If you sustain permanent injuries in a car accident in British Columbia, it may be that you are entitled to an award for loss of future earning capacity. A recent decision of the Honourable Madam Justice Dardi relating to injuries suffered in a motorcycle collision in Coquitlam sets out a good summary of the legal framework of loss of future earning capacity.
An award for future loss of earning capacity represents compensation for a pecuniary loss: Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144 at para. 32. The legal principle that governs this assessment for loss of earning capacity is that, insofar as is possible, the plaintiff should be put in the position he or she would have been in but for the injuries caused by the defendant’s negligence: Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185. Compensation must be made for the loss of earning capacity and not for the loss of earnings: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229.
The recent jurisprudence of the Court of Appeal has affirmed that the plaintiff must demonstrate both an impairment to his or her earning capacity, and that there is a real and substantial possibility that the diminishment in earning capacity will result in a pecuniary loss. If the plaintiff discharges that requirement, he or she may prove the quantification of that loss of earning capacity either on an earnings approach or a “capital asset” approach: Perren v. Lalari, 2010 BCCA 140 at para. 32. Regardless of the approach, the court must endeavour to quantify the financial harm accruing to the plaintiff over the course of his or her working career: Pett v. Pett, 2009 BCCA 232 at para. 19.
As recently enumerated by the court in Falati v. Smith, 2010 BCSC 465 at para. 41, aff’d 2011 BCCA 45, the principles which inform the assessment of loss of earning capacity include the following:(1) The standard of proof in relation to hypothetical or future events is simple probability, not the balance of probabilities: Reilly v. Lynn, 2003 BCCA 49 at para. 101. Hypothetical events are to be given weight according to their relative likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27.Although a claim for “past loss of income” is often characterized as a separate head of damages, it is properly characterized as a component of loss of earning capacity: Falati at para. 39. It is a claim for the loss of value of the work that an injured plaintiff would have performed but was unable to perform because of the injury: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; Bradley at paras. 31-32.
(2) The court must make allowances for the possibility 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.). Evidence which supports a contingency must show a “realistic as opposed to a speculative possibility”: Graham v. Rourke (1990), 75 O.R. (2d) 622 at 636 (C.A.).
(3) The court must assess damages for loss of earning capacity and not calculate them mathematically: Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43. The overall fairness and reasonableness of the award must be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11. The assessment is based on the evidence, taking into account all positive and negative contingencies.
This court in Falati at para. 40, summarized the pertinent legal principles governing the assessment of post-accident, pre-trial loss of earning capacity and concluded that:[40] ... the determination of a plaintiff’s prospective post-accident, pre-trial losses can involve considering many of the same contingencies as govern the assessment of a loss of future earning capacity. ... As stated by Rowles J.A. in Smith v. Knudsen, 2004 BCCA 613, at para. 29,
“What would have happened in the past but for the injury is no more ‘knowable’ than what will happen in the future and therefore it is appropriate to assess the likelihood of hypothetical and future events rather than applying the balance of probabilities test that is applied with respect to past actual events.”
With respect to the loss of earning capacity from the accident to date of trial, the defendants are only liable for the net income loss, as defined in s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231. In Lines at para. 184, the Court of Appeal held that “it was the intention of the Legislature to give a discretion to the judge to determine what period or periods are appropriate for the determination of net income loss in all of the circumstances”.
If you or a family member have been injured in a motor vehicle collision, motorcycle collision or a pedestrian collision, the Burnaby personal injury lawyers at Becker Lavin & Wessler can provide you with a free consultation so that you know your rights, know what you entitled to by way of compensation, and know that you are being treated fairly in your ICBC injury claim.
Labels: ICBC claim, loss of future earning capacity, loss of income, permanent injury
