When presenting a claim on behalf of your client for past and future income loss, there are a number of matters to focus on and we have enumerated a list of some key questions to consider.
This article is based on a recent published trial decision in which the Plaintiff suffered soft tissue injuries caused by a motor vehicle accident that occurred on March 13, 2014. The soft tissue injuries did impact the Plaintiff’s work and a claim for past and future income loss was successfully presented and awarded.
The decision is referenced as: Gamesaee v Priest, 2020 BCSC 1763 (CanLII)
The claim settled at trial for the following:
| General damages | $ 100,000.00 |
| Past income earning capacity loss | $ 40,000.00 |
| Future income earning capacity loss | $ 65,000.00 |
| Future care | $ 16,184.25 |
| Special damages (agreed) | $ 5,291.00 |
| Total | $ 226,475.25 |
Liability was not in dispute. The only issue was past and future income loss.
Considerations in presenting a claim for past and future income loss:
- As of the date of the accident, where was the Plaintiff employed?
- When did the Plaintiff start working at his/her position?
- Present a history of the Plaintiff’s work life.
- Identify any successes or highlights of the Plaintiff as an employee.
- How many hours did the Plaintiff work per week?
- Perhaps explain the reasons for a “move” from one job to the next to offer some history and insight, eg: better pay, commission, opportunity for growth, etc.
- Consider witnesses that may offer evidence of the job that the Plaintiff is working in.
- Provide evidence of remuneration.
- Describe the job itself, and the physical aspects that are required in the type of job that may impact your client.
- Outline the type of knowledge required for the employee to succeed in the type of job he/she works in.
- Are there any options for accommodations in the type of work that would make the client’s job easier.
- Consider speaking to supervisors, managers, employees to learn more about your client’s role/position.
- Be aware of the expectations of your client in this specific role.
- Review opportunities for advancement for your client at his/her place of employment.
- Review opportunities for advancement, and increased earnings.
- Review the client’s abilities on the job prior to the accident and compare the changes post accident:
- Unable to work longer hours
- Physical limitations since the accident
- Difficult movements in aspects of the job that increases pain or not able to satisfy
- Identify the impact on the client’s health, eg: pain, fatigue, etc.
We will quote from this decision in the approach the Court took in awarding past and future income loss in this case. It is always helpful to review the decision in its entirety:
[41] As I noted, the plaintiff seeks to have his income loss claim assessed using the capital asset approach, rather than an earnings calculation. I agree that the capital asset approach is more appropriate here, because, in part, the loss here is not susceptible to a calculation.
[42] Even if the plaintiff made as much after the accident as before, he has suffered a loss of income earning capacity. As Ms. Craig’s evidence supports, he cannot perform the same hours work that he would have been able to perform but for the accident, and even if he could, it would be with pain that he did not have before. He has lost the opportunity to work more hours than he has since the accident. That translates into a real and substantial possibility of income loss.
[43] Moreover, it is well established that a plaintiff who makes the same after an accident, but endures pain or difficulty and “toughs it out” in order to do so, has still suffered a loss of capacity: see for example, Ibbitson v Cooper, 2012 BCCA 249. This is another reason to assess the income loss claim on the capital asset approach.
[44] The plaintiff meets all of the often-cited characteristics set out in Brown v Golaiy, 1985 CarswellBC 830; 26 B.C.L.R. (3d) 353 (BCSC) at para. 8 (which I will not set out here).
[45] In appropriate circumstances, the capital asset approach may be applicable to past income loss as well as to future income loss: Ibbotson. Here, except for the possibility of future contingencies, there is no meaningful difference in the evidence or the facts between past and future loss here and I find the capital asset approach to be the preferred one. In fact, the defendant approached the claim on that basis.
[46] The difficult question here, as in most cases, is the valuation of the claim. Although Mr. Gamesaee provided an actuarial report dealing with the multipliers to reduce the future loss claim to a present value, he did not provide an economic analysis or any statistics dealing with the average earnings of auto salespeople.
[47] Beyond Mr. Gamesaee’s earnings, there are 2 potential data points to assist in assessing the loss. A salesman from Langley Chrysler, Mr. Zbediak, was asked in cross-examination what his income was for 2012 to 2018. He did not have any documentation with him and appeared to be guessing for most of the years in question. I do not see how I can place substantial reliance on that. That is not a negative comment on his credibility; rather he was not asked to bring the information in advance.
[48] More helpful or at least more accurate was the evidence of Mr. Bradner who was the sales manager at Langley Chrysler. He came to court with the average income for salespeople who worked for the dealership for 6 months or more. Both sides accepted the accuracy of his evidence. The following sets out these averages along with the income of Mr. Gamesaee.
| YEAR | Plaintiff T4 INCOME | Langley Chrysler Average | Plaintiff’s employer |
| 2012 | 67,452 | Not provided | Dueck ($38,310) /Brian Jessel ($29,141) |
| 2013 | 66,705 | 104,569 | Brian Jessel ($12,190)/ Dueck ($54,515) |
| 2014 | 112,259 | 124,909 | Dueck ($13,174) / Langley Chrysler from Feb 2014 ($99,084) – accident March 13 2014 |
| 2015 | 98,859 | 106,982 | Langley Chrysler |
| 2016 | 68,311 | 87,808 | Langley Chrysler |
| 2017 | 107,976 | 94,457 | Langley Chrysler |
| 2018 | 65,477 | 70,492 | Langley Chrysler ($50,278) / Travelhome ($15,199) |
| 2019 | 73,816 | 82,825 | Travelhome |
[49] Even this information is of limited use given that Mr. Gamesaee was only at Langley Chrysler for 3 months before the accident and in 2019 moved to Travelhome. Nevertheless, both parties relied on the above figures, and there must be some tethering of the plaintiff’s claim to evidence.
[50] The plaintiff says that his past income impairment ought to be assessed at between $75,000 to $110,000 and future income loss, after taking contingencies into account, at $215,000 to $358,000. He argues that but for the accident he would have been able to stay at Langley Chrysler which has a more rewarding commission structure. That is somewhat contradicted by his evidence that one of the reasons for his move to TravelHome was Langley Chrysler’s change in bonus structure.
[51] For his part, the defendant argues that past income loss, if any, ought to be assessed at $36,000 and future income loss at $50,000.
[52] Mr. Gamesaee’s former manager at several dealerships prior to Langley Chrysler said that he was a perfect fit for sales and loved the job. Customers liked him. However, there is no evidence that Mr. Gamsaee was regularly in the top tier of sales people at the dealers he worked at. His priority was his family life. He never worked nor is it likely he would have worked the hours of another salesperson who was the top earner at Langley Chrysler to whom Mr. Gamesaee referred several times. That person’s income for several years was above $200,000, reaching $275,000 in 2014. Mr. Bradner testified that he “lived at the dealership, working every hour possible, except for Christmas”. Any expectation Mr. Gamesaee had of reaching that level was unrealistic: it is not borne out by past history, performance or other evidence.
[53] As the defendant has pointed out, the rough difference between the plaintiff’s post-accident income and that of the Langley Chrysler average is approximately $6,000.
[54] Taking all of the circumstances into account as best I can, I assess Mr. Gamesaee’s past income earning capacity claim at $40,000. As suggested by counsel, they will make the necessary tax calculation.
[55] With respect to future income loss, the defendants do not urge any major contingences (beyond those included in the present value tables, which allow for things such as the prospect of unemployment). I assess Mr. Gamesaee’s future income loss capacity at $65,000.
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