



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Mazur v. Lucas,









2014 BCCA 19




Date: 20140121

Docket: CA039410

Between:

Dianne Mazur

Appellant

(Plaintiff)

And

Lawrence Lucas,
Primus Automotive Financial

Services Canada
Company, Compagne de

Services de
Financement Automobile Primus

Canada and Jon
Haddon Moss

Respondents

(Defendants)




Before:



The Honourable Mr. Justice Groberman

The Honourable Madam Justice MacKenzie

The Honourable Madam Justice Stromberg-Stein




On appeal from:  An
order of the Supreme Court of British Columbia, dated September 19, 2011 (
Mazur
v. Lucas
, 2011 BCSC 1685, Vancouver Docket M073918).




Counsel for the Appellant:



D.W. Lahay





Counsel for the Respondent:



A.M. Gunn, Q.C.





Place and Date of Hearing:



Vancouver, British
  Columbia

November 20, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 21, 2014









Written Reasons by:





The Honourable Madam Justice Stromberg-Stein





Concurred in by:





The Honourable Mr. Justice Groberman

The Honourable Madam Justice MacKenzie




Summary:

The appeal is from a jury
award of damages for injuries in a motor vehicle. The grounds of appeal allege
improper cross-examination of a witness; misdirection on loss of future earning
capacity; inconsistent verdicts for past and future earning capacity; and the
length of jury deliberations. The respondents cross-appeal with respect to an
order requiring them to pay the trial costs.
Held
: The appeal and
cross-appeal are dismissed.

Reasons for Judgment of the
Honourable Madam Justice Stromberg-Stein:

Overview

[1]

On March 10, 2006, Dianne Mazur was injured in a car accident. The
respondents admit liability and admit that Ms. Mazurs soft tissue injuries
developed into pain disorder. The issue at trial was the assessment of damages,
particularly with respect to income loss.

[2]

At the time of the accident Ms. Mazur was 52 years old. She had worked
as a legal secretary at Clark Wilson LLP from 1979 until August 29, 2005, when
she took a disability leave of absence. Ms. Mazur maintains she planned to
return to Clark Wilson and work until retirement at age 65 or 70, but due to
the accident she never returned to work and it is unlikely she ever will.

[3]

A key issue at trial was the extent to which the car accident reduced
Ms. Mazurs ability to work and caused her past income loss and/or loss of
future earning capacity, or whether these losses could be attributed to her
pre-existing conditions. Ms. Mazur had a history of depression, anxiety, and
panic attacks, as well as workplace, personal and family stress, culminating in
her taking a leave of absence three days after her on-again, off-again,
bipolar, alcoholic, then-boyfriends attempted suicide. The factual finding
regarding causation would impact all of the heads of damages.

[4]

In addition to causation, there were issues of failure to mitigate (
failure to become more active,
continue to exercise, lose weight, quit smoking, participate in volunteer
activities, and get appropriate psychiatric treatment to address her pain
disorder),
and credibility (failure to disclose her attempted suicide at
age 17, surveillance videos suggesting she may be exaggerating her level of
pain and disability, and inconsistent self-reports to various health care
providers).

[5]

Ms. Mazurs yearly income, had she returned to Clark Wilson, would have
been approximately $68,000. The total potential income loss for the years 2006
through to the date of the trial in 2011 was calculated by an economist to be
in excess of $334,000. Ms. Mazurs potential loss of future earning capacity
was estimated in the range of $410,000 to $664,000, depending on when she would
have retired.

[6]

There have been two jury trials. Both parties issued jury notices. The
first jury award was overturned on appeal. This is an appeal from the second
jury award.

Procedural History

[7]

The first jury trial took place from October 13 to 29, 2009, following
Ms. Mazurs rejection of the respondents $60,000 offer to settle. After
deliberating for more than a day, the jury awarded Ms. Mazur damages as
follows:

a)

Non-pecuniary
loss           
$   55,000

b)

Past loss of
income           $ 145,000

c)

Future loss of income        $
307,000

d)

Special
damages              
$     3,400

e)

Future care
costs             
$     8,000

The total award after deductions
was $506,062.81.

[8]

The respondents appealed on the basis that hearsay evidence contained in
several expert reports was withheld from the jury. More specifically, in his
medical report, Dr. OShaughnessy, a psychiatrist who testified on Ms. Mazurs
behalf, referred to opinions from Dr. Gibson, Ms. Mazurs treating
psychiatrist, and Dr. Solomons, a psychiatrist who examined her at the
request of her disability insurer. As Dr. Gibson and Dr. Solomons were not
being called as witnesses, the judge redacted any reference to their opinions
and prohibited the respondents from cross-examining Dr. OShaughnessy on their
opinions. This Court found this was an error that resulted in pivotal evidence
being withheld from the jury:
Mazur v. Lucas
, 2010 BCCA 473 (
Mazur
v. Lucas
). This Court concluded the jury was left with a potentially
distorted and incomplete picture of the expert evidence. This amounted to a
substantial wrong or miscarriage of justice because a jury apprised of all of
the relevant information might very well have arrived at a different verdict:
para. 51. This Court ordered a new trial, leaving the issue of costs to the
discretion of the second trial judge.

[9]

On 17 August 2011, between the first and second trial, the respondents
made a settlement offer of $300,000, plus costs. Ms. Mazurs counter offer for
$600,000 was rejected by the respondents.

[10]

At the second trial, held August 29 to September 19, 2011, the
jury awarded Ms. Mazur damages as follows:

a)

Non-pecuniary
loss            $ 
25,000

b)

Past loss of
income           $ 
53,000

c)

Future loss of income       
$        0.0

d)

Special
damages              
$    6,000

e)

Future care
costs             
$        0.0

The total award before deductions was $84,000. While all
components of the award were lower, the most significant difference was that
the second jury awarded nothing for future income loss
[1]
.

Issues on Appeal

[11]

Ms. Mazur appeals the jurys damages award from the second trial. She
seeks a new trial based on the following grounds:

1.

The cross-examination of Nadia Morrison, the Director of Human Resources
at Clark Wilson LLP, included improper questioning that was not cured by the
trial judges charge;

2.

The trial judge misdirected the jury on loss of future earning capacity;

3.

The jury award for past and future earning capacity is inconsistent; and

4.

The
jurys deliberations were too short to properly consider the evidence.

[12]

The respondents cross-appeal with respect to the order requiring them
to pay costs for the second trial.

[13]

For the reasons that follow, I would dismiss both Ms. Mazurs appeal and
the respondents cross-appeal.

Position of the
Parties

Ms. Mazurs
Position

[14]

Ms. Mazur maintains the second trial proceeded largely in the same
manner as the first trial. In her written submissions to this Court, Ms. Mazur
delineates the differences between the first and second trials as follows:

There were some differences between the first and second
trials.  For example, in the second trial although counsel for the
Defendant chose not to cross-examine Dr. OShaughnessy with respect to Dr.
Solomons opinion, the Defendant called Dr. Solomons to testify. 
But, as noted by Madam Justice Humphries, Dr. Solomons provided an opinion
for Ms. Mazurs employers insurance plan and played a limited role early
in the history of Ms. Mazurs psychological treatment. 
Dr. Solomons said that Ms. Mazur had no disabling psychiatric
condition when he saw her (on September 5, 2007), but he was not asked to deal
with the motor vehicle accident and did not give an opinion on Pain
Disorder.  The Pain Disorder was a central, and undisputed, issue in this
action.



In addition to calling Dr. Solomons to testify, in the second
trial, the Defendant also tendered expert reports from Dr. Werry, an
orthopaedic surgeon and Dr. Prout, a neurologist.  Orthopaedic and
neurological injuries were not at issue in this trial.  None of the
defendants orthopaedic or neurological experts could, or did, opine on the
central issue of this case, which was [Ms. Mazurs] Pain Disorder.

[15]

Ms. Mazur submits this Court overturned the first jury verdict on the
basis that medical opinions supporting her case were not put before the jury.
The new witnesses called by the respondents added nothing to the central issue
of the trial, which was whether Ms. Mazurs pain disorder affected her ability
to work, both in the past and in the future. She argues the dramatic variation
in the jury awards can only be explained by the respondents prejudicial
cross-examination of Ms. Morrison and/or by judicial error with respect to the
instruction on loss of future earning capacity. In addition, Ms. Mazur
maintains the jury verdict is inconsistent because the jury determined she
would have returned to work at some point, as evidenced by their award for past
income loss, but then failed to make an award for loss of future earning
capacity.  Further, given the short time the jury deliberated, the jury
could not have considered all the evidence.

The Respondents
Position

[16]

The respondents take issue with Ms. Mazurs characterization of the
differences between the first and second trials. In their written submissions
they delineate the differences between the two trials as follows:

[T]he second trial did not proceed in largely the same way
as the first. A number of matters unfolded differently at the second trial:

(a)       
[Ms. Mazur] called two additional experts to testify who did not testify at the
first trial: Dr. Anne Parker (psychiatrist) and Cynthia Morin
(an occupational therapist whose report, if accepted, would have greatly
increased [Ms. Mazurs] entitlement for cost of future care);

(b)       
the Defendants called three additional experts to testify who did not testify
at the first trial: Dr. Solomons (psychiatrist), Dr. Alister Prout
(neurologist), and Dr. Donald Werry (orthopaedic surgeon);

(c)       
the Defendants called Drs. Philip Teal and Prout to testify that [Ms. Mazurs]
carpal tunnel syndrome was unassociated with the Accident, and after their
testimony [Ms. Mazur] dropped this element of her claim;

(d)       
the Defendants called Dr. Werry in order to rule out any potential physical
causes of [Ms. Mazur] pain disorder and leave only psychiatric causes;

(e)       
although Dr. Solomons assessed [Ms. Mazur] for her employers insurance plan,
and therefore played a more limited role than other experts in [Ms. Mazurs]
care, he obtained important facts from [Ms. Mazur] relating to her original
position that supported the Defendants position on causation;

(f)        
because of the change in strategy in calling Dr. Solomons to testify at the
second trial, it was no longer necessary to ask Dr. OShaughnessy more than
limited questions in cross-examination about Dr. Solomons opinion;

(g)       
in cross-examination the Defendants were able for the first time to ask
Dr. OShaughnessy about the opinions of Drs. Solomons, Gibson, and
Borkenhagen;

(h)       
the Defendants were able to conduct much fuller cross-examinations of the lay
and expert witnesses due to there no longer being a restriction on questions relating
to hearsay evidence;

(i)        
[Ms. Mazurs] cross-examination at the second trial was different due to the
expert reports no longer being redacted as well as changes in [Ms. Mazurs] own
testimony; and

(j)         because
[Ms. Mazur] did not attend the St. Pauls Hospital Pain Clinic until after the
first trial, this evidence was received for the first time at the second trial.

[17]

The respondents take the position that the quantum verdict merely
demonstrates that the jury resolved causation against Ms. Mazur, finding she

would not have returned to work, regardless of the accident. The
respondents submit there was ample evidence to support rejecting Ms. Mazurs
claim for future loss of income earning capacity, such as Ms. Mazurs
pre-existing depression, anxiety, personal stresses, and work-place conflicts.
Additionally, the jury was entitled to reduce any award based on her failure to
mitigate her losses, as Ms. Mazur did not attempt to return to work or address
the health issues resulting from her inactive lifestyle and smoking.

[18]

The respondents argue in any event, the jury charge, taken as a whole,
reveals no misdirection and Ms. Mazurs counsel did not object to the jury
instructions at trial. The respondents maintain the quantum verdicts are not
inconsistent, and the duration of the jurys deliberations provides no basis
for appellate intervention
.

Analysis

1.      
Cross-examination of Nadia Morrison

[19]

Ms. Morrison, Clark Wilsons Human Resources manager, testified about
Ms. Mazurs excellent work performance as well as some challenges she had
adjusting to working with different lawyers. Ms. Morrison testified about
the circumstances leading up to Ms. Mazur taking a leave of absence. She
described significant improvement in Ms. Mazurs mood prior to the accident and
expected Ms. Mazur would eventually return to work.

[20]

The respondents trial counsel sought to impugn Ms. Morrisons credibility
by attempting to elicit evidence of bias, suggesting Ms. Mazurs working
conditions at Clark Wilson contributed to her stress, anxiety and depression
prior to the accident.

[21]

The respondents cross-examination opened by noting that Ms. Mazur was
being represented by a lawyer from Clark Wilson. The respondents counsel put
the suggestion to Ms. Morrison that personal injury cases are generally dealt
with by contingency fee agreements and that Clark Wilson possibly stood to gain
from any award Ms. Mazur received. Ms. Morrison stated she had no knowledge of
the fee arrangement. Ms. Mazurs counsel did not object to this line of
questioning and even re-examined the witness in this area.

[22]

After the witness and the jury were excused, Ms. Mazurs counsel
asserted the questions were improper, suggesting counsel was insinuating that
Ms. Morrisons testimony was influenced by the likelihood that her firm
had a financial interest in the outcome of the trial.  He asked the judge
to tell the jury to disregard this evidence in her charge. Counsel did not make
a mistrial application.

[23]

In her final charge to the jury, the trial judge referenced the
cross-examination of Ms. Morrison and  instructed the jury as follows:

The defendants say there is
reason for Ms. Morrison to be biased in her evidence.  I should note,
however, that while it is entirely up to you to decide if you thought Ms.
Morrison had any reason to be biased in her evidence, that not only is there no
evidence to support a suggestion that the law firm of Clark Wilson might
benefit from this lawsuit, such a consideration is not relevant to your
deliberations.  I do not believe [counsel for the respondent] was
suggesting through her questions that you should draw such an inference. 
She was merely reciting a number of factors that you might properly consider as
to bias.  In any event, such a consideration, that is, whether Clark
Wilson might benefit from this lawsuit, is irrelevant to your considerations.

[24]

There was no objection to this instruction. However, on appeal, Ms.
Mazur submits this instruction was ambiguous, confusing and insufficient. She
contends that the comments resulted in placing an irrelevant and highly
prejudicial notion in the minds of the jury that any award would benefit Ms.
Mazurs lawyer.  Ms. Mazur believes the jury was influenced by the
suggestion that the law firm stood to gain financially.

[25]

I agree with the respondents that the questions put to Ms. Morrison on
cross-examination appropriately probed any potential bias arising out of her
dual role as a witness from the law firm employing Ms. Mazur and as a
management employee of the law firm representing Ms. Mazur.
The cross-examination of a witness
with respect to potential bias is a legitimate subject of questioning.

[26]

The judges instructions were straightforward and correct in law. She
properly left the jury with the task of evaluating Ms. Morrisons evidence and,
in particular, of assessing whether her interest in portraying her firm in a
favourable light compromised her objectivity. The judge also explained to the
jury that there was no evidence to suggest that Clark Wilson had a pecuniary
interest in the outcome of the case and, in any event, no basis on which it
could find that any such interest might have influenced Ms. Morrisons
testimony.

[27]

I am of the view that the impugned instructions were comprehensible and
unobjectionable. I am strengthened in this view by the fact that the appellants
trial counsel raised no objection to them. Counsel was in a good position to
assess the adequacy of the instructions in the context of the evidence and of
the charge as a whole, and his failure to object is, in my opinion, telling. I
would not accede to this ground of appeal.

2.      
Jury instruction on loss of future earning capacity

[28]

Ms. Mazur asserts the
trial judge misstated the criteria for determining loss of future earning
capacity, leading the jurors to believe they could not make an award for loss
of future earning capacity unless they found she would return to her legal
secretary job.

[29]

The respondents say Ms.
Mazur is focussing on a single sentence but that the charge, taken as a whole,
contains no misdirection. In any event, there was no evidence to support the
possibility Ms. Mazur would have pursued any other employment than full-time
legal secretarial work at Clark Wilson.

[30]

The judge instructed the jury on loss of future earning capacity as
follows:

Now we move on to future lossThe plaintiff is seeking to be
compensated for the loss of a capital asset, namely, her ability to earn income
in the future. This is a capital asset that every person is presumed to have in
the law, an ability to earn income. The plaintiff says she would have been
able to earn income in the future if the accident had not occurred, and as a
consequence of the injuries she suffered as a result of the accident she will
be unable to earn income in the future. As you know, the defendants' position
is that the plaintiff is unemployable, but that is not the fault of the
defendants. The plaintiff would never have returned to work anyway
regardless of the accident because of her pre-existing depression, anxiety, and
panic attacks and her inability to cope with work stresses.

Since this is a future loss or a hypothetical event, the
standard of proof is not a balance of probabilities.  You must assess the
possibility that a particular event would have occurred or not
occurred. If you find that an event is a real possibility and not merely
guesswork, you must express that possibility in your award. This is a
matter of looking into the future and nothing can be certain.
You must
assess the likelihood of Ms. Mazur continuing in her full-time legal assistant
job if the accident had not happened, and you must also determine the age at
which she would likely retire.
Once again, you must take into account
the contingencies of life that make such losses uncertain: lay-offs,
unrelated illnesses, other hardships of life, as well as positive contingencies
such as promotions or raises in pay.

The plaintiff submits that Ms. Mazur's loss can be approached
mathematically, that is, by taking the figure Ms. Mazur should have been
earning in 2011, which Mr. Lahay calculated under the previous heading at
$68,000, deciding how long she would have continued to work into the future,
for instance, age 65, and obtaining a lump sum at present value using Mr.
Carson's multiplier at Exhibit 5, Tab 7. That is, for age 65 the
multiplier is 6.016 and for age 70 the multiplier is 9.763.



Despite the mathematical approach suggested to you by the
plaintiff, I am sure you realize this cannot be a precise calculation. You
are gazing into a crystal ball. You are making the best and fairest
determination you can on the basis of the evidence you have heard. You are
required to arrive at a present value lump sum figure which will fairly and
reasonably compensate Ms. Mazur for future financial loss which you find has
been caused by the accident. As with all of your awards for damages, the
award must be fair and reasonable to both parties. Future losses are not
subject to deduction for tax, unlike the past losses.

I am just thinking that if you do
have difficulty with the present value tables and you just want to come up with
a raw figure that counsel can apply the present value tables to, that is
another way of approaching it, but I must know that is what you did. So I
have to know whether you are applying the tables or not. So, as I say, please,
if you have any questions at all about this aspect of it, please clarify them
in a question and give it to the sheriff.

[31]

Ms. Mazur raised no objection to this aspect of the jury charge either
on review of the written draft charge or after the judges delivery of the oral
charge. Her failure to object is a significant factor for consideration on
appeal.

[32]

The judges charge should be considered in light of the closing
submissions of both counsel. Ms. Mazurs counsel made the following submissions
to the jury:

Future loss
of earnings. This is quite different, quite different in a couple
of respects. Our courts regard your capacity to work and earn an
income as a capital asset, something you are born with. If you impair
that capital [asset] you are entitled to be compensated.
We dont
have to show Dianne was prevented from working at Clark Wilson, we have to
show her capital asset was impaired, and there's no question it has been.
Once
we show that, she is entitled to be compensated for the impairment of that
capital asset.
So my friend may say, well, you have to be able to prove
she would go back to Clark Wilson. We don't have to. We have to
show that her ability to work has been impaired. That in and of itself
gave rise to her right to compensation.


As another
important distinction between past and future income we only have to show a
significant possibility, we don't have to show a balance of probabilities, so
the standard of proof is lower.

So we say the loss of income going into the
future would be 68,000 a year. That was
the last year that Dianne would have been earning income, thats the rate
it would have been this year, so she's losing $68,000 a year for as long as
you decide she would have continued working. Now, this is where
it gets a little bit trickier. You may or may not have heard of the
time value of money.
Keep in mind your job is to put Dianne
in the same position she would have been in, which means she would
have been working at Clark Wilson
, she would have earned $68,000 this
year, some figure the year after that and some figure the year after that, she
wouldn't get it all today. You can't do that. You have to award a
lump sum. That means you have to award her money she would earn into
the future...



[W]e say there's no
reason to conclude Dianne would work till
65, we say she would have stayed there as long as Clark Wilson would
have her, to use her words,
and you heard lots of evidence about other long-term employees of
Clark Wilson, one of whom, Marcel Meyer, is 70 years of age, still
working, no plan to retire.

Now, I'm not
going to ask you to take into account what society does these days, take into
account the evidence in this trial.
Dianne has told you work was
central to her life, it was her identity. She planned to stay there
as long as Clark Wilson would have her and she said she was happy when the
legislation came in that prevented employers from firing people at 65, or
terminating their employment. I say it's reasonable to conclude Dianne
would have worked to age 70
...



Now, my friend is going to argue that you
should apply negative contingencies to these
figures, you should conclude that Dianne's future at
Clark Wilson
would
have been spotty. Well, I'm going to tell you to keep in mind the 26 years
leading up to the accident which were spotless. My friend is going to say no,
you should conclude that there would be problems after she returned to
work. Those are the negative contingencies. What you may do is you
may conclude, and there's no specific science for this, we don't consider
damages to be a mathematical calculation. When you have lots of evidence
it makes it easier and you can do kind of a calculation, but when you don't
have as much information as we do have here, you do what's called an
assessment. So there's no specific science to this. When you
calculate the future loss of income and you have a range that I've given you,
anywhere from 410 to 665, you can conclude, because we don't know, that if we
think there may have been problems with Dianne returning to work or if she
may have had to take time off from work from time to time, you can apply a
discount. You can say, well, I think there's a 10 percent chance or a 15
percent chance or a 20 percent chance and you can discount the figure by that
percentage.

Essentially what my friend is going to argue
when it comes down to it is all right, the pain disorder may be a factor, but
we say there were other factors, and what we call that is apportionment of
damages. So you get to say, well, I think the pain disorder is 90 percent
of it, the other factors may have caused Dianne to be off work 10 percent of
the time and that's how you arrive at these figures, so you get to decide
those things. My submission is that I think given Dianne's history, given
the evidence you've heard, given the fact that she is being treated for
depression and is not likely to have a recurrence, apply these contingencies
they should be
very modest to the figures that I've provided you.

[33]

Thus, counsel emphasized that the issue was not whether Ms. Mazur would
have returned to work at Clark Wilson had the accident not occurred, but rather
whether she had a capacity to earn money that was diminished as a result of the
accident. That said, counsel recognized that the evidence did not point to any
likely source of income other than employment at Clark Wilson, and made
specific submissions on the likelihood that the plaintiff would have returned
to that employment.

[34]

Ms. Mazurs counsel properly addressed the jury on the legal test for
determining entitlement for loss of future earning capacity. He stated
correctly that the question was whether there was a significant possibility
that Ms. Mazurs pain disorder impaired her ability to work; and so long as the
jury concluded that but for the accident Ms. Mazur could have worked, she was
entitled to some form of compensation for loss of future earning capacity. He
also noted that the jury had the ability to apportion that loss between the
pain disorder and Ms. Mazurs pre-existing conditions.

[35]

The defendants submissions to the jury on loss of earning capacity were
as follows:

Now we will
move on to future lossThe plaintiff is seeking to be compensated for the loss
of a capital asset, namely, her ability to earn income in the future. This is a
capital asset that every person is presumed to have in the law, an ability to
earn income. The plaintiff says she would have been able to earn
income in the future if the accident had not occurred, and as a
consequence of the injuries she suffered as a result of the
accident she will be unable to earn income in the future. As you
know, the defendants' position is that the plaintiff is unemployable, but
that is not the fault of the defendants. The plaintiff
would never have returned to work anyway regardless of the accident
because of her pre-existing depression, anxiety, and panic attacks and
her inability to cope with work stresses.

Since this
is a future loss or a hypothetical event, the standard of proof is not a
balance of probabilities.  You must assess the possibility that
a particular event would have occurred or not occurred. If you find that
an event is a real possibility and not merely guesswork, you must express
that possibility in your award. This is a matter of looking into the
future and nothing can be certain. You must assess the likelihood of
Ms. Mazur continuing in her full-time legal assistant job if the accident had
not happened, and you must also determine the age at which she would
likely retire. Once again, you must take into account the contingencies of
life that make such losses uncertain: lay-offs, unrelated illnesses, other
hardships of life, as well as positive contingencies such as promotions or
raises in pay.



Despite the mathematical approach
suggested to you by the plaintiff, I am sure you realize this cannot
be a precise calculation. You are gazing into a crystal
ball. You are making the best and fairest determination you can on
the basis of the evidence you have heard. You are required to arrive at a
present value lump sum figure which will fairly and reasonably compensate
Ms. Mazur for future financial loss which you find has been caused by the
accident. As with all of your awards for damages, the award must be
fair and reasonable to both parties

[36]

The respondents counsel encouraged the jury to adopt the very line of
reasoning the judge erroneously incorporated into her charge. Counsel
emphasized sections of Ms. Mazurs doctors and therapists reports that
discussed her feelings of being overwhelmed working for multiple lawyers at
Clark Wilson, her reluctance to return based on her feelings of failure, and
the interpersonal conflicts she faced there. These remarks related to the
question of whether Ms. Mazur would have returned to work at Clark Wilson, and
not necessarily whether her pain disorder impaired her ability to return to
work more generally.

[37]

I agree with Ms. Mazur that this statement in the charge to the jury is
clearly wrong. The issue before the jury was not whether Ms. Mazur would have
returned to her position at Clark Wilson, although that consideration would
have informed their analysis. Given that the respondents admitted the accident
caused Ms. Mazurs pain disorder, the jury should have been directed to assess,
in a general way, whether the pain disorder would have impacted her ability to
earn an income in the future. Instead, the jury was told to consider whether
Ms. Mazur would have returned to her position at Clark Wilson.

[38]

The proper test for determining loss of future earning capacity is
whether there has been a loss of capacity that deserves to be compensated:
Perren
v. Lalari
, 2010 BCCA 140 at para. 12.

[39]

The question on this appeal, therefore, is whether this error could have
had any practical impact on the jurys award; that is, whether this
misdirection resulted in a substantial wrong or miscarriage of justice because
a jury apprised of all the relevant information might very well have arrived at
a different verdict:
Mazur v. Lucas
at para. 51. If the error could not
have had such an impact, the misdirection was harmless, and did not result in
any injustice.

[40]

In assessing the impact of the misdirection, the charge must be considered
as a whole and in conjunction with the entirety of the evidence and the jury
addresses of counsel:
Lennox v. New Westminster (City)
, 2011 BCCA 182 at
para. 25, leave to appeal refd, [2011] S.C.C.A. No. 257.

[41]

For the reasons dealt with below, I find that the error did not amount
to a substantial wrong or miscarriage of justice because a properly instructed
jury would not have arrived at a different verdict. There was no objection to
the charge at trial when timely
intervention would have permitted the trial judge to take corrective steps.
Counsels inaction supports the presumption that the instruction could not have
been seriously misleading or unfair, leading to an injustice.

Nature of the Error

[42]

As this Court noted in the first appeal of this case, a new trial is an
extraordinary remedy and should only be granted when the interests of justice
plainly require it. Additionally, this Court noted that [a]n appellant cannot
ask for a new trial as a matter of right on a ground of misdirection or other
error in the course of the trial when no objection was made in respect of the
matter at trial:
Mazur v. Lucas
at para 45, citing
Arland and Arland
v. Taylor
, [1955] 3 D.L.R. 358 (Ont. C.A.).

[43]

The onus is on Ms. Mazur to demonstrate that the judges misdirection
amounted to a substantial wrong or miscarriage of justice, warranting a new
trial.

[44]

Appellate review of civil jury instructions will focus on the charge as
a whole. Even if one statement within a charge amounts to a misdirection, it
is the charge as a whole that must be considered to determine whether the
misdirection may have misled the jury or whether the issues were placed before
it fairly:
Alden v. Spooner
, 2002 BCCA 592 at para. 20, leave to appeal
refd, [2002] S.C.C.A. No. 535.

[45]

The jurisprudence supports two approaches for determining loss of future
earning capacity. The first comes from
Steenblok v. Funk
(1990), 46
B.C.L.R. (2d) 133 (C.A.), and was later termed the real possibility approach
by Finch J.A. (as he then was) in
Pallos v. Insurance Corp. of British
Columbia
(1995), 100 B.C.L.R. (2d) 260, 53 B.C.A.C. 310, or the
mathematical approach. This approach is most appropriate where a plaintiffs
loss of future earning capacity can be easily quantified and was the approach
Ms. Mazur advocated for at trial.

[46]

The second approach, is the capital asset approach from
Brown v.
Golaiy
(1985), 26 B.C.L.R. (3d) 353 (S.C.). This approach is useful where
the future is harder to determine. It guides the trier of fact to consider the
consequences of an injury as an impairment of a capital asset. When determining
how to quantify the value of that impairment,
Brown
proposed that the
trier of fact consider whether:

1.         The
plaintiff has been rendered less capable overall from earning income from all
types of employment;

2.         The
plaintiff is less marketable or attractive as an employee to potential
employers;

3.         The
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and

4.        
The plaintiff is less valuable to himself as a person capable of earning income
in a competitive labour market.

[47]

Regardless of the approach, there was no onus on Ms. Mazur to prove that
she would have returned to her job at Clark Wilson. However, mere speculation
of future loss of earning capacity is insufficient to justify damages, and
[a] plaintiff must
always
prove that there is a real and substantial
possibility of a future event leading to an income loss:
Perren
at
para. 32. This standard of a real and substantial possibility is lower than a
balance of probabilities but higher than mere speculation:
Athey v. Leonati,
[1996] 3 S.C.R. 458 at para. 27.

[48]

The trial judge erred in her instruction to the jury insofar as she made
it seem that Ms. Mazurs right to compensation for future loss of income was
tied specifically to her returning to Clark Wilson, rather than returning to
any form of employment. However, there was still a burden on Ms. Mazur to
establish her loss, which would have required the jury to find that, but for
the accident, she would have gone back to some form of employment.

Did the Error
Impact the Verdict?

[49]

As stated above, the key issue on this appeal is whether the
misdirection amounted to a substantial wrong or miscarriage of justice. Given
the nature of this issue, it is helpful to review Ms. Mazurs evidence and the
medical evidence regarding her ability to return to work. Eleven medical
experts testified at the trial. The jury heard evidence from three orthopaedic
surgeons who concluded that there was no identifiable connection between Ms.
Mazurs pain symptoms and any physical injury. Two neurologists also testified;
one of which
testified that he
could not identify a
neurological basis for Ms. Mazurs pain. The jury
heard from three psychiatric experts as well as Ms. Mazurs treating
psychiatrist, each of whom gave a different account of the causes of Ms.
Mazurs disability and whether she would have returned to work. Additionally,
Ms. Mazurs general practitioner and a rehabilitation consultant were called
upon to testify.

[50]

The respondents submit that the jury refused to compensate Ms. Mazur for
a loss of future earning capacity because it accepted that Ms. Mazur was
unemployable at the time of the accident, as supported by the medical evidence.
Alternatively, the respondents submit the jury was entitled to reduce her claim
on the basis that she failed to mitigate her losses. However, Ms. Mazur asserts
this does not accord with the jurys decision to award her some past loss of
income.

[51]

Before turning to the evidence, I note that Ms. Mazurs credibility was
likely a troublesome issue for the jury. Her testimony was, at times, confused,
vague and inconsistent. For example, during her cross-examination she was
adamant that her job was not a significant stressor in her life prior to her
leave of absence in 2005. This contradicted the accounts she provided during
each of her medical examinations as well as statements she made under oath in
her first trial. On my review of the record, Ms. Mazurs testimony likely
offered very little assistance to the jury.

[52]

Ms. Mazur testified she would have gone back to work in April 2006 after
finishing a group therapy session at Peace Arch. She told the jury that she
missed the routine of work and would have stayed at Clark Wilson until she
retired at the age of 65 or 70.

[53]

Ms. Mazur testified that she was prepared to go back to work on January
23, 2006, however she seemed confused by the questioning and could have meant
that she was, at that date, anticipating a
future
return to work. A
claim that she was able to return to work in January of 2006 was not supported
by the expert evidence. Her family doctor at the time, Dr. Borkenhagen, made
the following note on January 23, 2006: Re return to work. Memory, focus,
concentration, all still shot. A report dated January 25, 2006 for her
disability insurance set out the basis for her claim as [e]xtreme anxiety and
frequent panic attacks beginning August 29
th
, 05.

[54]

There
was also extensive evidence that prior to Ms. Mazurs leave of absence she was
having work conflicts and difficulties. In October of 2003 she filled out a
health-related questionnaire indicating the major stress in her life was
work. Outside of the courtroom she admitted feeling constantly overwhelmed
by the workload. Ms. Mazur acknowledged she had conflicts while working for a
junior lawyer and felt she had failed as a result of that experience. She was
rejected for a pay increase and an opportunity to work for a senior lawyer.
There was evidence from Ms. Morrison that Ms. Mazur had been referred to a
counselor through work on August 20, 2005, prior to her boyfriends suicide
attempt, although Ms. Mazur denied this at trial.

[55]

Ms. Mazur filled out a form in June of 2008 stating, [w]ith the
exception of poor concentration and memory I do feel I could do most parts of
my regular work if there wasnt so many demands of my time and the time
constraints imposed by the lawyers I work with.  She felt overwhelmed and
guilty turning down work.  She acknowledged that the poor concentration
and memory were problems before the accident. She told Dr. Parker, her treating
psychiatrist, that she wondered how much of her pain was stress-related or
psychosomatic. Her migraines appeared to be largely caused by work or social
stress, as they stopped when she stopped working.

[56]

The respondents challenged Ms. Mazurs assertions that she would return
to work by seeking to demonstrate that Ms. Mazurs depression was a
long-standing issue that had come to a head prior to the accident and was the
source of her ongoing disability, not any injury attributable to the accident.
They sought to portray Ms. Mazur as extremely unhappy at her job, thereby
impugning the credibility of her claim that she was actively trying to return
to work prior to the accident.

[57]

To support their claims, the respondents noted that Ms. Mazur met with
Cynthia Morin, a vocational rehabilitation expert, in November 2008. They
discussed the prospect of her returning to work part-time or doing legal
transcription work from home. She never asked Clark Wilson for different work
or any accommodation. She did not look for any work based on the
recommendations of the vocational rehabilitation expert.

[58]

The respondents also pointed to the medical evidence to support their
claim that Ms. Mazurs pre-existing mood disorders were preventing her from
returning to work, not the accident.

[59]

Roughly five weeks after the accident, Dr. Wilson, Ms. Mazurs general
practitioner, completed an assessment and concluded it was unknown when she
would return to work due to a current pre-existing disability. At trial he
stated that he was not treating her for any psychological conditions so the
details of the stressors in her life were not his primary focus, but he did
note in December of 2007 that she was unhappy about returning to work. Dr.
Wilson wrote a letter to Ms. Mazurs insurance company in September 2008
stating her depression was still preventing her from returning to work.

[60]

Dr. Randall Locht, an
orthopaedic surgeon, submitted a report dated June 30, 2008, at the request of
Ms. Mazurs disability insurer. He assessed Ms. Mazurs neck and back pain. He
wrote in his 2008 report 
[t]he musculoskeletal neurological assessment
cannot identify any other organic
conditions complicating Ms. Mazur's recovery and preventing her from returning
to productive employment... psychosocial factors complicating Ms. Mazur's
recovery is beyond my level of expertise. He found she had no physical pain
preventing her from working and recommended that she return to work. He
testified at trial that [i]t's well known that a lot of patients with neck and
back pain problems, one of the main -- and -- and why they're off work -- is
because of their dissatisfaction with work.

[61]

Dr. Ollie Sovio, a
second orthopaedic surgeon, assessed Ms. Mazur and submitted a report dated
January 27, 2009. He testified that her complaints of physical pain did not
match the findings of his examination. He thought her failure to return to work
could be attributed to 
[n]on-physical factors, whether they be
psychiatric
problems, [or]
whether they be other factors such as secondary gain issues, described as
being the avoidance of unpleasant surroundings, meaning work return. Dr.
Sovio
could not 
assign
the disability to any physical injury and was at a loss to recommend any
further physical treatment or investigation.

[62]

Dr.
Donald Werry, the third
orthopaedic
surgeon, assessed Ms. Mazur in May 2011. He
concluded that any
soft tissue injury Ms. Mazur may
have suffered in her neck and low back from the accident likely healed within
three to six months.

[63]

Dr. Phillip Teal, who practices
emergency medicine and neurology, prepared a report in April 2009. He
attributed Ms. Mazurs hand pain to carpal tunnel syndrome, not the accident.
This finding was supported by Dr. Alister Prout, the second neurologist who assessed
Ms. Mazur. Dr. Teals prognosis was that Ms. Mazur should be able to
return to work as a legal secretary within six months, but considered her time
on long-term disability to be a complicating factor because it was evidence
of a pre-existing problem. He testified: I
couldn't find adequate
physical
explanations,
neurologic or -- or physical or musculoskeletal explanations for her
pain  I have to think that psychological factors are probably playing a
major component here rather than the physical issues.

[64]

Dr.
Kevin
Solomons
was a psychiatrist who examined Ms. Mazur at the request of her disability
insurer. He has extensive experience treating mood disorders. He believed that
Ms. Mazurs work conflicts were at least partially responsible for her taking
the stress leave. He noted in his report that she resented her employer. He
found that her personality traits, which led to her taking a leave, were likely
still part of her reasons for not returning to work. He recommended in his
report that [i]n the absence of a psychiatric illness that prevents her
working she would be able to return to work soon with some accommodation from
her employer. He included in his report that since her mood had improved in
January 2006, her reluctance to return to work was probably due to secondary
factors, such as conflicts at work. Dr. Solomons did not think Ms. Mazurs
depression was debilitating her from working in 2006.

[65]

The jury also heard from Dr. Anne Parker, the
psychiatrist who b
egan treating Ms.
Mazur in October 2008 after her former psychiatrist, Dr. Gibson, retired.
Dr. Parkers evidence was likely given little weight by the jury, as it
contradicted evidence from other experts in two important areas. First, Dr.
Parker gave evidence that 
Dianne
loved her work. It was a huge part of her life
. However, these remarks
were
not corroborated by any
of the other doctors who assessed Ms. Mazur for the trial
. Her report
did not contain any references to statements Ms. Mazur made elsewhere about feeling
overwhelmed. On cross-examination, Dr. Parker resiled from her report on the
question of whether Ms. Mazur would ever return to work.
Second,
Dr. Parker
put in her report that [t]here
has
been no evidence of
any depression
whatsoever
since at least July 2009, which again contradicted every other medical report
and, to some extent, Ms. Mazurs own testimony (emphasis added).

[66]

Ms. Mazur asserts on appeal that this expert evidence was not relevant
to the main issue of her claim: the extent to which her pain disorder was the
cause of her ongoing disability. Pain disorder is a psychiatric condition that
does not necessarily have a physical explanation. The key experts to the appeal
were the psychiatrists called to testify about this condition; specifically,
Dr. Roy OShaughnessy for Ms. Mazur, and Dr. Paul Janke for the
defendants.

[67]

Dr. OShaughnessy assessed Ms. Mazur on May 22, 2008, and again on
January 12, 2011.
Dr. Janke
assessed Ms. Mazur in April 2009.

[68]

On my review of the evidence, Dr. OShaughnessy and Dr. Janke agreed on
many things. They agreed Ms. Mazur had obsessive compulsive personality traits
that made her more likely to develop anxiety and depression. They agreed that
the stress from Ms. Mazurs personal, family, and work conflicts all
contributed to the onset of her depression in 2005. They agreed Ms. Mazur was
clinically depressed and had anxiety at the time of the accident and that this
made her vulnerable to developing the pain disorder. They agreed she had a pain
disorder and that it was the result of her depression combined with her
injuries from the accident. They agreed that, by 2009, her depression was in
remission, although they disagreed as to the extent of that remission.

[69]

The primary disagreement between Dr. OShaughnessy and Dr. Janke was
with regard to the nature of her pain disorder as it related to her depression,
or, in other words, the nature of Ms. Mazurs original position.

[70]

Dr. OShaughnessy described Ms. Mazurs pain disorder as being distinct
and separate from her depression (although he admitted they are related and can
have overlapping symptoms). He testified that Ms. Mazurs depression was in
remission when he assessed her in 2008, therefore it was the pain disorder (not
the depression) that continued to disable Ms. Mazur.
He explained that the pain experienced with
pain disorders is real in a subjective sense but it is hard to measure
objectively.
In 2008,
Ms.
Mazur had developed an obsessional pre-occupation with her pain
.
By 2008, Ms. Mazur

was experiencing a lot of pain fear,
pain avoidance. She had become very passive, not doing anything for fear of
pain.  That led to further deconditions which itself aggravates the pain
.

[71]

To put it another way, Dr. OShaughnessy seemed to be saying that at the
time of the accident Ms. Mazur had a treatable form of depression. The accident
resulted in a pain disorder, which had not been successfully treated. But for the
accident, Ms. Mazurs depression would be in remission and she would have been
able to return to work. The pain disorder is a new condition and it is
responsible for her ongoing disability.

[72]

Dr. Janke appeared to consider Ms. Mazurs pain disorder and depression
to be different sides of the same coin. He described Ms. Mazurs depression as
being the consequence of years of maladaptive personality traits and
interpersonal problems that had never been resolved. While her depression
resulted in a pain disorder (and became the focus of Ms. Mazurs treatment), he
believed that even without the pain disorder, Ms. Mazur would still be
disabled. Her symptoms had not changed after the accident (she continued to
lack focus, struggle with memory, and be socially isolated) and she still had 
profound complaints about depressed
mood
. The difference was that she was blaming her pain rather than her
depression.

[73]

Dr. Janke was critical of Ms. Mazurs non-disclosure of her suicide
attempt when she was 17; the duration and quantity of medications she was
taking for physical pain and anxiety; the reasons she left her volunteer work
(feeling overwhelmed and undervalued); and her discontinuation of her exercise
programs. On Dr. Jankes account, Ms. Mazurs ongoing disability was the result
of her original position -- her
personality
structure of
obsessive compulsive tendencies, a
self-centered nature, and problems with
interpersonal relationships --
because none of the factors that caused
her depression had been resolved.

[74]

Given these differences in Dr. OShaughnessy and Dr. Jankes account of
Ms. Mazurs pain disorder, the question as to whether Ms. Mazur would have
returned to work, but for the accident, was left for the jury to determine. As
the summary above demonstrates, there was a substantial amount of evidence to
support a jury finding that Ms. Mazur was unemployable at the time of the
accident, and her pre-existing conditions accounted for her ongoing disability.

[75]

The trial judges instruction to the jury that they had to assess the
likelihood of Ms. Mazur continuing her full-time legal secretary job at Clarke
Wilson was clearly erroneous and, in isolation, would be cause for ordering a
new trial. However, on this appeal, Ms. Mazur is focussing on a single sentence
in the jury charge, which taken as a whole involved no other misdirection. I
agree with the respondents that, in the context of all of the evidence and the
charge as a whole, the impact of the error was harmless. Furthermore, her
counsel did not object to the wording of the charge, even though he was given
the opportunity to comment on it before it was delivered. This indicates that
the error was not considered to be egregious at the time.

[76]

The onus was on Ms. Mazur to prove her case. With regard to her claim
for loss of future earning capacity, that meant proving that she would have
returned to some form of employment.
There
was no evidence of any real possibility that Ms. Mazur would have pursued
any employment other than legal secretarial work. Indeed, Ms. Mazurs own
submissions were that, but for the accident, she would have returned to Clark
Wilson
. The fact that Ms. Mazur did not allude to, let alone establish
the possibility of, returning to some other employment other than her legal
secretary position
likely
explains why the trial judge made the comment she did.


[77]

The jury was told to compensate Ms. Mazur for the loss of a capital
asset if there was a possibility her injuries impaired her ability to earn
income. There was ample medical evidence to suggest that Ms. Mazurs
pre-existing conditions were preventing her from returning to work, not
anything attributable to the accident. This was a finding the jury was
rightfully invited to make.

[78]

In my view there is no basis for appellate intervention on grounds of
misdirection and I would dismiss this ground of appeal.

3.      
Inconsistency in quantum

[79]

Ms. Mazur maintains the
damage award is inconsistent because the jury awarded her $53,000 for past wage
loss, and nothing for loss of future income earning capacity. She argues the
jury was not entitled to find that she would have returned to work, but for the
accident, while also finding that her pre-accident condition would have
prevented her from working after the trial.

[80]

The respondents assert
the verdict is supported by the jurys belief that, but for the accident, Ms.
Mazurs pre-accident condition would have permitted her to work only a short
time (six to 12 months) or that she would have chosen not to work to avoid the
recurrence of depression.

[81]

The respondents also
point to concerns with Ms. Mazurs credibility and her failure to mitigate her
loss as possible explanations for an award for past wage loss but not future
loss of income earning capacity.

[82]

The assessment of damages
is within the purview of the jury. This Court will be reluctant to interfere
with a jury award in the absence of
finding that the verdict is
plainly unreasonable or unsupported by the evidence. That cannot be said in
this case where, understandably, the jury was struggling with Ms. Mazurs
credibility and related concerns. Additionally, t
his quantum is also consistent with the evidence from the
orthopaedic surgeons, who believed her physical injuries would have healed
within three to six months.

[83]

In my view this argument does not form a basis for appellate
intervention. I would dismiss this ground of appeal.

4.      
Duration of jury deliberations

[84]

The jury deliberated from
3:10 pm to 6:12 pm on September 19, 2011, before returning with an award of
$84,000. Ms. Mazur asserts the jury could not have considered all the evidence
because it deliberated only two hours (three may be more accurate, based on the
trial judges reasons and transcript) following a trial requiring 15 days of
court time.

[85]

The standard of review
for a complaint of unfairness in the trial process is
whether a
reasonable person informed as to what took place in that proceeding would be
apprehensive that the appellant did not receive a fair hearing
.

[86]

The respondents point to
the oath taken by the jurors; the
Jury Act
, which anticipates a unanimous
verdict after three hours; and the fact that the jurors would have been
familiar with the evidence by the end of the trial as factors refuting
Ms. Mazurs claim of unfairness. I agree with the respondents that the
duration
of jury deliberations provides no basis for appellate intervention.

[87]

In my view, t
here
is no evidence to support Ms. Mazurs assertion she did not receive a fair
trial. I would dismiss this ground of appeal.

Cross-Appeal

1.      
Costs

[88]

Costs for the first trial were left to the discretion of the second
trial judge. The trial judge awarded Ms. Mazur her costs for the first and
second trial:
Mazur v. Lucas
, 2011 BCSC 1685. Reasoning that the appeal
court implied that the costs of first trial should be considered in light of
the award on the second trial, the judge observed that the award on the second
trial exceeded the defendants offer to settle on the first trial so Ms. Mazur
was entitled to her costs for the first trial. With respect to the costs of the
second trial, the judge considered each factor in Rule 9-1(6) of the
Supreme
Court Civil Rules
, B.C. Reg. 168/2009. She gave significant attention to
Rule 9-1(6)(d), which permits a judge to consider any other factor. She
concluded the discrepancy between the awards from the first and second trials
was not explained by the result of the first appeal. The trial judge awarded
Ms. Mazur her costs of the second trial, concluding Ms. Mazur acted reasonably
in declining to accept the respondents second offer to settle given the
quantum of damages she received after the first trial.

[89]

In their cross-appeal
factum, the respondents argue the trial judge erred in considering the first
appeal as relevant to the costs for the second trial. They say this error
caused the judge to ignore the costs consequences of their second offer to
settle and this Court should order Ms. Mazur to pay the respondents costs
after August 17, 2011.

[90]

The award of costs was
entirely discretionary. Absent an error in principle, there is no basis for
appellate intervention. The trial judge thoroughly and carefully reviewed all
relevant factors identified in Rule 9-1(6) and held that in all the
circumstances Ms. Mazur should have her costs of the second trial. I find no
error in principle in the exercise of her discretion in favor of Ms. Mazur. I
would dismiss the respondents cross-appeal.

2.      
Repayment of part-payment on account of the first trial award

[91]

On
November 25, 2009,
the respondents commenced an appeal of the first trial.
The parties
negotiated a part-payment of $250,000 to Ms. Mazur in exchange for a consensual
stay of execution on the first trial order. The respondents have filed a Notice
of Motion seeking a repayment order.

[92]

I would order Ms. Mazur to repay the respondents the amount by which the
part-payment on account of the first trial award exceeds her ultimate net
entitlement as against the respondents.

Conclusion

[93]

I would dismiss Ms. Mazurs appeal.  I would dismiss the
respondents cross-appeal. I would make the repayment order against Ms. Mazur.

The Honourable Madam Justice Stromberg-Stein

I Agree:

The Honourable Mr. Justice
Groberman

I Agree:

The Honourable Madam Justice
MacKenzie








[1]









Trial
  1 Jury Award



Trial
  2 Jury Award





Non-pecuniary damages



$55,000



$25,000





Past income loss



$145,000



$53,000





Future income loss



$307,000



nil





Special damages



$3,400



$6,000





Future care cost



$18,000



nil





Total



$528,400



$84,000





Time jury deliberated



Approximately 1 day



Approximately 3 hours





Defendants formal offer
  to settle



$60,000
  (
11.4%
of final award)



$300,000
  (
357%
of final award)









