Can you make a personal injury claim for negative effects on your social life?

The short answer is yes. Effects on social life are taken into account during the assessment of non-pecuniary damages, which is more commonly referred to as pain and suffering.

In fact, this is a fairly well established point of law. A strong precedent for this assertion can be found in McLeod v. Whittemore, 2018 BCSC 1082. This case dealt with a 28 year old dental assistant who suffered a variety of soft tissue injuries in a car accident, which had resulted in thoracic outlet syndrome and myofascial pain syndrome. The plaintiff in this case had been forced to leave her previous career as a dental assistant, and various aspects of her personal life had been affected, including: caring for her young daughter, her relationship with her husband, leisure activities, and her social life. In their decision the judge stated:

" I agree with the plaintiff’s submission that she has gone from a healthy, robust, active member of society with a bright future in the workforce to a person whose main job is managing her symptoms; her pain is near constant and only varies by degrees and areas of involvement. She faces real challenges caring for a newborn baby. Her recreational life has become all but non‑existent. Her social life has been affected. The relationship with her husband has been affected. Some of the plaintiff’s reduced activities would have come about in any event due to her marriage and starting a family."

https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc1082/2018bcsc1082.html

The judge awarded the plaintiff $135,000.00 for non-pecuniary damages. This judgment shows how judges take a holistic approach in their assessment of pain and suffering awards, which is far from an exact science. A judge is tasked with deciding what the overall impact of an accident was on a person's life, and social lives are an important part of people's lives. 

Are Medical Experts Becoming Less Influential in Personal Injury Cases?

Personal injury lawyers commonly hire doctors and other medical experts to provide expert evidence. Medical experts are tasked with providing their opinion, on subjects including: the cause of a plaintiff's injuries, the future outlook of a plaintiff's injuries, and how a plaintiff's ability to work will or has been affected by injuries.

When making a decision, a judge will review the totality of the evidence before them, including this expert evidence. Typically judges will give medical experts a fair degree of deference, as medical experts have actual medical expertise and experience. However, an expert's role is not to usurp the judge's role, determining the final issues between the parties. In other words, experts typically provide only a portion of the evidence that judges consider in making their final decisions.

In a recent Supreme Court of British Columbia case, a judge discounted an experts opinion when determining a plaintiff's loss of future wages.

LOSS OF FUTURE EARNING CAPACITY

[54]         Mr. Urwin testified that as a result of the Motor Vehicle Accident, he has reduced stamina, and he worries about his future. As he put it, the weight of the pails never changes. He said he is worried that if the company he works for is sold, there may be a change of management that would affect him.

[55]         Dr. Chow, in his May 28, 2017 report, offered his opinion that Mr. Urwin’s job as a warehouse receiver exceeds his functional limits.

[56]         In his reports, Mark Jaschke opined that Mr. Urwin did not meet the full physical demands of his pre-accident job as a Warehouse Receiver or his current job as a Receiver Foreman.

[57]         Nevertheless, following the completion of his graduated return to work, Mr. Urwin did not miss any further time from work as a result of the Motor Vehicle Accident. He received promotions and now earns a higher hourly wage than before. He continued to work significant amounts of overtime and double overtime. He resumed heavy lifting work. In my view, the evidence does not establish a real and substantial possibility of a future event leading to economic loss.

[58]         I would not make any award for loss of future earning capacity.

The judge, in making their decision, denied the plaintiff an award for future earning capacity, on the grounds that the plaintiff not only continued to work but had been promoted since their injury. The judge did not appear to give very much weight to the medical experts' opinions that the plaintiff was not medically fit for their job.

An award for loss of capacity without any actual time off work.

Loss of capacity refers to the loss of a person's ability to earn income in the future. As previously stated,  the courts in British Columbia typically use one of two approaches to calculate this: the earnings approach and the loss of capital asset approach. The earnings approach involves a more mathematical approach and is more appropriate in cases where the loss of earnings are easily calculated. For example, when a plaintiff's is a salaried employee and their time off work is obvious, the courts will be more likely to use this approach.

Conversely, the loss of capital asset approach is used in situations where there is a loss, but the loss is harder to calculate. For example, when a self-employed individual has a partial disability, but it is not possible to estimate their losses with any precision. 

A recent Supreme Court of British Columbia case dealt with this issue in the context of a produce warehouse worker who suffered a fracture to his right ankle. The plaintiff was able to continue working but at a reduced ability. He was slower and could not do as much physical labour as before. The plaintiff was very fortunate, in that he had an employer who valued his work and provided accommodations for him, including breaks. Although the employer hoped to retain the plaintiff as a worker for as long as possible, he was no longer in line for promotions or certain bonuses. The courts also found that this plaintiff was at risk early retirement and would have a much harder time finding a new position, in the event that he did lose his job.

https://www.courts.gov.bc.ca/jdb-txt/sc/19/08/2019BCSC0809cor1.htm

The judge, in assessing loss of capacity, stated:

[40]         However, the plaintiff was an above-average and valued employee and a solid contributor to the company’s success. He must now rely on the continuing forbearance and goodwill of his employer and colleagues. To this extent, his economic future is a good deal more precarious than before. He has been rendered far less capable of earning income in his present workplace. The defendant’s negligence has left him with permanent physical limitations that prevent him from performing at his former level and will worsen over time. Even if his employer continues to stand by him, his prospects for advancement within the company are negligible. If Fresh Direct closes or downsizes, I fear the plaintiff would face insuperable difficulties finding equivalent work elsewhere.

[41]         In short, there is no doubt that the accident has caused a material diminution in the plaintiff’s earning capacity as a capital asset for which he is entitled to compensation, notwithstanding that he still works at his pre-accident job and enjoys the support of his company. I am persuaded that with the accident-related decline in the plaintiff’s productivity, he will qualify for only baseline annual pay rises and bonuses, whereas he was previously located in the mid-range of the company’s system of entitlement. I also think it inevitable that he will have to retire from employment earlier than planned due to advancing physical incapacity, perhaps by as much as three years. Bearing in mind all of these factors, as well as the usual positive and negative contingencies, I hereby assess the plaintiff’s award under this heading at $240,000.

A loss of working ability does not always translate into a large award for future damages.

It seems intuitive that a permanent injury and disability would lead to a decently sized award for future wage losses. However, this is not always the case. A plaintiff also needs to prove that there is a "real and substantial possibility" that their  disability will actually result in a loss.

In a recent Supreme Court of British Columbia case, a plaintiff suffered permanent injuries, after two car accidents, that left them with an inability to perform heavy lifting. The Plaintiff, at the time of trial was working as a Cafeteria Teachers Aide, a job which did not involve heavy lifting. The judge found that the plaintiff's current work was unlikely to be affected by her inability to do heavy lifting and denied the bulk of her claim for future wage losses.

https://www.courts.gov.bc.ca/jdb-txt/sc/19/07/2019BCSC0703.htm

In doing so the judge cited case law stating that a plaintiff can claim a "future or hypothetical" loss but only  "as long as it is a real and substantial possibility and not mere speculation", and a plaintiff cannot claim a loss for "an occupation that is not a realistic alternative occupation".

It did not help the plaintiff's case that the judge's findings on credibility were less than enthusiastic:

[189]      The preceding are examples of when the plaintiff’s testimony was evasive, inconsistent and non-forthright. Therefore, I have been cautious in accepting the plaintiff’s subjective evidence as to the nature, duration and severity of her injuries. Where her subjective assessment of her injuries conflicts with that of the expert opinions, I prefer the expert testimony.

How does having a criminal record affect your personal injury claim?

Having a criminal record will not bar you from making a personal injury claim. However, a criminal record can affect your claim in multiple ways. Firstly, a judge must take into account the effect of your criminal record on your future job prospects when determining awards for future wage losses. A recent Supreme Court of British Columbia case involving a plaintiff with a long history of criminal activity, including drug and gun sales, dealt with exactly this issues. When deciding the plaintiff's future wage losses, the judge stated:

206]     Regrettably, past behaviours are predictors of future behaviours and I must take into account that Mr. Friesen’s future income may also be affected by future criminal behaviour and resulting imprisonment. He has a criminal history dating from 1995 with multiple terms of imprisonment and a proclivity to become involved in some level of criminal behaviour.

[207]     The plaintiff must establish a real and substantial possibility that his future income will be adversely affected by the injuries he sustained in the accidents. These losses must be based on evidence that there is a “real and substantial possibility” of a loss to the plaintiff: see Riley v. Lynn, 2003 BCCA 49 at para. 101.

[208]     In Morgan v. Galbraith, 2013 BCCA 305, the Court of Appeal provided further guidance when assessing future losses using the capital asset approach:

[56] If the assessment is still to be based on the capital asset approach the judge must consider the four questions in Brown in the context of the facts of this case and make findings of fact as to the nature and extent of the plaintiff’s loss of capacity and how that loss may impact the plaintiff’s ability to earn income.  Adopting the capital asset approach does not mean that the assessment is entirely at large without the necessity to explain the factual basis of the award: Morris v. Rose Estate (1996), 1996 CanLII 2906 (BC CA), 23 B.C.L.R. (3d) 256 at para. 24, 75 B.C.A.C. 263; Mulholland (Guardian ad litem of) v. Riley Estate (1995), 1995 CanLII 1971 (BC CA), 12 B.C.L.R. (3d) 248 at para. 43, 63 B.C.A.C. 145.

[209]     It is unclear what level of employment is available to the plaintiff but I accept that Mr. Delaney and Mr. Stelkia are prepared to offer him work despite his criminal past. By contrast, Mr. Rayner testified that although he hires prospective employees with criminal records, some jobs cannot be worked on by people with criminal records. Generally, he does not hire persons with multiple criminal offences. Criminal record, not injuries, diminish Mr. Friesen’s prospects.

[210]     Taking into account various negative features of the plaintiff’s active pre-accident physical history, criminal history, the residual effects of his neck, low back, neck and shoulder injuries, I conclude that there is a very modest but real and substantial possibility that, upon release from prison, the plaintiff’s income will temporarily be limited at some time due to the effects of the accident related injuries. Taking into account the prospects for shoulder surgery, all negative and positive contingencies faced by the plaintiff and other features of the post-accident symptoms and limitations caused by the accidents, I award him $25,000 for damages for future income impairment.

https://www.courts.gov.bc.ca/jdb-txt/sc/18/18/2018BCSC1866cor1.htm

When assessing the plaintiff's future wage losses, the judge was bound by the facts of the case. The judge had to consider all reasonable possibilities of future employment for the plaintiff, which meant a consideration of limitations in employment prospects caused by a criminal record.

Furthermore, a history of fraudulent activity can affect your credibility, as a whole. In another Supreme Court of British Columbia case a judge considered a plaintiff's history of fraud in their findings on the plaintiff's credibility:

[255]     There is a paucity of reliable and credible evidence to persuade the Court that the plaintiff has suffered any economic loss. In the past, she has demonstrated a propensity to be untruthful to improve her economic circumstances when convenient. She has persisted in these habits for many years and continues notwithstanding a recent conviction for fraud. She has lied to the CRA, to CPP, to her doctors and to the Court. I have no confidence that most of what she has said were reliable or true. I am compelled to disregard any of her evidence concerning her income loss claim.

https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc385/2016bcsc385.pdf

In this case the judge denied the plaintiff's claim for future wage losses entirely. The claim was based solely on the credibility of the plaintiff, who did not provide any objective evidence to corroborate their claim. 

Who's at fault for a parking lot collision?

Personal injury claims involving parking lots have a unique set of challenges. Most notably, liability is often disputed. Driver's often back up out of spots, which makes it difficult for them to see other vehicles. Other challenges, such as pedestrians, obstacles, reduced visability, and tight spaces, are present. The driver of one vehicle will often see the other vehicle and stop only to be struck by that second driver. The challenge then becomes establishing who was stopped and who was backing up just prior to impact. 

Generally, the best thing to do if you are involved in a car accident in a parking lot is to gather as much evidence as possible. The best kind of evidence is a video camera. Often surrounding businesses will have cameras pointed into their parking lots. However, most businesses will not save their video recordings unless there has been an incident reported immediately. You should, therefore, make immediate efforts to canvas surrounding businesses looking for camera and other evidence.

Another source of solid evidence is a third party witness. The courts generally cannot take the side of one party over another, unless there is evidence to sway their opinion towards one side or the other. Third parties, who have no affiliation to either of the parties actually involved in an accident, can be great sources of such evidence.

Other sources of evidence such as forensics and engineers can be expensive and not always persuasive. An expert can be used to establish the mechanism of an accident. However, forensics and engineers reports typically cost around $10,000 and often cannot definitely prove fault. 

According to ICBC, parking lot accidents peak around the holidays:

https://www.richmond-news.com/news/mall-parking-lot-car-crashes-peak-during-holidays-icbc-1.23504126

The parking lots are packed and people are rushing to get their holiday shopping done. Given the challenges of establishing fault in a parking lot accident, it's best to drive overly cautiously in a parking lot and do your best to avoid motor vehicle collisions all together. That being said, you can only do so much to prevent injury from the negligence of others. 

Personal injury claims and pre-existing psychological disorders.

How do the courts deal with pre-existing psychological disorders? The goal of the court process is to provide financial compensation to injured parties to compensate them for actual losses. Thus, the courts must take into account a plaintiff's pre-existing psychological state. In this recent supreme court of British Columbia case, the courts were left with the difficult task of assessing an award for a plaintiff who had suffered from major depression after a car accident but who also had pre-existing psychological issues:

https://www.courts.gov.bc.ca/jdb-txt/sc/18/18/2018BCSC1833.htm

The judge, in coming to his decision, referenced case law, which highlighted the potentially large impact of psychological injuries on the life of an injured party: 

"The loss of our mental health is a more fundamental violation of our sense of self than the loss of a finger"

The plaintiff did have a history of depression, but due to a motor vehicle accident developed major depressive disorder and a conversion disorder. She had two doctors who stated that the motor vehicle accident had been a major factor in the development of her more severe current psychological issues. The judge agreed and stated that although the plaintiff's pre-existing psychological state was not "pristine", she was entitled to compensation for the injuries she sustained in the accident, both physical and psychological. The judge awarded the plaintiff $105,000 for pain and suffering, a sum which took into account "real and possible future possibilities" including the potential future effects of the plaintiff's pre-existing injuries. 

Retirement age: making claims for employment losses past 65.

At one point, it was common for people to retire at the age of 65. As medical knowledge and financial obligations have increased, many people are working beyond this age, and retirement ages among individuals vary considerably. The courts are often left in a position where they have to estimate retirement ages for individuals, whose retirement has been accelerated due to injuries sustained in a car accident. 

Generally, this task involves the assessment of a variety of factors and is done on a case by case basis. In this recent British Columbia Court of Appeal decision, the appeal tribunal ruled that the trial judge had erred in his decision by putting too much emphasis on the average age for retirement within the plaintiff's union, and not taking into account individual factors that would likely extend the plaintiff's working age:

https://www.canlii.org/en/bc/bcca/doc/2018/2018bcca366/2018bcca366.pdf

In this case, the trial judge found that the plaintiff, who retired at the age of 65, would have done so regardless of any accident injuries, as the average age for retirement in his union was 61. The judge failed to take into account: 1) that the plaintiff had started working in his union (and contributing to his pension) in his 40s, which was  much later than average age; and that the plaintiff lived alone and was, therefore, less likely to retire early to spend time with his family. The judge's decision was overturned, and the plaintiff was awarded compensation for a hypothetical retirement age of 69 years old. 

"In Trust" claims: financial compensation for care provided by family members.

An "In Trust' claim is a claim for past services provided by friends and family. The courts allow a plaintiff to make a claim for these services, typically provided for free, as though they had been paid services.

As in, Bystedt v. Hay, 2001 BCSC 1735, the factors to be considered when making a claim for an “in trust” award are:

1. the services provided must replace services necessary for the care of the plaintiff as a result of a plaintiff’s injuries;
2. if the services are rendered by a family member, they must be over and above what would be expected from the family relationship (here, the normal care of an uninjured child);
3. the maximum value of such services is the cost of obtaining the services outside the family;
4. where the opportunity cost to the care-giving family member is lower than the cost of obtaining the services independently, the court will award the lower amount;
5. quantification should reflect the true and reasonable value of the services performed taking into account the time, quality and nature of those services.  In this regard, the damages should reflect the wage of a substitute caregiver.  There should not be a discounting or undervaluation of such services because of the nature of the relationship; and
6. the family members providing the services need not forego other income and there need not be payment for the services rendered.

What this means is that if family members or friends care for you following a car accident, you may be able to make a claim for those services, whether or not you actually paid for them. Many plaintiffs have limited economic means following a disabling injury and become more dependent on people close to them for help. In-trust awards can allow economically disadvantaged plaintiffs to make claims for their care. 

In order to make a claim for these services, you must claim them in your Notice of Civil Claim. Also note that an In-Trust award is distinct from a claim for services provided by a paid professional, which must be claimed separately. 

Can stay at home parents make claims for wage losses?

The short answer is yes. This issue was dealt with in this recent Supreme Court of British Columbia case:

http://www.courts.gov.bc.ca/jdb-txt/sc/18/12/2018BCSC1200.htm

Here, a young woman and mother to 3 young children was injured in 2 separate motor vehicle accidents. The plaintiff intended to stay out of the workforce until her youngest child had entered school, which was approximately 5 years from the date of trial. The judge stated:

"[187]     Ms. Barna takes care of her three children with the assistance of her husband.  Child minding is hard work and it is clear that Ms. Barna does it to the greatest extent of her abilities because her family needs her.  She endures significant pain, and she does as much as she can because of her commitment to her family."

The judge found that the plaintiff was likely to suffer a permanent reduction in her capacity to work due to chronic pain and was likely to be limited to a 3 hour work week upon her return to work. The judge decided this was equivalent to a 40% reduction in work capacity and awarded the plaintiff an amount equivalent to 40% of earnings calculated from the plaintiff's intended return to work to retirement at age 65. The judge speculated that the plaintiff would have earnings of approximately $35,000/year and awarded her $340,000 for "Future Loss of Earning Capacity". The plaintiff was awarded a further $125,000 to compensate them for "Future Cost of Care", which included assistance with "homemaking services", including grocery delivery and gardening. 

This case illustrates how the courts will apply legal principles to cases of speculative earnings to ensure that plaintiff's are fairly compensated for their losses. It also illustrates how the law is shifting to further acknowledge the value of stay at home parents.