So, maybe I objectively continued to do well after my car crash, but I didn’t achieve the heights I thought I would – does ICBC have to compensate me for that loss?
In this week’s case, an RN (Ms. Ferguson) was injured in a collision (Ferguson v Watt 2018 BCSC 1587). When she was injured, she was working in a managerial-type role and not doing any hands-on nursing. She had started her career doing operating room (OR) nursing, and while her base salary as a manager was higher than the salaries paid to nurses in the operating room (OR), she didn’t have access to the overtime shifts the OR nurses did and therefore in reality didn’t earn as much as many of the OR nurses did over the course of a year.
Despite her crash injuries, she was able to carry on with her work and had accepted several promotions over the years since the crash. She gave evidence, though, that if she hadn’t been injured, she would have returned to OR nursing in some capacity – either picking up occasional shifts on top of her full-time managerial job, becoming a full-time OR nurse, or doing a mix of travel nursing and OR nursing. She claimed $100,000.00 in past income loss.
The defendant argued that the plaintiff had done exactly what she otherwise would have – she had joined the managerial ranks prior to the collision and her success in those roles had continued since the collision. The defendant argued that there was no evidence that she would have returned to OR nursing but for the collision, and that she didn’t have a history of doing much overtime. The defendant argued that the plaintiff should receive nothing for past income loss.
Justice Marzari agreed with some of each side’s arguments, and awarded the plaintiff $35,000.00 for past income loss:
[102] Finally, I must consider the chance that Ms. Ferguson would have been tempted to take the same or a similar career path to the one she ultimately did take, as the defendant suggests. This involved a steady increase in her salary, although essentially no compensation for the overtime that she worked. The opportunities that were presented to her to take on managerial positions would have undoubtedly been available in the absence of the accident, and did have financial and career related benefits.
[103] While this possibility cannot be discounted entirely, Ms. Ferguson was attracted to work in BC at least in part by the overtime rates, hourly minimums and rate premiums of unionized OR nursing in BC. Furthermore, I find that she deeply missed the work she performed in the OR during this time. I therefore consider it unlikely that she would have entirely forgone the opportunity to do this work between 2013 and 2018, and at the very least, would have been in a position to work in the union environment for a number of years and to improve her salary position in relation to any other management positions that she ultimately may have taken on.
[104] Nevertheless, the substantial salary she has made in her administrative positions must be considered.
[105] Taking into account all of the above factors, I would award Ms. Ferguson $35,000 for loss of past earning capacity.
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