Damages of $407,761 for lost future earning capacity not inordinately low: BC Court of Appeal

The British Columbia Court of Appeal has dismissed an appeal in a vehicular injury case alleging that an award of $407,761 in damages for loss of future earning capacity – instead of the $500,000 claimed – was inordinately low. 

In Pickwell v. Rajwan, 2025 BCCA 314, the appellant sporadically engaged in entry-level retail work and earned an average annual income of $14,808 in the nine years leading up to two motor vehicle accidents in December 2013 and September 2014. The respondents admitted liability. 

In a January 2022 damages-only trial, the trial judge awarded the appellant $407,761 for future loss of earning capacity and other amounts for non-pecuniary damages, past loss of earning capacity, and future care costs. 

On appeal, the appellant challenged the amount the judge set for future lost earning capacity and sought to substitute a higher award. The appellant alleged that the judge erred by: 

• finding that the only real and substantial possibility was that the appellant would never have earned more than minimum wage and calculating his future lost earning capacity based on that 
• failing to analyze the relative likelihood of his lengthy unemployment or underemployment periods in determining and applying a 40 percent contingency deduction 
• not assessing the relative likelihood he would recover enough from his injuries to have paid employment in the future, in determining and applying a further 15 percent contingency deduction 
• making an inordinately low award that wrongly estimated the damage 

Award not inordinately low

The Court of Appeal for British Columbia dismissed the appeal after addressing the appellant’s four arguments. 

First, the appeal court ruled that the trial judge focused on what the appellant earned annually, not hourly, and did not assess his future earning capacity based only on his earnings history before the accidents to estimate his earnings potential without the accidents. 

Rather, the appeal court held that the judge used the approach the appellant’s counsel suggested for assessing his future lost earning capacity, used $30,000 in annual earnings as the starting point, applied a 40 percent contingency deduction to reflect his low attachment to the workforce, and ended with an annual figure above his past earnings. 

The appeal court noted that the appellant had never annually earned anything close to the earnings of someone working full-time and receiving minimum wage and had instead earned $14,808 average annual income in the nine years before the first accident. 

Second, the appeal court determined that the judge took a nuanced approach in selecting a 40 percent contingency for less than full-time work and considering the possibility that the appellant would have earned more in the future than he had in the past, without the accidents. 

The appeal court found that the judge reached a conclusion based on the evidence, including that the appellant: 

• went through lengthy unemployment periods, including those from March 2012 to March 2013 and from April 2013 to December 2013 
• worked four months in total in the two years before the first accident 
• did not work full-time for the duration of a calendar year for any year before the accidents, except 2011 
• made actual average annual earnings before the accidents that were almost 51 percent less than the judge’s assumed starting point of $30,000 for full-time annual earnings 

Third, the appeal court noted that the judge relied on the expert medical evidence to find a real and substantial possibility that the appellant’s condition could improve with therapy and determine that this possibility was 15 percent likely to occur. The appeal court said the judge applied the correct analytical process and reached a justified deduction. 

Fourth, the appeal court concluded that the judge did not award inordinately low damages for future lost earning capacity. The appeal court noted that the judge relied heavily on the suggestion of the appellant’s counsel to use a starting point of $30,000, a minimum wage earner’s annual salary, before applying the appropriate contingencies.