"Durability" Stands The Test Of Time In Future Income Loss Claim (Boucher v. Bemister, 2023 BCCA 17)

• Published date: 14 March 2023
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Retirement, Superannuation & Pensions, Health & Safety, Employment Litigation/ Tribunals, Trials & Appeals & Compensation, Personal Injury
• Law Firm: CLC (Canadian Litigation Counsel)
• Author: Jesse Stanich (Brownlee LLP)

The Appellant/Defendants appealed a damage award for a motor vehicle accident, specifically for loss of future income capacity. The Defendants alleged the Trial Judge erred by finding a future income loss based on a possibility that the ongoing pain suffered by the Plaintiff may prevent him from retiring as planned at 65.

Background

The Plaintiff was in an accident in 2017 and suffered a WAD II injury, various chronic neck pains, and psychological dysfunction. He was awarded $60,000 in non-pecuniary damages and $45,000 for loss of earning capacity at trial. He was a special education teacher who often dealt with non-verbal students, and sometimes required physical ability to calm his students down in the event they became violent.

The damages awarded at trial were largely based on an independent medical exam from Dr. Audrey Chen. She gave a somewhat optimistic prognosis for the pain, but stated his "durability" to continue the type of work was questionable, and he was unlikely to return to pre-accident functioning.

The Defendants also produced an expert who believed the Plaintiff's debilitation was caused by a perception of pain rather than actual impairment. Both experts agreed the Plaintiff had pain, but Defendant's expert could not reconcile the belief the Plaintiff had legitimate ongoing pain with the belief the injury should have fully healed within three months. For these reasons, the Plaintiff's evidence was preferred.

On Appeal

The Appellants argued the Trial Judge incorrectly applied the test inDornan v. Silva, 2021 BCCA 228 for assessing future income loss. The crux of the Defendant's argument was the following:

• the Plaintiff amassed two years of sick leave and only had three years until maximum pension was reached;
• the Plaintiff was effectively fully employed at his job following the Accident; and
• the Plaintiff could work as an English teacher for the say pay;

InDornan,the BC Court of Appeal applied a three-part test for assessing future earning capacity where there is no loss apparent at trial. The general analysis is the following:

1. whether the evidence discloses apotentialfuture event that could lead to a loss of capacity;

2. whether, on the evidence, there is a real and substantial possibility that the future event in question will cause a pecuniary loss;

3. If such a real and substantial possibility exists, assess the value of that possible future loss, which ... must include assessing the relative likelihood of the possibility occurring.

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