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Loss of capacity for missed promotion where only three days of work missed after injury

What is the value of a future wage loss claim where very little work is missed after the injuries are sustained? What if injuries prevented a promotion.

In last week’s case of Kam v. Van Keith (2015 BCSC 1519), the plaintiff missed only three days of work after she was injured in a rear-end crash. Evidence before the court was that she was an exemplary employee, and someone who would have been a natural selection to move up in her company. After her injury, a job opening became available for a route manager. She did not apply for the job due to her injuries, as the job required long periods of driving inside a dump truck type vehicle, creating a lot of jerking and movement inside of the cab. Her district manager provided a letter confirming that her injuries prevented her from pursuing the promotion. Mr. Justice Cole concluded that she most likely would have obtained the promotion “but for” her injuries. In awarding $160,000.00 in loss of capacity to earn future income, he provided the following reasons:

[37]        I am satisfied also that there was a real and substantial possibility that she would obtain the promotion and that the proper approach is the earnings approach as compared to the capital asset approach discussed in Perren v. Lalari, 2010 BCCA 140 at para. 32.

[38]        The plaintiff was earning $53,000 per year but now because of promotion, receives $57,000 per year.

[39]        The plaintiff says that taking into account the difference in what she now earns, considering that she would have been earning $60,000 with bonuses up to $18,000/year and not taking into account further promotions that at $10,000/year is a conservative figure and with her current age (39 years), she has 26 years of work to age 65 or at $260,000 wage loss the present value is calculated at $215,000. The plaintiff says that taking into account the fact that she may have to work to age 70 and because of her work ethic, she would most likely meet all her goals as she has in the past and receive substantial bonuses.

[40]        The position of the defendant is that there are a number of negative contingencies that must be considered. The defendant says there are still potentials for improvement in her health, and opportunities for advancement. There is a realistic possibility that her health will improve because of an improved program by a kinesiologist. She had indicated she would consider reapplying for the job if out-of-town travel could be reduced. There is a contract coming up in the near future with the City of Kelowna that the plaintiff’s company may bid on which would reduce travel. The plaintiff has indicated that she would “love to return to university and complete her bachelor of science degree” which would lead to an entirely new career path. The defendant says that an appropriate award for loss of future earning capacity is $60,000 which represents one year of the plaintiff’s current salary. I am satisfied taking into account all the negative and positive contingencies that an appropriate award is $160,000.

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