Injuries suffered in a motor vehicle accident can cause some individuals to retire earlier than planned especially if the injuries interfere with the ability to continue working.
Claims for wage loss from early retirement are often very contentious. ICBC and other insurance companies often will argue that it is impossible to know exactly what would have happened to the injured claimant’s retirement plans if the accident never occurred. Alternatively, it is often argued that the injuries did not impact retirement plans and that there are other reasons that are unrelated to the motor vehicle accident.
In order to have a successful claim for wage loss due to early retirement, there must be sufficient evidence to support the claim. The most significant authority in cases involving a loss of income where an injured claimant has chosen early retirement is Riley v. Ritsco 2018 BCCA 366. The Court of Appeal in that case clarified the proper test and considerations to consider when making an award for early retirement:
- The test is not what caused the injured claimant to retire early and whether the injuries made it necessary for early retirement
- The test is whether the decision to retire early was a reasonable and necessary one
The Court of Appeal in that case further elaborated and clarified the proper test when considering compensation to an injured claimant for early retirement:
“Plaintiffs are not required to show that decisions they make are dictated by necessity. Rather, the question is always whether a plaintiff has acted reasonably in selecting and following a course of treatment and rehabilitation, and in making lifestyle accommodations that are consonant with the injuries suffered. A plaintiff must also take reasonable steps to mitigate damages. Thus, Mr. Riley did not have to prove that he retired out of necessity. He only had to show that his decision to retire was a reasonable one. “
In the recent case of Shrieves v. Smith 2020 BCSC 710, the male plaintiff was injured in a motor vehicle accident. He was 67 years-old at the time of the accident and he was 71 years-old at the time of the trial. As a result of the motor vehicle accident, he suffered mild to moderate injuries to his neck and shoulder, as well as vertigo, cognitive issues and headaches. The neurologist expert was of the opinion that the pain, functional limitations and sleep disturbance caused the cognitive issues which included forgetfulness.
The most contentious claim was for loss of income as a result of early retirement. The injured claimant argued that if the accident had not occurred, he would have continued to work for another 2.5 years until he reached 70 years-old. He testified that the principal reason for retiring early was his concern over his ability to continue to perform at his occupation due to his forgetfulness, stress and mood. The decision to retire early was made within months of the accident when these symptoms were most acute and concerning. Over time and by the time of trial, most of his injuries had resolved.
The trial judge considered the reasonableness of the injured claimant’s decision to retire early, rather than the necessity of retiring early. His evidence was that he always liked his job and that he was appreciated by his employer. He had problems at work following the accidents where he made mistakes that were unlike him because he had trouble thinking clearly and due to nervousness. He expressed these concerns to his wife and his family doctor. His wife testified regarding the decision to retire early stating how concerned she was for her husband in that initial period following the motor vehicle accident.
On the evidence, the trial judge concluded that the injured claimant’s decision to retire, taken jointly with his wife, was reasonable in the circumstances and that the decision was taken due to his injuries, primarily cognitive, that were caused by the motor vehicle accident.
Accordingly, the trial judge awarded 2.5 years of lost income due to the early retirement.
In a previous blog post, damages for early retirement were awarded to a 38 year-old where the same principles were applied.