Background and Appeal
This is an appeal from a personal injury decision in the B.C. Supreme Court, in Aujla v. Nijjar, 2022 BCSC 1262. The plaintiff was involved in two motor vehicle accidents occurring on June 7, 2015, and January 24, 2016. Both actions were heard together, as were both appeals. The Defendants in both actions admitted liability. Accordingly, the issues at trial and on appeal relate to causation and quantum of damages.
Aujla appealed the trial judge’s award on the basis that she erred in assessing the heads of damages, due to a misappreciation of the causes and severity of her injuries. Specifically, Aujla argued the trial judge did not sufficiently analyze the causal connection between the damage done to her knees in the first accident, which was then exacerbated by following her rehabilitation program. Moreover, Aujla also appealed the trial judge’s finding of fact regarding her past loss of earning capacity. Aujla sought an order for a new trial.
Issues on Appeal
The Court of Appeal considered Aujla’s appeal on the following grounds:
- whether the trial judge made palpable and overriding errors of fact in assessing the evidence with respect to the severity of her injuries;
- whether the trial judge erred in law in finding that the injury to her knee was not caused by the second accident;
- whether the trial judge erred in fact and law in failing to award her damages for past loss of earning capacity; and
- whether the trial judge erred in principle in assessing her damages for future loss of earning capacity by failing to make the required comparison between her likely without- and with-accident earnings, and ignoring evidence of the value of opportunities lost as a result of her accident related injuries, resulting in an award which was not anchored in the evidence.
Key Points
The only issues on appeal were the causation of Aujla’s injuries and appropriate damages flowing from these injuries. The trial judge failed to properly consider both of these arguments. A new trial was subsequently ordered “to avoid inconsistent findings”. The Court of Appeal accepted Aujla’s argument that the trial judge failed to consider Aujla’s alternative theory of causation for her knee injuries. Critically, Aujla’s accepted argument stated that this exacerbation occurred by following her rehabilitation program. The Court, citing Athey v. Leonati, [1996] 3 SCR 458, agreed the exercises undertaken in line with the program were “causally connected to the Defendants’ tortious conduct in a similar way as is exemplified in these authorities”. The crux in accepting this argument, and granting an appeal, was the fact the trial judge simply failed to consider this.
The trial judge further erred by failing to adequately analyze Aujla’s future loss of earning capacity, despite the fact sufficient evidence was proffered. The trial judge accurately deployed the Rab test and the capital asset approach in assessing Aujla’s damages for future loss of earning capacity. However, the Court of Appeal determined the trial judge failed to sufficiently engage in the third step of the Rab test; the trial judge did not compare Aujla’s potential future earnings without the accidents with Aujla’s potential future earnings after the accidents, despite the evidence being readily available.
Key Takeaways
This decision highlights important nuances in damages assessment to consider when providing advice and crafting arguments.
Although wholly unavoidable, injuries flowing from rehab undertaken after an injury is sustained was accepted as stemming from the Defendants’ tortious conduct. This may act as a reminder to adequately advise potential damages that may flow well after the incident itself. This is especially the case where the plaintiff is a high-earning individual.
The Court of Appeal highlighted that although Aujla:
“had developed a successful legal career post-accident and pre-trial, that fact by itself was not relevant to her future capacity. The key question was not what problems she would face if it became impossible for her to practice law, but rather what loss she has suffered by being unable to “work the long hours required by a career in law”—the real and substantial possibility the judge identified.” [77]
The accepted view that Aujla will likely continue to achieve higher earnings was, and is, irrelevant in properly conducting what Aujla’s earning could have been barring the accidents. This may act as a reminder when advising on potential damage awards in future similar cases.