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Past loss not necessary to prove future loss

 If I haven’t lost any income as a result of my crash injuries, so far, can I still claim for a future loss? What if my injuries get worse with time and I am no longer able to do what I can do now? It isn’t likely, but I could lose my job, how does the court take that into consideration?

In the case of Jones v. Mclerie, 2016 BCSC 763 the plaintiff was injured in a rear – end collision on September 8, 2011. At trial there was no claim made for past income loss, though he was claiming a loss of earning capacity at 1 year of his gross earnings, or $60,000.00. The plaintiff did not call any evidence from co-workers or supervisors of his past employers, nor provided any employment files or tax returns. The plaintiff did explain that he had missed a day or two of work in November of 2014, nearly three years after the crash, though was never in any danger of losing his position. In awarding $15,000.00, Mr. Justice Sanders explained that the circumstances were not a bar to a claim for loss of capacity; even a small reduction in capacity demands an award, and a slight risk that this reduction come to bear is still a risk:

[54]         Nevertheless, the defendant does not challenge the credibility of the plaintiff’s evidence that he has had to miss a day or two of work between November 2014, when he started with Valley Lift, and the October 2015 trial date. The plaintiff need not prove a pecuniary loss in respect of that lost time, to establish a pattern of events that may give rise to a loss in future. The fact that Mr. Jones’ employer extends sick leave to him, as he testified to, does not make such past losses or future losses non-compensable. Time lost by the plaintiff by taking a day away from what is essentially a one-man operation will result in either in a loss of productivity – which he is bound to have to account for – or lead to the plaintiff having to make up for the lost time by greater exertion when he returns to work. Viewed as a capital asset loss, this type of absence from work, infrequent though it may be, is evidence of being less capable overall from earning income from all types of employment, or being less marketable or attractive as an employee to potential employer: two of the factors enumerated in a Brown v. Golaiy [1985], 26 B.C.L.R (3d) 353, and Kwei v. Boisclair [1991], 60 B.C.L.R (2d) 393, at para. 25.

[55]         I find there is a real and substantial possibility of the plaintiff’s future earning capacity being adversely impacted by the need to take occasional days off work because of low back pain.

[56]         As discussed by Mr. Justice Barrow in Hill v. Durham, at para. 47, many cases that analyse loss of earning capacity in terms of loss of capital asset provide for an award based on a fraction or multiple of the plaintiff’s average annual income. In the present case, the plaintiff submits that a fair award would reflect one year of the plaintiff’s wages; based on his current rate of $29 per hour, his annual gross is approximately $60,000. It is submitted that an award of that magnitude it is necessary to address the risk or contingency of the plaintiff – who has not had a stable work situation since the accident, and who does not have a trades qualification – losing his job, and ending up in a situation where he does not receive sympathetic support from his employer and where he cannot control what must be done and when.

[57]         While that contingency is a factor to be considered, I do not think it is a significant possibility. Moreover, if the plaintiff conscientiously undertakes and adheres to an exercise plan, as he should, and as I believe he likely will, there is every reason to believe that the risk of income loss associated with such a contingent scenario would be very largely mitigated, if not eliminated altogether.

[58]         The evidence in this case, I find, reflects no more of a loss of capacity than the plaintiff having to take an occasional day off over the course of his working life, with some but very modest additional compensation to reflect more negative contingencies.

[59]         I assess the future loss of earning capacity at $15,000.