IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140813

Docket: M129630

Registry:
New Westminster

Between:

Abjot Boparai

Plaintiff

And

Opinder Boparai
representative of
the Estate of Baljinder Boparai (deceased),
the said Opinder Boparai, Morgan Mangel,
Dorothy Thompson and Rajinder Rai

Defendants

Before:
The Honourable Mr. Justice Schultes

Reasons for Judgment

I.  INTRODUCTION. 2

II.  EVIDENCE. 3

A.  The
Accident 3

B.  Physical
Injuries and Their Consequences. 3

1.  Soft-tissue
Injuries. 3

2.  Facial
Scarring. 4

(i)  Physical
Effects. 4

(ii)  Emotional
and Psychological Effects. 6

3.  Vocational
Assessment 8

4.  Psychological
Injury and Effects of the Death of his Mother 9

III.  DISCUSSION. 12

C.  Credibility. 12

D.  Non-pecuniary
Damages. 12

1.  Approach. 12

2.  Physical
Injuries. 13

3.  Psychological
Injury. 17

4.  Loss
of Care, Guidance and Affection. 18

5.  Loss
of Future Earning Capacity. 18

6.  Special
Damages. 22

7.  Cost
of Future Care. 22

IV.  SUMMARY. 22

V.  COSTS. 23

I.                
INTRODUCTION

[1]            
This case deals with the consequences to Abjot Boparai of a tragic motor
vehicle accident that he and other members of his family were involved in on
September 18, 1999, when he was eight years old. His mother and his twin
brother were killed, and he suffered significant facial scarring that has
required numerous follow-up treatments over the years.

[2]            
His mother was driving at the time of the accident. He has brought this
action as an adult against her estate. Liability has been admitted on her
behalf. The action has been discontinued against all other defendants.

[3]            
He was 21 years old at the time of trial.

[4]            
The defence concedes that Mr. Boparai is entitled to non-pecuniary
damages for his physical injuries and their consequences, but takes issue with
the amount being claimed for them, as well as with some of his proposed costs
of future care and special damages. The defence opposes entirely his claims for
psychological injury and impairment of his future earning capacity, and
stresses that the serious disruption of his family situation, although
deserving of great sympathy, is not compensable.

II.              
EVIDENCE

A.            
The Accident

[5]            
Mr. Boparai’s mother had taken him and his three siblings to a
movie in the family vehicle, and they were returning home.

[6]            
After making a left turn from 72nd Avenue on to 152nd Street in Surrey,
she immediately attempted to change from the left to the right lane on 152nd Street.
When doing that the right rear of her vehicle came into contact with the left
front of a vehicle that was already in the right lane, slightly behind her.

[7]            
The contact between the two vehicles caused the Boparai vehicle to lose
control, cross the raised median and enter the oncoming lane, where it had a
serious collision with a vehicle that was proceeding in that lane. It was this
second impact that resulted in the deaths of Mr. Boparai’s mother and
eventually of his twin brother Sameer, who died from his injuries after a few
days, and in Mr. Boparai’s own injuries.

B.             
Physical Injuries and Their Consequences

1.              
Soft-tissue Injuries

[8]            
Mr. Boparai suffered injuries to his right leg, especially to his
calf, as well as to his shoulders and neck.

[9]            
Dr. Muncey, his family physician, also noted stiffness and
tenderness in his back when she examined him in December 1999.

[10]        
When she saw him in January 2000, she recommended “pool therapy” for his
symptoms. Mr. Boparai said that this therapy helped “over time”.

[11]        
Her last note in relation to the soft-tissue injuries was for a visit on
July 22, 2003, almost four years after the accident. There are no entries in
her records relating to those injuries between this visit and the previous one
in 2000.

[12]        
In a list of his medical treatment dates in relation to this accident, Mr. Boparai
refers to 12 visits to Dr. Brar, a general practitioner in India, during
this intervening period –
from August 2000 to May 2001. In cross-examination he said that a doctor in
India had “looked [him] over”, but that he had not received treatment for his
injuries there.

[13]        
Mr. Boparai described the leg injury as being more serious and
lasting even longer than the supporting medical records might suggest.
According to him, these problems remained until in “mid-high school – six to eight years after the
accident”. His evidence was that because of them he could not play sports
competitively, and he could not take physical education class until Grade 10.

2.              
Facial Scarring

(i)             
Physical Effects

[14]        
The injuries to his face from the accident were much more serious.

[15]        
Multiple pieces of glass were embedded in his face and he had scarring
to much of the left side.

[16]        
The most significant scars ran down from his mouth and along his
jawline, from the side of his nose into his upper cheek area, and from the side
of his nose up towards his left eye. He also had multiple smaller scars in
places where the glass was embedded.

[17]        
In the early stages the scarring around his left eye made it difficult
to close that eyelid completely, which had an effect on his ability to sleep.
The scar around his mouth caused him ongoing problems with opening and closing
it, which have only recently been reduced to an acceptable level.

[18]        
He was very disturbed when he saw himself in a mirror after the
accident. These facial injuries were also physically painful.

[19]        
He was referred to Dr. Rai, a plastic surgeon, in April 2003. Dr. Rai
provided various treatments to Mr. Boparai over the next nine years.

[20]        
Dr. Rai found that many of the scars were depressed and
“hyperpigmented” (darker than the rest of the skin on the face), and so were
extremely prominent.

[21]        
The initial steps were the removal of some of the remaining glass from Mr. Boparai’s
face, and a skin treatment program to improve its colour and tone and reduce
the hyperpigmentation of the scars.

[22]        
Dr. Rai performed laser surgeries to improve the scars in 2004,
2005 and 2006. In 2007 he performed a different procedure, which involved injecting
a substance into Mr. Boparai’s face to fill out some of the depressed
parts of the scars. The last procedure before trial, involving “scar revision”
and “a conservative amount of abrasive surgery” was carried out in 2009. Mr. Boparai
also continued with the skin treatment during these periods.

[23]        
When he wrote his first report in January of 2012, Dr. Rai noted
that the scars were “still present but have improved.” Most prominent were the
seven centimetre-long scar on Mr. Boparai’s lower lip and chin, which was
“slightly reddish and raised from the surface, with some depression present”,
the one emerging from the corner of his mouth, and the one from the side of his
nose to his eyelid. There was also residual dimpling and depressions of the
skin on his cheek. Finally, Mr. Boparai continued to experience some areas
of tingling and pain on the left side of his face.

[24]        
Dr. Rai wrote that he would need to follow up with Mr. Rai to
see if any further surgery is necessary to try to improve the scars, in
addition to continuing with the skin treatment program. He explained that:

[a]t the present time I recommend
that no further surgery be done and he will have to accept the residual scars
on his face as a permanent deformity that he will have to live with.

[25]        
Dr. Rai saw Mr. Boparai for a follow up in November 2012 and
reported that he had “healed extremely well”. Residual issues remain however,
especially the scar from the lower lip to the chin, which is still
hyperpigmented and slightly depressed. In his view just one more operation will
be necessary – additional
scar revision to that area, possibly with some further injection to fill out
the depressed portions. This would be accompanied by a resumption of the
previous skin treatment program.

[26]        
The skin treatments are not without their own negative effects. They
lighten his skin on the side of the face that has the scarring, requiring Mr. Boparai
to treat the other side as well so that the skin tones are the same. They also
make his skin extremely dry and flaky, which does not look pleasing.

(ii)            
Emotional and Psychological Effects

[27]        
Mr. Boparai testified that he did not want to return to school
after the accident because of his scars. He found it disturbing to look in the
mirror. When he did return to school his few close friends still had contact
with him but others gave him “weird stares” and some people laughed and pointed
at him. He was also bullied. He said that some older kids called him “Two
Face”.

[28]        
He found the ongoing treatments for his scarring “very scary” and after
each one had to endure recovery periods of pain and inflammation, as well as
the embarrassment of going to school with bandages on his face.

[29]        
Despite Dr. Rai’s optimism, Mr. Boparai himself does not think
that the scarring has really improved.

[30]        
He also testified about its ongoing effects on his employment and social
interactions.

[31]        
He started working at McDonald’s Restaurant in Grade 10 and continued
there for about five or six years. He was afraid that he would be turned down
when he applied because people would not like looking at him. He worked in the
back preparing food throughout his time there, rather than working on the front
counter, because he was scared of dealing with people – having to “reveal my scars to the public”, as he
put it.

[32]        
He graduated from secondary school in 2009 and then completed an
Associate of Arts program in Criminology at Kwantlen Polytechnic University. He
achieved an A minus average there. As of the trial he had transferred his
credits to Simon Fraser University (“SFU”) and was working towards a Bachelor
of Arts degree in Criminology there.

[33]        
Transferring to SFU was quite trying, because of all of the new people
that he has to interact with. He speaks to people in his classes but finds it
hard to make friends.

[34]        
People have asked him about his scars, both at school and work. This
makes him sad, but also hostile, as he shifts the blame towards them for
asking. Some people have thought that the scars meant that he was a gang
member, or that he had been knifed.

[35]        
He has been offered jobs at school but has declined because the thought
of dealing with people is too frightening. He recently took a job as a security
guard at SFU because it would not involve much public contact.

[36]        
He testified that his plan is to work in some type of criminal justice
capacity after he graduates. Originally he was most interested in police work,
but as of the trial he had switched his interest to working with the Canadian
Border Security Agency. He previously applied to join the armed forces but was
rejected because he needs laser surgery to correct his vision. He did not rule
out pursuing a career in law either, as his father practiced law in India
before coming to Canada.

[37]        
He grew a full beard a few months before trial. He observed that fulfilling
this requirement of his religion would be a way of hiding some of his scars.

3.              
Vocational Assessment

[38]        
Richard Carlin performed a vocational assessment of Mr. Boparai and
provided a report in November 2012.

[39]        
He administered tests to Mr. Boparai to measure his occupational
interests and personality style. Of the occupations held by people with similar
profiles, Mr. Boparai said that the ones reflecting a similar personality
style to his (those who like to deal with things rationally and logically) held
the greatest interest for him.

[40]        
The important aspect of Mr. Carlin’s opinion is that he found that
both Mr. Boparai’s self-consciousness about his scarring, and the scarring
itself, have “more likely than not resulted in his sustaining a loss of
capacity to participate in a completive labour market.”

[41]        
First, Mr. Boparai’s tendency to avoid social situations will
restrict the types of positions he seeks. Specifically, it is probable that he
will avoid jobs that require a significant element of social contact.

[42]        
However, the aptitudes and vocational interests that were revealed by
his test results were not exclusively for positions that have that requirement,
and also included jobs that involve more human interaction.

[43]        
Second, studies have shown that appearance is indeed a significant
factor in hiring, and Mr. Carlin expects that “the extent of
discrimination faced by individuals with facial scarring would be proportional
to the degree of disfiguration.”

[44]        
It was not possible for Mr. Carlin to quantify the extent of Mr. Boparai’s
loss, I infer because of the lack of definite career plans at this early stage
of his working life.

[45]        
Mr. Carlin recommends that Mr. Boparai undergo therapeutic
counselling to address the self-esteem issues that arise from his scarring, as
well as ten sessions of vocational counselling to assist him in identifying
suitable occupations and minimizing the impact of the scarring on his
employability.

[46]        
Mr. Boparai testified that he is open to the idea of receiving
counselling.

4.              
Psychological Injury and Effects of the Death of his Mother

[47]        
Mr. Boparai does not have any memory of the accident itself. He
only remembers going to the movie with his family and then waking up after the
accident, feeling a “weird sensation” on his face.

[48]        
After being treated in hospital he was taken to his aunt’s house and
told about what had happened to his mother. He was not able to understand the
situation completely. The same was true of his level of understanding when he
saw his brother being cared for in the hospital before he died.

[49]        
He and his family moved in with their aunt after the accident. Leaving
his own home added to the disruption of his mother and brother’s death and he
recalls feeling “sad and lonely.”

[50]        
Mr. Boparai’s sister Parampreet, who was 13 years old and also
present in the vehicle when the accident occurred, recalled that he was much
more reserved after the accident. Initially he did not seem to know what had
happened, but then he started to get angry. At this point “the littlest thing
would set him off”, she said. His formerly large group of friends was reduced
to the boy who lived upstairs from their basement suite and another boy whose
father had died.

[51]        
After he and his siblings finished the school year, his father moved the
family back to India, from where they had emigrated when he was three years
old. This was a positive move within the family, because he had the love of his
grandparents to replace his missing mother, and their standard of living was
higher than it had been in Canada. School was more difficult because he had
lost his ability to speak Punjabi while he was in Canada and had to reacquire
it, and because of the attention paid to his scars. In contrast, Parampreet’s
perception was that he seemed to enjoy school in India.

[52]        
The family returned to Canada after about a year and a half, when Mr. Boparai
was in Grade 5. He described a decline in his behaviour at this point. He
stopped talking to most of his friends and kept up contact with only one of
them. He also began to avoid socializing with people in general. He behaved
aggressively, including towards his sisters. Without his mother he felt that he
had no support and love at home, and spent much of his free time playing video
games to escape.

[53]        
Parampreet recalled that when they returned to Canada, her brother
“started being the same angry person” that he had been before they left.

[54]        
When he was in Grade 9, Mr. Boparai was referred by his family
doctor to Dr. Gandhi, a child psychiatrist, for an “assessment of the
impact of trauma” from the accident.

[55]        
He first saw Dr. Gandhi in December 2004. There were four follow-up
sessions – three in 2005
and the final one in January 2006. These follow-ups were prompted by concerns
from Mr. Boparai’s father, such as that he was spending all of his time playing
video games, was not responsive to authority and was neglecting his personal
hygiene.

[56]        
In the conclusion of her report Dr. Gandhi stated:

In my opinion, although Abjot did not express any clear
memories of his mother, the loss of his mother had a significant impact on his
development. There was a lack of structure, routine and consistent parenting.
Abjot did feel the loss of his twin brother with whom he had a close
relationship.

Abjot was also experiencing
anxiety when he was in a vehicle with someone else except his father. He had
fear that something bad would happen again. Abjot had scars on his face due to
the physical injuries. He was also not able to play sports. These aspects of
his injuries likely can have emotional impact on his self-esteem, confidence
and a reminder of the losses he suffered in this accident [sic].

[57]        
Although she was not able to provide a prognosis because of the
relatively short time that she saw Mr. Boparai, Dr. Gandhi raised the
concern that his adverse childhood experiences “may affect his emerging
self-concept at different times in his development” and could result in
“augmented response to the subsequent trauma and stressors experienced in
adulthood.”

[58]        
In her report Dr. Gandhi also records Mr. Boparai as “feeling
alright with his facial scars” during his visits with her in February 2005 and
January 2006. Because of his age when he made these comments and the fact that Dr. Gandhi
was not focusing on the effects of his injuries, I do not see them as
undermining his evidence about those effects.

[59]        
In cross-examination she confirmed that her comments about Mr. Boparai’s
future were general ones, that are applicable to all patients in this
situation. She also did not purport to offer a diagnosis of post-traumatic
stress disorder or other psychiatric condition.

[60]        
Mr. Boparai said that
eventually his aggression “started going down” and that his friends and
relatives helped him overcome his emotional problems. In addition to Dr. Gandhi,
he also saw a counsellor from the Surrey community organization DIVERSEcity,
who also helped him with managing his aggressive behaviour.

[61]        
As of the time of trial he had not
yet had a romantic relationship. He explained that because he did not grow up
with feelings of love and comfort from his mother, he does not know how to
express himself to women. He has a least three close male friends however, all
of whom he has known since elementary school – including
one in whose wedding he was scheduled to serve as the best man shortly after
the trial.

III.            
DISCUSSION

C.             
Credibility

[62]        
Mr. Boparai came across in his evidence as a sensible young man,
who described the serious effects of this accident on his life in a low-key,
rather stoic way. There was no hint of emotionalism or exaggeration. He was
careful to distinguish among the different effects of the accident on his life – for example, attributing his
difficulty in romantic relationships to the absence of his mother’s influence
rather than to self-consciousness about his scarring. He also gave straightforward
responses to questions in cross-examination, even when the thrust of the
questions was contrary to his position in the case. Overall I found him to be a
very believable witness.

[63]        
I think his level of credibility was reflected in the fair approach
taken by the defence here, which was mainly to argue that some types of damages
are unavailable to him on a legal basis, rather than to suggest that his
evidence cannot be relied on.

D.            
Non-pecuniary Damages

1.              
Approach

[64]        
Mr. Boparai’s counsel submits that a total award in the range of
$150,000 – $200,000 is appropriate under this heading.

[65]        
In addition to the soft-tissue injuries and significant scarring, he
emphasizes that this is a case involving very serious psychological harm. In
his submission, it would be an artificial and ultimately futile exercise to try
to extract that portion of the psychological damage to Mr. Boparai that is
due solely to his scarring, from that caused by experiencing the accident and
losing his mother and brother.

[66]        
The defendant’s counsel, on the other hand, takes the position that it
is essential that we examine the discreet causes of Mr. Boparai’s
emotional suffering and current psychological difficulties, because only some
of them are properly compensable.

[67]        
As a threshold issue, I think the defendant’s approach is correct. First
of all, Mr. Boparai’s evidence was quite clear about the origins of these
various difficulties, in particular the relationship between his scarring and
his social discomfort. More importantly, as the defence has pointed out, my
ability to award damages in relation to the psychological trauma of the
accident and the death of his family member depends on different criteria being
satisfied than those that flow from his physical injuries.

2.              
Physical Injuries

[68]        
Dealing first then with the physical injuries and their results, Mr. Boparai’s
counsel submits that the soft-tissue injuries in themselves could easily
justify an award of $30,000 – $40,000. In addition the facial scarring should
result in an award at the high end of the range for that type of injury. He
relies on the following cases to illustrate this range:

[69]        
The defendant’s counsel refers to a comprehensive canvass of the
authorities on damages for facial scarring that was carried out by Mr. Justice
Rice in Kim v. Kwak, 2006 BCSC 641 at para. 41. Rice J. concluded
that these cases:

…suggest an extremely wide range of general damages from
$2,000.00 to $70,000.00 depending on the severity and number of the wounds;
the treatment required; the visibility, length, and width of the resulting
scars; the amount of continuing discomfort or numbness surrounding the scar
tissue; whether corrective surgery might improve the sensation or appearance of
the scar; and any psychological effects suffered by the plaintiff

[Emphasis added.]

[70]        
Counsel submits that a proper application of these factors should lead
to an award in the range of $35,000 – $50,000.

[71]        
To summarize the physical injuries and their consequences, at a
vulnerable age Mr. Boparai received several serious facial scars from this
accident. He then had to endure numerous uncomfortable procedures to reduce
their visibility, without complete success.

[72]        
The scars have had a significant influence on his life to this point.
Although I agree that Dr. Rai has been able to improve them markedly from
their original state (and there was an additional surgery planned to try to
improve them further), the reality is that some degree of visible scarring will
be permanent.

[73]        
As significant as the scars themselves were, the self-consciousness and
embarrassment that they caused in Mr. Boparai as he was growing up were
equally damaging, making his schooling and social development much more
difficult. I accept that he has tried to avoid social interaction because of
these feelings, which were directly caused by the physical injuries.

[74]        
That said, and without minimizing the continuing visibility of some of Mr. Boparai’s
scars or the way that they make him feel about himself, I should say that to an
objective observer they are not shocking or disturbing, and a distinction
should be drawn between his situation and that of very severely disfigured
accident victims, whose every moment in public is a source of compassion or
discomfort for observers.

[75]        
The soft-tissue injuries that he suffered, mainly to his right leg, were
much less serious than the scarring. While there is no reason to doubt his
assertion that the leg injury kept him out of sports for several years and out
of physical education class until Grade 10, I think it would be unsafe to
conclude, in the absence of any evidence of ongoing treatment, that it was a
source of major discomfort after the last visit to his doctor in relation to it
in July 2003, about four years on from the accident.

[76]        
Of the factors influencing an award of non-pecuniary damages described
in Stapley v. Hejslet, 2006 BCCA 34 at para. 46, the ones that seem
especially relevant here are Mr. Boparai’s age, the nature of his
injuries, the severity and duration of his pain, his emotional suffering, the
impairment of his social relationships, and his stoicism (a factor that should
generally not penalize a plaintiff).

[77]        
Although it is helpful to consider damage awards in similar cases, they
are still at best a rough guide, and each case must ultimately be resolved on
its own facts: Kuskis v. Tin, 2008 BCSC 862, at para. 136; Lindal
v. Lindal, [1981] 2 S.C.R. 629, 129 D.L.R. (3d) 263 at 267.

[78]        
Of the cases provided on behalf of Mr. Boparai, the ones that deal
mainly with facial scarring are Logan, Georgiou and Araujo.

[79]        
Logan is the most similar, in terms of the age of the plaintiff
at the time of the accident and the primacy of facial scarring as the focus of
her damages. The facial damage that Ms. Araujo suffered was accompanied by
some reasonably serious injuries to other parts of her body, which were also
reflected in the amount of the award.

[80]        
These two British Columbia decisions fall within the range identified by
Rice J. in Kim.

[81]        
In contrast Georgiou, an Ontario decision, is an outlier by British
Columbia standards. Of the cases that the trial judge relied on to support an
award of $130,000, the only one that exceeds the range in Kim and is
primarily concerned with facial scarring was Wilson v. Kee, [1998] O.J. No. 6243
(Ont.Ct. J.(Gen. Div.)). There, a 23-year-old receptionist, who also did
modelling work, suffered “serious disfigurement” with resulting significant
psychological injuries, including depression. Her award was $110,000. In the
higher awards cited in Georgiou, the facial scarring was but one
component of catastrophic injuries.

[82]        
While there is no reason in principle why cases from another province
cannot assist in the analysis of an appropriate award here, the injuries and
psychological consequences in Georgiou and Wilson seem to be even
more serious than what Mr. Boparai has suffered. These decisions also seem
to represent the high end of the scale of awards for such injuries in that
province.

[83]        
On the other hand, Mr. Boparai’s scarring and the extent of his suffering
resulting from it is more serious than what was described in Logan and Araujo.

[84]        
Taking into account the relevant aspects of the injuries that I have
described, and receiving guidance from the cases without following them
slavishly, I award Mr. Boparai $100,000 in non-pecuniary damages for his soft-tissue
injuries and facial scarring.

3.              
Psychological Injury

[85]        
The defendant’s counsel relies on the decision in Kotai v. Queen of
the North (Ship), 2009 BCSC 1405 for the principle governing an award of
damages for psychological injuries that are not the result of physical
injuries.

[86]        
Following an extensive canvass of the authorities, Mr. Justice
Joyce concluded that the traditional requirement that a plaintiff prove “not
just psychological disturbance or upset as a result of the defendant’s
negligence but also that their psychological disturbance rises to the level
of a recognizable psychiatric illness” (para. 69, emphasis added) in
order to recover under this head of damages remains in place in British
Columbia. This is despite some comments by Chief Justice McLachlin in Mustapha
v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114 that might be
interpreted as supporting a more general and relaxed standard.

[87]        
I agree that the principle confirmed by Joyce J. governs here. Assuming
that Mr. Boparai can be said to have “experienced” the trauma of the
actual accident even though he cannot recall it now, the results, however
tragic, were the feelings of grief, loss and dislocation that one would expect
to accompany such an experience. Though compelling and deserving of sympathy,
they do not rise to the level of an actual medical or psychiatric condition. Dr. Gandhi
did not purport to make such a diagnosis and her comments about the long-term
effects of such an experience on Mr. Boparai were of a generic nature.

[88]        
As a result I am not able to make any award under this heading.

4.              
Loss of Care, Guidance and Affection

[89]        
Along similar lines, Mr. Boparai’s counsel was careful to emphasize
in his final submissions that no claim for loss of care, guidance and affection
in relation to the mother’s death is being pursued under the Family
Compensation Act, R.S.B.C. 1996, c. 126. I think this was a correct
position to take, because s. 2 of the Act makes it clear that only
actions that a deceased could have brought herself if she had lived are
permitted.

[90]        
Further, while the Act abrogates only the common law principle
that there can be no action against a person for causing the death of a third
party (Allan Estate v. The Co-Operators Life Insurance Company, 1999
BCCA 35 at para. 63), which is not the situation here, basic negligence
principles also make it clear that a negligent driver does not owe any duty of
care arising from the causing of her own death: Hubley v. Hubley Estate,
2011 PECA 19.

5.              
Loss of Future Earning Capacity

[91]        
The essential principles under this heading are not in dispute.

[92]        
To succeed in a claim of loss of future earning capacity, a plaintiff is
required to prove a substantial possibility of a future event resulting in a loss.
If such an event is proven, then it is open to the plaintiff to quantify his
loss according to the earnings that he will lose (the “earnings approach”), or
by the harm that has been caused to him as a capital asset in the working world
(the “capital asset approach”): Perren v. Lalari, 2010 BCCA 140 at para. 32.

[93]        
The capital asset approach is particularly useful in the case of a young
person who does not yet have a track record of earnings or a settled career: Sinnott
v. Boggs, 2007 BCCA 267.

[94]        
That approach requires the Court to consider various aspects of the
loss:

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.

Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at
356.

[95]        
After answering those questions the judge must go on to “make findings
of fact as to the nature and extent of the plaintiff’s loss of capacity and how
that loss may impact the plaintiff’s ability to earn income”. Although it is
not meant to be a mathematical calculation, adopting this method does not
relieve a judge from providing reasons for the resulting award: Morgan v.
Galbraith, 2013 BCCA 305, at para. 56.

[96]        
The loss of self-confidence caused by physical scarring can certainly be
an aspect of the impairment of plaintiff’s earning capacity as a capital asset.
As Chief Justice Finch observed in relation to a very badly scarred plaintiff
in Anderson v. Miner (1999), 57 B.C.L.R. (3d) 118 (C.A.):

18        There is, in my
respectful view, more to the capital asset of capacity to earn income than the
physical and intellectual components argued for by counsel for the defendants.
Physical and intellectual abilities may not amount to very much, without
self-confidence, motivation and ambition. Many people fail to achieve the
potential their natural gifts would suggest because they lack self-esteem, have
low social drive, and find themselves unwilling or unable to risk the chance of
failure.

[97]        
Mr. Boparai’s situation is perplexing in some ways. I accept his
evidence that he has felt socially inhibited because of his physical appearance
and has been reluctant to engage in student employment that requires public
contact. Yet, difficult as it may be for him to engage in such contact, he is
succeeding in his chosen post-secondary program, which he acknowledges involves
speaking to classmates at times, and he expresses future plans for occupations,
such as being a border services officer or practicing law, for which social
interaction would be a constant requirement. Although many of the professions
identified in the vocational testing as being consistent with his interests and
personality type have an introspective focus to them, others require a meaningful
level of social interaction.

[98]        
I accept that he is at the beginning of his adult working career and is
not yet fully informed about what potential careers may involve, but I find it
impossible to accept that a person of his obvious intelligence would not have
grasped the meaningful amount of social interaction involved in police work,
the military and law. I think his plans are legitimate and well thought out,
rather than being mere youthful imaginings.

[99]        
Mr. Boparai’s counsel sought to re-examine Mr. Carlin to bring
out the allegedly limited extent to which Mr. Boparai understands the
working world and has given serious thought to such careers as police work. I
found this effort unconvincing, and to the extent that it purported to rely on Mr. Carlin’s
conversation with Mr. Boparai outside the courtroom on matters to which Mr. Boparai
did not testify, of very limited weight in any case.

[100]     My
conclusion, applying the factors in Brown, is that Mr. Boparai’s
value to himself in the labour market has been impaired somewhat by his
scarring, in that there is hesitancy about putting himself in a position where
others will potentially stare at him. Some opportunities may be lost to him
within the careers that he ultimately pursues, because he may not want to put himself
forward for significant social interaction or public contact, even if it would
be a career benefit to do so in a particular situation. But the important point
is that there is no persuasive connection between his self-consciousness about
his appearance and his actual choice of a career. Instead, he seems to be
making choices according to his interests and aptitude, and not being deterred
by the mere prospect of some social contact being required. To this extent, his
own evidence contradicts that part of Mr. Carlin’s opinion.

[101]     Further,
despite Mr. Carlin’s reference to studies that demonstrate the existence of
employment discrimination based on physical appearance, I find that possibility
in Mr. Boparai’s situation to be quite low. His scarring is simply not
that distracting to an objective viewer, especially when viewed in the overall
context of his quite pleasant appearance.

[102]     Put
simply, his value to himself has certainly been impaired somewhat by this
degree of self-consciousness born of his injuries, but his overall prospects
remain quite positive.

[103]     Mr. Boparai’s
counsel seeks an award of $350,000 under this heading. That seems inordinately
high to me for the moderate loss of capacity that I have found. The cases cited
in that range do not involve comparable situations, and the one involving a
youthful plaintiff with an uncertain earning future (Romanchych v. Vallianatos,
2010 BCCA 20) resulted in an award with a current value of $83,360 being upheld.

[104]     A helpful
comparison might be found instead in Anderson, which involved a more
severely disfigured young plaintiff (extensive burns to her face and neck
required extensive skin grafts and surgical procedures). The type of loss of
confidence related to her appearance was similar to Mr. Boparai’s, but
seems much worse and, sadly, more grounded in reality. Mr. Boparai has a
greater record of educational success and, arguably, better remaining career
prospects based on his good academic capabilities. The evidence of Ms. Anderson’s
future earnings was completely speculative, and in this case it is nonexistent.
Finch C.J.B.C. increased the award at trial to $165,000 on appeal, which would
have a current value of $208,853.

[105]     Balancing
all of these various considerations, my conclusion is that an award of $104,500
for loss of future earning capacity is appropriate here.

6.              
Special Damages

[106]     The
defendant’s counsel concedes that Mr. Boparai is entitled to receive
$843.75 relating to his documented out-of-pocket expenses for his treatment
over the years. I agree with the defence that Mr. Boparai’s additional
claims for child care, his travel to India and his schooling there are unrelated
to his injuries and are properly subtracted from this claim.

[107]     The amount
of special damages will therefore be $843.75.

7.              
Cost of Future Care

[108]     The
defence concedes that the $8,150 cost of Dr. Rai’s recommended follow- up
treatments should be awarded.

[109]     I conclude
that personal counselling to assist Mr. Boparai in improving his
self-image for work purposes is also a valid and reasonable expense. I would
award $3,000 for this counselling

[110]     However, given
my findings on the level of Mr. Boparai’s vocational sophistication and
the lack of any impact by the injuries on his overall choice of careers, I am
not prepared to make an award for vocational counselling to assist him in
making supposedly realistic career selections. I think he has that well in hand.

[111]     The total
award for cost of future care is therefore $11,150.

IV.           
SUMMARY

[112]     In
summary, the damages are:

V.             
COSTS

[113]     Mr. Boparai
has had substantial success, so unless there are matters affecting costs of
which I am currently unaware (in which case counsel may arrange to speak to
them) he is entitled to receive his costs at scale B.

The
Honourable Mr. Justice T.A. Schultes