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Assessing Loss of Capacity in a Long Haul Trucker

If I am injured, and my ability to drive for work is reduced – how will the court assess this loss?

In  the decision of Ahmad v. Pandher (2017 BCSC 1732) released last week by the BC Supreme Court, the plaintiff (Mr. Ahmad) was a long haul trucker. On a day off, he was injured in a rear-end collision. His injuries forced him to miss some work, and he alleged that at the time of trial his work continued to be reduced by 25% due to  due to injuries. Before turning to the specific facts, Madam Justice Forth summarized the relevant law – noting that the quantification of the loss is an assessment, meant to reflect the non‑speculative positive and negative contingencies at play in the particular case, and that the assessment is not a strict mathematical calculation (para 106). She went on to say that evidence of ongoing pain may be sufficient to establish a substantial possibility that the pain will adversely affect future ability to work – even where at the time of trial the plaintiff has not missed work.

In applying the law to the facts, she was faced with whether to use a “capital asset approach” – which is an award as a multiple of the plaintiff’s annual earnings, or the “earnings approach” – based on diminished earning capacity as a percentage reduction. She concluded that the earning’s approach was appropriate in this case, with the following reasons for judgment:

[109]     On the earnings approach, Mr. Ahmad submits that his loss would be in a range of $135,000. This is based on diminished earning capacity of 25% based on a future earning capacity of $540,000.

[111]     The defendants’ position is that Mr. Ahmad has not proven a claim for loss of future capacity…

[113]     In the alternative the defendants suggest that Mr. Ahmad is only working 9.5% less and with Mr. Ahmad’s admission that he still works the 4/2 schedule when his symptoms allow then Mr. Ahmad is only working 5% less. Using Mr. Benning’s calculation of net business loss income this amounts to a loss of $1,901 per year with a present value of that loss to age 65 being $22,818 before deduction of personal income tax.

[114]     I find that in this case the appropriate approach is the loss of earnings approach. I do not accept the percentages proposed by either party. In my view a more appropriate percentage to use would be in the range of a 10% to 15% reduction. Bearing in mind the applicable legal principles in light of the evidence and weighing the pertinent contingencies, I conclude that the sum of $55,000 is the present value of a fair and reasonable measure of Mr. Ahmad’s future loss. I find that if Mr. Ahmad follows a proper exercise program then there would be the substantial likelihood that he could reduce the amount of time off work.

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