Cleary v. Courtney

Date: 20100721 Docket: 09/85 & 09/89 Citation: Cleary v. Courtney, 2010 NLCA 46 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: PETER J. CLEARY APPELLANT AND: BASIL J. COURTNEY RESPONDENT Coram: Green, C.J.N.L., Cameron and Mercer, JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division, 200001T2739 Appeal Heard: March 16 & 17, 2010 Judgment Rendered: July 21, 2010 Reasons for Judgment by Cameron, J.A. Concurred in by Green, C.J.N.L. Dissenting Reasons (in part) by Mercer, J.A. Counsel for the Appellant: Irene S. Muzychka and Liam P. O’Brien Counsel for the Respondent: David P. Goodland Page: 2 Cameron, J.A.: [1] The appellant (a physician) accepts the finding of the trial judge that he breached his duty of care to the respondent (his patient). He maintains, however, that the trial judge erred when she held that the breach of the duty of care caused the respondent to have to undergo, in May 2000, a more radical surgical procedure than would have been necessary had he undergone surgery in October 1999. In addition to a reversal of the finding of causation the appellant seeks consequent changes in the trial judge’s order respecting damages. [2] Alternatively, if this Court upholds the decision of the trial judge regarding causation, the appellant submits that the trial judge nevertheless made certain errors in the assessment of damages. [3] The respondent cross-appeals from the trial judge’s decision to limit pre-judgment interest on past earnings loss. Background [4] The respondent, Mr. Courtney, had been a patient of the appellant, a general practitioner, for many years before the events giving rise to this case. The relevant consultations occurred on: July 9, 1999 August 25, 1999 September 13, 1999 January 27, 2000 April 6, 2000. [5] On July 9, 1999, the respondent complained to the appellant, Dr. Cleary, of pain in the mouth, under his tongue, and pain in his ear. Doctor Cleary examined the respondent’s ear and found it to be normal. He found an ulcer under the respondent’s tongue which he diagnosed as an apthous ulcer. He prescribed medication and advised the respondent to return if the ulcer did not heal. The respondent described the ulcer as feeling like sandpaper and being a little smaller than the tip of his little finger, while the appellant recalled it as being approximately 1 cm long, .2-.3 cm wide and Page: 3 less than a millimeter deep. The appellant did not palpate the area during the July visit, or during any of the subsequent visits. [6] On August 25, 1999, the appellant did not record the dimensions of the ulcer. The respondent recalled that it had gotten bigger and the pain was worse. The appellant noted, on the respondent’s chart, a dental abscess. He prescribed Atasol 30s for pain and an antibiotic. [7] On September 13, 1999, the ulcer observed by the appellant was described by him as being larger and deeper than the one he had seen in July. Once again, the respondent was treated for an apthous ulcer, though the appellant stated that “it wasn’t classically apthous anymore.” On that occasion, the appellant noted on the respondent’s chart: “?? biopsy”. However, he did not order a biopsy. He did advise the respondent to see a dentist. [8] In December 1999 the respondent visited a dentist and had four teeth removed. The dentist did not record any observation about an ulcer but he did say that the respondent’s oral condition was rather broken down. [9] On January 27, 2000, the respondent visited the appellant again. The note on the chart refers to apthous ulcer and, once again, the appellant prescribed anti-inflammatory medication and pain killers. [10] On March 22, 2000, because of pain, the respondent went to the emergency department of G.B. Cross Memorial Hospital in Clarenville. He was advised to see a dentist immediately. On April 4, 2000 the respondent consulted Dr. Rice, the same dentist he had seen in December. Dr. Rice, on examination of Mr. Courtney’s mouth, suspected carcinoma and referred the respondent to an oral surgeon. It was the oral surgeon, Dr. Wright, who performed a biopsy (April 10, 2000) and who, on receipt of the pathology report showing positivity for squamous cell carcinoma, advised the respondent of the results and referred him to the Dr. H. Bliss Murphy Cancer Centre, where he was seen on May 2, 2000. On clinical examination, supported by a CT scan and bone scan, the treating team made a clinical diagnosis of a T-4 tumour1 with involvement of one lymph node and the mandible. 1 The clinical team not only considers the diagnosis of carcinoma but also classifies the stage or progression of the disease. A T-1 tumour (stage 1 tumour) would indicate the earliest stage. Page: 4 [11] In the meantime, on April 6, 2000, prior to the biopsy, the appellant once again saw the respondent and once again prescribed medication. The appellant did note on the respondent’s chart that the respondent was to see an oral surgeon. [12] On May 5, 2000 the respondent underwent a composite resection of the oral cavity lesion and mandible and a partial mandiblectomy with bilateral neck dissections, referred to as the “commando procedure”, and surgical reconstruction. This was followed by radiotherapy. A subsequent pathology report concluded that there was no malignancy of the mandible or lymph nodes and the lesion was at the high end of T2 - almost T3. [13] As acknowledged by the appellant, the trial judge’s finding was that the appellant had breached his duty of care as of September 13, 19992. The finding was based on the appellant’s failure to take certain action, including the failure to properly examine the respondent’s mouth, and his failure to refer the respondent for a biopsy in the face of a diagnosis of an apthous ulcer which had not healed in a period of two months. [14] The trial judge then turned her attention to causation. She found that if the respondent had been referred for a biopsy on September 13, 1999, as he ought to have been, treatment could have begun by mid-October. She added: 158 … I am not prepared to infer that Mr. Courtney’s tumor size advanced beyond a stage 1 tumor at that time because the evidence is that the tumor was growing moderately if not slowly, and it had not grown so large as to be identified by Dr. Rice in December 1999. Evidence as to what the precise size of the tumor would have been at the time [of] treatment in mid-October 1999 is not available due to Dr. Cleary’s failure to refer his patient. In these circumstances, it would be perverse to infer that the size of the tumor was greater than a stage 1 at that time. 159 Accordingly, I find that the tumor in Mr. Courtney’s mouth when he would have been treated in mid-October 1999 was a stage 1 tumor. Standards of Review [15] The standards of review applied by this Court were discussed in Ring v. Canada et al., 2010 NLCA 20, at para. 6: 2 Paras. 109 and 158. It is noted, however, that in para. 138, the trial judge refers to the appellant having failed to use the reasonable degree of skill and care expected of him in his treatment of the respondent on August 25, 1999. There are statements of a similar nature in paras. 114 and 118. However, on reading the whole of the decision it is clear that the trial judge proceeded on the basis that the breach of the duty of care was established as of the visit of September 13, 1999. Page: 5 The standard of review applied by an appellate court depends upon the nature of the matter being reviewed. A pure question of law is reviewed on a standard of correctness and an appellate court is free to replace the opinion of the trial judge with its own. Findings of fact, on the other hand, cannot be reversed unless the trial judge has made a palpable and overriding error. A determination of whether a legal standard was met involves the application of a legal standard to a set of facts which is a question of mixed fact and law. A question of mixed fact and law is subject to a standard of palpable and overriding error unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error in law and the applicable standard is correctness. These principles are well established: Housen v. Nikolaisen, [2002] 2 S.C.R. 235. Findings of credibility are part of the fact finding process and are subject to the same standard of review, as are inferences drawn from the facts. If inferences drawn by the trial judge are reasonable, an appellate court should not intervene just because other inferences could also have been reasonably drawn: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at para. 74. In H.L. v. Canada, paras. 55-56, Fish J. said: “Palpable and overriding error” is at once an elegant and expressive description of the entrenched and generally applicable standard of appellate review of the findings of fact at trial. But it should not be thought to displace alternative formulations of the governing standard. In Housen, for example, the majority … and the minority … agreed that inferences of fact at trial may be set aside on appeal if they are “clearly wrong”. Both expressions encapsulate the same principle: an appellate court will not interfere with the trial judge’s findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result. In my respectful view, the test is met as well where the trial judge’s findings of fact can properly be characterized as “unreasonable” or “unsupported by the evidence”. The standard of review of an assessment of damages was set out in Woelk v. Halvorson, [1980] 2 S.C.R. 430, at p. 435: It is well settled that a Court of Appeal should not alter a damage award made at trial merely because, on its view of the evidence, it would have come to a different conclusion. It is only where a Court of Appeal comes to the conclusion that 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 the trial was wholly erroneous, that a Court of Appeal is entitled to intervene. Page: 6 This Court has applied the Woelk approach on a number of occasions. See, for example, Reid et al. v. Joy et al. (1999), 181 Nfld. & P.E.I.R. 246, Wells and Augot v. Smith Young, 2007 NLCA 23, and Driscoll v. Morgan, 2007 NLCA 39. Causation The Issue [16] In his factum the appellant states the issue as: “Did the Learned Trial Judge make errors in law, mixed fact and law, and/or fact in determining that the Appellant’s negligence caused the Respondent’s injuries?” In oral submissions the appellant properly acknowledged that the trial judge correctly stated the test for causation and that it was open to her to draw an inference that the tumour was a T-1 tumour in October of 1999 – that is, that there was evidence from which the inference could be drawn. However, the appellant argues that the trial judge nonetheless erred because: 1. she gave undue consideration to the appellant’s breach of duty when deciding causation (at one point counsel suggested that the trial judge had reversed the onus of proof; at another that she was mixing breach of duty and causation); and 2. she did not consider contrary evidence relevant to the issue of tumour size in October, particularly that of Dr. Archibald. As to the tumour staging, the appellant submitted that the trial judge: 1. misunderstood the staging process and its significance for treatment; 2. drew unsupportable inferences as to the size of the tumour in September and October of 19993; 3. failed to consider the likelihood that there would have been a palpable [enlarged] lymph node in mid-October of 1999; and 4. failed to consider whether or not the mandible would have appeared to be involved in mid-October of 1999. 3 This submission is inconsistent with the concession that there was evidence from which the trial judge could draw an inference that the tumour was a stage 1, and consequently there is no necessity of addressing the point further. Page: 7 The Law [17] Causation was described by Justice Sopinka in Snell v. Farrell, [1990] 2 S.C.R. 311, para. 27 as follows: Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former. See also: Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333. [18] In Cottrelle v. Gerrard (2003), 178 O.A.C. 142, Sharpe J.A. said: … causation is established when the plaintiff proves, on a balance of probabilities, that the defendant caused or contributed to the injury. The generally applicable test is the “but for” test. This test “requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant.” [19] It is not enough to prove that proper diagnosis and treatment would have afforded a chance of avoiding the unfavourable outcome: Cottrelle, supra para. 25. See also: St-Jean v. Mercier, 2002 SCC 15. [20] In Athey and Leonati, [1996] 3 S.C.R. 458 Major J. said at para. 16: In Snell v. Farrell, supra, this Court recently confirmed that the plaintiff must prove that the defendant’s tortious conduct caused or contributed to the plaintiff’s injury. The causation test is not to be applied too rigidly. Causation need not be determined by scientific precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward, [1972] 2 ALL E.R. 475 at p. 490, and as was quoted by Sopinka J. at p. 328, it is “essentially a practical question of fact which can best be answered by ordinary common sense”. Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof. In Snell v. Farrell, Sopinka J. said of the relationship between drawing inferences and the burden of proof (p. 330): [33] … It is not strictly accurate to speak of the burden shifting to the defendant when what is meant is that evidence adduced by the plaintiff may result in an inference being drawn adverse to the defendant. Whether an inference is or is not drawn is a matter of weighing evidence. The defendant runs the risk of an adverse inference in the absence of evidence to the contrary. … [34] The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may Page: 8 be drawn although positive or scientific proof of causation has not been adduced. If some evidence to the contrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield’s famous precept. This is, I believe, what Lord Bridge had in mind in Wilsher when he referred to a “robust and pragmatic approach to the … facts”(p. 569). [35] It is not therefore essential that the medical experts provide a firm opinion supporting the plaintiff’s theory of causation. Medical experts ordinarily determine causation in terms of certainties whereas a lesser standard is demanded by the law. [21] In Aristorenas v. Comcare Health Services (2006) 83 O.R. (3d) 282 (Ont.C.A.), leave to appeal to the Supreme Court of Canada refused, [2006] S.C.C.A. No. 487, Rouleau J.A., for the majority, noted of the robust and pragmatic approach: 54 The “robust and pragmatic” approach is not a distinct test for causation but rather an approach to the analysis of evidence said to demonstrate the necessary causal connection between the conduct and the injury. Importantly, a robust and pragmatic approach must be applied to evidence; it is not a substitute for evidence to show that the defendant’s negligent conduct caused the injury. … 56 It is important to note that Sopinka J. does not reduce the ultimate burden of proof from a balance of probabilities. Rather, the “robust and pragmatic” approach is adopted in evaluating the facts of the case and deciding whether they meet the civil standard. Put another way, the burden of proof is the same, but a series of facts and circumstances established by the evidence led at trial may enable the trial judge to draw an inference even though medical and scientific expertise cannot arrive at a definitive conclusion. [22] Whether causation has been established is a question of fact, though the determination of what must be established is a question of law. The parties are agreed that the trial judge correctly stated the law. Consequently, to succeed the appellant must demonstrate that the respondent made a palpable and overriding error leading to her finding that causation had been established. Analysis [23] The trial judge described the requirements to be met by the respondent as follows, at paras. 144-145: Page: 9 In order for causation to be established, the Court must be satisfied on a balance of probabilities that Mr. Courtney’s cancer would have been diagnosed and treated earlier “but for” Dr. Cleary’s breaches of the standard of care and that Mr. Courtney would not have had the “commando” surgery and extensive radiation if his cancer had been diagnosed and treated earlier. … In order to connect Dr. Cleary’s negligence to Mr. Courtney’s damages, the Court must be satisfied that: (1) the lesion in Mr. Courtney’s mouth on July 9, 1999 was the same one removed from his mouth in May 2000; (2) a biopsy of this lesion after Mr. Courtney’s September 13, 1999 visit to Dr. Cleary would have been positive for carcinoma at that time; and (3) the treatment Mr. Courtney would have received had he been biopsed [sic] or referred for a second opinion after the September 13, 1999 visit would not have left him so damaged. [24] The appellant does not challenge the trial judge’s finding that the ulcer in the respondent’s mouth was visible in July, August and September 1999, that it was malignant (squamous cell carcinoma), and that it was part of what was removed during the commando procedure in May of 2000. It is the third requirement listed by the trial judge which is under consideration in this appeal. [25] For the purpose of this analysis of the treatment Mr. Courtney would have probably received in October 1999, the question is not what would have been observed when a referral was made but what would have been the clinical assessment when the respondent was seen at the cancer clinic4. It is that which determines the nature of the surgery to be performed. The trial judge listed the factors which, in May 2000, influenced the surgical team to perform the commando procedure and, later, radiation therapy: “ (1) the clinical determination of a stage 4 lesion attached to Mr. Courtney’s left mandible; (2) a fair-sized lymph node in Mr. Courtney’s neck; and (3) the fact that bone scan of the lesion area suggested jawbone [mandible] involvement” (para. 45). Pathology reports, completed after the surgery, stated that there was no evidence of carcinoma in the lymph nodes, nor the 4 The trial judge reasonably used what had actually happened when the respondent was referred to make her finding regarding what would probably have happened if he had been referred in September – that is, the surgery would probably have been in mid October. There was, in fact, only three days from the respondent’s clinical assessment to his surgery. Page: 10 mandible. Nevertheless, there is no suggestion that the respondent should not have undergone the radical surgery in May, 2000. [26] The issue is not what type of tumour actually existed in October of 1999, but whether the trial judge made a palpable and overriding error when she found that had the respondent been referred for a biopsy in September, 1999 and assessed at the Dr. H. Bliss Murphy Cancer Centre in October, 1999, the tumour would have been clinically assessed as a T-1 tumour. The evidence is consistent that a clinical diagnosis of a T-1 tumour (a tumour measuring less than 2 centimeters) would have resulted in a less radical procedure being used to remove the tumour. [27] As to the question of causation, primarily the appellant relies on the evidence of Dr. Archibald. The trial judge said of Dr. Archibald’s evidence: [152] The Defendant’s witness, Dr. Archibald, testified that in his opinion there was more than one disease process going on in Mr. Courtney’s mouth between July 1999 and April 2000 because nine months is too long a time period for Mr. Courtney’s oral carcinoma. He also says, despite Dr. Cleary’s evidence that the ulcer was larger and deeper in September, that the tumor could not be seen in September 1999. Dr. Archibald also says that because the tumor was stage 4 in early May 2000, it must have been a stage 3 in January 2000. He does not say when the tumor would have been at stage 1 or stage 2 but, following that logic, it had to have been at stages 1 and 2 prior to January. His evidence that Mr. Courtney’s lesion was at least at the T3 stage in January is difficult to reconcile with his evidence that the tumor was not likely present at all in the summer and fall of 1999 and is also difficult to reconcile with his evidence that the lesion was difficult to diagnose in March 2000. As well, Dr. Archibald’s concession that Dr. Cleary fell below the standard of care by not referring Mr. Courtney for a biopsy in January 2000 suggests to me that even he, as the Defence expert, thinks the lesion was present for some period of time before January 2000. [153] In my view, the preponderance of evidence indicates that the tumor removed from Mr. Courtney’s mouth in May 2000 was more likely than not a larger version of the lesion present in Mr. Courtney’s mouth from July 9 to September 13, 1999. I accept the evidence of Dr. Ganguly and Dr. Smith who testified in this regard, as their evidence was straightforward, made sense and is entirely consistent with the Plaintiff’s testimony regarding the evolution of his condition and the clinical chart. It is also consistent with Dr. Cleary’s evidence that he was treating the same ulcer throughout. I also accept the evidence of Dr. Rice as to his observation of Mr. Courtney’s mouth on April 4, 2000 and Dr. Wright as to his observation of Mr. Courtney’s mouth and the size of the tumor on April 10, 2000, and that it was slow growing. I also accept the pathology Page: 11 evidence. Again, the pathology evidence and that of Dr. Rice and Dr. Wright is entirely consistent with the Plaintiff’s evidence and the clinical chart. [154] On a consideration of the above evidence, I find that on a balance of probabilities, the lesion in Mr. Courtney's mouth in July 1999 was a smaller version of that surgically removed in May 2000 and that a biopsy of the lesion following the September 13, 1999 visit would have been positive for squamous cell carcinoma. There is no credible evidence which would permit the Court to find otherwise. Accordingly, I reject the argument that Mr. Courtney had two different disease processes going on in his mouth between July 9, 1999 and May 5, 2000 as it enjoys no evidentiary support. In fact, this argument appears to me to be a theory cobbled together by relying on Dr. Archibald's incorrectly drawn inferences from chart references and other sources combined with an attempt to confuse the real issues by focusing on Mr. Courtney's poor dentition. … [28] The preceding commentary by the trial judge demonstrates that she found Dr. Archibald’s evidence generally unhelpful. At para. 156 of her decision, the trial judge added: Dr. Archibald’s evidence on the treatment Mr. Courtney would have required had he been diagnosed and treated earlier was limited to what would have been required had he been diagnosed and treated after the January 27, 2000 consultation. He stated that he was unable to say what treatment would have been required for Mr. Courtney had he been diagnosed prior to January 2000 because there were no accurate measurements taken. Dr. Archibald said the same treatment Mr. Courtney received in May would have been required had Mr. Courtney been diagnosed just after the January visit. While I am not entirely convinced this is so, it is immaterial given that treatment would have occurred in October 1999 had Dr. Cleary referred Mr. Courtney for a biopsy as he should have on September 13, 1999. [29] There is no support for the appellant’s submission that Dr. Archibald’s opinion regarding the situation in January is effectively a description of the situation in December. Dr. Archibald was equivocal about that point. In answer to a question about whether the procedure performed in May might have been necessary earlier, assuming that the lesion in May was the same lesion observed in July 1999, he said: … I would say that’s likely back to January, maybe December, but January anyways. … Whether I could push it, I don’t think I would want to say that would be the same way in October or November or September. I’m not saying that. (Transcript, Tab 90, p. 60, lines 58-63) Page: 12 At p. 18 of the transcript of his testimony Dr. Archibald made the point that in his view by the end of January a “sizable lesion should have been apparent.” [30] The appellant argues that the trial judge erred when she said that Dr. Archibald’s opinion regarding the treatment which Mr. Courtney would have had to undergo after the January visit to the appellant was immaterial. He maintains that there is a gap to be filled regarding the stage of the tumour at the relevant time because there is no direct evidence on the stage of the tumour in October. His position is that the evidence of Dr. Archibald was just as material as that of Dr. Smith and Dr. Ganguly, which was considered by the trial judge. That is, the appellant argues that the trial judge should have considered the evidence of Dr. Archibald on this point and his failure to offer an opinion on the question of the stage of the tumour in October does not make his evidence regarding the situation in January immaterial. [31] The trial judge was correct, the staging of the tumour in January of 2000 is not at issue in this case and, therefore, that information is immaterial. The question raised by the appellant is really whether the evidence of Dr. Archibald regarding the staging of Mr. Courtney’s tumour in January is relevant to the determination of staging in October, 1999. In other words, does the staging in January of 2000 make it more or less probable that the staging in October, 1999 would be different? [32] The trial judge did consider the evidence of Dr. Archibald when making her determinations related to causation. At para. 152, reproduced above, she summarized his evidence. She clearly had some difficulty with what she saw as internal inconsistencies in the evidence. At para. 153 she stated her conclusion based on the preponderance of evidence and at para. 154 she stated her reason for rejecting certain positions of the appellant based on Dr. Archibald’s evidence. Underlying the trial judge’s comments about the testimony of Dr. Archibald is the idea that his testimony lacked the balanced view expected of an expert witness. In para. 152 the trial judge said of Dr. Archibald’s opinion: “He does not say when the tumor would have been at stage 1 or stage 2 but, following that logic, it had to have been at stages 1 and 2 prior to January.” [33] While she considered the evidence of Dr. Archibald on the question of causation, it is clear that the trial judge did not give his evidence the same weight as that of Doctors Smith, Ganguly, Rice and Wright. She articulated her reasons. There is no palpable error. Page: 13 [34] The appellant acknowledges that the trial judge did not say there was a reversal of the onus of proof. However, he argues that the trial judge’s comments suggest she was of the view that the defendant had failed to lead evidence about what surgery could have been done in October and that the defendant had prevented the plaintiff from proving his case. In support of this, the appellant cites from para. 158 of the trial judge’s decision: Evidence as to what the precise size of the tumor would have been at the time [of] treatment in mid-October 1999 is not available due to Dr. Cleary’s failure to refer his patient. In these circumstances, it would be perverse to infer that the size of the tumor was greater than a stage 1 at that time. [35] Counsel for the appellant conceded that the first sentence quoted from para. 158 is not objectionable. It is, of course, a simple statement of the trial judge’s finding. It is also, in my view, relevant to the application of the analysis advocated in Snell v. Farrell, about which more will be said below. The last sentence must be read in the context of the whole paragraph and the evidence relating to the stage of the tumour referred to in the immediately preceding paragraphs (reproduced, in part, at paras. 27 and 28 above), not just to the immediately preceding sentence. When looked at in the broader context, in using the word “perverse” the trial judge is merely expressing her view that on consideration of all of the evidence it would be contrary to the weight of that evidence to infer that the tumour was greater than stage 1 in mid-October 1999. The impugned sentence does not support the view that the trial judge reversed the onus of proof or mixed the concepts of breach of duty and causation. [36] I do not accept the appellant’s submission that the trial judge made a palpable and overriding error by failing to consider the likelihood of an enlarged lymph node in mid-October of 1999. The best evidence (the post surgery pathology report) is that there was no malignancy in the lymph nodes. The appellant is therefore submitting that the trial judge erred by failing to consider that there might have been a false indication of lymph node involvement in October 1999, as there was in May of 2000. It is true that the trial judge did not say that she was satisfied there was no swelling of lymph nodes in October of 1999. However, there was no evidence which would suggest that had been the case. The first mention of lymph node enlargement was from Dr. Kargbo who saw Mr. Courtney at the emergency department of the hospital in Clarenville on March 22, 2000. The appellant himself saw the respondent in September of 1999 and in January of 2000. While I agree that he did not state he looked for lymph node involvement, on Page: 14 neither occasion did he note that he had observed an enlarged lymph node. Dr. Wright, who saw the respondent on April 10, 2000 found no lymph node involvement, though there was lymph node involvement on May 2, 2000. This was not seen as being unusual by Dr. Wright (Vol. 4, Tab 81, p. 8), who stated that they “come and go for all kinds of reasons”, or Dr. Ganguly who speculated that the lymph node involvement in May 2000 could have been caused by dental problems (Tab 76, p. 22). Absence of a symptom may be relevant if there is evidence that the symptom is normally present. Since the evidence is that there was no malignancy in the lymph node there was no reason to anticipate that it would be enlarged for that reason. The assertion that the trial judge erred by failing to mention the possibility of lymph node involvement in October of 1999 for some reason other than cancer is an assertion that conjecture should have been part of her analysis. I do not agree. [37] The appellant also alleged the trial judge erred by failing to consider whether the mandible would have appeared to be involved in mid-October of 1999. The evidence of the location of the ulcer in July 1999 came from the appellant. He described the “ulcer” as being on the floor of the mouth abutting the bottom of the middle of the tongue on the left side. He added that it was “certainly closer to the tongue than it was to the mandible, for sure.” (Transcript, Tab 86, p. 13). Dr. Cleary did say that he probably checked the TM joint (temporomandibular joint) during the July 1999 visit, because of the complaint of ear pain. When describing his observations of the ulcer in September 1999, the appellant said it was in “basically” the same place as in July, though he did note an infected area adjacent to the ulcer. (Transcript, Tab 86, p. 15). At that point the appellant noted the ulcer was around a centimeter, maybe more, long, about .2-.3 cm. wide but deeper than during the first visit. [38] The appellant maintains that in drawing inferences the trial judge misunderstood the staging process and its significance for treatment. The appellant draws distinctions between a lesion, an ulcer and a tumour. Some confusion may arise because of more than one meaning ascribed to lesion. Sometimes it is equated with an ulcer; sometimes it is equated with a tumour. Neither is incorrect as indeed an ulcer is a type of lesion, and lesion and tumour are often used interchangeably (see: Oxford Dictionary of English, 2d ed., revised, Oxford University Press). Sometimes lesion refers Page: 15 to what is seen; sometimes it refers to what may be felt on palpation5. It is important, therefore, to be precise about meaning if that is not obvious from the context. It is in the context of staging of the tumour, which includes but is not limited to an element of measurement, that the appellant says the trial judge erred by equating the measurement of the lesion (ulcer) seen in September of 1999 and the type of measurement of the tumour performed in May of 2000 to determine its stage. [39] None of the experts could express an opinion about what stage the tumour was, or would probably have been clinically determined to be, in mid-October, 1999. However, the trial judge was free to apply the robust and pragmatic approach, approved of in Snell v. Farrell, to the evidence in this case considering that: 1. The experts were unable to say on a scientific basis the stage of the tumour in October 1999, but there was evidence relevant to that issue; 2. The appellant was in the better position to determine the stage of the tumour by palpation or referral in September 1999 (he did neither); and 3. While the action or lack of action of the appellant did not make it impossible for anyone else to determine the stage of the tumour in October 1999, it did mean that the respondent, relying on the appellant’s professional opinion, had no reason to request such an examination until 5 months later, when the disease, all agree, had progressed. [40] It is common ground that a tumour does not suddenly appear as a stage 4 tumour. It develops over time. In this case, the pathology report supports the trial judge’s conclusion (para. 149 of her decision) that the disease progressed at a moderate rate. Neither Dr. Smith nor Dr. Ganguly, though they treated Mr. Courtney in May of 2000, was able to state the stage of the tumour in October of 1999. Both spoke about the difficulty of predicting with accuracy the lifespan of a tumour in light of the many variables which influence the growth of tumours. Dr. Archibald made a similar point. The trial judge noted that Dr. Archibald did not express an opinion as to when Mr. Courtney’s tumour would have been classified as 5 The appellant, in his testimony, described a lesion as “anything you see.” Later he added that it might be something that is felt (Transcript, Tab 86, pp. 6-7). Page: 16 stage 1 or 2, but logically it would have had to have been prior to January 2000, when Dr. Archibald said it was a stage 3 tumour. In that sense the trial judge’s conclusion regarding the stage of the tumour in October 1999 is not contrary to the opinion of the appellant’s expert. Dr. Smith was willing to opine that in light of the fact that it was a moderately differentiated tumour, it was more likely than not that Mr. Courtney’s cancer had been present for 9 months. [41] The appellant argues that the fatal flaw in the reasoning of the trial judge is that the information available to her regarding Mr. Courtney in 1999 is, at best, a measurement of an ulcer which may not equate with the measurement of a tumour. The size of the tumour is one of the factors used for staging which, in turn, determines the type of surgery to be performed. [42] The trial judge, on the basis of the evidence available, which was directed to the stage of the tumour and its appearance from July 1999 onward, inferred that the clinical staging of the tumour in October of 1999 would have been a stage 1. This has not been shown to be a palpable and overriding error. It is true that because there was no palpation of the ulcer prior to 2000, there can be no definitive statement that the size of the ulcer reflected the size of the tumour. It is known that the length of the ulcer was around 1 centimeter from when first observed by the appellant to September, 1999. A T-1 tumour measures less than 2 centimeters. The primary difference from July to September, as noted by Dr. Cleary was in the depth of the ulcer. [43] Dr. Archibald described three types of oral squamous cell carcinomas: the most common would present as ulcerations with a thickened base; the second would be a lump rather than an ulcer; and the third and least common would have little surface change, at least in the early stages. The point made by Dr. Archibald is that in the third case the ulcer might not correlate well with the tumour itself. Unfortunately, the testimony of Dr. Archibald regarding the rate of such cancers is unhelpful because he provided the number of persons per 10,000 who might get the third kind per year but when stating the number of persons who might get oral squamous cell carcinoma he presented it as a percentage of all cancers. There is nothing to support the view that Mr. Courtney’s carcinoma was of the third kind. The trial judge accepted the evidence that Mr. Courtney’s tumour was a moderately growing one, and that it was likely that it had been present for 9 months. The ulcer had been present for all of that period. The pathology reports indicated that the cancer had not extended to the lymph nodes or the Page: 17 mandible. The trial judge cannot be said to have made a palpable and overriding error by failing to find that Mr. Courtney’s carcinoma was one of the third kind described by Dr. Archibald where the ulcer would appear late in its development, if at all. [44] Applying a robust and pragmatic approach to the analysis of the evidence, as the trial judge was entitled to do, she did not err in finding that in mid-October 1999 Mr. Courtney’s tumour probably would have been clinically determined to be a T-1 tumour and consequently his surgery would have been much less radical than the surgery performed on him in May 2000. Damages [45] The appellant argues that the award of $165,000 for general non- pecuniary damages was “wholly erroneous”, excessive and beyond the range normally awarded for this type of injury. It is further argued that the trial judge, having calculated general non-pecuniary damages on the basis of 2008 dollars, erred in also awarding pre-judgment interest from the date the cause of action arose. As to past and future loss of income, the appellant maintains that the trial judge erred in how she applied the law and in assessing the damages. The respondent cross-appeals submitting that the trial judge erred in limiting the award of interest on damages for loss of past income by specifying that it was to commence as of October 1, 2008. General Non-Pecuniary Damages [46] The trial judge summarized the impact of the more radical surgery on Mr. Courtney at para. 187 where she said: All the surgery and radiation have caused Mr. Courtney: (1) significant pain, suffering and debilitation during the six months or so he spent recovering from same. This is beyond the ten-day recovery period he would have had following surgical excision of a Stage 1 lesion; (2) the loss of his left jaw, all of his teeth (which cannot be remediated by false teeth) and half of his tongue, all of which have left him with obvious facial disfigurement, a speech impediment, a compromised ability to chew food and nerve damage to his left face such that he cannot feel temperature and is therefore susceptible to frostbite; Page: 18 (3) the loss of his salivary glands resulting in a dry mouth condition and the loss of his sense of taste; (4) the removal of his left pectoral muscle from his chest (used to reconstruct his left face and neck) leaving his chest unprotected by muscle and therefore ultra sensitive to touch and excruciatingly painful when pressure is applied to it by heavy objects, seat belts, safety harnesses and the like (Dr. Smith described this as “bone on bone pain”); (5) reduced mobility in his neck, shoulder, the left side of his chest and left arm, leaving him with irreparable nerve damage, unable to raise his left arm above chest height, diminished strength and a compromised ability to drive; and (6) physical disfigurement of his chest in that his left nipple is now located in the centre of his chest and he has a lengthy surgical scar. [47] The trial judge expanded on this list. She accepted that though Mr. Courtney continues to work, albeit with the co-operation of his fellow employees and his employer, as there are certain aspects of his employment for which he now needs assistance, he is less social than before. She noted the physical appearance of Mr. Courtney’s face; he does not enjoy outdoor recreational activities like hunting and fishing in which he participated before his surgery; the need for constant drinking of water and consequent toileting interferes with activities and sleep; and the impact of the loss of taste. In addition, because he has no teeth the respondent’s food has to be mashed. [48] The appellant argues that the trial judge overemphasized the importance of loss of salivary glands and the loss of taste. He refers to cases which involved the loss of taste coupled with other injuries and submits that the appropriate amount for non-pecuniary damages in this case is in the range of $60 - $65,000. The appellant further argues that Driscoll v. Morgan, which was relied on by the trial judge, was not an appropriate choice for a comparable because serious orthopaedic injuries prevented Mrs. Driscoll from going back to work whereas Mr. Courtney was able to return to work within months of his surgery and treatment. [49] Seriousness of the injury is not the only factor considered in non- pecuniary damage awards which are generally directed to providing the plaintiff with “reasonable solace” for his misfortune: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229. The trial judge found that the approach advocated by the appellant ignored many other non-orthopaedic Page: 19 injuries which Mr. Courtney has but Mrs. Driscoll did not have. She noted, in particular, Mr. Courtney’s facial deformity, speech impediment and loss of sense of taste. The appellant has not demonstrated that, on the applicable standard of review, the decision of the trial judge regarding non-pecuniary general damages should be disturbed. Loss of Earning Capacity [50] The value of earning capacity is equivalent to the value of the earnings that Mr. Courtney would have received over time, had the tort not been committed: M.B. v. British Columbia, [2003] 2 S.C.R. 477, paras. 47-50. [51] The trial judge awarded damages for loss of earning capacity for the period up to October 31, 2000 (when Mr. Courtney returned to work), which is not subject to appeal. As to losses between September 2001 and September 2008 (the time of the trial), Mr. Courtney was awarded “$476,140, plus 19.5% pension and other fringe benefits for a total of $568,987, plus pre-judgment interest from October 1, 2008.” For future loss, he was awarded, “the present value of $51,015 for four years using a 1.6% discount rate plus 19.5% for pension and fringe benefits.” The appellant argues that the trial judge erred in the calculation of both past and future loss of earning capacity. There is no dispute about the percentages used for fringe benefits or the discount rate. [52] The respondent was employed in 1999 and up to his surgery in 2000 as a pipefitter with PCL Industrial Contractors Inc. at the Bull Arm Site on the Terra Nova Development project. In November 2000 he was able to return to work. In July 2001, when the Terra Nova Project finished, he was laid off and was unemployed for approximately a year. Since July 2002, he has worked seasonally in a fabrication shop within an easy commuting distance from his home. [53] As noted, the appellant agrees that Mr. Courtney is entitled to loss of wages for the period he was off work for surgery, treatment and recovery, less the period he would have been off work had a simpler surgical procedure been preformed. The aspect of this claim which is troubling for the appellant relates to a hypothetical. Mr. Courtney stated that in 2001, during a period when he was unemployed, were it not for the May 2000 surgery and its impact, he would have gone to work outside the province, Page: 20 likely in Fort McMurray, Alberta, where he would have earned significantly more than he earned in Newfoundland and Labrador. [54] The approach to be taken to loss of earning capacity was addressed in Driscoll v. Morgan where, commencing at para. 5, I wrote: [5] Before turning to the specifics of this case, it is helpful to consider general principles respecting the assessment of damages in the context of personal injury cases. In Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, at p. 251, Dickson J. said: We must now gaze more deeply into the crystal ball. What sort of a career would the accident victim have had? What were his prospects and potential prior to the accident? It is not loss of earnings but, rather, loss of earning capacity for which compensation must be made: The Queen v. Jennings, [[1966] S.C.R. 532]. A capital asset has been lost: what was its value? [6] Hypothetical events (such as how the plaintiff's life would have proceeded without tortious injury) or future events need not be proven on a balance of probabilities. Such things are given weight according to their relative likelihood (Athey v. Leonati, [1996] 3 S.C.R. 458, para. 27; Janiak v. Ippolito,[1985] 1 S.C.R. 146). This is sometimes referred to as the simple probability standard. In Janiak, at pp. 170-71, it was expressed this way: ... as the passage from Lord Diplock [Mallett v. McMonagle, [1970] A.C. 166, at p. 176] makes clear, the balance of probabilities test is confined to determining what did in fact happen in the past. In assessing damages the court determines not only what will happen but also what would have happened by estimating the chance of the relevant event occurring, which chance is then to be directly reflected in the amount of damages. [Emphasis in original] [7] A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation (Leonati, para. 27). In the assessment of future loss of earning capacity, and other headings of damages related to the future, the argument between the parties often relates to whether the chance or probability of a particular event occurring is so small that the event is speculative or too remote for consideration. [8] In the case of a loss of earning capacity, it may be assessed by a comparison of the amount which a plaintiff would likely have earned but for the injury with what he or she will likely earn. Further, allowances must be made for contingencies. In Kielley v. General Hospital Corp. et al. (1999), Page: 21 183 Nfld. & P.E.I.R. 1 (NLCA), Steele J.A. cited with approval the following from Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (B.C.S.C.) at 79: In recognition of the fact that the future cannot be foretold, allowance must be made for the contingency that the assumptions on which the award for pecuniary loss is predicated may prove inaccurate. In most cases this will result in a deduction, since the earnings and cost of care figures are based on an uninterrupted stream which does not reflect contingencies such as loss of employment, early death, or the necessity of institutional care. [9] This is not to say that there is no role for the balance of probabilities standard in the assessment of damages but, as Wilson J. described it in Janiak, it is "confined to determining what did in fact happen in the past." It is in that context that in certain cases pre-trial losses have been referred to as special damages or requiring proof on the balance of probabilities. Issues such as causation (eg. were the symptoms experienced by a plaintiff caused by the accident) clearly require proof on a balance of probabilities. Amounts paid for treatments or medication would also fall into this category. What a plaintiff's career might have been (during the period between the accident and the trial) had it not been for the accident, however, is considered a hypothetical possibility for which the standard of proof is simple probability. [55] In Linda D. Rainaldi, ed., Remedies in Tort, 4th ed. (Thomas Reuters Canada Ltd., 1987) Vol 4, para 87, the authors note: While past facts, liability and causation must be proven on a balance of probabilities, past hypothetical facts, like future events, are assessed on the simple probability standard: the probabilities and chances are assessed according to the degree of likelihood that they would have materialized. [56] The appellant argues that the trial judge erred in her approach to this hypothetical situation because she applied the balance of probabilities standard rather than the simple probability standard to the assessment of pre- trial loss of earning capacity. Having concluded that it was more likely than not that Mr. Courtney would have gone to Fort McMurray, Alberta to work for the period from September 2001 to the date of trial, the trial judge awarded Mr. Courtney 100 percent of what he would have earned, less what he, in fact, earned during that same period. The appellant maintains that had the trial judge applied the correct approach Mr. Courtney should have received, at best, a percentage of the hypothetically lost wages, based on the trial judge’s assessment of the chance of his going to Alberta and working there full time until the date of the trial. Page: 22 [57] As to future loss of earning capacity, the appellant agrees that the trial judge stated the correct test and that she was correct in adjusting for contingencies. However, he says the proper approach would have been to apply simple probability to the calculation of earnings lost and then further adjust that figure for contingencies. [58] The appellant points to certain excerpts from the decision of the trial judge in support of the view that she used the wrong approach to the calculation of damages for loss of earning capacity. At para. 205, when addressing loss of earnings between September 2001 and September 2008, the trial judge stated: The issue is therefore whether I accept, on a balance of probabilities, that Mr. Courtney would have moved away from central Newfoundland to work after finishing at the Terra Nova Project in July 2001, and remained working away to the date of the trial and beyond to the age of 65. (emphasis added) [59] At para. 209 she concluded: Dr. Strain gave evidence, which I accept, that a tradesman’s peak earning years are between ages 47 and 55. Mr. Courtney was within this age range in August 2001. This fact, combined with the reasons stated above, and along with the uncontroverted evidence of Mr. Courtney’s attachment to the work force and fine work ethic, make it, in my view, more likely than not that he would have left home in the late summer of 2001 to work rather than stay home unemployed or underemployed. (emphasis added) [60] At para. 229 the trial judge said: Dr. Strain’s estimate of $127,020 is a conservative figure in relation to Mr. Courtney, because it does not account for the fact that Mr. Courtney is an experienced journeyman pipefitter who commands union rates. Dr. Strain’s figure is based on Alberta statistics for all levels and classes of pipefitters. In addition that $127,020 figure does not reflect overtime earnings, which, according to the evidence, accounts for a significant part of workers’ earnings in Fort McMurray. [61] At para. 232 she added: Page: 23 … I acknowledge that $127,020 is a conservative figure which does not account for Mr. Courtney’s experience and journeyman status, or the premium paid to pipefitters working specifically in Fort McMurray. However, in my view, Dr. Strain’s evidence is the best evidence available and its undervaluation vis à vis Mr. Courtney allows for the possibility that Mr. Courtney may not have been working in Fort McMurray for the entire seven-year pre-trial period. Counsel for the appellant points out that the reference to “not working in Fort McMurray” is not an attempt to account for the possibility that Mr. Courtney would not have gone to Alberta but for the possibility that he would have worked elsewhere in Alberta, where the rates of pay would have been less than at Fort McMurray. [62] I am satisfied that the trial judge stated and applied the wrong test (balance of probabilities) in dealing with loss of earning capacity from September 2001 to trial. Given that the claim centers on a hypothetical situation she should have applied the simple probabilities test and applied the appropriate percentage to the per annum loss. [63] The evidence at trial regarding what Mr. Courtney might have earned had he worked in Alberta from September 2001 onward came primarily from two expert witnesses: Dr. Strain, for the respondent, and Dr. Hyatt, for the appellant. In addition, there was some “anecdotal evidence” regarding wages for individual pipefitters in Fort McMurray. There are strengths and weaknesses in the reports of both experts. The trial judge having concluded that in September of 2001 Mr. Courtney would probably have gone to work in Fort McMurray, the best evidence would have been data respecting the wages of journeyman pipefitters working in Fort McMurray. That information was not available to anyone. The experts then had to extrapolate from information which was available. [64] The trial judge expressed acceptable reasons for preferring the evidence of Dr. Strain. Dr. Hyatt’s opinion was based on pipefitters’ wages for all of Alberta and for all ages and levels of experience, union and non- union workers. Dr. Strain’s evidence was based on data for the Wood Buffalo area of Alberta, which includes Fort McMurray, where earnings are significantly higher. However, the data was not limited to pipefitters. The trial judge found that Mr. Courtney would have earned, in 2008 dollars6, $127,020 per annum had he gone to Fort McMurray to work. That figure was arrived at by applying the percentage difference, province wide, 6 I shall return to the question of the use of 2008 dollars later in this decision. Page: 24 between other trades and pipefitters (16%) to the figure of $109,500 which was provided by Dr. Strain. Dr. Strain did say that $109,500 was a conservative figure based on the average of all trades (those with trades certificate or diploma) between the ages of 35-54, working in the Wood Buffalo area. Mr. Courtney would have been 53 years of age in September 2001. The increase from $109,500 to $127,020 is designed to account for the higher wage for pipefitters. No palpable and overriding error has been demonstrated in the trial judge’s finding that the per annum loss was $127,020. [65] There is nothing wrong, in principle, in using average incomes to determine what the earnings loss might have been. However, one aspect of the trial judge’s decision on this point is not supported. That is, her statements that $127,020 is a conservative figure (paras. 232 & 229). Doctor Strain’s statement that the figure provided was a conservative one applied to the $109,500 which included other trades as well as pipefitters, and which included full time, full year workers not just hourly wage earners. On the evidence of Dr. Hyatt, full time workers, in contrast to hourly wage earners, received much greater increases in salary over the period from 2001 to 2008. [66] As to whether the $109,500 figure represents overtime, that is not specifically addressed. The report of Dr. Strain indicates that in Table 3-2 not all salary estimates include overtime. It notes, however, that the 2001 and the 2006 Census data in Table 3-2 is inclusive of overtime. Table 3-3, from which the figure of $109,500 is derived, is made up of 2001 Canadian Census data. There is no commentary indicating whether the data in Table 3-3 include overtime. However, in his testimony, at p. 18, Dr. Strain said in answer to a question from the trial judge as to why the Wood Buffalo region pays higher wages: … it is a hot labour market but there is a collective agreement as well that affects pipefitters but the big thing is that you can get an awful lot of hours and a lot of overtime in Wood Buffalo so depending on what trade you were in there is a market difference and there’s a really high demand for labour right now in that area and there has been for the last decade. [67] I conclude that, in fact, the figure of $127,020 does include an amount for overtime. This is further supported by data related to the wages of journeymen pipefitters. Table 3-2 of the report of Dr. Strain includes the journeyman base rate as of May 4, 2008, under the United Association of Journeymen and Apprentices of Plumbing & Pipefitting Industry of the Page: 25 United States and Canada, Industrial Local 488, collective agreement of November 11, 2007 to April 30, 2011. Local 488, on the evidence of Mr. Jim Myers, operates Alberta wide. The journeyman base rate under the collective agreement is $37.68 per hour. The full time employment wage would be $78,374 per annum. The rate of pay being earned by Mr. Jones, a foreman pipefitter in Fort McMurray at the time of trial was “$47 and change” per hour.7 Fulltime employment would be approximately $99,840 per annum. The full time base rate for journeyman under the collective agreement and Mr. Jones’s rate of pay would suggest $127,000 does include an amount for overtime. [68] At para. 238, when dealing with future earnings, the trial judge said: The Plaintiff has also satisfied me that he will, on the basis of simple probability, continue to lose earnings into the future due to his diminished capacity to work at the usual more physically demanding and lucrative pipefitting jobs. I find this to be a ‘real and substantial possibility and not mere speculation’ … for the same reasons he suffered past pre-trial earnings losses due to his permanent partial disability. However, in assessing Mr. Courtney’s future earnings losses, negative contingencies must be taken into account. As Dr. Strain testified, these contingencies include mortality, disability from other causes, availability of work in Mr. Courtney’s trade and voluntary retirement. I also include voluntary return to work at home in this category although I acknowledge that Mr. Courtney is unable to do most pipefitting jobs at home. The trial judge, using the figures previously arrived at for loss of income prior to trial, specified that Mr. Courtney was entitled to the present value of $127,020 minus $59,000 annually up to Mr. Courtney’s 65 th birthday and applied a discount of 25% for negative contingencies, including returning to Newfoundland and Labrador to work and voluntary retirement. The appellants state that the proper approach would have been to apply simple probability to determine the amount for loss of future income and then adjust for contingencies as was done in Reilly v. Lynn, 2003 BCCA 49. [69] In Cooper-Stephenson, Personal Injury Damages in Canada, 2d ed. Carswell, 1996 at p. 78 the author suggests that the approach used depends on how high the probability is. He said: 7 It should be noted that Mr. Jones stated he had just recently been appointed foreman and that he had earned about $125,000 in the first 8 months of the year. He did not state what his hourly rate had been for the first 8 months. Page: 26 It is thus clear that the theory of simple probability functions not only to assess low-percentage risks but also to limit damages where the likelihood of loss is or was greater than even. The plaintiff recovers only proportionately according to the likelihood that the loss occurred. The initial assessment is sometimes done on this basis, such as in the legal negligence case Kitchen v. Royal Air Force Assn., where the calculations were made on the basis that the plaintiff had lost a 66% chance of obtaining damages in a thwarted claim; and in Barry v. British Tpt. Commission, where the evidence indicated a bare probability that the plaintiff would have received a special rate of pay, and he was awarded damages based on approximately 60% of that special rate. At a higher point in the probability scale, the simple probability approach is accommodated by scaling down the award for contingencies, as evidenced by the Supreme Court of Canada’s decision in Conklin v. Smith, where, in effect, the plaintiff’s prospects of becoming a commercial airline pilot were assessed at 80%. [70] The mere fact that the trial judge made one calculation instead of two, does not, of itself, result in her being in error. However, a trial judge must be careful to avoid duplication. Matters which have been considered in estimating loss of earnings should not be again considered in adjustments for contingencies. [71] In respect of the amount awarded for future loss of earnings, the issue is not the method used but whether the trial judge made a palpable and overriding error in her assessment of the simple probability. [72] As to the loss for the period from September 2001 to 2008, the trial judge, as noted, made an error in law in applying the balance of probabilities test rather than simple probability. The appropriate remedy is for this Court to apply simple probability to the figures arrived at by the trial judge, there being no palpable and overriding error in her finding regarding the annual loss if Mr. Courtney worked full time in Fort McMurray. [73] On the basis of the findings of the trial judge, there is a relatively high likelihood that were it not for his injuries Mr. Courtney would have gone to work in Fort McMurray in September of 2001 and obtained employment there. It is not a certainty; nor is it a certainty that he would have worked full time for the full period. Mr. Courtney had worked away from home, in the 80s and early 90s, in Ontario, Saskatchewan and Alberta. As he put it, he had gone to Fort McMurray 4 or 5 times, working at different job sites (Vol 4, Tab 75, p. 18). On cross-examination he agreed that he had worked outside of Newfoundland when he could not get work at home (Vol. 4, Tab 75, p. 31). From 1993 onward he had worked in Newfoundland, near his home. I would put the degree of likelihood at 75%. Accordingly, the figure Page: 27 for past earnings losses between September 2001 and September 2008 becomes $357,105, plus 19.5% for pension and other fringe benefits, for a total of $426,740. [74] As to future earnings losses, the loss was calculated by the trial judge as $127,020 minus $59,000 ($68,000), less 25% for contingencies ($51,015) multiplied by 4 (years), which figure was then adjusted further for contingences (25%), fringe benefits (19.5%) and 1.6% to determine present value. When the trial judge speaks of contingencies she is, in addition to the usual features such as mortality, disability from other causes and voluntary retirement, including voluntary return to Newfoundland to work. [75] The likelihood of Mr. Courtney remaining in Fort McMurray full time until retirement at the age of 65 is less than the probability that he would work full time during the pre-trial period, when he was younger and generally could be said to be more productive in the physically demanding job of a pipefitter. I would put the likelihood of full time employment post trial at 60%. A further adjustment should be made for contingencies, fringe benefits and to determine present value. The amount awarded should therefore be $127,020 minus $59,000 ($68,020) multiplied by 60%. The resulting $40,812 would then be further reduced by 20% for contingencies. The future loss of earnings becomes: the present value of $32,650 for 4 years using a 1.6% discount rate plus 19.5% for pension and fringe benefits. Mitigation [76] The appellant argues that Mr. Courtney had an obligation to mitigate his damages. In this context, he maintains that Mr. Courtney should have demonstrated that he could not have been accommodated by employers in Fort McMurray. [77] At para. 46 of Driscoll v. Morgan, the law was summarized as follows: A plaintiff has what is commonly, though perhaps inaccurately, referred to as a “duty to mitigate.” Underlying that “duty” is the principle that a plaintiff cannot recover damages which could have been avoided by taking reasonable steps. It is, of course, for a plaintiff to prove his or her damages. However, if a defendant alleges that a plaintiff could have mitigated his or her loss, the burden of proof, on a balance of probabilities, is on that defendant (Janiak). Whether a failure to take a particular course of action is unreasonable (and therefore a failure to mitigate) is a question of fact. Page: 28 [78] In Red Deer College v. Michaels, [1976] 2 S.C.R. 324, at p.332, Laskin C.J. approved of the following from Williston on Contracts, vol. 111, 3rd ed. (1968), at p. 312: It seems to be the generally accepted rule that the burden of proof is upon the defendant to show that the plaintiff either found, or by the exercise of proper industry in the search, could have procured other employment of an approximately similar kind reasonably adapted to his abilities, and that in absence of such proof the plaintiff is entitled to recover the salary fixed by the contract. Though stated in the context of a claim for breach of contract, the reasoning is just as valid in the context of assessment of damages in tort. [79] The trial judge had before her a great deal of evidence regarding Mr. Courtney’s present capacity to work, including the fact that he is able to work in a fabrication facility, with accommodation. She discussed the different kinds of pipefitting work and accepted that had Mr. Courtney gone to Alberta it would have been to do the more lucrative work on construction sites and in refineries. She considered his limitations against the requirements for work as stated in job listings which had been provided to the Court and the evidence of Mr. Jones. She noted, in particular, his inability to wear a safety harness, his inability to climb, and that he is not able to wear a mask. The appellant has not demonstrated that the trial judge made a palpable and overriding error in concluding that Mr. Courtney was unable to do construction or refit pipefitting work. It follows from that finding that Mr. Courtney’s efforts at mitigation by returning to work in a fabrication plant in Newfoundland and Labrador were reasonable ones and the trial judge was correct in not making any adjustment based on failure to mitigate. Judgment Interest Act [80] Prior to the introduction, in 1983, of legislation8 providing for its payment, pre-judgment interest was denied in this Province, except in very narrow circumstances: Goodyear & House Ltd. v. Eaton (1971), 2 Nfld. & P.E.I.R. 56.9 The payment of pre-judgment interest on non-pecuniary 8 The Judgment Interest Act, SNL 1983, c. 81. 9 There are, in fact, two older cases dealing with claims for debts in which interest was allowed: Prowse v. The Government of Newfoundland (1900), 8 Nfld. L.R. 386 and Whiteway v. The Government of Newfoundland (1901), 8 Nfld. L.R. 482. Neither were cited in Goodyear & House Ltd. v. Eaton. Page: 29 damages is not a development of the common law but the result of legislative action.10 [81] The Judgment Interest Act, RSNL 1990, c. J-2, provides, in part: 3(1) Where a person obtains a judgment for the payment of money or a judgment that money is owing, the court shall award interest on the judgment calculated in accordance with this Act. (2) The court shall not award interest … (b) on interest awarded under this Act. … (3) Where it is proven to the satisfaction of the court that it is just to do so having regard to the circumstances, the court may, with respect to the whole or a part of the amount for which judgment is given, (a) refuse to award interest under this Act, or (b) award interest under this Act at a rate or for a period or both other than a rate or period determined pursuant to section 4. … 4(1) The court shall for purposes of section 3 calculate interest under this Act from the day the cause of action arises to the day of judgment at the rate determined by averaging the interest rates in effect during that period. (2) Where a judgment includes damages for expenses incurred or income lost, the court shall (a) determine the total of those damages sustained within the 3 month period beginning on the day the cause of action arose and within each subsequent 3 month period; and (b) calculate interest from the last day of each 3 month period described in paragraph (a) to the day of judgment, on the total of the damages sustained within the 3 month period, at 10 The history of pre-judgment interest is discussed in Bank of America Canada v. Mutual Trust Co. [2002] 2 S.C.R. 601, in which the Court approved of the summary of Picard J.A. in Costello v. Calgary (City) (1997), 152 D.L.R. (4th) 453 (Alta C.A.). Page: 30 the interest rate in effect on the last day of the three month period. The Judgment Interest Regulations, C.N.L.R. 16/96, specify how the interest rates are established. The average Bank of Canada rate for October and November of the prior year is the foundation of the calculation (s. 2(1)). Interest on non-pecuniary damages [82] The appellant submits that the trial judge erred when, having awarded damages in 2009 dollars11, she also awarded pre-judgment interest on non- pecuniary damages from the date the cause of action arose (s. 4(1)). In support of this proposition he cites a decision of this Court, Smith Young v. Wells (2006), 264 Nfld. & P.E.I.R. 217, paras. 74-75, and contrasts what the trial judge herself did in the case of past income loss: having calculated damages in 2008 dollars, she awarded pre-judgment interest from October 1, 2008. The appellant maintains that because non-pecuniary damages were assessed in 2008 dollars the trial judge erred by failing to exercise the discretion, granted by s. 3(3) of the Act, to refuse to award interest for the period prior to October 2008. [83] The respondent submits that it is not clear that the trial judge was doing anything other than awarding damages as of the date of loss. He reasons that like the trial judge in Driscoll v. Morgan the trial judge here must have been awarding damages from the date of injury because of the fact that interest was awarded from that date (s. 4 of the Judgment Interest Act). I do not share this view. The trial judge in Driscoll v. Morgan said that the parties agreed that the “current, inflation-adjusted maximum would be $300,000” 12. He also noted support for this figure from one of the witnesses. He followed with “bearing this in mind and considering Mrs. Driscoll’s injuries … .” In my view, this is a clear statement that the trial judge in that case was calculating the award on the basis that the maximum at the time of trial was $300,000. Similarly, in this case the trial judge referred to the trilogy limit and, at paragraph 194, said: “In consideration that the trilogy limit is approximately $330,000 at the present time, and 11 The trial judge, in her July 2009 decision, referred to the trilogy limit as being approximately $330,000 “at the present time.” The reference to the present time is more likely to be a reference to the time of trial in late 2008. 12 In a trilogy of cases, Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Arnold v. Teno, [1978] 2 S.C.R. 287; and Thorton v. Board of School Trustees of School District No. 57 (Prince George), [1978] 2 S.C.R. 267, the Supreme Court of Canada established a limit to non-pecuniary damages. That amount was, in 1978, $100,000. Page: 31 using the Driscoll case as a benchmark injury award in this jurisdiction, I award Mr. Courtney $165,000 plus pre-judgment interest for his non- pecuniary general damages.” If the respondent’s position were correct, one would expect to see references to the trilogy limit as of the date the cause of action arose. [84] In Smith Young, the trial judge awarded two amounts for non- pecuniary general damages: a sum for depression and anxiety and a sum for the balance of the non-pecuniary general damages part of the claim. In respect of the latter he ordered that the damages were $65,000 in 1996 dollars to be converted to 2005 dollars, using the date of filing of the trial judge’s decision as the date for the calculation. He also awarded interest pursuant to the Judgment Interest Act. This Court held that it was an error to separate the aspects of general non-pecuniary damages. Rather, a single amount should be awarded as compensation for general and non-pecuniary damages. [85] As to the conversion of the award to 2005 dollars, this Court said, at paras. 74-75 of Smith Young: When damages are awarded in date-of-judgment dollars, no pre-judgment interest should be awarded. That was made plain in Canadian Laboratory Supplies Ltd. v. Engelhard Industries of Canada Ltd., [1979] 2 S.C.R. 787, at pp. 807-08, where damages were fixed as of the date of judgment. Laskin C.J.C. wrote that, “hence, [it was] not a case for interest to run from any earlier date”. Laskin C.J.C. was dissenting in part, but Estey J., writing for the majority, likewise confirmed at p. 819, that the award of interest should run “only from the date of judgment at trial”. See also , S.M. Waddams, The Law of Damages, 2nd. ed., looseleaf (Aurora, Ont.: Canada Law Book, 1991+), at paras. 7.870 and following, for an explanation of the problems that can arise when damages are fixed as of the date of judgment, rather than as of the date of the wrong, and then adjusted. Thus, compensatory damages should be awarded in date-of-the-wrong dollars to which pre-judgment interest (calculated from the date of the wrong to the date of judgment) is then applied. If, as here, those damages are awarded in date-of- judgment dollars, pre-judgment interest should not apply. Adding pre- judgment interest would amount to double compensation. Using the words of s. 3(3) of the Judgment Interest Act, “having regard to the circumstances” it would not be “just to do so”. I would note that Engelhard Industries was an action for conversion, and therefore, was not dealing with non-pecuniary damages. Page: 32 [86] Generally, non-pecuniary damages are assessed at the time of trial. As already mentioned, in 1978 the Supreme Court of Canada established an upper limit to non-pecuniary damages. It was recognized, however, that the upper limit should be adjusted to take into account the effect of inflation: Lindal v. Lindal, [1981] 2 S.C.R. 629, p. 641; and Ter Neuzen v. Korn, [1995] 3 S.C.R. 674, at para. 104. In Lindal, the Court held that on the facts of that case inflation was not a significant factor because the trial judgment had been delivered in April of 1978, four months after the trilogy. In Lindal the injury occurred in May 1975. It was then accepted that the proper date for determination of non-pecuniary damages was not the date the cause of action arose. [87] When determining the damages for non-pecuniary loss a trial judge generally starts with recognition of the limit as it is at the time of trial. I do not agree that non-pecuniary damages should be awarded based on the trilogy amount at the date of injury. This would amount to a change in the method of calculation of damages to avoid the result of the legislation. However, the fact that the Supreme Court of Canada has recognized the effect of inflation as the basis for the increase in the upper limit for non- pecuniary damages focuses the debate about the proper method of dealing with interest for non-pecuniary damages. [88] The issue of whether interest should be payable on non-pecuniary damages has given rise to a great deal of discussion but it cannot be said that a consensus has arisen as to how best to deal with the issue. It is generally accepted that interest contains a component which is designed to deal with the declining value of the dollar. However, that is not the sole component of interest. On the one side is the specter of over compensation as a result of the combination of the application of pre-judgment interest as specified in the legislation and the adjustments of the upper limits set by the trilogy to account for inflation. On the other, there are the arguments that pre- judgment interest is a carrot to encourage early settlement of claims and that it is compensation for the loss to the plaintiff of the ability to invest the amount to his or her benefit. [89] Where interest is payable on non-pecuniary damages there have been three approaches to the application of interest, two of which have been used in both the Trial Division and in this Court. That is, there are conflicting decisions in both the Trial Division and the Court of Appeal. One approach is that used in Smith Young where the interest is applied to the non- pecuniary damages as valued at the time the cause of action arose. The more Page: 33 traditional approach is that interest is payable from the time the cause of action arose, though damages may have been calculated as of the time of trial. The application of this approach in this Province can be traced to the decision of Puddester J. in Power v. McDonald (1992), 96 Nfld. & P.E.I.R. 181. In passing, I would note that at para. 376 of that decision Puddester J. notes that traditionally, non-pecuniary losses are fixed in value as at the date of assessment. In Power v. McDonald, Puddester J. discussed the issue and fairly put the different views. He said, commencing at para. 382: As noted, the defence has suggested that one appropriate resolution of the matter would be to assess damages for non-pecuniary loss as at the date of injury, which would then allow the application of pre-judgment interest at the full statutory rate to apply thereafter. However, this is contrary to the long standing practice of the court, which is to assess non-pecuniary loss in terms of the value of such loss as at the date of assessment. I see no basis to depart from this clearly- recognized and fully appropriate practice, either on principle, or on any of the particular facts of this case. This being the case it could then be said that a logical resolution is to recognize, in the awarding of pre-judgment interest on non-pecuniary loss, the fact that the traditional process of assessing these damages, when considered in terms of money, already provides some compensation for "loss of use" by the very fact of the inherent recognition of the effect of inflation in the award itself. It could then be argued proper to award pre-judgment interest at a rate which would appropriately compensate for the effect of the difference between the statutory interest rate and the "interest rate" already recognized or "applied" by virtue of the inherent "grossing-up" process in the award itself. As noted earlier, the plaintiffs raised, but did not concede the validity of, a possible argument that there may be an "intermediate" position, under which interest at the full statutory rate would be awarded on the quantum of non- pecuniary damages valued as at the date of injury, and in addition, interest at an "adjusted" rate would be awarded on the increase in that quantum resulting from inflation between the date of loss and the date of assessment. However, it is not appropriate to consider the relative merits of alternative means of "adjusting" the statutory interest rate until it is determined whether an adjustment, of any nature, is itself appropriate. While analysis from the perspective of principle does show arguable support for the defence position with respect to the application of the pre- judgment interest provisions, it must be remembered that it is the Act itself which provides for the award of that interest. The court is governed by the requirements of the Act, and so the ultimate question must be what does the Act expressly or impliedly require or permit in this regard? Page: 34 Under s. 3.(1) pre-judgment interest is to be awarded by the court on the judgment generally. Section 3.(2) sets out certain categories of damages on which pre-judgment interest is not to be allowed. Among these exceptions, the Act expressly identifies future pecuniary loss. It is significant that this exception is limited to future pecuniary damages, and does not extend to any future component of non-pecuniary damages, which as noted, are also traditionally valued as at the time of assessment. However, the exception is of further relevance as well, in that it shows clearly that the legislature had in mind a distinction between "pecuniary" damages and the other category - "nonpecuniary" damages. It is also significant that the Act itself specifies some differences in the applicable rate, depending on the nature of the damages. Section 4.(1) specifies a single (averaged) rate for all judgment interest awarded under s. 3. However, s. 4.(2) creates an exception to that rate, applying a slightly different formulation to damages awarded for expenses incurred and loss of income to the date of assessment. Considering both these sections together, it seems clear that the intention of the legislature is that the award of non-pecuniary damages will be treated the same as all damages in the judgment, save those specific exceptions created under the statute itself. Based on analysis to this point, the Act appears to mandate the award of interest on non-pecuniary damages at the general statutory rate. However, s. 3.(3) of the Act must also be considered. It provides: 3.(3) Where it is proven to the satisfaction of the court that it is just to do so having regard to the circumstances, the court may, with respect to the whole or any part of the amount for which judgment is given, (a) refuse to award interest under this Act; or (b) award interest under this Act at a rate or for a period or both other than a rate or period determined pursuant to section 4. While this provision clearly gives authority to the court to change or eliminate altogether the pre-judgment interest rate applicable to all or any part of the judgment, the power to do so is limited to occasions where it is proved that the "circumstances" make it "just to do so". In my view, such language, when considered with the other provisions of the Act noted above, requires that the justification for a variation from the statutory framework must be found within the evidence, and the particular circumstances arising from that evidence, in the case in question. It does not arise by virtue of the court's assessment of a general principle applicable to a particular category of damages, and which would equally apply to create such justification in every case where that category of damages forms part of the judgment. Indeed, recognition of this approach is inherent in the Page: 35 words of the trial judge in Borland, [(1984), 49 O.R. (2d) 165] who referred to the prima facie "right" under the statute for a plaintiff to receive interest on non- pecuniary damages at the statutory rate. [Emphasis in original] [90] Power v. McDonald stands for the proposition that as a matter of statutory interpretation the Legislature intended that judgment interest on non-pecuniary damages be applied from the date the cause of action arose to the date of judgment. The notion that s. 3(3) could or should be used to permit a variation of this is rejected. Puddester J. held that justification for s. 3(3) must be found in the evidence and the particular circumstances not in “general principle application of a particular category of damages”. In other words, Power v. McDonald is based on the idea that had the legislature intended that a particular class of damages (non-pecuniary damages), which are specifically mentioned in the Act, be treated differently, it would have said so. The Legislature is presumed to know the law: non-pecuniary damages are determined at the date of assessment. When the Judgment Interest Act was passed in 1983, the trilogy had been decided (1978) and Lindal had made it clear that the upper limit for non-pecuniary damages would be adjusted for inflation. [91] Power v. McDonald was followed by Green J., as he then was, in Mayo v. Harding (1993), 111 Nfld. & P.E.I.R. 271. Both were cited with approval by Steele J. in Taylor v. Hogan (1998), 160 Nfld. & P.E.I.R. 93 (NLCA). In Wall v. McGrath (1996), 139 Nfld. & P.E.I.R. 208, Green J. took the same position as in Mayo v. Harding, though he acknowledged that Robertson v. Pearlgate Lanes (1995), 130 Nfld. & P.E.I.R 184, took a different view. Neither Power v. McDonald, nor any of the other cases which have followed or adopted its reasoning, including Taylor v. Hogan, was cited in Smith Young, upon which the appellant relies. [92] Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, Cory J, considered Borland v. Muttersbach (1985), 53 O.R. (2d) 129, (C.A.). Commencing at para. 116, he said: In Borland consideration was given to the question of prejudgment interest. Objection was taken to the award of prejudgment interest on the non- pecuniary general damages of one of the plaintiffs. The award was made under the discretionary power conferred on the trial judge by s. 36(6) of the Judicature Act, R.S.O. 1980, c. 223. That subsection permits the judge to vary the rate of interest and the period for which it is payable, “where he considers it to be just to Page: 36 do so in all the circumstances”, from the rate prescribed in s. 36(3) of the Act for general or non-pecuniary damages. It was contended in Borland that since the ceiling on awards for non- pecuniary damages established by the “trilogy” of cases from this Court could be increased to reflect inflation (Lindal v. Lindal, [1981] 2 S.C.R. 629), the award of prejudgment interest on the inflated sum amounted to a double payment. The Court of Appeal did not agree and upheld the trial judge’s decision on this matter. The trial judge in Borland had observed that the award adjusted for inflation buys no more than the original figure did in 1978. He went on to determine that whatever the award, the statute gives the plaintiff the prima facie right to receive prejudgment interest on it at the prevailing prime rate. In the absence of such a guarantee, there would be no incentive for defendants to make advance payments, thereby foregoing investment income. He concluded that the fact of inflation is not a proper ground for depriving plaintiffs of their prima facie right to receive prejudgment interest. In my view, the decision in Borland is correct and the reasoning should be applied to the award made to Botiuk. This is what the trial judge did and, with great respect, the Court of Appeal erred in varying his decision pertaining to the award of interest. Borland was considered by Puddester J. in Power v. McDonald. It should be noted that Borland has been distinguished by the Court of Appeal of Nova Scotia in Bush v. Air Canada (1992), 109 N.S.R. (2d) 91 and Hiltz and Seamone Company Limited v. Nova Scotia (1999), 173 N.S.R. (2d) 341 on the basis of the difference in the provisions of the Ontario Judicature Act applicable in Borland and the those of the Nova Scotia Judicature Act applicable in Bush and Hiltz and Seamone Company Limited. After Borland was decided, and following a report of the Ontario Law Reform Commission (1987) and the Osborne Report of 1988, the law of Ontario was changed to provide for a lower rate of pre-judgment interest on non-pecuniary damages, though causes of action which arose prior to October 23, 1989 continued to be governed by the law as stated in Borland. (See Koukounakis v. Stainrod (1995), 23 O.R. (3d) 299 for a discussion of the progress of the law of Ontario during the 1980s.) [93] The third approach is represented by the decision of the English Court of Appeal in Birkett v. Hayes, [1982] 1 W.L.R. 816 (C.A.) where a reduced rate of 2% was awarded. This approach is also reflected in s. 4(1) of the Alberta Judgment Interest Act. (See also the decision of Doherty J.A., for the Ontario Court of Appeal, in Koukounakis v. Stainrod.) I should add Page: 37 that a fourth approach would deny interest on non-pecuniary damages. See: Court Order Interest Act, RSBC 1996, c. 79, s. 2(e). [94] In my view, the approach articulated in Power v. McDonald and adopted by this Court in Taylor v. Hogan is entirely consistent with long established principles of statutory interpretation and the law of damages. It is the approach taken by the trial judge and she cannot be said to have erred in doing so. [95] I acknowledge the long standing policy debate about whether the present law provides over compensation. It could be said that the more prevalent view in Canada is that the full rate of pre-judgment interest added to non-pecuniary damages could result in over compensation. Power v. McDonald and Taylor v. Hogan accept that if this results in over compensation it was the intention of the Legislature. There are numerous examples where other provinces have addressed the issue by specifying that a reduced interest rate apply or by delegating discretion to others to apply a reduced rate. As noted above, in British Columbia no interest is payable on non-pecuniary damages. [96] The alternative chosen by my brother Mercer would represent a fifth approach: to adjust the trilogy limit to prevent overcompensation by the application of the Judgment Interest Act. A disadvantage of this alternative is that it would add a proviso to every Newfoundland and Labrador case awarding non-pecuniary damages. The awarding of non- pecuniary damages generally involves comparisons between similar cases. Where one case being compared emanated from Newfoundland and Labrador the comparable amount of damages would have to be adjusted to add the amount removed to account for over compensation. Further, when done on an ad hoc basis, the determination of the percentage of the Bank of Canada rate attributable to the impact of inflation on the value of money from the date the cause of action arose would need the assistance of expert evidence. In my view, if the prevailing interpretation is unintended, the appropriate remedy is with the Legislature, which has primarily been responsible for the introduction of interest on amounts payable under judgments. Page: 38 Interest on pecuniary damages [97] The Judgment Interest Act specifies, in s. 4(2), how pre-judgment interest is to be calculated on lost income. There is no interest payable as to future loss of income. [98] As to pre-trial loss, the Act clearly anticipates that interest be determined on the basis of the amount lost over each 3 month period from the day the cause of action arose up to the day of judgment. In other words, the premise is that the calculation will be made on the basis of the dollar value as the loss occurs over time. By calculating the damages in this way the injured party begins to receive interest on the amount owed more or less from the point the income would have been earned were it not for the injury. [99] The trial judge specified that the interest should not commence to run until 2008. The appellant says that this was the correct approach because the trial judge calculated the damages in 2008 dollars and it would be over compensation to add interest on top of that. The respondent, in his cross- appeal says that the trial judge erred; she should have awarded interest from the date the cause of action arose. [100] I see no error in the trial judge’s decision to specify that pre-judgment interest does not commence until 2008. This is because while the Act clearly assumes that pecuniary damages will be assessed based on the value at the time the loss is incurred in this case, for reasons that she explained, the trial judge assessed the economic loss in 2008 dollars. In other words, this case would fall within those cases identified by Puddester J. as properly falling within the discretion provided in s. 3(3) of the Judgment Interest Act. Summary [101] In summary: 1. The appellant has not demonstrated any basis to interfere with the trial judge’s finding that the appellant’s breach of a duty of care to the respondent caused the respondent to have to undergo a more radical surgical procedure in May 2000 than he would have had if the surgery had been performed in October 1999. 2. The appellant has not demonstrated that the decision of the trial judge respecting non-pecuniary damages should be disturbed. Page: 39 3. The trial judge erred in law in applying the balance of probabilities test to determine the hypothetical loss of earning capacity of the respondent from September 1, 2001 to the date of trial and she made a palpable and overriding error in the calculation of future loss of earning capacity. 4. The trial judge made no error in her application of the Judgment Interest Act. 5. The appeal is allowed in respect of loss of earning capacity. The following shall be substituted for the order of the trial judge: a) The plaintiff (respondent) shall have for past earning losses between September 2001 and September 2008 a total of $426,740, plus pre- judgment interest from October 1, 2008; b) The plaintiff (respondent) shall have for future earnings losses, the present value of $32,650 for 4 years using a 1.6% discount rate plus 19.5% for pension and fringe benefits. Costs [102] The appellant is entitled to costs in this Court on a party and party basis. The order for costs in the Trial Division is not disturbed. ______________________________ M.A. Cameron, J.A. I Concur: _____________________________ J.D. Green, C.J.N.L. Mercer, J.A.: (Dissenting in part) [103] I concur with the reasons of Cameron J.A. except in respect of the issue pertaining to non-pecuniary damages. In my view, to assess non- pecuniary damages as of the date of trial, i.e. by strict reference to the trilogy limit adjusted for inflation, and then without further inquiry to award the full rate of pre-judgment interest from the date of injury may result in over Page: 40 compensation which would be contrary to principle and should not be countenanced. [104] As Cameron J.A. has explained in her review of the Judgment Interest Act and the case law there have been differing views expressed in this Court on the application of s. 3(3) of that Act where the assessment of non-pecuniary damages has fully allowed for inflation since the date of injury. Accordingly, it is appropriate that a full panel of this Court re- examine that matter in the future bearing in mind the comments of Cory J. in Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3 and the subsequent appellate case law in Canada. The prevention of over- compensation in this case is not however in my view dependent upon application of s. 3(3) of the Judgment Interest Act though further comment on that Act is warranted. [105] Prior to enactment of the Judgment Interest Act in 1983 the common law in this jurisdiction prohibited an award of pre-judgment interest on damages, non-pecuniary or otherwise. See Goodyear & House Ltd. v. Eaton (1971), 2 Nfld. & P.E.I.R. 56 (NLTD); Baldwin v. Chalker (1984), 48 Nfld. & P.E.I.R. (NLCA) and see Bank of America Canada v. Mutual Trust Co., [2002] 2 S.C.R. 601. [106] That prohibition was reversed by the Judgment Interest Act which is similar to legislation in other Canadian jurisdictions. Such legislation provides a statutory basis for, among other things, the award of pre- judgment interest which is “intended in part to compensate for the effects of inflation between the date of the event giving rise to the cause of action and the date of judgment.” Koukounakis v. Reid (1995), 23 O.R. (3d) 299 (Ont. C.A.) citing Watkins v. Olafson, [ 1989] 2 S.C.R. 750 at para. 51. It follows that the award of pre-judgment interest to the respondent in this case provides compensation for the effects of inflation in the manner provided by statute. [107] Compensation to the respondent for the effects of inflation is further provided by the award being assessed at date of trial dollars which reflects the adjustment to the trilogy limit as contemplated by Lindal v. Lindal (No. 2), [1981] 2 S.C.R. 629. In Lindal Dickson J. stated: I would here reaffirm, for all the reasons outlined above, a rough upper limit of $100,000 for non-pecuniary loss in cases of severe personal injury, as providing a measure of uniformity and predictability in this difficult area. None of us, Page: 41 however, is unaware of, or unaffected by, the inflationary trend and the erosion in the value of money since the trilogy of cases was decided by this Court. The value of money has been steadily declining. It seems only reasonable therefore to reaffirm the statement in Andrews, at p. 263, that the figures must be viewed flexibly in recognition of, inter alia, “changing economic conditions”. Such amount of $100,000 should be subject to increase upon proof of, or agreement as to, the effect of inflation on the value of money since the decisions of this Court in Andrews, Teno and Thornton. A Court may take judicial notice of the fact than an inflationary trend exists, but I should not think that the precise monthly or yearly inflation rate is normally a fact of which such notice may be taken. pp. 640-641 ... Account may be taken of inflation in awarding damages and it is not suggested that the figure of $100,000 should not vary in response to economic conditions, in particular, the debasement of purchasing power as a result of inflation. p. 643 [108] Those passages indicate that the aim of the Supreme Court of Canada was to ensure that the value of an injured party’s award not be eroded by inflation. Lindal did not discuss the effect of a statutorily mandated order for pre-judgment interest on such award. In my view, it cannot be said to be authority for the proposition that all future awards must fully compensate for inflation through adjustments to the trilogy limit regardless of statutorily imposed compensation for the effect of inflation. I note that Dickson J. in Lindal at p. 634 specifically affirmed that the principle of compensation is to provide fairness to both parties. Yet as noted in Koukounakis “awards which factor inflation into the assessment of non-pecuniary damages and also provide pre-judgment interest at the full rate do result in over- compensation for inflation” (and see Leischner v. West Kootenay [1986] 3 W.W. R. 97 at 134-137 (B.C.C.A.); S. Waddams, The Law of Damages, 2nd ed. (Aurora, Ont: Canada Law Book, 1994) at para 7.660ff). [109] The solution to over-compensation in such circumstances is not to assess damages as of the date of injury. That would be contrary to established practice – See Power v. McDonald (1992), 96 Nfld. & P.E.I.R. 181 at page 382. An assessment of damages made at trial must be able to take into account post-injury case law which will reflect, among other things, current views of the compensation required to alleviate the effects of particular injuries. Page: 42 [110] In my view, the appropriate solution is for the trial judge to recognize the compensation for inflation inherent in basing an award strictly on the trilogy limit determined at the date of trial, and for the trial judge, bearing in mind the effect of the Judgment Interest Act, to adjust the award to the extent required to ensure that full compensation for inflation is assured and double recovery is avoided. In many jurisdictions the relevant statutory provisions governing pre-judgment interest grant the trial judge a discretion to adjust that interest which discretion can be exercised to avoid double recovery. See for example Bush v. Air Canada, [1992] 109 N.S.R. (2d) 91 (N.S.C.A.). I see no principled impediment to recognizing a similar discretion at common law in the establishment of the award of non- pecuniary damages. [111] The respondent argued that the legislature must be presumed to have been aware of the trilogy case law, presumably including Lindal, and must be taken to have sanctioned the inherent over compensation of inflation noted above. Usually the presumption of legislative knowledge of the common law is invoked to interpret the provisions of the statute under consideration rather than to challenge further evolution of the common law. I do not accept that the said presumption is a bar to forestalling overcompensation for inflation for the reasons now stated. [112] Firstly it is also presumed that legislatures do not intend to change the policy or established principles of common law except by clear and unambiguous language. Sullivan on the Construction of Statutes, 5th ed., Ruth Sullivan, July 2008, LexisNexis Canada Inc. at pp. 431. It is a principle of the common law of tort as affirmed in Lindal that the purpose of awarding damages for personal injury is compensation not punishment and in the assessment of compensation both parties are to be treated fairly. Overcompensation offends that principle. [113] Secondly the inherent jurisdiction of the court to adapt the common law can only be excluded by the legislature by the most explicit language. See R. v. Amato, [1982] 2 S.C.R. 418. The Judgment Interest Act, being silent on the point, cannot be said to have clearly barred the courts from adapting the trilogy case law to avoid overcompensation. In fact it is arguable that enactment of the statutory provision providing for pre- judgment interest on non-pecuniary damages excludes operation of the common law rule that addresses compensation for inflation. See Sullivan, p. 447, citing Reference re G.S.T., [1992] 2 S.C.R. 445. Page: 43 [114] I acknowledge the approach suggested in para. 110 above is not without problems, as noted by Cameron J.A. in para. 96 of her reasons. The matter of the comparability of case law could be minimized by the clear articulation by trial judges of the adjustment required to account for over compensation. The matters of proof could be resolved in similar manner as the discretionary adjustments to the statutory interest rate permitted in certain Canadian jurisdictions. [115] In the result, I would order that the award for non-pecuniary general damages be re-assessed in accordance with the foregoing and grant leave to the parties to make further submissions on that issue. ______________________________ K.J. Mercer, J.A.