Deformed by arm surgery, B.C. apprentice electrician’s court award upped to $350,000 on appeal

Sixteen years after his arm was permanently deformed during surgery as a child, a young man’s award for negligence against the Langley surgeon has been doubled by the B.C. Court of Appeal.

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The B.C. Supreme Court made an “inordinately low and wholly erroneous estimate of the impairment” that the doctor’s negligence would have on the future earning for his former patient, Justice Leonard Marchand wrote on behalf of the three-judge panel in a decision released Wednesday.

The court roughly quadrupled damages for Maxwell McKee’s future earnings, to $250,000 from the $65,000 awarded by the trial judge, based on the maximum amount suggested as appropriate by surgeon Dr. Tracy Hicks.

Hicks admitted liability and the case was all about determining damages.

McKee had asked the courts to award him $1.5 million, based on the difference between what he was likely to earn in the future as a retail clerk, graphic designer or photographer compared to what he would have earned as an industrial electrician he was apprenticing as at the time of the 2021 Supreme Court trial.

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McKee was five when he was operated on for a broken arm that was set improperly, leaving him with an “obvious deformity,” which a second doctor called “cosmetically unacceptable and unsightly” and said could cause him long-term pain and affect his physical abilities. McKee is vulnerable to posterolateral rotary instability, which can take years to develop.

By age 10, he had “pain, tightness and an uncomfortable popping sensation” in his elbow at times and he did have pain at his first job at a pet shop while mopping or lifting and later when he took a job as an apprentice electrician, the trade he chose as a career, according to the judgment.

The medical experts for McKee testified McKee’s deformity would affect his ability to work, with one concluding he would be able to work as a retail clerk but not as an electrician and his “overall capacity to compete for work in an open job market has been reduced due to his ongoing physical limitations.”

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Anothe
r doctor said he could work as an electrician but may not be able to sustain the work and the injury would affect his competitiveness for work.

Hicks’s expert medical witness noted in her testimony that McKee had successfully completed the first year of his apprenticeship which she said proved he had “sufficient functional capacity” to work long-term as an electrician, but he just might not be able to go home after a tough work day and do heavy maintenance work.

The trial judge “erred in principle by failing to consider relevant economic evidence in measuring Mr. McKee’s loss of future earning capacity,” when she set the award at $65,000, the appeal judge wrote.

The trial judge had based it on one accepted formula, of awarding double a plaintiff’s current annual salary, in this case the $30,000 McKee earned as a first-year apprentice when he was 19 years old.

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But that didn’t take into account that McKee would need accommodations from future employers because of his injury or that he would have to work less often or for a shorter period of time or that he may have to switch careers, the Appeal Court said.

If McKee worked as an industrial electrician to age 65, an economist testified he would earn $3.1 million over his lifetime, the Appeal Court noted. It said based on facts at trial that McKee would have lost about $310,000, or 10 per cent of his lifetime earnings, because of the injury. It reduced that figure by 20 per cent based on the evidence of low completion rates for apprenticeships, to arrive at $250,000.

Marchand wrote that McKee’s “prognosis is guarded. Some complications can take two to three decades to develop.”

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“Since the judge erred in principle by failing to consider relevant economic evidence in measuring Mr. McKee’s loss of future earning capacity, this court may intervene and alter the damage award for Mr. McKee’s loss,” he wrote.

McKee had also asked the Appeal Court to award him a separate award for loss of future housekeeping capacity, which the trial judge has included in the $110,000 non-pecuniary award, which covers pain and suffering.

In total, he was awarded $110,000 plus $250,000, more than double the $110,000 plus $65,000 he was awarded at trial.

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