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.
In contrast, Dr. Adrian, a physiatrist hired by Ms. T’s lawyer, wrote that: Ms. T was now “permanently partially disabled and that she is no longer capable of employment requiring certain repetitive or forceful movements, such as in her work as a room attendant”.
On June 28, 2016 Mr. Justice Groves delivered his reasons for judgment. He concluded that:
- Ms. T’s limited language skills & physical restrictions make it unlikely that any employer will hire her in the future and,
- her ability to earn income has been & will continue to be reduced because of her injuries.
In reaching a valuation of Ms. T’s loss of future earning capacity Mr. Justice Groves considered:
- on the one hand, the possibility that Ms. T would have received gradual pay increases and promotions had she not been in her car accident
- on the other hand, the effect of her age and limited language skills on her income earning capacity absent her accident.
He concluded that absent her accident Ms. T would have continued working until age 65 (or longer) at which time she would have become eligible for a pension.
He then made an award of $350,000 to Ms. T for her future loss of earning capacity.
When the court considers a “loss of future earning capacity” claim, it is to use the following principles:
(a) Judges and juries are to put the claimant in the position financially that she would have been in had the injuries from the accident not happened;
(b) They are to compare the likely future of the claimant’s working life had the accident had not occurred with her likely future working life as a result of the accident; and
(c) A claimant must prove that there is a “real and substantial possibility” that she will experience an actual loss of income in the future as a result of the accident.
See Tan v Mintzler 2016 BCSC 1183