Background
Kathryn Martha Clapson was rear-ended in a 2018 motor vehicle accident while completing her ophthalmology residency. The respondents admitted liability. Clapson suffered chronic neck and shoulder pain that affected work requiring prolonged static posture and neck flexion, although she continued practising as an ophthalmologist and modified her work to manage her symptoms.
After a 12-day damages trial, the Supreme Court of British Columbia awarded Clapson $100,000 for loss of past earning capacity and $1.375 million for loss of future earning capacity. The trial judge rejected her claim that the accident had reduced her earning capacity by 35%, but deducted 5% from both awards because she had not participated in a recommended active-rehabilitation program. Clapson appealed the earning-capacity assessments and the mitigation deduction.
The Court’s Holding
The Court of Appeal allowed the appeal in part. It held that the trial judge made a palpable and overriding factual error by ending Clapson’s future earning loss at age 65 despite finding that she would continue clinical work after ceasing surgery. Because her pain also affected clinic-based activities, including slit-lamp examinations, her post-65 working years had to be included. Using a retirement age of 75, the Court increased future-earning-capacity damages from $1.375 million to $1.475 million.
The Court also set aside the 5% mitigation deduction. The respondents had not proved on a balance of probabilities that active rehabilitation would have reduced Clapson’s injuries or damages to a measurable degree. General evidence that rehabilitation might provide positive benefits, and Clapson’s acknowledgment of a hypothetical potential improvement, did not satisfy that burden.
The Court otherwise deferred to the trial judge’s assessment. It upheld the $100,000 past-loss award, the finding that Clapson’s impairment was modest rather than 35%, the use of a 46-week working year, and the rejection of her expert’s unsupported vocational-capacity estimate.
Key Takeaways
- A future-earning-capacity award must cover all working years in which the proven impairment may cause pecuniary loss, including years after a claimant changes the nature of the work performed.
- A defendant alleging failure to mitigate must prove that reasonable treatment probably would have reduced the claimant’s injuries and must establish the resulting reduction in damages with sufficient specificity.
- Evidence that treatment could provide general or possible benefits is insufficient to justify a mitigation deduction.
Why It Matters
The decision reinforces the demanding evidentiary burden on defendants seeking a reduction for failure to mitigate. Courts cannot impose a percentage deduction merely because recommended treatment was low-risk and potentially beneficial; the evidence must connect the omitted treatment to a probable, measurable reduction in injury and damages.
It also illustrates the deference appellate courts give trial-level earning-capacity assessments. Appellate intervention required an identifiable factual or legal error, not merely disagreement with the valuation or comparison with a larger award in another case.