ICBC Law

Imagine sustaining permanent and partially disabling injuries in a BC Car Accident through the fault of another.  Despite your permanent injuries you are able to carry on in your own chosen profession.  Are you entitled to be compensated for future wage loss in your ICBC tort claim or does the fact that you can work in your own occupation restrict such an award?  Reasons for judgement were released by the BC Supreme Court today dealing with this issue.

In today’s case (Ayoubee v. Campbell) the now 34 year old Plaintiff was injured in a multiple vehicle collision which occurred in September, 2003.    The Plaintiff sustained serious injuries including a herniated disc (at the L5 / S1 Level) with associated pain down his leg and mechanical back pain in the collision.  At the time of the accident he had just begun a computer course at BCIT and intended to make a career from the opportunities that this education would provide.  Despite his serious injuries he was able to complete his studies then found and maintained employment in his chosen field.

In awarding $100,000 for non-pecuniary damages the court accepted that the Plaintiff will have some permanent pain and made came to the following conclusion with respect to his injuries:

[104]        I accept Mr. Ayoubee’s evidence that he has never been pain free since the accident, although he has managed to control the level of pain through exercise and stretching.  He has attempted to function as fully as he can, despite the limitations he now contends with.  In the past year, however, his leg has deteriorated and the quality of his life has diminished even further.  Surgery may help with the pain, but he will likely be left with residual numbness and discomfort, and the back pain will remain.  As a result of the accident, he has lost the quality of life of an active young man.

Madam Justice Humphries engaged in a lengthy discussion addressing the Plaintiff’s loss of future earning capacity.  The court found that given the Plaintiff’s permanent injuries certain occupations will be closed to the Plaintiff, however, the Plaintiff ‘is not foreclosed form the type of job he was training for at the time of the accident, obtained after the accident, and has held full-time employment ever since.’

In assessing the Plaintiff’s impaired earning capacity (future wage loss) at $80,000 Madam Justice Humphries made the following analysis:

[89]            In my view, this is a case in which it would be more appropriate to award a lump sum for loss of capacity.  There are a significant number of jobs that Mr. Ayoubee can no longer do, jobs of the type he once held and which could still provide him with opportunities for part time income enhancement that he now must forego.

[90]            As well, he is not as attractive an employee on the open labour market as he once was, given his chronic pain and inability to work without breaks.

[91]            He will also be unable to work while he recovers from surgery, which it is likely he will undergo once he has seen Dr. Dommisse.  Dr. Yu suggests the recovery time would be two or three months.  The defendants calculate the loss attributable to those months, reduced by the possibility that Mr. Ayoubee might decide not to have the surgery, and suggested that the applicable rate should be his salary level in 2005 when, in their position, he should have mitigated his damages.  The defendants arrived at a figure of approximately $7,700.  The plaintiff did not address that issue.

[92]            Surgery may improve Mr. Ayoubee’s leg pain, although the doctors differ on whether this is still realistic.  In any even he will be left with back pain.  I take into account that, of the two, the leg pain has always been the most severe, and is the cause of his greater restrictions at present.  On the other hand, given the back pain, there is no suggestion that he will be able to undertake moderate to heavy physical employment again.

[93]            An important factor that distinguishes Mr. Ayoubee’s case from those in which very high awards have been made for future loss is that he is not foreclosed from the type of job he was training for at the time of the accident, obtained after the accident, and has held full-time ever since.  He does not require retraining.  His employability does not depend on his ability to do heavy physical labour and he never intended that it should, although there is a substantial possibility that he might have supplemented his income occasionally with the type of job he held at Rona, if he were still able to do so.  

[94]            Considering that some future wage loss will be attributable to the surgery, and considering the diminution in the capital asset of his employability generally, I set his future loss, including his loss of capacity, at $80,000.

One of the most difficult types of damages to value when a person sustains serious and permanent injuries through the fault of another in a BC Car Crash is that of ‘Future Wage Loss’.

Courts in British Columbia often view a person’s ability to earn a living as a ‘capital asset’ and if disabling injuries are sustained then that capital asset becomes diminished.  Accordingly BC Courts often assess damages for future wage loss as damages for a ‘diminished earning capacity’.

The basic principles that courts consider in awarding damages for ‘diminished earning capacity’ were set out almost 25 years ago in a BC Supreme Court case named Brown v. Golaiy,  These factors are as follows:

The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:

1.      The plaintiff has been rendered less capable overall from earning income from all types of employment;

2.      The plaintiff is less marketable or attractive as an employee to potential employers;

3.      The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4.      The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

In 2007, in a case named Steward v. Berezan, the BC Court of Appeal rejected a trial judges award for diminished earning capacity stating that “… The claimant bears the onus to prove at trial a substantial possibility of a future event leading to an income loss, and the court must then award compensation on an estimation of the chance that the event will occur…“

Ever since Berezan many ICBC Injury Defence Lawyers have argued that the law has changed since Brown v. Golaiy and that there is a higher burden to reach before damages for future wage loss can be awarded.

Reasons for judgement were released today by the BC Supreme Court (Ashmore v. Banicevic) dealing with this argument and concluding that the factors set out in Brown v. Golaiy remain good law.  In a thorough analysis Madam Justice Smith gave the following reasons:

[140]          While a literal reading of that statement might indicate a change in the law, embodying an express direction to inquire first into whether there is a substantial possibility of future income loss before embarking on assessment of the loss (see Chang v. Feng, 2008 BCSC 49; 55 C.C.L.T. (3d) 203, and Naidu v. Mann, 2007 BCSC 1313, 53 C.C.L.T. (3d) 1), the Court of Appeal inDjukic v. Hahn, 2007 BCCA 203, 66 B.C.L.R. (4th) 314 (at para. 14) limited Steward v. Berezan to its facts, stating: 

…The error of the trial judge in Steward was in awarding damages for loss of earning capacity based on the plaintiff’s inability to work as a carpenter in circumstances where he had not worked as a journeyman carpenter for twenty years prior to the trial and, at age 55, did not contemplate any return to the trade.  The case turned on its facts and did not establish any new principle of law.  Conversely here, the assessment was based on a business actively pursued by both respondents when the accidents intervened and not on any long abandoned occupation without a prospect of their return to it.  I am satisfied that Steward has no application in the case at bar. 

[141]        In Sinnott v. Boggs, the plaintiff was a 16-year-old girl who had been 11 at the time of the accident.  The medical prognosis was that she would continue to suffer neck and shoulder aches, ongoing discomfort and intermittent headaches.  The trial judge assessed non-pecuniary damages of $35,000, past wage loss of $2,400 and lost earning capacity of $30,000 “for being less marketable as an employee because of the limitations on her ability to work competitively in all jobs previously open to her”.  The assessment of damages was upheld on appeal.  Mackenzie J.A. referred to the submission of the defendant on appeal that since there was no finding that any particular types of work were foreclosed to the plaintiff, no award for lost earning capacity could be made.  He referred to a number of authorities, including Steward v. Berezan, at para. 11, and stated:

All of those cases involved middle-aged plaintiffs in settled occupations.  Their continuing symptoms resulted in continuing pain and occupational discomfort but they did not reduce the plaintiffs’ ability to earn income in their chosen occupations.  There was no prospect that they would change employment to occupations where their earning capacity would be impaired.

[142]        MacKenzie J.A. then stated at para. 13 – 17:

In my view, the limitation on loss of earning capacity awards advanced by the appellant is not supported either in logic or by the authorities.

Three of the four factors outlined in Brown are broad enough to support an award in circumstances where a plaintiff is able to continue in an occupation but the ability to perform and the earning capacity resulting from that ability are impaired by the injury.

The line between non-pecuniary damages and damages for loss of earning capacity is between losses that sound in pain and suffering and loss of non-remunerative amenities on the one hand, and pecuniary losses in the form of a reduced ability to earn income on the other. There is no reason why an injury which permits a plaintiff to continue in a particular occupation but at a reduced level of performance and income should not be compensated for that pecuniary loss through damages for loss of earning capacity.

In the case at bar, Ms. Sinnott is a young person who has not yet established a career and has no settled pattern of employment. In such circumstances, quantifying a loss is more at large. Southin J.A. commented on this distinction in Stafford

[42]  That there can be a case in which a plaintiff is so established in a profession that there is no reasonable possibility of his pursuing, whether by choice or necessity, a different one is obvious. For instance, on the one hand, if a judge of this Court were to be permanently injured to the extent that he or she could no longer do physical, in contradistinction to mental, labour, he or she would have no claim for impairment of earning capacity because the trier of fact gazing into the crystal ball would not see any possibility that the judge would ever abandon the law for physical labour, assuming that immediately before the accident the judge was capable of physical labour. But, on the other hand, if a plaintiff is young and has no trade or profession, the trier of fact gazing into the crystal ball might well consider whether the impairment of physical ability will so limit his future employment opportunities that he will suffer a loss. See e.g. Earnshaw v. Despins (1990), 45 B.C.L.R. (2d) 380 (C.A.).

[43] There is, if I may use the word, a continuum from obviously no impairment of earning capacity from a permanent physical impairment, no matter how serious the impairment, to a very large potential loss which must be based on all the circumstances of the particular plaintiff.

I agree with those observations.  Ms. Sinnott is in a category of those who are young and without a settled line of work. The trial judge has found that Ms. Sinnott faces limitations on her ability to work competitively in jobs that were previously open to her. In my view, that finding is an adequate foundation for the trial judge’s award. I am satisfied that there was evidence to support the trial judge’s conclusions on the facts and there is no palpable and over-riding error of fact which would permit this Court to disturb her conclusion or award.

[143]        I conclude that the approach I should take to the assessment of lost earning capacity has not changed.  Accordingly, I must consider, with reference to the factors listed in Brown v. Golaiy, whether the evidence establishes the basis for an award in this case, and if so, at what level.

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On another note, today’s case dealt with chronic soft tissue injuries and serious headaches.  In awarding $80,000 for the Plaintiff’s non-pecuniary losses, the court made the following findings of fact about the Plaintiff’s injuries and prognosis:

[113]        I have considered all of the evidence given by treating physicians and other health care practitioners, as well as the evidence of Dr. Jung and Dr. Schweigel, who saw the plaintiff for the purpose of providing medical-legal reports.  Dr. Schweigel deferred to the expertise of Dr. Blasberg with respect to the jaw injury; as well, he saw the plaintiff on only one occasion, while Dr. Bowlsby and Dr. Condon both saw him on a number of occasions.  Both Dr. Bowlsby and Dr. Condon are very experienced practitioners and struck me as fair-minded witnesses who were not advocating for their patient.  Dr. Jung’s two examinations of the plaintiff were thorough and well-documented.  I accept the evidence of Dr. Condon, Dr. Bowlsby and Dr. Jung, who all had extensive contact with the plaintiff, and do not accept the evidence of Dr. Schweigel where it is in conflict with their evidence.  I also accept the evidence of Dr. Blasberg.

[114]        Upon consideration of all the evidence, I find that Mr. Ashmore suffered a whiplash injury in the motor vehicle accident affecting his jaw, neck, shoulders and back.  I find that he suffers a continuous low-grade headache and serious headaches at least twice weekly, and that he continues to experience right-sided neck and upper back pain, pain with swallowing, and pain in the region of the jaw joint.  There is no evidence that he suffered from these symptoms prior to the motor vehicle accident.  I do not find on the evidence that stress causes his symptoms, although it may exacerbate them.  I find that but for the accident Mr. Ashmore would not experience the persistent headaches which I find are his worst ongoing symptom, and that but for the accident he would not suffer the other symptoms I have referred to.  I find that the plaintiff has met the burden of showing on the balance of probabilities that the defendant’s negligence caused his injuries.

[115]        The plaintiff’s symptoms arising from the injuries caused by the accident have caused him frequently to require rest in the middle of the day, necessitating work late into the night.  The extent of those symptoms is shown by the fact that they have caused him to give up most of the very active sports he formerly enjoyed, and have constrained his ability to assist with the care of his young children and to enjoy the kind of life he led before the accident.  As well, these symptoms have reduced the amount of time and energy he has available for work outside his regular employment.  Finally, the symptoms have led him to spend considerable time pursuing relief through various forms of treatment.

[116]        Taking into account the opinion evidence of all of the expert witnesses as to the likelihood of further recovery, I find that Mr. Ashmore is not likely to make a full recovery, although he may experience some improvement to the point where he will be able to manage his symptoms better. 

Written reasons for judgment were released today by Madam Justice Stromberg-Stein of the BC Supreme Court awarding a Plaintiff just over $60,000 for her losses and damages as a result of a 2005 BC Car Accident.

The Plaintiff was in her mid 20’s when she was involved in an intersection crash involving a left turning vehicle. The lawyer for the offending driver admitted liability (fault) for the accident leaving the issue of quantum of damages (value of the injuries) to be addressed at trial.

The Plaintiff suffered several injuries including soft tissue injuries to her neck and lower back. Her most significant injury was a fibro-cartilage tear of her right wrist and a possible scapholunate ligament injury as well.

The Plaintiff had 14 sessions of physiotherapy which created ’some improvement’ of her neck injury. The Plaintiff had an MRI of her wrist which revealed a tear of the triangular fibro-cartilage complex (a “TFC tear”). The Plaintiff had a cortisone injection in her wrist which offered some temporary relief. Arthroscopic surgery was also recommended by an orthopaedic surgeon but the Plaintiff elected not to have this procedure done until her son was older.

The Plaintiff’s lawyers sought just over $150,000 in damages as a result of these injuries. The defence lawyers suggested numbers were significantly lower. Such a discrepancy is common in most ICBC injury claims that go to trial.

After hearing the evidence the court awarded damages as follows:

a) $35,000.00 for non-pecuniary damages;

b) $7,812.00 for past wage loss, subject to Part 7 and statutory deductions;

c) $486.99 for special damages;

d) $20,000.00 for diminishment of earning capacity; and

e) $1000.00 for cost of future care.

The court’s discussion relating to ‘diminshed earning capacity’ is worth reading for anyone advancing an ICBC injury claim concerned with future wage loss. In this case the Plaintiff was able to return to work for a period of time following the accident before leaving the workforce on maternity leave. By the time of trial the Plaintiff was retraining for a different profession. The court agreed with the defence lawyers point that this change of careers ‘is a natural progression for somebody (in the Plaintiff’s) position‘ and the court also put weight in the defence lawyer’s position that the Plaintiff ‘never worked a full year.’

The court cited one of the better known quotes from the BC Court of Appeal addressing ‘diminished earning capacity‘ which states:

Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning ability.

The court concluded that only a ‘modest award‘ was appropriate for the Plaintiff’s diminished capacity and awarded $20,000 for this loss.

Do you have questions about an ICBC wrist injury claim or an ICBC claim involving ‘diminished earning capacity‘ (future wage loss)?  Do you need advice from an ICBC claims lawyer?  If so, click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (Services provided for ICBC injury claims throughout BC!)