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Lost Capacity and Present Functionality

Will I be awarded for future income loss if I am doing okay right now?  My pain isn’t terrible, but will likely ebb and flow as I age – how will the court view my future losses?

In a personal injury case released this week by the British Columbia Supreme Court, Justice Butler considered the future income loss of a young woman who was injured in three car crashes (Ponsart v Kong 2017 BCSC 1126).  Ms. Ponsart developed neck and back pain as well as anxiety, insomnia, and headaches following the crashes.  She had been able to continue on with many of her recreational activities, including rigourous fitness training, hikes, dirt biking, and partying with her friends.  Work was difficult for her for a period of time after the crashes, but she was able to continue on and had been employed in various roles since the collision.

The plaintiff said that she would have followed a different life path if not for the crashes – namely, she would have attended university and obtained a teaching degree.  She made no efforts in that direction, and she did not have a strong academic record.  The evidence showed that she could work at a desk on a full time basis, contradicting her suggestion that she could not sit through classes.  While Justice Butler did not find a real and substantial possibility that the plaintiff would have gone to university and become a teacher but for the crashes, he did find that she had suffered a loss of income earning capacity as a result of her mild chronic pain, anxiety, and depression:

[101]     The factors a court should consider in assessing whether a plaintiff has suffered a loss of earning capacity are not controversial. They were repeated in Perren at para. 11:

        The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case.  Some of the considerations to take into account in making that assessment include whether:

        1. The plaintiff has been rendered less capable overall from earning income from all types of employment;

        2. The plaintiff is less marketable or attractive as an employee to potential employers;

        3. The plaintiff 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

        4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

[102]     Given the findings I have made, I am satisfied that the plaintiff has proved a real and substantial possibility that she will suffer an income loss in the future. I have found that she will continue to suffer mild chronic pain in her neck and low back. The accidents have increased her level of anxiety and caused her to have depressive symptoms associated with her chronic pain. These conditions have certainly made her less valuable to herself as a person earning income in the labour market. It is very likely she will find herself in circumstances in the future where she will not be able to work or will work at a reduced capacity because of her chronic symptoms. These circumstances are likely to occur after flare-ups of her chronic symptoms or because of minor injuries or illnesses. She will thus be unable to take advantage of all of the opportunities that she otherwise would have been able to pursue.

[103]     I should note that in arriving at this conclusion, I am not relying on Ms. Thompson’s opinion and I specifically reject her view that the plaintiff may not be competitively employable in the future. I have found that she is competitively employable with the qualifications I have outlined.

[104]     The plaintiff argues that a fair way to quantify her future loss is to award two years of her current income. I conclude that such an award would over-compensate her given the findings I have made. I find that a fair award for her lost capacity is $50,000.

 

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