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Loss of Future Earning Capacity

I have been off work for a significant amount of time due to my crash injuries. I hope to be able to return to the workforce in the future but my injuries are such that any future employment  will likely be in a limited capacity. How will the court assess my future losses?

In the recent case of Symons v. Shears (2016 BCSC 1667) the 26 year old plaintiff was injured when her truck was hit by a drunk driver at a significant rate of speed. Previous to the crash, the plaintiff was a healthy and active young lady with no health issues. She had an excellent reputation up north in the oil and gas industry as a first aid attendant and just one and a half months prior to the crash worked her first day as a self employed first aid attendant doing contract work. In the process of setting up her business she had bought a truck, mobile treatment centre, medical supplies, and radios. She had acquired some contract work based on her previous contacts and good reputation.

Due to the impact of the crash the plaintiff suffered facial bruising and contusions, low back and right hip pain that radiated through her buttock and into her calf. She also suffered from headaches. The plaintiff took a couple of months off work and received massage and chiropractic treatments but returned do to financial pressures and the need to maintain her reputation in her field. She struggled with driving due to pain and anxiety and therefore chose to take jobs closer to home. She chose to “push through” the significant pain she was feeling. By August of 2009, the plaintiff was still experiencing significant pain and was seen by a doctor at her clinic.  A CT scan revealed a disc protrusion. She had a subsequent surgery in May of 2011. She optimistically returned to work in in September of that year and again had an increase in symptoms. In March 2012, the plaintiff turned her head and sneezed while cleaning her bathroom suffering serious damage to the same area of her back and causing a “lightning bolt” of pain. She was prescribed morphine and has not worked since that day. From that point, her life began to unravel at an  escalating rate. She became addicted to pain medication, had trouble maintaining her personal hygiene, underwent a second surgery which was complicated by a resulting leak of spinal fluid,  a second disc herniation,  and a resulting spinal fusion surgery. As a result of all of her trauma she suffered from PTSD and a major depressive disorder.  She became deconditioned and overweight and has had to work hard to lose the weight. All of her injuries were found to be caused by the crash.

At the time of trial, the plaintiff was seeking employment in areas which the experts agreed would be suitable for her. Those fields were ones which would be part time, in a generally light capacity at a minimum paying job. The psych expert did not consider her to be employable unless she continued with psychological and psychiatric treatment.

Madam Justice Dillon considered the plaintiff’s work ethic and good reputation in her employment pre crash. She agreed that due to the plaintiff’s injuries there were areas of employment which were now closed to her and she would likely end up in a part-time minimum wage job. After taking into consideration both positive and negative contingencies, the plaintiff was awarded $1,400,000.00 in future loss of earning capacity.

[107]     The plaintiff argued that the plaintiff would most likely have worked as a first aid attendant to retirement if the accident had not occurred. This is certainly a real possibility with the additional likelihood that the plaintiff would have advanced her skills and her reputation in the business. The plaintiff suggested that the plaintiff would have earned between $50,700 to $80,700 per year. This is less than the $87,900 per year projected by the third party for past wage loss. Against this is the real possibility that the plaintiff will return to part-time employment. The potential job as a riding instructor would earn the plaintiff only $3,360 per year. The plaintiff agreed that a more regular part-time job could earn the plaintiff as much as $26,000 per year. This left the range of possible annual income loss between $25,000 and $80,700. The plaintiff would then apply the discount table from Appendix E of the Civil Jury Instructions as was done in Erickson v. Bowie, 2007 BCSC 1465 at para. 5, a case provided by the third party, to come to a range from $593,500 to $1,940,700 for future income loss to retirement at age 65. This discount rate is set by the Chief Justice pursuant to s. 56 Law and Equity Act, R.S.B.C. 1996, c. 253 and BC Reg 74/2014. Ultimately, the plaintiff sought an award in the range of $1,500,000 to $2,000,000.

[108]     After consideration of all of the factors here and without mathematical precision, I have concluded that the plaintiff would likely have made about $80,000 per year in her first aid business and would have worked in this business as long as she could to retirement at age 65. She is driven to work now but faces significant obstacles that restrict the likelihood of her maintaining regular part-time employment at a rate of about $25,000 per year into the future. Assessing this loss as best as possible considering both positive and negative contingencies, and taking into account the discount factor without expert assistance, an award of $1,400,000 for loss of future earning capacity is appropriate here.

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