In this personal injury case the claimant suffered injury in two motor vehicle accidents for which she was not at fault. The claimant was a 16 year-old high school student, enrolled in Grade 11 when the first car accident occurred. It requires the capital asset approach to assess the value of personal injury case when the claimant is too young to have a fixed occupation.
The main issue in the case was how much the ICBC claim was worth and the extent to which the car accident injuries would affect her future career. The claimant contended that but for her injuries she would have become a medical doctor, or alternatively, a registered nurse, and she claimed damages for loss of earning capacity of between $1,588,584 -$1,750,000. ICBC proposed $250,000.00 as an appropriate award for her loss of earnings. (Bhatti v. Ethier,2018 BCSC 1779)
In the first, most significant, car accident the claimant was a front seat passenger at the intersection of Marshall Road and Primrose Street in Abbotsford. The other vehicle attempted to make a left hand turn from eastbound on Marshall Road onto Primrose Street. There was extensive damage to the vehicle, the airbag in front of the claimant deployed, striking her in the face, damaging her eyeglasses, and causing facial injuries. ICBC paid for some of her physiotherapy and treatment expenses.
In the circumstances, the assessment of her loss of earnings was based on the capital asset approach, given her age and loss of clear occupation. The use of statistical evidence assists in determining what is fair and reasonable in the circumstances, but does not convert the assessment into a calculation. As the judge stated in awarding $925,000 for loss of earning capacity using the capital asset approach:
As the cases emphasize (Reilly v. Lynn, 2003 BCCA 49, quoted above), the task of the Court is to assess the losses, not to calculate them mathematically. In this case mathematical calculation is not possible in any event.
The claimant submitted that non-pecuniary damages, money for pain and suffering, should be assessed at $225,000 and relied on the following cases: Felix v. Hearne, 2011 BCSC 1236 ($200,000); Danicek v. Alexander Holborn Beaudin & Lang, 2010 BCSC 1111 ($185,000); Cikojevic v. Timm, 2010 BCSC 800 [Cikojevic] ($160,000).
The defendants submitted that the appropriate award for pain and suffering in this case is $100,000 relying on these injury cases: Viner-Smith v. Kiing, 2009 BCSC 1387 ($80,000); Shallow v. Dyksterhuis, 2013 BCSC 1761 ($85,000); Villing v. Husseni, 2015 BCSC 1604, aff’d 2016 BCCA 422 ($85,000); Bricker v. Danyk, 2015 BCSC 2404 ($100,000); Miller v. Marsden, 2014 BCSC 2331 ($105,000).
The judge awarded the claimant $200,000 for pain and suffering redcued by 10% for failing to attend psychological treatment. In putting a value on this car accident case the judges took into account that the claimant was a teenager without a fixed career.
Summary of this personal injury award:
Pain and Suffering: $200,000, reduced by 10% for failure to mitigate
Loss of Earning Capacity: $925,000.00
Cost of Future Care: $30,900.00
Out of Pocket Expenses: $10,531.00
Total personal injury award: $1,146,431.00