Perren v. Lalari,


2008 BCSC 1117

Date: 20080819
Docket: 06 4420
Registry: Victoria


Michelle Lee Perren



Kasmir Singh Lalari


Before: The Honourable Mr. Justice Macaulay

Reasons for Judgment

Counsel for Plaintiff

B. J. Kitzke

Counsel for Defendant

C. L. Pagé

Date and Place of Trial:



Victoria, B.C.

[1]                Subject to an issue about the law applicable to the determination of any award for impairment of future earning capacity, this is a straightforward assessment of damages arising out of a car accident that occurred 44 months ago on November 18, 2004.  At the time, the plaintiff, Michelle Perren, was driving her infant daughter to day care, when she was rear-ended by the defendant.  The Perren vehicle was written off due to the extensive damage caused to it.

[2]                Ms. Perren is now age 34.  At the time of the accident, she and her husband were planning to have a second child.  In late January 2005, she became pregnant and delivered her second child the following September.  The defendant contends that some of the neck and back pain that Ms. Perren suffered is attributable to the pregnancy rather than the car accident.

[3]                The impact of the accident was sudden and relatively severe.  Although Ms. Perren did not go to hospital, she went to her family doctor, Dr. Leslie, the same day.  She complained of pain over the back of the head and increasing neck and interscapular pain.  She also reported discomfort in the left shoulder and some decrease in range of motion.  The doctor initially diagnosed a moderate strain of the cervical spine, without neurological symptoms, and a lower back sprain.  By the time of the plaintiff’s next visit on November 23, she was much stiffer and she had pain radiating into the left arm.  Initially, the doctor anticipated a full recovery within a few months.  That proved to be unduly optimistic.

[4]                At the time of the accident, Ms. Perren was working for the provincial government in a management position.  She returned to work briefly in mid-December 2004, and then started a graduated return to work in January 2005.  By February, she was working full-time again but still modified some of her approaches at work to avoid aggravating her soft tissue injuries.  Modifications included avoiding long times in a seated position, periodic stretching and using ergonomic aids like a document tray and a headset for telephone conversations.

[5]                After Ms. Perren became pregnant, an obstetrician took over most of her care until the birth of the second child.  Dr. Leslie saw her infrequently, mainly to monitor her progress so that he could provide periodic legal medical reports.  In late January 2006, Ms. Perren complained of lower thoracic back pain.  The doctor referred her to a chiropractor and, since then, she has attended for chiropractic treatments on a regular basis, sometimes even weekly.  In a report dated January 23, 2007, Dr. Leslie recommended continuing chiropractic treatments on a bi-weekly basis to maintain mobility and decrease ongoing pain.

[6]                By that point, Ms. Perren had also undergone massage therapy treatments.  These started in April 2005 and continued through to the spring of this year.  In his most recent report, Dr. Leslie recommended that the plaintiff continue to receive chiropractic and massage treatments approximately once or twice per month.  In cross-examination, Dr. Leslie made it clear that the current purpose of this ongoing treatment, along with daily exercises, is to assist the plaintiff in dealing with pain that has now become chronic.

[7]                Ms. Perren acknowledged that some of her aches and pains in the low back may have resulted from her pregnancy.  She described the intensity as significantly more than was the case in her first pregnancy.  The pain has also endured long after the birth of her second child.  I accept that evidence.

[8]                Dr. Warren, an orthopaedic specialist, saw Ms. Perren once in October 2007, at the request of the defendant.  On examination, Dr. Warren did not observe any significant abnormality in the plaintiff’s cervical, dorsal or lumbar spine apart from “mildly impaired neck flexion”.  He opined that there was no continuing need for treatments apart from self-directed exercises.  I agree with Dr. Warren that further treatments are not necessary to increase functionality, but that is not the reason that her family doctor recommends continuing treatment.

[9]                Ms. Perren had close to full range of motion at the time of Dr. Warren’s examination.  I accept that she had functionally plateaued before that time.

[10]            Ms. Perren also reported to Dr. Warren that she had continuing pain and discomfort in the same patterns as those that immediately followed the accident.  That discomfort has continued since.  I find that the plaintiff is likely to continue suffering such pain into the indefinite future and that it is not entirely controlled by exercise.  I prefer and accept Dr. Leslie’s opinion that the massage and chiropractic treatments are a helpful and necessary ongoing means of pain management.

[11]            I further accept Dr. Leslie’s opinion that Ms. Perren is at risk of premature arthritis in her cervical spine and left shoulder.  I note that the plaintiff’s chiropractor expressed a similar opinion although I place less weight on his view than I do on that of the family doctor.

[12]            There is also evidence that Ms. Perren suffers from anxiety associated with the accident and, particularly, her fear immediately post-impact that her child was injured or traumatized.  Fortunately, the child was not physically injured but the plaintiff has since had to deal with unbidden mental images of the child being impaled.  Her anxiety has also adversely affected her comfort level when in a car.  I expect that these difficulties are amenable to psychological counselling if they continue after this case resolves.

[13]            I am satisfied that the plaintiff now has chronic pain associated with her soft tissue injuries and that pain and discomfort, in varying levels depending on activity level, will continue indefinitely.  Ms. Perren sensibly prefers to minimize the use of pain medications.  Beyond the pain management treatment modalities discussed above, Ms. Perren has no other means of minimizing the discomfort.

[14]            The injuries have affected the plaintiff’s family relationships.  She is not able to participate in normal physical family and recreational activities to the same extent as before the accident.  She cannot perform housework or garden to the same extent.  She presents as a perfectionist and is clearly bothered by these restrictions on activities that she enjoys and takes pride in.

[15]            Ms. Perren is also anxious and, perhaps, somewhat depressed; her relationship with her husband has been adversely affected, and she is naturally concerned and upset that her children now turn more naturally to their father for physical support and comfort.  In addition to the ongoing pain and discomfort that restricts general activities, these factors also affect enjoyment of life.  I take them into account in determining a fit award for non-pecuniary loss.

[16]            Counsel for the defendant contends that the award for non-pecuniary damages is in the range of $30,000 to $35,000.  She relies, for the most part, on cases involving moderate soft tissue injury from which full recovery can be expected.  I have read them but, with one exception immediately below, need not refer to them specifically as Ms. Perren’s injury pattern is significantly more serious and not amenable to full recovery.

[17]            In Krogh v. Swann, 2005 BCSC 761, the plaintiff suffered from chronic pain associated with a soft tissue neck injury.  The court found the extent of the pain and the interference with his life “difficult to measure” (para. 36), in part because the plaintiff was able to participate in physically strenuous activities and the medical evidence did not confirm that his condition was permanent (also at para. 36).  The award was $30,000.  I consider that case significantly less serious than the present.

[18]            Counsel for the plaintiff contends that the award for non-pecuniary damages should be in the range of $45,000 to $60,000.  I need only refer to three of the cases that he relies on:  Robbie v. King, 2003 BCSC 1553; Hamilton v. Vance, 2007 BCSC 1001; and Saucedo v. Huang, 2007 BCSC 1704, as they most closely parallel the injury pattern in the present case.  Of course, no two cases are ever identical and accordingly, I rely on the awards in these cases to identify the broad range of award for non-pecuniary losses.

[19]            Robbie involved a less serious injury pattern without any significant emotional component.  The plaintiff was left with mild residual soft tissue pain in the neck and upper back without risk of future arthritis.  The award, before reduction for failure to mitigate, was $40,000.

[20]            In Hamilton, the plaintiff suffered soft tissue injuries to the neck, upper left shoulder and lower back that resulted in pain and numbness in the left buttock, leg and toes.  She also suffered from repeated and prolonged headaches.  Most of the injuries, except to the neck and in the area of the left hip, buttock and leg, resolved within two years.  At trial, three years post-accident, the court concluded that the plaintiff’s left side injuries remained amenable to treatment to reduce the discomfort but that the plaintiff suffered a minimal permanent partial disability arising from the neck injury that was likely to cause continuing intermittent pain and discomfort.  See para. 52.  The award for non-pecuniary loss was $38,000.  Ms. Perren’s injury pattern is also more serious than this.

[21]            Saucedo is closer to the present case but also has some differences.  The plaintiff there suffered from a Grade II whiplash with muscle-tension type headaches; diffuse neck and upper back pain suggestive of a myofascial pain syndrome; non-specific low back pain radiating down the outside of the right leg and into the foot; as well as symptoms of depression.  The court fixed non-pecuniary damages, including loss of general homemaking capacity, at $60,000.

[22]            In my view, a fit award for non-pecuniary loss, including loss of general homemaking capacity, is $50,000.

[23]            The plaintiff claims past special damages for treatment related expenses, as follows:



1.  Physiotherapy

$  990

2.  Chiropractic


3.  Massage


4.  Mileage




[24]            The defendant’s opposition to the special damages claim stems from Dr. Warren’s opinion that, by the date of his examination in October 2007, the plaintiff did not need any continuing therapy.  I rejected that view in favour of Dr. Leslie’s opinion that the plaintiff has needed, and will continue to need, therapeutic interventions to control pain.

[25]            I find the plaintiff’s claim for past special damages totalling $6,911 to be reasonable and I award that amount.  As to the future, her counsel suggests that a reasonable allowance is for single monthly chiropractic and massage treatments at a combined cost of just over $1,000 per year.  Taking into account Ms. Perren’s present age and the discounted present value of any future award, I award $15,000 for future care costs.  This award includes the cost of psychological counselling, if required.

[26]            The parties agree that Ms. Perren’s past wage loss, subject to her employer’s subrogated interest, is $7,809.75.  I award that amount.

[27]            This leaves two disputed claims:  first, Ms. Perren’s claim for past loss of opportunity; and second, her claim for impairment of future earning capacity.  I will address them in that order.

[28]            Before the accident, Ms. Perren worked in a variety of office work positions.  These began when she was still in high school.  In about 1995, she successfully completed an office assistant diploma program at Camosun College.  Her aptitude and interest have always been focused on office work.  Ms. Perren has never undertaken more physically demanding work nor expressed any interest in such work.

[29]            Instead, in 1997, Ms. Perren began working for the provincial government and continued thereafter for several years in various clerical positions.  Shortly before the accident, she received a promotion to a management position with the Public Service Agency (“PSA”) with responsibility for writing job descriptions for employees in various ministries.  That position was a temporary one and depended, in the long term, in part, on the ability of PSA to charge other ministries for the plaintiff’s writing services.

[30]            Following her graduated return to work, Ms. Perren continued in the same employment.  With some difficulties, as outlined earlier, she fulfilled her job responsibilities.  In September 2005, she went on maternity and parental leave.  That lasted until about October 9, 2006.  Around the time that Ms. Perren returned to work, her earlier position was posted as a permanent one.

[31]            Ms. Perren competed for the position but was unsuccessful.  In the result, she moved to another ministry where she has remained employed since, but she did not obtain a comparable management position until June 2007.  According to Ms. Perren, she earned less between October 2006 and June 2007 than would have been the case if she had succeeded in the PSA competition and remained in that original management position.  While I accept that, it does not follow that the plaintiff’s failure to win the competition had anything to do with the accident.

[32]            Ms. Perren believes that she did not succeed in the PSA competition because her supervisor was unhappy with her tardiness, frequent breaks and work-time missed for medical appointments during her return to work.  Her supervisor testified and denied that he had any significant concerns.  In any event, he was not involved in nor did he contribute information to the panel that approved another candidate over Ms. Perren.  I am not persuaded that the plaintiff’s injuries or problems during her initial recovery period contributed in any significant way to her lack of success in the competition.  I decline to make any award for past loss of opportunity.

[33]            I turn next to the question of impairment of future earning capacity.  I have no doubt that the plaintiff is not competitively employable in work that requires heavy or repetitious lifting.  Fortunately, her employment does not require her to do either.  Absent any real possibility that she would turn to such employment, is she entitled to an award?

[34]            Counsel for Ms. Perren relies on the law set out in Pallos v. Insurance Co. of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.).  In that case, the Court of Appeal reversed the trial judge who had rejected the plaintiff’s claim for loss of future income or loss of opportunity on the basis that the plaintiff failed to establish that his future loss was a real possibility and that there was a reasonable chance it might occur.  As in the present case, the plaintiff continued after the accident in the employment that he held before the accident but his injuries precluded some other types of employment.

[35]            The appellant submitted that the trial judge overlooked a more appropriate test for the claim.  The Court of Appeal agreed:

24        In addition to those cases cited by counsel, I would also refer to Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.).  There Mr. Justice Taggart quoted with approval from Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) as follows (at p. 399):

The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case.  Some of the considerations to take into account in making that assessment include whether:

1.         The plaintiff has been rendered less capable overall from earning income from all types of employment;

2.         The plaintiff is less marketable or attractive as an employee to potential employers;

3.         The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4.         The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

25        In Palmer v. Goodall [(1991), 53 B.C.L.R. (2d) 44 (C.A.)] Madam Justice Southin said at p. 59:

Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment.  He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning ability.

26        In Earnshaw v. Despins [(1990), 45 B.C.L.R. (2d) 380 (C.A.)] Madam Justice Southin said (at p. 399):

In my opinion, the true questions the jury must address in a claim such as this are:

1.         Has the plaintiff's earning capacity been impaired to any degree by his injuries?

2.         If so, what amount in the light of all the evidence should be awarded for that impairment?

As Dickson J., as he then was, said in Andrews v. Grand & Toy (Alta.) Ltd., [1978] 2 S.C.R. 229 at 251 ...

It is not loss of earnings but rather, loss of earning capacity for which compensation must be made ... A capital asset has been lost: what was its value?

In catastrophic injury cases, the whole of the capital asset is lost.  But there may be much less serious injuries which cause permanent impairment although the loss cannot be determined with any degree of exactitude.

The learned judge ought to have addressed the question as one of impairment and pointed out that there was evidence of a limitation on earning ability.  The jury might well have rejected the plaintiff's inordinate claim but appreciated that there are jobs now closed to the plaintiff which, as he grew older, he might have chosen and given him something more for that and future care than slightly under $12,000.

As I have said, this difficulty with the charge was not raised by counsel for the plaintiff with the learned trial judge.  Indeed, he did not raise it before us.

27        It does not appear that the trial judge had his attention drawn to any of these cases, or to the approach they suggest.  These cases all treat a person's capacity to earn income as a capital asset, whose value may be lost or impaired by injury.  It is a different approach from that taken in Steenblok v. Funk [(1990), 46 B.C.L.R. (2d) 133 (C.A.)], and similar cases, where the court is asked to determine the likelihood of some future event leading to loss of income.  Those cases say, if there is a "real possibility" or a "substantial possibility" of such a future event, an award for future loss of earning may be made.  There is nothing in the case law to suggest that the "capital asset" approach and the "real possibility" approach are in any way mutually exclusive.  They are simply different ways of attempting to assess the same head of damages, future loss of income.  It is to be regretted that plaintiff's counsel did not advance the case at trial using both approaches, in the alternative.

[36]            Under the capital asset approach in Pallos, Ms. Perren would be entitled to an award for impairment of future earning capacity.

[37]            Counsel for the defendant contends that the law has changed since Pallos.  She relies heavily on Steward v. Berezan, 2007 BCCA 150.  There, the Court of Appeal overturned an award for impairment of future earning capacity where the plaintiff’s claim was for diminished capacity as a realtor.  The plaintiff was a realtor before and after the accident continuing through to the time of trial.  His counsel had described the claim at trial as based on a reduced capacity to earn money as a realtor and not based on an inability to move to the field of carpentry in which he had worked many years earlier.  The court disapproved of the trial judge’s reference in her reasons to the Palmer extract, at p. 59, which, as I have already set out, were repeated in Pallos at para. 25, and stated:

But the language in question there was used in the context of appellate review and, with respect, it cannot be transposed to an original analysis at the trial level.  The claimant bears the onus to prove at trial a substantial possibility of a future event leading to an income loss, and the court must then award compensation on an estimation of the chance that the event will occur:  Parypa para. 65.

[38]            There is no reference in Steward to Pallos.  Steward, in my view, does not overrule Pallos.

[39]            Parypa v. Wickware, 1999 BCCA 88, referred to in the extract from Steward set out above, also affirmed Palmer in relation to the capital asset approach as opposed to the projected future earnings approach (at para. 63).  In Parypa, at para. 65, cited as authority in the Steward extract, the court also addressed how to determine the extent of any impairment to future earning capacity.  Paragraph 65 reads:

65        Then how shall we determine the extent of the damage?  What certainties, probabilities or possibilities must the plaintiff demonstrate in order for the court to conclude there has been damage to the plaintiff's earning capacity?  This issue was addressed in Steenblok v. Funk.  In Steenblok, the trial judge dismissed the plaintiff's claim for damages for loss of future earning capacity, finding that the plaintiff had failed to show on a balance of probabilities, that his chronic pain from a soft tissue injury to his neck and upper back was irreversible.  Hutcheon J.A. allowed the appeal, awarded $150,000 for loss of future earning capacity, and commented on the applicable burden of proof.  He said at 135:

I think that placed upon the plaintiff an unduly high burden in the proof of future loss of earning capacity.  I shall return to a discussion of the burden on a plaintiff in respect of future events.  It is sufficient at this point to state the proposition of law that in dealing with future loss substantial possibilities must be considered by estimating the chance of the event occurring and that the balance of probabilities is confined to determining what did in fact happen in the past.  That is the law, as I understand it, decided in Kovats v. Ogilvie, [1971] 1 W.W.R. 561, 17 D.L.R. (3d) 343 (B.C.C.A.); Schrump v. Koot (1977), 18 O.R. (2d) 337, 4 C.C.L.T. 74, 82 D.L.R. (3d) 553 (C.A.); and Janiak v. Ippolito, [1985] 1 S.C.R. 146, 31 C.C.L.T. 113, 16 D.L.R. (4th) 1, 9 O.A.C. 1, 57 N.R. 241.  The proposition is based on language taken from those three cases.

[40]            While that remains good law, in Pallos, the court expressly held that consideration of the issue of damages for lost future earning capacity should not have been limited to the test established in Steenblok.

[41]            On that point, the court, in Pallos, further stated, at para. 29:

In my respectful view, a consideration of this issue should not have been limited to the test established in [Steenblok].  The plaintiff’s claim in this case, properly considered, is that he has a permanent injury, and permanent pain, which limit him in his capacity to perform certain activities and which, therefore, impair his income earning capacity.  The loss of capacity has been suffered even though he is still employed by his pre-accident employer, and may continue to be so employed indefinitely.

[42]            Are the passages in Pallos and Steward reconcilable?

[43]            In Chang v. Feng, 2008 BCSC 49, Bauman J. (as he then was) reviewed the differing methodologies and, in reference to Steward, stated, at para. 76:

This appears to be an express direction to first enquire into whether there is a substantial possibility of future income loss before one is to embark on assessing the loss under either approach to this head of loss, in particular, under the capital asset approach as well.  (I note that Justice Russell arrived at a similar conclusion in Naidu v. Mann, 2007 BCSC 1313 and see also Bedwell v. McGill, 2008 BCCA 6, para. 53.)

[44]            With respect, it is not clear, as I understand Steward, how one gets to the capital asset approach without first proving a substantial possibility of future income loss in relation to the plaintiff’s position at the time of trial.  I cannot reconcile that approach with the factors first listed in Brown, later summarized in Palmer, and finally approved in Pallos in the passages set out earlier in my reasons.

[45]            It would be helpful if the Court of Appeal has an opportunity to address these issues fully.  I observe that the Court of Appeal since held in one decision that Steward turned on its facts and did not create any new principle of law.  The court also affirmed Parypa in the same decision.  See Djukic v. Hahn, 2007 BCCA 203, at paras. 14 and 15. 

[46]            In contrast, in Bedwell v. McGill, Tysoe  J.A., in partial dissent on other issues, held, based on Steward, that it was necessary to prove “… a substantial possibility of a future event leading to an income loss” (at para. 53).

[47]            For my part, I reconcile Pallos and Steward by limiting the admonition in Steward to the narrow factual circumstances that were before the court.  I also observe that the plaintiff in Steward presented his claim solely on the Steenblok approach.  In that sense, reliance on Palmer would be inappropriate as it relates to the alternative methodology approved in Pallos.  In the present case, the plaintiff presented her claim on the capital asset approach and I consider myself bound to apply the law set out in Pallos.

[48]            The loss of future earning capacity in the present case renders the plaintiff less marketable than she was before the accident but not in a way that demonstrates any substantial possibility that she will suffer an associated loss.  Her talent and inclination are in the fields of office work and management.  Ms. Perren would not give up her current employment voluntarily except, perhaps, to move into a related position.  She can likely earn more as a manager than she could in a more physical position.

[49]            The impairment of the plaintiff’s future earning capacity will have slight, if any, actual impact on her future earnings.  Nonetheless, she has suffered some impairment under the Pallos test.  I consider $10,000 to be an appropriately modest award in the circumstances.

[50]            For convenience, the awards in favour of Ms. Perren are:



1.  Non-pecuniary damages


2.  Past special damages


3.  Future special damages


4.  Past wage loss


5.  Impairment of future earning capacity




[51]            In addition, the plaintiff is entitled to court order interest at the registrar’s rates on the awards for past special damages and past wage loss.

[52]            Subject to any Offers to Settle, Ms. Perren is entitled to costs on Scale B.  Counsel may provide written submissions respecting the effect of an Offer to Settle unless they agree on the outcome.

                 "M.D. Macaulay, J."              

The Honourable Mr. Justice Macaulay