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TYPES OF DAMAGES - For personal injuries - Loss of earning capacity

Wednesday, May 01, 2019 @ 8:15 AM  


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Appeal by the defendants from the award of damages in a personal injury action. The respondent, a pharmacist, was injured in two motor vehicle accidents suffering neck, shoulder, upper-back, lower-back and gluteal-region injuries. Because of those injuries, she was unable to work for a period of time and her capacity to work was diminished on an ongoing basis due to chronic pain. The trial judge awarded her damages totaling $1,607,200, including $1,322,500 for future loss of earning capacity. The trial judge accepted the respondent’s submission that an award of $45,000 should be made for the loss of an opportunity to move to a better-paying, head office position. He found that the appropriate level of part-time work would be 60 per cent of full-time hours. The appellants argued the trial judge erred in his treatment of the evidence with respect to the respondent’s alleged failure to mitigate her damages due to her not following the advice to engage in an exercise regime and in determining her future loss of earning capacity.

HELD: Appeal allowed. The award for future loss of earning capacity was reduced to $926,200. There was no basis to interfere with the trial judge’s conclusion with respect to the respondent’s efforts at mitigation. He was entitled to conclude that the respondent had attempted to follow medical advice while balancing her profession, her chosen career path, the needs of a young family, and the needs of a spouse building a dental practice. Under the subjective/objective test for the reasonableness of mitigation efforts, the trial judge was entitled to look to the respondent’s personal circumstances to determine whether the course of action she took was reasonable. The trial judge clearly erred in his assessment of the evidence with respect to the degree to which the respondent lost her capacity to work in her chosen profession and erred in concluding the respondent established the loss of the opportunity to move to a management position. In the absence of any evidence that demonstrated the respondent lost a real and substantial possibility of being promoted from a pharmacy to the head office, the award of $45,000 for loss of opportunity was founded upon speculation alone and was set aside. The judge’s analysis of the conflicting evidence regarding the respondent’s residual capacity to work was wanting. While the medical experts all agreed the respondent suffered from chronic injuries and pain that would likely persist for the rest of her life, that was not a basis upon which to prefer one of the competing opinions with respect to the respondent’s capacity to work over the others. The trial judge clearly erred in principle in the way he addressed the competing expert opinions. The estimate of the respondent’s post-accident earning capacity was increased to 80 per cent of full-time work. The trial judge did not err, in the circumstances of this case, when he used male labour market statistics to assess the contingencies affecting the respondent’s claim for loss of income-earning capacity.

Gill v. Lai, [2019] B.C.J. No. 535, British Columbia Court of Appeal, M.V. Newbury, S.D. Frankel and P.M. Willcock JJ.A., April 3, 2019. Digest No. TLD-April292019008