Court of Appeal Decision of the Week

Calculating Loss of Future Earning Capacity for a Young Plaintiff

Case: Layes v. Stevens, 2018 BCCA 415 (CanLII)

Keywords: Loss of Future Earning Capacity; MVA

Synopsis:

The Appellant, Cavelle Layes, is injured in a vehicle driven and owned by the Respondent, Daniel Stevens. Liability is admitted. The trial proceeds as an assessment of damages. Following a 10-day trial, the Trial Judge makes the following awards:

  • $85,000 for non-pecuniary loss;
  • $53,233 for past wage loss;
  • $200,000 for loss of future earning capacity;
  • $61,308 for cost of future care; and
  • $8,741.20 for special damages. (See in Layes v Stevens, 2017 BCSC 895 (CanLII)).

The $200,000 award for loss of future earning capacity is based on the following: the Appellant is in her mid-twenties (and so, does not have a settled pattern of employment), and there are no precise mathematical anchors available for assessing loss of future earning capacity.

The Appellant appeals this award. She argues the Trial Judge erred by:

  • relying on case law instead of the particular facts and evidence in the case; and
  • by awarding just $200,000 for loss of future earning capacity. (Note: the Appellant had asked for between $1,071,255.00 and $1,522,126.00 under this head of damages).

The appeal is dismissed. The Court of Appeal determines the Trial Judge made no error in principle and, in the circumstances of this case, the award is not inordinately low.

Importance:

Citing Woelk v. Halvorson, 1980 CanLII 17 (SCC), the Court of Appeal noted that an assessment of damages is a finding of fact. As such, the applicable standard of review is deferential. (See para. 26).

The Court of Appeal acknowledged the general proposition that “comparator cases do not perform the same useful function as they do in the assessment of non-pecuniary losses” but declined to find the Trial Judge committed any error. (See para. 28). For the Court of Appeal, there were simply no reliable mathematical anchors upon which she could rely

Considering Sinnott v. Boggs, 2007 BCCA 267 (CanLII) and Jurczak v. Mauro, 2013 BCCA 507 the Court of Appeal noted the approach to be taken in circumstances where a young person has not yet established a career and has no settled pattern of employment at the time of their personal injury: “[i]n cases where the future is hard to predict, a global approach to assessing the loss of future earning capacity is preferable.” (See paras. 32-33).

In the present case, the Court of Appeal considered the Trial Judge’s decision in light of the fact that the Appellant was 25 years old, in the final year of her education, and that she had not yet embarked on any particular career. Given her work history, the Court of Appeal found no error in the manner in which the Trial Judge determined the loss of future earning capacity claim. (See para. 34).

With respect to the Appellant’s second ground – that the award was inordinately low – the Court of Appeal stated as follows:

With respect, there is no authority for the proposition that awards for future loss of earning capacity and awards for past wage loss must bear some numerical or directly proportional relationship to each other. In some cases they will, if the relevant facts underlying each head of damages are the same. However, due to the different tests and circumstances involved in each, it is entirely conceivable — and in fact common place — for an award of future loss of capacity to differ markedly from an award of past wage loss. (See para. 37).

For the Court of Appeal, the “key finding” (and one not challenged on Appeal) was that the Appellant can work on a full-time basis. As such, the Court determined there would be “scores of jobs available to her”. (See para. 39).

Counsel for the Appellant: Frank Scordo and Chelsey Tennant (Fulton & Company LLP, Kamloops)

Counsel for the Respondent: Gillian Dougans (FH&P Lawyers LLP, Kelowna)

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Posted: Wednesday, November 14, 2018