In Kodelja v. Johal, 2017 BCSC 164 a grade 3 teacher injured in a car accident was awarded $266,545.88 at trial for her injuries.
Ms. K was driving southbound on Oak Street when a driver headed in the opposite direction attempted to make a left hand turn. The right side of her car hit the rear corner on the defendant’s car. Although the accident occurred at a relatively mild speed, Ms. K was left with headaches, neck pain, shoulder pain as well as numbness in her left arm and pain in the right hip and groin area. Although Ms. K improved with chiropractic and massage treatments, she was not able to return to 100% of her pre-injury condition. The defendant driver admitted liability and the only issue at trial was causation and damages, particularly the loss of income earning capacity.
Loss of Income Earning Capacity
Ms. K argued that she would not be able to carry on full time at her teaching career and sought an award of $300,000 – $400,000. In determining an award of loss of income, the court takes into account the following factors:
- The plaintiff has been rendered less capable overall from earning income from all types of employment;
- The plaintiff is less marketable or attractive as an employee to potential employers;
- The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and
- The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market. (Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.))
In order to succeed on an award for loss of income earning capacity, Ms. K had to prove that there was a real and substantial possibility that she would be working only 4 instead of 5 days. Mr. Justice Masuhara ultimately found that the plaintiff’s evidence was not strong enough to show a real possibility that she would be work only 4 days a week. However, the court did award $50,000 on the basis that Ms. K perceived herself as being less valuable to herself as a person capable of earning income and that the accident has rendered her less capable overall from earning income from all types of employment.
Future Cost of Care
Ms. K sought an award of $230,000 – $331,000 for an award of cost of future care. The test for any award of future care items is whether there is medical justification and whether the claim is objectively reasonable (Milina v. Bartsch, 49 B.C.L.R. (2d) 33). The item in question must be “reasonably necessary to preserve the mental and physical health of the plaintiff”. This evidence need not always come from a physician, but may come from any qualified health care professional. Items that provide solace and pleasure do not qualify as a future car cost. The court stresses that common sense is key in assessing reasonableness, and includes determining whether the possibility of the future cost item is a substantial possibility or mere speculation.
Ms. K’s claim was based in part on her desire to have children. Although the court found she was sincere, based on her age and relationship status, the court found that the change of her having children was particularly low. Ms. K was awarded $106,300 for physiotherapy, massage and chiropractic treatment. She also received a nominal amount for medication, ergonomic equipment, and homemaking.
Her total award at court was $265,545.88