Products & Services
Court Testimony from Experts @ BEC
Excerpt from Dabrowski v. Robertson
 ABQB 522 (CanLII)d) Past loss of income  In all discussions of Mr. Dabrowski’s loss of income, it must be noted that there was no expert evidence concerning either the difference on the amount of force needed to depress a clutch on a passenger vehicle and that required to depress the clutch on the type of tractor-trailers that Mr. Dabrowski was driving or on the amount of force that Mr. Dabrowski could exert on his clutch-using foot at various points in time after the accident.  As explained earlier, another major problem with assessing the value of past loss of income is Mr. Dabrowski’s lack of credibility. For example, when speaking about the driver re-training program which he attended, Mr. Dabrowski testified that he could not go back to his old job because "it was the opinion of the man who was conducting the course (who was not called by the plaintiff) and, in particular, because I did not feel up to it myself . . . I was afraid to drive".  In other words, setting the date when Mr. Dabrowski was able to return to work is fraught with difficulties because the assessment depends on Mr. Dabrowski’s own, unreliable, evidence.  According to the Rawling/Esmail report, by April, 2004, Mr. Dabrowski’s: left ankle and foot revealed a healed surgical incision medially below the medial malleolus. There was no swelling or skin discoloration. Some mild tenderness was reported just on palpation of the Achilles tendon. There was some restriction in ankle dorsiflexion. There was good plantar flexion. Inversion and eversion were restricted and painful.  Mr. Dabrowski obtained his current employment within a month of being cut off Workers’ Compensation benefits. It is very difficult to say when, prior to that time, he was able to return to work. Mr. Lucki’s opinion is that Mr. Dabrowski’s depression was resolved by February 2005, but that he had residual anxiety over driving. Nevertheless, at that time, Mr. Dabrowski was reluctant to take WCB in vivo desensitization in relation to that anxiety. Mr. Wilson, the operations manager for Mr. Dabrowski’s current employer, testified that, prior to hiring a new driver, the company gives the new hire a driver road test during which he would have to satisfy the company that he was a competent and safe driver; Mr. Dabrowski met that test. In assessing all of the evidence, have come to the conclusion that, by August 1, 2005, Mr. Dabrowski was able to return to the same type of work as he has done prior to the accident; it was at that time that Mr. Dabrowski began to look for work, so he himself has set the date.  However, in calculating Mr. Dabrowski’s past loss of income, the court must not only consider when Mr. Dabrowski was able to return to work but when he should have been able to work had he properly mitigated his damages. For the reasons set out above, I have concluded that Mr. Dabrowski was able to return to work one and a half years post-accident; rounding up the figures at p. 22 (or 13) of Ms. Brown’s report, I have estimated those damages to be $66,000.00. e) Future loss of income  Had the court concluded that Ms. Robertson was to some degree negligent with respect to the accident, it would have concluded that, as of the date of trial, Mr. Dabrowski had, essentially, recovered from the accident: as of the date of trial, Mr. Dabrowski held a truck driving job that is similar to the job he had before the accident, he is making more money than he made at the time of the accident, his depression and anxiety are manageable, as is his highway driving at speed phobia.  In coming to this conclusion, the court notes, once again, Mr. Dabrowski’s unreliability as a witness. Although it is clear from all of the evidence that Mr. Dabrowski’s current job is very similar to the job he had prior to the accident, he testified that he could not accept a higher paying highway driving job because of his fear of driving, and that he even turned down opportunities to work longer at his current employment, because, "I feel tired".  Nonetheless, the court would have gone on to conclude that Mr. Dabrowski had established, through Cara Brown’s HALS/PALS analysis, that it was possible that he would suffer some loss of income in the future, although that loss would be based on a minor or moderate level of disability rather than the severe level of disability used by Ms. Brown.
(i) The HALS/PALS analysis Had the court concluded that Mr. Dabrowski was entitled to recovery, it would have agreed with Mr. Dabrowski’s economist, Cara Brown, on her endorsement of the HALS/PALS approach to using statistical data to predict the probable effect of disability of a member of the labour force. This approach is particularly important in a situation such as the one here where Mr. Dabrowski eventually returned to the labour force, and was earning more money at the time of trial than he had been earning at the time of the accident. As Ms. Brown puts it:
"The impairment suffered by the plaintiff may not have translated into a loss of earnings because of a ‘boom’ in the plaintiff’s industry (generating increase in earnings beyond the pre-incident income levels regardless of the plaintiff’s reduced capacity)." Where a victim of negligence is a member of the labour force, or is expected to become a member of the labour force, it is appropriate to recognize the potential loss of income from employment separately from the award that is made for the disability itself in the pain and suffering award for non-pecuniary damages. In this way, the additional potential loss to earning power which is borne by a victim of negligence who is, or who expects to be, employed can be fairly compensated. A person who has no attachment to the labour force and a person who is attached to the labour force who both lose a leg are not entitled to the same award of damages.  In this case, Dr. Jomha has provided evidence to the effect that Mr. Dabrowski should expect to feel the results of his ankle injury permanently.  On this issue, the court notes, as well, that Ms. Robertson’s economist, Derek Aldridge, does not disagree with either the validity of the HALS/PALS input or the regressive analysis undertaken by Ms. Brown. His only concern is limited to the observation that, where much is known about an individual litigant, that specific information rather than generalized information of the type found in the surveys, should be preferred.  I do not disagree with Mr. Aldridge’s concern. However, even accepting Ms. Brown’s approach, I would not, as she has, classified Mr. Dabrowski’s impairment as "severe" or "very severe". In modifying her approach, I would have relied on Ms. Brown’s own standards:
"The validity with which the HALS or PALS data represents the plaintiff’s reduced earning capacity in the future depends on medical or vocational prognostications about the plaintiff and the degree of severity the plaintiff will suffer, such severity being defined by the HALS and PALS surveys." Here, I would place Mr. Dabrowski’s impairment in the moderate category.  In the result, the court has estimated Mr. Dabrowski future loss of income at $50,000.00.