Loss of future earning capacity

This is a recent decision referenced as Winick v Goddard, 2020 BCSC 4 (CanLII) that involved a Plaintiff who was unfortunately involved in three motor vehicle collisions in 2013, 2015 and 2016.  As a result of these collisions, the client suffered chronic pain to her neck and back with resulting headaches and a diagnosis of thoracic outlet syndrome.  Liability was not an issue in this case, but as always is the case, quantum was.

Both counsel were commended in this action by the Court.

It is always important to pay attention to the Court’s comments.  We have recently seen in late 2019 comments from the Court regarding trial management in a case referenced as Sahota v Slupskyy, 2019 BCSC 2215 (CanLII) that occupied much of the Court’s time unnecessarily and a lack of efficiency.  The Vancouver Sun wrote about the Judge’s comments in a recent article.  Taken from that article:

Exasperated, B.C. Supreme Court Justice Nigel Kent has chastised ICBC and personal injury lawyers for being so disorganized that they cause delays and add needless expense to trials.

However, in today’s case Winick, we have an acknowledgement from the court that counsel in the subject case were well organized and prepared for trial:

I wish to commend counsel on the efficient manner in which this trial was conducted.

The main focus of today’s article is on the heading loss of future earning capacity.  This claim requires careful presentation.  In the subject case, the Plaintiff was not yet established in her career, and it is the task of counsel to gather sufficient evidence to prove this loss.  This category of loss always presents with challenges as it involves a consideration of “hypothetical events”.  A quote that describes the challenges of this heading is noted:

Goepel J.A. in Grewal v. Naumann, 2017 BCCA 158, recently summarized the approach to the past and future loss of earning capacity:

[48]      In summary, an assessment of loss of both past and future earning capacity involves a consideration of hypothetical events.  The plaintiff is not required to prove these hypothetical events on a balance of probabilities.  A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation.  If the plaintiff establishes a real and substantial possibility, the Court must then determine the measure of damages by assessing the likelihood of the event.  Depending on the facts of the case, a loss may be quantified either on an earnings approach or on a capital asset approach:  Perren v. Lalari, 2010 BCCA 140 at para. 32. 

Counsel in Winick presented this case very well.  The Court awarded $225,000 for future loss of earning capacity.

The total award in this case is:

General Damages $110,000.00
Past Loss of Earnings $37,648.86
Future Loss of Opportunity $225,000.00
Future Cost of Care and Housekeeping $120,000.00
Special Damages As agreed.
TOTAL: $492,648.86 plus special damages

The legal principles:

    Loss of Future Earning Capacity

Pololos v. Cinnamon-Lopez, 2016 BCSC 81 at para. 133:

  1. To the extent possible, a plaintiff should be put in the position he/she would have been in, but for the injuries caused by the defendant’s negligence; Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185, leave to appeal ref’d [2009] S.C.C.A. No. 197;
  2. The central task of the Court is to compare the likely future of the plaintiff’s working life if the Accident had not occurred with the plaintiff’s likely future working life after the Accident; Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 32;
  3. The assessment of loss must be based on the evidence, but requires an exercise of judgment and is not a mathematical calculation; Rosvold v. Dunlop, 2001 BCCA 1 at para. 18;
  4. The two possible approaches to assessment of loss of future earning capacity are the “earnings approach” and the “capital asset approach”; Brown v. Golaiy(1985), 26 B.C.L.R. (3d) 353 at para. 7 (S.C.); and Perren v. Lalari, 2010 BCCA 140 at paras. 11-12;
  5. Under either approach, the plaintiff must prove that there is a “real and substantial possibility” of various future events leading to an income loss; Perrenat para. 33;
  6. The earnings approach will be more appropriate when the loss is more easily measurable; Westbroek v. Brizuela, 2014 BCCA 48 at para. 64. Furthermore, while assessing an award for future loss of income is not a purely mathematical exercise, the Court should endeavour to use factual mathematical anchors as a starting foundation to quantify such loss; Jurczak v. Mauro, 2013 BCCA 507 at paras. 36-37.
  7. When relying on an “earnings approach”, the Court must nevertheless always consider the overall fairness and reasonableness of the award, taking into account all of the evidence; Rosvoldat para. 11.

The Court assessed this loss with the capital asset approach.

The Plaintiff’s arguments in support of this loss:

  • The plaintiff was less valuable to herself as a “person capable of earning income in a competitive labour market” Perren v. Lalari, 2010 BCCA 140 at para. 11 citing Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.).
  • Plaintiff claims her loss is in the range of 453k and 676K
  • The Plaintiff also claims 37K for an impact to her future lifeguarding work
  • Her employment was delayed by a year as a result of the injury
  • Teaching may no longer be feasible due to heavier bending, stooping and lifting demands
  • The Plaintiff has also suffered a loss of pension value
  • The Plaintiff proposes a figure of 500K

The Defendant’s arguments:

  • The Plaintiff has not established a material prospect that she will ne4ed to engage in part-time work;
  • Defendant proposes a range of 16K to 128K

Taken directly from the case, this is the Court’s analysis and conclusion:

[98]        I rely on the following findings and analysis to assess a proper figure for future loss of earning capacity.

[99]        Although I accept that teaching elementary school children may no longer be feasible for the plaintiff given the heavier bending, stooping and lifting demands, the evidence suggests that the plaintiff will suffer minimal earnings impairment by restricting herself to secondary school positions. Pursuit of a secondary teaching profession will provide a deep and broad array of potential positions.

[100]     The plaintiff has made her own decision to pursue only a part-time TOC position. Based on Mr. Chew’s evidence, I accept that there may have to be accommodations provided to her in order for her to perform full time work. However, the accommodations required are not particularly dramatic. I find that there is a reasonable prospect that such accommodations would be provided within a full time position. The plaintiff also has access to 12 sick days over ten work months to address any flares in her condition. As the plaintiff has not yet tested the availability and suitability of the necessary accommodations, it is not at all clear to me that she could not secure suitable and appropriate full time work. That said, I accept that there is a material risk that she will not have the capacity to perform full time work, or that the necessary accommodations to facilitate full time work will not be provided. But it is just that – a risk.

[101]     There is some evidence of the extent of this risk through the plaintiff’s self-assessment following her practicum and, more objectively, Ms. Khrod’s evidence that she would not request that plaintiff perform more than two days’ work in a row as a TOC for Ms. Khrod. This evidence must, however, be weighed against the evidence of Dr. Paramonoff, who suggests that the necessary accommodations should be manageable within her current workday with “microbreaks”. This in turn is supported to some extent by the evidence of Dr. Badii, who stated:

In my opinion, Ms. Winick should be able to work full time as a teacher in the future, but likely with some accommodations (eg avoiding prolonged sitting/standing, or heavy lifting on a repeated basis).

[102]     The plaintiff suggests that the two examples were not an exhaustive list. I find that had Dr. Badii felt that there were more notable accommodations required, he would likely have listed them. I find that, based on the evidence presented as to the management of today’s modern classrooms, the plaintiff should be able to avoid prolonged sitting or heavy lifting as a secondary school teacher.

[103]     The witness who presumably would have been the most likely to speak directly to this issue is the occupational therapist, Mr. Chew. Unfortunately, his report does leave some room for interpretation. Again, his evidence was as follows:

In summation, if Ms. Winick completes her education and obtains a position as a Teacher, she is likely safe and employable, as she demonstrated the capacity to perform aspects of the demands. However, due to her restrictions, she will need the opportunity to take breaks to rest, stretch, and/or change positions, as well as suitable ergonomics to best manage her symptoms while attempting to remain functional.

[104]     The plaintiff suggests that Mr. Chew’s use of the word “breaks”, when combined with the lay evidence, should be interpreted as breaks longer than her present work environment would allow. I cannot accept this suggestion. I conclude that if an occupational therapist had intended to say that only part time work was reasonable, he would have said so clearly.

[105]     The plaintiff notes that Mr. Chew’s assessment was made before the plaintiff attempted her practicum. The plaintiff suggests that even if Mr. Chew did not recommend part-time work, the plaintiff’s own assessment should now be accepted as the best evidence. However, I have already noted my caution regarding the plaintiff’s self-assessment of her capabilities. The defendant notes that applying caution in relying on a plaintiff’s self-assessment has some support in the case law. Specifically, in Kim v. Morier, 2014 BCCA 63, the Court of Appeal unanimously reversed the award granted at trial for the loss of earning capacity on grounds that the plaintiff had not shown a “real possibility” of diminished ability to compete in the marketplace. Newbury J.A., for the Court, held:

[8] In my view, the trial judge here did err in equating the loss of capital asset here with the plaintiff’s own perception. As the cases demonstrate, that is not enough. The plaintiff must show that it is a realistic possibility she will be less able to compete in the marketplace – with economic consequences, not merely psychological ones. In my view as well, the trial judge’s statement made after the award was pronounced, that Ms. Kim “may” be less capable of maintaining her disciplined approach to work also fell short. As we suggested to counsel this morning, the word “may” is essentially speculative and does not equate to a finding of a real possibility.

[Emphasis added.]

[106] In the face of the competing evidence, I find that the appropriate approach is to acknowledge that there is a material risk that she will not be able to work full time. The competing evidence is simply reflective of the unknown extent of that risk.

[107]     The last factor I must consider in deriving an appropriate award is the potential impact of the future care assistance awarded below. This assistance provided may well result in the plaintiff developing symptom of relief, better coping strategies, and improvement in her emotional health, all of which could increase the likelihood of her being able to work full time.

[108]     Considering all of the evidence and the most likely future course of her capabilities, I conclude that the real risk that she will need to reduce her workload to her targeted 75% level is 50%. I also conclude that an appropriate award under this head of damage is $225,000. To the extent that it is helpful to cross-check this figure against a mathematical anchor, incorporating a 50% risk that she will only be able to work at the 75% level through to retirement yields a present value estimate of $199,428 based on the data provided.

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