Our colleagues Robert Brun, KC and Jennifer Brun, KC were counsel in King v. Karpenko, 2025 BCCA 357, where the BC Court of Appeal granted the appeal of the defendant from a trial finding awarding the plaintiff a future loss of capacity award on the basis of a hypothetical possibility.
The case provides an instructive example of how courts should approach calculating future loss of capacity awards and was picked up for comment in Canadian Lawyer Magazine.
Read the full article: BC Court of Appeal sees error in finding injured man likely to be police if not for accident.
The plaintiff was injured in a car accident where liability was admitted, and the trial judge awarded $300,000 for future loss of earning capacity in a damages-only trial. At the time of the accident, the plaintiff was a construction worker with aspirations to become a police officer.
On appeal, our team took the position 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 had he not been injured in the accident.
At para 27 of its decision, the Court of Appeal reiterated the applicable legal principle that: “a future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation”: Grewal v Naumann, 2017 BCCA 158 at paras 46–48. The court noted that the trial judge had stated in his reasons for judgment, “there was no evidence whether…any policing jobs would have been realistically available to him” but then went on to award him damages for the loss of a 20% possibility of becoming a police officer.
The appeal court found the trial judge’s findings could not be reconciled with his award and affected his assessment of future loss of earning capacity. In the result, the appeal court calculated the present value of the respondent’s losses based on the employment he held at the time of the accident and reduced the award for future loss of earning capacity to $164,500 from $300,000. The appeal court also dismissed the respondent’s cross-appeal regarding alleged errors in the trial judge’s assessment of all types of damages, except special damages.