The courts clarify their position on future wage losses in personal injury cases.

As discussed in other blog postings, quantifying future wage losses can be extremely difficult. Doing so involves an attempt to predict the future and calculate an award based on a number of potential contingencies.

Once it has been established that there is a “real and substantial possibility” of future wage losses, the courts will generally use one of two approaches to estimate future losses:

  1. The Earnings Approach; or
  2. The Capital Asset Approach.

In this recent Supreme Court of British Columbia case, the courts clarified which of these above approaches is most appropriate:

The Earnings Approach is to be used in situations where some history of earnings exists and where the courts can reasonably estimate future loses. This approach involves a mathematical calculation to estimate earnings using estimated annual income adjusted for likely contingencies.

The Capital Asset Approach is to be used when there is no clear earnings history. This would include situation where someone is in the early stages of self employment or has yet to start a career. This approach involves consideration of the following factors:

  1.  has the plaintiff been rendered less capable overall of earning income from all types of employment;
  2. is the plaintiff less marketable or attractive as a potential employee;
  3. has the plaintiff lost the ability to take advantage of all job opportunities that might otherwise have been open; and
  4. is the plaintiff less valuable to herself as a person capable of earning income in a competitive labour market?

In the above noted case, a relatively young woman had somewhat recently started a human resources company. The plaintiff was claiming that she was likely to increase the revenue of her business over time and enter more lucrative areas of business. Despite the inherent uncertainties in this stance, the courts accepted the plaintiff’s argument about her future earnings losses and applied the Earnings Approach. The plaintiff was ultimately awarded a Loss of Future Capacity to reflect  a partial disability until age 65.

The above case involved a typical whiplash case that escalated into chronic pain with associated psychological injury, including depression. This case illustrates the challenges of assessing a complex case and why proper legal advice is necessary at every stage of a personal injury case.

Future wage losses and retirement at 65.

Not too long ago, 65 was accepted as the standard age of retirement. However, as overall health levels improve and financial obligations increase, many people work well beyond 65. In a recent Supreme Court of British Columbia case, the courts acknowledged this:

This case involved a 63 year old plaintiff who, at the time of his car accident, had been working at Prospera Credit Union as the Manager of Investigation and Loss Prevention. The plaintiff’s tax returns revealed that he earned approximately $90,000/year. The plaintiff was able to continue working up to the time of his trial, and he was not given an award for Past Wage Losses. However, the plaintiff was given an award for Loss of Future Earning Capacity, which is an award meant to compensate plaintiffs for income that might be lost in the future.

In awarding the plaintiff future losses, the judge put emphasis on how the plaintiff’s household debt and obligations to pay for his daughter’s education were likely to force him to work beyond the age of 70. The judge also decided that the plaintiff was likely “to retire at an earlier age than he otherwise would have retired” and that his prospects for alternate employment were “poor”.

This case illustrates how the courts attitudes towards retirement and current financial circumstances have changed. Also, many people struggle through work despite ongoing injuries. Doing so is clearly not a bar to recovery for future wage losses.


Another snag for Uber in Vancouver: City council declines to allow ride sharing service in Vancouver.

Last week, Vancouver’s city council voted not to allow Uber to operate in Vancouver. That may not be the end of the story, as they also voted on a recommendation to urge the Ministry of Transportation to become more active in dealing with ride-sharing technology:

Council unanimously voted for staff’s recommendation to urge the Ministry of Transportation to get more active in policy-making around ride-sharing technology. Council declined to permit Uber within the city’s limited licensing regime. From the taxi-industry point of view the city has no legal authority to host Uber anyway, after Transportation Minister Todd Stone’s stern warning a year ago.

This comes on the heals of several high profile incidents involving Uber in other cities in Canada. A recent anti-Uber protest by taxi drivers in Toronto escalated and led to a taxi driver being dragged down the street as a Uber driver attempted to escape this taxi driver, as the driver attacked his vehicle:

Protests in Toronto continue, as cab drivers surround city hall and obstruct traffic in the downtown core. The City of Toronto, however, seems firm in its stance that it will not be banning Uber:

Meanwhile in Alberta, both Edmonton and Calgary seem on the verge of creating licensing schemes, which will allow Uber drivers to operate legally within those cities. Uber drivers continue to operate illegally in both Edmonton and Calgary while their respective city councils scramble to pass legislation to deal with the situation. Edmonton’s city council looks primed to introduce a licensing fee of $920/year, which Uber claims is likely to drive them out of business:

Meanwhile in Montreal, Uber remains illegal, but operates anyways. The city has enforced anti-Uber laws, but sparingly. Despite many vehicle seizures, the ride-sharing App remains totally operational:

Despite the above noted issues, it appears as though Toronto, Edmonton, and Calgary will all eventually allow Uber to operate legally. This leaves “progressive” Vancouver as a city that is falling behind. This seems at odds with Vancouver’s commitment to remove cars from high congestion areas and provide alternate transportation to its citizens.

Weight loss and personal injury claims: A failure to lose weight is not necessarily a failure to mitigate.

As discussed in previous articles, failing to pursue proper medical treatment can not only affect your health but may have a severely negative effect on your personal injury claim. Lawyers hired by ICBC commonly argue that an injured party has failed to take necessary steps to mitigate their losses and, as a result, their award should be significantly reduced. Indeed, injured parties do have a duty to mitigate their losses, which typically means taking reasonable steps to reduce their losses. The courts have recently elucidated the test for a failure to mitigate, which has 3 components:

  1.       that the injured party has failed to take the recommended treatment;
  2.       that by following the recommended treatment they could have overcome the problems and avoided the loss; and
  3.       that the refusal to take that treatment was unreasonable.

In this recent Supreme Court of British Columbia case, the lawyer for the defendant argued that the plaintiff had failed to mitigate their losses by failing to lose weight, as recommended by medical experts:

The judge ruled that the failure to lose weight alone did not amount to a failure to mitigate and the plaintiff had indeed taken appropriate steps to mitigate their losses. Despite not successfully losing weight, the judge found that the plaintiff had been a “very compliant patient who was willing to try any form of suggested treatment” and the plaintiff had indeed taken appropriate steps to mitigate their losses by pursuing other forms of treatment. The judge also ruled that the defence had not established a definite link between weight loss and improvement in function or reduction in pain. Although some medical experts found that it was “possible” that weight loss could reduce the plaintiff’s pain, they did not say it was”probable“. As a result, the defence lawyer’s argument failed.

Also, of importance here is that it was confirmed that the defence has the burden of proving that an injured party has failed to mitigate their losses. In other words, if ICBC wants to rely on an injured party failing to mitigate their losses, it is up to ICBC to prove it. Despite this, an injured party should never neglect their own treatment. I always recommend that every client of mine discusses an effective treatment plan with their doctor. Typically this will consist of treatment with registered and experienced treatment providers, such as: physiotherapists, registered massage therapists, chiropractors, acupuncturists, and kinesiologists.