



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Peters 
          v. Kay,







2006 
          BCCA 42



Date: 20060127





Docket: CA032295

Between:

Harry 
    Thomas Peters

Respondent

(
Plaintiff
)

And

Aran 
    Serenity Kay, John Kay and

Ellen 
    Van Stolk

Appellants

(
Defendants
)












Before:


The 
          Honourable Madam Justice Ryan




The 
          Honourable Mr. Justice Mackenzie




The 
          Honourable Madam Justice Kirkpatrick



Oral Reasons for Judgment




A.M. 
          Mersey


Counsel for the Appellant




T.R. 
          Berger, Q.C.

P. Dosanjh


Counsel for the Respondent




Place 
          and Date:


Vancouver, British Columbia




27 January 2006





[1]

RYAN, J.A.
:  The respondent, Dr. Peters, is a family 
    physician who was injured in a motor vehicle accident on 10 May 1997.  
    Liability was admitted by the defendants at trial.

[2]

The trial judge, Madam Justice Gill, found that the accident caused 
    a disk herniation in the respondents lower back at L5 including an annular 
    tear.  At trial the respondent continued to suffer from the residual effects 
    of his injuries.  The prognosis was that while other soft tissue injuries 
    suffered in the accident had healed, the herniated disk would not likely improve 
    much further.

[3]

The judgment of Madam Justice Gill assessing damages was pronounced 
    1 September 2004, and entered 20 October 2004.  It provided:

a.         Non-pecuniary loss                                                        
    $   80,000.00

b.         Pass loss of income                                                      
    $ 184,000.00

c.         Future loss of income
$ 450,000.00

TOTAL                                                                           
    $ 714,000.00

[4]

The grounds of appeal as stated by the appellants are the following:

I.          
    It is respectfully submitted that the learned trial judge erred in her assessment 
    of the Plaintiff's non-pecuniary damages, resulting in an award that is inordinately 
    high.

II.          
    It is respectfully submitted that the learned trial judge erred in her assessment 
    of the Plaintiff's loss of past earnings or earning capacity, by taking into 
    account irrelevant factors and failing to take into account relevant factors.

III.         
    It is respectfully submitted that the learned trial judge erred in her assessment 
    of the Plaintiff's loss of future earnings or earning capacity, by taking 
    into account irrelevant factors and failing to take into account relevant 
    factors.

We have heard extensive argument and reply on all of 
    these grounds.  In my view there was evidence to support the conclusions of 
    the trial judge.

[5]

In spite of the very able efforts of Mr. Mersey, I am inclined 
    to accept the view of Mr. Berger:  that as developed this appeal amounts 
    to an effort to re-try this case.

[6]

We are all of the view that the trial judge did not err in law or in 
    fact in any way which would permit this Court to intervene.

[7]

I would dismiss this appeal.

[8]

MACKENZIE, J.A.
:  I agree.

[9]

KIRKPATRICK, J.A.
:  I agree.

[10]

RYAN, J.A.
:  The appeal is dismissed.

The Honourable Madam Justice Ryan




