Getting to Zero Capacity: Dutton-Jones v. Dha et al, 2023 BCSC 854

In Dutton-Jones v. Dha et al., 2023 BCSC 854, the BC Supreme Court was asked, amongst other things, to determine the loss of future income earning capacity for a young plaintiff who was injured in two rear end motor vehicle accidents.  The plaintiff missed 3 weeks of work after the first accident, and a few days after the second, but she otherwise had been employed full-time in her field since graduating from university.  The defendants conceded the past income loss, as well as a delay in completing her education/entry into the workforce by 6 months due to the accident.  In terms of her current employment at the time of trial, the plaintiff had full-time work in her field, as well as two-side hustles, both of which were also in her field.  At first blush, the plaintiff did not appear to have suffered a loss of future earning capacity, but her situation was complicated by the fact that the accident worsened her pre-existing generalized anxiety disorder (GAD), resulting in her needing to take days off of work, on an annual basis, since entering the workforce after graduation from university.  In addition, the plaintiff had a period of time where she was struggling at the job prior to her current position, and two of her supervisor testified to that effect at trial.  Conversely, the plaintiff’s supervisor at her current position described her work quality as “exceptional”.

During cross examination, the plaintiff gave evidence regarding the number of days she had missed from work from 2019 to the end of 2022, as well as her sick leave and short-term disability benefits available to her.  She further admitted that she did not lose any income for any of these missed days.  In addition, the one year where the plaintiff missed a significant number of days, the court found that she missed the vast majority of those days for reasons unrelated to the subject accidents.

At paragraphs 51 to 80, Justice Lamb sets out the 3-stage process, under Rab v. Prescott, 2021 BCCA 345, for analyzing a claim for loss of future earning capacity, and applies the three-steps.  At the first step, Justice Lamb found that there was “a possibility that the plaintiff’s … ongoing aggravated GAD could lead to impairment of her income earning capacity in the future if her GAD prevents her from performing key components of her employment”[1], but not her chronic pain.[2]  At the second step, Justice Lamb found that the plaintiff’s claim that her ongoing accident-related injury would cause a future pecuniary loss was “only possible and speculative” not “a real and substantial possibility”.[3]  In reaching this decision, Justice Lamb found that “[a] detailed review of Ms. Dutton-Jones’s pre-trial sick leave suggests that there is no real and substantial possibility that she will lose income in the future because her pre-existing GAD was aggravated as a result of the accidents.”[4]  That detailed review involved a forensic-style analysis of the plaintiff’s sick days, year by year, and the use of calculators, both during cross examination and closing submissions.  Justice Lamb’s analysis of the sick leave evidence was as follows:

[75]      In summary, Ms. Dutton-Jones averaged less than a week and a half of annual sick leave between March 2019 and the trial that may have been related to injuries from the accidents. The actual number of accident-related sick days each year remains unclear. She estimated that 70% of her sick days at KPU were related to the accidents; however, there were no medical records or other documents to establish the reasonableness of this estimate, and I am not prepared to attach significant weight to her estimate without corroboration given the passage of time and her incentive to attribute time off to the accidents. Further, other than the leave in February 2021 and a day in June 2020, it is unclear whether any sick days were attributable to anxiety symptoms, which is the only accident-related condition I have determined could result in a potential future loss of earning capacity.

At the conclusion of step 2, Justice Lamb found that there was no real and substantial possibility that the plaintiff will suffer a pecuniary loss as a result of her aggravated GAD.  Finding thus, there was no need for Justice Lamb to continue on to the third step of the Rab test.

[1] Dutton Jones v. Dha et al, 2023 BCSC 854, at 54, 57.
[1] The purpose of this article, the writer has focused on the mental health diagnosis that was a potential cause for a loss of future earning capacity award, but, at trial, she also had to disprove that chronic pain due the accident injuries was a potential case for a loss of future earnings capacity award.
[1] Dutton Jones v. Dha et al, 2023 BCSC 854, at 60.
[1] Dutton Jones v. Dha et al, 2023 BCSC 854, at 65.

Case summary by Margot Liechti, Trial Counsel