Ms Slater, 41, an RCMP officer, was injured in a rear end collision 3.5 years prior to her trial. As a result of her permanent whiplash injuries, she was restricted to ‘desk work’ & would likely never return to active duty. The judge valued her future loss of earning capacity at $270,000 on the basis that Ms S: Continue reading
Mr. McLatchie, a 46-year-old server, continued to suffer from chronic pain & a psychological reaction 5 years after his MVA. He claimed that his injuries limit his work ability.
At trial, he admitted that he had received tax credits & health benefits from governments by under-reporting his income to the CRA. Continue reading
Ms. Bains was 27 when she was injured in a car accident in 2013. She was interested in finding a career as a law enforcement officer. This would have required her to pass challenging strength & endurance testing.
She claimed at trial 4 years later that she was no longer able to do this work due to her ongoing injuries & limitations. Continue reading
Ms. Cantwell, 35, was born with medical conditions causing her chronic chest pain & mobility issues. Despite these conditions, she lived a full life & worked full time.
After a minor MVA in 2011, she suffered significantly more pain, but she continued to work. In 2013 she experienced a “popping” feeling while shoulder-checking. After that, her chest pain was severe. Continue reading
Mr. Fleming owns 50% of a small business that sells roofing & siding materials. His company was doing well until 2 years before the first of his accidents. It then began losing money.
His accidents caused him lasting low back pain & his company’s losses increased after his first accident. He claimed that his company lost more money than it would have without his injuries. Continue reading
In order to do this, a judge uses a monetary award to put the claimant in a financial position as close as possible to what she would have been in absent her accident. This involves comparing her working life “absent the accident” to it “as a result of her accident”. This is no easy task with a young claimant who had not even completed secondary school when her accident occurred. The judge awarded Ms Ellis $730,000 for this category of her damages. Continue reading
Mr. Lafond, 57, continued to have pain in his right shoulder, neck & back as well as ongoing headaches, anxiety & depression at his trial 6 years after his car accident & his future did not look bright. He was a stoic person not given to complaining. Continue reading
Mr. Catling, age 56, was broadsided in a car accident. Four years later at his trial, he complained of ongoing pain in his back, knees & elbows which doctors diagnosed as moderate soft tissue injuries.
His work in his own small plumbing business involved very physical labour & working in awkward body positions. ICBC’s medical expert was optimistic about his recovery but the expert hired by Mr. C’s lawyer was quite pessimistic.
8 months prior to her first of two accidents, Ms. Brown began a new career as a certified dental assistant. At the time of her trial she suffered from low back pain & vision problems.
The judge found that before her mva’s she had been doing well & had opportunities to advance in the dental field.
Ms. Kim had studied to be a dietitian in Korea. She moved to Vancouver with limited English 3 years before her accident & planned to train as a dietitian here. Before her accident, she worked part-time as a waitress & studied English.
After her trial, the judge concluded that she:
- has chronic back pain & depression,
- is likely permanently unemployable & overall less capable of earning income for the rest of her life, but
- may possibly be able to have a less well-paid career as a nutritional aide or waitress.
Mr. Churath, age 46, was rear-ended in a car accident. Five years later at his trial, he complained of back pain which radiated down to his right foot, continuing disability & resulting depression.
Video ICBC investigators took showed that Mr. C was less limited in his activities than he claimed.
One year before his accident, he suffered a low back disc injury. After surgery, he was left with only minor pain & limitations at the time of his car accident.
Mr. Dhaliwal was 24 years old when he went to trial. He had posted on Facebook photos & opinions about his job & recreational activities & his thoughts on the police. He claimed that he continued to suffer from neck, shoulder & back pain & that his pain impaired his ability to work.
ICBC’s lawyer used his postings to argue at trial that:
- he was not believable,
- he no longer experienced pain &
- the court should reject his claims that he intended to become a police officer & that he can no longer do this.
Mr. Day was a professional photographer. A jury decided that he was no longer competitively employable as a result of his car accident. It awarded him a total of $1,559,276 for all categories of his damages. Continue reading
In 2011, Ms. Taba sustained a moderate soft tissue injury to her neck & back & a blow to her head from her accident. She claimed that as a result she could not enroll in a PhD program, which required a major thesis. Instead, she applied for the master’s degree program. She claimed compensation for her reduced future income due to her inability to get a PhD. Continue reading
Ms. Villing suffered from continuing low back pain at her trial 5 years after her accident. This caused her some difficulty handling her part-time job as a legal assistant. ICBC hired an orthopaedic surgeon to assess Ms. V. He stated that a procedure called a rhizotomy would improve her back pain but would need repeating over time.
In spite of the optimism of the surgeon ICBC hired, the trial judge awarded Ms. V. $100,000 for her loss of future earning capacity. ICBC appealed this award to the B.C. Court of Appeal. Three of its judges affirmed the trial judge’s award. Continue reading
Ms. Virk suffered neck, shoulders & back injuries in an accident. She returned in time to her job as an HR administrator which paid $41,600 per annum. She left this job about 2 years after her accident due to her ongoing pain. After three months at another job, she found her current position as a talent acquisition manager for a marketing company with an annual salary of $63,000. This is $21,400 more than she earned prior to her accident. Continue reading
Ms. Tan was 52 years old at the time of her mva. She had been working as a room attendant cleaning guest rooms for nearly 16 months at The Westin Wall Centre Hotel (“The Westin”). By her trial date she had not returned to work at her former physically demanding or any job since her mva due to her chronic pain & cognitive & psychological issues.
ICBC’s lawyer argued at trial that:
- Ms. T’s loss of future earning capacity award should be small and,
- she will be able to get a job again if it involves her being seated or performing only light-strength work.
David Mackey was 17 years old when he was visiting BC from the US. He was swinging on a severely corroded lamp post. It broke & he fell ten meters below. & suffered a severe brain injury.
Mr. Justice Macintosh heard a 34 day trial to assess relative degrees of fault and Mr. Mackey’s damages including his loss of future earning capacity.
Mr. Mackey’s lawyers argued that absent his accident he would have become an orthopaedic surgeon in the USA even though he was still in high school when he was injured.
The defence argued that the claimant’s scholastic performance up to the accident date would have barred him from achieving the qualifications needed to eventually become an orthopedic surgeon.
Ms. Niijar went to trial claiming damages arising from her chronic headaches & neck & back pain caused by two accidents. Madam Justice Baker concluded on March 30, 2016 that her:
- capacity to work at any type of employment she wanted was reduced due to her injuries & her loss of stamina and
- career goal of being a care aide could be affected because this work will require her to have a strong back so she can do heavy lifting.
She considered the opinions of her family doctor, her functional capacity evaluator & her treating medical specialist & the medical specialist ICBC chose.
Mr. Arletto’s injuries from an mva included back and shoulder pain. His doctors finally determined that they were permanent. He was employed as a longshoreman for 14 years prior to his accident.
Ms. Litt was involved in two car accidents, one in 2003 and another in 2010. They left her with an ongoing pain disorder. She sought compensation in part for her psychological injuries resulting from her accidents. She testified that her mood was awful – she felt angry and irritable all the time.
ICBC hired a psychiatrist, Dr. Levin. He wrote a report & then testified at trial. He claimed that because Ms. L. returned to work and school after her accidents she could not have a psychological pain disorder.
Ms. Castro sought compensation at trial for injuries she sustained in two accidents from which she suffered broken ribs, bruising, chronic pain and a major depressive disorder.
She claimed that her ability to earn income in the future has been reduced because she could not do any heavy lifting. This is required of a health care aide. She had previously worked as a server in a restaurant. She then went back to school to train as a health care aide. She did not get a chance to work in her field before she was injured.
She sought $100,000 for her loss of future earning capacity.
Ms. Hubley sought damages following a car accident in Fort St. John when she was 57. She suffered a knee injury which did not resolve and requires surgery. She also suffered soft tissue injuries which resolved within six months.
Over the 3.5 years since her accident her annual income at a sawmill almost doubled because she logged more and more overtime hours after a short period off work.
ICBC’s lawyer argued that no award should be given for loss of future earning capacity since her increased earnings suggested that the accident did not impact her ability to earn income.
Ms. Best went to trial in Vancouver in September, 2015, two & a half years after her car accident.
She worked long hours on a computer and as a manager until she got a job before her trial teaching her trade at the Vancouver Film School.
Ms. Best claimed that:
- people in her trade have to sit for prolonged periods of time, and
- her future ability to earn income was diminished because of her inability to do so due to her ongoing neck & back injuries.
Ms. K suffered whiplash type injuries in a 2007 car accident. Her pain became chronic and she became depressed. The consensus of the medical experts at her trial was that “her chronic pain is unlikely to resolve and the focus of her treatment should be on pain management, not cure.”
Mr. Justice Blok concluded that “there is a significant psychological aspect to Ms. K’s’ ongoing difficulties. They may not rise to the level of a psychiatric disorder but it is plain that psychological issues play an important part in her level of functioning and her approach to rehabilitation.” Factors unrelated to the accident contributed to her depression.
Mr. Gaudreault was rear-ended by another vehicle in Parksville in 2008. He sustained a shoulder injury that rendered him unable to operate his home renovation business.
Mr. Grewal was a mobile security guard who was involved in a motor vehicle accident in Langley. He sustained severe injuries. They included broken ribs, chest abrasions and chronic pain in his shoulders and knees. He also experienced recurring bouts of depression. Mr. G finally went to trial for compensation for his injuries eight years after his accident.
Ms. Karlsson was walking on the sidewalk near a shopping mall in Burnaby when a vehicle struck her. The accident was serious and she required major surgery. The accident caused Ms. K to lose the function of her dominant right arm and she suffers from chronic pain.
After her car accident in 2010 Ms. Dickenson suffered from headaches as well as neck and back pain. Although her symptoms gradually improved she continued to suffer from back pain if she sat too long. This will likely continue in the long term.
Mr. Ishii sought compensation for a car accident in which he fractured both his arms and his right leg. All his doctors expressed the opinion that he would not be able to fully recover. He had a permanent disability in his right wrist. This severely impaired his ability to do repetitive movements or work. At the time of his first accident he was only 18 years old. He wanted to become a pilot or an automobile mechanic.
Mr. Curry was involved in a car accident that left him with a hip injury. This injury led him to be completely unable to work as a tow truck operator. He sought compensation for loss of future income at trial.
After she was injured in two car accidents Ms. Wagner developed a generalized anxiety disorder and post traumatic stress disorder (PTSD). The main issue at trial was whether or not the claimant’s pre-existing psychological profile put her at risk for developing some of her symptoms absent the accident.
Mr. Dhaliwal’s car accident left him seeking compensation at trial. The accident left him unable to sit cross-legged as a priest in a Sikh temple in Kelowna. One of his claims was for loss of future income. This is called in law “loss of future earning capacity”.
On April 2, 2015 the judge accepted that Mr. D would have likely worked until age 75 absent his accident.
Ms. McKay complained at her trial of ongoing pain. Her lawyer argued that her ongoing pain prevented her from performing her job duties at work and claimed $25,000 for her loss of future earning capacity.
The judge disagreed. On Feb 17th, 2015 she found that Ms. M’s complaints of pain alone did not establish that her pain prevented her from performing all of her duties at work. Accordingly, the judge declined to make any award for loss of future earning capacity.
Complaints of ongoing pain are generally not enough to prove such a claim.
Mrs. M. was a teacher. She suffered a mild traumatic brain injury in a car accident. Before her accident she had a few challenges:
- she had received numerous treatments for psychological counseling;
- had difficulty coping with the normal stressors of day-to-day life; and
- was at risk for anxiety and depression.
The judge awarded her $350,000 for her loss of future earning capacity. Continue reading
Mr. Tabatabaei was not your average claimant. At times, he used opium and heroin. He had enrolled in a treatment program, but had relapsed from time to time.
He was a skilled carpet cleaner before he was involved in a car accident. Since then he suffered from a shoulder injury that hindered his ability to work. Although he was still capable of working, he must now work slower in order to avoid aggravating his shoulder injury. Continue reading
Ms. Mastromonaco was uncertain about her future as a teacher before her accident in 2009. She had previously taught in a religious school overseas. More recently, she taught at a public school in BC.
She derived great pleasure from teaching overseas. This was a lower-paying job than teaching in B.C. The judge decided on 2015 that as a result of her accident her ability to teach was compromised. The judge had to decide whether to award her lost future earning capacity based on the salary of an overseas teacher or that of a B.C. teacher. Continue reading
On January 25th 2015, Mr. Justice Ross accepted that Mr. Mothe lost $3,000 that he would have earned working overtime as a longshoreman had he not been injured in a car accident. This was his “gross past loss of income”.
The judge awarded Mr. Mothe $2,100 for his net past loss of income. He reduced $3,000 by the amount of additional tax that Mr. Mothe would have paid had he earned this extra $3,000.
In contrast, judges do not reduce awards for loss of future earning capacity by income tax Continue reading
The median retirement age in Canada in 2011 was 63.2 for men and 61.4 for women.
One challenge lawyers face is persuading a court (or ICBC during negotiations) that if our client not been injured he or she would have likely worked well past the median retirement age.
Fay Cornish went to trial in September, 2014 relating to her pain and depression since her car accident in early 2010. The judge concluded that she was permanently disabled from any type of work.
Prior to her accident she was working part time as a care home care aide earning $10 to $12 per hour.
She claimed that while she had not yet started the business when her accident occurred:
- she would have successfully opened and operated a home care business from her home had she not been in her accident;
- she would have earned over $100,000 per year operating this business considering the large difference between what firms charge patients for home care and what firms pay home care workers;
Madame Justice Russell then dismissed the plaintiff’s claim for loss of future earning capacity in the case of Le v. Point on June 30, 2014. She concluded that the evidence showed that the plaintiff was able to do a desk job at a bank and it “does not demonstrate that but for the accidents there was a real and substantial possibility that the plaintiff would have had a successful and lucrative career as an elite golf professional.” Continue reading