Parypa v. Wickware (1999), 119 B.C.A.C. 32 (CA);
194 W.A.C. 32
MLB headnote and full text
Temp. Cite: [1999] B.C.A.C. TBEd. MR.024
Margaret Rose Parypa and Leslie A. Parypa (plaintiffs/appellants) v. Michael Wickware and Steven Wickware (defendants/respondents)
(VI02723; 1999 BCCA 0088)
Indexed As: Parypa et al. v. Wickware et al.
British Columbia Court of Appeal
Cumming, Rowles and Proudfoot, JJ.A.
February 11, 1999.
Summary:
The female plaintiff, an American on holiday in Canada, was injured in a motor vehicle accident. She and her husband sued the defendants for damages for her injuries. The trial judge allowed the action and assessed damages. The plaintiffs appealed the damages for loss of income earning capacity and certain future care costs.
The British Columbia Court of Appeal, Rowles, J.A., dissenting in part, dismissed the appeal.
Damages – Topic 1549
General damages – For personal injury – Impairment of earning capacity – The British Columbia Court of Appeal stated that determining the quantum of damages for future loss of earning capacity was not a precise or mathematical exercise – It was not the lost earnings themselves that must be compensated but loss of earning capacity as a capital asset – The court discussed the factors to be considered – The plaintiff was not entitled to compensation based solely on the type of work she was performing at the time of the accident – The plaintiff had a duty to mitigate her damages – It was an error to calculate a loss of future earning capacity based solely on a mathematical calculation – Ultimately, the court must base its decision on what was reasonable in all the circumstances – See paragraphs 62 to 70.
Damages – Topic 1549
General damages – For personal injury – Impairment of earning capacity – An American licensed practical nurse, age 40, was working towards becoming a registered nurse – She suffered a closed head injury with cognitive deficits, fractures, facial and dental injuries, post traumatic stress disorder and depression – She was unable to pursue her career, incapable of professional employment and unlikely to do other than mundane future work – The British Columbia Court of Appeal affirmed the method used in awarding $245,000 for loss of future earning capacity – The trial judge concluded she would have earned $30,000/year, approximately half that earned by a full time registered nurse in the U.S. – He deducted the present value of $12,000/year as an amount she was capable of earning with her disablements and a 10 percent contingency – See paragraphs 71 to 82.
Cases Noticed:
Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452; [1978] 1 W.W.R. 577; 3 C.C.L.T. 225, refd to. [paras. 30, 62].
Kwei v. Boisclair (1991), 6 B.C.A.C. 314; 13 W.A.C. 314; 60 B.C.L.R.(2d) 393 (C.A.), refd to. [paras. 31, 62].
Palmer v. Goodall (1991), 53 B.C.L.R.(2d) 44 (C.A.), leave to appeal dismissed [1991] 1 S.C.R. xii; 135 N.R. 160, refd to. [paras. 31, 63].
Morris v. Rose Estate (1996), 75 B.C.A.C. 263; 123 W.A.C. 263; 23 B.C.L.R.(3d) 256 (C.A.), refd to. [para. 31].
Brown v. Golaiy (1985), 26 B.C.L.R.(3d) 353 (C.A.), refd to. [para. 31].
Milina v. Bartsch (1985), 49 B.C.L.R.(2d) 33 (S.C.), appeal dismissed (1987), 49 B.C.L.R.(2d) 99 (C.A.), refd to. [para. 32].
Ryder v. Paquette, [1995] B.C.J. No. 644 (C.A.), refd to. [paras. 32, 79].
Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [paras. 34, 66].
Steenblok v. Funk (1990), 46 B.C.L.R.(2d) 133 (C.A.), consd. [paras. 35, 65].
Mulholland et al. v. Riley Estate et al. (1995), 63 B.C.A.C. 145; 104 W.A.C. 145; 12 B.C.L.R.(3d) 248 (C.A.), refd to. [paras. 36, 69].
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. [paras. 36, 70].
Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620; [1981] 1 W.W.R. 289; 14 C.C.L.T. 181; 114 D.L.R.(3d) 385, refd to. [para. 60].
Earnshaw v. Despins (1990), 45 B.C.L.R.(2d) 380 (C.A.), refd to. [para. 63].
Duhra v. Basram (1991), 4 B.C.A.C. 276; 9 W.A.C. 276; 60 B.C.L.R.(2d) 78 (C.A.), refd to. [para. 68].
Lawin v. Jones (1994), 49 B.C.A.C. 249; 80 W.A.C. 249; 98 B.C.L.R.(2d) 126 (C.A.), refd to. [para. 81].
Authors and Works Noticed:
Cooper-Stephenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), p. 220 [para. 33].
Counsel:
Patrick M. Sweeney, for the appellants;
Donald D. McKnight, for the respondents.
This appeal was heard in Vancouver, British Columbia, on June 10, 1998, before Cumming, Rowles and Proudfoot, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on February 11, 1999, and the following opinions were filed:
Rowles, J.A., dissenting in part – see paragraphs 1 to 57;
Cumming, J.A. (Proudfoot, J.A., concurring) – see paragraphs 58 to 83.
