Kralik v. Mount Seymour Resorts Ltd.,


2008 BCCA 97

Date: 20080304

Docket: CA034808


Peter Kralik




Mount Seymour Resorts Ltd.

and Pam Melsness




The Honourable Madam Justice Newbury

The Honourable Mr. Justice Mackenzie

The Honourable Madam Justice Kirkpatrick


G.K. Macintosh, Q.C.

R.B. Kennedy

Counsel for the Appellants

M.P. Maryn

Y.S. Wong

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

February 4, 2008

Place and Date of Judgment:

Vancouver, British Columbia

March 4, 2008


Written Reasons by:

The Honourable Madam Justice Newbury

Concurred in by:

The Honourable Mr. Justice Mackenzie

The Honourable Madam Justice Kirkpatrick

Reasons for Judgment of the Honourable Madam Justice Newbury:

[1]                The defendants, Mount Seymour Resorts Ltd. and Ms. Melsness, appeal the order of the trial judge below finding them liable in negligence for injuries suffered by the plaintiff when he fell from a ski chairlift at Mount Seymour on March 16, 2003.  Mr. Kralik had been attempting to clear his chair of ice as it came along the boarding ramp of the chairlift.  Becoming preoccupied with this task, he failed to seat himself and then instinctively grabbed on to the chair.  As it began to ascend, he realized that if he did not let go, he would fall from a great distance, so he quickly let go and fell (about three metres) to the embankment below, injuring his right shoulder.  Ms. Melsness, the lift attendant, was found to have breached her duty of care “by failing to ensure that Mr. Kralik did load properly, by failing to realize there was a problem and by failing to stop the chair” as soon as it became clear he was in difficulty.  Mount Seymour Resorts Ltd. was also held liable, on the principle of respondeat superior, for her breach of duty.

[2]                On appeal, the defendants say that even accepting the trial judge’s findings of fact and other evidence consistent with those findings, the trial judge erred in holding the defendants 100% to blame, and that this court should find that the plaintiff was contributorily negligent to the extent of 75%.  The defendants also say that the trial judge erred in finding that the defendants’ breach of duty was the cause of Mr. Kralik’s injury; and they take issue with the trial judge’s award of $300,000 in respect of loss of earning capacity suffered by Mr. Kralik.

[3]                For the reasons that follow, I am of the view that the defendants’ breach did contribute to the accident, but that the plaintiff failed to take reasonable care for his own safety and should be held responsible to the extent of 50% of his damages.  As well, I conclude that the damages award in respect of the plaintiff’s loss of earning capacity was not supported by the evidence and should be reduced to $75,000.


[4]                The facts of the case may be briefly stated.  Mr. Kralik, an experienced skier then 45 years of age, and his son had been skiing the morning at Mount Seymour and intended to take a last run on the “Mystery Chair” before lunch.  They lined up at the boarding area on the ramp as the chairs, on “slow” speed and moving at 1.7 metres per second, approached them.  The trial judge seemed to accept expert evidence to the effect that it would take 2.7 seconds for the chair to travel from the loading area to the place where it ascends, and 3.2 seconds in total to the end of the ramp, which is 5.4 metres, or almost 18 feet, long.

[5]                As his chair approached, Mr. Kralik noticed that the seat had snow and ice on it.  He tried to brush off the seat and encountered some difficulty in doing so.  The trial judge described his testimony of what happened next:

He said he was having trouble chipping the ice off the chair and he suddenly realized that he was right at the edge of the loading ramp and had no time to sit down.  His son had seated himself normally and Mr. Kralik grabbed the seat.  Tomas [his son] grabbed him in the vain hope he could climb onto the seat.  

The chair kept moving and began to rise up the mountain with Mr. Kralik dangling from the chair.  He decided that it would be safer to drop at that juncture rather than go any higher and put himself in more danger.  He fell about three metres.  All of this happened in a matter of a few seconds.  

Mr. Kralik said that he landed on his feet and then fell forward.  He felt a sharp pain in his shoulder when he landed on the ground.  He realized that he could not move his right arm.  He is right-handed.

He looked back to see where Tomas was and gave him a wave.  He then looked around for his glasses, found them, undid the bindings of his skis with his left hand and then gathered up his equipment.  This took approximately three to five minutes.  

In his discovery, Mr. Kralik said it took him seconds to get up, however the question was in relation to him standing up, not the time he laid in the snow or the time it took him to gather his equipment.  I do not find that this was a prior inconsistent statement.

In considerable pain, Mr. Kralik climbed up the embankment to the loading area of the lift.  He had considerable difficulty climbing up the embankment because it was slippery and he was in great pain.  It took him approximately five to ten minutes to climb up the embankment. …  [At paras. 5-10.]

[6]                Ms. Melsness was the lift attendant on duty.  Mr. Kralik testified that no-one stopped the chair as he grabbed onto it and then fell off, but that Ms. Melsness approached him later as he struggled to the top of the embankment and that she looked surprised to see him.  He told her he was hurt and she notified ski patrol.  The ski patroller, Mr. Traslin, arrived and took Mr. Kralik to the first aid station.

[7]                Ms. Melsness’ evidence was very different.  Her version of the events leading to Mr. Kralik’s injury was recounted by the trial judge:

She did recall the incident with Mr. Kralik.  She said she had been working about ten minutes when Mr. Kralik arrived at the lift to load.  She said she was standing at the load line and the control panel for the lift was to her right.  She said that Mr. Kralik and his son were in correct position to load and Mr. Kralik was brushing snow off his seat. 

She later in evidence said the seats were wet, and in cross-examination said that there was nothing on the seat when she was there.

She saw Mr. Kralik moving down the ramp.  She said she was watching him because he had not loaded yet.  She also recalled children in line behind the Kraliks and said that they were little enough that she was paying special attention to them.  However, she said she was also watching Mr. Kralik and when she saw that he was not sitting down when he was further down the ramp, she said she pushed the stop button on the control panel.  She turned her attention to a child that was loading to make sure he did not get hit by the chair.  She said that she had pushed the button when Mr. Kralik was close to the edge of the ramp and she knew that the chair had stopped past the ramp but she did not know how far past the ramp.

There is evidence from Mr. Gow that there is seconds of stopping time once the stop button is pushed.

When Ms. Melsness looked back she could not see Mr. Kralik.  She said she walked to the edge of the ramp and saw that he was already standing up.  She went down to him and said she carried his skis up to the top of the slope.  She said that people clear their chairs all the time, but she has never seen anyone go over the edge before.  She said there is nothing unsafe about cleaning the chair. 
[At paras. 26-30.]

[8]                The trial judge preferred the evidence of the plaintiff.  In particular, she found that Ms. Melsness had not stopped the chairlift, had not noticed Mr. Kralik when he “ran into trouble with the loading”, and in fact did not see him until he climbed up to the top of the embankment.  (Para. 51.)  Nor, the trial judge found, had she done many of the things she was required to do by her employer’s operations manual after an incident of this kind.  (Para. 49.)

[9]                As I have already suggested, the trial judge’s sole finding of negligence on the part of the defendants was the failure of Ms. Melsness to observe Mr. Kralik’s difficulty and to stop the chairlift promptly or at any time.  Thus the plaintiff’s other arguments on liability – that the seats had not been properly cleaned on the day in question, that a second person should have been posted at the return station of the lift, that Ms. Melsness had not been where she was supposed to be, and that the loading ramp was too short – were all rejected and the defendants were found to have acted reasonably in those respects.  In failing to stop the chair, however, Ms. Melsness was found to have clearly breached the standard of care.  Further, the trial judge found that contrary to the defendants’ submissions, this failure had caused Mr. Kralik’s injury.  In her analysis:

Mr. Gow opined that because there is a stopping distance once the stop button is pushed, Mr. Kralik would still be over the ramp and would have fallen anyway and therefore the incident would have happened regardless.

I do not agree.  If Ms. Melsness had been paying attention, she could have stopped the chair sooner.  Even if the chair was over the end of the ramp when the chair came to a stop, Mr. Kralik would not have dropped down.  He dropped down because he was afraid of falling from a much higher elevation as the chair was ascending.  It is most likely that had the chair stopped, Mr. Kralik would have been able to hang on and would have hung on until he was safely removed from the chair.

I find that if Ms. Melsness had not breached her duty of care, Mr. Kralik would not have fractured his shoulder.  I find that the injury was caused by the actions of Ms. Melsness.  I find that Ms. Melsness was negligent.  There is no issue that Ms. Melsness was employed by Mount Seymour and was working in the regular course of her duties when the accident happened.  Therefore, Mount Seymour is vicariously liable for the injuries caused to Mr. Kralik as a result of Ms. Melsness’ negligence.  [At paras. 86-88.]

[10]            Counsel for the defendants argued at trial that Mr. Kralik’s injuries were his own fault.  At para. 82 of her reasons, the trial judge recounted the plaintiff’s objection that the defendants had not argued contributory negligence and that plaintiff’s counsel had assumed the defendants were not relying on contributory negligence at trial, although they had pleaded it.  The trial judge noted, however, that Mr. Kennedy, the defendants’ counsel at trial, had clearly raised the issue of Mr. Kralik’s own conduct and had submitted that what had happened was his own fault.  Indeed, most of the expert evidence adduced by the defendants was directed to that issue.  The trial judge therefore dealt with the question of contributory negligence, noting that the apportionment of liability is to be based on the degree to which each person was at fault, not on the degree to which each person’s fault caused the damage: see Cempel v. Harrison Hot Springs Hotel Ltd. (1997) 43 B.C.L.R. (3d) 219, [1998] 6 W.W.R. 233 (C.A.).  Her  brief analysis on the issue was as follows:

The evidence is overwhelming that people clean water and snow and ice off their seats all the time on this mountain without difficulty.  This is reasonable conduct for skiers.  Indeed, Mr. Kralik had cleaned his seat earlier that day.  A distinction is drawn between a want of attention and acting unreasonably: see Leischner v. West Kootenay Power & Light Company, [1986] 3 W.W.R. 97 at 109 (B.C.C.A.).

I conclude that Mr. Kralik suffered a moment of inattention.  Although he was aware that there was a ramp and a few seconds to load, he momentarily lost track of time as he was absorbed in the reasonable action of cleaning his seat.  Certainly, had he seated himself properly, the accident would not have occurred.  However, it cannot be said that he acted unreasonably.  I find that Mr. Kralik was not contributorily negligent in this action.  [At paras. 92-93; emphasis added.]

[11]            As a result of his fall to the ground when he let go of the chair, Mr. Kralik suffered a fracture to his right humerus and a tear to a rotator cuff.  The fracture was repaired by surgery on March 21, 2003, from which he recovered well.  (Para. 120.)  His family practitioner testified that Mr. Kralik had also suffered degenerative changes in his cervical spine as a result of the accident, but the trial judge preferred the evidence of Dr. Ellis, an orthopaedic surgeon, who opined that this conclusion as to causation was unreasonable.  (Para. 132.)  As set out by the trial judge, Dr. Ellis also opined that:

… Mr. Kralik has a permanent weakness and wasting about the right shoulder as a result of his injury which will compromise his ability to return to work and in particular work that involves over-the-shoulder height use of his right arm.  Returning to his career as a painter is not feasible.  He recommended further pool and strengthening treatment.  [Mr. Kralik] will also suffer intermittent flare-ups of his right shoulder pain.  [At para 131.]

Dr. Tarazi, the orthopaedic surgeon who performed the surgery, also reported that in his opinion, Mr. Kralik would have “ongoing problems with overhead repetitive movement and that his ability to work as a painter will be compromised.  This will likely be a permanent condition …”.  (Para. 122.)

[12]            The trial judge turned to the question of Mr. Kralik’s damages at para. 94 of her reasons.  She reviewed Mr. Kralik’s occupational history, noting that he had come to Canada in 2002 having a Ph.D. in mathematics and having worked in his native Slovakia in computer programming.  However, he was unable to find work in the computer field, partly because of his lack of English language skills, and in part “because the companies in Canada required a degree of specialization that he did not have.”  He was able to find work as a painter and testified that he enjoyed painting and had had discussions with a friend, Mr. Valchar, about going into the business of buying, renovating and reselling houses.  As a painter, Mr. Kralik had earned between $2,000 and $3,000 per month until the accident, when he had to quit working.  Nevertheless, the trial judge noted at para. 147 that because Mr. Kralik was unable to retrain successfully in the computer field, he had returned “to the construction field and work in an area that he is not really physically suited for.”  At para. 151, she continued:

Mr. Kralik has, in the future, the ability to earn income at a higher wage than he was as a painter.  He has a Ph.D. in mathematics.  He will need to retrain in a field that will provide him with suitable employment.  Mr. Kralik has language barriers, however his testimony at trial was understandable, and he understood the proceedings.  He occasionally required clarification, but not often.  I also recognize that he has age barriers.  He is seeking employment in a field occupied by young people.  However, there are many jobs available currently, including many jobs in construction, that would not necessarily involve overhead reaching, and many other jobs other than computers for which Mr. Kralik may become qualified.  Unfortunately this was not canvassed at trial.

[13]            With respect to damages for loss of earning capacity, the trial judge noted the “Steenblok approach”, based on Steenblok v. Funk (1990) 46 B.C.L.R. (2d) 133, [1990] 5 W.W.R. 365 (C.A.), and the “Pallos” approach, based on Pallos v. I.C.B.C. (1995) 100 B.C.L.R. (2d) 260, [1995] 3 W.W.R. 728, also a decision of this court.  Proceeding on the basis of Steenblok, Mr. Kralik had argued that he is now able to earn only $17,000 per annum, whereas but for the injury he would have earned approximately $70,000 or more per annum from painting or as a subcontractor.  The trial judge concluded that the evidence fell “far short” of proving such a loss and that although Mr. Kralik was partially disabled from doing “one aspect of heavy physical work”, he was “quite capable of working at employment that is less strenuous.”  (Para. 154.)

[14]            The trial judge quoted paras. 24-25 of Pallos, and an extract from Palmer v. Goodall (1991) 53 B.C.L.R. (2d) 44 (C.A.), where Madam Justice Southin observed that even a person who is likely going to be able to earn as much as he could have earned had he not been injured, is entitled to compensation when some occupations will be closed to him.  The trial judge then continued:

The calculation for such a loss is found at para. 43 of the Pallos, supra, decision as follows:

The cases to which we were referred suggest various means of assigning a dollar value to the loss of capacity to earn income.  One method is to postulate a minimum annual income loss for the plaintiff's remaining years of work, to multiply the annual projected loss times the number of years remaining, and to calculate a present value of this sum.  Another is to award the plaintiff's entire annual income for one or more years.  Another is to award the present value of some nominal percentage loss per annum applied against the plaintiff's expected annual income.  In the end, all of these methods seem equally arbitrary.  It has, however, often been said that the difficulty of making a fair assessment of damages cannot relieve the court of its duty to do so.  In all the circumstances, I would regard a fair award under this head to be the sum of $40,000.00.

I have also reviewed the decisions of Heyes v. Lanphier [2003 BCSC 1126], and Rosvold v. Dunlop, 2001 BCCA 1 where the plaintiffs were each awarded $300,000.00 for the loss of opportunity.  The court in those cases and in particular Rosvold considered how long it would take the plaintiff to find employment and also the possibility that employment might not work out for him.  Mr. Kralik is willing to retrain and upgrade his language skills which he will need to do since he can no longer paint.

The defendant submitted that Mr. Kralik has to upgrade his language skills regardless of whether he was injured.  That is not so.  He was working in the construction industry with people from his own country where his language skills were adequate in order to earn income from that business.  In order to work at another job in Canada, he must be given the opportunity to upgrade those skills.  He may also upgrade his computer skills or he may try something entirely different.

His loss of capacity over his working life is similar to that of Rosvold and his age is also similar.  Although any figure the court arrives at is somewhat arbitrary, I looked at the $36,000.00 that Mr. Kralik was earning at the time the accident occurred, and applying the analysis of the Rosvold decision, I conclude that $300,000.00 is an appropriate award for loss of capacity over his working life which will likely be sometime past the age of 65.  [At paras. 156-59; emphasis added.]

[15]            In addition, the trial judge awarded Mr. Kralik $75,000 for non-pecuniary damages, and $152,000 (less income actually earned post-accident) for his past income loss.  She dismissed his claims for mileage and extra care costs, and for punitive damages, for which she found no basis.



[16]            In their factum, the defendants argued that the findings of the court below that Ms. Melsness was not a truthful witness and that she had not stopped the lift, rested on “illogical and unreasonable grounds”.  At the hearing of the appeal, however, the defendants abandoned this ground, as well as an argument based on what was referred to as the “clear line doctrine” – an argument that would seem to be indistinguishable from the “last clear chance” principle of causation, long since discredited.  The defendants did submit, however, that even accepting that Ms. Melsness had not stopped the chairlift, that failure did not cause Mr. Kralik’s injury.  Counsel for the defendants acknowledged that normally, if he were to succeed on this point, the defendants would not be liable for any portion of Mr. Kralik’s damages; but since correspondence had passed between counsel in which the defendants stated they would not seek an order on appeal allocating greater than 75% responsibility to the plaintiff, the defendants would accept liability to the extent of 25%.

[17]            The defendants’ argument on causation would appear to rest largely on the opinion evidence given by their expert, Mr. Gow, who assumed in his report that Ms. Melsness had indeed stopped the chairlift and that the stopping distance after activation of the stop button was 2.1 metres, during which time the chair would have moved “to a point at or beyond the end of the horizontal ramp.”  Having accepted the finding that Ms. Melsness did not push the stop button, the defendants say it was in any event not within her power to bring the lift to a stop before the chair reached the end of the ramp and that having decided to hang on to the chair as it ascended, Mr. Kralik would have had to jump in any event.

[18]            As has been seen, the trial judge did not accede to this submission. I quote again her reasoning on this point:

            I do not agree.  If Ms. Melsness had been paying attention, she could have stopped the chair sooner.  Even if the chair was over the end of the ramp when the chair came to a stop, Mr. Kralik would not have dropped down.  He dropped down because he was afraid of falling from a much higher elevation as the chair was ascending.  It is most likely that had the chair stopped, Mr. Kralik would have been able to hang on and would have hung on until he was safely removed from the chair.  [At para. 87.]

We are of course bound to defer to the Court’s findings unless they are shown to be clearly and palpably wrong.  The trial judge saw a video of the operation of the chairlift, including its being stopped, and she received other testimony regarding its operation.  I am not persuaded that she has been shown to be clearly and palpably wrong, at least to the extent that if the chair had been stopped promptly, Mr. Kralik’s injury would not have occurred or he would have been able to hang on until some action could have been taken – perhaps by means of the rescue ladder (of which Mr. Kralik said he was unaware) that was apparently near the base of the lift – that would have avoided his having to let go and fall the distance he did.

Contributory Negligence

[19]            Mr. Macintosh’s more promising argument is that the trial judge erred in finding that Mr. Kralik had not acted unreasonably in “momentarily [losing] track of time as he was absorbed in the reasonable action of cleaning his seat.” (Para. 93.)  In so holding, the trial judge purported to follow Leischner v. West Kootenay Power & Light Co. (1986) 24 D.L.R. (4th) 641, 70 B.C.L.R. 145, a decision of this court, which involved an injury suffered by an inexperienced sailor as he was helping the owner of a boat onshore to lower its mast.  The owner directed him to hold a wire stay.  As the plaintiff did so, the boat rocked, the metal tip of the mast came into contact with an overhead power line (of which he was unaware), and he was electrocuted.  He suffered brain damage.  Although the trial judge found him to have been at fault because the “power lines were there to be seen”, the Court of Appeal found that there was nothing that could have alerted the mind of a reasonable person to the presence of the power lines presenting a potential risk of danger vis-à-vis the lowering of the mast (at 651); and that “Prior knowledge of danger does not inevitably lead to a finding of contributory negligence”.  (At 653.)  The Court distinguished between “want of attention” and negligence, quoting (at pp. 652-3) as follows from Caswell v. Powell Duffryn Associated Collieries, Ltd. [1940] A.C. 152, [1939] 3 All E.R. 722 (H.L.):

… The degree of want of care which constitutes negligence must vary with the circumstances.  What that degree is, is a question for the jury or the Court in lieu of a jury.  It is not a matter of uniform standard.  It may vary according to the circumstances from man to man, from place to place, from time to time.  It may vary even in the case of the same man.  Thus a surgeon doing an emergency operation on a cottage table with the light of a candle might not properly be held guilty of negligence in respect of an act or omission which would be negligence if he were performing the same operation with all the advantages of the serene atmosphere of his operating theatre; the same holds good of the workman.  It must be a question of degree.  The jury have to draw the line where mere thoughtlessness or inadvertence or forgetfulness ceases and where negligence begins.  [At 176.]

The Court in Leischner concluded that in the circumstances, the plaintiff could not be held to be at fault for a “momentary lapse, namely, a spontaneous reflex-like reaction to an order given by [the owner of the boat].”  (At 652.)

[20]            I do not read the Court’s reasoning, however, as laying down a principle of law to the effect that a momentary lapse in any situation cannot be said to be negligence.  To the contrary, the passage quoted from Caswell makes it clear that what constitutes negligence “must vary with the circumstances” and is “not a matter of uniform standard.”  As Mr. Macintosh contends in the case at bar, the situation in which Mr. Kralik’s “momentary lapse” occurred was not analogous to the situation in Leischner.  Mr. Kralik was an experienced skier who had made four or five trips up the mountain via the lift earlier in the morning.  He was perfectly familiar with how to use the chairlift properly and with the physical arrangement of the ramp.  Although it may have been reasonable for him to try to brush the ice off his chair briefly, he failed to pay attention at the moment when it was necessary, for his own safety, to do so.  It cannot have been a surprise to him that the ramp ended where it did or that the chair ascended.  Further, Mr. Kralik did not only suffer a “momentary lapse”.  He did not simply stand to the side and let the chair continue on without him.  Instead, he grabbed onto the seat in some fashion (not explored in the evidence which I have read), with the inevitable result that he was soon high in the air, being transported up the mountain.  With all due deference to the trial judge’s findings of fact, I conclude that Mr. Kralik was 50% at fault for failing to take reasonable care for his own safety.  Pursuant to s. 1(1) of the Negligence Act, R.S.B.C. 1996, c. 333, I would apportion 50% of the responsibility for Mr. Kralik’s injuries to himself.

Loss of Earning Capacity – Damages

[21]            The final ground of appeal advanced by the defendants is that the trial judge’s award of $300,000 to Mr. Kralik in respect of loss of earning capacity is clearly excessive and should be reduced.  In particular, they note that the occupational therapists who provided expert opinion at trial effectively agreed that Mr. Kralik was capable of full-time employment in sedentary, light, and medium-strength work, the only impairment being his inability to carry out heavy-strength work or work requiring extended reaching with his right arm.  Obviously, this affects his ability to work as a painter for the long term, as was noted by Dr. Ellis, the orthopaedic surgeon, and by the therapists, whose evidence the trial judge summarized as follows:

Three opinions were filed with respect to Mr. Kralik's ability to continue working in the painting field and his potential for retraining: one vocational expert and two occupational health experts.  One of the experts testified.

The bottom line is that Mr. Kralik cannot continue painting as a career.  He needs to retrain.  [At paras. 135-36.]

[22]            The fact that Mr. Kralik attempted to work in the computer field after the accident but was not successful, means that his disability does represent a material loss.  The defendants contend, however, that Mr. Kralik’s intention was “always to move into sedentary employment such as business or computer-related work” and that his earning capacity was affected less significantly than that of the plaintiffs in the two cases relied upon by the trial judge, Heyes v. Lanphier 2003 BCSC 1126, and Rosvold v. Dunlop 2001 BCCA 1, 84 B.C.L.R. (3d) 158.

[23]            I agree with counsel for the defendants that Heyes and Rosvold are very different from this case.  In Rosvold, this court increased the trial judge’s award for loss of income earning capacity to $300,000 from $125,000. The plaintiff was a 46-year-old man who had a grade 9 education.  He had always worked in physically demanding jobs and at the time of the accident was in the roofing business, to which he was unable to return.  The trial judge found that he had had the ability to earn $37,000 prior to the accident, but only $25,000 post-accident.  The trial judge made an award representing the present value of the difference, calculated to retirement.  On appeal, however, this court, per Huddart J.A., characterized this approach as “excessively mathematical” and observed as follows:

The award for loss of earning capacity cannot be so easily resolved, as the appellant's counsel recognized in an alternative submission.  In view of the excessively mathematical approach the trial judge took to the assessment of this loss, encouraged it seems by both counsel, it is important to recall the principles that guide the assessment of damages for personal injury.

The most basic of those principles is that a plaintiff is entitled to be put into the position he would have been in but for the accident so far as money can do that. An award for loss of earning capacity is based on the recognition that a plaintiff's capacity to earn income is an asset which has been taken away: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Parypa v. Wickware (1999), 65 B.C.L.R. (3d) 155 (C.A.).  Where a plaintiff's permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation.  What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset.  In some cases, projections from past earnings may be a useful factor to consider in valuing the loss but past earnings are not the only factor to consider.

Because damage awards are made as lump sums, an award for loss of future earning capacity must deal to some extent with the unknowable.  The standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458.  Possibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation.  These possibilities are to be given weight according to the percentage chance they would have happened or will happen.  [At paras. 7-9.]

Huddart J.A. concluded at para. 14 that the trial judge had not taken account of various factors and possibilities, including the possibilities that a business proposed to be started by the plaintiff would not meet his expectations and that he would not be able to find a suitable new job as he aged.  Having due regard for the trial judge’s confidence in his ability to start a successful business, the Court increased the award for the loss of income-earning capacity to $300,000.

[24]            In Heyes, the plaintiff was a 26-year-old counsellor who suffered a serious shoulder injury.  He was able to continue in his employment, but could not participate in contact sports, which had been part of his job.  His father owned a roofing business in which the son had never worked, but it had been a possibility, now taken away, that the son would eventually take it over.  After considering the factors listed in Rosvold, supra, McEwan J. awarded the plaintiff $300,000 for his loss of a capital asset.

[25]            The defendants argue that the case at bar is more analogous to that of Niitamo v. Insurance Corp. of British Columbia 2003 BCSC 608, 16 B.C.L.R. (4th) 276.  Mr. Niitamo’s age was similar to that of the plaintiff’s in the case at bar, but the similarity ends there.  In Niitamo, the plaintiff had been drifting for some years between jobs as a “self-employed contractor, carpenter, renovator and overall handyman”.  He had no formal trade qualifications and was unable to state with any certainty how much he had earned in any given year prior to 1997, two years before his accident.  In 1998 and 1999, he had managed to find some temporary work, part-time, which he supplemented with social assistance and assistance from his family.  Following the accident, he was left with only residual work capacity, which narrowed the range of occupations available to him considerably.  However, the trial judge noted that he would be well suited to work “at any number of entry level positions as well as a retail position with a building supply or hardware retailer.”  (Para. 90.)  The Court found that in the circumstances of the case, the fairest of the three approaches described in Pallos was to award him damages equivalent to two times his annual income based on the average of his weekly earnings for 1998 and 1999.  He was therefore awarded $13,563.68 for loss of future earning capacity.

[26]            Mr. Kennedy on behalf of the defendants contends that a similar approach should be taken in this case and that Mr. Kralik’s award should be reduced to approximately $72,000, representing twice the $36,000 that the trial judge found he was earning at the time of the accident.

[27]            I agree that the award of $300,000 was inordinately high in the circumstances of this case, which are not analogous to those of Rosvold, Heyes, or Niitamo, for that matter.  Each of those cases involved plaintiffs who were uneducated and likely to be affected substantially by their injuries over their entire working lives.  In the case at bar, while it is true that Mr. Kralik’s opportunities of earning income from heavy labour or other employment that involves lifting or reaching have been seriously diminished, the chances are good that he will turn to other employment and will do so successfully.  The trial judge did not find that but for the accident, he would have continued as a painter until retirement, nor that he would never have gone back into the mathematics field.  She did state at para. 153 that there was no reason why Mr. Kralik could not, with further training, obtain better employment – presumably not by going into the real estate investment field with Mr. Vachar, which she found he could not have done.  In my respectful view, however, she failed to reflect in her award the possibility (which I would have thought was indeed a likelihood) that he would ultimately retrain in and return to the mathematics field – notwithstanding his unsuccessful foray into the computer industry in the period immediately prior to trial.  After all, one must assume Mr. Kralik had invested a considerable amount of time obtaining his Ph.D. and that he would earn substantially more once he is established in the field in Canada, than he would earn in jobs requiring physical labour.  If in making the award, the trial judge was attempting to reflect “how long it would take the plaintiff to retrain” as well as “the possibility employment might not work out for him” (para. 157), an award that equates to eight to ten times Mr. Kralik’s annual income prior to the accident was clearly excessive, in my opinion.  I would reduce the award to $75,000, which is roughly equivalent to two times his pre-accident income and makes due allowance both for the difficulties he may encounter and the more positive contingencies that exist in this case.


[28]            For the foregoing reasons, I would allow the appeal to the extent of apportioning liability for the plaintiff’s injuries equally between him and the defendants, and reducing the damages in respect of loss of earning capacity to $75,000.

[29]            We are indebted to counsel for their helpful submissions.

“The Honourable Madam Justice Newbury”

I Agree:

“The Honourable Mr. Justice Mackenzie”

I Agree:

“The Honourable Madam Justice Kirkpatrick”