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Young Plaintiff Awarded Nothing for Loss of Capacity

I’m a young person with mild symptoms, but I worry about how they’ll affect my career.  Will I be awarded for a loss of future earnings?

In a recent decision, the Court of Appeal upheld a trial court’s decision not to award a young woman injured in car crash anything for loss of capacity to earn income (Leong v Besic 2016 BCCA 485).  The plaintiff had argued that her graduation from university was delayed, and that her capacity to work at all types of employment in the future was reduced.  The trial judge, Justice Griffin, had noted that while the plaintiff had experienced some pain with long hours studying during university, the evidence regarding how this affected her education was very vague (trial reasons indexed at 2015 BCSC 2256).  Justice Griffin concluded that she was not persuaded that the plaintiff’s injuries had actually affected her education in any real way.

Regarding the impact the plaintiff’s injuries might have on her future employment, Justice Griffin found no evidence on which to base the plaintiff’s claim.  The plaintiff was yet undecided about what field to enter into, having recently finished university at the time of trial.  While she said she had lost some time at work due to her pain, no detail was provided as to how her pain had impacted her ability to work.  The plaintiff medical expert had provided some minimal support for the plaintiff’s limitations, but his opinions were given little weight at trial as the plaintiff’s counsel failed to lead in evidence all of the historical facts the expert had based his opinion on.  Accordingly, Justice Griffin dismissed the plaintiff’s loss of earning capacity claim.

The plaintiff appealed the decision, but the Court of Appeal was unanimous in upholding the decision of Justice Griffin:

[17]        Finally, Ms. Leong argues that the trial judge erred in rejecting her claim for loss of earning capacity. Ms. Leong submits that the trial judge erred in failing to follow the approach in Sinnott v. Boggs, 2007 BCCA 267. She argues that because she is a young person who has not yet established a career and has no settled pattern of employment, the quantification is broader and larger. She argues that there was evidence that she had ongoing symptoms that might possibly limit her ability to engage in vocations that would require lifting or prolonged use of her arms.

[18]        She submits that she should receive an award in the range of $30-100,000, although she seeks $100,000 in her prayer for relief.

[19]        The trial judge gave comprehensive and thorough reasons on the issue of loss of earning capacity. The trial judge considered Ms. Leong’s age, and the fact that she had not settled into a career path, and that her claim should not be prejudiced by a lack of employment history. However, the trial judge concluded at para. 104 that the evidence did not “support a conclusion that there is a real and substantial possibility that the plaintiff is less capable overall from earning income in all kinds of employment, unable to work in jobs that were previously open to her, less marketable to employers, and less valuable as an employee due to her injuries”.

[20]        The words of Skolrood J. in Nair at para. 97 are apposite:

[I]n order to establish the requisite real and substantial possibility of a diminishment in earning capacity, there must be an evidentiary base that goes beyond mere speculation on the part of the plaintiff. There is no such evidence in this case, and accordingly, I find that Ms. Nair is not entitled to damages under this head.

[21]        Similarly, in this case, there is no evidence or opinion from any of the medical experts to the effect that Ms. Leong’s conditions and symptoms reduced her earning potential. At around the trial, Ms. Leong began to look at retraining as a nurse or in a sonography program, but thought that she might have trouble lifting her arms for long periods or lifting patients. As noted, there is no medical evidence supporting this concern in terms of her ability to work.

[22]        The trial judge, in my view, committed no overriding or palpable error in concluding that there was insufficient evidence to demonstrate a loss of earning capacity.

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