



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Romanchych v. Vallianatos,









2010 BCCA 20




Date: 20100113

Docket:
CA037207

Between:

Deanna
Lynn Romanchych

Respondent

(Plaintiff)

And

Gerassimos
Vallianatos

Appellant

(Defendant)




Before:



The Honourable Mr. Justice Low





The Honourable Mr. Justice Tysoe





The Honourable Madam Justice D. Smith




On
appeal from: Supreme Court of British Columbia, May 20, 2009
(
Romanchych v. Vallianatos
, 2009 BCSC 669, Vancouver Reg. M082429)

Oral Reasons for Judgment




Counsel for the Appellant:



M-H.
  Wright

J.P.C.
  Miller





Counsel for the Respondent:



M.G.
  Bolda

H.S.
  Roesch-West





Place and Date of Hearing:



Vancouver,
  British Columbia

January
  13, 2010





Place and Date of Judgment:



Vancouver,
  British Columbia

January
  13, 2010








[1]

TYSOE J.A.
: The
defendant appeals from the $80,000 damage award made by the trial judge in
respect of loss of future earning capacity resulting from injuries sustained by
the plaintiff in a motor vehicle accident. The judge also made awards for
non-pecuniary damages, damages for cost of future care, damages for past loss
of income and special damages, but none of these awards are challenged on
appeal.

[2]

The accident occurred on July 4, 2006. The
plaintiffs vehicle was struck from behind by the defendants van while the
plaintiff was waiting to merge onto the Alex Fraser Bridge. Liability for the
accident was admitted by the defendant.

[3]

The plaintiff suffered neck and shoulder
injuries with associated headaches. She also subsequently experienced jaw pain
that the trial judge found was caused by the accident.

[4]

The plaintiffs neck and shoulder pain was
severe in the first month following the accident, but she slowly improved until
reaching the level that existed at the time of the trial. On a good day, her
pain was scaled at a level of 2 or 3 out of 10. On a bad day, when her symptoms
were aggravated, her pain was scaled at a level of 4 or 5 out of 10. The
activities that aggravated her symptoms included writing reports, studying,
long hours of computer work, renovation work, carrying heavy objects, driving,
walking for more than 45 minutes and any activity that involved extending her
arms beyond shoulder level.

[5]

The plaintiffs family doctor opined that her
symptoms would be considered to chronic, with a likelihood of less than 10%
that she would become asymptomatic.

[6]

At the time of the accident, the plaintiff was a
student at Simon Fraser University working towards a Bachelor of Science degree
in chemistry, which she obtained in 2008. As part of her studies, she was working
part-time as a co-op student at Cantest Laboratories. She worked as a
laboratory technician performing chemical extractions. This required her to
work with her arms at chest level or higher.

[7]

The accident caused the plaintiff to miss only
two days of work following the accident, but she worked in pain. The plaintiff
left Cantest Laboratories and joined a company called Freybe Gourmet Foods in
April 2007. She left the Cantest job because it was a long commute from her
home to work and the demands of her job aggravated her symptoms and caused
significant pain.

[8]

The plaintiffs position at Freybe was team
leader in quality control. Her degree was not required for the position. The
job did not aggravate her symptoms. Although the plaintiff liked the job at Freybe,
she was a bit bored with it and she expressed concern that it did not utilize
her educational training.

[9]

When the plaintiff left Cantest, she was earning
$13 an hour, which is the equivalent to approximately $27,000 per annum on a
full-time basis. She started at Freybe at a wage of $14 an hour but at the time
of the trial she was earning $18.25 an hour, or approximately $38,000 per annum.
The plaintiff testified that she would have earned $40,000 per annum at Cantest
if she had been promoted to the position of analyst.

[10]

The trial judge first addressed the question of
whether the plaintiffs earning capacity had been impaired to any degree by the
injuries caused by the accident. She referred to
Athey v. Leonati
,
[1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235 at para. 27, for the proposition that
a future or hypothetical possibility will be taken into consideration as long
as it is a real and substantial possibility and not mere speculation. She also
referred to
Sinnott v. Boggs
, 2007 BCCA 267, 69 B.C.L.R. (4th) 276,
which she considered to be of particular assistance because it also involved a
young person not yet settled into a career. The judge concluded that a loss of
future earning capacity had been proven by the plaintiff.

[11]

The judge then addressed the quantum of the
damages and, in that regard, made reference to the considerations set out in
Brown
v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 at para. 8 (S.C.). She referred
generally to the various contingencies and possibilities to be encountered by a
person in the position of the plaintiff and, considering there was a real and
substantial possibility the plaintiff will experience an income shortfall
during the rest of her working career, she fixed the award at the amount of
$80,000.

[12]

The defendant asserts two errors on the part of
the judge. First, he says the judge erred in law or mixed fact and law. Secondly,
he says the judge made a palpable and overriding error of fact.

[13]

The defendant refers to the decision in
Parypa
v. Wickware
, 1999 BCCA 88, 169 D.L.R. (4th) 661 at para. 67 for the
proposition that the judge was required to take into account all substantial
possibilities and give them weight according to their relative likelihood. The
defendant submits the judge committed an error of law or an error of mixed fact
and law because she failed to consider the extent of any real and substantial
possibilities of an actual income loss and to then attribute them weight
according to their relative likelihood. I am not persuaded that the judge made
such an error. The judge was not required to articulate all of the substantial
possibilities and assign a specific weight to them. She was alive to the
existence of contingencies and possibilities, and took them into account when
assessing the damagesw for the impairment to the plaintiffs future earning
capacity. As noted at para. 69 of
Parypa
, the task of the court is to
assess the damages, not calculate them according to a mathematical formula. Although
it may have been preferable for the trial judge to have given a fuller explanation
with respect to her assessment of the damages, it is my opinion that her
reasons as a whole were sufficient in that regard.

[14]

In
Parypa
, Cumming J.A. acknowledged that
the purpose of damages for loss of future earning capacity is to compensate the
injured party for the loss or impairment of a capital asset.
He said the
following:

[63]      ... it is not the lost earnings
themselves that must be compensated, but loss of earning capacity as a capital
asset that requires compensation. There are several cases in this court which
confirm that the capital asset approach is correct:
Earnshaw v.
Despins
(1990), 45 B.C.L.R. (2d) 380;
Palmer v. Goodall
(1991), 53
B.C.L.R. (2d) 44; and
Kwei v. Boisclair
(1991), 60 B.C.L.R. (2d) 393. The
significance of compensating earning capacity as a capital asset as opposed to
projected future earnings is seen in the following passage from
Palmer
,
supra
,
at 59:

Because it is impairment that is being
redressed, even a plaintiff who is apparently going to be able to earn as much
as he could have earned if not injured or who, with retraining, on the balance
of probabilities will be able to do so, is entitled to some compensation for
the impairment. He is entitled to it because for the rest of his life some
occupations will be closed to him and it is impossible to say that over his
working life the impairment will not harm his income earning capacity.

[15]

As Mr. Justice Mackenzie observed in
Sinnott
v. Boggs
at para. 16, the quantification of the loss of future earning
capacity is more at large when the injured plaintiff is a young person who has
not yet established a career. This is in contrast to the situation in
Steward
v. Berezan
, 2007 BCCA 150,
64 B.C.L.R. (4th) 152, where the
plaintiff was near the end of his working career and had no intention of
returning to the trade which he was unable to perform due to his injuries.

[16]

The defendant also relies on the decision in
Mayenburg v. Lu
,
2009 BCSC 1308, where Mr. Justice Myers dismissed a claim for diminished
earning capacity in circumstances where the plaintiff was continuing with her
education. However, unlike the case at bar, there was no evidence in
Mayenburg
to suggest that the plaintiff would be unable to perform the tasks required of
the line of work for which she was being educated.

[17]

In asserting that the judge made a palpable and
overriding error, the defendant says that the judge misapprehended the evidence
in several respects and that this resulted in the judge arriving at an
incorrect damage award for loss of future earning capacity. In my opinion, the
defendant has only identified one factual error made by the judge but it was a
minor error that did not affect the outcome.

[18]

The minor error made by the judge occurred at
para. 81 of her reasons when she stated that [w]hile she currently earns a
dollar more an hour at Freybe than she did as a technician at Cantest, the
plaintiff would have earned more as an analyst at Cantest. It was true that
the plaintiff earned a dollar an hour more when she first joined Freybe, but
she subsequently received one or more pay raises that increased her hourly wage
by $4.25. Hence, it was not accurate to state that the wage differential was
only one dollar an hour at the time of the trial. However, the second part of
the judges statement was accurate because the plaintiffs increased wage at
Freybe was less than the wage the plaintiff testified she would have earned as
an analyst at Cantest. It is my view that the judges error was not overriding
because it was contained in the introductory portion of her statement and did
not affect the point that the judge was making. Her point was that the
plaintiff was earning less at Freybe than she was likely to have been earning
at Cantest, and that was accurate.

[19]

In my opinion, the balance of the
misapprehensions alleged by the defendant are not palpable errors. The
defendant makes arguments with respect to the interpretation of the evidence,
but it was open for the judge to draw the inferences and make the findings of
fact she did.

[20]

As it has not been shown that the judge made any
error of significance, I would dismiss the appeal.

[21]

LOW J.A.
: I
agree.

[22]

D. SMITH J.A.
: I
agree.

[23]

LOW J.A.
: The
appeal is dismissed.

The Honourable Mr. Justice Tysoe


