If you are injured through the fault of another motorist in BC and advance a tort claim with ICBC can you receive damages for future wage loss even if you have sustained no past wage loss by the time of settlement or trial? The short answer is yes and today 2 cases were released by the BC Supreme Court illustrating this principle.
In the first case (Kasic v. Leyh) the Plaintiff was injured in a 2004 rear-end collision. He suffered relatively serious and chronic injuries which were summarized as follows by Madam Justice Morrison of the BC Supreme Court:
[138] Mr. Kasic’s headaches and neck pain which he suffered immediately after the accident resolved within a fairly short time. However his lower back pain has not. Ever since the accident, he has had serious and chronic pain. That continues to this day. He has been motivated and compliant with regard to all treatments suggested, with the exception of the Pulsed Signal Magnetic Therapy.
[139] The medical evidence is not in complete agreement as to the exact diagnosis that is causing the pain in the lower back; Dr. McGraw believes that it is the sacroiliac joint, Dr. Hershler is of the opinion that it is a bulging disc irritating a nerve, or a combination of that and the sacroiliac joint. But there is agreement that Mr. Kasic’s symptoms are aggravated by his activities. And there is certainly agreement from all the evidence tendered that Mr. Kasic is in continuous and serious pain.
[140] Will it be a permanent disability? Dr. Hershler holds out hope that there could be a significant improvement if Pulsed Signal Magnetic Therapy were pursued. But this is not a form of treatment widely recognized by the medical profession, and certainly not by Dr. McGraw. Dr. McGraw seemed to hold out hope that if there were a correct administration of the injection of the therapeutic block, that this could eliminate some or much of Mr. Kasic’s pain. Certainly the one injection in October 2008 in that area worsened Mr. Kasic’s condition.
[141] Whether either or both of these suggested treatments are to be tried will be a matter between Mr. Kasic and his medical advisors. But at the present time, the evidence remains that Mr. Kasic is suffering continuous and debilitating pain, and it has been chronic pain since the date of the accident. It has changed him physically, mentally and emotionally.
[142] The changes to Mr. Kasic’s life as a result of his injuries are many. He continues to need pain medication. His previous activities of bowling, tennis, soccer, bocce ball, baseball and picnics are no longer activities in which he can participate. He can help very little around the house, whether it is vacuuming, loading or unloading the dishwasher, moving furniture, or doing yard work.
[143] He cannot plan to buy his own home, as he can no longer do the jobs and the outside work that he would normally have done. His leisure activities with his wife and children have been diminished dramatically, as has his intimate and sexual life with his wife. He has continuous problems sleeping, and his wife often sleeps in another room. Mr. Kasic’s mood, disposition and temper have changed significantly. He cannot do the most simple things such as dressing himself, taking a shower or brushing his teeth without unusual discomfort, positioning and pain.
[144] An undisputed hard worker, Mr. Kasic stated, “I like to work hard to make more money for my family.” His work history has indicated that, both before and after the accident.
[145] Mr. Kasic’s ability to earn in the future has been compromised. It is an asset he has, in part, lost. His injuries have rendered him less capable overall from earning income from all types of employment, particularly those that require twisting, bending, standing, sitting for any length of time, or involve any kind of heavy work. He is less marketable or attractive as an employee to potential employers.
[146] One presumably has an obligation to advise a future employer if there are concerns such as chronic back problems. This plaintiff has lost the ability to take advantage of job opportunities which he might otherwise have had.
[147] Mr. Kasic appears to consider himself less capable and less valuable as a person, because of his condition. He was 45 when this accident occurred. He is 50 years of age now. The real probabilities he faces are fewer jobs available to him, the chance of losing a job or jobs, and possibly having to retire early. His reduced level of energy and inability to sustain work are factors to be considered.
Despite these serious and permanent injuries the Plaintiff had suffered a minimal wage loss by the time his tort claim against the at fault motorist went to trial. In fact, the Plaintiff’s earnings increased from the time of the collision to the time of trial. Depsite this the court held he was entitled to damages for loss of earning capacity and in assessing this loss at $100,000 the court reasoned as follows:
[152] On the issue of loss of earning capacity, clear guidance can be found in the judgment of Huddart J.A. in Rosvold v. Dunlop. Mr. Kasic’s capacity to earn income is an asset which has been, in part, taken away from him. I have found that he has a permanent partial disability, and that limits his work in a number of areas, which in turn impairs his earning capacity.
[153] The defence seems to suggest that Mr. Kasic has reached his goal upon coming to Canada, that his work as a caretaker together with a rental apartment in subsidized housing suggests that he has reached his earning capacity and goals. They point to his past earnings, and note that he has steadily increased his earnings, which is true. But as the courts have reminded us, past earnings are only one factor to consider.
[154] The standard of proof to be applied in making an appropriate damage award under this category is simple probability, not the balance of probabilities. And the Athey case reminds us that possibilities and probabilities, chances, opportunities and risks all have to be considered, as long as they do not amount to mere speculation.
[155] Counsel for the plaintiff suggests that there is the possibility that Mr. Kasic will have to retire early, and I agree that this is a possibility. Counsel argues that even if he had to retire just three years early, this would be a loss equivalent to $150,000. This is based on Mr. Kasic’s earnings in 2007 of just over $40,000, and both counsel have factored in an additional $10,000 because of the generous housing allowance and benefits. This would amount to a real loss of $50,000 a year or $150,000 if Mr. Kasic retired three years early.
[156] Taking into account negative as well as positive contingencies, in my view an appropriate damage award for loss of earning capacity would be $100,000, and I award that amount. In my view, the position taken by the defence with regard to this issue has been unrealistic, and their suggested figure of $10,000 under this category of damages does not meet the test of fairness and reasonableness.
In the second case released today (Weibe v. Peters) the Plaintiff was injured in a 2003 motor vehicle collision. The Plaintiff was a career tradesman who worked as a vinyl deck installer. As a result of the collision Mr. Justice Grist of the BC Supreme Court found that the Plaintiff “will continue to have long term back pain fron the injuries suffered fron the collision which will restrict him from certain forms of physical activity...”
Despite his injuries the Plaintiff lost a minimal amount of time from work by the time of trial. In awarding $125,000 for the Plaintiff’s diminished earning capacity Mr. Justice Grist engaged in the following useful analysis:
[32] The wage loss prior to the date of trial in this case is confined to a minimal number of days off because of back pain, with some time loss to attend doctors’ appointments and physiotherapy. The plaintiff has not been able to provide a record of this wage loss and I cannot fix any sum under this head. As to loss of future earning capacity, I accept that Mr. Wiebe took his present form of employment because he was not able to maintain the physical demands of installations of vinyl decks. Further, he was not able to obtain a management position that would have relieved him from the demands of actual installations. He acted appropriately in taking the position he now holds, which pays the same as his past employment without the benefits which that employment offered. Again, there is no evidence of the value of lost benefits. I accept the evidence that the employment through Mr. Hepple has very little security. He is the only employee and dependent on success of both the turkey farm and the concrete mantle manufacturing business. Mr. Hepple is happy with the plaintiff’s work, however, as both the plaintiff and Mr. Hepple acknowledged, the earnings provided are probably more than this form of employment can justify. If Mr. Wiebe cannot continue in this form of work, he will likely have to retrain or find some opportunity as a manager in a deck installation company, a form of work he hasn’t been able to secure despite efforts in the past. In light of the risk inherent in being let go by his present employer, on balance I think it most likely that Mr. Wiebe will have to face this change of employment in the future, and that retraining is the most likely prospect. I keep in mind the factors mentioned in Kwei v. Boisclair, [1991], B.C.J. No. 3344 (C.A.), and Brown v. Golaiy, [1985] B.C.J. No. 31 (S.C.). In setting damages under this head of loss, specifically:
1. The plaintiff has been rendered less capable overall from earning income from all types of employment;
2. The plaintiff is less marketable or less attractive as an employee to potential employers;
3. The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him had he not been injured; and
4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.
[33] The plaintiff has been well regarded by his employers and has shown industry and responsibility to his family in retaining employment through the difficulties to the present time. I expect this will serve him well in the future. Nonetheless, retraining and start-up in a substitute form of employment will require a considerable period of time before Mr. Wiebe will be able to reproduce his past level of earnings.
[34] The cases cited vary widely in fixing the loss of future earning capacity. At the high end, in Fox v. Danis, [2006] B.C.J. No. 1437 (C.A.), damages under this head of loss totalled $750,000. This however, was a case involving an individual likely to lose all forms of full-time employment. In Demedeiros, the head of damage was compensated in the sum of $180,000. This case, however, involved a stone mason who may have lost the opportunity to succeed his father in a fairly remunerative family business. In Kerr, the plaintiff was a 54 year old school teacher who had lost his ability to participate actively in sports, but who continued in his employment. It was judged that he may be forced to retire earlier and may be restricted in gaining employment after retirement. Damages under this head were assessed in that case at $75,000.
[35] I view the likely loss here as greater in scope than indicated in Kerr but not of the degree of loss in Demedeiros and Fox. I think the appropriate level assessment under this head is the sum of $125,000.