Poirier v. Aubrey et al.

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Rowles, Lowry and Neilson, JJ.A.
• Citation: (2010), 288 B.C.A.C. 156 (CA),2010 BCCA 266
• Date: 11 May 2010
• Subject Matter: DAMAGE AWARDS

Poirier v. Aubrey (2010), 288 B.C.A.C. 156 (CA);

    488 W.A.C. 156

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. JN.005

Laurie Poirier (appellant/plaintiff) v. Fenton W. Aubrey, WS Leasing Ltd. and Canadian Car and Truck Rental Ltd. (respondents/defendants)

(CA037835; 2010 BCCA 266)

Indexed As: Poirier v. Aubrey et al.

British Columbia Court of Appeal

Rowles, Lowry and Neilson, JJ.A.

May 27, 2010.

Summary:

The 38 year old plaintiff suffered soft tissue injuries in a motor vehicle accident in September 2006 which led to the development of chronic pain that affected all aspects of her life including her ability to earn an income. She sued the defendants for damages for her personal injuries.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 75; 2010 BCSC 75, awarded the plaintiff $223,503, including $60,000 for non-pecuniary damages, $38,000 for past wage loss, $100,000 for loss of capacity to earn income, special damages of $10,503 and $15,000 for future care costs. The plaintiff appealed.

The British Columbia Court of Appeal allowed the appeal and substituted an award of $528,503, including $100,000 for non-pecuniary damages, $350,000 for loss of capacity to earn income, $15,000 for loss of housekeeping capacity.

Damage Awards - Topic 11

Injury and death - General - Continuing pain (incl. chronic pain) - The 38 year old plaintiff suffered soft tissue injuries in a motor vehicle accident in September 2006 which led to the development of chronic pain that affected all aspects of her life including her ability to earn an income - She alleged that the worst of her debilitating pain was in the front of her neck, around her sternum and collar bones, in her arms, her upper back, and across her shoulder blades - She sued the defendants for damages for her personal injuries - The trial judge found that there was a real and substantial possibility, bordering on likelihood, that the plaintiff's pain and discomfort would be relieved and her functioning improved - He awarded the plaintiff $223,503, including $60,000 for non-pecuniary damages and $100,000 for loss of capacity to earn income - The plaintiff appealed - The British Columbia Court of Appeal allowed the plaintiff's appeal - The trial judge's optimistic prognosis was not supported by the medical evidence - There was a "real and substantial possibility" that the plaintiff's injury would be permanent - The prospect of her pain being relieved to a significant degree was guarded - With continued treatment she might achieve a sufficient reduction in her pain and increase in her functioning that would permit her to regain some of the enjoyment of her life she has lost and to undertake part time employment - The court substituted an award of $528,503, including $100,000 for non-pecuniary damages, $350,000 for loss of capacity to earn income, and $15,000 for loss of housekeeping capacity (as she was unable to take care of her home and cook her meals in the same way that she once did).

Damage Awards - Topic 35

Injury and death - Arm and hand injuries - Soft tissue injuries - [See Damage Awards - Topic 11 ].

Damage Awards - Topic 57

Injury and death - Body injuries - Shoulder - [See Damage Awards - Topic 11 ].

Damage Awards - Topic 58

Injury and death - Body injuries - Clavicle and sternum - [See Damage Awards - Topic 11 ].

Damage Awards - Topic 60

Injury and death - Body injuries - Scapula (shoulder blade) - [See Damage Awards - Topic 11 ].

Damage Awards - Topic 71

Injury and death - Body injuries - Back - Soft tissue injuries - [See Damage Awards - Topic 11 ].

Damage Awards - Topic 179

Injury and death - Neck injuries - Soft tissue injuries - [See Damage Awards - Topic 11 ].

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - [See Damage Awards - Topic 11 ].

Damage Awards - Topic 495

Injury and death - General damage awards - Loss of housekeeping capacity - [See Damage Awards - Topic 11 ].

Cases Noticed:

Hooper v. Nair, [2009] B.C.T.C. Uned. 862; 2009 BCSC 862, refd to. [para. 26].

Barnes v. Richardson et al., [2008] B.C.T.C. Uned. 967; 2008 BCSC 1349, affd. [2010] B.C.A.C. Uned. 11; 2010 BCCA 116, refd to. [para. 26].

Djukic v. Hahn, [2006] B.C.T.C. Uned. 69; 2006 BCSC 154, affd. [2007] B.C.A.C. Uned. 42; 2007 BCCA 203, refd to. [para. 26].

Heartt v. Royal, [2000] B.C.T.C. 614; 2000 BCSC 1122, refd to. [para. 26].

Mowat v. Orza, [2003] B.C.T.C. Uned. 173; 2003 BCSC 373, refd to. [para. 26].

Esau v. Myles, [2010] B.C.T.C. Uned. 43; 2010 BCSC 43, refd to. [para. 26].

McTavish v. MacGillivray et al., [2000] 5 W.W.R. 554; 135 B.C.A.C. 43; 222 W.A.C. 43; 2000 BCCA 164, refd to. [para. 32].

Counsel:

T.J. Delaney, for the appellant;

R.B. Pearce and P.M.J. Arvisais, for the respondents.

This appeal was heard at Vancouver, British Columbia, on May 11, 2010, before Rowles, Lowry and Neilson, JJ.A., of the British Columbia Court of Appeal. Lowry, J.A., delivered the following judgment for the Court of Appeal on May 27, 2010.