"Common Sense" Used to Uphold Diminished Earning Capacity Award

Reasons for judgement were released this week by the BC Court of Appeal upholding an award for diminished earning capacity based on “common sense“.
In the recent case (Ali v. Glover) the Plaintiff was involved in two collisions and suffered chronic aggravation of degenerative issues in his neck and back.  The Plaintiff was able to continue working with his long-standing employer although some accommodations were made for limitations his injuries caused.  At trial the Court awarded $110,000 for diminished earning capacity on the basis that the Plaintiff’s injuries were permanent and very well could impact earning capacity in the future should he lose his present employment.
ICBC appealed arguing this award was rooted in speculation.  The BC Court of Appeal disagree noting it is simply a matter of common sense.  In upholding the assessment the Court provided the following reasons:
[19]         Mr. Ali’s case for damages for a loss in his earning capacity was based on the injury to his back precluding him from finding employment that would otherwise be available to him should the need arise.  The company for which he has worked for over 20 years has made adjustments to accommodate his limitations such that he does not do much of the “heavy lifting” that he once did, but for one reason or another his employment may be reduced in terms of the work available that he can do or be terminated altogether.  His loss is essentially one of a capital asset in that, because of his injury, he is less capable of earning income from all types of employment, less marketable, less able to take advantage of all employment opportunities which, save for his injury, may have been available to him, and less valuable to himself as an income earner, all as discussed in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.).  The judge concluded:
[157]    I am satisfied the plaintiff has proven there is a real and substantial possibility of loss of income earning capacity in the future. He has an accommodating employer but she may retire and sell or reduce his wage to one commensurate with the hours he is working on set up and supervising and not allow him to draw on a dwindling overtime bank. If he loses his job he is less valuable to himself and potential employers because he is not fully able to do physical work.
[20]         The appellants do not challenge the judge’s determination of the quantum of the award; they contend that no loss has been proven.  They maintain the judge’s conclusion is based entirely on speculation that Mr. Ali may not be able to continue working in his present capacity earning the salary he is paid.  But the fact remains, Mr. Ali’s marketability has been impaired by the injury he suffered; he is not capable of doing heavy physical work so some employment that would otherwise be available to him is now foreclosed.  The judge made no fundamental error in concluding, as she did, there was a real and substantial possibility of Mr. Ali being able to earn less income in the future and giving what amount to examples of why there is no assurance Mr. Ali will always be employed as he is earning the income he does.  What is said to be speculation devoid of evidentiary support is largely a matter of common sense. 
[21]         I would not give effect to the fifth ground of appeal.

Ali v. Glover, bc injury law, diminished earning capacity

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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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