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Loss of Capacity Despite Dismal Work History

If I have a dismal work history, pre-existing psychological issues and alcoholism, can I still prove that my injuries will cause me a future loss of earning capacity?  What factors will the court consider?

In a decision released yesterday, (Miller v. Dent, 2017 BCSC 1177) Mr. Justice Blok was faced with assessing whether the plaintiff’s injuries caused him a loss of future earning capacity. Given Mr. Miller’s dismal work history (he only worked for one year from 1996 to 2004), and the fact that at the time of the crash, he was in the midst of a major depressive or stress-related event (which was expected to take him out of the workforce for 7-8 months), he was awarded $10,000.00 in income loss from the time of the crash to the time of trial. This was deemed appropriate because he might have managed a few months’ more work during the pre-trial period if he was not injured.

The judge concluded that the plaintiff’s symptoms affected him somewhat at work as a truck driver, and found that he would need to demonstrate a real and substantial possibility of a future loss to make a successful claim for future income loss. In addition to his pre-existing psychological concerns, the plaintiff suffered with acute alcoholism. In awarding for $48,000.00 (about the equivalent of one years’ earnings), Justice Blok applied the factors from Brown v. Golaiy: 

[180]     Dealing with the Brown v. Golaiy factors:

a)    I am satisfied Mr. Miller has been rendered less capable overall from earning income from all types of employment.  He has physical symptoms that limit his stamina for driving and limit his ability to do truck driving that involves physical work.  As already noted, I am also satisfied that Mr. Miller’s injuries and PTSD added to his pre-existing major depression and stress issues and to the frequency and severity of his headaches;

b)    Mr. Miller is at least somewhat less marketable or attractive as an employee to potential employers for those same reasons;

c)     Mr. Miller has lost the ability to take advantage of all job opportunities which might otherwise have been open to him had he not been injured; and

d)    Mr. Miller is at least somewhat less valuable to himself as a person capable of earning income in a competitive labour market.

[181]     I will not repeat my earlier comments about Mr. Miller’s substantial pre-existing problems and their likely effect on his employment, but they are equally applicable here.  I conclude that if the accident had not occurred Mr. Miller still would have experienced substantial periods of unemployment due to depression, stress and acute alcoholism.  However, I also conclude that for those times he would have been working he is now less capable overall.

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