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In Parker v. Martin, 2017 BCSC 446, a chiropractor was injured while backing out of a parking stall. While he stopped to let a pedestrian walk by, another pickup truck that was also backing up bumped into his vehicle. Although it was a low speed accident, the plaintiff was injured as a result.

The plaintiff was diagnosed by his family physician as having grade1 low back symptoms and mechanical strain. After some CT and MRI scans, he was found to have sustained soft tissue injuries to his neck and low back, facet joint injuries to his neck, re-aggravation of lumbar disc disease, and cervicogenic or post-traumatic headache. To complicate matters, shortly after the accident, the plaintiff suffered a heart attack. Mr. Justice Ball was called on to determine the extent of the plaintiff’s injuries from the accident and assessment of how those injuries affected his ability to practice.

As with many low impact accidents, many of his symptoms were subjective and  the Courts are cautious when awarding damages when there is little or no objective evidence of continuing injury and where complaints of pain continue for longer periods than normal (Price v. Kostryba, 70 B.C.L.R. 397 and Butler v. Baylock, February 4, 1983 Vancouver Registry No. CA81115 unreported).

In assessing the plaintiff’s damages, Mr. Justice Ball reiterated the principle from Athey v. Leonati, [1996] 3 S.C.R. 458 that the person who is at fault for the accident is only required to put the plaintiff in the position they would have been in had the accident not occurred.  The at-fault defendant is not responsible for the effects of the heart attack.

For non-pecuniary damages Mr. Justice Ball awarded $45,000 for his neck and shoulder pain, and headaches.

Since the plaintiff had not missed any work as a result of his accident symptoms, he did not make an argument for a past wage loss. The defendants argued that since there had been no wage loss since the accident, the court should consider that fact when considering whether the plaintiff proved that he had lost the ability to earn income in the future.

In order to succeed on a claim for a loss of future earning capacity, the law requires that the plaintiff must establish a “real and substantial possibility that his or her earning capacity has been impaired” (Morgan v. Galbraith, 2013 BCCA 305). In assessing whether there is a real and substantial possibility that the plaintiff’s will earn less money in the future, the courts have traditionally taken two approaches: the lost earnings and the capital asset approach. In the lost earnings approach, the court attempts to directly measure the difference in what the plaintiff would have earned against what they will likely earn. This approach is suited to situations where the plaintiff’s income is easily measurable.

Where someone’s earnings are not easily measured, eg such as student who has not yet started his career, the court employees the “capital asset approach”. This approach treats someone’s ability to earn income as an asset which has been reduced by an injury. In this approach, the court attempts to quantify the value of that loss and will consider other evidence: a person’s grade, personality, general employment trends and salary data.

Mr. Justice Ball declined to make an award of future loss of income on the basis that he had not proven on a balance of probabilities that there would be a loss of income due to the accident. He did award $10,700 for the cost of future care.