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Behavioural Changes and Loss of Capacity

If your personality changes after a crash such that you struggle to hold down a job, are you entitled to compensation for loss of capacity?  What if you hadn’t established a career prior to the crash?

In the recent case Fadai v Cully (2015 BCCA 505) the British Columbia Court of Appeal discussed and ultimately upheld a $250,000 award for loss of capacity.  The plaintiff, Mr. Fadai, was in his early 20s at the time of the 2008 crash and had yet to establish a steady career.  While the plaintiff didn’t have a consistent employment record, he had had some prior success in the field of sales and at the time of the crash was working as a bouncer at a nightclub and for his father’s furniture refinishing business.  After the crash, Mr. Fadai developed difficulties regulating his behaviour and controlling his temper.  A series of incidents of aggression were described at trial, including one in which Mr. Fadai grabbed his employer by the throat and threatened to “knock him out.”  Mr. Fadai’s evidence of his change in temper was corroborated at trial by his friends and family members.  Further, a series of medical experts, including two neurologists, testified in support of the plaintiff’s position.

The defence appealed the trial judge’s decision, arguing that there was insufficient evidence to ground the $250,000 award for loss of capacity.  The appellants put forward a number of arguments on this point, including that the plaintiff’s pre-crash pattern of employment demonstrated a pre-existing degree of impulsivity, and that the evidence did not establish whether his problems with self-control and anger management were new after the crash.  It was further argued that Mr. Fadai and his counsel had not established an impairment of his ability to act as a salesman. The appellants went on to argue that Mr. Fadai’s struggles with reading and other academic skills would impair his ability to progress in his career in any event.  Lastly, the appellants argued that if invested at 2.5%, the capital sum of $250,000 would yield an annual income stream exceeding Mr. Fadai’s 2006 income and roughly analogous to his 2007 income.

Writing for a unanimous court, Justice Finch dismissed the appellants’ points on the insufficiency of evidence and affirmed the holding of the trial judge:

[50]        … [I]t is important to note that the award for loss of future earning capacity was not premised on a finding that the respondent lost the capacity to regularly perform some defined component of his work as a salesperson. Rather, the award for loss of future earning capacity rested on a finding, grounded in the evidence, that the respondent’s disinhibition and incapacity for self-regulation would eventually emerge in the work environment and lead not only to a loss of employment, but challenges in securing employment thereafter.

[56]        I would also reject the appellants’ contention that the trial judge erred by making allowance for the fact that the respondent’s inability to control his temper would probably impair his ability to progress to better paying work that might otherwise have become available to him as he matured and learned new skills. As I understand the appellants’ position on this point, the trial judge ought not to have made allowance for this positive contingency in light of evidence that the respondent was assessed as having reading vocabulary, reading comprehension, verbal comprehension, and reading abilities that put him at the 4th, 3rd, 3rd, and 1st percentile, respectively, when compared to other individuals with similar educational achievements.

[57]        The trial judge expressly noted the respondent’s “very minimal reading ability”, describing it as “a severe pre-existing shortcoming that would inevitably have narrowed his career options”. The trial judge found the respondent would have “no reasonable possibility of future training and advancement if it has anything resembling an academic component to it” (emphasis added). But it cannot be said from this that the trial judge was wrong to take account of the real and substantial possibility the respondent would acquire practical, on-the-job, skills-based sales experience and strategies that would improve his performance and income earning ability over time. Indeed, Future Shop identified the respondent as an individual who would develop his leadership and sales abilities with experience and mentoring.

[58]        The appellants also argue the award is unsupported by the evidence and wholly erroneous because a capital sum of $250,000, invested at 2.5%, yields an annual earnings stream that exceeds the respondent’s 2006 earnings and is roughly analogous to his 2007 earnings. In addition, the appellants note that multiplying the annualized earnings stream by 4.5 (the number of years from the accident to the date of the trial) results in a damages award that is greater than the respondent’s reported earnings over the same period.

[59]        I cannot give effect to the appellants’ argument on this point. It does not take account of three critical considerations: (1) the respondent’s age and long-term potential to earn income as a salesperson; (2) the real and substantial possibility that the respondent’s inability to control his temper will eventually result in job loss in circumstances complicating his ability to secure alternative employment; and (3) the real and substantial possibility that the respondent’s attitudinal disposition will impact his work performance and interfere with his ability to obtain promotions or access better paying jobs that might otherwise have become available to him over time.

[60]        It is trite law that damages are assessed, not calculated: Rosvold v. Dunlop, 2001 BCCA 1 (CanLII) at paras. 10-12 and 18. The trial judge had the difficult task of assessing the extent to which a serious and permanent problem with self-regulation would impair the future earning capacity of a young man who immigrated to Canada when he was 13 years of age, had shown signs of promise in the sales industry, but had not yet established a defined career path.

[61]        In my view, the factual findings made by the trial judge are rooted in and supported by the evidence. His reasons have not been shown to reflect error in principle. The award made for loss of future earning capacity cannot be characterized as unreasonable or wholly erroneous. To the contrary, the trial judge’s approach to the difficult task he faced was detailed, thoughtful and well-reasoned.

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