Anderson v. Lancaster

Date: 19990105 Docket: CA022957 Registry: Vancouver

COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN:

CANDI AMBER ANDERSON PLAINTIFF (APPELLANT) AND: DON LANCASTER and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA DEFENDANTS (RESPONDENTS) AND: JUDY MINER and THE BOARD OF SCHOOL TRUSTEES OF SCHOOL DISTRICT NO. 5 (CRANBROOK) DEFENDANTS Before: The Honourable Mr. Justice Hinds The Honourable Madam Justice Prowse The Honourable Mr. Justice Finch T. M. Cohen Counsel for the Appellant M. P. Ragona, Q.C. Counsel for the Respondent B. Devlin Place and Date of Hearing Vancouver, British Columbia 24 November, 1998 Place and Date of Judgment Vancouver, British Columbia 5 January, 1999 Written Reasons by: The Honourable Mr. Justice Finch Concurred in by: The Honourable Mr. Justice Hinds The Honourable Madam Justice Prowse Reasons for Judgment of the Honourable Mr. Justice Finch:

I INTRODUCTION [1] The plaintiff appeals, and the defendant cross-appeals, the judgment of the Supreme Court of British Columbia pronounced 20 February, 1997 awarding the plaintiff damages for injuries and consequent losses sustained as a result of an accident on 11 June, 1984 when the plaintiff was nine years old. The plaintiff asserts that the learned trial judge's award for impaired future earning capacity is inordinately low, and that the judge also erred in failing to make any award for loss of the opportunity to form an economically advantageous interdependent relationship. The defendant cross-appeals against the award for non-pecuniary damages which counsel argues is inordinately high. The plaintiff moves to adduce fresh evidence on this latter issue. [2] The plaintiff suffered severe burns to her face and neck when participating in a school outing for her grade 3 class to Fort Steele, an historical park, near Cranbrook, B.C. in June, 1984. The children were watching a farrier attempt to light a forge using alcohol. It appears that when the fire suddenly erupted, alcohol ignited and was accidently thrown or spilt onto the plaintiff, causing her very serious burns and consequent scarring. The learned trial judge summarized the injuries and their treatment as follows:

THE INJURIES SUSTAINED AND HISTORY OF TREATMENT The burns received were to extensive areas of the plaintiff's face and neck. The most extensive burns were to the right side, involving her right ear, her neck, under her chin and to the area under her left ear. She was taken immediately after the incident to the Cranbrook Hospital and then by air ambulance to the Calgary Burn Unit. Initial concerns included the fact that her eyes were damaged to the extent she could not see. Ms. Anderson's eyesight resolved after a few days and the emergency treatment was followed by a debriding of damaged tissue and skin grafts. These procedures were performed the 20th of June, 1984. Tissue was obtained from her thigh and buttocks. The operation was followed by painful therapy required to assist in the development of the skin grafts. She was transferred to Calgary Children's Hospital on June 30, 1984 and released approximately six weeks later. Ms. Anderson was fitted for Jobst garments once the grafts had healed. These elastic garments included in her case, a tight fitting hood which enclosed all but the front of the face and a shirt and shorts which covered her upper chest and neck and the skin graft donor sites. She was also fitted with a rigid splint which supported her neck and lower chin. The area covered by the elastic garments lessened over time, however, some form of garment was required

for more than three years following the initial injury. In May of 1985 and July of 1986, further surgeries were performed to release tightness in the grafted areas. The 1986 surgery involved further grafting from donor sites and a ten day stay in hospital. In August 1987 and April 1988, operations were performed in respect of Ms. Anderson's ears. The first was designed to situate her ears closer to her head and the second involved the grafting of cartilage to reconstruct a portion of the outer rim of the right ear, to replace tissue lost as a result of the original burns. In December of 1993, Ms. Anderson was operated on to place a silicone implant in her chin, to again release tension in the neck tissue, and to further reconstruct her ear. Through the course of these surgeries, Ms. Anderson underwent orthodontic treatment to help develop the appearance and function of her lower jaw. Both this and the implant to improve the profile of her chin became necessary in part because of the natural shape of her jaw, likely made more pronounced through the effect of the lengthy constriction of the elastic garment. She has also undergone electrolysis in an unsuccessful attempt to remove hair growth to one side of her neck below her chin, associated with grafted skin from her lower abdomen. She also has scarring associated with the skin donor sites. [3] The learned trial judge awarded the plaintiff $170,000 for non-pecuniary damages, and $26,000 for economic loss, as well as awards under other heads of damage not in dispute on this appeal.

II

THE APPEAL [4] The plaintiff's claim for economic losses were pleaded in the statement of claim as follows: At the time of the aforesaid collision, the Plaintiff was a student and by reason of the accident of the 11th day of June, 1984, and injuries sustained by the Plaintiff, CANDI AMBER ANDERSON was unable to earn income and suffered a loss of earnings or a loss of opportunity to earn income and the Plaintiff will in the future continue to suffer a diminished capacity to earn income or a loss of opportunity to earn income. As a further result of the injuries sustained by the Plaintiff in the accident of the 11th day of June, 1984, the Plaintiff suffered a loss of economic advantage of a joint, inter-dependent relationship. [5] At trial the plaintiff's claim for future economic loss was advanced on the premise that there was a substantial possibility of her becoming a medical doctor. It was argued that before the accident she had the ability and aptitude to succeed in achieving that goal, but that the injuries she suffered deprived her of that opportunity. The learned trial judge found that this line of argument was not supported by the evidence. He said: The evidence of William Kelly, a psychologist who advises on psychological aptitude for various vocations, found Ms. Anderson's characteristics most similar to those employed in certain non professional occupations and

dissimilar to those employed as physicians, or other professions. Ms. Anderson's school record, which although it shows her to be an enthusiastic, personable and accomplished student in some respects, does not indicate the strength in academic subjects necessary to persevere to become a medical professional. It is also notable that she became disinterested in the academic subject she took at the Community College. Mr. Kelly found Ms. Anderson's characteristics most similar to those employed as a store manager, a travel agent, a florist and a secretary, to name the top four. Three of the four are positions which deal with retail sales of goods or services, an area in which Ms. Anderson has had experience. Her evidence indicated that she finds such positions rewarding except as to her understandable reluctance to take employment requiring extensive exposure to the public. The likely result of this, in my view, is to narrow the range of occupations she is likely to excel at. She is not precluded from suitable employment, has demonstrated that she is a good employee, and her present plan to take up training in the travel industry is likely a good choice. However, in my view, her ability to take alternate employment as required through her working lifetime should her employment be interrupted through economic vicissitudes or should she withdraw from the workforce for a time to raise

children, is impaired. Accounting for this as a form of loss is not assisted by the economic evidence presented, except by way of general parameters. I believe suitable assessment of this loss would be achieved by setting aside one years [sic] average income, of those of like educational background, to compensate for this difficult to quantify, but nonetheless real aspect of loss. The statistical tables record this figure at $26,000. [6] On this appeal counsel for the plaintiff says there are two errors reflected in this award. First, the learned trial judge considered only the likelihood of the plaintiff's achieving the asserted occupational goal. He did not consider the plaintiff's capacity to earn income in the future as a "capital asset" which was impaired, and rendered less valuable, as required by the judgment of the Supreme Court of Canada in Andrews v. Grand & Toy (Alberta) Limited, [1978] 2 S.C.R. 229, and subsequent authorities. The result, the plaintiff says, is an award for economic loss that is inordinately low. Second, counsel for the plaintiff says the reasons for judgment failed to demonstrate that the judge gave any consideration to the plaintiff's claim for loss of the opportunity to form a permanent interdependent relationship, with the resulting economic advantages, as considered in Reekie v. Messervey (1989), 36 B.C.L.R. (2d) 316 (C.A.). [7] Counsel for the

defendant says the award for economic loss is all that the evidence will bear, and that the supporting findings of the learned trial judge ought not to be interfered with by this Court. He says the plaintiff's physical and mental abilities to earn income have not been impaired by her scars, and that the only limitation on her earning ability is her awareness of the scarring, a "self-imposed" psychological limitation or impairment, without economic consequences. Counsel says the only cases where awards for impaired earning capacity have been made are those where there were continuing physical or intellectual limitations. Counsel for the defendant also argues that the claim for loss of an economically advantageous interdependent relationship was not proven. He says that the claim was advanced on the premise that if the plaintiff had achieved the goal of becoming a medical practitioner, her chances of marrying a doctor would have been greatly increased, and that failure to prove the first part of this claim must inevitably lead to the failure of the second part. [8] In Pallos v. Insurance Corporation of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.), this Court held that the claim for future economic loss could be considered either as the loss of an opportunity that was a real or substantial possibility, or as the loss or impairment of earning capacity viewed as a capital

asset. There, as in this case, the trial court considered only the first approach. The majority in this Court in Pallos held that the plaintiff was entitled to have his claim considered under either of the two alternative approaches. [9] In the case at bar, the learned trial judge found that the plaintiff's claim that she lost the opportunity to become a medical practitioner was not supported by the evidence because she did not have the necessary "strength in academic subjects". This conclusion is based on the evidence of an industrial psychologist, William Kelley, who interviewed the plaintiff on 14 May, 1996, about six months prior to trial, and almost 12 years after the accident, and who also reviewed a number of documents relevant to her case. His written opinion says in part: Because Ms. Anderson was a young school student at the time of suffering the significant burns she experienced, I look first to see if there are data from her educational record which suggest that her achievement may have been diminished by the burns and subsequent years of treatment. In my opinion her achievement in school may have been lowered a little for grade four, but she ended up performing fully as well in her academic and non-academic courses as would be a reasonable expectation for her level of abilities. I do not believe that her education has been diminished. Her marks were at the level

that would be expected from good effort, with her aptitude. Occupationally, she never was going to able [sic] to be a physician, or any university-graduate professional. She was never going to be able to be a para-professional in technical or scientific fields, and probably not a registered nurse, therefore, even one without a university degree. [10] The plaintiff suffered her injuries just at the end of the grade 3 school year. I am unable to understand how there could be any reliable foundation for Mr. Kelley's opinion when the subject of it was still in the primary grades of elementary school at the time of her injuries, and when her subsequent performance must have reflected the effects of her injuries, whatever those effects may have been. By the same token, it seems to me equally unrealistic to have advanced the theory that, but for her injuries, the plaintiff would have become a medical doctor. The possible realization of either eventuality, absent the accident, is so remote in time from its date, and subject to so many unknown and unknowable factors, that an opinion on the subject is nothing more than speculation. One cannot therefore say that the learned trial judge erred in rejecting as unfounded the basis on which the plaintiff's claim for economic loss was advanced. It is regrettable that counsel at trial (who was not counsel on the appeal) did not advance as an

argument, even in the alternative, that the loss could be considered as one for impairment of the "capital asset", the capacity to earn income. Such a claim was open on the law and the pleadings, and, to the extent that it is supported by the evidence, it is properly a matter of consideration by this Court. [11] The only consideration given by the learned trial judge to this aspect to the plaintiff's claim appears to be in this sentence of the passage of his reasons quoted above at para.5: However, in my view, her ability to take alternate employment as required through her working lifetime should her employment be interrupted through economic vicissitudes or should she withdraw from the workforce for a time to raise children, is impaired. [12] It is by no means clear to me why an award for an impaired ability to earn income should be limited to possible work interruptions due to "economic vicissitudes" (strikes, lay- offs, etc.) or to time off for child rearing. [13] Considerations relevant to the valuation of loss from impaired capacity to earn income adopted by this Court in Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 are said at 399-400 to be 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. [14] In my view, those considerations apply to the evidence concerning future economic losses in this case. [15] Counsel for the defendants tacitly admitted, as I think he was obliged to upon the evidence, that the burns and resulting scars have had serious psychological consequences for the plaintiff. He referred to those consequences as "self-imposed" limitations of awareness of and self-consciousness about the disfiguring appearance of her scars, but he contended that the economic effects of the "psychological scarring" were adequately compensated for by the award of $26,000. [16] The report of Dr. Lee Pulos, the clinical psychologist who assessed the plaintiff was in evidence. His report, dated 30 March, 1994 refers to her "sense of incompleteness", "significant pockets of insecurity, shame and disgust about herself that will make it very difficult for this young woman to reach out or to integrate comfortably with other people - particularly men", and to "underlying themes of depression and an accompanying sense of anger". The report concludes: Thus, in summary, Candi has adjusted relatively well to a devastating trauma and series of

medical procedures that have left visible scars on most of her body. However, her self-esteem and body image are on very "thin and shaky stilts" resulting [sic] a very low social drive level and a sense of inhibition around people. This is a young woman who will settle for a lot less in life than she is capable of and it is rather doubtful that she can ever fulfill her potential. There is also the underlying anger (that is not being dealt with) and her fire phobia which will result in fearful and avoidant behavior that most people could handle quite easily. At some point - and it must come from her - I suspect she is going to need counseling [sic] to deal with the thinly veiled feelings that she is either suppressing or avoiding. There is a lot of potential in this young woman but as it stands now - she is living life guardedly and defensively even though she has superficially made a good adjustment to a horrendous life ordeal that has occupied ten of the most formative years of her young life. [17] In a further report of 27 April, 1994 Dr. Pulos said that "... because of her scars and low sense of self-worth she is living a 'low risk' life, will not extend herself to her abilities, and she will - and is - settling for a [sic] far less than she is capable of". [18] There is, in my respectful view, more to the capital asset of capacity to earn income than the physical and

intellectual components argued for by counsel for the defendants. Physical and intellectual abilities may not amount to very much, without self-confidence, motivation and ambition. Many people fail to achieve the potential their natural gifts would suggest because they lack self-esteem, have low social drive, and find themselves unwilling or unable to risk the chance of failure. [19] There was reliable and believable evidence to support an award for impaired capacity to earn income as a result of the psychological trauma and cosmetic disfigurement suffered by the plaintiff because of the burns to her face and neck. Applying the criteria set out in Kwei v. Boisclair, supra, it is clear that the value of the plaintiff's earning capacity, viewed as a capital asset, has been substantially diminished. [20] There remains the difficult question as to how to quantify the value of the impaired capacity to earn income. Much of the economic evidence adduced at trial was directed towards the claim that the plaintiff's injuries prevented her from becoming a medical practitioner. On this appeal counsel for the plaintiff said a proper award under this head would be $240,000. That is the capitalised present value of an annual loss of $10,000 income to age 65. The sum of $10,000 is chosen, as I understood the plaintiff's arguments, as an arbitrary 25% impairment of an ability to earn an equally

arbitrary income level of $40,000. [21] Counsel for the defendants argued that the award by the trial judge of $26,000, although "minimal" and "nominal", did not merit intervention by this court. That sum was predicated on the loss of "one year's average income, of those of like educational background", and although equally arbitrary, is said by counsel to be adequate in the circumstances. [22] There is no way to measure objectively or with exactitude the measure of the loss suffered by the plaintiff under this head. One cannot know how the plaintiff's economic life would have developed if she had not been injured, nor can one know the extent to which her earning capacity has been impaired by the undoubted psychological trauma she has suffered, not to mention the physical scarring, with the consequent loss of self-confidence, self-esteem and ambition. It is in my view essentially a matter of judgment, using at least in part the "crystal ball" of which Mr. Justice Dickson (as he then was) spoke in Andrews, supra. At this point I am prepared to say only that the award of $26,000 is inordinately low, and out of all proportion to the extent of the plaintiff's probable economic losses. [23] Before expressing my judgment on what a fit award would be under this head, I will turn to the claim for loss of an economically advantageous permanent interdependent relationship, and the

plaintiff's motion to adduce fresh evidence. In my view, the plaintiff's claim under this head is closely related to her claim for loss of earning capacity, and the two heads of damage should be considered together. [24] The leading case in British Columbia on this issue is Reekie v. Messervey, supra. Mr. Justice Lambert giving the majority judgment affirmed an award of $250,000 for future economic losses, which included the sum of $50,000 for loss of the opportunity to form a permanent dependency. He said at 334: My conclusion is that diminishment of an opportunity to form a more or less permanent relationship of interdependency has definite financial consequences, some positive and some negative. Those consequences are closely associated with the person's employment status. So an endeavour should be made to assess the net pecuniary effect of the interconnected financial consequences. Sometimes they will be more significant than at other times. The assessment will usually depend on both statistical evidence and a particular assessment of the individual. And it will, in most cases, be the best course to make the damage award reflect the relationship between losses flowing from the loss of the opportunity to create an interdependency on the one hand, and loss of earning capacity and other income achieving capacity on the other hand, and to make only one assessment covering the

whole of the income side of the plaintiff's future loss, including cost savings forgone. [25] This principle was affirmed by the majority of this Court in Mulholland (Guardian ed litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.) at 258-9. [26] In the case at bar, the plaintiff's claim under this head was apparently put forward on the basis that because her injuries deprived her of the opportunity to become a medical practitioner, she simultaneously suffered a greatly diminished opportunity to meet and form a permanent interdependent relationship with another medical practitioner, with consequent economic losses. That is the basis upon which the economic evidence was prepared and presented. [27] As I have already said, I do not think the learned trial judge erred in rejecting the loss of income claim based on the plaintiff's alleged ability to become a medical practitioner. That claim was just too speculative. I am also of the view that the plaintiff's claim for lessened opportunity to form a permanent interdependent relationship with a medical practitioner must also fail for the same reason. [28] There is however evidence on which an award under this head can be supported. In his second report, 27 April, 1994, Dr. Pulos said: A basic rule of thumb re self-esteem is that "like attracts like". In other words - you will not find a person with a high sense of personal

worth marrying someone with low self-esteem. Thus - in view of the psychological profile I described in my report - Candi will gravitate to someone who she perceives as "similar" to herself. Since feelings of being unworthy, undeserving or being "flawed" in some way are the corner stones of self-esteem (self-estimate) - Candi will quite likely end up or be with someone who doesn't have the confidence ability or drive to excel except at the lower end of occupational positions. [29] To the extent that the plaintiff's injuries impair her ability to achieve her own economic potential, so will she be less likely to meet and form a relationship with a person who will achieve the economic level of the plaintiff's pre-accident potential. [30] It is convenient here to consider the plaintiff's motion to adduce fresh evidence, which was opposed by counsel for the defendants. The evidence at trial in November 1996 was that the plaintiff was engaged to be married to her "live-in boyfriend" in August, 1997. Counsel now puts forward the plaintiff's affidavit in which she swears that that relationship ended on 26 December, 1996. There was no evidence as to why the relationship ended, or as to whether any new relationship has commenced. Nor is there any explanation as to why there was no attempt to bring this development to the attention of the learned trial judge before he delivered his

reasons on 20 February, 1997. [31] In my view, the proffered evidence does not meet the test for admission as fresh evidence, primarily because it is far from determinative of the issue on which it is tendered. Whether the plaintiff married her former boyfriend, or not, does not assist in deciding whether her opportunities for an economically advantageous permanent interdependent relationship were impaired by her injuries. Such a loss might well have been suffered by her even if she had married her former fianc‚. [32] Without reference to the "fresh evidence", however, the evidence does support some modest award under this head. Though physical appearance is never the measure of a person, we unfortunately do live in a society which puts a premium on physical appearance. The effect that disfigurement has on one's ability to achieve an economically advantageous permanent interdependent relationship is regrettable but nonetheless real due to the social mores governing the process of finding a mate. A damage award in this respect compensates the plaintiff for this diminished ability to operate within the sphere of social values that render physical appearance an asset of sorts. Because of the pressure such a premium puts on women the plaintiff has emotional scars which will also make it more difficult for her to meet new people, and which will inhibit her socially, and deter her

from risking failure in new ventures. Those factors all support the plaintiff's claim that she is impaired in her ability to meet and form an economically advantageous permanent interdependent relationship with another person. [33] As with the claim for loss of capacity to earn income, the difficulty comes in quantifying the loss suffered under this head. Recognizing the difficulties of demonstrating the correctness of any award for future economic losses, acknowledging that the matter is essentially a matter of judgment based on experience, and for those reasons approaching the matter conservatively, I would award damages for future economic losses in the total sum of $165,000, including $150,000 for impaired capacity to earn income, and $15,000 for impaired ability to form an economically advantageous permanent interdependent relationship. This amount is so much greater than the award made by the learned trial judge as to make it apparent that in my view his award was inordinately low. III THE CROSS-APPEAL [34] The defendants say the award of $170,000 for non-pecuniary damages is of a magnitude reserved for serious brain or spinal cord injuries, and is out of all proportion to the losses suffered by the plaintiff in this case. Counsel argued the award should be reduced to something in the vicinity of $80,00- $100,000 relying on Boskovic v. Cassady (August 20, 1990), Vancouver

Registry No. B872082 (S.C.) and Gamache v. Warman et al (November 3, 1993) Kamloops Registry No. 16511 (S.C.) where awards of $80,000 and $85,000 respectively were made for non- pecuniary damages in burn cases. Counsel for the plaintiff says the award for non-pecuniary damages should not be varied. She points to the evidence concerning the extraordinary pain suffered by the plaintiff at the age of nine, and subsequently, the necessity of a pressure mask covering her face and neck for three years, the nine or ten surgical procedures and skin grafts performed to improve neck movement and the appearance of her scars, and the serious permanent cosmetic disfigurement and psychological scarring that have resulted. Counsel also points out the advantage which the learned trial judge had in observing the scarring, and in hearing the plaintiff's testimony, first hand. [35] I have not been persuaded that the award for non-pecuniary damages is too high. The maximum award for non-pecuniary damages now, based on the $100,000 ceiling set in 1978 by the Supreme Court of Canada, is about $250,000. The learned trial judge's award while large, is substantially less than the maximum award presently available, and in my view is appropriate compensation for the grievous injuries suffered by the plaintiff. IV [36] I would allow the plaintiff's appeal for future economic loss by substituting an award of $165,000 for the trial judge's award of $26,000. I would dismiss the cross-appeal. "The Honourable Mr. Justice Finch" I AGREE: "The Honourable Mr. Justice Hinds" I AGREE: "The Honourable Madam Justice Prowse"