



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Loyola 
          v. Loyola,







2009 
          BCCA 20



Date: 20090119

Docket: CA035720

Between:

Concepcion 
    Loyola

Respondent

(
Plaintiff
)

And

Jamie 
    Anglo Loyola

Appellant

(
Defendant
)




Before:


The 
          Honourable Mr. Justice K. Smith




The 
          Honourable Mr. Justice Lowry




The 
          Honourable Madam Justice Neilson



Oral Reasons for Judgment




J. 
          Marquardt


Counsel for the Appellant




Y.S. 
          Wong

M.P. 
          Maryn


Counsel for the Respondent




Place 
          and Date:


Vancouver, British Columbia




19 January 2009





[1]

K. SMITH J.A.
: Before us are an appeal and a cross-appeal from a judgment 
    for damages for loss and injury suffered by the respondent as a result of 
    an automobile accident on 20 September 2001.

[2]

The respondent was a front seat passenger in an automobile driven by 
    the appellant, her husband, which collided with the rear of another automobile 
    and pushed it into a third.  She suffered injury from the collision itself 
    and from the airbag in her vehicle which suddenly inflated in front of her 
    and struck her in the face.

[3]

Following a three week trial before the Honourable Mr. Justice Sigardson 
    and a jury in which liability for the accident was admitted, judgment was 
    granted for the respondent for damages assessed by the jury as follows:

Non-pecuniary damages        $194,000

Special damages                    $745

Past loss of income                $6,000

Total                                      
      $200,745

[4]

The jury assessed no damages for future loss or diminution of earning 
    capacity or for cost of future care, although the respondent claimed damages 
    under those heads.

[5]

The appellant submits the jury committed palpable and overriding error.  
    In his submission, the award of $194,000 for non-pecuniary damages is wholly 
    out of proportion to the evidence, is inordinately high, and is inconsistent 
    with the jurys refusal to award damages for future losses.  He seeks an order 
    setting aside the award for non-pecuniary damages and either substituting 
    an award of between $75,000 and $90,000 or remitting this head of damages 
    to the trial judge for assessment.

[6]

The respondent contends the award for non-pecuniary damages is warranted 
    on the evidence and the jury made no error in their assessment under this 
    head of damages.  On her cross-appeal, she submits the jury erred in failing 
    to assess any damages for future loss of earning capacity and cost of future 
    care and asks us to award a modest sum for a loss of opportunity to earn income 
    in future and about $124,000 for costs of future of care.

[7]

The respondent was a homemaker and a nanny.  She was 48 years old at 
    the time of the accident.  She suffered from chronic low back pain before 
    the accident as a result of an injury she suffered more than 20 years earlier.  
    She claimed the accident aggravated her symptoms from that condition and, 
    as well, that it caused soft tissue injuries to her neck, back and other parts 
    of her body that, in turn, caused her pain that was constant and had become 
    chronic by the time of trial five years later.  Further, she claimed the accident 
    caused her mild traumatic brain injury and post-concussion syndrome that resulted 
    in depression, anxiety and cognitive problems including difficulties with 
    her memory.

[8]

It was her position that these conditions were permanent and that she 
    requires treatment for her psychological conditions and for her chronic pain.  
    She claimed the effects of her injuries have changed her from a happy, sociable, 
    independent and active woman to one who is depressed and irritable and unable 
    to do the things she did before, requiring assistance even with mundane day-to-day 
    tasks.

[9]

She claimed she had worked gainfully in the past, that she confined 
    her work to babysitting while she raised her three children, and that she 
    would have returned to the workforce before the trial but for her injuries.  
    She claimed the injuries have rendered her competitively unemployable.

[10]

There was expert and lay evidence led at the trial that, if accepted 
    by the jury, would have supported the respondents claims and a substantial 
    award of non-pecuniary damages along with awards for past loss earnings, future 
    loss of earning capacity, and cost of future care.  We were referred, during 
    submissions this morning, to cases that would support an award of $75,000 
    to $90,000 or as much as $200,000, depending on what view the jury took of 
    the nature and extent of the respondents injuries.

[11]

The appellants position at trial was that the respondent lacked credibility.  
    He argued that the doctors who saw her after 2004, which included virtually 
    all of the medical specialists who diagnosed mild traumatic brain injury and 
    psychological injury, relied on her reports of symptoms, for their diagnoses 
    and prognoses, and that to that extent their opinions were not reliable.  
    He urged the jury to rely on the respondents complaints to her family doctor 
    in the months immediately following the accident.  He noted that there was 
    no diagnosis of concussion or brain injury during those early months and that 
    her first report of complaints to a doctor that would support such a diagnosis 
    were not recorded until August 2004.  He submitted the respondent had proven 
    only soft tissue injuries and injuries to her face and that she had completely 
    recovered from these injuries within about three months of the accident.

[12]

He argued she had not proven she was unable to work as a babysitter 
    after the accident, and that there should be no award for past wage loss.  
    He submitted, as well, that no diminution in the respondents earning capacity 
    had been proven.  Further, he submitted, many of the items claimed for cost 
    of future care related to her pre-existing back condition and were unrelated 
    to the accident.  The balance, he argued, were largely related to treatment 
    for the consequences of post-concussion syndrome which, in his submission, 
    had not been proven.

[13]

Accordingly, he urged the jury to assess no damages for cost of future 
    care.

[14]

There were frailties in the respondents evidence that could have led 
    to the jury to conclude she was not a credible witness and that her complaints 
    could not be relied upon.  Thus, it was open to jury on the evidence to accept 
    the picture painted for them by defence counsel.

[15]

The difficulty on this appeal is that both sides say the jury erred.  
    If, as the appellant contends, the refusal to assess any damages for future 
    diminished earning capacity and future cost of care indicates that the jury 
    accepted the appellants submission that the respondent suffered only minor 
    injuries with short term consequences, the award of $194,000 for non-pecuniary 
    damages was clearly inordinately high and should be set aside.

[16]

On the other hand, if the jury accepted the respondents evidence that 
    she suffered mild traumatic brain injury and post-concussion syndrome and 
    was left with chronic pain and permanent psychological problems that have 
    rendered her unemployable and which require future treatment, which the award 
    of non-pecuniary damages and, to some extent, the award of past loss of income 
    would signify, the jury clearly erred in failing to assess any damages for 
    future diminished earning capacity and cost of future care.

[17]

Without weighing the evidence or speculating as to what evidence the 
    jury accepted, which we cannot do, I am quite unable to determine where the 
    jurys error lies.  Regrettably, I see no alternative except to allow the 
    appeal and the cross-appeal and to remit the assessment of damages to the 
    Supreme Court for a new trial.

[18]

I would so order.

[19]

LOWRY J.A.
: I agree.

[20]

NEILSON J.A.
: I agree.

[21]

K. SMITH J.A.
: The appeal and the cross-appeal are allowed.  The appellant 
    will have the costs of the appeal.  The respondent will have the costs of 
    the cross-appeal.  The costs of the trial and the new trial will be for the 
    Supreme Court.

The Honourable 
    Mr. Justice K. Smith


