



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Falati v. Smith,









2011 BCCA 45




Date: 20110202

Docket: CA038069

Between:

Hourash Falati

Respondent

(Plaintiff)

And

Marion May Smith

Appellant

(Defendant)




Before:



The Honourable Mr. Justice K. Smith





The Honourable Madam Justice Bennett





The Honourable Madam Justice Garson




On appeal from: Supreme
Court of British Columbia, April 7, 2010
(
Falati v. Smith
, 2010 BCSC 465, Vancouver Registry M074325)

Oral Reasons for Judgment




Counsel for the Appellant:



A.B. Hudson
P.M. Arvisais





Counsel for the Respondent:



D.M. Mah





Place and Date of Hearing:



Vancouver, British
  Columbia

January 27, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

February 2, 2011








[1]

BENNETT J.A.
: Mr. Falati, the respondent, was struck by a motor
vehicle driven by Ms. Smith, the appellant, on February 13, 2007. He suffered a
crush-type fracture to his left tibia and a fracture of the fibula. He was
hospitalized, underwent surgery, and after discharge from hospital, underwent a
course of physiotherapy. The trial judge found that there was a possibility
that he would suffer a permanent disability associated with the injury.

[2]

The trial judge made the following awards:




·

Non-pecuniary damages



$ 85,000.00





·

Gross Past Loss of Earning Capacity:



$180,000.00





·

Future Loss of Earning Capacity:



$ 75,000.00





·

Special Damages:



$   1,102.44






[3]

The appellant appeals the award for gross past loss of earning capacity
and the future loss of earning capacity.

Facts

[4]

Mr. Falati had three potential sources of income. At the time of the
accident he had a photography business, from which he had earned $40,000 during
2006. His father was in negotiations to purchase a café. The closing date was
set for April 2007, and Mr. Falati planned to be the manager of the café,
earning $5,000 per month. Mr. Falati was also involved in developing a
restaurant in Yaletown with another gentleman, who was the financier. Mr.
Falati was to manage this restaurant earning $6,000 per month.

[5]

The trial judge concluded that Mr. Falati would not be able to perform
both restaurant jobs, and eventually another manager would have to be hired for
one of the restaurants had both proceeded.

[6]

The café purchase did not complete. The trial judge concluded that the
failure of this business was causally connected to the accident, a finding
which on appeal is not disputed by Ms. Smith. The financier eventually pulled
out of the Yaletown restaurant. The trial judge concluded that he would have
pulled out regardless of the accident, and found that any delay in the opening
of the restaurant was not causally connected to the accident.

[7]

As noted, Mr. Falatis father was going to invest in the café. When that
deal collapsed, and the financier for the Yaletown restaurant withdrew, his
father invested his money into the Yaletown restaurant. The trial judge found
that the father would not have had the money to invest in the Yaletown
restaurant if he had purchased the café. Mr. Falati invested $300,000 of his
own money in the Yaletown restaurant, derived from the sale of his condominium.
Mr. Falati began receiving $6,000 per month around June 2008, initially for his
work setting up the restaurant and then for his work at the restaurant. The
restaurant opened for business in December 2008. Mr. Falati also holds a 40%
ownership in the restaurant with his father. Mr. Falati was unable to perform
all of the functions of manager. Mr. Canuel had to be hired to manage the
restaurant. The trial judge found that there was a causal connection between
the accident and the necessity to hire a manager. He also considered the fact
that the manager, who was also a sommelier, added some benefit to the business.

[8]

The trial judge found that Mr. Falatis injuries have continued to place
some limitations on his capacity to earn income from his photography. Mr.
Falati has not earned any income from photography since the accident. The trial
judge accepted Mr. Falatis evidence that if he was working at both of these
other jobs, he would earn around $10,000 per year from his photography. The
trial judge concluded that Mr. Falati would not be able to work at both
restaurants but would be able to augment his income through photography.

[9]

The trial judge found that there was a possibility that Mr. Falati would
suffer from a permanent disability in relation to his ankle. The evidence from
Mr. Canuel was that Mr. Falati had difficulty performing physical tasks at the
restaurant, which would be considered routine for a manager.

Standard of Review

[10]

The standard of review is well-established. An appellate court cannot
interfere with a trial judges findings of fact unless there is a palpable and
overriding error. The trial judge must have committed a manifest error, ignored
conclusive or relevant evidence, has misunderstood the evidence, or drawn
erroneous conclusions from the evidence before an appeal court can intervene. See:
Toneguzzo-Norvell
(Guardian ad litem of) v Burnaby Hospital,
[1994] 1 S.C.R. 114 at para. 16.

Past Loss of Earning Capacity

[11]

The appellant submits that the trial judge must have double counted the
income from the two restaurant positions when he assessed $180,000 for past
wage loss. Her submission is that $180,000 divided by 38 months (from the time
of the accident until the time of the judgment) approximates what Mr. Falati
would have earned from managing the café. The appellant submits that the trial
judge must not have taken into account and deducted the money earned by Mr.
Falati at the Yaletown restaurant.

[12]

The trial judge found that Mr. Falati would have worked at the café
earning $5,000 per month, but for the accident. The café deal was to be
finalized in early April 2007. Mr. Falati began to earn income from the
Yaletown restaurant in mid-2008. Therefore there was a 14 month period during
which Mr. Falati earned no income as a result of the accident. During this 14
month period his earnings from the café would have been in the range of $70,000.
Once Mr. Falati began earning income of $6,000 per month, he had to hire a
manager because he was physically unable to perform the job. Mr. Canuel has
been paid $5,000 per month since December 2008. As noted, Mr. Falati has a 40%
interest in the business. Thus, there is evidence that the business would have
been more profitable had it not had to retain Mr. Canuel. In addition, a
contingency taken into account by the trial judge is that Mr. Canuel is also an
experienced sommelier, and would add some benefit to the business. Finally, the
trial judge had the evidence of what Mr. Falati earned from his photography
business. Mr. Falati estimated that if he was working at both restaurants, he
could earn an additional $10,000 from his photography business. The trial judge
concluded that it was unreasonable for Mr. Falati to successfully work at two restaurant
managerial positions. However, he found that Mr. Falati would be able to
supplement his income through his photography business. The trial judge could
reasonably conclude that if Mr. Falati was only working at one job, he could
earn additional income from his photography, taking into account that he earned
$40,000 annually from this business before the accident.

[13]

Therefore, there was evidence before the trial judge from which he could
reasonably conclude that the past wage loss of Mr. Falati was in the range of
$180,000.  The assessment for loss of earning capacity is not a mathematical
calculation. It is what it is called: an assessment. The trial judge considered
a number of hypothetical situations which could reasonably arise from the
evidence including those he considered contingencies, which might affect the
assessment. In my respectful view, there were available routes in the evidence
to his conclusion without double counting income as submitted by the appellant.

[14]

In my view, the trial judge did not commit an overriding or palpable
error when he made his assessment of past wage loss.

Future Loss of Earning Capacity

[15]

The appellant submitted that there was no evidence to support the award
of future wage loss. However, when asked whether the possibility of a permanent
ankle injury would attract such an award, counsel fairly conceded that it
would, given that Mr. Falatis current employment requires physical activity
which he is not able to perform fully.

[16]

In addition, there is evidence of a reasonable possibility that Mr.
Falati will be limited in his ability to earn income from his photography
business.

[17]

The trial judges assessment of $75,000 represents a salary of less than
a year from his work as a restaurant manager and his work as a photographer. In
my respectful view, this is a more than reasonable assessment taking into
account, as the trial judge did, the evidence and the potential contingencies.

[18]

I would dismiss the appeal.

[19]

K. SMITH J.A.
: I agree.

[20]

GARSON J.A.
: I agree.

[21]

K. SMITH J.A.
: The appeal is dismissed.

The Honourable Madam Justice Bennett


