22 Dec Positive and Negative Contingencies Can Affect Loss of Future Earning Capacity

The Plaintiff in Niescierowicz v. Brookes, 2020 BCSC 1590, was an immigrant to Canada. She planned to open a daycare in her home once she became proficient in English. The judge agreed that the Plaintiff would have eventually opened her own daycare.

With respect to loss of future earning capacity, the judge estimated that the Plaintiff could have grossed $54,000 annually for 13 years.  Using a capital asset approach with a prescribed discount rate, the present value was $633,501.

That amount had to be adjusted for positive and negative contingencies. Positive contingencies referred to the possibility that the Plaintiff might be able to earn more income than anticipated. Negative contingencies referred to the possibility that the Plaintiff might not be as economically successful as projected.

The judge placed little weight on ICBC’s assessment of contingencies because ICBC believed there was nothing wrong with the Plaintiff at all. ICBC argued that the Plaintiff was not capable of creating and operating a successful daycare business, even before the accident. That position was unsupported by the evidence.

With respect to positive contingencies, although the Plaintiff’s conditions were chronic, the medical experts agreed the Plaintiff might improve to the point that she could resume most daily activities and perform some part-time voluntary work. However, there was no realistic possibility that the Plaintiff would ever earn an income.

The judge considered two negative contingencies significant. The first concerned the Plaintiff’s English language skills. There was a real possibility that it would have taken her longer to acquire sufficient proficiency to make her employable at an English-speaking daycare.

Second, it was possible that the Plaintiff would have chosen to work part-time and/or to retire earlier than age 70. The judge appreciated that she had a real motivation to work. However, her family was the central focus of her life. The judge considered it likely that the Plaintiff would have reduced her working time and/or retired earlier than 70 if she had grandchildren.

After taking into consideration the positive and negative contingencies, the court awarded the Plaintiff $500,000 for loss of future earning capacity.