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.