Lantin et al v Seven Oaks General Date:, 2018 MBCA 57

Citation: Lantin et al v Seven Oaks General Date: 20180516 Hospital, 2018 MBCA 57 Docket: AI17-30-08869 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN : JOCELYN LANTIN, AS LITIGATION ) M. T. Green and GUARDIAN FOR ALEXANDER LANTIN ) L. W. Bowles ) for the Appellant (Plaintiffs) Respondents ) ) - and - ) R. M.

Beamish ) for the Respondent SEVEN OAKS GENERAL HOSPITAL ) ) (Defendant) Appellant ) Appeal heard: ) January 23, 2018 - and - ) ) REX SOKOLIES ) Judgment delivered: ) May 16, 2018 (Defendant) ) On appeal from Lantin et al v Sokolies et al , 2017 MBQB 40 Burnett JA Introduction [ 1 ] The plaintiff was awarded damages due to the failure of the defendant Seven Oaks General Hospital (the defendant) to diagnose and treat tuberculosis in a timely fashion.

The defendant appeals the amounts awarded to the plaintiff for loss of earning capacity and non-pecuniary damages. [ 2 ] The trial judge failed to make any allowance for contingencies in her analysis of the plaintiff’s loss of earning capacity, with the result that the award for that loss was inordinately high. There is, however, no basis for appellate intervention with respect to the award for non-pecuniary damages. Background [ 3 ] In her reasons, the trial judge provided a comprehensive

summary of the evidence relating to the plaintiff and his family, as well as his illness, treatment, recovery, education and employment. [ 4 ] Briefly stated, the trial judge found that, prior to the events giving rise to this action, the plaintiff did exceptionally well in school, was particularly passionate about mathematics, excelled at sports and was also a musician.

In terms of education, the trial judge noted that the plaintiff’s family and extended family are well educated and place a high value on education, and that it was his parents’ clear expectation that the plaintiff would go to university and continue on to a post-secondary degree. [ 5 ] In early 2008, the 16-year-old plaintiff was taken to the defendant on a number of occasions with various flu-like symptoms. On April 23, 2008, a chest x-ray was taken. A radiologist wrote a report indicating that the possibility of tuberculosis should be considered. The report was filed in error, and there was no follow-up.

The defendant admits that this action constituted negligence. [ 6 ] The plaintiff’s symptoms continued to worsen. In July 2008, he was admitted to hospital. An MRI disclosed that he had lesions in his brain, and he was diagnosed with tuberculosis. [ 7 ] The trial judge found that the defendant’s negligence delayed the detection and diagnosis of the plaintiff’s

tuberculosis, that the tuberculosis spread to his brain, and that it ultimately caused a stroke and grand mal seizure. While causation was an issue at trial, the defendant has not appealed the trial judge’s ruling on that issue. [ 8 ] In September 2008, the plaintiff returned to high school. He graduated the following June, and in September 2009 he enrolled in first-year university. In the summer and fall of 2012, the plaintiff entered the Faculty of Social Work. He found the social work program relatively easy, and he was placed on the Dean’s Honour List. The plaintiff graduated with an overall GPA of 3.59.

Following his graduation in 2013, the plaintiff obtained employment at Child and Family Services (CFS) as a protection worker. In that position the plaintiff was required to do a lot of driving which he found physically and mentally exhausting. [ 9 ] In July 2014, the plaintiff resigned as a protection worker but, later that fall, CFS offered the plaintiff further employment in an administrative capacity. According to the plaintiff, CFS “really liked [his] work ethic”, and he was hired as a quality assurance assistant.

The plaintiff no longer did front line work, and he described the new position in the following terms: That position is responsible for reviewing and analyzing the, the different work, front line workers, permanent ward workers, what social workers do based on the case management standards, our agency’s policies and procedures. So I try to support them, analyze what, what different categories we need to address, where our strengths are, where are [ sic ] weaknesses are and support, support them and making sure that they’re doing their best but at the same time meeting the expectations of the province. . . .

And for this job position I’m able to work on my own pace, not as a front line worker where the pace is somewhat dictated by, by the, the different families you serve or your supervisor. [ 10 ] At the commencement of the trial, plaintiff’s counsel advised that the issues were the extent to which the plaintiff had been injured as a result of the failure to diagnose and treat tuberculosis in a timely fashion and the proper quantification of that injury. [ 11 ] In support of his claim, the plaintiff and his mother Jocelyn Lantin (the mother) testified about the effects of the illness and the brain damage.

In addition to the plaintiff and the mother, the plaintiff called Dr. Earl Samuel Hershfield, an infectious disease specialist, and James John Smith (Smith), an accountant who provided “opinion evidence with respect to the loss of income suffered by [the plaintiff]”. [ 12 ] The defendant attempted to provide expert evidence from David Victor Ness (Ness), who had studied the reliability of career predictions made by high school students. The trial judge refused to allow him to testify.

The Trial Judge’s Decision [ 13 ] The trial judge described the plaintiff as an exceptional young man, with a supportive family, who grew up in a culture where the expectations placed on him were extremely high. In her view, the plaintiff had demonstrated a “remarkable recovery in the circumstances” (at para 65): Perhaps more attention should be paid to the tenacity [the plaintiff] has demonstrated in what has been a remarkable recovery in the circumstances.

His grit and determination, despite his many challenges, have led him to graduate from high school without missing a year, continue on in university and do well, and graduate from social work and find a career there. He has also married and started a family.

In my view he has demonstrated true success. [ 14 ] The trial judge was satisfied that: • the plaintiff lost sufficient ability in mathematics to become an accountant or an actuary; • it is most probable that the plaintiff would have gone into the Faculty of Business to pursue a career in accounting; • it is highly probable that, absent the defendant’s negligence, the plaintiff would have become an accountant; • if the plaintiff had become an accountant, he would have earned at least the average salary of an accountant in Manitoba; • the plaintiff suffers from physical impairments which affect his ability to drive due to his inability to control his right foot; • it is likely that the plaintiff’s level of functioning will not improve in the future to positively affect his employability; and • due to the diminution of the plaintiff’s abilities, it is likely that he will not rise to a senior management level in social work or in any other field. [ 15 ] The trial judge also felt that, “[a]lthough one cannot predict whether [the plaintiff] will continue to work until the age of 65 and remain a social worker for the rest of his career, these are reasonable assumptions” (at para 85).

[16] The trial judge concluded (at paras 86-87): Mr. Smith quite candidly admitted that one cannot determine the damages suffered by [the plaintiff] with any level of precision. However, he also maintained that the conclusions he reached on the assumptions he made were not simply speculative. Predicting thefuture is not an exact science and precision is not the test. The range suggested by Mr. Smith of $1 to $2 million dollars in my view isnot unrealistic and is far more reflective of the loss of earning capacity suffered than the $40,000 suggested by the defendant. I accept Mr.

Smith’s opinion that [the plaintiff] probably falls on the lower end of the range and accordingly award him damages for lossof earning capacity in the amount of $1.3 million dollars. [emphasis added] The Issues and Standard of Review [17] The defendant raises four issues.

In particular, it says that the trial judge erred: 1. by awarding damages that were not justified on the evidence; 2. in finding that the plaintiff’s ability in mathematics was diminished; 3. in finding that any impairment will be permanent, and that the plaintiff’s brain damage is irreversible; 4. in refusing to admit the evidence of Ness. [18] This Court’s ability to review a trial judge’s assessment of damages was described in Naylor Group Inc v Ellis-DonConstruction Ltd, 2001 SCC 58 (at para 80): It is common ground that the Court of Appeal was not entitled to substitute its own view of a proper award unless it could be shown thatthe trial judge had made an error of principle of law, or misapprehended the evidence (Lang v.

Pollard, (SCC), [1957]S.C.R. 858, at p. 862), or it could be shown there was no evidence on which the trial judge could have reached his or her conclusion(Woelk v. Halvorson, (SCC), [1980] 2 S.C.R. 430, at p. 435), or the trial judge failed to consider relevant factors in theassessment of damages, or considered irrelevant factors, or otherwise, in the result, made “a palpably incorrect” or “wholly erroneous”assessment of the damages (Andrews v. Grand & Toy Alberta Ltd., (SCC), [1978] 2 S.C.R. 229, at p. 235; LaurentideMotels Ltd. v. Beauport (City), (SCC), [1989] 1 S.C.R. 705, at p. 810; Widrig v.

Strazer, (SCC), [1964]S.C.R. 376, at pp. 388-89; Woelk, supra, at pp. 435-37; Waddams, supra, at para. 13.420; and H. D. Pitch and R. M. Snyder, Damagesfor Breach of Contract (2nd ed. 1989) 15§5).

Where one or more of these conditions are met, however, the appellate court is obliged tointerfere. [emphasis added] See also Reilly v Lynn, 2003 BCCA 49 at para 99, supplementary reasons, 2003 BCCA 519, leave to appeal to SCC refused, 2004CarswellBC 13; HL v Canada (Attorney General), 2005 SCC 25 at paras 306, 326; Schenker v Scott, 2014 BCCA 203 at para 46; andDansereau v The City of Winnipeg, 2014 MBCA 18. [19] In Dansereau, Mainella JA said (at para 6): Deference is owed to a judge’s award of damages absent the judge making an error in law or principle, coming to a conclusion withoutevidence, or making an award that was wholly erroneous by being either inordinately low or inordinately high in the circumstances(Woelk et al. v.

Halvorson, (SCC), [1980] 2 S.C.R. 430 at 435-36). In arriving at a damages award, a judge’sassessment of the evidence, or proportioning of damages, is a question of fact that cannot be set aside on appeal absent demonstration ofpalpable and overriding error. [20] The parties agree, as do I, that the second and third issues are to be reviewed on the standard of palpable and overridingerror. In Benhaim v St-Germaine, 2016 SCC 48, Wagner J (as he then was) described that standard (at paras 38-39):

It is equally useful to recall what is meant by “palpable and overriding error”. Stratas J.A. described the deferential standard as followsin South Yukon Forest Corp. v. R., 2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46: Palpable and overriding error is a highly deferential standard of review . . . . “Palpable” means an error that is obvious. “Overriding”means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pullat leaves and branches and leave the tree standing. The entire tree must fall. Or, as Morissette J.A. put it in J.G. v.

Nadeau, 2016 QCCA 167, at para. 77 , (translation) “a palpable and overriding error is inthe nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last two notions.” [21] With respect to the second and third issues, there was an evidentiary basis for the trial judge’s findings that theplaintiff’s ability in mathematics is diminished and that the brain damage is irreversible.

While I might not have made the same findings,I have not been persuaded that, in making those findings, the trial judge made a palpable and overriding error. [22] Similarly, in refusing to admit the evidence of Ness, I see no reversible error. [23] The appeal as it relates to issues 2, 3 and 4 is therefore dismissed. [24] The balance of these reasons will address whether the trial judge erred in her assessment of damages for loss of earningcapacity and general damages.

Smith’s Report and Testimony [25] In his report, Smith estimated the plaintiff’s damages “as the present value of [the plaintiff]’s anticipated future earningsabsent the incident, less his anticipated future earnings subsequent to the injury, through to his anticipated age of retirement.” [26] On two occasions in his report, Smith emphasised: Due to the significant assumptions required regarding [the plaintiff]’s future career paths both prior to and subsequent to the incident, thequantum of damages suffered by [the plaintiff] is not determinable with any significant [or “reasonable”] level of precision.

For that reason, Smith included a range of damages based on differing assumptions. [27] At trial, Smith confirmed that his report was based on various assumptions and that, at the time he prepared the report(November 7, 2012), the plaintiff’s earnings, short term and in the future, were not known. As he testified: His future income, even if we started with today’s income of 40,000, those calculations are premised on the basis that that income wouldnot substantively change.

We had no way of knowing what would actually occur. [emphasis added] [28] Smith further qualified his opinion with the observation that “some people can work to their capacity and someone canchoose to work under their capacity, so we’re really not in a position to give you a hard number by any means.” [29] In his report, Smith considered two scenarios.

The first scenario calculated damages on the basis that the plaintiff didnot complete post-secondary education, and the second scenario calculated damages on the basis that he completed his Bachelor ofSocial Work and gained employment in that field where he would continue until retirement. In each scenario, Smith calculated theplaintiff’s potential loss compared to the average earnings of a university graduate, a chartered accountant and an actuary. [30] Smith testified that: All three of these are illustrative and, certainly, the court shouldn’t be restricted by these scenarios.

These were based on somediscussions as -- that we had with the parties as to what they thought [the plaintiff] might enter into, but I can tell from experience thatnotwithstanding you have someone saying they want to become a CA even when they’re, in fact, entering the course, you can’t guaranteethat they will, in fact, stay in it. So [the plaintiff] could have taken on any number of things.

These are simply scenarios and I think they provide an indication of if you assume a certain loss of income, this would be the general result, but I can’t tell you that he would have made a hundred thousand dollars or two hundred thousand dollars more. I can simply use them as illustrations of if you accept that loss of income, this is the result. [emphasis added] [ 31 ] At trial, Smith confirmed that the first scenario in his report was not worthy of consideration given that the plaintiff had obtained a degree in social work and was employed as a social worker.

This left the second scenario, where Smith assumed that the plaintiff would remain a social worker throughout his working career. In this scenario Smith estimated the present value of the loss of earnings by comparing the plaintiff’s projected earnings as a social worker with the projected average earnings of a university graduate, a chartered accountant and an actuary.

Smith estimated those losses as $56,210, $1,673,326 and $2,061,870, respectively. [ 32 ] All of the figures in Smith’s report were average levels of income, and in his words, “they’re all based on, on averages so they’re inherently going to be wrong.

The question is only by how much.” [ 33 ] Significantly, Smith acknowledged that, “our calculations do not contain any contingency factor and/or discount to reflect the possibility of accidents, illness, early death, extended life or impact of other lifestyle choices.” [ 34 ] When asked why he had not factored any contingency into his calculations, Smith said that he was reluctant to use any numbers that are effectively those of an actuary, that it was “a little beyond our competence” and “a little outside of our background.” [ 35 ] In making his calculations, Smith assumed that the plaintiff would never rise to a management level in the social work field. [ 36 ] Smith also made a “standalone calculation” of the financial impact to the plaintiff if he assumed that the plaintiff had always intended to be a social worker and was unable to reach a senior management position.

That calculation resulted in a loss of earnings of $465,146. [ 37 ] In his report Smith concluded: Consequently, based upon the information and documents reviewed, the explanations provided to us and subject to the qualifications and restrictions noted herein, the damages calculated are in the range of $50,000 to $2,000,000 as at December 31, 2012.

It is our belief, that while possible, the lower end of the range is unlikely and it is more likely that the loss will be somewhere between $1,000,000 and $2,000,000. [emphasis added] The Parties’ Positions [ 38 ] The defendant claims that the trial judge should not have used the loss of earning capacity approach to calculate damages because there were too many future and hypothetical events to consider and insufficient evidence to predict the plaintiff’s career path.

The defendant submits the trial judge should have used the capital asset approach, which recognizes that, although loss of potential earnings is not measurable in a pecuniary way, there has still been a loss that can be compensated with general damages for a lost capital asset. The defendant says that the trial judge also erred in the manner in which she applied the earnings approach.

She was obliged to consider all of the future and hypothetical events that are real possibilities, but she failed to do so. [ 39 ] The defendant argues that the award for loss of earning capacity was grossly inflated because the plaintiff’s overall capacity to earn income had not been significantly diminished.

The defendant submits the trial judge erred in finding that, absent the negligence of the defendant, the plaintiff would have become an accountant, that, in light of his illness, he would never rise to a management position in his current job as a social worker, and that he would remain employed as a social worker. [ 40 ] Finally, the defendant says that the trial judge’s non-pecuniary damage award of $175,000 was unreasonably high. A more appropriate general damage award in this case would be $80,000. [ 41 ] The plaintiff submits that the choice of methodology was in the discretion of the trial judge.

Here the trial judge considered and applied the appropriate law when she decided to use the loss of earning capacity approach, and this discretionary decision was made only after a thorough consideration of the evidence. The trial judge then made a discretionary determination as to the appropriate level of damages having considered the range opined on by Smith. [ 42 ] The plaintiff also says that the damages awarded for pain and suffering were appropriate.

General Principles [43] It is useful to begin with reference to the principles which apply when assessing damages for a loss of future earnings: 1. It is the loss of capacity to earn which must be compensated, and it is the capacity which existed prior to the injury that must bevalued. “A capital asset has been lost: what was its value?” (Andrews v Grand & Toy Alberta Ltd, (SCC), [1978] 2 SCR229 at 251). 2. A trial judge has a discretion as to methodology.

While a particular approach may be more useful in certain circumstances, boththe loss of earning capacity approach and the capital asset approach are acceptable means of assessing a plaintiff’s loss of earningcapacity (see Perren v Lalari, 2010 BCCA 140 at para 32; Westbroek v Brizuela, 2014 BCCA 48 at para 64; Gillespie v Yellow CabCompany Ltd, 2015 BCCA 450 at para 2; and Knapp v O’Neill, 2017 YKCA 10 at paras 17-19).

In Lewis N Klar et al, Remedies in Tort (Toronto: Thompson Reuters, 1987) (loose-leaf updated 2017, release 11) vol 4 at 27-147, theauthors observe (at para 63.4): [T]he quantification of [the] loss of earning capacity may be proven on either an earnings approach or a capital asset approach. Theformer will be more useful when the loss is more easily measurable, and the latter will be more useful when the loss is not as easilymeasurable in a pecuniary way. 3.

The objective is fair compensation and requires an informed assessment or best estimate of “what the plaintiff would haveearned, had the injury not occurred” (MB v British Columbia, 2003 SCC 53 at para 49). As stated in Hay v Hofmann, 1999 BCCA 26 (atpara 67): [A] trial judge, in deciding on an award of damages under the heading of anticipated future loss, whatever term one actually uses, oughtto endeavour to make an informed estimate or assessment of anticipated loss as opposed to merely undertaking to do a computation.

Because one is considering the future which has about it always an aspect of the unknowable, contingencies positive and negative fall tobe considered. Ultimately, a best estimate is required and while there will almost invariably be mathematical calculations to beconsidered, a purely mathematical approach will usually not be appropriate because such an analysis is too limited in scope. [emphasis added] 4.

If the loss of earning capacity approach is utilized, it is an error in principle to fail to consider positive and negativecontingencies (see Andrews at p 263; Liebrecht v Egesz, 2000 MBCA 132 at para 45; Reilly at paras 101, 121; Hussack v ChilliwackSchool District No 33, 2011 BCCA 258 at para 92; and Schenker at paras 57, 69). 5. The less certainty with respect to the plaintiff’s future prospects or the greater the risk, the more likely it will be that acontingency allowance of some kind, either general or specific, will be required (Liebrecht at para 45). 6.

General contingencies are those which, as a matter of human experience, are likely to be the common future of all of us(Graham v Rourke (1990), (ON CA), 74 DLR (4th) 1 at 14-15 (Ont CA). These will include unemployment, illness,accidents, age-related dysfunction, the risk of future disability and the risk of a layoff or business depression (see Andrews at p 253;Wallace v Thibodeau, 2008 NBCA 78 at para 40, leave to appeal to SCC refused, 32955 (16 April 2009); and Gignac v InsuranceCorporation of British Columbia, 2012 BCCA 351 at paras 52, 54).

Specific contingencies are those which are peculiar to a particularplaintiff (Graham at pp 14-15; and Kern v Steele, 2003 NSCA 147 at para 60). 7. General contingencies are not readily susceptible to evidentiary proof and may be considered in the absence of such evidence(Graham at pp 14-15). However, in order to rely on a specific contingency, there must be evidence which is capable of supporting theconclusion that the occurrence of the contingency is a real, as opposed to speculative, possibility (Graham at p 15; and Gerula v Flores(1995), (ON CA), 126 DLR (4th) 506 at 518 (Ont CA). 8.

At the end of the inquiry, a trial judge should consider whether the award of damages is fair and reasonable in all of thecircumstances (see Simpson v Felicioni, 1985 CarswellMan 312 at para 24 (CA); Jablonski v Nault, 1990 CarswellMan 324 at para 25(QB); Hay at para 68; Parypa v Wickware, 1999 BCCA 88 at para 70; Reilly at para 101; Kern at para 66; Westbroek at para 65). Analysis and Decision [44] In the present case the trial judge erred when she found that: 1.

Smith assumed that it was most probable that the plaintiff would have become a chartered accountant and would have workedfull-time until his retirement; 2. the range suggested by Smith was $1,000,000 to $2,000,000; and 3. Smith opined that the plaintiff fell at the lower end of the range. [45] With respect to the first error, Smith made no such assumption. Smith was clear in his testimony that it was the court’s

responsibility to decide whether any of the assumptions in his report were reasonable or correct.

However, while the trial judge erred, I accept her finding that it is highly probable that, absent the defendant’s negligence, the plaintiff would have become an accountant. [ 46 ] With respect to the second error, Smith said in his report that “the damages calculated are in the range of $50,000 to $2,000,000”; “that while possible, the lower end of the range is unlikely” (clearly referring to the range of $50,000 to $2,000,000); and that “it is more likely that the loss will be somewhere between $1,000,000 and $2,000,000.” [ 47 ] Smith calculated the plaintiff’s loss of earning capacity if the plaintiff completed post-secondary education and was employed as a social worker, which he compared to the earning capacity of an accountant.

That calculation resulted in an income differential of $1,612,725. At the hearing before us, counsel for the plaintiff agreed that the high end of any range would be $1,612,725, not $2,000,000. [ 48 ] With respect to the third error, counsel for the plaintiff also agreed that Smith did not opine that the plaintiff would fall at the lower end of any range. [ 49 ] The second and third errors were both palpable and overriding, as they formed the basis for the trial judge’s award of $1,300,000: I accept Mr.

Smith’s opinion that [the plaintiff] probably falls on the lower end of the range [of $1,000,000 to $2,000,000] and accordingly award him damages for loss of earning capacity in the amount of $1.3 million dollars. [emphasis added] There is nothing in the trial judge’s reasons, other than this statement, to explain how the figure of $1,300,000 was determined. [ 50 ] The trial judge further erred when she failed to make any adjustment for contingencies. [ 51 ] Given these errors, it is my view that the trial judge’s award for the plaintiff’s loss of earning capacity resulted in “‘a palpably incorrect’ or ‘wholly erroneous’ assessment of the damages” ( Naylor Group Inc at para 80 ), that no deference is owed to the trial judge’s assessment, and that it is necessary to decide whether this Court is in a position to properly assess that loss. [ 52 ] A similar situation arose in Schenker .

There, Harris JA, speaking for the Court, concluded (at paras 56-57): Although the judge did make findings on a number of relevant matters, she did not apply those findings in a reasoned analysis to explain and justify the award. Rather, she appears to have plucked a number from the air leaving the Court and the parties to speculate on the basis for the award. In my view, the trial judge failed to provide adequate reasons justifying her award, misapprehended material evidence bearing on a fair award, and made an award that cannot be supported by the findings of fact she made.

In the result, I am satisfied that the judge’s failure to analyze the evidence (including the economic evidence), assess probabilities and the implications of her findings of fact to the assessment of Ms.

Schenker’s pecuniary loss were errors of principle which resulted in a wholly erroneous estimate of the damages. [ 53 ] The Court then considered whether it was in a position to assess Ms Schenker’s loss (at paras 83-84): Given my conclusion that the judge fell into error in her award for future loss of capacity, the question becomes whether it is possible to substitute a proper award that is consistent with the evidence and the findings of fact. In my view, we are in a position to undertake that analysis. Much of the evidence is uncontested.

The trial judge made some findings of fact that, when analyzed in conjunction with the assistance provided by the economists’ reports, allows for us to make a fair determination. Before undertaking that analysis, it is important to reiterate what is well-known. Determining a fair award is a matter of assessment, not calculation. In what follows I make use of the economic statistics because they are helpful in the circumstances of this case to identify, in general ways, the order of magnitude of loss based on certain key assumptions.

In the final conclusion, the award remains a matter of assessment. [ 54 ] There is considerable merit to the defendant’s submission that the loss of earning capacity approach should not have been used by the trial judge given the numerous and significant assumptions that she was required to make. I also have sympathy for the defendant’s submission that the uncertainties surrounding the plaintiff’s health, future employment and earnings are significant and

difficult to quantify. However, the authorities are clear that the trial judge had a discretion as to methodology, and I am satisfied that thedefendant’s legitimate concerns can be properly addressed when allowances are made for specific and general contingencies. Inparticular, I am satisfied, as was the Court in Schenker, that it is possible to substitute a proper award that is consistent with the evidence,the trial judge’s choice of methodology and her specific findings of fact. [55] Smith’s calculation of loss of earning capacity is based entirely on statistical information.

The Supreme Court ofCanada commented on the value of statistical information (albeit in the context of causation) in Benhaim. There the Court observed thatstatistical information must be viewed with some caution (at para 74), that “[w]ithout an evidentiary bridge to the specific circumstancesof the plaintiff, statistical evidence is of little assistance” and that the inferences that follow from statistical evidence “must be made withreference to the whole of the evidence” (at para 75). [56] It is important to consider the nature and extent of the plaintiff’s impairment resulting from the defendant’s negligence.

According to the trial judge, the plaintiff had made a remarkable recovery, but was left with diminished ability to do mathematics, aweakness in his right foot causing difficulty walking and driving (for more than 30-60 minutes), fatigue and occasional depression. Thetrial judge noted that the plaintiff’s tuberculosis had been resolved with minimal scarring in the brain and that there was markedimprovement in his neuroimaging, but she concluded that the medical evidence was that the plaintiff’s brain damage is irreversible.

Thetrial judge also referred to medical reports which confirmed that the plaintiff’s central nervous system appeared stable and that theplaintiff was doing well and appeared to be asymptomatic for the previous two years. [57] No medical or other expert evidence was adduced at trial to address the plaintiff’s current physical or mentalimpairments and his prognosis, or to opine on how those impairments might affect his employability.

There is no doubt that the failureto adduce such evidence has contributed to the difficulty in assessing the plaintiff’s loss of earning capacity and the damages that wouldbe fair and reasonable in the circumstances of this case. [58] Smith’s report was dated November 7, 2012, approximately three and one-half years prior to trial. Smith assumed that,while the likelihood of the plaintiff improving to pre-illness levels was unlikely, it remained possible. He noted that, if the plaintiff’simpairment declined or improved significantly, there would be a corresponding (i.e. significant) impact to his calculations.

In thisregard, Dr. Hershfield testified that the body often finds a way to work around impairments such as those suffered by the plaintiff, thatthe plaintiff himself acknowledged his ability to adapt, and that, over time, there was a considerable improvement in his marks. [59] In my view, Smith’s report and his testimony are of limited value in assessing the plaintiff’s loss of earning capacity. At best, his evidence is “helpful . . . to identify, in general ways, the order of magnitude of loss based on certain key assumptions”(Schenker at para 84).

As noted previously, Smith agreed that, due to the assumptions required regarding the plaintiff’s career paths, thequantum of damages was not determinable by him with any significant or reasonable level of precision. It was for that reason that heprovided a range, as opposed to a specific amount, for damages based on differing assumptions. [60] Given the nature of the exercise, a range is a useful tool when assessing or estimating a plaintiff’s loss of earningcapacity.

See, for example, Knapp where Savage JA, speaking for the Court, said (at paras 18-19): It can be helpful under either approach for the judge to consider the quantum of the award in light of the range of possibilities indicatedby economic analysis. Mathematical aids and economic analysis facilitate a “bracketing” exercise that indicates the high and lowextremities of possible awards in a given case, as was recently considered by this Court in Grewal v. Naumann, 2017 BCCA 158 at paras.70-73 (majority per D. Smith J.A.) and paras. 56-58 (Goepel J.A., dissenting).

Courts, where they can, should endeavor to use factual and mathematical anchors as a foundation to quantify loss of future earningcapacity, including economist reports and a plaintiff’s pre-accident employment history, training, and capabilities: Jurczak v. Mauro atparas. 35-37; Lampkin v. Walls, 2016 BCSC 1003 at paras. 181-184, 192-210; Carey v. Richert at paras. 14-19; Summers v. Boneham(1994), 45 B.C.A.C. 306, . In addition, a plaintiff’s personality, work ethic, and attitude should all be consideredwhere possible; it may constitute an error to ignore such factors: Spencer v.

Rosati (1985), (ON CA), 50 O.R. (2d)661 at paras. 11-13, 1 C.P.C. (2d) 301 (C.A.). [61] By the time of trial (April 2016), the plaintiff had completed his social work degree, and when the trial judge issued herreasons, she noted that he was married with two children and was employed in a management capacity.

It is therefore no surprise thatthe trial judge concluded that the plaintiff would fall at the lower end of the range of damages, consistent with her findings that theplaintiff had made a remarkable recovery, had demonstrated grit and determination, and was now employed in a management capacity,albeit not at a senior level. [62] When one considers all of the circumstances, I agree that the plaintiff would fall at the lower end of the range.

Butwhat is the appropriate range, and what allowance must be made for specific and general contingencies? [63] Once the trial judge found that it was “most probable” that the plaintiff would have gone into the Faculty of Business topursue a career in accounting (at para 72) and “highly probable” that he would have become an accountant (at paras 83-84), the upperend of the range based on Smith’s evidence became $1,600,000. [64] While there is a statistical basis for Smith’s calculation of the upper end of the range, the lower end is considerablymore speculative.

When asked in cross-examination where the $1,000,000 came from, Smith testified:

A It’s the range. I’m rounding the millions because we have no way of being that precise. Q So you’re, you’re, you’re so uncertain of the conclusions that you’re rounding in the millions?

A I wouldn’t phrase it that way but that’s not inaccurate. [emphasis added] [65] In addition to the highly speculative nature of Smith’s estimate of the low end of the range, it is clear that the trial judgeshould have made an appropriate adjustment for the following specific contingencies: 1. the possibility that the plaintiff would not become an accountant; 2. the possibility that the plaintiff would not remain in social work; 3. the possibility that the plaintiff would not earn the average income of a chartered accountant; and 4. perhaps most importantly, the possibility that the plaintiff would attain a low to mid-level management position. [66] First, while I accept that it is highly probable that the plaintiff would have become an accountant, there remains thedistinct and very real possibility that he would not have done so.

The plaintiff said that social work was on “his radar” when he wasconsidering future careers in high school, and Smith said that in his experience even when a person enters an accounting program, “youcan’t guarantee that they will, in fact, stay in it.” According to Smith, the plaintiff “could have taken on any number of things.” In myview, there is a real possibility that the plaintiff might have done something other than accounting, and a modest adjustment for thatcontingency must be made. [67] Second, the calculation made by Smith was based upon the plaintiff remaining in social work.

While the trial judge feltthat this was a reasonable assumption, the plaintiff himself testified that this was unlikely. It is, of course, impossible to predict whatoccupation the plaintiff might undertake. However, his mother testified that money was important to him, and I believe that it isreasonable to assume that, whatever the occupation, the plaintiff would earn a greater income. [68] Third, there is also a real possibility that the plaintiff would not earn the average income of a chartered accountant. InReilly, a young lawyer who had recently been called to the bar was struck by the defendant’s vehicle.

The trial judge found that Mr.Reilly had suffered a permanent brain injury. The Court of Appeal concluded (at paras 116-18): [The award for damages] must be adjusted to reflect the degree of likelihood that these events would come to pass. When he wasinjured, the respondent had not yet commenced the practice of law and it could not be said with certainty where that career would takehim.

Although in a case of this nature one cannot put into percentage terms the likelihood or possibility that a plaintiff will achieve a certainlevel of earnings, in the absence of a proven earnings history, no level of earnings can be treated as a certainty: see West v. Cotton(1995), (BC CA), 10 B.C.L.R. (3d) 73 (C.A.) and Nelson v. Nelson (1994), (BC CA), 98 B.C.L.R.(2d) 182 (C.A.). . . .

On the basis of the findings of the trial judge, it is our view that there was a relatively high likelihood that, but for his injuries, therespondent would have practiced law in B.C. and earned at least the average income of male B.C. lawyers. Taking everything intoaccount, we would put the degree of likelihood at 85%. With this adjustment, the $2,000,000 figure becomes $1,700,000. [emphasis added] [69] Fourth, there would appear to be the very real possibility that during his career the plaintiff will achieve a managementposition.

While the trial judge found that the plaintiff would not rise to a senior management level in social work or in any other field—afinding which I am prepared to accept—she also found that he had accepted a position “in a management capacity” (at para 38) less than

18 months following his graduation from the social work program. [ 70 ] In his report, Smith said that his alternatives assumed that the plaintiff “will be unable to reach a management level in any field chosen”, and in cross-examination, he confirmed that he assumed that the plaintiff’s income would be $40,000 to $50,000 per annum, and not $80,000 per annum, on the assumption that the plaintiff would never get a management position in social work.

This assumption is no longer valid as the plaintiff obtained a management position at CFS in 2014. [ 71 ] Smith made a standalone calculation of the plaintiff’s loss ($465,146) on the basis that “[i]t is reasonable to assume that regardless of [the plaintiff]’s ultimate career path, his impairments would reduce his ability to reach senior management positions.” In making that calculation, Smith assumed that the plaintiff’s earnings between the ages of 33 and 65 would remain at $26.03 per hour versus $41.93 per hour. [ 72 ] In these circumstances and, in particular, given the plaintiff’s current circumstances, it is reasonable to assume that the plaintiff will ultimately have (at minimum) a low to mid-level management position and that his earnings will exceed $26 per hour.

I would therefore reduce the range for this uncertainty alone by 50 per cent of $465,146, rounded to $230,000. [ 73 ] Having considered the specific contingencies applicable to the plaintiff, it is my view that the low end and the top end of Smith’s range of $1,000,000 to $1,600,000 should be reduced by 35 per cent, rounded to $650,000 to $1,040,000. [ 74 ] Smith was clear that he had made no allowance for general contingencies: Our calculations do not contain any contingency factor and/or discount to reflect the possibility of accidents, illness, early death, extended life or impact of other lifestyle choices. [ 75 ] A further adjustment is therefore required for the general contingencies referred to in para 43, point 6 of these reasons, as well as those identified by Smith, including retirement prior to age 65.

In my view, on the basis of the authorities referred to in this decision and the available evidence, the low end and the top end of the range should be further reduced by 20 per cent, resulting in an approximate range of $520,000 to $830,000. [ 76 ] Both the trial judge and Smith correctly observed that one cannot determine the plaintiff’s damages with any level of precision. At the end of the analysis, it is necessary to consider whether the award is fair and reasonable in light of all the evidence.

As noted in Parypa (at para 70 ): Ultimately, the court must base its decision on what is reasonable in all of the circumstances.

Projections, calculations and formulas are only useful to the extent that they help determine what is fair and reasonable. [ 77 ] In Simpson , O’Sullivan JA expressed a similar view (at para 24): I recognize the value of actuarial calculations and economic evidence within the limits of their usefulness but still, at the end of the day, a judge must ask whether the end result is reasonable. [ 78 ] Given all of the evidence and applying my judgment as best I can to the plaintiff’s present circumstances ( Reilly at para 128), I believe that $525,000 is an informed assessment of the plaintiff’s anticipated loss of earning capacity and is fair and reasonable compensation for that loss. [ 79 ] Having carefully considered counsel’s submissions and the awards made in other cases, I am not persuaded that the trial judge erred in her award of $175,000 for non-pecuniary damages. [ 80 ] The plaintiff will therefore receive $525,000 for lost earning capacity, non-pecuniary damages of $175,000 and the amounts awarded by the trial judge for the Manitoba Health Services Commission account, special damages and interest. [ 81 ] The defendant shall have its costs in this Court.

JA I agree: JA

I agree: JA