Victoria Edwards, a personal injury lawyer with Siskinds LLP, was recently published in Law360.
This article was originally published by Law360™ Canada, part of LexisNexis Canada Inc.
Read the full article below.
Victoria Edwards – Law360™ Canada – Posted: June 25, 2025
The case of Dynamic Air Solutions Ltd. v. Yu, 2025 BCCA 91 arose from a motorcycle accident in which the plaintiff, Yi Hao Yu, collided with the open door of a truck parked in the curb lane. The trial judge found both Yu and the truck driver, Chan Wai Chan, equally at fault and awarded Yu $413,000 in damages, split fifty-fifty. Both parties appealed the apportionment of liability. The appellants also appealed the finding that Yu’s back injury was caused by the collision, and the trial judge’s damages assessment.
Issues on appeal
- Did the trial judge err in apportioning liability equally between Yu and Chan?
- Did the trial judge err in finding that Yu’s lower back injury was caused by the accident?
- Did the trial judge err in assessing damages, particularly for loss of earning capacity?
Held
The appeal and cross-appeal were dismissed. The Court of Appeal upheld the trial judge’s findings on liability, causation and damages.
Legal considerations
Standard of review: The court emphasized deference to trial judges on findings of fact and
apportionment of liability, intervening only for palpable and overriding errors.
Negligence and apportionment: Both parties were found to have breached their duties of care. Chan failed to check for traffic before opening his door (contrary to s. 203 of the Motor Vehicle Act), and Yu made a “manifestly unsafe manoeuvre” by riding too fast and too close to parked cars. Per the Motor Vehicle Act, Yu had the same rights and duties as a driver of a motor vehicle, which required him to exercise due care and attention, and was generally prohibited against passing vehicles on the right.
Per the Negligence Act, responsibility is to be determined on the basis of fault as opposed to
degree of causation. The blameworthiness is a function of the extent to which each party’s
conduct departs from the standard of care expected of that party in the circumstances.
Causation: The trial judge’s finding that the accident caused Yu’s back injury was supported
by expert evidence and Yu’s credible testimony.
Damages assessment: The trial judge used a capital asset approach to assess future loss of
earning capacity, supported by an economist’s report. The court found this approach
reasonable given Yu’s limited work history.
Key findings
Issue No. 1 – Apportionment of liability
The court rejected arguments that Yu was solely at fault for unlawfully passing on the right. The trial
judge’s fifty-fifty apportionment was reasonable given both parties’ comparable blameworthiness.
The apportionment of liability is a discretionary task for the trial judge. Appellate courts will only
interfere in rare cases where there is a clear legal error or a grossly disproportionate result. In this
case, there was no clear legal error or grossly disproportionate result. The decision was supported by
the evidence at trial.
Issue No. 2 – Causation of back injury
The court upheld the finding that the accident caused Yu’s lower back injury.
The appellants argued that the trial judge wrongly applied the “material contribution” test. However,
the court confirmed that the trial judge had in fact applied the correct “but for” test for causation.
There was sufficient evidence that the accident was at least a necessary cause for his ongoing back
pain and limitations.
Issue No. 3 – Damages assessment
The arguments from the appellants against the trial judge’s damages assessment rested on the
assertion that the judge erred in his causation analysis. Having found that there was no error in the
causation analysis, most of the damages assessment arguments collapsed.
The trial judge awarded:
- $80,000 in non-pecuniary damages (reduced by 15 per cent for failure to mitigate),
- $80,000 for past income loss,
- $240,000 for future loss of earning capacity,
- $25,000 for future care.
With respect to past loss of earning capacity, the appellants argued that the trial judge erred by not
basing the award on what Yu would have earned but for the accident, instead considering what he
could have earned. They argued Yu’s part-time work and home renovation choices were unrelated to
the injury. The court found that the trial judge correctly considered Yu’s mixed motivations and
reasonably opted for a capital award of $80,000. There was no legal error or basis for intervention.
With respect to future loss of earning capacity, the appellants argued that the trial judge misapplied
the third step of the Rab v. Prescott test (see para. 47) and over-relied on statistical averages rather
than Yu’s earnings. The three steps for considering claims for loss of future earning capacity, particularly where the evidence indicates no loss of income at time of trial, are:
- Whether the evidence discloses a potential future event that could lead to a loss of capacity
(for example, chronic pain, future injury or risk of arthritis). - Whether there is a real and substantial possibility that the future event in question will cause a
pecuniary loss. - If so, assess the value of that possible future loss, which must include assessing the relative
likelihood of the possibility occurring
The court correctly applied the Rab framework and used a capital asset approach.
The court found no error in relying on statistical earnings data due to the plaintiff’s limited earnings
history. The approach was case-specific and justified.
Conclusion
This case reinforces the principle that appellate courts will defer to trial judges on factual findings and
discretionary assessments unless clear errors are shown. The Court of Appeal found no such errors
and upheld the trial judge’s balanced and reasoned approach to liability, causation and damages.
Victoria Edwards is an associate personal injury lawyer at Siskinds, The Law Firm. She provides top quality legal services to her clients by prioritizing clarity and accessibility when explaining legal
options to her clients. Her practice includes motor vehicle litigation, short- and long-term disability
claims, slips/trips and falls, and dog bites. She attended Western Law, where she worked and
volunteered in the legal clinic. She works primarily out of Sarnia, Ont., for clients across
southwestern Ontario.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the
author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective
affiliates. This article is for general information purposes and is not intended to be and should not be
taken as legal advice.