Car accidents can have serious, long-term ramifications for your ability to earn a living. Many accident victims find they are unable to return to work for months or years afterwards. Even those who do return to work may find their ability to advance in their careers sharply curtailed by their accident-related injuries.
So, how do B.C. courts assess an accident victim’s projected loss of future income or “earning capacity”? A recent decision by the B.C. Court of Appeal, Gill v. Lai, offers some insight into the process. This case actually involves a plaintiff who sustained injuries in two separate, unrelated motor vehicle accidents.
The first accident took place on May 19, 2010. The plaintiff was driving her car eastbound on Highway 10. A second vehicle was traveling in the opposite direction but in the wrong lane. It clipped a third vehicle, which was directly in front of the plaintiff’s car. The collision forced the third vehicle into the front of the plaintiff’s car.
At the time of this first accident, the plaintiff had a job as a pharmacist. She was on maternity leave following the birth of her daughter. She originally intended to return to work in June 2010, but due to her accident-related injuries she only made a gradual return to part-time work starting in September 2010.
The second accident occurred on May 30, 2013. It was described by the trial court as “less serious” than the first accident. The plaintiff had been scheduled to assume a new role with a pharmacy in Abbotsford, which was pushed back several weeks due to the second accident.
As a result of the two accidents, the plaintiff suffers from “chronic myofascial neck, shoulder, and upper back pain and, to a lesser degree, chronic myofascial low back and gluteal region pain,” according to her doctors. She subsequently sued the drivers responsible for both accidents. Liability was admitted and the case was submitted to Justice Gordon S. Funt of B.C. Supreme Court in Vancouver for trial as to damages.
Justice Funt ultimately awarded the plaintiff just over $1.6 million in damages. The largest single category of this award was $1,322,500 for the plaintiff’s future loss of earning capacity. The defence appealed this part of the award to the Court of Appeal.
In a judgment issued on April 3, 2019, the B.C. Court of Appeal allowed the defence appeal and reduced the award of damages for future loss of earning capacity. Justice Peter M. Wilcock authored the judgment on behalf of a unanimous three-judge panel.
As Justice Wilcock explained, in personal injury cases such as these, the plaintiff has the burden of proof to establish her damages. In the context of loss of future earning capacity, this means presenting evidence of a “a real and substantial possibility of a hypothetical future event she could no longer realize which results in a loss of income following the accident.” Here, the plaintiff argued at trial that the two car accidents prevented her from progressing in her pharmacy career, with the ultimate goal of obtaining a promotion to work at her company’s head office.
Justice Funt concluded there had been a “real and substantial possibility” of the plaintiff getting that head-office promotion prior to her injuries, based on her overall “attributes and desire to succeed.” On this basis, he awarded the plaintiff $45,000 for her “loss of opportunity.”
On appeal, Justice Wilcock agreed with the defence’s position that the plaintiff’s damages were purely speculative on this point. The Court of Appeal cited the trial testimony of a vice president at the plaintiff’s company, who said he “could not provide concrete evidence on the [plaintiff’s] prospects of obtaining a head office position because, although he agreed she had the potential, she had never spoken with him about her desire” for such a promotion.
The balance of the trial court’s award for loss of future earning capacity was based on an assessment of her “residual capacity to work.” On this issue there was a conflict among the medical experts who testified at trial. Everyone agreed the plaintiff could not return to full-time pharmacist work as a result of her injuries. But there was disagreement as to whether she would eventually be able to work “three days or four days per week.”
In other words, one expert said the plaintiff would eventually be able to “work at 80% of full time work over the long-term,” while another expert said she would be limited to just 60% of full-time work. Justice Funt decided to adopt the 60% figure as “appropriate” and “well within reason in the context of the plaintiff’s injuries and the error-free demands of the pharmacy profession.” Given the conflict between the two experts, Justice Funt said any “doubt should be resolved in favour of the plaintiff,” particularly since the defendants were liable for her injuries.
Justice Wilcock, however, found Justice Funt’s analysis “troublesome.” While a trial judge is free to “prefer the evidence of one expert over another” the “decision of how to weigh expert evidence or the quantum of damages does not hinge upon which party is blameworthy.” In this case, the Court of Appeal found the expert who said the plaintiff was capable of returning to work at 80% full-time was more credible due to his professional qualifications as a “physical medicine and rehabilitation” specialist. In contrast, the expert preferred by Justice Funt “was not specifically qualified to express an opinion on the prognosis with respect to [the plaintiff’s] employability.”
The Court of Appeal therefore reduced the plaintiff’s award of damages to account for the estimate of her “post-accident earning capacity to 80% of full-time work.”
Even when a negligent driver admits to causing an accident, litigation over the nature and extent of the victim’s injuries can still take months or years to resolve in court. That is why it is of critical importance to work with a qualified Vancouver personal injury lawyer. Contact the Preszler Law Firm to schedule a free consultation with one of our lawyers today.