Plaintiff Receives Award For Loss of Earning Capacity Despite Receiving Promotion After Accident
In JACKSON V. MONGRAIN, 2010 BCSC 1866 the plaintiff successfully received an award for loss of future loss of earning capacity while remaining employed in a different role with his employer after the accident.
The plaintiff was 42 years old. He was employed as a labourer in demolition and before the accident was involved in work that “any man would recognize as backbreaking labour”.
Jackson’s primary complaint was a knee injury. He had some minor knee problems in the past but the court found that as of the date of the accident, he was “working as a labourer doing very heavy labour, doing all he wished to do while not at work and that in no context did either or both of his knee restrict his activities”.
The primary issue at the trial aside from non-pecuniary damages was whether Jackson had suffered a loss of future income earning capacity and further, if that loss or reduction would result in a “real and substantial possibility of his actually suffering a pecuniary loss in the future”. Since the accident, the plaintiff had been unable to return to his role as a heavy labourer. Initially, his employer took care to see that he was assigned light duties because of his injuries. He was then promoted to the more specialized role of “lead hand” and for a short period “junior foreman” and was able to work to the satisfaction of his employer without having to undertake the heavy jobs that were customary prior to the accident. The evidence was that Jackson was physically capable of fulfilling the roles of lead hand or junior foreman, but not that of heavy labourer.
The loss or reduction in capacity was clear, as Jackson would be restricted to only those jobs that did not involve the heavy labour that was his lot before the accident. Clearly, he was less marketable as an employee, less capable overall from earning income from all types of employment, and had lost the ability to take advantage of all opportunities that might otherwise have come his way in a competitive labour market. The question was then, given his current arrangement, whether he had established a real and substantial possibility that he would actually suffer that loss. The court answered “yes, but barely”.
Stewart J. noted that the plaintiff’s new found success in his current position as lead hand tended towards a finding that he had not met the test for actual loss. On the other hand, the plaintiff held a unique position that existed in an industry (demolition) subject to shifts in the economic climate. In addition, the plaintiff worked for a corporation that is a union company, competing against non-union companies for the same types of jobs, and that had a very small body of work in the offing. As such, the plaintiff had created sufficient speculation that he would actually suffer the loss.
Jackson was awarded $75,000 under this head of damage. In awarding this amount, Stewart J. considered “the two competing real and substantial possibilities that must be given weight according to their relative likelihood” namely that the plaintiff would never suffer the loss or that he would. He determined that former was more likely, and therefore reduced the award from the economic projections to reflect the lower likelihood.
This case can be taken for the principle that an employee is not prima facie disentitled to a future wage loss award where he continues on with his employer in a different capacity, even if he earns more money in that capacity. However, once an impairment is established, the competing hypothetical situations with respect to whether the loss will actually occur will be crucial in determining the amount that is actually awarded.
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