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

Tuesday, September 28, 2021 @ 5:52 AM  


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Appeal by the defendants from the damages award, including $2,400,000 for future loss of income, granted to the 42-year-old respondent for injuries sustained in two motor vehicle accidents that occurred in 2012 and 2016. In 2012, the respondent, while on duty as an RCMP officer, was injured when a suspect reversed his vehicle into the respondent’s police cruiser. The respondent experienced pain in his neck and back and significant headaches. He entered a graduated return to work program in 2013. He was cleared for full active duties in 2015, having taken a year of paternity leave. In the 2016 accident, the respondent was a passenger in a police cruiser that was rear-ended by a driver who fled the scene. His neck and back pain and headaches were aggravated by the second accident. He was subsequently diagnosed with a concussion and a mild traumatic brain injury associated with sensitivity to noise and light, poor memory and mood swings. The respondent unsuccessfully attempted a graduated return to work in 2018. He remained on medical leave at the time of trial.

HELD: Appeal allowed. It was not an error to find the respondent’s back and neck injury and headaches that resulted from the two accidents were indivisible. The trial judge erred in law in failing to engage in the assessment of causation of the respondent’s mild traumatic brain injury. He erred in finding all the injuries suffered by the respondent were indivisible. The evidence was undisputed that the mild traumatic brain injury was causally related to the second accident and unrelated to the first. It was an error to find the first tortfeasor liable for that distinct injury and an error not to engage in the complicated task of assessing the damages attributable to each distinct injury. The trial judge erred in assessing the respondent’s future loss of income earning capacity by failing to account for the duplication of the past wage loss, the respondent’s own projections for promotion, some basic contingencies, and some residual income earning capacity.

Neufeldt v. Insurance Corporation of British Columbia, [2021] B.C.J. No. 1915, British Columbia Court of Appeal, P.M. Willcock, B. Fisher and P. Abrioux JJ.A., September 3, 2021. Digest No. TLD-September272021004