In this knee injury appeal(Bradshaw v. Matwick,2011 BCCA 111) the claimant was injured when his vehicle was rear-ended and the other driver admitted fault for the accident. The at fault driver accepted that the claimant suffered soft tissue injuries to his neck and back in the accident but argued that an injury to the claimant’s knee was unconnected to the accident.
The claimant’s evidence was that he had an immediate sensation in his left knee at the scene of the accident. He testified that when he attended his doctor’s office later that day, he continued to have issues with his knee. He also testified that following the visit to the doctor, he felt pain sensations in his knee. The judge accepted the claimant’s knee injury was due to the accident and awarded a total of $268,389.00.
This was an appeal by the at fault driver claiming the trial judge made errors in four areas:
- Finding that a tear in the claimant’s left knee medial meniscus was caused by the accident;
- Finding that the claimant did not fail to mitigate his damages;
- In awarding damages for past wage loss for a period when the claimant was absent from work for reasons unrelated to the accident; and
- In the manner in which he assessed future income loss, and, in particular, in his treatment of capacity to earn overtime pay.
The court dismissed the appeal except in respect of the past wage loss award. That loss was reduced by $3,735 from $34,130 to $30,395. Notwithstanding this minor adjustment of the the injury claimant was substantially successful on the appeal. With respect to the claim for future wage loss the court pointed out at para 33:
“As this Court has noted on many occasions, an assessment of future income loss is an exercise in judgment and assessment, and not a mathematically precise calculation – see Parypa v. Wickware, 1999 BCCA 88 particularly at para. 36. The figures relied on by the trial judge were well within the range that was supportable on the evidence, and do not reflect any error in principle with respect to the assessment. I would not interfere with his award with respect to future income loss.”
Posted by Mr. Renn A. Holness