Personal injury can completely change a person’s life, particularly if the injury is serious. If you were injured due to someone else’s negligent actions, you may be able to claim compensation. Compensation can cover many different things, including medical expenses, lost income, loss of enjoyment of life, future loss of earnings and the cost of future care. However, if another person’s negligence did not cause the loss or injury, compensation will likely not be available.
This article examines the concept of compensation claims for negligent actions with a particular reference to claims for future loss of earnings. It also reviews a recent decision of the Court of Appeal for British Columbia in which a person injured in an accident claimed damages for lost future earnings after she chose to retire. The defendant argued that an unrelated cancer diagnosis, not the accident injuries, was the cause of the retirement.
Under the heads of damages in a compensation claim, courts may award an amount for loss of future earning capacity if the accident has reduced the plaintiff’s earning ability. In order to make a finding regarding such an award, the court must compare the anticipated future of the plaintiff if the accident had not happened and their likely future after the accident has happened. Given that these scenarios are not certain, the standard of proof has been described as a “real and substantial possibility”.
Courts take a range of approaches in attempting to quantify the loss. One approach is assessing the plaintiff’s annual income loss multiplied by the remaining years of work and then discounted to reflect current value, considering contingencies such as average mortality.
It is important to remember that the accident must have caused or contributed to the reduction in earning capacity in order for a claim to be successful.
In Baylis v Laybolt, the plaintiff was injured in a motor vehicle accident. She was standing on the sidewalk when she was struck by the load of a passing truck which fell on her. The plaintiff was 62 years old at the time of the accident and suffered substantial injuries, including a mild traumatic brain injury as well as neck, back and shoulder pain.
A couple of weeks after the accident, the plaintiff returned to her normal four-day work week as a dental hygienist. Four and a half months later, she reduced her schedule to three days per week as a result of her injuries.
Approximately 18 months later, the plaintiff stopped working. She had been diagnosed with cancer and needed surgery and follow-up treatment. She expected to return to work but suffered post-operative complications and decided to retire.
The truck driver and owner admitted liability for the accident but disagreed with the plaintiff’s claim that the accident caused a serious head injury and with the amount of damages claimed, including for out-of-pocket medical expenses, past income loss, non-pecuniary damages for pain and suffering, future loss of earning and cost of future care.
The trial judge awarded the plaintiff almost $370,000 in compensation, including $175,000 for future loss of earnings. The defendants challenged this amount in the Court of Appeal.
At trial, the defendants argued that the plaintiff had worked her regular hours prior to the cancer diagnosis and that treating cancer ended her career, not the accident. As such, there was no causal link between the accident and her failure to return to work.
The plaintiff explained that the injuries from the truck accident contributed to her retirement decision. The pain from the accident meant that she could not return to work. She said that she planned to return after the cancer treatment and that she would have worked longer hours to make up for the income she lost while undergoing cancer treatment. The trial judge explained:
“A claim for past loss of earnings is for the loss of earning capacity or the loss of the value of the work that the plaintiff would have performed but was unable to perform because of the injury.”
The judge decided that the decision to retire was reasonable and further, that the accident injuries had caused or contributed to the decision. The judge calculated the award for loss of future earning capacity based on working the amount the plaintiff worked prior to the accident until age 70, less $100,000 for the contingency that she would have worked less due to the cancer diagnosis and treatment.
The Court of Appeal held that the trial judge was entitled to decide, as a factual matter, that the plaintiff retired not because of the cancer, but due to the injuries suffered in the accident. The evidence demonstrated that the plaintiff’s work aggravated her injuries and that the side effects of her cancer treatment had resolved. The judge found the necessary causal connection between the plaintiff’s accident injuries and her retirement decision.
Regarding contingencies, the Court decided that a retirement age of 70 was acceptable for the calculation, as was the adjustment for the cancer diagnosis. Given the plaintiff loved her job, which was her primary income source, there was evidence supporting the appropriateness of this retirement age for calculation purposes.
As a result, the Court of Appeal upheld the compensation award for future loss of earnings.
Contact the Personal Injury Lawyers at Meridian Law Group in Vancouver for Comprehensive Representation
The experienced personal injury lawyers at Meridian Law Group in Vancouver guide their clients through the evidentiary complexities necessary to position their claims for success. When an injury strikes because of someone else’s acts or omissions, we understand how important compensation can be in helping you return to your pre-accident activities.
We represent clients throughout British Columbia and help them move forward after an accident. To arrange a consultation with one of our personal injury lawyers, please call us at 604-687-2277 or reach out to us online.