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Vancouver ICBC Accident Loss of Earning Capacity

If you have been injured in a Vancouver ICBC accident one of the many areas you can be compensated for is “Loss of Earning Capacity.”

Our experienced Surrey, Kelowna, Fort St John, and Vancouver personal injury and ICBC car accident lawyers will walk you through the process and explain all of your options. We always offer a free initial consultation. Our job is to make sure you receive the money and justice you deserve.

Please call our Vancouver ICBC car and truck accident office at 604-602-9000 to schedule your free consultation. Or, you can reach any of our four personal injury law offices in Vancouver, Surrey, Kelowna and Fort St. John by calling us toll free at 1-877-602-9900.  
If you prefer, you can also contact us online.

As we have discussed in previous posts, if you have been injured in a pedestrian, bicycle, truck or car accident in Vancouver or anywhere else in British Columbia there are several areas for which ICBC may be required to pay you money damages. In addition to past lost wages, medical expenses, loss of housekeeping, and non-pecuniary damages for pain, suffering, and loss of enjoyment of life, you may also be entitled to claim money damages for Loss of Potential Future Earnings, also known as “Loss of Earning Capacity.” When you have been hurt in a Vancouver ICBC Truck or Car Accident you may not be able to return to work.  You also might not be able to begin or complete your studies to advance both your education and career.  The injuries you sustain might  prevent you from receiving a promotion or other advancement at work.  Even if you are able to return to work, you may only be able to do so on a part-time basis or with reduced hours.  

The Loss of Earning Capacity category for ICBC money damages is meant to pay you to compensate your future losses in these areas. One of the challenges with this category of money damages is determining its exact value.  Because this requires a “prediction” of what your future income would have been, or might have been, “but for” the accident the Court must take several factors into account. If you claim that your injuries are preventing you from going to school, you must also demonstrate that there was a reasonable likelihood that you were actually going to go to school in the first place. The same applies to “missed” promotions or other advancements at work – you must first be able to prove that the promotion or advancement was likely, and you must then prove that, because of the accident and injury(ies) the promotion or advancement is no longer possible. Sometimes, our clients were not expecting to go to school or be promoted.  However, there may still be a significant ICBC money damages claim when you are simply unable to return to work – either no return to work at all, or only with reduced hours. The recent BC Supreme Court case of Ladret v. Stephens, 2013 BCSC 1999 has once again addressed the factors involved in determining an ICBC pedestrian, bicycle, truck or car accident victim’s entitlement to a Loss of Earning Capacity claim.  The Court noted as follows:

Loss of Earning Capacity

[68]         The principles governing an award of damages for loss of earning capacity are set out in the leading case of Rosvold v. Dunlop, 2001 BCCA 1. These principles were recently summarized in Tsalamandris v. MacDonald, 2011 BCSC 1138 at para. 259 (appeal allowed in part but not on this point 2012 BCCA 239):

The principles that govern the measurement of damages for loss of earning capacity were thoroughly discussed in Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158.  The principles set out in that case can be summarized as follows:

1.         the assessment of damages is not a precise mathematical calculation but a matter of judgment;

2.         a plaintiff is entitled to be put in the position she would have been but for the accident;

3.         an award for loss of earning capacity recognizes that the ability to earn income is an asset and the plaintiff deserves compensation if this asset has been taken away or impaired;

4.         since these damages must often be based on a hypothetical, the standard of proof of a hypothetical is “real and substantial possibility” and not mere speculation;

5.         the court must consider the real and substantial possibilities, and give weight to them according to the percentage chance they would have happened or will happen;

6.         one starting approach to valuation may be to compare the likely future of the plaintiff had the accident not happened, and the likely future of the plaintiff after the accident has happened, and to consider the present value of the difference between the amounts earned under these two scenarios.  (I note that in using the word “likely”, the Court on this point was meaning what hypothetical was a real and substantial possibility);

7.         however, the overall fairness and reasonableness of the award must be considered, taking into account all of the evidence.

[69]         In Perren v. Lalari, 2010 BCCA 140, the Court of Appeal described at para. 32 what the plaintiff must satisfy and mentioned the different approaches that might be considered in assessing the loss of earning capacity:

A plaintiff must always prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang, and by Tysoe J.A. in Romanchych, that there is a real and substantial possibility of a future event leading to an income loss.  If the plaintiff discharges that burden of proof, then depending upon the facts of the case, the plaintiff may prove the quantification of that loss of earning capacity, either on an earnings approach, as in Steenblok, or a capital asset approach, as in Brown.  The former approach will be more useful when the loss is more easily measurable, as it was in Steenblok.  The latter approach will be more useful when the loss is not as easily measurable, as inPallos and Romanchych.  A plaintiff may indeed be able to prove that there is a substantial possibility of a future loss of income despite having returned to his or her usual employment.  That was the case in both Pallos and Parypa. But, as Donald J.A. said in Steward, an inability to perform an occupation that is not a realistic alternative occupation is not proof of a future loss.

[70]         Recently, in Morgan v. Galbraith, 2013 BCCA 305, the Court of Appeal described at para. 53 the usual stages in the analysis that the trial judge must follow:

As already noted, in Perren, this Court held that a trial judge must first address the question of whether the plaintiff had proven a real and substantial possibility that his earning capacity had been impaired. If the plaintiff discharges that burden of proof, then the judge must turn to the assessment of damages.  The assessment may be based on an earnings approach (rejected by the trial judge here) or the capital asset approach, as described in Brown (the approach adopted by the trial judge) …  The trial judge stated at para. 56:

Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), cited above, and cited elsewhere by our Courts many times, provides the approach to use for a person whose path is unclear. The plaintiff’s injury is treated as the loss of an asset. Finch J., as he then was, listed the following as considerations inBrown for awarding loss of future income:

1. The plaintiff has been rendered less capable overall from earning income from all types of employment;

2. The plaintiff is less marketable or attractive as an employee to potential employers;

3. The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

[71]         In accordance with the principles governing loss of earning capacity, the plaintiff says that she is entitled to an award for damages because she has proved that there is “a real and substantial possibility of a future event leading to an income loss”.  The plaintiff’s position is that this assessment of damages should result in an award of $200,000.

Since there are so many factors involved in a claim for Loss of Earning Capacity we strongly recommend that you contact one of our experienced Vancouver ICBC Personal Injury Accident Lawyers for a FREE initial consultation. You can reach us at 604-602-9000.

We also have experienced lawyers located throughout the province in our Surrey, Kelowna, and Fort St John offices. Please call us toll free at 1-877-602-9900, or simply use our convenient online form.



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