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TYPES OF DAMAGES - For personal injuries - Duration of loss - Extent of incapacity

Tuesday, July 06, 2021 @ 5:43 AM  

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Appeal by the plaintiff from the assessment of damages for injuries suffered in a 2016 motor vehicle accident. The appellant, then a 24-year-old very athletic young man, suffered a serious concussion leading to mild traumatic brain injury and chronic post-concussion syndrome and soft tissue injuries. Prior to the accident, he had suffered concussions playing ice hockey at an elite level. None of the hockey concussions happened after the appellant stopped playing elite competitive hockey at age 21. Six months before the collision, he suffered another concussion while skiing. He made significant recovery by the time of the collision. By the time of his 2019 trial, he was not even close to recovery from the head injury he suffered in the collision. He remained unable to work and unable to participate in any of his athletic pursuits. The trial judge applied a 30 per cent reduction to non-pecuniary damages, past wage loss, loss of future earning capacity and future care costs. The judge found that in his pre-accident state, the appellant was at risk because of his lifestyle and history, to suffer a concussion with serious consequences within one to three years of the skiing concussion in any event. The appellant disputed the judge’s contingency deductions and the award of $300,000 for loss of future earning capacity prior to deduction.

HELD: Appeal allowed. While a contingency deduction was in order, the judge erred in failing to undertake a meaningful analysis of the relative likelihood of a concussion occurring to arrive at an appropriate contingency deduction. The resulting deduction was unsustainably high. The proposition that the appellant suffered these concussions approximately once per year from the age 16 rested on shaky ground. The proposition that the appellant suffered, on average, one serious concussion resulting in a loss of consciousness every two years between 2007 and 2015 was unsupported by the evidence. The judgment addressed the real and substantial possibility analysis only implicitly and was silent on the relative likelihood. While it was open to the judge to conclude that there was a real and substantial possibility that this appellant would suffer a head injury in the future that would result in serious post-concussive symptoms, it was impossible to discern how he got to a deduction of 30 per cent across-the-board. The court reduced the contingency deduction applicable to non-pecuniary damages and future losses to 15 per cent to reflect the double layer of hypotheticals of serious consequences upon an event occurring serious enough to cause a concussion, the lack of evidence to support the conclusion that the appellant had suffered a serious concussion every two years, and the reduction in frequency of injury since the appellant ceased playing elite competitive hockey. An additional reduction was made of 10 per cent to the appellant’s past loss of income to take into account the time component. The award for future loss of earning capacity was too low. The judge did not find it probable that the appellant would be permanently disabled from employment, but no expert excluded this future hypothetical as a real and substantial possibility. The judge did not analyse the economic evidence, the general level of earnings the appellant might have achieved but for the accident and what gainful employment the appellant would be able to find if he continued to improve. The judge’s presumed conclusion that there was a real and substantial possibility of the appellant experiencing a further concussion resulting in serious post-concussive symptoms absent the accident also supported the conclusion that because of the accident, there was a real and substantial possibility that the appellant was now at risk of suffering much more serious consequences in the event of a further concussion. But this was not considered. The award of $300,000 was consistent with a return to normalcy within a few years, but there was no finding that the appellant would ever return to normalcy, nor could it be guaranteed that treatment and training would be successful. Given the uncertainties the appellant faced and the judge’s findings about his incapacities, the impairment was set at 50 per cent of his without-accident capacity, or $600,000, subject to the contingency.

Dornan v. Silva, [2021] B.C.J. No. 1248, British Columbia Court of Appeal, M.V. Newbury, J.C. Grauer and P.G. Voith JJ.A., June 9, 2021. Digest No. TLD-July52021004