Yoga therapy likely mitigated further loss for this personal injury claimant as the trial judge awards life long Yoga therapy. The Court of Appeal upheld this $28,000 award for a yoga club membership as part of the cost of future care and $100,000 future wage loss award recognizing that the claimant was a high performing individual before the car accident(Clark v. Kouba,2014 BCCA 50). Since the car accident injury the claimant was still able to participate in her recreational pursuits, running the Boston marathon and completing a second personal best time. Prior to the injury the claimant was earning over $100,000 per year.
After the car accident, in which the claimant was rear ended in West Vancouver, she did not take any significant amount of time off work other than time for medical appointments and partial days when she left work due to headaches. She made no claim for past wage loss. Her employers testified that they did not notice any change in her condition after the car accident.
The appellant explained that the award of $28,252.38 was based on the present value of an annual fee of $1,483.22 calculated over the claimant’s life expectancy. The Court of Appeal found that the judge made no error of principle. She relied on the evidentiary link that yoga assisted her to manage her pain that was caused by the accident.
With respect to the loss of earning capacity or more easily understood as future wage loss there was nothing new in this case, $100,000 was found to be reasonable. There must be a “real and substantial possibility of a future event leading to an income loss”. The judge found that the claimant’s chronic pain resulted in a substantial possibility that her ability to work would be reduced. There was evidence to support the finding.
Unfortunately the injury claimant was stoic and did not complain often about her injures. Referring to Hartnett v. Leischner & ICBC, 2008 BCSC 1589, the judge correctly observed at para. 73 that the respondent should not be penalized for that.
Posted by ICBC Personal Injury lawyer Mr. Renn A. Holness, B.A. LL.B.
