






Citation:


Schellak 
          v. Barr and Duplessis


Date:
20030102







2003 
          BCCA 5


Docket:


CA029044






COURT 
          OF APPEAL FOR BRITISH COLUMBIA






BETWEEN:






JOYCE MARY SCHELLAK






PLAINTIFF

(RESPONDENT)






AND:






JANICE RAE BARR

and

ANDRE JUAN DUPLESSIS






DEFENDANTS

(APPELLANTS)












Before:


The 
          Honourable Mr. Justice Esson







The 
          Honourable Mr. Justice Donald







The 
          Honourable Mr. Justice Thackray










L.P. 
          Stevens


Counsel 
          for the Appellants




C.R. 
          Temple


Counsel 
          for the Respondent




Place 
          and Date of Hearing:


Vancouver, 
          British Columbia




November 12, 2002




Place 
          and Date of Judgment:


Vancouver, 
          British Columbia




January 2, 2003








Written 
    Reasons by:

The 
    Honourable Mr. Justice Thackray



Concurred 
    in by:

The 
    Honourable Mr. Justice Esson

The 
    Honourable Mr. Justice Donald


Reasons for Judgment of the Honourable 
    Mr. Justice Thackray:




[1]

This case arose out of a motor vehicle accident on 13 March 1998 in 
    which the respondent, Ms. Schellak, was injured.  The trial was heard by a 
    judge alone who awarded damages under several different heads.  The heads 
    of damages that are appealed are non-pecuniary general damages, past income 
    loss and diminution of future earning capacity.

[2]

In reviewing this case I have had more than the usual amount of difficulty 
    in analyzing the evidence.  I will therefore set forth some of the logistics 
    of the trial in that they might account for some of these difficulties.

[3]

The trial commenced on 17 April 2001.  Ms. Schellak, commenced her 
    testimony on 18 April.  Thereafter she testified on 20 April; 23 April (twice); 
    29 April; 2 May; 9 May (twice); 28 May and finally on the last day of the 
    evidentiary portion of the trial, that being 29 May 2001.

[4]

The trial consumed 23 days and stretched from 17 April to 11 June 2001.  
    During the times between the testimony of Ms. Schellak, 31 witnesses testified.  
    In addition, 25 medical-legal reports were filed as exhibits as were reports 
    from an economist and an occupational therapist.  Also filed were medical 
    reports and literature together with documentation in support of the claims 
    for loss of income, both past and prospective.

[5]

To further complicate the trial, there was no clear plaintiffs case 
    or defence case.  The witnesses were apparently called for their availability 
    rather than in any particular order.

[6]

On 21 September the trial judge delivered her reasons for judgment.  
    They reflect the logistical nightmare.  She was faced with a scatter of evidence 
    from which she was expected to come to definitive conclusions on defined heads 
    of damages.

NON-PECUNIARY 
    DAMAGES



[7]

The trial judge awarded Ms. Schellak $80,000 for non-pecuniary general 
    damages.

[8]

Ms. Schellak was 46 years of age at the time of the accident.  She 
    was on her way to work when the collision occurred.  She suffered soft tissue 
    injuries that ordinarily would resolve within a few months.  However, Ms. 
    Schellaks complaints have continued with symptoms that wax and wane and 
    flare up without aggravation.  The trial judge held that it is more likely 
    than not that Mrs. Schellak is a part of the group of about 10% of people 
    who suffer soft tissue injury who do not recover.  She further found that 
    the respondents difficulties were materially contributed to by the motor 
    vehicle accident.

[9]

In analyzing Ms. Schellaks problems, the trial judge noted that she 
    has had a myriad of complaints.  Those complaints being to her jaw, neck, 
    low back and buttocks.  As well as the physical injuries the trial judge said 
    that Ms. Schellak suffered from anxiety and depression and had ongoing cognitive 
    difficulties primarily related to her short-term memory and her ability to 
    concentrate.

[10]

The 
    defence submitted to the trial judge that the plaintiffs case was internally 
    inconsistent.  Further, that there were too many independent experts and 
    that the claim was pursued on too many different medical issues.

[11]

None 
    of these defences prevailed.  With respect to the claim being internally inconsistent, 
    the judge simply disagreed.  She held that Ms. Schellak was suffering from 
    pain but doing her best to cope with it.  The trial judge said that inconsistencies 
    in what the respondent told medical professionals, and inconsistencies in 
    what they observed, are accounted for.  She said inconsistency is inevitable 
    when one speaks to so many people about the same thing and in any event the 
    symptoms themselves were not consistent in that they waxed and waned.

[12]

As 
    to there being too many experts, or, what the appellants defined as claim 
    building at the highest level, the trial judge held that there were specific 
    reasons for the number of experts.  She cited the differences of opinion 
    among the professionals on a number of fronts as to the correct diagnosis 
    and indicated that Ms. Schellak was entitled to know the answer.

[13]

As 
    to the claim being pursued on too many levels the trial judge said:

a plaintiffs counsel has to make a judgment call in cases of this sort, where 
    the defence takes a very firm view that the case is worth hundreds of thousands 
    of dollars less than is alleged, and is prepared to maintain that position 
    throughout.







[14]

At 
    trial the appellants submitted that the credibility of Ms. Schellak was the 
    central issue of the case.  As I see it, this was an appropriate observation 
    in that the matters noted above do not form defences as such.  The most that 
    can be said of these matters is that they go to the issue of credibility, 
    and that issue is reserved for the trial judge who found in favour of Ms. 
    Schellak.

[15]

The 
    appellants submitted in this Court that the trial judges finding of credibility 
    in favour of the respondent does not follow from the evidence.  They point 
    out a number of instances wherein Ms. Schellak did not advise her professional 
    consultants of factors not related to the accident that might have impinged 
    on her health.  The appellants say that rather than being admonished [by 
    the trial judge], the plaintiff benefited from her lack of candour.

[16]

An 
    example is the failure of Ms. Schellak to inform consultants about a drug 
    charge laid against her son.  The trial judge found that the respondent did 
    tip-toe around the truth in this regard and that this cannot be condoned.  
    However, she concluded that in the context of the evidence as a whole, I 
    accept the evidence of Ms. Schellak as to her motivation in protecting Jason 
    [her son].

[17]

Similarly, 
    with respect to not mentioning family stressors, the trial judge considered 
    this in the context of the evidence as a whole and concluded that Ms. Schellak 
    did not mention them because they were not the main factors that were causing 
    her problems.

[18]

The 
    trial judge further evaluated Ms. Schellaks credibility from the standpoint 
    of the evidence regarding her  employment.  The trial judge said that part 
    of the reason I accept her [Ms. Schellaks] evidence is because there was 
    overwhelming evidence that she excelled at her job before the accident.

[19]

There 
    is room at the appellate level to interfere with a trial judges finding as 
    to credibility.  However, to do so there must be a compelling reason arising 
    out of the trial judges analysis.

[20]

In 
    the case at bar the trial judge tested Ms. Schellaks testimony from several 
    different angles.  I am satisfied, to paraphrase Mr. Justice OHalloran in
Faryna v. Chorny
, [1952] 2 D.L.R. 354 (B.C.C.A.), that the trial 
    judges finding of credibility was based not on one element only to the exclusion 
    of others, but was based on all the elements by which it can be tested in 
    the particular case.

[21]

A 
    defence pursued at trial and which forms the main basis for this appeal with 
    respect to non-pecuniary damages, is that of causation.  The appellants submit 
    that events that happened in the respondents life in or about 1999 either 
    broke the chain of causation to the motor vehicle accident or, in themselves, 
    caused the cognitive problems.

[22]

However, 
    the alleged error of the trial judge in finding causation is based upon her 
    finding as to Ms. Schellaks credibility.  The appellants say that in approaching 
    the issue of causation the trial judge relied inappropriately on the plaintiffs 
    subjective evidence.  They refer in particular to the passage from the trial 
    judges reasons that I noted earlier regarding family stressors.

[23]

The 
    appellants submit that this passage represents circular reasoning and suggests 
    that the learned trial judge accepted the plaintiffs subjective view on causation.  
    Further, they submit that the trial judge erred in relying on the plaintiffs 
    strong motivation to return to work.

[24]

To 
    better analyze this submission I would first turn to the trial judges reasons.  
    She detailed the stressors that were put forth by the appellants as intervening 
    causes.  She noted the stroke that had been suffered by Ms. Schellaks mother-in-law 
    in 1999.  Then she acknowledged the problems with Jason, including school 
    withdrawal and a marijuana charge. She also noted that Jasons girlfriend 
    was pregnant and that he and his girlfriend were on social assistance and 
    had moved into the Schellaks home, forcing the Schellaks to move to a condominium.

[25]

The 
    trial judge then noted that the appellants acknowledged that chronic pain 
    can result from soft tissue injuries but relied on family stress as the 
    real causative factor.  She then made specific reference to the submissions 
    of the appellants that the respondent should not be believed and she quoted 
    from the appellants written submission:

It is 
    also now a theory of the defence that the plaintiff and her husband, withheld 
    information relating to their sons use of drugs and multiple unsuccessful 
    attempts to continue his education with the specific intention of hindering 
    this court in its mandate to make findings of fact and assess the claim on 
    a basis that is fair to both parties.







[26]

The 
    trial judge went on to detail the submissions of the appellants and to consider 
    medical and lay evidence applying to the credibility of Ms. Schellak and to 
    the issue of causation.  She said that the evidence of the professionals was 
    of assistance to her in coming to her decision and noted that the decision 
    as to the credibility of the evidence of Mrs. Schellak must be made by the 
    court.

[27]

Madam 
    Justice Martinson, after a further lengthy review of medical evidence, concluded 
    as follows:

[71] 
    The suggestion that Mrs. Schellak has a history of pre-accident difficulties 
    in dealing with stress that makes her particularly vulnerable to stress and 
    depression is not supported by the evidence. All of the non-expert witnesses 
    called who have known Mrs. Schellak for a period of time say she is not a 
    person who has reacted adversely to stress. These witnesses were subjected 
    to lengthy cross-examination. On the contrary, they painted a picture of a 
    person who has at least average coping ability.



[72] 
    While the family stressors relied upon by the defendants were no doubt stressful, 
    especially cumulatively, the only actual evidence I have is that they were 
    not causing significant stress for Mrs. Schellak. Of course, I do not have 
    to take that evidence at face value.  However, the kinds of stress in issue 
    are not stresses that are out of the ordinary for families.



[73] 
    It is true that there were some references in the clinical records to some 
    stress related to marital difficulties and some medical difficulties she had. 
    However, they do not suggest that she had any greater difficulty than the 
    next person in dealing with them. Dr. Taylor, her long time family physician, 
    did not support this suggestion. Mrs. Schellak and her husband Deiter Schellak 
    say it is not true. Friends and co-workers who were questioned on her pre-accident 
    ability to handle stress say that she handled stress well.



[74] 
    The doctors who saw her most often, Dr. Taylor and Dr. Matishak, do not present 
    a picture of someone who was reacting adversely to the stresses of life she 
    was faced with. Rather, they found her behaviour to be consistent with injuries 
    said to be caused by the accident. There is no doubt that it was stressful 
    for her to have unusual shaking and numbness and not know what caused it.



[75] 
    Other medical evidence supports the conclusion that the accident, not family 
    stress, materially contributed to her condition. In Dr. Andersons opinion, 
    Mrs. Schellaks emotional and cognitive difficulties were likely due to the 
    accident. There was no evidence suggesting she would have developed her present 
    constellation of symptoms if she had not been involved in the accident. She 
    did have a prior history of emotional difficulties in the early 1990s, but 
    she was coping well emotionally for several years prior to the accident. She 
    led an active life prior to the accident.



. . .



[87] 
    For all of these reasons I am satisfied that the plaintiff suffers from chronic 
    pain, which causes her functional difficulties, including cognitive difficulties. 
    The difficulties were materially contributed to by the accident:
Athey 
    v. Leonati
, [1996] 3 S.C.R. 458.





[28]

In 
    my opinion there has been no error committed by the trial judge on the issue 
    of causation.  There was evidence before the trial judge upon which she chose 
    to rely and there is no jurisdiction in this Court to say that her reliance 
    was in any way in error.  This includes her reliance on the credibility of 
    Ms. Schellak.

[29]

The 
    appellants further submit that the test in
Yoshikawa v. Yu
[1996] 
    B.C.J. No. 623 (C.A.) has not been met.  The principal issue in that case 
    was the circumstances in which damages should be awarded with respect to chronic 
    benign pain syndrome.  This issue was argued as one of causation and the application 
    of the decision in
Maslen v. Rubenstein
(1993), 83 B.C.L.R. 
    (2d) 131 (C.A.).

[30]

In
Maslen
, Mr. Justice Taylor, for the Court, set forth the matters 
    to be considered in assessing the issue of causation for chronic pain.  The 
    first is that it must be established that the pain is real.  The second is 
    that the plaintiff must establish that his or her psychological problems have 
    their cause in the defendants unlawful act.  The overall test is set forth 
    as follows:

Chronic 
    benign pain syndrome will attract damages  where the plaintiffs condition 
    is caused by the defendant and is not something within her control to prevent. 
    If it is true of a chronic benign pain syndrome, then it will be true also 
    of other psychologically-caused suffering where the psychological mechanism, 
    whatever it is, is beyond the plaintiffs power to control and was set in 
    motion by the defendants fault.







[31]

Mr. 
    Justice Cumming wrote separate reasons, similarly dismissing the appeal on 
    the issue of causation.  Rowles J.A.  also cited
Maslen
with 
    approval.

[32]

Counsel 
    for the appellant on this appeal argues that the following passage from
Maslen
was not met by the trial judge:

Views 
    expressed by doctors on the plaintiffs reliability, truthfulness or motivation 
    cannot be decisive, for the law requires that these matter be decided by the 
    court itself, and that they be decided on the basis of the evidence given 
    at trial, which is often more extensive than, and sometimes different from, 
    that on which medical witnesses have formed their opinions.







[33]

I 
    do not agree that Madam Justice Martinson misapplied any of the points or 
    principles contained in
Maslen
.

As I pointed out earlier, 
    she specifically said that it is for the Court, not the witnesses, to determine 
    issues of credibility.  She also, on several occasions, said that it was in 
    the context of the evidence as a whole that she was making her determinations.

[34]

I 
    do not find any substance in this ground of appeal.  I further find, to paraphrase 
    Cumming J.A. in
Maslen
, that the conclusion of the trial judge 
    that Ms. Schellaks injuries, both physical and cognitive, were causally related 
    to the accident was supported by the evidence, and no basis has been shown 
    for this Courts interference.

[35]

The 
    appellants also submitted that the amount of the damages is in error and should 
    be reduced to a figure of between $30,000 and $40,000.  In support they cited 
    comparable cases.  Those cases are, for the most part, trial court decisions 
    and while there are some similarities in the injuries, they are not comparable.

[36]

Indeed, 
    it is a difficult, if not impossible, to find truly comparable cases.  In
Brisson v. Brisson
2002 BCCA 279

this Court said that 
    precedent cases with respect to damage awards have limited value.  In
Cory 
    v. Marsh
(1993), 77 B.C.L.R. (2d) 248 (C.A.) Mr. Justice Gibbs referred 
    to the inutility of this exercise.  Nevertheless in
Cory
, 
    McEachern C.J.B.C. following
Nance v. B.C. Elec. Ry.
(1951), 
    2 W.W.R. (N.S.) 665, (J.C.P.C.) said that this is the tool that is to be used.  
    In my opinion, the value of such cases is to illustrate the range outside 
    of which this Court may vary the award, either upwards or downwards.  See
Vaillancourt v. Molnar
2002 BCCA 685.

[37]

The 
    test to be applied on an appellate review of damages is as enunciated in
Nance
.  
    Viscount Simon, in giving judgment for the Judicial Committee, said that an 
    award should not be interfered with unless it is either so inordinately low 
    or so inordinately high that it must be a wholly erroneous estimate of the 
    damage.

[38]

It 
    might be said that the award of $80,000 in the case at bar is on the high 
    end of the range, but it cannot be said that it is so inordinately high that 
    this Court is entitled to interfere.

[39]

I 
    would dismiss the appeal of the award for non-pecuniary damages.

PAST 
    LOSS OF INCOME

[40]

The 
    trial judge awarded $120,000 under this head of damages.

[41]

Ms. 
    Schellak testified that her income in 1989 was $12,535, $5,142 in 1990, $2,801 
    in 1991 and $20,876 in 1992.  From tax returns it was established that Ms. 
    Schellaks taxable income was as follows: 1993 - $33,217; 1994 - $18,972; 
    1995 and 1996 (when she was living outside of Canada) - nil; 1997 - $13,109, 
    1998 (2½ months) - $4,953.

[42]

Ms. 
    Schellaks income history can be measured in several different ways.  One 
    is that Ms. Schellaks income from 1989 until the accident averaged $12,118 
    a year.  If the years 1989 to 1992 are excluded, her average income was $13,484 
    a year.  Another way would be to delete 1995 and 1996, years in which there 
    was no income, and arrive at an average income per working year of $15,479.

[43]

This 
    history, in the circumstances of the case at bar, is, in my view, significant.  
    The circumstances being that  Ms. Schellak is not a newly graduated student 
    just entering the workplace nor a young adult entering into a new phase of 
    a career.  We have here a mature adult who had been in the workplace for many 
    years and, at the time of the trial,  within 15 years of a common retirement 
    age.

[44]

While 
    the trial judge alluded in several places in her reasons to evidence bearing 
    on this head of damages, her reasons are confined to the following under the 
    heading PAST WAGE LOSS:

Taking 
    into account the real possibility of benefits, commissions, and base salary 
    increases, as well as negative contingencies, I assess past wage loss at $120,000.









[45]

These 
    brief reasons are not helpful to an understanding of how the award was calculated.

[46]

The 
    appellants submit that there should have been a cut off date in 1999 when 
    the other alleged causes for Ms. Schellaks problems arose.  For the reasons 
    previously given I would reject that ground of appeal.

[47]

Their 
    other submission is that the trial judge based her assessment on the real 
    possibility of income being at a certain level.  The appellants submit that 
    the standard to be met is a balance of probabilities and that the real possibility 
    test is applicable to future events, but does not apply to past loss of income.  
    The appellants are correct in that submission. I find it unnecessary to quote 
    from passages confirming that proposition but for reference will cite
Steenblok 
    v. Funk
[1990], 46 B.C.L.R. (2d) 133 (C.A.) and
Sales v. Clarke
(1998), 57 B.C.L.R. (3d) 36 (C.A.).

[48]

Taking 
    into account that Ms. Schellak earned $7,000 between the accident and the 
    commencement of the trial, the appellants submitted that the award represents 
    an income in excess of $40,000 a year from the date of the accident to the 
    trial.  Indeed, counsel for Ms. Schellak calculated it to be $40,997 a year.  
    This, of course, far outstrips the income earned by Ms. Schellak in any year 
    pre-accident.

[49]

The 
    respondent, not knowing how the award was calculated, submitted that it could 
    be justified by an adoption of the evidence of Mr. Carson, an economist.  
    Mr. Carsons report said that the average income of women in an age bracket 
    similar to that of the respondent and in the respondents field was $49,823 
    a year as of 2001.

[50]

This 
    is not relevant to the period 1998 to 2001.  Furthermore, two witnesses who 
    worked with Ms. Schellak at Labour Ready were called as witnesses by the appellants.  
    They are both employed in the private sector as managers in the personnel 
    industry.  They testified that they were earning between $38,000 and $40,000 
    annually.

[51]

Ms. 
    Schellak had never earned $40,000 in a year and had an employment history 
    that was inconsistent.  Yet the trial judge made an award that exceeded $40,000 
    a year.  This was no doubt because she perceived the test as only one of real 
    possibility rather than on a balance of probabilities.  The latter test, 
    in the circumstances, would necessarily produce a more modest award.

[52]

Counsel 
    for the appellants suggested that a proper award would be $70,000.  This, 
    to me, seems most reasonable and I would make an award for past loss of income 
    at that amount.

LOSS 
    OF FUTURE INCOME EARNING CAPACITY



[53]

The 
    trial judge awarded $570,000 under this head of damages.  In her reasons, 
    under the heading FUTURE EARNING CAPACITY the trial judge indicated that 
    she found the evidence of Mr. Russell McNeil, a registered occupational therapist; 
    Dr. S.D. Anderson, a psychiatrist, Dr. van Rijn, a specialist in physical 
    medicine and Dr. Joy, a psychiatrist, to be particularly helpful.

[54]

The 
    reasons for judgment include a section outlining the challenge that the 
    appellants brought against the income claim.  The trial judge noted that the 
    appellants explored Ms. Schellaks pre-accident work record at length and 
    submitted that it showed that she preferred part-time work and had considered 
    a career change.  They questioned whether she would have been able to cope 
    with the fast paced world of full-time employment.

[55]

The 
    appellants further submitted that the witnesses that were called on behalf 
    of Ms. Schellak, who were all doing well in high paid managerial positions, 
    were not comparable to Ms. Schellak.

[56]

Under 
    the heading DIAGNOSIS AND CAUSATION the trial judge said as follows:

[45] 
    Part of the reason I accept her [Ms. Schellaks] evidence is because there 
    was overwhelming evidence that she excelled at her job before the accident. 
    Her employers Ms. Land and Mr. Cormack described her abilities in glowing 
    terms. That fact that both made numerous efforts to accommodate her after 
    the accident confirms that they considered her to be a highly valued employee. 
    Ms. MacCave, a long time customer, similarly spoke very highly of her abilities. 
    In fact, Ms. MacCave followed Mrs. Schellak when she changed jobs.



[46] 
    The evidence of Ms. Land, Mr. Cormack and Ms. MacCave is important, and not 
    just because it supports the evidence of Mrs. Schellak on the question of 
    her motivation to return to work. Their evidence also confirms that after 
    the accident Mrs. Schellaks ability to perform the job was significantly 
    and adversely affected and continues to be affected.







[57]

Madam 
    Justice Martinson concluded as follows:

[89] In my view, Mrs. Schellak will likely suffer chronic pain indefinitely 
    and she will continue to experience cognitive and functional difficulties 
    that will affect her life generally and her ability to work at a job of her 
    choosing. She will likely only be able to work at part-time sedentary employment.







[58]

Madam 
    Justice Martinson ended her short reasons on this heading as follows:

[104] 
    I accept her evidence that she was at the point where it was her turn when 
    the accident happened. Being successful at her job gave her self-esteem. She 
    would likely have continued working full-time and done well, advancing to 
    a managerial position.

[105] 
    I have considered the evidence that even without the accident she would not 
    have thrived as a permanent placement consultant. In my view, it is likely 
    that she would have done well, given the skills she had acquired and the loyal 
    client base she had developed.



. . .



LOSS OF FUTURE EARNING CAPACITY



[110] 
    I had the benefit of Mr. Nordin and Mr. Carson, a labour economist. I have 
    taken into account the fact that in the permanent placement field, working 
    part-time is not likely an option. I have considered benefits and commissions 
    that Mrs. Schellak is likely to have obtained.



[111] 
    I have considered both positive and negative contingencies and have taken 
    into account a negative contingency reduction of 19%. In particular, I have 
    concluded that there is a real possibility that she will retire at age 63. 
    I assess her award for future earning capacity at $700,000. From that must 
    be deducted an amount for her residual earning capacity. I assess her residual 
    earning capacity at $130,000. She is therefore entitled to an award for loss 
    of future earning capacity of $570,000.







[59]

The 
    respondent submitted on this appeal that the trial judge properly applied 
    the negative contingency at 19%. Counsel went to great lengths in doing mathematical 
    calculations to substantiate that figure.  Whether he is right in that regard 
    I do not know.  I must confess to not understanding what positive and negative 
    contingencies the trial judge considered, what figures she applied to them, 
    and how the mathematics came out at 19%.  This will not bear on my judgment.

[60]

I 
    do accept the respondents submission that while the trial judges assessment 
    of residual earning capacity might be on the low side there is no ground 
    on which this Court could interfere with her assessment.

[61]

The 
    respondent submitted that the trial judge followed the procedure set forth 
    in
Ryder v. Paquette
[1995] B.C.J No. 644 (C.A.).  Mr. Justice 
    Lambert set this out as follows:

The assessment of the loss of income earning capacity involves as the 
    best evidence, as it is in many cases of the loss of income earning capacity, 
    a comparison with what would be likelihoods or possibilities in the future 
    for this young woman if the accident had not happened and comparing them with 
    the likelihoods and possibilities in the future after the accident has happened, 
    and then taking the difference between those two amounts and adjusting it 
    for its present value. That is not the end of the inquiry but it is the best 
    method in many cases of tackling the assessment of the extent to which the 
    capacity to earn income has been effected by the accidents.







[62]

Even 
    accepting that the trial judge adopted the above-noted approach, this does 
    not bear upon the appropriateness of the trial judges introduction into that 
    formula the figures that she chose to use.  Nor, of course, does it bear upon 
    the likelihoods and possibilities for Ms. Schellaks future.  The figures 
    and the likelihoods must arise out of the evidence.

[63]

The 
    appellants submitted that the evidence the trial judge must have relied upon 
    to come to the figures that she did was that of Ms. Land.  Ms. Land is a friend 
    of Ms. Schellak, having met when they both worked for Manpower Temporary Services 
    in about 1992.  Ms. Land is the area manager for the Burnaby and Calgary offices 
    of Coape Staffing Network, a North American firm of personnel placement consultants.  
    She started with that company in 1998.

[64]

Ms. 
    Schellaks evidence is that while with Manpower she was an office manager.  
    There was a commission structure in place but she earned very little by way 
    of commissions.  She resigned and moved to Bradson Personnel in November 1993.  
    In the spring of 1994 she asked to be transferred to the Fraser Valley office.  
    In the summer of 1994 her employment was terminated.  She remained unemployed 
    until December 1994 when she moved to Indonesia where she did not earn income.

[65]

Ms. 
    Land testified that when Ms. Schellak returned from Indonesia in 1996, Ms. 
    Land facilitated her in obtaining employment with Labour Ready.  Ms. Schellak 
    testified that she started in early February 1997 and quit on 18 April 1997.  
    She was not there long enough to earn any commissions.  She was unemployed 
    over the summer of 1997.  She started as a floater with Manpower on 14 September 
    1997.  When the accident occurred on 13 March 1988, Ms. Schellak had a salary 
    of $30,000 a year and was entitled to earn commissions.

[66]

In 
    May 1998, Ms. Schellak returned part-time to Manpower. She worked until June.  
    In May 1998, Ms. Land telephoned Ms. Schellak and asked if she would be interested 
    in going to work for Coape.  Ms. Land had heard from someone at Manpower that 
    Ms. Schellak had been in a car accident but when she spoke with Ms. Schellak 
    she thought that Ms. Schellak was still working.  Ms. Schellak was very interested 
    in the job.

[67]

On 
    2 July 1998, Ms. Land offered Ms. Schellak a position at a salary of $35,000 
    a year.  Ms. Schellak declined the offer but said that she hoped to be able 
    to resume work in a few months.  Ms. Schellak returned to Manpower in November 
    but quit in December.

[68]

On 
    15 December 1999  Ms. Land wrote to Ms. Schellak and offered her employment 
    at $35,000 a year.  Ms. Schellak accepted and commenced work in January 2000.  
    In February she terminated her employment and never returned to that office.  
    Ms. Schellak testified that she did work subsequently for a short time for 
    Manpower and also in the Calgary office of Coape where she had moved due to 
    her husbands employment.

[69]

Ms. 
    Land testified that if all had gone well Ms. Schellak would have received 
    a raise to $40,000 in January 1999.  In the year 2000, the base salary would 
    be the same but Ms. Schellak would have had the opportunity, depending on 
    her sales, of earning bonuses of between $3,500 and $5,000 a month.  Business 
    was slower in 2001 reducing the bonuses to between $2,500 and $3,500 a month.

[70]

Another 
    scenario described by Ms. Land was that Ms. Schellak might have become the 
    manager of a new branch in Langley.  If that occurred, her base salary would 
    have been $50,000 a year plus commissions.  She also spoke of an additional 
    percentage for being a manager of up to $1,500 a month.  Ms. Land also put 
    forth the potential for the base salary going up $5,000 a year to a maximum 
    of $60,000.  The Langley branch never opened.

[71]

Yet 
    another scenario was for Ms. Schellak to become the manager of the Burnaby 
    branch in June, 2000.  The base salary would have been $50,000 rising over 
    two years to $60,000.  There would also have been salary overrides.

[72]

Out 
    of this speculation as to the future, counsel for Ms. Schellak prepared for 
    this Court charts illustrating the potential income range, and suggested that 
    this was the basis for the trial judges assessment of damages.  The mid 
    point in the range in one chart shows income as a placement consultant as 
    follows:

1998

$83,000

1999

$79,000

2000

$91,000

2001

$76,000







[73]

Another 
    chart produced by the respondent shows the income she submits she would have 
    earned as a manager:

1998

$83,000

1999

$79,000 to $91,000

2000

$120,800*

2001

$111,700*



* based upon Ms. Lands income







[74]

In 
    response to these calculations, counsel for the appellants presented his mathematical 
    version of the evidence.  It shows that the award is consistent with a salary 
    of close to $70,000 per annum up to retirement at age 63.  He further submitted 
    that this Court, in assessing the award on the inordinately high test, should 
    find it noteworthy that $70,000 per annum is more than $30,000 higher than 
    the earnings used to compute the award for past wage loss, which in turn was 
    significantly higher than any single year of pre-accident earnings.

[75]

Without 
    accepting any of the above noted figures, what they do illustrate is the disparity 
    between the pre-accident income employment, income history and the award. 
    As this Court noted in
Vaillancourt
, supra, employment history 
    must be considered in assessing a loss of income earning capacity.  These 
    principles can be found in
OBrien (Guardian ad litem of) v.
Anderson
[2000] B.C.J. No. 1747;
Hay v. Hofmann
[1999] B.C.J. 
    No. 77;
Parypa v. Wickware
[1999] B.C.J. No. 270; and
Rosvold 
    v. Dunlop
2001 BCCA 1.  Those cases, and most others involving this 
    form of claim, refer to the same principles and to the same precedent cases, 
    in particular,
Steenblok
, supra, and
Brown v. Golaiy
(1985), 
    26 B.C.L.R. (3d) 353 (S.C.).

[76]

In
Parypa
, Mr. Justice Cumming said that in assessing the loss 
    perhaps the factor most difficult to overlook is the appellants sporadic 
    work history.  He continued as follows:

While past work history is not determinative of what will occur in 
    the future, it is a significant factor to consider when estimating the likelihood 
    of what would have happened in the future but for the accident.





[77]

In 
    the case at bar, Mr. Derek Nordin, a vocational rehabilitation consultant, 
    called as a witness by the respondent, agreed that a persons employment history 
    is generally very important in projecting what might happen in the persons 
    future employment.

[78]

As 
    an illustration of how far removed the award is from the lengthy track record, 
    I note that the residual earning capacity figure of $130,000 as found by the 
    trial judge is about what Ms. Schellak earned as an average in the ten years 
    preceding the accident.  The award, for the 13 year period to retirement, 
    exceeds that by $570,000.

[79]

The 
    trial judge set the future earning capacity figure at $700,000.  She did not 
    explain how she arrived at this figure and whether capitalization was applied.  
    The evidence of Mr. Carson, an expert witness called on behalf of Ms. Schellak, 
    was that if Ms. Schellak had earned the industry average until retirement 
    at age 63, and if she had no residual earnings, a claim for lost earnings 
    would be in the amount of $507,700.  After deducting contingencies and adding 
    benefits he arrived at a present value figure of $500,000.

[80]

Counsel 
    for the appellants thereby submitted that the trial judge, in coming to a 
    figure of $700,000, must have assumed that the plaintiffs earnings would 
    have exceeded the industry average quite substantially."

[81]

I 
    find considerable weight in this argument.  I similarly find substance in 
    the appellants submission that the evidence does not support a finding that 
    Ms. Schellak would have been a top earner in the personnel field.  As pointed 
    out by the appellants, at the time of the accident Ms. Schellak had not so 
    established herself and her track record mitigated against her ever doing 
    so.

[82]

I 
    would in many circumstances say that the figure suggested by Mr. Carson, that 
    being a net of $370,000, would be appropriate.  However, his figure uses the 
    industry average, a figure that does not conform with either the evidence 
    of witnesses of comparable employment to that of Ms. Schellak or with the 
    employment history of Ms. Schellak.

[83]

The 
    appellants submit that the trial judge arrived at an uninjured earning capacity 
    that was inordinately high.  I agree with that submission.  It is often said 
    in making assessments for this head of damage that mathematical precision 
    is neither possible nor even desirable.  That is certainly the situation in 
    the case at bar.

[84]

On 
    the basis of the evidence, the principles of assessment, and that the trial 
    judge was of the opinion that Ms. Schellak was bound to do well in the future, 
    I would award  $300,000 to Ms. Schellak under this head of damages.

SUMMARY



[85]

I 
    would dismiss the appeal on the issue of non-pecuniary damages.  The award 
    of $80,000 is, in my opinion, within the appropriate range.  I would allow 
    the appeal of the award of  $120,000 for past loss of income and substitute 
    a figure of $70,000.  I would also allow the appeal of the award for loss 
    of future income earning capacity.  For the trial judges award of $570,000, 
    I would award $300,000.



The 
    Honourable Mr. Justice Thackray









I AGREE:







The Honourable Mr. 
    Justice Esson









I AGREE:







The Honourable Mr. 
    Justice Donald




