



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Cassells v. Ladolcetta,









2012 BCCA 27




Date: 20120119

Docket: CA037506

Between:

John Franklin
Cassells

Respondent

(Plaintiff)

And

Meeyoung
Ladolcetta and
Adrian Tatsuki Wilding

Appellants

(Defendants)






Before:



The Honourable Madam Justice Levine





The Honourable Mr. Justice Lowry





The Honourable Mr. Justice Frankel




On appeal from: Supreme
Court of British Columbia, August 25, 2009
(
J.F.C. v. Ladolcetta
, 2009 BCSC 1151, New Westminster Docket M102443)




Counsel for the Appellants:



S. B. Stewart and M. D.
  Wilhelmson





Counsel for the Respondent:



D. N. Osborne





Place and Date of Hearing:



Vancouver, British
  Columbia

November 9, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 19, 2012









Written Reasons by:





The Honourable Mr. Justice Lowry





Concurred in by:





The Honourable Madam Justice Levine

The Honourable Mr. Justice Frankel








Reasons for Judgment of the Honourable
Mr. Justice Lowry:

[1]

In October 2005, when he was a 32-year-old plumbing apprentice, the plaintiff
(respondent) was involved in a head-on collision.  In November 2006, he
commenced this action for damages to compensate him for the injuries he
suffered.  It was tried over the course of three weeks in 2009 before Mr. Justice
N. Brown who, on the evidence of 19 witnesses plus 17 expert witnesses, found
the named defendants solely responsible for the accident and made a substantial
award against them.  His 77-page judgment is indexed as 2009 BCSC 1151.

[2]

The respondent had for some time suffered from, and been treated for,
skin psoriasis.  He was found to have also manifested an early indication of
psoriatic arthritis.  After the accident, in time the psoriasis became
particularly bad and the psoriatic arthritis became fully developed to the
point that the respondent was no longer able to do the physical work of a
journeyman plumber for which he had apprenticed.  The primary issue at trial
was whether, and if so the extent to which, the accident had served to aggravate
the respondents pre-existing disease.

[3]

The defendants now raise three grounds of appeal.  They first contend
the judge made an error of fact in finding, as he did, the accident had caused
a serious life-altering aggravation of the respondents pre-existing medical
condition.  They then say that, while the respondent was found to have failed
to some extent to mitigate his loss by refusing recommended treatment, the
judge erred in principle and in fact in not finding the respondent should have
taken the treatment much earlier than the judge suggested and thereby mitigated
his loss to a much greater extent.  Finally, they say the award of damages is
inordinately high.

The Aggravation of Psoriasis and Psoriatic Arthritis

[4]

While the focus at trial was primarily on the respondents psoriasis and
psoriatic arthritis, he was otherwise quite badly injured in the accident.  In
particular, he suffered extensive soft tissue injury to his neck, thoracic and
lumbar spine, right shoulder, elbow, and right knee, as well as a compression
fracture in his lumbar spine, all which left him with residual symptoms that it
was said he would continue to experience to some degree.  In addition, he
sustained a minor frontal lobe brain impact injury and he developed what the
judge found to be a subclinical post traumatic stress disorder.  The judge
compared his life before the accident with what it was afterward, as follows:

[30]      At this time in his life it is clear from the
evidence that the plaintiff was functioning well, even without benefit of
Willows intensive therapy and its usual remissionary effects.  He was happy,
optimistic, and looking forward to becoming a journeyman plumber, to making a
lot of money, and eventually to marriage and children.  Apart from his
psoriasis, he was in good mental and physical health.

[31]      It is equally clear
that within three years after the accident, his health and psychological state
had deteriorated to the extent it led Dr. M. W. Jones, a neurologist who
examined him with respect to his concussion, to comment in his report, Its
rather sad and upsetting to see what has happened to this gentleman over the
last 3 years in terms of his overall dramatically decreased Quality of Life.

[5]

The defendants contend the change in the respondent may be in large part
attributable to the psoriasis and psoriatic arthritis from which he suffers,
but say the evidence does not establish that is a consequence of the accident. 
They say, in particular, the judges conclusion in this regard is based on
expert opinion for which there is no empirical medical evidence.  It is, they
say, opinion that should have been afforded no weight  it had no evidentiary
value  such that the judge made an overriding and palpable error in relying
upon it to make the findings of fact he did.

[6]

The judge described psoriasis and psoriatic arthritis as follows:

[15]      The evidence of the medical experts explained that
psoriasis is what is thought to be an auto-immune mediated skin disease that
can fall anywhere on a graph between a minor nuisance to grave condition.  It
is not curable, but in most cases treatment can control it, with varying
degrees of success.  Most people with this condition can work and live their
lives mostly unimpeded, but in some cases it can be a challenging, even
debilitating, and worse, disease to live with.  Dermatologists usually treat
psoriasis.

[16]      Psoriatic arthritis is
a form of arthritis closely connected to psoriasis.  It is also thought to be
auto-immune mediated.  Not all people with psoriasis develop psoriatic
arthritis, which typically presents itself in some form within 10 years,
usually in peripheral joints.  Rheumatologists treat psoriatic arthritis, so
psoriatic arthritis patients consult with two specialists, one to treat the
skin, the other the joints.

[7]

The respondent was diagnosed with psoriasis in 1992, when he was 19 or
20.  The psoriasis would wax and wane.  It had on occasion covered as much as
60% of his body.  In 2002, he took a course of phototherapy treatment at the
Willow Skin Clinic which was effective in substantially reducing the psoriasis
on his skin.  The therapy was repeated perhaps three times before the
accident.  It was not a cure but would retard the psoriasis coverage on his
body to as little as 6%.  The psoriasis would then return incrementally until
he had the next treatment.  He took only one treatment after the accident, in
January 2006.  Psoriasis can, over a period of years, lead to psoriatic
arthritis, but prior to the accident the respondent had no generalized symptoms
in his joints.  The indication he had the disease was a discomfort in his foot
(said to have been plantar fasciitis) in 2003 that he overcame using prescribed
orthotics.

[8]

After the accident, the respondents psoriasis continued to wax and wane
but in time it became worse and the psoriatic arthritis took hold and became
symptomatic, apparently beginning with what he described as a flare involving
his ankles, Achilles tendon at the back of his right foot, his right toe,
elbow, the small of his back, and right knee soon after the accident.  The
respondent convalesced for four months before returning to work.  It appears
that his medical concerns in 2006 were as much or more related to the other
injuries he had suffered, and emotional difficulties he was having, as they
were to the psoriasis and arthritis, although, as indicated, he underwent
treatment at the Willow clinic in January.

[9]

Things appear to have turned for the worse in the fall of 2006 in
respect of his skin condition and, although he was working, he was having great
difficulty because of the arthritis in his ankles and feet in particular, and
the fatigue the arthritis caused.  The judge followed the course of the
respondents deterioration thereafter in great detail.  All of his difficulties
caused him to stop working in June of 2007 and abandon his hope of becoming a
journeyman plumber.  His life from the time of the accident had been one of
unending medical attention from many doctors of differing disciplines, as well as
seeing a psychologist, a physiotherapist, and a vocation counsellor. 
Consistent with the expert opinion he accepted, the judge concluded that all the
plaintiff had suffered, physically, psychologically and emotionally, had served
to aggravate his psoriasis and psoriatic arthritis.  He concluded as follows:

[189]  ... All of the plaintiffs
injuries and associated symptoms, including those from his mild concussive
frontal lobe injury, his subclinical PTSD and its symptoms, the stress and
anxiety he experienced related to pain from his soft tissue injuries, his
incrementally worsening psoriasis and psoriatic arthritis, and his inability to
work operated over time to produce a serious depression.  These factors in
varying degrees punctuated the plaintiffs experiences from the time of the
accident onwards, and produced the levels of psychological stress that produced
the ongoing exacerbation of the plaintiffs condition that plaintiff experts
identified as the cause of the worsening of the plaintiffs psoriasis and
psoriatic arthritis.  Given the extensive evidence heard, I find this
consilient view of the evidence and medical opinions removes the need to reduce
judicial findings to specific diagnostic categories; at the same time more
accurately reflecting the actual subjective experiences of the plaintiff.  These
causative stressors were caused directly or indirectly by the accident, subject
to consideration of mitigation arguments.

[10]

To reach that conclusion, the judge had to decide whether psoriasis and
psoriatic arthritis could be aggravated by trauma and stress such as the
respondent suffered.  Opinion evidence of rheumatologists and dermatologists as
well as psychiatrists and other physicians bearing on the point in varying
degrees was tendered on both sides.  After thoroughly reviewing all of the
expert evidence adduced, the judge concluded:

[153]    Given the evidence
before me from rheumatologists and dermatologists, as well as Dr. OShaughnessy
and other experts called, there are sound and substantial reasons for
concluding that emotional trauma/stress, as well as physical trauma, may
exacerbate both psoriasis and psoriatic arthritis, and I so find.

[11]

The conclusion is consistent with the opinion of Dr. Dafna Gladman,
recognized to be the leading rheumatologist in Canada on psoriatic arthritis,
upon which the judge relied.  She wrote:

With regards to the relationship
between the psoriatic arthritis and the motor vehicle accident, since [the
respondent] had evidence of psoriasis and possibly psoriatic arthritis
(presence of plantar fasciitis a couple of years before the accident), one
could not claim that the accident led to the development of psoriatic
arthritis.  However, it is quite possible that the accident precipitated more
severe psoriasis and more aggressive psoriatic arthritis.  In [the
respondents] case, although the trauma did not cause the psoriatic arthritis,
it certainly made it worse.  We have seen this response to trauma among our
patients with psoriatic arthritis.

[12]

Dr. Gladman referenced various medical papers written on the subject
that she considered supported her opinion to some extent and was cross-examined
at length in that regard.  She acknowledged there were shortcomings in much of
what she referenced and accepted that the research on the subject of the effect
of trauma and stress on psoriasis and psoriatic arthritis is limited.  She
explained that is because the cost and time required to undertake a definitive
study would be prohibitive.  With respect to this aspect of her evidence in particular,
the judge said:

[140]    As the trier of fact, I do not see this case turning
completely one way or the other on the scientific literature; cases seldom do.
From the literature reviewed and the considerable time spent on examination and
cross-examination on it, it was obvious that the investigators themselves
believe there is a connection between physical and emotional trauma and onset
of psoriatic arthritis there to be empirically shown. Some of the (better)
studies find supporting data, but not all; all the studies are flawed in
various ways, some of the flaws discernible without expert assistance. These
are, however, the best studies available.

[141]    Scientific literature in
given fields may offer widely varying degrees of empirically rich probative
information, and no authority is needed to justify say[ing] that even perfectly
designed generously endowed ones producing relatively clear findings will not [be]
pre-eminently conclusive in the courtroomespecially unless the results are then
gathered into a clear consensus within the specialist scientific community. And
there also, one would logically still expect clinical experience to play some
part in the formation of that consensus. Further, while it is apparent that Dr.
Gladman cited research in support of her opinion, as did Dr. Shuckett, it
remained an opinion that remained foundationally formed around her knowledge of
the disease and thirty years of clinical experience and study. It is obviously
appropriate for a specialist to make reference to the best available scientific
literature; they might be subject to criticism for not doing so in some cases;
but citing it does not necessarily automatically signal that it has become the
only foundation for the opinion expressed, which it evidently was not in this
case.

[13]

The defendants challenged reliance on Dr. Gladmans evidence on
essentially the same basis at trial as they do now.  Their contention was and
remains that her opinion was based on what they say is novel science: no
scientific data established, beyond mere speculation, that her theory was
valid.  They say that at most the theory is an unproven hypothesis.  They cite
the criteria for evaluating the soundness of novel science found in
R. v.
Mohan
, [1994] 2 S.C.R. 9, 89 C.C.C. (3d) 402, as drawn from
Daubert v.
Merrell Dow Pharmaceuticals, Inc.
, 509 U.S. 579, 113 S.Ct. 2786 (1993), and
discussed in
Taylor v. Liong
, 2007 BCSC 231, [2007] 7 W.W.R. 50.

[14]

The judge said the criteria pertain to the admissibility of expert
evidence.  Admissibility requires the weighing of threshold reliability.  No
issue had been taken with the admissibility of Dr. Gladmans opinion which it
was evident is consistent with a widely held belief in the scientific
community.  Quoting from
R. v. Terceira
(1998), 38 O.R. (3d) 175, 123
C.C.C. (3d) 1 (C.A.), affd [1999] 3 S.C.R. 866, to the effect the threshold
test of reliability must adapt to changing circumstances, the judge said that,
in the face of studies that did reflect a wide provisional acceptance of
Dr. Gladmans hypothesis, the lack of a conclusive study should not be
fatal to either the admissibility or the weight of her opinion.

[15]

Unlike instances where, as in
Taylor
, the opinion of an expert
which is shown to be no more than uncertain theory has been ruled inadmissible,
here, as the judge said, Dr. Gladman expressed her opinion on the basis of what
she said she had seen in response to trauma among her patients with psoriatic
arthritis.  What is said to be the inconclusive literature she referenced was,
as the judge said, not the only foundation for the opinion she held.  It was an
opinion based on thirty years of her experience.

[16]

The judge reached the ultimate conclusion he did concerning the
aggravation of the respondents psoriasis and psoriatic arthritis relying on
the evidence of the various physicians whose opinions he had to consider.  Dr.
Gladmans opinion on the effect of trauma on psoriatic arthritis is consistent with
the other opinion evidence which the judge found acceptable, as well as with
the evidence of the respondents medical condition and, for that matter, the
deterioration in his life after the accident.  I do not consider there to
be any sound basis on which it can now be said the judge made an overriding and
palpable error in concluding the respondents psoriasis and psoriatic arthritis
were aggravated by trauma and stress attributable to the accident by relying on
Dr. Gladmans opinion.

Mitigation

[17]

The judge reduced the amounts he assessed for the respondents
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 has failed to mitigate loss.  The defendants
contend the failure to mitigate must be assessed on an objective basis, citing
Janiak
v. Ippolito
, [1985] 1 S.C.R. 146, 16 D.L.R. (4th) 1.  They say the
reductions in the judges awards should have been substantially greater.

[18]

The respondent commenced a regime of medication (methotrexate) in 2009
not very long before the trial.  He did so on the advice of Dr. Gladman after
she explained to him, apparently in no uncertain terms, the risks he faced with
respect to the progression of his disease and the benefit he may well derive
from taking the medication.  The medication is not a cure but it has a 40% to
50% success rate in controlling psoriasis as well as reducing joint
inflammation caused by psoriatic arthritis to some degree.  As the judge noted,
Dr. Gladman said the medication may not prevent the progression of joint damage;
anti-inflammatory drugs are more effective at controlling joint inflammation
and damage.  In assessing the amount he awarded the respondent for his loss in
future earning capacity, the judge assumed the treatment would to some extent
be successful and be continued.

[19]

However, the medication was recommended to the respondent by another
physician, Dr. Hong, a dermatologist, in January 2005 and, after the accident,
in December 2005.  In April of 2007, with the respondent suffering to the point
he had to stop working in June, Dr. Hong is said to have again recommended he
take the medication.  On my review of Dr. Hongs testimony, it is less than
clear why it is said he recommended the medication in April 2007.  He said he
saw the respondent then but did no more than refer him to the Willow clinic and
the respondent was unable to be clear as to when Dr. Hongs advice regarding
medication was given.  In the course of submissions, counsel stated the
medication was recommended in April 2007, but it is not evident on what basis
that statement was made.  In any event, the respondent refused the medication. 
He did not want to take it.  He apparently had done his own Internet research
and wrongly assessed the risks associated with methotrexate to be substantially
greater than they are.  He said Dr. Hong did not explain the risks and benefits
of the medication to him in the way that Dr. Gladman did.

[20]

In October 2007, Dr. Hong mentioned the opportunity of an alternative
treatment (biologics) which is said to have a success rate of 70% controlling
psoriasis and the progression of joint damage.  That treatment was
prohibitively expensive, but it would have been administered on a trial basis
at no cost.  The respondent did not pursue it.

[21]

The judge took the view that, given the deterioration in his condition
by the spring of 2007, the respondent should within perhaps six months have
commenced the treatment Dr. Hong recommended rather than waiting as he did
another year and a half to do so.  He also found the respondents failure to
address his worsening skin condition in the fall of 2006 with further treatment
at the Willow clinic (having had no treatment since January of that year) made
a significant contribution to the mix of stressors that was exacerbating both
his skin and joint condition.

[22]

With respect to the first year and a half following the accident, to
April 2007, the judge said:

[203]    Since his condition
responded to light therapy in January of 2006 and did improve to some extent in
the summer of 2006, I find it was certainly reasonable for the plaintiff to
refuse to undergo the medications for at least a year and a half.  In making
this finding I note that phototherapy was still being presented to him as a
treatment
option
(albeit his physicians considered methotrexate/biologics
the best choice), and also note his increasingly fragile psychological state.  Until
that point, I cannot find that the risk-benefit equation obligated him to take
medications, especially if his physicians did not fully and clearly explain the
risk/benefit equation to him in the way that the plaintiff says (and I accept)
Dr. Gladman did in January 2009.

[23]

With respect to the next six months, to October 2007, the judge
considered the plaintiffs accident-induced psychological state substantially
inhibited his capacity to make a rational decision.  He said:

There
came an earlier point [earlier than January 2009] however, when it should have
been sufficiently obvious to the plaintiff that his disease was changing, and
that the risk-benefit equation he was facing was now very different from what
it had been before the accident; he could no longer just cope with his symptoms
and expect them to improve.  This should have at least begun to be apparent to
him by [October] 2007, when Dr. Hong offered the plaintiff an opportunity to
participate in the free trial of a new form of biologics.  The plaintiff
declined then, citing having to cope with too many other problems then, and I
note again his fragile psychological state.

[204]    I accept witnesses
testimony about the plaintiffs state of mind and also the fact that Dr.
Gladmans forceful advice left a strong impression on him.  But I remain unable
to find that he was justified in waiting that long to commence treatment,
especially considering that his increasingly fragile psychological state was in
considerable measure related to his failure to follow earlier treatment
advice.  In my view,
Janiak
and
Elloway
[
Elloway v. Boomars
(1968), 69 D.L.R. (2d) 605 (B.C.S.C.)] lends support to making some allowance
for the plaintiffs accident-induced psychological state where it substantially
inhibited his capacity to make the rational decision, as was the case here;
only to the extent the evidence justifies, and bearing in mind that his duty to
mitigate is a positive one owed to the defendant.  In this case, I find that
allowance can be made for the effect of the plaintiffs accident-induced
psychological state on his capacity only to the extent that it excuses some
further delays in coming to the decision he ultimately made  a decision that
in itself demonstrated that Dr. Gladman was able to reason with the plaintiff;
he was ultimately capable of weighing the risks and benefits even though he was
in a fragile psychological state then too.  Dr. Hong may have explained the
risks and benefits in a less forceful way, but he impressed me as a caring and
insightful dermatologist who was genuinely concerned about the plaintiffs well
being.  I find the principles laid out in
Janiak
, and the evidence,
support a finding that within six months or so of the plaintiffs April 2007
discussion with Dr. Hong, he should have commenced a medication treatment
regimen.  This will enter accordingly into my assessment of what is a fair
reduction in damages.

[24]

The judge reasoned he could make the six-month allowance he did in the
respondents favour following Dr. Hongs recommendation in April 2007 based on
the legal analysis he undertook, quoting from
Janiak
.  He said:

[193]    The difficulty in this case lies in the fact the
plaintiff sincerely held strong negative views about taking medications in
general and methotrexate in particular.  His negative views about the potential
ill-effects of methotrexate were fuelled in part by his own misleading internet
research.  In the circumstances of this case, there is no question that based
on a pure objective test, the plaintiff ought to have followed his doctors
advice.  Likewise, if that were all that needed to be considered, the correct
result again is obvious because in Canada the law does not excuse objectively
unreasonable choices, so long as the plaintiff has the requisite capacity to
make them.
Janiak v. Ippolito
, [1985] 1 S.C.R. 146, is the foundational
case for the law of mitigation in Canada.  Wilson J., speaking for the court
explains:

24        Non-pathological but
distinctive subjective attributes of the plaintiff's personality and mental
composition are ignored in favour of an objective assessment of the
reasonableness of his choice. So long as he is capable of choice the assumption
of tort damages theory must be that he himself assumes the cost of any
unreasonable decision.

[194]    Wilson J. refers to
Morgan v. T. Wallis Ltd.
,
[1974] 1 Lloyds rep. 165 at p. 170 to explain the overarching test regarding mitigation:

...I must apply the objective test,
in this sense, would a reasonable man in all the circumstances, receiving the
advice which the plaintiff did receive, have refused the operation? I think
this question must be considered as at the times when his decision was made and
on the basis of the advice he then received...

[195]    Another way of putting this is whether the
reasonable person would refuse the treatment when faced with the risk-benefit
equation before them at the time they are making the decision?  The Court in
Janiak
summarizes the relevant consideration at paragraph 31:

31.       In making his finding as
to the reasonableness or otherwise of a refusal of medical treatment, the trier
of fact will also, of course, take into consideration the degree of risk to the
plaintiff from the surgery ..., the gravity of the consequences of refusing it
..., and the potential benefits to be derived from it ...

[196]    However, the case
becomes less obvious when accident-induced injuries take away the capacity to make
the objectively rational decision. If the plaintiffs capacity is reduced
completely, that is a straightforward case  but less so when accident-induced
injuries have substantially inhibited, though not completely removed the
plaintiffs capacity to think through rationally the risks and benefits of
recommended treatment.

[25]

The judge then quoted further from
Janiak
to support the
proposition that where it is the accident itself that impairs a plaintiffs
ability to make a reasonable decision about treatment, it would appear unjust
to limit his recovery because he failed to mitigate the loss claimed.  The
judge then said:

[199]    Canadian law rejects the
wholly subjective analytical approach of U.S. law.
Janiak
however
leaves the door open to a modified subjective approach where the plaintiffs
decision-making capacity has been less than wholly incapacitated by
accident-induced injuries.  Where it is found on the evidence that the effect
of accident induced injuries has been to inhibit
substantially
the
plaintiffs capacity to make the objectively reasonable choice,
Janiak
,
in my view, leaves it open to the trier of fact to take that commensurately
into account in assessing the degree to which damages should be reduced.

[26]

I agree that if, by virtue of the injury sustained in an accident, a
plaintiff is unable to make a reasonable decision about treatment, the
plaintiff is in no different position with respect to mitigating the loss
suffered than would be the case if, for other reasons unrelated to the
accident, the plaintiffs capacity to make reasonable decisions about treatment
was lacking.  But I cannot accept that means the law prescribes a subjective
test, modified or otherwise.
Janiak
is clear; the test is objective.  I
consider that if a plaintiff had the capacity to make the decision about
treatment it is said ought to have been made, and the advice was sound, the
mitigation question in each instance must be what would be expected of a
reasonable person in the circumstances having regard for the plaintiffs
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.

[27]

It is not simply a matter of a plaintiff having to follow the advice
given in order to mitigate the loss claimed, as the judge appears to suggest at
the outset of his legal analysis; rather, it is a matter of considering what a
reasonable recipient of such advice would be expected to do in the
circumstances having regard for the nature of the advice and any explanation of
the risks and benefits given.

[28]

That said, I see no basis to interfere with the judges finding that the
respondent could not reasonably have been expected to commence the recommended course
of treatment before the spring of 2007 following the deterioration in his
condition in the fall of 2006.  No question of any subjective consideration
arises.  It was for the judge to assess what was reasonable  what would be
expected of a reasonable person in the circumstances  and it is not plain that
he made any factual error in that regard such as would warrant the intervention
of an appellate court.

[29]

If, as appears to me, the judge found the respondent did not have the
capacity to make a rational decision with respect to commencing the recommended
treatment during the following six months, there is no basis to interfere with
his conclusion.  If, however, it could be said the respondent had the capacity
to make the necessary decision that a reasonable person would in the
circumstances have made to take the recommended medication, there would be no
justification for him not having done so.  But even if that were the case, it
would not, in my view, work any real difference in the mitigation percentages
the judge applied to his awards for non-pecuniary loss and past wage loss,
particularly when the treatment was said to carry no more than a 50% rate of
success.

Damages Assessment

[30]

The judge awarded the respondent $120,000 for his non-pecuniary loss, $108,500
(less some income he earned to be calculated by counsel) for past wage loss,
$275,000 for loss of earning capacity, special damages to be calculated, and
$2,000 for future counselling costs.

[31]

The defendants contend the awards are to some extent inordinately high
but, for the most part, their contention rests on one or both of the first two
grounds of their appeal succeeding.  They do contend the judge failed to take
into account the possibility that the respondents psoriasis would have
worsened and his psoriatic arthritis would have become symptomatic in any
event.  They also contend that the judge failed to consider the respondents
condition may be expected to improve with the treatment he commenced shortly
before the trial.  But, as noted, the judge specifically said he was taking the
treatment into account in his award for the respondents lost earning capacity
and there is no reason to consider he did not do the same in respect of his
award for non-pecuniary loss.  Further, there is nothing in the amount of the
awards to suggest the judge did not take into account what the respondents
life may have been had he not been injured in the accident in a way that
aggravated the disease he had to the extent it did.

[32]

On the view I take of the first two grounds of appeal, I see no basis on
which to interfere with the judges award of damages.

Disposition

[33]

I would dismiss the appeal.

The Honourable Mr. Justice Lowry

I agree:

The
Honourable Madam Justice Levine

I agree:

The
Honourable Mr. Justice Frankel


