11 Aug Injured Australian Lawyer Seeks Award For Loss Of Future Earnings

McGahan v. Selock, 2020 BCSC 973, was a fast-track personal injury action relating to a motor vehicle accident. The key issue in dispute was the extent to which the accident has interfered with the 52 year old Plaintiff’s ability to pursue a legal career in Canada. She had worked as a successful lawyer in Australia for 14 years before moving to California for her husband’s work in 2007. In 2013, the Plaintiff and her husband moved to British Columbia. Although the Plaintiff never returned to the practice of law after leaving Australia, she and her husband both confirmed that she always contemplated returning to work as a lawyer.

At trial the judge had to determine what the Plaintiff’s loss of future earning capacity was. ICBC argued that there should be no award at all under this head of damages, as there was no real and substantial possibility that the Plaintiff would have qualified for and pursued a legal career in Canada.

However, the judge concluded that there was a real and substantial possibility that the Plaintiff would have returned to work as a lawyer in Canada at some point. The Plaintiff has worked very hard her entire life. There was little prospect that she would suddenly decide to adopt a life of leisure.

The judge used the capital asset approach to quantify the Plaintiff’s loss. That method was appropriate given that the loss was not easily measurable.  A number of negative contingencies had to be incorporated into the analysis, including:

1. The prospect that the Plaintiff would not have been able to pass the Canadian course work or law society exams;
2. The potential for her Canadian qualification to have been delayed beyond the trial date in any event;
3. The risk that the Plaintiff would have only engaged in part-time work irrespective of the accident;
4. The likelihood that she would not have been able to find work where she was prepared to work and live; and
5. The likelihood that the Plaintiff would still be able to find work, even with her present limitations.

When the ability to assess the likely course of events is particularly challenging, the court may invoke the “Pallos Approach” of awarding one or two years’ income.

The judge found that an appropriate award was $120,000, which represented 1 ½ years average income for a part-time BC lawyer under the Pallos Approach, as well as an 80% negative contingency under the capital asset approach.