Lost “Fringe Benefits” Must Be Taken Into Account When Calculating Diminished Earning Capacity
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, confirming that lost ‘fringe benefits’ are recoverable as part of a¬†diminished¬†earning capacity analysis.
In last week’s case (Combs v. Bergen) the Plaintiff was injured in a 2009 collision. ¬† She missed several months from work causing a past loss of income of just over $18,000. ¬†During her time off work she lost the benefit of employer contributions to her Canada Pension Plan and to her pension. She sought recovery of these losses. ¬†Mr. Justice Steeves agreed these were¬†compensable¬†and provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†The plaintiff seeks past income loss in the amount of $18,287.25 and the defendant agrees with this amount. However, the plaintiff also seeks payment for her employer‚Äôs contributions to the Canada Pension Plan (CPP) and s to her pension. These amounts are $831.05 and $1,737.29, respectively. The defendant opposes any payment for these amounts.
¬†¬†¬†¬†¬†¬†¬†¬†¬†There is authority for the plaintiff‚Äôs submission on benefits to the effect that ‚Äúthe compensatory principle requires that the full value of lost fringe benefits must be taken into account when computing loss of working capacity‚ÄĚ (Ken Cooper-Stephenson,¬†Personal Injury Damages in Canada, 2nd¬†ed. (Toronto: Carswell, 1996) at 240). This reasoning was adopted by the Newfoundland Court of Appeal in¬†Taylor v. Hogan¬†(1998), 160 Nfld. & P.E.I.R. 93 at para. 41 (Nfld. C.A.). I conclude that is appropriate in this case.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Past income loss is set at $18,287.25 plus CPP and pension contributions. Total is $20,855.59.