An Arizona man who was just 17-years-old when an accident in Victoria drastically changed his life has finally been compensated by the B.C. government nine years later.
On March 31, 2007, David Mackey was one of 24 students from a Phoenix High School choir visiting and performing in Victoria and Vancouver. Mackey was along the pedestrian plaza on Wharf Street overlooking the Victoria waterfront when he decided to climb onto a concrete baluster and to a lamp post. MacKey swung around the lamp post, which was corroded to the core, and it came loose. As a result, Mackey fell two storeys onto the concrete walkway below and suffered a traumatic brain injury.
His father, James Mackey brought legal action against the province on his son’s behalf and that lawsuit has finally been settled in B.C. Supreme Court. At the time of the accident, the Provincial Captial Commission (PCC) owned and managed the plaza, including the railing and lamp post. Mackey sued both PCC and the province.
In the lawsuit, Mackey’s father was seeking damages relating to his son’s future earning capacity as he planned to become an orthopedic surgeon.
“In Vancouver, the group had toured the well-known sights, including Gastown. Walking along a street in Gastown, two or three of the male students, including David Mackey, had swung around lamp posts a couple of times. The posts were stable and based at street level. One of the chaperones was concerned about injury from traffic given the proximity of the lamp posts to the street. Apart from whatever one makes of that incident, all accounts of David Mackey throughout the trip described him as being well-behaved and well-mannered,” said judge George Macintosh in his decision.
Macintosh found PCC to be 35 per cent at fault for the accident and Mackey 65 per cent at fault.
According to the judge’s decision, an orthopedic surgeon earns around $8,680,000 USD by the time they are 65. But because Mackey was only planning on becoming a surgeon, and not actually one yet, the judge took that into consideration in awarding a financial judgement.
“I reduce, by 40 per cent, the calculation of an orthopedic surgeon's earnings to age 65 in the United States, in order to determine David Mackey's future lost earning capacity. A 40 per cent reduction from $8,680,000 (USD) results in an award of $5,208,000 (USD).”
Mackey was only in high school at the time of the accident. He needed to complete high school, his mission and community college; and be accepted for, and complete, undergraduate work, medical school and a residency before then being able to maintain a lifelong career in orthopedic surgery.
The judge said if it were not for his exceptional drive and determination before the accident, high I.Q. and focus on the specific profession from an early age, the financial award would have been reduced by more than 40 per cent.
“However, in my view, David Mackey was unique. In essence, at least in economic terms, I find that he had what amounts to a 60 per cent probability of fulfilling his ambition to work and serve his community as an orthopedic surgeon throughout his working life.”
Macintosh went on to say that it is unlikely that Mackey will be able to keep steady employment, due to his accident, and over the past seven years, he has jumped from job to job. He reduced the net loss of future earnings by 675,000 (USD) for a total of $4,533,000 (USD).
The damages awarded will be reduced to take into account that Mackey was found 65 per cent contributorily negligent.
