Several scenarios showed real and substantial likelihood of future loss of earnings
A crane operator who was seriously injured in a dirt bike accident has been awarded $1.3 million in damages by the British Columbia Supreme Court, despite earning more income after the accident than he did before it.
In Jackson v. Lindsay, 2022 BCSC 793, Cody Jackson was riding his dirt bike on an unpaved road in Mara, BC, when he drove into a heavy metal link chain that had been strung across the road between a telephone pole on one side and a large tree on the other side. The collision resulted two broken arms, a shattered pelvis, a cracked eye socket, a concussion, and nerve damage to his right leg. At the time of the accident, Jackson was 26 years old and worked as a journeyman crane operator on the west coast for Fraser River Pile & Dredge Inc. (FRPD).
Due to his injuries, Jackson lost his job with FRPD. His long-term relationship with his partner also ended as a direct consequence of the accident. An independent medical examination also found that most of his injuries were permanent and he suffered from concussion and cognitive problems that would persist indefinitely.
Friends and relatives described Jackson as previously happy, positive, social, and energetic. He was athletic and had a great deal of physical stamina. However, after the accident, he became isolated, distant, and difficult to communicate with. He lacked confidence in physical activities that he used to enjoy pre-accident, such as snowmobiling, hunting, and dirt biking.
While Jackson was able to establish past loss of earnings, the court found that he had been earning more after the accident than he had before the accident. A year after the collision, Jackson eventually found employment in a plant in Kitimat, BC. He was promoted to the position of crane foreman, with an increase in pay from what he had earned with FRPD.
The case of Rab v. Prescott, 2021 BCCA 345, where the evidence indicated no loss of income at the time of trial, established a three-step process in assessing claims for loss of future earning capacity. The first was whether the evidence disclosed a potential future event that could lead to a loss of capacity. The second was whether, on the evidence, there was a real and substantial possibility that the future event in question would cause a pecuniary loss. If such a real and substantial possibility existed, the third step was to assess the value of that possible future loss, which must include assessing the relative likelihood of the possibility occurring.
In this case, the court found several scenarios that presented a real and substantial likelihood of future loss of earnings, such as an increased risk of unemployment due to a diminished capacity for taking all jobs that would otherwise be available to Jackson, interruption to his work due to the need for surgery and rehabilitation, early retirement, and reduced chances of job promotion due to mood, personality, and cognitive changes.
The court said that these scenarios were not mutually exclusive and could occur in some combination. The court further said that if Jackson was forced to retire at the age of 45, his lifetime loss would be approximately $1.5 million. If he were forced to change jobs, but the new job paid half of his current income, the loss would be about $800,000. If he suffered from a combination of increased unemployment, loss of work due to surgery, and reduced earnings after surgery, it would result in loss of earnings that would greatly exceed $1 million, said the court.
Given the possible scenarios, and the magnitudes of the losses that could realistically occur, the court assessed Jackson’s loss of future earning capacity in the sum of $800,000. The court also found it proper to award Jackson for past loss of earning capacity, non-pecuniary damages, costs of future care, and special damages, creating a total award of approximately $1.3 million.
