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The Supreme Court of British Columbia recently handed down its decision in the case of Wagner v. Cooper, 2024 BCSC 986. The Honourable Justice Shergill awarded the deserving plaintiff $367,856.81. This case is of particular note since this is the first time the novel issue of deductibility of WCB benefits has been decided.

Nathan Wagner was involved in two motor vehicle accidents. On December 12, 2017, Mr. Wagner was sideswiped by the defendant while driving. On December 13, 2017, Mr. Wagner was rear-ended by a different defendant. Liability was admitted for both accidents.

Mr. Wagner sustained physical and psychological injuries as a result of both accidents, which impacted on his function and ability to earn an income.

The main point of contention was causation. Mr. Wagner suffered from a number of pre-existing physical and psychological conditions, primarily stemming from a prior work-related accident. He suffered additional trauma subsequent to the accidents. The court was tasked with determining the degree to which these unrelated conditions were responsible for Mr. Wagner’s dysfunction and what could be attributed to the negligence of the defendants.

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Mr. Wagner suffered a significant work injury in February 2012, by a gas explosion at the work site. He suffered injuries to his neck, throat, and chest, resulting in tracheostomy surgery and trachea reconstructive surgery. This work injury continued to impact Mr. Wagner’s physical and psychological health at the time of the accidents.

Mr. Wagner argued that the accidents exacerbated his previous injuries and conditions, and also caused him new injuries. These new injuries had a devastating impact on his life, causing significant pain and suffering.

ICBC acknowledged that Mr. Wagner suffered injuries in the accidents, but these injuries are not as significant and severe as portrayed by Mr. Wagner. ICBC acknowledged that Mr. Wagner had ongoing chronic pain, but it was not disabling. ICBC’s defense rested on Mr. Wagner’s previous work injury as being his main source of pain and disability,

The court agreed that injury to an already disabled person can be devastating. The court determined that while Mr. Wagner was experiencing physical restrictions due to his pre-existing conditions, the injuries from the accidents worsened his pain, causing new injuries and limitations. Mr. Wagner was further restricted from his recreational activities, which was not the case before the accidents.


Mr. Wagner was a landscaper and heavy equipment operator by profession, which is a physically heavy and demanding job.

Prior to the accidents, Mr. Wagner suffered a workplace injury and was in receipt of WCB benefits from 2014 to 2017. After the accidents, Mr. Wagner was in receipt of further WCB benefits while completing a WCB-directed health program and employment retraining after the Accident. Mr. Wagner also received CERB benefits in 2021.

ICBC argued that the CERB and WCB benefits should be deducted from the award for past wage loss. ICBC’s position was that the quantum for pain and suffering ought to be reduced to account for Mr. Wagner’s pre-existing injuries from his work accident, but at the same time sought the benefit from the WCB payments received by Mr. Wagner since he would not have received those benefits but for ICBC’s breach. The court found that ICBC cannot have it both ways.

[187] First, it is evidence from the various WCB records and document submitted into evidence, that the benefits that were paid to the Plaintiff by the WCB during the period following his Collisions were for his work injury and not his Collisions.

[188] Second, there is no evidence that the benefits were intended to indemnify the Plaintiff for the sort of losses arising from the Defendants’ breaches. The Defendants’ breaches related to the motor vehicle Collisions. The WCB benefits are intended to provide coverage for workers that experience work related injuries. There is no evidence that the Collisions were work related, or that a workers compensation claim was opened for the Collisions. Further, Mr. Wagner’s WCB benefits following the Collisions were paid under the claim number associated with the work injury.

[193] Although the WCB benefits were not paid for directly by Mr. Wagner, there is sufficient evidence that he made financial sacrifices in exchange for WCB coverage. By working as a salaried employee Mr. Wagner was paid less by his employer, and in exchange he received coverage for CPP, EI, and WCB. As in Cunningham, I can see no reason why the Defendants should be entitled to benefit from these sacrifices made by the Plaintiff.

The court conclude that the WCB benefits should not be deducted from an award for past wage loss as they fall within the private insurance exception as outline in Cunningham v. Wheeler, [19994] 1 S.C.R. 359.


Mr. Wagner’s claim for loss of future earning capacity was a contentious issue at trial.

Mr. Wagner argued that a fair and just amount for his future loss of earning capacity is $887,650. This figure was based on a number of assumptions. One assumption is that but for the collisions, Mr. Wagner would have continued working in heavy equipment operation, or a similar medium-strength position. Another assumptions is that he would have worked full-time for $31 per hour, which translates to $64,000 per year. A third assumption is that he has 33.5 years of residual employment, based on the fact that he is currently 31 years old and the assumption that he would have worked until age 65. A discount rate and negative contingencies were also applied to yield the final number.

ICBC argued that the evidence does not support a claim for loss of future earning capacity. However, if the court does find there is a loss of capacity, then a fair and reasonable amount would be to assess it as 1 to 2 years future capacity using the baseline income of $43,000.

The plaintiff retained a vocational rehabilitation expert, Dr. van den Berg. Dr. van den Berg opined that Mr. Wagner can do no longer do physically demanding work and no longer meets the physical requirements for his pre-Accident occupation. Rather, Mr. Wager could be better suited to lighter, more sedentary roles. However, Dr. van den Berg highlights Mr. Wagner’s negative prognostic factors, including his pre-existing conditions and injuries from the accidents, which limit his occupational options in addition to having no history working in office or clerical jobs.

Ultimately, the court was satisfied that there was a real and substantial possibility that the injuries Mr. Wagner sustained in the accidents will impact his future and cause a pecuniary loss. The court awarded Mr. Wagner $165,000 for loss of future earning capacity – a higher figure than ICBC deemed fair.


The total damages awarded to Mr. Wagner are as follows:

Non-pecuniary damages: $115,000

Past loss of earning capacity: $64,000

Future loss of earning capacity: $165,000

Past loss of housekeeping capacity: $3,000

Costs of future care: $10,850

Specials: $10,006.81

Total: $367,856.81

This was a complex case that ran at trial for 12 days. Congratulations to senior lawyer Nathaniel Hartney on this fantastic win. Mr. Hartney fought hard for a deserving client and proved that ICBC’s tactics will not hold up in court.

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