$110,000 Award for Loss of Earning Capacity for Realtor with Chronic Pain from Car Accident: Jones v. Arjun, 2013 BCSC 1313

By Ivar Lee, Vancouver personal injury lawyer and Partner at Paine Edmonds LLP

Congratulations to associate lawyers Kate Taylor and Jaime Sarophim of Paine Edmonds LLP for a great result at trial.  Full reasons for judgment found here.

In Jones v. Thomas, 2013 BCSC 1313, a very contentious issue at trial was whether Mr. Jones, a realtor with chronic pain resulting from a car accident, was entitled to compensation for loss of earning capacity. Lawyers retained by ICBC on behalf of the at fault driver denied that Mr. Jones was entitled to any compensation for future loss of income.  In disagreeing with ICBC's position and awarding $110,000 for loss of earning capacity, Madam Justice Ballance gave the following reasons:

[218]     To my mind, it is not appropriate to engage the “earnings approach” to assess Mr. Jones’s damages. It is instead preferable to quantify his loss by taking into account the factors that inform the capital asset approach laid out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), mindful of the fact that his diminished capacity is not permanent and will continue to improve over time and eventually be resolved.  That assessment involves considering factors such as whether he: (i) has been rendered less capable overall of earning income from all types of employment; (ii) is less marketable or attractive as a potential employee; (iii) has lost the ability to take advantage of all job opportunities that might otherwise have been open; and (iv) is less valuable to himself as a person capable of earning income in a competitive labour market.  The evidence establishes that at least three, and probably all four, of these factors have application to Mr. Jones.

[219]     As mentioned, the evidence does not demonstrate that Mr. Jones’s pre-existing low back difficulties or depression impaired his capacity to fulfill his duties as a realtor, or that there is a measurable risk that either or both of those conditions would have caused him a loss in the future, absent the accidents.

[220]     Bearing in mind the applicable legal principles, including the Brown criteria, in light of the evidence, I conclude that in all the circumstances the sum of $110,000 is the present value of a fair and reasonable measure of Mr. Jones’s loss of future earning capacity.

If you have any questions about your ICBC car accident injury claim such as whether you may be entitled to compensation for loss of earning capacity, please do not hesitate to contact any of our Vancouver personal injury lawyers at Paine Edmonds LLP for a free consultation about your ICBC car accident injury claim.  Visit us at pelawyers.com to learn more or call us at 604.683.1211 to arrange your free consultation.