Headaches result in Loss of Earnings

Headaches result in Loss of Earnings

A personal injury award for loss of future earning capacity was awarded to this claimant despite his janitorial business continuing to be successful and thriving since the car accident in question(MacDonald v. Joseph,2015 BCSC 1461)

The claimant was a 29 year old passenger when the head on car accident occurred on Vancouver Island. The airbags deployed in the claimant’s vehicle, crushing against his chest, and he was forced against his seatbelt. The dashboard came down onto the claimant’s legs. He was taken to hospital experiencing immediate pain in his shoulder, chest, knees, back and neck. Headaches developed within a couple of days.

The claimant sustained numerous soft tissue injuries in the accident including cervical strain, dorsal and lumbar strain, rotator cuff strain and muscle strain of the right inner thigh and groin. He also suffered contusion and bruising of the left knee and nerve bruising of the left foot. He had trauma related headaches.

The claimant had substantially recovered from the accident after 18 months but he continued to suffer and continues to suffer accident caused symptoms related to migraine headaches, lower back pain and occasional neck pain. As the claimant’s prognosis was for persisting headaches with unresolved low back and neck pain he was placed at the higher end of the range for and he was awarded $90,000 for pain and suffering.

The claimant’s janitorial business has thrived since the accident, despite his ongoing headaches. In awarded the claimant $40,000 for loss of future earning capacity the judge stated,

[36]   The threshold question is whether the plaintiff has proven that there is a real and substantial possibility of a future event leading to an income loss (Perren v. Lalari, 2010 BCCA 140 at para. 32 (Perren); Midgley v. Nguyen, 2013 BCSC 693 at para. 236 (Midgley); Morgan v. Galbraith, 2013 BCCA 305 at paras. 24 and 53). If the plaintiff has established an impairment of earning capacity in the sense of ongoing symptoms, then he may go on to quantify the loss of earning capacity either on an earnings approach or on a capital asset approach as in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (Brown) (Perren at para. 32). There must be cogent evidence to trigger any of the four considerations in Brown (Moore v. Cabral, 2006 BCSC 920 at para. 78).

[37]  In the circumstances here as established by medical reports and the plaintiff’s evidence of continuing headaches that do prevent him from working, the plaintiff has shown a real and substantial possibility that continuing headaches probably will prevent him from working from time to time in the future. He satisfies the third criteria in Brown that he is less valuable to himself as a person capable of earning income in a competitive market.

[38] Assessment of the value of this loss cannot just be based upon the plaintiff’s statement, accepted for purposes of calculation of past wage loss, of loss of earnings of 20 hours per month due to headaches. The doctors both considered that the plaintiff could work full time and his career was not shortened. He will only miss the occasional work day into the future. It is not possible to say exactly how many days per year this will be. However, based upon a wage of $12.50 per hour, the loss is about $100 per day. Both parties agree that a 30-year multiplier should be used.

[39]  The assessment here is not mathematical but based upon the evidence, all the contingencies, and the overall fairness and reasonableness of the award (Midgley at para. 237).

[40]  Damages for loss of future earning capacity are awarded in the amount of $40,000.

The total damages awarded by the judge were as follows:

1.  Pain and suffering  in the amount of $90,000;

2.  Past wage loss in the amount of $34,350;

3.  Loss of future earning capacity in the amount of $40,000;

4.  Costs of future care in the amount of $8,000; and

5.  Out of pocket expenses in the amount of $5,580.07.

Posted by Vancouver Car Accident Lawyer Mr. Renn A. Holness, B.A. LL.B.

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