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
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
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
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