Tag: loss of pensionable earnings

"It is Not for the Tortfeasor" To Dictate Timelines for a Plaintiff's Retirement

Interesting reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing mitigation of damages in a personal injury claim seeking compensation for reduced pension benefits.
In this week’s case (Wangert v. Saur) the Defendant died when his vehicle collided with a train operated by the Plaintiff.  The Plaintiff suffered from Post Traumatic Stress Disorder and missed some time from work.  The Plaintiff retired in 2012 and sought damages for a reduced pension arguing that had he not been psychologically injured by the collision he would have worked more hours thereby having greater pensionable earnings.
The Defendant argued that since, at the time of the Plaintiff’s retirement at age 55, he was able to work full time and had no residual difficulty from the Accident he failed to mitigate his damages by not working past his otherwise planned retirement in order to earn a greater pension.  Mr. Justice Abrioux rejected this argument providing the following reasons:
[34]         In this case, I accept the plaintiff’s evidence that he had always planned to retire at the age of 55. He had spent many years working for CP Rail.
[35]         The defendant did not cite any legal authority supporting his position that a plaintiff could have mitigated losses by working past his or her planned retirement age. I was also unable to find any.
[36]         In my view, planning for retirement is a very important stage in a person’s life. When one has the opportunity to retire at a certain age, even though continuing to work remains available, the decision to retire is not entered into lightly. It is not for the tortfeasor to take the position that the plaintiff‘s failure to change his life plan due to an accident which occurred through no fault of his own, amounts to unreasonable conduct.

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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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