Woman experiences whiplash injury and headaches after her car was rear-ended
The Court of Appeal for British Columbia has increased the awards for future income loss to $235,000 from $220,000 and loss of homemaking capacity to $22,500 from $6,000 for a woman injured in a vehicular accident.
In 2017, the plaintiff in this case was at an intersection and was about to turn her vehicle left. The defendant’s vehicle then rear-ended her vehicle at low speed. The vehicles sustained minimal damage. Both drivers required no immediate medical treatment.
However, the plaintiff later developed injuries including whiplash injury, thoracic outlet syndrome, cervicogenic headaches, and chronic pain. This pain affected her neck and shoulders. At the time of trial, the plaintiff was working full-time as an occupational health and safety coordinator. She had to reduce her work hours due to her condition.
The defendant admitted liability for the accident. The trial judge accepted that the plaintiff’s injuries caused by the accident were likely to persist, with symptoms fluctuating over time. The judge also acknowledged that these injuries would likely limit her future work capacity despite her current full-time employment.
The trial judge awarded damages amounting to $385,542. This total included $220,000 for future income loss; $110,000 for non-pecuniary damages; $23,220 for the cost of future care; $20,000 for past income loss; $6,322 for special damages; and $6,000 for loss of homemaking capacity.
On appeal, the plaintiff challenged the trial judge’s future income loss and loss of homemaking capacity awards.
In Fatla v. McCarthy, 2024 BCCA 311, the British Columbia Court of Appeal increased the awards for future income loss and loss of homemaking capacity. The revised total award was $417,042. The appeal court also granted the plaintiff costs as she achieved substantial success on appeal.
First, the appeal court rejected the plaintiff’s argument that the trial judge erred in failing to use average male earnings instead of her actual income when calculating future income loss. The appeal court supported the judge’s decision to use her actual earnings instead of adopting a gender earning convergence approach, where damages would be based on average male earnings.
Damages for loss of earning capacity should be individualized, the appeal court said. In this case, the plaintiff’s actual income provided a more accurate basis for assessment than statistical averages, the appeal court explained.
Second, the appeal court found merit in the plaintiff’s argument that the trial judge erred by discounting the assessed future income loss from $235,060 to $220,000.
The appeal court noted that the trial judge calculated a future income loss of $235,060 based on a 20-percent reduction in work capacity but then arbitrarily reduced the award to $220,000 without explanation.
The appeal court, finding this reduction unwarranted, increased the award for future loss of earning capacity to $235,000 upon substituting the original figure into the calculation.`
Third, the appeal court rejected the plaintiff’s argument that the trial judge erred in concluding that she could work a four-day week when the evidence suggested that her injuries would more likely limit her to three days per week. The appeal court upheld the judge's determination that the plaintiff would be able to sustain a four-day work week.
Lastly, the appeal court agreed that the trial judge made an insufficient award for loss of homemaking capacity. The appeal court increased the award for loss of homemaking capacity to $22,500.
The trial judge failed to explain clearly how he reached the figure of $6,000, particularly when the relevant items included in the cost of future care report amounted to an approximate total value of $22,500, the appeal court held.
