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The diminishing future capacity

I am able to do the types of work I did before the crash but still have symptoms, do I still have a loss of capacity? What if I am not likely to lose any money in the next several years, or maybe even decades? Surely, over time these symptoms will catch up to me, does the law provide for that?

In the recent case of Nijjar v. Hill, 2016 BCSC 546 (http://www.courts.gov.bc.ca/jdb-txt/sc/16/05/2016BCSC0546.htm) the plaintiff was injured in two separate crashes. At the time of the first crash she was 25 years old and worked as both a janitor and security guard; jobs she worked at without interruption (apart from a trip home to India) until the time of the second crash. Following the second crash, in May 2013, she continued to work as a janitor for an unknown period of time while she continued her role as a security guard. Eventually, in June of 2013, Ms. Nijar resigned from her security guard position, though Madam Justice Baker found that her loss of income at that point was due to causes unrelated to the negligence of the defendants.

In November of 2013, Ms. Nijar successfully graduated from a Health Care Assistant program and was applying to jobs as a resident care aide. Both her and her doctor noted that she would be able to perform the full scope of her normal duties as outlined in the job description. She secured employment, though not at full time,  working until June of 2014 when she stopped due to complications with her pregnancy. By the time of trial in May of 2015, she was still on maternity leave. With consideration given to the facts that Ms. Nijar was able to do the type of work she had done before the accident, that she decided to work as a care aide by choice, was not incapacitated from her previous employment or likely to lose income in the next few years, or even decades, Madam Justice Baker found that she had lost capacity to work at all types of employment that were previously open to her – awarding $80,000.00 for diminished capacity.

[178]     I have already stated my conclusion that Ms. Nijjar had recovered to the point where she was capable of doing the types of work she had done before the accidents.  I am satisfied that she decided to train to work as a care aide by choice, and not because she was incapacitated from her previous employment

[179]     Nevertheless, I accept Mr. Pakulak’s opinion that the symptoms that Ms. Nijjar continued to experience at time of trial, and that Drs. Arthur and Hershler opined would likely continue to experience in future, have diminished Ms. Nijjar’s capacity to work at all types of employment that were previously open to her.  I accept that the symptoms have resulted in a loss of stamina and that tasks requiring sustained heavy physical performance would result in symptoms that could become incapacitating.  There is also a possibility that the injured cervical disc may become symptomatic in future.

[180]     I am not persuaded, however, that the diminishment of capacity warrants an award of the magnitude proposed by the plaintiff.  Ms. Nijjar did work as a health care assistant for some months during her training and some months prior to embarking on early maternity leave.  Although she had not yet managed to secure full-time employment, the evidence does not indicate that she was having difficulty performing her duties or was curtailing her hours of work due to her symptoms.

[181]     I consider it unlikely that Ms. Nijjar will suffer a loss of earnings in the next several years or perhaps the next couple of decades.  There is a real and substantial possibility that as she ages the symptoms combined with the normal aging process will affect her capacity to earn income.  I award $80,000 for diminishment of the capacity to earn income in future.

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