As Greater Vancouver ICBC personal injury claim lawyers, there are many aspects to your ICBC injury claim that can evolve from the medical evidence that we investigate to make sure that you are receiving fair compensation for your ICBC motor vehicle accident injuries. In our previous post, we set out the legal framework surrounding the head of damage referred to as Loss of Future Earning Capacity. In this post, to give you more information about this head of damage as it is called, we include a summary from a recent decision by the Honourable Mr. Justice A. Sanders about the factors that a Court must assess, in determining the amount to award under this head, for a person injured in a British Columbia auto accident, pedestrian accident, or cycling accident in British Columbia, as well as any other personal injury claim in B.C.:
[271] The consequences of the findings I have made as to the extent of the plaintiff’s disability - together with other considerations as to potential future outcomes, with and without the accident having occurred - are to be evaluated by means of the type of analysis undertaken by Finch J., as he then was, in Brown v. Golaiy, (1985), 26 B.C.L.R. (3d) 353:
The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:
1. The plaintiff has been rendered less capable overall from earning income from all types of employment;
2. The plaintiff is less marketable or 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.
[272] The assessment of the pecuniary loss that flows from this analysis must bear in mind the following considerations.
1. First and foremost, the plaintiff is entitled to be restored to the position he or she would have been in but for the defendant’s negligence, so far as that can be done with a monetary award. This may involve “a comparison of the likely future of the plaintiff if the accident had not happened with the plaintiff’s likely future after the accident has happened” – Rosvold v. Dunlop, 2001 BCCA 1 at para. 8.
2. The task of a court is to assess damages, rather than to calculate them mathematically – Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43. While the assessment is based on the evidence, it necessarily involves an element of “crystal ball gazing”: Andrews.
3. The standard of proof is not the balance of probabilities; the plaintiff need only establish a real and substantial possibility of loss, one which is not mere speculation, and hypothetical events are to be weighed according to their relative likelihood – Athey v Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235, at para. 27.
4. Allowances must be made for the contingency that the assumptions upon which an award is based may prove to be wrong – Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.).
5. Any assessment is to be evaluated in view of its overall fairness and reasonableness – Rosvold, at para. 11.
This is a complicated area. Often, insurance companies only reluctantly pay for loss of future earning capacity, and often only pay fair amounts after a trial. Proving that your ICBC motor vehicle accident injury will cause your work to be affected in the future depends on medical evidence from specialists, as well as calculations from economists. The ICBC personal lawyers at Becker Lavin & Wessler can guide you through this process. If you are permanently injured in a motor vehicle collision and have an ICBC Claim, we can investigate your claim, and explore the medical evidence to make sure that you are receiving fair compensation for your car accident or pedestrian accident injuries.
Labels: ICBC, loss of future earning capacity, permanent injury, wage loss
