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