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Surrey Loss of Future Earnings

Our Surrey personal injury department handles dozens of serious ICBC car accident cases each year. One of the largest parts of many Surrey Personal Injury cases is: what is the proper amount of the Surrey Loss of future Earnings an injury victim has suffered? When you are hurt you need both a top doctor and a top Surrey Loss of Future Earnings personal injury lawyer. Call us at 604-576-5400 to immediately speak to our personal injury lawyers for free.

Surrey loss of future earnings cases involve the court assessing the loss of future earning capacity of the car accident victim using positive and negative contingencies to best estimate the loss. Calculation of a Surrey loss of future earnings damage amount is not an exact science BC courts make their best estimate of a Surrey loss of future earnings damage award. The court will look at what the victim likely would have earned versus what reduced amount they will now earn as a result of their injuries.

In the leading case of Westbroek v. Brizuela, 2014 BCCA 48 our BC Court of Appeal decided that ICBC’s appeal of a high damage award for a Surrey Loss of Future Earnings should be dismissed.

Summary:
The respondent, Stephan Westbroek, was injured in a motor vehicle accident. At trial, the defendants, (appellants in this court) were found liable in negligence for the accident. The trial judge awarded Mr. Westbroek damages totaling $838,624.66. The appellants appeal from the assessment of damages for loss of future earning capacity and future cost of care. They argue that the assessment for loss of future earning capacity is inordinately high as is the award for massage therapy and homemaking.
Held: Appeal allowed but only to the extent of reducing the homemaking award by two-thirds; all other grounds dismissed.
In respect of the award of $624,000 for loss of future earning capacity, the evidence of Mr. Westbroek’s inability to work in his chosen occupation, as a self-employed automotive technician and the impact his limitations have had on his business, more than supports the judge’s assessment of damages. In respect of the award of $83,973 for future cost of care, the evidence supports the judge’s award for the cost of bi-weekly massage therapy, but not for the award for homemaking. The latter award was reduced by two-thirds

[57] I begin this discussion by noting what the judge said at para. 49 of his reasons for judgment. In this passage, which follows the judge’s conclusion that Mr. Westbroek’s loss of earning capacity should be assessed at $30,000 per annum, the judge considered the impact of positive and negative contingencies:
Mr. Westbroek is 38 years of age. He gave evidence of wanting to continue to work past age 65, but there are also contingencies that might have restricted this span through, say, illness or another cause of disability. These negative contingencies might have been dealt with in a case such as this by a deduction of approximately 10 percent, but, in this case, and as perhaps is seen generally with more workers working past the age of 65, there is also the prospect of a loss of future earning capacity beyond this age. I have no specific evidence relating to these two general contingencies. Accordingly, this becomes crystal ball assisted assessment; as described by Dickson J. in Andrews v. Grand and Toy Alberta Ltd., [1978] 2 S.C.R. 229.
[58] The negative contingencies were factors such as illness or another cause of disability. Positive contingencies were factors such as the prospect of Mr. Westbroek working beyond age 65. In the result, the judge decided that those positive and negative contingencies roughly balanced each other.
[59] In reaching the conclusion that a further $40,000 should be added to the assessment the judge said at para. 53:
But the question of whether the new business model he has had to adopt will ultimately succeed or fail is a consideration that must be realistically assessed in determining loss of earning capacity.
The question is whether the judge erred in seemingly adding another layer of damages to this award.
[60] The judge relied on this Court’s reasons in Rosvold v. Dunlop, 2001 BCCA 1. Mr. Rosvold was a roofer. At his trial there was no dispute that he could not return to his previous employment as a roofer earning about $37,000 per annum. After the accident he tried unsuccessfully to retrain in a few positions. His unproven business plan by the time of trial was to operate a home-based business, building pet toys and garden ornaments. He projected that his annual earnings from this endeavour would be $25,000. The judge awarded Mr. Rosvold the capitalized value of the differential between roofing and the new venture. At para. 7, Huddart J.A., writing for the Court, criticized the judge’s approach as “excessively mathematical”: at para. 7. At para. 8, she wrote:
What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset. In some cases, projections from past earnings may be a useful factor to consider in valuing the loss but past earnings are not the only factor to consider.
[61] And later, at para. 11, she explained how trial judges might incorporate a pecuniary type of assessment into the overall analysis:
As a starting point, a trial judge may determine the present value of the difference between the amounts earned under those two scenarios. But if this is done, it is not to be the end of the inquiry: Ryder (Guardian ad litem of) v. Jubbal, [1995] B.C.J. No. 644 (C.A.); Parypa v. Wickware, supra. The overall fairness and reasonableness of the award must be considered taking into account all the evidence.
[62] Applying these principles, including the oft-cited dicta from Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), to the assessment of Mr. Rosvold’s loss of earning capacity, she held that at page 16:
In my view, the trial judge’s failure to factor into his analysis the possibilities that Mr. Rosvold’s proposed business might fail, that it might produce less income than he anticipated, and that he might not find any alternate source of income led to an inordinately low award.

 



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