NEGLIGENCE — Personal injury — Employer and employee — Claim for work injury damages under the Workers Compensation Act — Where plaintiff injured by falling steel beam crushing his foot — Where plaintiff reasonably understood that he was instructed to approach the steel beams — Breach of duty — Causation — No finding of contributory negligence — Assessment of damages — Employment history — Total loss of earning capacity.
Quick Take
1Where an employer's supervisor directs an untrained labourer to approach a heavy load without first inspecting it for stability, the employer's breach of duty extends beyond mere omission of a safe system of work to a positive direction into danger, and the employee's compliance with that direction strongly negates any finding of contributory negligence.
2When assessing hypothetical lost earnings for a plaintiff with a markedly inconsistent pre-injury employment history, the court may apply a discount above the usual 15% vicissitudes allowance — here an additional 15% — to reflect the high probability that employment would have been intermittent and at varying skill levels even absent the injury.
3Purported improvements in a plaintiff's memory of events emerging years after an accident, attributed to nightmares and visions, are not accepted as reliable recollections, particularly where the plaintiff has long-term opioid use and the evolving accounts are consistent with embellishment of the claim.
