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BC Court of Appeal: Past Capacity Awards Permissible Even Where Wage Loss Fully Mitigated

Written by admin on . Posted in ICBC Wage Loss, Uncategorized.

Important reasons for judgement were released yesterday by the BC Court of Appeal holding that an award for past diminished earning capacity can be made even when a plaintiff has fully mitigated their past wage loss.
In yesterday’s case (Ibbitson v. Cooper) the Plaintiff worked in the logging industry as a heli-faller.   He was injured in a collision and these injuries disabled him from his own occupation.  Despite this he was able to keep working in an alternate occupation which paid less.   By working longer hours at the lesser hourly rate the Plaintiff fully mitigated his past loss of income.  At trial the Court awarded the Plaintiff $95,000 for past diminished earning capacity.  The Defendant appealed arguing no award should have been made as there was no past wage loss.  The BC Court of Appeal disagreed and upheld the award.  In doing so the Court provided the following reasons for judgement:
[14] The issue on appeal may be stated in this way – did the trial judge err in giving an award for past loss of earning capacity in circumstances where the plaintiff had fully mitigated his loss of income but where the circumstances of his replacement employment required him to work longer hours?…

[19] While in many cases the actual lost income will be the most reliable measure of the value of the loss of capacity to earn income, this is not necessarily so. A hard and fast rule that actual lost income is the only measure would result in the erosion of the distinction made by this Court in Rowe: it is not the actual lost income which is compensable but the lost capacity i.e. the damage to the asset. The measure may vary where the circumstances require; evidence of the value of the loss may take many forms (see Rowe). As was held in Rosvold v. Dunlop, 2001 BCCA 1 at para. 11, 84 B.C.L.R. (3d) 158, the overall fairness and reasonableness of the award must be considered taking into account all the evidence. An award for loss of earning capacity requires the assessment of damages, not calculation according to some mathematical formula.

[20] In this case, the respondent clearly suffered as a result of the accident; he can no longer perform the job he was engaged in prior to the accident. He has suffered a pecuniary disadvantage as he needs to work longer hours to maintain his approximate pre-accident level of income.

[21] The trial judge considered pre-trial earnings both before and after the accident, explaining that calculating a precise value for the extra hours was a difficult task, and chose to assess the damages “at large”. Had Mr. Ibbitson worked the same amount of hours post-injury as he had pre-injury, he surely would have been found to have suffered a compensable loss of earning capacity. His entitlement to such damages does not disappear due to his industrious efforts to maintain his level of income, exceeding his legal requirement to mitigate. I agree with the trial judge’s conclusion and analysis.

Undeclared Income Compensation and the Reality of Trial Testimony

Written by admin on . Posted in ICBC Wage Loss, Uncategorized.


As previously discussed, while income loss from ‘under the table’ earnings can be recovered in a personal injury claim in BC, doing so often requires testifying to untruthful past tax filings with respect to past earnings.  The papertrail this creates puts plaintiffs with undeclared earnings in a difficult position if they seek to recover damages for their full losses as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Wong v. Hemmings) the Plaintiff was injured in two collisions.  She worked as a server for the Fairmont Hotel.  As with many servers, her income was derived from wages and tips.  Her injuries impacted her vocational abilities and damages were awarded for past and future diminished earning capacity.  In presenting her case the Plaintiff presented evidence as to her actual earnings which differed from her declared earnings to Revenue Canada.  Mr. Justice Fitch summarized this evidence as follows and provided the following comments with respect to her undeclared earnings:

[75] It is noteworthy that the plaintiff was informed by the Fairmont, in writing, in early 2011 that her gratuities from credit card sales alone for 2010 were $30,652.82. The plaintiff was advised by her employer that, “this information may be helpful to you when you are preparing your 2010 tax return”.

[76] The plaintiff testified that she makes about $63,000.00 a year. She said it is her practice to declare about $5,000.00 in tip income each year. She is aware that she is obliged to declare all income, including tips and gratuities, on her tax return. She testified that she was, “following industry standard” in not declaring the full amount of her tips and gratuities. She testified that she does not know anyone in the restaurant service industry who declares the full amount of their tips. Having said that, the plaintiff admitted knowing that failing to declare all of her tips and gratuities was wrong. She testified that she could not have supported herself and her daughter had she declared and been taxed on the full amount of her income. She testified that, consistent with her past practice, it was not her intention to declare the full amount of her tip income on her 2011 tax return…

[125] The defendants assert that the plaintiff should not be granted a past wage loss award that includes undeclared tips. They assert this position to preserve an ability to argue the issue in another forum as counsel for the defendants otherwise concedes that this Court is bound by Iannone v. Hoogenraad (1992), 66 B.C.L.R. (2d) 106 (C.A.), leave to appeal dismissed [1992] S.C.C.A. No. 185, which holds that failure to declare tip income is no bar to the recovery of undeclared tips as past wage loss.

[126] The defendants also submit that the plaintiff has failed to establish what she would have earned in gratuities on her cash sales. As noted above, the Fairmont’s records reflect only the total amount of the plaintiff’s cash sales as a server. Any tip received by a server on a cash sale would be known only to them. The defendants point out that in 2006, for example, and assuming an average 12% tip on cash sales, the tips received by the plaintiff on cash sales represented 8.6% of her total tip earnings. Using this as a baseline, the defendants argue that the plaintiff’s past tip loss should be discounted by 8.6% to reflect the amount of cash tips allegedly lost but not proven.

[127] The defendants are, at least in theory, on firmer ground on this issue. Iannone stands for the proposition that the plaintiff has the burden of leading evidence of past wage loss and that it will be a difficult burden to discharge where there is no confirmatory evidence, such as income tax returns, to establish that the amount claimed would, in fact, have been earned. In this case, however, I am satisfied that the plaintiff has met her burden of proof on this issue. The records of the Fairmont Hotel clearly establish the total of the plaintiff’s cash sales as a server. The plaintiff testified that she would receive, on average, a 12% tip on her cash sales. I accept her evidence on this point.

Diminished Earning Capacity – Expert Fact vs Opinion

Written by admin on . Posted in Civil Procedure, ICBC Wage Loss, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with the admission of evidence relating to diminished earning capacity in which the Court highlights the ability of lost opportunities being proven through factual, as opposed to opinion, evidence.
In this week’s case (Fabretti v. Singh) Plaintiff was employed as a Regional Vice President at an independent financial services organization.  The Plaintiff was injured in a collision and advanced a claim for diminished earning capacity.
In the course of the claim the Plaintiff obtained a report from his employer’s National Sales Director who provided evidence with respect to the Plaintiff’s employment opportunities.  The Defendant objected to the admissibility of this report for a number of reasons.  Mr. Justice Savage ultimately held that the report was not admissible as it was not written by a ‘properly qualified expert‘.
The Court noted, however, that much of the evidence could likely be admitted simply as a matter of fact (as opposed to opinion).  In doing so the Court provided the following reasons:

[19] In this case, the subject matter of Mr. Andruschak’s Report is the plaintiff’s future earning capacity. However, Mr. Andruschak’s experience is properly viewed as concerning the earning possibilities for RVPs at Primerica generally; his experience is not in preparing objective reports on how such earning possibilities might manifest themselves in specific individual into the future.

[20] Thus, while having firsthand knowledge and experience in RVPs’ earning potential at Primerica, based on their actual earnings, which is information that may be useful to the Court, Mr. Andruschak does not offer particular expertise in the subject matter of the Report, purporting to prepare an objective estimate of future income and thus income loss for a specific person. As such, on the basis that Mr. Andruschak does not qualify as an expert, the Report cannot be admitted on that basis.

[21] Given my findings regarding Mr. Andruschak’s qualifications as an expert, it is unnecessary for me to canvass the defendant’s arguments regarding the Report’s formal compliance with the Rules. As I have said, however, much of the information in the report is potentially relevant and germane. I will leave it to counsel to review and discuss that matter amongst themselves. If required I will make further rulings on the proposed evidence. It may be that Mr. Andruschak’s evidence would be better presented simply viva voce with the assistance of a few graphs or charts.

The Diminished Earning Capacity Checklist

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It is always a welcome development when a complex area of the law is judicially drilled down to point form.  Last month Mr. Justice Savage of the BC Supreme Court did so with resepect to the law of ‘diminished earning capacity‘.  In last month’s case (Parker v. Lemmon) the Court provided the following useful breakdown:

[42] The approach to such claims is well set out in the decision of Garson J.A. in Perren v. Lalari, 2010 BCCA 140 at paras. 25-32, which I summarize as follows:

(1) A plaintiff must first prove there is a real and substantial possibility of a future event leading to an income loss before the Court will embark on an assessment of the loss;

(2) A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation;

(3) A plaintiff may be able to prove that there is a substantial possibility of a future income loss despite having returned to his or her employment;

(4) An inability to perform an occupation that is not a realistic alternative occupation is not proof of a future loss;

(5) It is not the loss of earnings but rather the loss of earning capacity for which compensation must be made;

(6) If the plaintiff discharges the burden of proof, then there must be quantification of that loss;

(7) Two available methods of quantifying the loss are (a) an earnings approach or (b) a capital asset approach;

(8) An earnings approach will be more useful when the loss is more easily measurable;

(9) The capital asset approach will be more useful when the loss is not easily measurable.

It is Common Sense that "Constant and Continuous Pain Takes its Toll"

Written by admin on . Posted in ICBC Fibromyalgia Cases, ICBC Wage Loss, Uncategorized.

Reasons for judgement were released today by the BC Court of Appeal making it clear that it is a matter of common sense that chronic pain can, over time, have a detrimental effect on a person’s ability to work.
In today’s case (Morlan v. Barrett) the Plaintiff was injured in a motor vehicle collision.  She was ultimately diagnosed with fibromyalgia.  At trial the Court awarded significant damages for diminished earning capacity despite the Plaintiff having no past loss of income.
The Defendant appealed arguing that the Judge erred in awarding these damages because the judge relied on “common experience that a person with a stable but persistent energy-draining condition will find it more difficult to continue working as he or she grows older“.  The Defendant argued that this was speculative and there was no evidence to suggest this is so.
While some of the Plaintiff’s damages were ultimately reduced, the BC Court of Appeal was quick to dismiss the above argument finding it was simply a matter of common sense that chronic pain takes its toll.  In doing so the Court provided the following reasons:
[41] Accepting that, to use the expression used at trial and at the hearing of this appeal, Ms. Morlan’s condition had “plateaued”, the fact remains that she would forever suffer from debilitating chronic pain along with headaches, symptoms that could be reduced, but not eliminated, by medication.  In other words, throughout each and every day of her life, Ms. Morlan would have to cope with some level of discomfort.  In my view, it was open to the trial judge to find—essentially as a matter of common sense—that constant and continuous pain takes its toll and that, over time, such pain will have a detrimental effect on a person’s ability to work, regardless of what accommodations an employer is prepared to make.

Employer Paid Wage Replacement Benefits Non-Deductible in Hit and Run Claims

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Section 106 of the Insurance (Vehicle) Regulation permits ICBC to reduce compensation by any amount paid by another “insured claim” in claims for injuries caused by unidentified motorists or uninsured motorists under section 24 and section 20 of the Insurance (Vehicle) Act .  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing whether wage loss benefits paid by an employer are an ‘insured claim‘.  In short the Court held that they are not.
In last week’s case (Loeppky v. ICBC) the Plaintiff, a police officer, was injured in a hit and run collision.  ICBC accepted the crash was caused through the fault of an unidentified motorist.  The Plaintiff sought compensation for his damages including past wage loss.  During his time away from work his employer paid him wage replacement benefits.  ICBC argued these payments were an ‘insured claim‘ and therefore had to be deducted from his ICBC claim.  Madam Justice Grey disagreed and refused to make the deduction.  The Court provided the following reasons:

[83] In my view, Mr. Loeppky’s wage replacement benefits do not constitute an “insured claim” under s. 106 of the Regulation, and therefore may not be deducted from Mr. Loeppky’s award.

[84] In Arklie v. Haskell (1986), 33 D.L.R. (4th) 458, 25 C.C.L.I. 277 (B.C.C.A.), McLachlin J.A., writing for the court at para. 26, held that a sum of money advanced by an employer to an employee that had to be repaid in the event of any recovery did not qualify as a benefit under the predecessor of s. 106.

[85] More generally, in Lopez v. Insurance Corporation of British Columbia (1993), 26 B.C.A.C. 142, 78 B.C.L.R. (2d) 157, Hollinrake J.A., writing for the court at para. 21, held that an “insured claim” for the purposes of the Regulations must still import at least some element of insurance. He went on conclude that payments made by reason of a contract of employment, without some evidence that they originate from an insurer, do not possess such an element of insurance.

[86] The sum of $6,804.77 was paid to Mr. Loeppky under the collective agreement between the Vancouver Police Union and the Vancouver Police Board. Under the terms of that agreement Mr. Loeppky must repay that amount if he recovers it in this action. There is no evidence that the payments originated from an insurer. Thus, it is not an insured claim under s. 106 and the defendant is not entitled to deduct it from any award.

$70,000 Non-Pecuniary Damages for Thumb Joint Injury

Written by admin on . Posted in ICBC Hand Injury Cases, ICBC Wage Loss, Uncategorized.


Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing non-pecuniary damages of $70,000 for a serious thumb injury.
In this week’s case (Dobre v. Langley) the Plaintiff cyclist was struck by a vehicle.  He suffered a right thumb “Bennett Fracture” (a fracture at the base of the thumb where it connects with the wrist).  The Plaintiff was 20 years old at the time of injury.  He required surgery to fix the fracture.  Unfortunately the Plaintiff was left with limitations of the thumb and these were expected to continue and worsen with age with the onset of post-traumatic arthritis.  In assessing the non-pecuniary damages at $70,000 Mr. Justice Brown provided the following reasons:

[58] While there are some discernible slight divergences between the opinions of Dr. Gropper and Dr. Smit, in substance they are not large ones. I accept that within the span of 15 years Mr. Dobre will experience some worsening of his degenerative arthritis that carries with it a risk that by middle age it could become severe and accompanied by a corresponding decline in function. There is also a chance Mr. Dobre could make his way into his middle age years without experiencing a significant decline in function, but the chances are greater that he will do so by then. While confident predictions about his needing future surgery are not possible, given the early onset of degenerative changes and the nature of his fracture, there is at least some risk he will require future surgery with doubtful benefit.

[59] Mr. Dobre feels dull intermittent pain at the base of his thumb, where the surgical nails were inserted. Moreover, his grip is weaker and his thumb is stiff. Prolonged grabbing and pulling brings the rapid onset of piercing pain. Prolonged writing causes discomfort and his thumb discomfort bothers him when he is writing university exams. In his part time job as a librarian, he finds he cannot hold many books when sorting them throughout the library. Due to his injury, he has to hold the books in an awkward position to avoid stressing the thumb…

[92] I find Mr. Dobre’s injuries are more akin to those in Tsougrianis, in which the 22 year old plaintiff suffered fractures to both thumbs, one of which required surgery, soft tissue injuries to her neck and back, and tendonitis.  The Court found the soft tissue injuries and tendonitis would heal within a year of the trial.  With respect to the thumb injuries, the Court found the plaintiff’s right thumb injury had largely resolved itself by trial and there was “not a substantial possibility” the left thumb injury was a permanent functional disability: Tsougrianis, at para. 35.  Furthermore, the Court found the plaintiff’s pain, strength and gripping difficulties in the left thumb would eventually disappear with exercise and further surgery, with the exception of “fine precision” handiwork:Tsougrianis, at para. 36. This is not the case for Mr. Dobre.   Given the permanence of Mr. Dobre’s right thumb disability and the likely onset of arthritis, his injuries, all factors considered, appear somewhat worse than those of the plaintiff in Tsougrianis.

[93] I find an award of $70,000 for non-pecuniary damages is appropriate in the circumstances if the $5,000 assessed for loss of home making/maintenance capacity is included in that amount. I therefore award $70,000 for non-pecuniary damages, an amount that includes a specific segment of $5,000 for loss of home making/maintenance capacity.

This case is also worth reviewing for the Court’s discussion of diminished earning capacity.   Given the Plaintiff’s young age he had no set pattern of earnings prior to the injury.  In these cases it is more difficult to predict the consequences of injury on long term employment.  Mr. Justice Brown assessed damages of $60,000 for diminished earning capacity in doing so made some practical comments at paragraphs 65-74 of the reasons for judgement.

What's Sex Got to do With It? Gender and Damages for Diminished Earning Capacity

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Imagine two individuals catastrophically injured due to the negligence of others.  The injuries will be totally disabling over the course of their lifetime.  The individuals are identical in every way except for their gender.  Statistics tell us that the man’s lifetime earnings absent injury would likely exceed those of the woman.  In these circumstances is it fair to award the woman less damages in a personal injury lawsuit for diminished earning capacity (future wage loss)?
The BC Court of Appeal addressed this issue in reasons for judgement released this week (Steinebach v. O’Brien).  In short the BC Court of Appeal held that while it is improper to reduce a female’s diminished earning capacity award based on “simply discriminatory” components, statistics as to the difference of lifetime earnings cannot wholly be ignored.  However, the Court went further and stated that it would be proper to offset this difference in part by adding an economic value to females statistically greater participation in child-rearing and housekeeping activities and addressing this in damages for pecuniary loss.   Mr. Justice Groberbam provided the following useful reasons for judgement:

[60] There are, in fact, a number of different components that account for the difference between women’s average earnings and those of men. Some are simply discriminatory – they reflect historical patterns of undervaluing the work that women do, and paying them less than men for similar work. The defendants appear to concede that such factors should not be used to reduce damage awards for infant female plaintiffs.

[61] It seems to me that such a concession is appropriate. It is no longer seen as acceptable that women should earn less than men simply by virtue of their sex. It would appear that such blatant discrimination is vanishing; in any event, the courts should not countenance such discrimination by incorporating it into damages awards.

[62] Others components of the difference between men’s and women’s average earnings may, indeed, reflect lifestyle choices. Of particular importance are patterns of earning related to childbearing and child-rearing. Women, to a much greater extent than men, leave the workforce or engage in part-time work so that they are able to bear and raise children.

[63] In MacCabe v. Westlock Roman Catholic Separate School District No. 110, 2001 ABCA 257, 96 Alta. L.R. (3d) 217, it was held that it was an error in principle for the trial judge not to have taken into account negative contingencies associated with childbirth and child-rearing in assessing future income loss for a female plaintiff who had indicated, before she suffered her injury, that she wished to have several children and would consider staying home with them…

[65] To some extent, I agree with the reasoning of the Alberta Court of Appeal. The fundamental purpose of tort damages is compensation of victims. It would be highly artificial to impose on that system of compensation a regime designed to deal with inequalities that are inherent in the lifestyle choices that people actually make.

[66] The difficulty I have with the approach in MacCabe, however, is that it treats child-rearing as an activity having no economic value. I do not believe that this reflects the reality for most parents who choose to withdraw from the paid workforce to raise children, or choose to take part-time work in preference to full-time work. Nor am I of the view that the law requires child-rearing to be treated as a non-economic activity.

[67] The value of child-rearing has long been recognized in the domain of family law. Spouses are treated as economic partners. Where one takes over child-rearing responsibilities that would otherwise have to be paid for or shared by a spouse, he or she is still seen as contributing to the family’s economic well-being, and this may have an effect on family asset division in the case of marital breakdown.

[68] This is not a mere quirk of family law, but the reality of most family units where one spouse withdraws from the workforce (or reduces his or her working hours) in order to raise children. Such a decision is rarely taken lightly, and is typically accompanied by a re-allocation of family resources rather than being a hardship suffered by the non-income-earning spouse alone.

[69] The burden of economic costs being a shared one, it can be misleading to represent it as simply being borne by the spouse who does not earn an income. Yet, for the purposes of earnings tables, this is exactly how the burden is reflected. For certain purposes, it would be more accurate to account for the shared burden by notionally transferring earnings from the income-earning partner to the partner who decreases his or her income in order to devote time and effort to child-rearing.

[70] Women are much more likely than men to leave the workforce temporarily or reduce their paid work in order to take on homemaking or child-rearing roles. The result is that earnings tables reflect the economic costs associated with such decisions as falling disproportionately on women. Earnings for men are thereby overstated, while those for women are understated.

[71] Even if it were to reject the idea of treating the costs associated with such decisions as shared ones, the Court would still have to adjust earnings table amounts to reflect the economic value of child-rearing. At one time, it may have been debatable whether a spouse who took on child-rearing or housekeeping responsibilities could claim compensation if, as a result of a tort, s/he became unable to continue to perform them (see Regina Graycar, “Hoovering as a Hobby and other Stories: Gendered Assessments of Personal Injury Damages” (1997) 31 U.B.C. L. Rev. 17). It is now established, however, that a person who undertakes housekeeping activities and is disabled from doing so can make a claim to pecuniary damages: Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178 (B.C. C.A.).

[72] It seems to me that, in line with Kroeker, the courts must not presume that the absence of monetary recompense for an activity necessarily means that pecuniary damages will be unavailable to a plaintiff who is disabled from engaging in it. Because earnings tables fail to account for the value of such unpaid activities as child-rearing and housekeeping, they will tend to represent under-estimates of a plaintiff’s loss of future earnings.

Lies, Damn Lies and Statistics: Present Value Tables and Your Personal Injury Claim

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No this post isn’t meant to take a swipe at economists, I just needed to get your attention since I’m discussing the ever exciting topic of positive and negative contingencies in creating present value tables.
Economic evidence often plays an important role in personal injury trials.  Competing experts often have different opinions as to which statistics should be used in valuing the present value of future losses.  Reasons for judgement were released this week by the BC Court of Appeal discussing these contingencies.
In today’s case (Towson v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was involved in a 2002 BC motor vehicle collision.  Her vehicle was struck by an RCMP officer who ran a red light.  While fault was disputed at trial the RCMP officer was found fully responsible for the collision.
The Plaintiff suffered various injuries including a traumatic brain injury resulting in a post-concussion syndrome.  This in turn was largely disabling.   The $1.1 million damage assessment included non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) of $185,000 and a diminished earning capacity assessment of $725,000.
The Government appealed for various reasons although they were unsuccessful with the trial award being largely upheld.   Among the unsuccessful arguments was an allegation that the trial judge erred in her assessment of diminished earning capacity.  In rejecting this argument the Court  provided the following comments about the different contingencies used by competing economists:

[30] The parties each called a witness to give expert opinion evidence in economics and both expert witnesses provided present value tables based on assumptions each specified.  The experts, Mr. Pivnenko for the respondent, and Mr. Hildebrand for the appellant, were both qualified to give opinion evidence in the area of economics.  Mr. Pivnenko provided present value tables regarding the cost of future care which were very similar to the figures Mr. Hildebrand provided.  However, the evidence given by the two experts diverged on the present value tables each provided for use in arriving at future loss of earning capacity.  The difference is readily explained by the assumptions each took into account.

[31] Mr. Pivnenko provided present value tables which took into account the survival rates for B.C. women but did not take into account any other contingencies.  Based on that assumption only, Mr. Pivenko stated that the present value of an annual sum of $1,000 per year from the trial date to the respondent’s 65th birthday was $22,716.

[32] Mr. Hildebrand’s present value tables took into account not only survival rates, but also negative labour market contingencies based on an average B.C. female high school graduate.  The latter contingencies he took into account included the individual’s propensity to participate in the labour force, part-time work, and unemployment.  Mr. Hildebrand applied a 40.1% discount for those contingencies, and, on that basis, he arrived at a present value of an annual sum of $1,000 per year from the trial date to the respondent’s 65th birthday of $13,609.  Mr. Hildebrand also testified that the overall contingency applicable to B.C. men with the same degree of education would be 20% to 25% rather than 40.1%….

[37] A review of Mr. Hildebrand’s evidence in cross-examination shows that in using a 40.1% negative labour market contingency, he was reflecting only negative contingencies and he agreed that the individual circumstances of a claimant would have to be considered in arriving at any percentage contingency adjustment.

[38] It is plain from her reasons that the judge did not accept that Mr. Hildebrand’s 40.1% negative labour market contingency ought to be applied, without modification, to a projection of the respondent’s likely income from employment to age 65.  The judge found, among other things, that the respondent was “in a better position than the average B.C. high school graduate at the time of the accident, because of her job at the [Justice Institute]”.  The judge also found “a realistic chance” that the respondent “would have attained promotions, and that she would have continued to work despite having children”.

[39] It is also plain from her reasons that the judge did apply a negative contingency discount well beyond the survival rates for B.C. women, which Mr. Pivnenko had used to arrive at the present value of an annual sum of $1,000 per year from the trial date to the respondent’s 65th birthday of $22,716…

[41] For the trial judge to arrive at the present value figure to be applied in this case, taking into account both positive and negative contingencies, could not be an exercise in precision.   To the extent that such an exercise is susceptible of explanation, the trial judge provided more than adequate reasons.  From her reasons, it is plain that she considered the respondent’s chances of recovery to be poor.  In view of that finding, and the legal principles she set out by reference to relevant case authorities, I see no reason to conclude that the trial judge overlooked the slight chance of the respondent recovering to the point of being able to seek some employment.

More on Mitigation of Damages: Working When Your Doctor Says Stop

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As previously discussed, if you sue for damages as a result of personal injuries you have a duty to minimize you losses.  If you fail to take reasonable efforts to do so the damages you are entitled to can be reduced.  This legal principle is called “failure to mitigate“.
The most common argument addressing mitigation relates to following doctor’s advice.  If a person fails to follow medical advice without good reason their damages can be reduced.  Earlier this week the BC Court of Appeal had an opportunity to address an interesting mitigation issue: Does a Plaintiff fail to mitigate their damages when they ignore their doctor’s advice to take time away from work?
In this week’s case (Bradshaw v. Matwick) the Plaintiff was in a 2006 rear-end crash.   Following the collision the Plaintiff’s doctor “recommended that the plaintiff stop working and enter into a full-time rehabilitation program.  He felt that the plaintiff’s recovery would be hastened by entering into such a program”  The Plaintiff did not follow this advice.  When asked why he explained that he simply could not afford time away from work testifying that “his financial situation was such that he needed to continue working“.
At trial the Plaintiff was awarded just over $268,000 in total damages for his injuries and loss.  The Defendant appealed arguing, amongst other things, that the trial judge erred in failing to reduce the damages for the Plaintiff’s failure to follow his doctor’s advice.  The BC Court of Appeal disagreed with this argument finding that the Plaintiff’s decision to continue working out of financial need was reasonable.  In dismissing this aspect of the appeal the Court provided the following helpful reasons:

[16]         The trial judge found that the plaintiff had acted reasonably in returning to work in August 2006, and that he had generally followed recommendations for rehabilitative exercise:

[40]          In regards to Mr. Bradshaw continuing to work in August 2006, against his doctor’s advice, Mr. Bradshaw had no choice.  The plaintiff had a less than accommodating employer.  The plaintiff was aware that in order to keep his job, he had to work at his job.  It would be reasonable for the plaintiff to conclude based on his job circumstances, that taking a substantial time off to recover would result in the loss of his job.  The effects for the plaintiff in this respect would be devastating.  He has worked for Rebelle for over twenty years.  He has limited reading and writing skills which would make any new job which would require training difficult for him.  It was not unreasonable for the plaintiff, in light of this circumstance, to make the decision to struggle on and hope for the best in his recovery while continuing to work.

[41]          Additionally, the plaintiff had significant commitments to a wife and two children.  He, at best, earns a moderate to good income in the $50,000 range.  It is highly unlikely that he could have survived on the modest wage loss funds available to him either through the defendants’ insurer or through the employment insurance program.  His wife, Ms. Bennett, has only ever worked part-time and although she no doubt contributes to the family expenses, the household consists of two adults, and two children, in a home they own with a mortgage.

[17]         On appeal, the defendants point to evidence from the plaintiff’s doctor to the effect that he would have given the plaintiff a medical note recommending full-time rehabilitation if one had been requested, and to the employer’s evidence that it would have given the plaintiff a leave of absence if such a note had been provided.  They also argue that the plaintiff presented only minimal evidence of his financial position in August 2006, and contend that the trial judge relied on inadmissible hearsay.  The defendants say that, in the face of that evidence, the judge’s finding that it was reasonable for the plaintiff to return to work represents a palpable and overriding error.

[18]         I am unable to accept the defendants’ assertion.  There was considerable evidence concerning difficulties in the relationship between the plaintiff and his employer.  In the circumstances, it was open to the trial judge to accept that the plaintiff had a reasonable apprehension that he might lose his employment if he did not return to work.  While the evidence of the plaintiff’s precise financial position in August 2006 was limited, there was sufficient information before the trial judge to allow him to conclude that the plaintiff’s financial position was not sufficiently secure to allow him to risk losing his job.

[19]         In any event, even if it had been unequivocally established that the plaintiff’s recovery was delayed by his decision to return to work in August 2006, it would not prove that the decision resulted in an exacerbation of his damages.  The plaintiff’s immediate wage losses were significantly reduced by his decision to return to work.  It is not at all apparent that any consequential increase in his non-pecuniary losses or subsequent wage losses would have offset the immediate gains.  Thus, the defendants have failed to show that the decision to return to work in August 2006 resulted in any net increase in the plaintiff’s damages.