The Court of Appeal has upheld a $200,000.00 award to a 25-year old student for loss of future earning capacity despite having no settled pattern of employment, and no causal link between her injuries and her inability to keep positions in her desired field of employment. (Layes v. Stevens,2018 BCCA 415).
An ICBC offer to settle of $474,456.00 was $100,000 higher than the court award and the claimant was therefore required to pay costs to ICBC. At trial she was asking for over $1 million for her future loss of earnings. Therefore if she was able to win this appeal it would have potentially reversed the impact of not beating the ICBC offer of settlement.
The family doctor described the claimant telling her about ICBC’s failure to accept an assessment initiated by them in an attempt to undermine her personal injury claim. Clearly, there had been a serious disagreement between the claimant and ICBC over the value of this case.
The difficulty in this case was that there were no reliable mathematical anchors on which the court could rely with regard to the negative impact of the injuries on her ability to earn income from specific employment positions. At best, the trial judge found the claimant was rendered “less capable overall from earning income from all types of employment”, particularly from positions involving lifting. A fact-intensive, case-specific inquiry was not possible in this case. (see para 31 of the decision)
At the time of the car accident the claimant was in her final year of her journalism degree. She had not yet embarked on her career. The trial judge found as a fact that the claimant could work full-time. There were, however, certain jobs no longer open to her and given this, an award for loss of future earning capacity was appropriate.
As the Court of Appeal stated in dismissing the appeal:
 With respect, there is no authority for the proposition that awards for future loss of earning capacity and awards for past wage loss must bear some numerical or directly proportional relationship to each other. In some cases they will, if the relevant facts underlying each head of damages are the same. However, due to the different tests and circumstances involved in each, it is entirely conceivable — and in fact common place — for an award of future loss of capacity to differ markedly from an award of past wage loss.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.