Court awards $1,250,000 in Loss of Future Earning Capacity for soft-tissue and emotional injuries

In reasons for judgment released yesterday, the court in Pearson v. Savage, 2017 BCSC 1435, awarded the 21-year-old plaintiff $1,250,000 for loss of future earning capacity in a case involving soft-tissue and emotional injuries.  In Pearson, the plaintiff suffered soft-tissue injuries which eventually caused depression, anxiety, and PTSD.  In making the award for loss of future earning capacity Madam Justice Loo said as follows:

[201]     It is well known that there are inherent difficulties in assessing awards for hypothetical future events. It is often described as “gazing into a crystal ball” or “an estimate based on prophesies,” and the task is even more difficult when dealing with a young person who have not established a career path:  Shapiro v. Dailey, 2012 BCCA 128 at para. 40.

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[203]     Ms. Pearson was 21 years old when she was injured. She was pursuing a university degree, and had taken time off from her studies to earn an income so that she could continue with her studies.

[204]     I find that she would have obtained a bachelor’s degree, although she may have changed the direction of the course of her studies to focus on her strengths rather than her relative weaknesses in mathematics. Given her personality, her work history, particularly as relayed by Ms. Kingston, Ms. Pearson was exceptional and highly motivated. Ms. Cameron agreed that Ms. Kingston’s description of Ms. Pearson in the workplace is a description of someone with a high degree of emotional intelligence. The components of emotional intelligence include self-awareness, self-regulation, motivation or a passion for work that goes beyond status or money, and the necessary social skills to manage relationships and build networks.

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[207]     Ms. Pearson was only 21 at the time of the accident. However, she possessed the attributes to be exceptional at whatever she pursued. The average full-time full-year earnings for a BC female with a bachelor’s degree, excluding law, for all ages, in 2017 dollars, is $66,927, based on the 2011 National Household Survey. The earnings of those in the 70th, 80th and 90th percentile, is $81,274, $90,360, and $104,096, respectively.

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[211]     Assuming that Ms. Pearson earned an average of $15,000 over her expected lifetime, and based on the economic multiplier, her lifetime with injury earnings is $299,175. Had the accident not occurred her earnings would have ranged from approximately $1,036,000 (economic multiplier) based on the average earnings, to approximately $1,800,000.

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[213]     I conclude that Ms. Pearson has established that there is a real and substantial possibility that she would earn more than the average female with a bachelor’s degree, she would have worked in sports marketing or a similar field, and she would have worked full time, except for limited time off for parental leave.

[214]     I find that an appropriate assessment for loss of earning capacity on a capital asset approach is $1,250,000.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/14/2017BCSC1435.htm#_Toc490471361

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

Court awards “peripatetic” plaintiff $213,449 in damages for soft tissue injuries

In reasons for judgment released earlier this week, the court in Welch v. Tietge, 2017 BCSC 395, awarded a somewhat nomadic plaintiff $213,449 in damages following a car accident in which she suffered soft-tissue injuries.  The plaintiff in Welch was 28 years old at the time of the accident and worked a series of bartending/service jobs following the accident.  In awarding $70,000 in non-pecuniary damages, and $100,000 for loss of future earning capacity, Mr. Justice Johnston wrote as follows:

[10]         Ms. Welch testified that she had always experienced anxiety, that it was not a daily occurrence, but if she became stressed, she suffered panic attacks. She occasionally took Ativan prescribed for this condition, but took no anxiety medication on a permanent basis. Ms. Welch testified that she had missed work as a result of anxiety before her accident.

[23]         Ms. Welch had cosmetic surgery in the form of breast augmentation on October 29, 2012, with Dr. Smith as her surgeon. She did not recall discussing recovery time with Dr. Smith, or being told to avoid heavy lifting after surgery, although she agreed that would make sense.

[79]         There is also the fact that Ms. Welch has led a somewhat peripatetic life between the accident and trial. She had developed a relationship with Mr. Shaw, who lived in Kelowna, before the accident. When the accident occurred, Ms. Welch and Mr. Shaw had separated, but the break was not so final that Mr. Shaw did not contribute to Ms. Welch’s cosmetic surgery at the end of October 2012, and send her money for living expenses from time to time. Even if there had been no accident, I find that it is probable that Ms. Welch’s income in the fall of 2012 would not have been significant.

[80]         The evidence is neither clear nor satisfactory as to how long Ms. Welch would have been unavailable to work as a care aide after her cosmetic surgery, as her own estimate of a month has a poor foundation, and there is no other evidence on the point. She would have been unavailable for some time in November 2012, however.

[81]         From early 2013, Ms. Welch’s employment would have been interrupted each time she moved: to Lloydminster, to Vancouver, to Calgary, to Vancouver, finally landing in Edmonton in September 2014. Some of these moves were driven by economics in that Ms. Welch could not earn enough as a bartender to live on her own in Vancouver. I am not persuaded that she would have been any more successful as a casual or on-call care aide, at least enough to avoid some of her moves.

[90]         Ms. Welch has made any attempt to assess damages for lost income between accident and trial so difficult that it is almost impossible. She has established that her injury has adversely affected her ability to work as a care aide, and has satisfied me on a balance of probabilities that there is some loss of earning capacity to trial for which she should be compensated. On the other hand, she is not entitled to recover damages for a loss which she could have avoided by acting reasonably, and I am persuaded that Ms. Welch has not acted reasonably in that she has not sought out or maintained employment she has shown herself capable of doing.

[92]         If, in assessing that loss, I inadvertently ascribe more earned income to Ms. Welch than she has actually earned, it will be because of her failure to properly record or report income from tips or aesthetician work.

[97]         Before the accident Ms. Welch’s low academic and vocational potential had limited her career opportunities. Her earnings potential lay more in the physical or service occupations than in those requiring intellectual capacities she did not possess. Working as a care aide was a good fit for Ms. Welch, but it was not the only field for which she was suited: she has worked in retail sales, in food and beverage serving jobs, and has been trained on-the-job to work as a laser technician, doing facials, hair removal and skin rejuvenation.

[108]     In assessing this head of damages, I repeat that Ms. Welch had a less than stellar work history before the accident, she demonstrated a willingness to change jobs to accommodate her personal life, and she gave up or lost jobs with some frequency. Her post-injury approach to employment has not been a great improvement. She has moved several times, again interrupting her employment. She has also appeared willing to have others support her rather than pursuing gainful employment she is capable of doing.

[111]     My assessment of Ms. Welch’s enthusiasm for work leads me to assess her future earning capacity loss, on the capital asset approach, at $100,000. In arriving at that figure, I have considered not only the usual contingencies, both positive and negative, that apply to such awards, but those peculiar to Ms. Welch, as revealed by the evidence

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/03/2017BCSC0395.htm

Court awards $120,000 in non-pecuniary damages to 24 year-old plaintiff with "chronic mechanical back pain"

In reasons for judgment released today, the court in Brown v. Mitchell, 2017 BCSC 125, awarded $120,000 in non-pecuniary damages to a 24 year-old plaintiff who suffered from “chronic mechanical pain” as well as vision problems after being involved in two motor vehicle accidents.  Prior to the accidents the plaintiff worked as a dental assistant and was a competitive baseball player.  While she was able to return to playing baseball after the accidents, she suffered pain while doing so.  The court also awarded $120,000 in damages for future loss earning capacity, on the basis that the plaintiff was no longer able to work as a dental assistant and would have to retrain for work in a new field.  In giving reasons for judgment, Mr. Justice Ball wrote as follows:

[24]        The plaintiff’s case may be summarized as follows: she was involved in two motor vehicle accidents, detailed above, the first of which was more serious than the second accident. After a brief period of dizziness, the plaintiff suffered immediate pain in her right lower back which radiated into her right buttocks and right leg. The injuries reported by the plaintiff included a lack of steadiness in her vision which caused her to have difficulty tracking lines of text on a computer screen.

[25]        This second accident aggravated the neck and back pain which arose from the first accident but the symptoms were resolved within three months.

[43]        At the end of the day the evidence generally supports the proposition that this plaintiff will not have a pain free future and that painful symptoms will persist.

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[46]        The plaintiff has had to change her occupation from one she was highly successful at and had trained at some considerable expense to obtain. She remains with a significant debt which she will now have to pay off without the immediate expectation of an increased salary.

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[48]        Having reviewed the cases cited by counsel for both parties, I am satisfied beyond a balance of probabilities that the appropriate award of general damages in this case is $120,000.

[49]        The plaintiff had potential for advancement in the dental field and her employer testified that he would provide opportunities for that advancement to take place. The plaintiff also achieved raises in her salary during the eight months preceding the first accident. Without repeating more of the foregoing I am satisfied that the plaintiff has lost a significant capital asset in that she cannot continue her chosen profession for which she has paid a significant sum for training which was clearly successful. Her future income loss, I fix at $120,000.

The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/01/2017BCSC0125.htm

Court awards motorcyclist $850,000 in loss of earning capacity

In reasons for judgment released yesterday, the court in Sundin v. Turnbull, 2017 BCSC 15, awarded a 33 year-old plaintiff $850,000 for loss of future earning capacity.  In Sundin, the plaintiff had been rear-ended while riding his motorcycle and suffered a variety of physical and psychological injuries, including chronic pain and adjustment disorder.  In finding that the plaintiff was also entitled to $175,000 in non-pecuniary damages, Madam Justice Gerow wrote as follows:

[26]         Mr. Sundin has not adjusted well to the chronic pain, and has been diagnosed with an adjustment disorder. He is having trouble accepting he is not going to fully recover, and is going to have to live with chronic pain.

[77]         In my view, the expert evidence supports a finding that Mr. Sundin will continue to suffer from chronic pain and cognitive and memory problems in the future, and will likely suffer flare ups of both his physical and psychological symptoms from time to time.

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[108]     There is no question that Mr. Sundin’s life has changed profoundly as a result of the accident. Prior to the accident Mr. Sundin had a history of performing at a high level in both his work and personal life.

[156]      Accordingly, I have concluded that as a result of the accident, Mr. Sundin has lost the opportunity to pursue many careers involving heavy physical demands, including firefighting and policing or corrections. It is clear from the evidence that Mr. Sundin is unlikely to be successful in retraining in a formal setting. However, Mr. Sundin has the capacity to work at jobs that can accommodate his limitations.

[157]     This is a difficult case because Mr. Sundin’s ability to keep employment or find full time employment in more sedentary or recreation oriented jobs will likely be limited due to his mood issues, irritability, indecisiveness and inability to get along with people. On the other hand, Mr. Sundin may be able to find and keep employment in the hunting or working outdoors. However, that kind of work is seasonal.

[158]     Having considered all of the evidence, including Mr. Sundin’s age and residual capacity to earn income, I am of the view that the appropriate award for loss of future income earning capacity is $850,000. This award takes into consideration the fact that Mr. Sundin has not established that he would have applied for the RCMP but for the accident, but that he has established he would have applied for and obtained full time employment, likely in the fitness or recreation field. In my view, given his experience at the Canada Games Centre, it is unlikely Mr. Sundin will be able to obtain full time employment dealing with the general public which significantly limits that career possibility.

The text of the full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/00/2017BCSC0015.htm

 

 

Court finds plaintiff's decision to take early retirement not a result of accident, saying claim "not made out"

In reasons for judgment released today, the court in Barr v. Accurate Transmission and Driveline, 2016 BCSC 2405, declined to award damages to a plaintiff for loss of income as a result of the plaintiff having to take early retirement.  In Barr, the plaintiff suffered significant injuries after being struck while walking in a crosswalk.  The plaintiff claimed her injuries caused her to take early retirement at age 60, and sued for loss of income as a result.  In dismissing that aspect of the claim, Mr. Justice Williams wrote:

[27]         Originally, the plaintiff's intention had been to work until her husband turned 65 and retired. That would have been in the autumn of 2017, a time when she would have been 63 years old.

[28]         Instead, she retired in October 2014. She testified that she did so because of the effects of the motor vehicle accident and the way those impacted on her ability to do her job. But for the effects of the motor vehicle accident, she says, she would have remained at her work until the autumn of 2017.

[31]         The defendants challenge that aspect of her claim. They contend that the real reason the plaintiff chose to retire was that she was tired of the job, that the issues that had caused her to go on stress leave had worn her down, and that she did not want to be in that workplace any longer. And so she opted to retire when she did.

[54]         In the result, on quite careful reflection, I am unable to conclude that Ms. Barr has satisfied the burden of proving that the effects of the motor vehicle accident caused her to have to quit her job. In order for her to succeed in this aspect of her claim, I must be persuaded that the loss she claims (the loss of her job as an OR nurse) was caused by the negligence of the defendants. I find that, on a fair assessment of the evidence bearing on this issue, that proof is not made out.

The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/16/24/2016BCSC2432.htm

Court of Appeal upholds Trial Judge's Dismissal of Earning Capacity Claim

In reasons for judgment released this morning, the BC Court of Appeal dismissed a 24-year old plaintiff’s appeal concerning the trial judge’s dismissal of her claim for loss of future earning capacity.  The court said:

[17]        …Ms. Leong argues that the trial judge erred in rejecting her claim for loss of earning capacity. Ms. Leong submits that the trial judge erred in failing to follow the approach in Sinnott v. Boggs, 2007 BCCA 267. She argues that because she is a young person who has not yet established a career and has no settled pattern of employment, the quantification is broader and larger. She argues that there was evidence that she had ongoing symptoms that might possibly limit her ability to engage in vocations that would require lifting or prolonged use of her arms.

[19]        The trial judge gave comprehensive and thorough reasons on the issue of loss of earning capacity. The trial judge considered Ms. Leong’s age, and the fact that she had not settled into a career path, and that her claim should not be prejudiced by a lack of employment history. However, the trial judge concluded at para. 104 that the evidence did not “support a conclusion that there is a real and substantial possibility that the plaintiff is less capable overall from earning income in all kinds of employment, unable to work in jobs that were previously open to her, less marketable to employers, and less valuable as an employee due to her injuries”.

[21]        …in this case, there is no evidence or opinion from any of the medical experts to the effect that Ms. Leong’s conditions and symptoms reduced her earning potential. At around the trial, Ms. Leong began to look at retraining as a nurse or in a sonography program, but thought that she might have trouble lifting her arms for long periods or lifting patients. As noted, there is no medical evidence supporting this concern in terms of her ability to work.

The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/ca/16/04/2016BCCA0485.htm

Court finds plaintiff would have stopped working at 65, despite plaintiff's evidence to the contrary

In the recent decision of La Porte v. Earl, 2016 BCSC 2298, the court found that the plaintiff would only have worked until age 65, notwithstanding her evidence to the contrary.  The court said:

[133]     I have found on a balance of probabilities that Ms. La Porte would not have been able to work beyond the age of 65, even if she had not been involved in the Accident.

[134]    I am aware that loss of future income earning capacity, involving as it does uncertain future events, may be awarded if the evidence shows a substantial possibility of such future loss. However, in this case I find that there was no substantial possibility that Ms. La Porte could work beyond age 65.  

[135]     Accordingly, even though Ms. La Porte indicated that she intended to work beyond age 65, I can find no basis for an award under this head of damages.

The full text of the decision can be found here: http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc2298/2016bcsc2298.html?resultIndex=1