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Pitfalls in proving loss of earning capacity

If I haven’t missed any work, nor lost any clients – will I be able to satisfy the court that my injuries will cause me future income loss?  What if I have an unrelated heart attack that DOES cause me to miss work?

In a decision released today by Mr. Justice Ball of the British Columbia Supreme Court, a chiropractor (Dr. Parker) was injured when a vehicle backed into his vehicle in a parking lot. The decision is Parker v. Martin (2017 BCSC 446). Dr. Parker did not miss any days of work nor did he lose any clients as a result of his symptoms, because he creatively found ways to accommodate his symptoms. He sought an award equivalent to two years’ earning to compensate for what he argued was a real and substantial possibility that he would suffer future income loss.

Importantly, 4.5 years after the collision, Dr. Parker suffered a significant myocardial infarction (commonly known as a heart attack) which caused major heart damage. At the outset of his assessment of damages, Mr. Justice Ball emphasized that the tortfeasor was not responsible for the heart attack and related damages:

[32]         Before considering damages, there are several propositions which require review in these circumstances. First, in Athey v. Leonati, [1996] 3 S.C.R. 458, the fundamental principal expressed is that a tortfeasor is only required to place the plaintiff in the “position he or she would have been in absent the defendant’s negligence” (para. 32). Second, in this case, the myocardial infarction suffered by Dr. Parker was not connected to or caused by the accident. It is an independent intervening event which has affected his life.

As it turned out, Dr. Parker’s heart condition caused him to miss work 4.5 years after the index collision. In denying the loss of capacity claim, Mr. Justice Ball made the following findings:

[59]         ….Dr. Parker worked continuously as a chiropractor after the accident until October 6, 2015, when he suffered a heart attack while on holiday. Until the heart attack occurred, Dr. Parker had not as a matter of fact missed any work days or cancelled any appointments. He had creatively made an effort to change his treatment techniques to take advantage of a spring loaded adjusting table and use of body weight positioning to make his treatment of patients more comfortable to himself. He is clearly dedicated to his patients and his practice of chiropractic. That practice had continued without interruption following the accident until the heart attack occurred and the heart attack was not causally connected to the accident.

[60]         No evidence was called which would suggest that after his extended period of years practising as a chiropractor, Dr. Parker was either going to quit that practice or that he was interested in going into some other trade or profession. In other words, there was no occupation denied to Dr. Parker because of the injuries caused by the accident. In the case of Steward v. Berezan, 2007 BCCA 150, Donald J.A. noted quoting from the defendant’s factum “compensation for a mere theoretical loss” is “no indication of a substantial possibility of actual future loss” (para. 9). And at para. 18 of the same decision, the Court concludes “There being no other realistic alternative occupation that would be impaired by the plaintiff’s accident injuries, the claim for future loss must fail”.

[61]         I am satisfied that he has not suffered nor proven on a balance of probabilities a real and substantial possibility of a future event caused by the accident leading to an income loss for him.

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