Diminished Earning Capacity Awards Without Past Wage Loss

(UPDATE February 9, 2012:  The Damages in the below case for Diminished Earning Capacity and Cost of Future Care were reduced somewhat by the BC Court of Appeal on February 9, 2012)

A common misconception is that a person cannot claim for diminished earning capacity (future wage loss) in an ICBC Claim when there has been no past wage loss.  As I’ve previously discussed, this simply is not true.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In last week’s case (Morlan v. Barrett) the Plaintiff was injured in two separate motor vehicle collisions.  Fault was admitted by the Defendants in both actions.  The Court found that both crashes caused a single indivisible injury (chronic widespread pain eventually diagnosed as fibromyalgia).
The Plaintiff’s injuries and limitations caused her to change employment to a job that was less physically demanding.  Fortunately, her new job paid a better salary and the Plaintiff had no past wage loss from the time of her first crash to the time of trial.  Her injuries, however, were expected to cause ongoing limitations and the Plaintiff claimed damages for diminished future earning capacity.  Mr. Justice Stewart agreed the Plaintiff was entitled to these damages and assessed the loss at $425,000.  In reaching this assessment Mr. Justice Stewart gave the following useful reasons:
[7] The plaintiff found work at the Electrical Industry Training Institution (EITI) in 2008 and is employed there as a Program Coodinator.  The job is far less demanding and the commute is only 20 minutes.  The job is also far less rewarding in terms of job satisfaction.  Having to change jobs was a huge blow and this will be reflected in the non-pecuniary damages I award later.  By happenstance the plaintiff’s salary actually went up when she switched jobs.  For that reason there is no claim for loss of earning capacity to the date of trial.  But there is a claim for loss of opportunity to earn income – including benefits – in the future…

[17]        Pure happenstance resulted in her suffering no loss of income to the date of trial, i.e., she got a less demanding job which happened to pay more than her job at the B.C. Fed.  But a reduction in her capacity to earn income has been made out.  Her having to give up her job at the B.C. Fed demonstrates that the circle of secretarial or administrative positions for which she could, if necessary, compete has been narrowed.  (Exhibit 6, a “Functional Capacity Evaluation” and Exhibit 5, the report of an “Occupational Health Physician” simply confirm the obvious.)  To put it in familiar terms:  she is less marketable as an employee; she is less capable overall from earning income from all types of employment; she has lost the ability to take advantage of all job opportunities which might otherwise have come her way; and she is less valuable to herself as a person capable of earning income in a competitive labour market (Rosvold v. Dunlop, 2001 BCCA 1 at paragraph 10).  The live issue is whether there is a real and substantial possibility that the reduction in her capacity to earn income will in fact result in lost income – including benefits – in the future (Sobolik v. Waters, 2010 BCCA 523, paragraphs 39-43).

[18]        As noted earlier, having considered the whole of the evidence placed before me I rely on the evidence of the plaintiff’s family physician, Dr. Beck, as I peer into my crystal ball and consider the plaintiff’s future.

[19]        The fact that the balance of the medical evidence does not replicate what Dr. Beck said at Exhibit 4 page 6 – that the plaintiff has “plateaued even slightly worsened over the past year” – and indeed the evidence of the rheumatologist, Dr. Shuckett is quite different – is neither here nor there as having considered the whole of it I say as the trier of fact that Dr. Beck was an impressive, thoughtful witness of great experience who offered up her opinion against a background of having dealt with the plaintiff for 25 years and, more particularly, having had close supervision of the plaintiff’s medical condition since January 6, 2007 and the advent of the motor vehicle accidents.  In saying that I have not lost sight of the fact that Dr. Beck has in fact retired.

[20]        Having considered the whole of the evidence together, I say that three real and substantial possibilities have been made out:  that the plaintiff’s condition will improve; that the plaintiff’s condition will remain as it is; and that the plaintiff’s condition will worsen.  In “giv[ing] weight according to their relative likelihood” to these three hypothetical events I find that the possibility of her condition improving barely rises above mere speculation and that the possibility of her remaining the same and the possibility of her condition worsening are both great (Athey v. Leonati, [1996] 3 S.C.R. 458 at paragraph 27).

[21]        I find that there most certainly is a real and substantial possibility that the reduction in the plaintiff’s capacity to earn income will result in lost income – including benefits – in the future.  Beyond the fact that nothing in life is certain and that she may yet find herself on the job market there is the real and substantial possibility that even if she remains in her current job until the end of her working career, her working career will end earlier than it would otherwise have absent the effects on the plaintiff of the defendants’ negligence.  That is so because it is a real and substantial possibility that her fibromyalgia will remain as it is but common experience dictates that as one moves into one’s latter years the ability to work in spite of a condition that drains one’s energy diminishes.  Independently of that, it is a real and substantial possibility that the plaintiff’s fibromyalgia – and with it loss of energy – will worsen.  I make that finding having considered the whole of the evidence including that of the plaintiff as to her recent experience and of all of the doctors and concluded as the trier of fact that I rely most on the evidence of Dr. Beck.

[22]        I take into account factors beyond those that relate to the state of the health of the plaintiff and her ability to work.  The plaintiff has established a real and substantial possibility – not mere speculation – that had she not had to forfeit her job at the B.C. Fed she would have, within a few years of the date of the motor vehicle accidents, taken advantage of an opportunity to perhapsmove up in the hierarchy of the B.C. Fed to the point of becoming a Director and with that received an increase in salary and benefits.  That is the net effect of the evidence of the plaintiff and of Lynda Bueckert.  Moreover, as of January 6, 2007 the plaintiff had to assume that she would retire from the B.C. Fed when she turned 65.  After January 6, 2007 the law changed.  I find that the plaintiff’s love for her job at the B.C. Fed combines with my picture of what she was before January 6, 2007 and results in my accepting her evidence to the effect that it is a real and substantial possibility that absent the defendants’ negligence she would have continued to work at the B.C. Fed even after she had turned 65.  I have considered the positive and negative vagaries of life, i.e., the contingencies.  Having considered the whole of it I award the plaintiff $425,000.