J. THE COURT OF APPEAL FOR SASKATCHEWAN RUTH JOAN GRAFF APPELLANT BY CROSS-APPEAL (RESPONDENT) (PLAINTIFF) and MARGARET MADONNA BENNETT, ANTHONY SCOTT THOMPSON, AND BERNICE THOMPSON RESPONDENT BY CROSS-APPEAL (APPELLANT) (DEFENDANT) (RESPONDENT/PLAINTIFF) CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Tallis The Honourable Madam Justice Jackson COUNSEL: Ms. K. Prisciak for the appellant, Mr. S.E. Halyk Q.C., and Mr. James A. Morrison for the respondent, Bennett. DISPOSITION: Appeal Heard: May 18, 1995 Appeal Decided: August 25, 1995 On Appeal From: Q.B. 958 1992 J.C. Saskatoon Appeal File: 1890 Reasons by: The Honourable Mr. Justice Tallis In concurrence: The Honourable Chief Justice Bayda and The Honourable Madam Justice Jackson Tallis J.A. The defendant Margaret Bennett appeals from a judgment for damages pronounced in Queen\'s Bench. Following a jury trial of this action for damages for personal injuries and loss sustained in an automobile collision, judgment was pronounced on 13 May 1994 awarding damages of $409,251.18 to the respondent plaintiff. Since liability was admitted by the defendant (appellant) the trial was limited to assessment of damages by the jury. As starting point we recite the verdict form and the jury's answers to the questions submitted to them:[1] A. NON-PECUNIARY DAMAGES: 1. At what amount do you assess the non-pecuniary loss of the Plaintiff, for pain and suffering and loss of enjoyment of life? 60,000.00 2. At what amount, if any, do you assess the Plaintiff's past loss of homemaking 0.00 B. PECUNIARY DAMAGES: 1. At what amount, if any, do you assess the Plaintiff's past loss of earnings. 1,568.00 2. At what amount, if any, do you assess the Plaintiff's future loss of earnings. $337,130.00 3. At what amount, if any, do you assess the Plaintiff's future loss of homemaking 5,000.00 The parties agreed to special damages of $5,553.18. Accordingly, the learned trial judge directed that judgment be entered for $409,251.18 together with pre-judgment interest of $16,686.00 for total of $425,937.18. The appellant limits her challenge to the "future loss of earnings" component in the amount of $337,130.00. In her cross-appeal the respondent challenges the trial judge\'s instruction to deduct sick leave benefits which were used in consequence of her injuries from the past loss of earnings component. GROUNDS OF APPEAL Appellant's counsel advances the following grounds of appeal: 1. The Learned Trial Judge erred in law in admitting the evidence of Douglas Kalesnikoff as expert opinion evidence which resulted in substantial wrong or miscarriage of justice. 2. The Learned Trial Judge erred in law in failing to caution the Jury regarding the weight to be given evidence of Douglas Kalesnikoff. 3. The Jury's finding of the future loss of income capacity was so inordinately high that it is perverse, wholly out of all proportion, unsupported by the evidence and unreasonable. We note that in the absence of agreement between the parties this Court has no jurisdiction to assess the damages, should it be decided that the award cannot stand. Since there is no such agreement, we are limited to dismissing the appeal or ordering new trial if we find merit in the appeal: see Quintal v. Datta, 1988 CanLII 5084 (SK CA), [1988] W.W.R. 481 (Sask. C.A.) and Rieger v. Burgess, 1988 CanLII 209 (SK CA), [1988] W.W.R. 577 (Sask. C.A.). FACTUAL BACKGROUND Since the appellant's complaints must be passed upon in factual and procedural context, we find it convenient to first review the relevant factual background. On 20 August 1990 the respondent Ruth Graff was injured while riding as passenger in the appellant's vehicle. This vehicle was involved in collision with the "Thompson" vehicle at the intersection of 22nd Street and Diefenbaker Drive in Saskatoon. At the time of trial Ruth Graff was 45 years of age. Following graduation from high school in 1967, she attended the College of Education for one year. She then moved to Vancouver where she met and married Art Graff. She and her husband have raised two children. Before the collision the respondent enjoyed excellent health. She was an industrious person who worked outside the home after the children attained school age. When the family moved to Saskatoon, she obtained employment as resident attendant or nursing aide in nursing home. She later attended Kelsey Institute where she realized her ambition to qualify as registered nurse. While studying at Kelsey, she worked on weekends to supplement the family income. Following her graduation as registered nurse in 1983, she first worked in that capacity at St. Anne's nursing home. After few months, she obtained employment at the Royal University Hospital. In July 1985 she obtained nursing position on the neuro-surgery ward and was so employed at the time of the collision. As result of the collision, she sustained multiple injuries including concussion, whiplash, fractured ribs, contusions and abrasions. She was rendered unconscious and remained in state of post-traumatic amnesia for approximately four hours. The most serious consequence was "closed" head injury. Although we will refer in more detail to the medical evidence, we observe that the respondent and her medical advisors attributed significant cognitive, emotional, behavioural and physical deficits to this traumatic brain injury. Ruth Graff returned to work approximately four months after the collision. At time of trial, she was still working as nurse at the University Hospital but testimony from number of fellow employees and medical advisors cast serious doubt on her ability to continue in nursing as career. This aspect of the evidence will be canvassed in greater detail when we consider the grounds of appeal. We now turn to consideration of the grounds of appeal. Ground Admissibility of Expert Opinion Evidence. This complaint must be considered in factual and procedural context. In calculating damages, it is assumed, that if the injured person had not been disabled, she would have continued to work and to receive salary or wages at periodic intervals until retirement, lay-off, disability or death. An award for impaired earning capacity is intended to compensate the injured person for the diminution of that stream of income. In theory the award could take the form of periodic payments but in this province it has traditionally taken the form of lump sum, paid at the conclusion of litigation.[2] The appropriate lump sum cannot be calculated without first examining the stream of income it purports to replace. The lost stream's length cannot be known with certainty; contingencies such as illness, death, disability or unemployment could intervene. However, not all contingencies are negative. Each annual instalment in the lost stream of income comprises several elements. The most significant is, of course, the actual salary or wage. In addition the employee may have enjoyed certain fringe benefits such as shift differential, sick leave credits, uniforms and various other entitlements that are often specified in collective bargaining agreement or contract of employment. However, the estimate of loss from diminished earning capacity in the future need not be based solely on the salary which person was earning at the time of her injury. With the passage of time an individual often becomes more valuable to her employer. To reflect this heightened value, she will often receive "seniority" or "experience" raises or even promotions. Furthermore, the salary or wages of class of employees may increase over time even in theoretical inflation-free economy. Although the notion of damage award representing the present value of the lost stream of earnings engages some far-reaching economic considerations and contingencies, the two basic elements that determine its calculation can be stated. They are: (1) the amount that the person would have earned during each year she could have been expected to work after the injury; and (2) the appropriate discount rate, reflecting the essentially risk-free available investment. Even in an inflation-free economy the award for damages to replace the lost stream of income cannot be calculated simply by totalling the sum of periodic payments. When the lump sum award is notionally invested, it will earn additional money. Accordingly, where it is reasonable to suppose that interest may be earned on the award, if invested, the ascertained future benefits must be discounted in calculating the award. Speaking generally, the trier of fact will consider the various contingencies in estimating the amount that the person would have earned but for the injuries, and apply the controlling rate to each of the estimated instalments in the lost stream of income and then add up the discounted instalments to determine the total award. In this case, the plaintiff Ruth Graff was still working at the time of trial as registered nurse at the University Hospital. However, there was evidence before the jury that her nursing career was in serious jeopardy. This appeal was argued on the footing that loss of future earnings was the functional equivalent of loss of future earning capacity. The terms were used interchangeably at various times but, since no issue was raised, we simply refer to our discussion of this question in Seip v. South Saskatchewan Hospital Centre (1992), 1992 CanLII 8228 (SK CA), 97 Sask. R. 39 at 54 to 60. In the case now under consideration the question posed to the jury focused on the plaintiff's future loss of earnings, although the trial testimony was primarily directed to "loss of earning capacity". In Andrews et al v. Grand Toy Alberta et al, 1978 CanLII (SCC), [1978] S.C.R. 229 at 251 Dickson J. (as he then was) articulated loss of earning capacity in this way: We must now gaze more deeply into the crystal ball. What sort of 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, supra. capital asset has been lost: what was its value? This approach was applied in Earnshaw v. Despins (1990), 1990 CanLII 596 (BC CA), 45 B.C.L.R. (2d) 380 (C.A.) at 399 where Southin J.A. stated: In my opinion, the true questions the jury must address in 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? ... 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. In Pallos v. Insurance Corp. of British Columbia (1995), 1995 CanLII 2871 (BC CA), 100 B.C.L.R. (2d) 260 (C.A.) Finch J.A. writing for the majority expressed the test for loss of income earning capacity in this way at pages 269-271: ... The plaintiff's claim in this case, properly considered, is that he has 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. ... In sum, there is no clear medical evidence that the plaintiff has diminished ability to earn income in the future, or, if so, the extent to which that ability is diminished. On the other hand, there is uncontradicted medical evidence of partial permanent physical disability which could have an effect on his capacity to work, and on his employability. would conclude that his earning capacity had not been reduced, even though he presently earns more than he did before he was injured. Applying the test referred to in Kwei v. Boisclair (supra) to the uncontradicted medical evidence and the plaintiff's work history, think the only reasonable conclusion is that the plaintiff was rendered: less capable from earning income from all types of employment; less attractive as potential employee to new employers; unable to take advantage of all job opportunities previously open to him; and less valuable to himself, as person capable of earning income in competitive labour market. Given the appellant's position at trial and on appeal we assume that the trial proceeded on the footing that the final assessment of damages would be the same regardless of terminology or approach. However, in future cases of this nature consideration might well be given to jury question that focuses on "loss of earning capacity" rather than "future loss of earnings". In laying the foundation for the "loss of future earnings" component, learned counsel supplemented the plaintiff's oral testimony concerning her work record with relevant documentary evidence that included: 1. past payroll records from Royal University Hospital for the period from 19 August 1990 to 29 December 1990 with particulars of hours and sick leave benefits; 2. copies of collective bargaining agreements between Saskatchewan Union of Nurses and Health Care Association; 3. 1990 calendar documenting schedule shifts of the plaintiff; and 4. income tax returns of the plaintiff for years 1988 to 1993. Following this background testimony counsel for the respondent plaintiff called Mr. D. Kalesnikoff, chartered accountant (and forensic accountant), to calculate the future income stream based on present value earnings. Since the parties called no expert evidence concerning predicted future rates of inflation, the interest rate that could be appropriately used to discount future earnings to present value, or the possible connection between inflation rates and interest rates, Queen's Bench Rule 284B governs. It reads in pertinent part: 284B(1) Except where there is evidence to the contrary: (a) the life expectancy of an individual as set forth in the table in Form 23A is admissible in evidence; (b) three per cent per annum is admissible in evidence as the rate of interest to be used in determining the capitalized value of an award in respect of future pecuniary damages to the extent that it reflects the difference between estimated investment and price inflation rates; and (c) the value of one dollar per year as set forth by the respective periods shown in Form 23B, is admissible in evidence. (3) Notwithstanding Subrule (1), Form 23A is not conclusive as to life expectancy and the health and habits of the individual and any other relevant fact or circumstance may be considered by the court in determining life expectancy. This Rule was enacted to avoid the cost of calling actuarial evidence on such matters. It was clearly designed as cost saving measure in the litigation process in Queen's Bench and enables counsel to put forward calculations based on proffered factual underpinnings. We refer to the following passage in Seip, supra at p. 55 (paragraph 25) to illustrate its application: At trial plaintiff's counsel made the following written submission: "(ii) Future Loss of Income "Elaine is presently 35 years old. If we assume normal retirement age of 65 years, Elaine has working life expectancy of 28 years. If we utilize the approved discount of 3%, loss of future income is calculated as follows: Annual Income for Step Nurse $19.53 40 hours 52 weeks $40,622.40 19.02074 (present value of $1 using 3% discount rate over 28 years) $40,622.40 "We rely upon rule 284B of the Rules of Court for the approved discount rate and life expectancy. In the absence of evidence to the contrary, rule 284B provides that 3% is an approved discount rate, (real investment rate or the difference between historical investment rates and inflation rates). The Supreme Court of Canada approved this method of calculating future loss of income in Andrews, supra. We admit the Form 23A 23B tables into evidence as provided by rule 284B. "If we assume that Elaine can work three days per week, five hours per day, at salary of $700 per month (Weight Loss Centre income) her revised future loss of income is calculated as follows: Lost Annual Nursing Income $40,622.40 Weight Loss Centre Income 8,400.00 Balance: $32,222.40 x19.02074 Revised Future Income Loss: 612,893.89 "The assumption that Elaine can work three days per week, five hours per day, is highly optimistic, given her post injury work record and the opinion of Margaret Friesen that, in many ways, she is presently working beyond her physical capabilities. Also, her present job may not continue indefinitely." Before this Court, learned counsel advanced the same argument although he conceded that minor deduction in the neighbourhood of 10 to 15% for contingencies should be made when computing the final figure. In attacking the award of $75,000 learned counsel took the mathematical calculation of $612,893.89 as starting point and then contended that the trial judge had effectively made an 88% deduction for contingencies. In making his calculations Mr. Kalesnikoff utilized Queen's Bench Table 23A and 23B for life expectancy and discount rates. For convenience we reproduce the tabulation prepared by Mr. Kalesnikoff.[3] Ruth Graff Present Value of Future Earnings Capacity Adjusted for Mortality May 1, 1994 to December 31, 2013 Earnings assumed to occur at the midpoint of each period Earnings Discount Adjustment Discounted Age Annual Number of for the Factor for Earnings Cumulative Year Dec Earnings Months Year @3% Mortality Capacity Total 1994 46 43,500 29,000 .9901 .99790 28,653 28,653 1995 47 43,500 12 43,500 .9662 .99558 41,844 70,497 1996 48 43,500 12 43,500 .9381 .99303 40,522 111,019 1997 49 43,500 12 43,500 .9108 .99022 39,232 150,250 1998 50 43,500 12 43,500 .8843 .98713 37,971 188,221 1999 51 43,500 12 43,500 .8585 .98374 36,740 224,961 2000 52 43,500 12 43,500 .8336 .98004 35,536 260,497 2001 53 43,500 12 43,500 .8093 .97601 34,360 294,858 2002 54 43,500 12 43,500 .7858 .97165 33,211 328,069 2003 55 43,500 12 43,500 .7629 .96692 32,088 360,157 2004 56 43,500 12 43,500 .7407 .96179 30,989 391,146 2005 57 43,500 12 43,500 .7191 .95623 29,913 421,060 2006 58 43,500 12 43,500 .6982 .95018 28,859 449,919 2007 59 43,500 12 43,500 .6779 .94364 27,826 477,745 2008 60 43,500 12 43,500 .6582 .93655 26,814 504,559 2009 61 43,500 12 43,500 .6390 .92886 25,820 530,378 2010 62 43,500 12 43,500 .6204 .92051 24,843 555,221 2011 63 43,500 12 43,500 .6024 .91144 23,882 579,103 2012 64 43,500 12 43,500 .5848 .90164 22,938 602,041 2013 65 43,500 12 43,500 .5678 .89103 22,009 624,050 Total 624,050 Although learned counsel for the appellant objected to the admissibility of this tabulation, the learned trial judge admitted it into evidence before the jury. Learned counsel challenges the admissibility of this tabulation and Mr. Kalesnikoff's analysis of it on the ground that it was admitted into evidence with the label of expert opinion attached to it. She contends that Mr. Kalesnikoff was permitted to present under the "guise" of expert opinion evidence what was essentially mathematical calculation matter that does not require the services of an expert forensic accountant. In the circumstances of this case, she contends that he was not bringing any expert opinion evidence to assist the jury in making factual determinations and accordingly should have not affixed his imprimatur as an expert to P16. Learned counsel for the appellant accepts that expert witnesses may be able to assist the jury in certain cases where the assessment of the loss is complicated: see Engel v. Salyn, 1993 CanLII 152 (SCC), [1993] S.C.R. 306 at 313. However, in this case she stresses the relative ease with which the calculation can be made and submitted that the plaintiff's argument on future loss of income should not have been put to the jury in the guise of expert testimony. When dealing with the admissibility issue the learned trial judge recognized the need to control the scope of Mr. Kalesnikoff's testimony. During his introductory testimony Mr. Kalisnikoff testified as to his expertise in calculating economic loss. But he was not permitted to range into fields that were essentially for the jury. Although the trial judge permitted the witness to testify as to certain mathematical calculations and place them before the jury (Exhibit P-16), the judge restricted this testimony. This is made clear in the text of his ruling.[4] Yes, considered the briefs, and as the determination of percentage of disability is technical and medical matter, and as no such evidence has been brought before the Court, it would be inappropriate for Mr. Kalesnikoff to provide calculations provide calculating assistance, which he's clearly capable of providing, as it might tend to confuse the jury as to the state of the evidence. don't think he should be suggesting level of disability in respect of which there has been no testimony. Also, there has been no evidence of future incapacity to earn income of specific nature. The plaintiff has worked, apparently to the satisfaction of her employers, for three and half years, and I've heard no evidence that she could not continue, although she has testified as to her discomfort. As well, if ever she left the present employment there is every possibility that this competent woman would be able to continue to provide useful service as nurse of another type. She is on the evidence far from being totally disabled. Accordingly, would consider testimony on the assumption that she is totally disabled to be inadmissible, as the need of the jury for assistance in that area has not been demonstrated. The housekeeping capacity is in about the same situation. We have no testimony as to what these duties amount to, how long they would take, et cetera. How then can Mr. Kalesnikoff testify without suggesting scenario, scenario which is not, until now at least, supported by any evidence other than that of the plaintiff's discomfort? Accordingly, would place severe restrictions on Mr. Kalesnikoff. don't challenge his professional capabilities. don't think Ms. Prisciak challenges his professional capabilities in any way. MS. PRISCIAK: No, My Lord. THE COURT: She is merely seeking to avoid the presentation of argument through the mouth of this witness, and there is tendency once person is established as an expert, to accept the fact that his expertise extends perhaps to deciding how much housekeeping house needs, which he hasn't claimed any expertise on at all. So in that sense would accept the argument of Ms. Prisciak, and reject testimony, although haven't seen the report that's to be testified upon. have no doubt it's on the Court file, but didn't have it before me. Consequently, I'm not just sure whether I've excluded all of the evidence that was to be tendered, or just part of it. The tabulation (P-16) and explanatory testimony did not go far beyond the limited scope of mathematical calculation permitted by the learned trial judge. Accordingly the admission of this evidence did not impermissibly invade the province of the jury in this damage assessment. This point was clearly established in the following cross-examination of Mr. Kalesnikoff.[5] Mr. Kalesnikoff, when you were doing ‑‑ you've made number of calculations, one was for the past loss of income and one was for the future loss of income? If could clarify, did calculation on the past loss of earnings capacity. On the future, the calculation that I've done is the present value of the earnings capacity, not the loss, the loss is another matter. Right, the loss is matter for the jury to decide? Exactly. There is no dispute as to the criteria for expert testimony. In Roberge v. Bolduc, 1991 CanLII 83 (SCC), [1991] S.C.R. 374 L'Heureux-Dube J. states at p. 429: In my view, the trial judge was right. Expert evidence is admissible provided that the expert is qualified and his or her testimony is necessary or useful to assist the court in the determination of technical or scientific matters. In the straightforward circumstances of this case, the "expert" services of chartered accountant" or "forensic" accountant were not required to make the calculations that were placed before the jury. Given the Queen's Bench Tables and the documentary evidence, these calculations did not require expert opinion evidence. Accordingly, the tabulation could have been made in much the same way as in Seip, supra. Although Mr. Kalesnikoff made the calculations in P-16, we cannot characterize his testimony as "expert opinion" evidence in this case. Accordingly the tabulation was not objectionable because similar calculations could have been made by counsel or the trial judge: See C.L. Smith and J.C. Bouck, Civil Jury Instructions (Vancouver: Continuing Legal Education Society of British Columbia 1994) CIVJI 9.32. In this case the calculations involved relatively simple mathematics. Tabulations of this nature could easily be prepared in advance and tendered pursuant to pre-trial stipulation. Furthermore one should not overlook the availability of computer programs for this purpose. We observe that in Shuparksi v. Mair (N.W.T.S.C. January 18, 1995) Hetherington J.A. relied on software program (Support Works 1.0) to assist her in calculating the effect of interest on child support payments payable by the respondent. Given the nature of the case before us, we reject the appellant's contention that the admission of the tabulation and explanation of it by Mr. Kalesnikoff resulted in any miscarriage of justice. No substantial wrong or miscarriage of justice has been demonstrated but in the circumstances of this case, we would, if necessary, invoke Rule 39 with respect to any alleged error: see Terrie's Plumbing Heating Ltd. v. Grosvenor Fine Furniture (1982) Ltd., 1993 CanLII 6611 (SK CA), [1994] W.W.R. 275 (Leave to S.C.C. denied January 26, 1994). We reject the appellant\'s first ground of appeal. Before parting from this issue, we observe that the taxation of expert witness fees is not before us. However, this question should not be overlooked in taxing costs because the services involved in case of this nature do not merit the assessment of expert witness fees. GROUND The Learned Trial Judge erred in law in failing to caution the Jury regarding the weight to be given evidence of Douglas Kalesnikoff. The appellant contends that the learned trial judge should have specifically directed the jury on the limited purpose for which Mr. Kalesnikoff's testimony could be used as well as the weight that might be given to it. In dealing with this aspect of the case the trial judge gave the following instructions:[6] will deal in specific terms with the award you may be making in this case in moment, but first want to give you some specific advice which will be relevant if you decide to compensate the plaintiff for loss of income‑earning capacity. Her loss of future income, or her loss of future income‑earning capacity will be determined by first the degree of her disability, the extent to which she will in the future see her income reduced as result of her injury. Secondly, the length of her working life expectancy. This is drawn from actuarial tables, and is statistical average. The discount rate of interest, this is, in effect, discount from bulk award to offset the value of the interest which lump sum payment could earn over the period of her working life. believe the report of Mr. Kalesnikoff will be of assistance in deciding how to make this calculation. Other contingencies: there are contingencies in life, illness, job loss, accident, can reduce earning capacity. Some times if these risks in every day economic life are taken into consideration, small percentage deduction from the gross or net award of pecuniary damages is made. You must remember, however, that such risks are often insured against through unemployment insurance or other protective programs, so that the adjustment is usually not large percentage. suggest that the precedents would support in this case, where mortality has already been considered, deduction in the order of 10 to 12 per cent. This instruction was followed with review of the relevant evidence. The learned trial judge left the truth of the respondent's post injury history for the jury to determine. From reading the charge as whole, he made it clear that the weight of the respondent's evidence as well as the supporting medical and non-medical evidence was solely for the jury. Although the trial judge did not specifically focus on the need to weigh and consider the assumptions underlying Mr. Kalesnikoff's calculations, we find no reversible error in the circumstances of this case. It would have been preferable for the trial judge to have instructed the jury as to the importance of their primary findings of fact, as necessary foundation for their making any calculations or assessment; however any such deficiency was canvassed by learned counsel for the respondent. We refer in particular to the following passages reproduced from Mr. Halyk's address to the jury:[7] Now with respect to what the nurses said who worked with Ruth with respect to her ability to continue in the future, and if there is any one person in this room who wants to continue working in the future it's Ruth Graff, think she told you that, she would like to continue working. The other side of the coin is, and the important side of the coin is, can she continue working as nurse, and my respectful submission, as the evidence indicates with the greatest of respect to Ruth, that that's not very likely that she's going to be able to continue working. Now whether she can get through another month, another six months, another year, don't know. guess that's what you people have to decide, because it's important you decide what the probability is. Nobody, don't think, can predict the future, at least nobody in this room, with total accuracy, and that's why what you have to look at is the probability, the simple probability as to whether she will be able to keep working. If it's probable that she will not be able to keep working her normal life working expectancy, then she is entitled to an award, she is entitled to be compensated, and that's why we had the evidence of Mr. Kalesnikoff, so you don't have to go into the jury room and start pulling numbers out of the air. We have tried to help you by giving you the appropriate numbers. Now how you apply those numbers is entirely up to you as to whether ‑‑ if it was worst case scenario and something over $600,000.00, if she couldn't work from now until 65, that's what she would be entitled to, and entitled to in law in every sense of the word, but if you say, no, she'll be able to get through another year or two, then it's something less and the tables will help you. If you say not only that, but, sure, she's not going to be able to work as nurse any more, because the evidence is pretty clear, the probability of that is pretty remote that she will be able to work as nurse, but we think she should go and do something else, maybe she could work in some other type of facility, she's not going to earn the same kind of money or whatever else, then you plug that in, and that's why we helped you, we thought, we tried to help you with the evidence from Mr. Kalesnikoff again. It's simply if you say, well, she'll earn two‑thirds less the rest of her life and she'll be able to work until 55 instead of 65, well, you can just take those figures and make the appropriate adjustments, but that is the key part of this case, with the greatest of respect, your decision as to the future loss of earnings, or the probability of future loss of earnings is the key to the whole thing in terms of the appropriate award in terms of the large amounts of money that Ruth Graff is entitled to. We reject this ground of appeal because any alleged non-direction does not amount to reversible error. GROUND The Jury's finding of the future loss of income capacity was so inordinately high that it is perverse, wholly out of all proportion, unsupported by the evidence and unreasonable. The controlling standard of review with respect to damage awards has been expounded in number of cases in this province. For the purposes of this appeal we need only refer to Seip, supra, where the Court stated at pp. 43 44 and 59: The principles that should be observed by an appellate court in deciding whether it is justified in disturbing the finding of court of first instance as to quantum of damages were articulated by Viscount Simon in Nance v. British Columbia Electric Railway Co. Ltd., 1951 CanLII 374 (UK JCPC), [1951] A.C. 601; [1951] All E.R. 448; [1951] All E.R. 448; [1951] D.L.R. 705; W.W.R. (N.S.) 665; 67 C.R.T.C. 340 at 613-614: "Their Lordships now turn to the question of quantum of damages. As already stated, the jury awarded the plaintiff $35,000. The three members of the British Columbia Court of Appeal were unanimous, for different reasons, in holding that this figure could not stand. The Chief Justice was for reducing it to $20,000 (subject to further reduction to $12,000.00 in respect of contributory negligence which he found proved); Sidney Smith, J.A., who did not find contributory negligence proved, would have awarded $12,000; and O'Halloran, J.A. would have left the figure to be determined at new trial on materials more adequate than those available at the actual trial. "In those circumstances two distinct questions arise: (1) What principles should be observed by an appellate court in deciding whether it is justified in disturbing the finding of the court of first instance as to the quantum of damages; more particularly when the finding is that of jury, as in the present case. (2) What principles should govern the assessment of the quantum of damages by the tribunal of first instance itself. (1) The principles which apply under this head are not in doubt. Whether the assessment of damages be by judge or jury, the appellate court is not justified in substituting figure of its own for that awarded below simply because it would have awarded different figure if it had tried the case at first instance. Even if the tribunal of first instance was judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be wholly erroneous estimate of the damage (Flint v. Lovell, approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. The last named case further shows that when on proper direction the quantum is ascertained by jury, the disparity between the figure at which they have arrived and any figure at which they could properly have arrived must, to justify correction by court of appeal, be even wider than when the figure has been assessed by judge sitting alone. The figure must be wholly `out of all proportion'. (per Lord Wright, Davies v. Powell Duffryn Associated Collieries Ltd.)" (footnotes omitted) [12] The "Nance test" has been adopted in Canada. In Bunce v. Flick et al., 1991 CanLII 7975 (SK CA), [1991] W.W.R. 623; 93 Sask R. 53; W.A.C. 53 (C.A.) Sherstobitoff, J.A., succinctly summed up the controlling principle in the following passage at p. 631: "A court of appeal, before interfering with an award of damages, must be satisfied that it was `either so inordinately low or so inordinately high that it must be wholly erroneous estimate of the damage': Nance v. British Columbia Electric Railway 1951 CanLII 374 (UK JCPC), [1951] A.C. 601; [1951] All E.R. 448; W.W.R.(N.S.) 665; 67 C.R.T.C. 340; [1951] D.L.R 705 (P.C.). It cannot act because its own view of the evidence would result in different conclusion. It can intervene only where there was no evidence upon which the judge could act, or where he acted upon mistake or wrong principle, or where the result was wholly erroneous. Woelk v. Halvorson, 1980 CanLII 17 (SCC), [1980] S.C.R. 430; [1981] W.W.R. 289; 14 C.C.L.T. 181; 114 D.L.R. (3d) 385; 24 A.R. 620; 33 N.R. 232 and Watkins v. Olafson, [1989 CanLII 36 (SCC), [1989] S.C.R. 750.]" [36] In our opinion the learned trial judge was entitled to reject the pure mathematical approach propounded by the plaintiff. He was obliged to weigh and consider the various imponderables such as the availability of employment, the effect of Crohn's disease as well as other contingencies of life. In the circumstances of this case the cloak of mathematics cannot give an air of scientific accuracy to decision that is fundamentally one of judicial assessment rather than mere calculation. On the evidence adduced in this case, one cannot discard the "crystal ball" and opt for pure mathematical approach. [37] Although Keizer v. Hanna and Buch, 1978 CanLII 28 (SCC), [1978] S.C.R. 342; 19 N.R. 209; involved damages in fatal accident case, the following words of Dickson, J., at p. 351 are instructive: "At the end of the day the only question of importance is whether, in all the circumstances, the final award is fair and adequate. As an initial matter, we observe that there is no suggestion in the record that the jury was attempting to give the plaintiff perfect compensation by making simple mathematical calculation: see for example Taylor v. University of Saskatchewan (1955), 1955 CanLII 208 (SK CA), 15 W.W.R. 459. (Sask. C.A.) If the jury had awarded $624,050.00, an amount equal to the present value of the plaintiff's total future earnings under the governing collective bargaining agreement, on the assumption that she would work to 65, then there would be serious question in light of Taylor, supra. However, the amount awarded was $337,130.00. It is fair inference that the jury considered the plaintiff's earning capacity to have been significantly diminished but not completely lost. In passing upon this ground of appeal we observe that there was non-medical and medical testimony of brain injury sequelae in the case of Ruth Graff. The weight of such evidence was question solely for the jury and in his instructions the learned trial judge left the issue with them. The instructions were not weighted in favour of the plaintiff. On fair reading of those instructions, one can say that the trial judge fairly raised the factors that had been stressed by counsel for the appellant when dealing with credibility of the various witnesses including the plaintiff and her co-workers. The trial testimony focused not so much on the physical and motor sequelae as on other sequelae. The medical history stressed the cognitive sequelae and the non-medical testimony of co-workers and others emphasized the behavioural and emotional sequelae. Six medical doctors testified about their roles in Ruth Graff's treatment and about her medical problems. Dr. L. Klein, neuro-surgeon who had seen her on 21 August 1990, the day following the collision, stated that based on his observations he concluded that she had sustained moderate to severe head injury.[8] Dr. P. Davidson, neurologist who attended her on 25 February 1991, observed that her problems with poor memory, weak concentration and attention, and easy distractibility were consistent with head injury sustained in an automobile collision. Dr. Davidson testified that people who become unconscious at the outset of an injury, as had Ruth Graff, are much less likely to recover from their injury with the passage of time.[9] Dr. Boey, general practitioner, testified about the symptoms of forgetfulness, poor concentration and difficulty expressing herself outlined to him by Ruth Graff on 29 January 1991. Dr. S. Paniak, clinical neuropsychologist whose expertise is in the diagnosis, assessment and treatment of the effects of brain injury on behaviour and thinking, examined Ruth Graff on 24 and 25 April 1991 and again two years after the collision on 22 August 1992. In his testimony at trial he primarily focused on the cognitive sequelae. His first evaluation demonstrated significant deficits in the areas of divided attention (the ability to consider two or more pieces of information at time), of incidental memory (the ability to remember new information spontaneously), and of problem solving and reasoning. In addition, Ruth Graff suffered from fatigue and was more susceptible to anger and stress. Dr. Paniak re-examined her on 22 August 1992. He testified that once two years elapse, patients are unlikely to recover further from the effects of brain injury.[10] Two years post-injury is generally when deficits are considered permanent after this type of head injury. During his last examination Dr. Paniak found that Ruth Graff's ability to express herself and to think quickly and efficiently and her incidental memory all showed improvement. However, she continued to suffer from emotional sequelae an inability to control her emotions. He testified that her powers of concentration and rapid thought were permanently impaired and her problem solving and reasoning skills, were, as compared to people of similar age and education, "almost off the bottom of the scale". In dealing with the vocational aspects of her employment, Dr. Paniak testified that it would undermine her work performance. He pointed out that she might exhibit these deficiencies less in low stress, part-time nursing position. The testimony of the other two medical practitioners called as witnesses was consistent with the medical testimony of their colleagues. Five of Ruth Graff's co-workers in nursing at the hospital gave evidence of her pre-injury state and decreased competence as nurse following the injury. Each of them testified in detail as to her capable nursing skills before the injury. During their testimony serious questions were raised about her ability to continue as nurse. This concern was reflected and illustrated in the following testimony of Ms. Shawna Lewis:[11] Ruth isn't the same person any more. Where she was very talkative, outgoing, energetic person she is more on the withdrawn side. She is very emotionally labile. You can be talking to her one moment and in the next moment she is crying for no apparent reason. She panics easily. In stressful situations she would previously be able to priorize her care and change it and do whatever needed to be done for these people. Now she becomes very frustrated. She flies off the handle quite easily with patients and other staff members. She is forgetful at times. You can be giving her report on patient and you know she is not paying attention to you, she is asking you the same questions you've already answered. Physically, she seems like she is tired all the time. She falls behind in her work, leaving the rest of us to pick up the slack. do not believe that she is safe worker, and would not want her taking care of one of my family members now. During their testimony her co-workers referred to errors in her work and acknowledged covering for those errors. As well, Ruth Graff and her sister-in-law Sharon Woytiuk testified about post-injury effects. In this case, the appellant did not call any medical evidence to contradict the testimony of the plaintiff's medical witnesses. This is significant because under s. 50(1) of The Queen's Bench Act, defendant may apply for an "independent" medical examination and later apply to have that medical examiner called as witness under the provisions of s. 50(7).[12] The jury was required to weigh and consider both the medical and non-medical testimony. Learned counsel for the defendant stressed the issue of credibility and the need to determine the truth of Ruth Graff's testimony to the effect that her alleged problems were attributable to the injuries sustained in the collision. At the end of the day this issue and the consequent assessment of her losses fell to be determined by the jury. It is fair inference from the record that the jury accepted the testimony of Ruth Graff and witnesses called on her behalf. The jury could not have assessed the "future loss of earnings" at $337,130.00 unless they accepted the evidence that she had suffered significant loss of earning capacity. The trial record discloses ample evidence to support this finding. Applying the controlling standard of review, we cannot say that the award in issue was so inordinately high that it must be set aside and a new trial ordered. The principles stated by the Supreme Court of Canada in Warren v. Gray Goose Stage Ltd., 1937 CanLII 52 (SCC), [1938] S.C.R. 52 are apposite. In that "closed" head injury case, this Court allowed an appeal on the ground that the general damage award was excessive. On further appeal the Supreme Court restored the jury award and in the following passages at (pp. 55-57), it emphasized the role of the jury: The main proposition advanced by counsel for the defendant before us was that on the evidence no causal relation is proved between the headaches and the accident that the evidence is so vague that it could not reasonably be concluded that the headaches were the direct result of the accident. But there was some evidence, if believed, sufficient to connect the headaches with the accident. The weight of the evidence was question solely for the jury and in an admirably clear and direct charge the learned trial judge put that question to the jury as "the big question" to be decided by them. If you find he was not suffering from headache before the accident and that he struck his head on the occasion in question against the back of the front seat of the car and has been suffering headaches since then, it would be fair inference that it was the blow on the head from the back of the front seat that caused them; and in that case the evidence of Dr. McConnell would be of some importance. But before using the evidence of Dr. McConnell at all you must find that the headaches did not exist before the accident and that he did not suffer from headaches before the accident. Because the evidence of Dr. McConnell is not going to be of any assistance to you in coming to conclusion as to whether he had these before or after. He says: "Assuming the truth of his history"; that is, assuming the truth of what the plaintiff tells him, then he says: "The condition found could be due to the accident". But he also says "The condition which found may have existed long before the accident." So that as to whether he was suffering from those injuries before the accident or whether they commenced after the accident, the evidence of Dr. McConnell does not help you one way or the other. If you find they were non-existent before the accident, then you consider the evidence of Dr. McConnell he found the third ventricle was slightly larger than normal, that the left frontal region was abnormal, there was larger space than normal, and that they were liable to cause headaches. The jury could not have assessed the general damages at $5,000 unless they had accepted the plaintiff's evidence that the headaches were the direct result of the accident because the other complaints of the plaintiff were admittedly of trifling significance. The jury's finding of liability, affirmed as it was by the Court of Appeal, must stand. Once liability has been established, any views as to the weakness of the evidence regarded from the point of view of liability (the weight of which evidence, we repeat, was for the jury) must not influence the Court on the amount of compensation for the injuries. While it may be that the general damages were awarded on generous scale, there was no firm ground, in our opinion, on which the Court of Appeal was entitled to set aside the jury's assessment. This was essentially case for jury and it is quite impossible for the Court to say that the amount of the damages fixed by the jury was so large that the jury reviewing the whole of the evidence reasonably could not properly have arrived at that amount. Lord Wright in the House of Lords in Mechanical and General Inventions Co. v. Austin said: The appellate court is never the judge of fact in case where the constitutional judge of fact is the jury. For the appellate court to set aside the verdict of jury as being against the weight of evidence, merely because the court does not agree with it, would, in my judgment, be to usurp the functions of the jury and to substitute their own opinion for that of the jury: that would be quite wrong. Much more is necessary in order to justify the setting aside of jury's verdict where there is some evidence to support it. And at p. 377: The jury were, as the Lord Chancellor explains, properly directed and had all the facts fully before them. In considering their award on damages, that view of the evidence most favourable to their finding must be taken, not the view most adverse to it, if or where two views are competent. It is true that the damages awarded ran into big figures, but damages cannot be treated as excessive merely because they are large. Excess implies some standard which has been exceeded. The authorities are numerous but we might usefully refer to the judgment of the Privy Council in McHugh v. Union Bank of Canada. That was an Alberta case. Beck, J., sitting without jury, assessed the damages (a mortgagee's negligence case) at $2,800. The Albert court of appeal set aside the assessment but granted to the plaintiff the option to have it referred back to the clerk of the court at Calgary to take an account within prescribed limits of what damage, if any, the plaintiff had suffered by the negligence of the defendants. Upon appeal to this Court, the majority (Duff and Anglin JJ. dissenting) affirmed the order permitting reference at the plaintiff's option but varied the directions as to the mode of assessing the damages. Upon further appeal to the Privy Council, the assessment made by the trial judge was restored. Lord Moulton, who delivered the judgment of the Board, said at p. 309: The tribunal which has the duty of making such assessment, whether it be judge or jury, has often difficult task, but it must do it as best it can, and unless the conclusions to which it comes before the evidence before it are clearly erroneous they should not be interfered with on appeal, inasmuch as the courts of appeal have not the advantage of seeing the witnesses matter which is of grave importance in drawing conclusions as to quantum of damage from the evidence that they give. Their Lordships cannot see anything to justify them in coming to the conclusion that Beck's assessment of the damages is erroneous, and they are therefore of opinion that it ought not to have been disturbed on appeal. The importance of that case lies in the fact that the assessment had been made by the trial judge himself and the court of appeal had jurisdiction to rehear the case and to substitute their findings for his findings. But notwithstanding that both the court of appeal of Alberta and the Supreme Court of Canada had seen fit to set aside the assessment of damages made by the trial judge, the Privy Council restored the assessment. That course undoubtedly would not have been taken had the Privy Council not concluded that the two appellate courts below had erred in principle in interfering with the assessment made by the trial judge. In the case before us, however, the damages had been assessed by jury and the Court of Appeal had no jurisdiction in respect of the amount awarded to rehear the case and control the verdict of the jury. The court is not court of review for that purpose. If, viewing the evidence as whole, the Court of Appeal can see plainly that the amount of damages is in law indefensible, or that the trial has been unsatisfactory by reason of misdirection or wrongful admission or rejection of evidence, or if it is demonstrable that the jury have or must have misunderstood the evidence or taken into account matters which could not legally affect their verdict, the court may grant new trial for the reassessment of the damages. Accordingly we reject this ground of appeal and dismiss the within appeal with costs on double column V. CROSS-APPEAL The respondent challenges the trial judge's ruling with respect to payment for sick leave credits used as result of the injury and contends that Cunningham v. Wheeler, 1994 CanLII 120 (SCC), [1994] S.C.R. 359 mandates full recovery for such loss. Although Mr. Morrison mounted an extensive argument for the respondent's position on this point, Mr. Halyk in his concluding remarks made it clear that his instructions from the respondent were to preserve the integrity of the jury award and not risk new trial over relatively minor sum when viewed in the context of this case as whole. In the light of that submission we do not find it necessary or advisable to deal specifically with this point. Furthermore, on the facts of this case, there is real likelihood that the overall award includes some allowance for loss of number of accumulated sick days. In his instructions to the jury, the learned trial judge stated:[13] ... Her anticipated or probable future loss, if any, is something which you, assisted by some charts for calculation purposes, will have to work out. I'll say more about this in moment. It is possible, too, that you will wish to award something for the loss of number of accumulated sick days, and while it is quite clear, think, that accumulated sick days do not have the same value as full day's pay, you may wish to give consideration to awarding some amount as compensation for the loss of those days. During the course of their deliberations, the jury asked question concerning disability benefits. It was doubtful that this question was intended to refer in any way to sick leave benefits but in the discussion between the presiding judge and counsel reference was made to sick leave. In order to place the matter in perspective we reproduce the following extract from the record:[14] THE COURT: guess you've received copy of the question that has been asked. My essential inclination is that the disability benefits would not be affected by the amount of an award that was made. Does anyone disagree with that? MS. PRISCIAK: No. THE COURT: All right. MR. HALYK: But, with respect, My Lord, think this is little broader issue by the question. It's an issue was trying to address earlier. This issue of disability benefits, they should be instructed it plays no part whatsoever either way with respect to the matter, that is, in terms of either reducing the award for ‑‑ THE COURT: They should ignore the disability benefits set out in the contract. MR. HALYK: Totally. THE COURT: Okay. I'll tell them that. Bring them in. MR. HALYK: In all respects. THE COURT: Well, I'm not going to mention sick leave, because we've already dealt with that. MR. HALYK: No but in ‑‑ what I'm saying is it shouldn't be considered in any respect of anything in terms of their award. THE COURT: Okay. Well, think ‑‑ I'm not sure there is any other respect but what they're asking here is there? MR. HALYK: Well, here ‑‑ they're asking here, are disability benefits as outlined in the Collective Agreement reduced by the award, in other words what they want to know is if the award of damages here will affect her disability benefits. THE COURT: Yes. Well, the answer is no. MR. HALYK: But the other side of the coin is, should they consider in future award the disability benefits she might receive. In other words, the reverse. THE COURT: Oh, okay, well, we'll cover that, too. MS. PRISCIAK: But that's not the question, My Lord, mean the question is very straightforward. THE COURT: Yes, I'll just answer the question, but will probably tuck something in along the lines that you mentioned. MR. HALYK: Just no either way in any situation. THE COURT: Well, bring them in. MR. HALYK: Anyway, whatever. THE COURT: have been asked the question, Are disability benefits as outlined in the Collective Agreement reduced by the award of damages for future loss of earnings?" The answer is no, the disability benefits in the contract should not affect your order, nor will your order affect the disability benefits. Unless there is something else, that's what we were called for. In the circumstances of this case, we need say no more about this issue. In light of Mr. Halyk\'s submission we dismiss the cross-appeal without costs. DATED at the City of Regina, in the Province of Saskatchewan, this 25th day of August, A.D. 1995. TALLIS J.A. concur BAYDA C.J.S. concur JACKSON J.A. [1]. Appeal book Volume 1, page 14(a) and Volume 6, page 673. [2]. Parties to tort litigation in this jurisdiction are free to enter into "structured" settlements but the Court has no jurisdiction or power to impose such settlement. [3]. Appeal book, Volume 3, page 438g, Exhibit P16. [4]. Appeal book, Volume 4, page 349. [5]. Appeal book, Volume 5, page 520. [6]. Appeal book, Volume 6, pages 655 to 656. [7]. Appeal book, Volume 6, page 641-643. [8]. Appeal book, Volume 4, pages 272-273. [9]. Appeal book, Volume 4, page 469. [10]. Appeal book, Volume 4, page 234. [11]. Appeal book, Volume 5, page 409. [12]. Section 50 reads in pertinent part: 50. (1) In any action brought to recover damages or other compensation for or in respect of bodily injuries sustained by any person, the court may order that the person, in respect of whose injury the court may order that the person, in respect of whose injury the damages or compensation is sought, shall submit to be examined by one or more qualified medical practitioners, whom neither party proposes to call as witness or witnesses at the trial of the action. (7) Any medical practitioner who makes an examination under this section may by ex parte order of the court be called as witness at the trial, in which case he shall not be deemed to be witness called by either party. [13]. Appeal book, Volume 6, page 653. [14]. Appeal book, Volume 6, page 670-672.
The Appellant/Defendant, Bennett appealed a judgment resulting from a jury trial. At trial, the Plaintiff had been awarded damages for injuries suffered in a motor vehicle accident. The Defendant limited her appeal to the amount awarded for future loss of earnings. The Respondent/Plaintiff cross-appealed on the issue of whether the trial judge should have directed the jury to deduct sick leave benefits from her past loss of income. Also at issue was whether a forensic accountant should have been permitted to testify as to the present value of the Plaintiff's future earning capacity. HELD: Appeal dismissed. 1)The forensic accountant's evidence was properly admitted as explanatory of the calculations done. The same calculations could have been done by a computer program or by counsel or the trial judge with the assistance of the tables to the Rules of Court. 2)The trial judge properly explained to the jury that the accountant was not testifying as an expert. 3)Given the nature of the accountant's evidence, no expert fees should be permitted to the Plaintiff for the accountant's report or attendance. 4)The Appellant's argument that the trial judge failed to properly direct the jury as to the weight to be given to the accountant's evidence was rejected. 5)The Court was unable to say that the jury's award for loss of future income was so inordinately high that it should be set aside and a new trial ordered. 6)The Plaintiff's cross-appeal relating to the disability benefits was also dismissed.