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Loss of Earning Capacity Awarded Despite Part Time Work History

In this personal injury case the claimant was injured when a car made a left-hand turn into his path while driving northbound on Nelson Avenue in Burnaby. The claimant suffered tinnitus predominantly in his right ear, dizziness, balance issues, jaw pain, and soft tissue injuries to his chest, neck, shoulders, back, and right shin. The soft tissues injuries resolved within a few months.(Christensen v. Jand, 2018 BCSC 1294)

The claimant was an on-call temporary letter carrier at the time of the car accident. He successfully argued the accident injuries reduced his ability to earn income.  The judge accepted that he did not sustain any past loss of earning capacity beyond the initial six-month period during which his physical injuries limited him. However, this did not preclude a future loss of earning capacity.

A claim for loss of future earning capacity raises two key questions according to the Supreme Court Judge: (1) has the claimant’s earning capacity been impaired by his injuries; and, if so, (2) what compensation should be awarded for the resulting harm that will accrue over time?

The claim for loss of future earning capacity was made on the basis that his plan was to continue working at Canada Post and would one day become a permanent employee.  As a postal worker he will not be able to take advantage of on-call work.  After the car accident, he tried on-call work but felt dizzy while sorting mail. He was not able to sort large amounts of mail. He was less efficient at sorting than his co-workers.

The claimant said that his loss of earning capacity justified damages in a range of $75,882-$243,500. The high end of the range was a calculation based on what he is currently earnings, $36,111, and what he would have earned if working full-time, $51,000. The present values of these two salaries to age 70 is $843,500 and $600,000, hence the difference of $243,500.

An alternative approach proposed was the capital asset approach which would be to award him three years salary. This was the approach taken in Flores v. Burrows, 2018 BCSC 334 at para. 139.

The defendant disputed that the claimant suffered any future income loss. He was able to work eight hour shift;  his symptoms at trial were not disabling and; his tinnitus did not stop him from being able to do his work.  The defendant argued that there was no real and substantial possibility of any future income loss, and, as such, none should be awarded;

However the judge found that there was a real and substantial possibility of a loss and using the capital assest approach awarded him two years’ income at $47,789 per year. The claimant was therefore awarded $95,500 for loss of future earning capacity.

The total personal injury award was:

Pain and Suffering: $85,000
Past income loss: $8,500 (gross)
Future loss of income earning capacity: $95,500
Out of Pocket Expenses: $916.23
TOTAL: $189,916.23
Importantly, the earnings approach will be more appropriate when the loss is more easily measurable than in the facts of this case. Furthermore, while assessing an award for future loss of income is not a purely mathematical exercise, the Court must use factual mathematical anchors as a starting foundation to quantify such this future loss.
Posted By Mr. Renn A Holness, B.A. LL.B.

Tags: loss of earning capacity, Pain and Suffering, Tinnitus

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