If I rely on my physique to build my personal training business, will my loss of physique result in compensation for income loss? What if my business was new, and I had pre-existing injuries?
The case of Kingston v. Warden 2017 BCSC 794, features a female bodybuilder and personal trainer who was injured in a 2013 MVC. She suffered injures to her neck, headaches, sleep disturbance, driving anxiety, and injury to her left breast implant – which required revision surgery.
The plaintiff (Ms. Kingston) had pre-existing shoulder issues caused by lifting heavy weights in her body building training. As a result of her crash injuries she gained weight, which had a significant impact on her self-worth. Her income loss theory was that her changed physique impacted her ability to attract clients and grow her business. On this point, Madam Justice Duncan summarized the law that future hypothetical events will be considered as long as the court is satisfied of a real and substantial possibility, not mere speculation. She concluded that the plaintiff’s claim “turned on her vision of how she would grow her business, and whether that was realistic, in light of the evidence”. In awarding a nominal amount for past income loss, and zero for loss of future earning capacity, she set out the following considerations:
[142] The plaintiff’s optimism about building her business, rooted as it was in her physical appearance which was the product of hours of hard work at the gym, overlooked the impact her significant shoulder issues would have over time on her ability to continue body building. Prior to the accident the plaintiff was driven to seeking out injections into her shoulders to continue with her body building regime. The contention that she would continue to be able to maintain her body building physique indefinitely and use it to attract clients is, in my view, not a sound one.
[143] The plaintiff’s optimism also overlooked the variability of the personal training business. Demand ebbs and flows. Clients move around between trainers. There are busy times (January and February) and slack times (the summer months). The town where the plaintiff lives, Fort St. John, relies largely on natural resource industry for its prosperity. The plaintiff agreed the local economy suffered an economic downturn after the accident. While I did not hear evidence of the population base, I take notice that it is a smaller market than the Lower Mainland area.
[144] The plaintiff was off work completely for the better part of a month after the accident and worked reduced hours for a number of months thereafter. It is difficult to discern with precision what she would have earned, absent the accident, given the variable hours she worked. Based on her earnings as a personal trainer in the year before the accident ($29,035), her gross monthly revenue was approximately $2,400.
[145] I am satisfied that an award of $8,400, comprised of one full month of lost revenue and five months at half capacity, is a fair reflection of her wage loss. In light of the plaintiff’s weak efforts to regain clients she had referred out to other trainers while she was recuperating from the accident, I discount the award for five months at half capacity by 10% to $5,400 for a total award for past wage loss of $7,800.
[146] As for the plaintiff’s future earning capacity, as I noted above, her optimistic view of growing her business based on her body building physique overlooked the toll that lifting heavy weights exacted on her shoulders. At some point, the nature of the plaintiff’s clientele was going to change. According to her evidence, it has changed, but her earnings have largely returned to the pre-accident level. I am not satisfied the plaintiff has demonstrated a real and substantial possibility that she suffered income loss as a result of the accident.
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