BC Court of Appeal overturns denial of future income loss damages to cyclist injured in an accident

The BC Court of Appeal has overturned a decision denying damages for future loss of earning capacity following a bicycle accident that resulted in a wrist injury.

In Charters v. Jordan, 2024 BCCA 351, Jolene-Ann Charters was struck by a parked car door while cycling in Vancouver. She was thrown from her bike and landed on her left side, fracturing her right wrist. Charters reported ongoing pain in her wrist, which she argued interfered with her ability to work. She had previously worked as a baker, server, painter, and care aide, but after the accident, she testified that her wrist issues caused fatigue and discomfort, affecting her job performance.

At trial, the judge awarded Charters $70,000 in non-pecuniary damages, $5,000 for past loss of income, and smaller amounts for special damages and future care costs. However, the trial judge denied her claim for future income loss, ruling that her injury did not create a “real and substantial possibility” of future financial harm. This conclusion was based on findings that Charters had continued to work successfully in various roles, despite some discomfort.

Charters appealed, arguing that the judge made a palpable and overriding error in fact and law. She claimed that the trial judge disregarded her testimony about declining extra work hours due to wrist pain, focusing instead on her employer’s testimony that she turned down additional work due to school and part-time serving duties. Charters also claimed the judge misapplied the legal test for determining future earning capacity.

Justice Abrioux, dissenting from the majority, upheld the trial judge’s decision. He found no palpable or overriding error in the analysis. He confirmed that the legal framework for assessing loss of future earning capacity was correctly applied.

Justice Horsman, writing for the majority, agreed that the trial judge had correctly summarized the legal framework but failed in its application. She emphasized that proving an impaired capacity does not automatically demonstrate a real and substantial risk of future income loss. Instead, a thorough assessment of how the plaintiff's capacity might affect their work prospects over their remaining career is required.

Justice Horsman highlighted that while Charters had managed her pain and modifications pre-trial, the analysis did not sufficiently consider the long-term implications. The judge's reliance on her pre-trial ability to work without income loss did not address whether the pain and limitations might diminish her future work potential as she aged. The court stressed that hypothetical future events need only be shown as real and substantial, not speculative, a standard not met by the trial judge’s findings.

The court found ample evidence of persistent wrist pain that required job modifications and limited Charters from performing heavy strength work. The ongoing nature of her pain suggested a real risk that her capacity would decrease over time, potentially leading to fewer working hours or job changes. Ultimately, the court allowed the appeal, substituting $80,000 in damages for future loss of earning capacity in place of the trial court’s award of $0.

Editor's Note: This article was corrected to clarify that the appeal was allowed, not dismissed. A previous version mistook the minority decision for the majority decision.