This was an appeal of a personal injury award for loss of future earning capacity. The judge awarded the 61 year old claimant $45,000 representing six months of income, and potential loss of pension.
The claimant was driving on Hastings Street in Burnaby, when the defendant suddenly moved into his lane of traffic and struck the left side of his vehicle. The defendants admitted liability for the car accident. (Boucher v. Bemister,2023 BCCA 17).
The court found there was a real and substantial possibility that the claimant would be precluded from working until 65.
Loss of Future Earning Capacity
The judge accepted that the claimant’s durability to perform his job had been compromised, even in the period until his retirement. She was satisfied that there was a real and substantial possibility on the evidence that the continuing pain may preclude him from continuing in his job until the age of 65, thereby causing a pecuniary loss, which is more than mere speculation.
The judge corrected articulated the legal test, citing Dornan v. Silva, 2021 BCCA 228; Rab v. Prescott, 2021 BCCA 345; and Lo v. Vos, 2021 BCCA 421, and para. 47 of Rab.
Banked Sick Days
The appellants contended that the claimant had no past wage loss claim because the income for the days he was off work were covered by his sick day bank. As a matter of consistency, if he suffered no compensable past wage loss, he could suffer none in the future if he was entitled to be paid out of his sick day bank.
In the courts view, the claimant sought to be made whole for the use of his sick days by advancing a future loss claim. His admission that he had not suffered a loss of employment income was only an admission of fact, it is not a judicial admission that the availability of a bank of sick days extinguishes a claim for loss of earning capacity.
This issue had the potential to raise issues about double recovery, collateral deductible benefits, and so on. The court would have little difficulty in concluding that benefits of this kind, negotiated in a collective agreement, would not be deductible.
The Court of Appeal did not agree that no compensable loss arose because he had sufficient sick days banked to protect him for any possible financial loss. This argument was not advanced at trial. It was a new issue on appeal. It raised issues about the circumstances in which double recovery is or is not permissible and a proper evidentiary foundation was not laid at trial. The appeal was dismissed.