Court finds no “real and substantial possibility” of future income loss where plaintiff suffered intervening heart attack

In reasons for judgment released today, the court in Parker v. Martin, 2017 BCSC 446, dismissed the plaintiff’s claim for loss of future earning capacity in circumstances where the plaintiff’s capacity for work had been permanently reduced due to a heart attack which occurred after the accident.  The plaintiff in Parker was a 58-year-old Chiropractor who suffered soft tissue injuries after a low-speed collision.  Unfortunately for the plaintiff, he suffered a very serious heart attack several years after the accident in which he suffered irreversible heart damage (it was accepted that the heart attack was wholly unrelated to the motor vehicle accident).  In accepting the evidence of the defence Cardiologist that the plaintiff’s work capacity had been permanently reduced, Mr. Justice Ball wrote as follows:

[1]             The plaintiff, David Parker, was involved in a motor vehicle accident in a parking lot on or about May 4, 2011, at 10:30 a.m. He was backing his vehicle out of a parking stall and stopped to avoid a pedestrian. Another vehicle, a pickup truck was also backing out of a nearby parking stall and bumped into the plaintiff’s stationary vehicle. This was a low speed collision (“the accident”).

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[3]             An unusual feature of this case is that the plaintiff, while travelling in Europe, on October 6, 2015, suffered a significant myocardial infarction which caused major heart damage. That damage has restricted the functionality of Dr. Parker in his ongoing practice.

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[26]         In this trial, Dr. Isserow’s opinion was the only expert evidence from a cardiologist concerning the cause, nature, or effects of the heart attack experienced by the plaintiff. Dr. Isserow opined that as a result of the heart attack, and the relative intolerance of Dr. Parker to very important medications, the life expectancy of Dr. Parker will be reduced and his vocational activities will be significantly reduced compared to his pre-heart attack level of function. At Exhibit 2, Tab 2, page 46, Dr. Isserow stated “I do not believe that Dr. Parker will be able to go back to his previous intensity and duration of work. With cardiac rehabilitation, appropriate adjustments to his medication and the tincture of time, I hope that Dr. Parker would be able to get back to approximately 50% of his pre-heart attack vocational activities….”.

[27]         The plaintiff’s submissions concerning the evidence of Dr. Parker are flawed in that Dr. Isserow did not suggest that the infarcted heart muscle would recover by 20 to 30% in performance. Simply put, Dr. Parker had a poor outcome from a heart attack where there was irreversible damage to the approximately 30% of heart muscle as a result of loss of blood supply, which cannot be restored. Further while Dr. Isserow did testify that it is hard to put a number of the years of life expectancy of Dr. Parker, his prognosis that Dr. Parker’s life expectancy was post heart attack seventy per cent of what it would have been without the heart attack.

[60]         No evidence was called which would suggest that after his extended period of years practising as a chiropractor, Dr. Parker was either going to quit that practice or that he was interested in going into some other trade or profession. In other words, there was no occupation denied to Dr. Parker because of the injuries caused by the accident. In the case of Steward v. Berezan, 2007 BCCA 150, Donald J.A. noted quoting from the defendant’s factum “compensation for a mere theoretical loss” is “no indication of a substantial possibility of actual future loss” (para. 9). And at para. 18 of the same decision, the Court concludes “There being no other realistic alternative occupation that would be impaired by the plaintiff’s accident injuries, the claim for future loss must fail”.

[61]         I am satisfied that he has not suffered nor proven on a balance of probabilities a real and substantial possibility of a future event caused by the accident leading to an income loss for him.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/04/2017BCSC0446.htm