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Court Testimony from Experts @ BEC

Excerpt from Mclean v. Knox 2011 ONSC 7298

In a recent jury trial in Ottawa, Ontario, Smith, J. set aside the jury's verdict for the plaintiff's future loss of income (which was nil) and awarded $117,200 before gross up for income taxes (para. [84]) to Kyle McLean, which was reduced for a liability finding of 15% to $99,620. The following paragraphs related to Ms. Brown's testimony on behalf of the plaintiff, and the judge's findings are excerpted directly from Smith R., J.'s decision released Dec. 8, 2011:

[44] I find that the jury's award of zero damages for loss of future income was devoid of any evidentiary support even if they discounted the plaintiff's evidence completely as the uncontradicted evidence of the defendant confirmed that the plaintiff would suffer some loss of future income.

[71] The uncontradicted evidence of the forensic [economist], Cara Brown, was that if the plaintiff had been able to work as a roofer on a full-time basis, he would have earned $304,000 more than what he would have earned as a non high school graduate. I find that the plaintiff was able to work on a full-time basis and would not have been limited to working on a part-time basis notwithstanding his evidence that he was in pain and fatigued after working each day.

[77] The uncontradicted evidence of the economist, Ms. Brown, was that the plaintiff would suffer a loss of $304,000, before gross up for income taxes, as a result of not being able to work as a roofer. His future income loss if he was unable to work as a mover would be $235,000 before gross up. Both of the above amounts were calculated when compared to the statistical earnings in Ottawa for a non high school graduate.

[78] I have found that the plaintiff is able to work as a mover however, there is a 20 per cent probability that he would develop osteoarthritis and not be able to work as a mover for his full work life. Applying a 20 per cent probability to $235,000 figure results in an amount of $47,000, which would be an amount of damages for future loss of income if he continued to work as a mover. This would the actual percentage of future income loss the plaintiff would suffer if he continued to work as a mover, after accounting for the percentage likelihood that the the loss would in fact be suffered.

[79] I find that the actual loss of future income suffered by the plaintiff would be the difference between what he could have earned as a roofer but for the accident of $304,000 and the adjusted amount that he could earn as a mover. From the sum of $235,000, which is the amount he would have lost, if he could not work as a mover, I deduct the 20 per cent probability or $47,000 for the possibility he would have developed osteoarthritis. This reduces the amount of income that he would earn above that of a non high school graduate from $235,000 to $188,000 ($235,000 - $47,000).

[80] The plaintiff's loss of future income for being unable to work as a roofer would be the difference between his total loss for being unable to work as a roofer ($304,000) and the adjusted loss of income that he would suffer as a result of a shortened work life as a mover ($188,000). The total loss of future income that the plaintiff will suffer is therefore for being unable to work as a roofer is $116,000 ($304,000 - $188,000).

[81] When calculating the above amounts, the economist, Ms. Brown, applied contingencies for unemployment ranging from 3.9 per cent to 10.7 per cent, a disability contingency ranging from 1.133 per cent to 6.799 per cent, a mortality contingency, and she assumed a retirement age of 63. She used the "real" interest discount rate of 0.5 per cent for the first 15 years and thereafter 2.5 per cent was used in accordance with Rule 53.09(1)(b). I find that these contingencies and assumptions were reasonable.

[82] I therefore award the plaintiff damages for loss of future income incurred as a result of injuries suffered in the accident of $116,000. To this amount, I add the sum of $1,200 as the estimated income loss for being off work for three weeks after surgery to have the screw removed from the plaintiff's elbow ($10.00 per hour for 40 hours per week is $400 per week)...

[84] The plaintiff's motion to refuse to enter judgment of zero dollars for future loss of income is granted. I assess the plaintiff's total damages for loss of future income at $117,200 before gross up for income taxes. (emphasis added in para. [84] only)