BC Court of Appeal reduces damages award despite finding actual employment-related impairment

The BC Court of Appeal has reduced an award for loss of future earning capacity, despite finding actual employment-related impairment in a personal injury case.

In Deegan v. L’Heureux, 2023 BCCA 159, the plaintiff, Kylee Dean L’Heureux, was injured in a motor vehicle accident when she was 20. She suffered from anxiety, headaches and chronic pain due to the accident. She sued the defendants, Ross Deegan and Unicorn Trucking Ltd., for substantial damages for her loss of future earning capacity and cost of future care. Following an eight-day “fast track” trial, the judge apportioned liability ten percent to the plaintiff and 90 percent to the defendants.

The defendants appealed the judge’s awards for loss of future earning capacity and cost of future care. They argued that both awards were based on errors of fact and law principally flowing from what they said was an absence of medical evidence of actual employment-related impairment and the need for ongoing chiropractic treatments. The BC Court of Appeal found an adequate evidentiary foundation for the judge to award loss of future earning capacity and cost of future care.

Before the accident, L’Heureux was physically active, worked as a restaurant server, and helped with domestic duties at home. After the accident, she experienced ongoing anxiety, headaches, and neck, shoulders, and upper back pain. She could not engage in employment, household, and recreational activities to the same level as she had before the accident.

L’Heureux found her serving job to be too physically demanding, so she began working as a nanny, but the driving and lifting requirements of her new role eventually aggravated her symptoms. She decided to take an education program to become an administrative assistant, but working continuously on a computer aggravated her neck, shoulder, and upper back pain. After becoming pregnant and giving birth, she planned to open an in-home daycare.

No misapprehension of medical evidence

The defendants asserted that the judge misapprehended the medical evidence and conflated the plaintiff’s chronic pain with impairment of her earning capacity. They argued that there was no medical evidence that the plaintiff would experience a reduction in her ability to earn an income due to her accident-related injuries.

The appeal court was not satisfied that the judge misapprehended the evidence. The appeal court noted that “bad reasons” are not a free-standing ground for appeal. Trial reasons must be read as a whole, functionally, and in the context of the live issues at trial, informed by the parties’ submissions. The court explained that the judge understood the medical evidence and based his finding on a real and substantial possibility of future pecuniary loss on the entire record before him.

The court further found that the judge thoroughly and accurately summarized the expert medical evidence. His findings that the plaintiff had left her waitressing job, and struggled in her work as a nanny, her studies and her work as a receptionist due to her injuries amply supported the conclusion that the plaintiff would not be able to do her work with the same energy, working hours, or potential income. In light of the entire record, the court was satisfied that the judge was entitled to find a real and substantial possibility that the plaintiff’s chronic pain would likely hold her back from working to her total capacity in the future and cause her to suffer a lost income. The judge awarded the plaintiff $250,000 for the loss of future earning capacity.

Unreasonableness of the $250,000 award

Despite finding an adequate evidentiary foundation for the judge to make the awards for loss of future earning capacity and cost of future care, the court found that the record failed to support the judge quantifying the award of loss of future earning capacity at $250,000.

The appeal court noted that the judge lamented the need for more assistance from the parties concerning quantifying the award for loss of future earning capacity. The court found that the judge’s assessment methodology was unclear from his judgment reasons.

The judge applied the capital asset approach to assessing the plaintiff’s loss. The appeal court found that the judge’s award was “at large” or “global” in nature. The court noted that a global approach to assessing the loss of future earning capacity is preferable in cases where the future is hard to predict. However, the award must still be grounded in the evidence.

The judge accepted the plaintiff’s submissions that she should be awarded $250,000 for her loss of future earning capacity. However, the appeal court found that the record did not support the judge’s award. The judge's award did not consider whether the plaintiff’s home was suitable for a daycare or how profitable her daycare would be. The plaintiff did not provide any evidence of her expected lost profit. The judge also did not consider that the plaintiff had found reasonably remunerative employment in an administrative role post-accident, which could potentially affect her earning capacity.

The appeal court said that despite the difficulties associated with valuing the loss of a young plaintiff’s loss of earning capacity and the appropriateness of making “global” awards in such contexts, it is always preferable for trial judges to explain how they arrived at their award transparently. The court ruled that the judge’s reasons were lacking in this case, so it must be set aside. The court reduced the $250,000 award to $70,000.