If I am a university student without set career plans when I am injured, how will the court assess my income loss? What if I have no work history because I spent my summers volunteering at church?
In my previous post, I summarized the pain and suffering aspect of Ms. Kweon’s case Kweon v. Roy 2016 BCSC 2305. I will now turn to her claim for income loss. She sought $150,00.00 on the basis that she would have commenced a career immediately upon graduation. ICBC argued that she failed to establish any income loss.
Mr. Justice Skolrood was satisfied on the evidence that absent the crash, she would have graduated with a bachelor’s degree in 2012. Her career plans were unclear though, and the economist in the case (Mr. Curtis Peever) provided numbers for average earnings for females in Canada with a bachelor’s degree, opining that a very conservative amount earned over that period was $114,493. Noting her lack of career plans, lack of work history, and likelihood of spend the first summer after graduation volunteering for her church, then trying a few jobs before settling on a career, he awarded $75,000.00 in income loss for the four years leading up to trial.
He went on to consider her claim for loss of future earning capacity after the date of trial. Ms. Kweon sought an award of $700,000.00, saying that she was disabled from some jobs requiring heavy labour, and that there was significant uncertainty about the future of her psychological condition, which continued to be disabling at the time of trial. ICBC argued that Ms. Kweon had not established any likelihood of future loss. In awarding $165,000.00 for her loss of capacity to earn future income, Mr. Justice Skolrood made the following remarks:
[217] I am satisfied that, on the evidence, Ms. Kweon has established a real and substantial possibility that her earning capacity has been impaired within the meaning of Perren and Morgan. While her soft tissue injuries will not cause any long term disability, the evidence establishes that she will continue to experience pain in her pelvis and lower back that will preclude her from certain occupations. In this sense, she has been rendered less capable of earning income from all possible sources and is less marketable as an employee, within the meaning of Brown.
[218] Further, I am satisfied that, as of the time of the trial, Ms. Kweon continued to be disabled due to her psychological condition. Both Dr. Patton and Dr. O’Shaughnessy noted the need for more aggressive treatment of her condition, including both medication and therapy. Given the absence of treatment to date and the length of time that her condition has persisted, I find it is likely that she will continue to be totally disabled from employment for a further two years, up to the end of 2018.
[219] Obviously, the future beyond that point is unknown, but I accept Dr. O’Shaughnessy’s opinion that Ms. Kweon’s long term prognosis is relatively positive. That said, given the uncertainty of how she will respond to treatment, there is some possibility of future interruptions in her employment due to reoccurrence of her psychological issues.
[220] Returning to Mr. Peever’s projections, using his “risk and choice” projections, again for a B.C. female with a bachelor’s degree, from the time of trial through the end of 2018 results in a figure of $93,355. A positive contingency that would serve to reduce that amount is the possibility of a positive, and quicker, response to treatment whereas negative contingencies include a poor response to treatment and, as noted above, the possibility of periodic interruptions in her employment to recurrences of her symptoms.
[221] On balance, I think that the negative contingencies outweigh the positive and that it is reasonable in the circumstances to award additional damages to take account of likely future employment interruptions. In other cases in which it has been difficult to assess the actual likely income loss, and the capital asset approach has been applied, courts have awarded the equivalent of one, two or more years of salary to compensate for the diminishment in the plaintiff’s capital earnings asset. See Strilec v. Leila, 2015 BCSC 1515; Cooper v. Royal Canadian Mounted Police, 2001 BCSC 1788; Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353.
[222] That approach is reasonable in the circumstances of this case. According to Mr. Peever’s projections, the average annual earnings for a female of Ms. Kweon’s age with a bachelor’s degree, which is what Ms. Kweon likely would have been, but for the accident, is approximately $35,000. Two years at that amount is $70,000. Added to the loss incurred up to the end of 2018 results in a total of approximately $165,000 and I award this amount for loss of future earning capacity.
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