Tag: diminished earning capacity

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.

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.

Mechanical Back Pain and Diminished Capacity For Stay at Home Parents Discussed


Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, discussing non-pecuniary damages for mechanical back pain and further discussing awards for ‘diminished earning capacity‘ for stay at home parents who intend to return to the workforce.
In this week’s case (Bergman v. Standen) the Plaintiff was involved in a 2006 motor vehicle collision.  Fault for the crash was admitted by the other motorist.  The Plaintiff was 27 years old at the time of the crash and did not have “an established record of employment because of the conscious choice she and her husband made to have and raise their children to school age with the benefit of a stay-at-home-mother”.
The Plaintiff sustained injuries in the crash which included soft tissue damage and mechanical back pain.  Some of these symptoms were expected to be permanent although there was room for improvement with further therapy.  Mr. Justice Barrow assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000.  In arriving at this figure the Court provided the following reasons:
[63] To summarize, Ms. Bergman was a 27-year-old mother of two young children, who suffered a Grade II whiplash injury to her neck and upper back, which resolved after several months and left her with no recurrent symptoms. She also suffered contusions, bruises to her face and chest, and a sore wrist, which resolved without ongoing difficulties shortly after the accident. Finally, and most significantly, she suffered a mechanical injury to her lower back that, I am satisfied, caused her significant pain and discomfort in the four and a half years since the accident. I am not persuaded that the discomfort is as significant as Ms. Bergman describes it, but it is nevertheless significant. I am satisfied that her lower back will remain symptomatic indefinitely. If, however, she follows the advice of Dr. Travlos and others, and commits to a program of physical conditioning and determines to work through the limitations that her low back may present, rather than dwelling on them, the degree to which that injury will affect her life in the future will moderate. In light of this, I am satisfied that an appropriate award for non-pecuniary damages is $77,500. This amount includes $2,500 for past loss of housekeeping capacity for reasons I will explain below.
This case is also worth reviewing for the Court’s discussion of diminished earning capacity (future wage loss) awards for Plaintiffs who are out of the workforce at the time of their injuries.   As previously discussed there is nothing preventing such plaintiffs from being awarded damages for future wage loss given the right circumstances.  In assessing the Plaintiff’s loss at $65,000 Mr. Justice Barrow provided the following useful reasons:
[80] Ms. Bergman does not have an established record of employment because of the conscious choice she and her husband made to have and raise their children to school age with the benefit of a stay-at-home mother. I accept that Ms. Bergman planned to and will return to work when her youngest child reached school age. I accept that the sort of work she is destined to do will likely involve an emphasis on physical as opposed to mental exertion. There is a mill in Lavington that Ms. Bergman thought about applying to. She impresses me as the sort of person who would find work of that nature rewarding and challenging. It is with a view to those real and substantial possibilities that the question of her indefinite, albeit moderating disability, needs to be assessed….
[84] I recognize that Dr. Coghlan, in his September 21, 2009 report, concluded that he would “not restrict her activity level in terms of jobs on the basis of today’s findings”. I am not sure that the opinions of the physiatrists are in conflict. Whether they are or not, I am satisfied that Ms. Bergman has established an impairment of her capital asset, being her ability to earn an income in the future. Valuing that loss is necessarily an imprecise exercise. Lacking any better measure, I consider that an award equivalent to between one and two years of Ms. Bergman’s likely future annual income to be reasonable. I fix her loss of future earning capacity at $65,000.

Wage Loss Claims for Stay-At-Home Parents Intending on Returning to the Workforce


Although stay-at-home parents are becoming less and less common many parents still take several years away from the workforce to raise their children in their infant and pre-school years.  Often times these parents intend to return to work after their children attend school on a full time basis.
When a parent in these circumstances becomes disabled from working due to the fault of another can they make a claim for loss of income in their tort action?  The answer is yes provided there is evidence establishing  a likelihood of returning to employment absent the accident related disability.   Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with this area of law.
In last week’s case (Carr v. Simpson) the Plaintiff was seriously injured in a 2005 motor vehicle collision.  The Defendant admitted fault and further admitted that the crash injured the plaintiff but took issue with the value of her claims for various damages including for income loss.
The Plaintiff, a 39 year old mother of three at the time of the collision, was out of the workforce for several years prior to the crash.  She spent these years working as a home-maker and raising her children.  She undertook some modest employment as a house cleaner shortly prior to the crash.  Following the crash she became disabled and did not return to any work from the time of the crash to the time of trial.
The Court accepted the Plaintiff sustained serious, permanent and partly disabling injuries due to the crash.  The Plaintiff sought damages of $84,000 for lost income from the time of the crash to the time of trial.  She argued that she had planned on returning to the work force once her children became school-aged (which was around the time of the crash) but was precluded in doing so as a result of her injuries.  The Defendant disagreed arguing that the Plaintiff suffered only a modest loss of income because of her “inconsistent work history (and) lack of incentive to work because of income from other sources.
Mr. Justice Bernard sided with the Plaintiff and awarded her most of what she sought for past income loss.  In doing so the Court provide the following useful reasons addressing the reality that parents that leave the workforce to raise young children can still succeed in an income loss claim:

[132]     I reject the notion that Ms. Carr’s unemployment history during her child-rearing years made her return to the workforce less realistic or less likely. Ms. Carr did not harbour fanciful ideas about her capabilities, her income-earning potential, or her opportunities for employment. When her youngest child reached school age, Ms. Carr was relatively young, energetic, able-bodied, willing to work hard, prepared to accept modest wages in exchange for her labours, and was fortunate to have a brother who could offer her steady, secure, and reasonably well-remunerated employment.

[133]     The evidence establishes that Ms. Carr, shortly before the collision, was motivated to earn some income (e.g., from housecleaning) until her youngest child was enrolled in school; thereafter, she planned to seek more fulsome employment. I do not accept the defence submission that Ms. Carr lacked the incentive and/or need to earn an income; to the contrary, since she has been unable to work because of her injuries she has, with some reluctance, turned to her mother for ongoing loans of relatively large sums of money, just to get by.

[134]     Ms. Carr became a single parent as of June 1, 2005. I find it highly likely that this new status would have impelled her to take the employment her brother offered, and to do so immediately. Her newly poor economic circumstances would have necessitated that Ms. Carr make child-care arrangements to bridge the time until her youngest child was in school in September 2005, and would have motivated her to work as many hours as she could manage as a single parent. Similarly, I am satisfied that she would have made any necessary arrangements for the care of her father.

[135]     I also find it is highly likely that Ms. Carr, as an employee of her brother, would have worked the hours and received the rates of pay assumed by Mr. Bush in his calculations. I find it is most unlikely that the seasonal aspect of the work would have reduced Ms. Carr’s overall income. Any shortage of work in the slow season would be offset by the demands of the busy season, and I am satisfied that Ms. Carr would have adjusted her life, accordingly.

[136]     While I am unable to agree with the plaintiff’s submission that in the determination of past wage loss there should be no reduction for negative contingencies, I am satisfied, for the relatively predictable period in question, the reduction must be minor.

[137]     Having regard for all the foregoing, I assess the plaintiff’s past wage loss at $75,000.

This case is also worth reviewing for the Court’s discussion of non-pecuniary damages.  The Plaintiff sustained numerious injuries including soft tissue injuries to her neck and upper back, Thoracic Outlet Syndrome, headaches and dizziness, a right hand and wrist injury which required surgery, a meniscus tear that required surgery, low back pain and depression related to chrobic pain.  In assessing non-pecuniary damages at $100,000 Mr. Justice Bernard provided the following reasons:

125]     Ms. Carr has, at age 44, many years ahead of her. As a result of the defendant’s negligence, Ms. Carr has been permanently partially disabled and left with constant and chronic pain. Since the collision, Ms. Carr has undergone two surgeries and endured considerable pain and discomfort. Ms. Carr has developed TOS and surgery is not recommended. She suffers from clinical depression related to the negative effect her injuries has had upon her, her family, and her way of life. Ms. Carr’s mental acuity and concentration has slipped. Ms. Carr’s marriage ended six months after she sustained her injuries. Her husband was unsympathetic and frustrated by her lack of desire for sex due to her discomfort. Ms. Carr has been rendered unemployable for most jobs in a competitive market. She is now unable to enjoy most leisure activities and active social pursuits with her children. She has a special fondness for horses and gardening, but meaningful participation in activities related to these interests is no longer feasible. Ms. Carr has lost much of the satisfaction from gainful employment, and the purpose and dimension it gives to life. In short, the negligence of the defendant has had a profoundly negative and lasting impact upon Ms. Carr.

[126]     I agree with the plaintiff’s position that the Djukic case is most similar of the proffered cases on its facts. I also agree with the defendant’s submission that Ms. Djukic’s pain was more severe than that of Ms. Carr; otherwise, I am persuaded that Djukic a useful reference point for the upper end of a general damages award in this case; and that Cimino is instructive in determining the lower end.

[127]     Having regard to all the foregoing, I assess Ms. Carr’s general damages at $100,000.

The Inability to Afford Therapy and the Duty to Mitigate Damages


As I’ve recently written, a Plaintiff has a duty to ‘mitigate‘ their losses after being injured otherwise the damages they are entitled to can be reduced.
The most common example of the ‘failure to mitigate’ defence comes up in personal injury claims where defence lawyers argue that a Plaintiff would have recovered more quickly and more completely had they followed through with all of the suggestions of their medical practitioners.  If evidence supporting such an argument is accepted then the Plaintiff’s award can be reduced.
What if a Plaintiff can’t afford to purchase all the therapies/medications recommended by their physicians?  Can their damage award be reduced in these circumstances?  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with this issue.
In this week’s case (Trites v. Penner) the Plaintiff, an apprentice plumber, was injured in a forceful rear end collision in 2005.  Fault for the crash was admitted by the rear motorist.  The trial focused on the value of the Plaintiff’s claim.
The Plaintiff suffered various soft tissue injuries.  He followed a course of therapy in the months that followed and enjoyed some improvement in his symptoms.  During his recovery ICBC (the Plaintiff’s insurer for ‘no fault’ benefits) discontinued “funding for (the Plaintiff’s) efforts at rehabilitation.”
At trial the Defence lawyer argued that the Plaintiff should have followed through with these therapies in any event and that his damages should be reduced for failure to mitigate.   Madam Justice Ker disagreed and took the Plaintiff’s inability to pay for his therapies into consideration.  The Court provided the following reasons:

[209] Financial circumstances are certainly one factor to consider in the overall reasonableness assessment of whether a plaintiff has failed to mitigate their losses.  What is reasonable will depend on all the surrounding circumstances.  One significant factor in this case however, is that as Mr. Trites was on his upward climb to recovery, ICBC determined that it would discontinue funding his efforts at rehabilitation.  As a consequence, Mr. Trites was left to fund his continued rehabilitation on his own.  Instrumental to continuing his recovery and functioning was not only attendance at the gym but other treatment modalities including massage therapy and chiropractic treatments and taking prescription medication.  All of these items had significant benefits to Mr. Trites but they also carried with them significant costs.  In the first half of 2007, Mr. Trites was unable to fund all these aspects of treatment and chose the prescription medication as it was essential to his pain management on a daily basis.

[210] I find that in these circumstances, Mr. Trites’ decision not to continue with a gym pass on a monthly basis for the first six months of 2007 was not unreasonable.  This is not a case where the plaintiff has refused to take recommended treatment.  Rather Mr. Trites was engaged in all aspects of the recommended treatments and ICBC was, until December 2006, paying for them.  Thereafter ICBC unilaterally discontinued paying for these treatments, notwithstanding the fact that Mr. Trites was not yet fully recovered.  I cannot find that Mr. Trites acted unreasonably in determining how best to try and pay for all the treatment modalities that had been working for him in assisting his rehabilitation but were no longer going to be paid for by ICBC and were beyond his limited means at the time.  As Smith J. noted in O’Rourke v. Claire, [1997] B.C.J. No. 630 (S.C.) at para. 42 “it does not lie in the mouth of the tortfeasor to say that a plaintiff in such circumstances has failed to mitigate by failing to arrange and pay for his own rehabilitative treatment.”

[211] Accordingly, I find that the defence has not discharged its burden of establishing that Mr. Trites failed to mitigate his losses in this case.

You may be wondering if ICBC is allowed to, on the one hand deny a Plaintiff rehabilitation benefits, and on the other have the Defendant’s lawyer argue at trial that the Plaintiff should have pursued these benefits and therefor reduce the Plaintiff’s award.  The answer is yes and you can click here to read a previous article discussing this area of law, and here for the latest from the BC Court of Appeal on this topic.
Today’s case is also worth reviewing for the Court’s discussion of non-pecuniary damages and diminished earning capacity.
The Court accepted that the Plaintiff suffered moderate soft tissue injuries to his neck and back and these had a ‘guarded’ prognosis for full recovery.   $75,000 was awarded for his non-pecuniary damages and the Court’s reasons addressing this can be found at paragraphs 188-198.
The Plaintiff was also awarded $250,000 for diminished earning capacity.  He was an apprentice plumber and, despite his injuries, was able to continue to work in this trade in the years that followed the collision.  However he struggled in his profession and there was evidence he may have to retrain.  The court’s lengthy discussion addressing his diminished earning capacity can be found at paragraphs 213-239.

How Much Is My BC Injury Claim Worth? – A Video Discussion

Here is a video I recently uploaded to YouTube discussing some of the factors that go into valuing a BC Personal Injury Tort Claim:

One of the most frequent questions I’m asked as a BC Personal Injury Lawyer is ‘how much is my claim worth?’.
This is an important question for anyone injured through the fault of another in British Columbia.  When negotiating with ICBC (or another Insurance company) the playing field is typically imbalanced in that the Claims Adjuster has lots of experience in valuing personal injury claims.   Unless you are an injury claims lawyer you understandably would have little experience in valuing these claims and may need help valuing your losses.
It is important to empower yourself for the negotiation because in tort claims the insurer is negotiating on behalf of the person that injured you.  With this in mind, here is a brief video introduction discussing some of the common ‘heads of damages‘ that are frequently addressed in BC personal injury lawsuits.  I hope this information is of some assistance and helps to balance the playing field.

BC Court of Appeal Clarifies Law in Future Wage Loss Injury Claims


When a Plaintiff suffers lasting injuries as a result of the negligence of others the law allows for compensation of future losses.   When it comes to future earnings being impacted by injury the Courts in BC do not compensate “loss of earnings” but rather a “a loss of earning capacity“.
There is a feeling amongst some personal injury lawyers that the BC Courts have handed out contradictory judgements regarding the circumstances required to prove a diminished earning capacity claim.  Today the BC Court of Appeal addressed the law of diminished earning capacity and added some welcome clarity to these types of claims.
In today’s case (Perren v. Lalari) the Plaintiff was injured in a 2004 BC car crash.  She was found to have suffered from chronic soft tissue injuries that will continue indefinitely.  According to the trial Judge the injuries rendered “the plaintiff less marketable than she was before the accident but not in a way that demonstrates any substantial possibility that she will suffer an associated loss”  The Judge went on to award $10,000 for the Plaintiff’s diminished earning capacity.  (You can click here to read my 2008 article about this trial judgement).  Interestingly the Trial Judge invited the Court of Appeal to canvass this area of law stating that “It would be helpful if the Court of Appeal has an opportunity to address these issues fully”
The Defendant appealed the judgement arguing that the Judge was wrong in law in awarding money for dimished earning capacity on the facts of the case.  The BC Court of Appeal agreed and in doing so provided the following useful summary of the law:

[30]         Having reviewed all of these cases, I conclude that none of them are inconsistent with the basic principles articulated in Athey v. Leonati, [1996] 3 S.C.R. 458, and Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229.  These principles are:

1.         A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation [Athey at para. 27], and

2.         It is not loss of earnings but, rather, loss of earning capacity for which compensation must be made [Andrews at 251].

[31]         Furthermore, I conclude that there is no conflict between Steward and the earlier judgment in Pallos.  As mentioned earlier, Pallos is not authority for the proposition that mere speculation of future loss of earning capacity is sufficient to justify an award for damages for loss of future earning capacity.

[32]         A plaintiff must always prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang, and by Tysoe J.A. in Romanchych, that there is a real and substantial possibility of a future event leading to an income loss.  If the plaintiff discharges that burden of proof, then depending upon the facts of the case, the plaintiff may prove the quantification of that loss of earning capacity, either on an earnings approach, as in Steenblok, or a capital asset approach, as in Brown.  The former approach will be more useful when the loss is more easily measurable, as it was in Steenblok.  The latter approach will be more useful when the loss is not as easily measurable, as in Pallos and Romanchych.  A plaintiff may indeed be able to prove that there is a substantial possibility of a future loss of income despite having returned to his or her usual employment.  That was the case in both Pallos and Parypa.  But, as Donald J.A. said in Steward, an inability to perform an occupation that is not a realistic alternative occupation is not proof of a future loss.

[33] On the facts of this case, the trial judge found that there was no substantial possibility of a future event leading to an income loss.  That should have been the end of the enquiry.  That was a reasonable conclusion on the evidence because there was no evidence that she was limited in performing any realistic alternative occupation.

$80,000 Non-Pecuniary Damages for Chronic Pain and PTSD

Reasons for judgement were released today by the BC Supreme Court awarding damages for injuries and loss as a result of a 2007 BC Car Crash to a previously disabled Plaintiff.
In today’s case (Viner-Smith v. Kiing) the Plaintiff was previously disabled with depression and other medical issues.  In 2007 he was involved in a rear-end car crash.  The Crash caused various physical injuries and exacerbated his pre-existing depression.
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $80,000 Mr. Justice Holmes summarized the accident related injuries as follows:

[51] The plaintiff now suffers from the complex interaction of a combination of chronic pain, major depressive disorder, and PTSD.  The chronic pain syndrome and PTSD are a result of the motor vehicle accident.  A depressive disorder was present before the accident but in my view was increased or exacerbated from the effect of the accident.   The combination of conditions can have the effect that a worsening of the symptoms of any one may cause another to worsen.

[52] The combination of these disorders is notoriously difficult to treat pharmacologically.  Dr. Passey’s prognosis for the plaintiff “…remains poor for a full recovery and I am pessimistic about any future significant improvements” and “even with further treatment it is most likely that he will have a restricted lifestyle, diminished ability to enjoy life and a restricted capacity for any type of competitive employability for the foreseeable future.”

[53] The plaintiff therefore sustained soft tissue injury in the accident and he suffered significantly in the immediate post accident period with diminishing pain over three or four months.  He also suffered an increase or exacerbation of the psychological symptoms of anxiety, depression and agoraphobia which he had experienced pre-accident but to a lesser degree.

[54] The plaintiff’s pre-accident depression involved passive thoughts of suicide but post accident they escalated to active ideation, with the plaintiff researching methods to commit suicide although not following through because of the effect he believed it would have on his family.  The symptoms of agoraphobia in not leaving his home, answering the phone, getting the mail, and becoming isolated and reclusive, appear to have increased from sporadic and partial pre-accident to the plaintiff tending toward being totally reclusive and isolated after the accident.  The plaintiff even stopped filling out the monthly forms required to receive the funding for his son’s autism program and the government cut off payment.

[55] There is a good deal of evidence in the Odyssey documentation,  the records of Dr. Applegarth, and the testimony of his wife and friends,  that the plaintiffs depression and anxiety conditions existed prior to the accident.  The accident injuries ended the ability of the plaintiff to continue with the Odyssey program, however it may well not have succeeded in any event and the plaintiff was very unhappy with Odyssey before the accident and on the verge of withdrawing.

[56] The surgery for the CSDC has not occurred although available since 2004.  There was no firm commitment made to undergo the surgery and until it was successfully completed the plaintiff would not be returning to work.

[57] The plaintiff had not worked for 6 years at the time of the accident, including an unsuccessful attempt in 2003 doing only non-driving dispatch work.  Statistically persons who have not worked for two years are unlikely to return to employment.

[58] The health of the plaintiff prior to the motor vehicle accident was certainly impaired and he had significant disability.  The plaintiff was particularly vulnerable to both psychological and physical injury and both were caused by the defendant.  The plaintiff at the time of the accident was engaged in a tangible program directed toward an ultimate return to employment, however the result was problematical and uncertain.  There is no doubt however the effect of injuries the plaintiff sustained in the accident did interfere with his ability to rehabilitate himself and did constitute a set back to him.

[59] I agree with the assessment of Dr. Pullyblank that the prospects for the plaintiff’s return to work as a bus driver were low before the accident but lower still after.  The major effect of PTSD is that the plaintiff is eliminated from employment driving a bus or related occupations as that might trigger his fear of driving, accidents, injury and death.

[60] The plaintiff, because of the increased level of his depression and anxiety post accident, and his chronic pain and PTSD, has suffered a further impact on his already impaired quality of life.  The loss of hope of returning to employment as a bus driver, which he loved, and the lessening of his chances generally for remunerative employment, will impact his enjoyment of life…

[65] I assess the plaintiff’s non-pecuniary general damages for pain and suffering, loss of enjoyment of life and loss of amenities at $80,000.

In addition to assessment for pain and suffering for chronic pain and PTSD imposed on pre-existing depression this case is also worth reviewing for the court’s award of damages for wage loss for a previously disabled plaintiff.  In today’s case it was accepted that the accident caused no past wage loss and that given the Plaintiff’s pre-accident absence from the workforce it was ‘statistically unlikely’ that he would return to the work force even if the accident did not happen.  Despite this, Mr. Justice Holmes awarded the Plaintiff $50,000 for diminished earning capacity.  The court’s key discussion in coming to this figure is reproduced below:

[67]         The plaintiff does not seek past income loss and that is because there has been none.  He remains on disability insurance from his original employment.  Regardless of the motor vehicle accident it was problematic whether the plaintiff would have completed his rehabilitation program with Odyssey, pursued conditioning, lost weight, underwent successful surgery for his ear problem and hernia, and been successful in dealing with his depression, agoraphobia, gout and other health problems.

[68]         I am of the view that on the whole of the evidence there was only a minimal chance, absent the motor vehicle accident, that the plaintiff would have successfully achieved rehabilitation through the Odyssey program, successfully resolved his ear problem with surgery, and overcome his other medical and psychological conditions that would perhaps then have allowed him to attempt a return to his job as a bus driver after a six year absence.

[69]         On the evidence, I accept the injuries resulting from the motor vehicle accident give rise to only a minimal change from the plaintiff’s pre-accident earning capacity.  That change is that as a result of the effects of PTSD he will no longer be capable of employment as a bus driver or in any related work which will trigger his PTSD symptoms.

[70]         The reality however is that both prior to, and after, the motor vehicle accident the plaintiff presented to any prospective employer as a person:

·       who had not worked for six years

·       that was physically deconditioned

·       who could not sustain physical activity for prolonged periods

·       who suffered SCDS which triggered dizziness, balance problems, and headaches at random and on physical activity

·       suffered episodic bouts of depression and suicidal ideation

·       suffered diverse anxiety and agoraphobia feelings

·       and personally doubted his own ability to return to work.

[71]         The plaintiff pre-accident did not pursue any job opportunity although with training or further education had many options open to him, most of which still remain after the motor vehicle accident.

[72]         The PTSD has however further reduced the plaintiff’s pre accident ability to earn income and I assess the further diminution in the plaintiffs earning capacity attributable to the effect of the injury from the motor vehicle accident at $50,000.

Can a Plaintiff be Awarded Significant Funds for Future Wage Loss when their Pain and Suffering is Relatively Minor?

The answer is yes and reasons for judgment were released today by the BC Supreme Court demonstrating this.
In today’s case (Sidhu v. Kiraly) the Plaintiff was awarded $35,000 for non-pecuniary damages for accident related soft tissue injuries.
Madam Justice Brown found that the Plaintiff suffered “soft tissue neck and back injuries and developed secondary muscle contraction occipital headaches”  These injuries largely improved over time and the Court found that “so long as (the Plaintiff) does not undertake any heavy labour, he has no significant complaints.  If he undertakes heavy work of any kind, his symptoms flare, he has neck, mid-back and shoulder pain as well as headeaches.
Unfortunately for the Plaintiff, his own occupation at the time of the collision involved heavy labour and once he realized the permanent nature of his injuries he concluded he could not carry on in his occupation.  He retrained for a lighter career as a realtor.  The court found that this was reasonable given the accident related injuries and awarded the Plaintiff $350,000 for his diminished earning capacity.  In arriving at this assessment Madam Justice Brown engaged in the following analysis:

[25] Turning now to future loss of income or future loss of capacity, as I have indicated, I accept that the plaintiff will not be able to return to his work as a heavy duty mechanic and that he is permanently unable to undertake heavy labour of any kind.  This is a limitation on the plaintiff’s “ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured”, and a valid consideration in the determination of future income loss: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 8 (S.C.).

[26] I also am of the view that his choice of real estate agent as a future career was a reasonable one in the circumstances.  In my view, given the plaintiff’s personality and his persistence, he is likely to succeed as a real estate agent.

[27] The plaintiff relies on the report of Gerry Taunton to calculate future income loss. Mr. Taunton calculates Mr. Sidhu’s without accident income as a mechanic to age 65 at $1,096,233 and his with accident income as a realtor at $561,552, a  difference of $534,681.

[28] The court must consider all of the evidence in assessing what makes a reasonable award for such a future loss.  Projections, calculations and formulas may be useful in determining what is fair and reasonable.  It is important for the courts to look at all relevant factors before fixing an amount.  Any award under this head of damages must be set off against appropriate contingencies.

[29] Having considered the assessment provided by Mr. Gerry Taunton and considering the contingencies in this case, positive and negative, in my view, an appropriate award for future loss of income or capacity is $350,000.  I do not accept the defendant’s submission that one year of income would be appropriate in this case.  As I have indicated, the plaintiff has been permanently disabled from his lifetime occupation as a heavy duty mechanic.  He has been forced to retrain.    There is some prospect that he will earn more than the median income of male realtors in British Columbia.  There is also the prospect that he will earn less.  I have assessed the amount of the award in this case as best I am able, considering all of the contingencies.

$75,000 Non-Pecuniary Damages for Moderate/Severe Post Traumatic Stess Disorder

Reasons for judgement were released today by the BC Supreme Court awarding just over $320,000 in damages as a result of a serious BC Truck Accident.
In today’s case (Bonham v. Weir) the Plaintiff was driving a transport truck into Fort Nelson, BC, when another vehicle “crossed the centre line and collided head on with his truck. ”  The Plaintiff’s truck “burst into flames and (the Plaintiff) had to crawl out of the burning cab through a broken windshield.
ICBC admitted fault on behalf of the driver of the other vehicle leaving the court to deal only with an assessment of damages.
Mr. Justice Smith found that while the Plaintiff’s physical injuries were relatively minor and healed within a month or two, the psychological impact of the crash had more lasting and debilitating effects.   In awarding $75,000 for the Plaintiff’s non-pecuniary damages, the court summarized his psychological injuries and their effect on his life as follows:

[25]         Mr. Bonham was involved in a horrific collision which could easily have been fatal for him, as it was for the other driver. Although his minor physical injuries healed quickly, he suffered and continues to suffer from post traumatic stress disorder. There is no doubt that his psychological complaints are genuine and that this condition has a very real and severe impact on his life. His personality has changed. He no longer interacts with family and friends as he used to. He has lost confidence in his abilities and lost interest in most of the things he formerly enjoyed. The psychological symptoms persist more than two years after the collision. Although the plaintiff can expect some improvement in his condition, some symptoms are likely to remain indefinitely.

[26]         Non-pecuniary damages must be assessed according to the impact of the injuries on the individual plaintiff. Decisions of the court in other cases are never completely comparable and provide no more than general guidance. However, recent decisions of this court that I have found particularly helpful in identifying a range of damages applicable to this care are:  Leung v. Foo, 2009 BCSC 747; Carpenter v. Whistler Air Services, 2004 BCSC 1510; and Latuszek v. Bell Air Taxi, 2009 BCSC 798.

[27]         Taking into account the differences and similarities between those cases and this one and, most importantly, the evidence of the impact of this plaintiff’s injuries on his life, I find $75,000 to be an appropriate award for non-pecuniary damages.

This case is also worth reviewing for the courts awards of Loss of Future Earning Capacity.
In this case the Plaintiff’s past wage loss was modest up to the time of trial totalling neat $6,000. Notwithstanding this minimal past wage loss the Court awarded significant damages of $225,000 for loss of future earning capacity because of the ongoing impact of the Plaintiff’s PTSD on his ability to work in his own occupation.  Paragraphs 28-42 of this case are worth reviewing for anyone interested in the law of damages in BC relating to future wage loss.

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.

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