When an individual in British Columbia pursues damages for personal injury, there are a number of different grounds upon which damages may be claimed, including but not limited to general damages, loss of housekeeping capacity, and past and future loss of income. How the court assesses the amounts of damages claimed changes depending upon which damages are under evaluation. In this blog, we will explore how the British Columbia courts assess damages relative to civil claims of personal injury.

Brain Injury Suffered in Car Accident Leads to Lawsuit

A recent decision from the British Columbia Supreme Court involved the assessment of damages for injury suffered in two car accidents in which the defendant drivers admitted liability. This case provides a roadmap as to how the courts of this province approach assessing damages concerning civil claims of personal injury.

In that case, the plaintiff alleged that she had suffered injury in two separate motor vehicle accidents. Specifically, she alleged that she had suffered a mild traumatic brain injury, which caused her pain, headaches and assorted limitations, and that the impact on her life had been significant. The plaintiff sought damages of approximately $730,00 to compensate for her losses. The defendants maintained that the plaintiff’s injuries were of minimal significance and that her damages amounted to no more than $126,533. As the defendants in relation to both accidents had each admitted liability, the only matter to be determined by the court was the proper amount of damages to award to the plaintiff.

The Purpose of Civil Damage Assessments

As noted by the court at the outset of the judgment, the court’s task in assessing damages for personal injury “is to place the plaintiff in the position she would have been in if the defendants had not been negligent–no better or worse.” In other words, the damages awarded by the court are intended, as much as possible, to put the plaintiff into the position she would have occupied had she never been involved in the accident. Importantly, damage awards are not intended to constitute a “windfall” akin to winning the lottery but to maintain the plaintiff’s financial circumstances as they would have been had the accident not occurred.

The Principles Applicable to Assessing Hypothetical Events

In personal injury claims, the court is often tasked to assess damages in categories such as “future loss of earning capacity,” “past lost income,” and “future loss of housekeeping capacity,” each of which engages in analysis of hypothetical events. In accordance with precedent law, the process engaged by the court in assessing hypothetical losses is threefold: first, the court must assess what happened to the plaintiff in the past; next, the court must consider what might happen to the plaintiff in the future, in respect of which the “judge need only consider the possibility of such events occurring if there is a ‘real and substantial possibility’ (not mere speculation)”; and finally, “if the hypothetical event has a real and substantial possibility of occurring, the court must consider the relative likelihood of the possibility.”

Evidence of the possibility of some future event occurring must be sufficient to indicate that the outcome is substantially likely rather than just a guess at what may unfold in the future (i.e., speculation). For example, suppose a person claims damages for future loss of income on the basis that the injuries suffered preclude them from working in their job until retirement. In that case, that person must prove that they would otherwise have been likely to stay in their employment role until retirement and would have earned a particular sum of money had they been able to do so.

Non-Pecuniary Damages: What are they and How are they Assessed?

Non-pecuniary damages compensate injured people for “pain, suffering, disability, and loss of enjoyment of life”. They are assessed on two bases: one regarding losses suffered up until the date of trial and the other on damages likely to be suffered. Factors commonly considered by the courts in assessing non-pecuniary damages include “the plaintiff’s age; the nature of the injury; the severity and duration of pain; level of disability; emotional suffering; loss or impairment of life; impairment of family, marital and social relationships; impairment of physical and mental abilities; and loss of lifestyle.” Importantly, “stoicism should not penalize the plaintiff.”

Non-pecuniary damages, sometimes also called “general damages,” “must be fair and reasonable to each party” and “[t]he amount of the award does not depend only on the seriousness of the injury, but rather also on the loss in the context of the specific plaintiff’s circumstances.”

The Legal Principles of Future Loss of Housekeeping Capacity Awards

Loss of housekeeping capacity may be considered either a pecuniary or non-pecuniary loss. Generally speaking, where the plaintiff has hired a cleaning/housekeeping service, whether paid or unpaid, a pecuniary award in accordance with expenses incurred is appropriate. Where the plaintiff has suffered “a loss of amenities or increased pain and suffering,” it is more appropriate to award loss of future housekeeping capacity damages on a non-pecuniary basis.

The Legal Framework Applicable to Past and Future Loss of Earning Capacity

Assessment of future loss of earning capacity necessarily engages analysis of hypothetical, unknowable events. As such, a three-step process for assessing such damages has emerged, as follows: the court will first undertake to assess whether the evidence supports the contention that a future event could result in loss of capacity to earn income, i.e., chronic injury, progressive injury or expected future surgery related to existing injuries. Next, the court considers whether the evidence supports a real and substantial possibility “that the future event in question will cause a pecuniary loss.” If the answer to question 2 is “yes,” then the court will assess the value of the future loss, including the relative likelihood that the future event will occur.

Regarding step 3, the valuation of the damages, the court may adopt either a capital asset approach or an earnings approach. The earnings approach has been deemed appropriate in circumstances “where there is an identifiable loss of income at the time of trial,” which “often occurs when a plaintiff has an established work history and a clear career trajectory.” Where the plaintiff has not, at the time of trial, experienced any income loss, then the court should, generally speaking, apply the capital asset approach.

Principles Applicable to Awards of Cost of Future Care

Awards for costs associated with future care, as with assessments of future loss of earning capacity, necessarily engage consideration of hypothetical scenarios. Assessments of awards of damages in this category involve consideration of two factors: whether there is a medical justification for the amount claimed and whether such amount is reasonable. Importantly, the court distinguishes between the concepts of “medical justification” and “medical necessity” in that medical necessity is considered much more narrow than medical justification. Courts will consider evidence from medical professionals in making such an assessment, although “medical experts need not expressly approve specific items of future care… It is sufficient that the whole of the evidence supports the award for specific items”. Finally, no amount will be awarded “for expenses that the plaintiff would have incurred in any event.”

Court Awards Substantial Damages to Plaintiff

In this case, the court awarded a total of $520,217.60 in damages, comprising $162,000 in non-pecuniary damages, $42,354.88 in past loss of earning capacity, $261,000 in future loss of earning capacity, $51,211.45 in damages associated with costs of future care, and $3,6511.27 in special damages.

No amount was awarded for past loss of housekeeping capacity because the court found it appropriate to include such damages in the non-pecuniary award rather than as a standalone sum.

Contact Meridian Law Group for Assistance with Your Personal Injury Claim

If you find yourself involved in a claim for damages for personal injury, whether as a plaintiff or defendant, or the injuries suffered are minor or severe, you are in need of excellent legal representation to protect and advance your interests. Fortunately, the knowledgeable team of personal injury lawyers at Meridian Law Group are pleased to provide excellent legal services in all facets of personal injury law.

From our offices in downtown Vancouver, British Columbia, Meridian Law Group is proud to serve British Columbians in Vancouver and across the province. Contact us today online or by telephone at (604) 687-2277 to schedule a confidential consultation with a member of our personal injury team.