Court of Appeal Rolls Back Award to Injured Student

Reasons in the appeal of the case of Hussack v. Chilliwack School District No. 33, 2011 BCCA 258 were published on Tuesday. On April 17, 1998, Devon Hussack, who was then 13 years old, was playing field hockey in his physical education class when he was hit in the face with a field hockey stick while attempting to check a player from behind. He suffered a concussion that developed into a mental disorder causing disabilities.

The trial judge found that before the accident Devon’s teachers were unanimous that he was a pleasant, bright boy with no major problems other than chronic absenteeism from school. At the time of trial, the trial judge found Devon spent most of his time in his room either watching television or on his computer. His father would make his meals for him. He had no set schedule for sleeping or waking and difficulty getting around. His father would look after most of his needs. Devon told the Court, “my life is a living hell”. The trial judge awarded damages in the amount of $1,365,000 after finding that Devon’s PE teacher had breached his duty of care by permitting Devon to play field hockey without first ensuring that Devon had attained the necessary skills to do so safely.

After reviewing the reasons of the trial judge, a unanimous Court of Appeal reduced the award by a total of $265,000. At the heart of the review was the trial judge’s finding that there was a 25% chance that Devon would not finish high school.

school.

[102] In my view, this same evidence should have led the trial judge to reduce both the past wage loss and the loss of future income-earning capacity awards to account for the specific contingency that Devon might not have been able to hold a job regardless of the accident. I am of the view that she erred in law in failing to adjust the past wage loss award to account for this specific contingency. In failing to discount the award to take into account Devon’s pre-accident position, the trial judge placed Devon “in a better position than he would have been in but for the… accident” (Burdett, supra, at para. 61).
[103] Assuming that the 4% discount of the award for future loss of income-earning capacity was meant to address the possibility that Devon would have had difficulty holding a job in any event, I am of the view that such a small reduction would be “wholly erroneous” on the evidence. The trial judge concluded that there was a 25% likelihood that Devon would not finish high school. In my opinion, this is an appropriate percentage reduction for the contingency that Devon would still have had significant difficulty finding and keeping a job, given his significant pre-accident history of absenteeism from school, his late attendance record, and his inability to complete homework assignments.
[104] Therefore, I would reduce the past wage loss award of $200,000 by $50,000 to $150,000. I would reduce the loss of future earning capacity award to $785,000 (rounded up from $783,878).

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