Davies v. Penner

2023 BCCA 300 Davies v. Penner

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Davies v. Penner, 2023 BCCA 300 Date: 20230727 Docket: CA48046 Between: John Charles Davies Appellant (Defendant) And Kathleen Penner Respondent (Plaintiff) Before: The Honourable Justice Dickson The Honourable Mr. Justice Butler The Honourable Justice Skolrood On appeal from: An order of the Supreme Court of British Columbia, dated January 7, 2022 (Penner v. Davies, 2022 BCSC 13, Kelowna Docket M120775). Counsel for the Appellant: R.C. Brun, K.C. J.J.L. Brun, K.C. Counsel for the Respondent: B.E. Fitzpatrick Place and Date of Hearing: Vancouver, British Columbia April 5, 2023 Place and Date of Judgment: Vancouver, British Columbia July 27, 2023 Written Reasons by: The Honourable Mr. Justice Butler Concurred in by: The Honourable Justice Dickson The Honourable Justice Skolrood Summary: The appellant appeals the loss of future income award made to the respondent at trial. He argues that the trial judge erred in applying the three-step process set out in Rab v. Prescott, 2021 BCCA 345, for the assessment of loss of future earning capacity where the evidence indicates that a plaintiff has suffered no loss of income at the time of trial. He submits that the judge erred at each step of the analysis and that no award, or a much reduced award, should have been made for loss of future income. Held: Appeal allowed in part. The judge did not

err in concluding that the respondent had proven a chronic injury, a potential future event that could lead to a loss of capacity. In addition, the judge did not err in concluding that the evidence established a real and substantial possibility that the future event could cause a pecuniary loss. However, the judge made a material error of fact in assessing the likelihood and value of the future loss, which impacted her assessment of what a fair and reasonable award should be. The Court substitutes an award of $55,000, representing one year of lost income for the loss of future earning capacity. Reasons for Judgment of the Honourable Mr. Justice Butler: Introduction [1] This appeal arises from a September 22, 2016 motor vehicle accident that took place near Prince George, British Columbia. The respondent, Kathleen Penner, was injured when her car was rear-ended by a vehicle operated by the appellant, John Charles Davies. Mr. Davies admitted liability for the accident. [2] Following a four-day trial, the trial judge awarded Ms. Penner a total of $152,611.06 in damages (reasons for judgment indexed as 2022 BCSC 13). Mr. Davies appeals only the judge's award of $82,000 for loss of future earning capacity. [3] The assessment of loss of future earning capacity remains one of the more challenging issues facing trial courts in personal injury actions. This is particularly so where the

plaintiff has an established career and has experienced no loss of income at the time of trial. In Rab v. Prescott, 2021 BCCA 345, Justice Grauer reviewed the jurisprudence of this Court in an effort to clarify "apparent confusion" in this area of the law and set out a three-step process for considering claims for loss of earning capacity. Notwithstanding the clarification of the law, this Court continues to hear numerous appeals challenging trial awards for future income loss as that assessment remains a notoriously difficult task. [4] In making the future loss award, the trial judge referred to Rab and other recent decisions of this Court and undertook the three-step process. Mr. Davies argues that the trial judge erred at each stage of the process and that the amount awarded is neither fair nor reasonable. He submits that the trial judge erred in finding that Ms. Penner had established the existence of a potential future event that could lead to a loss of capacity or that there was a real and substantial possibility that the future loss of capacity would result in pecuniary loss. Finally, he challenges the trial judge's valuation of the potential future loss. The respondent argues that the award was correct, fair and reasonable in the circumstances. [5] For the reasons that follow, I am of the view that the judge did not err in identifying a future event that could lead to a

loss of capacity or in concluding that there was a real and substantial possibility that loss could result in a pecuniary loss. However, I would find that the judge erred in valuing that loss. I would set aside the award of $82,000 and substitute an award of $55,000 for the loss of capacity. Background [6] Ms. Penner was 53 years old at the time of the accident. She suffered injuries to her left shoulder and shoulder blade, upper arm, and neck. After the accident, Ms. Penner missed about a month of work because of the injuries suffered in the accident. She testified at trial, five years later, that her injuries persisted and continued to impact her ability to function at work. She continued to experience pain in the left side of her neck, shoulders and upper back which was exacerbated by some of the tasks required to operate a bus. Nevertheless, after returning to full-time duties, Ms. Penner missed no work as a result of the injuries suffered in the accident. [7] Ms. Penner started working as a bus driver for her current employer, Prince George Transit, in 2008. She had previously worked as a school bus driver for other employers on a part-time basis. The physical components of her job include steering (requiring a hand-over-hand motion), operating air and emergency brakes, opening and closing bus doors by pulling and pushing a handle, and using an overhead handheld radio.

Prior to the accident, Ms. Penner performed her full-time duties with no difficulty and acted in a supervisory role. As of the date of trial, Ms. Penner was described by her co-worker and supervisor as an excellent and dependable employee. [8] After the accident, she modified the way in which she performed certain tasks because of her injuries. At times, she shuffles her hands to move the steering wheel, rather than lifting and crossing her arms, and has driven with one hand (except around corners). She uses her right arm to operate the brake and door handles even though it is more efficient to use her left arm. Ms. Penner reported to one of the medical experts that her "pain interference score" was zero, and that she was functioning at about 90% of her pre-accident level. She testified that she was able to do all of her job duties and as much work as she wanted. However, she also testified that the pain from her injuries impacted her mood, causing her to be frustrated, short with people, and "at the end of [her] rope" by the end of the work week: at para. 28. [9] Before the accident, Ms. Penner maintained an active lifestyle. After returning to work, she continued to pursue the same recreational activities she had enjoyed before the accident. Although she was able to kayak, swim and hike as she had done before the accident, she testified that her neck and shoulder pain

impacted her enjoyment of those pursuits. [10] Two medical experts gave evidence--Dr. Gurpreet Palak for the respondent, and Dr. Steven Baker for the appellant. The judge noted the overlap between the doctors' opinions--both agreed that their objective findings supported Ms. Penner's complaint of ongoing neck, shoulder and upper back pain. Both attributed those symptoms to the accident. Both agreed that with a treatment plan, Ms. Penner's prognosis was "reasonably favourable": at para.

47. Trial reasons [11] The judge found that Ms. Penner was a credible and reliable witness. She accepted Ms. Penner's sister's evidence that Ms. Penner "does not complain and keeps things close to her family and friends". [12] The judge assessed non-pecuniary damages at $60,000. That award is not challenged on appeal. However, some of the facts found by the judge to support that award are relevant to the issues on appeal. [13] The judge accepted that Ms. Penner's injuries negatively affected her, both recreationally and at work. She found that Ms. Penner's low self-reported pain scores did not mean that her pain had resolved, but rather reflected "the fact that she was not in pain 100% of the time": at para.

78. She held that the fact that Ms. Penner had not missed any work apart from an initial month was attributable to her dedication to her job, and the unavailability of part-time work with her employer. [14] The judge accepted Ms. Penner's evidence that aspects of her work exacerbated her injuries. She noted that the cautiously optimistic prognosis of both experts was dependent on an untested treatment plan, and left open the possibility that Ms. Penner's symptoms might not significantly improve. She quoted para. 41 of Morlan v. Barrett, 2012 BCCA 66, to the effect that continuous pain can take a toll over time, and have a detrimental effect on a plaintiff's ability to work: at para.

85. Loss of future earning capacity [15] The judge followed the three-step process set out at para. 47 of Rab for assessing a claim for loss of future earning capacity. [16] At step one, the judge determined that the evidence disclosed a potential future event that could lead to a loss of capacity. She noted that Ms. Penner's pain is chronic, and her injuries may persist. She cited Morlan, and held that as a matter of "common sense", Ms. Penner's pain and limitations "may have a detrimental effect on her ability to work": at para.

96. She held that while Morlan was not identical to this case, it was similar in that neither plaintiff had a prognosis of full recovery. The judge accepted that Ms. Penner's work exacerbated her symptoms. She held that if this continued, Ms. Penner's pain "may further affect her ability to perform her work functions": at para. 97. [17] At step two, the judge found that there was a real and substantial possibility that the potential future event would cause a pecuniary loss to Ms. Penner, by preventing her from working until age 67. The judge noted that neither expert opined that Ms. Penner's symptoms would resolve, only that they may improve. The judge held that Ms. Penner's injuries had rendered her less valuable as a person capable of earning income as a bus driver. She found that Ms. Penner was unable to function as a bus driver as she did before the accident, and that there was a possibility she might not regain that capacity. The judge was satisfied that there was a real and substantial possibility that Ms. Penner's continuing pain would preclude her from working on a full-time basis, thereby causing pecuniary loss. [18] At step three, the judge took a "capital asset" approach to assessing the value of the possible future loss. She took four considerations into account in assessing a proper award (at para. 115): a) But for the accident, Ms. Penner would have worked until

she was 67, to maximize her pension benefits; b) No part-time positions or accommodations were available to Ms. Penner; c) Being unable to perform her job full-time would result in Ms. Penner losing her income as a bus driver, and negatively impact her pension entitlement; and d) Ms. Penner's prognosis was "reasonable" if she responded to the "untested treatment plan" endorsed by the two doctors (a positive contingency). [19] The judge awarded one and a half years' income to Ms. Penner, resulting in an award of $82,000. The judge noted that her assessment took into account both positive and negative contingencies, and found that the outcome was fair and reasonable in the circumstances. Issues on appeal [20] The appellant argues that the judge erred in: a) Finding that there was a potential future event that could lead to a loss of capacity; b) Finding that there was a real and substantial possibility the potential future event would cause pecuniary loss to the respondent; c) Assessing the value of the possible future loss at $82,000; and d) Concluding that the award for loss of future earning capacity was fair and reasonable in the circumstances. Law Standard of review [21] The standard of review applicable to a trial judge's findings of fact is palpable and overriding error. This also applies to inferences drawn from the underlying facts: Housen v. Nikolaisen, 2002 SCC 33 at

paras. 19-23. However, where the error alleged is the application of a legal standard to a set of facts, the standard of review depends on whether the error alleged is a failure to apply the correct legal standard (subject to a correctness standard of review) or an error of mixed fact and law (subject to the higher standard of palpable and overriding error): Housen at paras. 27-28. [22] An appeal court cannot interfere in a damage award simply because it would have come to a different conclusion on its view of the evidence. Rather, the court is entitled to intervene where "there was no evidence upon which a trial judge could have reached this conclusion, or where he proceeded upon a mistaken or wrong principle, or where the result reached at trial was wholly erroneous": Woelk v. Halvorson, [1980] 2 S.C.R. 430 at 435; Rab at para. 22. [23] The appellant contends that the judge erred by applying the wrong legal standard to the facts found, by misapprehending material portions of the evidence, and by drawing erroneous conclusions from the evidence. In other words, he submits that the judge made errors that are reviewable on both standards. The respondent submits that the appellant's arguments raise questions of mixed fact and law and that the appropriate standard of review is that of palpable and overriding error. [24] I am of the view that all of the grounds of appeal allege

errors of fact or mixed fact and law to which the deferential standard of review of palpable and overriding error applies. As will be apparent, I have considered the third and fourth grounds of appeal together. Loss of future earning capacity [25] An award for loss of future earning capacity is intended to return the plaintiff to the position they would have been in, had they not been injured: Athey v. Leonati, [1996] 3 S.C.R.

458. The court must compare the likely future of the plaintiff's working life without the injury to their likely future working life with the injury: Rab at para.

65. The three-part test set out in Rab, at para. 47, involves two inquiries and an assessment: a) Whether the evidence discloses a potential future event that could lead to a loss of capacity; b) Whether, on the evidence, there is a real and substantial possibility that the future event in question will cause a pecuniary loss; and, if a real and substantial possibility exists; c) Assessing the value of that possible future loss, which must include assessing the relative likelihood of the possibility occurring--see the discussion in Dornan at paras. 93-95. [26] The first step is "evidentiary". Where the evidence indicates no loss of income at the time of trial, a number of considerations are relevant to the question of whether there is an impairment of capacity: Rab at para. 36, referring to Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 8 (S.C.): 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. In Rab, Justice Grauer specifically recognized "chronic injury,

future surgery or risk of arthritis" as circumstances that could give rise to a potential future event based on the considerations set out in Brown: at para. 47. [27] The second step requires a trial judge to consider whether, on the evidence, there is a real and substantial possibility that the future event in question will cause a pecuniary loss. A real and substantial possibility is a higher bar than mere speculation, but does not require proof on a balance of probabilities: Gao v. Dietrich, 2018 BCCA 372 at para.

34. A finding of diminished earning capacity at the first stage does not necessarily mean that there is a real and substantial possibility that the plaintiff's diminished capacity will lead to a pecuniary loss in their particular circumstances: Rab at para. 44; Bains v. Cheema, 2022 BCCA 430 at para.

22. The inquiry must be answered based on the whole of the relevant evidence. [28] The final step is assessing the value of the possible future loss. This must include assessing "the relative likelihood of the possibility occurring": Rab at para.

47. There are two ways to quantify a loss of future earning capacity; the earnings approach and the capital asset approach. Generally, cases where plaintiffs' injuries have exposed them to future loss of capacity but their income at trial is at or near their pre-accident level of earnings, lend themselves to the capital asset approach: Rab at para. 30; Kringhaug v. Men, 2022 BCCA 186 at para.

43. Depending on the particular circumstances, there are a number of methods by which the court can assess loss of future earning capacity based on the capital asset approach: Pallos v. Insurance Co. of British Columbia (1995), 100 B.C.L.R. (2d) 260 at para. 43 (C.A.). Analysis Parties' arguments [29] The appellant says that the judge's finding of a potential future event that could lead to a loss of capacity was speculative. He points out that the respondent has fulfilled her job duties for over five years without taking time off work due to her injuries. He argues that there was no evidence her condition would deteriorate, and that her prognosis was in fact somewhat favourable. He points out that she testified that she intended to continue working in her current job until age 67. [30] The appellant also says that even if there was a real and substantial possibility of a future event leading to a loss of capacity, there was no evidence to support the respondent's contention that she would suffer a pecuniary loss. The appellant emphasizes that both doctors gave Ms. Penner a somewhat optimistic prognosis. He points out that Ms. Penner is a model employee whose work performance has not been impacted by her injuries. [31] The appellant also argues that the trial judge erred in assigning any value to the possible future loss. First, he argues that Ms. Penner will continue in her

current employment on a full-time basis. Second, he says there was no evidence that she was interested in or looking for any other job opportunities. He argues that she gave evidence at trial that she could perform her job up till her intended retirement age of 67. [32] Finally, the appellant says that the judge's award of damages was neither fair nor reasonable. [33] The respondent says that the trial judge correctly found that she had reduced capacity to perform the duties of her current job. She points out that the trial judge found that further recovery was possible, but that her pain was chronic and the outcome of any additional treatment was uncertain. The respondent cites Morlan and says that, given the impact of her symptoms on her ability to function at work, it is a matter of common sense that she is likely to encounter increasing difficulty in performing her job functions as she ages, resulting in pecuniary loss. The respondent also argues that the logic employed by the trial judge to value the potential loss was sound and that the award was fair and reasonable. Was there a potential future event that could lead to a loss of capacity? [34] The first two grounds of appeal ultimately challenge conclusions drawn by the judge based on findings of fact. Those conclusions underpin her analysis of the possibility of a future event leading to a loss of capacity and whether

there was a real and substantial possibility the future event would cause pecuniary loss to the respondent. In my view, the appellant's arguments on these grounds of appeal founder on his challenge to the judge's factual findings. The judge's findings have a sound evidentiary basis and support her conclusions on the first two steps of the analysis. [35] The appellant is critical of the judge's failure to consider the respondent's largely uninterrupted work history. This argument is without merit as the judge explicitly acknowledged the plaintiff's work history, including the fact that she continued to work full-time at her job. The judge did not accept the appellant's contention that the respondent's work history reflected "the minimal impact of her injuries": at para.

79. Rather, the judge found that aspects of Ms. Penner's work, including turning the steering wheel and using her left hand to operate the air brake, exacerbated her symptoms. The judge concluded that Ms. Penner was able to work through the pain and discomfort by employing accommodations and because of her dedication to her job. [36] The judge also accepted that the respondent had chronic pain. This is not surprising given the medical evidence. The appellant notes that neither of the medical experts opined that the respondent's condition would deteriorate and asserts that the judge ignored or failed to give weight to that evidence. However, the judge explicitly acknowledged both medical experts' cautiously optimistic prognoses: Dr. Baker opined that Ms. Penner's prognosis was "at least reasonable"; and Dr. Palak stated that "further improvements in her symptom management may be made if the recommended treatment is undertaken": at para.

100. She correctly noted that these were dependant on an untested treatment plan and, accordingly, left open the possibility that Ms. Penner's symptoms might not significantly improve: at para.

83. In doing so, she noted that the respondent had followed the treatment first recommended by both doctors, which had not resolved her chronic pain. The judge further observed that neither doctor opined that the respondent's symptoms would resolve. [37] The appellant contends that the judge failed to properly consider Ms. Penner's evidence that she intended to work until age 67 in order to maximize her pension entitlement. This argument focuses on only one part of the respondent's evidence, and the judge clearly considered the whole of her evidence. The judge acknowledged Ms. Penner's stated intention to work until 67, but also that her work duties were causing soreness in her neck and shoulder. Ms. Penner testified that she "work[ed] through it", not because her pain was insignificant but because there was no relief available. She had to do her job, and it was not an option for her to stop work and go home. The question before the judge was essentially whether, despite Ms. Penner's intention, there was a real and substantial possibility that her injury would prevent her from working until age 67. [38] In short, the judge made critical findings of fact that were open to her on the evidence. These findings then informed the Rab analysis. The judge found that Ms. Penner experiences chronic pain which affects her ability to perform tasks required for her work. While she had been able to work through the pain because of her dedication, she did so by making accommodations. The pain affects her mood and the judge accepted that at the end of a week of work, she is "at the end of [her] rope": at para.

28. The judge found that the chronic pain symptoms would not resolve and may not significantly improve. Having made those findings, the question is whether it was possible for her to infer that the respondent had established: i. The possibility of a future event that could lead to a loss of capacity; and ii. A real and substantial possibility that the potential future event would cause pecuniary loss to the respondent. [39] The key question at the first stage of the Rab analysis is whether the evidence discloses a potential future event that could give rise to a loss of future earning capacity: Rab at para.

47. The potential future event identified by the judge was the continued existence of the respondent's chronic pain, leading to a loss of capacity as she ages. [40] In concluding that the respondent had established the existence of such a potential future event, the judge relied on Morlan. In that case, the trial judge had taken into account the "common experience" that a person with a stable but persistent energy draining condition will find it more difficult to continue working as they age. This Court upheld the trial judge's conclusion that chronic pain may, over time, affect a person's ability to continue to work: [41] Accepting that, to use the expression used at trial and at the hearing of this appeal, Ms. Morlan's condition had "plateaued", the fact remains that she would forever suffer from debilitating chronic pain along with headaches, symptoms that could be reduced, but not eliminated, by medication. In other words, throughout each and every day of her life, Ms. Morlan would have to cope with some level of discomfort. In my view, it was open to the trial judge to find -- essentially as a matter of common sense -- that constant and continuous pain takes its toll and that, over time, such pain will have a detrimental effect on a person's ability to work, regardless of what accommodations an employer is prepared to make [Emphasis added.] [41] The appellant argues that

this reliance is misplaced because in this case, in contrast to Morlan, there was no evidence that Ms. Penner's condition had plateaued or would deteriorate. Indeed, the evidence suggested possible improvement. [42] I do not agree that the judge made any error in deciding that Ms. Penner's continuing chronic pain may lead to a loss of capacity as she ages. All a plaintiff must prove is the potential of a future event. A chronic injury--one that continues to affect function--may suffice as a condition that can lead to such a future event: Rab at para. 47. [43] The judge considered the respondent's evidence as well as the medical evidence and did not ignore the differences between this case and the findings in Morlan. The judge found that the pain and limitations suffered by Ms. Penner, which had persisted for five years, took a toll on her and may have a detrimental effect on her future ability to work: at para.

96. She acknowledged that Ms. Penner had a more optimistic prognosis than the plaintiff in Morlan, but held that the cases were similar in that neither plaintiff had a prognosis of full recovery. The judge found that if Ms. Penner's pain continued, it might "further affect her ability to perform her work functions" and that this was sufficient to satisfy the first step in the Rab analysis: at para.

97. The judge did not err in her consideration of Ms. Penner's symptoms, their interaction with her work duties, and the potential for a future loss of capacity based on the inference, similar to that made in Morlan, that the toll taken by chronic pain over time could reduce her capacity to work. [44] Having affirmed the judge's conclusion in this case, I must emphasize that the fact that a claimant experiences chronic pain does not, on its own, satisfy the first step in the Rab analysis. There is no "common sense" inference that can be drawn from the mere existence of chronic pain. It is only possible for a judge to draw an inference based on all of the medical and lay evidence about the nature and extent of a claimant's injuries, the claimant's circumstances, and the impact that work has on their ability to function. In my view, the judge did just that; she drew that conclusion only after considering the available evidence. Was there a real and substantial possibility the potential future event would cause pecuniary loss to the respondent? [45] The judge held that, as in Tannberg v. Hare, 2021 BCSC 30, Ms. Penner's injuries to her neck, shoulders and back rendered her less valuable as a person capable of earning income as a bus driver: at para.

106. She noted that Ms. Penner was not able to function as a bus driver in the same way as she did before the accident, and that there is a possibility that she will not regain that capacity: at para.

106. She was satisfied that "the possibility that Ms. Penner's continuing pain will preclude her from working on a full-time basis, thereby causing a pecuniary loss" was real and substantial: at para. 108. [46] Some of the trial judge's statements blur the question of loss of capacity, and the question whether that loss of capacity will result in pecuniary loss. She refers to Ms. Penner being less valuable as a person capable of earning income as a bus driver, and her current loss of capacity. However, the current impacts of Ms. Penner's injuries on her ability to perform the duties of a bus driver have not resulted in any pecuniary loss. In short, the judge's reasoning at para. 106 in particular, appears to reflect the error referred to in para. 33 of Rab. [47] Nonetheless, the remainder of the judge's reasons support her finding of pecuniary loss. The judge held that there was a real and substantial possibility that Ms. Penner's continuing pain (exacerbated by her job duties), as she gets older, may preclude her from working in her current position as a bus driver. This potential future event (identified by the trial judge at the first stage of the Rab analysis) is thus directly tied to a specific pecuniary loss (Ms. Penner's income as a bus driver). I have already explained that the judge did not err in her findings of fact regarding the severity of Ms. Penner's injuries,

their exacerbation by Ms. Penner's job duties, and her prognosis. Based on those findings, the possibility that Ms. Penner will be unable to work as a bus driver (and thus lose her income) as she gets older, due to her continuing pain, is clearly real and substantial as opposed to speculative. Did the judge err in assessing the value of the possible future loss at $82,000, and by concluding that award was fair and reasonable in the circumstances? [48] As explained in Rab, the key considerations at the third step of the analysis are assessment of the relative likelihood of the loss and of the reasonableness of the award: at paras. 47, 55. As I will explain, I am of the view that the judge made a material error of fact in assessing the likelihood and value of the future loss that impacted her assessment of what a fair and reasonable award should be in these circumstances. [49] The judge decided to utilize the "rough and ready estimate" approach described in Pallos because of the difficulty in assessing the appropriate amount for an award to compensate for the loss of diminishment of the respondent's capital asset. In Rab, the Court endorsed that approach for cases where a plaintiff continues to earn income at or close to his or her pre-accident level, but has suffered an impairment that may affect their ability to continue to do so in the future: at para.

72. I agree that this approach is appropriate for the circumstances of this case. [50] The judge set out four circumstances she considered in arriving at the award which represents one and a half years of Ms. Penner's annual income: · Ms. Penner had nine years of work left before her anticipated retirement at the age of 67 years; · no part-time positions are available so an inability to work will mean losing her job altogether; · an inability to work will affect her pension entitlement which will decrease by six percent each year that she retires early; and · the chance that she may respond to the treatment plan endorsed by both experts requires application of a positive contingency. [51] The second of these considerations is not borne out by the evidence. It is correct that her current employer does not have part-time positions for bus drivers, but not that there are no part-time positions available for bus drivers in Prince George. Indeed, the evidence established that Ms. Penner had previously worked part-time as a school bus driver for two other employers and that those employers typically employ drivers for 20 hours per week. [52] The judge's perception that the respondent would have no ability to work part‑time if her pain reached the point that she could not work full-time, was material to her assessment of both the likelihood and the value assigned to Ms. Penner's

potential loss of her capital asset. It affected her assessment of the likelihood that she would suffer a future loss because the perception that she would be unable to work part-time necessarily led the judge to draw the inference that it was more likely that she would stop working because of the chronic pain. For obvious reasons, it also affected the judge's assessment of the value of the loss because if the respondent is able to continue working on a part-time basis, it would reduce the total amount of her loss. In short, it is my view that the judge's erroneous perception that the respondent had to work full-time as a bus driver, or not at all, was an overriding error. Further, that error led the judge to make an award that was not fair and reasonable considering the relevant circumstances. [53] Having concluded that the judge made a palpable error of fact that led to a loss of capacity award that was not fair and reasonable, it is possible for this Court to apply the Pallos approach and substitute a proper award consistent with the evidence and the other findings of fact: Rab at para.

77. Taking that approach, I would award one year of income loss, $54,519, which I would round to $55,000. In my view, that award is fair and reasonable considering the other facts found by the judge, but accepting that the likelihood of the respondent being unable to work at all is significantly less than what the judge inferred. [54] In my view, that assessment fairly takes into account the evidence of Ms. Penner's chronic pain, but also recognizes the limited degree to which it has impacted her to the date of trial. She did not miss any work in the five years before trial, was able to do as much work as she wanted, and could perform all of her job duties. It also recognizes that, at the time of trial, Ms. Penner continued to be regarded as a model employee and was the only driver/trainer for the company. The vocational impairment that she has experienced contrasts favourably with the degree of impairment found in Morlan, and other trial decisions relied on by the respondent (e.g., Guthrie v. Narayan, 2012 BCSC 734, Merko v. Plummer, 2016 BCSC 1403 and Dzumhur v. Davoody, 2015 BCSC 2316). Most significantly, it also accounts for the fact that part-time work with other employers is available to her if her chronic pain would not permit full-time work. Given that Ms. Penner intends to work for only nine more years, the availability of part-time work reduces the likelihood of her

inability to work at all, and the value of her potential loss. [55] In summary, it is my view that the sum of $55,000, representing one year of lost income, is a fair and reasonable award for the loss of future earning capacity. Disposition [56] I would allow the appeal, but only to the extent of setting aside the award of $82,000 for loss of future earning capacity and would substitute an award of $55,000. "The Honourable Mr. Justice Butler" I AGREE: "The Honourable Justice Dickson" I AGREE: "The Honourable Justice Skolrood"