BC Court of Appeal Strips Modest Diminished Capacity Award "As a Matter of Principle"

Reasons for judgement were released today by the BC Court of Appeal stripping a Plaintiff of modest damages awarded for diminished earning capacity.
In today’s case (Kim v. Morier) the Plaintiff was injured in a collision and sued for damages.   Despite her injuries she was able to work 12-15 hour days as a floor plan technician. She had no lost income by the time of trial.  Her injuries lingered and were expected to indefinitely though the “degree of disability would be mild, that her level of disability is “fairly small” “.
In overturning the $10,000 damage assessment for this loss the BC Court of Appeal provided the following comments on the evidentiary foundation needed for diminished earning capacity damages:
[6]           On appeal, the defendant submits that the Court erred in making an award under this head in the absence of a finding of a “real and substantial possibility” that Ms. Kim’s earnings in future would be impaired. The defendant relies in particular on Roberts v. Kidd (1998), 52 B.C.L.R. (3d) (C.A.), where Mr. Justice Hollinrake for the majority noted that it is not sufficient for an award under this head for the plaintiff to testify as to a loss of confidence or ability to project herself without showing a “functional” element. (Mr. Justice Lambert dissented on this point.) In the result in Roberts, this Court set aside the award for diminished income and incapacity.
[7]           More recently, in Perren v. Lalari, 2010 BCCA 140, 3 B.C.L.R. (5th) 303, this court emphasized at paras. 21, 32, and 33 the requirement for the plaintiff to meet the onus of showing at least a “real possibility” of future loss, as opposed to a theoretical loss. Similarly, in Steward v. Berezan, 2007 BCCA 150, 64 B.C.L.R. (4th) 152, the Court discussed the comment of Madam Justice Southin in Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44, to the effect that it was “impossible to say” the plaintiff in that instance would not suffer reduced earning capacity in the future. Mr. Justice Donald wrote in Steward at para. 17
But the language in question there was used in the context of appellate review and, with respect, it cannot be transposed to an original analysis at the trial level. 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: Parypa v. Wickware, 1998 BCCA 88, 169 D.L.R. (4th) 661¶ 65.
This is not a heavy onus, but it must be met for a pecuniary award to be justified.
[8]           In my view, the trial judge here did err in equating the loss of capital asset here with the plaintiff’s own perception. As the cases demonstrate, that is not enough. The plaintiff must show that it is a realistic possibility she will be less able to compete in the marketplace – with economic consequences, not merely psychological ones. In my view as well, the trial judge’s statement made after the award was pronounced, that Ms. Kim “may” be less capable of maintaining her disciplined approach to work also fell short. As we suggested to counsel this morning, the word “may” is essentially speculative and does not equate to a finding of a real possibility.
[9]           Mr. Carta said all that could be said in support of the award, but I agree with the defendants that as a matter of principle the findings here did not support an award for loss of earning capacity.
[10]        I would allow the appeal and set aside the award under this head. I would also order that the parties bear their own costs, given that this appeal was brought as a matter of principle.
 

Mathematical Aids Should Not Be Ignored When Assessing Diminished Earning Capacity

Reasons for judgement were released today by the BC Court of Appeal addressing the proper role of mathematical evidence in assessing damages for diminished earning capacity.
In today’s case (Jurczak v. Mauro) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff was awarded $110,000 in past wage loss at the time of trial for a period that spanned over 6 years.  The Court awarded a figure modestly above this for future losses despite findings that the Plaintiff would be limited for the duration of her working career, some 20 more years.  The Plaintiff appealed arguing the trial assessment was inordinately low.  The BC Court of Appeal agreed and substituted a substantially greater figure.  In addressing the proper role of mathematical/statistical evidence in diminished capacity assessments the BC Court of Appeal provided the following reasons:
[36]        This process is “an assessment rather than a calculation” and “many different contingencies must be reflected in such an award”: Barnes v. Richardson, 2010 BCCA 116 at para. 18. “Ultimately, the court must base its decision on what is reasonable in all of the circumstances. Projections, calculations and formulas are only useful to the extent that they help determine what is fair and reasonable”: Parypa v. Wickware, supra, at para. 70.
[37]        With that said, if there are mathematical aids that may be of some assistance, the court should start its analysis by considering them. For example, in Henry v. Zenith (1993), 31 B.C.A.C. 223 at paras. 44-48, 82 B.C.L.R. (2d) 186 (C.A.), this Court held that a trial judge’s failure to consider an economist’s projections of a plaintiff’s lost future earning capacity contributed to the judge committing an error in principle, which “resulted in a wholly erroneous estimate of the damages”.
[38]        In cases where the future is hard to predict, a global approach to assessing the loss of future earning capacity is preferable. However, in this case, given the trial judge’s findings of fact, the future is not hard to predict. Ms. Jurczak intended to become a DIR consultant prior to her injuries and because of those injuries she can only work 15 hours per week. The trial judge found as fact that if she was physically able to work 23 hours per week, there was sufficient demand for her skills that she would be able to bill for those hours.
[39]        Additionally, the award for loss of future earning capacity is supposed to compensate Ms. Jurczak for the next 20 to 22 years but is only $10,000 higher than the award for past wage loss.
[40]        In my view, there is a reversible error in the trial judge’s assessment of future loss of capacity. The trial judge’s award bears no correlation to the award for past income loss; nor does it accord with the trial judge’s findings regarding the effect of her injuries on her future ability to work
[41]        Ms. Jurczak does not dispute the trial judge’s findings of fact. Rather, she maintains the trial judge offered no explanation as to why he departed so significantly from the findings in the economist’s report, which he appeared to accept as credible and reliable. Her argument is premised on the assumption the trial judge pulled the figure of $120,000 out of thin air, without having regard to the economist’s calculations.
[42]        It is obvious from the trial judge’s analysis and reasoning that he rejected a purely mathematical approach to calculate Ms. Jurczak’s loss of a capital asset. Instead, it appears he followed the approach in Brown v. Golaiy and awarded Ms. Jurczak $120,000. While the award represents two to three times Ms. Jurczak’s average earnings before the accident and almost double her annual earnings afterwards, the amount has no foundation in the evidence.
[43]        The trial judge was entitled to reject a mathematical approach in the circumstances of this case. However, given his factual findings, in my view the award for loss of future earning capacity is so inordinately low as to amount to an error.
[44]        Having regard to the award for loss of future earning capacity or $110,000 representing a 6 year loss, and considering Ms. Jurczak has about 20-22 years to age 65 and possible retirement, I would increase the award for loss of future earning capacity to $400,000.

BC Supreme Court Confirms No Tax Deductions For Depleted Sick Bank Damages

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, confirming that where a Plaintiff proves damages for used up sick bank hours due to a collision related injury, the recovered damages will not be subject to income tax deductions (as is done with past wage loss awards).
In the recent case (Gormick v. Amenta) Mr. Justice Sigurdson made it clear that such damages will not be subject to income tax deductions and Plaintiff’s are entitled to recover damages on a gross basis.  In reaching this decision the Court provided the following reasons:
[5]             The authorities support awarding the gross amount for loss of sick bank credits…
[9]             As is evident from DeGuzman, treating loss of sick bank entitlement as past wage loss undercompensates the plaintiff because deductions could be taken from him or her twice.  This is consistent with Ballance J.’s characterization of loss of sick bank entitlement as a “potential future loss” not in the “character of past wage loss”.
[10]         In addition, the following cases have adopted Bjarnason without further comment in awarding the gross amount for loss of sick bank entitlement:
·                 Chingcuangoco v. Herback, 2013 BCSC 268 at paras. 128-133;
·                 Kilian v. Valentin, 2012 BCSC 1434 at paras. 125-127;
·                 Chalmers v. Russell, 2010 BCSC 1662 at para. 86;
·                 Pham-Fraser v. Smith, 2010 BCSC 322 at para. 90; and
·                 Rizzolo v. Brett, 2009 BCSC 732 at para. 67.
[11]         Contrastingly, the defendant in the instant case relies on Redl v. Sellin, 2013 BCSC 581, in which the court awarded the net and not the gross amount in respect of damages for lost benefits (including paid sick days, paid time off work for medical appointments and lost vacation credits).
[12]         In Redl, the court rejected the plaintiff’s position that “as full repayment of benefits to her employers appears to be required, the net loss calculation should not be applied to the total subrogated portions of the income loss claim” (at para. 33).  In this regard, the court said, at para. 34:
It is clear under the Insurance (Vehicle) Act that the defendant’s liability for all income losses – regardless of whether a subrogated interest is claimed by an employer or an insurer – is for the net amount only.  The rights of an insurer or employer claiming a subrogated interest in an employee’s damages claim are no greater than those of the employee.  The entire gross amount of Ms. Redl’s past income loss of $37,360.05 is subject to a deduction for taxes.  How this impacts Ms. Redl’s repayment obligations is a matter between her and her employers.
[13]         However, Redl make no note of Bjarnason or the other cases following that decision.  It appears that those cases were not brought to the attention of the judge deciding Redl. 
[14]         Further, the proposition which the defendant in the instant case extracts from Redl – namely, that “[t]he rights of an … employer claiming a subrogated interest in an employee’s damages claim are no greater than those of the employee” – is not inconsistent with Bjarnason.  Bjarnason holds that an employee has the right to the gross amount of damages in respect of loss of sick bank entitlement.  Accordingly, the employer claiming a subrogated interest in the gross amount of those damages is not claiming a greater right than that of the employee.
 

Court Criticizes ICBC's "Disappointing" Take On Diminished Earning Capacity Claim

The factors to be considered when assessing damages for ‘diminished earning capacity’ are well established in law.  Reasons for judgement were released today  by the BC Supreme Court, Kelowna Registry, addressing this and criticizing ICBC’s approach when valuing this loss.
In this week’s case (Tarasevich v.Samsam) the “plaintiff’s hips and sacrum were seriously injured in a motor vehicle accident“.  The injury was expected to pose long term problems requiring serial surgeries to address these issues in the future.   The injury caused chronic pain and impacted the Plaintiff’s working tolerance.   Despite this, ICBC argued that the long term injury will only have  a modest impact on the Plaintiff’s earning capacity because “the plaintiff was bound to become a sedentary office worker in any event and that because her physiatrist has said that despite her injuries she can engage in a full-time sedentary occupation, she will therefore not suffer a significant loss of future income“.
Mr. Justice Rogers rejected ICBC’s position and provided the following criticism:
[52]         To repeat: the defence’s approach to this head of damages is to assert that the plaintiff was going to be a sedentary office worker in any event and that because the evidence shows that she is likely to now follow that career path, she cannot be said to have suffered a loss. The defence asserts this proposition notwithstanding the uncontroverted evidence that the plaintiff’s hip and lower back injuries markedly limit her ability to do the kind of work that she actually did, and did well, before her injury.
[53]         It is disappointing that in this day and age, nearly 30 years after Brown v. Golaiy, a defendant would cleave to such a wrong-headed approach to a claim for reduction of earning capacity…
[56]         The plaintiff was a young person when she was injured. It is possible that she would have enjoyed sufficient success in retail sales and management that she would not have gone on to work in an office environment. It is equally possible that she would have taken office administration courses while still working full or part‑time and would have gone on to find employment in an office. The plaintiff’s history in the labour force was too brief to support a confident prediction of the direction her future would take. One cannot, therefore, say that the plaintiff’s loss may be calculated by measuring the delta between pre- and post-injury income streams. For that reason, I find that assessment is the appropriate methodology for this case.
[57]         The plaintiff has made a genuine effort to engage in work. She has tried and failed to work as housecleaner. She has tried and failed to work full-time in the same type of sales job she did before the accident. If the plaintiff does not pursue sedentary work but continues to work in sales or some other occupation that requires her to be on her feet for the majority of the day, I find that her stated preference for part-time work is reasonable given her symptoms and limitations. If she works part-time in a sales position, she will likely have more energy to look after her household and to participate in social activities and such recreational pursuits as she can still do. Working part-time will allow her to achieve some reasonable degree of balance between earning a living and having a life to live.
[58]         On the other hand, I find that as a result of her injuries the plaintiff’s best course of action will be to earn a Grade 12 diploma or its equivalent and then to enroll in a course of post-secondary that will qualify her for employment in an office environment. Even in an office environment, the plaintiff will be a generally less desirable employee than her able-bodied colleagues. In order to work full-time, the plaintiff will need a sympathetic employer who is willing to accommodate her limitations.
[59]         In either case, the plaintiff’s participation in the labour force will be interrupted by serial hip replacement surgeries.
[60]         For these reasons, I have concluded that the proper award for reduction of the plaintiff’s earning capacity is $250,000.

Lack of Business Records Negativley Impacts Diminished Earning Capacity Claim

When a self employed individual fails t properly account their business income and expenses this can create difficulties in advancing a claim for diminished earning capacity.  Reasons for judgemetne were released this week by the BC Supreme Court, Victoria Registry, demonstrating this.
In this week’s case (Musgrove v. Elliot) the Plaintiff was involved in two collisions.   The Defendants admitted liability.  THe Plaintiff sustained vaiours injuries which were still symptomatic at the time of trial.  He was self employed as a builder of residential decks and fences.  The Plaintiff’s injuries negatively affected him at work such that he had to rely more heavily on subcontractors and labourers to do work he otherwise would have done himself.  The Court accepted this, however, awarded only a fraction of the damages the plaintiff was seeking for these losses based on the Plaintiff’s lack of corroborating records.  In doing so Mr. Justice  Johnston provided the following reasons:
[56]         In late 2007 Mr. Musgrove moved to the Victoria area and began to establish himself in his own business as a fence and deck builder. He had perhaps 10 months to build that business before the first of his two accidents, and in that time he kept lamentably few records of his earnings or expenses.
[57]         There is thus little reliable evidence of what Mr. Musgrove actually earned before the first accident, and evidence of actual earnings is usually the most reliable basis on which to assess damages for income losses claimed as a result of an accident.
[58]         Mr. Musgrove’s poor record keeping habits continued after the accidents, leaving little upon which to base a confident assessment of what he has earned since the first accident, or what he has paid out to others to do work he says he could and should have been able to do himself but for his injuries…
[72]         I am satisfied that as a result of the injuries he suffered in the accidents, Mr. Musgrove had to hire others to do work that he would have done himself had he not been injured. This represents a loss to Mr. Musgrove for which he should be compensated.
[73]         Mr. Musgrove must accept responsibility for the consequences of his poor or non-existent records. One such consequence may be an award lower than it might have been had he kept proper records. In all of the circumstances, I assess Mr. Musgrove’s loss of earning capacity at $20,000 from the time of the accident to trial.

Insufficient Reasons Lead To Retrial Of Diminished Earning Capacity Award

Update May 27, 2014After reassessment the trial judge assessed damages at the original amount
___________________________________________________
Reasons for judgement were released last week by the BC Court of Appeal sending a case for re-trial after a judge failed to adequately explain how substantial damages for diminished earning capacity were assessed.
In the recent case (Morgan v. Galbraith) the Plaintiff was injured in a 2006 collision. He worked as a senior account manager at the Royal Bank of Canada at the time.  Following the crash he returned to this job with accommodation until his contract expired.  From there he never returned to work at the bank instead he pursued a career in professional lacrosse.  This chapter of his life ended with a concussion suffered in 2011.  By the time of trial he was working as a basketball and lacrosse coach.
At trial it was found that the Plaintiff suffered from ongoing injuries from the collision.  His diminished earning capacity was assessed at $700,000.  The BC Court of Appeal found that the reasons supporting such an assessment were lacking from the trial judgement and the matter was sent back to trial for reassessment of this loss.  In doing so the BC Court of Appeal provided the following reasons:
[54]         The economic evidence relied on by Mr. Morgan quantified lifetime earnings of a sport coach in Oregon at $883,004.  The judge did not explain the basis of his $700,000 assessment.  This amount approximates 80% of lifetime earnings of a coach, notwithstanding that Mr. Morgan is now employed as a coach.  I do not mean to imply that the assessment must be a mathematical calculation.  Rather, my point is that there must be findings of fact on which to base the assessment.  Here, the reasons for judgment on this point are not sufficient to permit appellate review.  The judge gave no hint as to the factual basis on which he reached the conclusion that on these facts $700,000 was an appropriate measure of Mr. Morgan’s future damages.  The judge did compare this case to another similar case, but, in my view, that would not be an appropriate way to assess what is essentially a pecuniary damage award.  I do not consider that it is appropriate for this Court to infer from the judge’s reasons the necessary findings of fact in order to substitute a different award or to affirm the correctness of the award. 
[55]         The judge could well have chosen the earnings approach given that Mr. Morgan was likely to pursue a career in sport regardless of the accident and that doing so after the accident was possible but with limitations.  The judge made no findings concerning the extent of those limitations.  As I have concluded that the appropriate disposition of this appeal is to remit the question of the assessment of damages for future loss of earning capacity to the judge, I will leave to the trial judge the question of the appropriate approach to adopt.  To reiterate, I agree with Mr. Morgan that on a proper evidentiary basis the judge has already found that there is a loss of future earning capacity under the Perren test.  He need not reconsider that finding.  But it will be necessary for him to revisit the assessment on a proper factual underpinning.
[56]         If the assessment is still to be based on the capital asset approach the judge must consider the four questions in Brown in the context of the facts of this case and make findings of fact as to the nature and extent of the plaintiff’s loss of capacity and how that loss may impact the plaintiff’s ability to earn income.  Adopting the capital asset approach does not mean that the assessment is entirely at large without the necessity to explain the factual basis of the award: Morris v. Rose Estate (1996), 23 B.C.L.R. (3d) 256 at para. 24, 75 B.C.A.C. 263; Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43, 63 B.C.A.C. 145.
[57]         In conclusion, on this ground of appeal, I would remit the question of the quantification of future loss of earning capacity to the trial judge to reassess damages in accordance with these reasons.

Diminished Capacity Claims Open Door To Broad Cross Examination

Reasons for judgement were released this week by the BC Court of Appeal addressing the broad scope of permissible cross examination when a Plaintiff advances a claim for diminished earning capacity.
In this week’s case (McBryde v.Womack) the Plaintiffs were injured in various motor vehicle collisions.  Their claims proceeded to trial by Jury where only modest damages were assessed. The Plaintiffs appealed arguing numerous errors including the scope of the cross examination discussing government financial benefits that were received.  The Court of Appeal held that no overriding errors occurred at trial and upheld the Jury verdict.  In finding the broad cross examination fair game the Court provided the following comments:
[40]        Ms. Golestani contends that she should not have been cross-examined about receiving government financial assistance when immigrating to Canada or about leaving her studies to pursue the business opportunity with Mr. McBryde. Ms. Golestani initiated proceedings to recover damages from some of the respondents, and in so doing placed a number of matters in issue, including her earning capacity and her occupational goals. In my view, the cross-examination complained of was an attempt to explore these issues, and did not exceed the permissible limits of cross-examination. 
 

Possibility of Jail Not a "Negative Contingency" When Assessing Diminished Earning Capacity


This week the BC Court of Appeal provided reasons explaining that it is not appropriate for a judge or jury to reduce damages for diminished earning capacity when there is a possibility the Plaintiff will be incarcerated in the future.
In this week’s case (Albert v. Politano) the Plaintiff was seeking substantial damages for a collision caused injury which impeded him in his usual occupation.  Prior to his injury trial the Plaintiff was charged with a criminal offence which he was disputing.  The Defendant argued that the jury could consider the possibility of conviction and incarceration in assessing injury caused diminished earning capacity.  In finding this inappropriate the BC Court of Appeal provided the following comments:
 42]        I do not agree the judge erred as alleged. I reach this conclusion for three reasons. First, the judge was not asked to give the instruction now advocated, notwithstanding the opportunity given to counsel to comment on the proposed instructions. Second, there was no evidence upon which a jury could assess the value of such a contingency. Third, and most important, I do not consider it would have been appropriate for the jury to reduce the future damage award for the negative contingency of a possible future jail sentence, in the circumstances before the Court. Mr. Albert stood in the courts, and in the community, as innocent until proven guilty. Even if proven guilty, there was no certainty that he would receive a jail sentence. In my view, it would have been entirely speculative for the jury to reduce the damage award to reflect the chance that he might be convicted on the outstanding charges. This is unlike the case relied upon by the appellants, British Columbia v. Zastowny, [2008] 1 S.C.R. 27, (2008) S.C.C. 4, wherein the Supreme Court of Canada, on appeal from this court, affirmed the appropriateness of a deduction in damages to take account of a period of incarceration that was established as a fact at the trial.

BC Court of Appeal Upholds Canadian National Boxing Champions $1,000,000 ICBC Hand Injury Case


(Cross-Published at the Canadian MMA Law Blog)
Last year a Vancouver Jury awarded professional boxer  Jegbefumere ‘Bone’ Albert  just over $1,000,000 following a traumatic hand injury caused in a motor vehicle collision which negatively impacted his boxing career.  He was a professional cruiser weight at the time with a 4-0 professional record and a 251-3 amateur record.  The collision caused a chronic hand injury which flared with training/fighting.  The Jury accepted this impacted him in his chosen profession and awarded substantial damages for diminished earning capacity.
ICBC appealed arguing numerous errors at the trial level.  In unanimous reasons for judgement (Albert v. Politano) the BC Court of Appeal dismissed ICBC’s appeal and in doing so the Court provided the following comments addressing the lost opportunity of the plaintiff –
[50]        This brings us to the assessment of damages itself. The appellants say that each of the heads of damages assessed is wholly out of proportion to the evidence before the Court.
[51]        Damages are a question of fact and we may interfere with the quantum, absent an error of law or principle, only if there is a palpable and overriding error.
[52]        I deal with the loss of earning capacity first. I conclude, from the fact the jury awarded a significant sum, that the jury rejected the appellants’ submission that Mr. Albert would have withdrawn from a boxing career, soon after the accident, in any event. Clearly Mr. Albert had boxing ability. The jury must have considered that his boxing ability was diminished as the result of the injuries from the accident. It is true that Mr. Albert did not earn very much money from boxing prior to the accident. It is also true that there was not a great deal of evidence about the size of the purses available in professional boxing. Nonetheless there was some evidence. Witnesses from the world of boxing did testify to some extent as to the purses won in certain matches, particularly in Canada. There was evidence, therefore, before the jury from which they could conclude that Mr. Albert had the skills to fight for, and win, purses in the time between the accident and the trial, amounting to $60,000. The period of past loss is close to four years. The sum awarded is well within the range of the purses that were discussed in the evidence as available, in Canada, over that period of time. Given the positive evidence as to Mr. Albert’s abilities, one cannot say the award of $60,000 for past income loss is unsupported by the evidence, disproportionate, or wholly erroneous.
[53]        I have come to the same conclusion in respect to the award for future loss. That sum may be a small portion of what Mr. Albert otherwise would have earned, or it may be more than he would have earned. We do not know. There was, however, evidence of his considerable abilities and evidence of the purses available in the boxing world, even in Canada, that would support an award of $838,000. I would not interfere with the award for future loss of earnings.
I‘d like to thank Vancouver lawyer John Cameron for sharing this development with me for publication.
 

"Nonsensical" Objection to Statistical Evidence Rejected

Statistics have their place in trial.  When proving average earnings of certain occupations the shortcut of referencing statistical data can be of great value and save time and money.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing this.
In last week’s case (Smith v. Fremlin) the Plaintiff was injured in a 2009 collision.  She was a recent law school graduate at the time just entering her career in law.  It was found that, as a result of the injury, she likely could not compete in private practice and would have lifelong limitations in her working capacity.  The Plaintiff introduced statistical evidence of the present day value of a lifetime of earnings for legal professionals.  The Defendant objected to this arguing witnesses of fact instead should be called to address this.  In rejecting this “fundamentally flawed” objection Mr. Justice Groves provided the following reasons:
[43]         Counsel for the defendants took significant objection to the report of Robert Wickson.  At trial, I rejected their argument that the report should not be admitted as evidence.  The substance of that argument is worth considering in these Reasons. 
[44]         It was the position of the defendants that any report which attempts to provide evidence to the court as to average income of persons within certain employment designations is fundamentally flawed.  It was the position of the defendants that the court should require the plaintiff to produce evidence of persons, working as practicing lawyers, who could testify as to what they earn.  The suggestion was further made that these witnesses should be women practicing law in British Columbia. 
[45]         One must keep in mind that all parties appear to have agreed to this matter being litigated under the Fast Track model in three to four days.  It is nonsensical to require a party to prove a claim by calling a potentially large number of witnesses, in this case, female lawyers in British Columbia of the same age, to testify.  It is folly not only as to the time and cost, but also as to the possibility of finding this information in advance.  It would require people to willingly disclose their income.  Additionally, it is folly when one considers the number of persons that would have to be called to create any level of statistical reliability. 
[46]         What this Discovery Economic Consulting report shows is that for persons who fall within the NOC classification of ”Lawyers and Quebec Notaries”, the potential earning capacity is approximately $1.94 million over the course of their career.  Importantly, the persons that fall within this classification are a much larger body of persons then simply practicing lawyers.  Although numerous types of lawyers and notaries are included in this classification, it also includes judicial assistants, advisory counsel, articling students, advisors of law and corporate affairs, and a number of other job classifications which may not require law degrees, such as legal officers and legislative advisors. 
[47]         I accept that this report is evidence of lifetime capacity for someone with the career path that Ms. Smith was undertaking.  In fairness, however, the number should be increased as a number of persons falling within the classification are not lawyers and employed in occupations, likely to be earning less, such as articling students.  I find that working to age 69 is not unreasonable.  As such, I would find that a reasonable dollar figure for lifetime earnings for a lawyer is $2,000,000.

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ERIK
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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