• Injuries Suffered During the Pursuit of Higher Education Which Delayed Entry into the Workforce Result in Damages for Loss of Future Earning Capacity
  • October 29, 2010 | Author: Ruth E. Trask
  • Law Firm: Stewart McKelvey - St. John's Office
  • When a serious injury is suffered during a plaintiff’s pursuit of higher education, a delay in obtaining work often results. In Treberg v. Jarvis (2009), decided by the Newfoundland and Labrador Court of Appeal, the plaintiff’s delay in starting his career as a professor resulted in an award for lost future income.

    The plaintiff, Jason Treberg, was an extremely active 24-year-old man with a bright future in biology. He was bicycling across an intersection when the rear tire of his bicycle was struck by the defendant’s vehicle. The defendant had been making a left turn and did not see the plaintiff in time to avoid him. At trial, the judge concluded that the defendant had not kept a proper lookout and that the plaintiff had the right of way at the time of the accident.

    The plaintiff suffered a broken femur and injured knee, as well as abrasions to his elbows, feet, hands, and a severed tendon in a toe on his right foot. He underwent surgery after the accident to repair the broken femur and was hospitalized for thirteen days. After the initial recovery period, he was able to walk with difficulty, and relied on a cane for a time. Squats were impossible and he had difficulty negotiating stairs. His physical limitations were augmented several years later when he fell off his bicycle again and injured his knee somewhat seriously. However, the court found that the earlier vehicle accident was the predominant cause of his limitations.

    Treberg was completing a Master’s degree in biology at the time of the accident, and he later undertook a Ph.D. in the same subject. His laboratory research was somewhat physically demanding, as it involved carrying heavy buckets of water containing codfish and standing for long periods. He was also occasionally required to attend on Department of Fisheries and Oceans vessels for deep sea research.

    His doctoral supervisor described him as a very bright “once-in-a-lifetime” student, with a promising future as a university academic. There was a significant amount of evidence at trial devoted to the career path of an academic. Tenured academic positions are highly competitive and only a small percentage of candidates in Canada are successful every year. Completion of research in a short time is considered an indicator of potential success. To complete this program in three years, as the plaintiff was expected to do, instead of the usual four, would have been extraordinary. The plaintiff had conducted an unusually high amount of independent research and publication during his Master’s degree.

    After the accident, the plaintiff’s capacity to undertake research with the same energy and productivity was noticeably lessened. His use of a cane restricted his ability to carry buckets and thus slowed his work considerably. He was experiencing pain in his right knee. Treberg’s limitations and lack of energy meant that he no longer completed the same amount of independent research and publication. Treberg’s doctoral supervisor testified that the accident had delayed the plaintiff in obtaining his degree, leading to a delay of one year in obtaining a faculty position.

    At trial, Treberg was awarded $60,000 for “loss of opportunity”, being the estimated first year salary he would have earned had he started as an assistant professor one year earlier. The defendant appealed the trial judge’s award. She did not challenge $60,000 as the appropriate base amount to compensate Treberg for the effect of the year’s delay in obtaining his doctorate and entering the workforce. However, she submitted that the trial judge erred by failing to take into account, and deduct, $22,719.65 which Treberg earned from the school of graduate studies during the year of delay. The Court of Appeal agreed, holding that the failure to deduct income that was actually earned during that year would result in Treberg obtaining double recovery for this portion of his loss.  Accordingly, the $60,000 award was reduced to $37,280.35. The Court also stated that the delay in obtaining employment as a result of the accident was incorrectly characterized by the trial judge as a loss of opportunity. It held instead that “where a plaintiff is delayed in entering the workforce, the appropriate analytical approach is to assess the loss to the plaintiff in terms of the loss or impairment of his or her future earning capacity as a result of the injuries suffered.”