Legal Insights / Personal Injury / Calculation Of Damages Under The New Minor Injury Caps – According To The CRT – Is Misleading

Calculation Of Damages Under The New Minor Injury Caps – According To The CRT – Is Misleading

Nov 4 2019

In a previous article, we explained how the government and ICBC are misleading the public when it comes to the keys with which they say an accident injury victim can negotiate with ICBC through the Civil Resolution Tribunal (CRT). In this article, we will provide further insight into the issue.

On its website, the CRT has published a worksheet purportedly for the benefit of the public to calculate the amounts for one person’s damages. In doing so, however, the CRT misstates the law with respect to future diminished income earning capacity by describing such a loss as “…where you are unable to work in the future because of the accident”.

This is a blatant misstatement of the law of British Columbia when it comes to loss of future earning capacity. A person injured in an accident in British Columbia does not need to prove they are unable to work in the future in order to receive compensation. On the contrary, established case law has repeatedly recognized that ongoing impairment to earn income from physical and psychological injuries are compensable as long as they are “real and substantial”.

Assessing Claims For Loss Of Future Earnings

Factors used by the courts to assess claims for loss of future earning capacity include:

  • Has the injured person been rendered less capable overall of earning income from all types of employment?
  • Is the injured person less marketable or attractive as an employee to potential employers?
  • Has the injured person lost the ability to take advantage of all potential job opportunities which otherwise might have been open to him or her but for those injuries?
  • Is the injured person less valuable to herself or himself as a person capable of earning income in a competitive labor market?

So, as the Trial Lawyers Association of British Columbia (TLABC) has pointed out, rather than using a court-based analysis for claims involving loss of income earning capacity (which is still the law), the new CRT worksheet invites the public to try and predict and then calculate their own future losses – a supreme feat of speculation for anyone.

Adding To The Confusion

The CRT worksheet poses inappropriate – and sometimes impossible questions – of people including: “How much time you expect to miss from work? What’s your salary or hourly rate? Do you think you will miss any opportunities to earn income? Do you think that there is an impact on your ability to work?”

As the TLABC points out, “How can a car crash victim, minus any medical evidence or foresight, be expected or required to answer these questions in any meaningful or reliable way?”

Ensuring Fairness

To ensure fairness, what the CRT does not offer the inquiring public is any suggestion that if an injured person believes she or he has sustained a substantial loss of earning capacity, their injuries may be enough to remove them from the “minor injury” designation and that they should consider challenging the designation rather than go along with it.

Injured victims of car accidents are not been well served under this new legislation and, as it has been pointed out previously, it is a veritable minefield for the public.

If you have been injured in a car accident and you disagree with ICBC’s suggestion that you may fit within the “minor injury” designation, you should consider contacting an experienced personal injury lawyer for further advice. At RDM Lawyers, we have been helping injured victims of car accidents in British Columbia for over 40 years and have a team of experienced personal injury lawyers available to assist you.

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