Loss of Past and Future Income: What Do B.C. Judges Look For?

An auto accident can significantly harm your long-term employment prospects. Whether you are currently employed or looking for work when your accident occurs, the injuries you sustain may reduce your ability to hold down a full-time job.

You can seek compensation for such loss of earning capacity under B.C. law, but it is important to understand that judges will carefully consider the unique circumstances of your case before deciding whether to award such damages.

Kagrimanyan v. Weir: Damages for Lost Income and Loss of Earning Capacity Require Careful Analysis of Evidence

To illustrate how judges look at an actual case, consider a recent decision by the B.C. Supreme Court, Kagrimanyan v Weir. This is a personal injury lawsuit arising from a 2013 car accident that took place on a highway overpass near New Westminster. The accident itself was not factually complicated.

The plaintiff is a native-born Ukrainian who moved to Canada in 2000. Up until a month before the accident, she worked as a full-time administrative assistant for a community college. On July 30, 2013, she left that position “for a variety of reasons,” according to Justice Paul Riley. The plaintiff planned to take a month off and visit her native Ukraine before seeking a new job.

Unfortunately, the accident occurred on July 31, 2013. The defendant, a student driver under the supervision of his parents, rear-ended the plaintiff. As a result, the plaintiff suffered headaches–the byproduct of a mild concussion–as well as more serious injuries to her neck and back. While many of the plaintiff’s symptoms proved temporary, her back problems remained.

Nonetheless, the plaintiff still made her planned Ukraine trip. But after returning to Canada and speaking with her doctor, she was certified as medically unable to return to work until November 30, 2013.

During this period, the plaintiff received Employment Insurance benefits. In January 2014, the plaintiff was medically cleared to work, and shortly thereafter found a new position as a part-time administrative assistant. As of the date of trial, the plaintiff remained in that position and was working 25 hours per week.

At trial, several expert witnesses agreed the plaintiff still suffered from chronic pain, which was likely to persist in some form for the rest of her life.

The Issue for the Court: Were Damages for Lost Income Proved?

Since the defence conceded liability for the accident, the only issue for the Court to resolve was damages. Justice Riley conducted a trial over four days in 2017 and 2018 and issued a judgment on August 29, 2018. Much of the judge’s opinion addressed the plaintiff’s claim for damages related to the effect the accident had on her ability to earn a living.

In assessing the plaintiff’s claim for past lost income and loss of earning capacity, the judge looked at each time period separately.

From the Date of the Accident Until Return from Ukraine

For the time between the accident and the plaintiff’s return from her Ukraine trip, Justice Riley awarded zero damages. His reasoning was that the plaintiff was already unemployed voluntarily before the accident, and she had no intentions of working while travelling. Therefore, even if the accident never occurred, her earnings (or lack thereof) during this period would have been the same.

From Plaintiff’s Return to Canada Until Cleared for Work

However, during the period from the plaintiff’s return to Canada until she was medically cleared to work–that is, between September 2013 and January 2014–her earning capacity was clearly impaired, in the judge’s view.

The plaintiff testified at trial that she originally planned to seek a new, part-time job after her trip. Given the plaintiff’s work history and education, Justice Riley said the plaintiff would have likely found a “suitable” job prior to January 2014.

The Court calculated the plaintiff’s estimated loss–assuming she worked 20 hours per week at a wage of $15 per hour–at $4,170, which the judge reduced to just $1,230 to account for the Employment Insurance benefits she had received.

During Plaintiff’s Job Search

Next, the judge looked at the period between January and April 2014. This was when the plaintiff belatedly resumed her job search and found her new part-time position. During this time, the Court concluded the plaintiff suffered no loss of earning capacity.

The judge said that “[a]ll of the evidence indicates that it was [the plaintiff’s] choice to pursue a part time job,” largely due to her need to care for her minor son. Given this, the plaintiff was in no worse a position due to her accident-related injuries, and therefore was entitled to zero damages.

From Finding a New Job Until Trial

Finally, the judge examined the plaintiff’s work situation between the time she obtained her new job in April 2014 and the trial. The plaintiff’s medical experts agreed she could not physically work more than 25 hours per week due to her chronic pain.

But, once again, the judge cited the plaintiff’s decision to work part-time as reflecting her own personal desires, rather than something dictated by her injuries. Accordingly, the judge awarded zero damages for this time period.

Future Loss of Earning Capacity in B.C.

However, Justice Riley went on to award over $153,000 in damages for future loss of earning capacity. Here, the medically imposed 25-hour workweek limit is relevant, as the judge said there was a “reasonable probability” that the plaintiff would have returned to full-time work around 2020—the year her son completed elementary school—but for her accident-related injuries.

Even accounting for the possibility the plaintiff would have still opted to remain a part-time worker, or that her chronic pain improves to the point where she could work a 40-hour week, Justice Riley said the plaintiff was entitled to the award for the expected loss of future earnings.

Get Advice from a Vancouver Car Accident Lawyer Today

As you can see, calculating damages in a personal injury case often requires detailed examination of a victim’s pre- and post-accident working life. This is why it is so important to work with an experienced Vancouver car accident lawyer who can assist you in building the strongest case possible before heading into court.

If you have been injured in an accident and need help, contact Preszler Injury Lawyers to schedule a free, confidential consultation with a member of our team today.

Source:

CanLII