COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
Clark v. Kouba,
2014 BCCA 50
Date: 20140206
Docket: CA040414
Between:
And
Before:
The Honourable Madam Justice Levine
The Honourable Mr. Justice Chiasson
The Honourable Madam Justice Garson
On appeal from: An order of the Supreme Court of British Columbia, dated
October 31, 2012 (
Clark v. Kouba,
2012 BCSC 1607 (CanLII), 2012 BCSC 1607, Vancouver Docket M100776).
Counsel for the Appellant:
Counsel for the Respondent:
G.K. MacIntosh, Q.C.
& J.L. Harbut
Place and Date of Hearing:
Vancouver, British Columbia
December 4, 2013
Place and Date of Judgment:
Vancouver, British Columbia
February 6, 2014
The Honourable Mr. Justice Chiasson
Concurred in by:
The Honourable Madam Justice Levine
The Honourable Madam Justice Garson
Summary:
The respondent was injured in an automobile accident. The damages awarded to her included $100,000 for loss of future income and $28,252.38 for a yoga club membership as part of the cost of future care. Prior to trial, the respondent was not off work for any significant period of time and did not claim lost past wages. She practiced yoga as part of pain management. The yoga club was in downtown Vancouver near her work place. The appellant contends that the loss of future income award was speculative and theoretical and that it was incumbent on the respondent to prove that she would not be paid if she was off work. He also asserts that the judge erred awarding the costs of the yoga club membership based on the respondent’s life expectancy. On appeal: appeal dismissed. The respondent did not have an obligation to prove she would not be paid for time off work in the circumstances of this case. The judge clearly was aware of the applicable law (for example: Rosvold v. Dunlop and Perren v. Lalari). There was evidence on which the judge could conclude that the respondent’s chronic pain resulted in a substantial possibility that her pain adversely would affect her ability to work. There was an evidentiary link between the medical evidence assessing the respondent’s pain and disability and yoga as treatment. The judge did not error in principle awarding the yoga club membership. There was evidence to support the quantum and little, if any, to counteract it.
Reasons for Judgment of the Honourable Mr. Justice Chiasson:
Introduction
[1] This appeal concerns an award for loss of future income and an award for membership in a yoga club as part of the cost of future care.
Background
[2] The respondent was injured when her motor vehicle was rear-ended by the appellant’s motor vehicle. The appellant admitted liability. The respondent sustained soft tissue type injuries. The trial judge awarded her damages as follows:
a. non-pecuniary damages - $85,000;
b. loss of future income - $100,000;
c. cost of future care - $38,452.38;
d. special damages - $15,286.66.
[3] The loss of income award has two components: $25,000 for time off work for three months as recommended by a physician and $75,000 representing future wage loss beyond the three months. The appellant appeals the award for loss of future income and that part of the award for the cost of future care that relates to the respondent’s membership in a yoga club ($28,252.38).
[4] At the time of the accident, the respondent was 46 years old. She was married with three children: a son and twin girls. The judge described her background as follows:
[5] Prior to the accident she was a physically active and athletic person, enjoying running, skiing, hiking, kayaking and biking. She has run several marathons, prior to and after the accident. She played competitive field hockey in university and is now the coach of her daughter’s team.
[6] She was educated at the University of British Columbia and obtained a Bachelor of Commerce degree. She has been employed by Transport Canada for the past 21 years and at the time of trial was working full-time as a regional manager for accounting services. At the time of the accident, she was working part-time three days a week as a project manager. Ms. Clark had reduced her employment to part‑time after the twins were born and did not start working full-time again until May 2009, almost three years after the accident. At the time of trial she was having difficulty maintaining a schedule of full-time work and argued at trial that the entire reason for that difficulty in maintaining full-time work was attributable to pain from injuries sustained in the accident.
[5] Prior to the accident, the respondent was assessed medically for pain that occurred after she ran the Boston Marathon, for which she had pursued massage therapy, chiropractic care, physical therapy and acupuncture with incomplete relief. The trial judge commented on the respondent’s running at para. 74: “[t]his case is unusual, because the plaintiff is still able to participate in her recreational pursuits, including marathon running, and has completed a marathon in a second personal best time since the accident”.
[6] Subsequent to the accident, the respondent did not take any significant amount of time off work other than time for medical appointments and partial days when she left work due to headaches. She made no claim for past wage loss. Her superiors testified that they did not notice any change in the respondent after the accident.
[7] The respondent attends yoga classes each work day as part of her pain management. She has a membership in a yoga club in downtown Vancouver, which is close to her workplace.
Trial court reasons
[8] Causation was hotly contested. The trial judge reviewed the medical evidence in detail and stated at para. 69:
[69] In summary, the evidence of the plaintiff, her experts and the temporal connection between the accident and the injuries lead me to conclude that the injuries Ms. Clark described were caused by the accident and are chronic in nature.
[9] The judge then turned to an assessment of damages.
[10] Her comments in the context of assessing non-pecuniary damages have some relevance to the award for loss of future income. She stated:
[72] In this case, it is clear that the soft tissue injuries the plaintiff suffered have impacted all aspects of the plaintiff’s life. In addition to the physical symptoms I have detailed above, her injuries have impacted her personal relationships including her relationship with her husband and children. She has difficulty in performing some household chores, including making the beds and laundry and she has to call upon her husband and children to perform those tasks.
[73] The plaintiff has been dedicated to her own rehabilitation and such efforts in my view cannot be used to diminish the extent of her injury. In that sense she can be considered a stoic individual. Formerly she engaged in her recreational pursuits such as long distance running and yoga, for her own physical enjoyment. Now when she engages in them it is for an additional purpose, in order to assist in managing her chronic pain.
[74] I conclude that, as a result of the accident, Ms. Clark has suffered pain and loss of enjoyment of life, and her prognosis for the future is guarded. All of the authorities cited by both plaintiff’s counsel and the defence make it clear that each case is unique and must be determined on its own facts. This case is unusual, because the plaintiff is still able to participate in her recreational pursuits, including marathon running, and has completed a marathon in a second personal best time since the accident.
[11] The judge began her consideration of the claim for future wage loss by referring to and quoting from this Court’s decisions in
Rosvold v. Dunlop,
2001 BCCA 1 (CanLII), 2001 BCCA 1, and
Perren v. Lalari,
2010 BCCA 140 (CanLII), 2010 BCCA 140. These cases address the methods of calculating an award for loss of future income and the burden of proof on a plaintiff advancing such a claim.
[12] The judge noted at para. 78 that the respondent had not “missed any work as a result of the accident beyond short periods for medical appointments or leaving early because of headaches” and that her “supervisors were unaware of the accident, and did not notice any impact on her performance”. The judge continued discussing the respondent’s work history and stated at para. 80:
[80] Although [the respondent] was characterized by her counsel as a career driven person, I would not characterize her in that manner. She has balanced her family, professional and personal interests and has modified her career goals as a result of the birth of the twins, by extending her maternity leave and then returning to work part-time. She has not taken steps to achieve the professional designation that would allow her to become a director of finance. When she returned to work full-time, she did so based on the need of her employer and not because she wished to do so at that time. I am not satisfied that the injuries from the accident played any role in those decisions.
[13] The judge rejected the respondent’s claim based on working part-time, stating:
[81] With respect to the personal impacts on Ms. Clark, it is merely common sense to note that Ms. Clark, as a working mother with three children, who has a commute, a responsible job and a personal interest in long distance running which is demanding and time consuming, would necessarily feel some personal stress in attempting to balance all of these responsibilities and interests. It is my view that not all of that stress can be attributed to her injuries and the accident. Ms. Clark had never worked full-time after she had the twins and she did not have that as a basis of comparison. None of the medical experts recommend that Ms. Clark reduce her employment to part-time. In my view I should not quantify the damages under this head by assuming that Ms. Clark will find it necessary to reduce her employment to part-time until the end of her career in order to better manage her pain and her life. While she may make that choice for personal reasons, in my view I should not use an earnings approach relative to part-time versus full-time work in order to calculate the loss under this head.
[14] At paras. 82-86, the judge continued and completed her analysis:
[82] Even though Ms. Clark has not missed any work up until this point, I am satisfied, however, on the preponderance of the evidence that the plaintiff has established a real and substantial possibility of a future event leading to an income loss. Dr. Armstrong recommends that Ms. Clark take two to three months off from employment and discontinue her running program in order to allow sufficient time for rehabilitation and in order to allow her to advance her recovery and to ensure that she is not undoing what she is accomplishing in rehabilitation. That recommendation alone, which I accept, establishes a diminished future earning capacity in future in the range of just under $25,000.00.
[83] There are many positive and negative contingencies which impact Ms. Clark’s future recovery and long-term earning capacity. Assuming that Ms. Clark takes three months off and recovers sufficiently, she may be able to return to work in a manner that allows minimal impact on her working life. That is the most optimistic outcome.
[84] However, there are negative contingencies. Dr. Armstrong, Dr. Ryan and Dr. Lloyd-Smith are all guarded with respect to Ms. Clark’s long-term recovery. Ms. Clark may be managing her chronic pain right up to the conclusion of her working life. That will have an impact on Ms. Clark’s capacity to earn income as a capital asset.
[85] I conclude that Ms. Clark’s capacity to earn income in the future has been reduced, even though she has not missed any significant period of work as a result of the accident up to this point.
[86] It is my view that the loss is not easily measurable, and a capital asset approach is the appropriate approach to this loss. Having considered all of the evidence, it is my view that a total award of $100,000.00 is appropriate under this head of damage, of which $25,000.00 reflects the loss resulting from Dr. Armstrong’s recommendation of time off for recovery, and $75,000.00 represents my assessment of the chance that negative contingencies will cause Ms. Clark to incur future wage loss.
[15] The judge then turned to the cost of future care. She began by referring to
Andrews v. Grand & Toy Alberta Ltd.,
1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, and
Gignac v. Insurance Corporation of British Columbia,
2012 BCCA 351 (CanLII), 2012 BCCA 351, which state the principles that guide a consideration of a claim for the cost of future care. The objective is to put the injured party in the same position she would have been in had she not been injured. She is entitled to what is reasonably necessary to do so. The judge observed at para. 90 that some evidentiary link between a “physician’s assessment of pain, disability and recommended treatment” is required.
[16] The yoga club membership was addressed by the judge at para. 91:
[91] I am satisfied that there is an evidential link between all of the specific care recommendations of Dr. Armstrong, with the exception of the gym membership. Ms. Clark has stated in evidence that she will follow these recommendations. With respect to the gym membership, I prefer the recommendation of the other health care practitioners around the yoga membership recommended by Dr. Ryan, Dr. Akerley and Dr. Lloyd-Smith. It is my view that, based on the evidence of Ms. Clark, she has and will continue to pursue yoga as part of her chronic pain management. This court has recognized yoga as a medically justified care expense, particularly in the context of chronic pain management:
Sharpe v. Tidley,
2009 BCSC 948 (CanLII), 2009 BCSC 948, [2009] B.C.J. No. 1400;
Peers v. Bodkin Leasing Corp.,
2012 BCSC 271 (CanLII), 2012 BCSC 271, [2012] B.C.J. No. 364. Although I recognize that Ms. Clark may be able to practice yoga at a less expensive facility, I accept on the evidence that she needs to practice it in downtown Vancouver at a facility that is close to her place of work, and that it will be a long-term need.
[17] She awarded the respondent $28,252.38, which appears to be the present value of an annual cost of $1,483.22 based on the life expectancy of the respondent.
Positions of the parties
[18] The appellant contends that the judge erred “in awarding a theoretical or speculative loss of earning capacity” and “in awarding the cost of a yoga membership to the end of the respondent’s life expectancy”.
[19] The respondent states that the issue is whether the judge made a reversible error and asserts that she did not.
Discussion
Loss of future income
[20] As noted, the award for loss of future income has two components: $25,000 related to time off work for three months as recommended by a physician and $75,000 for future wage loss caused by negative contingencies. The appellant asserts that the evidence does not support either of the awards. Although there was evidence to support a three month absence from work for rehabilitation, the appellant contends that the $25,000 award cannot stand because the respondent did not prove that she will not be paid during this time. I shall deal firstly with this issue.
[21] It is not clear to me whether the appellant took this position at trial. There certainly was no evidence adduced directly on the issue. There was evidence that the respondent had not been paid when she was off work for periods of time for other reasons. Had the issue been live at trial, it could have been explored because the respondent’s superiors testified.
[22] In the absence of a contractual or other right to compensation, it is a fair inference that employees who do not work do not get paid. In the present case, although there is no suggestion that the respondent was not paid when she took time for medical appointments or went home early with a headache, in my view, a three month absence is another matter.
[23] The case authorities referred to by the parties address the deduction of compensatory payments by way of an employer’s voluntary payment of wages, the use of contractually authorized sick days or benefit plan payments. The evidence in this case does not address such matters.
[24] In my view, there is no basis on which this Court should interfere with the judge’s decision to compensate the respondent for wages lost as a result of her being off work for rehabilitation. I turn to the other component of the loss of future income award.
[25] The appellant contends that the judge proceeded on a misapprehension of the evidence and erred in principle in awarding the respondent $75,000 for loss of future income.
[26] The appellant asserts in his factum:
It may be that the trial judge anticipated a loss of income based on a mistaken understanding that the respondent’s condition pre-trial had worsened to the point that she stopped running after April 2010.
The judge stated incorrectly at para. 45 that “after running the Boston Marathon again in April 2010, [the respondent] has not been doing any running and was not doing any running at the time of trial.” The judge also alluded to this at para. 46.
[27] The comment was made in the context of an apparent change by the respondent in her approach to dealing with her injuries. The judge noted the appellant’s argument that the change “coincides with examinations for discovery in this case and her perception from the questions asked by the defence that her active approach would be used against her at trial.” The judge stated at para. 47:
[47] As I have indicated, overall I found the plaintiff credible. However, I did find this aspect of her evidence troubling. I conclude that the ongoing stress of litigation, combined with her chronic pain, may have impacted her decisions around her approach to pain management. In Dr. Ryan’s report of May 19, 2009 (Exhibit 3, Tab 18) he states:
… I do not believe that she is likely to ever improve completely. If she stops treatments completely, and stops exercising, then I would expect she would worsen significantly.
In fact, this is exactly what has happened. Even though Ms. Clark has continued with her yoga, since she has stopped running, her condition has worsened.
[28] I read the judge’s comment as more of a criticism of the respondent than a basis for compensating her. In any event, when addressing non-pecuniary damages the judge was fully aware of the respondent’s ongoing activities.
[29] At para. 73, she commented on the respondent’s recreational pursuits such as long distance running and stated that “[n]ow when she engages in them it is for an additional purpose, in order to assist in managing her chronic pain”. At para. 74, the judge observed that this case “is unusual because the [respondent] is still able to participate in her recreational pursuits, including marathon running”.
[30] In my view, the judge’s error did not influence her award for loss of future income.
[31] The appellant contends that the judge erred because there was no finding of a real and substantial possibility of a loss of income. He relies on
Perren,
Steward v. Berezan,
2007 BCCA 150 (CanLII), 2007 BCCA 150, and
Jurczak v. Mauro,
2013 BCCA 507 (CanLII), 2013 BCCA 507.
[32] These cases make it clear that a plaintiff must prove that there is a “real and substantial possibility of a future event leading to an income loss” (
Perren at para. 32) and that an award cannot be based on speculation. The appellant states that the judge misapplied these principles in this case. He notes that the judge rejected the respondent’s claim for compensation based on part-time work and that there was no medical evidence that she could not work full time.
[33] The judge was very aware of the principles that guide the consideration of a claim for future income loss. She quoted the relevant passage from
Perren after quoting from this Court’s decision in
Rosvold. She commented on the fact that the respondent had not missed work due to the injury (a factor, but not a determinative factor: see
Rosvold at para. 10). Chronic pain will not always result in an award for future loss of earning capacity, but, on the facts of this case, the judge found that the respondent’s chronic pain resulted in a substantial possibility that her pain adversely would affect her ability to work. There was evidence to support such a finding.
[34] The medical evidence confirmed that the respondent suffered from continuing pain. It also confirmed that she was stoic. Referring to
Hartnett v. Leischner & ICBC,
2008 BCSC 1589 (CanLII), 2008 BCSC 1589, the judge correctly observed at para. 73 that the respondent should not be penalized for that.
[35] In my view, the judge’s findings of fact were based in large part on her acceptance of the respondent’s evidence; evidence that she examined carefully and did not accept in total. At para. 82, the judge stated:
… I am satisfied … on the preponderance of the evidence that the [respondent] has established a real and substantial possibility of a future event leading to an income loss.
[36] That finding accords with the applicable legal test and was supported fully by the evidence. The judge continued at para. 84:
… [The respondent] may be managing her chronic pain right up to the conclusion of her working life. That will have an impact on [the respondent’s] capacity to earn income as a capital asset.
And at para. 85:
I conclude that [the respondent’s] capacity to earn income in the future has been reduced …
[37] The judge stated that the “loss is not easily measurable”. For that reason, she concluded that “a capital asset approach is the appropriate approach to this loss.” In her judgment, $75,000 represented her “assessment of the chance that negative contingencies will cause [the respondent] to incur future wage loss” (at para. 86).
[38] There was considerable evidence that coping with pain is a daily struggle for the respondent. The respondent notes that the award in question represents less than one year’s salary lost over the 14 or 15 years of the respondent’s future working life. Her 2010 tax return shows that she had $112,647 in employment income that year. In 2009, that income was $96,140.
[39] In my view, the judge made no error of principle in her approach to considering the claim for loss of future income. Her findings of fact were supported by the evidence. The award is not out of line with the circumstances of the respondent. I would not interfere with it.
Yoga club membership
[40] The appellant explained that the award of $28,252.38 was based on the present value of an annual fee of $1,483.22 calculated over the respondent’s life expectancy. This was derived from actuarial evidence adduced by the respondent.
[41] The appellant does not take exception to an award for a yoga club membership, but asserts it should have been reduced for general and specific contingencies. Specifically, the respondent may not travel to downtown Vancouver after she retires at age 65. Less expensive facilities may be available closer to her home or she may do the sessions in her home. She also may reduce the frequency of her yoga sessions.
[42] The appellant points to no evidentiary basis for these contingencies. We were not directed to any evidence of the present value of the yoga club membership based on the respondent at age 65 or the cost of alternative facilities that might be used. Although the appellant referred to the fact that the respondent used yoga for a short time prior to the accident, the evidence supports the continued need for pain management. I would not disturb the judge’s award based on the contingencies identified by the appellant.
[43] The appellant contends that the judge erred when she stated at para. 91:
… With respect to the gym membership, I prefer the recommendation of the other care practitioners around the yoga membership recommended by Dr. Ryan, Dr. Akerley and Dr. Lloyd-Smith.
The appellant asserts that the medical evidence does not support the judge’s statement. In my view, the evidence must be considered in context.
[44] Dr. Ryan did not specifically recommend yoga, but he was well aware that it was part of the respondent’s exercise regime, which he did recommend. He stated that if she were to stop exercising he “would expect she would worsen significantly.” Dr. Lloyd-Smith also encouraged the respondent to continue exercising “including aerobic activity, flexibility, strength and yoga”. Dr. Akerley, who is a chiropractor who worked out of the yoga facility used by the respondent, also was well aware she practiced yoga, which she described as being “known to have an effect on overall well-being and the mind-body connection”.
[45] As noted, the trial judge stated that she must “determine some evidentiary link between the physician’s assessment of pain, disability and recommended treatment”. In my view, there was some evidentiary link in this case. The judge made no error of principle. She relied on the evidentiary link and on the respondent’s evidence that yoga assisted her to manage her pain that was caused by the accident. There was an evidentiary basis for the quantum of the award.
[46] I would not disturb the award of $28,252.38 for the cost of a yoga club membership.
Conclusion
[47] I would dismiss this appeal.
“The Honourable Mr. Justice Chiasson”
Motor Vehicle Lottery Winner
Kidding, obviously. 
