Unique Approach To Calculating Earning Capacity Damages - Hann v Lun, 2022 BCSC 1839

• Published date: 15 November 2022
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Retirement, Superannuation & Pensions, Employee Benefits & Compensation, Trials & Appeals & Compensation, Personal Injury
• Law Firm: CLC (Canadian Litigation Counsel)
• Author: Mr Andrew Bitz (Brownlee LLP)

The 30 year old plaintiff was injured in a motor vehicle accident. His main injury was constant back pain which limited his functional capabilities. Despite a lack of pre-accident loss of income, the court awarded $330,000 in loss of earning capacity, noting the plaintiff had a documented history of reduced abilities at his work, leisure, and housekeeping activities.

The court's approach to calculating future loss of earnings was interesting, assigning probabilities to certain income scenarios. While the court's award is disappointing to insurers and defendants, the court took notice of several contingencies which can be used to argue for a reduced loss of earning capacity award. Notably, the court assigned a 10% chance the plaintiff's injuries would improve and applied a 20% labor market contingency which accounted for possible labor market shortages, voluntary decision to leave the labor force, or deciding to pursue a different line of employment. The loss of earning capacity award was reduced for these contingencies. The court provides an easy to read explanation for how to calculate loss of future income where commissions or bonuses are part of a plaintiff's income.

Details of the Plaintiff

The plaintiff was nearly 26 years old when he was in a significant car accident. Liability was admitted at trial. The court was left to decide general damages, loss of earning capacity, and future cost of care.

The plaintiff's injuries consisted of pain to his back, neck, shoulder and jaw. The injuries to his neck, shoulder, and jaw subsided a few weeks after the accident. However, his back pain persisted to trial despite attending over 100 physiotherapy sessions and participating in over 40 sessions of an active rehabilitation program with a kinesiologist. A subsequent accident was found to have only mildly exacerbated his back pain. His back pain was constant and a medical expert found the plaintiff would continue to experience pain into the future. He was awarded $90,000 in general damages.

The court found the plaintiff was a stoic individual who was trying to best manage his pain. The court did make note the plaintiff's testimony was vague at times and his testimony was somewhat inconsistent with medical records stating he only had one day of soreness over a two week period. However, the court observed the plaintiff was generally credible in his testimony and noted a plaintiff's stoicism is a factor which should, generally, penalize a plaintiff.³

Prior to the...