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Realtor proves commission losses despite many other factors

Can I claim injury-related income loss if I have a bunch of unrelated stressors in my life?  What if I have sent emails about the dismal market, and blamed a strata dispute for my loss of income?

In the 2012 case of Loveys v. Fleetham (2012 BCSC 358), the plaintiff was a 50 year old who suffered injuries in a collision. She advanced a claim for her injuries and losses, including income loss from her work as a realtor. Of significance in her case were the intervening post-collision sagas interfering with her life: she was engaged in litigation over a strata dispute in the months after the collision, and the stresses in her life climaxed in February 2008 and resulted in two hospitalizations for depression symptoms. In one of the visits the notes indicated that she was a successful realtor before the strata litigation consumed her time and money. There was also a note in 2007 and an email in 2008 from her describing the dismal state of the real estate market. In addition, she had disputes with the CRA, a bankruptcy, death of a friend, and ill parents. All of the above led Mr. Justice Armstrong to conclude that she would likely have suffered psychiatric problems regardless of her injuries and that she failed to establish causation on that front. She established causation for chronic pain, and to the extent her psychiatric condition made her vulnerable, she was compensated.

She claimed $115,000.00 in lost commissions from the date of injury to trial, and $385,000.00 from the date of trial to retirement, based on annual losses of $30K. ICBC’s lawyers argued that she had suffered little or no loss as a result of her collision injuries, and all could be attributed to other life events. The plaintiff’s  economist opined that her losses were in the range of $115,000.00 on the assumption that all listings resulted in commission sales. This was inconsistent with her own evidence that 30% of listings resulted in commission sales. The defence economist relied upon her average commission earnings to produce commission loss of $38K, or $22K net of expenses. In awarding $30,000.00 for her commission losses to date, Justice Armstrong found as follows:

[308]      On all of the evidence it seems to me that the plaintiff’s income loss for the year 2007 is in the order of $23,000. I have concluded that this is a reasonable measure of her loss for that year. With regard to the years 2008 and until the trial, I am not satisfied that the plaintiff’s loss can be calculated in the manner suggested by Mr. Tidball or attributed solely to the accident. It seems to me on the plaintiff’s evidence and that of her medical advisers she was experiencing some limitation on her capacity to fulfill the duties of a realtor. However, the evidence convinces me that her lawsuit with the strata owners, the bankruptcy, stresses relating to her parents, and difficulties in her domestic life also impacted her ability to perform at the high level she aspired to.

[309]      I must be able to conclude that on a balance of probabilities she has proven loss of income from 2008 until the date of trial as a result of the injuries suffered in the accident. I am satisfied that her ability to earn income was compromised during those years by the effects of her chronic pain but the evidence is inadequate for me to quantify that loss based on the opinions tendered by the parties. Although it is difficult, I assessed the plaintiff’s loss for the years 2008 until the trial date at $30,000.

In considering her substantial claim for loss of earning capacity, Mr. Justice Armstrong employed the capital asset approach, rather than the $30K per year claimed by the plaintiff, making the following decision:

[313]      Although she will be able to perform substantially all of her duties, I conclude that the chronic nature of her physical complaints will limit her effectiveness and durability in the business of real estate sales. I accept the evidence she gave that she is less able to perform a door-to-door marketing campaign on a sustained basis as she did before the accident. I also accept that her ability to attend to office work on a prolonged basis is limited and that she will need to make adjustments in her schedule to accommodate these shortcomings. In the end I am satisfied there is a substantial likelihood that she will earn less commission income in the future. Ms. Loveys related her immediate post-accident losses to specific opportunities she was pursuing in November 2006 but which did not result in sales. Some of the facts focused on were the result of speculation and hearsay as evidence of the lost sales opportunities in 2007. However, I conclude the amount of income loss and duration of that loss is to be measured against medical and vocational evidence.

[315]      I accept that the plaintiff’s historical earnings patterns are useful in evaluating her future prospects but they are not determinative of the measure of her loss. I do not accept the expert’s opinions as to her loss. I will assess her damages for her future losses on the basis of the”capital asset approach”. In my view the historical earnings patterns coupled with the non-accident related aspects of her health and the uncertainties of the market preclude a mathematical calculation of her impaired earning capacity. In my view the measure of Ms. Loveys’ earnings potential has been diminished by reason of the compensable injuries. Balancing all the evidence, the factors affecting her economic future and the need to be fair and reasonable, I assessed the plaintiff’s loss of future earning capacity at $100,000