Court values brain injured claimant’s lost future earning capacity at $4,533,000 U.S.

David Mackey was 17 years old when he was visiting BC from the US. He was swinging on a severely corroded lamp post. It broke & he fell ten meters below. & suffered a severe brain injury.

Mr. Justice Macintosh heard a 34 day trial to assess relative degrees of fault and Mr. Mackey’s damages including his loss of future earning capacity.

Mr. Mackey’s lawyers argued that absent his accident he would have become an orthopaedic surgeon in the USA even though he was still in high school when he was injured.

The defence argued that the claimant’s scholastic performance up to the accident date would have barred him from achieving the qualifications needed to eventually become an orthopedic surgeon.

Mr. Justice Macintosh decided the case on July 19, 2016. He adopted the reasoning of a another judge: “the educational potential of a child can sometimes be measured by evidence about parental education, sibling achievement, and other factors. In this connection, the court will be generous.  Doubts must be resolved in favour of the victim rather that the tortfeasor [wrongdoer] because all of the risk of not obtaining university standing must not be imposed upon the Plaintiff. … ”

The judge concluded that:

  • “there is a real and substantial possibility that [he] would have been able to achieve his goal of becoming an orthopedic surgeon, were it not for the accident, and
  • “as a result of the accident, [he] has substantial, permanent injury, primarily the extensive loss of executive function….”

The judge accepted the evidence of an economist that “the present value of an average orthopedic surgeon’s earning capacity in the United States, to age 65, is $8,679,762 (USD).”

He then said that “However, the real and substantial possibility of David Mackey becoming an orthopedic surgeon, but for the accident, is not the same as him being an orthopedic surgeon.”

He then reduced by 40%, the average present value of an U.S orthopedic surgeon’s earnings to age 65. This is known as a negative contingency related to the  significant uncertainty that the claimant, who was injured at the age of 17, would have become an orthopedic surgeon.

This resulted in Mr. Mackey’s loss of future earning capacity being reduced to about $4,533,000 (USD). after the 40% so-called “reduction for contingencies.”

Finally, this amount was reduced again but this time by 65% so that the court award accounts for the fact that the judge decided that Mr. Mackey was 65% to blame (contributorily negligent) for his terrible injury.

See Mackey v British Columbia, 2016 BCSC 1333