C.R. 146; 57 N.R. 241; 9 O.A.C. 1, refd to. [para. 17].

Counsel:

S.B. Stewart and M.D. Wilhelmson, for the appellants;

D.N. Osborne, for the respondent.

This appeal was heard at Vancouver, B.C., on November 9, 2011, before Levine, Lowry and Frankel, JJ.A., of the British Columbia Court of Appeal. Lowry, J.A., released the following reasons for judgment for the court on January 19, 2012.