Morlan v. Barrett et al., 2012 BCCA 66

• Judge: Lowry, Frankel and Neilson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 06, 2011
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 66;(2012), 317 B.C.A.C. 64 (CA);317 BCAC 64

Morlan v. Barrett (2012), 317 B.C.A.C. 64 (CA);

    540 W.A.C. 64

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. FE.022

Colleen Morlan (respondent/plaintiff) v. Jason Scott Barrett, Rebecca Pangan, and Alfredo Pangan (appellants/defendants)

(CA038682; 2012 BCCA 66)

Indexed As: Morlan v. Barrett et al.

British Columbia Court of Appeal

Lowry, Frankel and Neilson, JJ.A.

February 9, 2012.

Summary:

The plaintiff was involved in two motor vehicle accidents that occurred in quick succession. At the time, she was 46 years old and an executive secretary. The defendants admitted liability for her injuries. The matter proceeded to trial on the issue of damages. It was not disputed that the accidents caused the plaintiff's fibromyalgia (diffuse pain throughout her body), diagnosed some nine months to a year after the accidents.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 1767, assessed damages on the basis that the injuries were indivisible. The trial judge awarded a total of $610,453: (a) non-pecuniary damages ($125,000); (b) loss of future income earning capacity ($425,000); (c) cost of future care ($53,243); and (d) special damages ($7.210). The defendants appealed.

The British Columbia Court of Appeal allowed the appeal to the extent of reducing the award for loss of future income earning capacity by $150,000 and the cost of future care award by approximately $10,000.

Damage Awards - Topic 11

Injury and death - General - Continuing pain (incl. fibromyalgia, myofascial and chronic pain syndrome) - The plaintiff (then 46 and an executive secretary) was involved in two motor vehicle accidents that occurred in quick succession - It was not disputed that the accidents caused the plaintiff's fibromyalgia (diffuse pain throughout her body), diagnosed some nine months to a year after the accidents - The trial judge awarded a total of $610,453, under the following heads: (a) non-pecuniary damages ($125,000); (b) loss of future income earning capacity ($425,000); (c) cost of future care ($53,243) (physiotherapy and medications); and (d) special damages ($7,210) - The defendants appealed - The British Columbia Court of Appeal allowed the appeal to the extent of reducing the award for loss of future income earning capacity by $150,000 and the cost of future care award by approximately $10,000.

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care and treatment - The plaintiff (then 46) was involved in two motor vehicle accidents that occurred in quick succession - It was not disputed that the accidents caused the plaintiff's fibromyalgia - The trial judge awarded a total of $53,243 for cost of future care: $6,939 for six to eight physiotherapy treatments and $44,504 for medications - The report of an occupational therapist provided an evidentiary basis for the various items - In determining the lump-sum present value of future care costs, the trial judge relied on an economist's "Cost of Care Multipliers" report - On appeal, the defendants argued that the amounts awarded were "clearly excessive", and sought reduction of between 25% and 35% - They submitted that the trial judge erred in proceeding on the basis that the plaintiff would take the maximum number of physiotherapy treatments and the same amount of medication for the rest of her life, and that some discount should have been applied for negative contingencies - The British Columbia Court of Appeal agreed and reduced each of the awards by 20% - See paragraphs 72 to 76.

Damage Awards - Topic 498

Injury and death - General damage awards - Pain and suffering, loss of amenities and other non-pecuniary damages - The plaintiff (then 46) was involved in two motor vehicle accidents that occurred in quick succession - It was not disputed that the accidents caused the plaintiff's fibromyalgia - The trial judge awarded non-pecuniary damages of $125,000 - On appeal, the defendants submitted that such an award was inordinately high - The parties relied on a number of awards made by trial judges as comparators; all arose from motor vehicle accidents - The British Columbia Court of Appeal held that, although $125,000 was a "generous award, it cannot, having regard to recent awards in similar cases, be said to be so excessive as to warrant appellate intervention" - A trial judge's assessment of damages was entitled to considerable defence - Prior to the accidents, the plaintiff was a hard-working, motivated individual who applied a high level of energy in all aspects of her life - She had a long association with the labour union movement and derived much satisfaction from her job as an executive secretary, a job she could no longer perform - The accidents robbed her of her energy and left her unable to do much of what she did before - She now suffered from chronic pain and relied on medication to help get through each day - See paragraphs 62 to 71.

Damages - Topic 62

General principles - Considerations in assessing damages - Similar cases - [See Damage Awards - Topic 498 ].

Damages - Topic 818

Assessment - General - Effect of damage awards in other cases - [See Damage Awards - Topic 498 ].

Damages - Topic 1543

General damages - General damages for personal injury - Pain and suffering, loss of amenities and other non-pecuniary damages - [See Damage Awards - Topic 498 ].

Damages - Topic 1549

General damages - For personal injury - Impairment of earning capacity - The plaintiff (then 46 and an executive secretary) was involved in two motor vehicle accidents that occurred in quick succession - It was difficult for her to continue to commute to work at the B.C. Federation of Labour (B.C. Fed) - She went to work for another employer - Some nine months to a year after the accidents, she was diagnosed as having fibromyalgia - The trial judge gave two reasons for finding that there was a real and substantial possibility that fibromyalgia would shorten the plaintiff's working career: (1) "common experience" that a person with a stable but persistent energy-draining condition would find it more difficult to continue working as he or she grew older; and (2) the medical opinion evidence of the plaintiff's family physician that there was a substantial possibility that the plaintiff's condition would worsen over time - The defendants appealed the global award of $425,000 for loss of future earning capacity - The British Columbia Court of Appeal reduced the award by $150,000 - There was evidence to support the judge's finding that the plaintiff's future employability had been impaired - However, the court did not hold the same view with respect to the finding that there was a real and substantial possibility that the plaintiff would advance to a higher position (a director's position) if she had remained at the B.C. Fed - There was a complete lack of evidence as to the availability and level of competition for a directorship - The judge's finding did not take the matter above the level of speculation and therefore there was no basis for an award for the positive contingency of promotion - See paragraphs 21 to 61.

Damages - Topic 1567

General damages - General damages for personal injury - Future care and treatment - [See Damage Awards - Topic 489 ].

Cases Noticed:

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. 22].

Perren v. Lalari (2010), 285 B.C.A.C. 98; 482 W.A.C. 98; 3 B.C.L.R.(5th) 303; 2010 BCCA 140, refd to. [para. 22].

Sobolik v. Waters (2010), 296 B.C.A.C. 166; 503 W.A.C. 166; 11 B.C.L.R.(5th) 338; 2010 BCCA 523, refd to. [para. 22].

Gregory v. Insurance Corp. of British Columbia et al. (2011), 303 B.C.A.C. 92; 512 W.A.C. 92; 17 B.C.L.R.(5th) 101; 2011 BCCA 144, refd to. [para. 23].

Fan v. Chana (2011), 314 B.C.A.C. 78; 534 W.A.C. 78; 2011 BCCA 516, refd to. [para. 23].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 38].

Banque de Montréal et autre v. Hydro-Québec et autres, [1992] 2 S.C.R. 554; 138 N.R. 185; 48 Q.A.C. 241, refd to. [para. 43].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 43].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 43].

Greenall et al. v. Watson et al. (1997), 97 B.C.A.C. 244; 157 W.A.C. 244 (C.A.), refd to. [para. 43].

N.R. v. B.B. et al., [2009] 1 S.C.R. 295; 385 N.R. 85; 266 B.C.A.C. 1; 449 W.A.C. 1; 2009 SCC 10, refd to. [para. 44].

Nance v. British Columbia Electric Railway Co., [1951] A.C. 601 (P.C.), refd to. [para. 57].

Marois v. Pelech et al. (2009), 272 B.C.A.C. 239; 459 W.A.C. 239; 95 B.C.L.R.(4th) 243; 2009 BCCA 286, refd to. [para. 63].

Stapley v. Hejslet (2006), 221 B.C.A.C. 272; 364 W.A.C. 272; 263 D.L.R.(4th) 19; 2006 BCCA 34, refd to. [para. 64].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, refd to. [para. 64].

Giang v. Clayton et al. (2005), 207 B.C.A.C. 279; 341 W.A.C. 279; 38 B.C.L.R.(4th) 17; 2005 BCCA 54, refd to. [para. 65].

Simon v. Piercey, [2001] B.C.T.C. 679; 2001 BCSC 679, refd to. [para. 67].

Iliopoulous v. Abbinante, [2008] B.C.T.C. Uned. 160; 2008 BCSC 336, refd to. [para. 67].

Bjarnason v. Parks et al., [2009] B.C.T.C. Uned. 48; 2009 BCSC 48, refd to. [para. 67].

Hoff v. Joncas et al., [1996] B.C.T.C. Uned. 678; 55 B.C.L.R.(3d) 10 (S.C.), affd. (1997), 101 B.C.A.C. 251; 164 W.A.C. 251; 43 B.C.L.R.(3d) 203 (C.A.), refd to. [para. 68].

Shapiro v. Dailey et al., [2010] B.C.T.C. Uned. 770; 2010 BCSC 770, refd to. [para. 68].

Eccleston v. Dresen, [2009] B.C.T.C. Uned. 332; 2009 BCSC 332, refd to. [para. 68].

Courdin v. Meyers (2005), 209 B.C.A.C. 94; 345 W.A.C. 94; 37 B.C.L.R.(4th) 222; 2005 BCCA 91, refd to. [para. 69].

Counsel:

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

R.B. Fraser, J.M. Cameron, and D.W. Kolb, for the respondents.

This appeal was heard at Vancouver, British Columbia, on December 6, 2011, before Lowry, Frankel and Neilson, JJ.A., of the British Columbia Court of Appeal. In reasons written by Frankel, J.A., the Court of Appeal delivered the following judgment, dated February 9, 2012.