The claimant in this personal injury appeal(Crimeni v. Chandra,2015 BCCA 131) was injured in two car accidents, the first when she was 17 years old and in her last year of high school. She suffered soft tissue injuries that left her with chronic pain in her back, neck and right shoulder. She attended the Karp Rehabilitation program, sponsored by the Insurance Corporation of British Columbia, ICBC, and also went for physiotherapy and to her chiropractor.
Her trial award totaled $516,398 which included $10,138 for loss of past income; $372,960 for loss of future earning capacity; $11,300 for cost of future care; $15,000 for loss of housekeeping capacity; $7,000 for the In trust claim; and $100,000 for pain and suffering.
The insurance company for the defendant unsuccessfully appealed the awards for loss of future earning capacity and loss of housekeeping capacity. The award for loss of earning capacity:
[15] An award for loss of income earning capacity is intended to put the plaintiff in the position she would have occupied had she not been injured. It must be founded upon a real and substantial loss and must be measured by seeking to approximate the actual economic loss the plaintiff has suffered. The quantum of damages under this head has not been set or limited by convention, such as the non-economic heads of damages discussed by Dickson J. in Thornton v. School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267, at 284.
[16] Whether the award is a wholly erroneous assessment of the claim cannot be addressed by asking whether it is simply “too large”. Such an award cannot be said to be excessive in the absence of a misapprehension of evidence or an error in principle. An award for the loss of the capacity to earn income can only be said to be “wholly erroneous” if it cannot have been arrived at on any reasonable view of the evidence, such as might be the case where there has been an error in the estimation of the pre‑injury stream of earnings or the effect of the injury on earning capacity.
As for loss of homemaking capacity, It is not necessary for the trial judge to identify which of the many specific expenses claimed support the lump sum award made. The cost of future care report identified a range of heavy seasonal housekeeping tasks, any of which might have substantiated the award made by the trial judge.
The appellants also argued that such a loss should be compensated under the heading of non‑pecuniary general damages for pain and suffering. The Court of Appeal stated,
While it is correct to say that a minor adjustment of duties within a family may be compensated by award of non‑pecuniary damages, it is not inappropriate to identify discrete losses. InCampbell and McTavish v. MacGillivray, 2000 BCCA 164, this Court reiterated the views expressed in Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178 (C.A.), that compensation for loss of housekeeping capacity may be by pecuniary or non‑pecuniary damages, and if non‑pecuniary, there was no reason these damages could not be segregated. The non‑pecuniary award for pain and suffering and loss of the amenities of life made by the trial judge does not take into account the loss of the plaintiff’s ability to perform housekeeping tasks. The appellants’ reference to cases where that was done is not particularly helpful. There was evidence upon which the award could be justified; the award could properly be segregated from the general damages award.
Posted by ICBC Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.