Filling in the Gaps – Lack of Expert Evidence and Future Wage Loss Awards

Generally when a Plaintiff advances damages for diminished earning capacity (future wage loss) in a personal injury lawsuit expert evidence is called to address the long term prognosis and consequences of a Plaintiff’s injuries.  Interesting reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, making such an award despite the lack of medical opinion evidence addressing the issue.
In today’s case (Helgason v. Bosa) the Plaintiff was involved in a 2006 motor vehicle collision.  Her vehicle was t-boned by the Defendant.  Fault for the crash was admitted.  The trial focused on the value of the Plaintiff’s claim.
In support of her case the Plaintiff attempted to introduce two medico-legal reports written by her GP.  The first report, dated May 11, 2009 stated that “You have asked me to comment with regard to [the plaintiff’s] loss of earning capacity.  I do not feel that [the plaintiff] is less capable overall from earning income from all types of employment and I do not feel she is less marketable or attractive as an employee to potential employers as a result of the motor vehicle accident.”
As time passed the doctor changed her mind and wrote a second report indicating that the Plaintiff’s injuries would cause a diminished earning capacity.  The Defendant argued that the second report did not comply with the Rules of Court and that it should be excluded from evidence.  Mr. Justice Silverman agreed.  This left the Court with only the doctor’s first report providing an opinion of the Plaintiff’s future earning capacity.
The Defendant’s lawyer then argued, given the first report, the Court should not make an award for diminished earning capacity.  Mr. Justice Silverman disagreed and filled in the gaps addressing this issue with factual evidence presented at trial.  The Court went on to award the Plaintiff $45,000 for this loss and in doing so provided the following helpful reasons:

[48]         It does not follow from my ruling that I must conclude that the doctor’s opinion as of May 11, 2009, was still her opinion at trial.  Clearly, it was not.  However, the most significant consequence of my ruling is that there is no expert opinion in evidence with respect to future issues to support the plaintiff’s argument that I should be awarding damages for various of the plaintiff’s future concerns.

[49]         It does not necessarily follow from that, that the plaintiff is unable to mount an argument that there is still a sufficient basis for me to make the findings that she argues are appropriate.  The plaintiff argues that there is still sufficient evidence for me to draw the inferences which she argues I should draw, even without the opinion expressed in the inadmissible report.  It is noteworthy, in that regard, that when the defendants argued for the ruling with respect to admissibility, one prong of its argument was that the non-compliant report was not “necessary” because there was already other evidence with respect to the various future issues.

[50]         I am satisfied that indeed there is other evidence from which various inferences about the future might be drawn.  That other evidence consists of the following:

1.       Comments in the admissible report that do make projections into the future which are consistent with the position that the plaintiff takes:

“I do not think that [the plaintiff] has reached maximum medical improvement and she will continue to improve over the next 18 – 24 months.”

“Her present employment as a yard planner has a potential to exacerbate her symptoms.”

“I am not advising that [the plaintiff] change her current employment, but I will agree that her current employment does exacerbate her symptoms to a moderate degree.”

2.       The plaintiff’s own evidence at trial of her ongoing difficulties.

3.       The doctor’s oral evidence about various visits of the plaintiff since May 11, 2009, and the observations which she made (although her opinion arising from those visits was not admissible)….

[52] I am satisfied from the foregoing that the injuries, and other difficulties caused by the MVA, are ongoing and will continue to be ongoing, and will negatively affect the plaintiff’s capabilities and abilities in the future.