Case Summary: Tritton v. Lai, 2023 BCSC 956

The British Columbia Supreme Court recently provided its decision in the case of Tritton v. Lai, 2023 BCSC 956. Prior to trial, the Plaintiff tried to settle this case with ICBC for less than 50% of the amount awarded by the Court. The Court granted our client $499,198.32. This case was another big win for Tyler Dennis.

This lawsuit was a question of damages arising from a car accident that occurred on June 17, 2018. The Defendant pulled their vehicle into the path of the Plaintiff, causing a T-bone collision.

The injured party suffered from chronic neck pain, shoulder pain, and headaches as a result of the accident. Her injuries resulted in chronic pain, sleep disturbance, anxiety, depression, and alcohol abuse.

The Plaintiff had several health issues before the accident, including fibromyalgia, irritable bowel syndrome, neck pain, headaches, tingling in face and fingers, as well as severe anxiety.

We asked the Court for awards of past income loss, loss of future earning capacity, future cost of care, non-pecuniary damages, and special damages on behalf of our client. The main points of contention were past wage losses, future earning capacity, and non-pecuniary damages.

The court provided the following opinion.

Past Wage Loss

[21] Counsel for Ms. Tritton calculated past wage losses assuming that she would have been earning around $35,000 and came to a total of $18,547. I accept that a substantial portion of those losses are attributable to the aggravation of Ms. Tritton’s injuries following the MVA. Taking into consideration other factors such as the COVID-19 pandemic and the possibility of Ms. Tritton’s existing injuries flaring up even without the MVA, I find that Ms. Tritton has established $15,000 in past loss of earning capacity, subject to the relevant deductions.

Loss of Future Earning Capacity

[27] Since the MVA, Ms. Tritton has had some years that were better than others, and the impact of the COVID-19 pandemic on the pattern during some of those years is difficult to assess. I find it likely that she will, as in the past, have ups and downs in the coming years. It is evident that she has been able to secure more flexible types of employment, both as a virtual assistant and working in the administration of her partner’s campground. While it is likely she will find ways to earn income from similar forms flexible employment in the future, I find she is unlikely to recover her pre-MVA levels of earning capacity, and that she has established a substantial possibility of a loss of 50% of her pre-MVA earning capacity indefinitely.

[28] For the reasons set out above, I find it reasonable to project Ms. Tritton’s salary from a present value of $37,500. Ms. Tritton will turn 65 in 24 years, for which the present value multiplier is 20.304. A loss of 50% of her earning capacity would therefore have a present-day value of $22,500 x 20.304 = $456,840. Given the seriousness and chronic nature of Ms. Tritton’s pre-existing condition, I find that a negative contingency of 20% is appropriate to account for the likelihood she would have found herself in a similar situation even without the MVA. Given Ms. Tritton’s relative youth and length of time being considered, I also find that a general negative contingency of 10% is appropriate, also taking into consideration the PWD issue set out above. I will therefore award $319,788 in future loss of earning capacity.

Non-Pecuniary Damages

[32] Counsel for the defendants has taken me to Lehtonen v. Johnston, 2009 BCSC 1364 ($40,000); Miller v. Dent, 2017 BCSC 1177 ($70,000); and Ayles v. Vanderkooi, 2021 BCSC 838 ($70,000). I do not find any of these cases reflect the scope of injuries I have found in Ms. Tritton’s case, in particular the spiral of chronic pain and mental health issues in which she finds herself.

[33] While no two cases are identical, I find that the circumstances in Khosa and Grabovac (setting aside the issue of the inability to bear children) more closely approximate the situation in the case before me. Taking into consideration that the award in Khosa would represent just over $175,000 in 2023 dollars, and that Ms. Tritton’s situation is measurably worse, I find that $190,000 for non-pecuniary damages would be warranted in the circumstances. I agree that the award should be reduced by 20% given Ms. Tritton’s pre-existing condition, and I therefore award $152,000 in non-pecuniary damages.

Conclusion

The case is particularly important because the Court accepted a line of case law that our firm has been instrumental in creating, whereby a percentage of the plaintiff’s total lifetime earning capacity is awarded in damages. In this case, it was 50%.

ICBC sought to minimize Ms. Tritton’s injuries and focus on her pre-existing medical conditions. Unfortunately, insurance companies often focus on someone’s prior problems while largely ignoring the new or worsened problems caused by an accident. As a matter of law, a pre-existing condition does not disentitle someone to compensation; people with prior health problems deserve fair access to justice just as much as anyone else, perhaps more so.