



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Warner v. Cousins,









2014 BCCA 29




Date: 20140128

Docket: CA040476

Between:

Christel Lee
Warner

Appellant

(Plaintiff)

And

Stephen Ward
Cousins and
S.W. Cousins Construction Ltd.

Respondents

(Defendants)




Before:



The Honourable Madam Justice Saunders

The Honourable Madam Justice Levine

The Honourable Mr. Justice Willcock




On appeal from:  An
order of the Supreme Court of British Columbia,
dated November 22, 2012 (
Warner v. Cousins
, 2012 BCSC 1737,
Kamloops Registry No. 45079).




Counsel for the Appellant:



T.L. Robertson, Q.C.
W.S. Taylor
L.N. Martin





Counsel for the Respondent:



G. Ginter





Place and Date of Hearing:



Vancouver, British
  Columbia

September 30, 2013





Place and Date of Judgment:



Vancouver, British Columbia

January 28, 2014









Written Reasons by:





The Honourable Madam Justice Saunders





Concurred in by:





The Honourable Madam Justice Levine





The Honourable Mr. Justice Willcock








Summary:

The appellant appealed from
an award of damages in her personal injury action arising from a motor vehicle
collision. Liability was admitted. The judge stated that mitigation was
considered in assessing damages, but did not describe the scale by which
damages were affected or find the behaviour that amounted to a failure to
mitigate. She found as well that the plaintiff had no ambitions to upgrade
her occupational qualifications. Held: Appeal allowed and a new trial ordered.
The reasons for judgment fatally obscure the scale and basis of the damages
awarded, and the finding of no ambitions was based on assumptions not
supported by the evidence.

Reasons for Judgment of the Honourable
Madam Justice Saunders:

[1]

Ms. Warner suffered injuries to her lower and upper back, her
chest, her neck and her shoulders on January 13, 2009 when a truck driven
by the respondent Stephen Cousins collided with the vehicle she was driving, at
the intersection of 6
th
Avenue and Columbia St., Kamloops, British
Columbia. She commenced an action for damages for personal injury.

[2]

At trial, liability was admitted by Mr. Cousins; the contest
concerned the scale of damages. This depended upon the extent of the injuries
and their long-term effects upon Ms. Warner, both on her need for on-going
care and the limitations that the injuries may place upon her ability to earn
income. Madam Justice Hyslop did not accept Ms. Warners theory of the
scale of damages and, after a seven-day trial, awarded the following damages:




for non-pecuniary damages



$50,000.00





for past wage loss



$58,383.25





for loss of future earning capacity



$40,000.00




[3]

Ms. Warner appeals this award. She contends that errors of fact and
law have led to an award that is significantly lower than it should be. She asks
us to increase damages or, in the alternative, to order a new trial.

[4]

At the time of the accident in January 2009, Ms. Warner was 28
years old and employed by Royal Inland Hospital as a licensed practical nurse
assigned to a surgical ward. On the day of the accident, she was on sick leave
as a result of a snowboarding injury she suffered on December 30, 2008.
She anticipated that the injury would keep her from work for four to six weeks.
However she did not return to work until March 8, 2010, nearly 14 months after
the motor vehicle accident. She attributed the extended absence to the injuries
suffered in the automobile collision.

[5]

Ms. Warner testified that in March 2010, her employer allowed her a
graduated return to work but said she had difficulties assuming her duties on a
consistent basis because of the sequelae of the collision. She testified that employment
restructuring at the hospital and on-going difficulties from her accident injuries
caused her to transfer to a casual position as a licensed practical nurse, which
allowed her greater flexibility in the frequency of her shifts and the types of
work she preferred. Soon after her return to work in 2010, Ms. Warner became
pregnant. She began maternity leave in April 2011. Ms. Warner testified
that her injuries from the accident continued to cause her difficulties at work
up to the time of her maternity leave. The judge noted, however, evidence that
she applied for and was awarded a full-time relief position in March 2011, as
well as a full-time float position in July 2011. As I understand it, Ms. Warner
did not actually fill either of these positions, a result that is not unusual
in the dynamics of staffing the hospital.

[6]

Ms. Warner testified that the injuries suffered in the collision caused
debilitating headaches, social withdrawal, depression and anxiety which prevented
a return to work as a licensed practical nurse on a full-time basis. She also contended
at trial that the injuries prevented her from achieving her ultimate career
goal, that of becoming a registered nurse. Ms. Warner testified that her
scholastic ability would have allowed her to attain that goal, and she
explained that she had become a licensed practical nurse as a first concrete step
in nursing, one that enabled her to earn money before taking the longer, more
expensive, registered nurse program. She testified doing so would allow her a
second year placement in the registered nursing program, that is, she would
obtain some credit for her licensed practical nurse qualification.

[7]

In respect to household duties and other non-work activities,
Ms. Warner testified that for a period of time after the accident she was
unable to perform household activities and for these relied upon her partner.
She said she still had physical limitations that made certain aspects of caring
for her infant son difficult, and that she was unable to participate in many
activities she had enjoyed before the accident. She attributed a diminished
lifestyle to the ongoing effects from the accident.

[8]

The defendants vigorously contested the depth and cause of
Ms. Warners lasting complaints. They said that the physical injuries
suffered by Ms. Warner had resolved relatively quickly, and that she was
fit to work full-time when the return-to-work program at the hospital was
completed. They contested her stated ambition to become a registered nurse, and
disputed her assertions of debilitating migraine headaches caused by the
accident, saying such headaches were consistent with her pre-accident state of
health. They also disputed her alleged inability to engage in certain household
and physical activities, and said further that her claim lacked particulars
that would give it substance.

[9]

As is not uncommon in such cases, expert evidence was adduced from
doctors, a physiotherapist, a massage therapist, a rehabilitation specialist, a
vocational specialist and an economist.

[10]

The judge rejected much of the bases of Ms. Warners claim and
found Ms. Warner lacking in credibility in significant areas of her
testimony. The judge found:

1.       Ms. Warner
was not truthful or had overstated her evidence concerning migraine headaches;

2.       Ms. Warner
had suffered from migraine headaches since her teenage years;

3.       any
headaches Ms. Warner suffered as a result of the accident were cervicogenic
in nature and did not occur very often and if she did have migraine
headaches, they did not increase in frequency as a result of the accident;

4.       Ms. Warner
suffered moderate soft tissue injuries to her neck and shoulders, had some
headaches of a cervicogenic nature, and should have been able to go back to work
full-time when the return-to-work program ended;

5.       Ms. Warner
had no ambitions to become an RN; and

6.       There
was insufficient evidence to find that Ms. Warners day-to-day activities
and social life had been permanently impacted by the accident.

[11]

The judge summarized her conclusions on the injuries in assessing
non-pecuniary damages:

[245]    The injuries suffered by
the plaintiff in this motor vehicle accident consist of moderate soft tissue
damage to her neck and shoulders, a soft tissue contusion to the chest, and a
mild soft tissue injury to the lower back. The latter two resolved themselves
quickly.

[12]

In assessing loss of future earning capacity the judge said in respect
to Ms. Warners evidence she had wished to become a registered nurse:

[193]    If the plaintiff had any serious ambition to enter
the school of nursing, she would likely have made inquiries after the
completion of her LPN course and would have started to complete the
pre-requisites in order to fulfil her ambitions. Instead, she has asked the
court to believe that she started to fulfill this ambition while suffering from
injuries from the motor vehicle accident which she claims have left her
debilitated and unable to work. I do not accept this evidence. Rather, I find
that her online inquiries and enrolling in a biology course were calculated
acts intended to bolster her claim that the motor vehicle accident derailed her
plans to become a RN.

[194]    I find the plaintiff had
no ambitions to become a RN.

And in respect to Ms. Warners ability to work as a
licensed practical nurse she said:

[252]    I found that the
plaintiff was able to work full-time after completing the graduated
return-to-work program. I assess the plaintiffs loss of future earning
capacity as some loss of a capital asset. Therefore, as a result of the
injuries the plaintiff suffered, she may very well from time to time suffer a
future loss of income, despite being able to return to work as a LPN on a full
time basis.

[13]

The judge did not accept the claim for cost of future care. She said:

[257]    The only recommendations that were made for future
care were Botox treatments and perhaps over-the-counter medication and
counselling, the latter of which the plaintiff has resisted. Dr. Robinson gave
evidence as to the cost of Botox. I concluded that the plaintiffs migraine
headaches had not been exacerbated by the motor vehicle accident.

[258]    In order that there be
an award for cost of future care, there must be evidence of such. There is no
evidence here. Accordingly, I do not award anything for cost of future care.

[14]

The judge noted, further, that an argument was made to the effect
Ms. Warner had failed to mitigate her damages. On this, she said, in its
entirety:

[254]    The defendants claim that the plaintiff did not
mitigate her damages by failing and outright refusing to take counselling as
recommended by Drs. Anderson, Boyce, Craig and Lawrence.

[255]    In coming to the awards
given, I have considered any failure to mitigate.

Grounds
of Appeal

[15]

Ms. Warner contends that the judge made palpable and overriding errors
in determining her experience of migraine headaches, in finding that she should
have been able to work full-time after her graduated return to work program
concluded, and in finding that she had no ambitions to become a registered
nurse. She says these errors caused the judge to fail in her analysis and
findings of fact regarding Ms. Warners prognosis. This in turn, she says,
led the judge to assess inordinately low damages for non-pecuniary loss and
loss of earning capacity, and no damages for cost of future care.

[16]

Ms. Warner contends as well that the judge erred in law by failing
to consider material evidence and by failing to apply the correct legal
principles. For example, Ms. Warner complains that the judge referred to a
failure to mitigate without determining whether she had failed to mitigate or
indicating to what degree that factor affected the damages awarded. Last, Ms. Warner
contends that the judge held her to an unreasonably high standard of proof
which resulted in an unfair trial.

[17]

The respondents say that much of Ms. Warners appeal focuses upon
findings of fact that are based upon the judges assessment of credibility and
thus beyond our interference, or that are based upon evidence that was before
the judge and thus beyond our interference. They say the main hurdle Ms. Warner
faced was in persuading the judge that her symptoms not only did not resolve
but had become more debilitating, as she claimed. They say this enquiry put
Ms. Warners credibility to the test, required her to prove that her
ability to function in the work for which she was trained was now beyond her
because of the injuries suffered in the accident, and required her to establish
that other lines of work which she otherwise would have been willing and
capable of performing were not pursued because of those injuries. It is beyond
the role of this court, they say, for us to interfere with the judges
conclusions on these matters.

[18]

As to the scale of damages the respondents contend that the
non-pecuniary damages are within the range reflected in similar cases. They
deny any error of principle or law. Last, they submit that several of
Ms. Warners complaints concern matters on which no evidence was adduced,
or that otherwise simply were not proved.

Discussion

[19]

It is useful to remember, as our starting point on the appeal, that this
court may not interfere lightly with findings of fact. In
Lines v. Gordon
,
2009 BCCA 106, 306 D.L.R. (4
th
) 1, we summarized at para. 8 our
approach on questions of fact, drawn from a long line of cases leading to
Housen
v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235:

Only where there is not a
proper evidentiary foundation for a finding of fact in the sense evidence has
been misapprehended or there is no evidentiary foundation for the finding (a
palpable error), and the error is material to the outcome (overriding), may
this Court interfere.

[20]

The same approach applies to questions of mixed fact and law, but as to
questions of law or principle, we look for correctness:
Housen v. Nikolaisen
.

[21]

The deference accorded the trial court on questions of fact carries over
to the assessment of damages, whether by a judge or a jury. That approach to
damages flows from their character; a damages assessment is by definition a
fact finding exercise. The deferential approach has long been recognized. The
famous statement of our role on assessment of damages in
Nance v. British
Columbia Electric Railway Company Ltd.
, [1951] A.C. 601 at 613-14, [1951] 3
D.L.R. 705 (P.C.), has equal force today:

Whether the
assessment of damages be by a judge or a jury, the appellate court is not
justified in substituting a figure of its own for that awarded below simply
because it would have awarded a different figure if it had tried the case at
first instance.  Even if the tribunal of first instance was a judge sitting
alone, then, before the appellate court can properly intervene, it must be
satisfied either that the judge, in assessing the damages, applied a wrong
principle of law (as by taking into account some irrelevant factor or leaving
out of account some relevant one); or, short of this, that the amount awarded
is either so inordinately  low or so inordinately high that it must be a wholly
erroneous estimate of the damage (
Flint v. Lovell
, [1935] 1 K.B. 354,
approved by the House of Lords in
Davies v. Powell Duffryn Associated
Collieries, Ld.
, [1942] A.C. 601).  The last named case further shows that
when on a proper direction the quantum is ascertained by a jury, the disparity
between the figure at which they have arrived and any figure at which they
could properly have arrived must, to justify correction by a court of appeal,
be even wider than when the figure has been assessed by a judge sitting alone. 
The figure must be wholly out of all proportion (
per
Lord Wright,
Davies
v. Powell Duffryn Associated Collieries, Ld.
, at 616).

[22]

As in challenging findings of fact, Ms. Warner faces a high hurdle
in overcoming the judges view of her credibility, which is particularly within
the purview of the trial judge.

[23]

The classic approach to credibility found in this Provinces
jurisprudence, oft-quoted, was provided by Mr. Justice OHalloran in
Faryna
v. Chorny
, [1952] 2 D.L.R. 354, [1952] 4 W.W.R. 171 (B.C.C.A.) at 357.

In short, the real test of the truth of the story of a
witness in such a case must be its harmony with the preponderance of the
probabilities which a practical and informed person would readily recognize as
reasonable in that place and in those conditions.



The trial Judge ought to go
further and say that evidence of the witness he believes is in accordance with
the preponderance of probabilities in the case and, if his view is to command
confidence, also state his reasons for that conclusion.

[24]

Bearing these principles of deference and the practical considerations
spoken of in
Faryna v. Chorny
in mind, I turn to Ms. Warners
complaints as to the damages awarded. She challenges most particularly three
key conclusions of the judge, the issue of migraine headaches suffered by her,
her fitness to return to full-time work at the hospital at the conclusion of
the return to work program, and the judges conclusion that Ms. Warner
had no ambitions to become a RN. Her submissions on these matters engage the
judges conclusions on credibility and the absence of explanation in the
reasons for judgment for some of the findings, including as to the basis of the
sums awarded.

[25]

For the reasons that follow I respectively conclude that the order must
be set aside.

[26]

Although Ms. Warner raised several areas of complaint, I will
confine my discussion to three areas, the judges treatment of the mitigation
issue, the reasons advanced for finding that Ms. Warner had no ambition to
become a registered nurse, and the absence of an explanation for the bases of
the damages award.

[27]

I will start with what may appear as the tail-end aspect of the reasons
for judgment but which illustrates what I will term an opaqueness within them: the
view taken by the judge on mitigation of damages. The reasons for judgment
recite the defendants contention that Ms. Warners refusal to take
counselling recommended by four doctors, Drs. Anderson, Bryce, Craig and
Lawrence, demonstrated a failure on the part of Ms. Warner to mitigate her
loss. Earlier in the reasons the judge referred to the doctors recommendations
for counselling:

by Dr. Anderson, in 2010:

Dr. Anderson recommended counselling for
anxiety/distress;

by Dr. Bryce, assessment
in November 2009:

He also noted there was a significant psychological
component to her injuries, referring to her nightmares and sleep disturbance.
He recommended psychological counselling, as he believed this would give her
confidence with her expected normal functional and psychological outcome;

by Dr. Craig, assessment on
September 22, 2010:

He wondered whether there was any ongoing anxiety,
and was of the opinion that there should be further treatment and
investigation, including counselling; and

by Dr. Lawrence, psychological
assessment in April 2011:

Ms. Warner could benefit from mental health
treatment from a counsellor, psychologist, and/or psychiatrist with experience
with motor vehicle or work related injuries and chronic pain.

[28]

While it was certainly open to the judge to find that Ms. Warner
did not do all that she could have reasonably done to heal herself, and thus failed
to take reasonable steps to reduce her damages, on my reading the reasons for
judgment do not decide that issue. Further, even if one reads paras. 254 and 255
of the reasons replicated above as finding there was a failure on
Ms. Warners part to mitigate her damages, the effect of those paragraphs
is to obscure the scale of damages found by the judge and to avoid stating what
and when Ms. Warners omissions amounted to an unreasonable failure to
reduce her damages. In other words, those paragraphs do not demonstrate the
full scale of damages and the proportionate effect of the failure to mitigate. To
put it another way, one cannot say from the reasons for judgment whether the
various heads of damages awarded are 100%, 90%, 50% or even 10% of the damages
that would have been awarded absent the mitigation issue. Because the reasons
for judgment cloak the absolute amount of damages suffered by Ms. Warner,
both Ms. Warner and this court are left to wonder whether the judge
concluded, for example, that Ms. Warners injuries impaired her future
earnings and that she could have avoided most of the loss by participating in
counselling, or whether the loss is very near the amount that was assessed and
the failure to take counselling was found to have little impact on recoverable
damages. This obscurity impairs the reviewability of the order, and makes
difficult any appellate check on the scale of damages awarded. The same may be
said of the non-pecuniary damages awarded, and even the past wage loss claim,
as to which the timing of the recommendations for counselling would be
relevant.

[29]

It may be that this cloud over the damages analysis is fatal to the
order. In the words of Mr. Justice Hall in
Pett v. Pett
, 2009 BCCA 232, 93
B.C.L.R. (4
th
) 300 para. 17, there is very little by way of a
road map explaining the judges conclusions on quantum of damages, on the substance
of the failure to mitigate, or on the scale of the consequences of the failure
to mitigate.

[30]

Equally troublesome, in my view, is the judges treatment of
Ms. Warners professed ambition to become a registered nurse.

[31]

The law is clear in regards to assessment of damages for loss of future
earnings. If there is a real and substantial possibility of the future event
leading to an income loss, as contrasted with mere speculation, that
possibility must be taken into consideration in an assessment of damages:
Athey
v. Leonati
, [1996] 3 S.C.R. 458, at para. 27, 140 D.L.R. (4
th
)
235;
Smith v. Knudsen
, 2004 BCCA 613, 247 D.L.R. (4
th
) 256 at
para. 29;
Pett v. Pett
. Against this standard, the judges finding
that Ms. Warner had no ambitions to become a registered nurse is
significant to Ms. Warners claim in respect to lost future earning
capacity. The finding of no ambitions is tantamount to a finding that there
was no substantial possibility of Ms. Warners becoming a registered nurse,
and completely avoided discussion of how likely achievement of that goal was,
the effect of her injuries upon her ability to achieve it, and any other
contingencies that would bear upon that possibility, such as parenting demands.

[32]

The question, then, is whether the judge erred in her conclusion that
Ms. Warner had no ambition to become a registered nurse.

[33]

Acknowledging the deference we must accord to the judges assessment of
credibility of a witness, I respectively consider that the reasons given for
dismissing entirely the career ambition advanced by Ms. Warner rest upon overly
speculative assumptions by the judge. The judge gave two reasons for rejecting
Ms. Warners evidence: first, that had attainment of registered nurse
qualification been Ms. Warners ambition she would likely have made
inquiries after the completion of her LPN course, and, second, that if
Ms. Warner held that ambition she would have started to complete her
prerequisites in order to fulfill her ambitions. One could characterize these
two assumptions as the judge taking judicial notice of invariable behaviour of
a person in the witnesss position. With respect, I do not see either of these
propositions as self-evident, nor in my respectful view do they accord with the
practical circumstances of training in the world of nursing care.
Ms. Warner testified, and there is no reason to disbelieve, that licensed
practical nurses, if admitted to the nursing program, enter the second year,
filling spaces in the program vacated by first year nursing students who have
dropped out. In other words, there is a recognized path to upgrading from a
licensed practical nurse to a registered nurse. I would expect that the
experience of this nursing cross-over and of incremental acquisition of
vocational qualification is well known, if not to the world generally, to those
working side-by-side in health care facilities. Further, I respectfully suggest
that it is not in accord with the preponderance of probabilities that a
practical and informed person would consider investigating the details of a
training program as elemental to an intention to pursue the goal. At most the
absence of investigation establishes that the individual had not moved to an imminent
pursuit of the stated goal.

[34]

Nor, in my respectful view, does the fact that Ms. Warner had not
started any course prerequisite to the registered nursing program lead naturally
to an inference that she did not intend to pursue the program. That fact, on
its own, is equally consistent with her stated plan of working as a licensed
practical nurse for a period of time. The judge did not address that practical
aspect, alone or in the context of the relatively brief time  less than two
years  that she had held her licensed nursing qualification prior to the
accident. Nor, significantly, did the judge recognize that Ms. Warner had
demonstrated ambition to upgrade her qualifications in the past when she left
early childhood education in which she had a diploma, for the program that
qualified her as a licensed practical nurse.

[35]

Last, on the issue of upgrading, the judge found that the enquiries made
after the accident by Ms. Warner into the registered nursing program were
calculated acts to bolster her claim that the motor vehicle accident derailed
her plans to become a RN. At its heart, this is a finding of fraudulent
conduct. On my understanding of the two factors that based the judges
conclusion that Ms. Warner had no ambition to become a registered nurse,
it seems to me that this finding cannot be sustained.

[36]

It may be that even without the assumptions of behaviour of a person
wishing to upgrade a nursing qualification, Ms. Warner may not have established
a substantial possibility she would become a registered nurse. We do not know,
however, absent consideration of Ms. Warners evidence on this matter free
of unsupported assumptions such as are found in the reasons for judgment, how
that question would be resolved. Nor can we discern the impact of the speculation
on the assessment of credibility which founds other conclusions adverse to
Ms. Warner. I conclude that the judges treatment of the evidence relating
to Ms. Warners professed ambition to become a registered nurse seriously
undermines the judgment.

[37]

As a last matter, I would comment on the absence of explanation in the
reasons for judgment for the scale of the non-pecuniary damages and for the
damages for loss of future earning capacity. I have already addressed the
obscurity of these damages caused by the reference to mitigation. Assuming, for
the purposes of this discussion, that the amounts awarded are very near the
absolute loss that the trial judge found Ms. Warner suffered, there are no
findings by the judge on the degree or nature of the loss of enjoyment of life
and loss of amenities that might explain the not insignificant award for
non-pecuniary loss. Nor is there a reference point to explain the fashion in
which Ms. Warners capital asset has been impaired for purposes of the
assessment of future loss. Absent some explanation, even if brief, the case is
like
Pett v. Pett
, with very little of a roadmap.

[38]

I respectfully conclude from these three areas of concern that the order
of the judge must be set aside. While it is within our authority to substitute
an award of damages as was done in
Pett v. Pett,
the issues required to
be decided in this case do not lend themselves to that procedure. In my view
the case should be remitted to the trial court for a new trial.

[39]

I therefore would allow the appeal, set aside the order, and remit the
matter for a new trial. I would leave the issue of costs of the first trial to
be determined on the second trial.

The
Honourable Madam Justice Saunders

I AGREE:

The Honourable Madam Justice
Levine

I AGREE:

The Honourable Mr. Justice
Willcock


