Diminished Earning Capacity Damages Awarded Despite Plaintiff Increasing Earnings Each Year Since Collision

Just because a Plaintiff suffers no past loss of income does not preclude a court from awarding damages for diminished future earning capacity.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, demonstrating this.

In today’s case (Grant v. Ditmarsia Holdings Ltd) the Plaintiff was injured in a 2015 collisions that the Defendants admitted fault for.

The crash caused chronic physical and psychological injuries.  The Plaintiff was  “a hardworking journeyman plumber” and despite his injuries, which had a poor prognosis for full recovery, continued to work and increased his earnings in the years following the crash.  Despite this he expressed concern that in the long term his stoicicism could not continue indefinitely and the injuries would eventually negatively impact his earnings.  The Court agreed.  In assessing damages at $325,000 for future diminished earning capacity Madam Justice Wilkinson provided the following reasons:

[99]         The plaintiff’s stoicism, work ethic, pride, and commitment to his breadwinner role in the family have kept him in the workforce to date. To his credit, he has steadily earned a greater income each year since the Accident….

[111]     The plaintiff submits that the totality of evidence, including the plaintiff’s work ethic and lack of concrete plans for retirement, supports a finding that he would retire at age 67, but for the Accident. That same work ethic is anticipated to keep the plaintiff in the workforce for approximately another three to four years to age 59-60, at which point his worsening right elbow condition will prevent him from being able to meet the needs of his occupation. This would equate to seven to eight years of lost income. Partial capacity may also be ascertained through a percentage-based diminishment of some or all years: Khademolhosseini v. Ji, 2019 BCSC 854 at para. 90. Contingencies and discount rates would also have to be taken into consideration. The plaintiff submits calculations based on s. 56 of the Law and Equity Act, R.S.B.C. 1996, c. 253, and the Law and Equity Regulation, B.C. Reg. 352/81, setting out discount rates used for present value future earnings, and the Civil Jury Instruction multipliers, taking into account inflation and general increases for years of lost income. I find this appropriate and useful: MacGregor v. Bergen, 2019 BCSC 315.

[112]     The defendants submit that the plaintiff is not entitled to an award as he is capable of working at his current level even with the pain he experiences. This disregards the long term effects of chronic pain on a person’s functional ability.

[113]     Given the skill level of the plaintiff, his reputation with his employer and the industry, and his own sense of joy and pride in his work, I find it is likely that the plaintiff will be able to work at his current performance level fulltime for at least three years but not likely more than five years. In my view, it is fair and reasonable to value the plaintiff’s loss of income earning capacity, taking into consideration the other various contingencies at play and discount rates, at $325,000.