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$250,000 Loss of Earning Capacity Award in Rear End Accident Upheld

Loss of Earnings money awarded
The Court Appeal has made it clear in this personal injury case that an award for loss of future earning capacity reflects the exercise of judgment framed by clearly articulated factual findings. To require the trial judge to say more than he did in this case would be to impose an impossible burden on trial judges (Fadai v. Cully,2015 BCCA 505).

This case dealt with the consequences of a rear-end motor vehicle collision that occurred in Burnaby, BC. What was in dispute were the nature and extent of the injuries that he suffered in the accident, and the actual effect that those injuries had on his ability to work and enjoy life.  The trial judge found that he suffered soft tissue injuries to his head, neck, shoulder and left wrist as a result of the accident, including severe headaches, and that these injuries resolved by about a year after the accident.

The judge also found that he suffered a mild traumatic brain injury in the accident which resolved by two years after the accident. The only concern the trial judge has was that the claimant had the “presence of mind” to phone his brother and cousin and to be concerned about his ICBC insurance claim after the accident. This did not really square with the description of the claimant as having a “distorted” mental state.

The defendants appealed the $250,000 award for future loss of income earning capacity. The claimant obtained a total injury award of $373,452.77, broken down as follows: $100,000 for pain and suffering; $19,950 for past wage loss; $250,000 for future loss of income earning capacity; $2,625 for cost of future care; and $877.77 for special damages.

To expect a trial judge to explain an award further would, “also betray the fundamental principle that the task of trial court judges is to assess damages on the basis of their factual findings, not to calculate them according to a mathematical formula.” The Appeal was dismissed and the court upheld the award of $250,000 for loss of earning capacity.

Posted by ICBC Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.Working for the injured, not ICBC.

Tags: Brain Injury, Car Accident Claim, icbc case examples, Legal Causation, loss of earning capacity, Pain and Suffering, rear end car accident, Soft tissue injury

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