The court found the pain and reduced work capacity posed a substantial risk of early retirement
The BC Court of Appeal upheld an award for loss of future earning capacity in a motor vehicle accident case, affirming the trial judge's finding that chronic pain and reduced work capacity created a substantial possibility of early retirement.
The respondent, a laboratory technologist injured in a 2018 car accident, sustained chronic pain in his back, neck, and knee. While he was able to return to work shortly after the incident, his injuries led to ongoing discomfort, reduced overtime hours, and a belief that he might retire earlier than initially planned. At trial, the judge awarded the respondent $226,102, including $120,000 for loss of future earning capacity, which became the central focus of the appeal.
The appellants sought to have the award reduced or set aside, arguing that the evidence did not support the likelihood of significant loss of income. Conversely, the respondent cross-appealed, claiming the damages were too low given the impact on his ability to work until retirement at 65. The Court of Appeal dismissed both appeals, finding the trial judge's reasoning and award to be reasonable.
The trial judge relied on the precedent set in Rab v. Prescott, 2021 BCCA 345 a three-step analysis for assessing future earning capacity loss. He determined that the respondent’s injuries created a "real and substantial possibility" of early retirement due to chronic pain. This was corroborated by expert evidence and the respondent’s testimony regarding his work limitations and pain levels.
The judge used the approach in Pallos v. Insurance Company of British Columbia (1995), 100 B.C.L.R. (2d) 260, which calculates damages as a multiple of pre-accident earnings, awarding 1.5 years of salary to reflect the likely future income loss. The Court of Appeal agreed with this method, noting that while such assessments are inherently imprecise, the award was reasonable given the evidence.
The court rejected arguments that the award was either excessive or insufficient. It found no error in the trial judge's consideration of factors such as the respondent’s ongoing pain, reduced overtime, and potential for early retirement. The court also emphasized that while chronic pain alone does not justify damages, its interaction with work duties and long-term stamina was properly considered. Ultimately, the court dismissed the appeal and cross-appeal.
