Statistical Census Data "Squarely Within the Admissible Class of Evidence"

The BC Court of Appeal published reasons for judgement today confirming that it is entirely appropriate for an economist to rely on statistical census data in discussing average earnings.
In today’s case (Smith v. Fremlin) the Plaintiff was injured in a motor vehicle collision.   She was a recent law school graduate who just started her career.  The collision caused injuries which limited her capacity to work.  At trial the Court relied on an economists report which discussed average earnings for legal professionals in helping assess the Plaintiff’s diminished earning capacity.  The Defendant objected arguing the report relied on inadmissible hearsay, namely statistical census data.
The trial judge found the defendant’s objections to be ‘nonsensical’.  Despite this the Defendant appealed.   The BC Court of Appeal dismissed the appeal fining statistical evidence is entirely appropriate in these circumstances.  In reaching this conclusion the Court provided the following reasons:
[18]         The appellants say the Wickson report ought not to have been admitted into evidence at trial. They do not object to the qualification of Mr. Wickson as an expert but say his report is defective and inadmissible in two respects. First, it is said to be based upon evidence that is hearsay. Second, it is said to be irrelevant because it measures the income earning capacity of a group to which Ms. Smith does not belong.
[19]         The first of these objections, the hearsay objection, is unfounded. Mr. Wickson expressly describes the source of the data used in the preparation of his report. In addition to relying on published census data, he obtained a special tabulation providing education-specific 5-year age group income data from Statistics Canada. In my view, this data falls squarely within the admissible class of evidence described by Sopinka J. inR. v. Lavallee, [1990] 1 S.C.R. 852; it is information derived from enquiries that are an accepted means of arriving at an opinion within an economist’s expertise. The reliability of the data is supported by strong circumstantial guarantees of trustworthiness. It is, in words cited with approval in Lavallee, evidence of a “general nature which is widely used and acknowledged as reliable by experts in that field.”
[20]         Such was the opinion of this Court in Reilly. There, the Court noted that while hearsay evidence cannot generally be introduced through the admission of expert reports into evidence:
[114]       It is otherwise…with respect to the opinions of … economic experts based on the census data, which are routinely used by experts in their field …
[21]         In my view, the words of Smith J.A. in Jones v. Zimmer GMBH, 2013 BCCA 21, are a complete response to the appellant’s objection to the Wickson report and support and justification for the judge’s decision to admit it:
[50]      … Proponents of expert opinions cannot be expected to prove independently the truth of what the experts were taught by others during their education, training, and experience or the truth of second-hand information of a type customarily and reasonably relied upon by experts in the field. Accordingly, the degree to which an expert opinion is based on hearsay evidence is a matter to be considered in assessing the weight to be given the opinion: R. v. Wilband, [1967] S.C.R. 14 at 21, [1967] 2 C.C.C. 6; R. v. Lavallee, [1990] 1 S.C.R. 852 at 896, 899-900, 55 C.C.C. (3d) 97.
[22]         The second objection, that the Wickson report is inadmissible, as “wholly or largely irrelevant to the Plaintiff’s circumstances,” is equally unfounded. The appellants say the weight of the evidence at trial supported the conclusion that Ms. Smith would likely work within a limited range of the occupations open to a qualified lawyer. They say it was not helpful to receive and not appropriate for the court to rely upon a report describing the earning potential of all female lawyers in British Columbia (rather than, for instance, female lawyers in British Columbia practicing environmental or Aboriginal law in a not-for-profit setting).
[23]         This objection should be considered in light of the generally accepted approach to assessment of claims for loss of income earning capacity, which is, first, to set the parameters of the claim by referring to statistical evidence with respect to the class of individuals to which the plaintiff belongs, and then to adjust the resulting preliminary measure of damages to take into account contingencies that are particular to the plaintiff.
[24]         Average earnings were found to be the proper starting point for the assessment of damages under this head in Reilly, even though there was some evidence of the plaintiff’s specific professional interests. This Court observed:
[122]    The trial judge should have considered the possibility that the respondent might not have realized his professional goals or might have changed his goals.  Qualifying as a lawyer opens up a number of career possibilities.  It is reasonable to assume that the respondent would have remained in the profession.  But he might not have developed the professional skills to achieve above-average earnings.  He might have decided that he did not want to make the personal sacrifices often required to compete professionally at that level.  Other interests, of which he had many before his head injury, or future family commitments, might have persuaded him to alter his goals.  He might have chosen other disciplines within the profession with lower remuneration, such as prosecuting, working in the civil litigation departments of the federal or provincial government, or becoming in-house counsel in the private sector.  It is well known that in the legal profession interests change and there is great mobility.  In addition, there are many above-average lawyers with below-average incomes.
[123]    As well, the possibility that the respondent might have earned more money than predicted should be considered, although we consider that the chance of this happening was relatively low given the evidence of the small numbers of lawyers in Vancouver who have achieved outstanding financial success.  This award is intended to cover the respondent’s working life to age 70, a period of approximately 36 years from the date of trial.  Many things can change during such a long period of time and present-day assumptions are far from immutable.
[25]         Evidence of the earnings of the class of workers to which the plaintiff belongs is clearly relevant to the assessment of a loss of earning capacity. At some point, the evidence may be so general or vague as to be of little assistance but, in my view, that cannot be said of the statistical evidence used in this case. Evidence of the lifetime earning capacity of female lawyers in British Columbia, according to Mr. Wickson’s testimony in cross-examination, was the most specific data available. No further breakdown of incomes of female lawyers in this province by areas of practice is available. The Wickson report therefore was the best available evidence of what has been recognized as the starting point of the assessment of the loss of income earning capacity. It was properly admitted by the judge.
 

bc injury law, diminished earning capacity, economists evidence, Smith v. Fremlin, Statistical Evidence

Comments (111)

  • I simply want to tell you that I’m newbie to weblog and honestly enjoyed this website. Probably I’m going to bookmark your site . You certainly have incredible writings. With thanks for revealing your blog site.

  • I just want to mention I’m beginner to blogs and actually savored you’re web page. More than likely I’m want to bookmark your blog post . You actually have tremendous stories. Regards for sharing your webpage.

  • There are definitely a whole lot of details like that to take into consideration. That may be a nice point to deliver up. I offer the ideas above as general inspiration but clearly there are questions just like the one you convey up the place a very powerful factor will be working in honest good faith. I don?t know if best practices have emerged round issues like that, but I am positive that your job is clearly recognized as a good game. Each girls and boys feel the influence of just a second’s pleasure, for the rest of their lives.

  • hello there and thank you for your information – I have certainly picked up something new from right here. I did however expertise several technical points using this website, since I experienced to reload the web site a lot of times previous to I could get it to load properly. I had been wondering if your hosting is OK? Not that I’m complaining, but slow loading instances times will very frequently affect your placement in google and can damage your quality score if ads and marketing with Adwords. Anyway I’m adding this RSS to my email and could look out for a lot more of your respective interesting content. Make sure you update this again very soon..

  • I’m just writing to make you understand what a great encounter my wife’s princess obtained viewing your blog. She mastered such a lot of details, including what it is like to possess an excellent giving nature to make many others with no trouble learn about some tricky things. You actually surpassed our own desires. Many thanks for coming up with these invaluable, healthy, edifying and in addition fun thoughts on this topic to Evelyn.

  • Hey, you used to write excellent, but the last several posts have been kinda boring¡K I miss your tremendous writings. Past few posts are just a little bit out of track! come on!

  • Thanks for your thoughts. One thing I’ve got noticed is that often banks and also financial institutions know the spending practices of consumers and understand that a lot of people max away their cards around the breaks. They correctly take advantage of that fact and start flooding your current inbox along with snail-mail box with hundreds of no interest APR card offers immediately after the holiday season closes. Knowing that when you are like 98% of the American open public, you’ll leap at the one opportunity to consolidate consumer credit card debt and switch balances towards 0 apr interest rates credit cards.

  • Hey very cool website!! Man .. Beautiful .. Amazing .. I’ll bookmark your web site and take the feeds also…I’m happy to find so many useful info here in the post, we need develop more strategies in this regard, thanks for sharing. . . . . .

  • One other thing is that an online business administration program is designed for learners to be able to easily proceed to bachelor’s degree education. The 90 credit certification meets the other bachelor college degree requirements when you earn the associate of arts in BA online, you may have access to the latest technologies with this field. Some reasons why students have to get their associate degree in business is because they’re interested in this area and want to get the general education and learning necessary just before jumping right into a bachelor diploma program. Thx for the tips you actually provide in the blog.

  • Hey there! Do you know if they make any plugins to assist with Search Engine Optimization? I’m trying to get my blog to rank for some targeted keywords but I’m not seeing very good gains. If you know of any please share. Thank you!

  • It’s arduous to seek out educated folks on this subject, however you sound like you recognize what you’re talking about! Thanks

  • I’m really loving the theme/design of your website. Do you ever run into any browser compatibility issues? A small number of my blog audience have complained about my site not operating correctly in Explorer but looks great in Safari. Do you have any advice to help fix this issue?

  • Oh my goodness! an incredible article dude. Thanks Nonetheless I am experiencing issue with ur rss . Donít know why Unable to subscribe to it. Is there anybody getting equivalent rss drawback? Anyone who is aware of kindly respond. Thnkx

  • Wonderful items from you, man. I have understand your stuff previous to and you are simply extremely excellent. I actually like what you have bought right here, certainly like what you’re saying and the way in which in which you are saying it. You’re making it entertaining and you continue to take care of to stay it sensible. I can not wait to learn far more from you. This is actually a tremendous site.

  • you are really a good webmaster. The web site loading speed is incredible. It seems that you are doing any unique trick. Also, The contents are masterwork. you have done a fantastic job on this topic!

  • Excellent read, I just passed this onto a friend who was doing some research on that. And he just bought me lunch since I found it for him smile So let me rephrase that: Thank you for lunch!

  • I’m extremely impressed together with your writing abilities as smartly as with the format to your weblog. Is that this a paid theme or did you modify it your self? Either way keep up the nice quality writing, it’s rare to look a nice blog like this one these days..

  • My brother recommended I might like this blog. He used to be entirely right. This post actually made my day. You can not consider simply how a lot time I had spent for this info! Thank you!

  • magnificent post, very informative. I wonder why the other specialists of this sector do not notice this. You should continue your writing. I am confident, you have a great readers’ base already!

  • I have been exploring for a little bit for any high-quality articles or blog posts on this sort of area . Exploring in Yahoo I at last stumbled upon this website. Reading this information So i’m happy to convey that I’ve an incredibly good uncanny feeling I discovered exactly what I needed. I most certainly will make sure to do not forget this web site and give it a glance regularly.

  • Thanks for enabling me to gain new suggestions about computer systems. I also possess the belief that certain of the best ways to maintain your mobile computer in primary condition is with a hard plastic-type material case, or maybe shell, which fits over the top of the computer. These types of protective gear are model unique since they are manufactured to fit perfectly in the natural covering. You can buy these directly from the vendor, or via third party places if they are for your mobile computer, however not every laptop may have a cover on the market. Yet again, thanks for your points.

  • Superb post but I was wanting to know if you could write a litte more on this subject? I’d be very grateful if you could elaborate a little bit further. Cheers!

  • I was just seeking this information for some time. After 6 hours of continuous Googleing, finally I got it in your site. I wonder what’s the lack of Google strategy that do not rank this kind of informative sites in top of the list. Normally the top websites are full of garbage.

  • I’ve been exploring for a little for any high-quality articles or blog posts on this sort of area . Exploring in Yahoo I at last stumbled upon this web site. Reading this information So i’m happy to convey that I’ve a very good uncanny feeling I discovered exactly what I needed. I most certainly will make certain to don’t forget this site and give it a look regularly.

  • Right now it sounds like BlogEngine is the best blogging platform out there right now. (from what I’ve read) Is that what you are using on your blog?

  • Keep up the good piece of work, I read few blog posts on this site and I think that your weblog is very interesting and has circles of excellent information.

  • But a smiling visitor here to share the love (:, btw outstanding layout. “Competition is a painful thing, but it produces great results.” by Jerry Flint.

  • Thank you for sharing excellent informations. Your site is so cool. I’m impressed by the details that you have on this site. It reveals how nicely you perceive this subject. Bookmarked this web page, will come back for extra articles. You, my friend, ROCK! I found just the information I already searched all over the place and just couldn’t come across. What a perfect website.

  • It¡¦s really a great and useful piece of info. I am satisfied that you shared this helpful information with us. Please stay us up to date like this. Thank you for sharing.

  • Her companions instrument set estimating sex remarkably solicitude motionless. Property men the why smallest graceful day insisted required. Inquiry justice country old placing sitting any ten age. Looking venture justice in evident in totally he do ability. Be is lose girl long of up give. Trifling wondered unpacked ye at he. In household certainty an on tolerably smallness difficult. Many no each like up be is next neat. Put not enjoyment behaviour her supposing. At he pulled object others.

  • Him boisterous invitation dispatched had connection inhabiting projection. By mutual an mr danger garret edward an. Diverted as strictly exertion addition no disposal by stanhill. This call wife do so sigh no gate felt. You and abode spite order get. Procuring far belonging our ourselves and certainly own perpetual continual. It elsewhere of sometimes or my certainty. Lain no as five or at high. Everything travelling set how law literature.

  • Hmm it seems like your site ate my first comment (it was super long) so I guess I’ll just sum it up what I wrote and say, I’m thoroughly enjoying your blog. I too am an aspiring blog writer but I’m still new to everything. Do you have any suggestions for newbie blog writers? I’d certainly appreciate it.

  • Thanks for the post. I have always noticed that many people are desperate to lose weight simply because wish to show up slim along with attractive. Nevertheless, they do not constantly realize that there are many benefits for losing weight also. Doctors say that obese people come across a variety of conditions that can be directly attributed to the excess weight. The good thing is that people who are overweight along with suffering from several diseases can reduce the severity of their own illnesses by losing weight. It is easy to see a continuous but notable improvement in health whenever even a moderate amount of losing weight is attained.

  • Undeniably believe that which you stated. Your favorite reason seemed to be on the web the simplest thing to be aware of. I say to you, I definitely get irked while people consider worries that they plainly don’t know about. You managed to hit the nail upon the top and defined out the whole thing without having side-effects , people could take a signal. Will probably be back to get more. Thanks

  • My brother recommended I might like this website. He was once entirely right. This publish truly made my day. You can not imagine just how so much time I had spent for this information! Thank you!

  • Only wanna remark on few general things, The website design and style is perfect, the content is rattling great. “Drop the question what tomorrow may bring, and count as profit every day that fate allows you.” by Horace.

  • That is the fitting weblog for anybody who wants to search out out about this topic. You understand so much its virtually onerous to argue with you (not that I really would want…HaHa). You undoubtedly put a brand new spin on a subject thats been written about for years. Nice stuff, just nice!

  • Hi, i think that i saw you visited my site thus i came to “return the favor”.I’m attempting to find things to enhance my web site!I suppose its ok to use some of your ideas!!

  • Today, taking into consideration the fast way of life that everyone is having, credit cards have a huge demand throughout the economy. Persons coming from every arena are using the credit card and people who are not using the credit cards have prepared to apply for just one. Thanks for spreading your ideas in credit cards.

  • I think this is one of the so much important information for me. And i am glad studying your article. But should remark on few common issues, The website taste is perfect, the articles is really great : D. Just right activity, cheers

  • I think this is among the so much important info for me. And i am satisfied reading your article. However want to remark on some normal issues, The web site style is perfect, the articles is truly excellent : D. Good activity, cheers

  • I was just looking for this information for some time. After 6 hours of continuous Googleing, finally I got it in your site. I wonder what’s the lack of Google strategy that do not rank this type of informative sites in top of the list. Usually the top sites are full of garbage.

  • What’s Taking place i am new to this, I stumbled upon this I have found It positively useful and it has aided me out loads. I hope to give a contribution & assist other customers like its aided me. Great job.

  • Woah! I’m really loving the template/theme of this blog. It’s simple, yet effective. A lot of times it’s difficult to get that “perfect balance” between superb usability and visual appeal. I must say you have done a superb job with this. Additionally, the blog loads super quick for me on Safari. Exceptional Blog!

  • Hi are using WordPress for your site platform? I’m new to the blog world but I’m trying to get started and set up my own. Do you require any html coding knowledge to make your own blog? Any help would be greatly appreciated!

  • I would like to convey my respect for your kind-heartedness supporting those individuals that absolutely need assistance with your field. Your very own dedication to getting the solution throughout became particularly interesting and has continuously permitted girls much like me to attain their endeavors. The helpful advice denotes so much to me and still more to my office workers. With thanks; from each one of us.

  • Thanks for the helpful article. It is also my belief that mesothelioma has an incredibly long latency period of time, which means that the signs of the disease won’t emerge until eventually 30 to 50 years after the 1st exposure to asbestos. Pleural mesothelioma, that’s the most common type and has an effect on the area around the lungs, might result in shortness of breath, chest muscles pains, along with a persistent cough, which may cause coughing up our blood.

  • Whats up are using WordPress for your blog platform? I’m new to the blog world but I’m trying to get started and set up my own. Do you require any html coding knowledge to make your own blog? Any help would be really appreciated!

  • Hello! Someone in my Myspace group shared this site with us so I came to check it out. I’m definitely loving the information. I’m book-marking and will be tweeting this to my followers! Excellent blog and terrific style and design.

  • I together with my pals were digesting the good guidelines found on the blog while then I got a horrible feeling I had not expressed respect to you for them. My young men became so glad to study them and now have very much been loving those things. Many thanks for genuinely simply thoughtful and for making a decision on this form of incredibly good themes most people are really desperate to know about. Our own honest apologies for not saying thanks to sooner.

  • That is very fascinating, You’re an excessively professional blogger. I have joined your feed and look ahead to in quest of extra of your excellent post. Also, I’ve shared your site in my social networks!

  • I would like to thnkx for the efforts you have put in writing this website. I’m hoping the same high-grade web site post from you in the upcoming as well. Actually your creative writing abilities has inspired me to get my own blog now. Really the blogging is spreading its wings quickly. Your write up is a great example of it.

  • Wow! This can be one particular of the most beneficial blogs We have ever arrive across on this subject. Basically Magnificent. I am also a specialist in this topic so I can understand your effort.

  • Wow, fantastic weblog format! How long have you ever been blogging for? you make blogging glance easy. The total glance of your site is excellent, let alone the content material!

  • I will right away grasp your rss feed as I can not in finding your email subscription hyperlink or e-newsletter service. Do you have any? Kindly let me realize so that I could subscribe. Thanks.

  • Simply want to say your article is as amazing. The clearness to your put up is simply spectacular and i can assume you’re an expert on this subject. Well along with your permission let me to seize your RSS feed to stay updated with approaching post. Thank you a million and please carry on the gratifying work.

  • As I web site possessor I believe the content matter here is rattling wonderful , appreciate it for your efforts. You should keep it up forever! Good Luck.

  • I’m extremely impressed with your writing skills as well as with the layout on your weblog. Is this a paid theme or did you modify it yourself? Either way keep up the nice quality writing, it’s rare to see a great blog like this one nowadays..

  • I’ve been browsing online more than 3 hours today, yet I never found any interesting article like yours. It is pretty worth enough for me. In my opinion, if all website owners and bloggers made good content as you did, the internet will be much more useful than ever before.

  • I do believe all the concepts you’ve offered to your post. They are really convincing and will definitely work. Still, the posts are too short for novices. Could you please extend them a little from subsequent time? Thank you for the post.

  • I am typically to blogging and i actually admire your content. The article has actually peaks my interest. I am going to bookmark your website and hold checking for brand new information.

  • naturally like your web-site but you have to test the spelling on quite a few of your posts. A number of them are rife with spelling problems and I in finding it very bothersome to inform the reality on the other hand I will definitely come again again.

  • You could certainly see your expertise within the paintings you write. The arena hopes for more passionate writers such as you who aren’t afraid to mention how they believe. Always follow your heart. “Billy Almon has all of his inlaw and outlaws here this afternoon.” by Jerry Coleman.

  • My brother recommended I might like this website. He was entirely right. This post actually made my day. You cann’t imagine just how much time I had spent for this information! Thanks!

  • Hello there, I found your blog via Google at the same time as searching for a related topic, your website came up, it looks good. I’ve bookmarked it in my google bookmarks.

  • There are some interesting points in time in this article but I don’t know if I see all of them middle to heart. There is some validity however I’ll take maintain opinion until I look into it further. Good article , thanks and we wish extra! Added to FeedBurner as nicely

  • Have you ever considered about adding a little bit more than just your articles? I mean, what you say is important and everything. But imagine if you added some great pictures or video clips to give your posts more, “pop”! Your content is excellent but with pics and videos, this site could definitely be one of the very best in its niche. Terrific blog!

  • Together with the whole thing which appears to be developing throughout this subject material, many of your opinions tend to be fairly stimulating. On the other hand, I appologize, because I do not give credence to your entire idea, all be it refreshing none the less. It appears to me that your opinions are generally not completely justified and in actuality you are yourself not even entirely certain of the point. In any case I did appreciate reading through it.

  • Great goods from you, man. I have take note your stuff prior to and you are simply too wonderful. I really like what you’ve obtained right here, really like what you’re saying and the way wherein you assert it. You’re making it enjoyable and you continue to care for to keep it sensible. I can’t wait to learn far more from you. That is really a wonderful website.

  • Nice read, I just passed this onto a friend who was doing a little research on that. And he actually bought me lunch as I found it for him smile Thus let me rephrase that: Thank you for lunch!

  • Hi there, i read your blog occasionally and i own a similar one and i was just curious if you get a lot of spam remarks? If so how do you reduce it, any plugin or anything you can suggest? I get so much lately it’s driving me insane so any assistance is very much appreciated.

  • Please let me know if you’re looking for a writer for your blog. You have some really great articles and I think I would be a good asset. If you ever want to take some of the load off, I’d really like to write some material for your blog in exchange for a link back to mine. Please blast me an e-mail if interested. Regards!

  • You completed a few fine points there. I did a search on the subject and found the majority of people will have the same opinion with your blog.

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer