Chiu v. Chiu (2002), 174 B.C.A.C. 267 (CA);
286 W.A.C. 267
MLB headnote and full text
Temp. Cite: [2003] B.C.A.C. TBEd. JA.017
Jason Shih-Lan Chiu (respondent/plaintiff) v. James Yen-Lan Chiu (appellant/defendant)
(CA026405; CA026826; 2002 BCCA 618)
Indexed As: Chiu v. Chiu
British Columbia Court of Appeal
Hall, Low and Smith, JJ.A.
November 12, 2002.
Summary:
The plaintiff sued for damages resulting from an accident while he was a passenger in a car owned and driven by his brother.
The British Columbia Supreme Court, in a decision reported in 21 B.C.T.C. 170, found the defendant solely responsible for the accident, and assessed damages accordingly. The court reduced the total award, except for special damages, by 10 percent because the plaintiff failed to engage in the counselling treatment recommended in the early stages, which might have caused some delay in his recovery. The plaintiff sought a tax gross-up on the cost of future care award, management fees and increased costs at 50 percent of special costs to be assessed.
The British Columbia Supreme Court, in a decision reported at [2000] B.C.T.C. 20, awarded $100,000 for the income tax gross-up on the cost of future care award; ordered management fees to be calculated on the total award for the cost of future care, loss of future earning capacity and income tax gross-up less net legal costs, using the Law Reform Commission tables’ percentage calculation and dividing the results in half, and awarded the plaintiff increased costs at a rate of 50 percent of special costs to be assessed by the Registrar. The defendant appealed the damages assessed. The plaintiff cross-appealed the awards for nonpecuniary damages and loss of earning capacity and the issue of mitigation.
The British Columbia Court of Appeal dismissed the appeal. The court allowed the cross-appeal in part, on the mitigation issue.
Damage Awards – Topic 102
Injury and death – Head injuries – Brain damage – A 16 year old male student suffered, inter alia, a mild traumatic brain injury – He was left with permanent ongoing cognitive difficulties: poor memory and concentration, depression, lowered frustration tolerance, sleep dysfunction, loss of social intercourse, changes in learning behaviour and personality, and problems with following directions, processing information and performing multiple tasks simultaneously – The British Columbia Court of Appeal affirmed an award of $100,000 general damages for nonpecuniary loss – See paragraphs 7 to 25, 50 to 52.
Damage Awards – Topic 489
Injury and death – General damage awards – Cost of future care and treatment – [See
Damages – Topic 1567
].
Damage Awards – Topic 492
Injury and death – General damage awards – Loss of earning capacity – [See
Damages – Topic 1549
].
Damages – Topic 1011
Mitigation – In tort – Personal injuries – Treatment for – A 16 year old male student suffered, inter alia, a mild traumatic brain injury – He was left with permanent ongoing cognitive difficulties, including poor memory and concentration – He completed grade 10 on schedule with great assistance from tutors – His efforts to complete grade 11 over three years were unsuccessful – He failed an adult education grade 12 English course – English, not his first language, was difficult – The trial judge reduced damages by 10 percent for the student’s failure to take counselling – The British Columbia Court of Appeal held that the defendant failed to present evidence to raise a failure to mitigate – The court noted that the young student lacked a good grasp of what was wrong and why he needed medical attention – See paragraphs 53 to 66.
Damages – Topic 1548
General damages – For personal injury – Management of fund fee (investment counselling) – A 16 year old male student suffered, inter alia, a mild traumatic brain injury – He was left with permanent ongoing cognitive difficulties, including poor memory and concentration – The British Columbia Court of Appeal affirmed that the student was entitled to level 4 investment assistance – The amount of the fund was clearly beyond his mental capacity to administer himself at any level – See paragraphs 45 to 49.
Damages – Topic 1549
General damages – For personal injury – Impairment of earning capacity – A 16 year old male student suffered, inter alia, a mild traumatic brain injury – He was left with permanent ongoing cognitive difficulties, including poor memory and concentration – No earnings history at the time of trial, had not yet begun to fulfil his post-accident earnings potential – Although English was not his first language, he would have become sufficiently adept in time – His pre-accident academic performance was satisfactory – The British Columbia Court of Appeal affirmed that the student was entitled to damages for loss of earning capacity, and affirmed the amount of $560,000 awarded – The trial judge correctly assessed, rather than calculated, the loss – See paragraphs 26 to 35.
Damages – Topic 1567
General damages – For personal injury – Future care and treatment – A 16 year old male student suffered, inter alia, a mild traumatic brain injury – He was left with permanent ongoing cognitive difficulties, including poor memory and concentration -He had trouble with personal cleanliness, cooking and cleaning up, banking and handling money – He lost and forgot things, including track of time – His cognitive problems affected his ability to be independent – The British Columbia Court of Appeal affirmed that the student was entitled to damages for the costs of future care, and affirmed the amount of $325,000 awarded – See paragraphs 36 to 41.
Cases Noticed:
Hay v. Hofmann et al. (1999), 118 B.C.A.C. 1; 192 W.A.C. 1; 61 B.C.L.R.(3d) 275 (C.A.), refd to. [para. 33].
Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 38].
Milina v. Bartsch (1985), 49 B.C.L.R.(2d) 33 (S.C.), refd to. [para. 38].
Sangha v. Dhaliwal, [1998] B.C.T.C. Uned. 160 (S.C.), dist. [para. 50].
Mann v. MacCaig-Ross, [1998] B.C.T.C. Uned. 307 (S.C.), dist. [para. 50].
Friesen v. Pretorius Estate et al. (1997), 92 B.C.A.C. 232; 150 W.A.C. 232; 37 B.C.L.R.(3d) 255 (C.A.), refd to. [para. 52].
Jones v. Forsyth, [1996] B.C.J. No. 1420 (S.C.), refd to. [para. 52].
Mosher v. Sedens Estate et al., [1998] B.C.T.C. Uned. C39 (S.C.), refd to. [para. 52].
Janiak v. Ippolito, [1985] 1 S.C.R. 146; 57 N.R. 241; 9 O.A.C. 1, refd to. [para. 57].
Counsel:
S.B. Stewart and L. Bell, for the appellant;
L. Stevens, for the respondent.
This appeal and cross-appeal were heard on May 22, 2002, at Vancouver, British Columbia, before Hall, Low and Smith, JJ.A., of the British Columbia Court of Appeal. Low, J.A., delivered the following judgment for the Court of Appeal on November 12, 2002.
