BC Court of Appeal rejects speculative testimony on potential earnings in personal injury case

The plaintiff was on an athletic scholarship until injuries ended her athletic career

BC Court of Appeal rejects speculative testimony on potential earnings in personal injury case

The BC Court of Appeal dismissed an appeal and cross-appeal on damages for past and future loss of income following a motor vehicle accident, finding the trial judge's award reasonable.

In Tigas v. Close, 2024 BCCA 223, Andria Close sustained injuries in a 2017 motor vehicle accident at age 33. The trial judge found the appellants, Ryan and Arabella Tigas, fully responsible for the accident. The court awarded Close $160,000 in non-pecuniary damages, $99,321.75 for past loss of income, $163,980.64 for loss of future earning capacity, and other incidental awards.

Prior to the accident, Close was an elite athlete who attended Kent State University on a field hockey scholarship until injuries ended her athletic career. She then attended the University of British Columbia, where she faced academic challenges due to dyslexia. Her employment history included roles as a lifeguard and fitness instructor and various positions at BC Ferries and the Watson Centre for Brain Health.

After the accident, Close attempted to return to work but found the tasks too demanding, eventually securing a position at Grouse Mountain, where she currently earns $62,000 annually. The trial judge noted that her injuries, which included chronic pain, post-traumatic stress disorder, and cognitive impairments, impacted her ability to work.

The court found a real and substantial possibility that Close would have earned an annual salary of $70,000 without the accident compared to her current $60,000. This led to an annual ongoing loss of $10,000 until her retirement at age 70.

The appellants contended that the judge overestimated Close’s past and future earning capacity. They argued that the judge failed to evaluate reasonable career alternatives available to her had she not been injured. On the cross-appeal, Close argued that the judge erred by not recognizing her potential employment and undervaluing her future earning capacity.

The appeal court, however, found no merit in these arguments. The court deemed the judge's rejection of speculative testimony regarding Close’s potential earnings as appropriate. The court further noted that the judge’s findings on the accident's impact on Close’s employment prospects were supported by evidence, even if not explicitly articulated using the legal framework for loss of earning capacity.

The BC Court of Appeal concluded that the trial judge's award was reasonable and supported by evidence, dismissing both the appeal and cross-appeal. The court upheld the trial judge’s assessment of Close’s loss of income earning capacity.

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