B. C. Appeal Court reduces loss of earnings award from $300,000 to $75,000

The responsibility for ensuring safety when a skier is seated onto a chair lift is split 50/50 between the ski resort (and its chair lift attendant) and the skier, the Court of Appeal for British Columbia has ruled in Kralik v. Mount Seymour Resorts Ltd.

The court reduced the amount awarded for loss of earnings, noting the skier in the case has alternative means of employment that would not require the use of his injured arm.

Peter Kralik, an experienced skier, became preoccupied with cleaning ice from the chair as it slowly came along the boarding ramp, the court noted in its decision. As a result, Kralik failed to seat himself correctly and instead grabbed onto the chair. Realizing he would not be able to hold on if the chairlift continued skyward, he let go and fell roughly three meters, injuring his right shoulder.

The trial judge awarded the painter $300,000 in loss of earning capacity and found the ski resort and the chairlift attendant 100 per cent to blame.

On appeal, however, the court found Kralik — a Ph. D. in Mathematics who was previously employed in Slovakia in the field of computer programming — would be capable of returning to work at an occupation that did not require heavy lifting.

When determining Kralik’s loss of earning capacity, the trial judge relied on two cases: Heyes v. Lanphier and Rosvold v. Dunlop.

On appeal, the court noted the plaintiffs in these cases “were uneducated and likely to be affected substantially by their injuries over their entire working lives,” because they would be required to work in areas demanding strenuous labour.

But Kralik, the appeal court noted, had the option of returning to work in his field of mathematics, even if his arm injury precluded him from carrying on his work as a painter until retirement.

“After all, one must assume Mr. Kralik had invested a considerable amount of time obtaining his Ph. D. and that he would earn substantially more, once he is established in the [mathematics] field in Canada, than he would earn in jobs requiring physical labour,” B. C. Court of Appeal Justice Mary V. Newbury found on appeal.

The judge therefore reduced Kralik’s award from $300,000 to $75,000.