Ruling says mistake affected assessment of damages for future loss of earning capacity
The British Columbia Court of Appeal found a palpable and overriding factual error in the trial judge’s discernment of a real and substantial possibility that an injured party would have become a police officer, but for a motor vehicle accident.
In King v. Karpenko, 2025 BCCA 357, the appellant’s vehicle rear-ended the respondent’s vehicle on June 21, 2014, while the latter was merging onto Highway 97 from Dilworth Drive in Kelowna. The appellant admitted liability for the accident.
In March 2023, after a damages-only trial, a judge of the Supreme Court of British Columbia awarded the respondent $100,000 in general damages, $37,000 in special damages, $100,000 for past lost earning capacity, $300,000 for future loss of earning capacity, and $40,000 for future care costs.
The trial judge determined that the respondent sustained soft-tissue injuries to his neck, upper back, bilateral shoulder girdles, left arm, left hand, lower back, left buttock, left hip, and left leg due to the accident.
The judge noted the respondent’s diagnoses for chronic whiplash-associated disorder, chronic mechanical spine pain, chronic myofascial pain syndrome, mood and anxiety symptoms, and sleep disruption.
The judge found that the respondent would not meet the requirements as a full-time mason or construction worker, could not meet the physical demands required of a police officer, and might have to resort to part-time work to manage his chronic pain in the future.
On appeal, the appellant alleged that the judge erred in assessing past and future earning capacity and finding a real and substantial possibility (evaluated at 20 percent) that the respondent would have worked as a police officer if the accident had not occurred.
In his cross-appeal, the respondent claimed errors in the judge’s assessment of all types of damages, except special damages.
Future loss adjusted
The Court of Appeal for British Columbia allowed the appeal to the extent of reducing the award for future loss of earning capacity to $164,500 from $300,000, but dismissed the respondent’s cross-appeal.
The appeal court found no error in the judge’s assessment of non-pecuniary damages, damages for past lost earning capacity, and future care costs.
However, the appeal court saw a palpable and overriding factual error in finding a real and substantial possibility that the respondent would have become a police officer without the accident.
The appeal court deemed it impossible to reconcile the evidence and the judge’s underlying factual findings with his discernment of a real and substantial possibility that the respondent would have worked as a police officer by January 2016.
The appeal court rejected the appellant’s argument that the judge considered potential lost earnings as a police officer in assessing damages.
According to the appeal court, while the judge’s error in finding that the respondent might have become a police officer absent the accident did not impact his assessment of damages for past lost earning capacity, the error did affect his assessment of future loss of earning capacity.
The appeal court added that it could not tell from the judge’s reasons how much of the $20,000 average annual future income loss award arose from a lost capacity to work in construction or policing.
The appeal court calculated the present value of the respondent’s construction-related income loss as $164,490, upon considering:
- the respondent’s age of 52 at the time of trial
- the retirement age of 65
- gross annual income loss of $15,000
- the multiplier used by an expert economist retained by the respondent
The appeal court rounded up this amount to $164,500, representing the award for future loss of earning capacity.
Next, the appeal court determined that the respondent’s cross-appeal should fail.
The appeal court found it unnecessary to tackle the argument that the judge erred by applying a standard closer to absolute certainty in determining the respondent’s likelihood of being a police officer. The appeal court explained that its conclusion that the judge erred in finding a real and substantial possibility of the respondent becoming a police officer resolved this appeal ground.
The appeal court saw no errors in the judge’s assessment of non-pecuniary damages and his consideration of the appropriate factors, including the respondent’s age, the nature of his injuries, the severity and duration of his pain symptoms, and the effects of these symptoms.
Lastly, the appeal court found no legal or palpable and overriding errors in the judge’s assessment of future care costs. The appeal court concluded that the judge carefully considered and weighed the relevant evidence.
