In this important and first Supreme Court personal injury case of 2018 the court accepts that a claim for past loss of earning capacity involves a consideration of hypothetical events. Therefore an ICBC injury claimant is not required to prove these hypothetical events on a balance of probabilities when claiming loss of past opportunity to earn.(De Groot v. Heller,2018 BCSC 14)

In today’s case study the claimant was injured in a motor vehicle accident at the intersection of George Ferguson Way and Ware Street in Abbotsford, British Columbia and liability was admitted. As the claimant waited at a red light her vehicle was struck on the front driver’s side.

She suffered soft tissue injury and chronic pain in her lower back and hip, which prevented her from enjoying the activities she enjoyed prior to the accident. However she missed virtually no time from work after the accident.  She  lost one day of work and WorkSafeBC paid her  $127.15. In a CL19 Medical Report to ICBC the doctor also reported that Ms. D had a “back strain years ago”.

In awarding the claimant $50,000 for loss of future earning capacity Judge Greyell had this to say,

[158]  As noted recently by Justice Sewell in Chong v. Nguyen, 2017 1564, at paras. 100 – 101, in assessing damages for lost earning capacity, whether past or future, the court must consider hypothetical events that need not be proven on a balance of probabilities. See Grewal v. Naumann, 2017 BCCA 158, at paras. 48 and 49.

[159]  I am of the view that [Ms. D] is able to work full time, subject to an employer accommodating her need to get up and stretch from time to time. Her work tolerance may improve once she has had the opportunity to take further physiotherapy as provided for in this award, but she will likely remain limited in the range of positions open to her.

[160]  While circumstances may change… I think it will be a number of years before Ms. D’s present job is placed in jeopardy as a result…

[161]  I am of the view that any award for lost earning capacity must be modest…

[162]     Ms. D has suffered some loss of income earning ability and is accordingly entitled to some assessment of compensation, however imperfect such an assessment may be. Taking the factors outlined above into account, I award damages for loss of future earning capacity of $50,000, roughly equivalent to a two year salary in present day dollars.

In summary the court awarded the claimant the following:

a)    $75,000 in non-pecuniary damages (pain and suffering);

b)    127.15 for past wage loss;

c)     $5,122.93 in special damages;

d)    $35,000 for cost of future care;

e)    $5,000 for past loss of housekeeping capacity;

f)      $50,000 for loss of future earning capacity

     TOTAL: $170,250.08

In 2018 and into the future claims for past loss of opportunity to earn will be compensated as long as there is a real and substantial possibility.  This effectively eliminates the use of  the more difficult balance of probabilities test wherein proof of an event would have to be greater than 50% for hypothetical events.

Watch our short video to learn more about how judges decide personal injury cases.

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.


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