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Loss of Capacity and ‘Dream Jobs’

What if my injuries from a crash disable me from my dream job?  Can I be compensated for that loss, even if I hadn’t taken any steps to start working in the area prior to the crash?

In the recent case Arletto v Kin (2016 BCSC 77) the plaintiff incurred injuries that remained symptomatic years after the incident, including pain through his back and neck, vertigo, and a “swooshing” sound experienced in his ears.  The plaintiff was eventually able to return to his work as a longshoreman, which he did through the International Longshore and Warehouse Union.  He held two classifications within the union – lift driver and checker.  The plaintiff was still able to perform these two jobs, albeit with pain and only at part-time hours.  While the court found the plaintiff was dedicated to his job and had high job satisfaction, it was also noted that the plaintiff had expressed interest and admiration for the classification of crane operator.

Evidence was introduced to the court that crane operating is a highly specialized job which is suitable for very few people.  Prior to the crash, the plaintiff had taken no steps to pursue this classification.  After the crash, his functional capacity evaluation indicated that his vertigo was such that working as a crane operator would be impossible.  The expert medical evidence confirmed that the plaintiff’s vertigo was a result of the crash, and as such – even though there was no indication the plaintiff would have qualified to be a crane operator in any case – the crash ended any real possibility of working in that position.  While the bulk of the $500,000 award for loss of capacity was based on the plaintiff’s inability to continue on in his work as forklift driver, Dillon J. did take the loss of the plaintiff’s crane-operator dream into account:

  [64]         The plaintiff no longer works full time according to his evidence. The medical evidence generally supports the conclusion that the plaintiff should not be working as a forklift driver because this will only exacerbate his condition and obtaining full time work as a checker is uncertain. Although the plaintiff’s dream of being a crane operator is ended, the reality of this position and the plaintiff’s circumstances before the accident are such that there was not a substantial possibility of getting this job regardless of the accident. However, the fact that he cannot ever get this job because of the vertigo from the accident must be taken into account. While the risk of being unable to work in the future as a forklift driver is not specifically quantifiable, it does exist and must be taken into account.

[65]         All of this creates a large task in quantifying future loss of earning capacity. Thankfully, the approach taken here is not one of mathematical precision but rather is a judgment based upon the whole of the evidence. In this regard, the reports of the economists have been of tremendous assistance, although none of them use the exact risk factors that are considered appropriate here.

[66]         Overall, I have concluded that there is a substantial possibility that the plaintiff will probably work but with work hours reduced by 20% in each year to the point of taking early retirement at age 60 in 2023. Given the estimated cumulative value of this income adjusted without risk of unemployment, minus the present value, the plaintiff potentially has lost earning capacity of about $132,000 over this period. Based upon comparison of estimated figures to date of retirement without the accident in 2028, the total potential loss of earnings is about $420,500.

[67]         There is also a loss of pensionable benefits in the five years from age 60 to age 65 when the plaintiff would likely not contribute but could otherwise have been expected to contribute and to retire at that age, but for the accident. These are estimated to be about $48,800 based upon Hildebrand’s suggested calculation from his Table 4 of a loss of about $2,440 per quarter of pensionable year lost.

[68]         Future loss of earning capacity is assessed overall at $500,000.