Focus On

Damages - Types of damages - General damages - For personal injuries - Calculation - Contingencies - Mitigating factors - Considerations - Employment status - Pre-existing medical conditions - Loss of earning capacity -  

Thursday, July 07, 2016 @ 8:00 PM  


Appeal by the defendants, Mendez and Hyland, from a personal injury damages award in favour of the plaintiff, Dunbar. In 2011, the plaintiff, age 27, was injured in a motor vehicle accident. He suffered from a pre-existing degenerative hip condition exacerbated by the accident. The plaintiff experienced ongoing back problems. He was able to continue full-time employment as a steel fabricator, albeit with considerable accommodation from his employer to cope with the limitations caused by his injuries. There was no dispute that the plaintiff was competitively unemployable as a steel fabricator. There was vocational evidence indicating he was able to retrain and work in other employment if necessary. The trial judge concluded that the plaintiff demonstrated a real and substantial possibility of a loss of future earning capacity. The plaintiff’s loss was quantified at $400,000 using the capital asset approach, representing a loss of $20,000 per year until the plaintiff’s intended retirement at age 55. The defendants appealed on the basis the award was inordinately high.

HELD: Appeal allowed in part. The assessment of the plaintiff’s loss of future earning capacity at $400,000, in light of the evidence at trial, was inordinately high. The trial judge was not provided with evidence of economic or labour market statistics that would have assisted in estimating the plaintiff’s future stream of income as a steel fabricator, taking into account negative and positive contingencies bearing on his occupation and his pre-existing hip problem. Nor was the judge provided with economic evidence of the plaintiff’s residual earning capacity in the event he retrained in another suitable vocation. There was, however, sufficient evidence in support of certain findings of fact related to the plaintiff’s ability to continue working as a steel fabricator, his competitive unemployability, and the likelihood of a future hip replacement. Given the contingencies arising from the evidence, and the evidence the plaintiff suffered a substantial loss, it was appropriate and reasonable to set aside the trial award and replace it with an award of $250,000. The remainder of the award was affirmed.