In the personal injury case Kherani v. Da Silva, 2024 BCSC 1349 the claimant sought damages for personal injuries arising from a 2017 motor vehicle accident. The collision affected her ability to work as an ophthalmic surgeon, leading to a significant loss of income-earning capacity. This case summary focuses on the plaintiff’s loss of earnings claim and her work history.
Work History Important to Loss of Earnings
The injury claimants was a 52-year-old highly specialized oculoplastic surgeon. Before the accident, she maintained a rigorous and successful practice. She held medical degrees from the University of Alberta and completed her residency and fellowship at the University of Pennsylvania. The claimant established a thriving oculoplastic and orbit surgery practice in Burnaby, BC, while also working part-time in Calgary, Alberta.
In Burnaby, she operated a clinic that primarily served adult patients, handling both major and minor surgeries. Her practice included consultations, pre- and post-operation examinations, and surgeries. On average, she performed five to six major surgeries and eight to ten minor surgeries per operating day and saw 50 to 60 patients per clinic day. She also worked one week per month in Calgary, performing surgeries and consultations at her brother’s clinic. Her practice was expanding, with a waitlist of 15 to 16 months at the time of the MVA.
Impact of the MVA
The collision caused significant injuries, including persistent and severe headaches, neck, back, shoulder, hip, and knee pain. These injuries severely restricted her ability to perform surgeries and see patients at her previous pace. Post-MVA, the claimant’s daily patient consultations dropped to 20-25 per day, and she could only perform three to four surgeries per operating day, compared to her pre-accident numbers.
Loss of Income-Earning Capacity
An award for future loss of income-earning capacity involves a comparison between the likely future of the plaintiff if the MVA had not happened and the plaintiff’s likely future after the MVA. By definition, such a comparison involves possibilities. There is no right answer, but whatever it is it must be tethered to the evidence: Dornan v. Silva, 2021 BCCA 228 [Dornan] at para. 134.
A plaintiff is not required to prove these hypothetical events on a balance of probabilities. The plaintiff must demonstrate no more than that a future financial loss is a real and substantial possibility and not mere speculation. If the plaintiff does so, the Court must then determine the measure of damages by assessing the likelihood of the event. The loss may be quantified either on an earnings-based approach or on a capital asset approach: Rab v. Prescott, 2021 BCCA 345 at para. 48. The analysis requires that the Court to:
a) determine whether the evidence discloses a potential future loss of capacity (e.g., chronic injury, future surgery or risk of future functional loss);
b) determine whether on the evidence there is a real and substantial possibility that the future loss of capacity will cause a pecuniary loss; and
c) If so, assess the value of that possible future loss, including an assessment of the relative likelihood of the possibility occurring.
The plaintiff’s loss of income-earning capacity was assessed based on her pre- and post-MVA work history and medical evidence. Several expert witnesses provided testimony on her condition and the impact on her ability to work.
Prior to the MVA, Kherani saw up to 60 patients daily and performed numerous surgeries. Post-MVA, her capacity was reduced to approximately 50% of her pre-accident numbers. Her Burnaby clinic’s potential income was significantly affected, with an estimated 30,000 fewer procedures performed since the accident.
The claimant was also forced to close her Calgary practice after her shoulder surgery in 2023 due to her inability to maintain the rigorous schedule required. This closure resulted in a substantial loss of income from the Calgary clinic.
Quantifying the Loss
Economist Farida Sukhia provided a detailed analysis of the plaintiff’s past and future loss of income-earning capacity. The past loss of income-earning capacity was calculated at $1,928,800 gross, reduced to $1,195,856 after considering applicable tax rates. The future loss of income-earning capacity was assessed at $4,775,000, considering the significant reduction in her ability to perform surgeries and see patients.
The Supreme Court of British Columbia awarded the claimant $6,400,570 in total damages, including $144,000 for pain and suffering , $1,195,856 for past loss of income-earning capacity, $4,775,000 for future loss of income-earning capacity, $240,000 for the cost of future care, and $45,741 in special damages.
