A Recent View from the Bench on the Impact of Work History on Claims for Loss of Earning Capacity

The B.C. Supreme Court recently weighed in on the significance of a Plaintiff’s work history on claims for loss of earning capacity in Riding-Brown v. Jenkins, 2014 BCSC 382.

On June 26, 2009, the Plaintiff, Mr. Riding-Brown, was riding his bicycle when he was struck by a vehicle operated by the Defendant, Ms. Jenkins.  Liability for the accident was admitted.  Mr. Riding-Brown suffered very serious orthopedic damage to his left knee and tibia, requiring several surgeries and leaving him with a pronounced limp and persistent pain.  The trial judge, Mr. Justice Baird, found that Mr. Riding-Brown’s injuries “materially compromised his enjoyment of life”.

The most contentious issue at trial was the claim for past and future loss of earning capacity, with the Plaintiff seeking a total award ranging from $2,202,500 to $2,402,500, while the Defendant submitted a total award of $400,000 would be more appropriate.  The reason for the wide gulf between the two parties’ positions turned on Mr. Riding-Brown’s pre-accident work history, which the Court described as “singularly unimpressive.”  The Court commented in its reasons that while Mr. Riding-Brown was “clearly a person of considerable intelligence, charm and employability”, his work history since leaving high school was characterized by defence counsel, in terms the Court apparently considered to be charitable, as “variable, intermittent, and generating typically low earnings on an annual basis”.

At the time of the accident, Mr. Riding-Brown was 32 years old, and Mr. Justice Baird stated that, in his experience, by that point “most young men of the Plaintiff’s potential are well settled in their career paths or working lives.”  However, he found Mr. Riding-Brown was an exception to this rule, and stated that Mr. Riding-Brown’s very modest pre-accident earning history was not due to an absence of natural talent or ability, nor due to a slow economy, but rather, the culprit was a “long term aversion to serious work”.

Mr. Riding-Brown had based his large claim for future loss of earning capacity on the fact that in the year before the accident, he had worked for a period of six weeks in Fort McMurray, Alberta, during which time he earned a large amount of money.  Mr. Justice Baird took note of the fact that Fort McMurray was in the middle of an economic boom expected to last for a number of years, however he also found that Mr. Riding-Brown had not “shown the sort of mettle that could persuade me beyond a modest percentage change that he might have been capable of full-time, career-long labour in a remote and forbidding climate such as Fort McMurray.”  The Court concluded that the Plaintiff’s claim for future earning loss was “grossly overstated” and assumed “an entirely unheralded revolution in the Plaintiff’s attitude towards employment.”  In the result, the Court awarded $450,000 for loss of future earning capacity.

It is interesting to note that while the Court in this case appears to have clearly had some sympathy for Mr. Riding-Brown given the seriousness of his injuries and their impact on his enjoyment of life, it had harsh words for Mr. Riding-Brown on the issue of loss of future earning capacity.  It seems clear from the reasons in this case that the Courts will look quite closely at a Plaintiff’s past employment history when attempting to project the Plaintiff’s losses into the future, and that optimistic predictions of improved employment prospects may be looked upon quite skeptically, particularly where the Court is of the view that the Plaintiff has not lived up to his or her potential in the past.

While every case falls to be determined on its own facts, this decision should give some comfort to Defendants faced with a Plaintiff who is clearly over-reaching on a claim for loss of earning capacity.  In such cases, where the Plaintiff claims the potential for significant future earnings, the Plaintiff’s track record prior to the accident will likely be the deciding factor.