I just can’t do it anymore – I’m exhausted, in pain, and frustrated by my inability to be the worker I used to be. Can I retire?
Not uncommonly, people who are injured in car crashes find themselves some combination of unable and unwilling to work. Being in pain often means being miserable at work – whether you’re cramped up at a desk all day, lifting patients in and out of their beds, or trying to be upbeat while showing homes to potential buyers, it’s hard to feel up to it. While younger people might suck it up and keep going to work (with kids and mortgages and other life expenses, quitting work usually isn’t an option for anyone but the most seriously injured), people closer to retirement age might just choose to retire. Sure, it’s not like their arms would have fallen off if they’d kept on for another three or four years until age 65 – but they’re sore and they’re miserable and they take an early retirement when they otherwise would have pushed through.
Who’s responsible for that early retirement? Does the defendant have to pay the plaintiff’s full fare income through to retirement? Or is the plaintiff supposed to either tough it out or find an alternative occupation that they can do for even a few days per week?
In this week’s case, Justice Watchuk discussed this exact issue (Clubine v Paniagua 2018 BCSC 146). The plaintiff’s workplace (Riverview Hospital) had closed just after his crash, but rather than taking one of the alternative employment opportunities offered to him by the Province, he chose to simply retire, citing his chronic pain and headaches as the reason. He said that if he hadn’t been injured, he would have taken one of those alternative employment opportunities and worked right through to age 65. He didn’t seek out any part-time work after his retirement, and had mentioned to a few treaters that he happened to have the financial means to retire early.
Justice Watchuk found that the plaintiff could have continued working (despite his sense that he couldn’t) and that he was only entitled to past wage loss up to a certain point shortly after the accident. Moreover, Justice Watchuk found that even if she had found that the plaintiff’s retirement was the defendant’s burden to bear, that the plaintiff had failed to mitigate his losses by not seeking out alternative employment:
[267] The defendant also submits that the plaintiff has failed to mitigate his damages. A plaintiff in a personal injury case has a duty to mitigate. However, if the defendant says the plaintiff could have avoided part of the loss, the defendant bears the onus of proving that:Graham v. Rogers, 2001 BCCA 432, at para. 35.
[268] Although it is not necessary given my findings above regarding employment income losses, in the event I am wrong, I find that there was a complete failure to mitigate.
[269] The plaintiff has made no attempt to return to work. The plaintiff has residual capacity on his own evidence and on the evidence of all the medical witnesses. This residual capacity would allow him, at minimum, to supplement his pension income in the manner he testified was his intention by working two days per week.
[270] The defendant says the plaintiff’s failure to seek any alternative employment in private health care or teaching music is a failure to mitigate on his part. I agree and I find the defendant has sufficiently proved that the plaintiff’s alleged past loss was avoidable and within his capacity to avoid. Further, any future capacity loss is also avoidable. He should not be compensated by the defendant for his failure to mitigate these losses.
It seems that the court is suggesting that plaintiffs should keep working if they can (even if it’s unpleasant to do so). If you can’t stay on at your pre-crash employment, the court expects you to look for an alternative – like teaching music, in the case at bar.
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