Tag: diminished earning capacity

Increased Earnings Are Not A Barrier to Diminished Earning Capacity Damages

As the BC Court of Appeal recently confirmed, it is not ‘wage loss‘ that is compensible in a personal injury lawsuit but rather ‘diminished earning capacity‘.  With this in mind it is important to remember that damages for diminished capacity can be available in circumstances where there is no past wage loss and even in cases where a Plaintiff’s earnings increase following a collision.  Reasons for judgement were released this week by the BC Supreme Court, Nelson Registry, with such a result.
In this week’s case (Brechin v. Pickering) the Plaintiff was injured in a 2007 collision.  Liability was admitted focusing the trial on an assessment of damages.  The Plaintiff suffered various soft tissue injuries to his neck, knee and shoulder.  He worked as an electrician and took ‘very little time off‘.  In addition to this the Plaintiff’s earnings increased in the years following the collision as follows:
[52]  Mr. Bredin’s work history since 2002, shows the following pattern:
2002  $49,991
2003  $29,917
2004  $23,866
2005  $64,256
2006  $40,059
2007  $68,986
2008  $84,142
2009  $80,255
2010  $99,802
The Plaintiff’s injuries were expected to linger and although he could continue to work in his own occupation he was limited in tasks ‘at the heavier end of the scale‘.  As a result the Court awarded damages for diminished earning capacity.  In doing so Mr. Justice McEwan provided the following reasons:
[78]  What emerges from Ms. Mihalynuk’s evidence is a portrait of a person who is rather self-contained, proud of his work and inclined to do very little on his time off..
[80]  Mr. Brechin is now 42 years old in a setting in which he may retire in 15 to 20 years.  There are significant physical demands in the work some of the time, although as he continues to take leadership roles, he is likely to work more often at a reduced physical level of strain.  The primary concern for his future is whether he will be able to continue to retirement without interference from the effects of the accident…
[83]  I accept that work at the heavier end of the scale ought to be avoided, and that he could probably not stay in an occupation that demanded continuous heavy labour.  In the field in which he is employed, however, this does not appear to be expected.
[99]  The possibility of a future event is not specifically that Mr. Brechin will be laid off because of his condition, which is relatively unlikely, given that the medical evidence suggests that his condition is not disabling, but the more general vagaries of business that have made employment “for life”, once a common expectation, highly uncertain.  Should Mr. Brechin lose his position for such a reason he would be put back into a competitive environment where a fraction of the heaviest work would be lost to him…
[100] In this case, that involves a consideration of the medical evidence; Mr. Brechin’s age and likely working life; the relative stability of his employment at Fortis; the possibility that either Mr. Brechin’s condition, or larger workplace and market forces will change his situation, and the prospects he could have were that to happen.  It seems clear that Mr. Brechin could work but that to some extent this range of opportunities would be limited at the heavier end of the work.  The degree to which this is attributable to the accident diminishes over time as age and other factors come into play.  I think it would be an error to assume the same capacity for heavy work in a 50 year old, that one would find in someone significantly younger.  Doing the best I can to assess these factors, I fix $60,000 for future loss of income due to the diminishment of his capacity viewed as a capital asset.  I have done so, bearing in mind his present income earning capacity, which is an improvement over the years before the accident, but that the injuries suffered in the accident may reduce, somewhat, his broader opportunities to work as an electrician.

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

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.

Diminished Earning Capacity – Expert Fact vs Opinion

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


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"

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.

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


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.

Gazing at the Crystal Ball: ICBC Claims and Future Wage Loss


If you are injured through the fault of another and your injuries effect your ability to earn a living you can seek compensation for ‘diminished earning capacity‘.  Valuing this loss requires an assessment instead of a mathematical calculation.  Since these losses are ‘assessed‘ this gives rise to a wide latitude of legally justifiable awards. This latitude was discussed in Reasons for Judgement released yesterday by the BC Court of Appeal.
In yesterday’s case (Mackie v. Gruber) the Plaintiff was injured in a 2006 BC motor vehicle collision.  At trial the Plaintiff was awarded almost $250,000 including $130,000 for loss of future earning capacity.
Both the Plaintiff and ICBC appealed this award.  The Plaintiff argued it was too low claiming that the judge made a “palpable and over-riding error” in failing to consider the fair value of the Plaintiff’s entrepreneurial capacity.   ICBC appealed arguing that the award was too high since “the Plaintiff returned to work within two weeks of the accident and her past loss of earnings up to the date of trial was only $19,546“.
The BC Court of Appeal held that the trial judge did not err and dismissed both appeals.  In doing so the Court provided the following reasons addressing the wide latitude of permissible results in quantifying diminished earning capacity:

[18]         Quantifying an award for loss of future earning capacity is a notoriously difficult judicial task given the multitude of factors and future uncertainties at play. It is not a mathematical calculation, but a matter of assessment and judgment, guided by the basic principle that a plaintiff is entitled to be placed in the same position she would have been in but for the accident, and directed at producing an award that is reasonable and fair to all parties: Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158.

[19]         In Pallos, the case referred to by the trial judge, Mr. Justice Finch set out a number of approaches to this task:

[43]      The cases to which we were referred suggest various means of assigning a dollar value to the loss of capacity to earn income. One method is to postulate a minimum annual income loss for the plaintiff’s remaining years of work, to multiply the annual projected loss times the number of years remaining, and to calculate a present value of this sum. Another is to award the plaintiff’s entire annual income for one or more years. Another is to award the present value of some nominal percentage loss per annum applied against the plaintiff’s expected annual income. In the end, all of these methods seem equally arbitrary. It has, however, often been said that the difficulty of making a fair assessment of damages cannot relieve the court of its duty to do so. In all the circumstances, I would regard a fair award under this head to be the sum of $40,000.

[20]         I am not persuaded that the trial judge’s approach in this case resulted in an award that was unfair or unreasonable. In my view, both the appeal and cross-appeal must fail.

Over Two Million Dollars Awarded in Chronic Pain Claim

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for loss related to chronic pain.
In last week’s case (Zen v. Readhead) the 45 year old plaintiff was injured in a 2005 motor vehicle collision.  Fault for the crash was admitted by the Defendant.    The Defendant’s lawyer argued that the plaintiff sustained only minor injuries submitting that the plaintiff “is an opportunist who has intentionally exaggerated his pain behavior and reporting in the hope of being rewarded significant compensation.”
The Court did not take kindly to this attack and rejected the Defendant’s submission with the following criticism “There are times when a trial judge listening to submissions about the credibility of a party is left to wonder if judge and counsel have heard the same evidence. This is such a case.”
The Court went on to award the Plaintiff damages of just over 2 Million Dollars for his accident related injuries and losses.  The majority of this was related to past and future income loss.  The Plaintiff was a high functioning Vancouver businessman and his losses were assessed reflecting his pre-accident income earning capacity.
Madam Justice Fenlon assessed the Plaintiff’s non-pecuniary damages at $110,000.  His injuries included low back and pelvic pain, headaches, a mood disorder, impaired sleep, dizziness, cognitive dysfunction, elbow pain and plantar fascitits.   In arriving at this figure the Court provided the following reasons:

[54]         Awards of damages in other cases provide a guideline only. I must apply the factors listed in Stapley to Mr. Zen’s particular case. Mr. Zen is now 45-years-old. He used to be an outgoing, charismatic athlete who weekly ran 40 kms, did the Grouse Grind, and took an active role in the lives of his daughters, all while working long days in the family business including most Saturdays. Today he is a different man. He is sleep-deprived and in chronic pain, which makes him irritable and prone to frustration and anger. He can no longer push himself athletically, which was a central part of his life and the way he managed stress. He has a diminished role in the lives of his daughters, and in particular his youngest daughter, Olivia. Mr. Zen’s relationship with his wife has been significantly affected and he has, in his words, “missed out on the best years of [his] life”.

[55]         Taking all of this into account and excluding from this analysis the pain and inconvenience caused by his left knee before the March 2010 surgery, I find that Mr. Zen is entitled to non-pecuniary damages of $110,000.

"Demystifying" Mild Traumatic Brain Injury


(Update: the Defendant’s Appeal of the below judgement was dismissed by the BC Court of Appeal on February 7, 2012)
Many of you may be aware of ICBC’s current “demystifying” campaign.   There are many misunderstood topics related to injury lawsuits and one of the most prominent is that of mild traumatic brain injury (MTBI).  Reasons for judgement were recently released by the BC Supreme Court, Chilliwack Registry, demystifying some of the arguments that are commonly raised in opposition to these claims.
In today’s case (Madill v. Sithivong) the Plaintiff was involved in a 2004 BC motor vehicle collision.  The Plaintiff’s vehicle was struck on the passenger side by the Defendant’s vehicle.  The issue of fault was admitted by the Defendant with the trial largely focussing on the value of the Plaintiff’s claim.
The collision was not significant, from a vehicle damage perspective, causing little over $1,700 in damage to the Plaintiff vehicle.   Despite this the Plaintiff suffered a traumatic brain injury in the crash.  ICBC argued that the injuries were not serious in part because the vehicle damage was modest, the Plaintiff had a ‘normal‘ Glasgow Coma Scale score of 15/15 noted on the ambulance crew report and that the hospital records relating to the treatment of the Plaintiff noted that he suffered from “No LOC (loss of consciousness)” and “zero amnesia“.
The Plaintiff called evidence from Dr. Hunt, a well respected neurosurgeon, who gave evidence that the above facts were not determinative of whether the Plaintiff suffered from serious consequences related to MTBI.  Madam Justice Morrison was persuaded by Dr. Hunts’ evidence and accepted that the Plaintiff suffered from long term consequences as a result of an acquired brain injury.  In rejecting the defence arguments Madam Justice Morrison provided the following ‘demystifying‘ reasons:

[112]     Dr. Hunt said he tries to concentrate on the individual.  He finds it helpful to see the notes of the family doctor, which deal with initial complaints, as do the notes of the ER doctor and responders.  But he notes that those doctors are very busy, and things get overlooked.  The same is true with an ambulance crew.  Dr. Hunt stated there may be no loss of consciousness, but there may be a loss of awareness.  An ambulance crew may give a 15 score for the Glasgow scale, indicating normal, but that could be misleading.  He also noted that someone may be described as being in good health pre-accident, but that would not mean he would not have issues.

[113]     Dr. Hunt disagreed that the best evidence of whether the plaintiff was an amnesiac, were notes at the hospital of “no LOC” and “zero amnesia”.  It was the evidence of Dr. Hunt that no matter how many times you see those terms, that a patient is alert and wide awake, that sometimes in looking at crew reports, the necessary information is not there.  A person does not need to strike his head for a concussion to have occurred.  It need only have been a shaking.

[114]     It is important to explain what a mild traumatic brain injury is, he stressed; Dr. Hunt referred to the many concussions in sports.  He said it is important to look at what happened following the accident, what symptoms have occurred and are continuing to occur.  Patients often deny a loss of consciousness or a loss of awareness, and it may be so fleeting that they may well be unaware.  But if the head has been shaken or jarred enough, this will equal a concussion, which is the same as a mild traumatic brain injury.  There may be no indication of bruises on the head, but it still could be a concussion.  Dr. Hunt noted that something prevented the plaintiff from exiting the vehicle, so the Jaws of Life was used.

[115]     Dr. Hunt noted that Dr. Tessler agreed that the plaintiff had a cerebral concussion in his initial report, but it was the opinion of Dr. Hunt that Dr. Tessler was not up to date on mild traumatic brain injuries.

[116]     In his evidence, Dr. Hunt listed some of the symptoms that are compatible with a concussion having occurred:  headaches, altered vision, balance difficulties, general fatigue, anxiety, memory disturbance, inability to manage stress.  “A concussion is a mild traumatic brain injury.  We no longer grade concussions.”

[117]     I found Dr. Hunt to be an excellent witness.  He was cautious, detailed, thoughtful, low key, thorough and utterly professional.  In cross-examination, he gave a minor clinic on mild traumatic brain injuries.  He was subjected to a rigorous, lengthy and skilful cross-examination, which only served to expand upon and magnify his report and opinions.

[118]     He commented on the history of Mr. Madill prior to the accident, pointing to a number of things that may have caused excessive jarring or shaking of the head, even if there had been no symptoms of concussion.  He believes that the first responders’ observations are not always accurate as to what actually happened.  He said he himself may not have identified problems of concussion at the scene of the accident.  Ninety percent of people with concussions have headaches.  They have difficulty describing the headaches, and they are not the same as migraine or tension headaches.

[119]     Dr. Hunt was further critical of Dr. Tessler in opining that Dr. Tessler had diluted his opinion, and that he had concerns with the report of Dr. Tessler.  He felt that Dr. Tessler was still “in the dark ages” with regard to mild traumatic brain injuries, that he has not had the advantages that Dr. Hunt has had in working with sports brain injuries.  “Concussion is cumulative.”

[120]     I found the report and the evidence of Dr. Hunt persuasive.  He came across as an advocate of a better understanding of concussions or mild traumatic brain injuries, not as an advocate on behalf of the plaintiff.

In addition to the above, two other topics were of interest in todays’ case.  Evidence was presented by ICBC though private investigtors they hired who conducted video surveillance of the Plaintiff.  The Court found that this evidence was of little value but prior to doing so Madam Justice Morrison made the following critical observations:

[74] Much of the videotaping occurred while both the plaintiff and the private investigator were moving on streets and highways, driving at the speed of other traffic.  The investigators testified they drove with one hand on the wheel and the other hand operating the video camera, up at the side of their head, to allow them to view through the camera what they were taping.  That continues to be their practice today, according to at least one of the investigators, which was interesting, considering from whom they receive their instructions, a corporation dedicated to road safety.

Lastly, this case is worth reviewing for the Court’s discussion of diminished earning capacity.  In short the Plaintiff was self employed with his spouse.  Despite his injuries he was able to continue working but his spouse took on greater responsibility following the collision.  The Court recognized that the Plaintiff suffered from a diminisehd earning capacity and awarded $650,000 for this loss.  Paragraphgs 193-210 of the judgement contain the Court’s discussion of this topic.

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.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

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.

“Work hard, be kind and enjoy the ride!”
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