Executive Summary: Key Legal and Evidentiary Issues

• Dispute centered on damages arising from a motor vehicle accident, with liability admitted by the defendant.

• The court evaluated the plaintiff’s entitlement to damages for general, special, past and future loss of earning capacity, and cost of future care.

• Assessment of whether there was a real and substantial possibility the plaintiff would have become a police officer but for the accident.

• The sufficiency and admissibility of evidence regarding the plaintiff’s career prospects and earning potential were scrutinized.

• The appellate court reviewed the trial judge’s application of the standard for hypothetical future earnings and the calculation of damages.

• The appeal resulted in a reduction of the award for future loss of earning capacity, with other heads of damages upheld. 

Facts and outcome of the case

Background and facts

The case arose from a motor vehicle accident that occurred on June 21, 2014, in Kelowna, British Columbia. Andriy Karpenko, the plaintiff, was rear-ended by a vehicle driven by David Oliver King while merging onto Highway 97. At the time, Karpenko was in his early forties, having immigrated from Ukraine where he had been a high-ranking police and military officer. After arriving in Canada, he worked as an auto mechanic, then in construction, and eventually formed his own construction company. Karpenko also pursued qualifications to become a police officer, including serving as an auxiliary member of the RCMP and applying to various police departments, but was only interested in joining at a higher rank.

Following the accident, Karpenko experienced chronic pain and related symptoms, which affected his ability to work in construction and pursue a career in policing. He continued to work in construction with difficulty and later became a bylaw enforcement officer for the City of Kelowna. Medical evidence confirmed that Karpenko suffered from chronic pain and related conditions that limited his capacity for physically demanding work.

Trial decision

At trial, liability for the accident was admitted by King. The court focused solely on the assessment of damages. The trial judge awarded Karpenko $100,000 in general damages, $37,000 in special damages, $100,000 for past loss of earning capacity, $300,000 for future loss of earning capacity, and $40,000 for cost of future care. The judge found that Karpenko’s symptoms compromised his ability to work in construction and masonry, but did not significantly affect his ability to work as a bylaw officer or security guard. The judge also concluded there was a 20 percent chance Karpenko would have become a police officer if not for the accident and factored this into the damages calculation.

Appeal and cross-appeal

King appealed the trial judge’s assessment of past and future loss of earning capacity, arguing that the evidence did not support the conclusion that Karpenko had a real and substantial possibility of becoming a police officer. Karpenko cross-appealed, seeking higher damages and arguing the judge underestimated his losses and the likelihood he would have joined the police.

The appellate court found that the trial judge erred in concluding there was a real and substantial possibility Karpenko would have become a police officer, as this finding was not grounded in the evidence. The court determined that only the loss of capacity to perform construction work was supported by the record. As a result, the award for future loss of earning capacity was reduced from $300,000 to $164,500. The court upheld the trial judge’s findings and awards for general damages, special damages, past loss of earning capacity, and cost of future care.

Outcome

The appeal was allowed in part, resulting in a reduction of the future loss of earning capacity award. The cross-appeal was dismissed. The total damages awarded to Karpenko after the appeal amounted to $441,500, comprising general damages, special damages, past and future loss of earning capacity, and cost of future care.