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$400,000 Loss of Earning Capacity Award Plucked from Thin Air


An award for personal injury losses requires a trial judge, orally or in writing, to provide adequate reasons justifying the award. However this was not done in the following case, illustrating the real prejudice inadequate reasons can pose to innocent personal injury claimants.
The injury claimant, riding as a front seat passenger had her feet hanging out of the window and was wearing no seat belt. Not surprisingly she was ejected from the van when it veered across a road, careened over a steep embankment, crossing and the stopping at Main Street (Schenker v. Scott,2014 BCCA 203). The trial judge found the appellant at fault for the accident but rejected the defence that the claimant was neglect in failing to wear a seatbelt. The injury claimant was awarded $150,000for pain and suffering, $400,000 for loss of future earning capacity, $15,000 for loss of housekeeping capacity, $80,000 for future care costs, $5,000 for past loss of wages, and out of pocket expenses of $3,411.95.
The defendant appealed the conclusion that she was at fault for the accident, alleged that the fact that the claimant was not wearing a seat belt means she was at fault for her injury, and claimed the personal injury award itself was much too high.
The appeal of the finding of fault was dismissed as it was correct for the trial judge to have concluded that the defendant’s van gradually drifting into the fast lane before making a sudden swerving turn to the right.  With respect to the use of the seat belt, given the mechanics of the accident and the nature of the injuries suffered, this is not a case where a seatbelt defence could be made out by relying on just common sense.
All of the awards were found to be appropriate with the exception of  the award of $400,000 for loss of earning capacity.  The Court of Appeal had these comments:

[55]         With respect, it is impossible to discern the basis of the judge’s assessment of damages at $400,000. There is no clear analysis of whether Ms. Schenker proved a substantial possibility of future income loss derived from her diminished marketability. There is no explicit analysis of the general level of earnings Ms. Schenker would have realistically achieved, but for the accident, taking into account her intentions and the probabilities of achieving them. There is no projection of her likely earnings taking into account her injuries and other relevant contingencies.

[56]         Although the judge did make findings on a number of relevant matters, she did not apply those findings in a reasoned analysis to explain and justify the award. Rather, she appears to have plucked a number from the air leaving the Court and the parties to speculate on the basis for the award. The only rationale offered is a testing of the award’s reasonableness against somewhat similar cases. As this Court has observed in Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 32, comparator cases are of “limited utility” in assessing damages for awards of future loss.

[57]         In my view, the trial judge failed to provide adequate reasons justifying her award, misapprehended material evidence bearing on a fair award, and made an award that cannot be supported by the findings of fact she made. In the result, I am satisfied that the judge’s failure to analyze the evidence (including the economic evidence), assess probabilities and the implications of her findings of fact to the assessment of Ms. Schenker’s pecuniary loss were errors of principle which resulted in a wholly erroneous estimate of the damages.

[58]         For the reasons that follow, I find this Court is, however, in a position to substitute an award and that this aspect of the case does not need to be remitted back to trial. I would allow the appeal on this issue and order that Ms. Schenker receive $225,000 for her lost earning capacity.

Had the trial judge provided adequate reasons justifying the award of $400,000 there may have been no appeal.  Watch our short video to learn more about why the Court of Appeal reduces personal injury awards in BC:

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

Tags: At Fault, contributory negligence, Failure to wear seat belt, loss of earning capacity, Loss of Income, Use of Seatbelt

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