In this personal injury case (Watts v. Lindsay 2019 BCSC 2239), the 30 year-old female injured claimant suffered from soft tissue injuries, headaches, depression, flashbacks and anxiety due to a motor vehicle accident. The motor vehicle accident was particularly traumatic as the injured claimant was trapped in her vehicle after impact causing her difficulty in retrieving her young son in the back seat.
The experts agreed that the injuries were permanent, although there was some expectation of improvement of her psychological injuries with future treatment. Despite the fact that the pain was debilitating at times and that the depression impacted her concentration, she continued to work full-time and she obtained a new job with a higher salary and a potential to earn performance bonuses. She testified that since her date of hire her physical and psychological injuries caused her difficulty in meeting her base salary targets and earning any bonuses.
The trial judge relied on the capital asset approach which examines whether the injured claimant as a result of his/her injuries:
- has been rendered less capable overall from earning income from all types of employment
- is less marketable or attractive as an employee to potential employers
- has lost the ability to take advantage of all job opportunities which might otherwise have been open to him/her, had he/she not been injured
- is less valuable to himself/herself as a person capable of earning income in a competitive labour market
The trial judge awarded the injured claimant $145,000 based on a potential 10-20% diminishment of her earning capacity for 10-20 years.
In making this award, the trial judge placed particular emphasis on the following comments made in another case when analyzing whether the injured claimant is entitled to an award for loss of earning capacity despite not losing any income and securing a higher paying position after the accident:
“Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured, or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning ability.”
Tags: loss of earning capacity